Article 1. Applicable conditions / Independent Supplier

Transcription

1 General Purchase Conditions of Brabantia Branding B.V., with registered offices in Valkenswaard, The Netherlands, filed at the clerk's office of the district court in s-hertogenbosch, The Netherlands, on 28 February 2012 under number 14/2012 Article 1. Applicable conditions / Independent Supplier 1.1 The present General Purchase Conditions, to the exclusion of the general terms and conditions of the Supplier, shall apply to all requests for offers and orders from Brabantia to the Supplier for the delivery of Goods and/or the implementation of Services on its behalf, and any individual agreement/order arising therefrom (hereinafter Agreement ), unless otherwise expressly agreed in writing by the parties. Should any contradictions arise between present General Purchase Conditions and the specific conditions in the Agreement or request for offer, the specific conditions in the Agreement or request for offer shall prevail. 1.2 In present General Terms and Conditions of Purchase, the following shall be taken to mean: - Brabantia: Brabantia Branding B.V. or the company affiliated to Brabantia Branding B.V. (hereinafter Brabantia ) that has referred to the present General Purchase Conditions; - Supplier: the party with whom Brabantia enters into an Agreement, or from whom Brabantia requests an offer or from whom Brabantia receives an offer to that end. Any reference to commercial terms shall be deemed to refer to the Incoterms; - Goods: tangible or movable personal property other than money, as well as work products, which in its turn shall mean, amongst other things: (improvements of) drawings, designs, specifications, models, wording, scripts, concepts regarding development/manufacturing/logistics/ promotion/media/sales/marketing of Goods and/or Services, advertisements, whether in hard copy or electronically stored, banners, software and other Intellectual property developed by the Supplier under the Agreement. - Services: all of the services, activities and work provided by the Supplier as set forth in the Agreement. Services will also include all of the current or future, necessary, customary and appropriate services to the same extent that such services are, from time to time, provided by the Supplier to its other customers when the Supplier is supplying services substantially similar to the Services being provided hereunder, even if the specific services are not set forth in the Agreement. 1.3 The employees, subcontractors, methods, facilities and equipment used by the Supplier shall be at all times under its exclusive direction and control. Supplier s relationship to Brabantia shall be that of an independent contractor, and nothing in the Agreement shall be construed as to constitute the Supplier, its subcontractors or any of their employees as an employee, agent, associate, joint venture or partner of Brabantia. It is agreed that Supplier s employees, who are assigned to manufacture Goods or provide Services for Brabantia under the Agreement, shall at all times be and remain employees of the Supplier. Article 2. Establishment of Agreements 2.1 An Agreement shall only be binding upon Brabantia if Brabantia has issued an order, and that order has been confirmed to Brabantia by the Supplier within 5 working days (for Suppliers abroad: 10 working days) by post, by facsimile transmission, by , or by a form of electronic data interchange approved in advance by Brabantia. In the absence of written confirmation within this period, Brabantia may revoke the order free of charge. If the Supplier undertakes to deliver Goods and/or provide Services without such confirmation, and Brabantia at that time accepts compliance, only those conditions as specified in the order by Brabantia, including present General Terms and Conditions of Purchase, shall apply. In present General Terms and Conditions of Purchase, messages sent by and by facsimile transmission shall be considered equivalent to written documents. 2.2 Deviations in the confirmation by the Supplier from Brabantia s order shall not be binding upon Brabantia. In the event of deviations in respect of minor points, the Agreement shall be established in accordance with the order from Brabantia. In the event of essential deviations, Brabantia shall not be bound by the confirmation General Purchase Conditions of Brabantia Branding 1

2 Article 3. Quality of the Goods, Packaging and Services provided / Working conditions 3.1 The Goods supplied and Services provided by the Supplier must: - in respect of the delivery of Goods, be of good quality and free from faults, and in the event of the provision of Services, must be implemented by expert personnel using new materials; - be fully in accordance with the stipulations in the Agreement, the requirements imposed by Brabantia and the reasonable expectations of Brabantia as concerns the properties, quality and reliability of the Goods and Services provided; - comply with the statutory requirements applicable at the moment of compliance in the Netherlands and all technical, safety, quality and environmental regulations, the last item also as specified in the Supplier's Environmental Statement, to be found at - comply with international government regulations, including current EU Directives, EU Regulations (e.g. REACH) and the EN and other standards applicable in the EU; - in as much as relating to machines and safety components, upon delivery, also in accordance with the current Machine Directive of the European Union, be accompanied by a CE mark and a separate EC declaration of conformity, from the Supplier. Fines or other penalties resulting from Supplier s noncompliance with the provisions in this article 3.1 shall not be reimbursable. 