ADDEV MATERIALS
AEROSPACE SAS
Ce document propriété de la société ADDEV ne peut être reproduit ou communiqué sans autorisation préalable.
3 janvier 2022
1.1.These general terms and conditions shall apply to the sales of products and associated services of the Seller, as described on websites or any business document, catalog, commercial documents and any other support.
1.2.These general conditions are intended to apply to all Clients, whether they are manufacturers, integrators, resellers, users, or other, who are presumed to have taken note of such general conditions, any order placed entailing unreserved acceptance.
1.3.They are reproduced on the Seller’s business documents or are the subject of annexes to these documents. They can also be communicated upon simple request of a potential Client.
1.4.The supply of products and associated services requiring particular services may however justify, at the request of the Seller, the conclusion of a specific contract or special conditions of sales, derogating from these general conditions of sales and associated services.
1.5.As acceptance of these conditions cannot be conditional or partial, any exemption must be subject to a prior written agreement.
1.6.These general conditions prevail over any general purchasing conditions, as well as any contradictory clause of any kind appearing on documents, the Client waiving the right to invoke them for any order placed.
2.1.The products descriptions appearing on websites, catalogs, advertisements, commercial or technical documents, as well as studies and recommendations communicated by the Seller are only indicative and do not constitute any contractual commitment.
2.2.Only offers including description and prices addressed directly to Clients bind the Seller, and this for a maximum period of 30 days, unless otherwise expressly provided for in the quoting.
2.3.The offers, studies, plans, drawings transmitted by the Seller remain his property and shall not be communicated to any third party by the Client without his consent.
2.4.The Seller retains the right to modify, at any time and without notice, the list of products sold, or to make improvements to the products and associated services.
2.5. The Client acknowledges having read the general conditions of sale and pricing conditions, either on the Seller’s website, or on his e-commerce platform, or by electronic communication by the Seller, and this before any order.
In the event of a direct order on the e-commerce platform, the Client must comply with the various validation steps provided for the orders.
3.1.An order does not become final until it has been recorded and confirmed in writing, the Seller being bound by the commitments of its representatives and agents only after express acceptance.
3.2.Any addition or modification to an order is binding on the Seller only after written confirmation.
3.3.The Seller is not required to accept orders that do not comply with the minimum order quantity and / or technical batch.
3.4.The Seller reserves the right not to accept and even to cancel an order likely to violate applicable laws and regulations, both in France and in the territory or territories in which the delivery and / or the provision of associated services is or must be carried out.
The Client waives any claim or action against the Seller on the basis of loss, damage or costs resulting from a modification or cancellation of an order by the Seller which would be made on this basis.
3.5.In the event of an order for a total amount of less than € 200, excluding tax and additional transport costs, the Seller will apply an increase for processing costs, in order to reach these € 200, except in case of an order placed online, via the e-commerce platform.
3.6. In the event of an order from a French based customer for a total amount equal or more than €1000, excluding additional transport, packaging, hazardous material declaration, incoterm terms will be Franco. Order less than 1000€ will be increased by 40€ as flat freight charge.
3.7.The Professional Client, having concluded a contract at a distance as part of his main activity, cannot benefit from the right of withdrawal provided for by the French Consumer Code.
3.8.No order shall be totally or partially canceled during execution, without the express consent of the Seller. In the event of express acceptance, the Seller reserves the right to invoice costs and disbursements incurred.
3.9.Any additional or complementary request from the Client must be subject to a written amendment to the order and gives rise to a new confirmation from the Seller.
4.1.Deliveries are made in accordance with accepted and confirmed orders, subject to quantitative tolerances.
4.2.The technical notices for the use of the products are attached during deliveries.
4.3.As delivery periods are indicative, any delay shall not give rise to order cancellation or penalties, as long as the order can be executed within a reasonable time.
4.4.Delivery periods do not start until the indications, information, as well as all the documents necessary for the execution of the orders have been transmitted to the Seller.
4.5.Delivery periods are also suspended by any delay of the Client to communicate the details necessary for the execution of the sale and the associated services; Delivery times are also suspended by any failure by the Client to meet its obligations and specifically to respect the stipulated payment deadlines.
4.6.In the event that the Client benefits from an outstanding credit, the Seller is only required to deliver the products ordered by the Client or to perform the associated services within the limit of the maximum authorized outstanding, the Seller may delay delivery until the Client outstanding level allows delivery and services to be carried out.
4.7.The Seller retains the possibility, if necessary, to partial deliveries or executions and such partial deliveries performances cannot in any circumstances justify a refusal of payment for the products and services actually delivered.
4.8.The products are delivered according to the rules of the Incoterm ICC 2020 determined by the order confirmation. If no Incoterm is provided, sales are deemed to be EXW, delivery place designated by the Seller in charge of delivery. Pursuant to the Incoterm EXW, hazardous materials declarations, transport and insurance of the products are the responsibility of the Client, the packaging being the responsibility of the Seller, unless otherwise provided. The transfer of risk takes place upon delivery, in application of the Incoterm chosen or, if no Incoterm is chosen, upon departure of the products from the premises of the concerned establishment of the Seller.
4.9.When products are made available for pick up by the Client and the removal is delayed for reasons beyond the control of the Seller, the products are stored and handled at the sole expenses and risks of the Client.
5.1.The Client must verify, upon receipt, the conformity of the products delivered to the order and in particular the quantity, quality, dimensions and weight to reserve his rights against the carrier, the freight forwarder or the forwarder, in accordance with the Article L.133-3 of the French Commercial Code. Any reservations must be mentioned on the delivery note.
5.2.If the transport is performed under the responsibility of the Seller, the Client must make all necessary reservations in this respect to preserve the Seller rights against the carrier, in particular by sending a copy of said reservations, no later than three days after delivery.
5.3.The Client may not refuse to receive the products, even in the event of partial delivery or an apparent defect.
5.4.It is up to the Client to provide any supporting documentation on the faults or defects found. He must give the Seller every facility to proceed to the ascertainment of observed faults and defects and take the appropriate measures to remedy them.
6.1.The return of products cannot take place without the prior written consent of the Seller.
6.2.All returns must be accompanied by supporting documents allowing the Seller to determine the origin and causes of the returns.
6.3.In the event of a justified return, the products will be reshipped in accordance with the Incoterm DDP (ICC 2020), to the initial place of delivery.
6.4.In the event that the non-compliance is not attributable to the Seller, the Client must place a new order under the normal conditions set up in article 3, all repair costs incurred for the return of the products being borne by the Client.
7.1. The prices include taxes, customs duties, insurance, transport, departure from the Seller’s premises in charge of delivery or from any other entity mentioned on the order confirmation.
However, packaging costs may be included in transport prices, depending on the Incoterm chosen.
7.2. Fees associate to hazardous materials packaging and declarations (IATA, IMDG) are not included in prices and will have to be paid by the customer. Associated fees will be communicated by the seller when offer will be sent and potentially adjuster upon reception of an order in function of quantities that will need to be shipped.
7.3. Unless otherwise agreed, the selling price is the one on the prices list in effect at the date of the order confirmation but may be subject to adjustments, by reference to changes in prices of raw materials or supplier prices. The same is true for orders including split deliveries.
8.1.Unless otherwise specified, invoices must be paid upon receipt to the establishment of the Seller that issued the invoice.
8.2.The non-payment of any invoice within this period authorizes the Seller to request the payment of any debt it holds against the Client, even non matured.
8.3.Any delay gives rise to the invoicing of interests calculated on the basis of the price including VAT at a rate equal to 3 times the legal interest rate applicable on the day of the invoice, in addition to unpaid costs.
8.4.Any late payment gives rise to the payment by the Client of a € 40 compensation for recovery costs.
8.5.In the event of late payment and except to justify additional costs, the Seller also reserves the right to suspend the execution and delivery of all orders in progress, and to exercise his right of recovery on any discounts granted.
8.6.Any invoice dispute must be made within 10 calendar days from its receipt in order to enable it to be processed before the expiry of the payment period.
8.7.The Seller may subject the opening of a Client account and even the confirmation of orders to the communication of accounting, financial or legal documents and, where applicable, to the provision of prior guarantees.
8.8. In the event of a payment incident, the Seller reserves the right to request the provision of guarantees at any time, regardless of payment terms initially provided.
8.9. In the event of non-payment, the Seller reserves the right to take back the goods as is, without prejudice to any compensation and particularly in compensation for loss of value or repossession.
8.10. In the event of non-payment of invoices by the Client, the amounts due will be increased by an additional indemnity equivalent to 15%, in addition to costs and interests at the rate set up in article 8.3, from the date of dispatch of a formal notice to the Client by registered letter with acknowledgment of receipt.
9.1.The sale of products by the Seller can in no way confer a license to use a brand for any purpose whatsoever, including advertising.
9.2.All Seller’s intellectual property rights relating to the products sold, including without limitation, brands, patents, designs and models, copyright, know-how, etc., remain the exclusive property of the Seller and shall never be transferred to the Buyer unless otherwise agreed.
