Terms & Conditions
TERMS & CONDITIONS OF PURCHASE GOODS & SERVICES
1. ACCEPTANCE
Seller has read and understands this contract and agrees that Seller's written acceptance or commencement of any work or services under this contract shall constitute Seller's acceptance of these terms and conditions only. The Buyer does not accept any of Supplier's general terms and conditions of business that conflict with, or deviate from, the Buyer's Term & Conditions of Purchase, unless the Buyer expressly consent to their inclusion in writing prior to their attempted incorporation.
2. SHIPPING AND BILLING
Seller agrees:
(a) to properly pack, mark and ship goods in accordance with the requirements of Buyer, the involved carriers, and, if applicable, the country of destination; (b) to route shipments in accordance with Buyer's instructions; (c) to make no charge for handling, packaging, storage or transportation of goods, unless otherwise stated as an item on this contract; (d) to provide with each shipment packing slips with Buyer's contract and/or release number and date of shipment marked thereon; (e) to properly mark each package with a label/tag according to Buyer's instructions; (f) to promptly forward the original bill of lading or other shipping receipt for each shipment in accordance with Buyer's instructions. Seller will include on bills of lading or other shipping receipts correct classification identification of the goods shipped in accordance with Buyer's instructions and the carrier's requirements. The marks on each package and identification of the goods on packing slips, bills of lading and invoices (when required) shall be sufficient to enable Buyer to easily identify the goods purchased. Seller further agrees: (a) to accept payment based upon Buyer's Evaluated Receipt Record/Self Billed Invoice, unless an invoice is requested by Buyer; and (b) to accept payment by electronic funds transfer. The payment date shall be the date set forth on the Purchase Order, which provides, on average, that payment shall be made on the 30th day from month end. Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may direct, of the absence of any encumbrances and claims on the goods or services under this contract.
3 PRICE AND TERMS OF PAYMENT
3.1 The price for the goods shall be as stated in the Buyer's order and unless expressly stated by Buyer to the contrary shall be inclusive of the cost of packaging, delivery and of all and any duties, taxes (except [VAT/GST] where applicable), tariffs or other impositions chargeable on the goods all of which shall be the responsibility of the Seller. [Charges for returnable packaging shall be ignored and the cost of the return of such paid by the Seller. Any returnable packaging must be clearly marked "returnable" and with the Seller's name and address].
3.2 Other than price downs agreed by the parties in writing no variation in the price of the goods or the method of payment specified in the Buyer's order will be accepted without the prior written approval of the Buyer.
3.3 Payment for goods supplied to the Buyer shall be conditional upon and subject to:
3.3.1 delivery of the Goods to the Buyer without subsequent rejection of them in accordance with these terms and conditions; and
3.3.2 the date, the price and the Buyer's purchase order number, delivery schedule number if separate and other information required by the Buyer being quoted on the Seller's invoice and delivery documents, and
3.3.3 where relevant, the delivery to the Buyer of an appropriate [VAT/GST] invoice in respect of the Goods.
3.4 Payment shall be effected by the Buyer, in the currency specified in the Buyer's order.
3.5 The Buyer reserves the right to deduct from any monies due or becoming due to the Seller any monies owed to or claimed by the Buyer from the Seller.
4 DELIVERY, RISK AND TITLE
4.1 The goods shall be delivered by the Seller at its own expense and shall be accompanied by a delivery note quoting the Buyer's order number and any other information required by the Buyer.
4.2 The Buyer may require, but is not obliged to accept, delivery in instalments
4.3 Delivery will be made to the address specified in the Buyer's order and at the times specified therein or in the Buyer's delivery schedules (if separate).
4.4 Where no time is stated the Seller shall give the Buyer reasonable notice of the proposed time and date of actual delivery. Where a time or date for delivery is specified it shall be of the essence.
4.5 Risk of loss or damage to the goods shall pass to the Buyer upon actual delivery of the goods to the Buyer as specified by the Buyer in its order. Any loss or damage prior to that time shall be borne by the Seller.
4.6 In respect of goods supplied to the Buyer by the Seller, title to and ownership of the goods shall pass to the Buyer on delivery to the Buyer (notwithstanding that the price for the goods shall not have been paid in whole or in part) and the Seller shall have no right of retention of title over the goods.
