General Conditions Of Sales
General Terms and Conditions
Hunter Douglas Europe B.V., with its registered office in Rotterdam andwith offices at Piekstraat 2, 3071 EL Rotterdam. These terms and conditions have been filed with the Chamber of Commerce in Rotterdam.
General conditions of sale for all Hunter Douglas Project sales except for QuadroClad, Sandwich Wall, Single Skin Cassette and Multiple Panel Facades. General conditions of sale for these products can be found here.
1. Definitions in these Terms and Conditions:
a. Hunter Douglas Europe B.V. means the user of these General Terms and Conditions.
b. Customer means the other party of Hunter Douglas Europe B.V., legal ,company or natural person, who has accepted in writing or otherwise the validity of these General Terms and Conditions.
c. A circumstance beyond the control of Hunter Douglas Europe B.V. means fire and
water damage, weather conditions, employee (representative organization) actions,
machine defects, war, disasters, energy failures, supplier delays etc.
2.1 These General Terms and Conditions apply and form an integral part of all offers and agreements between Hunter Douglas Europe B.V. and its Customers, in which Hunter Douglas Europe B.V. delivers goods and/or services, even if these goods and/or services have not been further described in the present General Terms and Conditions.
2.2 Variations to these General Terms and Conditions are valid only if expressly agreed by parties in writing. Variations to provisions are valid only in respect of agreements for which such have been accepted. In such case, the remaining provisions of the General Terms and Conditions of Hunter Douglas Europe B.V. shall remain in full force.
2.3 Standard terms and conditions of Customer are valid only when expressly accepted in writing by Hunter Douglas Europe B.V.
3. Offer and Agreement
3.1 Offers are made by Hunter Douglas Europe B.V., free of any commitment, unless expressly provided otherwise.
3.2 If a Customer accepts an offer made without any commitment by Hunter
Douglas Europe B.V., Hunter Douglas Europe B.V. may nevertheless revoke the
offer within 7 business days after receipt of
3.3 Agreements are concluded only after express acceptance or confirmation by Hunter Douglas Europe B.V. Acceptance shall be made by means of a written order confirmation from Hunter Douglas Europe B.V. or by the actual performance by Hunter Douglas Europe B.V. of the agreement. The order confirmation is considered to be a true and complete representation of the content of the agreement.
3.4 If an order for the delivery of goods or performance of services is not given to Hunter Douglas Europe B.V., it may charge Customer all costs that it has had to incur in order to be able to make its offer.
4.1 The prices stated in offers and agreements of Hunter Douglas Europe B.V. do not include VAT, import duties, taxes or other government charges as well as transport and insurance costs, unless expressly agreed otherwise in writing.
4.2 All prices are in Euros, unless indicated otherwise by further notice from Hunter Douglas Europe B.V.
4.3 Hunter Douglas Europe B.V. may alter the agreed price if and to the extent that circumstances occur, including increases in costs and changes in currencies, which could not have been reasonably foreseen when entering into the agreement. In the event of a price increase of more than 10% Customer may terminate the agreement, to the extent that Hunter Douglas Europe B.V. has not yet performed.
4.4 The content of brochures, printed matter and such does not bind Hunter Douglas Europe B.V., unless express reference is made thereto in the agreement.
5.1 Hunter Douglas Europe B.V. determines terms of payment on the basis of the nature and size of the order.
5.2 Unless expressly agreed otherwise in writing, payments must be
issued within a period of thirty days after invoice date.
5.3 If (partial) payment is not made on time, Customer is in default by operation of law and the entire (remainder of the) claim is immediately due and payable.
5.4 Hunter Douglas Europe B.V. may require at all times payment in advance or further security from Customer.
5.5 If Hunter Douglas Europe B.V. has partially complied with its obligations, it is entitled to a proportional part of the agreed price.
5.6 The Customer?s right to suspend or set off payments to Hunter Douglas Europe B.V., regardless of reason, is expressly excluded.
