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InterXion General Purchase Conditions for Goods and Services
Article 1 - Definitions
|InterXion||InterXion Belgium N.V.|
|Supplier||the party entering into an Agreement with InterXion|
|Agreement||this document including the order form and all exhibits signed or initialised by the parties.|
Article 2 - Applicability
1. These purchase conditions shall apply to any request, offer, and agreement relating to the delivery of goods or provision of services to InterXion, unless otherwise agreed upon in writing.
2. The applicability of the general terms and conditions of the Supplier is expressly rejected.
3. The provisions of the "United Nations Convention on contracts for the International sale of goods" (the "Vienna Sales Convention") shall not apply to this Agreement.
Article 3 - Transfer of obligations
1. The Supplier can only transfer any obligation arising from the Agreement or his legal relationship with InterXion, to a third party after prior written consent by InterXion.
2. The consent as meant in paragraph 1 may be subject to certain conditions.
Article 4 - Prices
1. Prices are fixed and shall be expressed in EURO, unless agreed upon otherwise. Prices are excluded VAT.
2. Prices shall include all costs relating to the Supplier's compliance with the obligations.
Article 5 - Packing and dispatch
1. Any goods not requiring special packing or marking shall be packed in a reliable manner in packing designed for commercial usage, suitable for carriage, storage and transfer, and labelled on the outside of the packing stating the following data, insofar as applicable: InterXion order number, article name, manufacturer's article number, production date, name InterXion contact.
2. InterXion will at all times be entitled to return the (carriage) packing materials to the Supplier at the Supplier's expense.
Article 6 - Delivery
1. In the present article the term "delivery" will include partial delivery. Partial deliveries will only be allowed if they are explicitly stated in InterXion’s order.
2. The delivery will take place at the time and place as agreed upon, according to the Incoterm Delivered Duty Paid (DDP).
3. The Supplier will immediately notify InterXion in writing as soon as he knows or suspects that he will not be able to comply with the stipulations of the Agreement. Without prejudice to any rights InterXion is entitled to invoke pursuant to the stipulations of the Agreement or to any legal provisions.
Article 7 - Inspections and checks
1. InterXion will at all times be entitled to carry out (or order to carry out) inspections, checks and/or tests before, during or after the delivery and ask for a proof of quality.
2. On demand the Supplier will immediately give InterXion access to the locations where the goods are manufactured, stored, or processed. The Supplier will co-operate with the inspections, checks, and/or tests free of any charge.
3. If, in the event of an inspection, check and/or test before, during or after delivery, the goods are wholly or partly rejected, InterXion will ensure that the Supplier is notified to that effect. Such notification will constitute a notice of default. InterXion will offer the Supplier the opportunity to remedy the default by delivering in accordance with the order, within a reasonable term. If the Supplier fails to avail himself of that opportunity and/or fails to deliver in a proper manner, InterXion will be entitled to annul the order without any further notice of default.
4. The stipulations about the opportunity to remedy the default from the previous paragraph of this article will not apply in the event that a deadline has been agreed by parties for the delivery of goods. If the Supplier exceeds the deadline, no time for remedy will be given.
5. If InterXion should reject the goods during or after the delivery or following a check, ownership and risk will be deemed to remain with the Supplier, and therefore not to have been transferred to InterXion.
Article 8- Transfer of risk and ownership
1. The Supplier will be obligated to deliver the goods and to provide the services in compliance with the delivery schedule agreed upon.
2. The ownership and risk for the goods will be deemed to be transferred to InterXion when they are delivered and InterXion signs the delivery statement following receipt of the goods at the place of delivery, such without prejudice to the stipulations of Article 7, paragraph 5.
3. During transport, ownership and risk will remain with the Supplier.
4. If the goods are not delivered at the place agreed upon within the period agreed upon in the order form, or if services, provided in compliance with the stipulations of the Agreement, are not provided within the period agreed upon, the Supplier will be in default de jure, without any notice being required.
Article 9 - Auxiliary materials
1. Any materials, drawings, models, instructions, specifications, software, tools and other means provided by InterXion to the Supplier, fulfilling any supporting function for the Supplier for the purpose of the goods and/or services to be delivered, will remain in the ownership of InterXion.
