GENERAL TERMS AND CONDITIONS MAX EUROPE B.V.
Definitions: Unless explicitly stated otherwise, the following capitalised definitions shall have the meanings in the Agreement as set out hereunder:
Agreement: any agreement or order, entered into between the Supplier and the Dealer, including pursuant to a dealership agreement between the Supplier and the Dealer and any other sales contract or legal relationship entered into between the Supplier and the Dealer with regard to Products;
Article: an article of the General Terms and Conditions; Dealer: a Company who resells or distributes the Products to other dealers or the end user;
General Terms and Conditions: the general terms and conditions of the Supplier, applicable to the Agreement; Intellectual Property Rights: has the meaning as indicated in Article 9 of this General Terms and Conditions;
Products: the products to be delivered by Supplier to the Dealer under an Agreement;
Spare Parts: any items or parts needed to replace defective items or parts;
Supplier: Max Europe B.V.;
Warranty Period: the warranty period of one (1) year, commencing at the date of the sale of the Products by the Dealer to an end user, with a maximum duration of 18 months from delivery of the Products by the Supplier to the Dealer, as set out in the Warranty Instructions; Warranty Instructions: the warranty instructions of the Supplier with regard to the Products [Annex C].
Article 1 - General, Applicability
Sales of Products to the Dealer shall be governed exclusively by the terms and conditions of these General Terms and Conditions, unless explicitly agreed otherwise in the Agreement or other written instrument. All general terms and conditions which the Dealer wishes to apply to the purchase of Products from the Supplier are hereby explicitly rejected and shall not apply to the Agreement or to any individual sales contracts for Products concluded between the Supplier and the Dealer as a result of the Agreement.
The General Terms and Conditions are applicable to all legal relationships entered into between the Supplier as supplier and the dealer. The General Terms and Conditions and the Agreement supersede all prior written and oral agreements and arrangements between the Parties hereto with respect to the subject matter dealt with herein.
In the event of a conflict between any provisions of an Agreement and any provisions of the General Terms and Conditions, the provisions of the Agreement shall prevail.
If any provision of the General Terms and Conditions or the Agreement is held to be illegal, void or unenforceable by a court or arbitral tribunal of competent jurisdiction, such provision shall have no effect upon and shall not impair the enforceability of any other provision of the General Terms and Conditions or the Agreement. The Parties shall replace the invalid or non-binding part by provisions which are valid and binding and the legal effect of which, given the contents and purpose of the General Terms and Conditions and the Agreement, is, to the extent possible, similar to that of the invalid or non-binding part.
The Supplier may amend, supplement or change the General Terms and Conditions at all times. Amendments to the General Terms and Conditions shall be effective three (3) months after the announcement of such amendments by the Supplier to the Dealer. If the Dealer does not agree with the amendment, supplement or change, the Dealer may, until the effective date of the amendment, supplement or change, terminate the Agreement in writing with effect from the date that the amendment, supplement or change shall have become effective.
Article 2 - Formation of an Agreement
All offers of the Supplier are free of engagement and subject to the Supplier’s confirmation.
An Agreement between the Supplier and the Dealer shall come into effect upon the acceptance by the Supplier of an order for Products made by the Dealer pursuant to Article 3.1.
Article 3 - Conditions of Supply
All orders for Products shall be made by the Dealer in writing. Orders shall be deemed accepted if the Supplier has sent an order confirmation in writing to the Dealer. All confirmed orders are final. Final orders can only be cancelled or changed by the Dealer upon payment by the Dealer of any costs the Supplier has incurred regarding the processing of the cancelled or changed order.
The Dealer is responsible for the accuracy of every order for Products placed and for ensuring that the Supplier has sufficient information in order to fulfil the order.
The Supplier shall in principle supply to the Dealer the Products agreed upon pursuant to an accepted order, subject to their availability, and provided payment of the Products is adequately warranted. The Supplier shall make its best efforts to fulfil the orders it has accepted.
The Products shall be delivered FCA Nippon Express/Vabix, Rotterdam as this term is defined in the Incoterms 2020, unless agreed otherwise between the Supplier and the Dealer.
The risk of loss, theft or damage shall pass from the Supplier to the Dealer upon delivery pursuant to article 3.4.
The Supplier warrants to the Dealer that the Products shall be free from defects in materials and workmanship for the period of the Warranty Period, provided that the Products are handled with utmost care, proper maintenance procedures are followed and instructions in any relevant documentation are strictly adhered to. The limited warranty as described in this Article 3.6 shall be subject to the terms and conditions of the Warranty Instructions.
