These Conditions apply to all delivery of goods or supply of services to GNT International B.V., Industrieweg 26, 5731 HR Mierlo, The Netherlands, including each of its subsidiaries and affiliates (“Buyer”) by supplier (“Supplier”) as defined herein. The Conditions apply to these and all similar dealings between Buyer and Supplier and apply even if diverging conditions have been made on the side of Supplier: such diverging conditions shall not be binding upon Buyer even if Buyer has not expressly contradicted the such conditions.
In this document, Agreement means the binding contract formed as described in clause 2; Affiliate of a party means any person, corporation, organization, company, partnership, joint venture, or other entity, which directly or indirectly controls, is controlled by, or is under common control with such party. The term “control” means the holding of more than 50% of the common voting stock or ordinary shares in such entity or any other comparable equity or interest with respect to such entity, the right to appoint or discharge more than 50% of the directors, the right to share in more than 50% of the profits of such entity, or the possession of sufficient authority to direct or cause the direction of management of such entity; Buyer means the legal entity which issues the Purchase Order or request for proposal; GNT (Group) is the group of companies organizationally connected with GNT Group B.V., each of them a GNT Group Company; Goods are the products, materials, liquids, equipment, design, software, rental properties, stored goods, and all related documentation to be supplied as specified in the Purchase Order. A Purchase Order is the order issued by a Buyer including all related documentation; Services are the services and/or all pertaining deliverables to be provided as specified in the Purchase Order. Supplier means each person or entity that enters into an Agreement with Buyer.
These Conditions, together with the relevant Purchase Order issued by Buyer, set forth the terms and conditions for the supply of Services and/or the delivery of Goods by Supplier to Buyer and will be binding to Parties at Supplier’s acceptance (the binding Agreement). Any changes by Supplier are binding only, if accepted by Buyer in writing. Performing of any part of a Purchase Order by Supplier will operate as Supplier’s unconditional acceptance thereof.
3. Commercial conditions
3.1 Supplier shall deliver the Goods and/or perform the Services against the price(s) mentioned in the Agreement. Unless expressly stated to the contrary, prices are (i) fixed and firm (ii) exclusive of any Value Added Tax but (iii) inclusive all other taxes, duties, levies, fees (including license fees), charges and inclusive all costs.
3.2 Buyer may authorize any other GNT Group Company to effect the payment due by Buyer. Such payment shall discharge Buyer from its respective payment obligation towards Supplier. In case an invoice is under dispute, Supplier has no right to postpone its obligations. Buyer has the right to set off amounts it owes to Supplier or any of its Affiliates, against amounts which Supplier or any of its Affiliates owes to Buyer.
3.3 To the extent Services are supplied at a reimbursable basis, Supplier shall keep records of all costs, expenditures and hours worked and shall provide Buyer access thereto.
3.4 Supplier shall send its invoices to Buyer within five (5) working days after the date Supplier is entitled to payment under the Purchase Order. Buyer may opt to execute the invoicing through electronic communication. Supplier will comply and act in accordance with the applicable rules, regulations and requirements, including any additional invoicing requirements.
4.1 In performing its obligations under the Agreement, Supplier shall and shall ensure that each of its subcontractors shall comply with all applicable (inter)national laws, rules and regulations, standards and orders in connection with the performance of the Agreement, including all applicable laws, rules and regulations on international trade, such as embargos, import and export control and sanctioned party lists, including but not limited to: . (A) all applicable commercial and public anti-bribery laws including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Furthermore, Supplier shall not make any facilitation payments to induce officials to perform routine functions they are otherwise obligated to perform.. (B) all applicable (inter)national privacy laws, rules and regulations, opinions and standards in connection with the performance of the Agreement. Supplier expressly warrants neither to process any personal data for its own purpose nor to involve any subcontractors in processing any personal data without prior written consent of Buyer. Buyer is entitled to audit Supplier’s compliance with these privacy laws, including without limitation, Supplier’s obligation to take appropriate technical and organizational measures to protect the personal data involved. Supplier will contribute and cooperate to the execution of such an audit and will procure that its subcontractors will contribute and cooperate also. (C) the UK Modern Slavery Act 2015 and shall take reasonable steps to ensure that there is no modern slavery or human trafficking in the Suppliers or subcontractors supply chains or in any part of their business. The Supplier represents and warrants that (a) neither the Supplier nor any of its officers, employees or other persons associated with it: (i) has been convicted of any offence involving slavery and human trafficking; and (ii) having made reasonable enquiries, to the best of its knowledge, has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking. The Supplier shall implement due diligence procedures for its own suppliers, subcontractors and other participants to ensure that there is no slavery or human trafficking in its supply chains. 4.2 Supplier shall enter into a written agreement with its subcontractors or agents that contains terms that are at least as protective of Buyer as Clause 4.1 of this Agreement. Supplier remains responsible for compliance of its subcontractors, agents and its personnel in all respects of this Agreement. 4.3 Supplier expressly warrants that it has good and marketable title to the Goods and deliverables of the Services supplied, including right to grant Buyer intellectual property right(s). Supplier holds any and all licenses, permits, end-user statements and any other documents, which are required in the country of origin, of transit and of destination to perform its obligation and will immediately notify Buyer of any legal restrictions.
