Terms and conditions

General Terms and Conditions of Sale and Delivery for the technological industry

Issued by the FME Association, deposited at the registry of the Court of The Hague on 13 May 2022 under number 13/2022.
© ME Association/FME Advocaten 2022 (www.fme.nl)

TRANSLATION of the “Algemene verkoop- en leveringsvoorwaarden voor de technologische industrie”. Only the Dutch text of these conditions is authentic. In case of ambiguities or doubts as to the meaning of a certain part or paragraph or differences with the Dutch text, the Dutch text available here https://www.intergas-verwarming.nl/zakelijk/algemene-voorwaarden/ will be decisive.

Art. 1 General

  1. f these General Terms and Conditions form part of offers and agreements of a Supplier to deliver Products and/or perform services for a Customer, all provisions of these General Terms and Conditions shall apply between these parties, insofar as they have not been deviated from by an explicit agreement In Writing between the parties. Any reference by the Customer to its own purchasing conditions or other conditions is expressly rejected by the Supplier.
  2. In these General Terms and Conditions, the following terms are defined as stated below:
    – Product: the performances carried out by the Supplier for the Customer, such as the delivery of Goods, the installation of Goods, whether or not delivered by the Supplier, the contracting of work, maintenance and repair, as well as services such as advice and inspection services;
    – Goods: a tangible object, including any Software contained therein;
    – Software: exclusively the Software included in the delivered Goods;
    – In Writing: by letter, e-mail or any other means agreed by the parties, other than oral agreements;
    – Additional Work: any performance carried out by the Supplier in consultation with the Customer, whether or not recorded In Writing, in addition to the agreement;
    – Price: the Price of the Product in accordance with Art. 4.

Art. 2 Offer

  1. Any offer made by the Supplier is without obligation and can be revoked up to three (3) working days after acceptance.
  2. Each offer is based on the performance of the agreement by the Supplier under normal circumstances and during normal working hours.

Art. 3 Agreement

  1. Without prejudice to Art. 2.1, an agreement is concluded if it is accepted in accordance with the offer. If the acceptance deviates from the offer, the agreement shall only come into effect after the Supplier has expressly accepted these deviations.
  2. Information contained in product documentation, illustrations, drawings, measurement and weight specifications, etc. shall be binding only if and insofar as it is expressly included in an offer or order confirmation issued by the Supplier or in a contract signed by the parties.
  3. Oral promises/agreements shall be binding on the Supplier only insofar as they are made by an employee of the Supplier authorised to represent it or are confirmed In Writing by such an employee.

Art. 4 Price

  1. Unless otherwise agreed In Writing, the agreed Price is exclusive of value added tax and other government charges on the sale and delivery, and is based on delivery Ex Works in accordance with the Incoterms applicable on the date of the offer. “Works” shall mean the business site of the Supplier, as designated by it.
  2. If after the date of conclusion of the agreement one or more of the cost price factors increases – even if this is due to foreseeable circumstances – the Supplier is entitled to increase the Price accordingly.
  3. The Supplier may charge Additional Work separately, as soon as the amount to be charged is known to it. For the calculation of additional work, paragraphs 1 and 2 shall apply mutatis mutandis.
  4. Costs of loading, unloading and the transport of raw materials, semi-finished products, models, tools and other Goods made available by the Customer are not included in the Price.
  5. If it has been agreed that the Supplier shall install the Product, the Price shall be calculated inclusive of installation, except for the costs mentioned in Art. 7.3 and 7.5.

Art. 5 Intellectual property/confidentiality

  1. All intellectual property rights to the Product, its design and the drawings, calculations, descriptions, technical documents, models, tools and the like made for the design, production and use of the Product shall be vested in the Supplier or, as the case may be, in a third party that has granted the Supplier a licence for the use of these rights. This shall also apply if these have been developed specifically for the Customer, unless it has agreed otherwise In Writing. The Customer acquires a non-exclusive, transferable right to use these intellectual property rights, without time limitation, but only for the delivered Product and subject to any restrictions contained in underlying third-party licences. The Supplier is not obliged to provide the Customer with the source code or Software updates.
  2. Technical, commercial and financial information and information marked confidential or which by its nature should be considered to be confidential, disclosed by one party In Writing or orally to the other party, shall be treated confidentially by the other party. The information will therefore not without the consent In Writing of the other party be used by one party for a purpose other than that for which it was provided. The information may not be reproduced or transferred, communicated or disclosed to any third party.

