General conditions applicable to the sale and delivery of products by Conrexx Technology B.V.
1.1 These conditions apply to all offers by and all orders to Conrexx Technology B. V., Keurmeesterstraat 18, 2984 BA Ridderkerk, The Netherlands, hereinafter referred to as “Conrexx Technology”, for the sale and delivery by Conrexx Technology of goods (hereinafter: Products), and to all agreements with Conrexx Technology with respect thereto.
1.2 The applicability of conditions of the Buyer, customer or other party (hereinafter: “Buyer”) of Conrexx Technology is hereby expressly excluded.
1.3 Provisions that deviate from these conditions can be invoked by the Buyer only if and to the extent that Conrexx Technology accepts these other provisions in writing.
1.4 The Buyer who has once contracted on the basis of these conditions accepts the applicability of these conditions to all future agreements between him and Conrexx Technology.
1.5 Delivery terms used in these conditions as well as in the agreement shall be interpreted and construed in accordance with the provisions in the most recent edition of the International Rules for the interpretation of trade terms of the International Chamber of Commerce at Paris (hereinafter: “Incoterms”).
1.6 If, for any reason whatsoever, any part of these conditions is invalid, the remainder of the conditions shall remain in force and the parties will, in mutual consultation, provide a regulation in substitution for the invalid stipulation, the purport of which shall be maintained to the maximum extent.
2. Offers, Orders and Agreements
2.1 All offers from Conrexx Technology are non-binding (“vrijblijvend”) unless agreed otherwise in writing.
2.2 All orders and acceptances of offers by the Buyer, including verbal orders and acceptances are irrevocable.
2.3 Conrexx Technology is only bound when it has accepted an order in writing or has begun implementation. Conrexx Technology is moreover only bound as accepted in writing. Verbal commitments or agreements by or with its personnel, representatives or intermediaries do not bind Conrexx Technology except and insofar as the management of Conrexx Technology confirms these in writing.
3.1 All prices contained in offers, price-lists, etc. of Conrexx Technology are non-binding (“vrijblijvend”).
Discounts granted by Conrexx Technology are given on a once only basis and shall not bind Conrexx Technology in any way in respect of an additional order or a subsequent agreement.
3.2 Unless expressly indicated by Conrexx Technology or agreed otherwise with Conrexx Technology, the prices set by or agreed to with Conrexx Technology for Products shall be net prices, therefore, among other things, exclusive of V.A.T., and shall apply only to delivery “ex works”. They shall unless - agreed otherwise - not include costs of packing, loading, dispatch, transport, unloading, insurance, installation, assembly and/or other services.
3.3 If Conrexx Technology undertakes to carry out the packing, loading, dispatch, transport, unloading, insurance, installation, assembly and/or other services and no price has been expressly agreed in that respect, Conrexx Technology shall be entitled to charge the Buyer the actual costs and/or the rates normally used by Conrexx Technology.
3.4 Prices set by or agreed to with Conrexx Technology are based on, among others, the cost of raw materials, components, transport, and wages and, where applicable, delivery costs applicable at the date of the conclusion of the agreement. If the cost price increases between such date and the date upon which the Products are delivered, Conrexx Technology is entitled to charge the Buyer a corresponding price increase even if the cost increase was foreseeable or foreseen at the time of concluding the agreement.
4. Drawings, quotes, documents
4.1 All information recorded in catalogues, brochures, price lists and the like shall only serve as orientation material and shall only be binding for Conrexx Technology if and insofar as explicitly agreed in writing.
4.2 All drawings, designs, models, etc. which are supplied in connection with the Products and the intellectual and industrial property rights with respect thereto shall remain the exclusive property of Conrexx Technology which company shall also be regarded as the maker and designer. Save with the express permission of Conrexx Technology, the Buyer is not allowed to provide documents and information from Conrexx Technology to third parties or to inform third parties of the contents thereof.
5. Materials, weight and measuring
5.1 Conrexx Technology’s recommendations, calculations, information, specifications and data regarding weight, quantity, measurements, quality, capacities, results and/or expected performance of the Products delivered shall only be binding for Conrexx Technology if and insofar as explicitly agreed in writing.
5.2 In respect of agreed weight, quantity, measurement, quality, capacities, results and/or expected performance of the Products delivered - whether it be any separate party of a consignment sold or the consignment as a whole - the tolerances applicable between Conrexx Technology and the third parties from whom it orders Products or parts of Products and those being customary in the business shall apply.
6.1 Delivery is “ex works, Rotterdam, the Netherlands” unless otherwise agreed. If Conrexx Technology arranges for the transportation of the Products, such transportation will always be for the risk of the Buyer.
6.2 Dates of delivery agreed with Conrexx Technology are estimates only. Failure to deliver on an agreed date does not entitle the Buyer to any damages, or to non-fulfillment by him of any of his own obligations arising from the agreement.
