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General terms and conditions of sales and delivery of ACTRONICS

1. Applicability

1.1 These terms and conditions apply to all offers, all contracts (of sale/purchase and the execution of work, such as mounting, maintenance and/or repair/remanufacturing work) and deliveries of ACTRONICS B.V. having its registered office in Almelo, the Netherlands, registered with the Chamber of Commerce under number 08173851, hereafter called ''ACTRONICS'', including when third parties must be involved in the execution thereof.

1.2 Any deviations from these general terms and conditions are only valid if they have been explicitly agreed in writing.

1.3 The applicability of any general terms and conditions, howsoever called, of the customer is explicitly rejected.

1.4 If one or more of the provisions in these general terms and conditions are invalid or are voided, the other provisions of these general terms and conditions will remain in full effect. ACTRONICS and the customer will in such case enter into consultation in order to agree new provisions to replace the invalid or voided provisions, whereby if and in so far as possible the objective and the purport of the original provision will be taken into account.

2. Provisions

2.1 In the general terms and conditions ''written/in writing'' means: by letter, by e-mail, or any other form of communication which can be deemed equivalent thereto with an eye on the state of the art and commonly accepted views.

2.2 In these general terms and conditions ''goods'' means: all products to be sold by, services to be provided by, service and remanufacturing activities to be executed by, and parts and other materials to be delivered by ACTRONICS.

3. Offers/contracts

3.1 All offers of ACTRONICS are without commitment and ACTRONICS explicitly reserves the right to change the prices, in particular, if such is necessary on the basis of (statutory) regulations. The current price is determined upon the moment the invoice is made.

3.2 A contract will only be made by an offer (assignment) and the acceptance thereof. ACTRONICS has the right to revoke an offer immediately after receipt of the acceptance.

3.3 ACTRONICS is entitled to refuse assignments or to make the execution of the assignments subject to specific conditions, unless explicitly otherwise stipulated.

3.4 Quotes, offers and/or discounts do not apply automatically to future assignments.

4. Prices

4.1 All price specifications are purely indicative.

4.2 The prices stated for the offered products and/or services are in euros exclusive of VAT, shipping costs, deposits and any taxes and/or other levies, unless otherwise stated or agreed in writing.

4.3 Unless otherwise stipulated, all specified prices are based on delivery EX WORKS Incoterms 2010, ACTRONICS BV in Almelo, the Netherlands.

4.4 Price changes as a result of, e.g., changes in legislation, taxes, excise duty, factory and/or import prices and/or exchange rates may be passed on in the agreed price at any time.

4.5 ACTRONICS has the right to increase an agreed price or fee if during the performance of the contract it turns out that the agreed or expected quantity of work / costs is/are at risk of being overrun by more than 20%. This applies in the event of the parties' failure to estimate properly, without this being attributable to ACTRONICS, and it cannot reasonably be demanded of ACTRONICS to execute the work for the agreed payment.

5 Payments

5.1 Unless the parties have explicitly agreed otherwise in writing, payment of the total agreed price must be made by the customer without set-off, prior to delivery, or cash on delivery. Delivery includes the execution of work and or the provision of services.

5.2 If payment is not made in cash, payment must in any event be made within fourteen (14) days after the invoice date, on a bank account specified by ACTRONICS in the currency of the invoice, without any discount or claim of set-off. Objections to the amount of the invoice will not suspend the payment obligation.

5.3 If an invoice has not been paid in full after the expiry of the term referred to in paragraph 2, ACTRONICS is entitled to charge the statutory commercial interest (Article 6:199a Dutch Civil Code) and the customer will, after having been sent a payment reminder by ACTRONICS, owe the costs connected with taking judicial and extrajudicial debt collection and/or enforcement measures (including the costs of any bankruptcy petition) with a minimum of € 500.00.

5.4 If the customer defaults on any payment, ACTRONICS is entitled, without further notice of default or judicial intervention, to suspend the performance of the relevant contracts in whole or in part until the payment has been made or proper security has been given therefore, or to terminate the relevant contracts in whole or in part, whether or not in combination with a compensation claim.

5.5 In the event of liquidation, bankruptcy, attachment or moratorium on payment of the customer, ACTRONICS' claims on the customer will be immediately due.

5.6 ACTRONICS uses Adyen's payment services for all online payments.

5.7 The client can use our secure checkout pages for payment by credit or debit card. The amount is settled when the client places an order and receives a confirmation.

