General terms and conditions of delivery and payment for Intemo B.V., a private limited liability company and Intemo Special Products B.V., a private limited liability company in Helmond.
Article 1: Definitions
Within the framework of these general terms and conditions, the following definitions shall be applicable:
A. Intemo is understood to mean both Intemo B.V., a private limited liability company entered into the Commercial Register of the Kamer van Koophandel (Chamber of Commerce) in Eindhoven under number 17087153 and Intemo Special Products B.V. entered Intemo the Commercial Register of the Kamer van Koophandel in Eindhoven under number 17102584;
C. Agreements are understood to mean all agreements concluded with Intemo that relate to products or services of Intemo;
D. Products are understood to mean products to be delivered by Intemo:
E. Services are understood to mean services to be carried out by Intemo;
F. Prices are understood to mean both prices of products and prices in connection with the carrying out of services.
Article 2: General
2.1 These general terms and conditions shall be applicable to agreements (offers, negotiations and agreements) in connection with products to be delivered by and services to be carried out by Intemo.
2.2 Agreements need not be concluded in writing nor must they be proved. In the event that the agreementhas been put down in writing or confirmed by Intemo, for instance by means of an order confirmation, then this writing shall be taken to be obligatory and complete proof between the parties, barring proof to the contrary. Intemo can never be bound by negotiations and/or oral arrangements of persons who do not have the authority to represent Intemo, unless these arrangements have been confirmed in writing by Intemo by persons authorized thereto.
2.3 Deviations from these terms and conditions of delivery shall only be accepted by Intemo in the event that and in so far as Intemo has confirmed these deviations in writing. Any other party, having once purchased from Intemo at the current terms and conditions of delivery, shall be considered to have accepted automatically the applicability of these terms and conditions of delivery with regard to any following orders or assignments given by said party either orally, by telephone, by e-mail or otherwise, irrespective of the fact whether such orders or assignments have been confirmed in writing.
Article 3: Formation of an agreement
3.1 Any offer made by Intemo by word of mouth or in writing shall always be non-obligatory. The offer shall even be non-obligatory in case the offer states a fixed term for acceptance unless Intemo explicitly states in the offer, in addition to mentioning a fixed term of acceptance, that such offer is irrevocable. In the event that such term is not mentioned in a written offer then Intemo may regard this offer as lapsed at the expiry of a period of 4 weeks after the date of the offer, without any further notification by Intemo being necessary.
3.2 A handwritten offer by Intemo sent by fax must be accepted forthwith otherwise it shall lapse unless the offer itself shows otherwise. The agreement shall not be concluded until its acceptance has reached Intemo within a period of time of 4 weeks, unless differently agreed upon in writing, and Intemo has confirmed the agreement in writing. Forwarding such acceptance within a period of 4 weeks shall not suffice.
3.3 Acceptance, whether or not in the form of an order confirmation from the side of the other party, including real additions, limitations or other changes, shall be considered to be a new offer and so to be a rejection of the original offer.
3.4 Real additions, limitations or other changes within the meaning of paragraph 3.3 shall be meant to understood additional or deviating conditions in connection with i.a. price, payment, quality, outward appearance and quantity of products, place and time of delivery, scope of liability of either party with regard to the other and the settlement of disputes.
3.5 In the event that the other party of Intemo refers to different general terms and conditions at the acceptance of an offer, then such reference shall not have any force and the current general terms and conditions of Intemo shall exclusively apply. In the event that the other party of Intemo refers to different general terms and conditions, thereby stating that the applicability of the terms and conditions of Intemo is explicitly rejected, then paragraph 3.3 shall be applicable; this shall be regarded to be a rejection of the offer and will then be a counter offer at the same time.
3.6 Errors and/or incorrect data when the other party confirms orders in writing shall be at the risk of this other party.
