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Condiciones generales
GENERAL PURCHASE CONDITIONS BRAKEL ATMOS B.V. EN BRAKEL ALUMINIUM B.V.
Article 1 Definitions
Article 2 Applicable conditions
Article 3 Offers and agreement
Article 4 Inspections
Article 5 Additional work and less work
Article 6 Terms of delivery
Article 7 Packaging and transport
Article 8 Acceptance
Article 9 Ownership and risk
Article 10 Prices
Article 11 Payment
Article 12 Guarantee
Article 13 Attributable failure and termination
Article 14 Non-attributable failure (force majeure)
Article 15 Liability and indemnification
Article 16 Intellectual property rights
Article 17 Transfer of rights and obligations; performance by third parties
Article 18 Deployment and replacement of personnel
Article 19 Confidentiality
Article 20 Subcontracting
Article 21 Execution of work
Article 22 Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act
Article 23 Applicable law and disputes
Article 24 Miscellaneous Article 1 Definitions
In these general purchase conditions (hereinafter referred to as ‘the Conditions’), the following terms have the following meanings:
- Brakel: the private limited liability companies Brakel Atmos B.V. , Brakel Aluminium B.V. and all their affiliated companies;
- Contractor: each person or enterprise invited by Brakel to make an offer or with which Brakel has entered into an agreement;
- Principal: each person or enterprise invited to which Brakel gives an assignment, however named, and with which Brakel has therefore entered into an agreement.
top Article 2 Applicability conditions
2.1 These Conditions apply to each request, notice, agreement and all obligations with Brakel arising therefrom.
2.2 Brakel explicitly excludes the applicability of any general or specific conditions or clauses of the Contractor or third parties.
2.3 Deviations from these Conditions or this agreement may only be effected in writing by persons authorised thereto and then only apply to the specific agreement to which the deviations pertain.
top Article 3 Offers and agreement
3.1 An offer submitted by invitation of Brakel is binding and irrevocable until Brakel has or has not accepted it in writing.
3.2 Brakel will not reimburse the costs related to the submission of offers or quotations, including the costs of advice, drawings etc.
3.3 An agreement is concluded after written acceptance by Brakel of an offer and in accordance with the acceptance by Brakel.
top Article 4 Inspections
4.1 Brakel, or persons or institutions designated thereto by Brakel, is/are always authorised to carry out inspections, checks and tests at the Contractor or third parties engaged by the Contractor.
4.2 To this end, the Contractor will give access to the place where products are produced or stored or where work is done and will co-operate in the required inspections, checks and tests and will provide for its expense the required documentation and information.
4.3 If an inspection, check or test of a product and/or work leads to rejection, Brakel will inform the Contractor in writing, stating the reason(s) for the rejection. The Contractor will not be entitled to damages or any other compensation in that case.
4.4 Approval of a product and/or work will not release the Contractor from any guarantee or liability as arising from these Conditions, an agreement or the law.
top Article 5 Additional work and less work
5.1 Brakel may request alterations during the execution of the work.
5.2 The Contractor may not do more work, less work or other work than agreed, and such work will not be paid, without Brakel’s prior written consent.
top Article 6 Terms of delivery
6.1 Delivery by the Contractor shall be effected within the agreed term of delivery. As soon as the Contractor knows or should know that the agreement will not be performed, or not on time or properly, the Contractor must inform Brakel in writing without delay, stating the reason(s) for the failure to perform (on time and/or properly).
6.2 The term of delivery commences on the date of written acceptance of the offer by Brakel.
6.3 The Contractor will be in default by exceeding the term of delivery, without further notice being required, and Brakel will be entitled to damages. Brakel will in that case also have the right to terminate all or part of the agreement in writing without being obliged to pay any damages.
top Article 7 Packaging and transport
7.1 Products are delivered carriage paid at a place to be designated by Brakel, regardless of whether the place of delivery is in the Netherlands or abroad.
7.2 Delivery of products includes unloading and piling up of the products at a place to be designated by Brakel. If delivery on the Contractor’s site has been agreed, delivery includes the loading and unloading of the products in or on the means of transport.
