ARTITEC WALLEBROEK GENERAL CONDITIONS OF SALE
Filed with the Chamber of Commerce under number 20037106 on 16-01-2019
DEFINITIONS
In this Agreement, the following concepts have the meaning set out behind them unless the context requires otherwise:
'Business Day' means a day (with the exception of Saturday and Sunday) on which banks in the Netherlands are usually open to perform normal banking transactions;
'Buyer' means the natural person to whom or legal entity to which the Seller addresses its offers, sells and supplies goods and/or services and any representative(s), authorised person(s), legal successor(s) and/or heirs of them;
'Conditions' means the conditions of sale herein described, (unless the context requires otherwise) including any special conditions agreed in writing between the Buyer and the Seller;
'Agreement' means the Agreement entered into between the Seller and the Buyer for the sale and supply of goods and/or services or the availability of goods on the Seller's premises or other agreed premises from where the Buyer collects the goods;
'Products' means the goods and/or services to be supplied by the Seller in accordance with these Conditions (including any partial deliveries or product parts and/or services to be supplied);
'Minimum Order' means the minimum number of Products per order determined by the Seller at any time;
'Seller' means Artitec Wallebroek B.V.
1. GENERAL
1.1. These Conditions apply to all offers, quotations, legal relationships and agreements for the sale and/or supply of Products and/or services by the Seller unless the Seller and the Buyer agree otherwise in writing. Any additional (oral) agreements and/or undertakings made in consequence by or on behalf of the Seller are binding only if expressly confirmed in writing by the Seller.
1.2. Applicability of any (general) terms of purchase and delivery in use by the Buyer is hereby expressly excluded.
1.3. These Conditions are also applicable to other Agreements, including follow-up and additional Agreements to which the Buyer and the Seller or any legal successor(s) of them are party.
1.4. The Seller has the right to amend and/or supplement these Conditions.
2. BASIS OF SALE
2.1. All quotations are without obligation unless they specify a term for acceptance by the Buyer. If a quotation includes an offer without obligation and is accepted, the Seller has the right to withdraw the offer within two days of receiving acceptance.
2.2. Agreements and/or undertakings made orally and/or by telephone are binding only if expressly confirmed in writing by the Seller.
2.3. If the Buyer follows or acts upon any advice or recommendation of the Seller or any of its employees or representatives, that is done at the Buyer's sole risk unless the advice or recommendation is confirmed in writing by the Seller.
2.4. The Seller reserves the right to correct any mistake and/or clerical error in sales documentation, any price list, quotation (or the acceptance of it), offer, invoice or any other documents or details provided by the Seller. No liability will be accepted for mistakes and/or clerical errors. The Seller cannot be held to its offer if a mistake or clerical error was made in the offer and/or the quotation or any part of it or them.
2.5. Equipment, drawings, designs, samples, descriptions, images and similar items and schedules and documents are part of the Seller's quotations. Those items and any tools manufactured by the Seller in relation to them remain the Seller's property, must be returned to the Seller at its request and may not be copied and/or made available to third parties without the Seller's express written permission. The Seller reserves any and all intellectual property rights that may exist.
3. FORMATION OF AGREEMENT AND SPECIFICATIONS
3.1. The Buyer is responsible for ensuring that the details in the order placed and/or application made by the Buyer (including any applicable specifications) are correct and that all the information needed in relation to the Products is received by the Seller in time to allow the Seller to perform the Agreement in accordance with the provisions set forth therein.
3.2. The Agreement arises by the Seller's written confirmation of an order and/or assignment or by the Seller initiating the delivery of the Products. Upon oral acceptance by the Buyer of an offer and/or quotation made by the Seller, the Agreement does not arise until the Seller acts upon it by effectively initiating performance or confirming the Agreement in writing.
3.3. To the extent that the Buyer renders any performance or makes preparations for that purpose in the apparent expectation that an Agreement will arise or the apparent assumption that an Agreement has arisen, the Buyer does so entirely at the Buyer's expense and risk.
