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GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY AICHI SALES OFFICE B.V.

Established and having its registered office in Oosterhout,
Koopmansweg 3

Article 1: Definitions

Clause 1
In these General Terms and Conditions, the following definitions apply:

  • “User”: the user of these General Terms and Conditions, the private limited liability company Aichi Sales Office B.V.;

  • “Counterparty”: the party that has accepted the applicability of these General Terms and Conditions by signing a document or otherwise.

Clause 2
Where reference is made in these General Terms and Conditions to “goods”, this shall include both the goods to be delivered by the User and the services to be provided by the User.

Clause 3
Where reference is made in these General Terms and Conditions or in agreements concluded between the User and the Counterparty to an internationally defined trade term, such term shall be understood in accordance with the Incoterms 2000 published by the International Chamber of Commerce.

Article 2: Applicability

Clause 1
Unless expressly agreed otherwise in writing, these General Terms and Conditions apply to every agreement between the User and the Counterparty.

Clause 2
The provisions of the preceding clause also apply to subsequent or additional agreements between the User and the Counterparty, even if the applicability of these General Terms and Conditions has not been expressly stipulated.

Article 3: Offers

Clause 1
All offers, in whatever form, are non-binding for the User unless they include a term for acceptance and are based on delivery under normal circumstances and during normal working hours.

Clause 2
If a non-binding offer is accepted, the User is entitled to revoke the offer within two days after receipt of the acceptance.

Clause 3
Images, catalogues, drawings and other data provided by the User are subject to change without prior notice and are not binding.

Clause 4
All drawings, images, catalogues and other documentation provided by the User remain the property of the User at all times.

Clause 5
An agreement shall only be concluded after the order placed by the Counterparty has been confirmed in writing by the User.

Clause 6
Agreements or commitments made by representatives or employees of the User are not binding unless confirmed in writing by the User.

Article 4: Nature and Scope of the Agreement

Clause 1
The scope and nature of the agreement are determined by the order confirmation issued by the User, or, in the absence thereof, by the User’s offer.

Clause 2
The agreement only covers the delivery of those goods expressly agreed upon.

Clause 3
The User shall not be bound by any deviation from or addition to the scope and nature of the agreement unless expressly agreed in writing. In such case, the User is entitled to adjust the agreed price, method of delivery, delivery time and other parts of the agreement accordingly.
If such deviation or addition results in a longer delivery time, the User shall in no event be liable for penalties or damages due to late delivery.

Clause 4
Without prejudice to the other provisions of these General Terms and Conditions, and unless expressly agreed otherwise in writing, the Counterparty may not derive any rights from deviations of less than 10% in agreed quantities or weight.

Article 5: Price

Clause 1
Unless expressly agreed otherwise in writing, prices quoted by the User are based on delivery ex works, warehouse or other storage location, exclusive of VAT, import duties or other taxes, levies or charges, and exclusive of loading, unloading, transport and insurance costs, all of which shall be borne by the Counterparty.
The User shall not recognize any exemption from taxes or duties unless the Counterparty provides a valid exemption certificate.

Clause 2
Prices stated in offers are based on the cost-determining factors applicable at the time of the offer.
If, between the date of the offer and the date of delivery, costs of raw materials, materials, equipment, energy, wages, social charges, taxes or other cost factors change, the User is entitled to adjust the agreed prices accordingly.

Clause 3
Unless agreed otherwise in writing, prices are stated in euros. Exchange rate risks are borne by the Counterparty.

Clause 4
If the price is agreed in a currency other than euros, the amount payable in euros at the time of payment shall not be lower than the euro value applicable at the time the agreement was concluded.

Clause 5
Any additional work or materials supplied beyond the originally agreed quantities or services shall be charged as additional work.

Article 6: Installation

Clause 1
Installation is carried out at the User’s standard rates unless the costs are expressly included in the agreed price. Installation personnel shall only install materials supplied by the User or included in the order. The User is not liable for installation work outside the scope of the order.

Clause 2
The Counterparty shall provide lifting assistance, lubricants, cleaning materials, heating and lighting required during installation.

Clause 3
If installation cannot be carried out without interruption due to causes beyond the User’s control, the User is entitled to charge the resulting additional costs at the standard rates.

Clause 4
After installation personnel have left the site, complaints regarding the execution or duration of the work will no longer be accepted.

Clause 5
The Counterparty shall, at its own expense and risk, ensure that:

  • all required permits, documents and data are obtained;

  • suitable accommodation and legally required facilities are available for the User’s personnel;

  • access roads are suitable for transport;

  • the construction site is suitable for storage and installation;

  • lockable storage facilities are available;

  • necessary auxiliary personnel, tools and materials are available in time and free of charge;

  • all safety measures are taken and maintained;

  • the goods are present at the correct location during installation.

