General terms and conditions of purchasing
Article 1 Applicability
1.1 These general terms and conditions apply to all enquiries, quotations and contracts in which Brink Climate Systems B.V. or one or more of its subsidiary companies and/or holdings (further to be designated 'Brink'), acts as buyer of goods and/or services (further to be designated 'goods').
1.2 Exceptions to these terms and conditions may be agreed only in writing.
1.3 General terms and conditions, however designated, of Brink’s other party (further to be designated 'other party') shall be explicitly inapplicable.
Article 2 Establishment of contracts
2.1 An enquiry from Brink shall result in an irrevocable quotation from the other party.
2.2 When a written order follows a quotation from the other party the contract shall be established at the moment that Brink dispatches the order.
2.3 When Brink places a written order without a prior quotation from the other party the contract shall be established when within 5 working days of dispatch of the order Brink receives the signed written order acknowledgement from the other party. The contract shall then be established at the moment of receipt of the order acknowledgement.
2.4 In cases where a contract is verbally concluded, the execution of the contract shall be deferred until the moment that Brink dispatches the written acknowledgement of the order.
2.5 For master contracts the contract shall be established in all cases at the moment that Brink dispatches the order for a (part) delivery within the context of the master contract.
2.6 When and insofar as the procedure stipulated in paragraphs 1 through 5 of this article are conducted by E-mail (electronic data transmission) or fax, the E-mail and fax messages shall be deemed to be equivalent to written documents.
2.7 When for the execution of the contract drawings, specifications, instructions, inspection regulations and the like provided or approved by Brink are employed these shall constitute part of the contract.
Article 3 Prices
The prices agreed are fixed and may not be set off, are designated in Euros, including packaging, exclusive VAT and are based on the delivery condition 'delivered duty paid' (DDP) at the delivery location agreed.
Article 4 Delivery
4.1 For the interpretation of the terms and conditions of delivery the 'Incoterms', edition 2000, published by the International Chamber of Commerce in Paris shall apply.
4.2 Delivery shall be DDP at the delivery location agreed, precisely at the time agreed, or within the period agreed.
4.3 As soon as the other party knows or should know that it will fail to fulfil the contract it shall inform Brink immediately specifying reasons. Notwithstanding Brink’s right as stipulated in article 16, parties shall determine whether, and if so, the situation that has arisen can be resolved to Brink’s satisfaction.
4.4 The other party undertakes to inform Brink in writing at least two years before the moment at which it removes an item from its product range. During that period of two years the other party shall guarantee the unrestricted supply of the item in question under the terms and conditions agreed and shall make the necessary efforts to offer Brink an alternative item of at least the same price and quality.
4.5 Should Brink request the other party to postpone delivery, the other party shall store, secure and insure the goods properly packed and recognizably intended for Brink.
4.6 Under delivery shall also be included all accompanying documentation such as drawings, quality, inspection and warranty certificates, service manuals, instruction books and manuals.
4.7 Under delivery shall also be understood in this article part deliveries. The other party shall be entitled to make part deliveries only with Brink’s prior permission.
4.8 Inspection of goods as per article 11 implies neither delivery nor acceptance.
Article 5 Packaging and shipment
5.1 The goods must be correctly packaged in order to reach their destination in good condition. The other party shall be liable for damage caused by inadequate packaging.
5.2 The other party shall stipulate on the (outer) packaging and documents the Brink order number and when known the appropriate Brink article number. Brink shall be entitled in the absence of such notifications to refuse to accept the delivery involved.
5.3 The other party shall be obligated to employ environmentally friendly packaging materials. When environmentally friendly packaging materials cannot be used the other party must notify Brink beforehand of this in writing, giving reasons for this. Superfluous packaging material should be avoided.
5.4 Brink shall be entitled at all times to return packaging materials to the other party. Return shipment of packaging material shall be for account and risk of the other party to a destination that latter specifies.
Article 6 Title
6.1 The title to the goods transfers from the other party to Brink at the time of delivery.
6.2 Brink shall be entitled to require that transfer of title to the goods and/or materials and parts intended for them takes place earlier. The other party shall then mark the goods and/or materials and parts intended for them for its account as recognizable property of Brink and indemnify Brink for loss, damage and exercise of rights by third parties.