3.4. Each Agreement is entered into under the condition subsequent of the relevant Products being available in sufficient numbers.
3.5. If a dispute arises over the quantity, quality, price and description of the Products, the Seller's quotation and order confirmation will be decisive.
3.6. The Seller reserves the right to amend the specifications of the Products whenever necessary to comply with applicable safety regulations or other requirements set by law and/or regulations or, if the Products are supplied as per the Seller's specifications, those amendments have no material effect on the quality and functionality of the Products.
3.7. Agreements accepted by the Seller cannot be cancelled by the Buyer otherwise than with the Seller's written approval, in which case the Buyer agrees to pay or compensate the Seller for the damage, loss, costs and (needlessly incurred) expenses due to the cancellation.
4. PRODUCT PRICE
4.1. The price of a Product is the price quoted by the Seller, or if no price was quoted or the quoted price is no longer valid, the price according to the Seller's price list in force on the date on which the Agreement arises. Unless otherwise agreed in writing, all quoted prices stand for a period of 30 days only. After that term, the Seller may adjust the prices without notice to the Buyer.
4.2. If one or more cost price factors increase after the date on which the Agreement arises, whether or not due to foreseeable circumstances, the Seller is entitled to increase the agreed price accordingly. If a price increase exceeds 15% of the invoice amount, the Buyer may dissolve the Agreement in writing only with regard to the goods affected by the price increase, within 2 (two) Business Days of receiving the notice of the price increase. The Buyer will not be eligible for reimbursement of any loss in that case and the Seller will only be obliged to refund the part of the Agreement affected by the dissolution that was already paid by the Buyer.
4.3. The Seller reserves the right to increase the price by notification to the Buyer prior to delivery of the Products if the Seller incurs higher costs due to changes required by the Buyer in delivery dates, quantities or specifications of the Products, a delay arising from instructions given by the Buyer or failure of the Buyer to provide adequate details or instructions to the Seller.
4.4. The method of packaging, transport and insurance is determined by the Seller. Any deviation from the method determined by the Seller for packaging, transport and insurance at the request of the Buyer will be the account and risk of the Buyer and will be possible only with the Seller's prior written acceptance.
4.5. The price is exclusive of order costs, transport costs, assembly costs, operational costs, import and export duties, stamp duties, clearance fees, VAT and/or other statutory levies which, if due, will be charged separately to the Buyer.
5. PAYMENT CONDITIONS
5.1. Payment must be made within 30 (thirty) days of the invoice date unless otherwise agreed in writing. Payment terms are deemed to be of the essence, and after they expire, default arises by operation of law.
5.2. Subject to any special conditions agreed between the Buyer and the Seller, the Seller is entitled to charge the price of the Products to the Buyer upon delivery, unless the Products are collected by the Buyer or the Buyer unjustifiably failed to take delivery of the Products, in which case the Seller is entitled to charge the price to the Buyer at any time after the Seller informs the Buyer that the Products are ready for collection or after the Seller tenders delivery of the Products.
5.3. The Seller is entitled to require the full invoice amount to be paid in advance under an Agreement with the Buyer.
5.4. The Buyer must pay the price for the Products in the agreed currency within the payment term specified in Article 5.1 of these Conditions even if delivery has not taken place and title to the Products has not passed to the Buyer, or the Buyer relies on defects. Payment terms are deemed to be of the essence for the purposes of the Agreement. A payment receipt is provided only upon request.
5.5. Payments are consistently applied towards costs and interests first (in that order) and subsequently towards the principals, with those longer outstanding going before newer ones.
