General Terms and Conditions of Sale and Delivery of Vycap B.V.
These general terms have been registered at the District Court of Almelo under number 23/2019
Article 1: Definitions
Paragraph 1
In these general terms and conditions the following terms are taken to mean:
– VyCAP: the private company VyCAP B.V., with its registered office in Enschede;
– Buyer: the other party of the Supplier, who buys the goods and services set out in paragraph 2 of this article.
Paragraph 2
Wherever these general terms and conditions refer to goods, they include both the items and the services to be supplied by the Supplier.
Paragraph 3
Where in these general terms and conditions or in the agreement concluded between VyCAP and the Buyer refer to an internationally defined stipulation, such stipulation must be interpreted within the meaning of the lncoterms 2010, published by the International Chamber of Commerce.
Article 2: Applicability
Paragraph 1
Unless agreed otherwise in writing, these general terms and conditions shall apply to all agreements between VyCAP and the Buyer.
Paragraph 2
The above paragraph also applies to (further or additional) agreements between VyCAP and the Buyer whereby the applicability of these general terms and conditions is not explicitly invoked any further.
Paragraph 3
The applicability of any general delivery conditions used by the Buyer is explicitly dismissed, which dismissal is accepted by the Buyer by accepting these terms and conditions. This explicitly means that any divergent term or condition regarding Buyer’s purchasing terms and conditions, also by acceptation of the order, will never become part of the agreement.
Article 3: Offers
Paragraph 1
Any offers of whatever kind, shall not be binding to VyCAP, unless these offers contain a term of acceptance and are based on delivery under normal circumstances and during regular office hours.
Paragraph 2
In the event an offer without obligation is accepted, VyCAP shall have the right to revoke the offer within two days of receipt of the acceptance.
Paragraph 3
Illustrations, catalogues, drawings and any other information supplied by VyCAP shall be subject to change without prior notice and shall not be binding upon VyCAP.
Paragraph 4
Unless expressly agreed otherwise, VyCAP shall reserve the copyright on designs, illustrations and drawings, sketches, offers and further information supplied by VyCAP. The Buyer shall not duplicate or make public any of the information it receives from VyCAP as referred to in the previous sentence without VyCAP’s prior approval.
Paragraph 5
Drawings, illustrations, catalogues and any other information supplied by VyCAP shall always remain the property of VyCAP.
Paragraph 6
An agreement shall first come into effect after the order given by the Buyer has been confirmed in writing by VyCAP.
Paragraph 7
Agreements with or pledges from VyCAP representatives or subordinates shall not be binding upon VyCAP, unless these agreements or pledges are confirmed in writing by VyCAP.
Article 4: Nature and scope of the agreement
Paragraph 1
The order confirmation, or, in its absence, the offer, shall be binding upon VyCAP for the scope and nature of the agreement.
Paragraph 2
The agreement shall cover only the delivery of goods and services that have been expressly agreed upon.
Paragraph 3
VyCAP shall not be bound by any deviation from or addition to the scope and nature of the Agreement as described in the order confirmation, or, in its absence, VyCAP’s offer or as otherwise agreed on initially, unless explicitly agreed in writing between the parties, or if VyCAP has confirmed its acceptance of such deviation or addition by actually executing such change or addition towards the Buyer. If a deviation or addition to the scope and nature of the agreement is agreed on, the Supplier is entitled to adjust the agreed price, delivery method and delivery time, as well as other elements of the agreement in accordance with the agreed changes. If such addition or deviation leads to a longer delivery period, the Supplier will never be liable for penalties and/or losses caused by the delivery period being exceeded.
Paragraph 4
VyCAP shall continuously strive to improve its products and product characteristics or adapt them in line with the latest insights. However, VyCAP shall not be under any obligation to inform the Buyer of these adaptations and similarly the Buyer shall not be entitled to claim, free of charge, a change of, to or in the goods supplied vis-à-vis previously supplied goods by VyCAP, in order to comply with compatibility requirements.
