Terms and conditions

General terms and conditions of the private limited liability company Maxim Functional Communication B.V., established at Transistorstraat 31 in (1322 CK) Almere Netherlands.

Article 1 Applicability

These general terms and conditions apply to all our offers and to all agreements entered into by us regarding the delivery of goods to our buyers.
Where these general terms and conditions refer to ‘purchaser’, this means the legal person with whom we have entered into a purchase agreement, i.e. the person who placed the order and for whose account goods are delivered.
Deviations from what is stipulated in these general terms and conditions are only possible if the changes have been expressly agreed in writing.
If the buyer also refers to (his/her) general terms and conditions, the buyer’s terms and conditions do not apply and are expressly rejected. The purchase agreement is therefore always subject to these general terms and conditions.

Article 2 Quotations

All our offers should be seen as invitations to the potential buyer, to make an offer. They do not bind us, unless the offer itself explicitly and unambiguously states the contrary (in writing). The order given to us is considered an offer, which can only be regarded as accepted after written confirmation from our side (the so-called order confirmation).
The offers made by us include (in particular also with regard to the provisions of the previous paragraph): designs, drawings, models, samples, descriptions, illustrations and the like, and any attachments and documents relating to our offers. All these remain our property and must be returned to us at all times at our first request. Under no circumstances may they be copied and/or issued to third parties without our express written consent. We also reserve the rights arising from intellectual and industrial property.

Article 3 Conclusion of agreement and cancellation of order

An agreement comes into effect after a written acceptance given by us, commencing on the date the order confirmation is sent.
Cancellation of the order is only possible in writing. If the order has already been confirmed by us, so that a valid contract has been established, cancellation is only possible after written confirmation thereof by us.
We assume that the order confirmation sent by us to the buyer fully and correctly reflects the contents of the concluded contract. If the buyer is of the opinion that this is not the case, he must inform us of this in writing within 3 days of the date of our order confirmation.
Any additional agreements not included in an order are only legally valid if they have been explicitly confirmed by us in writing.

Article 4 Prices

Our prices are exclusive of turnover tax and – unless explicitly agreed otherwise in writing – exclusive of packaging, transport and other costs. Orders whose invoice amount exceeds € 750 (excluding VAT) shall be delivered free of charge to one address specified by the buyer. For orders whose invoice amount is lower than € 750 (excluding VAT), we charge € 15 order and freight costs.
The prices stated in offers, contracts and order confirmations are based on the cost factors, such as exchange rates, manufacturer’s prices, raw material and material prices, wage and transport costs, insurance premiums, taxes, import duties and other government levies applicable at the time the agreement was made.
We reserve the right, if increases in one or more of the cost factors occur after the date the agreement came into effect, but before the day of delivery, to charge these increases to the buyer. We also reserve the right, in such a case, to dissolve the agreement in whole or in part without legal intervention. The buyer also has this right if, within 3 months of concluding the contract, we take the view that changes in costs result in an increase in the price stated in the order confirmation. If the buyer exercises this right, he must invoke the cancellation by registered letter within 5 days of receiving the relevant notification from us.

Article 5 Delivery and delivery periods

The delivery periods stated by us shall commence on the day on which the agreement is concluded, if all the information we require for the execution of the order is in our possession. The delivery times stated by us shall never be regarded as strict deadlines.
Costs for delivery of goods shall be borne by the buyer, unless the invoice amount exceeds € 750 (excluding VAT). The costs of return shipments shall also be borne by the buyer. Furthermore, the goods are at the expense and risk of the buyer. To a foreign buyer we deliver, unless otherwise agreed, ex ‘warehouse’. Furthermore, the goods are at the expense and risk of the buyers. We will take care of clearance, but the costs of this are for the account of the buyer.
If the goods are returned after dispatch to the buyer, for example because the goods have not been received on time, the costs of the return shipment, the subsequent shipment and any storage shall be borne by the buyer unless expressly agreed otherwise in writing.
Unless the buyer himself provides a forwarding agent, the goods shall be dispatched by us in what we consider a favourable manner, with forwarding agents to be chosen by us.
If a buyer requests the delivery of goods in a way other than the usual way, we may charge the buyer for the associated costs.
If the delivery is made in parts, we shall be entitled to regard each delivery as a separate transaction.
The buyer must take delivery of the purchased goods within the agreed time (accept the shipped goods). If this does not happen, we shall be entitled – at our option – to demand that the competent court releases us from our obligation to deliver the agreed goods, or to demand payment of the purchase price of the part not taken without prior notice of default. If the buyer does not fulfil his payment obligation, we shall be entitled to declare the agreement dissolved without legal intervention. If the buyer defaults as described above, it is assumed that the goods have been delivered and we will store them at the buyer’s expense and risk, against payment of all resulting costs.

