1. Definitions
1.1. GTC: General Terms and Conditions
1.2. Agreement: All agreements covering purchase, sales and/or contracting of work, between Seller and Customer.
1.3. Offer: Every offer, proposal or quotation Seller makes to Customer.
1.4. Seller: Minivalve International B.V. having place of business in Oldenzaal, Netherlands and acting in the capacity of seller, supplier and/or contractor in agreements, or, as the party making the offer.
1.5. Customer: All parties which conclude an agreement with Seller, within the meaning of Clause 1.2, or receive an offer within the meaning of Clause 1.3.
1.6. Complaints: All Customer grievances concerning the quality or quantity of goods and services supplied.
1.7. Sellers’ depot: Sellers’ commercial properties at which Seller segregate goods for delivery and prepare them for dispatch.
1.8. Standard goods: articles or work according to Sellers standard specifications.
1.9. Special goods: articles of work according to specifically agreed specifications between Seller and Customer.
2. Application
2.1. These GTC apply to all agreements concluded by Seller and all offers that Seller makes.
2.2. Regardless of Customers’ notification, agreements concluded with Seller and offers made by Seller shall not be governed by any other terms and conditions, such as those of the Customer, without Sellers’ explicit written consent.
2.3. If any provision of these GTC shall be held illegal or unenforceable, that provision shall be eliminated to the minimum extent necessary so that these GTC shall otherwise remain in full force and effect.
2.4. Deviations from these GTC are permissible only by written consent signed by both parties.
3. Offers/conclusion
3.1. Sellers’ offers are made without obligation. Any final term stipulated in an offer shall be binding on Customer only. Seller has the right to withdraw its offers within 5 days of receiving Customers’ confirmation of acceptance of Sellers’ offer.
3.2. Subject to the withdrawal option, within the meaning of Clause 3.1, agreements shall be concluded as of the date on which Seller receive written acceptance of its offer from Customer. If Customer accepts Sellers’ offer subject to variations of minor significance, such as but not limited to the referencing of its own technical specification for the ordering of Sellers’ standard goods or to referencing Customers’ own standard terms and conditions of purchase, such variations shall not form part of the agreement with Seller and an agreement shall be concluded in accordance with Sellers’ offer.
3.3. Agreements shall also be deemed to have been concluded when Seller deliver goods in accordance with clause 5.
4. Prices
4.1. Unless otherwise agreed, prices are as stated in Sellers’ offer or in Sellers’ price list effective on the delivery date exclusive of taxes and duties and of transport and insurance costs.
5. Delivery
5.1. Unless otherwise agreed, deliveries shall be deemed to have taken place after Seller has segregated goods for delivery and prepared them for dispatch at its depots, and have notified Customer thereof in writing.
5.2. Seller has the right to make partial-deliveries.
5.3. Delivery dates shall not be regarded as final. In the event of late delivery, Customer is required to serve Seller with a notice of default in writing, allowing Seller a reasonable period within which to fulfil its delivery commitments, during which Customer has no right to claim any compensation for damages from Seller. This Clause shall not apply in the event of temporary or enduring shortcomings, within the meaning of Article 6, for which Seller cannot be held responsible.
6. Force majeure
6.1. In the event of shortcomings due to enduring circumstances for which Seller cannot be held responsible, but which entail that Seller is unable to meet its commitments, Seller has the right, within a reasonable period, to cancel all or part of the agreement by means of written notification, without liability to pay Customer any compensation for damages.
6.2. Shortcomings due to circumstances for which Seller cannot be held responsible, including those within the meaning of Clause 6.1, include shortcomings due to war, the threat of war, terrorist attacks, acts of God, unrest, fire, factory breakdowns, strikes, blockades, lock-outs, traffic disruptions in supplies of raw material and/or semi-manufacturers, illness of employees and the failure of sub-suppliers to fulfil their commitments, or to do so on time.
6.3. Shortcomings due to circumstances for which Seller cannot be held responsible shall be deemed to be enduring if the activity in question cannot be performed within 60 days of the onset of the circumstances concerned.
6.4. If the activity can be performed within 60 days, the circumstances giving rise to the shortcomings are not deemed to be enduring and neither Seller, nor the Customer, may cancel the agreement. Sellers’ performance commitment shall be suspended, without liability to pay the Customer any compensation for damages.
7. Payment
7.1. Payment shall be made within 30 days of the date of invoice, without cost or deductions in the invoiced currency to Sellers’ offices or to one of Sellers’ bank accounts.
7.2. Payments shall first be applied to the settlement of costs, and then so to the settlement of interest and thereafter to the settlement of outstanding invoices, in chronological order.
7.3. If Customer fails to pay on time he shall be in default without notification thereof being required, and shall be liable to pay Seller interest of 1.5% of the invoice amount to each month or parts of a month following the payment date,
7.4. If Customer remains in default for more than 30 days Seller has the right to institute debt collection proceedings. In such case, Customer is liable to cover Sellers’ extra-judicial collection costs, the minimum amount being Euro 250.00
8. Reservation of ownership
8.1. Delivered goods shall remain Sellers’ property until Customer has settled all of Sellers’ receivables under the purchasing/contracting agreements covering such goods.
9. Warranty and complaints
Seller guarantees that the delivered goods are merchantable and shall conform to Sellers’ standard specifications or to special specifications if Seller has explicitly agreed to such special specification in writing.
SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED.
9.1. Immediately on delivery, Customer shall count, measure, weigh and inspect the goods for visible defects, and for invisible defects that are easily detected, prior to storage or use. Once used, goods are deemed to satisfy the terms of the agreement unless they prove to have invisible defects that cannot easily be detected.
