ARTICLE 1. GENERAL
1. These general terms and conditions shall apply to each and every offer, tender and agreement between Breakoutbox B.V., hereinafter: the "Seller", and another party to which Seller has declared the present terms and conditions applicable, even if Seller has not specifically referred to these general terms and conditions in an agreement and insofar as parties have not explicitly deviated from the present terms and conditions in writing.
2. The present terms and conditions shall also apply to agreements with Seller, the execution of which calls for the services of third parties.
3. These general terms and conditions have also been written for Seller's employees and its management.
4. The application of any (purchase) conditions employed by the other party is hereby explicitly rejected.
5. Should one or more stipulations of these general terms and conditions be or become null and void, the remaining stipulations of these general terms and conditions shall remain in full force and effect. Seller and the other party will then consult each other to agree upon new stipulations in substitution for the void or voided stipulations. In doing so, the purpose and meaning of the void or voided stipulation will be taken into account as far as possible.
6. In case of differences in interpretation of one or more stipulations of these general terms and conditions, it shall be interpreted in the spirit of these stipulations.
7. In case of situations which are not covered by these general terms and conditions, they shall be interpreted in the spirit of these general terms and conditions.
8. If Seller fails to insist on strict compliance with these general terms and conditions, it does not mean that the stipulations thereof are not applicable, or that Seller waives its right to enforce them in other cases.
ARTICLE 2. OFFERS, PRICES & PROPOSALS
1. All Seller's offers shall be free of obligation, unless the offer contains an acceptance term. An offer or proposal shall become void if the product to which the offer relates to is no longer available.
2. After the other party has placed an order, Seller shall only be bound by it after an order confirmation. By placing an order, the other party accepts these terms and conditions.
3. It shall not be possible to bind Seller to its offers and tenders if the other party should have understood in accordance with the requirements of reasonableness and fairness that the offer or tender, or part thereof, obviously contains a mistake or an error in writing.
4. The prices given in any offer or proposal exclude VAT and other government levies.
5. If the acceptance deviates (whether or not on secondary items) from the offer or proposal given, Seller shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless Seller indicates otherwise.
6. A compound quotation shall not oblige Seller to execute part of the assignment against a corresponding part of the given quotation.
7. Offers and proposals shall not apply automatically to future orders.
8. The packaging is included in our sales terms and conditions and shall not be taken back, except from Euro pallets, which have to be exchanged at delivery. If Euro pallets are not exchanged, the costs hereof shall be charged to the other party.
9. We reserve the right to correct typographical errors, mistakes, or wrong numerical figures.
10. All offers and quotations are valid for a maximum of 30 calendar days from the date of issuance, unless explicitly stated otherwise in the offer or indicated in the tender conditions to which we are responding.
ARTICLE 3. DURATION OF THE AGREEMENT, DELIVERY, EXECUTIONS AND CHANGES TO THE AGREEMENT
1. The agreement between Seller and the other party is entered into for an indefinite period of time, unless the nature of the agreement determines otherwise or parties expressly have, in writing, agreed otherwise.
2. If within the duration of the agreement a date is agreed on for the completion of certain activities or the delivery of certain goods, this shall never be a firm date.
3. If, in the framework of the execution of the agreement, Seller requires data to be provided by the other party, the term of delivery shall commence after the other party has provided Seller with said data correctly and in full.
4. The other party shall be held to take delivery of the goods the moment said goods are at its disposal or handed over to it. If the other party refuses to take delivery of the goods or fails to give the information or instructions necessary to their delivery, Seller is entitled to store the goods destined for delivery at the other party's expense and risk.
5. Seller may at any time engage third parties to perform certain activities.
6. Seller has the right to execute the agreement in stages and invoice the executed parts separately.
7. If the agreement is executed in stages, Seller can suspend the execution of the parts belonging to a following stage until the other party has approved the results of the stage prior to it.