Art. 6 Delivery time

  1. If the parties have agreed on a specific period of time for delivery, this period shall start as soon as the agreement has been concluded and all conditions which must be fulfilled by the Customer before the Supplier performs its obligations, such as provision to the Supplier of necessary documents and data, the obtaining of licences, the performance of necessary formalities and payment of an amount due in advance, have been fulfilled. If instead of a period of time, a specific delivery date, week or month has been agreed, this shall be extended in time in a reasonable manner.
  2. The Product shall be deemed delivered for the purpose of the delivery time when, if acceptance tests at the business site of the Supplier have been agreed to, it is ready for such tests, and in other cases when the Goods are ready for dispatch and the Customer has been notified thereof In Writing and, in the case of performance other than the delivery of Goods, when performance has been effected.
  3. The delivery time is based on the working conditions applicable at the time of conclusion of the agreement and on timely delivery of the Goods and/or services ordered by the Supplier for the execution of the work. If a delay occurs through no fault of the Supplier, which is due to a change in the said working conditions or due to the fact that goods and/or services ordered in time for the execution of the work are not delivered in time, the delivery time shall be extended insofar as necessary.
  4. If the performance of the agreement is delayed due to an act or omission by the Customer or due to circumstances attributable to the Customer, the Supplier may extend the delivery time by a period that is necessary considering all circumstances. This shall also apply if the delay only occurs after the agreed delivery time.
  5. Exceeding the delivery time shall not give the Customer the right to terminate the agreement, in whole or in part, or to compensation. However, if the delivery time is exceeded by 16 weeks or will exceed 16 weeks, according to the notification of the Supplier, the Customer may terminate the agreement by means of a notification In Writing to the Supplier. The Customer is then entitled, insofar as applicable, to reimbursement of the part of the Price already paid and to compensation for the damage suffered by it, up to a maximum of fifteen (15) percent of the Price. If partial delivery has already taken place, the agreement can after 16 weeks only be terminated in part, namely for the part not yet delivered, unless the part already delivered is not independently usable by the Customer. In the event of partial termination, the Customer is entitled, insofar as applicable, to reimbursement of that part of the Price which relates to the part not delivered and to compensation. For the calculation of this compensation, the aforementioned maximum of 15% shall in that case be applied over the part of the Price that relates to the part not delivered. If the delivery time is exceeded as a result of force majeure, Art. 13 applies.
  6. If the Customer remains in default of taking possession of the Product after being served with a notice of default, the Supplier shall be entitled to charge the Customer for the costs and damage arising therefrom, without prejudice to the rights of the Supplier pursuant to Art. 14. The Customer shall then also be obliged to pay the Price as if delivery had taken place according to the agreed delivery time.

Art. 7 Installation

  1. If it is agreed that the Supplier will install the Goods, the Customer is responsible for the correct implementation and timely availability of all devices, facilities and conditions necessary for installation of the Goods and the proper functioning of the Goods in the installed state.
  2. The Customer shall in any case ensure at its own expense and risk that:
    a) the personnel of the Supplier are able to commence work according to the agreed time schedule and are able to work during normal working hours. Insofar as the Supplier deems this necessary, work may also be performed outside normal working hours, provided that this is reported to the Customer In Writing within a reasonable period of time;
    b) it informs the Supplier about all safety regulations applicable at the place of installation in good time and In Writing before commencement of installation;
    c) installation can take place in a healthy and safe environment;
    d) all necessary safety measures are taken before commencing installation and are maintained during installation;
    e) the personnel of the Supplier are able to make use of good sanitary facilities;
    f) all necessary auxiliary persons, cranes, lifting and hoisting gear, transport and auxiliary equipment, machines, operating materials (such as fuels, oils, greases, gas, water, electricity, steam, compressed air, heating and lighting) and the measuring and testing equipment that are usual for the business of the Customer are available in good time at the place of installation;
    g) sufficient office space is available at the place of installation for the Supplier;
    h) proper and adequately secured digital infrastructure and internet facilities are available, if required;
    i) sufficient storage space is available to protect against theft, loss and damage of the tools and equipment intended for installation and of the personal possessions of the personnel of the Supplier;
    j) the access roads to the installation site are suitable for the necessary transport of the Goods to be installed and the operating equipment of the Supplier.
  3. Damage and costs that arise for the Supplier and/or the Customer because one of the obligations referred to in this article has not been fulfilled or has not been fulfilled in good time, shall be borne by the Customer.
  4. If the Supplier provides help and assistance – of whatever kind – with installation without being obliged to do so, this shall be at the risk of the Customer.
  5. Costs incurred by the Supplier due to unworkable weather conditions shall be borne by the Customer.

Art. 8 Inspection and acceptance tests

  1. The Customer shall inspect the Product no later than seven (7) days after delivery as referred to in Art. 6.2. If installation has been agreed, the Customer shall inspect its proper implementation no later than 5 days after installation. If the applicable period of time has expired without a specified notification of legitimate complaints In Writing, the Product shall be deemed to have been accepted.
  2. If acceptance tests have been agreed, after delivery as referred to in Art. 6.2, the Customer shall give the Supplier the opportunity to make the necessary preparations and to implement such changes as the Supplier deems necessary. The acceptance tests shall be held in the presence of the Customer immediately after the request of the Supplier to that effect. The costs of acceptance tests shall be borne by the Customer. However, the Supplier shall bear the costs of its own personnel and its other representatives. If the acceptance tests have been carried out without a justified complaint or if the Customer does not fulfil the aforementioned obligations, the Product is deemed to have been accepted.
  3. For the acceptance tests and the preparations and changes referred to in paragraph 2, the Customer shall make the necessary facilities, support and materials, including those referred to in Art. 7.2f, and representative samples of any materials to be processed available to the Supplier in sufficient quantities, in good time and free of charge at the place specified by the Supplier. If the Customer does not comply with this, the Product shall be deemed to have been accepted.
  4. The Supplier shall prepare a report of the acceptance tests which shall be sent to the Customer. If the Customer was not represented at the tests, after having been invited to do so by the Supplier in good time and In Writing, the test report shall be deemed to be a correct representation.
  5. If the acceptance tests show that the Product does not conform to the agreement, the Supplier shall remedy the defects as soon as possible. If the Customer so requests In Writing, new acceptance tests shall be carried out subsequently in accordance with paragraphs 2 to 4.
  6. In the event of minor defects that do not affect the proper functioning of the Product, the Product shall be deemed to be accepted regardless of such defects. The Supplier shall remedy these defects as soon as possible.
  7. The Customer is not authorised to use the Product or any part thereof before acceptance. If the Customer does so, without receiving permission from the Supplier In Writing, the Product shall be deemed to have been accepted.
  8. Without prejudice to Art. 11, the acceptance according to the preceding paragraphs excludes any claim of the Customer based on a breach of the delivery obligation of the Supplier.

