General Terms of Purchase of HAN University of Applied Sciences HAN-Terms of Purchase; Page 1 of 6 Versie14 september 2010
Content Article 1 Definitions Article 2 Quotation; Creation Article 3 Applicability Article 4 Changes Article 5 Delivery Article 6 Risk and property transfer Article 7 Warranty Article 8 Inspection and acceptance Article 9 Documentation Article 10 Price and price adjustment Article 11 Invoice and payment Article 12 Liability Article 13 Act of God Article 14 Annulment Article 15 Intellectual property Article 16 Confidentiality, ban on publication and security Article 17 Transfer of commitments, subcontracting and temporary staffing Article 18 Order, safety and the environment Article 19 Personnel Article 20 HAN land and buildings Article 21 Work on HAN land/ in HAN buildings Article 22 Supplier s obligations regarding the execution of orders Article 23 Applicable Law and Jurisdiction Article 1 Definitions 1. Definitions in these terms of purchase: a. HAN: HAN University of Applied Sciences, user of these General Terms of Purchase; b. supplier: the other party; c. agreement: the written agreements between HAN and the supplier. Article 2 Quotation; Creation 1. A quotation, price quote or other offer by the supplier counts as a confirmed offer. 2. Consequential costs of the quotation and those of any necessary samples are for the supplier. 3. HAN is only bound to an order it commissioned if given in writing or confirmed by a HAN authorised person. A current list of authorised persons may be obtained from the HAN Purchasing Department. 4. Any performance by the other party or preparations thereto prior to having received a written order or order confirmation from HAN as meant under Article 2.2, is for their account and at their risk. Article 3 Applicability 1. These Terms of Purchase apply to all agreements between HAN and the supplier with regard to : - the supply of goods and/or - the execution of orders (rendering services) Supplier s general terms are rejected expressly. By goods is meant goods and property rights. 2. Deviations from these terms of purchase are only binding if and in as far as has been agreed in writing. 3. If, when carrying out the agreement, use is made of drawings, models, specifications, instructions, sampling instructions and the like, provided or approved by HAN, these will be part of the agreement. 4. The Dutch text of these terms of purchase prevails over any translations thereof. Article 4 Changes 1. HAN is authorised at all times to change the scope and/or quality of the goods to be supplied in consultation with the supplier. Changes will be agreed in writing. 2. If, in the opinion of the supplier such a change bears consequences for the agreed fixed price and/or the time of delivery, he is obliged, before the change is acted upon, to inform HAN in writing of it as soon as possible, latest within 10 workdays after notification of the desired change. If the consequences for the price and/or the delivery time are unreasonable in the opinion of HAN, parties will confer on it. 3. The supplier is not entitled to change anything or to carry out changes without prior written consent of HAN. Article 5 Delivery 1. Delivery takes place at the agreed place and time and according to the applicable Inco term DDP (Delivered Duty Paid). 2. The agreed time of delivery is of essential importance. At untimely delivery, supplier will be in default without further proof of default. 3. HAN is entitled to postpone delivery for max. 3 months. In this case supplier will store the goods thoroughly wrapped, separated and so that they remain recognisable and supplier will conserve, secure and insure them. 4. Unless agreed differently in writing, supplier is not entitled to partial deliveries or partial performance. HAN is entitled to return them without prior notice for the account and risk of the other party. 5. Supplier needs to report imminent delivery time overruns in writing to HAN immediately. Leaves intact any consequences of such overrun in pursuance of the agreement or legal terms. Article 6 Risk and property transfer 1. Property en risk of the goods is transferred to HAN after delivery by supplier and acceptance by HAN according to Article 8 of these terms. 2. In case HAN puts materials at the disposal of the supplier such as raw materials, auxiliary materials, tools, drawings, specifications and software for the purpose of fulfilment of its obligations, these remain the property of Han. The supplier will keep these separated from objects belonging to him or third parties. The supplier will mark them as property of HAN. Article 7 Warranty 1. The supplier guarantees that the goods (and any installation or assembly of them) and orders carried out are in compliance with what has been agreed, are free of defects, have the promised qualities and are suitable for the purpose for which they are intended. 2. The supplier warrants the absence of any visible HAN-terms of puchase; Page 2 of 6
