GENERAL TERMS AND CONDITIONS
Article 1. DELIVERY
1. The trade terms, such as EXW, DAP, FOB, CFR, CIF, shall be interpreted in accordance with the provisions of Incoterms®2020, as amended, unless otherwise provided herein.
The trade terms, such as DDP and DDU, shall be interpreted in accordance with the provisions of Incoterms®2000 as well, as amended, unless otherwise provided herein.
2. Title to and risk of loss of all products of orders placed and purchased by Buyer to and from Seller and Seller agree to sell to Buyer (the “Products” and the “Order”) shall pass to Buyer at the time of delivery.
3. Buyer will promptly inspect Products upon receipt to determine whether any Products included in the delivery are in short supply, defective, or otherwise not in conformity with the GTC.
Article 2. PRICE & PAYMENT
1. The purchase price payable by Buyer for each order purchased hereunder (the “Price”) shall be specified by Seller and Seller reserves the right to review and, upon prior written notification to Buyer, modify the Price from time to time reflecting importing and other cost fluctuations of the Products.
2. For each order Seller will issue to Buyer an invoice for the Price and the applicable taxes and levies. For Buyers in EU countries other than the Netherlands, Seller may at its sole discretion apply the VAT reverse charge mechanism, provided that the Buyer is an entrepreneur and has provided Seller with his VAT number verifiable in VIES (VAT Information Exchange System). For Buyers outside EU countries, Seller may at its sole discretion issue to Buyer an invoice for delivery DAP or “delivered without any applicable taxes and levies in the destination country”.
3. Unless otherwise agreed upon the Parties, payment shall be made wire transfer of immediately available funds to the bank account separately designated from time to time by Seller arriving at least seven (7) days before shipment of the Products from Seller’s warehouse in the Netherlands but within thirty (30) days after issuance of the Order (“Due Date”).
4. In the event that payment by Buyer is delayed more than seven (7) days from Due Date, Seller reserves the right to cancel all or any part of the Order.
5. If Buyer fails to pay for the Order in accordance with the GTC, Buyer shall pay to Seller, ten (10) percent of the Order as liquidated damages and not as a penalty
6. All bank charges outside the Netherlands shall be for the account of Buyer.
Article 3. PRODUCT WARRANTY
1. Seller warrants that the Products shall be free from defects in material, workmanship and manufacturing, shall vest in Buyer good and valid title to such Goods, and shall be free and clear of all liens, security interests, encumbrances, burdens and other claims.
2. Any claim by Buyer on the products delivered shall be notified by Buyer to Seller within fourteen (14) days after the shipment and Buyer shall give Seller an opportunity to examine the Products and/or its samples alleged to be defective without delay, at Seller’s request, and such Products alleged to be defective or samples of the same must be made available to Seller. If the Buyer fails to comply with this Article 3.2, Buyer shall be deemed to have irrevocably and permanently waived such claim.
3. In the event that Seller determines the defects referenced in Article 3.2 (“Defects”) are caused at Seller’s side, Seller shall replace such defective Products with the same type of the Products at its cost and compensate Buyer for its transportation cost and other relevant cost that Seller reasonably determines it should bear. In the event that Seller determines that the Defects are not caused at Seller’s side, Seller shall not provide any compensation to Buyer.
Article 4. LIMITATION ON DAMAGES
The warranties contained in Article 3 are in lieu of all other warranties or conditions, express or implied, including without limitation, those of merchantability or fitness for a particular purpose. In no event shall Seller be liable for damages, direct or indirect, including lost profits, incidental or consequential damages suffered by Buyer, end user or other third party arising from any breach of warranty or breach of contract, negligence or any other legal ground of action, in excess of the purchase price paid by Buyer for the defective Products.
Article 5. INTELLECTUAL PROPERTY RIGHTS
1. Seller shall not be liable to Buyer, and Buyer waives any claim against Seller, for any alleged infringement of patent, trademark, brand, utility model, design, pattern, copyright or any other intellectual property rights arising from, relating to or in connection with the Products.
2. Buyer shall save and hold Seller harmless from all liability for any alleged infringement arising from relating to or in connection with any instruction given by Buyer to Seller relating to the Products.
3. Nothing herein contained shall be construed as transferring any patent, trademark, brand, utility model, design, pattern, copyright or any other intellectual property rights arising from, relating to or in connection with the Products.
Article 6. COMPLIANCE WITH LAWS
Buyer shall conduct its business in strict compliance with all applicable laws and regulations, including but not limited to any anti-corruption laws, such as Treaty on the Functioning of European Union. Buyer shall timely obtain, effectuate and maintain in force any permit, license, exemption, filing, registration and other authorization in respect of the use, handling, transportation, storage, import, purchase, resale, distribution or disposal of the Products required under any applicable law or regulation, including those relating to, among other things, the environment, control of chemical substances and restriction of hazardous substances. Buyer shall not export or re-export the Products, directly or indirectly, without obtaining any license or approval required under applicable international, EU or national export control laws.