Art. 9 Risk transfer and retention of title

  1. As soon as the Product is deemed delivered within the meaning of Art. 6.2, the Customer shall bear the risk for all damage that may occur to or by this Product, except to the extent that the damage is due to intent or deliberate recklessness on the part of the management personnel of the Supplier.
  2. Ownership of the delivered Goods is transferred to the Customer as soon as all amounts owed by the Customer to the Supplier for deliveries and related work, including interest and costs, are paid to the Supplier in full. In the event of late payment, the Supplier may take back the delivered Goods.
  3. The Supplier shall have unhindered access to the delivered Goods when exercising the retention of title, in accordance with paragraph 2. The Customer shall then provide the Supplier with all cooperation to take back the Goods, including dismantling.

Art. 10 Payment

  1. Unless otherwise agreed In Writing, payment of the Price shall take place within thirty (30) days of the invoice date. Invoicing takes place in the following two (2) instalments:
    – 1/3 of the Price after the conclusion of the agreement;
    – 2/3 of the Price after delivery, in accordance with Art. 6.2.
  2. Payment of Additional Work shall take place no later than seven (7) days after this has been invoiced to the Customer.
  3. All payments shall be made without deduction, suspension or set-off in the manner to be determined by the Supplier.
  4. If the Customer does not pay in time, it shall be in default by operation of law and the Supplier shall have the right, without notice of default being required, to charge interest from the due date at a rate three (3) points above the statutory interest rate for commercial agreements applicable in the Netherlands, as referred to in Art. 6:119a and Art. 6:120(2) of the Dutch Civil Code (Burgerlijk Wetboek), as well as all judicial and extrajudicial costs.

