Terms & Conditions

GENERAL TERMS AND CONDITIONS OF SALE

THESE GENERAL TERMS AND CONDITIONS OF SALE ARE APPLICABLE TO ALL OFFERS BY ITO NAVAIDS OF NOORDWIJK, THE NETHERLANDS, HENCEFORTH “ITO NAVAIDS”, FOR THE MANUFACTURE, SALE, DELIVERY, ASSEMBLY, INSTALLATION, REVISION AND OR REPAIR OF ANY GOODS BY ITO NAVAIDS.

CONTENT:
1. GENERAL
2. OFFERS, ORDERS AND AGREEMENTS
3. DRAWINGS, QUOTES, DOCUMENTS
4. PRICE
5. DELIVERY TIME AND DELIVERY
6. RISK AND TRANSFER OF OWNERSHIP
7. FORCE MAJEURE
8. ACCEPTANCE, INSPECTION
9. GUARANTEE
10. LIABILITY AND INDEMNIFICATION
11. PAYMENT AND SECURITY
12. RESCISSION
13. DISPUTES AND APPLICABLE LAW

1. GENERAL
1.1 All offers from ITO NAVAIDS (henceforth “Offers”) to the other party (henceforth “Buyer”) for the manufacture, sale, delivery, assembly, installation, revision and or repair of any goods by ITO NAVAIDS (henceforth “Goods”) and all relevant agreements with ITO NAVAIDS are subject to these terms and conditions (henceforth “Terms”).
1.2 The applicability of general terms and conditions of Buyer is hereby expressly excluded.
1.3 Buyer may invoke provisions that deviate from these Terms only when and to the extent that ITO NAVAIDS has given prior acceptance of these provisions in writing.
1.4 Should any part of these Terms be deemed invalid, for any reason whatsoever, the remainder of the same shall remain in force and parties will, in mutual consultation, provide a regulation in substitution for the invalid stipulation, the purport of which shall be maintained to every extent possible.
1.5 Insofar as these Terms are also made available in a language other than English, in the event of any divergence or disagreement, the English text shall always prevail.

2. OFFERS, ORDERS AND AGREEMENTS
2.1 All Offers are nonbinding, unless explicitly agreed otherwise in writing.
2.2 All Orders and all acceptances of Offers by Buyer, including verbal Orders or acceptances of Offers, may not be revoked.
2.3 ITO NAVAIDS shall only be bound when it has accepted an order in writing or has commenced implementation. Moreover, ITO NAVAIDS is only bound as accepted in writing. Verbal commitments or agreements by or with ITO NAVAIDS staff members are not binding, except and insofar as ITO NAVAIDS confirms these commitments in writing.
2.4 Amendments in agreements shall be subject to these Terms as if they were separate agreements.

3. DRAWINGS, QUOTES, DOCUMENTS
3.1 All information recorded in catalogues, brochures, price lists and similar shall only be binding for ITO NAVAIDS if and insofar as explicitly agreed in writing.
3.2 All drawings, designs, models and similar supplied in connection with Goods delivered by ITO NAVAIDS, and the intellectual and industrial property rights with respect thereto, shall remain the exclusive property of ITO NAVAIDS, which shall also be considered the manufacturer and designer. With the exception of receiving express permission from ITO NAVAIDS, Buyer is not permitted to hand over ITO NAVAIDS’s documents and information to third parties nor inform same thereof.

4. PRICE
4.1 Unless expressly indicated or otherwise agreed, any prices quoted by or agreed to with ITO NAVAIDS shall be net prices, thus excluding VAT and possible import or export duties, and are based on ex works, Noordwijk, the Netherlands (EXW, Inco terms 2010). Prices quoted by or agreed to with ITO NAVAIDS shall furthermore exclude costs of packing, loading, transport, unloading, installation, assembly, insurance and or other services.
4.2 If ITO NAVAIDS undertakes to carry out the packing, loading, transport, unloading, installation, assembly, insurance or other services, and no price has been expressly agreed upon in that respect, ITO NAVAIDS shall be entitled to charge Buyer the actual costs incurred and or the rates it usually charges.
4.3 Prices set by or agreed upon with ITO NAVAIDS are based on the cost price at the time of offer or acceptance of an order by ITO NAVAIDS. If the cost price increases thereafter, ITO NAVAIDS is entitled to charge Buyer a proportionate price increase (“fixed price”), unless explicitly agreed otherwise.
4.4 If Buyer requests changes or additions to the agreement after it has been made, ITO NAVAIDS shall affect those to the extent that it may be reasonably expected. To the extent that those changes and additions involve additional costs, Buyer will incur the cost of these charges in their entirety. In such a case, ITO NAVAIDS shall also be entitled to arrange a new delivery period.