6.3 Dates of delivery can only be agreed after the conclusion of the agreement, and after Conrexx Technology has received all items, documents (including licenses and exemptions) and data which are necessary for carrying out the agreement and/or which are to be provided by the Buyer, and after any agreed advance payment has been received by Conrexx Technology, or any agreed security for payment has been put at its disposal. If on the day of the conclusion of the agreement the Buyer is in arrears with any payment in respect of any other agreement with Conrexx Technology, the date for delivery can only be agreed after Conrexx Technology has received all that is owed to it in respect of such agreement.
6.4 Agreed dates of delivery will be adjourned for the amount of time that the implementation of the agreement is delayed by force majeure. Agreed dates of delivery will also be adjourned for the amount of time that the Buyer is later in the fulfillment of any obligation than is agreed to or could reasonably be expected by Conrexx Technology.
6.5 Conrexx Technology is entitled to carry out the agreement according to its own judgment, whether or not by bringing in third parties and whether or not in stages.
7. Risk and transfer of title
7.1 The risk in the Products sold by Conrexx Technology rests with the Buyer as from the moment that the Products are delivered in accordance with Article 6.1.
7.2 All Products sold and delivered by Conrexx Technology remain the property of Conrexx Technology until such time as the buyer has paid in full all that is owed to Conrexx Technology in connection with the underlying agreement and/or earlier or later agreements of the same nature, including damages, costs and interest. The Buyer has no right of retention with respect to these Products.
7.3 The industrial or intellectual property rights to or in connection with the Products delivered shall remain with Conrexx Technology or with third party title-owners and shall never be transferred to the Buyer.
8. Force Majeure
8.1 Conrexx Technology is entitled to invoke force majeure if the implementation of the agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably out of its control, including natural disasters, fire, epidemics, war, mobilization, revolution, site or building blockades, strikes, specific work interruptions or work-to-rule slowdowns and lockout, transport interruptions, shortage of raw materials or energy, delay in the provision to Conrexx Technology of Products or services ordered from third parties, accidents and interruptions of business operations.
8.2 In the event of force majeure on the part of Conrexx Technology, its obligations are suspended. If the force majeure lasts longer than 90 days, Conrexx Technology and the Buyer are both authorized to rescind the non-feasible parts of the agreement by a written declaration, without prejudice to the provisions of article 13.2.
9. Acceptance and inspection
9.1 The Buyer is obligated to take immediate receipt of the Products delivered. All costs of Conrexx Technology associated with a failure to take receipt of the Products by the Buyer are for the account of the Buyer, costs of storage and transport included.
9.2 The Buyer is obligated to inspect the quantity of the Products delivered within a reasonable time from the date of delivery. Such a reasonable time shall be no longer than the period quoted in article 10.1. If the Buyer fails to so inspect, the quantity of the Products delivered shall be deemed to be approved. The Buyer shall not have the right to reject delivery of Products with a quantity deviating less than 5% from the quantity ordered.
9.3 The Buyer is obligated to inspect the quality of the Products within reasonable time from the date of receipt. Such reasonable time shall be no longer than the period quoted in article 10.3. If the Buyer fails to so inspect, the Products shall be deemed to be approved.
10. Shortages guarantee and claims
10.1 Claims in respect of shortages (quantity) must be notified to Conrexx Technology in writing within 5 working days from receipt of the Products delivered, failing which the Buyer’s rights in this respect are deemed to have been waived. In the case of justified complaint made in a timely fashion Conrexx Technology shall, at its option, either arrange for an additional delivery or credit the Buyer in proportion to the extent of the shortage. With respect to shortages, Conrexx Technology shall have no further liability than the above obligations.
10.2 Conrexx Technology guarantees the good quality of the Products in conformity with the contract specifications. In case of a justified claim, submitted in a timely fashion, Conrexx Technology will at its own option either repair or redeliver at no cost or credit the Buyer as far as is reasonable in whole or in part for the invoice value of the Products in question. In any event, crediting the Buyer for the invoice value of the Products will be limited to 70% of the invoice value of the Products in question if same are returned to Conrexx Technology more than 30 days after the date that the claim arose.
10.3 In respect of immediately noticeable defects, the Buyer must submit a guarantee claim within 10 days from receipt of the Products, failing which the Buyer’s rights in this respect are deemed to have waived.
10.4 Guarantee claims in respect of other defects must be made within 10 days from the date of their discovery, failing which the Buyer’s rights with respect to those defects are deemed to have been waived.
10.5 All Products that are returned to Conrexx Technology for repairs pursuant to a guarantee claim of the Buyer must be submitted together with a statement in writing clearly describing the nature of the problems that have occurred and an RMA-number which number will be issued by Conrexx Technology at the request of the Buyer. Moreover, the Buyer must prepay all costs of returning the Products to Conrexx Technology. Conrexx Technology shall reimburse such costs in case of a justified claim submitted in a timely fashion.
