1.                QUOTATION, CONFIRMATION OR AGREEMENT

These terms and conditions relating to commercial sales transactions of OneAppliance Netherlands B.V. (the "General Terms and Conditions of Delivery") apply to and form an integral part of all quotations and offers made by Philips Domestic Appliances Netherland B.V.

("OneAppliance"), of any acceptance, confirmation and ratification by OneAppliance of orders placed by the buyer ("Buyer") and of all agreements ("Agreements") concerning the sale by OneAppliance and the purchase by the Buyer of goods and/or services ("Products"), unless and to the extent expressly agreed otherwise in writing with OneAppliance.

Any conditions and stipulations mentioned in any document or documents issued by the Buyer before or after OneAppliance has issued any document setting out these General Terms and Conditions of Delivery or in accordance with these General Terms and Conditions of Delivery.

Terms and Conditions of Delivery are hereby expressly rejected and set aside by OneAppliance and the relevant terms and conditions do not apply at all to any sale to the Buyer by OneAppliance and are in no way binding on OneAppliance.

Quotations issued by OneAppliance may be accepted within the period specified in the quotation by OneAppliance or, if no period is specified, within thirty (30) days after the date of the quotation, but any quotation may be withdrawn or revoked by OneAppliance at any time before receipt of the notice of acceptance of the relevant quotation by the Buyer.

2.              PRICE

The prices stated in an offer, confirmation or Agreement are in Euros and are exclusive of any taxes, duties or similar levies that are now or at any future time applicable to the Products or other charges under the law. OneAppliance will increase the sale price by taxes, duties or similar levies if OneAppliance is required by law or has the ability to remit or collect them and the Buyer will pay them together with the price.

3.           PAYMENT

3.1 Unless otherwise agreed in writing between OneAppliance and the Buyer, OneAppliance may charge the Buyer the price of the Products delivered after delivery of the Products in accordance with the applicable INCOTERMS. Net payment is due within thirty (30) days of the invoice date, unless otherwise agreed in writing between OneAppliance and the Buyer. All payments must be transferred to the specified Philips address. If delivery is made in instalments, each instalment can be charged separately and must be paid on the due date. No discount will be granted for early payment unless OneAppliance has agreed to such a discount in writing. In addition to any other legal rights and remedies that OneAppliance may have under applicable law, to the extent permitted by law, interest will be charged on all overdue payments at the rate of eighteen percent (18%) per annum or at the applicable statutory interest rate from the due date until the date of full payment, whichever is higher.

3.2 All deliveries of Products to which OneAppliance has agreed are at all times subject to the determination of the required creditworthiness of the Buyer by Philips. If, in the opinion of OneAppliance, the financial situation of the Buyer at any time is such that it is not justified to proceed with the production or delivery of Products on the basis of the above-mentioned payment terms, OneAppliance may stipulate full or partial payment in advance or other payment terms as a condition for delivery and OneAppliance may proceed to suspension,  postponement or termination of credit, delivery or any other act or transaction on the part of OneAppliance within the framework of the Agreement. 

3.3 If the Buyer is in default with the payment of any costs or charges due, or is otherwise in default, OneAppliance has the right to refuse execution of the Agreement and/or delivery of Products until the Buyer has paid the amounts due and OneAppliance may suspend, postpone or terminate credit,  delivery or any other act or transaction on the part of OneAppliance within the framework of the Agreement. This right shall be in addition to and not in lieu of any other rights and remedies which may be valid or available under the Agreement or the law.

4.                 DELIVERY AND QUANTITIES

4.1 Products are delivered ex-works (INCOTERMS, most recent version) from the production location of OneAppliance or another location as indicated by Philips, unless otherwise agreed in writing. Delivery dates given or confirmed by OneAppliance are only approximate and OneAppliance cannot be held liable for them, nor can they be deemed to be in default of the fulfilment of its obligations towards the Buyer, if a delivery takes place within a reasonable time before or after the specified delivery date. OneAppliance undertakes to make every effort within commercially reasonable limits to comply with the delivery dates specified or confirmed by it, provided that the Buyer provides all necessary order and delivery details within a reasonable period of time before the relevant delivery date.

