GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
Omnivision B.V.
De Dintel 29-31
5684 PS Best, Netherlands
Hereinafter: Omnivision
Article 1. Definitions
The following definitions shall apply in these terms and conditions:
Omnivision: the party applying the terms and conditions;
Hirer/buyer: a customer acting in the conduct of a business or profession.
Article 2. Application of these terms and conditions
2.1. These terms and conditions shall apply to any offer and agreement between Omnivision and a hirer/buyer, to which Omnivision has declared these terms and conditions applicable, unless other terms and conditions are expressly agreed upon between both parties in writing.
2.2. Any order with or delivery from us shall be emphatically understood as carried out in consideration and with full acceptance of the present terms and conditions of delivery and payment.
2.3. These terms and conditions shall also apply to all agreements with Omnivision in which third parties are involved in their execution.
Article 3. Quotations
3.1. Quotations from Omnivision are non-binding and expire no later than 30 calendar days after the date of the quotation.
3.2. Notwithstanding the provisions of article 6:225, paragraph 2 of the Dutch Civil Code, Omnivision shall not be bound by any deviations from its quotation contained in the acceptance by the potential hirer/buyer.
3.3. All delivery times and other deadlines for services specified in Omnivision’s quotations are approximate and for information purposes only. In the event that a delivery time is exceeded, the hirer/buyer shall not be entitled to damages or cancellation.
3.4. Unless otherwise stated, prices specified by Omnivision are based on performance during regular working hours and exclude transport, delivery and installation costs, VAT and other government levies. Prices quoted in our offers are based on the circumstances at the time of drafting the offer. We are entitled to modify our prices in line with increases in factory prices and/or other circumstances, from the point at which the offer was submitted until the agreement enters into force.
3.5. In the case of a combined quotation, we shall not be under any obligation to deliver part of the goods included in the offer at a corresponding percentage of the price specified, nor shall our offer apply automatically to subsequent orders.
3.6. Omnivision shall only be bound by its quotation if the potential hirer/buyer confirms acceptance in writing within 30 calendar days. All prices stated in an offer exclude VAT, unless otherwise specified.
3.7. Information provided in brochures, diagrams, drawings, etc. is not binding unless otherwise expressly stated in writing.
3.8. Any designs, models, replicas, drawings, etc. drafted and/or produced by us shall remain our property at all times. The hirer/buyer hereby acknowledges that such designs, models, replicas, drawings, etc. shall not be reproduced, shared with third parties, disclosed and/or used without our express permission in writing.
If any designs, models, replicas, drawings, etc. drafted and/or produced by us are nevertheless reproduced, shared with third parties, disclosed and/or used without our express permission in writing, the offender shall be liable to pay a fine immediately, which is not subject to mitigation, equal to an amount of five times the value of the offer calculated or to be calculated by us to which the designs, models, replicas, drawings, etc. relate or for which they are used, without prejudice to our right to claim full compensation for the resulting damage suffered by us.
Article 4. Hire
4.1. Hire period: the goods may be hired for a period of at least one day or multiples thereof, unless otherwise expressly agreed in writing. The hire period shall commence on the first day of hire at the agreed time of delivery from the warehouse and end on the last day of hire agreed upon. Hired equipment must be returned to the supplier by 10 am on the first working day after the last day of hire, unless otherwise agreed in writing by the supplier.
4.2. Delivery by the hirer: the hirer must collect the goods from the supplier's branch address and return them to the same location (unless otherwise expressly agreed in writing) no later than on the date stated in the hire agreement. If the hirer does not return the goods by that date, he/she will enter into default – without any further reminder or notice required – and without prejudice to his/her other obligations shall be liable to pay damages amounting to the rental fee otherwise due for the period from the end of the hire period until the date on which the goods are returned, plus an additional fee of 50%. The hirer may not derive any right to hire for a period from this stipulation.
4.3. Insurance: the hirer shall be liable for any and all damage to the hired goods occurring during the hire period, regardless of the cause. However, if so instructed by the hirer and confirmed by the supplier in writing, the supplier shall insure the supplied goods for the benefit of the hirer against loss and damage, but not against damage caused by negligence, misuse, intent or gross negligence on the part of the hirer, in which case the latter shall be wholly liable. The supplier shall charge for the insurance costs. If the hired goods or parts thereof are damaged due to negligence, misuse, intent or gross negligence on the part of the hirer, the repair costs shall be calculated at the repair rates that normally apply. If the hired goods or parts thereof are lost entirely or damaged beyond repair for the same reason, the hirer shall be liable towards the supplier for an amount equal to the purchase cost of the goods to be replaced and the cost of replacement. The supplier shall in any case charge the hirer for payment of the excess incurred by the supplier, plus any additional costs arising.
