General Purchase Terms and Conditions
In these general terms and conditions the following definitions apply:
SAS: SAS institute NV, Hertenbergstraat 6, 3080 Tervuren, registered in Belgium under enterprise number 0434.697.184, RPM Leuven, VAT number BE 0434.697.184
Seller: Any party that supplies goods to SAS, provides services to SAS or has agreed with SAS to do so, or any party to whom SAS has given an assignment of any other nature.
Agreement: Any agreement, including these general purchase terms and conditions, between SAS and the Seller of goods and/or services, or any other order assignment given by SAS to the Seller, or any related acts or legal acts.
2.1 Unless otherwise agreed, these general purchase terms and conditions are applicable to all requests, offers, assignments, purchase orders, order confirmations, agreements and other legal acts relating to the supply of goods, the provision of services or the execution of assignments or the performance of other work by the Seller for SAS.
2.2 The Seller’s general terms and conditions are hereby expressly excluded, unless it has been agreed otherwise in writing. If there is any conflict between the present Terms and Conditions and the Terms and Conditions applied by the Seller, then the present conditions shall prevail.
2.3 If the contents of the Agreement should differ from the contents of these general Terms and Conditions, then the contents of the Agreement shall prevail.
2.4 SAS shall not be bound by any change or other modification to the Purchase Order unless said change or other modification was accepted in writing by SAS. The Seller must provide SAS with a document for signature that specifies all effects of such a change on the quality, the quantity, the time frame etc. of the work. Seller must perform the agreed upon changes immediately and, pending discussions about remuneration adjustments, may not suspend his services. The Seller cannot unilaterally change the scope of the Purchase Order.
2.5 The purchase order must be in writing. The order is sent by mail, fax, e-mail or any other (electronic) communication tool. Verbal orders are invalid.
2.6 The Purchase Order number or reference number must be stated on all documents, especially on all invoices and credit notes.
3.1 The Seller shall be responsible for all applicable taxes, charges and costs of any kind, including but not limited to charges for shipping, handling, packaging or insurance unless otherwise agreed in writing by SAS.
3.2 SAS will pay only those undisputed fees that are expressly authorized and do not exceed the maximum total fees and cost stated on the Purchase Order. Invoices are payable within thirty (30) days of the end of the month of the invoice date unless otherwise specified on the Purchase Order. Payment does not in any way imply either acceptance or agreement by SAS that the products and/or services are conform to the terms and conditions of the Agreement and shall in no way imply a waiver of any right arising from the Agreement.
3.3 No travel or other expenses are authorized under these Terms and Conditions. If reimbursement of travel or other expenses is to be authorized it must be expressly included as part of an executed Purchase Order/ SOW.
3.4 Under no circumstances is the Seller entitled to suspend or interrupt any deliveries or services in case of late or incomplete payment under any agreement by SAS.
4.1 The Seller warrants that it has, and will continue to have during the term of the Agreement, the required skills, experience, licenses and permits required for the proper performance of the Agreement. Seller shall insure that its personnel acts responsibly in all circumstances and is of an irreproachable conduct.
4.2 In addition to its standard warranties, the Seller warrants and represents that the goods to be supplied or the services to be provided will confirm to the specifications set forth in the Agreement. Such warranties should at least include that:
(i) The goods have the characteristics that have been promised;
(ii) The goods are new and have no defects and are free of any third party rights;
(iii) The services are executed in a professional and workmanlike manner without interruption;
(iv) The goods or services are compliant with any requirements set by or by virtue of the law and/or applicable rules of self-regulation and/or requirements set by SAS, including requirements as to quality, health, safety, environment and advertising, both in the country of delivery as in the country for which they are destined..
(v) The goods and/or services are free and clear of all liens, claims, or encumbrances of any kind.
4.3 Should any goods or services not meet the provisions of article 4.2, then the Seller shall at its own expense and at the discretion of SAS and at SAS’s first request take all necessary action to render these goods or services compliant with said provisions.
4.4 When SAS determines that repairs or replacements are urgent when SAS has determined in all reasonableness after consultation with the Seller, that the Seller will fail to meet its warranty obligations, SAS is entitled to effect repairs or replacements itself at the expense of the Seller or to have a third party effect such repairs or replacements, without the Seller being discharged from its obligations under the Agreement.
4.5 Unless agreed otherwise in writing, a warranty period shall apply of at least five (5) years as from the date of delivery of the goods or the execution of the services.
