1.1 By this Term and in the best form of law, Seller undertakes to sell and deliver to Buyer the goods, materials and products ("Products") described and characterized in the purchase order (this Term together with the purchase order are hereinafter referred to as "Purchase Order"), in accordance with the quantities, technical specifications, deadlines and other terms and conditions also specified in such purchase order. ), in accordance with the quantities, technical specifications, terms and other terms and conditions also specified in such purchase order.
1.2 Buyer shall only be bound to purchase the Products if Seller confirms, in writing, its full acceptance of the quantities, terms, wording and conditions of this Purchase Order. For the purposes of the provisions of this clause, confirmation of acceptance of the Purchase Order by Seller shall occur on the date of acceptance set forth in the Purchase Order, upon receipt by Buyer of a copy of the Purchase Order duly signed by representatives of Seller.
1.3 Seller acknowledges and agrees that, subject to the provisions of clause 1.4 below, Buyer may, at any time, at its sole discretion and upon written notice to Seller, increase, decrease and/or modify the quantities, periods, procedures, specifications, terms and/or conditions set forth in the Purchase Order.
1.4 In the event Buyer changes any of the terms, conditions and/or other specifications set forth in the Purchase Order, Seller shall be entitled to/be subject to proportional adjustments with respect to the compensation that would be due to it and/or the terms for performance of its obligations under the Purchase Order, such adjustments to be determined by Buyer, in its sole discretion, and subsequently communicated in writing to Seller. No adjustment, either with respect to Seller's compensation or with respect to the schedule for performance of its obligations under the Purchase Order, will be made in the event of changes of a merely procedural or aesthetic nature, replacement of Products by equivalent ones and/or any change that does not significantly affect Seller's costs and/or time to be spent by Seller in the performance of its obligations under the Purchase Order.
1.5 The Purchase Order is entered into on a non-exclusive basis, it being understood, however, that, during its term, Seller shall not assume any obligations that may impair or hinder the adequate and timely performance of its obligations under the Purchase Order.
II DELIVERY, ACCEPTANCE, TITLE AND RISKS
2.1 The Products shall be delivered at Buyer's facilities or at any other place indicated by Buyer in the Purchase Order, within the terms and conditions equally provided therein.
2.2 In the event of delay in delivery of the Products, without any prior notice to Buyer, Seller shall be subject to payment of a penalty in an amount equivalent to ten percent (10%) of the price of the Products that have not been timely delivered to Buyer, until the date of actual delivery of such Products, without prejudice to Buyer's right to terminate the Purchase Order, pursuant to the provisions of clause 5.2 below, as well as to claim damages pursuant to law.
2.3 Upon receipt, Purchaser shall inspect the Goods. If the Goods conform to the specifications set forth in the Purchase Order (or any modification thereof) and to the other warranties offered by Seller, Buyer will accept the Goods by signing the appropriate instrument of acceptance. If the Goods do not meet the relevant specifications, they may be rejected by Buyer, which will return them to Seller, it being understood that, in this case, all expenses incurred for inspection and return of the Goods will be Seller's responsibility. Seller acknowledges and accepts that acceptance of the Products in accordance with this clause is without prejudice to the warranties set forth in Section IV below.
2.4 Unless otherwise specified in the Purchase Order or agreed in writing between the parties, upon acceptance of the Products by Buyer in accordance with the provisions of clause 2.3 above, Buyer shall become the owner of the Products and, only then, shall bear the risks of loss and damage eventually caused to or by the Products.
3.1 In consideration for the proper and timely supply of the Products, Buyer shall pay Seller the prices specified in the Purchase Order, in accordance with the terms and conditions also specified therein. Buyer shall not be liable to pay any amount that is not specified in the Purchase Order and shall not be obligated to pay Seller for any Goods that have not been accepted by Buyer in accordance with the provisions of clause 2.3 above.
3.2 Unless otherwise specified in the Purchase Order or otherwise agreed in writing between the parties, Buyer's purchases are made on a CIF (Cost, Insurance and Freight) basis, therefore, all costs of packaging, transportation and insurance, as well as all expenses incurred by Seller in the performance of its obligations under the Purchase Order shall be the exclusive responsibility of Seller, it being understood that, in the event that Buyer bears any of such expenses, it shall be reimbursed immediately, upon presentation of the pertinent collection document.
3.3 The payments set forth in this Section III constitute the total compensation payable by Buyer to Seller under the Purchase Order, and no payment other than those expressly provided for in the Purchase Order is due to Seller.
3.4 All taxes, fees, contributions and other charges that are levied or may be levied on the payments and/or transactions contemplated in the Purchase Order shall be the sole responsibility of Seller, which hereby authorizes Buyer to deduct and withhold from the amounts to be paid to Seller any and all taxes, fees, contributions and other charges, as required by the competent authorities.
IV GUARANTEES AND LIABILITY
4. 1 Without prejudice to any other provision of the Purchase Order, Seller represents and warrants that the Goods (i) will be supplied in accordance with the quantities, technical specifications and other terms and conditions set forth in the Purchase Order (or any amendment thereto) and with the other warranties offered by Seller, (ii) do not infringe any third party intellectual property right and will be free from any defect, defect, failure, malfunction, malfunction or discrepancy with relevant specifications, (iii) are capable of commercialization by Buyer in the markets in which Buyer operates (if applicable), and (iv) may be used and/or consumed by end users in the manner and/or for the purposes intended by Buyer (if applicable).
4.2 Seller further warrants that the Products will be provided in strict compliance with all applicable federal, state and local laws, rules, regulations, ordinances, codes and permits, including, but not limited to, labor, social security, environmental and sanitary laws, rules and regulations (as applicable).
