Purchase conditions
Part 1 | General Provisions
Article 1 Definitions
In these purchasing conditions, the following terms are used in the following meaning, unless expressly stated otherwise:
1. Buyer: Inventflow, which consists of the private limited company Inventflow, established at Twentepoort Oost 25, 7609RG in Almelo (the Netherlands), registered under number 08176491 at the Chamber of Commerce. Inventflow Components & Services Belux (BVBA), established at Jachthoornlaan 34, 2980 Zoersel (Belgium), registered under company number BE0831567.637. Inventflow GmbH, established at Wiener Str. 10, 48455 in Bad Bentheim (Germany), registered under company number HRB 206706.
2. Supplier: the natural or legal person from whom Buyer orders Products or from whom Buyer purchases services.
3. Products: All items delivered or to be delivered to Buyer in execution of an Agreement.
4. Services: Services and/or performances commissioned by Buyer to Supplier, insofar as they do not consist of the delivery of the Products.
5. Agreement: The agreement or assignment/order between Buyer and Supplier that aims at the sale and delivery of products or services purchased by Buyer.
6. Confidential Information: all information obtained directly or indirectly from Buyer by Supplier, including but not limited to (purchase) orders, agreements, trade secrets, as well as information about Buyer's company, and all other information that is marked as confidential or of which the parties reasonably know or could have known that it concerns confidential information.
Article 2 Applicability
1. These purchasing conditions apply to all Agreements concluded or to be concluded by Buyer and agreements and/or partial orders arising from or related to them. Supplier is deemed to make its offer in compliance with these purchasing conditions.
2. The general (delivery) terms and conditions of the Supplier are expressly excluded and are rejected in advance.
3. Deviations from or additions to these conditions are only valid if the Buyer has agreed to them in writing.
4. In the event of any discrepancy between the meaning of the Dutch text of these terms and conditions and that of translations thereof into other languages, the Dutch text shall prevail between the parties.
5. In the event of any conflict or ambiguity between the documents, or within a document, that form the Agreement, Supplier shall immediately inform Buyer thereof. Supplier shall never be entitled to additional compensation or postponement or suspension of delivery. Buyer shall determine which document prevails.
6. These purchasing conditions also apply to additional, future, amended and follow-up agreements with Supplier.
7. If one or more provisions of these purchasing conditions are partially or completely null and void or are annulled, the other provisions of these purchasing conditions will remain in force and the null and void/annulled provision(s) will be replaced by a provision with the same purport as the original provision. Any ambiguities regarding the content, interpretation or situations that are not regulated in these purchasing conditions must be assessed and interpreted in accordance with the spirit of these purchasing conditions.
Article 3 Quotation and conclusion of the Agreement
1. A request for a quotation by Buyer does not bind Buyer.
2. Buyer is only bound by Agreements or orders that have been expressly confirmed in writing by Buyer. As long as Buyer has not confirmed the Agreement in writing as described above, Buyer has the right to cancel the Agreement without stating reasons.
right to cancel or amend the Agreement without being liable to pay compensation for any damage suffered by the Supplier or its agents and/or (sub)suppliers.
3. A quotation that has already been confirmed cannot be changed unilaterally by the Supplier, except in the event that the Products to which the quotation relates are no longer available. The Supplier must at all times consult with the Buyer about this.
4. All Agreements that the parties enter into with each other are non-exclusive. Supplier is not entitled to impose restrictions on Buyer that impede the free purchase of goods and products from Buyer.
5. Buyer shall at all times remain entitled to change the scope or composition of an Agreement. Supplier shall be obliged to execute the amended Agreement without additional costs, unless this cannot reasonably be expected of Supplier. If the change results in an additional price, Supplier shall inform Buyer thereof as soon as possible. In the absence of timely notification, or at least if the price quote is not made known to Buyer within 7 calendar days, Buyer may assume that there are no price changes.
