BEAPHAR B.V. PURCHASE TERMS AND CONDITIONS JUNE 2022
Article 1 Definitions
1.1 Associated Person: in relation to Supplier, a person (including an employee, agent, subcontractor or subsidiary) who performs services for or on behalf of the Supplier;
1.2 Supplier: the other party vis-à-vis Beaphar in respect of order(s) to supply goods and/or render and/or perform works;
1.3 Delivery: the supply of goods and/or the rendering of services and/or the performance of works;
1.4 Agreement: every agreement concluded between Beaphar and the Supplier, relating to the supply of goods and/or the rendering of services and/or the performance of works by or on behalf of the Supplier;
1.5 Product: an article, a service, and/or a work;
1.5 Materials: all materials and auxiliary items necessary for the use, maintenance, implementation and modification of the Products;
1.6 Beaphar: the Supplier’s contractual counterparty as defined in the quotation/agreement: the private limited company Beaphar B.V., having its registrated office and principle place of business at Drostenkamp 3 Raalte (8101 BX), the Netherlands;
1.7 Beaphar Supplier Code of Conduct: refers to Beaphar’s supplier policies as recorded in the Supplier Code of Conduct, as updated by Beaphar from time to time.
Article 2 Applicability of these Purchase Terms and Conditions
2.1 These Purchase Terms and conditions shall apply to all offers and quotations made by the Supplier and any requests for quotations and orders made by Beaphar for the supply of Products by or on behalf of Suppliers to Beaphar, as well as to Agreements relating to the Deliveries by or on behalf of the Supplier to Beaphar, unless the Parties have expressly agreed otherwise in writing. These Purchase Terms and Conditions shall also apply to any future or subsequent agreements, even if no reference was made to these Purchase Terms and Conditions during the conclusion of the latter.
2.2 The general purchase- and/or delivery terms and conditions, payment and other conditions of the Supplier shall not apply - not in addition to these Purchase Terms and Conditions either - and the possible applicability thereof is hereby explicitly excluded, except if and insofar as these have been expressly accepted by Beaphar in writing.
2.3 Deviations from and/or additions to these Purchase Terms and Conditions are only valid if and insofar as Parties have been agreed explicitly and in writing and shall only apply to the Agreement concerned. No future rights can be derived from agreed deviations from and/or additions to these Purchase Terms and Conditions.
2.4 In case of conflict between what has been separately agreed between the Parties in writing and these Purchase Terms and Conditions, what has been separately agreed shall prevail.
2.5 The invalidity, annulment or nullity of any provision of the Agreement or of these Purchase Terms and Conditions, shall not affect the other provisions of the Agreement and these Purchase Terms and Conditions. The other provisions will remain fully in effect.
2.6 In the event of invalidity, nullity or annulment, Beaphar and Supplier shall consult as soon as possible at Beaphar’s first request to agree new provisions to replace the invalid and/or the null and/or annulled provisions, thereby taking the purpose and meaning of the null or annulled provisions into account in as far as possible.
Article 3 Conclusion of the Agreement
3.1 Agreements between Beaphar and the Supplier are only concluded after:
a. Beaphar has given the Supplier an order (whether or not referred to as a purchase order) and the Supplier has explicitly or implicitly accepted this order (whether or not in writing), or;
b. Beaphar has expressly accepted an offer (quotation) made by the Supplier in writing, whichever event occurs first.
3.2 An offer submitted by Supplier is irrevocable and valid for a term of at least 90 days after it has reached Beaphar, unless the Parties have agreed a deviating term or a longer term.
3.3 All proposals on the part of Beaphar are without obligation and therefore may be revoked by Beaphar until they are accepted by the Supplier.
3.4 Any costs ensuing from the preparation and submission of an offer or quotation will be borne by the Supplier.
3.5 In case of on-call agreements or framework agreements, the (sub) agreement will be considered to be concluded on each occasion when the order for a (sub) performance, within the context of the on-call agreement or the framework agreement is sent by Beaphar.
3.6 The Supplier cannot derive any right to follow-up assignments from this Agreement, unless expressly agreed in writing.
Article 4 Changes to the Agreement
4.1 Beaphar is at all times authorised to amend the price, volume, content, delivery time or term and/or nature of the Delivery in consultation with the Supplier.
4.2 Amendments will only have legal effect between the parties insofar as they have been agreed between the parties in writing and provided that the Supplier has notified Beaphar without delay in writing of the consequences of the amendments to the Agreement and Beaphar has expressly accepted these consequences.
4.3 Beaphar will be authorised to dissolve the Agreement in writing without notice of default by giving written notice to the Supplier, if the Supplier performs or persists in performing the Agreement contrary to the notification duty of Article 4.2.
4.4 In the case of Delivery problems or delay, Supplier shall inform Beaphar immediately. If Deliveries cannot be supplied by Supplier within the agreed term, Beaphar at all times has the right to order such deliveries from third parties at the expense of Supplier.
