GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Filed with the Chamber of Commerce in Utrecht
- These general terms and conditions of sale and delivery shall apply to all offers, quotations and contracts made by Liqcreate (hereinafter ‘Seller’), in which Seller undertakes to deliver products to Buy
- The applicability of general conditions of the Buyer or any other general conditions is expressly rejected.
- Departures from these general terms and conditions will only be valid if expressly agreed to in writing by Seller.
- Insofar as these general terms and conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.
- The term ‘in writing’ shall have the following meaning: by letter or by e-mail.
2. Offers and conclusion of agreement
- All offers made by Seller shall be free of obligation.
- All information and data contained in product documentation and price lists, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included in the agreement.
- An agreement shall come into effect once Seller has confirmed the order in writing.
- In the event that agreement is reached to effect payment by means of a letter of credit, the agreement concerned shall only come into effect once Seller accepts the relevant irrevocable (confirmed) letter of credit in writing according to UCP 600. This letter of credit will be opened by a bank subject to the acceptance in advance by Seller and will be opened at the latest five (5) working days after Seller has sent the order confirmation.
- Any offer made or undertaking given by a representative of Seller shall only be binding so far as the latter confirms this in writing.
- Unless otherwise agreed in writing, prices shall be stated in Euro,exclusive of all taxes and VAT and/or any other taxes including sales tax, production tax or transportation tax, other than a tax on Seller’s profits, if applicable. Prices shall also be stated ex works ( Brummen, the Netherlands).
- Any price cited by Seller shall be based on the existing monetary conditions, labour costs, procurement prices, duties, taxes and other levies, subsidies and the like prevailing at the time the agreement concerned is conclude In the event that one or more of these cost price components increase after conclusion of the agreement but before the relevant products have been delivered, Seller shall be entitled to pass on any reasonable price increase to the Buyer.
- The terms and conditions of delivery shall be agreed per transaction. All terms and conditions of delivery shall apply in accordance with the lncoterms 2010.Delivery times shall be determined per transaction. Unless otherwise agreed by Seller, the products shall be deemed delivered, at Seller’s discretion, when they leave Seller’s plant or warehouse. The delivery time shall commence at such time as the relevant agreement is concluded, all official formalities have been completed and Seller has also accepted any security for payment which may have been agreed or have received any prepayment. Unless otherwise agreed, a specified delivery time shall under no circumstances be deemed to constitute a fatal date. Seller shall not be in default in respect of such delivery time until the Buyer notifies it in writing that it is in default, in doing so stipulates a reasonable period of time within which Seller has the opportunity to effect delivery, and the latter still fails to do so.
- Seller shall not be liable for any harm due to late delivery if and insofar as this is attributable to circumstances beyond Seller’s control and sphere of risk, which is deemed to include late or non- compliance on the part of its suppliers or the transport company it engages.
- The Buyer’s failure to comply with his duty to effect payment (or to do so on time), shall have the effect of suspending Seller ‘s duty to effect a delivery.
- Unless otherwise agreed in writing, the Buyer shall at his own risk and expense provide for all permits, licenses, dispensations and/or approvals required for the importation of the products.
- Seller reserves the right to effect a delivery in parts. Each partial delivery shall be deemed to represent a separate agreement. Seller shall be entitled to demand payment for each partial delivery before proceeding with any other.
- If Seller selects the carrier, Seller may not be held liable either upon this selection nor due to the performance of the carriage service. Buyer alone is responsible for protecting its rights in respect of the carrier, for addressing any claim for damages suffering during carriage directly to the carrier within the stipulated time periods with a copy sent to Seller.
- Buyer shall refund to Seller any carriage costs not included in the price of the Products / Goods. Whatever the method of carriage uses, Seller reserves the right to pass on to Buyer, automatically and ipso jure, even after the contract has been entered into, any fuel surcharge imposed upon him by carriage service providers or any carriage surcharge which can be attributed to Seller.
