General terms and conditions of sale
Dataflex international BV
Article 1. General
1.1
These general terms and conditions apply to all offers and agreements between Dataflex International BV on the one hand and all affiliated companies declaring these terms and conditions applicable ("Dataflex"), and the Buyer on the other hand, of any nature whatsoever, as well as to any obligations resulting therefrom. Deviations must be expressly agreed in writing with Dataflex.
1.2
If Dataflex and the Buyer have made master agreements in a separate document, these master agreements shall derogate from the General Conditions in the event of a contradiction. In these terms and conditions, "Buyer" means the client, or anyone who enters into or wishes to enter into an agreement with Dataflex, or for whom Dataflex makes an offer for or delivers a Product, as well as its legal successors.
1.3
"Product" in these terms and conditions means any goods or services, delivered or offered by Dataflex.
1.4
If Dataflex does not always require strict compliance with these terms and conditions, this does not mean that these terms and conditions would not apply or that Dataflex would lose the right to require strict compliance with these terms and conditions in future cases, similar or otherwise.
1.5
If any provision of these general terms and conditions is found to be invalid or inapplicable for any reason in any situation, the remaining terms and conditions shall remain in full force and effect.
1.6
Purchase and other conditions, which the Buyer declares applicable, are not binding on Dataflex, unless accepted by Dataflex in writing. Such acceptance may not be inferred from the circumstance that Dataflex leaves unchallenged a communication from Buyer that it does not accept the terms and conditions of Dataflex and declares its own terms and conditions applicable.
Article 2. Offers
2.1
All offers made by Dataflex, in any form, are without obligation, unless expressly stated otherwise.
2.2
All price lists, brochures, and other data provided with an offer are given as accurately as possible. They are only binding on Dataflex if expressly confirmed in writing. Dataflex is not obliged to leave detail data unless otherwise agreed in writing.
2.3
Transmission of offers and/or other documentation does not oblige Dataflex to deliver or accept an order
2.4
Dataflex reserves the right to refuse orders without giving reasons, or to deliver cash on delivery.
Article 3. Agreement
3.1
An agreement is concluded after Dataflex has confirmed an order in writing or after Dataflex has commenced execution of the order. In the latter case, the subsequent order confirmation is deemed to reflect the agreement correctly and fully, unless the Buyer objects to it in writing within 5 working days.
3.2
For agreements for which, due to their nature and/or scope, no order confirmation is sent, the invoice also serves as an order confirmation, which is deemed to reflect the agreement correctly and completely, unless the Customer protests with due diligence.
3.3
Additions and amendments to an agreement shall only bind Dataflex insofar as they have been confirmed in writing by Dataflex
Article 4. Intellectual property rights
4.1
All intellectual property rights belonging to or relating to the Product remain expressly vested in Dataflex. The Buyer only acquires a non-transferable one-time license to use the Product. If Buyer trades the Product on a professional basis, the aforementioned license may, however, be transferred with the Product.
4.2
If new intellectual property rights arise during the use of the Product or through the use of the Product, these belong to Dataflex. Where necessary, Buyer shall cooperate with Dataflex or first request in obtaining those intellectual property rights or the naming of new intellectual property rights.
Article 5. Prices
5.1
Unless otherwise stated, all quotations are subject to price changes.
5.2
Unless otherwise stated, Dataflex prices are:
a. Based on cost prices in effect at the time of the offer;
b. Based on delivery from its premises, warehouse or other place of storage;
c. Excluding the cost of installation, commissioning or demonstrations;
d. Excluding VAT, import duties and any other taxes, levies and duties;
e. Quoted in Dutch currency; any exchange rate changes will be passed on.
5.3
In the event of an increase in one or more of the cost price factors, Dataflex is entitled to increase the order price, all this with due observance of any existing statutory regulations in this respect, on the understanding that already known future price increases must be stated in the order confirmation.
Article 6. Claims
6.1
The Buyer is obliged to check the packaging for possible damage and/or defects immediately on delivery but in any case on the next working day and as fully as possible. Any damage and/or defects to the packaging, if these can be ascertained on delivery, must be noted on the waybill, delivery note, and/or other transport document and reported to Dataflex immediately in writing.
