General Terms and Conditions of Purchase

          Revised January 2018

CLAUSE TITLE AND NUMBER

GENERAL PROVISIONS

 

DEFINITIONS

1

ANTI-HUMAN TRAFFICKING

12

SELLER'S OBLIGATIONS

2

SUSPECT/COUNTERFEIT PARTS

13

ORDER OF PRECEDENCE

3

CONFLICT MINERALS

14

PRICE OF THE GOODS AND SERVICES

4

COMPLIANCE WITH LAWS

15

DELIVERY

5

SUPPLIER STANDARDS OF BUSINESS CONDUCT

16

PAYMENT

6

NOTIFICATION OF STATUS CHANGE

17

RISK AND PROPERTY

7

RESPONSE TO AUDIT

18

WARRANTIES AND LIABILITY

8

GENERAL

19

TERMINATION

9

SPECIFICATIONS AND INTELLECTUAL PROPERTY

20

PROHIBITED ACTIVITIES

10

CONFIDENTIALITY AND DATA PROTECTION

21

EXPORT AND IMPORT COMPLIANCE

11

 

 

 

 

                1.     DEFINITIONS

1.1   In these Conditions:

"Conditions" means these standard terms and conditions of purchase;

"Contract" means this Contract comprising the Order, the Conditions and any Specification or Special Terms for the purchase of the Goods and/or the supply of Services;

Day” means calendar day;

"Delivery Address" means the address stated on the Order;

Developed IPR” will have the meaning attributed to it in Clause 20.3;

"Goods" means the goods (including any instalment of the goods or any part of them) described in the Order;

"Intellectual Property" means (i) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future;

"Order" means the Buyer's purchase order for the Goods and Services;

"Price" means the price of the Goods and/or the charge for the Services set out in the Order;

"Seller" means the legal entity that is supplying the Goods or Services;

"Services" means the service (if any) described in the Order and includes any deliverables provided as part of the Services;

"Special Terms" means any special terms agreed between the parties and which are appended to or incorporated in the Order, or to which these Conditions are appended; and

"Specification" means any plans, drawings, data or other information relating to the Goods or Services appended to or incorporated in the Order.

1.2   The headings in these Conditions are for convenience only and will not affect their interpretation.

1.3   A person includes a corporate or unincorporated body, words in the singular include the plural and in the plural include the singular and references to one gender includes a reference to the other gender.

1.4   Writing or written includes faxes and e-mails.

2.     SELLERS OBLIGATIONS

2.1   The Seller will comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services, including any regulations for goods classified as hazardous (including the Waste Electrical and Electronic Equipment Directive (2012/19/EU), REACH EC 1907/2006 and the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive (Directive 2011/65/EU), and will inform the Buyer of any need for the Buyer to comply with such regulations or requirements in relation to the receipt and onward supply of the Goods and Services and where applicable will provide the Buyer with all necessary information to enable compliance (including any material safety data sheets that exist for any product or compound supplied as a free standing compound within the Goods).

2.2   The Seller will not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and the Seller will provide the Buyer with all facilities reasonably required for inspection and testing.  Any such inspection will not relieve the Seller of its obligations under this Contract nor imply acceptance by the Buyer.

2.3   If as a result of inspection or testing the Buyer is not satisfied that the Goods comply in all respects with the Contract, and the Buyer so informs the Seller within seven (7) Days of inspection or testing, the Seller will promptly take such steps as are necessary to ensure compliance.  The Buyer may conduct further inspections and tests after the Seller has carried out such steps necessary to ensure compliance.

2.4   The Goods will be marked in accordance with the Buyer's instructions and any applicable regulations or requirements of the carrier, and properly packed and secured suitable for onward sea and/or air freight so as to reach their destination in an undamaged condition in the ordinary course.  For the avoidance of doubt, all drums, containers and other packaging will be non‑returnable unless otherwise agreed in writing.

2.5   All Orders are placed by the Buyer on condition that spare parts and identical replacements for the Goods supplied by the Seller will be available to the Buyer at a fair and reasonable price for a period of ten (10) years from the date of the Order and that prior to the Goods or spare parts thereof being made obsolete at least twelve (12) months' written notice will be given by the Seller.

2.6   The Seller must advise the Buyer in writing of all the proposed changes in the Specification or method of construction and assembly of the Goods supplied including but not limited to changes in form, fit or function, service life, reliability, maintainability, interchangeability or safety.  In the event of the Buyer accepting the changes written approval will be provided to the Seller.  For the avoidance of doubt, this shall not affect the Buyer's rights of inspection under this Section 3 or imply any acceptance by the Buyer.

3.     ORDER OF PRECEDENCE

3.1   The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the Services subject to these Conditions.  The Order shall be deemed to be accepted on the earlier of the Seller issuing a written acceptance of the Order or the Seller doing any act consistent with fulfilling the Order, at which point the Contract will come into existence.

3.2   In the case of any conflict or ambiguity between any provisions contained in these Conditions, the Order or any Special Terms which have been agreed between the parties, the order of precedence shall be as follows:

3.2.1        the Special Terms;

3.2.2        the Order;

3.2.3        these Conditions.

3.3   These Conditions will apply to this Contract to the exclusion of any other terms and conditions which have been given to the Buyer or subject to which the Order is purported to be accepted by the Seller.  The Seller waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Seller.

4.     PRICE OF THE GOODS AND SERVICES

4.1   Unless otherwise stated in the Order, the Price for Goods will be:  (a) exclusive of any applicable value added or other sales tax (which will be payable by the Buyer subject to receipt of a VAT or other sales invoice); and (b) be inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods DDP to the Delivery Address (Incoterms 2010) and any duties, imposts or levies other than value added tax.  Prices for Services will be as set out in the Order.

4.2   No increase in the Price or extra charges may be made (whether on account of material, labour, or transport costs, fluctuations in rates of exchange or otherwise) without the prior consent of the Buyer in writing.

4.3   The Buyer will be entitled to, and afforded, any discount for prompt payment, bulk purchase, or volume of purchase customarily granted by the Seller, whether or not shown on the Order.

5.     DELIVERY

5.1   The Goods will be delivered to, and the Services will be performed at, the Delivery Address on the date or within the period stated in the Order, in each case during the Buyer’s usual business hours.

5.2   The Buyer will, without penalty, be entitled to delay or reschedule the date or period of delivery stated in the Order by giving not less than seven (7) Days’ notice to the Seller, specifying the revised date or period for delivery of the Goods or performance of the Services.

5.3   Where the date of delivery of the Goods, or performance of the Services, is to be specified after the placing of the Order, the Seller will give the Buyer reasonable notice of the specified date.

5.4   The time of delivery of the Goods and of performance of the Services is of the essence of this Contract.

5.5   Subject to the exercise by the Buyer of the provisions of Clause 5.2, if the Goods are not delivered or the Services are not performed on the due date or within the specified period then the Buyer will be entitled to deduct from the Price or (if the Buyer has paid the Price) to claim from the Seller by way of liquidated damages for delay, nought point one percent (0.1%) of the Price for every Day of delay up to a maximum of ten percent (10%) of the Price, at which time the Buyer will be entitled, without penalty, to terminate this Contract with immediate effect on notice to the Seller.  The provisions of this Clause 5.5 will be without prejudice to any other remedy of the Buyer, including the right to recover from the Seller any loss or damage incurred by the Buyer in excess of the amount of liquidated damages paid by the Seller.

5.6   If the Goods are to be delivered, or the Services are to be performed by instalments, the Contract will be treated as a single contract and not severable.

5.7   The Buyer will be entitled to reject any Goods delivered which are not in accordance with this Contract and the Buyer will not be deemed to have accepted any Goods until the Buyer has had a reasonable time, in no event less than thirty (30) Days, to inspect them following delivery, or in the case of a latent defect in the Goods until a reasonable time after the latent defect has become apparent.

5.8   The Seller will supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods and performance of the Services.

5.9   This Section 6 shall apply to any repaired or replacement Goods supplied by the Seller.

5.10 The Buyer's rights and remedies under this Section 6 are in addition to its rights and remedies implied by statute and common law.

6.     PAYMENT

6.1   The Seller will be entitled to invoice the Buyer on, or any time after, delivery of the Goods or performance of the Services, as the case may be, and each invoice will quote the number of the Order.

6.2   Unless otherwise agreed in writing, the Buyer will pay the price of the Goods and the Services within sixty (60) Days after the end of the month of receipt by the Buyer of a properly constituted invoice or if later, after acceptance of the Goods or Services by the Buyer.  No payments will be made until the Goods and Services have been accepted.

6.3   Payment may be delayed if the Seller fails to:  (a) supply the required documentation quoting the relevant Order number, or (b) send a monthly statement of account quoting the invoice numbers applicable to each item, but the Buyer will remain entitled to all prompt payment discounts.

6.4   If following receipt of any invoice the Buyer notifies the Seller in writing of a bona fide dispute concerning the Price payable under such invoice, the Buyer will pay any undisputed amount but will be entitled to withhold the amount in dispute pending resolution in accordance with Clause 19.6.  The Seller's obligations to provide the Goods and Services shall in no way be affected by any such dispute.

6.5   The Buyer will be entitled to set off against the Price any sums owed to the Buyer by the Seller under this Contract or any other contract between the parties.

6.6   Any sums not paid to the Seller by the Buyer on the due date will be subject to an interest charge to the Buyer at the rate of two per cent (2%) above the Base Rate of Barclays Bank PLC compounded monthly on all amounts overdue until payment is made.

7.     RISK AND PROPERTY

7.1   Risk of damage to or loss of the Goods will pass to the Buyer upon delivery to the Buyer at the Delivery Address in accordance with this Contract.

7.2   Title in the Goods will pass to the Buyer upon delivery.  Notwithstanding Clauses 5.7 and 6.2, if the Buyer agrees to make payment (in part or in full) for the Goods prior to delivery, title will pass to the Buyer once payment has been made for such Goods or the Goods (including all materials which the Seller acquires or allocates for incorporation in any of the Goods) have been appropriated to the Contract, but such payment shall not constitute acceptance of the Goods.

8.    WARRANTIES & LIABILITIES

8.1   The Seller warrants to the Buyer that the Goods will be:  (a) new and of best quality and be fit for the purposes held out by the Seller or made known to the Seller in writing at the time the Order was placed; (b) free from defects in design, material and workmanship; (c) free from any export licence restrictions or regulations; (d) correspond with any relevant Specification or sample or the Special Terms; and (e) in compliance with all applicable statutory requirements and regulations relating to the sale of the Goods.

8.2   The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, performed with due skill, care and diligence and to such a high standard of quality as it is reasonable for the Buyer to expect in all the circumstances in accordance with any Special Terms and in compliance with all applicable statutory requirements and regulations concerning the performance of the Services and with all applicable policies of the Buyer where Services are carried out at the Delivery Address.

8.3   Without prejudice to any other remedy available to the Buyer, if the Goods or Services are not supplied or performed in accordance with this Contract, then the Buyer will be entitled:  (a) to require the Seller, at the Seller’s expense to repair or supply replacement Goods or re-perform the Services as the case may be in accordance with this Contract within seven (7) Days of notification; or (b) at the Buyer’s sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods or re-perform the Services, to treat this Contract as discharged by the Seller’s breach and require the repayment of the Price (or any part thereof) which has been paid by the Buyer in respect of such rejected Goods and Services.

8.4   The risk in any rejected Goods will revert to the Seller with effect from the date of the Buyer’s rejection notice but the title in the Goods will only revert to the Seller once the Seller has complied with its obligations under Clause 8.3.

8.5   The Seller will indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred by the Buyer as a result of or in connection with:  (a) breach of any warranty given by the Seller in relation to the Goods or the Services; (b) any loss of or damage to property including the property of the Buyer and any personal injury or death caused in whole or in part by the neglect, act or omission of the Seller, its employees or agents; (c) any act or omission of the Seller or its employees, agents or sub-contractors in manufacturing, supplying, delivering and installing the Goods or carrying out the Services; and (d) any act or omission of any of the Seller's personnel in connection with the performance of the Services.

8.6   Nothing in this Contract will exclude or limit the liability of either party to the other party for (a) death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud, wilful acts of default or misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) any damage to the tangible property of a party; (d) breach of the provisions set out in Clause 10.1; (e) pursuant to any indemnity given by a party; or (f) any other liability that cannot be excluded or limited by applicable law.

8.7   The Seller warrants that it will not solicit the Buyer's staff for employment during the period of fulfilment of the Contract or for a period one (1) year thereafter.

8.8   Subject to the foregoing, the Buyer’s liability under this Contract will be limited to the Price.

8.9   This Section 8 shall survive termination of the Contract.

9.     TERMINATION

9.1   The Buyer will be entitled to cancel the Order in respect of all or part of the Goods and/or the Services by giving notice to the Seller at any time prior to delivery of the Goods or performance of the Services, in which event the Buyer’s sole liability will be to pay the Seller its documented, reasonable and unavoidable out-of-pocket costs, less the disposal value of any Goods resulting from such cancellation, subject always to Buyer's receipt of notice thereof and a detailed invoice therefore being presented within thirty (30) Days of such cancellation.

9.2   The Buyer will be entitled to terminate this Contract without liability to the Seller by giving notice to the Seller at any time if:  (a) the Seller commits any material breach of any of the terms of the Contract (which for the avoidance of doubt, shall automatically include a breach of Clauses 10.1 or 15); or (b) the Seller makes any voluntary arrangement with its creditors (within the meaning of the insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), is unable to pay its debts as they become due, suffers any act of bankruptcy, any resolution or petition to wind up the Seller is passed or a third party seizes or threatens to seize the Goods and/or Services before legal ownership has passed to the Buyer in accordance with this Contract, an encumbrancer takes possession, or a receiver is appointed of any of the property or assets of the Seller, it ceases or threatens to cease to carry on business or any circumstance arises or event occurs in relation to the Seller or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this sub-Clause 9.2(b).

9.3   The Seller may terminate the supply of any Goods or the performance of any Services under the Contract, in whole or in part, at any time by giving at least ninety (90) Days' notice to the Buyer in writing.  The Seller will thereupon reimburse any sums paid by the Buyer to the Seller in respect of the relevant Goods and/or Services plus any unavoidable costs arising from such termination including any increased costs in procuring the Goods and/or Services from an alternative supplier.

9.3   Upon the expiration or termination of this Contract for whatever reason, each party will return to the other party all material and information received in the performance of the Contract relating to the other party and its business connections, other than normal correspondence, letters, orders and the like.

