OF SALE, DELIVERY, ENGAGEMENT AND ACCEPTANCE OF WORK
1. General stipulations
1.1 In these general terms and conditions the following words shall have the following meanings:
“General Terms and Conditions”: these general terms and conditions concerning the sale, delivery,engagement and acceptance of work;
“EMMA”: the company that the Client does business with, being the limited company EMMA Holding BV or Emma Safety Footwear BV, or another company belonging to the group of Emma Holding using these General Terms and Conditions;
“Client”: any (potential) other party of EMMA;
“Force Majeure”: any non-attributable shortcoming on the part of EMMA which either permanently or temporarily prevents the execution of the agreement, for example sickness or unlawful absence of staff, war, threat of war, civil war, riots, strikes, staff lockouts, transport problems, shortage of raw materials, damage to machines, theft, fire, power failures or other serious failures, all this with respect to EMMA or third parties called in by EMMA;
“Default”: the situation in which the consequences of not performing an agreement take effect, such as for example the right to compensation and the right to set the contract aside.
1.2 Any term in the singular shall be understood to also include the plural and vice versa.
2.1 The General Terms and Conditions are applicable to all quotations, estimates and offers by and to EMMA and agreements with EMMA (including later or amended versions thereof), with regard to the sale and/or delivery of goods, engagement, acceptance of work as well as to all other acts and activities on the part of EMMA.
3. Formation of agreements
3.1 Every offer or quotation by EMMA, in whatever form, is without engagement. Orders and acceptance of offers by the Client are irrevocable.
3.2 Any agreement to which EMMA is party will only come into effect (1) after the agreement has been signed by both parties from the day on which it was signed, (2) if this does not occur, by means of a written order confirmation by EMMA, i.e. from the day this was sent by EMMA, (3) if this does not occur, by EMMA making a start with the actual execution of the work, i.e. from the day on which EMMA made a start with this.
3.3 The Client’s general terms and conditions (of purchase) are explicitly not applicable, and any reference to the general terms and conditions (of purchase) of a third party or to a rejection of the General Terms and Conditions will not have any effect.
3.4 Only EMMA employees with sufficient power of attorney as evidenced by the Commercial Register are entitled to represent EMMA. Any agreement entered into with an EMMA employee not entitled to represent the company, can be written confirmed by EMMA. Oral commitments do not bind EMMA unless they have been confirmed by EMMA in writing.
3.5 Deviation from and changes to an agreement and deviations from the General Terms and Conditions are only valid if they have been explicitly agreed in writing.
4.1 Unless explicitly agreed otherwise in writing, all prices are in Euro, excluding VAT. If no price has been agreed on, a reasonable price shall be payable; in determining that price, the prices usually charged by EMMA at the time of the agreement being entered into will be taken into account.
4.2 All prices for goods are ex works, excluding costs, for example costs for packaging, transportation, import and export.
4.3 If after the offer and/or the agreement has come into effect a change occurs or becomes known in the factors that determine the cost price, or extraordinary expenses arise or become known, EMMA is entitled to change the price of the offer and/or agreed prices accordingly. EMMA will notify the Client of the change written as soon as possible. In case of a change within 3 months of the agreement being entered into, the Client is entitled to cancel the agreement. The Client has to notify EMMA of its decision to cancel the agreement in writing within 8 days of receipt of the notice announcing the price change, in the absence of such notification the agreement with the price increase will remain valid.
4.4 If no price has been agreed on for extra work, than EMMA is entitled to charge the Client for the extra work at a price based on the price of the work originally agreed on.
5.1 Unless explicitly agreed otherwise in writing, all payments must be made at the option of EMMA either cash on delivery or, at the latest, within thirty days of delivery at the offices of EMMA or into an account to be designated by EMMA.
5.2 The Client is never entitled to apply any deductions,suspend payment or set off claims or retain possessions belonging to EMMA.
5.3 EMMA is at all times entitled to demand guarantees and/or exclusively send goods cash on delivery to ensure that payment obligations are met.
5.4 If various invoices, costs or sums of interest are outstanding, EMMA is entitled to first of all write off any possible costs, then any possible interest and subsequently first of all the earliest outstanding invoice, from payments received, irrespective of the allocation the Client has given to the payment.
5.5 If the Client does not pay within the applicable term, he shall be in Default by operation of law and from the day following the last day of the term will owe the statutory commercial interest pursuant to article 6:119a Dutch Civil Code, as well as all of the judicial and extrajudicial costs relating to the collection of the debt. The extrajudicial debt collection costs are deemed to be at least 15% of the amount due, subject to a minimum of EUR 250.
5.6 All debts owed to EMMA by the Client become immediately due and payable in the event of bankruptcy, suspension of payments, liquidation or the closure of the Client’s business, and when the attachment at the Client’s expense is not lifted within a reasonable period of time.
