Definitions; area of applicability
1.1 In these Conditions the following terms shall have the following meanings:
Supplier: Wave Europe BV
Buyer: the Supplier’s contracting party.
1.2 These Conditions shall apply to agreements – including the acts to bring about the agreements – for the supply of goods and/or the performance of services and/or the realization of a work. They shall also apply to possible supplementary or follow-up agreements. Furthermore they shall apply to all forms of service rendering by (an employee of) the Supplier to (an employee of) the Buyer that is (somewhat) related to the agreements mentioned above in the first sentence (such as for instance the free supply of technical advice).
1.3 These Conditions shall apply exclusively in the sense that specific stipulations and general conditions on the part of the Buyer shall not apply, except if and in so far as they have been accepted by the Supplier in writing and explicitly. Any deviating clause (condition) shall only apply, by the way, to the case for which the deviation has been agreed.
1.4 If a “Used Machine Warranty” is issued in the event of purchase/sale or exchange of a used machine, the Conditions from that Warranty shall also apply. In so far as the Conditions from the Warranty deviate from these Conditions, the Conditions from the Warranty shall take precedence.
Offers; information material
2.1 Unless something else has been indicated explicitly, all the Supplier’s offers, irrespective of the way in which they were made, shall be without engagement in the sense that also after the Buyer’s acceptance of an offer of the Supplier, the Supplier shall be empowered to revoke the offer within three full calendar weeks after the acceptance.
2.2 Unless something else has been indicated explicitly, statements and specifications in connection with dimensions, capacities, performances or results in images, drawings, catalogs, price lists, advertising material and the like shall only be approximations that do not bind the Supplier.
Delivery; obligation to take delivery; time and place of delivery;
transmission of risk and ownership
3.1 The Supplier shall be empowered to make partial deliveries.
3.2 The Buyer shall be obliged to take delivery of goods and services whose delivery has been agreed by the Supplier and this at the time and the place that applies between the parties on the strength of the relevant agreement and/or these Conditions.
3.3 The period for delivery or performance shall be indicative and without engagement and shall start with the conclusion of the agreement or, if payment of an amount to the Supplier before or at the beginning of the performance of the agreement has been agreed, at the time that full payment of this amount has been received. If for the performance of the agreement the Supplier is partly dependent on the cooperation of the Buyer and the Buyer fails in that cooperation for any reason whatsoever, the period for performance shall be extended by so much time as the Supplier reasonably needs to undo the delay caused by the Buyer’s failure. The same shall apply if delays in the performance arise as a result of requests from or on behalf of the Buyer or a government agency for alteration, adjustment or supplementation of what has been agreed. Moreover the extra costs that arise for the Supplier in connection with a delay as mentioned above shall be for account of the Buyer. Bar wilfulness or gross negligence of its higher managerial personnel the Supplier shall never be liable for any damage of any nature and extent whatsoever that results from transgression of times of delivery stated.
3.4 Unless something else has been agreed explicitly, delivery shall be made ex works or ex warehouse of the Supplier.
3.5 The risk for a good to be supplied by the Supplier shall permanently pass to the Buyer at the time of delivery. Bar any explicit written agreement to the contrary, delivery shall be made ex Works (Incoterms 2010) of Wave in Veenendaal. If at the time of delivery applicable between the Supplier and Buyer the Buyer does not take delivery for reasons not to be imputed to the Supplier, the risk shall pass to the Buyer permanently at that time. All the costs in connection with storage and transport that the Supplier must make from the time of delivery mentioned in the preceding sentence shall be entirely for the Buyer’s account.
