ARTE ESPINA General conditions of sale, delivery and payment

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1. Applicability
1.1. These conditions shall apply to all quotations, advice, offers, consignments sent on approval, sales and deliveries made to purchasers by ARTE ESPINA, as well as to all related agreements and other legal relationships in this respect.
1.2. ARTE ESPINA expressly stipulates that conditions of the purchaser shall not be applicable.
1.3. Once the purchaser has entered into a contract under the present conditions, he/she shall agree to the applicability of these conditions to all future agreements between him/her and ARTE ESPINA, unless otherwise agreed in writing.

2.Offers / quotations / orders
2.1. All offers and quotations made by ARTE ESPINA shall be without obligation and shall not be binding for ARTE ESPINA.
2.2. Orders made by purchasers shall not be binding for ARTE ESPINA unless they have been confirmed as laid down in article 2.3.
2.3. Any order made by the purchaser and accepted by ARTE ESPINA as well as any offer made by ARTE ESPINA and accepted by the purchaser, shall form a separate agreement between ARTE ESPINA and the purchaser. This agreement shall only become effective from the moment this order or offer is confirmed in writing by ARTE ESPINA and shall be executed exclusively in accordance with this confirmation or shall become effective from the moment ARTE ESPINA shall commence implementation of this agreement.
2.4. Alternative arrangements made prior to the agreement which are not mentioned in the written confirmation of the agreement made by ARTE ESPINA shall not apply, unless and insofar as ARTE ESPINA shall have agreed to these arrangements in writing.

3.Price
3.1. The prices as listed in the quotations shall be without obligation. No separate rights can be derived from these, at least not without taking the quotation as a whole into consideration.
3.2. All prices shall be ex store and exclusive of VAT, costs of transportation, insurance, and government levies, unless otherwise agreed.
3.3. Prices are based on the prices laid down at the time of confirmation of the agreement by ARTE ESPINA. If, for example, the cost price increases at a later date due to a price increase on the part of ARTE ESPINA’s suppliers, changes in exchange rates, changes in government regulations or other factors, ARTE ESPINA shall be entitled to increase the prices that were initially agreed accordingly. It is expressly stipulated that the above enumeration is not exhaustive. The purchaser shall be obliged to pay the cost price increased in this manner. If, however, the purchase price shall be so increased within three months after entering into the agreement, the purchaser shall be entitled to dissolve the agreement, on condition that ARTE ESPINA shall be compensated for the costs already incurred in connection with the agreement.

4.Delivery time, delivery and taking possession
4.1. Delivery conditions for each agreement shall be agreed upon between the two parties at a later date, in accordance with the latest Incoterms and with the latest Incoterm regulations relating to the manner of delivery decided upon. These Incoterms shall form an indissoluble part of these conditions.
4.2. In principle, delivery shall be made ex store, unless otherwise agreed in writing. The risk of the goods shall be borne by the purchaser as of the time of delivery.
4.3. If a manner of delivery has been agreed whereby ARTE ESPINA shall be responsible for the transport of the goods, ARTE ESPINA shall be entitled to have the goods delivered in a different manner than agreed, to be decided by ARTE ESPINA, if external circumstances have made normal water, road or rail traffic impossible or more difficult. Extra costs resulting from such a different manner of delivery shall be borne by the purchaser.
4.4. The delivery times agreed with ARTE ESPINA shall only be considered as indicative and not as deadlines. ARTE ESPINA shall be entitled to deliver the goods in parts and/or, in the event of more than one agreement, to fulfil the terms of each agreement separately. In any case, ARTE ESPINA may suspend its delivery obligation at any time if the purchaser has not fulfilled any obligation towards ARTE ESPINA. Furthermore, the term of delivery shall be extended with a period of time equal to the time lost due to delay or hindrance caused by circumstances beyond the control of ARTE ESPINA, and shall also be extended in the event that and as long as the purchaser shall have neglected to provide ARTE ESPINA with clear forwarding instructions.
4.5. Exceeding the term of delivery, due to any cause whatsoever, shall under no circumstances entitle the purchaser to compensation for direct or indirect damages, to dissolve the agreement or refuse to comply with it, or to suspend any obligation resulting from the agreement, unless exceeding the term of delivery shall be the fault of ARTE ESPINA, ARTE ESPINA has been given the opportunity to deliver within a reasonable period of time, and the time by which the term of delivery has been exceeded is unreasonably long.
4.6. The purchaser shall be obliged to take full possession of the goods delivered by ARTE ESPINA at the time ARTE ESPINA provides these goods. Furthermore, the purchaser shall be obliged to provide sufficient space for transport and/or storage of the goods at the time of delivery, thus guaranteeing rapid transfer.

