General conditions

GENERAL TERMS AND CONDITIONS

 

filed with the Chamber of Commerce in Alkmaar under number 37108745, August 2009.

 

GENERAL

 

Article 1

 

In these General Terms and Conditions "Ruby Fires" means a part Ruby Decor B.V. Ruby Fires a private company with limited liability which has its registered office at Vreekesweid 30-32 in (1721 PR) Broek op Langedijk. Ruby Fires' opposite party in these General Terms and Conditions is referred to as "the Other Party".

 

APPLICABILITY

 

Article 2

 

2.1 These General Terms and Conditions are applicable to all tangibles delivered and/or sold by Ruby Fires. Tangibles shall be taken to mean the material objects perceptible by touch and related to the business carried on by Ruby Fires, including samples, articles on display and other promotional material.

 

2.2 The applicability of any general terms and conditions stipulated by the Other Party is explicitly rejected.

 

2.3 Ruby Fires reserves the right to supplement and/or change these General Conditions at all times. Any deviation from the General Terms and Conditions by the Other Party requires Ruby Fires' prior written permission.

 

2.4 In the event that any of the stipulations of these General Terms and Conditions are declared null and void or otherwise not binding by a competent court, the remaining stipulations of these General Terms and Conditions or, at any rate, the remaining part thereof, will remain in force.

 

CONTENTS AND CONCLUSION OF THE AGREEMENT

 

Article 3

 

3.1 Any and all offers made by Ruby Fires are without any obligation, unless agreed otherwise in writing.

 

3.2 The agreement is concluded by a written confirmation of the order or by execution of the Other Party's order by Ruby Fires.

 

3.3 On or after entering into the agreement and before acting further, Ruby Fires is entitled to require adequate security that the payment obligations will be fulfilled.

 

3.4 Ruby Fires shall be authorised to call in third parties for a proper execution of the agreement. The costs will be passed on to the Other Party in conformity with the quotations provided in the agreement.

 

PRICES

 

Article 4

 

4.1 The prices stated in the publications issued by Ruby Fires are free of any obligation, unless explicitly indicated otherwise.

 

4.2 Unless agreed on and/or provided otherwise in writing, any and all prices of Ruby Fires' products published recently in the official list or elsewhere by Ruby Fires, will be Euros, exclusive of any turnover tax, removal contribution or packaging material and, within the Netherlands, are based on delivery Ex Works Broek op Langedijk, Other Party's domicile on the date of delivery.

 

4.3 Where Ruby Fires has published resale prices, said prices will count as recommended retail prices.

 

4.4 In the event of any increase of one or more of the cost price factors, including, at any rate, prices, exchange rates, wages, taxes, duties, expenses and freight charges, Ruby Fires shall be entitled to increase the price accordingly, even if the increase takes place pursuant to circumstances already to be anticipated during at the time of the offer, acceptance or confirmation of the order.

 

PAYMENT

 

Article 5

 

5.1 Any payments made by the Other Party shall be effected by payment in advance for the first orders. For further orders payment can be effected in the way indicated on the order confirmation / invoice. The day indicated on Ruby Fires' giro and bank statements will be considered the day of payment. Payments effected in any other manner will only be allowed after Ruby Fires' written permission.

 

5.2 Any payments made by the Other Party shall be effected exclusively in the currency in which the agreed prices have been expressed.

 

5.3 Payment by the Other Party of any obligation entered into vis-à vis Ruby Fires shall be effected without any discount or without the Other Party's invoking the right of set-off, unless agreed otherwise. Any payment discounts agreed will only apply if any and all remaining payment obligations vis-à-vis Ruby Fires have been fulfilled.

 

5.4 If the Other Party receives any payment discount, Ruby Fires shall be entitled to apply the same payment discount in respect of any and all claims the Other Party may have on Ruby Fires.

 

5.5 Even if the term of delivery as referred to in 6.5 with respect to any order has been exceeded or a complaint has been filed, the Other Party will remain obliged to pay fully and in good time as referred to in 5.1.

 

5.6 Payments of the Other Party will primarily be used to pay the interest payable by same as referred to in 5.7 and to pay the judicial and extrajudicial costs referred to in 5.8 and will subsequently be deducted from the oldest outstanding claim.

 

5.7 If the term payment referred to in 5.1 is exceeded, without prejudice to Ruby Fires' other rights and without prior notice of default, the Other Party will, on a monthly basis, be obliged to pay an interest on the invoice amount or any part still payable thereof at a rate of two (2) points above the promissory note discount rate of De Nederlandsche Bank N.V. applying at that moment until the date on which the invoice amount or the part still payable thereof is paid in full. Ruby Fires will then be entitled, furthermore, to demand immediate payment of any and all invoices not yet

paid and immediately suspend further delivery unless payments are made in cash or sufficient security is provided for the payment of these invoices.

