AGREEMENTS FOR SALE, DELIVERY AND PAYMENT
1. General.
1.1 In these Terms and Conditions the following is taken to mean:
– Terms and Conditions (written with a capital T and C): the present General Terms and Conditions;
– Supplier (written with a capital letter S): Rescope BV;
– Other Party (written with a capital letter O): every natural person, legal entity, general partnership, limited partnership, or other entity, which concludes or has concluded an agreement with a Supplier, or to whom/which an offer or tender is made or addressed by or on behalf of a Supplier, or to whom/which or on order of whom/which a delivery is or will be executed by or on behalf of a Supplier, or on the order from, or for the benefit of whom/which, one or more services are or will be executed by or on behalf of a Supplier.
1.2 All offers made, tenders issued, agreements concluded and the performance thereof, and deliveries executed and services executed by or on behalf of the Supplier, are governed by these Terms and Conditions. Derogations from these Terms and Conditions will only have effect if agreed in writing by the Supplier and the Other Party.
1.3 The applicability of general terms and conditions other than these Terms and Conditions is expressly excluded, regardless of whatsoever name by which such other general terms and conditions might be referred and whatsoever form these might have, also included therein the purchase terms and conditions and other general terms and conditions of the Other Party, or which might be applied by the Other Party, and the applicability of such other general terms and conditions is expressly rejected by the Supplier.
By accepting an offer made or tender issued by or on behalf of the Supplier, by entering into an agreement with the Supplier, by accepting a delivery made by or on behalf of the Supplier, or by accepting services provided by or on behalf of the Supplier, the Other Party unconditionally accepts the applicability of these Terms and Conditions and accepts that the applicability of other general terms and conditions than as referred to in this Article is excluded, and the Other Party waives, insofar as relevant, the applicability of other general terms and conditions.
2. Offers.
2.1 Every offer or tender made or issued by or on behalf of the Supplier is without obligation and will not bind the Supplier, except in the event and if and insofar as the Supplier expressly states otherwise in writing, or parties might have agreed otherwise in writing.
2.2 Price lists, brochures, catalogues, leaflets, and other data provided by or on behalf of the Supplier have been compiled as carefully as possible, but nevertheless will only bind the Supplier if and insofar as these have been expressly confirmed in writing by the Supplier. The Supplier will not be obliged to provide details unless agreed otherwise in writing.
2.3 All brochures, catalogues, price lists and leaflets provided related to an offer or tender, and all (technical) data provided therein or thereby in the form of designs, drawings, or other images, models, samples, tables, diagrams, and suchlike and all other data and information provided expressly remain the industrial or intellectual property of the Supplier. The Other Party is expressly prohibited without prior permission in writing from the Supplier from wholly or partially copying any data or information as referred to in the previous sentence and/or disclosing or having these disclosed to third parties in whatsoever manner and/or having third parties use these and/or sell these on or make these available. The use of these materials and these data and information must be strictly limited to personal use by the Other Party in the context of the assignment provided to the Supplier. All materials referred to here and all data and information referred to here must be immediately returned to the Supplier upon first request from the Supplier, also if the Other Party does not conclude an agreement within the offer period, or cancels an agreement.
2.4 The Supplier will be entitled to charge the costs incurred to make the offer or to issue the tender to the Other Party if no agreement is concluded.
2.5 Standard documentation such as inter alia descriptions, instructions and test certificates will be provided free of charge unless stated otherwise by the Supplier. Extra copies of such standard documents and documents that are not standard documents will be charged on to the Other Party.
2.6 The prices referred to apply only to the offered quantities.
3. Coming into effect and contents of the agreement.
3.1 An agreement between the Supplier and the Other Party will come into effect at the time when the Supplier has confirmed in writing the acceptance of an assignment or order from the Other Party; the extent and the contents of the agreement will be as this ensues from the confirmation in writing from the Supplier.
3.2 If an offer or tender is not without obligation having regard to the provisions of Article 2.1 and a binding offer period is set out, the agreement will come into effect at the time when the offer or tender is accepted by the Other Party in a timely manner and in such a manner that the confirmation of the assignment or order or the binding offer will be deemed to have been represented correctly and completely.