10.1. According to the provisions of articles 2367 to 2372 of the French Civil Code, the Seller retains the entire ownership of the products until full payment of the sale price, as well as interests and accessories, the payment only being considered effective upon collection by the Seller.
10.2. The delivery of a bill of exchange, check or any other means creating an obligation to pay shall not be considered as an effective payment.
10.3. For the purposes of this clause, the payments made by the Client attribute priority to the oldest invoices, whatever their amount or mentioned justifications.
10.4. The title to property can also be exercised up to the amount of the outstanding debt on goods of the same nature and quality held by the Client or on his behalf.
10.5. It can also be exercised whether the products are incorporated into other goods, provided they could be severed without damage
10.6. In the event of de facto or de jure payment cessation, or in the event of total or partial default, the Client shall refrain from using, transforming, alienating, pledging or giving as security the products covered by this property reservation for the benefit of the Seller.
10.7. In the event of resale of products before full payment to the Seller, the Client must notify the Seller, identify its own Clients and delegate without restriction the amount of the resale price as a guarantee to the Seller, who may claim payment directly from the purchasers.
10.8. The Client shall neither have the right to pledge products nor to give them as a warranty until full payment is effective.
10.9. The Client shall take all measures to ensure the identification of the products, owned by the Seller on its premises, before full payment.
10.10. The Client agrees to immediately inform the Seller of any compulsory liquidation receivership seizure or any other security measure taken by a third party on the products subject to the title to property clause, before full payment. In the event of cessation of payments, the Seller reserves the right to retain payments as a penalty clause and to claim the products property reserved to him.
10.11. In the event of the opening of bankruptcy proceedings, an inventory of the products shall be carried out, in accordance with articles L622-6 and following of the French Commercial Code and especially articles L 624-17 and L 624.18. of the French Commercial Code.
10.12. The Client must take out specific insurance for these products, in order to cover damages and claims that may be caused to the products and by the products. The Client agrees to subrogate the Seller, on simple request, in his rights vis-à-vis his insurer.
11.1. Any apparent defect is covered by the reception of products made by the Client without reserve. The Seller liability for hidden defects is defined in articles 1641 and following of the French Civil Code.
11.2. As in general, the Seller not being the manufacturer of the products marketed, its guarantees cannot exceed the guarantee conditions of its own suppliers, which may be communicated upon Client request.
The Seller guarantees a product lifespan of at least two months, regardless of the guarantee commitments of its own suppliers.
11.3. All defects, including hidden defects, as well as dimensional errors of the products, can only give rise to products replacement without additional compensation of any kind. The replaced Products are sent EXW (Incoterm ICC 2020), departing from one of the Seller’s place of delivery.
11.4. The warranty is excluded in case of normal wear or improper use of products. This warranty only covers products on the assumption that they have been correctly stored, assembled, handled and maintained by the Client.
11.5. The Seller is in no way required to repair indirect, material and immaterial damage such as loss of use, loss of operation, loss of production, loss of Clients or loss of profit of any kind.
12.1 For the processing of personal data, the Seller complies with the provisions of European Regulation No. 2016/679 on data protection (GDPR) of May 23, 2018 and French Law No. 78-17 of January 6, 1978 relating to data processing, files and freedoms modified by the law 2018-1125 of 12 December 2018.
12.2 The data collected by the Seller, as data controller, is processed in a lawful, fair and transparent manner.
The data collected is adequate, relevant and limited to what is strictly necessary with regard to the purposes (hereinafter referred to as the “Processing Purposes”).
12.3 The Client is informed that he has the right to withdraw his consent at any time. The Client expressly agrees to communicate to the Seller his name(s), e-mail address(es), telephone number(s), IP, log(s).
12.4 The Seller only collects data for the following processing purposes:
12.5 The Clients personal data are saved for the duration of the commercial relationship and 3 years from the end of it, under secured conditions, according to current technical means, in compliance with legal and regulatory provisions.
12.6 The Seller undertakes to:
• process the data only for the processing purposes described above,
• process data in accordance with European data protection regulations or any other provision of European Union law or laws of the Member States of the European Union relating to data protection,
• inform the Client in advance in case of data transfer to any third country or to an international organization,
• guarantee the confidentiality of personal data processed,
• ensure that the people authorized to process personal data undertake to respect a high degree of confidentiality or are subject to an appropriate legal obligation of confidentiality and receive the necessary training in the protection of personal data,
• take into account, with regard to its tools, products, applications or services, the principles of data protection by design and by default,
• take into account all the measures required by the GDPR and more generally take all necessary precautions to preserve the security and confidentiality of the personal data to which it has access,
• initiate (a) physical security measures aimed at preventing access to personal data by unauthorized people, (b) identity and access controls via an authentication system as well as a password policy, (c) an authorization management system and (d) processes and devices allowing all actions carried out on its information system to be traced and carried out in accordance with the regulations in force, reporting actions in the event of an incident affecting personal data.
The Seller shall not be responsible in any way for security incidents related to the use of the Internet, in particular in the event of loss, alteration, destruction, disclosure or unauthorized access to Client data or information.
12.7 In accordance with applicable regulations, the Client has a right of access, rectification, erasure, deletion, opposition, limitation and portability of data, the right not to be the subject of a decision automated individual (including profiling).
The Client is informed that the right of portability of personal data concerns the data that he himself has provided as well as the personal data generated by his activity, on the basis of his consent or the execution of these general terms and conditions of sales.
To exercise his rights, the Client can send an email to the following address: dpo@addevmaterials.com, attaching a copy of his identity card to his request.
12.8 In the event of recourse to subcontractors or partners, they are required to comply with the obligations hereof on behalf of and according to the instructions of the Seller, as well as the obligations defined by the applicable regulations. Thus, the subcontractor or the partner presents the same sufficient guarantees as to the implementation of appropriate technical and organizational measures so that the processing meets the requirements of the GDPR.
12.9 The Client is informed of his right to contact the French supervisory authority, the CNIL, directly at the following address: 3 Place de Fontenoy – SA 80715 – 75334 PARIS CEDEX 07 (France).
13.1. The sale of products by the Seller does not create any obligation to advise, vigilance, guard or special recommendation on the adaptation of the products to their destination, the Client acknowledging being presumed sufficiently informed by the instructions by use and information manuals that have been handed over to him and willing to judge himself the suitability of products by tests or trials prior to their implementation.
13.2. In no event and whatever the cause, origin or basis and whatever the nature of the action taken, including during the provision of associated services or as a result of negligence, shall the Seller liability exceed the selling price of the products having caused or suffered the damages.
14.1. Any failure in the performance by the Client of his obligations following a formal notice that has remained unsuccessful on the expiry of a period of 15 days, any delay in terms of payment, any credit impairment of the Client, such as the disclosure of a pledge on his business assets, may justify the notification of a forfeiture of the term by registered letter with acknowledgment of receipt and, as a result, the immediate exigibility of the amounts still due to any reason whatsoever, the suspension of all deliveries and the resolution of pending sales.
14.2. The Client is liable for the additional costs incurred for the recovery with no prejudice of any damages which the Seller shall be entitled to claim.
15.1. In the event of a force majeure cause, the Seller shall break off the delivery of products and the contract shall be suspended for the whole period during which the Seller remains unable to ensure deliveries and / or its attached services.
15.2. Any event of any nature that is reasonably beyond the control of any party, such as, but not exclusively, wars, riots, floods, fires, epidemics, pandemics, shortages of raw materials, disruption of supply, strike on means of transport, strikes or lockouts in factories or product shops, interruption of means of transport for whatever reason, legal or regulatory provisions leading to major upheavals affecting production, supply or distribution of products, shall be considered as constituting a force majeure event.
15.3. As soon as the cause or event of force majeure ceases, the contracts obligations shall be performed for the remaining period and the products not yet delivered.
15.4. If the event exceeds a period of 3 months, the sale may be waived without compensation, at the initiative of one or the other party.
16.1. Dual purpose. The Client agrees to comply with the European Trade Policy and Regulations on exports and dual-use goods available from the following link:
https://ec.europa.eu/trade/import-and-export-rules/export-from-eu/dual-use-controls/index_en.htm
16.2. Restrictive measures. For the purposes of this clause, the term “Sanctions Regime” means legislation or regulations in a country whose compulsory law applies in the present case, relating to economic or financial sanctions or trade embargoes imposed, administered or applied to at any time by an Authority endowed with the power of sanction, including in particular a National Government, the United Nations Security Council, the European Union or the United States of America.
16.3. The Client shall perform its obligations under the General Terms and Conditions of Sale by respecting all the Sanctions regimes and regulations in terms of export, re-export and trade control, in particular the legislation of the European Union and the United States of America.
16.4. The Client shall not sell, export, re-export or transfer, directly or indirectly, goods, software or technology, obtained from the Seller in application of the general conditions of sale to any place or any party, in the event that said sale, export, re-export, or said transfer would be prohibited or limited by a sanction regime and regulations in terms of export, re-export and trade control, in particular the legislation of the European Union and the States United of America.
