General Terms and Conditions
1 In General
1.1 For the purposes of these general terms and conditions, the following terms shall have the following meanings:
1.2 Client: the natural person or legal entity, having a legal relationship with SCMO;
1.3 SCMO: the partnership established under the law of Samoa, as such doing business as Supply Chain Management Outsource Limited;
1.4 Agreement: any arrangement between SCMO and Client, based on which SCMO carries out a performance for the benefit of Client;
1.5 Performance: obligation to perform to the best of one's ability.
These general terms and conditions shall apply to any performance delivered, offer made, legal act performed, and assignment carried out by SCMO for Client, unless otherwise agreed upon in writing.
3 Conclusion of the Agreement
3.1 These general terms and conditions shall constitute an integral part of any Agreement, irrespective of the way in which it has been concluded.
3.2 An Agreement shall be concluded, among other things, as soon as Client has signed the offer or engagement letter, and this signed offer or engagement letter has been received or accepted by SCMO.
3.3 The Agreement can also be concluded verbally, but not until after and as soon as SCMO has accepted same in writing.
3.4 As long as the Agreement has not been concluded, SCMO reserves the right to use the capacity available within its organization elsewhere.
3.5 The offer or engagement letter shall be based on the information provided by Client at that time. The offer or engagement letter is deemed to be a correct and complete reflection of the (contents of the) Agreement.
3.6 The Agreement supersedes and fully replaces all previous offers, correspondence, agreements, or other communication, irrespective of whether the Agreement has been concluded in writing or verbally.
3.7 The Agreement has been entered into for an indefinite period of time, unless it appears from its contents or its nature that it has been entered into for a definite period of time.
4 Cooperation by Client
4.1 Client shall be responsible for providing access to all information and documents that SCMO needs for a proper execution of the Agreement. Client is obligated to provide SCMO with this information and these documents in time, in the manner desired, and in the correct form.
4.2 Client is obligated to inform SCMO without any delay about facts and circumstances that may be relevant for the execution of the Agreement.
4.3 Client shall guarantee that the information and documents it has provided are correct, complete, and reliable, also if they are coming from a third party. Exceptions to the above can be made if ensuing otherwise from the nature of the Agreement.
4.4 Client shall make sure to give SCMO the disposal of office space and all other provisions and facilities, required and/or necessary for SCMO to execute the Agreement. This shall apply to among other things providing computer, telephone, and fax facilities. If and in as far as Client gives SCMO the disposal of computer facilities, it shall be and remain liable and responsible for adequate backup protection and anti-virus procedures. SCMO shall follow anti-virus procedures if it uses the facilities Client has made available to SCMO.
4.5 Client shall give SCMO the disposal of its staff, in order to give SCMO the opportunity to execute the Agreement. If specific staff is needed, this shall be laid down in the Agreement. Client shall guarantee that the staff made available by it is sufficiently educated, competent, and experienced. If Client is not able to make the staff required available, it shall be responsible for making available additional or other staff that meets the requirements to be imposed on it.
4.6 After parties have carried out the performance ensuing for them from the Agreement, SCMO shall return the original documents put at its disposal, to Client at Client's request. If this is necessary for the reliability and/or completeness of the performance carried out by SCMO, copies of aforementioned original documents shall be put into SCMO's files. All SCMO's files shall be and remain property of SCMO.
4.7 All additional costs and fees resulting from delay in the execution of the Agreement, because Client has not, and/or not timely, been able to make the information, documents, facilities, and/or staff requested available, shall be for Client's account. Before these additional costs and/or fees are charged, SCMO shall notify Client of the delay and offer it a reasonable period of time to comply with what has been requested from it as yet in time.
5 Execution of the Agreement
5.1 SCMO shall execute the Agreement in accordance with the applicable professional standards.
5.2 SCMO shall stipulate in what way the Agreement is executed, unless otherwise agreed upon in writing. SCMO shall stipulate which of its employees executes the Agreement, in which respect Client's wishes shall be taken into account as much as possible. If the name or names of SCMO employees have explicitly been inserted in the Agreement, SCMO shall make sure, within the limits of its ability, that this employee is or these employees are available to execute the Agreement. The Agreement's duration shall affect this intention to a large extent.
5.3 SCMO may only carry out more activities than for which an assignment was given, and charge same to Client, if Client has given prior consent to do so. The requirement of consent shall not apply if carrying out more activities may, in reason, be deemed to fall within SCMO's duty of care.
