Filing of Standard Terms of Sale and Delivery of Moto-Lux Specialties B.V.:
These Standard Terms of Sale and Delivery have been filed with the Chamber of Commerce and Industry for Central Gelderland as number 09056702, on 1 July 2003.
Clause 1 Definitions:
1.1 In the following provisions ‘Customer’ shall mean the person to whom Moto-Lux makes an offer for delivery of goods and/or services as well as the person with whom Moto-Lux makes an agreement for delivery of goods and/or services.
1.2 ‘Agreement’ shall mean every agreement established between Moto-Lux and the customer, each modification thereof or supplement thereto, as well as all (legal) activities in preparation and execution of an agreement.
Clause 2 Application of these Terms:
2.1 These Terms shall apply to all deliveries of goods and/or services by Moto-Lux to the customer, as well as to all agreements pertaining thereto and all activities relating thereto, both of a preparatory nature, like offers, confirmations of order and deliveries.
2.2 The application of any standard or specific terms or conditions of the customer is explicitly rejected by Moto-Lux.
2.3 Divergent terms shall exclusively apply if and in so far as this has been confirmed and approved in writing by Moto-Lux and shall only apply to the relevant agreements.
If any provision of these Standard Terms is not valid for whatever reason, the parties shall negotiate on the contents of a new provision that shall approximate the contents of the original provision as closely as possible.
2.4. Moto-Lux reserves the right to modify these Standard Terms at any time. The modified Terms shall apply from the moment Moto-Lux has informed the customer of the modification in writing, provided always that with regard to the existing agreements with the customer the Terms that were in force on the day the agreements were made, shall remain applicable.
Clause 3 Offers:
3.1 All offers or (price) quotations made or given by or on behalf of Moto-Lux are without engagement and shall only be regarded as an invitation for placing an order.
3.2 An agreement shall only come into effect if and in so far as Moto-Lux accepts an order from the customer in writing or if Moto-Lux executes an order given by the customer.
3.3 If an order confirmation from Moto-Lux differs from an order given by the customer, the agreement shall be concluded in accordance with the order confirmation, unless the customer rejects the order confirmation in writing immediately on receipt.
3.4 All statements by Moto-Lux of prices, numbers, measures, weights and / or other specifications of products are made carefully, but are not binding upon Moto-Lux. Moto-Lux cannot guarantee that no deviations will occur in this respect.
3.5 For work/deliveries for which in connection with their nature and/or volume no order confirmation is sent, the invoice shall also be regarded as and order confirmation, which shall be considered to represent the agreement fully and accurately.
Clause 4 Modifications and Supplements:
4.1 Modifications of and supplements to any provisions of the agreement and/or the terms shall only apply if they have been recorded in writing by Moto-Lux and shall only relate to the relevant agreement.
4.2 Moto-Lux shall have the right – in case Moto-Lux thinks it necessary or desirable – for the proper execution of the agreement, to involve third parties, the cost of which will be charged to the customer, in accordance with the price quotation given by Moto-Lux.
Clause 5 Delivery:
5.1 Unless agreed otherwise, delivery will be made ex warehouse. The time of delivery shall be the moment when the goods ordered leave Moto-Lux’s warehouse.
5.2 From the moment of delivery, including the point of time stated in 5.1 above, the goods delivered shall be for the customer’s account and risk.
5.3 Times of delivery given shall never be regarded as deadlines. In case of late delivery Moto-Lux must be declared in default in writing whereby Moto-Lux must be allowed a reasonable period of time for delivery.
5.4 In case the period of delivery is exceeded, the customer shall not be entitled to any indemnity. Nor shall the customer in such case have the right to dissolve or to give notice of termination of the agreement, unless the exceeded time of delivery is such that the customer cannot reasonably be required to maintain the relevant part of the agreement. The other party will in such case have the right to dissolve the agreement to the extent that this is strictly necessary and only for such part for which the period of delivery has been exceeded.
5.5 Moto-Lux shall always have the right to make partial deliveries.
5.6 Unless expressly agreed otherwise, Moto-Lux will deliver the products (or have them delivered) to the address given by the customer. The customer shall take all reasonable measures to have the period between the time of advice and arrival at the delivery address and the time when the unloading of the products can be commenced, last as briefly as possible.