9.4   The termination or expiry of this Contract will not prejudice or affect any right of action or remedy which will have accrued or will thereafter accrue to either party.

10.   PROHIBITED ACTIVITIES

10.1 Anti-Corruption Compliance:  The Seller represents, warrants and covenants that:

10.1.1      It has not and will not, directly or indirectly, pay, promise, offer, or authorise the payment of any money or anything of value to:

(a)    an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;

(b)   a candidate for political office, any political party or any official of a political party; or

(c)    any other person or entity;

while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting the Buyer in obtaining or retaining business (including this Contract), or an improper business advantage.  Without limiting the generality of the foregoing, the Seller shall not directly or indirectly, pay, promise, offer, or authorise the payment of any facilitation payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of the Buyer.

10.1.2      No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature have been or will be accepted or made in connection with this Contract where the intent was, or is, to unlawfully influence the recipient of the gratuity.  The Seller also represents that any gratuities offered or provided shall meet the following conditions:

(a)    be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Contract will be performed;

(b)   be consistent with applicable social and ethical standards and accepted business practices;

(c)    be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and

(d)   be of such nature that its disclosure will not cause embarrassment for the Buyer.

10.1.3      Breach of any of the foregoing provisions of Clauses 10.1.1 and 10.1.2 by the Seller shall be considered an irreparable material breach of this Contract and shall entitle the Buyer to terminate this Contract immediately without compensation to the Seller.

10.2 Prohibited Activity:  Unless specifically authorised in writing by the Buyer, the Seller shall not engage in any of the following activities on behalf of the Buyer under this Contract:  acting as an agent of the Buyer; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.

10.3 Prohibited Contact:  Unless specifically authorised in writing by the Buyer, the Seller shall not contact, either directly or indirectly, public officials of any country other than the United States of America (“USA”), United Kingdom (“UK”), Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of the Buyer under this Contract.

10.4 Delivery:  If the Seller is permitted to use terms other than DDP Delivery Address, the Seller shall provide the name and contact information for all freight forwarders, carriers or shipping agents expected to handle the Buyer’s consignment.  The Seller shall provide this information to the Buyer no later than ten (10) Days after order acceptance.  The Seller’s proposed freight forwarders, carriers or shipping agents must have a reputation for honesty and a company policy prohibiting bribes and facilitation payments intended to expedite or secure performance of routine governmental action, such as, customs clearance.  The Buyer retains the right to deny the Seller’s use of the Seller’s proposed freight forwarders, carriers or shipping agents within thirty (30) Days of the Seller’s notification.  If the Goods or Services contain any ITAR controlled information or equipment, the Seller shall ensure that the Buyer’s purchase does not transit through one of the Proscribed Countries listed in the US International Traffic in Arms Regulations (ITAR), 22 CFR 126.1.

11.   EXPORT AND IMPORT COMPLIANCE

11.1 Performance of the Order may involve the use of or access to products and technology of multiple origin, including the USA.  The Seller shall comply with all applicable export laws, rules and regulations including but not limited to those of the UK, the European Union and the USA (collectively hereinafter referred to as the “Export Laws and Regulations”).  From time to time, the United Nations, the European Union (and its Member States individually) and the USA may impose trade sanctions or embargoes involving trade with a particular nation.  The scope of the Export Laws and Regulations identified in this Clause includes such sanctions and embargoes.  The Seller shall comply with any and all Export Laws and Regulations, and any license(s) issued there under.  The Seller is responsible for obtaining at its cost (unless otherwise stated in the Order or Special Terms) all export authorisation(s) required to provide the Goods and/or Services to the Buyer.  The Seller shall not re-transfer any export-controlled information (e.g. technical data, technology or software) in performance of the Order to any other person or entity (including the Seller’s dual and/or third-country national employees) without first complying with all the requirements of the applicable Export Laws and Regulations.  Prior to any proposed re-transfer, the Seller shall first obtain the written consent of the Buyer and ensure any needed export authorisations have been obtained.

11.2 No consent granted by the Buyer in response to any Seller’s request shall relieve the Seller of its obligations to comply with the provisions of Clause 11.1 or the Export Laws and Regulations, nor shall any such consent constitute a waiver of the requirements of Clause 11.1 hereinabove, nor constitute consent for the Seller to violate any provision of the Export Laws and Regulations.

11.3 The Seller shall provide the applicable export controls information (e.g., classification on the UK Strategic Goods List, Export Control Classification Number (ECCN) under the Export Administration Regulation or ITAR categorization) for all Goods furnished and/or Services rendered by the Seller to the Buyer, except when the Seller is manufacturing to the Buyer’s Specification.  If the Goods and Services are based on the Buyer’s Specification, the Buyer will advise the Seller whether the technology and/or resulting Goods and Services are export controlled.  If the Seller is not the Original Equipment Manufacturer (OEM), the Seller shall obtain the applicable export control classification information from its source of supply.  The Seller will include the export controls information on its packing slips and shipping documentation and also provide to the Buyer at the Buyer’s request.

11.4 The Seller shall comply with all applicable customs laws and regulations pertaining to the importations of the Goods and/or Services.  For domestic purchase orders (that is, Orders issued to entities addressed in the same country as the Buyer), the Seller shall assume all import responsibilities.  Unless otherwise agreed in writing, the Buyer will not assume any import responsibility or liabilities for customs duty and other taxes for Goods and/or Services procured through a domestic purchase order.

11.5 The Seller agrees to provide prompt notification to the Buyer in the event of changes in circumstances such as ineligibility to contract with the UK or USA governments and initiation or existence of a government investigation that could affect Seller’s performance under the Order.

12.   ANTI-HUMAN TRAFFICKING

12.1 The Buyer prohibits its employees, agents, subcontractors, suppliers and contract labour from engaging in activities that support or promote trafficking in persons, including, but not limited to, any of the following, whether directly or indirectly:

12.1.1      Trafficking in persons, including, but not limited to the following:

(a)    sex trafficking; or

(b)   the recruitment, harbouring, transportation, provision, or obtaining of a person for labour or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, debt bondage, or slavery.

12.1.2      The procurement of a commercial sex act;

12.1.3      The use of forced labour in the performance of company business;

12.1.4      The use of any form of child labour;

12.1.5      The use of misleading or fraudulent recruitment activities;

12.1.6      Charging employees’ recruitment fees;

12.1.7      Failing to pay for the return transportation at the end of employment for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working;

12.1.8      Providing or arranging housing that fails to meet the host country housing and safety standards; or

12.1.9      If required, failing to provide an employment contract, recruitment agreement, or similar work document in writing, in the individual’s native language and prior to the individual departing from his or her country of origin.

12.2 The Seller represents and warrants that it shall abide by and comply with the requirements of this Clause and any relevant applicable laws or regulations.  Further, the Seller shall require its employees, agents, contract labour, subcontractors and suppliers to abide by and comply with the requirements of this Clause.

12.3 The Buyer or its authorised representatives may, at any time, audit all pertinent books, records, work sites, offices, and documentation of the Seller in order to verify compliance with this Clause.  The Seller will, in all of its lower-tier subcontracts and contracts relating to this or any other Buyer’s Order with the Seller, include provisions which secure for the Buyer all of the rights and protections provided for within this Clause.

12.4 The Seller acknowledges that if the Seller or any of its employees, agents, or contract labour engages in any of the prohibited activities in this Clause, this Order is subject to termination.

12.5 Whenever the Seller has knowledge, whether substantiated or not, that any actual or suspected violation of this Clause has occurred, the Seller shall immediately give written notice to Buyer and provide all relevant information including, but not limited to, the nature of the actual or suspected violation.

12.6 The Seller shall provide its full cooperation during any subsequent investigation of the actual or suspected violation by the Buyer, the Buyer’s representative, or regulatory authority.  Seller’s cooperation shall include, but not be limited to, permitting inspection of its work sites, offices, and documentation, as necessary to support any investigation.

12.7 The Seller shall, at its own expense, defend, indemnify and hold harmless the Buyer and its affiliates, and all of their directors, officers, agents, employees, successors and assigns, against any claims, loss, damage or expense, regardless of how arising and even if unforeseeable, including, without limitation, payment of direct, special, incidental and consequential damages and attorney’s fees, arising out of, or relating to, the Seller’s or the Seller’s employees, agents, subcontractors, suppliers or contract labour’s failure to comply with the requirements of this Clause.

12.8 The Seller agrees to insert the substance of this Clause, including this sentence, in any lower-tier subcontract or labour contract.

13.   SUSPECT/COUNTERFEIT PARTS

13.1 The Seller shall not furnish suspect counterfeit or counterfeit parts to the Buyer under this Contract.  All material delivered under this Contract shall be authentic and traceable to the original manufacturer.  The Seller shall provide authenticity and traceability records to the Buyer upon request.  The Seller shall immediately notify the Buyer if the Seller cannot provide electronic parts, components, and/or assemblies traceable to the original component manufacturer or the original equipment manufacturer.  Upon receipt of such notification, the Buyer reserves the right to terminate this Contract at no cost to the Buyer or require specific material validation test and inspection protocol requirements to the Seller.

13.2 If suspect counterfeit or counterfeit parts are furnished under this Contract and are found in any of the Goods delivered hereunder, such items will be impounded by the Buyer.  The Seller shall promptly replace such suspect/counterfeit parts with parts acceptable to the Buyer.  The Seller shall be liable for all costs relating to the removal and replacement of said parts, including, without limitation, the Buyer's external and internal costs of removing such suspect/counterfeit parts, of reinserting replacement parts and of any testing or validation necessitated by the reinstallation of the Seller's Goods after suspect/counterfeit parts have been exchanged.  The Buyer’s remedies described herein shall not be limited by any other Clause agreed upon between the Buyer and the Seller in this Contract and are in addition to any remedies the Buyer may have at law, equity or otherwise under this Contract.  At the Buyer's request, the Seller shall return any removed suspect counterfeit or counterfeit parts to the Buyer in order that the Buyer may turn such parts over to its customer for further investigation.

13.3 The Seller agrees to insert the substance of this Clause, including this sentence, in any lower tier subcontract.

14.   CONFLICT MINERALS

14.1 If the Seller is providing Goods to the Buyer under the Order, the Seller shall use commercially reasonable efforts to:

14.1.1      identify whether such Goods contain tin, tantalum, gold or tungsten;

14.1.2      determine whether any such minerals originated in covered countries, as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”); and

14.1.3      perform appropriate due diligence on its supply chain in support of the Buyer’s obligations under the Act.

14.2 In addition, the Seller shall, as soon as reasonably practicable following the completion of the calendar year, provide a completed Conflict Minerals Reporting Template, using the form found at http://www.conflictfreesourcing.org/conflict-minerals-reporting-template/.  If requested, the Seller will promptly provide information or representations that the Buyer reasonably believes are required to meet the Buyer’s conflict minerals compliance obligations.

15.   COMPLIANCE WITH LAWS

15.1 Without limiting any other obligations under these Conditions, the Seller shall ensure that, at all times in delivery of the Goods and Services, it complies with all applicable laws and regulations, and shall ensure that its employees, agents and representatives similarly comply.

15.2 The Seller shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Services or supply of any Goods, under this Contract.

15.3 The Seller shall maintain environmental, health and safety management systems as appropriate to ensure compliance with applicable laws.  The Seller further agrees to continuously promote a safe and healthy workplace and a sustainable environment related to water and air quality, water and energy conservation, greenhouse gas emission reductions, solid and hazardous waste reductions.  The Seller shall convey the requirement of this Clause to its suppliers.

16.   SUPPLIER STANDARDS OF BUSINESS CONDUCT

16.1 The Seller shall comply with the Northrop Grumman Supplier Standards of Business Conduct (available at http://www.northropgrumman.com/suppliers/OASISDocuments/NGSupplierStandardsofBusinessConduct.pdf) (the “Northrop Grumman Supplier Code”).  The Seller shall ensure that its employees are aware of their contribution to product or service conformity, their contribution to product safety, and the importance of ethical behaviour.  The Seller represents and warrants that it has not participated, and will not participate, in any conduct that violates the Northrop Grumman Supplier Code.  The Seller shall notify the Buyer if at any time the Seller becomes aware of any actual or suspected violation of the Northrop Grumman Supplier Code.  If the Buyer determines that the Seller is in violation of the Northrop Grumman Supplier Code, the Buyer may cancel the Order upon written notice to the Seller and the Buyer shall have no further obligation to the Seller.

17.   NOTIFICATION OF STATUS CHANGE

17.1 The Seller agrees to provide prompt notification to the Buyer of any event or change in circumstances that could affect the Seller’s performance of the Order such as assignment of consent agreement, change in place of performance, decrease in manufacturing capacity, diminishing manufacturing sources or material shortages, increase in production requirements, labour reductions, financial or organizational conflicts of interest, and significant financial conditions requiring any of the preceding changes.

17.2 Sellers that provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to a Buyer representative or through the Buyer’s Global Trust website shall provide the Buyer with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with the Buyer and provide additional information reasonably requested in relation to such changes.  In the event of a material change to information contained in the due diligence material supplied to the Buyer, the Buyer reserves the right to suspend performance under this Contract by providing written notice to the Seller in order for the Buyer to conduct additional anti-corruption due diligence upon such changed circumstances.

17.3 The Seller shall notify the Buyer of any proposed change in Control within thirty (30) days prior to such event.  The notice shall describe in reasonable detail the proposed transaction structure and any proposed changes to management, operations, domicile, key locations, the board of directors and/or ownership (along with a commitment to cooperate with the Buyer and provide additional information reasonably requested related to such proposed change in Control).  The Seller shall not effect a change in Control without prior, written consent from Buyer, such consent not to be unreasonably withheld.  For purposes of this Contract, “Control” means the power, directly or indirectly, to (a) vote more than fifty (50) percent of the securities that have ordinary voting power for the election of the Seller’s directors; or (b) direct, or cause the direction of, the management and policies of the Seller whether by voting power, contract, or otherwise.  If a person obtains Control by acquiring more than fifty (50) percent of the securities that have ordinary voting power for the election of the Seller’s directors, that acquisition may be accomplished by one or multiple transfers.

17.4 Failure to provide the notice under this Clause shall be deemed a material breach of this Contract.

18    RESPONSE TO AUDIT

18.1 The Buyer shall have access to and the right to examine any of the Seller's directly pertinent records involving transactions related to this Contract and to interview any current employee regarding such transactions.  This requirement may not be construed to require the Seller to create or maintain any record that the Seller does not maintain in the ordinary course of business or pursuant to a provision of law.  The Seller shall make available at its office at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until three (3) years after final payment under this Contract or for any longer period required by other Clauses of this Contract.