6. Extrajudicial Costs and Interest
6.1 As from the moment Customer is in default, Customer shall pay interest in the amount of the greater of (a) 1% for each month or part thereof or (b) the statutory rate or ?wettelijke rente? (as further described in EC Directive 2000/35 or Article 6:120 of the Burgerlijk Wetboek, as may be amended) on the outstanding invoice amount.
6.2 If in spite of written notice Customer again fails to comply with his/its payment obligations to Hunter Douglas Europe B.V. and Hunter Douglas Europe B.V. gives the collection of the payment to another agency, Customer is due to pay extrajudicial costs for an amount of 15% of the outstanding invoice amount, subject to a minimum of ? 450, -.
6.3 Payments made by Customer shall always serve in the first instance for payment of interest and costs due and subsequently for payment of the longest outstanding invoice, even if Customer indicates otherwise in his/its payment order.
7.1 Hunter Douglas Europe B.V. may suspend performance of the agreement if Customer fails to make (timely) payment, fails to provide at the request of Hunter Douglas Europe B.V. security within the meaning of Article 5.4 of these terms and conditions or fails in any other way to comply with his/its obligations to Hunter Douglas Europe B.V.
7.2 Hunter Douglas Europe B.V. may also suspend compliance with the agreement, without being in default, if due to a circumstance beyond the control of Hunter Douglas Europe B.V. and/or due to amendment of the (terms and conditions of the) agreement Hunter Douglas Europe B.V. cannot be required to (timely) comply with the agreement. Delivery and Risk;
8. Special Made-to-Measure Orders
8.1 Delivery times given are to be regarded as approximate and shall in no event be regarded as deadlines, unless such has been expressly agreed in writing. In the event of non-timely delivery Customer must notify Hunter Douglas Europe B.V. in writing of its default, and a reasonable period of at least 7 business days must be set to as yet comply.
8.2 Customer is obliged to fully cooperate with the delivery. Customer is in default without further notice if after the first request of Hunter Douglas Europe B.V. Customer fails to take up goods and/or services to be delivered by Hunter Douglas Europe B.V.
8.3 Unless expressly agreed otherwise, the delivery is made to the place where Customer conducts his/its business.
8.4 Loss of and damage to things, which the agreement between Customer and Hunter Douglas Europe B.V. deals with, are for the risk of Customer the moment such have been placed in the actual possession of (an agent of) Customer or from the moment Customer refuses to cooperate with the delivery.
8.5 If the delivery of the goods to be delivered by Hunter Douglas Europe B.V. is delayed due to a circumstance for the account of Customer, Customer is obliged to compensate the damage incurred by Hunter Douglas Europe B.V. as a result thereof, including costs of transport and storage.
8.6 In the case of Customer specific, ?made?to?measure order? or nonstock products that Customer orders, there is a possible deviation in actual production and delivery of products ordered by Customer, by a margin of +/- 10% of the ordered quantity. The actual amount produced will be invoiced to the Customer. Nevertheless, although Hunter Douglas Europe B.V. cannot guaranty the exact quantity ordered for such products, Hunter Douglas Europe B.V. shall use commercially reasonable efforts to produce and deliver such nonstandard order. Further information regarding deviations may be obtained by contacting Customer Order Service Information Department.
9.1 Customer is obliged within 3 business days after delivery to inspect the goods delivered by Hunter Douglas Europe B.V. for defects or for deviations from that which has been agreed in writing and to immediately notify Hunter Douglas Europe B.V. in writing of any deviations or defects.
9.2 Customer may not assert any further right against Hunter Douglas Europe B.V. if any deviations or defects have not been notified in writing to Hunter Douglas Europe B.V. within a period of 3 business days after the time that the deviation(s) or defect(s) has/have been detected or could have been detected.
9.3 Customer may not assert in any case any further right if he/it has had the things delivered by Hunter Douglas Europe B.V. put into use, processed or treated or has delivered such things or given such things for use to third parties.
