In these Terms and Conditions of Purchase, the terms and expressions used below are defined as follows:
• Client: ELMA BV, user of these Terms and Conditions of Purchase;
• Contract: the written agreements between the Client and the Supplier concerning the Delivery, which are subject to these Terms and Conditions of Purchase;
• Delivery: the Goods and/or usage rights and/or property rights and/or Services and/or Work to be provided by the Supplier to the Client;
• Equipment: all vehicles, equipment, cranes, scaffolding and parts thereof, consumable items et cetera that the Supplier uses in the performance of the Contract, with the exception of the Materials to be used;
• Goods: the tangible objects the Supplier provides to the Client, as further specified in the Contract;
• Materials: tangible objects that are processed in the Goods to be created or are used in the performance of the Services and/or Work, with the exception of the Equipment to be used;
• Parties: the Client and the Supplier;
• Services: the service(s) the Supplier provides to the Client, as further specified in the Contract;
• Software: each form of computer software (including source code, object code, scripts et cetera) including software that is built into equipment (including operating software, firmware et cetera), all documentation produced by or on behalf of the Supplier for the Software and all new versions, updates, expansions, changes and improvements thereof or therein, as further specified in the Contract;
• Supplier: the other party, as further specified in the Contract;
• Terms and Conditions of Purchase: version 05-2022 of these terms and conditions of purchase;
• Work: the creation of a work of a tangible nature, as further specified in the Contract.
a. In the event of any contradictions, the Contract prevails over these Terms and Conditions of Purchase.
b. These Terms and Conditions of Purchase apply to all requests, offers and orders regarding the Delivery, in which respect the Supplier’s general terms and conditions are expressly rejected.
c. The Dutch text of these Terms and Conditions of Purchase is the only authentic text. In the event of a conflict between the Dutch text and a translation in a foreign language, the Dutch text will prevail.
d. The invalidity of a provision from these Terms and Conditions of Purchase does not have any consequences for the validity of the other provisions of these Terms and Conditions of Purchase.
a. The Client is at all times authorised to change the scope and/or the quality of the Delivery in consultation with the Supplier. Amendments are agreed in writing.
b. If Supplier is of the opinion that a change will impact the (fixed) price and/or delivery time agreed, it will be obliged to inform the Client of this in writing no later than 5 (five) working days after the requested change was communicated. If the Client is of the opinion that this impact on the price and/or delivery time is unreasonable, the Parties will enter into consultations about this.
a. The Supplier may only transfer an obligation under the Contract to a third party with the Client’s prior written consent. This consent may be subject to reasonable conditions.
b. In the event all or part of the obligations of the Contract have been transferred to a third party, the Supplier will be obliged to report to the Client which security has been provided for the payment of VAT, wage tax and social security contributions, which are prescribed by law for employers.
c. If a third party is engaged, the Supplier will remain fully responsible and liable for the Delivery by these third parties in connection with the Contract.
a. Prices are exclusive of VAT and comprise all costs in connection with the Supplier’s performance of its obligations.
b. Prices are fixed, unless the Contract specifies the circumstances which may lead to a price adjustment and the manner in which the adjustment is to be made.
c. Unless agreed otherwise, the Supplier will bear the costs of the quotations, samples, trial shipments and sample materials.
a. Payment of the invoice, including VAT, will take place within 60 (sixty) days after receipt of the invoice and approval of the Delivery by the Client. Invoices must be submitted to ELMA BV to the attention of the accounts payable department, sent digitally to email@example.com and state the relevant purchase order number(s) and a description of the Delivery.
b. The Client will be entitled to suspend payment if the Client identifies a shortcoming in the Delivery.
c. The Client has the right to reduce the amount of the invoice by amounts which the Supplier owes to the Client.
d. Payment by the Client in no way implies a waiver of rights.
e. If the Client does not comply with its payment obligations in time, it will only be obliged to compensate the statutory interest and will not owe this amount until after the Supplier has given it a reasonable period in writing to still comply with its obligations.
