Terms & Conditions — Kiama Distribution

General Terms and Conditions

Sales and Delivery

General conditions of sale and delivery of Kiama Holding B.V., also trading under “Kiama Holding”, “International Marine Wholesalers” and “Kiama Distribution”.

Article 1 General
1. These general terms and conditions apply to and are part of all offers and agreements related to the delivery of goods (“the Goods”) and/or the rendering of services (“the Services”) by Kiama Holding and/or International Marine Wholesalers and/or Kiama Distribution (“KH/IMW/KD”) to a customer (“the Customer”)
2. Deviations from these general terms and conditions apply only if expressly accepted in writing by KH/IMW/KD and only pertain to the agreement for which the deviations have been accepted.
3. The applicability of the Customer’s general terms and conditions and any other general conditions is hereby explicitly rejected.
4. In these general terms and conditions, “Agreement” means any agreement for the delivery of Goods and/or the rendering of Services by KH/IMW/KD to the customer. Insofar as these general terms and conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.
5. The term 'in writing' shall have the following meaning: by letter, by fax or by e-mail.

Article 2 – Offers
1. KH/IMW/KD’s offers are valid for a ten (10) working days period only and are without obligations. KH/IMW/KD is entitled to withdraw any offer (without incurring any liability) within two (2) working days after receipt of the acceptance of the offer by the Customer
2. Contents of price-lists, brochures and other information provided in connection with an offer will be as accurate as possible, but are only binding if expressly confirmed by KH/IMW/KD.
3. Samples supplied by KH/IMW/KD may contain minor deviations in colour, composition, taste and form in comparison with the Goods ultimately delivered.
4. Any offer made or undertaking given by a representative of KH/IMW/KD shall only be binding insofar as the latter confirms this in writing.

Article 3 – Agreement
1. Agreements are only binding on KH/IMW/KD by its written order confirmation, or, if confirmed orally, by submission of the pro forma invoice, which shall be considered as the written order confirmation.
2. If an order confirmation by KH/IMW/KD differs from the order of the Customer, then the Customer is deemed to have consented to the contents of the order confirmation by KH/IMW/KD, unless a written notice to the contrary is received by KH/IMW/KD within two (2) working days after receipt by the Customer of the confirmation.
3. Any agreement will be concluded under the resolutive that the Customer, according to the credit insurance company or to KH/IMW/KD, will be sufficient creditworthy.
4. If an Agreement is entered into with more than one Customer, then such Customers will be jointly and severally liable for their obligations thereunder.
5. Slight deviations with customary tolerances shall be permitted at the execution of the agreement.

Article 4 - Prices
1. All prices are without Value Added Tax (VAT) and any other taxes levied by any government, are in EURO, USD or other currency and are based on Ex Works, agreed place of delivery, the Netherlands, (EXW, Incoterms® 2010) unless otherwise agreed upon in writing between KH/IMW/KD and the Customer.
2. Any price cited by KH/IMW/KD shall be based on the existing monetary conditions, labour costs, procurement prices, duties, taxes and other levies, subsidies and the like prevailing at the time the Agreement concerned is concluded. In the event that one or more of these cost price components increase after conclusion of the Agreement but before the relevant Goods have been delivered, KH/IMW/KD shall be entitled to pass on any reasonable price increase to the Customer. Price fluctuations as a result of coercive government measures, such as an increase in VAT, will always be for the account of the Customer and will in no case entitle Customer to dissolve the Agreement.

