GENERAL DELIVERY AND SALES TERMS AND CONDITIONS
Article 1: Applicability
- These general terms and conditions shall apply exclusively to all offers made by or to Maxado, all agreements concluded with Maxado including distribution agreements as well as the performance thereof and all other obligations towards Maxado. The applicability of general terms and conditions used by the purchaser, however called, is specifically excluded.
- Deviations from these general terms and conditions can only be agreed in writing and only apply after explicit written confirmation thereof by Maxado.
Article 2: Offers
- All offers from Maxado are subject to contract and are valid for 3 months, unless otherwise agreed.
- Images, drawings and/or other specifications provided with a quote, offer or order confirmation are only binding on Maxado if it has explicitly confirmed this in writing.
Article 3: Conclusion of and amendment to agreements
- An agreement is only concluded with Maxado once the purchaser has accepted the offer in writing and Maxado has received this written acceptance.
- Oral arrangements, even if these concern amendment or cancellation of an agreement, do not bind Maxado until Maxado has confirmed them in writing.
Article 4: Prices
- The prices and rates are based on the expectation that the factors that determine the prices and rates shall remain the same as at the time when the quote was made and/or the agreement was concluded. In the event of demonstrable amendment to one or more of the cost price-determining factors, such as puchase prices, raw material prices, exchange rates, wages, taxes, rights, duties, freights and the like after the offer and/or conclusion of the agreement, Maxado is entitled to amend the agreed prices and rates accordingly. This does not entitle the purchaser to terminate the agreement.
- The price does not include costs for packaging, dispatch and insurance against risks during transport. All prices apply ex works and do not include VAT.
Article 5: Payment
- Invoices must be paid within 30 days of invoice date without discount or setoff, even if the invoice concerns goods which are delivered on demand or if it concerns partial delivery. Maxado reserves the right in special cases to request payment before delivery of the goods or to deliver cash on delivery.
All costs related to the payment, including exchange and bank costs, are at the other party’s expense.
- The purchaser is not entitled to discount or setoff unless this has been explicitly agreed to by Maxado in writing.
- If the amount owed according to the invoice has not been paid in full within the agreed period, the purchaser is in default without warning or prior notice of default being required and from the invoice date onward owes interest to Maxado on the outstanding amount equivalent to Dutch statutory commercial interest increased by 2%.
- If Maxado passes on an unpaid invoice or part of it for collection to a third party, all judicial and extrajudicial costs including the full costs of legal assis- tance of any kind are at the purchaser’s expense. The extrajudicial collection costs shall be determined according to the Voorwerk II report of the working group for the Netherlands Association for the Judiciary with regard to extrajudicial costs, but shall be at least €500 excluding VAT.
Article 6: Dispatch
- The goods shall be delivered by Maxado at or sent for delivery to the agreed location or locations, in the manner as determined in the agreement or afterwards.
- If Maxado directly or via a third party, whether or not for payment of a deposit or security, has made pallets, packing cases, crates, containers, etc. available for packing and transport, the purchaser is obliged (unless it concerns dispos- able packaging) to return these packing and/or loading materials at its own expense to the address indicated by Maxado, failure to do so meaning that the purchaser is obliged to reimburse Maxado for all loss it has suffered.
Article 7: Delivery
- Delivery shall mean delivery of the entire order unless partial deliveries have been agreed on in which case any partial delivery shall also be deemed a delivery.
- A delivery period commences at the time when the agreement is concluded in accordance with article 3.
- A delivery period agreed or indicated by Maxado is merely indicative, unless explicitly agreed in writing that the delivery period shall be binding.
- A delivery period cannot result in default by Maxado. Default by Maxado as the result of exceeding a delivery period can only be the case if and after Maxado has exceeded a binding delivery period and moreover the provisions of Section 6:82 subsection 1 of the Netherlands Civil Code have been met.
- Exceeding a delivery period and/or a partial or entire termination of the agreement ensuing from it does not entitle the purchaser to compensation.
- In the event of overdue delivery as the result of force majeure on Maxado’s part, in derogation from the provisions of paragraph 2 of this article the provisions of article 11 shall apply.
Article 8: Transfer of title and retention of title
- All goods delivered and to be delivered by Maxado to the purchaser remain the property of Maxado until the purchaser has met all its obligations towards Maxado with regard to the deliveries concerned, previous and subsequent simi- lar deliveries, with regard to additional work carried out or to be carried out by Maxado, as well as with regard to the claims of Maxado against the purchaser due to the purchaser’s failure to fulfil its obligations towards Maxado.
- If Maxado has any serious doubts about the purchaser’s payment capacity, Maxado is authorised to suspend the delivery of the goods until the purchaser has furnished security for the payment to Maxado’s satisfaction. The purchaser is liable for any loss suffered by Maxado as a result of this delayed delivery.
- The risk of the goods to be delivered by Maxado to the purchaser passes to the purchaser at the time that the goods leave Maxado’s business premises/warehouse even if it has been explicitly agreed that Maxado shall take care of transport of the goods.
- If Maxado delays the dispatch at the purchaser’s request, the goods shall in any case still remain the property of Maxado until the goods have been delivered to and received by the purchaser in accordance with article 6, yet the risk of the goods shall already pass to the purchaser.
- All drawings, estimates, diagrams etc. remain the property of Maxado and may not be copied or provided or shown to third parties fully or partially without its written consent. At Maxado’s request they will be returned to it immediately.
Article 9: Intellectual property
- All data, information, images, descriptions, dimensions and the like provided with a quote or offer or otherwise remain the intellectual property of Maxado.
