General terms and conditions of purchase, hereinafter referred to as “Terms and Conditions”, of Elcee Group B.V.
Article 1 - Definitions
1. The following definitions apply in these Terms and Conditions:
(a) ELCEE: Elcee Group B.V., with its registered office in Dordrecht and its principal place of business at Kamerlingh Onnesweg 28 in Dordrecht, registered with the Chamber of Commerce, entry number 61393800, together with its legal successor(s) and/or the persons or legal entities appointed by it, together with the (group) companies and/or participating interest(s) that form part of this company as defined in Book 2, Section 24 (a, b and c) of the Dutch Civil Code;
(b) Supplier: the person or organisation that has concluded a Contract with ELCEE;
(c) Delivery: putting Products into Elcee’s possession, Delivery Duty Paid (Incoterms 2010), unless otherwise agreed;
(d) Order: a statement by ELCEE to the Supplier concerning the technical specification and the desired quantities, delivery time and place of delivery of the Products, all this in accordance with the Supplier’s product range;
(e) Quotation: a written estimate, budget or cost estimate by the Supplier in response to a request from ELCEE concerning one or more of the Supplier’s Products;
(f) Contract: the entirety of agreements between ELCEE and the Supplier concerning the sale and Delivery of Products to ELCEE by the Supplier;
(g) Parties: ELCEE and the Supplier;
(h) Product(s): the product or products sold and supplied or yet to be supplied to ELCEE by the Supplier;
(i) Defective Product(s): any non-conformity of the Product or the Products with the specification by Contract and/or these Terms and Conditions and any failure of the Product or the Products otherwise to function properly, including the qualification as set out in Book 6, Section 186 of the Dutch Civil Code.
The definitions have the same meaning in the singular and the plural.
Article 2 - Scope
1. These Terms and Conditions form part of and apply to all Contracts between ELCEE and the Supplier and also to all new Contracts and additionally all (legal) acts of ELCEE with, for or in respect of the Supplier, including non-contractual obligations.
2. A general reference by the Supplier to (general) terms and conditions it applies does not lead to them being applicable. ELCEE expressly rejects the applicability of the (general) terms and conditions applied by the Supplier.
3. Agreements made between the Supplier and ELCEE that differ from the content of the Terms and Conditions applied by ELCEE or supplement them are only valid in so far as they have been set down in writing and have been signed by both Parties as approved.
4. If one or more provisions of these Terms and Conditions are invalid or should be invalidated as a whole or in part at any time, the other provisions of these Terms and Conditions continue to apply in full. ELCEE and the Supplier will then consult in order to agree new provisions to replace the invalid or invalidated provisions, the purpose and the effect of the original provisions being taken into account as far as possible.
5. In the event of inconsistency between a provision in a Contract concluded by ELCEE and the Supplier and a provision in the present Terms and Conditions, the provision in the Contract will prevail.
Article 3 - Conclusion of a Contract and changes
1. A Contract between ELCEE and a Supplier is concluded:
(a) at the time that the Quotation prepared by the Supplier is signed by ELCEE as approved;
(b) at the time that the Order drawn up by ELCEE has been received by the Supplier, unless the Supplier rejects this Order within 24 hours of receipt.
2. If the Supplier responds to a request from ELCEE in the form of a Quotation that differs from that request to a limited degree, a Contract is concluded in accordance with ELCEE’s request and these differences do not form any part of the Contract.
3. Contracts concluded between the Supplier and an unauthorised employee of ELCEE, and also oral agreements, do not bind ELCEE until they have been confirmed to the Supplier in writing by an employee authorised to do this on ELCEE’s behalf.
4. ELCEE is at any time entitled to change the volume and/or the quality of the Products to be supplied in consultation with the Supplier. Changes will be agreed between the Parties in writing.
5. If, in the opinion of the Supplier, a change as referred to in paragraph 4 has consequences for the price agreed between the Parties and/or the date of the Delivery of the Products, the Supplier is obliged, before implementing the change, to inform ELCEE about this in writing as soon as possible, but within not more than three (3) days of becoming aware of the required change. Such a change must be agreed between the Parties in writing. If ELCEE does not accept this change in price or Delivery, it is free to cancel the entire Contract, without owing the Supplier any form of compensation.