8. If it is shown during the execution of the agreement that the work to be done needs to be changed and/or supplemented in order to ensure its proper execution, parties shall adapt the agreement accordingly in due time and in mutual consultations. If the nature, scope or contents of the agreement, whether at the request or at the instructions of the other party or not, is changed and the agreement undergoes changes with respect to quality and/or quantity, this may influence what was originally agreed upon. As a result thereof, the amount originally agreed upon may be increased or lowered. Seller shall, if possible in advance, make a quotation hereof. If parties agree that the agreement needs to be changed, this decision may influence the time of completion of the execution. The other party agrees the possibility of modification of the agreement, including the change in price and duration of the execution.
9. If the agreement is changed, including supplements, Seller is only entitled to carry out the changes after both an authorized person of Seller and the other party have approved the changed price and other conditions, including the time of execution.
10. If the other party is in default with respect to its obligations towards Seller, the other party shall be liable for all direct or indirect damages (including costs) incurred by Seller.
11. The sales price is, unless agreed upon otherwise, based on Seller's prices, exchange rates, wages, taxes, rights, burdens, freights, etc., at the time of acceptance of the order. If, after the execution date of the agreement, one or more of the cost-determining factors are increased, even as a result of foreseeable circumstances, Seller shall have the right to increase the prices agreed upon accordingly.
12. Prices, conditions and delivery periods solely apply to the given numbers.
13. When over 1.000 items are ordered, a deviation up to a maximum of 1% of the ordered quantity is allowed. The other party shall be bound to purchase the surplus or settle for less.
ARTICLE 4. SUSPENSION, DISSOLUTION AND EARLY TERMINATION OF THE AGREEMENT
1. Seller shall be authorized to suspend the fulfillment of the obligations under the agreement or to dissolve the agreement in the event that:
• the other party does not (fully) fulfill or timely fulfill its obligations resulting from the agreement;
• after the agreement has been concluded, Seller learns of circumstances giving good ground to fear that the other party will not fulfill its obligations;
• the other party was asked to furnish security to guarantee the fulfillment of its obligations resulting from the agreement when the contract was concluded and this security has not been provided or is insufficient;
• as a result of delay on the part of the other party Seller can no longer be expected to fulfill its obligations under the originally agreed upon conditions.
2. Seller shall furthermore be authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement becomes impossible or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
3. If the agreement is dissolved, Seller’s claims against the other party shall be immediately due and payable.
4. If Seller suspends fulfillment of its obligations or dissolves the agreement, it shall in no way be bound to reimburse any damages or costs which are a result thereof.
5. If the other party is responsible for the dissolution, Seller is entitled to reimbursement of the direct and indirect damages, including costs, incurred.
6. If the other party fails to fulfill its obligations under the agreement and this non-fulfillment does not justify dissolution, Seller is entitled to dissolve the agreement immediately without any obligation on Seller’s part to pay any damages or compensation, while the other party, on the basis of default, is obligated to pay damages or compensation.
7. In case of liquidation, (application for) a moratorium, bankruptcy, attachment (if and as far as the attachment is not withdrawn within three months) of the other party, debt restructuring or any other circumstance by which the other party no longer has free disposal over its assets, Seller shall be allowed to terminate the agreement immediately, without being obligated to pay any damages or compensation. In that case, Seller’s claims against the other party shall be immediately due and payable.
8. If the other party cancels (part of) a placed order, the ordered or prepared goods, increased by possible supply, removal and delivery costs and the working hours reserved for the execution of the agreement, shall be fully charged to the other party.
ARTICLE 5. FORCE MAJEURE
1. Seller shall not be held to fulfill any of its obligations towards the other party if it is hindered to do so due to a circumstance through no fault of its own and which cannot be attributed to it by virtue of law, a legal action or generally accepted practice.
2. In addition to the stipulations of the law and case law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to include any external circumstance, whether foreseen or unforeseen, beyond Seller’s control but which prevents Seller from fulfilling its obligations. This includes, but is not limited to: war, threat of war, riots, terrorism, epidemics, natural disasters, lockouts, lockdowns, transport problems, border closures, governmental measures (domestic and abroad), fire, strikes, supply-chain disruptions, IT hacking attacks, critical-infrastructure problems, and other serious disruptions within Seller’s operations or those of third parties engaged.
3. Seller shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfillment of the obligation(s) impossible, occurs after Seller should have fulfilled its obligations.