Paragraph 5
The Buyer shall supply VyCAP in advance with a detailed specification of the technical standards which the goods to be supplied by VyCAP must meet in order to be compatible with the Buyer’s infrastructure, equipment and/or other provisions. The same applies if, in the event of recurrent deliveries, there is a change in the Buyer’s infrastructure, equipment and/or provisions which requires a change in the technical specifications. The Buyer shall hold full responsibility for the obligations referred to in the previous two sentences. Any changes to goods supplied or to be supplied by VyCAP shall be entirely for the account of the Buyer.
Article 5: Price
Paragraph 1
Unless expressly agreed otherwise in writing, the prices listed by VyCAP shall be based on delivery ex factory, warehouse or any other depot, and exclusive of value-added tax, import duties or any other taxes, levies or duties and exclusive of the cost of loading and unloading, transport and insurance. These costs shall be for the account of the Buyer. VyCAP shall not recognize any exemption from any tax or levy, unless the Buyer can provide VyCAP with a valid exemption certificate for the tax in question.
Paragraph 2
The price or prices quoted in the offer shall be based on cost-determining factors in force at such time. In the event of a change in the prices of (raw) materials, equipment, electricity, wages, social premiums, taxes and/or any other cost-determining factors, including a change in the prices VyCAP is charged by its own suppliers, in the period between the offer date and the delivery date, VyCAP shall be entitled to change the offered and/or agreed prices accordingly.
Paragraph 3
The prices quoted in the offer shall be based on the delivery of goods that meet the relevant statutory regulations or any other government measures in force in the Netherlands. The adaptation of the goods to be delivered in order to meet any additional requirements in the Buyer’s home country shall not be included in the offer and the ensuing additional costs shall be for the account of the Buyer.
Paragraph 4
Unless agreed otherwise in writing, the prices quoted by VyCAP shall be in EURO (EUR). The currency exchange risk shall be for the account of the Buyer.
Paragraph 5
lf the price is quoted in a currency other than EURO, the equivalent amount in EURO at the time of payment shall not be lower than the equivalent amount in EURO at the time the agreement took effect.
Paragraph 6
AII goods ordered from VyCAP by or on behalf of the Buyer which VyCAP has supplied and/or has added outside the originally agreed amount and/or type of material to be used, or has delivered outside the originally agreed work, shall be charged as extra work.
Article 6: Cancellation
In the event the Buyer unilaterally cancels an order which has been accepted by VyCAP, the Buyer shall pay VyCAP an amount of 25% of the agreed and/or owed principal sum to cover the loss of profit, without prejudice to VyCAP’s right to instead claim compliance and/or compensation for the actual damage suffered.
Article 7: Assembly and Installation
Paragraph 1
Unless agreed otherwise in writing, the Buyer shall be solely responsible for the acceptance, installation, use and maintenance of all goods which form part of the agreement between the two parties; VyCAP shall not have any obligation in this respect.
Paragraph 2
lf expressly agreed in writing, the goods delivered shall be installed by engineers employed by VyCAP, VyCAP distributors or one of its suppliers. The costs for said assembly and instalment are included in the price agreed by parties.
Paragraph 3
The staff responsible for the assembly and installation shall limit themselves to the goods supplied by VyCAP and/or the goods included in the order. VyCAP shall not be liable for any assembly work carried out outside the order.
Paragraph 4
If any assembly and installation activities have been agreed, the Buyer shall ensure that extra employees are available and that the rooms where the works are carried out and the goods are to be installed are cleared in time. If the Buyer fails to do so, all costs incurred shall be for the account of the Buyer. In the event VyCAP is forced by circumstances outside its control to stop the assembly and installation work or if its work is delayed in any other way, VyCAP shall be entitled to charge the Buyer the resulting extra costs at the standard rate.
Paragraph 5
The Buyer shall ensure that staff shall be present at the agreed time to receive instructions.
Paragraph 6
No complaints or claims regarding the execution of the assembly and installation works or their duration shall be considered once the staff have left the premises.