Article 6 Complaints and defects

The purchaser guarantees the correctness and completeness of – and is responsible for – the data he has supplied to us. Where the data, measurements, colour fastness and the like provided by us in our offer, or what forms part thereof pursuant to article 2 paragraph 2, are concerned, the purchaser must take account of the usual tolerances and of minor changes in the goods delivered by us. More specifically, this applies to deviations from the contracted quantity; here, too, the buyer must take customary tolerances into account. The goods delivered by us may therefore deviate from the description in the order if and insofar as it concerns minor size differences, quantity differences and minor changes.
Complaints by the buyer, relating to defects in goods that are externally perceptible, must be notified to us by the buyer within 8 days after delivery or within 8 days after the invoice date, if the goods were not (or could not have been) delivered to the buyer. This must be done by registered letter containing a clear and precise description of the complaint and specifying the invoice, with which the items in question were invoiced. The buyer must carry out a careful and timely inspection.
Defects that were not externally perceptible at the time of delivery, nor could have become apparent upon careful and timely inspection, must be notified to us by the buyer within 8 days of these defects coming to light in the manner stated in paragraph 2.
Any right of claim of the purchaser for defects in goods delivered by us shall lapse if:
a. the defects have not been notified to us within paragraphs 2 and 3 above and/or in the manner specified there;
b. the buyer does not/not sufficiently cooperate with us regarding an investigation into the merits of the complaints;
c. the buyer has not set up, handled, used, stored or maintained the goods in the correct manner or has used or handled the goods under circumstances or for purposes other than those provided by us;
d. The application of the use of the goods in respect of which the complaints have been made is continued by the buyer;
e. the guarantee period stated in the individual agreement has expired or, if there is no such period, the complaints are first expressed after a period of more than 12 months has elapsed since the delivery time. In disputes concerning the quality of the goods delivered by us, a reputable agency indicated by us shall give a binding ruling.

Article 7 Liability

Only if the guarantee obligations in respect of the goods delivered by us have not been assumed by third parties (such as manufacturers) can the buyer assert (guarantee) claims against us. Our liability in this case is limited to defects resulting from manufacturing and material faults.
In case of complaints, if the merits of the complaint regarding the quality are established by us and if we are also liable as referred to in paragraph 1, we are only obliged to do so, at our discretion:
a. repair of defects (free of charge);
b. delivery of replacement goods or parts, after returning the defective goods or parts;
c. reimbursement of the purchase price received/crediting of the invoice sent to the buyer with dissolution of the concluded agreement without legal intervention, all insofar as the purchase price, the invoice and the agreement relate to the defective goods delivered;
d. compensation to be paid in a form other than that referred to above, to be agreed with the buyer.
If the Buyer has carried out repairs and/or made changes to the goods without prior, explicit and written consent, as well as if the Buyer has treated the goods carelessly or exposed them to abnormal conditions, such at our discretion, any guarantee obligation on our part shall lapse.
Barring any obligations on our part by virtue of the above, we shall never be obliged to pay any compensation to the Buyer and others, unless there is intent or fault on our part (to be proven by those holding us liable by legal means).
In particular, we shall never be liable for consequential or trading losses, direct or indirect losses, however called, including loss of profits and losses due to standstill, suffered by the buyer, his employees and those employed by him or third parties, as a result of full or partial (re)delivery of goods, delayed or faulty delivery, or failure to deliver goods or the goods themselves.
The purchaser shall not be entitled to return the goods in respect of which there is no justified complaint. Should this nonetheless occur without valid reasons, all costs related to returning the goods shall be borne by the buyer. In that case, we are free to store the goods with third parties at the expense and risk of the buyer.
The buyer is obliged to indemnify us for all claims that third parties may enforce against us in connection with the execution of the agreement, insofar as the law does not prevent the damages and costs resulting from these claims from being borne by the buyer.

