TERMS AND CONDITIONS

 

OF:

Sany Royal

Stratumsedijk

Eindhoven, the Netherlands

 

hereinafter to be referred to as: user

 

Article 1  Definitions

In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.

User: the user of the general terms and conditions;

Consumer: an opposite party being a natural person who does not act in the course of a business or in the course of a profession;

Agreement: the agreement between the user and the consumer;

Consumer purchase: the agreement of sale concerning a movable thing concluded by a seller acting in the course of a profession or a business, and a consumer being a natural person, who does not act in the course of a profession or business.

 

Article 2 General

1.    The present terms and conditions shall apply to each and every offer, quotation and agreement               
       between user and a consumer, to which user has declared the present terms and conditions       
       applicable, insofar as parties have not explicitly deviated from the present terms and conditions in
       writing.

2.    The present terms and conditions shall also apply to agreements with user, the execution of       
       which calls for the services of third parties.

3.    Possible deviations from the present general terms and conditions shall only be valid provided       
       they have been explicitly agreed upon in writing.

 

Article 3 Offers and Tenders

1.    All offers and tenders shall be free of obligation and shall be made in one written form or other,       
       unless user forgoes a written offer for practical, urgent or other reasons. The offer shall bear a      
       date, or shall provide the possibility to be determined according to the date.

2.    User shall only be bound by offers and quotations if the consumer accepts such, preferably in    
       writing, within 15 days. The prices given in an offer or quotation shall include VAT, unless
       indicated otherwise.

3.    It shall not be possible to bind user to his offers and quotations if the consumer should have                        
       understood in accordance with the requirements of reasonableness and fairness and according to
       the usual criteria in social and economic life that the offer or quotation, or part thereof, obviously       
       contains a mistake or an error in writing.

4.    If the acceptance deviates (on secondary items) from the offer given, user shall not be bound by                 
       it. The agreement shall in such event not be concluded in accordance with said deviating                  
       acceptance, unless user indicates otherwise.

5.    A compound quotation shall not oblige user to deliver part of the goods contained in the offer or   
       quotation against a corresponding part of the given quotation.

6.    Offers and tenders shall not apply automatically to repeat orders.

 

Article 4 Conclusion of the Agreement

The present agreement shall be concluded through the timely acceptance by the consumer of user's offer.

 

Article 5 Delivery

1.    Unless agreed upon otherwise, delivery will take place on C.O.D. (cash on delivery) conditions.

2.    The consumer shall be held to take delivery of the purchased goods the moment said goods are  
       at his disposal or handed over to him.

3.    If the consumer refuses to take delivery of the purchased goods or fails to give the information or           
       instructions necessary to their delivery, the goods destined for delivery shall be stored at the       
       consumer's risk following notification of the consumer by user. In said event, the consumer shall   
       owe all additional costs.

4.    Upon reception of the goods, the user retains the right to separately charge handling costs,
       administration costs and transport costs, unless agreed upon otherwise.

5.    If delivery in stages has been agreed upon, user can suspend the execution of the parts       
       belonging to a following stage until the consumer has approved in writing the results of the stage  
       prior to it.

6.    If, in the framework of the execution of the agreement, user requires data to be given by the             
       consumer, the term of delivery shall commence after the consumer has provided user with said                        
       data.

7.    If user has given a term of delivery, it shall only be indicative. A given term of delivery shall
       therefore never constitute a term to be observed on penalty of forfeiture of rights. The final term of
       delivery shall, however, never exceed the given term of delivery by more than four week, unless                     
       there is a matter of "force majeure". If the term of delivery is exceeded, the consumer must give
       user notice of default in writing.
8.    User will charge the consumer for handling- and transport costs if the goods will be returned.

 

Article 6 Guarantee

1.    User shall guarantee that the goods to be delivered shall meet the usual requirements and     
       standards that can be set for and made upon them and that they shall be free of any defect            
       whatsoever.

2.    The guarantee mentioned under 1 shall equally apply if the goods to be delivered are destined for
       use abroad and if the consumer explicitly informed user of this use in writing the moment the  
       agreement was entered into.

3.    The guarantee mentioned under 1 shall be valid for a period of 12 months following delivery.

4.    User shall give the consumer a written certificate of guarantee. In the absence thereof, the note of
       purchase shall serve as proof with respect to the guarantee.

5.    If the good to be delivered does not comply with said guarantee, user shall, at his discretion,      
       replace or see to the repair of the good, within a reasonable period of time following receipt       
       thereof, or, if the good cannot be returned in reason, following notification of the defect by the  
       consumer. In the event the good is replaced, the consumer shall already now undertake to return   
       the replaced good to user and to transfer ownership of it to user.

6.    The guarantee mentioned for this purpose shall not apply when the defect originated as the result
       of injudicious or improper use or when the consumer or third parties have introduced changes or   
       tried to introduce changes to the good without user's consent in writing or if they have used it for
       purposes for which the good was not intended.

7.    In case the delivered good does not comply with the agreement and this non-conformity is a defect as
       mend in the product-liability rules, the user is not liable for any consequential damage resulting from the
       defect.

