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1. DEFINITIONS
Supplier: Varico B.V. and all their associated companies, including, though not limited to, Sunsit B.V., established in Vught, and Sunsit HK Limited, established in Hong Kong
Buyer: the buyer or purchaser of Supplier, being any natural or legal person who wishes to conclude or has concluded an agreement with Supplier;
Delivery: the delivery of matters, as well as the carrying out of services or activities.
2. APPLICABILITY
2.1 These general conditions are applicable to all quotations, advice, deliveries on approval, sales, deliveries, agreements, and other legal relationships established by or entered into by Supplier, and are an integral part of all agreements established between Buyer and Suppler and of all other legal relationships between these parties.
2.2 The applicability of the general conditions of Buyer is emphatically excluded, unless parties have expressly agreed otherwise in writing.
2.3 In case Supplier enters into multiple agreements with Buyer, to all subsequent agreements and legal relationships the present general conditions will always apply, regardless of whether these have in such case been emphatically declared applicable.
2.4 The invalidity of one or more of the clauses in these general conditions does not affect the validity of all remaining clauses. In case a clause in these general conditions turns out, for whatever reason, to be invalid, parties are supposed to have agreed on a substitute clause which approximates the invalid clause in substance and scope as much as possible.
2.5 Arrangements which contradict or supplement these general conditions are only valid if and to the extent they have been confirmed by Supplier in writing, and in such case only for the one-time and specifically circumscribed transaction.
2.6 The Supplier not exercising his rights in a certain case does not lead to the forfeiture of rights for a case in the future.
2.7 In case reference is made in these general conditions to the requirement of submittal in writing, this demand is also considered to have been complied with in the event matters are conducted by electronical means, and therefore also, though not exclusively, by way of an e-mail or WhatsApp.
3. OFFERS AND QUOTATIONS
3.1 General offers, (price) quotations of Supplier in catalogues, brochures, offers, and other media do not bind him and are only valid as an invitation to Buyer to make an offer, after which Supplier is at liberty to deviate from aforementioned offers. Without prejudice to the provisions in these general conditions, a quotation and proposal of other conditions are only binding for Supplier in case these have been submitted specifically in writing to Buyer, in case Buyer accepts such in writing prior to lapsing of the expiry date and Supplier sends a definitive order confirmation in response.
3.2 The sending of quotations or other similar documentation do not oblige Supplier to accept an order placed on occasion of them. Supplier reserves himself the right not to accept/carry out orders in derogation of the quotation and without statement of reasons, or to modify the conditions, including though not exclusively the condition that deliveries are to be paid on delivery or are only carried out when paid in advance.
4. AGREEMENT
4.1 Without prejudice to the provisions in these general conditions, an agreement with Supplier only becomes effective if and to the extent Supplier definitively accepts in writing an order or assignment of Buyer, or if Supplier confirms it by sending a definitive order confirmation to Buyer. The written acceptance or order confirmation of Supplier is supposed to represent the agreement correctly and completely. Buyer must immediately inform Supplier in case the representation in the order confirmation is inaccurate, in the absence of which no appeal can be made to any inaccuracies.
4.2 Additional arrangements, modifications, or pledges made by persons involved in the agreement, including personnel, suppliers, agents, representatives or other intermediaries of Supplier, only bind Supplier if Supplier has confirmed these arrangements, modifications, or pledges in writing.
4.3 In case a natural person concludes an agreement with Supplier on behalf or on account of another natural or legal person, he declares – by placing the order – to be authorised to do so. This person, besides the other natural or legal person, is severally and jointly liable for all obligations flowing from the agreement if the represented person/legal person does not comply with his obligations pursuant to the agreement from the first moment of non-compliance.
4.4 Information provided by Supplier in the context of the agreement in the form of brochures, folders, instructions for installation or use, price lists, drawings, or shipping documents, are not a part of the agreement and are not, therefore, included in Deliveries, unless it establishes otherwise.
4.5 In case of deliveries which, in derogation to the provisions in article 4.1, have been carried out pursuant to verbal agreements and for which no quotation or order confirmation was sent, the invoice will be considered as an order confirmation. It will be deemed an accurate and complete representation of the agreement.
