GENERAL GEESA B.V. TERMS AND CONDITIONS OF SALE AND DELIVERY
filed at the Office of the District Court at Utrecht on 17 August 1994 under no. 127/94
ARTICLE 1. APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
These terms and conditions apply to all offers and sales contract for which Geesa b.v. (hereafter referred to as Geesa) acts as a supplier or seller, respectively, unless both parties have expressly agreed otherwise in writing.
ARTICLE 2. OFFER
Any offer by Geesa is without obligation unless the offer expressly demonstrates the opposite; if an offer includes a non-binding offer which is accepted, Geesa is entitled to revoke the offer within 2 working days after receipt of the acceptance. All illustrations, drawings, data concerning weights, measures and colours apply approximately.
ARTICLE 3. CONTRACT
Sales contracts come about when Geesa sends the written acceptance to the purchaser within 8 days after receiving the order for delivery. In derogation of the above line, Geesa’s acceptance of the purchaser’s order can take place also by shipping the goods to the purchaser within 8 days after the order to deliver. If the client modifies the order verbally or by telephone without written confirmation, the risk with regard to the execution of the modifications is at the client’s expense. Verbal promises by and contracts with Geesa subordinates do not bind Geesa unless and insofar as these are confirmed in writing by Geesa.
ARTICLE 4. PRICES
Prices stated by Geesa are exclusive of turnover tax and other public burdens on sale and delivery, and are based on delivery ex-factory according to Incoterms that apply on the date of the offer, except if stipulated otherwise in these terms and conditions. Factory is taken to mean the Geesa company premises. Deviating terms and conditions of delivery for orders in The Netherlands concerning freight costs, surcharges for small orders and return shipments are stated on our price list. If, after the date of the formation of the contract, one or more of the cost price factors rises – even if this is the consequence of predictable circumstances – Geesa is entitled to increase the agreed price mutatis mutandis. If a price increase occurs during the first three months after entering into the contract, the client can dissolve the contract, irrespective of the percentage of the increase. If the price increase amounts to more than 15%, the client is entitled to dissolve the contract, even after the abovementioned period.
ARTICLE 5. DELIVERY
Delivery of the good takes place at the Geesa company by transfer to the transporter or client. Geesa reserves the right to deliver in parts. The date stated in the order confirmation is a target date. Geesa will make every reasonable effort to realise delivery on or prior to this date. As soon as Geesa has knowledge concerning facts or circumstances that render the delivery on or prior to the target date impossible, Geesa will notify the buyer about this in writing, stating the expected new delivery date. The remaining provisions of the contract shall remain in full force. An agreed delivery period is not a firm date, unless expressly otherwise agreed. In the case of untimely delivery, Geesa must therefore be given a written notice of default.
ARTICLE 6. TRANSFER OF RISK AND OWNERSHIP
Immediately after the delivery of the item, or from the moment the client is in default concerning the carrying out of the action with which he/she must collaborate with the delivery, the client shall bear the risk for all direct damage caused to or by this product, unless the cause of this damage can be attributed to Geesa’s gross negligence or intention. If the client is in default concerning the execution of an act to collaborate with the delivery, Geesa is entitled to charge the costs for storing the product to the client. Without prejudice to the above, ownership of the product does not pass to the client until the client has settled all that is payable to Geesa pursuant to deliveries or activities, including interest and costs. Where appropriate, Geesa shall be entitled to full access to the product. The client will render all assistance to provide Geesa with the opportunity to execute the above included retention of title by repossessing the product.
ARTICLE 7. PAYMENT
Unless otherwise agreed, payment shall take place within 30 days after sending the invoice. All payments shall take place without any deduction, at the office of Geesa or into an account to be indicated by Geesa. If the client fails to pay within the agreed terms, he/she shall be in default by operation of law, and Geesa shall be entitled to increase the claim with a statutory default interest to a percentage of 4 points above the promissory note discount rate of the Bank of the Netherlands per month or a part thereof, from the due date of the invoice. The issuing of bills of exchange, cheques and such documents does not qualify as payment as long as the amounts due are not irrevocably in Geesa’s possession. Complaints concerning prices charged and other observations about the invoice shall be submitted to Geesa in writing within 8 days after the invoice date. If the client is in default in the payment of any claim by Geesa, Geesa is entitled to suspend the further execution of all contracts between Geesa and the client until payment has been made. In addition, prior to delivery, Geesa is entitled to require sufficient security for payment and Geesa can suspend the execution of the order for as long as this security has not been provided after requesting it. The payments made by the client shall always serve to settle all interest and costs payable and, secondly, to settle due and payable invoices that have been outstanding for the longest period of time, even if the other party states that the payment pertains to an invoice with a later date. In addition, besides the principal sum and the interest fallen due above, Geesa shall be entitled to charge the client with all reasonable costs, both in and out of court (insofar as they are not settled) arising from the client’s failure to comply with any obligation, for him/her resulting from the contract and this condition. The extra-judicial collection costs are established using the collection rates of the Netherlands Bar Association with a minimum of f 100.00 exclusive of BTW (Dutch VAT).
