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Article 1 – Offer and Agreement

1.1   These General Terms and Conditions of Sale of Goods (hereinafter: "the General Conditions") shall apply to all offers

1.2   and agreements under which DVIZE B.V. (a private company with limited liability, incorporated under the laws of The Netherlands, which has its registered offices in Wormerveer, The Netherlands) sells goods. DVIZE B.V. is hereinafter referred to as "DVIZE". The goods to be supplied under these General Conditions are hereinafter referred to as "the Products".

No deviations from the General Conditions shall be valid unless expressly agreed in writing.

1.3   All DVIZE's offers shall be without engagement unless expressly otherwise stated in writing in its offer.

1.4   Any applicability of any terms and conditions of purchase or otherwise of a purchaser (which party is hereinafter referred to as "the Purchaser") is rejected.

 

Article 2 - Orders

2.1   The Purchaser shall place all orders with DVIZE in writing containing a specification of the properties of the requested Products. The order shall become binding upon DVIZE after explicit confirmation in writing by DVIZE. Such confirmed order and any underlying agreement are hereinafter referred to as "the Agreement".

2.2   DVIZE reserves the right to refuse (partly or wholly) any order from the Purchaser.

2.3   All documents and data, including any designs, drawings, working and detail drawings, models, computer software, photographs, samples, designs, indicated measurements and quantities, patterns, colours, materials, price lists and/or other data provided in catalogues, folders, web pages and other documents are as accurate as it is reasonably possible, but are not binding upon DVIZE. They may not be considered as exact representations of what DVIZE offers.

2.4   DVIZE reserves the right to amend or improve the Products.

 

Article 3 - Prices

The purchase price of the Products between the Purchaser and DVIZE shall be according to the standard price list of DVIZE in effect on the date of shipment, less any discounts agreed to in writing by DVIZE from time to time. Unless otherwise stated, all such prices are Ex Works (EXW) Wormerveer, The Netherlands (as defined in the Incoterms, then in effect and as published by the International Chamber of Commerce), and are exclusive of Value Added Tax.

 

Article 4 - Delivery and Transfer of Risk

4.1     Delivery shall be made Ex Works (EXW)  in accordance withArticle 3, except when DVIZEhas agreed otherwise.

4.2     Delivery terms and (or) dates are valid by approximation only, and shall never be considered final or of the essence. Failure to ship and(or) deliver the Products within the delivery period or on the delivery date specified, irrespective of the reason therefore, shall not entitle the Purchaser to any compensation for damages, or to any right to suspend or terminate the fulfilment of any its own obligations ensuing from the Agreement or any other agreement between the Purchaser and DVIZE.

If a delivery term is agreed upon, this term will commence on the date on which Dvize has confirmed the order.

If the agreed delivery term or date is not met, then the Purchaser may demand that delivery be effected within a reasonable period, such period to be no less than 30 days.

Should delivery not be effected within the said period, the Purchaser may dissolve the Agreement, not withstanding the previous sentence.

4.3   All risks relating to the Products shall transfer to thePurchaser at the moment of delivery.

 

Article 5 - Payment

5.1     The purchaser shall make all payments to DVIZEto the bankaccount designated by DVIZEno later than the agreed payment term (due date) as stated on the invoice. Notwithstanding the preceding sentence, if the Purchaser fails to make payments in accordance with this Article, DVIZEmay require that the Purchaser makes full or partial payment for the Products in advance, or provides satisfactory security or provides a guarantee that DVIZE's invoices will be promptly paid when due.

5.2     All invoices shall be paid directly and exclusively to DVIZE without recourse to the Purchaser for a discount, deduction or settlement per contra, and without setting off any of the Purchaser's debt against any disputed or undisputed debt owed by DVIZEto the Purchaser.

5.3     As soon as the payment period, as set forth in Article 5.1above has been exceeded, the Purchaser shall be in default by operation of law, without any further notice to that effect being required. From that moment, DVIZEshall be entitled also to claim payment of one (1) percent compound interest per month in respect of the whole of the invoice value, it being understood that a part of a month will be charged as a full month, until full payment of the outstanding amount has been received by DVIZE.

5.4     If payment has not been met pursuant to Article 5.1, thePurchaser shall also be obliged to pay to DVIZEall legal and related costs as well as the costs of legal support, inclusive of any costs not awarded by any court which were incurred or will be incurred by DVIZEin relation to the compliance and fulfilment of the Agreement, unless DVIZEis ruled by the court to be at fault and full costs are awarded against DVIZE.

In addition to the stipulations contained in this Article 5, DVIZEshall be fully compensated for any loss in the event that the Purchaser does not fully comply with its payment obligations.