Article 7 Accessories
7.1 Materials, drawings, models, tools, moulds, stamps, instructions, specifications and other accessories supplied by Brink or procured or produced by the other party for the purpose of the delivery to Brink shall remain and/or become the property of Brink at the moment of procurement or production.
7.2 The other party shall be obligated to mark the accessories stipulated in the previous paragraph as recognizable property of Brink, to maintain them in proper condition for its account and to insure them for all risks at its expense for as long as it acts as holder of those accessories.
7.3 The accessories shall be made available on Brink’s first request.
7.4 Accessories used by the other party for execution of the contract shall on first request by Brink be submitted to Brink for approval.
7.5 Alteration to or deviation from the accessories supplied or approved by Brink shall be permitted after prior written permission from Brink.
7.6 The other party shall not apply the accessories or have them applied for or in connection with any purpose other than the delivery to Brink, unless Brink has given prior written permission to that end.
Article 8 Approval, permission
Approval or permission given to the other party by Brink with respect to any item stipulated in these terms and conditions shall not discharge the other party from its obligations pursuant to the contract.
Article 9 Alterations
9.1 Brink shall be entitled to require that the scope and/or nature of the goods to be delivered be altered. Brink shall be entitled to make modifications to the drawings, models, instructions, specifications and the like with respect to the goods to be delivered.
9.2 When such alterations entail in the opinion of the other party consequences for fixed price and/or delivery time agreed, it shall prior to effecting the alteration inform Brink in writing of this as soon as possible, and under all circumstances at the latest within 8 days of notification of the alteration required.
9.3 When these consequences for the price and/or delivery time are in Brink’s judgement unreasonable with respect to the nature and scope of the alteration, Brink shall then be entitled, without being or becoming liable for damages, to dissolve the contract by means of written notice to the other party.
Article 10 Payment and penalty
10.1 Payment shall be within 60 working days of delivery and receipt of the invoice, provided the delivery has been approved by or for Brink and all associated documentation has been received by Brink. Should Brink pay within 10 working days it shall be entitled to 2% payment discount on the invoice amount.
10.2 Invoices shall be submitted to Brink.
10.3 The other party shall be obligated to specify on the invoice and accompanying documents its VAT identification number and the Brink order number, and when available the article number.
10.4 Brink shall be entitled in cases to be determined by it to require that the other party issues for its own account an unconditional and irrevocable bank guarantee from a banking institution acceptable to Brink in order to provide surety for the other party’s fulfilment of its obligations.
10.5 Payment by Brink constitutes under no circumstances whatever waiver of its rights.
10.6 Should Brink maintain a penalty clause in a contract, this shall be without prejudice to Brink’s right to require fulfilment and/or compensation for damages for the contract involved.
Article 11 Quality, warranty, inspection
11.1 The other party warrants that the goods supplied meet the contract and that the goods possess the properties that have been promised, are free from defects, suitable for the purpose for which they are intended and meet the legal requirements and other government regulations and also the quality, working conditions and environmental requirements that are adopted within the sector, as these apply at the moment of delivery.
11.2 Brink or persons or agencies appointed by Brink may inspect the goods either before or after delivery.
11.3 The other party shall for this purpose grant access to the locations where the goods are produced and/or stored and shall render assistance for the inspections required by Brink and provide for its account the documentation and information required.
11.4 The other party shall inform Brink in good time of the time at which inspection can be conducted.
11.5 The other party shall be entitled to be present during the inspection.
11.6 When inspection is conducted by an independent agency, the result of the inspection shall be binding for parties. The same shall apply for the result of repeat inspection.
11.7 The personal inspection costs on Brink’s part shall be for Brink’s account. The personal costs on the part of the other party and all business inspection costs shall be for the account of the other party. Under personal inspection costs shall be included all costs relating to the persons or agencies responsible for the inspection. Under business inspection costs shall be included all other costs that are incurred for conducting the inspection or having it conducted, such as the costs of unpacking and repacking, and also the costs of delay. All costs for repeat inspection shall be for account of the other party.
11.8 When during inspection prior to or after delivery the goods are rejected entirely or partially, Brink shall inform the other party of this or have it informed.