Article 4: Prices
4.1 Products delivered by Intemo shall be invoiced in conformity with the price, in Euro unless differently agreed upon in writing, confirmed by Intemo in the order confirmation. Intemo shall be authorized to adapt the price mentioned under paragraph 4.1 to its most recent price list or to price increases of cost price factors that have recently taken place in so far as these influence the sales price with more than 1%, on condition that the agreement does not show otherwise.
4.3 In the event that rendering services has also been agreed upon, Intemo shall be authorized to charge in addition to the price agreed upon, any costs in connection with demonstrably carried out additional work and/or delay through no fault of Intemo in the execution of the activities. Any costs in connection with special packaging shall be charged to the other party.
Article 5: Payment
5.1 Payment must be made within 30 days from the invoice date unless differently agreed upon in writing. In the event that the other party does not or not completely satisfy its payment obligations, then Intemo shall be entitled to suspend the delivery of products and/or the execution of services, or to reclaim such and not to surrender the results of previous activities to the other party. In case the other party has been in default with regard to the payment of one of the invoices, all other claims of Intemo upon the other party shall become forthwith exigible. In addition, Intemo shall then be entitled to dissolve forthwith all agreements (of delivery) concluded with the other party. The other party shall lose any and each right to demand delivery by Intemo in the event that Intemo dissolves the agreements (of delivery).
5.2 The sums stated on the invoices must be settled in one payment in their entirety. Incomplete payments or payments in installments need written consent of Intemo. In case the other party does not fulfill its payment obligations within the term of payment, then the other parity shall be in default by mere lapse of term of payment without any notice of default being required.
5.3 Orders with regard to projects shall all be considered individually and shall be invoiced individually and separately per order. The invoice referring to an individual order shall be exigible in its entirety after the term of payment has lapsed. Invoices referring to the underlying orders in the project cannot be settled otherwise than on the basis of the quality or the price agreed of the product.
5.4 All payments must me made in Euro unless differently agreed upon in writing. In case payment in different currency has been agreed upon, then translation shall be made on the basis of the current rate of the day of payment. Translation costs and any possible damage suffered by Intemo because of differences in rate shall be at the expense of the other party.
5.5 Any and all payments shall always and exclusively be intended and used for the payment of the oldest unsettled invoice. In the event that an invoice has not been paid within 8 days from the time limit mentioned in paragraph 5.1, the other party shall be due to pay 1.5% interest on the unsettled sum for each month or part of a month in excess of the term of payment, whereby part of a month shall be considered to be one full month.
5.6 In the event that the other party does not pay within 8 days from the time limit mentioned in paragraph 5.1, he shall be considered to be in default by operation of law, without any notice of default or any other action being required. As of that moment in time, the other parity shall be due to pay the statutory interest on the unsettled invoice amount notwithstanding the provisions in paragraph 5.5.
5.7 Intemo shall be entitled to require from the other party that it shall pay all costs caused by the latter's being in default. This will include judicial and extrajudicial costs.
5.8 In the event that the other party is in default regarding this obligation to pay, Intemo may ask for the assistance of a third party for the collection of the unsettled invoice. These extrajudicial collection costs shall be chargeable to the other party. These costs shall amount to 15% of the amount to be paid with a minimum of Euro 125 increased by turnover tax.
5.9 Intemo explicitly reserves the right to demand preliminary or partial payment by the other party before the execution of the agreement.
5.10 The other party shall never be allowed to invoke settlement or a right of suspension against Intemo.
5.11 The other party shall never be allowed to transfer or to pledge its rights arising from an agreement with Intemo to third parties, unless Intemo agrees explicitly and in writing.
Article 6: Furnishing of security
6.2 In case Intemo should suffer damage because of a delay in delivery resulting from this, then the other party shall be fully liable for such damage.
