Term and Conditions - Jansen Furniture

General Terms & Conditions

(Dealership & Purchase)

Definitions
- Seller means PT Jansen Indonesia, who is the manufacturer and supplier of the Products, and/or the group companies of the Seller (as the case maybe).
- Buyer means the person or legal entity concluding a dealer agreement or any other contract with Seller in respect of the Product(s).
- Parties means Seller and Buyer collectively.
- The Product(s) means the product(s) which are the subject of a contract, sale or delivery between the Parties, including (but not limited to) dealer agreements.
- All terms related to the transport and transfer of the Products shall be construed in accordance with the Incoterms 2010.
Scope
- These General Terms & Conditions apply to all offers, quotations, agreements, deliveries, sales and other actions and legal acts on the part of Seller, unless the parties agree otherwise in writing.
- The applicability of any general terms and conditions of the Buyer is expressly denied.
- In the event of contradictions between the provisions of these General Terms and Conditions and the provisions of a specific agreement between the Parties, the latter will prevail.
Offers and Quotations
- Any offer or quotations of Seller is free of obligation and subject to change in price, time of delivery and availability to deliver. The offer or quotation can be retracted at all times by Seller as long as it has not been accepted by the Buyer.
- The offer of quotation can be retracted by Seller even after it has been accepted by the Buyer, in the event that errors in the calculation of the price or other errors require correction. Seller will retract its offer as soon as possible and at any rate within 72 hours of the day upon which the offer is accepted. Seller shall provide the reason(s) for the retraction. In the event of a retraction, Buyer is entitled to the immediate restitution of any funds it has already paid. Seller shall never be bound by obvious errors and/or mistakes in the offer or quotation.
Prices
- Prices mentioned by Seller are exclusive of VAT. Unless otherwise agreed, prices include Seller’s standard packing, but exclude export crating
- Seller will establish the prices at which it will sell the Products to Buyer. Seller retains the right to adjust theses prices at its own initiative with respect to future orders by Buyer.
- Seller is free to establish the prices at which it will resell the Products to its customers. It is preferred however that Buyer shall sell the Products at the recommended resale prices set and provided by Seller from time to time.
- If Seller’s costs incurred in respect of the Product (s) increase in the period between acceptance of the order by Seller and delivery, owing to circumstances beyond Seller’s control, Seller may at its option at any time before delivery give written notice to Buyer of an increase in the contract price equal to the cost increase, and such increased price shall be substituted for the contract price.
- Should no specific trade term be quoted then prices cover delivery “ex works “. Where additional delivery costs of whatever nature are incurred to effect delivery or to meet Buyer’s requirements, such additional costs will be charged to Buyer.
Payments
- All invoices are payable within 14 days from date of invoice. Payments shall be made in the currency specified in Seller’s invoice.
- All Seller’s costs and expenses in respect of collecting overdue accounts shall be reimbursed by Buyer. If Buyer fails to pay Seller in full by the due date Seller shall be entitled, automatically without prior notification, to charge interest at the rate of 2 percent per annum above the current statutory interest at Seller’s country of domicile.
- Buyer is not entitled to suspend or withhold payment of any sums (or parts thereof) after they have become due, by reason of any right of set off or any (alleged) counter claim which Buyer may have, or for any other reason whatsoever.
Delivery, risk and property
- Any delivery date mentioned by Seller is a forecast but shall not be legally binding on Seller.
- If time and place of delivery are not specifically agreed upon in writing, delivery takes place “ex works”.
- If Buyer rejects the delivery or is neglect with the provision of information or instructions necessary for delivery, Seller is entitled to store the product(s) at the expense and risk of the Buyer.
- The risk of the Products will be transferred to Buyer at the time that the Products have been submitted for delivery and transport by Seller. Seller shall have no liability for damages to or missing Products during the transport or during the time that the Products are in customs.
