General Conditions of Sale and Delivery

Maintained by Diss i.d., with its registered office in Putten, the Netherlands, and registered with the Chamber of Commerce for the East Netherlands under number 08192766, where these Conditions are filed.

 

Article 1. Definitions

The following definitions shall apply in these Conditions:

the Vendor:                 Diss i.d.

the Purchaser:            the Vendor’s counterparty in a contract as referred to in Article 2.1 of these Conditions.

 

Article 2. Applicability and validity

2.1 These General Conditions apply to all offers and contracts that the Vendor concludes with a

Purchaser acting in the course of its business or profession.

Although the contracts include all agreements concluded by the Vendor, this concerns sales contracts in particular.

2.2 Any departures from these General Conditions or the contract, or additions to them, will only be valid if and insofar as the Vendor has explicitly confirmed them in writing.

If the Purchaser and the Vendor both use general terms and conditions, these General

Conditions will exclusively apply.

The Vendor explicitly rejects the General Terms and Conditions that the Purchaser declares to apply, and has therefore never accepted them, unless it has already done so in writing.

 

Article 3. Formation of contracts

3.1 All offers, quotations, etc. issued by the Vendor are free of obligation unless the contrary has explicitly been stated in writing.

3.2 The contract or sales contract will be concluded if the Purchaser places an order with the Vendor, and the Vendor accepts this order.

3.3 The Purchaser and/or the Vendor are bound by contracts concluded by persons authorised to do so, and by persons concerning whom the Vendor and/or the Purchaser may assume that they were authorised to do so.

3.4 All contracts and sales contracts will be concluded under the resolutive condition that the Purchaser’s sales of the Vendor’s products are effected from a location that fits in with the Vendor’s distribution policy. For example, the Purchaser is not allowed to sell products at a market and/or at locations that are detrimental to the Vendor’s image due to their nature and/or position. The Vendor is entitled to terminate the contract or sales contract in such cases.

3.5 The Purchaser must inform the Vendor at all times if the Vendor’s products are to be sold at a new or different address from the one agreed upon, or sold in a new manner or a manner other than the one agreed upon (e.g. a web shop).

 

Article 4. Delivery and risk

4.1 Furthermore, the Vendor reserves the right to deliver the goods ordered in partial consignments and to invoice such goods accordingly.

4.2 The Vendor must deliver the goods or send them for delivery to the location or locations agreed upon, in the manner specified in the orders or agreed upon in writing at a later date.

4.3 The goods will be transported at the Vendor’s expense to destinations in the Netherlands, unless the order amount for the goods is less than an amount to be determined by the Vendor, in which case the goods will be transported at the Purchaser’s expense. The aforesaid amount will be determined at the Vendor’s discretion, with the proviso that this amount, depending on the volume and price level, may not exceed EUR 100. Transport of goods to countries other than the Netherlands will be effected at the Purchaser’s expense at all times.

4.4 The Purchaser is obliged to take delivery of the goods at the location or locations agreed upon, on the date on which the Vendor delivers the goods or has them delivered to the Purchaser, or on the date on which the goods are placed at the Purchaser’s disposal pursuant to the contract. If the Purchaser fails to comply with this, it must pay any costs that arise as a result.

4.5 The risk of the goods will pass to the Purchaser on the date on which the goods are legally and/or actually delivered to the Purchaser and thereby brought under the control of the Purchaser or of a third party to be designated by the Purchaser.

4.6 The Vendor is obliged to package the goods in a proper and convenient manner.

4.7 If the transport is payable by the Purchaser, and the Purchaser requests the Vendor to arrange such transport, the provisions of Article 4 paragraph 4 will remain in full force.