or invisible faults for the duration of the agreed warranty period or in default thereof, the warranty period usual for the business. The warranty period will be extended with a period equal to the period(s) during which the goods have not been used or could not be fully used due to a shortcoming as meant under this condition. New warranty periods equal to the one mentioned before will apply to replacement goods and replaced or repaired parts of those goods, including those parts of the goods on which replaced or repaired parts may have an effect. 3. If a defect comes up during a warranty period, HAN is entitled to either return the goods and demand immediate repayment of the payment made for those goods, or demand that the other party repairs, at the first summons of HAN and for their own charge and risk, all defects coming up during the warranty period and/or replaces the goods or faulty parts of them. 4. The supplier warrants that the supplied goods meet all relevant legal conditions regarding amongst other things quality, environment, safety and health. 5. The supplier warrants that date switches will not cause failures and/or defects of the goods delivered by supplier. Article 8 Inspection and acceptance 1. The delivery of the goods as described before in Article 5 does not imply acceptance by HAN. 2. Within 20 days after delivery, HAN will inspect the goods with reference to nature, state, quality and quantity and moreover to determine if the goods comply with what has been agreed between parties. 3. The inspection can mean testing and/or sampling of the goods. 4. HAN will inform the supplier in writing within a reasonable period of time after the inspection whether the goods have been accepted. In case HAN has not informed the supplier in writing about the acceptation within a reasonable period of time, HAN is considered to have accepted the goods. Acceptation does not imply the acknowledgement that the goods supplied comply with the warranties meant in Article 7. 5. In case of rejection of the goods supplied, the supplier will take care of repair or replacement of the goods supplied within the period agreed with HAN, but max 3 workdays, unless HAN prefers to terminate the agreement, in accordance with what has been decided in Article 14. If the supplier does not meet with this obligation within the period of time determined in this Article, HAN is entitled to take away the goods needed from a third party, or to have a third party take measures fori the account and risk of a the supplier. 6. If the supplier does not recall the rejected goods supplied within 5 workdays after the date of the written report, HAN is entitled to return the goods to the supplier for his account. Article 9 Documentation 1. The supplier is obliged to put corresponding documentation at HAN s disposal prior to or at the time of delivery. 2. HAN is free to use this documentation, including multiplication for own use. Article 10 Price and price adjustment 1. Prices are in Euros, exclude VAT and comprise all costs related to the compliance of the obligations of the supplier, amongst which costs are included for transport, insurance, packaging by the other party ad well as costs for import and export. 2. The prices are fixed, unless the agreement states circumstances that may lead to price adjustments and determines the way in which the adjustment is to take place. Article 11 Invoice and payment 1. Payment of the invoice will take place within 30 days after receipt of the invoice provided supply and acceptation by HAN have taken place or the order has been carried out by the supplier to the satisfaction of HAN and all corresponding documentation in Dutch (a.o. with regard to maintenance, operation and safety), drawings, quality and warranty certificates have been received by HAN. 3. In case the invoice has been received before the goods have been delivered in total, HAN will pay this within 30 days after completion of the delivery. 4. If the delivery takes place before the agreed delivery time, HAN is not held to settle the agreed amount earlier than within 30 days after the agreed delivery time, contrary to what is determined in section 1 of this Article without prejudice for that matter. 5. If delivery takes place in parts without it having been agreed, HAN is only bound to pay the agreed price after it has received the last partial delivery in good order, without prejudice to what has been determined in the other sections of this Article. 6. The invoice needs to be sent to the department of Financial Economic Affairs of HAN. The invoice needs to bear the name of the person who ordered/contact person and the purchase order number, the place of the costs and furthermore the goods (including corresponding identification marks and/or serial numbers). 7. Invoices not meeting this requirement will not be taken into consideration and will be returned. 8. HAN is entitled to (partially) defer payment if any shortcoming in the goods and possible installation/assembly is found, in as far as the shortcoming justifies that. 9. HAN is entitled to reduce the amount of the invoice with sums owed to HAN by supplier. 10. Payment by HAN in no way implies rights are waivered. 11. In case HAN does not meet its obligation to pay on time, HAN will not be held to more than to payment of the statutory interest and to not owe this any earlier than until after having been given a reasonable period by the supplier to finally meet its obligations. Article 12 Liability HAN-terms of puchase; Page 3 of 6