a. Delivery takes place at the agreed time and agreed place. Delivery of Goods takes place according to the applicable Incoterm DDP (Delivered Duty Paid).
b. The agreed time of Delivery is of essential importance. In the event of late Delivery, the Supplier will be in default without further notice of default being required.
c. The Supplier will notify the Client immediately if the delivery period is at risk of being exceeded. This will be without prejudice to any consequences of this failure to meet the delivery time under the Contract or statutory provisions.
d. The Client has the right to postpone the Delivery. In case of the Delivery of Goods, the Supplier will keep the Goods properly packed, separated and recognisable, and will preserve, secure and insure them.
a. In the event of an attributable failure by the Supplier, it will be in default without further notice of default being required.
b. In the event that the Supplier does not perform its obligations arising out of the Contract within the agreed time, the Clien t is entitled to have the Contract executed by a third party. The Supplier will reimburse the Client for all and any damage that exists as a result of this nonperformance.
c. Without prejudice to the right to compensation and the other statutory rights arising from an attributable failure to perform, the Client is entitled to collect an immediately due and payable penalty of 2% (two percent) of the total price of the Contract per day as of the day of the failure to perform, up to a maximum of 10% (ten percent) of the total price of the Contract.
d. The statutory interest on amounts paid in advance by the Client will be set off against invoices payable over the period of the default.
e. In case of a non-attributable failure, obligations of both Parties will be suspended in consultation.
f. The Parties can only invoke non-attributable failures vis-à-vis if the Party concerned notifies the other Party in writing of such an appeal as soon as possible, but no later than two (2) working days after the occurrence of the non-attributable failure, subject to submission of the necessary evidence.
g. If the Supplier argues that one or more of its failures cannot be attributed to it and the Client accepts this statement, the Client will nevertheless be entitled to terminate the Contract. In such a situation, the Parties will not charge any losses to each other.
h. A non-attributable failure on the part of the Supplier in any case not includes: strikes, external network problems, defects in the Software, traffic jams (not being a traffic breakdown) and liquidity or solvency problems.
a. The Supplier guarantees that the Delivery complies with what has been agreed.
b. The Supplier guarantees that the Delivery meets all relevant statutory provisions regarding quality, environment, safety and health, among other things.
c. The Supplier guarantees that the Goods are complete, ready for use, of good quality, new (unless agreed otherwise), free from defects and are suitable for the purpose for which they are intended and are otherwise made of sound material. The Supplier ensures that all parts, auxiliary materials, accessories, tools, spare parts, operating instructions and instruction manuals, among other things, necessary to achieve the purpose indicated by the Client in writing, are also delivered, even if they have not been specified.
d. The Supplier guarantees that the Goods provided are free from manufacturing-, construction-, design- and material defects for at least 2 (two) years after acceptance in accordance with clause 11 of these Terms and Conditions of Purchase.
e. The guarantee period as specified in paragraph d of this clause is extended with the time during which the Goods cannot be used, due to a defect or unsuitability attributable to the Supplier. If the Goods or parts thereof are repaired or replaced, the full guarantee period will again apply to these Goods or parts.
f. The Supplier guarantees that the Services and Work will be performed in a competent and professional manner.
g. The employees of the Supplier and the employees of third parties who are hired-in by the Supplier will meet the agreed qualification requirements in terms of training and expertise and have sufficient relevant experience.
h. If the Client discovers that the Delivery does not comply – either in full or in part – with what the Supplier has guaranteed in accordance with paragraphs a up to and including g of this clause, the Supplier will be in default, unless the latter is able to demonstrate that the failure to perform cannot be attributed to it.
a. The Supplier guarantees the free and undisturbed use of the Delivery by the Client. The Supplier will indemnify the Client against all the financial consequences of third-party claims due to infringement of their intellectual and industrial property rights.
b. In the event of a breach of the foregoing paragraph, the Client will impose an immediately due and payable and non-mitigating penalty on the Supplier of EUR 25.000,00 (twenty-five thousand euro) per event, without prejudice to the Client’s right to claim compensation for the actual damage. The Supplier must pay the amount of the penalty to the Client immediately after the aforementioned determination and notice thereof.
