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Terms and conditions
1. GENERAL 1.1 These conditions apply to all offers by and all orders to MIRATES for the sales and delivery by MIRATES of products (hereafter: goods), and to all agreements with MIRATES with respect thereto; 1.2 The Applicability of conditions of the other party or customer (hereafter: customer) of MIRATES is hereby expressly excluded; 1.3 Provisions that deviate from these conditions can be invoked by the customer only if and to the extent that these provisions are accepted by MIRATES in writing. 2. OFFERS, ORDERS AND AGREEMENTS 2.1 All offers MIRATES are non-binding ('vrijblijvend'); 2.2 Orders and acceptances of offers by the customer are irrevocable; 2.3 MIRATES is only bound when it has accepted an offer in writing or has begun implementation. MIRATES is moreover only bound as was accepted in writing. Verbal commitments or agreements by or with its personnel do not bind MIRATES except and insofar as MIRATES confirms these in writing; 2.4 These conditions apply to changes to the agreement as they do to separate agreements. 2.5 By ordering with MiraTes, the client authorises the member company receiving the order, to place this order on behalf of the client to another member, for sale and delivery by this other member company. Orders will not be placed with non-member companies without prior written consent by the client. 2.6 For all sales and deliveries by MiraTes Asia Ltd., MiraTes BV will offer quality and guarantee handling, as well as orderhandling and client services on behalf of the seller. 3. PRICE 3.1 Prices set by or agreed to with MIRATES are net, therefore exclusive of V.A.T., among other things, and are valid only for the delivery ex warehouse of unpacked goods; 3.2 Should MIRATES provide packing, packaging, loading, transport, unloading, insurance, without having expressly and in writing agreed to a price therefor, it is entitled to charge the customer the actual costs and/or its usual rates therefor; 3.3 Prices set by or agreed to with MIRATES are based on the cost price at the time of the conclusion of the agreement. If, thereafter, the cost price increases, due for example to government regulations or changes in the exchange rate, MIRATES is entitled to charge the customer a corresponding price increase. 4. DELIVERY PERIOD AND DELIVERY 4.1 The delivery period starts after the conclusion of the agreement, and after MIRATES received all items, documents and data to be provided by the customer, and after any agreed upon advance payment has been received by MIRATES, or any agreed upon security for payment has been put at its disposal; 4.2 Unless otherwise agreed, goods to be delivered by MIRATES are deemed to be delivered as soon as they have left the warehouse indicated by MIRATES for the benefit of the customer; 4.3 Failure to deliver within the delivery period does not entitle the customer to additional or substitute damages, nor to non-fulfillment by it of any of its own obligations arising from the agreement. The customer is, however, entitled to rescind the agreement by a written declaration, if and insofar as after the above-mentioned failure to deliver, MIRATES still fails to deliver the agreed upon goods within a reasonable period as agreed to with the customer in writing; 4.4 Delivery periods will be extended by the amount of time that the implementation of the agreement is delayed by force majeure. They will also be extended by the time that the customer is later in the fulfillment of any obligation than is agreed to or could reasonably be expected by MIRATES; 4.5 MIRATES has the right to deliver in parts. Each partial delivery will be deemed an independent delivery with respect to the applicability of these conditions; 4.6 Delivery is deemed to take place in China or any other place of dispatch if applicable. 5. RISK AND TRANSFER OF TITLE 5.1 Loading, dispatch or transport, unloading and insurance of the goods to be delivered takes place at the risk of the customer, even if these are handled by MIRATES; 5.2 All goods delivered by MIRATES remain the property of MIRATES until such time as the customer has paid in full all that which is owed to MIRATES in connection with the underlying agreement and/or earlier of later agreements of the same nature, including damages, costs and interest. The customer has no right of retention with respect to these goods. 6. FORCE MAJEURE 6.1 MIRATES is entitled to invoke force majeure if the implementation of the agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances, due or not due to third parties and reasonably out of its control; 6.2 In the case of force majeure on the part of MIRATES, its obligations are suspended. If the force majeure lasts longer than two months, MIRATES and the customer are both authorized to rescind the non-feasible parts of the agreement by a written declaration, without prejudice to the provision of article 10. 