Paragraph 7
The Buyer shall provide the necessary power, heating and light for the duration of the assembly.
Paragraph 8
The Buyer shall ensure for its own risk and account that:
- all documents, information, permits, etcetera are obtained for the execution of the order. In the event VyCAP is required to supply documents and/or certificates with the goods supplied by it for the Buyer on account of any government stipulations in the Netherlands or abroad, the Buyer shall specify these in the delivery order. Without prejudice to the relevant provisions in these general terms and conditions, VyCAP shall never be liable for damages suffered by the Buyer as a result of failure to deliver or deliver in good time the above- mentioned documents if the individual delivery orders do not explicitly and carefully specify the need for and a detailed description of those documents;
- access roads to the place of installation are suitable for transport;
- the assigned building site is suitable for storage and assembly;
- there are sufficient secure storage rooms for material tools and other goods;
- all necessary and regular assistant workers, tools, equipment and producers’ goods are available to VyCAP in good time, free of charge and in the right place;
- all necessary safety precautions and any other precautions have been taken and are maintained;
- at the start of and during the assembly the delivered goods are available in the right place.
Paragraph 9
In case VyCAP products have to be integrated into a system, the responsibility for the delivery of the system shall lie with the supplier of the system and the counter party or any other (legal) person who makes use of the system, and who as the principal shall hold the supplier of the system responsible. VyCAP shall not start the installation until the supplier of the system has confirmed the delivery of the system in writing. Any (extra) costs ensuing from a system that has not been delivered or is faulty shall be for the account of the Buyer. VyCAP shall not accept responsibility and/or guarantee the goods it supplies if the system is of a poor quality. Similarly, VyCAP cannot accept responsibility for the validity of the goods supplied by it and therefore does not provide a guarantee if the goods are connected to a system other than the above-mentioned system.
Paragraph 10
The Buyer shall ensure that the connections are placed such that the goods to be supplied can be connected without the use of extra provisions, i.e. – if applicable – that the mains socket is situated within one metre of the goods to be installed and that the (system) ports are located within one-and-a-half metres. Any extra provisions shall be charged to the Buyer.
Paragraph 11
All standard supplied goods operate at 230 volt. The Buyer shall therefore ensure that this mains voltage is available and that the mains contacts have an earth connection. Furthermore, the mains voltage shall be free of fault impulses. VyCAP recommends a so-called “clear group” for the connection.
Paragraph 12
A contact person, who is aware of the provisions made for the execution of the installation and assembly works and who also knows the technical possibilities of the computer system used, shall be available at all times during the assembly and installation works. In the event the goods to be delivered cannot be put into operation due to the lack of provisions or the late or non-availability of the ”activated” (system) ports, any extra resulting man hours shall be charged to the Buyer.
Article 8: Statutory regulations
All goods supplied by VyCAP shall meet the statutory regulations in force in the Netherlands and the relevant requirements of the European Union at the time of delivery. Subject to the above sentence, the Buyer shall ensure and provide VyCAP with the guarantee that the agreement and the resulting installation and the use of the goods covered by that agreement are fully in line with the relevant legal stipulations or other government measurers, and that all necessary permits, registrations and such are obtained in good time and/or are carried out and that any other requirements set by the national authorities are met in time. In the event goods to be delivered by VyCAP must meet additional national statutory regulations in the Buyer’s home country, these further requirements shall be clearly communicated to VyCAP in writing in good time and timely specified and repeated for every (consecutive) order. The above also applies in the event the statutory requirements in the Buyer’s home country are adapted before the goods are delivered. Without prejudice to the provisions of Article 23 of these general terms and conditions, VyCAP shall never be liable for any resulting ejects if the goods delivered do not meet the statutory requirements in force and/or other regulations and/or stipulations if the Buyer has failed to communicate these to VyCAP in time and in the correct manner in writing before the order confirmation.
