Terms of service

TERMS OF SALE AND DELIVERY OF ORIENTEC TRADING B.V. IN MIJDRECHT

 

1. Applicability of these Terms
   

1. These terms will apply, with the exclusion of third-party terms, to all deliveries of goods and/or all services provided by Orientec Trading to the Buyer, including all related agreements and corresponding actions – both of a preparatory and executive nature – such as offers, order confirmations and deliveries.
2. Below, the “Buyer” will be understood to be the person/party to whom Orientec Trading makes an offer for the delivery/provision of goods and/or services, and the person/party with whom Orientec Trading concludes an agreement for the delivery/provision of goods and/or services. An “Agreement” will be understood to mean every agreement to which these General Terms have been declared applicable.
3. Terms to the contrary will only apply insofar as they are explicitly accepted by Orientec Trading in writing, and will only apply to the agreement(s) in question.
4. If any provision from these General Terms proves to be invalid for whatever reason, the other terms will continue to apply. The Parties will, in that event, negotiate on the contents of a new provision, which will approximate to the contents of the original provision as much as possible.

1. Offers
   
   1. All offers made by Orientec Trading are free of obligation at all times – both in terms of price, contents and execution, and in terms of delivery and availability – unless indicated otherwise in writing. If a quote contains an offer which is free of obligation and the Buyer accepts this offer, then Orientec Trading will be authorised to withdraw the offer within 2 working days of receipt of acceptance.2. The contents of all price lists, brochures and other particulars that are enclosed with an offer, have been specified as accurately as possible. The information in question is only binding upon Orientec Trading when it is explicitly confirmed by Orientec Trading in writing. Offers are based on the particulars which may be provided by the Buyer when making the request for the offer.

       3. Agreement

1. With regard to activities/deliveries for which no order confirmation is sent because of the nature and/or volume of such activities/deliveries, then the invoice will also be considered to be the order confirmation. Such an invoice is understood to be a full and accurate representation of the Agreement.
2. If Orientec Trading deems this necessary or helpful, it will be authorised to engage third parties for the proper fulfilment of the order given to Orientec Trading. The costs incurred in this regard will be passed on to the Buyer in accordance with the quotation provided by Orientec Trading.

1. Prices

1. All prices are excluding value added tax (Dutch: BTW) and other government-imposed levies
2. If the prices and/or rates of price-determining factors, such as wages, materials and currency differences, increase between the date of the Agreement’s conclusion and the date of delivery, then Orientec Trading will be authorised to adjust the price accordingly.
3. Unless indicated otherwise in the price list or offer, the prices stated by Orientec Trading are based on delivery ex factory/warehouse of Orientec Trading and are excluding the costs of loading and unloading, and insurance.

1. Delivery and Possession
   
   1. Unless indicated otherwise in the price list or offer, delivery will take place ex factory/warehouse of Orientec or any other storage location. The time of delivery will be understood to be the moment at which the ordered goods leave Orientec Trading’s business premises/warehouse.2. The Buyer is required to lend its co-operation to the delivery, and to take possession of the delivered goods. The delivery will be considered to have been refused if the ordered goods were offered for delivery, but such delivery proved to be impossible for whatever reason. The date on which the delivery is refused, will be considered the date of delivery.3. In the event of the Buyer’s refusal to take possession of the delivered goods, Orientec Trading reserves the right to pass on any costs possibly incurred in this regard (including the costs of storage and transport) to the Buyer.4. From the moment of delivery, including the moment referred to in paragraph B and C of this article, the delivered goods are at the expense and risk of the Buyer.5. Indicated delivery periods will never be considered to be deadlines. In case of non-timely delivery, Orientec Trading must be declared in default in writing, and offered a reasonable term to redeliver the goods.6. If there are grounds to suspect that the Buyer cannot fulfil its obligations to pay, Orientec Trading reserves the right to deliver orders C.O.D.

1. Transport/Risk
   
   
   1. If the Buyer has not given further instructions to Orientec Trading as to the manner of transportation, shipment, packaging, etc., this will be decided by Orientec Trading B.V., without accepting any liability in this regard.
   2. Even when delivery carriage paid has been agreed upon, the shipment of goods will take place at the expense and risk of the Buyer at all times, even when the carrier stipulates that the consignment notes, transportation documents, etc., must contain the clause that all damage caused to the goods in transit, will be at the expense and risk of the consignor.
   3. The Buyer is liable for all damage (such as transportation damage and damage caused by water, fire and theft) which occurs during transportation of the goods. The Buyer must take out adequate insurance for this risk.

