General Terms and Conditions of Delivery and Payment. Wittur Nederland B.V.

Transcription

1 General Terms and Conditions of Delivery and Payment of Wittur Nederland B.V. having its registered office and maintaining business premises in Almere, the Netherlands, filed on 28 February 2002 with the Chamber of Commerce and Industry for Flevoland in Lelystad, the Netherlands, under number Drawn up by Graydon Nederland BV, established in Amsterdam, the Netherlands. All reproduction and copyrights are reserved. Article 1 Definitions In these General Terms and Conditions, the terms below will be understood to have the following meanings, unless expressly stated otherwise. User: The Buyer: Agreement: the user of these General Terms and Conditions; the User s counterparty, acting in its capacity as a professional or corporate party and, in addition to the counterparty, its representatives, agents, legal successors and heirs; the agreement between the User and the Buyer. Article 2 General 2.1 The provisions of these General Terms and Conditions will apply to every offer and Agreement between the User and a Buyer to which the User has declared these Terms and Conditions applicable, insofar as the parties have not expressly deviated from these Terms and Conditions in writing. 2.2 The current General Terms and Conditions will likewise apply to all Agreements with the User, for the performance of which it has engages the services of third parties. 2.3 The Buyer s general terms and conditions will apply only if it has been expressly agreed in writing that same will apply to the Agreement, to the exclusion of these General Terms and Conditions. In that event, any conflicting provisions laid down in the User s General Terms and Conditions and those of the Buyer will apply between the parties only insofar as same are part of the User s Terms and Conditions. 2.4 If one or more provisions in these General Terms and Conditions are null and void or are nullified, the remaining provisions of these General Terms and Conditions will remain fully applicable. In that event, the User and the Buyer will enter into negotiations to agree on new provisions to replace the null and void or nullified provisions, for which purpose the aim and purport of the original provision will be taken into account if and insofar as possible. 1

2 Article 3 Offers and quotations 3.1 All offers will be without obligation, unless the contrary is expressly provided. If the User makes an offer or issues a quotation, this will not oblige it to accept an order. If the User does not wish to accept an order, it shall inform the Buyer of its non-acceptance of the order within thirty days of its receipt of the order. The User s notice of non-acceptance of an order need not state its reasons for such non-acceptance. 3.2 Any designs, sketches, drawings, films, software and other materials such as estimates, plans, catalogues or electronic or other files enclosed with an offer or a quotation, whether or not prepared by the User, with remain the User s property, irrespective of whether same are made available to the Buyer or to a third party, unless otherwise agreed. The Buyer will not be permitted to reproduce such offers, quotations and other documents, unless the User has given its prior written permission for that purpose. Nor will it be permitted to make any offer or quotation and the corresponding documents available for inspection by third parties. 3.3 If the notice of acceptance deviates even on minor points from the offer contained in the quotation, the User will not be bound to same. In that case, the Agreement will not be concluded in accordance with that deviating notice of acceptance, unless the User states otherwise. 3.4 A composite quotation will not oblige the User to supply part of the goods covered by the offer or quotation for a corresponding part of the stated price. 3.5 Any offers or quotations will not apply to follow-up orders, unless the parties have expressly agreed otherwise. Article 4 Agreement 4.1 Without prejudice to the provisions below, an Agreement will not be concluded until the User has accepted or confirmed the relevant order in writing, for which purpose the confirmation date will be decisive. The order confirmation will be presumed to reflect the Agreement fully and accurately, unless the Buyer lodges an immediate written objection. 4.2 Any supplementary agreements or amendments will be binding on the User only if same have been confirmed by it in writing. 4.3 In the event of transactions in respect of which, in view of their nature or scope, no offer or order confirmation has been sent, the invoice will be presumed to reflect the Agreement fully and accurately, unless a complaint is lodged by the Buyer within three working days. An Agreement will also be presumed to have been concluded as a result of the actual performance of the order, for instance as the result of the supply of goods, 4.4 All Agreements will be entered into by the User subject to the condition precedent that the Buyer at our exclusive discretion appears to be sufficiently creditworthy to fulfil its financial obligations under the Agreement. 2

