General Terms and Conditions of B.V.

General Terms and Conditions of Sale and Delivery – V1.3 01/2021

  1. Preamble
    1. These Terms and Conditions of Sales and Delivery (hereinafter General Conditions) shall apply to all sales and deliveries of goods and/or services by B.V. (hereinafter Zepp) and shall rule any relation between Buyer and Zepp. The Buyer’s General Terms and Conditions shall not apply; Zepp hereby expressible rejects said Buyer’s Terms and Conditions.
    2. Any deviations and amendments to contracts and these General Conditions shall only be valid with approval in written form.
    3. In the event of any conflict between the agreement reached between Zepp and the Buyerand these General Conditions, the provision of the agreement will take precedence.
  2. Offers and Agreement
    1. As a general rule, offers issued by Zepp are non-binding.
    2. Provisional agreements and orders are binding for the Buyer.
    3. All agreements require Zepp’s written acceptance. The same shall apply to any amendments, changes or side agreements.
    4. A composite price statement does not oblige Zepp to perform part of an order at a corresponding proportion of the stated price.
    5. Zepp’s written acceptance of order shall be authoritative for the scope of delivery and the service to be rendered.
  1. Pricing
    1. Our stipulated prices shall be in Euro, on EXW (Incoterms 2010) basis and are net prices excluding VAT (even if not separately shown) and other government levies and taxes on sales and deliveries.
    2. Packaging costs will not be included in the price and will be charged separately to the Buyer.
    3. Where there are more than 8 weeks between contract conclusion and agreed delivery date, we shall be entitled to make corresponding price adjustments in the event of increases in material prices, wage costs or energy prices.
  1. Delivery
    1. Unless otherwise agreed, delivery shall be made EXW, Incoterms 2010.
    2. The delivery period shall begin in conclusion of the contract, but not prior to the provision of any documents, permits and approvals to be furnished if necessary, by the Buyer or prior to the supply of other objects or receipt of any agreed down payment.
    3. The scope of delivery shall be determined by the respective contract.We reserve the right to make changes to the delivery item due to technological improvements or to legal requirements, providing such changes do not alter the delivery item substantially and the Buyercan reasonably be expected to accept them.
    4. Without prejudice to other clauses in these conditions regarding prolongation of the term of delivery, the term of delivery is prolonged for the duration of the delay which arises on the side of Zepp when the Buyer has not met some obligation resulting from the agreement or has not cooperated as could be demanded from him with respect to the performance under the agreement.
    5. Delay in delivery shall not entitle the Buyer to terminate the agreement completely or partly, unless such delay exceeds 18 weeks or Zepp indicates that the delay will exceed 18 weeks. In case of such 18 week delay or indication the Buyer shall be entitled to terminate the agreement in accordance with section 10.2 by notice in writing to Zepp. Unless the Buyer exercises his right to terminate the agreement, delay in delivery – for whatever reason – shall not entitle the Buyer to perform work or to have work performed under the agreement without the Court’s leave.
  1. Intellectual Property Rights
    1. Any data or information, including offers, cost estimates, conceptual designs, drawings, calculations, designs, models, software, tools and other documents produced or provided by Zepp shall remain our property even if costs have been charged in such respect. The intellectual property of the information contained within same or based upon methods of production and construction, products etc. shall remain exclusively reserved to Zepp, even if costs have been charged in such respect. These documents may be made accessible to third parties only with our prior written consent.
    2. Information provided in catalogues, illustrations, drawings, data on size and weight, etc. are only binding if and insofar they are explicitly laid down in an agreement signed by the parties or a confirmation of the order signed by Zepp.
    3. Where items are produced according to the Buyer’s drawings, models, samples or other documents, the Buyer shall warrant that third-party property rights are not infringed and indemnifies Zepp against any such claims of third-parties.
  1. Confidentiality
    1. Any data or information, including offers and its terms, cost estimates, conceptual designs, drawings, calculations, designs, models, software, tools and other documents produced or provided by Zepp, shall remain strictly confidential and may be used by the Buyer only for the purpose for which this information was supplied.
    2. The Buyer is obliged to hold in strict confidence and not to disclose to any third parties any data or information received.
  1. Terms of Payment
    1. Unless expressly agreed otherwise in writing, payment shall be effected in Euros and invoices shall be payable within 14 days of date of issue.
    2. All payments shall be made without deduction, discount or set-off in the manner to be decided by Zepp.
    3. If the Buyer does not pay within the period agreed upon, the Buyer is considered in default by right and the amount that the Buyer owes on account of the agreement shall become immediately due and payable. Zepp may without any notice of default charge interest, counting from the expiry date, at a rate of 3 points above the legal interest in force in the Netherlands, as meant in Article 6:119a and Article 6:120 Civil Code (“Burgerlijk Wetboek”), as well as all judicial and extrajudicial costs in connection with the claim.
    4. In the event of the Buyer being liquidated, declared bankrupt or granted suspension of payment, the claims of Zepp become immediately due and payable.
  1. Retention of Title
    1. Zepp shall retain title to the delivery items until payment therefore has been made in full.
    2. Where appropriate Zepp shall have the right of unhindered access to the product. The Buyer shall give all cooperation to Zepp in order to provide it with the opportunity to execute the retention of ownership as stated in previous paragraph by taking back the product, dismantling included.