1. The supplier is liable for all damages of HAN or third parties as a result of his defective product because of which it does not offer the safety or has the characteristics that have been agreed or that HAN and/or the user are entitled to expect. 2. The supplier is liable for all damage suffered by HAN or third parties as a result of action or neglect on the part of the supplier, of his personnel or those who have been involved by him in the execution of the agreement, damage as a result of the untimely and/or not proper execution by the supplier of his obligations under that agreement. 3. The supplier indemnifies HAN for claims of third parties to compensation of damages because of liability as meant in the previous two sections of this Article and will come to terms with those third parties upon first request of HAN, or defend himself in court against claims such as aforementioned, to replace or together with HAN all this at the discretion of HAN. 4. The supplier will be adequately insured and remain insured against the liabilities as meant in this Article, and will grant HAN inspection of the insurance policy or policies if so desired. Article 13 Act of God 1. In case of a temporary Act of God, the supplier will immediately notify HAN in writing after the circumstance producing the Act of God has happened, stating the cause of the Act of God. In that case HAN is entitled to choose between: a. granting the supplier postponement to meet his obligations under the agreement for a reasonable period of max. 4 weeks. If the supplier is not able to finally meet his obligations under the agreement after this period, HAN is entitled to terminate the agreement immediately extra judicially, without being held to compensation of damages or any costs to supplier; or b. termination extra judicially of the agreement immediately without being held to compensation of damages and any costs to supplier. 2. In case of a permanent Act of God of the supplier, he will immediately notify HAN and HAN is entitled to immediately terminate the agreement extra judicially, without being held to compensation of damages or any costs to the supplier. 3. By Act of God is not understood in any case: lack of personnel, strikes, illness of personnel, raw material shortage, transportation problems, failing of or non-compliance with obligations of suppliers, production breakdowns at the supplier and liquidity or solvency problems on the part of the supplier. Article 14 Annulment 1. If the supplier does not meet one or any of his obligations under the agreement or of other agreements resulting from it, does not do so timely or properly, as well as in case of his (petition in) bankruptcy or suspension of payment and in case of closing down, liquidation or takeover or any comparable situation of the company of the supplier, HAN is entitled, without HAN being held to any compensation of damages, - to terminate fully or partially the agreement without further serving notice or judicial intervention by way of notification in writing to the supplier or - to suspend its obligation to pay, without prejudice to any other rights HAN is entitled to because of the foregoing, including HAN s right to full compensation. 2. Without prejudice to all other rights, HAN can fully or partially terminate as stated in section 1 of this Article, if by the supplier or one of his subordinates or representatives any benefit is or has been offered or provided to anyone part of HAN company or any of its subordinates or representatives. Article 15 Intellectual property 1. The supplier guarantees that the use, including the resale, of the goods and/or aids supplied by him will not violate patent law, trade mark law, model right, copyright or other third party right. 2. The supplier indemnifies HAN for any claims as a result of any violation of the rights meant before in section 1 and he will compensate HAN for any damages as a result of any violation. 3. The supplier remains entitled to any intellectual property he has on the goods delivered, unless it turns out from the nature or content of the agreement that applies what is determined hereafter in section 6. 4. In case judicially and extra judicially it is certain that the third party claim is right, the supplier is entitled to take measures to honour that claim, unless these measures harm the interest of HAN. 5. The supplier is entitled to use the information supplied by HAN, however only in connection with the execution of the agreement and with respect of what is determined in Article 16 of these terms of purchase. This information is and remains property of HAN. 6. If, for the purpose of and in the execution of the agreement products are developed, whereby intellectual property on these products could be the case, these rights become property of HAN and are considered to have been property of HAN from the beginning. If a deed is demanded for delivery, the supplier will now already for that case give HAN authority irrevocably to transfer. 7. The supplier is entitled to use the information provided by HAN, but only with regard to this agreement. This information is and remains property of HAN. Article 16 Confidentiality, ban on publication and security 1. The supplier and/or employees of the supplier may have access to data reducible to HAN students and staff when executing the agreements with HAN and/or work to be carried out for HAN as editor as meant in the Data Protection Act. Furthermore, the supplier may get access to other confidential HAN information. Definitely considered confidential information are personal details, details reducible to HAN relations, HAN ways of working and business details of HAN. The supplier is obliged to keep all information confidential of which he knows or in fairness HAN-terms of puchase; Page 4 of 6
