Terms and Conditions of Purchase

TERMS AND CONDITIONS OF PURCHASE Reshift Digital BV         

 

1 Definitions

In these Terms and Conditions, the following words will have the following meanings:

Reshift: the private limited liability company Reshift B.V.

 

Contractor: any natural or legal person with whom Reshift enters into an Agreement or who submits a quotation to Reshift or with whom Reshift has a legal relationship or towards whom Reshift commits a (legal) act. 

Agreement: any agreement made between Reshift and the Contractor, as well as any changes or additions thereto and all (legal) acts to enter into or execute that agreement. 

Service: the goods and rights of usage in such goods supplied and to be supplied by the Contractor and/or the services and work to be rendered by the Contractor for Reshift, which are the subject of the Agreement. 

Specifications: the (technical) specifications and/or descriptions of the Service, as recorded in the Agreement or in the documents explicitly mentioned therein in that context or in other documents explicitly signed for approval by the parties. 

2 Applicability

2.1 These General Terms and Conditions apply to all quotations, form part of all Agreements and govern all legal relations between Reshift and the Contractor and all (other) acts and legal acts of Reshift and the Contractor, including negotiating and other pre-contractual situations.

2.2 Reshift expressly dismisses the applicability of any general or specific terms or conditions of the Contractor.

3 Quotations, Orders and the Conclusion of Agreements

3.1 Requests for quotations will not be binding on Reshift and are no invitation to the Contractor to submit a quotation.

3.2 By submitting a quotation, the Contractor undertakes towards Reshift to render the Service for a fixed total price or a fixed advanced pricing within the delivery term set.  The quotation will remain valid for a period of at least sixty calendar days.  Any costs incidental to the submission of a quotation will not be reimbursed by Reshift.

3.3 In the event of apparent errors in or conflicts between elements of Reshift’ request for a quotation the Contractor must consult with Reshift before submitting a quotation.

3.4 Reshift is not required to provide any information about whether or not it will place an order with the Contractor.  Any documentation to be provided by Reshift to the Contractor prior to the submission of a quotation must be returned to Reshift free of charge if no Agreement is made. 

3.5 An Agreement is made only if and to the extent that Reshift accepts a quotation by placing an order.

3.6 If the Contractor has not yet commenced the execution of the Agreement Reshift has the right to cancel this Agreement at any time. 

3.7 Only in special circumstances may Reshift cancel the Agreement if the Contractor has already commenced the execution of the Agreement. Special circumstances include but are not limited to terrorist threats, at the exclusive discretion of Reshift, and (imminent) (natural) disasters. The Contractor never has the right to demand any compensation from Reshift for costs incurred or loss sustained in connection with a decision as referred to in this Article.

3.8 If the Contractor commences the work without having received an order from Reshift, it will do so at its own risk and expense.

4 Changes and Additions

4.1 Any changes and additions to any provision contained in an Agreement and/or the General Terms and Conditions apply only if agreed in writing.

4.2 Changes and/or additions agreed as referred to in Article 4.1 will apply to the relevant Agreement only.

4.3 In the event of errors in or conflicts between elements of the order the Contractor must consult with Reshift prior to filling the order so that it can be changed if necessary.

4.4 Reshift has the right to demand additional work.  The term additional work applies only if Reshift has given written instructions to that effect.

 

5 Quality and Description of the Service

The Service will:

- With regard to the delivery term, quality, volume, measurements and description comply with the description contained in the Agreement (including the Specifications);

-  be accompanied by the necessary instructions to Reshift and/or its personnel to enable Reshift and/or its personnel to independently use the Service;

- contain all licences and/or inspection certificates required for the execution of the Agreement;

- contain the drawings and other preparatory work required for the execution of the Agreement; 

- contain the installation and/or assembly and/or connecting and/or readying for use such that the Service will function according to the Specifications;  

- comply in all respects with the applicable statutory regulations and requirements with regard to the design, composition and quality.

 

6 Inspection Prior to Delivery  

6.1 Prior to delivery the Contractor will carefully inspect whether the Service complies with the agreement.  If Reshift so requires, the Contractor will notify Reshift in time of such inspection.  Reshift and/or any third parties to be designated by it have the right to attend the inspection.  At Reshift’ request the Contractor will provide Reshift with a copy of its inspection report(s).  If Reshift exercises its right to inspect, the Contractor will arrange for the facilities reasonably required by Reshift for such inspection.