6. Delivery

6.1 The customer is subject to a purchase obligation, unless ACTRONICS has no reasonable interest in this respect.

6.2 The risk in the goods sold passes at the time that the goods are ready for delivery or shipment.

6.3 Transport of products from and to the customer is fully at the customer's expense and risk.

6.4 Delivery dates will be determined by ACTRONICS in consultation and are best estimates. Time is never to be deemed of the essence with regard to delivery dates. The delivery time starts upon the verbal and/or written order confirmation.

6.5 If it turns out not to be possible to deliver the goods sold to the customer and/or to execute the activities charged to ACTRONICS, ACTRONICS reserves the right to store the goods which must be delivered and/or which have been acquired for the execution of the work, at the customer's expense.

6.6 If after delivery of the goods and/or after execution of the work charged to ACTRONICS and notification thereof to the customer the relevant goods (offered for remanufacturing or repair) have not been retrieved within seven (7) days after the latter date, ACTRONICS is entitled to charge storage fees in conformity with the ACTRONICS or locally applicable rate. For a period of thirty (30) days after the expiry of this term, ACTRONICS is entitled to deliver the goods to a third party or to destroy them. The foregoing is without prejudice to the customer's obligation to pay the agreed price.

6.7 In the event of late delivery ACTRONICS is not liable for loss suffered by the customer due to late delivery, unless the customer has given ACTRONICS written notice of default, whereby the customer must give ACTRONICS a term of at least ten (10) working days to perform its obligations.

6.8 In the event of loss or failure of the delivery ACTRONICS is only liable for a maximum amount of the original invoice amount of ACTRONICS in relation to that shipment.

6.9 Replaced materials or goods will only be made available to the customer if such has been explicitly agreed in writing in the remanufacturing/repair assignment. In the other case, these goods/materials will become the property of ACTRONICS, without the customer being able to claim any compensation in this respect.

7. Return parts

7.1 All (replacement) stock products are delivered by ACTRONICS on an exchange basis as standard, unless otherwise agreed.

7.2 Exchange parts will only be sold on the basis that the old item is returned. The old item must be of the same make, building type and composition and may not be broken, torn, welded or in any other way damaged or incomplete. It must be possible to remanufacture the vital parts in a normal manner. If the delivered goods do not suffice, the higher costs will be charged to the customer and there will be a retrospective settlement.

7.3 On the invoice an amount will be charged per sold product as a deposit fee for the product to be replaced. This deposit fee will be repaid on the customer's account if the exchange product is received within four (4) weeks in its entirety, accompanied by the original invoice and return form.

7.4 If after four (4) weeks the return product has not been received by ACTRONICS in accordance with the requirements in paragraph 2 of this article, ACTRONICS is no longer obliged to repay the deposit fee to the customer.

7.5 All parts must be returned in the original packing of the newly received part and must be shipped with the ACTRONICS return form. As soon as the old part is replaced, the deposit fee will be paid within fourteen (14) days.

7.6 The exchange goods which ACTRONICS sells to the customer will be packed in a standardised manner. Where relevant, packing will be used for which a deposit fee must be paid. Such packing is always made available to the customer on a loan-for-use basis. Packing remains the property of ACTRONICS. The customer must return the packing to ACTRONICS in good condition and in its entirety.

7.7 If the customer has not returned the packing material within four (4) weeks after the purchase of the exchange product, ACTRONICS is no longer obliged to return the deposit fee charged to the customer for the packing. This is without prejudice to the customer's obligation to return the packing.

8. Guarantee

8.1 ACTRONICS gives a 2-year guarantee on all remanufactures executed unless otherwise agreed prior to sale. ACTRONICS gives a 1-year guarantee on all mass air flow meter remanufactures. The original purchase invoice serves as proof of guarantee in this respect. Mounting and dismantling costs are not covered by the guarantee.

8.2 A claim can only be made under the guarantee if the agreed price has been paid in full.

8.3 Upon delivery the customer is obliged to inspect whether the goods correspond with the contract. If this is not the case, ACTRONICS must be notified thereof in writing and with reasons as soon as possible and in any event within seven (7) days after the delivery, or after a notification was reasonably possible. In the event of lack of such notice the goods are deemed to correspond with the contract and the activities are deemed to have been executed in conformity with the contract.

8.4 A notice such as that referred to in paragraph 3 of this article will not suspend the customer's payment obligation.

8.5 The customer must enable ACTRONICS to investigate the complaint and must furnish ACTRONICS with all relevant information therefor. If return shipment of the goods is necessary in this respect, such will take place at the customer's expense, unless the complaint turns out afterwards to be valid. The customer always bears the transport risk.

8.6 In order to make a claim under the guarantee, the guarantee seals must be unbroken. If one or more guarantee seals are broken, the right to make a claim under the guarantee will lapse.