3 4.5 Either upon or following the Agreement s conclusion, the User will be entitled, before commencing or continuing the Agreement s performance, to request security from the Buyer for the fulfilment of its payment and other obligations. 4.6 The User will be entitled, if it considers this necessary or appropriate for the proper performance of the order placed with it and after consulting the Buyer, to engage third parties for the Agreement s performance, the costs of which will be charged on to the Buyer in accordance with the quotations issued. Article 5 Prices 5.1 Unless stated otherwise, the prices will be: - based on delivery ex works, warehouse or other storage space; - exclusive of Dutch VAT, import charges and duties, other taxes, levies and duties; - exclusive of the costs of packaging, loading and unloading, transport and insurance; and - stated in euros; any currency fluctuations will be passed on. 5.2 In the event of an increase in one or more price-determining factors, the User will be entitled to increase the order prices accordingly, with due observance of any relevant statutory provisions, on the understanding that any future price increases already known to it must be mentioned in the order confirmation. 5.3 In the event of an increase in one or more of the cost-price determining factors, early delivery may be effected in the event of an agreed on-call order, further to a written request to that effect from the Buyer, at the prices that apply on the date of the early delivery, on the condition that the goods to be supplied can be supplied from stock at that time. Article 6 Performance of the Agreement 6.1 The User will perform the Agreement to the best of its knowledge and ability. 6.2 If and insofar as required for the satisfactory performance of the Agreement, the User will be entitled to have third parties perform certain work. 6.3 The Buyer shall ensure that all data which the User indicates are necessary or which the Buyer should reasonably understand are necessary for the Agreement s performance are made available to the User on time. If the User is not provided with the information necessary for the performance of the Agreement in time, it will be entitled to suspend performance of the Agreement and/or to charge the Buyer the additional costs arising from the delay in accordance with the usual rates. 6.4 The User will not be liable for damage, of whatever nature, resulting from the fact that the User has operated on the basis of incorrect and/or incomplete data provided by the Buyer, unless the User should have been aware of this incorrectness or incompleteness. 6.5 If it has been agreed that the Agreement will be performed in phases, the User may postpone performance of those parts belonging to a subsequent phase until the Buyer has approved the results of the preceding phase in writing. 3

4 6.6 If work is performed by the User or by third parties engaged by the User on site at the Buyer or at a location designated by the Buyer in the context of the assignment, the Buyer will provide any facilities reasonably required by the User s employees or by those of the relevant third party free of charge. 6.7 The Buyer shall indemnify the User against any claims of third parties that may incur damage in connection with the performance of the Agreement and which is attributable to the Buyer. Article 7 Delivery, passage of risk and cancellation 7.1 From the time that the Agreement is concluded, the Buyer will bear the risk relating to the purchased goods. Delivery will be made to the Buyer s establishment, unless otherwise agreed. 7.2 Delivery will not be effected carriage paid, unless otherwise agreed with the Buyer or unless a different arrangement is specified in the invoice or other documents. 7.3 The Buyer will be obliged to take delivery of the goods at the time that the User delivers same to it or has same delivered to it by third parties, or at the time at which the goods are made available to it pursuant to the Agreement. 7.4 If the Buyer refuses to take delivery of the goods or fails to provide information or instructions necessary to effect the delivery, the User will be entitled to store the goods at the Buyer s expense and risk. The Buyer will not be released from its obligations in terms of investigations and complaints. 7.5 The User will be permitted to deliver cash on delivery (C.O.D.). 7.6 If the User requires information from the Buyer in the context of the Agreement s performance, the delivery period will commence after the Buyer has made such information available to the User. 7.7 If the User has stated a delivery period, such delivery period must be considered indicative. A stated delivery time may therefore never be deemed to be a firm deadline. If a term is exceeded, the Buyer must give the User written notice of default. 7.8 The User will be entitled to deliver the goods in parts, unless provisions to the contrary have been laid down in the Agreement or such partial delivery would not have any independent value. The User will be entitled to invoice such deliveries separately. 7.9 If the Buyer cancels an Agreement with the User, the Buyer will owe the User a penalty equal to 10% of the invoice amount relating to the Agreement, without prejudice to the User s right to full damages and compensation of lost profits. Any damage and lost profits will be calculated by the User on the basis of actual cost The Buyer will unload the goods together with the User. The Buyer shall ensure that a suitable location is available for delivery and that same is accessible. If the Buyer remains in default in this respect, any additional costs incurred by the User as a result will be borne by the Buyer. 4

