GENERAL DELIVERY CONDITIONS, SERVICES
These General Terms and Conditions are an integral part of any and all TMG’s Proposals and Contract/agreements for Services supplied by TMG. TMG explicitly rejects the applicability of other general or specific terms and conditions or stipulations, which are not stated in express terms in the Proposal or the Contract/agreement.
a. TMG means Total Maintenance Group International B.V. a limited liability company after Dutch law with registered offices at Haarlemmerstraat 4, 2042 NC Zandvoort, The Netherlands, including its legally appointed representatives, successors and permitted assigns.
b. Annex means any and all annexes or exhibits attached to the Proposal or the Contract/agreement. The Annexes form integral part of the Proposal, respectively the Contract/agreement.
c. Buyer means the body corporate, association or person(s), including its legally appointed representatives, successors and permitted assigns, having (i) requested TMG to submit a Proposal, or (ii) awarded the Contract/agreement to TMG.
d. Contract means the written agreement between Buyer and TMG concerning the performance of the Services, including these GTC and any further Annexes, all as amended from time to time.
e. Contract Price The total amount to be paid by Buyer in consideration of the performance of the Services supplied by TMG for this contract/agreement.
f. Documentation means any and all drawings, technical information and other documents, whether in tangible or electronic form, to be supplied by TMG under the Contract/agreement.
g. GTC means the General Terms and Conditions for Services.
h. Party(ies) A “Party” shall mean TMG or Buyer and the “Parties” shall mean TMG and Buyer jointly.
i. Proposal TMG’s offer to negotiate a Contract/agreement for the Services envisaged by Buyer based on the terms set out in the Proposal.
j. Services The services to be supplied by TMG under the Contract/agreement, including Documentation.
k. Site The location where the Services are to be performed.
l. Works Buyer’s works or installations or, as the case may be, the works or installations of Buyer’s client for which the Services are to be supplied.
a. All information submitted by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether verbally, in reports, specifications, drawings, written documentation or in any other form or manner (hereafter “Information”) is submitted solely for the use by the Receiving Party for the purpose envisaged by the Proposal, and upon conclusion of the Contract/agreement, for the performance of the Contract/agreement and shall not be used for any other purpose nor be disclosed to any other party without prior written consent of the Disclosing Party and then only subject to a confidentiality restriction. The Information shall not be disclosed to any person other than the Receiving Party’s employees and/or representatives, who need to know (part of) such Information in connection with the evaluation of the Proposal or the performance of the Contract/agreement. The Receiving Party shall instruct its employees and/or representatives to comply with the confidentiality obligations hereof.
b. The Receiving Party shall not modify, copy, reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any Information.
c. The provisions of this paragraph shall survive the termination or expiration of the Proposal, and upon conclusion of Contract/agreement, the termination of the Contract/agreement with a period of five years.
d. In case aDisclosing Party requires at its discretion more stringent provisions about confidentiality and non-use, the Receiving Party shall sign a separate agreement or statement providing the protection reasonably required by the Disclosing Party.
e. In case Buyer decides not to award a contract/agreement for the Services to TMG it shall forthwith return or destroy the Proposal and all related documents including copies thereof, whether paper or in an electronic format.
4. EXCHANGE OF INFORMATION
a. All information and data contained in general product documentation, price lists or otherwise, whether in electronic or any other form, are binding only to the extent that they are expressly included by reference in the Proposal or the Contract/agreement.
The following shall apply to TMG’s Proposal:
a. Prices are valid for the period indicated in the Proposal.
b. Prices are based on acceptance of the entire scope of supply as described in the Proposal and do not allow for individual acceptance of priced sections or items.
c. Prices are based on acceptance of all terms and conditions specified in the Proposal.
d. Prices are based on TMG’s free choice of suppliers.
e. To the extent prices relate to supplies in other currencies than the currency offered in the Proposal, TMG shall be entitled to adjust such prices to the exchange rates of such currencies applicable at the date of the Contract/agreement.
f. All drawings, technical information and other documents relating to the Services or a Party’s business, submitted by one Party to the other prior to the formal execution of the Contract/agreement, shall remain the property of the submitting Party.
