2.1 The agreement is only conlcuded when an order of the buyer has been confirmed in writing by seller.
3. DELIVERY AND RISK TRANSITION
3.1 The deliveries take place from the warehouse of the seller in the Netherlands Ex Works (Inco terms 2010). This unless something different has been agreed between the buyer and the seller in writing.
3.2 Delivery times are never fatal, unless something different has been agreed between the buyer and the seller in writing. A delay in the delivery – for whatever reason – does not give the buyer the right to suspend any obligation of him towards seller.
3.3 The delivery period is extended with the period during which the seller is impeded by Force Majeure to comply with his obligations.
3.4 There is an instance of Force Majeure on the side of the seller if the seller, after the conclusion of the agreement, is impeded to comply with his obligations under this agreement as a consequence of Force Majeure situations as described in the Netherlands Civil Code
3.5 Should, after the confirmation of the order, it become apparent that (a part of) the ordered goods for whichever reason, both within and outside the instances of Force Majeure as referred to in the sections 3 and 4, cannot be delivered within the stated term or not at all, then the seller is authorized to change the agreement. The seller is in that case not liable to pay damages to the buyer. The buyer then has the option to dissolve the agreement for that part of the change or to agree with the changed agreement. The buyer is deemed to have agreed with the changed agreement, if the buyer does not inform the seller, within 5 working days after having been notified about this by the seller, in writing that he wishes to dissolve the agreement change.
4. PROPERTY 4.1 Delivery takes place under and extended retention of property. The property of delivered goods is being retained, until all claims for payment, related to the delivery of goods, have been satisfied.
4.2 Seller is authorized to, when the buyer is late with payment or if there is a sound reason to assume that the buyer will not pay or not pay on time, to repossess all products delivered by seller which have remained the property of the seller in accordance with the previous section.
4.3 If the seller requests goods as his property in accordance with the present article and then repossesses these goods, then the seller will issue a credit note to the buyer for these goods to the amount of the market value of the repossessed goods at the moment of repossession.
5. Title to the Goods Title to the Goods shall remain vested in Seller and shall not pas to the Buyer until the purchase price for the Goods has been paid in full and received by Seller. Until title to the Goods passes:
5.1 Seller shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the Goods;
5.2 Seller and its agents and employees shall be entitled at any time and without the need to give notice enter upon any property upon which the Goods or any part are stored, or upon which Seller reasonably believes them to be kept;
5.3 The Buyer shall store or mark the Goods in a manner reasonably satisfactory to Seller indicating that title to the Goods remains vested in Seller and;
5.4 The Buyer shall insure the Goods to their full replacement value,and arrange for Seller to be noted on the policy of insurance as the loss payee.
Irrespective of whether title to the Goods remains vested in Seller, risk in the Goods shall pass to the Buyer upon delivery.
6. PAYMENT 6.1 Payment of the purchase price is required to take place into a bank account designated by seller.
6.2 The payment for orders within the Netherlands is required to take place within 30 days after the date of the invoice. This unless a different payment term has been agreed in writing between the seller and the buyer.
6.3 If the buyer does not or does not properly comply with his payment obligations towards seller, the one and the other as set forth in section 2 of the present article, then the buyer is in default without a further summation or notification of default being required, Then, the seller has the right to charge to the buyer an interest of 1.5% per month, which is due over the full amount of the invoice and the out-of-court costs to be mentioned hereafter, commencing on the date of the invoice becoming due till the day of complete satisfaction. A part of a calendar month will hereby be regarded as an entire calendar month.
6.4 The buyer is not authorized to deduct from the purchase price any amount because of a counter claim stated by him.
6.5 In case of non timely payment the seller is entitled to compensation for the out-of-court costs. These out-of-court costs are set at at least 15% of the outstanding amount of the invoice including VAT, with a minimum of € 150.00 or a minimum of the lawful regime prescribed by law in the concerned case, notwithstanding the right of the seller on compensation for other damages. From the incoming payments by the buyer in default will firstly be settled these outof- court costs and interest, after which with the remaining amount of the oldest outstanding invoices will be settled.
