TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS
OF SALE AND DELIVERY OF MARWI EUROPE B.V.
1. GENERAL – APPLICABILITY
- These general terms and conditions of sale and delivery ("General Terms and Conditions") are applicable to all offers and agreements between Marwi Europe B.V., a Dutch limited liability company (in Dutch: 'besloten vennootschap met beperkte aansprakelijkheid'), incorporated under the laws of the Netherlands, having its seat (in Dutch: 'statutaire zetel') in Rotterdam, the Netherlands, its registered address at Corkstraat 1, 3047 AC Rotterdam, the Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 24302793 (hereinafter referred to as "Seller") and a (potential) purchaser of the products and/or services sold and/or delivered by Seller ("Customer"), including but not limited to offers, proposals, sales, deliveries and any other agreements between or services and/or goods delivered and/or sold to the Customer ("Agreement").
- The General Terms and Conditions shall apply to all Agreements and no other general terms and conditions apply, unless Seller explicitly agreed to the applicability of such other terms and conditions in writing. The applicability of the terms and conditions of Customer are herewith explicitly rejected.
- Seller preserves the right to amend the General Terms and Conditions from time to time. Any such amended General Terms and Conditions shall apply from the moment Seller has published the amended General Terms and Conditions on its website. Customer shall consult the Seller's website on a regular basis to verify if the General Terms and Conditions have been amended.
- If a provision of these General Terms and Conditions is incompatible with the provisions included in the specific Agreement(s) between Seller and Customer, the provisions in the relevant Agreement will prevail. Possible arrangements deviating from these General Terms and Conditions will not be enforceable, unless Seller has agreed in writing to such deviations.
2. OFFERS, ORDERS AND CONFIRMATIONS
- Price quotations and offers made by Seller to Customer are not binding upon Seller and merely constitute an invitation to Customer to place an order. All price quotations and offers made by Seller to Customer are revocable and subject to change within two (2) calendar days after receipt of Customer's acceptance.
- The calculations, illustrations, drawings, dimensions, weights, other performance data, technical or other documents appearing in Seller’s price quotations and offers apply only as approximating description and are entirely without obligation, unless expressly stated otherwise by Seller in writing.
- An Agreement between Seller and Customer shall come into effect at the time when Seller receives an (complete or partial) order from Customer, and Seller accepts this order by means of a written confirmation of such order. Such written confirmation may also take place by electronic means, either by email or otherwise. The written order confirmation of Seller shall be decisive for the scope of the Agreement.
- Seller reserves the right to, at all times, engage (third) parties in the execution of the Agreement or with regard to any related activities.
- All prices stated by Seller in any offer or Agreement are for products (including services) only and unless agreed otherwise, prices are inclusive of packaging, freight, insurance and other transport related costs, import and export duties, VAT and of any governmental taxation imposed upon the sale and/or supply of any products or services delivered by Seller to Customer.
- The price stated in Seller's order confirmation shall be binding and shall be deemed accepted by Customer unless Customer objects to the price in writing immediately after receiving the order confirmation.
- All prices shall be based on delivery 'DAP' as defined in the Incoterms 2020 (or any updated version thereof) from the warehouse used by Seller, unless explicitly agreed otherwise.
- Discounts granted by Seller are one-off discounts, unless expressly stated otherwise by Seller in writing. Any deviating from and/or regular granting of a discount in the past shall not constitute any obligation on Seller's part to grant a discount on any other invoices.
- In the event changes occur in cost price factors (such as costs of (raw) materials, government measures, freights, exchange rates, taxes, etc.) after the formation of an Agreement, Seller is entitled to stipulate that the prices of its products and services will be increased accordingly, unless the prices have been indicated as firm by Seller. Seller will notify Customer in writing if a price increase occurs. If Customer has not informed Seller that it wishes to terminate any outstanding offers under an Agreement within fourteen (14) calendar days] after the price increase has been communicated by Seller, the Customer will be deemed to have accepted the price increase.
- Any and all prices included on a received order from Customer are not valid nor binding, and are hereby explicitly rejected by Seller.
4. INVOICING AND PAYMENT
- Unless expressly stated otherwise in Seller's Confirmation, payments shall be made on the agreed date, in the currency specified by Seller and to the bank account specified by Seller on its invoice. In case no date for payment has been agreed upon and no date is specified on the invoice, payments must be made within fourteen (14) calendar days) following the date of Seller's invoice.