Supplier guarantees that it will supply without delay and interruption the Goods and/or Services. Supplier shall immediately notify Buyer of any foreseeable delay.
6. Delivery, warranty and acceptance of Goods
6.1 Unless explicitly agreed otherwise, the Goods shall be delivered according to Incoterm DDP site Buyer.
6.2 Delivery shall be effected in adequate packaging. Costly and re-usable packaging shall be taken back by Supplier. Supplier shall timely provide Buyer with (copies of) all applicable licenses, documents, information, specifications and instructions necessary for safe and proper transport, use, treatment, process and storage of the Goods and with all certificates of analysis/conformity as customarily supplied. If applicable, stored Buyer’s Goods will be redelivered in the original quantity, state and condition.
6.3 Supplier warrants the proper functioning of the Goods and warrants that the Goods will be in conformity with the specifications and requirements, be unused, of good materials and workmanship, free from any and all defects and from any and all liens and encumbrances, pledge or right of retention and suitable for the intended purpose. These warranties shall not be deemed to exclude warranties and/or rights that Buyer may have or obtain and shall extend to Buyer and its Buyers.
6.4 Pursuant to the provisions of clause 6.3 Supplier shall repair or replace any defect or non-conformity (hereinafter “Defect(s)”) resulting from faulty design, materials or workmanship within a period of two (2) years after the date of acceptance or the date of first operational use, whichever date is later. Repaired or replaced Goods or parts will be warranted for another period of two (2) years from the repair or replacement date. If requested, Supplier shall as far as possible leave these goods in free use with its user until Supplier has delivered Goods in replacement. The warranty period shall be extended by any period(s) during which the Goods have been out of operation. 6.5 Buyer is entitled to reject any Goods, which are delivered (i) not at the agreed time, (ii) not in the agreed volume and/or quantity, (iii) in inappropriate or damaged packaging or (iv) with other defect(s), for risk and account of Supplier and without prejudice to Buyer’s right to compensation for the losses and damages suffered as a result of Supplier’s non-compliance. 6.6 Inspection, testing, acceptance or payment does not release Supplier from its obligations and warranties.
7. Performance and acceptance of Services
7.1 Supplier warrants the quality and the results of the Services. Supplier shall perform the Services in accordance with the requirements and specifications of the Agreement, observing due skill and care, using proper and well maintained materials and employing sufficiently qualified staff.
7.2 Supplier shall properly and timely instruct Buyer of any special use or treatment regarding the Services.
7.3 Only written confirmation of acceptance shall constitute acceptance of the Services performed.
8. Transfer of title
8.1 The title of the Goods and deliverables of the Services shall pass to Buyer upon delivery at the delivery point as stated in the Agreement. However, if Buyer pays for any Goods prior to delivery, title shall pass to Buyer upon payment.
8.2 The title and risk of Goods under a rental service agreement remain with Supplier.
8.3 The title of stored Buyer’s Goods under a warehousing agreement remain with Buyer. The risk of such Goods is transferred to Supplier at acceptance of the Goods and ends after delivery of these Goods to Buyer 8.4 Supplier shall identifiably store any raw materials and semi-finished goods allocated for the manufacture and or production of the deliverables and the finished deliverable itself. The risk of such goods remains with Supplier until acceptance thereof.
