For the purpose of these conditions the following terms shall have te meanings assigned to them:
a. ‘Akiet’: the private company with limited liability Akiet B.V., having its registered office at Betonstraat 8, 8211 AE Lelystad (the Netherlands);
b. ‘Buyer’: the individual or legal entity who has ordered Akiet to sell and/or deliver certain products or to perform certain activities and/or services.
These General Terms and Conditions of Sale shall apply to the conclusion, substance, and performance of any and all agreements entered into between the Buyer and Akiet, in particular the supply of composite tubulars and ancillary parts from Akiet to Buyer. No Terms and Conditions of purchase of the Buyer shall be accepted even if Akiet have not expressly objected to them again upon receipt.
No verbal ancillary agreements have been made.
All changes and amendments to the contract shall be required in writing. The same shall apply to the waiver of the requirement of written form.
Any offers contained in brochures, advertisements, other printed matter and electronic publications – including prices – shall be subject to change without notice and without obligation.
Offers specifically prepared by Akiet shall be binding for a period of 10 days.
Offers submitted by the Buyer for the conclusion of a contract shall be binding for 3 weeks. If Akiet do not reject the offer within 3 weeks after placement of the order, the offer shall be deemed accepted. The Buyer shall waive the receipt of a declaration of acceptance.
In case of doubt about the interpretation of the terms of trade, the Inco terms as amended shall prevail.
Despite best possible determination, all particulars such as dimensions, weights, illustrations, descriptions, assembly and other drawings in sample books, price lists and other printed matters shall only be approximates and in this respect shall not be binding for Akiet. The same shall apply to particulars provided by the works. All models and drawings shall remain property of Akiet.
If nothing has been agreed to the contrary all prices shall be ex works or warehouse and exclude freight, VAT, customs and excise duties, insurance premiums and other third-party costs.
Notwithstanding item II. 1., where customs and excise duties, freight, insurance premiums or other third-party costs included in the agreed price increase after four weeks from conclusion of the contract or where these arise for the first time, Akiet shall be entitled to amend the prices of Akiet accordingly.
Akiet shall reserve the right to increase the agreed price for quantities still outstanding if a change in the raw material and/or economic situation results in circumstances which make the production and/or purchase of the product in question considerably more expensive than anticipated at the time of price agreement. In such case, the Buyer shall be entitled to cancel any orders affected within four weeks from notification of the price increase.
Akiet shall also have the right to increase the agreed price if the delivery period is subsequently extended for reasons specified in IV. 4., the material or the design require changes on grounds of the fact that the documentation and/or instructions provided by the Buyer were not in accordance with the actual circumstances or were incomplete or if Akiet fail to receive the particulars required for the execution of the order in time or the Buyer subsequently amends these by mutual agreement, thus causing a delay in the delivery.
III Payment and offsetting
In the absence of an agreement to the contrary or unless otherwise specified in the invoices of Akiet, the purchase price shall be due immediately on delivery without cash discount deduction and shall be paid such that the full amount is available to Akiet on the due date. All costs related to the payment transaction shall be borne by the Buyer.
The Buyer shall not have the right of retention of offsetting unless its counterclaims have not been contested, have become res judicata or are ready for a decision.
Where the delivery is delayed for reasons for which Akiet is not responsible, the full invoice amount shall be due within 14 days from notification of readiness for dispatch or after dispatch from the works of Akiet. In such case, the Buyer shall be obliged at the request of Akiet to change the terms of the credit accordingly.
Where the credit period is exceeded or payment is delayed, Akiet shall charge interest in the amount of 5% per cent above the European Central Bank base rate, unless higher interest rates have been agreed. Akiet shall reserve the right to claim further damages due to default.
The Buyer shall be in default 10 days after the due date and receipt of the invoice/payment schedule or receipt of the services at the latest.
Where Akiet become aware of circumstances which, after due assessment, appear to impair the creditworthiness of the Buyer, Akiet shall have the right to refuse outstanding deliveries or effect performance only after pre-payment or provision of collateral. Akiet shall also be entitled to accelerate the maturity of all claims against the Buyer under the current contract.
Any cash discounts agreed shall only apply to the invoiced amount, excluding freight, and shall be subject to full settlement of all outstanding liabilities of the Buyer at the time of discounting.