7.3 Products are delivered in a packaging suitable for the agreed form of transport and complying with all applicable statutory rules and standards.
7.4 The Contractor is obliged to take back the packaging. The costs for returning and processing the packaging will be borne by the Contractor.
7.5 The delivery of the products must be effected during working days between 9.00 a.m. and 4.00 p.m.
top Article 8 Acceptance
8.1 On delivery of products or completion of work, Brakel will have the right to carry out an inspection. The work and/or products delivered will not be deemed delivered/accepted until after approved in writing by Brakel.
8.2 In case of rejection or refusal to accept, Brakel will inform the Contractor thereof in writing without delay. The Contractor must then be given the opportunity to show that the products concerned and or the work done fulfil the agreed requirements, such within 10 working days of the date set out in the written notice referred to in this paragraph or so much sooner as is required by work progress. The Contractor is liable for damage suffered by Brakel and/or third parties.
8.3 Brakel may always return rejected products to the Contractor or keep them until the Contractor has given Brakel further instructions regarding the products concerned, everything at the expense and risk of the Contractor.
8.4 If Brakel rejects the products and/or the work, Brakel may set a further term within which the Contractor can still effect delivery and/or execution of the work in accordance with the agreed requirements. Brakel will in case of rejection also have the right to terminate all or part of the agreement without the Contractor being entitled to any damages.
top Article 9 Ownership and risk
9.1 The ownership and the risk of products and results of services pass to Brakel at the time of delivery/acceptance as referred to in Article 8. In case of prepayment, the ownership will pass to Brakel at the time of prepayment. In that case, the risk will pass at the time of delivery/acceptance as referred to in Article 8.
9.2 If retention of title for the benefit of the Contractor has been agreed, Brakel will be permitted to further process and sell the products delivered and/or services provided insofar as customary in the normal conduct of its business.
9.3 In case of subcontracting as referred to in Article 20, the ownership and risk of the products to be delivered by the Contractor to Brakel or of the work to be carried out by the Contractor will pass to Brakel at the time when the subcontracted work is delivered as referred to in paragraph 4 of this Article.
9.4 The work subcontracted to the Contractor will be deemed delivered if the Contractor has made the work available to Brakel and Brakel has approved it and Brakel’s Principal has accepted the work as delivered.
top Article 10 Prices
10.1 All agreed prices, including the prices of additional deliveries and subsequent deliveries, are fixed and cannot be increased for any reason or on any ground.
10.2 A price increase as referred to in the preceding paragraph also means price increases - in accordance with a price index or otherwise - that the Contractor wishes to apply on account of increased salary costs, tax increases, increased costs of materials or commodities, also not if such increases are permitted by the government.
10.3 Excess of the ordered amounts by the Contractor will not lead to an obligation to make an additional payment. The Contractor is obliged to take back the surplus products at its own expense.
top Article 11 Payment
11.1 Invoices are paid within 60 days of the Contractor having fulfilled its obligations and Brakel having received an invoice that fulfils all legal requirements and is the correctness of which is not disputed by Brakel.
11.2 If Brakel wishes to contest an invoice, it will inform the Contractor thereof in writing within thirty days of receipt of the invoice, stating the reason(s) for its contesting. Brakel is authorised to suspend payment of a contested invoice until the Contractor has furnished adequate proof of the correctness of the invoice.
11.3 Payment will not be made until after the services provided by the Contractor or the products delivered by the Contracted or the delivery of the part to which the instalment to be paid pertains has or have been approved and accepted by Brakel or until after delivery as referred to in Article 9 paragraph 4 has occurred.
11.4 Brakel may always offset its debt to the Contractor with its claims against the Contractor and companies affiliated with the Contractor, also if the counterclaim has meanwhile passed to a third party. Brakel may also transfer its claims against the Contractor to a third party.
top Article 12 Guarantee
12.1 The Contractor has taken proper cognisance of the wishes and requirements of Brakel, as well as of its organisation, working methods, products, service levels, objectives and other factors/circumstances relevant to the performance of the agreement.
