1.1 These general conditions shall apply to any sale of goods and provision of service by iClean.
1.2 Applicability of any general conditions of buyer is expressly rejected.
1.3 No waiver, alteration or modification of these General Conditions shall be binding upon iClean unless made in writing and signed by a duly authorized representative of iClean.
Quotations and Formation of Contract
2.1 Unless otherwise expressly stated, any iClean quotations shall be non-binding and to be deemed to be an invitation to buyer to place an order only. A Contract between iClean and buyer shall come into existence if, and only if, iClean confirms an order in writing (“Order Confirmation”).
2.2 Promises, undertakings or representations by iClean employees, representatives and/or agents shall be binding only if confirmed in writing by a duly authorized representative of iClean.
Scope of Supply
3.1 iClean exclusively supplies the goods and/or provides the services expressly specified in the Order Confirmation. Unless agreed otherwise, items such as spare parts, tools and cables are excluded.
3.2 Additional goods or services necessary for the fulfillment of the order or requested by buyer may be charged separately by iClean as an addition to the contract price (“Price”).
3.3 Any specifications of or representation as to capacity, weights, output and other data (“Specifications”) stated in any quotation, Order Confirmation, technical document, catalogue, iClean’s website or the like, are indications and shall only apply as approximations.
3.4 iClean may, at any time, without prior notice, make minor changes to any Specification, provided that such changes do not materially affect the mechanical performance of goods supplied by iClean.
3.5 In the event that iClean is responsible for installation and/or commissioning of any equipment, it shall perform only such duties as are expressly stated in paragraph 11, Installation and Commissioning below.
4.1 Unless otherwise expressly stated, delivery schedules are approximate and shall not be fatal terms.
4.2 Delivery shall be made Ex Works Venray in accordance with Incoterms 2010. Risk shall pass to buyer on delivery.
4.3 iClean reserves the right to make delivery in parts and from multiple locations, including different countries.
4.4 The agreed delivery time commences only upon receipt by iClean of all necessary technical details and formalities as well as other details required for the performance, including receipt of down-payment if any.
4.5 If buyer fails to accept delivery when offered by iClean, iClean shall store the goods for the risk and account of buyer and the goods shall be deemed to have been delivered.
4.6 If applicable, iClean shall pack the goods at its discretion, provided such packaging withstands transportation and prevents damaging of the goods during transport.
4.7 If iClean is to provide services, the parties shall agree upon a date and/or schedule for the provision of such services. If the parties fail to agree such date and/or schedule, iClean shall reasonably decide all necessary particulars.
Prices and Payment
5.1 All quoted prices are based on current exchange rates, tariffs and costs of manufacture. Unless otherwise stated in the quotation, quoted prices are subject to change by iClean with or without notice until buyer’s acceptance. Prices are subject to correction for error.
5.2 Unless otherwise stated, all prices are based on delivery Ex Works Venray (Incoterms 2010) in EUR; excluding packaging, VAT, other taxes, insurance and duties. In case of doubts the price stated in the Order Confirmation shall be deemed to be agreed.
5.3 Payments under the contract, excluding advance payments, shall be received in the agreed currency within 30 (thirty) days of date of invoice submitted by iClean, without discount or set-off. Or otherwise written agreed. Payment of an invoice for advance payment shall be received within 7 (seven) days of date of invoice, without discount or set off.
5.4 In the event of late payment, buyer shall be in default without notice of default being required. Late payment shall be subject to interest at a rate of 8 (eight) percentage points above the ECB interest in force on the due date of payment. A delay in any payment of more than 6 (six) weeks may be treated by iClean is material breach of contract by buyer according to paragraph 16, Termination.
5.5 iClean shall be entitled to request appropriate securities for open payment under the contract. Failure of buyer to fulfill the request without undue delay, latest within 4 (four) weeks, shall constitute a material breach of contract by buyer according to paragraph 16, Termination.
6.1 Insofar as the law allows, iClean shall retain title to all goods delivered and/or to be delivered, until buyer has paid in full the Price. If applicable, buyer is obliged to collaborate with and support iClean in establishing any necessary security rights.
Intellectual Property and Confidentiality
7.1 Buyer shall treat as confidential all documents, information and Specifications received from iClean.
7.2 All intellectual property in goods delivered or services provided by iClean, shall remain with iClean or its subcontractors and/or vendors. Any grant or transfer of any intellectual property right, if agreed, shall be the subject of a separate intellectual property license.
7.3 iClean warrants that the design of the goods delivered under the contract do not infringe the intellectual property rights of any third party. A certain use or application of the goods is not warranted. If, however, such infringement is proved, iClean may at its discretion replace or modify infringing goods or, if not possible, take back infringing goods and reduce the Price accordingly. No further liability applies.
8.1 If during a period of 12 (twelve) months after delivery, a material defect in design, material or workmanship provably present at the date of delivery comes to light (“Defect”), iClean shall without undue delay and at its sole discretion repair, replace or otherwise make good such Defect.
