Last Updated: October 2018
1. Definitions
1.1 In this document, the following terms will be understood to have the meanings assigned to them below
a. "UNITO" means UNITO Smart Technologies Ltd., a company incorporated under the laws of Hong Kong, registered with the Commercial Register under number 2311788, with corporate seat at Unit 01,35/F, Cable TV Tower, 9 Hoi Shing Road, Tseun Wan, N.T., Hong Kong;
b. "product" or "products" means kitchen and other home electric products and all related products in the broadest sense offered or supplied by UNITO;
c. "Customer" means each natural person (in the course of his business) or legal entity, who or which places an order for the supply of products.
2. Applicability
2.1 These terms apply to all quotations of UNITO and/or to all agreements concluded with UNITO, as well as the performance of such.
2.2 These terms are applicable to the exclusion of any terms used by the Customer or a potential Customer.
2.3 The Customer may only rely on conditions which differ from these terms if and in so far as these have been accepted in writing by UNITO.
3. Quotations, orders and contracts
3.1 All quotations by UNITO are free of engagement. Orders and acceptances of quotations by the Customer are irrevocable.
3.2 UNITO is only bound if it has confirmed acceptance of the order in writing or has commenced execution.
3.3 Any inaccuracies or alleged inaccuracies in UNITO's order confirmation should be communicated to UNITO in writing within 2 days of the date of the confirmation, failing which the order confirmation will be considered to be an accurate and complete representation of the agreement and the Customer will be bound to it.
3.4 Verbal undertakings or agreements by or with its staff bind UNITO only after and in so far as UNITO has confirmed this in writing.
3.5 These general terms are applicable in full to any changes in the contract.
4. Conformity
4.1 Indications of quantities, quality, performances and/or other characteristics relating to UNITO's products are prepared with as much care as possible, but UNITO cannot guarantee that deviations will not occur. These indications must therefore be considered approximations and are not binding. The Customer should check conformity with quantities, quality, performances and/or other characteristics stated by or agreed with UNITO when the products are taken possession of.
4.2 Illustrations, descriptions, catalogues, advertising material and quotations do not bind UNITO.
4.3 The Customer must make certain that the products to be ordered and/or ordered by him and the associated packaging, labelling and other information comply with all the regulations laid down in this respect by the authorities in the country of destination. The use of the products and their conformity with the government regulations is at the risk of the Customer.
5. Data and indemnity
5.1 The Customer guarantees the correctness, completeness and reliability of the data and information supplied to UNITO by him or on his behalf. UNITO is only obliged to (continue) to execute the order if the Customer has provided all the data and information reasonably required by UNITO. Furthermore, if data necessary for performance of the contract is not available to UNITO, or is not available on time or in accordance with the agreements, or if the Customer fails to fulfil his obligations in some other way, UNITO has the right to charge for the costs incurred as a result in accordance with its usual rates.
5.2 If an order has to be executed according to designs, drawings or other instructions from the Customer, UNITO will charge the Customer a separate price for this, unless otherwise agreed in writing.
5.3 The Customer will indemnify UNITO as well as UNITO employees for claims by third parties, including UNITO employees, who suffer loss or harm in connection with performance of the contract as a result of the actions of the Customer or his failure to act, the incorrectness or incompleteness of data or information supplied by or on behalf of the Customer and/or unsafe situations in his firm or organisation.
6. Descriptions, models and resources
6.1 Quotations issued by UNITO, as well as drawings, calculations, descriptions, models, recommendations, specifications and other information produced or supplied by UNITO, tools, designs, lists of materials, (test) products, (test) equipment or (test) software made available by UNITO remain the property of UNITO, irrespective of whether the cost of them is charged to the Customer.
6.2 The copyright and/or other intellectual property rights in all items, recommendations etc., as referred to in clause 6.1, which are produced by UNITO, whether or not on behalf of the Customer, or which are supplied to the Customer, belong to UNITO.
6.3 The items, recommendations etc. referred to in clauses 6.1 and 6.2 may not be copied or made public in full or in part without the prior written approval of UNITO and may not be shown to third parties, made available, disposed of or mortgaged, except with the prior written approval of UNITO.
6.4 UNITO retains the exclusive right in the information which is contained in the items, recommendations etc. referred to in clauses 6.1 and 6.2, even if the cost of them has been charged to the Customer.
