INTEGHRA GENERAL TERMS AND CONDITIONS OF CONTRACT FOR THE SUPPLY OF EQUIPMENT AND SERVICES
The scope of supply for Equipment and / or Services ("Services"; hereafter together referred to as "Work") shall be determined by the written agreement between both parties. All Work will be performed at the request of Buyer, and will be more specifically described in, and authorized by, a Purchase Order. INTEGHRA shall not perform any of the Work unless and until a Purchase Order for the Work or portion thereof is issued by Buyer. Each Purchase Order, and any attachments thereto that are issued by Buyer, will be incorporated into and made a part of this Agreement. INTEGHRA shall only accept Purchase Orders that do not establish new or conflicting terms and conditions from those set forth in this Agreement. INTEGHRA may accept Purchase Orders incorporating special project terms and conditions, which have been separately and expressly agreed upon in writing by the parties. In the event of any conflict between a Purchase Order and the terms of this Agreement, the terms of this Agreement shall always prevail.
INTEGHRA's offer shall be binding for 90 days after the date of issue. The issue date is the date on which the document has been signed by INTEGHRA.
3. Order & Order Confirmation
A contract or order shall be deemed valid only after INTEGHRA has issued a written Order Acknowledgement Statement, indicating the acceptance of the order.
4. Prices / Deliveries and Dispatches
Work shall be EXW (INCOTERMS 2010) Netherlands, unless otherwise expressly agreed upon by INTEGHRA and Buyer in writing. INTEGHRA shall make no insurance policy covering the Buyer's risk, unless this has been agreed upon in writing. On request, dispatch will be handled by INTEGHRA at costs. The Buyer will be charged for any expenses incurred to INTEGHRA in this connection. All prices shall be EXW, including packing, sales tax or other taxes applicable in Netherlands for export. No other taxes are included in our prices. Any additional charge, such as, but not limited to, freight charges, insurance premiums, transit fees, import and other permits costs shall be borne by the Buyer. All certification and legalization of any document required for importation will be issued on request and will be invoiced separately. If INTEGHRA is also responsible for supervision of commissioning, unless otherwise agreed, the Buyer shall pay the agreed allowance and any incidental costs required, e.g. travel costs, transport costs whatsoever to and in the country of destination, living costs, etc.
Payments shall be made by the Buyer at INTEGHRA's domicile according to the agreed terms of payment, without any deduction for cash discount, expenses, taxes levied, fees and duties. Unless otherwise agreed, payment for Equipment shall be made within 30 days from the date of invoice and shall be paid in the following preferred instalments:
- 15% as advance payment after receiving the order acknowledgement by the Buyer,
- 85% after INTEGHRA's advice that the Equipment is ready for dispatch.
For Services only:
- 100% after INTEGHRA's report signed by Buyer on site. Payment shall be deemed effected as soon as EUR have been made freely available to INTEGHRA at its domicile. In cases where bills of exchange arrange payment after INTEGHRA's agreement has been obtained, the Buyer shall pay the cost of discounting of such bills, bill of exchange taxes and collection charges. The Buyer shall observe and adhere to the agreed payment schedules at all times. Buyer shall not postpone payments because of delays or stoppages in transport, delivery, erection, commissioning or taking over of the Work or Services where these delays and/or stoppages have occurred due to circumstances beyond INTEGHRA's control. Similarly, all payment schedules and commitments shall be fully and promptly observed and adhered to, where unimportant components are missing, and if post-delivery work is not prevented by the absence of such components and the Buyer is able to put the delivered Work into safe operation without grave consequences. In such cases, INTEGHRA shall endeavour to deliver any such missing components at the earliest possible time. If the advance payment or the contractually agreed securities are not provided in accordance with the terms of the contract, INTEGHRA shall be entitled to adhere to or to terminate the contract, and shall in both cases be entitled to claim damages. If the Buyer delays a further payment for any reason, or if INTEGHRA is seriously concerned that it will not receive payments in total by the due date because of circumstances having taken place since entering into the contract, INTEGHRA, without being limited in its rights provided by law, shall be entitled to refuse the further performance of the contract and to retain any Work ready for dispatch until new terms of payment and delivery have been agreed and until INTEGHRA has received satisfactory securities. If such an agreement cannot be reached within a reasonable time, or in case INTEGHRA does not receive adequate securities, INTEGHRA shall be entitled to terminate the contract and to claim damages. If the Buyer delays any payments, the Buyer shall be liable, without reminder, for interest with effect from the agreed date on which the payment was due at a rate prevailing at the Buyer's domicile, but not less than four per cent (4%) over the current interest rate of the ECB at the time. The right for any further damages is reserved by INTEGHRA.