6. Execution of the agreement by EMMA
6.1 In so far as the execution of the agreement by EMMA, for example the nature of the production methods used by EMMA and the nature and quality of the materials and resources used in the execution of the agreement, has not been explicitly agreed in writing, this will be determined by EMMA.
6.2 Minor deviations from the agreed tolerances and/or measurements, capacities and/or results of the goods to be manufactured by and/or supplied by EMMA and/or work or orders to be carried out by EMMA will not constitute a shortcoming in the execution of the agreement by EMMA.
6.3 EMMA is entitled to execute the agreement by means of partial deliveries and/or partial execution, unless explicitly agreed otherwise in writing. In the case of partial deliveries and/or partial performance, EMMA is entitled to invoice these partial deliveries and/or partial performances.
7.1 Goods are considered to have been delivered once they are ready for shipment, all this after the Client has been notified of this in writing. Performances which do not consist of the delivery/supply of goods, are considered to have been completed after the work has been completed.
7.2 EMMA determines the manner of packaging, unless agreed otherwise in writing. Packaging can only be returned if EMMA so wishes.
8. Performance Time
8.1 Performance time: the time or period for execution by EMMA as agreed on by EMMA or stated in its quote. This performance time at all times applies by approximation, unless the parties explicitly agreed in writing that a deadline exists.
8.2 The Performance Time is based on the circumstances applying at the time the agreement is entered into and in the expectation of timely and complete performance of the obligations of third parties with respect to EMMA. If delays occur as a result of changes in the said circumstances and/or because performances essential for the execution of the agreement are not delivered by sub-contractors in time, the Performance Time will be extended where necessary.
8.3 Without prejudicing the stipulations in the previous section, the Performance Time will be extended by the duration of the delay occurring at EMMA as a result of the non-performance by the Client of some of the obligations arising from the agreement or as a result of a lack of cooperation on the part of the Client with regard to the execution of the agreement.
8.4 If the Client places an order and/or requests a performance on demand, the Client has to demand and take delivery of this order and/or performance no later than the last day of the demand period.
9.1 Immediately after delivery of the goods, and in any case after the goods have left the EMMA site, the Client bears the risk for the goods, for example the risk for all direct and indirect damages that may arise to or as a result of these goods, except in the event that this is due to deliberate or gross negligence on the part of EMMA.
9.2 Transportation takes place under all circumstances at the Client’s account and risk, also when carriage paid shipments and/or return shipments are involved. If the Client does not collect a good (in due course), the costs of storage and safekeeping and additional costs incurred by EMMA will be for the account of the Client.
9.3 Damage to goods, caused by destruction of the packaging is for the Client’s account and risk.
10. Retention of title and right of retention
10.1 Ownership of the goods delivered or to be delivered is first transferred to the Client when payment has been received by EMMA, for everything that is owed by the Client in connection with goods delivered or to be delivered pursuant to the agreement or pursuant to such an agreement also for work carried out or to be carried out for the benefit of the acquirer, as well as in connection with claims on account of a failure to perform such agreements. With regard to goods that are carried to Germany (by EMMA or by a third party) this retention of title is subject to German law, and the Client is authorized to alienate the goods in his ordinary business operations, but the Client will consequently transfer and deliver to EMMA all claims arising from the sale, up to a maximum of the price stated by EMMA, whereby the Client binds himself to sign an (additional) deed of assignment at the first request of EMMA. The Client confers to EMMA the right to independently collect the aforesaid claims from the third party in case of a Default on the part of the Client. In the event of non-fulfilment of any obligation by the Client EMMA is irrevocably authorized to reappropriate the goods it is entitled to.
10.2 EMMA is entitled to suspend the delivery of all goods which EMMA is keeping for the Client until the Client has fulfilled all its obligations arising out of the agreement in respect of EMMA. In the case of a suspension, EMMA is entitled to charge the Client the storage costs.
11. Suspension and setting aside the agreement
11.1 In the following instances, EMMA is entitled to suspend the execution of the agreement for a maximum of 6 months, and/or to partially or fully cancel the agreement, without prior notice or notice of default and without EMMA being liable to pay any damages:
a) in the event of an impediment to perform the agreement as a result of Force Majeure;
b) if the Client does not, or does not properly or timely, fulfil any of his obligations, arising for him out of the agreement entered into with EMMA or any agreements connected with this, or if there is a well-founded fear that the Client is not or will not be able to fulfil his contractual obligations in respect of EMMA;
c) in the case of bankruptcy, suspension of payment, the Client’s business closing down, liquidation of the Client’s business, as well as when attachment is levied against the Client and this attachment is not lifted within a reasonable term;
d) in the event of a transfer of ownership of the Client’s business.
