TERMS AND CONDITIONS OF SALE AND DELIVERY FOR RETAILERS. 1. Scope and applicability

Transcription

1 FINAL Helinox Europe B.V._Terms and Conditions of Sale_updated 31July 2018 TERMS AND CONDITIONS OF SALE AND DELIVERY FOR 1. Scope and applicability RETAILERS 1.1 These are the terms and conditions of sale and delivery (the Terms) of the Dutch limited liability company Helinox Europe B.V., a private limited liability company under Dutch law (besloten vennootschap met beperkte aansprakelijkheid) registered with the Dutch Chamber of Commerce with its corporate seat in Amsterdam, the Netherlands (Helinox). 1.2 These Terms apply to all relationships, all agreements, and form part of all contracts of sale, relating to products from Helinox (Products), between Helinox and persons (including natural persons and legal entities) (potentially) buying Products from Helinox (Customers). 1.3 These Terms apply to the exclusion of any other terms and conditions used by the Customer. Helinox expressly rejects any terms purportedly imposed by the Customer. Any agreements, or terms that differ or depart from these Terms shall only be binding if expressly confirmed by Helinox in writing. 2. Contract of sale 2.1 Unless a contrary intention is clearly expressed, quotations, offers or similar communications issued by Helinox or general/season order forecasts, delivery schedules or similar communications issued by the Customer do not qualify as binding offers within the meaning of art. 6:217 of the Dutch Civil Code. 2.2 By issuing a concrete request to deliver a specified quantity of a specified Product (a Purchase Order), the Customer makes an irrevocable offer within the meaning of art. 6:217 of the Dutch Civil Code to purchase the Products specified in the Purchase Order at the price: (a) agreed on between Helinox and the Customer and stated in the Purchase Order; or otherwise as specified in Helinox European price list as updated at the time that the Purchase Order is submitted. This price list is generally made available by Helinox via printed copies or s to individual parties. 2.3 Helinox may, at its complete discretion, accept or decline such an offer. 2.4 If Helinox wishes to accept an offer from the Customer, Helinox will confirm the relevant Purchase Order to the Customer in writing, citing the reference number, within 10 business days. This Confirmation will give rise to a contract of sale under which the goods specified in the Purchase Order and confirmed in the Confirmation are sold by Helinox to the Customer. 2.5 The Confirmation, containing different or additional conditions than the Purchase Order, is deemed to be a new offer and a rejection of the original initial Purchase Order. However, where these different or additional conditions only differ from the Purchase Order on immaterial points within the meaning of article 6:225 of the Dutch Civil Code (ondergeschikte punten), the Confirmation will give rise to a binding contract of sale, unless the Customer objects in writing within 1 business day. 2.6 If Helinox does not send a Confirmation of the Purchase Order to the Customer, or has not commenced steps to fill the order within 10 business days, the Purchase Order will be deemed to have been refused. 3. Orders 3.1 The Customer shall place orders for Products by submitting a Purchase Order to Helinox in writing. Unless agreed otherwise, Purchase Orders shall be placed using and preferably using the Helinox standard order sheet. In any event, Purchase Orders must always specify: (a) (c) (d) (e) (f) (g) (h) (i) 4. Delivery the type of the Products ordered; the quantity of each type of Product ordered; the destination; transport preferences; the preferred time and date of delivery; a reference number (for the specific order); the total net order price (including subtotals for each type of Product ordered) calculated in accordance with cl. 2.1(a) and (or) ; the specific Helinox code for each Product ordered; the person responsible for booking in delivery if this is a requirement of the retailer. 4.1 After Confirmation of a Purchase Order Helinox shall deliver the Products specified in the Confirmation. Helinox reserves the right to make deliveries in instalments.