Article 4 - Quality and description
1. The Products must:
(a) be in accordance with the provisions in the Contract regarding quantity, description and quality; and
(b) have been made from sound materials and be of sound construction; and
(c) in all respects be the same as the samples or models that have been made available or provided by ELCEE and/or the Supplier; and
(d) deliver the performance (finish, etc) as described in the Contract; and
(e) be entirely suitable for the purpose made known to the Supplier.
Article 5 - Packaging, Delivery and third parties
1. The Products must be properly packed and protected by the Supplier in accordance with the prevailing (international) rules and regulations, such that they reach their destination by normal transport in good condition. All Products must be supplied with the associated documentation (in any event including the technical data, order numbers, product description and the quantity of Products).
2. The Supplier will deliver the Products and the associated documentation on the date specified in the Contract. If a delivery period has been agreed, it starts on the later of the following dates:
(a) the date of conclusion of the Contract;
(b) the date on which ELCEE has given the Supplier possession of the documents necessary for executing the Contract (including data, permits, etc, samples and models).
3. A delivery period agreed between the Parties is a deadline. In the event of overdue Delivery the Supplier is in default with no further notice of default being required and the Supplier will automatically incur an immediately payable penalty, with no warning and/or notice of default being required, of 1% (one per cent) of the agreed amount for each day that the Supplier is in default, with a maximum of 5% (five per cent).
4. The Supplier must notify ELCEE of an imminent failure to comply with a delivery period immediately in writing. Should a delay occur, the Supplier is liable for any damage that ELCEE suffers or has suffered as a result.
5. All correspondence between ELCEE and the Supplier must quote the ELCEE order number.
6. Ordered Products must be delivered Delivery Duty Paid (Incoterms 2010), carriage paid, to the place of Delivery indicated by ELCEE , unless otherwise agreed between the Parties. Transport, security and loading and unloading are at the Supplier’s expense and risk.
7. The Supplier is obliged to collect and take back the packaging materials at its own expense and risk if ELCEE so requests.
8. Unless otherwise agreed in writing, the Supplier is not entitled to make part deliveries.
9. The Supplier is bound to follow all of ELCEE's instructions regarding (the method of) delivery.
10. The Supplier is not permitted to arrange for third parties to carry out the execution of the Contract as a whole or in part without ELCEE's prior consent.
Article 6 - Storage
1. If for any reason ELCEE is unable to take delivery of the Products supplied on the agreed date, the Supplier, if its storage facilities so allow, will at ELCEE’s request store, protect and insure the Products and take all reasonable measures to prevent a decline in quality until they have been delivered to ELCEE.
2. ELCEE will reimburse the Supplier the costs of storage, security and insurance at the Supplier’s usual rate and, failing this, the usual rate in the sector, from the date that the Products are ready for Delivery or, if this is a later date, from the delivery date agreed in the Contract.
Article 7 - Prices; payment
1. The prices quoted by or on behalf of the Supplier are in euros, US dollars or Chinese RMB, exclusive of VAT, and include the costs of Delivery, including packaging, shipping, loading and unloading, transport, government levies and insurance, unless the Parties have stated otherwise in the Contract.
2. The prices are fixed, unless the Contract refers to circumstances that may lead to price adjustment. Under no circumstances will the Supplier be entitled to pass on price increases, except with ELCEE's prior written approval.
3. Unclear copy, sketches, drawings or models, additional laborious text, defective information carriers or computer software or data files, defective method of delivery of the Products to be supplied by the Supplier that require further work and/or greater cost than was or could be foreseen on the conclusion of the Contract are no reason to increase the agreed price or parts thereof.
4. Payment of an invoice by ELCEE will be made within two months following the month in which the invoice has been received by ELCEE, an invoice not being sent until after complete and correct execution of the Contract, unless the Parties have agreed different payment terms in writing.
5. The date of payment is the date on which the amount owed by ELCEE is debited from its bank or giro account. If this payment has not been made within the period set, ELCEE will be granted a reasonable period of time for payment by written reminder. If and in so far as ELCEEhas still not paid after this reasonable period of time, it will owe statutory interest as defined in Book 6, Section 119 of the Dutch Civil Code in addition to the principal.
