- DEFINITIONS
Third Party: any person or legal person who is not the Buyer or Nippon Carbide Industries
(Netherlands) B.V.
Nippon Carbide Industries (Netherlands) B.V.: the Seller, the private limited company Nippon
Carbide B.V. (Ch. of Comm.: 14047976), the user of these general terms and conditions.
Creditworthiness: assessment by an independent credit rating agency. Creditworthiness is sufficient if the creditworthiness is equivalent to or in excess of the average in the industry.
Buyer: the natural or legal person which concludes an agreement with Nippon Carbide Industries (Netherlands) B.V. for the purchase of Products.
Delivery Details: the information concerning the delivery such as the date of delivery, the manner of delivery.
Offer: an offer from Nippon Carbide Industries (Netherlands) B.V. for the conclusion of an
agreement.
Parties: The Buyer and Nippon Carbide Industries (Netherlands) B.V..
Personal Data: all information that identifies a natural person or makes a person identifiable.
Product: the movable property with accessories such as the statement of the specifications or separate components that are sold and delivered to the Buyer by Nippon Carbide Industries (Netherlands) B.V.
Working Day: a calendar day, unless it is a day of rest or public holiday, a day of leave or any other non-individual day off recognised generally or at the location of the Work or which is prescribed by the Dutch government or by a (Dutch) collective labour agreement. - APPLICABILITY
These general delivery and payment conditions, hereinafter referred to as ‘the general terms and conditions’, apply to all proposals, offers, agreements, services, deliveries and creation of products by, on behalf of or with Nippon Carbide Industries (Netherlands) B.V.
The applicability of any conditions applied by Buyers, customers and other parties (hereinafter referred to as ‘the Buyer’) with whom Nippon Carbide Industries (Netherlands) B.V. contracts are expressly excluded, unless this is agreed expressly in writing and not in general terms prior to or on the occasion of the conclusion of an agreement. The same applies to any deviation from these general terms and conditions. The invalidity and/or dissolution and/or voidability of one or more provisions of these general terms and conditions does not affect the legal validity of the other general terms and conditions.
The English general terms and conditions prevail over the translations of the conditions into another language drawn up by Nippon Carbide Industries (Netherlands) B.V. - PROPOSALS AND OFFERS
All proposals made by Nippon Carbide Industries (Netherlands) B.V. are always without obligation unless indicated otherwise. Sending price lists, printed materials or other publications cannot be considered as Nippon Carbide Industries (Netherlands) B.V. assuming any obligation in advance. Images, drawings and indications of sizes and weights, and other specifications included in catalogues, price lists or advertising materials are merely indications or are provided by way of an indication. Nippon Carbide does not provide any guarantees as regards possible differences.
Nippon Carbide Industries (Netherlands) B.V. has the right to correct, revoke or change its proposal. The previous proposal will then lapse.
Nippon Carbide Industries (Netherlands) B.V.’s proposal will lapse if the Buyer has not accepted its proposal within 7 working days and this proposal can no longer be invoked. This provision applies unless indicated otherwise in the offer. - THE PURCHASE AGREEMENT
The purchase agreement is concluded between the parties after Nippon Carbide Industries
(Netherlands) B.V. has accepted the order from the buyer.
The Buyer has the obligation to verify the details (including these general conditions, the amount, the price and the delivery terms) before or during ordering products at Nippon Carbide Industries (Netherlands) B.V. Nippon Carbide Industries (Netherlands) B.V. accepts the order including these general terms and conditions to the exclusion of all other general terms and conditions. These general terms and conditions form an inextricable part of Nippon Carbide Industries (Netherlands) B.V.’s acceptance.
Acceptance by Nippon Carbide Industries (Netherlands) B.V. will be performed in writing or in the way that Nippon Carbide Industries (Netherlands) B.V. and buyer always have done and at least when the cancellation is not invoked by the Buyer.
Neither party has the right to transfer the purchase agreement to a third party unless it has obtained the express and written consent of the counterparty. - PRICES AND DELIVERY
Prices are exclusive of VAT and exclusive of the costs of transport and insurance.
Nippon Carbide Industries (Netherlands) B.V. has the right to demand a payment (a full payment included) in advance from Buyer. There are no obligations for Nippon Carbide Industries (Netherlands) B.V. to fulfil its obligations until the Buyer has paid as agreed.
Delivery is Carriage and Insurance Paid to the named place of destination (Incoterms 2020: CIP), unless expressly agreed otherwise in writing.
The seller pays the cost of carriage, but the seller risk ends at the place of shipment. The seller shall procure the minimum insurance until the named place of destination. The buyer has the option to contract additional insurance. The risk is passed when the goods are received by the first carrier.