2 4.2 Helinox is not bound by the desired delivery date as specified in the Purchase Order. Helinox will inform the Customer of the expected delivery date when established by Helinox. 4.3 In the event of delay of the delivery beyond the delivery date as set in accordance with clause 4.2, Helinox shall notify the Customer. The Customer shall give Helinox written notice of default within 3 business days after receipt of this information, and grant Helinox a reasonable deadline to fulfil its delivery obligation. If delivery does not take place before this final reasonable delivery date, the Customer may (partially) cancel ((gedeeltelijk) ontbinden) the Purchase Order in writing, unless delivery takes place before Helinox receives this written cancellation. In the event a Purchase Order is cancelled by the Customer as referred to in the previous sentence, neither party will have the obligation to pay compensation for loss, if any. 4.4 To the extent that nothing to the contrary is provided for in Helinox confirmation of the Purchase Order, delivery shall take place CPT as defined in the 2010 Incoterms. The place of delivery is at a destination as required by the Customer. 5. Price and payment 5.1 After confirming a Purchase Order, Helinox will send the Customer a specified invoice. The Customer shall pay invoices T/T (telegraphic transfer) in advance, unless otherwise agreed in the Confirmation. Payments must be made in accordance with the instructions on the invoice. 5.2 Should the Customer fail to make full payment within the payment term, the Customer will be immediately deemed to be in a state of default (verzuim). Helinox reserves the right to charge default interest at the statutory commercial interest rate (wettelijke handelsrente) until full payment has been received, as well as a fixed fee for compensation of extra judicial collection costs (buitengerechtelijke kosten) in the amount of 10% of the payable amount (with a minimum of EUR 100). 5.3 When a payment is received from the Customer, Helinox may, at its discretion, apply the payment to any amount owing by the Customer, including costs and penalties, any interest due and the principal amount. 6. Retention of title, set off, suspension 6.1 Notwithstanding clause 4, Helinox retains ownership of all Products which it delivers to the Customer until full payment is made by the Customer for the relevant Products, for related services or for breach of contract under any contract of sale concluded between Helinox and the Customer. 6.2 The Customer waives its rights to set off (verrekenen) a debt to Helinox with any potential claims against Helinox, and waives its rights to suspend (opschorten) the performance of any of its obligations under or in connection with any agreement between Helinox and the Customer. 7. Complaints 7.1 The Customer shall inform Helinox of any complaints the Customer receives about the Products, Product labelling or information about the Products immediately and within 48 hours after receipt of the complaint at the latest. 8. Products 8.1 The Customer must not make any modifications to the Products, their packaging or labelling without Helinox prior written consent. 8.2 Notwithstanding cl. 8.1, the Customer may (and, where necessary for compliance with local regulations, shall) supplement the Products packaging and/or labelling with translated versions of the packaging and/or labelling in the relevant local language(s). Such translated packaging and/or labelling must be submitted to Helinox for approval prior to use. The Customer shall be solely responsible for any and all costs in this regard. 8.3 Helinox reserves the right to modify the Products any time at its sole discretion. This right includes the right to introduce new versions of Products as well as to withdraw any Products or any part thereof from the range of Products. 8.4 When the Customer provides information about the Products to its (potential) customers, the Customer shall ensure that it does not provide incorrect or misleading information on the Products to third parties. 9. Resale 9.1 Helinox publishes a non-binding schedule of recommended retail prices for Products (Helinox RRPs). If the Customer intends to resell Products, it is 2/5

3 encouraged to factor the Helinox RRPs into its pricing calculations. 9.2 Products purchased under these Terms must not be resold to buyers outside of the European Union or otherwise offered for resale outside of the European Union without Helinox express prior written consent. 9.3 The Customer shall procure that the same obligations of cl. 9.2 will be assumed by its (potential) customers (nonconsumers) in the event of resale. 9.4 Where the Customer commits a breach of one or more of its obligations under this cl. 9.2 and 9.3, the Customer shall incur a penalty of EUR 25,000 per event, and EUR 2,000 per day (or part thereof) that the breach continues. Such penalty shall become immediately due and payable to Helinox, without the need to first send a notice of default (ingebrekestelling) and applies irrespective of whether or not Helinox suffered any loss as a result of the Customer s breach. This penalty provision operates without prejudice to and notwithstanding any other legal remedy available to Helinox, including but not limited to claims for specific performance (nakoming) or damages (schadevergoeding). Art. 6:92(2) and (3) of the Dutch Civil Code do not apply. 