LASERCLEAN B.V., with its seat of residence in Alphen aan den Rijn, The Netherlands, registered at the Chamber of Commerce in Leiden under number 28065049.
These General Conditions are written in English. If the reader doesnâ€™t (sufficiently) understand English, he is required to ask Laserclean for a translation or arrange for translation himself.
In these General Conditions the following terms shall have the meanings hereunder assigned to them:
Seller:Â Laserclean B.V.
Buyer:Â any (legal) person or entity who requests an offer and/or makes an agreement with the seller to buy or sell a product, and excludes the sellerâ€™sÂ representative(s), authorized person(s) and assignee(s).
Product:Â all goods, raw materials and semi-finished products, including (on site) services such as laser cleaning services, which are purchased and/or offered for sale and/or sold andÂ delivered by the seller.
Manufacturer:Â the (legal) person who has manufactured the product and/or put it into circulation.
Actions:Â all actual actions and legal actions taken by the seller before, during and after making an agreement, which fall under the framework of theÂ to-be-agreed and/or concluded agreement.
Supplier:Â any (legal) person who makes an offer and/or makes an agreement with the seller to buy or sell a product, and excludes the sellerâ€™sÂ representative(s), authorized person(s) and assignee(s).
Order:Â a written assignment to supply a product, which also includes EDI messages (EDI = Electronic Data Interchange; electronic data traffic).
All offers by the seller and/or supplier, all agreements between buyer and seller and/or seller and supplier, and their execution, are exclusivelyÂ subject to the conditions below.
Additions or deviations to/from these conditions only come into effect if they have been confirmed by the seller to the supplier and/or buyer inÂ writing.
Additions or deviations to/from these conditions must be explicitly agreed on each occasion.
OFFER AND SALE CONTRACT
The supply-related stipulations between the parties are initially provided to the buyer by written offer (including EDI), only becoming binding after signing the offer and/or Sale Contract. Both offer and Sale Contract are broadly, but not entirely, based on and explained by using the (2010 edition of) Incoterms, and may contain more detailed and/or additional terms and conditions than stated in this document.
APPLICABLE LAW AND JURISDICTION
All legal relations to which these conditions apply are exclusively subject to Dutch law. The scope of the Vienna Sales Convention is explicitlyÂ excluded.
If disagreements, disputes or conflicts arise out of or in connection with the accepted offer or Sale Contract, due to a violation of provisions herein, or otherwise, the parties shall endeavour to settle the matter through amicable negotiations.
All legal disputes originating from the legal relations, as referred to in section one of this article, will be presented in first instance to the Court of Amsterdam,Â The Netherlands. English will be proceedings language if the counter party is not Dutch.
GENERAL PURCHASING CONDITIONS
FORMATION AND CONSENT OF AN AGREEMENT
Each request from the seller will be followed by a fixed offer from the supplier, which is binding for the supplier if it is accepted by the seller within 2Â months of the seller receiving it.
If an offer from the supplier is followed up by an order from the seller, the agreement will come into effect on the date mentioned on the order.
If an order is placed by the seller without it having been preceded by an offer from the supplier, the agreement will come into effect if and when â€“Â within 14 days of the date on the order or on another date mentioned on the order â€“ the products are delivered in accordance with the order.
In case of consignment on approval, the agreement will be reached in accordance with that determined in the earlier sections of this article.
The seller does not accept liability for deliveries or other performances that are not covered by an order.
If agreement is reached about drawings, models, specifications, instructions, inspection guidelines, etc. provided by the seller, these items will beÂ part of the agreement.
PRICES AND DELIVERY
All implemented prices are fixed, not subject to revision and expressed in Euro excluding VAT.
The prices and delivery are based on the delivery condition â€˜delivered duty paidâ€™ (DDP) to the agreed delivery location at the agreed time and/or within the agreed period.
Delivered products must be accompanied by a packing list, which mentions the item number(s), the quantity andÂ the description(s).
If the seller asks the supplier to delay the delivery, the supplier must package, store, secure and insure the products in an appropriate manner, withÂ the goods being clearly addressed to the seller.
TRANSFER OF OWNERSHIP
Ownership of the product will transfer to the seller, free of legal or commercial limitations, at the moment of delivery.
The seller is entitled to request ownership of the product to be transferred at another moment in time. In this case, the supplier will clearly identifyÂ the product as property of the seller and release the seller from claims for loss, damage and rights by third parties.
