GENERAL TERMS OF AMPHITEC B.V.
Registered in Rotterdam.
Article 1. Applicability
1.1 These general conditions shall apply to all legal relations of Amphitec B.V. (hereafter called Amphitec).
1.2 The applicability of any general conditions to which the customer should refer in any way is expressly rejected.
Article 2. Price and Payment
2.1 All Amphitec’s prices and amounts are exclusive of turnover tax.
2.2 The customer shall be obliged to pay the invoices that Amphitec submits in the manner as stated on the invoice and the currency in which the agreed prices have been expressed.
2.3 The cost of returning goods for whatever reason shall be for account of the customer.
2.4 The customer shall make the payments due to Amphitec without any discount or reliance on set-off except for set-off against deductible advances which he has supplied to Amphitec.
2.5 Every payment of the customer shall serve primarily for payment of the interest payable by it and also the judicial and extra judicial expenses, as provided in the following article and shall thereafter be deducted from the oldest claim outstanding. If the 30-day term of payment is exceeded, the customer shall owe interest on the invoice amount at the rate of the statutory interest increased by 3%.
2.6 All expenses associated with collection shall be for account of the customer. Apart from the expenses to which the customer will be condemned in pursuance of the sections 56 and 57 of the code of Civil Procedure, he shall also owe all the expenses actually made by Amphitec with as a minimum the expenses calculated in accordance with the collection rate of the “Nederlandse Orde van Advocaten” (Dutch Bar) with a minimum of € 250,–.
Article 3. Security
3.1 On Amphitec’s first demand the customer shall be obliged to give security in any form desired by Amphitec for the full performance of it’s obligations in respect of agreements performed or yet to be performed in full or in part by Amphitec. If the customer does not comply with this, without prejudice to our other rights, everything it owes us for whatever reason shall become payable at once.
Article 4. Delivery
4.1 Delivery to the customer shall be effected from the establishment in Hendrik Ido Ambacht.
Article 5. Transport
5.1 The customer shall see to the transport of the goods. The transport shall be at his expenses and risk. The customer must see to a proper insurance of the goods in connection with the transport.
Article 6. Reservation of Ownership
6.1 The ownership of the goods supplied by Amphitec to the other party shall remain with Amphitec as long as the customer has not fully met its obligations of payment resulting from any agreement with Amphitec whatsoever.
6.2 If Amphitec invokes the reservation of ownership, the agreement shall be dissolved without prejudice to Amphitec’s right to compensation.
Article 7. Claims and warranty
7.1 Claims are to be made in writing, within 14 days after delivery of the goods. The goods may only be returned after our written permission, subject to conditions to be stipulated by us.
7.2 Amphitec warrants the soundness of the goods supplied by it for 12 months after delivery.
7.3 The warranty for goods supplied shall be limited to material, manufacturing and structural defects in which case Amphitec only undertakes to repair or replace the defective parts in her establishment Hendrik Ido Ambacht.
7.4 The customer must return the goods for replacements or repair to Amphitec’s establishment in Hendrik Ido Ambacht at the customer’s expense.
7.5 If work is to be done outside Amphitec’s establishment in Hendrik Ido Ambacht, call out charges and labour shall be charged.
7.6 Amphitec will not give another warranty for goods or parts replaced or repaired.
Article 8. Intellectual and industrial property rights and know-how
8.1 All rights of intellectual and industrial property and know-how that rest or may rest on particulars recorded in any form whatsoever and in any carrier of information whatsoever and which have been obtained directly or indirectly by the customer in connection with a legal relationship with Amphitec shall remain vested in Amphitec.
8.2 The customer shall be obliged to keep secret all the particulars on which rights rest or may rest as referred to in paragraph 1 of this article. This secrecy shall also include the prohibition to allow others than those directly concerned to inspect the relevant matters.
Article 9. Liability
9.1 Amphitc’s liability on the strengths of the agreement shall be explicitly limited to the warranty obligations described in article 7.
9.2 If nevertheless a more extensive liability should rest on agreement this liability shall be limited to the amount to which Amphitec is insured by virtue of the commercial liability insurance.
9.3 If Amphitec were to invoke the provisions of this article any of our employees against whom a claim is brought may also invoke it as if they were parties to the agreement themselves.
Article 10. Force Majeur
10.1 Force majeur shall inter alia but not only be any strike by Amphitec’s personnel or others, delay in production for whatever reason and any other event that is beyond Amphitec’s control in reason.