4.4. Agreements shall only be binding once confirmed by us in writing: agreements and supplements thereto shall only be binding on us once and in so far as such agreements and supplements have been accepted and agreed by us in writing. 4.5. Cancellation of the hiring of goods must be given at least 24 hours before the hire period begins. Otherwise, 50% of the hire fee shall be charged. An agreement concluded with us may only be cancelled or terminated with our express written consent and only if the hirer/buyer agrees to reimburse the costs already incurred. Our previous price list shall no longer be valid.
Article 5. Delivery/completion
5.1. Unless otherwise agreed, delivery shall be ex warehouse or otherwise at our discretion.
5.2. The hirer/buyer shall be obliged to accept the hired/purchased goods at the time they are delivered or are made available to him/her under the agreement.
5.3. If the buyer refuses delivery or fails to provide any information or instructions required for delivery, the goods will be stored at the buyer's own risk. In such cases, the buyer shall be liable for additional fees, including storage costs (10%).
5.4. Omnivision may supply the hired/purchased goods in partial deliveries. This does not apply if a partial delivery has no value of its own. If the goods are supplied in partial deliveries, Omnivision shall be authorised to invoice for each part separately.
5.5. If the order includes installation and/or assembly of the goods purchased from us and/or designed/manufactured by us having been commissioned by the hirer/buyer, the following shall apply:
- Projects that we perform shall in all cases be considered as having been delivered at the time that we agreed with the hirer/buyer at the time of delivery and shall be deemed to have been accepted by the hirer/buyer.
- Non-acceptance of a delivery as referred to above shall not exempt the hirer/buyer from his/her payment obligation.
Article 6. Delivery time
6.1. Delivery times provided by Omnivision are always approximate and are never fixed deadlines.
6.2. If a delivery does not arrive on time, the buyer shall issue the Omnivision with a written notice of default and give Omnivision a reasonable period to meet its obligations.
6.3. If the delivery time is exceeded, the hirer/buyer shall not have the right to rescind the agreement or consider it dissolved unless the delay exceeds:
a) for exhibition projects, the time at which the event opens;
b) for other projects: 14 calendar days.
Nor shall our customer have the right to suspend his/her payment obligation. Exceeding the delivery time may never – even after issuing a notice of default – give rise to a claim for damages unless stipulated in a written agreement.
6.4. The delivery time stated by Omnivision only commences once it has all the information required.
Article 7. Technical requirements, etc.
7.1. If goods to be delivered within the Netherlands are destined for usage outside of that country, Omnivision may not be held responsible for ensuring that the goods to be delivered comply with the technical requirements, standards and/or regulations laid down by legislation or provisions in the country of usage.
This does not apply if usage abroad is mentioned and all the information and specifications required are submitted by the time the agreement is concluded.
7.2. All other technical requirements laid down by the hirer/buyer for the goods to be delivered that deviate from the typically applicable requirements must be expressly provided by the hirer/buyer in writing by the time the hire or purchase agreement is concluded.
Article 8. Samples, models and examples
Any model, sample or example shown or provided by Omnivision is shown or provided by way of indication only. The properties of the goods to be delivered may differ from those of the sample, model or example unless it was expressly stated that delivery would be in accordance with the sample, model or example shown or provided.
Article 9. Termination of the agreement
9.1. An agreement between Omnivision and a hirer/buyer may be terminated immediately in the following cases:
- If after the agreement is concluded Omnivision becomes aware of circumstances that give Omnivision good reason to suspect that the hirer/buyer will not fulfil his/her payment obligations;
- If at the time that the agreement is concluded Omnivision has requested security for fulfilment to be provided by the hirer/buyer and said security is not provided or is insufficient despite a demand.
In such cases, Omnivision is entitled to suspend further execution of the agreement or to terminate the agreement, without prejudice to Omnivision's right to claim damages.
9.2. Omnivision shall be entitled to terminate the agreement if circumstances arise with regard to persons and/or materials that Omnivision employs in the performance of the agreement which make performance of the agreement impossible or problematic and/or disproportionately expensive such that compliance with the agreement cannot be reasonably expected.
9.3. An agreement concluded with us may only be cancelled or terminated with our express written consent and only if the hirer/buyer agrees to reimburse the costs already incurred, including for loss of profit amounting to at least 30% of the invoice amount.
