Sales Terms and Conditions

ARTICLE 1. | DEFINITIONS

In these general conditions, the capitalised terms below have the following meanings, insofar as the nature or purport of the clauses does not indicate otherwise.

Rotovia: the user of these general conditions, registered in the Commercial Register under Chamber of Commerce number 38018356.
Other Party: Any natural or legal person with whom Rotovia has concluded or intends to conclude an agreement.
Agreement: any agreement formed between Rotovia and the Other Party, including the order confirmation or quotation which Rotovia has fulfilled, by which Rotovia has committed itself, at a price to be agreed upon, to selling and delivering products and/or providing services to the Other Party.
Products: all items to be sold and delivered to the Other Party by or on behalf of Rotovia under the Agreement.
Services: all services to be provided under the Agreement by or on behalf of Rotovia at the behest of the Other Party, such as custom moulding, all in the broadest sense of the word.
Written/in Writing: storage of both traditional written communications and digital communications in a durable data storage medium, including e-mail communications.

ARTICLE 2. | GENERAL PROVISIONS

These general conditions apply to all offers and quotations of Rotovia, orders, assignments and to any Agreement formed between the parties, as well as to any prior negotiations.
The applicability of the purchasing or other conditions of the Other Party is expressly rejected, unless their applicability has been expressly accepted by Rotovia in Writing.
The provisions of these general conditions may only be deviated from in writing. If and to the extent that what the parties have agreed in Writing differs from the provisions of these general conditions, what the parties have expressly agreed in Writing will take precedence.
The nullification or nullity of one or more of these provisions will not affect the validity of the remaining clauses. In such a case, the parties will be obligated to enter into mutual consultation in order to reach a substitute arrangement with respect to the affected clause, with due observance of the purpose and intent of the original provision.
Rotovia has the right to amend these general conditions. The Other Party will be deemed to have accepted any amendment to the general conditions if it has not notified Rotovia of its objections in writing within seven days of written notification of the amendments.
If these general conditions have been translated into a language other than Dutch, the Dutch text will always take precedence in the event of any differences.

ARTICLE 3. | OFFER AND FORMATION OF THE AGREEMENT

Unless a term of acceptance is stated therein, every offer by Rotovia is without obligation and a term is never a deadline from which the Other Party may derive rights.
The Other Party cannot derive any rights from an offer by Rotovia that contains an obvious error or mistake.
Furthermore, the Other Party cannot derive any rights from an offer by Rotovia that is based on incorrect or incomplete data provided by the Other Party.
Any drawings, illustrations and other data regarding dimensions, weights, colours, estimates, tolerances, technical data and statements regarding usability and maximum capacity, etc. included in the Agreement are approximate only. These statements are only binding insofar as they have been expressly confirmed in Writing.
Each Agreement is formed through an offer and acceptance. If the Other Party’s acceptance deviates from Rotovia’s offer, the Agreement will not be concluded in accordance with this deviating acceptance, unless Rotovia accepts the deviating acceptance in Writing or effectuates the same.
If Rotovia provides a sample or example to the Other Party before or after concluding the Agreement, it does not have to possess the same properties as stipulated in the Agreement. This applies accordingly to drawings, diagrams, measurements, weights and other data provided by Rotovia to the Other Party before or after the conclusion of the Agreement.
If a Rotovia staff member makes public statements about the quality of the Service or Product sold (e.g. weights, dimensions, usability, tolerances and technical data), it is assumed that these statements were not fundamental to the conclusion of the Agreement by the Other Party.
The Product must only have the quality set forth in Writing in the Agreement. These quality features that describe the Product are definitive and decisive. Rotovia is entitled to change the quality unilaterally if legislation requires it or if it is a technical improvement, provided that the use intended by the Agreement is not adversely affected.
A composite quotation does not oblige Rotovia to fulfil part of the offer at a corresponding part of the quoted price.
If the Other Party concludes the Agreement on behalf of another natural or legal person, it declares that by entering into the Agreement it is authorised to do so. The Other Party is jointly and severally liable besides this legal or natural person for the fulfilment of the obligations under that Agreement.
The Other Party is responsible for ensuring that the Product and/or Service is suitable for its intended purpose; this also applies if Rotovia advises the Other Party in any way on development or otherwise provides support.
The Other Party is fully responsible to Rotovia for the accuracy of the data stated in the Agreement. The Other Party must at all times vouch for the data, information, designs and specifications provided by it. Rotovia is not obligated to check the accuracy of the data, information, designs and specifications provided by the Other Party. The Other Party indemnifies Rotovia against third-party claims arising from any inaccuracies stated in this paragraph.
The Other Party will always use reasonable efforts to provide complete and accurate information, decisions and data in a timely manner, as reasonably requested by Rotovia from time to time.
The Other Party will bear the risk of the selection of the items, goods and/or services to be delivered by Rotovia. The Other Party will always take the utmost care to ensure that the performance requirements are accurate and complete.
After accepting the order, any changes specified by the Other Party will only be implemented by Rotovia if they have been confirmed by us in writing. If, for reasons of its own, Rotovia decides not to implement the specified changes, the Other Party will under no circumstance be entitled to cancel the Agreement in part or in full and the Other Party will remain fully obligated to pay the agreed price or, at Rotovia’s discretion, the costs already incurred as well as the amount on account of its loss of profits and losses.
Termination or cancellation by the Other Party is only possible with the prior written consent of Rotovia. In that case, the Other Party will be obligated to compensate all costs already incurred by Rotovia, as well as its loss of profits and losses, subject to a minimum of 25% of the agreed price of the order in question.
Rotovia retains full and unrestricted rights to all estimates, drawings, samples, diagrams, user guides and other documentation („documentation”) it provides to the Other Party. The Other Party is not entitled to give third parties access to the documentation itself or its contents without the prior written consent of Rotovia. The Other Party is obligated, at Rotovia’s request, to surrender all documentation to Rotovia immediately and completely if the Other Party no longer needs it for the purpose of its normal business operations or if the Other Party ultimately does not place an order. Samples and drawings provided by the Other Party to Rotovia will only be returned to the Other Party by Rotovia at the request of the Other Party. If no order is placed, Rotovia will be entitled to destroy the samples and drawings provided once three months have passed after a quotation was given.