19.   GENERAL

19.1 Force Majeure:  Neither party will be liable to the other for any failure to comply with its obligations due to the following events: acts of God, civil or military disturbances, acts of governmental authority, or industrial action (excluding industrial action of the Seller’s employees) (each a “Force Majeure Event”).  In the event that a party suffers a Force Majeure Event it will notify the other party of such as soon as reasonably possible (and in any event within seven (7) Days) and advise the other party of the date it expects to resume delivery of the Goods or performance of the Services as the case may be.  In the event that the Force Majeure Event endures for more than sixty (60) Days, the parties will meet and review in good faith, the desirability of and conditions for continuation of the Contract and any failure to resolve the same will entitle the Buyer to terminate the Contract (in whole or in part) without further liability to the Seller.  The Buyer will have the right to seek a third party source for Services, at its own expense, during the Force Majeure Event, without liability to the Seller for any Services affected by the Force Majeure Event.

19.2 Assignment and Sub-contracting:  This Contract may not be assigned in whole or in part by either party without the prior written consent of the other party.

19.3 Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party to the other party under the Contract will be: (a) in writing in English; (b) signed by or on behalf of the sender; and (c) addressed to the other party at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice.  Notices must be delivered by at least one of the following delivery methods: hand, fax, recorded delivery post (or any equivalent postal service) or e-mail.  For notice delivered by fax or email, the delivery fax number and email addresses will be those numbers and addresses as are set out in the Order and/or the Special Terms as the case may be or as notified to the other party from time to time.  Faxes will be deemed received at the time and date shown on the successful fax transmission report and email will be deemed received at the time and date of transmission shown on the saved sent copy.  Notices delivered by hand or post shall be deemed delivered on, if delivered by hand, when left at the address referred to in part (a) of this Clause 19.3 and, if sent by post one (1) Day after receipt of such notice by the Buyer.  The provisions of this Clause 19.3 shall not apply to the service of any proceedings or other documents in any legal action.

19.4 No Waiver:  The failure by the Buyer to exercise, or its delay in exercising, a right, power or remedy provided by this Contract or by law will not constitute a waiver by the Buyer of that right, power or remedy.  If the Buyer waives a breach of any provision of this Contract this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.

19.5 Severability:  If any provision, or part of a provision, of this Contract is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable in whole or in part that provision or part-provision will be deemed not to form part of this Contract, and the legality, validity or enforceability of the remainder of the provisions of this Contract will not be affected, unless otherwise required by operation of applicable law.  The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Contract which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.

19.6 Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Contract:  (a) the Buyer or the Seller may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will meet within fourteen (14) Days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) Days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (CEDR’s) Model Mediation Procedure; (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Clause.  Arbitration will take place in London, England and the language to be used in the proceedings will be English; (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Contract will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.

19.7 Governing Law:  The Contract (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of England and Wales.  Subject to Clause 19.6, the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract (including any non-contractual disputes or claims).

19.8 Offset:  The total value of this Contract is to be applied as offset credit in support of any present or future offset obligations, in the Seller’s country, of the Buyer or its parent company or affiliates.  The Buyer will have the right to assign, sell or otherwise transfer such credits to third parties of its choice.

19.9 Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain.  The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Contract, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.  This Clause shall survive termination and the parties agree that damages alone would not be an adequate remedy in the event of breach by either party of the provisions of this Clause 19.9.

19.10Entire Agreement:  This Contract represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Contract to the exclusion of any other terms or conditions purported to apply by any other document.  Each party acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the other party which is not set out in the Contract, and waives all rights and remedies which might otherwise be available to it in relation to any such statement, promise or representation, but for this Clause 19.10.  Nothing in this Contract will exclude or limit either party’s liability for fraud or fraudulent misrepresentation.

19.11Independent Contractors:  Nothing in this Contract will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.

19.12Publicity:  Neither of the parties to this Contract will make public in any way any details of this Contract without the written agreement of the other party.

19.13Third Parties:  The Contract is enforceable by the original parties only and no other persons will have any rights either under the Contracts (Right of Third Parties) Act 1999 or otherwise to enforce any term of this Contract.  The term "original parties" will include the Buyer’s parent company and any associated subsidiaries within or affiliated branches of the Northrop Grumman group.

19.14Amendments:  No alterations or amendments to this Contract will be effective unless contained in a written document signed by the authorised representatives of each of the parties.

19.15Survival:  Any terms of this Contract which are either expressed so as to survive (or are capable of surviving) expiry, variation or termination of this Contract or from their nature or context it is contemplated that they are to survive expiry, variation or termination, will remain in full force and effect notwithstanding expiry, variation or termination.

20.   SPECIFICATIONS AND INTELLECTUAL PROPERTY

20.1 The quantity, quality and description of the Goods and the Services will be subject to these Conditions and will be as specified in the Order and/or in any applicable Specification or Special Terms supplied by the Buyer to the Seller or agreed in writing by the Buyer.

20.2 Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with this Contract, together with any Intellectual Property in such Specification(s), will be the exclusive property of the Buyer and the Seller will take all steps necessary to vest such rights in or to Intellectual Property in the Buyer.  The Seller will not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of this Contract.

20.3 If in the course of rendering any Services any employee of the Seller or its personnel develops, either individually or in conjunction with any other person, any Intellectual Property (“Developed IPR”) the Seller will, and will procure that each of its employees, agents and subcontractors (and any employee or agent of any subcontractor) will, promptly disclose full details thereof to the Buyer and all rights in the same will vest in the Buyer.  The Seller:  (a) hereby assigns to the Buyer, by way of present and future assignment, all its rights, title and interest in any Developed IPR so arising (whether now existing or brought into being in the future) anywhere in the world; and (b) will consider itself as a trustee for the Buyer in relation to all Developed IPR and will at the request and expense of the Buyer do all things necessary to vest all rights, title and interest in any Developed IPR arising in the Buyer or its nominee absolutely as legal and beneficial owner and to secure patent or other appropriate forms of protection for such Developed IPR, including procuring that any employee, agent or subcontractor (or any employee or agent of any subcontractor) will assign all their rights, title and interest in any Developed IPR.

20.4 This Contract does not confer or grant, in any manner whatsoever, any license or right under any Intellectual Property held by the Seller, unless specifically set forth in this Contract.

20.5 The Seller shall indemnify the Buyer against liability and losses, including costs, for actual or alleged infringement of any Intellectual Property arising out of the manufacture or delivery of the Goods or performance of the Services under this Contract or out of the use or disposal by the Buyer of such Goods or Services.  This indemnity shall not apply unless the Seller shall have been informed as soon as practicable by the Buyer of the suit or action or other proceeding alleging such infringement and shall have been given such opportunity as is afforded by applicable laws, rules or regulations to participate in the defence thereof.

20.6 The indemnity in Clause 20.5 shall also not apply if:  (a) the infringement results from compliance with specific written instructions of the Buyer directing a change in the Goods or Services to be delivered or in the materials or equipment to be used, or directing a manner of performance of this Contract not normally used by the Seller, or (b) the infringement results from an addition to, or change in, the Goods or Services made subsequent to delivery or performance by the Seller, or (c) the claimed infringement is settled without the consent of the Seller, unless required by final decree of a court of competent jurisdiction.

21.   CONFIDENTIALITY AND DATA PROTECTION

21.1 For the purpose of this Contract, “Controller”, “Processor”, “Personal Data”, “Data Subject”, “Processing” and “Personal Data Breach” shall have the meanings ascribed to them in the EU General Data Protection Regulation.

21.2 The Seller shall ensure, where it Processes Personal Data as a Processor under this Contract, that:

21.2.1      It Processes Personal Data only on the Buyer’s documented instructions (including with regard to any transfer of Personal Data to a third country or an international organization), unless the Seller is required to Process Personal Data by European Union (“EU”) law or EU Member State law to which the Seller is subject.  In such a case, the Seller shall inform the Buyer of that legal requirement before Processing Personal Data, unless that law prohibits such information on important grounds of public interest;

21.2.2   It immediately informs the Buyer if, in the Seller’s opinion, an instruction infringes applicable data protection provisions;

21.2.3      It ensures that persons authorized to Process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

21.2.4      It implements technical and organizational measures to ensure a level of security appropriate to the risks presented by the Processing of Personal Data which the Seller shall complete in the format set out in the Annex below and include as part of the Specification, including inter alia, as appropriate:

                      - The pseudonymisation and encryption of Personal Data;
                      - The ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
                      - The ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
                      - A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the
                         processing.

21.2.5      Taking into account the nature of the Processing of Personal Data, it assists the Buyer, by appropriate technical and organizational measures, insofar as this is possible, in fulfilling the Buyer’s obligation to respond to requests for exercising Data Subjects’ rights;

21.2.6      It assists the Buyer in ensuring compliance with the Buyer’s obligations regarding security of Processing, notifications of a Personal Data Breach to the supervisory authority and to the data subject, and data protection impact assessments;

21.2.7      At the Buyer’s choice, it deletes or returns all Personal Data to the Buyer after the end of the provision of the services relating to the Processing, and deletes existing copies, unless EU law or the law of EU Member State to which the Seller is subject requires storage of Personal Data; and

21.2.8      It makes available to the Buyer all information necessary to demonstrate compliance and allow for and contribute to audits, including inspections, conducted by the Buyer or another auditor mandated by the Buyer.

21.3 The Buyer agrees that the Seller may subcontract any of the Processing operations performed on behalf of the Buyer under this Contract.  Where the Seller engages another Processor for carrying out specific Processing activities on behalf of the Buyer, the Seller shall ensure that such Processor has entered into a written agreement that imposes the same data protection obligations as set out in this Clause.  Where the Processor fails to fulfil its data protection obligations, the Seller shall remain fully liable to the Buyer for the performance of that other Processor’s obligations.

 

****

Annex – Data Processing Description

The information below shall be included in the Order:

  • Subject-matter and duration of the Processing:
  • Nature and purposes of the Processing:
  • Types of Personal Data
  • Data Subjects

 

Find all Terms & Conditions of Sales and Service for all contracts with Northrop Grumman Sperry Marine’s offices based in:


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> Europe
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Asia - Terms & Conditions for Sales and Service

NORTHROP GRUMMAN SPERRY MARINE ASIA INC., HONG KONG BRANCH
General Terms & Conditions of Sale & Service Work Effective from 1st April 2014 NGSM Asia Inc./GTS Rev. 1
 

Sales and Purchases

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine Asia Inc., Hong Kong Branch. “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods (“Products”) and/or services (“Service Work”) to Buyer as they are described in the offer or in the order acceptance.

1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine and to all engagements of Sperry Marine for the sale and supply of Products by Sperry Marine and to all Service Work and the words “this Agreement” herein shall apply to all such agreements based on these terms.

1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing.

1.4    An agreement is effected at the moment when Sperry Marine has accepted the order in writing.

1.5    In each case the Agreement is concluded under the condition precedent that Buyer is creditworthy, as is to be determined by Sperry Marine in its exclusive discretion.
 

Offers, Contents of the Agreement

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at all times. Offers of which Sperry Marine has not received a written acceptance within 60 days after the relevant date shall be cancelled automatically. Orders placed by buyer are only accepted by Sperry Marine in written format.

2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by an authorized representative of Sperry Marine in writing.

2.3    Samples or models of Products shown or provided shall only serve the purpose of supplying information, which the product sold need not comply with in all details.

2.4    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Product in form, fit or function.
 

Prices

3.1    Unless otherwise expressly agreed upon in writing, prices shall apply as they have been published by Sperry Marine at the moment of delivery of the Products.

3.2    All prices quoted in offers and order acceptances are based on delivery FCA (Incoterms 2010), and exclusive of any other taxes and charges in effect at the date of quotation and applicable to the Products. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to Buyer and added to the invoice.

3.3    If at the request of Buyer changes in or supplements to the Agreement are executed, the price will be increased in accordance with the Sperry Marine hourly rates and product list prices then in effect at the moment of execution.   

3.4    The minimum order value which is applicable to all sales of products, spare parts and services, is      HK $ 2,500.00 (HK$ TWO THOUSAN FIVE HUNDRED). In the event that an order does not reach this amount, Sperry Marine in its sole discretion is entitled to invoice the difference as an additional lumpsum to reach the minimum order value.
 

Delivery and Transport

4.1    Times of delivery are invariably stated as approximations, even if this has not been mentioned explicitly, and are deemed to commence at the date on which Sperry Marine has accepted the order of Buyer, or where required the date an export license is granted, or at such later date as provided hereafter in this article. The dates of dispatch are deemed to have been based on immediate receipt of all the information to be provided by Buyer necessary for Sperry Marine to process the order and, in the event of export dispatches, they also depend on receipt of all required official export documents and licenses required. Sperry Marine will endeavor to comply with the stated time of delivery. Buyer shall be obliged to accept delivery of shipments, immediately upon being notified of such by Sperry Marine. If the time of delivery which has been stated as an approximation is inordinately exceeded in relation to all or a portion of the order, Buyer shall be entitled to terminate that portion of the Agreement affected by the delay.
Buyer cannot, however, exercise this right prior to first consulting with Sperry Marine. Sperry Marine shall not be liable for damages of any nature or kind, including indirect, liquidated or consequential damages in the event the Agreement is so terminated.

4.2    Unless otherwise agreed upon, all deliveries are FCA (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.

4.3    Any costs incurred by Sperry Marine (including storage costs) ensuing from delay on the part of Buyer in accepting delivery or in his compliance with the requirements of article 6, shall be paid by Buyer.

4.4    Sperry Marine is entitled to make partial deliveries and in that case Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefore.
 

Cancellation

5.1     Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion. In the event of such a cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:

(a)    the contract price for any completed work not already paid ; and
(b)     all costs incurred by Sperry Marine in performance of the order and allocable thereto including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work under (a); and
(c)     to the extent not already included under (a), a sum for lost profits equal to 15% of the contract price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)     to the extent not already covered by (a) and (b), an amount equal to the costs of settling and paying any claims arising out of the cancelling of work under any subcontracts or purchase orders.

5.2    Without prejudice to any other right or remedy which Sperry Marine may have, in the event that Buyer cancels the order without the prior written consent of Sperry Marine, Sperry Marine shall be entitled to compensation for all loss or damage thereby incurred, including any loss of profit, or to demand specific performance.
 

Inspection and Service

6.1    During the warranty period referred to in article 10, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products.

