General Terms and Conditions of Delivery of the Private Limited Company
SPACX Actuators & Controls B.V.
having its registered office and principal place of business at 1E Heinz Moormannstraat, Boxmeer, filed with the Chamber of Commerce in Eindhoven under number 56238363
ARTICLE 1: DEFINITIONS
1. SPACX Actuators & Controls: the private limited company “SPACX Actuators & Controls B.V.”, having its registered office in Boxmeer.
2. Purchaser or Client: the party with which SPACX Actuators & Controls contracts.
3. Quotation: an offer from SPACX Actuators & Controls to the Purchaser in which the work or the goods purchased are specified in terms of material, price and delivery period.
4. Agreement: the agreement between SPACX Actuators & Controls and the Purchaser.
5. Delivery period: the period between the formation of the Agreement and the point of delivery or completion of the performance as agreed upon by contract.
ARTICLE 2: APPLICABILITY
1. These General Terms and Conditions shall apply to every quotation, agreement and obligation arising therefrom on the part of and with SPACX Actuators & Controls.
2. Departures from these Terms and Conditions may take place only in writing and shall be valid only with respect to the specific Agreement to which the departure relates.
3. If any provision of these General Terms and Conditions or of an agreement concluded to which these General Terms and Conditions have been declared applicable, proves to be legally invalid in accordance with a judicial decision, the remaining provisions shall remain in full force. If and insofar as any provision of these General Terms and Conditions proves to be legally invalid in accordance with a judicial decision, this shall be modified to a legally acceptable provision which conforms as much as possible to the essence of the invalid provision and the Agreement.
4. As a result of the mere fact of an order given to SPACX Actuators & Controls, the Purchaser declares that any terms and conditions existing on its side, howsoever called and filed, shall not apply, so that only these Terms and Conditions shall apply to all agreements.
ARTICLE 3: OFFERS AND AGREEMENTS
1. All quotations shall be without any obligation and shall be valid during the period stated by SPACX Actuators & Controls. 2. Orders given to SPACX Actuators & Controls shall constitute irrevocable offers so long as the order has not been refused by SPACX Actuators & Controls.
3. An agreement shall be formed as a result of SPACX Actuators & Controls accepting the offer.
ARTICLE 4: DELIVERY PERIOD
1. SPACX Actuators & Controls shall endeavour to deliver the goods purchased within the period stated in the order confirmation. The delivery period shall never be a deadline. If the delivery period is exceeded, this shall not give the Purchaser any right to compensation for any loss suffered, unless the Parties have agreed otherwise in writing.
2. The delivery period shall commence when agreement has been reached on all technical details, all necessary information and final drawings etc. are in the possession of SPACX Actuators & Controls, the agreed payment or instalment has been received and when all necessary conditions for the execution of the order have been fulfilled.
3. With the exception of cases of intent or gross negligence on the part of SPACX Actuators & Controls, if the delivery period is exceeded by six months or less, this shall not provide the Purchaser with any grounds for dissolving the Agreement. If the delivery period is exceeded by more than six calendar months, the Purchaser shall have the right to dissolve the Agreement for the part of the obligation that has not yet been fulfilled, by means of a bailiff’s notification or registered letter. If SPACX Actuators & Controls has commenced manufacture of the goods purchased, this right shall exist only after the delivery period has been exceeded by nine months, subject to the condition that the Purchaser must in that case purchase from SPACX Actuators & Controls, for a proportional price, that part of the goods purchased which is finished or virtually finished.
4. If an order is carried out by delivery in consignments, each consignment delivery shall be regarded as a separate transaction with all the legal consequences. Each consignment delivery shall be invoiced separately.
5. If, after the Agreement has been concluded, SPACX Actuators & Controls becomes aware of circumstances which must give it grounds to fear that the Purchaser will be unable to fulfil its obligations, SPACX Actuators & Controls shall be entitled, in addition to its statutory rights, to dissolve the Agreement unilaterally, provided that, only in the event of serious doubt concerning the validity of such fear, it has first requested the provision of adequate security. SPACX Actuators & Controls shall under no circumstances be obliged to pay compensation in the event of such dissolution.
ARTICLE 5: FORCE MAJEURE
1. If SPACX Actuators & Controls is unable to fulfil its obligations due to force majeure, the delivery period shall be extended by the period of this force majeure, without SPACX Actuators & Controls being obliged to pay compensation for any damage and/or loss.