ARTICLE 4. | CUSTOM ORDERS

Insofar as the Agreement pertains to the delivery of Products to be created or processed according to the Other Party’s specification, the Other Party is, if and insofar as this is required for a proper set-up and/or execution of the Agreement, obligated to make all relevant data available to Rotovia as soon as possible as required for the execution of the Agreement, in the manner prescribed by Rotovia. If Rotovia provides delivery instructions for the provision of specifications by the Other Party, these instructions must be strictly complied with. The Other Party guarantees the accuracy and completeness of the information provided by it to Rotovia. Rotovia will under no circumstance be liable for any loss or damage arising from its reliance on incorrect or incomplete information supplied by the Other Party.
In the event of a custom order or custom-made Products, the Other Party will be obligated to take delivery of this order if Rotovia has already fulfilled this order. Also, in the event of cancellation, the Other Party will in any event be obligated to settle Rotovia’s costs in full, including design and development costs, purchase costs, production costs and costs of storage for uncollected Products and the like. The Other Party will in any case compensate Rotovia for its losses in full.
In case Rotovia receives an order for the delivery of specially processed or assembled Products for the benefit of the Other Party, the Other Party is obligated to deliver material suitable for the process of processing in sufficient quantities, with a 10% surcharge, on time, free of charge and carriage paid to Rotovia. As long as the Other Party has not fulfilled this obligation, Rotovia will be entitled to suspend its obligations under the Agreement.
The Other Party is liable for the parts or other goods thus made available by it and/or third parties to Rotovia and for their proper applicability. Rotovia may trust, without any due diligence, that these parts, etc. can definitely be used, mounted or processed in, on or to the product to be manufactured or commissioned, unless otherwise agreed in writing.
If said components are delivered late or cannot be processed by Rotovia and this results in a production stoppage, the Other Party will be liable for all ensuing loss or damage suffered by Rotovia.
Rotovia will only be obligated to send a model, sample or example in advance for approval to the Other Party if this has been stipulated in writing by the Other Party upon entering into the Agreement. Rotovia will not start up production of the Product to be manufactured until the model, sample or example provided by Rotovia is approved by the Other Party.
All costs associated with the model, sample or example will be charged separately and are not included in agreed prices unless expressly agreed otherwise.

ARTICLE 5. | MOULDS, AUXILIARY TOOLS

Moulds, auxiliary tools, etc. manufactured by Rotovia or by third parties on behalf of Rotovia will remain the property of Rotovia unless the parties agree otherwise in Writing.
If Rotovia has to manufacture a mould, auxiliary tools, etc., Rotovia will only start the manufacture after the Other Party has paid Rotovia the requested contribution to manufacturing costs for that purpose, unless the parties agree otherwise in Writing. Similarly, Rotovia will not initiate changes, improvements or repairs to moulds etc. until the costs due (estimated, if necessary) determined by Rotovia for this purpose have been settled. If no price has (yet) been expressly agreed for the work, the Other Party will pay Rotovia upon request an advance on the costs to be determined by Rotovia.
Unless otherwise agreed, these moulds and auxiliary tools, for which the Other Party has settled the agreed costs, will be used exclusively for the purposes of orders from the Other Party, provided that the Other Party fulfils its payment and purchase obligations to Rotovia.
However, the moulds, auxiliary tools, etc. referred to in paragraph 2 of this article will be kept by Rotovia if they are not used for production, and need not be returned to the Other Party – and, moreover, only after a written request from the Other Party – until 2 years have lapsed after delivery of and/or payment for the last order of Products manufactured with these moulds, auxiliary tools, etc., placed with Rotovia by the Other Party,
The Other Party is obligated to collect the moulds, auxiliary tools, etc. from Rotovia within three years of delivery of the last order. If this has not been done in time, Rotovia will set a term in Writing within which the items can still be collected. If the Other Party fails to respond in time, the moulds, auxiliary tools, etc. may be destroyed by Rotovia, without Rotovia consequently being obligated to pay any compensation to the Other Party. The Other Party is obligated to pay the costs incurred by Rotovia on account of the destruction.
In cases where the Other Party delivers the moulds, auxiliary tools, etc., these will be returned at its request, but only after all claims of Rotovia, on whatever account, have been paid.
Rotovia excludes its liability for any loss or damage due to loss or absence of or damage to the moulds, auxiliary tools, etc., except in the event of intent or deliberate recklessness of managerial staff of Rotovia. Custody is limited to the duty of care that Rotovia also heeds for its own business. The cost of maintenance and insurance is payable by the Other Party.
Should the exclusion of liability in the previous paragraph fail to hold, compensation will be limited to repair or replacement of moulds, auxiliary tools, etc., to be decided at Rotovia’s discretion.
Insofar as Rotovia has specified on the offer or order confirmation the number of Products for which a mould, auxiliary tool, etc. is normally usable, the mould, auxiliary tool, etc. will be deemed no longer suitable for further production after that number of units or after the production of that number of units respectively. If no specification has been given in conjunction with the quotation or order confirmation, Rotovia will notify the Other Party that a mould, auxiliary tool, etc. is no longer suitable for economically sound production as soon as Rotovia becomes aware thereof. In that case, the Other Party will also be informed of the costs associated with the repair or replacement.
When assessing an economically justifiable production, as referred to in the previous paragraph of this article, the advancement of technology and the company’s adaptation to it, in terms of both volume and labour intensity, should also be considered.
As long as a mould, auxiliary tool, etc. is still suitable for production according to the aforementioned standards and is in Rotovia’s custody, the maintenance costs, including cleaning and adjustment, in case of regular repeat orders for Products to be manufactured with it up to 5,000 items, are payable by Rotovia, unless otherwise agreed in writing. The cost of overhaul of moulds, auxiliary tools, etc. due to normal wear and tear will at all times be borne by the Other Party.
Moulds, auxiliary tools, etc. that are no longer suitable for production according to the aforementioned standards need not be returned by Rotovia and may be destroyed by Rotovia without rendering Rotovia liable for any compensation towards the Other Party.

