These Standard Terms and Conditions (STC) shall apply to Vendors of La Filipina Uy Gongco Group of Companies (LFUG GOC) and such other subsidiaries, affiliates and entities on the LFUG GOC. Vendors are expected to adhere to the STC as stated.
1. TERMS OF AGREEMENT
1.1 The STC shall apply to purchases made pursuant to procurement or purchase orders, notes or instructions, any appendices or drawings attached or referred to in the procurement order (individually or collectively referred to as the “Order”), and any other document or written communication between the VENDOR and VENDEE. The terms of the STC shall be deemed incorporated in any agreement executed by the VENDOR and VENDEE, provided that in case of any inconsistency, the provisions of the agreement shall prevail over those of the STC.
1.2 VENDOR’s acknowledgment of the Order, whether through written or electronic acknowledgment, constitutes unconditional acceptance of the STC. Commencement of delivery or the general fulfillment of its obligations under the Order shall be deemed an acknowledgment of the Order.
1.3 The STC supersedes all prior discussions between VENDEE and VENDOR. No failure or delay by VENDEE in enforcing any provision of the STC or in exercising any right hereunder shall constitute a waiver thereof.
2. DELIVERY
2.1 VENDOR shall deliver to the VENDEE the goods or services covered by the Order (the “goods” or “services”) on the date/s and place/s required by the VENDEE. VENDOR shall not make any deliveries before the delivery date/s indicated in the Order, unless advanced delivery is requested or agreed to in writing by VENDEE.
2.2 Any delivery of goods or rendering of services shall strictly comply with all specifications required by VENDEE and/or accepted by VENDEE as provided in the agreed quote/proposal or previously approved specification sheets, approved samples, or notes and instructions, and generally accepted quality/certification/industry standards.
2.3 VENDOR shall pack, mark and ship the goods in such manner as to prevent damage during transport, and which facilitates unloading, handling and storage. All deliveries and performance of services shall be subject to VENDEE’s quality inspection and standards. VENDEE may refuse receipt of goods that are improperly packed, or refuse services that are being or are to be rendered, that do not meet VENDEE’s standards.
2.4 Title to the goods, free and clear of any encumbrances, shall pass to VENDEE upon delivery, unless otherwise agreed in writing by VENDEE, and provided that any defect that may be discovered subsequent to inspection during delivery shall entitle VENDOR to its remedies under these STC, contract and applicable laws.
2.5 Payment shall not constitute acceptance of the goods or services and shall not relieve VENDOR of any of its obligations as to VENDOR’s representation and warranties, or operate as a waiver of any defect or nonconformity with VENDEE’s requirements or its rights under these STC, law, equity or contract.
3. PRICE AND PAYMENT
3.1 VENDEE shall pay VENDOR the price indicated in the Order, which shall be inclusive of Value Added Tax, any sales tax, and any other taxes. All duties shall be for VENDOR’s account unless otherwise stated in the Order. All payments to VENDOR shall be subject to withholding taxes as required by applicable laws.
3.2 VENDOR shall comply with any enrollment and/or registration processes that may be required by VENDEE for purposes of processing electronic payments.
3.3 VENDEE shall pay VENDOR within thirty (30) days from the latest of (i) VENDEE’s receipt of the goods or services in good order; (ii) the date on which the correct Sales Invoice is received by VENDEE, and (iii) VENDEE’s written acceptance of the goods or services.
3.4 VENDOR shall submit the Sales Invoice, Delivery Receipt and any other document required by VENDEE to process payment to VENDEE no later than sixty (60) days from complete delivery of the goods or performance of services, failing which, VENDOR shall be deemed to have waived the right to collect payment.
3.5 VENDEE may, at any time, offset any amounts VENDOR owes to VENDEE or any of its affiliates or subsidiaries, against amounts VENDEE or any of its affiliates or subsidiaries may owe to VENDOR.
4. RIGHT TO INSPECT, AUDIT AND REQUIRE ADDITIONAL DOCUMENTATION
4.1 VENDEE shall have the right to inspect, examine or test the Goods at any reasonable time and place. The VENDEE shall have the right at any time to conduct a site visit to verify warehouse conditions, production quality and quantity, and compliance with VENDEE’s requirements.
4.2 Inspection, testing, site visits, and any other investigation or accreditation by VENDEE shall not relieve VENDOR of any of its obligations under the STC, nor constitute acceptance or approval of the goods or services, nor operate as a waiver of any defect or nonconformity with VENDEE’s requirements. 4.3 VENDOR shall submit independent third party certifications as may be required by VENDEE to substantiate compliance of the Goods with VENDEE’s standards and/or generally accepted quality standards. The submission of such certifications shall not relieve VENDOR of any of its obligations under these STC or operate as a waiver of any of VENDEE’s its rights therein.
