1. Definitions and interpretation
The following terms have the following definitions:
GTCSP: the present agreement „General Terms and Conditions of Flashnet S.A.” for the Sale and Purchase of Goods and/or Services;
Affiliate: any entity which controls directly or indirectly, is controlled by, or is under common control, with a Party;
Contract: a written agreement and/or the Order for the Purchase of Good or Services by the Client from the Supplier/Service Provider, which will refer to these GTCSP, as well as any other document sent by the Client and/or the Supplier/Service Povider in order to be part of the Contract, which has been negotiated by the Client and the Supplier/Service Provider;
Client: the party that orders the Goods and/or the Services from the Supplier/Service Provider;
Client Data: any data or information, including Personal Data, transferred to the Supplier/Service Provider, during the preparation or execution of the Contract, regardless if this data or information refers to the Client, his Affiliates or to his clients/supplier;
Delivery: the delivery of Goods and/or Services by the Supplier/Service Provider in accordance with Article 5.1;
Place of Delivery: The warehouse, factory or other places designated by the Client for psyhical delivery of the Good and/or Services, which can be the premises of one of the Client Affiliates (including the location that can be mentioned in any relavant pricing list) or third party suppliers of goods or logistics, or in case no location is mentioned, Client secondary office;
Embeded Software: the software necessary for the usage of the goods embeded and delivered as an integral part of the goods;
Goods: articles that will be delivered by the Supplier/Service Provider according to the provisions of the Contract and/or all materials, documents or any element to be delivered which are the result of the Services Provided by the Supplier/Service Provider according tot the Contract, concluded in any form and on any support, including without limitation data, diagrams, drawings, reports and specifications;
Intellectual property rights: (a) patents, utility models, copyrights, database rights and rights in trademarks, trade names, designs, know-how and presentations of inventions (registered or unregistered); (b) applications, reissues, confirmations, renewals, extensions, divisions or continuations of any of these rights; and (c) all other intellectual property rights and similar forms of protection worldwide;
Order: Client’s Order issued to the Supplier/Service Provider for the Sale and Purchase of Goods and/or Services, including any order to purchase issued electronically;
Party and or Parties: The Client and/or the Supplier/Services Provider, named individually or together by case;
Personal Data: Any data or information referring to a identified or identifiable natural person;
Services: the Services that will be provided by the Supplier/Service Provider in accordance with the Contract;
Supplier/Service Provider: the Party that supplies the goods or provides the Services to the Client (or to any Affliate of the Client at a relevant Place of Delivery);
Change Request (Change Instructions): a modification of the Order in order to amend, reduce, add or change in any way the Order or any part of it.
1.1 References to the clauses are reference to the clauses of these GTCSP.
1.2 Headlines are used for simplification and do not affect FLASHNET S.A. interpretatation.
2. Applicability
2.1 The present GTCSP represent the terms and conditions negotiated between the Client and the Supplier/Service Provider after the exchange of essential information between the Parties.
2.2 Except the case in which they have been expressively negotiated between the Client and the Supplier/Service Provider, no term or condition included or sent in the offers, confirmation, acceptance, and specifications of the Supplier/Service Provider or in similar documents will be part of the Contract.
2.3 The Supplier accepts the Contract either expressively through wrriten declaration, either implicitely through the execution of the Contract in whole or in part.
2.4 Any modification of the Contract must be done in writing.
3. Supplier Responsabilities
3.1 The Supplier/Service Provider will deliver the Goods and will provide the Services:
3.1.1 in respect to the applicable laws and regulations;
3.1.2 in accordance to the provisions of the Contract (including by supplying the necessary documentation) and according to the instructions received by the Client;
3.1.3 without any defects and free from any third party rights; and
3.1.4 fit for any purpose mentioned in the Contract and, in the absence of such defined purpose, fit for the purposes for which the Goods and/or the Services and normally used.
