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|Contract||means and consists of Purchase Order, Requisition including Specifications, other requirements thereof and Shipping and Packing Instructions, General Terms & Conditions of Purchase. In case of any contradiction among such documents, the foregoing order of documents shall be considered as the order of precedence. In case of any contradiction among the documents of the same order, the document latest in effective date shall prevail.|
|Contract Price||means the total price of Goods stated on the face of the Purchase Order.|
|Supplier(or Vendor)||means the person, firm or company with whom the Purchase Order is to be placed.|
|Purchaser||means S-Oil Corporation.|
|Goods||means the equipment, materials, machinery including but not limited to documents, specifications and drawings and associated work and services to be supplied by the Supplier as specified in the Contract.|
|Purchase Order||means the document and its attachments in which the specific order for the Goods is described.|
|Requisition||means the documents which establish the technical purchase conditions.|
|Specifications||means technical specification of the Goods, including but not limited to, data sheet, drawings, and other technical requirements|
|Shipping and Packing Instructions||means the document and its attachments in which the Supplier's obligations for shipping and packing of the Goods are described.|
The Supplier shall make no changes in the manufacture of the Goods as described in the Requisition without the Purchaser's prior written approval sent at least thirty (30) days before making such changes, additions or deletions.
The Purchaser reserves the right at any time to make the changes in the (a) Requisition, (b) quantity; (c) methods of shipment or packaging, (d) time and place of delivery; or (e) any other matters affecting this Purchase Order upon a written notice to the Supplier. If any such changes initiated by the Purchaser increase the price of Goods or extend the time of delivery, the Supplier shall give the Purchaser a written notice thereof within two weeks from the date of the Purchaser's notice, and the Purchaser shall give the instruction within a period of two weeks from the date of the Purchaser's receipt of the Supplier's notice whether to accept the price or to withdraw such changes.
In case of withdrawal of changes during the above period, the Contract Price shall remain unchanged.
If the Supplier gives the Purchaser no such notice within the above period, the Requisition shall be deemed amended while the Contract Price and time of delivery shall be deemed unchanged. Nothing in this clause shall excuse Supplier from its contractual obligation to proceed with the Purchase Order as changed.
The Supplier may not substitute materials specified in the Specifications unless otherwise approved in writing by the Purchaser in advance.
If the words such as "or equal" are used in the Contract, any proposed equals must be approved in writing by the Purchaser in advance.
As required in the Requisition, the Supplier shall submit certain documents and drawings to the Purchaser prior to the commencement of the manufacture of the Goods.
Those documents and drawings to be approved by the Purchaser shall be submitted with a mark "For Approval" and such approval shall be indicated by the Purchaser by stamping the word "Approved" thereon and returning such documents and drawings to the Supplier, if no alteration in design is required.
If any contradiction between the Requisition and the Supplier's documents and/or drawings is observed, the Purchaser shall mark and comment on the contradiction in such documents and/or drawings and return them to the Supplier after stamping the word "Approved as noted".
In such case, the Supplier shall revise the contradicting parts and shall resubmit the revised documents and drawings for the Purchaser's approval again. The Purchaser shall not unreasonably withhold approval of such documents and drawings. Notwithstanding the Purchaser's approval of any of the documents and drawings, the Supplier shall be responsible for the design, fabrication and performance of the Goods so as to meet the requirements in the Requisition, and no such approval shall relieve the Supplier of any of its obligations and responsibilities under the Contract. The Supplier shall submit the final documents required in the Contract, including but not limited to, all the approved documents and drawings, inspection records and certificates, and instruction manuals within one (1) month after the delivery of the Goods unless otherwise specified in the Contract.
The Supplier warrants and guarantees to the Purchaser that the Goods specified in the Contract are new and meet all the requirements in the Requisition, and free from defects in design, workmanship and material and are of sufficient size and capacity and/or proper materials so as to fulfill all aspects of the requirements and performance of the Goods specified in the Contract. Furthermore, the Goods will be fit for the purposes held out by the Purchaser or made known to the Supplier when the Contract is executed. The services provided in connection with the Goods, if any, will be performed by qualified and trained personnel with due care and diligence and shall be at least of generally accepted industry standards.