4.2 The Buyer must inform OneAppliance in writing if delivery has not taken place and must grant OneAppliance a period of thirty (30) days to remedy the default. If OneAppliance does not deliver within this period of thirty (30) days, the Buyer has as its sole and exclusive remedy the possibility to dissolve the relevant unexecuted parts of the Agreement.

4.3 Title to the Products shall pass to the Buyer upon full payment of the purchase price, including any interest and/or costs relating thereto, and (to the extent otherwise prohibited by applicable law) full payment for any other Products ordered by the Buyer and/or the payment of any claim relating to or arising out of the

Agreement. Until the ownership of the Products has passed to the Buyer, the Buyer may not modify, transfer or pledge the Products to a third party or grant or transfer any right or title in the Products to a third party, except to the extent that the latter is in the ordinary course of business. The Buyer must ensure that the Products remain identifiable as Products obtained from OneAppliance. The Buyer shall at all times provide OneAppliance (or its representative) with free access to the location where the Buyer has stored the Products. Should the Buyer be

fail to comply with payment obligations towards OneAppliance or give reason to believe that it will not meet its payment obligations in whole or in part, then the Buyer is obliged, at OneAppliance's request, to return to OneAppliance at its own expense those Products of which ownership has not yet been transferred and the Buyer undertakes to cooperate fully with OneAppliance to enable OneAppliance (or its representative) to collect its Products. The risk of loss associated with the Products shall pass to the Buyer upon delivery by OneAppliance in accordance with the applicable INCOTERMS.

4.4 If the Buyer does not take delivery of the Products ordered, OneAppliance may deliver the Products on consignment at the Buyer's expense.

4.5 If OneAppliance's production is limited for any reason, OneAppliance has the right to distribute the available production and Products among its customer base at its sole discretion and this may lead, depending on the given situation, to fewer Products being sold and delivered to the Buyer than stipulated in the Agreement,   without OneAppliance being responsible or liable to the Buyer for any resulting damage. 

5.          FORCE MAJEURE

OneAppliance shall not be liable for any default or delay in the performance of an Agreement if (i) the default or delay is due to interruptions in the production process of the Products, or (ii) the default or delay is due to Force Majeure as defined in the following and/or in the law or jurisprudence.

If such a default or delay occurs, the performance of the relevant part(s) of the Agreement will be suspended for as long as the relevant default continues, but OneAppliance will not be responsible or liable to the Buyer for any resulting damages.

The term "Force Majeure" refers to circumstances or events – whether or not foreseeable at the time of entering into the Agreement – which, according to standards of reasonableness, are beyond the influence of OneAppliance and as a result of which no fulfilment of its obligations can reasonably be demanded. This definition also extends to Force Majeure and/or Default on the part of one of Philips' suppliers. If the situation of Force Majeure persists for a period of three (3) consecutive months (or if OneAppliance reasonably expects that the delay will extend over a period of three (3) consecutive months), OneAppliance has the right to dissolve the Agreement in whole or in part, without any liability to the Buyer arising as a result.

7.                             LIMITED WARRANTY; DISCLAIMER OF LIABILITY

7.1 OneAppliance warrants that under normal use in accordance with the accompanying user manual, the Products (excluding any software not embedded in goods or supplied with goods by OneAppliance or software for which third parties hold the copyright) at the time of delivery to the Buyer and for a period of twelve (12) months from the date of delivery (or such other period as the parties may have agreed in writing or which OneAppliance at the time of sale), will be free of defects in materials and workmanship and will substantially comply with OneAppliance's specifications for the Product in question or, if applicable, other specifications to which OneAppliance has agreed in writing. Labour, (dis)assembly and/or (dis)installation are excluded from this warranty. The sole and exclusive obligation of OneAppliance and the sole and exclusive remedy of the Purchaser with respect to any claims under this warranty shall be limited to, at Philips' option, (1) repairing, or (2) providing a replacement for the defective or non-specified Product, or (3) providing adequate compensation for the purchase price thereof. OneAppliance will be granted a reasonable amount of time for such repair, replacement or compensation. OneAppliance is entitled, at its own discretion, to replace the defective or non-specified Product with a product with minor deviations in design and/or specifications that do not affect the operation of the agreed Product(s). Products that do not meet the specifications or are defective become the property of OneAppliance as soon as they have been replaced or compensation has been granted.

