Standard terms and conditions of sale 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 terms and conditions of sale of the private company with limited liability Mush. Comb. B.V., having its registered office and principal place of business at Horst (the Netherlands).
1.2 These standard terms and conditions shall apply to all agreements in which Mush. Comb. B.V. shall act as vendor (both of objects/goods and of services). Mush. Comb. B.V. will be referred to as "vendor" hereinafter.
1.4 Each natural person or each legal person who purchases objects and/or services from vendor, shall be referred to as "purchaser" hereinafter.
1.5 A reference by the purchaser to his own terms and conditions shall not be accepted by the vendor and shall therefore, not apply, unless accepted in writing by the vendor.
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 effect of the other stipulations.
Art. 2 Offer and acceptance
2.1 All offers made by the vendor shall be without engagement, unless explicitly agreed upon otherwise in writing. The offers can based on the data and information provided by the purchaser with the enquiry. If it appears that the data and information provided by the purchaser for the benefit of the offer is incomplete and/or incorrect, this shall be for the account and risk of the purchaser.
2.2 If an offer or a quotation contains a term for acceptance, the vendor shall have the right to revoke the offer two working days after receipt of the acceptance.
2.3 If so desired, the purchaser may inspect the objects to be supplied, before accepting the offer, at a location to be determined by the vendor. The term within which the objects in question may be inspected, shall end two weeks after the offer has been made by the vendor.
2.4 Acceptance must be effected by written notification to the vendor, under simultaneous settlement of at least 40% of the purchase price agreed upon.
2.5 For the formation of the contract the purchaser cannot enforce any rights whatsoever with respect to the vendor, unless the law provides otherwise.
Art. 3 Prices
3.1 All prices included in price lists, leaflets and the like shall count as recommended prices and shall not be binding to the vendor.
3.2 All prices included in offers and quotations shall be valid for two months after the date of the offer or quotation in question, unless explicitly indicated otherwise by the vendor.
3.3 The vendor shall be authorized to adjust the price agreed upon to interim, cost price increasing factors, including an increase in the cost price of raw materials, materials, manufacture, transport, increase of foreign currency exchange rates and the like, if, between the formation of the contract and the date of delivery of the tasks/services to be delivered pursuant to that agreement, there is a period of three months or longer.
3.4 All prices offered shall be valid for deliveries "ex warehouse in the Netherlands", unless explicitly agreed upon otherwise in writing.
Art. 4 Settlement
4.1 All payments must be effected by giro, unless explicitly agreed upon otherwise in writing.
4.2 The purchase price or the unpaid part thereof shall be immediately due and payable from the moment of delivery of the objects purchased, subject to the condition that the claim shall be due and payable at the latest two weeks after date of delivery, unless, and in so far as agreed upon otherwise in writing.
4.3 Exceeding the term of payment referred to in article 4.2 shall make the purchaser liable to pay damages with respect to the vendor without a notice of default being required to this end. In the event that the term of payment referred to above is exceeded the purchaser shall be obliged to pay an interest payment on the principal sum of 1½ % per month. If the purchaser fails to fulfil his payment obligation with respect to the vendor or, as the case may be, has failed to fulfil his payment obligations, the vendor shall be entitled to take legal action, including the recovery of damage. The purchaser shall be obliged with respect to the vendor, to reimburse all costs actually incurred in connection with the (judicial) measures referred to above, both judicial and extrajudicial, including the full fee of a lawyer;
4.4 The purchaser shall not be permitted to set off the debt to the vendor in any way with respect to any of the purchaser's claims on the vendor, or with any other claim.
4.5 The entire, remaining claim of the purchaser on the vendor shall be forthwith due and payable in the event of winding-up, insolvency, petition for suspension of payment, bankruptcy and transfer of ownership of the purchaser's enterprise.
4.6 Unless explicitly stated otherwise, the prices stated are in euros. If currency damage occurs on the part of the vendor as a result of nonpayment, the purchaser shall be obliged to reimburse this in full. In that event the starting point shall be the exchange rate of the foreign currency in which the purchase agreement has been concluded in comparison to the euro.
4.7 If a different foreign currency is mentioned in the agreement concluded, the vendor shall have the right, in case of a decrease in value of the foreign currency in question in comparison to the euro of 3% or more at the moment of payment in comparison to the moment of formation of the agreement, with respect to the purchaser, to a supplementary settlement by way of compensation of the disadvantage arisen in that way. The purchaser shall be obliged to pay such compensation to the vendor within two weeks after having received a request to this end. When determining the exchange rates the starting point shall be the official purchase rate of the foreign currency in question listed on the stock exchange, on the date of formation of the agreement and the date of settlement of the price agreed upon, respectively.
Art. 5 Delivery
5.1 Delivery shall be effected "ex warehouse in the Netherlands", unless explicitly agreed upon otherwise in writing.
5.2 After crediting the payment referred to in 2.4 into the giro/bank account designated by the vendor factual delivery shall take place after mutual consultation between the vendor and the purchaser.
5.3 The objects concerned shall be delivered in the condition in which they are when the purchaser was in a position to inspect the objects.
5.4 Delivery dates agreed upon shall never be considered as a firm date, unless explicitly agreed upon otherwise in writing.
5.5 In the event of overdue delivery the purchaser must declare the vendor to be in default.
5.6 The vendor shall be authorised to deliver orders in parts.
Art. 6 Retention of title
6.1 Upon delivery of the objects in question the vendor shall retain ownership of those objects. This retention of title shall apply: a. to the full purchase price of the agreement pursuant to which the tasks/services in question have been delivered; b. to claims on account of failure to perform the agreement on the purchaser's part pursuant to which the tasks/services in question have been delivered.