If any defect originating with the design, materials, workmanship, operating characteristics of the Goods, or any breach of the above warranty and guarantee arises at any time within eighteen (18) months from the date that the risks of the Goods are transferred to the Purchaser according to the delivery terms as specified in the Contract, and the Supplier is notified thereof, the Purchaser may, at its option and at the cost of the Supplier: a) require the Supplier to make repairs, replacements or alteration, at the election of the Purchaser, of any defective or nonconforming Goods as may be necessary to permit the Goods to function in accordance with the Requisition; b) return such defective or nonconforming Goods to the Supplier and recover from the Supplier the Contract price thereof, or c) correct the defective or nonconforming Goods or services itself or by any third party as may be necessary to permit the Goods to function in accordance with the Requisition and charge the Supplier with the cost of such correction.
The Supplier shall be responsible for the cost arising out of the breach of the above warranties and guarantees, inter alia, export, packing and transportation costs from/to the Plant, dismantling and reassembly of the Goods, and dispatching the necessary qualified specialist(s) for rectification. After correcting the foregoing defects, the Supplier shall also warrant and guarantee against any defects from the corrected parts or areas for another eighteen (18) months from the date of the Supplier??s inspection. The Supplier also warrants and guarantees that the Supplier shall comply with all applicable laws and regulations concerning the manufacture, packaging, sale and delivery of the Goods. The foregoing warranties and guarantees are in addition to all other warranties and guarantees, expressed or implied, and shall survive any delivery, inspection, approval, acceptance, and payment by the Purchaser.
The Purchaser's approval of the Supplier 's material or design shall not relieve the Supplier of the warranties or guarantees set forth herein.
Time is of the essence of this Contract and the Supplier guarantees to deliver the Goods to such place and at such time as specified in the Purchase Order, according to the Purchaser's instructions. The Supplier shall at all times expedite delivery of the Goods and shall issue, where applicable, drawings, data and other descriptions in accordance with the Requisition. The Supplier shall also issue, where applicable, a manufacturing schedule within four (4) weeks from the date of the Contract followed by a progress report at the end of each month. Such manufacturing schedule and progress report shall indicate the information listed below:
Unpriced copies of the Supplier's purchase orders to the sub-suppliers and/or the subcontractors of equipment or materials for the Contract shall be made available to the Purchaser or its agents when requested.
Expediting made by the Purchaser or its agents in no way relieves the Supplier of its obligations as to the price or the time of shipment specified in the Contract. If delivery is not completed within the time(s) specified, the Purchaser reserves the right, without liability, in addition to its other rights and remedies, to cancel the entire Contract or that part of the Contract not delivered.
If timely delivery is endangered due to the cause attributable to the Supplier, the Purchaser shall be entitled to direct the Supplier to make shipment by the most expeditious means and the total cost of such expedited shipment and handling shall be borne by the Supplier. No partial or complete delivery shall be made hereunder prior to the date or dates shown unless the Purchaser has given a prior written consent.
Without prejudice to any other rights the Purchaser may have, if the Supplier fails to achieve the aforesaid delivery guarantee due to reasons attributable to the Supplier, the Supplier shall pay liquidated damages to the Purchaser, within thirty (30) days after receipt of the Purchaser's invoice, at the rate of zero point five percent (0.5%) as per a week of the Contract Price of the value of the item(s) of the Goods delayed, subject to a ceiling of ten percent(10%) of the Contract Price. The Purchaser has the right to deduct such liquidated damages from any payment of the Contract Price due to the Supplier.
he Supplier shall be responsible for establishing and implementing quality system, and performing inspection and test in a manner satisfactory to the Purchaser and meeting the standard engineering practices in the relevant industry to ensure that the Goods, including its sub-supplier's materials/equipment, conform in each and every respect to the requirements under the Contract. Any code inspection required such as statutory inspection and governmental regulation shall be carried out by the Supplier at his responsibility and expense.