Article 9: Delivery time
Paragraph 1
The delivery time will commence from any of the following times, whichever one is the latest:
- the day the agreement is signed;
- the day VyCAP receives the documents, information, permits, specifications, drawings, technical details, approvals needed for the execution of the agreement and any other materials, etcetera needed for the production, completion or delivery;
- the day VyCAP receives the advance payment from the Buyer stipulated in the agreement.
Paragraph 2
The stated delivery times shall never constitute a deadline, unless expressly agreed otherwise. In the event VyCAP exceeds a delivery time, it shall be sent a written notice of default.
Paragraph 3
In the event a delivery is obstructed either fully or in part by force majeure, VyCAP shall be entitled to suspend delivery, or rescind the agreement in as far as not executed, either fully or in part, without being subject to the payment of damages to the Buyer.
Paragraph 4
In the event a delivery is delayed due to a circumstance not imputable to VyCAP, other than mentioned in the above paragraph, the agreed price/prices shall be invoiced by VyCAP and shall be settled by the Buyer as if the delivery was made on time.
Paragraph 5
In the event VyCAP is obliged to take back goods or store goods due to a delay as mentioned in the two previous paragraphs, it shall be entitled to charge the Buyer an amount totalling 2% of the value of those goods, without prejudice to the provisions of the paragraphs of this Article that follow.
Paragraph 6
In the event the Buyer has not taken receipt of the goods after the delivery time, these will remain at its disposal in storage for its account and risk. However, VyCAP shall in that case also be entitled to rescind the agreement by a written statement and to claim full compensation, or to seek termination of the agreement in court.
Paragraph 7
In the event the Buyer fails to take receipt of goods to be delivered under an agreement after the delivery time, VyCAP is entitled to allocate the goods intended for delivery, in which case VyCAP, after having notified the Buyer, is only obliged to deliver the goods, without prejudice to its power to deliver other goods under the agreement and without prejudice to the provisions of the previous paragraph.
Article 10: Force Majeure
Force majeure is understood to mean any circumstance not under the control of VyCAP, regardless of whether this is to be foreseen at the time of the conclusion of the agreement, which prevents the compliance with the agreement either temporarily or permanently, as well as, if not already included, war, danger of war, civil war, unrest, strikes, lock-outs of employees, transport difficulties, fire and/or serious disruptions at the VyCAP company or any of its suppliers, decisions and measures by government institutions, failure to obtain the necessary permits or any other government formalities, of whatever nature, theft, loss of possession or destruction or damage to company resources, transport or data, the full or part shortage of basic requirements such as electricity, communication lines and other (computer) infrastructure.
Article 11: Packing charges
VyCAP shall at all times be entitled to charge packing costs at cost price and shall not be obliged to take back the packaging.
Article 12: Delivery and Acceptance
Paragraph 1
Unless agreed otherwise in writing, delivery of goods shall take place ex warehouse, in which case the goods shall be considered to have been delivered by VyCAP and accepted by the Buyer as soon as the goods have been offered to the Buyer and/or as soon as the goods have been loaded in or onto the transport vehicle.
Paragraph 2
In the event a free delivery has been agreed upon, the goods shall be considered to have been delivered by VyCAP and accepted by the Buyer as soon as the goods have been delivered to the delivery address supplied by the Buyer.
Paragraph 3
In the event of the supply of services these shall be considered to have been delivered and to have been accepted by the Buyer as soon as the work has been finished.
Paragraph 4
The Buyer shall be able to test the delivered products by means of a standard VyCAP test or by means of a re-run supervised by an authorized VyCAP representative. The Buyer shall be fully responsible for organizing this test. In the event the Buyer fails to comply and does not perform this inspection within 30 days of delivery, the Buyer shall be considered to have accepted the system after a successful trial.
Article 13: Transfer of risk
The goods to be delivered shall be for the account and risk of the Buyer from the delivery as meant in the previous Article.
Article 14: Transport
Paragraph 1
Unless agreed otherwise in writing, VyCAP shall decide on the manner of transport, dispatch, packaging, etcetera without any resulting liability for VyCAP.