4.5 Amendments to the Agreement shall only be valid with respect to the Agreement concerned. As a result, Supplier cannot derive any future rights from agreed amendments to the Agreement.
Article 5 Delivery
5.1 The Supplier must deliver and/or perform the goods and/or works and/or services within the agreed periods or at the agreed times. All agreed periods are strict and final deadlines.
5.2 The Delivery of goods takes place at the place agreed between the parties, in accordance with the Incoterm Delivery Duty Paid (DDP) in force at the time of the conclusion of the Agreement. This means that the Supplier shall take care of the transport of the goods to the destination indicated by Beaphar at his own risk and expense and shall also pay the import charges and levies and take care of the corresponding formalities.
5.3 The Supplier shall provide the goods with a packing list stating Beaphar’s purchase order number, the item numbers, quantities and descriptions. The Supplier shall further mark the package as indicated by Beaphar.
5.4 The Supplier is not entitled to make partial deliveries. Beaphar is entitled to refuse services that are only rendered in part in comparison with the agreed services.
5.5 Goods that have been sent to Beaphar in advance of the scheduled delivery date do not have to be accepted by Beaphar and/or may be returned to the Supplier at the Supplier’s expense.
5.6 Delivery quantities of goods form the essence of the Agreement. Beaphar is authorised, without notice of default or court intervention, to terminate the Agreement or part thereof and/or to not accept goods, if the Supplier is in default with respect to the delivery quantities, unless Beaphar has agreed to changed quantities in writing.
5.7 The term delivery shall include delivery of all the auxiliary devices and all the associated documentation such as quality, inspection and warranty certificates, maintenance instructions, user’s guides, manuals and any other documents as prescribed by legislation and/or by Beaphar. The documents mentioned in the previous sentence shall be drawn up in the Dutch or English language, or be accompanied by a translation in one of these languages. Beaphar is entitled not to take receipt of the goods to be delivered, if the regulations and provisions of this paragraph have not been complied with. In that case, the goods will be considered not to have been delivered. Article 6 Transfer of title and risk; right of retention
6.1 The risk and ownership of the goods transfers to Beaphar when they are delivered to Beaphar at te place of delivery mentioned in Article 5 and Beaphar has accepted the goods, unless the goods are already damaged at the time they are offered or the goods are damaged/lost after delivery due to a fault that was already present before the delivery. In the latter case the risk and ownership of the goods shall be deemed to have never transferred to Beaphar. The Supplier guarantees Beaphar that the full and unencumbered title to the goods is delivered.
6.2 Supplier shall mark the goods owned by Beaphar as such and shall safely store, protect and insure them until the time of delivery to Beaphar. Supplier shall bear the risk of the loss or destruction of or damage to those goods and data and shall keep them insured for their replacement cost against risk mentioned. Supplier shall not grant third parties access to these goods nor show them at exhibitions or use them or make them available to third parties without Beaphar’s prior written consent.
6.3 If Beaphar, within the framework of the Agreement, for a performance in the form of a service, makes part payments in anticipation of the complete delivery of this service, Supplier shall transfer to Beaphar now for then the ownership of the rights in that part already delivered, which transfer Beaphar shall accept now for then.
6.4 Supplier is not authorised to exercise the right of retention or the right to claim back goods.
Article 7 Performance and the Services of Works
7.1 The provision of the services will be deemed to be completed at the time when Beaphar has approved the provided services in writing.
7.2 Supplier shall perform the services as a good contractor, using qualified personnel and/or third parties.
7.3 Supplier may only instruct third parties to perform the activities with prior written permission of Beaphar.
7.4 Beaphar reserves the right to submit the personnel and/or third parties to be engaged by Supplier for the provision of the services to its approval before it issues the order.
7.5 If, during the period of the Agreement, it appears that the personnel and/or third parties engaged by Supplier do not function satisfactorily or in accordance with the reasonable expectation of Beaphar, Supplier shall immediately replace the person(s) concerned at Beaphar's request. The foregoing shall also apply in case of sickness or absence of an employee and/or third party used by Supplier if it can be assumed that the illness or absence will continue for more than ten (10) working days.
7.6 Replacement of personnel and/or third parties shall be entirely for the risk and account of Supplier. Any costs arising from a replacement, such as the costs of recruitment and introduction training shall be for the account of Supplier. Replacements before the end of the Agreement may only take place in consultation with and after approval of Beaphar.
7.7 If Supplier is unable to arrange a replacement within a reasonable period determined by Beaphar, Beaphar will be authorised to terminate the Agreement or part thereof by means of a written notice, without judicial intervention and without being required to pay any compensation. Termination under this article shall not affect the right of Beaphar to compensation.
7.8 If there is immediate dismissal, Supplier shall report this immediately to Beaphar.
7.9 Personnel and/or third parties engaged by Supplier can go on leave of absence only with prior permission of Beaphar. Leave is at the Supplier’s expense.
