Terms & Condititons
GENERAL CONDITIONS OF PURCHASE of the subsidiary companies of GEMCO MOBILE SAFETY B.V. SON
1.1 Products: all items and services delivered to Gemco or to be delivered to Gemco for the fulfilment of an order and the performance of work, and all products delivered to Gemco’s suppliers or Gemco’s subcontractors.
1.2 Performance of work: performance ordered in so far as this does not consist of the delivery of items.
1.3 Seller: every natural person or legal entity from whom Gemco orders products or with whom it negotiates such orders.
1.4 Gemco: Gemco Mobile Safety and all its subsidiaries.
2.1 These general conditions of purchase apply to all orders from and agreements with Gemco concerning the delivery of products by the seller, unless explicitly and unambiguously agreed otherwise.
2.2 Deviating agreements with agents or staff of Gemco and/or made in purchase orders or letters, together with the general conditions of the seller, are only valid if and in so far as they have been explicitly and unambiguously accepted or confirmed by Gemco.
2.3 Acceptance of the general conditions of the seller in the manner mentioned in clause 2.2 will on no account imply that those conditions will also apply to other transactions between the seller and Gemco.
3 Quotations, orders and the conclusion of the agreement
3.1 All offers and quotations are deemed to be binding in so far as they are not explicitly issued without engagement.
3.2 Orders are placed by Gemco directly with the seller. All correspondence of the seller must state Gemco’s order number. An agreement is only deemed to have been concluded if the seller has confirmed the orders placed by Gemco within 2 working days or has commenced fulfilment of the agreement. Deviations or additions in order confirmations are deemed invalid.
3.3 Provided the seller has not confirmed the order in accordance with the provisions of clause 3.2, Gemco is entitled to withdraw or alter the order.
4.1 Delivery terms specified in the purchase order are as described in the latest edition of the ICC Incoterms.
4.2 The dates quoted for delivery are to be considered deadlines. Without prejudice to seller’s obligation to deliver the products on time, seller shall give Gemco notice in writing immediately if any delay is foreseen. The seller is in default simply by exceeding the delivery term. The delivery terms quoted by Gemco apply from the time the order is placed by Gemco.
4.3 If the seller exceeds the delivery term for whatever reason, Gemco has the right to cancel the agreement at its option wholly or partially, without notice of default or legal intervention being required, provided always that Gemco shall be entitled to be indemnified by the seller for all losses, damages, costs and expenses including fines which Gemco may occur directly or indirectly as a result of such failure.
In so far as is necessary, the products are delivered in packing suitable for the agreed transport. If the seller is legally obliged to take back the packing, Gemco can send back the packaging free of charge, unless otherwise agreed.
All prices shall be fixed and binding. Price variations shall be accepted by Gemco only if and to the extent that they are occasioned by variations of or additions to the contract.
7.1 All payments are made in accordance with the method of payment agreed between the parties. Unless agreed otherwise, payment is made within 60 days of receipt of the products and invoice and only once the products have been inspected and found entirely in order by Gemco or by third parties designated by Gemco. Gemco explicitly reserves the right of settlement.
7.2 If payment in advance is stipulated, the seller shall provide an advance payment bank guarantee for the same amount, unless otherwise agreed upon. If payment is not made on time, Gemco is only deemed in default after appropriate written notice of default or legal intervention.
7.3 All invoices must be submitted to Gemco in duplicate, referring to Gemco’s purchase order number, and must be sent to the Gemco company or subsidiary which has placed the order. Invoices that do not comply with the above, or which are not in accordance with legal stipulations or which do not contain enough information shall be returned.
8.1 Approval of the products does not discharge the seller from his guarantee obligations and liabilities.
8.2 If, after inspection, it is evident that the products do not satisfy the requirements made in the specifications, drawings, samples and/or other requirements in the order, Gemco is entitled to require the seller to make improvements or new products available within a period fixed by Gemco, which do satisfy the inspection requirements and Gemco is entitled to cancel the agreement without prejudice to the provisions of Article 10.
9 Bankruptcy, suspension of payment, etc.
If the seller does not fulfil, does not fulfil on time or adequately as a result of a bankruptcy petition, bankruptcy, liquidation of the company or because suspension of payment has been requested or obtained, Gemco is entitled unilaterally to cancel the agreement in full or partially or to suspend its implementation in full or partially by registered letter, without further notice of default or legal intervention, without being bound to make any compensation and without prejudice to all further rights to which it is entitled.
