Terms and conditions

GENERAL TERMS AND CONDITIONS OF PURCHASE OF DEFENTURE

Article 1 - General

These General Terms and Conditions of Purchase (GTCP) apply to all legal transactions concerning the purchase of goods and services, hereinafter referred to as "Order". The applicability and conditions of the Supplier are expressly rejected. A copy of the present GTCP shall be communicated to the Supplier on the occasion of its offer, and the Supplier shall be deemed to have accepted them without any reservation in the absence of an express written protest within 5 days thereof. Deviations from and/or additions to these GTCP are only binding after written confirmation by Defenture. The Agreement, to which these conditions apply, including the documents and annexes mentioned in the Agreement and which will all be included in the Agreement for all applications, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements, whether written or oral, with respect to the subject matter of the Agreement. No amendment, waiver or dispensation from the provisions of the preceding sentence shall be valid unless signed in writing by an authorised representative of the party against whom the amendment, waiver or dispensation is invoked. Obligations which by their nature are intended to continue after the expiry of the Agreement shall continue to have effect thereafter. These obligations include: liability, indemnification for violation of intellectual property rights, confidentiality, assignment of insurance payments, dispute resolution, domicile and applicable law. The Supplier cannot derive any right from the Agreement to obtain a follow-up order. Notifications by the parties pursuant to the Agreement shall be made in writing. Oral notifications, promises or agreements do not have legal force unless they have been confirmed in writing.

Article 2 - Confirmation

Orders for delivery and/or changes thereto as well as agreements are only valid if and insofar as they have been confirmed by Defenture  in writing.

Article 3 - Prices

All prices are fixed, exclusive of VAT, unless stated otherwise. All prices are based on the Incoterm condition D.D.P. at the agreed place of delivery and include proper packaging of the goods. The prices must be quoted in euros; settlement of exchange rate differences is not possible.

Article 4 - Delivery time

The Supplier is obliged to strictly observe the delivery date agreed in the Order. In the event that the date is exceeded, without this being accepted by Defenture in advance, Defenture shall be entitled, without notice of default or legal intervention being required and without prejudice to our other statutory rights, to cancel the Order in full or in part and to have it executed by a third party at the expense of the Supplier. The delivery shall only be deemed completed if the agreed whole is delivered in accordance with the Agreement at the location indicated by Defenture and at the agreed time. Defenture is entitled to postpone delivery of goods and/or execution of work until a time to be determined by it, as well as to designate a further place for delivery of goods and/or execution of work, without this leading to a creditor's default and without this giving rise to any right to compensation for the Supplier. The failure by either party to demand compliance with any provision within a period specified in the Agreement shall not affect the right to demand compliance after all, unless the party in question has expressly agreed in writing to the non-compliance.

If the Supplier exceeds the delivery date, Defenture shall be entitled to charge a penalty of 1.5% (with a minimum of €250) for the delayed delivery or service, calculated per full week of delay from the date of the agreed delivery date, but not exceeding 8% of the value of the delayed delivery or service. Payment of the penalty shall not release the Supplier from his contractual obligation.

Article 5 - Place of delivery

The place of delivery is indicated in the Order. In the event of incorrect addressing by the Supplier, the additional freight costs shall be borne by the Supplier. If the goods are collected by or on behalf of Defenture, the supplier shall provide assistance in loading without charging additional costs.

Article 6 - Shipment and Packaging

For DDP deliveries, the risk of transport damage shall be borne by the Supplier. Supplier must provide proper and adequate packaging of the goods in accordance with best commercial practice, to ensure that the material being shipped reaches its destination in good condition. Accompanying documents and consignment notes must bear our Purchase Order number and order date and an unambiguous itemised description of the scope of delivery including the Defenture item number per item line.

Article 7 - Identification of items

All identification instructions stated in the Order, on the drawing(s) and/or other specifications documents must be strictly adhered to and clearly applied; the supplier can be obliged, in the event of non-compliance with the above, to perform this identification at the delivery address within 24 hours of notification.

Article 8 - Transfer of ownership and risk

Ownership of the Products and therefore the risk of loss and/or damage to the Products shall pass from the Supplier to Defenture at the moment when the Supplier has placed the Products at the actual disposal of Defenture at the agreed location and time and Defenture has accepted the Products by signing a delivery receipt.