6. Passing of title and risk
Title and risk of loss to Equipment shall pass to Buyer in accordance with the Delivery and Dispatch terms set forth above in Section 4. INTEGHRA shall be liable for any damage to the Equipment, which occurs before risk has passed to the Buyer.
7. Delivery time
The acceptable and valid delivery schedule from INTEGHRA will be sent with the Order Acknowledgement to Buyer. Delivery times set for Work can only be observed if all documents to be supplied by the Buyer, necessary permits and releases, especially concerning supply and dimensions, are received in time and if agreed terms of payment and other obligations of the Buyer are fulfilled. Unless these conditions are fulfilled in time, delivery time shall be extended appropriately; this shall not apply where INTEGHRA is responsible for the delay.
8. Product Information
All information, specifications and data contained in product brochures and price information presented by INTEGHRA are binding only to the extent, that they are expressly included in the contract by reference and mutually agreed upon by INTEGHRA and Buyer.
9. Drawings and descriptions
Each party to the contract retains all rights to technical documents provided to the other. The party receiving documents recognizes these rights and shall, without previous written consent of the other party, not make these documents available to any third party, in whole or in part, nor use them for purposes other than those for which they were handed over.
All products are subject to INTEGHRA's standard production tests. If the Buyer requires special test procedures or a factory test, this will be carried out at the expense of the Buyer.
All Work supplied to Buyer will be new and free from defects in design, materials and workmanship. All Work will be performed by INTEGHRA in a professional manner, consistent with the standard of skill and care exercised by qualified contractors on projects of comparable scope and complexity, in a similar location and in conformance with the requirements of this Agreement. INTEGHRA warrants that it is sufficiently experienced, properly qualified, registered, licensed, equipped, organized and financed to perform the Work in compliance with the terms of this Agreement. The warranty period for Equipment is twelve (12) months from the date of commissioning, but no longer than eighteen (18) months from the date of notification that the goods are ready for dispatch, whichever occurs first. During this warranty period for Equipment, INTEGHRA undertakes to repair and/or replace any part found to be faulty due to errors in design or manufacture, or to be made of faulty materials. Complaints of defects in Work delivered shall be made in writing, and without any delay, as soon as the defect is discovered, or seems to have been discovered. Equipment or parts may only be returned upon prior agreement in writing. For Services, if the repair is carried out on site by one of INTEGHRA's service engineers, the warranty shall cover only the material and the effective working hour costs. Travelling time, expenses and board and lodging will be charged to the Buyer. In the event any deficiencies are discovered in the Services Work resulting from INTEGHRA's failure to comply with the above standards and Buyer promptly notifies INTEGHRA thereof in writing, but in no event later than thirty (30) days following completion of the Services, INTEGHRA shall provide remedial Services to correct such deficiencies at no cost to Buyer. The warranty will only be honoured, when no repairs have been carried out by any third party, and no spares have been used other than those delivered by INTEGHRA. The defective parts shall be forwarded to INTEGHRA, carriage paid for repair or replacement. The defect parts remain the property of INTEGHRA. For goods supplied by subcontractors, Buyer will ensure that all such goods carrying a manufacturer's warranty are registered with the manufacturer in Buyer's name. No other obligations for warranty or indemnity shall be accepted, unless specifically agreed upon in writing. There are no other warranties, express or implied, by operation of law or otherwise, of Equipment. Services or Equipment sold or furnished under this Agreement or in connection herewith. INTEGHRA disclaims all implied warranties of merchantability, satisfaction and fitness for a particular purpose. INTEGHRA's express warranties will not be enlarged, diminished, or affected by and no obligation or liability will arise out of. INTEGHRA's rendering of technical or other advice or service in connection with the Equipment. The foregoing warranties and remedies are exclusive and in lieu of all other warranties and remedies. The warranties set forth in this section constitute INTEGHRA's sole liability and Buyer's exclusive remedy for any breach of such warranties.
