GENERAL TERMS AND CONDITIONS
- of the limited company DHATEC B.V., with registered address in Bergeijk, Elskensakker 8, the Netherlands -
Article 1 - Definitions
1. In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
Seller : DHATEC B.V., hereinafter to be referred to as DHATEC
Buyer : DHATEC's opposite party
Agreement : the agreement between DHATEC and Buyer
Seller and Buyer are hereinafter sometimes referred to individually as a Party or collectively as the Parties.
Article 2 - General
1. The stipulations of the present terms and conditions shall apply to each and every offer and agreement between DHATEC and a Buyer, insofar as the Parties have not explicitly deviated from the present terms and conditions in writing.
2. The present terms and conditions shall also apply to all agreements with DHATEC, where the execution calls for the services of third parties.
3. The Buyer's general terms and conditions shall only apply if the Parties have explicitly agreed in writing that said general terms and conditions shall apply to the present agreement, to the exclusion of the present general terms and conditions.
4. If any provision (or part of a provision) in the present general terms and conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the maximum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision (or part of a provision) shall be deemed deleted. Any modification to or deletion of a provision (or part of a provision) under this clause shall not affect the legality, validity and enforceability of the rest of the present general terms and conditions.
Article 3 - Offers and Tenders
1. All offers shall be free of obligations until such time as the offer has been accepted.
2. The offers made by DHATEC shall be free of obligations and they shall be valid for a period of thirty days, unless indicated otherwise.
3. Verbal agreements made by any employee or agent of DHATEC are not to be considered binding. Agreements only become binding upon written confirmation from Dhatec.
4. If the Buyer places an order with Dhatec by telephone or verbally, it must give written confirmation thereafter stating that such order was agreed. If DHATEC receives no written confirmation, any eventual double deliveries shall be at the expense of the Buyer.
5. Terms of delivery given in DHATEC's offers shall only be tentative and exceeding such terms shall not entitle the Buyer to dissolution or damages, unless explicitly agreed upon otherwise.
6. The prices given in the above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of shipment costs and possible packaging and administration costs, unless explicitly stated otherwise.
7. If the acceptance deviates from the offer given, DHATEC shall not be bound by it. The Agreement shall in such event not be concluded in accordance with said deviated acceptance, unless DHATEC indicates otherwise.
8. Offers and tenders shall not apply automatically to repeat orders.
Article 4 - Execution of the Agreement
1. DHATEC shall use its best endeavours to execute the Agreement.
2. If and in so far required for the proper execution of the Agreement, DHATEC shall have the right to have certain work carried out by third parties.
3. The Buyer shall provide DHATEC in due time with all necessary data for the execution of the Agreement and DHATEC shall have the right to suspend the execution of the Agreement and / or to charge the Buyer for the additional costs resulting from any delay in the event of non-receipt of such necessary data.
4. DHATEC shall not be liable for any direct or indirect damages caused as a result of DHATEC having worked on the basis of incorrect and / or incomplete data provided by the Buyer.
5. If the Parties have agreed that the Agreement will be executed in stages, DHATEC can suspend the execution of the parts belonging to a follow-up stage until such time as the Buyer has approved the results of the concluded stage.
6. If DHATEC or third parties engaged by DHATEC do work at the Buyer's site or at a site designated by the Buyer, the Buyer shall provide the employees, free of charge, with all reasonable facilities requested by said employees.
7. The Buyer shall indemnify DHATEC against any claims filed by third parties who have sustained damage or loss attributable to the Buyer in connection with the execution of the Agreement.
8. If for any reason an order is cancelled the Buyer shall fully compensate DHATEC for any direct costs incurred in the preparation of such order.
Article 5 - Delivery
1. Delivery shall be made under Incoterms ex works/warehouse of DHATEC.
2. If delivery is made on the basis of the "Incoterms", the latest version of the "Incoterms", shall apply.
3. Buyer shall have title to the goods at the moment DHATEC delivers or has the goods delivered to the Buyer, or at the moment which the goods are put at the Buyer's disposal under the Agreement.
4. If the Buyer refuses to take delivery or fails to give information or instructions necessary for the delivery, DHATEC shall be entitled to store the goods at Buyer's risk and expense.
5. If the Buyer fails to take delivery at Dhatec’s warehouse or any other agreed delivery site within the time set out in the Agreement then Dhatec shall be entitled to charge the Buyer for extended storage.
6. If the goods are serviced, DHATEC shall be entitled to charge applicable service charges. Said service charges shall be invoiced separately.
7. If, in the framework of the execution of the Agreement, DHATEC requires data to be provided by the Buyer, the date of delivery shall commence after the Buyer has provided DHATEC with said data.
8. DHATEC shall be entitled to deliver the goods in parts and it shall be entitled to invoice the delivered goods separately.