9.4 In addition to this, Customer may not invoke defective delivery or compliance if Customer has not given Hunter Douglas Europe B.V. the opportunity to repair, supplement or replace any defects or deviations, at the option of Hunter Douglas Europe B.V.
10.1 If circumstances occur of which Hunter Douglas Europe B.V. was unaware on conclusion of the agreement and as a result of which compliance with the agreement is not possible, Hunter Douglas Europe B.V. may demand of Customer that the content of the agreement is amended in such a way as to enable performance.
10.2 Customer may terminate the agreement only if Hunter Douglas Europe B.V.
has imputably failed to comply with its obligations and has been notified of its
default in writing by Customer, and Hunter
Douglas Europe B.V. has been given a reasonable period of time to remedy this failure.
10.3 Hunter Douglas Europe B.V. may terminate the agreement in part or in whole without prejudice to its right to compensation of costs and loss of profit and without prior notice or judicial intervention if:
? Customer is granted a moratorium of payments, files a petition for
bankruptcy, debtor relief or other protection from creditors, or Customer?s
enterprise is liquidated (other than on behalf of reorganization or combination
of enterprises or assets).
? Customer fails to provide the security required by HunterDouglas Europe B.V. as referred to in Article 5.4 of these General Terms and Conditions.
? Customer fails to comply with any other of his/its obligation arising from the agreement.
10.4 In the event of partial termination Customer cannot claim annulment of performances already made by Hunter Douglas Europe B.V. and Hunter Douglas Europe B.V. shall be fully entitled to receive payment in this respect.
11.1 Hunter Douglas Europe B.V. is only liable for damage that is the direct and exclusive consequence of intent or gross negligence of Hunter Douglas Europe B.V. and to the extent that it has been properly notified in writing of its default by Customer, and Hunter Douglas Europe B.V. has been given a reasonable period of time to provide repair or replacement.
11.2 Hunter Douglas Europe B.V. does not accept in any case whatsoever liability for trading loss or other indirect damage within the broadest sense of that term incurred by Customer, including consequential loss, loss of profits and cost savings, regardless of cause.
11.3 The total liability of Hunter Douglas Europe B.V. does not exceed in any case whatsoever compensation of the damage up to an amount equal to the price excluding VAT stipulated for the agreement concerned, up to a maximum of 10% of the order amount, excluding sales taxes.
12 Retention of Property Rights
12.1 Hunter Douglas Europe B.V. remains owner of the goods delivered by it or to be delivered by it until Customer has paid all claims of Hunter Douglas Europe B.V. in respect of the consideration, including interest and extrajudicial costs, arising from the order or agreement. Until the Customer has paid all outstanding claims, including interest and extrajudicial costs, the Customer has the right to dispose of the purchased goods under the retention of title and property rights of Hunter Douglas Europe B.V., to transfer the goods in whole or in part to third parties only under the following conditions that
a. this right of disposal is granted to the Customer only if it is necessary for the Customer, in its normal course of business, to operate,
b. this right of disposal is granted to the Customer only if the Customer demands and receives immediate payment from its Customers, and
c. the Customer never has the right or authority to charge, encumber, pledge or allow a lien to be placed upon the goods that have been sold under the retention of title and property rights. The Customer covenants to assign or pledge, upon demand and at the choice of Hunter Douglas Europe B.V., all accounts receivable that are created or to be created from the sale of goods under the retention of title of Hunter Douglas Europe B.V., to third parties.
13. Confidential Information
13.1 Hunter Douglas Europe B.V. as well as Customer warrant that all information, which is exchanged between parties within the framework of the agreement concluded between parties, is of a confidential nature and shall remain secret. Information is regarded in any case confidential if this information has been designated as such by one of the parties.