3.6 Even if the Supplier has undertaken to provide the ownership of a good, the ownership of the good shall remain with the Supplier in spite of the delivery until the Supplier has received from the Buyer full payment of everything that the Buyer owes the Supplier on the strength of goods and services delivered and because of the failure to pay everything that the Buyer owes the Supplier for that reason. The goods subject to a reservation of ownership may only be used by the Buyer within the framework of its ordinary business activities. The Buyer may not, however, alienate or rent out those goods or charge them with security interests or other limited real rights. If the Buyer does not fulfil any obligation of payment, the Supplier shall be empowered to repossess goods that are still subject to a reservation of ownership, without the Buyer’s cooperation. The Supplier shall not be obliged to compensate the Buyer for damage that it suffers in connection with the repossession. The costs of repossession of the goods and their possible conversion into cash shall be entirely for account of the Buyer. Any claim that the Supplier still has on the Buyer shall be reduced by the value that the repossessed goods have for the Supplier in economic transactions. The Supplier need never use a value, however, that is higher than the price agreed with the Buyer for those goods.
4.1 In connection with machines and installations to be supplied the Supplier shall provide the Buyer with information about the construction, operation and treatment of the machines and installations in the form of a manual or instruction book; in the case of a Dutch buyer in the Dutch language in so far as available
4.2 The Buyer shall be entitled to free instruction, in so far as this was agreed in the relevant agreements.
Drawings, programming and the like
5.1 All drawings, images, catalogs, programming (software) and other data, in so far as not being a manual or instruction book as referred to in article 4, that one party makes available to the other party shall continue to belong to the first party and it must be returned on demand of this party. Bar prior written permission the said data may not be copied or handed to third parties for inspection.
Price; adjustment of price
6.1 All the said prices are in Euros. Unless something else has been indicated explicitly, any quoted or agreed price shall not include the VAT or any other government levy payable in connection with the agreement and, in the event that the Supplier handles the transport of goods, the costs in connection with packaging, packing, transport and insurance either. The Supplier may charge the items mentioned in the proceeding sentence in full.
6.2 If for the Supplier the costs for the performance of the agreement become higher because cost factors relevant to the price such as wages, social insurance contributions and other insurance premiums, materials, values of foreign currencies and the like have risen after the time of the last (price) offer, the Supplier shall be entitled to charge those higher costs in addition by means of a price adjustment, at any rate in so far as those costs jointly amount to more than 0.5% of the agreed price.
6.3 If between the Supplier and Buyer a price has been agreed in a different currency than the Euro and that other currency decreases in value in respect of the Euro after the time of the Supplier’s last (price) offer, the Supplier shall be entitled to adapt the price in so far as necessary to make up for the decrease in value until the time of full payment.
7.1 Unless agreed otherwise explicitly, the agreed price must be paid without any discount and set-off within thirty (30) days after the invoice date mentioned on the relevant invoice by means of a transfer to the bank account stated for the purpose by the Supplier. The Supplier shall be entitled to send invoices for partial deliveries as well.
7.2 Unless the Supplier has explicitly agreed to postponement of payment, the Buyer shall not be entitled to postpone payment of the price for the reason that the matters supplied or performed by the Supplier are defective in its opinion.
7.3 If payment is not made in time, the Supplier shall, without prejudice to its other rights from the law or agreement and without any notice of default being required, be entitled to:
a. suspension of the performance of the agreement in respect of which the Buyer defaults in payment, and also of any other agreements with the Buyer;
b. compensation of the damage as a result of the late payment, which compensation shall at any rate consist of the statutory commercial interest (as referred to in sections 6:119a of the Civil Code and 6:120 (2) of the Civil Code). The interest shall be forfeited from the time at which the Buyer fails to make payment until the time at which the Buyer has fully paid everything that it owes the Supplier. Always after the end of a year the interest referred to in the preceding sentence shall also become payable on the interest already forfeited but not yet paid;
c. compensation of all judicial and extrajudicial costs, which last-mentioned costs shall be calculated in conformity with the Decree on Standardization of Extrajudicial Debt Collection Charges.
7.4 If the Supplier has any reason to doubt the Buyer’s fulfilment of its obligation of payment – in which connection the following circumstances on the part of the Buyer will at any rate constitute a sufficient reason for doubt: repeated negligence in payment, attachment at the Buyer’s expense, suspension of payment, bankruptcy, whole or partial cessation of the business – everything that the Buyer owes to the Supplier shall be payable and the Supplier shall be empowered to suspend fulfilment of its obligations until full payment or security – to the Supplier’s satisfaction – has been received for the payment. If full payment or satisfactory security is not provided fourteen (14) calendar days after the request for the purpose, the Supplier shall be empowered to declare the relevant agreement dissolved without prejudice to its right to compensation of damage suffered and/or yet to be suffered.