5 Article 8 Transport and transport risk 8.1 If the Buyer has issued no further instructions to the User, the manner of transport, shipment, packaging, etc. will be determined by the User with due care and diligence. Unless otherwise agreed, the Buyer will assume all risks, including the risk of any negligence or omission on the carrier s part. 8.2 Any specific wishes of the Buyer regarding the transport/dispatch will be performed only if the Buyer has declared that it will bear the corresponding additional costs. 8.3 The User will be entitled to charge an amount for sustainable packaging materials, which amount will be specified in the invoice. If the User charges the Buyer such an amount, the amount will be set off following the return of the sustainable packaging materials in good condition. Article 9 Force majeure 9.1 For the present purposes, the term force majeure will be understood to mean: all circumstances outside the parties power as well as all unforeseen circumstances due to which the other party may no longer reasonably require the User to perform the Agreement. 9.2 If the User is of the opinion that the situation of force majeure will be of a temporary nature, the User will be entitled to suspend performance of the Agreement until the situation of force majeure has ceased to exist. 9.3 If the User is of the opinion that the situation of force majeure is of a permanent or very long-term nature, the parties may effect an arrangement providing for the dissolution of the Agreement and its consequences. 9.4 The User will be entitled to demand payment for the performances delivered under the relevant Agreement before the situation of force majeure first occurred. 9.5 The party that believes that it is or will find itself in a situation of force majeure must so inform the other party immediately. Article 10 Inspection and complaints 10.1 The Buyer will be obliged to inspect the supplied goods, or have third parties inspect same, at the time of delivery/transfer, though in any event within as short a term as possible. In so doing, the Buyer must investigate whether the quality and quantity of the delivered goods correspond with the agreements made, or in any event meet the requirements expected in that respect in standard business practice In the event of any visible defects and/or damage, the Buyer must make note of this on the consignment note, invoice and/or the shipping documents. If this is not possible, any visible defects should be reported to the User within three days of delivery. Any invisible defects should be reported within eight days of their discovery. Complaints should be lodged together with a precise specification of the nature of and reasons for the relevant complaints. 5

6 10.3 If a timely complaint has been lodged in accordance with the preceding paragraph, the Buyer will remain obliged to take delivery of and pay for the purchased goods. If the Buyer wishes to return defective items, this may only be effected following written permission from the User, in the manner indicated by the User The User should be offered the opportunity to inspect the goods delivered within eight days of the complaint having reached the User In the event of complaints, the goods delivered should remain unprocessed and unaltered, unless the defects and/or damage could not have been discovered until such processing or alteration Any complaints regarding invoices should be lodged in writing within eight days of the invoice date Any incorrect or untimely complaints will not be handled If the User finds a complaint to be well founded, the User will be obliged only to deliver the agreed performance as yet, or to refund the purchase price paid, at the User s exclusive discretion, without being able to be held liable for any damage by the Buyer in that respect. A complaint will in any case be considered unfounded if the relevant defect has arisen as a result of inexpert or improper use or if, without the User s written permission, the Buyer or third parties have made or tried to make alternations in respect of the good or have used same for purposes of which it is not intended If the User finds the complaint to be well founded, the Buyer s payment obligation will be suspended until the complaint has been settled The goods delivered may be returned only after the User has granted its written permission and subject to any reasonable conditions set by the User. Article 11 Samples and models If the Buyer has been shown or provided with a sample or model, same will be assumed to be provided as an indication only, without the good having to correspond to same, unless it has been expressly agreed that the good will correspond. Article 12 Retention of title 12.1 Any goods supplied will remain the User's property until all deliveries made or to be made and work performed or to be performed by the User pursuant to the Agreement have been paid for by the Buyer, including any interest and costs. If the Buyer is granted a suspension of payments, is declared bankrupt, is wound up or, if the Buyer is a natural person, dies, the User will be entitled to fully or partially cancel the order without any notice of default or judicial intervention being required and to claim back the part of the supplied goods for which no payment has been made. Cancellation and recovery will not prejudice the User's right to compensation for loss or damage. In such cases, all the User's claims vis-à-vis the Buyer will become immediately and fully due and payable The goods may be used or resold by the Buyer in the context of its normal business operations, but may not be pledged or be used as security for any claims of third parties. 6

