Terms and conditions of sale Sentech B.V.
These general terms and conditions are applicable to, and form an integral part of every offer, quotation and agreement relating to products or services to be supplied by Sentech B.V. (hereinafter referred to as: Sentech) of any nature whatsoever unless explicitly agreed otherwise in writing. For the purposes of these general conditions the “customer” means any (legal) person that Sentech asked or instructed to provide services as well as any (legal) person that orders and/or buys goods from or through Sentech. Any conditions applied by the customer are hereby explicitly rejected. Sentech is entitled to change its (general) conditions. These changes shall enter into effect four weeks after they are announced, or on a later date as stated by Sentech in the notification. If the customer does not accept a change, the customer concerned may dissolve the agreement in writing from the date that the new conditions enter into effect. Sentech must receive notification of the termination before the change enters into effect.
All offers made by Sentech are free of obligation, unless the quotation stipulates a term for acceptance. An agreement first enters into effect by written (order) confirmation from Sentech or through actual execution by Sentech. Unless explicitly agreed otherwise, every offer is based on providing the performance quoted under normal circumstances and during normal working hours. The amounts quoted in offers by Sentech are based on the prices, exchange rates, wages and salaries, taxes and any other factors that are relevant for the price at the time of the offer. If a change takes place in one or more of the factors referred to after the order confirmation, Sentech reserves the right to modify the agreed price accordingly. If the price is increased by virtue of this provision pertaining to price increases of more than 10%, the customer reserves the right to dissolve the agreement in writing within eight days after the price increase. All specifications in the quotations or agreements and the enclosures thereto, such as pictures, drawings, measures, weights, yield and colours, only serve as an indication. Small deviations are therefore not for Sentech’s account and risk.
All prices are in euros and are exclusive of value added tax (VAT) and other levies that are imposed by the authorities. Possible extraordinary additional costs relating to the import and/or customs clearance of the goods to be delivered to the customer by Sentech are not included in the price and are therefore for the customer’s account unless explicitly agreed otherwise. The prices quoted in the quotations or agreements are subject to review, if it appears that a mistake was made in the calculations. Sentech reserves the right to charge the customer an administrative fee in the case of orders with an invoice value of EUR 350.00, excluding VAT or less. If and in so far as Sentech has agreed payment with a supplier in respect of the purchase by Sentech of (goods that form part of) goods to be supplied to the customer by Sentech in a foreign currency, Sentech reserves the right to adjust the agreed price in such a manner that it corresponds with the change in the exchange rate parity.
Payment should take place in accordance with the payment conditions stated on the invoice. If no payment conditions are quoted on the invoice, the customer shall pay within thirty days after the date on the invoice. Sentech at all times reserves the right to make cash on delivery shipments or to demand a full or partial advance payment, including if, in the opinion of Sentech, the customer is less solvent. If the customer fails to pay within the term set out in the previous provision, the customer shall be legally in default. The customer is then liable to pay interest at 2% per month. If no payment has been received by the end of the alternative payment term stated in a written reminder, the customer shall owe Sentech a fine equal to 10 % of the principal sum excluding VAT, which the customer owes Sentech, irrespective of whether or not Sentech had to incur any extrajudicial debt collection costs. Without prejudice to Sentech’s rights arising from the previous provision, the customer is obliged to reimburse Sentech all extra-judicial costs which Sentech has to incur to collect the amount it is owed by the customer and which costs can be regarded as a financial loss for Sentech. The application of Article 6:92 of the Netherlands Civil Code is excluded.
5. Properties of the product supplied
The product supplied to the customer by Sentech should meet the technical requirements that the customer specified to Sentech beforehand. If and in so far as that product has not been developed by Sentech, but has been purchased by Sentech from a manufacturer, the customer shall be presented with (a copy of) the data sheet that Sentech obtained from the manufacturer for the product in question upon first request. It is possible for the properties of products of the same kind and/ or the same type supplied – or to be supplied by Sentech to deviate slightly from one another. Irrespective of whether or not the customer exercises the right referred to above with respect to obtaining the data sheet, Sentech cannot be held responsible for the small mutual deviations referred to as long as these products meet the criteria set out in the data sheet. Unless Sentech has explicitly informed the customer that the product supplied was developed by Sentech, the customer should assume that a data sheet shall be made available to him upon first request.