- In the event Customer fails to timely meet the payment of any amount due, then Seller shall be entitled, but not be obliged, to charge interest at the statutory commercial rate as specified in article 6:119a of the Dutch Civil Code, increased by one percent (1%) per month on the outstanding amounts, commencing at the time the amount in question became due and payable. For each day lapsed in the month in which Customer has paid the delayed payment of the amounts due, the additional interest of one percent (1%) shall be charged on a pro rata basis.
- In the event Customer fails to timely make the payment of any amount due, Seller shall be entitled to suspend any (further) deliveries or amounts due to Customer.
- All costs to be made by Seller pursuant to a shortcoming by Customer in meeting its payment and/or other obligations towards Seller shall be reimbursed by Customer. These costs shall include both judicial and extrajudicial costs, including but not limited to the costs of legal and other advisors.
- Payments to Seller shall deemed to have been made firstly in order to settle any costs incurred by Seller, secondly to settle any interest incurred, and subsequently to pay any payable invoices in the sequence determined by Seller, even where Customer indicates that its payment is intended to pay other invoices and/or liabilities.
- Any objections in relation to Seller’s invoices must be submitted within seven (7) calendar days from the date of the invoice, in default of which the invoice shall be deemed to be accurate and accepted by Customer.
- Seller reserves the right to offset (verrekenen) any outstanding amounts due towards Customer with any of the (potential) amounts due by Customer towards Seller.
- Customer shall not be entitled to any set-off, deduction, or suspension in respect to amounts owed to Seller under an Agreement.
- Delivery shall be 'DAP' as defined in the Incoterms 2020 (or any updated version thereof) from the warehouse used by Seller. This method of delivery entails that Seller delivers the products from the warehouse located at DSV Air & Sea, in Dordrecht, the Netherlands to the named place of destination, specified by Customer (the "Delivery"), unless another method has been agreed upon.
- As of the Delivery, any risk and/or costs, with respect to the transportation of the delivered products or otherwise, shall be borne by Customer.
- All delivery dates indicated by Seller shall be indicative and Customer cannot derive any rights from late delivery. In the event Delivery cannot take place on the indicated date, Seller shall communicate to Customer the new expected date of Delivery. If following that period the Delivery has still not taken place, Customer must place Seller in default, in writing, granting Seller a reasonable period to meet its delivery obligations: (i) without Seller becoming liable for any compensation for damages, (ii) without Customer and/or any third party being entitled to terminate the Agreement, and (iii) without Customer and/or third parties being entitled to suspend one or more of their obligations towards Seller.
- Seller is at all times entitled to make partial deliveries and to invoice such deliveries separately.
- In the case of series or special productions, Seller reserves the right of an excess or short delivery of products of ten percent (10%). The excess or shortfall will be invoiced accordingly.
- Customer is obliged to examine whether the quality and quantity of the delivered goods conform to the Agreement.
- Complaints regarding the delivered goods must be made by Customer to Seller in writing, including a reasonably detailed specification of the reasons for the complaint and a sufficiently clear description of the defect(s) and/or damage of the delivered products, and must be made as soon as practically possible, but ultimately within fourteen (14) calendar days from the delivery date of the products with respect to any default, defect or shortage which would be apparent from a reasonable inspection on delivery, and ultimately within fourteen (14) calendar days from the date on which any other concealed defect was or reasonably should have been detected, in the absence of which the products shall be deemed to have been unconditionally approved and accepted by Customer. Any rights of Customer regarding any defects not notified to Seller in accordance with the preceding sentence shall be permanently excluded.
- Complaints reported in accordance with article 6.2 can, if well founded by Seller, only lead to replacement of (part of) the products supplied, or – at Seller's sole discretion – crediting Customer for the agreed price of the defective products. Costs of disassembly and reassembly will not be reimbursed.
- Complaints, if any, do not affect Customer’s payment obligations under the Agreement.
- Consumer is only entitled to return products to Seller after prior written approval of Seller.
7. RETENTION OF TITLE
- All products delivered by Seller to Customer shall remain the legal property of Seller, until the moment Customer has paid the relevant amounts for the products and has fulfilled all of its obligations under the relevant Agreement, including but not limited to the satisfaction of any interest due or costs to be reimbursed to Seller. In case Customer fails to fulfil any of its (payment) obligations under an Agreement, Seller has the right, without any notice being required, to recollect any of the products delivered. Customer is obliged to return any of the products delivered under the retention of title of this article upon Seller's first request. All costs to be made with respect to such return shall be for the account of Customer.