4.6 Each agreement is entered into under the suspensive condition that the Buyer – at the sole discretion of the Supplier – proves to be sufficiently credit-worthy for the monetary fulfilment of the agreement. Supplier has the right not to commence with the implementation of the agreement in case he has reasons to suspect that the Buyer will not (be able to) settle the established price, or at least part of it.
4.7 In case a model, sample, or example is shown or provided by Supplier, it is considered to have been shown or provided as an indication exclusively: the characteristics of matters to be delivered may deviate from the sample, model, or example, unless it was indicated expressly that delivery would have been in conformity with the sample, model, or example shown or provided.
5. MODIFICATIONS
5.1 In case Buyer wishes to modify an assignment after acceptance by Supplier, he will address a written request to that effect to Supplier. Supplier is not obligated to accept the modification. Supplier can demand compliance with the established agreement from Buyer.
5.2 In case Supplier accepts modifications to the assignment, he is at liberty to increase the established price with the amount required to cover the cost and expenses related to the modifications or delays, and such at the sole discretion of Supplier.
6. PRICES
6.1 Unless agreed otherwise, all prices indicated in documentation other than the agreement are subject to price changes. Prices listed in a price list/catalogue are non-committal and are not binding for the Supplier. Orders on the basis of prices listed in a price list will be delivered by Supplier against the prices which were applicable at the moment of conclusion of the agreement, as specified in the quotation, without prejudice to the right to modify these prices pursuant to the provisions of these general conditions.
6.2 Unless agreed otherwise, the Free On Board (FOB, according to Incoterms 2010) prices referred to in the agreement/definitive orderconfirmation are:
- based on the amounts of the purchase prices, exchange rates, wages, wage costs, social security contributions, and government levies, freights, insurance premiums, and other costs applicable at the moment of quotation or ordering;
- exclusive of import duties, taxes, levies (imposed by government institutions) which will become due ex works (EXW.) until the port of shipping and which are passed on separately;
- exclusive of the costs of unloading in the port of destination and of insurance which are borne by Buyer;
- in USD ($) or EUR (€) as further specified in the agreement.
6.3 Unless agreed otherwise, the Free On Board + (FOB+) prices listed in the agreement/definitive order- confirmation are:
- based on the amounts of the purchase prices, exchange rates, wages, wage costs, social security contributions, and government levies, freights, insurance premiums, and other costs applicable at the moment of quotation or ordering;
- exclusive of import duties, taxes, levies (imposed by government institutions) which will become due ex works (EXW.) until the port of shipping and which are passed on separately;
- exclusive of the costs of unloading in the port of destination, transport to the port of arrival, transport to Buyer from the port of arrival (shipping costs) and insurance, and which are passed on separately;
- In USD ($) or EUR (€) as further specified in the agreement.
6.4 Unless agreed otherwise, the Delivered Duty Paid (DDP, according to Incoterms 2010) prices listed in the agreement are:
- based on the amounts of the purchase prices, exchange rates, wages, wage costs, social security contributions, and government levies, freights, insurance premiums, and other costs applicable at the moment of quotation or ordering;
- inclusive of import duties, taxes, levies (imposed by government institutions) which will become due ex works (EXW.)until the port of shipping and which are passed on separately;
- inclusive of the costs of unloading in the port of destination, transport to the port of arrival, transport to Buyer from the port of arrival (shipping costs) and insurance, and which are passed on separately;
- in USD ($) or EUR (€) as further specified in the agreement.
6.5 In case also though not exclusively due to changes in exchange rates, changes in government regulations, increases in prices of raw materials or for other reasons, the cost prices of the matters to be delivered after entering into the agreement are subject to changes, Supplier will have the right to increment the established prices with the same percentage as that of the increase. Supplier will accordingly inform the Buyer as soon as possible. The Buyer is obliged to settle the Cost price thus increased.
6.6 In case Buyer and Supplier have agreed on multiple deliveries in an agreement, Supplier will also have the right – besides the provisions in article 6.5 – to annually adapt his prices to inflation as applicable in the European Union (HICP) and China, whereby the highest inflation figure is valid. Any possible deflation rates are not taken into account.