Article 7: Ownership rights of Intemo
7.1 Intemo shall retain the ownership in connection with all products delivered by Intemo to the other party until the purchase price of all these products has been settled in its entirety. In the event that Intemo carries out activities to be paid for by the other party on behalf of the other party within the framework of these agreements of sale, the retained ownership mentioned above shall also be in force until the other party has also paid in its entirety these claims of Intemo. The retained ownership shall also be in force with
7.2 The other party shall not be allowed to pledge or grant a third party any other right thereupon as long as the ownership of the delivered products has not passed unto this other party, except for the provisions of the fifth paragraph of this article.
7.3 With regard to delivered products which have become the property of the other party because of payment made and which are still in the possession of the other party, Intemo shall retain, now for then, the rights of pledge as referred to in article 3:237 BW Burgerlijk Wetboek (Netherlands Civil Code)) as additional security for claims, other than those mentioned in article 3:92 paragraph 2 BW, which Intemo might have on any basis whatsoever against the other party.
7.4 The other party shall be held to keep the products delivered under retention of title with the necessary accuracy as recognizable property of Intemo. The other party shall be obliged to insure the products for the duration of the retention of title against damage caused by fire, explosion and/or water as well as against theft and to hand these insurance policies over for inspection by Intemo at its request. All claims of the other party against the insurers of the products on the basis of the insurances mentioned shall be pledged to Intemo by the other party in the manner laid down in article 3:239 BW as soon as Intemo expresses its desire thereto, as an additional security of the claims of Intemo against the other party.
7.5 The other party shall be allowed to sell and transfer the products delivered under retention of title to third parties within the framework of business activities carried out in the normal manner. The other party shall be obliged to stipulate retention of tile on the basis of the provisions of this article when selling on credit.
7.6 All documents and data provided by Intemo shall remain the property of Intemo and may not be handed over to third parties for inspection unless written consent has been given by Intemo.
7.7 Auxiliary tools especially made by Intemo shall remain the property of Intemo also in case these have been invoiced separately. These special auxiliary tools shall be kept by Intemo for two months at most after the completion of an assignment, unless differently agreed upon.
7.8 Intemo shall retain all rights with regard to intellectual property in connection with the products that are used or have been used during the execution of the agreement. The other party shall be explicitly forbidden to directly or indirectly multiply, make public or exploit the products and the results of the activities of Intemo, thereby engaging third parties or not, and this in the broadest sense of the word.
7.9 Furthermore, the other party shall be obliged to inform Intemo forthwith of seizure or threatening seizure and of any other infringement by third parties of the ownership rights of Intemo. The other party shall inform such third parties of the ownership rights of Intemo in these cases.
7.10 In the event that the other party is in default of the observance of its obligations to pay, is in financial difficulties, is winding up its business, applies for a petition for suspension of payments, has been declared bankrupt, is put under administration or tutelage, Intemo shall be entitled to take back the products delivered under retention of title whether or not the products delivered have been processed or assembled. When products are taken back, the other party shall be credited for the original purchase price reduced by costs including costs of re-stocking that will be at any rate 30% of the original purchase price, unless differently agreed in writing.
Article 8: Delivery of Products
8.1 Intemo must deliver the products:
1. In the event that a date is laid down in the agreement or can be determined on the basis of it, before or on this date;
2. In the event that a period of time is laid down in the agreement or can be determined on the basis of it, on any point in time during this period of time, unless circumstances show that the other party must choose a more precise date;
3. In all other cases within an attainable period of time for Intemo "as soon as possible" after the conclusion of the agreement.
8.2 The other party shall not have the right to cancel or dissolve the agreement in the event that Intemo does not observe the time of delivery agreed unless Intemo has explicitly laid down in the agreement a time limit as regards delivery. If so, the provisions of article 12 below shall apply.
8.3 In the event that only a part of the products cannot be delivered within the agreed delivery time by Intemo, then Intemo shall be entitled to deliver the other part in time and furthermore Intemo shall be entitled to supplement any shortage as regards delivered quantity even after the delivery time agreed might be passed. The invoices referring to the part delivery must be settled within the agreed term of payment. Article 5 of these general terms and conditions shall be applicable.