6.2
Without prejudice to the provisions of Article 6.1, the Customer shall be obliged to check the Product for any damage and/or defects as soon as possible after delivery and as fully as possible. Any damage and/or defects to the Product must, if they can be found upon delivery, be noted on the waybill, delivery note, and/or other transport document and if they are not found upon delivery, be reported to Dataflex in writing immediately but at the latest within 8 working days after delivery.
6.3
Complaints regarding any damage and/or defects must always be accompanied by the original packaging.
6.4
Faults and defects, which could not reasonably be detected within the period mentioned in 6.2, must be reported in writing to Dataflex immediately after detection and at the latest within 3 months after delivery of the Products.
6.5
After the expiration of the periods specified in 6.1, 6.2 and 6.4 respectively, the Customer shall be deemed to have approved the Product.
6.6
If and insofar as the complaint is found by Dataflex to be well-founded, Dataflex is only obliged to repair the defect(s) or replace the faulty goods at the discretion of Dataflex, without the Buyer in addition being entitled to any compensation whatsoever.
6.7
Complaining never releases the Buyer from his payment obligation to Dataflex.
6.8
Return of the Product can only take place with the prior consent of Dataflex and under the conditions to be determined by Dataflex. The Buyer is obliged to return the Products at his own expense, in the original packaging and as little damaged as possible to an address to be specified by Dataflex.
Article 7. Payment/Delay
7.1
Payment must be received within 30 days of the invoice date in the bank or giro account designated by Dataflex.
7.2
Unless expressly agreed otherwise in writing, payment will be made without setoff or suspension on any account.
7.3
Customer shall be deemed to be in default and the remaining debt shall be immediately due and payable in the event that:
a. Buyer fails to fulfill any obligation of the agreement in particular the payment or fails to do so on time;
b.Dataflex has good grounds to fear that the Buyer will fail in the performance and he fails to comply with a written demand to declare his willingness to perform his obligations within a reasonable period set in that demand;
c. The Customer has filed for bankruptcy, is declared bankrupt, proceeds to divest itself of its assets or submits a request for suspension of payments;
d. Customer proceeds or decides to discontinue or transfer its business or a significant part thereof;
e. of death or the commencement of a debt restructuring process, if the Customer is a natural person.
7.4
Dataflex shall in the cases mentioned in 7.3 be entitled without any obligation to compensation and without prejudice to any rights to which it is entitled, such as rights in respect of costs or interest already due and the right to compensation, and without notice of default or judicial intervention being required;
a. Dissolve the agreement in whole or in part by giving written notice to that effect to the Customer and/or;
b. Immediately claim in full any amounts owed to Dataflex by the Buyer and/or;
c. Invoke the established retention of title.
Article 8. Retention of title.
8.1
Products delivered to Buyer remain the property of Dataflex and any rights to be granted or transferred remain reserved to Dataflex as long as Buyer has not fully delivered the consideration it owes under the agreement to deliver Products entered into with Dataflex.
8.2
The Buyer shall nevertheless be permitted to further sell such goods, but only insofar as this is customary in the ordinary course of its business. In the event Dataflex invokes its retention of title, the aforementioned consideration shall remain due in full by the Buyer by way of compensation to Dataflex, without prejudice to Dataflex's right to claim full compensation.
Article 9. Delivery time
9.1
Exceeding the (delivery) date shall never entitle the Customer to any compensation, nor to dissolution of the agreement or any related agreement as long as the excess has lasted less than 3 months.
9.2
Interim termination shall not affect Dataflex's right to compensation of fees/costs.
9.3
In the case of delivery in stages, Dataflex may postpone delivery of the next stage as long as the Buyer has not paid for, approved and/or failed to take delivery of the completion of the preceding stage. Subsequent delivery deadlines will be extended accordingly.
Article 10. Delivery
10.1
All Products are delivered Ex Works (Incoterms 2010).
10.2
Dataflex is entitled to deliver in parts (partial deliveries)which can be invoiced separately.
10.3
If Products have not been taken by the Customer after the expiry of the delivery period, they will be stored at the Customer's expense and risk.
