1. General
1.1. The following terms and conditions shall be applicable to all offers, order forms, invoices and other documents produced by NODKA and to all agreements entered into with NODKA. The present terms and conditions of sale shall be applicable to any orders placed with NODKA. The terms and conditions below are deemed to have been accepted by the customer-buyer when an order is placed. General terms and conditions from the customer-buyer presented under any name whatsoever and deviating from the present terms and conditions of sale of NODKA shall not be applicable and shall not be invoked against NODKA unless explicitly agreed upon in writing by NODKA.
1.2. In the event of a conflict between any provision of these terms and conditions of sale and any provision of an individual agreement between buyer and NODKA, the provisions of the latter shall prevail.
1.3. The invalidity, nullity or unenforceability of any provision of the present terms and conditions of sale shall not affect the validity or enforceability of any other provision of the terms and conditions.
1.4. If the present terms and conditions of sale are also drawn up in a language other than German, the German terms and conditions of sale shall prevail at all times in the event of disputes.
2. Agreement and termination
2.1. All offers shall be without engagement and not binding and the prices contained therein may be modified at any given time in accordance with currency variations and with variations in the cost of raw materials, wages, energy, etc.
2.2. With the exception of the provisions stipulated below, NODKA shall be bound only when an order is confirmed by NODKA. A binding sales agreement shall arise between NODKA and buyer through the order confirmation only. In the event that the order placed by buyer differs from the order confirmation provided by NODKA, only the order confirmation from NODKA shall be binding.
If goods can be delivered immediately from stock, NODKA shall reserve the right to renounce the above mentioned order confirmation without affecting the applicability of the remaining provisions.
2.3. If buyer fails to comply with the applicable obligations, including the obligation to pay the price due and to receive the goods, NODKA shall be entitled to dissolve the sales agreement at buyer’s expense by registered letter and without prior judicial intervention. In that case, buyer shall be obliged to pay a fixed sum for damages to NODKA of at least 25% of the total amount originally payable by buyer under the sales agreement with NODKA, without prejudice to NODKA’s right to full compensation for expenses and damages and without giving buyer the right to any damage claims.
2.4. Buyer shall be entitled to cancel a concluded agreement by registered letter addressed to the registered office of NODKA only upon explicit consent from NODKA in writing. If NODKA provides explicit consent to the cancellation in writing, then buyer shall be ipso jure liable without notice to pay a sum for damages to NODKA of at least 25% of the total amount originally payable by buyer under the sales agreement with NODKA, without prejudice to NODKA’s right to full compensation for expenses and damages and without the buyer being entitled to claim any damages.
2.5. Cancellation of a concluded agreement by NODKA shall occur by registered letter addressed to the registered office of buyer. In that case, NODKA shall only be liable to reimburse the sales price already paid. Furthermore, NODKA shall be liable to pay a fixed sum for damages equal to 5% of the sales price unless NODKA is able to demonstrate the cancellation is a necessary consequence of reasons for which NODKA cannot be held responsible and which led to the non-performance of the concluded agreement, for instance when goods are no longer available from a supplier of NODKA.
3. Delivery
3.1. Delivery times are always approximations only and are therefore not binding unless otherwise agreed by parties in writing.
Delays in delivery by NODKA shall neither lead to damages payable by NODKA nor to the dissolution of the agreement at the expense of NODKA.
3.2. The delivered goods shall remain the sole property of NODKA until NODKA receives payment of the main sum, interest and costs in full from buyer. Nevertheless, the risk shall pass on to the buyer upon delivery of the goods.
3.3. The delivery of goods shall occur at buyer’s risk at all times, and buyer shall take out insurance for possible damage claims. After the delivery of goods, buyer shall bear all risks, including the risk for loss or destruction.
3.4. If buyer fails to pick up the goods and/or receive the goods on the agreed (delivery) date, NODKA shall be entitled to charge buyer for the costs of goods storage calculated on a monthly basis with each month commenced considered as one full month, equal to 1% of the sales price of the goods for which buyer failed to take delivery and with a maximum of 10%, unless NODKA is able to demonstrate that the actual cost to store the goods exceeds this amount. Any risk of loss or damage to the goods shall nonetheless pass to the buyer.
3.5. In the event that NODKA is unable to comply with the delivery obligation due to force majeure, NODKA shall be entitled to suspend the delivery or to terminate the agreement on the matter affected by force majeure by providing a written statement and without prior judicial intervention, without the buyer being entitled to claim any damages.
Force majeure shall constitute the following, amongst others:
• trade embargos, import and export limitations of any nature;
• business failure or business interruptions of any nature;
• delayed, overdue or impossible deliveries by suppliers of NODKA or by third parties;
• any economic or other sanction impeding or affecting the delivery of goods, even if it does not make the delivery entirely impossible.
4. Warranty, Complaints and Liability.
4.1. APPARENT DEFECTS AND NON-CONFORMITY. Buyer is responsible for checking the goods upon delivery by NODKA and verifying that they are in satisfactory condition. Any complaints with regard to apparent defects and apparent non-conformities shall be submitted in writing by registered letter within eight days of receipt of the goods and prior to any handling of the goods by buyer.
