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General Delivery Terms and Conditions of Schilt Engineering B.V.,
registered in Schoonhoven at De Diamant 12. Filed with the Chamber of Commerce in Rotterdam on 16 February 2010.
Article 1 Definitions; scope of application
1.1 In these Terms and Conditions the following terms shall have the following meanings:
Supplier: Schilt Engineering B.V, which offers and delivers goods and/or services; Buyer: party transacting with the Supplier.
1.2 These Terms and Conditions apply to agreements – including the acts performed to conclude the agreements – for the delivery of goods and/or the provision of services and/or the completion of work. They also apply to any additional or subsequent agreements. Furthermore they apply to any kinds of services provided by (a member of staff of) Supplier to a (member of staff of) Buyer that is (in some way) connected with the agreements referred to above in the first sentence (such as for example the provision of technical advice free of charge).
1.3 These Terms and Conditions apply exclusively in the sense that specific stipulations and general terms and conditions of Buyer shall not apply except if and insofar as they are explicitly accepted by Supplier in writing. A deviating stipulation (condition) applies exclusively to the situation in respect of which the deviation has been agreed.
1.4 If a “Statement of Guarantee for Used Machines” is issued on the purchase/sale or exchange of a used machine, the Terms and Conditions in the Statement of Guarantee shall also apply. Insofar as the Terms and Conditions in the Statement of Guarantee deviate from these Terms and Conditions, the Terms and Conditions in the Statement of Guarantee shall prevail.
Article 2 Offers; informative material
2.1 Unless explicitly stated otherwise, all offers made by Supplier, however these are made, are free of engagement in the sense that even after Buyer has accepted an offer made by Supplier, Supplier is authorised to revoke the offer within three full calendar weeks after such acceptance
2.2 Unless explicitly stated otherwise, statements and specifications in relation to sizes, capacities, performances or results in images, drawings, catalogues, price lists, advertising material etc. are merely approximations and are not binding for Supplier.
Article 3 Delivery; obligation to accept; time and location of delivery; transfer of risk and ownership
3.1 Supplier is entitled to making partial deliveries.
3.2 Buyer is obliged to take delivery of goods and services in respect of which it has been agreed that Supplier shall deliver these and to do so at the time and location agreed between the parties under the relevant agreement and/or these Terms and Conditions.
3.3 The delivery or performance term shall commence on the conclusion of the agreement or, if it has been agreed that an amount shall be paid to Supplier prior to or on the commencement of the execution of the agreement, once this amount has been received in full. If, for the execution of the agreement, Supplier depends partly on the cooperation of Buyer and Buyer fails in relation to this in whatsoever way, the term for the execution of the agreement shall be extended by a term that Supplier reasonably needs to overcome the delay caused by Buyer’s failure.
The same shall apply if delays in the execution of the agreement arise due to requests by or on behalf of Buyer or a government agency to alter, adjust or supplement that which has been agreed. In addition the extra costs incurred by Supplier in connection with the delay are payable by Buyer. Supplier shall only be in default due to exceeding the term if after the agreed term has been exceeded Buyer has given written notice of a further reasonable term (which term may however not be less than fourteen calendar days calculated from the date the notice is received) and Supplier has still failed to fulfil its delivery obligation for reasons attributable to Supplier.
3.4 Unless explicitly agreed otherwise, delivery shall be made in the Supplier’s factory or warehouse.
3.5 The risk relating to an item to be delivered by Supplier shall be transferred permanently to Buyer on arrival at the delivery location. If on the delivery date agreed between Supplier and Buyer, Buyer does not take delivery for reasons not attributable to Supplier, the risk shall be permanently transferred to Buyer on that date. All costs in connection with storage and transport incurred by Supplier with effect from the aforesaid date of delivery in relation to the item shall be fully payable by Buyer.
