Version Oct 3, 2022
These General Terms and Conditions apply to all orders, services, products, items, software and drawings (as applicable, the “Deliverables”), and that the vendor, supplier, independent contractor or other party named in the order (“Vendor”) sells, supplies, delivers or provides to or for Buyer, whether separately or in connection with any installation, construction or other project described in the order (“Order”), unless explicitly stated otherwise in a written agreement concluded between Buyer and Vendor. By signing the agreement or the Order, the Vendor declares to know these General Terms and Conditions, and accept them. To the extent that the conditions of the Order and/or agreement deviate from these General Terms and Conditions, the conditions of the Order and/or agreement shall take precedence.
The term “Buyer” is used herein to refer to Holcim Solutions and Products EMEA BV, with business offices located at Ikaroslaan 75, 1930 Zaventem, Belgium, registered with the Register of Legal Entities of Brussels under number 0695.420.714, and a wholly owned subsidiary of Holcim Ltd, a company incorporated under the laws of Switzerland with company number CHE-100.136.893 and its registered office at Grafenauweg 10, 6300 Zug, Switzerland (“Holcim Group”).
Vendor represents and warrants to Buyer as follows:
(a) Title. Upon delivery or completion, Buyer shall have good and marketable title to the Deliverables, free and clear of all liens, taxes, charges and other encumbrances.
(b) Vendor, as a specialist in its field, retains full liability for its technical decisions regardless of the degree of assistance that Buyer have provided during the performance of the Order
(c) Products. The Products and their components (i) are merchantable and of good quality and workmanship and free from defects in design, workmanship, and materials; (ii) are fit for their ordinary intended purposes and any purposes specified herein or otherwise communicated to Vendor; (iii) conform to the specifications and comply with all Applicable Laws (defined below) and safety requirements; (iv) conform to the descriptions on their labeling and packaging; and (v) are new and not previously used (unless specifically designated on the face of the Order as refurbished, rebuilt, or used) and in good working order. The Vendor shall hold Buyer harmless against all direct and indirect costs, damages and losses as a consequence of a warranty claim.
(d) The Services will be of good quality and free from defects in design, workmanship and material and will be performed, completed and delivered lien- free in a timely, safe, professional, thorough and workmanlike manner by qualified personnel using qualified Products, in strict compliance with the Order and/or agreement and all Applicable Laws, and in accordance with industry standards.
(e) Vendor represents and warrants that (i) Buyer has provided all information that Vendor deems necessary to perform the Services; (ii) it is fully aware of the purpose of the Services; and (iii) the Services will accomplish the intended purpose.
(f) Assigned Warranties. Buyer shall have the benefit of, and to the maximum extent possible Vendor hereby assigns to Buyer, all warranties and guarantees, express or implied, made by or on behalf of any manufacturer, licensor, subcontractor or supplier with respect to any Deliverables (including software) or other goods, software, and materials used in or installed as part of any Deliverables. Vendor shall cooperate with Buyer in enforcing any such warranties and guarantees. Vendor shall manufacture, deliver and perform, as applicable, all Deliverables in such manner as to preserve all such manufacturer’s warranties.
Time is of the essence of the agreement between the parties. If any delivery of Products or performance of Services is not made when promised, Buyer may, without waiving or prejudicing any of its other remedies, refuse any Deliverables and cancel all or any part of the Order without liability. If Vendor anticipates at any time that it will be unable to deliver the quantity of Products ordered because of a supply shortage, Vendor will allocate its supply so as to deliver Products to Buyer in the same proportion as delivered to substantially similar customers for substantially similar products ordered in substantially similar quantities.
Vendor shall deliver the Products in accordance with the delivery terms set forth in the agreement or Order and if no delivery terms are stated in the agreement or Order, Vendor shall deliver the Products on FCA terms (INCOTERMS 2022). Vendor is responsible for Product packaging, including all handling, bagging, blocking, barreling, boxing, crating, drayage, storage, and other packing charges. Vendor shall identify the Order on all packing lists, bills of lading and other shipping documents tendered to a carrier. Vendor shall be responsible for any additional charges if shipment other than as indicated above becomes necessary to fulfill Vendor’s obligations for timely delivery, and for excess transportation charges in connection with Vendor’s failure to comply with Buyer’s or any carrier’s packing requirements. Title and risk of loss with respect to the Products shall pass to Buyer (subject to its inspection and return rights) upon completion of Vendor’s delivery obligations in accordance with the applicable delivery terms.