10.2 If the Amphitec’s proper fulfilment as a result of one ore more circumstances that are not for Amphitec’s account, including the circumstances mentioned in the preceding paragraph, is entirely or partially impossible:
a. In the event of temporary impossibility Amphitec shall have a choice between dissolving the agreement or performing the agreement as yet at a later date provided this is done no later than 6 months after the commencement of the temporary impossibility.
b. In the event of permanent impossibility Amphitec shall have the right to dissolve the agreement.
Article 11. Limitation
11.1 Any right of claim and defence vis-à-vis Amphitec shall be limited by the mere laps of one year after delivery.
Article 12. Conflicts
12.1 Any conflicts that should arise in connection with this agreement or further agreements that should result from it or from these general conditions shall be decided in the first instance only by the District Court of Rotterdam, in so far as they lie within the jurisdiction of a District Court.
12.2 Dutch law shall apply to the agreement.
Article 13. Filing of general conditions
These general conditions have been filed at the Chamber of Commerce in Rotterdam under number 24325474 on 10-12-2006.
Terms of Supply
1. Applicable Conditions
These General Purchase Conditions apply to all requests for offers, orders, and contracts regarding the Supply of items to and the performance of additional activities (hereinafter referred to as the ‘Supply’) intended for Amphitec B.V. or its subsidiaries (hereinafter referred to as ‘Amphitec’). Any deviations or additions to these General Purchase Conditions require the explicit written permission of Amphitec. If Amphitec does not only purchase items, but mainly activities and/or services, the Amphitec General Conditions for the Purchase of Items, Activities, and Services apply instead of these General Purchase Conditions.
2. Order and Order Confirmation
Amphitec retains the right to withdraw any order it placed if the supplier fails to confirm the order in writing by means of an order confirmation within two weeks after receipt of the order. If the order confirmation deviates from the original order, Amphitec will only be bound by it after it has explicitly expressed its agreement about the deviation in writing. Amphitec’s acceptance of any deliveries or performances as well as any payments made in this connection does not imply the acknowledgement of the deviations. Amphitec does not return any documentation or samples it has received together with an offer.
3. Quality and State of the Supply
The supplier guarantees that:
- If the Supply concerns the delivery of items, the items will be of good quality and free of any defects and, if the Supply concerns the performance of activities, these activities will be performed by skilled staff with the use of new materials;
- The Supply is entirely in conformity with the provisions in the contract, the specifications stated, and Amphitec’s reasonable expectations regarding properties, quality, and reliability;
- The Supply is suitable for which it is intended by its nature or as is evident from the order;
- The Supply complies with all the requirements prescribed by Dutch law and all other national or international regulations;
- The Supply complies with all accepted practices and standards prevailing in the relevant branch of trade or industry;
- In conformity with the relevant EU Directives, the Supply complies with CE marking or the EC declaration on conformity for machinery / safety components or the “Manufacturer’s Certificate” ;
- It will provide the Declaration of CE Conformity.
If in the contract reference is made to technical, safety, quality, environmental or other regulations and documents which have not been attached to the contract, the supplier is deemed to be familiar with them, unless the supplier informs Amphitec immediately of the contrary in writing. In that case, Amphitec will provide further information on these regulations and documents. The supplier is to ensure that it obtains all permissions, licences or permits required for the performance of the contract and the conditions included therein in good time and for its own account.
4. Intellectual Property Rights; Licences
If the Supply or the accompanying documentation is subject to intellectual property rights, Amphitec will acquire the right to use it free of charge by means of a non-exclusive, worldwide, perpetual licence. All intellectual property rights created as a result of the execution of the Supply by the supplier, its staff, or third parties engaged by the supplier to perform the contract will be vested in Amphitec. On Amphitec’s demand, the supplier will be obliged to do everything required in this respect to acquire and secure these rights. The supplier guarantees that the Supply does not infringe any intellectual property rights of third parties. The supplier will indemnify Amphitec against claims from third parties for any infringements, or alleged infringements, in this respect and it will compensate Amphitec for any loss suffered as a result of this.
5. Packaging and Shipment
The supplier will package the items to be supplied as economically, securely, and carefully as possible and in such a manner that the shipment is manageable during transport and unloading. The supplier will ensure that the Supply reaches the place of destination in a good state. Pallet shipments must be effected on euro-size pallets, so-named ‘euro pallets’. In order to encourage the reuse of packaging, the supplier must use as much neutral packaging without print as possible. The packaging must be suitable for reuse or recycling. Special packaging that must be returned to the supplier must be marked as such.