6.7 Product prices are based on a fixed exchange rate (RMB/USD), established by the Supplier on 1 September of the current year. If the effective exchange rate deviates more than 3% from this determination, a price increase or price decrease respectively is applied. For shipping prices, the exchange rate (EUR/USD) on the invoice date applies.
6.8 Discounts can only be established in writing and are only valid for the specific order.
7. PAYMENT
7.1 Payments for Free On Board (+) deliveries must take place by bank transfer to the account number specified on the invoice, without any deductions or set-offs, within 8 days after invoice date, under specification of the payment reference of Supplier. Unless established otherwise, the invoice will be prepared immediately after shipping and offered to Buyer for payment.
7.2 Payment of Delivered Duty Paid deliveries must take place by bank transfer to the bank account specified on the invoice, without any deductions or set-offs, within 8 days after invoice date, under specification of the payment reference of Supplier. Unless established otherwise, the invoice will be prepared immediately after shipping and offered to Buyer for payment.
7.3 Supplier has the right at all times to demand full payment before implementing the agreement or during implementation of it, if he has grounds to suspect Buyer will not (be able to) fulfil his obligations.
7.4 The value date specified on the bank statements of Supplier is leading and will be considered the day of payment.
7.5 Buyer is never authorised for set-offs, unless Supplier has agreed to this in writing.
7.6 Objections to the amount of invoices or otherwise do not suspend the payment obligations of Buyer.
7.7 Any payment of the Buyer primarily serves to settle the interest owed by him, subsequently of the collection and administration costs incurred by Supplier, and finally will be deducted from the oldest claim due, regardless of whether upon payment it is expressly indicated otherwise or not.
7.8 The payment term specified on the invoice must be considered a strict time limit. In case this term is overrun Buyer will be considered legally in default, without requirement of any further notice. In such case, all claims of Supplier on Buyer will become payable with immediate effect.
7.9 In case the Buyer has fallen in default with regard to any payment obligation towards Supplier, he will owe an interest of 15% annually, whereby interest on interest will be applicable.
7.10 In case of default, the Buyer will also owe Supplier all judicial and extrajudicial costs which Supplier must incur to collect the claim.
7.11 In case, for whatever reason, Supplier grants Buyer postponement on the fulfilment of any performance, the new term will always be fatal in character.
8. SUSPENSION AND RESCISSION
8.1 In case Buyer does not, does not timely, or does not adequately comply with one or more of his (payment) obligations towards Supplier, Supplier will be authorised, besides regarding the other means referred to in these general conditions, including demanding compliance, to demand to partially or completely rescind the agreement as well as other related agreements with immediate effect and without judicial intervention, or alternatively to suspend compliance with the obligations of the Supplier pursuant to the agreement until full payment has taken place.
8.2 Under the circumstances described under point 8.2 Buyer is also liable for all damage which Supplier incurs because the latter completely or partially rescinds the agreement, or suspends fulfilment of the obligations.
8.3 Supplier is furthermore authorised to suspend fulfilment of his obligations, or to partially or completely rescind the agreement with immediate effect and without judicial intervention in case Buyer:
a) Is declared bankrupt, or an application to that effect has been filed, suspension of payment is requested, files a request for deferment of payment or for application of the legal arrangement for debt restructuring, as well as in the event part or the entirety of his assets is seized;
b) Proposes an arrangement to his creditors;
c) Dies or is placed under garnishment;
d) Ceases or transfers his business or an important part of it, including the event he transfers his business to a company or partnership which already exists or is to be founded, or changes the objective of the business, or proceeds to liquidate his business;
e) Or otherwise proves to be insolvent.
8.4 In case one or more of the circumstances referred to in sections 1 and 3 transpire, all claims of Supplier on Buyer, as well as the intended claim on account of the relevant agreement(s) pursuant to the provisions in article 7.8 become immediately and entirely payable and/or Supplier becomes entitled to take back the relevant matters, in case already delivered. In such case Supplier and his authorised representative will have the right to enter the premises and buildings of Buyer with the purpose of repossessing the relevant matters.
9. DELIVERY
9.1 Supplier has the right to deliver in batches. For every partial delivery, a separate agreement is considered to have been concluded with Buyer, so that each partial delivery can be invoiced separately.
