1. Acceptance) The acceptance of VML's Commercial Proposal ( the "Proposal") means the acceptance of the following terms and conditions (the "General Terms and Conditions of Sale "). Unless otherwise agreed, the General Terms and Conditions of Sale shall apply to any contract and/or order of sale for VML's products (the "Product") identified and specified in the Proposal.
2. Validity) Unless previously withdrawn, VML's Proposal is open for acceptance within the period stated therein, or, when no period is stated within thirty (30) days from the date thereof.
3 Documents) 3.1 Except where intended to serve as instructions for use or advertising matter, all technical information in relation to Products, their operation and their maintenance remains VML's property and may not be utilized or copied, reproduced, transmitted or communicated to third parties without VML's written consent. 3.2 The illustrations, catalogues, colors, drawings, dimensions, statements of weight and measurements etc., made available by VML as printed information are only meant to present a general idea of the Products to which they refer; They are for reference only and therefore not binding upon VML.
4. Trade terms) 4.1 Unless otherwise agreed, the delivery term shall be Ex-Works VML's manufacturing plant. The risk will pass from VML to Purchaser no later than when the Products are handed over to the first carrier. 4.2 The latest Incoterms issued by the International Chamber of Commerce shall apply to the trade terms mentioned in VML's Proposal.
5. Prices) 5.1 The prices for Product are without engagement and may be altered by VML at any time prior to the date of dispatch. VML shall notify Purchaser on the occurrence of such price alterations. And, in case of a notification of a price increase Purchaser shall be entitled to cancel the pertaining (part of) the order/contract in writing, without cancellation charge in paragraph 17, provided such cancellation has been received by VML timely in advance of the dispatch of the Products or within seven (7) days as from the date of VML's price increase notification, whichever is the sooner. 5.2 The prices for Product shall include the cost for packaging, but do not include transportation, insurance and any additional costs of rerouting and/or surcharges which are the result of circumstances or event that are beyond VML's reasonable control such as, but not limited to, foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of materials or other costs of manufacture, rescheduling of delivery date, and those enumerated under "force Majeure" in paragraph 16 hereof. 5.3 All prices and other terms are subject to correction for typographical or clerical errors.
6. Taxes) Unless otherwise expressly agreed by the parties in writing, the prices for Product are exclusive of all duties and sales, use, excise or similar taxes that VML is required to pay or collect, under any existing or future law or regulations, whether levied by any domestic or foreign competent tax authority upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any Product covered hereby, which shall be for the account of Purchaser and shall be borne and paid by Purchaser. Any tax or duty that VML pays or is required to collect or pay upon shipment of Product will be added to the Proposald price. If such amount is not included in the Proposald price or if such amount is not included in invoice for the shipped Product, it shall be invoiced separately and Purchaser shall pay the amount thereof to VML upon receipt of said invoice pursuant to paragraph 7 of the General Terms and Conditions of Sale.
7. Payment) 7.1 The taking into operational use of the Products shall entitle VML to full and immediate payment. 7.2 Purchaser shall, unless otherwise agreed upon, pay to VML all amounts due hereunder in US dollars. 7.3 VML may require payment of a deposit on acceptance of an order. Any such deposit shall be non-refundable. 7.4 VML shall be entitled to issue separate invoices for partial shipment. 7.5 Unless agreed otherwise in a payment schedule, each payment of VML shall be due for payment by T/T without any deductions within thirty (30) days after the receipt of the invoice, or, with an irrevocable letter of credit, which shall be issued without any deduction within seven (7) days from the date of VML's order conformation. 7.6 If the payment is out of an irrevocable letter of credit to which the prevailing Uniform Customs and Practices for Documentary Credit of the International Chamber of Commerce apply, Purchaser shall arrange for the opening of the Letter of Credit by a first class bank in VML's favor, acceptable to VML. Prior to opening the aforementioned letter of credit, Purchaser shall submit a copy of application for such letter of credit to VML for its approval. 7.7 VML reserves the right to change the amount of or withdraw any credit extended to Purchaser. Amounts not paid when due shall be subject to interest at the rate of one and one half percent (1.5%) per month or, if less, the maximum rate permitted by law.
