Conditions of Purchase
As stated in Clause 2.(A) below, these General Terms and Conditions of Purchase are an attachment to and form an integral part of all Orders issued by the Buyer
GENERAL TERMS AND CONDITIONS OF PURCHASE
TABLE OF CONTENTS:
1. DEFINITIONS AND INTERPRETATION.
2. ORDERS
3. ACCEPTANCE AND MODIFICATIONS.
4. CHANGES.
5. DELIVERY.
6. TITLE AND RISK OF LOSS.
7. PRICE AND PAYMENT.
8. WARRANTIES.
9. GUARANTEES.
10. QUALITY ASSURANCE; INSPECTION.
11. INTELLECTUAL PROPERTY.
12. CONFIDENTIAL INFORMATION.
13. COMPLIANCE WITH LAWS.
14. INDEMNITY.
15. INSURANCE.
16. LIABILITY.
17. SUSPENSION.
18. FORCE MAJEURE.
19. TERMINATION FOR CONVENIENCE.
20. TERMINATION FOR DEFAULT.
21. LAW AND VENUE.
22. MISCELLANEOUS.
1.DEFINITIONS AND INTERPRETATION (back to contents)
| Buyer | Lageen Ltd., and/or Lageen Food Packaging Ltd., and/or Lageen Tuboplast Ltd., and/or Lageen Tubes International 2007 Ltd., including any of their respective subsidiaries, affiliates, successors, assignees or designees, as specified in the Order; |
| Goods | Goods described in the Order; |
| Order | The purchase order issued by Buyer for the purchase of Goods and/or Services; |
| Seller | The supplier of the Goods and/or provider of the Services to Buyer described in the Order; |
| Services | Services described in the Order; |
| Subcontractors | Including suppliers; |
| Technical Documents | Specifications, drawings, designs and any other technical documents forming an integral part of an Order. |
In the event of any inconsistency or discrepancy between provisions in the body of an Order, Technical Documents and/or these General Terms and Conditions, the following order of precedence shall apply: (i) the Order; (ii) the Technical Documents; and (iii) these General Terms and Conditions. Clause headings are for the sake of convenience only and shall not affect the interpretation of these General Terms and Conditions.
2. ORDERS (back to contents)
(A) The Technical Documents and these General Terms and Conditions form an integral part of any Order. All references to the term “Order” hereunder shall be read as including the Technical Documents and these General Terms and Conditions.
(B) Seller shall provide the Goods and perform the Services described in any Order issued by Buyer and accepted by Seller from time to time, in accordance with the applicable Order.
(C) The applicable Order (together with the Technical Documents and these General Terms and Conditions) shall constitute the entire agreement between Seller and Buyer. Prior negotiations, proposals and/or communications shall have no effect.
(D) EACH ORDER SHALL NOT BE VALID UNLESS SIGNED (OR AUTEHNTICATED IF AN ELECTRONIC ORDER) BY BUYER’S AUTHORIZED REPRESENTATIVE.
3. ACCEPTANCE AND MODIFICATIONS (back to contents)
(A) An Order is Buyer’s offer to Seller and acceptance of such offer by Seller. The acceptance of Buyer’s offer is expressly limited to its terms without additions, deletions or other modifications. Any terms and conditions contained in any acknowledgment, invoice or other communication of Seller, which are inconsistent with the terms and conditions of the corresponding Order are hereby rejected and shall have no bearing on the transactions resulting from any Order.
(B) Seller’s confirmation or acknowledgement of the Order or commencement of performance thereof shall constitute Seller’s acceptance of the Order.
4. CHANGES (back to contents)
(A) Buyer may, by written notice, make changes to any Order in one or more of the following: (i) contents of, and requirements under, any Technical Documents (such as specifications, designs or drawings), (ii) method of shipment or packaging, (iii) place of inspection, delivery or acceptance, and (iv) quantity.
(B) If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work in the Order, Buyer and Seller shall agree on an equitable adjustment in the price or delivery schedule of the Order. Notwithstanding the foregoing, if Seller believes that such change increases the cost of, or the time required for, the performance of any part of the work in the Order, Seller shall request Buyer an adjustment in price and/or delivery schedule of the Order. Such request shall be in writing, delivered to Buyer within seven (7) calendar days from receipt of the notice of change, and accompanied by adequate supporting documentation. Failure by Seller to deliver such request within the time required shall be deemed as waiver by Seller of any adjustment.
(C) Seller shall not suspend performance of any portion of the Order, which is not affected by the notice of change, unless otherwise instructed in writing by Buyer.
