Sales Terms and Conditions

Article 1 - Definitions

1.1 These Sales Terms and Conditions are applicable to all agreements and offers involving Xuan Ye International B.V., with its registered office in Rotterdam, and its affiliated companies (hereinafter collectively referred to as "the Company"). These terms apply to the delivery of goods by the Company to the party addressed in the offer or the relevant counterparty (hereinafter referred to as "the Customer").

1.2 The applicability of any Customer's general terms and conditions is explicitly rejected.

1.3 Any deviations from these Sales Terms and Conditions will only be valid if accepted by the Company in writing.

Article 2 - Offer

2.1 All offers made by the Company are subject to contract, even if the offer specifies an acceptance period, unless explicitly stated otherwise in writing.

Article 3 - Agreement

3.1 Agreements, including changes and/or additions, are only binding when confirmed in writing, except if the Company has initiated contract execution beforehand.

3.2 Written agreement is established either upon the contract's signing by the Company's board of management and the Customer, or upon dispatch of the written order confirmation or invoice signed by the Company's board of management. Promises and arrangements by Company subordinates are non-binding unless confirmed in writing by the board of management. 

3.3 The contract fully represents the agreement's contents. The Company's order confirmation or invoice serves as an accurate representation of the agreement's contents unless the Customer promptly raises written, substantiated objections.

3.4 Minor deviations within customary tolerances are permissible during agreement execution.

3.5 Unilateral Customer cancellations are void unless confirmed in writing by the Company. 

Article 4 - Notices, Information, and Statements

Notices, information, statements, and samples provided by the Company, in any form, are only indicative and do not bind the Company, unless expressly stipulated otherwise in the agreement.

Article 5 - Confidentiality

The Customer must maintain broad confidentiality concerning all business information related to the Company, disclosed within the offer or agreement, to any third party.

Article 6 - Prices and Price Adjustments

6.1 The prices indicated or agreed upon by the Company are exclusive of taxes, including Value Added Tax (VAT), and other applicable levies. These prices are established based on the terms and conditions of delivery, as outlined in the subsequent sections.

6.2 In cases where the goods are intended for delivery within the European market and are therefore exempt from Value Added Tax (VAT) or other taxes and levies, these taxes will still be reflected in the invoiced amount. However, the Customer may seek credit for such taxes by providing evidence of the qualified delivery within the European market.

6.3 If the agreed or indicated prices are determined by the weight of the goods, the Company will conduct weight measurement using calibrated weighing equipment before delivery. The Customer may request to be present during this weighing process, provided it does not cause undue delay in the delivery. The Customer is responsible for initiating this request in a timely manner.

6.4 The Company reserves the right to adjust the agreed or indicated prices in the event of cost increases stemming from external factors, such as changes in prices of goods, raw materials, or components obtained from third parties, fluctuations in wages, national insurance contributions, freight charges, insurance premiums, or other cost factors. This also includes changes in foreign exchange rates and additional charges, such as import and transit duties.

6.5 In cases where a price increase occurs within three months of the agreement's conclusion, Customers who are also consumers have the option to terminate the agreement.

6.6 Should the agreed or indicated prices depend on subsidies or levies that are not ultimately acquired, the Company retains the right to make corresponding adjustments to the prices.

Article 7 - Delivery, Delivery Period, and Delivery Time

7.1 Unless otherwise explicitly agreed upon, all deliveries shall be executed on an "Ex Works" (EXW) basis from the Company's premises. The interpretation of the delivery terms shall be governed by the most recent edition of the Incoterms at the time of the agreement, as issued by the International Chamber of Commerce.

7.2 The commencement of the delivery period shall be determined by one of the following events, whichever occurs last:

i. The date of agreement formation;

ii. The date when the Company has all necessary documents, information, permits, exemptions, approvals, allocations, and other requisites required for delivering the goods;

iii. The date of receiving prepayment by the Company or the provision of security, if applicable as per the agreement.

