GENERAL PURCHASE CONDITIONS MARFO B.V.
ARTIKEL 1. DEFINITIONS
1.1 In these general purchase conditions the following terms will have the following meaning:
- General Purchase Conditions: these general purchase conditions;
- Supplier: any natural or legal person with whom Marfo orders/purchases products and/or services and/or with whom Marfo conducts meetings and/or negotiations for the benefit of the conclusion of an Agreement;
- Marfo: Marfo B.V., with its registered office in Lelystad and listed in the Commercial Register under number 39026658;
- Order: any order for the supply of products and/or services, issued by Marfo to the Supplier;
- Agreement: any agreement concluded between Marfo and the Supplier and all amendments and/or supplements thereto;
- Specification: any description of the products or services ordered or purchased by Marfo from the Supplier as stated, or to which reference is made in the Order or the Agreement. In the absence of a description as referred in the first sentence, the established practice between the parties applies or otherwise a description that is customary in the specific branch.
1.2 In these General Purchase Conditions:
- the use of the singular also extends to plural and vice versa, unless explicitly agreed or stated otherwise; and
- the headings of articles and annexes, if any, are merely for the sake of convenience and no way whatsoever affect the contents or interpretation thereof.
ARTIKEL 2. APPLICABILITY
2.1 These General Purchase Conditions are part of all Agreements and apply to all legal relationships between Marfo and the Supplier, regardless of whether such legal relationships arise from offers, requests, Orders, quotations, confirmations of Agreements.
2.2 The applicability of the general terms and conditions of the Supplier, under whatever name, is excluded.
2.3 In the event of conflict between the contents of the Agreement and the General Purchase Conditions, the provisions of the Agreement will prevail.
2.4 Acceptance of these General Purchase Conditions by the Supplier is deemed to include all future offers, Orders and Agreements with Marfo.
2.5 These General Purchase Conditions are originally drawn up in the Dutch language; the Dutch version of these General Purchase Conditions is binding in case of any conflict or any difference in content or scope.
ARTIKEL 3. OFFERS AND ORDERS
3.1 Requests for an offer do not bind Marfo and are only invitations to issue an offer. The offer is irrevocable and will remain valid for a period of 60 calendar days as of the date of the offer.
The offer cannot be changed during the above-mentioned period, unless the change pertains to an (additional) discount to be given by the Supplier.
3.2 Any costs related to offers or quotations are not compensated by Marfo.
3.3 Marfo is only bound to an Order if it has been laid down in writing and signed by one of Marfo's persons authorized to represent.
3.4 If the Supplier commences its activities before having received an Order referred to in 3.3 for that purpose, it does so for its own account and risk.
3.5 In the event of any discrepancy between the Order and the (possible) order confirmation, the contents of the Order shall be construed as the contents of the Agreement.
3.6 Marfo is entitled – provided that the Supplier has not yet commenced the performance of the Agreement – to at any time terminate the Agreement with immediate effect, without charge and without any liability for compensation in respect of the Supplier and/or third parties.
ARTIKEL 4. PRICES
4.1 The agreed prices are fixed and cannot be changed, unless the changes pertain to (additional) discounts to be given by the Supplier.
4.2 The prices stated in the Order and/or Agreement are stated in Euros and are exclusive of VAT. The prices are inclusive of packaging and DDP (Delivered Duty Paid) delivery at Marfo's address in Lelystad and inclusive of import levies in conformity with the Incoterms that are in force at the time of conclusion of the Agreement. The prices furthermore are inclusive of surcharges and/or costs related to any preparatory and other activities that are required to meet the requirements and Specifications set by Marfo, unless otherwise agreed.
4.3 If prices have been agreed 'ex works' and the Supplier nevertheless provides for the transport, the risk of loading and transport will be for the account of the Supplier.
4.4 If the products to be delivered by the Supplier are collected by or on behalf of Marfo, the Supplier must provide assistance with the loading without charge.