5.4 Client shall not be allowed to involve third parties in the execution of the Agreement without SCMO's written consent. SCMO shall not be allowed to involve third parties, other than third parties in any way constituting part of the organization of Supply Chain Management Outsource Limited in the execution of the Agreement without Client's prior written consent.
6.1 SCMO, also including its employee(s) involved in the execution of the Agreement, shall observe confidentiality with regard to all Client's information it has obtained during the execution of the Agreement. Exceptions to the above can be made in the event that SCMO and/or its employee(s) involved in the execution of the Agreement is/are obligated to disclose certain information on account of a statutory or professional obligation.
6.2 SCMO shall not use the information provided to it by Client within the framework of the execution of the Agreement for any other purpose than for which it has been obtained. Exceptions to the above can be made in the event that SCMO becomes involved in disciplinary, civil, or criminal proceedings in which this information or these documents may be/are relevant.
6.3 Client may not disclose the contents of reports, opinions, advice and/or any other written or verbal statement of SCMO, not made with the object to provide information to third parties, to third parties without SCMO's prior written consent.
6.4 SCMO shall also impose the obligation it is under, as mentioned in paragraphs 6.1 and 6.2, on third parties it has involved in the execution of the Agreement with Client's prior consent.
6.5 SCMO shall have the right to disclose its activities in overall terms, not in detail, to third parties, including (prospective) clients, with the sole object to convince the third parties of SCMO's expertise in this field, and on the conditions that, by doing so, SCMO does not act in conflict with the obligations ensuing for it from the other paragraphs of Article 6.
7 Intellectual Property
7.1 SCMO reserves all rights, including all intellectual property rights, having been used by it or being used and/or developed by it, in as far as originating from the law.
7.2 Client shall be prohibited from reproducing, publishing, or using works, including computer programs, system designs, work methods, opinions/advice, model contracts, and other works of intellectual property as meant in paragraph 1 of this Article, all this in the broadest sense of the word, for commercial purposes, alone or together with a third party, unless these goods have been developed and/or made by SCMO with the object of being reproduced, published or used for commercial purposes. Therefore, publications require SCMO's prior written approval. Client shall have the right to use and reproduce documents written by SCMO within its own organization, as long as this is in accordance with the object of the Agreement. This provision shall remain valid, even if the Agreement is terminated prematurely.
7.3 Client shall be prohibited from giving a third party or third parties the disposal of works produced by SCMO, whether or not within the framework of the execution of the Agreement, which works are protected by rights of intellectual property, other than with the object to obtain an opinion from this third party or these third parties as to the quality of SCMO's work.
8.1 SCMO shall have the right to adjust the fee agreed upon during the term of the Agreement, if salaries and/or prices change in the meantime, unless parties have agreed otherwise. This change may only be implemented when 3 months have lapsed after the conclusion of the Agreement.
8.2 The fee to be charged by SCMO shall be exclusive of expenses and costs of third parties involved in the execution of the Agreement, as well as any tax, if any, unless parties have agreed otherwise.
8.3 The fee charged to Client by SCMO, if necessary augmented by the expenses and the costs of third parties involved in the execution of the Agreement, shall be charged to Client per month, per three months, annually, or at the termination of the Agreement, unless parties have agreed otherwise. The taxes due, if any, in respect of these amounts, shall be charged separately.
9.1 Client is obligated to pay the fee charged to it in conformity with Article 8 of these general terms and conditions, possibly augmented by the expenses and turnover tax, if any, mentioned in that Article, on the date of the invoice. Client shall not have the right to apply a deduction to the amount charged to it. Furthermore, Client shall not have the right to postpone payment of the amount charged to it under any circumstance.
9.2 Payment shall take place in the currency charged. Payment shall take place by means of giro (bank) transfer into one of the account numbers indicated by SCMO.
9.3 If Client fails to pay the amount charged to it within the period of time mentioned in paragraph 9.1, on the condition that SCMO has at least once, in any case, urged Client in writing to pay, Client shall be in default without further notice. In this situation, Client shall owe SCMO the cumulative interest of 1.5% per month in respect of the outstanding amount, from the date of the written summons until the day of full payment, as well as 15% of the principal in respect of extrajudicial costs. All judicial costs incurred by SCMO in connection with the collection of payment shall be for Client's account. The above shall not affect all SCMO's other rights.
9.4 SCMO shall have the right to claim from Client that it immediately provides security in whatever form, if SCMO suspects that Client's financial position gives rise to this. For the same reasons, SCMO shall have the right to claim advance payment from Client. In the event that Client fails to provide the security demanded and/or to pay the advance payment demanded, SCMO shall have the right to postpone the execution of the Agreement without any prior written notification, in which case everything SCMO has to claim from Client at that moment shall become payable immediately.
