General terms & conditions for purchase of carbide tools for recycling
These general terms and conditions (the “T&Cs” and jointly with a Sales Order (as defined below), the “Agreement”) shall apply to all sales of Carbide Tools from the Seller to [Sandvik AB], Reg. No. [556000-3468, SE-811 81] (“Buyer”). In case of inconsistency between these T&Cs and a Sales Order, these T&Cs shall prevail. Seller and Buyer are individually referred to as a “Party” and jointly the “Parties”.
1. General
Subject to Buyer’s acceptance of a Sales Order, Buyer agrees to purchase Carbide Tools from the Seller and Seller agrees to sell Carbide Tools to Buyer, pursuant to the terms and conditions of this Agreement.
Nothing in herein imposes on any of the Parties any obligation to purchase or sell Carbide Tools, and none of the Parties are granted any exclusivity whatsoever.
2. Definitions
“Affiliate” means, in relation to each Party, an entity (a) which is directly or indirectly controlling such Party; (b) which is under the same direct or indirect ownership or control as such Party; or (c) which is directly or indirectly owned or controlled by such Party. An entity shall be construed as being controlled by another if that other entity (i) has fifty per cent (50%) or more of votes in such entity, (ii) is able to direct its affairs and/or (iii) has the power to control the composition of its board of directors or equivalent body.
“Anti-Bribery Laws” is defined in Section 7.
“Carbide Tools” means used:
(i) carbide tungsten inserts and round-tools, with any coating, any dimension and whatever brand; and
(ii) solid carbide tools with overall length below 160 mm and Net Weight below 8 kg,
and explicitly excludes (together with any other material not qualifying as Carbide Tools, “Excluded Material”):
(i) ceramic and cermet inserts;
(ii) CBN and PCD inserts; and
(iii) HSS tools with or without carbide brazed tip.
“Code of Conduct” is defined in Section 7.
“Collection Point” means the site that Buyer directs as place of delivery.
“Confidential Information” means all knowledge or information in any nature or form, trade secrets, data, formulae, experience, improvements, ideas, technology, inventions, techniques, technical or commercial know-how, drawings, company lists and all other sensitive information, as well as all records in whatever form in relation to the foregoing, including manuals and instructions, which a Party may receive or obtain from time to time as a result of entering into or performing its obligations pursuant to this Agreement, relating to the other Party or its Affiliates;
“Container” means any container, barrel, box or similar to be used for the collection of Carbide Tools and shipment thereof.
”Net Weight” means the weight of the Carbide Tools, without the addition of any weight of Containers, pallets, packaging or other items.”
“Pick-Up Location” means the site specified by Seller in the Sales Order from where the Carbide Tools shall be delivered.
“Online Tool” is defined in Section 3.1.
“Sales Order” means an offer from Seller to sell Carbide Tools to Buyer.
“Seller” means the legal entity selling Carbide Tools hereunder.
“Term” is defined in Section 9.1.
3. Sales Orders and acceptance
3.1 All Sales Orders shall be submitted by Seller to Buyer via an online platform hosted by Buyer (the “Online Tool”), and include information about:
(i) Net Weight;
(ii) price;
(iii) number and type of parcels (boxes or pallets) to be collected;
(iv) Pick-Up Location and contact information; and
3.2 Buyer shall accept or reject a Sales Order. A Sales Order becomes binding upon Buyer only once accepted by Buyer.
4. Collection, transfer of ownership, representations, etc.
4.1 Buyer may free of charge provide the Seller with Containers to be used for shipment of the Carbide Tools from the Pick-Up Location to the agreed Collection Point. Buyer may also provide the Seller with collection cups to be used internally by the Seller. The Seller will inform Buyer of its need for Containers and collection cups via the Online Tool.
4.2 The Seller undertakes to sort, weigh and package the Carbide Tools in accordance with Buyer’s instructions available via the Online Tool.
4.3 Title and ownership of Carbide Tools transfer to Buyer:
(i) if Buyer shall collect the Carbide Tools at the Pick-Up Location: upon collection by Buyer at the Pick-Up Location, or
(ii) if Seller is responsible for transportation from the Pick-Up Location to the Collection Point: when the Carbide Tools are delivered to Buyer at the Collection Point.
