NEM, Trade Register No. 24217741 PO Box 283 - 3130AE Vlaardingen - The Netherlands
General Terms and Conditions of Sale September 2012
These general terms and conditions of sale are registered under No 24217741 at the chamber of commerce (KvK) Rotterdam.
They are applicable to all agreements with and/or legal acts of Seller. Any and all other conditions are explicitly rejected.
Article 1. Applicability
1.1 These general terms and conditions apply to all tenders and agreements –
whether or not in writing – respective of the sale, delivery and payment of
goods and services, and in particular respective of the material to be milled,
of the private company B.V. Nederlandse Erts- en Mineraalbewerking,
(registered and) established in Vlaardingen, as well as to its associated and
1.2 Provisions and agreements deviating from these general terms and
conditions, including any of the client’s general terms and conditions, shall
only be lawful if confirmed in writing by the Management or the Staff
authorised for this purpose.
1.3 These general terms and conditions have been updated in 2012 and come
into force as of September 1
Article 2. Definitions
2.1 B.V. Nederlandse Erts- en Mineraalbewerking and its associated and
subsidiary companies in these terms and conditions are indicated as ‘NEM’.
2.2 ‘Materials’ include the materials provided by the client to NEM for milling,
crushing and/or any other processing purposes.
2.3 ‘Client’ means any natural person or legal entity concluding an agreement
directly with NEM with respect to its goods and/or services.
2.4 ‘Parties’ are NEM and its client.
Article 3. Tenders
3.1 Unless otherwise stated, tenders are valid for 60 days from the tender date.
If not expressly stated otherwise, tenders are entirely free of commitment.
3.2 The stipulated prices are stated per ton (1000 kg), unless stated otherwise.
3.3 When regulations are issued by the local or state authorities pursuant to
which prices will have to be invoiced other than those agreed between the
parties, NEM will be entitled to cancel those parts of the current agreements
that have not yet been implemented.
3.4 All the prices stated by NEM are exclusive of turnover tax and/or other taxes
in the broadest sense of the word, unless agreed otherwise in writing.
Article 4. Agreement
4.1 At the confirmation of the order or after acceptance of the tender drawn up
by NEM, the content of the order confirmation or the accepted tender shall be
considered to be the scope of the agreement, subject to the provisions below.
4.2 Any subsequently made agreements and/or amendments as well as
commitments by staff or subordinates of NEM shall only be binding providing
that they have been confirmed in writing by the management or NEM’s
Article 5. Storage
5.1 The materials processed by NEM can be stored at NEMs site without charges
for a maximum period of two weeks, unless agreed otherwise; after this
period, storage costs will be charged.
5.2 The material (either processed or unprocessed) shall be stored at the risk and
responsibility of the client during the entire period. The stored materials are
not insured by NEM, unless expressly agreed between parties.
Article 6. Delivery*)
6.1 Delivery period:
a) Delivery period means the time between the date at which the materials were
supplied by the client to NEM with NEM’s permission and the time and/or the
agreed date at which, or the period to be determined within which, the
processed material is prepared for transport; unless agreed otherwise.
b) The delivery period will be extended by any delay, caused by the client’s
negligence to timely pay an amount which has become payable or by the
client’s negligence to comply with another obligation. The costs caused by
such negligence, shall be for the account of the client.
c) The delivery periods stated and agreed by NEM are targets, not fatal
deadlines, unless expressly agreed otherwise in writing.
6.2 The delivery is considered to have been effected:
a) in case the materials are collected by or on behalf of the client from the
address agreed between the parties; by the acceptance of the materials;
b) in case of dispatch by the agency of a professional transport company; by the
transfer of the materials to that transport company;
a) Default by NEM caused by disruption of NEMs production process; required
reduction of the production; lack of suitable transport facilities or fuel and/or
other energy; strikes or exclusions; domestic riots; state of war;
mobilisation; siege; impeding government measures; the situation where a
private or public organisation is prohibited to make deliveries, which decisions
are binding upon NEM, irrespective of whether the fact that such prohibition
to make deliveries existed at the time the agreement was effected and was
binding upon NEM; lack of raw materials; not or non-timely delivery by NEM’s
suppliers; and in general any cause hampering the processing, storage,
dispatch, transport or delivery; cannot be attributed to NEM, and such
circumstances release NEM from any commitment to deliver or to comply,
irrespective of whether the above circumstances occur at NEM or at its
b) If such default of NEM lasts for more than one month, each of the parties –
while excluding any further rights - shall be entitled to dissolve the
agreement in writing in accordance with the law.
c) In the case of NEM’s default, NEM shall not be bound to pay any damages.
*) Unless agreed otherwise, the use of the term “delivery” does not imply transfer of the title to the
processed materials or those yet to be processed, but it refers to the physical supply and delivery of
the unprocessed or processed materials.
