SALE, DELIVERY AND PAYMENT CONDITIONS
of Intergard Import Export B.V., filed at the Office of the District Court at Almelo 30 August 1999 under no. 43/1999.
1.1 The following conditions apply to every tender, the sale and delivery of goods to, as well as any other transactions with our Purchasers, also including combinations of Purchasers and franchise organizations. Deviations from these conditions apply only when they have been confirmed by us in writing. Any party who orders goods from us is defined as Purchaser even when, at the request of Purchaser the invoice of the delivery concerned is put in the name of another party and/or is sent to another party and/or the invoice is paid by another party.
1.2 Any conditions that deviate from our sales conditions apply only after , and so far as we have confirmed such deviations in writing.
2.1 All quotations and tenders are free of obligation. We consider ourselves bound only through the written confirmation of the order, which also includes confirmation by means of data transmission, or at the moment, or the time the order is actually implemented.
2.2 Every tender is based on the prices stated in our catalogue or price-list, which prices may be subject to interim change. Catalogue prices are therefore guide prices and not fixed sales prices.
2.3 We reserve the right in the event of price increases resulting for instance from an increase in factory prices, to pass on the difference to Purchaser.
2.4 We are prepared to make available to customers, on request, a summary of discounts to be applied by us.
3.1 The delivery periods and dates we quote and maintain are the periods and dates we expect will apply. Although we try to comply with the delivery times quoted, we are unable to guarantee them. In the event a deadline is exceeded, we shall under no circumstances be liable for damages suffered by our Purchaser as a result. Nor shall late delivery entitle Purchaser to cancel purchase.
3.2 The risk of the goods in question transfers to Purchaser as soon as we hand them over to the forwarding agent and the goods actually leave our buildings.
3.3 Upon receipt of a shipment a check should be made immediately for transport damage. Any damage detected shall be reported immediately to the forwarding agent.
3.4 We are entitled to deliver an order in sections and to charge for these sections separately.
3.5 Should our catalogue or other information provided by us compel purchasing in certain packaging units, and the order deviates from this unit, we shall be entitled to round off to this packaging unit.
3.6 Goods shall be delivered by a carrier of our choice.
3.7 We are entitled to charge Purchaser any extra costs associated with following special instructions of Purchaser (such as express shipment or the use of special transport).
3.8 We remain entitled to send goods cash on delivery.
4.1 All of our invoices shall be paid within 14 days of their date.
4.2 We are entitled to demand security from Purchaser for the payment of orders which will be, or have been placed.
4.3 Settlement or claim of any right to discount is not permitted unless agreed in writing.
4.4 Payments received shall first be settled with any costs and interest owed and then with the oldest outstanding item(s).
4.5 In the event of late payment, we shall be entitled to increase the sum owed by 1% per month or part thereof.
4.6 Should Purchaser remain in default after receiving a warning to pay, we shall be likewise entitled to increase the amount owed by collection costs, including the costs of a lawyer, all of which shall amount to no less than 15% of the principal, with a minimum of € 250 increased by VAT.
4.7 Should Purchaser be in arrears, we shall be entitled to cancel any current order(s) or suspend delivery.
4.8 All of our claims shall be forthwith due and payable should Purchaser request bankruptcy, suspension of payments, go into liquidation or in any way lose free disposal of his property or a part of it, or in any other way threaten the recovery of our claim and/or should Purchaser fail to comply with the provisions stipulated by, or by virtue of these conditions.
5. Retention of title
5.1 The purchased goods shall remain our property until the time that all claims we have on Purchaser have been paid in full. Purchaser shall hold the goods received for us during this time and shall in that case be prohibited from disposing of them, subject to the provision that Purchaser is permitted to process the goods or sell them to his customers during the normal operations of his business.
5.2 Purchaser is not permitted to encumber the goods or transfer them to a third party as security or establish a non-possessory pledge or any other form of security on them.
5.3 We shall be entitled at all times to take back goods that are our property and have remained in the possession of Purchaser or elsewhere. Purchaser is required to make possible the return of the goods and to provide us free access to his buildings, storage areas and ground during normal office hours.
6.1 The guarantee provisions set by our suppliers apply to the goods we deliver.
6.2 All rights to a guarantee are void should the operating instructions fail to be observed or the product concerned not be used for the purpose for which it was intended or be handled contrary to the written or oral instructions provided by us or our suppliers.
6.3 Guarantees do not apply to normal wear and tear, nor to damage caused by unprofessional handling.
7.1 Complaints shall be submitted to us in writing within three days of receipt of goods.
7.2 Goods collected at our warehouse(s) shall be inspected by Purchaser upon receipt for visible defects, shortages and suchlike.
7.3 Complaints in no way suspend payment obligations of Purchaser.
8.1 Except for claims relating to a guarantee, we are under no circumstances liable with respect to Purchaser and/or third parties for defects in the goods we deliver.
8.2 We are therefore not liable to compensate economic damages, trading loss, other indirect damages such as assembly costs, damages to life or property, loss of money or other personal properties and damages as a result of responsibility and suchlike of whatever cause, caused to Purchaser and/or third parties by the goods purchased.
8.3 Therefore we are also not liable for: infringement of patents, licences, or other rights of third parties as a result of use of or owing to data provided by the Purchaser.
