General conditions of sale and delivery
Registered with the Court in Arnhem on May 12, 2003 with number 2003/33.
The following General Conditions of Sale and Delivery used by Smit Draad/ Draad Nijmegen B.V. are based on the “General Conditions of Sale and Delivery for the metal and electrical engineering industry” registered by the sector organisation, the Vereniging Federatie Metaal- en Elektrotechnische Industrie (FME – the federation of metal and electrical engineering industries’ association) on 19 October 1998 at the clerk of the court’s office in The Hague under number 119/1998.
Article I General
- In the event that these General Conditions of Sale and Delivery form part of offers for and agreements regarding the performance of deliveries and/or services by Smit Draad / Draad Nijmegen B.V., hereinafter referred to as “the contractor”, all the provisions of these conditions between the parties are applicable, in so far as explicit written provision to the contrary has not been made by either party. References by the principal to his own purchase, tender or other conditions are not accepted by the contractor.
- In the Conditions of Sale and Delivery, the following definitions apply:
- product: movable goods, in particular winding wire intended for the electrical engineering industry, together with associated services such as maintenance, consultancy and inspectionIn these Conditions of Sale and Delivery, the following definitions also apply:
- the contractor: Smit Draad / Draad Nijmegen B.V.;
- the principal: the party to whom the aforementioned quotation is sent.
Article II Quotation
- Subject to written notification to the contrary, every quotation issued by the contractor is without obligation.
- All quotations are based on fulfilment of the agreement by the contractor under normal circumstances for the sector and during normal working hours.
Article III Agreement
- If the agreement is entered into in writing, it shall take effect on the day of dispatch of written order confirmation by the contractor, or else on the day on which the agreement is signed by the contractor.
- Verbal undertakings by and agreements made with staff of the contractor and/or his representative are not binding upon the contractor until and in so far as they have been confirmed by him in writing.
- Additional work is taken to mean everything delivered and/or supplied by the contractor in consultation with the principal, whether or not this has been stipulated in writing, during fulfilment of the agreement, over and above amounts stipulated in the order confirmation, or that which is performed by him over and above the activities stipulated in the order confirmation, including the rescheduling of an order.
Article IV Price
- The prices quoted by the principal exclude the base metal (copper), packaging, turnover tax and other government taxes imposed on sale and delivery.
Furthermore, prices are based on delivery “ex works” in accordance with the Incoterms applicable on the date of the quotation, subject to notification to the contrary in offers and/or order confirmations. Works shall be taken to mean the industrial premises of the contractor.If such has been expressly agreed, the contractor shall provide transport to the place of delivery at his own risk. He shall decide on the means of transport. The costs of delivery, insurance and any documentation shall be charged in accordance with the relevant agreement. The conditions relating to the base metal (copper) and the (decorative) packaging (spools, etc.) are separately specified.
- Should one or more of the price factors be modified as a result of external causes (including a change in exchange rates) after the date upon which the agreement entered into force, even if this change takes place as a result of foreseeable circumstances, the contractor is entitled to adjust the agreed price correspondingly.
- The agreement includes authorisation for the contractor to charge separately for additional work performed by her, as soon as he becomes aware of the amount to be charged. The rules contained in Clause 3 of Article III and in Clauses 1 and 2 of this Article apply correspondingly to the calculation of additional work plus costs.
Article V Drawings, calculations, descriptions, models, tools, etc.
- Information contained in price lists, illustrations, drawings, size and weight quotations, etc., are only binding if and in so far as these have been explicitly included in an order confirmation or agreement signed by the contractor.
- A quotation issued by the contractor and associate drawings, etc. remain his property. The information contained therein remains exclusively that of the contractor. The principal guarantees that this information shall not be copied, shown to third parties, published or used, other than for the purposes of fulfilling the agreement, without the written permission of the contractor.
Article VI Delivery and delivery time
- The delivery time commences on the latest of the following dates:a: the day upon which the agreement enters into force;b: the day upon which the contractor received the necessary documents, information, permits, etc., required for the fulfilment of the order;c: the day upon which the formalities required before the activities can commence have completed, including “koperbijstelling” (copper stock level adjustment) and financial security;
d: the day upon which the contractor receives amounts which are to be paid in advance in accordance with the agreement before the commencement of activities.
In the event that a delivery date or a delivery week has been agreed, the delivery time is the period between the date upon which the delivery time commences in accordance with Clause 1 of this Article and the delivery date or week.
- The delivery time is based on the working conditions applicable at the time the agreement is concluded and on the punctual delivery of the materials ordered by the contractor for the performance of the work. Should a delay rise for which the contractor is not responsible, as a result of a change in the aforementioned working conditions or because materials ordered in time for the performance of the work are not delivered on time, the delivery time shall be extended as required.
- The product shall be deemed to be delivered, with respect to the delivery time, once it is ready for inspection, if inspection as referred to in Article VII.1 has been agreed. In other cases, delivery shall be deemed to have taken place when the product has arrived at the place of delivery or has (actually) been delivered.