3.2 The Supplier/Service Provider will ensure that the Goods are properly packed in accordance with industry standards and applicable laws and regulations, in a manner adequate to store and protect the Goods, and sufficient to allow the safely inspection and unloading at the Place of Delivery.
3.3 Where the Client (or an Affiliate of the Client at the relevant Place of Delivery) identifies quality issues on the part of the Supplier/Service Provider, the Client (or the Client’s Affiliate) shall notify the Supplier/Service Provider accordingly. Without prejudice to other remedies available to Client under the Contract, Client may require Supplier/Supplier to conduct at Supplier’s/Service Provider’s risk and expense an analysis of the root/cause(s) for the quality related problems, such analysis shall be conducted and reported to Client within ten (10) calendar days of notification of the quality related problem(s). The Client reserves the right to conduct an audit (conducted by personnel nominated by the Client, which may include third party experts or personnel of the Client’s Affiliates) of the Supplier/Service Provider’s based on the results of the root/cause analysis or if the Supplier/Service Provider fails to comply with this Clause. The Supplier/Service Provider shall proactively provide advice to the Client if it becomes aware of any quality issues that may affect the Goods and/or Services, and the provisions of this Clause 3.3 shall otherwise apply as if the issue had been notified by the Client.
3.4 The Customer/Client may issue Change Request to the Supplier/Service Provider and the Supplier/Service Provider shall comply with such Change Request. If a Change Request results in an increase or decrease in the cost or time required to perform the Services or Goods, a fair and equitable adjustment shall be made to the Purchase Price or Delivery Schedule, or both, in writing. Failure by Supplier/Service Provider to request an adjustment under this Clause shall be deemed a waiver unless claimed within thirty (30) calendar days of Supplier’s/Service Provider’s receipt of the Change Request. Change Requests requested by the Supplier/Service Provider shall become effective only after written confirmation by the Client.
3.5 The Supplier shall not suspend or delay the Delivery of the Goods or the provision of any Services unless there is prior written approval from the Customer.
3.6 The Supplier/Service Provider assumes full and exclusive liability for any industrial injury or occupational disease suffered by its employees and subcontractors in connection with the supply of goods and/or services.
3.7 Supplier/Service Provider shall be individually and exclusively liable for any claims and/or lawsuits brought by its employees and/or subcontractors and, without limitation, shall defend, indemnify and hold harmless Client (and any relevant Affiliate of Client) for any claim, proceeding, action, fine, loss, cost, damage and expense arising out of or in connection with any such claims and/or lawsuits, and any failure to comply with the laws, regulations, codes of practice, guidelines and other requirements of any government or governmental agency applicable to Supplier/Service Provider, its employees and subcontractors. The Supplier undertakes to appear in court at its own expense if requested to do so by the Client, acknowledging its status as sole and exclusive employer, and to provide the Client (and/or any relevant Affiliate of the Client) with all documentation and information necessary to ensure the adequate legal defence of the Client or its Affiliates in court. The preceding sentence shall not apply where the liability or damage was caused by the gross negligence or wilful act of the Client.
The Client shall be entitled to make or procure the making of payments due to the Supplier’s / Service Provider’s subcontractors performing the Services or supplying the Goods under the Contract in order to avoid legal action, guarantees or liens. Such payments may be made by withholding Supplier’s / Services Provider’s credits, set-off or otherwise. The Supplier/Service Provider shall provide any assistance requested by the Client in respect of such payments and shall indemnify and hold harmless the Client and its Affiliates for any payments made.
4. Payments, invoicing
4.1 In exchange for the Goods delivered and/or Services rendered by the Supplier/Service Provider in accordance with the provisions of the Contract, the Client shall pay the Supplier/Service Provider the purchase price stated in the Contract, provided that the invoices meet the conditions defined in the Contract. Payment shall be made in the country where the Supplier/Service Provider is registered, into a bank account in the Supplier’s/Service Provider’s name. The price includes all taxes and duties (other than VAT or equivalent) and all costs of production, processing, storage and packaging (including the return of any packaging) of any Goods.
