Verkoopvoorwaarden Schmalz BV

1. Introduction

1.1 These are the general terms and conditions for the purchase of goods and services of Schmalz BV, based in Hengelo OV, the Netherlands, KvK # 80902005.

1.2 These terms and conditions apply to all offers, orders and agreements for a (potential) sale of goods and/or supply of services by a supplier (‘Supplier’) to Schmalz as Purchaser (‘Purchaser’).

1.3 The applicability of general sales and/or delivery terms of the Supplier is excluded, regardless of form or name. References in offers, order confirmations and/or invoices shall have no effect.

1.4 Deviations from these conditions are only valid and binding if and insofar as the Buyer has explicitly accepted them in writing.

1.5 Where there is a contradiction between a document and these terms and conditions, a specific agreement or order document issued by Buyer (‘Purchase Order’) shall prevail. Without prejudice to the above and as a general rule of interpretation, specific and/or precise conditions shall prevail over more general conditions.

2. Offers, formation of agreements

2.1 All offers and confirmations of the Supplier are binding and irrevocable.

2.2 An agreement is only binding on the Buyer if and insofar as the Buyer has accepted the offer or placed a Purchase Order, always in writing.

2.3 The Buyer reserves the right to revoke orders placed or orders placed if the Supplier has not acknowledged receipt thereof in writing by way of an order confirmation within one week, unless the Buyer has already accepted the delivery.

2.4 References to a Supplier's quotation shall only be regarded as references to the description of the goods or services to be supplied.

2.5 A party can only rely on amendments or additions to the agreement if and insofar as they have been accepted in writing by the other party.

2.6 In the absence of an agreement, the delivery of goods and/or services shall be entirely at the expense and risk of the Supplier.

3. Prices

3.1 All prices are exclusive of VAT, but always inclusive of all other costs and duties, taxes, (import) duties, excise duties, deductions and the like.

3.2 All prices are fixed throughout the agreement and are not subject to indexation, price increases and/or price supplements, unless specifically agreed otherwise in writing. The risk of price fluctuations and market conditions on the supply market for the goods and services, including the availability of qualified personnel, whether foreseeable or not, is fully included in the agreed price.

4. Payment

4.1 Unless a payment schedule has been agreed in writing, the Supplier may send its invoice after delivery of the goods and/or services.

4.2 Invoices must include the purchase order number and comply with all legal requirements and Buyer's instructions.

4.3 Unless a different payment term is prescribed by law, a payment term of 30 days shall apply. This term commences with the receipt by Buyer of an invoice that complies with paragraphs 4.1 and 4.2.

4.4 Payment does not amount to approval, acceptance and/or delivery of goods and/or services.

5. Taxes

5.1 Supplier shall comply with obligations in accordance with labour law, social security laws and tax laws. These include the temporary payment of taxes, social contributions, levies and deductions with the delivery of goods and/or services.

5.2 The Supplier shall indemnify and hold the Buyer harmless against all claims by employees, authorities or other third parties, as well as against all costs and damages relating to a breach of paragraph 5.1 by the Supplier.

5.3 Without prejudice to paragraph 5.2, the Supplier shall take all measures to prevent the Buyer from becoming liable for claims of third parties.

6. Warranty

6.1 Supplier warrants that all deliveries are free from defects, that all goods and services are of high quality in terms of design, construction, performance, materials and quality, that they are safe and fit for their intended use and that they comply with the standards of good engineering and industrial practice, good workmanship, Buyer's requirements, applicable specifications and all relevant laws and regulations. Supplier warrants that all its personnel and other persons engaged by it in the supply of the goods and services have adequate skills, experience and abilities and are qualified in all respects for the work. Supplier warrants that the goods are unencumbered, free of title or other (limited) third party rights.

6.2 Any breach of the warranty described here shall be considered defective.

6.3 Unless otherwise agreed in writing, the warranty period is 24 months from the date of delivery. During the warranty period, the Supplier is obliged either to repair all defects or to redeliver the goods and services free of charge, unless the defect was caused by incorrect use or maintenance by the Buyer. It shall do so immediately and always within the reasonable time limit set by Buyer. The obligation to repair or redeliver is without prejudice to the Supplier's liability for damage caused by the defects.

6.4 In case of replacement or repair, the full guarantee period starts again from the moment of new delivery or repair.

6.5 The Buyer has the right to have defects repaired by a third party at the Supplier's expense, if the Buyer has reason to believe that the Supplier will not be able to fulfil its obligations in accordance with paragraph 6.1 and/or 6.3, including the obligation to repair the defects on time.

6.6 To the extent possible, the Supplier (hereby) assigns all warranty rights of manufacturers or suppliers of goods, works or services constituting (part of) the delivery to the Buyer.

7. Liability

7.1 The Supplier shall be liable for and shall indemnify and hold the Buyer harmless against all claims, costs and damages, including personal injury, damage and death, relating to and/or resulting from damage caused by

(i) Supplier, its personnel, the persons and companies it has engaged in the performance of the contract and/or

(ii) defects, including defects of tools or materials used in relation to the performance of the agreement.

