GENERAL TERMS & CONDITIONS OF SALE THALES CRYOGENICS B.V.
Article 1 General
1.1 These General Terms and Conditions of Sale form part of all offers for and agreements to supply Products and/or Services by Thales Cryogenics B.V., hereinafter referred to as the “Contractor”, to the Customer. The Contractor does not accept the general terms and conditions of the Customer, or any other general terms and conditions.
1.2 In these General Terms and Conditions of Sale the following terms are defined as:
Customer: the party to whom the Contractor addresses its offer and/or concludes an agreement with.
Incoterms: The International Commercial Terms for the use of domestic and international trade terms, published by the International Chamber of Commerce at the date of creation of the agreement.
Product(s): goods delivered to the Customer by the Contractor.
Service(s): activities performed by the Contractor.
Article 2 Offer validity
Offers shall be valid for thirty (30) calendar days following the date of the offer.
Article 3 Creation of the agreement
3.1 Agreements are entered into in writing and are concluded on the day of dispatch of the written order confirmation by the Contractor, or in the absence of a written order confirmation, when delivery of the Product(s) and/or performance of the Service(s) commences, or if a separate agreement is concluded.
3.2 Oral promises and representations made by employees of the Contractor shall not bind the Contractor, unless confirmed in writing by the Contractor.
Article 4 Price, Incoterms and Taxes
4.1 All prices are in Euro.
4.2 The prices of Products and/or Services are based on delivery Free Carrier (FCA) Eindhoven, The Netherlands, in conformity with the Incoterms and inclusive of Contractor’s standard packaging and marking for Products.
4.3 The price excludes and the Customer is solely responsible for, any and all present or future taxes, duties, levies, imposts, withholdings, fees or other similar charges, including related administrative costs, howsoever arising and of any nature, charged by and/or payable to any governmental, fiscal, customs or other authority outside The Netherlands in respect of, or in any way related to, the execution, registration, delivery, ownership and/or the performance of the subject of the offer and/or agreement
4.4 Except as required by law, the Customer shall make all payments of the prices net of any and all Taxes. If the Contractor is legally required to pay any of the Taxes that are not included in the prices or if Customer is legally required to deduct any of the Taxes from any sum payable to Contractor, then the prices payable by Customer to Contractor will be increased as may be necessary so that the net amounts received by the Contractor after all required deductions (including deductions applicable to additional sums payable) will equal the amount that the Contractor would have been entitled to receive if no such deductions were made.
Article 5 Delivery periods
5.1 An agreed delivery period shall not be a deadline as per article 6:83a of the Dutch Civil Code.
5.2 The delivery period shall start on the last of the following days:
a. the day of the creation of the agreement pursuant to article 3.1;
b. the day of receipt by the Contractor of all documents, data, materials, permits, licenses etc. required for the performance of the agreement;
c. the day of receipt by the Contractor of the advance payment to be made by the Customer according to the agreement.
5.3 If a delivery date or week has been agreed, the delivery period shall comprise the period between the date of the conclusion of the agreement and the delivery date or week.
5.4 A Service shall be deemed to have been performed when the agreed activities have been executed.
5.5 If the Customer fails to collect the Product from the Contractor’s site within two (2) weeks after the Contractor has notified the Customer that the Products are ready for delivery, the Product shall be stored by the Contractor for the account and risk of the Customer.
Article 6 Export licenses
6.1 If the Product or Service or any part thereof or any information relating thereto is subject to any import or export license(s) by the Government of the Netherlands or any other Government, the Customer shall strictly comply with such license and shall not resell, divert, transfer, transship on a non-continuous voyage or otherwise dispose of the Product or Service or any information relating thereto in any other country than the country for which the license is granted, either in its original form or after being incorporated through an intermediate process into other end-items, without the prior written approval of the relevant competent authorities obtained via the Contractor.
6.2 The Customer shall timely provide all documents and information necessary for the Contractor to apply for any import or export license(s).
Article 7 Acceptance
7.1 The Customer shall inspect the Product and/or Service within twenty-one (21) calendar days after the delivery and/or performance pursuant to article 5. If this term has expired without the Customer notifying the Contractor of a specified complaint in writing – which is judged to be well-founded by the Contractor – the Product and Service shall be deemed accepted by the Customer.
7.2 Any return of Product to the Contractor may only take place after the Contractor’s prior written permission and such return shall be for the Customer’s account and risk.