c. The Supplier ensures that its entire supplier’s file does not use any counterfeit parts. In the event the Supplier in any way establishes that a third party is guilty of this, the Supplier must notify the Client of this immediately.
d. The use and/or Delivery of refurbished parts by either the Supplier or third parties is not permitted, except if this has been coordinated with and approved by the Client in advance.
a. The Delivery of the Goods will not constitute acceptance by the Client.
b. The Client is entitled to inspect the Goods at any time during the production, processing and storage or to have such an i nspection performed. The Client is also entitled to inspect Materials and Equipment or to have such an inspection performed. At first request, the Supplier will grant the Client, authorities and/or inspecting agencies access to the place of production, processing, storage and/or the place where the Services and/or Work are performed.
c. Within 14 (fourteen) days after the Delivery, the Client will inspect the Goods in terms of the nature, condition, quality and quantity and above all to confirm if the Goods will conform to that which has been agreed between the Parties.
d. If the Goods are stored in stock or if the Goods are not used directly and an inspection is therefore not reasonably possible, the period stated in paragraph c of this clause will commence when the Client actually starts to use the Goods.
e. The Supplier will cooperate with an inspection as referred to in this clause free of charge.
f. If an inspection as referred to in this clause cannot be carried out at the intended time due to the Supplier’s fault or if an inspection has to be repeated, the Supplier will bear the resulting costs incurred by the Client.
g. The Client will inform the Supplier in writing within a reasonable period about whether it accepts the Goods. However, if the Client fails to inform the Supplier in writing within a reasonable period about whether it accepts the Goods, the Goods will be deemed to have been accepted after expiry of the reasonable period.
h. In the event the Goods are rejected, the Supplier will ensure that the Goods will be repaired or replaced within 5 (five) working days. If the Supplier fails to comply with this obligation within the period specified in this clause, the Client will be entitled to purchase the Goods from a third party or to take measures itself or to have measures taken by a third party at the Supplier’s expense and risk. In the event of an attributable failure, the provision of clause 8 of these Terms and Conditions of Purchase will apply.
i. If the Supplier fails to take back the rejected Goods delivered within five (5) working days, the Client will be entitled to return the Goods to the Supplier at the Supplier’s expense.
a. The Client will at all times be entitled to return the (transport) packaging materials to the Supplier at the Supplier’s expense.
b. The Supplier is responsible for the processing or destroying of (transport) packaging materials. If (transport) packaging materials are processed or destroyed at the request of the Supplier, this is done at the risk and expense of the Supplier.
c. The Supplier will collect any environmentally harmful (transport) packaging materials and/or hazardous waste from the place of Delivery free of charge and transfer them to a licensed processing facility in an appropriate and verifiable manner in accordance with applicable environmental legislation.
a. The Supplier is obliged to make the accompanying documentation available to the Client prior to or simultaneously with the Delivery.
Material certificates must be provided digitally to the following e-mail address: firstname.lastname@example.org.
b. The Client is free to use this documentation, including the reproduction thereof for its own use.
c. Documentation is retained in conformity with the applicable retention periods.
a. The title to the Goods transfers to the Client after Delivery to the Client.
b. In the event that the Client makes materials, such as raw materials, auxiliary materials, tools, drawings, specifications and software available to the Supplier for the performance of its obligations, these will remain the property of the Client. The Supplier will keep these materials separate from goods belonging to itself or third parties. The Supplier will mark them as the property of the Client.
c. When materials, such as raw materials, auxiliary materials and software of the Client are processed in Goods of the Supplier, this means that a new Good is created which is owned by the Client.
d. The risk of the Goods transfers to the Client when the Delivery and subsequently the approval of the Goods have taken place in accordance with clause 11 of these Terms and Conditions of Purchase.
a. Upon request and subject to reasonable delivery times and reasonable prices, the Supplier will provide to the Client all spare- and replacement parts the Client needs for the Goods.