In the event of a defect within the terms of the Warranty Instructions, the Supplier’s obligations shall be limited to supply needed spare parts free of charge. The Dealer shall not be entitled – except as provided under mandatory provisions of Dutch law – to any remedy or damage arising from the non- conformity, failure or malfunctioning of the Products, except as provided in this Article 3.7. The Dealer is obliged to follow the Supplier’s written instructions with respect to the storage and/or return of the Products to be replaced.
The Dealer is obliged to inspect each Product within twenty (20) days after delivery of the Products.
The Supplier shall have no liability for a breach of the above warranty unless:
The Dealer gives written notice of the defect to the Supplier within seven (7) days from the time when the Dealer discovers or ought to have discovered the defect; and
The Supplier is given a reasonable opportunity after receiving the notice of examining such Products and the Dealer returns such Products to the Supplier’s place of business at the Dealers sole cost and expense for the examination to take place there.
Article 4 - Invoicing and payment
The purchase prices for the Products payable by the Dealer shall be those set forth in the Supplier’s price list in force at the time the order is delivered pursuant to article 3.4. Unless otherwise agreed, such prices are subject to change at any time, subject to three months’ notice. For completeness’ sake, after notification of a price change has been sent, the old prices will remain valid only for orders that are delivered (pursuant to article 3.4) during the three months’ notice period. The new prices are valid for orders that are delivered after the three months’ notice period. Supplier may refuse orders that are primarily made to avoid the price change. Purchase prices are FCA Nippon Express/Vabix, Rotterdam and are exclusive of any tax, registration fee or any other charge.
The Supplier shall issue an invoice for each order, which invoice shall be paid by the Dealer according the agreed payment terms.
Unless otherwise agreed, payment shall be made by bank transfer and shall be made without set-off or counterclaim and without any restriction or condition. The Supplier is entitled to demand that the Dealer provides security for the performance of its obligations towards the Supplier.
Title to the Products shall not pass from the Supplier to the Dealer until the Supplier has received from the Dealer payment for the Products in full.
If the Dealer fails to pay any invoice within the term as indicated in Article 4.2, the Supplier shall, without prejudice to its other rights and remedies, have the right to declare the entire claim to be due and payable. For payment after the agreed period default interest will be charged to the extent of eight (8) percentage points over and above the current Rabo Bank base rate. For this the base rate valid on the last calendar day of a half year is decisive for the next half year. The Supplier reserves the right to lodge further compensation claims and to claim additional costs of five (5) Euro for each letter of reminder sent.
Article 5 - Resale
The Dealer is free to fix the resale prices of the Products, the only exception being the maximum prices that the Supplier may impose. The Supplier may, however, set recommended minimum dealer and end user-prices.
Article 6 - End user warranty and after-sales service
The Dealer shall give a warranty to its Dealers on the Products. At a minimum, this warranty shall contain the contents of the Supplier’s Warranty Instructions and the warranty period given by the Dealer shall end when the Warranty Period shall end, provided that the Products are used appropriately by the Dealers and proper maintenance procedures are followed.
The Dealer shall inform the Supplier promptly of any and all complaints it has received from Dealers in respect of the Products, provided that the complaints concern a defect in the Products that falls within the scope of the warranty given by the Supplier to the Dealer under Article 3.6.
Any other complaints shall be handled by the Dealer and the Dealer shall inform the Supplier on a monthly basis and whenever the Supplier so requests of the complaints as referred to in this Article 6.3.
The Dealer shall provide to the end users, at its expense and with its own personnel and technical means, suitable after-sales services, which shall extent to all the Products in respect of which such assistance may be required.
Any warranty and after-sales services to be provided by the Dealer in respect of the Products shall be provided promptly, adequately and in accordance with the standards designated by the Supplier.
During the Warranty Period, the Dealer shall carry out free of charge all repairs and replacements provided for in the Warranty Instructions and shall bear all the expenses of such service. During the Warranty Period, the Supplier shall provide the Dealer free of charge with Spare Parts under the conditions of the Warranty Instructions, upon receipt of a written request from the Dealer and subject to the availability of the Spare Parts.
After the Warranty Period, the Supplier shall provide the Dealer with the Spare Parts against the regular prices as set by the Supplier, subject to the availability of these Spare Parts. The Supplier shall carry Spare Parts for a period of at least five (5) years subsequent to the general discontinuance by the Supplier of the sale and delivery of the specific type of the Products.
The Supplier shall provide the Dealer with the support and, to the extent the Supplier deems this to be necessary, knowledge and training to Dealer’s personnel to enable it to provide the services referred to in Article 6.4.
Article 7 - Liability
Without prejudice to Article 3.6 etcetera, the Supplier shall never be held liable for any consequential damage, amongst others consisting of lost profits, loss suffered and costs incurred, unless the damage/loss is caused by the intent or wilful recklessness of the Supplier.
The Supplier shall not be liable for damage caused by intent or wilful recklessness of its subordinates and/or non-subordinates for which the Supplier is liable according to the law.
