In these Purchase Conditions, the terms and expressions used hereafter are defined as follows:
• Services: the service(s) that the Supplier provides to the Client, as further specified in the Agreement;
• Purchase Conditions: these purchase conditions, version 05-2022;
• Supplier: the counterparty of the Client;
• Delivery: the Goods and/or rights of use and/or property rights to be delivered by the Supplier to the Client and/or the Services and/or Work to be performed by the Supplier for the benefit of the Client;
• Materials: items that are processed into the Goods to be created, or are used in the execution of the Services and/or Work, with the exception of the Equipment to be used;
• Client: ELMA BV, user of these Purchase Conditions;
• Agreement: the written agreements between the Client and the Supplier regarding the Delivery, to which these Purchase Conditions apply;
• Parties: Client and Supplier;
• Software: any form of computer software (including source code, object code, scripts, etc.), including software built into equipment (including operating software, firmware, etc.), all documentation produced by or on behalf of the Supplier for the benefit of the Software and all new versions, updates, extensions, changes, and improvements thereof or therein, as further specified in the Agreement;
• Equipment: all vehicles, pieces of equipment, cranes, scaffolding and parts thereof, consumables and the like, which the Supplier uses in the execution of the Agreement, with the exception of the Materials to be used;
• Work: the creation of a work of a tangible nature, as further specified in the Agreement;
• Goods: the tangible objects that the Supplier delivers to the Client, as further specified in the Agreement.
a. In the event of conflict, the Agreement shall prevail over these Purchase Conditions.
b. These Purchase Conditions apply to all requests, offers, and orders regarding the Delivery, whereby the general terms and conditions of the Supplier are expressly rejected.
c. The Dutch text of these Purchase Conditions constitutes the only authentic text. In the event of a discrepancy between the Dutch text and a translation into a foreign language, the Dutch text shall prevail.
d. The invalidity of a provision of these Purchase Conditions shall not affect the validity of the other provisions of these Purchase Conditions.
a. The Client is at all times authorized, in consultation with the Supplier, to change the scope and/or the nature of the Delivery. Changes shall be agreed upon in writing.
b. If a change, in the opinion of the Supplier, has consequences for the agreed (fixed) price and/or the time of Delivery, he must inform the Client thereof in writing no later than within 5 (five) working days after notification of the requested change. If these consequences for the price and/or delivery time are unreasonable in the opinion of the Client, the Parties shall enter into consultation.
a. The Supplier may only transfer an obligation under the Agreement to a third party with the prior written consent of the Client. Reasonable conditions may be attached to this consent.
b. In the event of transfer to a third party of (a part of) the obligations under the Agreement by the Supplier, the Supplier is obliged to report to the Client which securities have been provided for the payment of VAT, wage tax, and social security contributions, which are legally prescribed for employers.
c. When engaging third parties, the Supplier remains fully responsible and liable with regard to the Delivery by these third parties in connection with the Agreement.
a. The prices are exclusive of VAT and include all costs in connection with the fulfillment of the Supplier’s obligations.
b. The prices are fixed, unless the Agreement states the circumstances that may lead to price adjustment, as well as determines the manner in which the adjustment takes place.
c. The costs of price quotes, samples, trial shipments, and sample materials are for the account of the Supplier, unless otherwise agreed
in writing.
a. Payment of the invoice, including VAT, will take place within 60 (sixty) days after receipt of the invoice and approval of the Delivery by the Client. Invoices must be submitted to ELMA BV for the attention of the accounts payable department, sent digitally to invoices@elmabv.nl and shall mention the relevant purchase order number(s) and a description of the Delivery.
b. The Client is entitled to suspend payment if he discovers a shortcoming in the Delivery.
c. The Client has the right to reduce the amount of the invoice by amounts that the Supplier owes to the Client.
d. Payment by the Client does not in any way constitute a waiver of rights.
e. In the event that the Client does not fulfill his payment obligations on time, he shall not be held to more than compensation of the statutory interest, and this shall not be due until after he has been given a reasonable period in writing by the Supplier to still fulfill his obligations.