Products shall not be deemed accepted by Buyer until they have been physically received and inspected at Buyer’s site and tested and accepted by Buyer. Buyer will inspect and test Products within a reasonable time after such receipt, irrespective of payment dates and other payment terms. If any Products are found to be non-conforming upon Buyer’s inspection, or are shipped contrary to instruction or on a shipping date not specified by Buyer, Buyer shall have the right, without waiving or prejudicing any of its other remedies, to reject such Products and return them or hold them at Vendor’s expense as rejected goods. Buyer may charge Vendor with storage and freight costs (inbound and outbound) and any other expenses incurred by Buyer with respect to nonconforming Products, including disposal costs.
Services shall not be deemed complete until accepted by Buyer. If Buyer determines that any of the Services are defective or do not conform to the Order and/or agreement, Buyer may, without waiving any other rights or remedies, notify Vendor of such defects or non-compliance and Vendor shall re-perform the Services or take such other action as necessary to remedy the defect or non-conformity and pay Buyer’s costs, expenses and other damages arising therefrom. Alternatively, if Buyer reasonably determines that it is not technically or economically feasible to correct the defect or non-conformity in any Services, Vendor shall deduct from the price (or refund to Buyer) an equitable amount acceptable to Buyer. If Vendor fails to correct the defect within (i) seven (7) days after Buyer’s notice, or (ii) if the defect is not capable of being corrected within seven (7) days, Vendor fails to commence and continue to use all reasonable efforts to correct the defect promptly, Buyer may perform or re-perform the Services and Vendor shall deduct from the price (or refund to Buyer) Buyer’s reasonable costs. Vendor’s correction of a defect or non-conformity shall also be subject to the provisions of the Order and/or agreement to the same extent as the Services originally performed.
The price for the Deliverables is set forth in the Order (the “Price”), and Vendor cannot add charges for taxes (other than applicable Value Added Tax (“VAT”) on the Deliverables based on Buyer’s purchase or use of such Deliverables), shipping, packaging or other matters without Buyer’s express prior written agreement, unless otherwise indicated on the Order. Vendor shall be responsible and pay for all taxes, duties, fees, and other charges other than VAT. Vendor specifically and expressly assumes the risk of any foreseen or unforeseen event or cause occurring after the date of the Order and affecting costs or pricing.
Vendor shall invoice Buyer for the Deliverables promptly after delivery. Invoices for Products can be dated before the shipping date. Invoices must be in acceptable form, contain the applicable PO number, and include such supporting documentation as Buyer may reasonably require, including adequate evidence of shipment and/or delivery of Products or progress and/or completion of Services. If an invoice is defective, the payment date (including dates for net invoices or cash discount) will be computed from Buyer’s receipt of an acceptable corrected invoice. Payment terms are as set forth in the Order and if no payment terms are stated in the Order, payment shall be due 60 days after Buyer’s receipt of a correct and complete invoice. To the extent allowed by Applicable Law, any amounts owed at any time by Buyer to Vendor with respect to Deliverables may be set off or recouped against any amounts owed by Vendor to Buyer. Payment does not imply any acceptance of the delivery or of the invoiced amount.