 

Article 5. Delivery times and delivery on demand

5.1 The Vendor must deliver the goods on the date or dates stated in the order, or immediately after the end of the delivery period or periods stated in the order. If the Parties have agreed upon a delivery period, this will commence on the date on which the Purchaser has placed the order. If a delivery period is exceeded, the Vendor is entitled to deliver the goods at a later date, but no later than 30 days after the end of the delivery period, without being obliged to pay any compensation. If the Vendor has failed to deliver the goods after expiry of this additional delivery period, the Purchaser is entitled to terminate the contract without any notice of default or judicial intervention being required. Termination of the contract must be effected in writing at all times. Such termination may also include goods delivered pursuant to the same contract, if such goods should have been delivered as a set pursuant to this contract (order confirmation). In the aforesaid case(s), the Purchaser is entitled to send the goods back to the Vendor at the Vendor’s own risk and expense, and to reclaim from the Vendor any payments made for the goods by the Purchaser.

5.2 If certain goods are available to the Purchaser but the Purchaser does not accept such goods, the Vendor is entitled to take one of the following courses of action:

– delivering the goods by means of a written communication from the Vendor, in which case the goods will be stored on the Vendor’s premises or those of the carrier with effect from the date on which the aforesaid communication was sent, at the Purchaser’s own risk and expense, including, inter alia, the risk of quality deterioration.

– or terminating all or part of the contract with the Purchaser in the manner specified in Article 9 below, and selling and delivering the goods to a third party or parties. In such an event, the Purchaser will be liable to pay all losses suffered by the Vendor if such losses are due to the Purchaser’s failure to accept the goods.

5.3 If, in the event of delivery on demand, the Parties have not set any periods for such requests for delivery, the Vendor will be entitled to full payment for a period of three months after the order was placed. If all or part of the goods ordered have not been requested during these three months, the Vendor is entitled to send a written communication to the Purchaser demanding that the Purchaser specify a period of time in writing during which all the goods will be requested. The Purchaser must comply with this demand within five working days, and the goods that have not yet been requested will be stored on the Vendor’s premises or those of the carrier with effect from the first day after expiry of the aforesaid three-month period, at the Purchaser’s own risk and expense, including, inter alia, the risk of quality deterioration.

The period of time to be specified by the Purchaser as demanded by the Vendor may not exceed three months.

 

Article 6. Prices, invoicing and payment

6.1 All prices agreed upon by the Vendor and the Purchaser are in Euros and are exclusive of 21% VAT.

6.2 Payments must be effected net and no later than 14 days after the invoice date, without prejudice to the Vendor’s right to stipulate a down payment when concluding the contract. The Purchaser is obliged to notify the Vendor of any shortcomings in writing within 7 working days. Exercising the right of suspension is limited to the amount corresponding to the price of those goods that were not delivered to the Purchaser or were not delivered in a proper manner, and only after written consent has been obtained from the Vendor. The Purchaser is not entitled to any set-off other than that to which it is entitled by law.

6.3 If the Purchaser concludes a contract with the Vendor for the first time, payment must be effected immediately before delivery of the goods.

6.4 In the event of partial deliveries, the Vendor is also entitled to request payment.

6.5 Subject to the provisions of paragraph 2, the Purchaser will be in default after expiry of the period of time agreed upon if it fails to pay the amounts owing in full within this period, without any notice of default being required. In such an event, the Purchaser will be liable to pay the statutory interest on the amount outstanding with effect from the date on which such amount has become due and payable until such time as the amount has been paid in full, without prejudice to the Vendor’s other rights.

6.6 If the Purchaser fails to pay the amounts owing within the period of time agreed upon, the Vendor will send the Purchaser a one-off reminder free of charge. If the Purchaser fails to pay the amount owing immediately after this, the Vendor is entitled to have the amount collected by legal means or by means of a third enterprise it may consult. In such an event, all costs relating to this will be payable by the Purchaser.

6.7 If the Purchaser exceeds any of the payment terms, the Vendor is entitled to demand payment in cash or payment in advance for subsequent deliveries.

 

Article 7. Force majeure

7.1 Force majeure as referred to in these Conditions shall be taken to mean all circumstances which the Vendor or the Purchaser could not reasonably be expected to take into consideration, and as a result of which the relevant Party could not reasonably be expected by the other Party to perform the contract in the customary manner.

7.2 In the event of force majeure, the Vendor or the Purchaser must immediately notify the other Party in writing.

7.3 The other Party may not claim any compensation in the event of force majeure.

7.4 In the event of force majeure, the Vendor is entitled to suspend performance of the contract for as long as the situation of force majeure continues, or to terminate all or part of the contract without judicial intervention and without being obliged to pay any compensation.