Article 5 – Delivery – Delivery date
1. Unless explicitly agreed upon otherwise in writing, the delivery shall be made "Ex Works" agreed place of delivery, the Netherlands (EXW, Incoterms® 2010)(The Customer shall cooperate with the delivery and take receipt of the Goods. If the Customer fails to take receipt of the Goods for a period longer than ten (10) working days, then KH/IMW/KD is entitled to dissolve the Agreement without prejudice to its right to claim compensation for damages and costs. Prior to dissolution, if any, the Goods will be kept available at the expense and risk of the Customer.
2. Indicated delivery dates are approximations and shall under no circumstances be deemed to constitute fatal dates and are determined in the expectation that there are no impediments to the delivery of the Goods. KH/IMW/KD will not be in default without being notified thereof, which notice must be issued in writing and which notice must set forth reasonable time period, in no event less than twenty (20) working days, within which delivery is required to take place.
3. If the delivery date is exceeded, the Customer shall not be entitled to cancel or terminate the Agreement, unless the delivery date is exceeded with more than 6 weeks. The Customer will never be entitled to any compensation in case of late delivery.
4. The delivery time shall commence at such time as the relevant Agreement is concluded, KH/IMW/KD is in possession of all documents and details to be provided by the Customer and KH/IMW/KD has also accepted any security for payment which may have been agreed or have received any prepayment.
5. KH/IMW/KD shall be entitled at all times to make partial deliveries, unless explicitly agreed upon otherwise.  Each partial delivery shall be deemed to represent a separate Agreement. KH/IMW/KD shall be entitled to demand payment for each partial delivery before proceeding with any other.
6. KH/IMW/KD is entitled to suspend the performance of any obligation it may have towards the Customer until the latter has met all of its (payment) obligations towards KH/IMW/KD.

Article 6 – Transport and risk
1. If it is agreed that delivery will not take place “ex works”, agreed place of delivery, the Netherlands (EXW, Incoterms® 2010) then KH/IMW/KD will- in the absence of instructions of the Customer – determine the method of transport, shipment, packaging and suchlike, without KH/IMW/KD bearing any responsibility.

Article 7 – Warranty
1. The goods are only subject to warranties, such as storage life and quality warranties, given by KH/IMW/KD’s Suppliers

Article 8 – Claim notification
1. The Customer is obliged to check the Goods upon delivery for any defects. The Customer shall report to KH/IMW/KD any visible discrepancies in the Goods within Forty-eight (48) hours from the moment of delivery, otherwise, the Goods shall be considered to have arrived in proper condition. Defects which can only be observed at a later stage, shall be reported to KH/IMW/KD immediately after discovery but it any case within 10 working days after delivery.
2. KH/IMW/KD shall be afforded reasonable opportunity and facilities to investigate any claim made and the Customer will at first request of KH/IMW/KD return any Goods subject of a claim securely packed and at the Customer's risk and expense to KH/IMW/KD for examination.
3. In cases of a justified and timely claim KH/IMW/KD will, acting at its own discretion, either redeliver free of charge or credit the Customer.
4. The Customer will forfeit any right it may have under the Agreement if it has not met its obligations under this article, unless the Customer proves that it cannot be blamed therefor.
5. Complaints about the invoice must be notified to KH/IMW/KD within 2 working days after invoice date.

Article 9 – Payment
1. KH/IMW/KD shall at all times have the right to demand full or partial payment in advance. Payment must be made no later than five (5) working days prior to the delivery date, unless otherwise agreed upon in writing. The Customer will not be entitled to a discount, unless otherwise agreed upon in writing.
2. The Customer will not be entitled to suspend the performance of its obligations towards KH/IMW/KD nor is the Customer entitled to any set-off.
3. If the Customer fails to pay the amount due at the due date, then (i) the Customer will be in default without a notice of default being required and (ii) the Customer shall pay interest at an interest rate of 1.5% per month over any such amount as of the due date until the day it is fully paid, without prejudice to any other right KH/IMW/KD may have. All costs involved in collecting the amount due, both judicial and extrajudicial, shall be for the account of the Customer. The extrajudicial costs owed will never be less than 15% of the sum to be collected subject to a minimum of € 200,-. If KH/IMW/KD can prove that it has incurred higher costs, that were necessary in all fairness, then these, too, shall be eligible for compensation.
4. Furthermore, subject to any other rights KH/IMW/KD may have pursuant to the law or the Agreement, in the absence of timely payment it shall be entitled either to suspend further delivery or to terminate all or part of the relevant Agreement without the need for a notice of default or judicial intervention, such at its own discretion and subject to KH/IMW/KD's right to seek compensation for any harm it has suffered.
5. At any rate, the entire purchase price shall fall due with immediate effect in the event that the Customer fails to effect timely payment or if he goes bankrupt, is granted a suspension of payments, is placed in the care of a guardian, his possessions are attached or in the event that the Customer’s business is liquidated or dissolved.
6. Upon or after entering into the Agreement and before its implementation, KH/IMW/KD will be entitled to demand a guarantee from the Customer that both the payment obligations and any other obligations arising from this Agreement will be fulfilled. Refusal by the Customer to provide the required security gives KH/IMW/KD the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the Agreement wholly or partially, without prejudice to his right to compensation for any damages suffered by him.

