| 1. |
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GENERAL |
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| 1.1 |
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These General Terms and Conditions of Sale (“Conditions”)
govern the offering,
sale and delivery of all goods and/or services (the goods and
services herein both
separately and jointly referred to as: the “Goods”)
from or on behalf of DSM Xplore
(“Seller”) to customer (“Customer”)
and apply to all similar dealings between Seller
and Customer. |
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| 1.2 |
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These Conditions supersede any and all prior oral and written
quotations,
communications, agreements and understandings of the parties
in respect of the
sale and delivery of the Goods and shall apply in preference
to and supersede any
and all terms and conditions of any order placed by Customer
and any other terms
and conditions submitted by Customer. Failure of Seller to object
to terms and
conditions set by Customer shall in no event be construed as
an acceptance of any
terms and conditions of Customer. Neither Seller’s commencement
of performance
nor Seller’s delivery shall be deemed or constituted as
acceptance of any of
Customer’s terms and conditions. If these Conditions differ
from any terms and
conditions of Customer, these Conditions and any subsequent
communication or
conduct by or on behalf of Seller, including, without limitation,
confirmation of an
order and delivery of Goods, constitutes a counter-offer and
not acceptance of such
terms and conditions submitted by Customer. Any communication
or conduct of
Customer which confirms an agreement for the delivery of Goods
by Seller, as well
as acceptance by Customer of any delivery of Goods from Seller
shall constitute an
unqualified acceptance by Customer of these Conditions. |
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| 1.3 |
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These Conditions may only be varied or waived by a duly executed
written
agreement between Seller and Customer. |
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| 1.4 |
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By contracting on the basis of these Conditions, Customer
agrees to the
applicability thereof in respect of future dealings as described
in paragraph 1.1 ,
even if this is not expressly stated. Seller shall be entitled
to update and/or amend
these Conditions regularly and by and as of the moment of notifying
Customer of
such update or amendment or by sending Customer the updated
or amended
Conditions, these revised Conditions shall apply to all dealings
between Seller and
Customer. |
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| 1.5 |
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Seller and Customer agree that valid, enforceable and binding
obligations may
result from electronic means of communication. Any electronic
communication
between Seller and Customer shall be considered to be a “writing”
and/or “in
writing”. |
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| 2. |
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QUOTATIONS, ORDERS AND CONFIRMATION |
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| 2.1 |
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uotations, made by Seller in whatever form, are not binding
upon Seller and
merely constitute an invitation to Customer to place an order.
All quotations issued
by Seller are revocable and subject to change without notice.
Orders are not
binding until accepted by Seller in writing (“Seller’s
Confirmation”). Seller is always
entitled to refuse an order without indication of its reasons. |
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| 2.2 |
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Price quotations based on estimated or projected quantities
are subject to increase
in the event that actual quantities purchased during the specified
period are less
than the estimated or projected quantities. |
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| 2.3 |
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Oral statements and agreements made by Seller’s employees,
officers,
representatives and/or agents are not binding upon Seller unless
and only to the
extent that such oral statements are confirmed or made in writing
by duly authorized
representative(s) of Seller. |
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| 2.4 |
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Except as provided for in paragraph 7.3, any samples supplied
to Customer are
supplied solely for information purposes and in no way imply
any express or implied
conditions or warranties of any kind, including as to quality,
description,
merchantability, suitability or fitness for any purpose and
Customer shall be deemed
to have satisfied itself as to such matters prior to ordering
the Goods. |
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| 2.5 |
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Each delivery shall stand as a separate transaction and any
failure to deliver shall
have no consequences for other deliveries. |
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| 3 |
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PRICES |
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| 3.1 |
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Prices and currencies of Seller’s Goods are as set out
in Seller’s Confirmation.
Unless agreed otherwise, Seller’s prices include standard
packaging but do not
include Value Added Tax or any other similar applicable taxes,
duties, levies or
charges in any jurisdiction levied in relation to the Goods
or the delivery thereof
(“Taxes”). The amount of any Taxes levied in connection
with the sale of the Goods
to Customer shall be for Customer’s account and shall
be added to each invoice or
separately invoiced by Seller to Customer. If Seller grants
a discount, this discount
only relates to the delivery specifically mentioned in Seller’s
Confirmation. |
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| 3.2 |
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Unless the prices have been indicated as firm by Seller in
Seller’s Confirmation,
Seller is entitled to increase the price of the Goods still
to be delivered, if the cost
price determining factors, have been subject of an increase.
