1. Definitions
Buyer: EuroSort B.V., EuroSort Systems B.V. and DistriSort Projects B.V. with its registered offices in the Netherlands users of these General Purchasing Terms and Conditions.
Day: every calendar day;
Delivery Date: the day on which the Supply is or will be delivered in full on the agreed delivery address and according to the agreed delivery terms;
Delivery Time: the number of Days between receipt of the PO and the Delivery Date;
Documentation: all documentation that forms part of the Supply, comprising yet not limited to CE documents and other documents relating to applicable European Directives, UL/CSA, mechanical drawings, schematics, certificates of quality, testing or warranty, manuals, instruction manuals and any other document required for the installation of, linking up with, integration of, incorporation of, use of, operation of, training of staff with regard to and/or the maintenance of the Supply and if applicable a priced spare part list;
Goods: items and property rights, software included, that have a value in the economic traffic;
GPT&C: these General Purchasing Terms and Conditions of Buyer;
Incidental Damages: incidental expenses reasonably incurred by Buyer in inspection, receipt, transportation, care and custody of Goods rightfully rejected as well as cover and replacement, and expenses in order to avoid any direct and consequential losses of Supplier’s breach;
NAI: Netherlands Arbitration Institute;
Offer: the quotation submitted by the supplier on request of Buyer;
Parties: Buyer and Supplier;
Party: Buyer or Supplier;
Purchase Order: the document embodying the purchase, like but not limited to the Buyer order form, hereinafter referred to as ‘PO’;
Procurement Staff: employees in Buyer’s Procurement department , who have been formally authorized to represent Buyer in procurement transactions up to a certain amount;
Services: the provision of services to be provided to Buyer, including the availability of manpower, advice, contracting work, including the completion thereof;
Supplier: the (potential) party from whom Buyer is purchasing Goods and/or Services;
Supply: Goods and/or Services to be supplied or the work to be performed, including any necessary Documentation and outgoing goods inspection report of the Goods to be delivered;
WKA: the Wages and Salaries Tax and Social Security Contributions (Liability of Subcontractors) Act (Wet Ketenaansprakelijkheid) as contained in the Social Insurance (Funding) Act (Wet financiering sociale verzekeringen) and the Collection of State Taxes Act (Invorderingswet) 1990, as well as any related decrees and directives, including, but not limited to, Compulsory Identification Act, Foreign Nationals Employment Act, Act on Tackling Embezzlement (Wet Aanpak Schijnconstructies) and/or obligations arising from related laws and regulations;
Working Day: every Day from Monday to Friday, with the exception of national holidays of the country where the Buyer and Supplier is residing;
2. General
2.1 These GPT&C apply to all legal relationships of Buyer, including requests for quotations, whereby Buyer acts as a (potential) buyer of Supplies or as a (potential) party ordering work.
2.2 Deviations from and/or additions to these GPT&C apply only if they have been agreed by Buyer’s representatives registered with the Chamber of Commerce or Buyer’s Procurement Staff and the Supplier, in writing.
2.3 General Terms & Conditions of the Supplier, of whatever title, do not apply, unless agreed otherwise by the Parties in writing. In the event of a conflict between (provisions in) these GPT&C and the Supplier’s General Terms & Conditions, these GPT&C prevail.
2.4 For the purposes of these GPT&C, ‘in writing’ is also defined as: by facsimile message, e-mail or EDI.
3. Order & order confirmation
3.1 All Offers of the Supplier are in its entirety and unconditionally irrevocable and valid for at least ninety (90) Days, unless agreed otherwise.
3.2 Buyer is entitled to terminate any negotiations at any time without giving reasons and without any obligation of compensation of any kind whatsoever.
3.3 Besides the representatives registered with the Chamber of Commerce, only the Procurement Staff is authorized, within limits, to represent Buyer in requesting quotations, placing and/or modifying POs or accepting Offers. Procurement Staff members will show their authorization on request of Supplier.
3.4 A PO or a change hereto shall take effect between Buyer and the Supplier only in the event that the Supplier has signed the PO and returned it to Buyer, when Buyer has accepted an Offer of the Supplier in writing, or when the Supplier has commenced the performance of the Supply in accordance with the Buyer order form, taking into account the provisions of article 3.3.
3.5 Supplier will confirm a PO within two (2) Working Days after receipt of the PO to orderconfirmation@eurosort.com
3.6 Buyer is entitled to revoke any of the POs before it has been effected according to the conditions stated in article 3.4.