Article 7: Delivery Time

Clause 1
Delivery time commences on the latest of the following dates:

  • the date the agreement is concluded;

  • the date the User receives all required documents and materials;

  • the date the advance payment due under the agreement is received.

Clause 2
Delivery times are never considered fatal deadlines unless expressly agreed otherwise. In the event of late delivery, the User must be notified of default in writing.

Clause 3
If delivery is prevented wholly or partly by force majeure, the User is entitled to suspend delivery or terminate the agreement, in whole or in part, without liability for damages.

Clause 4
If delivery is delayed due to circumstances not attributable to the User, the agreed prices shall remain payable as if delivery were timely.

Clause 5
If, due to delay, the User must take back or store goods, the User is entitled to charge 2% per month of the value of the goods.

Clause 6
If the Counterparty fails to take delivery after the delivery period has expired, the goods shall be stored at the Counterparty’s risk and expense. The User may terminate the agreement and claim damages.

Clause 7
For deliveries of generic goods not accepted in time, the User may designate the goods for delivery and fulfill its obligation accordingly.

Article 8: Force Majeure

Force majeure means any circumstance beyond the User’s control that prevents performance of the agreement, including war, riots, strikes, transport difficulties, fire or serious disruptions in the User’s or suppliers’ operations.

Article 9: Delivery and Acceptance

Clause 1
Unless agreed otherwise, delivery takes place ex warehouse. Goods are deemed delivered and accepted upon offering or loading.

Clause 2
If delivery free of charge is agreed, goods are deemed delivered upon arrival at the specified address.

Clause 3
Services are deemed delivered and accepted upon completion of the work.

Article 10: Transfer of Risk

Risk transfers to the Counterparty upon delivery as defined in the previous article.

Article 11: Transport

Clause 1
Unless agreed otherwise, the User determines the mode of transport without liability.

Clause 2
Transport is at the Counterparty’s risk and expense, even if transport documents state otherwise.

Article 12: Retention of Title

Clause 1
The User retains ownership of all goods delivered to the Counterparty until the purchase price for all such goods has been paid in full.

Clause 2
If, within the framework of the agreement concluded with the Counterparty, the User performs remunerable services for the benefit of the Counterparty, the retention of title shall also apply until the Counterparty has fully settled these claims of the User.

Clause 3
The retention of title shall also apply to claims that the User may have against the Counterparty arising from a breach of one or more obligations by the Counterparty.

Clause 4
As long as ownership of the delivered goods has not passed to the Counterparty, the Counterparty is not permitted to pledge the goods or grant any other rights therein to third parties, subject to the provisions of the following clause of this article.

Clause 5
The Counterparty is entitled to sell and transfer the goods delivered under retention of title to third parties in the normal course of its business. In the event of sale on credit, the Counterparty is obliged to stipulate a retention of title vis-à-vis its customers in accordance with the provisions of this article.

Clause 6
The Counterparty undertakes not to assign or pledge claims it acquires against its customers to third parties without the prior written consent of the User. Furthermore, at the User’s request, the Counterparty undertakes to pledge such claims to the User in accordance with Article 3:239 of the Dutch Civil Code (BW), as additional security for all claims of the User against the Counterparty, regardless of their legal basis.

Clause 7
The Counterparty is obliged to store the goods delivered under retention of title with due care and to clearly mark them as the property of the User.

Clause 8
For the duration of the retention of title, the Counterparty is obliged to insure the goods against fire, explosion and water damage, as well as against theft, and to present the insurance policies to the User for inspection upon first request.

All claims of the Counterparty against insurers under the aforementioned insurance policies shall, at the User’s request, be pledged by the Counterparty to the User in accordance with Article 3:239 BW, as additional security for all claims of the User against the Counterparty, regardless of their legal basis.

Clause 9
If the Counterparty fails to fulfil its payment obligations towards the User or if there are reasonable grounds to fear that it will fail to do so, the User is entitled to repossess the goods delivered under retention of title. After repossession, the Counterparty shall be credited with the market value of the goods, which shall in no event exceed the original purchase price, less the costs incurred in connection with the repossession.

Article 13: Transfer of Rights and Obligations

Without the prior written consent of the User, the Counterparty is not entitled to transfer its rights and obligations under the agreement, in whole or in part, to third parties and/or to encumber them with any real right, limited real right or personal right.

Article 14: Payment

Clause 1
Unless expressly agreed otherwise in writing and without prejudice to the provisions of the following clauses of this article, payments to the User shall be made net within thirty (30) days from the invoice date; this term shall be deemed a strict deadline.