14 Intellectual/Industrial Property
14.1 Customer may not remove, alter or conceal any designations concerning trademarks, trade names or other rights of intellectual and/or industrial property from or of the things delivered by HunterDouglas Europe B.V.
14.2 All rights of intellectual or industrial property on things delivered to Customer by Hunter Douglas Europe B.V., including drawings, descriptions, advertising matter etc., remain at all times the property of Hunter Douglas Europe B.V. and may not be reproduced, published or released in any other way to third parties without the express written consent of Hunter Douglas Europe B.V.
15.1 In the case of a breach of Article 13 and/or 14 of these terms and conditions and/or in all other cases in which Customer fails to comply with his/its obligations to Hunter Douglas Europe B.V., Customer shall forfeit to Hunter Douglas Europe B.V. an immediately due and payable penalty of 10% of the ordered amount not subject to moderation by the court or set off, without prejudice to the right of Hunter Douglas Europe B.V. to seek compliance or full damages.
16 Final Provisions
16.1 If any provision of these General Terms and Conditions is null and void or unenforceable, the remaining provisions shall remain in full force.
16.2 All agreements as well as all disputes arising therefrom shall be exclusively governed by the laws of The Netherlands.
16.3 All disputes arising from offers and agreements between Hunter Douglas
Europe B.V. and Customer shall be submitted to the adjudication of the District
Court (Arrondissementsrechtbank) in Rotterdam, unless the subject matter of the
dispute falls under the jurisdiction of the Sub-district Court Judge
General Terms and
QuadroClad, Sandwich Wall, Single Skin Cassette and Multiple Panel Facades.
All quotations, estimates, negotiations and orders shall be deemed to be made and all offers can only be accepted subject to the following conditions.
In these terms and conditions:-
"CISG" shall have the meaning set forth in section 18 below.
"Company" means Hunter Douglas Construction Elements B.V. Industriepark 17, NL-9351 PA Leek.
"Contract" means the contract between the parties for the sale and purchase of the Goods, the terms and conditions of which are set out below.
"Goods" means the goods, which are the subject of the order form submitted
to the company .
"Purchaser" means the purchaser specified on the order form submitted to the Company
for the Goods
2. Formation of Contract
Notwithstanding Art. 14ff CISG, no contract shall come into effect until the Company sends to the Purchaser the Company?s acceptance of the order.
3.1 The Purchaser shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Purchaser, and for giving the Company any necessary information relating to the Goods within sufficient time to enable the Company to perform the Contract in accordance with these terms and conditions.
3.2 subject to section 3.3, the Goods will comply with the specification, if any, agreed in writing between the Company and the Purchaser for the purpose of the Contract and with which the Goods are expressly described as complying; provided that the Company shall be under no liability in respect of minor departures from colour, patterns or descriptions, for natural fading, or for any manufacturing variations within the tolerance set out in the Company's published technical specifications.
3.3 The Company reserves the right to make any changes in the specification of the Goods
which are required to conform with any applicable safety or other statutory requirements or which do not materially affect either quality or performance or to incorporate technical improvements.
3.4 With certain colours, especially metallic, it is not possible with
techniques to achieve the same colour in different production runs. The Purchaser should order all necessary Goods (e.g., panels) in the same order that are to be mounted or installed together at the same site. Should the Goods be ordered at separate times (and therefore be produced in separate production runs), the Company is not responsible for any ensuing differentiation in colour. Additionally, minor colour deviations do not constitute a defect in the Goods unless such deviation is so extreme that the appearance of the final end product using the Goods as contractually planned is not reasonably acceptable and unreasonably diminished in value. The Company does not warrant that the colour of the Goods conforms to the picture in our brochure; the Company warrants only conformance with RAL values or other industry standard colour description.
3.5 Prices are based upon a single order for delivery to site in one
consignment. Any later
additions or replacements will be charged at standard rates pertaining to individual quantities including small order set up costs and minimum delivery charges.
