GENERAL TERMS AND CONDITIONS OF SALE
DENSO (EUROPE) B.V.
1382 JL Weesp
Filed with the Office of the Clerk of the Court attached to Chamber of Commerce in Hilversum, no. 1760, on June 1st 1994.
1 Applicability of the Terms and Conditions
1.1 These General Terms and Conditions of Sale shall apply to all offers made by DENSO EUROPE B.V., hereafter referred to as DENSO, as well as to all contracts concluded by DENSO with another party.
1.2 Any departure from these general terms and conditions shall require the parties’ express written agreement.
1.3 Another party’s terms and conditions shall not be binding upon DENSO except where they have been expressly accepted by DENSO in writing.
2.1 Any offer made by DENSO shall be made free of any obligation and shall not bind DENSO until the other party’s acceptance of the offer has been confirmed by DENSO in writing. Confirmation as referred to in this Article 2.1 may take six working weeks.
2.2 If the other party places an order without any prior offer from DENSO, the order shall be open to confirmation by DENSO for six working weeks in order to enable DENSO to decide whether it can carry out the order. Confirmation by DENSO within six working weeks of the order being placed shall result in an agreement.
2.3 Prices quoted in DENSO’s offers shall be exclusive of V.A.T. and import duties.
2.4 DENSO may increase prices if such is required by any changes in the law, increased cost price factors or any changes in exchange rates occurring after the conclusion of the agreement.
2.5 Oral commitments shall not be binding unless and until they are confirmed by DENSO in writing.
3.1 Subject to any agreement to the contrary, delivery shall be ex warehouse Weesp, the Netherlands (1990 Incoterms), and shall be exclusive of import duties.
3.2 The other party shall be under a duty to take delivery of the purchased goods either at the moment they are delivered to the other party or at the time they are made available to it in accordance with the agreement.
3.3 If the other party refuses to take delivery or fails to issue information or instructions necessary for delivery, the goods shall be stored at the other party’s risk. In that case, the other party shall be liable to pay all additional costs, in any case including storage costs.
4 Delivery time
4.1 Subject to any express agreement to the contrary, agreed upon delivery dates shall not be time of the essence. Thus, the other party shall need to send DENSO written notice of default in case of late delivery, allowing DENSO a reasonable period of at least 45 days to perform its obligations.
4.2 Any delay in delivery shall not entitle the other party to claim damages.
5 Partial delivery
5.1 DENSO shall be permitted to deliver orders in parts unless the partial delivery has no independent value.
If the order is delivered in parts, DENSO shall be allowed to send separate invoices for each partial delivery.
6.1 Subject to any agreement to the contrary, and insofar as applicable, prices quoted shall include the usual and customarily-used packaging of the goods. Prices shall not include deposits on returnable packaging. Packaging shall not be taken back, except for returnable packaging, or if DENSO is under a statutory duty to take back packaging.
6.2 Returnable packaging must be returned in good repair, with due observance of DENSO’s instructions and within the time period stated. If returnable packaging is not returned within this time period and/or is returned in a poor condition and/or uncleaned, the cost of replacing, repairing and/or cleaning the packaging shall be invoiced.
7 Samples, models and examples
If DENSO shows or issues a model, sample, drawing, example, etc., such has been done by way of illustration. The features and properties of the goods delivered may deviate from the sample, model, drawing, example, etc., except where an express statement is made that delivery shall conform to the issued or shown model, sample, drawing, example, etc.
8 Dissolution and suspension
8.1 DENSO shall at least be authorised to suspend (any further) performance of the agreement, or proceed to dissolve the agreement, without prejudice to its right to claim replacement or additional damages, if any of the following events occur:
- an attachment is levied on any of the other party’s property, or the other party is granted a moratorium or is declared bankrupt;
- the other party fails to perform any of its obligations vis-à-vis DENSO; or
- DENSO has good grounds to fear that the other party is or will be unable to perform its obligations under the agreement and, in DENSO’s reasonable opinion, fails to provide adequate security for the performance of its obligations.
8.2 If any of the events occurs as described in Article 8.1, DENSO shall be authorised to determine that all sums owing from the other party shall be immediately due and payable.
8.3 If any unforeseen circumstances occur, for example in relation to persons and/or materials (customarily) used by DENSO in performing the agreement, which effectively render such performance impossible or are so onerous and/or disproportionately costly that DENSO cannot reasonably be expected to perform the agreement, DENSO shall be authorised to dissolve the agreement, without having to pay any damages.