3.2 The Supplier must be conversant with the intended purpose of Brabantia for the Goods to be supplied to Brabantia and/or the Services to be provided on behalf of Brabantia, as arising from the nature of the Goods or the Services to be provided, or as specified in the Agreement. If the Supplier is not conversant therewith, the Supplier must expressly duly notify this fact to Brabantia in writing, prior to entering into the agreement. The stipulations in present article 3.2 shall also apply to the packaging and the transport of the Goods. 3.3 Any written information from the Supplier concerning the Goods and the use thereof shall apply to the Agreement, unless in contravention of the conditions applicable on the basis of article 3.1, or unless expressly renounced by Brabantia, in writing. 3.4 Simultaneously with the delivery of the Goods or the final delivery of the Services provided, for his own account and risk, the Supplier must issue the following items (insofar as applicable): instructions for use, documentation concerning the safety of the Goods (other than that specified in article 3.1), maintenance instructions, certificates, information concerning possible export restrictions, documents specified in the Incoterm used or, if no Incoterm is used, according to a previously followed course of action. 3.5 The Supplier shall do all things necessary to manufacture the Goods and perform the Services in a safe and environmentally sound manner. 3.6 The Supplier undertakes that it does not and will not employ any person to perform Services or provide Goods for Brabantia who is under sixteen (16) years of age, or eighteen (18) years of age in the case of hazardous Services or work. The Supplier undertakes that the employees it uses, and will use, to manufacture the Goods or perform Services, are present voluntarily; the Supplier certifies that it does not and will not knowingly use forced labour, when manufacturing or supplying Goods, or providing Services under any Agreement. The Supplier will adopt the SA8000 standard and understands that these undertakings are essential to the Agreement. The Supplier agrees to indemnify Brabantia and hold Brabantia harmless with respect to any liability arising from the contravention of this article by the Supplier. 3.7 The Supplier shall not pay any salaries, commissions or fees (or make any other payments or rebates) to any employee, officer or director of Brabantia or favour any such individual with gifts, entertainment, services or goods. Article 4. Intellectual property rights / Confidentiality / Obligation to provide information 4.1 Intellectual property rights mean all industrial and intellectual property rights, including but not limited to patents and design (patent) rights (including the exclusive right to make, use and sell), trademarks (including service and certification marks), trade names, copyrights (including the right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), passing off and other unfair competition rights, rights in computer software (including object codes, source codes and connected listings), rights in confidential know how and other rights of a similar nature, trade secrets, rights of publicity, rights in databanks, neighbouring rights, rights General Purchase Conditions of Brabantia Branding 2

3 regarding slavish imitation, rights of privacy, moral rights, in each case whether registered or unregistered and including all applications for their registration, together with the goodwill related to it, and all other industrial and intellectual property rights as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the Netherlands or any other state, country or other jurisdiction. 4.2 If the Goods, the Services to be provided or the accompanying documentation are subject to Intellectual property rights, Brabantia shall obtain users rights thereto, free of charge, by means of a non-exclusive, worldwide and perpetual licence. All Intellectual property rights arising as a consequence of the implementation of the Agreement by or on behalf of the Supplier shall accrue to Brabantia; the Supplier shall accept this in advance, upon entering into the Agreement. At the first request of Brabantia, the Supplier shall undertake all necessary action for the acquisition and securing of these rights. If the Goods and/or Services are only accessible for Brabantia via internet, the Supplier hereby grants to Brabantia a fully paid-up, royalty free, worldwide exclusive licence a) to access and use the Goods and Services and any Intellectual property right of the Supplier necessary or appropriate to access and use these Goods and Services for the benefit of Brabantia by an unlimited number of users of Brabantia, and b) for third parties to access and use these Goods and Services, provided such access and use by third parties is to communicate, share or access information, or transact business between or with Brabantia and its trading partners (including independent contractors, customers, suppliers and distributors of Brabantia). 