1. – DEFINITIONS
Unless specifically agreed otherwise, these General Terms of Sale apply to tenders, agreements, orders or contracts (hereinafter referred to as the “Order” or “Orders”) pertaining to sales of products (hereinafter referred to as the “Products”) made in The Philippines.
2 – VALIDITY OF THE AGREEMENT – ORDER OF PRECEDENCE
These General Terms constitute the whole of the agreement between the Seller and the Buyer relating to carrying out any Order issued by the Buyer and accordingly supersede all prior undertakings, commitments, negotiations, statements, written or verbal communications, acceptances and agreements between the Seller and Buyer relating to the said Order.
No stipulation to the contrary stated on any document of the Buyer shall, in any way whatsoever, alter these General Terms, unless the Seller has expressly agreed thereto in writing.
To the extent that the specific conditions defined in each Order have been approved by the Seller and the Buyer and, in the case of any contradiction between the General Terms of Sale and the specific conditions and/or any other applicable document attached or pertaining thereto by reference, the following order of descending priority shall apply:
• the specific conditions; and
• the General Terms of Sale; and
• any other document attached thereto or incorporated therein by reference.
3 – PRICES – TAXES AND CHARGES
Prices are understood to be inclusive of VAT 12%, the break down of the price should be indicated. Any relevant new tax imposed by the Government or any of its instrumentalities while the Agreement is current shall be added to the price in the month the tax became due provided that the parties shall agree to restructure the price the same month the tax became due. The prices in application are those on the yearly Price List (SRP) in force on the date of delivery and invoicing and reduced by the agreed discount if any. Prices are firm. The Buyer expressly agrees not to request any price revision, regardless of circumstances.
4 – DELIVERY – TRANSFER OF RISK AND OWNERSHIP
Delivery lead times are given as an indication only and the Seller shall not be bound to pay any penalty charge or compensation should delivery take place on a different date.
Products travel at the Seller’s risk and liability. It falls to the buyer to check them on arrival and, where appropriate, to express any reservations to the delivery carriers. Delivery charges are included for delivery in NCR above 100,000PHP. Outside of NCR and/or below 100,000PHP per delivery, transport will be invoiced to the buyer as per the additional cost involved.
The specific instruction to deliver at a different address must be in writing and confirmed by the buyer.
The pick up of the products by a third party must be in writing and confirmed by the buyer.
5 – RETENTION OF TITLE
The Seller shall retain ownership of the Products until the price has been paid in full, in spite of their having been delivered to the Buyer.
Notwithstanding the provisions above and by express agreement, the Buyer shall be liable for all damage and loss occurring after delivery of the Products.
Failure by the Buyer to make any payment by its due date as per their credit terms if any may result in the Seller reclaiming the Products delivered, the suspension of all deliveries of Products in progress and modification of payment terms.
6 – CONDITIONS OF ACCEPTANCE OF DELIVERIES BY THE BUYER
Unless different features are expressly agreed in writing between the Seller and Buyer, the features of the Products are those defined in the Seller’s technical documentation (hereinafter referred to as the “Specifications”).
The Seller’s Products are subject to checks and tests in its factories in accordance with its usual procedures. If the Buyer were to request a specific acceptance procedure for the Products, the corresponding costs shall be at its charge.
To be admissible and qualify for application of the provisions of this paragraph, all claims regarding compliance of the Products with the Specifications must be lodged in accordance with the Seller’s procedures within five working days of the date of delivery. Claims will no longer be admissible after 5 days.
No claim shall be admissible once the Products have been modified or have deteriorated because of action or inaction by the Buyer, in particular during storage, inspection, installation, assembly and disassembly.
Inasmuch as the merits of the Buyer’s claims are established and acknowledged as such by the Seller, the latter undertakes to accept the return of the defective Products only, at its cost, subject to the returns being made in their original packaging, intact and in good condition.
No Product may be returned without the Seller’s prior written agreement.
