Read out

Purchasing conditions

GENERAL PURCHASING CONDITIONS OF STICHTING KRÖLLER-MÜLLER MUSEUM

(version dated July 2019)

Applicable conditions
1. These General Purchasing Conditions govern all invitations to treat, orders, instructions and contracts pertaining to the supply of goods, the performance of (ancillary) work, and the supply of services, together referred to as the ‘Supply’, for the benefit of Stichting Kröller-Müller Museum and Stichting Helene Kröller-Müller Fonds, together referred to as ‘the Kröller-Müller Museum' by a contracting party, referred to below as ‘the Supplier’.
2. Any changes to a contract, and any deviations from or additions to these General Purchasing Conditions are only effective insofar as they have been expressly accepted in writing by the Kröller-Müller Museum, and apply only to the specific contract to which they relate. Applicability of any terms and conditions of supply of the Supplier is expressly rejected.
3. If any provision of these General Purchasing Conditions is void, or is avoided, the other provisions will remain fully enforceable. In such a case the parties will negotiate to agree new provisions to replace the void, voidable, or avoided provisions, having regard as far as possible to the purpose and scope of the said void, voidable, or avoided provisions.
4. In the event of any conflict between a contract term and a provision of these General Purchasing Conditions, the contract term will take precedence.

Offers; the formation of a contract
1. Any invitation to treat issued by the Kröller-Müller Museum is subject to contract.
2. Any offer from the Supplier is irrevocable, unless before or at the time of making the offer the Supplier has stipulated in writing that it is revocable. An offer from the Supplier is valid for 90 days, unless indicated otherwise by the Supplier.
3. There is no binding contract between the Kröller-Müller Museum and the Supplier until an offer made by the Supplier is accepted in writing by the Kröller-Müller Museum.
4. If the Supplier supplies goods and/or performs work before there is any written acceptance by the Kröller-Müller Museum of an offer made by the Supplier, or before written confirmation of the instructions by the Kröller-Müller Museum, it does so at its own expense and risk.
5. The Supplier may not rely on suspension and/or setoff.

Price, invoicing, and payment
1. Unless agreed otherwise in writing, the agreed price is excluding VAT. All import and export taxes and excise duties, and all other levies and taxes connected with the contract, are the liability of the Supplier, as well as all costs connected with the performance of the contract, unless the parties have agreed otherwise in writing.
2. Unless agreed otherwise in writing, the price includes the costs of transport, storage, customs clearance, insurance, and packaging.
3. Invoices must include the number of the order/instruction, project number and/or any other code that references the order/instruction. If this information is missing, the Kröller-Müller Museum is entitled to suspend its payment obligation.
4. Unless agreed otherwise in writing, the Kröller-Müller Museum will pay a correctly invoiced amount within 30 days of completion of the Supply and receipt of all accompanying documentation, operating instructions, drawings, and quality and warranty certificates.

Contract changes; increase or decrease in work
1. The Kröller-Müller Museum is entitled to change the scope of the Supply even if this involves an increase or decrease in work.
2. If the Supplier considers that such a change has consequences for the agreed price or delivery date, it will notify the Kröller-Müller Museum accordingly in writing, without delay, and in the case of an increase in work issue a written offer relating to the new price and delivery period, as well as indicate the consequences for the other (ancillary) work to be performed by the Supplier.
3. Any additional work will not be performed by the Supplier until it has received a written instruction from the Kröller-Müller Museum. ‘Additional work’ here excludes any additional (ancillary) work that the Supplier could, or ought to, have foreseen at the time of entering into the contract for the purposes of being able to supply the agreed performances and functionalities, or that is a result of any breach by the Supplier.

