1. Introduction
1.1 These delivery and payment conditions apply to all deliveries, services and mediation and to all other agreements of or by Phoenix Nano Technologies, registered trade name of Reliability & Quality BV under number: 04049660 in the commercial register of the chamber of commerce for Oost Nederland in The Netherlands, hereinafter referred to as "PHOENIX NT ".
1.2 Deviations from or supplements to these General Terms and Conditions may only be invoked in so far as they have explicitly been confirmed by PHOENIX NT in the form of a separate written statement.
1.3 Any agreement between the principal and any third party or parties (e.g. title holders) having been arrived at as a result of or following the mediation of PHOENIX NT implies its independent entitlement to compensation of its mediation activities in addition to its collection rights including the collection of that which accrues to such third party or parties.
2. Offers, Prices, Granting
2.1 All offers made in any form whatsoever shall be subject to contract except where they include a term of acceptance. In the event that an offer is subject to contract and the offer is accepted, PHOENIX NT shall be entitled to withdraw the offer within five working days of receipt of such acceptance. PHOENIX NT shall confirm any offer or sale, as the case may be, in writing. Any agreements or pledges made in advance which it has not confirmed in writing shall be lapsed.
2.2 Each offer - in so far as it concerns an agreement between the principal and any title holder(s) - is made subject to the proviso that the title holder(s) should formally approve the substance of the agreement.
2.3 All prices listed shall be net of value-added tax unless it is expressly stipulated to the contrary. The sales price shall be based on such prices, rates, wages, taxes, charges, freights, et cetera as prevail at the time of confirmation. In the event of a subsequent increase in such prices, rates, wages, taxes, charges, freights et cetera, PHOENIX NT shall be entitled to change agreed prices accordingly even if the increase takes place pursuant to such circumstances as were foreseeable as early as when the offer was made or on acceptance or confirmation thereof. In so far as PHOENIX NT is to implement a price rise as early as within three months of the agreement having been concluded, the principal shall be entitled forthwith to dissolve the agreement on having taken cognisance of such price rise.
2.4 In the event that the principal, or the principal of the principal etc. where PHOENIX NT is held to fulfil her obligations under the agreement, issues special instructions in relation to an order which demand extra attention and effort on the part of PHOENIX NT, the latter shall be entitled to charge on the related additional time and costs to the principal.
2.5 Advice on quantities, packaging, dimensions, weight, colour, content, composition, et cetera provided by PHOENIX NT in illustrations, drawings, catalogues, et cetera shall be deemed only to have been provided by way of approximation.
2.6 PHOENIX NT shall be authorised to perform in instalments and demand payment for such portion of an assignment as has been satisfied as per article 9 et seq. hereinafter.
2.7 In the event that PHOENIX NT accepts work as part of an assignment which it in turn does outsource and unless it concerns conditions qualifying as unusual in the sector in question, PHOENIX NT shall be able fully to conform with such third-party conditions as apply to such outsourcing, which means that the principal authorises PHOENIX NT, now for then, to carry out any assignments granted to it in such manner. (By way of example, reference is made in this context to the Delivery Conditions for the Graphics Industry having been lodged with the Court Registry of Amsterdam District Court on 13 August 1981 under number 188, which PHOENIX NT is authorised in applicable cases to apply in relation to the principal by way of supplement to the present conditions, in so far as they are not incompatible therewith.)
3. Delivery
PHOENIX NT reserves the right to do a creditworthiness check on every new customer and may cancel a purchase order of the principle if deemed necessary in which case PHOENIX NT will inform the principal that no goods will be delivered. Delivery times having been stated may never be regarded as firm dates unless it has been agreed differently in writing. In the event such term is exceeded, the principal shall grant PHOENIX NT a further term which shall be equal to the originally agreed term, within which the latter may effect compliance. The mere exceeding of the firm date shall never entitle the principal to demand dissolution, nullification of the agreement of compensation for loss. Unless it has been agreed otherwise, the principal shall be entitled to cancel the agreement if PHOENIX NT has still failed to perform on expiry of the second term extended by a 30-day waiting period; in this case PHOENIX NT shall not be under any obligation to provide greater compensation for loss than the level of the price of the assignment.