The customer shall at all times lend Sentech his full co-operation and supply Sentech with data and information which is deemed essential or useful for the devel-opment or completion of the product the customer ordered from Sentech. The customer is responsible for the quality, accuracy and completeness of the data and information it supplies. The agreed delivery time commences as soon as Sentech is in possession of all data and information to be supplied by or on behalf of the customer and as soon as any agreed advance payments have been made to Sentech. Delivery takes place in accordance with the applicable Incoterms: Ex Works. Goods are deemed to have been delivered, as soon as Sentech informs the customer that the goods, which may or may not still need to be assembled ei-ther in part or in full, are ready for collection by the customer at Sentech or at a third party or are ready to be shipped by order of the customer. The goods sup-plied are for the customer’s risk from the moment of delivery. If it has been agreed between Sentech and the customer that a certain product is to be delivered within a specific term, the period in question, the time in question, or the term in question should be deemed to have been given by approximation and to have been laid down in the expectation that the circumstances under which and for which this work shall have to be carried out with respect to the time schedule shall not change after the agreement has been entered into. A mere overrun of the period of time referred to in the previous provision or the term referred to in that pro-vision does not put Sentech in default. In that case the customer shall enter into consultations with Sentech about avoiding further delays before possibly putting Sentech in default. Sentech at all times reserves the right to invoice products to be supplied or products that have been supplied per sub-delivery.
Any complaints about the execution of the work or a product delivered by Sentech must be substantiated by the customer and communicated to Sentech in writing without delay. If eight days have passed since the execution of the work or delivery of the products, the customer will no longer be entitled to submit a complaint unless it would not have been possible to detect a defect through a careful and timely check at the time of delivery. In that case, the customer must substantiate the defect and bring it to the attention of Sentech in writing within ten days after the defect is known to the customer, or could have been known. This written notice should contain a detailed description of the imperfections or shortcomings in order to enable Sentech to respond in an adequate manner. Complaints relating to a particular shipment do not have any effect on earlier and/or subsequent shipments arising from the same agreement.
8. Retention of title and right of retention
All goods delivered by Sentech shall remain the property of Sentech under all circumstances as long as the customer has not complied with any claim of Sentech regarding the counter-performance by the customer for a delivery made or to be made by Sentech pursuant to a contract.
The customer is not entitled to pledge the goods in questions to third parties, or to otherwise encumber or transfer said goods in whole or in part other than in the ordinary course of business or in accordance with the normal purpose of the goods. In the event of breach of the provisions of the preceding sentence, the purchase price shall immediately be due in full. Sentech has a right of retention in respect of all goods of the customer in Sentech’s possession in connection with the performance of any contract made between Sentech and the customer, for the recovery of all claims of Sentech on the customer under such contract.
9. VAT transfer scheme
If pursuant to the Amendment of the Turnover Tax Implementation Decree 1968 (Royal Decree dated 19 June 1982, Bulletin of Acts, Orders and Decrees 357) the transfer of taxation scheme relating to turnover tax applies, the customer must inform Sentech hereof in writing when making the assignment. In the event of failure to do so Sentech is entitled to recover the turnover tax to be paid from the customer or set it off against a claim of the customer.
10. Force majeure
Defaults in the performance by Sentech shall not be attributed to Sentech if they are not Sentech’s fault and under Dutch law they should not be at Sentech’s expense. In no case shall they be attributed to Sentech if they are caused due to unforeseen facts and circumstances, including of an economic nature, arising beyond the control of actions of Sentech, such as, inter alia, serious disruptions in operations, enforced downsizing of production, strikes and lock-outs, both at Sentech and at supply companies, war, hostilities, state of siege, mobilisation, be such in the Netherlands or in any other country where any sites of Sentech or of supply companies are based, delays in transport or delayed or erroneous delivery of goods or materials or parts by third parties.
Sentech guarantees, for a period of 12 months after delivery, that a delivery will comply with that which is described in Article 5 of these conditions, unless (1) it concerns a product that is consumed and is thus subject to wear, (2) it is apparent from the nature of the product that it cannot be expected to function for a period of 12 months, or (3) the parties agree otherwise. If the customer makes a justified claim under the guarantee Sentech will rectify the work to be performed or goods to be supplied, at its own discretion, or still perform/deliver as agreed. Insofar as Sentech has delivered goods to the customer under guarantee, all obligations of Sentech ensuing from such guarantee shall lapse if errors, defects or inaccuracies in respect of said goods are the result of inaccurate, careless or inexpert use or management of said goods or if they are the result of external causes such as fire or water damage, or if the customer or a third party has made changes to the goods delivered by Sentech without Sentech’s permission. If the customer bases a claim on any guarantee scheme which has been agreed but such claim subsequently turns out to be unfounded, Sentech has the right to charge the customer for the work and the costs of research and repair which Sentech put in pursuant to such claim in conformity with its usual rates.
