TERMS & CONDITIONS OF SALE AND DELIVERY OF CREATIVE OUTDOOR PRODUCTS B.V., January 2019I. GENERAL
I-1. The following Terms and Conditions ("Terms") apply per 1 January 2019 and are applicable to all quotations, sales and/or deliveries made by Creative Outdoor Products B.V. ("Seller"), a Dutch corporation with offices located at Gewenten 43a, 4704 RE Roosendaal, the Netherlands, and the acceptance of any order is under the express condition upon Buyer's consent to these Terms. This document may be supplied as an attachment of the Distribution Agreement between the Seller and the Buyer and shall subordinate to that Agreement, if such Agreement has been signed by the Seller and the Buyer. If case of any conflict or discrepancy between these Terms and the Agreement, then the provisions of the Agreement shall prevail. No interlineations, deletions, modifications or amendments to these Terms shall be binding on Seller unless agreed to and accepted in writing by Seller.
I-2. All sales are subject to written confirmation by Seller. Receipt by Buyer of Seller's acknowledgment of an order without prompt written objection thereto shall constitute acceptance by Buyer of these Terms. The acceptance of a quote by Buyer and/or the signing or tender of a purchase order shall constitute Buyer's entire acceptance of these Terms. Unless there is any provision to the contrary which has been the subject of a specific and prior written agreement by the Parties, Buyer agrees to waive its own specific and general terms and conditions mentioned in its own purchase orders, invoices, letters or business documents. The Buyer expressly waives its possible own purchase terms and conditions to these Terms by proceeding with the order set out in this document.
I-3. Once an order has been acknowledged by the Seller, such order may not be cancelled by the Buyer without the prior written approval of the Seller. To be valid, cancellation of an order must be done in writing, at least 2 weeks prior to agreed delivery date. In the event of such a cancellation by the Buyer, the Seller reserves the right to assess a cancellation fee of at least thirty-five percent (35%) of the total amount of the respective order.
ll. PRODUCT PRICE QUOTATIONS
Il-I. The quotations or tenders are noncommittal and non-binding in nature. No agreement shall arise until Seller has confirmed in writing Buyer's order. Because no contract is formed until Seller acknowledges Buyer's order, Seller will be entitled to adjust agreed prices on the basis of the average change in the cost price of the goods or services to be delivered and/or activities to be performed by the Seller.
II-2. The weights, dimensions, capacities, performance ratings, characteristics and other data on Seller's catalogues, prospectus, circulars, advertisements, price lists and instructions sheets are mentioned only as general information, These are approximations only and shall not bind Seller.
Ill . DELIVERY
III-1. Unless otherwise specified by the parties in writing, the goods are to be delivered "ex works", at Seller's place of business (as "ex-works"/ EXW is defined by latest version of Incoterms). In the event the Buyer requests alternative shipment or routing, extra packing, shipping and transportation charges thereby resulting will for the Buyer’s account; Seller will not be responsible for any damage caused during shipment.
IV. DELAYS IN DELIVERY
IV-1. The Seller shall use all reasonable efforts to meet any agreed delivery date for the supply of the goods. Any specific delivery date designated in writing by the Seller shall be considered estimated and in no event shall dates be construed as falling within the meaning of "time is of the essence". The Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays. If a specific delivery date is specified in the order or later agreed to by the Seller, then the Seller shall not be liable for any delays in filling such order caused by delays resulting from any and all conditions beyond the control of Seller, including but not limited to (a) accidents to or malfunctions of Seller's or Seller's subcontractors' or suppliers' machinery, (b) differences with employees, strikes, or labour shortage, (c) fire, floods, hurricanes or other natural disaster, (d) supplier or subcontractor delays, including any quantity or quality defects, (e) delays caused by an instrumentality of the Dutch or UK Government or any government or any agency, (f) delays in transportation, (g) restriction imposed by any governmental regu ation, whether valid or invalid, or (h) any other cause beyond the control of the Seller, or any condition without the sole fault or negligence of the Seller.
IV-2. Under no circumstances shall Buyer or Buyer's customer be entitled to any damages for Seller's failure to deliver on time, and Buyer shall indemnify, defend and hold Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages by any third party based on Seller's failure to deliver timely.
IV-3. If Buyer does not accept or pick up the goods at the date specified in the order or later agreed to by Seller, the delivery of the goods shall nevertheless be deemed accepted by Buyer who shall therefore pay for the goods delivered. The storage of the goods arranged by Seller will be at the risk and expense of the Buyer, Seller shall further be entitled, without prejudice to any other right of the Seller in relation to Buyer's failure to take the goods, to recover any expenses properly incurred in performing the contract and not covered by payments received for the goods delivered.
V-1. Unless otherwise agreed in writing, Buyer shall arrange that payment for the goods shall take place in Euro within thirty (30) days net from the deliverydate. In the event Seller feels insecure concerning payment by Buyer, Seller reserves the right to require cash or letter of credit payment terms. The price does not include any present or future federal, state or local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon in connection with these Terms and/or the goods. The Buyer agrees to pay any such taxes or reimburse payment of such taxes by Seller unless agreed in writing otherwise by the Parties.
