general terms and conditions_jnk

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GENERAL TERMS AND CONDITIONS

FOR PURCHASE and SUB CONTRACTING

DOCUMENT NO: JNKI-PROC-0001

0 04-Feb-2016

FOR PURCHASE /

SUB CONTRACTING

REV DATE DESCRIPTION MADE BY PM CEO

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Contents

CLAUSE 1 - THE ORDER

CLAUSE 2 - FORMATION / ACCEPTANCE OF THE ORDER

CLAUSE 3 - MODIFICATIONS

CLAUSE 4 - SUB-CONTRACTING/ASSIGNMENT/CHANGE OF CONTROL

CLAUSE 5 - PRICES - INVOICING - TERMS OF PAYMENT

CLAUSE 6 - DESIGN - MATERIALS

CLAUSE 7 - MODELS AND TOOLS

CLAUSE 8 - PACKING - DELIVERY

CLAUSE 9 - QUALITY ASSURANCE – AUDITS - INSPECTION AND TESTS

CLAUSE 10 - ACCEPTANCE

CLAUSE 11 - GUARANTEES FOR DELAY AND PERFORMANCE

CLAUSE 12 - TRANSFER OF OWNERSHIP – TRANSFER OF RISKS

CLAUSE 13 - WARRANTIES

CLAUSE 14 - HEALTH, SAFETY AND ENVIRONMENT (HSE)

CLAUSE 15 - OBSERVANCE OF LAWS AND REGULATIONS

CLAUSE 16 - FORCE MAJEURE

CLAUSE 17 - INTELLECTUAL PROPERTY - CONFIDENTIALITY

CLAUSE 18 - LIABILITY - INSURANCE

CLAUSE 19 - ADVERTISING

CLAUSE 20 - TERMINATION - SUSPENSION

CLAUSE 21 - APPLICABLE LAW AND JURISDICTION

CLAUSE 22 - SPARE PARTS

CLAUSE 23 - IMPORT / EXPORT LICENCE

PREAMBLE

The present General Terms and Conditions shall define the principles of implementation of the Order

awarded to the Vendor / sub-contractor / Fabricator for the purchases by JNK HEATERS COMPANY

LIMITED of studies, equipment and/or services as further defined in the General Terms & Conditions

(referred to hereinafter as the "Supply" or “work”).

These Purchase Conditions are an integral part of the Order and they exclude any terms and

conditions of the Vendor, whatever the date and the way of their communication, including when

appearing on a purchase order accepted by JNK HEATERS COMPANY LIMITED.

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CLAUSE 1 - THE ORDER

1.1 The Order includes, without being exhaustive, the following documents, listed in order of

precedence: the Purchase Order Form signed by both Parties and its annexures, the Special

Terms and Conditions of the Order and its annexures, the technical specifications of the

Order as mentioned in the Purchase Order, the present General Terms and Conditions

All in their latest agreed version, it being understood, that any amendment to the contractual

documents shall only be valid if agreed in writing.

1.2 In the event of ambiguity, discrepancy or contradiction between the provisions contained in

one or more of the contractual documents which cannot be settled by reference to the order

of precedence above mentioned, Vendor shall inform JNK HEATERS COMPANY LIMITED,

which shall decide which document shall prevail. It being understood that performance of

any such WORK prior to JNK HEATERS COMPANY LIMITED's clarification shall be at Vendor's

risks, and Costs & Time effect shall be to vendor account.

1.3 The Order constitutes the entire agreement between the Parties with respect to the subject

matter hereof and shall supersede and cancel all prior agreements or understandings,

whether oral or written.

1.4 No waiver of any of the provisions of the Order shall be effective, unless it is given in writing

and signed by both Parties. Failure by JNK HEATERS COMPANY LIMITED to exercise or

enforce any right or provision of the Order shall not constitute a waiver of such right or

provision.

CLAUSE 2 - FORMATION / ACCEPTANCE OF THE ORDER

2.1 The Order shall be binding upon receipt by JNK HEATERS COMPANY LIMITED of the

acceptance by Vendor of the Order without any reservation, notwithstanding the

Commencement Date defined in the Order.

Vendor shall sign with date & Company Stamp and return to JNK HEATERS COMPANY

LIMITED the Order within Five (5) Working days from the receipt of the Order. Signature of

all or part of the Order entails acceptance by Vendor of the Order and of the documents

referenced in the Order. If Vendor fails to return the Acceptance within the above mentioned

period, or if the Acceptance includes reservations or comments, JNK HEATERS COMPANY

LIMITED shall have the right to cancel the Order, without any indemnity for Vendor.

The acceptance of the Order by Vendor implies that the Vendor irrevocably commits themself

to meet the schedule which is one of the essential conditions of the Purchase / Work Order.