6. ELCEE is entitled to suspend payment if it discovers a failure in the Products supplied.
7. ELCEE is entitled to compensation or offsetting of the amount of the invoice against claims of ELCEE on the Supplier, irrespective of the reason for them and irrespective of their being due and payable.
Article 8 - Transfer of risk and title; products provided
1. ELCEE acquires title to the Products from the time that they are delivered (DDP) or as much earlier as legal delivery has taken place or if the Products are stored at ELCEE’s request and on its behalf.
2. If the Products are stored by the Supplier at ELCEE’s request in accordance with the provisions in article 6, the Supplier is obliged to store the Products separately as known property of ELCEE. The Products will nevertheless remain at the Supplier’s risk until they have been delivered to ELCEE.
3. Subject to the provisions in paragraph 2, the risk for direct and indirect damage to or caused by the Products supplied will pass to ELCEE immediately following Delivery to ELCEE.
4. If ELCEE has provided the Supplier with products in connection with the execution of the Contract, ELCEE retains their ownership. The Supplier will act with due care and diligence in this regard. This for instance means that the Supplier will refrain from acts that may lead to loss of these products (for example through specification, accession, confusion or otherwise) or burdening or encumbering with rights of third parties or damage.
5. The Supplier will at its own expense insure the products referred to in paragraph 4 on customary terms against all damage resulting from whole or partial loss or damage, irrespective of the cause.
6. The Supplier will use the products referred to in paragraph 4 at its own risk, for the purpose for which they have been provided. This for instance means that ELCEE is not liable for damage that the Supplier suffers as a result of their use, unless this damage is a result of ELCEE deliberately or wilfully acting recklessly.
Article 9 - Testing, inspection and complaints
1. ELCEE is entitled to test the Products or have them tested at any time both during their production and processing and during storage. The Supplier will grant ELCEE or its representative access to the place of production, processing or storage on demand. The Supplier will cooperate with the testing without charge.
2. If in any testing pursuant to the previous paragraph ELCEE finds that the Products are not or will not be in accordance with the specifications in the Order and/or Contract, it will inform the Supplier of this immediately. The Supplier is then bound, notwithstanding the provisions in articles 5.3 and 5.4, to take all the necessary measures to comply with the specifications in the Order and/or Contract.
3. In so far as the Products have not previously been tested as described in paragraph 1 of this article, ELCEE is obliged to test the Products or have them tested within 30 (thirty) days of Delivery. In the event of rejection of the Products supplied, ELCEE will inform the Supplier about this immediately. The Supplier will then arrange for repair or replacement of the rejected Products within eight (8) days.
4. If the Supplier fails to fulfil its obligation under paragraph 3 of this article within the period of time laid down therein or where the Parties fail to reach agreement about the Delivery of replacement Products, ELCEE is entitled to take steps itself or have them taken at the Supplier’s expense and risk, which may for instance consist of purchasing the required Products from a third party.
5. If the Supplier fails to take back the rejected Products within eight (8) days, ELCEE has the right to return the Products to the Supplier at the latter’s expense.
Article 10 - Guarantee
1. Notwithstanding the other provisions in these Terms and Conditions, the Supplier guarantees:
(a) that the Products supplied to ELCEE will comply with the provisions in article 4; and
(b) that the Products supplied to ELCEE will comply with the Contract and anything else agreed between the Parties in writing; and
(c) that the Products supplied to ELCEE will comply with the customary requirements and standards with which they may reasonably be expected to comply at the time of Delivery and for which they are intended in normal use; and
(d) that the Products supplied to ELCEE will comply with all the relevant national and international legislation and regulations concerning for instance quality, the environment, safety and health and the required certifications have been obtained;
(e) that the Products are produced in a safe environment and there is no question of child labour and the work is done of the workers’ own free will;
(f) the Products come with accurate directions for use and instructions for maintenance and assembly, for example.
2. The guarantee referred to in paragraph 1 of this article is valid for a period of at least two (2) years following Delivery or as much longer as the Supplier usually provides a guarantee to its customers.
3. The Supplier indemnifies ELCEE and will compensate it fully in so far as the Supplier acts contrary to the guarantees provided under 10.2.