Paragraph 2
Unless agreed otherwise in writing, the transport shall take place for the risk and account of the Buyer, also if the transporter has expressly determined that all transport documents must state that any damage arising from the transport shall be for the account and risk of the sender.
Article 15: Inspection and tests
Paragraph 1
VyCAP shall make its goods to be delivered available for inspection by the Buyer at the office of VyCAP during normal working hours and subject to a reasonable advance notification of the exact time of visit. The Buyer shall have full responsibility for organizing and scheduling this inspection. In the event the Buyer fails to comply within 14 days with a written notification to carry out an inspection as referred to above, the Buyer shall be considered to have accepted the goods in question following inspection.
Paragraph 2
In the absence of an express written agreement that the goods to be supplied by VyCAP must meet the requirements tested in an inspection, the Buyer shall never be able to claim compensation from VyCAP if the goods supplied by VyCAP do not meet these requirements.
Article 16: Retention of Title
Paragraph 1
VyCAP shall reserve title to all goods it has delivered to the Buyer until the purchase price for these goods has been settled in full.
Paragraph 2
In the event VyCAP carries out work for the Buyer to be paid by the Buyer under an agreement with the Buyer, the retention of title shall apply until the Buyer has also met this claim by VyCAP in full.
Paragraph 3
The retention of title shall also apply to any claims VyCAP obtains against the Buyer if the latter fails to comply with one or more of its obligations towards VyCAP.
Paragraph 4
As long as the title to the goods delivered has not been transferred to the Buyer, the latter shall not pledge the goods or yield the right to any third party, subject to the provisions of the next paragraph.
Paragraph 5
The Buyer is entitled to sell and transfer the goods delivered under retention of title to third parties within the framework of the regular conduct of business. In the event of sale on credit the Buyer shall stipulate a retention of title from its buyers based on the conditions of this Article.
Paragraph 6
The Buyer shall refrain from selling or pledging claims obtained from its buyers to third parties without the prior written approval of VyCAP. The Buyer also undertakes to pledge the said claims to VyCAP at the latter’s instigation in accordance with Section 3:239 of the Dutch Civil Code, as additional security for all claims VyCAP holds against the Buyer.
Paragraph 7
The Buyer shall store the goods delivered under retention of title with due care and as the recognizable ownership of VyCAP.
Paragraph 8
The Buyer shall insure the goods for the duration of the retention of title against damage from fire, explosion and water, and against theft and present the insurance policies to VyCAP for inspection on its first notification. Any claims the Buyer holds against the insurers of the goods on account of the said insurances shall be pledged on VyCAP’s instigation in accordance with Section 3:239 of the Dutch Civil Code as an additional security for all claims VyCAP holds against the Buyer on whatever account.
Paragraph 9
In the event the Buyer fails to meet its payment obligations to VyCAP or VyCAP has good reasons to fear failure on the Buyer’s part, VyCAP shall be entitled to retrieve goods delivered under retention of title. After retrieval the Buyer shall be credited with the market value, which shall never be higher than the original cost price, minus costs incurred for the retrieval.
Article 17: Intellectual property rights
Paragraph 1
Unless expressly agreed otherwise in writing, all (computer) software, of whatever nature (including software for microchips), shall be made available to the Buyer on the basis of a non-exclusive, non-transferrable licence for the use of that software for the Buyer’s conduct of business and the agreed purpose only.
Paragraph 2
The Buyer shall not be entitled to duplicate the software and the accompanying manuals either fully or in part or to make any attempts to do so without the express prior approval in writing from VyCAP.
Paragraph 3
Unless expressly agreed otherwise in writing, VyCAP shall at all times retain full title, as well as all intellectual and industrial property rights, or the first licence if it is the licence holder, to the software made available to the Buyer. At VyCAP’s first request the Buyer shall take those measures and produce such documents that can verify VyCAP’s (intellectual and/or industrial) property or initial licence.