3.6 It is the sole responsibility of the Purchaser to check and validate the specifics of any quotation and to ensure that the application of the ordered Goods including any typical details, specifications, spanning information and quantities etc., given by the Company are checked and validated and are suitable for the intended construction. The Company takes no responsibility for errors or omissions in interpretation of information given by other parties.
4.1 Save as provided in these conditions, the warranties as to description, condition, quality and suitability or fitness for purpose in Art. 35 CISG are hereby excluded.
4.2 Without prejudice to section 4.1 no undertaking contained in a NEN, DIN, British Standard, national edition of European Standard ISO or other standard or technical specification as to the suitability of the Goods for any purpose shall give rise to any legal liability.
4.3 Any advice or recommendation given by the Company or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Goods which is not expressly confirmed in writing by the Company is followed or acted upon entirely at the Purchaser's own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed in writing.
4.4 The Company's employees or agents are not authorised to make any
concerning the Goods unless such representations are confirmed by the Company in writing. In entering into the Contract, the Purchaser acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed.
4.5 Any typographical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
5.1 Neither variation nor departure from these conditions shall be permitted except where specific written confirmation of such a variation or departure is given by the Company to the Purchaser.
5.2 The rights of the Company shall not be prejudiced or restricted by any indulgence or forbearance extended by it to the Purchaser and no waiver by the Company in respect of any breach by the Purchaser shall operate as a waiver in respect of any subsequent breach by the Purchaser.
No Contract which has been entered into may be cancelled by the Purchaser except with the agreement in writing of the Company (to be given or withheld at the absolute discretion of the Company) and on the terms that the Purchaser shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
7.1 The price of the Goods shall be the Company's quoted price on the order form. All prices quoted are valid, unless otherwise expressly stated in writing by the Company, for 30 days only or until earlier acceptance by the Purchaser, after which time they may be altered by the Company without giving notice to the Purchaser.
7.2 The Company reserves the right, by giving notice to the Purchaser at any time before delivery, to increase the price of the Goods to reflect any increase in the costs to the Company which is due to any factor beyond the control of the Company or any change in delivery dates, quantities or specifications for the Goods requested by the Purchaser or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions. In the event of a price increase of more than 10%, the Purchaser may terminate the Contract to the extent the Company has not yet incurred costs (e.g., purchased raw materials) or otherwise performed the Contract.
7.3 Except as otherwise stated under the terms of any quotation or in any price list of the Company and unless otherwise agreed in writing between the Company and the Purchaser, the price includes the packaging and delivery of the Goods by the Company to the building site or other place of delivery stated in the order form; additional freight associated with shipment to an intermediate or different location shall be charged separately to the Purchaser.
7.2.1 The prices stated in offers and agreements do not include value added taxes, import duties, taxes or other government charges as well as transport and insurance costs, unless expressly agreed otherwise in writing.
7.3 Where the Company charges the costs of palettes and returnable containers to the Purchaser in addition to the price of the Goods, full credit will be given to the Purchaser provided that such palettes and returnable containers are returned undamaged to the Company by the due payment date.
8.1 Subject to these conditions, the Company shall be entitled to invoice the Purchaser for the price of the Goods on or at any time after delivery of the Goods, unless, in the case of the Purchaser taking delivery from the Company in accordance with section 11.1(i) below, the Purchaser wrongfully fails to take delivery of the Goods, in which case the Company shall be entitled to invoice the Purchaser for the price at any time after the Company has notified the Purchaser that the Goods are ready for collection.
8.2 Subject to section 8.3 below, the credit status payment for the
Goods shall be on a net
30 day basis.
8.3 In the case of materials which are made especially to order, payment terms shall be:
(i) one third of the total price payable upon acceptance by the Company of the order form submitted by the Purchaser;
(ii) one third of the price payable immediately prior to delivery; and
(iii) one third of the price payable 30 days from receipt by the Purchaser of the Goods.