ARTIKEL 5. DELIVERY AND PENALTY
5.1 The agreed delivery period is final. If the delivery period is exceeded, the Supplier is in default by operation of law.
5.2 As soon as the Supplier knows or should know that the Agreement will not be performed fully, properly or in good time, it will immediately inform Marfo's procurement department thereof in writing, stating the circumstances that give rise to such. The Supplier will furthermore immediately propose to take transitional measures.
5.3 The Supplier may only deliver an alternative performance, if Marfo has given written permission for this.
5.4 Partial delivery of ordered products and/or services is only allowed if the Order explicitly states so.
5.5 In the event of delay in the delivery, the Supplier will forfeit to Marfo an immediately due and payable penalty of 0.5% of the total order amount of the Agreement for each day that the delivery is delayed, with a minimum of EUR 500 and a maximum of 10% of the total order amount of the Agreement. The above-mentioned penalty will not be incurred if the delay can be attributed to Marfo or if the Supplier is entitled to rely on force majeure. All this without prejudice to the other rights that accrue to Marfo on the basis of the law and/or the Agreement, such as the right to compensation of damage and the right to termination of the agreement, among other things.
5.6 The Supplier is liable for all damage suffered by Marfo in the event that the delivery period referred to in article 5.1 is exceeded and/or the (likely) delay referred to in article 5.2 is not reported, or not reported in a timely, correct and complete manner. In such event, Marfo may terminate the Agreement wholly or partially and/or refuse the products and return them to the Supplier, at the latter's expense and risk, without prejudice to the other rights that accrue to Marfo on the basis of the law and/or the Agreement.
5.7 In the event of a late delivery, Marfo, in addition to compensation of damage, may claim compensation of the additional costs it was forced to incur to reasonably replace the products that were delivered late by the Supplier.
5.8 If Marfo requests the Supplier to postpone the delivery, the Supplier will store, secure and insure the products properly packed and recognisably intended for Marfo. Any reasonable costs related to that can – after prior consultations – be compensated by Marfo.
5.9 The products to be delivered to Marfo must be properly packed in conformity with statutory regulations and decisions and any additional regulations of Marfo.
5.10 The Supplier is liable for damage caused by improper packaging. The Supplier ensures that damaged products are collected and/or taken back and will within two business days provide for a new (undamaged) delivery, without any additional costs for Marfo.
5.11 If the parties agreed that the Supplier itself will store the products to be delivered by it or will store them at a third party for the benefit of Marfo, the Supplier will store the products for the benefit of Marfo at a suitable and isolated location, take out insurance and take appropriate measures to counter loss or loss of quality.
5.12 Delivery takes place based on Incoterms that are in force at the time of the conclusion of the Agreement: Delivery Duty Paid (DDP) at Marfo’s address in Lelystad, unless otherwise agreed between the parties in writing.
5.13 If the products delivered are subject to a returnable deposit, the Supplier must clearly indicate this on the packing slip/delivery note.
5.14 All packaging materials used will become the property of Marfo upon receipt by Marfo. At the request of Marfo, the Supplier must take back the used packaging materials at its own account and risk.
5.15 Acceptance of products and/or services delivered only means that in Marfo's preliminary opinion the appearance of the products delivered and/or the visible performance or the visible result of the services is in accordance with the Order. More specifically, acceptance does not bar a later reliance by Marfo on non-performance by the Supplier in respect of its obligations under the law and/or the Agreement.
ARTIKEL 6. OWNERSHIP AND RISK
6.1 The ownership of the products to be delivered by the Supplier passes to Marfo upon delivery or, if earlier, at the time of payment of said products by Marfo.
6.2 The risk of all products to be delivered by the Supplier in all events remains with the Supplier until Marfo has taken delivery of the products.
6.3 The Supplier is obliged to transfer the products to be delivered and the other rights to Marfo unencumbered.
6.4 Marfo may at all times sell on and/or deliver the products delivered by the Supplier to third parties.
6.5 The Supplier has no right of retention or right of suspension in respect of the products and/or services and, if necessary, waives all rights in this respect.