7.5 If a case of force majeure results in a date or period of time being exceeded, including any additional delivery period of 30 working days, the other Party – contrary to the provisions of paragraph 4 – will be entitled to terminate the relevant contract by means of a written statement. Such termination does not include goods already delivered, except for goods that should have been delivered as a set pursuant to this contract (in accordance with Article 5 paragraph 1).

 

Article 8. Retention of title and other forms of security

8.1 Without prejudice to the provisions in these Conditions, all the goods supplied by the Vendor at any time will remain the property of the Vendor until payments made by the Purchaser have cancelled all the Vendor’s claims against the Purchaser that fall within the scope of Book 3 Article 92 of the Dutch Civil Code, for whatever reason and irrespective of whether such claims have become due and payable, including interest and costs. Before effecting payment in full, the Purchaser is not entitled to pledge the goods to third parties or to transfer ownership of such goods, except for goods supplied by the Vendor and transferred by the Purchaser in the normal course of business. In the event of a breach of this provision, and in the event of total or partial applicability of Article 9, the Vendor is entitled to repossess all the goods it has supplied from the place where such goods are stored, or to have them repossessed by a third party, without any authorisation from the Purchaser or the court being required. In such an event, all claims on the part of the Vendor will likewise be immediately due and payable in full.

8.2 In the event that the Vendor wishes to exercise its rights as specified in paragraph 1, the Purchaser hereby gives its unconditional and irrevocable consent to the Vendor or a third party to be designated by the Vendor to enter all locations where the Vendor’s property is stored or may be stored, and to take all such property away with it.

8.3 The Vendor is entitled either to retain the goods until the amount owing – including interest, costs and compensation – has been paid in full, or to sell the goods to third parties. In the latter case, the net proceeds will be deducted from the total amount payable by the Purchaser.

 

Article 9. Suspension and termination

9.1 In the event that the Purchaser or the Vendor fails to comply with any obligation vis-à-vis the other Party specified in any contract whatsoever, or if either Party is granted a moratorium or the granting of such moratorium is imminent, or is declared bankrupt, or decides to wind up its company, or if either Party receives information indicating with reasonable certainty that the other Party will probably be unable to fulfil its obligations, the first Party is entitled to suspend or terminate all or part of all contracts existing at that time by registered letter or to declare such contracts terminated, without judicial intervention, without prejudice to the first Party’s other legal rights in such an event.

9.2 Termination of such contracts will render any existing claims between the Parties immediately due and payable.

 

Article 10. Complaints

10.1 The Purchaser must abide by the regulations governing the manner of storing and handling the goods supplied. The Purchaser must inspect the goods on delivery or as soon as possible after delivery, to the extent which could reasonably and/or normally be expected of it.

10.2 The Purchaser must inform the Vendor of any complaints relating to deliveries directly and in writing. Complaints concerning visible defects must be received by the Vendor no later than 7 working days after receipt of the goods. In the event that the Purchaser could not reasonably be expected to discover the defects until later on (i.e. latent defects), complaints must be received by the Vendor no later than 7 working days after the Purchaser discovers the defects. Complaints must be submitted in the form of a written communication stating the precise nature of the complaint and the grounds for submitting it, and also stating the relevant invoice number.

Submitting a complaint will result in suspension of payment obligations pertaining to the disputed goods pursuant to Article 6 paragraph 2.

10.3 If a complaint is found to be valid, the Vendor is obliged to repair the defective goods or to replace them with other goods in accordance with the order, provided that the following conditions are fulfilled:

– if the complaint pertains to visible defects: the new deliveries must take place before the delivery date or before the end of the delivery period, plus the term of the additional delivery period if entitlement thereto exists, or no later than 10 working days after the goods have been returned and received by the Vendor.

– if the complaint pertains to latent defects: the new deliveries must take place no later than 10 working days after the goods have been returned and received by the Vendor, but no later than 15 working days after delivery or no later than 15 working days after the delivery date or after expiry of the delivery period.