Art. 11 Defects in the Product

  1. The Product must comply with the agreement. The Supplier is obliged to eliminate any deviations thereof, hereinafter referred to as: “defects”, resulting from incorrect or faulty design or materials or poor workmanship, in accordance with this Art. 11. Unless otherwise agreed, any infringement of the intellectual property rights of a third party that are valid in the Netherlands shall also be regarded as a defect. The obligation to remedy the defect shall apply exclusively to defects in the Product that are not noticeable upon inspection and, if agreed, acceptance tests, and which the Customer proves to have occurred within six (6) months after delivery under Art. 6.2.
  2. In the case of installation of Goods delivered by the Supplier, the period of six (6) months mentioned in paragraph 1 applies to both the delivered Goods and the installation of the Goods, and starts on the day that installation is completed by the Supplier. This period ends in any case twelve (12) months after delivery of the Goods in accordance with Art. 6.2.
  3. Defects in delivered Good shall be remedied by the Supplier by repair or replacement of the defective part, whether or not at the business premises of the Supplier or by sending a repaired part or a part for replacement, always at the discretion of the Supplier. After the remedy of the defect, the Supplier is equally obliged to remedy defects in the repaired or replaced part for a period of six (6) months. Any liability for defects in the delivered Goods shall lapse in any case twelve (12) months after delivery thereof in accordance with Art.6.2 or, in case of the applicability of paragraph 2, eighteen (18) months after such delivery.
  4. Defects in the installation of Goods delivered by the Supplier shall be remedied by the Supplier by carrying out repair work. After the remedy of the defect, the Supplier shall be equally liable for defects in the remedial works for a period of six (6) months. Any liability for defects therein lapses in any case eighteen (18) months after the delivery of the Goods in accordance with Art. 6.2.
  5. Defects in maintenance, repairs (if not carried out pursuant to paragraphs 3 or 4), installation of Goods delivered to the Customer by a third party, overhaul, contracting work and similar work shall be remedied by the Supplier by performing the work again insofar as it is defective. After the work is performed again, the Supplier shall be liable for defects in the remedial work for a period of six (6) months. Any liability shall lapse in any case twelve (12) months after delivery in accordance with Art. 6.2.
  6. Defects due to infringement of intellectual property rights shall, at the option of the Supplier, be remedied by the Supplier by:
    – acquisition of the right of use for the Customer;
    – modification of the Goods in such a way that the infringement no longer exists, or
    – replacement of the Goods by other Goods that do not infringe intellectual property rights.
    The Supplier shall for a period of six (6) months after such modification or replacement be liable for any defects therein in accordance with the conditions referred to in this Article. Any liability of the Supplier for defects therein shall in any case lapse twelve (12) months after delivery of the Goods in accordance with Art. 6.2 or, in case of the applicability of paragraph 2, eighteen (18) months after such delivery.
  7. Transport costs and additional costs of disassembly and reinstallation incurred by the Supplier in eliminating defects shall be borne by the Customer.
  8. The Supplier is not liable for defects in inspections, consultancy and similar services.
  9. The Supplier is not liable for defects that occur in or are wholly or partially the result of:
    a) non-observance of operating and maintenance instructions or use other than the intended normal use;
    b) normal wear and tear;
    c) installation, disassembly, repair or modification by the Customer or by third parties;
    d) the application of a government regulation;
    e) materials and Goods already used, applied in consultation with the Customer;
    f) materials and Goods which have been provided by or on behalf of the Customer, whether or not for processing purposes;
    g) materials, Goods, design, construction or working method applied on the express instructions of the Customer;
    h) parts procured by the Supplier from third parties, including Software, insofar as the third party is not liable to the Supplier for this.
    Furthermore, the Supplier is not liable for infringement of intellectual property rights resulting from the fact that:
    i) the Product is used outside the Netherlands;
    j) the Product is used in a manner other than agreed;
    k) the Product is used in combination with equipment or Software not supplied by the Supplier.
  10. If the Customer does not fulfil, does not fulfil properly or does not fulfil on time any obligation arising for it from any agreement concluded with the Supplier, the Supplier shall not be obliged to remedy any defects. If the Customer proceeds to dismantle, repair or perform other work on the Product, or has such work performed, without receiving the prior consent of the Supplier In Writing, the obligation of the Supplier to remedy defects will lapse.
  11. Defects must be reported to the Supplier In Writing as soon as possible after their discovery, but no later than fourteen (14) days after the expiry of the applicable liability period. If these periods of time are exceeded, all claims concerning such defects shall lapse. Claims must be brought in court within one (1) year of the said report, on penalty of forfeiture of all rights.
  12. If the Customer has made said report and no defect is found for which the Supplier is liable, the Supplier shall be entitled to reimbursement of the costs incurred as a result of the report.
  13. If the Supplier replaces parts when remedying defects, the replaced parts become the property of the Supplier.
  14. If the Customer claims that the Supplier does not fulfil an obligation referred to in this Article, the Customer shall continue to be obliged to fulfil the obligations arising for it from any agreement concluded with the Supplier.
  15. If the Supplier has not remedied the defect within a reasonable period of time, the Customer may set a final, reasonable period of time for doing so by means of a notification In Writing. If the Supplier does not perform its obligations within this final period, the Customer may, at the expense of the Supplier, have the defect remedied by itself or by a third party, provided that the Customer or the third party has the necessary expertise. If the defect is thus successfully remedied, the Supplier is discharged from all liability for the defect by reimbursement of the reasonable costs incurred by the Customer. These costs shall not exceed fifteen (15) percent of the Price of the Product.
  16. If the defect is not remedied in accordance with paragraph 15:
    a) the Customer is entitled to a discount on the Price in proportion to the reduction in value of the Product. This discount shall not exceed fifteen (15) percent of the Price, or
    b) if the defect is so serious as to significantly deprive it of the benefit of the agreement for the Product or a substantial part of the Product, the Customer shall be entitled to terminate the agreement for the Product or the substantial part of the Product by sending a notification to the Supplier In Writing. The Customer is then entitled to a refund of the Price paid for the part of the agreement that is terminated. In addition, the Customer shall be entitled to compensation up to a maximum of fifteen (15) percent of that part of the Price that relates to the part of the Product in respect of which the agreement is terminated.

Art. 12 Liability

  1. Unless there is intent or deliberate recklessness on the part of the management personnel of the Supplier and subject to the applicability of Art. 6.5 and Art. 11, all liability of the Supplier is excluded, regardless of the legal basis. Therefore, the Supplier is not liable for damage caused by, among other things:
    – non-delivery;
    – liability towards third parties;
    – any unlawful acts or omissions by (personnel and auxiliary persons of) the Supplier;
    – infringement of intellectual property rights, licences and other rights of third parties;
    – damage to or loss of, for any reason whatsoever, raw materials, semi-finished products, models, tools and other Goods made available by the Customer;
    – loss or corruption of data;
    – loss of production and reduction of usability;
    – loss of contracts and customers.
    Furthermore, the Supplier is not liable for loss of profit and any consequential and indirect losses whatsoever.
  2. The Customer is obliged to indemnify the Supplier against and to compensate the Supplier for all third-party claims for damage in connection with the performance of the agreement.

Art. 13 Force majeure

  1. In these general conditions, force majeure is understood to be any circumstance beyond the control of the Supplier – even if this was foreseeable at the time the agreement was concluded – which permanently or temporarily prevents the Supplier from fulfilling the agreement or makes it unreasonably onerous and, insofar as not already included, war, danger of war, civil war, riots, strikes, lockouts, transport difficulties, import and export restrictions, government measures, fire, terrorism, epidemics and pandemics, natural disasters, extreme weather conditions, limited availability of energy, power failure, failure of the internet, computer network and telecommunication facilities, cybercrime and defects and delays in the delivery by subcontractors as a result of the circumstances referred to in this paragraph.
  2. If the Supplier, due to force majeure, is temporarily unable to perform the agreement or can only do so at unreasonably onerous conditions, the Supplier shall be entitled to suspend performance of the agreement. After six (6) months, if the force majeure situation still persists, either party shall be entitled to terminate the agreement, in whole or in part. Either party shall furthermore be entitled to terminate the agreement, in whole or in part, if, after the force majeure situation has arisen, it has become clear that performance of the agreement by the Supplier will be impossible or unreasonably onerous for longer than six (6) months.
  3. In the event of suspension and termination pursuant to paragraph 2, the Supplier shall not be obliged to pay compensation. The Supplier is then entitled to demand payment of the costs it has incurred for the raw materials, materials, parts and other Goods purchased, reserved, processed and manufactured in performance of the agreement. In the event of termination pursuant to paragraph 2, the Customer is obliged to take delivery of the said Goods after payment of the said costs. If the Customer is in default, the Supplier is authorised to store these Goods at the expense and risk of the Customer or to sell or destroy them at the expense of the Customer.

