General Terms and Conditions of Sale and Delivery

 

 

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF THE PRIVATE COMPANY WITH LIMITED LIABILITY BOSTON GROUP B.V. AT ROTTERDAM, TRADING UNDER THE NAME “BOSTON GROUP”

 

 

Clause 0           Definitions

0.1     In these General Terms and Conditions Boston Group is understood to mean the private company with limited liability Boston Retail Products B.V., incorporated in accordance with Dutch law and having its registered office at Rotterdam and branches at various countries across Europe, registered with the Chamber of Commerce at Rotterdam under number 24270351.

0.2     In these general terms and conditions the other party is understood to mean the person or company to whom Boston Group sells and supplies items in the broadest sense of the word or on the instructions of whom Boston Group carries out services.

 

Clause 1           Applicability of these General Terms and Conditions

1.1     These General Terms and Conditions apply to all quotations, assignments and agreements of Boston Group, relating to the supplies and goods and/or parts unless explicitly agreed otherwise in writing. For the purposes of these General Terms and Conditions articles are understood to include services.

1.2     If at the moment of concluding the agreement the other party refers to its own general terms and conditions Boston Group will now for then dismiss these general terms and conditions except if Boston Group has explicitly made known in writing that it will acknowledge these general terms and conditions.

1.3     These General Terms and Conditions will also apply in favour of third parties who, on the instruction of Boston Group, will execute the agreement in its entirety or in part.

 

Clause 2           Quotations

2.1     The quotations, official lists, prices and stock specifications made by Boston Group are always entirely without any obligation. Any pictures, descriptions, drawings, specifications of measurements and weights, technical specifications and such in prospectuses and such are always entirely without obligation and will not be binding for Boston Group.

2.2     Sending offers and/or brochures and/or documentation and/or budgets and/or plans and/or drawings and/or models and/or price lists and such does not oblige Boston Group to supply or accept the order. Non-delivery or non-acceptance of an order will be made known to the other party by Boston Group at the earliest occasion. The above documents will at all times remain the property of Boston Group and must be sent back at Boston Group’ first request. Without the explicit permission of Boston Group, these documents may not be copied nor made public to third parties except in so far as necessary for the normal business operations.

2.3     Boston Group retains the right to refuse any orders without giving reasons, or to deliver goods ‘cash on delivery’.

 

Clause 3           Agreement

3.1     After placing an order the agreement between Boston Group and the other party will only become valid from the moment the order has been confirmed in writing by Boston Group, or when Boston Group has commenced the execution of the order.

3.2     Any agreements and/or changes including (oral) agreements and commitments by our staff, representatives, agents or intermediaries, will only be binding on Boston Group if these have been confirmed in writing.

3.3     Boston Group is entitled at the time or following the conclusion of the agreement, before (continuing) its performance, to require from the other party an advance payment or to require a guarantee that both the payment obligations and any other obligations, will be met.

 

Clause 4           Prices

4.1   Unless stated otherwise all price indications by Boston Group are made subject to price changes. It will be indicated in the order in which currency prices will be quoted.

4.2 Unless stated otherwise, all prices of Boston Group:

-   are based on the level of the purchase prices, wages, labour costs, social securities, freight, insurance premiums and other costs;

-   are based on delivery ex works, warehouse or other storage depot;

-   are exclusive of VAT, import duties, levies imposed by the government, rights and other taxes;

-   are exclusive of packaging and sending costs, loading and unloading costs, insurance costs and order costs;

4.3   In case of an increase of one or more cost price factors, Boston Group is entitled to increase the order price accordingly, taking into account any relevant statutory provisions on the understanding that any reasonably to be expected price increases must be stated with the order confirmations and without prejudice to the right of the other party to dissolve the agreement on these grounds. If the price increase takes place within three months after concluding the agreement, the other party is entitled to dissolve the agreement unless Boston Group has the obligation to increase prices due to statutory provisions.

 

Clause 5           Payment

5.1   Payments must be made within the term of payment stated on the invoice on a bank or giro account indicated on the invoice by Boston Group (f.a.o Boston Retail Products B.V.) unless the parties have agree otherwise in writing. If the invoice does not state a term of payment, a payment period of 30 days is applicable. The value date indicated on the bank or giro statement of account of Boston Group is decisive and will therefore be considered as payment date.