3.6 Even if Supplier has undertaken to transfer the ownership of an item, despite the delivery, the ownership of the item shall remain with Supplier until Supplier has received full payment from Buyer of that which is due in relation to the delivered goods and services and in relation to the failure to pay that which is payable by Buyer to Supplier. Buyer may only use items that are still the property of Supplier within the context of its regular business operations. However Buyer may not sell, rent or encumber the items with securities or other limited commercial rights. If Buyer fails to fulfil any payment obligation, Supplier is entitled to repossess goods that are still subject to retention of title, without the cooperation of Buyer. Supplier is not obliged to pay compensation to Buyer for the loss incurred by Buyer in connection with the repossession. The costs of the repossession and any realisation of the goods are fully payable by Buyer. That which Supplier can still claim from Buyer shall be reduced by the value that the repossessed goods have for Supplier on the market. However Supplier never has to use a value that exceeds the price for that good agreed with Buyer.
Article 4 Manual; instruction
4.1 In relation to machines and installations to be delivered Supplier shall provide Buyer with information about the construction, operation and maintenance of the machines and installations in the form of a manual or instruction book. If the Buyer is Dutch, these shall, where possible, be in the Dutch language.
4.2 Buyer is entitled to instruction free of charge, where such has been agreed under the relevant agreement.
Article 5 Drawings; software etc.
5.1 All drawings, images, catalogues, software and other data, not being a manual or instruction book as referred to in article 4, which the one party gives to the other, shall remain the property of the one party and should be returned at the first request of this party. Unless written permission is given beforehand, said data may not be copied or disclosed to third parties.
Article 6 Price; price adjustment
6.1 Unless explicitly stated otherwise, a stated or agreed price shall not include VAT or any other government levy payable in connection with the agreement and, if Supplier is to arrange for the transport of goods, the costs in connection with packaging, containers, transport and insurance shall also not be included. The items stated in the above sentence can be charged in full separately by Supplier.
6.2 If the costs incurred by Supplier to execute the agreement are higher because the price of major cost factors such as wages, social security contributions and other insurance premiums, materials, foreign currency values etc. have risen since the last (price) offer made by Supplier, Supplier is entitled to charge these higher costs by means of price adjustments, provided that these costs amount in total to more than 0.5% of the agreed price.
6.3 If Supplier and Buyer have a agreed a price in some currency other than the Euro and this currency loses value in relation to the Euro after the last (price) offer has been made by Supplier, Supplier is entitled to adjust the price as necessary to compensate for the value decrease up to the date on which payment has been made in full.
Article 7 Payment
7.1 Insofar as not explicitly stated otherwise, the agreed price should be paid in full, without any reduction or settlement within two weeks after the date stated on the relevant invoice, by means of a transfer to the bank account indicated by Supplier. Supplier is also entitled to send invoices for partial deliveries.
7.2 Unless Supplier has explicitly agreed to delayed payment in writing, Buyer is not entitled to suspend the payment of the price because it believes the delivered goods or performed services to be defective.
7.3 If payment is not made on time, without such affecting Supplier’s other statutory rights or rights under the agreement and without a notice of default being required, Supplier is entitled to:
a. suspend the execution of the agreement in respect of which Buyer has defaulted on its payment as well as any other agreement with Buyer;
b. reimbursement of its losses as a result of the delay in payment, which reimbursement shall at least consist of the statutory commercial interest (as referred to in article 6:119a and 6:120 paragraph 2 of the Netherlands Civil Code). The interest is payable with effect from the date on which Buyer defaults on its payment until the date on which Buyer has paid all that is due to Supplier in full.
Each time at the end of a year said interest shall also be payable on the interest already forfeited but not yet paid;
c. reimbursement of all judicial and extra judicial costs, the latter being at least 15% of that which Buyer has not paid on time and which Supplier is claiming.
7.4 If Supplier has reason to doubt Buyer’s compliance with its payment obligation - subject to the understanding that the following circumstances on the part of Buyer shall always constitute sufficient reason for doubt: repeated failure to pay, seizure of Buyer’s property, suspension of payments, bankruptcy, full or partial cessation of operations - all amounts payable by Buyer to Supplier shall become due and Supplier is entitled to suspend compliance with its obligations until Supplier has been paid in full or until Supplier is satisfied that it has received sufficient security for payment. If, within fourteen (14) calendar days after the request for such, payment has not been made in full or sufficient security has not been furnished, Supplier is entitled to declare the relevant agreement dissolved without this affecting its right to the reimbursement of loss incurred by it and/or to be incurred by it in the future.