8.7 Products which are presented under the guarantee, must be delivered properly packed, at least with protection in the box. Failure to do so will result in the guarantee claim not being taken into consideration.

8.8 If it has been demonstrated that the products do not correspond with the contract, ACTRONICS has the choice to replace the relevant products, which must be returned, with new products or to repay the invoice value thereof, whereby the customer must give ACTRONICS a term of at least ten (10) working days to perform its obligations.

8.9 The costs of repair, rectification, replacements and executing processing again are at ACTRONICS' expense up to a maximum of the amount invoiced by ACTRONICS during the entire guarantee period.

8.10 Claims under the guarantee lapse if third parties have executed activities without the prior knowledge or consent of ACTRONICS which are connected with the activities executed by ACTRONICS in respect of which a claim is made on the guarantee.

8.11 The delivery of new goods upon remanufacturing, and thus not upon the delivery of remanufactured goods upon remanufacturing, is covered by a guarantee in so far as a guarantee is given by the manufacturer. Parts which ACTRONICS acquires from third parties or activities which are executed by third parties on its instruction, are not covered by any other guarantee than that which ACTRONICS has been given by said third party.

8.12 The guarantee will only be furnished to the customer and thus explicitly does not apply to any legal successors. The original guarantee term will not be extended in the event of replacement of goods.

8.13 The guarantee does not extend to the compensation of loss on the part of persons and/or goods – whether or not third parties – as a result of goods or parts thereof breaking or becoming defective or the compensation of any further costs whatsoever, which might arise for the customer as a result hereof.

9. Retention of title

9.1 All goods sold and delivered (including parts and materials used on behalf of a customer) remain the property of ACTRONICS as long as the customer has not paid everything he owes under the purchase contract in full and thus until all claims of ACTRONICS on the customer have been paid, including the payment of the agreed price, any compensation, interest and debt recovery costs. If in the context of the sale ACTRONICS has carried out work on behalf of the customer to be paid by the customer, the retention of title applies until the customer has paid the claim relating thereto in full.

9.2 The customer is not entitled to pledge the goods covered by the retention of title nor to encumber such in any other way; granting a pledge on such goods which will be deemed default on the part of the customer.

9.3 If third parties attach the goods delivered subject to retention of title or wish to grant rights thereon or enforce rights in respect thereof, the customer is obliged to inform ACTRONICS thereof as quickly as can reasonably be expected.

9.4 In the event that ACTRONICS wishes to exercise the property rights specified in this article, the customer hereby gives unconditional and irrevocable consent to ACTRONICS or third parties designated by ACTRONICS to enter all those places where ACTRONICS' goods are located and to retrieve said goods.

9.5 In the event of repair/remanufacturing activities, ACTRONICS can exercise the right of retention in respect of the goods if and for as long as:

• the customer does not pay the costs of the activities relating to the goods or does not pay said costs in full;
• the customer does not pay the costs of earlier activities executed by ACTRONICS in respect of the same goods or does not pay said costs in full;
• the customer does not pay other claims (including as compensation for loss, interest and costs) ensuing from the contractual relationship with ACTRONICS or does not pay such in full.

10. Liability

10.1 ACTRONICS does not accept any liability for acts and/or omissions of ACTRONICS, its personnel members and/or third parties engaged by it, during or outside of working hours, unless there was intent, wilful misconduct or gross negligence.

10.2 For loss from or in connection with deliveries for which ACTRONICS can be held legally liable, in so far as provisions of mandatory law do not entail otherwise, ACTRONICS' liability must not exceed the invoice amount.

10.3 Loss, in so far as it consists of lost profit or reduced proceeds and all other indirect loss or consequential loss, like trade loss, extra costs for replacement transport or any compensation or penalty which the customer owes third parties, is in no case eligible for compensation, unless the contrary is stipulated in provisions of mandatory law.

10.4 ACTRONICS shall be provided with all desired cooperation in the investigation of the cause, nature and scope of the loss for which compensation is claimed, whereby failure to comply is subject to loss of the right to compensation.

10.5 The contracting party must take all measures which are necessary to prevent or limit the loss.

10.6 The contracting party must inform ACTRONICS at latest within three (3) months after he has become familiar with or could have become familiar with the loss suffered by him, of such loss in writing and must state the reasons therefore.

