Unless otherwise agreed in the purchase order or purchase contract, the purchase of Goods or Services by Buyer shall be governed by these General Purchasing Conditions (the “Conditions”). To the extent the Conditions are in conflict with the specific terms of this Order or a purchase contract properly executed between the parties, the terms of the Order or the purchase contract will take precedence. All these terms (including any annexes) will be collectively referred as the “Agreement” and they will represent the full and complete understanding between Buyer and Supplier with respect to the subject matter thereof. In particular, any additional, conflicting or different terms and conditions set forth in any invoice, in any acknowledgment of an Order or in any other document sent by Buyer shall have no effect.
In the Agreement: “Buyer” shall mean the entity issuing the Order; “Supplier” shall mean the entity that sells the Goods or provides the Services; “Goods” shall mean the goods, products, (raw) materials, equipment, design, software, rental properties and/or related documentation to be supplied by Supplier under the Order; “Services” shall mean the services or related deliverables under the Order or the services related to the supply of Goods; and “Order” or “Purchase Order” shall mean the electronically generated or written document by Buyer containing the commitment of Supplier to deliver the Goods or provide the Services.
2. Applicable law and jurisdiction
The Agreement shall be governed by the laws of the country in which delivery is to be made with the exclusion of the provisions in such laws pertaining to conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods, done in Vienna on April 11, 1980 shall not apply. Any disputes arising out of or in connection with the Agreement shall be exclusively settled by the competent court in the location where delivery is to be made or, at Buyer’s sole option, the competent court in the place where Supplier has its principal place of business.
3. Prices and payment
Supplier shall deliver the Goods and/or perform the Services against the price(s) mentioned in the Agreement. Unless expressly stated to the contrary, prices shall include packaging, supervision and consumables, shall be exclusive of VAT but inclusive of any other tax, levy or duty and shall be fixed and firm for the duration of the Agreement.
In case an invoice is under dispute, Supplier has no right to postpone or suspend its obligations.
Buyer has the right to set off amounts it owes to Supplier or any of its affiliates, against amounts which Supplier or any of its affiliates owes to Buyer.
Unless expressly stated otherwise or unless as required under applicable law, Buyer shall pay Supplier’s invoice with net cash sixty (60) days after receipt of the invoice. Buyer can only process invoices which comply with Buyer’s invoice instructions. Other invoices will be returned to Supplier and will lead to a delay in payment without any liability to Buyer for interest or otherwise.
Neither party shall assign the Agreement or any part thereof without the written consent of the other party, except that Buyer may without the consent of Supplier assign the Agreement or any part thereof to (i) an affiliated company or (ii) a third party if such assignment or transfer is in connection with the transfer of all or a substantial part of the Buyer’s business to which the Agreement relates. A consent provided hereunder shall not release the assigning party from its obligations and liabilities under the Agreement.
Payment for the Goods or Services or inspection thereof shall not constitute acceptance hereof. All Goods and Services are received subject to Buyer's inspection and acceptance. Goods which are not in accordance with agreed specifications will be held for Supplier's instructions and at Supplier’s risk and expense. If instructions are not received within fifteen (15) days after notice of rejection, Goods may be returned at Supplier's expense. No goods returned shall be replaced without Buyer's written consent.
6. Force Majeure
Either Supplier or Buyer will be excused from the obligations of the Agreement to the extent that performance is delayed or prevented by any circumstance (except financial) beyond its control and unforeseeable at the time of entering into the Agreement, provided that the party claiming Force Majeure (a) immediately notifies the other party with reasonable details including any expected impact and expected duration of the Force Majeure event and (b) avoids any discrimination of the other Party in respect of other suppliers or buyers (including internal use) as the case may be.
7. Quality and Warranty
Supplier warrants that the Goods and Services shall be (a) new and of the quality and applicable specifications stated in the Agreement, (b) free from all defects in design, workmanship and materials, (c) in compliance with the legal requirements applicable in the country where the goods are manufactured or the Services are rendered, (d) free from liens, pledges, encumbrances and/or retention rights, and (e) produced and sold free of any patent infringements.
Supplier shall provide Buyer with a certificate of analysis, accompanying the shipping documents, per lot size of Goods supplied to Buyer, unless otherwise agreed in writing.
Unless explicitly agreed otherwise, deliveries will be made DDP (Delivered Duty Paid) place of business of Buyer, in accordance with the Incoterms 2020. Title to the Goods shall pass to Buyer at the moment the risk passes in accordance with the applicable Incoterm.
9.1 Supplier code of conduct
In the performance of its obligations hereunder, Supplier shall comply with Buyer’s Code of Business Conduct for Suppliers („Supplier Code of Conduct“) available at www.dow.com/about/supplier/code.htm. Alternatively, Supplier may comply with Supplier’s own code of conduct if it is reasonably deemed as substantially similar to Supplier Code of Conduct.
Supplier represents and warrants that it will not make any payments of money nor will it permit anything of value to be offered, promised, or paid – directly or indirectly- to any official political party, party official, or candidate or political office to induce such officials to use their influence with a government or instrumentally to obtain an improper business advantage for Buyer. If Supplier should ever become concerned that a possible violation of any of the above requirements may have occurred, whether by one of Supplier’s representatives, a Buyer representative, a third-party representative or contractor providing services to Buyer, Supplier shall immediately notify Buyer.
