ARTICLE 4 : INSPECTION AND COMPLAINTS

4.1 The Buyer is obliged to check the products supplied by MOTOPORT EUROPE on delivery. Complaints pertaining to faults related to the supplied products should be reported in writing to MOTOPORT EUROPE within 24 (in words: twenty-four) hours at the latest of the receipt of the products; if the Buyer fails to do so, the Buyer is assumed to have accepted the products.

4.2 If MOTOPORT EUROPE deems a complaint to be well-founded and MOTOPORT EUROPE is responsible for the non-conformance of, or damage to, the products, MOTOPORT EUROPE will either replace the supplied products or credit (part of) the sale price paid by the Buyer to the Buyer and recall the delivered products, which ever MOTOPORT EUROPE decides. MOTOPORT EUROPE does not have any other obligation or liability to the Buyer with respect to non-conformance of products other than specified in the previous sentence.

4.3 MOTOPORT EUROPE is entitled to conduct its own examination of the nature, scope and cause of any reported fault, during which the Buyer is obliged to give its full cooperation; if the Buyer fails to do, the Buyer shall not be able to enforce any claims on MOTOPORT EUROPE in the matter of the reported faults.

4.4 Lodging a complaint does not release the Buyer from its payment obligation as referred to in Article 5.

4.5 Slight variations in quality, quantity, dimensions, colour, size, etc. are not grounds for complaint.

ARTICLE 5 : PAYMENTS

5.1 MOTOPORT EUROPE shall send the Buyer an itemised invoice in writing, by email or by letter, on the date of the delivery or afterwards. The Buyer shall pay the invoice within 10 (in words: ten) days of the date on the invoice, unless it has been explicitly agreed otherwise. Payments shall always be made without any discount, settlement or suspension by the Buyer on any grounds.

5.2 The currency of the payment is Euros, unless it has been explicitly agreed otherwise.

5.3 MOTOPORT EUROPE is always entitled to request full or partial payment in advance for each (partial) delivery or to request that the Buyer provides security to the amount of the price due to MOTOPORT EUROPE to MOTOPORT EUROPE’s satisfaction, e.g. by means of a bank guarantee. If MOTOPORT EUROPE has well-founded fears that the Buyer will not meet the Buyer’s financial obligations and the Buyer refuses to provide (additional) security, MOTOPORT EUROPE is entitled to suspend the execution of the order, without prejudice to MOTOPORT EUROPE’s statutory right to suspend performance. MOTOPORT EUROPE is also entitled to apply an order limit.

5.4 If the Buyer fails to pay any amount due to MOTOPORT EUROPE, or if the payment is overdue, the Buyer shall be in default by operation of law merely because the applicable payment period has expired, without any warning or default notice being required, and MOTOPORT EUROPE is entitled to increase the overdue amount with default interest of 2 % per month and the statutory commercial interest pursuant to Section 6:119a of the Dutch Civil Code, to be calculated as from the date of the invoice to the time of full settlement. The interest is calculated by increasing the overdue amount after each month with the interest owed for that period.

5.5 If the Buyer has not paid an invoice by the due date, MOTOPORT EUROPE is entitled to refuse any further delivery of products until the payment has been made in full.

5.6 All payments received are first reconciled with the interest and (extrajudicial) costs on any outstanding invoices, after which the remainder is deducted from the oldest outstanding invoice for products supplied.

5.7 MOTOPORT EUROPE is always entitled to settle MOTOPORT EUROPE’s obligations to the Buyer, partially or in full, with any current or future receivables MOTOPORT EUROPE has, or shall have, against the Buyer at any time, whether these are due and payable, conditional or time-bound or otherwise.

5.8 If the Buyer is in default, MOTOPORT EUROPE may claim compensation for the extrajudicial (collection) costs; those costs, in that case, as a departure from Section 6:96, paragraph 4, of the Dutch Civil Code, and as a departure from the Extrajudicial Collection Costs (Fees) Decree, are already fixed at an amount equalling 15 % of the total outstanding principal sum with a lower limit of € 75.00 (in words: seventy-five Euros) for each invoice that remains partially or fully unpaid.

ARTICLE 6 : GUARANTEES & LIABILITY

6.1 MOTOPORT EUROPE guarantees that the supplied products do not contain any serious faults at the time of their delivery. MOTOPORT EUROPE shall not provide any other, implicit or explicit, guarantee for the products.

6.2 If the supplied products do not comply with the guarantee specified in Article 6.1, the Buyer shall return the products within a reasonable period of their receipt, or, if returning them is not reasonably possible, after the Buyer’s written notice of the fault, MOTOPORT EUROPE shall replace them or arrange their repair, which ever MOTOPORT EUROPE decides. Products that have been wrongly ordered or delivered can only be returned if the Buyer notifies MOTOPORT EUROPE by email within a reasonable period after the receipt of the wrong order or delivery and MOTOPORT EUROPE has given its written permission for the return. Returns, both in relation to the guarantee specified in Article 6.1 and wrong orders or deliveries, may only be made if (i) they are submitted via web/RMA and (ii) if they are sent carriage paid. The Buyer bears the costs and risks of return shipments.