1. Packaging
   
   
   1. Unless explicitly agreed otherwise in writing, the products – if necessary and such at the exclusive discretion of Orientec Trading – will be provided with the packaging in which the products are normally sold.
      Unless otherwise agreed with the Buyer in writing, Orientec Trading will not take back the packaging, unless it consists of special transportation trolleys, cases or bags. Orientec Trading will remain the owner of such special packaging, which will be taken back by Orientec Trading at all times. After delivery, the Buyer must render this packaging available to Orientec Trading again.
   2. Both the transportation and consumer packaging must meet existing and future statutory packaging regulations, and will bear marks confirming this. In the event that the Buyer decides to return the packaging for the purpose of reuse or to have it processed for reuse, then the costs incurred in this regard will be at the expense of the Buyer.
      
      
2. Payment
   
   
   1. Payment must take place within 21 days of the invoice date, in the absence of which the Buyer will be in default by operation of law, without any notice of default being required.
   2. From the time that the Buyer is in default, up to the date of full settlement, the Buyer will owe Orientec Trading interest for overdue payment, amounting to 1% per month or any part thereof, without prejudice to Orientec Trading’s right to full damages in accordance with the law.
   3. The Buyer is not entitled to offset claims against Orientec Trading.
   4. All costs incurred, both judicially and extra-judicially, for the collection of the sums due by the Buyer, are at the expense of the Buyer. The sum of the collection costs due to Orientec Trading will be calculated in accordance with the collection rate of the Netherlands Bar Association.
   5. Upon entering the Agreement or thereafter, the Buyer will invariably be required – upon first request by Orientec Trading – to furnish security with regard to its obligations to pay and any other obligations arising from the Agreement. Orientec Trading is authorised to suspend its obligations in anticipation of the furnishing of such security.
   6. Payments by the Buyer to Orientec Trading will invariably be considered to first serve as settlement of the interest and/or costs due, and then as settlement of the oldest outstanding invoices.

1. Retention of Title
   
   1. Without prejudice to the other provisions set out in these Terms, the title to the goods delivered by Orientec Trading to the Buyer remains with Orientec Trading up to the moment of full payment of all that which the Buyer owes to Orientec Trading pursuant to all written agreement(s) concluded between Orientec Trading and the Buyer on which such delivery/deliveries are based, including all joint (balance sheet) liabilities, and all Orientec Trading’s claims because of the Buyer’s shortcomings (including interest, costs and penalties) as regards such agreement(s).
   2. The Buyer is not permitted to pledge the goods delivered by Orientec Trading, or to encumber them with a restrictive right in any other way, as long as such goods are subject to retention of title.
   3. Pursuant to the provisions set out in this article, Orientec Trading is authorised – without any further notice of default being required – to take back (or cause to be taken back) the delivered goods from the Buyer or its keepers, if the Buyer fails to fulfil its obligations. The Buyer is required to lend its co-operation to the aforementioned retrieval of the goods, such on penalty of payment of a penalty to Orientec Trading amounting to € 5000 for each day that the Buyer is/continues to be in default, if this is explicitly claimed by Orientec Trading and without prejudice to Orientec Trading’s other rights in law.
   4. If other parties lay claim to goods of which certain parts are subject to the retention of title, the Buyer must notify such parties of this retention of title, as provided for above, and must not proceed with the delivery of such goods until written permission has been obtained from Orientec Trading.

1. Warranty

1. 1.  Orientec Trading warrants that its delivered products have the qualities required for the normal use of such products, and the qualities required for any specific use that has been explicitly stated in an Agreement. This warranty applies for a period of 12 months.
2. The Buyer must state (or have stated) any possible visible defects of, or damage to, the delivered goods and/or the packaging, which become manifest upon delivery, on the delivery note, the invoice and/or the transportation document(s). In the absence thereof, the Buyer is considered to have taken delivery of, and accepted, the delivered goods.
3. If any product delivered by Orientec Trading fails to meet this warranty, and this could not be reasonably established within the aforementioned term, the Buyer must notify Orientec Trading of this in writing within 30 days after the Buyer has taken or should have taken cognizance of this defect.
4. Orientec Trading will in that event have the choice of either repairing or replacing the faulty product, unless the defect does not justify this.
5. The Buyer cannot invoke this warranty, if the defect was caused by injudicious or inappropriate use of the product.
6. Returning the delivered goods is only permitted after prior written permission from Orientec Trading, subject to the terms to be stipulated by Orientec Trading.