5.1 Delivery of goods and services should take place in the manner and at the place and time set out in the Agreement.
5.2 The Seller is obliged to inform SAS immediately of any delay or foreseeable delay in the execution of the Agreement.
5.3 The specific quantity ordered must be delivered in full, unless partial deliveries are authorized by SAS. SAS reserves the right to reject or cancel all or any part of the order, delivered or undelivered if Seller does not make deliveries as specified or scheduled. Any unauthorized quantity is subject to return at Seller’s expense, the one exception being overruns and underruns associated with the printing industry
5.4 The delivery is completed at the moment when the goods have been received by or on behalf of SAS and SAS has signed for delivery. The latter signing does not affect the fact that the goods delivered can be rejected later under terms of article 6 of the general terms and conditions.
Furthermore, the Seller cannot derive any rights from the signing referred to in the first sentence of paragraph 5.1, and the signing therefore does not prevent SAS from exercising (for instance) its rights on the grounds (among others) of a default on the part of the Seller.
The Seller is not entitled to suspend its delivery obligation if SAS fails to perform one or more of its obligations.
6.1 The execution of services must be effected in the manner and at the time as set out in the Agreement.
6.2 The provision of services is completed when SAS has confirmed in writing that the services provided have been performed according to the stipulations in the Agreement. The Seller cannot derive any rights from such confirmation and the confirmation therefore does not prevent SAS for exercising (for instance) its rights on the grounds (among others) of a default on the part of the Seller.
6.3 The Seller may not assign, transfer or subcontract the Purchase Order to third parties, in whole or in part, without prior written consent from SAS. No approval by SAS to subcontract any of the Services shall relieve Supplier of any of its obligations under these general Terms and Conditions. Seller shall be directly responsible for all Services performed by Seller personnel.
6.4 The Seller agrees that any services, set out in paragraph 6.3, shall be performed by the Seller, its employees, agents, suppliers or subcontractors, as independent contractors, and not as employees of SAS, and that such persons doing work shall not be considered or represent themselves as employees or agents of SAS
6.5 The Seller is not entitled to suspend the execution of services if SAS should fail to meet one or more of its obligations.
7.1 SAS is at all times entitled to subject the goods to be delivered to an inspection or to have these subjected to an inspection, or to investigate whether the services provided have been executed in conformity with the Agreement and these general Terms and Conditions. The Seller is obliged to give its full cooperation to the inspection or the investigation.
7.2 In the event of rejection SAS shall inform the Seller of the rejection. SAS shall store the rejected goods, or have the goods stored, at the risk and expense of the Seller. If the Seller has not taken back the goods within a period of 14 days after SAS has informed the Seller that goods delivered have been rejected, then SAS is entitled to return the goods to the Seller at the Seller’s risk and expense, without the Seller’s approval being required. If the Seller should refuse to take delivery of the goods, SAS is entitled to store, sell or destroy the goods at the risk and expense of the Seller.
7.3 The Seller cannot derive any rights from the results of an inspection or investigation as referred to in article 7.1 or from the non-occurrence of an inspection or investigation.
7.4 SAS is never bound by any period set by the Seller in which SAS should inform the Seller that the goods delivered have been rejected or after which SAS can no longer lodge a complaint.
8.1 Ownership and risk of goods are transferred to SAS at the moment of delivery, unless (i) it has been agreed otherwise or (ii) the goods are rejected by SAS upon or after delivery (under article 7 of these general terms and conditions).
8.2 The Seller waives any retention rights it may have.
8.3 The Seller will take out insurance against transit damage, at its own risk and expense.
8.4 SAS is not responsible for lost or damaged products leased or consigned to SAS unless the loss or damage is caused by SAS’s own negligence.
9.1 Any failure of the Seller to meet its obligations entitles SAS to oblige the Seller to undo partially or fully the failure and/or its consequences at the risk and expense of the Seller.
9.2 The Seller is liable for any loss that is suffered by SAS and/or any subsequent purchasers or users due to a failure of the Seller to meet its obligations and/ or due to any act or failure to act by the Seller or by the Seller’s staff or any third parties engaged by the Seller.
The Seller shall be liable for both direct and indirect losses.
9.3 The Seller shall indemnify SAS and hold SAS harmless in respect of all claims brought against SAS by third parties in connection with the Agreement.
9.4 The Seller is obliged to take out sufficient insurance against the losses referred to in article 9.2. This insurance obligation also applies to any means which are in any way used in the execution of the Agreement.
9.5 SAS is not liable for any losses suffered on the part of the Seller, unless the loss has been caused by deliberate intent or willful recklessness on the part of solely the supervisory staff of SAS.
Deliberate intent or willful recklessness shall solely be understood to mean an act in which the supervisory staff of SAS has knowledge of the fact that the chance that the act may cause a loss is considerably greater than the chance that such action may not cause a loss.
10.1 Seller grants to SAS a non-exclusive, eternal, irrevocable, global and transferable right to use any intellectual property rights regarding goods and/or services provided by the Seller.