Clause 2
All payments shall be made without any deduction and/or set-off in the agreed manner.
The Counterparty is never entitled, for any reason whatsoever, to suspend payments or to set off payments against (alleged) claims against the User.

Clause 3
The User is at all times entitled to require full or partial advance payment for each delivery or partial delivery.

Clause 4
If the User allows payment of the principal amount or part thereof in instalments for certain goods to be delivered or delivered goods, the value added tax (VAT) on the total amount of the consideration shall become due simultaneously with the first instalment, unless expressly agreed otherwise in writing.

Clause 5
Costs advanced by the Counterparty on behalf of the User shall be settled upon payment of the final instalment.

Clause 6
The User is at all times entitled, prior to delivery or continuation of delivery, to require the Counterparty to provide adequate security for the fulfilment of all or part of its payment obligations.

Clause 7
The User is entitled to suspend further deliveries if the Counterparty is in default of its payment obligations, fails to comply with its obligation to provide security, or otherwise fails to fulfil one or more of its obligations towards the User, even if a fixed delivery time has been agreed. This is without prejudice to the User’s right to terminate the agreement and/or claim full damages, and without prejudice to any other rights to which the User may be entitled.

Clause 8
Unless expressly agreed otherwise, all payments made by the Counterparty, irrespective of their designation, shall first be applied to costs, then to accrued interest, and finally to the principal amount of the unpaid invoice. If several invoices remain unpaid, payments shall first be applied to the principal amount of the oldest invoice.

Clause 9
If the Counterparty fails to pay within the agreed term, it shall by operation of law be in default and shall owe the User, from the due date of the unpaid invoice(s) and without any further notice of default, interest at the statutory commercial interest rate as referred to in Article 6:119a BW, increased by 2% on the outstanding amount.

Clause 10
If the Counterparty is in default as referred to in Clause 9 of this article, all claims of the User against the Counterparty shall become immediately due and payable in full.

Clause 11
In the event of payment by bills of exchange or cheques, the costs associated with such bills or cheques shall be borne by the Counterparty. The same applies to collection costs.

Article 15: Extrajudicial and Judicial Costs

All costs incurred by the User in connection with the enforcement of its claims – including costs exceeding the court-awarded legal costs – shall be borne by the Counterparty. The extrajudicial costs shall be calculated proportionally based on the amount of the principal claim to be collected or on the value of the performance otherwise owed by the Counterparty, in the manner set out below, with a minimum amount of EUR 150.

The User is furthermore entitled at all times to claim the actual extrajudicial costs incurred by it, insofar as these exceed the amount calculated in accordance with the schedule below.

The extrajudicial costs shall be calculated as follows:

  • over the first EUR 2,950: 15%

  • over the amount exceeding EUR 2,950 up to EUR 5,900: 10%

  • over the amount exceeding EUR 5,900 up to EUR 14,750: 8%

  • over the amount exceeding EUR 14,750 up to EUR 59,000: 5%

  • over the amount exceeding EUR 59,000: 3%

Article 16: Warranty and Complaints

Clause 1
Unless expressly agreed otherwise in writing, the User grants no warranty whatsoever.

Clause 2
If a warranty is granted by the User, the following provisions shall apply to such warranty, unless expressly agreed otherwise in writing between the parties.
If a warranty is granted, the User guarantees, subject to the limitations set out below, the fitness of the goods supplied by it for the duration of the agreed warranty period. If the goods do not conform to the agreement, the User shall, at its discretion and insofar as reasonably possible, deliver the missing part, repair the delivered goods, or replace the delivered goods, unless the deviation from the agreed specifications is insignificant or the goods have been lost or deteriorated after the moment at which the Counterparty could reasonably have expected reversal, because the Counterparty failed to exercise due care in preserving them.
In the event of replacement or reimbursement, account shall be taken of the use already made of the delivered goods.
Unless expressly agreed otherwise in writing, the fulfilment of the User’s warranty obligations shall apply exclusively within the Netherlands.
The warranty shall only apply if the Counterparty has fully complied with all its obligations towards the User. Furthermore, the User shall not be bound by any warranty of whatever nature if the goods supplied by it have been processed, if the Counterparty has failed to strictly comply with the User’s recommendations and the instructions for use and installation issued by the manufacturer and/or the User’s suppliers, or if third parties, whether or not at the instruction of the Counterparty, have made changes to the goods supplied by the User without the User’s prior written consent.
With regard to goods and/or raw materials supplied by the User but obtained from third parties, the foregoing provisions shall apply only insofar as and to the extent that the supplier of such goods and/or raw materials has granted a warranty to the User. Except in cases of intent or gross negligence on the part of the User’s management or senior employees, the fulfilment of the User’s warranty obligations shall constitute the sole remedy, and the User shall not be liable for any further damages, in whatever form.