6. If delivery times need to be changed as a result of the change to the Order, the Supplier must inform the Buyer thereof and of the expected delivery time.
7. If the performance of the Agreement is subject to specific instructions from the Buyer, the performance thereof shall be entirely at the expense and risk of the Supplier.
8. If and to the extent necessary for the performance of the Agreement, all documents, specifications and more provided by the Buyer shall form an integral part of the Agreement.
Article 4 Amendment of the Agreement
1. Buyer is entitled to amend and/or adjust the Agreement in writing. Supplier will confirm the amendments in writing, or at least by e-mail, and execute the Agreement accordingly.
2. Supplier shall, at the request of Buyer, implement all reasonable changes to the scope and/or nature of the Agreement indicated by Buyer. In such case, the Parties shall be deemed to have reached agreement on the possible consequences thereof.
Article 5 Termination of the Agreement
Both Supplier and Buyer may terminate the Agreement in writing, in whole or in part, with immediate effect, without further notice of default, if one of the parties is granted a moratorium on payments, bankruptcy has been requested or the company in question is terminated by liquidation. If a situation as mentioned above occurs, Buyer is never obliged to repay any monies already received and/or to pay damages.
Article 6 Suspension and termination
1. The Buyer is entitled to suspend the fulfillment of the obligations or to dissolve or terminate the agreement (without prior notice of default) if the Supplier does not or does not fully fulfill the obligations under the agreement.
2. Furthermore, the Buyer is authorised to dissolve the agreement(s) existing between it and the Supplier, insofar as these have not yet been executed, without judicial intervention, if the Supplier fails to fulfil its obligations arising from any agreement concluded with the Buyer in a timely or proper manner, as well as in the event of bankruptcy or suspension of payments of the Supplier or in the event of the closure or liquidation of its business.
3. Furthermore, the Buyer is entitled to terminate the Agreement without prior notice of default if circumstances arise which are of such a nature that compliance with the
agreement is permanently impossible. Even if, according to standards of reasonableness and fairness, it can no longer be expected of the Buyer, or if there are circumstances that are of such a nature that maintenance of the Agreement cannot reasonably be expected of the Buyer.
Article 7 Transfer of obligations
1. Supplier is not permitted to transfer the obligations arising from the Agreement to a third party without the prior written consent of Buyer. Buyer may attach additional conditions to this transfer.
2. Buyer is authorized to require Supplier to have the Agreement performed in whole or in part by third parties at its own expense and risk, if there is urgency or if it is expected that Supplier will not, will not timely or will not properly ensure the correct performance of the Agreement. The foregoing does not release Supplier from its obligations under the Agreement.
3. Regardless of the transfer as referred to in paragraph 1 of this article, the Buyer shall retain its rights and claims that the Buyer may derive from any shortcoming.
Part 2 | Execution of the agreement
Article 8 Supplier Obligations
1. As part of its duty of care, Supplier shall keep Buyer informed of the performance of the Agreement and shall also inform Buyer on first request regarding the performance. Supplier is obliged to immediately inform Buyer in writing of all relevant facts and circumstances that may lead to any delay in the performance of the Agreement or which have not been taken into account in the Agreement.
2. Supplier guarantees that it or any third party affiliated or employed with it is not or has not been involved in any violation of the Competition Act or in any cartel formation.
3. The Supplier has an independent obligation to inform third parties engaged by it of any agreements between the Buyer and the Supplier.
Article 9 Buyer's Obligations
At the request of the Supplier, the Buyer shall provide all necessary information and data to properly execute the Agreement and shall provide the Supplier with access to the relevant space where the Products are delivered, to the extent necessary for the proper execution of the Agreement.
Article 10 Execution of the Agreement
1. Supplier shall execute the Agreement within the term stated in the Agreement. The term stated in the Agreement is a fatal date. The term commences on the date of the Order, unless the parties have agreed otherwise. If Supplier fails to comply with the term or fails to comply with it in part, Supplier shall be in default. Buyer shall then be entitled to terminate the Agreement immediately and without prior notice of default, both with regard to the part not delivered on time and the entire Agreement. Termination may take place without judicial intervention and at the expense of Supplier.