8.4 Delivery shall take place by notifying the other party that the products are ready and at the disposal of the other party in Intemo's warehouse if no other place of delivery has been agreed. The products shall be at the risk of the other party as of the moment of delivery, or, if indicated so by Intemo, as of the moment that they have left Intemo's warehouse or from any other place indicated by Intemo. Agreements concluded by Intemo with third parties shall not alter this and shall be considered to be in the interest of and chargeable to the other party.
8.5 The other party must remove the products from the place and at the time indicated by Intemo. In the event that the other party fails to do so, then Intemo shall store the products at the risk of and chargeable to the other party. Intemo shall have a right of retention with regard to these goods until all storage costs have been paid to Intemo provided the ownership of these products has already been transferred to the other party.
8.6 Intemo shall be entitled to forward products cash on delivery to the other party without prior notification. In the event that the other party refuses to take possession of the products, then the delivery agreement with the other party shall be dissolved regarding this delivery at the time the refusal is made by the other party. Intemo shall then be entitled to reclaim costs made by them in this matter from the other party.
8.7 Intemo may invoke circumstances beyond their control as a result of any and each circumstance for which they cannot be blamed. This shall also apply to circumstances that are within the range of influence of Intemo or in that of their direct or indirect suppliers. Intemo may in particular invoke circumstances beyond their control in case raw materials, semi-finished products and/or finished products are not or not timely
8.8 Transportation/forwarding of products shall be carried out at the risk of and chargeable to the other party.
Article 9: Execution of services
9.1 When executing an agreement of assignment, Intemo shall determine the manner of execution at its own discretion. In the event that Intemo, on reasonable grounds, is not willing to carry out the assignment in accordance with the instructions given, they may cancel the agreement on account of serious reasons if the other party does hold Intemo to these instructions.
9.2 Intemo shall keep the other party informed of its activities carried out in the execution of the assignment and shall forthwith acknowledge the other party of the completion of the assignment in the event that the other party is unaware of such completion.
9.3 A legal entity with which Intemo concludes an agreement of assignment, shall not be authorized to cancel this prematurely.
9.4 The agreement of assignment shall include a date at which the assignment given through this agreement must be completed. In the event that the other party does not put at Intemo's disposal all necessary data, needed for the execution of the assignment, and this in time and as completely as possible, Intemo shall not be liable for any damage whatsoever the other party may suffer in case the assignment is not completed at the date mentioned.
9.5 In the event that the other party does not fulfill the stipulations of article 5 and/or article 6, Intemo shall be authorized to suspend the delivery of any and all documents and papers of the other party in the broadest sense of the word until they have been fully paid.
9.6 Intemo must be notified of complaints with regard to the execution of the assignment in writing ultimately within 30 days from the completion of the assignment but at least within 8 days from the creation of the cause of the complaint.
9.7 Intemo may invoke circumstances beyond their control as a result of any and each circumstance for which they cannot be blamed. This shall also apply to circumstances that are within the range of influence of Intemo, or in that of their direct or indirect suppliers. Intemo may in particular invoke circumstances beyond their control in case raw materials, semi-finished products and/or finished products are not or not timely delivered by direct or indirect suppliers.
Article 10: Guarantees, Complaints, Liability
10.1 Intemo takes it upon itself to deliver products of which the quantity, quality and packaging satisfies the requirements agreed.
10.2 Intemo shall guarantee the good quality of the products manufactured and services delivered by them. The good quality of products that have not been manufactured by them but only delivered, shall be guaranteed exclusively in so far as a manufacturer's warranty applies to these products. In the latter case, the granting of a guarantee shall be at the discretion of the supplier of Intemo.
10.3 Intemo's obligation to guarantee shall become non-valid in the event that the trademark or signs applied by Intemo have been removed, or in the event that the other party has altered or repaired the products delivered or has had them altered or repaired by third parties. The obligation to guarantee shall also become non-valid in the event that the products delivered have been used for aims different from normal business objectives or have been treated or maintained by the other party in an unprofessional manner
10.4 Any failure of the other party in the observance of its obligations shall relieve Intemo of its obligations.
10.5 The other party shall be fully responsible with regard to the correctness of all data supplied by them. Any errors in calculations, software, other treatments and the like, based on data supplied by or on behalf of the other party, shall be chargeable to them.