2. The Supplier will be obligated to maintain the auxiliary materials in a proper manner, and to insure them for all risks for the account of the Supplier, for as long as the Supplier acts as a holder of those means for InterXion.
3. The Supplier shall put the auxiliary materials immediately at the disposal of InterXion on InterXion’s first demand.
4. The Supplier may only use the auxiliary materials for, and in the framework of delivery to InterXion. Any deviation from this stipulation will be subject to written consent by InterXion.
5. Any alterations to, or deviations from, the auxiliary materials provided by InterXion will only be allowed after prior written approval by InterXion.
6. The Supplier will be liable for any damage to or resulting from the use of the auxiliary materials as well as the loss of the auxiliary materials, as meant in paragraph 1, as of the time at which they are put at the Supplier's disposal.
7. The Supplier will be obligated to notify InterXion of any unsuitability or defects of the goods and/or methods provided by, or on behalf of, InterXion, insofar as the Supplier knows this or can be reasonably expected to know this.
Article 10 - Documents
1. The Supplier shall be obligated to put documents, intended for the proper use of the goods, at the disposal of InterXion, prior to, or simultaneously with, the delivery.
2. InterXion will be entitled to use these documents freely, including copying them for InterXion’s own use.
Article 11 - Spare parts
The Supplier will be obligated to keep a stock of spare parts, components, special tools and/or measuring devices, for the goods concerned, also if the goods concerned are no longer being manufactured. The Supplier will be obligated to inform InterXion, in advance, when the the goods will no longer be manufactured.
Article 12 - Invoicing and payment
1. Each time the ownership of goods has been transferred from the Supplier to InterXion, the Supplier may invoice these goods pursuant to the stipulations of Article 4.
2. The invoice, including VAT, will be paid within 30 (thirty) days after the invoice has been received and the goods have been approved.
3. The invoice shall sent to the invoice address stated on the order form. The invoice will be drawn up in accordance with the written order and shall at least include the following data:
- InterXion’s order number;
- InterXion’s article description(s);
- delivery date and address;
- delivered number of each different article;
- price/prices per unit;
- discounts, if applicable;
- total amount charged.
4. InterXion shall be in no way obligated to pay, if InterXion has not received both copies of the invoice at the agreed address, if the invoice does not state the number and date of the order form or if the invoice does not state the other data mentioned in paragraph 3 of the present Article, or if the documents required for the order have not been enclosed.
5. InterXion will be entitled to deduct any amounts, whether or not arising from the Agreement the Supplier owes InterXion from the amount of the invoice. The Supplier is not entitled to deduct any amounts InterXion owes the Supplier.
6. Payment by InterXion will not constitute a waiver of any of its rights.
Article 13 - Quality and warranty
1. The Supplier warrants that the goods delivered meet the requirements stipulated in the Agreement and will therefore be, among other things, unused (unless agreed upon in writing otherwise), free from defects, suitable for their purpose, comply with the applicable legal requirements and government regulations, as well as with the safety and quality standards of the sector concerned.
2. The Supplier will as soon as possible repair any fault or defect, reported by InterXion at the expense of the Supplier, including any additional costs.
3. The Supplier will guarantee that the delivered goods will be free from any faults and/or defects in design, programming, construction, manufacturing and material, which could impede the use of the goods and/or provided services after the calendar year 2000 in any way, and that these goods and/or provided services will function properly and consistently, which means that the calendar year 2000 will not cause any date-related problems in any way when using the delivered goods and/or provided services.
4. InterXion’s approval of and/or agreement to drawings, specifications, diagrams and other information will not affect the Supplier's responsability to ensure that the goods and services are conform to the stipulations of the Agreement.
5. The Supplier will also be liable for hidden defects and for all damages arising thereout. Such defects will be notified in writing by InterXion to the Supplier within ten working days as from the moment these defects have been discovered.
Article 14 - Non-attributable failures
Insofar as a failure in the performance of an obligation cannot be attributed to the Supplier, he will not be deemed to be in default, nor obligated to pay damages, and no penalty will be payable by him, provided that he immediately notifies InterXion of the failure and its cause in writing, not later than within 2 (two) working days after the non-attributable failure occurred, and thereby submits the required evidence.