8.4 The other party shall not be permitted to assign its rights under the agreement to any third party without DENSO’s prior written consent.
9 RETENTION OF TITLE
9.1 DENSO SHALL RETAIN TITLE TO ALL GOODS DELIVERED OR TO BE DELIVERED TO THE OTHER PARTY UNTIL THE PURCHASE PRICE OF ALL SUCH GOODS HAS BEEN PAID IN FULL. IF, WITHIN THE FRAMEWORK OF THE SALES AGREEMENTS, DENSO ALSO CARRIES OUT WORK FOR THE OTHER PARTY, DENSO’S RETENTION OF TITLE SHALL CONTINUE TO APPLY UNTIL THE OTHER PARTY HAS FULLY SATISFIED ITS OBLIGATIONS IN THIS RESPECT. LIKEWISE, DENSO’S RETENTION OF TITLE SHALL APPLY TO ANY CLAIMS WHICH DENSO MAY HAVE AGAINST THE OTHER PARTY AS A RESULT OF THE OTHER PARTY’S FAILURE TO PROPERLY PERFORM ANY OF THE ABOVE-MENTIONED AGREEMENTS.
9.2 So long as title of the delivered goods has not passed to the other party, the other party may not pledge the goods or grant a third party any other right in the goods. However, the other party shall be permitted to sell and deliver the goods title which has been retained to a third party within the context of its normal business operations. If the goods are sold on credit, the other party shall be obliged to impose upon its customers a retention of title clause conform to the one contained in this Article.
9.3 The other party shall have an obligation to take due care of the goods delivered subject to retention of title, and preserve them as identifiable property of DENSO. The other party shall also be obliged to insure the goods against fire and water damage and theft, and submit the insurance policies for inspection to DENSO at the latter’s first request. Any claims which the other party may have under these insurance policies shall be pledged to DENSO at the latter’s first request as security for DENSO’s claims against the other party.
9.4 If the other party fails to properly perform its payment obligations to DENSO, or if DENSO has good grounds to fear that the other party shall fail to satisfy those obligations, DENSO shall be authorised to take back the goods which were delivered subject to retention of title.
If the goods delivered by DENSO are already fitted into property belonging to the other party, the other party shall detach the sold goods at DENSO’s first request and make them available to DENSO, without prejudice to DENSO’s right to detach such goods itself.
The other party shall fully co-operate if DENSO wishes to take back the goods, under forfeiture of a fine of 15% of the sum due per day, subject to a minimum of EUR 250 (exclusive of V.A.T.).
10 Intellectual and industrial property rights
10.1 The other party shall refrain from infringing any copyrights, designs, marks or other intellectual property rights in the sold goods.
10.2 Infringement of any of these rights shall render the other party liable to pay a fine of EUR 4,500 for each violation, on the understanding that every infringing product shall be considered one violation. This fine shall not preclude DENSO from asserting its other rights, including its right to claim damages if the damage and/or losses caused by the infringement exceed the amount of the fine, or its right to demand that the infringement be ceased.
11 Defects; filing of complaints
11.1 Upon – or as soon as possible after – delivery of the goods, the other party shall be obliged to inspect them, or cause them to be inspected. The other party shall have to check whether the delivered goods are in conformity with the agreement, i.e.:
- whether the correct goods have been delivered;
- whether the number of goods delivered corresponds with the agreed upon quantity;
- whether the goods delivered meet the agreed upon quality standard or – if no such standard is agreed – whether they meet the requirements which may be set for normal use and/or trading purposes.
11.2 If any visible defects or shortcomings are found, the other party must notify DENSO in writing within eight (8) workdays of the delivery.
11.3 Latent defects must be notified by the other party in writing within three (3) workdays of their discovery, but in any case within 365 days of their delivery.
11.4 The timely filing of a complaint shall not release the other party from its obligations to pay and take delivery of the orders placed.
11.5 Goods may not be returned without DENSO’s prior written consent.
12.1 Subject to any agreement to the contrary, payment must be made within 30 days of the invoice date, by transferring the sum due to the ABN / AMRO bank account number 545015251 in the name of DENSO EUROPE B.V. established at Hogeweyselaan 165, 1382 JL in Weesp.