3.7 If other provisions have been agreed upon in the PO between Buyer and the Supplier than those in the present GPT&C, the specific provisions in the PO shall prevail.
3.8 If in the PO or the appendices hereto Buyer refers to technical regulations, safety regulations, quality requirements or other regulations or requirements which are not appended to the PO, the Supplier shall be deemed to be acquainted with their contents, unless it notifies Buyer in writing to the contrary without delay. Buyer shall in that case provide the Supplier with further details of the said regulations or requirements.
3.9 Variations to the Supply (more or less work) will be accepted by Buyer only when agreed in writing by a Procurement Staff member.
3.10 On request of Buyer, Supplier shall act as a second tier supplier to any Buyer first tier supplier identified by Buyer. The first tier supplier and Supplier will perform any purchase of Supply required for a delivery to Buyer, according to the same conditions as agreed between Buyer and Supplier.
4. Terms of delivery
4.1 Any agreed trade term shall be interpreted in accordance with the latest version of the Incoterms, issued by the International Chamber of Commerce in Paris. If no trade term and/or delivery address is agreed, the delivery shall be Delivered Duty Paid (DDP) unloaded at the designated location, and/or the destination is Buyer’s site in ‘s-Graveland, The Netherlands.
4.2 The Supply can be delivered at Buyer’s site in ‘s-Graveland, during the opening hours on Working Days from 08.00 – 15.30 hrs., unless agreed otherwise as stated in the applicable PO.
4.3 If it is agreed that the Supply has to be delivered somewhere else then Buyer’s site in s’-Graveland, the packing list has to be send to goods@eurosort.com right upon delivery. If The Supply consists of different Goods, then the Supplier is obliged to identify each product separately with the Buyers PO number, article number and the quantities.
4.4 Agreed Delivery Dates are regarded as fixed and fatal. By the mere act of exceeding the Delivery Date, the Supplier shall be in default without further written notice.
4.5 If the delivery includes spare parts, the Supplier shall submit the price spare part list within 4 weeks after the PO has been submitted by the Buyer to the Supplier.
4.6 If timely performance of the PO by the Supplier is not possible or is in imminent danger of being delayed, the Supplier shall inform Buyer Procurement Staff thereof without delay.
4.7 Partial deliveries may be made by the Supplier only with the prior consent of Buyer Procurement Staff and only when this does not result in increased costs for Buyer. Buyer may refuse to accept partial deliveries for which no prior consent has been given and return them for the account and risk of the Supplier. Delivery earlier than agreed shall always be subject to the prior written consent of Buyer Procurement Staff and shall not result in any change in the originally agreed terms of payment or warranty period.
4.8 In the event of Buyer not being prepared to accept the Supply at the agreed Delivery Date due to default of its customers, a delay in delivery to its customers, or non-fulfillment or cancellation of the orders by customers, then the Supplier shall, at Buyer’s Procurement Staff timely request, postpone the Supply without additional costs for Buyer, for a reasonable period of time determined by Buyer.
4.9 Rejection of the Supply in no way implies postponement of the agreed Delivery Date, unless Buyer’s Procurement Staff has agreed to a postponement in writing.
5. Packaging & transport
5.1 Packaging shall be suitable to assure the quality of the Supply considering the mode of transport and storage conditions at Buyer.
5.2 The maximum measurements of the packaging (including Euro pallet) is 120 cm x 80 cm x 80 cm (LxWxH), with a maximum weight of 550 kg, maximum weight of an individual colli is 20 kg., unless agreed otherwise.
5.3 The Supply shall always be accompanied by an itemized packing list, which is clearly readable, with Buyer item numbers and descriptions, delivered quantities, dimensions and gross/net weight of the Supply and references to the PO and PO lines, article numbers of the Buyer and Project number (if applicable) , securely attached to the outside of each shipping container, in a waterproof packet and an envelope that is clearly marked “Packing List Enclosed”. A digital version of the itemized packing list will be submitted to goods@eurosort.com. The packing list will be identified by the Supplier with an unique packaging list number.
5.4 Packaging shall comply with ISPM 15 (International Sanitary Phytosanitary Measure) norms and standards, or comparable standards that may replace this standard in the future, unless agreed otherwise.
5.5 The Supplier undertakes to take back, at Buyer’s request and for the account and risk of the Supplier, the packaging materials used by the Supplier. Buyer is also entitled to return such packaging materials to the Supplier for the account of the Supplier.