6.2 If after inspection Reshift concludes that the Service does not comply in whole or in part with what has been agreed, Reshift will notify the Contractor (in writing).  In that event the Contractor – insofar as possible – must take the measures within the reasonable term set by Reshift required to as yet comply with the requirements of the order.

6.3 Inspection by Reshift as referred to in this Article does not release the Contractor from any liability.

 

7 Delivery of the Service 

7.1 The Contractor will deliver the Service in its entirety at the time and in the place stipulated by the Agreement.

7.2 The time and term of delivery will be binding.  As soon as the Contractor knows or expects that the Service cannot be delivered in time, it will notify Reshift immediately in writing, stating the reasons.

7.3 If the Service is not delivered in whole or in part at the agreed time of delivery or within the agreed term of delivery, Reshift will have the right to terminate the Agreement without any notice of default or judicial intervention being required with regard to the Service not delivered and the Service that has already been delivered under the Agreement but can no longer be used effectively in Reshift’ opinion due to the non-delivery of other elements of the Service, all without prejudice to Reshift’ other rights.

7.4 If a penalty has been agreed in the event of late delivery by the Contractor this penalty will not affect any obligation of the Contractor to pay compensation.  Reshift will be free to demand specific performance of the Agreement in addition to the penalty.

8 Inspection upon Delivery and Acceptance

8.1 If upon delivery the Service turns out not to comply with the Agreement in whole or in part, Reshift will send the Contractor a written notice of rejection and the Service will not be accepted.  The Service delivered will be accepted if it corresponds with the description in the Agreement in terms of appearance.

8.2 If an acceptance test has been agreed the agreed procedure will be followed and Reshift will accept the Service if the results of such test show that the requirements set are satisfied.

8.3 Acceptance does not oppose later reliance by Reshift on non-compliance by the Contractor with its obligations.

 

 

9 Transfer of Ownership and Risks 

9.1 The Service as well as elements thereof, such as materials, will become the property of Reshift upon acceptance by Reshift.  Until acceptance by Reshift the Contractor will bear the risk.

9.2 Any property delivered by the Contractor, which have been submitted by Reshift to the Contractor for repair, processing or treatment will be at the Contractor’s risk for the period of repair, processing or treatment.

9.3 If in deviation from the provisions contained in Article 11 full or partial advance payment has been agreed, Reshift will acquire by virtue of the advance payment made, without any act of delivery being required, the ownership of all materials, raw materials and semi-finished products used by the Contractor in the execution of the Agreement or intended for such purpose, up to the value of the advance payment. The Contractor is required to keep for Reshift said materials, raw materials and semi-finished products free from charges and rights, and to store the same separately for Reshift.

9.4 The provisions contained in the last sentence of Article 9.1 will remain fully effective following a transfer of ownership pursuant to Article 9.3.

10 Price

The agreed price is binding and inclusive of VAT, unless otherwise agreed.  The price includes standard packaging, transportation, import duties, any required drawings or other preparatory work, installation and any obligations of the Contractor related to the quality criteria applicable to the Service as referred to in Article 5 and/or any other agreed obligations of the Contractor. 

11 Payment

11.1 Reshift has the right at all times to set off any amounts that the Contractor owes Reshift against any amounts Reshift owes the Contractor.

11.2 After it has notified the Contractor accordingly, Reshift has the right to make payments for the Contractor to third parties, for instance to sub-contractors and suppliers engaged by the Contractor in the execution of the Agreement, if the progress of the work could be endangered by the failure to make such payments.  These payments will be deducted from any amounts due by Reshift to the Contractor under the Agreement.

12 Warranty Obligation

12.1 The Contractor warrants that the Service meets the criteria set by Article 5 in all respects.

12.2 Without prejudice to the provisions contained in Article 13, if Reshift upon acceptance of the Service notifies the Contractor in writing of any defect in the Service within the warranty period specified in the Agreement, the Contractor will replace or repair the Service as soon as possible, at the option of Reshift, to remedy the defects at the Contractor’s expense. 

12.3 In the event of a defect Reshift has the right to return the Service in question or parts thereof to the Contractor at the latter’s risk and expense unless the parties have agreed that the Contractor will carry out the necessary replacement or repairs at Reshift.

12.4 If the Contractor fails to comply with its duty of replacement or repair Reshift will have the right without further notice of demand to (cause others to) carry out the replacement or repair at the Contractor’s expense.

