GENERAL CONDITIONS OF SALE OF ZEMIC EUROPE B.V. AT ETTEN-LEUR THE NETHERLANDS
Filed with the Chamber of Commerce and Industry at Breda,
The Netherlands, under number 32112172
1. General
1.1. These General Conditions of Sale (the “Conditions”) apply to all quotations and/or sales agreements concluded by Zemic Europe B.V. or any of its affiliates in The Netherlands (collectively: “ZEMIC EUROPE”) as seller.
1.2. ZEMIC EUROPE does not accept any “general” or “standard” terms provided by Purchaser, unless explicitly agreed upon in writing between Purchaser and ZEMIC EUROPE and explicitly repels appropriate General Conditions from Purchaser, in whatever name, in the broadest sense of the word.
2. Confidentiality
All information such as ZEMIC EUROPE’s quotations, drawings, etc. are confidential and have been prepared for, and submitted to Purchaser’s use, solely in consideration of the purchase of the equipment described. Transfer of all or any part of this information to others, or use by Purchaser for other purposes is unauthorised without ZEMIC EUROPE written consent.
3. Quotations
All quotations made by ZEMIC EUROPE may be withdrawn at any time and will expire in any event 60 days from the date the quotation was made.
4. Acceptance
The written acceptance by ZEMIC EUROPE of Purchaser’s order constitutes the agreement between ZEMIC EUROPE and Purchaser. ZEMIC EUROPE acceptance is expressly limited to the terms as set forth herein and no oral or written statement shall modify or add to the agreement between ZEMIC EUROPE and Purchaser. The Conditions shall be part of any subsequent contract between ZEMIC EUROPE and Purchaser unless ZEMIC EUROPE otherwise specifically agreed to modifications expressly set forth in writing and signed by ZEMIC EUROPE authorized representative.
5. Prices and Sales
5.1. Pricelists are subject to change without notice.
5.2. All prices quoted by ZEMIC EUROPE relate to the product as well as standard packaging. All prices quoted are net and excluding of any sales, use or excise tax imposed with respect to the sale. Any such tax is for Purchaser’s account and may be included with the invoices.
5.3. ZEMIC EUROPE is entitled to increase any quoted or agreed price in the event import or other duties or the cost of transport have increased since the acceptance of the order or if the effect of any governmental rule, regulation or decision increases the price of ZEMIC EUROPE’s product. Purchaser shall not be entitled to cancel an order accepted by ZEMIC EUROPE, if any such price increase shall occur.
5.4. All shipments EXW (Ex-Works) Breda, The Netherlands, unless otherwise specified.
5.5. All prices quoted are based on an exchange rate between the quoted currency and the USD at the date stated on the quotation. Prices quoted in Euro’s are firm. Should at the date of shipment the exchange rate vary by more than 3%, ZEMIC EUROPE or the Purchaser reserve the right to adjust the price, whichever is applicable.
Payment
5.6. Purchaser shall pay the price in accordance with ZEMIC EUROPE’s order acceptance and increased with the costs that are for Purchaser’s account, not later than thirty (30) days after date of invoice, unless otherwise agreed. Payments must be made by transfer to ZEMIC EUROPE’s bank account.
5.7. Payment is deemed to have been made as soon as the amount has been credited to ZEMIC EUROPE’s bank account. All costs related to payment are at Purchaser’s expense.
5.8. All payments shall be made in the currency agreed upon.
5.9. Purchaser is not entitled to compensate any debt to ZEMIC EUROPE under the agreement entered into with Purchaser, with any debt of ZEMIC EUROPE to the Purchaser.
5.10. Purchaser is in default if any of the payments to ZEMIC EUROPE are past due, without ZEMIC EUROPE’s obligation in notifying Purchaser. ZEMIC EUROPE is then entitled to suspend its obligations resulting from the agreement with Purchaser. Purchaser is obliged to pay interest at a rate of 1% per month, per day past due. All costs connected with the recovery of the amount past due, including costs for legal assistance and all extra judicial costs, are for Purchaser’s account and fixed on 15%.
