APPENDIX General Terms and Conditions of Sale of AutoPoint International B.V.

Transcription

1 APPENDIX General Terms and Conditions of Sale of AutoPoint International B.V. General Terms and Conditions of Sale of AutoPoint International B.V., registered at the Trade Register of the Dutch Chamber of Commerce under number Article 1 Definitions A. In these General Terms and Conditions of Sale (hereinafter referred to as the General Terms and Conditions ) the following terms shall have the meanings as set out below, unless expressly indicated otherwise: Seller: AutoPoint International B.V. Buyer: any party to which the Seller supplies goods or performs services or has agreed to supply goods or perform services, and any party that has given the Seller an assignment or instruction of another nature. Agreement: any agreement concluded by and between the Seller and the Buyer relating to the purchase and delivery of goods or services by the Buyer from the Seller and any other assignment or instruction provided by the Buyer to the Seller, as well as any act, legal or otherwise, which relates to the foregoing. Article 2 General A. The provisions of these General Terms and Conditions are applicable to each and every proposal, offer and (price)quotation of the Seller, an invitation by the Buyer to the Seller to make an offer, orders and instructions of the Buyer, as well as the Agreement concluded by and between the Seller and the Buyer and any act, legal or otherwise, between the Seller and the Buyer. B. Applicability of any (general) terms and conditions of the Buyer is hereby expressly excluded. C. If one or more provisions of these General Terms and Conditions is considered to be invalid or void, the other provisions shall remain in full force. The Seller shall replace the relevant provision by another provision where, if and to the extent possible, the objective and the scope of the original provision are taken into account. D. The Seller is entitled to unilaterally amend and/or supplement these General Terms and Conditions. Amendments or supplements shall apply as of the moment of notification thereof to the Buyer by the Seller, to new Agreements and not to Agreements that are already agreed upon.. E. If any of the provisions of the Agreement deviate from the provisions in these General Terms and Conditions, the provisions of the Agreement shall prevail. F. The Agreement, including any schedules thereto, and these General Terms and Conditions constitute the entire agreement and understanding of the parties with respect to the transaction contemplated thereby and supersede all other agreements or understandings of the parties, whether written or oral. G. The Buyer may not assign or subcontract any of its rights and obligations under the Agreement and these General Terms and Conditions to a third party, without the prior written consent of the Seller. H. The Seller is entitled to engage third parties for the performance of its obligations that ensue from the Agreement or these General Terms and Conditions. The provisions of the Agreement and these General Terms and Conditions apply to any work performed by any third party engaged by the Seller and can be invoked by such third party. Pagina 1 van 8

2 Article 3 Offers and proposals; formation of the Agreement A. All proposals, offers and (price)quotations of the Seller shall always be without obligation and may be subject to cancellation or modification by the Seller at any time. B. In case the Seller does not offer specific goods for sale, the Buyer can request the Seller in writing to perform a search inquiry for the sale and delivery of such goods (through a third party supplier or manufacturer) and thus invite the Seller to make the Buyer an offer. The Seller has no obligation to accept a request for a search inquiry and provide an offer for the sale and delivery of the relevant goods. C. An Agreement between the Seller and the Buyer shall be formed, upon acceptance by the Seller in writing of an order from the Buyer, or alternatively, at the time the Seller begins to fulfill the order from the Buyer, or, in case the Buyer has invited the Seller to make an offer in accordance with clause 3 B. above, upon acceptance of such an offer in writing by the Buyer (within the term provided by the Seller for acceptance of the offer, if applicable). If the acceptance deviates (whether or not on subordinate points) from the offer provided, the Seller shall not be bound by the same. The Agreement shall in that case not be formed, unless indicated otherwise by the Seller in writing. D. The Seller can accept or reject orders at its discretion, without giving reasons. E. Offers, proposals or (price)quotations are not automatically applicable to repeat orders or future orders. Article 4 Prices A. The purchase price for the goods shall be set forth in the Agreement and/or the (pro forma) invoice to be provided by the Seller. B. Whether or not prices include or exclude VAT, BPM and other costs and levies, such as service charges, transportation- and insurance costs, as well as which party shall bear those costs, shall be set forth in the Agreement and/or the (pro-forma) invoice to be provided by the Seller. C. The Seller is entitled to unilaterally adjust the agreed upon prices, or parts thereof, for goods or services not yet delivered and/or not yet paid, to reflect any changes in price as a result of factor driven product changes. The Buyer shall be bound by such adjustments. Article 5 Provision of information by the Buyer A. The Buyer is obliged to timely supply all information of which the Seller indicates it is necessary to be received by it or of which the Buyer ought to understand that receipt is necessary for the execution of the Agreement. If not supplied in a timely fashion the Seller shall be entitled to suspend the execution of the Agreement and charge any and all extra costs and damages resulting from a possible delay in the performance of the Agreement. Article 6 Delivery; passing of risk A. Delivery terms and times quoted or agreed shall not be considered to be a final deadline, unless expressly otherwise agreed in writing. The exceeding of the delivery term shall therefore not lead to a default (verzuim) on the part of the Seller, nor to any liability for compensation of damages and costs of the Buyer. The Agreement may not be terminated or rescinded by the Buyer due to the delivery term being exceeded. B. The Seller will deliver the goods under the condition Ex-Works within the meaning of the latest version of the Incoterms as prepared by the International Chamber of Commerce, unless expressly otherwise agreed in writing. The risk of the goods shall pass from the Seller to the Buyer in accordance with the agreed upon condition. C. In the event of delivery of the goods under the condition Ex-Works (as set out above), the Pagina 2 van 8