3.3 An agreement will only bind the Supplier if this is entered into, or if the confirmation in writing referred to in Article 3.1 is signed, by one or more persons who are authorised to bind the Supplier concerning this, and any agreements or addendums and/or amendments thereto or thereof, and arrangements, promises, etc., concluded, made or arranged by an employee or employees of the Supplier, or by a representative, agent, or other intermediary, or as the case may be by one or more other persons who are not authorised to bind the Supplier concerning this, or as the case may be which are not made in written form, will not bind the Supplier.
3.4 Any amendment and/or partial cancellation or entire cancellation of an assignment or order, by or upon request from the Other Party, can only take place with the prior permission in writing from the Supplier, subject to the condition that the work already executed by the Supplier will be paid for in full by the Other Party; in the event of amendment and/or partial cancellation upon request from the Other Party the Supplier will be entitled to charge on the (extra) costs attached thereto to the Other Party and to record the delivery period once again.
3.5 It applies to work or assignments, for which no offer or confirmation of the assignment will be forwarded due to their nature and extent, that the agreement will come into effect at the time when by or on behalf of the Supplier the performance of the agreement has actually started, while in such an event the invoice will be regarded as the confirmation of the assignment, which will also be deemed to represent the agreement correctly and completely.
3.6 An agreement with the Supplier will be entered into subject to the condition that the suppliers and other contracting parties of the Supplier will fulfil their obligations in a timely and correct manner.
3.7 The Supplier will be entitled upon entering into the agreement or thereafter, prior to commencement of the performance of the agreement on the part of the Supplier, or as the case may be if this performance is continued, to require that the Other Party provides sufficient security with regard to the timely fulfilment by the Other Party of its payment obligations and other obligations.
3.8 The Supplier will be entitled to engage third parties for the purpose of the performance of the agreement; the costs thereof will be charged on to the Other Party in conformity with the provided quotations.
4. Prices.
4.1 Except for if and insofar as a binding quotation applies, each quotation will be without obligation.
4.2 The prices are, unless expressly agreed otherwise in writing: – based on the level of the purchase prices, wages, labour costs, cost of social welfare provisions government charges, transport costs, insurance premiums and other costs applicable at the time of the offer or tender, or (if no offer or tender is made) at the order date; – based on delivery ex-factory or ex-warehouse of the Supplier; – excluding VAT, import duties and other taxes, duties and levies; – excluding costs of packaging, unloading and loading, transport and insurance; and – excluding costs of assembly, installation and putting into operation, unless expressly stated otherwise: in the event last referred to the costs will be specified separately.
4.3 Prices will always be set out or agreed subject to the proviso of exchange rate fluctuations, which will be charged on if the official exchange rate parity at the time of delivery derogates by more than 2% from the exchange rate parity on the date on which the offer or tender was made, whereby the latter-mentioned parity is set at 100.
4.4 In the event of an increase of one or more of the factors determining the cost price, the Supplier will be entitled to increase the order price accordingly, all this with due regard to any existing statutory regulations applicable thereto, always provided that at the time of the confirmation of the order the price increases already known by the Supplier must be stated with the order confirmation.
5. Risk.
5.1 The risk with regard to the goods sold and/or delivered by or in the name of the Supplier to the Other Party transfers to the Other Party: in the event of goods from stock, at the time when these are set aside for the benefit of the Other Party; and in the event of other goods, at the time of the loading of these goods for the purpose of transport to the Other Party, or to a location stated by the Other Party, except if and insofar as this might have been agreed otherwise in writing.
2 Regardless of that which might have been agreed otherwise with regard to the risk, the loading and unloading, the transport and the assembly, installation and putting into operation of the goods will be at all times at the risk of the Other Party.
6. Delivery and delivery period.
6.1 Except for if and insofar as agreed otherwise in writing and without prejudice to the provisions of Article 4.2 of these Terms and Conditions, deliveries will take place carriage paid to the company (or home) of the Other Party, or to another location stated by the Other Party in a timely manner. The Supplier can charge an amount for administrative costs to the Other Party for orders or deliveries, which do not exceed a specific amount.
6.2 Except for if and insofar as might have been agreed otherwise in writing, and without prejudice to the provisions of Article 5 concerning the transfer of the risk the time when the goods are unloaded at the location where these must be delivered applies as the delivery time (the actual transfer); the preceding also applies if the Supplier must assemble, install goods and/or must put the goods into operation.
6.3 The Other Party must directly report any shortfalls, defects and damage in writing to the Supplier within 24 hours after delivery, in the absence of which the goods will be deemed to have reached the Other Party in good order, complete and without damage or defects.