2.2 The Work further includes the provision of such necessary or incidental supplies,

consumables, utilities, tools, labour, facilities, equipment, and services.

2.3 Prior to acceptance, Vendor is required to verify the information and data contained in the

documents handed over to him by JNK HEATERS COMPANY LIMITED. By entering into the

Order, Vendor recognises that he is fully satisfied as to the correctness and completeness of

the Order and that all documents are in all points fit and sufficient for their intended purpose

and do not contain any errors, omissions or contradictions. Vendor is deemed to have

satisfied itself as to all the conditions for implementation of the Order.

The same principles shall apply to any equipment and/or material provided by JNK HEATERS

COMPANY LIMITED to Vendor for the performance of the Order. Such equipment and /or

material shall be deemed in Vendor’s custody from the day it is put at Vendor’s disposal.

CLAUSE 3 - MODIFICATIONS

3.1 JNK HEATERS COMPANY LIMITED may, at any time, modify the scope of the Order, or ask

for additional Work. The Vendor shall, within Fifteen (15) calendar days starting from receipt

of the request for modification, indicate to JNK HEATERS COMPANY LIMITED in writing and

at its own cost, the impacts on prices and/or schedule of the modifications requested (with

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relevant justification). After this deadline, no claim and/or objection by Vendor shall be

accepted by JNK HEATERS COMPANY LIMITED.

The correlative modifications to prices and/or schedule accepted by JNK HEATERS COMPANY

LIMITED are subject to a written amendment signed by both parties.

If Vendor does not issue the impact within the indicated period of time, and if Vendor

proceeds with the implementation of the Modification, this implementation shall be

considered as an acceptance that the Modification has no effect on price and/or schedule.

3.2 The following events do not constitute modifications of the Order and cannot lead to

adjustment to any terms of the Order: Modifications and corrections that occur during the

engineering design/ phase for the Order which are necessary to convert general design intent

into sufficient details for the Order execution, Corrective actions which are necessary due to

non-compliance of the Vendor or one of its Sub-Vendor with the requirement of the Order,

instructions, drawings, specifications, or any documents sent to Vendor in relation with the

Order, Supplying of equipment and / or services not previously authorized by JNK HEATERS

COMPANY LIMITED .

3.3 Vendor shall not change, modify or alter any part of the Supply or of the Order without JNK

HEATERS COMPANY LIMITED’s prior written agreement.

3.4 Modifications shall in no event slow down the execution of the Order, nor shall it postpone

the schedule of the Order, unless mutually agreed.

CLAUSE 4 – SUB-CONTRACTING / ASSIGNMENT / CHANGE OF CONTROL

4.1 Vendor may not subcontract part or all of the Order without prior written authorization from

JNK HEATERS COMPANY LIMITED.

4.2 Vendor shall communicate to JNK HEATERS COMPANY LIMITED for approval the choice of

the said sub-contractor's company as well as a copy of sub-contractors' Order (unpriced).

JNK HEATERS COMPANY LIMITED reserves the right to refuse sub-contractors if he does not

comply / fulfil the pre-qualification requirements if required.

4.3 Vendor shall ensure his sub-supplier or sub-contractors are solvent and sufficiently

experienced for the implementation of the part of the Order it has to perform.

4.4 Vendor shall pass on his own Vendors and sub-contractors the provisions of the Order

applying to their obligations.

4.5 Approval by JNK HEATERS COMPANY LIMITED of a sub-contractor or sub-contracting by

Vendor shall not release Vendor from his obligations and responsibilities.

4.6 In case JNK HEATERS COMPANY LIMITED considers that a sub-contractor or a sub-supplier

is not performing a part of the work in accordance with the Order, JNK HEATERS COMPANY

LIMITED shall notify it to Vendor who shall immediately remove such sub-contractor or sub-

supplier and, without any delay, shall replace him with competent approved substitute, at

no extra cost to JNK HEATERS COMPANY LIMITED and Vendor will not be granted additional

time.

4.7 JNK HEATERS COMPANY LIMITED may assign the Order to any Third Party, including its

Client. In that case, JNK HEATERS COMPANY LIMITED will inform Vendor of the assignment

and sub-supplier, sub-supplier shall obtain all necessary insurance policy endorsements

relating to the Order so that the assignee has the same rights under such policies as JNK

HEATERS COMPANY LIMITED.

In such case, Vendor agrees to be responsible towards assignee for the proper performance

of the Order and agrees to sign any required assignment agreement which shall not modify

the terms of the Order.

4.8 Vendor shall not assign nor transfer all or part of the Order, without JNK HEATERS COMPANY

LIMITED’s prior written consent.

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4.9 Vendor shall immediately inform JNK HEATERS COMPANY LIMITED of any change of

shareholding structure, change of control or any event having an impact on Vendor’s ability

(financial or other) to perform the Order.

