Article 1. Definitions
In these General Conditions of Sale (hereinafter also referred to as 'Conditions of Sale') the following definitions apply:
Dolphin: Dolphin Metal Separation B.V. (including its personnel as well as third parties engaged by Dolphin);
Metal/Metals: all ferrous and non-ferrous streams separated by Dolphin, including but not limited to aluminum, stainless steel, copper, brass, coins, gold and silver;
Agreement: the quotation or order confirmation from Dolphin to the Other Party and/or (oral or written) agreements between Dolphin and the Other Party to which these Conditions of Sale apply;
The Other Party: natural or legal person who concludes an Agreement with Dolphin or requests a quotation for that purpose.
Written: in writing or by electronic means;
Work: the delivery of Metals by Dolphin.
Article 2. Application
2.1. All Agreements with or from Dolphin and all Work performed by Dolphin are subject to the Conditions of Sale.
2.2. Departures from these Conditions of Sale can only be made if the Parties have expressly agreed to this in writing.
2.3. The applicability of any general terms used by the Other Party, under whatever name, is hereby expressly excluded.
2.4. Dolphin reserves the right to unilaterally amend these Conditions of Sale for technically necessary reasons or pursuant to laws and regulations.
Article 3. Establishment
3.1. Quotations, tenders, prices quotes, requests in any form whatsoever from Dolphin are entirely without obligation, unless expressly stated otherwise.
3.2. An Agreement shall only be formed by an Agreement drawn up in writing by Dolphin or after Dolphin has actually commenced the Work. Any deviating or supplementary stipulations proposed by the Other Party shall not apply prior to or after the Agreement unless they have been expressly accepted by Dolphin in writing.
3.3. For Work for which according to their nature and scope no quotation or order confirmation is sent, the invoice shall also be regarded as an order confirmation, which shall also be deemed to accurately and fully reflect the Agreement or Order.
3.4. Every Agreement is entered into by Dolphin subject to the suspensive condition that the Other Party - at the sole discretion of Dolphin - appears to be sufficiently creditworthy for performance of the Agreement.
3.5. Customer with whom one has contracted once under the Conditions of Sale agrees to the applicability of the Conditions of Sale to subsequent agreements with Dolphin.
Article 4. Execution and delivery
4.1. Dolphin delivers Metals to the Other Party. Exactly which Metals will be delivered, the Parties shall agree separately in an Agreement. The Other Party is aware that Dolphin separates the Metals from Material.
4.2. The Other Party is aware that the Metals are derived from Material and that Dolphin can never provide 100% accurate separation. Dolphin always endeavors to achieve the highest quality and purity per Metal, but cannot exclude fluctuations. Dolphin is not responsible for any unintentionally added substances or hazardous substances that may turn out to be present in the delivery of Metals.
4.3. Dolphin's failure to perform the Work on the agreed day(s) does not give the Other Party an immediate right to compensation. The Other Party shall at all times first send Dolphin a notice of default with a reasonable deadline for performance.
4.4. Dolphin is authorized to use third parties in the performance of the Agreement.
4.5. Dolphin has the right to perform the Work as it sees fit whether or not by engaging third parties.
4.6. No Work shall be performed during official Dutch holidays unless otherwise agreed in writing.
4.7. Unless otherwise agreed, transport of the Metals shall be undertaken by the Buyer. Delivery takes place at the moment that Dolphin makes the Metals available to The Other Party ex works (EXW, Incoterms 2020). Transport shall be by axle.
4.8. If it has been agreed that Dolphin delivers Metals to the Other Party (at an agreed location), the Other Party is obliged to have the location in question accessible and free of obstacles on the day of commencement of the Work by Dolphin. If the above has not been met, Dolphin shall be entitled not to perform the Work in question, whereby the obligation to pay the Other Party for the costs then incurred and to be incurred by Dolphin shall continue to exist.
4.9. If applicable, the Other Party is obliged to provide Dolphin with the necessary information regarding regulations and instructions to be observed on site in good time, but in any case 5 working days prior to the commencement of the performance of the Work, and to inform Dolphin of governmental or non-governmental regulations.