16.5. The Client declares and guarantees that on the date of entry into force, no export or foreign trade control, nor any control under a Sanctions Regime constitutes an obstacle or an impediment in the execution of its obligations in application of the general conditions of sale. In the event of modification of these export controls and other controls of the foreign trade which would be likely to constitute an obstacle or an impediment in the execution of its obligations under the general conditions of sale, the Client shall keep the Seller informed of the consequences of such a modification.
16.6. Any violation of this clause will constitute a material breach under the general conditions of sale and the contractual relationship with the Seller.
16.7. The Client shall ensure that these obligations are imposed to any party to whom the products concerned by these general conditions of sale are sold, exported, re-exported and transferred so that the latter respects the obligations incumbent upon him in application of said general conditions of sale and that said person sends him an end-use contract.
For all disputes, whatever their nature, relating to a sale and / or to the additional services provided by the Seller, the Commercial Court of the head office of the Seller’s entity that sold the products will be competent, and the French law will be solely applicable.
1.1. In these Conditions the following words have the following meanings: “the Buyer” the firm or company who purchases Goods from the Company; “Cash Buyer” any Buyer who is not a Credit Account Buyer; “the Carrier” the carrier nominated by the Company to make delivery of the Goods in accordance with Condition 3.2 or such other carrier nominated by the Buyer to accept delivery of the Goods in accordance with Condition 3.3, as may be agreed between the Company and the Buyer from time to time “Conditions” the terms and conditions set out in this document as amended from time to time in accordance with Condition 2.2. “the Company” ADDEV Materials Aerospace Limited (a company registered in England under number 04421963) and whose registered office is at Towngate House, 2-8 Parkstone Road, Poole, Dorset, BH15 2PW; “Contract” the contract between the Company and the Buyer for the sale and purchase of Goods in accordance with these Conditions; “Credit Account Application” the application for a credit account completed by a Credit Account Buyer which has been submitted to and accepted by the Company prior to placing an order for Goods; “Credit Account Buyer” a Buyer who has submitted a Credit Account Application and who has been accepted for and provided with a credit account by the Company for the purposes of placing and paying for orders of Goods with the Company; “Force Majeure Event” has the meaning given in Condition 12; “Goods” any goods to be supplied to the Buyer by the Company (including any part or parts of them) pursuant to a Contract; and “Working Day” any day which is not a Saturday, Sunday or a bank or public holiday.
1.2. In these Conditions, reference to:
1.2.1. any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted, or replaced;
1.2.2. a party includes its successors and permitted assigns;
1.2.3.writing or written includes email.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.1. Subject to any variation under Condition 2.2, a Contract will be governed by these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports or seeks to apply under any purchase order, confirmation of order, specification or other document and any which are implied by law, trade, custom, practice or course of dealing).
2.2. These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company.
2.3. Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.4. No order placed by the Buyer shall be deemed to be accepted by the Company and no Contract shall come into existence until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods pursuant to Condition 3.
2.5. The Buyer must ensure that the terms of its order for Goods and any applicable specification are complete and accurate in all respects.
2.6. Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or its websites are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of any Contract nor have any contractual force.
3.1. Any dates specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence nor can the time for delivery be made of the essence by notice. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.2. In the event that the Carrier is nominated by the Company, delivery of the Goods shall take place when the Carrier delivers the Goods to the Buyer’s premises or the premises set out in the order for Goods (as applicable). For the avoidance of doubt, where no address for delivery is specified by the Buyer in the order, the Goods shall be delivered to the Buyer’s last known premises. Where the Carrier is nominated by the Company in accordance with this Condition 3.2, delivery of the Goods shall occur once the Goods have been unloaded at the Buyer’s premises or the premises set out in the order for Goods (as applicable).
3.3. In the event that the Carrier is nominated by the Buyer and agreed with the Company, the Company will make delivery of the Goods by making the Goods available for collection by the Carrier at the Company’s premises. Where the Carrier is nominated by the Buyer in accordance with this Condition 3.3, delivery shall occur upon the Company making the goods available for loading by the Carrier.
3.4. If for any reason the Buyer or the Carrier (where the Carrier is nominated by the Buyer in accordance with Condition 3.3) will not or are not able to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods because the Buyer has not provided appropriate instructions, documents, licences or authorisations then, at the time of such non-acceptance of delivery or inability to deliver:
3.4.1. risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
3.4.2. the Goods will be deemed for all purposes to have been delivered; and
3.4.3. the Company may store the Goods until actual delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage, insurance and any redelivery costs).
3.5. The Buyer will provide at its expense if requested by the Company at the place where delivery of the Goods is to take place, adequate and appropriate equipment and manual labour for unloading the Goods.
3.6. The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
3.7. The Company may deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
3.8. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 5 Working Days of the date of delivery of the invoice to the Buyer. Where such notice is given the Company’s liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused
3.9. by a Force Majeure Event or the Buyers failure to provide the Company with adequate delivery instructions or any other instructions that re relevant to the supply of the Goods.
4.1. The Goods shall be at the risk of the Buyer from the time delivery occurs pursuant to Condition 3.2, 3.3 or 3.4 (as applicable).
4.2. Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cleared funds) all sums due to it in respect of:
4.2.1. the Goods; and
4.2.2. all other sums which are or which become due to the Company from the Buyer on any account.
4.3. Until ownership of the Goods has passed to the Buyer, the Buyer must:
4.3.1. hold the Goods on a fiduciary basis as the Company’s bailee;
4.3.2.store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
4.3.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
4.3.4. maintain the Goods in a satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
4.3.5. hold the proceeds of the insurance referred to in Condition 4.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
4.4. The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
5.1. Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s written acknowledgement of order issued in accordance with Condition 2.4.
5.2. The Company may, by giving notice to the Buyer at any time up to 5 Working Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
5.2.1. any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
5.2.2. any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or any specification applicable to the Goods; or
5.2.3. any delay caused by any instructions of the Buyer or failure of the Buyer’s to give the Company adequate or accurate information or instructions.
5.3. The price for the Goods shall be exclusive of:
5.3.1. any value added tax which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
5.3.2. the costs of packaging, insurance, carriage, delivery and/or customs, import and export charges. Any costs and charges payable by the Buyer in relation to the packaging, insurance, carriage and delivery of the Goods will be set out in the written acknowledgement of order issued pursuant to Condition 2.4, and the Buyer shall be additionally liable to pay the Company those amounts, in addition to the price of the Goods, at the same time that the Buyer is required to pay for the Goods to which those amounts relate.
6.1. Payment of the price for the Goods, together with any VAT and packaging, insurance, carriage, delivery and/or customs, import and export charges pursuant to Condition 5.3, shall be due for payment:
6.1.1. where the Buyer is a Cash Buyer, in advance of the delivery; or
6.1.2.where the Buyer is a Credit Account Buyer in accordance with the payment terms set out in the Credit Account Application.
6.2. Time for payment of all amounts owed by the Buyer to the Company shall be of the essence.
6.3. All payments due from the Buyer to the Company shall be made in the manner specified in the Credit Account Application or as otherwise agreed between the Company and the Buyer in writing from time to time. No payment shall be deemed to have been received until the Company has received cleared funds.
6.4. All payments payable to the Company under any Contract shall become due immediately upon termination of any Contract despite any other provision.
6.5. The Buyer shall make all payments due under a Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise (other than any deduction or withholding of tax as required by law).
6.6. If the Buyer fails to pay the Company any sum due pursuant to a Contract on the due date for payment, the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the rate of 7% per annum above the base lending rate from time to time of The Bank of England (but shall be 7% per annum for any period when that base rate is below 0%), accruing on a daily basis until payment is made, whether before or after any judgement.
7.1. The Buyer shall inspect the Goods immediately following delivery having occurred in accordance with Condition 3.2 or 3.3 (as applicable).
7.2. Any claim that the Goods were damaged prior to delivery having occurred in accordance with Condition 3.2 or 3.3 (as applicable) must be notified by the Buyer to the Company in writing within 3 Working Days of delivery occurring, such written notice containing full details of the claim.
7.3. The Company must be afforded a reasonable opportunity and facilities to investigate any claims made under this Condition 7. The Buyer, if so requested by the Company, must promptly return the Goods which are the subject of any claim, securely packed and carriage paid, to the Company for examination and in any event must cease to use the Goods.
7.4. Subject to the Buyer having complied with the requirements in Conditions 7.2 and 7.3 above, in circumstances where the Goods were damaged prior to delivery having occurred in accordance with Condition 3.2 or 3.3, the Company may, at its option and acting in its sole discretion, either repair the Goods and/or make good such damage, replace the Goods or, where neither a repair or replacement is possible, refund the Buyer all amounts paid by the Buyer for the Goods which have been damaged. Where the Company opts to refund the Buyer in accordance with this Condition 7.4, such refund shall be made by the Buyer issuing a credit note to the credit account of the Buyer (where the Buyer is a Credit Account Customer) or by issuing a cash refund to the Buyer by BACS (where the Buyer is a Cash Buyer).
7.5. The Company will have no liability with regard to any claim in respect of which the Buyer has not complied with the claims procedures in these Conditions.
