AGREEMENTS GOVERNING SALES AND DELIVERY
– Conditions (written with a capital C): the General Terms and Conditions in question;
– Supplier (written with a capital S): Water Ingredients B.V. established in Soest, by whom or on whose behalf these Conditions have been declared applicable and also those for whom or on whose behalf these conditions have been or are applicable in a clearly recognizable and correct manner and to their representatives, proxy-holders and legal successors;
– Other Party (written with a capital O and a capital P): each natural person, legal body, commercial partnership, limited partnership or other entity that enters into or has entered into an agreement with the Supplier, or to whom an offer or a proposal is or has been made or extended by or on behalf of the Supplier, or to whom or by order of whom a delivery is or has been made by or on behalf of the Supplier, or by order of or for the benefit of whom one or more services is or has been performed by or on behalf of the Supplier.
1.2 These Conditions cover offers made, offers submitted, agreements entered into and the execution thereof, and deliveries and services performed by or on behalf of the Supplier. Departures from these Conditions will only be in force if agreed in writing by the Supplier and by the Other Party.
1.3 The application of general terms and conditions other than these Conditions is expressly forbidden, regardless of how such alternative general terms and conditions might be called and whatever form they might have, including the purchasing conditions and other general terms and conditions of the Other Party or those that might be employed by the Other Party and the suitability of any such alternative general terms and conditions is expressly rejected by the Supplier. The acceptance of an offer or a quotation made by or on behalf of the Supplier, entering into an agreement with the Supplier, the acceptance of a delivery from or on behalf of the Supplier, or the acceptance of services performed by or on behalf of the Supplier means that the Other Party unconditionally accepts the application of these Conditions and that the application of other general terms and conditions as referred to in this Clause is out of the question and that, insofar as is relevant, the Other Party distances itself from the application of other general terms and conditions.
2.1 Each offer or quotation made by or on behalf of the Supplier is made without obligation and does not bind the Supplier except when and insofar as the Supplier has explicitly stated otherwise in writing, or when the parties have agreed otherwise in writing.
2.2 Price lists, brochures, catalogues, folders and other information provided by or on behalf of the Supplier are prepared as carefully as possible but they nevertheless bind the Supplier only when and insofar as they have been explicitly confirmed by the Supplier in writing. The Supplier is not obliged to provide detailed information unless this has been agreed otherwise in writing.
2.3 All brochures, catalogues, price lists and folders provided in connection with an offer or a quotation and all associated information provided in the form of samples, tables, schedules, etc., and all other data and information provided explicitly remain the industrial and intellectual property of the Supplier. Without the Supplier’s prior written permission, the Other Party is expressly forbidden from copying any material, data or information as meant in the previous sentence either wholly or partially and/or from making it known to third parties in whatever way and/or from allowing it to be used by third parties and/or from selling it or from placing it at anybody’s disposal. The use of this material, these data and this information remains strictly limited to use by the Other Party within the framework of the order given to the Supplier. All the material, data and information referred to here, must be returned immediately to the Supplier at the first request from the Supplier or if, within the time limit of the offer, the Other Party does not enter into an agreement or if the Other Party cancels this agreement.
2.4 If no agreement is entered into the Supplier is entitled to pass on the costs made when preparing an offer or a quotation to the Other Party.
2.5 Standard documentation such as descriptions, instructions and test certificates will be provided free of charge unless the Supplier indicates otherwise. The Other Party will be charged for extra copies of such standard documents and for other documents which are not standard.
2.6 Any prices are only valid for the quantities offered.
3. Realisation and content of an agreement
3.1 An agreement between the Supplier and the Other Party is realized at the moment that the Supplier confirms in writing the acceptance of an assignment or order from the Other Party; the scope and content of the agreement is in accordance with that stated in the written confirmation of the Supplier.
3.2 If an offer or a quotation, in the light of the provisions of Clause 2.1, is not without obligation and a binding period of time for the offer has been set when the agreement is realized at the moment the offer or quotation is accepted within the time limit by the Other Party, than the confirmation of the assignment, order or binding offer is deemed to correctly and completely represent the agreement.