2. For the purposes of this Article, force majeure shall be understood to mean all circumstances for which SPACX Actuators & Controls is not responsible or accountable by law, by legal act or according to generally accepted standards, on account of which circumstances, according to criteria of fairness and reasonableness, fulfilment or timely fulfilment of the Agreement or of a part thereof cannot be required of SPACX Actuators & Controls. Force majeure shall also be understood to include earthquakes, exceptional weather conditions, fire, loss or theft of tools, the loss of materials for processing, road blockades, strikes or stoppages and import or trade suspensions.
3. The Parties shall each have the right to dissolve the Agreement without judicial intervention as soon as it is an established fact that, as a result of force majeure, SPACX Actuators & Controls is prevented permanently, or for at least 6 months, or for 9 months if production has already commenced, from fulfilling its obligations vis-à-vis the Purchaser. In such cases, the Purchaser shall not have any right to compensation for any damage or loss and must pay the costs already incurred by SPACX Actuators & Controls and take and pay SPACX Actuators & Controls for the raw materials, materials and parts reserved, processed and manufactured in order to fulfil the Agreement, failing which SPACX Actuators & Controls shall be entitled to store or sell those goods at the Purchaser’s expense and risk. In any case, the Purchaser must purchase from SPACX Actuators & Controls, for a proportional price, the part of the goods purchased which is finished.
ARTICLE 6: PRICES
1. Unless specified otherwise in the quotation and/or order confirmation, prices shall be ex-works. Prices shall be exclusive of turnover tax and packaging, shipping and clearance charges.
2. If four months have passed since the date on which the Agreement was concluded, and SPACX Actuators & Controls has not yet completed its fulfilment of the Agreement as agreed, an increase in factors determining prices may be passed on to the Purchaser.
3. Payment of the price increase as referred to in paragraph 2 shall be made at the same time as payment of the principal or the last instalment.
ARTICLE 7: PLACE OF DELIVERY AND TRANSFER OF RISK
1. Unless agreed otherwise in writing, delivery shall take place unpackaged, to the address where SPACX Actuators & Controls’ works are established. Delivery shall take place by transfer of the goods purchased to the carrier. The risk shall transfer to the Purchaser at that point.
2. Regardless of the provisions of the first paragraph, the Purchaser and SPACX Actuators & Controls may agree that SPACX Actuators & Controls shall arrange the transportation. The risk of loading, transporting and unloading shall also be borne by the Purchaser in that case. The Purchaser must insure itself against those risks.
ARTICLE 8: RETENTION OF TITLE
1. The goods delivered shall remain the property of SPACX Actuators & Controls until the Purchaser has fulfilled all its financial obligations vis-à-vis SPACX Actuators & Controls in connection with the agreement concluded between the Parties, including interest and costs.
2. So long as the goods delivered are subject to a retention of title, the Client may not dispose of those goods except in the normal conduct of its business.
3. After SPACX Actuators & Controls has relied upon its retention of title, it may take back the goods delivered. The Client shall grant SPACX Actuators & Controls entry to the place where the goods are situated.
4. If SPACX Actuators & Controls is unable to rely upon its retention of title because the goods delivered have been mixed, transformed or acceded, the Client must pledge the newly formed goods to SPACX Actuators & Controls.
5. If SPACX Actuators & Controls requires it, the Client must provide security for the fulfilment of its obligations.
6. Regardless of the retention of title, the goods shall be at the Client’s expense and risk from the point of delivery.
ARTICLE 9: INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
1. Unless agreed otherwise, SPACX Actuators & Controls shall retain the copyright and all industrial property rights in its offers and in the designs, illustrations, drawings, specimen models and programs etc. provided by it.
2. The rights in the information referred to in paragraph 1 shall remain the property of SPACX Actuators & Controls regardless of whether the Client has been charged fees for the manufacture of such information. Such information may not be copied, used or shown to third parties without the express permission of SPACX Actuators & Controls. If this provision is breached, the Client shall be liable to pay SPACX Actuators & Controls a penalty of EUR 25,000. This penalty may be demanded in addition to the compensation under the law.