Additional costs not included in the agreement and that become known after conclusion of the agreement are charged to the Buyer. Additional costs may include costs such as additional import and other duties, excise duty and additional insurance premiums.
If delivery at the agreed time and place proves impossible, Nippon Carbide Industries (Netherlands) B.V. will have the right to keep the goods concerned, unless alternative arrangements are made at that moment. The related additional costs of any further transport and the additional storage costs may be charged on to the Buyer by Nippon Carbide Industries (Netherlands) B.V.
The delivery times indicated by Nippon Carbide Industries (Netherlands) B.V. can never be
considered to be strict deadlines, but merely indications, unless expressly agreed otherwise in writing. Nippon Carbide Industries (Netherlands) B.V. endeavours to comply with these times as much as possible. However, the fact that Nippon Carbide Industries (Netherlands) B.V. exceeds the term will not give the Buyer the right to terminate the agreement, refuse to make payment and does not oblige Nippon Carbide Industries (Netherlands) B.V. to pay compensation on any basis whatsoever.
Insofar as the parties make other arrangements concerning transport, such will be apparent from the express provisions of the written agreement that are not formulated in general terms. - CANCELLATION
After the agreement has been concluded, there is a period of 2 Dutch working days during which either party can cancel the agreement partly or in whole.
After the aforementioned period of two working days has ended, the agreement can be cancelled after the parties have reached an agreement in writing concerning the manner of cancellation and the division of the costs related to the cancellation and only after Nippon Carbide Industries (Netherlands) B.V. has agreed in writing to the request for cancellation of the agreement by the Buyer. Costs related to preparing the product, administrative costs and the transport costs incurred form an inextricable part of the costs of cancellation and are for the Buyer’s risk and account. It will be sufficient for Nippon Carbide Industries (Netherlands) B.V. to provide an estimate of these costs.
Nippon Carbide Industries (Netherlands) B.V. will send the Buyer a credit invoice and an estimate of the costs deducted as soon as possible and in any event after receipt and inspection of the product by Nippon Carbide Industries (Netherlands) B.V. - PRODUCT AND DOCUMENTATION
If Nippon Carbide Industries (Netherlands) B.V. is unable to deliver the product, Nippon Carbide Industries (Netherlands) B.V. will have the right to deliver a similar product of equivalent or better quality or with similar or better characteristics instead of the product or the right to deliver the product later. Only Nippon Carbide Industries (Netherlands) B.V. has the right to choose between the alternatives.
A sample, model, example or a different item, shown by Nippon Carbide Industries (Netherlands) B.V. to the Buyer, provides merely an indication of the characteristics of the product. The characteristics of the product may deviate from the characteristics of the sample, model, example or different item. The Buyer cannot derive rights or expectations from the characteristics of the sample, model, example or different item shown.
The Buyer will ensure that he is familiar with the characteristics and specifications of the product. The Buyer is aware of the risks of the use of the product and the minimum safety requirements related to the use of the product. The Buyer will use the product in accordance with the statutory requirements to which the Buyer is subject.
Insofar as further guarantees are provided with respect to the goods delivered, these will only apply if they are expressly agreed in writing and if the conditions of this guarantee are provided upon delivery. Any right under a guarantee lapses if the defect was not reported to Nippon Carbide Industries (Netherlands) B.V. within 1 week after discovery of this defect. - SUSPENSION
Nippon Carbide Industries (Netherlands) B.V. has the right to suspend the delivery obligations on the basis of a failure to comply with any payment obligation in whole or in part. Nippon Carbide Industries (Netherlands) B.V. has the right to suspend delivery on the basis of insufficient creditworthiness on the part of the Buyer or on the basis of a failure on the part of the Buyer to comply or a failure to comply in full with his obligations and the consequences thereof that arise from this agreement or from other agreements with the Buyer. Nippon Carbide Industries (Netherlands) B.V. will notify the other party of the suspension immediately. This obligation is not a requirement for the creation of a right of suspension. The Buyer may provide sufficient security for compliance. - SECURITY
The Buyer is obliged at Nippon Carbide Industries (Netherlands) B.V.’s first notification to provide security for correct compliance with the Buyer’s payment obligation relating to an agreement performed or still to be performed in whole or in part by Nippon Carbide Industries (Netherlands) B.V. in a form desired by Nippon Carbide Industries (Netherlands) B.V. - FORCE MAJEURE
A failure to comply with its obligations cannot be attributed to Nippon Carbide Industries
(Netherlands) B.V. if this failure is the result of force majeure.