In the event a return is accepted, the Seller may choose either to replace or repair the Products it has acknowledged as being defective, or to credit the Buyer with the price of the said Products if there is no overdue of the seller account. In no event shall the Buyer be able to rely on such a return to cease making any payment for which it is liable towards the Seller, nor for cancelling all or part of any Order in progress.
7 – FORCE MAJEURE
The Seller shall not be deemed to be in default of its contractual obligations if such defaults are due to the occurrence of a case of Force Majeure.
Force Majeure covers all unforeseeable and irresistible events of any nature whatsoever that are outside the Seller’s control, such as natural disasters, bad weather, fire, strikes, sabotage, embargo, interruptions, delays in transport services or methods of communication, events or acts originating from civil or military public authorities (including all delays in securing any authorizations or permits of any kind whatsoever), declared or undeclared war, which have the effect of rendering the Order temporarily or permanently impossible to carry out.
8 – WARRANTY
The Seller guarantees to the Buyer that the Products supplied pursuant to the Order shall be delivered with no material, design or manufacturing defect.
This warranty shall take effect from the date of manufacture of the Products or at the latest, from the date of delivery of the Products, for a period of twenty-four (24) months. UPS products are covered for a period of 12 month from the date of delivery. If it transpires during the warranty period that any part of the Product is defective under this warranty and to the extent that the Buyer gives prompt notice thereof within a reasonable time which in all events shall not exceed five working days from the Buyer becoming aware of the defect, the Seller shall correct the said defect at its sole discretion either by repairing the defective part or parts, or by delivering a repaired or replacement component in accordance with Incoterm EXW as defined in the ICC INCOTERMS. This warranty shall also apply to any part of the Product or Products or spare parts repaired or replaced under this warranty, for the remaining warranty period. This warranty does not apply to consumables or to non-reusable components or to defects originating from or connected with failings of the Buyer in regard to the use, installation or maintenance of the Products according to the Specifications and all related documentation and more generally according to accepted standards of use of the Products. This warranty shall also not apply to defects arising from or connected to (i) the combining of the Product with a product not designed or manufactured by the Seller, or (ii) a modification of the Product carried out by third parties other than the Seller, or (iii) an accident involving the Product that is not due to the Seller, and (iv) normal wear and tear.
The warranty defined in this article is exclusive and in lieu of any other warranty; the Buyer hereby expressly waives all other express or implicit warranty relating to any defect or failure of the Product.
9 – INTELLECTUAL PROPERTY RIGHTS
The purchasing of Products by the Buyer in no way confers any right whatsoever upon the latter to reproduce all or part of the Products or to exploit any intellectual property rights relating to them. In the event a third party were to bring an action for infringement of its intellectual property rights relating to the Products delivered to the Buyer, the Seller shall either defend or settle the claim as it shall choose and at its expense. Were a final unfavorable judgement to be made against the Seller, the latter shall choose either (i) to obtain a license over the third-party rights referred to above, or (ii) to modify the Products at issue so as to avoid the infringement, or (iii) if such a solution is not possible for economic and/or technical reasons, to take back the Products delivered and refund their purchase price, less a reasonable amount in consideration of the ageing and normal wear and tear of the Product.
The above undertaking shall apply only inasmuch as the Buyer shall have informed the Seller immediately in writing of any claim for infringement involving Products delivered by the Seller and so long as the latter shall have complete control as regards management of the action and proceedings.
The Seller’s liability is expressly excluded if the alleged infringement is the result of the combination or association of the Products delivered with any other product or of any modification of all or part of the Product resulting from any procedure carried out thereon by persons other than the Seller.
Furthermore, the Seller shall not be liable for any cost or expenditure incurred without its authorization by the Buyer, or for any direct or indirect losses that might arise from any loss of use whatsoever of the Products delivered. The above provisions form the whole of the Seller’s commitments in regard to the Buyer in the event of any dispute arising over third-party intellectual property rights relating to the Products delivered by the Seller.
