0. Preamble
These Conditions of Sale and Delivery shall apply when the parties agree in writing. When the Conditions of Sale and Delivery apply to a specific contract, modifications of or deviations from them must be agreed in writing.
The object(s) to be supplied under these conditions is (are) hereinafter referred to as the Product.
1. General
Unless otherwise agreed in writing, these conditions shall apply to all orders accepted by Supplier. The purchase conditions of Purchaser shall only form part of the contract insofar as those purchase conditions have been explicitly accepted by both parties. In case of acceptance of the purchase conditions, or parts thereof, of Purchaser, these conditions shall not withstand anything to the contrary in such purchase conditions, apply insofar as they do not conflict with the purchase conditions of Purchaser.
These conditions shall form an integral part of all conditions governing the contract; specific conditions shall always prevail.
2. Technical Information
The contract shall be based upon the designs, drawings, and all further technical or other written information, including dimensions, weights, etc. agreed upon per the date of the order, hereinafter called Technical Information. Supplier shall, however, be entitled at his own expense to deviate with minor changes from the Technical Information, provided that such minor changes will not be in conflict with Purchaser's requirements.
In the design and engineering phase of the Product; that starts at acceptance of the order, at least one Design Review will be made; a Final Design Review (FDR) at the end of the design and engineering phase.
The FDR finalises the engineering phase with the total concept to which the Product will be made accordingly; the Final Design Review will be accepted by both parties in writing.
During the design and engineering phase both Purchaser and Supplier can adept the Technical Information. Supplier reserves the right to adjust the price in case changes have to be made in the Technical Information at Purchaser's request or pursuant to additional data, provided by Purchaser after the date of the order or pursuant to the incomplete-ness of the technical information to be provided by Purchaser.
All such Technical Information, provided by Supplier shall not be copied, shown, or made available to third parties by Purchaser unless such is necessary in connection with the execution of the order, and it must be returned immediately at a Supplier’s request.
Supplier shall not be obliged to supply construction and production drawings.
3. Prices
Unless otherwise agreed in writing, the contract prices are firm, <Ex works Eindhoven, the Netherlands> , excluding packing and exclusive of Value Added Tax and/or any other taxes imposed on the goods.
The contract prices shall only be subject to:
a. changes in costs resulting from change-orders, or changes in the Technical Information referred to under 2 above;
b. the cost increases resulting from delay or non-fulfilment by Purchaser of his contractual obligations.
4. Payment
Unless otherwise agreed, all agreed payments shall be affected in Euros within 30 days after the invoice date without discount or set-off, to an account to be designated by Supplier.
Standard payment terms are:
• 30 % of the total amount per date of the order
• 30 % after acceptation of the Final Design Review (FDR)
• 30 % after acceptation on Factory Acceptance Test (FAT), before shipment
• 10 % after installation, commissioning and acceptance, but not later than two (2) months after FAT.
Shipment will however start only after receipt of the third payment term.
5. Delivery time
The agreed delivery time shall commence per the date:
a. of the written acceptance by Supplier of the order;
b. of receipt of all information and, if applicable, goods to be provided by Purchaser for the execution of the order;
c. of receipt of the agreed first payment of Purchaser;
d. of receipt of the irrevocable and confirmed letter of credit, if applicable, and/or the agreed corresponding payment sureties, whichever of the foregoing dates is the latest.
The delivery time may be extended by Supplier:
a. if, and to the extent, Purchaser requests change orders or provides additional technical information as mentioned under 2 above;
b. if, and for the period that, Purchaser fails to fulfil his contractual obligations, including, but not limited to, the timely payment of the contract prices;
c. if, and for the period of, a force majeure situation.
Unless otherwise agreed, exceeding the specified delivery time shall not give Purchaser the right to compensation.
6. Delivery, transfer of risk and ownership
Unless otherwise agreed, delivery shall be ; all delivery terms in the contract shall be according to Incoterms 2010.
Supplier shall notify Purchaser in writing and in sufficient time that the goods are ready for shipment (Ready for Shipment Notice). Unless otherwise agreed, the mode of packing shall be determined by Supplier.
In the event that Supplier is not able to ship the goods to Purchaser in accordance with the agreed delivery terms, due to reasons outside Supplier's control, Supplier is entitled to store the goods at Purchaser's expense and risk; the date of storage shall be deemed to be the date of delivery.
As per the date of delivery, the goods shall be for the risk of Purchaser and the ownership of the goods shall pass to Purchaser, unless Purchaser has not fulfilled all his financial obligations, in which case Supplier retains the ownership and is entitled to execute such rights.
7. Completeness of delivery
Insofar as the execution of the contract allows partial shipments, each shipment shall be considered as partial delivery and be paid for accordingly.
In the event that Supplier has complied with his contractual obligations to the extent that the goods can be used in good order by Purchaser, Purchaser is obliged to accept delivery notwithstanding some minor incompleteness of Supplier's obligations, provided it can be reasonably expected that solving such incompleteness shall be effectuated by Supplier within a reasonable time.