Article 15- Confidentiality
1. The Supplier undertakes to observe confidentiality with respect to any information he has obtained, directly or indirectly, about or from InterXion, the confidentiality of which is established, and/or the confidential nature of which he can be reasonably expected to acknowledge.
2. The Supplier will impose the same obligation of confidentiality on any third party he engages for the execution of the Agreement and will oblige such parties to sign any confidentiality statement submitted by InterXion.
3. The Supplier will not be allowed to publicise the execution of the Agreement in any form or publicise that it is a Supplier of InterXion, nor to contact, directly or indirectly, with the client(s) of InterXion without prior written consent from InterXion.
4. The Supplier will not be allowed to reproduce, or to let any third parties view any documents, such as drawings, diagrams and similar matters, without written permission from InterXion.
5. The Supplier will not be allowed to use or sell any goods and/or services created jointly with InterXion for third parties without written permission from InterXion.
Article 16 - Penalty
1. If the Supplier has failed to meet any of its obligations in full by the time such obligation was due under the Agreement, the Supplier shall, without notice or warning, be in default and owe InterXion a penalty that shall be immediately due and payable in the amount of 2,5% of the price of the goods or services that are the subject of the Agreement plus VAT for each day that the failure continues up to a maximum of 100% of such price. If meeting any obligation has become permanently impossible, the full penalty shall be immediately payable.
2. InterXion shall be entitled to payment of the penalty without prejudice to all its other rights or claims, including its right to claim performance of the obligation in conformity with the Agreement, InterXion’s right to claim damages to the extent that the damages exceed the amount of the penalty and InterXion’s right to annul the Agreement.
3. InterXion may set off the amount of the penalty against any amount payable by InterXion to the Supplier or its successor.
Article 17 - Intellectual and industrial property rights
1. The goods to be delivered by the Supplier pursuant to this Agreement shall be free from any restrictions, also when combined with other goods and/or services, ensuing from patents, copyrights or any other intellectual property rights, save the restrictions explicitly accepted by InterXion in writing. The Supplier will indemnify and hold InterXion harmless against any claims for compensation or penalties ensuing from any infringements of the (intellectual property) rights of third Parties and the Supplier will compensate InterXion for any damage resulting from any infringement.
2. Insofar as an intellectual property right or any other right of third parties is vested in the goods to be delivered or in the auxiliary materials to be used, the Supplier grants InterXion, free of any charge, a non-exclusive transferable right of use.
3. If it becomes clear that InterXion’s use as meant in paragraph 1, infringes or threatens to infringe on an intellectual property right or any other right of third parties, the Supplier will be obligated to:
a. replace the goods or auxiliary materials concerned with equivalent goods that do not infringe the rights of third parties; or
b. obtain a right of use for the goods or auxiliary materials concerned; or
c. modify the goods in such a way that the infringement is removed,
These acts will take place in consultation with InterXion, without charging any additional costs beyond the price agreed upon to InterXion, and without limiting the possibilities for use any further than the original goods and/or auxiliary materials to be delivered.
4. In the event that third parties hold InterXion liable for an infringement of intellectual property rights or any other rights, as set out hereinbefore, on the basis of not manifestly unfounded grounds, InterXion will be entitled to annul this Agreement wholly or partly, out of court, and in writing, whilst reserving all its other rights.
Article 18 - Liability
1. The Supplier will be liable for any damages which InterXion may sustain (including any costs, damages or penalties that InterXion may become liable for against third parties) as a result of a breach of any contractual obligation by the Supplier or which may occur as a result of the Supplier’s execution of the Agreement.
2. Liability of the Supplier for death or personal injury shall be limited to 2.000.000 (two million) EURO.
3. Any possible product liability shall be governed by the Belgian law of February 25, 1991.
4. The Supplier must have sufficient liability insurance according to good local standards and will, upon InterXion’s request show proof of this.