6.4 The Supplier will be entitled to deliver in parts (partial deliveries), which parts can be invoiced for separately, and in that event the Other Party will be obliged to pay the separate invoices in accordance with the provisions of Article 17 of these Terms and Conditions.
6.5 Except for if and insofar as might have been agreed otherwise in writing, the delivery periods stated with the offer or tender by or on behalf of the Supplier do not have the effect of being final deadlines, which means inter alia that in the event of late delivery the Other Party must give the Supplier express notice of default in writing prior to the Supplier becoming in default.
6.6 The Supplier will be obliged to observe the stated delivery date or delivery period as closely as possible, but will never be liable for any exceeding thereof, and in the event of exceeding thereof the Supplier will not be obliged to any compensation. Any exceeding of a delivery date or delivery period will not give the Other Party the right to cancel or terminate the agreement, or as the case may be to refuse to purchase goods. In the event of excessive exceeding of a delivery date or delivery period parties will enter into consultation.
6.7 If goods are not purchased by the Other Party within the delivery date or delivery period, or if the Other Party does not observe an agreed call-off deadline, the Supplier will be entitled to invoice the Other Party for the goods concerned, and the Supplier will be furthermore entitled to store (have stored) these goods at its discretion, but entirely at the expense and risk of the Other Party. In the event of failure to purchase or failure to call-off by the Other Party within the period applicable thereto, the Supplier will at its discretion claim specific performance by the Other Party, or as the case may be terminate the agreement, without prejudice to the right of the Supplier to claim compensation in both events.
7. Transport and packaging.
7.1 The manner of packaging, transport, dispatch, etc. of goods will, if no further instructions in writing are provided by the Other Party to the Supplier, be determined by the Supplier entirely at its discretion and with the due care that can be reasonably expected from the Supplier, which is without prejudice to the provisions of Article 5.2 of these Terms and Conditions with regard to the transport risk.
7.2 Any specific wishes of the Other Party with regard to packaging and/or transport, also including the moving of goods within the company or business site, will only be executed if the Other Party reimburses the costs thereof. The Supplier is furthermore entitled to decide not to honour any specific wishes of the Other Party with regard to packaging and/or transport on which which parties have not expressly agreed in advance.
7.3 In the event that delivered goods do not exceed a specific invoice amount to be determined by the Supplier, the Supplier will be entitled to charge administrative costs.
8. Packaging.
8.1 Only renewable packaging, provided that the packaging is in a good and useable condition, can be taken back by the Supplier at payment of the cost price, and this only on the condition
that this packaging is stated separately, on a cost price basis, in either the delivery documents or in the invoice.
8.2 If the returned renewable packaging, as referred to in Article 8.1, is clearly in a worse condition then when the goods for which the packaging was used or served for the dispatch to the Other Party were loaded, the Supplier will be entitled to charge a payment for this to the Other Party. The Other Party will not be entitled to unilaterally deduct the value of the packaging, or as the case may be any other amount with regard to the packaging, from the amount owed to the Supplier.
9. Force majeure (Non-Attributable Failure).
9.1 If the Supplier is prevented from fulfilment of any obligation toward the Other Party by force majeure, and the force majeure situation is of a permanent or prolonged nature in the opinion of the Supplier, parties can make an arrangement regarding the termination of the agreement in accordance with the Law and the consequences attached thereto.
9.2 If the Supplier is prevented from fulfilment of any obligation toward the Other Party by force majeure, and the force majeure situation will be of a temporary or minor nature in the opinion of the Supplier, the Supplier will be entitled to suspend the performance of the agreement for as long as until the circumstance, cause, or incident that causes the force majeure situation is no longer present.