5.6 Loan packaging provided by Buyer shall be looked after with due diligence and, if requested, returned to Buyer at no charge.
6. Transfer of title & risk
6.1 Transfer of title to the Supply to Buyer becomes effective as soon as the risk is transferred to Buyer in accordance with the agreed trade term, in the absence of which the title is transferred on delivery to Buyer at the agreed destination address. In the event of Buyer making payment(s) prior to delivery, the title to the Supply is transferred to Buyer at the time of payment, in proportion to the amount paid.
6.2 If Buyer provides the Supplier with goods for the performance of the PO, including raw materials, semi-finished products, materials and parts, models, tools, molds, specifications, drawings, data, software and information carriers, these goods shall remain the property of Buyer. The Supplier shall keep these goods, in its capacity of holder, clearly marked as being the property of Buyer, in safe custody and in good condition, such for the account of the Supplier, and shall bear all risk of loss or destruction of these goods. The Supplier is obliged to carry insurance for these goods, for its own account, during the time that it has these goods in its possession. The Supplier shall ensure that these goods are used exclusively for the performance of the PO. The Supplier shall return these goods to Buyer forthwith and/or irreversibly delete any copies thereof, for its own account, after the PO has been executed, expired or terminated, unless agreed otherwise.
6.3 If the Supplier purchases or creates special tooling or molds on the request of and for the account of Buyer these shall become the property of Buyer as of the moment of their purchase/creation. Supplier’s obligations described in article 6.2 also apply for such goods.
7. Prices & payment
7.1 Prices and rates are in Euros and are firm, unless agreed otherwise. The prices comprise all costs with regard to fulfilment of the purchase according to the agreed conditions, including yet not limited to costs for packaging, loading/unloading, transport, Documentation (including necessary information to judge the quality of the Goods), insurance, material surcharges, any costs for exchanging or converting currency and any costs related to the payment other than a standard local money transfer, unless agreed otherwise in writing. All prices are exclusive of turnover tax (Value-Added Tax), but include any other taxes and levies, including yet not limited to environmental surcharges. Additional costs which have not been explicitly accepted in writing by Buyer prior to delivery are not eligible for payment.
7.2 In the event that the production location of the Supply is going to change, Suppliers is obliged to inform Buyer within a timely fashion so a qualification of the new production location can be initiated, if required. Any negative consequences ,like but not limited to the price, delivery times, related to changing the production location will not be accepted by the Buyer.
7.3 The Supplier shall send to Buyer itemized invoices with Buyer item number(s) and description(s), invoiced quantities and with reference to the PO number and PO lines and Project number (if applicable). The invoice must meet all statutory requirements, including yet not limited to stating the price exclusive and inclusive of VAT, the VAT amount, the Supplier’s VAT number, Chamber of Commerce file reference number and IBAN / BIC. It is mandatory that the Supplier will submit the invoice to the correct business entity of the Buyer, as indicated in the left upper corner of the PO.
7.4 Invoices without reference to the corresponding Purchase Order line or not complying to the agreed conditions, will not be processed for payment.
7.5 The Supplier must send invoices as single document in PDF format to administration@eurosort.com to the attention of Buyer’s accounts payable department, not before delivery or acceptance but within thirty (30) days, with the exception of any agreed prepayments.
7.6 The payment term is sixty (60) days after receipt of the correct invoice by Buyer.
7.7 Invoices will be put for payment on the first following Wednesday after expiration of the payment term.
7.8 Payment by Buyer does not in any way constitute a waiver of rights.
7.9 If Buyer does not make the contractual payments on time, written notice of default must be sent to Buyer. In the event of Buyer being liable to pay interest due to untimely performance of its payment obligations after the notice of default, this shall be equal to the refinancing interest rate of the European Central Bank (ECB).
7.10 When deemed necessary and thus requested by Buyer and before Buyer proceeds to pay, Supplier furnishes an unconditional and irrevocable bank guarantee from a bank accepted by Buyer, for the account of the Supplier, OR, in case of any agreed prepayment, Supplier provides a duly signed property declaration stating that ownership of the Supply is transferred directly to Buyer in accordance with article 6.1 and Supplier shall label the Goods as the identifiable property of Buyer.
7.11 Invoices submitted in another way then instructed, cannot be processed by Buyer for payment. In this case Buyer cannot be held responsible for any delay in payment.
