DINO MURMELN – regulations

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY HIGH5 LOYALTY B.V.   

ARTICLE 1 APPLICABILITY  

1.1 These conditions apply to all quotations and agreements in which High5 Loyalty B.V. (hereinafter: “High5 Loyalty”) acts as a producer, seller, and supplier of goods and services, in the broadest sense of the word, to its counterparty (hereinafter: “Customer”), and all agreements arising therefrom.  

1.2 General terms and conditions referred to by the Customer, regardless of the name, do not apply and are expressly rejected.  

1.3 Deviations from these conditions are only valid if confirmed in writing by High5 Loyalty to the Customer.  

1.4 In case of conflict between the provisions of the agreement and the general conditions, the provisions of the agreement prevail.  

1.5 High5 Loyalty has the right to unilaterally change these general conditions. Changes also apply to already concluded agreements. Changes take effect one month after notification by means of a written communication to the Customer, including the sending of the modified general conditions. If the Customer does not wish to accept the changes to the general conditions, he has the right to reject these changes by registered letter up to the time of entry into force of the changes. If the Customer does not do so, he is deemed to have accepted the changes after the time of entry into force.  

1.6 Versions of these general conditions are available in other languages. In case of differences in the interpretation of the text, the Dutch text prevails. 

ARTICLE 2 AGREEMENTS 

2.1 All offers made by High5 Loyalty are without obligation, unless they contain a term for acceptance by Afnemer. If an offer contains a non-binding offer and this is accepted, then High5 Loyalty has the right to revoke that offer within two days of receiving the acceptance.  

2.2 If the agreement is entered into in writing, it is concluded on the day that the contract is signed by High5 Loyalty.  

2.3 The data provided in catalogs, images, drawings, dimensions and weight specifications and the like, only give a general indication of the described products and are not binding on High5 Loyalty.  

2.4 Any delivery made in excess of the quantities specified in the agreement, or any work performed by High5 Loyalty in excess of what is specified in the agreement and has been recorded in writing or agreed upon verbally with Afnemer, shall be considered a surplus delivery. A surplus delivery leads to a corresponding increase in the sales price.  

2.5 Verbal commitments made by a subordinate of High5 Loyalty do not bind High5 Loyalty unless and to the extent that they have been confirmed in writing by High5 Loyalty.  

2.6 Each offer is based on the information provided by Afnemer. Afnemer is responsible for the accuracy and completeness of this information. 

ARTICLE 3 PRICES

3.1 The prices quoted by High5 Loyalty are exclusive of value-added tax and other levies imposed by the government and are based on delivery ex-factory, unless otherwise stated in these terms and conditions. Ex-factory refers to the business premises of High5 Loyalty.  

3.2 If cost increases occur on the part of High5 Loyalty after the agreement has been entered into, for example due to changes in levies, duties, excise duties, raw materials and/or currency, High5 Loyalty is entitled to increase the agreed price accordingly. Any undelivered order or any part thereof will be delivered at the revised prices, unless Afnemer has the right to cancel the still undelivered orders or parts thereof in writing within seven days after being notified of the change, and to only pay for the portion of the order which High5 Loyalty has already executed based on the agreed price.  

3.3 In the event of paragraph 2, High5 Loyalty is authorized to refuse deliveries if it may reasonably assume that Afnemer will not comply with the agreement in accordance with the change.  

3.4 High5 Loyalty has the right at all times, before delivering or continuing delivery, to require Afnemer to provide sufficient security to High5 Loyalty for the performance of its obligations to High5 Loyalty, failing which High5 Loyalty is entitled to terminate the agreement.  

3.5 The agreement includes the authority of High5 Loyalty to separately charge for any additional delivery made, as soon as the amount to be charged for it is known to High5 Loyalty. If High5 Loyalty has to make new drawings, calculations, descriptions, models, or tools, etc. for any subsequent orders, Afnemer shall be liable for the costs thereof.  

3.6 Packaging is not included in the price and will be charged separately. Packaging will not be taken back unless agreed in writing by High5 Loyalty. 

ARTICLE 4 DELIVERY

4.1 The delivery time commences on the latest of the following moments: the day on which the agreement is concluded; the day on which High5 Loyalty receives the documents, data, permits, etc. necessary for the execution of the agreement; the day on which the formalities necessary for commencing the work are completed; the day on which High5 Loyalty receives the amount that must be paid in advance in accordance with the agreement, before commencing the work.  

4.2 If a delivery date or week has been agreed upon, the delivery time is formed by the period between the date of conclusion of the agreement and the delivery date or week.  

4.3 Agreed delivery times shall never be considered as deadlines, unless expressly agreed otherwise in writing. In the event of non-timely delivery, High5 Loyalty must therefore be explicitly and in writing put in default, and a reasonable period shall be given to it to deliver after all.  