3.3 An agreement binds the Supplier only when it has been entered into and when the written confirmation meant in Clause 3.1 has been signed by one or more persons who are authorized to commit the Supplier in such a manner, and any agreements or additions and/or changes to them or in them and agreements, promises, etc., drawn-up or made by an employee or employees of the Supplier or by a representative, agent or other intermediary or by one or more other people who are not authorized to commit the Supplier in such a manner, whether or not these are made in writing, are not binding to the Supplier.
3.4 Any changes and/or partial cancellation or complete cancellation of an assignment or order by or at the request of the Other Party can only take place with the prior written permission of the Supplier and on condition that activities already carried out by the Supplier will be paid for, in full, by the other Party; in the case of a change and/or partial cancellation requested by the Other Party, the Supplier is entitled to pass on any related (extra) costs to the Other Party and to determine a new delivery time.
3.5 For activities or assignments for which, because of their nature and size, no quotation or order confirmation is sent, the agreement will be realized at the moment the Supplier or someone on behalf of the Supplier actually begins to carry out the agreement and, in such cases, the invoice will be considered as the order confirmation and at the same time is deemed to correctly and completely represent the agreement.
3.6 An agreement with the Supplier is entered into on the express condition that the suppliers and other contract partners of the Supplier fulfill their obligations on time and in the correct manner.
3.7 When entering into an agreement or, thereafter and before starting with the execution of the agreement on his part, or continuing with the execution of the agreement the Supplier is entitled to demand the provision of sufficient certainty from the Other Party regarding timely settlement by the Other Party of its payment obligations and other obligations.
3.8 The Supplier is at all times authorised to engage third parties for the execution of the agreement; the costs involved will be passed on to the Other Party in line with the quotations provided.
4.1 Except when and insofar as binding prices apply, all price quotations are without obligation.
4.2 Except when otherwise explicitly notified in writing, prices are:
– based on purchase prices, wage rates, wage costs, social security and government costs, transport costs, insurance premiums and other costs prevailing on the date of the offer or quotation or (if no offer or quotation is made) the date of the order;
– based on ex-works or ex-warehouse delivery from the Supplier;
– exclusive of VAT, import duties and other taxes, levies and duties;
– exclusive of the costs of packaging, loading and unloading, transport and insurance.
4.3 Unless specifically expressed otherwise, prices stated or agreed upon are in Euros (EUR).
4.4 In every case prices are stated or agreed upon on the condition that changes in exchange rates will be passed on if the official exchange rate at the moment of delivery deviates by more than 2% from the exchange rate on the date when the offer or quotation was made, the latter exchange rate parity being considered as 100.
4.5 If there is an increase in one or more of the factors determining the cost price then the Supplier is entitled to increase the order price accordingly, with due observance of existing applicable legal requirements and with the proviso that any future price increases which the Supplier is aware of on the date of the order confirmation should be specified on this order confirmation.
5.1 The risk with regard to the goods/(semi-finished) products sold and/or delivered by or in the name of the Supplier to the Other Party is transferred to the Other Party: for goods/(semi-finished) products supplied out of stock, this occurs at the moment these goods/ (semi-finished) products are segregated for the benefit of the Other Party, in case of goods/(semi-finished) products that have to be assembled by the supplier of the Supplier, at the moment that these goods /(semi-finished) products are assembled on behalf of the Other Party by the supplier of the Supplier; and for other goods/(semi-finished) products, this occurs at the moment the goods/(semi-finished) products are loaded for transportation to the Other Party or to a place indicated by the Other Party, except when and insofar as might be otherwise agreed in writing.
5.2 Irrespective of what might be otherwise agreed with regard to the risk, any loading and unloading and transport will at all times be at the risk of the Other Party.
6. Delivery and delivery time
6.1 Except when and insofar as has been agreed otherwise in writing and without prejudice to the provisions in Clause 4.2 of these Conditions, deliveries to the Other Party or to another place specified, timely, by the Other Party, are made on a carriage paid basis. For orders or deliveries under a specified amount, the Supplier is entitled to pass on an amount covering the administrative costs to the Other Party.