3 goods must forthwith be picked up, yet not later than within 14 days after notification that the goods have been paid and/or are ready. In case this deadline is not met, the Buyer shall be obliged to pay garage charges, which are immediately due and payable, without a prior notice being required, for a total amount of EUR 50,00 per individual good per week, such without prejudice to the right of the Seller to claim additional damages such as, inter alia, the costs associated with insurance and transportation. Notwithstanding the foregoing, the risk of the goods shall pass from the Seller to the Buyer, at the moment and in accordance with the provisions of clause 6 B. above. D. The Buyer is obliged to purchase the goods and services (afnameverplichting). In cases where delivery does not take place under the condition Ex-Works, the Buyer shall be obliged to purchase the goods, and the risk thereof shall pass from the Seller to the Buyer, at the moment and under the conditions that the Seller and the Buyer have agreed upon in the Agreement, or at the moment the goods are rendered available to the Buyer by the Seller. E. If the Buyer refuses or fails to supply information and documents necessary for the delivery of the goods, the Seller shall be entitled to store the goods for the risk and account of the Buyer. Article 7 Inspection, duty to complain A. The Buyer is obliged to inspect, or have inspected, the delivered goods or services provided on quality and quantity immediately upon delivery thereof. Defects must be reported to the Seller in writing within 2 working days after the date of delivery. Failure to complain within this time will result in forfeiture of any rights of the Buyer, including, but not limited to, forfeiture of the right to claim damages. B. Even if a complaint is lodged in a timely fashion, the Buyer shall remain obliged to purchase and pay the goods and services. If the Seller is of the opinion that a complaint of the Buyer is justified, it shall, at its option, repair, replace or take back the delivered goods or services, or provide a discount, to be determined by the Seller at its discretion, to the Buyer in the price (to be) paid to for the relevant goods or services. Article 8 Payment and costs A. The Seller shall determine, at its discretion, the applicable invoicing and payment regime (inter alia, depending on the circumstances of the Buyer), and shall inform the Buyer thereof prior to the date of conclusion of the Agreement. The relevant invoicing and payment regimes include (without limitation): (i) In case an Agreement is concluded following a search inquiry as referred to in clause 3 B. above, the purchase price shall have to be prepaid in part prior to the Seller ordering the good concerned with a third party supplier/manufacturer (the amount of which shall be determined by the Seller at its discretion). The Seller shall provide a pro forma invoice for the prepayment amount, which shall have to be paid within the payment term as set out in the Agreement and/or pro forma invoice. Only after payment of the prepayment amount is received by the Seller, the Seller shall place an order for the relevant good with the third party supplier/manufacturer and shall be obliged to perform the Agreement. Upon or after delivery of the good concerned, the Seller shall provide a final invoice. The remainder of the purchase price, that is the difference between the prepayment amount and the amount of the final invoice, shall have to be paid by the Buyer within the payment term as set forth in the Agreement and/or the final invoice; (ii) The purchase price shall have to be prepaid in part or in full by the Buyer, prior to the date of delivery of the good concerned. The Seller shall provide a pro forma invoice to the Buyer, which shall have to be paid prior to the date of delivery of the good. The payment term shall be set forth in the Agreement and/or the pro forma invoice. Upon or after delivery of the good, the Seller shall provide a final invoice. In case of prepayment in part, the remainder of the purchase price, that is the difference between the prepayment amount and the amount of the final invoice, shall have to be paid by the Buyer within the payment term as set forth in the Agreement and/or the Pagina 3 van 8