Article 19 - Dissolution of the Agreement
1. Without prejudice to all its other rights or claims, InterXion may annul the Agreement wholly or partly, by means of a written statement, if:
a. the Supplier is in default regarding the fulfilment of any obligation arising from the Agreement;
b. the Supplier's fulfilment of any callable obligation pursuant to the Agreement becomes temporarily or permanently impossible including the stipulations of article 14;
c. the Supplier is adjudicated bankrupt or if it has been offered provisional or nonprovisional suspension of payment(s) or any comparable foreign measure;
d. the Supplier or any of its employees offers, or is offered, or provides any advantage to any person who forms part of InterXion, or to any of its employees or representatives.
2. If the Agreement is annulled pursuant to the stipulations of paragraph 1 of the present Article, the Supplier will repay to InterXion the payments it received from InterXion, increased by the legal interest on the paid amount, as of the payment date. If part of the Agreement is annulled, the obligation to repay will only apply insofar as such payments concern the annulled part or pro rata.
3. If the Agreement is annulled pursuant to the stipulations of paragraph 1, InterXion will be entitled to order third parties to execute the Agreement, wholly or partly without prejudice to any possible rights InterXion is entitled to. Any additional costs, InterXion has to make as a result of this will be born by the Supplier.
Article 20 - Applicable law and disputes
1. The Agreement and any agreements arising from it, shall be governed exclusively by Belgian law.
2. Any dispute relating to the Agreement, or any agreements arising from it, will be settled by the competent Court of Brussels.
Additional conditions for the provision of Services
Article 21 - Additional definitions Services any activity other than those pursuant to the stipulations of a contract of employment executed by order of InterXion. Materials goods processed in the material objects to be created, or used, during the execution of the work, save the equipment to be used. Equipment any vehicle, equipment part, crane, scaffolding, and parts thereof, consumer goods and suchlike, used by the Supplier for the execution of the Agreement, excluding, however, goods to be processed in the material objects to be created.
Article 22 - Applicability
1. These additional conditions shall apply to any request, offer and agreement relating to the provision of Services for InterXion by the Supplier.
2. Besides these additional conditions, the purchase conditions of InterXion shall apply to requests, offers and agreements as meant in the preceding paragraph, unless they are explicitly deviated from by the additional conditions, or by the nature of the articles concerned.
3. In applying these conditions the term "Personnel engaged by the Supplier" shall include any third parties engaged by the Supplier for the execution of the Agreement(s).
Article 23 - Personnel
1. Personnel engaged by the Supplier for the execution of the Agreement will comply with the special requirements defined by InterXion, or, in the absence of such requirements, they will meet the general professional and expert requirements.
2. If InterXion is of the opinion that any of the employees is insufficiently qualified, InterXion will be entitled to order the removal of this employee, and the Supplier will be obligated to replace him immediately, with due observance of the stipulations of paragraph 1 of the present Article.
Article 24 - Equipment
1. Insofar as this is not agreed upon otherwise in writing, the Supplier will ensure the availability of any Equipment required for the provision of Services.
2. In the event that the Supplier uses Equipment of InterXion with InterXion’s permission, the use of such Equipment will be at the risk of the Supplier, and the Supplier will be fully liable for any loss or damage that may occur during such use. As soon as the Supplier has stopped using such Equipment, the Supplier will return the Equipment to InterXion, in the condition in which he received it. The Supplier will immediately notify InterXion of any visible defects, including those caused by the Supplier.
Article 25 - The Supplier's obligations
1. The Supplier will be responsible for the provision of Services independently and for its own responsibility, for achieving good results, in an accurate manner and in full compliance with the Agreement, as well as with due observance of the current safety and environmental regulations.
2. The Supplier will ensure adequate supervision and leadership.
3. In principle, authorised representatives will be available at the site during working hours, and their absence, replacement, and how and where they can be reached, will be arranged in consultation with InterXion.
4. The Supplier must be registered validly with regard to social security and he must have a licence to establish a business, insofar as this is required. The Supplier shall show the relevant documents to InterXion on its first demand.
5. On InterXion’s first demand the Supplier shall supply InterXion with personal details and specifications of employment conditions (and modifications thereof), which are important for the execution of the Services, regarding the persons who will execute the activities for InterXion.
6. Unless agreed upon otherwise in writing, the working hours of the persons as meant in the preceding paragraph will be equal to the working hours of any persons working employed by InterXion.
