General terms and conditions of sale
1 Scope of application, Exclusion
1.1 All deliveries, services and offers of Incotech BV (“Seller”) are based exclusively on these General Terms and Conditions of Delivery. These General Terms and Conditions are part of all contracts the Seller enters into with its contracting partners (“Client”) for the goods and services it offers. They also apply to all future deliveries, services or offers to the Client, even if they are not expressly agreed upon once more.
1.2 The General Terms and Conditions of the Client or of any third parties shall not apply, even if the Seller should not specifically object to their application in the individual case concerned. Even if the Seller makes reference to a letter which includes or refers to the General Terms and Conditions of the Client or of any third party, this shall not be deemed agreement to the application of such General Terms.
2 Offer, Acceptance, Written form, Right of modification, Retention of rights, Confidentiality, Legal requirements
2.1 Unless specifically indicated otherwise, all offers of the Seller are subject to confirmation and non-binding. All offers of the Seller lapse and cease to be available for acceptance after 30 days. All orders for goods or services shall remain open for acceptance by the Seller for a period of 14 days from the date of receipt. Acknowledgement of receipt by the Seller shall not be deemed acceptance unless acceptance is expressly stated in the acknowledgement.
2.2 Contracts are concluded through Seller´s confirmation of Client’s order; such confirmation shall be in written form or in text form (including e-mail). In the absence of such order confirmation a contract is concluded upon Client’s acceptance of deliveries and services at the latest, whereby such contract shall be determined by these Terms and the Seller’s offer.
2.3 The legal relationships between the Seller and the Client shall be governed exclusively by the contract of sale to be entered into in writing, including these General Terms and Conditions of Delivery. This contract shall constitute the entire agreement and understanding between the Parties in respect of the subject matter of the contract. Oral commitments made by the Seller before the contract is made are legally non-binding, and any oral agreements between the Parties shall be replaced and superseded by the written contract, unless they expressly state that they are intended to remain binding.
2.4 Changes and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be valid. Employees other than the managing directors or authorized officers of the Seller shall not be authorized to make any deviating agreements orally. The requirement of written form shall be deemed to be complied with if the communication concerned is transmitted by means of a telecommunication system, including, without limitation, by email, provided that a copy of the document must be transmitted.
2.5 All information provided about the goods to be delivered or the services to be provided (e.g. weights, dimensions, use values, load capacities, allowances, technical data, etc.) and visualizations of them (e.g. by drawings and pictures) shall be approximate only, unless their usability for the intended contractual purpose requires exact information. They do not constitute guaranteed conditions or qualities but are provided to describe or identify the goods or services to be supplied. Variations within usual commercial limits and variations made to comply with statutory requirements or which constitute technical improvements, as well as the replacement of components by equivalent components shall be permitted, provided that usability for the intended contractual purpose must not be compromised. All statements regarding the RoHS compatibility of products, compliance with the REACH regulation and non-use of conflict-affected resources as raw materials in the items sold and other legal product requirements are based on the information provided by the respective manufacturer. Seller does not warrant the accuracy and completeness of such information, and any liability for inaccuracy or incompleteness of such information shall be limited to the scope specified in § 9.
2.6 The Seller reserves title or comprehensive rights and all rights of exploitation in all offers and cost estimates it submits and in all drawings, pictures, calculations, brochures, catalogues, models, tools and other documents and materials as well as all data, expertise and know-how of the Seller made available to the Client. The Client shall not make those items themselves or their substance accessible to any third parties, or publish or use or reproduce them itself or through any third parties, without the express consent of the Seller. At the request of the Seller, the Client shall fully return all of these items to the Seller and destroy any copies it may have made of them if it no longer needs them in the ordinary course of business or if negotiations do not result in a contract. This shall not apply, however, to the storage of information supplied in digital format for the purpose of routine data backups.
2.7 Upon Seller´s request the Client will provide all necessary details for the fulfillment of legal requirements. (e.g. EU entry certificate, CE labeling, Reach, RoHs, etc.). It is within Client’s responsibility to comply with export and import conditions and restrictions and Client will upon Seller´s request provide all necessary information in this context; in case of a violation of such conditions and restrictions by Client, the Client will indemnify the Seller from all claims and sanctions.