4.10. The agreed delivery times and dates are not final for Dolphin. Exceeding a delivery date does not entitle the Other Party to compensation.
4.11. The parties assume the weight of the Metal as weighed by Dolphin on delivery using its calibrated weighbridge.
Article 5. Quality
5.1 The parties shall agree the quality to be delivered in the Agreement.
5.2. The Other Party fully indemnifies Dolphin in respect of quality against claims from third parties.
5.3. After delivery of the Metals by Dolphin to the Other Party, an inspection shall be performed by the Other Party. If the Metals do not meet the agreed quality, the Other Party shall inform Dolphin hereof within 48 hours of delivery. The Metal shall then, at Dolphin's discretion, either be returned at Dolphin's expense or a new price shall be agreed. It is up to the Other Party to keep the Metals delivered separate from other substances.
Article 6. Ownership/retention of title and risk
6.1. Ownership of the Metals shall not pass to the Other Party until it has fulfilled all obligations arising from the Agreement or Order with Dolphin.
6.2. If the Other Party defaults in the fulfilment of its obligations vis-Ã -vis Dolphin, Dolphin shall be entitled to immediately reclaim the Metals it has delivered. The acceptance of the returned Metals shall not constitute a rescission of the Agreement unless Dolphin has expressly stated so in writing.
6.3. Should the Other Party already process the Metals despite the fact that not all obligations under the Agreement have yet been fulfilled, such processing shall be deemed to have been carried out on behalf of Dolphin and Dolphin shall retain ownership of the products obtained from such processing. If Metals of which Dolphin retains ownership are processed together with, mixed with or attached to Metals of which ownership belongs to third parties, Dolphin shall acquire co-ownership to the resulting products in the ratio of the invoice value of the Metals of which it is the owner to the invoice value of the Metals of which such third parties are the owners. If, as a result of such mixing or attachment, the Metals become part of
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a main item of the Other Party, the Other Party, by accepting these terms and conditions, transfers its ownership of the new item to Dolphin in advance.
6.4. As long as the Other Party has not yet fulfilled all obligations under the Agreement, the Other Party shall be obliged, on behalf of Dolphin, to arrange for adequate storage of the Metals of which Dolphin retains title, to maintain these Metals at its own expense and to insure these Metals at its own expense against loss and damage to an extent that may reasonably be expected in view of the order value. By accepting these Conditions, the Other Party assigns in advance to Dolphin all claims to which it may be entitled under the insurance policies for damage caused to the Metals.
6.5. As long as the Other Party fulfills its obligations towards Dolphin properly and on time, it shall be entitled in the normal course of its business to do what it wishes with the Metals, the ownership of which is retained by Dolphin. However, this shall not apply if he has concluded an agreement with his buyers/suppliers under which the Other Party may not assign his claims thereon to third parties. The Other Party is not authorized to pledge, mortgage or otherwise encumber the Metals of which Dolphin retains title.
6.6. As long as the Other Party has not yet fulfilled all its obligations under the Agreement, the Other Party shall ensure that Dolphin is subrogated to all claims that might arise from a resale of the Metals of which Dolphin retains ownership, together with all additional rights and security interests in order to provide Dolphin with security for all claims it has against the Other Party as a result of the business connection. If Metals, of which Dolphin retains ownership, are sold together with other Metals at one price, the transfer shall be limited to the portion of the invoice value covering the Metals of which Dolphin retains ownership. If the Respondent sells Metals of which Dolphin has co-ownership, the transfer is limited to the portion of the invoice value corresponding to Dolphin's co-ownership. If the Other Party uses Metals, of which Dolphin retains ownership, for the processing of a third party's product on a contract basis, by accepting these Conditions of Sale it transfers its contractual claim on the third party to Dolphin in advance, in order to provide it with security for its claim. As long as the Other Party properly fulfills its obligations to Dolphin, it may collect claims from a resale or from contract processing itself. He shall not be entitled to transfer or pledge these claims as security.