7 12.3 As security for proper payment of all its claims on whatever basis against the Buyer, the User will furthermore acquire a non-possessory pledge by the existence of the claim on all those goods in which the materials supplied by the User have been processed, or of which they are part. The order signed by the Buyer and the subsequent written acceptance by the User will be considered a private deed as referred to in the law Pursuant to its mere receipt of the goods, the Buyer will be presumed at that time to tacitly grant the User the irrevocable authorisation to recover the goods or have others do so from any location as long as the Buyer has not entirely fulfilled its payment obligations. In such cases, the Buyer shall grant the User the irrevocable authorisation to access any such location for that purpose. Article 13 Payment, dissolution by the User and exigibility 13.1 Unless agreed otherwise in writing, payment should be made in cash upon delivery, without discount, or by means of payment into or transfer to a bank or giro account designated by the User, within 30 days of the invoice date. The value day stated in the User s bank or giro statements will be decisive and will therefore be considered the date of payment Unless otherwise agreed in writing, the following payment terms will apply to all orders to an amount of EUR 1,500 or more (exclusive of Dutch VAT): - 1/3 of the purchase price in cash or in the account; - 1/3 of the purchase price upon the goods delivery; and - 1/3 within 30 days of the invoice date All payments made by the Buyer will first serve to settle any interest and any collection costs incurred by the User and subsequently to settle the oldest outstanding invoices If the Buyer: a. is declared bankrupt, assigns its assets, is granted a provisional suspension of payments, it is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], or if attachment is levied on all or part of its property; b. dies or is placed under guardianship; c. fails to fulfil any of its obligations pursuant to law or these Terms and Conditions; and/or d. fails to pay an invoice amount or a part thereof within the term set for that purpose; the User will be entitled, by the mere occurrence of one of the said circumstances, to dissolve the Agreement, or to demand full and immediate payment of any amount owed by the Buyer for services rendered by the User, without any warning or notice of default being required, without prejudice to the User's right to compensation of costs, damage and interest. Article 14 Interest and costs 7

8 14.1 If payment is not made within the term specified in the preceding Article, the Buyer will be in default by operation of law and will owe interest on the outstanding amount at a rate of 1% per month or part of a month as from the invoice date Any judicial and extra-judicial costs incurred will be charged to the Buyer. The extra-judicial collection costs will be fixed at at least 15% of the amount owed by the Buyer, including the said interest. Article 15 Liability and warranty 15.1 The User warrants that the goods to be supplied will meet the usual requirements and standards which may be imposed in respect of same and are without defects The warranty referred to in 15.1 will also apply if the goods to be supplied are intended to be used abroad and the Buyer explicitly notified the User of this intended use in writing at the time of the Agreement s conclusion The warranty issued by the User in 1. will be limited to the warranty issued by the good s manufacturer for such goods If the Buyer could have taken out insurance covering the consequences of any damage arising from this Agreement, or if such consequences are normally insured by buyers in the relevant industry, the User will not be liable under any circumstances If the User is liable for direct damage, that liability will be limited to the amount paid out by its insurer, or in any case to the invoice amount, or in any case that part of the Agreement to which the liability relates. The User s liability for direct damage will at all times be limited to the maximum amount of EUR 1,134,450. Any insurance agreements concluded by the User with insurers will not release the Buyer from taking out sufficient insurance in the same manner Direct damage will be limited to: - the reasonable costs incurred in assessing the cause and scope of the damage, to the extent that such assessment relates to damage within the meaning of these Terms and Conditions; - any reasonable costs incurred in order to ensure that the User s defective performance conforms to the Agreement, unless this defective performance cannot be attributed to the User; and - the reasonable costs incurred in order to prevent or limit damage, to the extent that the Buyer demonstrates that such costs have resulted in the limitation of direct damage as referred to in these General Terms and Conditions The User will under no circumstances be liable for indirect damage, including consequential damage, loss of profits, loss of savings or any damage due to an interruption in business operations The User will not compensate the Buyer for any damage arising from the improper use, use for which the goods supplied are not intended or inexpert use of the goods supplied. 8