6.6 If the buyer does not comply with any of his obligations under an agreement towards the seller, a related agreement, agreements concluded beforehand or afterwards, or if seller may reasonably assume that in the future the buyer shall not comply with any obligation as set forth above, then the seller has the right:
a) to demand payment in advance or a proper (additional) surety for payment or an immediate payment upon delivery for payment obligations under all current agreements and all agreements yet to be concluded;
b) To suspend the deliveries (as well as the production or treatment of goods destined for delivery), notwithstanding the right of seller to demand simultaneously or later a surety for the payment. After the buyer has complied after all with his obligations, then the seller has at his disposal as a delivery period the time that is required for the production or treatment taking into account the existing possibilities within the company of the seller and/or in the company of the suppliers of the seller;
c) To dissolve the concerned purchase agreement in its entirety or to the extent that it has not been executed;
d) To dissolve one, more or all current purchase agreements with regard to which the not in default, in its entirety or to the extent that such have not been executed.
6.7 Seller has in the case of dissolution of an agreement because of non-compliance by buyer with his obligations, a right to compensation which it fixed at a percentage of 50% of the amount (to be) invoiced.
7. REPORTING COMPLAINTS 7.1 Samples and/or images in folders, catalogues, and advertisement etc. only give an impression of the article and are non-binding for the seller.
7.2 Reports of complaints about delivered goods need to be made in writing within 14 working days after the buyer has received the goods, or at least within 14 working days after the buyer has reasonably been able to inspect the received goods.
7.3 Reports of complaints about invoices need to be made in writing within 14 working days after the date of the invoice of the concerned invoices, in the absence whereof the invoices shall be deemed to be correct and undisputed.
7.4 The complaints shall be examined as soon as possible after that by seller to determine whether they are founded. Slight deiations or deviations deemed permissible in the trade or technically unavoidable deviations in quality, colour, weight, finish, design etc. shall form no ground for, complaints. If the claim is founded, then the seller has the choice to repair or replace the goods or to grant a price reduction.
7.5 Returns shipments should be free of charge, take place for the risk and the account of the buyer and shall only be accepted by the seller after that he seller has granted permission thereto in writing.
7.6 The buyer is able to return the shipment to the seller, without reason, within 14 days after the transaction.
8. LIABILITY 8.1 The liability of the seller with regard to the delivered goods is, except in case of wilful intent or gross negligence, limited as follows:
a) If seller is liable for direct damages, then that liability is limited to the maximum of the pay-out to be provided by the insurer of seller, or to a maximum of 50% of the amount of the invoice.
b) Under direct damage shall solely be understood:
b.1 ) The reasonable costs for the establishment of the cause and the scope of the damage, insofar as the establishment relates to damage in the sense of the present terms and conditions;
b.2 ) The possible reasonable costs made to let the default performance of seller comply with the agreement, unless these cannot be attributed to the seller;
b.3 ) Reasonable costs, made for the limitation of damage, to the extent that the buyer demonstrates that these costs have led to a limitation of direct damage as referred to in the present terms and conditions.
c) The seller is not liable for indirect damages including in any case but not limited to: consequential damage, missed profits, missed savings and damage because of stagnation in the enterprise.
d) The seller is not liable for damage that is caused as a consequence of any delay of a stated delivery period though any cause, also within and outside the cases of Force Majeure as set forth in article 3 sections 3 and 4.
e) The seller is not liable for damage that is a consequence of an order made by the buyer, after the expiration of a formal final order date (deadline).
f) If the buyer, who in turn is sued in court for damages as a consequence of defects in those goods and the buyer wants to take recourse for those damages on the seller, then he needs to inform the seller within 5 working days about the claim addressed to him, whereby the seller reserves the right for all defences. If the seller has not been informed timely – within 5 working days – then the seller shall not be liable.
g) All rights that the seller can exercise towards its suppliers regarding the said defects and deviations in quality, shall be assigned by the seller to its buyers upon their request.
9. COMPETENT COURT AND APPLICABLE LAW 9.1 The district court for Noord-Holland is exclusively competent to treat disputes, unless the law prescribes differently mandatorily. Nevertheless the seller has the right to submit the dispute to the court that is competent according to the law.
9.2 With regard to this agreement and with regard to the agreements which derive there from, parties are submitting to the laws of the Netherlands.
9.3 In case of a textual difference in meaning between the various language versions of the terms and conditions, the Dutch text shall at all times be binding.