General Sales Conditions of Imation
The following General Sales Conditions are part of and applicable to each and every agreement (“Agreement”) between Imation Europe B.V, a company incorporated and existing under the laws of the Netherlands (“Imation”), and the customer (“Customer”), on the basis of which Imation sells goods and renders services, of whatever kind, to the Customer.
1. The following General Sales Conditions are part of and applicable to all the offers and Agreements of Imation and the performance thereof, unless Imation agrees in writing that the General Sales Conditions shall not apply, in whole or in part, to an offer or Agreement.
2. Except where otherwise provided herein, any mention of “goods” shall also include “services”. References to any number of days shall mean calendar days inclusive of national holidays.
3. Imation strives for accuracy in all price lists, price quotations, brochures, order confirmations, invoices and other information provided by Imation; however, Imation shall not be responsible or liable for any misstatement, typographical error or other similar error made in good faith by Imation or a representative of Imation, which the customer knew or should have reasonably known was a misstatement, typographical error or other similar error.
4. Terms and conditions of Customer shall not apply to the Agreement unless agreed upon by Imation in writing.
5. In the event that the Agreement is executed in more than one language, the English language version shall prevail in the case of any discrepancy.
B. Offers and Agreements
1. Imation’s offers shall not bind Imation and may be revoked at any time by Imation prior to full and unconditional acceptance of such offer by Customer, unless Imation explicitly agrees that such offer is irrevocable for a certain period of time.
2. Customer and Imation will have entered into an Agreement only if Imation:
a) confirms such Agreement after receiving the order or commences with carrying out the order; or
b) if otherwise stated in these General Sales Conditions.
3. The order confirmation is deemed to correctly and completely reflect the Agreement subject to Article A.3.and Article C, unless Customer provides written objection to Imation regarding such order confirmation within seven (7) days of the order confirmation.
4. Any subsequent supplementary Agreements or alterations shall bind Imation only if these have been confirmed by Imation in writing.
5. For deliveries or services for which no written offers or order confirmations are sent, the invoice for such deliveries and services will be considered as an order confirmation that, subject to Article A.3., is also deemed to correctly and completely reflect the Agreement.
1. Unless Imation otherwise agrees in writing, all prices are quoted subject to price changes.
2. Unless Imation otherwise agrees in writing, all prices are exclusive of V.A.T. sales tax or any other levies imposed by the authorities.
3. Unless Imation otherwise agrees in writing, the price for ordered goods shall be the price mentioned in the Imation price list in effect at that time.
4. Imation may change prices at any time and will endeavour to provide Customer with reasonable notice (usually 30 days but this may vary per product) of any price increase however prices do remain subject to change without notice. All such price increases will not affect any order properly placed with Imation and shipped by Imation before the effective date of the change.
5. Unless Imation otherwise agrees in writing, any mounting or installation work will always be for Customer’s account.
1. Delivery terms will be agreed upon, in writing, on a customer-by-customer basis in conformity with the Inco terms, as published by the International Chamber of Commerce and in force on the date the Agreement was concluded.
2. The delivery term shall take effect on the date when the Agreement has been concluded. If prepayment or a down payment has been stipulated, then the delivery term shall not take effect until the receipt of the complete down payment or prepayment.
3. Customer shall promptly inspect delivered goods and shall notify Imation within fourteen (14) days of delivery of any nonconformance of or damage to the delivered goods. Failure of Customer to promptly notify Imation of any nonconformance of or damage to the delivered goods shall be a waiver of Customer’s rights in this respect.
4. Imation may deliver by installments and invoice separately for each installment, which invoices Customer must pay in accordance with Article J.
5. Unless Imation agrees otherwise in writing, indicated delivery times shall not be considered as a deadline but as an approximate date of delivery. The non-observance of the delivery date by Imation cannot be invoked by Customer to enter a claim for damages, interests or cancellation of the Agreement or the order unless Imation has agreed to deliver the goods on a specific delivery date.
6. Customer shall take delivery of the goods in accordance with the agreed upon Inco term. If Customer fails to take receipt of the goods when such goods are presented for delivery by Imation or a representative of Imation, then the goods will be stored (for Customer’s account and risk) while being available to Customer, notwithstanding the right of Imation to claim damages or cancel the Agreement. After a period of four (4) weeks, Imation may sell these goods in a manner it deems appropriate. Any deficiency between the proceeds of such sale, less additional costs related to such sale, and the amount due from Customer under the Agreement will be for Customer’s account and risk without prejudice to Imation’s rights.
