GENERAL TERMS AND CONDITIONS OF ARCH & HOOK
In these General Terms and Conditions, the definitions used shall have the meaning as described below:
Agreement means any of the following: (i) a quotation sent by the Company and signed by the Customer, (ii) a supplier contract entered into between the Customer and the Company, (iii) a written order confirmation sent by the Company to the Customer, and (iv) an invoice sent by the Company to the Customer.
Arch & Hook Group means Arch & Hook Holding B.V. and its subsidiaries and participations, the ultimate parent of Arch & Hook Holding B.V. and any and all persons with respect to which now or hereafter the ultimate parent of the Arch & Hook Holding B.V., directly or indirectly, holds more than 50 percent of the voting power at general meetings, or has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such person;
Force Majeure means any circumstance beyond the Company’s control, even if it was foreseeable when the Agreement was entered into, which permanently or temporarily prevents the fulfilment of the Agreement, including war, the threat of war, civil war, riot, strike, lockout, transport restrictions, fire, epidemics, weather conditions that prevent working and any other interruption of the operations of the Company or its suppliers, and default of the Company’s suppliers.
General Terms and Conditions means the general terms and conditions as laid down in writing below;
Intellectual Property Rights means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world; and
Products mean the products and/or services to be supplied to the Customer by the Company.
Clause 1. Scope
1.1 These General Terms and Conditions apply to all Agreements involving a company belonging to the Arch & Hook Group (the relevant company hereinafter referred to as the Company) relating to the supply of Products by the Company to the party to whom the offer is made or the other party to the Agreement (such party hereinafter referred to as the Customer). At the date of the issuance of these General Terms and Conditions, companies belonging to the Arch & Hook Group include: (i) Arch & Hook UK Limited, (ii), Arch & Hook B.V., (iii) Arch & Hook Inc., (iv) Arch & Hook Australia Pty Ltd and (v) Arch & Hook Singapore Pte ltd.
1.2 All orders for Products shall be deemed to be an offer by the Customer to purchase Products pursuant to these General Terms and Conditions.
1.3 The Company shall not be bound by conflicting purchasing conditions or reservations made by the Customer even if the Company has not explicitly contradicted the conditions or reservation. Any provisions that vary from these General Terms and Conditions will only apply if and in so far as they are explicitly accepted by the Company in writing.
1.4 The Customer may not assign his rights and obligations under these General Terms and Conditions.
1.5 The legality, validity and enforceability of other clauses in these General Terms and Conditions will not be affected if one of the clauses is or becomes illegal, invalid or unenforceable.
Clause 2. Offers and quotations
2.1 All offers and quotations sent by the Company are without commitment unless the contrary is expressly provided in writing.
2.2 All offers and quotations sent by the Company are valid for 30 days from the date the Company sends a quotation to the Customer, unless otherwise agreed in writing. The quotation shall be void if the Customer does not accept the quotation unconditionally by signing the quotation within 30 days.
Clause 3. Agreement
3.1 Only an Agreement will constitute a binding obligation of the Company to deliver the Products.
3.2 Any promises made by or arrangements made with employees of the Company will not bind the Company, unless they have been confirmed in writing by a person authorized to represent the Company.
3.3 Unilateral termination of an Agreement by the Customer is invalid unless the Company agrees to such termination in writing.
Clause 4. Marketing Materials
4.1 Notices, data, statements, (technical) drawings, (technical) specifications, dimensions, renders, mock-ups, illustrations, presentations, samples and other products, materials and/or information made or provided by the Company, in whatever form or of whatever nature (together, Marketing Materials), are only indicative and shall never bind the Company.
4.2 The Company will always remain owner of the Marketing Materials.
4.3 If the Company distributes the Marketing Materials to the Customer, the Customer shall in all events (i) adhere to all the instructions given by the Company, (ii) at the Company’s written request, immediately cease the use of the Marketing Materials, (iii) use the Marketing Materials solely for its own use and not allow any third party to use the Marketing Materials and (iv) not make copies of or changes to the Marketing Materials unless with the prior consent of the Company.
4.4 All Intellectual Property Rights with respect to the Marketing Materials shall, so far as not already vested, become or remain the absolute property of the Company, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Company by the execution of appropriate instruments or the making of agreements with third parties.