(D) Except as specified above, no changes, amendments or modifications to the terms and conditions of any Order shall be valid unless agreed in writing by Buyer and Seller.
5. DELIVERY (back to contents)
(A) Delivery of the Goods and Services shall be made pursuant to the time schedule, under the delivery terms, and to the place specified on the applicable Order. If no time schedule is specified, the Order shall be filled promptly and delivery shall be made by the most expeditious form of transportation. In case of Goods, if no delivery terms are specified, DDP Port of Haifa (per Incoterms 2000) shall apply. Buyer reserves the right to decline to accept and/or to return any Goods or Services received in advance of the delivery schedule and any Goods or Services received in excess of, or less than, the quantities specified in an Order. All costs and risks entailed in declining to accept and/or returning Goods or Services to Seller shall be borne by Seller.
(B) Time is of the essence in performing any Order. Should Seller experience or anticipate any delay in performing an Order, Seller shall immediately notify Buyer in writing of such delay, its expected duration, the reasons thereof and the remedial actions it takes or anticipates to take. Such notification or acknowledgement by Buyer shall not relieve Seller from its obligations or constitute a waiver of the Order’s delivery schedule or any other right of the Buyer. Without derogating from the foregoing, if Seller fails or it is anticipated that Seller shall fail to deliver the Goods or Services within seven (7) calendar days from the time schedule specified on an Order, Buyer may, at its option: (i) decline to accept the Goods or Services and terminate the Order, or (ii) accept any portion of the Goods or Services ordered and terminate the balance of the Order; and any advance payment against which no Goods or Services have been accepted shall be promptly returned to Buyer. All costs and risks entailed in declining to accept and/or returning Goods or Services to Seller shall be borne by Seller. In addition, unless the Buyer exercises option (i) above and terminates the Order, then in case of any delay in performing an Order (including in performing any milestone forming part thereof) exceeding seven (7) days from the time schedule, Seller shall pay to Buyer (at Buyer’s request) liquidated damages for delay in the amount of one percent (1%) of the total price of the applicable Order per each day of delay (or part thereof) up to a maximum amount of fifteen percent (15%) of the total price of the applicable Order. Seller acknowledges that the sums specified above represent reasonable estimations of the loss or damage that Buyer is likely to incur in case of delay. Payment of any liquidated damages by Seller, the right of Buyer to decline acceptance of Goods or Services, or the right of Buyer to terminate an Order or any part thereof, shall not relieve Seller from any of its obligations under the applicable Order or derogate from any other rights or remedies available to Buyer thereunder or under any applicable law.
(C) Seller shall pack all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify its contents without having to be opened, and all boxes and packages must contain packing sheets listing the contents. Buyer’s count will be accepted as final and conclusive on shipments not accompanied by packing lists. Costs for packing, shipment and handling are included in the total Order price
(D) Seller shall provide Buyer, within three (3) calendar days following shipping of the Goods, with all copies of packing lists, delivery tickets, bills of lading, warehouse receipts and all other shipping documents. Buyer’s Order number must appear on all shipping containers, packing lists, delivery tickets, bills of lading, warehouse receipts and all other shipping documents.
(E) Seller shall provide Buyer, together with the Goods and/or Services delivered, with full technical documentation relating thereto (including, without limitation, operating and maintenance documentation), together with a detailed list of spare parts and corresponding prices, to Buyer’s full satisfaction.
(F) Partial shipments shall be allowed with the prior explicit written approval of Buyer. At any rate, partial shipments shall not make the obligations of the Seller hereunder severable.
6. TITLE AND RISK OF LOSS (back to contents)
(A) Title to the Goods shall pass to Buyer upon receipt of the Goods by Buyer at the designation specified in the applicable Order. Notwithstanding the foregoing, if Buyer makes any payment prior to receipt of Goods, title to the Goods shall pass to Buyer upon manufacturing of the Goods or their identification to the applicable Order. Seller shall clearly identify the Goods as Buyer’s property by visible marking or tagging and Buyer shall have the right to inspect and verify the same.
(B) Seller assumes all risk of loss or damages to the Goods until they are delivered to the designation specified in the applicable Order. If the Goods are destroyed prior to risk of loss or damages passing to Buyer, Buyer shall have the option to either cancel the Order or require Seller to deliver substitute Goods of equal quantity and quality. Such substitute delivery shall be made as soon as commercially practicable. If loss of Goods is partial, Buyer shall have the option to require Seller to deliver the Goods not destroyed upon the terms of the applicable Order.