10. Intellectual Property 10.1 The Customer may make use of Helinox name, trademarks and any advertising or marketing materials made available by Helinox for the purpose of promoting and distributing the Products (Helinox IP) within the European Economic Area. The Customer must restrict its use of Helinox IP to this purpose. The Customer must not make any use of Helinox IP if it is not actively engaged in on-selling Helinox products The Customer must not use or register any trademark, domain name or trade name, regardless in what jurisdiction, which is similar to or might dilute any trademark, domain name or trade name of Helinox All intellectual and industrial property rights, including copyrights, related rights, design rights, patents, database rights, trademark rights and domain name(s), and the rights relating to the software or the protection thereof, which may be or are created as a result of or incidentally to the relationship between the Customer and Helinox, are hereby transferred in advance. If and in so far as necessary, the Customer will lend all reasonable cooperation in the transfer of such rights to Helinox. By transferring all intellectual and industrial property rights, the Customer also waives any personal rights and confirms that the (possible) holder of such rights has waived these rights. To the extent that any such transfer is impossible, the Customer shall grant or procure the grant of a licence. 11. Guarantees and liability 11.1 Helinox guarantees that the Products are free from serious defects at the moment of delivery. No other guarantees, whether express or implied, shall exist with respect to the Products Within 3 business days after delivery, the Customer shall inform Helinox in writing of any claims relating to defects, damage or non-conformities of the Products reasonably ascertainable upon inspection of the Products. The Customer shall inform Helinox of all other claims in writing within 6 months from the date of delivery Upon Helinox request and at Helinox expense the Customer shall promptly return Products claimed to be not in conformity or damaged to Helinox for the latter's inspection. Helinox will not accept claims not made in accordance with the requirements and within the period as referred to in this paragraph. In the event that Helinox is liable for the damage or non-conformity of the Products, Helinox will, at its discretion: (a) repair or replace such Products with new Products, or replace any damaged or missing component of such Product, or (c) return the purchase price for the Products to the Customer If the Customer fails to perform its duties under this clause 11, its rights to claim shall be extinguished immediately (verval van recht) The maximum aggregate liability of Helinox is limited to the amount of the invoices sent to the Customer in the 3 calendar months prior to the occurrence of the event(s) that gave rise to the claim, with a maximum of EUR 50,000 per event or series of connected events that gave rise to a claim Helinox shall not have any other obligation or liability to the Customer or any third party in relation to Products that are not in conformity or damaged than those provided for under this clause 11. None of the provisions of this clause 11 shall apply to claims or 3/5

4 liability to the extent that they arise from a wilful act (opzet) or gross negligence (bewuste roekeloosheid). 12. Force majeure 12.1 In addition to article 6:75 of the Dutch Civil Code (BW), Helinox will not incur any liability to the Customer on account of any loss or damage resulting from any failure to perform all or any part of its obligations towards the Customer, to the extent that such failure is due to circumstances beyond the will or control of Helinox (e.g. failure of Helinox suppliers to perform their obligations, power failures, computer failures, breach of security of IT (hardware and software), natural disasters, industrial action, civil or political unrest, government action). 13. Miscellaneous provisions 13.1 Nothing under these Terms shall be deemed to give rise to a distribution relationship, relationship of agency or any other ongoing relationship between Helinox and the Customer. Unless another intention is explicitly confirmed by the parties in writing, all transactions are performed based on individual contracts of sale No act or omission by Helinox shall be interpreted as a waiver of any of its rights under these Terms or under law unless this intention is expressly and unambiguously stated in writing and signed by Helinox and delivered to the Customer A Customer shall not assign its rights under any agreement with Helinox in whole or in part to any third party, without the prior written approval of Helinox. This clause is an exclusion of assignments within the meaning of article 3:83 section 2 of the Dutch Civil Code In the event that these Terms or other documents comprising an agreement between the Customer and Helinox are translated into languages other than English, it is understood that such translated versions are provided solely for the purpose of convenience. In the event of any discrepancies or ambiguity, the English version shall be decisive Any agreement between the Customer and Helinox may be terminated (opgezegd) with immediate effect by either party in writing if: (a) the other party has applied for or has been declared insolvent, bankrupt, has applied for or has been granted a suspension of payments, (c) (d) whether provisional or not, has gone into administration, or has become subject to any