T&Cs
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
ENOUGH B.V.
Louis Braillelaan 80
2719 EK ZOETERMEER
THE NETHERLANDS
Chamber of Commerce: 80420311
1. DEFINITIONS
1.1. Agreement: all (legal) and agreements, including but not limited to sales agreements, framework and/or sub-agreements between ENOUGH and the Purchaser;
1.2. Confirmation of Sale: written confirmation by ENOUGH of the contractual relationship between the Parties resulting in the conclusion of an Agreement;
1.3. Force Majeure: any of the following circumstances or occurrences beyond a party’s reasonable control – whether or not foreseeable at the time of the Agreement – as a result of which such party cannot reasonably be required to perform its obligations, including without limitation:
a) acts of God, flood, drought, earthquake or other natural disaster;
b) epidemic or pandemic;
c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
d) nuclear, chemical or biological contamination;
e) any law or any action taken by a government or public authority, which disturb the supply chain, including without limitation imposing an export or import restriction, quota or prohibition;
f) collapse of buildings, fire, explosion or accident;
g) breakdown of plant or essential machinery, emergency repair or maintenance, difficulty in obtaining necessary labour or raw materials, breakdown or shortage of utilities, and delay in delivery or defects in product supplied by suppliers or subcontractors;
h) any labour or trade dispute, strikes, industrial action or lockouts;
i) interruption or failure of utility service from the grid.
1.4 ENOUGH: Enough B.V., as well as any companies affiliated with Enough B.V.;
1.5 General Terms and Conditions: these general terms and conditions of sale and delivery of ENOUGH;
1.6 Laws: any laws, statute ordinances, regulations, codes or standards applicable to the Product;
1.7 Parties: ENOUGH and the Purchaser;
1.8 Product: the goods to which an Agreement concluded with the Purchaser relates, to be further specified in such Agreement;
1.9 Purchaser: any natural or legal person having entered, or wishing to enter, into negotiations and/or an Agreement with ENOUGH, as well as their successors in title.
2. APPLICABILITY
2.1. These General Terms and Conditions apply to, and form an integral part of, any Agreement, obligation and legal relationship, including but not limited to all current and future requests, offers, quotations, instructions, orders, confirmations, deliveries, collaborations, services, and legal acts between the Parties. By contracting on the basis of these General Terms and Conditions, the Purchaser agrees to the applicability thereof in respect of future agreements between the Parties.
2.2. Deviations from and/or changes and/or additions to these General Terms and Conditions can only be agreed expressly and in writing by a representative of ENOUGH, authorized to do so and apply only for the specific Agreement for which they have been made.
2.3. ENOUGH will be entitled to make amendments to these General Terms and Conditions. ENOUGH will provide the amended conditions to the Purchaser prior to the effective date of the amendments. If no effective date has been communicated, any amendments will take effect as soon as the Purchaser has been notified, or has become aware, of such amendments.
2.4. Any terms and conditions set forth in any document or documents issued by the Purchaser either before or after issuance of any document by ENOUGH setting forth or referring to these General Terms and Conditions are hereby explicitly rejected, and any such terms shall not be binding in any way on ENOUGH. Failure of ENOUGH to object to such terms and conditions used by the Purchaser shall in no event be construed as an acceptance thereof.
2.5. These General Terms and Conditions also apply for the benefit of the employees of ENOUGH and third parties involved by ENOUGH in the fulfilment of an Agreement.
4. PRICES AND PAYMENT
4.1. Unless stated otherwise, the purchase prices as listed in the Confirmations of Sale and the Agreements, and as payable by the Purchaser for the Product will be:
a) inclusive of packaging;
b) on the basis of the agreed delivery condition;
c) exclusive of import or export duties;
d) exclusive of the costs of loading and unloading and carriage;
e) exclusive of VAT;
f) stated in Euros.
4.2. ENOUGH may, without prejudice to any other rights, charge an interest of 1.5% per month from the due date until all amounts outstanding are paid in full. All costs and expenses incurred by ENOUGH with respect to collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for the Purchaser’s account. Such costs of collection will be equal to at least 15% of the amount due by the Purchaser, including the aforesaid interest, subject to a minimum of EUR 500,
4.3. Any complaint with respect to the invoice must be notified to ENOUGH within eight days after the date of invoice. Thereafter the Purchaser shall be deemed to have approved the invoice.