9 15.9 The Buyer shall indemnify the User against any claims of third parties that may incur damage in connection with the Agreement's performance and which damage is attributable to the Buyer Any claims for damages resulting from the above should be reported to the User, by means of a registered letter, within seven days of arising or as much earlier as the Buyer could have become aware of the damage, on pain of any claims for damages on the Buyer s part lapsing The Buyer should take every action that may prevent, limit, remedy or remove damage, in default of which the Buyer will be liable for any damage that may arise as a result The limitations of liability with respect to direct damage laid down in these Terms and Conditions will not apply if the damage is the result of an intentional act or omission or gross negligence on the User's part of on that of its employees. Article 16 Intellectual property, copyrights and indemnification 16.1 Without prejudice to the provisions of these General Terms and Conditions, the User reserves the rights and powers vested in it pursuant to the Dutch Copyright Act [Auteurswet] The Buyer will not be permitted to modify goods, unless the contrary follows from the nature of the goods supplied or has been agreed in writing Any designs, sketches, drawings, films, software and other materials or electronic or other files created by the User in the context of the Agreement will remain the User's property, irrespective of whether same have been made available to the Buyer or to third parties, unless the contrary has been agreed All documents and items made available by the User, such as designs, sketches, drawings, films, software, electronic and other files, etc., are intended for use by the Buyer only, and may not be reproduced, made public or disclosed to third parties by the Buyer without the User's prior permission, unless the contrary ensues from the nature of the documents The User will retain the right to use any knowledge acquired during the performance of the work for other purposes, to the extent that this does not involve making confidential information available to third parties If the Buyer furnishes any data, materials or other items, it will guarantee that the Buyer s use of same will not cause the Buyer to violate any statutory provisions or protected rights of third parties, and the Buyer will indemnify the User against any claims of third parties based on such statutory provisions or those third parties protected rights If the Buyer furnishes the User with information carriers, electronic files, software, etc., the Buyer will guarantee that those items will be without viruses and other defects. Article 17 Return of goods made available 17.1 If the User has made goods available to the Buyer in the context of the performance of the Agreement, the Buyer will be obliged to return such goods to the User within 14 days in 9

10 their original condition, free from defects and complete. If the Buyer fails to perform this obligation, all ensuing costs will be for its account If the Buyer, for whatever reason, following a letter demanding performance, remains in default of performance of the obligation mentioned in paragraph 1, the User will be entitled to recover any ensuing damage and costs, including the costs of replacement, from the Buyer. Article 18 Secrecy 18.1 Both parties will be obliged to observe secrecy with respect to all confidential information which they may have obtained from one another or from another source in the context of the Agreement. Information will be considered confidential if it has been designated as such by the relevant party or if its confidential nature ensues from the nature of the information If the User is obliged pursuant to a statutory provision or a judicial decision to provide third parties designated by law or by the competent court with confidential information and the User is unable to invoke a right to decline to give information acknowledged or allowed by law or by the competent court, the User will not be obliged to compensate the Buyer or pay it damages and the Buyer will not be entitled to dissolve the Agreement on the basis of any damage that may have arisen as a consequence. Article 19 No takeover of staff During the Agreement's term and for one year after its end, the Buyer shall refrain from hiring in any way, except following proper consultations with the User on this point, the User's employees or employees of enterprises engaged by the User for purposes of the performance of the Agreement and which are or have been involved in its performance, or from having such persons work for it, directly or indirectly, in any other way. Article 20 Disputes 20.1 All disputes, including those regarded as such by only one of the parties, ensuing from or relating to the Agreement to which these Terms and Conditions apply, or relating to these Terms and Conditions or their interpretation or implementation, be they of a factual or a legal nature, will be settled by the competent court in the District where the User is established The User will nevertheless be entitled to have any dispute settled by an arbitration board or to submit same to the District Court that is competent pursuant to the Dutch Code of Civil Procedure [Wetboek van Burgerlijke Rechtsvordering]. Article 21 Applicable law All Agreements between the User and the Buyer will be governed by Dutch law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded. 10