8.    All that is stated in these general terms and conditions about guarantee, has no effect on the guarantees
       of the consumer by reason of the law, everything with due observance of the provisions set out in these
       general terms and conditions and in the agreement, including the nature and quality of which is sold and
       delivered to the consumer.

 

Article 7 Samples and Models

If user has shown or given the consumer a sample or model, the good shall correspond with it, unless the showing happened or the sample was given by way of indication.

 

Article 8  Retention of Title

User shall remain the full owner of the delivered good until the purchase price has been paid in full.

 

Article 9  Inspection & Complaints

1.    The consumer shall be held to inspect the delivered goods (to have the delivered goods        
       inspected) the moment of delivery (handing over), but in any case in as short a period of time as      
       possible. In this respect, the consumer must examine whether the quality and the quantity of the          
       delivered goods comply with what was agreed upon, or at least whether they meet the                 
       requirements applying to said goods in normal (business) transactions.

2.    Possible visible shortcomings must be communicated in writing to user within three days following
       delivery and this together with the simultaneous submission of the certificate of guarantee and the
       defect good, unless the latter is impossible or unreasonably onerous.

3.    The consumer must inform user of a non-visible defect within 8 days following its detection, but in       
       any case before the guarantee period expires, observing the stipulations of the previous                  
       paragraph of the present article. When the guarantee period has expired, user shall be entitled to    
       charge the consumer for all repair or replacement costs, including administration and shipment                 
       costs as well as call-out charges.

4.    If in accordance with the previous paragraph, the consumer files his complaint in due time, he   
       shall still be held to take delivery and effect payment of the goods purchased. If the consumer          
       wishes to return defect goods, he shall do so following prior consent in writing from user.

 

Article 10 Transfer of Risk

The risk of loss of, or damage to the products being the subject of the agreement, shall be transferred to the consumer the moment said products are judicially and/or actually delivered to the consumer and therefore fall into the power of the consumer or of third parties to be appointed by the consumer.

 

Article 11  Price Increase

1.    If user agrees upon a certain price with the consumer the moment the agreement is concluded,              
       user shall nevertheless be entitled to increase the price, even in the event that the initial price was
       not given subject to approval.

2.    If a price increase takes place within the first three months following the conclusion of the      
       agreement, the consumer can dissolve the agreement with a written statement regardless the          
       percentage with which the price was increased, unless

       -    the increase is the result of a power given to the user by law

       -    the user is obligated to increase the price by (virtue of) law.

       -    it is stipulated that delivery will take place more than three months after parties have entered            
            into the contract.

 

Article 12  Payment

1.    Unless agreed upon otherwise, payment must be made net cash upon delivery.

2.    If payment is not made in cash, it must be effected within 14 days from the date of invoice, in a             
       way to be indicated by user and in the currency in which the goods were invoiced.

3.    Contestation of the amount of the invoices shall not suspend the fulfilment of the payment         
       obligation.

4.    After the expiry of 14 days from the date of invoice, the consumer shall be in default by operation  
       of law; commencing on the moment the consumer is in default, he shall owe an interest of 1% per
       month on the  amount due and payable, unless the statutory interest rate is higher, in which case                       
       the statutory interest rate shall apply.

5.    User's claims and the consumers obligations vis à vis user shall become due on demand in the       
       event of bankruptcy, suspension of payment or curator ship.

6.    User shall be entitled to have the payments made by the consumer go first of all to reduce the   
       costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the            
       current interest. User shall have the right, without this leading user to be in default, to refuse an  
       offer for payment, if the consumer designates a different sequence of attribution. User shall be                   
       entitled to refuse full payment of the principal sum, if said payment does not include the interest   
       still due, the current interest and the costs.
7.    For every order we ask you an advanced payment of 20%, with a minimum of Euro 50. As soon
       as the advanced payment is on our bank account we will proceed with the order.

 

Article 13 Suspension and Dissolution

1.    User shall be authorised to suspend the fulfilment of the obligations under the agreement or to    
       dissolve the agreement, in the event that:

       -    consumer does not fulfil or does not fully fulfil his obligations resulting from the agreement

       -    after the agreement has been concluded, user learns of circumstances giving good ground to         
            fear that the consumer will not fulfil his obligations. If good ground exists to fear that the             
            consumer will only partially or improperly fulfil his obligations, suspension shall only be allowed
            in so far the shortcoming justifies such action.

       -    consumer was asked to furnish security to guarantee the fulfilment of his obligations resulting
            from the agreement when the contract was concluded and that this security is not provided or               
            insufficient.

2.    User shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) if
       circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can     
       no longer be demanded in accordance with the requirements of reasonableness and fairness, or              
       if other circumstances arise of such a nature that the unaltered maintenance of the agreement               
       can no longer be demanded in all reasonableness.

3.    If the agreement is dissolved, the user's claims against the consumer shall be forthwith due and      
       payable. If user suspends fulfilment of his obligations, he shall retain his rights under the law and     
       the agreement.

