GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS, PROVISION OF SERVICES AND PERFORMANCE OF WORK
Article 1 - General
1.1 These general terms and conditions shall apply to all tenders from and agreements with HiLux5 B.V (hereinafter referred to as contractor) covering (arrangements for) the supply of goods, the provision of services and the performance of work. Deviations from the provisions stipulated in these general terms and conditions are only valid if and insofar contractor has expressly accepted them in writing. References made by principal to its own purchase, contracting or other terms and conditions are not accepted by contractor. The United Nations Convention on Contracts for the International Sale of Goods is not applicable.
Article 2 - Tender
2.1. All tenders submitted by contractor are without engagement. Tenders covering the performance of work or provision of services are based on normal circumstances and normal working hours.
2.2. The intellectual property rights with regard to the tender rest with contractor. Details from the tender shall not be copied, shown to third parties, disclosed or used without contractor's written approval.
2.3. Weights, dimensions and other data stated in catalogues, illustrations, drawings etc. are only binding if and insofar as they are expressly included in an agreement signed by the parties involved or in a confirmation of order signed by contractor.
Article 3 - Agreement
3.1. If the agreement is entered into in writing, it shall take effect on the date upon which contractor signs the agreement, or on the date contractor has mailed the written confirmation of order.
3.2. Changes in the scope and/or status of the services/works agreed upon before and/or during the implementation of the agreement and possibly set forth in writing are understood to be increases or reductions in work. If additional work takes extra time, contractor shall be entitled to an extension of the delivery time and reimbursement of the costs associated with this extension.
3.3. Other changes are understood to be all those changes not regarded as increases or reductions in work. contractor and principal shall agree on price and/or time consequences before implementing these changes.
3.4. Oral promises made by and arrangements made with contractor employees shall not be binding on contractor until after and insofar as they have been confirmed by contractor in writing.
Article 4 - Price
4.1. The prices specified by contractor are exclusive of turnover tax and other government levies and taxes to be paid on sales and supplies, and they are based on "ex works" delivery in accordance with the Incoterms valid on the date of tender, unless stipulated otherwise in these terms and conditions. Ex works delivery is understood to be delivery ex contractor's premises. If contractor carries out work under principal's guidance and supervision, the contractor rates valid at the time of performance shall apply, unless expressly stipulated otherwise in the agreement.
4.2. Unless stipulated otherwise in the agreement, the following costs shall be charged separately:
4.2.1. Travel and subsistence expenses in the broadest sense, including the visas and insurances associated with these travel expenses, as well as suitable hotel facilities as close as possible to the work site and transport to the work site.
4.2.2. Costs of the materials to be used and processed, insofar as no parts of machines and/or installations are involved, which have already been ordered separately for principal's account and risk.
4.2.3. Expenses incurred for telephone conversations associated with the work and made at the work site, as well as the costs of faxes, telex messages and postage, insofar as these services are not provided by principal free of charge.
4.3. Loading and unloading costs and transport costs of raw materials, materials, patterns, tools and other goods supplied by principal are not included in the price and shall be invoiced separately.
4.4. In the event of a delay in the performance of work due to force majeure, and/or unworkable weather and/or conditions which cannot be attributed to contractor, the relevant costs, including waiting time, additional travel and subsistence expenses, are for principal's account.
4.5. If unit prices and/or hourly labour rates have been specified for increases or reductions in work, these prices/rates shall be applicable for up to 15% increase in work or 5% reduction in work compared to the scope of work originally agreed upon.
Article 5 - Obligations on the part of principal
5.1. Principal shall provide the following facilities on schedule, in consultation with contractor and without any associated costs being charged to contractor:
5.1.1. Buildings ready for assembly, foundations in accordance with contractor's specifications, water/ electricity/compressed air lines at the work site and machines and/or installations (to be assembled) available in good condition.
5.1.2. Any electrician's work, plumber's work, lifting work, demolition work, earthwork, brickwork, timber work and paint work etc., insofar as these operations do not constitute an integral part of the contractor supplies and all other work not expressly stipulated in the agreement.
5.1.3. The consumables and utilities deemed necessary by contractor for the performance of the work, such as oils and greases, gas and oxygen, water, electricity and compressed air, heating and lighting, insulation and scaffolding ready for use, the roads needed for transport, etc.
5.1.4. A dry and lockable room for storing machine parts, materials, tools etc. in the immediate vicinity of the work site, as well as on-time transportation of the parts etc. to this site.