Clause 5. Confidentiality
5.1 The Customer shall maintain the confidentiality of any business information which relates to the Company and not disclose it to any third party; business information is to be interpreted in the broadest sense and includes any information which is disclosed to the Customer by the Company or which comes to the Customer’s knowledge in the context of the Agreement.
Clause 6. Prices
6.1 The prices quoted and/or agreed upon by the Company shall be exclusive of taxes – such as sales tax, value added tax (“B.T.W.”, Dutch VAT) –levies and duties, unless the contrary is expressly provided in writing. Taxes, duties or levies will be charged where such additional taxes, duties and levies are deemed obligatory, unless the Customer proves that they’re exempt from such taxes, duties and levies.
6.2 The prices quoted and/or agreed upon by the Company shall be exclusive of any loading and delivery costs, unless the contrary is expressly provided in writing.
6.3 All prices quoted and/or agreed upon by the Company include the Company’s standard packing.
6.4 The Company has the right to increase the quoted or agreed prices in the event of an increase of cost of the items, raw materials or parts obtained from third parties or an increase in wages, national insurance contributions, freight, insurance premiums or other cost components (including fluctuations in foreign exchange rates) and charges (including import and transit duties), provided that the aforementioned factors results in an increase of the quoted or agreed price of 5% or more within the period between the Agreement and the time of actual delivery.
Clause 7. Delivery; term of delivery
7.1 Unless expressly otherwise agreed in the Agreement, delivery shall be made “Ex Works” (EXW). The interpretation of the terms and conditions of delivery shall be governed by the edition of the Incoterms issued by the International Chamber of Commerce that was the most recent at the time of the Agreement.
7.2 The delivery period shall commence on the latest of the following dates: (i) the date of the Agreement is entered into, (ii) the date on which the Company has at its disposal all the documents, information, permits, exemptions, approvals, allocations, etc., required for the supply of the Products or (iii) the date on which the Company receives an advance payment or security deposit, to the extent entitled under the Agreement.
7.3 The Company shall use its best efforts to deliver the Products at the delivery date, it being understood that the delivery date will be the Company’s reasonable estimate of when the products will be delivered. Time for delivery shall not be of the essence and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Customer shall have no right to damages or to cancel the Agreement for failure for any cause to meet any delivery date stated.
7.4 The Company assumes no liability for, and Customer waives any claims based on, loss, damage, or consequential damages due to delivery delays.
7.5 The Company shall at all times be entitled to make partial deliveries, unless expressly agreed otherwise.
Clause 8. Transportation
8.1 The Products are transported at the expense and risk of the Customer, unless expressly agreed otherwise. Any claims for missing or damaged Products must be made at the Customer’s insurance provider.
8.2 The Company shall not be responsible for documents (or their use by the Customer) which are provided by the Company for the transport of the Products to the destination.
8.3 At the request of the Company, the Customer shall immediately provide all the necessary security for the documents which are required for the transport of the Products to the destination.
8.4 In the event that circumstances beyond the Company’s control occur which make transport to or (part of) delivery at the agreed place impossible, or if the Customer does not take delivery of the Products, the Company shall have the right – at its option – to take the Products back or to store them or cause them to be stored at the expense and risk of the Customer. The costs of return shipment and storage shall be payable by the Customer, and the Customer shall furthermore be obliged to fulfill its obligations to the Company as if delivery has taken place.
Clause 9. Risk; transfer of property
9.1 The Customer shall bear the risk of any direct or indirect damage that may be caused to the Products from the time they are deemed to have been delivered.
9.2 The Company shall retain ownership of all the Products delivered until the Customer has made full payment of everything it owes the Company for Products delivered or to be delivered to it by the Company under an Agreement, or for failure to fulfill such an Agreement.
9.3 The Customer shall store Products which are delivered under retention of title with due care and ensure that they are identifiable as the Company’s property. The Customer shall also ensure the Products against damage or loss from whatever cause during the period in which the Company retains title to the Products; the insurance policy must designate the Company as a (co-)insured having an independent right of action against the insurer(s), and the Customer must make the policy(ies) available for inspection to the Company upon request. At the Company’s request, all claims of the Customer against the insurers pursuant to these insurances shall be assigned to the Company or a right of pledge be granted to the Company.
