GENERAL TERMS AND CONDITIONS

Clause 1
Applicability and General Provisions.
1. These general terms and conditions apply to, and form an integral part of, all (future)
quotations, offers and agreements, however named, of INUTEQ International B.V.
(‘INUTEQ’). These conditions apply in particular to agreements entered into by INUTEQ
to supply goods to its buyers.
2. Where these general terms and conditions refer to ‘buyer’, this means every natural or
legal person in a contractual relationship with INUTEQ pursuant to a purchase or other
agreement entered into with INUTEQ as well as every natural or legal person wishing
to enter into a purchase or other agreement with INUTEQ. The term ‘buyer’ in
particular includes those on whose order and for whose account goods are delivered.
3. The provisions in these general terms and conditions may exclusively and only be
departed from if and insofar as this has been expressly agreed in writing.
4. The applicability of other general terms and conditions is expressly excluded. Even if
the buyer refers to (its) general terms and conditions, the terms and conditions of the
buyer do not apply. This is only different if and insofar as the applicability of the
conditions of the buyer is expressly accepted by INUTEQ in writing and insofar as the
conditions of the buyer are not in conflict with the provisions in the current general
terms and conditions. Any stipulation to the contrary in the conditions of the buyer
does not affect the foregoing.
5. Where these general terms and conditions refer to the ‘delivery (of goods)’, this also
includes the rendering of services and work of whatever nature. Where these general
terms and conditions refer to ‘buyer’, this also includes: ‘client’.
6. If any provision in these general terms and conditions is void, is voided or is declared
not applicable in any other way, the remaining provisions of these general terms
and conditions shall remain in full force and the parties shall agree a replacement for
the void, voided or inapplicable-declared provision whereby the objective and
purport of the void, voided or inapplicable-declared provision(s) shall be taken into
account as far as possible.
7. INUTEQ is entitled to engage third parties in the performance of agreements with the
buyer. The current general terms and conditions also apply in those situations.
Clause 2
Quotations.
1. All quotations of INUTEQ are deemed to be invitations to the potential buyer to
make an offer and are based on any designs, drawings, models, information etc
provided with the application and/or order. They therefore do not bind INUTEQ in
any way, unless the quotation itself expressly and unambiguously determines
otherwise (in writing).
2. The following form part of the quotations by INUTEQ - in particular as regards the
provisions of the previous paragraph: - designs, drawings, models, samples,
descriptions, images, measurements and such like, as well as any annexes and
documents relating to these quotations. All this remains the property of INUTEQ and
must be returned at INUTEQ’s request and may not be copied and/or shown and/or
handed to third parties without INUTEQ’s explicit written permission. INUTEQ also
reserves any existing intellectual and industrial property rights.
3. The buyer guarantees all designs, drawing, models, information and such like
provided to INUTEQ by it or on its behalf. INUTEQ is not obliged to verify their
accuracy. If goods are produced in accordance with the designs provided by or on
behalf of the buyer, the buyer guarantees that by the manufacturing and/or
supplying the goods, no right whatsoever of third parties is infringed. The buyer
indemnifies INUTEQ against all claims by third parties in this respect. If a third party
claims any right and on this basis objects to the production and/or the delivery of
the goods, INUTEQ is entitled to cease the production and/or delivery and claim any
already incurred costs from the client, without prejudice to claim other costs,
compensation or specific performance. INUTEQ is entitled to sell and deliver goods
to third parties if these goods have been produced on the basis of designs,
drawings, models etc created or developed by INUTEQ (wholly or in part),
irrespective whether or not this took place in collaboration with the buyer. Dies,
moulds, auxiliary tools and such like produced by or on instruction of INUTEQ and/or
produced wholly or in part on the basis of its instructions, for which the buyer has
paid the agreed costs, transfer in ownership to the buyer at the time of actual
delivery by INUTEQ, as set out below. These dies, moulds, auxiliary tools and such like
shall only be delivered to the buyer by INUTEQ the moment they are no longer in use
by INUTEQ for the production for the benefit of the buyer and at least 2 years after
delivery of the last order placed with INUTEQ by the buyer produced with these
dies, moulds, auxiliary tools etc have expired and if the buyer has observed all
its obligations towards INUTEQ and the buyer requests INUTEQ in writing for the
delivery of the goods referred to above. If the buyer has not requested delivery of
the dies, moulds and/or auxiliary tools within 3 years from the delivery of the last
order by INUTEQ in writing, INUTEQ’s obligation to deliver lapses and INUTEQ is
entitled to destroy these goods after one month after notification to the buyer,
without then being obliged to pay any compensation in this respect to the buyer. If
INUTEQ is responsible for the production of the dies, moulds, auxiliary tools etc,
INUTEQ is only obliged to proceed to production if and insofar as the buyer has paid
the agreed production and other costs to INUTEQ and has complied with any other
obligations towards INUTEQ. In addition, INUTEQ is only obliged to implement
changes, improvements or repairs to dies, moulds, auxiliary too
ls etc if and insofar as the payable (estimated if required) costs in this respect have
been paid to INUTEQ by the buyer.