7. PRICE AND PAYMENT (back to contents)
(A) As full consideration for the performance by Seller of its obligations under any Order, Buyer shall pay Seller the amount agreed upon and specified in the applicable Order. Unless expressly provided otherwise in an Order, applicable taxes and other charges such as packing costs, shipping costs, duties, and customs shall be borne by Seller.
(B) Payments due to Seller shall be paid on such terms as described in the Order.
(C) All payments hereunder shall be made subject to all applicable withholding obligations under applicable law. Payment shall not relieve Seller from its obligations hereunder or constitute acceptance by Buyer or derogate from any rights Buyer might have under the applicable Order and/or under law.
8. WARRANTIES (back to contents)
(A) Seller warrants that all Services shall be performed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures in accordance with the applicable Order, and shall be suitable for the purposes contemplated therein.
(B) Seller warrants that all Goods delivered will be new, not used or refurbished, and free from defects in materials and workmanship. All Goods delivered shall conform to the applicable Order, and shall be suitable for the purposes contemplated therein. Unless expressly provided otherwise in the Order, Seller warrants that all Goods delivered shall be clear of any malfunction, damage or defect for a period of forty-eight (48) months from commencement of commercial operation of the entire desalination facility or sixty (60) months from the date of delivery to Buyer, whichever is earlier.
(C) In case any malfunction, damage, defect or non-compliance with the terms of an Order is discovered in the Goods during the warranty period specified in paragraph (B) above, Buyer will notify Seller. Promptly upon receipt of such notice, but in no event later than fourteen (14) calendar days thereafter, Seller shall, at its expense (including manufacturing, transportation, packing and reinstallation costs), either repair or replace such Goods, as instructed by Buyer. Repaired and replaced Goods shall be warranted for the remainder of the warranty period specified in paragraph (B) above or twelve (12) months, whichever is longer. Nothing contained herein shall derogate from Buyer’s rights and remedies under applicable laws.
(D) Upon the expiry of the warranty period specified herein, Seller shall assign to Buyer the benefit of all Subcontractors’ warranties that any Subcontractor has given or undertaken to Seller.
(F) Seller warrants availability of spare parts for fifteen (15) years and spare parts prices for five (5) years, from delivery of the documentation specified in paragraph 5(E) hereof (without imposing on the Buyer any obligation to purchase such spare parts from Seller).
(G) Seller warrants that all Goods and Services provided shall be free and clear of any and all liens, restrictions, reservations, security interests and encumbrances.
(H) Seller warrants that the performance of its obligations under any Order, will not conflict with, or be prohibited in any way by, any other agreement, obligation or statutory restriction to which Seller is bound.
(I) The above warranties are in addition to all other Seller’s warranties and guarantees described in any Order or Technical Document, or otherwise prescribed, expressly or impliedly, by applicable laws.
9. GUARANTEES (back to contents)
(A) In the event that any Order provides for Buyer making any payment prior to delivery of the Goods at Buyer’s site and/or prior to completion of the Services, such payment shall only be made against receipt by Buyer of an unconditional bank guarantee payable on first demand and from time to time, in the amount of the advance or interim payment, in a form, and issued by a first class bank, acceptable to Buyer. The advance payment bank guarantee shall be valid until final delivery of the Goods at Buyer’s site or completion of the Services, for which such advance or interim payment was provided, to Buyer’s full satisfaction, and shall be returned to Seller within thirty (30) calendar days thereafter. All costs associated with the provision of such guarantee shall be borne by Seller.
(B) Unless expressly provided otherwise in an Order and without derogating from the provisions of paragraph (A) above, in the event that an Order is issued for the delivery of both Goods and Services (e.g. installation and commissioning), then within ten (10) calendar days following acceptance of such Order by Seller, Seller shall provide Buyer with an unconditional performance bank guarantee payable on first demand and from time to time, in the amount of ten percent (10%) of the price of the Order, in a form, and issued by a first class bank, acceptable to Buyer. Such performance bank guarantee shall be valid until final delivery of the Goods and completion of the Services, to Buyer’s full satisfaction. Upon expiry of the performance bank guarantee, Seller shall provide buyer with an unconditional warranty bank guarantee payable on first demand and from time to time, in the amount of five percent (5%) of the price of the Order, in a form, and issued by a first class bank, acceptable to Buyer. Such warranty bank guarantee shall be valid until the end of the warranty period and shall be returned to Seller within thirty (30) calendar days thereafter. All costs associated with the provision of such guarantees shall be borne by Seller.
(C) All guarantees provided by Seller to Buyer shall serve as security for the timely and proper performance by Seller of its obligations hereunder.