6.7. Risk of the Metals passes after delivery from Dolphin to the Other Party, in accordance with Article 4.
Article 7. Prices
7.1. Prices quoted by Dolphin are, unless expressly stated otherwise in writing, in Euros, always exclusive of turnover tax, exclusive of additional work and exclusive of any other government levies and/or taxes.
7.2. Dolphin is entitled to charge the Other Party for all costs relating to the performance of the Agreement, as well as legal acts and legal relationships arising therefrom.
7.3. Dolphin is entitled (including in current Agreements) to increase the prices quoted by it during the term of the Agreement (incidentally for the first time after 3 months after the conclusion of the Agreement) if the Dolphin's costs increase as a result of circumstances beyond its control, for example resulting from government-imposed levies and/or taxes, or in the event of an increase in wage costs, and/or fuel costs, an increase in the prices of energy and raw materials, an increase in Processing costs and/or a change in the location where the processing takes place.
7.4. The weight of the Metals on which the invoiced amount is to be calculated shall be determined by Dolphin on a calibrated weighbridge.
7.5. Dolphin is entitled to adjust its prices once a year in accordance with the NEA index figure or CBS index figure.
Article 8. Complaints
8.1. Requests for explanation or complaints about Work performed by Dolphin must be submitted to Dolphin in writing within 8 days (with the exception of complaints about quality which must be reported in accordance with Article 5.3) of the performance of that Work after the Other Party has discovered or could reasonably have discovered the defect, failing which the rights of the Other Party in this respect shall lapse. The rights of the Other Party in this respect shall also lapse if, without Dolphin's express written permission, the Other Party itself has attempted to remedy an alleged defect or to have it remedied.
Article 9. Payment
9.1. Payment of invoices shall be made without deduction, set-off or discount within 30 days of the invoice date. Payment shall be made by bank transfer to Dolphin's bank account. Any bank and other charges relating to the payment of invoices shall be borne by the Other Party.
9.2. Payment shall not be deemed to have been made until the amount has been credited to Dolphin's designated account.
9.3. In the event of non-payment, incomplete payment or late payment, the Other Party shall be legally in default from the date of maturity of the invoice until the date of full payment, and shall owe default interest of 1.5% per month on the outstanding amount of the invoice. Furthermore, all costs of judicial and extrajudicial collection by Dolphin, with a minimum of 15% of the principal sum due to Dolphin, shall be payable by the Other Party, without prejudice to Dolphin's right to claim compensation for the actual costs incurred.
9.4. In the event of non-payment, incomplete or late payment, (application for) statutory debt rescheduling, (application for) suspension of payments, (application for) bankruptcy, attachment of any of the Other Party's assets or liquidation of the Other Party's assets and/or diminished creditworthiness of the Other Party, Dolphin shall be entitled to regard all current Agreements or parts thereof still to be performed at that time, without any judicial intervention being required, to be considered as dissolved, without prejudice to its right to claim damages in this respect.
9.5. In the cases referred to in the previous clause of this article, any claim which Dolphin may have on the Other Party shall be immediately due and payable in full.
9.6. A claim regarding the inaccuracy of an invoice must be submitted to Dolphin, giving reasons, within 8 days of the invoice date, failing which all rights of the Other Party shall lapse.
Article 10. Guarantee
10.1. Dolphin is entitled at all times to demand that the Other Party either pay before Dolphin performs the contractually agreed Work or, in Dolphin's opinion, provide sufficient (additional) security for the performance of its obligations towards Dolphin. Dolphin is entitled to suspend its obligations if the Other Party fails to comply with the foregoing.
Article 11. Additional work and changes
11.1. Dolphin is entitled to make changes to the Agreement during the term of the Agreement, for example if legislation and/or regulations so require. Dolphin shall inform the Other Party in writing of any amendments in good time, which shall replace the relevant provisions of the Agreement.
11.2. If Dolphin performs more work than has been agreed with the Other Party, Dolphin shall be entitled to charge the Other Party for this.
11.3. Additional work shall in any case exist if:
- Dolphin has to exceed normal working hours due to the actions of the Other Party;
- The Other Party requires additions to and/or changes in the Work and Dolphin believes that this will make the Work heavier or more extensive;
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- That is required for the proper and professional performance of the Agreement;
- The Other Party fails to fulfill any obligation arising from the Agreement and Dolphin believes that the Work will be aggravated or extended as a result.