8.2 For goods which are not manufactured by iClean, iClean is liable for Defects only to the extent the manufacturer of such good is liable for defects to iClean. Buyer shall inspect the goods at the earliest possible opportunity after delivery and shall notify iClean immediately of any evident Defect. Latent defects have to be notified to iClean without undue delay after discovery. Failure to conduct such inspection or give such notice, shall release iClean from any duty to make good such evident or latent defect.
8.3 iClean liability for Defects is subject to the correct installation, operation and maintenance of goods by buyer in accordance with installation instructions and operation manuals as supplied by iClean. iClean has no liability for normal wear and tear.
8.4 iClean accepts no liability for any Defect (a) in goods repaired by buyer or a third party without prior written permission from iClean; or in goods maintained by buyer with replacement parts not procured directly from iClean; or (c) caused by buyer or third parties.
8.5 Unless iClean decides that the alleged Defect shall be examined and/or made good in situ, buyer shall return to iClean any goods alleged to be defective, carriage and insurance paid. No goods may be returned unless iClean has expressly agreed on such return. In the event of examination in situ, if iClean rejects its liability for an alleged Defect, iClean may charge buyer all costs arising from the examination, including, but not limited to, travel, transport and accommodation costs.
8.6 Unless otherwise agreed, iClean’s making good of any Defects to be performed outside of regular business hours shall be invoiced separately to buyer at iClean’s standard rates and as an addition to the Price.
8.7 If continued operation of goods found, or alleged to be, defective could cause damage to any installation or equipment, iClean may order the immediate, orderly shutdown of such goods. iClean shall not be liable for any damages resulting from nonfulfillment of such order.
8.8 iClean’s making good of any Defect shall not extent the original warranty period on the goods, and iClean’s liability for any replacement part shall expire at the same date as the original warranty period.
8.9 iClean’s liability for Defects extends only to the original buyer and may not be transferred to any third party.
8.10 Unless otherwise expressly guaranteed, iClean shall not be liable for any Warranty of merchantability of the goods or fitness for particular purpose.
9.1 The liability stipulated in paragraph 8, Warranty, is iClean’s sole liability for Defects. It replaces any liability for defects or non-conformity or any other undertaking arising out of the applicable law. From trade customs, or from parties practice. In particular iClean shall not be liable for indirect or consequential loss or damage, including, but not limited to, loss or damage, to any product, feedstock, utilities or raw materials, loss of revenue, loss of profit, loss of production (including plant downtime or delays), loss of business, loss of contracts, contractual liability or liquidated damages payable by buyer to any third party or other financial loss, any costs or losses associated with resulting business changes (including recall costs for products of buyer), damage to any item of equipment or any works not supplied by iClean or to any other act, omission or failure on the part of iClean.
9.2 The limitation of liability provisions stipulated in paragraph 9.1 before do not apply in cases of intent or gross negligence of iClean.
9.3 Buyer shall compensate iClean for, and hold iClean harmless against, the financial result, including, but not limited to, costs, legal costs and/or award of damages, of any claim or legal action brought by any third party and arising either directly or indirectly from the use, storage or disposal of goods and/or implementation of services supplied by iClean.
Change of Contract and Delay
10.1 All Change orders shall be agreed in writing by an authorized representative of both parties. iClean has no obligation to accept any change requests by buyer. Payment for any change order work shall
be made within 30 (thirty) days of the commencement of such work. If no additional price is agreed, iClean’s list prices and iClean’s standard rates shall apply.
10.2 If iClean suffers delay and/or incurs additional costs as a result of any circumstance including, but not limited to, those mentioned in a. to f. below, iClean shall be entitled (a) to an appropriate extension of time and (b) to an appropriate addition to the Price. Any such addition to the Price shall include all additional related costs incurred by iClean plus an agreed margin. If no margin is agreed, a market standard margin applies.
a. Any delay, defect, inaccuracy and/or incompleteness in any data and/or materials or services supplied to iClean by or on behalf of buyer;
b. Any instructions of buyer, other than by reason of iClean’s default; c. Occurrence of Force Majeure according to paragraph 14, Force Majeure;
d. Site conditions that could not have been reasonably foreseen by iClean on the basis made available to iClean before the date of Order Confirmation;
e. Changes in law;
f. Failure by buyer to perform any of its obligations under the contract, including delayed payment according to paragraph 5, Prices and Payment.
10.3 iClean shall give notice to buyer of any event giving rise to a claim without undue delay.
Installation and Commissioning
11.1 This paragraph is additionally applicable where iClean is responsible for complete installation or for erection or commissioning.
11.2 iClean shall execute all installation work (“Works”) in accordance with the schedule, procedures and protocols stipulated in the Order Confirmation or, in their absence, in accordance with good engineering practice.
11.3 Buyer shall give access to the site on the date stated in the Order Confirmation or, if no date is stated, on a reasonable date. Buyer shall ensure that iClean staff can perform the Works without disturbance on consecutive working days, unless otherwise agreed upon.