4.2 The Supplier/Service Provider shall send invoices in auditable format, in accordance with applicable law, generally accepted accounting principles and the Client’s specific requirements, containing at least the following information: Supplier’s / Service Provider’s name, address and contact person, including contact details; invoice date; invoice number; Order number and Supplier/Service Provider’s number; Client’s address; quantity; specification of Goods and/or Services; price (total invoiced value); currency; amount of tax or VAT; tax and VAT code; Authorised Economic Operator number (CUI and J) and/or Export Authorisation number and/or other customs identification number, if applicable; payment terms as agreed. The Supplier/Service Provider shall state the Purchase Order number on all invoices (in particular, but not limited to commercial, pro forma or customs invoices). In case of late payment or extension of the due date, a penalty/increase in the amount of the claim may be applied in accordance with the law.
4.3 Invoices must be sent to the billing address specified in the Contract (or as agreed with the Client).
4.4 The Client shall pay the invoice in accordance with the payment terms agreed under the Contract.
4.5 The Client will only reimburse additional expenses at the cost and to the extent agreed in writing.
4.6 Services charged on an hourly rate basis require written confirmation of the Supplier’s/Service Provider’s timesheets by the Client. The Supplier/Service Provider shall submit such timesheets to the Client for confirmation as instructed by the Client, but at the latest together with any related invoice. Confirmation of the timesheets shall not be deemed to be acceptance of any claim. The Client shall not be obliged to pay invoices on the basis of timesheets that are not confirmed by the Client in writing.
4.7 The Customer reserves the right to postpone or withhold payment for Goods and/or Services not provided in accordance with the Contract
5. Delivery, service execution
5.1 Unless otherwise agreed under the Contract, the Goods shall be delivered in accordance with INCOTERMS 2020 free carrier (FCA) at the Place of Delivery.
5.2 The Services will be provided to the Place of Delivery.
5.3 The Supplier/Service Provider shall, no later than the time of acceptance of the Contract, provide the following minimum information: number of packages and contents, customs tariff numbers of the country of dispatch and countries of origin for all Goods. For controlled Goods, the relevant national export control numbers must be provided and, if the Goods and/or Services are subject to U.S. export regulations, the U.S. Export Control Classification Numbers (ECCN) or International Traffic in Arms Regulations (ITAR) classification numbers must be specified. Proofs of preferential origin, as well as declarations of conformity and marks of the country of dispatch or destination, must be provided without request; certificates of origin must be provided upon request.
5.4 Goods will be delivered, and Services will be provided, during the Client’s working hours (or those of the requested Place of Delivery), unless otherwise requested by the Client.
5.5 Upon delivery, the Supplier/Service Provider (or its nominated carrier) shall provide the Client (or, if requested, any of the Client’s Affiliates at the Place of Delivery) with a Goods Consignment Note and other necessary export and import documents not referred to in Clause 5.3. Where the Client has approved partial delivery, that Goods Consignment Note shall include the outstanding balance.
5.6 Title to the Goods shall pass to the Client upon Delivery. To the extent that the Goods contain Embedded Software, ownership of such Embedded Software shall not be transferred to the Client, but the Supplier shall grant or – as the case may be – obtain from the third party owner, the Client and all users a worldwide, irrevocable, perpetual, transferable, non-exclusive, royalty-free right to use the Embedded Software as an integral part of such Goods and/or for the maintenance services of any such Goods. For the avoidance of doubt, the Supplier/Service Provider shall have no lien and the Supplier/Service Provider shall transfer title to the Goods without any warranty or charge (but the transfer of title and ownership of the Goods to the Client shall not relieve the Client of its obligation to pay for such Goods in accordance with the terms of the Contract).