5.6. If the Buyer fails to make payment on time or at all, the Seller is entitled to suspend its obligations under the Agreement, and the Buyer will, by operation of law, owe interest, which will be due immediately at a rate of 8.5% of the outstanding amount per month from the final day on which payment should have been made to the Seller until the date of payment in full, for which purpose a part of any month that has begun will be regarded as a full month. If the Buyer still fails to pay the claim, the Seller may assign the claim at its discretion at any time, in which case the Buyer will, in addition to the amount due and the interest, be obliged to pay all actual judicial and extra-judicial costs and collection costs or a fixed amount set at 15% of the relevant invoice amount, with a minimum of EUR 1,000. All of this will be at the Seller's discretion.
5.8. The Buyer is not permitted to rely on any right of suspension and/or retention, nor to apply any discount, reduction or set-off. The Buyer irrevocably and unconditionally waives those rights.
6. DELIVERY
6.1. Delivery of the Products is made by the Seller to the place of delivery agreed between the Seller and the Buyer and is made on a Business Day. The method of transport is determined by the Seller at its discretion. The Seller is not obliged to chose a different method of transport if there are any obstacles or problems with the method of transport of its choice. The Seller is in no way liable in the event of cancellation of the means of transport.
6.2. Unless otherwise agreed in writing, the Products will be delivered within a delivery term of 14 (fourteen) days after the Agreement arises. All delivery terms are target terms. The Seller is entitled to deliver within a reasonable additional term set by the Buyer in writing after the original delivery term. The reasonable additional term will be at least 4 (four) calendar months. If the Seller still fails to deliver within the reasonable additional term, the Buyer will be entitled to terminate the Agreement by registered letter with respect to the non-performed part only. In that case, the Buyer will not be eligible for any reimbursement of loss and the Seller is only obliged to refund the amount that the Buyer has already paid for the non-performed part. The Buyer does not have the aforesaid right of termination in the event of default by the Buyer.
6.3 Alternatively, the Seller may deliver the Products before the quoted delivery date. The Buyer will be informed accordingly in advance within a reasonable term.
6.4. The Seller has the right to deliver the Product in parts, which partial deliveries it may invoice separately. In the event of the Products being delivered in parts, each delivery will be regarded as an individual agreement, and the Buyer will not be entitled to terminate the entire Agreement if the Seller fails to deliver one or more partial deliveries or if the Buyer alleges to have a claim against the Seller in respect of one or more partial deliveries.
6.5. If the Buyer fails to take delivery of the Products or if the Buyer fails to provide delivery instructions to the Seller in time before the date of delivery (unless due to circumstances that are reasonably beyond the Buyer's control or that are to be held against the Seller), the Seller, without prejudice to its other rights and remedies, will have the right to:
6.5.1 to store the Products until they can be actually delivered and to charge the reasonable costs of storage (including insurance) to the Buyer; or
6.5.2 to sell the Products at the highest possible price at the time and if that price exceeds the price agreed in the Agreement, to pay the surplus (upon deduction of all storage and sales costs) to the Buyer or to charge any deficit in respect of the invoice amount to the Buyer.
6.6. Blanket orders are binding upon written acceptance by the Seller and must be called within the term agreed between the Buyer and the Seller.
7. RISK AND RETENTION OF TITLE
7.1. The risk of the Products passes to the Buyer:
7.1.1. If delivery of the Products is made on the Seller's premises (ex warehouse): when the Seller informs the Buyer that the Products are ready for collection; or
7.12. if delivery of the Products is not made on the Seller's premises: on delivery to the address provided by the Buyer or if the Buyer unjustifiably fails to take delivery of the Products, when the Seller tender delivery of the Products.
7.2 The Seller retains title to the Products delivered until all amounts have been paid in full to the Seller that are due by the Buyer for the Products delivered and/or related services provided under the Agreement or for any failure of the payment obligations by the Buyer. As long as title to the delivered Products has not passed to the Buyer, the Buyer may not encumber the Products, transfer title to them or grant third parties any right to them, subject to the provisions of the following paragraph.
7.3. The Buyer is allowed to sell and deliver the Products that are subject to retention of title to third parties in the ordinary course of the Buyer's business. The Buyer is obliged to store delivered Products that are subject to retention of title separately, with due care, as identifiable property of the Seller and is also obliged to impose that obligation on any third parties to which the Buyer has sold Products that are subject to retention of title.