Paragraph 4
Without prejudice to the provisions of Article 3, paragraph 4, of these general terms and conditions, VyCAP shall retain all other intellectual and industrial property rights to the goods supplied to the Buyer, unless expressly agreed otherwise in writing. Also in view of these goods the Buyer shall take those measures and produce such documents at VyCAP’s first request that can verify VyCAP’s (intellectual and/or industrial) property or initial licence. Unless expressly agreed otherwise in writing, VyCAP shall at all times retain full title, as well as all intellectual and industrial property rights, or the first licence if it is the licence holder, to the software made available to the Buyer. At VyCAP’s first request the Buyer shall take those measures and produce such documents that can verify VyCAP’s (intellectual and/or industrial) property or initial licence.
Article 18: Transfer of Rights and Obligations
Without VyCAP’s prior written approval, the Buyer shall not be entitled to transfer its rights and obligations arising from this agreement either in full or in part to third parties.
Article 19: Payments
Paragraph 1
Unless agreed otherwise in writing and without prejudice to the provisions of the following paragraphs of this Article, payments to VyCAP shall be within 30 days of the invoice date in the manner indicated by VyCAP.
Paragraph 2
Payments shall be made without applying reduction and/or set-off and in the agreed manner. The Buyer shall never for whatever reason be entitled to suspend payment or apply set-off with (alleged) claims from VyCAP.
Paragraph 3
VyCAP shall be entitled at all times to demand advance payment of the entire or part of the sum due for any delivery or part delivery.
Paragraph 4
In the event VyCAP has authorized payment in instalments of the principal amount or a part thereof for goods to be delivered or which have been delivered, the turnover tax for the entire amount due shall be payable together with the first instalments unless agreed otherwise in writing.
Paragraph 5
Costs which have been advanced by the Buyer but which are for the account of VyCAP shall be settled with the payment of the last instalment.
Paragraph 6
Prior to delivery or the continuation of the delivery VyCAP shall be entitled to obtain sufficient guarantee from the Buyer for all or part of its payment obligations.
Paragraph 7
VyCAP shall be entitled to suspend further deliveries in the event the Buyer fails to fulfil its payment obligations, or fails to fulfil its obligation to make available a guarantee or otherwise fails to fulfil any of its obligations to VyCAP, also when a fixed delivery time has been agreed, without prejudice to VyCAP’s right to rescind the agreement and/or claim full damages and without prejudice to any of VyCAP’s other rights.
Paragraph 8
Unless expressly agreed otherwise, all payments made by the Buyer, regardless of under which title, shall initially serve to reduce costs, then to reduce any interest incurred and finally to reduce the principal amount of the outstanding invoice, whereby payments shall initially serve to reduce the principal amount of the invoice of the oldest date, in the event there is more than one outstanding invoice.
Paragraph 9
In the event the Buyer fails to fulfil payment within the agreed term, it is in default at law and liable to pay the user from the due date of the outstanding invoice(s) interest of 12% of the outstanding sum per annum without notice of default being required.
Paragraph 10
In the event the Buyer is in default as a result of the provisions of Paragraph 9, any claims VyCAP holds on the Buyer shall be payable on demand as from that time.
Paragraph 11
Bills of exchange and checks shall not be accepted as a means of payment.
