GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
of Ockyz B.V.
Filed with the Chamber of Commerce in Rotterdam under number 63778319
1 General
1.1 These general terms and conditions of sale and delivery shall apply to all offers, quotations and contracts made by Ockyz B.V. (hereinafter 'Ockyz'), in which Ockyz undertakes to deliver products to buyer.
1.2 The applicability of general conditions of the buyer or any other general conditions is expressly rejected.
1.3 Departures from these general terms and conditions will only be valid if expressly agreed to in writing by Ockyz.
1.4 Insofar as these general terms and conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.
1.5 The term 'in writing' shall have the following meaning: by letter, by fax or by e-mail.
2 Offers and conclusion of agreement
2.1 All offers made by Ockyz shall be free of obligation, even if they contain an acceptance period.
2.2 An agreement shall come into effect once Ockyz has confirmed the order in writing.
2.3 Any agreement will be concluded under the resolutive that the buyer, according to the credit insurance company or to Ockyz, will be sufficient creditworthy.
2.4 Any offer made or undertaking given by a representative of Ockyz shall only be binding insofar as the latter confirms this in writing.
2.5 Any models, designs, drawings, samples or examples supplied and / or shown with the offer are considered to be indicative only unless otherwise agreed in writing.
3 Prices
3.1 Unless otherwise agreed in writing prices shall be stated in euro, exclusive of VAT and other taxes and are based on Ex Works (EXW, Incoterms® 2010).
3.2 The prices payable by the buyer shall be those set forth in Ockyz's price-list in force at the time the order is received by Ockyz.
3.3 Any price cited by Ockyz shall be based on the existing monetary conditions, labour costs, procurement prices, duties, taxes and other levies, subsidies and the like prevailing at the time the agreement concerned is concluded. In the event that one or more of these cost price components increase after conclusion of the agreement but before the relevant products have been delivered, Ockyz shall be entitled to pass on any reasonable price increase to the buyer.
4 Delivery
4.1 The terms and conditions of delivery shall be agreed per transaction. All terms and conditions of delivery shall apply in accordance with Incoterms® 2010.
4.2 Delivery times shall be determined per transaction. The delivery time shall commence at such time as the relevant agreement is concluded in accordance with clause 2, Ockyz is in possession of all documents and details to be provided by the buyer and Ockyz has also accepted any security for payment which may have been agreed or have received any prepayment.
4.3 Unless otherwise agreed, a specified delivery time shall under no circumstances be deemed to constitute a fatal date. Ockyz shall not be in default in respect of such delivery time until the buyer notifies it in writing that it is in default, in doing so stipulates a reasonable period of time within which Ockyz has the opportunity to effect delivery, and the latter still fails to do so.
4.4 If the time for delivery is exceeded, the buyer shall not be entitled to cancel or terminate the agreement, unless the time for delivery is exceeded with more than 8 weeks. The buyer will never be entitled to any compensation in case of late delivery.
4.5 The buyer’s failure to comply with his duty to effect payment (or to do so on time), shall have the effect of suspending Ockyz's duty to effect a delivery.
4.6 Ockyz reserves the right to effect a delivery in parts. Each partial delivery shall be deemed to represent a separate agreement. Ockyz shall be entitled to demand payment for each partial delivery before proceeding with any other.
4.7 In the event that the buyer has not accepted the products at the time that these are delivered to him, the products will be stored at the expense and risk of the buyer. Ockyz shall be entitled to consider the agreement as dissolved with immediate effect, all this while reserving all other rights of Ockyz.
5 Payment
5.1 Ockyz shall at all times have the right to demand full or partial payment in advance. As to all other sales, payment must be made by the buyer within 30 days after the relevant invoice date, unless otherwise agreed in writing. Payment must be made into an account which is designated by Ockyz for this purpose, without any discount, suspension or claim of compensation unless otherwise agreed in writing.
5.2 Payment made by the buyer will first be applied to settle all interest and costs payable and subsequently for those invoices that have been outstanding for the longest periods. This will also be the case if the buyer states that the payment relates to a later invoice.
5.3 In the event that payment is not effected on time, the buyer shall be deemed to be in default without the need for any notice of default or judicial intervention, and he shall be charged an interest over the amount due of 1,5% per month or part of a month from the moment of default. All costs involved in collecting the amount due, both judicial and extrajudicial, shall be for the account of the buyer. The extrajudicial costs owed will never be less than 15% of the sum to be collected subject to a minimum of € 200,-. If Ockyz can prove that it has incurred higher costs, that were necessary in all fairness, then these, too, shall be eligible for compensation.