Article 10 – Liability
1. Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on the part of KH/IMW/KD, any liability of KH/IMW/KD for any damage is excluded. Liability for any indirect or consequential damage including lost profits or loss ensuing from late delivery is expressly excluded.
2. Notwithstanding the other provisions of the Agreement, KH/IMW/KD is never liable for:
(a) a non-fulfilment or breach of its obligations under Agreement due to force majeure as defined in article 12 hereof
(b) acts or omissions of employees of KH/IMW/KD or third parties engaged by KH/IMW/KD, including persons recommended by KH/IMW/KD, with the exception of intentional acts or wilful misconduct of executives of KH/IMW/KD;
(c) the (un)suitability of the Goods for any particular purpose or damage caused by improper use of the Goods;
(d) Goods, which have been processed, adapted or altered in any way whatsoever;
(e) a breach of intellectual or industrial property rights of any third parties, unless the Customer proves that KH/IMW/KD was aware of such breach at the time of the delivery;
(f) minor deviations in taste, colour, composition, quantity, form and size which are inherent in the nature of the Goods and/or the method of loading;
3. In all cases where KH/IMW/KD is obliged to pay compensation for damages, the aggregate liability of KH/IMW/KD to the Customer under any theory or ground shall at all times be confined to the net invoice value of the Goods or Services to which the liability relates. In no event shall the liability of KH/IMW/KD exceed that of its supplier
4. In connection with (personal) damages sustained as a result of a defect of the Goods, the Customer must direct its claims exclusively to the manufacturer of such defective Goods.
5. Any claim of the Customer against KH/IMW/KD under or relating to the Agreement shall lapse by the mere expiry of one year after the (partial) delivery of the relevant Goods or rendering of Services.

Article 11 – Retention of title
1. The title of Goods will remain with KH/IMW/KD and will only be transferred to the Customer after the Customer has paid (i) the purchase price including any costs, damages and interest for Goods delivered under any Agreement and (ii) the consideration for Services rendered under such Agreement and (iii) any amount payable due to the Customer’s failure to comply with his obligations pursuant to this Agreement or any other.
2. The Customer has a duty of care with regard to the Goods covered by the retention of title and the Customer must insure them adequately and for its own account against loss, theft and other damages for which insurance is normal in the country in which the Customer has its offices
3. The Customer is obliged to keep and/or render the Goods subject to retention of title in KH/IMW/KD’s favour identifiable and to keep them separate from each other and from other products held by the Customer.
4. Until title to the Goods passes to the Customer, the Customer shall not be entitled to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. Nevertheless, the Customer shall be entitled to sell these Goods in the normal conduct of his business.
5. The Customer shall at all times help KH/IMW/KD exercise its right of ownership. As long as retention of title applies, the Customer shall have a duty to grant KH/IMW/KD access to his buildings and premises.
6. When first so requested by KH/IMW/KD, the Customer shall be obliged to pledge to KH/IMW/KD any accounts receivable he acquires in respect of Goods supplied by KH/IMW/KD which are subject to retention of title and have been sold to his buyers.