IV Performance of deliveries, delivery periods and dates
In no event shall any delivery terms stated by Akiet be deemed to be fixed dates, unless expressly agreed otherwise in writing. Delivery periods shall commence on the date of the Akiet order confirmation and shall only apply on condition that all specifics of the contract have been duly clarified and that all obligations of the Buyer have been performed on time, including the procurement of official certificates, the furnishing of letters of credit and guarantees or the payment of advances.
The time of dispatch from the works or warehouse of Akiet shall be decisive for determining the compliance of Akiet with the delivery periods and dates. Where products cannot be dispatched on time for reasons for which Akiet is not responsible, the periods and dates shall be deemed to have been observed on notification of readiness for dispatch.
Circumstances of force majeure shall entitle Akiet to postpone the delivery for the duration of the interference and an appropriate start-up period. This shall also apply where such circumstances occur during an ongoing delay. Force majeure shall include all monetary and commercial policy or other sovereign measures, strikes, lockouts, interruption of operations for reasons for which Akiet is not responsible (e.g. fire, machine or roller breakage, raw material or energy shortages), obstruction of the traffic infrastructure, delays in import/customs procedures, and any other circumstances which considerably hinder or prevent deliveries for reasons for which Akiet is not responsible. It is irrelevant whether these circumstances occur at Akiet or at a sub-supplier. Where the execution of the contract is rendered unreasonably hard for either party due to the above circumstances, specifically where the execution of material parts of the contract is delayed for periods exceeding 6 months, the party affected shall have the right to terminate the contract.
V Reservation of title
Without prejudice to the provisions of these conditions, all products delivered by Akiet shall remain the property of Akiet until the time of payment of all claims of Akiet against the Buyer covered by article 92 of book 3 of the Netherlands Civil Code, on any ground whatsoever, irrespective of whether such claims are due and payable, including interest and costs.
Until payment in full to Akiet, the Buyer may not pledge the products to any third parties, put the products in the possession of any third parties, or otherwise transfer and/or encumber the products, other than in the course of its normal business operations, in which event the Buyer shall sell and deliver such products subject to a retention of title.
The Buyer must clearly identify the products that they are delivered by Akiet but not paid for in full (unpaid products) as belonging to Akiet and keep them safe, secure, comprehensively insured against loss and damage and separate from other property. Where the Buyer gets into arrears or fails to pay an invoice when due, Akiet shall have the right to reclaim the unpaid products and for this purpose, to enter the premises of the Buyer. Except as otherwise expressly set out in this clause, the Buyer must not:
a. part with possession of the unpaid products;
b. allow any right to be created over the unpaid products; or
c. make, nor allow anyone other than Akiet to make, any additions, alterations or modifications to, or remove any part of, any of the unpaid products.
Akiet may, by notice, cancel the Buyer’s right to sell unpaid products if it fails to pay Akiet the amounts due under the invoice in respect of those unpaid products. If:
a. the Buyer is unable or deemed unable or admits inability to pay its debts as they fall due; or
b. the Buyer enters into a composition, compromise, assignment or arrangement with any of its creditors (whether by way of a voluntary arrangement, scheme of arrangement, deed of compromise or otherwise); or
c. a moratorium is sought or declared in respect of the Buyer or any of its indebtedness or an application is made to court for protection from its creditors; or
d. an administrator, liquidator (compulsory or voluntary other than a liquidator appointed in a solvent winding up for the purposes of amalgamation or reconstruction), provisional liquidator, receiver, administrative receiver, receiver and manager, voluntary arrangement supervisor, compulsory manager or other similar officer is appointed to or in respect of the Buyer or the whole or any part of its property, assets or undertaking; or
e. a petition or application is presented or documents are filed or faxed with a court for the appointment of an administrator, liquidator or receiver to the Buyer provided that if the Buyer is contesting the winding-up petition in good faith and with due diligence the notice shall not be treated as having being given until a period of 5 business days has expired since the presentation of the petition or application without it having been either discharged or struck out; or
f. a meeting is convened, a resolution is passed or notice is given of the intention to appoint an administrator, liquidator or receiver (including an administrative receiver and a receiver and manager) to the Buyer; or
g. an order is made for the Buyer’s winding-up, administration or dissolution; or
h. possession is taken of the whole or any part of the Buyer’s property, assets or undertaking; or
i. the Buyer ceases or threatens to cease to carry on all or a substantial part of its business or operations or sells, transfers or otherwise disposes of the whole or a substantial part of its undertaking or assets, either by a simple transaction or a number of transactions; or
j. any other analogous step, process or procedure is taken in relation to the Buyer in any jurisdiction,
then the Buyer’s right to sell unpaid products will automatically end and Akiet may refuse to supply it with any further products.
