Conditions of sale and delivery (US)

The following conditions apply to all delivery of goods and/or supply of services by GNT USA, Inc. (“GNT”). Diverging conditions made on the part of the other party (the “Buyer”) to GNT in agreements covering the sale, delivery of goods and/or the provision of services which have not been explicitly acknowledged by GNT in writing, shall not be binding on GNT even if GNT has not expressly contradicted them. These terms and conditions of sale and delivery continue to apply to any additional or subsequent business relation between GNT and the Buyer.

1. Conclusion of the agreement

GNT’s offers are subject to change. It is not until GNT’s written confirmation of order has been dispatched that the agreement becomes valid.

2. Terms of delivery

All terms of delivery stated by GNT have to the best of GNT’s knowledge been established on the basis of data known to GNT at the conclusion of the agreement. They shall be observed as much as possible. However, delivery dates shall never be regarded as a strict deadline, but rather as a good faith estimate. If any term is likely to be exceeded, GNT and the Buyer shall consult as soon as possible.

The mere fact of any stated term of delivery being exceeded shall not constitute default made by GNT.

In addition, GNT shall not be bound by any terms of sale or delivery which can no longer be met owing to circumstances beyond its control, such as cases of force majeure and/or unpredictable, unusual, or other circumstances incurred through no fault of GNT’s own which have occurred after the agreement was concluded.

Exceeding the terms of delivery as provided by the agreement does not entitle the Buyer to claim for damages of any kind unless in the case of willful intent or gross negligence and in such case subject to Section 8 hereof.

3. Order acceptance

The Buyer is under the obligation to take delivery of the goods in good time. The risk of loss, destruction and/or damage of the goods shall transfer to the Buyer from the time when the shipment has been handed over to the person in charge of transportation or has left the works (“ex works”) of GNT for shipment, regardless of who bears the freight costs.

4. Conditions of payment, interest for default.

GNT’s prices are quoted in U.S. Dollars, ex works The Netherlands. Not included in the prices are sales and other government taxes or duties. Invoices are payable within seven (7) days upon receipt of the goods, net, to a bank in New York, specified by GNT in the invoice. Unless otherwise agreed, any costs relating to transport, insurance, and packing are not included in the price and shall be charged separately.

The Buyer may not set off any debts due to him from GNT against his debts owing to GNT, with the exception of debts that have been expressly acknowledged by GNT in writing or have been finally determined by a court of law.

In the event of failure to make prompt payment, the Buyer shall be in default on the due date, and shall immediately be liable for interest in the greater amount of one percent (1%) per month or the statutory interest rate on the outstanding amount. If GNT is insecure about payment for any reason, GNT may require full or partial payment in advance or a letter of credit as a condition to the continuation of its delivery of products.

5. Legal requirements

The obligation to satisfy legal requirements regarding the use of GNT’s goods and/or services lies entirely with the Buyer. The Buyer will also deal with all questions arising therefrom. GNT may provide recommendations in this respect. However, due to complex and changing legislation which is frequently not interpreted uniformly, it is the responsibility of the Buyer to verify these recommendations and to satisfy itself, including without limitation on labeling requirements of the goods to be used in the markets the Buyer intends to supply.

The Buyer is solely responsible for any use or application of GNT’s goods and/or services. The obligation to legally and technically examine the EXBERRY.COM finished products made using GNT’s goods and/or services also lies with the Buyer.

The information provided by GNT about GNT’s goods and/or services or any other information given by GNT is to the best of its knowledge and belief, accurate. However, since the conditions of handling and use of GNT’s goods after sale to the Buyer are beyond GNT’s control, GNT cannot guarantee any results and GNT is not liable for any damage incurred arising therefrom.

6. Disclaimer of warranties

GNT will make every reasonable effort to deliver goods and/or services that substantially comply with the specifications provided by GNT. HOWEVER, DUE TO THE NATURE OF THE GOODS AND SERVICES DELIVERED, GNT CANNOT PROVIDE ANY WARRANTY WITH REGARD TO THE (USE OF THE) GOODS AND/OR SERVICES DELIVERED. THE GOODS AND/OR SERVICES ARE “AS IS” AND GNT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES WHETHER AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF GNT FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE GOODS, OR THE USE, MODIFICATION OR PERFORMANCE OF THE GOODS OR SERVICES OR ANY OTHER MATTER.

7. Inspection and notification of defects

THE BUYER IS OBLIGED TO CAREFULLY INSPECT AND CHECK DELIVERIES FOR ANY DEFECTS WITHIN SEVEN (7) CALENDAR DAYS OF DELIVERY (AT BUYER’S SPECIFIED PLACE OF DELIVERY), AND TO NOTIFY ANY SUCH DEFECTS IN WRITING TO GNT, WITHIN THREE (3) CALENDAR DAYS OF THE DISCOVERY, BEFORE PROCESSING THE GOODS.