2. Supplier is obliged, as soon as he reasonably suspects that he cannot meet the set deadlines or other obligations, to inform Buyer without delay, but as soon as possible. The notification must at least contain the nature of the circumstances as well as the measures taken by him and, if known, the period of the expected delay. Except in the case of force majeure, Buyer is entitled to claim compensation from Supplier.
3. If and to the extent that proper performance of the Agreement so requires, Supplier shall have the right to have certain work carried out by third parties at its own discretion. Supplier shall be obliged to inform Buyer of this in a timely manner.
4. In the event of a delay, Supplier will agree on a new delivery period with Buyer, whereby it will be established that Supplier is already in default. If necessary, Supplier is obliged to store Buyer's Products free of charge in a suitable place and must take appropriate measures at its own expense and risk to prevent any loss of quality of Buyer's Products.
5. If there are errors or ambiguities in the documentation prior to the Agreement, Supplier is obliged to ask Buyer for clarification. If Supplier does not request clarification, this is at its own expense and risk.
6. The (digital) data made available by the Buyer for the purpose of executing the Agreement must be clearly marked by the Supplier as being the property of the Buyer. The Supplier is prohibited from providing this data to third parties or otherwise using or storing it for a purpose other than that for which it was provided. The Supplier is obliged to return this data free of charge at the first request of the Buyer and to destroy its own copies.
7. Supplier shall, at Buyer's request, provide Buyer with the opportunity to check the performance of the Agreement, to perform checks and inspections and/or to provide access to the relevant applicable (legal) documentation or agreements. Such a right does not release Supplier from the proper performance of the Agreement.
Article 11 Compliance with regulations
1. Supplier guarantees that the Products and Services delivered comply with the Agreement, as well as the applicable laws and regulations with regard to (among other things) safety, health and the environment.
2. Supplier is obliged to comply with all applicable (legal) regulations that apply to the Agreement. This also includes the regulations at the place of performance of the service. If obliged to do so, Supplier must demonstrably be in possession of any permits, certificates or other required documentation to comply with all (legal) regulations and specifications as set out in the Agreement. Buyer may request Supplier to demonstrate the above.
3. Unless otherwise agreed, Supplier shall be responsible at its own expense for the removal and disposal of its own waste (as well as packaging) in accordance with applicable laws and regulations.
4. Buyer is entitled to check Supplier's compliance. Supplier must cooperate in this.
Article 12 Confidentiality
1. Buyer and Supplier undertake to maintain confidentiality of all Confidential Information obtained in the context of an assignment or Agreement. The confidentiality arises from the assignment and agreement or from what one can reasonably expect to be Confidential Information.
2. If Buyer is required by law or a court order to provide Confidential Information to a third party designated by law or a competent court or (also) and Buyer cannot invoke a right to refuse to give evidence, Buyer shall not be obliged to pay any compensation and Supplier shall not be entitled to terminate the Agreement.
3. Supplier also imposes the confidentiality obligation on third parties engaged by him. In doing so, Supplier has an explicit obligation to make an effort.
Article 13 Insurance
Supplier is obliged to have adequate professional and business liability insurance in order to cover any risks and to compensate any damage suffered by Buyer.
Buyer has the right to request access to the policy conditions of the insurance. Supplier must demonstrate to Buyer at first request that he has always paid the relevant insurance premiums on time and in full. If agreed, Supplier is obliged to assign claims of Supplier against the insurer to Buyer.
Article 14 Compliance and default
Supplier is obliged to inform Buyer in writing, or at least by e-mail, in a timely manner about any delay and the measures taken by Supplier to limit the delay as much as possible. Supplier will also inform Buyer of the new, expected term.