4.4 In the event of non-timely delivery, the customer is not entitled to compensation or the possibility of dissolving the agreement, and may not suspend receipt and payment, except in case of intent or gross negligence on the part of High5 Loyalty.  

4.5 The goods are considered delivered as soon as they have left the factory or storage facility.  

4.6 The customer shall ensure that all necessary safety and other precautions and environmental regulations are observed by him and by the personnel he uses in executing the agreement.  

4.7 If the customer fails to take delivery of the goods after being put in default, he shall reimburse High5 Loyalty for all costs associated with this, such as storage. 

ARTICLE 5 PARTIAL DELIVERIES

5.1 High5 Loyalty is at all times entitled to deliver in partial shipments.  

5.2 If it has been agreed that delivery of the goods will take place in partial shipments, whether or not on call, each delivery shall be considered as a separate delivery transaction, with all resulting legal consequences.  

5.3 As a result of paragraph 2, payment for the individual partial shipments shall be made within thirty days of the invoice date of each individual partial shipment, unless expressly agreed otherwise in writing.  

5.4 In the case of paragraph 2, Customer is obliged to accept each individual partial shipment immediately.  

5.5 Call-off orders shall be called off within the deadlines established in the agreement.  

5.6 If Customer fails to pay any partial shipment on time, High5 Loyalty shall have the right to suspend further deliveries until Customer has fulfilled his obligations. Furthermore, High5 Loyalty may terminate the agreement in whole or in part and/or claim damages without the need for prior notice of default.  

5.7 If the goods to be delivered have not yet been manufactured or purchased by High5 Loyalty, the damages shall be fixed at thirty percent of the purchase price of the parts still to be delivered. 

ARTICLE 6 RISK AND TRANSPORT

6.1 The goods are at the risk of Customer from the moment they are delivered, including in case of free delivery.  

6.2 The transport of the goods is at the expense and risk of Customer. The means of transport shall be determined by High5 Loyalty, unless expressly agreed otherwise in writing. At the request of Customer, High5 Loyalty may arrange transport insurance, the cost of which shall be borne by Customer.  

6.3 High5 Loyalty shall not be liable for any damage to the goods or to third parties during transport.

ARTICLE 7 PAYMENT

7.1 Payment shall be made in the agreed currency, without any deduction or set-off.  

7.2 Unless otherwise agreed, payment shall be made within thirty days of the invoice date. Payment for any excess delivery shall be made within thirty days after it has been invoiced to the Customer.  

7.3 If payment has not been made within the payment term, the Customer shall be in default without any notice of default being required. From the day on which default occurs, the Customer shall owe interest on the invoice amount or the outstanding part thereof. The interest rate shall be equal to the statutory commercial interest rate.  

7.4 As soon as the Customer knows or reasonably ought to know that he cannot, cannot timely, or cannot properly fulfil his obligations, he shall immediately notify High5 Loyalty thereof in writing, stating the cause of the non-performance.  

7.5 If High5 Loyalty is forced to hand over the claim for collection, the Customer shall be obliged to reimburse High5 Loyalty for all extrajudicial and judicial costs. The extrajudicial costs shall be set at least at fifteen percent of the principal sum, with a minimum of €500. At the option of High5 Loyalty, the Customer may also be charged for the actual costs that High5 Loyalty incurs.  

7.6 If the Customer is in default, High5 Loyalty may immediately: 

• suspend its obligations towards the Customer, and/or; 
• claim compensation for the damage caused by the delay, and/or; 
• terminate the agreement.  

7.7 If the Customer is in default, High5 Loyalty has the right to store the delivered and unpaid goods at a location of High5 Loyalty’s choice at the Customer’s expense and risk.  

7.8 Any payment by the Customer shall first be applied to the costs, the interest and then to the due invoices that have been outstanding the longest, even if the Customer has assigned a different title to his payment. 

ARTICLE 8 RETENTION OF TITLE

8.1 The ownership of the goods delivered by High5 Loyalty shall only pass to the Buyer after the Buyer has paid High5 Loyalty everything that is due to High5 Loyalty in connection with the delivery of those goods, including not only the purchase price, but also any interest and costs.  

8.2 The Buyer is authorized to dispose of the goods delivered by High5 Loyalty within the framework of normal business operations and to alienate them. At the request of High5 Loyalty, the Buyer is obliged to establish a silent pledge on the claims it obtains from third parties as a result of such disposal or alienation, for the benefit of High5 Loyalty.  

8.3 Furthermore, the Buyer is obliged to take care of the goods delivered under retention of title as a good custodian and to adequately insure and keep them insured against fire, damage, and theft.  