9.5 In the event that the Agreement has been entered into by two or more Clients jointly, they shall be severally liable for the payment of the amount charged to them based on Article 8, as well as severally liable for the obligations on account of paragraphs 9.1 through 9.5.
10.1 SCMO shall be informed in writing of complaints as regards the execution of the Agreement and/or the amount charged by it based on Article 8 within thirty days after the date of the documents or information relating to Client's complaint, or within thirty days after discovery of the shortcoming, provided that Client proves that it could not in reason have discovered the shortcoming earlier.
10.2 Complaints as meant in paragraph 10.1 shall not discharge Client in any case from its obligation to pay the fee, costs and turnover tax, if any, charged to it.
10.3 If Client's complaint is justified, Client shall have the possibility, at its option, to cause the amount charged to it to be adjusted afterwards, to cause SCMO's work, rejected by Client, to be rectified or corrected without any fee or expenses being charged to it in respect thereof, to amend or terminate the Agreement in exchange for a refund of a part of what has already been paid in the meantime.
11 Period of Execution
11.1 If Client has been requested to make any advance payment and/or to make information and/or documents available to SCMO, which are necessary for the execution of the Agreement, the moment on which SCMO shall start carrying out its obligations shall not start until the moment the full amount has been paid and/or all information and/or documents have been made available to SCMO.
11.2 The period of time in which SCMO will execute the Agreement shall depend on many factors, such as the quality of the information made available by Client, Client's and third parties' cooperation, so that the dates on which SCMO will have executed the Agreement may not be considered deadlines, unless this has been explicitly agreed upon.
11.3 Client may not terminate the agreement (prematurely) in connection with the exceeding of the period of time agreed upon, unless it has been established that SCMO is not able to ever execute the Agreement, or to complete the performance ensuing for it from the Agreement, in whole or in part, within a reasonable period of time after the lapse of the dates agreed upon.
12.1 Parties shall have the right to terminate the Agreement (prematurely) with due observance of a notice period of thirty calendar days.
12.2 Termination shall take place by means of a certified letter to the other party.
12.3 In the event that Client terminates the Agreement (prematurely), it is obligated to compensate SCMO the entire loss SCMO suffers as a result of the premature termination of the Agreement, unless the termination has been prompted by reasons and circumstances to be attributed to SCMO. The loss to be compensated shall include, among other things, the costs relating to the (premature) termination of the agreement with the third party involved in the execution of the Agreement.
12.4 In the event that SCMO terminates the Agreement prematurely, Client shall be entitled to assistance from SCMO as regards the transfer of the work to third parties, unless the termination has been prompted by facts and circumstances that can be attributed to Client.
12.5 In the event that the Agreement is terminated (prematurely), SCMO shall retain its right to payment of the fee until the moment the Agreement has been terminated, or a proportional share of the fixed amount in respect of a fee, agreed upon in advance, as well as the payment of expenses as regards the execution of the Agreement until the moment of termination. After Client's payment of all its obligations, the interim results of the execution of the Agreement until the moment of termination shall be made available to Client, all rights reserved.
12.6 Parties shall have the right to terminate the Agreement (prematurely) without observing a notice period, by means of a certified letter, if: the other party is adjudicated bankrupt, or at any rate files for bankruptcy (itself), the other party is granted an official moratorium, or at any rate files for an official moratorium (itself), and/or the other party does not, or at any rate not fully, comply with its obligations under this Agreement. Moreover, SCMO shall have the right to terminate the Agreement (prematurely), without observing a notice period, by means of a certified letter, if the control in Client's enterprise changes, or if Client discontinues its business operations.
12.7 In the event that the Agreement has been terminated (prematurely), each of the parties shall immediately return to the other party all goods, objects, and documents, which belong to the other party in ownership and are in possession of one party, on the condition that SCMO may keep a copy of each document for its files. Paragraphs 12.3 and 12.5 shall be applicable to this provision.
13.1 SCMO shall execute the Agreement in accordance with the applicable professional standards and with due observance of the care that may be expected from it. If an error has been committed due to incorrect or incomplete information, in the broadest sense of the word, made available by or on behalf of Client, SCMO shall not be liable for the consequences thereof. If Client proves that it has suffered loss as a direct result of an imputable error of SCMO, which error SCMO would not have committed if it had observed the normal care to be expected of SCMO, SCMO shall be liable for the loss suffered by Client.