- Unless otherwise expressly agreed by Seller, carriage costs shall include the hire of road vehicles and rail equipment for a round trip and parking for two (2) hours (in the case of road tankers) and 48 hours (in the case of rail tankers) at Buyer’s plant. Seller shall be entitled to pass on any costs incurred in relation to any additional period of unavailability. Whatever the mode of collection and carriage used by Buyer, Buyer undertakes to comply with the relevant regulations and to use best collection and carriage practices in transporting the Products / Goods.
- Seller shall at all times have the right to demand full or partial payment in advance As to all other sales, terms of payment shall be determined per transaction. Payment shall be made by bank transfer. The non-payment of an invoice or draft shall constitute a serious breach of contract by Buyer and authorizes Seller to suspend other deliveries or to deem the contract as automatically terminated for breach by Buyer, without prejudice to any other right held by Seller.
- In the event that payment is not effected on time, the Buyer shall be deemed to be in default without the need for any notice of default or judicial intervention, and he shall be charged the statutory interest for business transactions over the amount due per month or part of one, as well as all of the expenses involved in collecting his debt, both judicial and extrajudicia The extrajudicial costs owed will never be less than 15% of the sum to be collected subject to a minimum of € 200,-.
- Furthermore, subject to any other rights Seller may have pursuant to the law or the agreement, in the absence of timely payment it shall be entitled either to suspend further delivery or to terminate all or part of the relevant agreement without the need for a notice of default or judicial intervention, such as its own discretion and subject to Seller’s right to seek compensation for any harm it has suffered.
- At any rate, the entire purchase price shall fall due with immediate effect in the event that the Buyer fails to effect timely payment or if he goes bankrupt, is granted a suspension of payments, is placed in the care of a guardian, his possessions are attached, he dies insofar as he is a natural person, or in the event that the Buyer’s business is liquidated or dissolved.
- Upon or after entering into the agreement and before its implementation, Seller will be entitled to demand a guarantee from the Buyer that both the payment obligations and any other obligations arising from this agreement will be fulfilled. Refusal by the Buyer to provide the required security gives Seller the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the contract wholly or partially, without prejudice to his right to compensation for any damages suffered by him.
6. Retention of title
- Where delivery occurs before payment of the entire amount owed pursuant to the agreement, the products supplied shall remain the property of Seller until all that is owed for the supply of those products, including any collection costs and interest, as well as any amount payable due to the Buyer’s failure to comply with his obligations pursuant to this agreement or any other, is paid in
- Until title to the products passes to the Buyer, he shall not be entitled to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. Nevertheless, the Buyer shall be entitled to sell these products in the normal conduct of his business. The Buyer shall at all times help Seller exercise its right of ownership. As long as retention of title applies, the Buyer shall have a duty to grant Seller access to his buildings and premises.
- When first so requested by Seller, the Buyer shall be obliged to pledge to Seller any accounts receivable he acquires in respect of products supplied by Seller which are subject to retention of title and have been sold to his Buyers.
- Where packaging has become the property of Buyer, he alone is responsible for any consequences associated with the disposal or reuse of this packaging, and he shall dispose of and/or reuse it in accordance with the applicable regulations. If packaging is reused, Buyer undertakes to remove Seller’s name from the packaging. If packaging will be supplied by Buyer, Buyer alone is responsible for the choice and quality of the packaging to be used for the Products and undertakes to supply packaging that complies with the regulations in force and the requirements of Seller.
- The Buyer is obliged to check the products upon delivery for any visible and/or immediately observable defects. If the Buyer fails to report defects within eight working days after the date of delivery, the Buyer will be considered to have approved the products supplied and complaints will no longer be considered. Defects which can only be observed at a later stage, shall be reported to Seller immediately after discovery but not later than five months after the date of delivery.
- Claims regard of number, measure or weight must be submitted together with copies of the invoices, the freight- and delivery documents. Other claims must be accompanied by the respective product or a sample.