8.4 If the Buyer fails to fulfill its obligations under the agreement with High5 Loyalty or if High5 Loyalty has good reason to fear that the Buyer will fail to do so, High5 Loyalty – in addition to the other rights mentioned in these terms and conditions – is authorized to take back the goods delivered to the Buyer. In particular – but not exclusively – this right exists if a seizure is imposed on the Buyer, if the Buyer applies for suspension of payment, if the bankruptcy of the Buyer is requested or pronounced, or if the Buyer makes any payment arrangement with one or more of its creditors. After informing the Buyer thereof, High5 Loyalty will be entitled to access its goods on working days from 8:00 a.m. to 6:00 p.m., as well as, in case of urgent reasons, on other days and outside these hours. The Buyer shall cooperate with High5 Loyalty to enable it to exercise the retention of title set out in this clause by taking back the goods delivered, including any necessary disassembly. To the extent necessary, the Buyer irrevocably authorizes High5 Loyalty to exercise its right to take back the goods.  

8.5 The Buyer is liable to High5 Loyalty for any damage that occurs to the goods before the transfer of ownership as referred to in paragraph 1 takes place. Termination and return do not affect High5 Loyalty’s rights to compensation for damage and loss. In these cases, every claim of High5 Loyalty against the Buyer will be immediately and fully due and payable.  

8.6 By entering into an agreement with High5 Loyalty, the Buyer establishes a silent pledge in advance on all goods to be delivered by High5 Loyalty to the Buyer, as security for the payment by the Buyer to High5 Loyalty of all claims, for whatever reason, of High5 Loyalty against the Buyer. 

ARTICLE 9 WARRANTY

9.1 Without prejudice to the limitations set forth elsewhere in these terms and conditions, High5 Loyalty warrants both the soundness of the goods delivered by it and the quality of the material used and/or supplied for that purpose. The warranty period is twelve months from delivery. As regards defects not detectable during inspection, it shall apply that the Purchaser must prove that such defects occurred within the warranty period and are solely or mainly a direct consequence of incorrectness in the construction applied by High5 Loyalty or defective finishing or use of non-proper material.  

9.2 High5 Loyalty will repair defects falling under the warranty in section 1 by repairing or replacing the defective part, whether or not on the premises of High5 Loyalty, or by sending a replacement part, at the option of High5 Loyalty. Any costs that go beyond the mere obligation as described in the previous sentence, including but not limited to transport costs, travel and accommodation costs as well as dismantling and assembly costs, shall be borne by the Purchaser.  

9.3 The warranty does not apply to defects arising from: 

• non-compliance with operating and maintenance instructions or use other than that which is normally intended; 
• normal wear and tear; 
• incorrect or defective assembly, installation, or repair by the Purchaser or third parties; 
• the application of any government regulation concerning the nature or quality of the materials used; 
• materials or goods supplied or processed by the Purchaser to High5 Loyalty; 
• materials, goods, methods, and constructions, to the extent applied on explicit instruction of the Purchaser; 
• parts procured by High5 Loyalty from third parties, to the extent the third party has not provided any warranty to High5 Loyalty; 
• dismantling, repair, or other work on the product by the Purchaser without prior written approval from High5 Loyalty.  

9.4 If the Purchaser fails to fulfill any obligation arising from the agreement concluded with High5 Loyalty or any related agreement, or fails to do so properly or on time, High5 Loyalty is not bound to provide any warranty under any of these agreements.  

9.5 Complaints regarding defects must be made in writing within the warranty period as soon as possible but no later than eight days after their discovery. If these deadlines are exceeded, any complaint, for whatever reason, against High5 Loyalty regarding such defects shall be deemed void. Legal actions regarding complaints must be initiated within two months after timely complaints on penalty of forfeiture.

9.6 Complaints do not entitle the Purchaser to suspend payment, and setoff is explicitly excluded. Complaints regarding part of the order do not give the Purchaser the right to reject or refuse the entire order.  

9.7 If High5 Loyalty replaces components or products to fulfill its warranty obligations, the replaced components and products become the property of High5 Loyalty.  

9.8 As regards repair or overhaul work or other services performed by High5 Loyalty, unless otherwise agreed, only a warranty is given for the proper execution of the work concerned. This warranty lasts six months. The warranty mentioned herein solely entails the obligation of High5 Loyalty to redo the work in case of unsoundness. In that case, the second sentence of section 2 of this article applies mutatis mutandis. 

9.9 No guarantee is given for inspections, advice, and similar activities carried out by High5 Loyalty.
9.10 Alleged non-fulfillment by High5 Loyalty of its warranty obligations does not release the Customer from obligations arising from any agreement concluded with High5 Loyalty.

ARTICLE 10 LIABILITY

10.1 The liability of High5 Loyalty is limited to the fulfillment of the warranty obligations described in Article 9 of these terms and conditions.  