7. Consultancy
7.1 UNITO shall try to the best of its ability to achieve the results intended with its recommendations, calculations, drawings and other information supplied, but it does not give any guarantee of this. All recommendations made by UNITO and also all calculations, drawings and other specifications or information supplied by UNITO (for example, concerning qualities, capacities and/or results) are therefore completely free of engagement and are supplied by UNITO by way of non-binding information.
7.2 UNITO is not liable for any direct or indirect loss or damage, in any form and for any reason whatsoever, arising out the advice and/or information referred to in clause 7.1, except in the case of intent or gross fault by UNITO. The Customer indemnifies UNITO for all claims by third parties in this respect.
7.3 The Customer will treat all recommendations, calculations, drawings, quotations and other information supplied by UNITO as strictly confidential and will only use them for the purpose for which the recommendations, calculations, drawings, quotations and/or other information is intended.
7.4 The Customer is not permitted to copy, record or make public the content of recommendations, calculations, drawings, quotations and/or other information supplied by UNITO without the prior written permission of UNITO, or in any other way to make them available to third parties, inform third parties of them or to offer them any such opportunity.
8. Intellectual property
8.1 All intellectual and industrial property rights relating to the products and the design thereof, software of UNITO, items developed, manufactured or issued and/or used by UNITO during the performance of the agreement, including quotations, drawings, packagings, manuals, advertising material and images, as well as all results, including goods, resulting from the services are vested in UNITO, unless otherwise agreed in writing.
8.2 The Customer is prohibited from removing or changing any indication relating to copyright, trade marks, trade names or other rights of intellectual or industrial property relating to the products, software and/or other items of UNITO, unless otherwise agreed in writing.
8.3 UNITO guarantees that the products supplied by it do not as such infringe intellectual property rights of third parties. If UNITO nevertheless has to acknowledge that or if a court finds in a final and conclusive judgment in a legal action against UNITO that products supplied by UNITO do in fact infringe intellectual property rights of third parties, then UNITO will replace the goods concerned with products which do not constitute an infringement, or acquire a licence right under the intellectual property right concerned, or take back the products concerned subject to repayment of the price paid for them, less the depreciation regarded as usual, at the option of and solely at the discretion of UNITO. In that case, UNITO does not owe the Customer any further compensation and is not obliged to indemnify the Customer in this respect in legal or other proceedings.
8.4 If an order has to be executed in accordance with designs, drawings or other instructions from the Customer, the Customer guarantees that this does not result in an infringement of the intellectual or industrial property rights or other rights of third parties. The Customer indemnifies UNITO for all claims of third parties resulting from an infringement of their intellectual or industrial property rights, whether or not these relate to compensation.
9. Prices
9.1 Prices quoted by UNITO or agreed with UNITO include packaging costs, but exclude VAT, import and export duties, excise duties and other taxes or levies imposed or charged in relation to the products and their transport, unless explicitly stated otherwise.
9.2 Unless otherwise agreed in writing prices quoted by UNITO are in euros and calculated for delivery EXW (Incoterms 2010).
9.3 UNITO is entitled to charge a supplement to cover order and administration costs for orders below a size fixed by UNITO, in accordance with the rules applicable at UNITO at the time the contract is concluded.
9.4 With regard to products which have not yet been delivered, UNITO reserves the right to alter selling prices, discounts and/or terms of sale in respect of the prices, discounts and/or terms of sale applicable on the day of the delivery. In that case, the Customer has the right to cancel the contract, in so far as it has not already been executed, by means of a registered letter sent to UNITO within 8 days of notification of the change, unless the change is to his advantage.
9.5 If cost-determining factors, including taxes, excise duties, import duties, exchange rates, wages, the prices of goods and/or services (whether or not obtained from third parties by UNITO), change after the offer and/or the conclusion of a contract, UNITO is entitled to adjust the prices accordingly.
9.6 If UNITO undertakes to perform additional services without a price expressly being laid down in the agreement for that purpose, it will be entitled to charge a reasonable fee for those additional services.
10. Payment
10.1 Unless otherwise agreed in writing, payment of UNITO invoices must be made in advanced, prior to delivery, in the currency stated on the invoice and solely in the way indicated on the invoice.
10.2 At all times UNITO has the right to request full or partial payment in advance and/or otherwise to obtain security for payment.
10.3 UNITO is entitled to invoice separately for partial deliveries.
10.4 If a payment is not received on time, an interest payment of 1% per week on the outstanding amount, calculated from the due date up to and including the day of payment, where part of a month is regarded as a full month, is payable on the invoice amount by the Customer without further notice of default.