10.6 The other party shall not be entitled to derive any right from a reaction by Intemo via e-mail
10.7 Intemo shall exclude any and each liability for any possible errors in the catalogues and product information sent to the other party.
10.8 The other party shall be obliged to accurately test the product at delivery or have them tested in connection with i.a. all visually observable qualities and/or defects. Receiving the products without written observations shall be considered to be acceptance in this matter.
10.9 In the event that nevertheless defects occur, the other party may only send a written complaint to Intemo within 8 days from the delivery. In case one of the products or services delivered by Intemo should have a non-visible defect, the other party may only complain in writing during a period of 12 months from the delivery and this within 8 days from the creation or discovery of the defect.
10.10 The other party shall lose its right to invoke non-conformity of the products in the event that it does not notify Intemo of this in writing within the terms mentioned in paragraph 10.9. This notification must state the nature of the shortcomings and the number of products that show such shortcoming. In the event that defects occur as a result of manufacturing defects, Intemo shall replace the damaged products free of charge in so far as the defects occur within three months from the delivery to the other party. The other party shall not be allowed to return defective products without Intemo's consent. Intemo shall decide in what manner, where and under which conditions the defective products will be returned. The request to return products must be made to Intemo in writing and must contain the data mentioned on the notification form which can be applied for from Intemo.
10.11 The products to be returned by the other party must be packed properly and have a serial number, in so far as applicable, and be accompanied by the purchase receipt.
10.12 The products must be received by Intemo within 10 working days after the submission of the reference, failing which a new reference shall be required which must be applied for by the other party from Intemo.
10.13 Intemo shall only take back the products: 1) that are defective as a result of errors by Intemo or manufacturing defects made by the supplier of Intemo; in case of products returned - except for those articles 10.10 refers to - the amount on the invoice of the products returned shall be fully repaid; 2) that are not covered by the provisions of article
10.10 and are in a good state. The amount on the invoice of these products shall be repaid, subject to a discount because of transportation/forwarding costs made by
10.14 The returned products shall be tested by Intemo. These testing costs shall not be charged in the event that the defect of the product is covered by a guarantee, or when it is a so-called "on approval" shipment of a product or if it is a matter of "damage discovered at delivery".
10.15 The other party shall be informed by Intemo by means of a written confirmation of the testing results and possible solutions that may be offered by Intemo. The other party must return the written confirmation to Intemo before the time limit mentioned by Intemo, failing which the returned goods shall be send back to the other party.
10.16 Intemo may opt for replacement, reparation or repayment of the purchase sum. However, before Intemo sends a new product to replace another, the product to be replaced must be in the possession of Intemo.
10.17 In the event that Intemo decides to repair or replace the product delivered, or to repay the purchase sum, any and each obligation of Intemo against the other party in relation with the product concerned. The forwarding of the products to be repaired/repaired or to be replaced/replaced from and to the other party shall be made at the account and risk of the other party. The products that have been replaced or the purchase sum of which have been repaid, shall be the property of Intemo.
10.18 Micro-processors, memory modules, hard disks, opened software, customized products and special offers will never be taken back by Intemo.
10.19 Guarantee on parts used to repair shall be in force for 30 days calculated as of the date of reparation. The repair works themselves shall be charged on an hourly basis.
10.20 Intemo shall not be liable for any damage suffered by the other party or third parties resulting from products delivered or services executed by Intemo or third parties designated by them unless it is a question of willfulness or intentional recklessness on the part of members of the management board or managing employees of Intemo or of third parties designated by them who have caused the damage.
