General Terms and Conditions for Purchase of Products

(GT&C-EN-PSR-003)

ALSTOM Power

Rev 2 / May 2010

General Terms and Conditions for Purchase of Products
TABLE OF CONTENTS
1. Definitions, Interpretations and Applicability......................... 1
2. Acknowledgment of Purchase Order ...................................... 1
3. Work ....................................................................................... 1
4. Changes .................................................................................. 2
5. Environment, Health and Safety (EHS).................................... 2
6. Inspection and Quality Assurance........................................... 2
7. Documentation........................................................................ 2
8. Packing, Transportation and Delivery .................................... 2
9. Transfer of Risk and Title ........................................................ 2
10. Delays ..................................................................................... 2
11. Price and Payments ................................................................ 2
12. Defects Liability....................................................................... 3
13. Intellectual Property Rights..................................................... 3
14. Third Party Claims................................................................... 3
15. Insurance ................................................................................ 3
16. Force Majeure ......................................................................... 4
17. Confidentiality......................................................................... 4
18. Compliance ............................................................................. 4
19. Suspension.............................................................................. 4
20. Termination ............................................................................ 4
21. Seller Claims ........................................................................... 5
22. Liability ................................................................................... 5
23. Miscellaneous ......................................................................... 5
24. Governing Law and Contract Language ................................. 5
25. Dispute Resolution .................................................................. 5
1. DEFINITIONS, INTERPRETATIONS AND APPLICABILITY
1.1 These General Terms and Conditions (GT&C) are intended to apply to
purchase orders issued by the Buyer for the supply of Products as contemplated
herein, whether such purchase orders are issued under a frame agreement or
on a stand-alone basis.
1.2 In the Contract and/or in documents and communications between the
Parties relating to the Contract, except where the context otherwise indicates or
requires:
(a) Definitions: the following defined terms shall have the following meanings:
“Buyer” shall mean the entity ordering Products under a Contract.
“Confidential Information” shall mean any information and material disclosed
by either Party or their authorized designee in the framework of the Contract,
whether in oral, written, visual, physical or electronic form, which is non-public,
proprietary, a trade secret and/or confidential in nature; for the avoidance of
doubt, Confidential Information also includes any copies, notes, summaries,
reports, analyses, compilations, studies and other information or material
derived by the receiving Party or its affiliates, Subcontractors, or their respective
employees, agents or representatives, in whole or in part from information or
material described in the foregoing sentence.
“Contract” shall mean the contract between the Parties consisting of the
Purchase Order and all contract documents belonging to the Purchase Order,
including, as applicable, appendices, particular terms and conditions for
project-related purchase, Design Codes and other documents set out in Clause
1.3, and including any amendments to any such documents.
“Contract Price” shall mean the total sum set forth in the Contract to be paid by
the Buyer to the Seller for the due and timely delivery of the Product(s).
“Design Code” shall mean any and all codes and standards applicable to the
Work, including such codes and standards listed in the technical specifications set
out in the Contract and any codes and standards required to be adhered to in
order to obtain any necessary licence and/or certificate.
“Plant” shall mean the equipment, structures, machinery or system of any kind
not supplied by the Seller and into which the Product is to be incorporated.
“Owner” shall mean the customer of the Buyer (or affiliate of the Buyer, as the
case may be) and/or user of the Product and shall include such person’s
representatives, engineer, successors and assigns, the financing parties to the
project and inspection and testing agencies.
“Product” shall mean any equipment, instruments, materials, articles,
documentation, packaging, computer hardware and software and items of all
kinds to be provided by the Seller under the Contract, including any changes to
the Product made pursuant to Clause 4 (Changes).
“Purchase Order” and “PO” shall mean the purchase order to which these
GT&C apply, issued by the Buyer to the Seller for the Product(s).
“Seller” shall mean the person supplying Work and Products to the Buyer
pursuant to the Contract.
“Subcontractor” shall mean any third party having a contract with the Seller
and/or the Seller’s subcontractors or suppliers in relation to any part of the
Work or Product.
“Work” shall mean any and all works, supplies and/or services required of the
Seller in order to design, manufacture, deliver and/or remedy the Product, as
such result from or may be reasonably inferred from the terms of the Contract.
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(GT&C-EN-PSR-003) ALSTOM Power
(b) Interpretations:
- Words importing the singular shall include the plural and vice versa.
- An expression importing a natural person includes any legal entity.
- Headings and any underlining are for convenience only and do not affect
the interpretation of the Contract.
- All references to documents or other instruments include all amendments
and replacements thereof and supplements thereto.
- A reference to a Party includes that Party’s successors and permitted
assigns, except as otherwise stated.
- All references to the word “include” or “including” are to be construed
without limitation.
1.3 All Contract documents shall be taken as mutually explanatory of one
another. In case of conflict, the documents shall be interpreted and prevail in
the following order of precedence:
a) the PO, including any particular terms and conditions incorporated into
the PO but excluding any appendices to the PO unless expressly stated in
the PO to prevail;
b) if applicable, the agreement under which the PO is issued, excluding any
appendices thereto;
c) these GT&C;
d) if applicable, the appendices to the agreement under which the PO is
issued, in, as applicable, numbering or alphabetical order so that the
appendix 1 or A has the highest priority and so on;
e) as applicable, the appendices to and/or the documents referenced in the
PO, in the order of precedence stated in the PO.
1.4 In no event shall the Seller’s general terms and conditions or other terms
of whatever kind apply (whether the same are in addition to or in lieu of any
provision set forth in the Contract) unless the Buyer has expressly agreed thereto
in writing.