Article 8 Force majeure
8.1 Force majeure on the part of Supplier are circumstances of a factual, legal or some other nature that arise through no fault of Supplier, whether or not they are foreseeable, which delay the prompt compliance with the agreement or which make
such exceptionally difficult. Such circumstances include: strikes; sit ins; production interruptions due to machine failure, disruptions in energy and water supply or fire etc; import, export and production bans and other government measures; transport obstructions; failures of suppliers and agents; insofar as Supplier is not culpable in relation to these circumstances.
8.2 If force majeure arises on the part of Supplier, Supplier shall inform Buyer with appropriate speed. Unless there is no doubt that the force majeure will continue for thirty full workdays or longer, the obligations in respect of which the compliance is delayed by the force majeure or in respect of which compliance is made exceptionally difficult, and the corresponding obligations that have not yet been fulfilled will be suspended. As soon as there is no doubt that the force majeure will continue for longer than thirty full workdays or as soon as the force majeure has continued for longer than thirty full workdays, each party is entitled to dissolve the agreement insofar as this is affected by the force majeure, by means of a written statement addressed to the other party. Insofar as Buyer has already made payments in relation to the dissolved agreement or the dissolved part of the agreement, these amounts shall be paid back to Buyer by Supplier.
Article 9 Assembly, installation and/or commissioning
9.1 If Supplier delivers goods, Supplier shall only be responsible for assembly, installation and/or commissioning if and insofar as such has been explicitly agreed.
9.2 If and insofar as Supplier is responsible for the assembly, installation and commissioning, the following shall apply:
a. Buyer shall assist as required so that Supplier can execute the assembly, installation and/or commissioning promptly and properly, or can arrange for this to be executed. Buyer shall always make timely arrangements for: good and safe access to the work space, if required outside the Buyer’s regular working hours; permits, insofar as these are required for the performance of the work; an unloading bay and adequate storage space, where required covered and lockable; the required energy, water, fuel and lubricating oils and, unless agreed otherwise, the required ladders, scaffolding and other equipment indicated by Supplier.
b. Buyer is responsible for ensuring that any work that Supplier is to work on further when assembling, installing and/or commissioning and with respect to which it has not been agreed that this work shall be performed by Supplier, such as for example dismantling and any electrical and plumbing work, any excavation, masonry, foundation, carpentry and painting work, are completed promptly and properly. Buyer shall consult Supplier regularly and shall provide Supplier with any information required for a proper coordination of both parties’ work.
c. Buyer shall give all the assistance required to realise and maintain safety in the workplace while also observing the relevant statutory and company regulations. In particular Buyer shall be responsible for arrangements in connection with fire.
Article 10 Quality; approval; correcting defects; servicing
10.1 Supplier delivers goods and performs work that meet the quality requirements that have been explicitly agreed and the statutory requirements, in particular those relating to operating, road use and safety, which are in force in the Netherlands when Supplier makes its final offer. If Supplier becomes aware of new relevant statutory regulations in the Netherlands after the final offer is made by Supplier but prior to the delivery, Supplier shall inform Buyer of such. The performance to be delivered by Supplier shall be adjusted in mutual consultation. The delivery term shall be adjusted insofar as such is required and the additional costs incurred by Supplier due to the adjustment shall be borne by Buyer. Where no explicit quality requirements have been agreed in relation to the goods to be delivered or the work to be performed, the quality shall not be lower that the good average quality.
10.2 Where the possession and/or use of the goods requires a license, Buyer is responsible for arranging such.
10.3 After the goods have been delivered or after Supplier has informed Buyer that it has completed the agreed work, Buyer should examine the goods and/or work carefully and thoroughly for completeness and soundness as soon as possible but in any event within ten (10) workdays after the delivery or after notification. Buyer can make no claims against Supplier in relation to deficiencies and/or defects, (being failures to comply with that which has been agreed), which Buyer could have observed during a careful examination conducted in the period stated in the previous sentence or which Buyer did observe but subsequently failed to make a written report of such to Supplier within twenty-one (21) calendar days after the delivery or the notification. The above shall also apply in relation to partial deliveries.