Article 9 - Invoices, shipping advice and packing lists

All invoices shall be sent within 7 days after delivery to: invoice@defenture.com. Failure to comply with the request in the Order to send shipping advices and packing lists to the prescribed addresses, as well as failure to complete these documents fully, with all necessary information (such as specified scope of delivery, order number, order date, Defenture article number, etc.), shall result in a delay in payment.

Invoices are only accepted if they correspond to the goods delivered per purchase order. (collective invoices are not accepted). Defenture shall pay invoices within 60 days of receipt unless the invoices state a more generous payment term, in which case Defenture shall pay the invoices within the (enhanced) payment term stated on the invoice.

Article 10 - Items to be made available

All items made available to the Supplier by Defenture  for the execution of an Order shall remain our property under all circumstances. Damage to goods made available by Defenture  shall be at the expense of the Supplier.

Article 11 - Drawings and moulds

All information, drawings, moulds etc. made available by Defenture  shall remain property of Defenture and must be returned to Defenture upon request after completion of manufacture. If Defenture decides to adjust the specifications, it shall inform the Supplier of this in writing.

The Supplier is at all times obliged to make any technical changes or additions to the information, drawings and moulds made available, which are the subject of the Agreement, as required by Defenture.

Amendments and supplements shall not lead to an increase in the agreed price and/or extension of the agreed delivery period, except if and insofar as this is reasonable and the Supplier's proposal to increase the price and/or extend the agreed delivery period is communicated to Defenture in writing, within five days of Defenture's request for this amendment or supplement and is accepted by Defenture.

Article 12 - Secrecy and exclusivity

The Supplier is obliged to maintain absolute secrecy towards third parties with regard to all information made available to him by virtue of the Order. This includes regulations, models, drawings, specifications, diagrams, designs and the like.

The Supplier is not entitled to use specific information and/or knowledge for publicity purposes without our prior written consent.

The Supplier shall not be permitted to use this information or allow it to be used by third parties for or in connection with any purpose other than making the delivery to Defenture, unless we have given our express prior written consent.

Article 13 - Rejection

Neither receipt nor payment of the goods shall imply acceptance. In the event that the goods do not meet the requirements described in the Order and/or specification(s), Defenture shall be entitled, without notice of default or judicial intervention and without prejudice to our other statutory rights, to cancel the Order wholly or in part and to have it carried out by a third party at the expense of the Supplier.

Article 14 - Quality control

Supplier is obliged to carry out adequate control on all necessary activities related to the execution of the Assignment.  Supplier shall grant unlimited access to the relevant inspection and/or test reports.

Certificates of Conformity (COC), test reports or specific inspection records, if agreed, are part of the delivery.

The Supplier must allow representatives of Defenture and/or the State access to its premises for progress and quality checks upon request.

Article 15 - Supplier's information obligation

The Supplier shall inform Defenture of all relevant matters that may affect the delivery time and quality. Defenture shall be informed in time of any disruptions and/or deviations and to be informed of the measures to be taken.

If the Supplier receives requests from third parties for subsequent deliveries, it shall inform Defenture thereof without delay.

Article 16 - Subcontracting

Full or partial outsourcing of the goods and/or services commissioned by Defenture to the contractor may not take place without Defenture’s written consent.

Article 17 - Warranty

The Supplier guarantees that all goods delivered are of first class design, construction, execution, material, composition and quality, are performed in a competent manner, comply with "state of the art" techniques, are in accordance with the drawings, other data, the standards and specifications applied by Defenture and the requirements set out in the Agreement, are suitable for the intended use and are safe and in accordance with any (government) regulations.

The Supplier undertakes to provide a guarantee period of at least 24 (twenty-four) months after commissioning, unless the parties agree otherwise in writing, during which time the Supplier is obliged to rectify shortcomings or redeliver free of charge, irrespective of the cause of the shortcoming and without prejudice to the Supplier's liability pursuant to the agreement.