3 Prices, Payment terms, Default of Payment, Price Adjustment, Right to Offset, Right of Retention
3.1 All prices stated shall apply to the scope of goods and services specified in the respective order acknowledgement. Any additional or special services shall be charged extra. All prices are in euros, ex works, excluding packaging, exclusive of VAT at the applicable statutory rate, and, in the case of export shipment, exclusive customs, fees and other public charges.
3.2 The prices stated in the Seller’s offers are based on the cost calculations at the time the offer is made. If Seller renders its performance not earlier than four months after conclusion of the contract date, the Seller shall be entitled to make a reasonable adaptation of his selling price, in the event of a substantial increase or reduction in the prime cost (especially labor and material cost) that has been taken as the quotation basis. A change of prime cost as defined by sentence 3 is particularly given, if there is an increase in prices for labor or procured goods or materials without fault of Seller or if customs duties or other import charges increase or in cases of considerable changes in the parity of exchange rates to the Seller’s disadvantage compared with the circumstances prevailing at the date of contract conclusion. A price adaptation due to cost increase is deemed to be reasonable if and to the extent the adaptation remains within the scope of the increase in costs. At Client’s request, the Seller shall demonstrate the reasons for the price adaptation. If the price adaptation results in an price increase of more than 20%, and if the Seller does not comply with Client’s request to limit the price adaptation to a scope of 20% within two weeks’ time, the Client shall be entitled to declare avoidance of the contract without further claims of Client. Such declaration of avoidance shall be declared immediately.
An additional fee can be applicable to the Contract in the following situations:
– Transport term DDP/Franco and total Contract value < 125,00: € 35,00 small Order cost- and shipping fee.
– Transport term DDP/Franco and total Contract value > € 125,00 – < € 250,00: € 12,50 shipping fee.
3.4 Prices are due immediately with conclusion of the contract; complete delivery of goods, documents and services is no condition for payment. Unless otherwise agreed (for example prepayment) the net price is payable within 30 days from the date of invoice without deduction, otherwise Client is in default with payment. Objections of any kind in respect of the invoice must be submitted within 14 days after receipt of the invoice, otherwise the invoice is deemed accepted. If the Client fails to make payment when due, the outstanding amounts shall bear interest at 8% p.a. from the due date; this shall be without prejudice to the right to claim higher interest and further damage in the event of default.
3.5 Offset against any counterclaims of the Client or retention of payments on the ground of such claims shall only be permitted if the counterclaims are uncontested or have been determined by final and non-appealable judgement and are based on the same contractual relationship.
3.6 If Client is in default with payment, the Seller shall be entitled to reimbursement of reminder costs and, without prejudice to further rights and claims, to demand default interest at 8% per year. If, after acceptance of the contract, the Seller learns of any circumstances which are capable of materially affecting the creditworthiness of the Client and which jeopardize payment by the Client of the amounts outstanding to the Seller under the contract concerned (including under other individual orders based on the same framework contract), the Seller shall have the right to make any outstanding deliveries, or provide any outstanding services, only against advance payment or provision of security.
4 Delivery, Terms of Delivery, Default in Delivery, Reservation of Self Supply, Non-performance, Force Majeure, Impossibility, Additional Period of Time
4.1 All deliveries shall be ex works.
4.2 Client will provide the Seller with forecasts to ensure that the Seller can prepare for potential future orders.
4.3 Deliveries ex works are fulfilled with the provision of goods so that they are ready for collection by the Client. If the Seller´s employees load transport-vehicles of the Client with such goods, they are deemed to act as vicarious agents of the Client and Seller may invoice the costs to Client.
4.4 All dates and deadlines indicated by the Seller with respect to the delivery of goods and services shall be approximate only, unless a fixed date or deadline has been expressly promised or agreed. In the event that goods have been agreed to be shipped, the delivery dates and deadlines shall refer to the date of handover to the forwarder, carrier or other third party instructed to transport the goods.
