General sales and delivery conditions - MPM International Oil Company B.V.
1.1 These General Sales and Delivery Conditions (“Sales Conditions”) apply to all quotes, offers and contracts whereby MPM International Oil Company B.V. and/or companies affiliated therewith and/or joint ventures (hereafter jointly and individually called “MPM”) is/are involved or to which it/they is/are a party (while the relevant other party of MPM shall hereafter be called “the buyer”) and also cover all goods, services and advice (“products”) of MPM, and all activities related thereto, inter alia purchase and/or assignment. All offers, price specifications and quotes are without commitment. MPM can revoke/change its offers, price specification and quotes ten working days after acceptance and/or rectify possible mistakes in the offers.
1.2 All assignments are exclusively accepted and executed by MPM with the exclusion of Articles 7:404 of the Civil Code and 7:407 Paragraph 2 of the Civil Code.
1.3 Deviations from the Sales Conditions are only valid if they have been explicitly agreed in writing. Deviations shall then only apply in respect of those agreements whereby this deviation is explicitly stated to apply in writing.
1.4 If these Sales Conditions apply once, then they shall also apply to new agreements between the parties, unless this is explicitly excluded, including both verbal and written agreements.
1.5 Any general conditions of the buyer are explicitly rejected. If and insofar as the parties have explicitly agreed that the buyer’s conditions also apply, the Sales Conditions shall prevail insofar as not explicitly agreed otherwise in writing.
2.1 Unless explicitly otherwise agreed in writing, the agreed quantity shall be taken in approximately equal monthly (estimated) quantities. MPM is not obliged to deliver more or less over any contract month than such monthly (estimated) quantity with a maximum deviation of 10%. If the delivery can only be effected in (part-) deliveries which are smaller than a minimum quantity to be by determined MPM International Oil Company B.V. from time to time, or deliveries which are to be urgently effected, MPM shall be entitled to charge the buyer a supplement.
2.2 MPM shall endeavour to deliver “MPM International Oil Company B.V.-branded” products if the delivery of “MPM International Oil Company B.V.-branded” products has been agreed in writing. However, MPM cannot in such case at any time decide for whatever reason – without prior consultation with the buyer – not to deliver “MPM International Oil Company B.V-branded” products to the buyer, whereby these products must be of the quality common in the industry. In such case the buyer is not entitled to compensation in whatever form (including bonuses or discounts).
3.1 Unless explicitly otherwise agreed in writing, the place of delivery/completion shall be the place of loading of the relevant means of transportation.
3.2 Delivery paid on shore or to a specified address shall in general be deemed effected by delivery to storage facilities which the buyer has specified in writing, or by delivery to a place in the vicinity which is accessible without problem for the relevant means of transportation. If in MPM’s opinion such delivery cannot be effected without objection and/or by the transporter without outside help in a normal manner, MPM shall be free not to effect delivery, without being bound to pay any compensation.
3.3 All risks connected with products, including the risk of loss or damage pass to the buyer upon delivery, or at the time that MPM has informed the buyer that the relevant products are being held at the buyer’s disposition.
3.4 MPM shall, inter alia, not be obliged to effect unloading, if the buyer - in MPM’s opinion - does not see to the presence of a safe, efficient and adequate unloading possibility in time in such sense that unloading can be effected adequately, without delay, efficiently and in conformity with MPM’s safety regulations and any statutory regulations. The buyer guarantees that the (storage) facilities for products like tanks and equipment comply with all statutory regulations and furthermore are safe and properly maintained. The buyer shall always use the products properly and without mixing them for the purposes for which they are reasonably intended.
3.5 Without prejudice to the provisions of Clause 4 below, the buyer guarantees that to prevent the overflow of (storage) facilities, the indications relating to the maximum contents of the liquid level of the (storage) facilities, and the nature of the product present therein are correct. Damage as a result of an inaccurate specification, the lack of or non (proper) functioning of measuring instruments, improper (storage) facilities or any other cause, is at the buyer’s expense and risk, including the loss of delivered products. The buyer indemnifies MPM against all claims of third parties as a result of the non-performance of its obligations under this clause.
3.6 If delivery is delayed or prevented for any reason whatsoever on the part of the buyer, MPM is entitled to charge the buyer for the costs ensuing therefrom.
3.7 Time is not of the essence with regard to the delivery time set out in offers and/or contracts, unless such explicitly appears in writing from these documents and late delivery shall never be grounds for the buyer to suspend and/or fail to perform the obligations ensuing for the buyer from the contract.