If no express price has been agreed for the agreed work, the buyer pays INUTEQ on
its first request a reasonable amount for the incurred costs. INUTEQ is only liable for
loss of or damage to dies, moulds, auxiliary tools etc if the loss or damage is the
result of an intentional act or gross negligence. In such cases, INUTEQ is entitled to
choose between repair or replacement of said goods. INUTEQ is not held to any
further obligation or to payment of compensation. The dies, moulds, tools etc in the
possession of INUTEQ are insured by INUTEQ against damage.
4. If INUTEQ’s quotation, which had been prepared at the request of the buyer, is not
accepted within 2 months of the quotation date, INUTEQ is entitled to charge the
costs for preparing the quotation to the buyer. In that event the buyer must return
the quotation with accompanying designs, drawings, models and such like at the
first request of INUTEQ.
Clause 3
Formation of the Agreement.
1. An agreement is only formed when INUTEQ has accepted an order from the client in
writing (the so-called order confirmation). An agreement is deemed to have been
formed the moment INUTEQ has submitted the order confirmation to the buyer.
2. The buyer is bound to its order, given to INUTEQ in whatever form, during a period of 7
days from the date of the order or, if it concerns an order given orally, after giving the
order. A statement by the buyer that it wishes to cancel or change its order, issued
during this period of 7 days, can therefore not prevent that an agreement on the
basis of the (original) order is formed if INUTEQ as yet accepts/confirms this order
within this period of 7 days.
3. The order confirmation sent by INUTEQ to the buyer is deemed to fully and accurately
reflect the content of the agreement entered. The buyer is deemed to agree with the
content of INUTEQ’s order confirmation, unless it notifies INUTEQ in writing that it
cannot agree with the content within 7 days from the date of this order confirmation.
4. Any additional agreements and/or undertakings made by INUTEQ employees, or
made on behalf of INUTEQ and/or made by other persons acting as representatives,
do not bind INUTEQ unless these agreements and/or undertakings have been
confirmed in writing by INUTEQ’s director(s) authorised to represent it.
Clause 4
Prices.
1. All prices are exclusive of turnover tax and - unless expressly otherwise agreed in
writing - exclusive of packaging and transport costs.
2. The prices set out in the quotations, contracts and order confirmations are based on
the cost factors in force at the time of the formation of the agreement, such as
exchange rates, manufacturing prices, raw materials and consumable prices, wage
and transport costs, insurance premiums, taxes, import duties and other levies
imposed by the government.
3. If after the date on which the agreement has been formed but before the day of
delivery there are increases in one or more cost factors, INUTEQ reserves the right to
charge these increases to the buyer. In such an event INUTEQ is also entitled to
terminate the agreement wholly or in part without any legal intervention being
required. The buyer is also entitled to extrajudicial termination if and insofar as INUTEQ
introduces a cost increase within 6 months of entering into the agreement. If the
buyer exercises this right, it must within 5 days from receipt of the relevant notification
by INUTEQ notify by registered letter to proceed to termination.
Clause 5
Delivery Periods.
1. The delivery periods stated by INUTEQ commence on the day on which the
agreement has been formed or from the moment INUTEQ has all the information
required for the performance of the agreement.
2. The delivery period stated by INUTEQ is never to be viewed as a strict deadline unless
expressly agreed otherwise in the individual agreement. In the event of a late
delivery, INUTEQ must therefore be issued with a written notice of default. If, in
departure from the foregoing, the individual agreement expressly provides for a
penalty for exceeding the period of delivery, this is not payable if exceeding the
delivery time is the result of events of force majeure set out in clause 11 of these
general terms and conditions. INUTEQ is not liable if it is impossible for INUTEQ to
perform its delivery obligations because of force majeure (clause 11) or due to other
events that were not foreseeable at the time of entering into the agreement and for
which INUTEQ cannot be held responsible. If due to these circumstances INUTEQ is
temporarily unable to perform its delivery obligations, the delivery period agreed
between the parties shall be extended with the duration of the period during which
INUTEQ is unable to deliver plus a reasonable start-up period. If and insofar as the
aforementioned events mean that INUTEQ is completely unable to deliver, the buyer
is entitled to terminate the agreement entered into between the parties.