7.2 Products can only be returned by the Buyer to OneAppliance's designated location within the scope of the warranty in compliance with OneAppliance's then-current guidelines for the return of goods. If a claim under the warranty is justified, OneAppliance will bear the transport costs. If it is determined that returned Products are not defective and do meet the specifications, the Buyer must pay the price of these Products plus the costs incurred in connection with them in terms of transport, testing and handling.

7.3 Notwithstanding the above, OneAppliance has no obligations under the warranty if it appears that the alleged defect or failure to comply with the specifications is attributable to environmental tests or tests under special conditions of use, misuse, use in a manner other than those described in the applicable user manual, inadequate care, improper installation or accident, or improper repair, modifications or alterations or storage or improper transport, or improper handling of the Product.

7.4 Subject to the applicable mandatory provisions, the express warranty set out in the above applies only directly to the Buyer and not to its customers, agents or representatives and is in lieu of all other warranties, express or implied, including, but not limited to, any implied warranties as to fitness for a particular purpose,  merchantability, or absence of infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by OneAppliance.

7.5 Subject to the exclusions and limitations set out in Article 9 of these General Terms and Conditions of Delivery, the foregoing reflects the full liability of OneAppliance and its affiliated companies in connection with defective or non-specified Products delivered on the basis thereof.

8.                            INDEMNIFICATION OF INTELLECTUAL PROPERTY RIGHTS 

8.1 OneAppliance will, at its own expense: (i) defend itself if legal proceedings are instituted by a third party against the Buyer, insofar as these proceedings involve a claim based on the fact that any Product supplied by OneAppliance within the framework of an Agreement would directly infringe a patent,  copyright, trademark, or trade secret of the plaintiff party; and (ii) indemnify the Buyer against payment of damages and costs imposed in the final judgment in such proceedings to the extent that such order is directly and exclusively attributable to the breach in question.

8.2 OneAppliance has no obligation or liability towards the company pursuant to Article 8.1 Buyer

(i)       if OneAppliance does not: (i) is promptly notified in writing of any claim as referred to herein; (ii) is granted the exclusive right to take charge of and arrange for the investigation, preparation, defence and settlement of any such claim, including the selection of legal counsel; and (iii) receives, within reasonableness, full support and cooperation on the part of Buyer in the context of the investigation, preparation, defence and settlement as aforesaid; 

(ii)     if the claim is brought after the expiry of a period of three (3) years from the date of delivery of the Product;

(iii)    to the extent that the claim arises from (i) the modification of the Product where the infringement claim could have been avoided by the unmodified Product, or (ii) any design, specifications or instructions of the Buyer;

(iv)    to the extent that the claim is based, directly or indirectly, on the quantity or value of products manufactured with the aid of the Product or on the frequency or intensity of use of the Product, whether or not that claim is based on the fact that the Product as such or its use infringes or contributes to the infringement of the intellectual property rights of the claimant;

(v)     due to the unauthorized use or distribution of the Product or use outside the specifications of the Product;

(vi)    to the extent that such claim arises out of the Buyer producing, using, selling, offering for sale, importing or promoting Products or otherwise disposing of them following a notice from OneAppliance to the Buyer that the Buyer must cease such activity, it being understood that such notice shall only be given when the Product is the subject of the Product or,  in Philips' opinion, is likely to be the subject of such infringement action;

(vii)  for any costs incurred by the Buyer without the prior written consent of OneAppliance;

(viii) as far as the claim is based on prototypes, Open Source software or software supplied to OneAppliance and/or its affiliated companies by the Buyer or one or more persons designated by Buyer;

(ix)    to the extent that the claim arises from the infringement or alleged infringement of intellectual property rights of third parties that cover a standard established by a standardization body and/or that has been agreed between at least two companies;

(x)     for infringement of the intellectual property rights of any third party covering the production, testing or application of any assembly, circuit, combination, method or procedure in which the Product may have been used, or

(xi)    for infringement of intellectual property rights of third parties about which OneAppliance or a company affiliated with it has informed the Buyer or in respect of which OneAppliance or a company affiliated with it has published a statement (in a so-called datasheet or other specifications regarding the Product or elsewhere) that a separate license must be obtained.