E. Transport/ Risk of Loss
1. If Customer has not provided Imation with any specific instructions, the manner of transportation, forwarding, packaging and the like will be determined by Imation. Any specific instruction of Customer concerning the manner of transportation, forwarding, packaging and the like will only be used by Imation if Customer confirms that Customer will bear any additional costs thereof.
2. Risk with respect to all goods supplied to the Customer, shall pass to Customer upon delivery.
F. Force Majeure
1. Neither party shall be liable to the other for its failure to perform any of its obligations under the Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to fire, flood, war, embargo, strike, act of God, inability to secure materials and transportation facilities, continued default on the part of suppliers, or the intervention of any governmental authority, in each case not otherwise invoking a breach of the Agreement.
2. If a party’s performance is delayed as described under Article F.1. for more than sixty (60) days the other party may terminate the Agreement immediately upon written notice.
G. Warranty & Liability
1. Imation warrants that its goods (excluding data recorded on it) are free from defects in material and workmanship at the time of delivery. Individual products may have additional or different warranties as stated on the product packaging, package inserts, price pages or literature.
2. Unless otherwise specified in writing by Imation, if within ninety (90) calendar days from the date of delivery or the applicable warranty period, Imation is notified by Customer of goods that are found to be defective in material or workmanship, Imation’s entire liability shall be limited to, at Imation’s option, either:
b) replacement of the defective good(s), or
c) refund of the purchase price of each defective good
within a reasonable time after Imation’s receipt of written notification of the defect and the returning of the defective good to Imation provided that the defective product is returned to Imation with a Return Material Authorisation (RMA) number (which must be obtained from Imation before any return).
3. With respect to services rendered by Imation, Imation’s entire liability shall be restricted to, at Imation’s option, either:
a) re-perform or correct any services that fail to conform to the Agreement due solely to errors by Imation, or
b) refund the price paid for such non-conforming services that are due solely to such errors.
Notice of non-conformity of services must be received by Imation in writing within thirty (30) days after the date that the services have been rendered.
Imation shall not be responsible in any manner for any non-conforming services that are caused in part or in whole by inaccurate input data supplied by the Customer.
4. This warranty does not apply to failure of the goods resulting from Customer’s misuse, abuse, neglect or mishandling, improper adjustments, incorrect environments, or normal wear from ordinary use.
5. Nothing in this Agreement shall operate so as to exclude or limit the liability of either party to the other any liability which cannot be excluded or limited by law.
6. Imation shall not under any circumstances be liable for:
(1) any direct damages in excess of 50% of the total of the amounts invoiced, excluding vat or sales tax, by Imation and paid by Customer under the Agreement, (in the event that the Agreement is a long-term agreement, the amount of direct damages to be paid by Imation shall not exceed fifty per cent (50%) of the amount invoiced, excluding vat or sales tax, by Imation to Customer in the then current year of the Agreement.) The amounts and prices referred to in this subsection shall be reduced by any credit amounts requested by Customer and granted by Imation; or
(2) any indirect, incidental, special or consequential loss/or damages (including, but not limited to, loss of profits, revenue or business);
in any way related to goods, Customer's purchase orders or the Agreement. The above exclusions apply regardless of whether such damages are sought based on breach of warranty, breach of contract, negligence, strict liability, in tort, or any other legal theory. The above exclusions do not apply to claims for personal injury by a third party.
7. Clauses G 5 and 6 above shall survive and shall not be rendered ineffective by the termination or expiry of the Agreement for any reason whatsoever. The parties acknowledge that Clauses 5 and 6 above are essential and that Imation would not sell to the Customer if they were not included.
8. As a pre-condition to the existence of any right to damages, Customer must notify Imation in writing as quickly as reasonably possible of the occurrence or vesting of such right.
1. Without prejudice to other provisions in these General Sales Conditions, all complaints shall be lodged with Imation in writing within thirty (30) days after delivery of goods or after rendering of services. Any complaint(s) must accurately describe the nature and the grounds for the complaint(s). For invoices, a term of ten (10) days after the invoice date shall apply.
2. After the expiry of the above terms, the Customer is deemed to have accepted the delivered goods or the invoice as the case may be. Any complaints after the expiry of the above terms will not be handled by Imation.
3. Pending any investigation to be carried out by Imation, the Customer shall store the goods or, if Imation should request, return such goods to Imation. The goods shall be stored or transported at the Customer’s risk unless agreed otherwise by Imation in writing.
I. Retention of Title
1. Customer will not receive title to any good until Customer has paid, in full, the purchase price and all other related charges with respect to such good. If Imation performs any services for Customer that are related to goods delivered to Customer, then Customer shall not receive title to the good(s) until Customer has also paid for the services rendered in full.