8. Inspection and factory acceptance
Before delivery, the goods shall be carefully inspected and/or tested by Supplier. The Purchaser or his authorised representative shall have the right, for his own account and risk, to inspect the goods at the factory of Supplier or as the case may be at a sub-supplier prior to delivery.
A Factory Acceptance Test (FAT) will be held before delivery, all functional specifications according to the accepted test protocol will then be tested.
This Factory Acceptance Test Protocol lists all tests and specifications and will be supplied to Purchaser in advance. The costs for test products and special gasses are for Purchaser’s account.
Supplier shall invite Purchaser, or his authorised representative, in sufficient time to be present at this test. In case of a successful completion of the FAT (minor deficiencies to be repaired before delivery are allowed) Purchaser, or his authorised representative, and Supplier shall sign the Factory Acceptance Protocol; in this protocol all deficiencies will be listed.
In the absence of Purchaser or his authorised representative, at the time of such test, the test protocol signed by Supplier shall be deemed to be accepted by Purchaser. Supplier commits itself in remedy the deficiencies as soon as possible.
If the Factory Acceptance Test show the Product is not according with the contract, Supplier shall without delay remedy any deficiencies in order to ensure that the Product complies with the contract. A new test shall then be carried out at the Purchaser’s request.
9. Supervision of installation
Purchaser shall be responsible for the proper execution of the installation, with qualified personnel, for his own account and risk; a Supplier’s supervisor will lead the installation and commissioning. The costs for this supervisor, including travel-, board- and lodging costs are for Purchaser’s account.
Supplier shall be responsible for the correct and proper instructions for the installation of the Product at site only; in no event Supplier's supervision shall relate to the civil work which is Purchaser's sole responsibility.
Purchaser shall inform Supplier timely on the expected start of and the duration of the installation period.
In the event that the installation of the Product is extended for reasons outside the control of Supplier, all extra costs will be for Purchaser's account.
Purchaser will be responsible for:
a. a one week’s advance notice to Supplier that the Product and all requirements (civil works, facilities etc.) will be ready for installation;
b. the availability of a clean and accessible site where the Product will be installed;
c. the timely availability of qualified personnel in sufficient number to carry out or to assist the installation within the agreed installation
period; names and functions of this personnel shall be given in written notice to Supplier in advance;
d. the availability and provision free of charge of the required utilities including but, not limited to, electricity, water, gasses and auxiliary
equipment; also including telephone and telefax facilities;
e. lockable room for supervisors’ tools;
f. washing facilities.
When Supplier provides own personnel for the installation of the Product, these personnel shall not be asked to hand in their passport. This passport will remain with the personnel at all times. Purchaser can make a copy of this passport for security reasons.
10. Commissioning
Commissioning means the start-up and testing of the Product and ends with a Site Acceptance Test (SAT).
Commissioning shall take place under Supplier's responsibility, unless otherwise agreed. Supplier will be responsible for a list of all activities to be performed during commissioning (Site Acceptance Plan) and test (Site Acceptance Test Protocol); this will be accepted by both parties in advance.
Purchaser will be responsible for:
a. a one week’s advance notice to Supplier that the Product will be ready for commissioning;
b. the availability of a clean and accessible site where the Product has been installed;
c. the timely availability of qualified personnel in sufficient number to carry out or to assist the commissioning within the agreed commissioning period; names and functions of this personnel shall be given in written notice to Supplier in advance;
d. the availability and provision free of charge of the required utilities including, but not limited to, electricity, water, gasses and auxiliary equipment; also including telephone and telefax facilities;
e. lockable room for supervisors’ tools;
f. washing facilities;
g. the availability and provision free of charge of the required products needed for the test runs;
h. the timely availability of qualified personnel in sufficient number to attend the operation and maintenance training; names and functions of this personnel shall be given in written notice to Supplier in advance
11. Acceptance
After successful commissioning and Site Acceptance Test, the SAT Protocol will be signed by both Purchaser and Supplier. After signing, the Product is accepted by Purchaser.
The occurrence of minor deficiencies which in no way prevent the full use of the Product, shall not be a reason to refuse acceptance; these deficiencies will be mentioned in the SAT protocol and will be solved or repaired by Supplier within a reasonable period. This period will also be mentioned in the SAT Protocol In case the commissioning is not carried out within the agreed period for reasons outside the control of Supplier, the goods are deemed to have been accepted, and Purchaser shall be bound to make the contractual payments.
In case that Purchaser starts full production on the Product before signing the SAT Protocol, the Product will also be considered as accepted.
12. Guarantees
Supplier provides the following guarantees during the guarantee period referred to hereafter, subject to the following exclusions and limitations and furthermore as detailed in the contract:
a. Mechanical guarantee:
Supplier guarantees the proper functioning of the Product, the use of new and first class materials, all in accordance with good workmanship prevailing at the time of execution of the contract.