6. Reception
6.1 Delivery of the Goods or provision of the Services shall not be deemed to be receipt of such Goods or Services by the Customer. The Client (or the Client’s designated Affiliate at the Delivery Location) shall have a reasonable time to inspect or test the Goods and/or Services and report any defects to the Supplier/Service Provider. If a defect in the Goods and/or Services could not reasonably be detected during inspection, the Client (or the Client’s designated Affiliate at the Place of Delivery) shall have a reasonable time to notify such defect after it has become apparent and/or to reject the Goods and/or Services.
6.2 The parties may agree on a certain acceptance procedure, in which case the acceptance shall be subject to the written acceptance record of the Client (or the Client’s designated Affiliate). The Supplier/Service Provider shall inform the Client (and any relevant Affiliate of the Client) in writing within a reasonable time when the Goods and/or Services are ready for acceptance.
6.3 The Customer may implement any corrective measure defined in the Contract for any rejected Goods or Services.
7. Delays
7.1 The Supplier/Service Provider shall deliver the Goods in accordance with any date or time, and at least in accordance with any performance terms specified in the Contract. If Delivery of the Goods or provision of the Services does not meet the agreed date(s), the Client may;
a) terminate the Contract în whole or in part;
b) refuse any subsequent delivery of Goods or provision of Services;
c) recover from the Supplier/Service Provider any expenses reasonably incurred by the Client (or any Affected Affiliate of the Client) in obtaining replacement Goods and/or Services from another Supplier/Service Provider;
d) claim compensation for any substantiated costs, losses, expenses or damages incurred by the Client (or any affected Affiliate of the Client) attributable to the Supplier’s delay;
e) claim damages as agreed under the Contract;
and it is agreed that the Client may select one or more such remedies, and costs of recovery or damages under any of Clauses 7.3 to 7.5 shall not preclude recovery by the Client of other costs or damages under other parts of this Clause 7.
8. Warranties and corrective measures
8.1 The Supplier/Service Provider warrants that the Goods and/or Services comply with the Contract, including, but not limited to, the Supplier’s responsibilities as defined in Clause 3.1.
8.2 The Supplier/Service Provider warrants that the Goods are new and unused at the date of Delivery and remain free from defects during the warranty period.
8.3 The warranty period shall be twenty-four (24) months from Delivery, or as provided in the Contract.
8.4 In the event of a breach of any warranty which is not remedied within forty-eight (48) hours of notice to the Client, or in the event of any other breach of the Contract, the Client shall have the right to implement any or all of the following remedies, at its discretion and at the Supplier’s / Service Provider’s expense:
8.4.1 give the Supplier the opportunity to carry out any additional work necessary to ensure the performance of the Contract;
8.4.2 require the Supplier immediately to repair or replace the defective Goods and/or Services;
8.4.3 carry out (or require a third party to carry out) any additional work necessary for compliance of the Goods and/or Services with the Contract;
8.4.4 refuse any subsequent Goods and/or Services;
8.4.5 require the Supplier to indemnify and hold harmless the Client (and any relevant Affiliate of the Client) for such damages as were incurred by the Client (or any Affiliate of the Client) as a result of the Supplier’s / Service Provider’s breach of the Contract;
8.4.6 Terminate the Contract, in which case:
8.4.6.1 the Client has no obligation to compensate the Supplier (including payment for Goods and/or Services that have been rejected); and
8.4.6.2 at the request of the Client, the Supplier/Service Provider shall refund to the Client any remuneration received from the Client for the Goods and/or Services and shall take back the Goods at the Supplier’s / Service Provider’s expense and risk; and
8.4.6.3 The Client may procure equivalent replacement goods and/or services from an alternative supplier (any increased costs incurred in this regard will be borne by the Supplier/Service Provider).
8.7 In the event of breach of any warranty, the entire warranty period will be reset for the defective Goods/Services from the date the remedy is completed to the Client’s satisfaction.
8.8 The rights and remedies available to the Client under the Contract are cumulative and do not exclude any rights or remedies available under law.