7.4. If the Buyer fails to comply with the provisions of the previous paragraph, goods present that are of the same type as those supplied by the Seller will be assumed to belong to the Seller.
7.5. If any third party lays claim to any Products delivered subject to retention of title, for example, by an attachment, suspension of payments or in the event of bankruptcy, the Buyer will be obliged to promptly inform the Seller accordingly.
7.6. The Buyer is obliged to take out insurance against the risk of fire and explosion, water damage and theft for delivered Products while they are subject to retention of title, and the Seller will be allowed to inspect the insurance policy at its first request.
7.7. The Buyer is obliged, at the Seller's first request:
7.7.1 to pledge or assign all claims of the Buyer against insurers in relation to the Products delivered subject to retention of title to the Seller, all of the foregoing at the Seller's discretion; and
7.7.2. to pledge or assign the claims that the Buyer acquires on customers when the Buyer sells Products delivered subject to retention of title to the Seller, all of the foregoing at the Seller's discretion;
7.8. In any instance of default by the Buyer, which will include any failure in the fulfilment of any obligation under these Conditions, and any instance in which the Seller has well-founded misgivings over the Buyer's ability to fulfil its obligations, the Seller will be entitled to take back the Products delivered from the Buyer or any third party holding the Products for the Buyer, without any further notice being required. The Buyer is obliged to lend every cooperation for that purpose on pain of a penalty due on demand and capable of being set off of 10% of the amount due by the Buyer on that date for each day that the Buyer refuses to cooperate.
7.9. The Buyer authorises the Seller and grants the Seller prior permission to enter its grounds and buildings in order to exercise its retention of title.
8. WARRANTY AND COMPLAINTS
8.1. Subject to the provisions set forth below, the Seller warrants that the Products will meet the specifications at the time of delivery and further warrants that the Products will be free from defects in material or workmanship for a period of 12 (twelve) months after delivery.
8.2. The Buyer is obliged to ensure that the goods are inspected promptly on delivery. If the delivered Products are found to be incorrect, faulty or incomplete, the Buyer must report any visible defects or incorrectly delivered Products that are noticed on reasonable inspection to the Seller in writing and must do so immediately and in any event within a period of three (3) days after delivery. Any nonvisible defects must be reported in writing to the Seller within a period of thirty (30) days after delivery. The foregoing is subject to forfeiture of the right to complain.
8.3. Commissioning, encumbering and/or reselling delivered Products after finding defects, imperfections or damage will completely invalidate the right to complain.
8.4. The Seller is never responsible for the eventual suitability of the delivered Products for any individual application by the Buyer, or for any advice regarding the use or application of the delivered Products.
8.5. Minor deviations in quality, colour, size of the delivered Products cannot be grounds for a complaint.
8.6. If the complaint of the Buyer regarding a delivered Product is well-founded and falls within the warranty term, the Seller will, at its choice:
8.6.1. have the delivered Products or, if possible, the defective part, repaired or replaced (by a repairer designated by the Seller); or
8.6.2. enter into a written settlement for damages with the Buyer, on the understanding that the amount of damages will always be limited to the invoice amount of the relevant (defective) Products. However, the Seller's liability will always remain within the limits provided in Article 10 of these Conditions.
8.7. The warranty of Article 8.1 of these Conditions always ceases to apply if:
8.7.1. The delivered Products are repaired and/or engineered by the Buyer or third parties on behalf of the Buyer.
8.7.2. the defects are due to normal wear and tear;
8.7.3. the delivered Products were exposed to unusual conditions or were otherwise treated without due care and/or contrary to the instructions given by the Seller and/or stated on the packaging or labels of the Products;
8.7.4. the faultiness is due, wholly or partly, to requirements set to be set by the government regarding the nature or quality of the materials applied.
