- The term “Terms and Conditions” (“Terms”) shall be deemed to mean the provisions contained in this document. - “Birdys” means the limited liability company incorporated under the laws of The Netherlands, entered into the Dutch Commercial Register under no.22044175, and having its offices at 4587 LC Kloosterzande, The Netherlands, which issues the Sales Contract and applies these Terms and Conditions. - The term “Customer” or “Client” shall be deemed to mean the person or legal entity which enters or intends to enter into a contract with Birdys to purchase goods from Birdys in performance of a Sales Contract. - The term “Sales Contract” shall be deemed to mean any sales contract, sales order, confirmation or other agreement between Birdys and the Customer in the performance of which goods are (to be) sold to the Customer and is deemed to consist of the sales contract, order, releases (defined below) issued under the sales contract, these Terms and all other documents specifically incorporated into or made a part of the Sales Contract by Birdys. - The term “goods” shall be deemed to mean all material objects to which the agreement relates, and, where appropriate, work and services to be provided to the Customer.
2. GENERAL PROVISIONS.
These Terms apply to the quotations, offers, the formation, the contents of and the compliance with any agreement and/or sales contract in the performance of which goods are supplied by Birdys. - The Customer hereby agrees that the provisions of the Sales Contract and these Terms of sale are the sole provisions applicable to the sale of the goods and that these provisions shall prevail over any additional or inconsistent terms contained or referred to in any communication at any time by the Customer in whatever form. Notwithstanding the foregoing, Biryds shall have the right to amend the Sales Contract and to make changes by faxing, e-mailing or otherwise delivering written notice thereof to the Customer. - The Supplier agrees that the general terms of purchase of the Customer shall not apply to any Sales Contract – not even in addition to these Terms, that any applicability of such general terms of purchase is hereby expressly excluded. bir ys 2.3. The Supplier agrees that the general terms of purchase of the Customer shall not apply to any Sales Contract – not even in addition to these Terms, that any applicability of such general terms of purchase is hereby expressly excluded.
3. PURCHASE CONTRACT, QUOTATIONS, ORDERS, ACCEPTANCE, ETC.
3.1 All quotations by Birdys are free of obligation and can at all times be revoked by Birdys even if they include a period for acceptance. In the event that the Customer accepts a quotation, Birdys nevertheless is entitled to revoke the offer – verbally or in writing – within seven days of receipt of the acceptance, in which case no agreement shall be deemed to have been formed between the parties. Unless otherwise stated by Birdys, all quotations shall lapse automatically if they have not been accepted in writing by the Customer within fourteen (14) days after the date of such quotations. 3.2.The Sales Contract is an offer by Birdys to sell goods to the Customer on the terms in the Sales Contract. Any Sales Contract must either (i) exclusively be signed by a duly authorized representative of both Parties, or (ii) be evidenced by a written order issued and signed by Birdys and accepted by the Customer as provided herein. 3.3. The Customer shall be deemed to have accepted the Terms and Sales Contract upon the earlier of (i) signing the Sales Contract or an acknowledgement thereof, whichever first occurs. Any acceptance of the Sales Contract is limited to acceptance of the Terms herein. 3.4. Any reference made to trade or delivery terms (such as EXW, DDP, etc.) is deemed to be made to the relevant terms of the Incoterms, published by the International Chamber of Commerce, to the version current at the effective date of the Sales Contract.
4.1. Birdys and the Customer agree that the orders, messages and all other information transferred to the other Party by means of electronic data interchange may be regarded as the duly authorized and manifest will of the respective party and will be handled in the same manner as communications on paper.
4.2. Actions for performance and notices of default must be made by registered letter, giving specific details of what performance is required and within which period.
4.3. The provision of the second paragraph applies equally to the stipulation of any other period and in the event that the Customer relies upon dissolution of the agreement. Any reliance upon dissolution must clearly indicate the grounds for such a dissolution.
5 PRICES AND PAYMENT
5.1 All prices applied by Birdys are based on the price-determining factors known at the time that the quotation was made.
5.2 Unless the Parties explicitly agree otherwise in writing, Birdys is entitled to adjust the prices, or elements thereof, for goods or services not yet delivered and/or paid for, on the basis of any changes in price-determining factors, such as raw material prices, wages, logistics costs and currency exchange rates, in the event that a period of six (6) months has passed since the agreement was entered into.
5.3. Birdys is at all times entitled to adjust the prices immediately in the event that a statutory price-determining factor gives cause to do so.
5.4 All prices are gross amounts but exclusive of any value added tax (VAT), sales tax, consumption tax or any other similar tax only. If the transactions as described in these Terms are subject to any applicable VAT, sales tax, consumption tax or any other similar tax, Birdys will be allowed to charge VAT, sales tax, consumption tax or any other similar tax to the Customer, which will be paid by the Customer on top of the prices. The Swaen is responsible for paying any applicable VAT, sales tax, consumption tax and any other similar tax to the appropriate (tax) authorities. Birdys shall issue an invoice containing wording that will allow the Customer to take advantage of any applicable “input” tax deduction.