4 (iii) (iv) final invoice. In case of prepayment in full, the final invoice shall not have to be paid by the Buyer; Payment of the purchase price can take place after the date of delivery of the good concerned. The Seller shall provide a final invoice for the purchase price upon or after the delivery date. The purchase price shall have to be paid within the payment term as set forth in the Agreement and/or final invoice; A combination of any of the above-mentioned regimes. B. The Seller is entitled to unilaterally amend the payment and invoicing regime applicable to the Buyer, which shall be bound by any such amendment. C. The Buyer is not entitled to set off any debt to the Seller against any claim on the Seller. The Buyer shall have no right of suspension of any of its obligations. In case the Buyer fails to comply with its payment obligations towards the Seller, in addition to any other rights and remedies available to the Seller, the Seller may suspend the (term for) delivery of the goods and services concerned. D. If the Buyer does not (timely or fully) comply with its payment obligation(s) towards the Seller, the Buyer shall be in default 14 days after written notice. In that case, the Seller shall be entitled to rescind the Agreement and/or sell the goods to a third party and claim the difference between the price the Buyer was obliged to pay and the price paid by the relevant third party from the Buyer. E. If the Buyer is in default or fails to comply with one or more of its obligations by virtue of the Agreement all reasonably incurred costs by the Seller to obtain compliance extra judicially shall be for the account of the Buyer. F. Payments made by the Buyer shall be used firstly to cover the costs incurred by the Seller to obtain such payments, then to cover the accrued interest over such costs and any outstanding principle amount and finally payments made by the Buyer shall be allocated to cover the principal amount outstanding. Payments shall, unless indicated otherwise in writing, be deemed to be made to fulfil the longest outstanding invoice. G. If the parties have agreed that the Agreement is to be performed in phases, the Seller can suspend the execution of any (next) phase (including the delivery of ordered goods or provision of services) until the Buyer has paid the invoice in connection with the preceding phase(s). H. At the Seller s first request, the Buyer shall provide security, whether or not additional, in the form of a bank guarantee or other type of security, to be determined by the Seller at its discretion, for the performance by the Buyer of any payment obligations arising from the Agreement towards the Seller. If the Buyer refuses to provide security, the Seller will be entitled to suspend performance of the Agreement or rescind the Agreement, without prejudice to any of its other rights at law or under the Agreement (including these General Terms and Conditions). Article 8H applies only if the required LC from this contract is left out I. Article 9 Retention of title A. Each and every delivered good and/or goods still to be delivered by the Seller to Buyer are and remain the property of the Seller until all claims that the Seller has or will have on the Buyer, among which in any case the claims as described in article 3:92 of the Dutch Civil Code, are paid in full. This means that the transfer of title from the Seller to the Buyer for each good only takes place after these claims, such as the purchase price for such good or the damages, have been paid by the Buyer to the Seller in full. In case multiple goods are purchased by the Buyer, the retained title as described in article 3:92 of the Dutch Civil Code will remain at the Seller to all these goods jointly until the price for all goods has been paid by the Buyer. B. The Buyer shall hold any supplied goods as holder (houder) for the Supplier as owner (eigenaar) until the condition precedent (opschortende voorwaarde) as set out in clause Fout! Verwijzingsbron niet gevonden. of this Framework Agreement has been fulfilled. C. The Buyer is not authorized to pledge the goods supplied to it under retention of title or to encumber (or have encumbered) the same in any other manner whatsoever, Pagina 4 van 8