10.6 No guarantee rights exist:
a. If directions given by Conrexx Technology with respect to, among other things, storage, location, testing, installation, assembly, inspection, maintenance and/or use, have not been precisely followed;
b. If the delivered Products have been used improperly or not in conformity with the agreed to or usual purpose or if the Products have suffered physical damage (e.g. damage to the so-called Circus Diagram; burn-outs of components) or if seals and/or stickers (among which barcode sticker) have been removed or damaged;
c. If without the permission of Conrexx Technology the Buyer or third parties not contracted by Conrexx Technology carried out work on the Products sold by Conrexx Technology;
d. If the Buyer has not fulfilled any of its obligations towards Conrexx Technology arising from the underlying agreement, or has not fulfilled them adequately or on time;
e. With regard to Products in respect of which guarantee obligations of Conrexx Technology have explicitly been excluded;
f. With respect to defects discovered later than 1 year from the date of delivery
10.7 In respect of Products or parts of Products, which Conrexx Technology received from third parties, the guarantee obligations granted by Conrexx Technology to the Buyer will never exceed in nature nor in duration the guarantee obligations granted by those third parties to Conrexx Technology. Conrexx Technology shall in that case be discharged from the obligations under the guarantee once it has assigned its rights of claim against the third party to the Buyer.
10.8 Repairs to Products in respect of which no guarantee obligations of Conrexx Technology exist shall take place subject to a separate price to be agreed between Conrexx Technology and the Buyer.
11. Liability and indemnification
11.1 Conrexx Technology’s liability under the agreement with the Buyer is limited to the fulfillment of the guarantee obligations described in the previous article.
11.2 Conrexx Technology is, therefore, never obligated to pay damages of any nature. An exception exists only if and insofar as the damage is inflicted intentionally or by gross negligence of Conrexx Technology or its own employees. Conrexx Technology’s liability for loss of profits, consequential or indirect damage is, however, at all times excluded, except in the case of intention on the part of the management of Conrexx Technology itself.
11.3 In all cases which Conrexx Technology is obligated to pay damages, these will never be higher than, at its option, either the invoice value of the Products sold whereby or in connection with which the damage caused, or, if the damage is covered by an insurance policy of Conrexx Technology, the amount that will actually be paid by Conrexx Technology’s liability insurer with respect thereto.
11.4 Any claim towards Conrexx Technology, except those recognized by Conrexx Technology, lapses after a period of one year from the time the claim arose.
11.5 Conrexx Technology’s employees or independent contractors brought in by Conrexx Technology for the implementation of the agreement can, towards the Buyer, invoke all means of defense afforded by the agreement as if they themselves were party to that agreement.
11.6 The Buyer will hold harmless and indemnify Conrexx Technology, its employees and independent contractors brought in by it for the implementation of the agreement for each claim by third parties in connection with the implementation by Conrexx Technology of the agreement, insofar as those claims are greater than or different from those to which the Buyer is entitled from Conrexx Technology.
12. Payment and security
12.1 Payment without deductions (bank fees, etc.) and in the currency as mentioned in the invoice must take place within 21 days from the date of the invoice unless agreed otherwise. Unless expressly agreed otherwise payment shall be made by wire (no drafts, no cheques and the like) into the bank account of Conrexx Technology as mentioned in the invoice. Date of payment shall be considered the date that the amounts due have been received in the bank account of Conrexx Technology. Conrexx Technology has however at all times the right to claim full or partial payment in advance and/or to obtain other security for payment.
12.2 The Buyer relinquishes any right to set off amounts charged by and between parties. Guarantee claims do not suspend the payment obligations of the Buyer.
12.3 If the Buyer does not pay any amount he owes pursuant to the foregoing, he is in default without notice. As soon as the Buyer is in default on any payment, all Conrexx Technology’s remaining claims on the Buyer are due, and the Buyer is immediately in default without notice with respect to those claims. As from the day on which the Buyer is in default, he owes to Conrexx Technology late interest of 1˝% per month or part of a month during which the default continues.
13. Suspension and rescission
13.1 If the Buyer does not fulfil one or more of his obligations, does not fulfil them on the time or adequately, is declared bankrupt, requests (temporary) moratorium, or proceeds with the liquidation of his business, as well as when his assets are attached in whole or in part, Conrexx Technology has the right to suspend the implementation of the agreement or to rescind the agreement in whole or in part, without prior notice of default, by written declaration, at its option and always reserving any rights to which it is entitled with respect to compensation for all costs, damage and interest. In these cases all claims of Conrexx Technology on the Buyer are immediately and totally due.
13.2 The Buyer is authorized to rescind the agreement only in the case referred to in article 8.2 of these conditions, and, in the event, only after payment to Conrexx Technology of all amounts owed to Conrexx Technology at that time, whether or not due.
14. Disputes and Applicable law
14.1 All disputes existing between parties shall be heard exclusively by the Rotterdam District Court, unless the dispute is subject to the competence of a Dutch Cantonal Court (Kantongerecht) or unless Conrexx Technology prefers another competent forum.
14.2 All relations between Conrexx Technology and the Buyer are subject to Dutch law. The applicability of the Vienna Sales Convention is hereby expressly excluded.
14.3 All judicial and extra-judicial costs of Conrexx Technology incurred in connection with the collection of any claim on the Buyer are for the account of the Buyer. The extra-judicial costs are deemed to amount to at least 15% of the claim amount.