TERMS & CONDITIONS OF SALE OF GOODS
1 Definitions
1.1 In this document, "Commaxx" means Commaxx BV, Commaxx Asia Ltd., Commaxx GmbH, Commaxx Nordic A/S and/or Lenco Benelux BV, as the case may be; "agreement" means these Terms & Conditions of Sale of Goods, together with the relevant order confirmation(s) and dispatch confirmation(s) issued by Commaxx, which set forth the terms and conditions for the delivery of Products by Commaxx to the Customer; "Product" or "Products" means the consumer electronics, accessories, other electric products, spare parts, and all related documentation to be supplied by Commaxx; "Customer" means each person or entity that enters into an agreement with Commaxx.
2 Applicability
2.1 These terms and conditions are applicable to the exclusion of any genera! terms used by the Customer. Different terms or conditions only apply if and in so far as they have been separately accepted by Commaxx expressly for each individual agreement.
3 Orders
3.1 An order constitutes an offer to Commaxx to buy a Product. All orders are subject to acceptance by Commaxx, and Commaxx will confirm such acceptance to the Customer by sending an order confirmation (the "Order Confirmation"). The agreement between Commaxx and the Customer will only be formed when Commaxx sends the Order Confirmation.
3.2 The agreement will relate only to those Products whose purchase Commaxx has confirmed in the Order Confirmation. Commaxx will not be obliged to supply any other Products which may have been part of the order until the purchase of such Products has been confirmed in a separate Order Confirmation.
4 Dispatch
4.1 The Incoterms valid at the time are decisive for the meaning of the transport and delivery terms used by Commaxx. Unless otherwise agreed in writing, delivery is made FOB (port in China).
4.2 Commaxx will inform the Customer about the expected delivery date by sending a dispatch confirmation (the "Dispatch Confirmation"). Commaxx will endeavor to fulfil the order within thirty days of the date of the expected delivery date as referred to in the Order Confirmation. Time will not be of the essence.
4.3 The Products will be delivered to the delivery address provided by the Customer when placing the order.
4.4 In the event the ordered Product is not or no longer available, Commaxx is entitled to deliver a substitute product of at least the same quality for the same price.
4.5 Commaxx may deliver the Products in parts. Commaxx is entitled to invoice partial deliveries separately.
4.6 In the event that the Customer does not take delivery of the Products Commaxx may, at its discretion, store them at the Customer's cost and risk until they can be re delivered at the Customer's cost. In such case Commaxx has the choice of either claiming specific performance of the agreement or to terminate the agreement without prejudice to its rights to damages for loss suffered and the loss of profit, including storage casts.
4.7 Until full payment has been received by Commaxx, Commaxx retains title to the Products.
5 Prices
5.1 Prices of Products are exclusive of transport, VAT and any possible other casts or levies, except as expressly set out in the Order Confirmation.
5.2 Prices are liable to change at any time, but changes will not affect orders in respect of which Commaxx has already sent a Dispatch Confirmation.
5.3 Commaxx is entitled to require an adequate financial security from the Customer.
6 Payment
6.1 Payment for all Products must be made in instalments as set out in the Order Confirmation and must be made in full prior to the dispatch of the Products or, if Commaxx agrees to credit terms, within 30 days of the date of the invoice.
6.2 Payments must be made in the invoiced currency without deduction or set-off and without any suspension for alleged or actual shortcomings.
6.3 In the event payment has not been received on time the Customer owes, without further notice of default, an interest payment of 1.5 percent per month on the invoice amount, calculated from the due date, up to and including the day of payment.
6.4 Commaxx is entitled to dissolve the agreement completely or in part with immediate effect by means of a declaration in conformity with clause 10 and without notice of default if (i) the Customer fails to perform properly one or more of its contractual obligations, fails to perform them on time or does not perform them at all; (ii) the Customer becomes bankrupt, applies for a provisional or permanent payment moratorium, liquidates his business; or (iii) attachment is laid on all or part of the Customer's properties.
7 Risk and title
7.1 The Products will be at the Customer's risk from the time of delivery.
7.2 Ownership of the Products will pass to the Customer on delivery, subject to sub clause 4.7 hereof.
8 Intellectual Property
s.1 The Customer is not permitted to change or remove designations of patents, copyright notices, brands, trademarks, trade names or other intellectual property rights from any Product.
9 Liability
9.1 Commaxx warrants to the Customer that any Product purchased from Commaxx is of satisfactory quality and reasonably fit for the purposes for which products of the kind are commonly supplied.
,9.2 Not covered by any warranty are defects which occur due to or are (also) the result of normal wear and tear, damage which is the consequence of failing to comply with the user manuals or other published guidelines by Commaxx, improper or careless or abusive use, accidents, fire, liquid contact or other external cause, repair or other work by third parties or by the Customer without the prior written consent of Commaxx. No warranty applies if the Product is stolen or if any label or identification number has been removed from the Product or has been changed.
9.3 Any possible complaint regarding the quantity of the delivered Products needs to be recorded on the consignment note or delivery note at delivery, failing which the quantities as stated on the consignment note or delivery note shall be compelling proof against the Customer.
9.4 Warranty claims need to be reported in writing to Commaxx within seven working days of a defect occurring. In the absence of a timely complaint any claim against Commaxx lapses.
