1.1 The present General Conditions of Sale and Supply (“GCS”; version as available at www.dksh.com/nlen/home/about-us/dksh-benelux on the date of confirmation by DKSH) shall govern all orders placed with DKSH Benelux BV (“DKSH”) for products (“Products”) or services (“Services”), whether or not customized, to the exclusion of all other terms. Deviations from these GCS – in particular any application of the purchasing terms and conditions of customers of DKSH (“Customers”) – require DKSH‘s explicit written acceptance. Supply of Products, provision of Services or acceptance of payments without reservation shall not constitute DKSH’s acceptance of conditions varying from these GCS.
2. Offers / contracts
2.1 Queries of DKSH, even if designated as offers, are not binding and shall be understood as invitations to make an offer.
2.2 A contract shall only be formed and enter into force upon the issue of DKSH’s written order confirmation (including e-mail) or the execution of an order by DKSH.
2.3 No order may be cancelled unless DKSH consents to such cancellation in writing (including e-mail).
2.4 If the Customer requests short term delivery/performance to which DKSH agrees, the Customer accepts that the invoice together with these GCS shall form the basis of the respective contract.
3. Purchase price / payment
3.1 Unless otherwise agreed, all prices quoted by DKSH shall be understood in the currency as specified in the respective contract between Customer and DKSH and net EXW (Incoterms as in force at the time of conclusion of a contract). All prices for Services shall be as provided in the contract.
3.2 Value-added tax shall be payable separately in the statutory amount in effect on the invoice date.
3.3 The prices do not include additional charges, e.g. for packing, transport, freight or customs duties, which may be charged in addition to the price quoted.
3.4 DKSH reserves the right to modify prices before shipment in case of substantial changes to the respective basis of calculation (in particular cost of materials and work as well as exchange rate fluctuations etc.) between conclusion of a contract and the agreed date of delivery. The Customer will be informed about such price changes, if any, as soon as possible.
3.5 Unless otherwise agreed by Customer and DKSH in writing, the Customer shall effect payment to DKSH within 30 (thirty) days of the date of invoice (“Due Date”), without any right of set-off or counterclaim by Customer.
3.6 If payment has not been received by the Due Date, late interest shall be applied automatically without prior notice at a per annum rate of 8% above the prevailing European Central Bank’s base rate, from the Due Date until payment in full has been received. DKSH also reserves the right to file further claims for losses incurred through the payment default e.g. lawyer costs, administration fees etc.
3.7 Notwithstanding anything to the contrary herein or in a contract between DKSH and the Customer, DKSH may (a) treat any contract as repudiated and/or suspend deliveries of Products and/or performance of Services without liability to Customer, (b) claim damages from Customer, and (c) accelerate and make immediately due the payment of any outstanding sums in case of the Customer’s bankruptcy, insolvency, moratorium, reorganization or any other situation which, in DKSH’s sole discretion, adversely affects the financial position of the Customer.
4. Transfer of benefits and risks
4.1 The transfer of benefits and risks to the Costumer shall occur according to the provisions of the respective contract and the Incoterms as specified therein.
5.1 DKSH will use reasonable endeavors to deliver Products and/or perform Services by the dates set forth in the relevant contract, but such dates shall be treated as approximate only. DKSH shall notify Customer as soon as practicable in case of delay.
5.2 Customer is obligated to accept deliveries regarding orders made even if the respective deliveries occur with delay. Customer shall have no right to cancel the respective contract and/or demand damages.
5.3 Unless otherwise agreed by the parties in writing, partial shipments or partial deliveries are permitted.
5.4 Discrepancies in quantities of up to 10%, calculated on the basis of the entire quantity to be delivered and not the individual partial quantities actually delivered, shall be permissible.
5.5 If Customer fails to accept delivery of Products, DKSH may in particular, but not exclusively (i) store Products and charge Customer for the costs of storage, or (ii) upon reasonable notice to Customer, sell Products at the price readily available and charge Customer for any difference between the contract price and the price actually realized, plus storage and selling costs.
6. Retention of title
6.1 Products sold by DKSH remain DKSH’s property until DKSH’s claims for payment and other rights against the Customer resulting from any contract within the framework of the business relationship between DKSH and the Customer have been satisfied (“Reserved Goods”). Costumer shall support DKSH with all measures necessary to protect ownership of DKSH; by concluding a contract, Costumer in particular allows DKSH to carry out registrations and reservations in public registries, books and the like according to the applicable laws of a country and to comply with all respective formalities at the cost of the Costumer. By agreeing to these GCS, Costumer consents upon request to execute and furnish to DKSH any and all documentation necessary for the perfection and maintenance of DKSH’s security interest in the Reserved Goods.