FAILURE TO DO SO WILL CAUSE THE BUYER’S RIGHT OF REJECTION TO BE PRECLUDED IN RESPECT OF DEFECTS THAT COULD REASONABLY HAVE BEEN DETECTED BY CLOSER EXAMINATION. ANY PRODUCT NOT REJECTED BY WRITTEN NOTICE TO GNT WITHIN 10 CALENDAR DAYS OF DELIVERY WILL BE DEEMED ACCEPTED BY THE BUYER. IF IN SPITE OF PRIOR EXAMINATION BY THE BUYER, DEFECTS BECOME KNOWN ONLY WHILE PROCESSING THE GOODS, PROCESSING MUST BE STOPPED AT ONCE AND GNT MUST BE NOTIFIED WITHOUT DELAY IN WRITING THEREOF. HAVING GIVEN SUCH NOTICE, THE BUYER MUST HOLD THE DEFECTIVE AND UNPROCESSED GOODS AVAILABLE FOR EXAMINATION BY GNT. SMALL, IMMATERIAL VARIATIONS IN QUALITY WHICH ARE IN NATURE OF THE GOOD(S) DO NOT JUSTIFY A NOTIFICATION OF DEFECT.

Any defects detected during the inspection and in addition all defects in the goods supplied that could not reasonably have been detected during the inspection that are detected while processing, shall be remedied by GNT free of charge by either substitute delivery or a credit note limited to 100% of the net invoice price (this being the gross invoice price minus taxes and other additional costs) of the delivery or services, at GNT’s sole discretion. Should the good(s) after substitute delivery still show material defects, it is the Buyer’s right to cancel the order and receive a refund of any payments made.

GNT shall have no obligation under the preceding paragraph if:

  1. After inspection of a good, GNT determines, in its sole discretion, that it is not defective in material or workmanship.

  2. A good has been subject to misuse, misapplication, negligence, neglect (including without limitation to improper maintenance or storage), accident, catastrophe, modification, adjustment by Buyer or any third party.

The remedies for defects set forth in this Section 7 of the terms and conditions of sale are intended solely for the benefit of the Buyer and do not apply to any third party. SUCH REMEDIES SHALL TAKE THE PLACE OF ALL OTHER REMEDIES OR WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED. All claims must be made by the Buyer and may not be made by any third party. Rights hereunder may not be assigned, in whole or in part, by the Buyer for any reason EXBERRY.COM whatsoever. Any such attempted transfer or assignment shall be null and void.

THE BUYER HEREBY INDEMNIFIES AND HOLDS GNT HARMLESS FROM ALL AND ANY CLAIMS FOR DAMAGES FROM THIRD PARTIES IN CONNECTION WITH GOODS DELIVERED AND/OR SERVICES RENDERED BY GNT TO THE BUYER.

8. Restriction of liability

IN THE EVENT OF WILLFUL INTENT, INTENTIONAL CONDUCT OR GROSS NEGLIGENCE PURSUANT TO SECTION 2 OF THESE TERMS AND CONDITIONS, GNT SHALL ONLY BE LIABLE FOR ACTUAL DAMAGES AND IN NO EVENT BE LIABLE FOR CONSEQUENTIAL OR OTHER DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR PROFIT, INCIDENTAL, INDIRECT AND PUNITIVE DAMAGES.

9. Security interest

Unless and until all deliveries of goods and/or services are paid for in full, GNT reserves a security interest in them to secure the unpaid balance of the purchase price. The Buyer hereby grants to GNT a power of attorney, coupled with an interest, to execute and file on behalf of the Buyer all necessary financing statements and other documents required or appropriate to protect the security interest granted herein. The Buyer is obliged to keep goods that are not paid for in full properly stored and clearly marked off from other goods.

At the first request from GNT, the Buyer shall provide other, possibly additionally security for the payment.

The Buyer may not dispose of goods which are not paid for in full and subject to GNT’s security interest in any way except as is customary in the normal conduct of its trade or business.

All delivered goods shall remain the property of GNT until all goods and/or services are paid for in full to the extent that such retention of title is valid under applicable law.

10. Packaging

If not stated to the contrary in GNT’s invoice, packaging is non-returnable. Stainless steel containers are on loan. They must be returned to GNT free of charge within four (4) weeks after receipt, in good condition and clean.

11. Insurance

At Buyer’s request, GNT shall insure the goods before shipment in Buyer’s name and at Buyer’s expense.

12. Limitation on claims or actions

Unless otherwise provided for in these general terms and conditions, all entitlement to claim and other powers enjoyed by the Buyer for whatever reason against GNT in connection with deliveries from and/or services by GNT shall in any event expire one (1) year after its accrual.

13. Intellectual property rights

GNT shall remain the sole owner of its intellectual property rights, including without limitation patents, copyrights, trade secrets and trademarks in the goods or services, and have exclusive right to their use. The Buyer shall refrain from using GNT’s intellectual property rights without prior written consent. The Buyer shall not use any of GNT’s trademarks, trade names or other designations in connection with any product without GNT’s express written consent. GNT, at its option, may cancel or reject all orders from Buyer for the delivery of any goods or services, the manufacture, sale or use of which, if in GNT’s opinion, the Buyer infringes on any copyright, patent or trademark which the Buyer is not entitled to use.

14. Governing law; competent court

New York law (excluding conflict of laws principles) shall apply exclusively to all agreements and any other legal relations between GNT and the Buyer excluding the United Nations treaty on International Sales of goods of April 11, 1980.

Disputes about or in connection with an agreement between the Buyer and GNT including its conclusion shall be submitted exclusively to the jurisdiction of the competent court in the State of New York.