5.5 All payments owed by the Customer and all amounts due shall, unless otherwise agreed, be transferred by tele transmission or otherwise to The Birdys bank as communicated by Birdys. The Customer shall be deemed to have performed its payment obligations when the respective sums due have been credited to Birdys bank account within the agreed term. In the event that the Customer fails to pay said amounts timely, it shall automatically and without further notice be in default and shall owe an interest of 1% per month on all that owed after the date referred to above. 5.6. Payments by the Customer shall first cover costs and interest owed (in that order) and then cover the principal amounts, with older claims taking precedence over newer claims.
6 MOMENT OF DELIVERY
Delivery times stated and/or agreed shall at no time be deemed firm deadlines, unless explicitly agreed otherwise. In the event of late delivery, Birdys must therefore be served written notice of default, with due observance of a reasonable term.
7 TRANSFER OF RISK
All risks related to goods to be delivered by Birdys shall be transferred to the Customer at the moment the order is effected, or the moment of delivery if this precedes said moment.
8 PLACE OF DELIVERY If no other delivery terms are determined in the Sales Contract, Birdys shall place the goods at the Customer’s disposal at the plant address of Birdys stated in the Sales Contract, Ex Works (EXW).
9 PACKAGING Delivery and/or packaging of the goods shall take place in the manner described in the Sales Contract. In the event that no such manner is included, The Swaen shall package the goods to be delivered in such a way as to ensure that they reach their destination in good condition by normal transport. Delivery and packaging costs shall be borne by the Customer.
10 INTELLECTUAL AND/OR INDUSTRIAL PROPERTY RIGHTS
10.1 All intellectual and industrial property rights vested in all goods or generated or developed by virtue of the agreement shall belong exclusively to Birdys. The Customer shall solely acquire the rights of use and authorisations explicitly allocated under these Terms or otherwise.The Customer shall not use Birdys intellectual property or any other, data, recipes or specifications for its own use or for or on behalf of another party.
10.2. Recipes, samples, specifications, copy rights, know how, technical information, intellectual property or any other information supplied by Birdys, the terms and conditions of a quotation or Sales Contract are proprietary and strictly confidential (“Confidential Information”) and shall not be disclosed to any person or entity and shall not be used by the Customer in relation to any other party.
11 RETENTION OF TITLE
11.1 The goods supplied by Birdys shall remain the property of Birdys until such a time as the Customer has paid in full all amounts owed on the basis of the Sales Contract.
11.2 Birdys cannot lose its retained title if and/or because the Customer has processed and/or treated the goods received. In such a case, the Customer shall – automatically – retain the goods in question for Birdys.
12 EXTENDED RETENTION OF TITLE
12.1 The Customer is entitled to process the goods or mix them with other goods in the ordinary course of its business. Birdys will then acquire co-ownership in the goods created through processing or incorporation as security for her claims as referred to under the above Article 11, without owing any compensation therefore. The scope of Birdys co-ownership will be determined by the ratio of the value of the goods and that of the goods created by processing or mixing.
12.2 Birdys gives the Customer, until further notice, permission to sell the goods in the ordinary course of the Customer’s business. This right terminates in the event payments cease. The Customer hereby assigns to Birdys all claims and additional rights arising for the client in respect of sale of the goods. The assigned claims serve as security for all rights referred to under the above Article 11. The Customer is entitled to collect the assigned claims, as long as Birdys has not revoked this authorisation.
12.3 The authorisation for collection also terminates without an express statement of revocation, if and the moment the Customer ceases his payments. Upon Birdys request the Customer must immediately inform Birdys in writing to whom he has sold the goods and what claims he has in respect of such sale. The Customer must furthermore and without delay see to the drawing up of notarised deeds of the assignment of the claims in Birdys favour at his expense. 12.4 The Customer is not entitled to other actions of disposition with regard to the goods covered by Birdys retention of title or its co-ownership or with regard to the claims assigned. The Customer must immediately inform Birdys as to attachment measures or other limitations of rights relating to the goods which belong to Birdys in whole or in part and follow consequential instructions of Birdys in that respect.
13 COMPLAINT PERIOD, OBLIGATION TO EXAMINE
13.1 The Customer is at all times obliged within a reasonable period after delivery – and in any case within 4 (four) days – to examine the goods delivered to ascertain whether they comply with the Sales Contract.
13.2 On penalty of automatic lapse of its rights, the Customer shall inform Birdys within 7 (seven) days of delivery in writing of any claim of an alleged failure to perform on the part of Birdys, including a detailed and clear description of the alleged defect.
