1.1 These General Conditions of Sale (hereafter called: "Conditions of Sale") apply to all offers and quotations by Bürkert-Contromatic B.V. (hereafter called: "Bürkert", to each agreement (hereafter called: "Agreement") between Bürkert and the party with which the Agreement has been concluded (hereafter called: the "Contracting Party") and to all other legal relationships between Bürkert and the Contracting Party.
1.2 Non-standard clauses of the Conditions of Sale are only applicable if and insofar as these have been confirmed in writing by Bürkert and apply only to the Agreement for which the deviation has been agreed upon.
1.3 Any changes to general (purchase) conditions by the Contracting Party are explicitly rejected, by which they no longer apply between Bürkert and the Contracting Party. Only the Conditions of Sale are applicable between Bürkert and the Contracting Party.
1.4 If, at any time, one or more provisions the Conditions of Sale are wholly or partially invalid or were allowed to become void, then the other provisions in the Conditions of Sale continue to be fully applicable. Bürkert and the Contracting Party shall then consult with each other for the purpose of agreeing on new provisions to replace the invalid or voided provisions, where the objective and the essence of the original provisions shall be retained.
2 OFFERS; CONCLUDING THE AGREEMENT; AMENDMENTS
2.1 All offers and quotations by Bürkert are non-binding, unless they contain a period for acceptance. A non-binding offer and/or quotation can still be withdrawn forthwith after acceptance. Data in brochures, price lists and on-line published information is non-binding, and explicitly subject to misprints and printer's errors and can be altered by Bürkert without prior notice. In no manner does Bürkert accept liability for the information (including but not limited to technical product information) included in a (revised) offer, quotation and/or comparable document that is incorrect.
2.2 Samples, models, drawings, colours and sizes and such are displayed or delivered by Bürkert as an indication, and the goods to be provided by Bürkert do not have to conform to them, unless specified otherwise in writing.
2.3 Each offer and/or quotation is based on the execution of the Agreement by Bürkert under normal circumstances and execution during normal working hours.
2.4 The Agreement with Bürkert is concluded after an offer and/or quotation has been accepted by the Contracting Party and Bürkert subsequently confirms the contents of the Agreement by means of a confirmation of the order or as soon as Bürkert has begun with the execution of the order, or has issued an order to third parties to that effect. If there is no written Agreement, the invoice may be deemed to render the contents of the Agreement completely and correctly.
205 If Bürkert and the Contracting Party have agreed upon an amendment to the Agreement, the Contracting Party shall reimburse Bürkert for the related costs as a result of the amendment. In the event of an amendment to the Agreement between Bürkert and the Contracting Party, Bürkert has the right to extend the delivery times, insofar as needed, in order to be able to comply with the amended delivery.
2.6 Additional work is all that which Bürkert, in consultation with the Contracting Party, whether or not recorded in writing, provides during the execution of the Agreement beyond the quantities explicitly laid down in the Agreement, or which Bürkert performs beyond the activities explicitly recorded in the Agreement.
2.7 Bürkert is entitled to amend the Conditions of Sale. Such amendments shall also apply with regard to the Agreement. The amendments shall enter into force 6 weeks after the notification, or on a later date reported in the notification, unless a non-standard legal period is required. If the Contracting Party does not wish to accept the amendment to Conditions of Sale, it is authorised to terminate the Agreement - within 8 days after notification - on the date on which the amendments would enter into force.
3.1 All prices are exclusive of VAT, other fees and/or taxes that are and/or shall be imposed by the government. Unless indicated otherwise in writing, the prices do not include the costs of assembly, testing and putting into operation.
3.2 If, after the date of conclusion of the Agreement, one or more cost price factors has increased - even when this is the result of a foreseeable circumstance - Bürkert is authorised to pass this on to the Contracting Party.
3.3 In the event of additional work as described in Article 2.6 of the Conditions of Sale, the same prices are used as agreed upon in the Agreement.
4 DELIVERY; RISK-TRANSFER; THIRD PARTIES
4.1 Unless otherwise agreed upon, an agreed-upon term of delivery shall begin on the day that Bürkert has confirmed the order in writing and the Contracting Party has done all that is necessary for the correct execution of the Agreement. Agreed-upon expected terms of delivery are not final deadlines but only estimated delivery times. Bürkert shall not be in default prior to having been notified formally in writing by the Contracting Party and having been given a reasonable term to deliver yet and this term has expired without delivery having occurred. To determine the reasonable term, in any event, but not exclusively so, account must be taken of the actual valid terms of delivery and production runs, the duration of any transport and the availability of raw materials and building materials.