V-2. In the event payment is not or not fully received when due, interest shall be due at the rate of one percent (1.5%), or the maximum permitted by the applicable law, on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Seller has the right to refuse to deliver goods or services if Buyer is past due on any of its debts to Seller.
V-3. The ownership of the goods shall transfer to Buyer after payment for the ordered goods. Furthermore, Seller shall have the right to retake all goods immediately unless other written arrangements have been made concerning payment only if Buyer is past due. Buyer agrees to make all goods available, shipping ready, for Seller, within five (5) days of receiving notice from Seller of its intention to retake the goods.
V-4. Buyer shall pay all of Seller's costs of collection of any amounts past due, Seller will be entitled to apply payments made by Buyer first to pay those claims it deems appropriate, including interest, late charges, costs of collection, etc.
V-5. Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of Seller to Buyer, with such obligations being those set forth in these Terms or other purchase contract between the Buyer and Seller. Buyer will not be entitled to rescind the contract with Seller if Buyer is in default.
VI. SECURITY INTEREST
VI-I. In order to protect and secure payment of all debts due and owing from Buyer and until Seller has been paid in full, Buyer shall grant to Seller a security interest in the products, and all proceeds and all accounts receivables resulting from the sale of the goods. In connection therewith, Buyer authorizes Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of any possibly required financing statement in the country where the goods are located.
VI-2. Until the Buyer has paid for the goods in full, Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the goods in favour of any person other than Seller unless written approval of such other security interest is given by Seller. Additionally, Buyer agrees to keep the goods insured to their full value until payment is received by Seller. In the event Buyer sells the goods to a third party before payment in full is received by Seller, Buyer agrees to secure its security interest in the goods at the time of sale to its customer in order to protect Seller's interests to the greatest extent possible.
VIl. INSPECTION; RETURNS
VII-1. Unless Seller receives a written complaint with full particulars from Buyer regarding any defective goods or services or other complaints within five (5) business days from the date the goods or services are delivered, the goods shall be deemed to have been delivered in good condition and that the delivery is accepted. Acceptance of the returned goods does not imply acknowledgment by the Seller of the reason for the return. Goods returned by the Buyer to the Seller will remain at the Buyer's risk and the Buyer will owe the agreed amounts until the Seller has credited the Buyer for these goods. The goods accepted by the Buyer from the Seller, which the Buyer has put fully or partly into use, treated, processed or delivered to others, will be considered to conform to the contract.
VIII. LIMITED WARRANTY OF GOODS AND SERVICES; DAMAGES
VIII-I. Seller warrants, for twenty-four (24) months after delivery, unless stated in writing to the contrary, that the goods and services covered by this contract are produced according to usual practices, customs, standards, specifications and tolerances of trade prevailing in the country of origin at the time of production and shall be free from defects in design, material workmanship and shall conform to the Seller's specifications. Regarding components purchased by Seller from its suppliers, whether or not incorporated in any (semi-)finished goods, sold and delivered by the Seller to the Buyer separately or as incorporated part of the (semi-)finished goods, the Seller shall only warrant these components if and to the extent Seller's supplier issued any warranty to the Seller. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES, AND SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE AND WITH RESPECT TO THE ASSEMBLY AND MAINTENANCE/SERVICE INSTRUCTIONS, REGARDLESS OF WHETHER SUCH USE OR PURPOSE IS MADE KNOWN TO THE SELLER OR NOT, ARE EXPRESSLY EXCLUDED. Goods showing only minor defects, not affecting the function of the goods or program shall be accepted by the Buyer and shall not give rise to any claim against the Seller. All claims of damages of any kind during delivery are barred unless reported in writing by the Buyer to the Seller, with full disclosure of particulars within five (5) days after delivery as defined herein. SELLER DISCLAIMS ANY WARRANT THAT THE GOODS CONFORM TO ANY SAMPLES OR MODELS. SELLER DISCLAIMS ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. THE WARRANTIES SET FORTH IN THIS SECTION Vill ARE INTENDED SOLELY FOR THE BENEFIT OF THE BUYER. ALL CLAIMS UNDER THESE TERMS SHALL BE MADE BY THE BUYER AND MAY NOT BE MADE BY BUYER'S CUSTOMERS OR FURTHER DOWN THE DISTRIBUTION CHAIN.
VIll-2. Where a defect is discovered within twenty-four (24) months of delivery from the Seller, the Buyer shall be entitled, at Seller's discretion, to either credit or replacement of the defective product. SELLER SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL, DIRECT OR INDIRECT COSTS OR LOSSES UNDER ANY CIRCUMSTANCES TO THE BUYER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE OF THESE TERMS, UNLESS THIS IS THE RESULT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SELLER. Seller will not replace where the defect is the result of use or handling in a manner, circumstances, or for purposes other than those that have been approved or instructed by the Seller.
VIll-3. The maximum liability of Seller shall be the price actually paid by Buyer to Seller for the goods or service, with a maximum amount of EUR 25,000 which is proven to be defective respectively not in accordance with the agreed specifications.