5. DELIVERY SCHEDULES:
Buyer shall not be required to make payment for goods delivered to Buyer that are in excess of quantities specified in Buyer's delivery schedules. Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which shall entitle Seller to a modification of the price for goods or services covered by this contract. Where quantities and/or delivery schedules are not specified, Seller shall deliver goods in such quantities and at such times as Buyer may direct. Accordingly, the Supplier agrees to pay (or have deducted from its invoice) 0.5% of the Supplier's price for the goods supplied by way of liquidated damages for each day delivery is overdue. If the Supplier is still overdue after 10 days, the Buyer may immediately terminate this purchase order by a notice to that effect to the Supplier or otherwise exercise any of the rights given to it under clause 14.
6. PREMIUM SHIPMENTS:
If Seller's acts or omissions result in Seller's failure to meet Buyer's delivery requirements and Buyer requires a more expeditious method of transportation for the goods than the transportation method originally specified by Buyer, Seller shall ship the goods as expeditiously as possible at Seller's sole expense.
7. CHANGES:
Buyer reserves the right at any time to direct changes, or cause Seller to make changes, to drawings and specifications of the goods or to otherwise change the scope of the work covered by this contract including work with respect to such matters as inspection, testing or quality control, and Seller agrees to promptly make such changes. Buyer shall equitably adjust any difference in price or time for performance resulting from such changes after receipt of documentation in such form and detail as Buyer may direct. Any changes to this contract shall be made in accordance with Clause 33.
8. SUPPLIER QUALITY AND DEVELOPMENT; INSPECTION:
Seller agrees to participate in Buyer's supplier quality and development program(s) and to comply with all quality requirements and procedures specified by Buyer, as revised from time to time. In addition, Buyer shall have the right to enter Seller's facility at reasonable times to inspect the facility, goods, materials and any property of Buyer covered by this contract and if the Buyer is of the reasonable opinion that the manufacture is not being made according to its requirements, it may (without liability on its part) require the production be halted until the incorrect method of manufacture is rectified. Buyer's inspection of the goods whether during manufacture, prior to delivery or within a reasonable time after delivery, shall not constitute acceptance of any work-in-process or finished goods.
9. NONCONFORMING GOODS:
Seller acknowledges that Buyer will not perform incoming inspections of the goods, and waives any rights to require Buyer to conduct such inspections. To the extent Buyer rejects goods as nonconforming, the quantities under this contract will automatically be reduced unless Buyer otherwise notifies Seller, and the Buyer otherwise reserves its rights in respect of the Seller's breach being computing the loss or damage which the Buyer may suffer as a result of the delivery of non-conforming goods, the Buyer in addition shall be entitled to claim all costs of rectification and all added value or processing costs incurred prior to the discovery that the goods are non-conforming. Buyer will hold Nonconforming goods in accordance with Seller's reasonable instructions at Seller's risk. Seller's failure to provide written instructions within 10 days, or such shorter period as may be commercially reasonable under the circumstances, after notice of nonconformity shall entitle Buyer, at Buyer's option, to charge Seller for storage and handling or to dispose of the goods without liability to Seller. Payment for nonconforming goods shall not constitute an acceptance of them, limit or impair Buyer's right to assert any legal or equitable remedy, or relieve Seller's responsibility for latent defects.
10. FORCE MAJEURE:
Any delay or failure of either party to perform its obligations shall be excused, if and to the extent that, it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, including, but not limited to, acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, terrorism, inability to obtain power, material, equipment or transportation caused by a general shortage affecting the region or sector in which Seller operates, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party as soon as possible after the event or occurrence (but in no event more than 10 days thereafter). During the period of such delay or failure to perform by Seller, Buyer, at its option, may purchase goods from other sources and reduce its schedules to Seller by such quantities, without liability to Seller, or have Seller provide the goods from other sources in quantities and at times requested by Buyer, and at the price set forth in this contract. In addition, Seller at its expense shall take such actions as are necessary to ensure the supply of goods to Buyer for a period of at least 30 days during any anticipated labour disruption or resulting from expiration of Seller's labour contract(s). If requested by Buyer, Seller shall, within 10 days, provide adequate assurances that the delay shall not exceed 30 days. If the delay last more than 30 days or Seller does not provide adequate assurance that the delay will cease within 30 days, Buyer may immediately terminate this contract without liability.
