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GENERAL CONDITIONS OF SALE AND DELIVERY OF MODIFORM B.V.
LEUSDEN, THE NETHERLANDS.
Article 1 - Applicability
1.1 These conditions are applicable to all offers as well as all agreements concluded with Modiform B.V. The purchaser may only rely on stipulations
varying from these conditions if they have been explicitly agreed in writing with Modiform B.V. In this text Modiform BV will also be referred to as ‘us’ or
‘we’, whereas the opposite party of Modiform B.V. will be referred to as ‘the purchaser’.
1.2 Only these general conditions will be applicable, regardless of other provisions in any general conditions applied by the purchaser or changes to
the order confirmation made by the purchaser, unless explicitly agreed otherwise in writing.
1.3 If in the opinion of the competent court any provision in these general conditions is invalid or in conflict with the law, public order or public
morality, the remaining provisions of these general conditions will remain in force between the parties. The parties will replace immediately in consultation such a provision by a provision that approaches as closely as possible the purport of the original provision.
Article 2 - Offer
2.1 Unless explicitly agreed otherwise in writing, all our offers and quotations are entirely without obligation. An agreement is only effected following a written
order confirmation from us or after and in so far as an order is carried out by us.
2.2 Customer-specific manufactured products (MTO = Make-To-Order) are subject to a purchase and payment obligation due to the special production of these products for this particular buyer. The delivery of these bespoke products must take place around the original collection date, as specified by the customer. This date is stated on the order confirmation.
In addition, minimum order quantities apply to these customer specific products (MTO), as stated in this Article. These order numbers vary per product and are visible on the order confirmation.
Article 3 - Prices
3.1 Unless explicitly agreed otherwise in writing, prices are exclusive of turnover tax, in euros and valid for deliveries within the Netherlands free domicile (we
will pay the usual transport costs and the purchaser will pay any import duties and taxes payable) and for deliveries abroad ex works.
3.2 If after concluding the agreement the prices of raw materials, packaging, materials, production, transport, import duties, taxes, foreign currency
exchange rates or wages that relate to the goods sold are increased, we will be entitled to pass on the price increases to the purchaser.
3.3 Payment of the price increases as referred to in Article 3.2 will take place at the same time as payment of the principal sum or the last installment in the
manner described in Article 9.
Article 4 - Packaging
The costs of packaging will be charged in accordance with that contained in our price lists and/or quotations, unless explicitly agreed otherwise in writing.
We will never be obliged to take back delivered packaging or to credit any packaging taken back voluntarily.
Article 5 - Statement of features
Features of goods as stated by us (e.g. in our quotations, price lists, order confirmations and printed matter) including but not limited to dimensions, weights, composition, yield and use are estimates. We will not be liable for minor differences and yield differences, unless explicitly agreed otherwise in writing. Differences of 10% or less will at any rate be regarded as minor.
Article 6 - Industrial and intellectual property rights
Copyright as well as all other intellectual or industrial property rights to all drawings, designs, models, moulds, equipment, production methods or manufacturing techniques and products produced by us (hereinafter referred to jointly as ‘Products’) that are supplied by us to the purchaser or made available to the latter in any manner whatsoever will rest exclusively with us. The above-mentioned rights remain in our ownership regardless as to whether the costs of their production have been charged to the purchaser. The purchaser is not entitled without our prior explicit written permission to copy or imitate the Products in any way and in the case of drawings, designs and models to make them available or demonstrate them to third parties or to use them in a manner other than that agreed.
Article 7 - Retention of title
7.1 All Products delivered and to be delivered by us will remain our exclusive property until all claims we have or will obtain against the purchaser arising from or related to agreements in which Modiform B.V. has undertaken to make delivery, including any claims in respect of penalties, interest and costs, have been paid.
7.2 As long as the Products delivered by us are subject to retention of title, the purchaser may not sell or encumber these Products other than as part of its normal business operations; in particular the purchaser is not permitted in the above-mentioned circumstance to encumber the Products for financing purposes.