5.7 On delivery at the customer’s address the cost of transporting the products or moving the products within business premises or industrial sites are not included in the price. Such costs will be charged to the customer.
5.9 In case the customer does not or timely purchase the products he will be in default without further notice of default. In such case Moto-Lux shall have the right to store the products for the customer’s account and risk or to sell them to a third party. The customer shall remain indebted for the purchase amount increased by interest and costs, including storage costs, on account of indemnity, when appropriate reduced by the net proceeds of the sale to such third party.
5.10 Moto-Lux shall have the right to postpone new deliveries until the customer has met all his outstanding payment obligations towards Moto-Lux.
Clause 6 Transport/ Risk:
6.1 The method of transport, forwarding, packing and the like shall be decided by Moto-Lux, if the customer has not given any further instructions to Moto-Lux, without Moto-Lux assuming any liability therefor.
6.2 Shipment of goods shall always be made for the customer’s account and risk, also if carriage paid delivery has been agreed, even when the carrier requires that the bills of lading, consignment notes and the like contain the clause that all damage in transit shall be for the shipper’s account and risk.
6.3 The customer shall be liable for all damage (such as damage in transit, water, pilferage, fire damage) caused during transportation of the goods. The customer shall take out an adequate insurance against this risk.
Clause 7 Complaints:
7.1 The customer shall inspect the delivered goods as thoroughly as possible immediately on arrival. Any complaints about malfunctions or defects shall be reported to Moto-Lux in writing not later than within eight working days after delivery. Malfunctions or defects that could not reasonably be discovered within the said period of time shall be reported to Moto-Lux immediately after their discovery and not later than six months after delivery of the goods.
7.2 If and in so far as Moto-Lux considers the complaint justified, Moto-Lux shall exclusively be obliged in its discretion to repair the defect(s) or to replace the defective goods, without the customer being able in addition to assert any right to any compensation whatsoever.
7.3 After the discovery of any defect Moto-Lux may require the customer to discontinue the sale or delivery of the relevant goods instantly. The customer shall not have the right to complain with regard to products of which Moto-Lux cannot verify the complaint.
7.4 The customer cannot assert any claims against Moto-Lux for complaints about defects of products as long as the customer has not met any obligation towards Moto-Lux directly opposite it. The customer shall render every assistance Moto-Lux may require for investigating the complaint.
7.5 The customer shall not be at liberty to return the products, before Moto-Lux has consented thereto in writing. Transport shall always be made for the customer’s account and risk. Solely in case a complaint has been made timely, correctly and rightfully will the reasonable costs of returning be borne by Moto-Lux, provided such costs were approved by Moto-Lux beforehand.
7.6 The guarantee stated herein shall not apply when the defect was caused as a result of injudicious or improper use or when, without the user’s consent in writing, the customer or third parties have made or try to make changes to the product or have utilised it for purposes for which the product is not intended.
Clause 8 Charges, Price and Costs
8.1 Moto-Lux may charge inter alia changes in prices, if between the moment the offer is made and the agreement is executed significant changes in prices have occurred in respect of, for instance, rates of exchange, wages, raw materials, semi-manufactures, packing material.
8.2 The prices Moto-Lux applies are exclusive of VAT and any other levies, as well as any expenses made for the purpose of the agreement, including forwarding and accounting charges, unless indicated otherwise.
8.3 The prices quoted by Moto-Lux are in Euros ex warehouse, unless explicitly stated otherwise or agreed otherwise in writing.
Clause 9 Payment
9.1 Payment is to be made cash on delivery, unless agreed otherwise.
9.2 The customer shall not have the right to set off the amount owing to Moto-Lux against the amount he believes Moto-Lux owes him. Furthermore, the customer shall not have the right to suspend any payment obligation towards Moto-Lux.
9.3 From the moment the customer is in default up to the date of full payment he shall owe a default interest of 1% per month, or part thereof, without prejudice to Moto-Lux ‘s right to full indemnity on the basis of the law.
