These Purchase Order Terms and Conditions (“Terms”) govern the purchase of the goods and services specified in the Purchase Order (“PO”) by HWS Solutions B.V. d/b/a Hiber (referred to herein as either "HWS Solutions B.V." or "Hiber"), either itself or though one of its affiliated entities (“Hiber,” "we," or "us") from the supplier of such goods and services (“Seller or “you”). You may accept the Terms by accepting the PO or beginning to perform under it, whichever you do first. You cannot change these Terms and we will not be bound by any terms you propose on your forms or otherwise except to the extent that we specifically accept them in writing.
Prices and Payment.
Unless otherwise stated on the PO, all orders are firm fixed price and all-inclusive. Invoices shall be dated no earlier than the date of shipment or the performance of the service. The payment terms shall be net 60 days, which shall begin as of the date of the invoice. Your invoice shall reference the correct PO number. In case we dispute any portion of the invoice, we may withhold any disputed amounts until the dispute is resolved, and we may offset any amounts you owe to us.
Change and Cancellation.
HWS Solutions B.V. reserves the right at any time to issue a written change or other amendment of the PO concerning any of the following: (a) specifications or drawings where the goods to be supplied are being specially designed or manufactured to the specifications or drawings provided by HWS Solutions B.V.; (b) quantity; (c) method of shipment or packaging; or (d) place or time of delivery. If any such change results in a variation in the PO price, delivery time, etc., an equitable adjustment in the PO price or other terms such as delivery date shall be negotiated in good faith between the parties, and the PO will be modified in writing accordingly. HWS Solutions B.V. may also terminate the PO for its convenience, in whole or in part, at any time prior to shipment of the goods or performance of the service. Such cancellation must be by written or electronic notice to the Seller. Upon receipt of the cancellation notice, the Seller shall promptly abide by the directions contained therein and shall take such action as necessary to cease work in a manner that minimizes costs and liabilities associated with the cancelled performance. Seller shall invoice HWS Solutions B.V. for, and HWS Solutions B.V. shall compensate Seller for, all reasonable unavoidable costs and liabilities incurred by the Seller.
All goods and services shall: (a) be free of defects, correctly labeled, made with new materials, and be of good quality and workmanship; (b) be performed diligently and in a professional and workmanlike manner; and (c) comply with all applicable laws, regulations, and industry standards of the countries in which the goods are manufactured and delivered or services are performed and/or will be used (provided we have advised you of those countries) and, where required, be certified as such by the relevant government authority in each such country. Without limiting the foregoing, the goods shall comply with all EU REACH and RoHS requirements and shall meet all applicable industry and governmental standards governing the use of conflict minerals and the exploitation of child labor. Where goods are being specifically designed for HWS Solutions B.V., the performance of such goods shall meet or exceed all specifications provided by HWS Solutions B.V.
Seller, for a period of one (1) year from the date of delivery to HWS Solutions B.V., warrants that the goods and services furnished will be free from defects in materials and workmanship, will be merchantable, and will be in full conformity with HWS Solutions B.V.’s specifications, drawings, and data as well as with Seller’s descriptions, promises, representations, and samples. Seller also warrants that the goods and services will be fit for HWS Solutions B.V.’s intended uses, provided Seller has reason to know of such uses, and that Seller will convey good and clear title to the goods, free of any liens, claims, and encumbrances.
Delivery of Goods.
Seller is responsible for the proper packaging, loading, and tie-down for shipping. Unless specified otherwise you will deliver the goods to us as stated in this PO under Incoterms 2010. If the delivery terms are not specified, they will be DDP to our "deliver to" location stated in this PO. If a fixed delivery date or term is stated in the PO, time is of the essence. In this case, if delivery or performance is delayed, HWS Solutions B.V. reserves the right, without extra cost or liability, to the following, at its discretion: (a) direct express shipment for which the Seller shall bear all increased costs; (b) direct acceleration of work for which Seller shall bear all additional labor and associated costs; (c) delayed payment equal to the period of delay; or (d) termination of the PO in whole or in part without penalty or liability. We may, if necessary to avoid breaching our own contractual obligations, purchase substitute goods or services at your cost, and you will compensate us for any other loss we incur. Seller will provide accurate and complete information on all shipping and customs documents, including a description of the goods, country of origin and manufacture, currency, delivery terms, and the actual manufacturing site. Title to the goods will transfer to HWS Solutions B.V. upon delivery of the goods to the location specified in the PO. Seller shall bear all risk or loss or damage until such transfer of title.
Inspection and Acceptance.
HWS Solutions B.V. will inspect all goods and services within a reasonable time upon delivery or completion and will notify you of any non-compliance with the Seller’s obligations under Article 3 or the warranty requirements under Article 4, provided that you may not claim forfeiture of HWS Solutions B.V.’s warranty rights in case of delayed inspection and notification. We may at our sole discretion reject and return to you at your expense all or any part of the goods delivered that are: (a) in excess of the quantity ordered and/or (b) which do not conform to the above-stated provisions. In the case of 5(b), you will, at our discretion, deliver replacement goods or services that conform to the PO and your obligations within a reasonable time. Absent such delivery, you shall refund to HWS Solutions B.V. all funds previously paid with respect to the non-conforming goods and services. At our discretion we may also purchase substitute goods or services at your cost. You will also compensate us for any losses or damages we incur in connection with any of the above. You will bear any costs we incur in connection with the delivery of replacement goods and services including transportation, removal, examination, installation, etc. Regardless of our obligations you are responsible for testing, inspection, quality control, and of providing certificates of analysis from accredited laboratories to us. In the case of any latent non-conformity or other defect in goods or services that is not discovered in the course of HWS Solutions B.V.’s initial inspection but that arises within the one-year warranty period, HWS Solutions B.V. shall be entitled to all remedies specified in this Clause 5.