4.4 The Seller represents that the Seller owns and has the right to sell the Carbide Tools to Buyer.
4.5 The Seller represents that only Carbide Tools are provided to Buyer hereunder. Buyer reserves the right to sort out any Excluded Material and is under no obligation to reimburse the Seller for such.
4.6 Buyer reserves the right to confirm Net Weight and make adjustments to the price for any deviations from the Net Weight specified in the Sales Order.
4.7 Buyer, and/or any third party appointed by Buyer, shall be entitled to visit the Seller’s premise(s) and any Pick-Up Location at any time to inspect, audit and review the Seller’s adherence to the terms and conditions of this Agreement. The Seller shall provide any relevant information in relation thereto upon Buyer’s request. In the event any inconsistency should be identified, reasonable corrective measures shall be taken by the Seller without delay.
5. Prices and payment
5.1 Prices shall be as per agreed Sales Order, adjusted as relevant for deviations in the delivered material compared to specification in relevant Sales Order, e.g. for Excluded Material and Net Weight deviations.
5.2 Prices:
(i) exclude value added tax or similar sales taxes/local equivalents, but include all other taxes and any duties applicable;
(ii) include all costs for the Seller’s sorting, weighing, packaging, storing and handling Carbide Tools and other costs and expenses related thereto; and
(iii) include shipment to agreed Pick-Up Location or Collection Point.
5.3 Buyer shall reimburse the Seller by way of either, in Buyer’s discretion:
(i) direct payment against an invoice issued by the Seller. A Seller invoice may be issued only after collection of Carbide Tools by Buyer at the agreed Pick-up Location or Collection Point. Payment shall be made by Buyer within 30 days from receipt of an undisputed and properly issued invoice.
(ii) direct payment against an invoice issued by the Buyer, so called self-billing. A self-billed invoice may be issued only after collection of Carbide Tools by Buyer at the agreed Pick-up Location or Collection Point. Payment shall be made by Buyer within 30 days from receipt of an undisputed and properly issued invoice.
(iii) crediting the relevant amount against a future invoice from Buyer to the Seller.
6. Liability and indemnification
6.1 The Seller is responsible for its own adherence to applicable laws and regulations, including but not limited to in relation to Carbide Tools, permits and notifications, and shall indemnify and hold Buyer, its Affiliates, representatives, agents and employees harmless in respect of any and all claims, damages, costs and reasonable expenses arising out of or in connection with any claims based on the infringement of any such laws or regulations.
6.2 The Seller agrees to hold Buyer, its Affiliates, representatives, agents and employees harmless from and against all consequences of all claims caused by death or by personal injuries or damage to any property or any other losses caused by Carbide Tools sold to Buyer or otherwise by breach of this Agreement, including damages caused to any property or products or equipment.
7. Anti-bribery laws and code of conduct
7.1 The Seller warrants that it shall, and shall procure that its affiliates and personnel shall, at all times, conduct business in compliance with: (i) the US Foreign Corrupt Practices Act, the UK Bribery Act 2010, the Swedish Penal Code and the anti-bribery laws of any territory in or from which the Seller provides Carbide Tools to Buyer, in each case as amended from time to time (“Anti-Bribery Laws”), as if such laws applied to them; and (ii) the Sandvik Supplier Code of Conduct as from time to time notified by Buyer available at https://www.home.sandvik/en/about-us/sustainable-business/supplier-management/supplier-code-of-conduct/ (“Code of Conduct“), on the basis that the standards set out in the Code of Conduct apply to the Seller.