9.4 All costs of collecting the amounts owing by the customer, both judicial and extra-judicial, shall be for the customer’s account. The sum of the collection charges owing to Moto-Lux will be calculated on the basis of the collection rates of the Netherlands Bar Association.
9.5 On or after concluding the agreement the customer shall, at Moto-Lux’s first request thereto, be obliged each time to provide adequate security in connection with his payment obligations and other obligations ensuing from the agreement. Pending such provision of security, Moto-Lux shall have the right to suspend its obligations.
9.6 Moto-Lux will always consider payments made by the customer to apply to payment of interest and/or costs due and subsequently to payment of to the most aged unpaid invoices. Even though the customer may state that the payment relates to a later invoice.
Clause 10 Retention of Title:
10.1 Without prejudicing the other provisions of this agreement, the ownership of the goods delivered by Moto-Lux to the customer shall be retained up to the moment of full payment by the customer of all that he owes to Moto-Lux on account of all deliveries made under written agreement(s) concluded between Moto-Lux and the customer including all combined (balance) obligations and all debts to Moto-Lux because of the customer’s failure with regard to such agreements (including interest, costs and penalty).
10.2 The customer shall not be allowed to pledge the goods delivered by Moto-Lux or otherwise encumber them with a restricted right, as long as they are under retention of title.
10.3 If and as long as Moto-Lux is owner of the products, the customer shall inform Moto-Lux immediately if the products are (or threaten to be) attached or if third parties otherwise lay claim on the products or part thereof. Furthermore, the customer shall immediately inform the bailiff levying attachment and third parties of Moto-Lux’s (proprietary) rights. In addition, the customer shall inform Moto-Lux at its first request where the products are. The customer guarantees that an attachment of the products is immediately lifted.
10.4 In the case of a (provisional) moratorium on payments or bankruptcy the customer shall inform Moto-Lux immediately thereof and indicate to the administrator or the receiver Moto-Lux’s (proprietary) rights.
10.5 The customer undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and waster damage as well as against theft and to have the policy of such insurance inspected on demand.
10.6 Rights shall be granted, or where appropriate transferred to the customer on the condition that the customer shall always make the agreed payments in time and in full.
Clause 11 Dissolution/ Indemnity/ Suspension:
11.1 In case the customer:
a) files a petition for his own bankruptcy, is adjudicated bankrupt, assigns an estate, applies for a moratorium on payments, or all or part of his assets is attached and it is not lifted within 10 days of the attachment, or
b) does not or not fully meet any obligation under the Law or under contractual conditions (including the present Standard Terms) towards Moto-Lux after written notice of default, or
c) omits to pay an invoice amount or part thereof within the time specified, or
d) proceeds or decides to cease or transfer his business or an important part thereof, including the contribution of his business to a company to be formed or already existing, or proceeds or decides to alter the objective of his business or to its dissolution,
the customer shall be deemed to be in default ipso jure and the (remaining) debt will be immediately due and payable
11.2 In the cases referred to in 12.1 Moto-Lux shall have the right, without any obligation to pay indemnity and without prejudicing its rights, such as rights with regard to penalties or interest already due and the right to indemnity, and without notice of default or judicial intervention being required thereto:
a) to declare the agreement fully or partly dissolved by a written notification to that effect to the customer and/or
b) to demand immediate and full payment of any amount owing to Moto-Lux by the customer and/or
c) prior to performing further, to require first from the customer security for (timely) meeting his payment obligations
11.3 Moto-Lux shall have the right to take back products delivered. In this connection Moto-Lux and its attorneys shall have the right to enter the customer’s premises and buildings in order to take possession of the products. The customer shall be obliged to take the necessary measures in order to enable Moto-Lux to exercise its rights.
Clause 12 Limitation of Liability:
12.1 Subject to the other provisions of this Clause, Moto-Lux’s liability shall be explicitly limited to the provisions of Clause 7.2 with regard to complaints, so that in connection with the goods delivered Moto-Lux shall never be liable for any (further) damage, including consequential loss, and Moto-Lux shall not be obliged to pay loss due to business interruption, loss of profits, damage due to personal accidents, damage resulting from third party claims against the customer or any other damage whatsoever.