3. The Incoterms provisions or the most recent version of Incoterms at the time of
entering into the agreement apply to the delivery and transfer of the risk. INUTEQ has
complied with its delivery obligations the moment the goods ordered by the buyer
have left INUTEQ’s factory or when INUTEQ has notified the buyer that the goods
ordered by the buyer are ready for dispatch.
4. If in departure from the provisions it is agreed that the transport of the goods is carried
out by INUTEQ, the goods are sent by and in a manner most beneficial to INUTEQ
and by carriers to be selected by INUTEQ.
5. If the buyer requests the delivery of goods in a different manner than is usual, INUTEQ
is entitled to charge the associated costs to the buyer.
6. As soon as the goods to be delivered have left INUTEQ’s factory, the risk of the goods
transfers to the buyer. In the event delivery takes place in accordance with the
provisions, the risk of these goods transfers to the buyer the moment the goods have
arrived at their destination.
7. If delivery is in consignments, INUTEQ has the right to view each partial or full delivery
as a separate transaction.
8. The buyer is obliged to take receipt of the purchased goods within the agreed
time. Failing which, INUTEQ is entitled - such at the discretion of INUTEQ - on the basis
of the provisions in Article 6:60 Dutch Civil Code, to claim that the competent court
shall release INUTEQ from its obligation to deliver the agreed goods, or to claim
payment of the purchase price of the non-purchased part without prior notice of
default being required. If the buyer does not comply with its payment obligations,
INUTEQ is entitled to terminate the agreement without any intervention by the court. If
in accordance with the foregoing the buyer fails to take receipt of the purchased
goods within the agreed time and INUTEQ claims payment of the purchase price, the
goods are deemed to have been delivered and INUTEQ shall store the goods for the
account and at the risk of the buyer on payment of all resulting costs. If no term for
receipt has been agreed, INUTEQ is entitled to take the measures set out in this clause
if the buyer has not taken receipt of the goods within one month of an invitation to
this end by INUTEQ.
Clause 6
Complaints on the Part of the Buyer.
1. The buyer must allow for the usual margins and minor changes in the goods to be
delivered in respect of the quotations provided by INUTEQ as provided for in clause
2(2) of the current general terms and conditions and in the information,
measurements, colour fastness, weights etc provided in its order confirmation. More in
particular the foregoing applies to departures from the contracted quantities. The
goods delivered by INUTEQ may therefore deviate from the description in the
quotation and order confirmation if and insofar as it concerns small differences in size,
quantity differences and minor changes.
2. Complaints from the buyer relating to defects to goods that are visible externally must
be notified to INUTEQ by the buyer within 3 days from delivery. This must take place by
registered letter setting out a clear and precise description of the complaint, listing
the invoice number with which the relevant goods have been invoiced, or at any rate
listing the number referred to in the order confirmation if the buyer has not yet
received an invoice. At the time of delivery of goods delivered by INUTEQ, the buyer
must carry out a careful and prompt inspection.
3. Defects which that not visible externally at the time of delivery, nor could be apparent
during a careful and prompt inspection, must be notified to INUTEQ by the buyer in
writing within 3 days of the buyer becoming aware of the defects or needing to have
been aware of these defects, in the manner as determined in paragraph 2.
4. Any right of claim of the buyer towards INUTEQ relating to defects in goods delivered
by INUTEQ lapses if:
a) the defects have not been notified to INUTEQ within the periods and/or in the
manner as prescribed above in paragraphs 2 and 3;
b) the buyer renders INUTEQ insufficient collaboration for being able to carry out an
investigation into the alleged complaints; INUTEQ has the right to inspect the
rejected goods;
c) the defects have arisen due to the buyer installing, treating, using, storing or
maintaining the goods delivered by INUTEQ in an incorrect manner or the buyer
has used or treated the goods in a manner, or for purposes, other than
anticipated by INUTEQ;
d) the guarantee term stated in the individual agreement has expired or, if no
guarantee term has been agreed between parties, after a period of 12 months
has passed from the day on which the goods have been delivered to the buyer
by INUTEQ;
e) the buyer fails to keep the rejected goods until INUTEQ takes these goods back or
has requested the buyer to destroy these goods.
f) The guaranteed term is 1 year from the moment of delivery or, if and insofar as
acceptance has been agreed, from the moment of acceptance.
