For the purposes of these general conditions “APCE” shall mean “Air Products Chemicals Europe B.V.”
THE APPLICABILITY OF THE OTHER PARTY’S GENERAL CONDITIONS IS EXPRESSLY EXCLUDED
These general conditions shall apply to all legal relations which APCE enters into as a (prospective) supplier of goods and/or services.
These general conditions may only be altered in writing and signed by a duly authorised representative of APCE and the other party.
3. Offers/Conclusion of Contract
If the other party places an order, the agreement shall be concluded upon acceptance thereof by APCE at its principal place of business in Utrecht, The Netherlands.
Samples or models shown or provided shall only be considered as indicative, without the goods supplied having to conform thereto.
4. Supplementation of Contract
APCE shall, at the other party’s request, carry out any changes to the order suggested by the other party, provided these are reasonably practicable and APCE shall have the right to make an extra charge therefor.
All prices do not include any taxes, levies, imposts, duties or other governmental charges. Any such taxes, including, but not limited to, excise, sales, value added, turnover, privilege, use or import taxes, but excluding taxes imposed on APCE’s income, which are payable because of the sale, transport, delivery or use of the goods shall be the responsibility of the other party. If APCE makes, or is required to make, payment of, or in respect of, any such tax, the other party shall, immediately upon demand from APCE reimburse APCE the amount of such taxes.
6. Delivery/Term of Delivery
The time of delivery agreed with the other party shall be considered an indication and not a deadline.
Delivery shall take place in conformity with the rules set forth in the latest version of the Incoterms of the International Chamber of Commerce. The delivery term shall be mentioned in the order confirmation sent by APCE.
APCE shall be entitled to carry out its performance in stages.
The other party shall give APCE at least 30 days’ advance notice of its intention to take delivery. The other party shall purchase goods in substantially equal monthly quantities. APCE shall not be obligated to deliver in any month any quantity of goods in excess of 10% of the maximum quantity of goods that may be delivered under a contract in a twelve month period.
In the event of curtailment of supply of any goods due to any causes, APCE shall have the right to apportion deliveries of goods on such basis as may appear to it to be equitable. Any accepted order which, due to any causes, shall not have been fulfilled by the end of the contract term, may be cancelled by either party unless such party is in default with respect to the goods not then delivered.
APCE reserves the right to discontinue deliveries without liability to the other party if in APCE's opinion the manufacture, sale or use of the goods as such would infringe any patent not held by or licensed to APCE.
Each delivery shall constitute a separate sale with the same effect as though made under a separate contract covering the amount thereof.
APCE's invoice must be settled within 30 days of the invoice date in the manner indicated by APCE. Payment must be made effectively in the currency agreed upon and without any set-off, discount, or suspension.
If any payment is overdue, all the other party’s outstanding payments, notwithstanding whether APCE has already submitted an invoice therefor, shall become immediately due and payable.
If any payment is overdue, the other party shall be liable for interest at a rate of 2% over EURIBOR, but in any event subject to a minimum of the statutory business interest rate per annum.
Extra-judicial collection costs shall be payable by the other party in conformity with the Besluit vergoeding buitengerechtelijke kosten (Dutch ruling on forfeiture of extra-judicial costs) or any future replacement.
Payments made by or on behalf of the other party shall be applied to the satisfaction of its obligations in the following order: extra-judicial collection costs, judicial collection costs, interest and outstanding principal amounts in order of the length of time they have been outstanding regardless of any instruction to the contrary by the other party.
The other party may only object to the invoice within the term of payment.
8. Retention of Title
APCE shall retain title to the goods which have been supplied by it, or are to be supplied by it, and title shall not pass to the other party until the following have been fully satisfied:
(A) the performance owed by the other party in connection with goods supplied or to be supplied under a contract or in connection with services rendered or to be rendered under such a contract;
(B) claims for damages arising from a breach by the other party in the performance of such a contract (or contracts).
The other party shall not be permitted to invoke a right of retention in relation to storage costs or to set off these costs against the performance of its obligations.
If the other party creates a new good out of or partly out of goods referred to in paragraph 8.1, this new good shall be deemed to have been created at APCE’s behest and to be held by the other party on APCE’s behalf; APCE shall remain the owner until such time as all the obligations referred to in paragraph 8.1 are discharged.
Goods in which, in accordance with the provisions in paragraphs 8.1 and 8.2, title has not passed to the other party but remains with APCE may only be disposed of by the other party in the normal course of its business.
If the other party is in breach of any of the obligations referred to in paragraph 8.1, APCE shall be entitled to collect or have collected the goods, title to which, in accordance with paragraphs 8.1 and 8.2, has not yet passed to the other party, from where they are located, at the other party’s expense. The other party herewith, in advance, irrevocably authorises APCE to enter or have entered for this purpose the premises used by or on behalf of the other party.
The other party herewith pledges to APCE, who accepts this pledge, all goods of which the other party becomes an owner or a co-owner through the creation of new goods from the goods supplied, through accession (by which the goods supplied are installed in or affixed to other goods), or through merger/fusion (by which the goods supplied are commingled or combined with the goods supplied), as security for all that which is owed or shall be owed at any time by the other party to APCE.
If there is good reason to believe that the other party will not fulfil its obligations punctually, the other party shall be obliged, at APCE’s first request, to provide, in the form desired by APCE, immediate and adequate security for the fulfilment of all its obligations, and to provide additional security if necessary. For so long as the other party has not complied herewith, APCE shall be entitled to suspend the fulfilment of its obligations.
If the other party has not complied with a request as referred to in paragraph 9.1 within 14 days after having received a demand letter to that effect, all its obligations shall become immediately due and payable.