4. Non-attributable shortcoming (force major)
4.1 The principal may not demand that PHOENIX NT comply with the latter's obligations pursuant to the agreement in so far as PHOENIX NT 's non-compliance or tardy compliance has directly or indirectly, in any way whatsoever, been caused by or ensues from any shortcoming which is not attributable to PHOENIX NT.
4.2 Non-attributable shortcomings shall include, without being restricted to, the following events and/or situations: decisions and measures by any authority, failure to obtain the required licences or other formalities from authorities of whatever nature, industrial disputes, staff shortage, shortage of raw materials or components, defective or delayed transport, theft, loss of possession or destruction of or damage to operating assets or company data, non-performance or inadequate or tardy performance by suppliers, title holders and other PHOENIX NT contracting parties. Any circumstances which complicate PHOENIX NT’s compliance with its contractual obligations shall furthermore be regarded as shortcomings not attributable to PHOENIX NT; this shall include non-compliance with such quality specifications as PHOENIX NT has imposed on products to be supplied by third parties. Any such instances shall discharge PHOENIX NT of all liability while entitling it to cancel the agreement in whole or in part without being under any obligation to make good any loss whatsoever. The provisions as per article 3 herein-before concerning the cancellation of the agreement by the principal shall not apply unless the situation of non-attributable shortcoming is sustained for a period in excess of four months, on expiry of which the principal shall be permitted subject to prior notification by registered letter to PHOENIX NT to effect cancellation in accordance with article 3 herein-before. PHOENIX NT shall then not be under any obligation to make good any loss whatsoever.
5. Guarantee
5.1 All products supplied by PHOENIX NT shall in so far as appropriate be supplied subject to manufacturer's guarantee and on such guarantee conditions as used by the manufacturer. However, PHOENIX NT shall not independently assume the guarantee obligations concerning goods having been manufactured by third parties; rather, it shall merely be under an obligation to assist the principal in invoking the latter's rights vis-à-vis the manufacturer.
5.2 PHOENIX NT shall furthermore devote, to the best of its knowledge and capability, its efforts to such duties as it is to carry out. Manifestly gross deviations therefrom may constitute grounds for complaints pursuant to article 6 hereinafter.
5.3 PHOENIX NT’s products are manufactured and its activities carried out in accordance with prevailing standards in respect of dimensions, quality, deviations, tolerances, thickness, et cetera, to be confirmed in writing prior to performance of the assignment if the principal so requests.
5.4 Orders shall be carried out on the basis of specifications stated by the principal, and for which the principal therefore has responsibility. The principal shall be invited to confirm its agreement with the model or with any proof as may have been produced. PHOENIX NT shall where possible make allowance for any belated deviations from such instructions as had been issued by the principal at an earlier stage; product errors having arisen during, after or as a result of making allowance for any such changes shall be for the principal's account and risk. Guarantees are explicitly withheld regarding colourfastness, possible colour deviations and non-compliance with specific requirements formulated by the principal following the latter's (tacit) approval of the design, sample or proof.
6. Complaints
6.1 The principal shall be required within ten days of PHOENIX NT having effected delivery to communicate to PHOENIX NT, accurately and in detail, any objections it may have concerning that which has been supplied, on penalty of forfeiting its entitlement to argue at a later stage that the performance has not been in accordance with the assignment.
6.2 In the event that PHOENIX NT finds the principal's objections to be justified, it shall be entitled, such at its discretion, to re-perform in such manner as had originally been agreed between the parties, make the necessary changes or apply a reasonable price reduction. In this case the principal shall only be entitled to dissolve the agreement and/or file a claim for loss compensation in so far as PHOENIX NT’s shortcoming warrants this.
6.3 The return for any reason whatsoever to PHOENIX NT of goods having been sold may only take place subject to prior written authorisation and shipping or other instructions issued by PHOENIX NT. Transport and all related costs shall be for the principal's account. The goods shall remain for the principal's account and risk at all times.