9.3 “Force majeure” is deemed to be every circumstance, cause or incident, wherever this takes place, occurs, or happens, which prevents the correct, complete and timely fulfilment of any obligation of the Supplier, temporarily or permanently, or makes this impossible or unreasonably onerous, and which circumstance, cause, or incident cannot reasonably be prevented by the Supplier, or which is entirely or partially beyond the control of the Supplier, or which the Supplier cannot exercise any influence over. The following are in any event inter alia regarded as a circumstance, cause, or incident which results in force majeure: fire, explosion, lightning strike, floating ice, low water, high water, tidal wave, spring tide, flood, earthquake, environmental disaster; storm, tornado, cyclone, snow, frost and other weather conditions; strike action, work stoppage, excessive (sickness) absence of personnel, labour disturbance, exclusion, boycott; war (whether or not declared as such), mobilisation, occupation, siege, embargo, act of war; riots, revolution, social unrest; government measures and/or regulations that prevent or delay the fulfilment of obligations, or otherwise make this difficult; lack of means of transport; inaccessibility or non-usability of any eligible transport route, or of any manner of transport; breakdown or interruption of the provision, supply or availability of any energy source; breakdown or failure in, or of, the functioning of any public utility company; breakdown, or interruption or end of the supply of raw materials, semi-finished products and/or finished products; breakdown or delay in, or of, or interruption or end of the supply of parts, spare parts and other items; every circumstance, cause, or incident, resulting from, or related to, the ‘millennium problem’; non-fulfilment of any obligation by a debtor or contracting party of the Supplier (non-fulfilment of any obligation to deliver of one or more third parties is also included therein); technical breakdowns and/or defect, delay, breakdown or interruption in, or of, the repair of machines, materials, equipment, tools and/or instruments; serious sickness and sickness of an epidemic nature.
9.4 The consequences of any circumstance, cause, or incident as referred to in Article 9.3 are also regarded as “force majeure”.
9.5 If the Supplier, as a result of force majeure, is prevented from fulfilment of its obligations with regard to one or some of its clients or purchasers, but not the obligations with regard to all clients and purchasers, the Supplier will be entitled, at its discretion, to decide which of the obligations and toward which client or purchasers the Supplier will provide fulfilment, as well as the sequence in which this will take place.
9.6 The Supplier will be entitled to demand payment with regard to all that which has been provided by or on behalf of the Supplier for the performance of the agreement with the Other Party prior to the circumstance, cause, or incident that occurred or appeared, which resulted in the force majeure.
10. Guarantee/Service.
10.1 With due regard to the provisions elsewhere in these Terms and Conditions, the Supplier guarantees the sound condition of the material used and the promised characteristics and the correct functioning related thereto of the goods delivered by the Supplier. This guarantee applies to a repaired item that is the property of the Other Party, whereby the Supplier is liable for repair defects, which the absence of express guarantee characteristics form part of, which occur within six (6) months after purchase. This guarantee applies to new products for a period of twelve (12) months after the delivery (including any “trial period”, unless agreed otherwise in writing). Guarantees for goods purchased elsewhere by the Supplier are only provided if and insofar as the original manufacturer(s) provides/provide these. Guarantees for products that are not new apply only if and insofar as this is expressly agreed; the provisions of these General terms and conditions apply also to such a guarantee, except for if and insofar as derogation therefrom is made expressly in writing.
10.2 Defects of delivered goods that fall under the guarantee will be, exclusively at the assessment of the Supplier, either repaired, or replaced by a new delivery, if the defects in the opinion of the Supplier and/or the manufacturer can be attributed to construction errors, or errors in or shortcomings of the materials used, as a result of which the goods are unusable for the Other Party for the purpose for which they can reasonably be deemed to be intended.
10.3 Guarantee work is in principle executed within the company of the Supplier (for example in its service department) and during the usual working hours. Guarantee work can only take place outside the usual working hours if a separate service contract has been concluded and only if and insofar as this ensues from that service contract.
10.4 The Supplier will be entitled to execute (have executed) the guarantee work outside its own company, if at the assessment of the Supplier this is in the interest of this work, or as the case may be if the execution of such work is not reasonably possible or is not desirable in the Supplier’s company.
10.5 Goods that are eligible for guarantee work must be dispatched carriage paid to the Supplier. If the Supplier must execute (have executed) guarantee work outside its own company, the Supplier will be entitled to charge the travel and accommodation costs attached thereto to the Other Party, as well as any (special) costs of transport, packaging and insurance, and the costs of the testing equipment and testing materials to be used.
10.6 If it appears that goods offered to the Supplier for remedying or repair do not demonstrate any defects, all costs incurred will be at the expense of the Other Party, also during the guarantee period.
10.7 All guarantee claims will lapse if the Other Party personally executes changes in and/or repairs of the delivery, or as the case may be has these executed, or if the delivery is not or will not be used or treated precisely in accordance with the delivered or applicable (manufacturer’s) instructions for use, or the instructions for use, or is or will be used or treated in another improper manner, or if with regard to the delivery manner a software modification has taken place, which has not been carried out by the Supplier, or if the delivery is or will be used or applied for purposes other than it is intended for, or if the delivery is or will be used in a manner, which could not be reasonably expected by the Supplier.
