GENERAL TERMS & CONDITIONS OF SALE (January 1, 2016)
for the supply and delivery of Eko Zilver Branded goods and/or other services by Interlink International B.V.(IIBV)
The General Sales Conditions of IIBV shall apply to all quotations, agreements and other legal relationships, which concern the supply and delivery of goods and/or services by IIBV.
It is the IIBV’s general policy that Quotations are drawn up and issued by IIBV’s Sales Organization or Agents for and on behalf of IIBV’s Head Office.
The Products and Services have to be ordered directly to the Head Office of Interlink International B.V. in the Netherlands.
1. DEFINITIONS
The following expressions shall have the meaning hereby assigned to them unless the context would obviously require otherwise.
Inspection Certificate: the written confirmation of acceptance of the Products or part of the Products to be issued by the Customer including Acceptance Test protocols indicating that the Acceptance Test requirements have been met.
Acceptance Test: test(s), to be carried out in accordance with Article 10, Acceptance.
Contract: the Contract concluded between Customer and IIBV as confirmed in IIBV’s order confirmation and issued by the IIBV’s Product Centre, either by acceptance of the Quotation by Customer or otherwise. Until the Contract has been concluded between the Parties, the word “Contract” used in these General Sales Conditions shall mean the Quotation.
Contract Effective Date: the date upon which the Contract comes into force is the date on which IIBV has received a partial or full payment as agreed in the contract.
Customer: the party to whom IIBV has made a Quotation or from whom IIBV has received an order, or to whom IIBV has made an Order Confirmation or with whom IIBV has otherwise entered into a relationship wherein IIBV is the supplier of Products and/or Services and legal successors in title to the Customer and any assignee of the Customer approved by IIBV.
Date of Acceptance: the date(s) when the Products or part of the Products are actually accepted or deemed as accepted in accordance with Article 10 Acceptance.
Incoterms 2000: trade terms as issued by the International Chamber of Commerce in Paris. Invoice: invoice send from IIBV Product Centre to the customer.
IIBV:Interlink International B.V.
Products Care & Washing: the Care & washing of the Products to be performed in accordance with the instructions shown on the packaging and/or in the leaflets provided by IIBV.
Intellectual Property Rights: copyrights, patents, drawing and model rights, trade names, trademarks, and all possible other intellectual property rights.
Order Confirmation: the order confirmation as issued by the IIBV Product Centre.
Quotation: the quotation made by IIBV to Customer. In case a quotation is explicitly market “Budgetary Quotation” it is for information purpose only.
Parties: Customer and IIBV collectively.
Products: Promotional Material such as Desk Display, Brochure Stands, Rotation Stands, Documentation and all other goods and works that have been or will be supplied from IIBV to Customer.
Service(s): the services from IIBV to Customer specified in the Contract or pursuant thereto, such as – if applicable – consulting, support with promotional material, and setting up points of sales.
Site(s): the actual location(s) where the points of sales are to be set-up.
Specifications: the technical and functional specifications of the Products as specified in the Contract or in the standard documentation of IIBV.
Quality: mean the Products insofar they form an integrated function specified in the Contract. Territory: the country of Sale of the Products as defined in the Contract.
Words indicating the singular only also include the plural and vice versa, where the context so requires. The headings of the Articles are for convenience only and shall not affect their interpretation.
2. GENERAL
2.1. These General Sales Conditions shall apply to all requests for Proposal, Quotations, Orders, Contracts, Invoices and other legal relationships between IIBV and Customer which concern the supply and delivery of Eko Zilver branded Products and/or Services by IIBV to Customer. These General Sales Conditions shall be applicable in so far as in a specific agreement itself it is not expressly stipulated otherwise in writing.
2.2. If upon acceptance of the Quotation or otherwise Customer declares its general conditions applicable, the reference to these General Sales Conditions contained in IIBV’s Quotation and Order Confirmation shall be seen as the only reference made and these General Sales Conditions shall be applicable. The general conditions of the Customer shall not be applicable.
2.3. In the event Customer has once entered into an agreement or other legal relationship with IIBV, to which these General Sales Conditions apply, Customer shall be considered to have tacitly agreed to the applicability of these General Sales Conditions to future agreements and/or other legal relationships with IIBV.
3. QUOTATION
3.1. Unless otherwise mentioned in the Quotation, the Quotation shall be valid for a period of thirty (30) days. 3.2. In case the Quotation is explicitly market “Budgetary Quotation” it is not binding in any way and only for information purpose.
3.3. A project Quotation is drawn up according to the written specifications handed to IIBV by the Customer. The Customer shall remain solely liable for any errors or inaccuracies, which might occur in these specifications.
