Article 1. Definitions
1.1. MIRON: The private company with limited liability MIRON Violetglass B.V., with its registered offices in Hoogeveen, filed in the Commercial Register of the Chamber of Commerce for the Northern Netherlands under number 04032323;
1.2. The Other Party: Any party which has or will have a contractual relationship of any nature with MIRON.
Article 2. Formation of a contract and amendments
2.1. All quotations issued by MIRON are free of obligation, even if a deadline for acceptance is stipulated.
2.2. MIRON shall be entitled at all times to revoke the offer or quotation until shortly after its acceptance.
2.3. MIRON shall not be obliged to execute any accepted quotations if they are based on what are manifestly writing errors.
2.4. Acceptance by the Other Party of an offer of MIRON, stipulating the applicability of the Other Party’s general (purchasing) conditions (whether or not to the exclusion of MIRON’s general conditions) shall not have any effect insofar as it involves the applicability of the Other Party’s conditions and/or the exclusion of MIRON’s conditions. Article 19 of the Vienna Sales Convention (CISG) shall not apply. The provisions of the following clause shall remain fully applicable.
2.5. The general terms and conditions (of purchasing) of the Other Party are expressly rejected by MIRON.
2.6. These general terms and conditions apply to all current and future legal relationships between MIRON and the Other Party.
2.7. Insofar as the agreement between MIRON and the Other Party deviates from the provisions of these general terms and conditions, the content of the agreement shall take precedence.
2.8. Any amendments to the agreement (including the general terms and conditions) between parties can be substantiated only by written documents. Any deviating stipulations shall apply only to the agreement for which stipulations have been formulated.
2.9. Either party shall pay its own costs incurred during the negotiations and preparations leading to the agreement.
2.10. Any amendments to the order’s composition shall lead to amendments to the delivery term. If the Other Party amends its order, it shall automatically accept the change to the delivery time.
Article 3. Delivery and risk
3.1. The products shall be delivered Ex-works (EXW) as specified in Incoterms (2010) from the address Stephensonstraat 57 7903 AS Hoogeveen, The Netherlands unless a stipulation to the contrary is made or included in MIRON’s order confirmation. The Other Party has an acceptance obligation.
3.2. Notwithstanding the provisions of the previous clause of this article, MIRON and the Other Party can agree that MIRON arranges transport. In that case too, the Other Party shall fully bear the risk of storage, loading, transport and unloading.
3.3. If it has been agreed that MIRON is responsible for transport and the Other Party requires MIRON to insure the products during transport or has any other requirements regarding the transport, it must agree on such requirements with MIRON in writing. Insurance shall be taken out at the Other Party’s expense and risk.
3.4. If the Other Party wishes to insure the products, MIRON shall provide the Other Party with all the details necessary to effect transport insurance immediately upon request.
3.5. If it has been agreed that MIRON is responsible for transport, the Other Party shall provide MIRON with the details necessary for transport, including but not limited to the correct Customs documents. The Other Party shall bear the risk regarding the completeness and/or correctness of the details. Any delay in the delivery time due to a delay at Customs, whether or not this is due to the incomplete or incorrect provision of details by the Other Party, shall be at the Other Party’s expense and risk.
3.6. If products are not accepted by the Other Party due to force majeure or due to its failure to comply with its acceptance obligation, or if they cannot be transported to their destination, MIRON shall be entitled to store these products at the buyer’s expense and risk, and to require payment without the buyer being entitled to suspend payment.
3.7. If the Other Party fails to meet its acceptance obligation, MIRON shall be entitled to sell the products following expiry of a period of 4 weeks after the products should have been accepted, and to do so on behalf of the Other Party and at a reasonable price to be determined by MIRON. In that case, MIRON shall be entitled to set off the purchase price paid to the Other Party against all its claims against that party, including its compensation claims.
3.8. The loss of or damage to the products after the risk has been transferred to the Other Party shall not release the Other Party from its obligation to pay the price, unless the loss or damage can be fully attributed to an intentional act aimed at causing that damage or gross negligence on the part of MIRON.
3.9. Stated and/or agreed delivery terms are approximate and are never firm deadlines. Delivery times shall not commence until advance payment has been received by MIRON. MIRON reserves the right to deliver the agreed quantity of goods in batches.
If payment in advance has been agreed, the ordered goods will be reserved for a period of 14 days. If no payment has been received following expiry of that period, MIRON shall have the right to deliver the goods to third-parties.
3.10. The Other Party is not entitled to dissolve the agreement due to the expiry of a stated deadline before it has given MIRON, after its failure to deliver within the agreed delivery term, a reasonable later period of time in writing to deliver the goods, and delivery within that period has not taken place either.