1.5 The Parties acknowledge and agree that the Contract has been jointly
drafted by the Parties and accordingly it should not be construed strictly against
either Party.
1.6 The invalidity, in whole or in part, of any of the provisions of the Contract
shall not affect the remainder of such provision or any other provision of the
Contract. To the extent allowable under the law applicable to the Contract, the
Parties agree in good faith to replace any such invalid provision by a lawful
provision having proximate economic effect.
1.7 Except where the Contract expressly states otherwise, any amendments,
alterations or variations to the Contract shall be binding only if in writing and
signed by duly authorised representative(s) of the Parties.
2. ACKNOWLEDGMENT OF PURCHASE ORDER
The Seller shall acknowledge acceptance of the Purchase Order within ten (10)
days after receipt thereof (or within any such other time period specified in the
PO or agreement under which the PO is issued). In any event, (i) the Seller’s
commencement of performance in any manner, (ii) sending of any invoice or
(iii) acceptance of any payment, in relation to the Purchase Order, shall
constitute unconditional acceptance of the Purchase Order.
3. WORK
3.1 The Seller shall perform the Work in a proper manner and in accordance
with all the terms and conditions of the Contract. The Seller warrants that the
Work will be performed in a safe and workmanlike manner by qualified and
efficient personnel and be of the highest professional quality, the Seller
possessing all the necessary expertise, facilities and equipment required to
perform the Work. Whenever the Product is destined under the Contract for
integration into a specific Plant, the Seller shall ensure necessary interfaces and
interoperability with said Plant. Where the Work includes design, the Seller shall
design the Product to have a design life of not less than twenty-five (25) years,
unless specified otherwise in the Contract.
3.2 The Seller represents and warrants that it has acquainted itself with all
facts, data, documents, circumstances, requirements, impediments (if any) and
considerations relevant to the Work and Product and the Seller’s performance of
its obligations under the Contract (including, where applicable, the interface
requirements for the proper integration of the Product into the Plant) and that it
has agreed to the terms of the Contract accordingly.
3.3 The Seller shall be responsible for its own interpretation of any
documentation and information obtained. No document or information
obtained by the Seller from the Buyer in connection with the Contract shall in
any way release the Seller from its obligation to review any such document and
information and independently verify the same and furthermore promptly to
notify the Buyer of potential problems and/or obtain any additional information
and data from the Buyer or from other sources, where appropriate, in order to
ensure prompt and proper execution of the Work. Any participation by the Buyer
in planning or designing of the Product, in selecting any Subcontractor, in the
processing of any document, information, data, material and/or software, or
any review or approval of any process or data by the Buyer, will not release the
Seller from its obligation to perform the Work and supply the Product in
accordance with the terms of the Contract.
3.4 The Work shall not be subcontracted in whole or part without the Buyer’s
prior written approval. The Seller shall be liable at all times for the acts or
omissions, performance or failure to perform of any Subcontractors.
3.5 In the event of presence or activity of the Seller (and/or any
Subcontractor) on any Buyer and/or Owner site, the Seller, and any
Subcontractors as the case may be, shall at all times comply with the Buyer
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General Terms and Conditions for Purchase of Products
and/or Owner internal rules, including EHS rules and requirements, as
applicable.
4. CHANGES
4.1 The Buyer shall have the right at any time to make changes in the
specifications of any or all of the Products or part thereof, delivery terms, scope
or other provisions of the Contract, by means of a written notice to the Seller. If
in the Seller’s opinion such changes affect the cost or time required for
performance of the Work or any other provision(s) of the Contract, the Seller
shall notify the Buyer promptly in writing, but in no event later than ten (10) days
after the receipt of the Buyer’s notice, including appropriate substantiation
regarding the claimed impact of the change. Subject to the Seller’s notification
in accordance with the foregoing, if and to the extent that the changes requested
by the Buyer reasonably justify in the circumstances an adjustment of the price,
delivery schedule and/or other provision of the Contract, then an equitable
adjustment to the same will be made by the Buyer (“Change Order”). The Buyer
may request the Seller to commence the changes prior to having finalised the
adjustment to the Change Order. Failing a notification by the Seller in
accordance with this Clause 4.1, the Seller shall be deemed to have waived its
rights for an adjustment and shall carry out the change, and the Buyer shall be
entitled to assume that such change will not have any impact on any material
term of the Contract, including time schedule, warranties and price.
4.2 The Seller shall not make any changes to the Work or any provision of
the Contract without the Buyer’s prior written consent.
5. ENVIRONMENT, HEALTH AND SAFETY (EHS)
5.1 Without prejudice to Clause 18, the Seller represents and warrants that:
a) the Work and Product to be supplied to the Buyer shall not include any
arsenic, asbestos, lead or any other hazardous and/or contaminated
substances, elements or waste of any kind that are restricted by law or
regulation at the place of origin and/or any temporary and/or final
destination of the Product or any part thereof pursuant to the Contract, or
by good international power engineering practice;
b) the Seller shall not in the course of any activity arising in connection with
the Contract cause any of the Buyer’s employees or representatives or
any third party authorized by the Buyer to act on its behalf to be exposed
to any such hazardous and/or contaminated substances, elements or
waste as specified in a) above, whether at the Seller’s premises,
workshop, manufacturing sites or at any other location;
c) the Product shall be delivered complete with all instructions, warnings
and other data necessary for safe and proper operation;
d) the Work and Product are in strict compliance with all applicable EHS
requirements, at the place of origin and at any temporary and final
destination of the Product or any part thereof pursuant to the Contract,
including as applicable EU laws and regulations, including Regulation
(EC) No 1907/2006 (“REACH”) as it may be amended from time to time.