4. ACCEPTANCE OF QUOTATION
4.1. The Customer is solely responsible for informing himself of the technical and commercial characteristics of the quotation.
5. ORDER CONFIRMATION
5.1. The Contract is only formed after acceptance by the IIBV Product Centre of the Customer’s order by written Order Confirmation, dispatched within maximum 2 weeks of receipt of this order.
5.2. Only the Specification, the price and conditions as marked on the Order Confirmation shall be of contractual value and shall bind the parties. Consequently, documents exchanged between IIBV and the Customer prior to the Order Confirmation may not be considered contractual documents.
5.3. Any claim with regard to the Order Confirmation shall be made within a period of 8 (eight) clear days from the Order Confirmation date. Once this time limit has elapsed the Contract is definitively concluded, under the conditions marked in the Order Confirmation.
5.4. The Order Confirmation date, plus 8 days, will be considered the Contract Effective Date in case no claims are received.
5.5. In case a claim is received before the Contract Effective Date, both parties shall Endeavour to settle this difference as soon as possible. The Contract Effective Date will be delayed until such agreement is reached.
5.6. The Contract conditions and in particular those relating to prices and delivery dates may only be modified by common written consent between IIBV and the Customer.
5.7. Due to continuous improvements and/or in view of satisfying the need and the appropriate execution of the order, IIBV reserves the right to modify products at any time, without prior notice, provided that the modification is functional identical.
6. PRICE AND PAYMENT
6.1. All Products and Services are sold and all prices are quoted Ex-Warehouse Or Ex-Works (IIBV Product Centre place to be mentioned) in accordance with Incoterms 2010.
6.2. The prices are exclusive of VAT, unless otherwise mentioned.
6.3. Prices are quoted and payments shall be made in Euro unless stated otherwise.
6.4. If and insofar the Contract mentions that the price is fixed and firm this will be the case provided that:
6.4.1. the Contract Effective Date will occur not later than the validity date mentioned in the Quotation and shall not be varied, and
6.4.2. the Specifications shall not be varied, and
6.4.3. no clauses are mentioned in the Contract regarding price adjustments due to changes in prices of the raw materials at the international market during the performance of the contract such as.
6.5. If and insofar prices are related to periodical payments, such as in the case of service contracts, IIBV has the right to change the prices as per the price fluctuation at the international market. IIBV shall take into account a notice period of thirty (30) days for such price changes. In the event such a price change results in a price raise higher than 5% (five percent), Customer shall have the right to terminate the Contract which termination shall have to take place by registered letter to be received by IIBV.
6.6. In all cases, if and insofar the Contract applies to Services or deliveries to be made later than 3 (three) months after the date of signing of the Contract, IIBV reserves the right to change the fees and prices mentioned in the Contract, unless a partial or full payment has been already been effected by customer. .
6.7. Customer shall make all payments to IIBV in accordance with the payment terms mentioned in the Contract. Invoicing shall take place upon delivery Ex-Warehouse or Ex-Works thereof and invoicing and payment of the Service shall take place upon performance thereof.
6.8. Payment(s) shall take place according to the payment terms agreed in the contract.
In case of down payment at order, payment shall be made within 8 (eight) clear days of the pro-forma invoice date.
6.9. Payments have to be made by direct bank transfers at the bank account as stated in the Invoice or via our website using Visa and Master Cards. For payments within a country, the payment terms are net. For international transactions: all expensed in relation with the payment in IIBV’s Product Centre country are to be born by the IIBV, those in the Customer’s country by the Customer.
6.10. An administration fee of 75€ (seventy-five Euro) is applied for each order for a total amount of less than 2500€ (two thousand five hundred Euro).
6.11. In the event of overdue payment, IIBV shall have the right to levy interest at a rate of 1.5% (one and a half percent) per month over the total amount overdue and IIBV shall furthermore have the right to demand payment of all of its cost incurred to collect the payment with an amount of at least 10% (ten percent) of the total overdue amount.
6.12. In the case of absence or suspension of payment, after formal notice by IIBV which has remained without effect for 15 (fifteen) days, IIBV reserves the right to suspend its own obligations until the overdue payment plus interest for delays and all other related charges such as: legal cost, collection charges, etc. are received.
6.13. IIBV has the right to compensate all of its claims for payment against Customer with claims for payment from Customer against IIBV even if such claims are not related.
6.14. Each Party shall be responsible and liable for any and all taxes and social premiums related to employees or other persons involved by the respective Party in the execution of the Contract and the Parties shall hold each other harmless for claims regarding such taxes and social premiums.