10.1 Announcements by or on behalf of the seller regarding the quality, composition, treatment in the widest sense, potential applications, properties, etc. of the products are binding upon the seller unless explicitly agreed otherwise in writing.
10.2 The seller guarantees that the quality of the products is good, that the products satisfy legal requirements and other government laws and regulations at the time of delivery and that the quantity and quality of the products delivered entirely correspond to the requirements made by Gemco in the purchase order and are the same as those described in the specifications, samples, drawings etc.
10.3 Gemco is authorised to demonstrate the alleged inferiority of the products using all available proof.
11 Ownership of resources
11.1 Drawings, models, samples, specifications, tools and other resources made available to the seller by Gemco, or made or procured by the seller for Gemco and at Gemco’s expense, remain or become the property of Gemco at the time of manufacture or procurement.
11.2 The seller is to retain these resources at his own risk, clearly marked as being the property of Gemco, and to insure them adequately.
11.3 The seller will surrender these resources to Gemco, in good condition, at the same time as delivery of the products, unless other instructions are given.
11.4 The seller will in no way infringe the industrial property rights attached to the resources.
The seller is bound to observe secrecy with respect to everything known to him on the basis of the purchase order in respect of all such information in the widest possible sense about Gemco’s company information, including the provisions of Article 11.
13.1 In all cases of fault on the part of the seller, Gemco is entitled to suspend fulfilment of its obligations including the obligation to make payment, until the fault has been rectified.
13.2 Without prejudice to the provisions of clause 13.1 and its other rights pursuant to the law, in the event of any fault by the seller Gemco is entitled to cancel the agreement fully or partially.
13.3 The seller is liable vis-à-vis Gemco for the direct and indirect damage which Gemco suffers as a result of a fault attributable to the seller.
13.4 If a complaint is founded, bearing in mind Article 10, the seller is bound either to repair the faults or to replace the products, as Gemco shall choose, or to credit Gemco with the full or partial invoice value of the products.
13.5 The seller will vouch for Gemco in respect of third-party claims for any losses resulting from the defectiveness of its products, unless the cause of such losses cannot reasonably be blamed on the seller. Gemco will notify the seller in writing of such possible third-party claims within 7 working days.
13.6 If Gemco is held liable by third parties for any damage resulting from the agreement between Gemco and the seller and for which Gemco is not liable pursuant to these General Conditions or the law or practice, the seller will fully indemnify Gemco in this respect and will refund to it everything which it would have to pay third parties on this basis.
14 Force Majeure
Neither seller nor Gemco shall be liable for any failure to fulfil any term or condition of the purchase order if fulfilment has been delayed, interfered with or prevented by any event which is beyond the party concerned. The parties are entitled either to demand that the agreement will be adapted to the circumstances or to suspend fulfilment of the agreement or to cancel the agreement fully or partially without legal intervention and without being bound to make any compensation.
15 Conflict with legal stipulations
15.1 Should any stipulation of these General Conditions not be applicable or be in conflict with public order or the law, only the relevant stipulation will be considered unwritten, but the General Conditions will remain fully in force in other respects.
15.2 Gemco explicitly reserves the right to amend any challenged stipulation into a legally valid stipulation.
16 Transfer of rights and obligations
16.1 Neither of the parties is entitled, without the prior written permission of the other party, to transfer the rights and obligations ensuing from the agreement fully or partially to a third party.
16.2 If, after conclusion of the agreement, control of all or a major part of the activities of the seller is directly or indirectly transferred into other hands, the seller is to inform Gemco of such immediately in writing. Gemco still reserves the right unilaterally to terminate the agreement fully or partially by registered letter, without legal intervention and without being bound to make any compensation. However, this right lapses if Gemco does not announce that it will make use of its rights within 1 month of the said transfer being notified to Gemco by the seller in writing.
17 Applicable law
Dutch law applies exclusively to this agreement and the obligations ensuing from it to which these conditions apply fully or partially, to the exclusion of the Vienna Purchase Treaty 1980 (C.I.S.G.).
18 Settlement of disputes
All disputes arising in connection with these general conditions, or contracts resulting thereof, shall be finally settled in accordance with the Rules of the Netherlands Arbitration Institute by three arbitrators appointed in accordance with said rules. The place of arbitration shall be in Rotterdam and the arbitral procedure shall be conducted in the Dutch language.