General terms and conditions for the supply of goods and the use of services
1. APPLICABLE CONDITIONS DiManEx B.V., hereinafter referred to as DiManEx, issues quotations and enters agreements for the supply of goods, the use of standard (access to the) software and the performance of additional services, exclusively based on the General Terms of Delivery set out below. Any deviations or addenda thereto require DiManEx’ express written consent. Should any provision in the agreement be invalid, the other provisions remain in force without prejudice, unless the agreement then becomes obviously unreasonable to uphold.
2. SPECIAL PROVISIONS FOR THE USE OF STANDARD (ACCESS TO THE) SOFTWARE AND FOR ADDITIONAL SERVICES If DiManEx provides additive manufacturing embedded digital supply chain services, the Special Provisions for the use of additive manufacturing embedded digital supply chain services shall also apply in addition to these General Provisions. If DiManEx renders additional services in addition to the supply of goods by additive manufacturing embedded digital supply chain services, DiManEx’ Special Provisions for Additional Services such as installation, commissioning, assembly, maintenance, review and repairs as well as consulting, training and support also apply in addition. In the event of conflict, the Special Provisions take precedence over the General Provisions.
3. QUOTATION; CONCLUSION OF AGREEMENT Quotations issued by DiManEx are without prejudice and subject to confirmation, and an agreement binding on DiManEx shall only come into effect after DiManEx issues written confirmation of an order or order confirmation from the Customer. The illustrations, drawings, dimensions, weight specifications, etc. pertaining to a quotation shall be regarded as an estimate unless DiManEx has expressly stated that they are to be regarded as an accurate specification.
4. PRICES All prices specified by DiManEx are exclusive of the VAT payable in the context of the agreement. This is charged separately. The price of the goods to be supplied excludes the services to be rendered and is delivered carriage paid to delivery address. If the cost price of goods ordered, including the costs of wages and materials, has escalated between the time the agreement was concluded and the date of delivery, DiManEx shall be entitled to increase the prices accordingly.
5. PAYMENTS Payments are due no more than 30 calendar days after the invoice date. If DiManEx has reason to believe that the Customer may not comply with its payment obligations, such as in the event of a suspension of payments, bankruptcy or an application for bankruptcy on the part of the Customer, seizure, shut-down or liquidation of the company, previous payments not paid on time, etc., DiManEx may require full payment in cash before or on delivery. In the event of late payment, the Customer shall be liable to pay interest on the outstanding amount at the statutory rate without notice. Interest shall also be charged on any interest due but not paid after one year. Any collection costs incurred by DiManEx shall also be borne by the Customer. In the event of late payment, including the failure to comply with the above mentioned request for cash payment in advance or on delivery, DiManEx shall be entitled to suspend performance under the agreement until full payment is received and, if the Customer fails to pay in full after a written notice has been sent, to terminate all or part of the agreement. The above does not affect DiManEx’ right to compensation. Amounts may not be offset against claims against DiManEx. In the case of bankruptcy, suspension of payments or seizure on the part of the Customer, all amounts owed by the Customer to DiManEx shall be due and payable immediately and in full, and DiManEx may offset any claims immediately.
6. DELIVERY; ACCEPTANCE If DiManEx uses Incoterms, the version in force on the date the quotation is issued applies. The delivery period starts on the day on which the agreement comes into force or on the day on which an agreed advance payment is paid in full and all information to be provided by the Customer which is relevant to the execution of the agreement is received, whichever is the later. DiManEx shall only be deemed to be in default for failing to meet a deadline if it fails to comply with all or part of its obligations towards its Customer because of circumstances that are attributable to it and after the expiry of a reasonable additional period of time the Customer has granted in writing. In that case, the Customer shall only be entitled to terminate the agreement if it cannot reasonably be expected to uphold it. DiManEx is authorized to make partial deliveries. After Order Confirmation date the Customer is obliged to accept the goods or services. A defect such as the non-availability or partial availability of the appropriate documentation that does not seriously impede the use of the goods delivered or services rendered shall neither constitute grounds to claim failure to meet a deadline nor to refuse to accept or pay for the goods or services. This shall not affect the Customer’s right to have the shortcoming rectified as soon as possible.
