General terms & conditions

GENERAL TERMS AND CONDITIONS PHI-TON INTERNATIONAL B.V.

The headings above the articles of these general terms and conditions only serve to increase the legibility. Consequently, the contents and purport of the article included under a specific heading is not limited to such heading.

Article 1- General

1. These General Terms and Conditions apply to all quotations and agreements of Phi-ton B.V., hereinafter referred to as: Phi-ton, and form the basis for all deliveries made by and/or services rendered by Phi-ton, all this in the broadest sense of the word.
2. Stipulations and/or agreements that deviate from these conditions only apply if these are explicitly confirmed by Phi-ton in writing. Deviating terms and conditions of the buyer do not apply to agreements concluded with Phi-ton and such terms and conditions do not bind Phi-ton.
3. In these terms and conditions, the term "buyer" refers to the buyer as well as to any party that has issued an order to Phi-ton.
4. In these terms and conditions, the term 'agreement' refers to all agreements established between Phi-ton and its buyers, all amendments of or supplements to such agreement as well as all (legal) transactions in preparation and in fulfilment of such agreement.

Article 2 - Quotations

1. Unless explicitly otherwise stated, quotations are always without obligation; consequently, Phi-ton reserves the right
   1. to replace any materials with equivalent or superior materials.
   2. to change the price, if the conditions mentioned in article 4.1 apply or if it becomes necessary to make such changes.
2. A quotation is valid for the term specified in the quotation itself. If no term is mentioned, the quotation is valid for a period of thirty days.
3. Phi-ton reserves the right to refuse to accept orders.

Article 3 - Establishment of agreement

1. An agreement between Phi-ton and the buyer is only deemed to have been established if and to the extent that Phi-ton has accepted the written order given by the buyer by issuing a written order confirmation.
2. Supplemental agreements to or changes in the agreement only bind Phi-ton after these have been accepted in writing.

Article 4 - Prices

1. The prices quoted by Phi-ton are based on factors that determine the price which prevail at the time of the quotation, such as prices of materials, premiums, taxes, levies, freights, exchange rates and the like, including wages, calculated in accordance with the rates in force at Phi-ton.
2. The prices used by Phi-ton are in Euros, unless explicitly stated otherwise.

Article 5 - Term for fulfilment

1. Any term agreed upon for fulfilment of the agreement is not a deadline, unless explicitly otherwise agreed upon. In case of non-fulfilment, late fulfilment or incomplete fulfilment, the buyer must send Phi-ton a written notice of default.
2. If no deadline has been agreed, upon which the subject of the contract is explicitly intended to be dependent, any failure to adhere to the scheduled delivery deadline caused by Phi-ton lasting for less than 30 days shall not entitle the buyer to terminate the contract, seek any substitute performance by means of third parties, to make any claims arising from default or any claims for damages resulting from any failure to adhere to the delivery deadline. This shall apply subject to the condition that such failure to adhere to the delivery deadline is caused by preliminary suppliers of Phi-ton or by other companies appointed by Phi-ton in order to complete the delivery.

Article 6 - Delivery

1. Goods are delivered to the buyer's delivery address. The delivery address must be reasonably accessible to the means of transport commonly used for deliveries. The buyer must provide for sufficient loading and unloading facilities at the delivery address. The buyer will make every effort to ensure that any waiting time between the time when the arrival at the delivery address is announced and the time when the goods to be delivered can be unloaded is kept to a minimum.
2. Without prejudice to each party's professional responsibility and within the limits of Phi-ton's statutory obligations in this regard, within the European Union Phi-ton is responsible for the transport of the goods until their delivery to the buyer. In the case of delivery to other countries the buyer assumes responsibility for the transport and delivery of the goods outside the borders of the European Union. In this context, Phi-ton is entitled to impose compulsory rules and instructions upon (the employees of) the buyer, which must be fully observed by the buyer and its employees.
3. Phi-ton is at all times free to choose the means of transport, in so far as Phi-ton bears responsibility for transport. If the buyer wants a different transport method, Phi-ton shall not refuse to give its consent within the limits of what is considered reasonable and fair. This shall require, however, that the buyer also accepts responsibility for the transport within the European Union and shall bear all transport costs.
4. Phi-ton is entitled to make partial deliveries that can be invoiced separately.
5. Phi-ton shall inform the buyer by telephone and in writing that the goods are ready for dispatch. If the buyer fails to accept the goods within one week, Phi-ton has the following options:
   1. Phi-ton is entitled to adhere to the contract with the buyer. The agreed purchase price is immediately due for payment. In addition, Phi-ton can store the goods with a third party at the expense and risk of the buyer until the payment of the purchase price and storage costs have been received;
   2. Phi-ton is entitled to make alternative use of the goods intended for a buyer. In the case of standard goods Phi-ton can sell the goods to other purchasers for the same price. The buyer shall bear the costs of such alternative uses. In the case of custom designs and in the event that third parties cannot be charged the same price for the goods, Phi-ton is entitled to put the goods up for auction, provided Phi-ton informs the buyer without delay of the auction.