8. Warranty
8.1 In case of unclear, incomplete or equivocal requirements, Supplier is responsible for ascertaining exactly what is required for the Supply, failing which he shall be deemed to be acquainted with (a) the purpose for which the Supply is intended, and (b) the circumstances in which the Supply is to be used. Buyer will fully cooperate in ascertaining such information.
8.2 The Supplier warrants that:
(a) the Supply is complete and suitable for the intended purpose as indicated by Buyer;
(b) the Supply is fully in accordance with the written requirements as set forth in the PO and in specifications, drawings, calculations and/or other documents provided by Buyer;
(c) the Supply is of a good quality and free from defects in the design, workmanship and materials, and that new materials and skilled personnel are used for the performance of activities forming part of the Supply;
(d) the Supply at least complies with the relevant legal and regulatory requirements of the European Union;
(e) it shall deliver the agreed result, regardless of whether the Supply concerns the supply of goods or the provision of services;
(f) the Supply comprises all relevant and required certificates, statements, declarations, installation instructions, operating instructions, specifications, drawings, reports, tax related information, CE marking and corresponding documents and other relevant documents;
(g) the Supply does not infringe any rights of third parties, including intellectual and industrial property rights and know-how.
(h) the Supply is designed, constructed, build and tested according to the latest version of European Harmonized Standards. This should be demonstrable.
(i) the Supply fulfills all product requirements as defined by the applicable actual European Directives and Regulations (e.g. the Machinery Directive), if applicable. This will be proven by the Supplier to the Buyer. A formal Declaration of Conformity for the scope of deliverance will be provided before the Supply will be delivered to the Buyer.
8.3 End of support: The Supplier warrants that any support required to keep the Supply in good condition, including all spare parts of the Supply, can be acquired from the Supplier by Buyer for a period of ten (10) years after delivery of the Supply, at the ruling market prices.
8.4 End of sales: Supplier will inform Buyer at least one (1) year upfront about any date after which the Goods will not be sold any more by Supplier (end of sales date), of any Goods acquired from the Supplier by Buyer between this end of sales date and ten (10) years before.
8.5 Supplier is obliged to provide a successive Supply which is compatible regarding fit, form and function in all its applications in Buyer equipment and systems, to be acknowledged by Buyer, at least six (6) months before any end of sales date, for Goods which Buyer acquired from the Supplier between this end of sales date and ten (10) years before. This article does not apply to acquired spare parts acquired in compliance with article 8.3, leaving the provisions of article 8.3 unimpaired. Total cost and Delivery Time of the alternative Supply may not exceed the price or Delivery Time of the original Supply. Any costs occurred by Buyer to implement the alternative Supply are for the account of Supplier.
8.6 If the PO covers the performance of work for Buyer upon property owned or controlled by Buyer, Supplier guarantees not to, and waives any right to, file any lien against such property.
8.7 Supplier reserves the right to make changes to the design of the Goods if such changes improve the performance or otherwise benefit the Goods. Supplier has the obligation to inform the Buyer well in advance of any (desired) changes to the design of the by Buyer purchased Goods, so that the Buyer can examine whether such change will have any adverse effects. Supplier shall, in all fairness and reasonableness, reimburse the costs incurred by the Buyer as a result of the design change.
9. Warranty period & repair of defects
9.1 The warranty period expires twenty-four (24) months after delivery or, in the event that Buyer and the Supplier have agreed on an acceptance test, after acceptance by Buyer.
9.2 In the event of repair or replacement during the warranty period, a new warranty period according to article 9.1 starts for the repaired or replaced Goods and for all other Goods which were unusable as a result of the defect, and this new warranty period shall become effective from the time of commissioning or putting into service after repair or replacement.
9.3 Defects which are discovered within the warranty period are considered attributable to Supplier, unless Supplier proves otherwise with a 8D report, and shall be finally remedied by the Supplier, in accordance with the provisions of this article 9.
9.4 The failure of wear & tear parts is not regarded as a defect or non-conformity. Wear & tear parts are the parts explicitly identified by Supplier as wear & tear part and accepted as such by Buyer in writing.
9.5 Buyer will notify the Supplier of any defect or non-conformity in writing as soon as possible but not later than one (1) month after the discovery of the alleged defect or non-conformity.
9.6 The Supplier is obliged to remedy any defects or non-conformities at the earliest opportunity and at all events within a reasonable term set by Buyer, by means of repair or replacement, at Buyer’s discretion, at the location designated by Buyer.