7. DOCUMENTATION
7.1. Where it is found that any part of the Documentation supplied is incomplete and/or incorrect, the Party discovering such deficiency shall notify the other Party and IIBV shall promptly complete and/or correct such part of the Documentation and IIBV’s liability for the Documentation being incomplete or incorrect is limited to such rectification. The Documentation and information is supplied subject to the provisions of Article 12, License.
8. TITLE AND RISK, TRANSPORTATION, STORAGE AND INSURANCE
8.1. Risk of loss of and damage to the Products or Documentation shall pass to Customer upon delivery in accordance with the delivery term Ex-Warehouse or Ex-Works (IIBV Product Centre place mentioned in the Contract) according to lncoterms 2000.
8.2. The Products shall remain the property of IIBV until IIBV has received full payment in accordance with the Contract, and -notwithstanding Article 12, License- title to and ownership of the Products shall pass to Customer upon receipt by IIBV of such payment.
9. CUSTOMER’S UNDERTAKINGS
9.1. Customer shall – if and insofar applicable – in a timely and proper manner:
9.1.1. make the Sites for Points of Sales available to IIBV’s personnel and subcontractors with all facilities as specified in the Contract;
9.1.2. provide IIBV with all information necessary for the design, engineering or display of the Products or otherwise necessary for IIBV to perform its obligations, such as, but not limited to, availability in time of design parts, banners, flags, display desks and brochures.
9.1.3. before any Product is put for display :
9.1.3.1. appraising the risks to the safety of the staff and assets and implementing the corresponding safety measures such as traffic, public places etc..
9.1.3.2. carrying out the installation and integration of Products, within its scope of use, in accordance with the standards, laws, regulations, agreements and professional practices;
9.1.3.3. evaluating the cost of interrupting operations and of making, in good time, all provisions for:
9.1.3.3.1. training the marketing and sales staff,
9.1.3.3.2. providing the corresponding samples,
9.1.3.3.3. estimating the duration of the period for installation and display.
9.1.3.3.4. carrying out the replacements and keep proven record of such claims;
9.1.4. supply at its cost the goods and staff required to carry out Acceptance Test. The Customer shall insure that the goods supplied for the Acceptance Test are rigorously identical to the delivery and/or samples supplied for drafting the Quotation and during the execution of the Contract;
9.1.5. otherwise assist IIBV in all respects reasonably required.
9.2. Should Customer fail to meet or be delayed in meeting its above mentioned undertakings, then Customer shall reimburse IIBV in respect of all related additional costs and expenses incurred without prejudice to IIBV’s right to postpone its undertakings. Such costs and expenses shall be paid within 30 (thirty) days from IIBV’s Invoice.
9.3. During the Contract period and for a period of six (6) months thereafter, Customer shall not employ or otherwise directly or indirectly hire or involve employees of IIBV that have been involved in the performance of the Contract.
10. ACCEPTANCE TEST
10.1. The Products sold is deemed to be in functional order and shall therefore not be subject to any procedure for acceptance, except if agreed in the Contract.
10.2. Acceptance Tests – if and insofar applicable – shall be carried out in respect of the Products or a part of the Products directly but within 14(fourteen) days after receipt of Products by the customer. The Acceptance Tests are designed to verify that the Products or part of the Products will perform in accordance with the Specifications of ATCC 6538, ATCC 8739 and MIL-STD285(1965 OR IEEEStd. 299(2006)
10.3. If the Products or part of the Products are not accepted by Customer due to the fact that the Acceptance Test results verify that the Products or part of Products do not fulfill the Specifications, the above mentioned written notice shall specify the particulars of the alleged deviation from the Acceptance Test requirements and where the same is alleged to exist or to have occurred. IIBV shall without undue delay and at its own expense remedy reproducible deviations and the Acceptance Test Procedure for the relevant or affected part shall, if Customer so requires, be repeated in accordance with the provisions of this Article 10.
10.4. Acceptance of the Products or part of Products shall not be refused because of minor deviations of +/-5% in weight, color, measurement, labeling, packing or packing material etc..
10.5. If IIBV has not received the said written notice from Customer, stating whether or not the Products or part of Products are accepted, within five (5) days after completion of the Acceptance Tests or from Customer’s receipt of the test protocol, as the case may be, the Products or Part of Products shall be deemed accepted as of the last day of said period of five (5) days.
10.6. When according to the above, the Products or part of Products are accepted or deemed accepted, such acceptance shall be confirmed by the issuance by Customer of an Acceptance Certificate. The Acceptance Certificate shall be issued promptly and at the latest three (3) days after IIBV’s written request. If the Acceptance Certificate has not been issued within such period, IIBV may on behalf of Customer issue such Acceptance Certificate.