ARTICLE 8. WARRANTY AND COMPLAINTS
Without prejudice to the restrictions below, Geesa guarantees both the soundness of the product delivered by Geesa and the quality of the material used and/or delivered, insofar as shortcomings to the product delivered are concerned that were not noticeable at the time of delivery, and of which the client proves that they have occurred within the guarantee period, exclusively or mainly as a direct consequence of an incorrectness in the construction applied by Geesa or as a result of an inadequate finishing or use of poor material. The guarantee periods for the various products are stated on our price list. Complaints due to visible shortcomings shall be expressed to Geesa in writing within 8 days after delivery. If this is not forthcoming, the client shall be deemed to have irrevocably accepted the good and can no longer rely on the fact that what has been delivered does not comply with the contract. The products will be repaired or replaced at Geesa’s discretion if the buyer demonstrates that the product has been used and maintained in a normal fashion and informs Geesa of the shortcomings in writing within 10 days after the day on which the shortcomings were discovered or could reasonably have been discovered. Outside the warranty are shortcomings that occur in, or which are entirely or in part the consequence of:
- normal wear and tear;
- non-compliance with the anticipated normal use;
- assembly/installation or repair by third parties, including the client;
- materials or items used in consultation with the client;
- materials or items the client has provided to Geesa for processing;
- materials, items, methods and constructions, insofar as they have been applied at the express instruction of the client, as well as materials and items delivered by or on behalf of the client
- parts Geesa has obtained from a third party, insofar as this third party has not provided Geesa with a warranty.
If Geesa replaces parts/products to comply with its guarantee obligations, the parts/products replaced become the property of Geesa. Geesa’s alleged non-compliance of its guarantee obligations does not release the client from the obligations that arise for him/her from any contract entered into with Geesa.
ARTICLE 9. LIABILITY
Insofar as there is no force majeure at Geesa’s side, Geesa accepts the legal responsibility for injury/damage to persons or items as a result of mistakes attributable to Geesa in the execution of the contract, however, for each case of damage to a maximum payment per occurrence of the liability insurance Geesa has taken out.
ARTICLE 10. FORCE MAJEURE
In these general terms and conditions, force majeure shall be taken to mean each circumstance beyond Geesa’s control – even if this could be anticipated at the time of the conclusion of this contract – which permanently or temporarily prevents the performance of the contract, as well as, insofar not already included, war, danger of war, civil war, riot, strike, lockout, transport difficulties, fire and any other serious breakdown in the company of Geesa or one of its suppliers.
ARTICLE 11 SUSPENSION AND DISSOLUTION
- In the case of an impediment to carry out the contract as a result of force majeure, without judicial intervention, Geesa is entitled to suspend the execution of the contract for a maximum of 6 months or dissolve the contract entirely or in part without Geesa being liable to pay any damages. During the suspension, Geesa is entitled, and at the end thereof obliged to opt for execution or the entire or part dissolution of the contract.
- If the client fails to fulfil his/her obligation due to a shortcoming attributable to him/her, such as a breach of contract, after a prior demand or other explanation insofar as required, he/she will be obliged to pay a fine fixed at 50% of the sales price agreed between the parties to Geesa, or – at Geesa’s discretion – the legal damages.
- Cancellation by the client after order confirmation will bind Geesa only and insofar Geesa agrees to this in writing. We are entitled to charge the client with the damages resulting from this for Geesa, however named, but expressly including lost profits, or, at Geesa’s discretion in the shape of a fixed fine equal to 40% of the sales price agreed prior to the cancellation.
ARTICLE 12. DISPUTES
- Except for the applicability of paragraph 2 of this article and without prejudice to the option to ask for a preliminary injunction in interlocutory proceedings to the president of the competent district court, any disputes that may arise as a result of a contract to which the present terms and conditions of delivery apply entirely or in part, or as a result of further contracts which are a result of such a contract, with the exclusion of the ordinary court, will be settled by an arbitration tribunal. This arbitration tribunal is appointed in accordance with the articles of the Stichting Raad van Arbitrage voor Metaalnijverheid en -Handel (The Council of Arbitration for the Metal Industry Association), established in The Hague and decides in compliance with the articles of this Council.
- Insofar as the disputes described in the above paragraph are part of the absolute competence of the sub-district court according to the rules of Dutch law of civil procedure, only the competent sub-district court can settle the dispute.
ARTICLE 13. APPLICABLE LAW
Netherlands law, which applies to the kingdom in Europe, applies to all contracts to which these conditions apply entirely or in part.
Note: In the event that the interpretation of these conditions leads to a dispute, the Dutch text shall take precedence.