9.7 The Supplier shall bear all the costs incurred to remedy the defects under warranty or on account of non-conformity, including, but not limited to, costs of materials, transport costs, accommodation and travelling expenses, installation and dismantling costs, and all other labor charges.
9.8 If the Supplier fails properly to fulfill the obligation as stipulated in article 9.6 and/or fails to complete it within the set term, as well as in urgent cases, Buyer has the right to carry out the necessary repairs or replacements, or have them carried out by third parties, for the risk of the Supplier, and Buyer shall notify the Supplier thereof as soon as possible. In such a case all the provisions of this article 9 shall remain in force and costs are for the account of the attributable Party.
9.9 The ownership and risk of any replaced Goods lies with the Supplier from the time of replacement. The Supplier shall collect these Goods, or have them collected, without delay, unless Buyer makes a request to keep these Goods for investigation. Risk and title of the Goods taking the place of the Goods shall pass in accordance with the provisions of these GPT&C.
GENERAL PURCHASING TERMS AND CONDITIONS of Buyer , established in s’-Graveland, The Netherlands, version 1.3 June 2024, page 2 of 2
9.10 In case of repairs or replacements which requires common machine knowledge only, Supplier can request Buyer to carry out any repairs or replacements required to comply with article 9.3, or have them carried out by third parties, for the risk of the Supplier. Any such request implies the authorization of Buyer staff by Supplier and all the provisions of this article 9 shall remain in force. Costs are for the account of the attributable Party..
10. Liability
10.1 The Supplier agrees to indemnify and hold harmless Buyer from and against all losses, claims, actions, damages (like but not limited to property, consequential and/or Incidental Damages) or liabilities or expenses (including court fees, attorney fees and or other expenses incurred) arising out of or related to any attributable defect or non-conformity of the Supply or any violation by Supplier of any of its obligations described in the PO, these GPT&C or the law. This also includes any loss arising as a result of the presence, use, delivery or removal of the property of the Supplier, its staff or other persons engaged by the Supplier in the execution of the PO. Economic losses or damages (like but not limited to loss of incomes or profits, or any diminution of value), not caused by willful misconduct or gross negligence of the Supplier, are excluded. Incidental Damages are not excluded.
10.2 If a defect or non-conformity of the Supply was not caused by willful misconduct or gross negligence of the Supplier nor applies to physical injury and/or death, the total liability for losses, claims, actions, damages, liabilities and expenses, is limited to the purchase price of the Supply plus €2.000.000,- per event.
10.3 If Supplier delivers defective or non-conforming Supply or does not fulfill any of its obligations arising out of the PO or these GPT&C or the law, Supplier shall at Buyer’s request, at all times be obligated to deliver conforming Supply and immediately remedy said violation of its obligations.
10.4 The Supplier is aware that Buyer distributes the Supply to its customers all over the world. This does not invalidate a claim by Buyer under warranty or on account of non-conformity, and the Supplier shall in that case remedy the defects in accordance with the provisions of article 9.
10.5 The provisions of this article 10 do not exempt the Supplier from its liability under the law and do leave unimpaired Buyer its rights under the PO, these GPT&C and any other existing rights of Buyer.
10.6 The Supplier shall carry adequate insurance (including cargo and product liability) for any liabilities arising both from its legal relationship with Buyer and under the law. On first request, Buyer shall be allowed to inspect the insurance policies taken out for this purpose and proof of payment of the premiums.
10.7 Should Buyer be liable to Supplier, this liability shall be limited to the amount as set forward in article 10.2
11. Testing/inspection
11.1 The Supplier will perform an outgoing goods inspection of the Supply within a timely manner before delivery will take place.
11.2 Buyer is not bound to examine the supplied/installed Supply at the time of delivery and not examining the Supply upon delivery shall not deprive (by way of expiration, extinguishment or otherwise) Buyer of any rights whatsoever.
11.3 Testing/inspection of the Supply may be carried out by or on behalf of Buyer at any time, at Buyer’s request, either at the (sub)Supplier’s premises prior to delivery, or at Buyer’s premises after delivery or at the premises of Buyer’s customer after delivery. Buyer shall announce testing/inspection in advance to the Supplier. The Supplier shall have the Supply ready for testing/inspection at the moment requested by Buyer.