5. ASSIGNMENT; SUBCONTRACTING
5.1 VENDOR shall not assign or subcontract any of its obligations under the Order to any third party without the prior written consent of VENDEE. If VENDOR is permitted to subcontract any of its obligations, it shall remain fully responsible and liable for the proper performance of its obligations under the Order. VENDOR shall ensure that any contract with a subcontractor allows VENDEE to exercise its rights under these STC against VENDOR’s subcontractors, but in no case shall this absolve VENDOR from any direct liability to VENDEE.
5.2 VENDEE may assign any Order to any of its affiliates or subsidiaries or to any third party in connection with any merger, acquisition, re-structuring, disposal, change of control, or sale or other transaction in relation to all or substantially all or part of VENDEE’s business and/or assets upon written notice to VENDOR.
5.3 Any assignment or subcontracting in violation of this Section shall be void. If VENDEE gives its consent to an assignment, VENDOR shall ensure that the assignment is implemented at its sole cost and without any disruption in the operations of VENDEE or deterioration in service levels.
6. SOFTWARE - For all software, including without limitation device drivers, firmware and any necessary software for the proper operation and support of the goods or services, VENDEE warrants and ensures that the use thereof by the VENDOR, VENDEE, or any party authorized by the VENDOR or VENDEE, shall not violate nor infringe any laws or government regulations. VENDOR shall deliver to the VENDEE all licenses for the use of the software. VENDEE is granted a perpetual, non-exclusive, non-transferable, irrevocable, royalty-free, worldwide right and license to use, reproduce, prepare derivative works of and distribute the software including, without limitation, distribution in electronic form. VENDOR shall provide all updates and modifications to the software during the term of the relevant agreement without additional charges. Any license fees for software shall be included in the procurement price or any other amounts payable under the Order.
7. TOOLS, MOLDS, DRAWINGS, AND OTHER MATERIALS -- Any specifications, drawings, information, tools, molds, masks, jigs, dies and other materials furnished, funded or paid for by VENDEE shall be used by the VENDOR only in the manner prescribed by the VENDEE. VENDOR shall not allow any third party to use said materials for any purpose. The VENDEE shall retain ownership of said materials and may demand the surrender of unconsumed materials at any time. If the materials are stored at VENDOR’s site, VENDOR is expected to exercise reasonable diligence in handling and storing said materials. These should be delivered to VENDEE promptly on VENDEE’s demand.
8. DEFAULT AND CONTINUITY OF SUPPLY -- VENDOR acknowledges that time is of the essence in the performance of its obligations and that each day of delay in the delivery of the goods or services will cause VENDEE substantial damage including lost profits, loss of goodwill, etc. If there is no accepted delivery of goods or services on the required date and place, VENDOR shall not be entitled to any payment. In addition, VENDEE shall, without prejudice to other available remedies, (a) consider the Order rescinded without need of judicial intervention and require VENDOR to pay liquidated damages in an amount equivalent to 100% of the value of the procurement order, or (b) choose to accept late delivery but impose the Penalty for Late Delivery of 1/10 of 1% for every day of delay (times the total value of the items delayed), until the goods or services are delivered to the satisfaction of VENDEE. In either case, the VENDEE may engage a third party to provide the goods or services, and VENDOR must provide and as applicable, allow the use of, all drawings, tools, and other materials required for such third party to manufacture the goods or perform the services for VENDEE, without prejudice to VENDEE’s right to claim for costs and expenses and/or damages arising from VENDOR’s default.
9. WARRANTY
9.1 The goods delivered or services rendered are of good quality, design, materials, construction and workmanship, and conform strictly to specifications, approved samples, industry standards, and all other requirements of VENDEE. VENDOR warrants that the goods or services are free from inherent, manufacturing and workmanship defects, and bugs and errors, within 1 year from acceptance thereof. If within 1 year from acceptance thereof, all or some goods delivered or services performed show any defects or sub-standard qualities, VENDOR shall, at VENDEE’s option (i) accept return of the goods; (ii) refund to VENDEE the price paid for the goods or services; (iv) replace the goods or repeat the performance of the services; or (iii) repair the goods or remedy the services. In all cases, the entire attendant cost of the return, replacement or repair of the goods or repetition of services shall be for the account of VENDOR, without prejudice to VENDEE’s claim for damages, including without limitation Liquidated Damages in an amount equivalent to 100% of the value of the purchase order, and VENDEE’s exercise of other remedies under these STC, law, equity or contract.
