Terms and conditions of sale
These general terms and conditions of sale have been registered in February 2003 with the Chamber of Commerce in Zwolle under number 34123000.
ARTICLE 1 SCOPE
1.1 These general terms and conditions apply to all inquiries, quotations and contracts in which Brink Climate Systems B.V. or one or more of the subsidiary companies and/or participations of Brink Climate Systems B.V. (further to be designated 'Brink'), acts/act as seller of goods.
1.2 Divergence from these terms and conditions may be agreed only in writing.
1.3 General terms and conditions, however designated, of the other party dealing with Brink (hereafter designated the other party) shall not apply.
ARTICLE 2 QUOTATIONS
2.1 Quotations from Brink and also details such as prices, dimensions, colours and other specifications included in catalogues and other documentation of Brink are without engagement and subject to change, unless otherwise stipulated in that documentation.
2.2 Should the other party not accept a quotation from Brink, it must return the quotation and all associated documentation to Brink immediately.
2.3 Brink shall be entitled to charge the other party for the costs that are involved in (the preparation of) a quotation, provided that Brink has notified the other party beforehand of this in writing.
ARTICLE 3 CONTRACTS
3.1 Should a written order be placed by the other party in response to an irrevocable quotation by Brink, the contract shall be concluded at the moment that Brink receives the order.
3.2 Should a written order by the other party not be preceded by a quotation by Brink or by a discretionary quotation by Brink, the contract shall be concluded at the moment that Brink sends the written order acknowledgement or that Brink proceeds with implementation of the contract.
3.3 When and insofar as the procedure stipulated in paragraphs 1 and 2 of this article is conducted using EDI (Electronic Data Interchange) or fax, the EDI and fax messages shall be deemed to be written documents.
ARTICLE 4 PRICES
4.1 The prices are denominated in Euro, not including VAT and are based on the delivery condition stipulated in article 5 paragraph 2.
4.2 When after conclusion of the contract but prior to delivery, one or more price determining factors such as purchase prices, material or parts prices, wage costs, levies, taxes, exchange rates and the like increase, Brink shall be entitled to modify its selling prices accordingly.
4.3 Brink shall inform the other party as soon as possible in writing of the prices modified in accordance with paragraph 2 of this article.
4.4 When the price increase amounts to more than 10% of the original price, the other party shall be entitled to dissolve the contract in writing within 7 days of receipt of aforesaid notification, unless this appears in view of the circumstances unreasonable. Dissolution pursuant to this paragraph entitles neither party to compensation for any damage.
ARTICLE 5 DELIVERY
5.1 The terms and conditions of delivery shall be interpreted in accordance with the 'Incoterms', edition 2000, published by the International Chamber of Commerce in Paris.
5.2 Delivery, unless agreed otherwise, shall be 'ex works'.
5.3 Delivery times agreed may under no circumstances be regarded as deadline.
5.4 Brink shall undertake all that is reasonably possible to realize delivery on or within the delivery time agreed. As soon as it is aware of facts and/or circumstances that render delivery on or within the delivery time agreed impossible, it will notify the other party as soon as possible stipulating the new delivery time anticipated.
5.5 When failure to complete delivery, as stipulated in the previous paragraph, persists for longer than 3 months from the delivery time originally agreed, the other party shall be entitled to dissolve the contract by registered letter, without either party being obligated to compensate the other for damages.
5.6 When Brink for the purposes of implementation of the contract requires information and/or documentation from the other party and/or third parties or when specific formalities have to be fulfilled, the delivery time will commence only at that moment when all information and/or documentation is in the possession of Brink and/or all formalities have been fulfilled.
5.7 Brink shall be entitled to make partial deliveries.
5.8 When the other party does not accept the goods at the time agreed the risk for the goods shall pass from Brink to the other party at the moment that the other party is in default and Brink shall thereafter store and insure the goods for a reasonable period for account and risk of the other party.
ARTICLE 6 TITLE
6.1 The title to the goods shall devolve from Brink to the other party only after the other party has defrayed the purchase price and all remaining duties that it are due to Brink pursuant to any purchase contract and also pursuant to a claim for default in the fulfilment of such contract(s).
6.2 The other party shall not be permitted to alienate, encumber, secure restrictive rights to or otherwise dispose of in conflict with retention of title goods supplied by Brink under retention of title other than in the normal conduct of business.