10.5 All costs related to collection will be charged to the Customer. The extrajudicial collection costs will amount to at least 15% of the amount to be collected, with a minimum of EUR 200.
10.6 The Customer renounces any right to offset amounts owed by both sides. UNITO is always entitled to deduct what it owes the Customer from what the Customer and/or companies affiliated to the Customer owes/owe UNITO, whether or not payable.
10.7 The entire invoice amount is payable immediately and in full if an agreed instalment is not paid promptly on the due date, and also if the Customer is declared bankrupt, requests (temporary) suspension of payment, the statutory debt-rescheduling rules (WSNP) are declared applicable to him or an application is made for the appointment of a receiver for him, if the items and/or claims of the Customer are attached, if the Customer dies, goes into liquidation or is wound up. If any of the aforementioned situations arises, the Customer is obliged to inform UNITO of this immediately.
10.8 Payments made by the Customer always go first of all to settle the costs owed, and then to pay the interest due and finally to pay the payable invoices which have been outstanding for the longest, even if the Customer states that the payment relates to a later invoice.
11. Delivery time and delivery
11.1 Quoted and agreed delivery times are approximate and should never be regarded as a deadline. Exceeding a delivery time does not oblige UNITO to pay compensation, nor does it give the Customer the right not to comply with or to suspend its obligations arising out of the contract. However, the Customer is entitled to cancel the contract if and in so far as UNITO does not execute the order within a reasonable period set by the Customer, which is at least equal to the delivery time initially quoted or agreed. In that case, UNITO will not owe any compensation.
11.2 The delivery time is based on the work conditions applicable at the time the contract is concluded and on prompt delivery of the items required by UNITO in order to comply with the contract. If a delay occurs as a result of a change in work conditions and/or the late delivery of items required by UNITO, the delivery time will be extended in so far as this is necessary.
11.3 The delivery time will be extended by the length of the delay which occurs on the part of UNITO as a result of non-compliance by the Customer with any obligation arising out of the contract or cooperation requested from him with regard to performance of the contract.
11.4 The products will be at the Customer's risk from the time of delivery. Ownership of the products will pass to the Customer on delivery, subject to clause 15.
11.5 The Customer is obliged to accept the products immediately after arrival at the place of destination. The Customer shall make provision for adequate loading and unloading facilities and for rapid unloading.
11.6 Loading and unloading as well as wrapping up, repacking and packing are for the account of and at the risk of the Customer, even if UNITO provides assistance in this.
11.7 If the Customer does not accept the products or does not come to collect them or have them collected, they will be stored for the account of and at the risk of the Customer for as long as UNITO deems desirable and/or necessary. In this case, and also in the case of any other (attributable) fault on the part of the Customer, UNITO at all times has the authority to require compliance with the contract, or to cancel the contract (extra-judicially), at the option of UNITO and without prejudice to its rights to compensation for the loss suffered and the profit lost, including the costs of the storage.
11.8 UNITO is not obliged to meet a request by the Customer to delivery again or later. If, however, UNITO proceeds to do so, the costs involved with this shall be paid by the Customer.
11.9 UNITO is entitled to execute a contract in sections and to require payment of the portion of the contract that is executed.
11.10 Without prejudice to the provisions of clause 4.3, UNITO determines the way in which the products are packed.
12. Cancellation and compensation
12.1 The Customer may not cancel a given order. If the Customer nevertheless cancels all or part of an order, he is obliged to compensate UNITO for all reasonable costs incurred for the purpose of executing that order, the work by UNITO and the loss of profit by UNITO, plus VAT.
13. Force majeure
13.1 If UNITO is prevented from complying with the contract by reason of force majeure, UNITO is entitled to suspend execution of the contract, and accordingly it may no longer be bound to any delivery time. In that case, the Customer does not have a right to compensation for loss, costs or interest.
13.2 A force majeure event includes any act, event, non-happening, omission or accident beyond UNITO's reasonable control and includes in particular (without limitation): (i) strikes, lock-outs or other industrial action; (ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; (iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; (v) impossibility of the use of public or private telecommunications networks; (vi) the acts, decrees, legislation, regulations or restrictions of any government; (vii) defects in machinery; and (viii) the non-delivery or late delivery of products or services to UNITO by third parties engaged by UNITO.
13.3 If there is a situation of force majeure, UNITO is entitled to cancel the contract in respect of the part which is not feasible, by means of a written declaration. If the situation of force majeure lasts longer than 90 days, the Customer is entitled to cancel the contract in respect of the part which is not feasible by means of a written declaration.