Article 12 – Force Majeure, events of default
1. In the event of force majeure, KH/IMW/KD shall be entitled to withdraw its quotations and, suspend deliveries without judicial intervention, and it shall not be required to provide any compensation. In addition to what the law considers to be force majeure, force majeure of KH/IMW/KD should be understood to mean acts of God, strikes, labour unrest, lockouts, riots, default or delay on the part of KH/IMW/KD suppliers of the Goods, acts of war, epidemics, boycotts, embargo´s, sanctions, fire and explosions, communications line failures, power failures, earthquakes, floodings and similar disasters, illness of employees of KH/IMW/KD or third parties called in by KH/IMW/KD in connection with the implementation of the Agreement, measures taken and/or prohibitions issued by the Dutch government and/or a foreign government by which KH/IMW/KD is bound, unforeseen and unpredictable traffic impediments, accident(s) with a means of transport employed in connection with the implementation of the Agreement as well as unforeseen technical defects in these means of transport, failure to perform by the suppliers of KH/IMW/KD, as well as all other unforeseen circumstances that prevent KH/IMW/KD from implementing the Agreement properly and on time and that are not for the account and risk of KH/IMW/KD. Failure to make (monetary) payments can never be attributed to force majeure.
2. Both parties are entitled to dissolve the Agreement by issuing a written notice to that end if KH/IMW/KD’s performance is restrained or barred by force majeure for a period in excess of three months, without the Customer being entitled to any compensation. Where KH/IMW/KD has already executed part of an Agreement, the Customer shall pay the purchase price for any Goods that have been delivered.

Article 13 – Intellectual property rights
1. The customer shall not remove, cover or alter any indications on the Goods as to trade or brand names, patents or other intellectual or industrial property rights.

Article 14 - Suspension and termination
1. In the event that the Customer fails to comply with his obligations pursuant to an Agreement into which he has entered, or fails to do so properly or on time, if there are grounds to fear that this will occur, or in the event that the Customer applies for a suspension of payments, files for bankruptcy or liquidates his business, KH/IMW/KD shall be entitled to suspend or terminate the Agreement concerned without the need to give notice of default or for judicial intervention, and it shall not have a duty to provide any form of compensation.
2. Any claim on the part of KH/IMW/KD pertaining to a part of the
Agreement which has already been executed, or harm suffered as a result of its suspension or termination, which shall be deemed to include loss of profit, shall fall due with immediate effect.

Article 15 - Cancellation
1. If the Customer wishes to cancel the Agreement without KH/IMW/KD having failed in the performance thereof and if KH/IMW/KD so agrees, KH/IMW/KD is entitled to charge the expenses, damages and lost profit.

Article 16 – Governing law; disputes
1. These general terms and conditions and any agreements entered into by KH/IMW/KD shall be solely governed by and construed in accordance with the law of the Netherlands. The applicability of the Vienna Convention on the International Sales of Moveable Goods (1980) or any other future international regulation on the purchase of movable goods is explicitly excluded.
2. All disputes arisen under the Agreement between the Customer and KH/IMW/KD shall be submitted to the competent court of Rotterdam unless KH/IMW/KD would elect to submit the dispute to the competent court in the place where the Customer has its registered offices, without prejudice to each party’s right to file for provisional measures with another competent court.
3. The provisions of article 16.2 leave intact the right of KH/IMW/KD to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Rotterdam, the Netherlands. The arbitral procedure shall be conducted in the English language.

Purchase

General Terms and Conditions of Purchase

Article 1 - General
1.1 These General Terms and Conditions of Purchase (“Terms and Conditions”) apply to and are part of all offers and agreements with Kiama Holding BV and/or International Marine Wholesalers and/or Kiama Distribution (referred to as “IMW”) related to the delivery of goods (“the Goods”) by the Supplier to IMW.
1.2 Deviations from these Terms and Conditions apply only if expressly accepted in writing by IMW and only pertain to the Agreement for which the deviations have been accepted.
1.3 The applicability of the Customer’s general terms and conditions and any other general conditions is hereby explicitly rejected.
1.4 In these Terms and Conditions, “Agreement” means any agreement for the delivery of Goods and/or the rendering of Services to IMW by the Supplier. Insofar as these Terms and Conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.
1.5 The term 'in writing' shall have the following meaning: by letter, by fax or by e-mail.

