1. Definitions; agreed terms
The term “Buyer” means NUBES International AG or any company that is (a) a subsidiary or an affiliate of, or is related to NUBES International AG and (b) the entity procuring goods, or for whose account goods are being procured, hereunder. The term “Supplier” means any individual, corporation or other entity that is to perform, or provide the goods, under this Purchase Order. Purchase Order (“PO”) means these General Conditions of Purchase, the Purchase Order and any other documentation which is specified in the Purchase Order. The term “goods” means all items, materials, equipment, labor or other services that are the subject of this purchase.
Where these Terms and Conditions are attached to a contract, references herein to a PO shall as necessary be deemed to be references to that contract.
2. Conditions and acceptance of the PO
All orders are placed subject to the conditions set forth or referred to in this PO, which will apply notwithstanding and to the exclusion of any provisions to the contrary in the Supplier’s conditions of sale or otherwise.
Except otherwise established in any specific agreement with Buyer, Supplier is requested to sign and return a copy of this PO within 2 days after receipt. After a 2 day period with no response, or the commencement of the provision of the goods, Buyer understands that Supplier agrees to all of the terms hereof.
3. Fixed Price
The price stated in this PO is a fixed and complete price and will not be varied for any reason without the express consent in writing of the Buyer. The price includes all taxes to be paid at the point of delivery.
4. Invoice and payment
Invoices referencing Buyer’s PO number shall be issued by Supplier as of delivery. The invoice should show only the costs/expenditures that are included in the PO. All invoices including items not listed in the Purchase Order and invoices not following the NUBES International AG Invoicing Requirements, may result in the return of the invoice and delay in payment, payments arriving at Supplier’s bank account after the due date as a result of this will not be considered as late payments. Invoicing and payment references should be stipulated on the PO or in any related contract. Payment does not constitute a waiver of any of the Buyer’s rights comprised in this order.
Supplier warrants that the goods referred to in this PO will be correctly packaged and provided with the appropriate markings according to any applicable laws and regulations. The Buyer will pay no packing charge unless specified in this PO. Goods that require special packaging or a particular way of handling must carry the appropriate markings on the packaging, allowing accident-free unloading to take place. The Supplier must also warn the Buyer of any precautions to take when unloading dangerous or radioactive products. For any goods that are defined as hazardous or dangerous under applicable law, regulation and/or NUBES International AG regulations/policies, Supplier will provide Buyer with hazardous warning and safe handling information in the form of a safety data sheet and appropriate labeling for such goods as required by such applicable law and/or NUBES International AG regulations/policies.
Deliveries shall be made at Supplier’s expense to Buyer’s plant or as otherwise indicated. Receipt of the goods does not constitute final acceptance thereof. Delivery of services can be subject to the signature of the acceptance protocol/memorandum, as the case may be. The Buyer will have the right to return or reject non-satisfactory or non- required goods with any resulting cost paid by Supplier.
Supplier will not assign this PO or any of its rights or obligations hereunder without the prior consent in writing of the Buyer. The relations are intuitu personae and cannot be transferred without Buyer’s express written agreement.
Buyer may, at any time, by ten days prior notice in writing, make changes to the quantity of goods ordered (within a range of +/- 10%) as well as the date of delivery of goods ordered (within a range of one week). If any such change causes an increase or decrease in the cost of or time required for the performance at work under this PO, an equitable adjustment, subject to the approval of Buyer, will be made to the price or delivery schedule, or both, and this PO will be modified in writing accordingly. Any other change will require agreement between the parties.
9. Liquidated Damages for Delays Clause
If the Supplier fails to deliver all or any of the goods comprised in this PO within the time specified in this PO, Buyer is entitled to claim liquidated damages amounting to 1% of the PO price per day of delay with an upper limit of 10%, except that a different percentage is agreed and included in this PO. Notwithstanding the above, Buyer at its option, may also decide to terminate the PO and claim for additional damages under the terms here of.
Supplier warrants that (a) the goods to be supplied to the Buyer hereunder will conform to the specifications, description and drawings, if any, and all agreed conditions set forth or referred to in this PO, (b) such goods will be free from defects in design, material and workmanship, (c) Supplier possesses the skills, professional ability, permits, licenses and certificates necessary to provide the goods, (d) the goods do not infringe any third party intellectual property rights and (e) Supplier declares the lawful origin of the delivered goods and warrants that it has good and full title to the Goods, free and clear of all security interests, liens, charges and other encumbrances.
Unless a longer period is specified by law or in a separate agreement between Buyer and Supplier, such warranties will extend for a period of eighteen (18) months from the receipt by the Buyer of the goods or one (1) year from the date of installation of such goods, whichever first occurs.
For breach of any of the above warranties and in addition to all other remedies that the Buyer may have, Supplier, at its sole expense, will (a) replace the defective goods with conforming goods at Buyer’s Plant where the goods were originally shipped. Only in case that replacement is not feasible within the timeframe required by Buyer or if it is otherwise required under country legislation, at Buyer’s option Supplier will (b) repair the defective goods or (c) repay to Buyer the purchase price of the defective goods.