6.3 Should the other party fail in fulfilment of its obligations under the contract it shall be by process of law in default and Brink shall be entitled without further notice of default - without prejudice to that stipulated in article 14 - to recover all goods that are subject to retention of title. The other party shall provide Brink with the opportunity to do so and grant Brink access to the location(s) where the goods are located.
ARTICLE 7 PAYMENT
7.1 Payment shall be at Brink’s discretion, either cash on delivery or within 30 days of delivery.
7.2 Payments made by the other party shall serve first for satisfaction of costs and interest due and then for invoices due that have remained the longest unpaid, even when the other party asserts that the payment relates to a later invoice.
7.3 In the event of failure to pay on time the other party shall be by process of law in default without necessity of any form of notice of default and shall be obligated to compensation of the legal interest rate plus 2% over the amount due for the duration of default.
7.4 All court and out-of-court expenses that Brink has to incur in connection with recovery of its claim(s) on the other party shall be entirely for account of the other party. The out-of-court expenses shall be set at 15% of the unpaid amount with a minimum of € 250.00.
7.5 Brink shall be entitled in cases that it so determines to secure assurances for fulfilment of obligations pursuant to the contract by the other party by:
- supplying goods cash on delivery;
- requiring full or partial payment in advance;
- requiring that the other party supplies an irrevocable and inconditional bank guarantee issued by a credit institution that Brink deems acceptable.
7.6 The costs incurred in connection with the provisions of paragraph 5 of this article shall be for the other party’s account.
7.7 The other party shall not be permitted to set off claims that it has on Brink against claims that Brink has on it.
ARTICLE 8 RESOURCES
8.1 Budgets, catalogues, illustrations, drawings, specifications and other documentation supplied by Brink to the other party, and also all models, moulds, patterns, stamps, tools and other resources that Brink employs in discharge of the contract, including resources procured or produced especially for the delivery to the other party by Brink, shall remain at all times Brink’s property.
8.2 The other party shall be obligated for its account for all documentation and resources that are supplied to it:
- to mark as recognizable property of Brink;
- to maintain in good condition;
- to insure against all risks for as long as it functions as keeper of those resources;
- to place at Brink’s disposal upon first request.
8.3 The other party shall be prohibited without prior written permission from Brink from reproducing, copying, providing third parties with access to or employing for the benefit of third parties or, whether or not for security, transferring to third parties aforesaid documentation and resources.
ARTICLE 9 TRANSFER OF RIGHTS AND OBLIGATIONS
Brink retains the right to contract out in full or part the fulfilment of its obligations pursuant to the contract to third parties.
ARTICLE 10 INDUSTRIAL INTELLECTUAL PROPERTY
10.1 Should the other party have specified a particular construction, material type or method of operation the other party shall indemnify Brink for prior rights of third parties to such construction, material type or method of operation and compensate Brink and/or third parties for the damage incurred.
10.2 Brink retains all intellectual and industrial property rights with regard to goods supplied - even when these have been developed in collaboration with the other party - and with regard to documentation and resources specified in article 8 paragraph 1.
10.3 Upon first request by Brink the other party shall provide its assistance with the formalities required for establishment and/or maintenance by Brink of the property rights stipulated in the previous paragraph.
ARTICLE 11 CONFIDENTIALITY
11.1 The other party guarantees with respect to third parties confidentiality with regard to all corporate information emerging from Brink that has come or been brought to its attention in any way whatever.
11.2 Goods emanating from joint developments of both Brink and the other party may not without prior written permission from Brink be applied for purposes of third parties.
ARTICLE 12 WARRANTY
12.1 Brink warrants that the goods supplied or parts thereof shall remain for a period of 12 months from delivery remain free of defects that are the direct result of material, manufacturing and/or construction errors.
12.2 Contrary to that stipulated in paragraph 1 of this article the warranty for goods that Brink has procured from third parties or has had third parties develop and/or manufacture is restricted to the warranty that Brink transpires to be able to realize from these third parties.
12.3 An appeal to warranty will be accepted by Brink for processing only when this has been submitted in writing to Brink within 14 days of the defect being detected or within 14 days of the defect having reasonably been capable of detection.