The Supplier shall obtain and maintain adequate insurance cover for all liability, including corporate liability, product liability and design liability, which it may incur as a result of its offers, the Agreement and its performance, with an approved insurance company. At Defenture's first request, the Supplier shall promptly submit the policy and proof of premium payment to Defenture.

Article 18 - Liability

The Supplier is liable for all costs and damages incurred by Defenture, its employees and/or auxiliary persons as a result of any shortcoming on the part of the Supplier in the fulfilment of its obligations as well as for all damages caused to Defenture, its employees and/or auxiliary persons by the Supplier, its personnel, persons and companies engaged by it and/or by shortcomings in items delivered or to be delivered by it, performance of work.

The Supplier shall furthermore indemnify Defenture against all adverse consequences in connection with claims from third parties, including claims from third parties due to product liability as a result of a defect in a product supplied by Defenture to a third party, which (partly) consisted of products and/or materials supplied by the Supplier.

The Supplier shall indemnify Defenture, its employees and auxiliary persons engaged for the performance of the Agreement against any claim by third parties in connection with performance by the Supplier.

The Supplier shall strictly comply with all national and international governmental export, import and use restrictions in connection with the delivery of goods. The Supplier shall indemnify Defenture against any damage caused to Defenture by any breach of these restrictions.

Unless otherwise agreed, the following obligations shall apply to Suppliers:

1. The supplier is not permitted to engage subcontractors and/or third parties without the consent of Defenture;
2. The Supplier must specify in his quotation the amount intended for wages and is obliged, upon request, to provide Defenture with further information in this regard;
3. The Supplier must have available and, if requested, provide Defenture with: a (work) record containing the name and address details (which only applies if this contract takes place under Dutch law), date of birth, citizen service number/National insurance number (it is sufficient to provide one of these numbers), a copy of an identity document and a specification of the hours worked for each employee who is put to work by the Supplier for Defenture;
4. Supplier shall ensure that its employees can identify themselves at any time;
5. Supplier shall, if requested, demonstrate that his employees have a valid residence permit or work permit
6. The supplier must strictly fulfil its obligation towards the employees it employs;
7. The Supplier must provide Defenture with the number under which the Supplier files its wage tax return upon first request;
8. The Supplier must comply with the provisions of the Implementing Regulations for hirer's, chain and contractor's liability 2004 (Uitvoeringsregeling inleners-, keten- en opdrachtersaansprakelijkheid 2004) for the Netherlands or an equivalent regulation which determines the joint and several liability for the social and fiscal debts of the co-contracting party and/or third parties which applies to the Agreement;
9. At the request of Defenture, the Supplier shall each time provide a recent and original statement of payment history for tax and social debts, wage tax and social insurance contributions and/or tax and social debts, issued by the tax collector and/or competent authority;
10. The Supplier shall indemnify Defenture against all possible claims by the received and/or competent authorities pursuant to the chain liability applicable to the Agreement or an equivalent regulation determining joint and several liability for the social and fiscal debts of the co-contracting party and/or third parties, on account of the Supplier's failure to fulfil any obligation to pay tax and social debts, wage tax and social insurance contributions and/or tax and social debts by the Supplier or subcontractors and/or third parties engaged by it.

Defenture is always entitled to  pay to the Supplier, any tax or social security debts owed by the Supplier with respect to the deliveries, works and services, including wage tax and social security contributions, for which Defenture would be held jointly and severally liable under the relevant statutory, tax and social security regulations applicable to the Agreement, and, in the event of application of the Dutch Collection Act (Article 35) and the Implementing Regulations for hirer's, chain and contractor's liability 2004 (Uitvoeringsregeling inleners-, keten- en opdrachtersaansprakelijkheid 2004), by means of payment into the Supplier's blocked account (g-account). Defenture shall inform the Supplier in writing if it wishes to exercise the right of payment into a blocked account as provided for in this provision.

Defenture is also entitled at all times to pay the social and fiscal debts, payroll tax and social insurance contributions due in respect of the delivery, works and services directly to the tax collector and/or competent authorities by means of deductions from the amounts it owes for those deliveries, works and services. Defenture shall inform the Supplier by registered letter if it wishes to exercise the right provided for in this provision.

In cases as referred to above, Defenture has thus discharged the corresponding obligations towards Suppliers.