These factors include
but are not limited to: raw and auxiliary materials, energy,
products obtained by
Seller from third parties, wages, salaries, social security
contributions,
governmental charges, freight costs and insurance premiums.
Seller shall notify
Customer of such increase. |
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| 4 |
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PAYMENT AND CUSTOMER'S CREDIT |
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| 4.1 |
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Unless expressly stated otherwise in Seller’s Confirmation,
payment shall be made
on the basis of net cash, to be received by Seller within thirty
(30) days following the
date of Seller’s invoice for the Goods by means of transfer
into the bank account
mentioned on the invoice. All payments shall be made without
any deduction on
account of any Taxes and free of set-off or counterclaim. |
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| 4.2 |
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With regard to payment of the price for Goods, time is of
the essence. Seller may,
without prejudice to any other rights of Seller, charge interest
on any overdue
payment at the higher rate of either twelve percent (12%) per
annum or one and a
half times the prevailing rate under applicable law per annum,
but not to exceed the
maximum interest rate permitted under applicable law, from the
due date computed
on a daily basis until all amounts outstanding are paid in full.
All costs and expenses
incurred by Seller with respect to collection of overdue payments
(including, without
limitation, reasonable attorney’s fees, expert fees, court
costs and other expenses
of litigation) shall be for Customer’s account. |
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| 4.3 |
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Every payment by Customer shall in the first place serve to
pay the judicial and
extra-judicial costs and the interest owed by it and afterwards
shall be deducted
from the eldest outstanding claim regardless of contrary advice
from Customer. |
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| 4.4 |
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Any complaint with respect to the invoice must be notified
to Seller within eight (8)
days after the date of invoice. Thereafter Customer shall be
deemed to have
approved the invoice. |
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| 5. |
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DELIVERY AND ACCEPTANCE |
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| 5.1 |
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Unless expressly stated otherwise in Seller’s Confirmation,
all deliveries of goods
shall be Ex Works Seller’s production facility, as the
term Ex Works shall have the
meaning assigned to same in the latest version of INCOTERMS
published by the
International Chamber of Commerce at Paris, France, at the time
of Seller’s
Confirmation. |
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| 5.2 |
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Unless expressly stated otherwise in Seller’s Confirmation,
any times or dates for
delivery by Seller are estimates and shall not be of the essence.
Seller is entitled to
deliver the Goods as stated in Seller’s Confirmation in
parts and to invoice
separately. In no event shall Seller be liable for any kind
of indirect or consequential
damages caused by any delay in delivery. Delay in delivery of
any Goods shall not
relieve Customer of its obligation to accept delivery thereof.
Deviations in quantity of
Goods delivered from that stated in Seller’s Confirmation
shall not give Customer
the right not to accept the Goods. Customer shall be obliged
to pay the rate
specified in Seller’s Confirmation for the quantity of
Goods delivered. |
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| 6 |
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CANCELLATION |
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| 6.1 |
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Customer’s wrongful non-acceptance or rejection of Goods
or cancellation or
repudiation of Seller’s Confirmation shall entitle Seller
to recover, in addition to any
other damages caused by such action:
(i) in the case of Goods which reasonably cannot be resold by
Seller to a third
party, the price of such Goods; or
(ii) in the case of Goods which can be resold by Seller or where
an action for
the price is not otherwise permitted by law, damages equal to
fifty percent
(50%) of the price for the Goods as liquidated damages. |
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| 7. |
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EXAMINATION AND CONFORMITY TO SPECIFICATIONS |
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| 7.1 |
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On delivery and during the handling, use, processing, transportation,
storage and
sale of the Goods (the “Use”), Customer shall examine
the Goods and satisfy itself
that the Goods delivered meet all contractual requirements. |
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| 7.2 |
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Complaints about the Goods shall be made in writing and must
reach Seller not
later than seven (7) days from the date of delivery in respect
of any defect, default
or shortage which would be apparent from a reasonable inspection
on delivery, and
seven (7) days from the date on which any other claim was or
ought to have been
apparent, but in no event later than six (6) months from the
date of delivery of the
Goods. Use or processing of the Goods shall be deemed to be
an unconditional
acceptance of the Goods and a waiver of all claims in respect
of the Goods. |
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| 7.3 |
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A determination of whether or not delivered Goods conform
to the agreed
specifications for the Goods as stated in Seller’s Confirmation
or, in the absence of
agreed specifications, to the most recent specifications held
by Seller at the time of
delivery of the Goods (the “Specifications”), shall
be done solely by analysing the
samples or records retained by Seller and taken from the batches
or production
runs in which the Goods were produced in accordance with the
methods of analysis
used by Seller. Goods that Seller consents or directs in writing
to be returned shall
be returned to Seller at the risk of Customer, to the destination
directed by Seller. |
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| 7.4 |
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Defects in parts of the Goods stated in Seller’s Confirmation
do not entitle Customer
to reject the entire delivery of the Goods. Complaints, if any,
do not affect
Customer’s obligation to pay as defined in paragraph 4.