Article 20: Extra-judicial and judicial costs
Any extra-judicial and judicial costs incurred by VyCAP in connection with collecting claims from the Buyer shall be for the account of the Buyer, whereby the extra-judicial costs shall be charged on a pro rata basis calculated for the principal amount claimed or otherwise pro rata to the value of the consideration claimed from the Buyer, in the manner stated hereunder, on the understanding that this shall be at least EUR 250, and on the understanding that VyCAP shall at all times be entitled to claim the actual extra- judicial costs incurred by it, in so far as these exceed the amount calculated below. The extra-judicial costs shall be calculated for the principal sum to be claimed or for the value of any other consideration to be claimed from the Buyer, in the following manner:
for the first EUR 6,500 : 15%
for the excess up to EUR 13,000 : 10%
for the excess up to EUR 32,500 : 8%
for the excess up to EUR 130,000 : 5%
for the excess above EUR 130,000 : 3%
Article 21 : Guarantee and Claims
Paragraph 1
Without prejudice to the provisions of Article 7, paragraph 4, and subject to the following restrictions, VyCAP shall guarantee for a period of twenty four (24) months following delivery as meant under Article 12 of these general terms and conditions the reliability of the goods it has supplied, on the understanding that if these goods do not meet the requirements of the agreement and in so far as the Buyer proves that this is the result of a failure imputable to VyCAP, VyCAP shall deliver the missing items, or repair the good, provided VyCAP can be reasonably expected to fulfil this, or replace the good delivered. This shall not apply if the deviation from the agreement is too negligible to justify repair or replacement, or if the good has been destroyed or has deteriorated as the result of failure on the part of the Buyer to maintain the good as a careful debtor during the time the Buyer would be reasonably expected to allow for repair or replacement of the good. The above-mentioned obligations of guarantee shall be carried out by VyCAP.
Paragraph 2.
In principle, all goods are repaired at the address of VyCAP. Together with the Buyer, VyCAP shall determine the most efficient and/or cost effective repair procedure. In case returning goods for repair to the address of VyCAP is not possible, will lead to high costs or has other limitations, VyCAP service engineers can be dispatched to the Buyer’s address.
Paragraph 3.
Goods send for repair are delivered free of charge at the address of VyCAP. Following the repair the goods shall be available to the Buyer ex warehouse. Transport, as well as any fitting or extension costs shall not be covered by VyCAP’s guarantee obligations and shall be for the account of the Buyer.
Paragraph 4.
For repairs at the Buyers site, VyCAP service engineers are dispatched to further diagnose and repair the VyCAP goods. Costs of travel and stay, and value-added tax, import duties or any other taxes related to shipping of spare parts to the Buyers site, as well as any fitting or extension costs shall not be covered by VyCAP’s guarantee obligations and shall be for the account of the Buyer.
Paragraph 5
Claims regarding visible defects shall be made in writing within 8 days of delivery. This term shall constitute the expiry term.
Paragraph 6
Claims regarding non-visible defects shall be made in writing within 8 days after their detection until no later than three months after delivery. Both terms shall constitute expiry terms.
Paragraph 8
Claims made regarding the amount invoiced by VyCAP shall be reported in writing within eight days of the invoice date. This term shall constitute the expiry date.
Paragraph 9
In the case of replacement or compensation the use that has been made of the goods delivered shall be taken into account.
Paragraph 10
The guarantee shall apply only if the Buyer has met all its obligations towards VyCAP.
In addition, VyCAP shall not be required to make any guarantee in whatever form, if its goods have been processed, if the Buyer fails to adhere strictly to VyCAP’s recommendations and the manufacturer’s and/or VyCAP’s suppliers’ instructions of use and assembly or if third parties, whether or not instructed by the Buyer, make changes to the goods delivered by VyCAP without the latter’s approval.
Paragraph 11
With regard to goods and/or raw materials supplied by VyCAP which it purchased from third parties, the provisions of the above paragraphs apply only in so far and to such extent as the supplier of those goods and/or raw materials has provided VyCAP with a guarantee.
Paragraph 12
Except in the case of a malicious act or gross culpability on the part of VyCAP’s senior or lower management, compensation shall consist solely of the fulfillment of the guarantee obligations. VyCAP shall not be obliged to make any other form of compensation.
Article 22: Return shipments
Paragraph 1
Return shipments shall only be accepted after prior approval in writing by VyCAP, provided delivery takes place free of charge. Clearance charges, any import levies, etcetera shall in that case be for the account of the Buyer and charged accordingly.
Paragraph 2
The acceptance of return shipments shall not automatically mean approval by VyCAP.