10.7 ACTRONICS is not liable and the customer cannot base any claim on any guarantee that might apply, if the loss has arisen:

• due to inexpert use and/or use which is contrary to the use of the goods and/or the instructions, advice, instructions for use, etc. given by or on behalf of ACTRONICS;
• due to inexpert storage or maintenance of the goods;
• due to errors or incompleteness in the information provided to ACTRONICS by or on behalf of the customer;
• due to errors or incompleteness in the instructions given by or on behalf of the customer;
• as a result of the choice of the customer which deviates from what ACTRONICS advised and/or what is common;
• because repairs or other work or processing has been carried out on the goods by or on behalf of the customer, without ACTRONICS' explicit prior consent.

10.8 In the cases listed in the preceding paragraph the customer is fully liable for all loss ensuing therefrom and explicitly indemnifies ACTRONICS against all claims of third parties for compensation of this loss.

10.9 The customer must use the delivered product in accordance with the nature and use and in accordance with all statutory use instructions and use regulations, advice and instructions prescribed by ACTRONICS. Mounting and dismounting of the goods may only be carried out by professional, qualified persons.

10.10 If the customer does not use the delivered product in accordance with the provisions of paragraph 9 of this article and the customer holds ACTRONICS liable for loss suffered in connection with the use of the delivered product, the customer must prove that loss is the result of a defect in the product delivered by ACTRONICS and not of the use in accordance with paragraph 10.9 of this article.

11. Force majeure

11.1 If ACTRONICS fails in whole or in part in the performance of its obligations to the customer, such failure cannot be held against ACTRONICS if performance of the contract is made difficult or impossible for ACTRONICS by a circumstance – foreseeable or otherwise – which is beyond the control of ACTRONICS, such as, but not limited to: - failure on the part of suppliers/transporters; - war, riot or similar situations; - sabotage, boycott, strike or occupation; - machine damage; - theft from the storerooms; - disruptions in business operations; - government measures; - bad weather; - lightning strike; - fire.

11.2 If a situation occurs as referred to in paragraph 1 of this article, in so far as the law permits such, ACTRONICS is not liable for any loss ensuing therefrom for the customer and ACTRONICS can at its own election suspend the performance of its obligations or terminate the contract without judicial intervention in whole or in part without being bound to pay any compensation.

12. Personal data

12.1 The personal data of the customer which he or she passes on to ACTRONICS can be processed by ACTRONICS in accordance with the Dutch Data Protection Act (GDRP). On the basis of this data is processed for:

• orders for services and their implementation;
• creditworthiness checks to combat fraud and non-payment;
• billing;
• management of Information provided by the customer for the purpose of fulfilling warranty obligations;
• processing the questions asked by the customer;
• fraud prevention;
• marketing research;
• the management of data related to the customer;
• (direct) marketing purposes; and the use of cookies;
• to make new offers to the client;
• further development and optimization of its services.

12.2 In addition, the personal data may be made available to third parties, for example for direct mailing activities, or displaying it on the ACTRONICS Service Partner locator on the ACTRONICS website. Any objection to be lodged by the client with ACTRONICS against processing that falls under the aforementioned GDRP for direct mailing will be honoured.

13. Miscellaneous

13.1 ACTRONICS can never give a 100% assurance regarding a correct diagnosis of the problem with repair/remanufacturing activities of a product. Not all problems will be repeated in the time that ACTRONICS examines the problem, not all external influences like vibrations and weather circumstances can be simulated.

13.2 If a product is offered for remanufacture/repair and after extensive diagnosis no mistake or defect is noted, ACTRONICS will charge the customer € 55.00 for test and administration costs. Here too a 100% assurance is not possible (see 13.1).

13.3 If a product is offered for remanufacture/repair and does not fall within the ACTRONICS product range, unless explicitly otherwise agreed in writing in advance, it will be returned without further diagnosis and without testing, and the submitter will be charged € 25.00 as a handling fee.

14. Cancellations

14.1 Cancellation by the customer is only possible in so far as ACTRONICS agrees to such.

14.2 In the event of cancellation, the shipping costs are at the customer's expense, as well as a fee for the administration costs of 10% of the purchase amount with a minimum of € 30.00.

15. Authentic language

15.1 Even when these general terms and conditions of sale and delivery are furnished in a language other than Dutch, in the event of doubt the Dutch version of these terms and conditions will be decisive.

16. Choice of law and forum

16.1 Any contract and any dispute between ACTRONICS and the customer is governed by Dutch law, unless ACTRONICS explicitly opts for the law of the country where the customer is based, in so far as such does not contradict and is not contrary to European and International law.

16.2 The applicability of the Vienna Sales Convention is explicitly excluded. This is in so far as any law or treaty text does not exclude this choice of law.

16.3 The court in the district where ACTRONICS is based has exclusive jurisdiction.