5. If the rejected goods have been processed, the goods are deemed to have
been accepted.
6. Information on the suitability of the use of the goods delivered by INUTEQ is not
binding and does not release the buyer from carrying out its own tests and
investigations into their suitability.
7. The buyer is not entitled to terminate the agreement if there is an insignificant
shortcoming by INUTEQ in the performance of its obligations. There is an
insignificant shortcoming if 0.5% of the total delivered goods is defective. If
there are visually observable defects, the buyer is entitled to terminate the
agreement if the defective products constitute more than 4% of the total.
8. Defects in a non-significant partial delivery do not entitle the buyer to
terminate the agreement for the remaining part.
9. INUTEQ endeavours to achieve the specific thickness and weight. If reasonably
possible, INUTEQ shall comply with the requested wall thickness and weight,
but for technical reasons INUTEQ cannot guarantee complete performance
Clause 7
Liability.
1. Only if the guarantee obligations in respect of the goods delivered by INUTEQ are
not provided by third parties (such as manufacturers) can the buyer rely on its
(guarantee) claims towards INUTEQ. INUTEQ’s liability is in that event limited to defects
that are the result of manufacturing and material defects.
2. If and insofar as there are defects as a result of manufacturing and material defects,
INUTEQ is exclusively obliged to:
a) repair of the defects;
b) deliver replacement goods or parts, after return of the defective goods or parts;
c) refund the received purchase price/credit the invoice sent to the buyer;
d) pay compensation to be paid in consultation with the buyer in a different form than
referred to above. INUTEQ determines which form of compensation as referred to
above under a to d is applied.
3. INUTEQ cannot be held liable if the buyer has carried out repairs and/or made
changes to the goods or had this done without the prior express and written
permission of INUTEQ.
4. In addition to all specific restrictions of liability referred to in these general terms and
conditions, it applies in general that INUTEQ can never be held liable for any loss
suffered by the buyer or a third party, except in the case of an intentional act or gross
negligence. INUTEQ is therefore never liable for consequential or trading loss, direct or
indirect loss, however named - loss of profit and loss owing to stoppage included -
suffered by the client, its subordinates or third parties engaged by it due to the whole
or partial delivery or redelivery of goods, delayed or defective delivery or the nondelivery
of goods or by the goods themselves. Liability for any loss is limited to the
amount of the invoice sent to the buyer for the delivery of the defective goods.
5. The buyer is not entitled to return the goods delivered by INUTEQ if there is no liability
on the part of INUTEQ. If this nevertheless takes place without valid reasons, all costs
associated with the return are for the account of the buyer. In that case INUTEQ is free
to store the goods at third parties for the account and at the risk of the buyer.
6. The buyer indemnifies INUTEQ against all claims third parties may bring against it in
respect of the performance of the agreement.
Clause 8
Retention of Title and Security.
1. The goods delivered by INUTEQ remain its property until payment has been made in
full of all the buyer owes INUTEQ pursuant to the agreement or otherwise. If INUTEQ
deems such necessary, it is entitled to demand security from the buyer in respect of
the performance of its obligations.
2. The buyer is not entitled to pledge the unpaid goods, to establish a non-possessory
pledge on them or any other real or personal right in favour of a third party.
3. Without prejudice to the foregoing provisions in this clause, the buyer is permitted to
sell the goods to third parties, but exclusively in the context of its normal business
operations. The buyer is then obliged to pay the received money to INUTEQ
immediately or, if not sold for cash, transfer the acquired claims to INUTEQ
immediately.
4. If as a result of treatment or processing by the buyer the ownership right of INUTEQ
vested in the goods it has delivered is lost, the buyer is obliged to immediately
establish a non-possessory right of pledge on the goods in favour of INUTEQ.
5. INUTEQ is at all times entitled to take the goods that are in the possession of the buyer
(or third parties) but are the property of INUTEQ back into its possession as soon as it
can reasonably assume that there is a realistic chance that the buyer shall not
comply with its obligations. The foregoing does not affect the rights for INUTEQ arising
from the law, and INUTEQ in particular reserves the right to claim compensation from
the buyer.
6. The buyer is obliged to insure the risk of fire and theft in respect of unpaid goods and
demonstrate this insurance at the request of INUTEQ.