7.10 The Supplier is not permitted to employ or negotiate about employment with employees of Beaphar during the period of the Agreement and within one (1) year after termination thereof. If Supplier violates this provision, Beaphar will be authorised to terminate the Agreement with immediate effect and Supplier shall reimburse Beaphar for any damage suffered by Beaphar, including damage caused by the (premature) termination of the Agreement.
7.11 Supplier shall always provide and is at all times responsible and liable for the devices, personnel and/or third parties and shall provide for the Materials and safety equipment that are necessary for the performance of the Agreement.
7.12 If the situation arises, Supplier shall, before starting the performance of services and/or works agree with Beaphar which part of the premises and buildings and which utilities of Beaphar may be used for the performance.
7.13 If the services are performed at the office(s) or location(s) of Beaphar or third parties, Supplier, its employees and/or third parties engaged by it shall comply with the applicable internal rules and any statutory safety, health and environmental regulations.
7.14 Supplier shall interrupt the performance of services and/or works if Beaphar deems that its operating conditions so requires.
7.15 Beaphar will measure the Supplier’s performance by a Supplier Performance Evaluation. This is carried out by means of Beaphar’s ERP system.
Article 8 Performance period
8.1 The time at which the Delivery shall be considered to be complete is (are) the day(s) and, if applicable, the time(s) that is (are) stated in the Agreement. The delivery date shall be considered to be the day on which the goods are for the first time offered for delivery to Beaphar by the Supplier at the agreed address and are accepted by Beaphar. If the Agreement does not contain a delivery date, the Delivery shall be considered to be complete within a reasonable term.
8.2 The delivery term stated in the Agreement is binding and shall be regarded as a deadline. If the Supplier expects to exceed the delivery term, he shall notify Beaphar without delay in writing and stating reasons, without prejudice to the provisions of Article 8.3. In this case, the Supplier shall do everything and let no opportunity go by to fulfil his obligations.
8.3 If the time of Delivery as referred to in Article 8.1 is exceeded, the Supplier is considered to be in default by operation of law and Beaphar is entitled, without any notice of default being required, to dissolve the Agreement out of court by sending a letter, return receipt requested.
8.4 If the delivery time is exceeded as a result of circumstances beyond the control of the Supplier or as a result of Beaphar failing to make goods, services, drawings, calculations and other data deemed necessary by the Supplier available to the Supplier in a timely manner, and if Beaphar agrees to exceeding the delivery time in writing, Beaphar will not have the right to cancel the order or dissolve the Agreement, or to refuse goods or the performance of works.
Article 9 Materials
9.1 Unless otherwise specified in the Agreement, the Supplier shall provide the Materials required for the performance of the Agreement at its own expense.
9.2 If, contrary to Article 9.1, the Agreement states Materials shall be provided by Beaphar, Beaphar shall make such Materials available or provide them on loan to the Supplier in such quantities as are reasonable necessary for the performance of the Agreement. These Materials remain the property of Beaphar and the Supplier shall store these Materials separately from its own materials.
9.3 All Materials used by Supplier in connection with the performance of the Agreement must satisfy requirements set by Beaphar. Inspection by or on behalf of Beaphar of Materials does not relieve the Supplier of any responsibility and/or liability arising from the use of those Materials in connection with the performance of the Agreement.
9.4 If the Materials do not satisfy the requirements in Article 9.3, the Supplier must remove, at its own costs, the Materials in question and replace them with Materials that do satisfy those requirements. Any resulting delay in the Delivery of the goods and/or performance of the services shall be for the account of the Supplier.
9.5 Alterations to these Materials as well as the use of these Materials for or in relation to any other purpose than Delivery to Beaphar, is only permitted with Beaphar’s prior written consent. However, this consent does not affect the guarantee obligations of the Supplier.
Article 10 Packaging & Stock Policy
10.1 The Supplier shall package the goods at his own risk and account with due observance of the applicable legal and regulatory requirements regarding packaging and transport.
10.2 Supplier shall provide the goods with a packing list stating Beaphar’s purchase order number, the item numbers, quantities and descriptions.
10.3 Supplier shall immediately take back packaging at the request of Beaphar. Return of (loan) packaging shall take place at the risk and account of Supplier to a destination to be specified by Supplier.
10.4 Beaphar and Supplier may agree on particular Stock-keeping practices without any price or cost consequences for Beaphar, such as:
- maintain Supplier’s stock at Supplier’s premises/warehouse (VENDOR OWNED STOCK)
- maintain Supplier’s stock at Beaphar premises/warehouse (CONSIGNMENT STOCK).
All stocks either in consignment at the Beaphar’s premises or stocks agreed to be kept at the Supplier’s warehouse are the property of Supplier.
Article 11 The environment and harmful materials
11.1 The Supplier declares that it will try to limit as much as possible the negative effects on the environment, for example, using fewer environmentally unfriendly materials, products and production methods.