5. DELIVERY
5.1. ENOUGH will manufacture, pack and deliver the Product according to standard commercial practice with due regard for the requirements laid down by or pursuant to the Law and the Agreement. Each shipment will be accompanied by a packing list. Special packing or delivery instructions requested by the Purchaser must be agreed in writing, and any charges will be invoiced separately to the Purchaser.
5.2. ENOUGH will be entitled to deliver the Product in consignments (partial deliveries), which ENOUGH may invoice separately. Any complaints or other special provisions relating to other (partial) deliveries will not affect any previous or future (partial) deliveries, and will not give the Purchaser any right to refuse payment of such other (partial) deliveries.
5.3. For Any statement of a delivery period will at all times be approximate, will never be binding on ENOUGH, and will not constitute a firm deadline.
5.4. Delivery and transfer of risk of the Product takes place in accordance with delivery condition Ex Works (EXW) warehouse ENOUGH Zeebrugge, Belgium, Incoterms® 2020, unless otherwise agreed in writing between the Parties.
5.5. The Purchaser shall accept delivery of the Product within ten days after ENOUGH’s notification that the ordered Product is ready to be delivered in accordance with the agreed delivery condition. If the Purchaser fails to take delivery of Product ordered or fails to call Product within the agreed shipping windows or delivery dates, then ENOUGH may arrange, at its option, for carriage and physical delivery to the Purchaser whereby the Purchaser shall bear all risks of loss or damage to the Product from the time they have been placed at the disposal of the carrier nominated by ENOUGH, or for storing the relevant Product for the Purchaser’s risk at a location to be determined by ENOUGH. All costs related to the carriage, storage, handling, demurrage and administration of Product not accepted by the Purchaser within the agreed period shall be for the account of the Purchaser. Alternatively, ENOUGH shall be entitled to terminate the Agreement, and to sell and deliver the Product to a third party. In such case the Purchaser shall be liable for any costs and damages suffered by ENOUGH as a result of the non-acceptance by the Purchaser.
6. CONFORMITY, INSPECTION, COMPLAINTS
6.1. ENOUGH warrants that, at the time of delivery, the Product will conform to the Agreement, will be of satisfactory quality, will comply with all Laws, is properly packed and secured in such manner as to enable it to reach its destination in good condition, and will be unencumbered by rights or claims of third parties. The Purchaser acknowledges that use or processing of the Product may be subject to requirements or limitations under the Laws.
6.2. Upon delivery the Purchaser shall examine the Product and satisfy itself that the Product delivered meets all contractual requirements. Complaints about the quality of the delivered Product, as well as complaints regarding volume shortages or delivery of type of Product not specified in the Agreement shall be made in writing and must reach ENOUGH not later than three days after delivery in accordance with the agreed delivery condition and in any event before first use or processing of the Product by the Purchaser, accurately stating the nature and the basis for the complaints.
6.3. Failing such complaints, the quality and quantity specifications of the Product as stated on the waybills, transport documents, packing lists, invoices or other documents relating to the Product shall be deemed to be correct, and the Product shall be deemed to be delivered in accordance with the Agreement. Any complaints received by ENOUGH after the periods stated above shall not have any legal consequence.
6.4. If the Purchaser has lodged a complaint, it must keep the Product to which the complaint relates separate for ENOUGH, so that ENOUGH can investigate, or cause an investigation. Use or processing of the Product will lead to forfeiture of the right to lodge a complaint.
6.5. Defects regarding quantity or quality regarding (parts of) the Product do not entitle the Purchaser to reject the entire delivery of the Product. Complaints, if any, do not affect the Purchaser’s obligation to pay as per these General Terms and Conditions.
7. LIABILITY
7.1. ENOUGH's liability will be limited to that which is stated in the General Terms and Conditions.
7.2. The obligation of ENOUGH and the Purchaser’s sole and exclusive remedy hereunder, shall be limited, at ENOUGH’s option, to replacement of any non-conform Product, or refund of the purchase price of any non-conform Product. The Purchaser shall not return Product unless authorized in writing by ENOUGH. ENOUGH shall have no obligation hereunder if the Product becomes defective as a result of alteration, modification, storage, transportation or improper handling.