6. Delivery Period
6.1. All delivery periods specified by ZEMIC EUROPE are approximate. ZEMIC EUROPE shall not be liable for any delay in delivery caused by any labour dispute, embargo, war, damage to factory or governmental law or regulation, inability to obtain labour or material, acts of God or other cause beyond ZEMIC EUROPE’s reasonable control affecting ZEMIC EUROPE, its suppliers or shippers. In the event the agreement between ZEMIC EUROPE and Purchaser provides that ZEMIC EUROPE shall deliver its products in instalments, a delay in delivery of any of the products shall not entitle Purchaser to cancel the agreement or the delivery of the remaining products.
6.2. If delivery or partial delivery of the products is deferred at Purchaser’s request, payment of the entire purchase price for the products shall be due and payable after notice from ZEMIC EUROPE that the products are ready for shipment. The risk of loss shall pass to Purchaser upon receipt of notice from ZEMIC EUROPE that the products are ready. Reasonable storage costs shall then be paid by Purchaser.
6.3. The delivery date as stated by the ZEMIC EUROPE offer or quotation, is binding once ZEMIC EUROPE receives a purchase written order clarifying all technical details such as correct product designation, capacity and accuracy grade. Although ZEMIC EUROPE delivery dates are considered to be realistic and as such we have every confidence in meeting them, penalty clauses in event of late deliveries will not be accepted either in whole or in part.
7. Shipments
ZEMIC EUROPE’s responsibility ceases with the delivery of products in good order to transportation companies. Delivery is not guaranteed at or to the destination. Claims for shortages, damage or loss in transit must be made by Purchaser against the carrier. In the absence of definite shipping instructions ZEMIC EUROPE reserves the right to ship the products, upon completion, by any public carrier which we deem satisfactory.
8. Cancellation by Purchaser
No orders can be cancelled by Purchaser except with ZEMIC EUROPE’s written permission. If ZEMIC EUROPE consents to cancellation, then ZEMIC EUROPE (a) shall as soon as practicable cease work and the placing of all orders for materials in connection with the performance of Purchaser’s order, (b) shall so far as possible and as soon as practicable cancel all then existing orders for materials to be used in connection with Purchaser’s order and, (c) if the ordered material cannot be sold to other customers within a reasonable period of time, shall transfer to Purchaser’s title all completed and partially completed material called for under Purchaser’s order and not previously delivered. In consideration of ZEMIC EUROPE’s allowing cancellation of Purchaser’s order, Purchaser shall pay to ZEMIC EUROPE the following: (a) the purchase price for all goods completed when ZEMIC EUROPE shall have ceased work under Purchaser’s order, (b) all costs, expenditures and payment made or incurred by ZEMIC EUROPE in connection with the uncompleted portion of Purchaser’s order including expenditures made by ZEMIC EUROPE in settling or discharging that portion of its outstanding obligations or commitments which it had made with respect to the uncompleted portion of Purchaser’s order, and (c) profit on the uncompleted portion of Purchaser’s order to be computed as follows:
1. Estimate the profit which ZEMIC EUROPE would have realized on the uncompleted portion of Purchaser’s order if the order had been completed and labour and material costs prevailing at the date of cancellation had remained in effect.
2. Estimate the percentage of completion of the uncompleted portion of Purchaser’s order.
3. Multiply the anticipated profit determined under 1. by the percentage determined under 2. The result is the amount to be paid to ZEMIC EUROPE as a proportionate part of its profit as provided above.
9. Samples
Samples will be submitted by ZEMIC EUROPE, when requested for ZEMIC EUROPE’s standard product. Other than standard samples will be submitted in accordance with ZEMIC EUROPE’s quotation(s). Production and/or engineering costs will be absorbed by Purchaser. Any sample(s) will be invoiced to Purchaser, unless returned as authorized. Samples will be considered as warranted only if expressly provided for in writing.
10. Purchaser’s Material
If the order involves the use of material or parts supplied by Purchaser, the sales price will be subject to increase if material or parts furnished will not machine at speeds and feeds estimated by ZEMIC EUROPE, or are not suitable for the purpose intended. ZEMIC EUROPE will manufacture such parts as can be obtained from Purchaser’s furnished material and shall be responsible only for scrap in excess of normal operation scrap loss. Failure by Purchaser to furnish sufficient material to complete the ordered quantity will involve extra set-up and handling charges which shall be paid by Purchaser. Delivery schedules are predicated on material being furnished by Purchaser in accordance with the terms of this order.