13.2 SCMO's liability shall be limited to a maximum of the fee charged in respect of the last six months, and in any case limited to a maximum of USD 5,000.00, unless there is question of intention or gross negligence. In the latter case, the payment shall not exceed the payment of SCMO's liability insurance.
13.3 Client shall indemnify SCMO against all claims of third parties on account of incorrect or incomplete information, in the broadest sense of the word, made available by or on behalf of Client, unless Client can prove that the liability is not related to Client's error or negligence, and/or has been caused by gross negligence or intention on SCMO's side.
13.4 The limitation of liability laid down in Article 13.2 shall also apply towards third parties involved in the execution of the Agreement.
13.5 SCMO shall not be liable for any shortcoming under this Agreement, if this shortcoming is the direct or indirect consequence of defects in SCMO's and/or Client's hardware, software, and film-ware for correctly generating processes and/or receiving data-related information. Furthermore, SCMO shall not be liable for any shortcoming in the execution of the Agreement, if this shortcoming is the direct consequence of changes made by Client, its staff, third parties, or enterprises in any way affiliated to Client, in the (result of the) work carried out by SCMO.
14 Taking over Contract/Indemnification
14.1 Client shall not be allowed to transfer (any obligation from) the Agreement to third parties, unless SCMO explicitly agrees to this. SCMO shall have the right to attach conditions to this consent. Client shall undertake in any case to then impose all relevant (payment) obligations under the Agreement and these general terms and conditions on the third party. Apart from this third party, Client shall also remain liable at all times for the obligations under the Agreement and the general terms and conditions, unless parties explicitly agree otherwise.
14.2 Client shall indemnify SCMO as regards all claims of third parties that might arise on account of Client's not, or incorrectly, complying with any obligation under the Agreement and/or these general terms and conditions.
Client and SCMO shall observe the relevant regulations of independence of national and international regulators. In order to enable SCMO to adhere to the regulations of independence in question, Client is obligated to inform SCMO timely, correctly, and completely, about the legal structure and the control structure of (the group) Client (constitutes part of), all (financial) joint ventures concerning its enterprise or organization, and this in the broadest sense of the word.
16 Electronic Communication
During the execution of the Agreement, Client and SCMO shall be able to communicate with each other by means of electronic communication at the request of one or both of them. Both SCMO and Client acknowledge that the use of electronic communication entails risks, such as -but not limited to -deformation, delay, and virus.
Client and SCMO shall hereby establish not to be liable towards each other for the loss that might ensue on either or both sides on account of the use of electronic communication, including the acts and omissions of the service provider. Both Client and SCMO shall do or omit all that may be expected from each of them in reason in order to prevent aforementioned risks from occurring.
17 Lapse of Rights
Unless otherwise agreed upon in these general terms and conditions, legal claims and rights of action that Client has on SCMO under the Agreement, for whatever reason, shall be lost after the lapse of one year after the day on which Client has acquainted itself, or at any rate has been able to acquaint itself in reason, with the existence of such right.
18 Waiver of Rights
SCMO's not immediately enforcing any provision or condition in the Agreement shall not affect or limit SCMO's rights and powers under this Agreement. Waiver of the right of any provision or condition in the Agreement shall only be in force if it has been effected in writing. Invalidity or nullity of any provisions of this Agreement shall not affect the validity of the other provisions of this Agreement. Parties shall then undertake to adjust and/or amend any null and void or voidable part as meant above in such a way that the part in question will be amended in a legally valid way, and suits parties' intention.
19 Scope after Lapse of Agreement
The provisions of these general terms and conditions, the purport of which is, explicitly or implicitly, to retain their validity after lapse of the Agreement, shall also bind parties after the lapse of the term of the Agreement.
20 Conflicting Clauses
In the event that conflicts come to light between a provision contained in these general terms and conditions and a provision contained in the Agreement, the provisions of the latter shall prevail.
21 Change in Staff
21.1 During the term of the Agreement, or within a year after termination thereof, none of the parties shall hire persons who are, or used to be, charged with the execution of the Agreement, or start negotiations with them in order to come to a possible employment.
21.2 The penalty agreed by the parties in case the other party hires one of these persons is six (6) months of the biggest of salary or revenues generated by this person.
21.3 Parties may deviate from this provision by mutual consent
22 Applicable Law / Competent Judge
22.1 The Agreement between parties to which these general terms and conditions apply shall be governed by the laws of Samoa.
22.2 Conflicts between parties concerning the Agreement shall be put before the competent Judge of the Court of First Instance of Samoa, with the exclusion of any other competent Judges.