7.6. These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
8.1. Save as expressly provided in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from any Contract.
8.2. In circumstances where the Goods are manufactured other than by the Company, the Company shall use reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
8.3. The restrictions on liability in this Condition 9 apply to every liability arising under or in connection with any Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.4. Nothing in these Conditions excludes or limits the liability of the Company for:-
8.4.1. death or personal injury caused by the Company’s negligence;
8.4.2.fraudulent misrepresentation; or
8.4.3.breach of the terms implied by section 12 of the Sale of Goods Act 1979.
8.5. Subject to Condition 9.4, the following types of loss are wholly excluded:
8.5.1. loss of profits;
8.5.2. loss of sales or business;
8.5.3. loss of agreements or contracts;
8.5.4. loss of anticipated savings;
8.5.5. loss of use or corruption of software, data or information;
8.5.6. loss of or damage to goodwill; and
8.5.7.indirect or consequential loss.
8.6. Subject to Conditions 9.4 and 9.5, the Company’s total liability to the Buyer shall not in any circumstances exceed the higher of:
8.6.1. the price actually paid by the Buyer for the Goods to which the liability relates; and
8.6.2. the amount actually received by the Buyer from its insurers following a successful claim in relation to the Goods to which the liability relates.
8.7. This Condition 9 shall survive the termination of any Contract.
9.1. The Buyer warrants to the Company that it will, at all times after taking possession of the Goods, store and use the Goods in accordance with all relevant laws and regulations. These include but are not limited to – export regulations and controls, environmental and chemical regulations.
9.2. The Buyer shall indemnify the Company against any damages, losses, costs, claims or expenses incurred by the Company as a result of any breach by the Buyer of the terms of Condition 10.1.
10.1. The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under any Contract without the prior written consent of the Company.
10.2. The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under any Contract.
11.1. The Company shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from an event beyond the reasonable control of the Company including, without limitation, acts of God, flood, drought, fire, explosion, earthquake or other natural disaster, epidemic or pandemic, governmental actions, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, national emergency, strikes or other labour disputes, industrial action, lockouts import restrictions, or restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, any law or any action taken by a government or public authority, non-performance by suppliers or subcontractors and/or interruption or failure of utility services (Force Majeure Event). In such circumstances:
11.1.1. the time for performance shall be extended by a period equivalent to the period during which the performance of the obligation has been delayed or failed to be performed; and/or
11.1.2. the Company may terminate the Contract by giving 5 Working Days written notice to the Buyer; and/or
11.1.3. the Company may reduce the volume of the Goods ordered by the Buyer;
in each case without liability.
12.1. This Condition 13 applies if:
12.1.1. the Buyer fails to make payment when due or commits any other breach of a Contract; or
12.1.2. the Buyer makes any arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
12.1.3. an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Buyer; or
12.1.4. the Buyer ceases, or threatens to cease, to carry on business; or
12.1.5. the Company reasonable considers that any of the events listed in Conditions 13.1.2 to 13.1.4 inclusive is about to occur in relation to the Buyer and notifies the Buyer accordingly.
12.2. If this Condition 13 applies, the Company may in its absolute discretion suspend all further deliveries of Goods, and/or terminate the Contract, without liability to the Buyer. If the Goods have been delivered but not paid for, the price of the Goods, together with any VAT and packaging, insurance, carriage, delivery and/or customs, import and export charges arising pursuant to Condition 5.3, will become immediately due and payable.
12.3. Termination or expiry of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry.
12.4. Any provision of the Contract that expressly or by implication is intended to come into or continue force on or after termination or expiry of the Contract shall remain in full force and effect.
13.1. Except as referred to in Condition 14.2, the Buyer will not disclose and will treat as strictly confidential any confidential information concerning the business, affairs, customers, clients or supplies of the Company including all pricing and financial information regarding the Company received or obtained as a result of entering into a Contract.
13.2. The Buyer may disclose information which would otherwise be confidential if and to the extent:-
13.2.1. that disclosure is required by law or any regulatory or governmental authority;
13.2.2. the information has come into the public domain through no fault of the Buyer;
13.2.3. the Company has given prior written approval to the disclosure.
13.3. The obligations imposed upon the Buyer by this clause shall survive the termination or expiry of a Contract.
14.1. Any notice and/or other communication between the Buyer and the Seller under or in connection with these Conditions or the Contract shall be in writing and:
14.1.1. be delivered by hand or sent by pre-paid first class post or other next working day service to the receiving party’s principal place of business (or such other address as that party may notify to the other in writing from time to time); or
14.1.2. be sent by fax or by e-mail.
14.2. Any notice and/or other communication shall be deemed to have been received:
14.2.1. if delivered by hand, at the time the notice or communication is left at the proper address;
14.2.2. if sent by pre-paid first-class post or other next working day service, at 9.00am on the second Working Day after posting (exclusive of the day of posting); or
14.2.3. if sent by fax or email on a Working Day prior to 4.00 pm, at the time of transmission, or if sent by email on a Working Day after 4.00pm, on the next Working Day after transmission.
14.3. This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.1. Each right or remedy of the Company under a Contract is without prejudice to any other right or remedy of the Company, whether under a Contract or not.
15.2. If any provision of a Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid void, voidable, unenforceability or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of a Contract and the remainder of such provision shall continue in full force and effect.
15.3. Failure or delay by the Company in enforcing or partially enforcing any provision of a Contract will not be construed as a waiver of any of its rights under a Contract.
15.4. Any waiver by the Company of any breach of, or any default under, any provision of a Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of a Contract.
15.5. Each Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Customer acknowledges and agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract and that shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
15.6. A person, firm or company who is not a party to a Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of a Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
15.7. The formation, existence, construction, performance, validity and all aspects of a Contract shall be governed by the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
The general terms and conditions govern the conclusion of the contract, obligations of HLC Aviation GmbH and the user and the settlement of the contracts between the customer and HLC Aviation GmbH.
Seller
HLC Aviation GmbH
Rudolf-Diesel-Strasse 23
24558 Henstedt-Ulzburg
Germany
Telephone: +49 4193 750 86 -888
Fax: +49 4193 750 86 -7802
E-Mail: info@hlc-aviation.com
CEO: René Bouchard
Owner: Hans Brüchert
Register court: Amtsgericht Kiel
Registration number: HRB 16951KI
Sales tax identification number according to § 27 a
VAT Act: DE 298525215
Disclaimer: Despite careful content control, we assume no liability for the content of external links. The content of the linked pages are the sole responsibility of their operators.
1)The object of the General Terms and Conditions is the regulation of the contractual conditions for all contracts concluded by HLC Aviation GmbH (seller) with the customer (user). The General Terms and Conditions in the version valid at the time the contract is concluded shall apply in each case.
2)Terms and conditions of the contractual partner (hereinafter referred to as the Buyer) or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter which contains or refers to the terms and conditions of the Buyer or of a third party, this shall not constitute an agreement with the validity of those terms and conditions.
1)The Seller offers products exclusively to entrepreneurs who purchase the goods or services for their independent, professional or commercial activity or for their official or official activity. The Seller’s offers are expressly not directed at consumers.
2)These General Terms and Conditions are to be interpreted from this point of view in particular.
Information provided by the Seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as illustrations thereof (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service.
7)Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair the usability for the contractually intended purpose. For the rest, reference is made to § 8 No. 10.
8)the seller is entitled to affix his company text, his company logos as well as special product data to deliveries of all kinds, as far as in particular the services or the purpose of the contract are not affected.
9)the seller reserves the ownership or copyright to all offers and cost estimates made by him as well as to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the buyer. This shall also apply if these have been invoiced to the purchaser in whole or in part. The buyer may not make these objects accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of the seller. At the Seller’s request, he shall return these items to the Seller in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
1)The prices shall apply to the scope of services and deliveries specified in the order confirmations or commercial letters of confirmation. Additional or special services shall be invoiced separately. Prices are quoted in EURO ex works, plus statutory value-added tax and, in the case of export deliveries, plus customs duties, fees and other public charges.
2)Product prices do not include disposal costs or licence fees for sales packaging. A reduction of the invoice is not permitted. If the buyer is obliged by law to have the products purchased from the seller licensed, he is responsible for carrying out the licensing process and for the fees to be paid.
3)If the agreed delivery is to take place more than four months after conclusion of the contract, the Seller’s prices valid at the time of delivery shall apply.
4)Additional costs resulting from order changes after the customer has already approved production templates shall be charged to the customer in addition, including any costs for machine downtime.
1)Unless otherwise agreed in writing, invoice amounts are to be paid within 30 days without any deduction or within 8 days with a 2% discount, unless the default occurs earlier due to a reminder. The date of receipt by the Seller shall be decisive for the date of payment. Cheques shall not be considered as payment until they have been cashed. If the buyer does not pay by the due date, interest shall be charged on the outstanding amounts from the due date.
2)Interest on arrears amounts to 6%. The assertion of higher interest rates and further damages in the event of default shall remain unaffected.
3)For each reminder € 10.00 reminder fees will be charged.
4)The set-off with counterclaims of the buyer or the retention of payments because of such claims is only permissible, as far as the counterclaims are undisputed or legally determined.