6.2 Except when and insofar as has been agreed otherwise in writing and without prejudice to the provisions in Clause 5 regarding the transfer of the risk, the moment of delivery is the moment that the goods/(semi-finished) products are unloaded or discharged at the place where they must be delivered (the actual transfer).
6.3 The Other Party must report any shortages, defects and damage, in writing, directly to the Supplier within 24 hours of the delivery and if nothing is reported within that time frame the goods will be considered to have reached the Other Party in good condition, complete and without damage.
6.4 The Supplier is entitled to make partial deliveries, which can be invoiced separately, and when this occurs, the Other Party is obliged to pay these separate invoices in accordance with the provisions specified in Clause 18 of these Conditions.
6.5 Except when and in insofar as has been agreed otherwise in writing, the delivery times specified by or on behalf of the Supplier in an offer or a quotation are not intended to have a deadline, which means, amongst other things, that when a delivery is late or (too) early, the Other Party must explicitly notify the Supplier in writing before the Supplier can be held in default.
6.6 The Supplier is obliged to observe the specified delivery time or delivery period as much as possible, yet will never be liable the time or period is exceeded and when the time or period is exceeded the Supplier is not obliged to provide any compensation for damages. Exceeding a delivery time or delivery term does not give the Other Party the right to terminate or to dissolve the agreement or to refuse to purchase the goods/(semi-finished) products. In cases where the delivery time or term is exceeded excessively, the parties must consult with each other.
6.7 If goods/(semi-finished) products are not purchased by the Other Party within the delivery time or period, or if the Other Party does not observe an agreed upon Call Off period, than the Supplier is entitled to invoice the Other Party for the goods/(semi-finished) products in question and, furthermore, the Supplier is entitled to store these goods/(semi-finished) products at its own discretion but entirely at the cost and risk of the Other Party. In the case where the Other Party does not purchase or call off within the agreed period, the Supplier, according to his own choice, can demand fulfillment by the Other Party or can dissolve the agreement, without prejudice to the right of the Supplier, in either case, to claim damages.
7. Transport and packing
7.1 Unless indicated by the Other Party to the Supplier in writing, the manner and choice of packing, transport, shipment etc., of goods/(semi-finished) products is a matter completely at the discretion of the Supplier and will be determined with care as can be reasonably expected from the Supplier, without prejudice to what is specified about the transport risk in Clause 5.2 of these Conditions.
7.2 Any specific wishes the Other Party may have with regard to packing and/or transport, including relocation within the company or company terrain, will only be accepted if the Other Party pays the costs involved. Furthermore, the Supplier is entitled to not honour specific wishes from the Other Party with respect to packing and/or transport which have not been explicitly agreed upon priorly.
7.3 If the invoiced value of the goods/(semi-finished) products delivered is less than an amount to be specified by the Supplier, then the Supplier is entitled to pass on any administrative costs.
8.1 Only durable packaging, provided it is in a good and usable condition, can be taken back by the Supplier against cost price and only on the condition that this packaging is specified separately at cost price, either on the delivery documents or on the invoice.
8.2 If the durable packaging meant in Clause 8.1 is returned in a clearly poorer state then when it was used for the loading of the shipment to the Other Party, then the Supplier is entitled to request compensation from the Other Party. The Other Party is not entitled to unilaterally deduct the value of the packaging or any other amount relevant to the packaging from the amount owed to the Supplier.
9. Force majeure (non-attributable failure)
9.1 If, as a result of force majeure, the Supplier is unable to fulfill any of his obligations to the Other Party and, at the sole discretion of the Supplier, the force majeure is of a permanent or long-lasting nature, then the parties can reach a settlement regarding the dissolution of the agreement in accordance with the rule of law and any consequences thereof.
9.2 If, as a result of force majeure, the Supplier is unable to fulfill any of his obligations to the Other Party and, at the sole discretion of the Supplier, the force majeure will be of a temporary or transitory nature, then the Supplier is entitled to postpone the execution of the agreement until the circumstance, cause or event causing the force majeure situation no longer arises.
