General Terms and Conditions governing Sale and Delivery of Sweex Europe B.V.
These
General Terms and Conditions will be applicable as from 1 September
2002. These General Terms and Conditions will be available for free on
request with Sweex Europe B.V. and will be published on the website of
Sweex Europe B.V.
1. Applicability General Terms and Conditions
1.1
These General Terms and Conditions will be applicable to all offers and
contracts by which Sweex Europe B.V. (hereinafter to be referred to as:
“Seller”) sells and delivers goods from whatever nature to Purchasers.
1.2 Deviations from and amendments to the General Terms and Conditions may only be agreed upon in writing with Seller.
1.3
In as far as the stipulations in the contract deviate from the General
Terms and Conditions, the stipulations in the contract prevail.
1.4 Applicability of possible Purchase- or other General Terms and Conditions is expressly rejected.
1.5
In case any stipulation of these General Terms and Conditions are void
or nullified, the other stipulations of these General Terms and
Conditions will remain in full force.
2. Offers and Proposals
2.1
All offers and proposals are without any obligation, unless explicitly
indicated otherwise in writing in the offer or the proposal.
2.2 The
duration of offers and proposals of the Seller is separately determined
per offer and proposal. The offer or proposal is only in effect during
this period; they do not imply any obligation from the side of Seller
until the order of the Purchaser has
been accepted by the Seller in compliance with these General Terms and Conditions.
2.3
Purchaser can never invoke the verbal promises of the Seller, unless
these promises have been confirmed in writing by the Seller.
3. Formation of contract
3.1
The contract is formed by and at the moment that Seller in writing
confirms the order of Purchaser to Purchaser, or in the absence of this
confirmation delivers the goods to Purchaser pursuant to the
stipulations in article 4.5.
3.2 Seller will reserve the right to refuse an order from Purchaser for reasons of his own or set further conditions thereto.
4. Price and Delivery
4.1
All prices are excluding sales tax (VAT) and other government levies,
as well as possible costs to be made within the scope of the contract,
including shipment, storage and/or administrative charges.
4.2 All Prices include standard package but exclude freight, unless explicitly stipulated otherwise in the contract.
4.3
The Seller will be authorised to increase his prices in case at the
delivery date the costs of labour, materials and transport have been
increased, as well as in case the exchange rates have changed.
4.4
The agreed delivery time will begin at the moment that the Seller
confirms the acceptance of the order of Purchaser. The mere exceeding
of this term of delivery does not bring Seller in default. Exceeding a
term of delivery will never entitle
Purchaser to damages, dissolution of the contract or any other action against the Seller.
4.5
The goods sold by Seller to Purchaser will be delivered to Purchaser
EXW (ex works; Incoterms 2000), unless stipulated otherwise.
4.6 Before delivery, Seller will inform Purchaser in time of the date on which he intends delivering the goods.
4.7 Seller reserves the right to deliver the goods in more than one shipment.
4.8
Purchaser has to inform Seller in writing of complaints about
incomplete or incorrect deliveries within 10 days after delivery, under
penalty of limitation of any claim against Seller.
5. Risks
5.1
The risk of loss or damage of the goods object to the contract, passes
to Purchaser at the moment that the goods are delivered to Purchaser.
5.2
If delivery takes place otherwise than EXW (ex works, Incoterms 2000),
Purchaser immediately has to inform both Seller and the carrier or in
any case within 10 days after delivery of a (partial) loss or damage
which arose during or in
connection with the transportation, under penalty of limitation of any claim against Seller respectively carrier.
6. Payment
6.1 All invoices will be paid by Purchaser in accordance with the payment terms stated to on the invoice.
6.2
Seller is, without notice of default being required, authorised to
claim compensation of the statutory interest on the outstanding amount
in default of payment at the date on which the amount due has become
payable. If Purchaser, after demand
for payment, fails to pay the
claim, Purchaser will, next to the amount due, also be obliged to fully
compensate the extrajudicial costs and costs, connected to the
collection of this claim the amount of which is fixed at a minimum of
15% of the
total amount.
6.3 Purchaser will not be entitled to
set off the amounts due or defer payment, even not if his complaint
concerning incomplete or incorrect delivery is being dealt with or if
the Purchaser has a claim on substitution or repair pursuant to article
8.
6.4 Seller reserves the right to suspend the delivery of the
goods if Purchaser has not fulfilled all his payment obligations
towards Seller.