4.3 The Supplier shall guarantee that through the implementation of the Agreements entered into with Brabantia, no violation is made of any Intellectual property right or any other right of third parties. The Supplier shall also indemnify Brabantia against all claims from third parties for (alleged) violation of their rights and hold Brabantia harmless with respect to any liability of the contravention of this article by the Supplier. All related costs for the Supplier and all damages suffered by Brabantia (including consequential damages, loss of profit and Brabantia s liability in respect of third parties as a result of late delivery and/or unsoundly delivered Goods or Services provided), in such a situation, shall be for the account of the Supplier. In such a situation, the Supplier shall be required to immediately and fully enable Brabantia to examine all relevant documents and to immediately inform Brabantia of any consultation held with the parties involved. 4.4 The Supplier shall not use the name, tradename, trademarks or logos of Brabantia in, amongst other things, any publicity releases, news releases, annual reports, product packaging, stationary, advertising, websites, without securing the prior written consent of Brabantia. Any Brabantia trademarks that Supplier is given consent to use must always be reproduced distinctively, accurately and consistently and as specified by Brabantia. Brabantia has the right to review and provide final approval of any material produced with the approved use of the Brabantia trademarks. 4.5 The Supplier shall provide Brabantia with all information which could be relevant for Brabantia prior to the establishment of the Agreement and during the implementation thereof. 4.6 The Supplier shall not issue confidential information (in other words information that is not public and/or generally known in the sector of Brabantia or the Supplier) to personnel not involved in the implementation of the Agreement, nor to third parties, concerning the Goods to be delivered or the Services to be provided, unless Brabantia has duly issued written permission in advance. Should the Supplier fail to comply with the confidentiality obligation referred to hereinabove, for each violation, the Supplier shall owe to Brabantia an immediately claimable penalty in the amount of 100,000 (in words: one hundred thousand euro), without prejudice to the right of Brabantia, instead of that penalty, to demand full compensation from the Supplier, and without prejudice to Brabantia s other rights. The Supplier shall accept in advance this fixing of the damages to be suffered by Brabantia as a result of a violation of the confidentiality obligation by the Supplier, in connection with the practical problems for Brabantia in precisely calculating and proving the damages in a specific instance. An action in contravention of the Agreement by a third party called in by the Supplier shall be considered an action by the Supplier. The provisions of this article do not apply if the Supplier is required to disclose the confidential information by court order or otherwise by mandatory Dutch law or super mandatory law of the country in which the statutory seat and principal place of business of the Supplier is located. 4.7 Upon request of Brabantia, Supplier shall return to Brabantia all confidential information and all written descriptive matter, including drawings, program listings, blueprints, descriptions, or other papers or documents which contain or summarize any confidential information General Purchase Conditions of Brabantia Branding 3

4 4.8 The confidentiality obligation shall end three (3) years after the (last) Agreement is entered into. If in the end no Agreement is established between the Parties, the confidentiality obligation shall end three (3) years after the date on which this was determined. 4.9 Without prior written permission from Brabantia, the Supplier shall not be permitted to use the name Brabantia or its logo in advertisements and other commercial expressions. Article 5. Terms / Late delivery / Defective or wrongly delivered Goods 5.1 Terms specified in the order by Brabantia for the implementation of the Agreement shall be binding and must be strictly complied with. Unless otherwise stipulated in writing, the terms shall commence at the moment on which the order was issued by Brabantia. 