5.2   Boston Group at all times retains the right to ask advance payment, cash payment or security for payment.

5.3   In the event the other party:

a.       is declared bankrupt or in liquidation, assigns an estate, files a request for suspension of payment or if its entire property or part of it is attached;

b.      dies or is placed under tutelage;

c.       fails to fulfil any obligation ensuing from statutory provisions or from these General Terms and Conditions;

d.      fails to pay the invoice amount or part of the invoice amount within the indicated term of payment;

e.       proceeds to a suspension or transfer of its business or an important part thereof, including bringing in its business into a company to be incorporated, or changes the object of its business,

 

the other party will be in default due to the mere occurrence of either of the above circumstances. In the event, all claims by Boston Group on the other party will be immediately due and payable and Boston Group will be entitled to suspend the (execution of the) agreement in full or in part without notice of default and without judicial intervention or to consider the agreement dissolved without prejudice to Boston Group’ right to damages and reimbursement of costs and interest.

 

Clause 6           Interest and costs

6.1     If and at the moment when the payment is not, or partly, effected at the appropriate moments of payment, Boston Group, without prejudice to all its remaining rights, is entitled from the moment the claim is due up to the date of complete settlement, to charge the other party over the amount invoiced an interest of 2 % per month or any part thereof.

6.2     In case of non-payment or overdue payment or non-fulfilment or overdue fulfilment of any other obligation by the other party, the other party is due to pay to Boston Retail Product in addition to the purchase price and interest, all extrajudicial collection costs and court costs caused by the non-payment or non-fulfilment. The extrajudicial collection costs are at least 15% of the amount– including aforementioned interest - due by the other party.

 

Clause 7           Delivery

7.1     Specified delivery times can only be given approximately and are not dealdlines, unless explicitly agreed otherwise in writing. Boston Group cannot be held liable towards the other party on account of default to deliver at a specific time. If the delivery does not take place within a reasonable time the other party is entitled to consequently cancel the order and reclaim payments already made.

7.2     Boston Group is obliged to observe the delivery time as best possible. However, Boston Group cannot be held liable for exceeding the delivery time if this was reasonably unforeseeable at the moment of entering into the agreement. In cases such as: fire, civil commotions, strikes, transport difficulties et cetera Boston Group is entitled in consultation with the other party to extend the delivery time or to cancel the agreement.

7.3     Except for the stipulations in the previous paragraph Boston Group can only be held liable for exceeding the delivery time after Boston Group has been given a reasonable period to fulfil its obligations and after Boston Group has been given a written notice of default.

7.4     Any damage to and/or deficiencies in the packaging and the goods delivered present at the time of delivery and/or any deviations in the number of deliveries must be stated by or on behalf of the other party on the packer’s number/delivery note. Any deviations in the number of goods contained in the packaging becoming manifest at the moment of opening these packagings, must be reported to Boston Group within eight days after delivery.

7.5     The other party is deemd to be familiar with the functioning of the item and is obliged to instruct users accordingly.

7.6     The delivery period agreed on commences on the date mentioned on the written confirmation of the order. If Boston Group has negotiated advance payment, the agreed delivery time will commence no sooner than on the day this advance payment is received by Boston Group.

7.7     Unless agreed otherwise the delivery will take place ex works, ex warehouse or other storage depot. In all cases the risk will be for the account of the other party from the moment of delivery. As the moment of delivery will be considered the moment on which the goods leave the company, warehouse or other storage depot of Boston Group.

7.8     When the goods after expiration of the delivery time have not been taken delivery of by the other party, these goods will be kept stored and available for the other party, for his own expense and risk.

 

Clause 8           Transport and risk

8.1     The method of transport, dispatch, packaging and such will if no other instructions have been made to Boston Group by the other party, be decided on by Boston Group in accordance with sound commercial practice without Boston Group bearing any liability fore this. Any specific wishes of the other party concerning the transport/dispatch will only be executed if the other party has indicated its willingness to bear these additional costs.

8.2     The transport will at all times be for the expense and risk of the other party also if a delivery free of charge has been agreed on and if the carrier has stipulated that all transport damage will be for the expense and risk of the shipper.