(a) With respect to those Deliverables created by Vendor specifically for Buyer (“Works”), Vendor acknowledges that all intellectual property rights, including without limitation, copyrights, patents, trademarks, trade secrets and other proprietary rights in the Works shall be owned by Buyer. Any and all right, title and interest in the Works, if eligible, shall be treated as “works made for hire” in the meaning of article 1779, 3 of the Belgian Civil Code, and shall be owned by Buyer. To the extent that any of the Works are not eligible for treatment as “works or services made for hire,” Vendor hereby expressly and irrevocably assigns to Buyer all right, title and interest in and to all Works and any and all intellectual property rights therein and thereto free and clear of any liens or other encumbrances thereon, it being the intention of Buyer and Vendor that all Works are and shall be the sole and exclusive property of Buyer. Vendor will execute and deliver to Buyer all documents necessary to secure Buyer’s ownership in the Works at no cost or expense to Buyer. Any Technology (as defined below) or other intellectual property that is pre-existing and owned by Vendor, or developed by Vendor incidental to the Deliverables shall remain the property of Vendor and shall not be transferred or assigned to Buyer under this Contract. However, with respect to those Deliverables, or any intellectual property (including any software, computer programs, or other technology) included in or provided with any Deliverables (“Technology”), not considered Works, Vendor hereby grants to Buyer an unlimited, irrevocable, perpetual, nonexclusive, paid-up, royalty free, worldwide license to use, reproduce, create derivative works from, modify, and dispose of Deliverables and such Technology, as well as any other rights in the Deliverables necessary for Buyer to have full use and enjoyment of the Deliverables.
(b) Vendor represents and warrants to Buyer that (i) the Products, and the sale, delivery and intended use of the Products under the Terms and Conditions, will not infringe on any intellectual property or other rights of any third party, (ii) Vendor has all rights in the Deliverables and Technology necessary to create, sell and deliver the Deliverables to Buyer and grant to Buyer the rights granted herein, (iii) Buyer shall have the right to use such Technology free of the rightful claim of any third person by way of infringement, misappropriation, or the like, and
(iv) all such Technology shall comply with and perform in accordance with the manufacturer’s or supplier’s specifications and documentation as delivered to Buyer.
All confidential, non-public, trade secret, proprietary, commercially or personally sensitive, technical, business or financial information or know-how that is received, learned or observed by Vendor in connection with the Order, and relates to Buyer or is directly or indirectly disclosed or furnished by or on behalf of Buyer, regardless of source or form and whether or not such information is marked as confidential or proprietary (collectively, “Confidential Information”), shall be deemed Buyer’s confidential and proprietary information. Recipient will keep confidential and not, directly or indirectly, in any way, (i) use the Confidential Information for any purpose other than to provide the Deliverables; or (ii) reveal, report, publish, divulge, disclose or transfer any of the Confidential Information. At Buyer’s request, Vendor shall immediately return all Confidential Information to Buyer or provide proof of its destruction. Vendor agrees to inform its employees and independent contractors of the requirements of this Section, and to ensure their compliance with it. This Section does not apply to Confidential Information to the extent Vendor can show that (a) it is generally available to the public through no fault of Vendor, (b) was received by Vendor prior to this Contract from a third party without any obligations of confidentiality to Buyer or another party, or (c) was independently developed by Vendor without use of or access or reference to Confidential Information. This Section is in addition to and does not replace any NDA.
If any of Vendor, its employees, subcontractors and agents, should enter Buyer’s premises in connection with the Deliverables or Services, they shall comply with Buyer’s safety rules and regulations and security requirements, including participating in Buyer’s required training and instructional activities and complying with all environmental management systems and requirements, that are provided to Vendor. Vendor will cooperate with Buyer in the administration of such rules, regulations and requirements, and, at Buyer’s request, deliver to Buyer periodic certifications as to Vendor’s compliance.
(a) Vendor will identify and at all times comply with, and give all notices required under, all applicable European, national and local laws, executive orders, ordinances, treaties, conventions, rules, and regulations as in effect from time to time (“Applicable Laws”). Applicable Laws include, without limitation, those related to labor and employment, wage and hour, workplace safety, data Protection and anti-corruption. Vendor will not undertake, cause, assist in or permit any activity that is illegal under, or that would have the effect of causing Buyer or Vendor to be in violation of, any Applicable Laws. Vendor agrees to comply with Holcim Group’s Code of Conduct, which Vendor acknowledges receiving.
(b) Vendor shall, at its expense, obtain, maintain and comply with all permits, authorizations and licenses necessary for the Deliverables and its performance of the Order, including environmental permits, licenses and authorizations, and shall provide Buyer with copies on its request.