Article 8 Retention of title and security

Goods delivered by us shall remain our property until full payment of all that the Buyer owes us on account of, in connection with or arising from the goods delivered by us. If we consider it necessary, we shall be entitled to demand security from the buyer for the fulfilment of his obligations.
The buyer is not entitled to pledge the unpaid goods or to establish any other right in rem or personal right for the benefit of a third party.
The buyer is not allowed to sell the goods to third parties, unless agreed otherwise in writing, e.g. in a distribution agreement.
If, as a result of treatment or processing by the buyer, our property right in the goods delivered by us is lost, the buyer must establish a non-possessory pledge for us on the goods created after the treatment or processing.
We shall at all times be entitled to reclaim the goods that are in the possession of the buyer (or third parties) but belong to us as soon as we can reasonably assume that there is a real chance that the buyer will not fulfil his obligations. The foregoing is without prejudice to all rights as they arise for us under common law: in particular, we also reserve the right to claim damages from the buyer after recovery of the goods.
The buyer is obliged to insure the risk of fire and theft in respect of the unpaid goods and to prove this insurance at our request.

Article 9 Payment

Payment should be made in euros, unless explicitly agreed otherwise in writing, without any deduction or discount, in cash at our place of business or by transfer to a bank account designated by us, in both cases immediately after delivery of the goods concerned, or at least within 14 days of the invoice date, unless explicitly agreed otherwise in writing. In case of payment by bank, the day of crediting our bank account shall be considered the day of payment.
If the buyer fails to make (full) payment on time, he shall be in default without further notice of default being required. In that case, if there is sufficient connection to the buyer’s non-compliance, we are entitled to suspend the fulfilment of all our obligations with the buyer, without prejudice to all our rights under common law.
We shall also be entitled to demand cash payment for all deliveries yet to be made before delivery of the goods, or a guarantee of timely payment. Furthermore, in that case we are entitled to dissolve the agreement without legal intervention, whereby the buyer is then obliged to return the delivered goods, or to undo the performance carried out by us in some other way, without prejudice to our right to damages. If the buyer remains in default of timely payment, he forfeits to us or to the seller’s credit insurer, without further notice from us, from the due date until the day of full payment, an interest equal to the statutory interest plus 4% per year, calculated on the unpaid amount, which interest is immediately payable without further notice of default.
All costs involved in the collection of invoiced amounts (including extrajudicial collection costs) shall be borne by the debtor. The extrajudicial collection costs amount to a minimum of 15% of the principal sum with a minimum of € 50, – all exclusive of VAT.
In addition, all adverse consequences of loss of exchange rate or other consequences of late payment or non-payment shall be borne by the buyer, even if the buyer has fulfilled his payment obligations in time according to the provisions in force in his country, but circumstances or measures beyond his control have caused the transfer to take place in a manner unfavourable to us.
In accordance with Article 6:44 of the Dutch Civil Code, payments shall first be applied to reduce the costs referred to in paragraph 3, then to reduce the interest due and finally to reduce the principal sum and current interest.
If there is a considerable deterioration in the buyer’s financial position after the conclusion of the agreement, but before delivery of the goods, we shall be entitled to wholly or partly abandon further performance of the agreement, or to demand a change in the terms of payment.
The seller may transfer its claims arising from all transactions to a credit insurer of its choice.

Article 10 Force majeure

Force majeure is to be understood as any circumstance beyond our control which is of such a nature that fulfilment of the agreement cannot reasonably be required of us (non-attributable failure to perform).
Force majeure also includes: war, riots and hostilities of any kind, blockade, boycott, natural disasters, epidemics, lack of raw materials, hindrance and interruption of transport possibilities, disruptions in our business, import and export restrictions or bans, impediments caused by measures, laws or decisions of international, national and regional (government) bodies. If we are unable to fulfil our delivery obligation, properly or on time due to force majeure, we are entitled to regard the agreement or the part not yet fulfilled as dissolved or to suspend it for a definite or indefinite period of time. In case of force majeure, the buyer cannot claim damages from us.

Article 11 Applicable law

The offers made by us and all agreements entered into by us are governed exclusively by Dutch law.

Article 12 Settlement of disputes

All disputes of whatever nature relating to/resulting from agreements entered into by us and deliveries made by us shall be adjudicated by the competent court in the Netherlands.

1 April 2020 Version 1