Art. 14 Suspension and termination

  1. If there is good reason to fear that the Customer is or will not be able or willing to fulfil its obligations and in the event of bankruptcy, suspension of payments, shutting down, liquidation or total or partial transfer of the business of the Customer, the Supplier shall be entitled to demand adequate security for all contractual obligations of the Customer, whether due or not, and to suspend performance of the agreement in the meantime. In the absence of this security within a reasonable period set by the Supplier, the Supplier shall be entitled to terminate the agreement, in whole or in part. The Supplier has these rights in addition to its other rights under the law, the agreement and these General Terms and Conditions.
  2. If the Customer does not fulfil an obligation arising from an agreement with the Supplier or does not do so in good time or properly, the Supplier is entitled to suspend performance of the agreement and/or to terminate the agreement.
  3. In the event of suspension and termination of the agreement in accordance with paragraphs 1 and 2, the Supplier is entitled to store the raw materials, materials, parts and other Goods purchased, reserved, processed and manufactured by it for the performance of the agreement at the expense and risk of the Customer. The Supplier may also choose to sell or destroy these at the expense of the Customer. In the event of suspension and termination in accordance with paragraphs 1 and 2, the Supplier shall be entitled to full compensation, but shall not be obliged to pay compensation.
  4. If the Customer terminates the agreement without obtaining the prior consent of the Supplier In Writing, it will be obliged to pay the full Price, without notice of default, with deduction of the costs saved by the Supplier.

Art. 15 Disputes

All disputes based on the agreement and further agreements arising therefrom shall be resolved by the competent Dutch court in the district of the Supplier, unless mandatory law provides otherwise.

Art. 16 Applicable law

All agreements to which these General Terms and Conditions apply shall be governed by the law applicable in the Netherlands, to the exclusion of conflict of law rules of international private law. The applicability of the Vienna Convention on Contracts for the International Sale of Goods (Weens Koopverdrag) is excluded.

Terms and Conditions of Purchase

These Terms and Conditions of Purchase are applicable to all proposals and orders of Intergas Verwarming B.V., and/or its affiliates as specified in the purchase order and/or agreement, and all the agreements Intergas Verwarming B.V. enters into, and further agreements in that connection, (together referred to as “Purchase Order”) and are without prejudice to any other rights granted to Intergas Verwarming B.V. under the laws of the Netherlands. In these Terms and Conditions of Purchase, Intergas Verwarming B.V. is referred to as “Buyer”, the other contracting party is referred to as “Seller”. The term “Products” refers to the products, goods, supplies and/or equipment to be provided to Buyer by Seller as specified on the Purchase Order.
Unless agreed otherwise in writing, all contracts entered into by Buyer shall be for an indefinite period and Buyer and Seller shall at all times be entitled –without judicial intervention being required- to terminate any agreement at its discretion and without the need to give a reason by registered mail by giving the other party notice of its election to terminate the agreement on six (6) months’ notice.

Art. 1 Acceptance

ANY OF THE FOLLOWING ACTS BY SELLER SHALL CONSTITUTE ACCEPTANCE OF THE
PURCHASE ORDER AND ALL OF ITS TERMS AND CONDITIONS: SIGNING AND RETURNING A COPY OF THE PURCHASE ORDER; DELIVERY OF ANY OF THE GOODS OR PERFORMANCE OF ANY OF THE SERVICES ORDERED; COMMENCEMENT OF PERFORMANCE; OR RETURNING ANY FORM OF ACKNOWLEDGEMENT. ACCEPTANCE OF THE PURCHASE ORDER IS LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN AND THE PURCHASE ORDER CAN ONLY BE ACCEPTED ON THESE TERMS. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN SELLER’S ACKNOWLEDGEMENT, GENERAL TERMS AND CONDITIONS OF SALE, INVOICE, ANY PRIOR PROPOSAL OR IN ANY OTHER SELLER DOCUMENT ARE HEREBY REJECTED AND SHALL NOT BE BINDING ON THE BUYER.
The Buyer’s Purchase Order and these Terms and Conditions constitute the entire agreement between the Seller and Buyer with respect to its subject matter. Any additional or different terms or conditions by Seller do not operate as a rejection of the Purchase Order (unless such variances are in the terms of the description, specifications, quantity, price or delivery schedule of the Products and/or services), but will be deemed a material alteration thereof, and the Purchase Order shall be deemed accepted by the Seller without any additional or different terms. To the extent of any conflict between these Terms and Conditions and any written supply agreement that has been negotiated and executed by authorized representatives of Buyer and Seller that governs the Products and/or services referenced herein, the relevant terms contained in said supply agreement shall take precedence.