Force majeure is defined as the circumstance that Nippon Carbide Industries (Netherlands) B.V., or parties engaged by Nippon Carbide Industries (Netherlands) B.V. on which it depends, do not comply or do not comply in time with their obligations, but also includes weather conditions, natural disasters, terrorism, cybercrime, disruptions in the digital infrastructure, fires, power failures, (the consequences of) epidemics, theft or loss of tools, materials or information, road blocks, strikes or work interruptions, transport obstructions (including traffic congestion), the threat of war, disturbances, strikes, floods, illness, government measures of any kind whatsoever (including import and export measures), disruptions to the supply of raw and/or auxiliary materials and energy, defects in or damage to machines and installations, and all other circumstances that are beyond Nippon Carbide Industries (Netherlands) B.V.’s control.
Force majeure also applies if a supplier or service provider commits breach of contract towards Nippon Carbide Industries (Netherlands) B.V. unless Nippon Carbide Industries (Netherlands) B.V. should have taken this breach of contract into account when it concluded the agreement.
If the force majeure as stated in this article does not apply, the article 79 and 80 CISG apply. - RETENTION OF TITLE
All goods delivered and to be delivered remain the exclusive property of Nippon Carbide Industries (Netherlands) B.V. until all claims it has or will acquire against the Buyer on any basis whatsoever have been paid in full. After the Buyer has acquired full ownership, this agreement creates an undisclosed right of pledge in respect of the goods delivered by Nippon Carbide Industries (Netherlands) B.V. for the benefit of Nippon Carbide Industries (Netherlands) B.V. in respect of all claims Nippon Carbide Industries (Netherlands) B.V. has and/or will acquire against the Buyer at any time, on any basis whatsoever. - PAYMENT
Payment of invoices must take place within 8 days after the invoice date unless Parties have otherwise agreed in writing. The Buyer is in default as a result of the mere expiry of this term. Notice of default is not required. The Buyer expressly waives his right to set off any counterclaims on his part on any basis whatsoever. In case of late payment, Nippon Carbide Industries (Netherlands) B.V. charges the Buyer contractual interest which is the legal interest for business contracts (art. 119a Dutch Civil Law Code) plus 4% per year on the amount outstanding at that time.
The Buyer will be obliged to reimburse to Nippon Carbide Industries (Netherlands) B.V. all costs to be incurred by Nippon Carbide Industries (Netherlands) B.V. as a result of the Buyer’s default, both the judicial and extrajudicial costs. The collection costs related to the settlement of the extrajudicial costs after the claim was handed over to a third party for collection will amount to 15% of the principal sum subject to a minimum of €500.
Payments serve in the first place to reduce the costs, then to reduce the interest that has fallen due and finally to reduce the principal sum and the accrued interest.
Set-off of the purchase price against any counterclaim against Nippon Carbide Industries
(Netherlands) B.V. on the basis of this agreement or on the basis of another obligation is excluded. - COMPLAINTS
Complaints concerning goods delivered relating to the quantity or quality of these goods or any damage must be reported by the Buyer immediately upon delivery by means of a statement on the delivery slip. A defect that is visible or palpable or otherwise knowable upon delivery, has to be reported immediately upon delivery. The Buyer will ensure that Nippon Carbide Industries (Netherlands) B.V. is informed with proper documentation. Nippon Carbide Industries (Netherlands) B.V. is not obliged to handle complaints that are submitted to it later.
The right to complain lapses in any event after the product has been processed or 1 week after the Buyer has discovered or could have discovered a non-conformity, whichever occurs the first. This is the time limit for the presenting of complaints.
All claims against Nippon Carbide Industries (Netherlands) B.V. pursuant to this agreement lapse 1 year after the moment of delivery.
The Buyer cannot bring other claims until after the reasonable terms referred to in this paragraph have ended. - REPAIR AND REPLACEMENT
Following receipt of a complaint from the Buyer, Nippon Carbide Industries (Netherlands) B.V. will have the right to fulfil its obligations within a reasonable term by delivering, repairing or replacing materials, unless this would be unreasonable. Nippon Carbide Industries (Netherlands) B.V. will determine how to effect performance of the agreement, with due observance of the interests of the Buyer and with due observance of whether the Buyer has or has not complied with the obligations arising from this or another agreement.
The Buyer only has the right to demand replacement of the product in case of an essential defect. - INFORMATION & ADVICE
Information about the product provided upon conclusion of the agreement does not constitute advice intended specifically for the Buyer. It concerns general information on the basis of which the Buyer can and must assess whether the product is suitable for the use intended by the Buyer.
Nippon Carbide Industries (Netherlands) B.V. expressly rejects all liability/accountability concerning possible damage of any kind or any extent that is the result in whole or in part of performance by the Buyer or third parties. The Buyer always remains responsible for the manner in which the activities are carried out. In any case in which Nippon Carbide Industries (Netherlands) B.V. provides advice, its liability in case of an attributable failure will be limited to at most the amount of the invoice value from Nippon Carbide Industries (Netherlands) B.V. relating to the used products, with the exception of intent or gross negligence. Nippon Carbide Industries (Netherlands) B.V. is never liable for consequential
damage.