5 provided that the Buyer shall be entitled to use and sell the goods delivered in the ordinary course of its business. D. If third parties impose a (prejudgment) attachment on the goods delivered under retention of title or if they intend to vest or exercise rights in connection therewith, the Buyer is obliged to forthwith inform the Seller accordingly. Article 10 Documentation and insurance A. Upon the supply (feitelijke aflevering) of a good to the Buyer, the Seller shall, to the extent applicable, provide the Buyer with such documentation to enable the Buyer to register the good in its own name. B. Notwithstanding clause 10 A. above, the Seller is entitled to retain any registration documents, including documents for purpose of registering a good in the name of the Buyer, and/or transport documents relating to a good until receipt of the purchase price in respect of each such good. C. The Seller is entitled to suspend the provision of any registration documents and/or transport documents if Seller has any ground for termination of the Agreement in accordance with the termination provisions set out therein, and/or these General Terms and Conditions. D. Unless prohibited by any applicable law, any insurance coverage maintained by the Seller with respect to the goods, shall be cancelled as of the moment of supply (feitelijke aflevering) thereof to the Buyer. E. The Buyer shall insure and keep insured the goods supplied to it under retention of title against fire, explosion, water damage and theft as of the moment of the supply (feitelijke aflevering) thereof and shall, upon first demand of the Seller, provide a copy of the insurance policy. In case of a possible payment under the insurance the Seller shall be entitled to the same. Article 11 Warranty and recall A. A manufacturer s warranty is by default applicable to new goods (as applicable in the country of the original supplier or manufacturer). No warranty applies to used goods unless explicitly agreed otherwise in writing. B. In case a withdrawal or recall of the goods (or any event which is similar thereto) is deemed necessary by the Seller, the Buyer shall render its full cooperation thereto. In case a withdrawal or recall is required, the Seller shall not be liable for any type of damages of the Buyer, including, but not limited to, lost profits. The Buyer shall indemnify the Seller from and against any claims of third parties in connection with such withdrawal or recall. The foregoing exclusion of liability shall not apply in case damages are inflicted as the result of the intent (opzet) or wilful recklessness (bewuste roekeloosheid) of merely the executive staff of the Seller. Article 12 VAT A. If the Buyer is located in another Member State of the European Union than the state in which the Seller is located, and at the request of the Buyer, invoicing shall take place in accordance with the VAT reversed charge mechanism. The Buyer shall comply with all required conditions in order to realize a valid intra-community transaction. The Buyer indemnifies the Seller from and against all claims and damages in connection with the noncompliance with said conditions. B. If applicability of this rate appears to be, for any reason whatsoever, impossible, the Buyer shall yet be held to pay an amount equal to the sum that would be payable in case of a domestic transaction. C. In any case the Buyer is obliged to present the following items to the Seller; (i) prior to delivery: i. approved VAT number of the Buyer; ii. the order or acceptance of an offer by the Buyer ; Pagina 5 van 8

6 iii. copy of the registration of the Buyer at the Chamber of Commerce; (ii) after delivery or transport: i. signed copy of the CMR; ii. copy of the export documentation (outside the European Union); iii. Registration documentation from country of destination. Article 13 Suspension and dissolution A. The Seller may, at its option, fully or partly suspend the performance of the Agreement, or rescind (ontbinden) the Agreement in full or in part, at its discretion, with immediate effect by registered letter to the Buyer, and without the Seller being liable for compensation of any type of damages or costs of the Buyer, in the event that: (i) The Buyer fails to (timely or completely) fulfill any of its obligations under the Agreement; (ii) The Buyer applies for, or is granted, suspension of payments, or the Buyer or any third party applies for the bankruptcy of the Buyer or the Buyer is declared bankrupt or an event similar to the foregoing occurs; (iii) The Buyer discontinues its business operations; (iv) There is a change of control on the part of the Buyer, whereby a third party acquires more than 50% of the ownership of or voting rights in the Buyer; (v) A (prejudgment) attachment is made on one or more of the Buyer s assets; (vi) Permits of the Seller or the Buyer required for the performance of the Agreement are cancelled. B. An order accepted by the Seller as well as an offer accepted by the Buyer, in accordance with clause 3 above, cannot be cancelled by the Buyer, unless the Buyer specifies in writing in a substantiated manner why the same wishes to proceed with cancellation and the Seller, at its discretion, accepts the cancellation in writing (the Seller is at all times entitled to reject a request for cancellation). The cancellation fees to be paid by the Buyer amount to at least 15% of the invoice value concerned, or the amount that the Seller determines, at its discretion. C. The Agreement, order, offer or (price) quotation can be cancelled by the Seller at any time, without cost or liability of the Seller for any possible costs or damages of the Buyer only if the goods that are sold are not delivered to the seller by the manufacturer of the goods. Article 14 Liability and indemnification A. The liability of the Seller vis-à-vis the Buyer is limited to Direct Damages (as defined in clause 14 B. below), whereby a minimum damage threshold of EUR 50 per claim shall apply (meaning that if a claim for damages amount to EUR 50 or less, no obligation for the Seller to compensate the damages exists). In any event, the maximum amount of Direct Damages to be compensated by the Seller per claim, shall not exceed the amount for which the liability insurance of the Seller provides coverage (if any). B. Direct damages consist of (hereinafter referred to as Direct Damages ): (i) damages to the lacquer of any supplied goods caused by an attributable breach of the Seller or any of its personnel or third parties engaged by it (hereinafter referred to as the Seller c.s. ), of the obligations that ensue from the Agreement or these General Terms and Conditions, or by an unlawful act performed by the Seller c.s. or for which the Seller c.s. can be held liable on other grounds, to the extent the damages are visually detectable and cannot be repaired through polishing, in which case the compensation shall not exceed EUR 150 per panel; (ii) indents, which are caused by an attributable breach by the Seller c.s. of the Pagina 6 van 8

