Standard purchase conditions of Mush Comb BV at Horst
filed with the Chamber of Commerce in Venlo.
Art. 1 General terms and conditions
1.1 These terms and conditions are the standard purchase conditions of Mush. Comb. B.V., having its registered office and principal place of business in Horst (the Netherlands).
1.2 These standard purchase conditions shall apply to all juristic acts with regard to the purchasing of goods and services by Mush. Comb. B.V.. Mush. Comb. B.V. shall hereinafter also be referred to as the "purchaser".
1.3 The party who, by signing a document, or by accepting, in any other manner, the validity of these standard terms and conditions, shall hereinafter be referred to as the "vendor".
1.5 Reference by the vendor to his own terms and conditions shall not be accepted by the purchaser and shall, therefore, not apply, unless accepted in writing by the purchaser.
1.6 If one or more stipulations from these terms and conditions should appear to be invalid or annulled, this shall not affect the legal force of the other stipulations.
Art. 2 offer and acceptance:
2.1 A request to submit an offer shall always be without engagement, unless explicitly agreed upon otherwise in writing.
2.2 All orders given by the purchaser and alteration orders must be confirmed by the vendor by the returning within 14 days of a signed option of that order or alteration order. An order given may be withdrawn free of charge by the purchaser if the confirmation has not been received by the purchaser yet.
2.3 If the vendor executes an order without the instruction to carry out the order, as referred to above, being returned in the manner referred to above, the vendor shall nonetheless be deemed to have accepted the applicability of this purchase condition and the order or alteration order, in accordance with the terms and conditions specified by the purchaser.
Art. 3 Additions or changes to the agreement.
3.1 Additions or changes to the agreement shall only be binding on the purchaser in so far as these have been agreed upon in writing. In the absence thereof the vendor cannot lay claim to any other consideration than the one which has been agreed upon in writing.
Art. 4 Guarantee of quality and the quality of the supply
4.1 The vendor shall guarantee:
a) that the nature and composition of the objects sold shall remain unchanged from the moment when the purchase agreement comes into effect till the moment when the objects bought are delivered to the purchaser;
b) that all relevant guarantee certificates, descriptions and other documentation shall be delivered to the vendor, if and in so far as these were available at the moment when the agreement was concluded, or if they became available after that; ;
c) if written specifications have been recorded in the relation between the purchaser and the vendor, that the objects delivered are of good quality and free from mistakes and/or defects;
d) that, if the supply also consists of making labour available, this shall be in accordance with the statutory requirements and the workers shall comply with the requirements agreed upon, or (if no specific arrangements have been made in this respect) with the prevailing professional standards, and the number of labour agreed upon shall be constantly available during the period agreed upon.
Art. 5 Inspection, testing, acceptance et al
5.1 Written approval by the purchaser of the supply shall count as acceptance thereof, without prejudicing the other provisions in these general terms and conditions.
5.2 The purchaser shall be authorized, until the moment when factual delivery or handing over has taken place, to inspect the objects purchased if so desired, or to have them inspected. If, during this inspection, it should appear that the objects or goods in question do not meet the demands made by the purchaser, or do not meet them in their entirety, the purchaser shall reserve the right to dissolve the agreement, to claim damages or, if possible, to demand repair.
5.3 The vendor shall be obliged to hold inspection reports and the like, if any, available for the purchaser for a period of 10 years, to which product liability in accordance with article 6:185 of the Netherlands Civil Code and the following may apply with regard to the objects delivered to the purchaser. All this if and in so far as the documents concerned are still available with the vendor or could be made available in a simple manner.
5.4 If the purchaser shall be held liable on the basis of article 6:185 of the Netherlands Civil Code, the vendor shall indemnify the purchaser in full, as well as make available the documentation referred to above, at the latest within two weeks after a written request thereto has been received from the purchaser .