8.8. Returns may be made only after the Seller has granted written permission and only in accordance with the Seller's instructions. The Seller reserves the right to refuse any return that is not offered in the required manner. The return will not be taken into consideration in that case and will be sent back at the Buyer's expense.
8.9. Unless otherwise agreed in writing, transport for repair or replacement will be at the Buyer's expense and risk.
8.10. Failure of the Buyer to fulfil one or more of its obligations under the Agreement of these Conditions does not release the Seller from all warranty obligations.
9. TOOLING COSTS
9.1. Only shares of tooling costs are computed, in principle, which are separate from the value of the goods. By paying a share of tooling costs, the Buyer does not acquire the right to lay claim to the tools; They remain the property of and in possession of the Seller. The Seller is obliged to keep the tools one year after the most recent delivery for the Buyer. If the Buyer advises within that term that it will place orders in the next year, the term will be extended by another year. After that term and if no further orders are placed, the Seller may dispose of the tools at its discretion.
9.2. Tooling costs incurred without orders placed: If orders are cancelled at the development stage (due to design or modification issues) or in the lead period, the Seller reserves the right to charge the costs incurred. Upon cancellation before the release of samples, the costs will be charged for the first tool-kit and upon cancellation after the release of samples, depending on the expected monthly requirement, the costs will be charged of the entire series of tools, special provisions and moulds.
9.3. The tools processed and charged will remain available for inspection for four weeks and will be reduced to scrap after that term. Schedules and engineering drawings of the tools are not disclosed to protect the processes applied.
10. LIABILITY
10.1. The liability of the Seller, of its authorised representatives and employees and of third parties hired by the Seller, is always limited to the payout made in the relevant case under the Seller's relevant (business) liability policy, increased by the amount of the Seller's uninsured 'own risk' according to the applicable policy conditions. The amount currently insured by the Seller for financial loss is EUR 2.500.000,= per claim with a maximum of EUR 5.000.000,= per year. If, for any reason whatsoever, no benefit is paid under the relevant policy, the Seller's liability, if any, will always be limited to the amount that the Buyer paid to the Seller under the Agreement or the part of it in connection with which the liability arose and will in no event exceed EUR 2.000,=.
10.2. The Seller will never be liable for indirect loss, including without limitation, consequential loss (to persons or property), business loss, loss of profits or revenue, loss of savings and/or loss arising from business interruption.
10.3. The Seller is not liable for damage and/or loss of any nature whatsoever caused by third parties hired by the Seller and/or materials that it uses.
10.4. The Seller is not liable for loss of any nature whatsoever due to incorrect and/or incomplete drawings, designs, samples, instructions or other details provided by or on behalf of the Buyer or persons or property made available by the Buyer.
10.5. In all cases in which the Seller can rely on the provisions of Article 10 of these Standard Terms, any employee(s) and subcontractor(s) held liable can also rely on this article as if this Article 10 had been stipulated by the relevant employee(s) and subcontractor(s).
11. INDEMNITIES
11.1. The Buyer indemnifies the Seller against all possible claims of third parties in connection with the performance of the Agreement, in particular claims of third parties regarding Products that the Seller supplied to the Buyer, including claims of third parties arising from product liability, due to which that third party may have incurred damage and/or loss, regardless of the nature, cause or time that it
occurred.
11.2. The Buyer is obliged to assist the Seller, at the expense of the Buyer, both in court and out of court, if the Seller is held liable by a third party as referred to in the previous paragraph and to promptly do whatever the Buyer may be expected to do in that case.. If the Buyer fails to adopt adequate measures, the Seller may adopt them after giving notice of default. All costs incurred by the Seller as a consequence will integrally be for the account of the Buyer.
11.3. The indemnities provided to the Seller by the Buyer under these Conditions are equally applicable to group companies of the Buyer.
11.4. Before the agreement arises, the Buyer is obliged to take out adequate business liability insurance ('AVB') with a minimum cover of EUR 2,000,000 per claim, of which the policy may be inspected by the Seller at its first request.