8.1 For the Supplier force majeure shall be circumstances of a factual, legal or other nature that – whether or not foreseeable – prevent the timely performance of the agreement or make it exceptionally onerous. Regarded as such circumstances shall inter alia be: strikes; occupations; interruptions of production as a result of engine failure, breakdowns in the supply of energy and water, or fire and the like; import, export and production prohibitions and other government measures; transport impediments; failure by ancillary suppliers and auxiliary persons; all this in so far as the Supplier cannot be made any reproach in connection with those circumstances.
8.2 If on the part of the Supplier a circumstance of force majeure occurs, it shall inform the Buyer of this with all due speed. Unless it is beyond doubt that the force majeure situation will take thirty whole working days or more, the obligations whose fulfilment is prevented by force majeure or becomes exceptionally onerous to the Supplier, and the corresponding not yet fulfilled obligations shall be suspended. As soon as it is beyond all doubt that the force majeure situation will last for more than thirty working days, or as soon as the force majeure situation has lasted for more than thirty whole working days, each of the parties shall be empowered to dissolve the agreement, in so far as affected by force majeure, by means of a written statement to be directed to the other party. In so far as the Buyer has already made payments with regard to the dissolved agreement or the dissolved part thereof, it shall receive the amounts paid by it back from the Supplier.
Assembly, installation and/or commissioning
9.1 If the Supplier supplies goods, the Supplier shall only take care of the assembly, installation and/or commissioning if and in so far as that has been agreed explicitly.
9.2 If and in so far as the Supplier takes care of the assembly, installation and commissioning, the following shall apply:
a. The Buyer shall render all cooperation that is necessary to (have others) carry out the assembly, installation and/or commissioning in good time and properly. In good time it shall at any rate take care of: a good and safe access to the workplace, if necessary also outside working hours customary with the Buyer; the presence of permits, in so far as required for the performance of the work; an unloading site and also sufficient storage space, in so far as necessary covered and lockable; the necessary energy, water, fuels and lubricants and, unless something else is agreed, the necessary ladders, scaffolds and other auxiliary material to be designated by the Supplier.
b. The Buyer shall see to it that all operations on which the Supplier must continue to build during the assembly, installation and/or commissioning and for which it has not been agreed that they must be performed by the Supplier – for instance all dismantling operations and all electrician’s and plumber’s operations, all groundwork, masonry, foundation work, carpentry and paintwork and furthermore all other operations of a structural nature – are performed in good time and properly. The Buyer shall consult regularly with the Supplier and provide it with all information necessary for a good attunement of the operations on both sides.
c. The Buyer shall render all cooperation to bring about and maintain the safety in the workplace, in that connection taking account of the applicable statutory and business regulations. In particular it shall take care of measures in connection with fire.
Quality; inspection; repair of defects; service jobs
10.1 The Supplier shall supply goods and perform operations that meet the quality requirements that have been agreed explicitly and the statutory regulations – in particular those in connection with operation, use on the roads and safety – that are in force in the Netherlands at the time of the Supplier’s last offer. If after its last offer but before delivery the Supplier gains knowledge of new relevant statutory regulations in the Netherlands, the Supplier shall report that to the Buyer. In consultation the performance to be rendered by the Supplier shall be adapted. The time of delivery shall be adapted as much as possible and the extra costs resulting from the adaptation for the Supplier shall be for account of the Buyer. In so far as in connection with goods to be supplied or performances to be rendered no quality requirements have been agreed explicitly, the quality of the goods to be supplied and performances to be rendered shall not be below good average quality.