Art. 2 Prices

The prices contained in the Purchase Order shall be considered as maximum prices not subject to upward revision and include all insurance, import fees, customs duties and taxes. If prices are not stated, Seller shall offer its lowest prices, which shall be subject to written acceptance by Buyer. Buyer will pay approved invoices within ninety (90) days after receipt. All invoices will be paid in the currency set forth in the Purchase Order. Seller warrants that the prices charged for the Products and/or services covered by the Purchase Order will be as low as the lowest prices charged by Seller to any other customers purchasing similar products and/or services. Prices of any Products and/or services, delivered or undelivered, under the Purchase Order are not subject to increase by Seller in the event of any governmental action or any cause (even beyond Seller’s control) affecting Seller’s cost or expenses after the date of the Purchase Order, including but not limited to duties, taxes, other governmental charges, assessments, freight and insurance costs and fluctuations in exchange rates.

Art. 3 Taxes

No federal, state or local taxes on the Products and/or services furnished hereunder or on the sale, purchase, transportation, use or possession thereof shall be included in any invoice delivered to Buyer. If Buyer furnishes Seller an exemption certificate, or any similar proof of exemption with respect to any federal, state or local tax included in any such invoice, such invoice shall be adjusted to eliminate such tax.

Art. 4 Quantity

From time to time, Buyer may provide Seller with volume and/or quantity forecasts or projections for Buyer’s Product needs. Seller acknowledges that the projections, unlike a Purchase Order, are for planning purposes only and are not binding on Buyer, unless explicitly agreed upon otherwise in writing, Seller acknowledges and agrees that Buyer makes no representation, warranty or guaranty of any kind or nature whatsoever as to the accuracy of the projections.

Art. 5 Delivery

Unless otherwise specified in the Purchase Order, Seller shall deliver the Products to Buyer DDP (Incoterms 2020) at the shipping address designated in the Purchase Order, or in a blanket Purchase Order, in scheduling agreements, manifests or other similar releases that are transmitted to Seller from time to time during the term of the Purchase Order, and after consideration by Buyer of agreed upon lead times. If applicable, Seller shall comply with the shipping instructions and delivery schedule for the Purchase Order, including any amendment or supplement to it, specified by Buyer. Buyer shall have the option either to refuse acceptance of any shipment made in advance of the delivery schedule or to accept such shipment but require Seller to defer submission of invoices thereon until such time as the shipment was due to be made in compliance with the delivery schedule set forth in the Purchase Order. Time is of the essence. Deliveries are to be made only in the quantities and at the times specified in the Purchase Order.

Art. 6 Packaging

Products must be delivered in standard commercial containers acceptable by carrier for safe transportation at the lowest rate at point of delivery. No charges shall be allowed for drayage, blocking or packaging except as otherwise specified herein. Seller shall assume and pay all extra costs and/or expenses accruing on account of improper packaging.

Art. 7 Marking

Packages must be marked with shipper’s name and Buyer’s purchase order number and must contain two copies of the complete list of Products contained therein. If more than one package is shipped, each one must be numbered. The number of the package must be identified with the contents as shown on the shipping or packaging list. Any extra expense due to dunnage, waiting time, and the like resulting from the lack of the above information shall be deducted from Buyer’s payment of Seller’s invoices.

Art. 8 Modification

The Purchase Order may not be modified or changed in any manner, except by an instrument in writing signed by an authorized representative of Buyer; provided, however, that Buyer reserves the right to issue written modifications, which the Seller agrees to accept, changing drawings, specifications, sub-suppliers, samples or descriptions of the Product and/or the time or rate of delivery of Products and/or services covered by the Purchase Order. In the event such acceptance by Seller of Buyer’s written modification results in an increase or decrease in cost of the Products and/or services remaining to be delivered, Buyer and Seller agree to negotiate an equitable adjustment of the prices specified herein.

Art. 9 Warranty

Seller warrants with respect to Products purchased and sold under the Purchase Order that: (a) it has good title to the Products, (b) the Products are free from liens, security interests and encumbrances of any kind, (c) the Products conform to the specifications, drawings and samples approved by Buyer in connection with the Purchase Order, (d) the Products are fit for the purpose for which Buyer purchased them, (e) the Products are merchantable, (f) the Products are free of defects in design, materials and workmanship and (g) the Products have been manufactured in a good and workmanlike manner using the highest quality material in conformity with the best standard practices. This warranty shall survive any inspection, acceptance or return of any such Products and shall run to Buyer, its successors, assigns, customers and users of its Products. If Products delivered pursuant to the Purchase Order are found within the latest of the following: (i) sixty (60) months after acceptance; (ii) the warranty period provided by applicable law; or (iii) last for a period equal to the warranty period that Buyer offers in connection with the finished good manufactured by Buyer and which it is incorporated into, not to be as warranted, Buyer may, in addition to any other rights Buyer may have, return such Products to Seller, at Seller’s expense, for repair, replacement, or refund of price, as Buyer may elect. Any Products repaired or furnished in replacement shall be subject to all the terms and conditions hereof to the same extent as if initially furnished hereunder. Seller further warrants that all services will be performed in a competent and professional manner, in accordance with the highest standards and best practices in the industry, and in accordance with the specifications agreed or approved by Buyer. Any attempt by Seller to limit, disclaim or restrict any such warranties or remedies by acknowledgement or otherwise shall be null, void and ineffective.