11. WARRANTY:
Seller warrants that the goods covered by this contract will conform to the specifications, drawings, samples, or descriptions furnished to or by Buyer, and will be merchantable, of good material and workmanship and free from defect. In addition, Seller acknowledges that Seller knows of Buyer's intended use and warrants/guarantees that all goods covered by this contract that have been selected, designed, manufactured or assembled by Seller will be fit for purpose and of merchantable quality for a period of 3 years from date of delivery. The warranty period shall be that provided by applicable law, except that if Buyer offers a longer warranty to its customers for goods installed on vehicles, such longer period shall apply. Should the Seller fail to carry out any service in a professional and workmanlike manner, the Seller will rectify that breach at its own cost and without prejudice to the Buyer's right to claim loss or damage arising from such failed service.
12. INGREDIENTS DISCLOSURE; SPECIAL WARNINGS AND INSTRUCTIONS:
If requested by Buyer, Seller shall promptly furnish to Buyer in such form and detail as Buyer may direct (a) a list of all ingredients in the goods; (b) the amount of all ingredients; and (c) information concerning any changes in or additions to such ingredients. Prior to and with the shipment of the goods, Seller agrees to furnish to Buyer sufficient warning and notice in writing (including appropriate labels on the goods, containers and packing) of any hazardous material that is an ingredient or a part of any of the goods, together with such special handling instructions as may be necessary to advise carriers, Buyer, and their respective employees of how to exercise that measure of care and precaution that will best prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the goods, containers and packing shipped to Buyer.
13. INSOLVENCY:
Either party may immediately terminate this contract without liability to the other if any of the following or any other comparable events: (a) insolvency of a party; (b) filing of a voluntary petition in bankruptcy by a party; (c) filing of any involuntary petition in bankruptcy against a party; (d) appointment of a receiver or trustee for a party; or (e) execution of an assignment for the benefit of creditors by either party, provided that such petition, appointment or assignment is not vacated or nullified within 15 days of such event.
14. TERMINATION FOR BREACH OR NONPERFORMANCE:
In addition to any other right or remedy available to it Buyer reserves the right to terminate all or any part of this contract, without liability to Seller, if Seller: (a) repudiates or breaches any of the terms of this contract; (b) fails to perform services or deliver goods as specified by Buyer; (c) fails to make progress so as to endanger timely and proper completion of services or delivery of goods; and does not correct such failure or breach within 10 days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying such failure or breach.
15. TERMINATION FOR CONVENIENCE:
In addition to any other rights of Buyer to terminate this contract, Buyer may, at its option, immediately terminate all or any part of this contract, at any time and for any reason, by giving written notice to Seller. Upon such termination, Buyer shall pay to Seller the following amounts without duplication: (a) the contract price for all goods or services that have been completed in accordance with this contract and not previously paid for; and (b) the actual costs of work-in-process and raw materials incurred by Seller in manufacturing the goods or supplying the services to date of termination to the extent such costs are reasonable in amount and are properly allowable or apportionable under generally accepted accounting principles; less however, the sum of the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer-s written consent, and the cost of any damaged or destroyed goods or material. Buyer will make no payments for finished goods, work-in-process or raw materials fabricated or procured by Seller in amounts in excess of those authorized in delivery releases nor for any undelivered goods that are in Seller's standard stock or that are readily marketable. Payments made under this Clause shall not exceed the aggregate price payable by Buyer for finished goods that would be produced by Seller under delivery or release schedules outstanding at the date of termination. Except as provided in this Clause, Buyer shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by Seller's subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, or general and administrative burden charges from termination of this contract. Within 60 days from the effective date of termination, Seller shall submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit Buyer's audit, and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall request. Buyer or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim of Seller.
16 INTELLECTUAL PROPERTY:
16.1 All intellectual property rights in designs, drawings and technical data supplied by the Buyer to the Seller shall remain the property of the Buyer, shall be used only for the purpose of the contract to which they relate and all such drawings, designs and technical data shall be returned to the Buyer immediately upon request or on termination of the contract.
16.2 Seller agrees: (a) to defend, hold harmless and indemnify Buyer, its successors and customers against any claims of infringement (including patent, trademark, copyright, industrial design right, or other proprietary right, or misuse or misappropriation of trade secret) and resulting damages and expenses (including attorney's and other professional fees) arising in any way in relation to the goods or services contracted, including such claims where Seller has provided only part of the goods or services; Seller expressly waives any claim against Buyer that such infringement arose out of compliance with Buyer's specification; (b) that Buyer or Buyer's subcontractor has the right to repair, reconstruct, or rebuild the specific goods delivered under this contract without payment of any royalty to Seller; (c) that parts manufactured based on Buyer's drawings and/or specifications may not be used for its own use or sold to third parties without Buyer's express written authorization; and (d) to the extent that this contract is issued for the creation of copyrightable works, the works shall be considered "works made for hire", to the extent that the works do not qualify as "works made for hire", Seller hereby assigns to Buyer all right, title and interest in all copyrights and moral rights therein.
