General Terms & Conditions of Vimexa Automotive B.V. - The Netherlands

Article 1 – Definitions / General

1. In the General Terms & Conditions of Vimexa Automotive B.V., the terms below shall have the following meanings:

-          Supplier; Vimexa Automotive B.V. (Vimexa); referring to these General Terms & Conditions in its communication, website, webshop, offers and contracts and applies them to its transactions.

-          Customer; the party / buyer (not being a consumer) to which Vimexa has sent an offer and / or has engaged Vimexa to provide services or deliver goods.

2. The terms and conditions shall apply to the formation, substance and performance of all contracts concluded between Vimexa and the Customer for the delivery of goods and / or the provision of services by Vimexa.

3. Any purchase or other conditions of the Customer shall not apply, unless this has been expressly agreed in writing.

Article 2 – Quotes and Contract

1. All offers and quotes from Vimexa shall be free of obligation.
2. The prices quoted, in Euro currency, by Vimexa shall apply to delivery ex warehouse or Free on Board (FOB) of the port of departure, unless otherwise agreed in writing. The prices quoted shall be exclusive of Value Added Tax and any other government levies, unless otherwise agreed in writing. Additional costs of packaging and special services related to loading of the goods etc, are not included in the quote and shall be charged separately by Vimexa.
3. Unless a purchase is paid for in cash, a contract between Vimexa and a Customer shall not be concluded until Vimexa has acknowledged the order in writing or has started with its delivery.
4. Changes in prices due to, for example, changes in factory or importer’s prices and / or exchange rates may be incorporated into the selling price. If any changes in prices occur within three months or conclusion of the contract, the Customer shall be entitled to dissolve the contract within one week of receipt of the notice of change. Any changes in the prices occurring over a delivery period exceeding three months shall not entitle the Customer to dissolve the contract.
5. Any statutory changes in prices, such as taxes and duties levied by the government, shall not entitle the Customer to dissolve the contract.

Article 3 – Loading / Delivery and Delivery period

1. The loading or delivery dates and other dates stated by Vimexa shall always be indicative and can under no circumstances be regarded as deadlines within the meaning of Section 6:83, subsection of the Netherlands Civil Code, unless expressly otherwise agreed in writing. If the expected loading / delivery date is exceeded, the Customer may give Vimexa notice of default by registered letter, affording Vimexa a reasonable period of time within which to fulfil its obligation (s) without assuming liability for damages. A reasonable period of time shall be a period of two months after expiry of the delivery date stated.
2. Goods and / or services shall be deemed to have been provided as soon as goods are ready to be collected from or delivered by Vimexa and / or the activities to be performed as part of the services have been completed.
3. The Customer shall be obligated to accept any deliveries made earlier than specified by Vimexa. Vimexa may effect partial deliveries and invoice the Customer separately therefor. Partial deliveries cannot be undone if it appears afterwards that the order cannot be delivered in full.

Article 4 – Force Majeure

1. In addition to its definitions in law and case law, force majeure shall be understood to mean any extern causes beyond the control of Vimexa that prevent the regular performance of an obligation, irrespective of whether such a cause could have been foreseen at the time the contract was concluded. Such causes shall include strikes, a general lack of raw materials, unforeseeable delays at suppliers or other third parties that Vimexa depends on, government measures, general power supply failures and general transport problems.
2. Vimexa may also invoke force majeure if the circumstance preventing (continued) performance commences after Vimexa should have fulfilled its obligation.
3. In the event of prolonged force majeure, Vimexa shall be entitled to declare the contract dissolved in writing without assuming liability for damages.
4. During the period or temporary force majeure, Vimexa’s delivery time and other obligations shall be suspended without judicial intervention and the delivery period shall be extended by the same period. If the period of force majeure continues for more than three months, either party shall be entitled to dissolve the contract with due regard for the provisions set forth in Article 4e, without assuming liability to pay the other party damages.
5. If Vimexa has already fulfilled part of its obligations or is only able to perform its obligations partially at the time the force majeure commences, Vimexa may invoice separately for the portion already delivered or deliver the relevant portion and send an invoice for it. The preceding provision shall not apply in the portion already delivered or yet to be delivered has no independent value.