10.4 If it is not possible to effect a new delivery pursuant to Article 10 paragraph 3, or to effect such delivery within the time specified, the Purchaser is entitled to deem the sales contract to be terminated, without any notice of default or judicial intervention being required. The provisions of Article 5 paragraph 1 apply mutatis mutandis to such termination.

10.5 Goods may not be returned in connection with complaints unless they are preceded or accompanied by the information specified in the fourth sentence of paragraph 2. If, notwithstanding this regulation and in contravention of it, the Purchaser returns goods to the Vendor, or returns goods to the Vendor without valid grounds for so doing, the Vendor will retain such goods at the Purchaser’s own risk and expense, insofar as the Vendor does not refuse to accept them, without any acknowledgement of the validity of any claim to guarantee being inferred therefrom.

The costs of returning goods to the Vendor without valid grounds will be payable by the Purchaser.

 

Article 11. Guarantee and liability

11.1 Communications made by the Vendor or on its behalf and relating to the quality, composition, options for use, properties and handling of the goods supplied may only be considered as a guarantee if the Vendor has explicitly confirmed these in the shape of a guarantee in writing.

11.2 If, during the guarantee period, the Purchaser carries out repairs or alterations on the goods or has such repairs or alterations carried out by a third party without prior consent from the Vendor, or fails to fulfil its payment obligations, the guarantee obligation will lapse with immediate effect.

11.3 Without prejudice to the foregoing, the Vendor can never be held liable for any consequential loss (unless the Vendor or its management causes such loss by intentional act or gross negligence) such as loss resulting from situations of force majeure, including business interruptions and loss due to delays or disturbances or any other consequential loss. Nor can the Vendor be held liable for any direct or consequential loss caused to or by goods supplied by the Vendor, or for damage caused to persons and goods.

11.4 Any liability of the Vendor of whatever nature will always be limited to the relevant contract amount (excluding VAT) for each and every occurrence, in which regard an interrelated series of events is deemed to be one sole occurrence.

11.5 Except in the event of intentional act or gross negligence, the Vendor must indemnify the Purchaser against claims made by third parties for compensation relating to products supplied by the Vendor, as referred to in paragraph 1. If any third party lodges a claim against the Purchaser in this connection, the Purchaser must immediately notify the Vendor of this, thereby placing the necessary information at the Vendor’s disposal. In all other respects, the Purchaser must refrain from taking any further action in the matter unless the Vendor gives its consent thereto or unless the Vendor fails to contest the third party’s claim.

 

Article 12. Returning non-defective goods

12.1 The Vendor will collect the goods free of charge if the reasons for returning them are valid.

12.2 Returned goods will be only credited on condition that such goods are still suitable for sale, which will be assessed by the Vendor.

 

Article 13. Copyrights

13.1 Diss i.d. will remain the owner of the intellectual property rights, including copyrights and/or design rights pertaining to images, drawings, designs, models, calculations and other specifications, including catalogues or prospectuses pertaining to the goods supplied.

13.2 The Counterparty is only allowed to make use of the rights specified in paragraph 1 in the broadest sense of the word, including but not limited to making reproductions, on condition that the Counterparty has obtained written consent thereto from Diss i.d.

13.3 The Counterparty indemnifies Diss i.d. against all action by third parties based on infringement of intellectual property rights relating to the commission given to Diss i.d. by the Counterparty.

 

Article 14. Modification of the contract

Any amendments and additions made to any contracts concluded will only be valid on condition that the Vendor and the Purchaser have explicitly agreed upon them in writing.

 

Article 15. Disputes and applicable law

15.1 All disputes relating to a contract or to the performance of a contract between the Purchaser and the Vendor that cannot be resolved in joint consultations between the Parties will be submitted to the competent court within whose jurisdiction the Vendor has its place of business, unless the subdistrict court is competent to hear such disputes.

15.2 All contracts between the Purchaser and the Vendor are subject to Dutch law. With respect to the contract as referred to in Book 6 Article 247 paragraph 2 of the Dutch Civil Code, it is explicitly stipulated that Book 6 Chapter 3 Part 5 of the Dutch Civil Code does not apply.

 

Putten, 28 January 2014

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