11.9 When the goods are rejected after delivery, the risk for the rejected goods devolves from Brink to the other party from the date of the notification stipulated in the previous paragraph. The other party must arrange within 5 days for its account transport of the rejected goods. Parties shall understand by rejected goods also goods that have been returned by customers of Brink for failing to meet (any longer) the provision of paragraph 1 of this article.
11.10 When the goods, irrespective of the results of any inspection, transpire not to meet the provision of paragraph 1 of this article, the other party shall for its account and at Brink’s discretion upon first request repair or replace the goods, unless Brink prefers dissolution of the contract as per the provision of article 16. All potential additional costs for repair or replacement, such as but not exclusively the costs for (dis)assembly shall likewise be for account of the other party.
11.11 In urgent cases and also when after consultation with the other party it can be reasonably assumed that the other party will not be able, will not be able in time, or not be able to properly ensure repair of replacement, Brink shall be entitled to carry out repairs or have repairs carried out by third parties for account of the other party.
11.12 By inspection shall be understood for the application of these terms and conditions also control, testing or examination.
Article 12 Confidentiality
12.1 The other party shall guarantee confidentiality relative to third parties of all corporate information originating from Brink, which comes or is brought to its attention in any fashion.
12.2 The other party shall not be permitted to duplicate corporate information relating to the contract or to issue to others for inspection other than that required in the context of the execution of the contract and after prior written permission from Brink.
12.3 All corporate information made available by Brink to the other party shall remain at all times Brink’s property and must be returned at the other party’s expense upon Brink’s first request.
12.4 The other party shall also impose upon its personnel and upon third parties that are engaged by the other party in the execution of the contract the obligations stipulated in this article.
12.5 Goods and/or services resulting from joint developments from both Brink and the other party may not without prior written permission from Brink be applied to purposes of third parties.
Article 13 Industial and intellectual property
13.1 The other party guarantees that the application, including resale of the goods that it supplies or of the accessories that it buys or produces for Brink shall not infringe patent rights, brand rights, model rights or other rights of third parties.
13.2 Brink shall be the titleholder to all industrial and intellectual property rights that emerge and/or result form the execution of the contract by the other party, its personnel and third parties that are engaged for the execution of the contract.
13.3 Upon first request by Brink the other party shall provide its assistance with formalities necessary to establishing and/or confirming the right to title stipulated in the previous paragraph in favour of Brink.
13.4 The other party shall mark clearly as property of Brink all items of the industrial and intellectual property rights stipulated in paragraph 2.
13.5 The other party shall indemnify Brink for claims that emerge from any kind of infringement of the rights stipulated in paragraphs 1 and 2 and it shall reimburse Brink for all damage resulting from any infringement.
Article 14 Transfer
14.1 The other party shall not transfer to third parties, either in whole or part, its rights and obligations pursuant to the contract without prior written permission from Brink.
14.2 The other party shall not transfer to third parties, either in whole or part, the execution of its obligations pursuant to the contract without prior written permission from Brink.
14.3 Brink shall be entitled to attach conditions to its permission.
Article 15 Liability
15.1 The other party shall be liable for all damage that is incurred by Brink or by third parties as a result of a defect to its product by virtue of which it does not provide the safety that could justifiably be anticipated.
15.2 The other party shall be liable for all damage that is incurred by Brink or by third parties as a result of its actions or omissions and those of its personnel or of third parties engaged for the execution of the contract.
15.3 The other party shall indemnify Brink for claims of third parties for compensation of damages on the grounds of liability as stipulated in the previous two paragraphs and shall upon first request by Brink effect a settlement with those third parties, or in Brink’s position or together with Brink - this at Brink’s discretion - resist at law aforesaid claims.
15.4 Employees of Brink shall for the application of this article be deemed to be third parties.
15.5 The other party shall insure itself adequately for the liability stipulated in this article and when required provide Brink with access to the policy.
Article 16 Dissolution
16.1 In cases of failure to fulfil its obligations pursuant to the contract or of other contracts that emerge from it, and also in the event of its bankruptcy, moratorium of payment and in the event of cessation of trading, liquidation or takeover or any other comparable circumstance of the business of the other party, the other party shall be by process of law in default. Brink shall then be entitled without notice of default and without intervention at law to unilaterally dissolve the contract in whole or part by means of a registered letter to the other party and/or to suspend payment obligations and/or to transfer execution of the contract in whole or part to third parties, without Brink being held to any compensation for damages and without prejudice to Brink’s further rights, including the right to full compensation for damages and restitution of the purchase price.
