1.1        
These general purchase conditions shall apply to all (purchase) orders and acceptances on the part of the buyer. Insofar as the seller would refer to other terms and conditions in its offer or acceptance, their applicability is expressly rejected.

1.2        
If any provision of these general purchase conditions should be null and void and/or nullified, the other provisions will remain in full force and the seller and the buyer will consult to agree on new provisions to replace the null and void or nullified provisions, all this as much as possible in accordance with the original intention between the parties.

1.3        
If these general purchase conditions have been applicable to the seller at any time, the buyer shall be deemed to have agreed to the applicability of these conditions to subsequent agreements with the buyer, even if this has not always been explicitly re-agreed.

 

Article 2 Amendments

2.1        Amendments to the purchase agreement and deviations from these general purchase conditions shall only be effective if they have been agreed in writing or electronically between the buyer and the seller.

Article 3 Quality and description

3.1        With due observance of what is otherwise provided in the order and any accompanying (technical) specification, the goods to be delivered shall be:

a) With regard to quantity, description and quality, in accordance with what is stated in the order.

b) made of good materials and of a good design.

c) entirely suitable for the purpose made known to the seller by the buyer.

 

Article 4 Packaging and shipment

4.1        Transport and delivery of the goods shall take place at the seller’s expense and risk.

4.2        The goods must be properly packed and secured in such a way that they reach their destination in good condition during normal transport. The seller will obtain adequate insurance to the buyer's satisfaction against any risks reasonably considered present during transport.

4.3        The goods will be delivered by the seller at, or sent for delivery to, the agreed place or places in the manner stipulated in the order or agreed afterwards. Only a waybill signed by (a subordinate of) the buyer or a third party designated by the buyer can serve as proof of delivery of the goods.

 

Article 5 Storage

5.1        If, for any reason whatsoever, the buyer, or a third party designated by the buyer on its behalf, is unable to receive the goods at the agreed time while the goods are ready for shipment, the seller shall, when requested by the buyer, store the goods free of charge, secure them and take all reasonable measures to prevent deterioration in quality until the goods have been delivered to the buyer or a third party designated by it.

 

Article 6 Transfer of ownership and risk

6.1        The ownership and risk of the goods shall pass to the buyer upon delivery.

6.2        If it appears that the delivered goods do not comply with the agreement, such at the exclusive discretion of the buyer, the buyer will be entitled to reject the delivered goods within 30 days of delivery by means of a written or electronic statement. The seller shall be obliged to collect and take back the rejected goods at the buyer's first request without delay and at his own expense and risk.

 

Article 7 Time of delivery

7.1        The seller will deliver the goods on the day and time of delivery or, at the latest, on the last day of the delivery period stipulated in the order or agreement.

7.2        As soon as the seller knows or expects that the goods cannot be delivered on time, the seller shall notify the buyer thereof without delay. The seller will be liable for any damage suffered by the buyer due to the delay as well as due to late notification of (probable) delays.

7.3        If the goods, or some of the goods, cannot be delivered or are not delivered at the agreed time or within the delivery period, the seller will be in default by operation of law and the buyer will immediately be authorised to terminate the agreement for breach of contract ‘(ontbinding’), without prejudice to buyer’s other rights and remedies. The termination for breach of contract (‘ontbinding’) shall extend not only to the goods that have not yet been delivered, but also to the goods, which had already been delivered under the same purchase agreement, if these goods can no longer be used effectively as a result of the non-delivery of the remaining goods. The unless-clauses (‘tenzij-clausules’) of sections 6:265 and 7:22(1) of the Dutch Civil Code, which state that there is no right to terminate for breach (‘ontbinding’) if the failure or deviation from what was agreed upon, given its special nature or minor importance, does not justify termination, are not applicable. Section 7:22 paragraph 2 of the Dutch Civil Code shall not apply either.

7.4        Upon termination for breach of contract (‘ontbinding’) of the purchase agreement, the buyer shall be entitled to return to the seller, at the seller's expense and risk, any goods that have already been delivered under the same purchase agreement but can no longer be used effectively and to recover from the seller any payments he may have made for such goods.

7.5        Upon termination for breach of contract (‘ontbinding’) of the purchase agreement, the seller will be obliged to compensate the buyer, in addition to the damage referred to in this article, for any further damage that the buyer may suffer, including as a result of any cover purchase and/or loss of profit.

 

Article 8 Warranty

8.1        The seller guarantees that the goods and their application comply with what has been agreed upon.

8.2        The seller guarantees and warrants that the composition and quality of the goods to be delivered pursuant to the order comply in all respects with all applicable requirements laid down in laws and/or other relevant government regulations in force at the time the agreement is concluded. This guarantee and warranty shall also apply to the normal use and application of the goods.