ARTICLE 6. | TOLERANCES

The Product properties specified, displayed and/or agreed upon may differ on minor points from what is actually delivered. All minor deviations in properties of the Products that the Other Party should reasonably tolerate, such as minor deviations in colours, sizes and numbers, are considered minor points.
Deviations which, taking all circumstances into account, do not reasonably have any or only a minor influence on the utility of the deliverable, will always be deemed deviations of minor importance. The presence of minor deviations does not give the Other Party grounds to suspend its obligations under the Agreement, to cancel or terminate the Agreement in whole or in part, or to claim damages or any other compensation.
In any event, Rotovia will be deemed to have fulfilled its delivery obligations if the weight or quantity of the Products delivered does not deviate from the agreed weight or quantity by more than 10%.

ARTICLE 7. | SERVICES

The Other Party is liable and obligated to provide Rotovia with all data, information and any documents that are important for the preparation and performance of the Services, within a reasonable time, completely and correctly. Rotovia will perform the Services partly on the basis of the data, information and documents provided by the Other Party. If Rotovia executes the Agreement in accordance with incorrect or incomplete data, information or documents provided by the Other Party, this cannot be regarded as a breach on the part of Rotovia. Rotovia is not liable for the consequences in case the information provided by the Other Party proves to be incorrect.
Furthermore, the Other Party must always inform Rotovia immediately of any facts and circumstances that may be relevant in connection with the performance of the Services. The Other Party will take all reasonable measures to optimise the performance of the Services by or on behalf of Rotovia.
The Agreement comprises only those Services to be provided by Rotovia that are expressly agreed upon between the parties. Without prejudice to the possibility of the parties making further arrangements, Rotovia will under no circumstance be obligated to perform services beyond the scope of what was expressly agreed.
Rotovia will perform the agreed Services to the best of its knowledge and ability and in accordance with the requirements of good workmanship. However, insofar as the nature and/or purport of the obligation does not imperatively preclude it, Rotovia only takes on the obligation to perform to the best of its ability.

ARTICLE 8. | PRICES, COSTS AND PAYMENTS

All prices are for delivery ex warehouse or ex factory, including packaging and excluding VAT, unless otherwise agreed. If any costs payable in connection with the agreement – such as freight charges; import and export duties; exchange rates; currency regulations; station, storage, security and clearance charges; taxes or other levies – are introduced or increased after the conclusion of the agreement, these will be borne by the Other Party, as will the consequences of changed exchange rates, unless expressly agreed otherwise.
The Other Party cannot derive any rights or expectations from a cost estimate or budget issued by Rotovia, unless the parties have agreed otherwise in Writing. A budget made known by the Other Party will only count as a (set) price agreed between the parties if this has been expressly agreed in writing. If Rotovia has taken on work without a price having been expressly agreed for it, it will be entitled – without prejudice to the provisions of these general conditions – to charge the Other Party at least the costs incurred/price owed for it by Rotovia.
For goods that Rotovia must deliver at a later date or on call and for goods that Rotovia does not have in stock or only partially in stock upon receipt of the order and which Rotovia enters as express delivery, Rotovia reserves the right, without further notice, to charge the prices and costs applicable at the time of delivery, regardless of prior confirmation.
The parties will set forth in the Agreement the date or dates on which Rotovia will charge the Other Party for the agreed performance. Amounts due will be paid by the Other Party in accordance with the payment terms agreed upon or stated on the invoice. Unless expressly agreed otherwise, payment must be made within 30 calendar days of the invoice date. This is a deadline. However, Rotovia is at all times entitled to demand full or partial advance payment and/or obtain security for payment. The Other Party will not be entitled to suspend any payment nor to set off any amounts due. Rotovia is authorised to deduct from the amounts it owes the Other Party and/or companies affiliated with the Other Party for whatever reason the amounts receivable by Rotovia from the Other Party and/or companies affiliated with the Other Party for whatever reason. This provision is without prejudice to any setoff that Rotovia may be entitled to invoke.
Rotovia is entitled to pass on to the Other Party any price increases of cost-determining factors that occur after the conclusion of the Agreement but before its completion, including changes in the prices of raw materials or in the Products themselves to be delivered in connection with rising material or manufacturing costs, in wages, in exchange rates, in import duties, transport costs, energy costs, etc.
The Other Party must check an invoice for accuracy within 10 business days of receipt and – to the extent applicable – dispute the accuracy of the invoice within this period with reasons. After expiration of the specified period, the Other Party’s right to dispute the accuracy of the invoice lapses. If the Other Party disputes the accuracy of the invoice within the aforementioned period, this does not suspend the payment obligation.
In case of liquidation, bankruptcy or moratorium of the Other Party, the claims against the Other Party will be immediately exigible. If the Other Party defaults on any payment or if circumstances arise that worsen the Other Party’s financial position or affect its creditworthiness, all other claims of Rotovia against the Other Party will simultaneously become exigible. Rotovia will then be entitled to cancel the Agreement or to require security or payment for delivery of Products or as the Service is provided or, after prior written notice to the Other Party, to suspend the provision of other Services or delivery of Products until the moment of full payment or change in the aforementioned circumstances.
If timely payment is not made, the Other Party will be in default by operation of law without any demand or notice of default. From the day that the Other Party’s default commences, the Other Party will owe interest of 1.5% per month on the outstanding amount including taxes, with part of a month being considered a full month. In case of late payment, Rotovia may also require a one-time fee of 5% of the invoice amount to compensate for the administrative costs incurred. The amount will be reduced if the Other Party can demonstrate that the actual costs incurred are lower than the lump-sum amount referred to in the previous sentence.
If the Other Party continues to fail to pay the claim after a demand for payment or notice of default, Rotovia may pass on the claim for collection and, in addition to the total amount then owed, the Other Party will also be obligated to reimburse all reasonable and actual costs incurred, such as court costs (court registry fees), extrajudicial plus execution and collection costs, including the actual costs of a bailiff, collection agency or lawyer, costs calculated by external experts, etc. incurred to obtain the amounts owed by the Other Party.
If, under the Agreement, the Other Party consists of multiple natural persons and/or legal entities, each of those natural persons and/or legal entities is jointly and severally liable to Rotovia for compliance with the agreement.
With respect to the performances rendered by Rotovia and the amounts owed for them by the Other Party, the data from Rotovia’s records constitutes full proof, without prejudice to the Other Party’s right to provide evidence to the contrary.
If there is a reasonable suspicion that the Other Party’s financial position gives cause to do so, Rotovia will at all times be entitled to require advance payment or cooperation in the provision of security for payment of the purchase price within 10 working days of Rotovia’s request to that effect. This term is a deadline. Rotovia will at all times be entitled and is hereby irrevocably authorised by the Other Party to perform further juristic and other acts necessary for pledging claims or goods of the Other Party (expressly including the confirmation or pledging by authentic or registered private deed) and also to act on behalf of the Other Party in doing so. In the interim, Rotovia is entitled to suspend performance of the work until the requested payment/security has been made/provided. If within 10 business days after the request to make payment/provide security this request has not been complied with, the Other Party will be in default by operation of law and the Agreement may be cancelled by Rotovia in writing without judicial intervention. The Other Party will then be liable for all costs, loss or damage and loss of profit arising from the Agreement and from the premature termination. Rotovia will be entitled to determine to which debts payments will be allocated, but in any case payments will first serve to reduce interest and costs incurred by Rotovia.