- As long as Customer has not fulfilled all its (payment) obligations, it shall not be entitled to pledge, encumber or dispose in whole or in part any of the products delivered by Seller. Upon Seller's request, Customer shall immediately pledge any claims it may have now or will have in the future on third parties, including but not limited to its customers, with respect to the products, to and for the benefit of Seller.
- Customer shall inform Seller immediately if one or more of the following situations arises:
- third parties have or will have valid entitlements to the products delivered by Seller under retention of title, or Customer becomes aware of that fact;
- Customer or one of its creditors applies for bankruptcy or (provisional or final) cessation of payments with regard to Customer;
- a request for a declaration of bankruptcy is submitted in relation to the Customer or Customer is declared bankrupt, or provisional or final suspension of payments is granted to him;
- a significant element of the Customer's assets are or will be seized, or, in case of an account preservation order, such preservation is not lifted or released within thirty (30) calendar days;
- Customer becomes involved in or is subject of a merger, demerger or division or some comparable procedure;
- Customer becomes involved in negotiations or proposes to enter into negotiations with one or more of its creditors, or proposes to initiate proceedings in relation to a general adjustment to or settlement of its burden of debt; or
- Customer is or will be dissolved, or its business will in whole or in part be relocated, liquidated, discontinued, suspended or moved abroad.
8. LIMITATION OF LIABILITY
- This article 8 (limitation of liability) applies to all liabilities on the part of Seller, regardless of the basis of such liability.
- Seller shall not be responsible for losses, cost or damages suffered or to be suffered in future which are the consequence of late Delivery or Deliveries in stages.
- Seller shall only be liable for any other damages apart from those specified in article 8.2, where these damages are attributable to intentional damage or gross negligence on the part of Seller.
- In the event that Seller should be held liable, it shall only be liable for financial loss (geleden verlies) within the meaning of article 6:96 of the Dutch Chamber of Commerce, which financial loss is the direct result of the intentional damage or gross negligence on the part of Seller.
- Seller shall in no circumstances be liable for any indirect damages, loss of earnings, loss of contracts, losses, missed savings, incurred costs or other (consequential) damages.
- Seller shall not be liable for damages where the amount of the damages exceeds the amount paid out to Seller (and for which reasonable cover is provided) under its commercial liability insurance. Any liability shall in any event be limited to the lower of (i) the purchase price of the products which have caused the damages in question, and (ii) a total amount of EUR 10,000 (in words: ten thousand euros) in aggregate.
- Customer is liable for and shall indemnify Seller (and its employees, officers, directors, trading agents and advisors) against any and all claims, demands, legal proceedings, damages, losses, liabilities, costs and/or expenditure (including costs of legal representation, costs of proceedings and/or costs of mediation or arbitration) from third parties following from or connected with intentional damage or gross negligence on the part of Customer, its group of companies and/or its employees, trading agents and/or agents. Customer is liable for and shall indemnify Seller (and its employees, officers, directors, trading agents and advisors) against each and all claims, demands, legal proceedings, damages, losses, liabilities, costs and/or expenditure (including costs of legal representation, costs of proceedings and/or costs of mediation or arbitration) suffered by and/or made against Seller (and its employees, officers, directors, trading agents and advisors) as a consequence of a breach by Customer, its affiliated companies and/or its or their employees, trading agents and/or agents of a contractual or other obligation towards Seller, except where such claims, demands, legal proceedings, damages, losses, liabilities, costs and/or expenditure are the consequence of intentional damage or gross negligence on the part of Seller.
- Customer shall comply at all times with all applicable international, European and National Acts and Regulations relating to consumer safety, product safety and the recall of products, and shall comply with and cooperate fully with the instructions of each and every national authority and/or Seller relating to consumer and/or product safety or the recall of products.
