Terms & Conditions
As filed with the Chamber of Commerce in Middelburg, the Netherlands, (file number: 1606/91) on 4th November 2003.
Article 1 - Applicability
1. These General Terms and Conditions of Sale are applicable to all our offers, quotations and agreements - however called or styled - pertaining to sales by us or on our behalf, and any and all obligations which may ensue.
2. Arrangements or understandings which deviate from these General Terms and Conditions shall apply only to the extent that they are confirmed in writing by us.
3. Any applicability of the customer's own general terms and conditions is hereby explicitly excluded.
4. Within the context of these General Terms and Conditions, the term "customer" shall be understood to include all those who place orders with, buy products from or conclude agreements with us or intend to do so, regardless of their names.
5. The headings of the Articles set out in these General Terms and Conditions have been included for the convenience of the reader and in no way define the contents of said Articles.
Article 2 - Offers/Orders
1. Our offers and quotations shall remain valid for a period of eight days or for the period stated therein, but shall be made without obligation in all cases. Therefore, all such offers and quotations shall be regarded as nothing more than an invitation to enter into negotiations. We shall be entitled to withdraw our offers and quotations within five working days of receipt of their acceptance.
2. In the event that an order is placed by a customer without us having made a previous offer, an agreement shall not come about until we confirm the order in writing within eight days of its receipt or until we commence our actual performance of the order. We shall be entitled to withdraw our quotations up to a maximum of five days after receipt of acceptance from the customer. The withdrawal of a quotation shall not place us under any obligation to compensate the customer.
Article 3 - Prices/Incoterms
1. All prices shall be exclusive of additional costs, levies, packaging, duties, insurance and costs related to extra work and transport, etc., as well as exclusive of value-added tax ("VAT").
2. All our deliveries shall be made on the basis of the most recent edition of the Incoterms as adopted by the International Chamber of Commerce, unless explicitly agreed otherwise in writing. Any explicitly agreed written deviation from any specific term in the aforesaid Incoterms ("the duty to insure" for example) shall not affect the full applicability of the other terms and conditions of the Incoterms.
3. We shall be entitled to increase the agreed prices on the grounds of cost increases, irrespective of the nature of or the reason for such increases, and, therefore, as a result of - inter alia - increases in the prices of raw materials, general wage increases, inflation or currency exchange rate adjustments.
Article 4 - Delivery and risk
Quoted delivery dates may never be construed as firm dates, but as estimates and nothing more. In the event that a delivery date quoted by us is missed, we shall not be in default until the expiry of a reasonable term, which the customer shall be required to set in its written notice of default to us. If we do not perform our delivery obligation(s) within said reasonable term, the customer shall be entitled to terminate the agreement in writing (subject to the terms and conditions of this Article), but may not in any event claim compensation for any losses it may have incurred.
Article 5 - Obligation to accept delivery
1. The customer shall be obliged to immediately lend the necessary and desired co-operation for our performance of the agreement, which shall explicitly include the obligation to accept delivery of the purchased goods.
2. Delivery shall be deemed to have been refused if ordered goods have been offered for delivery (being the moment when the customer is informed that the goods are ready and available or when the time previously agreed between the parties has passed), but delivery has proved impossible or the customer has refused to accept delivery of the goods. This shall place the customer in immediate default without any notice being required, and cause the risk of loss of or damage to the goods, among other things, to pass to the customer.
3. All our costs ensuing from the refusal to accept delivery shall be at the risk and expense of the customer, without prejudice to our other rights in relation to the customer's default. These costs shall explicitly include a reasonable charge for storage based on standard local rates and, if we deem such desirable, the costs of insurance.
4. The provisions of this Article shall not alter the fact that title to the goods shall remain with us until such time as payment in full has been made in accordance with Article 10.
Article 6 - Complaints
1. The customer shall bear responsibility for checking the quantity of the goods delivered. If the customer fails to submit a complaint in writing as quickly as possible, and in any event within 24 hours of the actual delivery of the goods in question, the quantities stated on bills of lading, delivery notes, invoices and similar documents shall be regarded as correct and definitive and the customer's right to claim on the grounds of any such discrepancies in the delivery shall have lapsed.