5.Transfer of ownership
5.1. Ownership of the goods shall be retained by ARTE ESPINA and shall not be transferred to the purchaser until the purchaser has completely fulfilled his/her obligations towards ARTE ESPINA arising from the agreements entered into for the current or future delivery of goods as well as from the failure to fulfil such agreements. ARTE ESPINA shall therefore retain ownership of the goods delivered or to be delivered by ARTE ESPINA, until
a. the purchaser has met all his/her obligations resulting from the goods delivered or to be delivered under the agreement;
b. all claims resulting from failure to meet the obligations from such agreements on the part of the purchaser have been settled;
5.2.1. The purchaser shall not be entitled to invoke a right of retention with respect to the costs of retention and to set these costs off against the obligations due on his/her part.
5.2.2. If any goods shall be owned by ARTE ESPINA in consequence of the above, the purchaser shall only have the disposal of the said goods as part of his/her normal business operations.
5.2.3. Goods which have been put at the disposal of the purchaser and which are owned by ARTE ESPINA must bear an ARTE ESPINA label and/or tag unambiguously and clearly indicating ownership by ARTE ESPINA. If necessary, the purchaser will take any action required in this regard.
5.2.4. If the purchaser fails to meet the obligations as mentioned in subsection 1., ARTE ESPINA shall be entitled to retrieve or have retrieved the goods which are owned by ARTE ESPINA from their location at that time, with the costs of such retrieval to be borne by the purchaser. The purchaser now grants ARTE ESPINA irrevocable authorisation to enter the location used by or on behalf of the purchaser for this purpose at any time.
5.2.5. All goods originating from ARTE ESPINA in the possession of the purchaser shall always be considered to be the same goods listed on the invoices due, at least insofar as the quantity of goods in the purchaser’s possession shall not exceed the quantities listed on the unpaid invoices in terms of type and composition.
5.3 The purchaser shall be obliged to cooperate at ARTE ESPINA’s first request to effect a non-possessory pledge on all goods delivered by ARTE ESPINA for which the title has been transferred to the purchaser and/or to provide any other form of security in order to ensure the fulfilment on the part of that purchaser of all that still remains to be claimed from this purchaser by ARTE ESPINA, without prejudice to the right of the purchaser to resell and deliver these goods to his/her purchasers as part of his/her normal business operations. The purchaser shall be obliged to cooperate in effecting the said non-possessory pledge and the corresponding registration, and shall be expected to agree to this.
5.4. If and as long as the goods delivered are under a non-possessory pledge, or ARTE ESPINA shall retain title to these goods, the purchaser shall not be permitted to alienate these goods or to vest any limited commercial right on them, other than in the course of his/her normal business operations. In the event of the above, the purchaser shall be obliged to use or store the goods in his/her care with due diligence.

6. Complaints concerning defects and invoice amount
6.1. The purchaser shall be obliged to check at delivery whether all is in accordance with the agreement; the aforementioned inspection should in all cases include verification of the correct numbers and types (based among other things on the certificates of delivery) and of the condition of the goods.
6.2. Complaints concerning visible defects in the exterior of the goods and shortcomings thereof must be filed no later than ten days after completion of delivery, on penalty of forfeiture of any claim of the purchaser against ARTE ESPINA in this regard.
6.3. Complaints concerning non-visible defects in the exterior must be filed within ten days after they were detected, or reasonably could have been detected, yet within a maximum of three months after completion of delivery, on penalty of forfeiture of any claim of the purchaser against ARTE ESPINA in this regard.
6.4. The purchaser may only file a lawful written complaint against the invoice (amount) within the term of
payment stated on the invoice. 6.5. ARTE ESPINA cannot be obliged to deal with complaints concerning the goods delivered and/or the invoice which have not reached ARTE ESPINA until after the term as described above has expired. It shall not be justifiable to argue that defects which do not occur until one year has passed since delivery provide reason to nullify the agreement. In the event that the purchaser and/or a third party shall handle the goods improperly and/or attempt to repair or make modifications to such goods without prior consent of the user, the purchaser shall only be entitled to claim that the goods do not comply with the agreement if he/she shall prove that such a claim can be based on facts which would have occurred in the same manner had the repair, modification(s) and/or improper handling not been carried out.
6.6 Small defects which are common in business and /or unavoidable technical abnormalities in quality, size, colour, finish/workmanship and pile pattern, cannot be a reason for complaints.
6.7 If and insofar as the complaint(s) about the goods and/or the invoice is/are justified in the opinion of ARTE ESPINA, ARTE ESPINA shall decide whether to (1) replace the goods free of charge or (2) reimburse the purchaser for the purchase price.
6.8. ARTE ESPINA shall not be obliged to take back the goods for credit entry. When ARTE ESPINA is nonetheless willing to do so, ARTE ESPINA will credit no morethan the invoice price paid previously or, when lower, the current price.