3.11. The reasonable period referred to in the previous clause shall be at least 1 month.
3.12. The Other Party shall not be entitled to dissolve the agreement if the late delivery can be (partly) attributed to the Other Party.
Article 4. Inability to complete the order and force majeure
4.1. MIRON shall be entitled to suspend compliance with its obligations if it is temporarily prevented from complying with its obligations due to circumstances which could not be anticipated when the agreement was concluded and which are beyond its control.
4.2. Circumstances that cannot be anticipated by MIRON and which are beyond its control include the circumstance that its suppliers and/or subcontractors fail to comply (in good time) with their obligations, the weather, earthquakes, fire, the loss or theft of tools, the loss of the materials to be processed, defective machinery, road blockades, strikes or stoppages, and import or trade restrictions.
4.3. MIRON shall be entitled to dissolve the agreement if it is unable to fulfil its obligations as a consequence of a circumstance as referred to in clause 1 of this article. If MIRON has suspended its obligations for a period of more than 6 months owing to a circumstance as referred to in clause 1 of this article, the Other Party shall be entitled to dissolve the agreement for that part for which compliance has been suspended.
4.4. MIRON shall not be liable for any damage caused by dissolution or suspension on the basis of this article.
Article 5. Retention of title
5.1. MIRON shall retain the ownership of all the goods supplied and to be supplied until the Other Party has paid all that which he owes to MIRON under existing and future contracts, including the obligation to pay interest and other (collection) costs, and any compensation and payments due for supplied services.
5.2. If it is necessary to establish which products are covered by the aforementioned retention of title, the administrative records kept by MIRON shall be binding between the parties for the determination of the scope of the retention of title between the parties.
5.3. All the products of the type that are supplied by MIRON to the Other Party shall be deemed by the parties to have been supplied exclusively by MIRON.
Article 6. Prices
6.1. In absence of explicit statement to the contrary, prices given in offers and agreements or any other quotation by MIRON are in euros and do not include VAT or any import duties, other taxes, charges and duties and the costs of pallets and pallet exchanges.
6.2. In the absence of agreement to the contrary between MIRON and the Other Party a rise in cost price-determining factors that takes place after concluding the agreement may be charged on to the Other Party if compliance with the contract had not yet been completed at the time of the rise.
Article 7. Payment and exigibility
7.1. In the absence of written agreement to the contrary, payment shall be due in advance by bank transfer. The costs of payment transactions shall be borne by the Other Party.
7.2. If payment has not taken place within the agreed payment term, the Other Party shall be liable to MIRON for the payment of interest from the date of expiry of the payment term. The interest rate is 1% per month, but is equal to statutory (commercial) interest (6:119a of the Netherlands Civil Code) if this is higher.
7.3. The Other Party shall be liable for all (judicial and extrajudicial) costs actually incurred by MIRON which relate to the collection of its claims against the Other Party.
7.4. All amounts owed by the Other Party to MIRON shall be payable on demand if a payment term has been exceeded, the bankruptcy (or the equivalent thereof used in a different country) of the Other Party has been pronounced, the Other Party has applied for suspension of payment (or the equivalent thereof), if goods or claims of the Other Party are confiscated, if the Other Party (company) is dissolved or liquidated or discontinues its business operations, if the Other Party (natural person) makes an application for statutory debt adjustment (or the equivalent thereof), is placed in administration or dies.
7.5. Payments shall be made in euros.
7.6. If the Other Party fails to meet its payment obligations, the Other Party shall be obliged on MIRON’s request to furnish what it judges to be adequate payment security. If the Other Party fails to meet this request within the set time period, MIRON shall be entitled to dissolve the contract and to recover its loss from the Other Party.
7.7. The Other Party shall not be entitled under any circumstance to set off its claims against MIRON against its payment obligations to MIRON in any capacity.
Article 8. Guarantee and indemnification
8.1. The products to be supplied by MIRON are in keeping with the usual requirement and standards that can reasonably be set in their regard at the time of delivery for normal use in the Netherlands. MIRON does not guarantee that its products are compatible with the goods the Other Party wishes to put and keep in them. The Other Party is himself responsible for carrying out tests or having them carried out to determine whether the MIRON packaging materials (glass and accessories) are suitable for the Other Party’s intended use of them and the goods that the Other Party wishes to store, pack or put in them. Neither does MIRON guarantee the compatibility of its products with accessories and other products not supplied by MIRON.