11. DELAYS
11.1. If IIBV at any time has reason to believe that the performance i.e. delivery time etc. of its obligations will be delayed, IIBV shall promptly notify Customer and shall subsequently define in writing the estimated period of delay.
11.2. Circumstances outside of IIBV’s control, including but not limited to circumstances which are attributable to Customer such as delay in payment or delay of any of Customer’s undertakings causing IIBV a delay, shall entitle IIBV to postpone any of its undertakings to such extent as is reasonable. For delays attributable to Customer, IIBV shall be reimbursed for its costs.
12. LICENCE
12.1. Subject to the terms and conditions set forth in this Article 12, Customer is hereby granted a nonexclusive and nontransferable license to sell the Eko Zilver branded products for Customer’s own marketing and sale of the Products in accordance with the Contract.
12.2. Notwithstanding anything in the Contract to the contrary, it is understood that Customer receives no title or ownership rights to the EKO Zilver Brand, the Logo or Documentation, and all such rights shall remain with IIBV or its suppliers.
12.3. Customer agrees that the technical specification and the packing material of the Products and Documentation shall be treated as proprietary and a trade secret of IIBV, and shall be subject to the provisions of Article 20, Confidentiality.
12.4. In pursuance of the foregoing Customer shall, subject to mandatory provisions of national and or international laws governing copyrights, and to any other similar provision or regulations, which may complement or replace these acts,
12.4.1. not provide or make the technical specification, packing, sources or Documentation or any portions or aspects thereof (including any methods or concepts) available to any person except to its employees on a “need to know” basis;
12.4.2. not delete any copyright or other marking from the product/packing design or Documentation;
12.4.3. not make any copies of the product/packing design or Documentation or parts thereof, except for archival backup purposes;
12.4.4. not use the design of the products/packing or Documentation for any other purpose than permitted in this article or the Contract.
12.5. The obligations of Customer under this Article 12 shall survive the termination or expiration of the Contract for any reason.
12.6. In the event the design of the product or the packaging in functions thereof licensed under the Contract are delivered in an inseparable package also containing other certificates or test reports, Customer may not in any way use them except to show his customers for marketing and sale purposes.
12.7. In the event the Documentation originates from a third party not being a part of the IIBV, the license conditions of such third party shall prevail in variance of the above conditions of this Article.
13. GENERAL LIMITATION OF LIABILITY
13.1. Except as expressly provided in this Article 16 or elsewhere in the Contract IIBV shall in any event not be liable to the other Party under the Contract for loss of production, loss of use, loss of business, loss of data or revenue or for any special, indirect, incidental or consequential damages, whether or not the possibility of such damages could have been reasonably foreseen.
13.2. In all events, the liability and warranty and the consequential damages, including as the case may be penalties for late delivery, resulting from the shortcoming of the Products and Services and its follow-up may not exceed 5% of the value before VAT of Product and Services as expressed on the related Invoice.
13.3. No action, regardless of form, arising out of any alleged breach or obligations of the Contract may be brought by either Party later than thirty (30) days after the cause of action has occurred.
13.4. A Party suffering loss or damages shall take reasonable measures to limit such loss or damage.
14. MODIFICATION OF CONTRACT
14.1. No addition or modification of the Contract shall be effective or binding on IIBV unless agreed in writing and executed by a duly authorized representative of IIBV.
15. SUBCONTRACTING
15.1. IIBV reserves the right to subcontract such portions of its undertakings under the Contract to subcontractors. IIBV shall be responsible to Customer for the performance by any such subcontractors as if performed by IIBV, unless Customer has requested IIBV to involve the subcontractor in question.
16. FORCE MAJEURE (RELIEFS)
19.1. Either Party shall be excused from the performance of any of its obligations under the Contract and such obligations shall be extended by a period reasonable under the circumstances if the performance thereof is prevented or delayed by industrial disputes or any cause beyond the affected Party’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, riots, wars, accidents, embargo or requisition (acts of government), including non-availability of raw material for the Products or any part thereof or visa and permits for IIBV’s personnel, or delays in the performance of its subcontractors caused by any such circumstances as referred to in this Article 19.
16.2. The right of relief shall apply irrespective of whether the cause of prevention or delay occurs before or after the agreed due time for such obligations.
16.3. In case of force majeure, the affected Party shall promptly notify the other Party in writing and furnish all relevant information thereto.