1. Suspension and Dissolution
   
   1. Orientec Trading is authorised to suspend the fulfilment of its obligations, or dissolve the agreement partially or entirely, if:
   – the Buyers fails to (fully) fulfil its obligations arising from the Agreement;
   Orientec Trading receives information after the conclusion of the Agreement about circumstances that constitute good grounds to fear that the Buyer will not fulfil its obligations. If there is good reason to fear that the Buyer will only partially fulfil its obligations, or will do so improperly, the suspension is only permitted insofar as is justified by the shortcoming;
   –     the Buyer was asked, upon the Agreement’s conclusion, to provide security for the fulfilment of its obligations arising from the Agreement, and such security remains unforthcoming or is inadequate.  
   2. Furthermore, Orientec Trading is authorised to dissolve (or have dissolved) the Agreement if circumstances present themselves that are of such a nature that fulfilment of the agreement can no longer be required in all reasonableness and fairness, or if other circumstances present themselves which are of such a nature that it can no longer be reasonably expected to let the Agreement continue in an unchanged form.
   3. If the Agreement is (partially) dissolved, Orientec Trading’s claims against the Buyer will be due on demand. If Orientec Trading suspends the fulfilment of the obligations, it will retain its claims arising from the law and the Agreement.
   4. Orientec Trading will retain the right to claim damages at all times.
   
   12. Industrial and/or Intellectual Property Rights
   1. The Buyer is not permitted to remove or alter any marks, trade names, patents or other rights from the goods delivered by Orientec Trading, including indications as to the confidential nature and secrecy of the delivered goods. The Buyer must impose these provisions on its own buyer by means of a third party clause.
   2. Orientec Trading does not accept any liability for infringements on the intellectual or industrial property rights of third parties, caused by modifications of the delivered goods without the permission of Orientec Trading.
   
   13. Force Majeure

1. If Orientec Trading is prevented from fulfilling the Agreement (further) because of force majeure of a permanent or temporary nature, Orientec Trading is authorised – without any obligation to pay damages – to dissolve the Agreement partially or entirely by means of a written notice to that end, and without any judicial intervention being required. This will not prejudice Orientec Trading’s right to payment for goods and/or services already provided by Orientec Trading before the force majeure occurred. Alternatively, Orientec Trading will be authorised to suspend the fulfilment of the Agreement. In the event of such a suspension, Orientec Trading will still be authorised to dissolve the Agreement partially or entirely.2. Force majeure will be understood to mean all those circumstances that prevent Orientec Trading temporarily or permanently from the fulfilment of its obligations, such as strikes, transport difficulties, fire, and government measures, including at any rate, import and export bans, quota restrictions and interrupted business operations at Orientec Trading and/or its suppliers, and any breach of contract on behalf of its suppliers that prevents Orientec Trading from fulfilling its obligations vis-à-vis the Buyer (any longer).

1. Liability

1. As regards the products delivered by Orientec Trading, its liability vis-à-vis the Buyer is limited to the stipulations included in Art. 10 of these General Terms with regard to the warranty. If Orientec Trading is liable for immediate damage, such liability will in any event be limited to the value of the goods delivered.
2. Orientec Trading – in connection with the delivered products – will never have liability for indirect damage, including consequential damage, loss of profit, lost savings and damage caused by the stagnation of business operations.
3. In all events, Orientec Trading’s liability will invariably be limited to the sum eligible for payment by its insurance company in such an event.
4. Insofar as Orientec Trading cannot be considered to be the manufacturer pursuant to Article 6:185 of the Netherlands Civil Code ff., the Buyer must apply to the manufacturer directly with regard to personal injury or other damage suffered because of a defect in the goods delivered by Orientec Trading. Orientec Trading is not liable for such damage, unless it involves products that Orientec Trading imported into the EC from outside the EC, or if it cannot be established who the manufacturer is and Orientec Trading failed to inform the Buyer of the manufacturer’s identity within a period of 30 days after the Buyer filed the claim.
5. The above limitations do not apply if the damage was caused by the intentional acts or omissions/intentional recklessness of Orientec Trading or its executives.

1. Applicable Law

1. All agreements as referred to in Article 1.B. are governed by the law of the Netherlands, such with the exclusion of the Vienna Sales Convention (CISG) and possible other future international regulations regarding the sale of moveable physical goods, for which the parties can exclude applicability.
2. All disputes that result from, or are related to, the Agreement, will be brought exclusively before the competent Court in the Utrecht Court District, unless Orientec Trading – as the plaintiff – prefers a Court in a different Court District.