In the event that the complaint submitted in time is well founded and is accepted by NODKA, the goods shall be returned by buyer for replacement only after obtaining an RMA number (Return Material Authorization reference number) from NODKA in writing. The same procedure (obtaining an RMA number) shall apply to goods that are returned for repair.
4.2. HIDDEN DEFECTS AND HIDDEN NON-CONFORMITY. Any complaints with regard to hidden defects or hidden non-conformities shall be submitted to NODKA in writing by registered letter within eight days of such defect becoming apparent and at the latest three months after delivery of the goods. Any legal claims must be instituted within a peremptory delay of three months after a complaint has been submitted in a timely fashion, after which time no legal action can be initiated.
Buyer must keep the defective goods at the disposal of NODKA.
At his own expense and within 30 days of the timely submission of the complaint, buyer shall have a report drawn up by an independent expert designated in consultation with NODKA. Prior to the inspection by the expert, buyer shall provide NODKA with an exact overview in writing of the defective goods to be inspected.
If buyer fails to comply with the obligations stipulated under article 4.2 or if the goods have been processed, modified or alienated or are no longer in the possession of buyer, then buyer shall be deemed to have renounced his claims under the hidden non-conformities or hidden defects and any complaints on the matter shall be no longer accepted.
In the event of a timely submitted and founded complaint due to hidden non-conformity or hidden defects, buyer shall only have the option to claim a reduction in price or to return the defective goods, without the buyer being entitled to claim any damages. If the goods are returned, then buyer shall first request an RMA number from NODKA in writing.
4.3. Quality requirements or quality standards of goods to be delivered by NODKA must be expressly agreed upon. The warranty obligation of NODKA shall only cover those quality provisions or quality standards expressly agreed upon and shall be limited in any case and at all times to the warranty provided by the manufacturer of the goods to be delivered. NODKA does not guarantee and shall never be deemed to guarantee or warrant that the purchased goods are suited to the purpose for which buyer wishes to use it or have it used, processed or worked (i.e. ‘the end application’ for instance), unless buyer explicitly indicated the purpose of the goods in writing and this purpose was expressly agreed upon by NODKA in writing.
4.4. NODKA's liability to buyer for any direct costs or damage caused by NODKA shall be limited at all times to the amount of the sales price of the goods sold as indicated on the invoice.
Under no circumstances shall NODKA be held liable for any indirect, special, incidental, punitive damage, consequential damage or product damage, including but not limited to transport costs, travel and accommodation expenses, costs for (dis)assembly and/or (re)installation, loss of profit, business stagnation.
4.5. Buyer shall indemnify NODKA against any and all claims based on product liability legislation.
4.6. By submitting a complaint, buyer shall by no means be exempt from his payment obligation for disputed matters.
5. Pricing and payment
5.1. With regard to orders and order confirmations quoted in foreign currency, NODKA reserves the right to invoice the amount in EUR based on the current exchange rate.
5.2. Currency variations from 3% upwards may lead to changes in price.
5.3. The invoice amount is the net amount payable. A discount for immediate payment must be agreed on in writing prior to settlement of the invoice. Any banking and discount costs shall be at the expense of buyer.
5.4. When protesting an invoice of NODKA, buyer shall draw up a written, well-founded protest and shall submit the protest within eight days of the invoice date.
5.5. If buyer fails to pay the invoice of NODKA on the due date, buyer shall be ipso jure liable without notice of default to pay a compensation of 15% of the outstanding invoice amount to NODKA, and this with a minimum of EUR 25.00 by way of damages.
Furthermore, buyer shall be ipso jure liable without notice of default to pay interest for late payment to NODKA in the amount of 1% for every month commenced.
The drawing or acceptance of a bill of exchange shall neither imply a novation of debt nor a modification of the present terms and conditions of sale of NODKA.
Expenses related to unpaid bills of exchange or cheques and/or other collection costs (e.g. lawyer’s fees and judicial costs) are not included in the amount of the abovementioned damages.
5.6. NODKA furthermore reserves the right to suspend future deliveries should buyer fail to comply with the stipulated payment terms and conditions.
6. Transportation
Unless expressly agreed otherwise in writing, any goods to be delivered by NODKA will be transported at the expense of buyer and at buyer’s risk from the moment they leave the warehouse of NODKA, irrespective of the sales agreement stipulating a FRANCO, FOB or CIF shipment term.
Any loss or damage sustained during transport of goods shall be at the expense of buyer who, in that case, shall not exercise recourse against NODKA but against the actual transporter instead.
7. Governing law and jurisdiction
Any dispute arising between parties shall be governed by Dutch domestic law with the exception of the United Nations Convention on Contracts for the International Sale of Goods drawn up in Vienna on 11 April 1980 (Vienna Convention on the Sale of Goods). All disputes between the parties shall be settled at claimant’s choice before the German courts of the legal district of Kiel or before the competent courts of the defendant's residence.
