TERMS & CONDITIONS OF SENSIBLUE B.V. as per 1-1-2021

DEFINITIONS:

The following definitions apply in these terms and conditions:

Client: The legal entity who comes into contact with SENSIBLUE for the purchase of products or services from SENSIBLUE.

SENSIBLUE: SENSIBLUE B.V.

1. APPLICATION

1.1. These conditions apply to all our offers, supplies and deliveries. They form part of all contracts and agreements concluded by SENSIBLUE regarding purchase and sale or other comparable legal relations, in which SENSIBLUE acts as supplier, unless SENSIBLUE has expressly agreed in writing to these conditions becoming inoperative, either entirely or in part.

1.2. These conditions can only be modified in writing.

1.3. Verbal undertakings or commitments are non-binding.

1.4. Application of Clients own general terms and conditions, if any, is expressly excluded.

2. OFFERS: ESTABLISHMENT OF AGREEMENT

2.1. All our offers and all information given in our price-lists, brochures, advertisements, etc., such as drawings, statements of dimensions and weights related to the offered products are without engagement, unless we have expressly stated otherwise in writing. All our offers have a validity of 30 (thirty) days, unless we have expressly agreed in writing a different period of validity. 

2.2. Agreements are only established after SENSIBLUE has received the by Client signed order confirmation or the signed ‘’for agreed’’ offer and SENSIBLUE has sent a written confirmation of the agreements.As long as the order confirmation or offer have not been returned, SENSIBLUE reserves the right to withdraw its offer.Agreements are also established if we have already begun with the execution of same. In such cases, the applicability of these general terms and conditions shall not be affected.

2.3. Changes to the signed order confirmation or to the "for agreed’’ signed offer by Client, whether or not on minor points, that differ from the order confirmation or offer, will be considered as a (further) offer from Client to which SENSIBLUE is not legally bound. The agreement will then not be concluded unless SENSIBLUE explicitly accepts the (further) offer of Client.

2.4. Verbal commitments or undertakings by our employees are non-binding, unless:

• they have been confirmed by SENSIBLUE in writing; or

• SENSIBLUE has already begun with the execution of same.

2.5. At the written request of Client SENSIBLUE shall execute all modifications to the order, as indicated by Client, provided that such modifications can be reasonably performed, whilst reserving our right to charge for the additional expenses involved and/or adjust the delivery times accordingly.

3. PRICES

3.1. All our sales prices are exclusive of VAT and EX-WORKS, respectively ex SENSIBLUE-warehouse, packed or unpacked and in Euro.

3.2. Changes in cost factors after the establishment of the agreement, in relation to products to be supplied, entitle SENSIBLUE to pass on the charge for any such changes to Client. If, after establishment of the agreement, changes of import duties, taxes or impositions by the government should occur, having a bearing on the products to be supplied, such changes will be passed on to Client. SENSIBLUE may pass on the above costs to Client without giving Client the right to dissolve the agreement.

4. DELIVERY; PACKING

4.1. Unless otherwise agreed in writing, delivery times and delivery schedules stated by SENSIBLUE are valid as an indication, not as a deadline. Except in cases of gross negligence on our part, Client cannot derive a right from our overrunning of a delivery time, to claim damages or to dissolve the agreement.

4.2. The delivery time will not take effect until we shall have received from Client all information which is relevant for the execution of the order, as well as the down payment, if so agreed.

4.3. Unless otherwise agreed, delivery of the products takes place ex our warehouse; this means that the products will travel at the risk and peril of Client, even if SENSIBLUE determines the mode of transportation.

4.4. Despatch and forwarding always take place during normal working hours.

4.5. If Client does not take delivery of the ordered products within the agreed or stated delivery period, SENSIBLUE shall be entitled to charge interest and costs for stocking.

4.6. Special packing, other than standard packing materials will be charged to Client, who is entitled to a refund, if these packing materials are returned to SENSIBLUE in undamaged condition, freight prepaid.

5. PAYMENTS, DUE DATES, INTERESTS AND COLLECTION CHARGES

5.1. Upon delivery of the products payment must be made in full. In the case of articles especially made on behalf of Client, payment must be made in full, prior to our starting production.

5.2. In the case that payment on open account has been agreed, payment must be effected within 30 (thirty) days after receipt of the invoice, in accordance with the payment mode as indicated on the order confirmation and on the invoice, without discount and/or postponement (in Dutch: opschorting).

5.3. Set-off is not permitted by Client.

5.4. The above mentioned payment conditions must also be followed if certain parts of the total supply are missing, which are not of major importance and the absence of which does not prevent the use of the article supplied.