6.2    If Buyer should request an inspection of the Products by Sperry Marine or its authorized service representatives, either during the warranty period or after expiry thereof, or if Buyer should request repairs, “Service Work” which Sperry Marine is not obliged to execute pursuant to its obligations by virtue of article 10, this inspection or Service Work, if agreed upon by Sperry Marine, will be executed at the hourly rate applicable to the district from which the service personnel travels. In addition, Sperry Marine may charge for the actual travelling and accommodation expenses of such personnel, and for their travelling time at the rates applicable, as defined above. If Service Work is required outside regular working hours, Buyer shall pay these extra hours at the hourly rate for overtime applicable in the district of the Sperry Marine service personnel provided.

6.3    Publications in which Sperry Marine has indicated in which places service stations are to be found are for information purposes only and Sperry Marine is not liable to retain such service stations.
 

Terms of Payment

7.1    Unless expressly otherwise agreed upon in writing, full payment in the invoiced currency shall be made by Buyer not later than within 30 days after the invoice  (or billing for orders based in Hong Kong)  date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount. All costs incurred in connection with payment of the invoice (or billing for orders based in Hong Kong) shall be at the expense of Buyer. Buyer may only submit a written notice of objection against the invoice (or billing for orders based in Hong Kong) within the term set out therein.

7.2    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of 30 days. From such moment, Buyer shall owe interest at 1.5% a month compounded on the amount still outstanding. For the calculation of the amount payable due to interest parts of months shall apply as whole months. All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.

7.3    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

7.4    If Buyer:

(a)    fails to comply with any obligation towards Sperry Marine pursuant to the Agreement; and/or
(b)    is unable to pay its debts, has a petition for bankruptcy filed against it, has a petition filed against it (or passes a resolution) for its winding up or for the appointment of an administrator or a receiver or applies for or is granted a payment moratorium or any similar events occur within the jurisdiction to which Buyer is subject; and/or
(c)    suffers any substantial change in his financial or business situation, Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand. In this event, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer. Buyer shall be liable for all damages suffered by Sperry Marine as a result of such termination.

Retention of Title

8.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has complied with all its obligations under the Agreement including but not limited to:

(a)    payment in full of the price for the Products;
(b)     payment for any work performed on or in relation to the Products pursuant to the Agreement; and
(c)    payment of any claims against Buyer by Sperry Marine arising out of failure on the part of Buyer to comply with one or more of his obligations ensuing under any sales agreements with Sperry Marine.

8.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them. Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. The Products shall be held separate from Buyer’s own goods and clearly marked as Sperry Marine’s property.

8.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the goods on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products. Buyer is obliged to co-operate with Sperry Marine for this purpose.

8.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine, as well as of Buyer’s bankruptcy or moratorium, or of an attachment. Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

8.5    Sperry Marine may request such financial information respecting the Buyer’s ability to pay for Product or Service Work as in its discretion it deems necessary. Failure to provide such information within fifteen (15) days of a written request shall entitle Sperry Marine to enter upon the Buyer’s premises or premises where the Products are held and take possession of them.
 

Complaints and Buyer’s obligation to inspect products

9.1    Buyer is obliged to inspect the Products carefully after delivery and to inform Sperry Marine of any discoverable defects. Any complaints with respect to the Products shall be notified to Sperry Marine in writing within 10 days after delivery of the Products. If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, the complaint must be notified in writing within 8 days after the date on which the defect was discovered or could reasonably have been discovered, but in no event shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.

9.2    After expiry of the dates mentioned in paragraph 9.1 Buyer is deemed to have accepted the Products and Products can no longer be rejected.

Warranty

10.1    Sperry Marine warrants that all Products manufactured by Sperry Marine or its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when installed in accordance with the applicable Sperry Marine installation drawing, and Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or any authorised service representative of Sperry Marine.

10.2    Unless otherwise stated, or any other compulsory warranty period required by the  regulations of Singapore in the event of contract dispute, for all Products sold as new, Sperry Marine’s obligation under the warranty shall be limited to defects as defined in article 10.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.3    For Service Work (except where performed under warranty) the warranty period shall be thirty (30) days from the date of performance and completion of the Service Work. The warranty period for new spare parts shall be twelve (12) months after date of installation or shipment, whichever period shall first expire. The warranty for reconditioned items or items not sold as new shall be for a period of ninety (90) days after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.4    In case of Products sold but not manufactured by Sperry Marine or its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be to extend to Buyer the manufacturer’s warranty, provided that Buyer complies with all applicable conditions of such warranty.

10.5    Sperry Marine’s warranty obligations shall in any event be limited to the replacement or repair (at Sperry Marine’s discretion) of any defective part. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine’s expense at any city, town or port at which Sperry Marine regularly maintains qualified service personnel. The publishing of a list of service stations shall not imply any obligation upon Sperry Marine to maintain a regularly established service station on any of the locations specified in such list.

10.6    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair. Where Sperry Marine sends an engineer to the service location to effect the warranty repair, Buyer shall pay all travel expenses of the Sperry Marine engineer and Buyer shall pay the hourly rate for the engineer for any travel time in excess of a total of 4 hours round trip.

10.7    Defective Product or parts which are replaced under warranty shall be returned by Buyer at Buyer’s cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the replacement has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine. Where the defective Product or parts are not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine the full list price of the relevant Product or part and Sperry Marine shall invoice Buyer accordingly.

10.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station.

10.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge. Damages or failure of any product supplied by Sperry Marine caused due to incorrect set up or use is not covered under Sperry Marine’s warranty terms.
No warranty shall be effective if a defective product has been repaired or in any way worked on by anyone other than Sperry Marine personnel or an authorized Sperry Marine agent without Sperry Marine’s prior consent.

10.10 In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in article 10.1, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.11 For the avoidance of doubt, the warranty set out in these terms includes any software installed as standard within the Product and which is required for its proper operation. The warranty therefore covers the remedy of defects in the software only where this materially affects the use of the Product, and where the defects can be reproduced at any time. Updates of software to newer versions in case of obsolescence may be provided free of charge at Sperry Marine’s discretion. Software upgrades resulting in an enhancement of the system’s capabilities are not covered under warranty, and the cost of labour and material for any such upgrades where requested by Buyer and agreed to by Sperry Marine shall be paid by the Buyer.
Sperry Marine shall not be liable nor shall Sperry Marine provide any warranty for software, interfaces, etc. made available to the Buyer by Sperry Marine but produced by other manufacturers. Where possible warranty rights against a manufacturer concerned shall be transferred by Sperry Marine to the Buyer.

Sperry Marine does not warrant that the software will function without interruption or error, that all software defects can be eliminated and that the software will correspond to the Buyer’s requirements and will function without error in each configuration the Buyer selects, unless such configuration has been specified by Sperry Marine.
Sperry Marine accepts no liability hereunder for claims for loss of data and it is strongly recommended that the Buyer perform a data backup in a machine readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to better enable the restoration of data.

10.12 The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Product, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above. All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.

Return of exchanged Products or parts

11.1    Where Sperry Marine agrees to receive used or defective equipment in return for a reduction in the price of a product or part, such as under Sperry Marine’s Spares Exchange (SPEX) scheme, Buyer shall ensure that the returned equipment is delivered at Buyer’s cost to Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the Product has been installed and the respective commissioning report has been signed.

Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.

11.2    Where the used or defective equipment is not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine a surcharge and Sperry Marine shall invoice Buyer accordingly. The surcharge shall be equivalent to the difference in the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer.

Limitation of Liability

12.1    Sperry Marine’s liability to Buyer or any third party arising out of or in relation to the Agreement or the performance thereof, whether based on contract, wrongful act or tort (including negligence), or for any damage or injury to or loss of any vessel, equipment, cargo or stores, or other property or for any consequences thereof shall be limited as specifically set forth above in article 10, and subject to the limitations there set out. In no event shall Sperry Marine’s liability exceed the purchase price of the particular Products or Service Work with respect to which losses or damages are claimed or which have caused the damage. Sperry Marine shall not have any other or further obligation or liability for any other damages whatsoever. Without limiting the foregoing, liability for consequential damages including but not limited to loss of profit, loss of turnover or damage caused as a result of inoperability of equipment, is expressly excluded.

12.2    The limitations of liability set out in these general terms of sale shall not apply to the extent that it might purport to exclude any liability imposed for product liability under any applicable statute where such liability cannot be so limited or excluded.

12.3    Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action from any third party relating to any Product sold to Buyer or the performance of work by Sperry Marine on behalf of Buyer, if and to the extent that under these general terms and conditions, Sperry Marine would not have been liable towards Buyer.

12.4    Sperry Marine shall not be liable for costs and/or damage directly ensuing from any shortcoming of Sperry Marine as a result of Force Majeure. Force Majeure is defined to be any circumstance independent of the control of Sperry Marine - whether foreseeable or not - due to which the fulfilment of the Agreement by Sperry Marine has become impossible or cannot reasonably be demanded from Sperry Marine, or which causes Sperry Marine to default under any of its obligations towards Buyer. Included in Force Majeure (but without limitation) are extreme weather conditions, fire, illness of personnel of Sperry Marine or its service representatives, lockouts and strikes at Sperry Marine’s plants or service stations of third parties to be used by Sperry Marine, difficulties or delay in the supply or delivery by suppliers or from Sperry Marine’s own stock of components or materials, and disturbances within the company of Sperry Marine, its service representatives or suppliers and the inability to obtain export licenses or the suspension of export licenses or approvals which have been issued. If the event of Force Majeure of a temporary nature, fulfilment will be suspended until the circumstance in question has ceased to exist. If Force Majeure is of a permanent nature or if temporary Force Majeure has continued or shall reasonably be expected to continue for more than 90 days, Sperry Marine shall be entitled to terminate the Agreement in whole or in part without any liability.

12.5    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by the Buyer.

Work on Sperry Marine’s premises

13.1    In the event that Buyer or Buyer’s employees or agents enter into Sperry Marine’s premises for any reason in connection with the Agreement, Buyer and such parties shall observe all security requirements and all plant safety, plant protection and traffic regulations.

Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, losses and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Buyer, Buyer’s employees, agents, representatives, or subcontractors, save and except for damage caused by the gross negligence of Sperry Marine.

Patents

14.1    Under the following conditions Sperry Marine shall indemnify Buyer against all actions, costs, demands and claims ensuing from a violation of EU or US patent or patents by the Products or any component thereof. This indemnity is subject to Buyer notifying Sperry Marine of such a claim or alleged violation which is being raised against him, in writing immediately after having become acquainted with it. Furthermore, Buyer shall do everything possible (with the exception of not using the Products in question) in order to limit the extent of the rights, claims, damage and expenses which would have to be paid by Sperry Marine as a result thereof. Sperry Marine shall, at its discretion, be entitled to take over, manage, carry on negotiations of, settle and/or defend any such claim and/or legal proceedings brought against Buyer with respect to the claim or allegation.

14.2    If the validity of the claim or allegation with respect to the Products has been proved to the satisfaction of Sperry Marine or in a court of final instance and the use of these Products is prohibited, Sperry Marine shall at its discretion and at its expense:

(a)    grant Buyer the right to continue to use the Products, or
(b)     replace or change the Products in such a way that violation ceases to exist, or
where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products.
Beyond the aforesaid Sperry Marine shall have no liability whatsoever.

14.3    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of a patent or a claim related to it, which is the result of:

(a)    change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer, or
(b)    the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine, or
(c)     the use of the Products in a manner for which they have neither been designed nor intended, or
(d)     violation of any patent in which Buyer or his subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise.

The aforesaid provides the sole and exclusive liability of Sperry Marine for or ensuing from violation of a patent or claims related to it.

14.4    The provisions in the preceding paragraphs shall also apply if a claim is based on violation of any trade mark right.


Export Control Compliance

15.1    Products may contain parts of multiple origin including USA. Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom, Germany, the European Community and the United States of America and will not export or re-export the product in violation of any such laws, rules or regulations. Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the product from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.

15.2    If an Export License is required for the performance of any Sperry Marine obligation, including but not limited to supply of Product, Service Work or warranty repairs in accordance with article 10, and such Export License is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under this Agreement and this Agreement shall automatically terminate. In case of a cancellation due to this reason the Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising but Sperry Marine shall be entitled to all payments for Product or Service Work already performed under this Agreement.

15.3    Orders that in the reasonable opinion of Sperry Marine appear to be in conflict with 15.1 shall not be accepted by Sperry Marine.

15.4    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with 15.1, this order will be immediately cancelled by Sperry Marine. In this case, Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising.

15.5 Territory restrictions apply to all direct and indirect sales and transfers made by Buyer, to include transactions where there is an identified end user/end use at the time Buyer purchases products from Sperry Marine or where Buyer purchases products from Sperry Marine for stock for later sale/transfer.

15.6 Buyer agrees that the (products/services) will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the goods will not be re-exported or otherwise sold or transferred to a destination subject to UN, EU, OSCE or US embargo where that act would be in breach of the terms of that embargo; and that the goods, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.

15. 7 Buyer also agrees that the (products/services) will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to US, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectoral Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014. Any such sales or transfers or proposals to such end users or end uses must be approved in writing by Sperry Marine in advance.

Applicable Law and Jurisdiction

16.1    The Agreement and all orders concluded between Sperry Marine and Buyer shall be interpreted and governed by the laws of Hong Kong and expressly exclude the UN Convention on Contracts for the International Sale of Goods,

16.2    Any dispute which may arise from or be related to the Agreement shall first be attempted to be settled through mediation in accordance with the mediation procedures of the Hong Kong International Arbitration Centre (HKIAC).  Should the dispute or any part thereof not be resolved within thirty (30) days of the mediation being commenced or such further period as agreed by the parties in writing it shall be settled by final and binding arbitration in accordance with the Rules of the Singapore International Arbitration Centre (SIAC) then in effect. The seat of arbitration shall be Singapore and the matter shall be determined by a Tribunal composed of three (3) arbitrators appointed in accordance with the Rules. The proceedings shall be conducted  in the English language and costs of the proceedings and the Tribunal shall be assessed by the arbitrators.

16.3    The Agreement is for the benefit of the parties to the Agreement only and nothing in these terms or any other part of the order or the Agreement is intended to provide, or should therefore be interpreted as providing, a right to any party that is not a party to the Agreement to enforce or otherwise benefit from the Agreement or any of its terms.

No Waiver and Cumulative Remedies

17.1    No failure or delay on the part of Sperry Marine in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The rights and remedies of the Buyer provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

Severability

18.1    The invalidity, illegality or unenforceability of any provisions of this agreement will not affect the continuation in force of the remainder of this Agreement.

