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Conditions of UseOf Present Innovations, with offices in Utrecht,The Netherlands, registered with the Chamber of Trade and Industry of Utrecht, deposited under no. 08094717.
Article 1. Definitions
1. In present Terms and Conditions, "Purchaser" shall be taken to mean every person or body corporate as well as all representatives, attorneys and legal representatives thereof having reached or wishing to reach an agreement with Present Innovations.
2. In present Terms and Conditions, "Consumer" shall be taken to mean every Purchaser who is a natural person and not acting in the exercise of a profession or business.
Article 2. Applicability
1. Unless otherwise expressly agreed in writing by the parties, all offers, agreements and the implementation thereof shall be exclusively subject to present Terms and Conditions.
2. Additions to and/or deviations from present Terms and Conditions must be expressly agreed in writing.
3. Unless expressly otherwise determined, the Consumer shall also be subject to all stipulations in present Terms and Conditions.
Article 3. Offers and agreements
1 Unless expressly otherwise agreed, all offers made by Present Innovations shall at all times be non-binding.
2. An agreement between Present Innovations, and Purchaser shall only be deemed to exist if and after an order is confirmed by Present Innovations in writing, or in whole or in part issued for implementation, by Present Innovations.
3. Upon entering into the agreement, Present Innovations shall be entitled to demand security for the pecuniary compliance with said agreement. Refusal by Purchaser to provide the required security shall entitle Present Innovations to refuse the order.
Article 4. Prices
1. All prices and charges shall be in Euro, unless indicated otherwise.
2. The prices shall be based on prices of materials, wages, social and fiscal charges, import rights and transport costs applicable at the moment of offer. If due to price rises in raw materials, manufactures, semi-manufactures, components, transport costs, wages, insurance premiums, fiscal charges, import rights, exchange rates, etc., these prices have risen since the offer date, Present Innovations shall be entitled to accordingly increase the price.
3. The stipulations intended in the previous paragraph shall also apply if these cost price raising factors were foreseeable, upon the agreement date.
4. However, if the cost price rise as intended in paragraph 2 exceeds 15%, Purchaser shall be entitled to cancel the order within 3 days following the date on which Purchaser was notified thereof.
5. If Purchaser is a Consumer, and the price rises as intended in paragraph 2, Consumer shall be entitled to terminate the agreement within 3 months after having entered into said agreement.
Article 5. Delivery
1. Unless otherwise expressly agreed, stated delivery times shall never constitute deadlines. Therefore, in the case of late
delivery, Present Innovations must be notified in writing of default, and offered a final delivery date.
2. Present Innovations shall have complied with its obligation to deliver by offering the goods on one occasion. The notice of receipt signed by the Purchaser or his representative shall act as full proof of delivery. In the case of non-purchase, storage and other costs shall be at the account of Purchaser.
3. Should Purchaser fail to take any action required of him for facilitating the delivery, the goods shall be at the risk of Purchaser from the moment of readiness for dispatch or
Article 6. Reservation and transfer of ownership
1. The delivered goods shall remain the property of Present Innovations for such time as Purchaser has not fully complied with all payment and other obligations to Present Innovations.
2. Purchaser shall not be entitled to pledge or transfer in ownership the goods delivered, or to issue the goods to third parties for use, until he (Purchaser) has met his payment and other obligations to Present Innovations. Goods supplied by Present Innovations according to paragraph 2 subject to reservation of ownership may only be sold on in the course of normal business.
3. Should Purchaser fail to comply, not comply in time or not comply adequately with any obligation arising from the agreement, or should any other circumstance as intended in article 7 sub 1 occur, Present Innovations® shall be entitled without legal intervention to repossess the goods (or have them repossessed). In this connection, Purchaser shall irrevocably grant Present Innovations access to the area(s) in which the goods are located, and shall undertake to provide full assistance to Present Innovations in default whereof Purchaser shall be subject to a fine of € 45,38 per day.
4. If Present Innovations has actually repossessed the goods, the agreement shall be terminated in accordance with the stipulations of article 7 paragraph 1.
5. In so far as not (yet) his property, Purchaser shall be obliged to immediately inform Present Innovations of any rights claimed by thirdparties to the goods delivered by Present Innovations or if any circumstance as intended in article 7 paragraph 1 should occur. If it later proves that Purchaser failed to comply with this obligation, he shall be subject to a fine of 15% of the amount owed by him to Present Innovations, excluding VAT, with a minimum of € 45,38.