5.2 Any exceeding of terms agreed upon for implementation of the Agreement and any other shortcoming by the Supplier in his obligations arising from the Agreement, following notice of default, shall entitle Brabantia to fully or partially cancel/dissolve the Agreement, if the Supplier has failed to fully correct the shortcoming within the period specified in the notice of default or in the absence of a period specified by Brabantia within a period of not more than five working days. Unless the violation and/or other shortcoming as referred to hereinabove by the Supplier is entirely attributable to force majeure (which must be proved by the Supplier), Brabantia shall also be entitled to compensation of costs and damages, including consequential damages, loss of profit and Brabantia s liability in respect of third parties as a result of the late delivery and/or faulty delivery and/or service provision, without the need for a notice of default to the Supplier. In the event of violation as intended in this article, the Supplier shall under all circumstances, immediately and without judicial intervention or notice of default, owe an immediately claimable penalty, in favour of Brabantia of 1 percent per working day, up to a maximum of 20 percent, such without prejudice to the right of Brabantia to compensation of costs and damages, etc. as specified in the previous sentence, if such amounts are higher than this penalty. 5.3 The stipulations in this article 5 shall not affect any other rights of Brabantia if the Goods delivered and/or the Services provided by the Supplier are faulty. Article 6. Implementation and checks / Inspections / Assignment 1. The Supplier shall inform Brabantia in writing regarding the (partial) outsource or subcontract implementation of the order to third parties. Supplier shall be fully responsible for the performance of any such subcontractor or third party. If a check by a third party has been agreed upon, this check shall take place on behalf of Brabantia; the result of the check shall be binding for the Supplier. 2. Brabantia shall be entitled to have the Goods or (the result of) the Services provided inspected or audited, prior to the moment of delivery, at the premises of the Supplier by individuals duly appointed by Brabantia. The Supplier shall provide all necessary cooperation. 3. An Agreement shall not be assignable or otherwise transferable, in whole or in part, by Supplier. Brabantia may assign or transfer the Agreement in whole or in part, to a third party. The terms of these General Terms and Conditions shall be incorporated into all tier subcontracts. Article 7. Price / Invoicing and payment / Competitive offer 7.1 Prices stated in the order from Brabantia or in the offer from the Supplier shall, unless otherwise expressly specified in writing, be fixed, excluding VAT and including packaging, transport and delivery costs. Price increases arising following establishment of the Agreement may not be passed on to Brabantia. 7.2 There shall be no Agreement if, as a consequence of an omission by (one of) the parties, no piece or unit price for the Goods to be delivered or, in the event of Services to be provided, no rate per time unit, is agreed upon. In that case, both parties shall be entitled to enter into negotiations with the other party in order to agree upon such a price, without any obligation to pay costs or damages in respect of the other party arising as a result of the choice General Purchase Conditions of Brabantia Branding 4

5 made. The provisions of this article also apply in case the Supplier started the (preparation of) the manufacturing process or the performance of the Services. 7.3 The Supplier shall be entitled to invoice following delivery of the Goods or completion of the Services provided. Unless otherwise agreed in writing, invoices must contain an accurate specification of the Goods delivered or Services provided. Duplicates of an invoice must be marked as such. 7.4 The payment term shall be sixty (60) days following receipt of the invoice and acceptance of the Goods and/or Services provided or 14 days following receipt of the invoice and acceptance of the Goods and/or Services provided with a three (3) percent payment discount. 7.5 Payment shall under no circumstances represent the waiving of any right of Brabantia on the implementation of the Agreement by the Supplier. Article 8. Transfer of ownership and risk / (Final) Delivery / Disposal of packaging / Acceptance of the Goods and Services 8.1 Models, stamps, moulds, forms, drawings and other technical documentation, etc. purchased or manufactured by the Supplier in respect of the Agreement shall be considered as having been made available to the Supplier by Brabantia, at the moment that these items are delivered to the Supplier, or manufactured by the Supplier. If, for the purposes of the Agreement, Brabantia makes Goods available to the Supplier, or is considered as having made them available, these items shall remain or become the property of Brabantia. The Supplier shall retain these Goods in his possession, clearly marked as property of Brabantia, and on request, shall make available to Brabantia a statement of ownership. Goods arising through combination, mixing or otherwise shall become the property of Brabantia at the moment of their creation. The Supplier shall be considered as having formed/produced the Goods for Brabantia, and shall keep these new Goods as the property of Brabantia and, on request, shall provide Brabantia with a statement of ownership. 8.2 The ownership of Goods purchased by Brabantia shall be transferred to Brabantia as a result of and as soon as the Goods are loaded for transport. 