9.2 Established delivery terms are not binding but strictly indicative. An indicated delivery term never is, therefore, a fatal time limit, unless established otherwise in writing.
9.3 In case Supplier requires information from Buyer within the framework of the implementation of the agreement, the delivery term commences after Buyer has made it available to Supplier.
9.4 If, on request of Buyer and with the cooperation of Supplier, the Delivery is postponed, expedited or cancelled before it has been paid or delivered, Supplier will have the right to charge all costs and damage incurred by him as a result of this circumstance to Buyer.
9.5 Buyer is obligated to accept the matters which are the object of the agreement at the moment of Delivery and/or drop-off. If Buyer does not accept matters which are to be delivered by Supplier, the matters will be stored at the former’s expense and risk. In case Buyer has not picked up the matters within two weeks at his own expense, Supplier will have the right to sell the matters to third parties and to hold accountable the original Buyer for any possible losses. In case Buyer refuses to purchase matters ordered by or manufactured in conformity with his specific requirements, Buyer will owe a fixed compensation of damages amounting to 30% of the net invoice value of those matters. The original Buyer is bound at all times to compensate the cost of the aforementioned storage and the (additional) shipping and administration expenses incurred by Supplier.
9.6 Matters accepted after Delivery may only be returned without a valid reason if Supplier has granted his emphatic prior permission for it in writing.
10. RISK/TRANSPORT
10.1 The risk of loss and damage of the matters is transferred to Buyer at the moment the matters have been loaded on the port of departure in case of a Free On Board (+) delivery. Any type of damage occurring after this moment will be borne exclusively by Buyer.
10.2 The risk of loss and damage of the matters is transferred to Buyer at the moment the matters have been delivered to the Buyer in the event of a Delivered Duty Paid.
11 RETENTION OF PROPERTY
11.1 In derogation of the Free on Board and Delivered Duty Paid regulations in the Incoterms 2010, Supplier reserves himself the property of all matters (to be) delivered to Buyer pursuant to the agreement until total fulfilment of the compensation by Buyer, including any possible claims on account of damage, has taken place. After payment, Buyer will immediately acquire legal property of the delivered matters.
11.2 For as long as the Buyer is not the proprietor yet of the matter delivered by Supplier, Buyer only has the right to dispose of these matters in the context of the regular execution of his business. The matters delivered under retention of property cannot serve for a security in whatever form (including pledges) for claims by third parties.
11.3 In the event Supplier wants to exercise his property rights as indicated in this article because payment has not taken place (on time), Buyer presently grants Supplier or a third party to be designated by him irrevocable permission already to enter all those places where the property of Supplier is located with the purpose of enabling him to take possession of them. The Buyer must give his full cooperation to this purpose on pain of incurring an immediately payable fine of EUR 500 per day or part of a day that cooperation is not granted.
11.4 The Buyer is bound to store the matters delivered under retention of property with due diligence and identifiable as the property of Supplier. The Buyer is obligated to insure the matters for the duration of the retention of property against damage due to fire, explosion and water, as well as against theft, and to offer for perusal the policies of these insurances to supplier upon the latter’s first request. All claims of Buyer on the insurers of the matters on account of the policies referred to will be pledged to him by the Buyer, as soon as Supplier indicates to want this, as a further security for the claims of Supplier on the Buyer. The Buyer commits himself to immediately give his cooperation to this pledging upon request by Supplier.
12 INVESTIGATION AND DEFECTS
12.1 Buyer is obligated to (let) investigate the delivered matters at the moment of delivery and/or drop-off. The Buyer must thereby investigate whether the quality and quantity of the delivered matters corresponds with what was agreed on. Defects, shortcomings, damage, and deviations must be noted on the waybill/packing slip, be forthwith reported telephonically and within two days after delivery in writing to Supplier, in the absence of which the soundness of the delivered matters has been established.
12.2 Damage, deviations, or defects which could not reasonably have been discovered upon delivery must be reported within fourteen days after reception of the goods, but in any case within thirty days after the 31st of August of the calendar year of the delivery, to the Supplier in writing by way of submittal of the standard damage registration form including pictures of the deviation. In case of missing goods or of goods that were not ordered, buyer must attach the waybill and/or packing list on which the errors have been indicated to the above-intended letter. After expiry of the term of fourteen days, buyer is considered to have approved the delivered matters and to have accepted the possible presence of the defects intended here.