Upon receipt of a notice of
defect, Seller is entitled to suspend all further deliveries
until the complaints are
established to be unfounded and/or refuted or until the defect
has been totally
cured. |
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| 8. |
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TRANSFER OF RISK AND PROPERTY |
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| 8.1 |
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The risk of the Goods shall pass to Customer on delivery. |
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| 8.2 |
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Goods for which delivery is suspended pending payment by Customer
, as well as
Goods of which delivery is wrongfully rejected or not accepted
by Customer, shall
be held and stored by Seller at the risk and expense of Customer. |
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| 8.3 |
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The ownership of the Goods shall not pass to Customer and
full legal and beneficial
ownership of the Goods shall remain with Seller unless and until
Seller has received
payment in full for the Goods, including all secondary costs
such as interest,
charges, expenses etcetera. |
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| 8.4 |
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In the event of termination on the basis of paragraph 16 of
these Conditions, Seller
shall, without prejudice to any other rights of Seller, be entitled
to require immediate
re-delivery of the Goods for which it may invoke a retention
of title. |
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| 8.5 |
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As long as title to the Goods remains with Seller pursuant
to this paragraph 8,
Customer is entitled to use the Goods solely to the extent required
in its ordinary
course of business, and, to the extent possible, shall:
(i) keep the Goods separate and in a clearly identifiable manner;
(ii) notify Seller immediately of any claims by third parties
which may affect the
Goods; and
(iii) adequately insure the Goods. |
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| 9. |
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LIMITED WARRANTY |
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| 9.1 |
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Seller solely warrants that on the date of delivery the Goods
shall conform to the
Specifications. If and to the extent Goods fail to meet such
warranty, as shall be
determined in accordance with the provisions of paragraph 7
of these Conditions,
Seller may at its own option within a reasonable time either
repair or replace the
Goods at no charge to Customer, or issue a credit for any such
Goods in the
amount of the original invoice price. Accordingly, Seller’s
obligation shall be limited
solely to repair or replacement of the Goods or for credit of
the Goods. |
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| 9.2 |
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However, Seller’s obligation to repair, replace, or
credit shall be contingent upon
receipt by Seller of timely notice of any alleged non-conformance
of Goods and, if
applicable, the return of the Goods, in accordance with paragraph
7 of these
Conditions. The foregoing warranty is exclusive and in lieu
of all other warranties,
representations, conditions or other terms, express, implied,
statutory, contractually
or otherwise, including, without limitation, any warranty of
merchantability, suitability
or fitness for any purpose, or absence of infringement of any
claim in any
intellectual property right covering the Goods. |
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| 10. |
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LIMITATION OF LIABILITY |
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| 10.1 |
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Under no circumstances shall Seller be liable to Customer
or any other person for
any kind of special, incidental, indirect, consequential or
punitive damage or loss,
cost or expense, including without limitation, damage based
upon lost goodwill, lost
sales or profits, work stoppage, production failure, impairment
of other goods or
otherwise, and whether arising out of or in connection with
breach of warranty,
breach of contract, misrepresentation, negligence or otherwise.