5.1.5. An appropriate room for contractor staff, protected against burglary (and heated), with lighting and washing facilities, as well as canteen facilities, first aid and all necessary precautions to protect personnel and objects at the work site.
5.1.6. The statutory safety measures insofar as applicable to the work and notification of contractor personnel of these regulations. In case these regulations are violated, principal shall inform contractor of any such violation immediately.
5.1.7. A work permit and/or any statutory licenses for working overtime, if contractor personnel has to work outside the normal working hours at principal's site, and for the presence of a representative of principal and/or any other permission and/or license required for the implementation of the agreement.
5.1.8. Outside the Netherlands, the best care available in the relevant country if contractor personnel has fallen ill or run into an accident, as well as replacement of personnel that is no longer fit for work, insofar as the relevant costs are not covered otherwise. Responsibility and repatriation in the event that one or more contractor employees should die during the period in which the work is being carried out.
5.2. If Principal makes available (auxiliary) employees for work to be performed by contractor, this should be agreed upon. Where appropriate, contractor shall be entitled to test and, if necessary, reject the professional competence of these (auxiliary) employees. In this event principal shall appoint competent employees to take their place.
5.3. Any damage and costs resulting from principal having failed to comply with or having failed to comply on time with the provisions stipulated in Art. 5.1 and/or Art. 5.2, as well as any delay arising therefrom, are for Principal's account.
Article 6 - Work
6.1. The work is understood to have been completed once contractor has so informed principal, unless defined otherwise in the agreement.
6.2. Assembly, commissioning and testing of a machine and/or installation are only regarded as being completed, if contractor has so informed principal. Principal shall provide contractor at no cost with all consumables, raw materials, fuels and materials (in consistent quality and quantity) necessary for the tests to be carried out.
6.3. At principal's request, contractor can instruct customer and customer's staff during commissioning in how to correctly use the machine and/or installation. Any further training shall be paid for.
6.4. All contractor tools, such as hoisting equipment, which are used by contractor for the performance of the work, remain contractor's property, unless agreed otherwise in the confirmation of order or agreement.
6.5. These conditions shall apply to agreements for the performance of work and/or provision of services and or any supply of goods, but not to a contract of employment.
6.6. If contractor carries out work under principal's guidance and supervision, contractor's rates valid at the time of performance shall apply. In addition, principal shall reimburse contractor for the costs referred to in article 4.
6.7. contractor is entitled to have work carried out by sub-contractors.
Article 7 - Payment
7.1. Principal shall sign the time sheets completed by contractor for approval. These time sheets constitute the basis for the invoice. Time sheets presented by contractor shall be considered as having been accepted by principal, if there has been no response within ten days from date of submission.
7.2. Contractor is entitled to send an invoice (on a weekly basis) covering the work completed during the week in question and any other costs to be settled.
7.3. Payment of all invoices shall be made without any deductions or offsetting into a bank or giro account to be designated by contractor within 14 days from invoice date. Payment of additional work shall be made in accordance with the agreed method of payment.
7.4. If principal does not pay within the time frame set, it shall be considered to be legally in default and contractor shall be entitled without any notice of default to charge interest as from the due date, namely the statutory rate of interest plus three per cent., as well as any judicial and extrajudicial charges associated with collection, which at least add up to 15% of the outstanding amount. contractor reserves the right to defer its obligations and/or work in case the instalment due date is not met.
Article 8 - Delivery and acceptance
8.1. The delivery time shall take effect on the last of the following dates:
8.1.1. The date of conclusion of the agreement.
8.1.2. The date upon which contractor receives the documents, information, licences, etc. required to implement the agreement.
8.1.3. The date on which the formalities required to implement the agreement are accomplished (before starting the work).
8.1.4. The date on which contractor receives the contractual advance payment to be made prior to the implementation of the agreement.
8.2. The delivery time is based on the working conditions valid at the time of concluding the agreement and on-time delivery of the materials ordered by contractor for the implementation of the agreement. If a delay in the implementation of the agreement, for which contractor is not to blame, is due to a change in the relevant working conditions or to the fact that materials ordered on time for the implementation of the agreement are not delivered in a timely fashion, the delivery time shall be extended insofar as this is necessary.
8.3. In terms of delivery time, the goods are deemed to have been delivered when they are ready for inspection, if inspection at contractor's works has been agreed upon, and in all other cases when they are ready for dispatch, but not until principal has been informed thereof in writing and without prejudice to any assembly/installation obligation on contractor's part.