Warranties from the Supplier

the Supply will fully comply with the conditions, specifications, plans, and calculations set out in the contract, and with the reasonable expectations of the Kröller-Müller Museum with regard to characteristics, quality, and reliability of the Supply, and warrants that the Supply is free of defects;
the Supply is suitable for the purposes for which it is intended having regard to the nature of the goods or in accordance with the contract or order;
the Supply complies with the current norms and standards in the relevant trade or industry;
the Supply will be made by the Supplier and its personnel in accordance with all relevant national and international laws and regulations concerning, for example, quality, safety, health, and environmental issues, and the Supply will comply with all national and international laws and regulations. The term ‘national and international laws and regulations’ includes, but is not limited to, all laws and regulations applying in EU Member States. If the contract refers to technical, safety, quality, environmental, or other regulations, or to documents not included with the contract, the Supplier is deemed to have knowledge of these, unless it notifies the Kröller-Müller Museum to the contrary in writing without delay. The Kröller-Müller Museum will then inform the Supplier about these regulations and documents;
for the duration of a contract its personnel and any third parties it engages will comply at all times with the agreed qualifications pertaining to training, expertise, and experience;
the Supply will be made on the agreed date;
further to sections a to f, above, where the Supply pertains to goods, the goods are unencumbered;
further to sections a to f, above, where the Supply pertains to the performance of (ancillary) work and/or services:
1. this will be carried out by skilled personal and/or by skilled third parties engaged by the Supplier, using new materials;
2. this will be performed by or on behalf of the Supplier in a skilled way without interruption;
3. insofar as there is no further description of the standards required of the (ancillary) work and/or services to be performed, this will be of good quality and at least comply with the usual standards of quality, adequacy, efficiency, and professionalism;
the Supplier, its personnel, and any third parties it engages will strictly comply with the company rules and company regulations of the Kröller-Müller Museum.

Performance and delivery of the (ancillary) work and services
1. On first request by the Kröller-Müller Museum the Supplier must provide a document listing the following information pertaining to the personnel of the Supplier and any third parties engaged by the Supplier for the performance of the work:
  - name and full address;
  - date of birth;
  - citizen service number;
  - nationality;
  - type of identity document, number, and expiry date;
  - if relevant, the existence of an A1 declaration, residence permit, work permit, or notification;
  - employment conditions.
2. On first demand by the Kröller-Müller Museum the Supplier must provide a document listing the registration plates of vehicles to be used for the performance of the work or the transportation of its personnel or third parties it engages, and a declaration that all its personnel and third parties it has engaged to perform the work are in possession of a recent (no more than one year old) Certificate of Conduct.
3. Unless agreed otherwise in writing, it is up to the Supplier itself to provide all the tools necessary for the performance of the contract, which must be of an acceptable quality and comply with current statutory requirements and regulations.
4. The Supplier can only use tools owned by the Kröller-Müller Museum with the permission of the Kröller-Müller Museum. Such use is at the risk of the Supplier, and the Supplier is fully liable for any damage resulting therefrom.
5. The Supplier will indemnify the Kröller-Müller Museum for any third-party claims arising therefrom.
6. Where relevant, the Supplier will deliver the work it is to perform on completion. To this end the parties will draw up and sign an inspection report, or comparable document. The work will be deemed to have been delivered once the inspection report or comparable document has been agreed and signed by the Kröller-Müller Museum. In the absence of an inspection report and/or comparable delivery document signed by the parties, and if the work has not been performed to the satisfaction of the Kröller-Müller Museum and/or the contract has not been performed correctly, and/or the Supplier fails to demonstrate on first request by the Kröller-Müller Museum that it has complied with all its payment and other obligations owed to the persons assigned to perform the contract, then the Kröller-Müller Museum is entitled to suspend its payment obligations to the Supplier, without prejudice to its other rights in this regard.
7. Delivery does not relieve the Supplier of its liability for defects that could not reasonably have been discovered at the time of delivery.