5.2 In case of conflict between different EHS requirements, the most stringent
standard shall apply.
5.3 Any Product or Work which does not comply with all of the requirements
of this Clause shall be considered to be defective and any breach of this Clause
shall constitute a material breach of the Contract. The Seller shall indemnify and
hold harmless the Buyer, its affiliates, officers, employees and agents against
any and all liabilities, claims, expenses, loss and/or damage which may arise as
a result of the breach of its obligations and/or warranties under this Clause.
6. INSPECTION AND QUALITY ASSURANCE
6.1 The Seller shall implement an appropriate and recognised quality
assurance programme for the Work and shall satisfy itself and the Buyer by
means of appropriate documentation, processes, inspections, tests and other
quality management measures that the Work conforms to the requirements of
the Contract. The Seller shall perform all tests and inspections and/or provide
all reports and certificates as required under the Contract and/or as the Buyer
may reasonably require. The Seller shall provide the Buyer timely notification of
any testing and the Buyer and/or any third party authorised by the Buyer shall
be entitled to attend the tests. The Product shall not be dispatched to the Buyer
without an inspection and release by the Buyer, unless the Buyer waives such
inspection and release.
6.2 The Seller’s performance under the Contract and the Work shall at all
times be subject to inspection and quality review by the Buyer, and/or any third
party authorised by the Buyer, which, upon reasonable notice, shall be afforded
full and free access to the relevant facilities of the Seller and/or Subcontractors.
Upon receipt of the Product, the Buyer may, at its sole discretion, inspect the
same or any part thereof at that time or at any time thereafter. If the Contract
includes the carrying out of tests on the Product after its receipt by the Buyer,
then the Work shall not be deemed complete until such tests have been passed
to the satisfaction of the Buyer.
6.3 Any approval of a test by the Buyer, any Buyer inspection or testing,
waiver thereof or failure to perform the same shall in no event relieve the Seller
from any liability nor imply the Buyer’s acceptance of the Work or Product.
7. DOCUMENTATION
7.1 The Seller shall furnish as part of the Product any operation and
maintenance manuals, drawings, calculations, technical data, logic diagrams,
progress reports, quality confirmation certificates, bills of lading, certificates of
origin, export authorisations and licences, and any such other documents
required under the Contract and/or applicable laws. If so required by the Buyer,
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(GT&C-EN-PSR-003) ALSTOM Power
the Seller shall submit any such documents to the Buyer for review and
approval.
7.2 Delivery of the Product shall not be deemed complete until delivery of all
required documentation in accordance with the Contract has occurred.
7.3 The Seller shall keep all Work-related data and documents at least for
ten (10) years after Product delivery or any such longer time required by
applicable law. The Seller warrants that all records to trace and evidence
compliance with the Contract requirements, including EHS requirements, shall at
all times be available to the Buyer and/or the Owner.
8. PACKING, TRANSPORTATION AND DELIVERY
8.1 Irrespective of whether the transportation is provided by the Seller or the
Buyer, the Seller shall adhere to the shipping, packing and marking and the
material handling instructions provided by the Buyer. The Seller shall in a timely
manner provide detailed and accurate transport documentation to the Buyer as
the Buyer may reasonably require.
8.2 The Product shall be delivered in accordance with the delivery terms set
out in the Contract. Delivery terms shall be interpreted in accordance with
Incoterms 2000.
8.3 Delivery of the Product shall not be deemed to have occurred if the
Product is not fully compliant with all the terms and conditions of the Contract,
unless the Buyer expressly agrees otherwise in writing.
9. TRANSFER OF RISK AND TITLE
9.1 The risk of loss of or damage to the Product shall pass from the Seller to
the Buyer upon delivery of the Product at the named destination.
9.2 Title to the Work and Product or any part thereof shall pass to the Buyer
on delivery or, if earlier, upon payment to the Seller of not less than fifty-one per
cent (51%) of the price of such Work or Product or part thereof. If requested by
the Buyer to do so, the Seller shall promptly execute any document certifying
transfer of title.
9.3 In case of any defect in title or encumbrance or lien upon the Product or
any part thereof, the Seller shall promptly indemnify and defend the Buyer
against any and all claims in relation thereto and cause the discharge of any
such encumbrance or lien.
9.4 Any materials, components, tools, patterns, dies, equipment,
consumables and other items belonging to or provided by the Buyer, which are
in the Seller’s custody for any purposes, shall be clearly marked and recorded
by the Seller as belonging to the Buyer and during such custody shall be at the
Seller’s risk. Legal ownership in and/or the right to dispose of any such Buyer
items shall under no circumstances pass to the Seller. Upon the Buyer’s request,
including in case of termination for whatever reason, the Seller, without delay,
shall allow the Buyer, and/or any third party mandated by the Buyer, to enter
any premises or worksites of the Seller to repossess any such Buyer items or any
part thereof, including as applicable severing any such Buyer items or parts
thereof from other property.
10. DELAYS
10.1 The Seller warrants that the Work shall be performed in a timely manner
and the Product shall be delivered in accordance with the Contract on the
specified delivery date. The Seller shall notify the Buyer immediately in writing if
any delivery or performance is delayed or likely to be delayed beyond its
specified date. The notification shall include the Seller’s proposal for
acceleration of the progress to achieve the delivery date(s). Measures for
expediting progress shall include the use of additional manpower and material,
multiple shift and weekend work, premium means of transport (such as
airfreight). The costs of the acceleration measures shall be borne by the Seller,
unless it is established that the Buyer is solely responsible for the delay.