11.4 During testing/inspection it shall be determined, to the extent possible, if the Supply fulfils all agreed upon properties. Buyer shall discuss the testing/inspection protocol, that shall finally be determined by Buyer, in advance with the Supplier. The Supplier shall cooperate in the testing/inspection, without further costs for Buyer, and at Buyer’s request provide at no extra costs reasonable manpower capacity and material assistance to Buyer for the testing/inspection process. All the costs of or related to the testing/inspection, with the exception of Buyer personnel costs or the costs of other persons appointed by Buyer as representatives, are for the account of the Supplier. If the testing/inspection is delayed outside Buyer’s control, or in the event of Buyer rejecting the Supply during the testing/inspection process, then all additional costs and all the costs of subsequent tests/inspections (inclusive of the costs of Buyer personnel and Buyer representatives) shall be for the account of the Supplier.
11.5 If a test/inspection has failed to meet the agreed requirements on two (2) occasions, Buyer shall be entitled to terminate the PO with the Supplier, without any obligation to pay costs or compensation of any kind whatsoever.
11.6 The testing/inspection of the Supply by or on behalf of Buyer and/or any testing/inspection report sent by Buyer to the Supplier does not infer or imply that the Supply complies with the warranties given in article 8.
12. Industrial/intellectual property rights & confidentiality
12.1 All (intellectual/industrial) property rights to the drawings, specifications, manuals, Documentation, samples, software, etc. provided by Buyer to the Supplier, or created by the Supplier specifically for Buyer as a part of the Supply, reside with or accrue fully, unrestricted, worldwide, and royalty-free to Buyer. Buyer is not obliged to pay any separate consideration for these rights and may dispose of them at its will. The Supplier shall cooperate in the realization of any and all necessary deeds of transfer (amongst other things, with regard to intellectual/industrial property rights) and herewith, additionally, gives Buyer an irrevocable power of attorney to draw up and sign such deeds on behalf of the Supplier.
12.2 Supplier shall pro-actively, without any request from Buyer being necessary, hand over or digitally transfer all relevant design drawings and (as-built) production drawings pertaining to the Supply as part of the delivery obligation stemming from the PO, as soon as such design drawings or (as-built) production drawings are available.
12.3 If the Supply consists of custom-made software, custom-made modifications of standard software or comprises availability of software and (digital) design drawings or (as-built) production drawings, the Supplier shall, on first request of Buyer, provide Buyer at no charge with the object code, digital or hard copy versions of the design and (as-built) production drawings, the source code and all documentation associated therewith. Supplier may choose to deposit the software source code or deposit it with an independent appropriate third party (such as a civil law notary) under conditions yet to be agreed on, enabling Buyer to gain access to this source code in the event of the Supplier’s insolvency, in the event of the Supplier’s bankruptcy or in the event that the Supplier is no longer able or willing to maintain software or make the software available. All this shall be provided in such a fashion that Buyer can make effective and immediate use thereof without any further work or cost on the part of Buyer.
12.4 Supplier guarantees Buyer free and undisturbed use of the Supply, as well as of the inventions applied and/or developed by the Supplier within the framework of the execution of the PO. Provided that existing proprietary rights or other rights of the Supplier are existent, which could represent an obstacle for Buyer or its customers to use the Supply, Supplier shall grant Buyer an indefinite, unrestricted, royalty-free right that can be extended to all of his customers and suppliers or Supplier shall ensure that it is granted by third parties.
12.5 The Supplier guarantees that the Supply does not infringe with any third- party intellectual property rights and shall indemnify Buyer from all third-party claims which may be raised against Buyer. The Supplier shall compensate Buyer for any loss, damages and other expenses arising out of or in connection with the infringement of any intellectual property rights.
12.6 The Supplier has an obligation of secrecy vis-à-vis third parties with regard to (a) all data/information/items/rights referred to in article 12.1 and 12.3, and (b) all other data/information/items/rights concerning Buyer, its customers, its business associates or the Supply, provided by Buyer or which become known to the Supplier in any other way, and to use such confided facts only in the performance of the PO, and the Supplier shall make no copies thereof without the written consent of Buyer. The Supplier shall also impose this obligation on all its subordinates and non-subordinates who become acquainted with the said confided facts and is responsible for ensuring that these obligations are duly observed. On the request of Buyer the Supplier shall return to Buyer forthwith, for its own account, everything it has received from Buyer.
12.7 All orders placed by Buyer are confidential and shall not be made public by the Supplier for publicity or sales promotion purposes, unless otherwise agreed in writing.