11. Special Tooling
In the event ZEMIC EUROPE secures or manufactures special tools, dies or equipment for the particular work, these shall remain the exclusive property of ZEMIC EUROPE, notwithstanding that part or all of the costs thereof may be included as a part of the sales price or priced separately.
12. No Responsibility for Drawings etc. furnished by Purchaser
ZEMIC EUROPE is not responsible for any drawings, samples, models or gages furnished by Purchaser in connection with the order, in particular, it shall be under no responsibility to examine the suitability of drawings, samples, models or gages, unless the unsuitability is manifest. Notwithstanding the foregoing, ZEMIC EUROPE hereby discharges any responsibility for drawings, samples, models or gages furnished by Purchaser and which are uncalled for within thirty (30) days after completion of this order.
13. Specification Changes and Local Conditions Requirements
13.1. Any changes from original specifications on which a quotation or an accepted order is based, will not be accepted unless requested in writing and subject to the following condition: if such change increases the cost of any product, including actual component costs and expenses incurred in modifying a partially or completely manufactured item, that such additional expenses shall be added to the original agreed upon price.
13.2. ZEMIC EUROPE designs in accordance with generally recognized and accepted good practice. If local conditions, codes or interpretations of these practices require materials or labour other than those covered in ZEMIC EUROPE’s specifications, additions can be made in ZEMIC EUROPE’s price upon written request of Purchaser specifying such local conditions.
14. Limitation of Liability
14.1. ZEMIC EUROPE’S RESPONSIBILITY FOR ANY CLAIMS, DAMAGES, LOSSES OR LIABILITIES ARISING OUT OF OR RELATED TO ITS PERFORMANCE OF THIS CONTRACT OR THE GOODS COVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY REPAIR OR REPLACEMENT OF GOODS UNDER THE WARRANTY SHALL NOT EXCEED THE SALESPRICE OF THE PARTICULAR INDIVIDUAL PRODUCT WHICH IS THE SOURCE OF PURCHASER’S CLAIM. IN NO EVENT SHALL ZEMIC EUROPE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO LOSS OF USE OF PRODUCTION FACILITIES OR EQUIPMENT, LOSS OF PROFITS, PROPERTY DAMAGES, PERSONAL INJURIES OR LOST PRODUCTION, WHETHER SUFFERED BY PURCHASER OR ANY THIRD PARTY, IRRESPECTIVE OF WHETHER SUCH CLAIMS OR ACTIONS FOR DAMAGES ARE BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, UNLESS ANY OF THE FOREGOING IS CAUSED BY ZEMIC EUROPE, ITS LEGAL REPRESENTATIVES OR ITS AGENTS INTENTIONALLY OR BY GROSS NEGLIGENCE.
14.2. The price quoted by ZEMIC EUROPE and the agreement between ZEMIC EUROPE and Purchaser (specifically including the Conditions) are predicated on ZEMIC EUROPE not having any risk of consequential or special damages even if ZEMIC EUROPE may be aware of any special considerations or circumstances affecting Purchaser. When selling an item in which any of ZEMIC EUROPE’s products has been incorporated, Purchaser shall be under an obligation to have a similar agreement with its Purchaser with respect to any consequential or special damages. ZEMIC EUROPE shall have no liability under any circumstances for consequential or special damages, including without limitation, loss of profits or time or personal injury, however caused. The limitation on consequential damages set forth above is intended to apply to all aspects of the agreement entered into by ZEMIC EUROPE and Purchaser including without limitation ZEMIC EUROPE’s obligations under the Conditions.
14.3. If, in spite of paragraphs 14.1. and 14.2. above, ZEMIC EUROPE or any third party is liable towards Purchaser pursuant to provisions of mandatory law, ZEMIC EUROPE or the respective third party is only liable for direct damages and not for indirect damages, including trading losses and consequential damages, nor is ZEMIC EUROPE or the respective third party liable for damages in so far as such damages exceed the Price.