4. Measurements / weighings / analyses / administration
Measurements and weighings by MPM and weight specifications and analyses furnished by MPM, and MPM’s administration thereof shall be binding on the parties and decisive for the quantities and quality delivered.
If the transport makes use of a tanker, the buyer is bound to immediately enable MPM or its transporter / carrier to start unloading and to ensure that unloading shall be completed safely, adequately and without disruptions. In the event of delay the buyer shall immediately owe MPM a penalty of € 750, which cannot be mitigated, for every day or part thereof that the unloading is not effected, or is not (fully) completed, without prejudice to MPM’s right to demand full compensation. “Immediately enable” means upon arrival enabling the tanker to start the unloading work, whereby per vehicle there is a time limit of two hours after arrival. Thereafter the penalty clause set out in this clause shall come into effect.
6. Transport, storage and use
With regard to the transport, the storage, the use or the application of the delivered products MPM assumes there will be normal circumstances and the buyer’s agents shall be suitably skilled. The buyer must give MPM timely written notice of any deviating situations. MPM is not liable for the consequences of transport, storage, use or application by agents who are not suitably skilled or for non-normal circumstances. Nor is MPM liable when any advice given by MPM - general and/or specific - with regard to the transport, storage, use or application of the delivered products by the buyer or third parties have not, in MPM’s opinion, been fully complied with. The buyer indemnifies MPM against liability vis-à-vis third parties for damage ensuing from circumstances as referred to in this clause.
MPM shall not take back packing; recycling/destruction is at the buyer’s expense and risk.
8.1 Unless explicitly otherwise agreed in writing, payments of the buyer to MPM must be effected at delivery latest, without discount, set-off and/or right to suspension.
8.2 Unless explicitly otherwise agreed in writing, costs and fees are not included in the agreed price and the buyer must pay these separately.
8.3 If the buyer continues to default on the prompt and full payment of the amount owing according to MPM’s administration after expiry of the term set out in the first paragraph, this shall entail, without prejudice to any other rights to which MPM is entitled:
a. all other claims in the buyer’s name outstanding at MPM’s shall become immediately due;
b. MPM shall have the right to charge interest for late payment over the remaining amount as of the date of delivery of 1% per month counted as of the due date up to and including the day of payment, whereby part of a month shall be counted as a whole month;
c. MPM has the right without further notice of default to suspend the performance of any contract with the buyer and/or to dissolve any contract with the buyer without being bound to pay any compensation;
d. All extrajudicial (collection) costs (including the costs incurred for the preparation and sending reminders, conducting settlement negotiations and other operations in preparation for a possible judicial procedure) and court costs will be paid by buyer. The extrajudicial collection costs shall be calculated on the basis of the report for Work II plus € 25.00 registration.
9. Price-changing circumstances
In the event of price-changing circumstances, such as changes effected by a public authority in respect of taxes, duties, charges and/or other collective payments/levies over the product to be delivered, changes in (global) market prices and/or (sea) freight prices, MPM has the right to increase or decrease the price accordingly. If the officially determined value of the Euro (€) changes compared to other currencies, MPM can revise the price accordingly.
10. Intellectual and industrial property
10.1 All (user) rights of intellectual or industrial property in respect of the products or goods which are connected therewith shall exclusively belong to MPM. Unless explicitly otherwise agreed in writing, the buyer shall not acquire a user right or license in respect thereof.
10.2 The buyer is not permitted to remove and/or change any indication regarding the (intellectual and/or industrial) property of MPM.
In the event of resale/re-delivery to parties other than end users or to parties other than resellers acknowledged by MPM, the buyer shall always offer and sell the products under the brands and indications determined by MPM, pure and unmixed, without prejudice to the provisions of Clause 10.1 above. The foregoing shall only be different if there has been intent on the part of MPM, or of its (non-)subordinate agents, which intent must be clearly demonstrated by the buyer and/or third parties.
12.1 MPM is not liable for direct or indirect damage, including consequential damage and loss of profit, occurring at the buyer’s or third parties’, which the buyer or third parties suffer due to shortcomings and/or any actions and/or omissions of MPM and/or its (non-)subordinated agents in connection with the performance of any contract made between the parties or in the framework of extra-contractual relationships.
12.2 The buyer is bound to indemnify MPM and keep it indemnified against all claims of third parties ensuing from or connected with the contract between MPM and the buyer and any extra-contractual relationships, and in specific if the damage is the result of the furnishing of inaccurate and/or incomplete details and/or information by the buyer.