Article 15 Force Majeure
1. If and to the extent that force majeure occurs, as a result of which a party cannot fulfil its obligations arising from the Agreement, this shall not constitute grounds for any compensation to this party.
2. Force majeure is expressly not understood to mean: staff shortages, illness of staff, strikes in the company of the party concerned, external network problems, defects in computer equipment or software, late delivery of goods by own suppliers, transport problems, traffic jams (other than a traffic jam) and failures in the performance by third parties or liquidity problems.
3. Force majeure is understood to mean: government measures, disruption of electricity, internet, data network and/or telecommunications facilities.
4. In the event of force majeure, the obligations of both parties shall be suspended for the duration of the force majeure. Both Parties shall have the right to terminate the Agreement in whole or in part if the force majeure situation lasts for at least a continuous period of 60 days. In this context, Buyer shall never be obliged to compensate Supplier for damages suffered, including consequential damages, loss of profit and loss, etc.
Article 16 Liability
1. Supplier executes the Agreement entirely at its own risk. All damage suffered by Buyer as a result of, or related to, the execution of the Order by Supplier, must be compensated by Supplier, insofar as the damage is caused by Supplier, its employees and/or third parties engaged by it who are involved in the execution of the Order.
2. Supplier is fully liable for all damage that Buyer or third parties (may) suffer as a result of the failure to perform, the untimely performance or the improper performance of obligations under the Agreement.
3. Supplier shall at all times remain liable for all damages under product liability.
4. Supplier is obliged to have adequate professional and business liability insurance in order to cover any risks and to compensate Buyer for damages. Buyer has the right to request access to the policy. Parties may agree that Buyer is included as co-insured. Supplier must demonstrate to Buyer at first request that it has always paid the relevant insurance premiums on time and in full. If agreed, Supplier is obliged to assign claims of Supplier against the insurer to Buyer.
5. If agreed, Supplier is obliged to provide Buyer with access to its administration and any granted (work) permits free of charge and at Buyer's first request.
Article 17 Indemnity
1. If Buyer is approached by third parties for the fulfilment of the obligations of Supplier, Supplier is obliged to support Buyer in this free of charge and to provide all necessary cooperation in order to demonstrate that
Buyer has not failed in this respect. Supplier shall indemnify Buyer at Buyer's first request against claims from third parties, direct or indirect, arising from the non-compliance, untimely or complete compliance with the obligations under these purchasing conditions and the Agreement.
2. Supplier guarantees that the delivered Products, including computer software and software applications, do not infringe any intellectual property rights or other property rights of third parties. Supplier indemnifies Buyer in this regard against all claims by third parties on the grounds of violations of intellectual and/or industrial property rights of these third parties.
3. Supplier shall indemnify Buyer against all claims from third parties, including Buyer's clients, in connection with the failure to perform, the failure to perform on time or the failure to properly perform its obligations under the Agreement. This also includes all claims from (involved) implementing bodies in the broadest sense of the word and all claims based on any chain and product liability.
Article 18 Fine
1. In the event of a violation of one or more provisions, the offending party shall owe an immediately due fine of €30,000, as well as €2,500 per day for as long as the violation continues, without prejudice to the right to claim damages.
2. The applicability of Articles 6:92 BW and 6:93 BW is hereby excluded.
Article 19 Intellectual and industrial property rights
All intellectual and industrial property rights relating to the goods delivered by the Supplier, as well as any services or work performed for the benefit of the Buyer, shall belong exclusively to the Buyer, unless otherwise agreed or the IP rights already belong to the relevant supplier.
Article 20 Applicable law
1. Dutch law applies to every agreement between Supplier and Buyer. Insofar as Dutch law is unexpectedly not applicable due to mandatory legislation and regulations, the (CISG) Vienna Sales Convention applies.
2. The Buyer is entitled to change these purchasing conditions and will inform the Supplier thereof in a timely manner.
3. All disputes arising from or in connection with the agreement between Supplier and Buyer shall be settled by the judge of the District Court of Overijssel, Almelo location, unless mandatory provisions of law lead to the jurisdiction of another court.