10.8 Defects that are the result of, or that are partially the result of, or as the case may be that are related to the ‘millennium problem’ concerning computers, semiconductor products and software, all this within the broadest sense of the words, do not fall under the guarantee, and with regard to such defects and any consequences thereof there is therefore no guarantee claim whatsoever in existence.
10.9 No guarantee applies to consumer goods.
10.10 Non-fulfilment by the Other Party of one or more of its obligations will release the Supplier from its guarantee obligations.
10.11 Fulfilment of the guarantee obligation applies as the only compensation in full.
11. Right of retention.
11.1 The Supplier has the right of retention of all goods, which are in the possession of the Supplier by or on behalf of the Other Party, regardless of the cause or reason thereof, for as long as the Other Party has not fulfilled all its obligations toward the Supplier.
11.2 The Supplier will be obliged to manage or have managed the goods referred to in Article 11.1 in accordance with good commercial practice, however the Other Party cannot enforce any right to payment or compensation in the event of the destruction or loss, wholly or partially, of these goods and/or damage to these goods through no fault of the Supplier, and the risk for these goods will therefore remain with the Other Party.
12. Liability.
12.1 Except for if and insofar as might ensue otherwise from mandatory legal provisions concerning (product) liability, the Supplier will not be obliged to any compensation of damage, of whatsoever nature, of any movable or immovable property, or as the case may be personal injury, also including consequential loss, on the part of the Other Party, or as the case may be any third party, which damage is caused or related, directly or indirectly, to any goods or items delivered by or on behalf of the Supplier, or as the case may be is caused by or related to, directly or indirectly, any use or any application or adaptation of such goods or item, or to the storage or keeping thereof, or as the case may be assembly, installation, or putting into operation of such goods or items, and the Other Party expressly indemnifies the Supplier against claims and causes of action, which are based on any such damage, or which are related thereto. With due regard to the provisions set out elsewhere in this Article, the Supplier is in any event not liable for damage or loss directly or indirectly caused by:
– improper use of the delivery, or use thereof for a purpose other than for which it can be deemed to be reasonably suitable, or as the case may be for a purpose other than for which it is suitable in accordance with objective standards, or for a purpose other than for which the Supplier could reasonably assume that it would be used;
– careless conduct of the Other Party, of the personnel of the Other Party, or other persons engaged by the Other Party, or any other person on the part of the Other Party;
– infringement of any patent, utility model, brand, indication of origin, design right, copyright, or related rights, right to a semiconductor product, or the right to the integrated circuit topography thereof, right to a database, or other data collection, or any other right of industrial or intellectual property, or any other exclusive right, or infringement or breach of a licence under any such right, which is the direct or indirect result of the use and/or application and/or publication or reproduction by or on behalf of the Other Party of the data provided, such as for example descriptions, drawings, models, designs etcetera.
12.2 If the Supplier is of assistance during the assembly and/or the making ready for operation and/or the installation of goods, without this being set out expressly in the assignment, this will always take place entirely at the risk of the Other Party.
12.3 Except for in the event of intention or gross negligence on the part of the Supplier, the Supplier will not be liable for any damage as referred to in Article 12.1, which is caused by, or which is the result of, any service provided by or on behalf of the Supplier.
12.4 With regard to any advice provided the Supplier will only be liable for the usual foreseeable and avoidable shortcomings therein, always provided that this liability will never exceed the amount of the payment stipulated and received for the advice concerned.
12.5 Any liability of the Supplier is at all times limited to directly caused damage and is at all times limited to the amount that will be paid by the liability insurer of the Supplier in the event concerned; if necessary the Supplier will provide upon request of the Other Party information of
up to what amount the Supplier is insured for. If the Supplier has no liability insurance, any liability of the Supplier will be limited at all times to the net invoice amount invoiced for the item concerned in the event concerned.
12.6 Fulfilment of the applicable guarantee obligations and/or payment by the insurer of the Supplier, or payment by the Supplier (with due regard to the maximum referred to in Article 12.5) of the established damage will apply as the only compensation. The Other Party expressly and fully indemnifies the Supplier against the remainder.