- Unless it is specified that transport is executed for the risk of Seller, an on-board bill of loading, a receipt received for shipment, waybill or other similar document is conclusive evidence of delivery, irrespective of whether the person giving the receipt or the document has the authority from Buyer to do so.
- Buyer will at its own risk and expense obtain any necessary import licenses or other requisite documents and otherwise comply with any applicable laws and regulations concerning the import of the Products, and pay for all applicable customs duties, taxes and costs and charges in respect of the import and resale of the Products.
- Notwithstanding the above, property of the Product (s) shall remain with Seller until it has received payment in full of all sums which are or may become due from Buyer to Seller in respect of any product (s) or services supplied under any contract existing between them, provided that if Buyer sells part of the product (s) to a third party, the proceeds of such sale shall be held by Buyer for Seller’s account until Seller has been paid in full.
- All sales are final and no refund or credit will be offered for returned Product(s) irrespective of whether the product(s) are the subject of a complaint or not, unless Seller has agreed in writing prior to such return and the returns arrive promptly and in good condition (i.e. unopened, not rusted or damaged).
Force majeure
- None of the Parties will be held liable for omissions or will be held to meet its obligations if it is prevented from doing so by war, the unavailability of ships, lorries or other transport, strikes, labour unrest, accident, government bans on import of export of goods or any other cause that cannot be attributed to that party.
Warranties
- Buyer is responsible that Product(s) are being transported, stored, applied and disposed of in accordance with the appropriate product datasheets, material safety data sheets and relevant local legislation at all times.
- Subject to the following provisions, the Seller warrants to Buyer that (a) Seller has good title to the Products and (b) the sale of the Products by Seller does to the best knowledge of Seller not fringe any IP-rights of third parties.
- Seller is not liable for guarantees provided by Buyer hat fall outside the scope of the guarantee scheme of Seller.
- Seller shall be under no liability in respect of any defect to the Products arising from fair wear and tear, or any willful damage, negligence, subjection to abnormal working conditions, failure to follow the Seller’s written instructions, misuse or alteration or repair of the Products without the Supplier’s approval, or any other act or omission on the part of Buyer, its employees or distributors or any third party.
- All other warranties or other terms, express or implied by statue or otherwise, are excluded by Seller to the fullest extent permitted by law.
- Seller shall not be liable in respect of any defects in the Product (s) or any losses or damage resulting there from unless written notice of such defects is given promptly within five (5) days after the defects could reasonably have been discovered by inspection and/or testing of the Product(s), before or after use, and in no event after expiry of their shelf life or later than twelve months after receipt of the Product (s), whichever comes first, even in the event of hidden defects. Buyer shall subject the Product(s) to adequate tests immediately after delivery and/or use as the case may be. Seller shall have no obligation in respect of any claim unless the allegedly defective Product(s) are kept available for inspection by Seller’s representative and Buyer provides the requested substantiation and evidence.
- Subject to the other limitations in this clause, Seller’s liability in respect of defective Product(s), if any, is in any event limited to either a refund to Buyer of the purchase price thereof or, at Seller’s option, a replacement of such Product(s) at their point of delivery.
- Seller’s liability, if any, in respect of failure to deliver the Products in time or at all shall not in any event exceed the amount of any reduction in the value of the Products between the date when they should have been delivered and the date on which they were in fact delivered or when the contract was cancelled, as the case may be.
- In no circumstances shall Seller be liable for loss of profit or other consequential or indirect damages of whatever nature of Buyer arising from (i) any defective products, (ii) failure to deliver the Products in time or at all, (iii) the supply or use of the product(s) or (iv) services rendered by Seller.
Confidentiality
- The Parties are obliged to maintain full confidentiality of all that is laid down in agreements between them. The Parties are also obliged to maintain full confidentiality of all business information of the other party which has come to their knowledge, except (commercial and operational) information that must be disclosed to the customer/potential customer in the context of agreements between the Parties.