11.4. Dolphin shall inform the Other Party as soon as possible in the event of additional Work as referred to in the preceding paragraph of this article as well as a statement of the costs associated with this additional Work.
Article 12. Liability
12.1. The Other Party shall be liable for all losses suffered by Dolphin caused by Dolphin's failure to perform (on time) its obligations under the Contract and/or the Act and/or in tort, as well as for shortcomings in the performance of the Order
12.2. Dolphin (and personnel of Dolphin as well as third parties engaged by Dolphin) is liable to the Other Party for attributable shortcomings arising from the Agreement. Loss of profits, including loss of income and consequential loss, shall however never be eligible for compensation.
12.3. The Other Party indemnifies Dolphin, its personnel and other third parties engaged by Dolphin in the performance of the Agreement against all claims by third parties for compensation of any loss or damage suffered by these third parties, unless the occurrence of the loss or damage is attributable to deliberate intent or wilful recklessness on the part of Dolphin, its personnel or third parties engaged by Dolphin
12.4. Dolphin's obligation to compensate damage is in any case limited to the amount of the invoice amount charged by Dolphin or, if the damage is covered by Dolphin's liability insurance, the amount actually paid out by the insurer in this respect.
12.5. Conditions limiting, excluding or determining liability which can be invoked against Dolphin by third parties can also be invoked by Dolphin against the Other Party.
12.6. All defences which Dolphin can derive from the Agreement concluded with the Other Party in order to defend its liability may be invoked by its personnel and third parties engaged by Dolphin in the performance of the Agreement against the Other Party, as if its personnel and the aforementioned third parties were themselves parties to that Agreement.
Article 13. Force Majeur
13.1. If as a result of force majeure Dolphin is unable to perform (part of) its obligations, Dolphin - without being liable to the Other Party for any compensation or damages - is not obliged to perform that which has been agreed and is entitled to invoice the part of the obligations already performed. The Other Party is obliged to pay these.
13.2. Force majeure shall include any circumstance independent of the will of Dolphin which permanently or temporarily prevents performance of the Agreement, as well as - insofar as not already included - war (threat of war), riots, strikes, (natural) disasters, accidents, government measures, delays in / failure to deliver from suppliers (including waste processors and suppliers of fuel, energy and water, etc. ), transport difficulties, fire and breakdowns in the business of Dolphin or its suppliers, revocation of permits of Dolphin and/or its suppliers.
Article 14. Intellectual property and confidentiality
14.1. All drawings, documents and data provided by Dolphin to the Other Party shall remain the property of Dolphin. Dolphin retains the copyright thereon.
14.2. The Other Party shall keep the existence and content of the Agreement and all confidential information that comes to the attention of the Other Party in the context of the performance of the Agreement confidential and shall use it exclusively for the performance of the Agreement. This obligation of confidentiality shall continue to exist for 2 (two) years after the termination of the Agreement.
Article 15. Conversion
15.1. If any provision of these Conditions of Sale is void or otherwise non-binding, this shall not affect the validity and applicability of the remaining provisions. In the event of a void or non-binding provision, Dolphin and the Other Party shall be deemed to have agreed instead on a provision that is legally valid and/or binding and the purport of which corresponds as far as possible to the non-legally valid or non-binding provision.
Article 16. Applicable laws and regulations
16.1. The Other Party must comply with applicable laws and regulations in the conduct of its business and the Agreement.
Article 17. Applicable law and dispute resolution
17.1. All Agreements and the performance thereof, to which these Conditions of Sale relate in whole or in part, shall be governed exclusively by Dutch law. The Vienna Sales Convention is hereby declared inapplicable between the parties.
17.2. In the event of a dispute between the Other Party and Dolphin, these parties shall at all times first attempt to settle it amicably.
17.3. If a dispute cannot be settled amicably, it shall, insofar as it falls within the competence of the District Court, be submitted exclusively to the competent court in the district of Rotterdam, the Netherlands.