Clause 3
Complaints regarding externally visible defects, whether arising from a granted warranty or otherwise, must be submitted in writing within eight (8) days after delivery; this period shall constitute a strict time limit.

Clause 4
Complaints regarding defects that are not externally visible, whether arising from a granted warranty or otherwise, must be submitted in writing within eight (8) days after discovery and in any event no later than three (3) months after delivery; both periods shall constitute strict time limits.

Clause 5
Complaints regarding the amount of invoices issued by the User must be submitted in writing within eight (8) days after the invoice date; this period shall also constitute a strict time limit.

Article 17: Returns

Clause 1
Returns shall only be accepted after prior written consent of the User and provided that such returns are made carriage paid.

Clause 2
Acceptance of any return does not constitute automatic approval by the User.

Article 18: Liability

Clause 1
Subject to the provisions of Article 16 of these General Terms and Conditions, the User shall never be liable for any damage whatsoever, except in cases of intent or gross negligence on the part of the User’s management or senior employees.

Clause 2
Without prejudice to the provisions of the preceding clause, any liability of the User for business interruption losses or other indirect damages is expressly excluded.

Clause 3
Without prejudice to the provisions of the preceding clauses, in the event of any liability on the part of the User, its obligation to pay damages shall at all times be limited to a maximum of the amount paid out in the relevant case under the User’s liability insurance.

Clause 4
Without prejudice to the provisions of the preceding clauses, any claim of the Counterparty against the User shall lapse one (1) year after the occurrence of the damage or the commencement thereof.

Article 19: Indemnification

Subject to cases of intent and/or gross negligence on the part of the User’s management or senior employees, the Counterparty shall indemnify and hold harmless the User against all costs, damages and interest incurred by the User as a direct or indirect result of claims brought by third parties in connection with or arising from the performance of the agreement.
The Counterparty is obliged under the agreement to comply with any third-party notice or indemnification request issued by the User.

Article 20:

The Counterparty shall indemnify and hold harmless the User against all costs, expenses or losses arising from the infringement of patents, intellectual property rights and/or trademarks, insofar as such infringement results from the execution of a design, specifications or instructions provided by the Counterparty.

The Counterparty shall immediately inform the User of any claim or threatened claim based on such alleged infringement and shall grant the User the opportunity, if desired, to participate in any proceedings and/or in the defense against any related claims brought by third parties.

Article 21: Proof of Records

Subject to proof to the contrary, the data contained in the User’s records and administration shall be decisive and binding for the agreement.

Article 22: Suspension and Termination

Clause 1
Without prejudice to the provisions of the preceding articles regarding suspension and termination, the User shall be entitled, if the Counterparty fails to fulfil any of its obligations arising from the agreement concluded between the User and the Counterparty, fails to do so properly or in a timely manner, if serious doubts arise as to whether the Counterparty will be able to fulfil its obligations under said agreement, or in the event of insolvency, suspension of payments, legal guardianship, cessation of business, liquidation of the Counterparty, full or partial transfer or (silent) pledge of its business or of a substantial part of its assets or receivables, either without notice of default or judicial intervention to suspend the agreement for a maximum period of six (6) months, or to terminate the agreement in whole or in part insofar as it has not yet been performed. The User’s right to compensation for damages suffered and/or loss of profit shall remain unaffected.

Clause 2
In the event of termination as referred to in the preceding clause, the agreed price owed to the User, less any amounts already paid and less any costs not yet incurred by the User, shall become immediately due and payable.

Clause 3
In the cases referred to in Clause 1 of this article, all claims of the User against the Counterparty existing at that time shall become immediately due and payable in full.

Article 23: Dutch Text Prevailing

If these General Terms and Conditions are or become available in a foreign language, then in the event of any deviation from the Dutch text or any dispute regarding the interpretation of any provision, the Dutch text shall at all times prevail and be binding.

Article 24: Invalid Provisions

If one or more provisions of these General Terms and Conditions or of any agreement concluded with the Counterparty are null and void or otherwise unenforceable, the remaining provisions of these General Terms and Conditions and/or the relevant agreement shall remain fully in force and effect.

In such case, the parties shall make every effort to agree on a provision that most closely reflects the intent and purpose of the invalid or unenforceable provision.

Article 25: Disputes / Governing Law

Clause 1
All agreements to which these terms and conditions apply in whole or in part shall be governed by Dutch law.

Clause 2
The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is expressly excluded.

Clause 3
All disputes shall, to the exclusion of any other court, be submitted in the first instance to the competent court within the district of the District Court of Breda, the Netherlands, without prejudice to the User’s right to bring proceedings against the Counterparty before the competent court in accordance with the applicable rules of law.