12.2 The Contractor guarantees, without any reservation and to the exclusion of force majeure, that all products delivered and/or services provided are of sound quality, free from defects in the materials used, complete and suitable for the purpose for which they are intended and comply with statutory regulations and provisions of the government. In addition, the Contractor guarantees that all products delivered and/or services provided are in accordance with the agreement.
12.3 The Contractor guarantees, without any reservation and to the exclusion of force majeure, that performance of the agreement, including the deployment of auxiliary persons and ancillary materials, will be sound, in accordance with laws and regulations, will fulfil all technical and other requirements and all current technical and environmental requirements.
12.4 All defects and imperfections occurring during the guarantee period, with the exception of those resulting from normal wear and tear, will be immediately and fully repaired by the Contractor on a request to that effect from Brakel. All this without prejudice to Brakel’s other rights to compensation for costs and damage and payment of interest.
12.5 The guarantee period for products is five years, counted from the date of acceptance of the products. In case of subcontracting, the Contractor must guarantee the soundness of the products delivered and/or the services provided for a period of five years from delivery by the Contractor.
12.6 If Brakel believes that the Contractor has failed to repair a defect properly and/or on time or that repair of a defect cannot be delayed, Brakel will be free to carry out the necessary repair or have it carried out a the expense of the Contractor. The damage arising therefrom, explicitly including consequential damage (for third parties), will be at the Contractor’s expense.
top Article 13 Attributable failure and termination
13.1 If the Contractor fails to fulfil any obligation arising for it under any agreement with Brakel properly or on time, the Contractor will be in default, without notice of default or judicial intervention being required, and Brakel will be entitled:
- to suspend the performance of the agreement and agreements and/or obligations directly related with it, until fulfilment of the obligations by the Contractor is sufficiently secured;
and/or
- to terminate all or part of the agreement and the agreements directly related with it. In case of termination by Brakel, the Contractor will not be entitled to any compensation, however named.
13.2 In case of a (provisional) moratorium, bankruptcy, closing down or dissolution of the business of the Contractor and in case of attachment of the Contractor’s assets by a third party, all agreements with the Contractor will be terminated by operation of the law, unless Brakel informs the Contractor within a reasonable period of time that it requires performance of (a part of) the agreement(s) concerned. If the latter applies, Brakel will be entitled to suspend the performance of the agreement, without notice of default being required, until performance by the Contractor is sufficiently secured.
13.3 If an event as referred to in Article 13.1 or 13.2 occurs, all claims Brakel has against the Contractor will become fully and immediately due and payable.
13.4 A termination as referred to in this article will not result in the lapse of Brakel’s rights as set out in one of the articles of these Conditions.
top Article 14 Non-attributable failure (force majeure)
14.1 Brakel has the right to claim immediate postponement of the dispatch or delivery of products and/or the provision of services or (suspend or) terminate all or part of (the performance of) the agreement, without any further liability, if such a postponement (suspension) or termination has become necessary or justified due to a circumstance, independent of Brakel’s will, that prevents all or part of the performance of its obligations towards the Contractor or as a result of which Brakel cannot reasonably be required to fulfil its obligations, regardless of whether that circumstance was foreseeable at the time of the conclusion of the agreement.
14.2 The circumstances referred to in paragraph 1 of this Article include: strikes and lockouts, stagnation or other problems in the production or execution of work by Brakel or third parties and/or problems in transport carried out by Brakel or third parties or measures of a government agency, as well as the lacking of any permit to be obtained from the authorities.
14.3 In case of force majeure, the Contractor will not be entitled to any compensation, also not if Brakel should benefit from the force majeure.
14.4 Brakel will inform the Contractor as soon as possible of a (possible) force majeure situation. Article 15 Liability and indemnification
15.1 The Contractor is liable for each disadvantage, costs, damage, of whatever nature, explicitly including consequential damage (to third parties), caused to Brakel, its personnel or third parties, arising from the performance of or related to the agreement, on whatever ground, including without limitation, damage resulting from the failures referred to in Articles 12 and 13.
15.2 The Contractor must take out and maintain sufficient insurance against the liability referred to in this article. If requested by Brakel, the Contractor will immediately give insight into the policy, the receipts for payment of the premiums and (future claims regarding) payments or insurance monies transferred to Brakel.