If Buyer selects repair or replacement, any defects will be remedied without cost to Buyer, including but not limited to, the costs of removal, repair and replacement of the defective goods, and reinstallation or delivery of new goods. All such defective goods that are so remedied will be equally warranted as stated above. Supplier further warrants that Supplier will convey good title to the goods to be supplied to Buyer hereunder and that such goods will be delivered free from any security interest, lien or encumbrance. Payment will not be claimed by Supplier as a waiver, release or acceptance to avoid fulfillment of the warranty clause. Should the Supplier fail to remedy any defects or replace defective goods within the time specified by Buyer, the Buyer may order the repairing on his own. Supplier will pay for any resulting costs.
These warranties are in addition to all other warranties, express, implied or statutory, which may be applicable according to the PO. All warranties and other provisions of this paragraph will survive inspection or acceptance of and payment for the goods and completion, termination or cancellation of this PO.
In the event that delivery of all or any of the goods comprised in this PO is not effected within the time specified in this PO, which will be deemed to be of the essence, or in the event of any other breach or non-observance by the Supplier of any other terms of this PO, the Buyer will have the right to terminate this PO within the shortest possible time in whole or in part by providing written notice, in accordance with the applicable legislation, without prejudice to the right of the Buyer to damages for breach of contract as well as to the agreed liquidated damages amounting to 5% of the value of the PO unless otherwise specified herein or in the PO. Buyer will also have the right to immediately terminate this PO, in accordance with the applicable legislation, if the Supplier becomes insolvent, bankrupt or goes into liquidation (other than voluntary liquidation for the purposes of merger or reconstruction).
Buyer will have the right to cancel this PO by ten days’ prior notice in writing to Supplier at any time prior to complete performance by the Supplier without any liability other than for the payment of the price as set out in the PO for the goods already delivered or those in the course of delivery at the time of the termination notice. The price of such unfinished goods shall be based on the actual out-of-pocket costs and expenses incurred prior to termination provided that the amount to be paid will in no event exceed the total price set out in this PO. Supplier will deliver to the Buyer all such unfinished goods. Nothing herein contained will affect the Buyer’s right to cancel this PO under any of the terms of this PO or of these conditions or to pursue other remedies available to the Buyer.
13. Limitation of liability
Buyer shall in no case be liable to Supplier for loss of use of any works, loss of profit, loss of business, loss of any contract or for any indirect, special or consequential loss or damage which may be suffered by Supplier in connection with the contract.
All information disclosed by the Buyer be it orally or in writing including but not limited to patterns, drawings, documents, software or other media containing specifications, information or data will be maintained in confidence by Supplier and either certified to be destroyed or returned in good order and condition on completion of this PO or on prior request by the Buyer and will not be published or disclosed to any third party nor copied or used for any purpose other than the fulfillment of this PO, without the prior written approval of the Buyer.
15. Company Name/Logo
Seller may not use the Buyer’s company name and/or logo in any manner other than as may be identified in this PO without first obtaining written permission from Buyer.
Material supplied to Global Aviation & Industry Services must be traceable back to source.
All ordered items shall be accompanied by documents showing full traceability of the items to the original manufacturer or approved source. All delivered items must be send with its certificate of conformity and/or test report and/or airworthiness certificate. Records are to be maintained tracing all materials used in the manufacturer of each batch of product back to the original supplier of the materials. These records must be maintained for a minimum period of ten (10) years. Records shall be stored to prevent damage, deterioration or loss. Material shall be Factory New (FN). Shelflife limited items shall have at least eightypercent (80%) if not expressly accepts by NUBES Industries in written.
17. Force Majeure
Force Majeure shall mean all situations or events which are unpredictable or unexpected or, if they could have been predicted, are unavoidable and beyond the reasonable control of the parties after placement of the PO including but not limited to war, natural disasters, freight embargoes as well as governmental acts or regulations and coercive measures. Force Majeure prevents any contractual party to perform its obligations under this PO in whole or in part, it will notify the other party as soon as possible after knowledge of these circumstances unless a different period is agreed in the PO. The notice shall, if possible, state the obligation the party cannot fulfill in part or as a whole provided such assessment is possible at that moment. Should the corresponding contractual party fail to fulfill the requirement of notification, it may not claim Force Majeure. In the event of Supplier claiming Force Majeure, Buyer shall be entitled to withdraw from the PO in whole or in part without any liabilities.
18. Governing Law
This general terms and conditions based on completed contracts are subject to Swiss substantive law.
19. The exclusive jurisdiction
For all disputes is Risch, canton Zug, Switzerland
20. Order of Precedence
In the event of conflict, the terms of the PO shall prevail over those of these General Terms and Conditions of Purchase.
If any term, provision, covenant or condition of this PO is held invalid or unenforceable for any reason, the remaining provisions of this PO shall continue in full force and effect as if this PO had been executed with the invalid portion eliminated, provided the effectiveness of the remaining portions of this PO will not defeat the overall intent of the Parties. In such a situation, the Parties agree, to the extent legal and possible, to incorporate a replacement provision to accomplish the originally intended effect.