11.2 Before the Agreement is concluded, the Supplier shall notify Beaphar if the goods offered and to be delivered contain environmentally hazardous substances, which may be released either during normal use or in the case of the breakdown, repair, maintenance, opening, a calamity, removal storage, dumping, moving, disposal, destruction or any other kind of use of the goods concerned.
11.3 If the situation arises, the Supplier shall ensure the delivery is accompanied by clear written instructions regarding measures for preventing the release of the hazardous substances. Furthermore the Supplier shall state in writing which measures must be taken to protect Beaphar staff in the event of the release of these substances.
Article 12 Governance, socially responsible business practices
12.1 The Supplier is aware that Beaphar considers corporate social responsibility to be of paramount important. In its business operations in general and in the performance of Agreements with Beaphar in particular, the Supplier (including all staff and agents engaged by it) shall abide by all applicable legislation and regulations, expressly including, though not limited to, stipulations concerning competition, corruption, bribery, the environment, the protection of personal data, computer crime and working conditions.
12.2 Beaphar has drafted the Beaphar Supplier Code of Conduct. When performing the Agreement, the Supplier shall observe the provisions of that document. If and to the extent that the Supplier makes use of Associated Persons, the supplier guarantees that his Associated Persons shall observe the provisions of the Beaphar Supplier Code of Conduct.
12.3 In case of any discrepancies between the Beaphar Supplier Code of Conduct and the text of these Purchase Terms and Conditions, the latter shall prevail.
12.4 In the event of non-fulfilment of the provisions of this Article, without prejudice to its other rights under the Agreement, Beaphar shall be entitled to dissolve the Agreement with immediate effect, without notice of default and without recourse to a court of law.
Article 13 – Prices
13.1 Unless explicitly agreed otherwise in writing, the agreed prices include:
a. all costs, such as packaging, transport, insurance, travel and accommodation costs that are directly and/or indirectly related to the Delivery;
b. all taxes and levies, for instance import and export duties.
13.2 Prices are exclusive of VAT and will be stated in Euro’s and are fixed during the term of the Agreement, unless explicitly agreed otherwise in writing. The Prices are therefore not subject to rate increases, indexations, or other factors that increase the cost price.
13.3 Price changes agreed by the parties come into effect thirty (30) days after written acceptance by Beaphar.
13.4 On-call Deliveries shall not be performed at a higher price than the most recently agreed price between the parties, unless Beaphar has approved such a price increase in advance and in writing.
13.5 The agreed price is based upon delivery in accordance with Incoterm Delivery Duty Paid (DDP) at the delivery address stated by Beaphar.
Article 14 - Invoicing and payment
14.1 The amounts to be paid by Beaphar for the Deliveries that have taken place shall be invoiced by the Supplier.
14.2 Invoicing by the Supplier shall take place after the Deliveries have taken place, unless the parties have agreed otherwise in the Agreement. Invoices shall be sent to the invoicing address as stated in the Agreement in the language in which the Agreement is drawn up to Furthermore with regard to the invoicing, the Supplier shall act upon Beaphar’s instructions.
14.3 The invoices shall contain at least the following data:
Invoice date;
Creditor number;
Purchase order number and/or contract number;
Description of the delivered goods, Beaphar item code and/or services and quantities;
Separate indication of the VAT amount;
Separate taxes and charges, levied by third parties.
14.4 Beaphar will pay invoices within sixty (60) days of receipt of a correctly formulated invoice, or within any other payment term agreed in writing, unless the situation as described in Article 14.6 or 14.7 occurs.
14.5 If Beaphar owes interest for failing to comply with its obligation by due date, Beaphar shall owe the Supplier interest of 3 % instead of the statutory interest.
14.6 If Beaphar establishes a non-conformity concerning the delivered Product (for instance with respect to the time of delivery, the quantity, the sound condition and/or fitness of the delivered goods, services and/or works), Beaphar is entitled to refuse payment or to suspend its payment obligations with respect to the Delivery that has (not) taken place and with respect to which the complaints have been expressed.
14.7 If Beaphar disputes an invoice or any item on an invoice or if the invoice has been drawn up or submitted incorrectly in any way, Beaphar has the right to not pay the disputed amount. Beaphar shall notify the Supplier of its grounds for disputing the invoice as soon as possible and the parties shall resolve any such dispute as swiftly as possible.
14.8 If Beaphar exceeds a payment term and/or refuse to pay on account of non-conformity as referred to in Article 14.6 and/or disputes the correctness of the invoice amount, this does not give the Supplier the right to suspend or to terminate the Agreement.
14.9 Before payment takes place, Beaphar is authorised to require that, in addition to or instead of a transfer of ownership, the Supplier provides an unconditional and irrevocable bank guarantee issued by a bank that is acceptable to Beaphar in order to guarantee the fulfilment of the Supplier’s obligations. The Supplier shall cooperate fully with such a request.