6.2 For as long as a Retention of Title is in force, Customer shall handle the Products in such a way that they remain identifiable as DKSH’s property. Costumer shall maintain the Products and, following delivery, insure them against all customary risks, both at its own expense.
6.3 In the event of any failure on the part of Customer to pay DKSH on time, DKSH reserves the right of immediate repossession of all Products delivered. Customer hereby grants DKSH and its employees, agents or subcontractors the irrevocable right to enter any and all premises in which Products are located, without prior notice, for this purpose.
6.4 If the Customer processes, combines or mixes the Reserved Goods with other goods, DKSH acquires joint title pro rata, to that part of the goods representing the invoiced value of the Reserved Goods in relation to the total value of the other goods that have been processed, combined or mixed.
6.5 If the Reserved Goods are combined or mixed with products of the Customer or of any third party to a new product of which the Reserved Goods represent an ancillary part, the Customer hereby and forthwith assigns all its rights with regard to such new products to DKSH. If the Customer combines or mixes the Reserved Goods with products of any third party to a new product in return for compensation, the Customer hereby and forthwith assigns to DKSH its right to compensation against such third party.
6.6 The Customer shall be entitled to resell DKSH’s Reserved Goods in the ordinary course of its business subject to DKSH’s retention of title. If, upon such resale, the Customer does not receive the full purchase price in advance or upon delivery of such goods, the Customer shall agree on retention of title with its customer in accordance with these conditions. The Customer hereby and forthwith assigns to DKSH its claims arising from such resale and its rights arising from the said agreement on retention of title. Upon DKSH’s request, the Customer shall give notice of such assignment to its customer(s) and provide DKSH with all information and documentation necessary to enforce DKSH’s rights against those customers. Notwithstanding such assignment, the Customer shall be entitled to collect the claims arising from such resale as long as the Customer fulfils its obligations and liabilities towards DKSH.
6.7 Should the total amount of security interests granted to DKSH exceed the total amount of DKSH’s claims, DKSH shall, upon Customer’s request, release individual securities which DKSH deems appropriate. DKSH’s invocation of retention of title shall not imply withdrawal from the pertaining contract, unless DKSH expressly issues prior written notice of this.
7. Packaging material
7.1 DKSH shall not take back packaging and transport material unless a legal duty to do so exists under applicable law.
7.2 Customer agrees to dispose of the packaging material at its own expense.
8.1 Immediately upon delivery of Products and on completion of performance of Services, Customer shall inspect the Products/Services for defects and deficiencies.
9. Complaints / Notification of defects
9.1 Customer must notify DKSH of any complaints about the delivered Products and/or Services, in particular of any shortages or defects, promptly upon delivery and in no event later than fourteen (14) days of delivery of Products and/or performance of Services or, in case of hidden defects, immediately after their discovery and at the latest within six (6) months of delivery of Products and/or performance of Services. In case of noncompliance with this provision, the Products and Services are deemed to be approved and accepted by the Costumer and all rights and claims related to such Products and/or Services shall be deemed waived.
10. Customer’s rights in case of defects
10.1 Subject to the limitations on its liability set out herein, and unless otherwise agreed in writing, DKSH warrants that the Product shall comply with the specifications provided in the relevant contract. DKSH warrants that the Services shall be performed with reasonable skill and care. SUCH WARRANTIES ARE PROVIDED TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. A warranty of DKSH shall be excluded in particular in case of defects or deficiencies of the Products delivered due to (i) non-authorized, inappropriate or improper use of Products by the Costumer or third parties, or (ii) negligent application of the Products by the Costumer or third parties, or (iii) other reasons beyond the control of DKSH.
10.2 Where a valid and timely claim in respect of Products or Services is based on a breach of the warranty set forth in clause 11.1 and is submitted to DKSH in accordance with clause 10, DKSH may, at its discretion, replace, repair, re-perform or modify the Products or Services or any part thereof, or refund the full or partial price thereof, as applicable. All further claims of a Costumer, including in particular any sort of damage claims, are excluded as far as permissible under applicable law.
10.3 Any return of Products to DKSH in connection with a warranty claim can only be done upon DKSH’s prior written permission and respective instructions. Shipping costs are to be paid by Customer. Any return of Products shall occur for the account and risk of the Customer.
11. Limitation of liability
11.1 All kinds of breaches of contract and their legal consequences as well as all claims of Costumers, irrespective of the legal grounds they are based upon, are exclusively controlled by these GCS.
11.2 IN NO EVENT SHALL DKSH NOR ANY OF ITS AFFILIATES OR EMPLOYEES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO ANY CONTRACT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN ANY EVENT DKSH’S MAXIMUM CUMULATIVE LIABILITY TO CUSTOMER SHALL BE LIMITED TO THE INVOICE VALUE OF THE GOODS SUPPLIED AND/OR SERVICES RENDERED UNDER THE RELEVANT CONTRACT.