7. Specification of the goods
7.1
The goods will be delivered as much as possible in conformity with the
specifications provided to Purchaser by Seller. Seller reserves the
right to amend the design of the goods, amendments which will not
decrease the quality of the goods nor
increase the price. Seller
cannot be held liable for damage or any harm rising from incompleteness
or incorrectness of technical data and descriptions referring to the
delivered goods.
8. Warranties
8.1 Seller gives the
Purchaser a warranty on the delivered goods if and in as far as the
producer of these goods has given a warranty to Seller or Purchaser. In
general, this warranty will include:
• That in case in the opinion
of the producer the delivered goods show defects which are the result
of a defect in design, material or construction at the producer’s side
within 6 months after delivery, the producer will either refund the
purchase
price of these goods or repair or replace these goods, this
all on the condition that the goods in question have been operated and
maintained in conformity with the instructions and that these have not
been amended or provided by any other
person than the producer;
• That the agreed warranty term will not be extended or will not restart in case of repair or substitution;
•
That in case the goods have been manufactured by the producer in
conformity with a design of Purchaser, the producer disclaims any
liability for errors in the design and this liability will entirely
remain for Purchaser’s own account and risk.
8.2 Purchaser has to
deliver the goods qualified for substitution or repair for his own
account and risk at the address given by Seller stating the RMA-number
to be asked for at Seller’s.
8.3 In case goods are delivered for
repair or substitution, without a warranty being applicable, or no
defect has been found, Seller is entitled to charge the research costs
and the costs for possibly made repair works to Purchaser.
8.4 Any
other implicit or explicit warranty, either contractual or legal, is
excluded. Seller will particularly not accept any contractual or
statutory liability for any immaterial or material damage which is
caused directly or indirectly through delivery or use
of the goods delivered by Seller.
9. Liability of the Purchaser
9.1
Purchaser disclaims any liability for damage as a result of or
connected with the fulfilment of this contract c.q. the delivery of
goods, except if and in as far as the damage is caused by Seller’s own
acts or omissions, is caused either with the intention
to cause damage or recklessly with the knowledge that these acts would probably rise from this act.
10. Storage
10.1
In case the shipment of the goods is slowed down by circumstances
attributable to Purchaser, Seller will store these goods for the
account and risk of Purchaser and charge the costs involved.
11. Force majeure
11.1
Seller is not obliged to fulfil any obligation if he is impeded to do
so as a result of force majeure. Force majeure in any case includes
lack of material and omissions of suppliers or subcontractors.
11.2
In case of force majeure the delivery time will be extended with at
least the term during which Seller will not be able to deliver due to
force majeure, without this giving the right to Purchaser to terminate
the contract. In case Seller is not able to
deliver the goods to
Purchaser over a period of more than three months after the end of the
agreed delivery period due to force majeure, either Seller or Purchaser
will be entitled to dissolve the contract without it giving rise to any
compensation.
12. Intellectual Property Rights
12.1
Seller reserves the copyrights, as well as all other rights of
intellectual or industrial property on the designs, drafts, pictures,
drawings, models, software and other data provided by him. Purchaser is
not allowed to copy or otherwise use these items
without the written permit of Seller.
12.2
Purchaser is not allowed to remove, damage or change the (trade)marks,
type or identification number or marks which Seller has put on the
delivered goods.
13. Retention of title
13.1 All
goods delivered to Purchaser will remain the full property of Seller
until all amounts which Purchaser is due for the goods delivered or to
be delivered pursuant to the contract, including all costs made by
Seller, are paid.
13.2 If before the acquisition of the property of
these goods, Purchaser uses the goods in normal commercial processes or
assembles with any other products into new products, these will be
considered to be the property of Seller, unless in the new
products
also goods are included to which third party rights apply. In the last
case, the property right will apply in proportion to the purchase price
of all relevant goods. Upon request, Seller will immediately be
provided with the goods or the new
products and is allowed to use
these in normal commercial processes, without losing the right to
recover the damage on Purchaser.
14. Amending the General Terms and Conditions
14.1 These General Terms and Conditions can be amended by Seller.
14.2
The amendments will be published on the website of Seller or through a
mailing to Purchasers. The amendments will enter into force 14 days
after the publication or at a later date which is mentioned in this
publication.
15. Applicable rights and disputes
15.1
Only Dutch law applies to these General Terms and Conditions, as well
as to all offers and contracts to which these General Terms and
Conditions are applicable. The applicability of the Vienna Sales
Convention is expressly excluded.
15.2 All disputes rising from
contracts concluded between Seller and Purchaser will exclusively be
submitted to the competent court in the district of The Hague, unless
pursuant to a mandatory provision a subdistrict court has jurisdiction.