9. Intellectual property rights
9.1 Subject to Clause 9.2, the Supplier/Service Provider hereby grants to the Client and its Affiliates, or undertakes to procure the grant to the Client and its Affiliates, an irrevocable, transferable, sub-licensable, non-exclusive, royalty-free, worldwide license to use the Intellectual Property Rights in the Goods, including the Embedded Software, if any.
9.2 The Supplier/Service Provider hereby assigns to the Client (or shall assign to the Client’s nominated Affiliate) full ownership rights in any Intellectual Property Rights in the Goods resulting from the Services. The Supplier/Service Provider also agrees, at the Client’s request and at the Client’s expense, to take such further steps as may be necessary to register the Client’s (or its Affiliate’s or nominee’s) ownership rights in the Intellectual Property Rights.
9.3 The Intellectual Property Rights „IPR” in any Goods created by or licensed to the Supplier before or outside of a Contract (Pre-existing IPR) shall remain vested in the Supplier/Service Provider (or third party owner). To the extent that Pre-existing IPR is incorporated into any Goods resulting from the Services, Supplier grants, or agrees to obtain the grant by the Third Party Owner to the Customer and its Affiliates of, a worldwide, irrevocable, transferable, sub-licensable, non-exclusive, royalty-free licence to use the Pre-existing IPR as part of those Goods, including the right to improve, develop, sell, distribute, sub-licence or otherwise use such Pre-existing IPR.
9.4 The Supplier/Service Provider shall specify in writing and prior to Delivery all open source software contained in or used by the Embedded Software, if any, and seek the Client’s written approval. The Supplier agrees to replace at its expense any open source software components rejected by the Client with software of at least the same quality and functionality.
9.5 If any claim is made against the Client (or the Client’s Affiliates) that the Goods and/or Services infringe the Intellectual Property Rights of a third party, the Supplier/Service Provider shall, at its own expense but at the Client’s discretion: (i) obtain for the Client, the Client’s Affiliates and the Client’s customers, as applicable, the right to continue using the Goods and/or Services;
(ii) modify the Goods and/or Services so that they no longer infringe those rights; or
(iii) replace the Goods and/or Services with non-infringing equivalents. Otherwise, the Client shall be entitled to terminate the Contract and claim all sums which it, or any Affiliate of the Client, has paid to the Supplier for that purpose.
10. Conformity, Integrity
10.1 The Supplier shall provide the Goods and/or Services in accordance with all relevant laws, regulations and codes of practice.
10.2 Supplier represents and warrants that it fully complies and will continue to fully comply with all applicable laws, regulations, instructions and policies relating to trade and customs, including, but not limited to, satisfying all customs clearance requirements, proofs of origin, export and import licenses and necessary exemptions, and that it will file all necessary documentation with the relevant government agencies and/or information relating to the provision of services, release or transfer of goods, hardware, software and technology.
10.3 No material or equipment included in or used for the Goods and/or Services shall originate from any company or country subject to any relevant embargo issued by the authority of the country where the Goods and/or Services are to be used, or by an authority which otherwise has influence over the equipment and materials which form part of the Goods and/or Services. If any of the Goods and/or Services are or will be subject to export restrictions, it is the Supplier’s responsibility to immediately inform the Customer (and any relevant Affiliate of the Customer) in writing of the details of such restrictions.
10.4 Each Party warrants that it will not, directly or indirectly, and neither Party has any knowledge of any other person making, directly or indirectly, any payment, gift or other commitment to its customers, government officials or agents, directors and employees of each Party, or of any other Party, in a manner contrary to applicable law (including, but not limited to, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery and Corrupt Practices Act of 2010 and, where applicable, legislation adopted by Member States and Signatories implementing the OECD Convention on Combating Bribery of Foreign Public Officials) and shall comply with all relevant laws, regulations, ordinances and rules relating to bribery and corruption. Accordingly, the Client undertakes, to the extent that these provisions are applicable to it, with respect to Article 17.I. of Law no. 2016-1691, known as the Sapin II Law, on transparency, the fight against corruption and the modernization of economic life, to take measures for the prevention and detection of the commission in Romania or abroad of acts of bribery or influence peddling, in the manner provided for in Article 17.II. Nothing in the Contract shall make either Party or any of its Affiliates liable/responsible to reimburse the other Party for any such consideration given or promised.