4. During the period of force majeure, Seller shall be entitled to suspend the fulfillment of its obligations. If this period exceeds 90 days, either party shall be entitled to dissolve the agreement without any obligation to pay damages to the other party.
5. Insofar as Seller has already partially fulfilled its obligations resulting from the agreement at the time of the commencement of the force majeure situation, or shall be able to fulfill them, and independent value can be attributed to the part already fulfilled or to be fulfilled, Seller shall be entitled to invoice the part already fulfilled or still to be fulfilled separately. The other party shall be obliged to pay this invoice as if it were a separate agreement.
ARTICLE 6. PAYMENT & COLLECTION
1. Payment must be made within 14 days from the date of invoice, in the manner indicated by Seller and in the currency in which the invoice is made out, unless explicitly agreed otherwise in writing. Seller is entitled to invoice periodically.
2. Goods shall be delivered only after full payment unless otherwise agreed in writing. If the agreed delivery date falls within the 14-day payment term, payment must be received before delivery takes place.
3. If payment is made via a Letter of Credit (L/C), it must be a confirmed irrevocable L/C. The L/C will be governed by the “Uniform Customs and Practice for Documentary Credits” (UCP 600) or its latest version at the time of the agreement. All related costs and fees shall be borne by the Buyer.
4. If the other party fails to pay within the agreed term, the other party shall be in default by operation of law. In that case, the other party shall owe an interest of 1% per month or the applicable statutory commercial interest rate, whichever is higher. If payment is made after the due date, Seller may charge a fixed administrative late payment fee of €34.50 excluding VAT.
5. Seller is entitled to apply all received payments first to outstanding costs, then to accrued interest, and finally to the principal sum. Goods shall only be delivered upon receipt of full payment.
6. Seller is entitled to refuse a partial payment that does not cover outstanding costs, interest, and principal amounts unless otherwise agreed.
7. Payments must be made without any deduction, suspension, or set-off by the other party, unless expressly permitted by law.
8. Disputes regarding the amount of an invoice do not suspend the payment obligation.
9. All reasonable extrajudicial and judicial costs incurred to collect amounts due shall be borne by the Buyer. Extrajudicial collection costs are set at a minimum of 15% of the outstanding principal sum with a minimum charge of €250. Seller is also entitled to claim all additional actual costs incurred, including but not limited to administrative fees of €100.
10. If Buyer requests a correction to an invoice after it has been issued and paid, Seller may charge an administrative invoice correction fee of €34.50 excluding VAT. This includes, without limitation, corrections requested because of a missing or incorrect VAT identification number or invoice detail provided after completion of the order.
ARTICLE 7. INSPECTION & COMPLAINTS, LIMITATION PERIOD
1. Seller shall not be liable for defects that could have been identified during standard incoming inspections according to ISO/TS 16949 or other applicable automotive industry standards, unless explicitly agreed otherwise.
2. The other party shall be held to inspect whether the delivered goods are suitable for its product. In this respect, Seller can provide a sample shipment, pursuant to the agreed upon material specifications.
3. The other party shall be held to inspect the delivered goods (or have the delivered goods inspected) at the moment of delivery or at the moment of completion of performance of the work. The other party must examine whether the quality and quantity of the delivered goods comply with what was agreed upon, or at least meet the requirements that parties have agreed upon. Seller shall not be liable for any defects of goods discovered after they have been incorporated into other products. Therefore, the other party must inspect whether the delivered goods are sufficiently usable to produce the final product. Possible visible defects must be communicated in writing to Seller within seven (7) days after delivery. Possible invisible defects must be communicated in writing immediately, and in any case within fourteen (14) days after delivery. The notice of default must contain as detailed a description of the defect as possible, so that Seller can react adequately. The other party shall give Seller the opportunity to investigate the concern (or have the concern investigated).
4. If the other party intends to use the delivered goods as semi-finished products to produce final products, the other party shall be held to inspect the delivered goods prior to their incorporation.
5. Timely submitted claims do not suspend the other party’s obligation to pay. The other party remains obliged to take delivery and pay for the goods purchased.
6. If a defect is communicated to Seller at a later stage, the other party shall no longer be entitled to repair, replacement, or reimbursement.