5)The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are suitable to significantly reduce the creditworthiness of the Buyer and which endanger the payment of the outstanding claims of the Seller by the Buyer from the respective contractual relationship (including from other individual orders to which the same framework contract applies).
6)In the case of invoicing by kilo, gross shall be charged for net. This applies in particular to roll goods for which cores and packaging cannot be removed.
7)If the deduction of a discount has been agreed within a certain period of time, this shall refer to the value of the goods and shall only be granted if all payment obligations, including those from earlier deliveries, have been fulfilled in full.
8)Should the seller withdraw from the contract due to default in payment or other reasons for which the buyer is responsible, the claim for damages for non-performance shall amount to 20% of the order value, unless the seller can prove higher damages. The buyer can prove that no damage or less damage has occurred. Claims for damages shall also arise in the event of further breaches of contract, cf. §6 No. 8 and 10.
1)Deliveries are made ex works.
2)Without prejudice to the Seller’s rights arising from the Buyer’s default, the Seller may demand from the Buyer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the Buyer fails to meet its contractual obligations towards the Seller.
3)Seller shall not be liable for the impossibility of delivery or for delays in delivery caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. breakdowns of any kind, difficulties in procuring materials or energy, delays in transport, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure to receive supplies from suppliers in due time or incorrectly) for which Seller is not responsible. Insofar as such events substantially impede or render impossible delivery or performance by the Seller and the impediment is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service is unreasonable for the Buyer as a result of the delay, the Buyer may withdraw from the contract by immediate written declaration to the Seller.
4)The Seller shall be entitled to make partial deliveries, in particular if the partial delivery can be used by the Buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Buyer does not incur any considerable additional costs or expenses as a result (unless the Seller declares its willingness to bear these costs).
5)If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller for whatever reason, the Seller’s liability shall be limited to damages in accordance with § 10 of these General Terms and Conditions.
6)Disposable packaging shall not be taken back and shall not entitle to a reduction of the invoice.
7)If the customer is in default with the delivery of files, sketches, data or similar, to the delivery of which he is contractually obliged, the seller is entitled after setting a deadline to withdraw from the contract and claim damages for non-performance according to §5 No. 9. The same applies if the protective rights to the data etc. to be supplied are not held by the buyer and the latter does not prove them even after setting a corresponding deadline. Otherwise § 9 applies.
8)Contracts with agreed partial deliveries (call-off orders) oblige the purchaser to accept the entire call-off quantity no later than nine months after conclusion of the contract, unless a delivery or call-off at another time has been agreed.
9)If no call-offs are made or call-offs are not made on time, the Seller shall be entitled, after setting a reasonable deadline, to invoice partial quantities, in particular to assert storage costs for damage caused by delay or to withdraw from the contract and to assert claims for damages in accordance with §5 No. 9.
10)In the case of the delivery of palletized goods, the Purchaser shall return to the Seller, concurrently with the delivery, the same number of equivalent pallets which it has received or replace their value. The Seller shall keep a pallet account for the Buyer in accordance with the shipping documents receipted by the Buyer for the purpose of invoicing pallet traffic. All pallets not returned or returned damaged shall be invoiced to the Purchaser.
1)Place of performance for all obligations arising from the contractual relationship is Henstedt-Ulzburg.
2)The mode of dispatch and packaging are subject to the dutiful discretion of the seller, unless otherwise agreed.
3)The risk shall pass to the purchaser at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has undertaken other services (e.g. machine installation, instruction, dispatch or installation). If dispatch or handover is delayed as a result of circumstances for which the Buyer is responsible, the risk shall pass to the Buyer from the day on which the Seller is ready for dispatch and has notified the Buyer accordingly.
4)Storage costs after transfer of risk shall be borne by the buyer. In the case of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored (at least EUR 2.00 per pallet) per expired week. We reserve the right to assert and prove further or lower storage costs.
5)The consignment will only be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the buyer and at his expense.
6)If acceptance is to take place, the object of sale shall be deemed to have been accepted when the delivery has been completed and the Seller has informed the Buyer of this with reference to the fiction of acceptance pursuant to § 7 (6) and requested acceptance, or twelve working days have elapsed since delivery or the Buyer has commenced use of the object of sale and in this case six working days have elapsed since delivery, and the Buyer has omitted acceptance within this period for reasons other than a defect notified to the Seller which makes use of the object of sale impossible or substantially impairs it.
7)The Purchaser shall check the conformity of the delivered goods with the contract as well as the preliminary and intermediate products sent for correction and inform the Seller whether these are in order, ready for printing or ready for production. The risk of any errors in this regard shall pass to the customer with the declaration of readiness for printing or production, unless these are errors which only arise in the subsequent production process.
1)The warranty period shall be one year from delivery or, if acceptance is required, from acceptance or, in the case of machines, at the latest from commissioning.
2)The delivered items must be carefully inspected immediately after delivery to the purchaser or to a third party designated by the purchaser. They shall be deemed approved if the Seller has not received in writing a notice of defect with regard to obvious defects or other defects which were recognisable in an immediate, careful inspection within seven working days of delivery of the delivery item, or otherwise within seven working days of discovery of the defect or the time at which the defect was recognisable to the Buyer during normal use of the delivery item without closer inspection. If a defect is notified, the delivery item complained of shall be returned to the Seller carriage paid at the Seller’s request unless the Seller arranges for collection. In the event of a justified notice of defects, the Seller shall reimburse the costs of the most favourable dispatch route, provided that the Buyer has arranged for and paid for the return; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use. If it turns out that the designated defect is not present or the seller is not responsible for the defect, the buyer is obliged to reimburse the seller for all costs in connection with the unjustified complaint.
3)Such damage, which was externally recognisable when the goods were accepted, must be reported immediately to the carrier or freight forwarder and noted in writing on the shipping documents.
4)In the case of material defects of the delivered goods, the seller is initially obliged and entitled to repair or replace the goods at his discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Buyer may withdraw from the contract or reduce the purchase price accordingly.
5)If a defect is based on the fault of the seller, the buyer can claim damages under the conditions specified in § 10.
6)In the event of defects in components from other manufacturers which the Seller cannot remedy for licensing or actual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the Buyer’s account or assign them to the Buyer. Warranty claims against the Seller for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Buyer against the Seller shall be suspended.
7)The warranty does not apply if the purchaser changes the delivery item or has it changed by third parties without the consent of the seller and the removal of the defect is thereby made impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of remedying the defect incurred as a result of the change.
8)A delivery of used items agreed with the buyer in individual cases shall be made to the exclusion of any warranty.
9)The print quality of continuously applied recycling signs does not constitute a reason for complaint.
10)Production-related deviations with regard to dimensional accuracy and delivery quantity are not grounds for complaint according to the provisions of the respective inspection and evaluation clauses of the GKV (Gesamtverband Kunststoffverarbeitender Industrie) and the paper and cardboard industry.
The seller shall endeavour to comply with the order quantities in the case of articles specially manufactured at the customer’s request, but excess or short deliveries must be accepted to the following extent:
For polyethylene products
up to 500 kg. +/- 20 %
+/- 10 %
For paper and cardboard articles
+/- 25 %
up to 3,000 ……………………………………………………………………………………………………… +/- 20 %
over 3.000 pieces ………………………………………………………………………………………… +/- 15 %
For all other articles
+/- 10 %
1)The Seller warrants in accordance with this § 9 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
2)In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller may, at his discretion, modify or exchange the delivery item in such a way that no rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions. Any claims for damages by the Seller are subject to the restrictions of § 10 of these General Terms and Conditions. Otherwise, §6 No. 8 shall apply to the Purchaser’s specifications.
3)The buyer alone bears the responsibility for the products ordered by him. If patent, licence or copyright rights are infringed when the order is placed, the purchaser shall be fully liable and shall indemnify the seller against all claims of third parties. If third parties claim the infringement of industrial property rights, the Seller shall be entitled to suspend production until a court decision has been made or to withdraw from the contract. If the production is delayed, a price adjustment according to § 4 No. 3 is possible. The Seller shall not be obliged to examine possible infringements of industrial property rights by third parties in the event of specifications by the Buyer.
4)In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its option, assert its claims against the manufacturers and sub-suppliers for the account of the Buyer or assign them to the Buyer. In these cases, claims against the Seller pursuant to this § 9 shall only exist if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers was unsuccessful or is futile, for example due to insolvency. In any case §10 shall apply.
8)The limitations of this § 10 shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or in accordance with the Product Liability Act.
1)The retention of title agreed below serves to secure all existing current and future claims of the Seller against the Purchaser arising from the supply relationships existing between the contractual partners from this contractual relationship (including balance claims from a current account relationship limited to this supply relationship).
2)The goods delivered by the Seller to the Buyer shall remain the property of the Seller until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title which take their place in accordance with this clause shall hereinafter be referred to as goods subject to retention of title.
3)The Buyer shall store the reserved goods free of charge for the Seller.
4)The Buyer shall be entitled to process and sell the reserved goods in the ordinary course of business until the event of utilisation §11 No. 9 occurs. Pledges and transfers by way of security are not permitted.