Article 11 - Failure; repair; force majeure
1. Notwithstanding the other provisions in these Terms and Conditions, the Supplier is in default in the event of an attributable failure, with no further notice of default being required. An attributable failure in any event exists if the Products have not been delivered within the agreed time or if there are Defective Products, unless the Supplier can show the existence of normal wear and tear or that ELCEE is to blame for the defect.
2. Defects arising within two (2) years of delivery will be repaired immediately and fully by the Supplier without charge on (written) demand by ELCEE to this effect, if necessary by replacement of the Products or parts thereof.
3. Unless this is impossible, repair will always be carried out on site. If the repair cannot be carried out within a period of time to be determined by ELCEE or on site, the Supplier will arrange for transport to and from the location suitable for repair at its own expense and risk. At ELCEE’s request the Supplier will provide a suitable replacement during the period needed for repair without charge.
4. Following repair of the Defective Products, a new guarantee period will begin as described in article 10, paragraph 2 and the Supplier will guarantee the sound condition under article 10, paragraph 1.
5. ELCEE is always entitled, if it considers this reasonably necessary, at the Supplier’s expense, to make (temporary) repairs or have them made after ELCEE has given the Supplier the opportunity to make the repairs or have them made itself and the Supplier has failed to do this within the reasonable period of time set by ELCEE.
6. The term force majeure in any event does not mean: the failure of the Supplier to perform (on time) as a result of fire, water damage, factory occupation, import and export restrictions, government measures, disruptions in the supplies of energy, the inability to fulfil the guarantee, lack of staff, strikes, staff sickness, late delivery or unsuitability of raw and other materials, attributable failures or wrongful conduct of the Supplier’s subcontractors or third parties engaged by the Supplier or solvency or liquidity problems on the part of the Supplier. Force majeure does in any event exist in the event of imminent risk of war, war, riot, flooding and earthquake.
7. During the period of force majeure either Party may suspend its obligations under the Contract. If this period lasts more than two (2) months, either Party is entitled to dissolve the Contract, with no obligation to compensate the other Party for damage.
Article 12 Liability
1. The Supplier executes the Contract entirely at its own risk. The Supplier is liable for all damage resulting from the execution of this Contract and suffered by ELCEE or third parties, irrespective of whether this damage has been caused by the Supplier, its staff or third parties (natural persons or legal entities) engaged by the Supplier.
2. The Supplier is liable for the damage on the part of ELCEE as a result of overdue Delivery by the Supplier. This damage includes the damage that ELCEE must reimburse to its customer as a result of that overdue Delivery because of which ELCEE is unable to fulfil its obligation towards its customer. ELCEE’s damage in this respect also means the profit lost by Elcee that corresponds to the Contract between it and that customer.
3. The Supplier is liable for the damage that ELCEE or a third party suffers as a result of the Delivery of a Defective Product, unless there is unattributable failure (force majeure) on the part of the Supplier as referred to in paragraph 6 of the previous article.
4. The Supplier indemnifies ELCEE against all financial claims of third parties against ELCEE as a result of the overdue Delivery or the Delivery of a Defective Product by the Supplier, including the case where ELCEE is regarded as a producer as defined in Book 6, Section 187, paragraph 3 or 4 of the Dutch Civil Code.
5. Without prejudice to its other rights, ELCEE is entitled to charge the Supplier all judicial and extrajudicial costs - including the actual costs of legal assistance - incurred by ELCEE for the collection of any claim on or for obtaining fulfilment of any obligation by the Supplier.
6. The Supplier is obliged to insure itself adequately and keep itself adequately insured in terms of legal and professional indemnity and business liability. The Supplier agrees - immediately after it has been held liable by ELCEE and the latter has so requested - to cede to ELCEE all claims to payments of insurance proceeds under such insurance agreements, on submission of copies of all the policies.
Article 13 - Intellectual and industrial property rights
1. On the conclusion of the Contract the Supplier transfers to ELCEE all the intellectual property rights and database rights that have been or will be acquired or developed by the Supplier with regard to the Product(s) in the context of executing the Contract, without reserving any power belonging to them. This transfer will be accepted by ELCEE on the conclusion of the Contract or immediately after the creation of these rights.
