2 QUOTATIONS AND OFFERS
2.1 All quotations and offers of Alliance Automotive shall be without engagement and shall not bind Alliance Automotive.
2.2 If an offer or quotation includes an expiry period, Alliance Automotive shall, upon expiry of such period, no longer be bound to maintain its offer.
2.3 An agreement as referred to in Clause 3 of these Terms and Conditions of Sale need not always be preceded by an offer or quotation.
2.4 Any quotation or offer shall be based on a performance of the agreement under normal circumstances and working hours.
3 AGREEMENTS
3.1 Agreements are concluded only by written order confirmation, in any form, or after a start of implementation by Alliance Automotive to the order to supply a product or service. Under circumstances, for example due to the nature, scope or urgency of the order, no order confirmation shall be sent by Alliance Automotive, the invoice shall be considered as such.
3.2 An acceptance differing from the offer made by Alliance Automotive shall constitute a new offer and may at any time be rejected by Alliance Automotive. In such case, an agreement shall only be formed if and to the extent that Alliance Automotive expressly agrees in writing to the changes and/or additions made by the other party to the offer originally made by Alliance Automotive.
3.3 Alliance Automotive reserves at all times the right to withdraw an offer already accepted by the other party, whether or not recorded in a written agreement, within a reasonable period after Alliance Automotive has been notified of such acceptance. Revocation of an offer already accepted by the other party shall never lead to any liability for damages on the part of Alliance Automotive. The above described right to withdraw an already accepted offer shall lapse as soon as Alliance Automotive has sent a written order confirmation to that effect.
3.4 Verbal undertakings, agreements or other legal acts shall bind Alliance Automotive only if performed by expressly written proxies or otherwise authorised representatives of Alliance Automotive.
4 CANCELLATIONS
4.1 Cancellation of the agreement by the other party shall be possible only with the prior express written consent of Alliance Automotive. If Alliance Automotive agrees to cancel the agreement, it shall always be entitled to charge the other party 10% of the principal sum as a result of loss of profits. In addition, the other party shall be obliged to pay to Alliance Automotive all costs already incurred by Alliance Automotive in connection with the agreement and damages suffered and to be suffered by Alliance Automotive.
4.2 Agreements pertaining to products to be procured specifically by Alliance Automotive for the benefit of the other party, may not be cancelled unless such products have not yet been procured by Alliance Automotive and Alliance Automotive can still cancel the procurement thereof itself. Also in such cases the provisions of the preceding paragraph shall apply.
4.3 In case of cancellation the other party shall not be entitled to claim anything already performed by Alliance Automotive.
4.4 Cancellation by the other party shall always be effected by registered letter addressed to Alliance Automotive.
5 DELIVERY AND COMPLAINTS
5.1 Unless otherwise agreed in writing, delivery shall be EXW (ex factory). With regard to the delivery time, a product shall be deemed delivered when it is available for transfer of possession to the other party, or at least can be brought under its control.
5.2 Delivery dates shall only be approximate and shall not be binding on Alliance Automotive, unless the parties have expressly agreed otherwise in writing. Exceeding the delivery date, for whatever reason, shall not entitle the other party to rescind the agreement in whole or in part.
5.3 Exceeding the delivery period, or non-delivery, shall only entitle the other party to compensation if parties have expressly agreed otherwise in writing. If Alliance Automotive is liable for exceeding a delivery time, this liability shall always be limited to those damages for which Alliance Automotive is insured, or at least according to common opinion should have been insured. Consequential damages are always excluded.
5.4 Products not taken by the other party after expiry of the delivery deadline shall remain at Alliance Automotive's disposal and be stored by Alliance Automotive at the expense and risk of the other party.
5.5 The other party shall be obliged to check delivered products and/or work performed on delivery for any shortcomings or damage and to notify Alliance Automotive in writing as soon as possible, but in case of visible defects no later than three days after the delivery of the products took place or the performance of the work was carried out, accurately specifying the facts to which the complaint relates. Claims in case of non-visible defects shall be made immediately upon discovery, but in any event within the applicable warranty period, also by means of an itemised written communication. If the said periods are exceeded, any claim against Alliance Automotive in respect of such defects shall lapse. Legal claims relating to defects or damages shall be filed within one year after timely complaints under penalty of expiry.
5.6 Minor and/or industry-specific deviations and differences in quality, colour, size, etc. shall never constitute grounds for complaints.
5.7 If the other party has not filed a complaint within the term referred to in paragraph 5, it shall be deemed to have approved the delivered goods and shall lose all rights and powers available to it under the law in this respect.