Art. 10 Inspection of material

Seller agrees to inspect all Products covered by the Purchase Order and, when requested by Buyer, to include an inspection certificate with each shipment. Acceptance of Products and/or services shall be subject to Buyer’s inspection and approval after arrival notwithstanding any prior inspection or payment. Payment for the Products and/or services does not constitute acceptance thereof. Buyer has the right to inspect all Products and services and to reject any or all that are in Buyer’s judgment defective or nonconforming. If any Products covered by the Purchase Order are defective or otherwise not in conformity with the requirements of the Purchase Order, Buyer may, by written notice to Seller, elect to: (a) rescind the Purchase Order as to such Products, (b) accept Products at an equitable reduction in price, or (c) reject such Products and require the delivery of replacements. Deliveries of replacements shall be accompanied by a written notice specifying that such Products are replacements. If Seller fails to deliver required replacements promptly, Buyer may (i) purchase from other suppliers, replace or correct such Products and charge Seller all costs and expenses occasioned Buyer thereby, and/or (ii) terminate the Purchase Order for default. No inspection (including source inspection), test, approval (including design approval) or acceptance of Products ordered shall relieve Seller from responsibility for defects or other failures to meet the requirements of the Purchase Order. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Rights granted to Buyer herein are in addition to any other rights or remedies provided at law or in equity. Seller agrees to pay Buyer’s expenses, including demurrage, handling and storage charges and freight both ways, with respect to non-conforming Products. Upon identification and notification of defective Products or nonconforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Seller, together with shipping, processing and related costs, if applicable. Within one (1) week of the shipment of the defective good, Seller shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent reoccurrence.

Art. 11 Delays

Whenever the timely performance of the Purchase Order may be delayed, or is delayed, Seller shall immediately notify Buyer in writing of all relevant information with respect to such delay. In case of Seller’s delays, Seller shall be responsible for expedited shipping at its expense.

Art. 12 Title; Risk of loss

Seller shall bear all risk of loss and damage to Products covered by the Purchase Order until, and title shall pass to Buyer only on Buyer’s receipt at the destination specified on the Purchase Order.

Art. 13 Design and invention rights

If the Purchase Order has as one of its purposes design, experimental, developmental or research work, Seller agrees to communicate promptly to Buyer full details of any design or invention (whether or not patentable) conceived or first reduced to practice by Seller or any of its employees in connection with the performance of the Purchase Order. Upon Buyer’s request, Seller shall for Buyer’s exclusive benefit assign or cause to be assigned to Buyer without compensation all right, title and interest of Seller or its employees in and to each such design or invention, and perform or cause to be performed all acts (at Buyer’s expense) and execute or cause to be executed all papers that are necessary to vest in Buyer full right, title and interest therein, including the patenting thereof; any and all such rights shall fall within the scope of article 14 hereafter.

Art. 14 Confidentiality

Any specifications, drawings, sketches, models, samples, tools, technical information, methods, processes, techniques, shop practices, plans, know-how, trade secrets, or data, written, oral or otherwise (collectively, the “Information”) furnished to Seller, or that Seller is exposed to, under, or in contemplation of, the Purchase Order remain Buyer’s property. All copies of such Information, in written, graphic or other tangible form, must be immediately returned to Buyer upon its request. The Information shall be kept confidential by Seller, shall be used only in the fulfillment of the Purchase Order, or in performing Seller’s obligations under the Agreement, and may be disclosed or used for other purposes only upon such terms as may be agreed upon between Buyer and Seller in writing.

Art. 15 Compliance with laws

Seller certifies that the Products to be furnished or the services to be rendered hereunder are in compliance with all applicable laws, including rules, regulations, and standards, that relate to the manufacture, labeling, transport, import, and export, including laws relating to environmental matters, hazardous materials, hiring, wages, hours and conditions of employment, discrimination, and occupational health or safety. Seller further certifies that its price to Buyer hereunder is proper under all applicable laws, rules and regulations and is in compliance with any current pricing policy or law directed at controlling or stabilizing prices.

Art. 16 Indemnification

Seller shall defend, indemnify and hold harmless Buyer and Buyer’s affiliates, and each of their employees, officers, directors, agents, successors, assigns, customers and end-users of its products, from and against all losses, expenses, damages, costs, liabilities, claims, settlements, awards and judgments based on a claim (a) that any good or service furnished by Seller, as well as any system, device or process incorporating or resulting from the use thereof, constitutes an infringement or misappropriation of any patent, trademark, copyright, trade secret or other intellectual property right; and (b) arising out of, as a result of or in connection with: (i) Seller’s acts and omissions in the performance of the Purchase Order, or (ii) any defect in design, materials, workmanship or quality of the Products and/or services, or (iii) Seller’s negligence or willful misconduct or (iv) any breach of any express or implied warranty, or (v) Seller’s violation of any federal, state or local law, executive order, rule or regulation, or (vi) to the extent of Seller’s responsibility, any recall campaign, service action or other corrective action of the Products, and/or the products sold by Buyer which incorporate the Products. Seller shall maintain commercial general liability insurance (including products liability/completed operations coverage) with adequate limits satisfactory to Buyer and shall maintain proper Workmen’s Compensation and Employer’s Liability insurance covering all employees engaged in the performance of the Purchase Order, and, upon Buyer’s request, shall furnish to Buyer appropriate evidence of such insurance.