2. All other complaints must be submitted in writing and received by us within eight days of the actual delivery of the goods or of the date on which any defects were detected or could reasonably have been detected. If this does not happen within the said term, the customer's right to claim on the grounds of any such defects shall have lapsed.
3. As regards the measurements of the goods delivered by us, a tolerance of 5% more or less shall apply, whilst a tolerance of 10% more or less shall apply as regards weight and numbers, meaning that the customer shall not be entitled to complain or have any other rights in the event of discrepancies within the said limits. This shall also apply to minor differences in colour.
4. No rights may be derived from the way in which samples have been made, or from catalogues, photographs, pictures, etc.
5. If the customer has fully or partially disposed of or processed the goods, this shall mean that they have been accepted and any liability on our part for those goods shall have lapsed as a result.
6. Any cause for action which the customer may have against us shall lapse one year after the conclusion of the legal relationship from which said actionable cause has ensued.
Article 7 - Payment
1. If delivery is made in parts, we shall be entitled to invoice the customer for each partial delivery. We shall also be entitled to send the customer invoices for advance payments.
2. Complaints about invoices must be submitted to us in writing within eight days of the date of dispatch of the invoice in question, failing which the customer's right to claim on the grounds of any inaccuracy in an invoice shall have lapsed. In the event of any contradiction between this Article and the provisions of Article 6.1, Article 6.1 shall prevail.
3. The payment term for invoices shall be 30 days as from the invoice date in all cases, unless otherwise agreed in writing.
4. If the customer fails to pay within this term, we shall be entitled to charge interest at a rate of 2% per month as from the due date of the invoice without prejudice to any other of our rights in this context.
5. All the extra-judicial costs of collection incurred by us in order to bring about the customer's performance of its payment obligation shall be at the customer's expense. These costs shall in any event amount to 15% of the amount owed, without prejudice to our right to claim specific performance and the actual amount of damage incurred (if greater). Said damage shall include - inter alia - the actual amount incurred by us in lawyer's fees based on the rates applied by the Dutch or relevant foreign Bar Association.
6. Payment shall be made in EURO (€) to our office or to an account in the Netherlands designated by us, unless we have stated in writing that payment is to be made in another currency. The customer hereby agrees to furnish payment in another form at our first request (as provided for in Article 6:45 of the Dutch Civil Code).
7. The customer's payments shall first be applied against all the costs due, then against interest and thereafter against the oldest outstanding invoices, even if the customer specifies that the payment relates to an invoice of a more recent date.
8. The customer shall be obliged at our first request to provide satisfactory security for the payment of one or more outstanding invoices.
9. The customer shall be obliged at our first request to furnish us with an advance (payment), a Letter of Credit or some other satisfactory form of payment (guarantee) or security, all of this at our sole discretion.
Article 8 – Set-off/postponement
The customer shall not be permitted to apply any set-off, deductions or discounts to, or to postpone its payment obligations.
Article 9 - Default
If the customer fails to perform any of its obligations under or ensuing from the agreement or fails to do so properly or on time, and also in the event of:
* (an application for) the customer's bankruptcy;
* (an application for) a suspension of payments for the customer;
* appointment of a guardian for the customer by a court;
* a levy of a pre-judgment or a foreclosure attachment on the customer's assets;
* the cessation, dissolution or liquidation of the customer's business; or
* any comparable measures under foreign law,
the customer shall be deemed by operation of law to be in immediate default and we shall be entitled at our own discretion - without any obligation to pay compensation, without prejudice to any other of our rights, without notice of default or the intervention of a court of law being required - to dissolve all or any part of the agreement or to postpone our (further) performance of the agreement. In such cases we shall also be entitled to claim immediate payment of all that which is due to us.