CLAUSE 5 - PRICES - INVOICING - TERMS OF PAYMENT

5.1 Prices: The prices indicated on the Order are inclusive of taxes and duties as specified in the

Purchase order are firm and not subject to revision.

5.2 Invoicing: For each instalment, the related invoice shall be sent to the Accounting

Department in triplicate, together with the document justifying the payment and the Order

reference number.

Failure to comply with the instructions set forth in the Order entails rejection of the invoices,

which shall be returned to the Vendor.

Vendor’s issuance of its last invoice for the balance of the total amount of the Order

(including modifications or liquidated damages) shall be construed as an acknowledgement

of full settlement on its part.

5.3 Terms of payment:

5.3.1 Upon satisfactory fulfilment of the Vendor’s obligations, JNK HEATERS COMPANY

LIMITED shall pay, by bank transfer or cheque, the undisputed invoices within the time

specified in the Purchase Order. Disputed invoices rejected by JNK HEATERS COMPANY

LIMITED shall be corrected by Vendor and resubmitted for payment.

5.3.2 JNK HEATERS COMPANY LIMITED shall have the right to offset, from any invoice, any

amount due by Vendor to JNK HEATERS COMPANY LIMITED under the Order.

5.4 Accounting and audit : Vendor shall safely keep and cause its Vendors and sub-contractors

to keep in accordance with generally accepted accounting practice accurate detailed records

and accounts pertaining to the performance of the work, including personnel records,

correspondence, receipts, vouchers, memoranda, computerised data and such other

information necessary for an accurate audit and verification of any reimbursable costs, for

the duration of the Order and for a period of five (5) years following termination of the

Order.

CLAUSE 6 – DESIGN - MATERIALS

The Supply shall be carried out according to the Vendor’s design, on the basis of JNK

HEATERS COMPANY LIMITED’s specifications and/or drawings. Vendor shall take full

responsibility therefore and satisfy the requirements (qualify, performance…) set forth in the

Order.

Should the design of the Supply be imposed by JNK HEATERS COMPANY LIMITED, Vendor

shall be responsible for verifying it, and if necessary, for completing it.

Vendor shall be responsible for procuring the materials (origin, conformity…) in compliance

with the regulations in force applicable to the Order, concerning the origin and provenance

of the Supply components. Vendor is responsible for the accuracy of the certificates.

The drawings furnished by Vendor shall be available to JNK HEATERS COMPANY LIMITED in

native format.

CLAUSE 7 - MODELS AND TOOLS

The drawings, models including 3D models, databases and tools entrusted to the Vendor

shall remain the exclusive property of JNK HEATERS COMPANY LIMITED. The drawings,

models including 3D models, databases and tools fabricated or created by the Vendor for

execution of the Order shall become the property of JNK HEATERS COMPANY LIMITED as

soon as they are created. All models and tools that might not be returned shall be stored

free of charge by the Vendor, sheltered from bad weather and insured against all risks of

deterioration. They shall bear the mark "JNK HEATERS COMPANY LIMITED," very legibly

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painted, and shall be returned upon JNK HEATERS COMPANY LIMITED's request. Prior to

execution of the Order, the Vendor shall ensure compatibility between the models and

tools that JNK HEATERS COMPANY LIMITED may make available to him. Non-matching

parts shall be rejected, even if they come from models and tools of the SUPPLY. All

necessary models and tools and the corresponding drawings for performance of the Order

shall be assigned exclusively to this purpose. They shall not be used, reproduced or

communicated to third parties without prior written authorization from JNK HEATERS

COMPANY LIMITED.

At the end of the performance of the Order, the drawings, 3D models and databases shall

be returned to JNK HEATERS COMPANY LIMITED, in whatever state they may be, at the

same time as the consignment note, for the remainder.

CLAUSE 8 – PACKING - DELIVERY

8.1 Prior to packing the supply, Vendor shall take all measures necessary to protect the

equipment from bad weather, corrosion, loading incidents, and transportation or storage

constraints.

The packing, marking and loading of the Goods shall be carried out at the cost and risk of

the Vendor, who undertakes to deliver the Goods at the place specified and on the date

scheduled in the Order.

If the delivery is not made at the agreed place, or within the agreed period of time, all costs

incurred in connection with dead freight, demurrage, warehousing, insurance and/or any

other costs to ensure delivery shall be borne by Vendor, as well as the possible associated

costs incurred by JNK HEATERS COMPANY LIMITED .

8.2 In the event of supply of equipment or materials, all shipments shall be subject to the

notice of shipment by the Vendor sent to the Purchasing Department which issued the Order

(these documents are a precondition for invoicing any instalment under the Order), and it

shall be attached to the package.

Early deliveries can only be carried out with JNK HEATERS COMPANY LIMITED’s prior

intimation / written consent.