17. TECHNICAL INFORMATION DISCLOSED TO BUYER:
Seller agrees not to assert any claim (other than a claim for patent infringement) with respect to any technical information that Seller shall have disclosed or may hereafter disclose to Buyer in connection with the goods or services covered by this contract.
18. INDEMNIFICATION:
Seller shall indemnify and hold Buyer harmless from and against any liability, claims, demands, costs or expenses (including fees and disbursements as between solicitor and own client) loss, damage injury or death sustained or incurred by Buyer, its employees or any other person arising from or in connection with Seller's performance of the contract and its use of Buyer's property.
19. INSURANCE:
Seller shall maintain insurance coverage with carriers acceptable to Buyer and in the amounts set forth in the Special Terms. Seller shall furnish to Buyer either a certificate showing compliance with these insurance requirements or certified copies of all insurance policies within 10 days of Buyer's written request. Seller's furnishing of certificates of insurance or purchase of insurance shall not release Seller of its obligations or liabilities under this contract.
20. SELLER'S PROPERTY:
Unless otherwise agreed to by Buyer, Seller, at its expense, shall furnish, keep in good condition, and replace when necessary all machinery, equipment, tools, jigs, dies, gauges, fixtures, moulds, patterns and other items ("Seller's Property") necessary for the production of the goods. The cost of changes to Seller's Property necessary to make design and specification changes authorized by Buyer, shall be paid for by the Seller. The Seller shall insure Seller's Property with full fire and extended coverage insurance for its replacement value. Seller grants Buyer an irrevocable option to take possession of and title to Seller's Property that is special for the production of the goods upon payment to the Seller of its net book value less any amounts that Buyer has previously paid to Seller for the cost of such items; provided, however, that this option shall not apply if Seller's Property is used to produce goods that are the standard stock of Seller or if a substantial quantity of like goods are being sold by Seller to others.
21. BUYER'S PROPERTY:
All supplies, materials, tools, jigs, dies, gauges, fixtures, moulds, patterns, equipment and other items furnished by Buyer, either directly or indirectly, to Seller to perform this contract, or for which Seller has been reimbursed by Buyer, shall be and remain the property of Buyer and held by Seller on a bailment basis ("Buyer's Property"). Seller shall bear the risk of loss of and damage to Buyer's Property. Buyer's Property shall at all times be properly housed and maintained by Seller, at its expense, shall not be used by Seller for any purpose other than the performance of this contract; shall be conspicuously marked by Seller as the property of Buyer; shall not be commingled with the property of Seller or with that of a third person; and shall not be moved from Seller's premises without Buyer's prior written approval. Buyer shall have the right to enter Seller's premises at all reasonable times to inspect such property and Seller's records with respect thereto. Upon the request of Buyer, Buyer's Property shall be immediately released to Buyer or delivered to Buyer by Seller, either (i) F.O.B. Transport equipment at Seller's plant, properly packed and marked in accordance with the requirements of the carrier selected by Buyer to transport such property, or (ii) to any location designated by Buyer, in which event Buyer shall pay to Seller the reasonable costs of delivering such property to such location. When permitted by law, Seller waives any lien or other rights that Seller might otherwise have on any of Buyer's Property for work performed on such property or otherwise.
22. SERVICE AND REPLACEMENT PARTS:
Seller will sell to Buyer goods necessary for it to fulfill its current model service and replacement parts requirement at the price(s) set forth in this contract. During the 15-year period after Buyer completes current model purchases, Seller will sell goods to Buyer to fulfill Buyer's past model service and replacement parts requirements. Unless otherwise agreed to by Buyer, the price(s) during the first 3 years of this period shall be those in effect at the conclusion of current model purchases. For the remainder of this period, the price(s) for goods shall be as agreed to by the parties. When requested by Buyer, Seller shall make service literature and other materials available at no additional charge to support Buyer's service part sales activities.