10.2 Except where the Buyer has requested, by means of a written notice to the
Seller, to postpone delivery and where the Seller is excused from the punctual
performance pursuant to Clause 16 (Force Majeure), if the delivery of the Product
(including full documentation) at the named destination is delayed beyond the
delivery date, the Seller shall be liable for liquidated damages (irrespective of
whether or not the Buyer reserves its right thereto when taking delayed delivery
or acknowledging delayed completion), without prejudice to the Buyer’s right to
claim compensation from the Seller for any additional damage arising out of or
in connection with the delay. Unless stated otherwise, the liquidated damages
due by the Seller for a delay shall be, per Product, three per cent (3%) of the
Contract Price for each week of delay and/or pro rata temporis for any part of a
week. Said liquidated damages are due even without evidence of actual
damage. Liquidated damages will not be due by the Seller to the extent that the
Seller’s delay is due to an act or omission of the Buyer provided that the Seller
has notified the Buyer in writing within three (3) days of the occurrence of such
act or omission, specifying the impact of the Buyer’s act or omission on the
schedule. It is agreed by the Parties that damages paid under this Clause 10 are
not a penalty but are a genuine and reasonable pre-estimate of the losses that are
likely to be suffered.
11. PRICE AND PAYMENTS
11.1 The Contract Price shall be firm and fixed and shall constitute the Seller’s
sole entitlement to compensation for its performance of the Contract.
11.2 The Contract Price includes all levies, taxes, fees, and duties applicable to
the performance of the Work and the delivery of the Product at the named
destination, and the Seller shall promptly pay all such taxes, fees, or duties and
immediately indemnify the Buyer if the Buyer is called upon to pay the same.
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General Terms and Conditions for Purchase of Products
11.3 Any payments shall be made in accordance with the terms specified in
the Contract. Unless specified otherwise in the Contract, the Seller shall be
entitled to invoice for payment for the Products only when delivery in accordance
with the Contract has occurred, and payments due by the Buyer shall then be
made within ninety (90) days after receipt of the Seller’s invoice accompanied by
the relevant documentation, into the bank account nominated by the Seller,
which payment shall discharge the Buyer’s payment obligation. The Buyer shall
be under no obligation to make any payment to the Seller if the Seller is in
breach of contract (including any breach of warranties) and for so long as such
breach continues. Payment by the Buyer shall not be deemed to constitute an
acceptance of the Product or Work. If the Buyer is in default in respect of any
sum due and payable, the Seller, by way of a sole and exclusive remedy, shall
be entitled to interest at the rate of four per cent (4%) per annum above the
Bank of England base rate in force on the date when the debt becomes overdue
or any such subsequent base rate where said base rate changes and the debt
remains unpaid (on a pro rata temporis basis).
11.4 The Seller shall not be entitled to set off any claim that it might have
against the Buyer against sums owing to the Buyer unless such Seller claim is
undisputed by the Buyer or has been decided in the Seller’s favour finally and
conclusively pursuant to Clause 25.1 (Dispute Resolution Procedure).
11.5 The Seller shall cause a first class bank, reasonably acceptable to the
Buyer, to issue an irrevocable and unconditional bank guarantee, payable on
first demand, to serve as performance guarantee, as follows:
- the amount shall be twenty per cent (20%) of the Contract Price, unless
stated otherwise;
- the text shall be substantially in the form set forth in the Contract;
- the guarantee shall be issued to the Buyer within twenty (20) days after the
date when the Contract becomes effective;
- the Buyer shall be entitled to call the guarantee in case of any breach of
the Contract; and
- the guarantee shall remain valid until the date which is sixty (60) days after
the expiry of the latest defects liability period, as such may be extended
from time to time, in respect of all Products delivered under the Contract.
The costs of issuing and maintaining the performance guarantee shall be borne
by the Seller. The delivery of the guarantee in accordance with this Clause shall
be a condition precedent to any payment by the Buyer under the Contract.
12. DEFECTS LIABILITY
12.1 Seller’s Warranties
In addition and without prejudice to all other warranties provided by the Seller
under the Contract, the Seller warrants that (a) the Work and Product will be
new, of good and satisfactory quality and fit for the purposes for which it is
intended, in strict conformity with all requirements of the Contract and free from
any defect or lack of conformity in design (except to the extent the design is
provided to the Seller by the Buyer and for which the Seller disclaimed liability in
writing), workmanship and material and (b) the Buyer shall enjoy good and
unencumbered title to the Work and Product and any related materials.
12.2 Defects Liability Periods
12.2.1 The defects liability period shall expire, with respect to a given Work or
Product, on the earlier of (i) the date which is twenty-four (24) months from the
Owner’s provisional acceptance of the Plant, or (ii) the date which is forty-eight
(48) months from the respective Product delivery; provided however that (a) with
regard to such defects or nonconformities which could not have been discovered
by reasonable examination prior to the expiration of such period (latent defects),
the defects liability period shall expire twelve (12) months later, and (b) in case
of repair or replacement of any parts of the Work or Product, the defects liability
period shall start afresh with respect to that part, as from the date when the
defective or non-conforming part has been remedied and returned to service.
12.2.2 If during the applicable defects liability period the Buyer discovers any
defect or nonconformity, it shall notify the Seller thereof, it being expressly
agreed that such notice may be made at any time provided only that it be made
prior to the expiry of a period of thirty (30) days after the end of the applicable
defects liability period.
12.2.3 Any claims and remedies relating to defects or nonconformity of the
Work or Products notified in accordance with the above may be enforced by the
Buyer at any time during a period of five (5) years after the Buyer’s notification
of the defect or nonconformity.