9.4 If the Customer fails to meet its obligations, the Company shall be entitled forthwith without prior notice of default being required, to repossess Products which have been delivered under retention of title and which are still at the Customer’s premises. In so far as necessary, the Customer irrevocably authorises the Company to exercise this right of repossession.
9.5 In the event, and to the extent to which the Company has exercised the right of repossession referred to in the preceding sub-clause, the Agreement shall be dissolved in whole or for a proportionate part without judicial intervention being required, and without prejudice to the Company’s right to compensation of damage and costs. The Customer shall, in this case, be credited with the market value (which on no account can be higher than the original purchase price), reduced by the damage and costs incurred by the Company.
9.6 A Customer acting in a professional or business capacity shall, in the course of its business operations, be entitled to sell and deliver the Products delivered to it to third parties under retention of title. For sales such as these, the amount payable by the Customer to the Company for the Products resold by the Customer shall, if it is not already due and payable, become due and payable in full immediately.
9.7 The Customer shall always inform third parties of the Company’s retention of title. The Customer is also obliged, at the Company’s request, to inform the Company of the location of the Products and, if applicable, to whom they were sold.
Clause 10. Payment and set-off
10.1 Payment of the agreed price shall be made in accordance with the payment terms as set out in the Agreement.
10.2 All payments shall be made without any deduction or set-off in the currency stated on the invoice. If the Customer believes it has a rightful claim on the Company with regard to the performance of the Agreement, this will not release the Customer from its obligation to pay in the agreed manner.
10.3 If the Company has good reason to believe that the Customer will not fulfill its obligations, the Company shall have the right to require the Customer to provide an amount as security for its payment obligations which the Company deems sufficient before the Company commences or continues performance of the Agreement. The Company has the right to suspend performance of its obligations until the Customer has given such security.
10.4 If the Customer has not paid at the time or within the period specified in 10.1, it shall be in default by operation of law without prior notice of default being required, and shall owe statutory interest on the amount due and payable from the latest date on which payment should have been made, without prejudice to any other rights of the Company (including, specifically, the right to compensation of foreign exchange losses).
10.5 The Company has the right to offset any amounts which the Customer or any company affiliated with the Customer owes the Company (or any party affiliated with the Company), by any amounts which the Company owes the Customer or any company affiliated with it, regardless of whether these payments are due or not.
10.6 The Customer shall compensate the Company for any judicial or extrajudicial costs, including extrajudicial collection costs and costs of legal assistance which the Company incurs as a result of the Customer’s non-fulfillment or late or inadequate fulfillment of its obligations.
Clause 11. Returns and warranty
11.1 The Company will only accept claims for return that relate to the quantity, or the specifications of the Products if the Products do not conform to the sample(s) made available by the Company in any material respect. If the Customer does not require samples, it shall be considered to have agreed to the quality and condition of the Products beforehand.
11.2 Except as set out above under clause 11.1, the Company makes no representations or warranties of any kind concerning the Products, express or implied, including, without limitation, warranties of quality, (raw)material, use, fitness for a particular purpose, non-infringement, or the absence of latent or other defects, whether or not discoverable.
11.3 The Customer must inspect the Products immediately upon delivery. Claims for return in connection with the quantity or specifications must be made in writing within 72 hours of the delivery and include a full description of the alleged defects, in default of which any right to make a claim in these respects will lapse.
11.4 Any claim made by the Customer with regard to delivered Products shall also be extinguished if: (i) the Agreement concerns the delivery of used or damaged Products, (ii) the Products have been processed or for some other reason are (no longer) identifiable as originating from the Company, (iii) the defects were (partly) caused by normal wear and tear or by improper or incorrect handling, use, storage or maintenance of the Products, (iv) the Customer has not immediately given the Company the opportunity to investigate the claim for return and to fulfill its obligations, (v) the Customer has failed to comply with an obligation resting upon it or has failed to comply with it properly or in time.
11.5 The Customer may not enforce any rights relating to defects against the Company if it can also enforce rights relating to these defects directly against the manufacturer.
11.6 Without prejudice to the provisions of the preceding sub-clauses, in the event of a timely and justified claim for return, the Company shall only be obliged, at its option, to repair the Products, to replace them or to credit the Customer for the defective Products. These General Terms and Conditions shall apply in full to replacements.