15.3 The Contractor will indemnify Brakel against all claims from third parties, including claims from the Principal, of whatever nature and on whatever ground.
15.4 Each liability of Brakel on whatever ground is therefore limited to an amount of EUR25,000 per damage-causing event, a series of related events counting as one event.
top Article 16 Intellectual property rights
16.1 All drawings, schemes, models, calculations, designs, software etc. originating from Brakel or made by the Contractor on the orders of Brakel (hereinafter referred to as ‘documentation’) are owned by Brakel, and the intellectual property rights are held by Brakel. The Contractor may not use or copy the documentation or provide or disclose it to third parties. If requested by Brakel, the Contractor must return all documentation to Brakel within 24 hours.
16.2 If the Contractor violates the provisions of Article 16.1, the Contractor will owe Brakel an immediately due and payable penalty of EUR 45,000 per violation, without any judicial intervention being required and without prejudice to other rights accruing to Brakel.
top Article 17 Transfer of rights and obligations; performance by third parties
17.1 Brakel may transfer the rights and obligations described in an agreement with the Contractor to a third party. The Contractor may not transfer its rights and/or obligations under an agreement to a third party without the prior written consent of Brakel.
17.2 The Contractor may not have all or part of the agreement performed by a third party without the prior written consent of Brakel.
In case of performance of the agreement by a third party, the Contractor will remain liable for performance of the agreement.
top Article 18 Deployment and replacement of personnel
18.1 All personnel deployed by the Contractor falls under the direct supervision and responsibility of the Contractor. During the execution of the work, there must always be a person representing the Contractor. His or her name as well as the names of the persons deployed at the work by the Contractor must be communicated to Brakel and the local building management.
18.2 The Contractor will only deploy own personnel for the performance of an agreement. Replacement of personnel by the Contractor during the performance of an agreement is not permitted without he prior written consent of Brakel.
18.3 As soon as Brakel believes that the personnel deployed by the Contractor does not (or no longer) have the required qualifications or is not prepared or able to execute the work properly, the Contractor must replace them if requested by Brakel.
18.4 Replacement of personnel can only be effected if the replacing personnel is at least equivalent in terms of training, experience and expertise to the personnel originally deployed. The Contractor cannot charge the costs of induction training for the replacing personnel to Brakel. Replacement of personnel may not interfere with the continuity of the performance of the agreement.
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Article 19 Confidentiality
19.1The Contractor guarantees that it will observe confidentiality towards third parties with regard to all data and affairs that Brakel considers confidential and come to the knowledge of the Contractor’s personnel or third parties engaged by it when concluding and/or performing an agreement. Confidentiality must also be observed with regard to data and affairs the confidentiality of which the Contractor should reasonably assume, also if it was not explicitly communicated to it.
19.2If the Contractor violates the provisions of paragraph 1 of this article 1, the Contractor will owe Brakel an immediately due and payable penalty of EUR 50,000 per violation, without any judicial intervention being required and without prejudice to other rights accruing to Brakel.
top Article 20 Subcontracting
20.1 If the agreement concluded with the Contractor pertains to work that the Contractor executes as subcontractor, the provisions of this Article and Article 21 also apply.
20.2 The Contractor declares to be fully aware that the agreement pertains to and is directly related to an agreement concluded between Brakel and the Principal. In this context, the Contractor declares to be fully aware of the contents of the agreement concluded between Brakel and the Principal, more in particular the specifications and the conditions contained therein.
20.3 If an agreement between Brakel and the Principal imposes obligations on Brakel, those obligation are imposed on the Contractor by analogy and apply by analogy to and form part of an agreement, insofar as such an agreement does not include provisions or clauses to the contrary.
20.4 The Contractor declares to be familiar with all statutory and other regulations that Brakel must comply with and observe pursuant to the agreement it concluded with the Principal. The Contractor will comply with and observe those statutory and other regulations.
20.5 The Contractor will refrain from making statements to the Principal about the contents of any existing or former co-operation between the Contractor and Brakel or about the contents of an agreement.