CLAUSE 9 - QUALITY ASSURANCE – AUDITS - INSPECTION AND TESTS

9.1 Quality Assurance

Vendor shall provide, maintain and observe for the duration of the Order a complete Quality

Assurance System and set up a suitable organization securing the various related functions.

Throughout the performance of the Order, the Vendor shall give JNK HEATERS COMPANY

LIMITED and/or its Client (or End-User if any) and/or their representative free access to any

place where part of the Supply is being performed.

9.2 Audits

During the performance of the Order, JNK HEATERS COMPANY LIMITED is entitled to effect

by its own specialists or by a designated Third Party technical and safety audits in respect

of all aspects of the Order. JNK HEATERS COMPANY LIMITED shall be entitled to instruct

Vendor to perform adjustments as are required by the audit expert to comply with the

requirements of the Order, at Vendor's cost.

During the visits by JNK HEATERS COMPANY LIMITED and/or its Client (or End-User if any),

Vendor shall afford the necessary assistance, and supply the necessary documentation to

JNK HEATERS COMPANY LIMITED and/or its Client (or End-User if any) to enable them to

monitor the progress of the WORK and to ascertain that the materials used, and the method

of performing the work, meet the requirements of the Order.

Vendor shall bear all costs associated with providing such assistance.

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Should the progress of the work be behind the Schedule, or should JNK HEATERS COMPANY

LIMITED find any anomaly, JNK HEATERS COMPANY LIMITED shall notify Vendor of the same

and Vendor shall take such action to remedy such delay or anomaly within the shortest

possible time or within the time specified by JNK HEATERS COMPANY LIMITED.

JNK HEATERS COMPANY LIMITED may propose remedy actions and/or execute by itself such

remedy plan if it deems that Vendor’s corrective measures are not satisfactory. The resulting

costs shall be borne by Vendor.

9.3 Inspection and Tests

The Supply is subject to inspection by JNK HEATERS COMPANY LIMITED, his Client (or End-

User if any), Third party, or their authorized representative. Inspection will take place in

Vendor’s premise.

Vendor shall provide safety and protective clothing, as required, including but not limited to

safety boots, hard hats, goggles, gloves for JNK HEATERS COMPANY LIMITED, Client’s

and/or End-User’s representatives.

The inspection does not relieve Vendor of the responsibility to supply which conform to the

specifications nor shall it relieve Vendor of the responsibility to provide its own quality control

and in-house inspection of the SUPPLY. Test reports, if required, shall be submitted by

Vendor to the inspector at the time of inspection.

The costs for the inspection and testing of the equipment’s are deemed to be included in the

Order. All and any extra costs of JNK HEATERS COMPANY LIMITED and/or of its Client and/or

End-User, if any, attributable to additional inspections due to Vendor’s failure under the

Order will be borne by Vendor.

Neither JNK HEATERS COMPANY LIMITED’s comments, approval, visits, checks, nor the

presence of JNK HEATERS COMPANY LIMITED’s representative in Vendor’s workshop shall

release the Vendor from any of its responsibilities under the Order.

CLAUSE 10 - ACCEPTANCE

10.1 Upon completion of the Order, an Acceptance Certificate shall be issued by JNK

HEATERS COMPANY LIMITED upon Vendor’s request in writing, acknowledging the latter’s

fulfilment of its obligations.

Acceptance of the SUPPLY shall occur following verification by JNK HEATERS COMPANY

LIMITED that the Supply conforms to the Order and, where applicable, following receipt by

JNK HEATERS COMPANY LIMITED of the documents relating to the SUPPLY (including

material certificates, drawings, final documentation) and more generally receipt of any

document set out in the Order

If JNK HEATERS COMPANY LIMITED believes that any Vendor’s obligations have not been

fulfilled, it shall notify Vendor in writing of the tasks which remain to be finished. Vendor

shall then complete all outstanding obligations prior to the issuance of the Acceptance

Certificate. In case of minor punch list items, Acceptance may be issued by JNK HEATERS

COMPANY LIMITED, provided that Vendor completes the punch list within a mutually agreed

period of time.

Any acceptance of the Supply or portions thereof, even by a recognized authority shall not

relieve Vendor from its responsibility for the proper execution of the Order.

10.2 Rejection of the Supply

Should JNK HEATERS COMPANY LIMITED believe that Vendor is unable to complete all or

part of the SUPPLY as per the requirements of the Order and after an unsuccessful formal

notice to Vendor, JNK HEATERS COMPANY LIMITED reserves the right, without prejudice to

its rights under the Order or at law, to reject all or any part of the Supply. Any Supply that

is rejected shall be taken back by the Vendor, at Vendor’s costs, within ten (10) days

following receipt of the notice of rejection, unless otherwise instructed by JNK HEATERS

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COMPANY LIMITED , and the Vendor shall reimburse all sums already paid by JNK HEATERS

COMPANY LIMITED in connection with the rejected Goods/Supply. Title to the rejected

Goods and care and custody of the same shall automatically be transferred back to Vendor,

unless otherwise notified by JNK HEATERS COMPANY LIMITED.