- Without prejudice to the provisions made elsewhere in these conditions, regarding an extension of the delivery time, the delivery time shall be extended by the duration of the delay incurred by the contractor as a consequence of non-compliance by the principal with any of his obligations pursuant to the agreement, or as a consequence of cooperation requested of him relating to the fulfilment of the agreement.
- With the exception of gross negligence on the part of the contractor, exceeding the delivery time does not grant the principal any right to total or partical cancellation of the agreement. Exceeding the delivery time – for whatever reason – does not entitle the principal to carry out activities in fulfilment of the agreement, or to have such carried out, or to claim compensation for any form of damage.
Article VII Inspection and Acceptance
- Before dispatch of the product to be delivered by the contractor, the principal can be given the opportunity to inspect the product at the principal’s works during the period agreed or to be agreed, at the invitation of the contractor and at the principal’s own expense. Should this period elapse without written, detailed notification of justified complaints, the product is deemed to have been accepted.
- The product shall in any event be regarded as having been accepted following the expiry of a period of two weeks following handover/delivery.
- In the event of insignificant faults, particularly those which have little or no influence on the intended use of the product, the product shall be deemed to have been accepted irrespective of these faults. The contractor shall still correct such faults as quickly as possible.
- Acceptance in accordance with the above Clauses shall exclude any claim in this respect on the part of the principal regarding an error in performance on the part of the contractor.
Article VIII Transfer of risk and ownership
- As soon as the product has been delivered within the meaning of Article VI, the principal bears the risk for all direct and indirect damage which may be caused to or by this product, unless such can be attributed to gross negligence on the part of the contractor. If, after notice of default, the principal fails to purchase the product, the contractor shall be entitled to charge the principal for the costs of storing the product.
- Without prejudice to the provisions of the previous Clause and of Article VI, Clause 3, ownership of the product shall only be transferred to the principal once everything which is owed by the principal to the contractor for deliveries or activities has been paid in full, including interest and charges.
- If necessary, the contractor shall be entitled to have unrestricted access to the product. The principal shall cooperate with the contractor in all respects in order to give the contractor the opportunity to exercise the reservation of ownership referred to in Clause 2 by taking back the product.
- In so far as the principal has not complied with his obligations towards the contractor, the latter also has the right of retention over the products to be delivered and already delivered and/or goods belonging to the principal which are in the possession of the contractor.
- Without prejudice to the provisions of the previous Clauses, the principal undertakes in advance, should he remain in default with respect to his (payment) obligations as described in Article IX, to cooperate with the contractor in attaching a right of lien on the delivered products on behalf of the contractor, or on the items into which these products have been incorporated and/or of which they have become a component, which right of lien the contractor is entitled to exercise if the principal fails to lend his cooperation.
Article IX Payment
- Payment of the agreed price is to be made in accordance with the provisions of the order confirmation.
The contractor is obliged to provide security to the contractor in response to a request in this respect in the form of, for example, a letter of credit or a bank guarantee.
- Payment for additional work is made as soon as this is invoiced to the principal.
- All payments are to be made without any deduction or adjustment at the offices of the contractor or to an account which he shall designate.
- If the principal does not pay within the agreed periods, he is considered to be legally in default and the contractor is entitled to charge him interest, without any notice of default, with effect from the due date, according to a percentage of 3 points above the prevailing statutory commercial rate in the Netherlands, as well as on the collection of the judicial and extra-judicial costs which he is owed, at a minimum of 15 percent of the principal sum.
- Each payment to the contractor is intended primarily to cover the interests and charges referred to in Article IX, Clause 4, including any collection charges which may have been incurred. Any excess shall be offset against the longest outstanding claim.
Article X Guarantee
- Without prejudice to the restrictions referred to below, the contractor shall guarantee both the reliability of the product delivered by him, as well as the quality of the material used and/or delivered for its manufacture, with respect to faults in the delivered product which are apparent upon inspection (in accordance with the provisions contained in Article VII).
- Faults covered by the guarantee referred to in Clause 1, will be remedied by the contractor at his own expense by repair or replacement of the faulty product, as the contractor shall decide. All costs incurred over and above the sole obligation as described in the previous sentence are for the account of the principal.
- In any event, faults which occur which are entirely or partially the result of the following, are not covered by the guarantee.a: normal wear and tear;b: the application of any government regulation relating to the nature or quality of the materials used;c: materials or goods used on the instruction of the principal;
d: materials or goods provided by the principal to the contractor for processing;
e: materials, goods, operating procedures and constructions, in so far as these are applied in accordance with explicit instructions from the principal, together with materials and goods delivered by or on behalf of the principal;
f: third party components incorporated by the contractor, in so far as the third party has not provided the contractor with any guarantee.
- In the event that the principal does not satisfy any obligation, or does not do so correctly or in good time, which is incumbent upon him as a result of the agreement concluded with the contractor or an associated agreement, the contractor is not bound to any guarantee with respect to any of these agreements, however referred to.