7.3. ENOUGH’s obligation to replace or credit shall be contingent upon receipt by ENOUGH of timely notice of any alleged non-conformance of Product and the return of Product, in accordance with these General Terms and Conditions.
7.4. Regardless of the legal grounds, ENOUGH will not be liable for consequential losses, including loss of profit, loss of sales, losses suffered and costs incurred, as well as any lost orders or lost savings, investments not recovered, late deliveries, costs of executing product recalls, loss of goodwill, damage through production or business interruptions or standstills. The cumulative liability of ENOUGH in connection with all liabilities regarding the entire legal relationship with the Purchaser will never exceed an amount equal to the purchase price of the Product which gives rise to the claim, or, for undelivered Product, the difference between the market price and ENOUGH’s purchase price. The liability limitations herein do not affect ENOUGH’s liability on the grounds of provisions of mandatory rules of law. ENOUGH will not invoke the liability limitations herein if and to the extent the Purchaser can prove intent or wilful recklessness on the part of ENOUGH and/or the supervisory employees on ENOUGH’s management.
7.5. None of the Parties will be liable to the other Party for any shortcoming in the fulfilment of its obligations, with the exception of any payment obligations (which have already come due), or any default or delay in the fulfilment of an Agreement occurring as a result of this shortcoming, in the event such may be attributed to a situation of Force Majeure. In such case, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues, without the party invoking Force Majeure being responsible or liable to the other party for any damage resulting therefrom. The party invoking Force Majeure must take all measures reasonably necessary or required in order to remedy the situation as soon as possible. If necessary, the Parties will jointly investigate the measures to be taken to mitigate the effects of Force Majeure. In the event a party wishes to invoke Force Majeure, this party must notify the other Party in writing as soon as possible, yet in any case no later than five days after the discovery of the circumstance that has resulted in Force Majeure.
8. REMEDIES
8.1. ENOUGH may dissolve all or part of an Agreement with immediate effect, without prejudice to its other legal remedies, in the event the Purchaser is in breach of fulfilling an obligation under such Agreement, unless such a breach is remedied in a timely manner within five days after the Purchaser has received the written notice from ENOUGH in which ENOUGH has notified the Purchaser of the breach in providing reasons. The determination of a term for fulfilment in the written notice from ENOUGH is not required in the event fulfilment is not possible or desirable, in ENOUGH’s opinion.
8.2. Each party may dissolve an Agreement with immediate effect in whole or in part if:
a) the other party petitions for bankruptcy or a suspension of payments or a comparable insolvency proceeding;
b) the other party is declared bankrupt or is granted a suspension of payments; and/or
c) the other party experiences an event similar to the events under (a) and/or (b) above according to the laws of the country where the other party has its headquarters or operates its business.
In the event one or more of the circumstances set out in this clause occurs with respect to a party, this party will immediately inform the other party of this in writing.
8.3. Each party may dissolve an Agreement in the event of one of the following circumstances occurs:
a) the other party enters into negotiations with one or more creditors, or takes other steps with a view to the restructuring or rescheduling of its debts;
b) all or part of the other party’s business activities are transferred, liquidated, discontinued or relocated abroad, the other party is dissolved, or in the event a decision is taken in respect of the aforementioned;
c) the other party is affected by a Force Majeure event that persists for a consecutive period of two calendar months or more; and/or
d) one or more of the confidentiality obligations as set out herein is violated by the other party.
In the event one or more of the circumstances set out in this clause occurs with respect to a party, it will immediately inform the other party of this in writing.
8.4. In the event an Agreement expires, is ended in accordance with an Agreement or is otherwise ended all claims the Parties have against each other are payable immediately;
8.5. The provisions of these conditions will apply without prejudice to any and all other rights that the Parties may have pursuant to the applicable law.
9. INTELLECTUAL PROPERTY
9.1. The Purchaser agrees not to register, or to have registered, any trademarks, trade names or symbols of ENOUGH or any name or sign which is confusingly similar to ENOUGH’s. The Purchaser will not use ENOUGH’s name or logo in any press release or other public communication, without first obtaining ENOUGH’s explicit written consent.
9.2. The Purchaser shall, as soon as it becomes aware thereof, give ENOUGH particulars of any applications to register intellectual property rights which might conflict or be confused with the intellectual property rights of ENOUGH.