9.3 Considered as “force majeure” is each circumstance, cause or event, wherever it is occurring, appearing or arising which temporarily or permanently prevents the correct, complete and timely fulfillment of any obligation of the Supplier or makes it impossible or unreasonably problematic, and each circumstance, cause or event which the Supplier, in all fairness, cannot be expected to prevent or which entirely or partially falls outside the sphere of influence of the Supplier, or on which the Supplier can exercise no influence. The following factors, amongst others, are considered as circumstances, causes or events resulting in force majeure: fire, explosion, lightning strike, ice break-up, low water, high water, tidal wave, spring tide, flood, earthquake, natural disasters; storm, tornado, cyclone, snow, frost and other weather conditions; strikes, work stoppages, excessive (sickness) absenteeism of personnel, labour unrest, lock-outs, boycotts; war (declared or not), mobilization, siege, besieging, blockade, molestation; riots, revolution, social unrest; governmental actions and/or regulations which prevent, delay or otherwise hinder the fulfillment of obligations; lack of transport resources; unnavigability or unusability of any eligible transportation route or means of transport; disturbances or interruptions in the provision, delivery or availability of energy; disturbances or interruptions in or of the functioning of any public utility; disturbances or interruptions or ending of the supply of raw materials, semi-finished and/or finished; disturbances or delay in or of, or interruptions or ending of, the supply of parts, spare-parts and other articles; non-fulfillment of obligations by a debtor or contract partner of the Supplier (including the non-fulfillment of obligations by one or more third parties); technical disturbances and/or faults, delays, disturbances or interruptions to or regarding the repair of machines, material, equipment, tools and/or instruments, serious illness and illnesses of an epidemic character.
9.4 The results of the circumstances, causes or events referred to in Clause 9.3 are also considered as “force majeure”.
9.5 If, as a result of force majeure, the Supplier in unable to fulfill his obligations with regard to one or more of his customers or buyers, but not his obligations with respect to all his customers or buyers, then the Supplier is entitled to decide himself which of the obligations will be fulfilled and for which customers or buyers, as well as the order in which they will be fulfilled.
9.6 The Supplier is entitled to demand payment for all activities carried out by or on behalf of the Supplier in the execution of the agreement with the Other Party before the force majeure circumstance, cause or event appeared or emerged.
10.1 In the event the Supplier supplies samples to the Other Party in relation to a purchase by the Other Party of goods/(semi-finished) products from the Supplier, then the assumption is that these have been given by way of indication only, unless the Supplier has expressly agreed with the Other Party in writing that the goods/(semi-finished) products that the Supplier will supply to the Other Party correspond with this particular sample.
10.2 In the event of purchase of goods/(semi-finished) products, the quality specification range by parameter given shall also be assumed to be merely indicative.
11.1 With due observance to the provisions specified elsewhere in these Conditions, the Supplier guarantees the quality of the materials used and their agreed characteristics as well as the correct working of the goods/(semi-finished) products provided by the Supplier. A guarantee for goods/(semi-finished) products purchased elsewhere by the Supplier is only given for and insofar as is provided by the original manufacturer(s).
11.2 Faults in any goods/(semi-finished) products supplied that fall under the guarantee will, at the sole discretion of the Supplier, be adapted to the wishes of the Other Party insofar as possible or the goods/(semi-finished) products will be replaced if the faults, in the opinion of the Supplier and/or manufacturer and/or the supplier of the Supplier, are attributable to faults in or shortcomings of materials or compositions used as a result of which the goods/(semi-finished) products are unusable by the other Party for the purpose for which they can be reasonably deemed to be intended for.
11.3 Goods/(semi-finished) products that have been rejected in writing to the Supplier by the Other Party based on quality issues and the rejection of which has been accepted by the Supplier in writing and that are eligible for replacement/recovery, must be returned to the Supplier carriage paid or to the manufacturer/supplier of the Supplier, in accordance with the instructions of the Supplier. In that case the Supplier is entitled to pass on any incurred cost of transport, packing and insurance to the Other Party.
11.4 In case it is established that the goods/(semi-finished) products returned to the Supplier for recovery/replacement show no defects or quality issues, then all costs made by the Supplier will be passed on the Other Party.