Packaging, transport, storage, and processing of the Supply must comply with the applicable legislation and regulations on safety, environment, and working conditions. If there are safety information sheets that relate to the Supply or the packaging, the supplier must always provide these sheets immediately along with the Supply or otherwise.
The supplier will mark the shipment with Amphitec’s order/reference number and the number of packages as well as the correct name and address details of the delivery address. The exterior of the packages will be provided with a packing list stating the contents of the shipment. Amphitec has the right to refuse any Supply that does not comply with these requirements.
The Supply is effected ‘Delivery Duty Paid’ (carriage paid), in accordance with the version of Incoterms applicable at the time of the order, without prejudice to the provisions in these conditions. Partial deliveries are not permitted, subject to Amphitec’s written permission. The delivery date(s) or delivery period(s) specified in the contract must be considered strict and final and apply to the Supply as a whole, including any related drawings or other documents. If circumstances arise on the basis of which it may be expected that the agreed delivery date(s) or delivery period(s) may be exceeded, the supplier is to notify Amphitec hereof immediately. If the supplier exceeds any agreed delivery date(s) or delivery period(s), Amphitec has the right to impose a penalty of 1% of the price of the Supply on the supplier without prior notice of default for each calendar week or part thereof that such a breach continues, to a maximum of 10%, which penalty will be immediately due and payable on the date of imposition. The imposition, collection, or set-off of this penalty does not affect Amphitec’s right to performance, compensation, and termination.
Amphitec has the right to have the Supply inspected or audited by its officers designated as such at the supplier prior to delivery. The supplier is obliged to render the required cooperation. The supplier is not entitled to derive any rights from the results of a prior inspection. Amphitec has the right to inspect the Supply upon delivery at the agreed place prior to acceptance. If the Supply is rejected, Amphitec will notify the supplier hereof and Amphitec may decide whether to require replacement or repair or to terminate or cancel the contract. None of this affects Amphitec’s right to compensation. All costs incurred in connection with the inspections and reinspections are payable by the supplier, except the costs of the inspection officers designated by Amphitec.
8. Passing of Ownership and Risk
The supplier bears the risk of the Supply until it has arrived at the agreed place of delivery and has been accepted by Amphitec in writing by a person authorised to this end stating his/her name. The ownership of the Supply will pass to Amphitec at the time of delivery. Any models, struts, matrices, moulds, forms, calibres, drawings and such like purchased or manufactured by the supplier for the purpose of the Supply will be deemed to have been made available to the supplier by Amphitec at the time that these articles are supplied to or manufactured by the supplier. If Amphitec makes items available, or is deemed to have made items available to the supplier for the purpose of the Supply, these items will remain or become the property of Amphitec and the supplier will be obliged to keep these items – clearly marked as Amphitec’s property – in its custody and to submit to Amphitec a certificate of ownership if so requested. Items created by assembling, mixing or otherwise will become the property of Amphitec at the time of their creation. The supplier will be deemed to have formed these items for Amphitec and it will retain these new items as Amphitec’s property and submit to Amphitec a certificate of ownership if so requested.
9. Price, Invoicing, and Payment
The agreed price is fixed in euros and exclusive of turnover tax. Invoices must be submitted stating the order number, in conformity with the order and specified per position under statement of position number(s). If these details are absent, Amphitec has the right to suspend its obligation to pay. Any duplicate bills must be marked as such. Amphitec will pay 60 days after acceptance of the Supply and after correct invoicing. Payment does not in any way entail relinquishment of any right to get back to the execution of the order. Amphitec has the right to set off any debts payable by the supplier against the debts Amphitec has to pay to the supplier. Amphitec may demand a security payment or bank guarantee at the expense of the supplier before it makes the goods available or if whole or partial advance payment is effected. The supplier of a project will keep the accounts in such a way that it will be possible to establish the actual wage costs. These wage costs will be specified on the invoice. In specific cases to be determined by Amphitec, it has the right to pay part of the price, either through a blocked account or directly to the relevant Industrial Insurance Board and Tax and Customs Administration. The portion concerned relates to the amount for which Amphitec – in its estimation – is jointly and severally liable pursuant to the Dutch “Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act (Wet ketenaasprakelijkheid) or any other regulations. The supplier will indemnify Amphitec against all claims by the relevant Industrial Insurance Board and Tax and Customs Administration in this respect.