8.2. MIRON shall not be liable for any damage if its products do not comply with requirements and regulations from countries other than the Netherlands. This includes, but is not limited to legislation, required permits, fiscal matters and import regulations. The Other Party shall be responsible for such liabilities if it imports the products into countries other than the Netherlands.
8.3. The Other Party shall indemnify MIRON against all claims of third-parties based on the products not complying with local legislation and regulations (outside of the Netherlands), insofar as they have been placed in circulation by the Other Party or any companies affiliated to it in the relevant country.
8.4. The Other Party shall indemnify MIRON against all claims for damages of third-parties resulting from the use of the products insofar as they have been brought into circulation in the relevant country by the Other Party or any companies affiliated to it.
8.5. The Other Party must inform MIRON at all times about (packaging) requirements (including information obligations) that apply to sale in or import and transport to the countries where the Other Party receives the products, sells them or intends to sell them. This obligation also applies if MIRON supplies to the Other Party in bulk.
8.6. If the Other Party packs the products itself, it shall indemnify MIRON against any damages suffered by MIRON as a consequence of the Other Party’s packaging.
8.7 MIRON guarantees the absence of material faults in the products for one year following their forwarding to the Other Party. Damage to the products caused by inexpert treatment of them or their use for a purpose other than for which they were intended, including their use in combination with accessories not supplied by MIRON, as well as damage to the products caused following the transfer of risk, is expressly excluded from the guarantee. MIRON cannot be held liable for damage to the products it has delivered caused by as a result of unsuitable storage by or unsuitable company resources or machinery of the Other Party or by climatic or other outside influences. Contrary to the above, MIRON guarantees the seals against defects for 6 (six) months following their forwarding to the Other Party.
Article 9. Product inspection and complaints period
9.1. The Other Party must inspect the products, or have them inspected, before or during their delivery. Visible defects or deviations from what has been agreed that are visible or can otherwise reasonably be detected through inspections should be reported in writing to MIRON, preferably immediately upon inspection, but 5 days at the latest following the delivery of the products. If the Other Party has not made use of the opportunity to inspect the goods (or have them inspected) before or during delivery, it will be assumed as an established fact, in the absence of evidence to the contrary, that the products have been delivered without defects that are visible or can otherwise reasonably be detected by inspection.
9.2. The Other Party will report in writing to MIRON other defects or other deviations from what has been agreed within 5 days of their discovery.
9.3. If the Other Party fails to inform MIRON in writing of the defect within the time periods provided for in this article, he shall lose its right to invoke any legal consequences occurring as a result of the fault or deviation from what has been agreed.
9.4. Minor deviations from stated measurements, weights, compositions or colours or other deviations as a result of which no material change is made to the composition, execution or applicability of the products shall not entitle the Other Party to cancel or dissolve (in full or in part) the contract, or to refuse receipt or payment of the products.
9.5. If it is established that an item is faulty and this is reported in a timely manner, MIRON shall at its own discretion replace or repair it or provide payment in lieu of replacement or repair to the Other Party up to a maximum of the purchase price of the faulty item within a reasonable period of time following its return or, if its return cannot reasonably be considered possible, following written notification of the defect from the Other Party.
9.6. If a complaint is unfounded, the costs incurred by MIRON as a result, including any costs of investigation, shall be payable in full by the Other Party.
9.7. Complaints do not entitle the Other Party to suspend or reduce its contractual obligations.
9.8 If 1% or a lower percentage of the total quantity of products ordered and delivered is not in conformity with the relevant standard, that shall not entitle the Other Party to submit a complaint and have those products replaced by MIRON.
Article 10. Suspension and dissolution
10.1. MIRON has the right to suspend compliance with its contractual obligations if the Other Party fails to meet all of its obligations to MIRON under this and previous contracts, including the obligation to pay the agreed purchase price, in the absence of written agreement to the contrary, in advance,
10.2. In addition to other rights to dissolution arising from the law and the contract, MIRON has the right to dissolve the contract by means of an extrajudicial statement to that effect if the Other Party is declared bankrupt (or an equivalent thereof), applies for suspension of payment (or an equivalent thereof) or discontinues or intends to discontinue its business operations.
10.3. Insofar as the Other Party has a right to dissolution, this right shall in the case of continuing performance contracts be limited to cancellation of the order or the part of the order in which MIRON has culpably failed to meet its obligations. In that case, parties shall have a cancellation obligation with regard to all mutual performance of services related to the relevant order or part thereof. The right to dissolution shall not apply to subsequent orders and/or deliveries.
Article 11. Intellectual property rights and packaging requirements
11.1. In the absence of written agreement to the contrary, MIRON shall retain the copyrights and all intellectual property rights to the products it has delivered, the offers it has made, and the designs, images, drawings, (test) models, software, etc., that it has issued.