Assignment

19.1    This Agreement shall be binding upon and insure to the benefit of Sperry Marine and buyer and their respective successors and assigns. Buyer may not assign its rights or obligations under this Agreement without the prior written consent of Sperry Marine.

Governing Language

20.1    This Agreement is written and governed in English language.

Counterparts

21.1    This Agreement may be executed in any number of counterparts each of which when executed by one or more of the parties to this Agreement will constitute an original but all of which will constitute one and the same instrument.

Anti-Bribery

22.1    Buyer is familiar with, has complied with, and will comply, in all respects, with all applicable anticorruption and anti-bribery laws. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.
 

 

Shanghai - Terms & Conditions for Sales and Service

 

NORTHROP GRUMMAN SPERRY MARINE TRADING (SHANGHAI) Co., Ltd.
General Terms & Conditions of Sale & Service Work Effective from 1st April 2014 NGSM T (S) Co. Ltd/GTS Rev. 1
 

Sale and Purchase

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine Trading (Shanghai) Co., Ltd. “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods (“Products”) and/or services (“Service Work”) to Buyer as they are described in the offer or in the order acceptance.

1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine and to all engagements of Sperry Marine for the sale and supply of Products by Sperry Marine and to all Service Work and the words “this Agreement” herein shall apply to all such agreements based on these terms.

1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing.

1.4    An agreement is effected at the moment when Sperry Marine has accepted the order in writing..

1.5    In each case the Agreement is concluded under the condition precedent that Buyer is creditworthy, as is to be determined by Sperry Marine in its exclusive discretion.

Offers, Contents of the Agreement

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at all times. Offers of which Sperry Marine has not received a written acceptance within 60 days after the relevant date shall be cancelled automatically. Orders placed by buyer are only accepted by Sperry Marine in written format.

2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by an authorized representative of Sperry Marine in writing.

2.3    Samples or models of Products shown or provided shall only serve the purpose of supplying information, which the product sold need not comply with in all details.

2.4    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Product in form, fit or function.

Prices

3.1    Unless otherwise expressly agreed upon in writing, prices shall apply as they have been published by Sperry Marine at the moment of delivery of the Products.

3.2    All prices quoted in offers and order acceptances are based on delivery FCA (Incoterms 2010), exclusive of value added tax (VAT), and exclusive of any other taxes and charges in effect at the date of quotation and applicable to the Products. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to Buyer and added to the invoice.

3.3    If at the request of Buyer changes in or supplements to the Agreement are executed, the price will be increased in accordance with the Sperry Marine hourly rates and product list prices then in effect at the moment of execution.   

3.4     The minimum order value which is applicable to all sales of products, spare parts and services, is RMB 2,000.00 (RMB TWO THOUSAND). In the event that an order does not reach this amount, Sperry Marine in its sole discretion is entitled to invoice the difference as an additional lumpsum to reach the minimum order value.

Delivery and Transport

4.1    Times of delivery are invariably stated as approximations, even if this has not been mentioned explicitly, and are deemed to commence at the date on which Sperry Marine has accepted the order of Buyer, or where required the date an export licence is granted, or at such later date as provided hereafter in this article. The dates of dispatch are deemed to have been based on immediate receipt of all the information to be provided by Buyer necessary for Sperry Marine to process the order and, in the event of export dispatches, they also depend on receipt of all required official export documents and licences required. Sperry Marine will endeavour to comply with the stated time of delivery. Buyer shall be obliged to accept delivery of shipments, immediately upon being notified of such by Sperry Marine. If the time of delivery which has been stated as an approximation is inordinately exceeded in relation to all or a portion of the order, Buyer shall be entitled to terminate that portion of the Agreement affected by the delay.
Buyer cannot, however, exercise this right prior to first consulting with Sperry Marine. Sperry Marine shall not be liable for damages of any nature or kind, including indirect, liquidated or consequential damages in the event the Agreement is so terminated.

4.2    Unless otherwise agreed upon, all deliveries are FCA (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.

4.3    Any costs incurred by Sperry Marine (including storage costs) ensuing from delay on the part of Buyer in accepting delivery or in his compliance with the requirements of article 6, shall be paid by Buyer.

4.4    Sperry Marine is entitled to make partial deliveries and in that case Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefore.

Cancellation

5.1     Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion. In the event of such a cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:

(a)    the contract price for any completed work not already paid ; and
(b)     all costs incurred by Sperry Marine in performance of the order and allocable thereto including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work under (a); and
(c)     to the extent not already included under (a), a sum for lost profits equal to 15% of the contract price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)     to the extent not already covered by (a) and (b), an amount equal to the costs of settling and paying any claims arising out of the cancelling of work under any subcontracts or purchase orders.

5.2    Without prejudice to any other right or remedy which Sperry Marine may have, in the event that Buyer cancels the order without the prior written consent of Sperry Marine, Sperry Marine shall be entitled to compensation for all loss or damage thereby incurred, including any loss of profit, or to demand specific performance.

Inspection and Service

6.1    During the warranty period referred to in article 10, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products.

6.2    If Buyer should request an inspection of the Products by Sperry Marine or its authorized service representatives, either during the warranty period or after expiry thereof, or if Buyer should request repairs, “Service Work” which Sperry Marine is not obliged to execute pursuant to its obligations by virtue of article 10, this inspection or Service Work, if agreed upon by Sperry Marine, will be executed at the hourly rate applicable to the district from which the service personnel travels. In addition, Sperry Marine may charge for the actual travelling and accommodation expenses of such personnel, and for their travelling time at the rates applicable, as defined above. If Service Work is required outside regular working hours, Buyer shall pay these extra hours at the hourly rate for overtime applicable in the district of the Sperry Marine service personnel provided.

6.3    Publications in which Sperry Marine has indicated in which places service stations are to be found are for information purposes only and Sperry Marine is not liable to retain such service stations.

Terms of Payment

7.1    Unless expressly otherwise agreed upon in writing, full payment in the invoiced currency shall be made by Buyer not later than within 30 days after the invoice  (or billing for orders based in the PRC)  date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount. All costs incurred in connection with payment of the invoice (or billing for orders based in the PRC) shall be at the expense of Buyer. Buyer may only submit a written notice of objection against the invoice (or billing for orders based in the PRC) within the term set out therein.

7.2    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of 30 days. From such moment, Buyer shall owe interest at 1.5% a month compounded on the amount still outstanding. For the calculation of the amount payable due to interest parts of months shall apply as whole months. All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.

7.3    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

7.4    If Buyer:

(a)    fails to comply with any obligation towards Sperry Marine pursuant to the Agreement; and/or
(b)    is unable to pay its debts, has a petition for bankruptcy filed against it, has a petition filed against it (or passes a resolution) for its winding up or for the appointment of an administrator or a receiver or applies for or is granted a payment moratorium or any similar events occur within the jurisdiction to which Buyer is subject; and/or
(c)    suffers any substantial change in his financial or business situation,

Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand. In this event, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer. Buyer shall be liable for all damages suffered by Sperry Marine as a result of such termination.

Retention of Title

8.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has complied with all its obligations under the Agreement including but not limited to:

(a)    payment in full of the price for the Products;
(b)     payment for any work performed on or in relation to the Products pursuant to the Agreement; and
(c)    payment of any claims against Buyer by Sperry Marine arising out of failure on the part of Buyer to comply with one or more of his obligations ensuing under any sales agreements with Sperry Marine.

8.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them. Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. The Products shall be held separate from Buyer’s own goods and clearly marked as Sperry Marine’s property.

8.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the goods on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products. Buyer is obliged to co-operate with Sperry Marine for this purpose.

8.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine, as well as of Buyer’s bankruptcy or moratorium, or of an attachment. Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

8.5    Sperry Marine may request such financial information respecting the Buyer’s ability to pay for Product or Service Work as in its discretion it deems necessary. Failure to provide such information within fifteen (15) days of a written request shall entitle Sperry Marine to enter upon the Buyer’s premises or premises where the Products are held and take possession of them.

Complaints and Buyer’s obligation to inspect products

9.1    Buyer is obliged to inspect the Products carefully after delivery and to inform Sperry Marine of any discoverable defects. Any complaints with respect to the Products shall be notified to Sperry Marine in writing within 10 days after delivery of the Products. If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, the complaint must be notified in writing within 8 days after the date on which the defect was discovered or could reasonably have been discovered, but in no event shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.

9.2    After expiry of the dates mentioned in paragraph 9.1 Buyer is deemed to have accepted the Products and Products can no longer be rejected.

Warranty

10.1     Sperry Marine warrants that all Products manufactured by Sperry Marine or its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when installed in accordance with the applicable Sperry Marine installation drawing, and Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or any authorised service representative of Sperry Marine.

10.2     Unless otherwise stated, or any other compulsory warranty period required by the PRC regulations in the event of contract dispute, for all Products sold as new, Sperry Marine’s obligation under the warranty shall be limited to defects as defined in article 10.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.3     For Service Work (except where performed under warranty) the warranty period shall be thirty (30) days from the date of performance and completion of the Service Work. The warranty period for new spare parts shall be twelve (12) months after date of installation or shipment, whichever period shall first expire. The warranty for reconditioned items or items not sold as new shall be for a period of ninety (90) days after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.4     In case of Products sold but not manufactured by Sperry Marine or its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be to extend to Buyer the manufacturer’s warranty, provided that Buyer complies with all applicable conditions of such warranty.

10.5    Sperry Marine’s warranty obligations shall in any event be limited to the replacement or repair (at Sperry Marine’s discretion) of any defective part. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine’s expense at any city, town or port at which Sperry Marine regularly maintains qualified service personnel. The publishing of a list of service stations shall not imply any obligation upon Sperry Marine to maintain a regularly established service station on any of the locations specified in such list.

10.6     It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair. Where Sperry Marine sends an engineer to the service location to effect the warranty repair, Buyer shall pay all travel expenses of the Sperry Marine engineer and Buyer shall pay the hourly rate for the engineer for any travel time in excess of a total of 4 hours round trip.

10.7     Defective Product or parts which are replaced under warranty shall be returned by Buyer at Buyer’s cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the replacement has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine. Where the defective Product or parts are not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine the full list price of the relevant Product or part and Sperry Marine shall invoice Buyer accordingly.

10.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station.

10.9     No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge. Damages or failure of any product supplied by Sperry Marine caused due to incorrect set up or use is not covered under Sperry Marine’s warranty terms.
No warranty shall be effective if a defective product has been repaired or in any way worked on by anyone other than Sperry Marine personnel or an authorised Sperry Marine agent without Sperry Marine’s prior consent.

10.10 In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in article 10.1, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.11 For the avoidance of doubt, the warranty set out in these terms includes any software installed as standard within the Product and which is required for its proper operation. The warranty therefore covers the remedy of defects in the software only where this materially affects the use of the Product, and where the defects can be reproduced at any time. Updates of software to newer versions in case of obsolescence may be provided free of charge at Sperry Marine’s discretion. Software upgrades resulting in an enhancement of the system’s capabilities are not covered under warranty, and the cost of labour and material for any such upgrades where requested by Buyer and agreed to by Sperry Marine shall be paid by the Buyer.
Sperry Marine shall not be liable nor shall Sperry Marine provide any warranty for software, interfaces, etc. made available to the Buyer by Sperry Marine but produced by other manufacturers.Where possible warranty rights against a manufacturer concerned shall be transferred by Sperry Marine to the Buyer.

Sperry Marine does not warrant that the software will function without interruption or error, that all software defects can be eliminated and that the software will correspond to the Buyer’s requirements and will function without error in each configuration the Buyer selects, unless such configuration has been specified by Sperry Marine.
Sperry Marine accepts no liability hereunder for claims for loss of data and it is strongly recommended that the Buyer perform a data backup in a machine readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to better enable the restoration of data.

10.12 The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Product, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above. All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.

Return of exchanged Products or Parts

11.1     Where Sperry Marine agrees to receive used or defective equipment in return for a reduction in the price of a product or part, such as under Sperry Marine’s Spares Exchange (SPEX) scheme, Buyer shall ensure that the returned equipment is delivered at Buyer’s cost to Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the Product has been installed and the respective commissioning report has been signed.

Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.

11.2     Where the used or defective equipment is not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine a surcharge and Sperry Marine shall invoice Buyer accordingly. The surcharge shall be equivalent to the difference in the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer.

Limitation of Liability

12.1     Sperry Marine’s liability to Buyer or any third party arising out of or in relation to the Agreement or the performance thereof, whether based on contract, wrongful act or tort (including negligence), or for any damage or injury to or loss of any vessel, equipment, cargo or stores, or other property or for any consequences thereof shall be limited as specifically set forth above in article 10, and subject to the limitations there set out. In no event shall Sperry Marine’s liability exceed the purchase price of the particular Products or Service Work with respect to which losses or damages are claimed or which have caused the damage. Sperry Marine shall not have any other or further obligation or liability for any other damages whatsoever. Without limiting the foregoing, liability for consequential damages including but not limited to loss of profit, loss of turnover or damage caused as a result of inoperability of equipment, is expressly excluded.

12.2    The limitations of liability set out in these general terms of sale shall not apply to the extent that it might purport to exclude any liability imposed for product liability under any applicable statute where such liability cannot be so limited or excluded.

12.3     Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action from any third party relating to any Product sold to Buyer or the performance of work by Sperry Marine on behalf of Buyer, if and to the extent that under these general terms and conditions, Sperry Marine would not have been liable towards Buyer.

12.4     Sperry Marine shall not be liable for costs and/or damage directly ensuing from any shortcoming of Sperry Marine as a result of Force Majeure. Force Majeure is defined to be any circumstance independent of the control of Sperry Marine - whether foreseeable or not - due to which the fulfilment of the Agreement by Sperry Marine has become impossible or cannot reasonably be demanded from Sperry Marine, or which causes Sperry Marine to default under any of its obligations towards Buyer. Included in Force Majeure (but without limitation) are extreme weather conditions, fire, illness of personnel of Sperry Marine or its service representatives, lockouts and strikes at Sperry Marine’s plants or service stations of third parties to be used by Sperry Marine, difficulties or delay in the supply or delivery by suppliers or from Sperry Marine’s own stock of components or materials, and disturbances within the company of Sperry Marine, its service representatives or suppliers and the inability to obtain export licenses or the suspension of export licenses or approvals which have been issued. If the event of Force Majeure of a temporary nature, fulfilment will be suspended until the circumstance in question has ceased to exist. If Force Majeure is of a permanent nature or if temporary Force Majeure has continued or shall reasonably be expected to continue for more than 90 days, Sperry Marine shall be entitled to terminate the Agreement in whole or in part without any liability.