9.3 Export control
Supplier will not export or re-export any technology, software, or products received from or developed for Buyer, or the direct products of that technology, software, or products, in violation of any applicable government’s export-control or customs laws or regulations, including those of the United States of America and of the European Union. This obligation survives termination of this Agreement
9.4 Data Protection
Supplier expressly agrees to receive, process, use, transfer, or otherwise handle any data from Buyer or Buyer Affiliates containing personal data solely to the limited extent necessary to supply the Goods or provide Services under this Agreement in a confidential manner and in accordance with applicable law. In the event that Supplier becomes aware of a security breach involving personal data received, processed, used, or otherwise related to this Agreement, Supplier will promptly notify Buyer of such breach in writing and cooperate in good faith with Buyer in any related investigation, notification process, or commercially reasonable action requested by Buyer.
To the extent the Goods or any of the substances contained in the Goods fall within the scope of REACH, Supplier confirms and represents that the Goods and/or substances used as raw materials for the production of the Goods shall comply with the requirements of REACH and Supplier further represents that, to the extent required under REACH, the Goods or any of the substances contained in the Goods is or will be timely (pre-) registered and will remain (pre-)registered for Supplier’s use(s), so that Supplier is always considered as a downstream user according to REACH. Supplier declares to be informed of all actual and potential use(s) of the Goods by Supplier and by the customers of the Supplier. Supplier shall not consider the Goods and/or substances contained therein as an intermediate.
To the extent the Goods or any of the substances contained in the Goods, require authorization, Supplier shall ensure that an authorization is timely obtained and maintained. In this respect, Supplier shall keep Buyer informed about the status of the authorization process, including information on the inclusion on the candidate list and Annex XIV and the information as specified in Article 57 of REACH.
Upon request from Buyer, Supplier will promptly provide Buyer with a written acknowledgement of pre-registration or, when relevant, of registration or authorization of the substances contained in the Goods sold or to be sold to Buyer. Supplier remains responsible for all information provided in relation with compliance of the Goods sold or to be sold to Buyer, with REACH.
Supplier will not disclose information obtained from Buyer or any of its affiliates, to third parties, including for REACH compliance purposes without prior authorization of Buyer.
Prior to the shipment, Supplier must send to the destination plant of Buyer an extended safety data sheet in the language of the destination plant. Supplier shall send updated versions of the safety data sheets as soon as they become available.
Supplier shall keep confidential and not disclose to any third party the terms and conditions of this Agreement and any information obtained through the application of this Agreement. This confidentiality obligations shall apply in particular to any drawings, models, tools, documents or other proprietary information received by Supplier for the purpose of performing under this Agreement.
If the Supplier fails to meet its obligations (including its warranty obligations or obligation to deliver in time), or Buyer reasonably believes that Supplier will not meet such obligations (including the event that Supplier becomes insolvent or otherwise unable to pay its debts or is declared bankrupt or ceases doing business as going concern or commences liquidation), then Buyer, without prejudice to any other rights or remedies it may have under the Agreement or at law, shall have the right to terminate the Agreement.
Buyer may in its sole discretion terminate the Agreement at any time prior to its agreed date of expiry upon written notice to Supplier. If Supplier is not in breach of the Agreement, then upon such termination Buyer shall pay Supplier all costs reasonably incurred in respect of Goods the subject of any Purchase Order, which have been produced or are in course of production but have not yet been supplied or invoiced and Services the subject of any Purchase Order which are in the course of being supplied but have not yet been rendered, prior to the date of termination, subject to Supplier’s duty to mitigate any loss. In no event shall the total of all payments to the Supplier exceed the agreed price for such Goods or Services. Other than as stated in this clause, Buyer shall have no liability for early termination.
To the fullest extent permitted by applicable law Supplier shall indemnify Buyer, and hold Buyer harmless, from and against all loss, claims, damages and liability arising from or relating to Supplier’s performance of the Agreement or any defects in the Goods or Services supplied thereunder, except to the extent that such loss, claims, damages or liability are caused by Buyer’s gross negligence or willful misconduct
If any provision of this Agreement is held invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. The parties agree to negotiate in good faith to modify such invalid, illegal or unenforceable provision consistent with the intent and spirit of this Agreement.
14. Electronic Systems for Transactions
Upon at least ninety (90) days’ written notice to the Supplier, Buyer may require that Supplier receive purchase order(s), submit invoice(s), and otherwise transact business through The Dow Chemical Company’s preferred electronic system provider (the “eProvider Network”). In that event, each Party, at its own expense, shall a) provide and maintain the equipment, software and services necessary to effectively and reliably transmit and receive purchase orders and invoices via the eProvider Network, b) be responsible to pay any and all fees associated with executing transactions through the eProvider Network, and c) be solely responsible for its relationship with the eProvider Network. In addition, Supplier shall be solely responsible for the cost of routing and storing information on the eProvider Network, which information or documents may be retrieved by Buyer at no additional charge to Buyer by Supplier.