- In case of damage to the products, the Buyer must make, immediately upon delivery, a remark on the transport-document undersigned by the driver in question of which a copy must be submitted as evidence.
- The product can only be returned for the account and risk of the Buyer and only after prior written permission has been obtained from Seller. Any transport for returned product will be organized by Seller unless otherwise agreed in writing. In case the Parties did not agreed transport for returned products and Buyer organized transport, Seller may exclude itself from the costs of transport.
- Unless otherwise agreed in writing, a complaint shall not suspend the Buyer’s payment obligation, not even if Seller approves a return.
- The complaint must contain a description of the defect and Seller must upon first request be given the opportunity to investigate the complaint.
- Seller warrants, to the exclusion of any other warranty and/or liability that, on the date of their delivery, the products to be free from any defects in material and workmanship. Buyer undertakes to inspect them upon delivery and before using them. Buyer must provide evidence of the existence of any defects or anomalies observed and give Seller every opportunity to observe such defects or anomalies. If Buyer has not inspected the quality of the Products within the aforementioned time periods or if, having done so, it uses or transfers the Products to third parties, Seller cannot be held liable for any damage of any nature which may result from their use by Buyer or third parties.
- If and insofar as any products or any part do not comply with the agreed quality requirements, Seller shall, acting at its own discretion, either replace or repair them or shall take back the defective products according to the extent of the faulty delivery and credit the Buyer for the purchase price, assuming that the Buyer has lodged a complaint in accordance with the provisions of Article 7 and Seller has acknowledged this complaint.
- Any parts that become available as a result of a replacement, shall remain/become Seller’s property. Under no circumstances shall Seller be liable to Buyer for any indirect and/or consequential damages suffered such as, in particular, loss of earnings, operating losses, lost profits or commercial opportunity, increase in overheads or reduction in expected savings, even if such losses or damages were foreseeable.
- No warranty shall apply in the event that:
- The product is not properly maintained or is not used in accordance with its operation manuals and instructions;
- The product has been subjected to faulty repair or modifications by the Buyer or third parties;
- The defect is caused by a circumstance primarily located or originating outside the product;
- The alleged defect is the result of normal wear and tear; or
- Buyer has continued to use the product after the discovery of the defect, unless prior written permission of Seller for continuous use has been obtained.
9. Return Policy
- Seller may accept returns or exchanges within 15 working days after shipment under the following conditions:
- Buyer should contact Seller within 15 working days after shipment. After this period, Seller will not accept returns or exchanges of that shipment.
- Before returning an item, contact Seller (email@example.com) to explain the reason of return or exchange. If the return or exchange of Buyer is accepted, an ‘return number’ is given which Buyer should attach to the packet with returned goods.
- The returned items must be unused, undamaged and in its original unopened packaging in the same condition as received. Seller does not accept returns or exchanges if the packaging is opened, used or damaged.
- After accepting the return or exchange, Buyer should arrange and pay for shipment of the goods to Seller. For an exchange, Buyer is also responsible for all costs of shipping for the new items.
- Seller will refund or exchange products after receiving and inspecting the returned goods.
- A restocking fee of 10% will be deducted from the refund fee.
- Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on the part of Seller, Buyer expressly understand and agree that in no event shall Seller be liable to Buyer for any indirect, special, incidental, consequential, punitive, or exemplary damages, including but not limited to damages resulting from lost profits or revenue, loss of goodwill, loss of use, business interruption or other intangible losses, even if Seller has been advised (or should have known) of the possibility of such damages.
- The aggregate liability of Seller to Buyer under any theory or ground shall at all times be confined to the net invoice value of the product concerned or to that part of the net invoice value to which a claim for compensation is directly or indirectly rela Total compensation for damage payable by Seller shall in no event exceed 100% of the total costs per event, whereby a series of related events will be considered as a single event.
- The Buyer shall indemnify Seller against any claim made by a third party in respect of which Seller is not liable under these terms and conditions.