The provisions in the Company?s confirmation concerning changes in creditworthiness shall apply notwithstanding any provision of these general terms and conditions.
8.4 Where delivery is made by instalments, the Purchaser shall be obliged to pay for each instalment separately if the Company so requires by delivering an invoice to the Purchaser.
8.5 For the purposes of these conditions, payment shall be deemed to have been made and received when the sum in question has been credited to the Company's bank account.
8.6 Time or time stated for payment hereunder shall be deemed to be of
the essence of the
8.7 The Purchaser shall not be entitled to withhold payment of any amount payable under the Contract to the Company or set off other amounts due to the Purchaser except with the written consent of the Company.
9 Failure to Pay
9.1 If for any reason whatsoever the Purchaser fails to make any payment on the due date ordates specified by section 8 above, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled, at its sole discretion, to:
(i) cancel the Contract or suspend delivery or collection of the Goods by
(ii) appropriate any payment made by the Purchaser in respect of such of the Goods (or of goods supplied under any other contract between the Purchaser and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser); and
(iii) charge the Purchaser interest (both before and after any judgement) on the amount or amounts unpaid from time to time at the statutory rate (as described in EC Directive 2000/35 or Article 6:120 of the Dutch civil code, as may be amended);
(iv) suspend delivery to the Purchaser or collection by the Purchaser of any other goods (not forming part of the subject matter of the Contract), which the Company has sold or agreed to sell to the Purchaser.
10 Risk and Title
10.1 Except where delivery terms in the order (e.g. Incoterms) call for passage of risk at a different time, risk of loss of, or damage to, the Goods shall pass to the Purchaser on delivery of the Goods to it by the Company.
10.2 The Company and the Purchaser expressly agree that until the Company has
been paid in full for the Goods or any other goods comprised in any other sale
contract between them, or until all other monies due from the Purchaser to the
Company on any sum accounted for has been paid in full:
(i) legal title and beneficial ownership of the Goods remain with the Company;
(ii) provided the Goods are still in existence and have not been re-sold, the Company shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company and, if the Purchaser fails to do so, to enter upon any premises of the Purchaser or any third party where the Goods are stored and repossess the Goods;
(iii) notwithstanding any repossession or removal of the Goods by the Company from the Purchaser, the Purchaser shall remain liable to pay the price for the Goods and any interest accruing thereon;
(iv) any Goods repossessed by the Company may be sold by the Company and the proceeds of the sale set off against the amount due to the Company from the Purchaser in respect of the Goods. Any balance remaining of the proceeds of the sale should be paid to the Purchaser but if the proceeds of sale are not sufficient the Purchaser shall remain liable to pay to the Company the amount remaining due together with any interest accruing thereon;
(v) the Purchaser shall hold the Goods as the Company's fiduciary agent and bailee, and shall protect and insure and store or otherwise keep the Goods in a safe and proper manner in internal storage yards and in such a way as clearly to indicate to the Purchaser and third parties at all times that the Goods are owned by the Company and that the price for the Goods has yet to be paid by the Purchaser and shall not remove, obscure or delete any mark or label placed on the Goods by the Company which may enable the Goods to be so identified, but shall be entitled to re-sell as the Company's agent or use the Goods in the ordinary course of its business and on normal commercial terms provided that on any such sub-sale:-
(a) the Purchaser acting as agent has no authority to bind the Company vis-à-vis the sub-purchasers;
(b) on request by the Company, the Purchaser shall hold the whole of the proceeds of sub-sale in a separate bank account, details of which shall be provided to the Company;
(c) on request by the Company, the Purchaser shall provide the Company with details of all sub-sales, to include the price, quantity and identity of sub-purchaser; and
(d) the Purchaser shall, on the request of the Company, assign to the Company all rights, which the Purchaser may have against the sub-purchaser. The Purchaser shall indemnify and keep indemnified the Company in respect of any proceeding, action or claim of any nature whatsoever made or brought by any sub-purchaser against the Company in respect of the Goods;
(e) any failure by the Company to enforce these provisions, whether or not after knowledge of any breach, shall not constitute waiver of such breach.