7. The Supplier will use a time sheet and/or another checking device InterXion may choose, to determine the number of working hours of the persons as meant in the preceding paragraph.
8. The Supplier shall, at any time and on InterXion’s first demand, supply InterXion with a copy of the statements relating to his payment record with regard to social security and taxes.
9. The Supplier will indemnify InterXion against any liability towards third parties for the Supplier's failure to comply with any obligation arising from the Agreement, or any statutory obligations.
10. After fulfilling his obligations the Supplier will take the waste and packaging materials with them.
Article 26 - Charges
1. Unless agreed upon otherwise in writing, the charges for the Services agreed upon shall include all costs the Supplier incurs to ensure the professional execution of such activities, including the costs of travel and accommodation of the Supplier, as well as those of the persons the Supplier has entrusted with the execution and supervision of the Services, insurance costs, and any taxes and contributions relating to the execution, which are payable by the Supplier, excluding Value Added Tax.
2. InterXion will not be obligated to pay any charges for any extra work, unless such work was ordered in writing by InterXion. Setting-off less work will be determined in mutual consultation, unless agreed upon otherwise in writing.
Article 27 - Payment
1. InterXion will not pay until the Services have been executed to the satisfaction of InterXion, and after the Supplier has proved InterXion on its first demand, that the Supplier's personnel have been paid the wages they are entitled to.
2. On InterXion’s first demand the Supplier will enclose with the invoices, or refer in his invoices to, a time sheet stating which persons worked how many hours on which days for the execution of the activities. These personal records will include the person's name, birth date and social fund number. Further, the Supplier will state that the persons mentioned were employed by the Supplier at the time the activities were being executed.
3. InterXion will at all times be entitled to pay into the Supplier's frozen account, the social security contributions, VAT, and wage withholding tax including national insurance contributions, owed by the Supplier for the Services he executed or subcontracted, and for which InterXion could be held jointly and severally liable.
4. Without prejudice to the stipulations of the preceding paragraph, InterXion will at all times be authorised to withhold the amounts of the contributions, VAT and wage withholding tax, including national insurance contributions, from the contract price and pay these amounts and contributions, on behalf of the Supplier, directly to the creditor of these amounts
5. In the cases as meant in paragraphs 3 and 4 of this Article, such payment will constitute InterXion’s fulfilment of its obligations towards the Supplier, insofar as these amounts are concerned.
6. Without prejudice to the stipulations of the preceding paragraphs, the Supplier will pay the statutory social security costs of all its employees present at the site. InterXion reserves its right to inspect this. The Supplier will be obligated to cooperate with such inspection.
Article 28 - Sites and buildings of InterXion
1. Before starting with the execution of the Agreement, the Supplier will make himself acquainted with the conditions of the site and buildings of InterXion, where the activities are to be executed.
2. Any costs of any delay in the execution of the Agreement, caused by the conditions as meant in the preceding paragraph, will be borne by and will be at the risk of the Supplier.
3. The Supplier will ensure that his presence and the presence of his personnel at the site, and in the buildings of InterXion, will not prevent InterXion and any third parties from proceeding with their activities in an undisturbed manner.
4. Before starting with the execution of the Agreement, the Supplier and his personnel will make themselves acquainted with the contents of the house rules and the regulations at the site and in the buildings of InterXion, including those regarding safety, health, and the environment, and to act accordingly.
5. InterXion may refuse to give the personnel engaged by the Supplier meant in this stipulation access to its sites and/or buildings, and/or the area where the activities take place, and/or demand that the Supplier removes them from those sites and/or buildings, if:
a. they are manifestly unqualified for their tasks according to InterXion;
b. their conduct is such that their continued presence at the sites and/or buildings would be irresponsible, according to InterXion;
c. they manifestly act in any other violation of any obligation arising from the Agreement.
6. The Supplier will replace such persons immediately on InterXion’s first demand.
Article 29 – Strike
InterXion will not pay any wages and/or other charges for employees which the Supplier, or any third party engaged by the Supplier, entrusted with the execution and supervision of activities, nor will InterXion pay the costs of any equipment, during strikes due to which such employees are not working, and/or such Equipment is not being used