2. If and in so far as the Parties have agreed in writing that no transfer as referred to in the previous paragraph will take place, the Supplier grants ELCEE a non-exclusive licence to any and all of its intellectual property rights to the Products, including but not limited to rights with regard to patents, (utility) models, trademarks and know-how. Under this licence ELCEE has the right to use the Products or allow them to be used (including modifying them or having them modified, processing and treating them and repairing them) and ELCEE also has the power to supply the Products, whether or not as part of other goods, or to give them into use to third parties. The fee for this licence is included in the price.
3. ELCEE retains all the rights, including but not limited to intellectual property rights and database rights, to all the documents, titles, logos, articles, copy, sketches, drawings, models (such as tools and dies), photographic recordings, lithographs, films, information carriers, computer software, address files and/or data files provided to the Supplier by ELCEE or third parties. The Supplier is exclusively entitled to use these items in the framework of fulfilling its obligations under the Contract.
4. The Supplier will mark all the tools and equipment provided to the Supplier by ELCEE or for which ELCEE pays the Supplier for the production of the Products with the following text: “property of ELCEE B.V.”. ELCEE’s tools and equipment may only be used for the production of Products for ELCEE.
5. The Supplier will return all the copy, sketches, drawings, models (such as tools and dies), photographic recordings, lithographs, films, information carriers, computer software and/or data files, approved or rejected, to ELCEE, in each case at ELCEE’s request and within a month of Delivery, or at ELCEE’s request archive them or with ELCEE’s prior written consent destroy them, in which case ELCEE requires proof of destruction. The Supplier is not entitled to make any disclosure or duplication in any form whatever without ELCEE’s written consent. Returning these items is at the Supplier’s expense and risk.
6. The Supplier guarantees that the Products do not breach the intellectual property rights of ELCEE or third parties and indemnifies ELCEE and its customers in respect of any breach, including comparable claims with regard to know-how, unlawful competition, etc.
7. If an action has been brought for breach of intellectual property rights or if the possibility thereof exists, the Supplier will, at ELCEE’s option and without prejudice to ELCEE’s rights, including its right to dissolve the Contract, at its own expense:
(a) acquire the right to continue the use of (the respective part of) the Products by ELCEE; or
(b) replace and/or modify the (respective part of the) Product; or
(c) take back the (respective part of the) Product in return for compensation of costs, damage and interest. Modification and/or replacement must not have the consequence that ELCEE is restricted in the possibilities for use of the Products.
8. The Supplier undertakes, at its own expense, to take all measures that may contribute to preventing standstill at ELCEE and to limiting additional costs to be incurred and/or damage to be suffered by ELCEE.
Article 14 - Confidentiality
1. The Supplier, its staff and third parties engaged by it are obliged to maintain the strictest confidence with regard to all information concerning ELCEE that they should acquire in connection with the Contract or its execution, including the existence of the Contract and the nature of, the reason for and the result of the work done. The obligation to maintain confidence remains in effect once execution of the Contract is complete.
2. With regard to the information provided to the Supplier by ELCEE, the Supplier undertakes:
(a) to take account of all reasonable measures for safe keeping;
(b) only to disseminate the information acquired in accordance with the need to know principle; and
(c) not to retain the information for any longer than is reasonably necessary for the execution of the Contract.
3. In the event of a breach of the provisions in this article by the Supplier, its staff and/or third parties engaged by it, the Supplier will automatically incur an immediately payable penalty of €10,000 as a lump sum and then €1,000 for each day that the breach persists, with no warning or notice of default being required, without prejudice to ELCEE’s right to compensation in full of the damage it has suffered.
4. The Supplier must ensure that its staff and the third parties it engages sign a non-disclosure agreement covering the provisions in this article. At ELCEE’s request the Supplier will provide ELCEE with copies of such non-disclosure agreements.
Article 15 - Duration and dissolution
1. Where a Contract can be regarded as a continuing performance contract, it may be terminated by ELCEE subject to one (1) month’s notice, without ELCEE being liable to any compensation in this connection. This also applies where an order has been placed several times in succession for a periodic Delivery of Products.
2. If the Supplier fails to execute the Contract properly or a deadline in the execution of a Contract is exceeded or in ELCEE’s opinion it is established that the Supplier will not execute the Contract or will not do so properly, ELCEE, without prejudice to its other rights, has the right to dissolve the Contract immediately as a whole or in part without further notice of default by simple notice to the Supplier.