 

Clause 9           Complaints

9.1     All complaints must be submitted in writing to Boston Group within 14 days after receipt at the latest, stating packer's number/delivery receipt and/or invoice number and a precise description of the nature of and ground for the complaint. After this period of 14 days has expired, the other party is considered to have approved the product supplied and the invoice respectively. In that case complaints will no longer be accepted by Boston Group.

9.2     The other party is obliged to check the product supplied or the packaging immediately on delivery, or to carry out this examination after being informed by Boston Group that the products are at the other party's disposal, or to check the activities carried out immediately after the activities have been concluded.

9.3     If the complaint refers to defects that only become apparent when using the product, the complaint may be submitted within 14 days after the defect has been discovered or reasonably could have been discovered, however never later than two months after the invoice date.

9.4     Complaints can only be accepted regarding goods that are still in the same state as they were when delivered, except in case of hidden defects.

9.5     Complaints will not be accepted if the other party or a third party have altered or repaired anything in respect of the product, except if this has happened with the knowledge and permission of Boston Group.

9.6     The quality of the goods and the material used in the goods must be judged according to the rules and quality requirements applicable on the delivery date for the goods and/or material in question. Minor, regular deviations considered acceptable in the trade or technically unavoidable deviations in quality, quantity, width, colour, finish, size and such cannot be grounds for a complaint.

9.7     Only if and in so far as Boston Group finds the complaint founded, will Boston Group be obliged to fulfil its part of the agreement as yet within a reasonable period.

 

Clause 10         Guarantee

10.1      Boston Group' guarantee implies that Boston Group will remedy defects for the account of Boston Group or - at the sole discretion of Boston Group - will entirely or partly take back the product supplied and have this replaced by a new delivery. Boston Group will never be obliged to pay costs in excess of the original value of the relevant defective goods. If Boston Group replaces goods in order to comply with its guarantee obligations, the replaced (components of) goods will once again belong to Boston Group.

10.2      This guarantee does not apply if:

-   the defects are the result of improper use by the other party and/or by third parties called in by the other party, normal wear and tear or if other causes are involved than faultiness of the material or manufacturing;

-   the other party and/or third parties called in by the other party have made alterations and or repairs to the product supplied, or have had such alterations and/or repairs made, on their own initiative during the guarantee period;

-   the other party does not or not timely or not properly meet any obligation resulting from this or other agreements with Boston Group, such as for example obligations regarding (submitting within a certain period) complaints.

 

Clause 11         Retention of title

11.1      Title to the products delivered by Boston Group first passes to the Other Party after payment has been effected in full of all amounts due to Boston Group in consideration for products delivered or to be delivered to the Other Party by and/or on behalf of and/or for the account of Boston Group pursuant to any contract, and also of all amounts relating to any default in the fulfilment of such contracts. The Other Party is obliged to ensure proper receipt and treatment of such goods and is not entitled to transfer or pledge the goods, to raise money on them, move them or cause them to be moved from the location to which they were delivered until such time as full payment of the purchase price plus any supplementary costs has been made, except where such actions are necessary in the context of normal business operations.

11.2      In the event of non-payment of an outstanding amount, suspension of payments, a moratorium on payments, bankruptcy, placing under financial guardianship, liquidation or death of the Other Party, Boston Group will be entitled, without recourse to the Courts, to cancel the order or any undelivered part thereof and to reclaim the goods or work, or that part of it for which payment has not yet been received or received in full as the property of Boston Group, against offset of any amounts already paid and without prejudice to its rights to claim compensation for any loss or damage. In such cases, all amounts which Boston Group can claim from the Other Party are immediately due and payable.

11.3      If, on the grounds of circumstances described in paragraph 2 of this Article, Boston Group is entitled to retrieve its property, the Other Party is obliged to allow Boston Group or a third party nominated by Boston Group to have access to the place(s) where the goods or works subject to retention of title can be found and to offer any cooperation required in this matter.

 

Clause 12         Non-attributable shortcoming in the performance

12.1      A non-attributable shortcoming in the performance is understood to mean: a shortcoming that is not attributable to Boston Group and that cannot be attributed to Boston Group on the basis of the law, a juristic act or according to generally accepted standards. Causes for non-attributable shortcomings are: strikes or lockouts, (declaration of the state of) war or siege, mobilisation, riots, fire, transport difficulties, extreme weather conditions, government measures that prevent or hinder the performance of the agreement, including in any case import and export prohibitions, quota systems, interruptions of operations at our suppliers, and non-performance by our suppliers making it impossible for Boston Group to meet its obligations towards the other party and all other circumstances that independent of Boston Group' intentions prevent or hinder the performance of the agreement.