20.6 The Contractor may not enter into an agreement with the Principal, regardless of the subject of the agreement, without the prior written consent of Brakel.
20.7 If the Contractor violates the provisions of Articles 20.5 or 20.6, the Contractor will owe Brakel an immediately due and payable penalty of EUR 45,000 per violation, without any judicial intervention being required.
top Article 21 Execution of work
21.1 The Contractor is obliged to follow only orders and instructions issued by or on behalf of Brakel.
21.2 Without prejudice to the provisions of paragraph 1 of this article, Brakel may request its Principal and/or the management of the work to give its orders and instructions directly to the Contractor, in which case the latter will be bound by them. Brakel will inform the Contractor in writing of a request as described above.
21.3 The Contractor is obliged to follow the instructions of the Health and Safety Inspectorate as well as of any advisor engaged by Brakel regarding the organisation of the building site, among other things with regard to storage and safety of materials and the work to be executed.
21.4 Days of rest and holidays, vacations and other days off, of a general nature or applicable in the work place or prescribed by the authorities or a CBA, will also apply to the Contractor and its personnel executing the work. Brakel is not liable for damage suffered and/or costs incurred by the Contractor as a result thereof.
21.5 The work to be executed/deliveries to be made by the Contractor must be effected during the working hours applicable in the work place.
top Article 22 Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act
22.1 Insofar as the Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act applies to an agreement, as referred to in Articles 34 and 35 of the Collection of State Taxes Act 1990 or Articles 16a and 16b Social Security (Coordination) Act, the Contractor will have the following special obligations.
a. To have and show on Brakel’s request:
- proper evidence that the Contractor is registered with a social security administration agency;
- a licence to establish a business, insofar as required;
- proof of listing in the Commercial Register;
- an original G-account agreement, insofar as required, stating the institution where it is held;
- a statement with the turnover tax number and wage tax number.
b. periodically submit on Brakel’s request statements setting out the names and registration numbers of all persons deployed by the Contractor from week to week in connection with an agreement, with their working hours, all this in accordance with the model forms to be provided by Brakel.
c. On Brakel’s request provide for inspection the salary slips and/or time sheets.
d. Show each time on Brakel’s request and/or on the Contractor’s own initiative, at least once a quarter, a statement regarding payments to the industrial insurance board, as well as show a statement regarding the payment of wage tax and social insurance premiums as referred to in the guidelines laid down pursuant to the Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act.
22.2 Brakel may always pay the Contractor the social insurance premiums and wage tax to be paid by the Contractor in respect of the work, for which the Contractor is liable pursuant to the Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act, by transfer to the Contractor’s G-account within the meaning of the Wages and Salaries Tax and National Insurance Contributions (Liability of Subcontractors) Act or by transfer directly to the relevant Social Insurance Board or collector of Direct Taxes.
22.3 In the case referred to in the preceding paragraph, Brakel will be discharged from its payment obligations towards the Contractor. Article 23 Applicable law and disputes
23.1All applications, notices, agreements and all Brakel’s obligations arising therefrom are governed by Dutch law. Applicability of the Vienna Sales Convention (TRB. 1981, 184) is explicitly excluded.
23.2A dispute exists if either party indicates in writing that there is one, briefly stating what it believes to be the subject of the dispute. Any dispute between the parties with regard to an offer or agreement and all related acts and/or resulting arrangements will be settled exclusively by the competent Court in Amsterdam. The parties may agree, however, to submit a dispute to arbitration.
top Article 24 Miscellaneous
24.1If one of the provisions of these Conditions is void, the validity of the other provisions will not be affected. The void provisions are replaced with new provisions which are as much as possible similar to the old and void provisions in terms of content, scope and purport.
24.2If Brakel enters into an agreement with two or more natural persons or legal persons, each of those (natural or legal) persons will be jointly and severally liable for fulfilment of the obligations arising from that agreement.
24.3Brakel’s failure to demand compliance with a provision within a term stated in the agreement does not prejudice its right to still demand compliance, unless Brakel has explicitly and in writing consented to the non-compliance.
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