14.4. Purchaser holds ZEMIC EUROPE and any third party which ZEMIC EUROPE may use in the performance of its obligations under the agreement entered into with Purchaser and any affiliate of ZEMIC EUROPE (either inside or outside The Netherlands) harmless from all claims of third parties for damages, direct or indirect, inflicted on persons or goods by or in connection with the agreement entered into by ZEMIC EUROPE and Purchaser either by or in connection with the product sold or the use thereof.
15. Warranty
ZEMIC EUROPE warrants that at the time of delivery the goods sold hereunder shall be free from defects in materials and workmanship. In the case of defect, at ZEMIC EUROPE’s option, the goods will be repaired or replaced or credited in the amount of the sales price, unless the goods, returned to ZEMIC EUROPE’s production factory and after ZEMIC EUROPE’s subsequent examination, are not free from defects in materials and workmanship.
The remedies in this section shall be Purchaser’s exclusive remedies for breach of this warranty or other claims for defects in goods sold hereunder. The period of warranty shall be from registered date of shipment for a period of three (3) years on stainless steel hermetically welded load cells, two (2) years on other load cells, one (1) year on steel or stainless steel load cell accessories and/or mounts. The period of warranty for third party items will be the same as supplied by the original manufacturer.
16. Title of Retention
16.1. Title to the goods supplied by ZEMIC EUROPE shall be reserved to ZEMIC EUROPE until all of ZEMIC EUROPE’s or any other ZEMIC EUROPE Company’s claims against Purchaser arising out of whatever legal transaction (including any ancillary claims and any contingent liabilities ZEMIC EUROPE entered into in the interest of Purchaser), are satisfied. This shall apply also to such goods with respect to which urchaser has specifically designated payment in case of a current account, the retention of title shall secure the balance of such account.
16.2. The goods subject to retention of title as specified in paragraph 16.1. (hereinafter called the “Retained Goods”) shall be properly stored by Purchaser with the diligence of an orderly businessman, shall always be identifiable as ZEMIC EUROPE’s property and shall not be mixed with any goods so as to make such identification difficult or impossible. Purchaser shall safeguard ZEMIC EUROPE’s interest -and notify ZEMIC EUROPE immediately- if attachment procedures or other interfering measures are or are to be taken with respect to the Retained Goods.
17. Purchaser’s Order for Non-Standard ZEMIC EUROPE Product
17.1. ZEMIC EUROPE undertakes the development, manufacture and sale of the product on the best efforts basis subject to progress payments. All intellectual property rights including but not limited to engineering designs, manufacturing drawings and specifications for the product shall remain the exclusive property of ZEMIC EUROPE. ZEMIC EUROPE reserves the right to manufacture the product or similar product for its own account or for others, and to use, sell and market the product or similar product without restriction.
17.2. ZEMIC EUROPE does not warrant or represent that it will successfully develop and manufacture the non-standard product to satisfy the performance specifications set forth by Purchaser unless specifically agreed to in writing by ZEMIC EUROPE.
18. Partial invalidity
If any provision of the Conditions is or shall become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a suitable provision which comes as close as possible to the invalid provision from an economic point of view.
19. Termination
In each of the following events Purchaser is in default, without Purchaser being required to give any notice of default, and ZEMIC EUROPE is entitled to terminate the agreement entered into with Purchaser by an explicit notice in writing without judicial intervention:
a. in the event that Purchaser deceases or is dissolved;
b. in the event that Purchaser obtains a temporary suspension of payment;
c. in the event that the business of Purchaser is terminated or in the event Purchaser alienates its business in whole or for a considerable part;
d. in the event that Purchaser fails to perform any of its obligations under the agreement entered into between ZEMIC EUROPE and Purchaser timely and adequately.
20. Governing Law and Choice of Forum (last article)
20.1 The agreement entered into between ZEMIC EUROPE and Purchaser is governed by the law of The Netherlands. The applicability of the Uniform Law of the Formation of Contracts for the International Sale of Goods and the Uniform Law on the International Sale of Goods is excluded.
20.2. The competent court in Breda, The Netherlands, has exclusive jurisdiction with respect to all disputes in connection with offers made by ZEMIC EUROPE and in connection with the agreements entered into. ZEMIC EUROPE however, is entitled to bring such a dispute before another competent foreign court inside or outside The Netherlands.