    3. The Buyer is not authorised to pledge or encumber in any way the goods covered by retention of title.
    4. The Buyer is obliged to insurance goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as vandalism and theft and to issue the insurance policy for inspection on demand.
    5. In case the Buyer breaches the agreement, particularly in the case of delay in payment, we shall be entitled to demand that it surrenders the delivery items and/or to rescind the agreement.
  1. Force Majeure
    1. If and insofar Zepp fails to meet its obligations arising from the agreement in full, in part, or in time due to force majeure, it shall be entitled to rescind the agreement concerned without owing damages as a result, or to suspend the obligations arising from the agreement in question for a reasonable period.
  1. Termination
    1. As a consequence of a cancellation or the termination of the agreement by the Buyer, the full amount that the Buyer owes on account of the agreement shall become immediately due and payable.
    2. If the agreement is cancelled or terminated based on a delay in delivery in accordance with 4.5 of these General Conditions, the Buyer shall compensate Zepp for the goods already delivered and the work executed up to the moment of cancellation of the agreement.
    3. Zepp is authorised to suspend compliance with its obligations or to dissolve the agreement if:
    4. The Buyer fails to meet the his contractual obligations in part or in full.
    5. After entering into the agreement, Zepp becomes aware of circumstances that give Zepp good grounds to presume that the Buyer will not meet his obligations. If there are good grounds for presuming that the Buyer will only meet his obligations in part or not adequately, the suspension shall only be permitted if justified by the shortcoming.
    6. Upon entering into the agreement the Buyer was required to furnish security for meeting his contractual obligations and has failed to provide that or sufficient security.
    7. Zepp is further authorised to dissolve the agreement or have it dissolved if circumstances arise of such a nature that compliance with the agreement is no longer possible or can no longer be required according to the standards of fairness and equity or if circumstances arise of such a nature that the agreement cannot reasonably be left in effect in unamended form.
    8. If the agreement is dissolved, the claims of Zepp on the Buyer shall become immediately due and payable. If Zepp suspends compliance with its obligations, it retains its claims by law and under the contract.
    9. Zepp reserves the right at all times to claim compensation for damages.
  1. Warranty
    1. Zepp only warrants that the delivered goods comply with the specifications and characteristics as explicitly agreed in writing and that they are of good material and workmanship. Any other warranties, unless otherwise agreed, are excluded. This warranty period shall start upon the passing of the risk of the goods (in accordance with the Incoterms agreed upon) and shall end at the expiry of a period of 12 months.
    2. In general, Zepp assumes no liability for a fitness for a specific purpose. The Buyer will extensively test the goods delivered for the purpose intended, before marketing of Buyer’s products containing the goods delivered. Unless otherwise agreed in writing, for goods named or marked by Zepp as prototypes or having a sample status, Zepp does not assume any warranty or liability. Because of the product status of these goods, it shall not be held liable for direct or indirect damages, of whatever kind, arisen at the Buyer and/or third parties insofar as these are not with intent or the result of gross negligence.
    3. The Buyer shall inspect the goods delivered immediately upon receipt for defects and conformity with the contract. Defects recognisable during an incoming inspection performed in line with the standard of a prudent business man shall be notified immediately, at the latest however, within 10 business days after receipt of the goods. Other defects must be notified immediately after discovery, however not later than 10 days after discovery within the limits of Section 11.1.
    4. If the delivered goods have a defect, the Buyer shall be entitled to an immediate rectification by
    5. Zepp, who at its sole discretion, shall arrange for a replacement delivery or repair as soon as
    6. reasonably practicable. If such remedies are not successful, the Buyer shall be entitled to refuse
    7. acceptance of the defective good and to withdraw from the agreement for the delivery of the defective
    8. Any replaced goods shall pass again into the ownership of Zepp.
    9. The Buyer, with regard to defective goods, has no other rights to remedies or claims than expressly stated in this warranty section of these General Conditions.
    10. Defects caused or based on natural wear and tear, incorrect assembly, instructions of the Buyer, as well as minor divergences from the agreed quality shall, in particular, but not limited, be excluded from the warranty and liability.
    11. For any defects notified erroneously, Zepp shall be entitled to receive reimbursement from the Buyer for any expenses incurred.
    12. Any changes and or modifications to the goods by the Buyer or any third parties shall void the warranty.
  2. Limitation of Liability
    1. Any claims of the Buyer other than those expressly stated in these General Conditions, regardless of the legal grounds, are excluded (in particular, without limitation, any claims as to indirect or consequential damages). This does not apply insofar Zepp can be reproached with wilful intent or gross negligence or unless such liability is mandatory according to the provisions of the applicable law. Any claim for damages shall, however, be limited to damages that are typical for the agreement and foreseeable at the time the agreement is entered into.
    2. The Buyer indemnifies and holds Zepp harmless against any and all claims of third-parties related to or arising from the agreement implemented.
  3. Applicable Law and General Provision
    1. All agreements to which these conditions fully or partly apply shall be governed by the law of the Netherlands exclusively. The applicability of the Convention on the International Sale of Goods (Vienna Convention) is excluded.
    2. All disputes arising shall be subject to the competent jurisdiction and courts of the Hague, the Netherlands.
    3. All agreements and contracts require the written form.
    4. If for any reason, any provision of the General Conditions becomes void or is set aside, it shall not affect the enforceability and validity of the remaining clauses.