10.2 Seller indemnifies SAS against any claims by third parties arising from any infringement on any intellectual property rights or other (property) rights of third parties and the Seller shall compensate SAS for any ensuing losses.
10.3 Insofar as SAS makes available to the Seller any means of which SAS possesses an intellectual property right, the Seller acknowledges that SAS is and shall at all times remain the owner of such means and that the Seller shall not obtain any intellectual property rights or title as regard such means.
The Seller shall manage all means referred to in this paragraph at its own risk and expenses and keep them in good repair. The Seller shall not use the means for or have the means used by third parties unless the Seller has been authorized in writing by SAS to do so.
11.1 The Seller acknowledges that in the context of this Agreement it may come into possession of Confidential Information of SAS. Seller agree to use reasonable efforts, and at least the same level of protection as they would use regarding their own Confidential Information, to prevent any confidential information from being revealed to third parties for a period of two (2) years from the date of disclosure.
11.2 The Seller is obliged to impose the same obligations as referred to in article 11.1 upon its employees or any third parties it engages in the execution of the Agreement. The Seller warrants that such employees or third parties shall not act in breach of the duty of confidentiality.
11.3 The term Confidential Information shall mean all information which SAS protects against unrestricted disclosure to others, furnished by SAS or its representatives to Supplier or its representatives. This information includes, but is not limited to, information that is related to: (a) business plans or operations of SAS; (b) the business of any customer or partner of SAS; (c) the research and development or investigations of SAS; (d) SAS’s properties, employees, finances, operations; (e) any information about or concerning any third party (which information was provided to SAS subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (eg. source codes, programming techniques, methods of processing, flow charts etc.); and (g) product offerings, content partners, product pricing, technical drawings, algorithms, processes, data, trade secrets, know-how, improvements, marketing plans, forecasts and strategies etc.
11.4 Seller shall not reproduce the Confidential Information in any form except as required to accomplish the intent of these terms. Any reproduction of any Confidential Information of SAS shall remain the property of SAS.
11.5 The duty of confidentiality does not apply to information which is (a) generally available to the public, without breach of these terms by Seller; (b) released by a party without restriction; (c) known to a party prior to receipt from the other party; (d) freed of such restriction by agreement of SAS in writing or (e) is revealed pursuant to court order or process of law.
11.6 Without prejudice to the rights and remedies otherwise available to SAS, SAS shall be entitled to equitable relief by way of injunction or otherwise if Seller or any of its representatives breach or threaten to breach any of the provisions of these General Purchase Terms and Conditions. Seller acknowledges the highly confidential nature of the Confidential Information and that the unauthorized disclosure of such will give rise to irreparable injury to SAS, such injury being inadequately compensable in damages.
12.1 SAS may terminate the order in whole or in part for cause without liability to Seller by written notice to Seller if Seller defaults, fails to comply with the terms and conditions of the order, or makes an assignment for the benefit of creditors or becomes insolvent or subject to proceedings under any law relating to bankruptcy, insolvency or the relief of debtors.
If the Agreement is terminated for cause, SAS shall not be obliged to provide compensation in any form.
12.2 SAS may terminate the order in whole or in part for its convenience by written notice to Seller. In the event of such termination, Seller may claim its reasonable costs incurred prior to the effective date of termination.
Hereto the Seller must inform SAS by registered letter within one week from delivery of the notice of termination proving that production had already commenced before receipt of the notice of termination. In that case, SAS shall be entitled to choose between taking delivery of what has been produced already and compensating the Seller for the costs already incurred.
In case of supply of services, no other compensation shall be due than the payment of work already performed to the exclusion of any other damages such as, but not limited to, loss of profit or loss of turn over.
13.1 All Agreements between SAS and the Seller are governed by the laws of Belgium, excluding choice of law provisions. The parties expressly agree to exclude from this Agreement the United Nations Convention on Contracts for the international Sale of Goods.
14.1 Whenever possible, these general conditions shall be interpreted in such a manner as to be valid and enforceable under the applicable law. However, if a court of competent jurisdiction finds any part of these general conditions to be invalid, unenforceable or illegal in whole or in part, that part shall be excluded but the remainder of those provisions and of these general conditions shall remain in full force and effect as if such invalid, illegal or unenforceable provision had never been contained herein.
14.2 In such an event, the Parties shall amend the invalid, illegal or unenforceable provision or any part thereof and/or agree on a new provision, in such a way as to reflect as closely as possible the purpose of the invalid, illegal or unenforceable provision.
15.1 Failure to require compliance with a part of these general terms and conditions is not a waiver of that part. Nothing in these general terms and conditions waives any remedy SAS may have under these general terms and conditions at law, in equity or otherwise.