should know that it is confidential information and to only use it for the execution of the agreement(s) with HAN. 2. Unless expressly agreed otherwise, supplier will not be allowed to record all confidential information of HAN that come to his notice from HAN data files in new own files of the supplier. 3. The supplier indemnifies HAN of all claims third parties might have against HAN as a result of a violation of the obligations stated in this Article. 4. If the supplier violates one or more stipulations of this Article, he forfeits per violation, without further serving notice required, a penalty of 50,000, due to HAN immediately, without prejudice to the right of HAN to claim full compensation. 5. Parties are bound to observe confidentiality of all data and information given by them or on their behalf. 6. Parties will have their employees and the third parties working for them in the scope of the execution of this agreement, sign the secrecy agreements drawn up in mutual consultation where one of the parties deems such necessary. 7. If information comes under the responsibility of the supplier outside the HAN buildings, HAN may declare further security measures to apply. 8. The supplier will not refer to the agreement in publications or commercials and will not use HAN s name as reference only after HAN s consent. Article 17 Transfer of commitments, subcontracting and temporary staffing 1. Without prior written consent of HAN, to which consent conditions may be made, the supplier is not allowed to fully or partially transfer or outsource an obligation under the agreement to a third party, or to use labour made available to him (contracted by the supplier) for the execution of the agreement. 2. Transfer or outsourcement leaves intact the obligations the supplier has to HAN under the agreement. 3. If the supplier fully or partially outsources the execution of the agreement to a third party, or uses labour made available to him, he is obliged to report to HAN which collateral is provided for the contribution of VAT, income tax and social benefits, which are statutory for employers. Article 18 Order, safety and the environment 1. The supplier and his employees, just as third parties arranged by him, are held to observe legal safety, health and environmental precautions. The suppliers seeks to have production, packaging, storage and the products themselves be as environmentally friendly as possible. 2. Also company regulations and instructions on safety, health and environment of the HAN need to be observed and will come in in evaluation talks. 3. If safety information sheets of a product and/or packaging are available, the supplier must always send them along with the same delivery. 4. Work that could negatively affect the environment by emission to air, water or soil, must be stated in the quotation explicitly. 5. The supplier must actively seek to reduce the impact on the environment of his products, packaging, raw and auxiliary materials. 6. During the whole term of this agreement, the supplier must continue to make HAN aware of developments and possibilities with regard to products and/or technologies that are less damaging to the environment in terms of health and safety and conservation. Article 19 Personnel 1. Personnel brought in by the supplier to execute the agreement will meet the HAN special requirements and if these do not apply to general requirements of competence and expertise. 2. If, in the opinion of HAN, there is insufficiently skilled personnel, HAN is entitled to order the removal of this personnel and the supplier is obliged to immediate replacement, with due regard for the provisions of section 1 of this Article. 3. HAN is entitled to inspection and testing all materials and equipment to be used at the execution of the agreement and to identification of personnel involved by supplier in the execution of the agreement. Article 20 HAN land and buildings 1. The supplier must inform himself prior to commencing the execution of the agreement of the circumstances at the premises and in the buildings of HAN where the work is to take place. If there are circumstances that could influence the execution of the agreement, the supplier must consider these at the execution of the agreement. 2. Costs of delay in the execution of the agreement caused by circumstances such as meant before are for the supplier. Article 21 Work on HAN land/in HAN buildings 1. The supplier ensures that his presence and the presence of his personnel on the premises and in the buildings of HAN do not impede the work progress of HAN and third parties. 2. The supplier and his personnel should inform themselves before commencement of the execution of the agreement of the content of the rules and regulations applying on the premises and in the buildings of HAN, a.o. with regard to safety, health and environment and to behave accordingly. 3. A copy of aforementioned rules and regulations will be made available by HAN to the supplier upon his request. Article 22 Supplier s obligations regarding the execution of orders 1. The supplier is responsible for completion of the work independently and on his own responsibility with due regard of the regulations in force for a.o. health, safety and environment. 2. The order needs to be executed well and thoroughly and according to the stipulations of the agreement. HAN-terms of puchase; Page 5 of 6
3. In principle, authorised representatives of the supplier are available at the work area during the hours the order is being executed, whereby their absence, replacement and availability will be arranged in consultation with HAN. 4. The supplier must have a valid proof of registration in the trade association relevant for his activities and to have a business licence in as far as this is required. Upon first request by HAN, the supplier must present aforementioned documents. Article 23 Applicable law and jurisdiction 1. Only Dutch Law applies to the agreement of which these terms of purchase are a part. The applicability of the United Nations Convention on contracts for the International sale of goods (the Vienna Sales Agreement ) is excluded. 2. All disputes resulting from this agreement will be presented to the competent court in Arnhem. HAN-terms of puchase; Page 6 of 6