8.3        The seller is liable for damage to and caused by the goods during the warranty period issued by the seller.

8.4        In fulfilment of its liability obligations, the seller is obliged, if the buyer so wishes, to repair the goods or their defective parts free of charge within a reasonable period of time or to replace them with new ones. The seller shall remain liable for further damage.

 

Article 9 Damage or loss due to or during transport

9.1        The seller shall repair or replace free of charge any goods damaged or lost during transport, provided the buyer sends written or verbal notice thereof to the seller.

 

Article 10 Price and payment

10.1       Unless otherwise agreed, the purchase price, is the price including VAT for the goods and additionally includes the costs of packaging, transport and delivery costs at the location designated by the buyer.

10.2       Unless otherwise agreed, a payment term of 60 days after receipt of the invoice by the buyer shall apply.

10.3       The buyer is authorised to suspend the payment of one or more invoices if it detects a defect / deficiency in the goods.

10.4       The buyer is also authorised to suspend the payment of one or more invoices if the delivered goods have been resold by him and his buyer invokes suspension against him. Should the buyer have already paid the price of the goods to the seller in this case, the seller shall be obliged to refund the purchase price to the buyer immediately.

10.5       The buyer is authorised to deduct from the purchase price owed by him the amounts owed by the seller on the basis of the provisions of Articles 7 (time of delivery), 8 (warranty), 9 (damage or loss due to or during transport) and 14 (default, compensation).

10.6       Payment by the buyer shall in no way imply a waiver, discharge or any form of forfeiture of rights.

10.7.      Exceeding a payment term or non-payment by the buyer shall not give the seller the right to suspend or terminate its delivery(s).

 

Article 11 Force majeure

11.1       If the parties cannot fulfil their obligations to each other due to force majeure, fulfilment of those obligations shall be suspended for the duration of the force majeure situation. On the seller's side, the following circumstances, among others, do not qualify as force majeure, or at least do not justify force majeure: non-performance or late performance by producers, suppliers or other third parties engaged by the seller, shortage of materials, (raw) materials or labour, (power) failure(s) of any nature whatsoever, strike, illness of staff and transport difficulties. Moreover, if any of these circumstances occur, the seller cannot claim a price increase. Nor shall the seller then be permitted not to deliver or to deliver later than agreed upon.

 

Article 12 Infringement of intellectual property rights

12.1       The seller will indemnify the buyer against third-party claims due to alleged infringements by third parties of patents or designs or other intellectual property rights accruing to them with regard to the use or application of the delivered goods.

 

Article 13 Termination

13.1       Without prejudice to the provisions of Article 7 (time of delivery), the buyer (also) has the right to terminate the contract (‘ontbinden’) at the time the seller is declared bankrupt, applies for (provisional) suspension of payments or loses the power of disposition of its assets or parts thereof due to attachment or otherwise.

 


Article 14 Default, damages

14.1       If the seller fails to comply with an obligation due under the agreement or these general purchase conditions, the seller will be in default without further notice of default.

14.2       The seller will fully indemnify the buyer against any damage, including consequential damage and/or penalties, which may be suffered by the buyer, his personnel or his customers and which has arisen from or is the result of a breach of contract or an unlawful act on the part of the seller, his personnel or other persons involved by the seller in the execution of the order.

14.3       The seller will fully indemnify the buyer against all financial consequences of third-party claims that are in any way connected with the performance of its obligations under the agreement.

Article 15 Applicable law

15.1       This agreement is exclusively governed by Dutch law. The applicability of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, Vienna 11 April 1980, Trb. 1981, 184 and 1986, 61) does not apply to this agreement.

Article 16 Disputes

16.1       All disputes which may arise between the parties as a result of their agreement or further agreements and other acts in connection with their agreement, such as, for example, though not exclusively, a wrongful act (tort), undue payment and/or unjustified enrichment, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

16.2       No award or procedural order made in the arbitration shall be published

16.3       The parties agree, pursuant to Article 18(1) of the Rules of Arbitration of the International Chamber of Commerce, that the place of the arbitration shall be in Eindhoven, The Netherlands. This shall also be the place for Emergency Arbitrator Proceedings, pursuant to Article 4(1) of Appendix V of the Rules of Arbitration of the International Chamber of Commerce.

16.4       The parties agree, pursuant to Article 20 of the Rules of Arbitration of the International Chamber of Commerce, that the language of the arbitration shall be English.

16.5
      
The parties agree, pursuant to Article 21(1) of the Rules of Arbitration of the International Chamber of Commerce, that the applicable rules of law shall be the laws of the Netherlands (Dutch law). The seat of the arbitration shall be Eindhoven, the Netherlands.