8.3 The Supplier must adequately secure and insure Goods to be delivered to Brabantia, and in case the Supplier should manufacture Goods - must have an adequate product liability insurance with a minimum coverage of at least 1 million per occurence and a maximum deductible of 0.10 million. The risk for the Goods shall remain with the Supplier, irrespective of the stipulations in article 8.2, until the Goods have been received and accepted by Brabantia at the specified delivery location. Only then shall the Goods be considered as having been delivered, even if it is agreed that the transport shall be undertaken by, for the account and/or on behalf of Brabantia. In the event of destruction or damage of the Goods during transport, the Supplier shall be required to immediately deliver new replacement Goods, without prejudice to other claims from Brabantia. Any Services provided by the Supplier shall only be considered as having been completed and accepted by Brabantia once they are fully concluded, once they have been inspected by Brabantia and if Brabantia has not fully or partially rejected them within one month following completion. 8.4 Whenever set out on the basis of any statutory rule or if Brabantia so requests, with each delivery, a statement shall be enclosed in which the Supplier confirms that the Goods in question comply with the applicable standards. 8.5 Following delivery, the Supplier must dispose of the packaging material used, free of charge, except in as far as Brabantia opts to keep this material, in which case no payment shall be due therefor. All information must be specified on the packaging, in a clearly legible manner, necessary or useful for the storage and further handling (including lifting and transport situations) by Brabantia. 8.6 Brabantia shall be entitled to not accept the Goods or to not undertake payment if the Goods reach Brabantia without an adequate invoice in duplicate and/or packing slip/delivery note, and an inspection report (if agreed upon), whereby the inspection must take place on the basis of the purchase order specifications. In that case, Brabantia shall be entitled to return the Goods for the account and risk of the Supplier, or to store the Goods at the arrival location, until the moment at which Brabantia receives the invoice and/or packing slip/delivery note referred to. It must at least be stated on each handling unit which and how many Goods form part of that unit. The following details must appear on the packing slip/delivery note: material and supplier number, weight per unit, number of Goods delivered and description, delivery date and packaging costs in the event of a deposit charge. The same details as those specified on the packing slip/delivery note must appear on the invoice, together with the waybill General Purchase Conditions of Brabantia Branding 5

6 number, order number and statistic number, delivery date or delivery period, country of origin and VAT number of Brabantia and the Supplier. Article 9. Guarantee and liability 9.1 The Supplier guarantees that all obligations shall be performed in a prompt and professional manner in accordance with industry standards and the Agreement, free of errors or defects in design, material and workmanship. 9.2 For Goods delivered and Services provided, the guarantee period shall be at least 12 months starting from the (final) delivery and acceptance as intended in article 8.3. In the event of defects not immediately visible upon delivery or final delivery, the guarantee period shall be 12 months starting from the moment Brabantia discovered the defect or could reasonably have discovered it. 9.3 The guarantee shall consist of repair free of charge (such that the Goods are in as-new condition following repair) or exclusively at the discretion of Brabantia replacement of the delivered Goods or a re-performance of the Services, without prejudice to the liability of the Supplier for all damages (including consequential damages, loss of profit and Brabantia s liability in respect of third parties as a result of late (final) delivery and/or the faulty delivered Goods or Services provided). All costs relating to implementation of the guarantee shall be for the account of the Supplier. For repaired or replaced Goods, a new guarantee period shall apply, starting on the day on which the repair is completed and the Goods have been returned to Brabantia, or from the day of delivery. Article 10. Cancellation/dissolution / Force majeure / Suspension / Right of retention / Set-off / Continuing performance contracts 10.1Brabantia shall at all times be entitled to cancel/dissolve an order to the Supplier, even if the Supplier has already made a start on implementation thereof. In the event of cancellation, Brabantia shall only pay to the Supplier the costs accrued by the Supplier in the framework of the implementation of the Agreement plus a fixed percentage of 10 percent for lost profit, if the following conditions have been fulfilled: a. there is no question of a shortcoming by the Supplier whether or not attributable to the Supplier, and b. there is no question of an imminent shortcoming by the Supplier, whether or not attributable to the Supplier, which shall also be taken to mean one of the following situations: i) it is clear that compliance without shortcoming by the Supplier shall not be possible, or ii) Brabantia can reasonably determine, from the statements of the Supplier, that the Supplier shall be in default of compliance, or iii) Brabantia has good reason to fear that the Supplier shall fully or partially be in default of compliance, and c. there is no question of a(n) (imminent) non-attributable shortcoming on the part of Brabantia. Any other entitlement accruing to the Supplier in respect of a cancellation by Brabantia shall be excluded. 