Article 11. Transportation/Risk
11.1
The method of any transportation, shipping, packaging, etc., if no instruction has been given by Buyer to Dataflex, will be determined by Dataflex as a good housekeeper/merchant.
11.2
The method of transport, shipment, packaging, etc., if no indication has been given by Buyer to Dataflex, will be determined by Dataflex as a good custodian/merchant.
Article 12. Force majeure
12.1
If circumstances arise which aggravate the fulfilment of the parties' obligations, as can be expected in the normal settlement of the transaction in question, to such an extent that it cannot be assumed that the parties would have accepted the obligation in question even in the presence of these circumstances, the obligations in question shall be suspended on both sides. If a situation as referred to in the previous sentence has lasted longer than 3 months, the parties shall be entitled, within ninety days thereafter, to terminate the agreement by written notice. What has already been performed pursuant to the agreement will then be settled pro rata, without the parties owing each other anything else. Force majeure shall expressly include failure of suppliers.
Article 13. Dissolution/Termination.
13.1
In the event the agreement is terminated or dissolved in any way, the provisions regarding intellectual property rights, confidentiality, applicable law and disputes will continue to apply in full.
Article 14. Secrecy
14.1
Each party acknowledges that all disclosures, documents, drawings, specifications, patterns, intellectual property rights and other technical information ("Confidential Information") remains the property of the owner and has been shared in trust and on the understanding that (a) all Confidential Information will be promptly returned to the owner upon first request, (b) the recipient will not use the Confidential Information, in whole or in part, for any purpose other than the performance of the agreement, and that (c) the recipient will not disclose or share the Confidential Information, in whole or in part, with any third party.
14.2
Not considered Confidential Information is information that (I) becomes part of the public domain other than by default of the recipient, (II) is used or disclosed with the prior written consent of the owner, or (III) has been disclosed to that court by order of a court of competent jurisdiction.
14.3
The Customer is obliged to take measures so that this confidentiality is observed by its employees.
Article 15. Warranty
15.1
Dataflex guarantees the soundness of the Product for a period of twelve months after delivery. If it appears that the Product was not sound, the item must be returned to Dataflex carriage paid, after which it will choose whether to repair the item, replace the item or credit the Buyer for a proportionate part of the invoice.
15.2
After replacement, the Product or the replaced part thereof becomes the property of Dataflex.
15.3
The Buyer must in all cases give Dataflex the opportunity to repair any defect and/or perform the processing again.
15.4
The Buyer can only claim warranty after he has fulfilled all obligations towards Dataflex.
15.5
No warranty is given if defects are the result of normal wear and tear; injudicious use; non- or incorrectly performed maintenance; installation, assembly, modification or repair by the Customer or by third parties; an external cause such as fire damage.
15.6
No warranty is given on Products that were not new at the time of delivery or on items prescribed by Client or supplied by or on behalf of Client;
15.7
Performance of its guarantee obligations by Dataflex, applies as sole and full compensation. Dataflex is not obliged to any further obligations, nor is the Buyer entitled to a claim to dissolve the agreement.
15.8
If Dataflex receives the Products from a supplier, the warranty is limited to the applicable warranty of the supplier. Dataflex will inform Buyer on request of the applicable provisions.
15.9
Repair outside the scope of the applicable warranty will be charged by Dataflex.
Article 16. Liability
16.1
Liability of Dataflex for consequential loss is excluded. Consequential damage shall in any case expressly include damage to persons, goods other than Products, loss of profit, loss of turnover and delay damage.
16.2
In all cases, Dataflex's liability is limited to the total amount of the agreement in question.
16.3
In any case, Dataflex is not liable for damage, which has arisen or is caused by the use of the delivered goods or by the unsuitability thereof for the purpose for which the Buyer purchased it.
Article 17. Applicable law and choice of forum
17.1
The express terms of these General Terms and Conditions and the offer/agreement to which they apply shall supersede all warranties, conditions, stipulations, representations, undertakings and obligations, whether express or implied arising by law, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law. Dutch law applies to the agreement(s). The courts of Rotterdam shall have jurisdiction to settle disputes.