11.5 All possible claims of the Other Party on the Supplier in relation to the quality of the goods/(semi-finished) products delivered by the Supplier to the Other Party lapse if the Other Party itself makes any changes whatsoever to the goods/(semi-finished) products or allows changes to be made, and/or if the delivered goods/(semi-finished) products have not been or are not being used accurately, and/or treated exactly in accordance with the supplied or applicable directives or the user instructions and/or are being used or treated injudiciously in any other way and/or if the goods/(semi-finished) products supplied have been or are being used or applied for purposes other than those for which they are intended and/or if the goods/(semi-finished) products supplied have been or are being used in a way that the Supplier could not reasonably have expected.
12. Right of retention
12.1 If and for as long as the Other Party has not satisfied its obligations towards the Supplier ,the Supplier has the right to retain all goods/(semi-finished) products that have come from the Other Party or on behalf of the Other Party, no matter the origin or reason, in his possession.
12.2 The Supplier is obliged to administer the goods/(semi-finished) products referred to in Clause 12.1 or to allow them to be administered in accordance with sound commercial practice but the Other Party has no right to press for damages or compensation in case the goods/(semi-finished) products have completely or partially perished or got lost and/or damaged when this is not the fault of the Supplier, and, furthermore, the risk associated with these goods remains with the Other Party.
13.1 Except when and insofar as something else might otherwise ensue from the provisions of imperative law concerning (product) liability, the Supplier is not obliged to compensate for damage, of whatever nature, to any movable or immovable property and/or to any person, including any loss of profits, related to the Other Party and/or any third party, this damage being caused directly or indirectly by or connected with any object or property supplied by or on behalf of the Supplier or being caused directly or indirectly by or being connected with any use or any application or operation of such an object or property or with the storage or keeping thereof, and the Other Party explicitly indemnifies the Supplier against claims and demands that are based on such damage or are connected with it. Bearing in mind what is specified elsewhere in this Clause, the Supplier is, in every case, not liable for damage or loss directly or indirectly caused by:
– injudicious use of the product supplied or its use for a purpose other than what it reasonably could be considered suitable for or its use for a purpose other than what, by objective standards, it is suitable for or its use for any other purpose than what the Supplier reasonably could have expected it to be used for;
– careless conduct by the Other Party, or the personnel of the Other Party or anybody brought in by the Other Party, or any other person on the part of the Other Party;
– infringement of any patent, brand, origin indication or any other industrial or intellectual ownership rights or any other exclusive right, or infringement or violation of a license under any such a right, which is the direct or indirect result of the use and/or application and/or publication or replication of data provided by or on behalf of the Other Party such as descriptions etc.
13.2 Except in the case of intentional or flagrant damage on the part of the Supplier, the Supplier is not liable for any damage as meant in Clause 13.1 which is caused by or is the result of any service performed by or on behalf of the Supplier.
13.3 With respect to any advice provided, the Supplier is only liable for commonly foreseeable and avoidable shortcomings in the advice, with the proviso that this liability never exceeds the amount agreed upon and received for the advice.
13.4 Any liability on the part of the Supplier is at all times limited to directly caused damage and is, at all times, limited to the amount, in each case, covered by the liability insurer of the Supplier; if necessary, and at the request of the Other Party, the Supplier will provide information about the amount insured. If the Supplier has no liability insurance then any liability on the part of the Supplier is at all times limited to the net amount invoiced for the goods/(semi-finished) products in question.
13.5 Settlement of the prevailing guarantee obligations and/or the payment by the Supplier’s insurance or payment by the Supplier (with due observance of the maximum amount meant in Clause 13.4) of the assessed damage is to be regarded as the only and complete compensation. For the rest, the Other Party indemnifies the Supplier explicitly and completely.
13.6 Without prejudice to the provisions otherwise specified in this Clause, every claim for damages lapses one year after the damage has manifested itself or has been discovered or has been recognized or reasonably could have been expected to have been discovered or recognized.
13.7 With respect to goods/(semi-finished) products for which the Supplier has involved third parties, the applicable contract provisions applying to the respective transaction are also valid for the Other Party if and insofar as the Supplier wants to invoke them.