5.4 Furthermore, subject to any other rights Ockyz may have pursuant to the law or the agreement, in the absence of timely payment it shall be entitled either to suspend further delivery or to terminate all or part of the relevant agreement without the need for a notice of default or judicial intervention, such at its own discretion and subject to Ockyz's right to seek compensation for any harm it has suffered.
5.5 At any rate, the entire purchase price shall fall due with immediate effect in the event that the buyer fails to effect timely payment or if he goes bankrupt, is granted a suspension of payments, is placed in the care of a guardian, his possessions are attached, he dies insofar as he is a natural person, or in the event that the buyer’s business is liquidated or dissolved.
5.6 Upon or after entering into the agreement and before its implementation, Ockyz will be entitled to demand a guarantee from the buyer that both the payment obligations and any other obligations arising from this agreement will be fulfilled. Refusal by the buyer to provide the required security gives Ockyz the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the contract wholly or partially, without prejudice to his right to compensation for any damages suffered by him.
6 Retention of title
6.1 The products supplied shall remain the property of Ockyz until all that is owed for the supply of those products, including any costs, damages and interest, as well as any amount payable due to the buyer’s failure to comply with his obligations pursuant to this agreement or any other, is paid in full.
6.2 The buyer is obliged to keep and/or render the products subject to retention of title in Ockyz’s favour identifiable and to keep them separate from each other and from other products held by the buyer.
6.3 Until title to the products passes to the buyer, the buyer shall not be entitled to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. Nevertheless, the buyer shall be entitled to sell these products in the normal conduct of his business.
6.4 The buyer has a duty of care with regard to the products covered by the retention of title and must insure them and keep them insured against all of the risks customary in the sector.
6.5 The buyer shall at all times help Ockyz exercise its right of ownership. As long as retention of title applies, the buyer shall have a duty to grant Ockyz access to his buildings and premises.
6.6 When first so requested by Ockyz, the buyer shall be obliged to pledge to Ockyz any accounts receivable he acquires in respect of products supplied by Ockyz which are subject to retention of title and have been sold to his buyers.
7 Complaints
7.1 The buyer is obliged to check the products upon delivery for any visible and/or immediately observable defects. If the buyer fails to report defects within 2 working days after the date of delivery, the buyer will be considered to have approved the products supplied and complaints will no longer be considered. Defects which can only be observed at a later stage, shall be reported to Ockyz within 14 working days after delivery.
7.2 The buyer shall provide Ockyz with the opportunity to investigate or have investigate the complaint. The buyer shall grant all necessary co-operation with the investigation.
7.3 Small deviations in colour, finish and size are permissible in the business and will not be accepted as grounds for a complaint.
7.4 Complaints do not postpone the payment obligations of the buyer unless the buyer has the express written permission of Ockyz in this respect.
7.5 In cases of a justified and timely claim Ockyz will, acting at its own discretion, either redeliver free of charge or credit the buyer.
7.6 Products in which regard a rightful claim has been lodged may only be returned to Ockyz with the prior written approval of Ockyz.
7.7 Complaints about the invoice must be notified to Ockyz within 5 working days after invoice date.
8 Liability
8.1 Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on the part of Ockyz, any liability of Ockyz for any damage is excluded. Liability for any indirect or consequential damage including lost profits or loss ensuing from late delivery, is expressly excluded.
8.2 In all cases where Ockyz is obliged to pay compensation for damages, the aggregate liability of Ockyz to buyer under any theory or ground shall at all times be confined to the net invoice value of the products concerned or to that part of the net invoice value to which a claim for compensation is directly or indirectly related. Total compensation for damages payable by Ockyz shall in no event exceed € 2.500,- per event, whereby a series of related events will be considered as a single event.
8.3 Ockyz will never be liable for any damages if:
- the damage is caused by a circumstance primarily located or originating outside the products;
- the buyer has continued to use the products after the discovery of a defect;
- the products are not used in accordance with its instructions for use and safety instructions:
- Sweakers® are suitable for swimming pools only.
- Sweakers® are not suitable for grassy surfaces or other surfaces that could damage the yarn or thread.
- Sweakers® are not suitable for running around swimming pools
- Sweakers® are not suitable for slowing down on a water slide.