The Supplier shall, at its own expense, carry out at the place of manufacture all such test and/or inspection of the Goods as are specified in the Contract.
The Purchaser shall be entitled to attend the aforesaid test and/or inspection by its own duly authorized and designated inspector.
The Supplier shall notify the Purchaser of the date and place, unless otherwise specified, at least 10 days prior to the date of aforesaid inspection and/or tests to be made. A representative and/or an agent of the Purchaser's Client and/or the Purchaser shall be granted access to any and all parts of the Supplier's shop(s) or the sub-supplier's shop(s) engaged in the manufacture of the Goods or processing of the Contract. The Supplier, upon request by a representative and/or an agent of the Purchaser's Client and/or the Purchaser at witness inspection, shall make available all the documents and drawings required for the inspection to such representative or agent in accordance with the Contract.
Notwithstanding any prior inspections or payments hereunder, all Goods shall be subject to final inspection and acceptance at the Purchaser's inspection site within a reasonable time after receipt at destination. (b) If any Goods delivered do not meet the requirements under this Contract, the Purchaser shall have the right to reject such Goods. The Purchaser may elect to reject the entire Goods tendered even if only a portion thereof is nonconforming.
Records and/or certificates of each inspection and/or test shall be submitted by the Supplier to the Purchaser before delivery of the Goods, regardless of whether or not the Purchaser attended such inspection and tests. The Purchaser shall have the right to carry out any inspection and/or test of the Goods at any time during manufacture and prior to shipment, whether such inspections and/or tests are statutory or specifically required by the Contract.
Any inspection or failure to inspect shall not relieve the Supplier of any responsibility or liability with respect to the Goods nor be interpreted in any way to imply acceptance thereof by the Purchaser.
Packing and preservation of the Goods shall be made by the Supplier in a manner adequate to withstand transportation and compliant to any legal and regulatory requirement of all the relevant jurisdictions. Due regard shall also be given to any special requirements contained in the Purchaser's Shipping and Packing Instructions. Marking and shipping of the Goods shall be made by the Supplier in accordance with the Shipping and Packing Instructions immediately after shipment. The Supplier shall be responsible for any loss and damage caused to the Goods by improper packing and preservation and shall at its own expense including packing and transportation costs and as promptly as possible make all repairs, replacements or supplements of the Goods as is necessitated by such loss and damage.
Arrangement of the shipment of the Goods shall be made in accordance with the conditions and procedure set forth below and in the Shipping and Packing Instructions.
Without prejudice to any other rights the Purchaser may have, at its option, the Purchaser has the right to deduct the amount the Supplier owes to the Purchaser, such as, but not limited to, liquidated damages set forth in Clause 6, cost of remedial work at the site as provided in Clause 5, or demurrage, dead freight, storage, or additional transportation costs as provided in Clause 8 and 9, from any payment due to the Supplier under the Contract.
The Supplier shall not assign the Contract in whole or in part or any interest herein without Purchaser's prior written consent. The Supplier shall not assign any money due without the Purchaser's prior written consent. The Purchaser may, without the consent of the Supplier, assign the Contract in whole or in part or any interest herein to any party designated by the Purchaser
The Supplier agrees to deliver the Goods free and clear of all liens, encumbrances and claims of laborers or material men, and if any such liens, encumbrances or claims be attached, the Supplier agrees to indemnify and hold harmless the Purchaser with regard thereto. At Purchaser's option and request, Supplier's application for payment shall be accompanied by waivers and/or releases of labor, material, and/or equipment lien or claims, properly executed by all labor, subcontractors, suppliers and others who may have lien or claim rights against the project or any bond.