(c) Without limiting Vendor’s other obligation, Vendor warrants and agrees that each chemical substance or its preparations on their own or contained in Products sold or otherwise transferred to Buyer is registered if required, under Regulation (EC) No. 1907/2006 (“REACH”), is not restricted under Annex XVII of REACH and if subject to authorization under REACH, is authorized for Buyer’s use. Upon request from Buyer, Vendor shall provide Buyer with access to all relevant information on substances meeting the criteria under REACH Annex XIV (the “candidate list”) including the name of the substance, where the substance is used, and sufficient information to allow Buyer to safely use the Products, or fulfill its own obligations under REACH.
(d) Without limiting Vendor’s other obligations, Vendor agrees that it will not bring onto or permit to exist on Buyer’s property any hazardous substance or solid waste without the prior written consent of Buyer and will not generate, handle, use, store, treat or dispose of any hazardous substance or solid waste on Buyer’s property, except in compliance with all Applicable Laws, including all environmental laws.
(e) Vendor represents and warrants to Buyer that it does not and covenants that it will not use any form of compulsory prison or slave labor or illegal child labor and does not physically abuse its workers.
(f) Applicable Laws on equal treatment enacted pursuant to European Union Directives, 2000/43/EC, 2000/78/EC, 2004/113/EC and 2006/54/EC
are herein incorporated by reference.
Any of the following events shall be a “Default” under the Terms and Conditions: (a) any voluntary or involuntary bankruptcy case, assignment for the benefit of creditors, receivership or other state, federal or foreign insolvency proceeding is commenced with respect to a party or its properties; or (b) a party becomes insolvent, is generally not paying or becomes unable to pay its debts as they become due, discontinues its usual business, dies, or commences to dissolve, wind-up or liquidate itself; or (c) more than 20 percent of the property of or ownership interests in Vendor is transferred; or (d) a party fails to comply with any material term or fails to perform any material obligations and does not cure such failure within fifteen (15) days after written notice from the non-defaulting party; or (e) any material default by Vendor occurs under any other existing or future agreement between Vendor and Buyer or its affiliates and is not cured or waived within the grace period (if any) provided therein. Upon any Default, the non-defaulting party may exercise any or all rights and remedies provided herein or available at law or in equity.
Upon any Default, the non-defaulting party shall have the right, in addition to and without waiving any other right or remedy, to immediately terminate the collaboration. Buyer shall also have the right to terminate the Order for Buyer’s convenience upon 30 day’s notice.
(a) Vendor shall protect, indemnify, reimburse, hold harmless and defend Buyer and its officers, directors, employees, workers, agents, servants, and invitees (“indemnified parties”), from and against all losses, costs, expenses (including reasonable attorneys’ fees and other expenses of litigation, arbitration and investigation), damages, penalties, fines, demands, claims, suits and other liabilities, (collectively, “Liabilities”) arising from or in connection with (i) the Deliverables; (ii) the presence of Vendor’s employees, contractors, subcontractors or agents on Buyer’s premises; (iii) Vendor’s performance or nonperformance of its obligations under these Terms and Conditions; or (iv) Vendor’s or its employees’, agents’ or subcontractor’s negligence or intentional misconduct, except to the extent caused by the negligence or intentional misconduct of Buyer or its employees. Vendor will reimburse each indemnified party for all Liabilities as they are incurred in investigating, preparing, pursuing or defending any claim, legal action, proceeding or investigation, whether or not in connection with pending or threatened litigation and whether or not any indemnified party is a party thereto.
(b) Vendor shall also protect, indemnify, reimburse, hold harmless and defend the indemnified parties from and against all Liabilities arising from or in connection with any actual or alleged infringement of any patent, copyright, tradename or trademark, trade secrets or other legal rights of any person resulting from or arising in connection with the Deliverables or Buyer’s use, sale, or disposition thereof except to the extent such infringement is based on any Specifications furnished by Buyer. In addition to the foregoing obligation, upon notice of any claim or assertion of such infringement, Vendor shall, at no cost to Buyer, either: (i) obtain on behalf of Buyer the rights to continued use of the Deliverables; (ii) substitute with other suitable, functionally-equivalent, non- infringing Deliverables; and/or (iii) refund to Buyer all fees already paid for the allegedly infringing Deliverables, in which case Buyer may terminate the collaboration. Each party shall promptly notify the other of any claim of infringement.