9.3. If the Purchaser becomes aware that any other person or company alleges that ENOUGH’s intellectual property rights are invalid or that use of such rights infringes any rights of another party or that such rights are otherwise attacked or challenged, it shall promptly give ENOUGH particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
9.4. ENOUGH shall have the sole conduct of all proceedings relating to its intellectual property rights and shall decide what action to take in respect of any opposition, infringement or alleged infringement thereof. Either party shall, at the request of the other party, give full co-operation to that other party in any action, claim or proceedings brought, threatened or defended by any third party.
9.5. ENOUGH shall indemnify the Purchaser against any claim that a Product delivered by ENOUGH infringes an intellectual property right in the country where the Product is used, provided the Purchaser gives ENOUGH prompt notice, assistance and authority to act on behalf of the Purchaser.
10. RECALL
10.1. Each party is required to grant its cooperation with an investigation into taking appropriate product recall measures by a designated competent authority. Prior to taking such measures, the Parties will consult with one another, unless the urgent nature of the situation demands that these measures should be taken immediately. The Purchaser is also required to grant its cooperation with the product recall measures demanded by ENOUGH and to carry out the measures ENOUGH instructs in the event ENOUGH is of the opinion that there is a reasonable suspicion (a) of the presence of safety risks involving the delivered Product, or on the grounds of other circumstances which have been recorded in relevant Laws including EU directives and regulations or (b) that the delivered Product does not satisfy the applicable Laws including EC directives and regulations, or (c) ENOUGH takes this decision for reasons of its own.
10.2. The nature and degree of urgency of a product recall will be determined by ENOUGH or, depending on the case, by the designated competent authority, whereby ENOUGH is required to mitigate any damages and costs to be incurred to the extent this is reasonably possible.
10.3. As soon as the decision to carry out one or more product recall measures has been taken, the product recall will be coordinated by ENOUGH or, depending on the case, the designated competent authority. The Parties will bear the costs associated with the product recall measures in proportion to any degree of culpability on the part of the party in question.
10.4. In the event the Purchaser has knowledge of facts and circumstances that provide a reason to take one or more product recall measures, it is required to first inform ENOUGH of this.
10.5. The Purchaser is required to register the Product it has sold or processed in such a way that it can be traced to the final customer, and the date of delivery can be determined. Within the scope of its obligation to carry out the product recall measures considered desirable or necessary, the Purchaser is required to notify ENOUGH in writing of the names and addresses of the final customers and the corresponding dates of delivery. ENOUGH undertakes to use this information exclusively for the purpose of taking the product recall measures.
11. COMPLIANCE
11.1. By entering into an Agreement, the Purchaser declares to be knowledgeable in respect of the Product ordered and to be authorized, in accordance with all Laws and statutory provisions and other regulations, including those in the field of transport and environmental law, to receive the Product ordered from ENOUGH and/or the carrier, and to have such Product stored and present at the location designated by the Purchaser.
11.2. The Parties shall be responsible for arranging all permits, licences, consents and other documents that are necessary for it to satisfy its obligations under these General Terms and Conditions and the Agreement.
11.3. The Purchaser shall comply with all national and international laws on the prevention of bribery, and shall refrain from bribing or making a corrupt payment to an official for the purpose of obtaining or retaining business, directing business to any person, or securing any improper advantage.
11.4. The Purchaser shall comply with national and international laws relating to health, safety and the environment. The Purchaser is expected to ensure that adequate measures are put in place to protect the health and safety of its employees, and to mitigate the environmental impact of its business operations in as far as possible.
11.5. The Purchaser shall comply with all national and international (re-)export control laws and regulations. Prior to any resale or processing of Product the Purchaser shall in particular check and guarantee by appropriate measures that:
a) there will be no infringement of an embargo or any trade sanctions or restrictions imposed by the European Union, by the United States of America and/or by the United Nations by such resale or processing, by brokering of contracts relating to the Product or by provision of other economic resources in connection with the Product, also considering the limitations of domestic business and prohibitions of by-passing those embargos; and
b) the regulations of all applicable sanctioned party lists of the European Union and the United States of America concerning the trading with entities, persons and organizations listed therein are considered.
11.6. If required to enable authorities or ENOUGH to conduct export control checks, the Purchaser, upon request by ENOUGH, shall promptly provide all relevant information pertaining to the particular destination and the particular intended use of Product.