Packaging and transportation
1. The goods to be supplied should be properly packaged, and secured and transported in such a way that they reach their destination in a good condition.
2. The Supplier will ensure the shipment is accompanied by a packing slip indicating the content of the shipment.
3. The Supplier will ensure that the shipment has the designations and identification marks specified by the Kröller-Müller Museum.
4. If the Supply is not properly packaged, the Supplier is liable for damage directly or indirectly caused thereby, including damage to the Supply itself.
5. The Kröller-Müller Museum may refuse, without cost to itself, to accept any Supply that does not meet the conditions set out in sections a to c, above.
6. If there is any returnable packaging, this should be clearly indicated by the Supplier. In all other cases the ownership of the packaging transfers to the Kröller-Müller Museum at the moment of delivery. Returnable packaging may be returned by the Kröller-Müller Museum to an address specified by the Supplier at the expense and risk of the Supplier. If the Supplier does not specify an address, the Kröller-Müller Museum is entitled to send the returnable packaging to the last known address of the Supplier at the expense and risk of the Supplier.
7. The Kröller-Müller Museum may waive its right to acquire ownership of the packaging and require the Supplier to take back the packaging.
8. Sections a to g, above, do not apply to the transportation of artworks and agreements pertaining thereto, since terms relating thereto will be agreed in a separate contract.

Transfer of ownership and risk
1. Deliveries will be made to the agreed location on the agreed date. Unless otherwise agreed in writing, the delivery will be made D.D.P. ('Delivered Duty Paid') at the agreed delivery address in accordance with the version of the lncoterms in force at the time of the order/instruction, notwithstanding the provisions of these General Purchasing Conditions.
2. Part deliveries are only permitted with the written consent of the Kröller-Müller Museum.
3. The delivery date, dates, period, or periods stipulated in the contract are deadlines and apply to the entire Supply, including the accompanying drawings and other documents.
4. If circumstances arise under which it is expected that a delivery date, dates, period, or periods cannot be met, the Supplier should notify the Kröller-Müller Museum accordingly without delay.
5. If the Supplier fails to meet any agreed delivery date, dates, period, or periods, the Kröller-Müller Museum is entitled to impose a penalty on the Supplier, without the need to first service notice of default, of 1% of the price of the Supply, per calendar week or part calendar week, up to a maximum of 10%, which penalty will be immediately payable on the date it is imposed. The imposition, collection, or set-off of this penalty is without prejudice to the other rights of the Kröller-Müller Museum regarding performance, compensation, termination of the contract, and/or other remedies.
6. Ownership of the Supply transfers from the Supplier to the Kröller-Müller Museum at the time of delivery, as soon as the Supply is received by the Kröller-Müller Museum at the agreed delivery address. The Supply is at the risk of the Supplier until it has been received by the Kröller-Müller Museum.
7. In the event of the rejection of the Supply by the Kröller-Müller Museum the Supply remains the property of the Supplier, and the risk is deemed to remain with the Supplier and not therefore to have been transferred to the Kröller-Müller Museum. In such a case, the Kröller-Müller Museum is not obliged to comply with its contractual obligations. The Supplier will in such a case credit the Kröller-Müller Museum for amounts already invoiced, and immediately refund any sums already paid by the Kröller-Müller Museum. The provisions of this section are without prejudice to the rights of the Kröller-Müller Museum set out in Article 9, below, including – but not limited to – the right to replacement or repair of the goods, or termination of the contract, as described in section d of Article 9.
8. In the event of the rejection by the Kröller-Müller Museum of goods manufactured at the request and according to the design of the Kröller-Müller Museum, the Kröller-Müller Museum is entitled to require the Supplier to destroy such goods, without thereby incurring the Kröller-Müller Museum in any cost.
9. If transfer of ownership to the Kröller-Müller Museum precedes the actual delivery, the Supplier must recognisably mark the Supply as owned by the Kröller-Müller Museum, and indemnify the Kröller-Müller Museum against any loss, damage, or other forms of diminution in value of the Supply.