6. SCOPE OF SERVICES
a. Subject to the terms and provisions of the Contract/agreement TMG shall supply the Services as specified in the Contract/agreement. The services exclude any documentation, equipment and services not expressly referred to in the Contract/agreement.
a. Documentation, if any, shall be supplied to Buyer in accordance with the applicable time schedule or, failing such schedule for any Documentation, in a timely manner.
b. The Documentation shall be supplied in the number of copies agreed upon or at least one hard copy of each.
c. If any Documentation requires before its (further) use the prior approval of Buyer, such approval or rejection shall be given in writing within 10 business days after receipt of such Documentation, failing such timely reaction the Documentation shall be deemed approved.
The Services will be provided TMG’s skilled and experienced staff on a best efforts basis within the agreed time schedule. TMG will within its reasonable possibilities send additional staff or replace staff to comply with the
requirements of Buyer. Unless agreed upon otherwise in writing the delivery date is an estimated date. TMG cannot be claimed for non compliance of the agreed delivery date caused by Buyer or third parties.
9. BUYER’S OBLIGATIONS
Not with standing anything else contained in the Contract/agreement Buyer shall:
a. Pay the Contract/agreement Price in the installments specified in the Contract/agreement according to the terms of payment thereof.
b. Support amendments of the Contract/agreement related to such changes in the scope of the Services, the Contract/agreement Price and/or the time schedule that are (i) agreed by the Parties upon request from either Party, or (ii) a consequence of Buyer’s default to meet the time schedule.
c. Appoint an individual who shall be authorized to act on behalf of Buyer, with whom TMG may consult at all reasonable times, and whose instructions, requests and decisions will be binding upon Buyer as to all matters pertaining to the Contract/agreement and the performance of the Parties hereunder.
d. Supply timely all information required for TMG to perform the Services.
e. Make available all licenses, permits and authorizations required for TMG to supply the Services and for Buyer to comply with its obligations under the Contract/agreement.
f. Give full Site access to TMG’s personnel and representatives to supply the Services under the Contract/agreement.
g. Make sufficient office space and facilities available for TMG’s personnel and representatives at Site.
h. Supply safe and healthy working conditions a tSite for TMG’s personnel and representatives.
10. TERMS OF PAYMENT
a. All payments shall be made in accordance with the payment schedule specified in the Contract/agreement.
b. All payments shall be made in the designated currency without any set offs whatsoever. Payments shall be deemed effected when the bank account indicated by TMG has been fully credited.
c. Unless otherwise agreed payments shall be made within 14 (fourteen) days from the date of invoice. Buyer shall owe to TMG, as off the last day of the term of payment (without any notice of default being required) a late payment interest rate equal to the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before 1 January and 1 July in each year plus 7%, on all overdue amounts.
d. Any loss on foreign exchange rate transactions resulting from Buyer’s delayed payment shall be borne by Buyer.
e. Disputes regarding the correctness of invoices shall be communicated to TMG in writing within 30 (thirty) days from invoice date. Thereafter Buyer’s right to dispute the correctness of the invoice shall be expired. Only payment of the part of the invoice in dispute may be withheld by Buyer.
f. TMG reserves the right to request for a down payment of full or partial payment of the agreed price. If and to the extent that Buyer is in default of payment and in case of bankruptcy, petition for suspension of payment and/or closure or liquidation of Buyer’s enterprise all TMG claims are immediately due and payable. All costs for TMG resulting from failure, untimely or improper fulfillment of any obligation by Buyer for the latter under this contract/agreement/agreement shall be borne by Buyer. These costs include the costs of summons, collection and bailiff, cost of counsel / attorney at law and all other non- legal and court costs. These costs are set by TMG for at least 15% of the contract/agreement/agreement price, Buyer is in default by the fact of non or improper performance of its obligations. TMG is entitled to suspend the fulfillment of any obligation to Buyer until Buyer has fulfilled all of its obligations to TMG.