Article 10. Warranty
10.1. If we provide an express written warranty to the buyer, it shall only apply for the period specified in the offer. If we provide an express written warranty without specifying a validity period, the warranty shall be valid for 6 months.
10.2. If the buyer wishes to claim under the warranty, he/she must explicitly inform us in writing within 3 calendar days of becoming aware of the defect. The buyer must quote the invoice/order number and the serial number of the product if provided. The buyer must give us the opportunity to inspect the product.
10.3. The buyer must ensure the product is carefully packaged and return it to us at his/her own expense if requested. If we offer to inspect the product at the buyer's location, the buyer shall ensure that the location and the product are accessible. In such cases, if the buyer had purchased the product with installation and/or assembly by us, any disassembly and assembly work shall be borne by us. If the buyer had purchased the product without assembly/installation by us, any disassembly and assembly work shall be borne by the buyer. If the inspection reveals that there are no defects present, we shall be entitled to charge the buyer for reasonable inspection and re-delivery costs.
10.4. In the event of a defect within the warranty period, we shall provide a repair or replacement at our discretion. The return transport costs of the repaired or replacement product to the buyer shall be borne by us.
10.5. The warranty does not apply to: minor cosmetic defects that do not affect the product's functionality; materials that are exhausted through normal wear and tear such as batteries, cables and wheels; damage caused by negligence or misuse; or damage caused during transport that is not provided by us.
On no account shall the warranty extend to anything exceeding the free delivery of the purchased product to replace the already delivered product, and at any rate to the free delivery of at least equivalent parts; we shall never be liable for any other damage suffered by the hirer/buyer.
10.6. If the warranty concerns a product manufactured by a third party, the warranty shall be limited to that provided by the manufacturer of that product.
Article 11. Retention of title
11.1. All goods delivered by Omnivision shall remain the property of Omnivision until the buyer has fulfilled all obligations under all purchase agreements concluded with Omnivision.
11.2. Goods delivered by Omnivision that fall under the retention of title pursuant to paragraph 1 may only be resold as part of normal business activities and must never be used as a means of payment.
11.3. The buyer shall not be entitled to pledge or in any other way encumber the goods falling under the retention of title.
11.4. In all cases in which Omnivision wishes to exercise its property rights, the hirer/buyer herewith gives Omnivision and its designated third party unconditional and irrevocable consent to access any place where Omnivision's property is located and to remove such goods from said property.
11.5. If a third party seizes the goods delivered under retention of title or wishes to establish or claim rights thereto, the buyer shall be obliged to expressly inform Omnivision in writing as quickly as can be reasonably expected.
11.6. The buyer undertakes to insure the goods delivered under retention of title and keep them insured against fire, explosion, water damage and theft, and provide the insurance policy on first request.
Article 12. Defects and time limits for complaints
12.1. The hirer/buyer must inspect or have the hired/purchased goods inspected upon delivery or as soon as possible thereafter. The hirer/buyer must check that the goods comply with the agreement, specifically whether:
- The correct goods have been delivered;
- The delivered goods correspond to the agreement in terms of quantity (e.g. amount and number);
- The delivered goods correspond to the quality requirements or, failing that, the requirements that may be laid down for regular use and/or commercial purposes.
12.2. If any defects or deficiencies are found, the buyer must inform Omnivision in writing within 3 calendar days of delivery.
12.3. In the case of defects that are not visible, the buyer must inform Omnivision in writing within 3 calendar days, but at the latest within 3 months, of discovery.
12.4. Any defects in hired goods must be reported immediately. Any malfunction in the equipment installed by us (in the Netherlands) shall be repaired free of charge. Outside of the Netherlands, repairs may only be carried out subject to prior hire agreements in writing. However, if the malfunction is the result of self-installed equipment and/or software, call-out charges and labour costs shall apply.
12.5. If no complaints concerning an equipment failure or malfunction have been received whatsoever during the hire period, no refunds will be issued on the hire price.
12.6. If the other party does make a complaint within the set period, his/her obligation to pay and accept the orders still applies.
12.7. Goods may only be returned to Omnivision following prior written consent.
Article 13. Prices/price increases
13.1. Unless otherwise specified, the prices stated by us are:
- in euros
- exclusive of VAT
- based on the minimum quantities applied by Omnivision
- exclusive of delivery costs
- ex factory/warehouse
13.2. If Omnivision agrees a specific price with the hirer/buyer, Omnivision shall nevertheless be entitled to raise the price if Omnivision can demonstrate that it has experienced significant price changes from the point of offer until the point of delivery, with regard to raw materials, currency and/or wages or other unforeseen circumstances. In the event that performance of the agreement exceeds 1 year, Omnivision shall be entitled to raise the price annually in line with inflation, as determined by Statistics Netherlands in the consumer price index.