IX. INTELLECTUAL PROPERTY RIGHTS
IX-I. All registered and unregistered intellectual property rights to, ownership of, and interest in all goods, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by the Seller hereunder or within the framework of the relationship between Buyer and Seller are vested exclusively in the Seller. The Buyer shall not reproduce, transfer, grant, assign, license or use the goods, distinctive marks, and designs and other materials created and/or made available by the Seller and/or otherwise act as maker of and/or party entitled to such rights, except in accordance with these Terms,
IX-2. The Buyer shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller and goods delivered.
IX-3. The Buyer shall not alter, or have altered, modify, or have modified, adapted or otherwise reconfigured, the goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by the Seller.
IX-4. The Seller will indemnify the Buyer against claims of third parties based on the allegation that by using the goods, the Buyer has infringed the intellectual property rights of such third parties, provided that the Seller is promptly notified in writing and given authority, information and assistance with defence of the claim(s). The Seller, at its option, shall (I) procure the right of Buyer to continue to use the goods, (2) modify the goods so that it becomes non-infringing, (3) replace the goods with non-infringing equipment, or (4) remove the goods and refund the purchase price. The foregoing shall not be construed to include any agreement by the Seller to accept any liability whatsoever with respect to Buyer's own or third party equipment, documents or materials used in combination with or related to the goods. THE FOREGOING STATES THE ENTIRE LIABILITY OF THE SELLER WITH REGARD TO INTELLECTUAL PROPERTY RIGHT INFRINGEMENT.
X. TERMINATION RIGHTS
X-1. Seller may rescind any contract if Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of Seller, Buyer's financial condition and responsibility has become materially impaired, In addition, Seller shall have the right to recover damages for non-performance, and any unpaid instalments due on account of this or any other contract between the parties shall become immediately due and payable. If the Buyer - validly - rescind the contract, the Buyer will be obliged to compensate the Seller for any costs incurred by the Seller in connection with making the offer and entering into the contract and the damage and/or loss arising from the rescission.
X-2. The Seller will be entitled to rescind the contract unilaterally with immediate effect, fully or in part and/or to suspend performance of its obligations under the relevant and/or any other contract with Buyer with immediate effect if:
- the Buyer has failed to fulfil one or more of its obligations under this or any other contract or sales terms;
- Buyer has suspended payments or has sought the protection of the bankruptcy courts;
- petition for the involuntary bankruptcy of the Buyer has been filed;
- the Buyer's property on Seller's premises has been attached in execution; a resolution for the dissolution and/or winding up of the Buyer has been adopted; or
- the enterprise operated by the Buyer has been fully or partly transferred to a third party without prior written consent of Seller.
X-3. The Seller will never be liable towards the Buyer for any damages arising from termination of the agreement or from the suspension of obligations under the agreement for the aforementioned reasons.
X-4. If the agreement is terminated, Buyer shall be responsible for payment of the goods already ordered by Buyer unless Seller agrees in wrting that those orders can be cancelled. The amounts invoiced by the Seller for performance prior to or upon termination of the contract will be immediately due and payable after termination. Buyer agrees to pay any of Seller's costs, damages, attorneys' fees and other expenses associated with Seller's termination of any contract with Buyer pursuant to the terms of this section.
XI. FORCE MAJEURE
XI-1. If the Seller is temporarily unable to perform this Agreement because of Force Majeure, it will be entitled to suspend performance of the contract for as long as the Force Majeure lasts. If the Seller is permanently unable to perform any of its obligations to Buyer because of Force Majeure, it will be entitled to cancel the specific order with immediate defect and without any damages whatsoever. Buyer agrees to indemnify, defend and hold the Seller harmless against any claims made by third parties based on whole or in part on Seller's inability to perform because of Force Majeure.
XII. GOVERNING LAW; DISPUTES
XIl-1. For the sale of goods, the rendering of services and/or the supply of any assembly and/or maintenance/service and/or repair instructions by the Seller, these Terms and all transactions between Seller and Buyer, any claim, dispute, or controversy between the Buyer and the Seller arising from or relating to these Terms, their interpretation, or the breach or validity thereof, shall, except to the extent that the Seller is expressly prohibited by applicable super mandatory law, be governed by the laws of the Netherlands, without regard to its conflict of law principles,unless explicitly confirmed in writing otherwise by the Seller. Compliance with any local governmental laws or regulations relating to the location, use or operation of the goods, or its use in connection with other equipment or any (semi-)finished goods of Buyer, shall be the sole responsibility of the Buyer.
Xll-2. Any legal action to enforce the Terms and any transaction between Seller and Buyer shall be finally settled by the competent district court of Breda, the Netherlands, in case the Buyer is located in the European Union. In case the Buyer is located outside the European Union, the Dutch Arbitration Committee (www.nai-nl.org), in accordance with its Rules. Only one arbitrator will be appointed. The hearing(s) will take place in Breda, The English language will be used.
XIV-1. Should any provision of this Agreement be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The Parties further agree to renegotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.
XV-1. The Buyer shall not assign or transfer these Terms or any related contract or purchase order without the prior written consent of the Seller. The Seller shall expressly be permitted to assign or transfer, without the prior written consent of the Buyer, the Seller's right to receive any or all of the payment due from the Buyer under these Terms.