General Conditions of Purchase of the University of Twente (version april 2004)

Article 1: Definitions

In these conditions, the following terms are defined as follows:

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‘Client’: The University of Twente.

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‘Supplier’: The client’s contract party.

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‘Contract’: Written agreements between the client and the supplier regarding the delivery of goods.

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‘Party or parties: The client or the supplier or the client and the supplier jointly.

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‘Delivery’: Supplying the client with any goods or placing them in the client’s possession and any installation/assembly of these goods.

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‘Goods’: The goods and/or services to be provided.

Article 2: Applicability

1.

These conditions of purchase apply to all requests, offers and orders from the client regarding the delivery of goods by the supplier to or for the client. The applicability of these conditions of purchase supersedes that of all previous conditions of purchase.

2.

In the event of any discrepancies, contracts between the parties will prevail over these conditions of purchase.

3.

Orders and related contracts, as well as amendments and additions thereto are only binding upon the client if the client has placed or confirmed them in writing. Such contracts are performed exclusively subject to these general conditions of purchase.

4.

The client hereby expressly rejects applicability of the supplier’s general terms and conditions.

5. The applicability of the United Nations Convention on contracts for the international sale of goods (the ‘Vienna Sales Convention’) is excluded.

Article 3: Price

1.

The price includes all costs incurred in relation to the goods and their delivery, exclusive of VAT.

2.

The price is fixed, unless the contract states circumstances that may lead to a price adjustment and the manner in which the price is to be adjusted.

3.

All costs associated with the issue of quotes are to be borne by the supplier.

Article 4: Invoicing and Payment

1.

The supplier will send an (itemised) invoice to the address stated in the contract.

2.

Payment is to be made within 30 days after receipt of the invoice, if the supplier has fulfilled its obligations.

3.

Payment does not release the supplier from any of its statutory guarantee obligations and/or liability.

4.

In the event of prepayment by the client and if the client should so require, the client may request security in the form of a bank guarantee that meets the client’s requirements.

5.

The client will be entitled to postpone payment (in part) if the client detects a defect in the goods or their installation/assembly that justifies postponement.

Article 5: Packaging

1.

The goods are to be packed in such a way that they reach their destination by normal transport in a good condition.

2.

The client is at all times entitled to return the (transport) packaging materials to the supplier at the latter’s expense.

3.

The supplier is responsible for processing or destroying the (transport) packaging materials. If packaging materials are processed or destroyed at the supplier’s request, the risk and costs associated with it will be borne by the supplier.

Article 6: Delivery

1.

The supplier will deliver the goods, with accompanying documents (packing lists, product information, certificates, etc.) within the agreed period, DDP, to the agreed address and in accordance with the Incoterms.

2.

The client has the right to postpone delivery. In that event, the supplier will secure and insure the goods, and store them separately, identifiably and properly packed.

3.

If the goods are not delivered to the agreed location within the period agreed upon or if the goods do not meet the provisions of the contract, the supplier will be in default without notice being required.

4.

The supplier must notify the client immediately in writing of any imminent failure to meet the delivery deadline, without prejudice to any contractual or statutory consequences of such failure.

5.

If the supplier continues to default on delivery, the client will be entitled to claim damages, equalling at least all costs and any consequential loss ensuing from the client’s efforts to ensure continuity of the direct and indirect operations (costs associated with personnel, the purchase of alternative products, logistics, etc.). In that case, the client will be entitled to procure products from a different supplier and recover any additional costs from the supplier.

Article 7: Inspection

1.

The client is at all times entitled to inspect or have a third party inspect goods during production, processing, storage or after delivery.

2.

At the client’s request, the supplier will grant the client or the client’s representative access to the production, processing or storage location. The supplier will co-operate with the inspection free of charge.

3.

If, through a fault on the part of the supplier, an inspection as referred to in this article cannot be conducted at the scheduled time, the resulting costs will be charged to the supplier.

4.

If any goods delivered are rejected, the supplier will ensure that they are repaired or replaced within five working days. If the supplier fails to meet this obligation within the period referred to in this article, the client will be entitled to procure the required goods from a third party or take other measures or have a third party take measures at the supplier’s expense and risk.

5.

If the supplier does not collect the rejected goods within 14 days, the client will be entitled to return them to the supplier at the latter’s expense.

Article 8: Spare Parts

The supplier is obligated to keep (spare) parts, components, special tools and/or measuring equipment of similar quality in stock for a minimum period of ten years.

Article 9: Occupational Health and Safety, and the Environment

1.