14.10 In the event that amounts are to be paid by Beaphar in advance, Supplier shall, for its own account and at the request of Beaphar, immediately provide an unconditional and irrevocable bank guarantee or any other adequate security, determined at the discretion of Beaphar. If Beaphar has made an advance payment and Supplier fails to full fill an obligation, Beaphar will be authorised to charge statutory interest under Article 6:119a of the Dutch Civil Code on the amount paid in advance during the period Supplier is in default.
14.11 Payment by Beaphar does not in any way constitute a waiver of a right or claim and does not in any way discharge the Supplier from any obligation, guarantee and/or liability.
14.12 Beaphar is authorised at all times to set off amounts payable to the Supplier, however they may arise, against amounts owed by the Supplier. The Supplier can never set off its obligations with respect to Beaphar pursuant to the Agreement against any receivable it might have pursuant to any legal relationship with Beaphar.
15.1 Supplier represents and warrants:
a. that the Products, production, packaging, labelling and delivery of the Products comply with the Product specifications, logistic requirements, quality -, social responsibility - and environmental standards and requirements and all other conditions agreed upon;
b. compliance with all applicable laws and regulations in force at the time the Products are ordered, produced and delivered, both in relation to the Products, production, packaging, labelling and delivery of the Products as well as to the Supplier’s business organisation;
c. that the Products are manufactured free from defects and subject to, at least, the quality customary in the Supplier’s branch and subject to at least the guarantee terms customary in Supplier’s branch of industry;
d. that the Products are fit for the purpose intended by Beaphar.
15.2 In addition to its other representations and warranties given, Supplier will provide to Beaphar the full benefit of all covenants, warranties, representations and indemnities granted to Supplier by third parties in connection with any Products.
15.3 If during the warranty period agreed between the Parties or a longer period if this can reasonably be expected given the nature of the Products, a Product is no longer in conformity with the agreed specifications and such warranties, Supplier will repair or replace the Products free of charge, or make full refund, plus return freight, and in/out handling charges, whichever Beaphar chooses. All costs involved will be for Supplier’s account. In addition, Beaphar has the right to full compensation of damages.
15.4 The warranties as referred to in this Article shall be valid for the term laid down in the Agreement, or in the absence thereof, for the customary warranty term of the line of business, but for at least one year following completion of the Delivery. The warranty term shall be extended for a period equal to the period(s) during which the Products could not or not fully be used due to a fault. New warranty terms equal to those mentioned above in the first sentence shall apply to Products that have been supplied as replacements as well as to replaced or repaired parts of these Products, also including those parts of the Products that may be affected by replaced or repaired parts.
15.5 If necessary for the continuity of Beaphar operations and if the Supplier is not able itself to repair or replace the Products immediately, Beaphar shall be entitled to carry out (or arrange) temporary repairs or perform (or arrange) replacement services at the expense of the Supplier.
Article 16 – Inspections and checks
16.1 At all times Beaphar has the right to (before the Delivery) inspect or have inspected and/or to check or have checked the Deliveries at the place of manufacture or at the agreed place of Delivery, to determine if the part/result of the Delivery complies with what has been agreed. Beaphar shall notify the Supplier as soon as possible if Beaphar wishes to use this right. On first demand, the Supplier shall render full assistance free of charge and shall grant Beaphar or a person designated by Beaphar access to the place where the goods are manufactured or stored. The Supplier will be notified of the results of the check in writing.
16.2 If, on the basis of the (interim) check and/or inspection, Beaphar finds that the Delivery (or part thereof) that was the subject of the (interim) check and/or inspection does not comply with what has been agreed, Beaphar – in addition to any right arising from the warranty obligations of the Supplier or under general law – has the authority, at its discretion:
a. to reject the Products concerned and to return them at te expense of the Supplier, in which case Beaphar is entitled to replacement or redelivery without further costs and within a delivery term to be fixed. If the goods have been replaced or redelivered, a repeated (interim) check and/or inspection may take place;
b. to keep and to use the rejected Products at a fair reduction of the purchase price, to which the Supplier is obliged to agree;
c. in case of an urgent matter, to repair or have the rejected Products repaired by Beaphar or by a third party or to purchase the Products from a third party at the expense of the Supplier, if possible after having submitted an indicative estimate to the Supplier.
16.3 Article 16.2 does not apply to Deliveries with respect to which Beaphar has indicated, or with respect to which Supplier knew or ought to have known, that the originally agreed time of completion of the Delivery was of the utmost importance to Beaphar, and that a repeated (interim) check and/or inspection could not be carried out before that time.
16.4 If the results of a repeated (interim) check and/or inspection as referred to in Article 16.2 under (a) show that the replacement or redelivered Product again does not comply with what has been agreed, Beaphar is not obliged to accept (the result of) the Delivery and Beaphar is entitled to dissolve the Agreement without notice of default or court intervention, or to use any of its other rights, without the Supplier being entitled to any compensation. In this case, Beaphar has the right to repair or replace or have the Products repaired or replaced by a third party at the expense of Supplier.