10. QUALITY ASSURANCE; INSPECTION (back to contents)
(A) Seller shall maintain an effective quality assurance and quality control procedures. Seller shall have in place a comparable quality plan with its Subcontractors (if any). Seller shall provide to Buyer, at Buyer’s request, Seller’s documents relating to any applicable quality control requirements. Seller shall permit Buyer (and any other person authorized by Buyer) to inspect its facilities, including, without limitation, production process facilities. Buyer shall provide Seller with reasonable notice prior to such visits and conduct them during Seller’s normal business hours. To assist Buyer in its inspection, Seller shall provide Buyer with appropriate testing and measuring devices. In addition, during such inspection, Seller shall make the documents relating to any applicable quality control requirements available to Buyer for its review. Seller shall cause any Subcontractor to provide Buyer with similar documents and to permit Buyer (and any other person authorized by Buyer) to perform similar inspections at Subcontractor facilities, and shall include provisions to this effect in its contracts with such Subcontractors.
(B) Buyer (and any other person authorized by Buyer) shall have the right to inspect the Goods in Seller’s facilities or in its Subcontractors’ facilities, prior to their delivery. In addition, Buyer (and any other person authorized by Buyer) shall have the right to be present during any testing performed by Seller or its Subcontractors prior to delivery of the Goods. Seller shall notify Buyer of the dates for which the Goods will be available for inspection and the dates during which pre-delivery testing will be run on the Goods, as soon as possible following issuance of the applicable Order. For the purpose of conducting such inspections and/or being present during the pre-delivery testing, Seller shall grant Buyer (and any other person authorized by Buyer) access to its facilities, including, without limitation, production process facilities, and cause its Subcontractors to grant Buyer (and any other person authorized by Buyer) similar access rights to their facilities. Without derogating from any of the foregoing, Seller undertakes to cooperate with Buyer. Seller shall include provisions to this effect in its contracts with such Subcontractors.
(C) THE SELLER SHALL NOT SHIP GOODS WITHOUT EITHER BUYER’S FINAL INSPECTION OR RECEIPT FROM BUYER OF A SPECIFIC WRITTEN WAIVER OF INSPECTION.
(D) Buyer shall have the right to reject nonconforming Goods. Nonconforming Goods may be returned by Buyer to Seller at Seller’s expense and risk.
11. INTELLECTUAL PROPERTY (back to contents)
(A) Seller warrants that all Goods delivered and Services performed shall not constitute an infringement or violation of intellectual property rights of any third party, including patents, trade secrets, copyrights, trade names, trade marks or other intellectual property rights arising out of the manufacture, use or sale of any Goods or Services, or any part thereof.
(B) Seller shall, at its sole expense, indemnify and hold harmless Buyer, its officers, directors, customers, agents and employees from and against, any and all losses, damages and liabilities incurred by Buyer, its officers, directors, customers, agents and employees, on account of any infringement or violation of intellectual property rights, including patents, trade secrets, copyrights, trade names, trade marks or other intellectual property rights arising out of the manufacture, use or sale of any Goods or Services, or any part thereof. Furthermore, Seller shall, at its own expense, defend all claims, suits and actions against Buyer, its officers, directors, customers, agents and employees in which such infringement or other violation of an intellectual property right is alleged. Buyer shall promptly notify Seller of any such claim, suit or action and Seller shall be given adequate authority, information and assistance (at Seller’s expense) for the defense of Buyer, subject to the right of Buyer to participate in the defense and to be fully advised by Seller in advance of all actions taken. In case the manufacture, use or sale of such Goods or Services or any part thereof is held to constitute an infringement or violation of intellectual property rights, regardless of whether such determination constitutes a final judgment, Seller shall at its expense, either procure for Buyer the right to use and transfer said Goods or Services or any part thereof, replace same with substantially equal but non-infringing Goods or Services, or if instructed by Buyer, remove said Goods or Services and refund the purchase price and any ancillary costs, including removal and transportation costs.
(C) Paragraph (B) shall not apply to the extent any Goods or Services are held to infringe or violate intellectual property rights due to their manufacture on the basis of design furnished by Buyer to Seller.
12. CONFIDENTIAL INFORMATION (back to contents)
(A) For the purposes of these General Terms and Conditions, “Confidential Information” means all information, in written, oral or any other form, including information relating to technical and financial aspects of the desalination project, the Buyer or Owner delivered by Buyer or otherwise disclosed to Seller.
(B) Seller shall not, directly or indirectly, transfer, disclose or disseminate to other persons any Confidential Information without the prior written approval of Buyer. Seller shall not publish the existence of any Order, or any details relating thereto without the prior written approval of Buyer. Additionally, Seller shall limit its internal distribution of the Confidential Information to its employees on a need to know basis.