Article 7 - Complaints

1. The buyer must inspect the goods immediately upon delivery for any visible or invisible shortcomings or damage, within reason. The buyer must immediately report any visible shortcomings and/or damage in writing to Phi-ton, including all details. If the customer fails to inspect the goods to a reasonable extent and/or to report any problems immediately, the buyer forfeits the right to make any claims arising from such faults.
2. If the goods delivered only deviate from the agreement to an extent that is customary in the industry or cannot be technical avoided and/or show only minor deviations in terms of quality, dimensions, finishing or colour, the goods delivered are deemed to be conform to the agreement.
3. The buyer must inform Phi-ton in writing of any complaints regarding the goods delivered by Phi-ton other than those mentioned in paragraph 7.1 of this contract, immediately after the problem is observed. In no event can the buyer exercise any claims if such notification to Phi-ton is made more than seven (7) days after the moment the buyer could reasonably have discovered the defect.
4. The buyer must adhere strictly to the instructions and rules provided by Phi-ton concerning the method of storage. The buyer is not entitled to make any claims arising from the incorrect use of goods.
5. The buyer must always give Phi-ton the opportunity to repair any defects.
6. If the complaint is deemed valid by Phi-ton, it reserves the right to replace the goods.
7. Phi-ton will only accept returned goods after it has given its prior consent explicitly and in writing. Goods are returned subject to the condition that the goods have not suffered any damage at the hands of the buyer and that the buyer has respected Phi-ton's transport instructions in their entirety.
8. The presence of a defect as referred to in this article does not give the buyer the right to suspend the payment obligations.

Article 8 - Retention of title

1. Until the buyer has made all payments required by Phi-ton, Phi-ton retains ownership of the goods supplied. In the case of partial payments Phi-ton is entitled to determine how and for which goods partial payments may be accepted. The buyer remains responsible for the goods supplied to him for which payment has not been made. Phi-ton is prepared to transfer ownership to the buyer upon presentation of a bank guarantee from a major European bank for all payments to Phi-ton, from which the bank will make a payment following the first request from Phi-ton.
2. The buyer is required to keep the goods delivered subject to retention of title as the recognisable property of Phi-ton, and to exercise the requisite due care regarding these goods. Except with Phi-ton's prior written permission, the buyer is not permitted to resell or to use these goods, not even within the scope of normal operations.
3. In case of non-payment by the buyer, Phi-ton is entitled to repossess all goods that have not been paid for. In that case, the buyer authorises Phi-ton to arrange for these goods to be returned to Phi-ton at the expense and at the risk of the buyer. In addition the buyer shall grant to Phi-ton and its representatives and agents at all times unrestricted access to the area where the goods are located.
4. If and as long as the goods are owned by Phi-ton, the buyer will inform Phi-ton at once if the goods are (partially) lost and/or damaged, as well as in case the goods are seized (or threaten to be seized) or in case any other claim is exercised against the goods. Moreover, at Phi-ton's request, the buyer will inform Phi-ton immediately of the location of the goods owned by Phi-ton.
5. The buyer is required to insure the goods for the duration of the retained ownership against fire, explosion, storm and water damage as well as against theft and to allow Phi-ton to inspect the insurance policies in question at Phi-ton's first summons to this effect. The buyer will pledge all claims by the buyer against the insurers on account of the insurance policies mentioned above as additional security for Phi-ton's claims against the buyer, as soon as Phi-ton expresses a wish to this effect.