7. Guarantees / Liability
7.1. ARTE ESPINA shall vouch for the proper quality of the goods it supplies in such a manner that it shall guarantee that these goods meet the requirements of normal commercial quality and of the special specifications listed in the agreement at the time of actual delivery, if and insofar as the purchaser has agreed to these. ARTE ESPINA does not vouch for the suitability of the goods for the purposes indicated for them by the purchaser, not even when this purpose has been made known to ARTE ESPINA, unless both parties have agreed otherwise in writing.
7.2. ARTE ESPINA shall not be liable for damages suffered by the purchaser and/or his/her employees resulting from failure to fulfil its obligations to the purchaser, including the obligation to deliver goods in any other manner than referred to in articles 6.2., 6.3. and 6.4., except if and insofar as these damages are due to gross negligence or intention on the part of ARTE ESPINA and/or its employees. ARTE ESPINA shall also not be liable for damages resulting from a wrongful act on the part of ARTE ESPINA and/or one or more of its employees for which ARTE ESPINA could be held responsible based on article 6:170 of the Netherlands Civil Code, except if and insofar as these damages are due to gross negligence or intention on the part of ARTE ESPINA and/or its employees. The purchaser shall indemnify ARTE ESPINA for any claim by third parties for compensation for any damages suffered by these third parties as a result of use of the goods by the purchaser and/or his/her employees or third parties.
7.3. ARTE ESPINA shall never be liable for consequential loss, consequential damages or indirect damages.
7.4. The compensation for the damages caused by defects in the goods will never amount to a sum higher than the invoice value of the goods in question.
7.5. Any claim on ARTE ESPINA shall lapse by the mere expiry of one year after the claim arises.
7.6. Any means of defence which ARTE ESPINA can derive from the agreement with the purchaser to defend itself with respect to its liability can also be called upon by the ARTE ESPINA employees against the purchaser, as if these employees themselves were a party to the agreement.

8. Liability of the purchaser
8.1. If and insofar as the purchaser shall fail to comply with one or more subsections of the agreement and/or one or more of the following conditions:
a. Not providing delivery and/or forwarding instructions in time, or instructions concerning type and/or quality;
b. Refusing to take up partial deliveries and/or deliveries in advance;
c. Not providing any necessary permit and/or approval in time and/or authorisation for the import and/or payment and/or sale of the goods; and in consequence thereof shall cause ARTE ESPINA damages, the purchaser shall be obliged to compensate for all resulting damages, including damages consisting of injury to the good name and reputation of ARTE ESPINA. The purchaser shall further indemnify ARTE ESPINA for all claims by third parties to compensation for any damages suffered by these third parties, caused by or connected in any other way with the failure of the purchaser to fulfil any obligation resulting from the agreement or the aforementioned conditions.

9.Inspection
9.1. If and insofar as it is agreed that the goods to be delivered are to be inspected by the purchaser in advance, ARTE ESPINA shall provide the purchaser with samples or specimens for this purpose.
9.2. If and insofar as ARTE ESPINA has not received any written notice of rejection from the purchaser within eight days after ARTE ESPINA has provided the purchaser with sample products, the delivery of these goods shall be considered to have been approved and the purchaser shall be considered to have recognised the good quality of these goods, so that any right of the purchaser to appeal on the basis of defects in the goods in question shall irrevocably become invalid at that time.