Clause 12. Liability
12.1 The Company’s liability under the Agreement shall at all times be limited to the invoiced price for the Products.
12.2 The Company shall never be liable for trading loss, consequential loss or any other indirect loss.
12.3 The Customer shall not be liable for any infringement of a third party’s Intellectual Property Rights caused by the Customer’s use of the Products.
12.4 The limitations and exclusions of liability stipulated by the Company for itself in the sub-clauses above are also stipulated for and on behalf of its directors, employees and any other parties used by it in the context of the Agreement.
12.5 The Company will not qualify as a ‘producer’ as meant in Council Directive 85/374 of 25 July 1985 or any national legislation based thereupon or any similar legislation in any jurisdiction and shall in no way be responsible for the construction of the Products.
Clause 13. Force Majeure
13.1 The Company is released from his obligations and efforts included in the Agreement, including to deliver the Products on the original delivery date, and is allowed to extend the date of delivery, if a Force Majeure event prevents him from performing the Agreement. Should such Force Majeure event continue to prevent the Company from performing the Agreement, the Company may terminate the Agreement without any compensation being due.
Clause 14. (Anticipatory) breach
14.1 In the cases provided for by law, or in the event of the Customer’s non-performance, defective performance or delay in performance of one or more of its obligations under the Agreement, including the provisions of these General Terms and Conditions, or if there is serious doubt as to whether the Customer will be able to comply with its contractual obligations to the Company, or in the event of the Customer’s insolvency, suspension of payments, complete or partial stoppage of work, liquidation or the transfer or encumbrance of its business, including the transfer or pledging of an important part of its accounts receivable, or if any items of property belonging to the Customer are seized by way of provisional seizure or in execution of judgment, the Company shall have the right, without notice of default or judicial intervention, either to terminate, suspend the execution of the Agreement or to partially or wholly dissolve the Agreement, such without the Company being liable to any compensation or guarantee, and without prejudice to any of its other rights and remedies available.
Clause 15. Suspension and dissolution; consequences
15.1 In the event that the Company suspends fulfillment of its obligations, it shall have the right or, at the end of the suspension period, shall be obliged to decide whether to perform the Agreement or to wholly or partially dissolve it.
15.2 In case of suspension or dissolution pursuant to the provisions of the preceding sub-clause, the agreed price shall be due and payable forthwith under deduction of the costs saved by the Company because of the suspension. In case of dissolution, the Customer shall furthermore be obliged, after payment of the amount that is due pursuant to the preceding sentence, to take possession of the Products to which the payment relates, failing which the Company shall have the right to cause the Products to be stored at the risk and expense of the Customer, or to sell them at the expense of the Customer.
15.3 In the event that the Customer returns the Products it has received from the Company after the Agreement has been dissolved, the return shall at all times be at the risk and expense of the Customer until the Company has taken possession of the Products.
Clause 16. Intellectual Property Rights
16.1 All Intellectual Property Rights produced from or arising as a result of the performance of any Agreement shall, so far as not already vested, become the absolute property of the Company, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Company by the execution of appropriate instruments or the making of agreements with third parties.
Clause 17. Disputes; applicable law
17.1 The Agreement and any agreements arising out of, resulting from or relating to the Agreement shall be governed by the laws of The Netherlands. The applicability of the provisions of the Vienna Sales Convention is excluded, as is the applicability of any other future international regulations on the purchase of movable and corporeal Products whose applicability may be excluded.
17.2 Any disputes in connection with the Agreement or any agreements arising out of, resulting from or relating to it shall, in the first instance, be submitted to the exclusive jurisdiction of the district court in Amsterdam (The Netherlands).
17.3. If, however, the Customer is resident in or has its place of business in a country outside the EU with which the Netherlands have no convention for the enforcement of Dutch judgments, then, notwithstanding 17.2, all disputes relating to the Agreement or any further agreements arising from it will be exclusively settled by arbitration in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). In such cases, arbitration will be governed by Dutch law, take place in Amsterdam and the proceedings will be conducted in the English language. The arbitral tribunal will be composed of three arbitrators.
17.4 The Agreement and these General Terms and Conditions constitute the entire agreement between the Company and the Customer concerning the supply of the Products. The Customer agrees that he has no other rights of recourse against the Company other than those expressly stated in these General Terms and Conditions. These General Terms and Conditions shall apply whether or not the Customer has a cause of action based on negligence on the part of the Company or his representative.
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