Unless otherwise indicated on the Order or other agreement, Vendor shall, at its sole expense, take out all necessary insurance (including but not limited to, civil liability and professional liability, to cover its obligations under the Order and/or agreement, as well as any other legally required insurance. Upon Buyer’s request, Vendor shall provide a certification from the insurance company showing Vendor’s compliance with this article.
Vendor and Buyer process each other's personal data, as well as those of the (sub)contractor(s), their personnel, their collaborators, their agents and other useful contacts. The legal basis is the performance of the contract, compliance with legal and regulatory obligations and/or the legitimate interest of the relevant party. Vendor and Buyer undertake only to process this personal data with a view to the above-mentioned purposes and in accordance with the provisions of the European General Data Protection Regulation 2016/679 (“GDPR”) as well as all prevailing laws, decrees and implementing orders. It shall only pass on this personal data to processors, recipients and/or third parties to the extent necessary within the framework of the above-mentioned purposes for processing.
Vendor and Buyer shall take the necessary precautions to protect the personal data against risks including unauthorised access, theft, destruction, loss, corruption, disclosure, reproduction or dissemination, either accidental or illegal.
If Buyer should at any time loan or deliver to Vendor any tools, equipment, raw materials, supplies, inventory or other property of any type for use in manufacturing, processing, testing, packaging, delivering or supplying the Deliverables, Buyer will retain all of its rights, title and interest in and to such property, all of which shall remain the sole property of Buyer.
Buyer shall have the right, from time to time and at Buyer’s expense, to access and audit Vendor’s books and records or cause a third party to perform the audit (including timesheets and other relevant employee records) with respect to the Deliverables to verify compliance with the Order and/or agreement. Vendor shall permit Buyer and/or the auditor selected by Buyer to enter Vendor’s premises to conduct such audits, shall make all documents and records related to the audit available for the inspection and audit, and shall reasonably assist Buyer and/or the auditor with such audit.
Vendor is an independent contractor, and nothing in agreement shall be deemed to create any partnership, agency, joint venture or other fiduciary relationship between Buyer and Vendor for any purpose. Vendor will not under any circumstances be, or be deemed to be, Buyer’s agent.
Vendor shall not assign, by operation of law or otherwise, delegate or subcontract the Order or any of its rights or duties under the Order without Buyer’s express prior written consent and any assignment or delegation without such consent shall be void. Vendor may not engage any person or entity as a subcontractor for all or any part of any Services without Buyer’s prior written consent. If Buyer provides such written consent, Vendor shall nevertheless remain responsible for the performance of all its obligations hereunder, and shall ensure that each subcontractor complies with all the terms and conditions. Vendor is and will remain liable for any and all Services performed by, and any and all acts and omissions of, its subcontractors to the same degree that Vendor is liable for its own performance, acts and omissions.
Buyer is free to purchase products or services similar or identical to the Deliverables from other vendors. There is no exclusivity agreed.
The Contract shall be governed by and construed in accordance with the laws of Belgium, without regard to its conflict of laws provisions. The Convention on the International Sale of Goods does not apply. Any disputes, controversy or claim arising out of or relating to this Contract, or the breach, termination or invalidity thereof - which cannot be amicably settled - shall be submitted to the exclusive jurisdiction of the courts and tribunals of Brussels (Belgium).
Except as modified by the Order or agreement, the Terms and Conditions are the final and entire agreement between Vendor and Buyer with respect to the Deliverables, and supersedes all previous communications, promises, representations or agreements, whether verbal or written. The invalidity of any provision or part of a provision of the Terms and Conditions shall not affect the validity of the remaining part of the Terms and Conditions. Parties shall replace the affected clause by a valid one that has the same effect within the confines of the law as the affected clause. All indemnities and warranties and all provisions related to confidentiality, intellectual property and audit rights shall survive the termination or expiration of the Order.