10.4 Supplier shall where possible correct deficiencies or defects that are observed during the examination referred to in 10.3 and that are reported promptly to Supplier in writing by means of an addition or, at Supplier’s discretion, repair or replacement, as well as deficiencies or defects that could not have been observed during the examination referred to in 10.3 but that still came to light within six months after the delivery or the notification by Supplier and that are reported in writing to Supplier within ten (10) calendar days after the observation. Insofar as not provided otherwise below in 10.5, such correction shall be made for the account of Supplier.
10.5 The following provisions shall also apply in relation to the correction of deficiencies and defects:
a. Supplier shall endeavour to correct the deficiency or defect as soon as the given circumstances allow or shall arrange for such correction to be performed. Buyer shall give any assistance required for this.
b. The corrections shall be made where possible at a location to be indicated by Supplier. The goods shall travel to and from this location for the account and risk of Buyer.
c. If the corrections are made outside the Netherlands the travel and accommodation expenses of the persons conducting the investigation and making the corrections shall also be for the account of Buyer.
d. Goods or parts that are replaced shall automatically become the property of Supplier.
e. If deficiencies or defects arise in relation to goods that Supplier obtained from third parties or in relation to work that Supplier has instructed third parties to perform, then, without prejudice to the provisions in 10.3, the corrections shall only be made free of charge insofar as the third party agrees to bear the costs of the corrections.
f. Buyer has no right vis-à-vis Supplier to have deficiencies or defects corrected that are likely to be the result of usual wear and tear, of improper or careless use (of use not in accordance with the purpose) or of the failure to follow specific directions or instructions given by Supplier or the failure to do so properly.
g. The Buyer’s right vis-à-vis Supplier to the correction of deficiencies and defects shall lapse if Buyer makes the corrections itself or instructs third parties to make such corrections without the prior permission of Supplier.
h. The occurrence of deficiencies or defects shall not form grounds for Buyer to suspend its payment obligations vis-à-vis Supplier. If, even after receiving a written reminder, Buyer still fails to fulfil its payment obligations, Buyer’s right to correction of deficiencies or defects shall lapse.
10.6 If Buyer has a complaint relating to a deficiency or defect that cannot be corrected by Supplier or can only be corrected by Suppler at a disproportionate cost for Supplier, Supplier is not bound to correct the deficiency or defect. In this case the price of the delivery shall be reduced, which reduction shall where possible be made on the basis of consultation between Supplier and Buyer and with due observation of the unit prices established when the agreement was concluded, or the relevant agreement can be declared to be dissolved by either party in writing.
Buyer is only entitled to declare the relevant agreement to be dissolved if the deficiency or defect that cannot be corrected is so problematic for Buyer that despite a price reduction Buyer cannot be reasonably expected to continue the relevant agreement.
10.7 The occurrence of deficiencies or defects, in respect of which Supplier has an obligation to correct, can, the case stated in 10.6 excepted, only form grounds for dissolution of the relevant agreement by Buyer if, even after receiving a written demand of such, Supplier still fails to correct the deficiency or defect within a reasonable time taking all circumstances into consideration.
10.8 Buyer is entitled to free servicing in relation to the delivery of vehicles, machines and installations where such is agreed on the conclusion of the relevant agreement.
10.9 Each claim of Buyer in relation to compliance with, nullification of or dissolution of the agreement shall lapse if Buyer has not validly brought an action against Supplier within six (6) months after it has reported a deficiency or defect on time in accordance with the provisions in 10.3 and 10.4.
Article 11 Conflict with industrial/intellectual property rights
11.1 Supplier is obliged to deliver goods that, in the Netherlands, do not conflict with the industrial or intellectual property rights of third parties. If Buyer is held liable by a third party in relation to the infringement in the Netherlands of an industrial or intellectual property right, Buyer shall notify Supplier forthwith and shall leave the handling and settlement of the third party claim over to Supplier. If Supplier considers a conflict with an industrial or intellectual property right in the Netherlands to be likely, Supplier is entitled, at its discretion and otherwise in consultation with Buyer, to cease the infringement by adapting or replacing the item concerned or by obtaining a licence or to repossess the item concerned on repayment of the price received for such. The costs of the handling and settlement of the third party claim shall be borne by Supplier, which is otherwise not bound to pay any damages.