ARTICLE 9. | THIRD PARTIES

Rotovia is always entitled to involve third parties in the execution of the Agreement.
The applicability of Articles 7:404 and 7:407 (2) of the Civil Code is excluded. (check article..)
Except in the event of intent or deliberate recklessness on its part, Rotovia will under no circumstance be liable for any loss or damage arising from breaches by third parties involved in the execution of the Agreement.

ARTICLE 10. | DELIVERY OF PRODUCTS

Delivery of the Products will take place at the location and in the manner agreed upon, failing which Delivery will take place under the delivery condition Ex Works, as referred to in the Incoterms 2020. The Other Party will bear the costs and risk associated with the Products from the moment they leave the warehouse or factory, and must take out appropriate insurance for that risk.
If Rotovia ships the Products at the request of the Other Party, the risks associated with transport will be borne by the Other Party, regardless of who is responsible for the costs of transport/freight.
If Rotovia is fully or partially liable for transport costs, Rotovia will be entitled to designate the route of the shipment as well as the method of shipment. If the Other Party desires another route and/or method of shipment and Rotovia complies with that request, the Other Party will bear the difference in costs between the method of shipment or route desired by it and the method of shipment or route designated by Rotovia.
Rotovia is free to choose efficient packaging and shipping. If it has been agreed in writing that the Other Party makes packaging available to Rotovia, the Other Party will ensure the timely delivery of this packaging in sufficient quantities and the right quality. The Other Party bears and continues to bear the risk associated with this packaging. The Other Party will be fully liable for any loss or damage. At Rotovia’s request, the Other Party will collect the packaging. The Other Party itself is responsible for disposing of non-reusable packaging.
Rotovia reserves the right to deliver orders in parts, unless this cannot reasonably be required of the Other Party.
The risk of loss of and damage to the Products will pass to the Other Party at the time the Products are received by or on behalf of the Other Party, unless otherwise agreed between the parties.
If the agreed delivery period is exceeded, the Other Party will under no circumstance be entitled to refuse to take delivery of the Products, to refuse to pay the agreed price or to cancel the Contract.
If the Products could not be delivered due to a circumstance attributable to the Other Party, Rotovia will store the Products at the Other Party’s expense and risk, without prejudice to the Other Party’s obligation to pay the agreed price.
In the event that the Other Party refuses to take delivery of the Products or is otherwise negligent in taking delivery of the Products, the Other Party will, at Rotovia’s request, notify Rotovia within which term the Products will then be taken delivery of. This period will never exceed one month from the day of the request referred to in the previous sentence. Rotovia is authorised to cancel the Agreement if after expiry of the term referred to in the previous sentence, the Other Party has still failed to take delivery of the Products, without prejudice to the Other Party’s obligation to pay the agreed price and costs for storage of the Products.
If for the purposes of paragraphs 7, 8 or 9 Rotovia incurs reasonable costs that would not have arisen if the Other Party had properly fulfilled its obligations referred to there, these costs will also be borne by the Other Party. Costs will be assessed at a flat rate of 2% of the invoice value of the relevant Agreement for each full week of delay, unless the actual costs are higher in which case Rotovia will be entitled to compensation for the actual costs. This amount will be reduced if the Other Party can demonstrate that the actual loss suffered is less than the aforementioned lump sum. Rotovia’s other claims will remain intact.

ARTICLE 11. | TERMS

Rotovia will make reasonable efforts to heed as much as possible the (delivery) terms and/or (delivery) dates mentioned by it or agreed between the parties, be they deadlines or not. Interim (completion) dates mentioned by Rotovia or agreed between the parties are always target dates, do not bind Rotovia and are always indicative in nature.
If any term is about to be exceeded, Rotovia and the Other Party will consult to discuss the consequences thereof for the further planning. If any term is exceeded, the Other Party will under no circumstance be entitled to compensation for any loss, howsoever named, nor will this give the Other Party grounds for termination or cancellation of the Agreement. Rotovia excludes all liability for the consequences of exceeding a specified term.
In all cases – therefore also if parties have agreed on a final (delivery) term or (completion) date – Rotovia will only be in default due to time overrun after the Other Party has given it notice of default in writing, with the Other Party giving Rotovia a reasonable grace period within which to remedy the breach (in what was agreed) and this reasonable period has lapsed. The notice of default must contain as full and specific a description of the breach as possible so that Rotovia can respond adequately.
If it has been agreed that performance of the agreed work will take place in phases, Rotovia will be entitled to postpone the start of the work associated with a phase until the Other Party has approved the results of the preceding phase in writing.
If a delivery on call is to be made, the Other Party is obligated to send this call in Writing to Rotovia at least 4 weeks prior to the delivery to be made, giving a precise description and stating the date. Any changes requested by the Other Party after a call will only be accepted by Rotovia if this and the associated conditions are expressly agreed upon.
Rotovia is not bound by a deadline, (completion) date or (delivery) term if the parties have agreed on a change in the content or scope of the Agreement (additional work, change in specifications, etc.) or a change in the approach to the execution of the Agreement, or if the Other Party fails to fulfil its obligations under the Agreement or fails to do so on time or in full. The fact that (the demand for) additional work arises during the execution of the Agreement will under no circumstance be reason for the Other Party to terminate or cancel the Agreement.