(C) Seller further agrees to use the Confidential Information solely for the purpose of performing its obligations hereunder.
(D) Confidential Information shall not include any information (i) which Seller lawfully knew without restriction on disclosure before Buyer disclosed it to Seller, (ii) which is now or becomes publicly known through no wrongful act or failure of Seller to act, (iii) which Seller developed independently without use of the Confidential Information, as evidenced by appropriate documentation, or (iv) which the Seller is obliged to disclose under applicable laws, so long as Seller provides prompt advance notice to Buyer of such requirement.
(E) All Confidential Information is and shall remain the property of Buyer. Upon Buyer’s written request, Seller shall return (at its expense) to Buyer all Confidential Information and all copies thereof.
13. COMPLIANCE WITH LAWS (back to contents)
(A) Seller shall fully comply with all applicable federal, state, provincial and local laws and regulations in the performance of any applicable Order, including, but not limited to, all applicable employment, tax, export control, environmental, and health and safety laws and regulations.
(B) Seller shall obtain all permits, certificates and licenses required for the performance of its obligations under any Order.
(C) To the extent that the Goods or Services (or any part thereof) include hazardous materials, Seller shall furnish Buyer all appropriate instructions for the handling, transportation and disposal of the hazardous materials.
(D) Without derogating from the provisions of paragraph (A) above, while on the premises of Buyer, Seller and its employees, agents and Subcontractors shall comply with all applicable environmental, safety and health laws, regulations and ordinances and with the environmental, safety, health and plant regulations of Buyer, and shall ensure that all of its employees, agents and Subcontractors have a safe place of work on said premises. Seller shall keep said premises and the vicinity thereof clean of debris and rubbish caused by its work and, upon completion of its work, shall leave the premises clean and ready for use. Upon request of Buyer, and at no cost or expense to Buyer, Seller shall promptly remove from said premises any of its employees, agents or Subcontractors’ employees and agents who violate any of the aforesaid environmental, safety, health laws, regulations, ordinances or rules or who may cause or threaten to cause a breach of the peace, or who is otherwise objectionable to Buyer.
14. INDEMNITY (back to contents)
Seller shall indemnify, hold harmless, and at Buyer’s request, defend Buyer, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with the Goods or Services provided under any applicable Order, including, without limitation, any claim based on: (i) the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs, and (ii) the negligence, omissions or willful misconduct of Seller or any Seller’s employees, agents and Subcontractors. Seller shall not settle any such suit or claim without Buyer’s prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Buyer, its officers, directors, customers, agents and employees, in enforcing this indemnity, including attorneys’ fees.
15. INSURANCE (back to contents)
(A) Seller shall obtain and maintain, at its expense, with financially and professionally reputable insurers that are reasonably acceptable to Buyer, such adequate insurance as required under any applicable law and as is reasonable in the common practice of Seller, including, without limitation, the following: (i) “Marine Insurance” for all shipments and/or equipment transfers which shall be made from overseas to Israel. The terms of the Marine Insurance policy shall be “All Risk” Insurance (Institute Cargo Clause “A”) and the insurance policy shall include, inter alia, cover against war risks, terrorism, riots, civil commotion and strikes as defined in the applicable Institute Cargo Clauses. The extent of the insurance policy specified under this subsection shall be from the place of origin (ex factory) of the shipment to the final destination in Israel (Door to Port landed); and (ii) Combined Product’s and Professional Liability Insurance Policy to cover Seller’s liability by any applicable law toward Buyer and/or third parties resulting from the Goods and/or Services and/or from the professional activities of Seller and the activities of persons on its behalf, including, inter alia, bodily injury and/or damage to property and/or pure financial losses. Limits of liability in this insurance shall be not less than US$1,000,000 (one million) for each and every claim and in all during any one insurance period of 12 months. The insurance policy shall provide for worldwide territorial limits and jurisdiction. This Insurance policy shall be in force and/or be renewed, for a period of 3 years from date of shipments of the Goods.
(B) Each one of the insurance policies issued in accordance with paragraph (A) above shall contain: (i) Buyer and anyone acting on its behalf, including its directors, officers, employees, agents and contractors named as additional insured; (ii) a “cross liability” clause whereby the insurance shall be deemed to have been made separately with respect to each of the insured parties; (iii) a waiver of any right of subrogation, set-off, counterclaim or any other deduction against Buyer and anyone acting on its behalf, including its directors, officers, employees, agents and contractors; and (iv) a statement that the insurance policies provide primary insurance and that any insurance maintained by Buyer and anyone acting on its behalf, including its directors, officers, employees, agents and contractors shall be in excess of Seller’s insurance.