12. FORCE MAJEURE
12.1. In the event of force majeure, the Seller has the right to suspend its obligations under the Agreement and to dissolve the Agreement, wholly or partly, or to claim that the terms of the Agreement be amended so that performance remains possible. In no event will the Seller be obliged to pay any penalty or damages.
12.2. Force majeure means any extraordinary cause and any condition that should reasonably not be at the Seller's risk. Force majeure expressly includes any delay, negligence or non-performance by suppliers and/or auxiliary persons of the Seller, Internet failure, power failure, e-mail failure and failure or change in technology supplied by third parties, transportation problems, strikes, government measures, delays in supply, sickness of staff, defects of equipment or means of transport.
12.3. If the Seller has already fulfilled part of its obligations or is able to fulfil only a part of its obligations due to the occurrence of force majeure, it is entitled to invoice the delivered or deliverable part separately, and the Buyer will be obliged to pay that invoice as if a separate Agreement were involved. However, this does not apply if the part delivered or still to be delivered has no independent value.
13. INTELLECTUAL AND INDUSTRIAL PROPERTY
13.1. Unless otherwise agreed in writing, the Seller retains all absolute intellectual rights (including copyrights, patents, trademark rights, drawing and design rights, etc.) to all its Products, designs, drawings, documents, data carriers, offers, images, sketches, designs, etc..
13.2. Without the Seller's express written permission, the rights referred to in the previous paragraph may not be copied, be shown to third parties and/or made available or used in a manner other than agreed with the Seller and/or for a purpose other than for which a right of use is granted or for which hey were provided.
13.3. In the event of customisation work, including Products manufactured specifically for the Buyer, the Seller is unconditionally authorised to suspend the manufacture and/or supply immediately if any third party objects to the manufacture and/or supply of those Products in reliance on an alleged right. In that case, the Buyer is obliged to pay the full costs incurred by Seller, without prejudice to the Seller's right to damages and without the Buyer having any right to damages from the Seller.
13.4. The Buyer is obliged to keep all confidential information that the Seller provides to it or any of its subordinates confidential. 'Confidential information' includes in any event everything referred to in the first paragraph as well as business information of the Seller.
14. TERMINATION OF AGREEMENT
14.1. If the Buyer is in default of any obligation under the Agreement or these Conditions, or any of the following situations applies to the Buyer: bankruptcy (or bankruptcy application), suspension of payments, admission under the (Dutch) Debt Restructuring (Natural Persons) Act, occupational disability, strike, attachment, business acquisition and/or merger or death, all claims of the Seller against the Buyer fall due immediately and the Seller has the right to terminate or dissolve the Agreement in writing. In that case, the Seller is entitled to be paid the full invoice amount, less the (direct) costs that it saves due to the termination. The Buyer is not eligible for reimbursement of any loss in such case.
15. MISCELLANEOUS PROVISIONS
15.1. All notifications of the Buyer to the Seller for the purpose of an Agreement or these Conditions must be given in writing to the Seller's registered address or headquarters or to any other address that the Seller may provide at any time in accordance with the provisions of this Article.
15.2. No waiver of the Seller of any of its rights upon a breach of the Agreement by the Buyer will constitute a waiver of the Seller's rights in the event of any subsequent breach of the relevant clause or of any other clause.
15.3. If any provision of these Conditions is held to be invalid or unenforceable by a competent authority, that will not affect the validity of the remaining part of that provision or of the other provisions of these Conditions.
15.4. All Agreements that are governed wholly or partly by these Conditions are governed by Dutch law. Applicability of the United Nations Convention for the International Sale of Goods of 1980 (the Vienna Sales Convention/CISG) is expressly excluded.
15.5 All disputes relating to or arising from this Agreement will be brought before the competent court of Amsterdam unless the Seller prefers bringing the dispute before a court in the Buyer's place of residence.