Notwithstanding
anything herein contained to the contrary, the liability of
Seller for any and all claims
for direct damages arising out of or in connection with the
Goods and the Use
thereof shall under no circumstances exceed the sum of Customer’s
payments for
the Goods that are the subject of the claim. |
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| 11. |
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FORCE MAJEURE |
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| 11.1 |
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Neither party shall be liable in any way for any damage, loss,
cost or expense
arising out of or in connection with any delay, restriction,
interference or failure in
performing any obligation towards the other party caused by
any circumstance
beyond its reasonable control, including, without limitation,
acts of God, laws,
statutes, ordinances, regulations, legislative measures, acts
of governments or
other administrative measures, orders or decrees of any court,
earthquake, flood,
fire, explosion, war, terrorism, riot, sabotage, accident, epidemic,
strike, lockout,
slowdown, labour disturbances, difficulty in obtaining necessary
labour or raw
materials, lack of or failure of transportation, breakdown of
plant or essential
machinery, emergency repair or maintenance, breakdown or shortage
of utilities,
delay in delivery or defects in goods supplied by suppliers
or subcontractors (“Force
Majeure”). |
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| 11.2 |
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Upon the occurrence of any event of Force Majeure, the party
suffering thereby
shall promptly inform the other party by written notice thereof
specifying the cause
of the event and how it will affect its performance of its obligations
under Seller's
Confirmation. In the event of any delay, the obligation to deliver
shall be suspended
for a period equal to the time loss by reason of Force Majeure.
However, should a
Force Majeure event continue or be expected to continue for
a period extending to
more than two (2) months after the agreed delivery date, either
Party is entitled to
cancel the affected part of Seller’s Confirmation without
any liability to the other
Party. |
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| 12 |
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MODIFICATIONS AND INFORMATION, INDEMNITY |
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| 12.1 |
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Unless the Specifications have been agreed to be firm for
a certain period or
quantity of Goods, Seller reserves the right to change or modify
the Specifications,
construction and/or manufacture of Goods and to substitute materials
used in the
production and/or manufacture of Goods from time to time upon
written notice.
Customer acknowledges that data in Seller’s catalogues,
specification sheets and
other descriptive publications distributed or published on its
websites by Seller, may
accordingly be varied from time to time without notice. Any
statement,
representation, recommendation, advice, sample or other information
of Seller in
relation to the Specifications, the Goods and the Use thereof
shall be furnished for
the accommodation of Customer only. |
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| 12.2 |
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Customer must utilise and solely rely on its own expertise,
know-how and
judgement in relation to the Goods and Customer’s Use
thereof and in Customer’s
application of any information obtained from the part of Seller
for the purposes
intended by Customer. Consultation provided by Seller shall
not give rise to any
additional obligations. Details and information provided with
regard to the suitability
and Use of the Goods shall not be binding and Seller does not
assume any liability
based on such consultations. Customer shall indemnify and hold
Seller harmless
from and against any and all damage, losses, costs, expenses,
claims, demands
and liabilities arising out of or in connection with the Goods,
Customer’s Use thereof
and/or Customer’s use or application of any information
disclosed or provided by or
on behalf of Seller. |
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| 13. |
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COMPLIANCE WITH LAWS AND STANDARDS |
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| 13.1 |
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Seller makes no promise or representation that the Goods shall
conform to any law,
statute ordinance, regulation, code or standard (“Laws
and Standards”), unless
expressly stated in Seller’s Confirmation or in the Specifications.
Customer
acknowledges that the Use of the Goods may be subject to requirements
or
limitations under Laws and Standards. Customer shall be exclusively
responsible
for (i) ensuring compliance with all Laws and Standards associated
with its intended Use of the Goods; and (ii) obtaining all necessary
approvals, permits or clearances
for such Use. |
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| 14 |
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INDEPENDENT CONTRACTORS |
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| 14.1 |
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Seller and Customer are independent contractors, and the relationship
created
hereby shall not be deemed to be that of principal or agent.