(C) Promptly following receipt of an Order, Seller shall furnish to Buyer a written confirmation of the insurance companies that issued insurance policies as required under this Clause, whereby such insurance policies comply with the provisions of this Clause. Buyer may also at any time call for and Seller shall promptly furnish true and exact copies of all policies of insurance affording the coverage required herein and any endorsements or changes thereto.
(D) Buyer shall retain the right to carry out the Marine Insurance as set out in paragraph A(i) above, and to reduce the price of the Order accordingly.
(E) If Seller shall provide Seller both Goods and Services (e.g. installation and commissioning) and/or be involved additional activities, Seller shall maintain additional insurance policies as shall be reasonably required by Buyer.
(F) The provisions of this Clause 15 shall not be construed to limit Seller’s liability under law or under any Order, or to impose any obligation or liability upon Buyer.
16. LIABILITY (back to contents)
(A) Seller shall be liable for any damages, losses, costs, expenses (including, without limitation, bodily injuries, damage to property, pure financial losses and legal fees incurred by: (i) Seller and/or anyone acting on its behalf including, without limitation, its employees, agents and Subcontractors; (ii) Buyer and/or anyone acting on its behalf including, without limitation, its employees, agents and contractors; and/or (iii) any third party, arising (a) by reason or as a consequence of any act or omission of Seller and/or anyone acting on its behalf including, without limitation, its employees, agents and Subcontractors, or (b) by reason of any breach by Seller of its obligations hereunder.
(B) For the avoidance of doubt, Buyer shall be entitled to collect moneys due to it from Seller from any guarantee provided by Seller to Buyer hereunder.
17. SUSPENSION (back to contents)
(A) Buyer shall have the authority to suspend further performance of all or any portion or any Order by Seller, by issuing Seller a written notice. Such suspensions shall not exceed more than one hundred and eighty (180) consecutive calendar days or two hundred and seventy (270) calendar days in aggregate. Upon receiving a notice of suspension, Seller shall immediately suspend further performance of the applicable Order to the extent specified.
(B) During the period of any suspension, Seller shall properly care for and protect all work in progress and materials, supplies and equipment it has on hand for performance of the Order. Seller shall exert its best efforts to utilize its labor, materials, supplies and equipment in such a manner as to mitigate any costs associated with the suspension.
(C) Buyer may at any time withdraw the suspension as to all or part of the suspended performance by written notice to Seller specifying the effective date and scope of withdrawal, and Seller shall, on the specified date of withdrawal, resume diligent performance of the work for which the suspension is withdrawn.
(D) If Seller believes that any suspension requires adjustment of the price specified in the Order or the time required to perform the Order, Seller shall act in accordance with the procedure specified in paragraph 4(B) above. In any event: (i) Seller shall not be entitled to price adjustment if the period of suspension is less than thirty (30) days in the aggregate; (ii) any price adjustment shall not exceed Seller’s direct reasonable substantiated unavoidable costs of demobilizing and remobilizing personnel and protecting or storing the works during suspension and shall not include any overhead costs, loss of profits, or other incidental, indirect, special or consequential damages; (iii) any adjustment in the time required to perform the Order shall not exceed the suspension period; and (iv) Seller shall not be entitled to any price or time adjustment if the suspension is due to a failure of Seller to comply with its obligations under an Order.
18. FORCE MAJEURE (back to contents)
(A) For the purposes of these General Terms and Conditions, “Force Majeure Event” means an event which is beyond the reasonable control of either party which constitutes exceptional and unforeseeable circumstances, including war and terrorist activities, which despite the exercise of diligent efforts, such party was unable to avoid, prevent, limit or minimize and which materially delays the scheduled performance of such party’s obligations. For the avoidance of doubt, the following events shall not be considered as Force Majeure Events: (i) shortage of materials or employees; (ii) strikes, labor disputes, lock-outs or similar occurrences; (iii) inclement weather and other material foreseeable disturbances; (iv) suspension, termination, interruption, denial or failure to obtain or renew any permit, license, consent or approval; or (v) lack of financial resources.
(B) A party affected by a Force Majeure Event shall notify the other party in writing of such occurrence within seven (7) calendar days from the date that the party learned of the occurrence of the event. If a party fails to deliver such notice within the time required, such party shall be deemed to have waived its rights to claim that the event is a Force Majeure Event.