12.5     Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by the Buyer.

Work on Sperry Marine’s premises

13.1     In the event that Buyer or Buyer’s employees or agents enter into Sperry Marine’s premises for any reason in connection with the Agreement, Buyer and such parties shall observe all security requirements and all plant safety, plant protection and traffic regulations. Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, losses and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Buyer, Buyer’s employees, agents, representatives, or subcontractors, save and except for damage caused by the gross negligence of Sperry Marine.

Patents

14.1     Under the following conditions Sperry Marine shall indemnify Buyer against all actions, costs, demands and claims ensuing from a violation of EU or US patent or patents by the Products or any component thereof. This indemnity is subject to Buyer notifying Sperry Marine of such a claim or alleged violation which is being raised against him, in writing immediately after having become acquainted with it. Furthermore, Buyer shall do everything possible (with the exception of not using the Products in question) in order to limit the extent of the rights, claims, damage and expenses which would have to be paid by Sperry Marine as a result thereof. Sperry Marine shall, at its discretion, be entitled to take over, manage, carry on negotiations of, settle and/or defend any such claim and/or legal proceedings brought against Buyer with respect to the claim or allegation.

14.2     If the validity of the claim or allegation with respect to the Products has been proved to the satisfaction of Sperry Marine or in a court of final instance and the use of these Products is prohibited, Sperry Marine shall at its discretion and at its expense:

(a)    grant Buyer the right to continue to use the Products, or
(b)     replace or change the Products in such a way that violation ceases to exist, or
where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products.
Beyond the aforesaid Sperry Marine shall have no liability whatsoever.

14.3    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of a patent or a claim related to it, which is the result of:

(a)    change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer, or
(b)    the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine, or
(c)     the use of the Products in a manner for which they have neither been designed nor intended, or
(d)     violation of any patent in which Buyer or his subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise.

The aforesaid provides the sole and exclusive liability of Sperry Marine for or ensuing from violation of a patent or claims related to it.

14.4     The provisions in the preceding paragraphs shall also apply if a claim is based on violation of any trade mark right.
 

Export Control Compliance

15.1     Products may contain parts of multiple origin including USA. Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom, Germany, the European Community and the United States of America and will not export or re-export the product in violation of any such laws, rules or regulations. Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the product from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.

15.2     If an Export Licence is required for the performance of any Sperry Marine obligation, including but not limited to supply of Product, Service Work or warranty repairs in accordance with article 10, and such Export License is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under this Agreement and this Agreement shall automatically terminate. In case of a cancellation due to this reason the Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising but Sperry Marine shall be entitled to all payments for Product or Service Work already performed under this Agreement.

15.3     Orders that in the reasonable opinion of Sperry Marine appear to be in conflict with 15.1 shall not be accepted by Sperry Marine.

15.4     Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with 15.1, this order will be immediately cancelled by Sperry Marine. In this case, Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising.

15.5 Territory restrictions apply to all direct and indirect sales and transfers made by Buyer, to include transactions where there is an identified end user/end use at the time Buyer purchases products from Sperry Marine or where Buyer purchases products from Sperry Marine for stock for later sale/transfer.

15.6 Buyer agrees that the (products/services) will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the goods will not be re-exported or otherwise sold or transferred to a destination subject to UN, EU, OSCE or US embargo where that act would be in breach of the terms of that embargo; and that the goods, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.

15. 7 Buyer also agrees that the (products/services) will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to US, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectoral Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014. Any such sales or transfers or proposals to such end users or end uses must be approved in writing by Sperry Marine in advance.

Applicable Law and Jurisdiction

16.1     The Agreement and all orders concluded between Sperry Marine and Buyer shall be interpreted and governed by the laws of the Peoples Republic of China (PRC) and expressly exclude the UN Convention on Contracts for the International Sale of Goods,

16.2     Any dispute which may arise from or be related to the Agreement shall first be attempted to be settled through mediation in accordance with the mediation procedures of the Hong Kong International Arbitration Centre (HKIAC).  Should the dispute or any part thereof not be resolved within thirty (30) days of the mediation being commenced or such further period as agreed by the parties in writing it shall be settled by final and binding arbitration in accordance with the Rules of the Singapore International Arbitration Centre (SIAC), then in effect. The seat of arbitration shall be Singapore and the matter shall be determined by a Tribunal composed of three (3) arbitrators appointed in accordance with the Rules. The proceedings shall be conducted in the English language and costs of the proceedings and the Tribunal shall be assessed by the arbitrators.

16.3     The Agreement is for the benefit of the parties to the Agreement only and nothing in these terms or any other part of the order or the Agreement is intended to provide, or should therefore be interpreted as providing, a right to any party that is not a party to the Agreement to enforce or otherwise benefit from the Agreement or any of its terms.

No Waiver and Cumulative Remedies

17.1    No failure or delay on the part of Sperry Marine in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The rights and remedies of the Buyer provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

Severability

18.1    The invalidity, illegality or unenforceability of any provisions of this agreement will not affect the continuation in force of the remainder of this Agreement.

Assignment

19.1    This Agreement shall be binding upon and insure to the benefit of Sperry Marine and buyer and their respective successors and assigns. Buyer may not assign its rights or obligations under this Agreement without the prior written consent of Sperry Marine.

Governing Language

20.1    This Agreement is written in both English and Chinese. In case of any discrepancy between the two languages, the English language version shall prevail.

Counterparts

21.1    This Agreement may be executed in any number of counterparts each of which when executed by one or more of the parties to this Agreement will constitute an original but all of which will constitute one and the same instrument.

Anti-Bribery

22.1    Buyer is familiar with, has complied with, and will comply, in all respects, with all applicable anticorruption and anti-bribery laws. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.
 

 

Europe - Terms & Conditions for Sales and Service

 NORTHROP GRUMMAN SPERRY MARINE BV
General Terms & Conditions of Sale & Service Work
Effective from 1st June 2013
NGSM B.V/GTS Rev. 4

1. Sale and Purchase

1.1 In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine BV “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods (“Products”) and/or services (“Service Work”) to Buyer as they are described in the offer or in the order acceptance.
1.2 These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine and to all engagements of Sperry Marine for the sale and supply of Products by Sperry Marine and to all Service Work and the words “this Agreement” herein shall apply to all such agreements based on these terms.
1.3 Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing.
1.4 An agreement is effected at the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.
1.5 In each case the Agreement is concluded under the condition precedent that Buyer is creditworthy, as is to be judged by Sperry Marine.

2. Offers, Contents of the Agreement

2.1 All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at all times. Offers of which Sperry Marine has not received a written acceptance within 60 days after the relevant date shall be cancelled automatically. Written engagements and orders of Buyer shall apply as irrevocable offers.
2.2 Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by the management of Sperry Marine in writing.
2.3 Samples or models of Products shown or provided shall only serve the purpose of supplying information, which the product sold need not comply with in all details.
2.4 Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Product in form, fit or function.

3. Prices

3.1 Unless otherwise expressly agreed upon in writing, prices shall apply as they have been published by Sperry Marine at the moment of delivery of the Products.
3.2 All prices quoted in offers and order acceptances are based on delivery FCA (Incoterms 2010), exclusive of value added tax (VAT), and exclusive of any other taxes and charges in effect at the date of quotation and applicable to the Products. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to Buyer and added to the invoice.
3.3 If at the request of Buyer changes in or supplements to the Agreement are executed, the price will be increased in accordance with the rates used by Sperry Marine at the moment of execution.
3.4 The minimum order value which is applicable to all sales of products, spare parts and services, is EUR 250,00. In the event that an order does not reach this amount, Sperry Marine will invoice the difference as an additional lumpsum to reach the minimum order value.

4. Delivery and Transport

4.1 Times of delivery are invariably stated as approximations, even if this has not been mentioned explicitly, and are deemed to commence at the date on which Sperry Marine has accepted the order of Buyer, or where required the date an export licence is granted, or at such later date as provided hereafter in this article. The dates of dispatch are deemed to have been based on immediate receipt of all the information to be provided by Buyer necessary for Sperry Marine to process the order and, in the event of export dispatches, they also depend on receipt of all required official export documents and licences required. Sperry Marine will endeavour to comply with the stated time of delivery. Buyer shall be obliged to accept delivery of shipments, immediately upon being notified of such by Sperry Marine. If the time of delivery which has been stated as an approximation is inordinately exceeded in relation to all or a portion of the order, Buyer shall be entitled to terminate that portion of the Agreement affected by the delay. Buyer cannot, however, exercise this right prior to first consulting with Sperry Marine. Sperry Marine shall not be liable for damages of any nature or kind, including indirect, liquidated or consequential damages in the event the Agreement is so terminated.
4.2 Unless otherwise agreed upon, all deliveries are FCA (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
4.3 Any costs incurred by Sperry Marine (including storage costs) ensuing from delay on the part of Buyer in accepting delivery or in his compliance with the requirements of article 6, shall be paid by Buyer.
4.4 Sperry Marine is entitled to make partial deliveries and in that case Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefore.

5. Cancellation

5.1 Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion. In the event of such a cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a) the contract price for any completed work not already paid ; and
(b) all costs incurred by Sperry Marine in performance of the order and allocable thereto including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work under (a); and
(c) to the extent not already included under (a), a sum for lost profits equal to 15% of the contract price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d) to the extent not already covered by (a) and (b), an amount equal to the costs of settling and paying any claims arising out of the cancelling of work under any subcontracts or purchase orders.
5.2 Without prejudice to any other right or remedy which Sperry Marine may have, in the event that Buyer cancels the order without the prior written consent of Sperry Marine, Sperry Marine shall be entitled to compensation for all loss or damage thereby incurred, including any loss of profit, or to demand specific performance.

6. Inspection and Service

6.1 During the warranty period referred to in article 10, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products.
6.2 If Buyer should request an inspection of the Products by Sperry Marine or its authorised service representatives, either during the warranty period or after expiry thereof, or if Buyer should request repairs, “Service Work” which Sperry Marine is not obliged to execute pursuant to its obligations by virtue of article 10, this inspection or Service Work, if agreed upon by Sperry Marine, will be executed at the hourly rate applicable to the district from which the service personnel travels. In addition, Sperry Marine may charge for the actual travelling and accommodation expenses of such personnel, and for their travelling time at the rates applicable, as defined above. If Service Work is required outside regular working hours, Buyer shall pay these extra hours at the hourly rate for overtime applicable in the district of the Sperry Marine service personnel provided.
6.3 Publications in which Sperry Marine has indicated in which places service stations are to be found are for information purposes only and Sperry Marine is not liable to retain such service stations.

7. Terms of Payment

7.1 Unless expressly otherwise agreed upon in writing, full payment in the invoiced currency shall be made by Buyer not later than within 30 days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount. All costs incurred in connection with payment of the invoice shall be at the expense of Buyer. Buyer may only submit a written notice of objection against the invoice within the term set out therein.
7.2 Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of 30 days. From such moment, Buyer shall owe interest at 1.5% a month compounded on the amount still outstanding. For the calculation of the amount payable due to interest parts of months shall apply as whole months. All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
7.3 At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.
7.4 If Buyer:
(a) fails to comply with any obligation towards Sperry Marine pursuant to the Agreement; and/or (b) is unable to pay its debts, has a petition for bankruptcy filed against it, has a petition filed against it (or passes a resolution) for its winding up or for the appointment of an administrator or a receiver or applies for or is granted a payment moratorium or any similar events occur within the jurisdiction to which Buyer is subject; and/or
(c) suffers any substantial change in his financial or business situation, Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand. In this event, Sperry Marine
is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer. Buyer shall be liable for all damages suffered by Sperry Marine as a result of such termination.

8. Retention of Title

8.1 Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has complied with all its obligations under the Agreement including but not limited to:
(a) payment in full of the price for the Products;
(b) payment for any work performed on or in relation to the Products pursuant to the Agreement; and (c) payment of any claims against Buyer by Sperry Marine arising out of failure on the part of Buyer to comply with one or more of his obligations ensuing under any sales agreements with Sperry Marine.
8.2 As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them. Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. The Products shall be held separate from Buyer’s own goods and clearly marked as Sperry Marine’s property.
8.3 If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the goods on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products. Buyer is obliged to co-operate with Sperry Marine for this purpose.
8.4 Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine, as well as of Buyer’s bankruptcy or moratorium, or of an attachment. Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.
8.5 Sperry Marine may request such financial information respecting the Buyer’s ability to pay for Product or Service Work as in its discretion it deems necessary. Failure to provide such information within fifteen (15) days of a written request shall entitle Sperry Marine to enter upon the Buyer’s premises or premises where the Products are held and take possession of them.

9. Complaints and Buyer’s obligation to inspect products

9.1 Buyer is obliged to inspect the Products carefully after delivery and to inform Sperry Marine of any discoverable defects. Any complaints with respect to the Products shall be notified to Sperry Marine in writing within 10 days after delivery of the Products. If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, the complaint must be notified in writing within 8 days after the date on which the defect was discovered or could reasonably have been discovered, but in no event shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
9.2 After expiry of the dates mentioned in paragraph 1 Buyer is deemed to have accepted the Products and Products can no longer be rejected.