7.2 Buyer shall have the right to review and audit, or appoint a suitable professional adviser to review and audit, during normal business hours and subject to reasonable prior notice, the Seller’s books and records, insofar as they relate to the Carbide Tools provided hereunder, for the purpose of assessing the Seller’s compliance with this Clause 7. Buyer or its representatives shall have the right to reproduce (at their cost) and retain copies of any such books and records; and Buyer may terminate any Sales Order, agreement or other relationship with the Seller with immediate effect, in whole or in part, by written notice to the Seller at any time, if in Buyer’s reasonable judgment; the Seller is in breach of any provision of this Clause 7. Termination in accordance with this Clause 7 does not affect (i) any accrued liabilities and rights of the Parties prior to such termination and (ii) any provision of these T&Cs, which is expressed to survive its termination.
7.3 Buyer shall be under no obligation to fulfil any outstanding payments (and may withhold such payments) under or pursuant to this Agreement, if such payments would, or at Buyer’s opinion be deemed to, constitute a breach by Buyer of any relevant Anti-Bribery Laws or otherwise would constitute a criminal offence by Buyer or accomplishment to a criminal offence. Buyer shall be entitled to withhold such payments until it is resolved whether Buyer has any obligation to fulfil such payments pursuant to the Agreement.
8. Confidential information
8.1 Unless otherwise agreed to in advance and in writing by the other Party, neither Party will, except as strictly required by law or court order, disclose any Confidential Information to any third party. Each Party may only use Confidential Information provided by the other Party to the extent required to perform under this Agreement.
8.2 The Parties may disclose the Confidential Information only to those of its employees or subcontractors who need to know such information for the performance under this Agreement, provided that, prior to any disclosure of such Confidential Information, such employee or subcontractor is made aware of the confidential nature of the Confidential Information and shall execute, or shall already be bound by, a non-disclosure agreement containing terms and conditions consistent with the terms and conditions of this Agreement. In any event, each Party shall be responsible for any breach of the terms and conditions of this Agreement by any of its employees or subcontractors. The Parties shall use the same degree of care to avoid disclosure of the Confidential Information as it employs with respect to its own confidential information of like importance, but not less than a prudent degree of care.
8.3 The confidentiality undertakings shall be unaffected by any termination of this Agreement and shall remain in force for five (5) years.
9. Term and termination
9.1 This Agreement shall enter into force upon submission by Seller of a Sales Order and shall remain in effect until the completion of the transactions conducted hereunder, or the earlier termination of this Agreement in accordance with the terms and conditions hereof (the “Term”).
9.2 Any provision that by the very nature of which should survive, including Section 6 and 8, shall survive any termination or expiration of this Agreement.
9.3 Either Party shall have the right to terminate this Agreement with immediate effect, if the other Party by act or omission commits a material breach of this Agreement, and such breach (if capable of remedy) remains un-remedied thirty (30) days from the defaulting Party having received a written notice requesting remedy or immediately thereafter if the defaulting Party cannot cure the omission or breach.
10. Force majeure
10.1 Neither Party shall be held liable or responsible to the other Party for failure or delay in fulfilling or performing any obligation under this Agreement when such failure or delay results from causes beyond the reasonable control of the affected Party, including but not limited to fire, floods, embargoes, war, acts of war, riots, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority. Either Party shall provide the other Party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure. The Parties shall mutually seek a resolution of the delay or the failure to perform as noted above.
11. Governing law and dispute resolution
11.1 This Agreement shall be governed by and construed in accordance with the laws of Sweden, without giving effect to any choice of law or conflict of law provisions.
11.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
11.3 The International Sales of Goods Act (CISG) (SFS 1987:822) (or any similar national law or code) shall not be applied to any provision of this Agreement.
12. General
12.1 This Agreement constitutes the entire agreement of the Parties on the subject hereof and supersedes all prior understandings and instruments on such subject. This Agreement may be supplemented, modified or amended by way of online terms or website terms (including shrink-wrap, click-wrap, click-through, click-accept).
12.2 No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision(s) of this Agreement.
12.3 Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.
12.4 The Parties are independent contractors and nothing in this Agreement shall be construed to create any partnership, joint venture, franchise or employment relationship between the Parties
12.5 The Seller shall not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any right, duty or obligation under this Agreement without Buyer’s prior written consent. Nothing in this Agreement shall prevent the assignment by Buyer of this Agreement or any right, duty or obligation hereunder to any third party.