7. If it is determined that a good is faulty and a complaint has been timely communicated, Seller shall, within a reasonable period of time following receipt of the faulty good, or, if the good cannot reasonably be returned, following written notification of the defect by the other party, replace, repair, or reimburse the faulty good or reimburse the other party. In the event the good is replaced, the other party shall be held to return the replaced good to Seller and transfer ownership thereof to Seller, unless otherwise indicated by Seller.
8. If a complaint turns out to be unfounded, the costs incurred by Seller as a result thereof, including investigation costs, shall be fully borne by the other party.
9. After the guarantee period has expired, Seller shall be entitled to charge the Consumer for all repair or replacement costs, including administration, shipment costs, and call-out charges.
10. In deviation from the statutory limitation periods, the limitation period for all claims and defenses against Seller and third parties engaged by Seller shall be one (1) year.
ARTICLE 8. LIABILITY
1. If Seller is liable, this liability is limited to what is set out in this article.
2. Seller shall not be liable for damage of whatever nature caused by the fact that Seller worked on the basis of incorrect and/or incomplete data provided by the other party.
3. If Seller is liable for any damages, the liability of Seller is limited to a maximum of the amount stated on the invoice of the order, or at any rate to that part of the order to which the liability applies.
4. Seller’s liability shall at all times be limited to a maximum equaling the amount of the payment to be made by Seller’s insurer in the occurring event.
5. Seller is only liable for direct damage.
6. Direct damage shall be understood to mean exclusively the reasonable costs incurred to establish the cause and the volume of the damage, insofar said establishment relates to the damage in the sense of the present general terms and conditions, the reasonable costs possibly incurred to have Seller’s faulty performance meet the conditions of the agreement, insofar these are attributable to Seller, and reasonable costs incurred to prevent or limit the damage, insofar the other party demonstrates that said costs have led to the limitation of direct damage as meant in these general terms and conditions.
7. Seller shall never be liable for any indirect damage, including consequential damage, loss of profit, loss of savings, and damage due to business stagnation.
8. The limitations of liability for damage contained in this article shall not apply if the damage is due to intentional act or gross negligence on the part of Seller.
ARTICLE 9. SAFEGUARDING
1. The other party shall safeguard Seller against possible claims filed by third parties who may sustain damage attributable to others than Seller in connection with the execution of the agreement.
2. In case claims are filed by third parties against Seller, the other party shall assist Seller both in and out of court and forthwith do all that can be expected of it. If the other party fails to take adequate measures, Seller is entitled to do so without notice of default. All costs and damage incurred by Seller and third parties as a result thereof are at the expense and risk of the other party.
ARTICLE 10. PROPERTY RIGHTS
1. Even if the Buyer contributes financially to the development of moulds, dies, or production tooling, full ownership and intellectual property rights thereof shall remain with Seller, unless explicitly agreed otherwise in writing.
2. All goods delivered by Seller under this agreement shall remain the property of Seller until the other party has fulfilled all its obligations under this agreement and actual delivery has taken place. The customer authorizes the Seller to register the reservation of ownership at the customer’s cost if the Seller deems its claim to be at risk.
3. All goods are delivered under agreement of "elongated and extended retention of title" with all monies clause.
4. All goods delivered remain in ownership by Seller until full payment has been received. In case of a resale or processing of the goods by the other party, this entitlement shall attach to the proceeds of the resale or processed goods.
5. The goods shall remain the property of Seller and the buyer shall store them so that they are readily identifiable as Seller’s goods, until such time as payment for them and for all other goods agreed to be sold to the company has been received in full. If the goods have been resold, Seller’s beneficial entitlement shall be attached to the proceeds of the re-sale and Seller will be able to claim the full purchase price of the proceeds received.
6. Where ownership of any goods remains vested in the Seller, the Seller shall be entitled to repossess any goods supplied at any time. Seller may, for the purpose of recovering its goods, enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same. It is the sole responsibility of the purchaser to ensure that all goods received from the Seller are fully insured against any eventuality including, but not limited to, fire, theft, flooding, etc., until such time ownership of said goods has passed to the purchaser. Should goods become damaged in any way after they have been received by the purchaser, the purchaser will be liable to pay to the Seller the full purchase price of the goods.
