1. APPLICABILITY

1.1 These general terms and conditions of sale and delivery apply to all legal relationships between Artiteq BV, referred to hereinafter as ‘Artiteq’, and the other party, referred to hereinafter as the ‘Purchaser’.

1.2 The applicability of any other general terms and conditions, which the Purchaser may use or otherwise refer to in any way, are hereby expressly rejected.

1.3 Any deviations from these terms and conditions must be expressly agreed upon in writing.

No rights may be derived from such deviations with respect to legal relationships that are entered into subsequently.

 

2. FORMATION OF AGREEMENTS

2.1 All offers, quotations, etc. are without obligation.

2.2 All purchase/sale agreements are entered into by Artiteq under the condition precedent that subsequent inquiries prove that the Purchaser is adequately creditworthy and in keeping with Artiteq’s distribution policy.

2.3 An agreement between Artiteq and the Purchaser will only come into effect after Artiteq issues a written order confirmation or executes the order.

2.4 If Artiteq is unable to execute the order immediately or within the agreed period, it must notify the Purchaser as quickly as possible, stating the period in which it expects to be able to execute the order.

 

3. PRICES

3.1 Artiteq makes its quotations on the basis of the prices, rates, conditions, levies, etc. that apply when the offer is made. If changes take place with regard to the factors that influence the cost price, such as the costs of raw and other materials, labour costs, government measures, insurance premiums, freightage, exchange rates, taxes, fees and levies, etc. after the formation of an agreement between Artiteq and the Purchaser, but before delivery takes place, the price as accordingly adjusted by Artiteq will apply, unless agreed otherwise in writing. Artiteq shall inform the Purchaser of any price increase as quickly as possible.

 

4. DELIVERY

4.1 Unless otherwise agreed in writing, delivery will take place ex warehouse of Artiteq.

Delivery also means having the entire consignment ready for delivery in the relevant warehouse of Artiteq, in those cases in which the Purchaser does not enable Artiteq to deliver to him.

4.2 The quantities of the delivered goods will be deemed to be correct on the waybill, consignment note or similar document provided upon delivery of the goods, unless the Purchaser makes a verbal objection to the quantities upon receipt of the goods to either Artiteq or the carrier and then confirms this in writing on the same day to Artiteq. If Artiteq attends to the transport from the warehouse, this will take place at the expense and risk (including the risk of breakages, loss and damage) of the Purchaser, even if Artiteq has arranged transport insurance. The Purchaser will be liable for any clearance costs at the border. The Purchaser must enable Artiteq to deliver the ordered goods to him on the delivery date or must collect the goods within two days after they are made available for collection. If the Purchaser fails to comply with this obligation, the risk will pass in each case to the Purchaser and Artiteq will be entitled to store (or have these goods stored) at the Purchaser’s expense and risk at its warehouse or elsewhere. The Purchaser must reimburse Artiteq for the storage costs. The Purchaser will then nevertheless be liable for the purchase price of these goods as from the time they are made available to him. The goods will be deemed in this case to comply with the conditions agreed upon regarding quantities at the time these become available. Artiteq will be entitled to suspend the delivery of the ordered goods, for as long as the Purchaser does not comply with his obligations from the underlying or preceding agreements or, if in Artiteq’s opinion, there is a threat of attributable breach by the Purchaser. Artiteq will be entitled at all times to request security from the Purchaser for the performance of his obligations towards Artiteq. If the delivery of an order takes place partially, every partial delivery will be regarded as a separate transaction.

4.3 Unless the parties agree otherwise in writing, the delivery times provided by Artiteq will be based on the working conditions that applied when the agreement was concluded and on the punctual delivery of products, or product components, to Artiteq. If a delay arises as a result of a change in working conditions, or because products are not delivered by Artiteq on time, the delivery period will be extended by such delay if all circumstances taken into account were reasonable. Artiteq will not be in breach by operation of law for merely exceeding this period. A notice of default will always be required for this purpose.

 

5. RESERVATION OF TITLE AND PLEDGE

5.1 All goods delivered and to be delivered by Artiteq to the Purchaser will remain the property of Artiteq, until the Purchaser complies in full with all his payment obligations under any agreement entered into with Artiteq.

5.2 The Purchaser must immediately inform Artiteq when:

a. third parties enforce rights to the items referred to in 5.1;

b. he intends filing an application for a moratorium on the payment of his debts or has obtained such an order;

c. he intends filing a petition for his own bankruptcy, has been informed that one or more of his creditors intend to petition for his bankruptcy, or has been declared bankrupt.

5.3 If Artiteq relies on the reservation of title referred to in 5.1, it will be entitled to repossess the products it has delivered without recourse to the courts.

5.4 The Purchaser hereby undertakes at Artiteq’s first request, to pledge to Artiteq, which will in turn accept such pledge, all goods to which he becomes the owner or co-owner by way of specification, accession or confusion with the products delivered or to be delivered by Artiteq, as security for all claims that Artiteq has or may have against him at any time.