9.2. Complaints concerning quantities, dimensions, weights, visible defects and easily detectable invisible defects must be submitted to Seller in writing within 14 days of the delivery of the goods.
9.3. If, within 6 months of the date of delivery, goods that Seller supply prove to have invisible defects that are not easy to detect, complaints must be submitted in writing within 14 days of the discovery of such defect.
9.4. Customers shall accept the usual 10% tolerances in our branch of industry regarding quantities, and weights.
9.5. By Customers request, Seller is required to repair, replace or at Sellers’ option refund the invoice value of goods which do not satisfy the standards described in Clause 9.1, providing that the goods have not been stored for more than 6 months and Customer conducted the checks and followed the complaints procedures described in Clauses 9.2, 9.3 and 9.4, thoroughly and in good time.
9.6. Goods may be returned to Seller only with Sellers’ written consent, both to their return and to the method of transport. Customer continues to bear the risk of the goods.
9.7. Complaints shall in no event entitle Customer to suspend its payment commitments.
10. Limitation of liability
10.1. Subject to the provisions of Section 6:185 of the Netherlands Civil Code, Sellers’ sole and exclusive remedy for breach of warranty or agreement shall be the repair or replacement of goods, or at Sellers’ option the refunding of the invoice value, as described in Clause 9.5. In particular, Seller is not liable for direct or indirect damages, consequential damages, loss of profits, emotional injury, damages caused by subordinates, assistants and/or sub-contractors, even when attributable to malicious intent and/or gross negligence on their part, or for damages caused by the use of aids, supplied by Customer or by third parties.
10.2. If Customer resells goods supplied by Seller, or if it processes or incorporates such goods a in new products that it subsequently sells, Customer is required to arrange adequate insurance cover against product liability risk assigned under Section 6.185 of the Netherlands Civil Code. Customer undertakes to send Seller a copy of the relevant policy at Sellers’ earliest request.
10.3. If Seller furnishes Customer with advice or assistance concerning any goods or any system or equipment in which such goods may be installed, the furnishing of such advice or assistance will not subject Seller to any liability whether in contract, tort(including negligence and strict liability) or otherwise.
10.4. Customer indemnifies Seller against all third party claims for which Seller cannot be held liable under the foregoing.
11. Cancellation
In all cases in which the Customer cancel an agreement with Seller, Customer is required to compensate Seller for all damages, costs and loss of profit.
12. Infringement of third-party rights
Customer shall guarantee that its use of Sellers’ goods shall not infringe on the intellectual property rights of third parties. A single instance of such infringement shall in itself, afford Seller the right of rescinds an agreement by written notification. The Customer indemnifies Seller against all claims, damages, losses, expenses including attorney fees from third party rightful claimants in relation to such infringement.
13. Special goods
13.1. Customer shall inspect special goods against agreed written specifications within 14 days of their dispatch by Seller. The special goods shall be deemed to have been approved if the notification of rejection is not received within 14 days.
13.2. Unless explicitly agreed otherwise, all models, moulds, samples, forms, drawing and all other equipment and instructions relating to the production of special goods are, and shall remain Sellers’ property. Tooling charges to Customer are a contribution to the creation of the tooling and do not imply any ownership by Customer to the tooling or its trade secrets.
13.3. Unless otherwise agreed in writing Customer specific tooling shall be replaced, repaired and maintained at the Customers’ expense.
13.4. Seller has the right to scrap tooling, if they have not been used for five years. Seller shall notify Customer in writing, 3 months prior to the end of the 5-year period, of Sellers’ intention to scrap the mould.
13.5. Unless explicitly agreed otherwise, Seller has the right to produce any special goods that Seller produce for Customer for third parties as well.
14. Changes
Seller will notify Customer in writing of changes in the manufacturing of goods that affect form, fit or function but reserves the right to make other changes.
15. Confidentiality
15.1. Information such as designs, know-how, specifications, test results, marketing information and any other information which Seller makes available to a Customer is to be treated as trade secret and may not be copied, disclosed or revealed to third parties without Sellers’ written consent. They must be returned to Seller immediately upon Sellers’ request.
15.2. Customer shall not resell or otherwise make available to the public domain any goods supplied under a separate confidentiality agreement to prevent early disclosure of Sellers’ intellectual property to the public domain.
15.3. Goods designed by Seller are proprietary and may not be manufactured or caused to be manufactured by any other party.
15.4. For each infringement of this Clause, the Customer shall be liable to pay a fine of Euro 50,000.00 payable immediately on demand, plus a further Euro 5,000.00 for each day that such infringement continues.
16. Applicable law
All agreements concluded with Seller, are subject to Netherlands law and Netherlands international private law, not including the 1980 Vienna Convention of the International Sale of Goods.
17. Place of execution
The execution of agreements takes place at the location at which Seller is established.
18. Disputes
All disputes relating to agreements concluded with Seller shall be brought before the competent court, as designated by law, for the location at which Seller is established, unless a different Cantonal Court is stipulated to be the competent court under Article 100-1 of the Netherlands Code of Civil Procedure.
19. Evidence
19.1. In the absence of comprehensive evidence to the contrary, Sellers’ administrative records are decisive as regards the legitimate extent of the commitments of Customer through agreements concluded with Seller.
19.2. In the absence of comprehensive evidence to the contrary, the quantities, measures and weights stated in packing lists, invoices and waybills for transactions between Seller and Customer shall be deemed to be accurate.
20. Date of commencement
These CTC come in effect for all agreements concluded after the first day of publication on Sellers’ website www.minivalve.com/salesterms.htm. These GTC were first published on Sellers website on January 1, 2010