8.4. Without prejudice to any provisions set forth elsewhere in these terms and conditions with regard to any extension of the delivery time, the delivery time is extended by the delay which contractor is suffering as a result of principal's failure to comply with any obligation ensuing from the agreement or due to any co-operation being requested by principal in relation to the implementation of the agreement.
8.5. With the exception of gross negligence on contractor's part, failure to meet the delivery time does not entitle principal to dissolve the agreement in full or in part. Failure to meet the delivery time - for whatsoever reason - does not entitle principal without the authority of the court to carry out work or have work carried out for the implementation of the agreement.
8.6. A contractual penalty imposed on failure to meet the delivery time shall be deemed to supersede any entitlement on principal's part to claim damages. Such a penalty is not due, if the failure to meet the delivery time is caused by force majeure.
8.7. If contractor has entered into an agreement covering assembly and/or commissioning work, principal shall provide contractor at no cost with all necessary consumables, raw materials, fuels and materials in consistent quality and quantity, and ensure prior to the date the work is started that the foundation complies in all respects with the regulations. Any costs ensuing from failure to comply with these obligations or to do so on time shall be borne by principal. As soon as the goods have been delivered in the agreed manner and put into operation by contractor, insofar as agreed upon, principal shall be deemed to have accepted the goods, whereupon contractor's liability in whatever respect shall cease to exist, with the exception of the guarantee obligations set forth in article 9. The goods shall also be deemed to have been accepted, if principal has failed to provide the aforementioned consumables, raw materials, fuels and/or materials within 3 months after having received a request to do so from contractor, if the foundation does not comply with the regulations, if principal has failed to fulfil its obligations otherwise, or if principal has commissioned the goods. In the event of deficiencies, which do not or hardly affect the intended use, the goods shall be deemed to have been accepted, irrespective of any such deficiency. contractor shall remedy these deficiencies under the guarantee obligation pursuant to article 9.
Article 9 - Guarantee
9.1. Contractor guarantees that the goods delivered are free from faults, defects and omissions and that the work commissioned will be performed properly and expertly. This guarantee also applies to work carried out under the supervision of contractor and together with expert staff made available by principal to contractor, but only when and insofar as this staff complies with the requirements imposed by contractor in respect of professional competence and behaviour, acts fully in compliance with the instructions given by contractor and insofar as any faults made by this staff could have been prevented by contractor in all reasonableness.
This guarantee covers and is limited to a possible repeat performance of the work commissioned free of charge. The guarantee period is 12 months from the time of acceptance.
9.2. Technical assistance and service work shall never imply any obligation other than that to perform the relevant activities in an expert manner and shall not imply any guarantee relating to the overall functioning of the installation. contractor is obliged to remedy any deficiencies in these activities due to faults or negligence on contractor's part by re-providing the relevant service. Liability for direct damage caused by contractor during the provision of technical assistance or performance of service activities is expressly limited to the value of the order or - in the case of orders on a reimbursable cost basis - to the value of the order over a period of 12 months immediately preceding the date on which the damage occurred.
Article 10 - Liability and insurance
10.1. Contractor's liability is limited to the risks and amounts covered by its third-party indemnity insurance. Following acceptance as set forth in article 8, contractor's liability is limited to compliance with the guarantee obligations set forth in article 9 of these terms and conditions.
10.2. Except for gross negligence on contractor's part and the provisions set forth in sub-section 1, all liability on contractor's part for business interruption, other indirect damage and damage ensuing from liability towards any third party is excluded.
10.3. Contractor is therefore not liable for:
10.3.1. Violation of patents, licences or other rights of third parties as a result of the use of information provided by or on behalf of principal;
10.3.2. Any damage or physical injury occurring during assembly, commissioning, testing, maintenance or operational activities performed by principal or by third parties engaged by principal in contravention of contractor's regulations. Principal shall hold contractor fully harmless from any claims relating to such damage or physical injury.
10.3.3. Actions or acts of negligence by staff made available to contractor by or on behalf of principal, even if this staff has to act according to contractor's instructions;
10.3.4. Damage as a result of activities performed by contractor, for which no payment is stipulated.
10.4. Principal shall be liable for any damage to or loss of materials, tools and equipment delivered by contractor to the work site, unless such damage or loss is attributable to activities or actions which were carried out according to contractor's instructions and under contractor's responsibility.
10.5. In the case of technical assistance, contractor shall not be responsible for correct and/or on-time performance of the work by principal.