7. The above provisions shall be without prejudice to the Seller’s other rights.
8. Seller shall reserve all rights and authorities to which it is entitled pursuant to the Copyright Act and other intellectual property laws and regulations. Seller is entitled to use knowledge obtained as a result of the execution of this agreement for other purposes, as far as no confidential information of the other party is disclosed to third parties.
9. The other party shall ensure that the order placed with Seller does not infringe upon copyrights, or design and model rights of third parties; the other party shall indemnify Seller for claims filed by third parties in this respect.
10. All moulds, tools, engineering drawings, technical documents, designs, financial modeling, software, and any other intellectual property or production resources related to other manufactured products shall remain the exclusive property of Seller, even if the costs relating to their development or production have been charged to the other party, unless explicitly agreed otherwise in writing.
ARTICLE 11. INTELLECTUAL PROPERTY RIGHTS
1. All intellectual property rights arising from or related to the goods delivered, including but not limited to patents, trademarks, designs, copyrights, software, know-how, and technical documentation, shall remain the exclusive property of Seller unless explicitly agreed otherwise in writing.
2. Seller shall notify the Buyer in writing of any substantial changes in the product, production process, or raw materials that may affect the form, fit, function, or reliability of the goods supplied as per PCN standards.
3. The other party is not permitted to copy, disclose, or make available to third parties any elements protected by intellectual property rights without the prior written consent of Seller.
4. The Buyer acknowledges that all intellectual property created or developed by Seller, whether solely or jointly with others, in the performance of the agreement, shall remain the property of Seller unless explicitly agreed otherwise.
5. In the event that intellectual property rights are infringed by third parties, the other party shall immediately inform Seller in writing and provide full cooperation to protect and enforce Seller's rights.
6. The other party shall indemnify Seller against all claims by third parties regarding any intellectual property rights violations resulting from specifications, drawings, models, or other information provided by the other party.
7. Any violation of this article by the other party shall entitle Seller to claim full compensation for all damages incurred, including consequential damages, loss of profits, and legal costs.
ARTICLE 12. TRANSFER OF RISK
1. All deliveries shall be made Ex Works (EXW) Seller’s premises, Incoterms® 2020, unless explicitly agreed otherwise.
2. The risk of loss, damage, or depreciation of the goods shall transfer to the Buyer at the moment the goods are delivered to the Buyer, or at the moment the goods are made available to the Buyer according to the agreement.
3. If the Buyer refuses to take delivery or is negligent in providing information or instructions necessary for the delivery, the goods shall be deemed delivered and the risk shall transfer to the Buyer from the moment Seller has offered delivery.
4. If transportation of the goods is agreed upon, the risk shall transfer to the Buyer at the moment the goods are handed over to the carrier, even if Seller bears the transportation costs.
5. Any damage occurring during transportation shall be at the Buyer’s risk, unless explicitly agreed otherwise in writing.
ARTICLE 13. APPLICABLE LAW AND DISPUTES
1. All legal relationships involving Seller shall be governed exclusively by Dutch law, even if an agreement is wholly or partially executed abroad or if the party involved in the legal relationship is domiciled abroad.
2. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
3. Any disputes arising out of or related to agreements governed by these general terms and conditions shall be submitted to the competent court in the district where Seller has its registered office, unless mandatory law prescribes otherwise.
4. Nevertheless, Seller retains the right to submit the dispute to the competent court according to the law.
5. Parties shall only appeal to the court after they have made every effort to settle the dispute amicably between themselves.
ARTICLE 14. GENERAL PROVISIONS
1. The version of these general terms and conditions most recently filed with the Chamber of Commerce or otherwise made available by Seller shall apply.
2. Seller shall be entitled to amend or supplement these general terms and conditions. Amendments shall also apply to agreements already concluded, with due observance of a notice period of thirty (30) days after announcement.
3. If the other party does not wish to accept the amended general terms and conditions, it shall be entitled to terminate the agreement in writing within fourteen (14) days after notification of the amendment, effective from the date on which the new terms and conditions would take effect.
4. If these Terms are translated into a language other than English, the English version shall prevail in the event of any conflict. All correspondence, notices, and other written communications hereunder shall be in the English language,