12.7 Without prejudice to the other provisions of this Article, every claim for compensation will lapse after the passing of one year after the damage occurred or is discovered or acknowledged, or as the case may be could reasonably have been discovered or acknowledged, and in any event after the passing of three years after the delivery.
12.8 With regard to goods that the Supplier has purchased from a third party the provisions applicable (contractual guarantee and/or guarantee) to the transaction concerned will also apply toward the Other Party, if and insofar as the Supplier relies thereon.
13. Complaints.
13.1 Without prejudice to the provisions of Article 6.3 of these Terms and Conditions, any complaints will only be dealt with if these have been received by the Supplier in written form within eight (8) days after the delivery. In the case of hidden defects complaints are only possible within the guarantee period.
13.2 In derogation from the provisions of Article 13.1 complaints with regard to goods for which testing or inspection takes place must be submitted immediately on the date on which the testing or inspection takes place and at the location where this testing or inspection takes place, and thereupon immediately confirmed in writing to the Supplier.
13.3 Complaints can only be dealt with if the nature and the grounds for the complaints are accurately and exactly stated thereby.
13.4 Complaints with regard to an invoice must be submitted to the Supplier in writing within eight (8) days after the date of this invoice.
13.5 If no complaint is made, or a complaint is not made in the prescribed manner, within the applicable period, the delivery will be deemed to entirely comply with the agreement, and to be unconditionally accepted and approved by the Other Party; if a complaint concerning an invoice is not made in the prescribed manner within the period of eight days referred to in Article 13.4, the invoice will be deemed to have been unconditionally accepted and approved by the Other Party.
13.6. If a complaint with regard to the delivery by the Supplier is considered to be well-founded, the Supplier will be exclusively obliged to replace or repair the inferior goods, without the Other Party being able in addition to enforce any right to compensation whatsoever.
13.7 Submitting a complaint will never release the Other Party from its payment obligations toward the Supplier.
13.8 The returning of the delivery, or as the case may be a part thereof, for any reason whatsoever, can only take place after prior express permission in writing and dispatch instructions from the Supplier.
14. Permits and suchlike.
14.1 The Other Party will be responsible for acquiring, in the correct form and in a timely manner, all permits, concessions, licences, permissions and suchlike, which might be necessary for the Supplier to be able to deliver the sold goods, and for the Supplier to otherwise be able to fulfil its obligations; the costs attached to acquiring such permits, concessions, licences, permissions and suchlike will be at the expense of the Other Party.
14.2 The absence of any permit, concession, licence, permission and suchlike as referred to in Article 14.1 will be regarded as an attributable failure (breach of contract) on the part of the Other party, and will not release the Other Party from any of its obligations toward the Supplier, and will not give cause for suspension of the fulfilment of any obligation of the Other Party toward the Supplier.
14.3 The Other Party will be liable for all damage that might be caused directly or indirectly by the absence of any permit, concession, licence, permission and suchlike as referred to in Article 14.1, and the Other Party indemnifies the Supplier against claims and causes of action related to such damage.
15. Intellectual property rights.
15.1 The Other Party will only use the software delivered by or on behalf of the Supplier, which in the broadest sense of the words includes peripheral equipment, technical data, circuit diagram and/or work schedule and/or operating instructions, drawings and all other essential documentation and other data and information, only for personal (internal) use and will in no manner whatsoever supply these on, sell or make these available to any third party, or have these used by any third party.
15.2 If in the unlikely event it might appear that an item sold by the Supplier to the Other Party infringes an industrial or intellectual property right of a third party in the Netherlands, and the Other Party is sued concerning this, the Other Party will be obliged to immediately inform the Supplier of this in writing, and the Supplier will in that event at its discretion either provide the right to use that item, or to modify the item in such a manner that this no longer causes any infringement, or deliver a replacement item, which does not cause infringement, or refund the purchase price to the Other Party after the item has been received back from the Other Party, after deduction of a reasonable payment for the period during which the Other Party had the item in its possession. With regard to infringement of any industrial or intellectual property right outside the Netherlands, the Other Party will not be able to enforce any claim whatsoever against the Supplier and will not have any cause of actions whatsoever.