5.5. In the case that an invoice is not paid in time by Client, Client is immediately in default and liable to pay interest on the invoice amount due, on the basis of €-libor plus 3% per annum, from the day of the default untill the day that the invoices is completely paid by Client.

5.6. In case of default Client is obliged to pay all extra judicial costs, which are set at 15% of he total amount due, with a minimum of € 500,= ex VAT.

5.7. In case of default of Client, all SENSIBLUE other receivables, from Client, regardless of whether SENSIBLUE has already invoiced these receivables, are immediately payable.This paragraph will also apply if and when Client is declared bankrupt, subject to suspension of payment (in Dutch: surseance van betaling) or if Client is a natural person in the case Client falls under the Natural Persons Debt Restructuring Act (in Dutch: Wet schuldsanering natuurlijke personen) , as well as in the case of a merger or liquidation, seizure of an important part of (the company of) Client or decease if Client is a natural person.

5.8. Each payment serves primarily to settle any extrajudicial collecting-charges, any legal costs and the interests owed by Client. Thereafter the payment will be deducted from the oldest amounts due for payment, notwithstanding any different instructions by Client.

5.9. Client can only dispute an invoice within the term of payment.

5.10. With a view to our commercial interests, SENSIBLUE reserves the right to demand prepayment or the giving of security, in the form required by SENSIBLUE, for the first delivery or for further deliveries. In the case that the requested prepayment fails to arrive and/or the required security is not given to SENSIBLUE’ satisfaction, SENSIBLUE reserves the right to postpone the execution of the agreement, or, as the case may be, to cancel the agreement for the remaining and not yet executed portion, by means of a announcement in writing, without prejudice to our right to claim full damages.

6. QUALITY AND ACCEPTANCE; CLAIMS

6.1. Even in the case of reference to a quality standard made by SENSIBLUE, the products supplied do not have specific or particular properties. No guarantees, as indicated in the E.C. directive 99/44, paragraph 1, sub section 2, are given, unless expressly agreed otherwise in writing.

6.2. Upon arrival of the products supplied, Client is obliged to inspect them for completeness and visible damage.

6.3. In any case SENSIBLUE shall not be responsible for defects which will show up or are, entirely or in part, the result of such events as:

• the non-observance of installation, operation or maintenance instructions by Client, or use, other than normally expected;

• deficiencies which are not due to faulty materials or construction, such as: deficiencies on account of normal wear and tear, internal or external contamination, damage by rust or paint, transportation, frost, excessive heat, overloading or dropping of the products;

• repair by Client and/or third parties.

6.4. Claims will only be processed by SENSIBLUE if they are submitted immediately by Client after arrival of the products, or in any case not later than 14 (fourteen) days thereafter, or at least in any case within 14 (fourteen) days after the time that defects could be reasonably ascertained. The products in question must then be returned to SENSIBLUE by Client forthwith and at his expense, so that SENSIBLUE has the opportunity to judge the validity of the complaint(s).

6.5. Claims will only be processed by SENSIBLUE if and when Client has fulfilled all his obligations towards SENSIBLUE. Such claims do not constitute a right for Client to withhold payment.

6.6. If Client requires SENSIBLUE to investigate a complaint in a location other than SENSIBLUE’ own premises, the relevant cost thereof are borne by Client and the inquiries will only commence after payment in full by Client of an advance of the anticipated costs, as established by SENSIBLUE (including travel and accommodation expenses, mileage and cost of labour).

6.7. Claims and defences by Client, based on the supposition that products supplied are not in conformity with the agreement, will become superannuated after a period of one year after delivery of the products, unless another agreement has been confirmed in writing.

6.8. If the products supplied do not fulfil the requirements, as set by the agreement, SENSIBLUE shall only be obliged, within a reasonable period of time, to supply any missing parts or, at SENSIBLUE’ own option, to repair or replace the products supplied, except in a case that this would be impossible or out of proportion for SENSIBLUE. Any other or extended liability, especially with a view to damage of property, is excluded. Any cost in excess of the sole obligation, described here above, such as (but not limited to): transportation charges, travel and accomodation expenses and mileage, expenses of hoisting or docking, as well as the cost of disassembling and reassembling shall be borne by Client.

6.9. Only if SENSIBLUE is in default in a case of repair or replacement, is Client entitled to dissolution of the agreement. Default only occurs if and when Client declares SENSIBLUE in default and warns SENSIBLUE in writing, whilst granting us a reasonable period to comply.

6.10. If repair or replacement cannot be considered, on the account of being impossible or out of proportion for SENSIBLUE, Client allows SENSIBLUE to establish an appropriate price reduction, the level of which is determined solely by SENSIBLUE. In this case Client has no right to dissolve the agreement.