10. Changes, Contract Extras and Reductions
Amphitec has the right to change the scope of the Supply, also if this results in contract extras or contract reductions. If the supplier is of the opinion that the change has consequences for the agreed price or delivery, it will notify Amphitec hereof immediately in writing and, in the event of contract extras, it will submit a written offer for the price and delivery period attached to this as well as the consequences for the other activities to be performed by the supplier. The supplier shall not perform any contract extras until it has received a written order to this end from Amphitec. Contract extras do in any case not include any additional activities which could or should have been foreseen by the supplier upon entering the contract in order to be able to supply the agreed performance(s) and functionality/functionalities or which are the result of a shortcoming on the part of the supplier.
The supplier is liable for all loss suffered by Amphitec as a result of the supplier’s attributable failure to perform the contract or its failure to perform it properly or in time or as a result of the supplier’s violation of any other contractual or non-contractual obligation. The supplier will indemnify Amphitec against any claims by third parties in this respect.
The liability of the supplier is limited to an amount of EUR 1.5 m or, if this amount is higher, the contract price for each loss-causing occurrence, except in the event of personal injury or loss caused by wilful conduct or gross negligence.
The supplier undertakes to sufficiently insure its statutory and/or contractual liability against Amphitec and maintain adequate insurance cover in this respect and to furthermore insure and maintain adequate insurance cover for all risks in its business operations that may be insured on normal condition. At the request of Amphitec, the supplier will immediately submit the policies and proof of premium contributions or certified copies hereof. The supplier hereby assigns to Amphitec in advance all claims to payments of insurance money, insofar as these payments relate to the loss for which the supplier is liable against Amphitec.
Without prejudice to any other rights to which Amphitec is entitled, Amphitec has the right to terminate the contract wholly or in part, without further notice of default, by means of a written notice in the following cases:
The supplier fails to comply with one or more obligations arising from the contract;
The supplier has been declared insolvent, has applied for a moratorium, has ceased or wound up its business activities; a substantial part of the supplier’s assets has been attached; or the supplier has transferred its business activities to a third party;
The Supply has been rejected after inspection or reinspection.
In the event of termination, the supplier will continue to bear the risk of the items already supplied. In that case, the items will be at the disposal of the supplier and must be collected by it. The supplier will immediately refund the amount that has already been paid by Amphitec in connection with the terminated contract.
If it becomes apparent within the guarantee period that the Supply does not comply with the provisions referred to in Article 3 of these Conditions, the supplier will be obliged to replace, repair, or reexecute the Supply on demand at the option of Amphitec within two weeks, without prejudice to the rights to which Amphitec is furthermore entitled pursuant to the law. If the supplier fails to comply with its guarantee obligations, Amphitec will have the right to replace, repair or reexecute the items at the expense of the supplier, whether with or without the aid of third parties. Amphitec will notify the supplier that it will exercise this right as far as possible in advance.
If the parties did not agree on a guarantee period, the guarantee period will be 12 months from the delivery date or completion date. In respect of items intended to be incorporated in installations or systems, the guarantee period will not commence until the installations or systems are actually completed or delivered, provided that the guarantee period will end within not more than 24 months after the delivery date of the items.
The guarantee period will be extended by the period in which the Supply failed to comply with the provisions referred to in Article 3 of these Conditions. Any parts of a Supply that have been replaced, repaired or reexecuted will be subject to the same guarantee period as the original period.
14. Confidentiality and Obligation to Provide Information
The supplier will provide Amphitec all information on the Supply that may be of importance to Amphitec. The supplier undertakes not to provide any confidential information on the Supply to its own employees or to third parties, unless Amphitec has granted prior written consent to this end. The supplier is not permitted to use Amphitec’s name in advertisements and other commercial communications, without Amphitec’s prior written consent.
15. Transfer of Rights and Obligations; Subcontracting
The supplier undertakes not to subcontract the Supply or parts thereof to third parties, nor to transfer its rights and obligations arising from the contract, wholly or in part, without Amphitec’s prior written consent. 16. Applicable Law, Disputes.
Contracts between Amphitec and the supplier will be governed by Dutch law. Any disputes between Amphitec and the supplier will settled exclusively by the District Court in Rotterdam.