7.3 After we have invoked the retention of title we may reclaim the delivered Products immediately. The purchaser must allow us access to the location where these Products are being kept.
7.4 The purchaser must to store our Products with due care, separate and clearly recognizable as the property of Modiform B.V.
7.5 In view of the quality assurance criteria and traceability of the Products in the production chain, the purchaser must ensure that our Products are not mixed with other products. If products are mixed, Modiform B.V. will be assumed to be co-owner of the mixed stock for the invoice value of the original Products delivered by us. Where Products are processed by or on behalf of or on the premises of the purchaser, this will be deemed to be done also by order of Modiform B.V. and Modiform B.V. will obtain the rights of co-ownership of the resulting new Products for the invoice value of the original Products delivered by us.
7.6 If we cannot invoke ownership or co-ownership rights because the Products have been mixed, processed or acquired by accession, the purchaser must
pledge the resulting new Products to us on demand.
7.7 If circumstances arise from which we may reasonably deduce that there is a risk that the Products will not be paid for in time, even if the payment is not yet due and payable, we also will be entitled to take back the Products which are subject to retention of title. The purchaser must inform us if such circumstances arise.
Article 8 - Delivery
8.1 All deadlines, including delivery deadlines, given by us are merely indicative and established to the best of our knowledge and ability based on information known to us at the time of concluding the agreement and will be honored as far as possible. If a deadline is going to be exceeded, we will inform the purchaser of this as soon as possible. In that case we will be entitled to meet our obligations on a date to be agreed with the purchaser. The receipt of the Products to be delivered may not be refused by the purchaser merely because the delivery deadline has been exceeded. Should delivery be refused, delivery will be made by means of written notification to the purchaser. From that moment the Products will be stored at the expense and risk of the purchaser. Exceeding the delivery deadline does not entitle the purchaser to dissolve the agreement or claim compensation, unless the purchaser proves intent or gross negligence of Modiform B.V.
8.2 Unless delivery is made free domicile, the moment at which the Products leave the warehouse will be the moment of delivery. From that moment the Products will be at the purchaser’s expense and risk. In the case of delivery free domicile, the moment of delivery to the purchaser will be the moment of delivery, from which moment the goods will be at the expense and risk of the purchaser.
8.3 For customer-specific products (MTO) ordered by the buyer (see Article 2.2), the following additional conditions apply to Article 8 (delivery according to sub Article 8.1 and sub Article 8.2):
a. The products (MTO) must be delivered around the original collection date, as specified by the customer.
b. If the order is cancelled before production starts, any raw materials purchased specifically for the production of these customer-specific products (MTO) will be
charged to the buyer.
c. If the order for customer-specific products (MTO) is cancelled after production or if the order is not collected within three months of the original collection date
specified by the buyer, the buyer will receive a new invoice and will be charged 80% of the original invoice value.
d. Returns free of charge are not possible unless Article 10.1 and/or Article 10.2 apply.
Article 9 - Payment
9.1 Unless a different payment term has been agreed, the purchaser must pay the invoice within 30 days of the invoice date. If a decision is taken for the winding-up of the purchaser, the competent court declares the purchaser in a state of involuntary liquidation or the purchaser is granted a moratorium on payments, all our claims on the purchaser will be immediately due and payable in full.
9.2 If the purchaser fails to pay the amounts due within the agreed payment term, the purchaser will owe interest of 1.5% per month on the outstanding amount without further notice of default being required. If the purchaser fails to pay the amount due after having received a reminder to do so, the purchaser will also be obliged to pay all judicial and extrajudicial collection costs, including legal costs, incurred or to be incurred by us, increased by interest of 1.5% per month on these collection costs, the amount of which will be set at a minimum of 15% of the total amount payable.
9.3 If in our opinion the creditworthiness of the purchaser so requires, the purchaser must provide us with additional security on demand. If no security or, in our opinion, insufficient security is provided, we will be entitled to suspend or dissolve the agreement concerned without being obliged to pay any compensation and without waiving any other rights under the purchase agreement or the law.