Proper functioning of the Product will relate to the design criteria as referred to the Technical Information of the contract and all conditions given in the Directive of Machinery of the European Community.
Any damage resulting from chemical, electrical or mechanical influences to the Product, caused by or directly related to the materials or processes, used by Purchaser, or by conditions prevailing at Purchaser's site is also explicitly excluded; Purchaser agrees to reimburse Supplier for all costs incurred for the inspection, repair or otherwise of such damage.
Further are specifically excluded from any guarantee the replacement costs of parts subject to normal wear and tear and damage resulting from incorrect operation by Purchaser including but not limited to lack of maintenance. Supplier is obliged to supply timely an operation and maintenance manual.
The mechanical and, if applicable, also the performance guarantee as given in 12b. shall only be valid if the installation and commissioning of the Product supplied under the contract, is carried out under Supplier's supervision.
The mechanical guarantee shall run for a period of maximum 12 months after the date of acceptance as referred to in article 11, or 18 months after date of ‘Ready for Shipment Notice’, whichever date comes first.
If the daily use of the Product exceeds that which is agreed upon in the contract, this period shall be reduced proportionally.
b. Performance guarantee:
In the event that Supplier has guaranteed in writing a specifically agreed upon performance of the Product, such performance guarantee is fully based upon the correctness of the data supplied by Purchaser, specifically with respect to the qualities of the materials to be processed by the Product and the proper operation of the Product by Purchaser. The performance guarantee shall be deemed to be fulfilled and expired as soon as such guarantee has been met during the testing or operation of the Product.
c. General:
If the installation has not been started within one (1) month after delivery (ex-works) of the Product at the Purchaser’s premises or finished with the acceptance test within three (3) months after delivery, all guarantee claims are void.
In the event of a claim under Supplier's guarantee, Supplier shall at his option in consultation with Purchaser, either deliver a new part for the defective part, free of charge to Purchaser's site or send representatives to supervise the repair work at the site of Purchaser.
In either case the costs of dismantling and assembling are for the account of the Purchaser including, but not limited to, the costs of labour, auxiliary equipment and working materials.
Supplier shall take for his account the costs for new parts, free of charge at the site of Purchaser. Travelling expenses and the labour and related costs as well as board and lodging are for the account of Purchaser.
The guarantee period shall be extended only by the period during which the Product has been out of operation caused by any incident or defect that is attributed to Supplier’s liability.
Parts replaced under Supplier's guarantee will become Supplier’s property and shall be returned to Supplier if requested.
13. Liabilities/insurance
Supplier shall not be liable for any damage to Purchaser's or third parties' properties and employees resulting from defects of the Product.
In no event shall Supplier be liable for any consequential loss or damages. Purchaser shall indemnify Supplier and hold him harmless for any claims over and above the aforesaid limitation of liability from third parties.
Purchaser shall secure adequate insurance coverage for any damage caused to Supplier's representatives while they are at Purchaser's site.
14. Patents
Purchaser shall indemnify Supplier against any damage which Supplier might suffer if, during the execution of the contract, Supplier infringes the industrial property rights of third parties, such infringement being the result of compliance with designs, specifications or other instructions supplied by Purchaser in connection with such contract.
15. Force majeure
If circumstances occur which could reasonably not have been foreseen at the time the contract was concluded and which are beyond Supplier's control and directly or indirectly prevent, hinder or lead to extra costs of the full or partial performance of the contract - such circumstances being inter alia, war, the threat of war, civil war, natural disasters, riots, strikes, lock-outs, fire, epidemics, government measures, embargoes, blockades, congestion - Supplier shall have the right to suspend the execution of the contract.
In the event of a force majeure situation the party claiming to be affected by force majeure shall immediately consult in writing and without delay, the other party in order to determine the consequences resulting from such situation. Each party shall bear its own costs resulting from a force majeure situation.
16. Termination
a. Termination for default In the event that Supplier breaches any of his obligations under the contract and fails to take action to remedy such breach within a two weeks period after receipt of written notice thereof from Purchaser, Purchaser shall be entitled to terminate forthwith the whole or part of the contract without prejudice to any rights or remedies otherwise available to Purchaser; in such event Purchaser shall be entitled to have the goods manufactured by third parties, using the Technical Information of Supplier.
In the event that Purchaser breaches any of the obligations of the contract, more specifically fails to fulfil his payment obligations in time, Supplier is entitled to terminate the whole or part of the contract forthwith without prejudice to any rights or remedies otherwise available to Supplier.
b. Termination in the event of prolonged force majeure.
In the event of a force majeure situation longer than 6 months both Purchaser and Supplier are entitled to terminate the contract forthwith; in such event each party shall bear its own costs without any right to compensation or claims against each other.
17. Applicable law
The contracts of which the present conditions of sale and delivery form part shall be subject to the law of The Netherlands.
18. Disputes
Any disputes shall be settled by the competent court in ‘s-Hertogenbosch, The Netherlands.
Eindhoven, The Netherlands, August 2019