16.5 The costs incurred by the (interim) check and/or inspection will be borne by Beaphar. If a check and/or inspection as referred to in this Article cannot take place at the intended time due to actions of the Supplier or if an (interim) check and/or inspection must be repeated due to actions of the Supplier, any costs arising therefrom will be borne by the Supplier.
16.6 The Supplier is not entitled to invoke the results of (interim) checks and/or inspections carried out previously.
Nor does approval or acceptance of the Delivery or part thereof release the Supplier from any warranty or liability arising under these Purchase Terms and Conditions, the Agreement, his own warranties and/or legislation.
Article 17 Liability
17.1 Any failure to fulfil any obligations under the Agreement by Supplier shall oblige Supplier to remedy the failure and/or the consequences thereof partly or in whole for the risk and account of Supplier and to pay compensation for any damage, including at least consequential damage and the actual costs of legal assistance which Beaphar suffers or will suffer.
17.2 The Supplier is liable for all damage incurred by Beaphar and/or third parties that arise for or are connected with Supplier not fulfilling his obligations from this Agreement or not doing so on time or not properly or from violations of any other contractual or non-contractual obligations and/or as a consequence of acts or omissions of Supplier and/or of the manpower, materials, data, specifications, calculations and so forth that it has given Beaphar.
17.3 Supplier shall indemnify Beaphar against any and all claims of third parties in connection with the Agreement. The indemnification includes any costs and damage Beaphar may suffer or incur in that regard.
17.4 If at any time during or in connection with the placement, assembly, installation, or making operational of the Delivery and the like, property of Beaphar sustains damage of any kind or Beaphar personnel or personnel of third parties incur damages or personal injury or other goods or persons incur damages of any kind, Supplier is liable for said damages or personal
injury and any consequences thereof. Supplier indemnifies Beaphar against claims in this regard.
17.5 Beaphar is not liable to Supplier for any damage from any cause whatsoever, suffered on the part of Supplier, its employees and/or third parties engaged by Supplier, unless the damage results from wilful misconduct or gross negligence on the part of Beaphar. Under no circumstances shall Beaphar be liable for any loss of profits or consequential loss or auxiliary persons.
17.6 Insofar as Supplier wishes to invoke force majeure, reference is made to Article 18 (Force Majeure).
17.7 When concluding the Agreement with Beaphar, Supplier is obliged to sufficiently insure and to keep insured its liability to Beaphar on the ground of the law and/or Agreement and also to insure and to keep insured all risks in its operations that can be insured under normal conditions.
17.8 At Beaphar’s request, Supplier will immediately provide (a certified copy of) policies and proofs of premiums paid. Without the prior written permission from Beaphar, Supplier will not terminate the insurance contract(s) or change or lower the conditions under which this/these has/have been concluded or the insured sum(s) to the disadvantage of Beaphar.
17.9 The Supplier hereby assigns now for then all claims with respect to payment(s) of insurance proceeds arising from the insurances as referred to in Article 17.7 for damage caused to Beaphar by the Supplier or damage for which the Supplier may be held liable under the law or these Purchase Terms and Conditions, which assignment is hereby accepted by Beaphar now for then. Insurance proceeds paid directly to Beaphar by insurance companies shall be deducted from the damages to be paid to Beaphar by the Supplier with respect to the insured incident. Article 18 Force Majeure
18.1 A failure cannot be attributed to a party if the failure is not its fault and not for its account pursuant to the law, a legal act or generally accepted standards.
18.2 In the event of force majeure, performance of the Agreement will be suspended in part or in full for the duration of such period of force majeure, without either party being required to pay any compensation to the other party.
If either party is permanently unable to fulfil its obligations due to force majeure or the situation of force majeure lasts longer than thirty (30) days, or if it is reasonably expected that the situation of force majeure will last longer than thirty (30) days, the other party will be authorised to terminate the Agreement or part thereof with immediate effect and without judicial intervention, without being required to pay compensation to the party affected by the force majeure. Any advance payments made shall be refunded within thirty (30) days after the termination by the party affected by force majeure. In the event of force majeure, Beaphar shall, immediately after force majeure has been established, be completely free and authorised to engage a third party without being required to pay compensation to the party affected by force majeure.
18.3 The term force majeure has the meaning as described in Article 6:75 of the Dutch Civil Code (“Burgerlijk Wetboek”). The term force majeure on the part of Supplier shall at any rate not be taken to mean the illness, lack of personnel, strikes, failure in fulfilling obligations and unlawful acts by Supplier and/or by third parties engaged by Supplier, late delivery and/or unfitness of materials, raw materials or semi-finished products or services, failure of auxiliary devices, or liquidity or solvency problems of Supplier.