6.11. In the case of deficiencies SENSIBLUE only grants Client those same rights as are granted to SENSIBLUE by our supplier.

6.12. If Client does not fulfil his obligations, resulting from the agreement which he has concluded with SENSIBLUE or resulting from a related agreement, or does not fulfil them completely or in time, SENSIBLUE is not liable for any guarantee whatsoever, pertaining to any of these agreements.

6.13. If Client executes or arranges repair work or other operations without prior permission in writing from SENSIBLUE, any claim to guarantee is abrogated.

6.14. If, in fulfilment of SENSIBLUE’ obligations, SENSIBLUE replaces parts/products, the old parts/products that have been replaced will become the property of SENSIBLUE. The original term of limitation, in accordance with paragraph 6.7, is not extended in the case of replacement or repair.

6.15. No guarantee is given relating to inspections, recommendations and similar performances, executed or ordered by SENSIBLUE.

7. FORCE MAJEURE

7.1. All circumstances beyond the will, influence and doing of SENSIBLUE, which are of such nature that (further) fulfilment of SENSIBLUE’ obligations cannot reasonably be demanded from SENSIBLUE, are considered cases of force majeure.

7.2. Force majeure includes but is not limited to: state of war or siege or declaration of mobilisation in the Netherlands, or in the country of origin of the products to be supplied, intervention by authorities, requisition of stocks, radical changes of currency relations, strikes, lock-outs, lock-downs, production retrenchments on account of shortage of raw or auxiliary materials, inundation, fire, congestion of transportation lines, problems with production tools or any other circumstance having a severely restrictive influence on production and/or delivery.

7.3. In the case of force majeure SENSIBLUE has the right, at its option, to waive the agreement without legal intervention, insofar it is not yet executed, entirely or in part, or to extend the agreed delivery time by the anticipated duration of the force majeure. SENSIBLUE retains the right to invoice Client for the already executed part of the agreement. If SENSIBLUE later does execute the agreement, Client will owe the entire agreed fee without any form of discount. In neither case can SENSIBLUE be held liable for whatever damages.

8. INTELLECTUAL PROPERTY

8.1. SENSIBLUE retains the copyrights, trademark rights, trade name rights, domain name rights, design rights, patent rights, and other rights it accrues on the basis of the intellectual and industrial legislation and regulations relating to all the products or services it supplies, insofar as these rights do not belong to any third party.

8.2. Client may not have products supplied by SENSIBLUE copied elsewhere, or manufacture imitations thereof that differ in only minor details from the products or service supplied, or become directly or indirectly involved in this.

8.3. Without prior written permission by SENSIBLUE, Client is not allowed to use or copy pictures, images, designs, brochures, videos of the products, and other material or to use the information on its internet site. Permission by SENSIBLUE does not affect the rights of the author or right owner of the information provided.

8.4. Any offers made by SENSIBLUE, as well as drawings, calculations, software, descriptions, models, tools etc., produced and furnished by SENSIBLUE, remain our property, whether or not SENSIBLUE has charged costs for them.

8.5. Any information contained in such documents or software or which serves as underlying know-how of production and construction methods, products, etc., remains SENSIBLUE’ trade secret and exclusive property, even if SENSIBLUE has charged for it As long as the information did not fall in the public domain, Client is not entitled to disclose the information, without the specific prior written permission of SENSIBLUE.

9. LIABILITY; DAMAGES

9.1. The liability of SENSIBLUE is limited to the fulfilment of its obligations in respect to guarantee, as described in paragraph 6 of these General Terms and Conditions.

9.2. The following events cannot be attributed to the risk of SENSIBLUE: damage due to delay or omission of the delivery of the products or services, damage due to a product recall.

9.3. SENSIBLUE cannot ever be held liable for damages exceeding the nominal value of the invoice related to the products supplied. Nor can SENSIBLUE be held liable for loss of profits or consequential damage, of whatever nature. 

9.4. Client is bound to hold SENSIBLUE harmless or to indemnify SENSIBLUE against all claims, lodged by third parties in regard to compensation of whatever damage, of which our responsibility is excluded in these General Terms and Conditions, in the relation with Client.

9.5. SENSIBLUE is not liable for damage caused by adjustment and/or repair by Client itself and/or by third parties.

9.6. Any exclusion and limitation of liability in these General Terms and Conditions does not apply in the event of fault or gross culpability on the part of SENSIBLUE.

9.7. The contents of this article are without prejudice to our legally established liabilities, resulting from mandatory legal provisions.