10.5 Any breach of an obligation under this Clause 10 shall constitute a material breach of the Contract and shall entitle the other Party to terminate the Contract with immediate effect and without prejudice to any other rights or remedies available under this Contract or at law. Notwithstanding anything to the contrary in the Contract, each Party shall, without limitation, indemnify and hold harmless the other Party (and any affected Affiliate of the Customer) for all liabilities, damages, costs or expenses incurred as a result of any such breach and/or termination of the Contract or resulting from Supplier’s concealed export restrictions.
11. Confidentiality, data security, data protection
11.1 The Supplier shall keep strictly confidential all Client Data and any other information about the Client’s or its Affiliates’ business, products and/or technologies that the Supplier obtains in connection with the Goods and/or Services to be supplied (before or after acceptance of the Contract). The Supplier shall restrict the disclosure of such confidential material to those employees, agents, subcontractors or other third parties who need to know it in order to provide the Goods and/or Services to the Client. The Supplier shall ensure that such employees, agents, subcontractors or other third parties are subject to and comply with the same obligations of confidentiality that apply to the Supplier and shall be liable for any unauthorized disclosures.
11.2 Supplier shall apply appropriate safeguards, appropriate to the type of Customer Data to be protected, against unauthorized access to and disclosure of Customer Data and shall protect such Customer Data in accordance with generally accepted standards of protection in the relevant industry or in the same manner and to the same extent as it protects its own confidential information and proprietary information – whichever is higher. Supplier may disclose Confidential Information to Additional Authorized Recipients (which means authorized representatives of Supplier, including auditors, legal counsel, consultants and advisors), always provided that: (i) such information is disclosed strictly on a “need to know” basis; and (ii) such Additional Authorized Recipients sign a confidentiality agreement with Supplier with terms substantially similar to those in this Agreement or, if applicable, are required to comply with codes of professional conduct that ensure the confidentiality of such information. Supplier shall comply with, and shall ensure that Additional Authorized Recipients shall comply with, any security procedures, policies or standards made available to Supplier by Client or any of its Affiliates from time to time.
11.3 The Supplier shall not: (i) use the Client Data for any purpose other than for the supply of the Goods and/or Services; or (ii) reproduce the Client Data in whole or in part in any form except as required under the Contract; or (iii) disclose the Client Data to any third party, except to Authorized Additional Recipients or with the prior written approval of the Client.
11.4 The Supplier shall install and update at its own cost appropriate virus protection software and operating system security patches for all computers and software used in connection with the provision of the Goods and/or Services.
11.5 The Supplier shall inform the Client (and any affected Affiliate of the Client) without delay of any suspected data breach or other serious incident or irregularity involving the Client Data.
11.6 The Supplier agrees that the Client (and any affected Affiliate of the Client) may provide any information received from the Supplier to other Affiliates of the Client and third parties.
12. Personal data protection
12.1 Where the Client discloses Personal Data to the Supplier, the Supplier shall comply with all applicable data protection laws and regulations.
12.2 The Supplier shall implement appropriate physical, technical and organizational measures to ensure a level of security of Personal Data appropriate to the respective risk and ability to ensure the confidentiality, integrity, availability and ongoing resilience of the processing systems and services.
12.3 The Supplier agrees that it will not withhold or delay its consent to any changes to this Clause 12, which in the reasonable opinion of the Client or its Affiliates must be made to comply with data protection laws and regulations and/or guidance and advice from any relevant supervisory authority and agrees to implement any such changes at no additional cost to the Client.