ARTIKEL 7. PAYMENT
7.1 Only (i) after a full and correct performance of the Agreement by the Supplier and (ii) provided that the products and/or services and possible auxiliary equipment delivered have been accepted by Marfo and (iii) after receipt of all related documentation by Marfo (including, but not limited to, the correct addressee and full invoice, in any event provided with Marfo's order number) will Marfo within 45 days after receipt of the invoice pay the products and/or services delivered into the bank account to be designated by the Supplier.
7.2 Payment by Marfo in no way whatsoever entails a waiver of any rights.
7.3 Marfo is always entitled to pay in Euros, at the rate of exchange applicable on the invoice date.
ARTIKEL 8. QUALITY
8.1 The Supplier warrants that the products and/or services delivered by it are sound. This warranty in any event entails that:
- the products and/or services are suitable for the purpose for which the Order was placed;
- the products and/or services are entirely in accordance with the Specifications;
- the products and/or services, the manufacture and packaging of the products and the manner in which the services are carried out complies with national, European and international legislation, including legislation regarding the composition, labelling and product safety;
- the products are free from microbiological, chemical and physical contamination; and
- the products have a consistent taste, scent, colour and stability.
8.2 The Supplier warrants that it:
- has implemented and complies with all requirements of the specific quality assurance systems (such as HACCP, internal and external traceability systems etc.)
- has all required government approvals and permits and acts in accordance with those;and
- will at all times maintain and keep its sites, factory, machinery, equipment and all procedures in strict compliance with all laws, regulations, protocols and similar guidelines as indicated by (national and/or European) authorities in the field of health, safety and the environment.
8.3 If the Supplier or Marfo becomes aware of the fact that the products delivered are a danger to the health or safety of persons, animals and/or the environment for reasons other than the normal use of the products, the other party must be informed of this immediately. If the defective products justify that the products are recalled, either by virtue of statutory regulations or in the opinion of the Supplier, Marfo or both, the Supplier will immediately take action, pay the costs involved and indemnify Marfo against of third-party claims. The products delivered may not be recalled without Marfo's permission.
8.4 If the Supplier becomes aware of any shortcomings in respect of the products and/or services, the Supplier will immediately inform Marfo via fax, email, or any other manner of direct written communication. The above-mentioned notification will insofar as products are concerned include: the nature and the quantity of the products, the identification numbers and, if applicable, batch numbers, production data and all other relevant data, including the data required to investigate which part of the products is defective.
8.5 If the products and/or services (including the related documentation) during or after completion of the production or upon or after delivery are wholly or partially rejected by Marfo or another competent authority, or if it is established in any other way that these do not meet the applicable requirements, or do not meet the reasonable expectations under the Agreement and/or are unsuitable for their purpose, the Supplier will, at the discretion of Marfo (nonexhaustively) and within a period determined by Marfo:
- provide for the repair at no cost;
- repay the amount already paid; or
- deliver products and/or services (including documentation) that are in accordance with the applicable requirements, at the expense and risk of the Supplier, all this without prejudice to the other rights that accrue to Marfo on the basis of the law and/or the Agreement.
8.6 If the Supplier does not meet its obligation stated in article 8.5, under a and c, or does not do so within the stated period or not to Marfo's satisfaction, Marfo is entitled to carry out the above-mentioned activities itself or to have these carried out by a third party at the expense of the Supplier. Marfo is entitled to recover the costs incurred from the Supplier, or to set-off these costs against the amounts due to the Supplier.
8.7 Marfo may return products and/or documentation that do not conform to the Agreement to the Supplier at the expense and risk of the Supplier, or keep the defective products and/or documentation in its possession at the expense and risk of the Supplier. In both cases, Marfo may charge the Supplier for all direct and indirect costs and damage incurred in this respect, without prejudice to the other rights that accrue to Marfo under the law and/or the Agreement. If Marfo stores the products and/or documentation, the Supplier is obliged to collect these from Marfo within two days of Marfo's request to this end, whereby Marfo in case of default may act as it sees fit.