All expenses connected to the rejection of the Supply shall be borne by Vendor.

CLAUSE 11 – GUARANTEES FOR DELAY AND PERFORMANCE

11.1 Vendor acknowledges that compliance with all dates indicated in the Schedule is

imperative and that delivery of the work by the Delivery Date is an essential condition of the

Order and therefore Vendor hereby undertakes to complete the work on or before the dates

and times for completion set forth in the Schedule.

In particular, the Schedule specifies the following: The date(s) scheduled for the beginning

and the progression of the performance of the Order. The date(s) of delivery and/or

completion of the Supply or parts thereof.

11.2 Without prejudice to any other provisions of the Order and/or JNK HEATERS COMPANY

LIMITED’s rights at law, should Vendor fail to complete all or part of the WORK as per the

Schedule and the Delivery Date, JNK HEATERS COMPANY LIMITED shall have the right to

apply liquidated damages or contract reduction clause for delay. The foregoing shall not

apply in case of Force Majeure.

The amount of the liquidated damages or contract reductions shall be specified in the Order.

They can be offset from amounts due by JNK HEATERS COMPANY LIMITED to Vendor under

the Order.

11.3 The payment by the Vendor of these liquidated damages or contract reduction clause

shall not affect JNK HEATERS COMPANY LIMITED’s right (i) to claim all damages incurred by

JNK HEATERS COMPANY LIMITED as a consequence of such delay (including potential claims

by third parties), and/or (ii) to cancel the Order, as of right, for Vendor’s default, and/or (iii)

to request reimbursement of sums already paid by JNK HEATERS COMPANY LIMITED for the

SUPPLY (if any).

The application of liquidated damages shall not release Vendor of its obligation to diligently

complete the Order or from any other obligations and liabilities under the Order or at law.

11.4 The Vendor guarantees that the Supplies shall meet the performance and yields

described in the Order.

Should such performance not be met in whole or in part, for reasons not attributable to JNK

HEATERS COMPANY LIMITED, Vendor shall, at its costs, promptly proceed with any

replacement, repair, change or adjustment necessary in order to meet the requirements of

the Order (including dismantling and re-assembly of the supply).

JNK HEATERS COMPANY LIMITED may not issue its Acceptance of the Supply until the Supply

has met all the performances defined in the Order.

CLAUSE 12 - TRANSFER OF OWNERSHIP – TRANSFER OF RISKS

12.1 The Supply and parts thereof shall become the property of JNK HEATERS COMPANY

LIMITED through Vendor as soon as such are ordered by sub-supplier or a sub-contractor

and identifiable as being attributed to the Order, notwithstanding the phase of progress

(such as in the course of manufacturing, fabrication, welding, transportation, installation)

and notwithstanding any payment considerations. Vendor shall guarantee that the Supply is

free of any lien, encumbrance or pledge.

12.2 The Vendor waives any right of recourse to any retention of title clause not expressly

agreed by JNK HEATERS COMPANY LIMITED.

12.3 The Vendor shall ensure that its own sub-supplier’s chain and its subcontractors are

imposed the same obligations than above.

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12.4 The Supply (including free issued materials if any) shall remain under Vendor's care

and custody until delivery to JNK HEATERS COMPANY LIMITED or its Client as per the

Incoterm defined in the Purchase Order form.

CLAUSE 13 - WARRANTIES

13.1 Vendor shall perform the work with all proper skill and care, in accordance with good

engineering practice and the state of the art, and in compliance with the Order, the

regulations, the standards and codes in force.

Vendor guarantees that the equipment supplied are new, fit for the intended purpose, of

good quality and workmanship and meet the description and specification referred to in the

Order.

13.2 Except otherwise provided, the Vendor warrants that the Supply, including associated

documentation shall be free from errors, defects or failures for a period of eighteen (18)

months starting from the Acceptance by JNK HEATERS COMPANY LIMITED of the SUPPLY

or thirty (30) months from the Delivery Date, whichever comes first.

13.3 Should the Vendor breach this warranty, JNK HEATERS COMPANY LIMITED may, at its

option, either require the Vendor to repair or to replace the Supply or if the Vendor does not

do so within ten (10) calendar days from the date of the request by JNK HEATERS COMPANY

LIMITED, take appropriate measures to arrange the same itself or through a third party. In

any event, the Vendor shall bear all costs of any replacement and repair of the Supply,

including but not limited to travel expenses, the costs of dismantling and returning the

Supply to the factory and any parts and labour, but without prejudice to any other rights or

remedies JNK HEATERS COMPANY LIMITED may have.