11.1 Delivery of the Goods shall be made (i) where the Purchaser?s order specifies the building site to which the Goods should be delivered, by delivery by the Company at any time during ordinary hours of construction to the building site, and (ii) where the Company agrees in writing to deliver the Goods to some other place or to store the Goods for the Purchaser, by the Company delivering the Goods to that place and placing the Goods in storage.
11.2 Any dates quoted for delivery of the Goods are approximate only. The aggregate liability of the Company, its officers, employees and agents to the Purchaser arising out of any delay to delivery of the Goods howsoever caused shall in no circumstances exceed one per cent of the contract price per week (commencing the first week after the date for delivery set forth in the order) up to a maximum of twenty weeks.
11.3 Time for delivery shall not be of the essence, unless expressly agreed
by the Company
11.4 The Goods may be delivered by the Company in advance of the quoted delivery date
upon the Company giving reasonable notice to the Purchaser.
11.5 Where the Goods are to be delivered by instalments, Art. 73 CISG shall
connection with the instalment concerned.
11.6 If the Purchaser fails to collect the Goods or fails to give the Company adequate delivery instructions or otherwise to accept delivery (otherwise than by reason of the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may store the Goods until actual delivery and charge the Purchaser its reasonable costs (including insurance) of such storage or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling costs) charge the Purchaser for any shortfall below the price under the Contract or, where the Purchaser has paid the price of the Goods to the Company, the Company may account to the Purchaser for the excess over the price under the Contract.
11.7 The Purchaser shall inspect and/or test the Goods within 30 days of delivery or if the Goods are to be installed prior to 30 days after delivery, within 72 hours of the proposed installation. If the Purchaser does not inspect or test the Goods within the time specified or if:
(i) within 30 days after delivery of the Goods, and prior to their use or re-sale, the Purchaser does not serve upon the Company a written notice specifying any defect in the quality or state of the Goods or other respect in which the Goods are not in accordance with the Contract which would be apparent to a reasonable purchaser upon a careful inspection or testing or stating why the Goods are not otherwise in accordance with the Contract and does not provide to the Company a reasonable opportunity to inspect and test the Goods before any making good or replacement is undertaken; or
(ii) upon discovery of a defect in the quality or state of the Goods or other respect in which the Goods are not in accordance with the Contract which would not be apparent to a reasonable purchaser upon careful inspection or testing, the Purchaser does not serve upon the Company written notice of such defect or other respect within seven days of its discovery and in any event not more than 12 months after receipt of the Goods, specifying the matters complained of and allowing the Company a reasonable opportunity to inspect the Goods before any making good or replacement is undertaken. The Purchaser shall not be excused from providing such opportunity by reason only of the incorporation of the Goods in the property of a third party or by the location of the Goods in, upon or under the premises or land of a third party then the Purchaser shall be deemed to have accepted the Goods and it shall be conclusively deemed that the Goods are in accordance with the Contract, and the Purchaser shall not be entitled to reject the Goods on the grounds of anything which such testing or inspection reveals or would have revealed.
12 Exclusions and Limitations of Liability
12.1 Save in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable to the Purchaser by reason of any representation or any implied warranty, condition or other term or duty at common law, or under the express terms of the Contract, for any indirect, pure economic, special or consequential loss or damage (including, without limitation, any actual or expected loss of profit, loss of revenue, loss of goodwill or loss of opportunity) whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) arising out of or in connection with the supply of the Goods or their use or resale by the Purchaser save as expressly provided in this Contract.
12.2 Notwithstanding section 12.1 above, the aggregate liability of the Company, its officers, employees and agents to the Purchaser arising out of any act, omission, event or circumstance or series of acts, omissions, events or circumstances relating to these conditions shall in no circumstances exceed the contract price.