INTEGHRA shall be liable for damages to the Buyer's property occurring during the period where INTEGHRA is doing commissioning work on the Work, but only if it is proved that such damage was caused by negligence on the part of INTEGHRA or anyone from whom INTEGHRA is responsible in connection with the performance of the contract. Each party shall indemnify and hold harmless the other party, its parent, subsidiaries, affiliated entities, and their respective officers, directors, employees and agents from and against such losses, damages, costs, claims, suits, judgments, expenses (including reasonable attorneys' fees) and other liabilities to the extent directly arising out of its own breach, performance or non-performance of, or failure to properly perform its obligations hereunder, and to the extent of its own negligence and wilful misconduct, including, without limitation, personal injury, death, and tangible property damage. A party's indemnity and hold harmless obligations as to any claim or suit within the scope of this clause shall be reduced to the extent of any concurrent fault, negligence or violation of law by the other party.
INTEGHRA shall defend any suit or claim that may be instituted against the Buyer for alleged infringement of patents and trademarks relating to the Equipment furnished pursuant to the Work except to the extent that the claim or adverse final judgment is based on (i) specifications Buyer provides to INTEGHRA for the Equipment; (ii) code or materials provided by Buyer as part of the Equipment; (iii) Buyer running the Equipment after INTEGHRA notifies Buyer to discontinue running due to such a claim; (iv) Buyer combining the Equipment with non-INTEGHRA Equipment, data or business process; (v) use of, or access to, the Equipment by any person or entity other than an employee of Buyer or one of Buyer's affiliates; or (vi) Buyer altering the Equipment. If INTEGHRA receives information concerning an infringement claim related to an Equipment, or Buyer's use of an Equipment is enjoined by a court of competent jurisdiction, INTEGHRA may. at its expense and without obligation to do so, either (i) procure for Buyer the right to continue to run the allegedly infringing Equipment, or (ii) modify the Equipment or (iii) replace it with a functional equivalent, to make it non-infringing, in which case Buyer will stop running the allegedly infringing Equipment immediately. If neither procuring the right to continue the Equipment's use, replacing the Equipment with a functional equivalent, or modify the Equipment to make it non-infringing is available to INTEGHRA on reasonable terms, then Buyer may return to INTEGHRA, at INTEGHRA's cost and expense, any infringing Equipment, and INTEGHRA shall refund, in full, the pro-rata purchase price (depreciated on a 5 year straight line basis) of the returned Equipment. THE PROVISIONS OF THIS SECTION STATE THE EXCLUSIVE LIABILITY OF INTEGHRA AND THE EXCLUSIVE REMEDY OF OWNER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY OR TRADE SECRET MISAPPROPRIATION OR INFRINGEMENT BY THE PRODUCT, ANY PART THEREOF AND ANY MATERIAL OR SERVICES PROVIDED HEREUNDER, AND ARE IN LIEU OF ALL OTHER REMEDIES, LIABILITIES AND OBLIGATIONS.
14. Limitation of Liability
Notwithstanding any other provision to the contrary herein, and excepting INTEGHRA's obligation to indemnify under Section 13. the maximum aggregate liability arising out of or in connection with this Agreement of INTEGHRA, its affiliates, vendors and subcontractors, and their employees, agents, partners, officers and directors (referred to herein as the "Released Parties") shall not exceed in the aggregate 50% of the amounts actually paid to INTEGHRA for the individual Purchase Order giving rise to such claim and Buyer hereby releases the Released Parties from any liability in excess thereof, whether such liability arises in contract or tort, irrespective of negligence, strict liability or otherwise. In no event shall INTEGHRA, its affiliates, or their officers, directors, employees or their subcontractors be liable for any form of indirect, special or consequential loss or damage, howsoever caused, irrespective of fault, negligence or strict liability. This clause shall specifically survive completion or termination of the Agreement.
15. Force Majeure
INTEGHRA shall not be liable for non-fulfilment or delayed fulfilment of the agreement as a result of a Force Majeure event (war, riots, terrorism, intervention by the government or public authorities, fire, strikes or lockouts, export or import bans, non-deliveries or incomplete deliveries from sub-suppliers, shortage of labour, fuel or power or any other cause beyond the control of INTEGHRA) which is likely to delay or prevent the manufacture and delivery of the goods sold. If delivery is temporarily prevented for one or several of the above reasons, the delivery date shall be extended accordingly.