ARTIKEL 9. INSPECTION AND CHECK
9.1 Marfo, or a third party appointed by Marfo, may at all times inspect, test and/or check the products ordered or delivered. In that event, the Supplier will provide unlimited cooperation to Marfo or the third party and will provide the necessary facilities and assistance at no cost.
9.2 If the products delivered or to be delivered by the Supplier do not meet the Agreement, Marfo, or a third party appointed by Marfo, has the right to reject said products. In the event of rejection, article 8.7 applies mutatis mutandis. In the event that the products are rejected, the costs of the inspection, tests and/or check referred to in article 9.1 will be at the expense of the Supplier.
9.3 Irrespective of whether Marfo exercises its rights by virtue of article 9.1, irrespective of the findings of the inspections and checks referred to in said article and irrespective of Marfo's remarks to the Supplier, the Supplier remains fully liable for a correct execution of the Order.
ARTIKEL 10. CONFIDENTIALITY
10.1 All Agreements, Orders and/or related correspondence are confidential and may not be disclosed by the Supplier without the prior written permission of Marfo. The Supplier is furthermore obliged to observe secrecy in respect of all information concerning Marfo's business operations which it may obtain in the context of the Order and/or the Agreement or the performance thereof, such including the nature, the cause and the result of the activities carried out by the Supplier.
10.2 The Supplier must impose the duty of confidentiality referred to in article 10.1 on all its employees/subordinates and third parties which by necessity obtain or have knowledge of all information referred to in this article and warrants the performance of these obligations by said employees/subordinates and third parties. This clause is also intended as third-party clause for the benefit of Marfo.
10.3 In the event of violation of the obligations referred to in article 10.1 by the Supplier, its employees/subordinates and/or the third parties referred to in article 10.2, the Supplier will forfeit an immediately due and payable penalty of EUR 20,000 per event, all of this without prejudice to Marfo's right to compensation of damage and all other rights that accrue to Marfo under the law and/or the Agreement.
ARTIKEL 11. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
11.1 Marfo is entitled to assign the entire Agreement or specific rights and/or obligations under the Agreement to group companies. By entering into the Agreement, the Supplier in advance grants the permission required for the assignment.
11.2 The Supplier may not assign or outsource the Agreement, or any part thereof, or the performance thereof to third parties (including group companies of the Supplier).
11.3 Marfo may render the above-mentioned permission subject to specific conditions. Marfo's permission, whether or not subject to conditions, will not discharge the Supplier from its obligations under the Agreement. The Supplier is responsible for the third parties as if it were its own performance. The Supplier is furthermore fully liable for all direct and indirect costs and expenses resulting from the assignment and/or outsourcing.
11.4 The Supplier warrants that the third party it engages will comply with the conditions laid down in the Agreement and these General Purchase Conditions.
ARTIKEL 12. LIABILITY
12.1 The Supplier will fully compensate all direct and indirect damage suffered by Marfo or third parties as a consequence of or in relation to the performance of the Agreement, irrespective of whether this damage is caused by the Supplier itself, its staff or any other persons the Supplier has involved in the performance of the Agreement.
12.2 The provisions of article 12.1 are considered to be a clause also for the benefit of any prejudiced third parties. The Supplier indemnifies Marfo against any third-party claims arising from or relating to the acts or omissions of the Supplier in the performance of the Agreement, including damage suffered by third parties on account of the delivery of defective products and/or services.
12.3 The Supplier will take out sufficient insurance with a reputable insurer in respect of the liability referred to in this article as well as for other common risks and will submit a copy of the insurance policy at Marfo's request.
12.4 Except for intent or wilful recklessness of Marfo or its executive staff, Marfo is not liable for any damage suffered by the Supplier, its staff or other persons the Supplier has involved in the performance of the Agreement.