Article 7. DEFAULT
Without prejudice to the rights and remedies Seller may have, Seller may, by written notice to Buyer, forthwith terminate sales to Buyer, declare all payments owing by Buyer under the GTC immediately due and payable, delay or suspend delivery of the Orders or stop delivery of the Orders in transit, or resell the Products or hold the Products for Buyer’s risk and account, if (a) Buyer fails to perform any provision of the GTC or any other contract with Seller, becomes unable to pay its debts generally as they become due, becomes insolvent or makes a general assignment for the benefit of creditors; or (b) a proceeding in bankruptcy, winding-up or any other similar proceeding is instituted by or against Buyer. Buyer shall reimburse Seller for all losses or damages arising directly or indirectly from any such events of default or the exercise of any one or more of such remedies by Seller.
Article 8. ANTICIPATORY BREACH
If Seller reasonably anticipates that Buyer will fail to pay for the Orders or to otherwise perform any of its obligations hereunder, Seller may demand adequate assurance, satisfactory to Seller, of the due performance of the GTC by Buyer and withhold delivery of the undelivered Orders. Unless Buyer gives Seller such assurance within a reasonable time, Seller may, without prejudice to any other remedies it may have, cancel the portion of the Orders which relates to the undelivered Orders, and all accounts payable by Buyer to Seller for the Products delivered under the Orders shall, upon Seller’s declaration, become immediately due and payable in cash in full.
Article 9. CONFIDENTIALITY
Buyer agrees that the contents of the GTC, designs, specifications, know-how, other information relating to the Products and all business, financial, commercial and other information, whether in written, electronic or oral or other form, furnished by or on behalf of Seller shall be considered as confidential and shall be maintained in strict confidence and shall not be disclosed to any third party other than Buyer’s professional advisers.
Article 10. NOTICE
Any notice or other communication to Seller or Buyer required or permitted hereunder shall be in writing and sent to the address of such party specified in the GTC or to any other address as such party may designate by notice to the other party given in accordance with this clause. Notice by electronic transmission is written notice. Any notice or other communication hereunder shall be deemed to have been delivered on the date of actual receipt.
Article 11. FORCE MAJEURE
Seller shall not be liable to Buyer for loss or damages, or delay or failure in performing its obligations of the Orders, and may, at its sole discretion, extend the time of delivery of the Orders or cancel unconditionally and without liability the unfulfilled portion of the Orders to the extent so affected due to causes beyond its reasonable control, including, but not limited to, earthquakes, fire, accidents, floods, storms, typhoon, tidal wave, other Acts of God, epidemics and pandemics, quarantine restriction, riots, wars, rebellions, strikes, lockouts or other labor disturbances, national or international emergencies, failure to secure materials or equipment from usual sources of supply, failure of carriers to furnish transportation, failure of communication (including telephone and Internet) and banking systems, government rules, regulations, acts, orders, restrictions or requirements or any other cause or circumstance.
Article 12. GOVERNING LAW
The GTC is governed by and shall be construed in accordance with the laws of the Netherlands without giving effect to the conflicts of law rules or principles thereof. The GTC excludes the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.
Article 13. SETTLEMENT OF DISPUTES
All disputes, controversies or differences arising out of or in connection with the GTC shall be finally settled by arbitration in accordance with Article 272 of the Treaty on the Functioning of the European Union. The place of the arbitration shall be the Netherlands. In the event either party is required to initiate arbitration or legal action to enforce the GTC, the prevailing party shall be entitled to recover its reasonable attorney’s fees and other expenses. In this regard, the normal hourly rate charged by the prevailing party’s attorney shall be deemed reasonable by the parties.
Article 14. SEVERABILITY
In the event that any provision of the GTC shall be held by a proper court of law to be invalid, such invalidity shall not affect the enforceability of the remaining provisions of the GTC.
Article 15. WAIVER
No claim or right of Seller under the GTC shall be deemed to be waived or renounced in whole or in part unless the waiver or renunciation of such claim or right is acknowledged and confirmed in writing by Seller.
Article 16. NON-ASSGNMENT
The GTC is not assignable, in whole or in part, by Buyer without the prior written consent of Seller. Any such attempt by Buyer to assign any of the rights, duties or obligations of the GTC without such consent shall be null and void.
Article 17. HEADINGS
The headings, subheadings, and other captions in the GTC are for convenience and reference only and shall not be used in interpreting, construing, or enforcing any of the provisions of the GTC.
Article 18. ENTIRE AGREEMENT
The GTC constitutes the entire agreement between Seller and Buyer relating to the subject matter hereof and supersedes, cancels and annuls all prior or contemporaneous agreements, understandings, negotiations and communications, whether written, electronic or oral, formal or informal, between Seller and Buyer with respect to such subject matter.
Article 19. LANGUAGE
The GTC is executed in the English language and any translation in other language shall not have any legal effect.