12.4 The Supplier acknowledges that the processing of Personal Data in accordance with the Contract may require the conclusion of additional data processing or data protection agreements with the Customer or its Affiliates. To the extent that such additional agreements are not initially entered into as part of the Contract, at the request of the Client, the Supplier, its Affiliates or relevant sub-contractors shall promptly enter into any such agreement as designated by the Client and in accordance with mandatory law or a competent data protection or other competent authority.
13. Liability and indemnity
13.1 Without prejudice to applicable law, Supplier shall, without limitation, indemnify and hold harmless Client and any affected Affiliate of Client from and against all liabilities, damages, costs, losses or expenses incurred by Client (or such Affiliate of Client) as a result of Supplier’s breach of the Contract. The Supplier shall indemnify and hold harmless the Client and each relevant Affiliate of the Client, without limitation, for any claim made by a third party against the Client (or such Affiliate of the Client) in relation to the Goods and/or Services, including, without limitation, the alleged infringement by such Goods and/or Services of a third party’s intellectual property rights. At the Client’s request, the Supplier shall defend the Client (or any relevant Affiliate of the Client) against any third party claim.
13.2 The Supplier shall be responsible for the control and management of all of its employees, suppliers and/or subcontractors, and shall be liable for their acts or omissions as if they were the acts or omissions of the Supplier.
13.3 The Supplier shall maintain in force, and upon request provide evidence of, adequate liability insurance and employer’s liability insurance in respect of employees with reputable and financially sound insurers, which shall not, however, relieve the Supplier of any liability to the Client (or any Affiliate of the Client). The sum insured shall not be deemed to be a limitation of liability.
14. Termination
14.1 The Client may unilaterally terminate the Contract, in whole or in part, by notifying the Supplier in writing thirty (30) calendar days in advance. In this case, the Client shall pay the Supplier the value of the Goods and/or Services delivered but not paid for (provided that such Goods and/or Services comply with the Contract) and proven direct costs reasonably incurred by the Supplier for the undelivered Goods and/or Services, in no case more than the price for the Goods and/or Services agreed in the Contract. No additional compensation shall be due to the Supplier.
14.2 In the event of breach of the Contract by the Supplier, the Customer is entitled to terminate the Contract in accordance with Clause 8.4.
14.3 The Client may terminate the Contract with immediate effect by notice in writing if: (i) an interim order applies or is made, or a voluntary arrangement is approved, or a petition for a bankruptcy order is made or a bankruptcy order is made against the Supplier; or (ii) any circumstances arise which enable the court or a creditor to appoint a receiver or administrator or to make a winding up order; or (iii) other similar action is taken against or by the Supplier by reason of its insolvency or as a result of debt; or (iv) there is a change of control of the Supplier.
14.4 Upon termination, the Supplier shall immediately and at the Supplier’s expense return to the Client (or the Client’s Affiliate) all property of the Client or the Client’s Affiliate (including all Client Data, documentation and transfer of Intellectual Property Rights) then under the Supplier’s control and provide the Client (or its nominated Affiliate) with full documentation of the Goods and/or Services.
15. Force majeure
15.1 Neither Party (and any Affiliate of the Client who does not receive the Goods and/or Services) shall be liable for any delay or failure to perform its obligations under a Contract if the delay or failure results from an event of Force Majeure. Force Majeure means an event which could not have been foreseen by the affected Party (or the Client Affiliate) at the time of signing the Contract, is unavoidable and beyond the reasonable control of the affected Party (or the Client Affiliate), provided that it is unable to overcome such event despite all reasonable efforts and notifies the other Party (and, in the case of the Supplier’s impairment, any relevant Client Affiliate) within five (5) calendar days of the occurrence of the Force Majeure event.
15.2 If a Force Majeure Event exceeds thirty (30) calendar days, either Party may terminate the Contract immediately by written notice without liability. Each Party shall use reasonable efforts to minimize the effects of the Force Majeure Event.
