TC Procurement of Products and Services Netherlands - Flipbook - Page 4
17. Liability
17.1. The Supplier is liable for and indemnifies and holds Riwal
harmless against any and all direct losses or damages whether in
contract, tort, breach of statutory duty or otherwise resulting from or
in connection with the performance of the Contract, regardless of
whether said loss or damage is caused by the Supplier itself, its staff,
by ether persons whom the Supplier has engaged in the performance
of the Contract or any ether third parties and regardless of whether
Riwal could have foreseen the possibility of such loss or damage.
17.2. Neither Party excludes liability in respect of loss or damage
caused by willful intent or gross negligence.
17.3. In the event that Supplier does not perform the Contract, or a
part thereof, on the agreed time or within the agreed period for
performance, or otherwise fails to meet the deliverables as agreed
upon, Riwal is entitled to charge Supplier for each calendar day it is in
default an immediately payable penalty of 1% percent of the total
price of the respective Contract, increased with VAT, to a maximum
percentage of 25% percent of the total price of the Contract. Riwal is
entitled to charge the maximum penalty at once, in the event that the
respective performance remains impossible. Riwal’s right to claim
penalties as set forward in this Section does not affect Riwal’s other
legal rights under a Contract or under applicable laws and is without
prejudice to Riwal’s right to seek compensation for the actual amount
of the losses incurred in excess of the amount of the liquidated
damages.
18. Force majeure
18.1. Force majeure is understood to mean circumstances that impede
the fulfillment of the Contract and which are not attributable to
Supplier. Supplier is obliged to report this force majeure situation to
Riwal in writing within one calendar day. Excluded from force majeure
are, at least, the following events:
18.1.1. specific strike at the Supplier and transport problems;
18.1.2. failure to obtain all equipment, materials, and/or (third party)
services required for the proper fulfillment of the Contract, unless
caused by circumstances that cannot in fairness be attributed to
Supplier;
18.1.3. late and/or stagnation of deliveries by Supplier’s suppliers;
18.1.4. incomplete deliveries by Supplier’s suppliers.
18.2. During force majeure all of Supplier’s obligations shall be
suspended. Should the period in which Supplier cannot fulfill its
obligations as a result of force majeure continue for longer than one
(1) calendar month, Riwal shall be entitled to terminate the Contract in
writing without there being an obligation to pay any compensation
whatsoever arising out of or in connection herewith.
19. Termination and suspension
19.1. Unless otherwise determined in these General Terms and
Conditions, in the event that Supplier fails to perform any of its
obligations under the Contract, Riwal shall send Supplier a notice of
default, allowing the Supplier a reasonable period for compliance.
19.2. In the event i) Supplier fails to perform within the reasonable
period as set out in the notice of default, ii) Supplier fails to meet a
deadline or performance is temporarily or permanently impossible, iii)
Supplier can be reasonably assumed not to perform the Contract
properly or at the agreed delivery date or time for performance, iv)
Supplier is declared bankrupt, granted a suspension of payment, or
goes into liquidation, v) Supplier is repossessed, closed down or wound
up or presented with a petition thereof, vi) of the application for an
order or application for the appointment of a receiver (including an
administrative receiver), administrator, trustee or similar officer in
respect of the Supplier, vii) a receiver, administrative receiver,
administrator or similar office is appointed over all or any part of the
assets or undertaking of the Supplier, viii) the Supplier makes a
composition with its creditors generally or an assignment for the
benefit of its creditors or other similar arrangement, ix) Supplier
ceases, or threatens to cease, to carry on business, Riwal shall,
without prejudice to any of its other rights, be entitled to:
19.2.1. wholly or partly terminate the Contract and/ or the Purchase
Order by notifying Supplier to that effect and without any further notice
of default being required and without any liability for Riwal arising out
of or related to this termination,
19.2.2. to suspend its (payment) obligations,
19.2.3. to oblige the Supplier to repeat the performance of the Contract
at the Supplier’s own expense;
19.2.4. to reverse the performance of the Contract at the Supplier’s
expense and risk, and/or
19.2.5. to allow Riwal or a third party nominated by Riwal to repeat or
reverse the performance of the Contract at the Supplier’s expense and
risk.