Inspection
1. The Kröller-Müller Museum is entitled to have the Supply inspected at any time it chooses by officers it has designated for such purpose. The Supplier must provide all necessary cooperation in this regard.
2. In respect of contracts under which the Supplier manufactures goods at the request and to the design of the Kröller-Müller Museum, the Supplier must supply in advance a sample of the product to be manufactured so that the Kröller-Müller Museum can inspect the product, unless agreed otherwise in writing.
3. The Kröller-Müller Museum is entitled to inspect the Supply at the time of delivery to the agreed address prior to acceptance.
4. If the Supply is rejected, the Kröller-Müller Museum will notify the Supplier accordingly and the Kröller-Müller Museum may choose either to have the Supply replaced or repaired, or to terminate the contract. In either case, the Kröller-Müller Museum is also entitled to compensation, as well as to exercise the rights specified in Article 8 section g.
5. All costs connected with an inspection and re-inspection are the liability of the Supplier, except for the costs of the officers appointed by the Kröller-Müller Museum to carry out the inspection.
6. If during the inspection of the goods by the Kröller-Müller Museum goods are damaged, distorted, or partly or wholly used, then no reimbursement will be made if they are rejected, whilst no replacement free of charge will be claimed if they are accepted.
7. Receipt of the Supply by the Kröller-Müller Museum does not prevent any subsequent claim by the Kröller-Müller Museum alleging defects to the goods and/or any other non-compliance of the Supplier with its obligations. This right is also not affected by any processing, re-processing, use, or onward delivery of the Supply.

Returned and rejected goods
1. Goods that are rejected or returned by the Kröller-Müller Museum to the Supplier and which, in the judgment of the Kröller-Müller Museum are identifiable with the Kröller-Müller Museum or customized, may not be sold by the Supplier to third parties and must be destroyed by the Supplier (at its own expense) in a manner pre-agreed with the Kröller-Müller Museum, whereupon the Supplier must provide proof to the Kröller-Müller Museum of their destruction in the form of photographic and video materials, and an inspection report drawn up by a bailiff. The provisions of this article also apply in full in the event that the Kröller-Müller Museum terminates the contract.

Warranty period
1. If within the warranty period the Supply does not comply with the provisions of Article 5, above, the Supplier must at its own expense on demand by, and at the choice of, the Kröller-Müller Museum, either replace, repair, or re-perform the Supply without delay, and immediately credit the relevant payment, without prejudice to the additional statutory rights of the Kröller-Müller Museum.
2. If the Supplier remains in breach of its warranty obligations, the Kröller-Müller Museum is entitled, at the expense of the Supplier, to replace, repair, or re-perform the Supply, with the help of third parties or otherwise, without prejudice to the additional statutory rights of the Kröller-Müller Museum. The Kröller-Müller Museum will give as much advance notice as possible to the Supplier of its intention to exercise the said right.
3. If the parties have not agreed a warranty period, the warranty period is deemed to be 36 months commencing the date of supply or delivery.
4. In addition to the aforesaid warranty period, for capital goods including, but not restricted to, means of production such as machinery, there is a warranty period of 60 months after the date of supply or delivery in respect of any defect that reasonably could not have been discovered through normal use within the warranty period of 36 months.
5. In respect of replaced, repaired, or re-performed parts of a Supply there is a new warranty period, equal in length to the original.

Transfer of rights and obligations; sub-contracting
1. The Supplier may not subcontract the Supply or parts thereof to any third party, or assign all or any part of its rights and obligations arising under a contract to any third party, without the prior written consent of the Kröller-Müller Museum.
2. The Supplier will indemnify the Kröller-Müller Museum against any third-party claims arising in this regard.

Termination
1. Notwithstanding its other rights, the Kröller-Müller Museum is entitled to terminate all or any part of a contract by written notice, without the need to first serve notice of default, if:
  1. the Supplier is in breach of any of its obligations under the contract;
  2. the Supplier is declared insolvent, has applied for a moratorium, has ceased operating or liquidated its business, or a significant part of its assets are attached;
  3. direct and/or indirect control over the Supplier at, for example, management and/or shareholders level, changes in part or entirely; or
  4. the Supply is rejected following an inspection or re-inspection.
2. In the event of termination, the risk relating to goods already delivered lies with the Supplier. The goods will be made available to the Supplier, which must collect them.
3. The Supplier will immediately refund the amount already paid by the Kröller-Müller Museum in respect of the terminated contract.
4. In the event of termination of the contract relating to the manufacture of goods requested and designed by the Kröller-Müller Museum, the Supplier must destroy all documents and goods already manufactured pertaining to such contract.