Article 7. Cancellation and termination of agreement
1. Present Innovations shall retain the right to terminate the agreement with Purchaser, without legal intervention, if Purchaser:
a. applies for moratorium or bankruptcy, is declared bankrupt, or is placed in receivership;
b. fails to comply or does not comply adequately or in good time, and after first being served notice of default of payment by Present Innovations to pay within a reasonable further period.
c. decides to liquidate and/or close down his business;
d. loses free control over his assets, or, if Purchaser is a natural person, is put in ward, or dies.
2.In the case of termination as intended hereinabove, all demands upon Purchaser shall be immediately due, and Present Innovations shall further be
entitled to demand full compensation for damage, loss of profit and/or interest foregone.
3. The item "loss of profit" shall be at least 15% of the agreed price, with a minimum of € 45,38 (excluding VAT), in the absence of proof the contrary; the item "interest foregone" shall be set at the legal interest rate.
Article 8. Transfer of risk
1. All risks of transport of goods to be delivered or delivered shall be born by Purchaser in relation to both direct and indirect damage, unless otherwise expressly agreed. If Purchaser is a Consumer, and the goods are delivered to Purchaser/Consumer, the goods shall only be at the risk of Purchaser from the moment of delivery.
2. Without prejudice to the stipulations of the previous paragraph, from the moment of delivery, the goods delivered by Present Innovations shall be at the risk of Purchaser.
Article 9. Guarantee
1. Unless otherwise agreed in writing, in the absence of any factory and/or wholesale guarantee, no guarantee shall be issued for the goods delivered.
2. Guarantee stipulations shall apply exclusively in the case of correct use of the goods delivered, and on condition that they are used in accordance with the instructions and specifications issued to Purchaser.
3. Any guarantee obligation shall lapse, if in connection with the service or goods provided, Purchaser:
a. himself makes alterations to the goods delivered, or has such alterations made;
b. uses the goods for purposes other than those normally intended;
c. has handled and/or maintained the goods incorrectly.
4. If Purchaser is a Consumer, without prejudice to the stipulations of this article, the legal stipulations shall apply in relation to the obligations of Present Innovations.
Article 10. Liability
1. Present Innovations shall accept liability for damages resulting from faults in goods delivered for which Present Innovations is liable, in so far as said liability is covered by its insurance, up to the amount of the payment made by the insurance.
2. Should the insurance fail in any case to make payment, the liability of Present Innovations shall be limited to the invoice amount.
3. If Purchaser fails in good time to provide Present Innovations with all cooperation, data or information considered vital or useful by Present Innovations® for the implementation of the deliveries, compensation or any other right may never accrue to Purchaser in the case of non-compliance with the agreement by Present Innovations.
4. Present Innovations shall not be liable for technically unavoidable deviations in quality, quantity, colour, size and finishing, etc. permitted in the industry; such deviations shall therefore grant Purchaser no right to refuse the goods.
5. The liability limitations intended in this article shall not apply in so far as the damage results from deliberate action or gross negligence on the part of Present Innovations or its management employees.
6. If Purchaser is a Consumer, the legal stipulations shall
constitute the liability of Present Innovations.
Article 11. Payment
1. Unless otherwise agreed in writing, all payments must be made COD or within eight days after the invoice date, either in cash or to the bank or giro bank account indicated by Present Innovations.
2. All payments must be made without set-off. Purchaser may not defer his payments, for any reason whatsoever.
3. If Purchaser is a Consumer, the stipulation of the previous paragraph shall not apply.
4. If Present Innovations has not received the invoice amount from Purchaser within the period of 8 days, Purchaser shall owe interest at the statutory rate, applicable for the time Purchaser remains in default, whereby time is calculated in full months.
5. If payment of an installment is not received within 8 days following the invoice date, and if Present Innovations then takes legal measures aimed at obtaining payment from Purchaser, Purchaser shall be obliged to reimburse all (extra) judicial collection costs to be made by Present Innovations set at at least 15% of the invoice amount to be paid (or part thereof) with a minimum of € 68,07 without prejudice to any legal costs owed by Purchaser in accordance with a legal judgement.
6. All payments made by or on behalf of Purchaser shall first serve to repay interest and costs due, and subsequently to settle the longest open invoices, even if Purchaser states that payment relates to a more recent invoice.