12.3 Inaccuracies in the invoice must be reported in writing within fourteen days after invoice date, after which no appeal can be made any longer to the inaccuracies by Buyer.
12.4 In case of visibly present defects of matters and of missing or non-ordered goods of which Supplier decides that they will be at the expense and risk of Supplier, the latter will have the choice to replace, deliver, repair, or to recover those matters against the crediting of Buyer. Supplier only accepts returned matters if and to the extent he has previously approved their reshipping, and if the matters are delivered to the address indicated by Supplier in their original packaging, and in the state in which Supplier delivered these matters to Buyer. The cost of (dis)mounting are borne by Buyer. Buyer will not have any other rights in the matter.
12.5 In case the matters are modified in nature and/or composition, are entirely or partially damaged or repackaged, the right of the Buyer will lapse to the extent it regards claims on account of defects to the delivered matters.
12.6 Minor deviations and differences as are customary in the sector or technically inevitable, including the deviations below, are accepted by Buyer:
- Deviations in quality, colour, weight, finishing, and dimensions inferior to 10%;
- Natural colours, lines, bumps, dents, and hairline cracks in wood;
12.7 Complaints with regard to matters belonging to a partial delivery do not affect previous and following partial deliveries which are a part of the same order.
12.8 The exercise of any rights on grounds of this article 13 do not liberate Buyer of his payment obligations towards Supplier. These must be complied with fully.
13 WARRANTY
13.1. Supplier gives a warranty with regard to the regular usability by the consumer (first consumer buyer) for the matters delivered by him amounting to 60 months, counting from the day of purchase. The Buyer will provide aforementioned warranty to the consumer. In the event of manufacturing defects which manifest themselves before sale to the consumer, a warranty term of 24 months applies, effective from the date of Delivery to Buyer (day of delivery is the day of shipping from the country of provenance). The warranty for both dealer and consumer is limited to manufacturing defects and does not cover damage due to general wear, improper and inexpert use, maintenance, the corrosion of steel parts, damage due to commercial use, non-observance of installation and maintenance instructions, and due to storage and transport. Matters reduced in price fall outside the warranty.
13.2 In cases of consumer warranty, Supplier will have the choice for matters of which it has been established that they were no longer usable within the term specified in article 13.1, to substitute or repair them or to take them back against crediting Buyer. In cases of dealer warranty – as described in article 13.1 – Supplier may also choose to credit the purchase price with 2% if it regards, in the opinion of Supplier, an acceptable deviation. Buyer has no rights other than those specified above. In case use is made of the option to substitute or repair, no new warranty term will commence – both in the event of a consumer warranty and in that of a dealer warranty – but the remaining term of the warranty under which the claim was made will apply.
13.3 Claims of Buyer on grounds of this article are only valid after handing in the original invoice of the final buyer/consumer and will not affect his payment obligation towards Supplier.
13.4 The shipping of matters for which an appeal is made to the warranty takes place at the expense and risk of Buyer, and after prior consultation with Supplier.
13.5 The Supplier will evaluate a warranty claim. In case the Supplier rejects a warranty claim, Buyer will be bound by it and Supplier will have no obligations towards Buyer, unless Supplier has agreed otherwise with Buyer.
13.6 In case Buyer has not, has not adequately, or has not timely complied with any obligation pursuant to the agreement(s) concluded with Supplier, the latter will not be bound by the warranty.
14 LIABILITY
14.1 In case of a shortcoming, Supplier will only be bound to comply with the provisions in these general conditions.
14.2 Without prejudice to the provisions in article 14.1, Supplier is never liable for damage of whatever kind, whether direct or indirect, including in any case, though not exclusively, business damage, loss of profit, damage to immovable or movable goods, or to persons, incurred by either the counterparty or by third parties, in connection with the matters delivered by Supplier.
14.3 To the extent any limitation to liability in these general conditions lack effectiveness, Supplier is only obligated to compensate such damage as was insured by him and never in excess of the amount which was paid out in the relevant event by this insurance. To the extent Supplier cannot appeal to the aforementioned limitation, Supplier is never liable for more than the invoice amount of the order, or at least for that part of the order which the liability is in regard to.