7.2 The agreed time of delivery is essential. If the Supplier fails to meet the agreed delivery date, it shall be in default without notice of default and shall immediately forfeit a late delivery penalty. Unless otherwise agreed in the purchase agreement, this penalty for late delivery shall be calculated on a weekly basis at 1% of the contract value with a maximum of 10%. This penalty does not affect the Buyer's right to (a) claim damages to the extent that the actual damages exceed the amount of the forfeited penalty, (b) claim delivery of the goods or services or (c) other rights under the contract or applicable law.

7.3 The Supplier is not authorised to set off or assign claims without the Buyer's written consent.

8. Suspension, dissolution and termination

8.1 The Buyer has the right to suspend its obligations and/or dissolve or terminate the agreement in whole or in part by means of a written statement and without prior notice of default in the following situations:

(v) Supplier is in default of one of its obligations to Buyer and has failed to remedy this default within a reasonable period of time after notice of default by Buyer;

(vi) Supplier has indicated or Buyer has other reasonable grounds to believe that Supplier will not be able to fulfil its obligations in accordance with the agreement within the agreed delivery date (hereinafter referred to as expected default). The Buyer shall only exercise its rights in respect of an expected default after it has given the Supplier a reasonable time to make a proposal to resolve the situation at the Supplier's expense and in a manner acceptable to the Buyer;

(vii) In case of insolvency, (application for) suspension of payments or bankruptcy of Supplier, attachment of (part of) Supplier's property or goods intended for the performance of the agreement, closure or liquidation of its business;

(viii) When Supplier sells, transfers or liquidates an essential part of its property and/or business.

8.2 When the Buyer exercises a right in accordance with these conditions, he is only obliged to pay the Supplier the pro rata price for the goods and/or services that have already been delivered, but with regard to the goods delivered only insofar as the Buyer wishes to keep the goods and with regard to the services delivered only insofar as those services are (or will be) of actual use to the Buyer, all this without prejudice to the Buyer's right to compensation for any damage.

8.3 If the Supplier is prevented from fulfilling its obligations under the agreement for more than 30 (thirty) days due to force majeure, the Buyer is entitled to dissolve the agreement by means of a written statement against payment of the pro rata price for the goods already delivered and/or the services already provided.

8.4 The following events are examples of events that are always for the Supplier's account and therefore do not constitute force majeure for the Supplier: labour dispute other than at national or regional level, labour lock-out, labour shortage, illness, shortage of raw materials, transport problems, non-fulfilment of obligations by sub-suppliers and failures in the Supplier's production.

9. Insurance

9.1 The Supplier shall provide, maintain and pay for adequate and sufficient insurance to cover all liabilities arising from deliveries to the Purchaser, its legal relationship with any Schmalz company and/or applicable laws. The Buyer may impose additional insurance requirements on a case-by-case basis, which the Supplier shall also comply with.

9.2 At the Buyer's request, the Supplier shall provide written evidence of its compliance with paragraph 9.1.

10. No subcontracting

Without the written consent of the Buyer, the Supplier is not permitted to commission or subcontract the performance of the contract, in whole or in part, to a third party or to use the personnel of third parties.

11. Inspection and testing

11.1 The Buyer shall at all times have the right to inspect, test or try out all goods and services, or have them inspected, tested or tried out, without the Supplier charging any fees for this, regardless of where these goods are located or where these services are provided.

11.2 Inspection, testing, trials, purchase and payment by or on behalf of the Buyer shall not release the Supplier from its obligations or liabilities.

12. Deviations and changes to scope of delivery

12.1 The Supplier shall make no changes to designs or specifications unless approved or requested in writing by the Buyer.

12.2 The Supplier shall follow all instructions and make changes or additions to agreed goods or services (hereinafter called: deviations), as far as technically possible. Without prejudice to the general applicability of the above, these deviations may be changes in design, quantity, delivery schedule, specifications, conditions, requirements, etc.

12.3 All deviations will be executed and completed in accordance with the provisions of the contract and these terms and conditions.

12.4 If a deviation affects the price or delivery time, the Supplier shall inform the Buyer as soon as possible so that the Buyer can make a considered decision. If the exact impact is unclear, the Supplier shall send an initial notification, followed as soon as possible by a more specific notification. Supplier shall not be entitled to an additional price or extension of delivery time if it has failed to send the timely notifications in accordance with this paragraph 12.4.

12.5 Deviations can only lead to an increase in the agreed price or an extension of the agreed delivery time if and insofar as such an increase or extension is reasonable.

12.6 If a deviation leads to a reduction in delivery by the Supplier, the Buyer is entitled to a proportionate price reduction.

13. Information, specifications, designs and drawings

13.1 Supplier shall use its professional skills and expertise to check the accuracy, correctness and completeness of all specifications, designs, engineering, drawings and other information provided by Buyer (‘Purchase Documentation’). Supplier shall inform Buyer of the results of such verification. Any consequences of errors or omissions in Purchase Documentation shall be borne by Supplier if and to the extent a professional, experienced and skilled Supplier should be aware of the relevant error or omission after the verification in accordance with the first sentence of this paragraph 13.1.