With respect to claims for infringement within the meaning of this Article 8.2, the Buyer is obliged to indemnify OneAppliance and its affiliates against all damages and costs arising out of or in connection with such claims and to reimburse OneAppliance and its affiliates all costs incurred in defending against any claim,  demand, suit or proceeding for such breach, provided that OneAppliance promptly notifies Buyer in writing of any such suit or proceeding for infringement.

8.3    If a claim for infringement as referred to in the preceding Article 8.1 has been brought in respect of a Product, or is likely to be brought in the opinion of OneAppliance, or if OneAppliance receives a notification from a third party alleging infringement of a third party's intellectual property rights in relation to the Products,  then OneAppliance shall have the right, without any obligation and liability and at its sole discretion, to: (i) acquire for the Buyer the right to continue the use and sale of the Product; (ii) replace the Product with a non-infringing Product, or (iii) modify the Product in such a way that the Product in its new form is no longer infringing; (iv) purchase that Product from Buyer at the original price paid by Buyer less reasonable depreciation, or (v) suspend or cease deliveries to Buyer of the Products or parts to which such notice relates, or (vi) terminate any Agreement to the extent it relates to the applicable Product.

8.4    Subject to the exclusions and limitations set out in Article 9 of these General Terms and Conditions of Delivery, the foregoing reflects the entire liability and obligation of OneAppliance towards the Buyer and is the only one on which the Buyer may rely in respect of any actual or alleged infringement of any intellectual property rights or any other property rights of any kind.

9.                           LIMITATION OF LIABILITY 

9.1 ONEAPPLIANCE SHALL NOT BE LIABLE FOR LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, DAMAGES OF INDIRECT, ANCILLARY OR SPECIAL NATURE, OR DAMAGES IMPOSED BY WAY OF OF PUNITIVE OR IN CONNECTION WITH CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH RELATING TO THE AGREEMENT OR THE SALE OF PRODUCTS OR SERVICES BY THE OR ITS USE, WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACTUAL RELATIONSHIP OR CONTRACT, OR ANY OTHER LEGAL BASIS, AND EVEN IF ONEAPPLIANCE HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

THE TOTAL AND CUMULATIVE LIABILITY OF ONEAPPLIANCE TO THE BUYER UNDER ANY AGREEMENT IS LIMITED TO AN AMOUNT EQUAL TO TEN PERCENT (10%) OF THE AMOUNT INVOLVED IN THE AGREEMENT IN QUESTION.

9.2 Any claim by the Buyer for damages must be filed by the Buyer within ninety (90) days of the date of the event giving rise to the claim, while any legal action in respect of such claim must be commenced within one (1) year from the date of the claim. Claims not submitted in accordance with the provisions of this case shall be null and void.

9.3 The limitations and exclusions set out in this section apply only to the extent permitted by law.

10.               CONFIDENTIALITY

The Buyer acknowledges that all technical, commercial and financial data disclosed to the Buyer by OneAppliance and/or its affiliates are part of the confidential information of OneAppliance and/or its affiliates. It is forbidden for the Buyer to disclose any of this confidential information to third parties or to use it for any purpose other than that agreed upon by the parties within the framework of the sales transaction envisaged in this document.

11.             IMPORT AND EXPORT CONTROL

The Buyer is aware that certain transactions of OneAppliance are subject to laws and regulations

in the field of export controls, including, but not limited to, those of the UN, the EU and the US ("Export Control Laws"), which prohibit the export or diversion of certain products and technologies to certain countries. All obligations of OneAppliance to (re-)export or transfer Products as well as any technical assistance, training, investment, financial assistance, financing and brokering  shall be subject in all respects to such Export Control Laws and shall from time to time apply to the licensing and supply of the Products and technologies abroad by persons subject to the jurisdiction of the Export Control Authority. Export Control Laws responsible authorities. Where the supply of products, services and/or documentation requires an export or import license from certain authorities or is otherwise restricted or prohibited due to export/import control laws, OneAppliance may suspend its obligations and the rights of the Buyer/end-user until such license has been granted or for the duration of such restrictions or prohibitions. OneAppliance may even cancel the order in question in all cases without incurring any liability towards the Buyer or end user.