12.3 If MPM, to refute its liability for the conduct of a (non-)subordinate agent engaged by it, can derive a defence from the Sales Conditions, then the (non-)subordinate agent, if the buyer brings a claim against such agent on the basis of said conduct, can invoke such defence too as if it were a party to these Conditions.
13.1 The buyer is obliged to inspect the goods delivered immediately upon or after delivery. The buyer must lodge complaints regarding the delivery, including, inter alia, complaints on deviations in the quantity and/or quality of the goods delivered, immediately but at latest within 5 working days after delivery or completion in writing with MPM; failure to do so entails a loss of all of the buyer’s claims in this respect.
13.2 The buyer must lodge complaints regarding an invoice sent by MPM in writing 5 working days after the invoice date; failure to do so entails a loss of all of the buyer’s claims in this respect.
13.3 MPM does not have to accept return shipments, unless MPM has granted prior written consent therefore.
14. Retention of title and pledge
14.1 Without prejudice to the provisions of Clause 3.3 above, MPM remains the owner of the products delivered or still to be delivered as long as the buyer has not effected (part-)performance under this contract, these Conditions or any other contract with MPM and/or as long as the buyer has not performed other extra-contractual obligations vis-à-vis MPM. The buyer shall always immediately grant MPM access to retrieve delivered products itself at the buyer’s expense and risk.
14.2 On the suspensive condition of loss of and/or nullity or a loss of validity of the retention of title referred to in the preceding paragraph, the buyer hereby grants MPM a pledge upon delivery in respect of all products delivered and to be delivered to the buyer. This pledge serves as security for payment of all current and future debts of the buyer to MPM. The buyer is hereby deemed to have granted MPM an irrevocable and unconditional authority and shall cooperate in making a written record and registration of the pledge.
14.3 The buyer is prohibited from pledging the goods in whole or in part to third parties or from transferring the title thereto until full payment has been effected.
MPM is at all times entitled to transfer its rights and/or obligations vis-à-vis the buyer in whole or in part to another, who shall then take MPM’s place as contracting party and shall be entitled to, e.g., replace the brands under which MPM might have sold the products, in whole or in part with other brands or otherwise change the way in which products are sold or change the related contracts. The buyer hereby grants MPM its irrevocable and unconditional consent for such takeover of the contract. The contract takeover shall be effected as soon as MPM, partly on behalf of the party which takes over the relevant rights and obligations, has given the buyer written notice thereof.
If MPM believes that (financial) circumstances of the buyer give good grounds for assuming that the buyer will not (be able to) perform its obligations under the contract (in full), the buyer is obliged to give security which is satisfactory to MPM, to pay an advance to be determined by MPM and/or place goods under the control of MPM for the performance of all the buyer’s obligations under the contract. In the event of failure to do so MPM is entitled to suspend the performance of any contract with the buyer in whole or in part and/or dissolve any contract in whole or in part, without being bound to pay any compensation.
17.1 MPM can, without the need for notice of default or judicial intervention, effect termination of the contract with immediate effect by written notice, without MPM being bound to pay any compensation, without prejudice to any obligation to pay compensation on the part of the buyer, in, inter alia, the following cases, in respect of which the buyer – insofar as they apply to it – must immediately give MPM written notice:
1. attachment of the buyer’s property;
2. loss on the part of the buyer of a permit to run its business;
3. non-performance by the buyer of its payment obligations or circumstances which (could) jeopardise its creditworthiness;
4. the buyer makes false or incomplete statements to MPM;
5. any action or any omission on the part of the buyer which is con trary to the provisions of the Sales Conditions or the underlying contract and/or any other contract between the buyer and MPM;
6. termination or such change in the legal relationships between MPM and its suppliers which makes it impossible for MPM to effect further deliveries to the buyer, or limits or complicates such to a significant extent;
7. if the buyer petitions for or is granted a moratorium, provisional or otherwise, is declared bankrupt, or a petition has been presented for the buyer’s bankruptcy, the buyer petitions for or is granted debt rescheduling or otherwise becomes insolvent, sells its business, transfers its business in whatever sense, ceases or liquidates its business to a great extent, or loses the loss of control over its business.
8.1 other circumstances pursuant to which it would be unreasonable to demand of MPM that the contract with the buyer remains in effect.
8.2 termination of the contract in accordance with the preceding provisions is without prejudice to any right of performance vis-à-vis MPM of existing obligations or any claim to compensation on the part of MPM.