12.3 Buyer’s Remedies
12.3.1 If prior to expiration of the defects liability period any part of the Work
or Product is defective or otherwise does not conform to the terms of the
Contract, including in particular the warranties given under the Contract, then,
in addition and without prejudice to its other rights and remedies available
under the Contract or by law, including the right to terminate the Contract in
accordance with Clause 20.1, the Buyer may, at its option, demand that the
Seller remedy the defect or nonconformity at the Seller’s expense, or opt to
accept a defect or nonconformity and demand an equitable reduction of the
Contract Price to reflect the reduced value of the Work or Product. If the defect
or nonconformity is so significant that the Work or Product cannot be used for its
intended purpose or such use is significantly impaired, the Buyer may reject said
Work or Product and return it to the Seller at the Seller’s expense and risk, and
reclaim any sums paid in respect thereof, with interest.
12.3.2 The Seller shall endeavour to complete any remedial work in the
shortest possible time. If, after having received notification of any defect or
nonconformity by the Buyer requiring the Seller to repair or replace the Work or
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Product or any part thereof, the Seller fails to remedy the defect or
nonconformity with due diligence and within the time specified by the Buyer (or
failing that within a reasonable time after the Buyer’s request), or in the event of
a recurring defect or nonconformity, the Buyer (i) shall be entitled to carry out
any remedial work itself or through a third party, at the Seller’s expense and risk
or (ii) reject the Work or Product or part thereof and require the Seller to return
any sums paid in respect thereof, with interest. In the event of an emergency or
if the circumstances otherwise reasonably justify such action, the Buyer and/or
the Owner shall be entitled to carry out any remedial work, itself or through a
third party (without need for any notice period). If any replacement or remedial
work, for which the Seller is liable, is carried out by the Buyer or the Owner
(themselves or through any third party) pursuant to the terms of this Clause, the
Seller shall reimburse the Buyer and/or the Owner for any reasonable direct
costs incurred thereby, including the reasonable expenses related to
administration and handling, and any such replacement or remedial work shall
not release the Seller from any warranty provided under the Contract or any
other obligation.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 All information and know-how including drawings, specifications and
other data provided by the Buyer in connection with the Contract as well as any
documents or data that include, are derived from or are based on such
information and know-how shall remain at all times the property of the Buyer or
its affiliate(s) (as the case may be) and may be used by the Seller only for the
purpose of performing the Contract. Any such information and documents are
Confidential Information and thus subject to Clause 17 (Confidentiality).
13.2 The Seller expressly represents and warrants that it will not, and shall
ensure that its affiliates and subcontractors will not, either alone or jointly with
others, directly or indirectly through any other person, infringe the intellectual
property rights of the Buyer or its affiliate(s) and without prejudice to the
foregoing, shall not (a) accept or use, for any reason, any of the proprietary
information of the Buyer or its affiliate(s) which it has reason to believe has been
improperly obtained from such party; (b) reveal, or entice any person to reveal,
any of the proprietary information of the Buyer or its affiliate(s) to any third party
without prior written approval by the Buyer; (c) use, or entice any person to use,
proprietary information of the Buyer or its affiliate(s) for any purpose other than
that which is expressly authorized by the Buyer (collectively, the prohibited
activities set forth in this sentence shall be referred to as “Piracy”). Any violation
by the Seller of such representation and warranty shall constitute a material
breach of the Contract. The Seller undertakes to promptly inform the Buyer if the
Seller becomes aware that any third party is engaging in any Piracy of the trade
secrets or proprietary information of the Buyer or its affiliate(s).
13.3 Ownership of any intellectual property rights as well as any rights in the
know-how, technology, process and development of products, created in the
course of the contractual relationship between the Parties shall vest in the Buyer
upon their creation. The Seller shall do all such things and execute all such
documents as may be necessary to effectuate any such ownership of the Buyer.
13.4 The Seller warrants that the Work and Product, and any material, design
or any other works or information provided by or on behalf of the Seller,
including the use thereof, does not infringe any patent, copyright, registered de-
sign, trademark, trade name, trade secret or other intellectual property right of
a third party, and the Seller will, at its expense, defend, indemnify and hold
harmless the Buyer and the Buyer’s customers from and against all claims and
liability based on alleged or actual infringement thereof. The Buyer, at its option,
may require the Seller (a) to procure at the Seller’s expense for the Buyer and
the Buyer’s customers the right to use the Product, (b) to take such action to
alter, modify or replace the Work or Product or part thereof, such that it no
longer infringes, provided however that this does not cause any adverse effect
on the Product or its intended use, or (c) to refund the Contract Price or the
corresponding part thereof, with interest, upon the return by the Buyer of the
infringing Product.
13.5 The Buyer shall have the irrevocable, royalty free and unrestricted world-
wide right to use (including the right to sublicense to any tier level) all systems,
programmes, documentation, know-how or other intellectual property rights
relating to or embodied into the Work or Product delivered to the Buyer.
14. THIRD PARTY CLAIMS
The Seller shall indemnify, hold harmless and defend the Buyer, its agents,
employees, officers and directors, from and against any and all claims, liabilities
and expenses (including legal fees) arising out of or in relation to the
performance or non-performance of the Contract and resulting in bodily injury
or death or damage to or destruction of third-party property.
15. INSURANCE
As from the date when the Contract becomes effective, until thirty (30) days after
the expiry of the latest defects liability period, as such may be extended from
time to time pursuant to Clause 12.2.1, the Seller shall procure and maintain,
and cause its Subcontractors to procure and maintain, appropriate insurance
coverage, with a reputable insurer acceptable to the Buyer, with respect to the
subject matter of the Contract. Upon the Buyer’s request, the Seller shall
promptly furnish the Buyer with insurance certificates evidencing such insurance
coverage. Any such insurances shall name the Buyer as an additional insured
and contain a waiver of rights of subrogation against the Buyer, its subsidiaries,
affiliates and their respective employees. The Seller shall be liable for all
deductibles and/or excesses except where the Buyer is solely responsible for the
occurrence giving rise to any insurance claim involving the Work, Product or
Contract. Comprehensive general liability and product liability insurances shall
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General Terms and Conditions for Purchase of Products
be for at least EUR 3,000,000 (three million euros), or its equivalent in British
pounds, per occurrence.