a. Delivery takes place at the agreed time and at the agreed place. Delivery of Goods takes place according to the applicable Incoterm DDP (Delivered Duty Paid).
b. The agreed time of Delivery is of essential importance. In the event of late Delivery, the Supplier is in default without further notice of default.
c. The Supplier must immediately report any imminent exceeding of the delivery time in writing to the Client. This is without prejudice to any consequences of this exceeding pursuant to the Agreement or statutory provisions.
d. The Client has the right to postpone the Delivery. If it concerns the Delivery of Goods, the Supplier shall in that case store, preserve, secure, and insure the Goods properly packaged, separated, and recognizable.
a. In the event of an attributable breach by the Supplier, the Supplier is in default without further notice of default.
b. If the Supplier does not fulfill his obligations under the Agreement within the agreed timeframe, the Client has the right to have the Agreement executed by a third party. The Supplier shall compensate the Client for the damage that has arisen as a result of this attributable breach by the Supplier.
c. Without prejudice to the right to compensation and other statutory rights arising from an attributable breach, the Client is entitled to collect an immediately due and payable penalty of 2% (two percent) of the total price of the Agreement per day, from the day of default, with a maximum of 10% (ten percent) of the total price of the Agreement.
d. The statutory interest on amounts that the Client has paid in advance will be offset against invoices to be paid over the period of default.
e. In the event of a non-attributable breach, the obligations of both Parties shall be suspended in consultation.
f. Parties can only invoke non-attributable breaches against each other if the relevant Party informs the counterparty in writing of such an invocation as soon as possible, but no later than within 2 (two) working days after the occurrence of the non-attributable breach, while submitting the necessary supporting documents.
g. If the Supplier states that one or more of his shortcomings are not attributable to him and the Client accepts this statement, the Client nevertheless has the right to dissolve the Agreement. In such a situation, Parties shall not charge each other for damages.
h. A non-attributable breach on the part of the Supplier shall in any case not include: strikes, external network problems, defects in Software, traffic jams (not being a traffic infarct), and liquidity or solvency problems.
a. The Supplier guarantees that the Delivery complies with what has been agreed.
b. The Supplier guarantees that the Delivery complies with all relevant statutory provisions concerning, among other things, quality, environment, safety, and health.
c. The Supplier guarantees that the Goods are completely complete, ready for use, of good quality, new (unless otherwise agreed), free from defects and suitable for the purpose for which they are intended and furthermore made of sound material. He shall ensure that, among other things, all parts, auxiliary materials, attachments, tools, spare parts, user manuals, and instruction books necessary for realizing the purpose indicated in writing by the Client are included, even if they are not mentioned by name.
d. The Supplier guarantees that the delivered Goods are free from manufacturing, construction, design, and material errors for at least 2 (two) years after acceptance in accordance with Article 11 of these Purchase Conditions.
e. The warranty period mentioned in paragraph d of this article shall be extended by the time during which the Goods cannot be used due to a defect or unsuitability attributable to the Supplier. In the event of repair or replacement of the Goods or parts thereof, the full warranty period shall come into effect again with respect to these Goods or parts.
f. The Supplier guarantees that the Services and Work will be performed in a competent and professional manner.
g. Employees of the Supplier and third parties he hires meet the agreed qualification requirements regarding training
and expertise and possess sufficient relevant experience.
h. If the Client discovers that the Delivery does not (wholly or partially) comply with what the Supplier has guaranteed in accordance with paragraphs a to g
of this article, the Supplier is in default, unless the latter can demonstrate that the shortcoming cannot be
attributed to him.
a. The Supplier warrants the free and undisturbed use by the Client of the Delivery. The Supplier indemnifies the Client against all financial consequences of claims by third parties due to infringement of their intellectual and industrial property rights.