16.2 All claims that Brink may in these cases have or obtain against the other party shall be immediately due in full.
16.3 Should the other party appeal to non-attributable shortcoming (force majeure) Brink shall be entitled to dissolve the contract.
Article 17 Applicable law and disputes
17.1 The contract and all contracts emerging from it shall by exclusion be subject to Dutch law.
17.2 All disputes (including those that are recognized as such by only one of the parties) that may arise between parties further to this contract or contracts emerging from it shall at Brink’s discretion be subjected either to the judgement of arbiters appointed and rendering judgement in compliance with the regulations of the Netherlands Arbitration Institute (N.A.I.) in Rotterdam, or submitted to the qualified court in the Arrondissement of Zwolle.
Additional terms and conditions applying to the execution of some services and the contracting of work for Brink Climate Systems B.V.
Article 18 Applicability
18.1 These additional terms and conditions apply to all enquiries, quotations and contracts where Brink acts as principal for the execution of some services and the contracting of work by the other party.
18.2 In addition to these additional terms and conditions the general terms and conditions of purchase shall apply to aforesaid enquiries, quotations and contracts unless the additional terms and conditions or otherwise the nature of the articles dictate otherwise.
18.3 For the application of these terms and conditions under personnel of the other party should also be understood third parties that are engaged by the other party for the execution of the contract.
Article 19 Personnel, equipment and materials
19.1 Personnel engaged by the other party for execution of the contract shall meet the special requirements set by Brink and should there be no such requirements the general requirements of professional competence and expertise.
19.2 When Brink believes that there are unsatisfactorily qualified personnel Brink shall be entitled to require the removal of this personnel and the other party shall be obligated to replace them immediately subject to the provision of paragraph 1 of this article.
19.3 Brink shall be entitled to inspect and examine all materials and equipment used by the other party for the execution of this contract, including tools, and to establish the identities of personnel engaged by the other party for execution of the contract.
19.4 Should Brink during inspection or examination, as stipulated in the previous paragraph, of the materials and equipment used by the other party for execution of the contract, reject them in whole or part, the other party shall be obligated to replace immediately the rejected materials and equipment.
Article 20 Knowledge of the working site
20.1 The other party must prior to commencing with the execution of the contract familiarize itself with the conditions on the sites and/or in the buildings where the work is to be carried out and which may influence the execution of he contract. The other party should also be aware of the ‘third-party regulations’ that are issued with the written order.
20.2 Costs of delay in the execution of the contract, due to
circumstances stipulated in the previous sentence shall be for account and risk of the other party.
Article 21 Activities on the working site
21.1 The other party must prior to commencing with the execution of the contract familiarize itself with the contents of the instructions and regulations with regard to quality, working conditions and the environment applying on the sites and/or in the buildings where the work is to be carried out and to act accordingly.
21.2 The other party shall ensure that the personnel that it deploys reports to the supervisor of the sites and/or buildings where the work is to be carried out prior to commencing with the execution of the contract.
21.3 The other party undertakes to ensure that the work is carried out to the highest standards of craftsmanship and expertise and in compliance with the assembly, installation and commissioning regulations, in such fashion that the work provides the result agreed.
21.4 The other party undertakes to ensure that its presence and the presence of its personnel on the sites and/or in the buildings where the work is to be carried out form no obstacle to the undisturbed progress of the work of Brink and third parties. 21.5 Brink retains the right to refuse the other party or personnel of the other party access to the sites and buildings of Brink without specifying reasons.
Article 22 Ultimate liability
22.1 When the Act of 4 June 1981 [Bulletin of Acts, Orders and Decrees 1981, No. 360, the 'Wages and Salaries Tax and Social Security Contributions (Liability of Subcontractors) Act' applies to the contract the other party must meet all obligations (including administration) pursuant to the act/acts and/or regulations.
22.2 Brink shall be entitled in cases to be determined by it to pay a portion of the contract fee either via the G account of the other party or directly to the agencies involved.
22.3 The other party shall indemnify Brink for claims pursuant to the legal regulations stipulated in paragraph 1. In the event of differences in translation or interpretation between the Dutch and the English version of this document, parties will be bound to the Dutch version which prevails.
Edition March 2006