6 LEGAL REQUIREMENTS
6.1 The products delivered by Alliance Automotive shall comply with the legal requirements applicable in the Netherlands with regard to operation, transport and safety on the day of the formation of the agreement.
6.2 If between the date of conclusion of the agreement and delivery amended legal requirements come into force, which are known in advance to take effect before delivery, the relevant products shall be adapted to these new requirements to the extent possible. All related costs shall be borne by the other party.
7 WARRANTY
7.1 The guarantee mentioned in this article does not affect the legal rights (including the right pursuant to Book 7 of the Dutch Civil Code that the good meets the agreement upon delivery) that the other party, not acting in the exercise of a profession or business, has on that account.
7.2 Alliance Automotive only guarantees the quality of the products in the condition they are in at the time of delivery and only guarantees that the products have the properties necessary for their normal use.
7.3 Alliance Automotive grants no warranty on its products other than that provided by its suppliers. Such warranty shall only apply during the warranty periods provided by its suppliers.
7.4 The warranty provided by Alliance Automotive through its suppliers implies that Alliance Automotive shall replace the products after receiving the defective, returned products from the other party. Warranty does not oblige Alliance Automotive to credit any invoice amounts.
7.5 Alliance Automotive shall grant no warranty on delivered second-hand products, unless the parties expressly agree otherwise in writing.
7.6 Warranty claims shall lapse:
a. if the other party has not notified Alliance Automotive in writing of the defects in an itemised manner within five days after the day on which the defects were discovered, or could reasonably have been discovered;
b. if the other party cannot demonstrate that the instructions and directions for use, maintenance and operation provided by Alliance Automotive, or by the relevant supplier, were properly followed;
c. if third parties have performed work on the delivered items without the express written consent of Alliance Automotive;
d. if the other party does not or not fully comply with any obligation arising from the agreement or any related agreement.
e. from the moment the products are incorporated into other products.
7.7 If Alliance Automotive replaces products in fulfilment of its warranty obligations, the replaced products shall become the property of Alliance Automotive.
7.8 Alliance Automotive does not warrant the capacity, properties or legal admissibility of products supplied by Alliance Automotive, if they are used in a manner other than the intended manner or if changes are made to the products by third parties without Alliance Automotive's consent.
8 RETENTION OF TITLE AND LIEN
8.1 All products delivered by or on behalf of Alliance Automotive shall remain the property of Alliance Automotive and at the risk and expense of the other party until such time as all claims Alliance Automotive has or obtains against the other party under any agreement are satisfied in full. Subject to Alliance Automotive's express written consent, the other party shall not be entitled to encumber these products.
8.2 Should the other party fail to perform any obligation under the agreement, these Terms and Conditions of Sale or for any other reason, Alliance Automotive shall be entitled, without further notice, to repossess the products. In such case Alliance Automotive shall be entitled to unhindered access to the products delivered by it. The other party shall provide Alliance Automotive with all cooperation in order to enable Alliance Automotive to exercise its reservation of title.
8.3 The other party shall promptly notify Alliance Automotive in writing of the fact that third parties are asserting rights to products subject to Alliance Automotive's retention of title.
8.4 As security for proper payment of all claims, under the agreement for the delivery of parts, accessories and other products and services, Alliance Automotive shall, in addition, by entering into an agreement with the other party, acquire a silent lien as security for all products delivered by Alliance Automotive and still in the possession of the other party.
8.5 The products delivered by Alliance Automotive shall be for the account and risk of the other party from the moment of delivery, even if ownership has not yet been transferred. The other party shall be obliged to sufficiently insure the products against fire, theft, third party claims and excess until the time of full payment. The other party shall be deemed to have assigned its rights under this insurance contract to Alliance Automotive until the time of full payment. At Alliance Automotive's request, the other party shall declare the insurance company concerned.
8.6 Alliance Automotive shall not be bound to any indemnification of the other party, for its liability as holder of the products.
8.7 The other party shall indemnify Alliance Automotive against claims made or to be made by third parties against Alliance Automotive which may be related to the retention of title made.
8.8 If the other party fails to pay all or part of the costs related to the performance of the contract, Alliance Automotive shall at all times be entitled to exercise the right of retention on all those items to which the performance of the contract relates and which, within the framework of the contract, it actually has in its possession.
9 RETURNS
9.1 Return of products, other than due to faulty delivery, shall only be possible if expressly agreed in writing by Alliance Automotive.