Article 6 - Samples and Models
1. If a sample or model has been given to the Buyer, then the assumption is that such has been given by way of indication only, unless the Parties agree explicitly that the product to be delivered shall correspond with it.
Article 7 - Inspection & Complaints
1. The Buyer shall examine the delivered goods at the moment of delivery.
2. Possible visible shortcomings must be communicated in writing to DHATEC within three days following delivery. Non-visible shortcomings shall be reported within fourteen days following their detection but no later than three months following delivery.
Article 8 - Remuneration, Price and Costs
1. DHATEC shall be allowed to apply a price increase if it can demonstrate that significant changes in price occurred between the moment the offer was made and the moment of execution of the Agreement with respect to exchange rates, salaries and wages, raw material, semi-finished products or packaging material.
2. The Buyer shall be entitled to dissolve the Agreement if the price increase amounts to more than 10%, unless said price increase is the result of a change to the Agreement.
3. The prices given by DHATEC shall be exclusive of VAT and other government levies, duties and taxes, as well as other expenses within the scope of the Agreement, including shipment and administration costs, unless stated otherwise.
Article 9 - Changes to the Agreement
1. If it is demonstrated during the execution of the Agreement that the work to be done needs to be changed and / or supplemented in order to ensure its proper execution, the Parties shall amend the Agreement accordingly in due time and upon mutual consultation.
2. If the Parties agree that the Agreement needs to be changed and / or supplemented, this decision may influence the time of completion. DHATEC shall inform the Buyer thereof as soon as possible.
3. Should the change and / or supplement to the Agreement have any financial and / or qualitative consequences, DHATEC shall inform the Buyer thereof in advance.
4. If a fixed rate has been agreed upon then DHATEC shall indicate the degree to which the change or supplement to the Agreement will result in an increase of said fixed rate.
5. Notwithstanding any terms governing Article 9, DHATEC shall not be able to charge additional costs if the change or supplement is the result of circumstances attributable to DHATEC.
Article 10 - Payment
1. Payment shall be made within 30 days from the date of invoice, in the currency in which the goods were invoiced, and under the payment conditions stipulated by DHATEC.
2. DHATEC shall be entitled at any time to demand a prepayment of the total sum or to demand valid security, prior to the delivery of the goods.
3. If the Buyer fails to fulfil its payment obligation within 30 days, then the Buyer shall be in default. In that event, the Buyer shall pay interest at 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply instead. The interest on the amount due and payable shall be calculated as from the day the Buyer is in default until the moment he has paid the amount due in full.
4. DHATEC's claims for payment against the Buyer shall become due upon demand in the event that the Buyer voluntarily or involuntarily becomes subject to any receivership, liquidation or bankruptcy proceedings.
Article 11 - Retention of Title
1. All goods delivered by DHATEC, including without limitation designs, sketches, drawings, films, software and (electronic) files shall remain DHATEC's property until the Buyer has fulfilled its obligations under the Agreement.
2. The Buyer shall not be authorised to lien, pledge or encumber in any way the goods.
3. If third parties seize delivered goods or wish to establish or assert a right over them, the Buyer shall be held to inform DHATEC thereof as soon as possible.
4. The Buyer shall undertake to insure the goods and to keep them insured against damage caused by fire, explosion and water as well as against theft and make the insurance policy available for inspection on first demand.
Article 12 - Guarantee
1. DHATEC shall guarantee that the goods to be delivered are of satisfactory quality and fit for purpose. The Buyer shall indicate all specific requirements in writing at the time of contracting, failing which DHATEC shall not be held liable for any discrepancies.
2. The guarantee mentioned under paragraph 1 shall be valid for a period of three months following delivery to the Buyer.
3. If the goods to be delivered do not comply with said terms, DHATEC shall, at its discretion, replace or see to the repair of the goods, within a reasonable period of time following receipt thereof, or, if the good cannot be returned, following notification of the defect by the Buyer. In the event the good is replaced, the Buyer shall undertake to return the replaced goods to DHATEC.
4. The guarantee mentioned shall not apply when the defect originated as a result of improper use or when the Buyer or third parties have introduced or tried to introduce changes to the goods without DHATEC's written consent or if the goods were used for purposes not originally intended for.
5. If the guarantee given by DHATEC concerns goods produced by a third party, the guarantee shall be limited to the guarantee given by the producer of the goods.
Article 13 - Collection Charges
1. If the Buyer fails to fulfil its obligations (in due time) or defaults on them, then all reasonable costs incurred by DHATEC to obtain monies due shall be borne by the Buyer, including legal enforcement costs calculated in accordance with the Nederlandse Orde van Advocaten (Netherlands Bar).
Article 14 - Suspension and Dissolution
1. DHATEC shall be authorised to suspend the fulfilment of the obligations under the Agreement or to dissolve the Agreement, in the event that:
- the Buyer does not fulfil its obligations under the Agreement.