12. Test products, samples, prototypes, etc.
If Sentech and the customer have agreed delivery of a (half-)product on trial or delivery of a test version of a product, the customer must inspect whether said product meets all requirements in the shortest possible term. Insofar as such is not the case in the customer’s opinion, at latest on the seventh day after Sentech has made the product available, the customer must inform Sentech in writing as to exactly what shortcomings have been noted and in what way the customer came to this conclusion. The customer shall give a precise description of the test procedure he applied. The customer shall then return the product immediately to Sentech, undamaged. The return shipment shall be at the expense and risk of the customer, unless explicitly agreed otherwise. Subject to the aforementioned timely written notice by the customer, as of the first moment the product in question is made available to the customer it is to be deemed sound, delivered and accepted. As of that time the customer shall irrevocably owe the purchase price. If the aforementioned notice is given, but it then turns out at any time that in reality the alleged default does not exist, or if the customer does not perform his obligation to see to the immediate return shipment of the product, undamaged, the product in question is to be deemed sound, delivered and accepted.
Sentech is only liable for damage which the customer suffers as a result of default of Sentech on the performance of the contract if such damage is the result of intent or deliberate recklessness on the part of Sentech. The total liability of Sentech relating to any default on the performance of the contract between Sentech and the customer shall in all cases be limited to compensation of direct damage and to a maximum of the contract price (exclusive of VAT) agreed for that contract. Direct damage as referred to in the preceding provision exclusively means: (a) the reasonable costs to determine the cause and the scope of the damage, insofar as such determination relates to damage as referred to in these Conditions; (b) any reasonable costs made to effect that Sentech’s faulty performance corresponds with the contract, unless such cannot be attributed to Sentech; (c) reasonable costs which have been made to prevent or limit the direct damage. Sentech is not liable under the provisions of the preceding paragraph if and insofar as the customer has taken out insurance against the relevant damage or could have taken out reasonable insurance. Sentech is never liable for indirect damage, including consequential damage, lost profit, missed savings and loss of profits. Insofar as Sentech uses the services of third parties for the performance of this agreement and these third parties have limited their liability, all assignments awarded to Sentech include the authority to accept such liability limitations on behalf of the customer.
14. Intellectual and industrial property
All intellectual and industrial property rights in respect of all products delivered or developed by Sentech and all individual components of said products and on other materials such as analyses, designs, drawings, data-sheets, documentation, software, reports, offers, and preparatory material therefore lie exclusively with Sentech or its licensors. The customer is therefore not entitled to reproduce or publish said items or disclose them to third parties or allow third parties to use them, unless the contrary ensues from the nature of the relevant goods or from the nature of the contract between the parties. A Sentech delivery must not be provided by the customer to third parties in an unpackaged or modified condition or in any packaging other than the packaging originally applied by or on the in-structions of Sentech without prior express consent from Sentech. The customer is also not permitted to alter or remove any indication concerning intellectual property rights, brands, trade names, or other intellectual or industrial property rights from the delivery. The customer is not free – during the term of the agree-ment and thereafter – to market (brand label) Sentech deliveries under a different name, brand or label (than that of Sentech), to allow products to be copied or to make or let products be made which are identical or similar to Sentech products. With regard to the assignment it issues to Sentech, the customer must have the required (intellectual) property rights. The customer indemnifies Sentech for all third party claims for any infringements of rights by third parties.
15. Confidential information
The customer must deem the offer with appendices, and all technical data and commercial information that Sentech furnishes to the customer as extremely confidential. The customer is obliged to only use such confidential information for his own use and may not disclose, transfer or sell such to third parties or allow third parties the use thereof or in any way relinquish control thereof. The customer shall endeavour to ensure that his personnel and the third parties whose services he uses also comply with this obligation. Sentech is obliged to treat confidential information of the customer as such. Insofar as written information is concerned, Parties shall return such written information on the other parties first request.
16. Dissolution and Termination
Sentech is entitled to dissolve the agreement with immediate effect if the customer applies for suspension of payment or bankruptcy or these are pending against the customer, or if all or part of its assets are seized. All invoiced amounts then become immediately payable. Sentech will never be obliged to pay any compen-sation on account of this termination. In case of dissolution or termination, obligations that by their nature are intended to continue will remain in effect after the agreement ends. These obligations include the provisions with regard to the indemnification in respect of intellectual property rights, the customer’s payment obli-gations and secrecy.
17. Applicable law
All contracts to which these General Conditions apply are governed by Dutch law.
The applicability of the United Nations Convention on the International Sale of Goods of 11 April 1980 (Vienna Convention) is excluded.
18. Competent court
The District Court of ‘s-Hertogenbosch has jurisdiction, to the exclusion of any other court, to adjudicate disputes which directly or indirectly relate to any contract or legally binding transaction to which these General Conditions apply.