7.3 The delivery period is structured based on the circumstances prevailing at the time of agreement formation and the timely supply of materials and goods, ordered by the Company for executing the agreement. Should any delay arise due to alterations in these circumstances or the non-delivery of ordered materials or goods, the delivery period shall be extended reasonably, accounting for all pertinent factors.

7.4 The precise delivery date of the goods is the moment when the goods, except for minor components, are ready for shipment and the Company informs the Customer accordingly, or when the goods depart the Company's premises for transportation to the Customer.

7.5 Partial deliveries are admissible unless otherwise specified.

7.6 The stipulated delivery date is not considered firm unless explicitly stated otherwise. In cases of justified and attributed delays beyond the delivery date, formal notice of default is mandatory. In such instances, the Customer can invoke the right to dissolve the agreement. Any prepayments shall be reimbursed, without accruing interest.

Article 7 serves to elaborate on the intricacies of the delivery process, encompassing the delivery terms, commencement of the delivery period, and circumstances influencing the period's duration. This article aims to provide a comprehensive framework for the timing, conditions, and expectations related to the delivery of goods.

Article 8 - Transportation and Shipment

8.1 Regardless of the agreed terms of delivery, the Company reserves the prerogative to arrange the transportation of goods, including unloading, at the Customer's expense and Page 4 of 11 risk. The method and means of transportation are to be determined at the Company's discretion.

8.2 The Company bears no responsibility for the Customer's utilization of transportation documents provided by the Company for goods transit.

8.3 Upon the Company's request, the Customer shall furnish the necessary securities to obtain the documents requisite for transporting goods to their intended destination.

8.4 In cases where circumstances beyond the Company's control hinder the transportation or delivery of goods to the designated location, or if the Customer fails to accept the delivery, the Company retains the right, at its discretion, to either retrieve the products or store them (or arrange storage) at the Customer's cost and risk. All expenses associated with return shipment and storage are the Customer's responsibility. Furthermore, the Customer must uphold his obligations toward the Company as if the delivery was successfully executed. The predetermined costs for return shipment and storage, as jointly established by the Company and the Customer, amount to at least 15 percent of the agreed price. However, this does not preclude the Company's entitlement to claim compensation for actual costs exceeding this figure.

Article 8 elaborates on the Company's authority and responsibilities concerning transportation and shipment. It provides insights into the Company's capacity to manage transportation, outlines the rules regarding transportation documents, and delineates the Company's rights in cases where factors beyond its control impede successful delivery. The article underscores the Company's stance on costs and responsibilities for return shipments and storage.

Article 9 - Packaging and Return of Packaging

9.1 Single-use packaging will not be accepted for return by the Company.

The Company retains the discretion, for reusable packaging, to decide whether or not to accept returns.

9.2 In cases where the Company accepts returns of reusable packaging, the Customer may be charged separately for such packaging along with the delivered goods on the invoice.

9.3 In instances where reusable packaging is returned to the Company at the Customer's expense, the Company will issue a credit invoice, reimbursing the Customer for the packaging's invoiced amount. However, if the condition of the returned packaging is inferior to its state upon the Customer's acceptance, the credited amount will be adjusted accordingly.

9.4 Only upon receipt of the credit invoice, the Customer is entitled to offset the value of the returned packaging against the amount owed to the Company.

9.5 It is important to note that any damage to goods caused by the destruction or damage of packaging remains the responsibility of the Customer.

Article 10 - Risk, Ownership, and Retention

10.1 The transfer of risk pertaining to any direct or indirect damage that may occur to the goods shall take effect immediately after the goods are deemed to be delivered.

10.2 The Company retains full ownership of all goods delivered until all outstanding debts owed by the Customer, arising from the supply of goods by the Company or yet to be supplied under any agreement, as well as any liabilities stemming from any breach of such agreements by the Customer, are fully settled.