10.Payment / Security
10.1. Unless special payment conditions have been agreed upon, payments shall be made to the ARTE ESPINA office, at the address stated on the invoice, within 8 days after the invoice date.
10.2. ARTE ESPINA shall at all times be entitled to demand advance payment or immediate cash payment, in which case the purchaser shall be obliged to comply.
10.3. The purchaser shall be obliged to provide security for the payment of the purchase price of the goods to be delivered, in a manner approved by ARTE ESPINA, if and as soon as ARTE ESPINA shall request this, at any time whatsoever.
10.4. If the purchaser does not pay any amount due in accordance with the stipulations in these Conditions, he/she shall be considered to be in immediate and legal default, without any further proof of default being required. In this case, all claims by ARTE ESPINA on the purchaser, on any basis whatsoever, shall be payable on demand, while ARTE ESPINA can claim interest in the amount of 1.5% per month or part thereof over the total amount of these claims, with immediate effect.
10.5. All claims by ARTE ESPINA on the purchaser shall also become payable on demand when:
a. Any part of the assets of the purchaser shall be attached, the purchaser shall request a suspension of payments, bankruptcy proceedings shall be instituted against the purchaser and/or the purchaser shall be in financial difficulties in any other way;
b. The purchaser shall liquidate his/her company, change its legal form or transfer it to a third party, or relocate the seat of his/her company and/or his/her domicile abroad. If any of these circumstances occur, the purchaser shall be obliged to immediately notify ARTE ESPINA in writing.
10.6. All extrajudicial costs relating to the collection by ARTE ESPINA of any claim on the purchaser shall be borne by the purchaser. The extrajudicial costs shall be at least 15% of the claim to be assigned for collection, with a minimum of € 150.00.
10.7. Each payment made by the purchaser shall be regarded a payment of the oldest outstanding invoice, regardless of whether the purchaser has explicitly indicated otherwise with his/her payment. (Partial) payments made by the purchaser shall, in accordance with article 6:44 of the Netherlands Civil Code, first serve to settle any extrajudicial costs which may have arisen, then to pay any interest due, and subsequently to reduce the principal sum.
10.8. The purchaser shall not be entitled to set off any debt to ARTE ESPINA against any debt of ARTE ESPINA to the purchaser, disputed or undisputed, or to suspend payment thereof in connection with a debt of ARTE ESPINA to the purchaser, disputed or undisputed.

11.Dissolution
11.1. If and as soon as the purchaser shall fail to fulfil one or more of his/her obligations or shall fail to do so in due time or properly, shall be declared bankrupt or have a petition filed in this respect, shall request suspension of payments, liquidate his/her company or if his/her company shall otherwise become inactive, if part of his/her assets shall be attached, if he/she shall offer an arrangement to his/her creditors, or otherwise appear to be insolvent, ARTE ESPINA shall be entitled to dissolve the agreement without judicial intervention by means of a written declaration and to claim compensation for costs, damages and interest.
11.2. If one of the circumstances listed in subsection 1 shall occur, the purchaser shall be obliged to immediately notify ARTE ESPINA in writing. Furthermore, ARTE ESPINA shall be entitled to dissolve the agreement with the purchaser in whole or in part if the agreement with the supplier or appointee is dissolved, regardless of the reason, or is not carried out by ARTE ESPINA or its supplier or appointee for other reasons. In this case, ARTE ESPINA shall only be obliged to pay back or credit the purchase price charged, while the goods already delivered are to be returned by the purchaser.
11.3. In the event of strike, fire, loss of goods in transit, water damage, government measures, delay in shipment abroad, supply delay, export ban, war, mobilisation, transport obstructions, export obstructions, import obstructions and in all cases of force majeure, ARTE ESPINA shall be entitled, at its own discretion, to extend the delivery time with a period of time equal to the duration of the obstruction, cancel the sale, insofar as it is affected by the obstruction, or enter into a different agreement with the purchaser. In case of an obstruction, ARTE ESPINA, at the written request of the purchaser, shall notify the purchaser within 8 days of the possibility which shall apply.

12.Force majeure
12.1. Force majeure shall be considered to exist if the performance of the agreement is partially or completely obstructed, temporarily or not, by circumstances beyond the control of both parties and/or by circumstances affecting ARTE ESPINA such as strike, lock-out, blockade, revolt, riots, interruption of transport and other transport obstructions, accidents, fire, interruption of business operations, import or export restrictions, extraordinary absenteeism, delay or non-implementation of delivery by suppliers and delays in product processing by third parties on assignment from ARTE ESPINA.
12.2. In the event of force majeure, the obligations of both parties shall be suspended. If the situation of force majeure shall last longer than four months, either party shall be entitled to unilaterally dissolve the agreement with respect to those parts of it that have not yet been performed by means of a written statement, with no mutual obligation to compensate for damages.