- DHATEC becomes aware of circumstances giving it reasonable grounds to believe that the Buyer will not fulfil its obligations.
- the Buyer was asked to furnish security to guarantee the fulfilment of its obligations under the Agreement and such security was not provided or is insufficient.
2. In the event of suspension or dissolution of the Agreement, the Buyer shall forthwith settle all sums due and payable.
Article 15 - Return of Goods Put at Buyer's Disposal
1. If DHATEC has put goods at the Buyer's disposal during and in connection with the execution of the Agreement, the Buyer shall return such goods within 14 days in their original state, free of defects and in their entirety.
2. If, for whatsoever reason, the Buyer does not comply with the obligation under paragraph 1, DHATEC shall be entitled to recover damages and costs, including replacement costs, from the Buyer.
Article 16 - Liability
1. Notwithstanding any other provision of the Agreement, the total liability of Dhatec arising or in connection with the Agreement, whether arising in contract, tort (including negligence), or for breach of statutory duty, misrepresentation or otherwise shall be limited in all circumstances to one hundred per cent (100%) of the price of the Agreement.
2. DHATEC shall not be liable for consequential loss, including loss of profit, loss of production, loss of use, loss of business and business interruption and loss of revenue, profit or anticipated profit whether direct or indirect.
Article 17- Anti-Corruption and Bribery
- The Buyer shall comply with all applicable laws, statutes and regulations relating to anti-corruption and anti-bribery.
Article 18 - Transfer of Risk
1. Title and risk to the goods shall pass to the Buyer upon delivery.
Article 19 - Force Majeure
1. If either Party is prevented from, or delayed in, performing any of its obligations under the Agreement by Force Majeure, whether in part or in whole, it must promptly notify the other Party of the circumstances constituting the Force Majeure and of the obligations the performance of which is thereby delayed or prevented and in the event of a delay, the likely duration of such delay.
2. For the purpose of the Agreement, a Force Majeure event shall mean any event beyond the control of the Party claiming to be affected thereby, and which by the exercise of reasonable care and diligence that Party is unable to prevent, including but not limited to the following:
(a) Riot, war, insurrection, rebellion or sabotage, invasion, act of foreign enemies, hostilities, acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power and confiscation or expropriation;
(b) Ionising radiations or contamination by radioactivity from any nuclear fuel;
(c) Earthquake, flood and/or other natural physical disaster;
(d) Named storms; or
(e) Strikes or industrial disputes by labour not employed directly or indirectly by the affected Party.
3. Throughout the duration of the events of Force Majeure, the Party giving notice shall be excused from the performance, or the timely performance, as the case may be, of the fulfilment of its obligations for so long as the event giving rise to such prevention or delay may continue. If this period lasts for more than two months, either Party shall be entitled to dissolve the Agreement.
4. Neither Party shall be liable for failure to perform their obligations which arises as a direct result of a Force Majeure event other than the obligation to make payments due and payable under the Agreement and both Parties shall bear their own respective costs arising from and attributable to Force Majeure.
Article 20 - Intellectual Property
1. Intellectual Property means any and all intellectual property, including without limitation, inventions, patents, trademarks, registered design, rights in domain names, pending applications for any of the foregoing, trade and business names, brand names, unregistered trademarks, unregistered designs and rights in designs, copyright and rights in the nature of copyright, database rights, moral rights, rights in know-how and confidential information.
2. Any Intellectual Property owned by DHATEC within the framework of the Agreement, shall remain DHATEC's property, irrespective of whether they have been handed over to the Buyer or to third parties, unless agreed upon otherwise in writing.
3. All Intellectual Property provided by DHATEC, shall be destined to be used by the Buyer exclusively and must not be reproduced, made public or brought to the notice of third parties by the Buyer without the prior written consent from DHATEC.
Article 21 - Confidentiality
1. Neither Party shall disclose to any third party (professional advisors subject to a like duty of confidentiality excepted) any confidential information disclosed by any other Party under or in furtherance of the Agreement without the written consent of the other Party.
2. A Party may disclose confidential information: (a) to its employees, officers, representatives, agents or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Agreement. Each Party shall procure that its employees, officers, representatives or advisers to whom it discloses the other Party’s confidential information comply with this article 20; (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations and exercise its rights under the Agreement.
Article 22 - Non-employment of the opposite Party's personnel
- Throughout the duration of the Agreement and for one year following termination thereof, the Buyer shall not in any way, hire or employ, be it directly or indirectly, staff of DHATEC or of enterprises with whom DHATEC has engaged to execute the present Agreement.
Article 23 – Settlement of Disputes
1. Any dispute arising out of or in connection with the Agreement which cannot be resolved by agreement between the Parties shall be submitted to the Dutch Courts of Law for resolution.
Article 24 - Applicable Law
1. This Agreement and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation (including any non-contractual disputes or claims), shall be governed by and construed in accordance with Dutch law.