Art. 6 Packaging and shipping
6.1 The vendor shall pack up the consignment in such a way that it shall reach its place of destination in a good condition in case of normal transport, so that the consignment may be unloaded safely there. Special demands or requirements made by the purchaser, the packaging and/or security shall be observed carefully by the vendor, provided they have been expressed in time by the purchaser .
6.2 The packaging must comply with all relevant statutory rules and regulations, including in particular the statutory environmental regulations. In addition, the packaging must comply with the directives of the Packaging Agreement in force and other relevant agreements, if any.
6.3 The vendor shall strictly observe the instructions of the purchaser on the matter of preservation, affixing marks, forwarding, insurance of the transport risk and shipping documents ancillary to the consignment, etc..
6.4 Consignments that do not comply with the above-mentioned requirements of this article, may be rejected by the purchaser without any obligations on his part and without discharge from the vendor's obligation for proper performance and reimbursement, if any.
Art. 7 Transfer of ownership and risk
7.1 Unless, and in so far as stipulated otherwise in these general purchase conditions or in th agreement, the ownership of, and the risk for, the consignment shall be transferred to the purchaser upon factual delivery of the consignment to the purchaser at the place agreed upon. In the event of payments made before the delivery, transfer of ownership shall be effected to the purchaser at the moment of payment for the entire part of the goods paid. If these goods are part of a larger consignment, this transfer of ownership shall apply to the entire consignment. However, in that case the vendor shall bear the full risk, until factual delivery of the objects has been effected.
7.2 In the event of delivery of movable property in the case referred to in the second and third sentence of paragraph 1 referred to above, the vendor shall be deemed to hold the movable property in question for the purchaser from the moment of settlement .
7.3 Any commercial terms included in the contract, such as F.O.B., have been used in accordance with the definitions of the edition of the INCO terms that is in force on the date of formation of the agreement.
Art. 8 Delivery period
8.1 Performance of the agreement on the date(s) of delivery determined in the agreement shall be an essential obligation for the vendor.
8.2 If the vendor does not comply with the stipulation of paragraph 1 of this article, the purchaser shall be entitled, without further notice of default and without judicial intervention and without prejudice to his further rights, to dissolve the contract in its entirety, or with regard to the part not delivered in time, and to have it executed by a third party at the expense of the vendor.
8.3 The vendor shall, as soon as circumstances occur or are foreseeable because of which he cannot comply with the obligation as referred to in paragraph 1 of this article, inform the purchaser of this without delay in writing, thereby mentioning the nature of these circumstances, the measures to be taken by him and the probable term of the delay, in default of which he cannot invoke these circumstances at a later date anymore. A reliance on force majeure shall not be permitted to the vendor, if he has not met this obligation, all this without prejudicing the stipulations of paragraphs 1 and 2.
8.4 As point in time or delivery period the date or period recorded in the agreement shall apply, unless agreed upon otherwise in writing by parties. The points in time and periods referred to above shall be firm dates and ultimate dates, unless explicitly agreed upon otherwise in writing.
8.5 The delivery shall be effected carriage paid to the address specified by the purchaser and in default of which to the address where the purchaser has his registered office.
8.6 Unless explicitly agreed upon otherwise in writing over or under delivery or shortfall shall not be permitted. In the event of under delivery the supplier shall be obliged to reimburse the damage to be suffered by the purchaser as a result of that. In the event of over delivery the purchaser shall not be obliged to pay more than has been agreed upon.
8.7 Without prejudice to the stipulation in the article mentioned above and irrespective of all decisions of the purchaser with regard to full compensation for damages in the event of nondelivery or overdue delivery as referred to above, the vendor, in the event of overdue delivery, shall be obliged to pay a penalty of 2% of the transaction value with a minimum of ? 500,-- for each week or part thereof that the entire delivery agreed upon is overdue. This penalty can run up to 12% of the transaction value at most.
Art. 9 Indemnification
9.1 The vendor shall indemnify the purchaser against claims from third parties for defects of the objects delivered or to be delivered and resources used in the execution of the agreement, or against acts or omissions on the part of the vendor, his staff or other persons or parties involved in the execution of the delivery .