5.5   Each payment by the Purchaser shall first be applied againstany interest or cost due and then, once these have been settled in full, against the oldest unpaid invoice.

 

Article 6 – Retention of Title

6.1   Without prejudice to the transfer of risk pursuant to Article 4.3, DVIZE shall retain title to all the Products delivered to the Purchaser until all amounts due in connection with the Agreement  have been paid in full, such amounts including all interest and costs to which DVIZE shall be entitled in connection with any default by the Purchaser to comply on time or properly with the Agreement.

6.2   During the reservation of title the Purchaser shall not be entitled to pledge the Products or encumber the Products with any right in favour of a third party. The Purchaser shall have the right to sell the Products in his ordinary course of business, but is obliged, when selling the Products, to agree with its customers on a reservation of title substantially similar to the arrangement in this Article, for a  period no shorter than the term that the Purchaser has not fully complied with its payment obligations to DVIZE. This right to sell the Products which are still subject to the retention of title, shall lapse automatically if any attachment is made against the Purchaser, moratorium of payment is granted to the Purchaser, the bankruptcy of Purchaser has been applied for or declared, or any settlement is made by the Purchaser with creditors.

6.3   The Purchaser shall, for the duration of the retention of title, apply a reasonable degree of care towards the Products, including adequate insurance of the Products against damage caused by fire, theft and other calamities.

6.4   If the Purchaser fails to observe in full its payment and (or) other obligations to DVIZE pursuant to the Agreement, or if there are good reasons for DVIZE to believe that the Purchaser shall not fulfil these obligations in relation to the Products supplied but not paid for, or in the event that third parties claim rights in connection to such unpaid Products, DVIZE shall be entitled to have the Products collected and to recover possession thereof, on either a temporary or a definite basis. Without prejudice to the generality of the foregoing, this right shall  be available to DVIZE when any attachment is made against the Purchaser, moratorium of payment is granted to the Purchaser, the bankruptcy of the Purchaser has been applied for or declared, or any settlement is made with creditors by the Purchaser.

6.5   In the event that any third party claims a right in connection with the Products supplied by DVIZE to Purchaser but not paid for, Purchaser shall be obliged to forthwith notify DVIZE thereof within twenty-four (24) hours after the Purchaser became aware of such claim.

6.6   The costs related to the recovery of possession, including transport and storage shall be at the expense of the Purchaser.

6.7   After recovering possession, DVIZE shall be entitled, but not in any way obliged, to sell the Products to any third party, it being understood that the fair market value or the sales proceeds of such Products, (reduced by any related sales costs) whichever amount is lower, will be deducted from the amounts payable by the Purchaser, without prejudice to the right of DVIZE to receive full compensation for the damage caused by the default of the Purchaser.

 

Article 7 - Suspension

If the Purchaser fails to fulfil promptly and in full any obligation pursuant to the Agreement, or if DVIZE reasonably expects that the Purchaser will fail to fulfil promptly and in full any obligation, DVIZE shall be entitled to suspend the (further) performance of the Agreement (and any other agreement with the Purchaser) until the latter has fulfilled his obligations, without thereby incurring any liability to the Purchaser for damages or warranty, and without prejudice to the right of DVIZE to repossess it's property, to terminate the Agreement according to the Agreement, or to the unrestricted right of DVIZE to claim full compensation for damages.

 

Article 8 - Force Majeure

8.1   In the event of any type of force majeure, DVIZE shall be entitled, without the requirement of any intervention by any court, at its sole discretion to suspend the execution of the Agreement, for a maximum period of  six (6) months, or to dissolve the Agreement in part or in full, and such suspension or termination shall not oblige DVIZE to compensate the Purchaser for any damages or otherwise. After the period of six (6) months as stated in the previous sentence, DVIZE shall be obliged to either opt for performance of the Agreement or for dissolution of the Agreement in whole or in part.

8.2   In the Agreement "force majeure" shall mean any cause beyond the reasonable control of DVIZE-even if such cause was foreseeable at the moment of entering into the Agreement - which permanently or temporarily prevents delays or hinders in whole or in part compliance with the Agreement, including without limitation, natural disaster, war, civil war uproar, strikes, labour disputes, lock out of workers, above average levels of sickness, transport problems, governmental regulations, acts, restrictions or omissions to act of any governmental authority (domestic or foreign), import or export restrictions, fire, breakdowns or accidents to machinery, shortage of materials in the market, and any other major disruption in the enterprise of DVIZE. Force majeure shall also include any impediment to comply with the Agreement caused by the failure of any third party involved by DVIZEto comply with any obligation.