- It is forbidden to violate any safety instructions and, or regulations of the swimming pool or swimming area one is attending while wearing Sweakers®.
8.4 The buyer shall indemnify Ockyz against any claim made by a third party in respect of which Ockyz is not liable under these terms and conditions.
8.5 All claims against Ockyz other than those which have been acknowledged by Ockyz shall lapse by the mere expiry of 12 months following the origin of that claim.
9 Force majeure
9.1 In the event of Force majeure, Ockyz shall be entitled to withdraw its quotations, suspend deliveries or terminate any relevant agreement without judicial intervention, and it shall not be required to provide any compensation.
9.2 In addition to what the law considers to be Force majeure, Force majeure of Ockyz should be understood to mean war, civil unrest, boycots, embargo´s, sanctions, rioting and fire, strikes held by the employees of Ockyz or third parties called in by Ockyz in connection with the implementation of the agreement, illness of employees of Ockyz or third parties called in by Ockyz in connection with the implementation of the agreement, measures taken and/or prohibitions issued by the Dutch government and/or a foreign government by which Ockyz is bound, unforeseen and unpredictable traffic impediments, accident(s) with a means of transport employed in connection with the implementation of the agreement as well as unforeseen technical defects in these means of transport, failure to perform by the suppliers of Ockyz, as well as all other unforeseen circumstances that prevent Ockyz from implementing the agreement properly and on time and that are not for the account and risk of Ockyz.
9.3 In the event that Ockyz relies on Force majeure, it shall immediately notify the buyer thereof in writing, and also of the cessation thereof.
9.4 Where Ockyz has already executed part of an agreement, the buyer shall pay the purchase price for any products that have been delivered.
10 Suspension and termination
10.1 In the event that the buyer fails to comply with his obligations pursuant to an agreement into which he has entered, or fails to do so properly or on time, if there are grounds to fear that this will occur, or in the event that the buyer applies for a suspension of payments, files for bankruptcy or liquidates his business, Ockyz shall be entitled to suspend or terminate the agreement concerned without the need to give notice of default or for judicial intervention, and it shall not have a duty to provide any form of compensation.
10.2 Any claim on the part of Ockyz pertaining to a part of the agreement which has already been executed, or harm suffered as a result of its suspension or termination, which shall be deemed to include loss of profit, shall fall due with immediate effect.
11 Cancellation
11.1 If the buyer wishes to cancel the agreement without Ockyz having failed in the performance thereof and if Ockyz so agrees, Ockyz is entitled to charge the expenses, damages and lost profit and, to Ockyz´s own choice and depending on all circumstances (e.g. already performed supplies/production and whether it concerns a customised product or not), 50% to 100% of the contract price.
12 Product recall
12.1 Ockyz may impose the obligation on the buyer to remove products that he has brought onto the market and which are defective, or in which a defect threatens to manifest itself, from the market within a reasonable period of time to be stipulated by Ockyz.
12.2 For the purpose of implementing a potential product recall, the buyer shall maintain adequate records of its sales of the products to customers for a period of at least 3 years after the date of sale. Such records shall include dates and quantities of shipments, batch numbers and other information which would allow an expeditious recall. The costs of any product recall shall be born by the party who is to be considered as liable for such recall.
13 Intellectual property rights
13.1 Ockyz retains all intellectual property rights related to delivered products, even if the products have been designed or developed specifically for the buyer, unless otherwise agreed in writing.
13.2 The buyer is not permitted to modify all or part of any products supplied. The buyer shall not affix any other trademark to the products, to use the relevant mark in any other way, or to register it in his own name.
13.3 The buyer will immediately alert Ockyz if a third party infringes or threatens to infringe the intellectual property rights of Ockyz or if third parties adopt the position that products of Ockyz infringe their own intellectual property rights.
14 Governing law and forum
14.1 These general terms and conditions and any agreements entered into by Ockyz shall be solely governed by and construed in accordance with the law of the Netherlands. The application of the United Nations Convention on Contracts for the International Sale of Goods (1980) [CISG] shall be excluded.
14.2 In case of any dispute the competent court in Rotterdam, the Netherlands, will be entitled to deal with the dispute unless Ockyz would elect to submit the dispute to the competent court of the country in which the buyer is domiciled.
14.3 The provisions of Article 14.2 leave intact the right of Ockyz to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Rotterdam, the Netherlands. The arbitral procedure shall be conducted in the English language.