(C) Except as specified in paragraph (D) below, in case that a Force Majeure Event occurs, any affected obligation shall be postponed for such period as is reasonably necessary to offset the effects of the Force Majeure Event.
(D) In case that a Force Majeure Event occurs, any affected delivery date shall be postponed for such period as is reasonably necessary to offset the effects of the Force Majeure Event, unless alternate sources of supply of materials, goods or services are available. In no event shall the delivery date be extended by a time period longer than the time period in which the Force Majeure Event was in effect.
(E) No damages, penalties, interest or any other compensation shall be payable to Seller due to a Force Majeure Event, nor will the price of an Order be adjusted.
19. TERMINATION FOR CONVENIENCE (back to contents)
(A) Buyer may terminate any Order in whole or in part at any time without cause by written notice to Seller. On the date of receipt of such written notice, Seller shall immediately cease work, including, but not limited to, the manufacture and procurement of materials for the fulfillment of the terminated portion of the Order.
(B) If the Order is for Goods, Seller shall mitigate its claim to the maximum extent, and Seller shall be entitled to the actual substantiated cost of supplies and materials produced or purchased by Seller to manufacture the Goods or (in case of partial termination) the Goods corresponding to the terminated portion of the Order, which Seller is unable to cancel, return or divert to other uses, within ninety (90) calendar days from receipt of the termination notice, and the reasonable substantiated cost of labor directly incurred by Seller up to the termination notice receipt date with respect to the Order or (in case of partial termination) to the terminated portion.
(C) If the Order is for Services, Seller shall mitigate its claim to the maximum extent, and Seller shall be entitled to the actual substantiated costs directly incurred as a result of such termination.
(D) In no event shall the amount of reimbursement exceed the price corresponding to the Order or (in case of partial termination) to the terminated portion of the Order. Seller shall not be entitled to reimbursement for overhead costs, loss of profits, incidental, indirect, special or consequential, damages due to cancellation of an Order or any part thereof.
(E) In the event of a partial termination no adjustment will be made on the price of the remaining portion of an Order.
(F) If an Order, or any part thereof, is terminated pursuant to the provisions of this Clause 19, then (i) Buyer may require Seller to transfer the title and deliver as directed by Buyer, any completed Goods and supplies and materials produced or purchased by Seller to manufacture the Goods, corresponding to the Order or (if partially terminated) to the terminated portion thereof, together with the benefit of all Subcontractors’ warranties. Such transfer of title and delivery shall be at no additional cost to Buyer, other than actual substantiated transportation costs directly incurred by Seller for such delivery; (ii) At Buyer’s request, Seller shall assign to Buyer, any or all of its subcontracts, excluding any liabilities or indebtedness of Seller accrued under such subcontract prior to the date of assignment. Seller undertakes to include provisions to this effect in its subcontracts; (iii) At Buyer’s request, Seller shall transfer to Buyer all Technical Documents and other drawings, specifications and drawings in its possession in connection with the Goods and/or Services; and (iv) Buyer shall be entitled to order such Goods and/or Services from any third party, including, without limitation, from any of Seller’s Subcontractors.
20. TERMINATION FOR DEFAULT (back to contents)
(A) If the Seller is in default or anticipated default in carrying out any of its obligations under any Order, Buyer may give Seller notice of such default. Seller shall have seven (7) calendar days (or more if authorized in writing by Buyer) from the date of receipt of such notice in which to cure the default or to satisfy Buyer that such default shall be cured within a period of time acceptable to Buyer. Upon failure to cure the default, Buyer may give Seller written notice of termination for default, with respect to the Order, or any part thereof.
(B) Where Seller (i) becomes bankrupt or insolvent, makes an assignment for the benefit of creditors, or takes the benefit of any statute relating to bankrupt or insolvent debtors, or where a receiver is appointed under a debt instrument or a receiving order is made against Seller, or an order is made or a resolution passed for the winding up of Seller; (ii) is in material default in carrying out any of its obligations under any Order; or (iii) is unlikely to cure a default within the time period specified in paragraph (A) above, Buyer may, upon giving written notice to Seller, immediately terminate for default the whole or any part of any Order.