4.    User shall always retain the right to claim damages.

 

Article 14  Collection Charges

1.    If the consumer fails to fulfil one or more of his obligations or defaults on one or more of them, then all
       reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the consumer. If
       the consumer remains in default of payment within the set time period, he forfeits a immediately payable
       fine of 15% on the amount due at that moment.
       This with a minimum of Euro 50.

2.    If user demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses
       shall also qualify for reimbursement.

3.    The reasonable judicial and execution costs possibly incurred shall equally be borne by the        
       consumer.

4.    The consumer shall owe interest for the made collection charges.

 

Article 15 Safeguarding

1.    The consumer shall safeguard user against claims filed by third parties concerning intellectual               
       property rights on material or data provided by the consumer, which shall be used for and during                     
       the execution of the agreement.

2.    If the consumer provides user with information carriers, electronic files or software etc., the former
       shall guarantee that said information carriers, electronic files or software are free of viruses and    
       defects.

 

Article 16 Intellectual Property and Copyrights

1.    Without prejudice to the other stipulations of the present general terms and conditions, user shall                       
       reserve the rights and authorities to which user is entitled under the Copyright Act.

2.    The consumer shall not be allowed to introduce changes to the goods and material provided,     
       unless the nature of the delivered goods and material dictates otherwise or if agreed upon          
       otherwise in writing.

3.    The designs, sketches, drawings, films, software and other material or (electronic) files, possibly                  
       produced by the user within the framework of the agreement, shall remain user's property,                 
       irrespective of the fact whether they have been handed over to the consumer or to third parties,     
       unless agreed upon otherwise in writing.

4.    All documents, such as designs, sketches, drawings, films, software, (electronic) files, etc.,       
       provided by user, shall be destined to be used by consumer exclusively and must not be                     
       reproduced, made public or brought to the notice of third parties by consumer without prior                        
       consent from user, unless the nature of the documents provided dictates otherwise.

5.    User shall reserve the right to use the knowledge gained due to the execution of the work for   
       other purposes, in so far no confidential information shall be brought to the notice of third parties          
       when doing so.

 

Article 17  Liability

1.    If the goods delivered by user are defective, user's liability vis à vis the consumer shall be limited                     
       to the arrangements made in the present terms and conditions under "Guarantee".

2.    When the producer of a defective good is liable for consequential damage, the user's liability shall
       be limited to repairing or replacing the defective good, or to returning the purchase price.

3.    Without prejudice to the above, user shall not be liable if the damage is attributable to intentional               
       act or omission and / or gross negligence and / or imputable actions, or to injudicious or improper                  
       use on the part of the consumer.

4.    The limitations of liability for direct damage contained in the present terms and conditions shall        
       not apply if the damage is due to intentional act or omission or gross negligence on the part of    
       user or his subordinates.

 

Article 18  Force Majeure

1.    Parties shall not be held to fulfil any of their obligations if they are obstruct to do so due to a         
       circumstance through no fault of their own and which cannot be attributed to them by virtue of   
       law, a legal action or generally accepted practice.

2.    In addition to the provisions of the law and the judge-made law in this respect, force majeure shall
       in the present general terms and conditions furthermore be understood to be any external                   
       circumstance, be it envisaged or not, on which user cannot have any influence but which prevents
       user from fulfilling the obligations. Industrial action at user's company shall also be understood to      
       be a circumstance of force majeure.

3.    User shall also be entitled to invoke force majeure if the circumstance rendering (further)     
       fulfilment of the obligation(s) impossible, commences after the point in time on which user should             
       have fulfilled his obligation.

4.    Throughout the duration of the circumstances of force majeure, parties shall be entitled to    
       suspend the fulfilment of their obligations. If this period lasts for more than two months, either of                   
       the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite  
       party damages.

5.    Insofar user has already parially fulfilled his obligations resulting from the agreement at the      
       moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar      
       separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, user                        
       shall be entitled to separately invoice the part already fulfilled or still to be fulfilled respectively.
       The consumer shall be held to pay this invoice as if it were a separate agreement.

 

Article 19  Disputes

1.    The Court in user's place of business shall have exclusive jurisdiction to hear actions, unless the               
       District Court is the competent Court. User shall nevertheless be entitled to submit the dispute to                
       the Court deemed competent by the law.

2.    Parties shall only refer the matter to the court if they have done their utmost to solve the dispute                    
       in mutual consultations.

 

Article 20  Applicable Law

Dutch law shall apply to each and every agreement between user and the consumer. The Vienna Sales Convention shall be explicitly excluded.

 

Article 21  Changes to the Terms and Conditions, interpretation and their location

1.    The present terms and conditions have been filed at the office of the Chamber of Commerce           
       in Eindhoven.

2.    The Dutch version of these general terms and conditions prevails at all time in case of disputes                  
       with regard to the interpretation and purpose of these terms and conditions.

3.    The most recently filed version shall always apply, or, the case ensuing, the version valid at the       
       time the agreement was concluded.

 

I.A. Pesuwarissa, general manager
Sany Royal b.v.