10 – COMPLIANCE
The Buyer acknowledges that he is acquainted with and adheres to Legrand’s sustainable development and business ethics requirements, as set out in the Charter of Fundamental Principles, in the Guide to Good Business Practices and in the Charter for Fair Competition, which is available on the Legrand Group’s Website – http://www.legrandgroup.com/EN/
The Buyer undertakes to comply with the Legrand Group sustainable development policy especially regarding environmental protection, compliance with social and labour applicable rules and policies, occupational health and safety of its employees, ethical conduct in business relationship and more specifically prevention of corruption and compliance with competition rules.
In terms of prevention of corruption, Legrand expects the Buyer to reject corruption in all its forms, whether public and private, active or passive. To this end, the Buyer undertakes to comply with all applicable national and international laws and regulations relating to the prevention of corruption of each country he is established in and/or he operates in.
In terms of competition law, Legrand expects the Buyer to reject every unfair or anti-competitive practice and to demonstrate a law-abiding behaviour towards its competitors, its customers and its suppliers. To this end, the Buyer undertakes to comply with all
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applicable national and international laws and regulations relating to fair competition of each country he is established in and/or he operates in.
The Buyer undertakes to observe and to implement within its group principles of good business practices equivalent to those described in the Fair competition Charter of the Legrand Group especially concerning prohibited vertical agreements, abuse of market power or exchanging of privileged information with competitors.
The Buyer undertakes to comply with all laws and regulations on embargoes, economic, commercial or financial sanctions or restrictive measures applied by France, the United States, the European Union or any other applicable national legislation (“embargoes”) and to obtain all licenses, shipping documents and authorizations required for the resale, export or re-export of Legrand Group products.
Accordingly, the Buyer agrees not to:
– export or re-export the Products to a country which is prohibited or subject to restrictions, without having obtained all necessary authorizations from the French, European or American authorities or those of any other country that imposes restrictions;
– supply the Products to persons, organizations or entities subject to restrictions by France, the European Union or any other country; or to persons, organizations or entities about which there are reasons to believe that they fail to comply fully with the national or international regulations in force;
– export or re-export the Products for the purpose of using them in sectors that are prohibited or subject to restrictions by the law and embargo regulations;
– issue or collect any financial flows without having previously notified and/or obtained the necessary authorizations from the competent authorities.
The Buyer is responsible for obtaining all authorizations or licenses as required by the export regulations and guarantees to hold the Seller not liable in regard to any recourse pertaining thereto. The Seller may suspend its obligations and the Buyer’s rights until such time as the authorizations and guarantees have been granted or for the period of such restrictions or prohibitions. In all events, the Seller shall be able to cancel the Order without thereby giving rise to any liability whatsoever with regard to the Buyer or end-user.
11 – CONFIDENTIALITY
Unless otherwise stipulated on the Order, all design study documents, data and information disclosed by the Seller to the Buyer or of which it becomes aware in the course of carrying out the Order, shall remain the Seller’s property.
All the documents referred to above and those supplied by the Seller during the consultation or in the course of carrying out the Order must be treated as confidential and may not be disclosed to any persons other than those qualified to have knowledge thereof.
In addition, the Buyer undertakes not to disclose any confidential information issued by the Seller of which it might become aware in the course of carrying out the Order.
12 – LIABILITY
In no event shall the Seller be liable towards the Buyer, its employees, agents, heirs, assigns and successors in interest for any indirect losses, tangible or intangible damage of any nature whatsoever including, without limitation, all losses, costs, damage, loss of income or profit borne by the Buyer or any third party whomsoever, arising from a defect or a loss of use of the Product or of any of its components or of any property whatsoever, regardless of the reason.
The Seller’s total cumulative liability for any reason whatsoever, either based on the non-completion of any Order or on any other type of liability (negligence, strict liability or other) or in respect of any warranty whatsoever, shall in no case exceed the amount of the payments received in respect of the said Order.
13 – GOVERNING LAW – SETTLEMENT OF DISPUTES
Any disputes between the Seller and Buyer relating to the existence, validity, interpretation, performance or termination of any Order (or any one of its clauses) which the Seller and Buyer are unable to resolve amicably by the end of a month, shall solely be put to competent courts and tribunals of Makati City, Metro Manila, the Philippines. The Order shall be governed by the laws and regulations of The Philippines