18. Force Majeur
18.1 MPM is not liable for the non-performance, late performance or improper performance of its obligations, if, insofar as and for as long as the performance is delayed, impeded or hindered due to force majeure, in whole or in part, temporarily or permanently, in, inter alia, the following cases:
- the performance of a regulation or request of a government institution, port, local or other authority or any body or person which has indicated that it is or is acting on behalf of such institution or authority;
- hindrances, restrictions or impediments relating to the extraction, production and/or supply (including replacement of supply lines) and/or the import of raw and auxiliary materials for the products sold and/or relating to the manufacture of the products and/or the transport thereof to the place of delivery (the foregoing also includes the non-performance of supply companies);
- facts and/or circumstances which MPM could not foresee or need not reasonably have foreseen which are of such influence that MPM, had it known of such facts and/or circumstances, would not have made the contract of delivery or would have made such contract on different conditions.
18.2 The circumstances referred to under Clause 19.1 include, but is not limited to: war, mobilisation, riot, boycott, destruction, epidemics, natural disasters, weather circumstances, strike, fire, the forced cessation of the exploitation of wells, refineries and/or installations, traffic jams and/or transport delays, computer breakdowns, disruption of electricity or gas supply, price increases which cannot be passed on and furthermore all other circumstances which have a disruptive effect on the regular course of MPM ’s business or that of its supply companies, to be evaluated by MPM.
18.3 If a situation arises as referred to in Clause 19.1 or 19.2, MPM shall inform the buyer – if possible and desirable for MPM – whether and to what extent and on what conditions it shall continue the deliveries in whole or in part. MPM shall never be bound to cover any shortages on the part of suppliers and shall furthermore be entitled to dissolve the contract or suspend or limit the deliveries.
19. FOB/FCA deliveries
19.1 In the event of FOB or FCA deliveries, for the application of the VAT exemption in connection with intercommunity deliveries, the buyer must confirm to MPM in writing at latest at the time of delivery that the products shall be transported to another EC member state by or on behalf of the buyer, without prejudice to MPM’s right to demand further information or original documents before or after applying this rate. If the buyer does not succeed in presenting the further information or original documents, MPM has the right to charge the applicable VAT to the buyer at any time, together with default interest and any VAT-related fines imposed on MPM.
19.2 With regard to the Single Administrative Document (‘SAD’) relating to excise goods, the buyer must ensure that prior to the physical transport of the goods, MPM is given written notice of the names and signatures of the authorised persons of the receiving bonded warehouse, registered or unregistered company, or, if the dispatching bonded warehouse keeper is a third party, to such third party, and that changes are passed on in time. The buyer must ensure that the SAD has been returned to the dispatching bonded warehouse keeper within 14 working days after the date of dispatch. In the event of FOB or FCA deliveries the buyer is liable for the taxes and levies, penalties, interest and additional costs which are the result of breaches or irregularities during the transport or shortages noted upon receipt/intake?, as well as irregularities connected with the SAD, including inaccurate or incomplete signing, late receipt or non-receipt by the dispatching bonded warehouse keeper.
19.3 If and insofar as MPM issues or does not issue customs or excise documents on behalf of the buyer in the name of MPM for the products to be delivered, the buyer shall immediately, without reservation and right of set-off and/or suspension, compensate all loss which can be the result of the use of these documents, regardless of whether there has been guilt or culpability on the part of the buyer, personnel of the buyer or third parties engaged by the buyer. If and as soon as the buyer resells and/or redelivers the products without paying levies or taxes, to rectify MPM’s customs or excess documents, the buyer shall have more customs or excise documents drawn up in order to terminate MPM’s liability to the revenue service.
MPM is entitled to set off all debts which it might owe to the buyer at any time against all claims which MPM has on the buyer at such time, and MPM has the right to set off its claims against said debts. The foregoing also applies in respect of a claim of MPM on the buyer which is not yet due and/or which is conditional, under any heading whatsoever.
21. Applicable law and disputes
21.1 Unless otherwise agreed in writing, Netherlands law applies to all legal relationships with MPM as referred to in the General Sales Conditions.
21.2 Under Netherlands law the District Court of Rotterdam has jurisdiction to adjudicate disputes, without prejudice to MPM’s right to opt to bring the dispute before the court of the buyer’s domicile or another district court, at MPM’s election, and without prejudice to the mandatory law provisions regarding the jurisdiction of another court.
If any provision of these Sales Conditions, for any reason whatsoever, is invalid in whole or in part, the agreement and these Conditions shall remain in full effect for the rest, and as far as the parties are concerned, a new valid provision shall be agreed which approximates the void provision as much as possible. MPM is entitled to change the Sales Conditions. This change shall apply as of the time that MPM has informed the buyer in this respect.
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