23. REMEDIES:
The rights and remedies reserved to Buyer in this contract shall be cumulative with, and additional to, all other or further remedies provided in law or equity. Without limiting the foregoing, should any goods fail to conform to the warranties set forth in Clause 9, Buyer shall notify Seller and Seller shall, if requested by Buyer, reimburse Buyer for all and any direct and indirect incidental and consequential loss or damages caused by such nonconforming goods, including, but not limited to, fees and disbursements as between solicitor and own client, expenses and losses incurred by Buyer (a) in inspecting, sorting, repairing or replacing such nonconforming goods; (b) resulting from production interruptions, (c) conducting recall campaigns or other corrective service actions, and (d) claims for personal injury (including death) or property damage caused by such nonconforming goods. If requested by Buyer, Seller will enter into a separate agreement for the administration or processing of warranty charge-backs for nonconforming goods.
24. CUSTOMS; EXPORT CONTROLS:
Credits or benefits resulting or arising from this contract, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to Buyer. Seller shall provide all information necessary (including written documentation and electronic transaction records) to permit Buyer to receive such benefits or credits, as well as to fulfill its customs related obligations, origin marking or labelling requirements. All local content origin requirements, if any. Export licences or authorisations necessary for the export of the goods shall be the responsibility of Seller unless otherwise indicated in this contract, in which event Seller shall provide such information as may be necessary to enable Buyer to obtain such licenses or authorization(s). Seller shall undertake such arrangements as necessary for the goods to be covered by any duty deferral or free trade zone program(s) of the country of import.
25. SET OFF/RECOUPMENT:
In addition to any right of setoff or recoupment provided by law, all amounts due to Seller shall be considered net of indebtedness of Seller and its affiliates/subsidiaries to Buyer and its affiliates/subsidiaries; and Buyer shall have the right to setoff against or to recoup from any amounts due to Seller and its affiliates/subsidiaries from Buyer and its affiliates/subsidiaries all and any anounts due to Buyer and its affiliates/subsidiaries from Seller and its affiliates/subsidiaries.
26 CONFIDENTIALITY:
26.1 Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has contracted to furnish Buyer the goods or services covered by this contract, or use any trademarks or trade names of Buyer in Seller's advertising or promotional materials.
26.2 All information supplied by the Buyer shall be kept confidential by the Seller and shall not be copied or used for any purpose other than the supply of goods or services under the contract to which such information relates nor disclosed to any third party without the written consent of the Buyer. The terms and conditions of any order shall be strictly confidential.
27. COMPLIANCE WITH LAWS; FORCED LABOUR:
Seller, and any goods or services supplied by Seller, shall comply with all applicable laws, rules, regulations, orders, conventions, ordinances or standards of the country(ies) of destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods or services, including, but not limited to, those relating to environmental matters, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety. Seller further represents that neither it nor any of its subcontractors will utilize slave, prisoner or any other form of forced or involuntary labour in the supply of goods or provision of services under this contract. At Buyer's request, Seller shall certify in writing its compliance with the foregoing. Seller shall indemnify and hold Buyer harmless from and against any liability claims, demands or expenses (including attorney's or other professional fees) arising from or relating to Seller's non-compliance.
28. NO IMPLIED WAIVER:
The failure of the Buyer at any time to require performance by the Seller of any provision of this contract shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver by the Buyer of a breach of any provision of this contract constitute a waiver of any succeeding breach of the same or any other provision.
29. NON-ASSIGNMENT:
Seller may not assign or delegate its obligations under this contract without Buyer's prior written consent. The Buyer is a member of the group of companies whose holding company is GKN plc, and accordingly the Buyer may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of the GKN group and/ or may assign its rights and obligations to any other member of the GKN group and Seller hereby consents to any novation or assignment requested by Buyer to give legal effect to such arrangements.
30. RELATIONSHIP OF PARTIES:
Seller and Buyer are independent contracting parties and nothing in this contract shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
31. GOVERNING LAW; JURISDICTION:
This contract is to be construed according to the laws of the country (and state/province, if applicable) from which this contract is issued as shown by the address of Buyer, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Buyer may bring any action or proceedings by Buyer against Seller in any court(s) having jurisdiction over Seller or, at Buyer's option, in the court(s) having jurisdiction over Buyer's location, in which event Seller consents to jurisdiction and service of process in accordance with applicable procedures. Seller may bring any action or proceedings by Seller against Buyer only in the court(s) having jurisdiction over the location of Buyer from which this contract is issued.
32. SEVERABILITY:
If any term(s) of this contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term(s) shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this contract shall remain in full force and effect.
33. ENTIRE AGREEMENT:
This contract, together with the attachments, exhibits, supplements or other terms of Buyer specifically referenced in this contract, constitutes the entire agreement between Seller and Buyer with respect to the matters contained in this contract and supersedes all prior oral or written representations and agreements. This contract may only be modified by a contract amendment issued by Buyer.