5. DELIVERY TIME AND DELIVERY
5.1 The delivery time becomes effective once the agreement has been made, once Buyer has given ITO NAVAIDS all necessary documents and data and once ITO NAVAIDS has received any advance payments agreed upon or a security for its benefit.
5.2 Subject to the exceptions as referred to in Clause 8.3, the Goods to be delivered by ITO NAVAIDS shall be deemed delivered as soon as they have left the premises of ITO NAVAIDS or of third parties contracted by ITO NAVAIDS to transport Goods to or on behalf of Buyer, unless expressly agreed otherwise.  
5.3 If ITO NAVAIDS expects that the delivery period to exceed that agreed upon, ITO NAVAIDS will inform Buyer hereof as the earliest point possible. Failure of ITO NAVAIDS to deliver Goods in a timely fashion shall never entitle Buyer to additional or substitute compensation, or to non-compliance of Buyer of any of its own obligations arising from the agreement. However, insofar as ITO NAVAIDS fails to deliver Goods in a timely fashion as the result of circumstances that can only be attributed to ITO NAVAIDS, Buyer shall be entitled to rescind the agreement by means of a written statement, if and insofar as after the aforementioned failure ITO NAVAIDS still fails to deliver the Goods within a delivery period considered reasonable and as agreed with Buyer in writing.
5.4 Delivery periods shall be extended by the amount of time that the implementation of the agreement is delayed due to force majeure. Delivery periods shall also be extended by the amount of time that Buyer is later in the fulfilment of any obligation than is agreed to or could reasonably be expected by ITO NAVAIDS.
5.5 ITO NAVAIDS reserves the right to deliver Goods in parts. Each partial delivery will be deemed a separate delivery with respect to the applicability of these Terms. ITO NAVAIDS shall be entitled to demand payment for each partial delivery before proceeding with others. Failure of Buyer to comply with its duty to effect payment (or to effect payment by requested date) shall result in the suspension of ITO NAVAIDS’ duty to deliver Goods.

6. RISK AND TRANSFER OF OWNERSHIP
6.1 Buyer has risk in Goods as sold by ITO NAVAIDS from the moment that ITO NAVAIDS considers Goods as having been delivered as per Clauses 5.2 or 8.3.
6.2 Unless expressly agreed to otherwise, loading, dispatching or transport, unloading and insuring of Goods to be delivered shall be effected for the risk of Buyer , even if ITO NAVAIDS arranges same.
6.3 All Goods sold by ITO NAVAIDS shall remain the property of ITO NAVAIDS until such time as Buyer has paid in full all that it owes ITO NAVAIDS as regards the underlying agreement and or as regards prior or subsequent agreements of the same nature, including damages, costs and interest. Buyer has no right of retention in respect of those Goods.
6.4 Buyer grants ITO NAVAIDS irrevocable authority to take any measures necessary to maintain the property rights of ITO NAVAIDS.
6.5 ITO NAVAIDS, and or with third party title owners, retains all industrial or intellectual property rights to or in connection with delivered Goods; industrial or intellectual property rights shall never be transferred to Buyer.

7. FORCE MAJEURE
7.1 ITO NAVAIDS shall be permitted to invoke force majeure if implementation of agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably beyond its control, including site or building blockades, strikes, delayed delivery of parts ordered by ITO NAVAIDS from third parties, Goods or services, accidents and interruptions of business operations.
7.2 Invocation of force majeure on the part of ITO NAVAIDS shall suspend all obligations of ITO NAVAIDS. If the force majeure continues for more than 90 days, both ITO NAVAIDS and Buyer shall be authorised to rescind any non-feasible parts of the agreement by means of a written declaration, without prejudice to the provisions stated in Clause 12. Where ITO NAVAIDS has already executed part of an agreement, Buyer shall pay the purchase price for any Goods already delivered.

8. ACCEPTANCE, INSPECTION
8.1 Buyer shall be bound to lend its cooperation, without delay, to any inspection or test agreed to. If Buyer fails to cooperate to inspection or testing in a timely fashion, or at the time agreed to, Goods shall be deemed already approved.
8.2 At the moment that Goods delivered are ready for transport or to be dispatched, Buyer is obligated to take discharge and acceptance.
8.3 If Buyer does not lend its cooperation to inspection, testing or acceptance of Goods, or fails to do so in a timely fashion, Goods shall be deemed as having been delivered, in deviation from the provision of Clause 5, at the time that ITO NAVAIDS could have expected or desired inspection, testing or acceptance.
8.4 As regards Buyer, ITO NAVAIDS reserves the right to seek compensation for damage and costs that are the result of the refusal to effect or the delay in the inspection, testing or acceptance of Goods.
8.5 Before Goods can be refused due to defects found during inspection or testing, ITO NAVAIDS shall have the opportunity to repair such defects. If Buyer makes no use of the option to inspect or test Goods, Goods shall be deemed as having been approved.

9. GUARANTEE
9.1 ITO NAVAIDS refers to the ITO NAVAIDS Warranty Notice, as separate from these Terms, for a description of the warranty terms. The warranty terms stated in the ITO NAVAIDS Warranty Notice are applicable.