11.7. ENOUGH shall not be obligated to fulfil an Agreement if such fulfilment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.
11.8. The Purchaser shall at all times refrain from doing anything that might adversely influence the quality and safety of the Product, reputation of ENOUGH and/or any of the intellectual property rights of ENOUGH.
11.9. If the Purchaser fails to fulfill its obligations under this article 11, it shall indemnify and hold harmless ENOUGH from and against any and all damages, liabilities, losses, expenses, costs or claims (including without limitation reasonable attorneys’ fees) resulting therefrom.
12. CONFIDENTIALITY
12.1. Each party undertakes to refrain at all times from disclosing to a third party any confidential information regarding an Agreement or with regard to other documents or information regarding the other party’s work and affairs provided pursuant to an Agreement, or to use these for any purpose other than an Agreement or the fulfilment thereof, except (i) to the extent such is required by or pursuant to the law or by a competent authority, or (ii) to the extent such information is provided to a professional adviser in imposing on this party equivalent confidentiality obligations as set out in this article and then only to the extent such disclosure serves legitimate purposes, or (iii) to the extent the information in question is already available to the general public or will be made public on the effective date of an Agreement, or at any time thereafter, without any wrongful act on the part of any person or for which this person should reasonably have been expected to know that disclose thereof is wrongful.
12.2. ENOUGH’s confidential information is and will remain the property of ENOUGH and contains all the information, both written and oral, recorded on data carriers or otherwise, which, due to its nature, must be considered confidential, all the information which is labelled confidential by or on behalf of ENOUGH and all the other information which the Purchaser should reasonably have known ENOUGH considers confidential. Amongst other things, ENOUGH’s confidential information consists of yet is not limited to intellectual property rights, knowhow, price lists, Product specifications and contents, customer files and data and other confidential information regarding the Product.
12.3. Each party is required to impose equivalent confidentiality obligations as set out herein on employees or third parties which are engaged by the party in question and/or have been involved in the fulfilment of an Agreement and to only grant them access to that confidential information which is necessary to the execution of their respective work. The party in question is independently, directly and fully liable to the other party for every breach by the employee or contracted third party in question of the confidentiality obligations as set out herein.
13. APPLICABLE LAW AND DISPUTE SETTLEMENT
13.1. These General Terms and Conditions, Agreements, all other agreements that are concluded between the Parties and any other legal relationships between the Parties are governed by and will be interpreted on the basis of the laws of the Netherlands, whereby the provisions of the Vienna Convention on the International Sale of Goods do not apply.
13.2. All disputes arising out of or in connection with these General Terms and Conditions, Agreements, all other agreements that are concluded between the Parties and any other legal relationships between the Parties, shall be submitted to the exclusive jurisdiction of the competent court in Rotterdam, the Netherlands, without prejudice to ENOUGH’s right to submit the relevant dispute to the court which would have jurisdiction if this provision has not been incorporated in the General Terms and Conditions.
14. MISCELLANEOUS
14.1. If any term or provision of these General Terms and Conditions shall be held to be invalid or unenforceable in whole or in part, such term or provision or part shall to that extent be deemed not to form part of these General Terms and Conditions but the validity and enforceability of the remainder of these General Terms and Conditions shall not be affected.
14.2. Each claim against ENOUGH will be extinguished by the mere expiry of twelve months, commencing on the day following the one on which the claim has become due and payable, or on the day following the one on which the Purchaser became aware of the loss.
14.3. Enough and the Purchaser are independent contractors, and the relationship created between them shall not be deemed to be that of principal or agent. No sale to or obligation of either party towards a third party shall in any way bind the other party.
14.4. None of the Parties has the right to transfer an Agreement or one or more of its rights and/or obligations under an Agreement without the other party’s prior written consent. A limitation of the transferability of rights of claim has effect only under the law of obligations. ENOUGH, however, may assign, pledge, encumber or transfer an Agreement and the rights arising therefrom to another company affiliated with ENOUGH. ENOUGH may also assign any rights to payments due by the Purchaser to a third party of its choice.
14.5. Failure by ENOUGH to enforce at any time any provision of these General Terms and Conditions or an Agreement shall not be construed as a waiver of ENOUGH’s right to act or to enforce any such term or condition and ENOUGH’s rights shall not be affected by any delay, failure or omission to enforce any such provision thereof.