3. The Client must return the information provided to it as referred to in paragraph 1 at the first request within the period stated by SPACX Actuators & Controls. If this provision is breached, the Client shall be liable to pay SPACX Actuators & Controls a penalty of EUR 1,000 per day. This penalty may be demanded in addition to the compensation under the law.
4. In the case of manufacture according to drawings, models or other instructions from the Client, the Client shall assume full responsibility for ensuring that the manufacture and/or delivery of the product concerned does not infringe any trademark, patent or similar third-party right. The Purchaser shall indemnify SPACX Actuators & Controls against any third-party claims against it.
ARTICLE 10: AUXILIARY PERSONS AND EMPLOYEES
1. When carrying out the Agreement, SPACX Actuators & Controls shall be entitled to use auxiliary persons. When employing third parties, it shall always exercise due care. . Any liability for failures in the performance of the Agreement by third parties is ruled out.
2. If the aforementioned auxiliary persons or employees should be sued outside the Agreement, in connection with the work for which they were used by SPACX Actuators & Controls, it shall be deemed to have been stipulated that those auxiliary persons and employees may rely upon all the stipulations concerning exclusion or limitation of liability included in these Terms and Conditions.
3. SPACX Actuators & Controls may rely upon every exoneration stipulation which auxiliary persons and third parties have agreed upon with SPACX Actuators & Controls with respect to the Purchaser.
ARTICLE 11: PAYMENT
1. The Purchaser must make payment to SPACX Actuators & Controls without any deduction and/or setoff within 30 days of the invoice date, unless agreed otherwise in writing. The Purchaser shall not be entitled to suspend payment.
2. Only payment by transfer to one of the bank or giro accounts in the name of SPACX Actuators & Controls shall discharge the Purchaser.
3. The Purchaser’s right to set off its claims against SPACX Actuators & Controls is ruled out, except in the case of SPACX Actuators & Controls’ liquidation.
4. Any claims under a guarantee shall not suspend the Purchaser’s payment obligations.
5. In the event of non-payment or late payment, the Purchaser shall be in default by the mere lapse of the payment term, without any warning or notice of default being required. From the latest due date for payment, the Purchaser shall be liable to pay interest on the amount that it owes SPACX Actuators & Controls, at the rate of 1% per month, compounded annually.
6. The extrajudicial collection costs shall be payable in full by the Purchaser. Such costs shall be fixed at 15% of the principal due, with a minimum of EUR 500, without SPACX Actuators & Controls having to prove that those costs have been incurred.
7. If SPACX Actuators & Controls is the successful party in legal proceedings, all costs incurred by SPACX Actuators & Controls in connection with the proceedings shall be payable by the Purchaser.
8. If the Purchaser fails to fulfil its payment obligations in time, the entire purchase price payable to SPACX Actuators & Controls shall be due and payable immediately and in full, regardless of the state of the work, and SPACX Actuators & Controls may demand its immediate payment and may suspend the work until payment in full has been made. This provision shall not affect the provisions of Article 13 paragraph 2.
9. Payments to SPACX Actuators & Controls shall be deducted firstly from costs, then interest and then the most outstanding invoices.
ARTICLE 12: GOODS NOT TAKEN UP
1. When goods have not been taken up after the delivery period has lapsed, those goods shall remain at the disposal of SPACX Actuators & Controls. Goods not taken up shall be stored at the Purchaser’s expense and risk. SPACX Actuators & Controls may always use the right referred to in Section 6:90 of the Dutch Civil Code. Article 13: Dissolution 1. If the Purchaser fails to fulfil one or more of its obligations in time and properly, or dies, is declared bankrupt or applies for a moratorium on payments, proceeds to wind up its company, is placed under guardianship, its goods are completely or partially seized, or if it is otherwise shown to be insolvent, the Purchaser shall be deemed to be in default by operation of law and SPACX Actuators & Controls shall be entitled, extrajudicially, to dissolve the part of the Agreement not yet carried out, or to take any other measure which it deems appropriate.
2. In all such cases, all claims against the Purchaser shall be due and payable immediately and in full, and SPACX Actuators & Controls shall be entitled to recover from the Purchaser the damage and/or loss suffered by it in fulfilling the Agreement. Such damage and/or loss shall be set at 50% of the agreed price, without prejudice to SPACX Actuators & Controls’ right to claim full compensation.
3. The Purchaser undertakes to indemnify SPACX Actuators & Controls against third-party claims resulting from the dissolution of the Agreement.