13.Intellectual and industrial property rights
13.1. The purchaser shall be obliged to indemnify and reimburse ARTE ESPINA for all costs, damages and interest which may be incurred by ARTE ESPINA or which ARTE ESPINA may suffer as a result of claims made by third parties against ARTE ESPINA concerning intellectual and industrial property rights, through the use, among other things, of data or models provided to ARTE ESPINA by or on behalf of the purchaser for the performance of any agreement.
13.2. All designs, sketches, drawings, reports, models, patterns, as well as any tools, outlines or other documents, presented to the purchaser by ARTE ESPINA by tender or separately, which may be subject or equivalent to any right of intellectual or industrial property, as well as the intellectual and industrial property rights relating to these, shall be and remain the property of ARTE ESPINA and shall belong exclusively to ARTE ESPINA and must be returned to ARTE ESPINA at its first request, even if the purchaser has been charged for them, unless explicitly agreed other-wise in writing. The same shall apply to prototypes, samples and models for which the purchaser has not been charged or for which he/she has not paid. The purchaser is thus not permitted to copy and/or reproduce any product in whole or in part in the original or a modified manner or in any manner whatsoever, without the prior written explicit approval of ARTE ESPINA.
13.3. Neither shall the purchaser be permitted to use the documents, prototypes, samples and models as referred to in article 13.2 differently than agreed and without written authorization of Arte Espina to give these to third parties for inspection, nor to reproduce them in whole or in part.
13.4. Prototypes, models and/or samples for which the purchaser has been charged cannot be return-ed to ARTE ESPINA for crediting.
13.5. Advertising material, in the broadest sense of the term, which may have been given to the purchaser, shall remain the inalienable property of ARTE ESPINA and can be re- claimed by ARTE ESPINA at any time, even if the purchaser shall have contributed towards the cost.
13.6. Without written and explicit permission of Arte Espina, the buyer is forbidden to use the products, designs, sketches, drawings, models, proto types, samples, or other, to modify, copy, distribute, send, expose, reproduce, make public, license, or re-create for e-mail services and any other method of Internet use, including: bulletin board services, chat areas, newsgroups, forums or web pages of third persons.

14.Consignments sent on approval
14.1. If goods are sent on approval at the request of the purchaser, the purchaser must send ARTE ESPINA a written notification within a maximum of 14 days after the date on the approval invoice or slip, indicating that he/she wishes to keep the goods sent on approval in whole or in part. If this is the case, the date on which the agreement came into effect shall be the day on which ARTE ESPINA received the written notification regarding acceptance of (part of) the consignment sent on approval. The valid price shall be the price on the approval invoice or slip.
14.2. Goods sent on approval which are not kept must be returned by the purchaser in their original condition within a maximum of 14 days after the date on the approval invoice or slip, unless otherwise agreed.
14.3. If ARTE ESPINA does not receive written notification from the purchaser within the maximum term of approval of 14 days, the first weekday after this term shall count as the day on which the agreement came into being, meaning that the purchaser shall take possession of all goods listed on the approval invoice or slip. The valid price shall be the price on the approval invoice.
14.4. The purchaser must then take care of the goods with due diligence. Damages and similar effects caused by and/or during the period the goods sent on approval were in the hands of the purchaser, shall be charged to the purchaser. If the goods sent on approval shall have incurred damages which make them unfit for sale, they will not be taken back by ARTE ESPINA.

15. Applicable law, language and legal jurisdiction
15.1. These conditions and all agreements, invoices and other documents to which these conditions apply, shall be governed by Dutch law and shall be considered to be accepted or made in the Netherlands. All disputes resulting from or otherwise relating to the agreement and/or these conditions, shall be adjudicated exclusively by the competent court in Roermond or the competent sub-district court in Venlo. If the place where the obligation is or must be fulfilled, referred to in article 5 subsection 1 of the EEX verdrag (Convention on the Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters), shall be applicable, it shall be presumed to be located in Venlo. Nonetheless, ARTE ESPINA shall be explicitly entitled to choose a court in the town where the purchaser lives or where his/her business is established.
15.2. These conditions shall be printed in the Dutch, English, German, French, Spanisch and Italian languages. In case of differences in interpretation between these versions, the Dutch version shall be decisive and binding for both parties at all times.
15.3. The United Nations Treaty on Contracts for the International Sale of Goods (CISG) shall also apply to the agreements to be entered into by ARTE ESPINA, insofar as these conditions shall not depart extraordinarily from this treaty. Nonetheless, ARTE ESPINA shall be entitled to exclude the aforementioned treaty per individual agreement.
15.4. These conditions have been filed with the district court registry in Roermond under number 8/2004.
15.5. The aim of these general conditions shall be to regulate the legal relationship between ARTE ESPINA and the purchaser in a reasonable manner. Insofar as circumstances occur in which these conditions or any subsection thereof may lead to unreasonable results, these conditions shall not be applicable. A subsection considered to be unreasonably burdensome may not be a ground for rejecting all conditions.

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