b. In the event of a violation of the provisions in the preceding paragraph, the Client shall impose an immediately due and payable penalty not subject to mitigation on the Supplier of EUR 25,000.00 (twenty-five thousand euros) per event, without prejudice to the Client’s right to claim compensation for actual damages. The amount of the penalty shall be paid by the Supplier immediately after the aforementioned determination and notification thereof to the Supplier.
c. The Supplier shall ensure that the use of counterfeit parts is excluded in his complete supplier database. If the Supplier discovers that a third party is guilty of this in any way, the Supplier must immediately inform the Client thereof.
d. The use and/or delivery of refurbished parts by both the Supplier and third parties is excluded, unless coordinated and approved in advance by the Client.
a. The Delivery of the Goods does not count as acceptance by the Client.
b. The Client is at all times entitled to inspect (or have inspected) the Goods during production, processing, and storage. The Client is also entitled to inspect (or have inspected) Materials and Equipment. Upon first request, the Supplier shall provide access to the Client, authorities, and/or inspecting bodies to the place of production, processing, storage, or the place where the Services and/or Work are performed.
c. Within 14 (fourteen) days after the Delivery, the Client shall inspect the Goods with regard to nature, condition, quality, and quantity and furthermore determine whether the Goods comply with what has been agreed between the Parties.
d. If the Goods are stored in stock or if the Goods are not used immediately and therefore inspection is not reasonably possible, then the period mentioned in paragraph c of this article shall start to run at the moment that the Client actually takes the Goods into use.
e. The Supplier shall provide his cooperation free of charge for an inspection as referred to in this article.
f. If an inspection as referred to in this article cannot take place at the intended time due to the Supplier, or if an inspection must be repeated, the resulting costs for the Client shall be for the account of the Supplier.
g. The Client shall inform the Supplier in writing within a reasonable period whether the Goods have been accepted. However, if the Client fails to inform the Supplier in writing within a reasonable period whether the Goods have been accepted by him, the Goods shall be deemed to have been accepted after the expiry of the reasonable period.
h. In the event of rejection of the Goods, the Supplier shall ensure repair or replacement of the Goods within 5 (five) working days. If the Supplier does not fulfill this obligation within the period set in this article, the Client is entitled to purchase the Goods from a third party, or to take measures himself or have measures taken by a third party at the expense and risk of the Supplier. In the event of an attributable breach, the provisions of Article 8 of these Purchase Conditions shall apply.
i. If the Supplier does not retrieve the rejected Goods within 5 (five) days, the Client has the right to return the Goods to the Supplier at
the latter’s expense.
a. The Client has the right at all times to return the (transport) packaging materials to the Supplier at the Supplier’s expense.
b. Processing or destruction of (transport) packaging materials is a responsibility of the Supplier. If (transport) packaging materials are processed or destroyed at the request of the Supplier, this shall be done at the expense and risk of the Supplier.
c. The Supplier shall collect any environmentally harmful (transport) packaging materials and/or hazardous waste from the place of Delivery free of charge and transfer these in an appropriate and verifiable manner to a recognized processing company, in accordance with applicable environmental legislation.
a. The Supplier is obliged to make accompanying documentation available to the Client prior to or simultaneously with the Delivery. Material certificates must be made available digitally via email address inkoop@elmabv.nl.
b. The Client is free to use this documentation, including reproducing it for own use.
c. Documentation is kept in accordance with applicable retention periods.
a. Ownership of the Goods passes to the Client after Delivery to the Client.
b. In the event that the Client makes materials, such as raw materials, auxiliary materials, tools, drawings, specifications, and software, available to the Supplier for the purpose of fulfilling his obligations, these remain the property of the Client. The Supplier shall keep these stored separately from objects belonging to himself or to third parties. The Supplier shall mark them as property of the Client.
c. At the moment that materials, such as raw materials, auxiliary materials, and software of the Client are processed into Goods of the Supplier, a new item is created, the ownership of which belongs to the Client.
d. The risk of the Goods passes to the Client at the moment that the Delivery and subsequently the approval of the Goods in accordance with Article 11 of these Purchase Conditions have taken place.