4. Minor deviations from the usual or reasonable tolerances shall not give the Purchaser any right to dissolution, complaint, rejection, replacement or compensation.
ARTICLE 14: LIABILITY
1. SPACX Actuators & Controls shall not be liable for damage or loss suffered by the Purchaser unless that damage or loss is directly and solely the result of an attributable failure on the part of SPACX Actuators & Controls. In any case, only damage or loss for which SPACX Actuators & Controls is insured shall be eligible for compensation.
2. If there is any liability on the part of SPACX Actuators & Controls, such liability shall be limited to the amount that is paid out in the case concerned under SPACX Actuators & Controls’ liability insurance.
3. In the event of liability on the part of SPACX Actuators & Controls, the duty to compensate for the damage or loss shall be fulfilled in full by repairing and/or rectifying or replacing the goods purchased by the Purchaser, all at the option of SPACX Actuators & Controls.
4. SPACX Actuators & Controls shall not be obliged to carry out repair work if the Purchaser fails to fulfil properly and in time all obligations arising for it from the Agreement concerned. If SPACX Actuators & Controls allegedly fails to carry out repair work, this shall not release the Purchaser from its obligations arising from the Agreement with SPACX Actuators & Controls.
5.Complaints about the goods purchased or their delivery must be submitted to SPACX Actuators & Controls in writing within seven calendar days of delivery, failing which the right to sue SPACX Actuators & Controls for any failure shall lapse. The ‘appropriate time’ as referred to in Section 6:89 of the Dutch Civil Code shall in all cases be fixed at seven calendar days.
6. Damage to the goods delivered shall be the only damage or loss eligible for compensation. Every form of consequential damage and trading loss shall be expressly ruled out, including but not limited to, loss resulting from discontinuation and loss of profits, loss resulting from personal accidents and loss arising from third-party claims against the Purchaser.
7. The Purchaser shall indemnify SPACX Actuators & Controls against all third-party claims relating to product liability resulting from a defect in a product which was supplied to a third party by the Purchaser and which was partly or wholly composed of products and/or materials supplied by SPACX Actuators & Controls.
8. All liability on the part of SPACX Actuators & Controls for damage to or loss of materials provided by the Purchaser is ruled out. Any damage arising during transport of such materials to SPACX Actuators & Controls shall be entirely at the Purchaser’s expense and risk.
9. SPACX Actuators & Controls shall not be obliged to pay any compensation other than that pursuant to the stipulations of this Article, unless agreed otherwise when the Agreement was concluded.
ARTICLE 15: GUARANTEES
1. For a period of six months following delivery, SPACX Actuators & Controls shall guarantee the proper execution of the agreed performance.
2. If the agreed performance involves the contracting of work, SPACX Actuators & Controls shall guarantee, during the period referred to in paragraph 1, the sound quality of the construction delivered, provided that it was free to choose such construction.
3. If the agreed performance involves the processing of materials supplied by the Client, SPACX Actuators & Controls shall guarantee, during the period stated in paragraph 1, the sound quality of the processing.
4. The Client must in all cases give SPACX Actuators & Controls the opportunity to remedy any defect or to carry out the processing again.
5. The Client may make a claim under the guarantee only after it has fulfilled all its own obligations.
6. No guarantee shall be provided for defects resulting from normal wear and tear, misuse, maintenance or installation not carried out or carried out incorrectly, or alterations or repairs carried out by the Client or third parties. Furthermore, no guarantee shall be provided for goods delivered which were not new at the time of delivery. The right to a guarantee shall lapse if repairs have been carried out to goods by the Purchaser or by third parties.
ARTICLE 16: DISPUTES AND APPLICABLE LAW
1. Dutch law shall apply exclusively to the Agreement concluded with the Purchaser.
2. Any disputes arising from or connected to the Agreement(s) concluded between the Parties and the performance thereof, shall be referred to the competent district court in Breda.
ARTICLE 17: WORKING LANGUAGE
1. These General Terms and Conditions have been drawn up in Dutch and English. If and insofar as there is a difference in interpretation between the English and the Dutch text of these General Terms and Conditions, the interpretation which must be given to the Agreement based on the Dutch text shall be binding upon the Parties. General Terms and Conditions of SPACX Actuators & Controls B.V. July 2016