16. FORCE MAJEURE
16.1 “Force Majeure” shall mean any event or circumstance, to the extent that
such event or circumstance (i) is beyond the reasonable control of the Party relying
thereon, (ii) could not reasonably have been foreseen at the date of the Contract,
(iii) which the affected Party (and/or any third party within the control of such
Party, including any Subcontractor), acting and having acted with all due
diligence, could not have prevented, mitigated or overcome, and (iv) is not an
act, event or condition, the risks or consequences of which the affected Party has
expressly agreed to assume under the Contract; including, subject to the
conditions set out herein, acts of God, war, earthquake, terrorist acts and national
strikes or labour disputes. For the avoidance of doubt, factory unrest and
employee strikes of any kind (except as expressly stated above), as well as
production bottlenecks, or the lack of the required import licenses or import
authorizations of the authorities, lack of qualified personnel, lack of material, or
financial problems on the part of the affected Party shall not be deemed to be
Force Majeure events.
16.2 If the performance by either Party of its obligations under the Contract is, in
whole or in part, prevented or delayed by reason of Force Majeure, then such Party
shall not be considered in default and shall be excused from the performance or
punctual performance, as the case may be, of such obligations, as long as and to
the extent that performance of those obligations is affected by the Force Majeure,
and any affected obligations, including the corresponding obligations of the
Party not affected by Force Majeure, as the case may be, shall be equitably ad-
justed; provided however that, unless otherwise expressly provided herein, the
Seller shall not be entitled to compensation for additional costs incurred by virtue
of such Force Majeure.
16.3 A Party intending to seek Force Majeure relief under the Contract shall
not be entitled to such relief unless such Party shall:
a) within three (3) days after becoming aware of the occurrence of Force
Majeure, give notice to the other Party of its intent to claim Force Majeure;
b) within ten (10) days after becoming aware of the occurrence of Force
Majeure, submit to the other Party sufficient detail regarding the event or
circumstance, including its causes and consequences on the performance of
the Contract, and all reasonable evidence serving to establish the Force
Majeure; if the Seller seeks an extension of time due to Force Majeure, it
shall in particular provide appropriate evidence that the Force Majeure has
in fact impacted the timely delivery of the Product;
c) without undue delay, undertake all reasonable steps to mitigate the effect
of the Force Majeure on the performance of the Contract and inform
the other Party accordingly.
17. CONFIDENTIALITY
17.1 Each Party shall maintain any Confidential Information in strict confidence
and shall not disclose the same to any third party or use Confidential
Information except for the Proper Purpose, where “Proper Purpose” shall mean
the performance of the Work under the Contract and the use by the Buyer (or an
affiliate of the Buyer) of the Work or Product for tenders, sale, manufacture,
erection, commissioning and/or servicing of power systems and equipment.
Nothing contained herein shall preclude the Buyer from (i) sharing any or all of
the Confidential Information with any of its affiliates or (ii) disclosing
Confidential Information received from the Seller as part of any Work or Product
to the Owner or to consortium partners or their respective employees, directors,
agents and/or advisors to the extent necessary for the Proper Purpose and
provided that they are similarly bound by undertakings of confidence, restricted use
and non-disclosure. Further, nothing contained herein shall prevent disclosure of
Confidential Information (i) with a view to complying with the requirements of
any applicable law and/or an order of the court or arbitral tribunal or (ii) to the
extent necessary to resolve a claim or dispute pursuant to Clause 25 (Dispute
Resolution), or to the extent necessary for the Buyer to resolve a claim or dispute
with third parties and/or insurance claims, provided always that the Party so
required to disclose any such Confidential Information of the other Party timely
informs and consults the other Party and takes all reasonable steps to minimise
the extent of the Confidential Information disclosed and to make such disclosure
in confidence.
17.2 Except where provided otherwise in the Contract, upon expiry or termination
of the Contract, each Party shall, if so requested in writing by the other Party,
immediately return to the other Party or destroy all Confidential Information.
18. COMPLIANCE
18.1 The Seller warrants that the Work and Product are in strict compliance
with all applicable laws and regulations at the place of origin and at any
temporary and final destination of the Product or any part thereof pursuant to
the Contract, that the Work shall be performed in accordance with good
international power engineering practice, and that the Work and Product shall
conform to the applicable codes and standards and to all other requirements of
the Contract.
18.2 The Seller hereby acknowledges having read and having full knowledge
of the Charter for Sustainable Development and the Code of Ethics set out by
ALSTOM and the last updated versions of which are available on the ALSTOM
web site at the following address www.alstom.com on the date hereof, and
undertakes to comply with their provisions, and to ensure, when applicable, that
each entity of the group it belongs to and any Subcontractors comply with such
provisions.
18.3 The Seller warrants that it has not directly or indirectly paid any
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(GT&C-EN-PSR-003) ALSTOM Power
commission, fees or granted any rebates to any third party, employees of the
Buyer or the Buyer’s customer, or made any gifts, entertainment or any other
non-monetary favours or other arrangements.