16. Assignment and subcontracting
16.1 The Supplier may not assign, novate, transfer, encumber or subcontract the Contract or any part thereof (including the Client’s monetary claims) without the Client’s prior written approval.
16.2 The Client may assign, novate, transfer, sub-contract or otherwise deal with the Contract, in whole or in part, at any time and from time to time, to its Affiliates or any successor in interest or rights acquiring that part of the Client’s group of companies business to which the relevant Contract relates (and any such assignee may do the same).
17. Notifications
17.1 Any notice must be sent, duly signed, by registered letter, courier or email, to the relevant Party’s address as set out in the Contract and/or to such other address as may be notified in writing by that Party (including Client Affiliates operating at the relevant Delivery Locations). The email requires written confirmation by the receiving Party. The Supplier’s response, correspondence, information or documentation relating to the Contract must be provided in the language used in the Contract.
18. Waiver
18.1 Failure to enforce or exercise any term of the Contract shall not constitute a waiver of such term and shall not affect any subsequent right to enforce such term or any other term contained therein.
19. Applicable law and dispute resolution
19.1 The Contract shall be governed by the laws of the country (and/or state, as the case may be) in which the Client is registered, but excluding its conflict of laws rules and the United Nations Convention on the International Sale of Goods.
19.2 If the Client and the Supplier are registered in the same country, any dispute arising in connection with the Contract which cannot be settled amicably shall be submitted to the jurisdiction of the civil courts of Brasov.
19.3 If the Client and the Supplier are registered in different countries, any dispute arising in connection with the Contract which cannot be settled amicably shall ultimately be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce by an arbitrator appointed in accordance therewith. The place of arbitration shall be the place of registration of the Client. The language of the proceedings and of the arbitral award shall be the Romanian language.
20. Separability
The invalidity or unenforceability of any term of the Contract shall not adversely affect the validity or enforceability of the remaining terms. The Contract shall be enforced as if the invalid or unenforceable term had been replaced by a term of similar economic effect.
21. Maintenance of obligations
21.1 Provisions of the Contract which either are expressed to survive its termination, or by their nature or context are deemed to survive such termination, shall remain in full force and effect notwithstanding such termination.
21.2 The obligations set out in Clauses 8 (Warranties and Remedies), 9 (Intellectual Property Rights), 11 (Confidentiality, Data Security, Data Protection) and 12 (Liability and Indemnity) exist for an indefinite period and survive the expiry or termination of the Contract for any reason whatsoever.
22. Integrality
22.1 The Contract (which incorporates these GTCSP) and any documents incorporated into an Order or other agreements (referred to in writing) constitute the entire agreement between the Parties and supersede any prior agreement between them as to its subject matter.
22.2 In the event of any inconsistency between the documents making up the Contract, the following order of priority shall apply:
21.2.1. Additional Agreements to the Contract signed by the Client (to the extent that any deviations from the GTCSP are explicitly identified in that Contract); then
21.2.2. the Contract signed by the Client (to the extent that any deviations from the GTCSP are explicitly identified in that Contract); then
21.2.3. the present document GTCSP;
21.2.4. the Accepted Commercial Offer
and, for the avoidance of doubt, any terms and conditions referred to or referred to in any other document do not apply to or form part of any Contract.
23. Relationship between parties
23.1 The relationship between the Parties is that of independent parties acting at arm’s length and nothing in the Contract shall be construed to constitute the Supplier as an agent or employee of the Client (or any Affiliate of the Client) or so as to have any partnership with the Client or any Affiliate of the Client and the Supplier shall not represent itself as acting on behalf of the Client or its Affiliates.
23.2 The Contract does not involve any employment relationship between the Client (or any Affiliate of the Client) and the Supplier or between the Client (or any Affiliate of the Client) and the Supplier’s employees appointed to perform the Contract. The Client and its Affiliates shall be relieved of any liability or responsibility for labour, social security or taxes in respect of the Supplier and its employees appointed to perform the Contract.