13.4 If UNITO has already partially fulfilled its obligations when the force majeure situation occurs or if it can fulfil its obligations only in part, it is entitled to invoice separately for the part which has already been delivered or, as the case may be, is available for delivery, and the Customer is obliged to pay this invoice as if it is related to a separate contract.
14. Guarantee and complaints
14.1 UNITO guarantees the soundness of the products and services supplied by it in accordance with what the Customer may reasonably expect under the contract. Should defects nevertheless occur in the products supplied by UNITO as a result of manufacturing and/or material faults, then UNITO will repair these defects (or have them repaired) or will supply the components necessary for repair (or have them supplied), replace all or some of the products in question or make a reasonable price reduction, at the option and solely at the discretion of UNITO. This guarantee applies for a period of twenty four (24) months after delivery, unless otherwise expressly agreed in writing.
14.2 In any case, the guarantee does not cover defects which occur in or (partly) as a result of:
a. normal wear and tear;
b. the failure of (the staff of) the Customer to comply with instructions or regulations, or as a result of other than the normal use provided for;
c. improper storage, maintenance or use by the Customer or end user;
d. work by third parties, erection/installation or repair by third parties or by the Customer, without prior written approval from UNITO;
e. the application of any government regulation concerning the nature or quality of materials used;
f. products produced and supplied according to designs, drawings or other instructions from the Customer;
g. items which have been supplied to UNITO by the Customer for processing or execution of an order or which have been employed in consultation with the Customer;
h. components obtained by UNITO from third parties, in so far as these third parties have not provided UNITO with a guarantee;
i. the processing of the products by the Customer, unless UNITO has expressly indicated a particular method of processing in its documentation, brochures etc. or has given written permission for this without any reservation;
j. vandalism, weather conditions or other external causes.
14.3 The Customer should examine or have others examine the products supplied immediately upon delivery, failing which every right to complain and/or a guarantee will lapse. Any complaints relating to the quantity of the products supplied and transport damage should be noted immediately on the consignment or delivery note, failing which the quantities stated on the consignment or delivery note will constitute conclusive proof with respect to the Customer of the fact that the correct quantities of products have been received and that these products have been received without any transport damage.
14.4 The Customer must notify UNITO by registered letter of any complaints relating to the products, services and/or the performance of the agreement within 8 days of the Customer having discovered the defect or 8 days after the Customer could have reasonably discovered the defect. If complaints are not submitted on time, every claim with respect to UNITO will lapse.
14.5 If the Customer complains, the Customer will be obliged to offer UNITO the opportunity to examine the products in order to determine the failure. The Customer will be obliged to keep the products about which a complaint has been made available to UNITO, failing which every right to specific performance, repair, dissolution and/or compensation will lapse.
14.6 Sold products may only be returned to UNITO, for any reason whatsoever, following prior written authorisation and dispatch and/or other instructions from UNITO. The transport and all associated costs are for the account of the Customer. The products remain for the account of and at the risk of the Customer at all times. UNITO will reimburse the transport costs if it is established that there is an attributable fault on the part of UNITO.
14.7 Any defects relating to a part of the products delivered do not give the Customer the right to reject or refuse the entire consignment of delivered products.
14.8 Any right to guarantee or complaint is extinguished if the products have been transported, handled, used, treated or stored wrongly or contrary to instructions given by or on behalf of UNITO, or if the usual measures/regulations have not been observed, and also if the Customer has not complied with any obligation to UNITO arising for him out of the underlying contract, or has not complied appropriately or on time.
14.9 Complaints do not suspend the Customer's payment obligations.
14.10 After a fault has been detected in a product or service, the Customer is obliged to do everything to prevent or restrict damage, and this expressly includes possible immediate suspension of use, treatment, processing and/or sale.
14.11 The Customer should inform UNITO in writing of any inaccuracies in invoices within 5 working days of the invoice date, failing which the Customer will be considered to have approved the invoice.
15. Reservation of ownership
15.1 UNITO retains ownership of the products delivered or to be delivered, until its claims relating to the products delivered or to be delivered have been met in full by the Customer, including the claims resulting from failure to comply with one or more contracts.
15.2 If the Customer fails to comply with his obligations, UNITO has the right to recover the products belonging to it (or have them recovered) from the place where they are located, at the expense of the Customer.
15.3 The Customer does not have the right to pledge products which have not yet been paid for or to transfer ownership of them, other than in the context of normal business practice.