The Goods, their export, importation, use or resale and their performance or acceptance thereof will not infringe any protected rights of any 3rd party. To the extent that the design of the Goods has not been furnished by the Purchaser, the Supplier shall fully indemnify and hold harmless the Purchaser from and against any action, claim or demand, liability, loss, damage, costs and expense arising from, or incurred by reason of, any present and future infringement or alleged infringement of any patent or any other protected rights in respect of any Goods supplied by the Supplier, including the reasonable attorney fees and costs of litigation. In the case where goods or a part thereof are held to constitute infringement and the use of the Goods or a part thereof is enjoined, the Supplier shall, at the expense of the Supplier and at the option of the Purchaser, either (a) procure for the Purchaser the rights to continue to using the Goods, (b) replace the Goods so that the Goods become non-infringing, or (c) retake the Goods and refund the purchase price and transportation and installation cost of the Goods to the Purchaser. Such obligations shall survive acceptance of the Goods and payment therefore by the Purchaser.
Any Requisition or other information provided to the Supplier by the Purchaser shall be treated as confidential, shall be used only for the purpose of the performance of the Contract and shall not be reproduced in whole or in part for any other purposes. All such information shall be returnable immediately upon demand of the Purchaser. The Supplier shall ensure that such information is not divulged to any third party except where necessary for the performance of the Supplier's obligations under the Contract and, in such cases, subject to third parties in question undertaking an equivalent obligation of confidentiality. The obligation does not apply to information which at the time of disclosure is in the public domain or is in the Supplier's lawful possession without restrictions on disclosure.
Any taxes, duties or charges levied on the Supplier and/or its sub-supplier(s), or levied outside Korea, shall be borne by the Supplier.
The Supplier shall procure, at its expense, all necessary permits, certificates, and licenses required by virtue of all applicable laws, regulations, ordinances and other rules in effect at the place where any of the work is to be performed, and the Supplier further agrees to hold the Purchaser harmless from loss, liability, fine or penalty which may be imposed by reason of any asserted or established violation of such laws, regulations, ordinances, or other rules.
The interpretation of trade terms in the Contract shall be in accordance with INCOTERMS 2000 and any supplements thereto in existence at the date of issuance of Purchase Order, unless specifically defined in the Contract.
Neither party shall be liable for delay due to any event of force majeure which is beyond its control, including strike (excluding those involving only the employees of the Supplier or its subcontractor), acts of God, act of governmental authorities, embargoes, acts of terrorist, war or riots, flood, earthquake, which could not have been avoided with reasonable due diligence of such Party. In the event of any delay due to force majeure, the Supplier is entitled to an extension of the time of delivery for the Goods by the period of time the Supplier is actually delayed thereby in the performance of the Supplier's work as a whole, provided that notice is given to the Purchaser in writing within forty-eight (48) hours after the commencement of each such event, stating the Supplier's best estimate of the duration thereof, and a further notice to the Purchaser in writing within three (3) working days upon the termination thereof, along with an evidence confirmed by competent authority, and provided further that the extension of the time of delivery shall apply only if such event necessarily delays completion of the Goods. If, as a result of any such event, the Supplier requires an extension of time, it shall prepare a revised manufacturing schedule for the Purchaser's approval which shall not be unreasonably withheld, and such schedule shall, upon such approval, replace the manufacturing schedule established for the Contract. If circumstances of force majeure continue over a period of one (1) month, the Purchaser shall have the right, if no other agreement is reached, to cancel the Contract totally or partially by sending notice thereof to the Supplier by registered airmail, postage prepaid, fax, or email without further formality.
The Purchaser may, without prejudice to any other rights the Purchaser may have, cancel the Contract or any part thereof without any charge in the event
Any payment already made by the Purchaser at the date of notice of cancellation shall be reimbursed to the Purchaser immediately upon such cancellation after the Purchaser's request. Also, upon such termination, all the payment obligation of the Contractor hereunder shall be accelerated and all such sums shall be due and payable to the Purchaser immediately. Purchaser's right of cancellation hereunder is not an exclusive remedy, and the Purchaser shall be entitled, alternatively or cumulatively, to damages for breach of the Contract, to an order requiring performance of the obligations of the Supplier in respect of any part of the Contract not canceled by the Purchaser, or to any other remedy available under the laws of any applicable jurisdiction, whether in contract, tort, equity, or otherwise.