Without prejudice to the previous paragraphs of this Article 7, the liability of the Supplier shall always be limited to the amount that its liability insurance covers and pays out in the particular case.
Article 8 - Information
Each party to an Agreement shall keep the other party informed of all matters relevant to the other party insofar as they relate to the Agreement.
The Supplier shall provide the Dealer with all information about the Products and all other information necessary to (further) distribute the Products.
Article 9 - Intellectual Property Rights
The Supplier’s trademarks, trade names, slogans, patents, models, copyright and other intellectual property including but not limited related to the Products, including all accompanying know how and goodwill (the "Intellectual Property Rights"), are and shall remain the property of the Supplier. The Supplier hereby grants the Dealer the right to use the Intellectual Property Rights for the purposes of the Agreement. The Supplier does not grant the Dealer the right to grant sublicenses in this respect.
The Dealer shall not use the Intellectual Property rights other than for the purpose of identifying and advertising the Products within the scope and during the term of the Agreement. The Dealer shall not use the Intellectual Property Rights to identify itself, as its trade name or otherwise beyond the scope of the previous sentence, without the prior explicit written permission of the Supplier. The Dealer shall not, during the term of the Agreement or after termination of the Agreement, use, adopt or register any trademarks, trade names, slogans, patents, models, copyright or other intellectual property which include or are similar to any of the Intellectual Property Rights.
Should the Dealer infringe any of the Supplier’s Intellectual Property Rights (which infringement includes the sale of any products that infringe the Supplier’s Intellectual Property Rights), or should the Supplier have valid reason to believe that the Dealer infringes or may infringe any of Supplier’s Intellectual Property Rights, the Supplier may terminate the Agreement or business relation with the Dealer with immediate effect without prejudice to the Supplier’s other rights and without any notification or any obligation to pay any compensation.
The Dealer shall use its best efforts to discover any infringement of the Intellectual Property Rights and shall immediately report to the Supplier all infringements or possible infringements which come to its attention and the Dealer shall immediately notify the Supplier of any third party claims relating to an alleged infringement of the Intellectual Property Rights.
Article 10 - Integrity of Brand
The Supplier works hard to maintain a trusted brand. It is imperative that the Dealer shows courtesy and respect towards end users while maintaining an honest business in all ways. The Supplier reserves the right at any time to discontinue business with any party that does not maintain the Supplier’s operating standards in any way.
Article 11 - Confidentiality
Each party to an Agreement undertakes not at any time to disclose or use, potentially causing any detrimental effect to the other party, any confidential information concerning the Agreement, or concerning the business and affairs of the other party, except:
(a) to the extent required by the applicable law or stock exchange rules or by any competent authority but in that case only after consulting with the other party about the timing and content of such disclosure.
(b) to its professional advisers subject to a duty of confidentiality and only to the extent necessary for any lawful purpose.
(c) to the extent that at the date hereof or hereafter such information is or shall become public knowledge.
Article 12 - Term and Termination
The Supplier may terminate or dissolve an Agreement with immediate effect by giving written notice to the Dealer if:
(i) the Dealer becomes subject to an insolvency procedure, is declared bankrupt or if the bankruptcy of the Dealer has been applied for, is granted a suspension of payments or if any event analogous to these events occurs with respect to the Dealer under the laws of the jurisdiction in which the Dealer has its principal office;
(ii) as a result of a transfer or other transmission of shares, or voting rights or the subscription of shares, a merger or demerger, at any time after the date of the Agreement, one or more third parties acquire direct or indirect control of the Dealer;
(iii) the Dealer is dissolved, or its business is transferred in whole or in part, liquidated, wound up, discontinued, or relocated abroad, or a decision is taken in this respect.
Article 13 - Dispositions upon Termination
If an Agreement expires or is dissolved or terminated, the Dealer shall return to the Supplier all promotional material and other documents and samples which have been supplied to it by the Supplier and are in the Dealer’s possession.
At the Supplier’s option, the Supplier may buy from the Dealer all Products the Dealer has in stock at the purchase price originally paid by the Dealer. Products not so repurchased by the Supplier may be sold by the Dealer for a period of maximum twelve (12) months from the date of termination of the Agreement, subject always to the provisions of the Agreement, which provisions shall survive the term of the Agreement for that purpose.
Article 14 - Governing Law and Jurisdiction
The General Terms and Conditions and the Agreement shall be governed by and construed in accordance with the laws of the Netherlands. The applicability of the Vienna Convention of 1980 is excluded.
All disputes between the Supplier and the Dealer arising under, or in connection with the General Terms and Conditions, the Agreement or further agreements resulting from the Agreement, shall be submitted to and be settled by the district court of Amsterdam, subject to appeal and cassation (cassatie) in the Netherlands.