10.3 It is incumbent upon the Customer to exercise due care and diligence in storing the goods supplied under retention of title and to distinguish them as Company property. Furthermore, the Customer is obligated to secure appropriate insurance coverage against loss or damage, regardless of the cause, during the period when the goods remain under retention of title. This insurance coverage should designate the Company as a (co-)insured party, conferring independent rights to claim from insurers. Upon request, the Customer must present the insurance policies to the Company for inspection. Additionally, should the Company request it, the Customer must assign all claims against insurers arising from the aforementioned insurance policies to the Company or grant a right of pledge to the Company.

10.4 The Company is entitled, without any prior formal notice, to repossess goods delivered under retention of title that are still in the possession of the Customer, should the Customer default on their obligations. In such instances, the Customer irrevocably authorizes the Company to exercise this repossessing right as deemed necessary.

10.5 If the Company repossesses goods as mentioned in the previous paragraph, it reserves the right to dissolve the agreement entirely or partially without the need for judicial intervention. This dissolution is carried out without prejudice to the Company's entitlement to seek compensation for any incurred costs or damages. The Customer will be credited with the market value, which in no case can exceed the original purchase price, minus the damages and costs incurred by the Company due to the repossession.

10.6 In the course of their professional or business activities, the Customer may resell and deliver the goods supplied under retention of title to third parties. In such resale, the outstanding debt owed by the Customer to the Company for the goods resold immediately becomes due and payable, to the extent that this claim wasn't already due and payable.

10.7 It remains the Customer's duty to inform third parties about the Company's retention of title. Furthermore, the Customer is obliged to communicate the whereabouts of the goods and the identity of any individual or entity to whom the goods have been sold if requested to do so by the Company.

Article 11 - Payment

11.1 Unless otherwise explicitly agreed upon in writing, the payment of the agreed price shall be rendered at the moment the agreement is formalized.

11.2 All payments must be made without any deductions, offsets, or settlements and should be made in the currency specified on the invoice. In situations where the Customer asserts a claim against the Company related to the agreement's performance, such a claim does not relieve the Customer of their obligation to fulfill the agreed payment.

11.3 In cases where the Company has valid reason to believe that the Customer may not fulfill their financial obligations, the Company reserves the right, at its discretion, to request sufficient security from the Customer to guarantee payment before proceeding with the execution of the agreement. Until the Company receives the requested security, it may suspend its performance obligations.

11.4 If the Customer fails to make the required payment by the stipulated time or within the designated period as outlined in paragraph 1 of this article, the Customer will automatically be considered in default, without the need for any prior formal notice. In such instances, the Customer will be obligated to pay statutory interest on the outstanding amount from the date when the payment was originally due. This is without prejudice to any other rights the Company may have, including the right to seek compensation for any losses incurred due to exchange rate fluctuations.

11.5 The Customer shall be responsible for covering any and all costs incurred by the Company as a result of the Customer's failure to fulfill their obligations, including extrajudicial collection costs and legal expenses. The determination of extrajudicial collection costs, as outlined in this article, shall be jointly agreed upon by both the Company and the Customer, and it shall be set at a minimum of 15% of the principal amount due. This is without prejudice to the Company's right to claim actual higher costs if they were incurred.

Article 12 - Return Shipments

12.1 Any return of goods delivered by the Company necessitates prior written consent from the Company. Should circumstances arise that warrant a return shipment, it must be noted that all costs and risks associated with such a return shall be borne by the sender.

12.2 Return shipments are only permissible under reasonable conditions and subject to the Company's approval. It is important to emphasize that this provision does not encompass trading goods, such as perfume, cosmetics, liquor, beer, and mineral water.

12.3 The Company, upon granting authorization for a return shipment, retains the right to specify the terms and conditions under which such a return may take place. The Company will outline the necessary procedures, responsibilities, and any associated costs that must be met by the Customer prior to authorizing a return.

12.4 In the event of an authorized return, the Company will assess the returned goods' condition and take into account any depreciation or damage that may have occurred during the return process. The credited amount, if applicable, will be determined based on the goods' current state and their initial value at the time of purchase.