The Purchaser may at its option at any time, terminate the Contract in whole or in part by giving ten(10) days prior notice to the Supplier in writing. Upon receipt of such a notice, the Supplier shall promptly discontinue any further performance of the work or the relevant part thereof, except as may be necessary to protect the work completed to date, or as may be requested by the Purchaser.
Upon such termination, the Supplier shall, upon the Purchaser's request, turn over to the Purchaser any or all of the work, all drawings, specifications, data sheets, and other matters that the Supplier may have prepared for the Goods and all materials, supplies and equipment paid for by the Purchaser either directly or indirectly, and the Purchaser shall have the right to make use of same for such purposes as the Purchaser may desire.
In the event of termination, the Purchaser's only liability will be to pay the Supplier for the work actually performed and accepted, based upon an equitable percentage, to be agreed upon by the parties, of the Contract Price, less the amount already paid, if any. The Purchaser shall not compensate any loss of anticipated profits to the Supplier in respect of work not yet performed. From the total payment agreed as aforesaid, there shall be deducted all claims of the Purchaser
against the Supplier including claims on account of defects in engineering, procurement, construction, materials and/or workmanship.
Any and all notices and communications to the Purchaser or the Supplier in connection with the Contract shall be sent to the address specified in the Purchase Order and made in English, in writing by a registered airmail, postage prepaid, fax, or e-mail.
The Contract constitutes the entire agreement between the Purchaser and the Supplier and may not be modified except by a writing signed by the authorized representatives of the parties hereto.
The Contract shall be subject to, and shall in all respect be governed by and construed in accordance with the laws of Korea.
All disputes, controversies, or differences which may arise out of or in relation to or in connection with the Contract, or for the breach thereof, shall be amicably settled between the Purchaser and the Supplier. In case no agreement is reached within sixty (60) days or a longer period as the parties may agree, such disputes shall be finally referred to and settled by arbitration. The arbitration shall take place in Seoul, Korea, according to the rules of arbitration of the Korean Commercial Arbitration Board. The award to be rendered shall be final and binding upon both parties.
Title in the Goods or any part thereof shall pass to the Purchaser upon the earliest of: (a) at the point of delivery of the Goods or (b) payment by the Purchaser of any part of the Contract Price. Nevertheless, in case of the customized Goods, title in the Goods shall pass upon the appropriation of or designation of any part of the Goods as being the subject matter of the Contract. As required in the Shipping and Packing Instructions or otherwise instructed by the Purchaser, the Supplier shall ensure that the Goods or any parts thereof are marked so as to identify the Purchaser as their owner and the location designated in the Contract as their destination. Until the delivery and acceptance of the Goods by the Purchaser, the Supplier shall bear any and all risk of loss or damage relating to the Goods. The Supplier shall be responsible for the safe storage, warehousing, security, receipt, delivery, unloading, protection and insurance of the Goods.
The Supplier shall indemnify and hold harmless the Purchaser against all liability to any other party for personal injury/death or property or other damage arising out of acts or omissions of the Supplier or its employees, suppliers, or agents or arising out of any defect in the Goods supplied by the Supplier pursuant to the Contract.
The Purchaser's delay or failure to enforce any of its rights hereunder shall not be considered a waiver of such rights by the Purchaser whether as to that occasion or any subsequent occasion unless the Purchaser expressly stipulates such in writing.
The Purchaser may at any time suspend performance of all or any part of the work by the Supplier under the Contract by giving written notice to the Supplier. The Purchaser shall compensate the Supplier for those costs incurred during the suspension period that are attributable solely to the suspension, and are for the purpose of safeguarding the work and the materials and the Goods in transit or at the work site(s), or are for personnel, sub-suppliers or rented equipment which, with the Purchaser's prior written consent, are maintained for the work, or are reasonable and unavoidable costs of the Supplier confirmed by the Purchaser in writing.