10. LIABILITY AND INDEMNIFICATION
10.1 The liability of ITO NAVAIDS in connection with any defects in Goods it has delivered is limited to the fulfilment of the guarantee described in the previous Clause.
10.2 ITO NAVAIDS shall never be obligated to pay any substitute or additional compensation for damage, except if and insofar as the damage was inflicted intentionally or upon gross negligence of ITO NAVAIDS or its employees. The liability of ITO NAVAIDS for loss of profits, consequential or indirect damages is, however, excluded at all times, except in the case of intentional misconduct on the part of ITO NAVAIDS.
10.3 In every case where ITO NAVAIDS is obligated to pay compensation for damage, at the discretion of ITO NAVAIDS, the amount shall never exceed the invoice value of Goods in connection with which the damage was caused.
10.4 Each claim made against ITO NAVAIDS, with the exception of those acknowledged by ITO NAVAIDS, shall lapse on account of the mere expiration of a period of twelve (12) months after the claim was made.
10.5 Conditions that limit, exclude or establish liability, and that suppliers or subcontractors of ITO NAVAIDS can invoke against ITO NAVAIDS in connection with Goods delivered, can also be invoked by ITO NAVAIDS against Buyer.
10.6 Employees of ITO NAVAIDS or independent contractors ITO NAVAIDS has enlisted to implement the agreement, may, with respect to Buyer, invoke all defences to be derived from the agreement as though they themselves were party to that agreement.
10.7 Buyer shall hold harmless and indemnify ITO NAVAIDS, its employees and independent contractors it has enlisted to implement the agreement against each claim by third parties in connection with the implementation of the agreement by ITO NAVAIDS, insofar as these claims are greater than or deviate from those to which Buyer is entitled with respect to ITO NAVAIDS.
10.8 As regards Goods to be delivered, Buyer shall carefully observe national and international governmental export, import and user restrictions. Furthermore, Buyer will hold ITO NAVAIDS harmless with respect to damage suffered by ITO NAVAIDS as the result of any violation of these restrictions. 

11. PAYMENT AND SECURITY
11.1 Unless expressly agreed otherwise, payment shall be made no more than thirty (30) days after the invoice date. However, at all times, ITO NAVAIDS shall reserve the right to demand full or partial payment in advance and or otherwise obtain security for payment. Buyer’s refusal to provide the required security gives ITO NAVAIDS the right to suspend its obligations and, ultimately, without any notice of default or legal intervention, the right to dissolve the agreement in full or in part, without prejudice to its right to compensation for any damages suffered by Buyer.
11.2 In the event of payments made by bank transfer, Buyer is obligated to mention the respective invoice numbers at all times. Payments made by bank transfer that are not stated in this way (in their entirety) shall first be applied against the oldest invoices as well as against the interest due in relation thereto.
11.3 The moment of payment shall be the moment at which the amount due has been credited to the account of ITO NAVAIDS irrevocably and in full.
11.4 Buyer relinquishes any right to set off amounts charged by and between parties. Claims of guarantee do not suspend Buyer’s payment obligations.
11.5 Failure of Buyer to pay any amount due as described above shall place Buyer in default without prior notice of default. If Buyer remains in default with any payment, all other claims from ITO NAVAIDS on Buyer shall be due, immediately and in full, and the default shall become effective also with respect to those other claims, and without notice of default. From the day Buyer is in default, overdue payment interest at 2% per month shall be due for any part of a month during which the default continues.
11.6 Buyer shall pay all judicial and extrajudicial costs incurred by ITO NAVAIDS due to failure of (timely) payment. The extrajudicial costs are deemed to amount to at least 15% of the amount claimed.

12. RESCISSION
12.1 If Buyer fails in all respects to fulfil one or more of its obligations, or fails to do so in a timely or proper fashion, is declared bankrupt, requests (temporary) suspension of payments, proceeds to liquidate its company, and if its capital is seized in part or in its entirety, ITO NAVAIDS shall, without being held liable for any compensation, be entitled to suspend implementation of the agreement or to rescind the agreement in part or in its entirety by means of a written statement without prior notice of default or legal intervention, such at its own discretion and always without prejudice to any rights to which it is entitled to compensation of costs, damages and interest.
12.2 Buyer shall only be entitled to rescind the agreement in the events described in Clauses 5.3 and 7.2 of these Terms and in such cases only after payment of all amounts owed to ITO NAVAIDS at that time, whether or not due, have been made.

13. DISPUTES AND APPLICABLE LAW
13.1 All disputes existing between parties shall be heard exclusively by the Rotterdam District Court in the Netherlands unless ITO NAVAIDS prefers another competent forum.
13.2 The provisions of Clause 13.1 leave intact ITO NAVAIDS’ right to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Amsterdam, the Netherlands and the arbitral procedure shall be conducted in the English language.
13.3 All agreements between ITO NAVAIDS and Buyer are subject to Dutch law. The stipulations specified in the Convention of Contracts for the International Sale of Goods of 11 April 1980 do not apply to such agreements, nor does any future international regulation concerning the purchase of moveable property and of which parties can make use.