13. Suspension & termination
13.1 In the event of the Supplier’s failure to fulfill its obligations under the PO, and in the event of bankruptcy or temporary suspension of payments, or liquidation of the Supplier’s business, or the stoppage or hindrance of work caused by industrial dispute, Buyer shall have the right to suspend its obligations and/or terminate the PO either in whole or in part, without any further notice of default, without any obligation for compensation of any kind whatsoever and without prejudice to all other rights and remedies of Buyer.
13.2 Without prejudice to any other provisions, Buyer is entitled to terminate the PO, either in whole or in part, at any time. In such case, Buyer shall reimburse the Supplier only for the costs incurred prior to the termination of the PO, supplemented with a reasonable amount determined by Buyer with regard to overhead and profit.
13.3 After termination of the PO, the Supplier is obliged to immediately return all data, information and documents of Buyer and the Supplier is obliged to immediately destroy and/or irreversibly delete any copies thereof and immediately confirm to Buyer in writing that Supplier has returned all data, information and documents of Buyer and that Supplier has destroyed and/or irreversibly deleted any copies thereof and therefore does not possess any such copies longer
13.4 In case of termination of the PO the Supplier shall immediately return to Buyer all amounts it has received from Buyer for this PO.
13.5 If Buyer is of the opinion that there is sufficient and strong justification for believing that the Supplier will not fulfill its obligations towards Buyer properly and in a timely manner, the Supplier shall in that case be obliged, on the first request of Buyer, forthwith to give sufficient guarantee, in the form required by Buyer, for the performance and fulfillment of all its obligations.
13.6 All rights and claims that Buyer might have or acquire against the Supplier shall immediately become due and payable in full in the events mentioned in article 13.1.
14. Force majeure
14.1 Force majeure means an event
(a) which is beyond a Party’s control, and
(b) which such Party could not reasonably have provided against before entering into the PO, and
(c) which having arisen, such Party could not reasonably have avoided or overcome, and
(d) which is not substantially attributable to the other Party;
14.2 Force majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as the conditions of article 14.1 are satisfied:
(a) war, hostilities (whether war be declared or not), invasion, act of foreign enemies;
(b) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war;
(c) riot, commotion, disorder, strike or lockout by persons other than the Supplier’s personnel and other employees of the Supplier and Sub-Suppliers;
(d) munitions of war, explosive materials, ionizing radiation or contamination by radioactivity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radioactivity;
(e) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity.
14.3 The following events are examples of events that are not considered as force majeure: industrial dispute, labor lockout, labor shortage, sickness, shortage of raw materials, transport problems, non-performance of obligations by sub-Suppliers, and breakdowns in the Supplier’s production.
14.4 Neither the Supplier nor Buyer shall be considered in breach or under any liability whatsoever for non-performance, part performance, defective performance or delay in performance of any obligation to the extent that such a performance is prevented by any cause of force majeure.
14.5 If a circumstance of force majeure should arise, the Parties shall endeavour to comply with their obligations under the PO as much as possible, exchanging all the relevant information necessary. Upon the occurrence of an event of Force majeure, the obligation(s) of the Parties that cannot be fulfilled as a result of such an event shall be automatically postponed for a maximum period of four (4) weeks after the force majeure occurs and this postponement shall not require penalties to both Parties. The payments of amounts already due shall not be suspended on verifying of events of Force majeure. The Parties engage themselves to take all the measures to assure as far as possible the normal resumption of their obligations, postponed on arising of Force majeure events.
14.6 If the Supplier is unable to honor its obligations under the PO after the end of the said four (4) weeks, Buyer shall be entitled to terminate the PO, without any obligation of compensation of any kind whatsoever or payment of costs.
14.7 If the PO is terminated for force majeure according to article 14.6 ., Supplier shall, on the request of Buyer, return to Buyer the payments it received from Buyer and Buyer shall, to the extend reasonably possible, return the corresponding Goods it has received.
15. Other provisions
15.1 Should individual provisions of these GPT&C be invalid, void, or unenforceable in whole or in part, this shall not affect the remaining provisions that shall remain in force. In such cases, the Parties to the PO undertake to agree to replace the said provisions with provisions that achieve the aim and meaning intended by the invalid, void, or unenforceable provisions as far as possible.