Article 19 – Confidentiality
19.1 The Supplier shall at no point provide any information to third parties concerning the Agreement, without the prior written consent of Beaphar.
19.2 The Supplier, its staff and/or third parties engaged by it are obliged to treat all information concerning Beaphar that they receive in connection with the Agreement or its execution, as strictly confidential. This confidentiality obligation also extends to any details of clients and/or other parties with whom Beaphar has a business relationship that come to the Supplier’s attention by reason of its function.
19.3 The Supplier shall impose the same confidentiality in writing on the employees and/or third parties involved in the execution of the Agreement.
19.4 Except with Beaphar’s prior written consent, the Supplier shall only disclose information that is available to him to his employees insofar as necessary for the performance of the Agreement. Beaphar may attach conditions to its consent as well as claim compensation for its consent.
19.5 If the Supplier acts contrary to this provision, he shall, without any warning or notice of default being required, in each of these cases forfeit to Beaphar an immediately payable penalty that is not eligible for set-off amounting to € 25,000 (twenty-five thousand euros) for each and every occurrence. This penalty does not prejudice Beaphar’s other rights, including the right to damages. This penalty is not eligible for mitigation.
Article 20 – Intellectual (property) rights
20.1 Supplier warrants that the use (including the resale) of the Products supplied by it does not infringe its intellectual property rights or those of third parties.
20.2 Supplier indemnifies Beaphar against all claims arising from an infringement of intellectual property rights of third parties and shall reimburse Beaphar for any damage resulting therefrom.
20.3 Insofar as not agreed otherwise explicitly and in writing, Supplier shall only use the information or goods provided by Beaphar in connection with and for the benefit of the Agreement with Beaphar. The information and/or goods made available, or part thereof, may not, without prior written permission of Beaphar, be made available to third parties and/or used for purposes other than for which Beaphar has provided this information and goods to Supplier.
20.4 All intellectual property rights and similar rights that arise or result from the performance of the Agreement by Supplier, his personnel or third parties engaged by Supplier, shall belong to Beaphar.
If this situation arises, Supplier states it will transfer all those property rights to Beaphar, which transfer will be accepted by Beaphar now for then immediately after these rights have arisen. If a deed or other formal act is required for the transfer of these rights, Beaphar states that it will unconditionally cooperate therewith, or hereby gives Beaphar the irrevocable authority to effect such transfer and to sign it or have it signed on behalf of Supplier. Supplier irrevocably and unconditionally authorises Beaphar to register the transfer of the (intellectual) property and similar rights in the relevant registers.
20.5 In the event that Supplier makes available documents, software, etc. for the Products the intellectual property rights of which are owned by Supplier or a third party, and Beaphar and Supplier agree in writing that the transfer of the intellectual (property) rights is impossible or undesirable, Supplier hereby grants Beaphar, the irrevocable right to use and maintain or have maintained, to preserve and/or renew the delivered Products free of rights.
20.6 Without prejudice to the provisions of the Purchase Terms and Conditions, Beaphar is entitled to dissolve the Agreement or part thereof in writing, both judicially and extra judicially, if third parties hold Beaphar liable for infringements of intellectual (property) rights or similar rights.
Article 21 – Termination of the Agreement
21.1 In addition to any statutory or other rights under the governing law to terminate or dissolve the Agreement and in addition to the other grounds for dissolution of the Agreement mentioned in these Purchase Terms and Conditions, Beaphar may terminate the Agreement with immediate effect, without a notice of default by means of a normal or registered letter in the event of:
failure of Supplier in the fulfilment of any obligation under the Agreement;
the (impending) transfer of the shares in or the assets of the company of Supplier to a third party or termination of the business operations or commercial activities of Supplier;
a(n) (impending) moratorium, bankruptcy or a similar situation of Supplier or a petition to that effect;
a(n) (impending) placement under guardianship or receivership of Supplier;
attachment of an important part of the assets of Supplier or of goods intended for the performance of the Agreement, or
the Supplier changes its legal identity or the actual authority;
the Supplier is a natural person and dies;
the (impending) revocation of licenses of Supplier, required for the performance of the Agreement;
an infringement of the provisions of Article 15 (Warranty) has taken place.
21.2 Beaphar may terminate any Agreement without cause at any time by giving thirty (30) days notice to Supplier.
21.3 Without prejudice to its other rights, Beaphar shall be entitled in the situations referred to it in Article 21.1 to suspend all its obligations under any Agreement(s) with the Supplier.
21.4 Termination of the Agreement by cancellation or dissolution as referred to in this Article shall not mean that the rights and obligations of the parties on the grounds of the Articles that by their nature are intended to continue (including at any rate the articles 17 (the assignment of insurance proceeds), 19 (Confidentiality), 20 (intellectual (property) rights) and 26 (Applicable law and disputes)) shall cease.