 

5.8 Any and all judicial and extrajudicial collection charges incurred by Ruby Fires

 as a result of non-performance of the Other Party's payment obligations, shall be borne by the Other Party. Also, administration costs of €15,= per order shall be charged.

 

DELIVERY

 

Article 6

 

6.1 Delivery is considered to have taken place if the tangibles have actually been made available by Ruby Fires to the Other Party or have been put into use by the Other Party.

 

6.2 The delivery will be Ex Works Broek op Langedijk unless agreed otherwise in writing.

 

6.3 The Other Party is obliged to enable Ruby Fires to deliver the ordered articles to it in the week of delivery.

 

6.4 The other Party will take care of transport of the articles ordered by the Other Party, unless Ruby Fires and the Other Party agree in writing that the Ruby Fires will take care of transport.

 

6.5 The delivery timescales quoted by Ruby Fires should be considered targets that Ruby Fires will endeavour to achieve but do not purport to be deadlines. Ruby Fires is not obliged to pay any kind of damages if a delivery period is exceeded.

 

6.6 In the event of delivery on call, the Other Party is obliged to call down a part of, or all articles within three (3) months after the date on which the agreement was concluded. Within three (3) months after the first part has been called down, the Other Party is obliged to call down the remaining part of the order. The latter term may not exceed a period of six (6) months after the date on which the agreement was concluded.

 

GUARANTEE

 

Article 7

 

7.1 Ruby Fires guarantees that all tangibles delivered under the order are of good quality, free of any imperfection in the materials used, complete and fit for the purpose for which they are intended and meet the statutory regulations and governmental provisions of the country of destination, subject to the conditions that:

 

a) any and all instructions provided by Ruby Fires on the use and maintenance have been strictly observed; and

b) the state of the tangible has not been altered; and

c) any claim Ruby Fires may have on the Other Party by virtue of the

Agreement concerned has been fully paid.

 

7.2 Ruby Fires' liability under this guarantee expires 12 months after the delivery of the concerned products. Concerning the electrical products, the guarantee expires 24 months after the delivery of the product. After expiration of the guarantee period, Ruby Fires will on no account be liable for the operation of the concerned product.

 

7.3 Any and all defects or imperfections occurring during the guarantee period, with the exception of those that result from normal wear and tear or abnormal use, will be repaired by Ruby Fires free of charge.

 

7.4 Ruby Fires' liability under this guarantee shall not apply to defects or imperfections to electricity flexes.

 

TITLE AND TITLE RETENTION

 

Article 8

8.1 Ruby Fires will remain the owner of any and all articles, packaging material included, delivered to the Other Party by Ruby Fires until such time as the Other Party has completely fulfilled all its payment obligations ensuing from any agreement entered into with Ruby Fires.

 

8.2 The Other Party is not authorised to pledge the articles, encumber them otherwise or alienate them wholly or partly to third parties until full payment has been effected.

 

8.3 The Other Party is obliged to keep the delivered tangibles separated in a distinguishable manner until such time as the ownership has been transferred.

 

8.4 Until such time as full payment has been effected, the Other Party is obliged to inform Ruby Fires forthwith if:

a) any third party lays claim on the articles referred to in 8.1

b) it has learned that the third party referred to intends to lay claim on the articles referred to in 8.1;

c) it intends to file an application for a (provisional) suspension of payment;

d) it has been granted a (provisional) suspension of payment;

e) it intends to file for bankruptcy;

f) it has learned that one or more of its creditors intend to institute bankruptcy proceedings against it, and also if

g) it has been declared bankrupt.

 

8.5 If Ruby Fires invokes the title retention referred to in 8.1, Ruby Fires will be entitled to take the articles delivered by it, after having disassembled them, if necessary, from any movable or immovable articles to which they were attached and which are owned by the Other Party or any third parties. Any costs involved will be borne by the Other Party.

 

COMPLAINTS

 

Article 9

 

9.1 The Other Party is obliged immediately after the delivery to check the tangibles thoroughly for deficiencies, impairments or defects and, in the presence thereof, inform Ruby Fires forthwith.

 

9.2 If, within 8 days after delivery, the Other Party fails to point out in writing to Ruby Fires any deficiencies, impairments or defects that would be noticeable on a thorough examination, the Other Party will be deemed to approve of the state in which the tangibles have been delivered and any and all rights of claim will lapse.