12.5 If Marfo is liable for any damage suffered by the Supplier on account of intent or wilful recklessness on the part of Marfo or its staff, any liability of Marfo is limited to the amount paid out under Marfo's business liability insurance in the specific case, increased with the sum of the excess under said insurance. If, for whatever reason, payment by virtue of this insurance does not take place, any liability of Marfo is limited to the amount that Marfo could possibly owe to the Supplier under the contract.
12.6 Claims for payment of damages will prescribe after one year of the date on which the Supplier became aware of the damage and Marfo's possible liability for said damage.
ARTIKEL 13. INTELLECTUAL PROPERTY
13.1 The Supplier will grant Marfo a non-exclusive, perpetual, irrevocable, worldwide and assignable rights of use with regard to any intellectual property rights in respect of the products delivered by the Supplier, including but not limited to trademarks and know-how. This right of use
entails, among other things, the right to use the products (or have them used) (including any changes, processing and adaptations) and the power to deliver and make the products available to third parties, whether or not processed or as a component of other products, and the right to provide such right of use to (possible) purchasers or other third parties with whom Marfo maintains relationships in the context of the performance of its business activities. If a further (legal) act is required under any legal system for the establishment and/or execution of these rights/licensing rights, the Supplier will inform Marfo thereof and will always provide all required cooperation to Marfo at its own account and risk. A possible remuneration for this is deemed to be included in the agreed price of the products and/or services.
13.2 The Supplier warrants that the products and/or services do not infringe the intellectual property rights or other rights of Marfo or third parties.
13.3 The Supplier indemnifies Marfo and its purchasers against any third-party claims arising from any kind of infringement of the rights referred to in article 13.2 or similar claims and the Supplier will compensate any damage suffered by Marfo and its purchasers as a result thereof.
13.4 In the event that legal proceedings are instituted on account of infringement of those rights or
if there is such possibility, the Supplier will at its own expense and risk and without prejudice to Marfo's rights, including its right to termination of the Agreement:
- still acquire the right to continue the use of (the specific part of) the products and the results of the services;
- replace and/or adjust (the specific part of) the products and/or the results of the services; or
- take back the (the specific part of) the products and/or the results of the services against payment of the costs, damage and interest.
Adjustment and/or replacement will not entail that Marfo will be restricted in the possibilities for use of the products or results of the services.
13.5 The Supplier will, for its own account and in consultation with Marfo, defend Marfo in the event that legal proceedings are instituted against Marfo on account of infringement of intellectual or industrial property rights of third parties, and will bear all costs in this context, including the
lawyer's fees and any costs Marfo might be ordered to pay.
13.6 Insofar as Marfo provides any auxiliary materials to the Supplier in respect of which Marfo has intellectual property rights, the Supplier will acknowledge that Marfo at all times is and will remain the party entitled to these materials and the Supplier will not acquire any intellectual
property right or title in respect of said materials. The Supplier will at its own expense and risk manage the auxiliary materials referred to in this paragraph and keep them in a good state. It will not use these for, or let them used by third parties without Marfo's written permission.
13.7 If the Supplier, whether or not in conjunction with Marfo, develops products, know-how, documentation for Marfo with respect to the products and/or services, any intellectual property rights to be relied on in this respect as well as all intellectual property rights in respect of the results of the services are exclusively vested in Marfo. If any further (legal) act is required under any relevant legal system for the establishment and/or execution thereof, the Supplier will inform Marfo thereof and will always provide all required cooperation to Marfo at its own account and risk. A possible remuneration for this is deemed to be included in the agreed price of the products and/or services.
ARTIKEL 14. FORCE MAJEURE
14.1 In the event that force majeure prevents the parties from complying with their obligations, these obligations are suspended for the duration of the force majeure situation.