12.2      In case of a non-attributable shortcoming in the performance Boston Group is entitled to agree, in consultation with the other party, on a period within which performance will take place. If performance is no longer possible, the parties are entitled to consider the agreement dissolved. In this case the parties must notify one another party of this in writing; they will then not be obliged to pay any damages in so far as existing statutory provisions allow this.

12.3      Boston Group is entitled to demand payment of the performance that has been carried out within the context of the relevant agreement before a situation as referred to in this clause has become apparent.

 

Clause 13         Liability

13.1      Boston Group' liability is limited to the guarantee obligation referred to in clause 10. Therefore Boston Group cannot be held liable for - and consequently is under no circumstances obliged to pay for - direct or indirect loss of whatever nature, direct damage or indirect consequential loss, including loss of profits relating to movable property and immovable property or to persons attached to the other party and to third parties, resulting from defects to goods sold and delivered or repaired. Neither does Boston Group have an obligation to repair defects that result from natural wear and tear, improper or incorrect handling and/or excessive load unless the damage is the result of gross negligence and/or intention on the part of Boston Group.

13.2      Boston Group cannot be held liable for damage caused by or resulting from the use of the products supplied or by their unsuitability for the purpose for which the other party purchased the products.

13.3      Boston Group cannot be held liable for damage resulting from faults or negligence by third parties called in by Boston Group to deliver material or carry out activities.

13.4      Boston Group can under no circumstances be held liable for damage or defects to specific material, components or constructions that are prescribed by or on behalf of the other party in deviation from the applicable rules, or are provided by the other party.

13.5      The other party indemnifies Boston Group against any claims from third parties relating to goods supplied by Boston Group, unless it is established by law that such claims are the immediate result of major negligence on the part of Boston Group and the other party moreover shows that it is in no way to blame whatsoever.

 

Clause 14         Intellectual property rights

14.1      The Other Party guarantees to Boston Group that the performance of the Contract and more specifically that the reproduction and/or publication of the goods and/or data (such as printer’s copy, setting and printing work, models, drawings, photographs, litho’s, films, information carriers, computer software, data files, etc.) received from the Other Party, will not infringe any third party rights that could be exercised under national, supranational or international legislation or regulation in the domain of intellectual property rights and/or industrial property law. The Other Party indemnifies Boston Group, both at law and otherwise, against all claims that third parties may be able to enforce under the aforementioned legislation and regulations.

14.2      If there is any reasonable doubt as to the correctness of the rights claimed by third parties under paragraph 1 of this Article, or if such doubt remains, Boston Group is entitled to suspend performance of the Contract until such time as it has been irrevocably established under the law that, in fulfilling the Contract, Boston Group does not infringe any such right. Boston Group will subsequently fulfil the order within a reasonable period of time.

14.3      Unless otherwise expressly agreed in writing, all intellectual property rights that may relate to the works created by Boston Group in the fulfilment of the Contract, including productive assets, tools and auxiliary materials, remain vested in Boston Group even if such works are itemised separately in the offer, quotation or invoice.

14.4      The goods delivered or to be delivered by Boston Group in accordance with its own style and format (including productive assets, tools and auxiliary materials) may not be used or reproduced in the context of any production process even if or insofar as Boston Group holds no intellectual property rights or enjoys no other legal protection in respect of that style and/or format.

14.5      Unless otherwise expressly agreed in writing, on delivery of the goods by Boston Group, the Other Party will receive the non-exclusive right to use the works produced by Boston Group under the Contract. This right of use is limited to the right of normal use of the works or goods delivered, and specifically excludes the right of reproduction in connection with any production process.

 

Clause 15         Applicable law

15.1      All offers and agreements of Boston Group and the execution of such offers and agreements are subject to Dutch law.

 

Clause 16         Disputes

16.1   Any disputes, including issues which are seen as a dispute by one party only, resulting from or related to the agreement to which these conditions are applicable or the relevant conditions themselves and the interpretation or execution thereof, both of a factual and legal nature, will be decided on by the competent civil court in Rotterdam, in so far as statutory provisions allow.

 

 

 

Rotterdam, October 1 2013