12.5 For a replaced or repaired Service, the agreed warranty term will start over as soon as this Service has been accepted by Reshift.

12.6 If the Service is intended to be incorporated by Reshift into installations and/or systems the warranty period will not commence until those installations and/or systems have been taken into use.

12.7 If no warranty period has been specified in the Agreement a warranty period of two years applies from acceptance upon delivery as referred to in Article 7.

13 Liability and Indemnity of Contractor

13.1 The Contractor will fully compensate all direct and indirect loss sustained by Reshift or third parties resulting from or related to the execution of the Agreement (including but not restricted to trading loss, environmental damage, damage to materials and other property, personal injury, costs of judicial and extrajudicial collection) regardless whether or not that loss or damage has been caused by the Contractor himself, its personnel or any other persons engaged by the Contractor in the execution of the Agreement.

13.2 The provisions contained in Article 13.1 apply also to any prejudiced third parties.  The Contractor will indemnify Reshift against any claims enforced by such third parties against Reshift.

14 Liability of Reshift

14.1 Save in the event of wilful intent or gross negligence on Reshift’ part or that of its executive personnel Reshift will not be liable for any loss or damage sustained by the Contractor, its personnel or any other persons engaged by the Contractor in the execution of the Agreement (including but not limited to the destruction and loss of property).

14.2 The limitation of liability of Reshift as contained in Article 14.1 also applies to prejudiced personnel of the Contractor and other prejudiced persons engaged by the Contractor in the execution of the Agreement.  The Contractor will indemnify Reshift against all claims filed by the parties concerned against Reshift in connection with the Agreement.

15 Suspension

15.1 Reshift may at all times suspend the Service to be delivered by the Contractor in whole or in part in the sense that the Contractor will be required to postpone delivery and/or interrupt the work for a period to be determined by Reshift. The Contractor is required to limit any damage arising from such suspension as much as possible by taking appropriate measures. 

15.2 Any provisions to be made by the Contractor as a result of the suspension will be set off as additional work, to which Article 4.4 applies. The provisions contained in the preceding sentence do not apply, if suspension was ordered because of incorrect actions by the Contractor.

16 Force Majeure

16.1 If the parties cannot comply with their obligations towards each other due to force majeure (nonattributable breach) the obligations will be suspended for the duration of the event constituting force majeure.

16.2 If the event constituting force majeure has lasted a month, either party has the right to terminate the Agreement in whole or in part by means of a registered letter.

16.3 The parties will notify each other as soon as possible of a (possible) event constituting force majeure.

17 Termination

17.1 In the event of inadequate or late compliance by the Contractor with any of its obligations arising from the Agreement it will be in default and Reshift will have the right, without any notice of default or judicial intervention being required:

- To suspend execution of the Agreement and any directly related Agreements until sufficient security has been provided for performance; and/or  

- To terminate the Agreement and any directly related Agreements in whole or in part; 

All without prejudice to Reshift’ other rights under any Agreement whatsoever with the Contractor and without Reshift being required to pay any compensation. 

17.2 In the event of bankruptcy, (provisional) suspension of payments, discontinuation or liquidation of the Contractor’s business all Agreements with the Contractor will be terminated by operation of the law, unless Reshift notifies the Contractor within a reasonable term that it wishes performance of (part of) the Agreement(s) in question, in which case Reshift without any notice of default being required may:

- suspend the execution of the Agreement(s) in question until sufficient security has been provided for performance; and/or  

- suspend any of its obligations towards the Contractor on whatever account; 

All without prejudice to Reshift’ other rights under any Agreement whatsoever with the Contractor and without Reshift being required to pay any compensation. 

17.3 If an event occurs as described in (i) Article 17.1 or (ii) Article 17.2 (i) all claims of Reshift against the Contractor under the Agreement(s) in question and, respectively, (ii) all claims of Reshift against the Contractor will become due immediately and fully.

17.4 The applicability of Section 6:278 of the Dutch Civil Code is hereby excluded explicitly.

18 Exercise by Reshift of its Right of Suspension, Termination and/or Voidance   

If based on the information known to it at that time Reshift reasonably holds the opinion that it may legally exercise a right of suspension, termination or voidance, the Contractor cannot rely on any form of compensation, at any rate not on statutory interest, in the event that it is established later that Reshift did not lawfully exercise those rights.