- Seller makes no warranty that the website or its content will be error free or that the site will be uninterrupted, timely, secure, or that defects in the site will be corrected. The website and its contents (software, products, materials and information made available through or described on the site or accessed my means thereof) are provided ‘as is’ and ‘with all faults’ and the entire risk as to the quality and performance of the website is with Buyer. Seller is neither responsible nor liable for any viruses or other contamination of other computer system or other device uses to access the website as a result of the use of the website. Seller disclaims all warranties of any kind, whether express, implied or statutory, with respect to the website, including but not limited to any warranties of accuracy, merchantability, fitness for a particular purpose and non-infringement of intellectual property rights. Seller also disclaims all liability for acts, omissions and conduct of any third parties related to the use of the website. Buyer assume entire cost and all risk related to the use of the website, including but not limited to downloads or information obtained from the site. Seller makes no guaranty of confidentiality or privacy of any communication or information transmitted on the website or any site linked to the website. Seller will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on our equipment, transmitted over networks accessed by the website, or otherwise connected with the use of the website.
11. Force majeure
- In the event of war, civil unrest, rioting, strikes (total or partial), administrative decisions, changes in regulations, third-party action, act of state, fire, flood, other disasters and any other circumstances beyond Seller’s control irrespective of whether or not this occurs on its premises, those of its suppliers or the transport company it engages, or in the event of any change in circumstances of such a nature that Seller cannot reasonably be required to fulfill its obligations, Seller shall be entitled to withdraw its quotations, suspend deliveries or terminate any relevant agreement without judicial intervention, and it shall not be required to provide any compensation.
- In the event that Seller relies on force majeure, it shall immediately notify the Buyer thereof in writing, and also of the cessation thereof.
- Where Seller has already executed part of an agreement, the Buyer shall pay the purchase price for any products that have been delivered.
12. Suspension and termination
- In the event that the Buyer fails to comply with his obligations pursuant to an agreement into which he has entered, or fails to do so properly or on time, if there are grounds to fear that this will occur, or in the event that the Buyer applies for a suspension of payments, files for bankruptcy or liquidates his business, Seller shall be entitled to suspend or terminate the agreement concerned without the need to give notice of default or for judicial intervention, and it shall not have a duty to provide any form of compensation.
- Any claim on the part of Seller pertaining to a part of the agreement which has already been executed, or harm suffered as a result of its suspension or termination, which shall be deemed to include loss of profit, shall fall due with immediate effect.
13. Intellectual property rights
- Seller reserves all of its intellectual property rights in connection with the products which it supplies.
- The Buyer shall not be permitted to modify all or part of any product supplied, or to affix any other trademark to it, to use the relevant mark in any other way, or to register it in his own name.
- In offering or delivering products similar to Seller’s products, in price lists and promotion material and in any promotional activity, the Buyer shall refrain from any reference to Seller’s products, from the use of the word ‘loco’ or any equivalent thereof, and of any other reference to Seller’s products be it by using any trade mark or trade name belonging to Seller.
- When the Buyer processes raw materials delivered by Seller, he shall refrain on the goods processed, in printed matter or advertisements etc. from the use of any denomination given to those raw materials by Seller. Every statement that Buyers’ product contains any raw material or component delivered by Seller is subject to Seller’s prior written consent.
14. Governing law and forum
- These general terms and conditions and any agreements entered into by Seller shall be solely governed by and construed in accordance with the law of the Netherlands.
- In case of any dispute the competent court in Utrecht, the Netherlands, will be entitled to deal with the dispute unless Seller would elect to submit the dispute to competent courts elsew In the event a claim against Buyer is brought by a third party in a different court, Buyer herby waives his right to call Seller’s guarantee before such court so that in any event, this choice of forum clause shall prevail.
- The provisions of Clause 12 leave intact the right of Seller to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Amsterdam, the Netherlands. The arbitral procedure shall be conducted in the Dutch language or English language.