The Supplier is obliged to stipulate the provisions of this article - including the present paragraph - expressly for the benefit of Defenture and to include them in any subcontracting agreement, on forfeiture of a penalty of € 50,000, payable immediately without notice of default, to Defenture, without prejudice to Defenture's right to fulfilment and/or damages.

Article 19 - Intellectual property

All (intellectual) property rights - including but not limited to all copyrights and patent rights - that have arisen or may arise in connection with and arising from this Agreement are vested in Defenture. Insofar as these rights are not already vested in Defenture, the Supplier hereby transfers these rights to Defenture free of charge, which transfer shall be accepted by Defenture as of now upon creation of these rights.

The Supplier hereby declares that it is authorised to make the transfer referred to in Article 19 and that it has received all (intellectual) property rights (if any) from the personnel of the Supplier and from (the personnel of) third parties engaged by the Supplier, in such a way that the Supplier can transfer the aforementioned rights in the manner and to the extent stipulated in this Article 19.

Insofar as a further deed is required for the transfer of such rights, the Supplier hereby irrevocably authorises Defenture to draw up such a deed on behalf of the Supplier, without prejudice to the Supplier's obligation to cooperate with the transfer of such rights at Defenture's first request and without being able to attach conditions to this. Any costs associated with establishing certain intellectual (property) rights (e.g. patent) shall be borne by Defenture. The Supplier hereby irrevocably authorises Defenture to register the transfer of these (intellectual) property rights in the relevant registers. Insofar as applicable, the wages paid to the Supplier's personnel include fair compensation for the loss of intellectual property rights.

The Supplier hereby also transfers the ownership of all present and future data carriers on which the results of the work under this Agreement are recorded or can be recorded to Defenture, insofar as the ownership of these data carriers does not already rest with Defenture.

The Supplier hereby waives towards Defenture any moral rights that it may have arising in connection with and arising from the work, to the extent that the applicable regulations permit such a waiver. The Supplier guarantees that the employees or contractors involved on its behalf waive all possible moral rights accruing to them towards the Supplier in the employment contract or agreement for orders in force between the employees or contractors and the Suppliers, to the extent that the applicable regulations permit such a waiver and insofar as applicable.

The Supplier guarantees that the results of the work do not infringe, either in whole or in part, on any (intellectual) property rights of third parties.

The Supplier indemnifies Defenture against all (impending) claims by third parties in respect of any infringement of (intellectual) property rights of those third parties, including personality rights and claims relating to know-how, unlawful competition, etc.

In the event of an infringement, the Supplier shall take, at its own expense, all measures that may help to minimise stagnation  on the part of Defenture and limit the additional costs incurred and/or damage suffered by Defenture, and shall compensate all damage suffered by Defenture in connection with any infringement of (intellectual) property rights of third parties.

Without prejudice to the provisions of this Agreement, Defenture is entitled, if third parties hold Defenture liable in the event of infringement of (intellectual) property rights, to dissolve the Agreement in writing, out of court, in full or in part, with or without retroactive effect, without prejudice to its further rights. Defenture shall only exercise its right to dissolve the Agreement after prior consultation with the Supplier, unless continuation of the Agreement cannot reasonably be demanded of it. In the event of a difference of opinion between the parties regarding the (intellectual) property rights to the results of the work under this Agreement, it shall be assumed that these (intellectual) property rights belong to Defenture, until counter-evidence is provided by the Supplier.

If an Agreement comes to an end, all (intellectual) property rights transferred pursuant to the Agreement in question shall not be subject to cancellation. If Defenture considers this desirable, it is also entitled to demand surrender of the results developed and being developed by the Supplier in connection with the work for Defenture. Insofar as Defenture, contrary to the GTCP and in accordance with the Agreement, does not possess the (intellectual) property rights to the results of the work, Defenture is entitled, upon termination of the Agreement, to continue to use the aforementioned results on the basis of a (tacitly) obtained worldwide licence which is not subject to cancellation, unless it has been established in court that Defenture has imputably failed to fulfil its obligation under the Agreement.