Part 3 | Payment Terms
Article 21 Prices and payment
1. The prices (excluding VAT) stated in the Agreement are leading and fixed for at least a period of 1 year after the order confirmation, unless expressly agreed otherwise. Any changes to these are only possible if confirmed by both parties.
2. The prices of Products include standard packaging, packing and delivery to the destination designated by the Buyer. Furthermore, the prices of all Products include all preparatory and other work required to meet the requirements, descriptions and specifications set by the Buyer. Failing this, the Supplier must bear the additional costs.
3. Only after the entire Agreement has been executed, Buyer is liable for payment and can invoice Supplier. Buyer uses a payment term of 60 days after receipt of the relevant invoice, unless otherwise agreed in writing. The invoice must meet all legal requirements and
must also be accompanied by a receipt signed by the Buyer as proof that delivery has taken place.
4. If the delivered goods do not correspond to the Agreement, the invoice contains inaccuracies or does not meet the legal requirements, the Buyer is entitled to suspend payment until the delivered goods do correspond to the Agreement or the invoice has been adjusted.
5. Buyer has the right to offset any claim Supplier has on Buyer against the agreed price. Buyer also has the right to suspend payments to Supplier if and to the extent Supplier is in default with regard to the fulfillment of obligations under current Agreements between the parties. Supplier has no right to offset or suspension.
6. If Products are stored, the Buyer is obliged to make payment after the commencement of the storage of these Products.
7. Unless otherwise agreed, Buyer is entitled to transfer its obligations to a third party without the consent of Supplier.
8. If the Buyer has already paid advances and the items ordered by the Buyer have not been delivered within the agreed period, the Supplier shall, unless otherwise agreed, owe at least the statutory commercial interest on the advances paid for the period that the shortcoming continues, regardless of whether the shortcoming can be attributed to the Supplier.
Part 4 | Terms of Delivery
Article 22 Delivery
1. The Supplier is obliged, taking into account the nature and properties of the goods, to package and/or secure the goods in such a way that they reach their destination in good condition during normal transport and can be safely unloaded there. Any special requirements imposed by the Buyer with regard to packaging and/or security must be observed by the Supplier. The Buyer will provide these instructions in a timely manner. The Buyer is entitled to refuse all deliveries that do not comply with the above. In no event shall the Buyer be obliged to compensate the Supplier for any damage suffered as a result.
2. All agreed terms are fatal terms. If they are exceeded, Supplier will be in default without further notice of default. If agreed, Supplier may be obliged to pay an immediately due fine of 10% of the gross invoice amount to which the (partial) delivery relates. This does not affect the right of Buyer to claim additional compensation. Supplier remains obliged to fully comply with the relevant delivery.
3. Supplier must deliver the products to the destination designated by Buyer within the agreed delivery period. To this end, Supplier is obliged to use proper packaging and arrange proper transport.
4. Delivery in parts is only possible if the parties have expressly agreed to this in the order. Delivery is entirely at the risk of the Supplier, even if use is made of any employees and/or third parties hired by the Buyer to handle the delivery.
5. After delivery, Buyer remains entitled to examine the delivered goods (or have them examined) to determine whether they comply with the Agreement. Buyer has a reasonable period for this purpose, but at least 2 working days after the goods have been delivered. If examination shows that the Products do not comply with the Agreement, Buyer will notify Supplier, in which case Buyer has the right to return the goods or accept them at a lower price.
6. The investigation shall not prevent a later appeal by Buyer to non-compliance by Supplier with its warranty obligation or any other obligation towards Buyer. Articles 6:89 and 7:23 BW are expressly excluded.
7. The parties may agree that the delivery must contain specific information.
8. The Buyer is at all times entitled to refuse a delivery if the Supplier does not comply with one or more provisions of the purchasing conditions or Agreement, without being obliged to compensate the Supplier for any damage suffered.