18.4 Any Product or Work which does not comply with all of the requirements
of this Clause shall be considered to be defective and any breach of this Clause
shall be considered to be a material breach. The Seller shall indemnify and
hold harmless the Buyer, its affiliates, officers, employees or agents, from and
against all liabilities, claims, expenses, loss and/or damage arising out of or in
connection with the Seller’s breach of its obligations and/or warranties under
this Clause.
19. SUSPENSION
The Buyer may at any time instruct the Seller to suspend the performance of the
Work or portion thereof by giving notice to the Seller. In such case, the Seller
shall (i) discontinue performance under the Contract to the extent specified in
the suspension notice, (ii) other than to the extent required in the suspension
notice, place no further orders or subcontracts with respect to the suspended
part of the Work, (iii) take all other reasonable steps to minimise costs
associated with the suspension. Except where the Buyer has suspended for the
Seller’s breach and/or Force Majeure, if and to the extent that the suspension
exceeds three (3) months, the Buyer shall reimburse the Seller for the direct costs
(excluding any profit element) attributable to the suspension which are incurred
during the suspension period, provided that the same are reasonable and
properly evidenced in writing by the Seller. The Seller shall be entitled to no
other payment or compensation during the period of the suspension or as a
consequence of the suspension. Except as expressly provided in Clause 16
(Force Majeure) and this Clause 19, any suspension of the Work by the Seller
shall be deemed a wilful breach of contract.
20. TERMINATION
20.1 Termination for Cause
20.1.1 Without prejudice to any other termination right of the Buyer existing at
law or in contract and without prejudice to any other rights or remedies of the
Buyer, the Buyer, without liability, may terminate forthwith the whole or part of
the Contract by written notice to the Seller in the following cases:
(i) the Seller is in material breach of its obligations, including:
- any breach of the Contract which the Seller has failed to remedy within
thirty (30) days of being notified of the same by the Buyer;
- breach of EHS requirements, including supply of any hazardous and/or
contaminated substances (Clause 5);
- infringement of intellectual property rights and/or violation of non-
piracy obligations (Clause 13);
- breach of confidentiality obligations (Clause 17);
- breach of compliance requirements, including any violation of non-
bribery or non-corruption obligations (Clause 18);
- assignment of the Contract or subcontracting of the whole or any part of
the Work without the consent of the Buyer;
(ii) the Seller does not begin performance in a timely manner, fails to make
progress as per the Contract, or is otherwise in delay and fails to provide
adequate assurances that delivery of the Product in accordance with the
Contract will occur in a timely manner as per the Contract;
(iii) the Seller becomes bankrupt or insolvent, makes an arrangement with its
creditors, has a receiver or administrator appointed, commences winding
up or similar proceedings or ceases or threatens to cease to carry on
business or becomes unable to pay its debts as they fall due.
20.1.2 Upon receipt of the Buyer’s termination notice, the Seller shall
immediately discontinue further performance of the Work affected by the
termination and segregate any Work from other work that is not part of the
Contract. The Buyer may, at its option, reject all or part of the Work or complete
the Work or any part thereof itself or through any third party at the costs and
risks of the Seller, all without prejudice to any other rights and remedies
provided under the Contract or by law.
20.1.3 Upon the Buyer’s request and at the Seller’s costs, the Seller shall:
- promptly turn over to the Buyer any or all portions of the Work whether or
not completed, provide the Buyer with all the documents, information and
necessary rights required for the Buyer to be able to complete the Work, or
have it completed by a third party;
- assign to the Buyer all subcontracts and vendor contracts relating to the
performance of the Contract to the extent possible;
- do and procure all things necessary to vest and secure the Buyer’s good
title in the Work and Product.
20.1.4 The Seller shall promptly upon the Buyer’s request compensate the
Buyer for all costs, expenses, damage and loss incurred by the Buyer as a result
of or in connection with the termination and/or the Seller’s default, including:
- all costs and expenses incurred to complete the Work, or have it completed
by third parties, and achieve a Product in accordance with the terms of the
Contract;
- any damages and losses suffered by the Buyer in the event that the Work or
Product fails to comply with the terms of the Contract and/or as a result of
delay in achieving the Product by the delivery date specified in the Contract.
20.1.5 The Seller’s entitlement for the parts of the Work or Product taken over
by the Buyer shall be equal to the value of the same as determined by the Buyer
less the amount of the Buyer’s prepayments, if any. The Buyer is entitled to
withhold payment of any amounts due to the Seller until the completion costs
and any other damages due by the Seller in connection with the termination
and/or breach have been established.
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General Terms and Conditions for Purchase of Products
20.2 Termination for Convenience
20.2.1 Subject to the provisions of this Clause 20.2, the Buyer may at any time
terminate the Contract, in whole or in part, for convenience by giving the Seller
written notice of such termination. Upon receipt of the Buyer’s termination
notice, the Seller shall immediately discontinue further performance of the Work
affected by the termination and segregate any Work from other work that is not
part of the Contract. Upon the Buyer’s request, the Seller shall deliver to the
Buyer any parts of the Work, whether or not completed, and do and procure all
things necessary to enable the Buyer to complete the Work, or have it completed
by a third party and to vest and secure the Buyer’s good title in the Work and
Product.
20.2.2 The Seller shall be entitled to (a) for any items of Work delivered in
accordance with the Contract prior to or pursuant to the Buyer’s termination, an
amount equal to the value of such items and (b) an equitable amount to cover
the Seller’s direct, unavoidable costs incurred or committed by it prior to
termination, provided however that such amounts be properly established;
provided that any such amounts due to the Seller shall in no case exceed, in the
aggregate, the Contract Price. The Seller shall make every reasonable effort to
mitigate the termination costs and shall promptly submit to the Buyer, for its
review and approval, the termination costs together with supporting evidence. If
the Buyer disputes the termination costs submitted by the Seller, it shall be
entitled to have the Seller’s accounts audited by a competent accounting firm of
its choice. The Seller shall be entitled to no other payment or compensation as a
consequence of the termination.