7. TRANSFER OF RISK AND OWNERSHIP The risk for goods being supplied always passes permanently to the Customer at the time of arrival at the place of delivery. Title to goods supplied only passes to the Customer once the Customer has paid all amounts owing to DiManEx in connection with the supply of these goods as well as other goods supplied by DiManEx previously or subsequently, including the related services, interest and costs. In the event of late payment, DiManEx shall be entitled to repossess or arrange for the return of any goods delivered without further notice of default and without legal intervention and the Customer authorizes DiManEx in advance to access all sites in and around the Customer’s business to this end. Any cost for DiManEx related to repossession or arrangement for the return of any goods delivered are for Customer. The Customer is entitled to use any goods subject to retention of title as part of its normal business activities. However, this does not include encumbering such goods with rights or security interests.
8. NON-ATTRIBUTABLE FAILURE; FORCE MAJEURE Failure to comply with an obligation shall not be regarded as attributable if it is the result of or is related to a circumstance which is beyond the control of the party concerned, whether it could have been foreseen or not. Such circumstances include but are not restricted to: war or a similar circumstance, mobilization, riots, sabotage, terrorism, threats of terrorism, fire, lightning strike, implosion, explosion or escape of dangerous gases or substances, natural disasters, extreme weather conditions, strikes, sit-ins, boycotts or blockades and measures taken by a domestic or foreign Government such as the imposition of import, export, delivery or production bans. If a party fails to comply with the agreement, without this being attributable to the party concerned, and if it remains impossible to comply with the agreement on a permanent basis, the agreement may be terminated with immediate effect by either of the parties. If compliance is not permanently impossible, the delivery period will be extended with the period during which compliance was impossible, including time required for resumption, and the agreement may only be terminated by either of the parties after an extension period of at least seventy-five consecutive calendar days. If DiManEx incurs extra costs in complying with the agreement because of circumstances not attributable to DiManEx, DiManEx shall be entitled to charge these costs on to the Customer in all reasonableness. In the case of Force Majeure, the Party invoking Force Majeure must take all measures reasonably necessary or required to remedy the situation as soon as possible. If necessary, the Parties will jointly investigate the measures to be taken to mitigate the effects of Force Majeure. In the event a Party wishes to invoke Force Majeure, this Party must orally notify the other Party as soon as possible, yet in any case no later than 48 hours after the discovery of the circumstance that has resulted in Force Majeure. This oral notification must be followed by a written notification within 7 days after the discovery by the Party that is invoking Force Majeure to the other Party.
9. DEFECTS IN GOODS AND SERVICES RENDERED If goods supplied or services rendered display a defect, the Customer shall be entitled to require DiManEx to rectify the defect free of charge, either by means of repair, replacement or re-execution, at DiManEx’ discretion, provided that the following conditions are met:
Costs incurred for disassembly and assembly of the goods supplied is for the Customer’s account. If the repair is not performed on the original site of delivery DiManEx may additionally charge transport costs and travel and accommodation expenses. DiManEx may request that an item needing repair be returned to its address or to an address, specified by it free of charge. DiManEx is entitled to rectify defects on its own initiative. Any components that become available because of a replacement shall remain/become DiManEx’ property. The above mentioned obligation to rectify defects also applies to defects in repairs for a period of three months after the repair is carried out. Any repair or replacement of goods shall not extend the original warranty period. An agreement may only be completely or partially terminated because of a defect insofar as the Customer cannot reasonably be expected to uphold it.
10. LIMITATION OF LIABILITY The liability of DiManEx to Customer that is associated with, arises from or is the result of the performance of any Service or delivered goods by DiManEx under this Agreement is limited to the stipulations in this regard as provided for in this Agreement.
DiManEx warrants that the Approved Parts are in conformity with the Approved Part File as agreed upon and signed off by Customer in accordance with Clause 7 hereof. In the event of a warranty claim, Customer shall within 48 hours notify DiManEx, specifying the nature of the claim by means of documentation and/or photos. In case of a justified warranty claim, DiManEx shall repair or replace the relevant part, or reimburse the relevant Print per Part Fee, at its sole discretion.
Customer’s exclusive remedy and DiManEx’s total liability to Customer for breach of the warranty shall be the following: any liability of DiManEx to Customer pursuant to this Agreement is, regardless of the legal grounds, in any event limited to a maximum amount of EUR 2,500,000.- (two million five hundred thousand euros) per event, with a maximum of EUR 5,000,000.- (five million euros) per calendar year.
Regardless of the legal grounds, DiManEx is not liable for consequential losses, including but not limited to loss of profit, loss of sales, losses suffered and costs incurred, as well as any lost orders or lost savings, loss of data, investments not recovered, late deliveries, costs of executing product recalls, damage through production or business interruptions or standstills. In addition, in no event shall DiManEx be liable for any special, incidental, indirect, punitive or exemplary damages, however caused and on any theory of liability.