12.2 Subject to the provisions of Clause 12.1 above, liability towards the customer for whatever cause or reason shall be limited to the invoice value of the products delivered by Moto-Lux to the customer, on the basis whereof the claim has arisen. An interrelated series of events shall thereby be regarded as one event.
12.3 For damage of whatever nature arising from or caused by the use of the delivered product or by unsuitability thereof for the purpose for which the customer has used it, Moto-Lux shall not be liable.
12.4 Moto-Lux shall not be liable for damage of whatever nature caused by acts or omissions by personnel employed by Moto-Lux or by other persons whose services Moto-Lux employs, including advice or other instructions by such persons for the application and the use of the product delivered by Moto-Lux, except in the case of gross negligence and/or intention.
12.5 The customer shall indemnify Moto-Lux against all third party claims for payment of damages in connection with the goods delivered to the customer by Moto-Lux, unless the damage results from gross negligence/intention by Moto-Lux personnel and/or third parties engaged by Moto-Lux.
12.6 Moto-Lux shall not be liable for damage of whatever nature, because Moto-Lux proceeded from incorrect and/or incomplete data provided by the customer, unless such incorrectness or incompleteness should be for user Moto-Lux.
Clause 13 Transfer of Rights and Obligations:
13.1 Moto-Lux shall be allowed to transfer to third parties rights ensuing from any agreement with the customer. Conversely, the customer shall only be permitted to do so with Moto-Lux’s prior consent in writing.
Clause 14 Force Majeure
14.1 In case Moto-Lux is prevented from (further) executing the agreement due to force majeure of a permanent or temporary nature, Moto-Lux shall have the right, without any obligation to pay damages to the other party, to dissolve the agreement fully or partly by a written communication to that effect without judicial intervention, without prejudice to Moto-Lux’s right to payment by the customer for performance already made by Moto-Lux, before there was any question of the force majeure situation, or to suspend the (further) execution of the agreement. In the case of suspension, Moto-Lux shall as yet have the right to declare the agreement fully or partly dissolved.
14.2 Force majeure shall include all circumstances that render Moto-Lux temporarily or permanently unable to meet its obligations, such as government measures, strike, defaulting suppliers of goods required for delivery of Moto-Lux goods and services, and furthermore all circumstances whereby Moto-Lux cannot (or no longer) reasonably be required to (further) meet its obligations towards the customer.
Clause 15 Intellectual Property and Copyrights
15.1 The customer shall not be allowed to remove or alter any indication of brands, trade names, patents or other rights from the goods delivered by Moto-Lux, including indications about the confidential nature and confidentiality of the goods delivered or to alter or to copy the products or any part thereof. The customer will be obliged to impose this proviso on his customer by way of third-party clause.
15.2 Moto-Lux assumes no liability for infringements of third party intellectual or industrial property rights caused by the modifications made to the delivered goods without Moto-Lux’s consent.
15.3 All documents, if any, provided by Moto-Lux, such as designs, sketches, drawings, films, software, (electronic) files etc., are exclusively intended for being used by the customer and he may not reproduce, publish or bring them to the knowledge of third parties without the user’s prior consent, unless otherwise ensues from the nature of the documents provided.
Clause 16 Other Customer Obligations
16.1 The customer guarantees that, depending on the application, the customer himself, the intermediary and/or the end-user will ensure that:
a. the products are stored in a suitable place;
b. the products are not modified or altered;
c. the serial number and/or the production date is not modified or altered;
d. the products are installed by expert persons and that they thereby obey the installation instructions;
e. the products are used normally and carefully for the purpose they are intended for;
f. the products are maintained regularly and properly;
g. the instructions for use and maintenance given by Moto-Lux are always adhered to.
Clause 17 Applicable Law / Disputes
17.1 The present Terms as well as all agreements referred to in Clause 1.2 shall be subject to the laws of the Netherlands, with the exclusion of the Vienna Sales Convention.
17.2 All disputes ensuing from or relating to the agreement shall exclusively be submitted for adjudication to the competent Court in whose district Moto-Lux has its registered office, unless Moto-Lux, as claimant, prefers a court in a different judicial district.
17.3 The parties shall only appeal to the court after they have done their utmost to settle a dispute by mutual consultation.