5)If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in the name and for the account of the seller as manufacturer and that the seller directly acquires the ownership or – if the processing is carried out from materials of several owners or the value of the processed object is higher than the value of the reserved goods – the co-ownership (fractional ownership) of the newly created object in the ratio of the value of the reserved goods to the value of the newly created object. In the event that no such acquisition of ownership should occur at the seller, the buyer already now transfers his future ownership or – in the above ratio – co-ownership of the newly created object to the seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall transfer to the Buyer, to the extent that the main item belongs to the Seller, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
6)In the event of resale of the goods subject to retention of title, the Buyer hereby assigns to the Seller, by way of security, the resulting claim against the purchaser – in the event of co-ownership of the Seller in the goods subject to retention of title, proportionate to the co-ownership share – to the Seller. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The Seller revocably authorises the Buyer to collect the claims assigned to the Seller in his own name for the account of the Seller. The seller may only revoke this direct debit authorisation in the event of realisation.
7)If third parties have access to the reserved goods, in particular by seizure, the buyer shall immediately inform them of the seller’s ownership and inform the seller thereof in order to enable him to enforce his ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller for such costs.
8)The Seller shall release the goods subject to retention of title as well as the items or claims replacing them at his discretion upon request, insofar as their value exceeds the amount of the secured claims by more than 50%.
9)If the seller withdraws from the contract in case of breach of contract by the buyer – in particular default in payment – he shall be entitled to demand the return of the reserved goods.
1.1 Definitions of terms used in these general terms and conditions of sale (‘General Conditions’):
a) Supplier: a contractor/seller.
b) Buyer: the legal or natural person with whom the Supplier has concluded or wishes to conclude a contract.
c) Goods: all products and/or services and/or works supplied or to be supplied by the Supplier.
d) Order: the order to deliver the Goods requested by the Buyer.
e) Contract: the written arrangements between the Supplier and the Buyer for the order or delivery of goods.
f) In writing: by (registered) letter, bailiff’s summons and communication by electronic means, such as email.
1.2 Any deviation from these General Conditions or any part hereof is only binding if agreed in writing.
1.3 If any provision in these General Conditions is void or is revoked by court order, this shall not affect the effect of the other provisions, and the Supplier shall then be entitled to replace that provision by a provision that approximates as closely as possible in intention without being void or voidable.
1.4 In the event of a textual difference in meaning between the various language versions of these General Conditions, the Dutch text shall be binding.
1.5 These General Conditions may not be reproduced and/or disclosed in whole or in part in any manner whatsoever without the prior written consent, except for personal use.
1.6 These General Conditions apply to all contracts between the Supplier and the Buyer, as well as to all offers/quotes made by the Supplier. Once a contract has been concluded under these General Conditions, these General Conditions will also apply in full to any later contract.
2.1 All offers issued by the Supplier are without obligation, unless the offer expressly indicates otherwise.
2.2 There is no binding contract until an offer has been accepted in writing by the Supplier or as soon as the Supplier has commenced executing the order placed by the Buyer. For sales from (warehouse) stock, the invoice may replace the written acceptance/order confirmation.
2.3 Any additional contracts or amendments made at a later date, as well as promises, will not be binding upon the Supplier unless they have been confirmed in writing by the Supplier.
2.4 The Supplier reserves the right to refuse all or any part of the order in situations including, but not limited to, the following:
a) the Buyer fails to pay invoices for previous deliveries on time or at all;
b) the ordered Goods are out of stock;
c) the ordered Goods ordered are not available;
d) the Buyer’s creditworthiness deteriorates;
e) the Supplier can reasonably infer from other circumstances that the Buyer will fail to comply with one or more of its obligations;
f) the information provided by the Buyer is incorrect or incomplete.
2.5 The Supplier may rely on the accuracy of the Buyer’s order, and the specifications stated therein. Notwithstanding Book 7 Article 754 of the Dutch Civil Code, the Supplier is not obliged to warn the Buyer about (possible) inaccuracies in the order, unless the Buyer can prove that the Supplier had knowledge of the inaccuracies in the order.
3.1 The price offered applies only to the specific order and the quantities offered therein and are exclusive of VAT, transport costs, packaging, packaging materials, import and export duties, station, security, clearance, insurance costs, sales tax and any other levies, unless otherwise agreed in writing.
3.2 If there are any foreseen and unforeseen cost-increasing circumstances attributable to the Buyer, the Supplier shall be entitled to charge these costs to the Buyer, at the Supplier’s discretion.
3.3 If the Buyer modifies the order and as a result the price is higher, the Supplier does not have to point this out to the Buyer, in deviation from Book 7 Article 764 of the Dutch Civil Code.
3.4 The Supplier is entitled to increase prices by increases occurring before the day of delivery, for example: purchase prices/ factory prices of suppliers, wages, labour costs, freight, materials, social charges, foreign currency settlement and transport costs, raw materials, tax. Deviations from the agreed price (in the specifications) or a set item up to a maximum of 15% are considered reasonable, unless the Buyer can prove that increasing the agreed price is not reasonable. In the event of a price increase, the Supplier shall not be liable to pay compensation to the Buyer.
3.5 The prices offered may be indexed annually by the Supplier, whereby the Supplier shall take into account the price increase as described in section 2 of this article and the applicable price index figure of Statistics Netherlands.
4.1 The Goods ordered by the Buyer shall be deemed delivered when:
a) the Supplier has notified that the Goods are ready for delivery and the Buyer does not inform the Supplier in writing within 3 working days whether or not he accepts the work;
b) the Buyer has taken delivery of the Goods;
c) the Buyer has started to use the Goods.
4.2 Unless expressly agreed otherwise in writing, delivery from the Supplier to the Buyer shall always take place in accordance with the Incoterm Ex Works (location Supplier (or location in the Netherlands where the goods are loaded by order of Supplier)) as referred to in Incoterms version 2020 of the International Chamber of Commerce (ICC).
4.3 The delivery and transfer of the risk of the Goods (loss, theft and damage) in the event of Ex Works delivery shall take place to the Buyer by making the Goods available from the Supplier to the Buyer or to the first carrier from the Supplier’s location (factory) in the Netherlands.
4.4 If delivery takes place in accordance with the Incoterm Delivered At Place (‘DAP’), the Goods shall be transported at the expense and risk of the Supplier. In all other cases, the Goods shall be transported at the expense and risk of the Buyer.
4.5 Delivery and transfer of the risk of the Goods (loss, theft and damage) upon delivery DAP, shall be to the Buyer if the Supplier delivers at the agreed place of destination.
4.6 On delivery DAP, the Supplier shall transport the Goods to where the vehicle can pass on public roads. The Supplier is not obliged to transport the Goods to the site/branch address of the Buyer, unless explicitly agreed otherwise. The Buyer must take delivery of the Goods there and unload them immediately.
4.7 The delivery times stated by Supplier are always approximate and therefore do not constitute deadlines.
4.8 If the Buyer refuses to take delivery or is negligent in providing information or instructions necessary for delivery, the Supplier may choose either to take back and store the Goods at the Buyer’s expense and risk, or take them back and resell them to third parties. In either case, the Supplier may charge the Buyer for the costs already incurred, including the full costs of the relevant insurance and (extra) transport costs, or at least a compensation of 15% of the total invoice value of the returned Goods including VAT.
4.9 The Supplier reserves the right to deliver Goods in parts. Also in deviation of article 73 of the Vienna Sales Convention, each delivery shall be considered a separate Contract and the Supplier shall be entitled to invoice that delivery separately.
4.10 Deliveries of more or less than the agreed number of Goods are allowed with a percentage of 10%. The quantity delivered that is less or more will be charged or settled respectively. In addition, a tolerance and deviation of +5° or -5° shore with respect to the agreed shore hardness, is permissible.
4.11 The Buyer shall ensure that all work to be performed by third parties in connection with the Contract shall be performed in a timely and correct manner, and that all facilities and materials shall be ready and delivered in a timely manner, so that the Supplier can execute the order/ deliver Goods without delay. If the Buyer fails to meet these obligations and this causes a delay, the term of delivery shall be extended proportionately and any resulting loss for the Supplier, shall be borne by the Buyer. Moreover, the term of payment for the Buyer shall then remain unchanged, even if all or part of the Goods have not yet been delivered.
4.12 The execution of the order shall take place under the Supplier’s direction and exclusively according to its instructions. The Supplier may, without seeking permission from the Buyer, engage third parties to carry out the order.
5.1 The packaging issued by the Supplier is deemed to have been received by the Buyer, subject to proof to the contrary by the Buyer, in good condition and in the numbers specified by the Supplier. The Supplier shall at all times remain the owner of the packaging it provides.
5.2 Packaging that can be used several times shall be returned by the Buyer in a clean, good and undamaged condition in a manner to be indicated by the Supplier.
5.3 If the Buyer does not deliver packaging in accordance with section 2 of this article, the Supplier is entitled to charge the Buyer the market value and/or a reasonable deposit fee for the packaging and the Buyer must pay these costs to the Supplier within 14 days after being required to do so. If the Buyer does not comply with the said payment term, it shall be in default by operation of law and without further notice of default.