9. Opportunity to inspect
9.1 Supplier ensures that Buyer or its nominee has the opportunity to inspect the Goods or the manufacturing process of the Goods and/or any place where the Services or part thereof may be carried out.
9.2 Supplier diligently and continuously controls and tests the quality of the Goods and Services as well as the operations during manufacturing, storage and delivery. Supplier shall ensure that Buyer, or its nominee, has the opportunity to attend tests and/or inspect the Goods at any time.
9.3 Inspection and/or testing does not relieve Supplier of any obligation or liability under the Agreement.
10. Controlled changes
The implementation of any and all changes of and/or improvements related to the Goods and/or (performance of the) Services including (business) processes, (raw) materials (including supply source) and/or any other changes that might affect the specifications of the Goods and/or the Services require the prior written approval of Buyer. Supplier will inform Buyer well in advance of such changes and will enable Buyer to control and test the Goods.
11. Sustainability, SHE and Security
Supplier complies with and acts in accordance with all applicable safety, health and environmental instructions, avoid pollution of the soil and the groundwater, limit air and noise pollution on the Buyer site(s), comply with site and site access regulations as well as GNT (Group) (network) security regulations. Supplier must arrange for proper and safe transport and equipment, as well as skilled and qualified staff, able to speak the local languages of the Buyer and/or English, to work in a safe, healthy and environmentally responsible manner. Buyer may audit these aspects of this Agreement. Supplier shall report any irregularity with respect to safety, health and environment and security. In case of an incident, Supplier shall, under supervision of GNT (Group) immediately take all measures to clean up, isolate or prevent pollution resulting from such incident.
12. Indemnification, Liability and Force M
12.1 Supplier shall be liable and hold GNT (Group) and Buyer and their directors and employees (“Indemnified Parties”), harmless from and indemnify them against any and all actual or contingent damage, loss, injury/death, costs and claims suffered by or brought against Indemnified Parties, resulting from or connected with the Agreement, the use and/or sale of Supplier’s Goods by Indemnified Parties or any third party, the performance of the Services and the deployment of Supplier’s Services by Indemnified Parties or any third party, except to the extent that this is caused by Buyer’s willful misconduct or gross negligence.
12.2 Supplier is fully liable for the correct and timely payment of all taxes and levies indebted in connection to the performance of the Agreement and will indemnify Indemnified Parties against all claims and damages relating to its obligations concerning taxes, contributions and any claims of third parties, including the government. GNT General Terms and Conditions of Purchase – version 2018-3 3/3
12.3 In no event shall Buyer be liable for any direct and indirect damages (including but not limited to lost revenue, lost profits or other consequential or incidental damages) based upon the Agreement.
12.4 Neither party shall be liable towards the other party for any nonfulfillment of the Agreement to the extent fulfillment thereof has been delayed, interfered with or prevented by an event entirely beyond the control of the party concerned, was not for its risk and not reasonably foreseeable (“Force Majeure”), provided that the party invoking Force Majeure shall use its best efforts to fulfill its obligations by any means possible. The mere fact of late supply of materials, labor or utilities shall not be deemed Force Majeure. In case a situation of Force Majeure continues for more than thirty (30) days, Buyer shall be entitled to (partly) terminate or cancel the Agreement by written notice. Buyer may purchase similar goods and/or services from third parties during any period Supplier is unable to fulfill its obligations. The quantities affected shall be excluded from the calculation from any (minimum) volumes.
Any and all information provided by or on behalf of Buyer shall be treated as confidential and shall only be used by Supplier for the purpose of this Agreement. Disclosing information is only allowed to any of its employees or a third party on a strict need-to-know basis, except in case Supplier is required to disclose the information by virtue of a court order or statutory duty, provided that the Supplier shall immediately inform Buyer. Supplier shall upon demand promptly return to Buyer all such information. Supplier shall not retain a copy thereof. Supplier shall treat the existence of the Agreement as confidential. Supplier or its employees will sign a confidentiality agreement at request.