15.3 The Supplier cannot be held liable in any manner whatsoever with regard to infringement of any industrial or intellectual property right, or as the case may be any other exclusive right, resulting from any modification in or of the item sold or delivered by or on behalf of the Supplier, or from any use of such an item, or any application of such an item, which differs from that which the Supplier has prescribed, or which the Supplier proceeded from, or which is the result of integration with or in, or use, or application combined with goods that have not been sold and delivered by or on behalf of the Supplier, or which is the result of a software modification, which was not executed by the Supplier.
16. Retention of title.
16.1 Without prejudice to the provisions of Article 5 of these Terms and Conditions with regard to the risk and transfer thereof, all goods delivered by or on behalf of the Supplier remain the property of the Supplier until the time of payment in full of all that which the Other Party, on whatsoever basis, owes to the Supplier, also including that which the Other Party will owe to the Supplier after the coming into effect of the agreement, including all interest and costs. In the event of a current account relationship the ownership of the delivered goods will thus remain vested in the Supplier until the time when any balance to be debited from the Other Party has been settled.
16.2 The Other Party will be obliged, for as long as pursuant to the provisions of Article 16.1 the ownership of the goods delivered by or on behalf of the Supplier still accrues to the Supplier, to keep these goods separated from other goods so that these can be easily and clearly recognised as goods of the Supplier.
16.3 In the event of non-payment of any due and payable amount owed by the Other Party to the Supplier, and furthermore in the event that the agreement is terminated, the Supplier will be entitled to claim back as its property the goods of the Supplier with regard to which the retention of title applies, and to take (have taken) the measures related thereto, subject to setoff of any amounts already paid for these goods, which is without prejudice to the right of the Supplier to require compensation for any loss or damage. In the event of such non-payment or termination of the agreement, every claim that the Supplier has against the Other Party will be immediately due and payable in a lump sum.
16.4 The Other Party must upon first request from the Supplier provide a power of attorney for the immediate taking back of the goods that have not been paid for in full, wherever these might be situated.
16.5 The other Party will be entitled to sell or use the goods, with regard to which retention of title applies for the benefit of the Supplier, in the context of usual business operations; however no security interest is permitted to be established on these goods, while the Other Party with regard to these goods is not permitted to execute (have executed) any acts, as a result of which these goods would become a part or component part of one or more goods. In the event that goods are supplied on with regard to which retention of title applies for the benefit of the Supplier, the Other Party will be obliged to personally retain the ownership thereof, and upon first request from the Supplier will assign all claims against the debtor of the Other Party to the Supplier up to the owed amount.
17. Payment.
17.1 Unless agreed otherwise payment must take place net in cash on delivery, or within thirty (30) days after the invoice date, by payment or transfer to a bank or giro account designated by the Supplier. In the event of assembly or installation the payment must take place within thirty (30) days after the day on which the assembly or installation has commenced or, if the (commencement of the) assembly or installation is delayed through no fault of the Supplier, within thirty (30) days after the day on which the assembly or installation could have commenced without the delay, always provided that if the Supplier in accordance with the provisions of Article 31 of these Terms and Conditions has required payment by instalments, the payment will take place in the manner applicable thereto. The Supplier will be entitled to provide a late payment surcharge or payment discount which will be notified in advance. The value day stated in the bank and giro statements of the Supplier on which a payment is received applies as the day on which the payment has taken place.
17.2 Every payment from the Other Party will serve firstly for the payment of the interest owed by the Other Party and the collection costs and administrative costs owed to the Supplier, and thereupon for the payment of the outstanding claims in the sequence of dates, therefore starting with the claim that has been outstanding the longest.
18. Default; interest and costs.
18.1 The Other Party will be in default by the mere expiry of the period within which a payment or the fulfilment of another obligation should have taken place, without any requirement of further demand, summons, or notice of default for this purpose.
18.2 If an amount owed by the Other Party is not paid in a timely manner the Other Party will automatically owe the Supplier, commencing the day on which the payment term has expired, default interest of one and a half percent (1½ %) per month, without prejudice to the other rights accruing to the Supplier in that event; for the calculation of this default interest a month that has already commenced but not yet ended will be included as a full month. The default interest referred to of 1½% per month is a minimum interest, and in the event that this interest calculated on an annual basis might be at any time less than 5% higher than the official interest statutory interest applicable in the Netherlands, this default interest will be automatically increased to such an extent that calculated on an annual basis it will be 5% higher than the statutory interest.