- Buyer will not use the business information of Seller for any other purpose than the execution of agreements between them, without the prior written permission of Seller. If the use of the information by Buyer results in intellectual property rights or similar rights, Buyer will transfer these rights and/or claims immediately and unconditionally free of charge to Seller.
- The duties in this article will continue to apply after termination of agreements between the Parties.
Intellectual Property Rights
- Seller is the owner of en/or is entitled to use all intellectual property rights related to the business of Seller and the Products supplied by it, such as trademarks, patents, tradenames and logos of Seller and/or the Products. Buyer is not allowed to perform acts that infringe these trademarks, tradenames or other intellectual property rights vested in or legally used by Seller.
- If Buyer is an authorized dealer of Seller, Seller grants Buyer for the area in which Buyer is active with the consent of Seller, the right, for the duration of the agreement between the Parties, to use the trademarks, trade names, logos and other intellectual property approved by Seller, but only in the context of the sale of the Products and with due observance of the instructions of Seller on the use of these rights, unless otherwise agreed between the Parties.
- Buyer is explicitly not allowed to remove the marks or trade names from the Products, to make changes to them or to affix its own marks to the Products, unless with the prior written consent of the Supplier.
- Buyer will not apply for a patent, or file or register any other similar claim or intellectual property right, anywhere in the world, in relation to the Products or information provided to Buyer by Seller, except with the prior written permission of Seller.
- In case of infringement of the intellectual property rights as referred to in this article 10 by third Parties, Buyer will notify Seller immediately.
Reporting
- Buyer undertakes to report on the number and type of Products sold during a quarter within 30 (thirty) days after the end of that quarter. Buyer is also obliged to provide Seller on a regular basis with all information regarding competition, market direction and trends, customer requests, customer complaints and other relevant information
- Buyer undertakes to keep full and proper books of account and records showing clearly all enquiries, quotations, prices, price changes, transactions and proceedings relating to the Products, and allow Seller, on reasonable notice, access to its accounts and records relating to the Products for the purpose of inspection.
- The Parties will at all times inform each other in a timely manner on changes in rules and regulations applicable in the Area, in so far as these are linked to the Products or the activities of the Dealer.
Miscellaneous
- Parties are independent and act on their own name and behalf. Nothing in these General Terms and Conditions or any agreement between the Parties shall (a) be deemed to constitute a partnership in law between the Parties or any form of relationship entailing joint liability, (ii) constitute either party the agent of the other for any purpose or (iii) entitle either party to commit or bind the other (or any member of its respective Group) in any manner.
- Any agreement concluded between the Parties sets out the entire agreement between the Parties. Neither party has entered into an agreement in reliance upon any representation, warranty or undertaking of the other party, that is not expressly set out or referred to in the agreement. This article shall not exclude any liability for fraudulent misrepresentation.
- Any agreement between the Parties is personal to the Parties and, except (1) to the extent necessary for the collection of outstanding bills through a reputable factoring company or (2) within the Seller’s group of companies, neither party shall without the prior written approval of the other: (a) assign, mortgage, charge or otherwise transfer or deal in, or create any trust over, any of its rights; or (b) subcontract or otherwise delegate the whole or any part of its rights or obligations under the agreement to another person or company.
Applicable law, jurisdiction
- These General Terms & Conditions and all agreements resulting from it will be governed by Dutch law, to the exclusion of the Vienna Sales Convention or any other applicable law.
- Any dispute, controversy or claim arising out of or relating to these General Terms and Conditions or any agreement between the Parties, including its conclusion, interpretation, performance, breach, termination or invalidity, shall in all instances be settled before the competent Dutch national courts, among which shall be the Netherlands Commercial Court in Amsterdam. Seller will also have the right (at its sole discretion) to settle any dispute, controversy or claim before a competent court in the judicial district where Buyer has its registered office or before the Netherlands Arbitration Institute (in case Buyer has its registered office in a country that is a party to the Treaty of New York).