19 Transfer of Rights and Obligations and Sub-Contracting 

19.1 Without Reshift’ written consent the Contractor may not transfer any rights under the Agreement or any part thereof.

19.2 Without Reshift’ written consent the Contractor may not sub-contract the Agreement or any part thereof.

19.3 The consent as referred to in Articles 19.1 and 19.2 will not release the Contractor from any obligation under the Agreement; the Contractor is responsible for the contributions of third parties as if they were its own Service.

20 Intellectual Property

20.1 Any intellectual property rights in a Service especially developed by the Contractor for Reshift will vest in Reshift or will be transferred to Reshift.

20.2 If the Service has not been developed for Reshift specifically, the Contractor will grant to Reshift a world-wide, non-exclusive, perpetual licence to any intellectual property rights in the Service.  The licence fee will be included in the price of the Service.

20.3 To the extent that the transfer of intellectual property rights as referred to in Article 20.1 or the grant of a licence as referred to in article 20.2 requires a specific deed or other formalities, the Contractor hereby declares it will cooperate in such formalities or such deed.

20.4 The Contractor warrants and represents that the Service will not infringe the intellectual property rights of third parties.  The Contractor indemnifies Reshift against all claims of third parties based on any (alleged) infringement of such rights.

20.5 If and to the extent that the Service has been developed for Reshift specifically, but is not protected by intellectual property rights, the Contractor may execute the agreed Service for third parties only with the written consent of Reshift.

21 Materials, Parts, Certificates, Drawings, etc. Provided by Reshift

21.1 Materials, parts, certificate, drawings, etcetera, provided by Reshift to the Contractor will remain Reshift’ property and must be returned upon expiry of the Agreement.

21.2 Until the property referred to in Article 21.1 have been returned to Reshift, the Contractor will bear the risk for this property.

21.3 The Contractor will insure all property received from Reshift in connection with the Agreement at its own expense on the usual conditions against all damage caused by full or partial loss or damage. 

21.4 Any other costs related to the property made available by Reshift (such as transport, storage and installation) will be paid by the Contractor.

21.5 Upon receipt of the property referred to in this Article the Contractor must inspect the same whether it corresponds with the Specifications agreed in the order.

22 Confidentiality 

22.1 The Contractor will treat all information and/or data obtained in the execution of the Agreement as strictly confidential and not disclose the same to third parties – with the exception of third parties engaged by it in the execution of the Agreement – without Reshift’ written consent.

22.2 In the event of breach of this provision the Contractor will forfeit an immediately payable penalty of EUR 50,000 per incident, which penalty will not affect any duty of compensation of the Contractor.  Reshift will be free to demand specific performance of het Agreement in addition to the penalty.

 

 

23 Sustainability

23.1 To Reshift the Triple P-model (People, Planet, Profit), as adopted in the Reshift’ Code of Conduct, is essential. 

23.2 The Contractor warrants and represents it will comply with the Code of Conduct as published on Reshift’ website, a copy of which will be sent to the Contractor on request.

23.3 In quotations and Agreements, the Contractor must inform Reshift about the possible application of sustainable materials or materials with a sustainability quality mark.

23.4 The Contractor complies with and acts in accordance with all applicable regulations on safety, public health and the environment. 

23.5 The Contractor prevents contamination of the soil and ground water, minimises air and noise pollution on the Reshift’ site and complies with the regulations in effect on the Reshift’ site.   

23.6 The Contractor must arrange for proper and safe transportation, sound and safe equipment and skilled and qualified personnel who work in a safe, healthy and environmentally responsible manner. Reshift has the right to check these aspects of the Agreement. 

23.7 The Contractor will report each and any irregularity regarding safety, health and the environment and security. In case of incidents the Contractor, under the supervision of Reshift, will immediately take all measures to remove or isolate the substances released or to prevent contamination caused by such incidents.

24 Choice of Law and Jurisdiction

24.1 These General Terms and Conditions as well as the Agreement are governed by Dutch law.

24.2 The applicability of the Vienna Sales Convention 1980 is hereby excluded. 

24.3 Insofar as not prescribed otherwise by provisions of mandatory law any disputes between the parties will be submitted to the competent court of Utrecht, on the understanding that Reshift will have the right to file any claims against the Contractor, whether or not simultaneously, with other judicial tribunals that under national or international laws are competent to hear and decide on such claims.

 

 

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