13.3. If the price increase is more than 10%, the buyer shall be entitled to terminate the agreement.
Article 14. Packaging
14.1. The buyer shall be obliged to return loaned packaging empty and undamaged within 14 calendar days. If the buyer does not meet his/her obligations with regard to packaging, he/she shall bear all costs arising therefrom. Such costs include those resulting from late return and replacement, repair or cleaning.
14.2. If the buyer does not return loaned packaging within the period prescribed in a reminder, Omnivision shall be entitled to replace it at the expense of the buyer, provided that Omnivision informs the buyer of this measure in the reminder.
14.3. The packaging material supplied with the delivery shall remain the property of Omnivision. In the event that packaging goes missing, a minimum fee of €25.00 per item from which the packaging is missing shall be charged.
Article 15. Payment
15.1. Payment shall be made within 14 calendar days of invoicing by the method specified by Omnivision and in the currency in which the invoice is issued. Omnivision shall be entitled to require a deposit from a hirer.
15.2. After the expiry of 14 calendar days from the invoice date, the hirer/buyer legally enters into default; once he/she is in default, the hirer/buyer shall become liable for interest at 1% per month on the amount owed, unless the statutory interest is higher, in which case the latter shall apply.
15.3. In the event of liquidation, bankruptcy or suspension of payments by the buyer, Omnivision's claims and the obligations of the hirer/buyer towards Omnivision shall be payable immediately.
15.4. Payment must be made without deduction or offset.
15.5. Payments made by the hirer/buyer shall first and foremost cover all interest and costs, and secondly invoices that have been overdue the longest, even if the hirer/buyer states that a payment relates to a later invoice.
Article 16. Recovery fees
16.1. If the buyer enters into default or fails to fulfil any of his/her obligations, the buyer shall be liable for all judicial and extrajudicial costs to obtain payment. In any case, the hirer/buyer shall be liable for 15% of the total amount to be recovered, as well as compensation for the use of the goods at 1/260 of the purchase price, plus costs for each calendar day that the goods remain in the hirer's or buyer's possession.
16.2. If Omnivision demonstrates that it has incurred costs that are higher than reasonably required, these costs shall also be recovered.
Article 17. Liability
Omnivision shall be liable towards the hirer/buyer only in the following cases:
- Liability for damage resulting from defects in goods delivered shall be only as provided for in Article 10 (Warranty) of these terms and conditions.
- Omnivision shall be liable only for damage caused by intent or gross negligence on the part of Omnivision or its subordinates.
- Omnivision's liability shall be limited to the amount paid out by Omnivision's insurer in the present case. - If, in any given case, the insurer offers no cover or does not pay out, and Omnivision is liable, Omnivision's liability shall be limited to twice the invoice value of the transaction, or at least the part of the transaction for which it is liable.
Article 18. Force majeure
18.1. In these terms and conditions, the term force majeure – in addition to its definition provided by law and case law – includes all foreseen or unforeseen external factors over which Omnivision can exert no influence but which nevertheless renders Omnivision unable to honour its obligations, including strikes at Omnivision's business.
18.2. In a case of force majeure, all of Omnivision's delivery and other obligations shall be suspended. If the period in which force majeure does not allow Omnivision to fulfil its obligations lasts longer than 2 months, both parties shall be entitled to annul the agreement, without any obligation whatsoever to pay damages.
18.3. If Omnivision has already partially performed its obligations or can only partially perform its obligations at the time when the situation of force majeure commences, it shall be entitled to separately invoice for the part already delivered or to be delivered and the hirer/buyer shall be obliged to pay this invoice as if it were a separate agreement. This shall not apply, however, if the part already delivered or to be delivered has no value of its own.
Article 19. Dispute settlement
The court covering Omnivision's place of business shall have exclusive jurisdiction over any disputes, unless such competence is vested in the sub-district court. Omnivision shall nevertheless have the right to bring the other party before the competent court according to law.
Article 20. Applicable law
Dutch law shall apply to each and every agreement between Omnivision and the buyer. The Vienna Convention is explicitly excluded.
Article 21. Changes to and location of the terms and conditions
The present terms and conditions have been filed with the Chamber of Commerce in Eindhoven.
The most recently filed version or the version valid at the time when the present transaction was concluded shall always apply. If any provision of these general terms and conditions of hire and purchase proves to be invalid, this shall not affect the validity of the remaining provisions.