14. Ownership and intellectual property
14.1 Any and all information, data, property or materials disclosed to Supplier remains the property of Buyer. Supplier is not entitled to make use of or refer to any trademark, trade name, domain name, patent, design, copyright, or other intellectual property right of Buyer or any of its Affiliates, unless prior obtained written consent of Buyer. Any authorized use shall be strictly in accordance with the instructions and for the purposes specified.
14.2 Supplier warrants that the Goods and/or Services, alone or in combination, will not result in or give rise to any infringement or misappropriation of any intellectual property right of a third party. 14.3 Supplier hereby assigns by way of present and future assignment all intellectual property rights, know-how, copyrights and other rights developed by or on behalf of Supplier explicitly for or on instructions of Buyer.
14.4 All intellectual property rights to software, including source code, subsoftware and documentation, developed explicitly for Buyer or on Buyer’s instructions shall rest with or be transferred to Buyer. Intellectual property rights to other software shall remain with Supplier and Supplier shall grant Buyer a non-exclusive, non-transferable, irrevocable, perpetual and royalty free license not limited to specific equipment or location. Buyer is allowed to provide sub-licenses to other GNT Group companies.
The Supplier shall take out and maintain the insurance policies to cover the risks resulting from or connected with the Agreement. At the request of the Buyer, Supplier will provide the insurance certificates evidencing Supplier’s coverage and keep Buyer informed of any changes.
16. Termination and suspension
16.1 Buyer is entitled to suspend the performance of its obligations in whole or in part or terminate the Agreement with immediate effect, without prejudice to its right to claim damages and without any compensation to or indemnification of Supplier (i) in case Supplier has been declared bankrupt, is in a state of liquidation, has ceased or suspended whole or substantial part of its business, is subject of a court order or preventative legal scheme of settlement (ii) in case of non-compliance with clause 4, including but not limited to, import, export or chemical control regulations, anti-bribery laws, privacy laws or the provisions of safety, health, environment and security (iii) in case of not approved changes in accordance with clause 10. After such termination Buyer may return received Goods and/or Services in whole or partly against repayment and retransfer of ownership therein to Supplier.
16.2 Upon termination Supplier will return all data and all other information belonging to or provided by Buyer to Supplier and all copies of such data and information to Buyer forthwith or, at the written instruction of Buyer, will destroy all such data and information together with any and all copies of all such data and information and certify in writing to Buyer thereof.
17.1 If any provision(s) of these Conditions should be or become ineffective or invalid the other provisions will not be affected thereby. Parties agree to replace the ineffective or invalid provision(s) by a provision of similar import, which reflects as closely as possible the intent of the original clause.
17.2 Failure by either party to require strict performance by the other party of any obligation hereunder shall in no way affect its right thereafter to enforce any obligation, nor shall a waiver by either party of any breach be held to be a waiver of any previous or later breach. No waiver will have any effect unless specific, irrevocable and in writing.
17.3 Supplier shall not assign the Agreement in whole or in part without Buyer’s written consent. Such consent shall not relieve Supplier from, and shall be subject to compliance with, any of the obligations under the Agreement. Buyer is entitled to assign this Agreement or any part thereof to any GNT Group company on prompt notice to Supplier.
17.4 Nothing in the Agreement shall be deemed to constitute either party as the agent of the other or create a partnership, joint venture or employment relation between the Parties.
17.5 This Agreement shall be governed exclusively by the laws of The Netherlands with the exception of its conflict of laws principles. The United Nations Convention on contracts for the International Sale of Goods, concluded at Vienna on 11th of April 1980, shall not be applicable. Any transport of Goods to or from a warehouse which may part of the Services is subject to the provisions of the treaty governing the transport mode at matter.
17.6 Any dispute shall in first instance be submitted to the competent court of Amsterdam, The Netherlands. Pending a dispute neither party shall be excused from performing any of its obligations under the Agreement, except for obligations directly affected by the dispute.
17.7 Expiry, termination or cancellation of the Agreement shall not affect any right or obligation, which expressly or by its nature survives such expiry, termination or cancellation, including but not limited to representations, warranties, confidentiality obligations, intellectual property rights and accrued rights.
Mierlo, Friday, August 24, 2018
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