10.2 In so far as a permit is required for the possession and/or use of goods, the Buyer itself shall see to its acquisition
10.3 After delivery of goods or after the Supplier’s communication to the Buyer that it has completed the agreed operations, the Buyer must carefully check the goods and/or operations as soon as possible but at any rate within ten (10) working days after delivery or the Supplier’s communication for completeness and soundness. The Buyer cannot rely on shortages and/or defects – (being any non- compliance with the matters agreed) – that the Buyer could have discovered in the period mentioned in the preceding sentence in the event of a careful inspection or that it did discover but subsequently did not report to the Supplier within twenty-one (21) calendar days after delivery or the Supplier’s communication. All this shall also apply to partial deliveries.
10.4 Shortages or defects which appear during the inspection referred to in 10.3 and that have been reported to the Supplier in time, and also shortages or defects that could not have been discovered during the inspection referred to in 10.3 but emerge as yet within six months after delivery or the communication from the Supplier and are reported to the Supplier in writing within ten (10) calendar days after discovery shall be corrected by the Supplier as soon as possible by a supplementation or – at its option – repair or replacement. In so far as nothing else is provided below in 10.5, this correction shall be made at the Supplier’s expense.
10.5 In connection with correcting shortages and defects the following provisions shall furthermore apply:
a. The Supplier shall exert itself to (have others) carry out the correction as soon as possible in the given circumstances. The Buyer shall render all necessary cooperation for the purpose.
b. The correction shall be made as much as possible in the place to be designated for the purpose by the Supplier. The good shall travel to and from that place at the expense and risk of the Buyer.
c. In the event off correction outside the Netherlands the hotel and traveling expenses of those persons who perform the inspection and carry out the correction shall also be for account of the Buyer.
d. Goods or parts that are released on the occasion of replacement shall become the Supplier’s property automatically.
e. If shortages or defects occur in connection with goods that the Supplier has acquired from third parties or in connection with operations that the Supplier has had third parties perform, the correction – subject to the provisions in 10.3 – shall only be made free of charge in so far as the third-party takes the costs of the correction for its account.
f. The Buyer shall have no right in respect of the Supplier to correction of shortages and defects of which it is plausible that they are the result of normal wear and tear, of injudicious or careless use – of use not in accordance with the purpose – or of not (correctly) following certain directions or instructions of the Supplier.
g. The Buyer’s right in respect of the Supplier to correction of shortages and defects shall cease if the Buyer performs or has a third-party perform the correction without prior permission from the Supplier. h. The occurrence of shortages or defects shall be no ground for suspension of the Buyer’s obligation of payment in respect of the Supplier. If after a written reminder for the purpose the Buyer does not fulfil its obligation of payment this will entail forfeiture of its rights to correction of shortages and defects.
10.6 If the Buyer complains with regard to a shortage of a defect that cannot be corrected or only at disproportionate high costs for the Supplier, the Supplier shall not be obliged to correct the defect or shortage. In that case the price of for the matter supplied shall be reduced, which reduction shall be determined as much as possible on the basis of consultation between the Supplier and Buyer and with observance of the unit prices used when the relevant agreement was concluded or the relevant agreement may be declared dissolved in writing by each of the parties. The Buyer shall only be entitled to declare the relevant agreement dissolved if the failure to correct the shortage or defect is so onerous to it that even in spite of a price reduction any continuation of the relevant agreement cannot be expected of it in reason.
10.7 The occurrence of shortages or defects in respect of which the Supplier has an obligation of correction can – outside the case mentioned in 10.6 – only be a ground for the Buyer’s dissolution of the relevant agreement if, even after a written reminder for the purpose, the Supplier fails to correct the shortage or defect within a period that is reasonable considering all the circumstances.
10.8 In connection with vehicles, machines and installations to be supplied the Buyer shall be entitled to free maintenance jobs, in so far as this has been agreed at the time of conclusion of the relevant agreement.
10.9 Every claim of the Buyer with regard to performance, annulment or dissolution of the agreement shall cease if it has not brought a legal action against the Supplier in a legally valid manner within six (6) months after it has reported a shortage or defect in time in accordance with the provisions in 10.3 and 10.4.