34. SPECIAL TERM (AUSTRALIA) – GOODS AND SERVICES TAX
Seller shall amend the price for goods (other than goods supplied by an overseas Seller) and/or services supplied under this contract to reflect the amount of any goods and services taxes imposed by Australian law on the supply of such goods and/or services, provided that Seller shall:
(a) notify Buyer of the amounts of such taxes;
(b) provide Buyer with a tax invoice, as that term is defined in the relevant goods and services tax legislation, on the day following the date the goods are dispatched or the services are provided to Buyer; and
(c) do all things necessary (including, without limitation, registering with any required government authority) to enable Buyer to claim any credits or other benefits available for such taxes, or to otherwise comply with its obligations under the relevant goods and services tax legislation.
Buyer reserves the right to review this Clause after the introduction of any new legislation imposing any taxes contemplated by this Clause.
35. SPECIAL TERM (AUSTRALIA) – INSURANCE
For the purposes of this contract, the insurance coverage's required to be put in place by Seller under Clause 17 are as follows:
(a) any required insurance under any State or Commonwealth legislation requiring Seller to have insurance cover for its employees, including the Accident Compensation Act 1985 (Cth);
(b) general liability insurance (including both public and product liability) in an amount of:
i. not less than $5 million; or
ii. such greater sum as Seller may already insure; or
iii. such greater sum as Buyer may specify; and
(c) insurance to cover any goods, plant, equipment or other property of Buyer which is in the possession, custody or control of Seller.
36. SPECIAL TERM (AUSTRALIA) – PAYMENT:
Notwithstanding the provisions of Clause 2, Buyer reserves the right, at Buyer's discretion:
(a) to pay Seller by cheque or EFT.
37. SPECIAL TERM (AUSTRALIA) – INTELLECTUAL PROPERTY
For the purposes of Clause 14(d), the expression "works made for hire" means works made by persons as an employee (whether permanent, casual, part-time or fulltime). The Supplier undertakes to procure from any person (including any employee or sub-contractor) who is the author of any copyright work an express agreement that such author will not enforce any and all moral rights that they also may have, presently, or in the future to such copyright works.
38. SPECIAL TERM (AUSTRALIA) – PROVISION OF SERVICES
In the provision of services to the Buyer, the Supplier will:
(a) grant or procure the grant to the Buyer of an irrevocable, perpetual, royalty free, non-exclusive licence to use any and all software necessary to perform or connect with any service;
(b) ensure that only original parts will be used;
(c) ensure, and accordingly warrants, that all those involved in the provision of services will be properly qualified and skilled;
(d) whilst on the Buyer's premises, adhere to all safety regulations and directions otherwise provided to it; and
(e) warrant the service provided for a period of 6 months.
39. COMPLIANCE WITH RELEVANT REQUIREMENTS
39.1 The Supplier shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
(b) comply with the Customer's Ethics, Anti-bribery and Anti-corruption Policies that are set out in its website at: http://www.gkn.com/corporateresponsibility/Pages/the-gkn-values.aspx, in each case as the Customer may update them from time to time.
(c) have and shall maintain in place throughout the term of this agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
(d) promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this agreement;
(e) within one (1) month of the date of this agreement, and annually thereafter, certify to the Customer in writing signed by an officer of the Supplier, compliance with this clause [39] by the Supplier and all persons associated with it under clause [39.2]. The Supplier shall provide such supporting evidence of compliance as the Customer may reasonably request.
39.2 The Supplier shall ensure that any person associated with the Supplier who is performing services or providing goods in connection with this agreement does so only on the basis of terms equivalent to those imposed on the Supplier in this clause [39]. The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Customer for any breach by such persons of any of the Relevant Terms.
40. SUPPLIERS EQUIPMENT
“The Supplier shall ensure that any and all equipment that the Supplier or any of the Supplier’s Representatives brings to the Premises are in compliance with the applicable requirements in the CE/IEC Standard or such equivalent standard that is specified by the Supplier and agreed with GKN (where “Premises” shall mean any and all area that the Supplier may have access to for the performance of its obligations under this Agreement; “Representatives” of the Supplier shall mean any and all employees and agents of the Supplier or any other person that acts on behalf of the Supplier; and “CE/IEC Standard” shall mean the applicable standard of the International Electrotechnical Commission as updated and revised from time to time).”
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