(C) In any event that an Order, or any portion thereof, is terminated under paragraph (A) or (B) hereof of under Clause 19 above, then: (i) Buyer may require Seller to transfer the title and deliver as directed by Buyer, any completed Goods and supplies and materials produced or purchased by Seller to manufacture the Goods, corresponding to the Order or (if partially terminated) to the terminated portion thereof, together with the benefit of all Subcontractors’ warranties. Such transfer of title and delivery shall be at no additional cost to Buyer; (ii) At Buyer’s request, Seller shall assign to Buyer, any or all of its subcontracts, excluding any liabilities or indebtedness of Seller accrued under such subcontract prior to the date of assignment. Seller undertakes to include provisions to this effect in its subcontracts; (iii) At Buyer’s request, Seller shall transfer to Buyer all Technical Documents and other drawings, specifications and drawings in its possession in connection with the Goods and/or Services; and (iv) Buyer shall be entitled to order such Goods and/or Services from any third party, including, without limitation, from any of Seller’s Subcontractors.
(D) Upon receipt of a notice provided for in paragraphs (A) or (B), Seller shall have no claim for further payment other than as provided in this Clause, but shall be liable to the Buyer for all remedies available by law or equity, including all direct losses and damages suffered by Buyer by reason of the default, including, without limitation, any increases in the costs incurred by Buyer in procuring the Goods and Services from another source.
(E) Nothing in this Clause affects any obligation of Seller under any Order, or portion thereof, which has not been terminated. Nothing in this Clause will derogate from any termination right or remedy Buyer might have under law or equity.
21. LAW AND VENUE (back to contents)
(A) The validity, construction and performance of any Order shall be governed by and interpreted in accordance with the laws of the State of Israel, excluding (i) its conflict of laws rules and (ii) the provisions of the Sale Law (International Sale of Goods) 1999 (incorporating the provisions of the United Nations Convention Contracts for the International Sale of Goods, 1980).
(B) The competent courts of the State of Israel, Haifa District, shall have exclusive jurisdiction over any dispute.
(C) Notwithstanding the foregoing, in the event of a dispute between Buyer and a third party, which arises out or is connected in any way to any Order, or to any Goods or Services provided hereunder, Seller shall, to the extent deemed necessary by Buyer, join the proceedings related to such dispute, and be bound by the judgment rendered.
22. MISCELLANEOUS (back to contents)
(A) Seller may not sell, assign, transfer, subcontract, pledge or otherwise convey any of its rights or delegate any of its rights and/or duties under any Order without the prior written consent of Buyer. Engagement by Seller of Subcontractor shall not relieve Seller from its obligations hereunder, and Seller shall be solely liable towards the Buyer for its Subcontractors’ acts and omissions. Buyer shall be entitled to sell, assign, transfer, subcontract, pledge or otherwise convey (and further sell, assign, transfer, subcontract, pledge or otherwise convey), all or any of its rights and/or obligations under any Order (including the benefit of any guarantees and warranties provided pursuant thereto), without the prior written consent of Seller. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
(B) Without derogating from any other remedies available to Buyer hereunder or under any applicable law, Buyer shall be entitled to set-off or withhold from any consideration payable to Seller, any amounts owed by Seller to Buyer.
(C) Seller hereby waives any right to withhold from Buyer by assertion of a lien, charge, self-help, set-off or any other remedy, any property, equipment (including, without limitation, any Goods) or amount of money due to Buyer from Seller hereunder or under any applicable law.
(D) Seller is an independent contractor. Neither any Order, nor the performance thereof, shall be construed as creating between Buyer and Seller or Owner (or any of Seller’s or Owner’s employees, agents and Subcontractors) a relationship of employer and employee, principal and agent, joint ventures, partners or any other similar relationship.
(E) Except for Orders which may be sent by mail, facsimile transmission, or electronically transmitted, all notices, and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized Buyer representative, and shall be considered given (i) when delivered personally, (ii) when sent by confirmed telex or facsimile, (iii) when sent by commercial overnight courier with written verification receipt, or (iv) five (5) calendar days after having been sent, postage prepaid, by first class or certified mail – addressed to the addresses or facsimile numbers specified in the applicable Order.
(F) No delay or omission to exercise any right or remedy accruing to a party hereto upon any breach or default by the other shall impair any such right or remedy nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein or in any similar breach or default thereafter occurring.
(G) Any obligations and duties that by their nature extend beyond the expiration or termination of any applicable Order shall survive such expiration or termination. Obligations under Clauses 8, 10 and 11 hereof (Warranties, Intellectual Property, Confidential Information) shall be deemed to extend beyond such expiration or termination.
(H) If a provision of any Order is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability of any other provision thereof.
(I) Unless expressly provided otherwise, nothing contained in any Order shall be construed as derogating from any right or remedy the Buyer might have under any applicable law.
(J) The making of any payment, approval acceptance, test or inspection by Buyer shall neither relieve Seller from performing its obligations hereunder nor be deemed to constitute acceptance by Buyer of the Goods or Services.
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