6.3 The guarantee described in this matter does not apply if the fault arose as a consequence of improper or spurious use or if, without MOTOPORT EUROPE’s written consent, the Buyer, or third parties, have made changes, or attempted to make changes, to the item or have used it for purposes for which the item is not intended.

6.4 If the guarantee given by MOTOPORT EUROPE concerns an item that was produced by a third party, the guarantee is limited to the guarantee issued by the manufacturer of the item.

6.5 The right of claim by reason of a fault lapses after a month after the written notice of default, containing the reasons, has expired. The legal action by reason of a fault for which MOTOPORT EUROPE may be held liable under the terms of this Article is not allowable if it is initiated, insofar nothing else has been agreed, later than 6 (in words: six) months as from the day on which the agreement ended by delivery, termination or cancellation.

6.6 MOTOPORT EUROPE is not liable for any direct or indirect damage or loss incurred by the Buyer, explicitly including but not limited to, direct trading loss, loss of profit, consequential loss, personal injury, all other forms of financial loss and all possible claims of third parties, except in the event of intent or wilful recklessness on the part of MOTOPORT EUROPE.

6.7 MOTOPORT EUROPE can only be held liable for losses that are not covered by the Buyer’s insurance. If, and insofar, the Buyer has insured any risk connected to the agreement, the Buyer is obliged to claim any damage covered by that insurance and to indemnify MOTOPORT EUROPE from recovery claims from the insurance company.

6.8 In all cases, MOTOPORT EUROPE’s liability is limited to the net invoice value of the supplied products through which, or in connection with which, damage was caused or, if the damage is covered by any insurance policy of MOTOPORT EUROPE, to a maximum of the amount that is actually paid out to MOTOPORT EUROPE by the relevant insurance company in the case concerned.

6.9 The Buyer must notify MOTOPORT EUROPE in writing of damage that the Buyer incurred at the earliest opportunity and in any event within 2 (in words: two) weeks of the occurrence or detection of the damage. Damage that is not reported within this term does not qualify for compensation. In any event, any claim of the Buyer against MOTOPORT EUROPE, except claims explicitly accepted by MOTOPORT EUROPE, shall lapse on the expiration of a 12 (in words: twelve) month period after it arises.

6.10 The Buyer indemnifies MOTOPORT EUROPE against claims from third parties related to intellectual property rights to the information or materials provided by the Buyer that are used for the execution of the Agreement. If the Buyer provides MOTOPORT EUROPE with electronic files or software, etc., the Buyer guarantees MOTOPORT EUROPE that the information carriers, electronic files or software are free of viruses and other defects.

ARTICLE 7 : CANCELLATION, SUSPENSION & TERMINATION

7.1 Without prejudice to its statutory powers, MOTOPORT EUROPE has the right to suspend execution of the agreement or to cancel the agreement, partially or in full, without notice of default or the intervention of a court and without any obligation to pay compensation for damage or guarantee commitments, if the Buyer fails to comply with any obligation pursuant to the agreement concluded with MOTOPORT EUROPE or these General Terms and Conditions, or fails to do so properly or in a timely manner, if there are serious doubts concerning whether the Buyer is able to meet its contractual obligations towards MOTOPORT EUROPE or if the Buyer is declared bankrupt or a petition for liquidation of the Buyer’s business has been filed, the Buyer is granted a moratorium on payments or is dissolved or wound up.

7.2 The Buyer is not permitted to exchange products of which the Buyer has taken delivery unless it has been explicitly otherwise agreed in writing.

7.3 The provisions of these General Terms and Conditions remain fully in effect in the event of termination of the agreement.

7.4 Back-order deliveries shall be delivered carriage paid if the joint delivery value is at least € 180.00, not including VAT. If the amount is lower, delivery will not automatically take place. In such cases, the Buyer must wait until the next order.

7.5 MOTOPORT EUROPE is always permitted to cancel deliveries, both from stock and as back orders.

ARTICLE 8 : RETENTION OF TITLE

8.1 All items delivered by MOTOPORT EUROPE , including any designs, sketches, drawings, films, software, (electronic) files, etc. remain the property of MOTOPORT EUROPE until the Buyer has fulfilled all following obligations arising from the agreements concluded with MOTOPORT EUROPE.

8.2 The Buyer is not authorised to pledge the items subject to retention of title nor to encumber them in any other way.

8.3 If third parties seize the items subject to retention of title or wish to attach or exercise rights to them, the Buyer is obliged to notify MOTOPORT EUROPE as soon as may reasonably be expected of the Buyer.