ARTICLE 12. | RETENTION OF TITLE

Rotovia retains the title to all Products delivered and Products yet to be delivered by it to the Other Party under any Agreement until the price for all such Products under any Agreement has been paid in full. If Rotovia also performs or will perform work (Services) for the benefit of the Other Party to be paid for by the Other Party under this Agreement/these Agreements, the aforementioned retention of title will apply until the Other Party has also paid these amounts due to Rotovia in full. The retention of title also applies to the amounts that may become payable to Rotovia by the Other Party on account of the Other Party’s breach of one or more of its obligations to Rotovia under the aforementioned Agreements.
All Products delivered and to be delivered by Rotovia will remain its property until the Other Party has duly fulfilled all its obligations under the Agreement, including in any case full payment of the claims for interest and judicial and extrajudicial costs referred to in Article 3:92 paragraph 2 of the Dutch Civil Code. If, after delivery of the Products to the Other Party by Rotovia, the Other Party has fulfilled its obligations, the retention of title with respect to these Products will revive if the Other Party fails to fulfil its obligations under a subsequent Agreement concluded.
Rotovia remains the owner of the Products delivered. Processing and operations are always performed for Rotovia as the manufacturer, but without any obligation on its part. If Rotovia loses its title through a combination process, it is hereby agreed that the Other Party’s title to the integrated item will pass to Rotovia in proportion to its value (invoice value). The Other Party will secure Rotovia’s title free of charge.
If the Other Party has Products in its possession for which Rotovia can exercise retention of title, the Other Party is obligated to hand over the Products to Rotovia at Rotovia’s request, without any court intervention being required. The Other Party is obligated to keep the Products delivered under retention of title with due care and as recognisable property of Rotovia.
The Products subject to retention of title may under no circumstance be pledged or otherwise provided as security to third parties, including hire-purchase and/or hire-sale, nor may the Products be sold or disposed of in any way or encumbered or moved to a location other than agreed. Notwithstanding the previous sentence, the Other Party is entitled to process and sell Products under retention of title in the normal course of business, provided that the Other Party is not in default towards Rotovia.
The retention of title may be exercised at the Other Party’s expense and risk. The Other Party will treat the Products referred to in this article with due diligence. It will insure the Products against all contingencies based on the invoice value. The Other Party will provide Rotovia with names and addresses of insurers and copies of policies at Rotovia’s request. Furthermore, at Rotovia’s request, the Other Party will, insofar as it has not already occurred by operation of law, establish an undisclosed pledge for the benefit of Rotovia on its pertinent claims against the insurer.
Claims arising in respect of Products under retention of title (including the balance of all current account receivables) as a result of resale or on any other legal basis (insurance, unlawful act) are hereby transferred in full by the Other Party to Rotovia as security. Rotovia grants the Other Party a revocable power of attorney to collect the claims transferred to Rotovia at its expense in its own name. This executory power can only be revoked if the Other Party fails to fulfil its payment obligations duly. At Rotovia’s request, the Other Party will disclose the assignment and provide Rotovia with the necessary information and data.
The Other Party is obligated to notify Rotovia immediately of the fact that third parties assert rights to Products that are subject to Rotovia’s retention of title under this article.
In cases of overdue acceptance and/or improper fulfilment of the Other Party’s obligations as well as if the Other Party applies for a moratorium or is declared bankrupt at its own request or at the request of a third party or if its movable and/or immovable property or other goods are seized in any way, as well as if the Client shuts down or is about to shut down its business or approaches its creditors in connection with a debt restructuring/repayment schedule, or if Rotovia may reasonably assume that any of the aforementioned situations will arise in the very near future, Rotovia will be entitled to notify the Other Party thereof in writing, to suspend any further delivery of Products or Services, to suspend any payments as well as to cancel any Agreement concluded with the Other Party in full or in part by means of a single written notification to the Other Party, without prejudice to the rights vested in Rotovia, such as the right to full compensation and/or repossession of Products. The Other Party agrees to this in advance and herewith grants Rotovia access to its premises to provide for that situation and allow Rotovia to take back the Products delivered by Rotovia but not yet paid for. Rotovia’s claim against the Other Party will become fully and immediately exigible in all the above cases.
The aforementioned provisions do not affect the other rights vested in Rotovia.

ARTICLE 13. | WARRANTY

Subject to the provisions elsewhere in these general conditions, in the case of Products manufactured by or on its behalf, Rotovia guarantees both the soundness of the Products delivered by Rotovia and the quality of the material used for them in the sense that, in the case of specified Products, the soundness of the specification must be defined in advance. In cases of delivery of products manufactured by third parties, of which Products from Rotovia form part, Rotovia only guarantees that the Products delivered comply with what was agreed between the parties in terms of specification and materials.
Defects to moulds and Products produced therewith, which the Other Party proves have arisen within 4 weeks, calculated from the day of shipment, exclusively or predominantly as a direct consequence of an inaccuracy in the construction designed by Rotovia or as a result of faulty workmanship or use of bad material, will be repaired by Rotovia. Rotovia is not obligated to pay any further compensation for any direct or indirect loss or damage suffered by the Other Party or by any third party.
The warranty provided in paragraphs 1 and 2 of this article does not apply in the case of:

a. defects resulting from the unsoundness of materials and/or parts made available or prescribed by the Other Party;

b. defects resulting from improper use or negligence by/on the part of the Other Party or its staff;

c. defects due to normal wear and tear, improper handling, extraordinary stress or use of unsuitable operating equipment and corrosive chemicals;

d. modifications of moulds performed outside our order by third parties.