In case of a contract for services, all liability lapses as a result of the passage of one year as from the moment the advice has been completed. - LIABILITY NIPPON CARBIDE INDUSTRIES (NETHERLANDS) B.V.
Nippon Carbide Industries (Netherlands) B.V. is not liable if the product was processed incorrectly. Nippon Carbide Industries (Netherlands) B.V. is not liable if the product sold was damaged due to an external event. Nippon Carbide Industries (Netherlands) B.V. is not liable for any consequential damage, including in any event damage caused to items or property other than the products delivered by Nippon Carbide Industries (Netherlands) B.V., lost profit or losses due to delay or losses due to replacement. Liability is also excluded for damage-mitigating measures implemented by the Buyer. The reason for limiting the liability is that Nippon Carbide Industries (Netherlands) B.V. has no control whatsoever over the processing of the products, the consequences and is also unable to oversee the consequences.
Nippon Carbide Industries (Netherlands) B.V. will never be liable in case incorrect performance of the agreement is the result of force majeure.
Use of cleaning products, chemical agents and other additions on the sold products is for the Buyer’s own risk. These agents could have a negative impact on the product characteristics. Damage resulting from their use is not covered by the guarantee.
In case of liability or damage in the broadest sense of the word, liability on the part of Nippon Carbide Industries (Netherlands) B.V. will be limited in any event and always to the amount paid out in the case concerned pursuant to the liability insurance taken out by Nippon Carbide Industries (Netherlands) B.V. Nippon Carbide Industries (Netherlands) B.V.’s entire liability for all of the damage will be limited to the purchase price of the product agreed in this agreement.
Insofar as Nippon Carbide Industries (Netherlands) B.V. offers a higher compensation than the invoice value in specific cases, such will not constitute an acknowledgement of liability. Nippon Carbide Industries (Netherlands) B.V. makes offers of a higher compensation than the invoice value exclusively for commercial reasons. The limitations of liability included in these general terms and conditions remain fully in effect if such an offer is made. - TRADE SECRETS
All information the Buyer and Nippon Carbide Industries (Netherlands) B.V. hold from and
concerning each other constitutes a trade secret within the meaning of EU Directive 2016/943, unless the parties agree otherwise.
The use of trade secrets owned by the counterparty is prohibited unless the parties have expressly agreed otherwise. Each party is liable for damage sustained by the counterparty as a result of the use or abuse of trade secrets by its employees, subcontractors or third parties that are affiliated with it contractually or otherwise. If this prohibition is breached, the Buyer will owe Nippon Carbide Industries (Netherlands) B.V. a penalty of €10,000.00 per breach in addition to the damage actually sustained. - AVOIDANCE
Full or partial avoidance of the agreement is excluded. The reason for this article is that the
consequences of a declaration of avoidance of a purchase agreement whereby the product delivered has been processed or modified, is considered too complex and disproportionately costly by both parties. - BANKRUPTCY, SUSPENSION OF PAYMENT AND ATTACHMENT
In case of bankruptcy or a suspension of payment on the part of the Buyer or in the event an attachment is levied against or at the expense of the Buyer or it becomes clear in a different manner that the Buyer is no longer able to comply in full with his obligations arising from the agreement with Nippon Carbide Industries (Netherlands) B.V., Nippon Carbide Industries (Netherlands) B.V. will have the right to terminate the agreement with immediate effect and in any event to suspend its obligations under the agreement until the Buyer is able to pay in full. - General Data Protection Regulation (GDPR)
Nippon Carbide Industries (Netherlands) B.V. processes personal data such as names, e-mail addresses, telephone numbers of the Buyer’s employees for the purpose of the performance of and compliance with obligations under this agreement in the broadest sense of the word. These data are processed in accordance with the GDPR and are not shared with third parties by Nippon Carbide Industries (Netherlands) B.V.
Interested parties may contact Nippon Carbide Industries (Netherlands) B.V. for the purpose of exercising rights under the GDPR. - DISPUTES
All agreements with Nippon Carbide Industries (Netherlands) B.V. are governed by the CISG (Vienna Sales Convention) and by Dutch national law when the CISG does not provide rulings.
All disputes between Nippon Carbide Industries (Netherlands) B.V. and the Buyer that cannot be settled amicably, including disputes that are only considered to be disputes by one of the parties, are submitted to the competent court in the jurisdiction of Maastricht (The Netherlands) to the exclusion of other courts, unless Nippon Carbide Industries (Netherlands) B.V. and the Buyer agree after a dispute arises to submit the dispute to arbitration or to a different court.
March 2023
(Netherlands) B.V.