10. Intellectual Property and Know-how
All documentation, sales brochures, illustrations, drawings, etc., which are made available by APCE to the other party shall remain APCE’s property.
The other party is not entitled to employ the above for any purpose other than in connection with the goods to which they relate.
The other party shall not be entitled to disclose to third parties the documents referred to in paragraph 10.1 or any information contained therein or of which it has acquired knowledge in any other way, unless APCE has expressly given its written consent thereto.
11. Complaints, Duty to Inspect, Limitation and Performance
The other party shall be under an obligation to inspect the goods upon delivery to determine whether they conform to the contract. The other party shall lose the right to invoke the non-conformity of the goods if it fails to notify APCE thereof in writing and giving reasons therefor as soon as possible and in any event within 30 days after delivery, or after the non-conformity could reasonably have been discovered.
Claims and defences based upon the alleged non-conformity of the delivered goods shall be time-barred upon the expiry of six months after delivery.
If the goods delivered do not conform to the contract, APCE shall, at its option, only be obliged to deliver the missing goods, or to repair or replace the delivered non-conforming goods.
The provisions set forth in this article are applicable as appropriate to the performance of services.
12. Figures, Measurements, Weights and Further Particulars
Slight deviations in measurements, weights, figures, colours, and other such particulars shall not be considered breaches.
Trade customs shall determine whether the deviations are slight.
A contract shall not be assigned by the other party without the prior written consent of APCE.
If the other party does not properly fulfil, or does not fulfil in a timely manner, any obligation which has to be fulfilled by it under the contract, and also in the event the other party is declared bankrupt, granted an official moratorium or placed under legal guardianship, or its business ceases operations or is liquidated, APCE shall be entitled, at its option, without any obligation to pay damages and without prejudice to any other rights it may have, to rescind the contract in whole or in part, or to suspend the performance (or further performance) of the contract. In those instances, APCE shall moreover be entitled to demand immediate payment of all amounts owed to it.
If proper performance by APCE is impossible in whole or in part, either temporarily or permanently, as a result of force majeure or one or more circumstances for which APCE cannot be held responsible, including those set forth in paragraph 14.4, APCE shall be entitled to rescind or terminate the contract.
If because of government regulation APCE is not able to receive such price, including any revised price, established pursuant to a contract, APCE may accept the maximum price allowed by law but shall nevertheless have the option at any time to rescind or terminate a contract on ninety days' notice to the other party.
Circumstances for which APCE cannot in any case be held responsible are: acts, except for wilful misconduct or gross negligence, of persons whose services it engages in the performance of its obligations; unfitness of goods used by APCE in the performance of its obligations; the exercise by a third party against the other party of one or more rights arising from a breach by the other party in the performance of a contract concluded between the other party and the said third party in respect of the goods to be delivered by APCE; work stoppages; lock-outs; sickness; import, export and/or transit prohibitions; transportation problems; non-fulfilment of obligations by suppliers; inability to obtain power, labour or materials; interruptions in production; natural and/or nuclear disasters; war and/or threat of war; act, order, regulation or request of government or other public authorities.
If the other party, after APCE has given it 30 days’ notice, does not co-operate in respect of the delivery, APCE is released from its obligations.
15. Nature of the Goods; Limited Guarantees
It is the responsibility of the other party to assess whether the status of the goods is satisfactory for its intended purpose(s). The goods will in any case be deemed to conform to the contract if the requirements as laid down in specifications are met. Requirements for any kind of use by the other party or any third party which have not been specifically included amd mentioned in the specifications can never lead to non-conformity of the goods.
APCE warrants that the goods delivered hereunder reflect the information provided in the specifications, if any, provided the goods are used under normal conditions, and in accordance with the instructions which accompany the goods. Such warranty shall be valid for the period defined in the particular product information sheet.
The foregoing guarantee is exclusive, and all other guarantees, whether express or implied, including any guarantees of merchantability, and any guarantees of fitness for purpose, but without limitation thereto, are excluded.
16. Liability; Damages
Notwithstanding article 15 of these general conditions, APCE shall only be liable for damage which can be attributed to its wilful misconduct or gross negligence.
APCE shall never be obliged to pay compensation for any damage other than to persons or tangible property.
APCE shall be entitled to assert all available legal and contractual means of defence in defending against its own liability to the other party as well as the against the liability of those of its subordinates and non-subordinates for whose conduct it may be (vicariously) liable by law.
No claim of any kind, whether based on delivery or non-delivery of goods or on tort (e.g. negligence, strict liability, etc.) shall be greater in amount than the purchase price of the quantity of goods to which such claim relates.
The provisions contained in this article do not affect APCE’s liability under mandatory law.
Any notices required or permitted by a contract shall be sent by registered or certified mail, fax, e-mail or any other means, return receipt requested to the parties at the addresses for the parties set forth at the beginning of the contract.
18. Applicable Law/Competent Court
Dutch law is applicable to all legal relations between APCE and the other party, with the exclusion of the conflict of laws provisions. The UN Law on International Sale of Goods (Vienna Convention) shall not be applicable.
All disputes arising from or in connection these general conditions and/or any sales transaction deriving therefrom are subject to the exclusive jurisdiction of the competent Court in Amsterdam, The Netherlands.
19. Interpretation and Conversion
If and insofar as, on the grounds of reasonableness and fairness or its unreasonably onerous character, no rights can be derived from any provision in these general conditions of sale, that provision shall be interpreted, as regards its content and effect, as closely as possible to the text as written but in such a way that rights can indeed be derived therefrom.
Nullity or invalidity of one or more clauses of these general conditions shall not prejudice the validity of the other clauses, and the nullified or invalid clause shall be deemed replaced by a clause which is valid and enforceable and the bearing of which shall be closest to the original bearing of such clause.