4.2 The agreed-upon term of delivery shall be based on the working conditions valid at the conclusion of the Agreement and on timely delivery of the materials ordered by Bürkert for the execution of the Agreement. If, through no fault of Bürkert, a delay shall occur by a change in the intended working conditions, or because prior to the execution of the work the materials ordered were not delivered on time, the agreed-upon term of delivery shall be extended as needed.
4.3 Bürkert is entitled to deliver the goods to be delivered in instalments and to invoice these instalments individually.
4.4 All deliveries shall occur Delivered At Place (DAP Incoterms 2010), unless otherwise agreed upon in writing.
4.5 The goods to be delivered by Bürkert are for the Contracting Party's own risk as soon as they have been received by the Contracting Party. This is also the moment at which Bürkert has complied with its obligation to deliver. With the risk-transfer, the risk of theft, damage, loss or depreciation is transferred to the Contracting Party.
4.6 In the event that the Contracting Party does not accept a delivery offered by Bürkert or has given notice that it will not accept it, Bürkert is nevertheless entitled to invoice the goods concerned to the Contracting Party. Bürkert is also entitled to store (have stored) these goods at the expense and risk of the Contracting Party as long as it feels necessary, without prejudice to all other rights granted by law in connection with the attributable breach by the Contracting Party.
4.7 In the event of Bürkert having in its possession goods of the Contracting Party for, for example, repairs, inspection, etc. and these goods must be sent or transported, the risk of loss, theft, damage, loss or depreciation during that transport are for the expense of the Contracting Party.
4.8 The return of goods or any instalments thereof delivered by Bürkert to Bürkert may only occur after prior written consent by Bürkert.
4.9 Bürkert is authorised to make use of third parties for the purpose of the execution of the Agreement. Bürkert is authorised to charge the costs of the use of these third parties - with a surcharge percentage, where appropriate - to the Contracting Party.
5.1 When receiving the goods, the Contracting Party shall check whether the correct goods have been delivered in the correct amounts and should check for visible defects. If, during this check, there appear to be defects and/or any other deviation, the Contracting Party shall inform Bürkert in writing forthwith - within 48 hours after receiving the goods. If no notification of shortcomings of the goods by the Contracting Party has been received by Bürkert within 48 hours, then Bürkert and the Contracting Party agree that the goods, with the exception of any hidden defects, are deemed to comply with the Agreement.
5.2 The Contracting Party shall report any hidden defects to Bürkert in writing within 8 days after the defects are discovered or could reasonably have been discovered, at most within 90 days after the day on which the goods were delivered, failing which the goods are deemed to comply with the Agreement, including any hidden defects.
5.3 If the Contracting Party complains about the quality of the delivered goods, it should grant Bürkert the opportunity to inspect these goods and allow Bürkert, where necessary, to take samples and/or carry out tests, failing which the Contracting Party loses the right to demand compliance.
5.4 In the event of slight deviations that do not influence the normal use of the goods, the goods shall be regarded as accepted regardless of these deviations and any notification thereof, and there is no applicable default in the sense of Article 6:74 of the Dutch Civil Code. Bürkert shall nevertheless make every effort to restore the slight deviations as quickly as possible.
6.1 If the Contracting Party and Bürkert have agreed that Bürkert shall provide the assembly/installation of the goods to be delivered, the Contracting Party is accountable to Bürkert for the correct and timely execution of all furnishings, provisions and/or conditions that are necessary for the installation of the goods to be assembled/installed and/or the correct working of the goods in their assembled/installed state.
6.2 The obligation by Bürkert to perform assembly/installation of the goods delivered has the nature of a best efforts obligation.
6.3 Regardless of the provision in paragraph 1, if agreed upon by Bürkert and the Contracting Party that Bürkert shall provide the assembly/installation of the goods to be delivered, the Contracting Party shall, at its own expense and risk, ensure that:
a. Bürkert's employees are able to begin and continue to perform their activities during the installation/assembly;
b. suitable accommodation and all amenities required under government regulations and the Agreement are available for Bürkert's employees;
c. the access roads to the location of the installation are suitable for the transport needed;
d. the location designated for the installation is suitable for storage and assembly/installation;
e. the necessary lockable storage locations for materials, tools and other goods are available;
f. the necessary standard assistants, auxiliary equipment, auxiliary materials and equipment and the measuring and testing equipment standard for the business of the Contracting Party are at the correct location on time and at no cost at the disposal of Bürkert;
g. all necessary safety and precautionary measures have been taken and are upheld in order to comply with the applicable government regulations in the context of the assembly/installation;
h. at the start of and during the assembly/installation, the goods sent are available at the correct location;
i. the design data that it has submitted to Bürkert is correct.