Article 10 - Retention of title
1. All goods supplied by us shall remain our property until such time as all amounts owed to us by virtue of agreements concerning the supply of goods and (any) related activities on our part have been paid in full, and until such time as our claims in connection with any default on the part of the customer in performing such agreements have been paid. Until such full payment has been made, the customer shall not be entitled to allow third parties the use of those goods, or to rent out, pledge, transfer title to or otherwise dispose of or encumber those goods.
2. If full payment has not been made and the customer is in default or if we have good grounds for believing that the customer will default on its obligations, we shall be entitled, without prior notice of default, to immediately reclaim (title to) the goods delivered or to repossess them. The customer hereby grants us irrevocable and unconditional authority to gain access to its sites and buildings for this purpose.
3. The customer shall be obliged to properly insure the goods and, in any event, to insure them against the risks of theft, damage and loss. The customer shall not be permitted to pledge to or use as security (in the broadest sense of the word) for third parties its possible claims against the insurer under the insurance contract and the provisions of this paragraph. Payments received in connection with damage to or loss of the goods referred to in this Article shall take the place of the goods in question. At our first request, the customer shall furnish us with all the cooperation we desire so that payments of this kind are made to us or that security is created for our benefit - in, amongst other things, the form of a pledge - on such payments.
Article 11 - Exoneration
1. In the event of a failure to deliver or of late, incomplete or unsatisfactory deliveries on our part for which we are at fault, our obligation to pay compensation for the ensuing damage shall be met in full if we as yet supply, improve or repair, at our discretion, that which the customer has purchased or ordered.
2. Our liability shall in all cases be explicitly limited to that set out in paragraph 1 of this Article or, if no replacements, improvements or repairs are forthcoming from us, to the amount of the purchase price, such that we shall never be liable for any (further) damage, including consequential damage (gevolgschade), and hence that we shall not be obliged in any event to pay compensation for trading losses, loss of profit, damage as the result of personal injury, damage ensuing from third-party claims against the customer, or any other damage whatsoever.
3. Should it be, however, that a court of law establishes a greater degree of liability on our part, said liability shall be limited to the amount covered by our insurance.
4. The provisions of this Article shall not affect any liability on our part under the rules of mandatory law with respect to product liability.
Article 12 - Indemnification
Our liability towards third parties for damage arising in the performance of an agreement governed by these General Terms and Conditions shall never extend beyond our liability towards the customer. The customer shall indemnify us, both in and out of court, against all such further liability, which shall also be understood to include the product liability referred to in Article 11.4, and shall where possible stipulate the inclusion for our benefit of a comparable exoneration clause in its agreements with third parties.
Article 13 - Force majeure
We shall in any event not be held at fault for any default in our performance of an obligation (and such default shall not fall within our sphere of risk) if such default is the result of an event of force majeure, which shall be understood to include - inter alia - default and/or breach of contract by our suppliers, contractors, sub-contractors, carriers or other third parties, fire, strikes, political strikes or lock-outs, riots and civil disturbances, war, government measures - whether or not political in nature - including bans on imports, exports and transit shipments, climatological circumstances, special soil conditions, frost and all other circumstances which are of such a nature that we can no longer be reasonably expected to perform our obligation(s) and/or cannot be reasonably held at fault for and/or cannot reasonably have predicted those circumstances.
Article 14 - Right of retention
We shall be entitled to retain possession of all items belonging to the customer and held by us until such time as the customer has performed all of its obligation towards us.
Article 15 - Joint and several liability
If we conclude an agreement with two or more private individuals and/or juristic persons, each of these (juristic) persons shall be jointly and severally liable for the complete performance of those persons' obligations under and ensuing from that agreement.
Article 16 - Dispute resolution
All disputes ensuing from these General Terms and Conditions and the agreements concluded with the customer shall be submitted exclusively to and adjudicated by the competent court in Middelburg, the Netherlands.
Article 17 - Governing law
These General Terms and Conditions and all our offers, quotations, agreements and ensuing obligations shall be governed exclusively by the laws of the Netherlands. Any applicability of the United Nations Convention on Contracts for the International Sale of Goods ("CISG") - and any other treaties relating to sales - shall be excluded.