11.2. The Other Party shall be exclusively authorised to use the MIRON brand or other brand and trade names belonging to MIRON and other intellectual property rights for the sale of MIRON products. It is not permitted to use the MIRON brand for other purposes, including as part of an internet address or domain name.
11.3 The Other Party is expressly prohibited from using the MIRON brand or other brand and trade names belonging to MIRON and other intellectual property rights for the sale of products other than MIRON products and the products of the Other Party packaged in them.
11.4. The Other Party guarantees that all the (packaging) materials provided by the Other Party to MIRON are free from any intellectual property rights belonging to third-parties. The Other Party indemnifies MIRON against claims of third-parties with regard to intellectual property rights on materials or data provided by the Other Party which are used in the execution of the agreement.
11.5. If the Other Party becomes aware that MIRON’s products infringe an intellectual property right belonging to a third-party, or that a third-party infringes an intellectual property right belonging to MIRON, the Other Party shall notify MIRON of this forthwith.
11.6. In the event of a third-party infringing an intellectual property right of MIRON, the Other Party shall be obliged to cooperate in enabling MIRON to take judicial and extrajudicial action against this infringement.
11.7 The MIRON trademark shall at all times be used in combination with the mark “registered trademark” ®.
Article 12. Storage
12.1. The Other Party shall act at all times in keeping with any instructions given by MIRON concerning the storage of the products supplied by MIRON.
12.2 The products delivered by MIRON must be stored in a dry place. The products may corrode if stored in a damp place and could be contaminated with the odour of the packaging materials used.
Article 13. Liability
13.1. Other than in cases of intentional act or omission or gross negligence on the part of MIRON, MIRON cannot under any circumstances be held liable for damages caused by defects in or on products sold, services rendered or work carried out, either to the Other Party or to third-parties. Neither can MIRON be held liable for errors made by personnel or by MIRON in terms of any third-parties engaged in the execution of the agreement, with the exception of cases of intentional act or omission or wilful recklessness.
13.2. The liability of MIRON shall in all cases be limited to the amount of its liability insurance paid out in the case in question, but liability for non-compliance with a delivery contract shall not in any circumstances exceed the invoice amount of the relevant order.
13.3. MIRON can be held liable exclusively for direct losses. Direct losses are defined as all reasonable costs involved in establishing the cause and extent of the loss, insofar as this relates to losses provided for in this paragraph and the reasonable costs incurred to have the non-compliance of MIRON meet the contractual requirements, insofar as this can be attributed to MIRON, and reasonable costs incurred to prevent or limit losses, to the extent that the Other Party demonstrates that these costs have led to a limitation of the direct loss.
13.4. MIRON cannot under any circumstances be held liable for indirect losses including, but not limited to, loss of profits, missed savings, company stagnation, personal injury and losses suffered by third-parties, even in cases of failure to meet corrective action in full or in part.
13.5. The limitation of liability provided for in this article shall also apply to the guarantees referred to in Article 8.
13.6. Under no circumstance shall MIRON be liable for any damage as a consequence of any faults in the product if MIRON is not stated on the product as the manufacturer.
Article 14. Recall
14.1. The Other Party shall not initiate any general or partial recall of products supplied by MIRON without the prior approval of MIRON.
14.2. The Other Party shall initiate a general or partial recall of products supplied by MIRON on MIRON’s request. In such a case MIRON shall reimburse any related, reasonably incurred costs to the Other Party.
Article 15. Confidentiality
15.1. The Other Party is obliged to protect the confidentiality of all confidential information that comes to its notice in the context of the contract or any other source, on penalty of an immediately payable fine of € 10,000 per occurrence, without prejudice to MIRON’s right to claim additional compensation for damages.
Article 16. Notifications and announcements
16.1. All notifications and announcements with a juristic effect directed by the Other Party to MIRON must be made in writing and by registered mail.
Article 17. Applicable law and competent court
17.1. All legal relationships to which MIRON is a party shall be subject exclusively to Dutch law, even if a contract is executed abroad in whole or in part, or if the Other Party to the legal relationship has its domicile abroad. An agreed alternative legal system can be demonstrated exclusively by means of a document signed by both parties.
17.2. The Vienna Sales Convention (CISG) shall not apply.
17.3. In the absence of mandatory statutory provision to the contrary, the civil court in Assen shall be exclusively competent to adjudicate any disputes arising from agreements between MIRON and the Other Party. MIRON may however refer for adjudication a dispute arising from agreements between itself and the Other Party to any court that would be competent to adjudicate that dispute in the absence of a choice of forum.