10. Warranty

10.1 Sperry Marine warrants that all Products manufactured by Sperry Marine or its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when installed in accordance with the applicable Sperry Marine installation drawing, and Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or any authorised service representative of Sperry Marine.
10.2 Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under the warranty shall be limited to defects as defined in article 10.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire.
10.3 For Service Work (except where performed under warranty) the warranty period shall be thirty (30) days from the date of performance and completion of the Service Work. The warranty period for new spare parts shall be twelve (12) months after date of installation or shipment, whichever period shall first expire. The warranty for reconditioned items or items not sold as new shall be for a period of ninety (90) days after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
10.4 In case of Products sold but not manufactured by Sperry Marine or its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be to extend to Buyer the manufacturer’s warranty, provided that Buyer complies with all applicable conditions of such warranty.
10.5 Sperry Marine’s warranty obligations shall in any event be limited to the replacement or repair (at Sperry Marine’s discretion) of any defective part. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine’s expense at any city, town or port at which Sperry Marine regularly maintains qualified service personnel. The publishing of a list of service stations shall not imply any obligation upon Sperry Marine to maintain a regularly established service station on any of the locations specified in such list.
10.6 It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair. Where Sperry Marine sends an engineer to the service location to effect the warranty repair, Buyer shall pay all travel expenses of the Sperry Marine engineer and Buyer shall pay the hourly rate for the engineer for any travel time in excess of a total of 4 hours round trip.
10.7 Defective Product or parts which are replaced under warranty shall be returned by Buyer at Buyer’s cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the replacement has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine. Where the defective Product or parts are not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine the full list price of the relevant Product or part and Sperry Marine shall invoice Buyer accordingly.
10.8 Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station.
10.9 No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge. Damages or failure of any product supplied by Sperry Marine caused due to incorrect set up or use is not covered under Sperry Marine’s warranty terms.
No warranty shall be effective if a defective product has been repaired or in any way worked on by anyone other than Sperry Marine personnel or an authorised Sperry Marine agent without Sperry Marine’s prior consent.
10.10 In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in article 10.1, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.
10.11 For the avoidance of doubt, the warranty set out in these terms includes any software installed as standard within the Product and which is required for its proper operation. The warranty therefore covers the remedy of defects in the software only where this materially affects the use of the Product, and where the defects can be reproduced at any time. Updates of software to newer versions in case of obsolescence may be provided free of charge at Sperry Marine’s discretion. Software upgrades resulting in an enhancement of the system’s capabilities are not covered under warranty, and the cost of labour and material for any such upgrades where requested by Buyer and agreed to by Sperry Marine shall be paid by the Buyer.
Sperry Marine shall not be liable nor shall Sperry Marine provide any warranty for software, interfaces, etc. made available to the Buyer by Sperry Marine but produced by other manufacturers. Where possible warranty rights against a manufacturer concerned shall be transferred by Sperry Marine to the Buyer.
Sperry Marine does not warrant that the software will function without interruption or error, that all software defects can be elimininated and that the software will correspond to the Buyer’s requirements and will function without error in each configuration the Buyer selects, unless such configuration has been specified by Sperry Marine.
Sperry Marine accepts no liability hereunder for claims for loss of data and it is strongly recommended that the Buyer perform a data backup in a machine readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to better enable the restoration of data.
10.12 The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Product, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above. All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.

11. Return of exchanged Products or parts

11.1 Where Sperry Marine agrees to receive used or defective equipment in return for a reduction in the price of a product or part, such as under Sperry Marine’s Spares Exchange (SPEX) scheme, Buyer shall ensure that the returned equipment is delivered at Buyer’s cost to Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the Product has been installed and the respective commissioning report has been signed.
Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.
11.2 Where the used or defective equipment is not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine a surcharge and Sperry Marine shall invoice Buyer accordingly. The surcharge shall be equivalent to the difference in the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer.

12. Liability

12.1 Sperry Marine’s liability to Buyer or any third party arising out of or in relation to the Agreement or the performance thereof, whether based on contract, wrongful act or tort (including negligence), or for any damage or injury to or loss of any vessel, equipment, cargo or stores, or other property or for any consequences thereof shall be limited as specifically set forth above in article 10, and subject to the limitations there set out. In no event shall Sperry Marine’s liability exceed the purchase price of the particular Products with respect to which losses or damages are claimed or which have caused the damage. Sperry Marine shall not have any other or further obligation or liability for any other damages whatsoever. Without limiting the foregoing, liability for consequential damages including but not limited to loss of profit, loss of turnover or damage caused as a result of inoperability of equipment, is expressly excluded.
12.2 The limitations of liability set out in these general terms of sale shall not apply to the extent that it might purport to exclude any liability imposed for product liability under any applicable statute where such liability cannot be so limited or excluded.
12.3 Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action from any third party relating to any Product sold to Buyer or the performance of work by Sperry Marine on behalf of Buyer, if and to the extent that under these general terms and conditions, Sperry Marine would not have been liable towards Buyer.
12.4 Sperry Marine shall not be liable for costs and/or damage directly ensuing from any shortcoming of Sperry Marine as a result of Force Majeure. Force Majeure is defined to be any circumstance independent of the control of Sperry Marine - whether foreseeable or not - due to which the fulfilment of the Agreement by Sperry Marine has become impossible or cannot reasonably be demanded from Sperry Marine, or which causes Sperry Marine to default under any of its obligations towards Buyer. Included in Force Majeure (but without limitation) are extreme weather conditions, fire, illness of personnel of Sperry Marine or its service representatives, lockouts and strikes at Sperry Marine’s plants or service stations of third parties to be used by Sperry Marine, difficulties or delay in the supply or delivery by suppliers or from Sperry Marine’s own stock of components or materials, and disturbances within the company of Sperry Marine, its service representatives or suppliers and the inability to obtain export licenses or the suspension of export licenses or approvals which have been issued. If the event of Force Majeure of a temporary nature, fulfilment will be suspended until the circumstance in question has ceased to exist. If Force Majeure is of a permanent nature or if temporary Force Majeure has continued or shall reasonably be expected to continue for more than 90 days, Sperry Marine shall be entitled to terminate the Agreement in whole or in part without any liability.
12.5 Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by the Buyer.

13. Work on Sperry Marine’s premises

13.1 In the event that Buyer or Buyer’s employees or agents enter into Sperry Marine’s premises for any reason in connection with the Agreement, Buyer and such parties shall observe all security requirements and all plant safety, plant protection and traffic regulations. Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, losses and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Buyer, Buyer’s employees, agents, representatives, or subcontractors, save and except for damage caused by the gross negligence of Sperry Marine.

14. Patents

14.1 Under the following conditions Sperry Marine shall indemnify Buyer against all actions, costs, demands and claims ensuing from a violation of EU or US patent or patents by the Products or any component thereof. This indemnity is subject to Buyer notifying Sperry Marine of such a claim or alleged violation which is being raised against him, in writing immediately after having become acquainted with it. Furthermore, Buyer shall do everything possible (with the exception of not using the Products in question) in order to limit the extent of the rights, claims, damage and expenses which would have to be paid by Sperry Marine as a result thereof. Sperry Marine shall, at its discretion, be entitled to take over, manage, carry on negotiations of, settle and/or defend any such claim and/or legal proceedings brought against Buyer with respect to the claim or allegation.
14.2 If the validity of the claim or allegation with respect to the Products has been proved to the satisfaction of Sperry Marine or in a court of final instance and the use of these Products is prohibited, Sperry Marine shall at its discretion and at its expense: (a) grant Buyer the right to continue to use the Products, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products. Beyond the aforesaid Sperry Marine shall have no liability whatsoever.
14.3 Sperry Marine shall not have any obligations towards Buyer with respect to any violation of a patent or a claim related to it, which is the result of: (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer, or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine, or (c) the use of the Products in a manner for which they have neither been designed nor intended, or (d) violation of any patent in which Buyer or his subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise. The aforesaid provides the sole and exclusive liability of Sperry Marine for or ensuing from violation of a patent or claims related to it.
14.4 The provisions in the preceding paragraphs shall also apply if a claim is based on violation of any trade mark right.

15. Export Control Compliance

15.1 Products may contain parts of multiple origin including USA. Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom, Germany, the European Community and the United States of America and will not export or re-export the product in violation of any such laws, rules or regulations. Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the product from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
15.2 If an Export Licence is required for the performance of any Sperry Marine obligation, including but not limited to supply of Product, Service Work or warranty repairs in accordance with article 10, and such Export License is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under this Agreement and this Agreement shall automatically terminate. In case of a cancellation due to this reason the Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising but Sperry Marine shall be entitled to all payments for Product or Service Work already performed under this Agreement.
15.3 Orders that in the reasonable opinion of Sperry Marine appear to be in conflict with 15.1 shall not be accepted by Sperry Marine.
15.4 Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with 15.1, this order will be immediately cancelled by Sperry Marine. In this case, Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising.
15.5 Territory restrictions apply to all direct and indirect sales and transfers made by Buyer, to include transactions where there is an identified end user/end use at the time Buyer purchases products from Sperry Marine or where Buyer purchases products from Sperry Marine for stock for later sale/transfer.
15.6 Buyer agrees that the (products/services) will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the goods will not be re-exported or otherwise sold or transferred to a destination subject to UN, EU, OSCE or US embargo where that act would be in breach of the terms of that embargo; and that the goods, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
15. 7 Buyer also agrees that the (products/services) will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to US, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectoral Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014. Any such sales or transfers or proposals to such end users or end uses must be approved in writing by Sperry Marine in advance.

16. Applicable Law and Jurisdiction

16.1 The Agreement and all orders concluded between Sperry Marine and Buyer shall be interpreted and governed by the laws of England and expressly exclude the UN Convention on Contracts for the International Sale of Goods.
16.2 Any dispute which may arise from or be related to the Agreement shall first be attempted to be settled through mediation in accordance with the mediation rules of CEDER (England). Should the dispute or any part thereof not be resolved within thirty (30) days of the mediation being commenced or such further period as agreed by the parties in writing it shall be settled by final and binding arbitration in accordance with the Rules of the International Chamber of Commerce (ICC), then in effect. The seat of arbitration shall be London, England and the matter shall be determined by a Tribunal composed of three (3) arbitrators appointed in accordance with the Rules. The proceedings shall be conducted in the English language and costs of the proceedings and the Tribunal shall be assessed by the arbitrators. Sperry Marine reserves the right to file a lawsuit at the location of the customer in case of a delay in payment
16.3 The Agreement is for the benefit of the parties to the Agreement only and nothing in these terms or any other part of the order or the Agreement is intended to provide, or should therefore be interpreted as providing, a right to any party that is not a party to the Agreement to enforce or otherwise benefit from the Agreement or any of its terms.

 

Americas - Terms & Conditions for Sales and Service

 

TERMS & CONDITIONS APPLICABLE TO THE SALES & SUPPORT OF SPERRY MARINE PRODUCTS & SERVICES

APPLICABLITY

The following terms and conditions shall apply to all quotations and resultant sales for marine products. Hereinafter, the term “Sperry Marine” shall mean Sperry Marine, a unit of Northrop Grumman Systems Corporation. The Term "Customer" shall mean the person or firm to whom the quotation is furnished.  In the event of any inconsistency between any of the following terms and conditions and terms and conditions specifically set forth in any quotation, such specific terms and conditions of the quotation shall govern. Acceptance of this quotation is limited to its terms, and Sperry Marine reserves the right to reject any other terms imposed by the purchaser. In addition, Sperry Marine reserves the right to increase the cost of the original quotation in consideration of the acceptance of different or
additional terms and conditions.

DURATION OF QUOTATION

Unless otherwise stated each quotation expires sixty (60) days from the date of the quotation. Quotations are subject to availability at issuance of order.

PRICES

Unless otherwise stated, prices are quoted FCA (Incoterms 2010) Sperry Marine facility or plant. The price applicable to each item shall be the currency amount set forth in the quotation. Prices shall be quoted in U.S. dollars unless otherwise stated in the contract.

TAXES

Unless otherwise stated all prices are quoted excluding all federal, state and local sales, use, excise, or other taxes, and charges in effect at the date of the quotation and directly
applicable to the product covered by the quotation. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to
the Customer.

PARTIAL SHIPMENT

Sperry Marine shall be permitted to make an invoice for partial shipment of completed products.

PAYMENT AND TITLE

Payment terms applicable to all quotations and resultant sales are in accordance with the terms specified in the quotation letter. Unless stated otherwise in the quotation letter, payment for goods and/or services shall be NET 30 DAYS from the date of invoice. Finance charges will accrue at a rate of one and onehalf percent (1 1/2%) per month (18% per annum) on delinquent invoices. Title shall pass to the Customer upon receipt of payment in full for the Products and Services provided.

DELIVERY

Unless otherwise stated, delivery shall be F.O.B. Sperry Marine plant or facility (in the case of delivery to/from foreign destinations FCA Point of Origin, INCOTERMS 2010 applies). Title and risk of loss shall pass to the Customer at the shipping point. Sperry Marine reserves the right to select the means of transportation and routing of shipments unless the Customer supplies specific instructions, which are incorporated herein by mutual agreement. Shipping dates are approximate and based on prompt receipt of all necessary information from the Customer, and, in the case of export shipments, are also
contingent upon receipt of all necessary export related documents and receipt of any required and approved export license from the U.S. Government. If Customer elects to call for expedited shipments, the Customer will pay the difference between the method of shipping specified in the Purchase Order and the actual expedited rate (cost) incurred. Sperry Marine reserves the right to ship items in advance of the agreed schedule, and the Customer is to pay invoices covering items shipped in advance.

DELAYS AND DAMAGES

Sperry Marine shall not be liable for any loss damages, detentions, or delay resulting from causes beyond reasonable control or resulting from acts of God or a public enemy, acts of any Government in either their sovereign or contractual capacity, priorities, allocations, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, insurrection or riot, car shortages, damage in transportation, and inability due to causes beyond its reasonable control to obtain necessary labor, materials, or manufacturing facilities. In the event of delays resulting from any such causes, the date of delivery shall be extended for a reasonable length of time, but in no event for less than the period of delay. The receipt by the Customer of any delayed shipment shall, upon
delivery thereof, constitute a waiver of all claims for delay. In no event shall Sperry Marine be liable for special or consequential damages by reason of any delay in delivery or any failure to deliver.

INSTALLATION

Sperry Marine shall furnish an installation drawing showing sizes, weights, mounting and overall dimensions, and other information of interest to the installing activity. The Customer shall furnish all foundations, all interconnections between units and between units and the source of supply, all necessary labor to install and fit the complete equipment, and all necessary material except that which is required to be furnished by Sperry Marine in accordance with the applicable specifications or installation drawings.

SUPERVISION

Upon request, Sperry Marine will provide the Customer a qualified engineer to supervise the unpacking, assembly, and installation of any product and final testing and adjusting thereof. In such case, the Customer shall pay for the time of such engineer at Sperry Marine hourly charge prevailing in the base area from which the engineer operates. In the event supervision is requested by the Customer at a city, town or port where Sperry Marine does not at the time regularly maintain qualified personnel, Customer shall pay the applicable hourly charge as aforesaid for all travel time of such engineer to and from the place of the work and in addition thereto actual living and traveling expenses of the engineer. If the services of any engineer are required for more than eight hours in any workday or for more than forty hours in any workweek, the Customer shall pay for such excess hours at Sperry Marine’ hourly overtime charge prevailing in the engineer’s base area. Customer is responsible for modification of an existing purchase order or issuance of a new purchase order to cover the additional cost of this service.