8. Test) 8.1 VML's Products are carefully inspected and, where practicable, submitted to standard tests at the factories before dispatch. 8.2 If special tests or tests in the presence of Purchaser or its representative are required, these must be specified by Purchaser when giving the order and shall, unless otherwise agreed, be made before dispatch; all costs connected with such tests will be charged extra. In the event of any delay on the part of Purchaser in attending such tests after fourteen (14) days' notice that the Products are ready to be tested, the tests will proceed in Purchaser's absence and shall be deemed to have been made in its presence. 8.3 In case of rejection of the Products for justified reasons, to be submitted to VML in details and in writing within 10 days after completion of the acceptance test concerned, VML shall as a sole remedy correct the shortcomings as soon as possible and the relevant parts of the acceptance tests shall be repeated within a reasonable period of time in conformity with the procedures outlined above. 8.4 If within ten (10) days after completion of the acceptance test VML shall not have received the acceptance certificate signed by Purchaser or a report of rejection for justified reasons, the Products shall then be considered as having been accepted by Purchaser. 8.5 Minor defects not affecting the operational use of the Products installed shall be stated in the acceptance certificate, but shall not obstruct or suspend acceptance. VML undertakes to remedy such defects as soon as possible. 8.6 VML reserves the right for minor deviations from product specifications without prior notice when necessary for manufacturing purposes and not affecting the operational use of the Products.
9. Dispatch) Full forwarding instructions must be sent with the order. The times given for dispatch are estimated and not binding; they have to be reckoned – all in accordance with the other provisions specified in VML's Proposal -from the date of VML's written confirmation of the order, or, where a Letter of Credit and/or other payment instrument has been asked for, from the date of the Bank's advice that the Letter of Credit and /or other payment instrument has been established in conformity with VML's requirements and the advance payment –if required- has been received, whichever of said dates is the later. VML reserves the right to dispatch the Products in consignments as and when they are ready for dispatch.
10. Retention of ownership and defaulting payments) 10.1 Without prejudice to the passing of the risks in accordance with the applicable trade term as described hereunder, all Products shall remain VML's property until all of VML's claims against Purchaser in relation to this General Terms and Conditions of Sale, most specifically payment, have been satisfied in full. Purchaser shall give VML any assistance in taking any measures required to protect VML's property rights. 10.2 If Purchaser fails to pay any amount when due or shall default, then, VML is entitled to full and immediate payment, failure of which allows VML or its agent, without notice to Purchaser, to enter any premises in which the Products may be found and render them inoperable or remove them, hold and sell them in accordance with the applicable law. 10.3 In the event of the bankruptcy or insolvency of Purchaser, or the filing of any proceeding by or against Purchaser under any bankruptcy, insolvency or receivership law, VML may, at its discretion and without prejudice to any other right or remedy, exercise its right stated in 10.2.
11. Complaints and returns) 11.1 Any complaints or erroneous dispatch and/or apparent damage shall be made in writing within fourteen (14) days after receipt of the Products by Purchaser giving the reason for the request to return the Products and the date and number of VML's invoice. 11.2 If return of the Products is agreed upon by VML in writing, the Products shall be forwarded in accordance with VML's instructions; all Products returned must be consigned insurance and carriage prepaid and packed in their original packing.
12. Installation) In case installation of the Products is agreed upon, Purchaser shall make the arrangements in the following provisions and all installation fees shall be born by Purchaser: 12.1 The provision of adequate and lockable storage on or near the installation site for the Products to be supplied in such a way that the Products are protected against theft and any damage or deterioration; any item lost or damaged during the storage period shall be repaired or replaced at Purchaser's cost. 12.2 The timely execution and completion of the preparatory works shall be at Purchaser's sole expense and risk, in conformity with the requirements, which VML shall indicate to Purchaser in due time; the site preparation shall be in compliance with all safety, electrical and building codes relevant to the equipment and its installation. 12.3 Sufficiency of plans and specifications of such installation, specifically including, but not limited to the accuracy of the dimensions described therein shall be Purchaser's sole responsibility. 12.4 The installation site shall be made available to VML without obstacles in due time to enable VML to start the installation work at the scheduled date; VML's installation personnel shall not be called upon the installation site until all preparatory works have been satisfactorily completed. 12.5 The availability of the Products to be delivered in due time and in proper condition at the installation site. 12.6 The timely provision free of charge of the permits, licenses, right of way etc. of the pertinent authorities required for or in connection with the installation and putting into operation of the Products to be delivered. 12.7 The timely provision of all visa, entry-, exit-, residence-, work- or any other permits necessary for VML's personnel and for the import and export of tools, equipment and materials necessary for the installation works and subsequent tests. 12,8 The availability free of charge on or near the installation site of adequate and lockable rooms for VML's personnel (equipped with sanitary installations) and for the storage of VML personnel's tools and instruments. 12.9 In case any or all of the above conditions are not properly or timely complied with, or VML has to interrupt its installation works and subsequent testing for reasons not attributable to VML, the period of completion shall be extended accordingly and any and all additional costs resulting therefrom shall be for Purchaser's account. VML neither assumes liability nor offers any warranty for the fitness or adequacy of the premises or the utilities available at the premises in which the equipment is to be installed, used or stored.