Article 2 – Agreements
2.1 Agreements as defined in 1.4 are only binding on IMW upon IMW’s written order confirmation, or if an order of IMW is confirmed orally, by submission by IMW of a written order confirmation.
2.2 Upon the issuance by the Supplier of a pro forma invoice or any other form of confirmation of IMW’s written order confirmation, the Supplier is hereby deemed to have accepted these Terms and Conditions.
2.3 The order confirmation of IMW shall be considered to present the contents of the Agreement completely and accurately, unless the Supplier rejects its contents forthwith in writing. In that case, IMW shall no longer be bound by the order confirmation.
2.4 The Supplier must procure the permissions, permits and/or licences needed for the execution of the Agreement at his own expense, and he must see to it that the conditions made therein are observed. The Supplier shall be solely liable for any failure to acquire the permissions, permits or licences, or to acquire them in time, or for the non-observance of the conditions made therein. The Supplier shall indemnify IMW for any and all damage and costs arising from such failure.
2.5 Unilateral cancellation from the side of the Supplier shall be null and void, unless IMW agrees to said cancellation in writing.

Article 3 - Confidentiality
The Supplier shall treat all business information in the broadest sense in connection with IMW confidential, which was brought or came to his knowledge through IMW and/or within the framework of any Agreement and shall not disclose the same to any third party.

Article 4 - Prohibition to make offers and such to IMW’s client
The Supplier shall refrain completely from stating prices and/or making any offers, either directly or by third-party intervention, to the client of IMW in connection with the Goods IMW is negotiating with the Supplier or has concluded an Agreement on.

Article 5 - Intellectual Property Rights
5.1 The Supplier guarantees that (the sale and use of) the delivered Goods do not infringe upon any trademark right, copyright or any other intellectual property right of third parties, or any other rights of third parties.
5.2 The Supplier guarantees that the delivered goods have been brought to market by the IP right holder itself, or with its permission if the Supplier did not buy the goods from the IP right holder itself. The Supplier guarantees that the delivered goods are fit for sale in the appropriate market subject of the Agreement, and that they may be freely traded in that particular market.
5.3 The Supplier shall indemnify IMW and its client(s) against all claims related to intellectual property rights on the delivered Goods, and will compensate IMW, or its client(s) for any loss, as well as the costs, arising from such claims. If requested by IMW, the Supplier will furnish the names and other details of its own suppliers to IMW if IMW in turn needs to furnish those details to its clients/prospective clients or to a third party who alleges infringement.

Article 6 - Prices
6.1 All prices shall be fixed and inclusive of all applicable taxes, import and export duties, excise duties and all further levies and taxes in connection with or in relation to the Goods or the delivery. The prices shall be based on the Terms and Conditions of delivery in Article 7 below.
6.2 Any change in prices shall be notified to IMW at least 60 days before, and must be agreed to by IMW in writing.
6.3 Subject to 6.2, there shall be no settlement in the event of increase of wages, prices of materials and the like.

Article 7 - Terms and Conditions of Delivery
7.1 Unless explicitly agreed upon otherwise, the delivery shall be made “Delivered Duty Paid" (DDP) at the place indicated by IMW. The interpretation of this Article 7 on Terms and Conditions of Delivery shall be determined by the latest edition of the Incoterms issued by the International Chamber of Commerce at the time of conclusion of the applicable Agreement.
7.2 The Supplier shall deliver the goods on the date mentioned in the Agreement, or not later than the last day of the term mentioned therein, and if failing an agreed date or term, within 30 days from the conclusion of the Agreement. Said date or term shall apply as a strict and final delivery date or term. A term of delivery mentioned in the Agreement shall apply as of the date of conclusion of the Agreement.
7.3 The Supplier shall be obliged to timely inform IMW of the exact time of delivery and about any threatening exceeding of the time of delivery.
7.4 The Supplier shall do his utmost to deliver the goods at the agreed date or an earlier date than the agreed date. At the request of IMW, the Supplier shall be obliged to deliver the goods at a later date than the agreed one in the event that IMW considers this desirable, without being entitled to any compensation of damage and costs because of this.
7.5 The Supplier shall only be entitled to make partial deliveries after prior written consent from IMW.