21.5 All permissible lawful extrajudicial costs, explicitly including the costs of sending payment demands, making proposals (for out-of-court settlements) and other extrajudicial actions, and the legal costs incurred by Beaphar in enforcing its rights against the Supplier, shall be borne by the Supplier.
21.6 If the Agreement is dissolved by Beaphar on the grounds of Article 21.1, the Supplier shall return any payments made with respect to undelivered Goods, un-rendered Services and unperformed Works.
Except in the event of Force Majeure, Supplier shall also compensate any damage suffered by Beaphar. In this case Beaphar is not obliged to pay any compensation, on whatever grounds, to the Supplier. All claims that Beaphar has or will have in these cases against the Supplier will be payable immediately and in full.
Article 22 – Transfer of rights and obligations
22.1 No rights and obligations under the Agreement or order may be assigned, pledged or transferred by Supplier without Beaphar’s prior written approval. Without prejudice to this
consent, the Supplier is not released from his obligations under the Agreement and the Supplier will at all times remain responsible and liable to Beaphar for the faultless performance of the Agreement by a third party/subcontractor.
22.2 Beaphar shall at all times be authorised to transfer the rights and obligations arising from an Agreement to its affiliates.
Article 23 – Taxes and social security costs
23.1 The provisions of this article apply only if Supplier has engaged or wishes to engage third parties to perform obligations under the Agreement.
23.2 Supplier is responsible for the fulfilment of the obligations imposed on it under the applicable wage and tax laws and social security legislation with respect to the employees who are set to work or will be set to work by Supplier or by a third party engaged by Supplier. Supplier shall immediately give Beaphar access to its books and records to prove that it has fulfilled all its obligations referred to above.
23.3 Supplier indemnifies Beaphar against all claims in respect of wage and turnover tax and social security related to the Agreement. This obligation shall survive the termination of this Agreement.
23.4 If payment is claimed from Beaphar for social security contributions to be paid or wage tax to be withheld or turnover tax to be paid by third parties engaged by Supplier, Supplier shall provide Beaphar with all the information required to enable Beaphar to prove that the nonpayment is not attributable to Beaphar. Beaphar may recover these amounts from Supplier without prejudice to its rights regarding third parties in that respect. The amount referred to above shall be payable immediately and without judicial intervention. Supplier shall pay statutory interest under Article 6:119a of the Dutch Civil Code on the amount from the date on which Beaphar is held liable until the date of full payment. Beaphar is authorised to suspend the performance of every obligation to Supplier, however arising, if Beaphar has good reasons for assuming that Supplier is not fulfilling or has not fulfilled his obligations as referred to in this Article.
23.5 With respect to Agreements in relation to which Beaphar is jointly and severally liable for the payment of employee and national insurance premiums and wage tax, Beaphar is entitled to deduct the relevant amounts from the agreed price and to pay these amounts directly to the employed persons’ insurance administration organisation and the tax authorities.
23.6 Beaphar is authorised to terminate the Agreement with immediate effect and without judicial intervention, without being required to pay any compensation to Supplier if Supplier and/or third parties engaged by it fail to fulfil the obligations arising from tax and social security legislation and regulations.
Article 24 – Processing of personal data
24.1 The terms of this Article are applicable where the Services to be provided by Supplier (partly) involve the processing of personal data on behalf of Beaphar.
24.2 Supplier shall always process personal data in accordance with the provisions of the General Data Protection Regulation (GDPR) and any other applicable regulations, conditions and provisions. If requested, Supplier shall provide Beaphar without delay with written information detailing how it has put into effect its obligations pursuant to legislation in the field of the protection of personal data and the associated legislation and regulations.
24.3 Supplier shall not outsource its obligations under this Article to third parties unless it has received prior written permission to do so from Beaphar and Supplier has entered into a written agreement with the third party concerned containing levels of protection with regard
to the personal data that are equal or greater to the levels of protection applicable in the relationship between Supplier and Beaphar.
Article 25 – Penalty and costs
25.1 Without prejudice to the provisions of articles 18 and 21, Supplier shall owe an immediately payable penalty amounting to 10% of the contract value of the Agreement in the event of breach of contract and/or, in the event of late performance, 0.5% of the contract value of the Agreement per day of such delay. Payment of the penalty shall not affect any other rights of Beaphar, including the right to demand performance and the right to compensation. The penalty may not be deducted from such compensation.
25.2 Any and all (extra) judicial costs, including but not limited to the costs of legal assistance incurred by Beaphar to enforce its rights in regard to Supplier shall be for the account of Supplier.
Article 26 – Applicable law and disputes
26.1 The Agreement is exclusively governed by Dutch law.
26.2 Applicability of the United Nation Convention on Contracts for the International Sale of Goods, Vienna 11 April 1980 (CISG) is expressly excluded.
26.3 All disputes between the parties in relation to the Agreement or these Purchase Terms and Conditions will in the first instance be settled exclusively by the competent court of Over Ijssel.