13 Defective Goods
Without prejudice to the terms of section 3 above the Company may at its own discretion replace such of the Goods as are to its satisfaction shown to be defective, provided that:
13.1 written claim in accordance with section 11.7(i) above is made to the
30 days of delivery of the Goods;
13.2 this condition shall not require the Company to replace any Goods damaged in transit;
13.3 the Company may, at its sole discretion, satisfy its obligations to the Purchaser under this condition by either repairing the defective Goods or by refunding the purchase price or a proportion thereof in respect of the defective Goods;
13.4 where the Company elects to refund the purchase price or a proportion thereof under section 13.3 above the Purchaser shall hold the defective Goods concerned to the order of the Company for a period not exceeding three months;
13.5 the Company shall be under no liability in respect of any defect in the
Goods arising from
any drawing, design or specifications supplied by the Purchaser; and
13.6 the Company shall be under no liability in respect of any defect arising from fair wear and tear, unlawful damage, negligence, improper storage, atmosphere conditions, failure to follow the Company's instructions (whether oral or in writing) on installation, damages from reinstallation of Goods which have been de-installed or alteration of the Goods without the Company's express written approval;
13.7 the Company shall be under no liability if the total purchase price of
the Goods has not
been paid in accordance with section 8 above.
Without prejudice to sections 13.2 and 15.1, the Company may at its sole
discretion replace such Goods as are to its satisfaction shown to have been
damaged in transit and make up all shortages in quantities of the Goods which
are to its satisfaction shown to have arisen during transit, provided
(i) a written claim specifying the nature and extent of the damage or of the shortages is made to the Company within seven days of delivery; and
(ii) the Company may at its sole discretion elect to repair the damage to the Goods or refund the purchase price or a proportion thereof in respect of the damaged or missing Goods.
15 Delivery of Incorrect Goods
15.1 Delivery to site or to the Purchaser's premises of the wrong quantity of
Goods or of the
Goods mixed with goods not included in the Contract shall not give the Purchaser the right to reject the goods and in such circumstances:
(i) in the case of delivery of a quantity less than the quantity ordered, the Company shall (save where the deficiency in quantity has arisen during transit) make up the deficiency within a reasonable time of the receipt of a written notice provided by the Purchaser within seven days following delivery; and
(ii) in the case of delivery of a greater quantity than the quantity ordered by the Purchaser, the Purchaser shall at its election either pay for the excess at the rate per item prevailing at the date of the Contract and generally in accordance with the relevant provisions of these conditions or return within fourteen days of delivery any excess to the Company at the expense of the Company.
15.2 Where the Purchaser elects under section 15.1(ii) to pay for any excess, the excess so retained shall, for the purposes of these conditions, be deemed to be included in the Goods.
16 Force Majeure
The Company shall be entitled at any time before or after the Purchaser's order form is submitted to cancel or only partially to perform any Contract arising out of such an order form by reason of any event, accident or omission wholly outside the control of the Company (including without prejudice to the generality of the foregoing any act of God, explosion, flood, tempest, fire or accident; war or threat of war, terrorism, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, prohibitions or measures of any kind on the part of any national or local government or parliamentary authority; import or export restrictions, regulations or embargoes; strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery) which prevents or substantially hinders the Company from wholly or partly performing its obligations under the Contract.
If any provision of these General Terms and Conditions is null and void or unenforceable, the remaining provisions shall remain in full force.
18 Governing Law; Jurisdiction
Unless otherwise agreed, these conditions of contract shall for all purposes be governed by and construed in accordance with the law of the Kingdom of The Netherlands including the United Nations (Vienna) Convention on the International Sale of Goods ("CISG"). The jurisdiction for resolution of disputes shall be the courts of Rotterdam. Notwithstanding the above, at its sole discretion, the Company may bring an action under the law of, and in the courts of, the principal place of business of the Purchaser