8.3   This Article shall not be construed to prejudice any right which DVIZEmay have under Section 6:75 of the Dutch Civil Code.

 

Article 9 - Warranty

9.1   DVIZE warrants the Products manufactured and (or) delivered by it for a period of six (6) months from the date of delivery to the Purchaser against defects in the material of the Products and (or) in workmanship, provided that they appear under normal installation, use and maintenance as described in DVIZE's operating instructions which accompany the Products.

9.2   The Purchaser shall, without limitation, not be entitled to any claim under the warranty or otherwise if:

a      the Purchaser is in default in relation to any obligation to DVIZE;

b      the alleged defect does not qualify as a defect in connection with the ordinary use of the Products;

c       the alleged defect concerns relatively minor anomalies which are customary in trade and/or technically unavoidable;

d      the Products have been handled negligently, or not in accordance with the instructions given by DVIZE, or are used under conditions other than those for which the Products are designed;

e      the Products are altered, modified other than by, or at the direction of, personnel of DVIZE, or repaired other than in accordance with DVIZE's instructions for the performance of repairs, except in the event of an emergency in which case it is not possible to wait for the assistance of DVIZE; or

f       it concerns expendable items and physical damage caused by improper handling or damage, caused by spillage or exposure to any corrosive environment.

9.3   In the event of a defect appearing during the period of warranty as set out in Article 9.1, the Purchaser shall notify DVIZEof this complaint as well as the nature of the defect in writing as soon as possible, no later than 30 business days after the failure could have been reasonably discovered. The Purchaser's right to make any claim on the basis of the warranty shall immediately lapse upon expiration of this notification term. The Purchaser shall in any such event offer all assistance to DVIZEfree of charge to support DVIZEin repairing the defect within a reasonable time.

9.4   The warranty as mentioned in Article 9.1 is exclusive and all other guarantees, whether express or implied, including any guarantees of merchantability, and any guarantees of fitness of purpose, but without limitation thereto, are excluded.

 

Article 10 - Liability

10.1 DVIZE shall not accept any other liability for non-conformity of the Products other than those warranted in Article 9, nor will DVIZE accept any liability for damage and (or) loss ensuing from or caused by its failure to perform its obligations under the Agreement caused by a wrongful act to the Purchaser, unless caused by an intentional act or intentional omission or gross negligence of DVIZE. DVIZE shall also not accept any liability for damage and (or) loss that can be attributed to an act or omission of the Purchaser, an employee of the Purchaser or a third party acting on behalf of the Purchaser.

10.2DVIZEshall not accept any liability whatsoever for consequential damages, including damage or loss ensuing from late delivery and loss of profit, unless caused by an intentional act or intentional omission or gross negligence of DVIZE.

10.3DVIZE's liability shall at any time be limited to the purchase price of the damaged Products, or, when covered by any insurance of DVIZE, to the sum that is paid for the matter concerned under the relevant insurance policy of DVIZE.

10.4  DVIZEmay impose the obligation on the Purchaser to take the Products that the Purchaser has brought onto the market and which are defective or in which a defect has been discovered, off the market within a reasonable period of time, the length of which is to be determined by DVIZE(recall action). All expenses involved therein and (or) all damages ensuing there from are for the account of the Purchaser, unless DVIZEcan be blamed for the defect in accordance with the Agreement.

 

Article 11 - Indemnification

The Purchaser shall indemnify and hold DVIZE harmless of and from any liability, claims, damages and expenses (including reasonable attorney fees and expenses) for which DVIZE becomes liable or which it may incur by reason of any acts or omissions, that may be committed or caused by the Purchaser, its employees or its customers in connection with the Purchaser's performance under the Agreement.

 

Article 12 – Expiration Term

Unless explicitly stated otherwise in the Agreement, the right for the Purchaser to make any legal claim against DVIZE by reason of the Agreement shall lapse upon expiration of either 1 (one) year from the date of delivery of the Products or 1 year from the date the delivery of the Products should have taken place.

 

Article 13 - Applicable Law and competent Court

13.1 The Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to the Agreement or its formation) shall be governed and construed by Dutch law notwithstanding that, after transfer of Products to another country, the provisions regarding the retention of title of Article 6 shall to their full extent and particularly their scope, be governed by the laws of that country, but only if this leads to a more favourable position of DVIZEAll disputes arising out of or in relation to the Agreement shall be exclusively submitted to the competent court in Amsterdam, The Netherlands.

13.2The applicability of the United Nations Convention on Contracts for the International Sale of Moveable Goods (CISG) is explicitly excluded.