14.2 Force majeure on the part of the Supplier in any event does not include: strikes, occupational disability of staff, understaffing, illness of staff, energy problems or energy shortages, shortage of raw materials, transport problems, automation problems, increase in wage costs, late delivery and/or unsuitable materials, attributable shortcoming or unlawful act on the part of the subcontractors or third parties engaged by the Supplier, liquidity problems or solvency problems on the part of the Supplier and disruptions in the production of the Supplier. The events stated in this paragraph do not justify any extension of the delivery period or other non-performance of the Agreement.
14.3 A successful reliance of the Supplier on force majeure requires that the Supplier immediately informs Marfo in writing as soon as the force majeure situation arises, with submission of the necessary evidence.
14.4 If the force majeure situation exists longer than 30 days, Marfo is entitled to terminate the Agreement by means of a written statement without charge and without any obligation to pay damages, or to terminate the agreement with immediate effect, such at the discretion of Marfo.
ARTIKEL 15. TERMINATION OF THE AGREEMENT
15.1 Marfo is entitled to terminate the Agreement, irrespective of its term, subject to a one-week's notice.
15.2 The Supplier is not authorized to terminate the Agreement.
15.3 In derogation of article 15.1 and without prejudice to the other rights that accrue to Marfo under the law and/or the Agreement, Marfo is entitled to terminate the Agreement at its own discretion, without charge, with immediate effect and without any obligation of Marfo to pay damages, by means of a written notice to the Supplier, in the event that:
- the Supplier does not comply with its obligation under the Agreement, or does not do so in a proper and timely manner, in which case the Supplier is in default by operation of law;
- the Supplier applies for a moratorium or if the Supplier is granted a moratorium;
- the bankruptcy of the Supplier is petitioned or pronounced;
- the applicability of the debt management scheme pursuant to article 284 paragraph 1 and/or paragraph 4 Bankruptcy Act is requested in respect of the Supplier, of if such scheme is declared applicable;
- the Supplier dies;
- the company of the Supplier is shut down or wound up;
- the Supplier's creditors have been offered a payment arrangement or scheme;
- a considerable part of the Supplier's business assets have been attached;
- the company of the Supplier, or a considerable part thereof, has been sold to a third party;
- control of the Supplier's company has been transferred to another party; or
- the Supplier enters into a legal merger.
15.4 Marfo's claims against the Supplier are immediately due and payable in each of the cases referred to in article 15.3, without any obligation of Marfo to pay damages or provide security.
15.5 If one of the events referred to in article 15.3 occurs, the Supplier must immediately inform Marfo, or its legal successor, thereof in writing.
ARTIKEL 16. MISCELLANEOUS PROVISIONS
16.1 These General Purchase Conditions are available in the Dutch and English language. In the event of any differences in terms of contents or purport, the Dutch text will prevail.
16.2 These General Purchase Conditions were deposited with the Chamber of Commerce and will be send to the Supplier at first request without charge.
16.3 If any provisions of these General Purchase Conditions and/or the Agreement are null and void/annulled, the other provisions of the General Purchase Conditions and/or the Agreement will remain in full force and Marfo and the Supplier will enter into consultation in order to agree on new provisions to replace the null and void/annulled provisions, which will correspond as much as possible to the purport of the null and void/annulled provisions.
16.4 Marfo is entitled to suspend any claims against the Supplier and/or to set-off any claims against any claims of the Supplier against Marfo. The Supplier, however, is not entitled to suspend or set-off any claims.
16.5 Written communication is considered equal to electronic communication and communication by fax.
ARTIKEL 17. APPLICABLE LAW AND COMPETENT COURT
17.1 The legal relationships between Marfo and the Supplier are exclusively governed by Dutch law, with explicit exclusion of the Vienna Sales Convention (CISG).
17.2 All disputes between Marfo and the Supplier will exclusively be submitted to the Midden-Nederland District Court. Marfo is nevertheless entitled to submit disputes to the court that has jurisdiction in the Supplier's place of establishment.