14.1 Without prejudice to the provisions in Clause 6.3 of these Conditions, any claim can only be
handled if it is received by the Supplier in writing within eight (8) days of the delivery. For hidden faults, claims are only possible within the guarantee period.
14.2 Contrary to the provisions in Clause 14.1, any claim with regard to goods/(semi-finished) products for which an inspection takes place must be made immediately on the date of inspection and at the place where this inspection occurs and, after that, be confirmed at once to the Supplier, in writing.
14.3 Claims can only be handled when the nature and grounds for the complaints are accurately stated.
14.4 Claims regarding invoices must be lodged with the Supplier in writing within eight (8) days of the date of the invoice.
14.5 If within the applicable period of time no claim is made in the required manner, then the delivery will be considered as completely satisfying the agreement and to be unconditionally accepted and approved by the Other Party; an invoice against which no claim has been lodged in the required manner within the period of eight days specified in Clause 14.4 will be regarded as having been unconditionally accepted and approved by the Other Party.
14.6 If a claim with regard to goods/(semi-finished) products supplied by the Supplier is found to be legitimate, then the Supplier is only obliged to replace the unsound goods/(semi-finished) products, the Other Party having no additional right to any other compensation.
14.7 Lodging a claim never discharges the Other Party from its payment obligations towards the Supplier.
14.8 Returning the product supplied or any part thereof, for whatever reason, can only take place after the previous explicit written approval and in compliance with the forwarding instructions of the Supplier.
15. Permits etc
15.1 The Other Party is responsible for ensuring that all permits, concessions, licenses, consents and so forth that might be necessary for the delivery by the Supplier of the goods/(semi-finished) products sold or for the Supplier to fulfill his obligations, are obtained in time and in the correct form; the costs associated with obtaining such permits, concessions, licences, consents and so forth are to be borne by the Other Party.
15.2 The absence of any permit, concession, licence, consent and so forth as meant in Clause 15.1 will be considered as an accountable failing on the part of the Other Party and the Other Party will not be released from any of its commitments towards the Supplier, nor can it be a reason for the postponement of the fulfillment of any obligation the Other Party has towards the Supplier.
15.3 The Other Party is liable for all damage which may be caused directly or indirectly by the absence of any permit, concession, licence, consent and so forth as meant in Clause 15.1 and the Other Party indemnifies the Supplier against claims and demands connected with such damage.
16. Intellectual ownership rights
16.1 The Other Party will employ all essential documentation and other data and information supplied by or on behalf of the Supplier only for its own (internal) use and will not in any way pass it on or sell or make it available to third parties nor allow any third party to use it.
16.2 If in the unhoped-for event that a good/(semi-finished)product sold by the Supplier to the Other Party in The Netherlands infringes an industrial or intellectual ownership right of a third party and the Other Party is held liable then the Other Party is obliged to at once inform the Supplier in writing of the situation and the Supplier can then choose either to procure the right to be able to use the good/(semi-finished)product, or to provide a replacement good/(semi-finished)product which does not infringe the right, or, once the Other Party has returned the good/ (semi-finished)product, refund the purchase price to the Other Party after subtraction of reasonable compensation to cover the period when the good/(semi-finished) product was available to the Other Party. With regard to the infringements of industrial and intellectual property rights outside The Netherlands the Other Party can make no claim or demand whatsoever against the Supplier.
16.3 The Supplier cannot be held liable in any way with regard to the infringement of any industrial or intellectual property right or any other exclusive right that is the result of any change in or to a good/(semi-finished)product sold or supplied by or on behalf of the Supplier or of the use or application of such a good/(semi-finished)product in a different way than what the Supplier could have expected or assumed, or that is the result of its integration, use or application in combination with other goods/(semi-finished) products not sold or supplied by or on behalf of the Supplier.
17. Retention of title
17.1 Without prejudice to the provisions in Clause 5. of these Conditions regarding the risk and the transfer thereof, all the goods/(semi-finished) products supplied by or on behalf of the Supplier remain the property of the Supplier until the moment that the debt owned by the Other Party to the Supplier has been settled in full, this debt being the amount that the Other Party has owed the Supplier since the realization of the agreement, inclusive of all interest and costs. In the case of an account relationship the ownership of the goods /(semi-finished) products supplied remains with the Supplier until the moment that the Other Party settles his account.