Art. 7 Transport
7.1 Unless explicitly agreed upon otherwise in writing, the transport of the objects shall be for the purchaser's account and risk.
7.2 Return shipments of goods, also in the event that the vendor has agreed to that, shall be effected for the account and risk of the purchaser until the moment when the objects in question are actually received by the purchaser.
7.3 The purchaser shall grant the vendor full indemnity for claims, if any, of the carrier with respect to the vendor ensuing from and/or in connection with an agreement between purchaser and vendor.
7.4 If the agreement is dissolved and/or the vendor relies on the retention of title to which he is entitled and the objects delivered must be returned to the vendor for that reason, the costs in connection with that shall be entirely for the account of the purchaser. This claim shall immediately be due and payable, whereas the vendor shall be entitled to set off the costs in connection with this with the part of the purchase price, if any, that is still in his possession.
Art. 8 Complaints and guarantee
8.1 Complaints about the objects delivered to the purchaser must be reported in writing within ten days after delivery of the objects by means of registered letter, under penalty of expiry of all claims pursuant to a failure, if any, in the fulfilment on the vendor's part.
8.2 The purchase shall also lose his claims referred to in 8.1, if any, if the objects delivered have been processed, treated or used in any way by the purchaser.
8.3 Complaints shall only be allowed by the vendor if and in so far as the object delivered does not meet the qualities and characteristics possessed by the objects mentioned during the period when the purchaser was in a position to inspect these objects, prior to the acceptance thereof.
8.4 If the road waybill has been signed for receipt without a specification that receipt has taken place subject to approval or under protest, stating the reason thereof, the purchaser may never lodge a complaint with the vendor in connection with damage caused to goods in transit and/or in connection with underdelivery of products/packages.
8.5 In the event of a complaint honoured by the vendor as referred to in 8.1 up to and including 8.4, the vendor shall be entitled to deliver the objects in question again or to repair them - or have them repaired - or to pay a reimbursement by way of compensation of the loss. This reimbursement shall never amount to more than the invoice amount exclusive of VAT of the objects in question.
8.6 The purchaser may, with respect to the vendor, never lay claim to a higher or other reimbursement in the cases referred to in articles 8.1 up to and including 8.5, than is stated in article 8.5.
8.7 Slight deviations in colour and/or finishing can never be a reason for judgments against the vendor.
8.8 The purchaser shall be obliged to carry out small repair work and adjustments himself, without this giving rise to exercising any claim against the vendor in this respect.
Art. 9 Liability
9.1 Except for intentional act or omission or conscious recklessness the vendor shall not be liable for damage inflicted to the purchaser of the objects delivered or to third parties, either by an error of one or more employees of the vendor or third parties for which the vendor is liable, or because of a defect or faultiness of the tasks/services delivered, or because of any other cause, all this in so far as the damage which is a result of that is larger than the amount of excess of the sale on the basis of the liability insurance taken out by the vendor. If the liability in question has not been insured by the vendor and this cannot be required from the vendor in reasonableness each liability on the part of the vendor shall be excluded on that account.
9.2 If and in so far as the liability insurance taken out by the vendor should not, in some case in which damage has arisen as referred to above, pay out pursuant to the contract of insurance in question, the vendor's liability shall be restricted to 25% of the invoice amount with a maximum of ? 25,000,--.
9.3 The purchaser shall indemnify the vendor for damage claimed by third parties with respect to tasks or services delivered by the vendor to the purchaser.
Art. 10 Force majeure
10.1 A failure in the fulfilment of an obligation cannot be attributed to the vendor if that failure, either wholly or partially, is due to force majeure.
Force majeure shall considered to be between parties, among other things:
- a situation of war, threat of war, revolt, riots and the like;
- acts of God, including earthquakes, volcanic eruptions, floods and the like;
- as well as government measures and strikes on account of which impediments
occur in the chain of production and/or distribution for the objects referred to in this document with regard to the transfer of title of objects referred to in this document.
10.2 In the event of temporary or permanent impossibility of performance as a result of force majeure as referred to above, the vendor shall be entitled to dissolve the agreement by means of a written statement. In such a case the purchaser shall not be entitled to any reimbursement whatsoever.
Art. 11 Peremptory time limit
11.1 The possibility of instituting an action or submitting any dispute by the purchaser with regard to or as a result of the agreement between parties, shall become null and void after the lapse of one year after the occasion that gave rise to it has come into being.
Art. 12 Applicable law and competent court
12.1 Dutch law shall apply to all agreements concluded by the vendor.
12.2 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.
12.3 In derogation of the second paragraph, in the event that a dispute falls within the competence of the subdistrict court, the plaintiff shall be entitled to commence proceedings in the court designated by law.
12.4 The vendor shall always remain entitled to summon the purchaser to appear in the court of competent jurisdiction in accordance with the law or the applicable international treaty.
12.5 If the purchaser 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.
Art. 13 Judicial stipulations applying internationally
13.1 If the purchaser is not established in the Netherlands or if the purchaser'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 implementation acts shall be excluded explicitly:
- Loi Uniform sur la Vente International 1964 (LUVI);
- (United Nations) Convention on International Sale of Goods (CISG);
- all other treaties possibly applicable to the Netherlands;
- 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 deviate from one or more stipulations of these standard terms and conditions.
Art. 14 Authentic text
14.1 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 and prevail over the text of the other language.