- Complaints with respect to faults are to be made in writing as soon as possible after they have been discovered, and no later than two weeks following surrender or delivery. Any legal action in this respect is to be taken within six months of the complaint upon penalty of extinction.
- If the contractor replaces products in fulfilment of his guarantee obligations, the replaced products become the property of the contractor.
Alleged non-compliance by the contractor with his guarantee obligations does not release the principal from the obligations incumbent upon him as a result of any agreement concluded with the contractor.
Article XI Liability
- The contractor’s liability is restricted to compliance with the guarantee obligations described in Article X of these conditions.
- With the exception of gross negligence or malicious intent on the part of the contractor and aside from the provisions of Clause 1, all liability on the part of the contractor, such as that for consequential loss, other indirect loss and loss as a result of third party liability, is excluded.
- The contractor is therefore not liable for:breech of patents, licences or other third party rights as a result of the use of information provided by or on behalf of the principal;damage or loss, however caused, to raw materials, semi-manufactured goods and other goods made available by the principal, in so far as these are not on the industrial premises of the contractor.
- In all cases, the liability of the contractor is limited to the amount paid out to the contractor pursuant to a liability insurance taken out by him.
- The principal is obliged to indemnify or compensate the contractor in respect of all third party claims for compensation of damage in respect of which the contractor is not liable vis-à-vis the principal under these conditions.
Article XII Non-attributable deficiencies (Force majeure)
In these General Conditions of Sale and Delivery, force majeure implies any circumstance beyond the control of the contractor – even if this circumstance was foreseeable at the time the agreement was concluded – which permanently or temporarily prevents fulfilment of the agreement, together with, in so far as this is not already included, war, threat of war, civil war, rioting, strikes, lock-outs of workers, transport dificulties, fire and other serious disruptions to the operations of the contractor or his suppliers.
Article XIII Suspension and cancellation
- If fulfilment of the agreement is prevented as a result of force majeure, the contractor is entitled either to suspend fulfilment of the agreement for a maximum of six months, without legal intervention, or to cancel the agreement entirely or partially, without being bound to make any compensation.
During the period of suspension, the contractor is authorised, and at the end of this period he is obliged, to choose either fulfilment or entire or partial cancellation of the agreement.
- Both in cases of suspension and cancellations pursuant to Clause 1, the contractor is entitled to require immediate payment in respect of the raw materials, materials, components and other goods reserved by him, processed or manufactured, of the value which can reasonably be attributed to them. In the event of cancellation pursuant to Clause 1, the principal is obliged to take possession of the goods referred to above, after payment of the amount owing pursuant to the previous sentence; should he fail to do so, the contractor is authorised to have these goods stored for the account and risk of the principal or to sell them at the principal’s expense.
- If the principal does not comply with any obligation incumbent upon him as a result of the agreement concluded with the contractor, or does not do so correctly or on time, or as a result of an associated agreement, or if good reason exists to doubt that the principal is or will be in a position to comply with his contractual obligations to the contractor, together with the event of bankruptcy, suspension of payment, statutory debt rescheduling, shut-down, liquidation or partial transfer – whether or not as security – of the principal’s company, including the transfer of a significant section of his claims, the contractor is entitled either to suspend implementation of each of these agreements for a maximum of six months without legal intervention or notice of default, or to cancel the agreement entirely or partially without being obliged to make any compensation or guarantee and without prejudice to his additional rights. During the period of suspension, the contractor is authorised, and at the end of that period he is obliged, to choose either fulfilment or entire or partial cancellation of the suspended agreement(s).
- In the event of suspension, the agreed price becomes payable upon demand, after deduction of instalments previously paid and costs saved by the contractor as a result of the suspension. The contractor is authorised to have the raw materials, materials, components and other goods reserved by him, processed or manufactured in fulfilment of the agreement stored for the account and risk of the principal. In the event of cancellation, the agreed price – provided no previous suspension has taken place – becomes payable upon demand, after deduction of previously made instalments and savings made by the contractor as a result of the suspension, and the principal is obliged to pay the aforementioned amount and to take possession of the aforementioned goods. If he fails to do so, the contractor is authorised to have these goods stored for the account and risk of the principal or to have them sold at the latter’s expense.
- All loss incurred by the contractor as a result of the cancellation of the agreement is for the account of the principal.
Article XIV Disputes
All disputes which may arise as a result of an agreement to which these General Conditions of Sale and Delivery apply, or as a result of additional agreements, will exclusively be settled by the competent Civil Court within the District of Arnhem, unless the parties expressly agree in writing to have the dispute submitted to arbitration in accordance with the Statutes of the Stichting Raad van Arbitrage voor Metaalnijverheid en –Handel (the council of arbitration for the metal industry and the metal trade association) in The Hague.
Article XV Applicable law
Dutch law governs all agreements to which these conditions are entirely or partially applicable.