6.4 Damage and costs (including but not limited to additional activities for Bürkert) that arise because the conditions set in Article 6.3 of the Conditions of Sale were not provided or not provided on time are for the expense of the Contracting Party. As long at the aforementioned conditions are not complied with, Bürkert is entitled to suspend its assembly and/or installation obligations.
6.5 With regard to the assembly/installation time, Article 6 of the Conditions of Sale apply accordingly.
6.6 The Contracting Party shall check the assembled/installed goods immediately after the assembly/installation has been completed. In this context, the provision regarding the delivery of goods described in Article 5 of the Conditions of Sale applies.
7 RETENTION OF TITLE
7.1 Without prejudice to the provisions in Article 4 of Conditions of Sale regarding risk transfer, all goods delivered by or on behalf of Bürkert remain the property of Bürkert until such moment that the Contracting Party has fulfilled all of its payment obligations arising from the Agreement(s) between Bürkert and the Contracting Party. Included in these payment obligations are, in any event, the price for the activities to be performed by Bürkert, as well as any late payment interest and the costs incurred for legal assistance.
7.2 As long as there is retention of title, the Contracting Party is required to keep the goods received from Bürkert separate from other goods so that they can be recognised as goods from Bürkert easily and clearly. The Contracting Party is also required to take good care of Bürkert's goods as well as to insure Bürkert's goods adequately.
7.3 As long as Bürkert continues to be owner of the goods delivered on the basis of the aforementioned provision, the Contracting Party is not permitted to dispose of the goods nor to have the goods serve as collateral to third parties. If the Contracting Party nonetheless passes the goods on or uses them serve as collateral with third parties, it must transfer the monies or the receivables acquired by the sale or collateral to Bürkert.
7.4 If the Contracting Party does not comply with its payment obligations in a timely or proper manner, is declared bankrupt, applies for a moratorium or liquidates its company, it must return to Bürkert the goods delivered by Bürkert that at that time are the property of Bürkert within 48 hours after a request to do so by Bürkert. The Contracting Party shall cooperate fully to ensure that Bürkert's property is returned to it again after it has requested this, including any disassembly.
8 SUSPENSION AND RETENTION
8.1 If the Contracting Party exceeds any payment term and/or fails to comply with its obligations in the Agreement, Bürkert is entitled to suspend the performance of its obligations until the Contracting Party has complied with its obligations or has at least has provided sufficient security for this. During the period in which the Contracting Party does not comply with its obligations arising from the Agreement, Bürkert may retain all goods belonging to the Contracting Party that at such a moment are located at Bürkert's. All reasonable costs (including but not limited to additional storage costs) that Bürkert must incur in connection with this must be reimbursed to Bürkert by the Contracting Party.
8.2 Bürkert is also entitled to exercise the rights provided in Article 7.1 of the Conditions of Sale if it has reason to believe that the Contracting Party will not comply correctly with its obligations toward Bürkert. In these circumstances, Bürkert may require of the Contracting Party that it first provide sufficient security before Bürkert needs to proceed with the execution of its obligations.
9.1 Payments shall occur within at most 30 days after invoicing, completely (including turnover tax and the applicable surcharges) and without any appeal for discount or deduction of any kind.
9.2 If the payment has not occurred within the agreed-upon period, the Contracting Party, without requiring any notice of default, is immediately in default, by which the Contracting Party owes Bürkert the legal interest on the total invoice amount with a minimum of 1.5% per month as from the date that it should have been paid up until the day of complete payment.
9.3 If the payment does not occur within the agreed-upon period, the Contracting Party also, without requiring any notice of default, owes Bürkert all (extra)judicial costs incurred in connection with this. The extrajudicial costs consist of at least 15% of the total outstanding amount.
9.4 Bürkert is at all times entitled to demand advance payments or other security from the Contracting Party for the compliance of its obligations arising from the Agreement. Any costs connected with this are for the expense of the Contracting Party.