15.2 If the Parties do not enter into an agreement and after termination, dissolution or nullification of the PO for whatever reason, these GPT&C continue to apply insofar as they have independent significance and/or insofar as required for the regulation of the consequences of the termination, dissolution or nullification, including but not limited to the articles 8, 10, 12 and 17.
16. Data protection and privacy
16.1 In case a Party processes any personal data of the other Party and/or of third parties in connection with the Supply or an agreement between Parties, it will process such data in compliance with the applicable Data Protection Laws. Parties will enter into a Data Processing Agreement as provided by the Buyer, if needed according to article 28 of the General Data Protection Regulation (“GDPR”).
16.2 Without prejudice to the foregoing, a Party will ensure it has the appropriate legal basis and notices in place to ensure lawful processing of the personal data for the duration and purpose the Supply or the agreement between Parties. Each Party shall take appropriate technical and organizational measures against accidental loss or destruction of , such data and any unauthorized or unlawful processing of such data.
16.3 “Data Protection Laws” means all privacy laws, including the GDPR and national implementing laws, regulations an secondary legislation, that apply to Supplier’s performance under the Supply and or the agreement between the Parties. “Data Processing Agreement” means the agreement that is binding on the processor with regards to the controller and that sets out the subject-matter and duration of the personal data processing activities, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. “Processing” has the meaning attributed to it in article 4.2 of the GDPR (and ”Processed” and “Process” shall be construed accordingly).
17. Applicable law & jurisdiction
17.1 All legal relationships between Buyer and the Supplier shall be governed and shall be interpreted solely in accordance with the laws of The Netherlands, all with the exclusion of The United Nations Convention on the International Sale of Goods of 1980 (CISG).
17.2 If a dispute arises out of or in connection with the present GPT&C, the PO or any legal relationship arising there from concerning the PO or any ensuing agreements, including any disputes regarding the existence, validity or termination the Parties shall endeavour to settle the dispute reasonably and in good faith.
17.3 In the event of any unsettled dispute, controversy or claim arising out of or in connection with the present GPT&C, the PO or any legal relationship arising there from concerning the PO or any ensuing agreements, including any disputes regarding the existence, validity or termination, the Parties shall – or a Party shall – file a request for mediation with the NAI Secretary in accordance with the NAI Mediation Rules. If such request fails to result in a comprehensive resolution of the dispute by conclusion of a contract of settlement as referred to in article 7 (1)(a) of the NAI Mediation Rules, by an arbitral award on agreed terms as referred in article 8 of said Rules, or by a combination of both, the dispute – or any part thereof not resolved in any of the aforesaid manners – shall be resolved – at the choice of Buyer – either via arbitration in accordance with the NAI Arbitration Rules or by the applicable Court in the Netherlands. The language of arbitration shall be Dutch. The place of arbitration shall be The Hague, the Netherlands.
17.4 A dispute between the Parties shall never constitute a reason for the Parties to suspend their obligations under the PO.
18. WKA
18.1 If the WKA applies to the legal relationship between the Supplier and the natural persons or legal entities engaged by him in connection with the PO, the Supplier shall comply with all obligations arising from the WKA. The Supplier shall keep records such that the actual wage costs can be established for each project. These wage costs shall be specified on the invoice. Buyer shall be authorized to pay a portion of the price in cases it shall determine, either via a frozen account, or direct into a special account of the Tax Authority. This portion shall relate to the sum for which Buyer in its estimation is jointly and severally liable under the WKA or other regulations.
18.2 The Supplier shall on request provide Buyer, within thirty (30) days, with an original Declaration of Payment Conduct from the Tax Authority (concerning the payment of social security premiums and wage tax for all personnel engaged in connection with the PO), which may not be older than three months. The Supplier shall also, after a request to this effect by Buyer, provide Buyer, within sixty (60) days of the end of each quarter, with a declaration, drawn up and signed by a chartered accountant, in which the latter states that during the previous period obligations arising from or by virtue of the tax and social security legislation have been complied with. The costs of these declarations shall be borne by the Supplier.
18.3 The Supplier shall indemnify Buyer against any and all claim by the Tax Authority (concerning premiums and tax owed for the persons in question).
19. Assignment & pledging
19.1 Supplier is not entitled to assign the performance of the PO or any part thereof to third parties, or to cede or pledge to third parties any rights or claims that the Supplier may have against Buyer under the PO, without the written consent of Buyer.
GENERAL PURCHASING TERMS AND CONDITIONS of Buyer , established in s’-Graveland, The Netherlands, version 1.3 June 2024