9.5 If the Customer submits a valid claim under the warranty, Commaxx will - at its option
- repair the Product, replace the Product with a product that is at least functionally equivalent to the Product, or refund the purchase price in exchange for the return of the Product.
9.6 The Customer needs to satisfy itself that the Products and the accompanying
packaging, manuals and the like meet all relevant regulations applicable to such in the country of destination or use. The use of the Products and whether such are in accordance with the regulations in force in the country of destination or use are for the risk of the Customer.
9.7 Commaxx shall not have any liability to the Customer (howsoever arising, including any liability in tort) under or in connection with any agreement, in each case whether direct, indirect, special and/or consequential loss or damage, for (i) any loss of profits or anticipated savings; (ii) loss of revenue; (iii) loss of or damage to reputation or goodwill; (iv) loss of opportunity; (v) wasted management or other staff time; (vi) losses or liabilities under or in relation to any other contract; or (vii) for any other indirect, special and/or consequential loss or damage.
9.8 In the event of any breach of sub-clause 9.5 hereof by Commaxx, any other breach of the agreement by Commaxx or any liability of Commaxx to the Customer howsoever arising under or in connection with any agreement and notwithstanding sub-clause 9.7
hereof, the remedies of the Customer shall be limited to damages which (including all losses, liabilities, claims, actions, demands, proceedings, casts, charges and
expenses in respect thereof or in relation thereto) shall in no circumstances exceed the total funds paid by the Customer to Commaxx for the Products giving rise to such damages.
9.9 In case of any conflict between this clause and any other clause of these terms and conditions, the provisions of this clause 9 shall prevail.
9.10 For the avoidance of any doubt, this clause 9 shall remain in full force and effect notwithstanding the termination, repudiation or expiry of any agreement.
10 Notices
10.1 All notices given by the Customer to Commaxx must be given at the address stated in the Order Confirmation. Commaxx may give notice to the Customer at either the e-mail or postal address provided by the Customer when placing an order. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or
three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
11 Transfer of rights and obligations
11.1 All agreements between Commaxx and the Customer are binding on their respective successors and assigns.
11.2 The Customer may not transfer, assign, charge, sub-contract or otherwise dispose of an agreement, or any of its rights or obligations arising under it, without Commaxx's prior written consent.
11.3 Commaxx may transfer, assign, charge, sub-contract or otherwise dispose of an agreement, or any of its rights or obligations arising under it, at any time during the term of the agreement.
12 Force Majeure
12.1 Commaxx will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under an agreement that is caused by events outside Commaxx's reasonable control (a "Force Majeure Event").
12.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Commaxx's reasonable control and includes in particular (without limitation): (i) strikes, lock-outs or other industrial action; (ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster; (iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; (v) impossibility of the use of public or private telecommunications networks; (vi) the acts, decrees, legislation, regulations or restrictions of any government; and (vii) the non-delivery or late delivery of products or services to Commaxx by third parties engaged by Commaxx.
12.3 Commaxx's performance under any agreement is deemed to be suspended for the period that the Force Majeure Event continues, and Commaxx will have an extension of time for performance for the duration of that period.
12.4 In the event that any Force Majeure Event continues for more than thirty consecutive days the parties will be entitled to terminate that part of the agreement which cannot be performed by serving written notice on the other.
13 Waiver
13.1 If Commaxx fails, at any time during the term of an agreement, to insist upon strict performance of any of the Customer's obligations under the agreement or any of these terms and conditions, or if Commaxx fails to exercise any of the rights or
remedies to which it is entitled under the agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve the Customer from compliance with such obligations.
13.2 A waiver by Commaxx of any default shall not constitute a waiver of any subsequent default.
13.3 No waiver by Commaxx of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Customer in writing in accordance with clause 10.
14 Severability
14.1 If any of these terms and conditions or any provisions of an agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
14.2 The parties have not entered into the agreement in reliance upon any representation, warranty or promise and no such representation or warranty or any other term is to be implied in it whether by virtue of any usage or course of dealing or otherwise except as expressly set out in it.
15 Our right to vary these terms and conditions
15.1 Commaxx has the right to revise and amend these terms and conditions from time to time.
15.2 The Customer will be subject to the policies and terms and conditions in force at the time that it orders Products from Commaxx, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed), or if Commaxx notifies the Customer of the change to those policies or these terms and conditions before Commaxx sends the Dispatch Confirmation (in which case Commaxx has the right to assume that the Customer has accepted the change to the terms and conditions, unless it notifies Commaxx to the contrary within seven working days of receipt of the Products).
16 Law and jurisdiction
16.1 The agreement(s) between Commaxx and the Customer shall be governed by and construed in accordance with the laws of The Netherlands.
16.2 In addition, the United Nations Convention on Contracts for the International Sales of Goods (Vienna Sales Convention, 1980) shall apply to the agreement(s) between Commaxx and the Customer.
16.3 All disputes arising out of or in connection with the agreement and any other agreement(s) between Commaxx and the Customer shall be finally settled under the Rules of Arbitration of the Netherlands Arbitration Institute by one or more arbitrators appointed in accordance with the said rules. The arbitration shall be conducted in the English language. The place of arbitration shall be Amsterdam (The Netherlands). In deviation from this provision, Commaxx will also and at all times be entitled to submit a dispute or claim to the competent court for the place where the Customer has its residence or registered or actual place of business.