11.2 If, to execute an agreement with Buyer, Supplier uses drawings, models, instructions etc. of or on behalf of Buyer and a third party holds Supplier liable in connection with an infringement of an industrial or intellectual property right relating to the use of the drawings, models, instructions etc. of or on behalf of Buyer, it shall notify Buyer forthwith. Supplier shall leave the handling and settlement of the third party claim over to Buyer, which shall bear any costs connected with the third party claim incurred by itself or by Supplier. Supplier is entitled to either suspend the execution of the relevant agreement pending the result of Buyer’s action against the third party or to dissolve the relevant agreement with immediate effect without being liable to pay damages.
Article 12 Damage liability
12.1 The following provisions apply in relation to Supplier’s liability vis-à-vis Buyer for loss incurred by Buyer due to an occurrence that is legally attributable to Supplier:
a. For loss consisting of injury or impairment of health, whether or not having resulted in death, and loss resulting therefrom, Buyer has the right to compensation insofar as with respect to this matter Supplier can obtain payment under a liability insurance, subject to the proviso that a maximum sum of EUR 1,125,000 applies for each claim for damages.
b. For loss consisting of damage to or partial or total loss of an item and the loss resulting therefrom, Buyer has the right to compensation insofar as with respect to this matter Supplier can obtain payment under a liability insurance, subject to the proviso that a maximum sum of EUR 45.450 applies for each claim or each series of connected claims.
c. For loss other than that stated above in a. and b. Buyer has no right to compensation unless this is the result of intent or recklessness (gross negligence) on the part of Supplier itself or on the part of a person who clearly fulfils a top managerial position in Supplier’s company.
d. Supplier is not liable for loss that comes to light twelve (12) months after the occurrence causing the loss took place and which is legally attributable to Supplier. Without prejudicing the provisions in the above sentence, a claim for compensation shall lapse if within six (6) months after the loss has come to light, no legal action has been brought against Supplier in relation to such loss.
e. If Supplier receives a third party claim for loss resulting from an occurrence that can legally be attributed to Supplier within the context of its relationship with Buyer, Buyer indemnifies Supplier against third party claims insofar as Supplier must pay more damages to the third party than it would have to pay Buyer if Buyer would have held Supplier liable for its own loss.
f. If Supplier (or a member of Supplier’s staff) is held liable by a third party in relation to loss resulting from an occurrence that is in any way legally attributable to (a member of staff of) Buyer, Buyer indemnifies Supplier against the third party claims. g. If Buyer holds Supplier liable on grounds of a claim for the compensation of loss acquired from a third party in respect of which Supplier is in any way involved in the cause, directly or indirectly, Supplier can also invoke the above provisions vis-à-vis Buyer.
h. The above provisions shall also apply for the persons who are in any way involved in the execution of Supplier’s obligations vis-à-vis Buyer.
Article 13 Applicable law; competent court
13.1 The legal relationship(s) between Supplier and Buyer shall be governed by Dutch substantive law. The Vienna Sales Convention of 11 April 1980 that entered into force in the Netherlands on 1 January 1992 is not applicable.
13.2 Insofar as mandatory legal provisions do not require otherwise and parties do not agree on arbitration, the court within the jurisdiction of which the Supplier has its principal place of business, has exclusive jurisdiction to hear disputes arising between Supplier and Buyer concerning or related to a legal relationship between them and not amicably resolved. However, Supplier remains entitled to choose to have the dispute heard by the court within the jurisdiction of which the Buyer has its principal place of business or in which a branch of Buyer is located that is closely involved in the dispute.
13.3 If parties agree upon arbitration, said arbitration shall, unless otherwise agreed at that time, be governed by the current arbitration rules of the Court of Arbitration for the Metal Industry and Trade in The Hague.