19.3. Riwal may, without prejudice to any of its other rights arising
hereunder or under the terms of any Contract, upon giving written
notice, terminate the Contract (at Riwal’s discretion) with immediate
effect if one of the businesses that compete with Riwal has (directly or
indirectly) become holder of more than 50 (fifty) percent of the
shares in Supplier’s share capital or is capable (directly or indirectly,
whether or not pursuant to an agreement with other persons or
entities with voting rights) of exercising more than the
aforementioned percentage of the voting rights in the general
meeting of Supplier.
19.4. In the event of termination of the Contract, Riwal shall be
entitled to reclaim from the Supplier all payments it has made to the
Supplier as having been unduly paid. Insofar as the performance
provided by Supplier at the moment of dissolution is not open to
repayment and if it otherwise complies with the Contract, the
Supplier shall be entitled to a payment, based on the value of the
performance to Riwal and determined in all reasonableness, less the
amount which Riwal can claim from the Supplier in respect to the
shortcoming and/or the termination. Insofar as repayment is possible,
Riwal shall be entitled, at its discretion, to retain the Contract which has
been performed in return for a payment as referred to above or to return
it to the Supplier at the Supplier’s expense and risk, such being without
prejudice to any exercise of the rights referred to in Section 7.
19.5. Should Riwal be the owner of the Products which it wishes to
return in accordance with Section 19.4, Riwal shall retain ownership
even after termination of the Contract whereby it acquired ownership,
such being within the limits set out in the applicable law, as security for
the payment of everything that it may be able to claim from the
Supplier. Should Riwal not be the owner of the Product, Riwal shall
acquire a right of pledge in respect thereof to serve as the same
security.
19.6. Upon expiry or termination of a Contract for any reason
whatsoever, the Supplier shall offer due assistance to enable Riwal or a
third party to continue the provision of the Services and return to Riwal
at its own expense all Items, materials, specifications any other
information relating to these Services in its possession. All claims from
Riwal on Supplier shall become immediately due and payable upon
the termination of a Contract.
19.7. It is expressly agreed that Riwal shall not be liable to pay any
severance payment or compensation of whatever nature to the Supplier
for loss of profit or loss of goodwill or for any other loss or damage
howsoever arising as a result of the expiry or termination, for whatever
reason, of a Contract.
20. Tax and social security
20.1. The Supplier is and shall remain responsible and liable for
fulfilling all of its tax and social security obligations and all of the tax
and social security obligations of its subcontractors. Supplier shall
indemnify Riwal against all claims in relation to these matters.
20.2. If the Supplier fails to pay, deduct or transfer VAT, other sales
taxes, wage tax, social security contributions or employee's insurance
contributions or fails to do so in due time, Riwal will be entitled to
terminate the Contract with immediate effect.
20.3. If the Supplier is a sole-trader or sole practitioner, he will at all
times have a valid Declaration of Independent Contractor Status
( Verklaring Arbeidsrelatie, VAR-WUO ) available and provide a copy
thereof to Riwal, or alternative in accordance with the Dutch Law
Deregulation
Assessment
of
Employment
relationship
(Wet
Deregulering Beoordeling Arbeidsrelatie).
20.4. Riwal shall at all times be entitled to request the Supplier to
open a blocked account ( G-rekening ) to allow Riwal to deduct the
taxes and social security contributions, as referred to in Clause 20.2,
from any amounts due to the Supplier and transfer these amounts to
the blocked account for payment to the tax authorities.
20.5. The Supplier shall impose on its subcontractors the same
obligations as those contained in this Section 20.