2. As long as legal title has not been transferred to Customer, Customer is prohibited from granting to a third party any security or other interest in the goods, except to the extent that the sale or transfer of the goods is conducted in the normal course of business.
3. If Customer should fail to fulfill his payment obligations towards Imation, or if Imation reasonably fears that Customer will fail to fulfill such obligations, Imation shall be entitled (and irrevocably authorized by Customer) to repossess the delivered goods subject to retention of title. After repossession, Customer will be credited for the market value of the repossessed goods, which will not, at any rate, be higher than the original purchase price, less any costs involved in the repossession.
J. Payment by the Customer
1. Payment for the goods shall be effected within thirty (30) days after date of invoice in net cash, or by a transfer to a bank or giro account (without any deduction, set-off, or settlement of debt) or by any other method of payment indicated by Imation. The date of actual cash payment or the date of payment indicated in Imation’s bank or giro statements shall be considered as the payment date of the applicable invoice. Customer is not entitled to set-off.
2. Any payments effected by Customer shall always first serve to settle any interest and costs payable, and then the oldest invoices outstanding even if Customer claims that the payment relates to a later invoice.
K. Default by Customer
Notwithstanding Imation’s rights arising under the Agreement, or arising from law, Imation is at any time entitled to consider the Agreement to be dissolved, without the need for declaring Customer in default or the need for any judicial intervention, or to suspend its obligations or to fully demand any amount payable by Customer and to repossess or cause to be repossessed anything that has been delivered but not yet been paid for:
a) if Customer is declared bankrupt or initiates bankruptcy proceedings; cedes its property; applies for or is granted a moratorium of payment; or loses a considerable portion of his property by seizure or forfeiture;
b) if Customer should decease or be placed under legal restraint;
c) if Customer does not perform any of its material obligations arising under the Agreement, or arising from law;
d) if Customer should cease or transfer his business or a considerable part thereof including contributing his business towards a company to be formed or already existing, or should change the purpose of his business.
L. Interest and Costs
1. If payment has not been effected within the terms as set forth in Article J.1., then Customer is legally in default and owes interest in the amount of 1.5% of the outstanding amount per month (or part thereof) as from the due date or the maximum rate allowed by law, whichever is less.
2. In the event that Customer fails to comply with any obligation under the Agreement, Customer shall, in addition to any other remedy sought, be required to pay all collection costs, including legal fees and expenses for internal and external advise, which collection costs shall be deemed to be equal to at least fifteen percent (15%) of the outstanding invoice amount. Customer shall pay the actual collection costs in the event such actual collection costs are higher than fifteen percent (15%) of the outstanding invoice amount.
Customer shall indemnify Imation for any damage Imation may suffer as a result of the claims of third parties that pertain to goods or services delivered by Imation, including, but not limited to:
a) claims of third parties or employees of Imation pertaining to damages suffered in the performance of the Agreement that are a result of the misfeasance or nonfeasance of Customer or of unsafe conditions in its company;
b) claims of third parties or employees of Imation suffering damages that are the result of a defect in goods or services delivered by Imation which Customer has used, modified or resold with additions or in connection with the goods or services of Customer, unless Customer proves that such defect is not a result of the aforesaid use, modification or re-sale.
N. Intellectual property rights
1. Imation is entitled to all intellectual property rights related to Imation’s goods, by ownership or by license, and nothing in the Agreement or under these General Sales Conditions may be construed as the granting of a license to the Customer under any intellectual property right, directly or indirectly.
2. Without the prior written approval of Imation, the Customer shall not modify or alter the goods or their packaging and shall not add its own trademarks or trade names or make other modifications to Imation’s packaging or goods or otherwise infringe or harm Imation’s intellectual property rights.
1. Customer shall not assign or delegate its rights or delegate this Agreement or any of its rights or duties under this Agreement without Imation’s prior written consent, which consent shall not be unreasonably withheld.
2. If any article, term, provision or clause in this Agreement is found or held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement shall be valid and enforceable and Imation and Customer shall negotiate in good faith, a substitute, valid and enforceable provision that most nearly reflects the original intent of Imation and Customer in entering into this Agreement.
3. All Imation’s offers and agreements, and the performance thereof, and any questions, claims, disputes or litigation concerning or arising from the Agreement, shall be governed and construed in accordance with and subject to the laws of the Netherlands, excluding the International Convention on the Sale of Goods.
4. With respect to the interpretation of international commercial terms, the latest confirmed “Inco terms” as prepared by the International Chamber of Commerce in Paris (I.C.C.) shall apply.
5. All disputes that might arise between Customer and Imation shall be settled by the District Court of Amsterdam. Imation and Customer may agree to have their dispute settled by alternative dispute resolution (such as binding arbitration, mediation, etc.).