VI Qualities and dimensions
All qualities and dimensions shall be subject to the API quality standards, DIN/EN [A1] standards and material sheets applicable at the time of conclusion of the contract, and in the absence of these, in conformity with trade practice. References to standards, factory standards, material sheets or test certificates and details of qualities, dimensions, weights and usability shall not constitute an undertaking of warranty. The same shall apply to declarations of conformity, manufacturer’s declarations and appropriate marks such as CE and GS.
Where acceptance inspection has been agreed, the products may only be inspected at the supply facilities or at the warehouse of Akiet immediately after notification of readiness for acceptance. Personal acceptance charges shall be borne by the Buyer, any material acceptance costs shall be charged on the basis of the price list of Akiet or the price list of the supplying facility.
Where acceptance is not performed or completed or is late for reasons for which Akiet is not responsible, Akiet shall have the right to ship the products without acceptance or store them at the cost and risk of the Buyer and pass on any resulting costs to the Buyer.
VIII Shipment, passage of risk, packaging, part deliveries
The shipping route and mode and the forwarding agent shall be determined by Akiet.
Where transport on the specified route or to the specified location at the specified time proves impossible or is considerably impeded for reasons for which Akiet is not responsible, Akiet shall have the right to use a different route or deliver to a different location. Any additional costs incurred shall be borne by the Buyer, who shall be given the opportunity to comment prior to such action.
The risk, including that of confiscation of the products, shall pass to the Buyer once the products have been handed to the forwarding agent or carrier, or at the latest once they have left the warehouse or the supplier (as included in the most recent version of ICC Incoterms). This shall apply to all transactions and shall include products for which charges have been prepaid and for shipments free to the Buyer’s address. Insurance shall be arranged only by order and at the expense of the Buyer. The duty and cost of unloading shall be the responsibility of the Buyer.
The products shall be delivered without packaging and without protection against rust. Where customary in the trade, Akiet shall deliver packaged products. Suitable packaging, means of protection and/or transport may be arranged based on the experience of Akiet at the expense of the Buyer. These may be returned to the warehouse of Akiet. Akiet shall not assume any responsibility for the costs of the Buyer for the return transport or for its own disposal of the packaging.
Akiet shall have the right to make part deliveries within reasonable limits. Excess and short deliveries of the contractual quantity as customary in the trade shall be permissible.
IX Call Orders
Products notified as ready for shipment as per contract shall be called immediately. Failure to do so shall entitle us, after a reminder, to ship them at the option of Akiet at the cost and risk of the Buyer or to store them at the discretion of Akiet with immediate invoicing.
Where contracts are based on continuous deliveries, the Buyer shall provide Akiet with calls and batch instructions for approximately equal monthly quantities. Failure to do so shall entitle Akiet to decide at its discretion.
Where individual calls exceed the total contractual quantity, Akiet shall have the right, but not be obliged, to supply the additional quantity. The additional quantity may be charged at the prices applicable at the time of the call or delivery.
X Liability for defects
Material defects of the products shall be notified immediately in writing, or within seven days from delivery at the latest. Material defects which could not be detected within this period despite careful inspection shall be notified to the seller in writing immediately on discovery, or prior to expiry of the statutory period of limitation at the latest. At the same time, any and all use and processing shall immediately be discontinued.
Once the Buyer has accepted the products as agreed, any notification of material defects which could have been detected during the agreed acceptance inspection shall be excluded.
In the event of a justified and timely notification of defects, Akiet shall be given opportunity, at the option of Akiet, to remedy the defect or provide products in perfect condition (subsequent performance). In case of failure or refusal of subsequent performance, the Buyer shall be entitled to reduce the purchase price or, after a reasonable but unsuccessful period of grace, to withdraw from the contract. For minor defects, the Buyer shall only have the right to claim a reduction of the purchase price.