4.5 In the event of non-delivery or delayed delivery by his own suppliers, the Seller shall not be in default towards the Client if he is not responsible for the non-delivery or delayed delivery by his own suppliers, in particular if he has concluded a concrete covering transaction and his supplier has not delivered to him or has not delivered on time. If it is certain that a self-supply with ordered goods does not take place for reasons for which the Seller is not responsible, both parties may declare avoidance of the contract. In such a case, the Seller shall immediately inform the Client of the non-availability of the goods to be delivered and shall immediately reimburse the Client for any payments made in return. Possible statutory rights of avoidance shall remain unaffected.
4.6 Unless otherwise agreed, potential terms of delivery do not commence before all necessary documents to be provided by Client have been received by Seller and all technical and business questions have been solved between the Parties. Furthermore, the term of delivery is conditioned by the provision of necessary public certificates and authorizations and/or prepayments (either agreed or requested in accordance with these Terms) of the Client, and/or the Client´s fulfilment of its cooperation duties. Notwithstanding any rights the Seller may have based on default of the Client, the Seller may ask the Client for an extension of deadlines for deliveries and services, or for dates of delivery or service provision to be postponed by the period during which the Client fails to comply with the contractual obligations it owes to the Seller.
4.7 The Seller shall not be liable in the event that delivery of the goods is impossible or delayed due to force majeure or other events that could not be foreseen at the time when the contract was entered into (e.g. any kind of disruptions in operation, difficulties in the supply of materials and energy, delays in transport, strike, lawful lock-out, shortage of labor, energy or raw materials, difficulties in obtaining necessary authority approvals, administrative measures or suppliers’ failure to deliver at all, or properly or in a timely manner) and for which the Seller is not responsible. If such events make delivery or provision of the services significantly more difficult or impossible for the Seller and the impediment is not only temporary, the Seller shall have the right to declare avoidance of the contract. In the event of temporary impediments, the deadlines for deliveries and services shall be extended, or the dates of delivery or service provision shall be postponed by the duration of the impediment plus a reasonable warm-up time. If, as a consequence of the delay, the Client can no longer be reasonably expected to accept the delivery or services, the Client shall have the right to declare avoidance of the contract without undue delay by written notice to the Seller.
4.8 The Seller shall have the right to deliver in instalments only if
(a) the instalment delivery can be used by the Client for the intended contractual purpose,
(b) delivery of the remaining goods ordered is ensured and
(c) the Client incurs neither material additional effort nor additional costs as a result thereof (unless the Seller agrees to bear such costs).
4.9 If the Seller is in default with a delivery of goods or services, or if delivery or service provision becomes impossible for it for whatever reason, the liability of the Seller for damages shall be limited in accordance with the provisions of § 9 of these General Terms and Conditions of Delivery. This shall be without prejudice to the exclusion of liability under § 4 (7).
4.10 Statutory provisions that require the Client to grant Seller an additional and reasonable period of time remain unaffected by these Terms. A reasonable additional period of time shall be at least half of the original term of delivery and not less than 20 business days. In cases of imminent danger (urgent cases to the threat to operational safety or to prevent disproportionate damage) the additional period of time must consist of 10 business days at least.
5 Default in Acceptance
5.1 For the duration of any default by Client in accepting delivery (including late call-off of any delivery and execution of Seller’s right to suspend deliveries due to non-payment or substantial deterioration of the financial circumstances of the Client) Seller, without prejudice to its further rights and remedies, may place the deliverables in storage at Client’s expense; Seller may also commission a forwarding agent for this purpose. If goods are stored by the Seller, the costs of storage shall be 0.25% of the invoice amount for the deliverables to be stored per full week of storage. The right to claim additional storage costs, or to prove that the storage costs actually incurred were lower, is reserved. In addition to that, the Seller is entitled to compensation for other necessary additional costs (such as insurance premiums) as actually incurred and retain delivery until payment; further legal rights of the Seller remain unaffected.
5.2 Seller may also require Client to accept (or call off) a delivery and grant a reasonable additional period of time or exercise rights for non-performance; without prejudice to the foregoing, Seller may after expiry of the additional period of time declare the contract avoided and claim fixed damages in the amount of 25% of the price of the goods whose delivery has not been accepted/called off, while Client reserves the right to prove that Seller has sustained no or only a smaller loss.
5.3 If the Client is in default with acceptance when impossibility of the Seller occurs or the Client is exclusively or predominantly responsible for such circumstances, the Client remains liable for its contractual obligations.