8.4 In the event we comply with a request of Purchaser to apply for the benefit of Purchaser labels to the goods we deliver giving a name, codes and/or prices, we are under no circumstances liable for any errors of whatever description we make in association with these activities.
8.5 We stipulate this exclusion or limitation of liability for the sake of our employees or third parties who are involved in the implementation of the contract.
8.6 Purchaser has to protect us respectively indemnify us against all of the claims of third parties for damages, through which our responsibility in relation to Purchaser is excluded.
Unless agreed in writing in a separate contract, the following supplementary conditions shall apply to EDI message interchange.
9.1 Any use of EDI for orders is entirely for the risk of Purchaser.
9.2 Purchaser shall derive no rights from any EDI orders he places, other than the explicit acceptance of the order concerned by us (whether or not by means of EDI), without prejudice to the validity and irrevocableness of the order we receive.
9.3 Invoices we send by EDI are equally valid to those sent on paper.
10. Superior forces
10.1 Superior force means at any rate during delay at or non-performance by our suppliers, impossibility to deliver as a result of government-order or regulation, impossibility to deliver as a result of guilt or intention from people who are engaged with us or people of whom we use their services, war, threat of war, civil war, whether or not the Netherlands is directly involved, riot, industrial action, lockout of labourers, fire or other destruction in factory or warehouse, transport difficulties, full or partial strike of transport and damage to the machines and/or tools or other troubles in our company or the company of our suppliers.
10.2 In case of superior force–also when the circumstance which caused the superior force already was to be expected during the conclusion of the agreement- through which we are temporary not able to observe the agreement- Intergard Import Export B.V. is entitled without judicial interference either to postpone the enforcement of the agreement for the duration of the prevention or to dissolve the agreement, without the possibility that we are obliged to pay damages or that we are fined against the other party. The other party is in that case not entitled to dissolve the agreement.
10.3 In case the duration of the superior force is 6 months or in case it is fixed that the superior force will last more than 6 months, both parties are able to conclude the agreement between times without taking into consideration any term of notice.
10.4 In case we have fulfilled partially the agreed commitments at the beginning of the superior force, we are entitled to invoice the performed work or supplied goods separately and between times and the Purchaser has to pay these invoices as if it concerned a separate transaction.
11. Returned shipments
11.1 In the case of correct order implementation, goods shall not be taken back.
11.2 Notification of a returned shipment shall be given within eight working days with mentioning the invoice and/or packer’s number, after which a registration number shall be issued.
11.3 Return shipments without registration number shall not be accepted by us for handling. Return shipments which are not carriage paid shall furthermore be refused.
11.4 In the event of an error on our part, we shall see to the collection of the returned goods after receipt of the complaint form and after assignment of a registration number, and a handling charge shall not apply.
11.5 In all other cases, after receiving permission to return goods, Purchaser shall send back the shipment through our forwarding agent or representative carriage paid with mentioning the registration number, subject to a 20% administrative charge with a minimum of € 10.
11.6 Only returned goods received intact and in factory packaging, with no stickers and/or particulars such as advertising, company name, prices and other markings shall be eligible for crediting.
11.7 The amount of a return shipment may be deducted only after receipt of the credit note.
11.8 Any samples and/or models shall in all cases be charged for. They shall be credited by carriage paid return shipment in undamaged condition within thirty days after delivery date.
11.9 Goods returned through our representative shall be handled by our office only after delivery.
12. Postponement and Dissolution
12.1 Should Purchaser fail to meet his obligations which result from the agreement with us or an agreement that is connected with it indecently or not timely to us, or when there is a good reason for the fear that Purchaser is not able or will not be able to fulfil his contractual obligations against us as well as in case of bankruptcy, suspension of payments, close down, liquidation, or partial transfer of the company of Purchaser among which the transfer of an important part of his claims, we reserve the right to either postpone the execution of each of the agreements for at least 6 months without judicial intervention or to dissolve fully or partial without the possibility that we are obliged to any damages or guarantee and undiminished the rights due to us. During the postponement we are authorised and at the end of the postponement we are obliged to choose for execution or full or partial dissolution of the postponed agreement(s).
12.2 In case of postponement as described in 12.1, the agreed price will be claimable immediately, with deduction of the terms which have already been paid and the costs we have saved as a result of the postponement, and we are qualified to warehouse the raw materials, materials, parts and other things which are reserved, prepared and manufactured by him, for the risk and the account of Purchaser. In case of dissolution according to 12.1, the agreed price is -when no preceding postponement has taken place- claimable immediately, with deduction of the terms which have already been paid and the costs we have saved as a result of the dissolution, and Purchaser is obliged to pay the amount mentioned above and he is obliged to take the things that is a part of the amount, and in case this does not happen we are authorised to warehouse these tings for the account and the risk of Purchaser, or to sell for his account.
12.3 Purchaser is not allowed to claim dissolution of the agreement with retrospective effect.
13.1 Only the District Court at Almelo or the Sub district Court at Almelo has jurisdiction over legal disputes arising between Intergard Import Export B.V. and Purchaser(s) in spite of any stipulations to the contrary in the Code of Civil Procedure.
13.2 Dutch law shall apply to all contracts concluded according to these conditions.