ARTICLE 14. | RESEARCH AND COMPLAINTS

Rotovia warrants that the Products and Services comply with the Agreement, the specifications stated in the offer and the reasonable requirements of soundness and/or usability under circumstances of normal use. Any further form of warranty is excluded.
The Other Party must examine or have a third party examine at the time of receipt of the Products and/or Services whether they comply with the Agreement, in terms of both quality and quantity. Complaints about the quantity delivered and visible defects must be made immediately after the Other Party could reasonably have examined the Products, but must be received within 5 working days of delivery of the Products. This also applies to defects that the Other Party could reasonably have discovered. In the absence of a timely complaint, the quantity and quality stated on the waybill, delivery note or similar document will be deemed accepted as correct by the Other Party.
All complaints about any incorrect execution of orders, or about the quality of the Products delivered or the Service, must also be made in Writing within 5 days of delivery or execution. Defects that were not immediately visible upon delivery or execution, even after said examination, must be reported in Writing to Rotovia as soon as the Other Party discovers them.
When the terms mentioned in paragraphs 2 and 3 of this article have lapsed, the Other Party will be deemed to have fully accepted the delivery. Hence complaints filed beyond these terms need no longer be considered by Rotovia. If research and/or repair costs are incurred in connection with an unfounded or late complaint, these costs will be borne by the Other Party.
Complaints will not be considered if the Other Party has continued to default in any way on its obligations to Rotovia that have arisen up to that point.
If the Other Party fails to make a complaint on time, no obligations whatsoever will arise for Rotovia from such a complaint from the Other Party. In that case, the Other Party can no longer claim any form of repair, replacement, compensation and/or refund in respect of such a failure or defect.
The burden of proof of a timely complaint falls on the Other Party. The Other Party will be able to prove the correctness of its claim only on the basis of the Products/Services, while furthermore the Other Party must prove that these Products are the same as those delivered by Rotovia and are in the same condition as when they left the warehouse or factory of Rotovia or the warehouse or factory of third parties.
Even if the Other Party complains in a timely manner, the Other Party will still be obligated to pay and fulfil the remainder of the Contract. Any complaints of whatever nature do not suspend the Other Party’s payment obligation.
If a timely claim has been filed and after it has been proven that the Products delivered show material or manufacturing defects for which Rotovia is liable, Rotovia will, at its discretion, either provide for free repair or full or partial redelivery free of charge. To this end, Rotovia may refer the Other Party to a manufacturer or supplier. In addition, Rotovia has the option of taking back the Products delivered and crediting the invoice value to the Other Party. Rotovia is under no other obligations, in particular not to compensate for any loss.
If Rotovia agrees with the Other Party to return Products based on the provisions of this article, the Other Party must return the Products as soon as possible. Products can never be returned without the prior Written consent of Rotovia. If refunds are made for amounts already paid in advance, Rotovia will refund such amounts within 30 days of receipt of the Products.
Manufacturers and/or suppliers may offer their own warranties. These warranties are not offered by Rotovia. However, if Rotovia chooses to do so, it can mediate in the invocation of these warranties by the Other Party.

ARTICLE 15. | LIMITATION OF LIABILITY

1. Rotovia will under no circumstance be obligated to pay any compensation whatsoever, hence also not in the case of force majeure, complaints, breach of any obligation under an Agreement, wrongful act, incorrect advice, etc. In particular, but not exclusively, Rotovia will not be liable:

– When the Other Party has had changes made to the Product by a third party or has processed the Product;

– If the Other Party ignores certain user instructions given by Rotovia in connection with the Product and/or Service, in particular processing and/or installation instructions, or if it uses accessories or spare parts not originating from Rotovia or not prescribed by Rotovia without Rotovia’s Written consent;

– If the Other Party does not use the Product for its contractually intended purpose or for its normal purpose, does not assemble it faultlessly or does not commission the Product properly according to the state of the art or current scientific knowledge;

– for any loss or damage resulting from negligence by the Other Party.

2. To the extent that it is ruled in court that the aforementioned complete exclusion of liability cannot be upheld, the following applies:

– the amount to be paid by Rotovia in respect of compensation would (could) never be higher than that for which the liability insurance taken out by Rotovia gives entitlement to payment, plus the amount of the excess that, pursuant to the applicable insurance agreement in the case in question, is payable by Rotovia, subject to the following provisions:

– the amount to be paid by Rotovia/the insurer in respect of compensation can under no circumstance exceed the amount stated in the invoice in respect of the relevant Product(s)/service provided, i.e. also in the event that the Other Party cannot claim payment from Rotovia’s liability insurer, subject to the following provisions:

– Rotovia will at most and exclusively be liable to a maximum amount of €10,000 in total, with liability for the consequences of death, personal injury or damage to health being limited to an amount of €50,000.

In all cases, however, the following will apply:

– Rotovia will under no circumstance be liable for indirect loss, consequential loss, immaterial loss, trading loss, environmental loss, loss due to loss of profit, lack of commercial success, or loss due to liability towards third parties;

– Rotovia will under no circumstance be liable for the consequences of intent or deliberately reckless acts by its legal representatives and/or its staff members and/or employees working for Rotovia;

– Rotovia will under no circumstance be liable for acts or omissions of its legal representatives and/or its staff members and/or employees working for Rotovia, in the performance outside their duties;

– Rotovia will under no circumstance be liable for any loss resulting from circumstances that Rotovia could not avoid even by exercising the utmost care and the consequences of which Rotovia could not avert;

– Rotovia will also only be liable for the loss of data and programs, or for their recovery, within the limits set forth in this article and only to the extent that such loss could not be avoided by the Other Party taking reasonable precautions, in particular making daily backup copies of all data and programs for accuracy control purposes.

3. All further liability of Rotovia is excluded, unless mandatory law provides otherwise.

4. If Rotovia has ordered certain raw materials for its Products from one or more third parties and one or more of these third parties has delivered raw materials to Rotovia that deviate on one or more counts from what Rotovia has ordered, Rotovia, in case of use of these raw materials for its Products, will likewise under no circumstance whatsoever be liable for the loss or damage that has arisen or may arise therefrom and/or as a result thereof to the Other Party and/or its buyers. The Other Party will in such cases never be able and permitted to hold Rotovia to account for reasons of product liability under Articles 6:185 ff. of the Dutch Civil Code. The Other Party will also indemnify Rotovia in the event of such loss or damage for all claims by its buyers against Rotovia under Articles 6:185 ff. of the Civil Code.