3. ELCEE is entitled to dissolve the Contract with immediate effect, without observing any notice period or paying any compensation, where (in respect of or in the name of) the Supplier: a petition has been filed for (temporary) court protection from creditors or bankruptcy or when the Supplier has actually been granted court protection from creditors or bankruptcy; the business has been closed down or if the company is in liquidation; any necessary permits have been lost, (a part of) the business property or items intended for the execution of the Contract has or have been seized; or (in the case of a natural person) the Supplier has died; a (legal) merger takes place; a substantial part of the control is lost to a third party.
4. If ELCEE dissolves the Contract, the Supplier must immediately pay back all the payments received by it in error. In so far as that which has already been performed by the Supplier is not open to undoing, the value will be set to a reasonable level to be determined by ELCEE. In so far as undoing is possible, ELCEE has the right at its discretion either to keep that which has been performed for a reasonable fee to be determined by ELCEE or to return it to the Supplier at the latter’s expense and risk. Dissolution will discharge ELCEE from its obligation to pay and the Supplier will not be able to enforce any kind of right to compensation, in whatever form.
5. Dissolution as referred to in this article will not have the consequence that rights of ELCEE, which in ELCEE’s reasonable opinion are by their nature intended to remain in force following dissolution, will end.
Article 16 - Transfer of rights and obligations
1. The Supplier is not entitled to transfer any right arising from the Contract to third parties without ELCEE’s prior written consent. In addition to effect under the law of obligations, the limitation of the transferability also has property law effect as referred to in Book 3, Section 83, paragraph 2 of the Dutch Civil Code. The Supplier gives ELCEE the right in advance to transfer the rights arising from the Contracts to third parties as a whole or in part.
Article 17 - Product recall
1. If the Supplier becomes aware of a defect or a suspicion of a defect in the Products supplied, it must inform ELCEE about it immediately of its own volition. The Supplier must in any event state: 1) the type of defect; 2) the production data of the potentially unsafe Products supplied to ELCEE; 3) any other information that may be important.
2. If in ELCEE’s opinion further information is needed for the investigation into a potentially unsafe Product and/or the measures to be taken, the Supplier must on request provide all the relevant information that it has or that it could reasonably have at its disposal without charge.
3. ELCEE and the Supplier will then by mutual agreement investigate whether and if so what measures are necessary to avert the danger that has arisen through a potential defect in the Product supplied to ELCEE. The measures to be taken may include a product recall.
4. ELCEE may require the Supplier to carry out a product recall. All the costs associated with this and the damage suffered by ELCEE are for the Supplier’s account, unless the cause of the product recall is attributable to a deliberate act or deliberate recklessness by ELCEE or in so far as ELCEE’s liability results from mandatory law.
Article 18 - Governing law and choice of forum
1. All Contracts to which these Terms and Conditions apply and the obligations and disputes arising from them are governed exclusively by Dutch law, even if an obligation is fulfilled as a whole or in part abroad or if the party involved in the legal relationship has its place of business there. The applicability of the Vienna Sales Convention is excluded.
2. All disputes with Purchasers based in the European Union resulting from Contracts, or contracts that may be the consequence thereof, will be submitted exclusively to the competent court of the district of Rotterdam, Dordrecht location, in the Netherlands. Disputes with Purchasers based outside the European Union resulting from Contracts, or contracts that may be the consequence thereof, will be resolved in accordance with the Arbitration Regulations of the Netherlands Arbitration Institute by one arbitrator who will be appointed according to the list procedure, the place of arbitration being Rotterdam (Netherlands) and the proceedings being conducted in Dutch, unless ELCEE chooses to institute proceedings in the country in which the Purchaser is based and without prejudice to the right of the Parties to take interim measures.
Article 19 - Filing
1. These Terms and Conditions apply from 1 March 2017 and have been filed at the Chamber of Commerce in Rotterdam.
2. The most recently filed version or the version applying at the time of the conclusion of the legal relationship with ELCEE applies in each case.
3. For the interpretation of the Terms and Conditions the Dutch text prevails at all times