Infringement of industrial/intellectual property rights
11.1 The supplier shall be obliged to supply goods that do not infringe industrial or intellectual property rights of third parties. If a claim is brought against a Buyer by a third-party in connection with infringement of an industrial or intellectual property right, it shall inform the Supplier of this immediately and leave the handling and the settlement of the claim of the third party to the Supplier. If the supplier considers the presence of an infringement of an industrial or intellectual right plausible, the Supplier shall be entitled – at its choice and otherwise in consultation with the Buyer – to remove the infringement by adjustment or replacement of the relevant good or by acquisition of a license or by taking back the relevant good in return for payment of the purchase price received for it. The costs of the handling and settlement of the claim of the third party shall be for account of the Supplier, which shall not be obliged for the rest to pay any compensation.
11.2 If for the performance of an agreement with the Buyer the Supplier makes use of drawings, models, instructions and the like from or on behalf of the Buyer and the third-party brings a claim against the Supplier because of infringement of an industrial or intellectual right in connection with the use of drawings, models, instructions and the like from or on behalf of the Buyer, it shall inform the Buyer about this immediately. The Supplier shall leave the handling and settlement of the claim of the third party to the Buyer, which shall take all its own and the Supplier’s costs relating to the claim of the third party for its account. The Supplier shall be empowered to suspend the performance of the relevant agreement in anticipation of the result of the action of the Buyer in respect of the third party or to dissolve the relevant agreement with immediate effect without being obliged to make compensation.
Liability for damage
12.1 In the event of an attributable failure, the Supplier is obliged to perform its contractual obligations as yet.
12.2 The Supplier’s obligation to pay damages, irrespective of the legal basis, is limited to damage for which the Supplier is insured under an insurance policy taken out by it or on its behalf, but will never exceed the amount paid out under this insurance in the relevant case.
12.3 If, for any reason whatsoever, the Supplier cannot invoke the limitation in paragraph 2 of this article, the obligation to pay damages will be limited to a maximum of 15% of the total assignment amount (excluding VAT). If the agreement comprises parts or partial deliveries, the obligation to pay damages is limited to a maximum of 15% (excluding VAT) of the assignment amount of that part or that partial delivery.
12.4 The following does not qualify for compensation:
a. consequential loss, including business interruption loss, production loss, loss of profit, transport costs and travel and accommodation expenses. The Buyer may insure itself against this damage if possible;
b. damage to goods in or under its care, custody or control. Such damage includes damage caused as a result of or during the performance of the work to goods on which work is being performed or to goods situated in the vicinity of the work site. The Buyer may insure itself against such damage if it so desires;
c. damage caused by the intent or wilful recklessness of agents or non-management employees of the Supplier.
12.5 The Supplier is not liable for damage to material provided by or on behalf of the Buyer where that damage is the result of improper processing.
12.6 The Buyer indemnifies the Supplier from and against all claims by third parties on account of product liability as a result of a defect in a product supplied by the Buyer to a third party and that consisted, entirely or partially, of products and/or materials supplied by the Supplier. The Buyer is obliged to compensate all damage suffered by the Supplier in this respect, including the full costs of defense.
Applicable law; competent court
13.1 Dutch substantive law shall apply to the legal relation(s) between the Supplier and the Buyer. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980, which was implemented for the Netherlands on 1 January 1992 will not apply.
13.2 In so far as coercive provisions of the law do not entail something else and the parties do not as yet agree on arbitration either, the court inside whose district the Supplier has its main establishment, shall have exclusive jurisdiction to take cognizance of disputes that should arise between the Supplier and the Buyer about or related to a legal relationship between them and cannot be solved amicably. The Supplier shall remain empowered, however, to bring a claim against the Buyer at law as well – at the Supplier’s choice – before the court in whose district the main establishment of the Buyer or that branch establishment of the Buyer that is closely involved in the dispute is located.
13.3 If the parties agree on arbitration as yet, this arbitration shall be governed, unless something else is agreed on that occasion, by the then applicable arbitration rules of the Arbitration Board for the Metal Industry and Trade in the Hague.
These General Conditions of Sale and Delivery were translated from the Dutch version. In case of differences in interpretation the Dutch version will prevail.