10.21 The other party shall indemnify Intemo against any and all third parties claims on account of damage they have suffered because of products delivered and/or services executed by Intemo or by third parties designated by them, unless it is a question of willfulness or intentional recklessness on the part of members of the management board or managing employees of Intemo or of third parties designated by them.
Article 11: Failure in the performance of its
obligation by the other party
11.1 The other party shall be in default by operation of law if they: 1)- do not, not in time or not correctly observe its obligations vis-à-vis Intemo; 2)- is bankrupt or has been granted a suspension of payments; 3)- or can no longer carry out its business operations in a normal way; 4)- they refuse to grant the security Intemo has asked for on the basis of article 6.
11.2 Intemo may dissolve the agreement without prior notice of default and without judicial intervention in the cases mentioned in article 11.1, all this notwithstanding all other rights or claims that Intemo is entitled to.
11.3 Any and each claim of Intemo against the other party shall be forthwith and completely exigible in the cases mentioned in article 11.1. In the event that the other party is in default as referred to in article 11.1, then the other party cannot make any claims as regards the term of delivery agreed upon with Intemo.
Article 12: Failure in the performance of its
obligations by Intemo
12.1 The other party may only dissolve the agreement with Intemo if: 1)- Intemo has exceeded a firm term of delivery, put down in writing and explicitly stated by more than 8 days, or in the event that Intemo within the time limit mentioned above, increased by 8 days, has informed the other party that they will not deliver within that period of time; 2)- Intemo does not replace defective products as laid down in article 10.10.
12.2 Before dissolving the agreement, the other party must at all times present Intemo with the opportunity to still observe its obligations in conformity with article 10.
Article 13: Damages
13.1 The liability of Intemo shall be confined to the amount stated on the invoice with regard to damage to products and transaction damage suffered by the other party which is in any way whatsoever in connection with, or caused by not, not in time or improperly performing of an agreement by Intemo or by a third party designated by them, all this with due observance of the stipulations of article 10, but in any case not higher than the amount for which Intemo has taken out an insurance in the matter.
13.2 Intemo shall never be liable for any and all consequential damage. The other party shall at all times be obliged to confine the damage as much as possible. Intemo shall at all times be entitled to undo the damage suffered by the other party in so far as this is possible in any other way than by paying damages.
13.3 Intemo may rely upon circumstances beyond its control if they do not, not in time or not properly perform the agreement owing to a cause for which they cannot be blamed; this may include stagnation of the normal course of business in their enterprise or failure to deliver or not timely delivery by its supplier(s) but is not confined thereto. Intemo shall not be obliged to pay damages in those cases.
Article 14: Final stipulations
14.1 The administration of Intemo shall be decisive regarding the extent of the mutual obligations arising from an agreement between Intemo and the other party, all this barring counter evidence.
14.2 The judgement of disputes arising from or resulting from agreements with Intemo that are governed by these general terms and conditions shall be within the exclusive competence of the District Court in 's-Hertogenbosch and in appeal the Court of Appeal in 's-Hertogenbosch and in appeal in cassation the High Court of the Netherlands, and this with the exclusion of any other court, however, notwithstanding the jurisdiction of the competent subdistrict court in view of the nature and extent of the claim.
14.3 The United Nations Convention on Contracts for the International Sale of Goods, a convention concluded on 11 April 1980, shall apply to disputes but only in the event that it concerns an agreement the convention mentioned above applies to pursuant to its stipulations, barring any deviations from this convention included in these general terms and conditions. Netherlands law shall be exclusively applicable for the rest.
14.4 In the event that any stipulation included in these general terms and conditions shall be declared invalid or not binding on the strength of a judgment by a Court, the remaining stipulations shall remain fully applicable.
14.5 Intemo shall at all time be entitled to amend or adapt these general terms and conditions. These General Terms and Conditions of Delivery has been deposited at the Chamber of Commerce and Industry in Eindhoven.
14.6 The Netherlands version of these general terms and conditions hall prevail over any other version in a dispute on the explanation. So the Netherlands version shall be the starting point