15.4 The Customer is obliged to exercise due care when keeping the products supplied under reservation of ownership and to keep them as identifiable property of UNITO.
15.5 The Customer is not entitled to any right of retention vis-à-vis UNITO in respect of the products supplied by UNITO.
16. Liability
16.1 Except for the provisions of clause 14, the Customer does not have any claim against UNITO on grounds of faults in or relating to the products and/or services delivered by UNITO. Therefore, UNITO is not liable for direct and/or indirect damage or loss, including personal injury and property damage, emotional damage, consequential damage (trading loss and/or loss resulting from standstill) and any other loss or damage, resulting from any cause, except in the case of gross fault or intent on its part.
16.2 Likewise, UNITO is not liable in the aforementioned sense for the actions of its employees or other people who come within its sphere of risk, including (gross) fault or intent on the part of these people.
16.3 UNITO is not liable for infringements of patents, licences and/or other third-party rights resulting from the use of data supplied by or on behalf of the Customer. Nor is UNITO liable for damage to or loss of raw materials, semi-manufactures, models and/or other items made available by the Customer.
16.4 Damage to products caused by damage to or destruction of packaging is for the account and at the risk of the Customer.
16.5 If UNITO proceeds to exercise a right of suspension or cancellation on the basis of facts and/or circumstances known to it at that time, whereas it is irrevocably established later that such a right has been exercised incorrectly, UNITO is not liable and not obliged to pay any compensation for loss, except in the case of intent or gross fault on its part.
16.6 In all cases in which UNITO, without prejudice to the provisions of clause 16, is obliged to pay compensation, this compensation will never be higher than the invoice value of the products and/or services supplied that have resulted in the damage or in connection with which the damage has been caused. If the damage is covered by UNITO's business liability insurance, the compensation will never be higher than the amount actually paid out by the insurer in the case in question.
16.7 Any claim against UNITO, apart from those which are acknowledged by UNITO, lapses following the simple expiry of a period of 12 months from when the claim arose.
16.8 The Customer indemnifies UNITO, its employees and helpers brought in by it to execute the contract against any claim by third parties, including claims based on product liability, in connection with execution of the contract by UNITO, regardless of the cause, and also against the costs incurred by UNITO as a result.
17. Confidentiality
17.1 The Customer undertakes to observe strict confidentiality about the know-how, designs, drawings, prototypes, marketing plans, prices, information and other confidential business information of UNITO of which it takes cognizance ("Confidential Information"). The Customer shall undertake all necessary precautions in order to observe the confidentiality of the Confidential Information. The Customer shall not in any way bring Confidential Information to the knowledge of third parties.
17.2 Confidential Information does not include information of which the Customer can show that (a) it was in its possession before it was disclosed by UNITO (b) it is public knowledge (c) it has been obtained lawfully from a third party, without infringing any confidentiality obligation towards UNITO (d) it has been developed independently by it without direct or indirect use of Confidential Information.
18. Representation
18.1 If the Customer is acting on behalf of one or more other parties, he is liable vis-à-vis UNITO as if he himself were the Customer, without prejudice to the liability of the other parties.
19. Transfer of rights and obligations
19.1 All agreements between UNITO and the Customer are binding on their respective successors and assigns.
19.2 The Customer may not transfer, assign, charge, sub-contract or otherwise dispose of an agreement, or any of its rights or obligations arising under it, without UNITO's prior written consent.
19.3 UNITO may transfer, assign, charge, sub-contract or otherwise dispose of an agreement, or any of its rights or obligations arising under it, at any time during the term of the agreement.
20. Final provisions
20.1 The invalidity or void ability of any provision of these regulations or of contracts to which these terms apply does not affect the validity of the other provisions. UNITO and the Customer are obliged to replace provisions which are null and void or are annulled with valid provisions which, as far as possible, have the same meaning as the invalid or annulled provision.
20.2 The agreement(s) between UNITO and the Customer shall be governed by and construed in accordance with the laws of the Netherlands.
20.3 Any applicability of international conventions on the sale of movable goods which the parties can declare inapplicable is hereby expressly excluded. More particularly, the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG 1980) is excluded.
20.4 The courts in the district of Limburg, the Netherlands, shall have exclusive jurisdiction for all matters regarding the agreement(s) between UNITO and the Customer, unless another court is competent on the basis of mandatory law. Either party shall use its best efforts to settle a dispute in an amicable manner. In deviation from this provision, UNITO will also and at all times be entitled to submit a dispute or claim to the competent court for the place where the Customer has his registered or actual place of business.
