General Terms of Sale
This General Terms of Sale are applied by Seller (Zechstein Minerals B.V.) to all sales. Changes or exclusion from any part of these terms are only applicable after Seller’s written confirmation. In case of conflict between these General Terms of Sale and Buyer’s purchase conditions, the General Terms of Sale shall prevail.
Unless parties have agreed otherwise in writing all Seller’s quotations and price lists are issued without commitment.
Prices are based on today’s cost factors and today’s rate of exchange between the Euro and the currency applied in the sales agreement. Therefore, Seller reserves the right to adjust prices for goods still to be supplied, provided such adjustment is not expressly excluded by Seller in a written confirmation.
Unless otherwise specified in writing, pictures, drawings, monsters and other data provided by Seller in offers and brochures etcetera, are to be considered as average data about the products of the Seller. No rights can be derived from this information. The quantity of goods determined by Seller shall be final. However, Buyer may at all times be represented during loading.
Delivery dates stated by Seller conform to Seller’s best estimates. Seller will nog accept any liability for any default in delivery or for any loss arising there from, however caused. Delivery is considered to take place at the moment the goods leave Seller’s works or warehouse (in accordance with clause 6).
The goods are delivered Ex Works (at one of Seller’s warehouses, unless otherwise agreed) in accordance with the most recent edition of interpretation of trade terms of the International Chamber of the Commerce (Incoterms). Therefore, Seller is not responsible for loading the goods on the vehicle provided by Buyer. Buyer bears the full cost and risk involved in bringing the goods from there to the desired destination. In as far as parties have agreed that the transport of the goods shall be organized by Seller, this transport shall take place on behalf of the Buyer. Buyer shall in any event bear the risk and all charges, including demurrage incurred in respect of the goods in the course of their transit until the arrival at the named point of destination, as well as unloading costs including lighter age and wharf age charges, for as far as this is nog Seller’s responsibility according to the terms arranged in the Incoterms.
Any claim based on default must be made by Buyer as soon as possible in writing and not later than 7 days after delivery in accordance with clause 5 and 6, unless otherwise is agreed in writing. Seller may refuse to accept any goods returned without his prior written consent, even when such goods returned are undamaged and covered by the legally required transport documents. Goods returned by Buyer and accepted by Seller as defective shall at Seller’s option either be replaced without charge or be credited in accordance with the price paid for these goods by Buyer. To reduce possible damage Buyer shall follow the instructions of Seller with respect to the method of storage and/or return of these goods. Seller is not responsible for any damage caused by the delivery of faulty goods such as material damage, personal injury, business damage interruption or any other consequential damage. Articles 6:265 and 7:21 of the Dutch Civil Code (“Burgerlijk Wetboek”) are not applicable. Seller’s liability for any fault of negligence proven shall in no event exceed the invoice amount of the goods delivered. Claims or complaints shall not give Buyer the right to refuse or postpone payment. Delivery of faulty goods and any other similar circumstances shall not give Buyer the right to dissolve the sales agreement.
Seller’s liability for any damage caused by or related to any contract with Buyer will always be limited to the total consideration paid by the Buyer for the order in question, excluding taxes and expenses, unless the parties have agreed in writing that the Seller is required to take out an insurance to cover such damage, which the Seller did. In that case, the liability of the Seller will be limited to the amount covered by the insurer, and as stipulated in the conditions of such insurance. No claim of any kind arising from an event or events occurring more than one year prior to the date the claim is made may be used or claimed by either of the parties. Seller does not assume liability for any indirect damage, including loss of business, salary, income or savings, and any losses that could have been avoided by the Buyer by acting responsively or by following the Seller’s general or specific recommendations.
Any advice given by Seller with regard to the storage, transport, use of application of the goods supplied shall be entirely without engagement. Seller shall never be liable for damage resulting either directly or indirectly from the fact that Buyer follows such advice.
Payment shall be made in full within the period stated on the invoice or within the period otherwise agreed in writing, in the currency stated on the invoice. Payment shall be considered to have been made when the amount has actually been received by Seller. In the case of overdue payments, Seller reserves the right to charge interest (“wettelijke handelsrente”), and Seller furthermore reserves the right to postpone further shipments until payment of outstanding debts as been made.
All taxes, of whatsoever nature, required to be paid in connection with the sale of goods, shall be borne by Buyer even when such tax obligations have come into force after the conclusion of the sales agreement. All banking charges required to be paid for a transfer of money shall be paid by Buyer.
Notwithstanding Clause 6, delivered goods shall fully remain property of Seller (goods sold subject to retention of title) until all receivables, on whatever legal grounds, have been fully paid up. Buyer will indemnify Seller for any damage in relation to the loss of such property due to resale, processing, combining or mixing of the goods.
If and to the extent either party is hindered in or prevented from performance of compliance with any obligation under this contract by an event of force majeure, it shall immediately give written notice thereof to the other party and the performance of compliance with such obligations shall be suspended. Such suspension shall continue so long as the performance or compliance with any obligation under this contract is so prevented or hindered. Seller shall be entitled in such case to postpone deliveries or to impose quota’s. Seller shall never be obliged to supplement any shortage through other suppliers. If such suspension continues fo more than 20 (twenty) days after giving the written noticed the parties shall agree to a solution equitable to both of them. For the purpose of this article an event of force majeure means any event beyond the control of either party, such as earthquakes, strikes, lock-outs, trade disputes, governmental action, war or hostilities.
Buyer will secure all intellectual and industrial property rights of Seller and the companies affiliated with Seller. A transfer of any of these rights of the granting of any license is not intended. The Buyer will give immediate written notice of all possible infringements by third parties of any of these intellectual and industrial property rights it is aware off.
Dutch law applies to all offers made and all contracts concluded between Seller and Buyer. Should any of the clauses of these General Terms of Sale be wholly or partially invalid or void, the validity of the remaining clauses or parts thereof shall not be affected. All disputes arising in connection with any offers or contracts between Seller and Buyer hall be finally settled by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce at The Hague, The Netherlands, by one or more arbitrators appointed in accordance with said Rules unless the dispute is of non-international nature in which case it shall be finally settled by arbitration in accordance with the Rules of The Netherlands Arbitration institute (Nederlands Arbitrage Instituut), notwithstanding the right of Seller to institute proceedings before any court of law which would be competent without this choice of forum clause.