13.3 In the event of a latent defect, the Customer shall send written notice of the alleged failure to performance on the part of Birdys immediately after discovery, and in any case no later than 2 (two) weeks after delivery of the goods, including a detailed and clear description of the alleged latent defect.
14.1 Birdys shall provide a performance which complies with the Sales Conmtract and which provides reasonable quality requirements, taking into consideration the nature of the performance. 14.2 Birdys shall in no event be liable under any theory of liability for indirect, incidental, special, consequential or punitive damages, which includes without limitation damages for lost profits or revenues, lost business opportunities, loss of image or lost data, even if Birdys has been advised of the possibility of such damages and Birdys liability in all other cases shall not exceed The Swaen’s unconsumed part of the maximum insured coverage.
14.3 Birdys cannot be held liable for intent and/or gross negligence on the part of nonmanagerial subordinates.
15 FORCE MAJEURE
15.1 “Force Majeure” shall mean damage or delay caused by Acts of God, acts or regulations or decrees of any government (de facto or de jure), natural phenomena such as earthquakes and floods, fires, riots, wars, freight embargoes, lockouts or other causes whether similar or dissimilar to those enumerated above unforeseeable and beyond the reasonable control of the pertaining parties that cannot be considered to be for the risk of pertaining party and which prevent the total or partial carrying out of any obligation under any Sales Contract. For the avoidance of doubt, Article 6:75 of the Dutch Civil Code shall be applicable.
15.2 In the event of a Force Majeure situation the Party to a Sales Contract being delayed thereby shall inform the other Party to that Sales Contract thereof as soon as possible but in any event within three (3) business days after the commencement of such Force Majeure situation and specify the nature of the Force Majeure situation as well as the estimated duration thereof.
15.3 In the event the Force Majeure situation continues for a period of more than thirty (30)business days, then either Party is entitled to terminate such Sales Contract affected thereby by simple notice in writing and without either Party being liable for damages towards the other Party. If the affected Party does not wish to terminate the Sales Contract in accordance with the above, the respective Parties’ rights and obligations will be suspended and a new time schedule shall be agreed upon between the Parties.
16 SEVERABILITY, CONVERSION AND WAIVER.
16.1. In the event that one or more of the provisions of these Terms and Conditions of Sale, Sale Contracts and/or other agreements to which these Terms and Conditions of Sale apply, are subsequently declared invalid or unenforceable by court or administrative decisions, such validity or enforceability shall not in any way affect the validity or enforceability of any other provisions of the Terms and Conditions of Sale, Sale Contracts (and/or other agreements to which these Terms and Conditions of Sale apply), except those of which the invalidated or unenforceable provisions compromise an integral part or otherwise are clearly inextricable from such other provisions. In the event that any provision of the Terms and Conditions of Sale, Sale Contracts (and/or other agreements to which these Terms and Conditions of Sale apply) shall be deemed to be invalid or become invalid, Birdys and the Customer hereto agree to substitute for such provision a new provision which comes as close as possible to the original objective of the Parties. 16.2. No waiver, forbearance or failure by Inalfa of its rights to enforce any provision of the Terms and Conditions of Sale, Sale Contracts (and/or other agreements towhich these Terms and Conditions of Sale apply) shall constitute a waiver of its right to enforce such provision thereafter or to enforce any other provision.
17 LAPSE OF RIGHTS
17.1. The Customer must exercise its rights from these Terms within one year of said rights coming into being by commencement of legal proceedings. In the absence of said proceedings, the Customer’s rights shall lapse automatically.
17.2. If so requested Birdys is authorised to extend this period if it so wishes.
17.3. The above shall not prejudice other provisions of these Terms, on the grounds of which one or more rights of the Customer have lapsed at an earlier time.
18 SURVIVING ARTICLES All terms and conditions of these Terms, which by their nature are destined to survive the term or termination of a Sales Contract (whether expressed or not), shall so survive.
19 APPLICABLE LAW, RESOLUTION OF CONFLICTS
19.1. Each and every legal relationship between Birdys and the Customer stemming from or based upon this Contract shall be governed by the laws of the Netherlands, excluding any conflict of law provisions that would require application of another choice of law.
19.2. All consecutive contracts between Birdys and the Customer shall exclusively be governed and construed in accordance with the laws of the Netherlands, excluding any conflict of law provisions that would require application of another choice of law.
19.3.The UN Convention on Contracts for International Sale of Goods shall not apply to this Contract nor to any consecutive legal relationship between the Parties.
19.4. All disputes, including interim injunction procedures, related to and/or arising from these Terms and Conditions of Sale, Sale Contracts (and/or other agreements to which these Terms and Conditions of Sale apply), shall only be brought before the competent court in the jurisdiction of the registered office of Biryds, to the exclusion of all other courts. For all purposes hereunder, the Customer hereby submits to personal jurisdiction in all courts located in the jurisdiction of the registered office of Birdys and waives all objections that such jurisdiction is inconvenient or any other ob jections.