14.4 In accordance with the provisions in article 14.1 Supplier is not liable for damage, of whatever nature, which has occurred because Supplier (contractor) based himself on inaccurate and/or incomplete information provided by or on behalf of Buyer.
14.5 Buyer guarantees that the matters as well as the manuals are compliant with legislation of the country in which he sells the matters purchased from Supplier, including safety standards. Supplier does not accept any liability in the matter and Buyer safeguards Supplier for the event that Supplier is held accountable by a third party in the above context.
15 FORCE MAJEURE
15.1 Supplier has the right to suspend the fulfilment of his contractual obligations towards Buyer in case he is prevented by a situation of force majeure from doing so.
15.2 Intended by force majeure is, amongst other things, the circumstance in which suppliers, sub-contractors of Supplier or forwarders deployed by Supplier do not, or not timely, fulfil their obligations, weather conditions, earthquakes, fire, power failures, loss, theft or the loss of tools or material, road blocks, strikes or work interruptions and import or trade restrictions. Intended by force majeure is furthermore what legislation and jurisprudence describe as such, and in addition all external causes, foreseen or not, on which Supplier cannot exert any influence, but which render it impossible for Supplier to fulfil his obligations. Work strikes at the company of Supplier, excessive absenteeism of the staff of Supplier, government interventions including import and export prohibitions, postal strikes, traffic jams, power outages and stagnation in the deliveries by suppliers are included here.
15.3 To the extent Supplier at the time of the force majeure occurring has in the meantime partially fulfilled his obligations pursuant to the agreement or would be able to do so and to the part already fulfilled or to be fulfilled respectively an independent value can be attributed, Supplier will have the right to invoice the part already fulfilled or to be fulfilled separately. Buyer is obligated to settle this invoice as if it were part of a separate agreement.
16 INTELLECTUAL PROPERTY
16.1. The delivered matters may only be traded by Buyer under the brand name of Supplier. All rights of intellectual property with regard to matters delivered by Supplier – including the brand Suns – fall exclusively to Supplier. Buyer only has the right to use pictures of the brand and the products for the promotion of the matters delivered by Supplier Koper. Supplier has the right to give indications regarding this use. These indications must be followed by Buyer.
16.2. Supplier is of the opinion, and in good faith, that his goods and his brand do not violate any third-party rights. If a third party indicates to Buyer that the brand and/or the goods constitute an infringement on his rights, Buyer will immediately inform Supplier accordingly and will leave the defence to Supplier. Buyer will not take any actions to damage the position of Supplier and will strictly follow the instructions of Supplier.
16.3. From the moment a third party holds that the goods/brand of Supplier constitute an infringement on his rights, Supplier has the right to immediately recover the matters or to replace the brand by another one or none at all. In such case, Buyer will be credited for the purchase prices of the delivered goods. Supplier otherwise does not accept any liability in the matter.
17 APPLICABLE LAW
17.1 Netherlands legislation is applicable, to the exclusion of the applicability of relevant rules of international civil law.
17.2 The Vienna commercial treaty (C.I.S.G.) is not applicable, nor any other international arrangement which can be excluded.
17.3 With regard to the interpretation of international commercial terms, the Incoterms 2010, as composed by the international Chamber of Commerce in Paris are applicable to the extent these general conditions do not deviate from them.
18 DISPUTES
18.1 Disputes which result from these general conditions and the legal relationships which they apply to will only be judged on by the Netherlands court in the district of Oost Brabant. Supplier will retain the authority, however, to summon the Buyer to appear before the legally competent court.
18.2 A dispute is considered to pertain as soon as one of the parties declares as much. If and to the extent a dispute exists regarding the interpretation of the present conditions of Supplier, the Dutch version of them will be decisive for the settlement of it.
18.3 Sentences as pronounced on grounds of article 17.1 are enforceable in countries where Buyer has domicile and engages in business. Buyer will in no way oppose the execution of a sentence by the court which is competent pursuant to these general conditions, including regarding the obtainment of an exequatur in the aforementioned territories.