INTEGHRA shall, to the extent available, purchase and maintain during the term of this Agreement, insurance, as set forth below:
- (i) Worker's Compensation with statutory limits, and Employers' Liability Insurance with a limit of $1,000,000 per accident.
- (ii) Commercial General Liability Insurance on standard bureau form excluding Professional Liability but including Premises-Operations and Completed Operations Insurance for one (1) year after completion, with a combined single limit for bodily injury and property damage of $1,000,000 per each occurrence and $2,000,000 in general aggregate.
- (iii) Commercial Automobile Liability Insurance (including owned, non-owned and hired automobiles) with a combined single limit for bodily injury and property damage of $1,000,000 per accident.
17. Suspension and Termination
- (i) INTEGHRA must be reimbursed for costs associated with suspension and termination of the Agreement by Buyer for convenience or without cause. If Buyer terminates for convenience or without cause Buyer will be liable to INTEGHRA for certain costs associated with the manufacture of custom Equipment. Buyer may owe INTEGHRA up to the full purchase price of a custom-manufactured or manufactured-to-order Equipment. INTEGHRA will make reasonable efforts to minimize Buyer's costs by attempting to utilize that work and material to fulfil orders from other customers, but INTEGHRA will not be liable to Buyer if INTEGHRA is unable to do so.
- (ii) In the event of suspension of the performance of the Work at Buyer's request, INTEGHRA shall be entitled to a reimbursement of direct and indirect expenses and costs, which were reasonably incurred by INTEGHRA as a result of the suspension. The Project Schedule and all other dates herein by which INTEGHRA's responsibilities are measured shall be equitably adjusted (including any adjustment to any compensation amounts) to reflect any delays resulting from such suspension.
18. Applicable Law and Arbitration
- (i) For Buyers having their main place of business in Netherlands or in the European Union (except United Kingdom), the agreement shall be governed by and construed in accordance with the laws of Netherlands, excluding the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising out of or in relation to this contract, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the Netherlands Rules of International Arbitration of the Netherlands Chambers of Commerce in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be one; the seat of the arbitration shall be in Amsterdam; the arbitral proceedings shall be conducted in English
- (ii) For Buyers having their main place of business outside the European Union or in the United Kingdom, the agreement shall be governed by and construed in accordance with the laws of England, excluding the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising from or connected with this Agreement, including one regarding the existence, validity or termination of the Agreement or the consequences of its nullity (a "Dispute") shall be referred to and finally resolved by arbitration under the Rules of the ICC (International Chamber of Commerce). The arbitral tribunal shall consist of one arbitrator who shall be an English lawyer of at least ten years' standing. The seat of the arbitration shall be in London and the language of the arbitration shall be English.
No delay or omission by either Party to the Agreement to exercise any right or power hereunder shall impair such right or power or be construed to be a waiver thereof.
Wherever under the Agreement one Party is required or permitted to give formal or legal notice to the other, such notice shall be deemed given when delivered in hand or by registered mail and addressed if to INTEGHRA to INTEGHRA B.V., Ganzenstraat 1, 3815JA Amersfoort, The Netherlands, if to the Buyer, to the address specified on the Purchase Order. Either Party to the Agreement may from time to time change its address for notification purposes by giving the other prior written notice of the new address and the effective date hereof.
21. Partial Invalidity
Should any regulation of the Agreement prove to be invalid or unfeasible, then the Parties shall be obligated to replace the invalid or unfeasible regulations by valid or feasible ones that come closest to the current intention of the contracting Parties. The effectiveness of the other regulations shall remain unaffected thereby.
22. Final Provisions
Any amendment or supplementation of the Agreement shall require the written form. The written form may be dispensed with only in writing. The Agreement with these General Terms and Conditions of Contract constitute the entire agreement between the Parties with respect to the subject matter thereof and there are no representations, understandings or agreements relative thereto which are not fully expressed therein. The Agreement cancels and supersedes all prior agreements, proposals, letters of intent, negotiations and representations, whether oral or written, between the Parties relating to the subject matter hereof. The Agreement shall be binding on the Parties thereto and their respective successors and assigns, but neither Party may or shall have the power to assign or transfer the Agreement without the prior written consent of the other Party, except that INTEGHRA may transfer the Agreement to a INTEGHRA Affiliate. Consent shall not be unreasonably withheld or delayed.