6 Place of performance, shipping, packaging, transfer of risk, acceptance
6.1 Unless otherwise specified, the place of performance for all obligations under the contract shall be Ermelo, Netherlands.
6.2 The method of shipping and the type of packaging shall be at the reasonably exercised discretion of the Seller.
6.3 The risk shall pass to the Client at the latest upon handover of the deliverable to the forwarder, carrier or other third party determined to transport the goods (for which purpose the start of the loading operation shall be authoritative). This also applies if deliveries are made in instalments, or if the Seller provides any other additional services (e.g. shipping or installation). If shipping or handover is delayed due to circumstances the cause of which falls within the Client’s sphere of responsibility, the risk shall pass to the Client on the date on which the deliverable is ready for shipment and the Seller notified the Client accordingly.
6.4 Insurance for the consignment against theft, breakage, damage during transport, by fire or water or other insurable risks shall be taken out only at the express request of the Client and at its cost.
6.5 In the event that formal acceptance is required under the purchase contract, the Client may reject deliveries or services only because of a defect that renders the deliverable unfit for use or materially affects its fitness for use. The purchase object shall be deemed formally accepted if and when
(a) the delivery and, if installation by the Seller is owed under the contract, installation is complete,
(b) the Seller has informed the Client thereof, making reference to the deemed acceptance pursuant to this § 6 (5), and asked the Client to accept the goods and/or services,
(c) 12 business days have passed since delivery or installation or the Client has begun to use the purchased object (e.g. has put the delivered system into operation) and 5 business days have passed in this case since delivery or installation, and
(d) the Client has failed to formally accept the goods or services during this period for any reason other than a defect reported to the Seller which renders the purchase object unfit for use or materially affects its fitness for use.
7 Warranty, defects in material
7.1 The warranty period shall be one year from the date of delivery or, if formal acceptance is required, from the date of acceptance. This time limit is a statute limitation and shall not apply to claims of the Client for damages arising from injury to life, limb or health or due to intentional or grossly negligent breach of duty by the Seller or its vicarious agents, which claims shall be subject to the statutory limitation periods.
7.2 All items delivered shall be thoroughly inspected without undue delay after delivery to the Client or to the third party designated by the latter. As far as obvious defects or other defects that could have been detected if the items had been thoroughly inspected without undue delay are concerned, they shall be deemed formally accepted by the Client unless the Seller receives a written notice of defects within 7 business days of delivery. As far as other defects are concerned, the deliverables shall be deemed formally accepted by the Client unless a written notice of defects is received by the Seller within seven business days of the defect becoming apparent; however, if the defect could have been detected by the Client at an earlier point in time during normal use, such earlier point in time shall be decisive for determining the commencement of the period within which defects must be reported. At the request of the Seller, a deliverable which has been reported by the Client to be defective shall be sent back to the Seller free of carriage charges. If the notice of defects turns out to be justified, the Seller shall reimburse the Client for the costs of the most inexpensive shipping method; this shall not apply, however, if the costs are higher because the deliverable concerned is located at a location other than the location where it is to be used for the intended purpose.
7.3 In the event of defects in material, the Seller shall, at its option (to be exercised within a reasonable period of time), first have the right and the obligation to remedy the defect by either making two attempts at repairing the defective item or delivering a replacement. In the event that remedial action fails, i.e. the repair or delivery of a replacement turns out to be impossible or unreasonable or is denied or unreasonably delayed, the Client shall have the right to declare avoidance of the contract or reasonably reduce the purchase price. Avoidance of the contract can only be declared within no later than 10 days after the requirements have been met. Otherwise the Client is only entitled to a reduction in price in addition to the compensation for damages in accordance with these Terms.
7.4 If a defect is due to fault of the Seller, the Client shall, subject to the conditions specified in § 9, have the right to claim damages.
7.5 In the event that components have defects the Seller is unable to repair for licensing or factual reasons, the Seller shall, at its option, either (a) assert its warranty claims against the manufacturer and/or upstream suppliers for the account of the Client or (b) assign them to the Client. Subject to the other applicable conditions and in accordance with these General Terms and Conditions of Delivery, such defects shall give rise to warranty claims against the Seller only if judicial enforcement of the aforementioned claims against the manufacturer and/or upstream suppliers has been unsuccessful or has no prospects of success, e.g. in case of insolvency. As long as the lawsuit continues, the running of the limitation period applicable to the warranty claims of the Client against the Seller shall be suspended.