7 obligations that ensue from the Agreement or these General Terms and Conditions, or by an unlawful act performed by the Seller c.s. or for which the Seller c.s. can be held liable on other grounds, and which are visually detectable from a 3-metre distance from the relevant goods. Whether or not this condition is met, shall be determined by an expert to be appointed by the Seller. The expert shall also determine the possible costs of repair of the indents concerned; (iii) the reasonable costs incurred by the Buyer to establish the cause and the scope of the Direct Damages, unless these damages are not caused by an attributable breach by the Seller c.s. in any of the obligations that ensue from the Agreement or these General Terms and Conditions, or an unlawful act of the Seller c.s.or for which the Seller c.s. can be held liable on other grounds; (iv) the reasonable costs incurred by the Buyer to prevent or limit any Direct Damages, unless such damages are not caused by an attributable breach by the Seller c.s. of the obligations that ensue from the Agreement or these General Terms and Conditions, or an unlawful act of the Seller c.s. or for which the Seller can be held liable on other grounds. The list of Direct Damages as set out above is an exhaustive list except for Article 14 D below.. C. The Seller shall also be liable to the Buyer for any other type of damages than Direct Damages, such as indirect and consequential damages, which include, without limitation, lost profits, lost savings and losses due to business interruptions unless the Seller is brought in this position by force majeure. D. A notification of damages (in accordance with this clause 14) to goods delivered by the Seller, shall only be processed, if the Seller is informed of the damages in writing within 5 working days after the delivery by means of an annotation on the CMR consignment note and by means of the presentation of documented pictures (license registration number / chassis number / visible features) or the day that these damages are known to the Buyer. The Buyer shall forfeit any of its rights if a notification of damages is not provided within this timeline, including the right to claim any damages. This article does not apply if the cars are not delivered. E. The Buyer indemnifies the Seller against claims of third parties in connection with the Agreement and the delivery of goods and performance of services, unless and insofar as the Buyer demonstrates that a causal link does not exist between the damages incurred or the claim of the third party and any circumstance(s) that fall within the Buyer s scope of risk. Article 15 Force Majeure A. In the event of Force Majeure on the part of either party, the performance of the Agreement shall be fully or partially suspended for as long as the situation of force majeure continues, without either party being liable for payment of any compensation to the Buyer. If the force majeure situation is reasonably expected to continue for more than three (3) months or has already lasted for three (3) months, the Seller may dissolve the Agreement by registered letter effective immediately and without recourse to the competent court, without thereby creating any rights to compensation. Force majeure on the part of the Seller shall include, without limitation: (i) Non delivery, partial delivery, or delayed delivery (whether or not to the Seller) by suppliers; (ii) War and danger of war; Pagina 7 van 8

8 (iii) Terrorism, (iv) Import and export bans; (v) Measures of Dutch or foreign authorities rendering the performance of the Agreement more difficult or more expensive than could be foreseen at the time of conclusion thereof; (vi) Strikes, fire, theft, loss or damage during transport. Article 16 Confidentiality A. The parties shall keep confidential all information originating from the other party, which was designated as confidential or which the parties can reasonably assume to be confidential and which comes to their knowledge in connection with the Agreement. The parties shall impose the obligation to keep confidential as set out in this clause on their respective employees and third parties engaged by them in the context of the performance of the Agreement. Article 17 Disputes and applicable law A. Any disputes between the parties that may ensue from or arise in connection with the Agreement, these General terms and Conditions, all invitations to make an offer, (price)quotations, proposals, offers and orders, shall be exclusively settled by the competent court in The Hague. B. The Agreement and these General Terms and Conditions of Sale, all invitations to make an offer, (price)quotations, proposals, offers and orders, shall be exclusively governed by Dutch law. The applicability of the Vienna Sales Convention is expressly excluded. Pagina 8 van 8