10.2If the Supplier shall (i) dissolve, transfer, sell, assign, mortgage, encumber, pledge, or otherwise dispose of substantially all of its assets used to perform its obligations under the Agreement, over twenty (20%) per cent of its ownership or controlling interest (whether in the form of stock or otherwise), (ii) consolidate with or merge into another corporation or permit (1) or more other corporations to consolidate with or merge into it, (iii) be adjudged bankrupt, be granted a moratorium on payments by a court order, make a general assessment for the benefit of the creditors, or (iv) contemplate or reasonably expect the occurrence of any event referred to in this article, then, in any case, the Supplier shall give Brabantia notice of such occurance as soon as is legally permissible. If, according to Brabantia, such occurrence or proposed occurrence is unacceptable, Brabantia has the right to terminate the Agreement immediately upon notice thereof to the Supplier, without any obligation for Brabantia to pay any compensation to the Supplier. 10.3The Supplier may only suspend compliance with the obligations arising from the Agreement on the basis of force majeure, if the Supplier duly notifies Brabantia within one working day following the occurrence of the circumstance that results in the force majeure, in writing, specifying the cause of the force majeure. 10.4Strikes and force majeure at third parties called in by the Supplier shall not release the Supplier from timely delivery of all agreed Goods and/or timely final delivery of all agreed Services General Purchase Conditions of Brabantia Branding 6

7 10.5The Supplier is not entitled to suspend its obligations in respect of Brabantia in relation to a specific Agreement on the basis of an (imminent) attributable shortcoming on the part of Brabantia in respect of another Agreement with the Supplier. The Supplier shall also not be entitled to exercise any right of retention on Goods that are the property of Brabantia or on which Brabantia has any other rights. The Supplier shall also not be entitled to set off. 10.6Brabantia may terminate a continuing performance contract entered into with the Supplier at all times, without specifying reasons and without the obligation to pay any compensation to the Supplier, taking account of a period of notice of three months, unless another period of notice has been agreed upon in advance. 10.7If, for reasons of its own, Brabantia waives any right, or in any other way accommodates the Supplier, such accommodation shall be limited to the specific circumstances of the case, and shall have no influence on the rights that Brabantia may exercise in other situations. Article 11. Applicable law / Competent court 11.1All Agreements between Brabantia and the Supplier (in part) governed by present General Terms and Conditions of Purchase shall be exclusively subject to Dutch law. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980 shall not be applicable. 11.2The terms and conditions of these General Purchase Conditions express and describe Dutch legal concepts in English and not in their original Dutch language. Consequently, words, terms and expressions used in these General Purchase Conditions and in the Agreement shall be construed and interpreted in accordance with Dutch law. 11.3All legal claims arising from the Agreements between Brabantia and the Supplier shall be exclusively settled by the competent court in the district of 's-hertogenbosch, unless if according to mandatory legal stipulations another court is competent, or Brabantia decides to submit its legal claim to the competent court under whose jurisdiction the statutory seat and principal place of business of the Supplier falls; in this latter two cases, this other court shall also hear any counter-claims from the Supplier relating to the same dispute between the parties. Further, in cases of urgency, each of the parties has the right to initiate an injunction before the competent court under whose jurisdiction the statutory seat and principal place of business of the other party falls. 11.4If at the moment of the dispute between the parties, no bilateral or multilateral treaty is applicable in respect of the mutual acknowledgement and enforcement of court decisions, Brabantia shall have the unilateral right to submit the claim against the Supplier to the Netherlands Arbitration Institute in Rotterdam ( according to the rules that apply to that Institute at that time. The place of arbitration shall be Rotterdam. The number of arbitrators shall be one. The arbitration judgement shall be given in accordance with the rules of law. The language of the proceedings shall be Dutch, or, at the request of one of the parties, English. Valkenswaard, February 22, 2012 rhee/vdb General Purchase Conditions of Brabantia Branding 7