The cumulative liability of DiManEx about all liabilities regarding the entire legal relationship with Customer will never exceed an amount equal to EUR 5,000,000.- (five million euros) during the term of this Agreement or at any time thereafter.
The liability limitations do not affect DiManEx’s liability on the grounds of provisions of mandatory rules of law. DiManEx will not invoke the liability limitations herein if and to the extent there is intent or willful recklessness on the part of DiManEx and/or the supervisory employees on DiManEx’s management staff.
Customer is required to apply standard general terms and conditions of sale and delivery to its customers, which, at any rate, contain appropriate complaints and defects clauses and sufficient liability limitations. Customer is liable to DiManEx and will indemnify and hold harmless DiManEx against any direct entitlements from its customers. Customer is required to declare its general terms and conditions applicable to its legal relationship with each of its customers and to always invoke its rights under these general terms and conditions.
The Party who suffered damages shall notify the other Party in writing of the damage as soon as possible, but in any event within 48 hours after the discovery of that damage. Damage that has not been reported to the other Party within this period shall not be compensated.
Each Party will indemnify the other Party against any claims made by the tax authorities or third parties resulting from non-compliance by it with the applicable tax laws and regulations in the countries where it has provided (part of) its services or sold (part of) its products.
11. INTELLECTUAL PROPERTY RIGHTS DiManEx reserves all rights, including that of intellectual property rights, relating to the information made available to a Customer in the context of performing an agreement, for example in the form of drawings, diagrams, designs, files, calculations, descriptions, (access to the) software or relevant documentation. The information may not be made available to third parties without explicit permission from DiManEx, and may only be used within the framework of creating and executing the agreement by the Customer. Should no agreement come into existence the Customer shall immediately return the information carriers, including the quotation, and any copies thereof to DiManEx when first requested to do so.
The Intellectual Property Rights (IPR) of all data and designs directly belonging to the by DiManEx provided goods shall always remain with the entity having created and owning the relevant data and designs.
As far as relevant and necessary Customer shall procure from the entity having the IPR of the relevant data and designs the right, and shall in turn grant DiManEx such right, to create a printable design file in any printable format of parts to be printed and to include the printable design file in its printable design file database.
12. INDEMNIFICATION Customer will defend, indemnify and hold harmless DiManEx from and against all claims, demands, libilities, costs, losses, damages, judgements and expenses (including reasonable legal fees) arising out or in connection with any third-party claim alleging any breach of such party’s intellectual property rights or patent(s) based upon any information, including but not limited to drawings, CAD files, exemplars, or samples, provided by Customer to DiManEx or out of the negligence or lack of care by Customer or Customer’s Customers, agents, employees or invitees involving the use of the Goods. DiManEx agrees that Customer and/or the entity having the IPR of the relevant data and designs shall have sole and exclusive control over the defense and settlement of any such third-party claim. However, Customer shall not agree to any settlement or judgement that adversely affects DiManEx’s interest without prior written consent of DiManEx. DiManEx shall provide all information and assistance reasonable required by Customer concerning the third party claim or action.
13. DEFAULT In the case of default or breach by Customer in the performance of any or all the provisions of this agreement, DiManEx may cancel any outstanding order from Customer and declare all obligations immediately due and payable, and shall in addition have all remedies afforded by law or equity. Customer shall in addition, be liable for DiManEx’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses. All unpaid obligations shall bear interest at the contract rate provided under terms of payment above.
14. DELAY If Customer requests deferral of deliveries, DiManEx’s agreement to defer delivery shall not excuse Customer from its obligation to pay for the goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these terms and conditions. In addition to adhering to the original payment schedule, Customer shall pay such storage charges as DiManEx may assess for storing the goods awaiting delivery. If Customer requests deferral prior to commencement of production, DiManEx may require progress payments about expenses for materials and services incurred by DiManEx in anticipation of production.
15. RESALE/EXPORT Customer acknowledges, represents and warrants that it currently complies with, and always shall comply with, and shall not act to contravene, relevant laws, codes, and regulations applicable to the purchase and sale of Goods and Services under these terms and conditions.
16. APPLICABLE LAW, DISPUTES Dutch law, except for the Vienna Sales Convention (CISG), shall govern agreements between DiManEx and the Customer. The competent court of Utrecht shall have sole jurisdiction over disputes between the Customer and DiManEx.