 

9.3 If a complaint or claim of short delivery is found to be well-founded, Ruby Fires will repair or replace the articles concerned free of charge or compensate the Other Party for them, such at Ruby Fires' discretion. In the event of replacement, the articles replaced by Ruby Fires will become Ruby Fires' property.

 

 

 

RETURN OF ARTICLES DELIVERED

 

Article 10

 

10.1 The articles delivered by Ruby Fires and taken delivery of by the Other Party may be returned to the former exclusively after Ruby Fires' written permission and under conditions to be set by Ruby Fires.

 

10.2 The costs of returning the articles delivered by Ruby Fires to the Other Party will be borne by the Other Party, except where the complaint about the articles has been submitted in time and has proved to be well-founded, in which latter case the costs in question will be borne by Ruby Fires.

 

10.3 All damages to returned articles resulted by transport, caused by the lack of the original packing-material or the improper use of the packing-material, will be borne by the Other Party. 

 

LIABILITY

 

Article 11

 

11.1 Ruby Fires shall not be liable to compensate the Other Party or any third party for any kind of loss of or damage to movable or immovable property, either direct or indirect, including trading losses and consequential losses, or for any damage to persons. At any rate, Ruby Fires will not accept any liability for any loss or damage caused by:

 

a) injudicious use of the tangible concerned;

b) use for a purpose other than to which the tangible is suited in accordance with objective standards;

c) negligent behaviour of the Other Party, its personnel or any other persons called in by it;

 

11.2 Ruby Fires' liability is at all times limited to the net invoice value of the tangible concerned.

 

11.3 Fulfilment of the guarantee obligations applying and/or payment of the loss assessed by Ruby Fires or its insurer(s) shall be considered to be the sole and entire indemnification. The Other Party shall not be entitled to any other claim for indemnification, except in the event of gross negligence or intention on Ruby Fires' part.

 

11.4 The Other Party is obliged to indemnify or compensate Ruby Fires for any and all claims from third parties for compensation of loss or damage for which Ruby Fires' liability in the relationship with the Other Party has been excluded in these General Terms and Conditions.

11.5 A claim for damages and/or repair or replacement will be statute-barred by the lapse of one year after the damage and/or the defect has been recognised by the Other Party as evidenced by written notification or should reasonably have been recognised.

 

11.6 If Ruby Fires would invoke any of the stipulations of paragraphs 11.1 to

 

11.5, any of its employees possibly sued may also invoke said stipulations as if they themselves were a party to the agreement between Ruby Fires and the Other Party.

 

 

DISSOLUTION

 

Article 12

 

12.1 If the Other Party:

a) has been declared bankrupt or an application has been filed to that end, has applied for or been granted suspension of payment, has been declared subject to the debt rescheduling arrangement or has submitted a request therefore, or has its entire assets or any part thereof seized by prejudgement or executory attachment;

b) fails to fulfil a statutory obligation or any obligation resting upon it by virtue of the Agreement or these General Terms and Conditions, or if Ruby Fires is able to foresee that the Other Party will fail in such case;

c) fails to pay an invoice amount or part thereof within the term fixed for it; Ruby Fires shall be entitled, by the mere occurrence of any of the aforementioned circumstances, to dissolve the Agreement unilaterally, either wholly or partly, without any notice of default and without any judicial intervention, by means of a written statement to the Other Party.

 

12.2 The compensations payable by the Other Party for the part of the Agreement executed by Ruby Fires shall be fully due and payable forthwith and without any warning or notice of default being required, all of this without prejudice to Ruby Fires' rights to compensation of costs, loss, damage and interest.

 

In case of a cancellation of the shipment and/or activities a compensation of at least 30% of the total sum of the order will be charged, unless other written agreements have been made with the sales party.

 

GOVERNING LAW; COMPETENT COURT

 

Article 13

 

13.1 Any and all legal relationships between Ruby Fires and the Other Party shall exclusively be governed by Dutch law.

 

13.2 Any and all disputes possibly arising out of any agreement between Ruby Fires and the Other Party or out of its execution and any and all disputes concerning these Terms and Conditions shall be settled by the competent court in Alkmaar.

 

13.3 The stipulation in the previous paragraph shall have no effect on Ruby Fires' right to either submit the dispute to the civil court which has jurisdiction according to the ordinary rules of jurisdiction or have it settled by means of arbitration.

 

FINAL PROVISION

 

Article 14

 

The Dutch version of these general conditions are binding. This translation in English is for convenience purposes only.