The supplier is liable for all damage, commercial damage and consequential damage, which includes that suffered by the seller or third partiesÂ as a result of shortcomings in his product, whereby the product does not comply with the agreement and/or does not offer the safety that can beÂ expected, partly considering the average life span of the product.
The supplier is also liable for all damage suffered by the seller or third parties as a result of actions or negligence on his part or on the part of allÂ persons he involves in the execution of the agreement.
The supplier absolves the seller from claims by third parties for damage-related compensation, as mentioned in the previous two sections of thisÂ article and will, upon first request from the seller, make a settlement with the third parties in question or follow legal proceedings against theÂ above mentioned claims, at his own cost, instead of or together with the seller.
The supplier must be appropriately insured against the liability referred to in this article and will, if desired, give the seller access to this policy.
If the supplier does not, does not timely or does not appropriately fulfil any obligation in the agreement or agreements that are derived from it, or inÂ case of his bankruptcy or suspension of payments and in case of closure, liquidation, takeover or any other comparable condition in his company,Â he will be legally deemed to be in breach and entitles the seller to unilaterally or jointly dissolve the agreement, without notice of breach andÂ without legal intervention by sending an appropriate written declaration to the supplier and/or to suspend his payment obligations and/or partly orÂ fully transfer execution of the agreement to third parties, without the seller being liable for any form of compensation and without prejudicingÂ potential rights available to the seller, including the sellerâ€™s right to full compensation.
In this case, all claims that the seller has or will have against the supplier will be claimable with immediate effect.
GENERAL SALES, DELIVERY AND PAYMENT CONDITIONSÂ
OFFERS, FORMATION OF, AND CHANGING AN AGREEMENT
All offers made by the seller are without obligation, but do carry a validity date, unless stated otherwise. The seller is entitled to re-open an obligation-free offer within fourÂ workings days of it being accepted.
An agreement will initially be reached when an order is confirmed in writing (including by means of EDI) by the seller or when the seller, possibly partly, executes the order.
Changes or additions to an agreement will initially come into effect once they have been explicitly confirmed in writing by the seller.
The seller explicitly retains all rights concerning potentially registered brand names and models, and any recipes, compositions, designs, drawingsÂ and other technical data he may have supplied within the agreement. They will remain the (intellectual) property of the seller. The seller is entitledÂ to request such pieces and items to be returned at any given moment.
For the sale of a laser system the rights and obligations set forth in the Sale Contract shall come into force from the date the two following conditions are met:
– signature of the Sale Contract by both parties
– reception in Lasercleanâ€™s account of the first part (50%) of the advance payment as set forth in the Sale Contract.
If the delay in the fulfilment of these conditions is greater than 30 days from the date of signing of the Sale Contract, the Sale Contract will automatically become null and void. Should the buyer decide to resume the order, a new Sale Contract will be issued.
PRICES, DELIVERY AND RISK TRANSFER
All prices implemented by the seller are expressed in Euros and exclude VAT, unless agreed otherwise in writing.
Unless stated otherwise, prices and delivery will be based on the delivery condition: EXW â€“ ALPHEN AAN DEN RIJN, NETHERLANDS (INCOTERMS 2010) from the sellerâ€™s warehouse.
The seller retains the right to increase the price accordingly if, in the period between the time when the agreement was reached and the time whenÂ the product is delivered, there has been an increase in the price of raw materials, semi-finished products, components, salary costs, import andÂ export duties and/or taxes relating to the product.
The agreed delivery period is merely a reasonable indication of the time of delivery and will not serve as a final delivery period.
Without prejudicing the sellerâ€™s own responsibilities, the buyer is responsible for implementing and complying with all national and/or internationalÂ legal requirements that apply to the delivered and/or to-be-delivered product, including the (unladed) loaned packaging.
The buyer will be responsible for all risks from the moment the product is delivered, also if ownership has not been transferred.
Conditions of assembly, start-up and acceptance tests of laser systems at the buyerâ€™s facilities are included in the offer and/or Sale Contract.
SECURITY AND STORAGE OF RECEIVED GOODS
When an agreement is agreed and as long as its execution has not been fully completed, the seller is entitled to request a deposit or security that heÂ deems sufficient for financial compliance within the to-be-reached and/or reached agreement and/or all claims he has or will have against the buyer.