12. Inspection; shortcomings on the side of EMMA
12.1 The Client is obliged to meticulously inspect deliveries and the performance of works and orders forthwith upon receipt or completion, as the case may EMMA grants, up to 12 months after delivery by EMMA warranty against manufacturing defects, provided that the subject of the complaint is timely as is prescribed in article 12.2 and 12.3.be and also in conformity with the provisions in article 14.
12.2 Any complaint with respect to visible faults should be put in within eight days after receipt of the objects or completion of the work or the order, any complaint with respect to incomplete delivery within two days after receipt of the goods, both exclusively by means of a registered letter addressed to EMMA. If these periods have expired, any right of the Client with respect to the faults and any liability and any warranty of EMMA will dissolve. Any complaint with respect to a portion of the goods delivered does not give the Client the right to refuse or reject an entire shipment.
12.3 Any complaint with respect to invisible faults should be put in at once upon its discovery, however, within the guarantee period as implied by article 14.2 after receipt of the objects or completion of the work or the order, exclusively by means of a registered letter addressed to EMMA. If this period has expired, any right of the Client with respect to the faults and any liability and any warranty of EMMA will dissolve.
12.4 Actions with respect to faults are to be commenced within 6 months after the valid complaints have been put in on time, under penalty of dissolution.
12.5 Faults for which a complaint has been legally put in on time will be repaired by and at the expense of EMMA within a reasonable period of time after the complaint. EMMA has the right, however, to cancel wholly or partly the agreement, with respect to which a complaint has been put in and will be only obliged then to refund the price wholly or partly and will not be obliged to pay any damages.
12.6 The Client is not entitled to put in a claim with respect to faults that are wholly or partly the result of:
a) non-compliance by the Client or third parties of instructions attached by EMMA to the use of the objects supplied as well as the normal use expected;
b) normal wear;
c) the application of any provision by the authorities with respect to the nature or the quality of the materials adjusted;
d) materials, substances and means of production used in consultation with the Client or objects, or materials, substances and means of production that were known to the Client or that were applied on his instructions;
e) materials or objects delivered by or on behalf of the Client.
12.7 If the Client does not or not duly or not on time comply with any obligation, resulting for him from the agreement entered into with EMMA, or from any agreement linked up with it, the Client is not entitled to put in claims with respect to those agreements.
12.8 If the Client should pass on or have third parties pass on to repair or other activities with respect to any objects delivered, without the previous written consent of EMMA, The Client is not entitled to put in claims with respect to those agreements.
13. Default on the part of EMMA
13.1 EMMA is never in Default before the Client has explicitly put EMMA into default in writing and has put in a request for the shortcoming/defect to be remedied within a reasonable term and this reasonable term has lapsed.
13.2 EMMA is never in Default when the shortcoming/defect in the performance of its obligations is a result of Force Majeure.
13.3 EMMA is never in Default on account of defects during the period that EMMA has the opportunity to remedy the defect in accordance with article 12.
13.4 EMMA is never in Default on account of defects with respect to which the Client is not entitled to claim.
14.1 EMMA guarantees that the goods delivered by it are high quality goods. Should there nonetheless be defects, EMMA will ensure that these defects are repaired, the goods are replaced or compensation is paid to the Client up to a maximum of the invoice value exclusive of VAT after receipt of the original contract note and its filled out guarantee form, such only at the option of EMMA.
14.2 The guarantee has a term of 12 months after delivery to the Client, provided that the production date is no more than 12 months prior to the purchase date and – in some cases – the end user has not filed a complaint to the Client or EMMA more than 2 months after his purchase.
14.3 The guarantee never confers the right to the Client to proceed to repair or replace goods. Each guarantee or obligation to pay compensation of EMMA lapses if the Client does not enable EMMA to repair or replace goods or pay compensation.
14.4 The Guarantee does not cover any defects that are wholly or partly the result of
• not observing user instructions or use other than the standard use or intended use foreseen by EMMA;
• ordinary wear and tear;
• assembly/repair by third parties and/or the Client;
• the application of any government regulation concerning the nature or quality of applied materials or other manufacturing choices;
• deviating materials or goods used in consultation with the Client;
• parts purchased by EMMA from third parties insofar as these third parties did not provide any guarantee to EMMA;
• processing of goods by the Client;
• environmental or climatological conditions or other external effects (either by natural causes or by human interference).
15. Liability on the part of EMMA
15.1 Save for the provisions in articles 12, 13 and 14 the Client has no claim against EMMA on the grounds of defects in or with regard to goods delivered and/or services provided by EMMA.
15.2 Damage consisting of a loss of profit or reduced proceeds/revenue and all other indirect damage or consequential damage, such as consequential loss over any damages or fines payable by the Client to others, will in no event qualify for compensation.