The supplier must perform the work in compliance with the client’s ‘Third-Party Safety Regulations’. Upon request, the supplier can receive a free copy of these regulations immediately.

2.

The supplier is obligated to comply with the statutory occupational health and safety regulations and statutory environmental regulations.

Article 10: Personnel

The company’s personnel working for the client must:

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be skilled and behave with propriety

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wear recognisable workwear

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comply with the client’s house regulations

Article 11: Intellectual and Industrial Property Rights

1.

The supplier guarantees the client the free and uninterrupted use of the goods delivered. The goods are free of any limitations arising from intellectual and/or industrial property rights. The supplier will indemnify the client for the financial consequences of third-party claims filed on account of infringement of their intellectual and industrial property rights.

2.

Any intellectual and industrial property rights to products developed for delivery will be vested in the client free of charge, and the client will be deemed to have been the owner of these rights from the beginning.

3.

The supplier is entitled to use any information provided by the client, but only in connection with the award and performance of the contract. The client will remain the owner of this information.

Article 12: Liability and Insurance

1.

The supplier is liable for all damage caused to the client and/or third parties by the supplier’s personnel and/or by goods in the supplier’s possession and/or by the supplier’s subcontractors, including damage ensuing from non-performance or inadequate performance of the agreed work.

2.

The supplier will indemnify the client for third-party claims for damages.

3.

The supplier will take out such liability insurance as the client deems adequate.

4.

The client is not liable for damage to or loss of the supplier’s machines, tools and materials. This also applies to any damage caused to subcontractors working on the supplier’s responsibility or their personnel.

5.

The insurance policy to be taken out must exclude a ‘care, custody and control clause’. Unless stipulated otherwise in the invitation to tender and/or the contract, the insurance cover should total at least €2,500,000 per event.

6.

Damage that is demonstrably caused by the client cannot be recovered from the supplier.

Article 13: Confidentiality

1.

The supplier is obligated not to disclose the existence, nature and substance of the agreement or any other business information without written permission from the client. This obligation also applies to any auxiliary people or suppliers that the supplier may call in.

2.

The obligations under this article will remain in effect after termination of the contract.

Article 14: Wages and Salaries Tax and Social Security Contributions Act

1.

If and in so far as the Wages and Salaries Tax and Social Security Contributions Act applies to any part of an order, the client will be entitled to pay the wages and salaries tax and social security contributions part of every invoice directly into a G account or to the tax collector or, as the case may be, the industrial insurance board, stating the reference to be specified by the supplier.

2.

If and in so far as the supplier is held liable under Sections 35 and/or 36 of the 1990 Collection of State Taxes Act or Section 16b of the Social Security Co-ordination Act, the supplier will not be entitled to recover the financial consequences from the client under Section 55 of the Collection of State Taxes Act and/or Section 16f of the Social Security Co-ordination Act.

3.

In addition to the provisions of paragraphs 1 and 2 of this article, the supplier is obligated to provide the client with all relevant information/particulars. The supplier indemnifies the client for all relevant claims from the tax authorities or industrial insurance board, as well as any recovery claims from third parties. The supplier will include this provision in any contracts with third parties that the supplier may call in (under no circumstances without the client’s permission) and require such third parties to include this provision in any contracts to be concluded by them.

Article 15: Transfer of Risk and Title

1.

The title to the goods passes to the client after the goods have been delivered and, if necessary, assembled and installed, and approved by the client.

2.

Any materials, such as raw materials, auxiliary materials, tools, drawings, specifications and software, that the client may make available for the fulfilment of the supplier’s obligations remain the client’s property. The supplier will store them separately from items that belong to the supplier or third parties. The supplier will mark them as property of the client at the supplier’s own expense and risk, keep them in good condition, and insure them against all risks as long as they are in the supplier’s possession.

3.

The moment materials, such as raw materials, auxiliary materials and software of the client, are incorporated into goods of the supplier that are transferred to the client, such goods will be new goods of which the client is the owner.

4.

If the goods supplied are not approved or are rejected, the concomitant risk returns to the supplier as soon as the supplier is notified of the rejection.

Article 16: Dissolution

Premature dissolution of the contract is permitted if:

1.

after written notice of default, one of the parties continues to default on contractual obligations (attributable failure)

2.

one of the parties is bankrupt or is granted a moratorium

Article 17: Applicable Law and Disputes

1.

This contract, of which these conditions of purchase are part, is governed solely by Netherlands law.

2.

The District Court of Almelo is authorised to take cognisance of any dispute regarding the inception, interpretation or performance of the contract, as well as of any other legal or factual dispute, without exception, relating to or ensuing from the contract.