12.5 It is imperative for the Customer to ensure that returned goods are appropriately packaged to prevent any damage during the return process. Until the returned goods are received and inspected by the Company, the risk associated with the returned items shall remain the responsibility of the Customer.

Article 13 - Samples

Samples may be requested and provided before delivery, subject to reasonableness and availability. Please be aware that this provision is not applicable to trading goods, specifically excluding items like perfume, cosmetics, liquor, beer, electronics and mineral water.

Article 14 - Complaints and Guarantees

14.1 The Customer's entitlement to file complaints is limited to matters concerning quantity, weight, specification accuracy, or non-conformity of the delivered goods with the provided sample(s).

14.2 It is the Customer's responsibility to conduct a thorough inspection of the goods immediately upon their arrival.

14.3 For complaints related to defects that are readily apparent during inspection, as well as complaints concerning quantity, weight, or specification discrepancies, written notification must be submitted within 24 hours from the time of delivery. Such notification must include a comprehensive description of the alleged defects; failure to adhere to this requirement renders any claim in this regard null and void.

14.4 Complaints pertaining to other defects that become evident after inspection must be submitted in writing within 24 hours from the moment the defects are discovered. In any Page 8 of 11 event, such complaints must be lodged within three (3) months from the delivery date. Non-compliance with these timelines will result in forfeiture of any claim.

14.5 Furthermore, any claim by the Customer concerning delivered goods will be invalidated under the following circumstances:

a. The agreement explicitly pertains to the delivery of used or damaged goods.

b. The goods have undergone processing or any other alteration rendering them unidentifiable as originating from the Company.

c. The defects are attributable to normal wear and tear, improper handling, utilization, storage, or maintenance of the goods.

d. The Company has not been promptly afforded the opportunity to investigate the complaints and fulfill its obligations.

e. The Customer has failed, inadequately fulfilled, or fulfilled untimely any obligations on their part.

14.6 In instances involving components and/or goods procured from third parties, which have not undergone treatment by the Company, the Customer's claims against the Company shall be commensurate with the claims the Company can assert against its supplier. In the event this applies, the Company shall, without exception, be absolved from liability by transferring its rights vis-à-vis its supplier to the Customer.

14.7 If the Customer can directly assert their rights against the manufacturer regarding the concerned defects, they are precluded from asserting such rights against the Company.

14.8 Notwithstanding the foregoing provisions, in cases of timely and substantiated complaints, the Company's obligation shall be confined to either rectifying the goods, effecting redelivery, or providing credit for the defective goods. These Sales Terms and Conditions shall remain unaltered in the context of redelivery.

Article 15 - Liability

15.1 The Company's liability, as stipulated in this agreement, is restricted to the fulfillment of obligations explicitly outlined herein, particularly those articulated in the preceding articles.

15.2 Under no circumstances shall the Company be held accountable for business-related losses or any other forms of indirect or consequential damages arising from or connected to this agreement.

15.3 Except in cases of gross negligence or intentional misconduct, the Company shall not be liable for direct or indirect damages, including but not limited to business losses, resulting from the infringement of intellectual or industrial property rights, licenses, or other rights held by third parties.

15.4 If the Company becomes liable to any third party or parties for damages not covered under these General Terms and Conditions or other contractual agreements, the Customer shall indemnify and hold the Company harmless from any such liabilities, damages, and related costs, including but not limited to legal fees and interest.

15.5 The limitations and exemptions of liability specified for the Company herein also extend to its employees, agents, representatives, and other individuals employed by the Company within the scope of this agreement, as well as to those entities from which the Company obtains delivered goods and/or components.

Article 16 - Force Majeure

16.1 For the purpose of these terms and conditions, the term "force majeure" encompasses any circumstances beyond the control of the Company, whether foreseeable at the time of contract formation or not, that either permanently or temporarily hinder the execution of the contract. These circumstances include, but are not limited to, war, civil unrest, riot, strikes, employee lockouts, freight disruptions, fire, adverse weather conditions preventing work, and any other interruptions to the Company's operations or those of its suppliers.