11. PAYMENT SECURITIES
The Parties may agree on specific payment securities with regard to the payments under the Contract/agreement. Any such security shall be issued by a first class bank nominated by the Party providing the security and shall be irrevocable and further in a format acceptable to the other Party. The Party providing the payment security shall bear the cost charged by its bank and shall be obliged to extend the term ofthesecurityattheotherParty’srequestaccordingtothe extension of the time schedule.
12. TAXES, DUTIES, LEVIES, ETC.
The Contract/agreement Price is net of any taxes, duties, fees and such like levied by any governmental, state, or local authority in the country of Buyer or the Site, whether
levied against Buyer or against TMG. If such taxes, duties, fees and such like would arise, Buyer shall instantly pay these taxes, duties, levies or reimburse them if paid by TMG.
13. INTELLECTUAL PROPERTY RIGHTS
TMG, to the best of its knowledge, states and represents that its existing intellectual property rights relating to the Services do not infringe upon the rights of any other person or legal entity, and are free from any claims. TMG shall not accept any liability for infringement of intellectual property rights, which has not been determined by final court decision not subject to further appeal or review. Buyer is obliged to cooperate in the transfer of rights in case TMG develops anything, under the contract/agreement/agreement for which intellectual property can be connected without the rights for a fee.
Subject to the conditions set out hereinafter TMG warrants to Buyer that the Services will be performed with that degree of skill, diligence and prudence, which would reasonably and ordinarily be expected from a skilled and experienced provider of services, engaged in the same type of undertaking and under the same or similar circumstances, seeking to comply with its contract/agreement obligations.
a. The warranties set out herein do not apply:
to faults which are not promptly notified in writing to TMG.
to faults related to materials provided, designs stipulated or drawings and specifications submitted by Buyer.
to faults due to improper installation, use, operation and maintenance of the Works.
to faults resulting from Buyer’s non-compliance with any and all instructions from TMG.
in case TMG has not, not in time, not in full or incorrect been informed with regard to the services to be carried out and/or conditions in which the services are to be performed.
b. This paragraph sets forth the sole and exclusive remedies of Buyer against TMG and the sole and exclusive liability of TMG to Buyer in case of any failure to meet the warranties set out herein.
a. To the fullest extent permitted by law, no Party shall bear liability to the other Party for any – direct or indirect – loss of profits, loss of business, loss of savings, loss of production or increased production cost, or for any indirect, consequential, special or punitive loss or damage, arising out of or in connection with its performance or non- performance under the Contract/agreement. This exclusion shall not extend to a Party’s liability for liquidated damages.
b. Buyer shall indemnify TMG against all claims from third parties, including shareholders, management board members, supervisory board members and staff of Buyer or legal entities and businesses affiliated to Buyer and other persons connected with Buyer’s organization arising out of or connected with the Services performed by TMG on behalf of Buyer, except where such claims result from intentional acts or omissions or gross negligence on the part of TMG. Buyer cannot claim TMG in case TMG fulfilled its contractual agreements.
c. Not withstanding anything else contained in the Contract/agreement TMG’s total liability from any cause whatsoever resulting from or connected with the Contract/agreement/agreement shall not exceed 10% of the Contract/agreement Price, furthermore liability is restricted to the maximum amount covered by our insurances plus deductibles in case 10% of the contract/agreement price would not be sufficient (court ruling).