11.4 Buyer shall make available to iClean on site and free of charge and at appropriate times:
All assistance, equipment, materials, scaffolding, lighting, electricity, water, fuel, oils, cleaning materials, detergents, and any and all other necessary and/or customary items in at least good quality including a reasonable storage room at least dry, properly locked and lighted;
Suitable facilities for iClean staff, including dining, medical, washing and toilet facilities and anything else required for adequate and safe working conditions during a ten-hour working day, including local travel, and a five-day working week;
Such other items, and/or at such other times, as iClean may reasonably require.
11.5 Unless otherwise agreed, if overtime and/or shift work is required, it shall be invoiced separately to buyer at iClean standard rates and as an addition to the Price. If, prior to installation, civil engineering or other works must be performed by buyer and if any such work is in delay, installation shall begin only after such work is satisfactory completed and appropriate adjustments to Price and schedules shall be made according to paragraph 10, Change of contract and Delay.
11.6 In case iClean is only responsible for supervision, iClean reserves the right to assess qualification of staff provided by buyer and, if necessary, to use iClean staff at buyer’s costs.
11.7 Any work performed by iClean being necessary for the fulfillment of the order or requested by buyer but not expressly include in its scope according to paragraph 3, Scope of Supply, shall be deemed a change under the provisions of paragraph 10, Change of Contract and Delay.
12.1 As soon as the Works are completed, the test on completion (“Tests”) as specified in the Order Confirmation shall be performed. If no such Tests are specified, iClean shall, at its sole discretion, determine appropriate Tests.
12.2 If during Test discrepancies with the Specifications are discovered which have no material effect on the functioning of the goods delivered for their intended purpose (“Non Material Discrepancies”), such discrepancies shall be remedied during the warranty period and shall not constitute a reason to refuse or delay taking-over.
12.3 As soon as Tests are satisfactorily completed, buyer shall immediately issue a signed certificate of taking-over, attaching if appropriate a list of any Non Material Discrepancies for correction during an appropriate a list of any Non Material Discrepancies for correction during an appropriate period of time. If buyer fails to issue such certificate then it shall be deemed to be issued at date of satisfactory completion of Test.
12.4 If buyer takes the goods delivered into beneficial or commercial use, such taking into use shall be deemed acceptance and taking-over of the goods and/or services delivered.
13.1 Where iClean provides installation or commissioning services, buyer shall take out a contractor’s all risks insurance policy to cover all iClean’s activities on site. Such policy shall name iClean as co-insured but allow the insurer no recourse against iClean. Prior to the commencement of such services, buyer shall furnish iClean with a copy of this policy and evidence that it is current.
14.1 iClean shall not be considered in default of any obligations under the contract if prevented or delayed by any cause that is beyond its reasonable control, including but not limited to war, hostilities, revolution, acts of terrorism, civil commotion, strike, lockout, epidemic, accident, fire, wind, flood, earthquake, embargoes, extensive military mobilizations, delays in customs clearance, export or import restrictions, inability to obtain materials from third party suppliers or other act of God or government (“Force Majeure”).
14.2 If a Force Majeure event delays or taking-over, then the delivery date or dat of taking-over shall be extended by an appropriate period.
14.3 If a Force Majeure prevents performance of duties under the contract for a period of 6 (six) months or longer, both parties may terminate the contract. With respect to any consequences resulting out of such termination paragraph 16, Termination, shall apply.
Changes in Law
15.1 If any change in any law or regulation having the force of law, including any change in the interpretation or application of such law or regulation, requires a modification of iClean’s scope, then such modification shall be subject to the provisions of paragraph 10, Change of Contract and Delay.
16.1 iClean may terminate the contract in whole or in part with immediate effect by written notification, without requirement for any notice of default or other legal action if:
Buyer fails to fulfill one or more of its material duties under the contract or arising from law; b) Buyer takes any step leading to or implying an intention to go into liquidation; c) Buyer is declared bankrupt or the conditions of bankruptcy set forth by law are fulfilled; or d) Control over buyer’s business is fundamentally changed.
16.2 iClean shall be entitled to immediate payment of all sums outstanding at the date of termination. iClean has to get saved expenditures accredited. Further, iClean may claim full compensation for additional costs arising from or in connection with the termination.
16.3 Any rights and duties under the contract which by their nature are intended to survive termination of the contract, shall survive termination under this paragraph.
Severability Clause, Applicable Law and Settlement of Disputes
17.1 If any provision of these General Conditions, or of the contract, is or becomes invalid, this shall have no effect on the remaining provisions. The parties shall immediately replace such invalid provision with a new, valid provision having as nearly as possible the intention of the provision replaced.
17.2 The contract and all questions as to its formation, validity or performance are governed exclusively by the law of the Netherlands, to the exclusion of the United Nations Convention on Contract for the International Sale of Goods.
17.3 Place of jurisdiction is the seat of iClean.