Article 8 – Transportation/Unloading
8.1 Transportation and unloading of goods shall be at the expense and risk of the Supplier in accordance with the Terms and Conditions of Delivery mentioned in Article 7.
8.2 The Supplier can on no account claim any compensation of damage and costs as a result of any possible delay arising at the unloading of delivered Goods.
8.3 The Supplier must present a delivery note immediately at the unloading of the goods, so as to have said note signed for by a person authorized on behalf of IMW to do so. The signing of the delivery note shall solely be a confirmation of the receipt of the delivered Goods and does not imply any approval of the quality or the quantity of the delivered Goods, and does not discharge the Supplier of any guarantee and/or liability. Nor can the signing of the delivery note result in a change of the Agreement in any way.
8.4 In any and all cases and notwithstanding the agreed Terms and Conditions of Delivery, the Supplier shall be obliged to provide the documentation which is needed to transport the Goods to the place of destination.

Article 9 - Packaging
9.1 The Supplier shall pack the goods with proper care. He shall be liable for damage and costs caused by insufficient packaging of and/or damage to and/or destruction of this packaging.
9.2 IMW shall not be obliged to pay the costs of packaging, unless explicitly agreed otherwise.
9.3 The Supplier shall take back any possible packaging of the goods at demand by IMW and shall collect said packaging at his expense at IMW's premises or nominated destination, at the same time refunding any costs charged for said packaging by the Supplier to IMW.

Article 10 - Quality
The Supplier shall guarantee that the delivered Goods are:
a. original and originating from the manufacturer and/or IP right holder stated on the packaging and labels, as well as in accordance with the quality intended by said manufacturer and/or IP right holder and without any faults;
b. regarding shelf life as well as quality - and taking into consideration usual terms - that the Goods are suitable for sale to re-sellers and (finally) for sale to and use by consumers;
c. provided to IMW in the original and latest design and colouring of packaging and labelling of the manufacturer and/or IP right holder;
d. in accordance with the demands made in the Agreement, the documents belonging to the Agreement and/or made available according to the Agreement, as well as with the norms and specifications set by IMW and samples approved by it; and
e. in accordance with national, European and other international rules and regulations, including the requirement of the presence of the original batch or code numbers (identical on the packaging and on the labels) enabling the identification of the goods.

Article 11 - Inspection
11.1 IMW or any third party designated by it shall at all times have the right to inspect or to test the goods, wherever these may be. The results of inspection or test or the omission thereof shall not discharge the Supplier of any guarantee and/or liability.
11.2 The Supplier shall provide all information and facilities needed for an inspection or test, including the necessary help regarding employees and materials.
11.3 The personnel costs of IMW or the designated third party concerned made in connection with an inspection or a test, shall be payable by IMW. Any other costs shall be at the Supplier's expense.
11.4 IMW shall inform the Supplier forthwith of any failure of the Goods to pass the inspection or tests. In this case, the Supplier shall be bound to repair or to replace the rejected Goods at his expense within a time-limit to be stipulated by IMW, and in such a way that said Goods do fulfil the approval requirements, without prejudice to any other rights of IMW. In case of rejection, Goods already delivered must be returned to the Supplier at IMW's request and at the expense of the Supplier. Rejection shall also entitle IMW to suspend payment of the agreed price or instalment, if any.
11.5 The Supplier shall give IMW the right to use or to put into use the delivered Goods even before inspection or test has taken place.