9.5 Amounts received by Bürkert shall first be applied to reduce the costs due, subsequently to the interest due, whereas the remaining amount shall be debited from the oldest invoice, regardless of the purpose of the payment indicated by the Contracting Party.
9.6 Complaints regarding invoices from Bürkert shall be made known to Bürkert with a written statement of objections within 5 working days after the invoice date, failing which the Contracting Party is deemed to consent to the invoice. Submitting a complaint does not release the Contracting Party from its payment obligations toward Bürkert.
The application, the use and/or the processing of the goods delivered by Bürkert shall always occur under the responsibility of the Contracting Party. If the Contracting Party requests Bürkert for advice in connection therewith, this advice is always completely non-binding. The assessment as to whether goods supplied by Bürkert are suitable for the application intended by the Contracting Party therefore continues to be at the expense and risk of the Contracting Party. The Contracting Party indemnifies Bürkert for claims by third parties with regard to the advice provided.
11 INTELLECTUAL PROPERTY
11.1 Bürkert is the owner of all rights on the goods, existing and to be developed, that it uses or has obtained the right to use the goods. In connection with the agreed-upon deliveries, where applicable, the Contracting Party only obtains the perpetual, non-exclusive and non-transferrable user's rights for the specific application for which the delivery was intended and only for the use in the country in which the delivery shall take place according to the Agreement.
11.2 The Contracting Party is not permitted to remove or to alter any (trade) mark that may affect the familiar nature of the goods, or a (trade) mark of websites, databanks, equipment or materials on which patent laws, brands, trade names or other intellectual or industrial property rests.
11.3 If documents with the Bürkert trademark are processed in other goods or used in the compilation of other goods, then the Bürkert trademark must still be visible after the processing.
11.4 All intellectual property rights, including but not limited to trademarks, patents, copyrights, remain the property of Bürkert. Unless explicitly otherwise agreed upon, there is never a transfer of intellectual property rights to the Contracting Party.
11.5 Bürkert is not liable (directly or indirectly) for damage suffered by the Contracting Party as a result of claims by third parties with regard to an (alleged) infringement of intellectual property rights by third parties. In the event an appeal is made to the Contracting Party in connection with an (alleged) infringement of intellectual property rights of a third party, the Contracting Party is required to inform Bürkert about this claim immediately and (after coordinating with Bürkert) to defend itself against the (alleged) infringement.
12.1 Bürkert guarantees the reliability of the goods it delivers for a period of twelve months after the day of the delivery. Goods or components thereof that (appear to) prove to be unreliable during this period will be replaced or repaired by Bürkert. The choice of replacement or repairs is reserved for Bürkert. The replacement of (apparently unreliable) goods or components thereof must be returned to Bürkert upon request. In the event of a return, the title of the (apparently unreliable) goods is transferred to Bürkert by delivering the (apparently unreliable) goods replaced to Bürkert by reserving them for Bürkert from the moment that the Contracting Party has received the replacement goods.
12.2 The obligation on the part of Bürkert to replace goods or components it delivered on the basis of the guarantee included in Article 12.1 of the Conditions of Sale does not extend beyond sending the goods or the components thereof to be replaced. Sending the goods or components to be replaced in the context of this guarantee is at no cost within the Netherlands. The costs of sending to addresses outside of the Netherlands are passed on to the Contracting Party.
12.3 If Bürkert chooses to perform repairs, then Bürkert shall choose whether these repairs shall be done in Bürkert's factory or (the location) of the Contracting Party. The repairs on the basis of the guarantee included in Article 12.1 of the Conditions of Sale are performed by Bürkert at no cost. If the Contracting Party desires the work to be performed at location other than the location that Bürkert has chosen, the travel time and the travel and accommodation costs of Bürkert's repairers will be charged to the Contracting Party.
12.4 In respect of the repairs or revision work carried out by Bürkert, a guarantee for a period of 3 months is issued only on the reliability of the performance of the activities assigned to Bürkert after Bürkert has complied with its obligation to deliver in accordance with Article 4.5 of the Conditions of Sale.
12.5 Each claim on the guarantee is void if:
a. the defects are wholly or partially the result of incorrect, careless or improper use or due to external causes, such as fire or water damage or the result of the incorrect application of the goods delivered;
b. the Contracting Party or third parties have applied changes to the goods;
c. any of Bürkert's serial numbers have been removed or made illegible;
d. the defects are wholly or partially the result of defective or improper maintenance of the goods.