- Unless the recall of products is based on applicable acts and regulations, or is recommended by or on behalf of any government agency, Seller shall be entitled to determine whether an action relating to the products qualifies as a recall of those products, and Seller shall inform Customer accordingly. At the request of Seller, Customer shall indemnify each of its Customers inter alia to cease the use of the products with immediate effect, to return the products to Seller or to a third party to be identified by Seller, and/or to immediately carry out specified maintenance activities on the products delivered by Seller or to have these carried out. Seller and Customer shall inform one another immediately of each and every potential or threatened recall procedure. Customer shall be required to establish a suitable and detailed recall strategy, which will enable Customer to implement and coordinate a satisfactory recall procedure and to monitor compliance with and implementation of this procedure, all with the aim of being able to guarantee the highest possible level of product safety.
9. FAILURE TO COMPLY AND FORCE MAJEURE
- In the event that Customer fails to meet an obligation under the Agreement(s) and/or these General Terms and Conditions, then Seller shall be entitled to (i) demand performance of the obligation in order to obtain the deliverables in respect of which the other party has obligated himself to Seller, including but not limited to the obligation on Customer to take delivery of the products, (ii) immediately (have) dissolve(d) the Agreement(s) in whole or in part by giving notice of dissolution, or (iii) suspend the fulfilment or further fulfilment of its obligations under the Agreement(s) and to recover the products, all the foregoing without prejudice to Seller's entitlement to compensation for all losses or damage suffered by Seller, or to any entitlement which may accrue to Seller, and without any liability to make any form of compensation on the part of Seller.
- In the event that Seller dissolves, terminates (by giving notice or dissolution) or suspends the Agreement(s), then all of Seller's claims against Customer shall be due and payable immediately, and Seller shall be entitled to immediately suspend further performance of other agreement(s), without prejudice to any entitlement potentially accruing to Seller.
- Seller shall not be liable for the performance of any of its obligations under the Agreement(s) in case it has not been able to properly or punctually perform its obligations due to a matter of force majeure. In the event of a force majeure, Seller is entitled, at its sole discretion, to alter the Delivery term, to cancel any orders or to terminate the Agreement(s) without judicial intervention and without any requirement for the payment of compensation.
- Matters of force majeure which shall in no circumstances be at the risk of Seller include, but are not limited to, the following: (i) the behavior of persons appointed by Seller to fulfil their obligations towards Customer, with the exception of cases of intentional damage or gross negligence, (ii) the unsuitability of products used by Seller in fulfilling its obligations towards Customer, (iii) the exercise of one or more entitlements by third parties in relation to Customer in relation with Customer's failure to fulfil its obligations under an agreement with that third party relating to the Delivery of the products, (iv) government legislation or orders prohibiting or limiting the use of the products delivered or to be delivered, (v) suspension or closure of Seller's business, (vi) sickness of personnel, (vii) transport problems, (viii) import or export restrictions or prohibitions, (ix) failure to complete orders or late completion of work by Seller's suppliers, (x) disruption to the process of producing the products, (xi) natural disasters or nuclear incidents, (xii) pandemics, (xiii) war or the threat of war, (xiv) negligence on the part of Seller, with the exception of intentional damage or gross negligence and/or (xv) other circumstances beyond the reasonable control of Seller.
10. INTELLECTUAL PROPERTY
- For the application of these General Terms and Conditions, 'Intellectual Property Rights' means all patents, trademarks, service marks, trade names, registered trademarks, designs, company names, authors rights, database rights, model rights, domain names, moral rights, inventions, confidential information, knowhow and other (existing or future) intellectual property rights and interests, whether or not registered, whether the property of Seller or obtained under license by Seller or (one of) the companies in its group, from a third party and related to or embodied in the products or any other materials from or provided by Seller. Customer hereby acknowledges that the Intellectual Property Rights are and shall remain the property of Seller, the companies in its group or the relevant third parties from whom Seller or the companies in its group have obtained a license for the use of the Intellectual Property Rights.
- Customer may not breach the Intellectual Property Rights associated with the production, design, brand name or packaging of any Seller's product purchased by Customer and/or introduce any modifications to the products delivered by Seller, unless the nature of the products delivered requires otherwise. Customer is also prohibited from copying or imitating the products of Seller in any way and/or producing them in the same or a comparable manner.
- Customer may not make use of trademarks, service marks, trading names or trademark registrations from or belonging to Seller, without the prior written permission of Seller, which permission shall be granted or withheld at the discretion of Seller.