17.2 For as long as the ownership of the goods/(semi-finished) products supplied by or on behalf of the Supplier remains, in accordance with the provisions in Clause 17.1, with the Supplier, the Other Party is obliged to keep these goods/(semi-finished) products separately from other goods/(semi-finished) products in such a way that they can easily and clearly be identified as the goods/(semi-finished) products of the Supplier.
17.3 In the case of non-payment by the Other Party of any amount due to the Supplier and, furthermore, when the agreement has ended, the Supplier will be entitled to demand the return of any good/(semi-finished) product for which ownership reservation applies and to take all necessary actions associated therewith, taking into account any payment already made for the good/(semi-finished)product, without prejudice to the right of the Supplier to demand compensation for possible loss or damages. In the case of non-payment or termination of an agreement each claim the Supplier has against the Other Party will immediately be due. In case the goods/(semi-finished) products supplied by the Supplier have already been processed by the Other Party and incorporated in other products, the Supplier will be entitled to claim these goods for which ownership reservation applies as well and to take all necessary actions associated therewith.
17.4 At the first demand from the Supplier, the Other Party must authorize the immediate return of the goods/(semi-finished) products that have not yet been fully paid for wherever these may be located. The above mentioned in this Clause applies in full to goods/(semi-finished) products delivered by the Supplier that have been incorporated by the Other Party in other goods/products as well.
17.5 The Other Party is entitled to sell or to use the goods/(semi-finished) products on which there is an ownership reservation in favour of the Supplier within the framework of normal business operations; however, no right of security can be bestowed on these goods /(semi-finished)products, while, with regard to these goods/(semi-finished)products, the Other Party must not perform any actions or allow any actions to be performed which result in these goods/(semi-finished) products becoming a part or element of one or more other goods/(semi-finished)products. When goods/(semi-finished) products with an ownership reservation still in favour of the Supplier are sold on, the Other Party is obliged to reserve ownership for himself and, at the first request of the Supplier, to assign to the Supplier all demands against the debtor of the Other Party, up to the amount that the Other Party owes.
18.1 Unless agreed otherwise, payment must be made on delivery or within thirty (30) days of the invoice date via a deposit or funds transfer into the bank account indicated by the Supplier. The Supplier is entitled to grant a cash discount or payment reduction, which will be notified in advance. The date on the Supplier’s bank statement recording the payment as received will be considered as the date on which the payment has occurred.
18.2 Each payment by the Other Party will be used first of all for the settlement of any interest due and for any collection and administration costs before settling any outstanding claims in order of age starting with the oldest.
19. Default: interest and costs
19.1 The Other Party will be liable for ensuring that a payment or the settlement of any other obligation takes place in time without the need for a reminder, a summons or a notification of default.
19.2 If the Supplier does not receive a payment due from the Other Party in time than, as of the day that the payment should have been made, the Supplier will automatically charge the Other Party interest at a rate of one and a half (1 ½%) per month, without prejudice to any further rights the Supplier has; when calculating the interest owed, months started but not completed will count as whole months. This so-called delay interest rate of
1 ½% per month is a minimum rate and if this rate, when calculated on a yearly basis, is at any time less than 5% over the officially applicable interest rate in The Netherlands than it will be automatically increased so that, on a yearly basis, it is 5% higher than the official interest rate.
19.3 All legal and extrajudicial costs incurred by the Supplier, including the costs incurred by the Supplier for legal aid and legal advice, are to be borne by the Other Party. The extrajudicial collection costs amount to 15% of the amount to which the Other Party is indebted inclusive of any interest due, without prejudice to the right of the Supplier to claim damages from the Other Party for the actual collection costs made if these are more than the 15% specified.
20. Ending an agreement
20.1 In the case of non-observance by the Other Party, the Supplier will be entitled to terminate and/or dissolve the agreement in writing without judicial intervention and without prejudice to the right of the Supplier to claim damages, to make use of the rights resulting from retention of title and to take other (legal) steps, and without prejudice to the right of the Supplier to demand fulfillment (with or without compensation) of the agreement instead of its termination.