Refusal by the seller to provide a deposit or the requested security will entitle the seller to refuse new agreements and/or suspend execution of anÂ already reached agreement, until his request to provide a deposit or security has been complied with, and will not prejudice any of the sellerâ€™s otherÂ rights. The seller is not responsible for potential damage that may be incurred by the seller or third party as a result of this refusal.
Conditions of security and payment of laser systems are stated in the offer and/or Sale Contract.
If the seller receives the buyerâ€™s goods for processing and/or storage, this will take place under the responsibility and risk of the buyer. The returnÂ of goods that are kept for processing and/or storage purposes will also take place under the responsibility and risk of the buyer. The seller will notÂ take out insurance in relation to these goods.
The deposit owed for loaned packaging must be paid at the same time as the product supplied in the packaging.
If the packaging in question is returned to the seller within three months of delivery, complete and in good condition, and is received by the seller inÂ good order, the buyer will be reimbursed the deposit in question.
All rights to reimbursement of deposits will expire after this three-month period.
PAYMENT AND RIGHT OF SUSPENSION
Payment of the invoiced total by or on behalf of the buyer must take place in Euro within 30 days of invoice date, at the offices of the seller or viaÂ deposit or transfer to an account identified by the seller, without entitling the buyer to claim any form of discount, calculation or suspension, unless explicitly stated otherwise in the offer and/or Sale Contract.
If the seller has not paid within the period stipulated in the first section of this article, or within another agreed period, he will be legally in breach andÂ will entitle the seller, without the need for further summary or notification, to charge late payment interest to the tune of 15% per year, or the legalÂ rate of commercial interest, as of the invoice expiry date until the day of payment, and without prejudicing the other rights of the seller.
All costs associated with the legal or para-legal collection of amounts owed to the seller by the buyer must be paid by the buyer. Unless provenÂ otherwise by the buyer, the amount charged by third parties deployed by the seller will be deemed to be reasonable.
In the event of multiple buyers, they will be chiefly liable for payment of the amount owed to the seller.
The seller is entitled to suspend execution of all his obligations, also those from other agreements, until all his claimable amounts have been paid byÂ the buyer.
TRANSFER OF OWNERSHIP AND INTELLECTUAL PROPERTY
All deliveries will take place under retention of ownership. The seller retains ownership of all goods delivered and to-be-delivered to the supplier,Â under all agreements, until the buyer: a) has fully paid for all the goods as well as all owed interest and costs, and b) has complied with all claimsÂ concerning activities that the seller has or will perform for the buyer under the agreements in question, and c) has complied with all claims that theÂ seller is entitled to make if he fails to honor the above mentioned obligations.
Until ownership of the product has been transferred to him, the buyer is not authorized to dispose of or to pledge, rent, lend or bring the productÂ outside his company in any way, shape or form, unless this takes place under the normal operation of his business. This matter will be left to theÂ judgement of the seller, and will be punishable with an immediately claimable fine, which cannot be legally moderated, equal to twice the invoicedÂ (sales) price of the product, without prejudicing the right of the seller for complete compensation and compliance with the agreement.
If the seller does not and/or does not timely comply with any obligations in the agreement, the seller is entitled to recuperate the product from theÂ buyer without further notice. By (tacitly) accepting these conditions, the buyer already authorizes the seller to access the place where the productÂ will be located.
If the buyer receives ownership for the goods delivered by the supplier, this will take place subject to a non-possession pledge towards the seller asÂ guarantee to comply with all claims to which the seller is or will be entitled. The buyer will, upon first request from the seller, take all action that isÂ needed in this matter, and irrevocably authorizes the seller to take this action on his behalf.
Laserclean is the owner and/or the licensee of all intellectual property rights of each sold laser system including control software that enables the operation, maintenance and repair of the system. More detailed conditions of intellectual property of laser systems is included in the offer and/or Sale Contract.
GUARANTEE, INSPECTION AND COMPLAINTS
If the product is manufactured by the seller, the seller guarantees the buyer that the product complies with all specifications stipulated in theÂ agreement and can be used for the purpose identified in the agreement. The seller does not provide any further guarantee concerning the productsÂ he manufacturers. The seller thus does not guarantee that the product complies with technical descriptions mentioned in catalogues, prospectuses,Â print work and/or advertisements.