6.4 Non-observance by the principal of directions or instructions (for use) with respect to PHOENIX NT’s [performance?] shall discharge PHOENIX NT of any liability whatsoever. Any damage caused by any act or omission or any other behaviour on the part of the principal qualifying as incompatible with PHOENIX NT’s directions or instructions shall be fully reimbursed to PHOENIX NT.
7. Liability
7.1 PHOENIX NT shall only be obliged to compensate loss or damage caused by any act or omission on the part of PHOENIX NT, its staff or other persons having been involved in the implementation of the agreement, which loss or damage shall reasonably qualify for compensation in the given circumstances including the nature of the liability or the legal relationship in force between the parties, for example. PHOENIX NT shall as yet not be obliged to compensate losses in excess of the price paid by the principal pursuant to the then prevailing agreement.
7.2 The principal shall indemnify PHOENIX NT against any third-party claims for compensation of damage or loss for which the principal rather than PHOENIX NT has liability.
8. Passing of risk in relation to products
From the moment the products leave any of the warehouses of PHOENIX NT or other locations where they had been stored in anticipation of being shipped to the principal, such products shall be for the principal's risk, and the principal shall then have responsibility for all direct and/or indirect damage or loss in relation to such products.
9. Payment
9.1 Only 100% prepayments are accepted from natural persons.
9.2 Payments shall be made at PHOENIX NT’s Apeldoorn office or by transfer to a bank account as specified by PHOENIX NT. The principal may not unreasonably offset amounts. In so far as such is not separately indicated, all payments shall invariably be made without any discount (free from cheque or other bank-related charges of any nature whatsoever), within 30 calendar days of the date of the invoice. The expiry of the said payment term shall result in default on the part of the principal even without it having been served with a notice of default.
9.3 Complaints concerning invoices shall be required to be submitted in writing to PHOENIX NT within ten days of the date of the invoice, on expiry of which period the principal shall be deemed to have accepted the invoice as correct in so far as no such written objection has been received.
9.4 All amounts payable to PHOENIX NT shall instantly become payable on demand and shall be prepaid as soon as an application for the principal's bankruptcy is filed, the principal files an application to be granted moratorium of payment or the principal is wound up or dies, as well as under all circumstances in which the recovery of PHOENIX NT’s claim could reasonably be jeopardised. In such cases PHOENIX NT shall also be entitled to suspend all activities, order the principal no longer to exercise the rights the latter has obtained pursuant to the agreement or make it impossible for the principal to exercise such rights, [or] recover or remove any goods delivered/sold until or unless, as the case may be, security is provided as per the provisions of article 11 hereinafter.
10. Exceeding of payment terms, measures
10.1 In the event that the principal exceeds the payment term referred to in article 9 herein-before, it shall owe to PHOENIX NT, on any amounts payable to the latter, debit interest in the amount of 1 percent per month on the outstanding amount.
10.2 The principal shall furthermore be obliged to pay to PHOENIX NT any extra-judicial collection costs including the invoices of lawyers [and/or] bailiffs whose services have been enlisted by PHOENIX NT as well as all other collection costs, in the broadest sense. The aforementioned extra-judicial collection costs shall total at least 15 percent of the amount payable to PHOENIX NT by the principal, to a minimum of EUR 150.00 net of value-added tax.
10.3 The foregoing shall apply mutatis mutandis to all costs of extra-judicial measures and legal and/or expert assistance to be incurred by PHOENIX NT in enforcing its rights vis-à-vis the principal.
10.4 In the event of PHOENIX NT being exposed to a currency risk pursuant to its transactions with or for the benefit of the principal, as the case may be, PHOENIX NT shall - on maintenance of any other rights accruing to it - be entitled to full compensation of any currency losses having arisen on expiry of any payment term.
11. Security
11.1 Prior to proceeding with the implementation of the assignment PHOENIX NT shall be entitled, for as long as payment has not yet been effected, to demand from the principal that the latter provide security to the satisfaction of PHOENIX NT in respect of compliance with its obligation. PHOENIX NT shall be entitled at all times to have specific deliveries take place on a cash on delivery basis.