10.2 If High5 Loyalty provides assistance and support – of any kind – during installation without having carried out the installation itself, it is done at the risk of the Customer.  

10.3 High5 Loyalty is not liable for damage caused to the Customer and/or third parties by High5 Loyalty or by the persons or tools used by High5 Loyalty in the execution of the agreement, except in cases of intent or gross negligence.  

10.4 High5 Loyalty is never liable to the Customer for consequential damages to third parties and/or loss of profit, except in cases of intent or gross negligence on the part of High5 Loyalty.  

10.5 High5 Loyalty is not liable for damage suffered by the Customer and/or third parties, which is directly or indirectly caused by the product itself, except for legally non-excludable liability.  

10.6 In any case, the liability of High5 Loyalty is limited to the invoice value of the goods as a result of which the Customer has suffered damage.  

10.7 Advice and information regarding the goods to be delivered, as well as instructions for their use, are provided by High5 Loyalty to the best of its knowledge. High5 Loyalty accepts no liability for the accuracy of its advice, information and instructions for use.  

10.8 In the event of the manufacture of goods according to drawings, models, samples or other instructions received from the Customer or third parties in the broadest sense of the word, the Customer assumes full responsibility and indemnifies High5 Loyalty in such a way that the manufacture and/or delivery of these articles does not infringe any trademark, patent, utility model or any other rights of third parties.  

10.9 High5 Loyalty is not liable for damage to or loss of goods belonging to the Customer and/or third parties, which may be entrusted to it in connection with the preparation or execution of an agreement, except in cases of intent or gross negligence on the part of High5 Loyalty.  

10.10 The Customer indemnifies High5 Loyalty as well as its personnel and auxiliary persons against claims by third parties for compensation for damage to the Customer on the basis of liability for whatever reason.

ARTICLE 11 FORCE MAJEURE

11.1 If High5 Loyalty is unable to fulfill its obligations towards the Client as a result of force majeure, or is only able to do so with difficulty, it is entitled to dissolve the agreement with the Client in whole or in part without judicial intervention, or to suspend the performance thereof in whole or in part, without being obliged to pay any damages. In the event of partial performance by High5 Loyalty, the Client shall be liable for a proportionate part of the total price.  

11.2 Force majeure shall be understood to mean: any kind of restrictive government measures, epidemics, mobilization, war, revolution, strike, occupation of the company, illness of personnel, business disruptions, seizure, fire, exceptional weather conditions, defects in machinery, transport difficulties, shortage of raw materials, semi-finished products, materials, auxiliaries and/or energy, natural disasters, total or partial default of a third party from whom goods or services must be received, and any other circumstance that High5 Loyalty could not reasonably have prevented and over which it has no control.  

11.3 In the event of force majeure on the part of the Client, High5 Loyalty shall at all times be entitled to dissolve the agreement and, unless performance of the agreement by the Client is permanently impossible, to suspend its obligations towards the Client for the duration of the default, without the Client being entitled to any form of compensation.

ARTICLE 12 TERMINATION

12.1 If the Client fails to fulfill one or more of its obligations arising from the agreement, the law, custom or the requirements of reasonableness and fairness, and/or is declared bankrupt, applies for a suspension of payment, liquidates its affairs and/or has its assets wholly or partially seized, and/or in the event of its death if the Client is a natural person, High5 Loyalty is entitled to dissolve the agreement in whole or in part without notice of default or judicial intervention.  

12.2 In the event of the foregoing, High5 Loyalty is entitled to discontinue further deliveries and to immediately demand payment for the goods and services already delivered. ARTICLE

ARTICLE 13 INDUSTRIAL PROPERTY

13.1 All drawings, images, dimensions, and weight specifications provided by High5 Loyalty, as well as all other information provided by High5 Loyalty to the Client in the context of the agreement, remain the property of High5 Loyalty, expressly subject to copyright and model and patent rights, even if costs have been charged for them.  

13.2 Without the prior express written consent of High5 Loyalty, the Client is not permitted to copy or provide these documents to third parties or make them available for inspection. 

ARTICLE 14 CHOICE OF LAW AND JURISDICTION

14.1 The legal relationship between High5 Loyalty and Customer shall be governed exclusively by Dutch law.  

14.2 Disputes shall be settled by the competent court in the place of establishment of High5 Loyalty.

ARTICLE 15 SEVERABILITY

If any provision of these general terms and conditions is or becomes invalid or unenforceable, the remaining provisions of these general terms and conditions shall remain in full force and effect, and High5 Loyalty and Customer shall consult with each other to agree on a new provision to replace the invalid or unenforceable provision, which shall take into account the purpose and intent of the invalid or unenforceable provision to the extent possible.