7.3 In the case of minor shortcomings, such to be decided by the Contractor, particularly those which have no or hardly any impact on the Contractor’s anticipated utility of the Product or Service, the Product or Service shall be deemed to have been accepted irrespective of such shortcomings. The Contractor shall then remedy such shortcomings as soon as reasonably possible in accordance with the Contractor’s warranty obligations in article 12.
7.4 Without prejudice to the Contractor’s obligation to perform its warranty obligations, acceptance according to article 7.1 and 7.3 shall exclude any claim of the Customer with respect to any failure in the performance of the Contractor.
7.5 The Contractor reserves the right to make any alterations or modifications to the Product or Service to be supplied that will not have any material impact to Contractor’s anticipated utility of the Product or Service.
Article 8 Transfer of risk and title
8.1 As soon as the Product has been delivered within the meaning of article 4.2, the Customer shall bear the risk for any damage to or loss of the Product or Service, or damage or loss caused by the Product or Service, other than insofar as such damage or loss is due to gross negligence or willful intent on the part of the Contractor.
8.2 Title to the Product shall transfer upon delivery in accordance with the agreed Incoterm.
Article 9 Intellectual property rights and user rights
9.1 The intellectual property rights to all Products and Services including reports, drawings, technical documents, computer software, descriptions, (user) interfaces, designs, models and the like which the Contractor has delivered or supplied to the Customer under any title, howsoever called, shall reside and continue to reside with the Contractor and/or its supplier(s) as the case may be.
9.2 Non-exclusive and non-transferable user rights shall be granted as required for receiving, inspection, approval and operation of the Product(s) and/or Service(s) including software or any information relating thereto supplied.
9.3 The Customer agrees not to:
a. modify, adapt, alter, translate, or create derivative works from the software included in the Product(s) and/or Service(s);
b. distribute, sublicense, lease, sell, commercialize, rent, loan, or otherwise transfer the software to any third party; or
c. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from the software.
9.4 All rights in intellectual property created by the Contractor in performance of its obligations under the agreement shall vest exclusively in the Contractor.
9.5 ‘Open source software’ and ‘commercial off the shelf software’ that is included in the Product(s) and/or Service(s) shall be subject to the license conditions of the third parties providing such open source or commercial of the shelf software. In case of any discrepancy between the third party license conditions and the agreement between the Contractor and the Customer, the third party license conditions shall prevail.
Article 10 Confidentiality
The Customer shall keep confidential and not use any information received from the Contractor without the prior written consent of the Contractor.
Article 11 Payment
11.1 The payment of the agreed price shall be effected in two (2) installments:
– 30% of the price no later than thirty (30) calendar days after the conclusion of the agreement pursuant to article 3.1;
– 70% of the price no later than thirty (30) calendar days after
delivery of the Product and/or Service pursuant to article 5.
11.2 All payments to the Contractor must be effected without any deduction or set-off.
11.3 If the Customer fails to pay within the period of article11.1, the Customer is in default and the Contractor shall be entitled to interest from the due date. The interest shall be four (4) percent per annum above the statutory interest rate for commercial transactions published by the Netherlands Central Bank (De Nederlandsche Bank. All judicial and extrajudicial costs connected to the collection of the payment shall be for the account of the Customer.
11.4 The Contractor reserves the right to suspend any further deliveries and activities to the Customer until any delayed payment is made in full.
11.5 The Contractor further reserves the right to transfer to third parties the Contractor’s rights and title to receive payment under an invoice including the right to any interest and/or other financial charges.
Article 12 Warranty
12.1 The Contractor warrants that the Products and Services shall be free from defects in design and workmanship for a period of twelve (12) months after delivery pursuant to article 4.2. After this period has elapsed, any claim against the Contractor with respect to these defects shall be null and void.
12.2 At the option of the Contractor the warranty is limited to the rectification of the defects by making repairs of the defective Product, either on the premises of the Customer or elsewhere, or by sending a replacement Product or part thereof. In the case of defective Services, the Contractor’s obligation is limited to re-performing the Services. All costs exceeding the obligation as described in this article, including, transport costs, travelling and accommodation costs, as well as assembly and disassembly costs, shall be for the account of the Customer.
12.3 If the Contractor, in order to fulfill its warranty obligation, replaces a Product or parts thereof, the replaced Product or parts thereof shall become the property of the Contractor.