13.4 Reworks shall be performed within the period requested by JNK HEATERS COMPANY

LIMITED, having regard to the urgency of the case and in such a manner so as to cause a

minimum of interruption in the use of the Supply. Any replacement or repair of the Supply

under warranty shall give rise to a new warranty for a minimum period of twelve (12) months

from the date of JNK HEATERS COMPANY LIMITED’s acceptance of delivery of the repaired

or replaced SUPPLY.

CLAUSE 14 - HEALTH, SAFETY AND ENVIRONMENT (HSE)

Vendor shall ensure implementation of the highest HSE standards by active involvement at

all levels in his organisation, including sub-contractors.

Vendor shall be responsible for all HSE aspects in all aspects of the work.

Management of HSE means activities related to the prevention of: Fatalities, injuries and

occupational diseases. Damage to the environment. Damage to property. Unscheduled down

time

HSE management shall be an integrated part of the work and shall be performed in a proper,

systematic way based on established standards and safety objectives.

Vendor shall implement a HSE management system and shall report the situation in the

Monthly Progress Report.

CLAUSE 15 – OBSERVANCE OF LAWS AND REGULATIONS

Vendor is aware of, and shall in all respect abide by laws, decrees and regulations issued by

any authorities, whether local or other, having jurisdiction over the work.

Vendor shall not offer, make payments, loans or other special considerations to any public

official or to any employee of JNK HEATERS COMPANY LIMITED , its Client (or End-User if

any) or their affiliates, failing which the Order may be terminated in accordance with Clause

20.1 hereof.

In the field of HSE, Vendor acknowledges that it is aware of all applicable rules or regulations,

including site rules, when site works are involved. Vendor shall bear all financial and/or

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administrative consequences incurred by JNK HEATERS COMPANY LIMITED or its Client (or

End-User if any), as a result of Vendor’s failure to abide by the above mentioned laws and

regulations.

CLAUSE 16 - FORCE MAJEURE

16.1 Force Majeure shall mean any event outside the reasonable control of the Parties which

is unforeseeable and unavoidable and which is preventing one of the Parties from performing

its obligations under the Order.

16.2 The party affected by an event of force majeure shall immediately notify the other party

of the situation by fax or official e-mail confirmed by registered letter with receipt, supplying

all necessary documentary evidence. The party claiming an event of force majeure shall

make every effort to mitigate as far as possible any adverse effect arising from this situation.

16.3 Force majeure shall only relieve the affected party from its contractual obligations to

the extent and for such period as the said party is prevented from performing those

obligations.

16.4 In any case, the following shall not be considered as cases of Force Majeure: Strikes,

except national strikes; implementation of the Order which is particularly difficult or onerous;

any event attributable to Vendor or to its subcontractors or sub suppliers; potential delays

in the supply of products or of raw materials.

16.5 Should the consequences of the event of Force Majeure last more than sixty (60) days

starting from the date of notification and if the Parties have not reached an agreement on

the most appropriate course of action in view of the circumstances, JNK HEATERS COMPANY

LIMITED shall be entitled to terminate all or part of the Order under the same conditions as

those provided for in Clause 20.2 hereafter.

16.6 Each party shall bear its own expenses resulting from the occurrence of a force majeure

event.

CLAUSE 17 - INTELLECTUAL PROPERTY - CONFIDENTIALITY

17.1 The documents, drawings and data disclosed by JNK HEATERS COMPANY LIMITED to

Vendor shall remain JNK HEATERS COMPANY LIMITED’s property and may not be used or

disclosed for purpose other than the implementation of the Order, without JNK HEATERS

COMPANY LIMITED’s approval.

17.2 JNK HEATERS COMPANY LIMITED shall be free to use the drawings and documents

prepared by Vendor under the Order for the purpose of executing JNK HEATERS COMPANY

LIMITED’s own contract with its Client.

17.3 The Vendor declares that all intellectual property rights relating to the Suply are either

the exclusive property of the Vendor or subject to a license granted to the Vendor by a third

party holding these rights, under conditions allowing JNK HEATERS COMPANY LIMITED to

freely use and/or transfer the Supply.

17.4 Consequently, Vendor shall indemnify and hold harmless JNK HEATERS COMPANY

LIMITED against any and all claims, costs, damages, expenses or legal action by third parties

in connection with any actual or alleged infringement of intellectual property rights in relation

to the supply. If in the opinion of JNK HEATERS COMPANY LIMITED the supply carries a risk

of claim or legal action, the Vendor shall take all steps necessary to ensure that such risk of

infringement is eliminated, including if necessary carrying out modification or replacement.