Article 12 - Property and Risk
12.1 The Supplier shall bear the risk for the Goods until the said Goods have been delivered and signed for by IMW in accordance with the previous articles.
12.2 In the event that IMW shall make any payment to the Supplier before the delivery of the Goods, the Goods said payment refers to, or is attributable to, shall be IMW's property as of the time of payment.
12.3 In the event that IMW will be or will become the owner of (a part of) the Goods already before the delivery, the Supplier shall then be obliged to identify these Goods on behalf of IMW and to take proper care of said identified Goods, as well as to insure them and keep them insured for the benefit of those concerned.

Article 13 - Payment and Settlement
13.1 Unless another term has been explicitly agreed upon, and subject to any (suspension) rights IMW is entitled to, payment shall take place within sixty days after the last of the following times:
a. the time of delivery of the goods;
b. the time the Goods are received and signed for by IMW;
c. the time of receipt by IMW of an invoice that fulfills the requirements stated in the following article.
13.2 Payment by IMW of the delivered Goods shall not discharge the Supplier of any guarantee and/or liability.
13.3 In the event that it has been agreed that IMW shall make any payments in advance, IMW shall have the right at all times, before making said payments, to require from the Supplier the provision of a security which is sufficient at IMW's discretion.
13.4 In the event that IMW has a well-founded fear that the Supplier will not fulfil his obligations, IMW shall be entitled to suspend the fulfilment of IMW’s own obligations upon written notice to the Supplier.
13.5 IMW shall be authorized to settle any amounts payable to the Supplier, or to companies associated with the Supplier, with any claims IMW (or any party associated with IMW) has on the Supplier or on any companies associated with the Supplier, irrespective of the fact whether the amounts concerned are due or not.

Article 14 - Invoicing
14.1 The invoices shall be sent to IMW by the Supplier in the original hard copy with original signature/company stamp by post or courier.
14.2 Invoices not fulfilling the requirements set out in the previous paragraphs of this article shall not be dealt with nor paid.
14.3 If the Supplier is new and is not yet in IMW’s system, the Supplier is obliged to fill up a Supplier Form and submit the same with a copy of the Supplier’s Certificate of Incorporation/ Business Registration Certificate or its equivalent.

Article 15 - Return of Goods
15.1 IMW shall be entitled to return the Goods bought from the Supplier, thereby crediting and requiring refund of the price originally charged by the Supplier to IMW for said Goods, if as a result of actions or failure to act by the Supplier, the situation in the market and/or the marketability of these acquired Goods is essentially different from what it was at the time of the formation of the Agreement.
15.2 Furthermore, IMW shall be entitled to return the Goods bought from the Supplier within twelve months after the delivery, in the event the Goods deviate regarding packaging or labelling from what is usual for the Goods concerned (for instance so-called action lots), thereby crediting and requiring refund of the price originally charged by the Supplier to IMW for said Goods.

Article 16 - Guarantee
16.1 The Supplier shall repair forthwith any and all defects, shown by the Goods after the delivery, and in the event that in IMW's opinion repairs are not possible, the Supplier shall replace said Goods at no extra cost to IMW, without prejudice to the Supplier's liability and any further rights of IMW.
16.2 Any and all costs of repairing the defect or replacing the Goods shall be payable by the Supplier.
16.3 In the event that the Supplier does not repair the defect or insufficiently repairs the defect, or if the reparation of the defect cannot be postponed, IMW shall have the right to carry out the necessary actions or have these carried out at the Supplier's expense. In the event that IMW exercises this right, IMW shall inform the Supplier in writing.
16.4 Any obligations under the guarantee shall apply unimpaired after the reparation or replacement of the goods.
16.5 The Supplier shall hold harmless and indemnify IMW against any and all claims by third parties with regard to defects or anything affecting the quality of the Goods.
16.6 A report of an independent expert concerning the relevant defects shall be conclusive evidence between parties in the event of a claim by IMW based on the guarantee referred to hereby. Said report need not include any information on the identity of the clients of IMW, nor on the place where the Goods are. Moreover, IMW shall not be bound to inform the Supplier of such data unless mandated by law.