The Buyer warrants that it will comply in all respects with the (re-)export and transfer restrictions contained in those Export Control Laws or in export licenses (if applicable) for any Product delivered to the Buyer. The Buyer accepts the responsibility to impose all export control restrictions on third parties in the event of the re-export or transfer of the Product to third parties. Buyer shall take all measures reasonably necessary to ensure that no customer/Buyer or end-user is in breach of such Export Laws. Buyer shall indemnify OneAppliance against all direct and indirect damages, losses and costs (including reasonable attorneys' fees) and punitive damages and other liability incurred by the arises from claims arising from the fact that the Buyer or its customers have not complied with the provisions of this article.

Buyer confirms that the obligations contained in this Agreement shall survive the termination of any agreement or other arrangement under which the products, software or technology has been provided to Buyer. In addition, Buyer acknowledges that in the event of any conflict between the provisions of this Agreement and those contained in any other document in force between Buyer and Versui, the provisions of this Agreement shall prevail and be binding upon Buyer.

12.                TRANSFER AND SETTLEMENT

The Buyer is not permitted to exercise any rights or obligations under the Agreement without the prior written consent of Philips. Buyer shall not be entitled to withhold or reduce any payments or to set off existing and future claims against any payments due for Products sold under the Agreement or any other agreement that Buyer or any of its affiliates may have with Philips. Buyer agrees to make any payments due without regard to any claimed set-off claimed by Buyer or on its behalf.

13.           COMPLIANCE

The Buyer and anyone acting on behalf of the Buyer shall comply with all applicable laws and regulations in connection with the Agreement.

14.                           GOVERNING LAW; JURISDICTION

All quotations, confirmations and Agreements are subject to and construed in accordance with Dutch law. The Buyer and OneAppliance shall in the first instance endeavour to settle any dispute arising out of or in connection with any Agreement by means of consultation and negotiation with each other in good faith and in an atmosphere of mutual cooperation. All disputes that cannot be settled amicably shall be subject to the exclusive jurisdiction of the court in Amsterdam, the Netherlands, on the understanding that OneAppliance shall at all times be entitled to take legal action or institute proceedings against the Buyer through any other competent court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any offer, confirmation or Agreement. Nothing contained in this Section 14 shall be construed or construed as limiting the right of either OneAppliance or Buyer to obtain injunctive relief or other injunctive relief under applicable law or to take any steps to secure the right to seek redress from the other party.

15.      INFRINGEMENT AND TERMINATION 

Without prejudice to any rights and remedies that OneAppliance may have or may be available to OneAppliance under the Agreement or the law, OneAppliance may, by written notice to the Buyer, terminate the Agreement or any part thereof with immediate effect without any liability of any kind if: 

(a)                 any provision of the Agreement is breached or disrespected by the Buyer;

(b)                any insolvency, bankruptcy (including but not limited to reorganisation), liquidation or liquidation proceedings are commenced in respect of the Buyer (even if such proceedings are voluntarily or involuntarily initiated by the Buyer), the Buyer is placed under an administrator or administrator or a transfer is made for the benefit  of the Buyer's creditors;

(c)                 there is a change in control or ownership of the Buyer.

As soon as one of the above-mentioned events occurs, all payments to be made by the Buyer under the Agreement become immediately due and payable. In the event of the nullification, termination or nullity of an Agreement, the terms and conditions that are intended to survive the nullification, termination or nullity of the relevant Agreement shall actually remain in force.

16.                 MISCELLANEOUS 

16.1 If, as a result of the finding of a court of competent jurisdiction or as a result of any future action of a legislative or administrative body, one or more provisions of these General Terms and Conditions of Delivery lose their validity or cannot be enforced, this shall not affect the validity or enforceability of the remaining provisions. If, in the last resort, it is found that any provision of these General Terms and Conditions of Delivery is not legal or enforceable, the relevant provision shall be deemed to be part of these General Terms and Conditions of Delivery.

All other provisions shall remain in full force and effect and the provision deemed to be unlawful or unenforceable shall be replaced by a provision of the same effect reflecting the original intent of the provision, to the extent permitted by law.

16.2 The failure of either party to exercise any right or remedy under the Agreement, or does not exercise it until such time has elapsed, shall not be construed as a waiver of such right or remedy, nor shall any single instance of the use or partial exercise of such right or remedy result in the exclusion of any further or future use thereof or the exclusion of use of such right or remedy of any other right or remedy under the Agreement or any document relating thereto or the law.

 

 

 

This category is about the OneAppliance General Terms and Conditions.