9.4 Any payment by the purchaser, including any payment by third parties of amounts owed by the purchaser, will be applied first to settle the extrajudicial costs owed by the purchaser, and subsequently to settle the interest installment and finally to reduce the current interest and the outstanding amount(s) payable, at the discretion of Modiform B.V.
9.5 The right of the purchaser to defer its obligations towards Modiform B.V. or to set off its claim against Modiform B.V. is excluded, except in the case of the liquidation of Modiform B.V.
9.6 Subject to proof to the contrary, the accounts of Modiform B.V. will serve as proof of its total claim against the purchaser.
Article 10 - Conformity/liability
10.1 The purchaser must check the product delivered by us immediately on receipt for quantity and quality (including visible and, where possible, hidden defects). Any defects must be reported to us in writing by the purchaser within 8 days of receiving the Products, giving an accurate description of the defect. If the purchaser does not report such defects properly, the Products delivered will be deemed to comply with the agreement.
10.2 The purchaser must return to us the Products with the alleged defects on our request and at its own risk within 10 days from the day on which we have confirmed in writing to the purchaser our receipt of the complaint. If the Products delivered are not returned, the purchaser must give us the opportunity to establish whether the alleged defect is actually present. If the purchaser does not return the goods correctly or does not allow us to establish whether the alleged defect is indeed present, the Products delivered will be deemed to comply with the agreement. If we establish that the Products delivered are indeed defective, we will be entitled to dissolve the agreement concerned or rectify the shortcoming or replace the delivery within a reasonable period of time. We will only be liable for any damage incurred by the purchaser as a consequence of attributable failure, an unlawful act or otherwise if the damage is the direct result of intent or gross negligence on our part.
10.3 If we are liable to pay the purchaser compensation for loss, this liability will be limited to the amount of the invoice (excluding BTW (Dutch value added tax) for the delivery concerned, up to a maximum amount of € 100,000.
10.4 Under no circumstances will we be liable for consequential or indirect loss, including loss due to loss of profits or lost savings.
10.5 Should any action be taken against us by third parties for any loss for which we are not liable under the terms of these general conditions, the purchaser will indemnify us in full. The purchaser will be liable for all costs incurred by us arising from the above-mentioned action by third parties against Modiform B.V.
Article 11 - Dissolution
If the purchaser is declared insolvent, applies for a moratorium, fails to meet any obligation to us or fails to do so properly or in time, if all or part of the purchaser’s goods are attached, if the purchaser loses the power to dispose of all or some of its assets, or if the business of the purchaser is closed down or is wound up, we will be entitled without notice of default and without judicial intervention to dissolve all or part of any agreement with the purchaser, without being obliged to pay any compensation for loss, however without prejudice to our right to compensation for breach of contract, the right to compliance in so far as the agreement is not dissolved and any other (statutory) rights.
Article 12 - Transport and transport costs
If the cost of transport are not included in the purchase price, they will be specified with the offer/quotation. The transport of products will at all times be at the purchaser’s expense and risk unless explicitly agreed otherwise in writing.
Article 13 - Force majeure
Circumstances beyond our control and/or not caused by our actions that are of such a nature that compliance with all or part of the agreement cannot be reasonably demanded of us, including but not limited to delayed or faulty delivery by our suppliers for whatever reason, strikes, war, riots, mobilization, civil or foreign commotion, government measures, fire, accidents and natural phenomena, entitle us to dissolve all or part of the agreement or to suspend its implementation without any obligation on our part to pay compensation.
Article 14 - Applicable law and choice of forum
Dutch law will be solely applicable to all legal relationships to which these general conditions apply. The Vienna Sales Convention is explicitly excluded. All disputes arising directly or indirectly from the agreement or these general conditions will settled by the competent court in Utrecht.
Article 15 - Filing
These general conditions of sale and delivery have been filed with the Chamber of Commerce and Industry for Gooi- and Eemland under number 31029469.