b. The Supplier will keep a stock of compatible spare- and replacement parts during a period of 5 (five) years as of the acceptance date of the Goods in accordance with clause 11 of these Terms and Conditions of Purchase. This provision also applies to the Software mentioned in clause 16 of these Terms and Conditions of Purchase.
a. If the Delivery concerns Software, either in part or in full, the Supplier will grant the Client an irrevocable, non-exclusive and perpetual licence to use, execute, save and duplicate this Software without any limitations whatsoever. This licence also includes the Client’s right to grant internal and external sub-licences.
b. The Supplier guarantees that the Software does not contain any viruses. In that context, the Supplier has thoroughly inspected the Software and the entire functioning of it prior to the Delivery to the Client using, among other things, the latest antivirus programmes that were available at the moment of the inspection.
c. If a virus is discovered or suspected, the Supplier will notify the Client of this immediately and will immediately take all measures to prevent or solve any problems that are or may be caused as a result.
a. The Supplier will meet the following requirements regarding its employees who perform Services and/or Work under the Contract, in which respect employees are also understood to include third parties and their employees who are hired-in by the Supplier or engaged as subcontractors by the Supplier;
– The Supplier will confirm the identity of the employee according to the applicable, local statutory requirements and will keep a copy of the identity document submitted by the employee in its records;
– The Supplier will ensure that the employee has the required permits and meets the statutory requirements regarding the Services and/or Work for which the employee is deployed;
– The Supplier will verify the employee’s educational qualifications by requiring the employee to submit diplomas and letters of reference regarding the trainings and courses they completed and will keep copies of these documents in the personnel file;
– The Supplier will have the employee sign a non-disclosure statement and will keep a copy of it in the personnel file;
– The Supplier will obtain references from the employee’s previous employer(s) regarding their recent employment history (less than 5 (five) years ago) and their reliability, in order to assess the employee’s integrity and ethics, in so far as relevant for the particular position.
b. In respect of each and every breach of this clause by the Supplier, the Supplier will be obliged to pay an immediately due and payable and non-mitigating penalty to the Client of EUR 10.000,00 (ten thousand euro) per event, without prejudice to the Client’s right to claim compensation for the actual damage.
c. If the Client is of the opinion that the employees are insufficiently qualified, the Client will be authorised to order the removal of these employees from the assignment and the Supplier will be obliged to have them replaced immediately, subject to paragraph a of this clause.
d. The hired-in employees will adopt a professional attitude and will not make any negative statements about the Client to third parties. If the Supplier does not meet this obligation, it will be in default and the Client will be authorised to impose an immediately due and payable and non-mitigating penalty of EUR 500,00 (five hundred euro) per event, without prejudice to the Client’s right to claim compensation for the actual damage, which penalty will be paid by the Supplier immediately.
e. If the Supplier’s employees are not able to perform Services and/or Work because of leave, sickness or other absenteeism, the Client will not be liable for any compensation for those hours.
a. Before the performance of the Contract commences, the Supplier must familiarise itself with the circumstances on the site and the buildings of the Client and/or the Client’s client where the Services and/or Work must be performed.
b. Costs related to delays in the performance of the Contract which are the result of the circumstances referred to in the above paragraph, will be for risk and expense of the Supplier.
c. The Supplier ensures that its presence and the presence of its employees on the site and in the buildings of the Client and/or the Client’s client do not impede the undisturbed continuity of the work of the Client and any third parties.
d. Before the performance of the Contract commences, the Supplier must familiarise itself with the contents of the rules and regulations applicable on the site and in the buildings of the Client and/or the Client’s client, including those regarding safety, health and environment, and act accordingly. The Client will provide the Supplier with a copy of the aforementioned rules and regulations upon first request.
a. The Supplier is fully liable and responsible for the payment of all direct and indirect taxes, levies, social security con tributions, and all similar insurance contributions and other payments, including any surcharges or fines imposed by a government agency in the N etherlands or abroad and which are directly or indirectly connected to the performance of the Contract.