16.2 Should the performance of the contract be hindered by force majeure, the Company reserves the right, without requiring any legal intervention, to either suspend the execution of the contract for a maximum period of three (3) months or to partially or fully terminate the contract's execution. This termination shall be made without any obligation on the part of the Company to provide compensation.

16.3 In the event of a suspension or partial termination under the provisions of the previous article, the agreed price shall immediately become due and payable, subject to the deduction of any costs not incurred by the Company due to the suspension or partial termination.

16.4 Should force majeure lead to the return of goods delivered by the Company, the expenses and risks associated with such returns shall be borne solely by the sender.

Article 17 - Failure and Dissolution

In cases as stipulated by applicable laws or regulations, and in instances where the Customer fails to fulfill, in a timely or satisfactory manner, any of the obligations arising from the agreement, including those outlined within these Sales Terms and Conditions, or in situations where there exists a legitimate doubt regarding the Customer's ability to meet contractual obligations towards the Company, the Company reserves the right to take action without the necessity of prior notice or judicial intervention. This action may involve either suspending the execution of the agreement for a maximum duration of three (3) months or partially or entirely terminating the agreement. The Company's exercise of these rights does not entail Page 10 of 11 any obligation to provide compensation or guarantees, and these actions are taken without prejudice to any other rights that the Company may possess.

In the event of a suspension of obligations or a partial termination as stipulated above, the Company is entitled to, and ultimately obligated to, either proceed with the execution of the agreement or fully dissolve the agreement at the end of the suspension period.

In cases where the agreement is partially terminated in accordance with the above, the agreed price becomes immediately due and payable, minus any expenses not incurred by the Company due to the suspension or partial termination.

If the Customer fails to take possession of goods covered by a partially terminated agreement, the Company reserves the right to either store these goods at the Customer's expense and risk or sell them at the Customer's expense.

Should the Customer return goods following the dissolution of the agreement, the cost and risk associated with the return will be borne exclusively by the Customer until the Company takes possession of the returned goods.

Article 18 - Suspension + Dissolution - Consequences

18.1 In situations where the Company suspends its obligations, it retains the authority, and when necessary, the obligation to decide whether to continue executing the agreement or initiate partial or complete dissolution of the agreement.

18.2 Should a suspension or partial dissolution, as defined by the preceding article, occur, the agreed price becomes immediately payable, after accounting for any costs not incurred by the Company due to the suspension or partial dissolution.

18.3 In the case of a partial dissolution, the Customer is further obligated, subsequent to payment as stated above, to take possession of the goods for which payment was made. If the Customer fails to do so, the Company may, at its discretion, store the goods at the Customer's risk and expense, or arrange for their sale at the Customer's cost.

18.4 If, after the agreement's dissolution, the Customer returns received goods to the Company, the associated costs and risks of such returns are solely borne by the Customer until the Company officially takes possession of the returned goods.

Article 19 - General

19.1 In the event that one or more provisions of the agreement, including those outlined in these General Terms and Conditions, are deemed null and void or become legally invalid, the remaining provisions of the agreement shall remain in full force and effect. In such Page 11 of 11 circumstances, the parties shall engage in consultations to establish alternative arrangements for the void or invalid provisions.

19.2 If any provision of the agreement, including those stipulated in these General Terms and Conditions, is found to be in conflict with mandatory provisions defined by competent authorities, both existing and future, the latter provisions shall be regarded as having superseded the relevant stipulations of the agreement.

Article 20 - Disputes and Applicable Law

20.1 any dispute arising in connection with the agreement or subsequent agreements stemming from it shall be subject to the exclusive jurisdiction of the courts in Rotterdam, the Netherlands, unless the Company expressly opts for the jurisdiction of the court in the Customer's domicile or place of business.

20.2 The agreement and any further agreements arising from it shall be interpreted and governed by the laws of the Netherlands, with the exception of any provisions set forth in the Vienna Sales Convention or any other potential international regulations governing the purchase of movable goods, which may be explicitly excluded by mutual consent.

Rotterdam, 1 January 2020