Art. 17 Limitation

In no event shall Buyer’s aggregate liability for any loss or damage arising out of or in connection with or resulting from the Purchase Order exceed the price allocable to the Products and/or services or unit thereof which gives rise to the claim. Buyer shall not be liable for interest charges or penalties of any description. No lawsuit may be brought against Buyer on account of any breach by Buyer unless the suit is instituted within two (2) years of the date of the breach.

Art. 18 Drawing and data

Buyer retains all rights in drawings, engineering instructions, specifications and other data furnished to Seller by Buyer, and no such drawings, engineering instructions, specifications, or other data shall be reproduced, stored on any data bearer or incorporated in any data platform or in any way used, in whole or in part, in connection with Products and/or services furnished to others, and must be returned to Buyer immediately upon Buyer’s request without Seller retaining any part thereof in whichever form or whichever data-bearer.

Art. 19 Propietary rights

Seller hereby grants to Buyer a perpetual, transferable and royalty-free license to use, sell, offer for sale, import, distribute, advertise, market and promote Products (including through packaging, repackaging, labeling, bundling and documentation) that incorporate in whole or in part the patent, copyright, trademark, trade dress or other intellectual property rights of Seller. Seller hereby assigns to Buyer, and not otherwise to make use of, any invention, improvement or discovery (whether or not patentable), conceived or reduced to practice in the performance of the Agreement by Seller or any employee or contractor of Seller or any other person working under Seller’s direction, and such assignment shall be considered as additional consideration for the making of the Purchase Order. Upon request of Buyer or completion of performance of the Purchase Order, Seller shall deliver to Buyer any and all information relating to any such invention, improvement or discovery, and shall cause employees or others subject to Seller’s instruction to sign as appropriate all documents necessary to enable Buyer to file applications for patents throughout the world and to obtain title thereto.

Art. 20 Materials and tools

If Buyer furnishes to Seller any dies, molds, jigs, tools, test equipment, and the like (“Tooling”), or pays for Tooling, then title thereto shall remain or vest in Buyer, and Seller shall identify, maintain and preserve all Tooling. All Tooling must be repaired, renewed and fully insured by Seller against loss and damage, as directed by Buyer. All Tooling is subject to removal by Buyer at any time upon Buyer’s demand.

Art. 21 Cancellation

For Seller’s failure to comply with any terms or conditions hereof, Buyer may cancel the Purchase Order, in whole or in part, without further liability to the Seller. Such cancellation, however, shall be without prejudice to any right or claim Buyer may have against Seller under law for breach inducing cancellation or otherwise. Failure of Buyer to insist on strict performance or observance by Seller of the Purchase Order, these Terms and Conditions or Buyer’s right in any one or more instances shall not constitute a waiver by Buyer of such performance, conditions or rights either then or for the future. Buyer may cancel the Purchase Order without further cost or liability to Seller in the event that any proceedings are instituted by or against Seller in bankruptcy or insolvency, or in the event of any assignment by Seller for the benefit of creditors. Buyer is moreover entitled to terminate the Purchase Order at any time for convenience, on payment for that portion of the supply which has been performed in accordance with the agreement.

Art. 22 Assignment

Seller shall not, without prior written consent of Buyer, assign or pledge the Purchase Order or any of Seller’s right or obligations hereunder. Any assignment or attempted assignment made without such consent shall be void as to Buyer.

Art. 23 Governing law; Language

The Purchase Order and all orders or further agreements in connection with the Purchase Order shall be exclusively governed by the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Products shall not be applicable. All disputes, claims or controversies – which shall be deemed to exist if one of the Parties considers this the case – arising out of or relating to this Purchase Order or the breach, termination, enforcement, interpretation or validity thereof (“Dispute” or “Disputes”), shall be resolved in accordance with this Section, which shall be the sole and exclusive procedure for the resolution of all Disputes. The parties shall attempt in good faith to resolve any Dispute promptly by negotiation. If the Dispute has not been resolved within thirty (30) days of a party’s request for negotiation, then the parties agree that any civil action to resolve said Dispute shall be exclusively litigated in the Netherlands’ Gelderland District Court in Arnhem. The parties expressly consent to, and irrevocably submit to the exclusive jurisdiction and venue of said court and acknowledge that they may be waiving rights they might otherwise have to bring suit in any other venue.

Art. 24 Supplier code of conduct

Seller shall comply with Buyer’s Supplier Code of Conduct, which can be viewed at https://www.rheem.com/legal/, in providing Products and services under the Purchase Order. Any violation of the Supplier Code of Conduct may cause Buyer to cease doing business with Seller.

Art. 25 General

The invalidity of any provision contained in the Purchase Order will not affect the validity of any other provision. Buyer’s failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege. The Purchase Order may be amended or modified only by a written instrument separately signed by Buyer or Seller. Seller shall not subcontract or assign its rights and obligations under the Purchase Order, in whole or in part, without Buyer’s consent. The provisions of Sections 8-9, 12-13, and 15-19 survive termination of the Purchase Order.