a. The Supplier shall, upon request and with due observance of reasonable delivery periods and at reasonable prices, make all spare and replacement parts available to the Client that are required by the Client for the Goods.
b. The Supplier shall maintain a stock of compatible spare and replacement parts for a period of 5 (five) years from the date the Goods were accepted in accordance with Article 11 of these Purchase Conditions. This provision also applies to the Software mentioned in Article 16 of these Purchase Conditions.
a. If the Delivery wholly or partially concerns Software, the Supplier grants the Client an irrevocable, non-exclusive, and perpetual license to use, execute, store, and duplicate this Software without any restrictions. License also includes the right of the Client to grant sub-licenses internally and externally.
b. The Supplier guarantees that Software does not contain viruses. In that context, the Supplier has thoroughly checked the Software and its full operation before Delivery to the Client, using, among other things, the latest antivirus programs available at the time of checking.
c. If a virus is discovered or suspected, the Supplier shall immediately inform the Client thereof and immediately take all measures to prevent or solve problems caused by the virus or likely to be caused thereby.
a. The Supplier shall comply with the following requirements regarding his personnel who perform Services and/or Work under the Agreement, whereby employees also include third parties and their employees who are hired by the Supplier or engaged by him in subcontracting:
– The Supplier shall confirm the identity of the employee according to the applicable local legal requirements and shall keep a copy of the proof of identity provided by the employee in his administration;
– The Supplier shall ensure that the employee is in possession of the required permits and the legal requirements regarding the Services and/or Work for which the employee is deployed;
– The Supplier shall verify the educational qualifications of the employee by requiring the employee to submit diplomas and certificates regarding the training courses he has followed and shall keep copies thereof in the personnel file;
– The Supplier shall have the employee sign a confidentiality agreement and shall keep a copy thereof in the personnel file;
– The Supplier shall obtain references from the employee’s previous employer(s) about his recent work history (less than 5 (five) years ago) and about his reliability, in order to assess the integrity and ethics of the employee, insofar as relevant for the intended position.
b. With regard to any non-compliance by the Supplier with this article, the Supplier shall be held to immediate payment to the Client of a penalty not subject to mitigation of EUR 10,000.00 (ten thousand euros) per event, without prejudice to the Client’s right to claim compensation for actual damages.
c. If, in the opinion of the Client, there is insufficient qualified personnel, the Client is authorized to order the removal of this personnel and the Supplier is obliged to immediate replacement, with due observance of the provisions in paragraph a of this article.
d. The hired personnel shall conduct themselves professionally and shall not express themselves negatively about the Client to third parties. If the Supplier does not fulfill this obligation, he is in default and the Client may impose an immediately due and payable penalty not subject to mitigation of EUR 500.00 (five hundred euros) per event, without prejudice to the Client’s right to claim compensation for actual damages, which penalty shall be paid immediately by the Supplier.
e. If employees of the Supplier cannot perform Services and/or Work due to leave, illness, or other absence, the Client owes no compensation for those hours.
a. Before a start is made with the execution of the Agreement, the Supplier must inform himself of the circumstances on the site and in the buildings of the Client or the client of the Client, where the Services and/or Work must be performed.
b. Costs of delay in the execution of the Agreement caused by circumstances as referred to above are for the account and risk of the Supplier.
c. The Supplier shall ensure that his presence and the presence of his personnel on the site and in the buildings of the Client or the client of the Client do not form an obstacle to the undisturbed progress of the work of the Client and third parties.
d. Before a start is made with the execution of the Agreement, the Supplier must inform himself of the content of the regulations and rules applicable on the site and in the buildings of the Client or the client of the Client, including regarding safety, health, and environment, and behave accordingly. A copy of the aforementioned regulations and rules shall be made available to the Supplier by the Client upon his request.