8.4 The Buyer undertakes to adequately insure the items delivered subject to retention of title, and to keep them insured against fire, damage by explosion, water damage and against theft and to allow inspection of the policy papers for the insurance at the first request.

8.5 Items delivered by MOTOPORT EUROPE that are subject to retention of title under the terms of Article 8.1 may only be resold within the context of normal business operations and may never be used as a means of payment.

8.6 The Buyer hereby gives its unconditional consent in advance to MOTOPORT EUROPE, or to third parties appointed by MOTOPORT EUROPE, to enter all those places where MOTOPORT EUROPE’s property is located and to return with those items in the event that MOTOPORT EUROPE wishes to exercise MOTOPORT EUROPE’s property rights specified in this Article.

ARTICLE 9 : INTELLECTUAL PROPERTY RIGHTS

9.1 MOTOPORT EUROPE is the party entitled to copyrights and other intellectual property rights with respect to all materials made, and to be made, by MOTOPORT EUROPE, including, but not limited to, all products offered by MOTOPORT EUROPE, with the exception of products that MOTOPORT EUROPE distributes (hereinafter called: “the Materials”). MOTOPORT EUROPE grants the Buyer the non-exclusive, non-transferable right to use the Materials only for the purpose of promoting the sale of the products acquired from, and to be acquired from, MOTOPORT EUROPE. The Buyer is not permitted to makes changes to the Materials, including translations of the Materials.

9.2 The Buyer is always obliged to return the Materials made available by MOTOPORT EUROPE to MOTOPORT EUROPE at the first request. The right referred to in Article 9.1 to the use of the Materials shall, in any case, end by operation of law on the first day after six months have expired after the last order of products from MOTOPORT EUROPE placed by the Buyer without any new order for those products having been placed.

ARTICLE 10 : CONFIDENTIALITY

10.1 The Buyer is obliged to maintain confidentiality with respect to all confidential information the Buyer acquires within the context of the agreement from MOTOPORT EUROPE or from another source. Information is regarded as confidential if MOTOPORT EUROPE informs the Buyer that it is confidential or if it follows from the nature of the information. The following information is always deemed confidential: recommended retail prices, the extent of a discount negotiated with a Buyer and the volume of MOTOPORT EUROPE’s stock.

10.2 If the Buyer does not meet, or fails to meet adequately, the obligations arising from Article 10.1 and still fails to comply with aforesaid obligations 14 (in words: fourteen) days of being given notice of default by MOTOPORT EUROPE, the Buyer shall forfeit a penalty, immediately due and payable, to MOTOPORT EUROPE of € 4,000.00 for each breach and of € 1,500.00 for every day that the breach continued and still continues, all of which is without prejudice to MOTOPORT EUROPE’s right to recover the actual damage suffered which arose from the failure to comply, from the Buyer, in addition to the penalty, and/or to demand fulfilment of the agreement.

10.3 If, on the grounds of a statutory provision or a court ruling, MOTOPORT EUROPE is obliged to disclose confidential information belonging to the Buyer to third parties appointed by law or by the competent court, and MOTOPORT EUROPE cannot rely on a right to refuse to give evidence, either acknowledged or permitted by law or the competent court, MOTOPORT EUROPE is not obliged to pay compensation or damages and the Buyer is not entitled to terminate the agreement on the grounds of any damage that might have consequently arisen.

ARTICLE 11 : PROHIBITION OF THE ACQUISITION OF STAFF AND PERSONS ON SECONDMENT

11.1 The Buyer is not permitted to employ MOTOPORT EUROPE’s employees who were involved in the execution of the agreement, or arrange for them to work otherwise for the Buyer, for the term of the agreement and twelve months after its termination.

11.2 In the event of secondment, the Buyer is not permitted to employ the seconded persons, or arrange for them to work otherwise for the Buyer, for the term of the secondment and twelve months immediately after its termination.

11.3 The Buyer shall forfeit a penalty that is immediately due and payable to the sum of 3 (in words: three) annual salaries, gross, of the relevant employee or seconded person if the obligation specified in paragraphs 1 and 2 is violated, without prejudice to MOTOPORT EUROPE’s right to claim compensation for damages pursuant to the law.

ARTICLE 12 : CHOICE OF LAW AND DISPUTES

12.1 All agreements, legal relationships and work executed by MOTOPORT EUROPE for the Buyer is governed solely by Dutch law, unless explicitly agreed otherwise. The application of the United Nations Convention on Contracts for the International Sale of Goods is explicitly ruled out.

12.2 Any disputes that may arise in relation to, or as a result of, the agreement and/or the General Terms and Conditions applicable to it shall be submitted to the competent Court in the Netherlands in the court district in which MOTOPORT EUROPE has its registered office.