16. TERMINATION AND/OR SUSPENSION
a. In the event that Buyer fails to fulfill any of its substantial obligations, including (without limitation) Buyer’s failure to fulfill its payment obligations, TMG shall have the right to suspend its performance in whole or in part with immediate effect without prior notice being required. All costs and damages resulting from Buyer’s non-fulfillment, whether or not TMG elects to suspend, will be borne by Buyer, in addition to a reasonable extension of time for performance of TMG’s obligations.
b. TMG shall resume its activities upon payment of all due invoices and costs and damages. TMG is entitled to terminate the Contract/agreement if the non-fulfillment of Buyer’s obligation(s) not rectified by Buyer within 90 (ninety) days after notice thereof, and at any time without prior notice being required in case of bankruptcy and/or insolvency (provisional) suspension of payment, or (partial) winding-up, closing down or dissolution of Buyer’s business. Without prejudice to the right of TMG to be indemnified for all damages and costs resulting from termination and/or suspension, TMG shall receive all payments due until the date of termination. If Buyer’s financial condition at any time does not justify continuance of the Service on the agreed terms of payment, TMG may require additional payment security or full or partial payment in advance.
c. In the event of Buyer’s termination of the Contract/agreement without cause or its suspension for convenience TMG shall be entitled to payment of the unpaid part of the Contract/agreement Price minus the costs of the Services that can be avoided.
17. FORCE MAJEURE
A Party is not liable for non-fulfillment of any of its obligations if due to an event beyond such Party’s reasonable control, whether or not foreseen at conclusion of the Contract/agreement, such as but not restricted to fire, flood, epidemic outbreaks, war, riots, breakdown, strikes and/or delay in transportation (hereinafter referred to as “an event of force majeure”) provided that the party invoking the event of force majeure gives written notice thereof within 15 (fifteen) calendar days from the date of occurrence of the event of force majeure. The obligation(s) of the Party invoking the event of force majeure is (are) suspended as long as and to the extent that the event of force majeure exists. Pending resumption of performance by the failing Party, the other Party may suspend its own performance, except for the obligation of Buyer to reimburse TMG for Services supplied up to and including the date of occurrence of the event of force majeure. Parties are not entitled to terminate the Contract/agreement in case of an event of force majeure except when this event of force majeure continues for more than six months.
Unless explicitly, in writing, agreed upon otherwise all communications and documents exchanged between Parties in connection with the Contract/agreement shall be in the English language.
19. ENTIRE AGREEMENT
The Contract/agreement contains the complete agreement for the performance of the Services between TMG and Buyer and supersedes all previous communications of the Parties whether orally or in writing, with the exception however of any applicable confidentiality or secrecy agreement entered into by the Parties prior to the date of the Contract/agreement.
20. NO SET OFFS
Parties’ liabilities and remedies under the Contract/agreement will be considered independently from each and any earlier subsequent contract/agreement and any right to set off between contract/agreements is excluded.
No amendment to and/or modification of the present Contract/agreement shall be binding upon any Party unless approved and duly signed by both Parties.
If one or more provisions of the Contract/agreement, including the GTC, should be or become invalid, the validity of the remaining provisions shall not be affected thereby. TMG and Buyer undertake to replace such invalid provision by a valid one, set forth in the same spirit and with comparable economic consequences as the invalid provision.
Neither Party shall be entitled to transfer or assign the rights and/or obligations under the Contract/agreement to any third party without the prior written consent of the other Party, such consent not unreasonably to be withheld.
24. THIRD PARTY RIGHTS
The provisions of the GTC and the Contract/agreement are for the benefit of the Parties only, and are not intended to benefit any third party or to be enforceable by any third party. The exercise by a Party of its rights in relation to the GTC or the Contract/agreement shall not be subject to the consent of any third party.
Provisions of these GTC that by their nature or tenor, such as but not limited to confidentiality and liability, are meant to remain in force after termination, for whatever reason, of the Contract/agreement, shall survive the Contract/agreement.
26. APPLICABLE LAW
These GTC and the Contract/agreement shall be governed, construed and interpreted in accordance with the laws of the Netherlands.
All disputes arising out of or in connection with the Contract/agreement, which cannot be settled between the Parties amicably within 30 days after first written notification, shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The ruling language shall be English. The place of arbitration shall be Amsterdam, The Netherlands.
These conditions shall be referred to as “General Delivery Conditions Services TMG, February 2015”.