7.6 The warranty shall cease to apply if a deliverable is improperly used, or modified by the Client – or by any third parties instructed by the Client – without the consent of the Seller, and remediation of the defect is thereby made impossible or unreasonably difficult. In any case, the Client shall bear the additional costs incurring for the remediation of the defect due to the modification.
8 IP Rights
8.1 The Seller shall be responsible for ensuring in accordance with this § 7 that deliverables are free of intellectual property rights and copyrights of third parties at the seat of Seller. Either party to the contract shall notify the respective other party in writing without undue delay if claims based on infringement of any such rights are made against it.
8.2 In the event that a deliverable infringes an intellectual property right or copyright of a third party, the Seller shall, at its option and at its cost, either (a) modify or replace the deliverable concerned to the effect that no third-party rights are infringed anymore while the deliverable still fulfils the function agreed by contract or (b) procure for the Client a right of use by entering into a license agreement. If the Seller does not succeed in doing so within a reasonable period of time, the Client is entitled to declare avoidance of the contract or to reduce the purchase price appropriately. Any claims of the Client for damages shall be subject to the limitations set out in § 9 of these General Terms and Conditions of Delivery.
8.3 In the event that products supplied by the Seller infringe any third-party rights, the Seller shall, at its option, either (a) assert its claims against the manufacturer and/or upstream suppliers for the account of the Client or (b) assign them to the Client. In these cases, claims against the Seller shall only exist in accordance with the provisions of this § 8 if the legal enforcement of the above-mentioned claims against the manufacturer or the sub-suppliers has been unsuccessful or, for example due to insolvency, has no chance of success.
9 Liability for damages based on fault
9.1 The liability of the Seller for damages on whatever legal ground, including, without limitation, based on impossibility of performance, default, defective or incorrect delivery, breach of contract, fault in conclusion of a contract [culpa in contrahendo] or tort shall be limited in accordance with this § 9 to the extent that fault is relevant.
9.2 The Seller shall not be liable in cases of simple negligence of its corporate bodies, legal representatives, employees or other vicarious agents, unless material contractual obligations are breached. Material contractual obligations are the obligation to deliver and install the deliverable in time, to ensure that it is free from defects in title and from defects in material which affect its operability or fitness for use to a more than minor extent and obligations to provide advice, protection and duties of care intended to ensure that the Client is able to use the deliverable in accordance with the contract or to protect the life or limb of personnel of the Client or to protect its property from material damage.
9.3 In the event that the Seller is liable for damages on the merits pursuant to § 9 (2), its liability shall be limited to the type of damage the Seller foresaw, or should have foreseen in exercising the customary degree of care, as a potential consequence of a breach of contract. Moreover, indirect and consequential damage resulting from defects of a deliverable shall only be recoverable to the extent that such damage is typically to be expected if the deliverable concerned is used in accordance with its intended purpose.
9.4 In cases of liability for simple negligence, the obligation of the Seller to provide compensation for defects in material and any further mere pecuniary losses resulting from that shall be limited to EUR 10,000 per damaging event, even if material contractual obligations are breached.
9.5 The aforementioned exclusions and limitations of liability shall apply to the same extent in favor of the corporate bodies, legal representatives, employees and other vicarious agents of the Seller.
9.6 If the Seller provides technical information or advice and such information or advice is not part of the scope of services it owes under the contract, this shall be free of charge and without incurring any liability.
10 Reservation of title
10.1 The purpose of the reservation of title agreed here below is to secure all present and future claims of the Seller against the Client under the supplier relationship existing between the parties to the contract for semi-finished and finished electronic products, including all balance claims from current accounts.
10.2 The goods delivered by the Seller to the Client shall remain the property of the Seller until all secured claims are paid in full. The goods and the goods taking their place in accordance with the following provisions which are subject to the reservation of title are hereinafter referred to as “Reserved Goods”.