Article 5 – Risk, Retention of Title and Right of Retention

1. The Customer shall bear the risk of any and all damage sustained or caused by the goods and / or services provided as from the moment of delivery. The party responsible for organising transport shall bear said risk as from the moment at which the transport commences, and shall be obligated to take out adequate insurance for said risk.
2. The Customer shall be obligated to insure the goods delivered against the customary risks under standard conditions with a reputable insurance company, and to keep them so insured from the moment of delivery until the time of full payment.
3. All goods delivered and yet to be delivered under a specific contract shall remain the exclusive property of Vimexa until has paid all sums it owes or will owe Vimexa, including interest and costs as referred to in Section 3:92, subsection 2 of the Netherlands Civil Code. This means that the paid goods shall not become Customer’s property until the Customer has settled all sums due to Vimexa, including invoices other than those sent for the goods present.
4. If the Customer fails to pay on time, Vimexa shall be entitled, without notice of default of judicial intervention being required and without assuming liability for damages, to dissolve the purchase contract and repossess the goods delivered, to which the Customer shall grant Vimexa free access.
5. As long as the ownership of the goods delivered has not passed to the Customer, the latter may not pledge the goods or encumber them with any other security rights. The Customer shall be allowed to dispose of goods from Vimexa in the course of its normal business operations.
6. Goods that are present on the Customer’s premises and are listed in Vimexa’s product range shall be deemed to have come from Vimexa, unless the Customer proves that the goods come from a different source (subject to proof of contrary).
7. Until the Customer has paid Vimexa all sums due under a contract, Vimexa may keep the Customer’s goods in its possession and recover the sum due therefrom, unless the Customer has provided sufficient security for its debt.

Article 6 – Payment

1. Unless agreed otherwise in writing, all deliveries shall be made on prepayment or cash against documents, including deposit paid by ordering, in Euro currency by bank transfer to Vimexa account (ABN AMRO). Remaining balance, in case of cash against documents, will be paid by latest 7 days before arrival to the destination port or delivery address of the Customer.
2. All costs associated with the payment shall be borne by the Customer. Payments shall first be applied to settle the costs, then the interest due and finally the principal and current interest. If the principal consists of multiple invoices, the payment shall be allocated to the longest outstanding invoice or invoices, regardless of the invoice numbers that the Customer allocates to the payment.
3. If the Customer fails to pay by the due date, the Customer shall be in default without further notice being required and shall owe 1% interest on the principal per month or part of a month. If the statutory interest under Section 6:119 of the Netherlands Civil Code should be higher, the Customer shall owe this statutory interest.
4. If the Customer defaults on fulfilling its payment obligations, all costs reasonably incurred by Vimexa to effect settlement out of court shall be charged to the Customer. The extrajudicial collection charges are set at 15% of the principal, unless the Customer demonstrates that Vimexa has incurred less damages.
5. If Vimexa demands payment in court or otherwise demands performance of the contract in court and Vimexa wins its case in whole or in part, the Customer shall be obligated to pay all costs actually incurred by Vimexa in connection with the legal proceedings, such as costs of legal assistance, attachment and court registry fees.

Article 7 – Conformity

1. Vimexa shall perform the contract to the best of its ability and understanding, in accordance with the requirements of good workmanship. The Customer shall be obligated to examine as soon as possible after delivery whether Vimexa has duly complied with the contract and to notify Vimexa in writing within a reasonable period of time, within 7 working days after delivery of the latest, if the latter’s performance should be found inadequate (due date). If notification is not reasonably possible within this period, the deadline shall be 7 days working days from the moment the defect is detected or could have been detected.
2. Complaints shall not entitle the Customer to postpone any payments.
3. If a complaint is lodged on time as referred to in Article 7, paragraph a, the Customer shall allow Vimexa to verify the validity of the complaint. If the complaint is valid, the Customer shall give Vimexa a reasonable period of time to repair or replace the service or item provided.
4. The parties shall also deem the performance of the contract to be satisfactory if the Customer has failed to effect the verification or notification referred to in Article 7a on time. By signing for correct receipt on delivery, the Customer shall waive the right to lodge any complaints regarding quantity and visible damage to the goods received. No rights can be derived from apparent misprints or typographical errors in catalogues or price lists.
5. Vimexa shall guarantee both the soundness of the goods delivered in relation to their price and the quality of the services provided, expect if:

-          The Customer does not follow the instructions or regulations given by Vimexa or its supplier

-          They are not used normally

-          Defects are the result of normal wear and tear or normal use

-          An item is installed, repaired or altered by a third party at the Customer’s behest

-          A government regulation dictates the nature or quality of the materials used

-          The Customer supplies materials or goods to Vimexa for processing

-          Materials, goods or working methods have been employed on the Customers’ express instructions

6. If Vimexa replaces any goods pursuant to the provisions of Article 7c or 7e, these items shall become its property. If the Customer has already put the items into use, Vimexa shall be entitled to charge the Customer a fee relative to the period during which the items in question were used by the Customer or a third party and this fee shall be in the same proportion to the purchase price as the period of use to the normal life span of the items.

Article 8 – Liability

1. Vimexa’s total liability shall be limited to repair, replacement or revocation of the contract. Vimexa shall not be liable for any other compensation (no compensation for consequential loss). The Customer shall be responsible for claims to guarantees provided by third parties (manufacturer or importer).
2. Vimexa, its subordinates and third parties engaged by it shall not be liable for damage to people, items or the business of the Customer and / or third parties resulting from defects in the goods and / or services provided by Vimexa, except in the event of intent or wilful recklessness.
3. The Customer shall indemnify Vimexa against third-party claims resulting from a shortcoming in the goods or services provided.
4. In addition, Vimexa’s liability shall be limited to the amount paid out by the insurance company in so far as such liability is covered by the insurance taken out. If the insurance should not provide cover or if the insurance company refuses to pay, Vimexa’s liability shall be limited to the invoice value of the relevant item and / or services.
5. In the event of any damage caused by a defect in an item delivered by Vimexa which was neither produced nor imported into the European Union by the same, Vimexa shall undertake to inform the Customer within a reasonable term of the address of the supplier, producer or importer in the EU. If Vimexa is not or no longer able to do so or if it has produced the item or imported it into the European itself, its liability shall not exceed its statutory obligations (pursuant to Sections 185 – 193 of Book 6 of the Netherlands Civil Code) and its obligations pursuant to the provisions of Article 8, paragraph a.

Article 9 – Suspension and Dissolution

1. Vimexa shall be authorised to suspend the fulfilment of its obligations or to dissolve the contract without assuming liability for damages if:

-          The Customer fails to fulfil its obligations under the contract or fails to do so on time or in full

-          After conclusion of the contract, Vimexa has reason to believe that the Customer will not be able to fulfil its obligations or to do so on time or in full

-          On conclusion of the contract, the Customer is obligated to provide sufficient security for fulfilment but fails to do so or, in Vimexa’s opinion, provides insufficient security

-          Such unforeseeable circumstances occur that the Customer is unable to perform the contract, such as in the event of insolvency on the part of the Customer or if the unforeseeable circumstances are such that an unamended continuation of the contract cannot be required of the parties by standards of reasonableness and fairness.

-          If the contract is dissolved, all amounts receivable from the Customer shall become immediately exigible and Vimexa shall retain its claim to damages.

Article 10 – Applicable Law and Disputes

1. All contracts and communication concluded with Vimexa shall be governed by Netherlands law. Applicability of the CISG of the Vienna Sales Convention is expressly excluded.
2. Any disputes ensuing from contracts with Vimexa shall be brought before a Dutch Court in the district Breda, The Netherlands, where Vimexa has its registered office, unless statutory regulations dictate otherwise.