comparable regime in any jurisdiction; the other party has wholly or partly lost the right to dispose or make use of its property, irrespective of whether that situation is irrevocable; the other party has offered its creditors a composition outside a bankruptcy, suspension of payments or any other similar regulation in any jurisdiction; or the other party has ceased to exist or has been dissolved Each party shall inform the other party immediately of any (impending) situation as referred to in cl Helinox reserves the right to update or amend these Terms (the New Terms) at any time. If the Customer does not submit a written rejection to the New Terms to Helinox, within 4 weeks after receiving the New Terms, the New Terms will replace the old Terms. Any variations from the old Terms agreed specifically and in writing will not be affected by the New Terms, unless any laws and regulations preclude this. If the Customer rejects the New Terms within 1 month, the old Terms will remain in force unchanged and Helinox will have a right to immediate termination of any agreements between the Customer and Helinox (opzegging). If Helinox terminates any agreement with the Customer in this manner, it will not be liable for damage as a result Any notice or action which is required under any agreement between the Customer and Helinox that is to be made in writing, may be made by . A notice or action made in accordance with this provision is deemed to be effective on delivery Should any of the terms of any agreement between the Customer and Helinox be invalid or unperformable, this shall not affect the validity and enforceability of the other provisions. The invalid provision shall be replaced by a legally valid provision which as closely as possible matches the commercial intention of the invalid provision. 14. Customer running Online Sales 14.1 Where the Customer does not only distribute and/or advertise the Products via stationary trade, but also via an operated and maintained homepage or other distribution channels on the internet such as sales platforms or social media (Online Sales), the special 4/5

5 requirements for online distribution set out under this clause 14 shall apply The Customer s homepage must be of a high quality. In any case, this includes, without being limited to, a quick loading of the homepage. In addition, and in particular, a high quality of presentation of both the individual subpages and the Products as a whole must be ensured. The Customer must exclusively use the image material provided by Helinox. The websites must be user-friendly and provide comprehensive information about each product. This includes at least the information contained in the product catalogues published by Helinox. Any individual sub-pages of the homepage operated by the Customer and featuring Products must contain appropriate links to the entire range of the Products The part of the website where the Products are presented must be clearly distinguished from any other parts of the lower quality products. The Customer must not use the Products for bait and switch purposes or in any other way that could have the effect of damaging the Helinox brand. In addition, the Products must be clearly separated from products of other brand manufacturers in the same or a comparable segment of the Products. measures. The indemnity obligation in clause 14.5 applies accordingly Selling via online auction formats as well as third-party platforms such as "Amazon" or "ebay" on the Internet must meet the high quality standards of Helinox and the Products for presentation and information requirements to the end customers. As such, if the Customer wishes to distribute the Products via such third-party platforms (directly or by linking), the Customer must consult with with Helinox regarding the Product presentation and information requirements, prior to listing any Products on such platforms. 15. Choice of law, choice of forum 15.1 All relationships and all agreements between the Customer and Helinox, shall be governed exclusively by Dutch law All disputes arising out of or in connection with any relationship or any agreement between the Customer and Helinox, shall be submitted to the exclusive jurisdiction of the courts of Amsterdam, the Netherlands The Customer website must provide highly qualified customer service in relation to the Products. This must include a customer hotline which can be reached at any time between 9am and 6pm on weekdays. Contact details for the customer service must be prominently displayed The website must meet all statutory legal requirements for a website, especially those under competition law, telemedia law, consumer law, distance selling and e- commerce law, in particular by the inclusion of an imprint section, any mandatory information (including any mandatory references to consumer rights, price information, etc.), data protection statements, consent to electronic data collection and processing and the inclusion of general terms and conditions. The Customer shall indemnify Helinox against all third-party claims asserted against Helinox due to a breach of the aforementioned obligations. This indemnity obligation does not apply to the extent that the Customer is not responsible for the breach of obligations The above requirements also apply if the Customer informs its customers about its offers by or similar measures. The Customer must comply with the rules of fair competition in the case of sales promotion 5/5