10.3 The Client shall hold the Reserved Goods for the Seller free of charge.
10.4 The Client shall have the right to process and sell or otherwise transfer the Reserved Goods in the ordinary course of business until the Realisation Event (para. 9) occurs. The Client shall not be permitted to pledge the Reserved Goods or transfer them by way of security.
10.5 In the event that the Reserved Goods are processed by the Client, it is agreed that such processing shall be undertaken in the name and for the account of the Seller as manufacturer, and that the Seller shall directly acquire ownership or – in the event that substances owned by more than one owner are processed or the value of the substances processed exceeds the value of the Reserved Goods – co-ownership (fractional ownership) of the newly created object in the same proportion as the value of the Reserved Goods bears to the value of the newly created object. In the event that the Seller does not acquire ownership as aforesaid, the Client transfers its future ownership, or co-ownership in the proportion referred to above, already now and hereby, of the newly created object to the Seller as security. In the event that the Reserved Goods are inseparably intermingled or combined with other items to a single object, and if any of such other objects is to be regarded as the principal object, the Seller hereby transfers to the Client partial co-ownership of the single object in the proportion referred to in sentence 1 above to the extent that the principal object is owned by the Seller.
10.6 In the event that the Reserved Goods are to be re-sold or otherwise transferred, the Client already now and hereby assigns to the Seller the claim arising hereunder against the acquiring party as security, in the event that the Seller has co-ownership of the Reserved Goods, on a pro rata basis according to its co-ownership share. The same shall apply to any other claims which may take the place of the Reserved Goods or arise with respect to the Reserved Goods, e.g. insurance claims or claims in tort in cases of loss or destruction. The Seller hereby revocably authorizes the Client to collect the claims assigned to the Seller on its own behalf. The Seller may withdraw this collection authorization only in the Realisation Event.
10.7 The Client is obliged to handle the Reserved Goods with care. In particular, he is obliged to insure the Reserved Goods sufficiently at his own expense against fire, water and theft damage at reinstatement value. If maintenance and inspection work is necessary for the proper care of the Reserved Goods, the Client must perform such work in due time at his own expense. However, this shall only apply insofar as the costs thereby incurred are within the scope of the customary.
10.8 In the event that any third parties take recourse to the Reserved Goods, including, without limitation, by way of attachment, the Client shall, without undue delay, inform them that the Reserved Goods are owned by the Seller and inform the Seller accordingly to allow the latter to enforce its ownership rights. If such third party is unable to reimburse the Seller for the judicial and extrajudicial costs incurring in this context, the Client shall be liable for these costs to the Seller.
10.9 The Seller shall release the Reserved Goods and the objects or claims taking its place if their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released in accordance with this provision shall be at the discretion of the Seller.
10.10 In the event that the Seller declares avoidance of the contract because of breach of contract by the Client, including, without limitation, default in payment (hereinafter also referred to as a “Realisation Event”), the Seller shall have the right to claim surrender of the Reserved Goods.
11 Final Provisions
11.1 If the Client is a merchant, a legal entity under public law or a separate estate created under public law or does not have a general place of jurisdiction in the Netherlands, Ermelo or the place of the registered office of the Client shall, at the option of the Seller, be the place of jurisdiction for all disputes arising from the legal relationship between the Seller and the Client. However, in the event that claims are brought against the Seller, Ermelo, the Netherlands shall be the exclusive place of jurisdiction in those cases. This shall be without prejudice to any mandatory statutory provisions regarding exclusive places of jurisdiction.
11.2 The relationships between the Seller and the Client shall be governed exclusively by the laws of the Netherlands The United Nations Convention on Contracts for the International Sale of Goods [CISG] of 11 April 1980 shall not apply.
11.3 In the event that the contract or these General Terms and Conditions of Delivery contain any gaps, such legally valid provisions as would have been agreed between the parties to the contract according to the economic purpose of the contract, and the purpose of these General Terms and Conditions of Delivery, had they been aware of the gap shall be deemed agreed to fill those gaps.
12 Applicable Law
12.1 All agreements between Seller and Client shall be governed by and construed in accordance with the laws of the Netherlands, without reference to any conflict of law rules. Arbitration deemed necessary by any party shall be settled by the Court of Law in Zwolle, the Netherlands.