18.3 All judicial and extrajudicial costs, including the costs of the legal status and legal advice to be incurred by the Supplier, will be at the expense of the Other Party. The extrajudicial collection costs will amount to 15% of the amount owed by the Other Party, including the interest owed over this, without prejudice to the right of the Supplier to claim compensation from the Other Party of the collection costs actually incurred if these might amount to more than the 15% referred to.
19. Termination of the agreement.
19.1 In the event of default of the Other Party the Supplier will be entitled to cancel or terminate the agreement without judicial intervention, without prejudice to the right of the Supplier to claim compensation, to make use of the rights ensuing from retention of title and the taking of other (legal) measures, and without prejudice to the right of the Supplier to claim specific performance (whether or not with compensation) instead of terminating the agreement.
19.2 The Supplier can terminate the agreement with the Other Party with immediate effect if:
a. the Other Party is declared insolvent, proceeds with the assignment of the estate or assets, submits an application for moratorium, or the Other Party is granted (provisional or final) moratorium, or attachment is levied on the entire assets, or part of the assets, of the Other Party;
b. the Other Party, if this party is a natural person, dies, or is placed under guardianship, or as the case may be the goods of the Other Party are placed under a regime of administration;
c. if the Other Party is a legal entity, the liquidation of the Other Party has commenced, or as the case may be a claim for the dissolution of the Other Party is instituted, or a resolution for the dissolution of the Other Party will be or has been adopted.
19.3 If an agreement is cancelled or terminated pursuant to the provisions of this Article, the amounts that the Other Party owes to the Supplier at the time of the cancellation or termination will continue to be owed in full, and the Other Party will owe interest and costs with regard to these amounts, in accordance with the provisions of these Terms and Conditions, without prejudice to the right of the Supplier to claim compensation and without prejudice to the other rights accruing to the Supplier.
20. Cancellation by the Other Party.
20.1 The Other Party will have the right to cancel the assignment or agreement in the following events:
– if the Supplier, after exceeding the delivery period, agreed to a new reasonable delivery period between parties and again exceeds this without any justifiable basis, provided that the Other Party has stated in writing prior to the agreed new delivery period that it will refuse purchase in the event of exceeding once again; and
– if the Supplier cannot fulfil its obligation to deliver within a reasonable period and has made this apparent to the Other Party. In the event of cancellation as referred to in this Article any damage on the part of the Other Party will never be compensated.
21. Amendments of the agreement.
21.1 Amendments of an agreement will only be valid if these are made in written form and both parties have agreed to the amendment(s).
22. Headings of the Articles.
22.1 The headings of the Articles of these Terms and Conditions serve exclusively to make the reading thereof clearly laid out and easier, but have no other meaning; these headings cannot be used in particular for the interpretation of these Terms and Conditions.
23. Applicable law; disputes.
23.1 Dutch law applies to all offers, agreements, deliveries and provision of service, made or issued, entered into, conducted, or executed by or on behalf of the Supplier, with the exclusion of the applicability of the United Nations Convention on Contracts for the International sale of Goods (Vienna sales Convention).
23.2 All disputes, also including those which are only regarded as such by one party, which ensue from, or are related to, an agreement, which these Terms and Conditions apply to, or the performance thereof and which cannot be amicably resolved, will be adjudicated by the District Court of the district where the Supplier is established, as the court at first instance, always provided that if a specific court is designated by a mandatory statutory provision as the court with competent jurisdiction, the dispute will be adjudicated by the court thus designated as the court at first instance, all this without prejudice to the right of the Supplier to levy attachment and to take, or have taken, other preliminary measures at these location(s) and before those judicial authorities where this appears desirable for the Supplier.
23.3 The provisions of Article 23.2 do not affect the right of the Supplier to submit a dispute to the court with competent jurisdiction in accordance with the usual rules on jurisdiction, or as the case may be to have this adjudicated by means of arbitration or by means of a binding decision.
24. Validity.
24.1 In the event that any provision of these Terms and Conditions might be wholly or partially invalid and/or unenforceable, resulting from any statutory regulation, judicial decision, or any directive, decision, recommendation or measure of any local, regional, national or supranational authority, or body, or as the case may be otherwise, this will not have any consequences for the validity of all other provisions of these Terms and Conditions. If a provision of these Terms and Conditions might be invalid for a reason as referred to in the previous sentence, but would be valid if this would have a more limited scope or effect, this provision will apply automatically with the most far-reaching or most extensive more limited scope or effect whereby or with which it would be valid.