9.2 In addition to canceling the Order in connection with any defective goods or services, VENDEE may also cancel any other pending procurement order with VENDOR or any of its affiliates whether or not these are for the same goods or services.
10. INTELLECTUAL PROPERTY & CONFIDENTIALITY
10.1 VENDOR acknowledges that the VENDEE’s trademarks and trade name are the exclusive property of the VENDEE. VENDOR can use the same only when authorized and in the manner prescribed by VENDEE, and only for the purpose of meeting its obligations under the Order.
10.2 When supplied by the VENDEE, the concept applied in the manufacture or development of the goods or services belongs to the VENDEE. It shall have the sole right over the concept and the VENDOR cannot produce a product or perform services with similar concept or any derivative work without written authorization of VENDEE. Any customized goods or software and any intellectual property developed in collaboration with VENDEE shall be owned by VENDEE.
10.3 VENDOR shall, during the exploratory/discussion stage, disclose to VENDEE in writing all patent, trademark or, copyright, or applications thereof related to, or that may used in connection with the goods or services, as well as all licenses and/or franchises in connection therewith.
10.4 VENDOR shall keep in confidence all information it may acquire relating to the operation of the business of the VENDEE while performing the obligations established under this STC, including without limitation, launch dates and details about new goods, services or processes. Further, it shall ensure compliance of its directors, officers, employees, personnel and agents of the obligation to keep confidential said information. Violation by VENDOR’s director, officer, employee, personnel or agent shall be considered a violation by VENDOR.
11. INDEMNIFICATION
11.1 VENDOR shall defend, indemnify, and hold harmless the VENDEE and its directors, officers, employees, representatives and agents, and the directors, officers, employees, representatives and agents of the VENDEE’s affiliates or subsidiaries, against any and all claims, judgments, actions, debts or rights of action, suits, expenses, costs, loss and damage (including, without limitation, any direct or indirect consequential losses, arising from (i) any breach by VENDOR or its personnel of these STC, (ii) the use of the goods or services by VENDEE or its customers; (iii) any actual or alleged defects in the goods or services, whether in design, manufacture or otherwise, (iv) acts or omissions of VENDOR or its personnel; and (v) all claims made by VENDOR’s personnel.
11.2 In case of a claim, action, or suit alleging a defect in the goods or services, VENDOR shall not destroy or discard any engineering, architectural, manufacturing, design, or safety testing records relating to such goods or services without prior written consent of VENDEE.
12 CONFLICT OF INTEREST
12.1 VENDOR warrants that it has not given nor promised to give any sum of money, gift, or any material, favor or consideration to any official or employee of the VENDEE for the purpose of being awarded the Order. Violation of this warranty shall be sufficient ground for the VENDEE to unilaterally terminate the Order with immediate effect.
12. 2 VENDOR shall disclose to VENDEE any relationship its officials or employees may have, either by consanguinity or affinity, with officials or employees of the VENDEE.
13. NON-EXCLUSIVITY
13.1 The VENDOR is allowed to supply goods or services to the VENDEE on a non-exclusive basis. However, if VENDOR supplies to any of the VENDEE’s competitors any goods or services that are similar to the goods or services covered by the Order, VENDOR shall make a written disclosure of such fact to VENDEE within 7 days from delivery or performance to VENDEE’s competitor.
13.2 VENDEE has the right, at any time, to order and purchase goods or services that are identical and/or similar to the goods or services described in this Order from other vendors.
14. COMPLIANCE WITH LAW
14.1 VENDOR warrants that the goods or services will and have been designed, manufactured, delivered and/or performed in compliance with all applicable laws and regulations and VENDEE’s policies or guidelines and all applicable industry standards. For dangerous or hazardous goods, VENDOR shall provide written and detailed specifications of the composition of such goods and of all laws, regulations and other requirements relating to such goods.
14.2 VENDOR shall, within 5 days from notice, inform VENDEE in writing of any investigation, inspection, order, suit, or any other legal proceeding that may affect its performance of this Order.
15. NATURE OF VENDEE-VENDOR RELATIONSHIP - VENDOR is not an agent, legal representative, joint venture partner, or employee of VENDEE. It has no power to act for the VENDEE in any manner. Neither is there any employer-employee relationship between the VENDOR’s employees and the VENDEE.
16. SEPARABILITY - If a provision of these STC is held to be invalid or unenforceable, such provision shall be given no effect but without invalidating any of the remaining provisions of these STC. The Parties shall then use all reasonable efforts to replace the invalid or unenforceable provision/s.
17. TERMINATION
17.1 VENDEE may terminate the Order and/or any relevant agreement without cause by giving written notice to the VENDOR at least thirty (30) days before the intended date of termination.