10.6. Principal is under the obligation to hold contractor harmless from and to indemnify contractor in respect of any claims from third parties for payment of damages, for which contractor is not liable towards principal according to these terms and conditions.
10.7. Principal shall effect a Construction All Risks (CAR) insurance with first-rate coverage, in which contractor and its suppliers, if any, are co-insured, to the exclusion of the right of recourse.
Article 11 - Risk and transfer of ownership
11.1. Immediately after delivery has taken place within the meaning of article 8.3, principal shall bear the risk for all direct and indirect damage which may be inflicted upon or caused by the goods supplied, unless this damage is attributable to gross negligence on contractor's part. If principal, after having received a notice of default, continues to default in accepting the goods supplied, contractor shall be entitled to charge principal with the costs incurred for storing the goods.
11.2. Without prejudice to the provisions set forth in the previous sub-section and in article 8.3, the ownership of the goods supplied is not transferred to principal until all amounts which principal owes to contractor with regard to supplies or work, including any interest and other costs, have been paid to contractor in full
Article 12 - Force Majeure
12.1. Force majeure is understood to be any circumstance beyond the control of the parties and/or any unpredicted circumstance, as a result of which compliance with the agreement can no longer be required in all reasonableness. In the above context, the following events are also considered to be cases of force majeure: any malfunctions, which may or may not be temporary, at the premises of one of the parties, or circumstances preventing normal implementation of the agreement, including but not limited to strikes, insurrection, lock-outs, intervention by a higher authority, state of war and/or siege, fire, natural disasters, epidemics, extremely long periods of frost, extreme weather conditions and similar circumstances or circumstances attributable to sub-contractors and/or suppliers.
Article 13 - Dissolution and suspension
13.1. In the event of there being any impediment to the implementation of the agreement as a result of force majeure, contractor is entitled without intervention by the court either to suspend implementation of the agreement for up to 6 months, or to dissolve the agreement in full or in part, without contractor being under the obligation to pay any damages.
13.2. Both in the event of suspension and dissolution pursuant to sub-section 1, contractor shall be entitled to immediately demand payment of the manufactured and processed raw materials, materials, parts and other goods set aside by contractor for the implementation of the agreement, and that at a price to be fixed in all reasonableness. In the event of dissolution pursuant to sub-section 1, principal shall be under the obligation, after having paid the amount due in accordance with the previous sentence, to accept the relevant goods. Failure to do so shall entitle contractor to have these goods stored at principal's expense and risk or to sell them for principal's account.
13.3. If principal fails to (properly) comply or to comply on time with any obligation ensuing from the agreement concluded with contractor or from an associated agreement, or if there are good grounds to fear that principal is not or will not be in a position to comply with its contractual obligations towards contractor, as well as in the case of bankruptcy, suspension of payments, shutdown, liquidation or (partial) transfer - possibly as security - of the principal's business, which also includes the transfer of part of its receivables, contractor shall be entitled without notification of default or intervention by the court either to suspend implementation of the agreement for up to six months or to dissolve it in full or in part, without contractor being obliged to pay any damages or being bound to any guarantee and without prejudice to the rights to which contractor is entitled.
13.4. In the event of a suspension pursuant to sub-section 3, the price agreed upon shall be immediately payable, subject to deduction of the instalments already settled and the costs saved by contractor as a result of the suspension, and contractor is authorised to have the manufactured and processed raw materials, materials, parts and other goods set aside for the implementation of the agreement stored at principal's expense and risk. In the event of dissolution pursuant to sub-section 3, the price agreed upon - assuming that no previous suspension has taken place - shall be immediately payable, subject to deduction of the instalments already settled and the costs saved by contractor as a result of the dissolution, and principal shall be obliged to pay the aforementioned amount and to accept the relevant goods. Failure to do so shall entitle contractor to have these goods stored at principal's expense and risk or to sell them for principal's account.
13.5. Principal shall not be entitled to retroactively claim dissolution.
Article 14 - Applicate law and disputes
14.1. The agreement and any associated disputes shall be governed by Dutch Law. Any dispute pursuant to or in connection with the agreement shall be settled exclusively by arbitration in accordance with the rules of the Nederlands Arbitrage Instituut ('Netherlands Arbitration Institute').
Article 15 - Miscellaneous
15.1 If and insofar as it is not possible to invoke some stipulation in these general terms and conditions on reasonable and fair grounds or due to its unreasonably incriminating nature, the relevant stipulation will be given as equivalent a meaning in terms of purpose and intent so that it can be invoked.