Article 10: Guarantee and complaints
- Maxado provides a guarantee for the goods delivered with regard to manufacturing errors and/or material defects for a period of 6 months following delivery to the purchaser. Claims that are caused during transport will be handled only when they are filed in writing with Maxado within 14 days after date of delivery, substantiated by way of photos.
- Maxado guarantees that the design, the composition and the quality which must be provided pursuant to the order in all respects meet all applicable requirements set by laws and/or other government regulations which were in effect at the time that the agreement was concluded.
- A claim under a guarantee as referred to in paragraph 1 of this article will lapse immediately in the following cases:
- If a purchaser or a purchaser’s customer has repaired a defect or had a defect repaired or has tried to repair it or have it repaired without Maxado’s explicit prior consent.
- If the purchaser does not promptly fulfil its payment obligations towards Maxado, Maxado reserves the right not to perform the guarantee work.
- If the purchaser or the purchaser’s customer or any other third party makes a mistake, such as not using the goods according to the purpose allocated to them by Maxado.
- If the purchaser or the purchaser’s customer amend the delivered goods or have them amended or try to amend them.
- Complaints must be filed in writing with Maxado within 14 days of their discovery, accurately stating the nature and amount of complaints, substantiated by way of a photo, failure to do so meaning that the purchaser cannot enforce any claim against Maxado.
- Return shipments shall only be accepted by Maxado after prior approval by Maxado and if sent carriage paid.
- Accepting complaints does not affect the purchaser’s payment obligation or suspend it.
- Maxado’s liability pursuant to the guarantee is limited to the repair of defects to material or finish occurring within the guarantee period - insofar as reasonably possible – or replacement or provision of monetary compensation such at Maxado’s discretion, all this, however, to a maximum of the invoice value of the goods in question.
- If Maxado has obtained goods from third parties in order to fulfil its obligations, without prejudice to the provision of the previous paragraph it provides the maximum guarantee which these third parties offer Maxado.
- Exchange is not permitted.
Article 11: Force Majeure
- There is a case of force majeure on Maxado’s part if after concluding the agreement Maxado is prevented from meeting its obligations pursuant to this agreement or to complete the preparation thereof due to war, risk of war, civil war, terrorist attacks or actions, riot, acts of war, fire, water damage, flood, strike, sit-down strike, lockout, import and export hindrances, government measures, defects to machines, power supply disruptions, both at Maxado’s company and at the company of third parties from whom it partially or entirely obtains the required materials or raw materials, as well as in storage or during transport, whether or not under its own management, and further due to all other causes which Maxado could not reasonably avoid or of which it could not reasonably prevent the consequences.
- In the event of force majeure Maxado is entitled at its discretion to either extend the delivery time by the duration of the hindrance or to partially or fully terminate the agreement without being required to pay any compensation for damages to the purchaser.
- If the purchaser warns Maxado in writing it is required to state its choice in writing within eight days.
- If Maxado has partially met its obligations at the time that force majeure occurs, it is entitled to invoice the delivered goods and/or performed services separately and early and the purchaser is required to pay this invoice as if it concerned a separate agreement.
Article 12: Liability and exoneration
- Subject to mandatory legal provisions and unless in case of intent or gross negligence on Maxado’s part, Maxado is not obliged to compensate any damage or loss, of whatever nature, direct or indirect, including trading loss, demurrage, damage to movable or immovable goods or injury to persons, both at the purchaser and at third parties, even if this was caused by intent or gross negligence of Maxado’s subordinates and/or by third parties and/or aids engaged by Maxado in the performance of the agreement or by defects to delivered products.
- Maxado’s liability pursuant to the previous paragraph is limited at all times to the amount insured by Maxado with regard to the damage or loss occurring. If there does not appear to be any insurance cover for whatever reason, the liability is limited to the invoice value excluding VAT.
- Any further liability, whether for direct or indirect damage or loss, costs and interests, of whatever nature, is excluded.
- The purchaser indemnifies Maxado against all claims by third parties for damages against Maxado with regard to goods delivered to the purchaser and or work performed for the purchaser.
Article 13: Termination
a. the purchaser does not meet any of its obligations towards Maxado, or does not do so on time or correctly;
b. the purchaser is put into liquidation, or a winding up petition has been filed, applies for or has applied for moratorium of payments, or has been granted a provisional moratorium;
c. attachment is levied on part of or the whole of the purchaser’s property;
d. pursuant to a court ruling the purchaser has become legally incompetent or is deprived of its liberty;
e. the purchaser is dissolved or wound up or, if it concerns a natural person, dies;
f. the purchaser ceases or has already ceased its business operations, transfers its company or an important part thereof, including the contribution of its company to a company to be incorporated or which already exists;
and the purchaser has not yet met all its obligations towards Maxado, Maxado is entitled through the mere occurrence of one of the abovementioned circumstances, without any warning or notice of default or legal intervention being required, to terminate the agreement extrajudicially and/or to claim back the delivered goods as property of Maxado, and/or to claim in full any amount owed to Maxado by the purchaser, without prejudice to Maxado’s right to compensation.
- In order to exercise Maxado’s right to take back, the purchaser grants Maxado consent if this situation should arise to enter the sites and/or buildings where the goods are kept. The purchaser is required to indicate to Maxado where the goods are and to continue to identify these goods as Maxado’s property.
Article 14: Applicable law and rules on the settlement of disputes
- Dutch law applies exclusively to these general terms and conditions and all agreements which they apply to.
- All disputes concerning the conclusion and/or performance of the general terms and conditions and agreements referred to in paragraph 1 shall, insofar as statutory provisions allow, be decided on by the court having jurisdiction in the district of ‘s-Hertogenbosch.
Eersel, January 1st, 2012
These General Terms and Conditions have been filed at the Chamber of Commerce in Eindhoven on January 13th, 2012, under number 17083866.