16.4. Should a cause of force majeure continue for more than three (3) months, either Party shall then have the right to terminate the Contract.
17. CONFIDENTIALITY
17.1. For the purpose of this Article, Confidential Information is defined as information specifically designated as confidential at the time of disclosure or by nature obviously confidential or proprietary, such as trade secrets and designs.
17.2. Except as provided below in this Article 17, the receiving Party of confidential information agrees to treat the same as strictly confidential and shall not divulge, directly or indirectly, to any other person, firm, corporation, association or entity, for any purpose whatsoever, confidential information so received, and shall not make use of or copy such confidential information, except for the purpose of the Contract. Such confidential information may be disclosed only to such of the employees, consultants and subcontractors of the receiving Party who reasonably require access to such information for the purpose for which it was disclosed and who have secrecy obligations to the receiving Party. This commitment shall impose no obligation upon either Party with respect to any portion of such information that:
17.2.1. was known to the receiving Party prior to its receipt from the other Party;
17.2.2. is known or which (through no act of failure on the part of the receiving Party) becomes generally known;
17.2.3. is supplied to receiving Party by a third party which the receiving Party in good faith believes is free to make such disclosure and without restriction on disclosure;
17.2.4. is disclosed by the disclosing Party to a third party generally, without restriction on disclosure;
17.2.5. is independently developed by the receiving Party without use of any confidential information provided by the disclosing Party.
17.3. Customer and IIBV agree that each other’s trade secrets are proprietary and confidential. Customer agrees that the contents of the Quotation and the Contract are confidential.
17.4. Unless otherwise agreed, IIBV shall have the right to use Customer as a reference.
17.5. The obligation of confidentiality set out in this Article 20 shall survive the termination or expiration of the Contract for a period of five (5) years.
18. EXPORT REGULATIONS
18.1. Customer is informed that sale and delivery of the Products in an export situation may be subject to export regulations, e.g. of the resident country of IIBV Product Centre, the European Union and/or of the United States of America. Customer shall hold IIBV harmless of any and all claims, which relate to infringement by Customer of such regulations.
19. TERMINATION
19.1. Either Party may terminate the Contract by notice in writing to the other Party on the occurrence of any of the following events:
19.1.1. if the other Party shall commit a material breach of the Contract and after receipt of a written notice specifying the breach or default shall fail to remedy the breach within a specified period of time set forth in the said notice, which period of time shall be reasonable taking into account all relevant circumstances;
19.1.2. if bankruptcy or insolvency proceedings are instituted against the other Party and such proceedings are not dismissed within thirty (30) days from the date of proceedings, or the other Party makes an assignment for the benefit of its creditors;
19.1.3. due to a force majeure event, in accordance with the provisions of Article 19, Force Majeure.
19.2. A termination of the Contract by the Customer for any reason, after the Contract Effective Date, not related to the non-fulfillment of the obligations by IIBV, will only be accepted by IIBV in case all the reasonable costs, which IIBV has made for this Contract, will be settled. In this case IIBV will be entitled to keep the amounts of Invoices already paid by the Customer and will be further reimbursed up to the level of its costs.
19.3. Provisions contained in the Contract or these General Sales Conditions that are expressed or by nature are intended to survive the expiration or termination of the Contract shall survive such expiration or termination.
20. ENTIRE CONTRACT
20.1. The Contract sets forth and shall constitute the entire agreement between Customer and IIBV with respect to the subject matter thereof, and shall supersede any and all prior agreements, understandings, promises and representations made by one Party to the other concerning the subject matter of the Contract.
21. ASSIGNMENT
21.1. Neither Party shall have the right to assign the Contract or any right herein without the prior written consent of the other Party. However, IIBV shall have the right to assign the Contract to other IIBV Group companies.
22. GOVERNING LAW
22.1. The Contract and all other rights and obligations between Customer and IIBV shall be governed by the national law of the performance responsible IIBV Head Office (see below).
22.2. The Contract, including these General Sales Conditions, is binding except in case of overruling compelling legislation.
22.3. If any clause of the agreement and T&C is or will become invalid, such clause shall not affect the validity of the remaining clauses. The invalid clause shall be replaced by a valid clause, which shall meet as closely as possible the legal and commercial purpose of the original one.
22.4. All disputes, differences or questions between the Parties with respect to any matter arising out of or relating to the Contract or other rights and obligations between Customer and IIBV which cannot be settled in an amicable manner, shall be settled by the competent court in the country of residence of the IIBV Head Office as mentioned below.
IIBV Head Office – 6015 RA Neeritter
Applicable Law of the Netherlands
At the Applicable Court in Eindhoven