Once 30 days have elapsed since the invoice date, the other party shall be in default and liable to pay interest on the sum due at the statutory rate plus 2%. At the end of each year, the interest so accrued shall be added to the due sum.
12.2 If the other party is liquidated, declared bankrupt or granted a moratorium, its obligations shall become due and payable.
12.3 Payment must be made without applying any discount or setoff, except where DENSO has issued a credit note.
12.4 Payments by the other party shall be deemed to satisfy all due interest and costs and, subsequently, the longest outstanding invoices, even if the other party states that the payment should apply to a later invoice.
13 Collection costs
13.1 If the other party is in default or otherwise fails to perform any of its obligations, all costs reasonably incurred to collect the sums due out of court shall be reimbursed by the other party. The other party shall in any case be liable to pay:
15% on the first EUR 3,000,
10% on any sum over EUR 3,000 and under EUR 6,000,
8% on any sum over EUR 6,000 and under EUR 15,000,
5% on any sum over EUR 15,000 and under EUR 59,000,
3% on any sum over EUR 59,000.
If DENSO proves that it has incurred higher costs, which must have been reasonably necessary, these costs shall also be suitable for reimbursement.
14 Legal costs
The other party shall be under a duty to reimburse DENSO for all costs reasonably incurred in connection with legal proceedings where judgment is fully or substantially awarded against the other party. These costs shall in any case include the fees of outside experts, bailiffs and lawyers, even if these costs exceed the amount awarded by the court.
15.1 DENSO shall not accept liability for any damage and/or losses caused by its failure to properly perform its obligations, or ensuing from any wrongful act.
15.2 If any good delivered by DENSO is not in conformity with the agreement, and the other party has timely filed a complaint in accordance with Article 10 of these general terms and conditions, the other party shall be entitled to replacement or repair of the good, except where DENSO cannot be held liable for the improper performance (force majeure).
DENSO may instead of repairing or replacing the goods, refund the purchase price paid.
15.3 Liability for any consequential damages, including loss of profit and damage and/or losses caused by any delay and/or delayed delivery, shall be expressly excluded.
15.4 Limitation of DENSO’s liability set out in the previous paragraphs shall not apply if the damage and/or loss is the result of any intentional act or omission or gross negligence on DENSO’s part or on the part of any of its executive employees.
15.5 DENSO shall not accept any liability for improper performance which cannot be attributed to the company (force majeure).
15.6 Entitlement to damages and/or repair of the goods and/or replacement of the goods and/or supply of missing components shall lapse if (a) no timely complaint is made, or (b) 1 year after the delivery, except where a deviating time period is agreed in writing, e.g. under a warranty agreement.
16 Force majeure
16.1 Force majeure shall mean any circumstance preventing performance of the agreement which cannot be attributed to DENSO.
Force majeure shall (insofar as these circumstances render performance impossible or unreasonably difficult) in any case include:
- strikes at companies other than DENSO, outlaw strikes or political strikes at DENSO’s business;
- a general shortage of necessary raw materials or any other goods or services needed to perform the agreed upon obligations;
- unforeseeable stagnation of the business of any supplier or other third party on whom DENSO is dependent, and general transport problems.
16.2 DENSO shall also have the right to invoke force majeure if the circumstance preventing (further) performance arises after DENSO should have performed its obligations.
16.3 During the occurrence of force majeure, DENSO’s delivery and other obligations shall be suspended. If the period during which DENSO is prevented from performing its obligations because of force majeure continues for more than three months, either party shall have the right to dissolve the agreement, without being required to pay any damages.
16.4 If, when the situation of force majeure arises, DENSO has already satisfied part of its obligations, or is able to satisfy only part of its obligations, DENSO shall be entitled to separately invoice the goods which it has delivered or which are capable of being delivered. The other party shall be obliged to pay this invoice as if it concerned a separate contract, except where the goods so delivered or capable of being delivered have no independent value.
17 Settlement of disputes
17.1 Any disputes arising between DENSO and the other party shall be submitted to the District Court of Amsterdam.
17.2 Notwithstanding Article 17.1, DENSO shall have the right to summon the other party to appear before any other court of law which is conferred competent authority by law or under the applicable international treaty.
18 Governing law
Any agreement entered into between DENSO and any other party shall be governed by the laws of the Netherlands, to the express exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).