These General Terms & Conditions of Sale (hereinafter referred to as the “T&C”) apply to all sales/agreements and deliveries made by MPI Chemie B.V. (hereinafter referred to as “MPI”). Any modifications of or deviations from them must be agreed in writing by MPI. The objects to be supplied under these T&C are hereinafter referred to as the « Goods ». Wherever these T&C use the term « in writing », this shall refer to any document shared by the relevant party or parties with the other party or parties (including, but not limited to, a letter or e-mail). All sales are made exclusively pursuant to the Incoterms 2010 mentioned on the relevant sales order confirmation by MPI, if any, and these T&C. If and to extent the applicable Incoterms 2010 contradict, or are incompatible with, these T&C, the Incoterms 2010 shall prevail. The applicable Incoterms 2010 and these T&C exclude and or supersede any other terms and conditions which a buyer might seek to impose, irrespective of whether such other terms and conditions are contained or referred to in an earlier or a later document than the quotation or sales order confirmation by MPI containing the applicable Incoterms 2010 and these T&C, and purport to exclude and/or supersede any of the applicable Incoterms 2010 and these T&C.
2. Acceptance of orders
All orders are considered definitive only upon written sales order confirmation from MPI. No subsequent order cancellation by the buyer is permitted or valid, unless expressly agreed to in writing by MPI.
The price of the Goods shall be the price stated in MPI’s sales order confirmation and invoice. Any other price indication communicated to the buyer is not binding upon MPI. All prices are nett prices, exclusive of VAT or any other tax, duty or any other cost element, unless explicitly mentioned. All taxes, duty or any other costs relating to the Goods, their purchase or their transportation shall be born in accordance with the applicable Incoterms 2010.
4. Terms of payment
The price or any other amount owing to MPI is due and payable on the due date stipulated by MPI in the invoice. All banking costs (except from Rabobank Netherlands) are to be paid for by the customer. Under no circumstances shall the buyer be entitled to withhold any payment or part of a payment owing to MPI. In the event of non-payment on the due date of any amount then due, all other amounts owing to MPI shall become immediately due and payable. Any payment made by the buyer shall be imputed to the prices/amounts of orders in the chronological sequence of their execution by MPI, beginning with the first order executed. Any payment not made on the due date shall, upon written notice from MPI be subject to the interest payable at the rate of statutory commercial interest (‘wettelijke handelsrente’).
Delivery of the Goods shall occur when the Goods have been loaded onto the first transportation vehicle to be used to transport the Goods from MPI to the buyer, irrespective of whether such transportation be arranged by the buyer or by MPI. Delivery dates are indicative only. MPI reserves the right not to deliver, or to discontinue the delivery of the Goods if the sale thereof would, in MPI’s reasonable opinion, infringe any intellectual property rights of a third person. If the buyer has been requested by MPI to certify in writing that he has complied with all the applicable regulations of the country of destination of the Goods, MPI shall be under no obligation to deliver the Goods, or to continue delivery, unless and until a certificate has been provided to MPI. The risk of the Goods shall pass to the buyer at the moment the delivery occurs.
6. Ownership retention
Ownership of the Goods shall pass to the buyer only upon full payment of the sales price and of any other amounts due and owing to MPI with respect to the Goods, their purchase or their transportation. To the extent technically possible the Goods shall be kept separate and distinct from any other property of the buyer and from that of any third parties, and shall be kept in good and substantial repair and condition and be stored in such a way to be clearly identifiable belonging to MPI.
The buyer shall inspect the Goods immediately upon arrival at their destination. MPI shall only be liable for a lack of conformity of the Goods if the buyer notifies MPI in writing thereof within seven days of the arrival of the Goods at their destination. In such an event, MPI shall have the right to send, at its expense, one or more inspectors to assess the conformity of the Goods. The buyer shall provide, or cause to be provided to, the inspectors access to the Goods for a reasonable period of time and under reasonable operating conditions. The Goods in question have been kept separate, in their original packing with marks intact, so that their identity can be established. Goods can be accompanied with a Certificate of Analysis. This certificate does not relieve the buyer from applying its own appropriate test or quality procedures. When sales are made according to samples the properties of the samples or specimens are not considered as guaranteed in respect of the Goods. The same applies to consistency in relation to previous deliveries. Samples shall merely be considered as specimens for demonstration purposes without prejudice, showing the approximate character and general type of goods. Descriptions along the lines of ‘the same/similar as supplied/delivered before/previously’ shall always be understood to mean ‘approximately the same/similar’.
8. Liability and warranty
MPI’s total liability to the buyer for any and all claims, losses or damages arising out of any case whatsoever, whether based in contract, negligence or other tort, strict liability, breach of warranty or otherwise, shall in no event exceed the sales price as actually received by MPI for the Goods, with a maximum of Euro 50,000 per calendar year. In no event shall MPI be liable for special, incidental, consequential (including lost profits or lost sales), punitive, exemplary or any form of indirect damages. MPI makes no representation or warrant regarding the suitability or fitness of the Goods for any particular purpose, and the buyer shall satisfy himself in this respect and shall be totally responsible therefor.
9. Force Majeure
In no event shall MPI be responsible or liable for any failure or delay in the performance of its obligations towards the buyer arising out of or caused by a force majeure. A force majeure is here taken to include: all circumstances, unforeseen or otherwise, which are not attributable to MPI and which wholly or partly prevent MPI from meeting its obligations or as a result of which MPI cannot reasonably be expected to meet these obligations. This includes: war or similar situations, unrest, sabotage, boycotts, strikes occupation, blockades, damage or breakdown of installations owned by MPI or its suppliers, transport difficulties, breakdown in telecommunications, government measures, natural disaster, fire or explosion.
The buyer shall not assign or transfer or purport to assign or transfer any rights or obligations hereunder to any other person without the prior written consent of MPI.
11. No waivers
The granting of any indulgences, forbearance or extension of time by MPI, or the failure or delay by MPI in asserting or exercising its rights hereunder shall not be construed as a waiver by MPI or its rights hereunder.
12. Governing law and jurisdiction
The sale of the Goods is governed by laws of the Netherlands, excluding any conflict of law rules under Dutch international private law. The applicability of the United Nations Convention on Contracts for the International sale of Goods us explicitly excluded. Any disputes arising out of or in connection with a sale of the Goods or these T&C shall be submitted to the District Court Midden-Nederland (Rechtbank Midden-Nederland), provided that MPI shall have the rights to bring a suit in whatever jurisdiction it deems fit or appropriate.