4.3 Without prejudice to any other right of Buyer, during the period of three (3) days from the date of acceptance of each Product, Seller shall, upon request and at Buyer's option, promptly repair or replace Products that, at Buyer's option, do not meet the warranties set forth in the Purchase Order, at no additional cost to Buyer.
4.4 If Seller fails to immediately repair or replace the Goods that do not meet the warranties set forth in the Purchase Order, Buyer may arrange for the repair or replacement thereof, as the case may be, charging Seller for the costs resulting therefrom, without prejudice to its right to terminate the Purchase Order, in accordance with the provisions of Chapter V, below, and to claim damages in accordance with the law.
4.5 The obligations of Buyer under the Purchase Order are limited to the timely payment of the remuneration set forth in Chapter III above, subject to the terms and conditions of the Purchase Order. In no event shall Buyer, its parents, subsidiaries, joint ventures and/or its distributors and customers be liable for any losses and/or damages suffered by Seller or any third party, except for direct losses and damages resulting from Buyer's proven willful misconduct.
4.6 Seller shall hold harmless and fully indemnify Buyer, its parents, subsidiaries, joint ventures and/or its distributors and customers for any losses and/or damages relating to: (i) supply of the Products; (ii) breach of any provisions of the Purchase Order (including, without limitation, with respect to warranties) by Seller, its officers, employees, representatives, subcontractors or any third party, whether by action or omission; and (iii) any action or claim brought by a third party directly or indirectly related to the Products, the Purchase Order or the transactions subject thereto.
4.7 In the event of a Customer complaint, Seller shall:
- Clearly identify and separate suspect or non-conforming materials to prevent unwanted use or delivery.
- Ensure the containment of suspect materials previously shipped to Buyer or at its end customer.
- Control materials discarded as scrap until they become physically unusable.
- Retain documented information related to a non-conformance.
- Seller shall immediately notify Buyer upon suspicion of a non-conforming product. Notification must be given via e-mail to Buyer's purchasing and business quality contacts including a detailed description of the non-conformance, the affected products and the first containment actions taken.
The first containment actions must be completed within 24 hours of identification of the nonconformance. Further containment actions and disposition of the nonconformance must be agreed upon with Buyer based on end customer requirements.
Seller is responsible for implementing the mandatory containment actions indicated by Buyer or its end customers as a result of the non-conformance. For example: Controlled shipment, source inspection or third party inspection at the end customer.
When Buyer identifies a Seller non-conformance, a RO (Record of Occurrence) shall be issued to Seller to contain the containment plan, identifying the root cause and addressing process improvement.
Buyer reserves the right to pass on in full the cost of non-conformity generated by Seller to the end customer.
The following items are not covered by the warranty provided by Seller:
- Natural wear and tear from use,
- Consumable parts, such as filters,
- Cleaning, cosmetic (aesthetic) repairs or wear resulting from normal use of the product,
- Damage caused by misuse, abuse, fall, negligence, imprudence and/or malpractice,
- Damage caused by storage or use of the product in conditions outside the specifications indicated by the Buyer.
- Damage caused by equipment that produces or induces electromagnetic interference or even by problems with electrical installation in disagreement with ABNT standards,
- Damage caused by accessories or products of third parties added to a product supplied by Seller,
- Damage caused by improper or inadequate installation, use or maintenance performed by Buyer itself, or by third parties added to a product supplied to Seller.
- Damage caused by nature agents, such as lightning, sea fog, flood, fire, landslides, earthquakes, among others.
V TERM AND RESCISSION
5.1 The Purchase Order shall become effective on the date of its acceptance by Seller (pursuant to clause 1.2 above) and, unless terminated in advance in accordance with the provisions of this Chapter V, shall remain in force until full compliance by the parties with the obligations assumed.
5.2 The innocent party may terminate the Purchase Order if the other party breaches any of its obligations or violates any provision of the Purchase Order and fails to cure such breach or violation within thirty (30) days from receipt of written notice from the innocent party to that effect.
5.3 Without prejudice to the provisions of clause 5.2 above, Buyer may also terminate the Purchase Order, in the events of judicial or out-of-court reorganization, bankruptcy or liquidation of Seller, the termination, in such events, occurring as of the date of the request for judicial or out-of-court reorganization, bankruptcy or liquidation.
VI GENERAL PROVISIONS
6.1 The provisions of the Purchase Order reflect the entirety of the understandings and agreements between the parties with respect to the subject matter of the Purchase Order, prevailing over any prior understandings, agreements or proposals. No modification of the terms and conditions of the Purchase Order shall be valid unless made by means of a written instrument, duly signed by the legal representatives of both parties.
6.2 In no event shall the omission or tolerance of any party to require strict compliance with the obligations herein contracted or to exercise any right arising out of the Purchase Order constitute novation or waiver of any right, nor shall it affect the right of the parties to, at any time, require compliance with the obligations and/or exercise their rights under the Purchase Order.
6.3 Any notice, request or other communication from one party to the other with respect to the Purchase Order shall be made in writing to the address of the party to whom it is addressed, as contained in the Purchase Order or any other address that the other party may designate in writing.
6.4 The provisions of the Purchase Order that, by their nature, have a permanent nature, especially those relating to warranty and liability, shall survive the expiration or termination of the Purchase Order.
6.5 In the event any clause, term or provision of the Purchase Order is declared void or unenforceable, such nullity or unenforceability shall not affect any other clauses, terms or provisions of the Purchase Order, which shall remain in full force and effect.
6.6 The Purchase Order shall be governed by the laws of the Federative Republic of Brazil. The parties elect the venue of the City of São Paulo, State of São Paulo to settle any controversies arising out of the Purchase Order, to the exclusion of any other, no matter how privileged it may be.