Liability
1. The Supplier is liable for all damage suffered by the Kröller-Müller Museum as a result of the attributable failure by the Supplier to comply with the contract properly, on time, or at all, or the Supplier’s breach of any other contractual or non-contractual obligation.
2. The Supplier will indemnify the Kröller-Müller Museum against any third-party claim arising therefrom.
3. The Supplier remains fully liable for acts or omission of third parties, even if the Kröller-Müller Museum has given written consent for the engaging of these third parties.
4. The Supplier will indemnify the Kröller-Müller Museum against any third-party claim arising therefrom.
5. The Supplier will ensure it is at all times sufficiently insured for its liability under the law and/or its contractual relationship with the Kröller-Müller Museum, and also that it is insured at all times for its insurable business risks under the usual conditions.
6. The Supplier will immediately provide the Kröller-Müller Museum on request with (a certified copy of) the policies and evidence of premium payments.
7. The Supplier hereby assigns in advance to the Kröller-Müller Museum all rights to insurance payments insofar as these relate to damage for which the Supplier is liable to the Kröller-Müller Museum.

Intellectual property rights
1. The Kröller-Müller Museum obtains the legal ownership of all intellectual property rights including, but not limited to, patent rights, copyrights, trademark rights, rights to domain names, trade name rights, database rights, related rights, and registered or unregistered model rights, that attach to the Supply.
2. If and to the extent that any such intellectual property rights to the Supply pre-existed the formation of the contract, and the Supplier considers it therefore unreasonable for the Kröller-Müller Museum to be the legal owner of those specific intellectual property rights in accordance with section a, above, the Supplier will inform the Kröller-Müller Museum accordingly in writing, in good time before entering into the contract. The Kröller-Müller Museum and the Supplier will then negotiate and reach agreement on who will have legal ownership of the said pre-existing intellectual property rights to the Supply.
  If the Supplier fails to inform the Kröller-Müller Museum of its objections in writing in good time before entering into the contract, the provisions of section a, above, will apply in full and the Kröller-Müller Museum will also be deemed to be the legal owner of the intellectual property rights to the Supply that pre-existed the formation of the contract.
3. The Kröller-Müller Museum will acquire the intellectual property rights created by, and/or resulting from, and/or otherwise connected with, the performance of the contract by the Supplier, its personnel, or third parties that the Supplier engaged for the performance of the contract.
4. On first request by the Kröller-Müller Museum the Supplier will at its own expense take any steps that are necessary and/or useful to ensure that the Kröller-Müller Museum becomes the full legal owner of the said intellectual property rights.
5. Insofar as the said intellectual property rights are not transferrable to the Kröller-Müller Museum and/or insofar as the law does not permit such transfer, the Supplier hereby grants to the Kröller-Müller Museum without charge a worldwide, perpetual, irrevocable, non-terminable, and sub-licensable right to use these intellectual property rights in the widest possible way, which right is hereby accepted by the Kröller-Müller Museum. The Supplier will give clear written notice in good time before entering into the contract if it is not entitled to the intellectual property rights, and also guarantees in such a case that it has been authorized by the legal owner to grant the licences described above. The Supplier will at all times undertake any act at its own expense to ensure that the Kröller-Müller Museum is able to use the said intellectual property rights in the way it wishes, without cost, without hindrance, and in the widest possible way. The Supplier will refrain from any conduct that could impede such use by the Kröller-Müller Museum.
6. The Kröller-Müller Museum is entitled to make changes to the Supply and to publicise these under any name it chooses. Neither the Supplier, its personnel, or third parties engaged by the Supplier to perform the contract are entitled to be named. Insofar as these are not transferrable, and insofar as permitted by law, the Supplier hereby waives its personal rights as defined by Article 25 of the Dutch Copyright Act. The Supplier will ensure that its personnel, and third parties it engages to perform the contract also waive their rights to rely on any of their personal rights.
7. The Supplier will refrain from making any registrations with regard to the said intellectual property rights, unless the Kröller-Müller Museum has given its prior explicit consent to this in writing.
8. All documents, materials, files, and information supplied by the Kröller-Müller Museum to the Supplier, such as reports, advice, designs, moulds, samples, sketches, drawings, images, photographs, videos, software, etc., remain the property of the Kröller-Müller Museum and may only be used by the Supplier for the purposes of performing the contract.
9. The Supplier may not copy, publish, exploit, or disclose/make available to any third party any of the said documents and information without the prior written consent of the Kröller-Müller Museum.
10. Following completion of the contract and at any other time that the Kröller-Müller Museum so requires, the Supplier will return at its own expense the said documents and information.
11. Any documents, materials, files, and information created by the Supplier in connection to the performance of the contract, such as reports, advice, designs, moulds, samples, sketches, drawings, images, photographs, videos, software, etc., will become the property of the Kröller-Müller Museum and will be supplied by the Supplier at its own expense to the Kröller-Müller Museum on first request.
12. The Supplier guarantees that the performance of the contract, the Supply and its use, and/or the intellectual property rights connected with the Supply and its use and/or with the performance of the contract do not infringe any third-party rights. The Supplier indemnifies the Kröller-Müller Museum against any third-party claim in this regard and will compensate the Kröller-Müller Museum on first request for any damage it suffers as a result of, and in connection with, such claim.