5.4 If the Buyer does not supply packaging in accordance with section 2 and the Supplier has already charged the Buyer for the packaging, the Supplier is not obliged to credit the packaging.
6.1 The payment term is 14 days from the invoice date, unless expressly agreed otherwise in writing. The payment term is a deadline. If it is exceeded, the Buyer shall be in default immediately and by operation of law, i.e. without notice of default being required.
6.2 From the moment of default, the Buyer owes:
a) interest of 1.5% per month on the total outstanding amount. A part of a calendar month is considered a whole calendar month;
b) extrajudicial collection costs, which are set at a minimum of 15% of the amount due including VAT, or € 500.00 excluding VAT, whichever is more, without prejudice to the Supplier’s right to compensation under the law;
c) all judicial costs incurred by the Supplier in order to enforce compliance with the Buyer’s obligations. Judicial costs also include the costs of filing for bankruptcy as a means of collection.
6.3 The Buyer is not allowed to suspend or set off its (payment) obligations in full or in part, even if it has made a complaint.
6.4 Payments made by the Buyer shall always first be applied to reduce the costs due, then the interest and after that the invoices that have been outstanding the longest, irrespective of the payment reference stated by the Buyer at the time of payment.
6.5 All claims of the Supplier are immediately due and payable and the Buyer is immediately in default in cases including, but not limited to, the following:
a) the Buyer breaches any of its obligations under any contract with the Supplier, related contract, or prior or subsequent contract, in time or properly;
b) the Buyer has filed or intends to file an application for, or has been granted, a moratorium;
c) A petition for bankruptcy is filed by the Buyer or against the Buyer, the Buyer or a third party intends to file a petition for bankruptcy or in the event the Buyer is declared bankrupt or the Buyer encounters insolvency proceedings;
d) The Supplier otherwise has reasonable doubt as to the Buyer’s ability to pay as a result of which the Buyer cannot meet its obligations;
e) The Buyer has applied for a Natural Persons Debt Rescheduling Act (WSNP) or is declared applicable to the Buyer or any form of debt rescheduling is proposed;
f) An attachment (conservatory or executory) is levied by a third party against the Buyer;
g) the Buyer’s business is dissolved and liquidated;
h) After cessation or transfer of its business by the Buyer;
i) Collateral security provided has been extinguished or reduced in value.
6.6 In the event of default and in the cases including, but not limited to subsections a to I of section 5, above, the Supplier shall be entitled to suspend the delivery of (as well as the production or processing of) Goods intended for delivery, without prejudice to the Supplier’s right to simultaneously demand payment in advance or proper (additional) security for the payment for the Goods to be delivered, at the Supplier’s discretion.
6.7 Once the Buyer has fulfilled its obligations and/or provided sufficient security, the Supplier shall be entitled to the delivery period necessary for delivery of the Goods.
6.8 The Supplier is authorised to assign or pledge its claims upon the Buyer to one or more third parties (for such as, a factoring company) to be designated by Vingino, both for orders within the and for orders from countries other than the Netherlands.
7.1 The sale and delivery are subject to a comprehensive retention of title. Ownership of Goods sold, delivered and to be delivered, including those already paid for, is reserved until all claims – including interest and costs – of the Supplier against the Buyer have been settled.
7.2 Until ownership of the delivered Goods has passed to the Buyer, the Buyer cannot and may not pledge, transfer ownership of or grant to third parties any other security right over the Goods for debts, loans or other financial arrangements.
7.3 The Buyer must:
a) keep the Goods delivered under retention of title properly stored and secured. From the moment of delivery, as defined in these General Conditions, the Buyer shall bear the risk of loss, damage or any other depreciation of the delivered Goods;
b) keep the Goods delivered under retention of title with due care and as recognisable property of the Supplier;
c) pledge to the Supplier all the Buyer’s claims against the insurer in respect of the Goods delivered under retention of title pursuant to Book 3 Article 239 of the Dutch Civil Code;
d) Immediately notify the Supplier if third parties claim rights with regard to the Goods delivered by the Supplier to the Buyer, in case the Supplier still has any amount to claim from the Buyer by virtue of the delivery of those Goods. In that case, the Supplier shall be entitled to immediately take possession of the relevant Goods. In such a case, the Buyer shall be liable for all costs involved. The Supplier shall not be obliged to deliver these Goods until it has been paid in full or adequate security has been provided in respect of its claim (s).
7.4 If the Buyer is late with payment or if there is good reason to assume that the Buyer will not pay or will pay late or is or at risk of being in payment difficulties, the Supplier is entitled to take possession of its property and sell it to third parties.
7.5 In the event that the Supplier, pursuant to section 1 of this article, claims the Goods on which the retention of title rests as his property, the Buyer hereby unconditionally and irrevocably authorises the Supplier, or third parties to be appointed by the Supplier, to enter all those places where the Supplier’s property is located and to take back those Goods if the Buyer is in default.
7.6 If the Buyer fails to comply in time or at all with its obligations under this article, it shall be in default and shall forfeit to the Supplier, without further notice of default being required, an immediately payable penalty of €10,000.00, plus a penalty of €1,000.00 per day for as long as the breach continues, up to a maximum of €50,000.00, without prejudice to the Supplier’s right to claim full compensation in addition. The Buyer shall owe the penalty in the event of non-compliance, without prejudice to the Supplier’s right to enforce compliance with the Buyer’s (other) obligations under all contracts.
7.7 If the Supplier claims Goods as its property and recovers these Goods, the Supplier shall send the Buyer a credit note for these Goods to the Buyer in the amount of the market value of the recalled Goods at the time of recovery. The market value shall in any case be equal to the sale value less the loss of value of the Goods and less the costs of retrieving the Goods or equal to the sale value of the Goods realised in the event the Goods are sold to a third party via a private/public sale less the costs of retrieving the Goods, at the Supplier’s discretion. Without prejudice to the right to compensation for further loss.
7.8 If and to the extent that the country of destination of the Goods offers more far-reaching possibilities with regard to retention of title, those more far-reaching possibilities shall apply.
8.1 The Buyer shall not infringe any copyright and any other intellectual or industrial property rights or similar rights, including trademark rights, patents, and confidential business information within the meaning of Article 1 of the Trade Secrets Protection Act, in respect of Goods supplied by the Supplier to the Buyer, including products manufactured by or on the instructions of the Buyer and the drawings, models, moulds, shapes and all that relates to the execution of the order. The said Goods shall remain the Supplier’s property, even if the Buyer has been charged for them, unless otherwise agreed in writing.
8.2 Unless otherwise agreed in writing, the Buyer is not allowed, inter alia:
a) to change or remove or cause to be changed or removed any indication appearing in or on Goods concerning rights as referred to in section 1 of this article, such as trademarks or trade names of the Supplier or third parties;
b) to reproduce, disclose or alter, in whole or in part, any Goods delivered by the Supplier to the Buyer as referred to in section 1.
The above list is not exhaustive.
8.3 If the Buyer notices that third parties are in any way infringing the intellectual or industrial property rights referred to in this article, it must notify the Supplier immediately in writing. The Buyer shall, if required, comply with any further instructions from the Supplier.
8.4 If the Supplier manufactures Goods for the Buyer using goods made available by the Buyer or in accordance with its instructions, such as drawings, models, moulds, shapes or other data, the purchaser guarantees the Supplier that no intellectual or industrial property rights of third parties are infringed. The Buyer shall indemnify the Supplier against third-party claims due to alleged infringement of an intellectual or industrial property right.
8.5 If the Supplier ascertains that the manufacture and/or delivery of Goods infringes a third-party right, it shall be entitled to discontinue the manufacture and/or delivery of the Goods in question and/or to terminate the contract without further notice and without the Supplier being liable for compensation. In that case, the Buyer must compensate for the loss suffered by the Supplier, including lost profit.
8.6 If the Supplier fails to comply with the obligations under this article, then without further notice of default, the Supplier shall be in default and shall forfeit to the Buyer an immediately payable penalty of €25,000.00 per breach, as well as a penalty of €10,000.00 per day for each day that the breach continues, up to a maximum of €100,000.00, without prejudice to the Supplier’s additional right to claim full compensation.
9.1 The quantities as stated on consignment notes or similar documents are deemed to be correct if no written complaint is made immediately upon receipt or delivery. Evidence to the contrary shall rest with the Buyer.
9.2 All rights and claims will be forfeited unless any complaint about Goods is made by the Buyer in writing accurately stating the nature and ground of the complaint, provided with clear digital photos of the Goods, showing the defects, as well as stating the invoice number/order number and Product number in case of;
a. Patent defects: within 7 working days after delivery;
b. Latent defects: within 14 working days, after the Buyer has discovered, or at least reasonably could have discovered, a defect.
9.3 Any complaint about an invoice must be made in writing within 14 days of the date of the invoice in question, failing which the invoice will be considered correct and undisputed.
9.4 The Supplier’s Goods are a natural product. Images of Goods in leaflets, catalogues, advertisements, etc. only give an impression of the Article and are not binding on the Supplier.