Article 9 - Trial shipments

1. Phi-ton can send 'trial' goods to the buyer for a specific period (trial period). The trial shipment is deemed to be a quotation and requires that the buyer handles the goods with the utmost care. The trial shipments are not intended for use, unless another arrangement has been made explicitly and in writing. The buyer is entitled to inspect the sample in order to ascertain whether the goods possess the characteristics required.
2. During the trial period, the goods sent remain Phi-ton's property and the buyer bears the risks associated with the goods.
3. After the end of the trial period, the buyer is required to immediately return the goods to Phi-ton in the manner described in article 7.7, unless otherwise agreed in writing. In addition, the buyer is required to inform Phi-ton immediately in writing and in detail of the results of its inspections.
4. If the returned goods have been damaged or in Phi-ton's opinion can no longer be sold for any reason whatsoever, Phi-ton is entitled to claim from the buyer payment of the sum that it would have expected if the goods had been sold.

Article 10 - Payments

1. All payments must be made into the bank or giro account designated by Phi-ton or at Phi-ton's office.
2. Unless otherwise agreed upon in writing, all payments must be made in Euros.
3. Phi-ton is entitled without providing any reasons to make it a condition for any delivery that the buyer pays in advance the purchase price in its entirety or in part. Phi-ton is also entitled without giving any reasons to make it a condition for any delivery:
   1. for the buyer to provide a bank guarantee from a major European bank as security for his payment, which will pay following the first request from Phi-ton;
   2. or for the buyer to provide Phi-ton with an irrevocable letter of credit from a major European bank as security, which is equivalent to a bank guarantee;
   3. or for the buyer to provide a different irrevocable undertaking to pay from a major European bank.
4. Unless otherwise agreed in writing, the buyer must pay for all deliveries of goods and/or services rendered within thirty (30) days after the invoice date into the bank or giro account designated by Phi-ton, without applying any discount and without any right to offsetting. The value date specified by the bank is the decisive factor and is therefore denoted as payment date.
5. If the invoice has not been paid within thirty (30) days after the invoice date, the buyer is in default and Phi-ton is entitled to charge the statutory interest on the amount not yet paid, starting from fourteen (14) days after the invoice date.
6. Phi-ton does not accept any bills of exchange as a method of payment. In so far as Phi-ton decides to accept a cheque in an exceptional case, the cheque will only be accepted on the condition that it leaves the buyer's account at Phi-ton in credit.
7. The buyer is also required to pay if it does not use the goods delivered and/or services rendered by Phi-ton or if the buyer fails to obtain the intended result.

Article 11 - Non-culpable failure in fulfilling the agreement

1. A non-culpable failure in fulfilling the agreement on the part of Phi-ton is involved if - after the agreement has been concluded - Phi-ton is prevented from fulfilling its obligations under this agreement or the preparation for this as a result of, among other things, riot, acts of war, war, terrorist attacks, natural disasters, vandalism, fire, water damage, floods, strikes, or government measures.
2. In case of non-culpable failures on the part of Phi-ton as referred to in the previous paragraph, the delivery and other obligations of Phi-ton are suspended. Phi-ton is furthermore entitled to fulfil its obligations as soon as this is reasonably possible.
3. If as a result of a non-culpable failure in the fulfilment of the agreement on the part of Phi-ton the performance of the agreement is delayed by more than two months, both Phi-ton and the buyer are authorised to invoke the dissolution of the agreement by means of a written notification. In the latter case, Phi-ton and the buyer must settle the consequences involved with the agreement in joint consultation.
4. In the event of dissolution or suspension of the agreement as a result of a non-culpable failure, Phi-ton will not be required to pay any damages or compensation.

Article 12 - Guarantee

1. Unless explicitly otherwise agreed upon in writing, a guarantee is issued with regard to the new goods delivered and/or services rendered by Phi-ton for defective material and manufacturing defects occurring in normal use, for a period as specified in the guarantee certificate issued upon delivery.
2. Without prejudice to the stipulations of paragraph 1, no guarantee is issued for:
   1. minor differences in quality, dimensions, finishing or colour that are customary in the industry or which cannot be technically avoided;
   2. wear and tear of the goods in question as a result of normal use;
   3. any damage resulting from improper use.
3. The guarantee no longer applies if the buyer processes the goods or alters them significantly or through incorrect storage or use.