9.8.  We stipulate for all legal and contractual means of defence, which we can invoke in defence of our own liability in regard to the other party, also on behalf of our subordinates and non-subordinates, for whose conduct we might be made responsible by law.

10. TRANSFER OF RISK AND PROPERTY 

10.1. From the moment of shipment of the product, or of the product being ready for shipment, Client bears the risk of all direct and indirect damage, afflicted to or caused by this product, unless such event can be attributed to gross culpability on the part of SENSIBLUE. If Client, after being in default, remains unwilling to take delivery of the product, SENSIBLUE is entitled to charge Client for the cost of warehousing the product.

10.2. SENSIBLUE reserves its right of property on all products supplied by SENSIBLUE, until complete fulfilment of:

• all obligations by Client, relating to all products supplied or to be supplied by virtue of the agreement or of related agreements, as well as any work executed or yet to be done by virtue of such agreement;

• all SENSIBLUE claims in relation to the shortfall of Client in the fulfilment of such agreement(s), including interest and expenses.

10.3. Client is not allowed to claim a right of retention in relation to the cost of warehousing, nor to compensate for these costs when fulfilling his obligations.

10.4. Only after Client has fulfilled all his obligations under the agreement, Client will become the owner of the products. If Client is in default regarding the fulfilment of his obligations, referred to in paragraph 2 of this article, SENSIBLUE is entitled to take back the products which are still its property or to have them brought back from the place where they are located. Should this case arise, SENSIBLUE has the right to an unimpeded access to the products supplied. Client extends his fullest cooperation in order to enable SENSIBLUE to exercise its property rights by means of the taking back of products supplied, including any disassembly work, at the cost of Client.

11. SERVICES

11.1. The liability of SENSIBLUE in respect to services such as installation, as well as repair, revision and maintenance work is, in accordance with the stipulations of paragraph 9, limited to damage resulting from gross negligence or intent on the part of SENSIBLUE. Liability for subcontractors is excluded, insofar legally allowed. All other stipulations of these General Terms and Conditions are applicable to our services.

12.RETURN SHIPMENTS

12.1. Only products which are in brand new condition and in their original, undamaged packing can be returned to SENSIBLUE within 14 (fourteen) days after the delivery. SENSIBLUE shall confirm in writing whether or not these products can be returned. SENSIBLUE is not obliged to reimburse products which are returned to SENSIBLUE unsolicited. Such products are stored with SENSIBLUE at the charge of Client, without this meaning that the products are actually taken back. In the case of SENSIBLUE taking back products, unless SENSIBLUE has made an alternative offer, SENSIBLUE shall charge 15% of the net value of the products, for administration and restocking expenses.

13. TERMINATION OF THE AGREEMENT

13.1. Without prejudice to its other rights, SENSIBLUE has the right to terminate the agreement, in whole or in part, without any liability for reimbursement of costs or reimbursement of prepaid amounts, by dissolution or cancellation by means of a written statement, without judicial intervention or notice of default, in the case:

• Client does not, not timely or not properly fulfill any obligation;

• Client is placed under guardianship;

• Client (partially) shuts down his company (including the inability to meet his current obligations);

• apparently reduced creditworthiness of Client;

• a request for suspension of payment (in Dutch: surseance van betaling, bankruptcy or access to the Natural Persons Debt Restructuring Act (in Dutch: Wet schuldsanering natuurlijke personen) by or against the Client;

• the ownership or control over (the business of) the Client is wholly or predominantly transferred to others or his business merges or is split up;

• the assets of the Client are seized in such a way that in the opinion of SENSIBLUE Client will no longer be able to properly fulfill its obligations.

13.2. All claims that SENSIBLUE may have or obtain as a result of any termination are immediately due and payable in full and can be set off against claims which the Client may have or obtain against SENSIBLUE.

14. APPLICABLE LAW

14.1. All legal connections between Client and SENSIBLUE are governed by Dutch law. Application of the so-called Vienna Sales Convention is expressly excluded.

14.2. All disputes resulting directly or indirectly from agreements to which these General Terms and Conditions apply, are settled by the competent judge in the jurisdiction of SENSIBLUE, unless: mandatory legal directives rule otherwise, or if SENSIBLUE, being the claimant or requesting party, elect to submit to the competent judge in the place of residence or domicile of Client.

15. GENERAL

15.1. Client binds itself to impose these General Terms and Conditions upon its clients and/or employees, insofar permitted by law.

15.2. Should it appear that one or more stipulations in these General Terms and Conditions are not legally valid, all other stipulations remain fully in force. In that case, other stipulations will be substituted in lieu of such invalid stipulations, which will come closest possible to the intention of parties and the intended economic results, in an effective lawful manner.