- Seller and Customer shall not provide confidential information to third parties from and regarding the other party, its activities and relationships, which has come to their knowledge in the execution of the Agreement, unless (i) the provision of such confidential information is necessary to adequately execute the Agreement and the other party has given its written consent thereto, or (ii) the respective party is under the legal obligation to disclose such information.
- Customer is obligated, and commits itself, to ensure that its employees and contractors are subject to and shall remain subject to non-disclosure agreements which are at least equal to the provision as set out in article 11.1 of these General Terms and Conditions.
- Customer shall indemnify Seller against claims from third parties related to the non-compliance or improper compliance with any non-disclosure agreement by an employee.
12. NO RELINQUISHMENT
- An omission on the part of Seller in demanding compliance with any stipulation in these General Terms and Conditions or an Agreement or in responding in some other way to a breach of these by Customer or another party, shall under no circumstances entail that Seller relinquish its entitlements to demand compliance with the respective stipulation of the Agreement and/or these General Terms and Conditions.
13. DATA PROTECTION
- Customer shall at all times comply with the applicable national and international laws and regulations regarding data protection and/or the sharing, transferring or otherwise processing of (personal) data, including, but not limited to, the General Data Protection Regulation ("Privacy Legislation").
- If and when Customer shares or otherwise processes data to which the Privacy Legislation applies, Customer shall:
- nform Seller thereon beforehand or, if not possible, notify Seller of this as soon as possible;
- provide its full cooperation to drafting, entering into and implementing all required agreements and other documentation, including, but not limited to, processor agreements;
- involve third parties only in the processing of such data if Seller has given it's prior written consent thereto;
- ensure that all its affiliates or third parties involved in sharing or otherwise processing the data, comply with the Privacy Legislation at all times;
- t Seller's request and with due observance of the Privacy Legislation, provide all information that Seller reasonably requires to comply with its obligations under the Privacy Legislation; and
- take sufficient technical and organizational measures to ensure a risk-adapted level of security for the processing of the relevant information and/or data.
- Seller and Customer shall only process personal information or data or other information if this is strictly necessary for the purpose of the performance of an Agreement and shall only do so with due observance of the provisions related thereto in an Agreement and in any agreements, possibly entered into between Seller and Customer, that specifically relate to the Privacy Legislation, including, but not limited to, processor agreements.
- If an Agreement is terminated (for any reason whatsoever) and/or at any other time upon Seller’s request, Customer shall, in accordance with the Privacy Legislation, return all (personal) data and/or information (including all copies thereof) to Seller immediately or destroy all such (personal) data and/or information.
14. TERMINATION AND DISSOLUTION
- Where an Agreement is entered into for an indeterminate period and because of its nature and content it does not terminate by virtue of its completion, then it may be terminated by Seller by means of cancellation in writing. Where no explicit period of notice forms part of the Agreement, then a reasonable period of notice is to be taken into account, with a maximum duration of one (1) month. Seller shall in no circumstances be liable to pay compensation for damages on the grounds of cancellation of the Agreement.
- In all cases where Seller terminates the Agreement by way of dissolution or giving notice to Customer, Customer shall be obligated to reimburse Seller for all damages, costs and loss of earnings, including but not limited to the costs of recovery and the costs of legal and other advice, and to return to Seller all products which Seller has already delivered. The products shall continue to be at the risk of Customer until such time as Seller has received and approved the products in question. In the event of dissolution of the Agreement by Customer, Seller shall not be required to make compensation for damages and/or loss of earnings on the part of Customer.
- Seller may terminate the Agreement with immediate effect in whole or in part without notice of default in the event that: (i) cessation of payments is granted to Customer, whether or not provisionally, (ii) an application is made for the bankruptcy of Customer, (iii) the Customer's business is terminated or liquidated and/or (iv) when Customer is involved in or is the subject of a merger, demerger or division, or some comparable procedure. Seller shall in no circumstances be liable to (i) reimburse monies already received or (ii) to pay compensation for damages.
15. GOVERNING LAW AND JURISDICTION
- The laws of the Netherlands shall apply to all Agreements and other legal relationships between Seller and Customer, as well as to these General Terms and Conditions, unless expressly agreed otherwise. The stipulations of the United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to the legal relationship between Seller and Customer.
- All disputes arising out of or connected with an Agreement or compliance therewith or other legal relationships with Seller, as well as all disputes relating to these General Terms and Conditions shall be brought before the competent court of Rotterdam, the Netherlands.