5. The Other Party indemnifies Rotovia against all claims for compensation of any loss or damage from third parties under an Agreement formed between the parties.

6. The Other Party will bear the loss or damage caused by inaccuracies and incompleteness in the information provided by the Other Party, a breach of the Other Party’s statutory or contractual obligations, as well as any other circumstance not attributable to Rotovia.

7. Insofar as these general conditions do not provide otherwise, all rights of action and other powers of the Other Party for whatever reason vis-à-vis Rotovia will in any event lapse after one year from the moment the Other Party became aware or could reasonably have become aware of the existence of the rights and powers.

ARTICLE 16. | FORCE MAJEURE

Rotovia is not obligated to fulfil any obligation under the Agreement if and for as long as it is hindered from doing so by a circumstance that is not attributable to it under the law, a juristic act or generally accepted standards.
Force majeure on the part of Rotovia includes: strike, lockout or labour disputes, fire, flood, storm, war, military action, insurrection, terrorism, the effects of an epidemic and/or pandemic, explosion, material failure or malfunction of plant, machinery or software, material lack or shortage of electricity, power failure, internet failure, data network or telecommunication facilities failure, (cyber) crime, force majeure on the part of Rotovia’s suppliers, failure to properly fulfil obligations of suppliers prescribed to Rotovia by the Other Party, government measures, (cyber) vandalism and (general) transport and mobility problems, including failures in Rotovia’s business, or in the supply of products, materials, raw materials or resources, as well as if circumstances occur as a result of which delivery becomes unreasonably onerous and/or disproportionate for Rotovia
In the event of force majeure, Rotovia is entitled either to suspend delivery for a reasonable period to be determined by Rotovia, or – either after expiry of the reasonable period indicated or immediately – to cancel the Agreement, without judicial intervention, by means of a duly reasoned statement in writing, without the Other Party being able to derive any claim to compensation for any loss suffered by it. If this involves partial performance, the Other Party will owe the costs incurred by Rotovia and/or a proportional part of the total price, naturally in return for delivery of the Products manufactured by Rotovia.
Rotovia excludes any liability for direct or indirect loss or damage, howsoever named, for the Other Party or for third parties due to suspension or cancellation as a result of the force majeure referred to in paragraph 2.

ARTICLE 17. | SUSPENSION AND CANCELLATION

If the circumstances so warrant, Rotovia is authorised to suspend the execution of the Agreement or to cancel the Agreement in whole or in part with immediate effect, if and insofar as the Other Party fails to fulfil its obligations under the Agreement and under these general conditions or fails to do so duly, or circumstances come to the knowledge of Rotovia after the Agreement has been concluded, giving Rotovia reason to fear that the Other Party will not fulfil its obligations.
If the Other Party is in a state of bankruptcy, the Natural Persons Debt Rescheduling Act has been declared applicable to it, has applied for a moratorium, any attachment has been levied on its property or in cases where the Other Party is not able to freely make use of its assets in any other way, Rotovia will be entitled to cancel the Agreement in whole or in part with immediate effect, insofar as the Other Party has not yet provided sufficient security for the payment(s).
Furthermore, Rotovia will be entitled to cancel the Agreement in whole or in part if and insofar as circumstances arise of such a nature that compliance with the Agreement is impossible or Rotovia cannot reasonably be required to maintain it without any modifications.
The Other Party will never claim any form of compensation in connection with the right of suspension and cancellation exercised by Rotovia pursuant to this article.
Insofar as this can be attributed to it, the Other Party is obligated to compensate Rotovia for the loss or damage suffered by Rotovia as a result of the suspension or cancellation of the Agreement.
If Rotovia cancels the Agreement pursuant to this article, all claims against the Other Party will be immediately exigible.

ARTICLE 18. | DATA PROCESSING UNDER GDPR

If the Other Party makes personal data available to Rotovia as required for the execution of the Agreement, the Other Party remains the data controller as referred to in the General Data Protection Regulation (GDPR).
The Other Party guarantees Rotovia and its suppliers and subcontractors that those involved in data processing within the meaning of the GDPR have given their consent for the intended processing of their personal data, or that they may otherwise be lawfully processed as provided in GDPR Article 6 and/or Article 9. By entering into the Agreement, Rotovia is deemed to have been instructed to perform those data processing operations that are reasonably required for the proper execution of the Agreement. Otherwise Rotovia will only process the personal data in accordance with the instructions of the Other Party.
By entering into the Agreement, the employees of Rotovia as well as third parties (auxiliary persons) engaged by Rotovia who are involved in the execution of the Agreement are authorised to process the personal data under the Agreement on behalf of Rotovia. Rotovia will ensure appropriate non-disclosure agreements with these employees and third parties to this end.
In its capacity as processor, Rotovia will comply with the obligations arising from relevant laws and regulations, including the GDPR. More specifically, it will ensure that reasonable technical, organisational and legal measures are taken to protect personal data. Rotovia will provide the Other Party or any parties involved with an explanation regarding these measures upon request. Rotovia will also provide all cooperation reasonably required of it in order to enable the Other Party to comply with its obligations under the GDPR towards data subjects.
In the unlikely event of a personal data breach (’data breach’) within the meaning of the GDPR, Rotovia will provide all cooperation reasonably required of it to enable the Other Party to comply with its reporting obligation. The Other Party will in turn provide Rotovia with all reasonable cooperation required of it to limit or remedy the consequences of a data breach and to prevent a future data breach. To that end, Rotovia may in any case require the Other Party to cooperate in an immediate reset of passwords, the tightening of existing security measures and the introduction of new security measures.
The Other Party will indemnify Rotovia against all third-party claims relating to the Agreement between Rotovia and Other Parties/or the data processed by the Other Party under the Agreement that may be brought against Rotovia due to a violation of the GDPR and/or other relevant data protection laws and regulations not attributable to Rotovia.
Upon completion of the Agreement, Rotovia will destroy, on behalf of the Other Party, the personal data obtained by Rotovia for the purposes of the Agreement, unless the Other Party disputes the service provided.
Rotovia and the Other Party will separately record their mutual rights and obligations in a processing agreement.