12.4 The warranty excludes any defects which arise partly or wholly from:
a. failure to observe the operating, storage and maintenance instructions;
b. any use other than the Contractor’s intended or anticipated use;
c. normal wear and tear, and corrosion or exposure to the elements;
d. repairs, alterations or replacements of the Product or parts thereof or services performed by others without the written approval of the Contractor; or
e. working methods and constructions insofar as applied at the express request of the Customer, as well as goods or material or information delivered by or on behalf of the Customer.
12.5 For any Product, part or Service obtained by the Contractor from a third party, the warranty period and the terms of the warranty of such third party shall apply.
12.6 The Contractor’s liability for defective Products or Services shall be limited to performance of the warranty obligations described in this article 12.
Article 13 Liability
13.1 The Contractor’s aggregate liability howsoever arising from or in connection with its performance under the agreement is limited to an amount of 10% of the price of the agreement effectively paid.
13.2 Subject to article 14, the Customer shall hold harmless and indemnify the Contractor against any and all claims from third parties arising from or in connection with the agreement or its performance or the use of the Product or Service or any information relating thereto.
13.3 Article 13 does not apply to the extent it conflicts with mandatory law, or where the damage or loss is the result of willful intent or gross negligence by the Contractor.
13.4 In no event the Contractor shall be liable for any, special, consequential and/or punitive damages or other indirect damages (including without limitation loss of profit or loss of business).
Article 14 Patents
14.1 The Contractor indemnifies the Customer against any valid claim regarding patent infringement in The Netherlands concerning Products or Services.
14.2 The indemnification referred to in article 14.1 shall only apply if the Customer promptly notifies the Contractor in writing about such claim to enable the Contractor to take over the defense of any proceedings and settlements in their entirety from the Customer. The Customer shall at the request of the Contractor assist and make all information available to the Contractor for this purpose.
14.3 The above indemnification shall not apply if the Product or
Service is used in a manner for which it has not been developed or produced; or if the Customer has made alterations to the Product or Service.
Article 15 Force majeure
15.1 Force majeure means any circumstance beyond the control of the Contractor or its suppliers which temporarily or permanently renders the Contractor’s performance under the agreement impossible, and includes but is not limited to, war, threat of war, riots, import or export restrictions imposed by any Government, strikes, workers’ lockout, transport difficulties, terrorist acts, pandemics, fire and Acts of God.
15.2 In the event the Contractor is prevented from performing the agreement because of force majeure, the Contractor is entitled to suspend performance of the agreement without judicial intervention for the period of the force majeure event plus the period required to overcome the consequences of the force majeure event, if any, and to start up activities. The Contractor shall not incur any liability towards the Customer as a result of or in relation to force majeure.
Article 16 Termination
16.1 Agreements to which these General Terms and Conditions of Sale apply may be terminated prematurely in whole or in part:
1. by the Customer or Contractor in the event:
a. the other party has been granted suspension of payments or has been declared bankrupt or insolvent;
b. the Contractor is unable to perform the agreement as a result of force majeure as described in article 15 for a period longer than six (6) months.
2. by the Contractor in the event:
the Customer fails to perform its payment obligations pursuant to article 11 or any other obligation under the agreement.
16.2 The party seeking to wholly or partly terminate the agreement to which these General Terms and Conditions of Sale apply shall notify the other party thereof by registered letter.
16.3 In case of termination under article 16.1, the Contractor shall be reimbursed by the Customer for all costs associated with the performance or partial performance of obligations and for those obligations already entered into under the agreement, including surcharges applied by the Contractor for general costs and profits.
Article 17 Applicable law and dispute resolution
17.1 The agreement and these General Terms and Conditions of Sale are governed and construed in accordance with the laws of The Netherlands. The application of the “United Nations Convention on contracts for the International Sale of Goods” (the “Vienna Convention on the Sale of Goods”) is excluded.
17.2 All disputes in connection with the agreement, related agreements and the General Terms and Conditions of Sale shall be settled by the competent court in The Netherlands. The foregoing shall leave intact the right of the Parties to conclude a submission agreement referring a dispute to arbitration.
Article 18 Severability
Should any provision of these General Terms and Conditions of Sale be void or voidable by virtue of applicable law, the remainder of the General Terms and Conditions of Sale shall survive and not be affected. The Contractor and the Customer shall agree on an alternative enforceable provision which will approximate the intention of the original provision(s).