12.4 All warranty claims lapse when:
- the other party has itself made or has had third parties make changes or repairs to the goods supplied without prior written permission from Brink;
- there is evidence of injudicious application and/or application for purposes other than those originally and normally intended;
- the assembly and/or user instructions have not been strictly observed;
- during assembly other than the original (and included) Brink parts have been used;
- the defect is the result of causes other than material, manufacturing and/or construction errors;
- supply of used (second hand) materials, parts and goods has been agreed;
- the other party is negligent in fulfilment of obligations that are attendant upon the contract;
- there is evidence of constructions, materials or methods of operation supplied or prescribed by the other party;
- there is evidence of no, defective or inadequate maintenance;
- the defect is a result of normal wear and tear.
12.5 Slight deviations in dimensions, colour, weight or number shall not form grounds for appeal to warranty.
12.6 The costs of repairs to the goods supplied that the other party has carried out or has had third parties carry out without Brink’s prior written approval shall under no circumstances be for Brink’s account.
12.7 Brink shall pursuant to its warranty obligations be obligated only to repair and/or replace for its account goods or parts thereof supplied by it in the Netherlands. Brink retains the right to charge associated costs such as travel, accommodation and wage costs and the costs for forwarding and (dis)assembly to the other party.
12.8 When Brink in the discharge of its warranty obligations supplies replacement goods and/or parts thereof, the goods and/or parts thereof so replaced shall become Brink’s property at the moment of replacement.
12.9 Return shipments shall be accepted only after prior written permission from Brink. Return shipments shall be for account and risk of the other party.
ARTICLE 13 LIABILITY
13.1 Brink shall be liable for damage to the other party and/or third parties only when and insofar as the damage is the result of the direct and immediate consequence of implementation of the contract by Brink.
13.2 Brink shall be in no manner whatsoever liable for any form of indirect damage, including (but not limited to) loss of profits or incomes, loss including loss of production, costs of shutdown or delay, penalties or discounts and all payments to third parties.
13.3 Brink’s liability as defined in this article shall be limited to a maximum of the amount for which Brink has insured liability, unless the other party demonstrates that the damage is a result of wrongful act, negligence or malicious intent on the part of Brink.
13.4 The other party indemnifies Brink for claims by third parties for compensation for damage for which Brink is not liable on the basis of the previous paragraphs of this article.
13.5 The other party shall notify Brink as soon as possible of claims to compensation for damage as stipulated in this article.
ARTICLE 14 DISSOLUTION
14.1 In the event of failure on the part of the other party to fulfil its obligations pursuant to the contract or contracts that proceed from it, and also in the event of its bankruptcy,
moratorium of payment (or when a petition has been submitted to that effect) and in cases of stoppage, liquidation or takeover or any other comparable circumstances of the business of the other party, it will be by process of law in default. Brink shall then be entitled to dissolve unilaterally the contract in whole or part by registered letter to the other party without notice of default or legal intervention and/or to suspend fulfilment of its obligations pursuant to the contract, without Brink’s being liable for any compensation for damage and without prejudice to Brink’s further rights, including the right to complete compensation for damage.
14.2 All claims that Brink may in such cases entertain or obtain from the other party shall become immediately due on demand.
ARTICLE 15 APPLICABLE LAW, DISPUTES
15.1 This contract and all contracts proceeding from it shall be governed exclusively by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (the so-called Vienna Sales Convention 1980) shall not apply to aforesaid contracts.
15.2 All disputes (including those that are regarded by only one party as such) that may arise between parties as a result of this contract or contracts proceeding from it shall at Brink’s discretion be submitted to the judgement of arbitrators, appointed and giving judgement in accordance with the rules of the Netherlands Arbitration Institute (N.A.I.) in Rotterdam, or to the competent court in the Arrondissement of Zwolle.
15.3 Arbitration shall be subject to the following provisos:
- the arbitration panel shall comprise three arbitrators;
- arbitration shall be conducted in Zwolle;
- the procedure shall be conducted in the Dutch language.
ARTICLE 16 CLOSING PROVISIONS
16.1 When and insofar as the contract comprises (also) the implementation of installation and/or assembly activities by Brink, these activities shall - with exclusion of these terms and conditions of sale - be governed by the General Terms and Conditions for Installation Operators (ALIB’92).
16.2 These terms and conditions have been drawn up originally in the Dutch language. In the event of ambiguity or difference in interpretation and/or explanation of a translated version of these terms and conditions the Dutch text shall at all times prevail.
Edition February 2003