Clause 9
Trademark.
INUTEQ is entitled to furnish the delivered goods with a trademark and/or code. The customer
is obliged to maintain this trademark and/or this code in any event until all that owed by the
buyer to INUTEQ pursuant to the agreement for delivery of these goods has been paid in full.
Clause 10
Payment.
1. Payment must be in EURO currency, without any deduction or discount, in cash at the
place where INUTEQ is based or by means of transfer into a bank account as
indicated by INUTEQ, before order release, all this unless expressly otherwise agreed in
writing.
2. If the buyer fails to make (full) payment on time, it is in default without any further
notice of default being required. INUTEQ is then entitled to suspend the performance
of its obligations towards the buyer, without prejudice to the right of INUTEQ to
commence other claims against the buyer. INUTEQ is also entitled to demand cash
payment for deliveries still to be made before delivery or a guarantee for prompt
payment. In addition, INUTEQ is then entitled to terminate the agreement without
judicial intervention, without prejudice to INUTEQ’s right to claim compensation.
3. In the event of late payment, the buyer owes default interest of 8% over the basic
interest rate of the bank, calculated on the outstanding invoice amount. The buyer
also owes all extrajudicial and judicial collection and other costs INUTEQ has to incur
in order to claim performance, termination or compensation, whether or not at law,
from the buyer. The extrajudicial costs are estimated at 10% of the principal sum
(including VAT), without prejudice to the right to claim higher extrajudicial costs. In
addition, all other consequences due to the failure to pay on time, such as currency
exchange loss, are for the account of the buyer.
4. In accordance with Article 6:44 Dutch Civil Code, payments first serve to reduce the
costs referred to in paragraph 3, subsequently to reduce the interest and finally to
reduce the principal sum and the accrued interest.
5. If after the formation of the agreement but before delivery of the goods there is a
substantial deterioration in the financial position of the buyer, INUTEQ is entitled not to
proceed with the further performance of the agreement, wholly or in part, or to
demand a change of the payment conditions.
6. The buyer is not permitted to suspend its payment obligations, unless there is an
undisputed counterclaim, or a claim has been awarded at law.
Clause 11
Force Majeure.
Force majeure includes any circumstance outside INUTEQ’s control which is of such a
nature that the performance of the agreement cannot in all reasonableness be demanded
from INUTEQ (non-attributable failure in the performance). Force majeure includes: war, riots
and hostilities of whatever nature, blockade, boycott, natural disasters, epidemics, lack of
raw materials, impediments and interruptions of transport options, interruptions in the business
of INUTEQ, import and export restrictions or prohibitions, obstructions caused by measures,
legislation or decisions of international, national or regional government or other bodies. If
INUTEQ is not able to comply with its delivery obligations completely, promptly and properly
due to force majeure, it is entitled to terminate the agreement (partially) or suspend it for a
definite or indefinite period of time, such at the discretion of INUTEQ. In the event of force
majeure, no right of compensation arises for the buyer towards INUTEQ.
Clause 12
Intellectual Property Rights.
1. Respecting the intellectual property rights of third parties, markings or similar rights of
third parties - including the design models that are produced by INUTEQ on the basis
of information and specifications of the buyer - is the exclusive responsibility of the
buyer. The buyer is liable for the consequences of an infringement of such rights and
indemnifies INUTEQ against any claim from third parties.
2. Each party shall immediately notify the other party if third parties hold one of the
parties liable for an infringement of intellectual property rights.
3. All documents provided by INUTEQ to the buyer in respect of the performance of
the agreement, such as calculations, designs, drawings, models etc, remain (the
intellectual) property of INUTEQ. The buyer is not permitted to provide these
documents to third parties without the prior express written consent of INUTEQ.
Clause 13
Termination.
INUTEQ is entitled to terminate the agreement with the buyer with immediate effect in the
event of a (provisional) moratorium of the buyer or the bankruptcy of the buyer. After
termination on this basis, all claims of INUTEQ on the buyer become immediately due and
payable.
Clause 14
Applicable Law.
All quotations, offers and agreements to which these general terms and conditions apply
are exclusively subject to Dutch law, such with the express exclusion of the Vienna Sales
Convention.
Clause 15
Dispute Resolution.
All disputes, of whatever nature, relating to/arising from the quotations, offers or
agreements submitted by INUTEQ or from deliveries made by INUTEQ are resolved by the
competent court of the Overijssel district