a. The Supplier is fully liable and responsible for the payment of all direct and indirect taxes, levies, social security premiums, and all similar insurance premiums and other payments, including any surcharges or penalties imposed by a government institution in the Netherlands or elsewhere and which are directly or indirectly connected to the execution of the Agreement.
b. Upon request of the Client, the Supplier shall provide the Client with all information regarding the withholding and payment by the Supplier of all social security premiums and wage tax which the Supplier owes with regard to the execution of the Agreement, both with regard to the personnel of the Supplier, the personnel of any subcontractors, and the personnel of any representatives.
c. The Supplier indemnifies the Client against any liability in connection with this article.
a. The Supplier is liable for all direct and indirect damage that may arise in connection with the execution of the obligations arising from the Agreement.
b. The Supplier indemnifies the Client against all financial consequences of claims by third parties in any way related to the execution of his obligations arising from the Agreement.
c. The Supplier shall at all times maintain insurance policies that cover the relevant risks in connection with (his performance under) the Agreement, and which are subject to conditions that are reasonably suitable and customary in the relevant industry. The Supplier has the duty to provide insight into the relevant policy at the first request of the Client.
a. Parties and their employees undertake to keep all information originating from the other Party secret and not to disclose it to third parties. Furthermore, Parties and their employees undertake to keep all information regarding the business operations and the enterprise of the other Party and its client(s) secret during the term and after termination of the Agreement.
b. The Supplier is not permitted (without prior written consent of the Client) to enter into business contact and/or to do business with existing customers or relations of the Client, either directly or indirectly, either for a fee or free of charge, as well as financially in any form whatsoever. This provision in any case includes the customer(s) or relation(s) for whose benefit the Client has outsourced the Services and/or Work to the Supplier.
c. Violation of this article by the Supplier and/or his employees makes them liable for a penalty to the Client. The penalty then due, without further notice of default, not subject to mitigation, amounts to EUR 20,000.00 (twenty thousand euros) per event, without prejudice to the Client’s right to claim compensation for actual damages.
a. Insofar as the Supplier, as a processor referred to in the General Data Protection Regulation, processes personal data for the Client in the context of the execution of the Agreement, the Supplier guarantees the application of appropriate technical and organizational measures, so that the processing meets the requirements of the General Data Protection Regulation and the protection of the data subjects is guaranteed. The Supplier processes personal data exclusively on behalf of and based on written instructions from the Client, subject to deviating statutory regulations.
b. Parties shall regulate the processing of personal data by the Supplier for the benefit of the Client by agreement.
a. The Client is entitled to dissolve the Agreement (partially) out of court with immediate effect by means of a simple written statement, without being held to any compensation towards the Supplier, if:
– The Supplier is in default, or performance is permanently or temporarily impossible;
– The Supplier applies for (provisional) suspension of payments or is granted (provisional) suspension of payments;
– The Supplier applies for his bankruptcy or is declared bankrupt;
– The Supplier’s business is liquidated;
– The Supplier ceases his business;
– A significant part of the Supplier’s assets is seized;
– The Supplier enters into a merger or division or is dissolved;
– Any advantage is or has been offered or provided by the Supplier or one of his subordinates or representatives to a person who is part of the Client’s company or to one of his subordinates or representatives;
– There is a non-attributable breach, as indicated in Article 8 of these Purchase Conditions.
b. The Client can furthermore terminate the Agreement at any time by means of a registered letter. Settlement shall then take place between the Client and the Supplier based on the costs reasonably incurred by the Supplier in respect of the Delivery and the obligations already reasonably entered into for the future. The Client does not have to indemnify the Supplier in any other way for the consequences of the termination of the Agreement.
a. Disputes between Parties, including those which are considered as such by only 1 (one) of the Parties, shall be resolved as much as possible by means of proper consultation.
b. If Parties do not reach a solution, the disputes shall be adjudicated by the competent court in the district in which the Client’s business is established.
Dutch law is exclusively applicable to the Agreement, of which these Purchase Conditions form a part. Foreign
legislation and treaties, such as the Vienna Sales Convention, are excluded.