20.2 The Supplier may terminate the agreement with the Other Party with immediate effect in writing if:
a. the Other Party is declared bankrupt, goes into administration, presents a request for suspension of payment, or if the Other Party (temporarily or definitely) is granted a suspension of payment or if the total assets of the Other Party or a part thereof are/is seized;
b. the Other Party, when this is a natural person, dies or is placed under tutelage or if an administrator is appointed over the Other Party’s property;
c. if the Other Party, when this is a legal person, goes into liquidation or if a claim for the dissolution of the Other Party is made or a dissolution decision with respect to the Other Party has been or is taken.
20.3 If an agreement, according to the provisions of this Clause, is terminated or dissolved then the amount that the Other Party owes to the Supplier at the moment of termination or dissolution remains as the full debt and the Other Party will be liable to pay interest and costs according to the provisions of these Conditions, without prejudice to the right of the Supplier to demand damages or any other rights due to the Supplier.
21. Cancellation by Other Party
The Other Party has the right to annul the order or agreement in writing in the following instances:
– if the Supplier, after exceeding the delivery time, again exceeds a new delivery time agreed upon by both parties without justifiable grounds, provided that the Other Party has declared in writing before agreeing to the new term of delivery that it will refuse acceptance if the new delivery term is exceeded; and
– if the Supplier cannot fulfill his delivery obligations within a reasonable period of time and has made this known in writing to the Other Party.
Cancellation as meant in this Clause will never result in the Other Party being compensated for any damages.
22. Transfer of rights/obligations, third party engagement
22.1 The Other Party cannot transfer its rights and/or obligations resulting from any agreement with the Supplier to third parties or use them to provide security or collateral vis-à-vis third parties, without prior written approval of the Supplier thereto.
22.2 The Supplier is entitled to engage or have engaged third parties on behalf of and for the account of the Other Party in the execution of an agreement with the Other Party, if, in the opinion of the Supplier, there is a reason for doing so or if this results from the agreement with the Other Party.
23. Alterations to an agreement
23.1 Alterations to an agreement are only valid if they are made in writing and if both parties have consented to the alternation(s).
24. Titles of the Clauses
24.1 The titles of the Clauses of these Conditions are intended solely to simplify the reading and organisation of these Conditions and they have no other significance; in particular these titles cannot be used for the interpretation of these Conditions.
25. Applicable law; disputes
25.1 Dutch law is applicable to all offers, agreements, deliveries and services produced or made, entered into, performed or executed by or on behalf of the Supplier, with the exception of the applicability of the treaty of the United Nations concerning international trade agreements relating to movable goods (Vienna Sales Convention).
25.2 All disputes, including those that are only considered as such by one party, resulting from, or connected with, an agreement to which these Conditions are applicable or the execution thereof and that cannot be solved amicably, will be settled in the first instance by a District Court of the district in which the Supplier is located, with the proviso that if a particular judge is mandatorily appointed as competent judge, the dispute will be decided in the first instance by the judge so appointed, without prejudice to the right of the Supplier to seizure or to take other provisional measures at the place(s) and before the legal bodies that the Supplier wishes.
25.3 The provisions of Clause 25.2 leave intact the right of the Supplier to bring the dispute before a judge qualified according to the normal competency rules or to obtain a settlement by means of arbitration or a binding third-party ruling.
26.1 If any provision in these Conditions is not completely valid or only partially valid and/or not enforceable as a result of any legal directive, judicial judgment or any directive, decision, recommendation or measure from any local, regional, national or supranational authority or body or otherwise, then this will have no effect on the validity of the other provisions in these Conditions. If a provision in these Conditions should prove to be invalid for whatever reason as indicated in the previous sentence but would be valid if it had a more limited range or scope, then this provision will be automatically valid with the most far-reaching or extensive range or scope with which or within which it is valid.
These agreements governing sales and delivery of Water Ingredients B.V. are deposited under number 58/2014 at the Court of Justice in Amsterdam