9.2 Products that are not in good condition, or whose packaging is not (anymore) in good condition, can not be returned to Alliance Automotive, at the sole discretion of Alliance Automotive.
9.3 Returns must be accompanied by a packing slip, on which the date and number of the delivery note or invoice of Alliance Automotive is displayed. Products which cannot be proven to have been delivered by Alliance Automotive shall not be eligible for credit. The same applies to products whose quantity does not correspond to the standard packaging unit.
9.4 Credit notes relating to products returned by the other party shall be calculated in accordance with the prices and discounts applicable on the date of crediting. However, the amount of the credit note shall never exceed the amount of the related debit invoice.
10 PRICES
10.1 Prices quoted by Alliance Automotive are net prices and are exclusive of sales tax and other government charges applicable to the sale and/or delivery and/or performance of the agreement. The prices quoted by Alliance Automotive shall be based on prices as in force on the day of the offer.
10.2 Unless otherwise agreed in writing, prices shall be based on delivery EXW (ex factory).
10.3 If after the date of formation of the agreement one or more of the applicable cost price factors, such as those of labour costs, materials, taxes, premiums, excise duties, exchange rates of foreign currencies, undergoes an increase, even if this occurs due to foreseeable circumstances, Alliance Automotive shall be entitled to increase the agreed price accordingly.
10.4 Following a price change, Alliance Automotive shall be entitled to proportionally adjust any agreed instalment payment.
11 PAYMENT CONDITIONS
11.1 Payment by the other party, subject to deduction of any advance or down payment paid, shall be made no later than upon delivery of the products or after the provision of the services, unless the parties expressly agree in writing that payment shall be made within 14 (fourteen) days of the invoice date, into a bank account designated by Alliance Automotive and without any set-off or deduction other than as aforesaid.
11.2 Alliance Automotive shall at all times be entitled to request the other party for full or partial prepayment. In case the other party exceeds any credit limit as expressly agreed by the Parties in writing, delivery of a product or service may only take place upon prepayment.
11.3 Unless the Parties have expressly agreed otherwise in writing, payment shall be made in euros.
11.4 The other party shall be in default, without the need for any further notice of default in any form whatsoever, if it fails to meet its payment obligation or any other obligation arising from the agreement with Alliance Automotive, these general terms and conditions of sale or the law, or fails to do so on time.
11.5 The claim for partial or full payment of the agreed price is immediately due and payable if the other party becomes bankrupt, applies for a moratorium or if its receivership is sought, if any attachment is levied on products and/or claims of the other party and if it dies or goes into liquidation.
11.6 If payment of an invoice is not timely made, Alliance Automotive shall be entitled, upon expiry of the relevant deadline, to charge the other party, if applicable retroactively to the invoice date, default interest of 1.5% per month, whereby part of a month shall be calculated as a full month.
11.7 In addition to the principal sum and default interest, the other party shall owe all costs caused by its non-payment or late payment, both judicial and extrajudicial, including attorney's and bailiff's fees. These extrajudicial costs shall be fixed at 15% of the principal sum, with a minimum of € 150, plus VAT due.
11.8 If Alliance Automotive files for the bankruptcy of the other party, the latter shall, in addition to the principal sum, interest and extrajudicial costs, also owe the costs of the bankruptcy petition.
12 TERMINATION
12.1 If the other party does not, not timely or not properly fulfil its obligations under any agreement entered into with Alliance Automotive, as well as in case of bankruptcy or suspension of payments, receivership of the other party or in case of cessation or liquidation of its business, it shall be deemed to be in default by operation of law and Alliance Automotive shall be entitled, without judicial intervention and without further notice, terminate all or part of these agreements, without being liable to pay any damages to the other party or third parties and without prejudice to Alliance Automotive's other rights, including Alliance Automotive's right to compensation for lost profits, costs and other damages suffered and to be suffered.
12.2 If the provisions of the first paragraph occur and the other party enjoys an advantage which it would not have had in the event of proper performance, Alliance Automotive shall in any case be entitled to compensation in an amount not less than the amount of this advantage, such without prejudice to Alliance Automotive's further rights under the agreement, these General Terms and Conditions of Sale and the law.
13 POWER OF ATTORNEY
13.1 Alliance Automotive shall be entitled, forced by force majeure, to terminate or suspend the agreement without judicial intervention, without being held to any form of compensation.
13.2 Force majeure shall include all causes reasonably beyond Alliance Automotive's control (including war, threat of war, natural disasters, epidemics or pandemics, weather conditions, strikes in its own company or a supplying company, non-timely or incorrect deliveries from supplying companies, etc.) and which prevent the full or partial execution of the agreement.