Confidentiality
1. In the absence of any obligation to disclose created by or resulting from any statute, the Supplier undertakes not to publish or disclose in any other way to any third party other than one involved in the performance of the contract:
  1. the identity of the Kröller-Müller Museum;
  2. the nature of the contract;
  3. the fact that the contract is to be performed by the Supplier;
  4. any information provided directly or indirectly by or on behalf of the Kröller-Müller Museum relating to the contract and to the Kröller-Müller Museum, and any data and results acquired in the context of the contract;
  without the written consent of the Kröller-Müller Museum.
2. The Supplier guarantees that its personnel and any third party it engages in the context of the Supply will be bound by the same obligation.
3. The Supplier is not permitted to use the name of the Kröller-Müller Museum in advertisements, on its website, and in other commercial communication without the prior written consent of the Kröller-Müller Museum.
4. If the Supplier breaches the provisions of this article, the Kröller-Müller Museum is entitled to impose a penalty on the Supplier of up to €25,000, without the need to first serve notice of default. The imposition, collection, or setoff of this penalty is without prejudice to the other rights of the Kröller-Müller Museum regarding performance, compensation, termination of the contract, and/or other remedies.

Processing of personal data
1. For the purposes of performing the contract and to maintain contact, the Kröller-Müller Museum processes personal data of the Supplier’s personnel, more specifically the contact details of the Supplier’s personnel.
2. The personal data of the Supplier’s personnel will be stored for as long as necessary for the specified use and for at least as long as required by law in the context, for example, storage rules for tax purposes and tax regulations.
3. If on behalf of Supplier’s personnel who regularly perform work at the Kröller-Müller Museum we apply to De Hoge Veluwe National Park for a patrons’ card (beschermerskaart) then we will forward the necessary personal data to De Hoge Veluwe National Park, which will use this data to issue a patrons’ card. De Hoge Veluwe National Park is the controller as defined by the General Data Protection Regulation.
4. If in the performance of the contract the Supplier processes personal data on behalf of the Kröller-Müller Museum this will be done in accordance with the Data Processing Agreement to be drawn up in such cases between the Kröller-Müller Museum and the Supplier.

Translations of these General Purchasing Conditions
1. In the event of any discrepancy between the Dutch version of these General Purchasing Conditions and a translation thereof, the Dutch version is legally binding.

Applicable law, disputes
1. Any contract between the Kröller-Müller Museum and the Supplier is governed by Dutch law, to the exclusion of the Vienna Sales Convention (CISG).
2. Any dispute between the Kröller-Müller Museum and the Supplier should be brought exclusively before the competent Dutch court with jurisdiction in the place where the Kröller-Müller Museum has its registered office.