b. At the Client’s request, the Supplier will provide the Client with all information regarding the withholding and payment by the Supplier of all social security contributions and wage tax which the Supplier owes in respect of the performance of the Contract, both regarding the employees of the Supplier, the employees of any subcontractors and the employees of any representatives.
c. The Supplier indemnifies the Client against any liability in connection with this clause.
a. The Supplier is liable for any direct and indirect damage that may arise in connection with the performance of the obligations ensuing from the Contract.
b. The Supplier will indemnify the Client against all financial consequences of claims by third parties which are in any way related to the performance of its obligations ensuing from the Contract.
c. The Supplier will at all times maintain insurance policies that cover the relevant risks in connection with the Contract or the Supplier’s performance of the Contract and which are subject to conditions that are reasonably suitable and customary in the industry in question. Upon the Client’s first request, the Supplier will be obliged to allow inspection of the relevant policies.
a. The Parties and their employees undertake to observe confidentiality regarding all information of the other Party and not to disclose it to any third parties. Furthermore, the Parties and their employees undertake to observe confidentiality regarding the business operations and the company of the other Party and its client(s) during the term and after the termination of the Contract.
b. Without the Client’s prior written consent, the Supplier is not permitted to have business contacts and/or to conduct business with existing customers and/or relations of the Client, either directly or indirectly, either paid or unpaid, or financially in any form wh atsoever. This provision in any case includes the customer(s) and/or relation(s) for whose benefit the Client contracted out the Services and/or Work to the Supplier.
c. Any breach of this clause by the Supplier and/or its employees makes them liable to pay a penalty to the Client. The non-mitigating penalty that is then due and payable without any further notice of default amounts to EUR 20.000,00 (twenty thousand euro) per event, without prejudice to the Client’s right to claim compensation for the actual damage.
a. In so far as the Supplier processes personal data for the Client as processor within the meaning of the General Data Protection Regulation or in the context of the performance of the Contract, the Supplier guarantees that appropriate technical and organisational measures are applied so that the processing meets the requirements under the General Data Protection Regulation and the protection of the data subjects is guaranteed. The Supplier processes personal data exclusively on the orders of and based on written instructions of the Client, unless stipulated otherwise by law.
b. The Parties arrange for the processing of personal data by the Supplier for the benefit of the Client by contract.
a. The Client is entitled to rescind the Contract extrajudicially with immediate effect, either in whole or in part, by means of a simple written statement, without being obliged to pay any compensation to the Supplier, if:
– the Supplier is in default, or performance is permanently or temporarily impossible;
– the Supplier applies for or is granted suspension of payments, temporary or otherwise;
– the Supplier files for bankruptcy or is declared bankrupt;
– the Supplier’s company is liquidated;
– the Supplier discontinues its business;
– a significant portion of the Supplier’s assets are seized;
– the Supplier enters into a merger or demerger or is dissolved;
– the Supplier or one of its employees or representatives offer or provide any benefit to a person who is affiliated to the Client’s company or one of its subordinates or representatives;
– there is a situation involving a non-attributable failure to perform, as indicated in clause 8 of these Terms and Conditions of Purchase.
b. The Client is furthermore at all times entitled to terminate the Contract by registered letter. In that case, a settlement will take place between the Client and the Supplier based on the costs reasonably incurred by the Supplier with regard to the Delivery and any obligations that had already been reasonably undertaken for the future. The Client is not obliged to indemnify the Supplier for the consequences of the termination of the Contract in any way.
a. Disputes between the Parties, including those regarded as such by only one of the Parties, will be resolved as much as possible by means of proper consultation.
b. If the Parties fail to reach a solution, the disputes will be settled by the competent court in the district where the Client’s company has its registered office.
The Contract, which these Terms and Conditions of Purchase form part of, is exclusively subject to Dutch law. Foreign legislation and treaties, such as the United Nations Convention on Contracts for the International Sale of Goods, are excluded.
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