12.6 Unless explicitly agreed upon in writing, Bürkert is only held to compliance with its guarantee obligations within the Netherlands.
12.7 Each claim on the guarantee is void if a claim is not made in a timely fashion in accordance with the provisions in Article 5 of the Conditions of Sale.
13.1 Bürkert's liability is restricted to compliance with the guarantee obligation referred to in Article 12 of the Conditions of Sale. All claims for compensation, including that related to trading loss or other indirect damage, is excluded.
13.2 If, for any reason, Bürkert is held to more than compliance with the guarantee obligation as referred to in Article 12 of the Conditions of Sale, Bürkert's liability is restricted to an amount equal to the price of that which the Contracting Party must and/or should have to pay to Bürkert for the unreliable goods delivered by Bürkert. Any liability that Bürkert may have is restricted to the direct damage by the Contracting Party with a maximum of the amount of the claim to be paid out by the insurance company.
13.3 The Contracting Party is required to pay all costs, damage or interest that Bürkert may have incurred as a direct and/or indirect result of legal actions against Bürkert that were initiated by a third party regarding the execution of the Agreement. The Contracting Party indemnifies Bürkert from such claims by third parties.
13.4 With regard to matters in which Bürkert has involved a third party, the provisions applicable to the concerned agreement regarding guarantee and liability are also applicable to the Agreement between Bürkert and the Contracting Party.
13.5 The aforementioned restrictions in the liability do not apply only if there is intent or deliberate recklessness on the part of (employees belonging to the management of) Bürkert.
14 FORCE MAJEURE
14.1 Bürkert is not held to compliance to an obligation in the Agreement, including but not limited to the guarantee obligation as described in Article 12 of the Conditions of Sale, if it is prevented as a result of force majeure.
14.2 By force majeure is understood all circumstances beyond the control of Bürkert that permanently or temporarily prevent compliance with the Agreement, and, insofar as not already understood, war, danger of war, civil war, government measures, work strikes, exclusions of workers, transport difficulties, fire or other disruptions in Bürkert's business or its suppliers' businesses, the improper compliance by suppliers recommended by the Contracting Party, defectiveness of goods, equipment, programming or materials of third parties the use of which was recommended by the Contracting Party.
14.3 If a force majeure situation continues for longer than 90 days, both Bürkert and the Contracting Party have the right to terminate the Agreement. In that event, that which has already been performed under the Agreement shall be settled pro rata. In connection with this settlement, the parties shall execute payments to be made forthwith.
15 TERMINATION OF AGREEMENT
15.1 The Contracting Party and Bürkert are both entitled to terminate the Agreement subject to 3 months' notice unless otherwise agreed upon. Termination shall occur by means of a registered letter. With the termination of the Agreement by the Contracting Party, all claims by the Contracting Party toward Bürkert lapse.
15.2 Bürkert can terminate the Agreement with immediate effect or suspend its obligations toward the Contracting Party if the Contracting Party does not comply, does not comply adequately, does not comply on time or does not comply completely with its obligations arising from the Agreement. Then Bürkert shall never be obliged to pay compensation.
15.3 Bürkert can terminate the Agreement with the Contracting Party without notice of default with immediate effect in the event of (the request for) a legal debt management scheme by the Contracting Party, (the request for) bankruptcy by the Contracting Party, (provisional) suspension of payments by the Contracting Party, a mutual agreement with creditors of the Contracting Party, liquidation or cessation of the business of the Contracting Party, seizure and/or change in the control of the business of the Contracting Party.
15.4 If Bürkert or the Contracting Party terminates the Agreement, the amounts that the Contracting Party owes Bürkert at that time shall remain fully owed, regardless of Bürkert's rights to claim compensation, to make use of the rights based on retention of title and all other rights due Bürkert.
15.5 Other than in the circumstances referred to in the Conditions of Sale, a premature termination of the Agreement is not possible.
16 APPLICABLE RIGHT
The conclusion of, content of and disputes regarding the Agreement, any legal relationships resulting from this, every other legal relationship as well as the relationship between the Contracting Party and Bürkert are governed by Dutch law. The applicability of the 1980 Vienna Sales Convention is excluded.
Any disputes that arise from the Agreement between Bürkert and the Contracting Party or disputes that result from other agreements and/or collaborations between Bürkert and the Contracting Party shall initially be resolved by the Zeeland-West Brabant Court, located in Breda, regardless of Bürkert's right to seizure and take other provisional measures or have them taken at that location and that court where Bürkert wishes.