Article 20 - Payment

Unless we complain about the quality or quantity of the goods delivered after receipt of the goods, payment shall be made within 60 days of receipt of the invoice, or within 14 days after deduction of a 3% discount, unless otherwise agreed in the order.

We shall not make any advance payments, unless otherwise stated in the Order, in which case all advance payments made shall be deemed to be loans to the Supplier until the Order has been fully delivered.

A bank guarantee may be required in the case of advance payment. Invoices which, in our opinion, contain insufficient data for processing, such as order numbers etc., will be returned by us for completion.

The Supplier is not entitled to transfer the rights and obligations arising from the Agreement to a third party without Defenture's written consent. Third party is not understood to mean an existing or future legal entity belonging, now or in the future, to the same group of companies as the Supplier as referred to in Article 2:24b of the Dutch Civil Code.

Defenture is at all times entitled to set off any amount it owes the Supplier against any amount that the Supplier or companies affiliated with the Supplier owes Defenture, whether or not due and payable, subject to conditions or a time limit. The Supplier is only entitled to any set-off with the written consent of Defenture.

Article 21 - Dissolution and termination

Defenture is entitled to terminate the Agreement prematurely in writing (in full or in part) with immediate effect, without any reminder or notice of default being required and without Defenture being liable for any compensation of costs or damage, if

1. Supplier imputably fails to comply with any provision of this Agreement and the Supplier does not remedy its shortcomings within seven days after Defenture has requested the Supplier to do so in writing;
2. Supplier requests (temporary) suspension of payment or is granted (temporary) suspension of payment, requests his bankruptcy or is declared bankrupt, or enters into a private agreement within this framework;
3. Supplier's business is liquidated or dissolved;
4. Supplier ceases its current business;
5. a significant part of the Supplier's assets are seized;
6. Supplier changes or causes to change the control over its business, whether or not on its own initiative, which changes are in any case deemed to be present if a third party directly or indirectly ultimately acquires at least 50% (economic) ownership and/or voting rights over Supplier or if the (legal) person who directly or indirectly ultimately held at least 50% (economic) ownership and/or voting rights over Supplier at the time the Agreement was entered into no longer directly or indirectly holds at least 50% (economic) ownership and/or voting rights over Supplier;
7. The Supplier intends to transfer the rights and/or obligations under the Agreement in whole or in part to a third party without Defenture's prior written consent, but the third party does not agree;
8. The Supplier intends to enter into (commercial) relations directly or indirectly for itself or for others with buyers, customers and/or suppliers of Defenture;
9. The Supplier is unable to carry out the changes or additions to the specifications desired by Defenture under conditions acceptable to Defenture;
10. The Supplier does not meet the obligations arising from the agreement in time or in a decent manner.

Article 22 - Force majeure

Neither party shall be liable or obliged to pay compensation for damage suffered by the other party that is the result of a (foreign) cause not attributable to them as a result of force majeure. Any penalties for delay shall not apply if and insofar as the delay is caused by force majeure. The parties hereby expressly agree that the following situations, among others, shall constitute force majeure if they affect themselves: import or export restrictions and trade embargoes, disasters, extreme weather phenomena such as, but not limited to, severe storms and floods, fire, terrorist actions, armed conflict, war, riots.

As long as the force majeure lasts, the deliveries and other obligations of the Supplier shall cease. If the force majeure lasts longer than one month, Defenture is entitled to dissolve the Agreement with immediate effect outside court by means of registered letter (in full or in part), without this giving rise to any right to compensation.

Article 23 - Divisibility

If one or more provisions of these GTCP or of the Agreement is/are declared invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remainder of the provisions contained in this Agreement shall not in any way be affected. If any such invalid, unlawful or unenforceable provision affects the substance of the GTCP or the Agreement, the Parties shall immediately negotiate in good faith to find a legally valid substitute provision.

Article 24 - Disputes

Agreements with Defenture are governed by Dutch law. The "United Nations Convention on contracts for the international sale of goods 1980" (CISG) (Het Weens Koopverdrag) does not apply to the Agreement.

Disputes that may arise between Defenture and the Supplier as a result of this Agreement, or as a result of further agreements arising from it, shall be submitted exclusively to the competent court of the Central Netherlands District Court .