9.2 In the event that the Liability of Subcontractors Act (Wet ketenaansprakelijkheid) applies, the vendor shall further indemnify the purchaser from her liability with respect to the vendor or third parties pursuant to the noncompliance of the vendor with regard to obligations pursuant to the Liability of Subcontractors Act.
Art. 10 Prohibition on the assignment of Rights and obligations
10.1 The vendor shall not be allowed to transfer his rights and obligations arising from the agreement, nor in their entirety, nor partially, to third parties without previous written permission from the purchaser. In any case such permission shall have no effect on all the obligations ensuing from the agreement for the vendor. The vendor shall remain jointly and severally liable, also if transfer is permitted, in addition to the acquiring party, for the correct performance of the obligations ensuing from the agreement.
Art. 11 Dissolution and termination
11.1 The purchaser shall be entitled to dissolve the agreement, outside the cases arranged separately in these general terms and conditions, without further notice of default being required and without judicial intervention, either wholly or partially, and without being obliged to pay any damages, and under preservation of all his further claims, if:
a. the vendor imputably fails in the performance of one or more obligations pursuant to the agreement;
b. if a suspension of payment(s) is granted to the vendor;
c. if the vendor is declared bankrupt;
d. if the vendor's company is wound up.
12.1 Unless stipulated otherwise in the agreement, the price agreed upon shall be fixed and binding.
12.2 Payment shall be effected, unless explicitly agreed upon otherwise in writing and except for the stipulations mentioned hereafter, 60 days after receipt of the goods or services and the invoice related to them. If the delivery takes place in parts, the invoice shall be considered to have been received no sooner than the day after delivery of the latest part, unless it has been explicitly agreed that the delivery and the invoicing in connection with that is to be effected in parts.
12.3 The purchaser shall be authorized to set off pecuniary claims from the vendor on the purchaser with a ditto claim of the purchaser on the vendor.
Art. 13 Costs of legal assistance
13.1 If the purchaser is compelled to obtain legal assistance with a view to obtaining fulfilment of any obligations on the vendor's part within the framework of an agreement to which these terms and conditions apply, the vendor shall, in that case, be obliged to reimburse all actual cost with respect to the purchaser related to the legal assistance referred to above, including taking legal action, both judicially and extrajudicially, and also including the full fee of a lawyer;
Art. 14 Applicable law and competent court
14.1 Dutch law shall apply exclusively to all agreements concluded by the purchaser.
14.2 If the vendor is not domiciled or established in the Netherlands and/or the delivery to be effected by the vendor does not take place in the Netherlands, all stipulations of these general terms and conditions shall apply unimpaired.
14.3 If the vendor is not established in the Netherlands or if the vendor's principal place of business is not established in the Netherlands and/or the objects must not be delivered in the Netherlands, the applicability of the following shall be excluded explicitly:
a. Loi Uniform sur la Vente International 1964 (LUVI);
b. (United Nations) Convention on International Sale of Goods (CISG);
c. the stipulations of the Vienna Convention of 1 April 1980;
d. all other treaties possibly applicable to the Netherlands;
e. the implementation legislation prevailing in the Netherlands based on the treaties referred to above,
all this if and in so far as the stipulations of the treaties and statutes in question deviate from one or more stipulations of these terms and conditions.
14.4 All disputes that cannot be solved in mutual consultation shall be subject to the judgment of the competent court at Roermond (the Netherlands), unless this is in contravention of any mandatory legal provision;
14.5 In derogation of the fourth paragraph, in the event that a dispute falls within the competence of the subdistrict court, the plaintiff shall be entitled to commence proceedings at the court designated by law;
14.6 The purchaser shall always remain entitled to summon the vendor to appear in court in accordance with the law or the applicable international treaty.
Art. 15 Authentic text
15.1 In case of any difference between the Dutch text of these standard terms and conditions and the text in another language, the Dutch text shall apply exclusively as authentic and shall prevail over the text of the other language.