17.5 All information obtained by the Vendor during performance of the Order shall be kept

confidential and shall not be disclosed by Vendor to any third party save to the extent

necessary for the execution of the Order and then only on the basis that the recipient of

such information will be bound by similar confidentiality obligations than those undertaken

by the Vendor hereunder. Provided however that this obligation shall not apply to

information which is or shall become part of the public domain otherwise than as a result of

a breach by Vendor of its obligations under this clause, or was in Vendor’s possession prior

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to receiving this information under the Order, or was received from third parties without

restriction on disclosure.

17.6 Vendor shall only be entitled to use the documents, information and/or elements

received or obtained for the performance of the Order and shall not disclose the same to

any third party or to any staff of the Vendor other than on a “need-to-know” basis.

17.7 The confidentiality undertaking under this Clause 17 shall apply for a period of Five (5)

years from signature of the Order. The Vendor shall, at the expiry of the term of the Order,

return to JNK HEATERS COMPANY LIMITED every document and data and every copy of the

same, which may have been kept in connection with the performance of the Order.

CLAUSE 18 - LIABILITY - INSURANCE

18.1 The Vendor shall be liable for any damages, liabilities, claims, judgments, losses or

expenses that it or its employees, representatives and/or sub-contractors cause to the

Supply, or to the personnel or property of JNK HEATERS COMPANY LIMITED or of its Client

(and End-User if any) or of a third party during the implementation of the Order and the

Vendor shall defend, indemnify and hold harmless JNK HEATERS COMPANY LIMITED , its

Client (and End User if any) or the third party from and against any such damages, liabilities,

claims, judgments, losses or expenses that these latter may suffer.

18.2 Vendor shall defend, indemnify and hold JNK HEATERS COMPANY LIMITED , its Client

(and End-User if any), harmless from and against any and all liabilities, claims, judgments,

losses, expenses and any costs related to bodily injury including death, property damage of

Vendor’s personnel or representatives, its Vendors’, sub-contractors’ or any affiliates’

thereto.

18.3 Vendor shall, at its own costs, take out and maintain in force all insurances necessary

for covering his liability under the Order and at law.

Unless otherwise specified in the Order, Vendor shall procure the following insurance: A

policy covering the risk of loss or damage (and the financial consequences thereof) of the

Supply occurring prior to delivery to JNK HEATERS COMPANY LIMITED for its full replacement

value and a Third Party Liability Insurance (including a Product liability policy)

covering death and personal injury and property damages of third parties, including JNK

HEATERS COMPANY LIMITED , its Client (and End-User if any), before and after the delivery

of the Supply and caused by a fault, error or omission attributable to Vendor Workmen’s

compensation Insurance as per the law applicable to the employment contracts of Vendor’s

personnel.

None of the amounts set out in the insurance policies shall be construed or interpreted as

limiting the Vendor’s liability in any respect.

Upon JNK HEATERS COMPANY LIMITED’s request, Vendor shall provide insurance certificate

from first rank insurance companies acceptable to JNK HEATERS COMPANY LIMITED,

certifying the existence, insured capital, guarantees, and duration and renewal dates of the

policies.

18.4 Neither party shall be liable to the other party for any loss of production, loss of profit,

loss of contract, loss of opportunity, loss of business, loss of use, loss in downtime facilities

or for any indirect, consequential, or special loss or damages that may be suffered by the

other party.

18.5 Vendor’s maximum liability under this Order is limited to 100% (one hundred percent)

of the price of the Order, except in case of defective engineering, of gross negligence or

wilful misconduct for liability under Clause 18.1 to 18.4 “Liability – Insurance” and Clause

17 “Intellectual property confidentiality”, for which Vendor’s liability is not limited.

CLAUSE 19 - ADVERTISING

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Any publicity or communication to third parties concerning the Order shall be subject to JNK

HEATERS COMPANY LIMITED’s prior written approval.

CLAUSE 20 - TERMINATION - SUSPENSION

20.1 Termination for default

In the event of Vendor‘s default under the Order (including in the event the Vendor has a

petition for its winding up presented, goes into liquidation, or otherwise has a petition

presented for appointment of any administrator in respect of the Vendor’s business), JNK

HEATERS COMPANY LIMITED shall have the right to terminate the Order, as of right, without

any indemnity to Vendor and without prejudice to the right of JNK HEATERS COMPANY

LIMITED to claim for the payment of liquidated damages or cost reduction for late delivery

and/or all the damages incurred by JNK HEATERS COMPANY LIMITED as a consequence of

Vendor’s default, including the extra costs resulting from the award of a contract to another

contractor to terminate the Order. JNK HEATERS COMPANY LIMITED shall notify such

termination by registered letter with acknowledgement of receipt.

JNK HEATERS COMPANY LIMITED may, by giving notice to Vendor, terminate all or part of

the Order without compensation of any sort to Vendor, if the Vendor is the subject of a

merger, take-over, acquisition or transfer of business that would in the sole discretion and

opinion of JNK HEATERS COMPANY LIMITED, have a detrimental effect upon Vendor’s ability

to perform its obligations under the Order.