Article 7. Dissolution
7.1 If client fails to comply with any obligation under the agreement effective
between parties and further-more, in the case of bankruptcy, moratorium,
receivership, arrest or liquidation of clients business client is considered to be
in default by law and any claim NEM has or obtains against client will be
immediately payable without any summon or notice of default. In the cases
mentioned in this section, NEM is entitled to dissolve the agreements with
client and NEM shall not be bound to any further compliance, or to pay
damages, without prejudice to NEMs right to a full compensation of the costs,
damage and interest pursuant to these terms and conditions.
Article 8. Complaints
8.1 NEM must be notified in writing and properly documented, of complaints
about her performance within fifteen (15) Working days following the
delivery. The consequences of non-timely filing of complaints shall be for the
account of client.
8.2 Only complaints with respect to materials that are still in the condition in
which they were delivered by NEM can be considered valid complaints.
8.3 Small deviations in quality or performance that are considered acceptable or
unavoidable in this industry shall not give cause to complaints. Further to this
client must account for some volume loss due to the milling and processing of
the material supplied to NEM.
8.4 Return shipments which have not been preceded by a complaint such as
described under 8.1 and a written confirmation that NEM accepts the return
shipment, shall not be accepted. The costs of unfounded and/or not
previously notified (in writing) return shipments shall be for the account of
client. NEM may store the respective materials at its location or at that of
third parties for the account and at the risk of client.
8.5 In no event whatsoever shall complaints entitle client to dissolve the
agreement concluded with NEM. Nor shall complaints entitle client to suspend
payments, obtain a discount and/or offset payments.
Article 9. Liability
9.1 NEM shall not in any case be bound to pay any compensation whatsoever,
caused in or by the use of the processed materials or by the fact that
(processed) materials have appeared to be unsuitable for the purpose for
which the client wishes to use them.
9.2 NEM is not liable for any direct or indirect damage including business loss,
damage to goods or injury to persons, caused by the supplied (processed)
materials or by advice or information provided, or any damage caused by
poor quality of the supplied materials, all of the above in the broadest sense
of the word.
9.3 Client holds NEM harmless, as far as the law permits, against any liability of
client with respect to a fault in the materials supplied by NEM.
9.4 Without prejudice to the provisions stated in 9.1, 9.2 and 9.3, any obligation
of NEM to pay damages, on any account whatsoever, shall at any time be
limited to the amount NEM charged to client for (milling) work of the
Article 10. Payment
10.1 The date of payment shall be the day the payment is credited to NEM.
10.2 All payments must have been made by the last day of the agreed payment
period (expiry day).
10.3 If client has not paid the amount due by the agreed expiry day, or – when no
expiry day was agreed, has not paid within 10 working days following the
moment client was held in default by NEM, client is considered to be in
default by law. In that case, NEM is entitled to charge a monthly interest fee
of 1% on the amount due from client. The interest will be charged from the
expiry day, while part of a month shall be considered a whole month.
10.4 Should NEM be required to seek legal advice with respect to a dispute related
to an agreement concluded with client to which these terms and conditions
apply client shall carry the costs for legal aid. The out-of-court collection
costs amount to 15% of the amount due with a minimum of € 500,00, to be
increased with the actually incurred expenses.
10.5 In case of late payment, NEM shall be entitled to suspend delivery and/or
processing of other materials, or as the case may be, to dissolve any
agreement concluded with client or parts thereof without a summons or court
intervention, and claim full damages from the client.
Article 11. Miscellaneous
11.1 In so called test milling and batches of less than 100 tonnes, any costs for
cleaning the units shall be charged in addition to the agreed milling price.
11.2 Client by itself is obliged to notify NEM of any hazards related to his material,
which includes: risks of silicosis, explosion, fire and gas and poisonous
substances. Further to this client must supply an MSDS (Material Safety Data
Sheet) for each type of material to be processed, prior to the moment the
client requests a tender.
11.3 Client is also obliged to notify NEM of any possible contaminated material
supplied, in particular if such contamination may cause a hazard to persons,
to the equipment, as well as to the environment (water, soil and air
11.4 The damage caused to NEM when client has not supplied information on the
contents of sections 11.2 and 11.3 –also in the case client was unaware of
the hazards and/or pollution of the supplied material– shall be fully for the
account of and at the risk of client.
11.5 Contracted milling assignments are always carried out with the greatest
possible care, among others by cleaning the units as thoroughly as possible
beforehand. Otherwise, NEM cannot give any guarantee with respect to
contamination or chemical composition.
11.6 Client must account for some loss due to milling or processing. When the
materials to be processed by NEM represent a high value, NEM advises client
to provide weight declaration documents when delivering the materials.
Article 12. Disputes
12.1 Dutch law applies to any dispute related to an agreement within the scope of
these terms and conditions.
12.2 Disputes mentioned under 12.1 shall only be settled by the Court at
Rotterdam, except when the cantonal court is the competent party to take