11.2 In the event of the principal's failure to comply, PHOENIX NT shall be entitled in so far as it considers to be appropriate to cancel the agreement in whole or in part while the principal shall then be obliged to fully compensate such loss as suffered by PHOENIX NT as a result while additionally forfeiting to PHOENIX NT a fine, which shall be payable on demand, to a total of 20% of the invoice amount relating to such cancellation. PHOENIX NT shall also have the aforementioned right to cancel plus the said entitlement to loss compensation in all other cases of attributable shortcoming (force major) on the principal's part.
12. Title retention and pledge
The title to any products sold shall continue to rest with PHOENIX NT until such time as the principal has fully satisfied its obligations pursuant to the agreements in question and the related claims vis-à-vis PHOENIX NT. With respect to any other obligations which the principal may have vis-à-vis PHOENIX NT and which may no come under the said title retention, PHOENIX NT may demand from the principal that the latter pledge goods to it, to which pledge the principal shall lend its full co-operation.
13. Additional performance
In the event of PHOENIX NT having returned a greater performance in the implementation of an assignment than it had been initially instructed by the principal, PHOENIX NT shall be entitled to compensation for such additional performance.
14. Industrial/intellectual property
14.1 In the event that no arrangements have been made concerning the acquisition of rights of industrial and intellectual ownership regarding results ensuing from the implementation of an assignment, PHOENIX NT shall reserve the patent right as well as any other industrial and intellectual property rights.
14.2 All drawings, calculations, sketches, technical data and other specific documentation shall furthermore remain the inalienable property of PHOENIX NT.
14.3 The principal shall return such documentation as referred to in the preceding paragraph to PHOENIX NT at the latter's first request.
14.4 No part of what the principal has acquired from PHOENIX NT and/or learned from such documentation as referred to in paragraph 2 of this article may be reproduced and/or publicised by means of printing or photocopying, on microfilm or any other manner whatsoever without the prior written approval of PHOENIX NT.
14.5 In the event of infringement of the provisions of the preceding paragraph the principal shall forfeit to PHOENIX NT a fine, which shall be payable on demand, in the amount of EUR 10,000.00 per individual occurrence or, at the discretion of PHOENIX NT, of EUR 10,000.00 for each week such infringement persists, without prejudice to PHOENIX NT’s right furthermore to demand full compensation.
15. Representation
In the event of the principal acting on behalf of one or more others it shall, without prejudice to such others' liability, have liability vis-B-vis PHOENIX NT as if it were the principal. Return to top
16. Incompatibility between terms and conditions
On preservation of such provisions as set out in article 1 hereinbefore, any incompatibility between provisions of any (procurement) conditions applied by the principal and the present terms and conditions shall be reasonably and fairly, and where necessary through intervention of the courts, removed and resolved in the context of the agreement concluded subject to the present terms and conditions.
17. Competence
Any disputes arising from this agreement or from further agreements by way of implementation hereof shall be brought before the competent court in PHOENIX NT’s residence or, at the discretion of PHOENIX NT, before the otherwise competent court, except where it concerns a Lower Court claim. In the event of PHOENIX NT invoking this stipulation in writing vis-B-vis the principal in connection with a dispute, the principal shall have the option of notifying PHOENIX NT in writing, within five weeks of such date, of preferring the statutorily competent court. The principal's failure to effect such notification enables the dispute to be brought before the court of PHOENIX NT’s choice.
18. Conversion
The nullification or annullability of any provision of these terms and conditions or of agreements to which these terms and conditions apply shall not affect the validity of the other provisions.
19. Applicable legal system
All agreements concluded subject to these terms and conditions shall be governed by Netherlands law, albeit it in so far as possible subject to exclusion of the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, and the Viennese Convention dated 11 April 1980.
Phoenix Nano Technologies
Fuutweg 33
NL-7331 CS Apeldoorn
Nederland