ARTICLE 19. | CONFIDENTIALITY

If a separate confidentiality or non-disclosure agreement is in place, it will form an integral part of the Agreement between Rotovia and the Other Party. If no such separate agreement exists, the following applies: all materials, Products and/or software manufactured by Rotovia and the information contained therein that is designated as confidential (with the exception of information expressly designated as being designed for public use or required to be disclosed by an order of a court or another authority) will be communicated in confidence to the Other Party and will be treated by it as confidential with due business care. The Other Party may disclose such information only to its employees or parties that are obligated to protect confidential information pursuant to their contractual obligations to the Other Party. The Other Party will not disclose confidential information without a time limit.
The Other Party will maintain confidentiality with respect to all information, specifications, all business information and know-how concerning and originating from Rotovia made available to the Other Party for the execution of the Agreement. Upon request, the Other Party must promptly transfer the confidential information as well as all copies or other multiplications thereof to Rotovia.
In case of any breach of the provisions of the previous paragraph of this article, the Other Party will owe Rotovia, without any notice of default being required, a lump-sum penalty of €50,000 per breach plus €5,000 per day that the breach continues with a maximum of €100,000, without prejudice to Rotovia’s right to claim compliance and/or full compensation including interest and costs. Any penalty paid or due will not be deducted from any compensation due including interest and costs. Rotovia hereby expressly deviates from the provisions of Article 92(2) of Book 6 of the Civil Code with the Other Party.

ARTICLE 20. | INTELLECTUAL PROPERTY

In case of manufacture by Rotovia of Products according to drawings, samples, models or other instructions in the broadest sense of the word, received from the Other Party or through it from third parties, the Other Party guarantees that Rotovia’s manufacture and/or delivery of those Products and/or Services does not infringe any form of intellectual property rights of third parties and the Other Party fully indemnifies Rotovia against all claims and costs arising therefrom. If a third party objects to the manufacture and/or delivery on the basis of any asserted right as referred to above, Rotovia is definitely and solely on that basis entitled to cease the manufacture and/or delivery immediately and to require the Other Party to reimburse the costs incurred, without prejudice to Rotovia’s claims to any further compensation, without Rotovia being obligated to pay the Other Party any compensation. Rotovia will notify the Other Party if third parties raise objections to the manufacture and/or delivery of Products and/or Services intended for it. The Other Party is obligated to support Rotovia to the best of its ability in the defence of claims on account of infringement of intellectual property rights.
If intellectual property rights arise in the execution of the Agreement, the intellectual property rights will be vested in Rotovia. Insofar as the intellectual property rights are conferred upon the Other Party by law, the Other Party will transfer these intellectual property rights to Rotovia in advance and, if necessary, the Other Party will lend its cooperation to this transfer and will furthermore grant Rotovia a power of attorney in advance with which Rotovia may undertake everything that is necessary so that the intellectual property rights will be conferred upon it. To the extent permitted by law, the Other Party waives any personality rights that remain vested in the Other Party.
If Rotovia grants the Other Party a right of use, this will always be on the basis of a non-exclusive and non-transferable license, which is limited to the agreed use.
The Other Party is expressly prohibited from modifying or otherwise adapting the intellectual property belonging to Rotovia, also associated with the Products. The Other Party is permitted to affix its own trademarks to the Products only with the prior Written consent of Rotovia.
The Other Party is liable for any loss or damage caused by infringement of Rotovia’s intellectual property rights, committed by means of the Products and/or Services delivered to it by Rotovia. The Other Party is obligated to notify Rotovia immediately as soon as it becomes aware of any infringement of these rights. If the Other Party discontinues the use of the Product and/or Service in order to limit the loss or damage or for any other good reason, it will be obligated to notify the third party that the discontinuation of use does not constitute acknowledgement of an infringement of intellectual property rights.
For any of the provisions stipulated in paragraphs 1 through 5 of this article are infringed, the Other Party will owe Rotovia for each breach, without any notice of default being required, a lump-sum penalty of €50,000.00 plus €5,000 per day that the breach continues with a maximum of €100,000, without prejudice to Rotovia’s right to claim full compensation including interest and costs. Any penalty paid or due will not be deducted from any compensation due including interest and costs. Rotovia hereby expressly deviates from the provisions of Article 92(2) of Book 6 of the Civil Code with the Other Party.

ARTICLE 21. | EXPORT CONTROLS

In view of U.S. and other export regulations (in particular European and Dutch), the Other Party undertakes, at its own expense, to obtain all necessary export permits and/or other documents before exporting Products or technical data received from Rotovia. To this end, the Other Party undertakes towards Rotovia to comply with all applicable export regulations. Execution of the Agreement is subject to all necessary export approvals having been granted and the absence of any other impediments to performance caused by Dutch, European or any other relevant export control regulations.
1. The Other Party undertakes not to sell, export, re-export, deliver or otherwise transfer Products or technical data directly or indirectly to any person, company or country if this would violate U.S. or other European or Dutch laws or regulations. The Other Party undertakes to inform all recipients of Products or technical data of the need to comply with these laws and regulations. Denial of an export licence will not entitle the Other Party to cancel the Contract or claim damages.

ARTICLE 22. | APPLICABLE LAW AND CHOICE OF FORUM

Dutch law applies exclusively to all offers and quotations made by Rotovia, to these general conditions, and to all Agreements entered into between Rotovia and the Other Party and the execution thereof as well as to agreements resulting therefrom. The applicability of the Vienna Sales Convention is expressly excluded.
The parties will not resort to a court of law until they have attempted to settle the dispute by mutual agreement to the best of their ability.
Any disputes that may arise between Rotovia and the Other Party will be brought solely before the competent court in the district where Rotovia has its registered office. However, Rotovia will always remain authorised to sue the Other Party before the court with jurisdiction under the law or the applicable international treaty.