Article 23: Liability
Paragraph 1
Without prejudice to the provisions of Article 7.6 and Article 21 of these general terms and conditions, VyCAP shall never be liable for damage of whatever nature arising from goods supplied by VyCAP, except in the case of a malicious act or gross culpability on the part of VyCAP’s senior or lower management.
Paragraph 2
Without prejudice to the provisions to the previous paragraph, this expressly excludes every liability of VyCAP for consequential losses or other indirect damages.
Paragraph 3
Without prejudice to the provisions of the previous paragraphs, an obligation on the part of VyCAP to pay damages in the event of possible liability shall always be limited to the amount excluding VAT the Buyer is to pay VyCAP in accordance with the agreement, on the understanding that VyCAP shall never owe damages exceeding EUR 100,000.
Paragraph 4
Without prejudice to the stipulations of the previous paragraphs, the Buyer shall lose the right to make claims against VyCAP twelve months after the damage first occurred.
Article 24: Indemnity
Paragraph 1
Except in the case of a malicious act or gross culpability on the part of VyCAP’s senior or lower management, the Buyer shall be required to pay damages to VyCAP for any costs, damages and interest VyCAP has incurred as the direct or indirect result of legal claims which third parties have brought against it with regard to the execution of the agreement. The Buyer shall be liable on account of the agreement to comply with a third-party notice by VyCAP.
Paragraph 2
In connection with the provisions of the previous paragraph the Buyer shall be liable to maintain a proper and functioning system to allow the tracing of goods supplied by VyCAP as being VyCAP goods at all times. The Buyer shall be required to direct its buyers to comply with the obligation from the above sentence.
Article 25: Proof of administration
Except for evidence to the contrary, the information held in VyCAP’s administration shall be decisive in matters relating to the agreement.
Article 26: Suspension and rescission
Paragraph 1
Without prejudice to the provisions of the above articles regarding suspension and rescission, VyCAP shall be entitled to suspend the agreement for a maximum period of six months, or to rescind the agreement if not yet executed, either without notice of default or recourse to the courts, if the Buyer fails or fails to meet in time one of its obligations arising from the agreement concluded between VyCAP and the Buyer, or if VyCAP is in serious doubt if the Buyer can meet its obligations from the said agreement, or in case of bankruptcy, suspension of payments, receivership, suspension, liquidation of the Buyer, part or full transfer or (secret) pledging of its company or of an important part of its capital equipment or claims, leaving intact the VyCAP’s right to claim compensation for damages suffered or profits lost.
Paragraph 2
In the event of rescission as meant in the previous paragraph, the agreed price due to VyCAP becomes payable on demand with deduction of sums already paid and costs not yet incurred by VyCAP.
Paragraph 3
In the circumstances mentioned in paragraph 1 all outstanding claims VyCAP holds at that time against the Buyer shall become enforceable immediately.
Article 27: Severability
Paragraph 1
If any provision of these general terms and conditions is invalid, declared void or otherwise unenforceable, this shall not affect the validity of the rest of the general terms and conditions and the remainder of these general terms and conditions shall remain in full force and effect.
Paragraph 2
If any provision of these general terms and conditions is invalid, declared to be void or otherwise unenforceable, then VyCAP and Buyer shall agree on a legally valid substitute for that provision that, as closely as possible, approaches the business effect of the invalid provision.
Paragraph 3
The provisions of this Article 27 shall also apply in case of an omission of a provision, term, condition, etcetera from these general terms and conditions.
Article 28: Disputes /applicable law
Paragraph 1
All agreements to which these terms and conditions apply either in full or in part shall be governed by Dutch law.
Paragraph 2
Subject to the provisions of Article 100Rv and Article 101Rv (i.e. Sections 100 and 101 of the Dutch Civil Procedure Code), legal Claims disputes shall be settled by the competent court within the district of the Almelo District Court, the Netherlands.
Paragraph 3
In the event parties fail to agree on the meaning and/or interpretation of any of the provisions set out in these General Terms and Conditions, the Dutch text shall prevail.