13.2 Supplier undertakes to obtain any applicable certificates of conformity or design approval from a certification body and/or any required approvals from the authorities in a timely manner and as soon as possible.

13.3 All documentation relating to the goods and/or services such as test, inspection and quality certificates, packing lists, complete drawings, maintenance and operating instructions, manuals, lists of spare parts and the like (‘Supplier Documentation’) shall be provided with or before delivery to the Buyer, or earlier if reasonably desired by the Buyer. The Supplier Documentation shall be in Dutch unless otherwise required by applicable laws and regulations.

13.4 Supplier warrants that all Supplier Documentation is accurate, correct and free from defects. Any breach of the warranty described herein shall be deemed defective.

14. Ownership of Buyer

14.1 If the Buyer makes items available or is deemed to have made items available to the Supplier in relation to the delivery (including components, tools, moulds, documents, etc.), such items shall remain or become the property of the Buyer and the Supplier shall be obliged to clearly mark them as the Buyer's property and to handle, store and insure such items carefully. On request, a declaration of ownership shall be handed over or, if desired by the Buyer, a deed of transfer shall be signed.

14.2 The foregoing shall apply mutatis mutandis to items manufactured or purchased by the Supplier in respect of delivery and for which the Buyer has paid.

15. Delivery

15.1 All goods shall be delivered DDP (Delivered Duty Paid) in accordance with the latest version of Incoterms. Goods are not considered delivered until a representative of the Buyer has signed for acceptance of the goods. Signing for acceptance of the goods does not constitute approval and/or conformity of the goods and/or services.

15.2 The Supplier shall timely and adequately inform the Buyer of the exact time of delivery and when the delivery time may be exceeded.

15.3 Partial deliveries or earlier deliveries than the agreed delivery date require the Buyer's prior written approval.

15.4 Delivery is completed only when the agreed goods and/or services have been delivered in full in accordance with the agreement at the location designated by Buyer, including all Supplier documentation and, if applicable, signed certificates of acceptance.

16. Packaging and transport

16.1 Goods shall be marked and packed in accordance with Buyer's instructions and in accordance with the requirements of transport and destination. Goods shall be packed in such a way as to prevent damage or deterioration during transport.

16.2 The Supplier shall take back packaging at the Buyer's request.

17. Intellectual and industrial property rights

17.1 The Supplier guarantees that (the use of) the delivered goods or services do not infringe any intellectual or industrial property rights (‘IIE’) of third parties. Supplier shall indemnify and hold Buyer harmless against all claims by third parties in this respect.

17.2 Drawings, illustrations, designs, models, calculations, operating procedures, seals, moulds, tools, etc. supplied to the Buyer or manufactured on the Buyer's instructions or made by or on behalf of the Supplier in connection with the Deliverables and the related IIE shall be the exclusive property of the Buyer, who shall also be deemed to be the creator and designer thereof, all this irrespective of whether they have been charged separately to the Buyer. Supplier shall do everything necessary to endorse this right of Buyer and enable Buyer to exercise these rights.

17.3 The Supplier undertakes and warrants that neither the Supplier nor any other person shall exercise moral or other rights against the Buyer in respect of the above IIE of the Buyer and that any such moral or other rights shall be waived or extinguished.

18. Confidentiality

18.1 The Supplier undertakes to keep confidential all business and technical information originating from the Buyer and all information obtained in the context of the execution of the agreement. Such confidential information (a) shall not be shared by the Supplier with other persons and/or companies without the prior consent of the Buyer, (b) shall not be copied or used for any purpose other than the execution of the agreement, (c) shall remain the property of the Buyer, (d) shall only be used for the execution of the agreement and (e) shall be returned to the Buyer in good order and condition at the expense and risk of the Supplier upon request or upon completion of the agreement.

18.2 The Supplier undertakes to impose the same obligations on its employees and third parties who obtain the confidential information for the execution of the agreement obtain the same obligations and guarantees that such employees and third parties will comply with such obligations.

19. Business conduct, safety and environment

19.1 The Supplier, its employees and any third parties it engages shall comply with all safety and environmental regulations prescribed by the government and shall also comply with all codes of conduct, rules and regulations relating to the relevant safety, health and environmental policies followed at the work site or place of delivery. This includes compliance with generally applicable anti-corruption regulations. Costs relating to compliance with these codes, rules and regulations shall be borne by Supplier.

19.2 All accidents, environmental hazards and/or wastage at the work site or place of delivery shall be reported to the Buyer immediately.

19.3 Supplier shall comply with all applicable labour laws, including laws on wages and working hours, health, safety, welfare, immigration and emigration, and shall grant its employees all rights due to them.

20. Other conditions

20.1 All provisions of the contract which by their nature or purport are intended to remain in force after the expiry or termination of the contract shall remain in force after the expiry or termination of the contract.

21. Disputes and applicable law

21.1 The relationship between the Buyer and Supplier, including the agreement, shall be governed by the law of the country in which the Buyer has its registered office.

21.2 Any dispute between the Buyer and Supplier shall be submitted to the competent court in the place where the Buyer has its registered office, namely judicial district Almelo, the Netherlands.