 

6. GUARANTEE

6.1 Artiteq shall provide a guarantee to the Purchaser and first user that covers defects insofar as these can be attributed to the seller, as from the date of invoicing to the Purchaser.

6.2. Artiteq will not be liable for any damage. Artiteq will, in particular, not be liable for damage to the Purchaser and/or third parties, including consequential damage, trading losses or personal injury, which is directly or indirectly the consequence of goods and packaging materials delivered by Artiteq to the Purchaser, in connection, for instance, with the existence, application, use and/or introduction onto the market of those goods and packaging materials, whether in accordance with Artiteq’s advice or otherwise. Artiteq will not admit any liability for damage to the Purchaser and/or third parties that is caused by and/or attributable to it in any other way, other than damage caused as a result of its intent or gross negligence and notwithstanding statutory liability for defective products (product liability). Artiteq will also not admit any liability for damage as a result of the conduct of its employees or agents that it engages, other than damage caused by their respective intent or gross negligence. The total liability of Artiteq will be limited at any rate to the purchase price of the goods concerned or – if this amount is higher – the amount that it can recover from its suppliers or insurers itself. In the event of damage to or defects in the delivery for which Artiteq bears the expense and/or risk, the Purchaser must lend all the cooperation that Artiteq needs to be able to recover such damage from its insurer, suppliers, carrier or any other third party whose goods/services Artiteq has used. If the Purchaser has insured or otherwise assigned to third parties any risk associated with the order or instruction, he must indemnify Artiteq against liability from this risk, failing which Artiteq’s liability will lapse.

 

7. COMPLAINTS

7.1 The Purchaser must notify Artiteq in writing of complaints with regard to supplied goods or services within eight days of discovering or reasonably being able to discover the reason for the complaint. If the Purchaser does not file a complaint within the stipulated period, all his rights and claims will lapse.

7.2 If a complaint is found to be valid, Artiteq shall at its discretion repair, replace or reimburse the Purchaser for the products, or product components, to which the complaint relates free of charge.

7.3 The Purchaser must submit complaints about invoices to Artiteq in writing within eight days of receipt of the invoice.

7.4 The Purchaser will not be entitled to suspend its payment obligations on account of complaints, as referred to in 7.1.

  

8. PAYMENT

8.1 Payment must be made into a bank account designated by Artiteq within 30 days of the invoice date, in the currency of the invoice.

8.2 Payment of each delivery must be made by the Purchaser without any discounts or reliance on set-off. If the delivery period for any order is exceeded, the Purchaser must make full and punctual payment even if he submits a complaint.

8.3 The Purchaser shall be liable for all costs relating to payment, whether judicial or extrajudicial.

8.4 If the Purchaser does not pay on time, he will be in breach without any notice of default and shall be liable to pay interest at the statutory rate from when the breach commences.

8.5 The Purchaser shall be liable for extrajudicial collection costs, as soon as he breaches his obligations, if and insofar as Artiteq hands over the collection of its claim against the Purchaser to a third party.

8.6 The extrajudicial costs will be determined on the amounts calculated on the basis of the collection rates of the Dutch Bar Association.

8.7 Payments by the Purchaser will firstly be applied to settle the outstanding statutory interest, judicial and extrajudicial costs and will then be deducted against the oldest outstanding claim.

 

9. FORCE MAJEURE

9.1 Artiteq will not be liable for damage that the Purchaser suffers as the result of Artiteq’s breach, if the breach cannot be attributed to Artiteq. A breach cannot be attributed to Artiteq if the breach is not due to its fault, or if it is not accountable for such breach by law, a legal act or according to generally accepted standards.

9.2 In the event of force majeure, Artiteq will be entitled to terminate the agreement without recourse to the courts, or to suspend the obligations arising from the agreement, for as long as this force majeure situation continues.

 

10. TERMINATION

10.1 If the Purchaser in any way breaches any of his obligations towards Artiteq, and then still fails to remedy that breach within a period stipulated in a written notice of default, or in the event of an application for a moratorium on the payment of debts, the moratorium order itself, a bankruptcy petition, winding-up petition or claim, bankruptcy or liquidation or discontinuation of the Purchaser’s business, or part thereof, Artiteq will be entitled, notwithstanding its other rights and without any obligation to pay compensation, to completely or partially terminate the agreement(s) with immediate effect or to suspend the performance or further performance of the agreement(s).

10.2 If Artiteq terminates the agreement(s), everything that the Purchaser owes to Artiteq, for any reason, will become immediately due and payable, notwithstanding Artiteq’s other rights, and Artiteq will be entitled to immediately suspend the further execution of any order.

 

11. APPLICABLE LAW

11.1 Dutch law applies to all agreements between Artiteq and the Purchaser, to the exclusion of the 1980 Vienna Sales Convention (CISG).

11.2 The competent court in Breda has sole jurisdiction over all disputes that may arise as a result of the performance of any agreement between Artiteq and the Purchaser, as well as all disputes regarding these terms and conditions.