21. SELLER CLAIMS
The Seller shall only be entitled to make a claim in the circumstances set forth
expressly in the Contract. The Seller shall not be entitled to exercise any lien on
any Buyer property. As a condition precedent to any claim, the Seller shall (i)
give notice to the Buyer of any circumstance which in the Seller’s view might give
rise to a claim within three (3) days of the occurrence and (ii) submit any claim in
writing to the Buyer including all such substantiation and evidence as reasonably
practicable within ten (10) days of the occurrence giving rise to the claim.
22. LIABILITY
Neither Party shall be liable to the other, whether in contract, tort, strict liability
or otherwise, for loss of production, loss of use, loss of goodwill or reputation,
loss of savings or profit, loss of revenue, loss of contract, or for any indirect loss
or damage suffered by the other Party. For the avoidance of doubt, the
foregoing is without prejudice to the Seller’s liability to pay pre-agreed
liquidated damages and the foregoing exclusion of liability shall not apply to
and shall therefore not serve as an exclusion or limitation of liability (i) in
relation to any indemnity obligations of the Seller or (ii) in the event of gross
negligence or willful misconduct.
23. MISCELLANEOUS
23.1 Spare Parts
The Seller warrants that it will be able to deliver spare parts necessary for the
proper functioning of the Product for a minimum of twenty (20) years from the
date of delivery.
23.2 Assignments
The Buyer may novate or assign the Contract or any part thereof to the Owner
or to any affiliate or subsidiary of the Buyer upon written notice to the Seller. The
Seller shall not assign or novate the Contract or any part thereof without the
Buyer’s prior written consent.
(GT&C-EN-PSR-003) ALSTOM Power
terms of the Contract. It is hereby acknowledged and confirmed that neither
Party has entered into the Contract in reliance on any representation by the
other Party, whether oral or written, made prior to the signing of the Contract
and not expressly incorporated as a term of the Contract.
23.7 Waiver
Neither Party’s rights shall be prejudiced or restricted by any indulgence or
forbearance extended by such Party or by any delay in exercising or failure to
exercise any right and no waiver by either Party of any breach shall operate as a
waiver of any other or further breach, whether of a like or different character.
No waiver by either Party of any provision of the Contract shall be effective
unless in writing and duly executed by an authorised representative of the Party.
23.8 Notices and Communications
23.8.1 Any communication dealing with the day-to-day business between the
Parties can be made by electronic mail.
23.8.2 Any notice to be given to either Party under the Contract shall be in
writing and shall be served by delivering it by hand, or sending it by courier,
post or facsimile to the respective addresses stated in the PO. Any such notice
shall be deemed to have been given:
- on the date of delivery or refusal to accept delivery if delivered by hand;
- on the first business day in the country of the receiving party after despatch
if sent by facsimile;
- on the date of delivery if sent by courier or post.
23.8.3 Either Party may change its nominated address by written notice sent to
the other Party in accordance with the procedure described herein.
24. GOVERNING LAW AND CONTRACT LANGUAGE
24.1 The Contract and any dispute in relation thereto shall be governed by
and construed in accordance with the laws of England with the exception of its
conflict of law provisions. The application of the United Nations Convention on
Contracts for the International Sale of Goods (1980) is hereby expressly
excluded.
24.2 The language of the Contract shall be English and all communications
thereunder or in relation thereto shall be delivered in English unless otherwise
agreed.
25. DISPUTE RESOLUTION
25.1 Dispute Resolution Procedure
All disputes arising out of or in connection with the Contract shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by
three arbitrators appointed in accordance with the said Rules of Arbitration. The
place of arbitration shall be London, United Kingdom and the language shall be
English. The arbitration shall be confidential.
25.2 Continued Performance
Unless the Contract has already been suspended and/or terminated pursuant to
the appropriate provisions, the Seller shall in every case proceed with the
performance of all of its obligations under the Contract during and
notwithstanding any dispute resolution and/or arbitration proceedings or
litigation.

23.3 Survival of Obligations

Without prejudice to any specific provision in the Contract, any obligations and
duties which by their nature extend beyond the expiration or termination of the
Contract, including the provisions of Clause 12 (Defects Liability), Clause 17
(Confidentiality) and Clause 25 (Dispute Resolution), shall survive the expiration
or termination of the Contract.

23.4 Independent Seller

The Seller hereby acknowledges that it is an independent seller. The Contract
shall not be interpreted or construed to create any relationship of agency,
association, joint venture, or partnership between the Parties or to impose any
partnership obligation or liability upon either Party. Neither Party shall have any
right, power or authority to enter into any contract or undertaking for, or act on
behalf of, or to act as or be an agent or representative of, or to otherwise bind,
the other Party, unless expressly agreed otherwise in writing.

23.5 Third Party Rights

For the purposes of the Contracts (Rights of Third Parties) Act 1999, this
Contract is not intended to, and does not confer on any person who is not a
party to it, any right to enforce any of its provisions, except as expressly provided
in the Contract or otherwise agreed between the Parties in writing.

23.6 Entire Agreement

The Contract shall be and incorporate the entire agreement and understanding
between the Parties in relation to all matters contained therein, and supersedes
all previous oral and written representations whether made negligently or
innocently (but expressly excluding fraudulent representations) at any time prior
to the execution of the Contract and which are not expressly incorporated as

Rev.2 / May 2010 Page 5