11.3 This exclusion of liability shall not be valid as far as it is contrary to mandatory law.
12.1 The Customer shall treat all Confidential Information (as defined below) strictly confidential and shall not disclose Confidential Information, or cause or allow it to be disclosed, to any third party or use Confidential Information for any purpose other than reasonably necessary in order to fulfill its obligations under these GCS or a contract between DKSH and Customer. Customer shall disclose Confidential Information only to those of its officers and employees who need to know Confidential Information in connection with the fulfillment of these GCS or a contract between DKSH and customer and who are bound by confidentiality obligations at least as restrictive as those contained in this clause. In any event, Customer remains liable for any breach by its officers or employees of any confidentiality obligations hereunder.
12.2 “Confidential Information” means any information contained in a contract between DKSH and Customer and any information provided by or on behalf of DKSH to Customer (in particular but not limited to information regarding pricing, financial information, market information, methods of distribution, customer data, data of employees, manufacturing and technical information and know-how). Notwithstanding the foregoing, Confidential Information does not include information that (i) is rightfully known to Customer at the time of disclosure as demonstrated by Customer’s written or electronic records, (ii) is or becomes part of the public domain through no wrongful act of Customer, (iii) has been rightfully received by Customer from a third party authorized to make the disclosure without restriction, (iv) has been approved in writing by DKSH for release or (v) is independently developed without benefit of the Confidential Information.
12.3 this clause 13 shall survive the termination or expiration of any Agreement by five (5) years.
13. No Assignment
13.1 The Customer shall not be entitled to assign a contract or any of its rights and obligations under these GCS or a contract between DKSH and the Costumer without DKSH’s prior written consent.
14. Compliance with laws
14.1 Unless otherwise agreed in writing, the Customer shall be responsible for compliance with statutory and regulatory requirements relating to export, import, transport, storage and use of the Products and/or Services.
14.2 Insofar as the performance of a contract by DKSH would result or would likely result in the infringement of national, foreign or international (re-)export control laws or other laws, DKSH shall be entitled to rescind the respective contract.
14.3 If export control checks are required, the Customer will provide DKSH immediately upon request with all information pertaining to the final recipients, destination and purpose of the products to be supplied by DKSH as well as any related export control restrictions.
14.3 In all instances, Customer must comply with (re-)export control regulations of the European Union and the United States.
14.4 The Customer shall indemnify DKSH from any and all claims by regulatory authorities or other third parties asserted against DKSH due to the Customer's failure to comply with the aforementioned obligations and agrees to reimburse DKSH for any and all resulting damages and associated expenses, provided that they are the result of Customer's breach of duty.
15. Requirement of written form
15.1 No amendments or waiver of any provision of the Agreement shall be valid unless made in writing.
16. No waiver
16.1 No failure on the part of either party in exercising any right, power or remedy under the Agreement will operate as a waiver thereof.
17.1 In the event that any of the terms or provisions of these GCS is determined to be invalid, illegal, void or in conflict with regulations or rulings of authorities, governmental or other, or otherwise unenforceable, or if any provision or term of these GCS shall become invalid, illegal, void and/or unenforceable at any time hereafter, all other provisions of the GCS shall be severable and shall remain valid, binding and enforceable in accordance with their terms, and the parties agree that a provision which shall be determined to be or which shall become invalid, illegal, void or unenforceable, shall be substituted by another suitable provision which shall maintain the purposes and the intentions of the parties.
18. Force majeure
18.1 DKSH shall not be liable to Customer for any damage, loss, cost or expense which Customer may suffer as a direct or indirect result of 1) the supply of Products and/or performance of Services that is prevented, hindered, delayed or rendered uneconomic, or 2) failure in performing any obligation, by any circumstances or events beyond DKSH’s reasonable control such as (without limitation) failure of DKSH’s supplier to deliver, lack of raw material or energy, fire, act of God, interruptions in traffic, or war, riots, acts of terrorism, strikes, lock-outs, order, law, regulation, demand or requirement of any governmental body or agency (“Event of Force Majeure”).
18.2 Any obligations of DKSH under any contract will be suspended for the period of the Event of Force Majeure. If the Event of Force Majeure extends beyond sixty (60) days, each party may terminate the contract with immediate effect upon written notice without any liability to the other, except that Customer shall remain liable for payment to DKSH for any Products delivered and/or Services performed prior to termination.
19. Governing law / venue
19.1 The contract(s), these GCS and all legal relations between the Customer and DKSH shall be governed exclusively by Dutch law to the exclusion of the laws on conflict of laws and of the United Nations Convention on Contracts and the International Sale of goods (CISG) of April 11, 1980.
19.2 Any disputes arising out of or in connection with the contract(s), these GCS or any legal relations between the Customer and DKSH shall be resolved exclusively before the courts in the Netherlands.