15.3 EMMA is not obliged to pay compensation, where the total amount of the damage exceeds the net amount of the invoice, calculated without VAT and costs.
15.4 The Client is not entitled to compensation if EMMA is not in Default, or during the period concerned in which EMMA is not yet in Default.
15.5 EMMA is at no time obliged to pay compensation for damages consisting of or connected with:
a) violations of patents, licences and/or other rights of others as a result of the use of information provided by or on behalf of the Client;
b) damages or losses, irrespective of the cause, involving the raw materials, semi-finished products, models, tools, etcetera made available by the Client;
c) the unsatisfactory nature or unsuitability of materials and production methods and processes applied at the Client’s request.
15.6 Any advice, information or statements made by EMMA in relation to capacity/performance of goods delivered or activities carried out are free of obligation and are provided by way of non-binding information. EMMA does not provide any guarantee in relation thereto.
16. Claims by third parties
16.1 The Client is obliged to indemnify EMMA against claims and compensation on account of all claims for compensation by third parties including claims based on product liability, in connection with the execution of the agreement by EMMA, irrespective of the cause, and against any costs arising therefrom for EMMA.
16.2 In the event of workers being seconded or made available by EMMA, the Client is obliged to indemnify EMMA against claims and compensation on account of all claims made by these workers on account of accidents at work which take place outside the EMMA’s sphere of activity and on account of all claims by third parties founded on mistakes which these employees make outside EMMA’s sphere of activity.
17. Materials made available
17.1 If the Client places goods at EMMA’s disposal for processing, treatment, repairs, inspection or for any other purpose, these goods will be deposited with EMMA at the Client’s account and risk, except in the event of deliberate or gross negligence on the part of EMMA. The Client will have to see to it himself that these goods are adequately insured.
17.2 The Client is obliged to pay rent to EMMA for materials made available to the Client by EMMA, unless explicitly agreed otherwise in writing.
18. Industrial and intellectual property
18.1 All offers/quotations submitted by EMMA, as well as any drawings, calculations, notes, descriptions, models, instruments, and so on will remain the property of EMMA, irrespective of whether these were invoiced or not.
18.2 The intellectual and industrial property rights relating to everything that is manufactured by EMMA for the Client or is provided to it (including at any rate the copyright to the design thereof) are vested in and exclusively belong to EMMA. At the first request of EMMA the Client will give its cooperation to any formalities (such as signing a deed of transfer) which are necessary to (further) guarantee the position of EMMA as entitled party
18.3 The information which forms the basis for the manufacturing and construction methods, products etc. remains the exclusively reserved to EMMA, irrespective of whether this was invoiced or not.
18.4 The Client guarantees that, without EMMA’s written permission, the information mentioned in articles 17.1 and 17.2 will never be copied, shown to third parties, made known to, or made available to, third parties in any form whatsoever, other than for the execution of the agreement.
18.5 The Client is obliged to observe secrecy with respect to all company information and product information relating to EMMA of which he can reasonably expect that EMMA may require secrecy.
19. Further stipulations
19.1 EMMA may offset possible outstanding debts owed to the Client or companies belonging to the Client’s group against its claims against the Client or companies belonging to the Client’s group.
19.2 The Client is not entitled to transfer any rights and obligations arising from agreements with EMMA wholly or partly to a third party without the prior written permission of EMMA.
19.3 If one or more stipulations of an agreement and/or the General Terms and Conditions are deemed to be invalid, or observance of this stipulation cannot be demanded for whatever reason, the remaining stipulations contained in the agreement or the General Terms and Conditions remain in full force. Parties will then consult each other with respect to the best way of executing the meaning of the stipulation in question, on the understanding that the Client is obliged in respect of EMMA to reach agreement on the applicability of a deviation clause which, in terms of content, effect as well as the consequences for EMMA, agree as much as possible with the stipulation concerned.
19.4 EMMA may also invoke the stipulations of an agreement or the General Terms and Conditions if it has not invoked these in earlier instances or on earlier occasions.
19.5 EMMA cannot be obliged to accept follow-up orders or to pay compensation if it fails to do so, unless explicitly agreed otherwise in writing.
19.6 The Client is not authorized to represent EMMA and is not an agent of EMMA, unless specifically agreed otherwise in writing.
19.7 All quotations, offers and/or agreements and other legal relationships with EMMA are exclusively subject to Dutch law, notwithstanding the provisions in article 10.1.
19.8 All disputes, for example arising out of or as a result of the quotations and/or offers submitted by EMMA, and/or agreements entered into with EMMA, will in the first instance be exclusively decided on by the competent judge at the District Court Limburg. EMMA is nevertheless entitled to enlist the services of another competent judge.
19.9 The Dutch version of the General Terms and Conditions is the only determining version.
6 November 2015. Filed at the Chamber of Commerce under file no. 57164371.