Article 23 Transfer of risk
The risk of loss or damage to the Products that are the subject of the Agreement shall pass to Buyer at the time when the goods are delivered into Buyer's possession and Buyer has signed for receipt. This is the case if the Products have been delivered to Buyer's agreed delivery address.
Article 24 Investigation and inspection
1. Buyer has the right (but is not obliged) to inspect goods during the production process, storage and after delivery. If the goods are rejected in whole or in part, Buyer will notify Supplier in writing. In the event of rejection, the costs of inspection will be borne entirely by Supplier.
2. Supplier is obliged to cooperate with the inspection.
3. In the event of rejection of delivered goods, Supplier is obliged to arrange for repair or replacement of these goods within a reasonable period of maximum 14 days, depending on the wishes of Buyer. Buyer has the right to purchase the required goods from a third party, or to have measures taken by third parties, at the expense and risk of Supplier, if Supplier has not fulfilled the obligation within the aforementioned period.
4. If Supplier has not complied with the rejected items within a maximum period of 14 days after Buyer's request to take back the items, Buyer has the right to return these items at Supplier's expense and risk.
5. In the event of rejected goods, the Buyer is entitled to repair or replacement of the Products, or may purchase the Products from a third party, if the urgency is such that the Buyer cannot wait for any action from the Supplier, or if it is expected that the Supplier will not, will not timely or will not properly ensure repair or replacement of the delivered Products.
Article 25 Warranty
1. Supplier guarantees and warrants that the delivered goods comply with the Agreement, the specifications stated in the offer, usability and/or soundness, effectiveness, finish and the statutory rules and quality regulations (in the context of health, safety, good quality and more). The delivered goods will also possess the properties that Buyer could expect on the basis of the Agreement that are necessary for normal use, and of which there is no need to doubt that these properties are present.
2. This warranty also means that the delivered product is new and free from visible defects.
3. If and to the extent that Supplier can claim guarantees from its own Suppliers or third parties, Supplier transfers these guarantees to Buyer in advance. Supplier is obliged to cooperate free of charge at Buyer's first request to make the transfer possible.
4. Supplier also guarantees that the delivered goods are free from restrictions, retention of title, attachments, charges and rights of third parties, unless Buyer expressly agrees to these restrictions.
5. The warranty will be extended by the same period if the Buyer or its customers have not used the relevant items for a certain period as a result of one or more defects or shortcomings in the relevant delivered items.
6. Supplier is obliged to also provide the above-mentioned guarantee on the items that have been supplied as replacements for the defective items, both to Buyer and to its customer(s).
7. Except in the case of gross negligence and/or neglect on the part of the Buyer, the delivered goods will be considered defective if defects are discovered within six months of delivery.
Article 26 Transfer of ownership
1. Buyer shall acquire ownership of the delivered goods at the time of delivery and receipt or if Buyer has paid for the relevant goods, whichever occurs first. If the Products are stored, Buyer shall acquire ownership as soon as the Products are stored for him. Supplier guarantees that ownership of the delivered goods is delivered without any reservation.
2. If and to the extent that there is advance payment for the goods, Supplier shall hold these goods for Buyer, but Supplier shall remain fully responsible and liable for correct delivery. In such a situation, Buyer shall be entitled to demand security from Supplier.
3. Receipt and acceptance of the delivered goods may not be construed as a rejection of the right of complaint.
4. The Buyer is entitled to appoint a third party to receive the Products on its behalf, but the Supplier is only entitled to deliver the delivered goods to a third party to the extent that the Buyer has indicated this.
5. Processing or mixing of Buyer's goods in Supplier's goods results in a new item being created that becomes the property of Buyer. Supplier also remains fully responsible and liable for correct delivery in this situation.
6. All items manufactured or developed by Supplier shall become the property of Buyer if these items have been developed or manufactured on behalf of Buyer.