17.2 VENDEE may terminate the Order and/or relevant agreement for breach of any of the provisions of these STC by written notice to the VENDOR, which termination shall take effect immediately.
17.3. VENDEE may terminate the Order at any time if it has reasonable ground to believe that the approval thereof was influenced by reason or on account of any commission, bonus, gift or any consideration whatsoever, monetary or otherwise, given to any officer, employee or agent of the VENDEE.
17.4 Termination of the Order and/or any relevant agreement for cause shall entitle the VENDEE to the payment by VENDOR of liquidated damages in an amount equivalent to 100% of the value of the Order, without prejudice to VENDEE’s right to recover other forms of damages, costs of suit and attorney’s fees.
18. CONSEQUENTIAL DAMAGES - In no event shall VENDOR be entitled to loss of profits, revenue, goodwill, or production downtime, or indirect, special, incidental, or consequential damages.
19. SUSPENSION OF PAYMENTS - In addition to other remedies under these STC, law, equity or contract, VENDEE shall have the right to suspend payments if (i) it has basis to believe that there has been fraud, negligence, delay or violation of any provision of these STC and/or or any contract between VENDOR and VENDEE or any of VENDEE’s affiliates and subsidiaries, in which case payment for goods or services delivered will be made upon resolution of the relevant issue, or (ii) VENDOR’s title or right over the manufacturing, distribution, sale, or other disposition of goods or over the right to perform the services is in question, in which case, the VENDEE shall have the right to suspend payment for all goods or services ordered from the VENDOR until the matter is fully resolved by the proper governmental authority.
20. GENERAL WARRANTIES
20.1 VENDOR has good title to the goods or the right to perform the services and has all required authorities, licenses and permits to manufacture, distribute, sell, or otherwise dispose of the goods or render the services to VENDEE. The goods are free and clear of any liens or encumbrances and not subject of or involved in any suit before the courts or administrative bodies. VENDEE shall perpetually have legal, valid, peaceful, and uninterrupted use, possession, and enjoyment of the goods upon delivery.
20.2 VENDOR has the expertise and experience to provide the Goods or perform the services in accordance with the requirements, standards and specifications of VENDEE, and will do so with due care and due diligence.
20.3 VENDOR is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it was incorporated and all jurisdictions where it operates. It has the power and authority to carry on its business as now conducted and to enter into the transaction/s contemplated in these STC and to perform its obligations hereunder. It has obtained and shall maintain all rights from third parties that may be required for the conduct of its business. The execution and performance of the transaction/s contemplated in these STC is not in violation of the rights of third parties or in breach of any agreement with third parties. All acts and other proceedings required for the valid and legal execution and performance of the transaction/s contemplated in these STC have been duly and properly taken. These STC has been duly executed by the VENDOR and constitutes a valid and binding obligation. The execution and performance of the transaction/s contemplated in these STC do not conflict with, or result in any violation of or default under, or require any consent, authorization or approval under, any provision of its incorporation documents, contracts under which it is bound, or applicable laws and regulations. VENDOR shall strictly comply with any agreement executed with third parties with reference to the goods or services, including but not limited to Licensing Agreements, Purchase Agreements or Manufacturing Agreements (each, a “Third-Party Agreement”). Any violation of the VENDOR thereof is a ground for termination by VENDEE of the Order and/or the relationship with VENDOR.
20.4 VENDOR shall comply with all laws, regulations, ordinances, and other governmental issuances and applicable to it and its business, including without limitation those related to labor and labor standards, occupational health and safety, environment, and anti-corruption.
21. FORCE MAJEURE - VENDEE shall have the right to suspend payment should VENDOR’s failure to comply with these STC be due to force majeure, provided that if the force majeure shall continue for a period of fifteen (15) consecutive days, VENDEE shall have the right to terminate the Order by giving written notice to the VENDOR, which notice shall be effective immediately.
22. PERFORMANCE BOND - A performance bond shall be posted by the VENDOR in favor of the VENDEE if required by the latter. The performance bond shall be forfeited by the VENDEE should the VENDOR fail to comply with its obligations under the Order.
23. JURISDICTION AND COURT VENUE - The STC shall be interpreted and governed by the laws of the Republic of the Philippines. Any legal action or proceeding relating to the STC, Order or relevant contract shall be brought before the competent courts of the cities of Manila or Iloilo, Philippines, to the exclusion of any other venue.
24. CUMULATIVE REMEDIES - All rights and remedies in this STC are cumulative and not exclusive. Without limiting the generality of the foregoing, it is understood that a claim for liquidated damages or the imposition of any penalty shall be without prejudice to VENDEE’s right to recover other forms of damages, costs of suit and attorney’s fees, as applicable.