No sale to or obligation
of either party towards a third party shall in any way bind
the other party. |
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| 15. |
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NON-ASSIGNMENT |
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| 15.1 |
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either party may assign any of the rights or obligations under
Seller’s Confirmation
without the prior written consent of the other party, provided
however, that Seller
may assign such rights and obligations, wholly or partly, to
any of its parent
companies, subsidiaries or affiliates or to a third party acquiring
all or a substantial
part of Seller’s assets or business relating to the Goods. |
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| 16 |
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SUSPENSION AND TERMINATION |
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| 16.1 |
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If (a) Customer is in default of performance of its obligations
towards Seller, or (b) if
Seller has reasonable doubts with respect to Customer’s
performance of its
obligations to Seller and Customer fails to provide to Seller
adequate assurance
(such as by means of ongoing credit approval) of Customer’s
performance before
the date of scheduled delivery and in any case within thirty
(30) days of Seller’s
demand for such assurance; or if Customer becomes insolvent
or unable to pay its
debts as they mature, or goes into liquidation (otherwise than
for the purposes of a
reconstruction or amalgamation) or any bankruptcy proceeding
shall be instituted by
or against Customer or if a trustee or receiver or administrator
is appointed for all or
a substantial part of the assets of Customer or if Customer
enters into a deed of
arrangement or makes any assignment for the benefit of its creditors,
then, without
prejudice to any other rights of Seller, Seller may by notice
in writing forthwith
(i) demand re-delivery and take repossession of any delivered
Goods which
have not been paid for, for which purpose Customer hereby grants
an
irrevocable right and licence to Seller to enter upon all or
any of the
premises where the Goods are or may be located and all costs
relating to
the recovery of the Goods shall be for the account of Customer;
and/or
(ii) suspend its performance or terminate Seller’s Confirmation
for outstanding
delivery of Goods unless Customer makes such payment for Goods
on a
cash in advance basis or provides adequate assurance of such
payment for
Goods to Seller; without any intervention of courts being required
and
without liability for Seller of whatsoever kind arising out
of or in connection
with such suspension or termination. |
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| 16.2 |
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In any such event of (i) and/or (ii), all outstanding claims
of Seller shall become due
and payable instantly in proportion to the quantity of Goods
delivered to Customer
and not re-possessed by Seller. |
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| 17. |
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WAIVER |
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| 17.1 |
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Failure by Seller to enforce at any time any provision of
these Conditions shall not
be construed as a waiver of Seller’s right to act or to
enforce any such term or
condition and Seller’s rights shall not be affected by
any delay, failure or omission to
enforce any such provision. No waiver by Seller of any breach
of Customer’s
obligations shall constitute a waiver of any other prior or
subsequent breach. |
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| 18. |
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SEVERABILITY AND CONVERSION |
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| 18.1 |
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In the event that any provision of these Conditions shall
be held to be invalid or
unenforceable, the same shall not affect in any respect whatsoever,
the validity or
enforceability of the remaining provisions between the parties
and shall be severed
therefrom. The pertaining provisions held to be invalid or unenforceable
shall be
reformed to provisions satisfying the legal and economic intent
of the original
provisions to the maximum extent permitted by law. |
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| 19. |
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LIMITATION OF ACTION |
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| 19.1 |
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No action by Customer shall be brought unless Customer first
provides written
notice to Seller of any claim alleged to exist against Seller
within thirty (30) days
after the event complained of first becomes known to Customer
and an action is
commenced by Customer within twelve (12) months after such notice. |
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| 20. |
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GOVERNING LAW AND JURISDICTION |
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| 20.1 |
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The parties’ rights and obligations arising out of or
in connection with Seller’s
Confirmation and/or these Conditions shall be governed, construed,
interpreted and
enforced according to the laws of The Netherlands, excluding
principles of conflict
of laws. The applicability of the United Nations Convention
on Contracts for the
International Sale of Goods (CISG) is excluded. |
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| 20.2 |
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The parties agree that any suits, actions or proceedings that
may be instituted by
any party shall be initiated exclusively before the competent
courts of The
Netherlands without prejudice to Seller’s right to submit
the relevant case to the
court which would have jurisdiction if this provision has not
been incorporated in the
Conditions, and the parties do hereby consent to the jurisdiction
of those courts and
waive any objection which they may have, now or hereafter, to
venue of those suits,
actions or proceedings. |
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| 21 |
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SURVIVAL OF RIGHTS |
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| 21.1 |
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The parties’ rights and obligations shall be binding
upon and inure to the benefit of
the parties and their respective successors, permitted assigns,
directors, officers,
employees, agents and legal representatives. Termination of
one or more of the
rights and obligations of the parties, for whatsoever reason,
shall not affect the
provisions of these Conditions which are intended to continue
to have effect after
such termination. |
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| 22 |
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HEADINGS |
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| 22.1 |
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The headings contained in these Conditions are included for
mere convenience of
reference and shall not affect their construction or interpretation. |
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| 23 |
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INTELLECTUAL PROPERTY |
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| 23.1 |
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Seller has not verified the possible existence of third party
intellectual property
rights which might be infringed as a consequence of the sale
and/delivery of the
Goods and cannot be held liable for any loss or damages in that
respect. |
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| 23.2 |
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The sale of Goods shall not, by implication or otherwise,
convey any license under
any intellectual property right relating to the compositions
and/or applications of the
Goods, and Customer expressly assumes all risks of any intellectual
property
infringement by reason of its importation, Use of the Goods,
whether singly or in
combination with other materials or in any processing operation. |
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