Neither party shall be liable for delay or nonperformance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation acts of God, acts of civil or military authority, governmental orders, war, fire, explosion, labor unrest (except if limited to the party affected) or epidemic (“Force Majeure”). If either party is affected by Force Majeure, the affected party shall give prompt written notice to the other party, which shall cause, without penalty to either party, all obligations under the PO to be suspended for a period of up to thirty days. The party affected shall make reasonable efforts to mitigate the effects of Force Majeure. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure lasts and hinders the performance of said obligations (or part thereof). If the suspension caused by the Force Majeure exceeds such thirty-day period, HWS Solutions B.V. either may terminate the PO for convenience per Article 2 or suspend the PO for an additional period. Any termination settlement or equitable adjustment sought by Seller following a termination for convenience or suspension may not include any costs incurred during the thirty-day suspension period.
You will indemnify, defend and hold HWS Solutions B.V. (and our employees and agents) harmless from any and all losses, damages, fines, penalties, and expenses (including reasonable legal fees) arising from third party claims resulting from actual or alleged breaches of the PO and these Terms, negligent acts or omissions, or willful misconduct by you or your employees, agents, or subcontractors.
Seller shall indemnify, defend, and hold harmless, HWS Solutions B.V. and HWS Solutions B.V.'s customers and their respective officers, directors, agents, and employees against liability and losses including, without limitation, defense costs and attorneys' fees, for any allegation of or suit or action for infringement of any patent, copyright, trademark, or other intellectual property or proprietary right arising out of the provision, sale, or use of goods or services under the PO. Seller shall at its own expense either procure for HWS Solutions B.V., the right to continue using the alleged infringing goods or services, replace the alleged infringing goods or services with non-infringing goods or services, or modify the goods or services so that they become non-infringing. The foregoing indemnity shall not apply unless HWS Solutions B.V. informs Seller of the suit or action or other proceeding alleging infringement and gives Seller the opportunity as is afforded by applicable laws, rules, or regulations, to participate in the defense thereof.
You will maintain, at your cost, commercial general liability insurance covering your obligations under these Terms with combined single limits of at least EUR 4,000,000 per occurrence and in the aggregate. If your employees will be present on HWS Solutions B.V.’s premises, you will also maintain, at your cost, worker's compensation or local equivalent coverage as and in amounts required by applicable law, and automobile third party liability coverage with a combined single limit of EUR 1,000,000 per occurrence or of the amount required by applicable law of the country where the vehicle is in use, whichever is greater.
Dispute Resolution and Governing Law.
If the parties cannot resolve a dispute regarding the PO through good faith negotiation, it will be resolved by decision of the City Courts of The Netherlands located in Amsterdam, and the law of The Netherlands shall apply. The Vienna Convention on the International Sale of Goods will not apply.
Any non-public information that you learn about HWS Solutions B.V. in connection with the PO, including the fact of the PO, is our confidential information, and you may not disclose it to any third party. You may only use our confidential information to perform your obligations under the PO and may share it only on a need-to-know basis with your employees. We own the confidential information and you must return it and all copies to us or dispose of it in a manner approved by us if we request.
Assignment of Intellectual Property Rights.
Where goods are being specifically designed or developed for HWS Solutions B.V., all intellectual property rights, including trademarks, copyright, patent and design rights relating to such design or development shall belong to and automatically vest in HWS Solutions B.V., and you will, at our request and expense, execute or procure the execution of such confirmatory assignments as we may require.
Unless both parties agree otherwise in writing, each party will be responsible for its own respective taxes as required by law. If you are required to charge tax or we are required to withhold tax, then the required party will give the other the opportunity to demonstrate (and document) how such charge or withholding may be mitigated (for example, by providing a tax exemption certificate).
Conflicts and Entire Agreement.
If the PO references an existing agreement and there are discrepancies between such an agreement and these Terms, the terms of that agreement shall take precedence. Otherwise, these Terms represent the entire agreement between you and us with respect to the goods and services, and no prior discussion, agreement, conduct, or industry practice will affect it. Subsequent changes to the PO must be in writing and signed by both parties. We may modify these Terms by stating so in the PO.
The PO does not create a partnership or joint venture between the parties nor confer on any person who is not a party to this PO any right to enforce any term of the PO. Each party is an independent contractor, has no authority to bind the other party, and is solely responsible for its respective employees and subcontractors.
If any part of these Terms is declared by a court of competent jurisdiction to by invalid, then the parties agree that the provision will be deemed modified as necessary to make it valid while remaining as consistent as possible with the original language.
The PO is not exclusive, and either party is free to enter into similar agreements with anyone else, unless otherwise stated on the PO.
The completion or cancellation of the PO shall not affect any rights and obligations that by their nature should continue.