Article 17 - Liability
17.1 The Supplier shall be liable for all and any damage and costs, inclusive of business and other indirect damage (whereby loss of profit), arising from defects of the delivered Goods or other shortcomings, whether attributable or not to the Supplier and/or caused by natural persons or legal entities working for the Supplier or by any employed, directly or indirectly, by (one of) said natural persons or legal entities.
17.2 The Supplier shall hold harmless and indemnify the IMW against any and all claims by third parties he is liable for arising from the Goods.
17.3 The Supplier shall insure his liability as described in this article for a sufficient amount and shall allow IMW inspection of a copy of said insurance upon request.

Article 18 - Complete or Partial Dissolution
18.1 In the cases provided for by law, as well as in the event that the Supplier does not, not in time or not sufficiently fulfil one or more obligations arising for him from the Agreement(s), or in the event that there is serious doubt as to the Supplier being able to fulfil his contractual obligation towards IMW, as well as in the event of bankruptcy, suspension of payments, complete or partial stoppage of work, liquidation, transfer or encumbrance of the Supplier's business, including the transfer or pledging of an important part of his debts receivable and furthermore in the event that any goods of the Supplier are attached before judgement or in execution, IMW shall have the right to dissolve the Agreement(s) partially or wholly without notice of default or judicial intervention, by means of a written notice sent to the Supplier, and all this without IMW being liable to any compensation and without prejudice to IMW’s further rights.
18.2 In the event that Goods have already been delivered in connection with the execution of an Agreement, IMW shall have the right to keep these Goods in case of dissolution, subject to the payment of the part of the price referring to said Goods, or to return these Goods to the Supplier at the Supplier’s risk and expense and to reclaim the payments already made for these Goods, all this at IMW's discretion and without prejudice to IMW’s further rights.
18.3 The claims, which IMW may have or get as a result of the dissolution of an Agreement and/or any claims for compensation of damage and costs inclusive, shall be immediately and fully payable.

Article 19 – Subcontracting/Transfer
19.1 Without explicit prior written consent of IMW, the Supplier shall not subcontract its obligations under any Agreement or any part thereof to third parties, nor transfer his obligations arising from the Agreement or a part thereof to third parties, nor use any other employees than his own staff for the execution of the agreement. IMW shall have the right to attach conditions to any consent to be given by IMW. Consent given by IMW shall not release the Supplier from any obligation arising from the Agreement.
19.2 The Supplier shall compensate any and all damage and costs caused by non-observance of the provisions of the previous paragraph of this article to IMW and shall hold harmless and indemnify IMW against any claims by third parties in this respect.

Article 20 - General
In the event that one or more stipulations of an Agreement or these Terms and Conditions are null and void or become legally invalid, the rest shall remain in force. Parties shall consult on the stipulations which are null and void or have become legally invalid, in order to make an alternative arrangement.

Article 21 - Disputes and Governing Law
21.1 These Terms and Conditions and any Agreements entered into by IMW shall be solely governed by and construed in accordance with the law of the Netherlands.
21.2 No delay in exercising or non-exercise by IMW of any of its rights under or in connection with the Agreement(s) or these Terms and Conditions shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by IMW. The single or partial exercise of any right, power or remedy provided by law or under the Agreement(s) or these Terms and Conditions shall not preclude any other or further exercise of it or the exercise of any other right, power or remedy.
21.3 All disputes arisen under the Agreement between IMW and the Supplier shall be submitted to the exclusive jurisdiction of the courts of Rotterdam, Netherlands, unless IMW would elect to submit the dispute to the competent court in the place where the Supplier has its registered offices, without prejudice to each party’s right to file for provisional measures with another competent court.
21.4 The provisions of article 21.3 leave intact the right of the parties to obtain a settlement by means of arbitration at the International Chamber of Commerce (ICC) under the Rules of Conciliation and Arbitration of the ICC by one or more arbitrator(s). The place of arbitration will be in Rotterdam, Netherlands. The arbitral procedure shall be conducted in the English. (Last updated on 10 January 2017.)