INSPECTION AND SERVICE

During the warranty period Sperry Marine may, at its expense, without charge to the Customer, inspect at any reasonable time any product installed. If inspection by Sperry Marine is requested by the Customer, whether during the warranty period or subsequent to the expiration thereof, or if repair service or other work ("service work") is requested by the Customer that Sperry Marine is not obligated to perform pursuant to its obligations under the section hereof entitled "Warranty," such inspection or service work shall be provided at Sperry Marine hourly charge prevailing in the base area from which Sperry Marine personnel operate. If the Customer requested such inspection or service work at a city, town or port where Sperry Marine does not at the time regularly maintain qualified personnel, spare parts or equipment to handle the inspection or service work, the Customer shall pay at the applicable charge as aforesaid for all travel time of Sperry Marine personnel to and from the place of inspection or service work, and in addition thereto actual living and traveling expenses of such personnel. If the services of personnel are required for more than eight (8) hours in any working day or more than forty (40) hours in any work week, the Customer shall pay for such excess hours at Sperry Marine hourly overtime charge prevailing in the base area of the personnel. This inspection service cannot be maintained, nor shall performance be guaranteed, should any apparatus other than that supplied by Sperry Marine be used with or attached in any way or modifications made to the equipment, unless written approval has first been secured from Sperry Marine.

WARRANTY

Sperry Marine warrants that all products sold pursuant to the quotation at the time of delivery will be free from defects in material and workmanship under normal use and service and when installed in accordance with the applicable Sperry Marine installation drawing and with Sperry Marine Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or a Sperry Marine authorized Service Representative. Sperry Marine obligation under this warranty shall be limited to defects of which Sperry Marine is notified within twelve (12) months after date of installation (date of installation is defined as the date that a Sperry Marine authorized Service Representative and the customer representative sign a completed Installation Report) or twenty four (24) months after date of shipment whichever period shall first expire, and shall be limited to the replacement or repair of any defective part or parts. (Except electron tubes and cathode ray tubes (CRT), for which this warranty applies only for a period of ninety (90) days after date of installation or six (6) months after date of shipment, whichever period shall first expire). For service work, as defined in the section “Inspection and Service” preceding this section, the warranty period shall be for a period not to exceed thirty (30) days from date of performance and completion of the service work for equipment for which service is requested and not related to warranty. The warranty for items repaired or overhauled in accordance with Sperry Marine procedure, drawings, designs and specifications and for spare parts shall be for a period not to exceed ninety (90) calendar days from the date of shipment or installation by Sperry Marine personnel. Except for warranty as to title and warranty set forth above, Sperry Marine makes no warranty, express, implied or implied by law as to any product; and EXCEPT AS SPECIFICALLY SET FORTH HEREIN SPERRY MARINE MAKES NO WARRANTY, EXPRESSED OR IMPLIED, OF FITNESS OR MERCHANTABILITY.

No warranty, however, shall be effective as to any product to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing. Warranty shall also be voided if modifications are made to Sperry Marine provided parts or equipment, by other than a Sperry Marine Service Engineer (MSE) or Sperry Marine authorized Service Representative, unless Sperry Marine specifically approves modifications in writing. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine
expense at any city, town, or port at which Sperry Marine regularly maintains or has arranged for qualified service personnel, has available equipment to handle such work, and has available replacement parts at the time of notice of defect. If replacement parts are not so available, they can be obtained at no charge, F.O.B. Sperry Marine plant, provided the defective part is returned prepaid for examination or has been found defective by a Sperry Marine authorized Service Representative. In the event that service personnel are not available at the city, town or port at which the Customer requests replacement of a defective part, Sperry Marine shall, at the request of the Customer, furnish qualified service personnel in connection with such replacement, provided that for each service engineer
so furnished the Customer shall pay for travel time to and from such city, town, or port, at the hourly rate prevailing in the base area from which the service engineer operates, plus actual living
and traveling expenses incidental to providing such personnel.

The foregoing provision sets forth Sperry Marine’s complete liability for breach of warranty in respect of, or for any defect or nonconformity in, any product; and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above; and, in no event, shall Sperry Marine have any other or further obligation or any liability for special or consequential damages. The publishing of a list of service stations shall not impose or imply any obligation upon Sperry Marine to maintain a regularly established service station at any of the locations specified in such list.

RETURN OF EXCHANGED PRODUCTS OR PARTS

Where Sperry Marine agrees to receive used or defective equipment in return for a reduction in the price of a product or part, such as under Sperry Marine’s Spares Exchange (SPEX) scheme, Buyer shall ensure that the returned equipment is delivered at Buyer’s cost to Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the Product has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.

Where the used or defective equipment is not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine a surcharge and Sperry Marine shall invoice Buyer accordingly. The surcharge shall be equivalent to the difference in the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer.

SOFTWARE

Sperry Marine neither represents nor warrants that it will provide later versions of software for any reason whatsoever, including, but not necessarily limited to, correcting errors or adding enhancements or new features. Any such successor versions of software will be released solely at Sperry Marine's discretion and release schedule. If Sperry Marine does offer successor versions of software, Sperry Marine does not and will not make any representations that it will be compatible or operate on hardware currently used by customer to run the current version of software, or that Sperry Marine will provide warranty support or other services beyond the period covered by Customer's current software and applicable hardware warranties.

Customer shall not reverse engineer, decompile or disassemble any software disclosed to it that is Proprietary Information of the Sperry Marine.

LIMITATION OF LIABILITY

Sperry Marine’s liability or responsibility to Customer for any injury to any person (including death), or for damage or injury to or loss of any vessel, equipment, cargo, stores, or other property, or for any consequences thereof (including but not limited to pollution clean up and remediation), shall be limited to those remedies available to Customer under these Terms and Conditions, subject to the limitations and exclusions of remedies and damages herein set out. Sperry Marine shall have no other responsibility or liability, whether claim is made in negligence, strict liability, in tort, or any other legal theory, whether such claim is made by Customer or any party in privity with Customer. In no event shall Sperry Marine’s liability exceed the purchase price of the particular service, equipment or part with respect to which injuries, losses or damages are claimed.

INDEMNIFICATION

Customer agrees to defend, indemnify and hold Sperry Marine harmless of and from any claims, actions, causes of action, demands, losses and judgments arising from any injury to any person (including death), or damage to property, when such injury or damage results in whole or in part from any act or omission of Customer, or Customer’s agents, employees, contractors or subcontractors, in the installation or use of any equipment or parts sold or provided to Customer by Sperry Marine, or the use of any services sold or provided to Customer by Sperry Marine.

LAWS

Any dispute should be resolved by mutual agreement between the parties. If the parties are unable to resolve their dispute despite good faith negotiations, either party may file an action in court to seek appropriate legal or equitable relief. Exclusive jurisdiction over actions relating to or arising under this agreement shall reside in any Federal or Commonwealth Court in the Commonwealth of Virginia having jurisdiction over the parties. This agreement shall be interpreted and controlled by the laws of the Commonwealth of Virginia without regard to its conflicts of laws provisions.

CONTRACTUAL COMMITMENTS

Sperry Marine and the Customer agree that there shall be no adjustments in the price, time for performance, or any other provision on this sale unless an authorized representative of Sperry Marine Contracts Department shall have issued a written order directing a change hereto.

NOTICES

All notices required or permitted to be given hereunder shall be deemed to be properly given if delivered in writing personally or sent by United States certified or registered mail addressed to Sperry Marine or Customer, as the case may be, to the addresses set forth on the face or in the body of the Purchase Order with postage thereon fully prepaid. The effective time of notice shall be at the time of mailing.

WORK ON SPERRY MARINE PREMISES

In the event that Customer or Customer's employees or agents enter onto Sperry Marine premises for any reason in connection with the Purchase Order, Customer and such other parties shall observe all security requirements and all plant safety, plant protection and traffic regulations. Customer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Customer, Customer's employees, agents, representatives, or subcontractors of Customer save and except damage caused by the negligence of Sperry Marine. Customer, and any contractor used by Customer in connection with this
Purchase Order, shall carry Workmen's Compensation and Employee's Liability insurance to cover Customer and contractor's legal liability on account of accidents to their employees. Customer and any contractor used by Customer in connection with the Purchase Order, shall carry adequate Comprehensive General Liability and adequate Comprehensive Automobile Liability Insurance to cover the legal liability of Customer and the contractor on account of accidents arising out of the operations of Customer or the contractor and resulting in bodily injury, including death, being sustained by any person or
persons, or any damage to property. At Sperry Marine’s request, Customer shall furnish to Sperry Marine certificates from Customer and its contractor's insurers showing such coverage in affect and agreeing to give Sperry Marine ten (10) days’ prior written notice of cancellation of the coverage.

CANCELLATION

The Customer may cancel the Purchase Order only with the consent of Sperry Marine. In the event of any such consent and cancellation, the Customer shall pay Sperry Marine an amount equal to either (i) the sum of (a) the contract price for any completed work not theretofore paid; and (b) all costs reasonably incurred by Sperry Marine in performance of the order and allocable thereto in accordance with generally accepted accounting principles including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work in (a); and (c) a sum of
profit equal to eighteen percent (18%) of all costs in (b); and (d) an amount equal to the reasonable costs of settling and paying the claims arising out of the canceling of work under any subcontracts or purchase orders, all less the reasonable resale or salvage value of any work or materials allocated to the performance of the Customer's order; or (ii) a fifteen percent (15%) service/cancellation charge based on the part of the contract price being terminated if that amount is greater than the combined totals of (a) through (d) above. In the event of bankruptcy or insolvency of the Customer, or in the event of any proceeding is brought by or against the Customer under any bankruptcy or insolvency laws, Sperry Marine shall be entitled to treat such event as a material breach of the order.

PATENT INFRINGEMENT

Sperry Marine shall defend any suit or proceeding brought against the Customer to the extent that it is based on a claim that any of the products sold pursuant to the quotation constitute an infringement of any patent of the United States. If Sperry Marine is notified promptly in writing and given authority, information and assistance (at Sperry Marine expense) for defense or settlement of the same, and Sperry Marine shall in such case pay all damages and costs which by final judgment shall be awarded there under against the Customer or which shall be agreed upon by settlement provided, however, that no such obligation or liability shall result from the foregoing provision if any such settlement shall be made by the Customer without Sperry Marine consent, and provided further that no obligation or liability shall result from the foregoing provision if and to the extent that any such product is manufactured in accordance with specifications furnished Sperry Marine by the Customer and not based upon Sperry Marine design, and provided further that no obligation or liability shall result from the foregoing provision where infringement results from the addition to any product of, or the use of any product in
combination with, other equipment or supplies not furnished by Sperry Marine for the purpose of such addition or use. If in any such suit or proceeding any product is held to constitute infringement and the use thereof is therefore enjoined (or Sperry Marine consents to the non-use thereof). Sperry Marine shall at its own expense and its option either (i) procure for the Customer the right to continue using such product, or (ii) modify such product to become non-infringing, or replace such product with non-infringing equipment, or (iii) refund the amount paid Sperry Marine therefore less a reasonable
allowance for use, damage, and obsolescence. In the event of any such refund, Sperry Marine shall have the right to remove the product in respect of which such refund is made. The foregoing states the entire liability of Sperry Marine for patent infringement by any product or any part thereof.

INTELLECTUAL PROPERTY RIGHTS

This Purchase Order does not confer or grant, in any manner whatsoever, any license or right under any patent, trademark, trade secret, maskwork, copyright or other intellectual property right held by Sperry Marine, unless specifically set forth in the body of the Purchase Order.

PROTECTION OF INFORMATION

(a) If a separate confidentiality, nondisclosure, or proprietary information agreement exists between Customer and Sperry Marine which relates to this Purchase Order, then confidential or proprietary information furnished by one party to the other party shall be protected pursuant to such agreement, and paragraphs (b) through (g) of this clause shall not apply.

(b) If no separate confidentiality, nondisclosure, or proprietary information agreement exists between Customer and Sperry Marine, paragraphs (c) through (g) of this clause apply.

(c) For purposes of this clause, “Information” shall mean information disclosed to Customer by Sperry Marine in connection with this Purchase Order, which is either identified to Customer as being proprietary or which is information a reasonable person would understand to be such information. Examples of Information include, but are not limited to, pricing policies, business plans or programs,
software, specifications, manuals, print-outs, notes and annotations, performance data, designs, drawings, dimensions, processes, data, reports, photographs, and engineering, manufacturing or technical information related to Sperry Marine’s products, services, equipment or processes, as well as duplicates, copies or derivative works thereof. Information shall not mean any information previously known to Customer without obligation of confidence, or which becomes publicly disclosed, or which is rightfully received by Customer from a third party without obligation of confidence.

(d) Information furnished to Customer shall remain Sperry Marine’s proprietary property, shall be duplicated only as authorized in writing by Sperry Marine, and shall be returned to Sperry Marine upon request or when no longer required for the performance of this Customer Order.

(e) Customer shall not disclose Information to any third party, and shall take all reasonable precautions to prevent the disclosure of Information to third parties, including any foreign national, firm or country, and foreign nationals employed by or associated with Customer’s company except as specifically authorized by Sperry Marine. Customer agrees not to use Information to develop any product, service or system, or to support any third party in the development of any product, service or system.

(f) Data and information provided by Sperry Marine shall be considered proprietary only when marked as proprietary. Sperry Marine’s proprietary data and information will be used by Customer only upon approval by Sperry Marine.

(g) Customer’s obligations with respect to Information disclosed hereunder prior to the performance in full, termination or cancellation of this Purchase Order shall not, except as expressly set forth herein, be affected by such performance in full, termination, or cancellation.

EXPORT CONTROL

Products may contain parts of multiple origin including USA. Customer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom, Germany, the European Community and the United States of America and will not export or re-export the product in violation of any such laws, rules or regulations. Customer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the product from Customer will not export or re-export in violation of the aforementioned laws, rules and regulations.
If an export licence is required for the performance of any Sperry Marine obligation, including but not limited to supply of product, service work or warranty repair, and such export license is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Customer under this agreement and this agreement shall automatically terminate. In case of a cancellation due to this reason the Customer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising but Sperry Marine shall be entitled to all payments for product or service work already performed under this agreement.
Orders that in the reasonable opinion of Sperry Marine appear to be in conflict with this clause shall not be accepted by Sperry Marine.
Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with this clause, this order will be immediately cancelled by Sperry Marine. In this case, Customer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising.

Territory restrictions apply to all direct and indirect sales and transfers made by Customer, to include transactions where there is an identified end user/end use at the time Customer purchases products from Sperry Marine or where Customer purchases products from Sperry Marine for stock for later sale/transfer.

Customer agrees that the (products/services) will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the goods will not be re-exported or otherwise sold or transferred to a destination subject to UN, EU, OSCE or US embargo where that act would be in breach of the terms of that embargo; and that the goods, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.

Customer also agrees that the (products/services) will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to US, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectoral Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014. Any such sales or transfers or proposals to such end users or end uses must be approved in writing by Sperry Marine in advance.