Guarantee arrangements do not apply to shortcomings that occur and/or have occurred due to expiry of the best before date, due to failure toÂ store in accordance with normal regulations and/or in accordance with that determined on the labels, due to normal wear and tear, in case ofÂ careless or injudicious use, in case of accidents or events such as fire and water damage, or if the goods have been changed or repaired by thirdÂ parties.
Use of the term â€œguaranteeâ€ in this article is consistent with that determined in Book 6 of the Civil Code concerning an attributable shortcoming, withÂ the seller assuming no further obligations.
At the moment of delivery, the buyer must do whatever possible to examine whether the product complies with the agreement, certainly in terms ofÂ quantity and appearance. If the buyer finds a shortcoming, he must inform the seller of theÂ shortcoming, in detail and in writing, within two working days.
The buyer is required to perform an investigation, within 8 days of delivery, concerning the question whether the delivered goods generally complyÂ with the agreement, and must inform the seller of this, in detail and in writing, within the above mentioned period.
If the buyer proves that he was reasonably unable to discover the shortcoming within the periods mentioned in the two sections above, he mustÂ submit a complaint to the seller in detail and in writing within eight days â€“ and certainly within a period of one year, as described in article 17 â€“ ofÂ when the buyer has discovered or should have (reasonably) discovered the shortcoming.
The seller is not obligated to process complaints made after the periods mentioned in this article, and his company will not be held liable. If the sellerÂ still decides to process such a complaint, then his efforts must be regarded as leniency and not as an acceptance of liability.
If it appears that an unfounded complaint has been made and the seller subsequently performs activities and/or supplies goods, the seller is entitledÂ to charge related costs to the buyer at the normal price that he implements.
(Additional) Conditions of guarantee of laser systems are specifically stated in the offer and/or Sale Contract.
If the buyer has respected the guidelines mentioned in article 16, legal claims can only be made against the seller within a period of one year after delivery date / the execution of the service or performance.
If the seller acknowledges that he is guilty of an attributable breach or of acting in an unlawful manner, or if this has been determined in anotherÂ manner, then he is entitled to inform the buyer â€“ within a reasonable period of the buyer making the claim â€“ that he will perform free re-deliveryÂ and/or deliver the missing/to-be-repeated performance and/or repair. The seller must reasonably consider the interests of the buyer when makingÂ his choice. If the seller executes the performance within a reasonable period of the above mentioned notification, this means the agreement hasÂ been honored correctly and does not entitle the buyer to compensation. This will not apply if the buyer has,Â prior to the notification mentioned in the first section, correctly terminated the agreement by law and/or has started a claim for dissolution and thisÂ has been permitted.
If, besides or instead of what is determined in these general conditions in relation to his liability, it is determined that he is required to pay compensationÂ under any basis whatsoever, the seller restricts his liability, except in case of deliberate or conscious recklessness on the part of his board orÂ subordinates, to maximum the price mentioned in the case in question/the concerned performance (excluding VAT). The buyer releases the sellerÂ from all claims from third parties â€“ including in relation to product/service liability â€“ if the total of these claims exceeds the maximum mentioned above.
If the seller is hindered in fully or partly executing his obligations towards the buyer as part of the agreement due to demonstrable force majeure, heÂ can, as he sees fit, suspend these obligations for a reasonable period or fully or partly dissolve the agreement via an appropriate written declaration,Â without the seller being liable for any damage the buyer may incur as a result.
In case of partial dissolution, the buyer will be required to pay the corresponding price for the performance carried out by the seller.
If the seller makes agreements with more than one buyer in relation to identical or comparable products and is hindered by force majeure inÂ performing his obligations towards all buyers as part of these agreements, he is entitled to use his own reasoned insight to determine whichÂ agreements will be honored and to what extent.
In this article, the term â€œforce majeureâ€ means all circumstances that cannot be attributed to the seller or cannot reasonably be attributed as hisÂ responsibility and risk, and which hinder or reduce his ability to honor his obligations to the extent that compliance can no longer be reasonablyÂ expected, including but not limited to war, risk of war, fire, rebellion, explosion, troublesome weather conditions, flooding, strike action, company sit-ins,Â exclusions, business disruptions, illness of personnel, transport methods, import and export bans, other legal or other government restrictions atÂ home and abroad, disruptions in energy supplies and failure to supply, or late or inappropriate supply, by suppliers, irrespective of whether theÂ circumstance in question could have been foreseen at any given moment.