7. If Purchaser remains in default of payment of a part delivery or phase of delivery, Present Innovations shall be entitled to delay any orders or phases still to be implemented by the period during which Purchaser leaves a due (part) invoice unpaid, without prejudice to the right of Present Innovations to definitively terminate the order(s) following notice of default, and to require payment of all amounts demandable by Present Innovations up to that moment, without prejudice to the right of Present Innovations to claim compensation in accordance with the stipulations of article 7.
Article 12. Force majeure
1. Force majeure shall be taken to mean a situation arising from extraordinary circumstances such as: hold-ups due to frost, strikes, company occupation, fire, traffic hindrances or transport problems, lack of raw materials and/or manufactures, mobilisation, state of seige, riot or revolt, import or export hindrances and other government measures or instructions, and any other circumstance over which Present Innovations can reasonably exercise no influence, in which Present Innovations is unable to implement the order in accordance with agreements reached.
2. In the case of force majeure, Present Innovations shall be entitled
without legal intervention either to delay for the duration of the situation of force majeure, or to terminate the agreement, without Present Innovations being obliged to pay any compensation or fine to Purchaser.
3. In the case of a delay in implementation of an order exceeding 3 months, Purchaser shall also be entitled to terminate the agreement, unless the specific circumstances of the case justify a shorter period.
4. Upon termination as intended hereinabove, Present Innovations shall be entitled to demand payment for all goods delivered/services provided, up to that time, and Present Innovations shall not be obliged to pay any compensation or fine to Purchaser.
Article 13. Complaints
1. Purchaser must examine the goods (or have them examined) on delivery, or as soon as possible thereafter. Complaints relating to visible faults shall only be dealt with if notified to Present Innovations within 8 days of receipt of the goods.
2. Complaints relating to non-visible faults shall only be dealt with if notified to Present Innovations within 8 days after discovery, but at the latest within 14 days of delivery.
3. If Present Innovations validates the complaint, Present Innovations shall be given the necessary time to take the measures it deems necessary, or to replace the rejected goods with others.
4. Complaints shall not be dealt with if discovered that third parties have altered or repaired the goods, unless such is
carried out with the previous knowledge of Present Innovations and in emergencies, where it was impossible for Purchaser to inform Present Innovations thereof, but where he nevertheless immediately informed Present Innovations of the emergency.
5. Complaints relating to (part) invoices must be notified to Present Innovations at the latest within seven days of dispatch date.
6. Following expiry of the periods intended hereinabove, Purchaser shall be considered to have approved the goods/services provided, or the invoice. Complaints will then no longer be dealt with by Present Innovations.
7. Complaints shall not release Purchaser from his obligation to pay in good time, in accordance with article 11.
Article 14. Brand name and tradename
1. Without express written permission from Present Innovations, Purchaser shall be expressly forbidden to use the tradename, brand name and logo employed in trade by Present Innovations.
2. In the case of permission as intended paragraph 1, Purchaser shall strictly follow all instructions from Present Innovations.
3. In the case of breach of this article, Purchaser shall forfeit a fine of € 22.689 per breach, without prejudice to the right of Present Innovations to demand full compensation.
Article 15. Returns
1. Without prior written approval from Present Innovations, returns shall not be permitted, and is only possible within 8 days of delivery.
2. The transport costs for returning goods are to be payed by sender. Present Innovations only refunds the value of the returned goods.
3. Should returns be made without permission from Present Innovations, all costs resulting therefrom shall be at the account of Purchaser.
4. Returns without permission from Present Innovations shall never release Purchaser from his payment obligations.
5. In the case of return or cancelation, the amount paid to Present Innovations will be returned to the customer after receiving the goods back. Goods have to be returned to the adres specified by Present Innovations.
6. In the case of unwanted products these must be returned in the same condition that they were despatched to you and must be unused. Any damage or loss to either the product, packaging or the documentation may affect the amount of refund made.
Article 16. Applicable law
All agreements entered into with Present Innovations shall be subject to Dutch law. Applicability of the UN Sales Convention (Vienna, 1980) is excluded.
Article 17. Disputes
1. If the court is competent, all disputes arising from or relating to an agreement with Purchaser shall exclusively be settled by the competent court in Amsterdam, subject to the competence of Present Innovations to submit the dispute to the court competent in the place of residence or establishment of Purchaser.
2. If Purchaser is a Consumer, paragraph 1 shall not apply. In that case, the legal stipulations determine competence.
Utrecht,The Netherlands, Januari 2004