9.5 No complaints will be accepted in respect of Goods that have been fully or partially processed and/or treated.
9.6 The Buyer must give the Supplier the opportunity to investigate the complaints on their merits.
9.7 If the Buyer does not cooperate sufficiently or at all with the Supplier in the investigation into the merits of the complaint(s) and/or the Buyer has not stored or handled the Goods in the correct manner, any right of claim of the Buyer against the Supplier relating to the delivered Goods shall lapse.
9.8 In any case, there is no question of a breach by the Supplier in the case of delivery of more or fewer numbers, or a deviation in Shore hardness as referred to in Article 4.10, or if Goods contain limitations/defects that:
a) aesthetic in nature; and/or
b) not essential (e.g. minor deviations in colour, quality, relief, design, etc.. This list is not exhaustive); and/or
c) inherent in the nature and properties of the raw materials from which the Goods are manufactured; and/or
d) the result of incorrect or incomplete information supplied by the Buyer; and/or.
e) originate from errors, incompleteness or inaccuracies in data, materials, information carriers, etc. which have been made available/prescribed to the Supplier by the Buyer.
9.9 If there is a well-founded complaint, the Supplier is only obliged to replace or repair Goods at his discretion; the Buyer cannot protest against this.
9.10 No complaints will be accepted on Goods that have not been stored and used in accordance with the manufacturer’s / user instructions, at the Supplier’s discretion.
9.11 Return shipments will only be accepted by the Supplier with the Supplier’s prior express written consent. Return shipments must be made carriage paid, provided with a return number issued by the Supplier, thus at the expense and risk of the Buyer. Returns must be made within 7 working days of the return number issued by Supplier.
9.12 If the Buyer returns Goods without the Supplier’s prior written consent, all costs related to returning the Goods shall be borne by the Buyer. In that case, the Supplier is free to store the Goods (or have them stored) at the Buyer’s expense and risk.
9.13 In the event that a written complaint has been lodged with the Supplier by the Buyer within the periods set out within this article, any legal action must, be brought before a court with jurisdiction pursuant to these General Conditions no later than 12 months after the complaint has been lodged unless rights under applicable treaties, laws and regulations have lapsed earlier, failing which all rights and claims are forfeited.
10.1 If Goods are delivered by the Supplier with a warranty, the warranty conditions and manufacturer’s and user instructions shall apply to the Goods.
10.2 If the Buyer makes a valid claim under the warranty conditions, the Supplier has the choice either to repair or redeliver the Goods.
10.3 In any event, a claim under a warranty may not be made, or exclusively made, if:
a) there is intent or gross negligence on the part of the Buyer or a third party;
b) the manufacturer’s or user instructions have not been observed;
c) changes have been made to the Goods;
d) there is normal wear and tear;
e) the assembly or repair to the Goods has been carried out by third parties without the Supplier’s written consent;
f) the assembly or repair to the Goods has been performed by a third party and this is not in accordance with the applicable regulations, regardless of whether Supplier has given written permission for assembly or repair by a third party;
g) there is a negligible/small failure, as stated in Article 9.8 of these General Conditions;
h) the cause of the defect is external to the Goods.
10.4 The provisions of the preceding section shall be determined by the Supplier or any expert it engages.
11.1 The Supplier is not liable for any loss suffered by the Buyer, except and insofar as the Buyer can prove intent and/or gross negligence on the part of the Supplier’s management or subordinates belonging to the management.
11.2 The term ‘loss’ here includes loss through termination of contract, loss through breach of a statutory obligation, and loss based on tort.
11.3 Under no circumstances shall the Supplier be liable for
a) loss arising in, and from, the cases described in Articles 9.8 and 10.3;
b) loss resulting from errors/negligence of third parties engaged by the Supplier for the delivery of Goods or the performance of work with the consent of the Buyer.
c) loss caused by breach of any third-party industrial and intellectual property rights as a result of the use of data provided by or on behalf of the Buyer, such as drawings, models and the like, and for consequential loss of the Buyer;
d) consequential loss, which includes but is not limited to pure financial loss, death, lost profit, lost turnover, missed savings, impairment of goodwill or similar losses howsoever arising, labour costs, environmental damage, loss from standstill and business stagnation, and interest costs, irrespective of how such loss is identified (direct, indirect, consequential).
e) Loss attributable to third parties engaged for the execution of the order, notwithstanding Book 6 Article 76 of the Dutch Civil Code.
This list is not exhaustive.
11.4 Cumulative liability, based on any legal ground whatsoever, is expressly limited in its entirety at the Supplier’s discretion:
a) to the replacement or repair of Goods to which the complaints relate;
b) up to the amount paid out by the insurance in the relevant case plus the Supplier’s deductible. If for whatever reason no payment is made under the insurance policy, the liability for loss shall be expressly limited to 30% of the invoice value of the Goods to which the loss has been determined or to which the loss relates. The Buyer’s liability for loss is at all times limited to a maximum of €30,000.00. Any further liability on the part of the Supplier is expressly excluded. The Buyer is entitled to have the loss assessed by an independent expert that it appoints.
11.5 The period within which the Buyer can be held liable for loss is in all cases limited to a period of 1 month after the event giving rise to the loss has occurred, failing which all rights are lost. All claims for compensation shall be barred by the expiry of 12 months from the date on which the claim is first made, if they are not brought before the courts within this period.
11.6 The Buyer shall indemnify the Supplier against (all consequences of) third-party liability in respect of Goods delivered by the Supplier to the Buyer. Claims from third parties will therefore not be accepted by the Supplier.
12.1 If the Supplier deems it necessary to make a product recall, the Buyer must cooperate with all measures that the Supplier deems necessary to limit loss. If the Buyer discovers that the delivered Goods (may) require a product recall, it must contact the Supplier in writing immediately, but in any case within 24 hours of discovery.
12.2 If the Buyer breaches its obligations as set out in this article, it shall owe an immediately payable penalty of €25,000.00, plus a penalty of €10,000.00 per day for as long as the breach continues, up to a maximum of €100,000.00 and without prejudice to the Supplier’s right to claim full compensation in addition.
13.1 Force majeure within the meaning of this Article shall be treated as force majeure as defined by Book 6 Article 75 of the Dutch Civil Code. Force majeure shall in any case include, but not be limited to: industrial action, absenteeism of personnel, transport difficulties, insufficient supply/scarcity of products/raw materials, piracy, boycott, blockade, flooding, fire, war, vandalism, flooding, terrorism, government measures, (measures as a result of a) pandemic/epidemic, import and export bans, business interruptions at suppliers or supplier, default of suppliers, and all external causes beyond the Supplier’s control. This list is not exhaustive.
13.2 In the event of force majeure, the delivery and other obligations of the Supplier will be suspended. If the period of force majeure lasts longer than three months after notification by the Supplier, both the Supplier and the Buyer are entitled to terminate the Contract, without either party becoming liable to compensate the other.
13.3 If the Supplier has already fulfilled part of its obligations when the force majeure situation arises or can only fulfil part of its obligations, it is entitled to separately invoice the part delivered or the part that can be delivered and the Buyer must pay this invoice as if it were a separate contract.
14.1 Unless otherwise agreed in writing, contracts are to be regarded as separate contracts and there is no continuing performance contract that needs to be terminated.
14.2 If and insofar as the Buyer can prove in writing that this is a continuing performance contract then, unless otherwise agreed, the contract can always be terminated in writing subject to a notice period of 3 months (to be calculated from the last working day of the month) without any obligation to pay compensation for loss thereby caused.
14.3 In the unlikely event of any default on the part of the Supplier, the Buyer shall not be entitled to terminate the contract in whole or in part. This does not apply in cases of force majeure, for which the provisions of Article 13 apply.
14.4 If the Buyer is in default, the Supplier shall have the right to terminate the relevant Contract(s) in full or to the extent that the obligations under the Contract have been partially performed, and to terminate ongoing Contracts in respect of which the Buyer is not in default, in full or – to the extent that the obligations under the Contract have been partially performed – in part.
14.5 Unless agreed in writing, full or partial termination on the part of the Buyer before completion is excluded. In the event of full or partial termination of any contract, the Supplier shall in any case be entitled to the following compensation:
a) recovery of the costs already incurred if termination takes place before the Goods are ready to be delivered, being 50% of the agreed amount in accordance with the contract. Without prejudice to the Supplier’s right to full compensation, including loss of profit.
b) 100% of the agreed amount in accordance with the contract from the day that Goods are ready to be delivered and if the Supplier has ordered Goods to size or has manufactured/made Goods to size at the request of the Buyer, and termination takes place afterwards. Without prejudice to the Supplier’s right to full compensation, including loss of profit.
This provision also applies if the Supplier agrees to a termination at the request of the Buyer for other reasons.
15.1 Contracts between the parties are governed by Dutch law.
15.2 All disputes relating to and/or arising from any contract shall be settled by the court for the district where the Supplier has its business, unless mandatory provisions of Dutch law stipulate otherwise. Nevertheless, the Supplier has the right to have any disputes that may arise under a contract or any further contracts arising thereunder settled by another court with jurisdiction under Dutch law, European regulations or International treaties.