Article 13 - Liability

1. Any liability on the part of Phi-ton that is not explicitly acknowledged in these terms and conditions or in the agreement, in particular any liability to pay damages based on any legal ground whatsoever, including to the extent that such liability is related to the buyer's rights of guarantee, is excluded to the extent as permitted by law.
2. Within this framework Phi-ton specifically does not accept any liability for personal accidents and/or damage of objects, machines, systems and buildings or for any trading losses whatsoever, suffered by the buyer or by third parties and caused by the incorrect delivery or errors and defects in the goods delivered by Phi-ton. Within this framework, Phi-ton does not accept any liability for damage occurring as a result of any incorrect or improper use of the goods delivered by Phi-ton. Nor is Phi-ton liable within this framework, in the event of Phi-ton being unable to fulfil its obligations under the agreement on account of any non-culpable failure.
3. The limitations set forth in this article do not apply if the damage is the result of intent or gross negligence on the part of Phi-ton or its managers.

Article 14 - Packaging

1. Only if the buyer returns the packaging from Phi-ton within two (2) months after the invoice date (carriage paid return), empty and undamaged, will Phi-ton accept this returned packaging against the price calculated.
2. Phi-ton does not accept any packaging that is not from Phi-ton.
3. Packaging must be returned to Phi-ton in the manner described in article 7.7 and must always be accompanied by a specification, which must display the buyer and the delivery, for which the packaging was ultimately intended. Should this specification not be present, Phi-ton is not required to obtain this information and will only make payments for returned packaging on the basis of the information available.

Article 15 - Security

1. Phi-ton is entitled to terminate the contract without notice and to repossess immediately any good supplied:
   1. if the buyer is bankrupt or heavily indebted. Bankruptcy is defined as follows:
      1. if applications are submitted to an authority by a third party or by the buyer himself concerning his inability to pay or insolvency, with the intention or consequence of dissolving or liquidating the buyer's assets.
      2. if the buyer has not fulfilled his payment commitments to Phi-ton within 7 days despite repeated reminders, and if the last reminder mentiones termination without notice.
   2. if the goods supplied or other items or demands or accounts of third parties have been pledged. Moreover, both Phi-ton and the buyer are entitled to terminate the contract without notice if it becomes impossible for either party to adhere to the contract due to reasons that arise from the conduct of the other respective party.
2. In the event of the termination without notice of the contract for the above mentioned reasons the party that caused or is responsible for the reason of termination shall bear the costs and compensate for all damages.

Article 16 - Applicable law, disputes

1. All agreements concluded with Phi-ton and these General Terms and Conditions will be governed by and construed in conformance with Dutch law, with the exclusion of the United Nations Convention on contracts for the international sale of goods (Vienna Sales Convention, concluded on 1 April 1980 in Vienna, Trb. 1981/184).
2. With regard to all disputes that may arise between Phi-ton and the buyer as a result of these General Terms and Conditions or as a result of an agreement to which these terms and conditions apply, the Court of Haarlem in the Netherlands will have exclusive jurisdiction, subject to application of Section 108 (2) of the Dutch Code of Civil Procedure. However, Phi-ton continues to be authorised to summon the buyer before the civil court that has jurisdiction according to the law or the applicable international convention. However, the parties will first try to reach an amicable settlement.
3. Except in case of proof to the contrary, Phi-ton's administrative records are decisive regarding all agreements concluded by Phi-ton.

Article 17 - Filing

1. These General Terms and Conditions have been filed with the Court Registry Office of the Court of Haarlem The Netherlands under number (2004/64).
2. In the event of a dispute between the parties before a court in the Netherlands, only the terms of business of Phi-ton in Dutch language shall apply. In so far as the parties enter into a dispute before a court, which is located in the same district as the main office of the customer, only the terms of business of Phi-ton in the language of this court shall apply. 1.
3. In so far as these terms of business conflict with a provision of the corresponding declaration of intent concerning:
   1. Quotation
   2. Order and
   3. Order confirmation and
   4. Order processing
   The corresponding declaration of intent relating to quotation, order, order confirmation and order processing shall take precedence over the terms of business.
4. In so far a provision of these terms of business proves to be ineffective, the remaining conditions shall remain valid. The contractual parties shall replace the ineffective conditions with an effective condition that economically approaches as closely as possible ineffective condition.

Phi-ton International B.V.

Boekweitstraat 90
P.O. Box 91
2150 AB Nieuw-Vennep

Tel. 0031-(0)252-626565
Fax. 0031-(0)252-625590
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