20.2 Termination for convenience

In the absence of default by Vendor, JNK HEATERS COMPANY LIMITED may, at any time,

cancel all or part of the Order by registered letter.

In this case, JNK HEATERS COMPANY LIMITED shall pay the Vendor, upon presentation of

supporting documents, for the part of the Supply completed, at JNK HEATERS COMPANY

LIMITED’s satisfaction, as of the date of termination, after deduction of any down payments

or advance payments already paid.

20.3 In all event of termination, Vendor shall, no later than fifteen (15) days after receipt of

the notice of termination, refund and hand over to JNK HEATERS COMPANY LIMITED the

following:

a) All sums that have been paid to Vendor as advance or as down payment;

b) The documents used for the performance of the Order, as well as all data, books,

manuals, drawings, information, etc. established for JNK HEATERS COMPANY

LIMITED under the Order (except Vendor’s proprietary documents);

c) Title to and of possession the Supply and its constituting parts (including

documents, drawings, data…), as it is, on the date of termination;

d) Title to and of possession the equipment or materials provided to Vendor as a

free issue for incorporation in the main Supply/ modularisation of the equipment

part

Vendor shall also, if so required by JNK HEATERS COMPANY LIMITED, assign to JNK HEATERS

COMPANY LIMITED its sub-contracts entered into in connection with the Order.

20.4 Suspension

JNK HEATERS COMPANY LIMITED shall, at any time, have the right at its sole discretion, to

suspend all or part of the Order. Vendor shall, forthwith upon receipt of JNK HEATERS

COMPANY LIMITED’s notice, suspend performance of the Order and shall during the period

of such suspension properly protect and secure the Supply.

The delivery schedule shall not be extended and JNK HEATERS COMPANY LIMITED shall not

reimburse Vendor for costs incurred as a result of any suspension attributable to Vendor’s

failure to comply with any provision of the Order or necessary for the safety of the Supply.

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Any request for extension of the schedule or for reimbursement of direct extra costs caused

by such suspension shall be duly documented by Vendor.

Upon notice from JNK HEATERS COMPANY LIMITED, Vendor shall promptly resume the

performance of the Order.

20.5 Receivership, Insolvency, Bankruptcy

Any and all judgment or other decision of equal value such as a petition for winding up,

decision of liquidation, of bankruptcy or other petition presented for appointment of any

receiver or administrator in respect of the Vendor’s business must be immediately notified

to JNK HEATERS COMPANY LIMITED by the Vendor.

In case of petition presented for appointment of a receiver or an administrator, JNK HEATERS

COMPANY LIMITED will request in writing whether the receiver or the administrator insists

upon performance of the Order.

If the administrator does not insist upon the continuation of the performance of the Order,

or in case of silence for more than one (1) month from the date of issuance of the above

mentioned written request, the Order will be deemed terminated as of the expiry of the one

(1) month period.

A judge may modify such time period before its expiry.

The termination of the Order shall be effective as of the day of the receiver’s decision not to

pursue the performance of the Order or at the expiry of the above mentioned one (1) month

period, whichever comes first.

In case of bankruptcy or insolvency, the termination of the Order is deemed effective as of

the date of the bankruptcy or insolvency judgment, unless the judge expressly authorizes

continuation of the business of the SELLER.

CLAUSE 21 - APPLICABLE LAW AND JURISDICTION

The Order shall be governed and construed according to Indian law.

Any or all disputes regarding the validity or performance of the Order, which cannot be

amicably be solved within thirty (30) days from the notice of dispute, shall be submitted to

the Court in Mumbai.

However, notwithstanding any pending settlement of dispute, Vendor shall continue the

performance of the Order as per the Order.

CLAUSE 22 – SPARE PARTS

Vendor shall ensure the availability of necessary spare parts, special tools for the

maintenance of the Supply for a duration of ten (10) years.

CLAUSE 23 – IMPORT / EXPORT LICENCE

23.1 Vendor shall be responsible for identifying if any export license is required in any place

where the Supply is to be performed, for any parts of the Supply, including import licenses

for any materials and/or tools used by Vendor.

23.2 Where compulsory, Vendor shall obtain such import / export license from the relevant

authorities at its own costs. Vendor shall take all necessary measures to ensure that all

export/import licenses and shipping documentation are arranged and issued in a timely

manner consistent with the constraints of the Order.

23.3 Vendor shall provide JNK HEATERS COMPANY LIMITED with all necessary documents

for JNK HEATERS COMPANY LIMITED to obtain customs clearance for the, exportation of

the work or re-exportation of any part of the work.

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Vendor is responsible for obtaining and maintaining at his own cost all licences, visas,

permits, clearance, certifications, governmental or administrative authorisations necessary

for the performance of the work.

*****

general terms and conditions_jnk

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