13.3 If the force majeure situation is only temporary in nature, Alliance Automotive shall also be entitled to suspend the execution of the delivery order until such time as the force majeure situation has ended.
13.4 If the execution of the work becomes impossible due to a circumstance not attributable to Alliance Automotive, Alliance Automotive shall be entitled to payment by the other party of the relevant part of the agreed price, plus any costs incurred, with respect to what has already been performed.
13.5 If delivery becomes impossible due to the fault of the other party or governmental provisions, Alliance Automotive shall be entitled to payment by the other party of the agreed price, plus any costs incurred, and less any costs saved due to non-completion.
14 CHANGED CIRCUMSTANCES
14.1 If it appears that an assignment given to Alliance Automotive or any part thereof, due to a circumstance not attributable to Alliance Automotive, can only be performed modified, Alliance Automotive shall notify the other party thereof as soon as possible. Alliance Automotive shall indicate the financial consequences, whereby the agreed change shall be settled as additional work or less work.
15 LIABILITY AND INDEMNITY
15.1 Alliance Automotive shall only be liable for damages caused to the other party or third parties, which are the sole and direct result of intentional acts and/or gross negligence of Alliance Automotive, subject to the proviso that only such damages shall qualify for compensation against which Alliance Automotive is insured, or should have been insured based on custom in its industry.
15.2 Alliance Automotive shall never be liable for damage caused by intent and / or gross negligence of auxiliary persons.
15.3 In case Alliance Automotive, notwithstanding the foregoing, may be liable for damages and such damage is not due to intent or gross negligence of Alliance Automotive, then Alliance Automotive's liability shall always be limited to direct damage to property or persons and shall not extend to any trading loss or other consequential damages, including loss of income. Alliance Automotive's liability shall further be limited to such damages and maximum amounts Alliance Automotive is or reasonably should have been insured against.
15.4 The provisions of the preceding paragraph shall apply only to the extent that liability under the agreement, the Terms and Conditions of Sale or the law is not already further limited.
15.5 The other party shall indemnify Alliance Automotive against all claims in respect of any damages caused directly or indirectly to third parties by or in connection with the product or its possession or use, howsoever and in whatever form, in so far as these exceed Alliance Automotive's liability to the other party under the provisions of these Terms and Conditions of Sale.
15.6 The other party shall indemnify Alliance Automotive against any claims by it or third parties caused by a defect in the product which is partly caused by conduct of the other party or its subordinates.
15.7 If in any legal proceedings any provision set forth in this Article is held to be unreasonably onerous, Alliance Automotive shall be entitled to compensation only for damages for which Alliance Automotive is insured and up to the maximum for which Alliance Automotive is insured, or for which Alliance Automotive should reasonably have insured itself, also taking into account relevant industry practices.
16 INTELLECTUAL PROPERTY RIGHTS
16.1 Alliance Automotive shall retain all intellectual property rights (including copyright, patent rights, trademark rights, design rights, etc.) in all its designs, drawings, writings, software, data or other information carriers, quotations, images, sketches, models, etc., unless the parties agree otherwise in writing.
16.2 Without the express written consent of Alliance Automotive, the rights referred to in the preceding paragraph may not be copied, shown and/or made available to third parties or used in any manner other than the manner of use as agreed with Alliance Automotive and/or for any purpose other than that for which they were given in use.
16.3 The other party shall be obliged to keep confidential all confidential information provided by Alliance Automotive to him or any of his subordinates. Confidential information shall in any case mean all that to which the provisions of the first paragraph relate, as well as business data of Alliance Automotive. The other party undertakes to impose on its staff and/or third parties involved in the execution of the agreement a written confidentiality obligation of the same scope as this provision.
16.4 Alliance Automotive reserves the right to use any knowledge gained in the execution of the work, including the services provided by Alliance Automotive, for other purposes, provided that no confidential information is disclosed to third parties.
17 DISPUTES AND APPLICABLE LAW
17.1 All disputes, whatever and however named - including those considered as such by only one of the parties - as a result of the agreement or agreements resulting therefrom, between the other party and Alliance Automotive may arise, are subject to the judgment of the District Court Gelderland.
17.2 All agreements, to which these Terms and Conditions of Sale apply in whole or in part, shall be governed exclusively by Dutch law.
17.3 The provisions of the Vienna Sales Convention shall not apply, nor shall any future international regulation on the sale of movable products the effect of which can be excluded by the parties.
Alliance Automotive Group Benelux B.V.
April 2021