7. WARRANTY, CLAIMS, AND LIABILITY 7.1 If the quality of goods doesn't comply with the agreement, the customer must submit a claim in writing no later than 72 hours after delivery, failing which any claim on MIRATES will lapse; 7.2 If the customer claims as mentioned in the previous paragraph, he must give MIRATES the opportunity to have the goods inspected in order to determine the - allegedly inferior - quality; 7.3 Any right to a guarantee lapses if:the storage of the goods by or on behalf of the customer has been done improperly. operations have been performed by or on behalf of the customer. the customer has not fulfilled any of its obligations towards MIRATES arising from the underlying agreement, or has not fulfilled them adequately or on time; 7.4 In case of a legitimate claim which is submitted in a timely fashion, MIRATES will either redeliver at no cost, or credit the customer as far as reasonable in whole or in part for the invoice value of the goods in question, all of this at MIRATES's option. These conditions are applicable in case of redelivery. 8. LIABILITY AND INDEMNIFICATION 8.1 MIRATES's liability in connection with any defects in goods it delivers is limited to the fulfillment of the guarantee described in the previous article; 8.2 MIRATES is never obliged to pay substitute or additional damages except if and insofar as the damage suffered was inflicted intentionally or by the gross negligence of MIRATES or its own employees. MIRATES's liability for loss of profits, consequential or indirect damages is, however, at all times excluded, except in the case of intention on the part of MIRATES itself; 8.3 In all cases in which MIRATES is obliged to pay damages, these will never be higher than, at its option, either the invoice value of the goods delivered whereby or in connection with which the damage was caused, or, if the damage is covered by an insurance policy of MIRATES's, the amount that is actually paid out by the insurer with respect thereto; 8.4 Any claim toward MIRATES, except those recognized by MIRATES, lapses after a period of 12 months from the time the claim arose; 8.5 MIRATES's employees, or independent contractors brought in by MIRATES for the implementation of the agreement, can, toward the customer, invoke all means of defense afforded by the agreement as if they themselves were party to that agreement; 8.6 The customer will indemnify MIRATES, its employees and independent contractors brought in by it for the implementation of the agreement for each claim by third parties in connection with the implementation by MIRATES of the agreement, insofar as those claims are greater than or different from those to which the customer is entitled from MIRATES. 9. PAYMENT AND SECURITY 9.1 Payment must take place within 30 days after the invoice date. MIRATES has however at all times the right to claim full or partial payment in advance, and/or otherwise to obtain security for payment; 9.2 The customer relinquishes any right to set amounts charged by and between parties. Guarantee claims do not suspend the payment obligations of the customer; 9.3 If the customer does not pay any amount it owes pursuant to the foregoing, it is in default without notice. As soon as the customer is in default on any payment, all MIRATES's remaining claims on the customer are due, and the customer is immediately in default without notice with respect to those claims. As from the day on which the customer is in default, he owes to MIRATES late interest equal to the discount rate for promissory notes ("promesse-disconto") of the "Nederlandse Bank" on that day raised with four points; 9.4 All judicial and extra-judicial costs connected with the recovery of any claim against the customer shall be for the account of the customer. The extra-judicial costs shall amount to at least 15 (fifteen) percent of the amount which is claimed. 10. RESCISSION 10.1 If the customer does not fulfil one or more of its obligations, does not fulfil them on time or adequately, is declared bankrupt, requests (temporary) moratorium, or proceeds with the liquidation of its business, as well as when its assets are attached in whole or in part, MIRATES had the right to suspend the implementation of the agreement or to rescind the agreement in whole or in part, without prior notice of default, by written declaration, at its option and always reserving any rights to which it is entitled with respect to compensation for costs, damage and interest; 10.2 The customer is authorized to rescind only in cases referred to in articles 4.3 and 6.2 of these conditions, and then only after payment to MIRATES of all amounts owed to MIRATES at the time, whether or not due. 11. DIPUTES AND APPLICABLE LAW 11.1 All disputes existing between parties shall be heard exclusively by the competent Rotterdam court, unless MIRATES prefers another competent forum; 11.2 The agreement is subject to Dutch law. |
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