13. Guarantee) 13.1 VML guarantees to Purchaser the good quality of the Products supplied for the period stated, or when no period is stated, for a period of one (1) year as from the date on which they have been put into use, but in no event for more than eighteen months as from the date of dispatch, against all defects for failures which appear therein under proper use, and arise solely from faulty materials or workmanship. 13.2 VML's liability under this guarantee shall be to supply to Purchaser, free of charge, replacements of such parts as have proved to have such defects as set out here above or, at VML's option, reparation of such parts, provided that VML is informed by Purchaser in writing within fourteen (14) days after the defects have revealed themselves; the defective parts shall become VML's property as soon as they have been replaced. 13.3 Notwithstanding foresaid VML's liability in this paragraph, the guarantee does not cover damage sustained by normal wear and tear or any damage arising in consequence of negligence or improper manipulation on the Products or the parts thereof, or of improper storage in the event of the Products wholly or partly being stored by Purchaser previous to installation, use or resale to ultimate buyers. The guarantee shall not include any other component parts to which a specific manufacturer's guarantee applies.
14. Software) Software made available shall not become the property of Purchaser, regardless of whether it was or was not developed specifically for Purchaser. No rights to any intellectual property residing in the Products, software, documentation or any data furnished hereunder are granted except the right to use such intellectual property only in the use of said Products. Purchaser shall as licensee be granted the non-exclusive right and license to use such software in connection with the Products supplied hereunder.
15. Liability) 15.1 Compliance with VML's guarantee undertaking pursuant to paragraph 13 shall be considered to give full satisfaction to Purchaser. Any claim of Purchaser for compensation or for dissolution of the order or contract shall be excluded. Purchaser agrees that all Products purchased hereunder shall be operated exclusively by duly qualified personnel in a safe and reasonable manner in accordance with VML's written instructions and for the purpose for which the Products where intended. 15.2 VML shall only be liable for damages caused by the Products supplied, and, VML will indemnify Purchaser, up to a maximum equal to the total amount of sales value that was actually paid to VML, to the extent such damage is the direct result of proven negligence of VML. 15.3 VML shall not be liable for damages or losses other than those for which VML has expressly assumed liability as defined above and VML's liability shall in no event include any consequential or other special or indirect or punitive damages nor for any losses of whatsoever nature and howsoever arising.
16. Force majeure) 16.1 In the event of the occurrence of force majeure, VML shall be entitled to suspend delivery of the Products and/or provision of services for the duration of the prevention or delay caused by such force majeure, without being held responsible for any damage resulting therefrom to Purchaser or a third party. In that case the time given for dispatch shall be extended for the period of prevention or delay caused by such force majeure. 16.2 In case of such a non-attributable failure of performance the relevant part of the contract will be suspended. The party concerned will inform the other regarding the occurrence of such failure as soon as possible. In the event the suspension has lasted for five (5) consecutive months, or, as soon as it is established that the suspension will last at least five (5) consecutive months, VML shall be entitled to cancel the order in whole or in part without liability for any indemnity whatsoever towards Purchaser. 16.3 The expression "force majeure" shall mean circumstances or occurrences beyond VML's reasonable control (whether or not foreseeable at the time of the confirmation of the order) in consequence VML cannot reasonably be required to execute our obligations regarding the order. Such circumstances or occurrences include but are not restricted to: acts of god, war, Civil war, insurrection, fires, floods, labor disputes strikes, epidemics, governmental regulations and/or similar acts, freight embargoes, non availability of permits, licenses and/or authorization required, defaults or force majeure of suppliers or subcontractors.
17. Cancellation charges) If Purchaser shall for any reason cancel the order or contract in whole or in part, the notice of cancellation must be given in writing to VML. VML shall thereupon cease work and Purchaser shall pay VML the following: 17.1 The price provided in the order or contract for all Products which have been manufactured, modified or ordered by VML prior to the cancellation and which conform to the provisions of the order or contract. Such Products shall be delivered to Purchaser; 17.2 The actual expenditures made by VML in connection with the uncompleted portion of the order or contract, in addition to a cancellation charges of fifteen percent (15%) of the total amount of the order or contract.
18. Assignment) No party may assign any of its rights or obligations under this General Terms and Conditions of Sales without the express written consent of the other. Any assignee shall be subject to this General Terms and Conditions of Sales. This General Terms and Conditions of Sales will inure to the benefit of and be binding upon the parties, successors, administrators and assigns.
19. Governing Law and Jurisdiction) This General Terms and Conditions of Sale shall be governed by the laws of The Netherlands without reference to conflicts of laws principles. The United Nations Convention on Contracts for the international Sale of Goods shall not apply.
The parties agree and irrevocably submit their disputes arising out of this General Terms and Conditions of Sale to the exclusive jurisdiction of the court of Den Bosch, The Netherlands
Eindhoven, September 2011