Where the Buyer fails to give immediate opportunity to verify the material defect and make the rejected products, or samples thereof, available especially at the request of Akiet, (to the extent permitted by applicable law) all rights relating to the material defect shall expire.
Where products have been sold as downgraded material – with the exception of IIa material – the Buyer shall not be entitled to any rights arising from material defects where these result from the reasons stated for the downgrading or such as may normally be expected in this regard. Where products sold are IIa material, the liability of Akiet for defects shall be excluded (to the extent permitted by applicable law).
Akiet shall assume responsibility for expenses associated with subsequent performance only where reasonable in each case, particularly in relation to the purchase price of the products. No responsibility shall be assumed for expenses incurred as a result of transporting the purchased products to a location other than the seat or place of business of the Buyer, unless in accordance with the terms of the contract.
XI General limitation of liability
Akiet shall only be liable for breach of contractual or other obligations, specifically for impossibility of performance, default, culpa in contrahendo and unlawful acts, in the event of intent or gross negligence. This shall include the executive staff of Akiet and other vicarious agents and shall be limited to loss typically foreseeable for this type of contract.
Subject to XI. 1, Akiet will not be liable to the Buyer under any statute or in contract, tort or otherwise for any:
loss of profits, business revenue, business opportunity, contracts, goodwill and/or anticipated savings, whether direct or indirect; and/or
damage or defects to any well or sub-surface reservoir whether or not resulting from any defects in supplied products or services; and/or
indirect or consequential loss or damage, which arises out of or in relation to these Terms and Conditions, any order or any agreement between Akiet and Buyer.
Subject to XI. 1, the total aggregate liability of Akiet to the Buyer in connection with each order for products or services of Akiet (whether such liability arises under any statute or in contract, tort or otherwise) shall be limited to the total price payable by the Buyer under that order.
XII Intellectual Property Rights and Confidentiality
Unless agreed otherwise, Akiet will retain all copyrights and all industrial property rights to the offers made by it, or to the images, drawings, models, trial models, software and suchlike provided.
The rights to the items referred to in Article XII.1. will remain Akiet's property, regardless of whether costs were charged to the Buyer for the manufacturing. The Buyer is not permitted to copy, use or show these items to third parties without Akiet's prior explicit permission.
Both parties are bound not to disclose any confidential information they have acquired from each other or from some other source in the context of their agreement. Information is to be regarded as confidential if a party has stated that it is confidential or if it is obvious from the nature of the information that it is confidential.
If Akiet is obliged, by virtue of a statutory provision or a judicial ruling, to disclose confidential information to third parties designated by the law or a competent court and Akiet is unable to claim a right of non-disclosure recognized or granted by the competent court in such a case, then Akiet will not be obliged to pay any damages or compensation and the Buyer will not be entitled to terminate the agreement.
XIII Expiry periods
Legal actions and other powers of the Buyer, for whatever reason, with respect to Akiet in connection with the Products delivered and Services provided will lapse after twelve (12) months following the date on which the Buyer became aware or could reasonably be aware of the existence of these rights and powers, but has not lodged a written claim with Akiet on this basis before the expiry of this period.
If within the period stated in Article XIII.1. a written claim has been lodged by the Buyer with Akiet in connection with products delivered and/or services provided by Akiet, any legal action of the Buyer in this respect will also lapse if no lawsuit has been brought against Akiet before the competent court pursuant to Article XIV of the Terms and Conditions within a term of four (4) months after receiving the relevant written claim.
XIV Place of Performance and jurisdiction, applicable law and contract language
These Terms and Conditions are governed by and shall be construed in accordance with the laws of the Netherlands. Any disputes between the parties will exclusively be settled by the District Court of Lelystad.
The contract language shall be English. Where contracts are translated into a different language, the English version shall prevail in all questions of interpretation.
XV Partial invalidity
Should any individual provision or any part of any provision of these Terms and Conditions be or become void or unenforceable, the validity of the remaining provisions hereof shall in no way be affected. In such case, the parties shall agree to replace the void and/or unenforceable provision or provisions by relative provisions acceptable to both parties which come as close as possible to the sense and purpose of the deleted section.