0. APPLICABILITY OF TERMS AND CONDITIONS FOR SALES WITH SHIPMENT TO OR INTERNALLY IN THE UNITED STATES OF AMERICA AND CANADA
0.1. For All Sales With Shipment to the United States. These terms and conditions shall apply to all quotations and agreements entered into between Miqraid BV, Koopman International BV, Koopman International Hong Kong Ltd., Koopman International Asia Ltd., PT Asia Ltd., PT World Wide Ltd., or Koopman International Atlanta LLC, (hereinafter referred to as: ‘Koopman’) and a purchaser (hereinafter referred to as ‘purchaser’), where shipment is to the United States of America.
0.2. Applicable in Their Entirety. These conditions shall apply in their entirety unless differences are expressly stated in writing.
0.3. Exclusion of Other Terms and Conditions. These terms and conditions shall apply to the exclusion of any other terms and conditions, however referenced by purchaser, and the acceptance of any order by Koopman shall be deemed to be acceptance by purchaser of these terms and conditions. The purchaser’s terms and conditions shall not constitute part of the legal relationship between the parties.
0.4 No Oral Agreements. No variation, alteration, modification, or waiver to these terms and conditions shall be binding upon the parties unless agreed to by the parties in writing.
0.5 No Representations. Purchaser acknowledges that the sale of goods pursuant to these terms and conditions was not entered into in reliance upon any representations of Koopman, its employees, agents and contractors, except as otherwise provided by Koopman in writing.
0.6 No Third Party Beneficiaries. No third party shall be a beneficiary of or have any rights arising out of any agreement between Koopman and purchaser and these terms and conditions, unless otherwise provided by Koopman in writing.
0.7 Opt Out From CISG. The parties hereby opt out of the application of the Convention on Contracts for the International Sale of Goods (CISG) with respect to quotations, agreements and sales to which these terms and conditions are applicable.
1. QUOTATION /AGREEMENT
1.1. Quotations Not Binding. All quotations, whatever they shall be called, shall not create any obligation of Koopman.
1.2. When An Agreement Becomes Effective. An agreement shall only come into effect:
A. by written confirmation by Koopman of the quotations accepted by purchaser, of the orders given to it, or of the agreements made with Koopman’s representatives; or
B. by Koopman’s actual performance of orders received.
1.3. Contents of Agreement Based Upon Actual Goods Supplied. Should an agreement take effect as a result of the stipulations under 1.2, the actual goods supplied shall determine the contents of the agreement. The risk of misunderstandings about the contents of telephoned orders or unclear written instructions shall be borne by purchaser.
1.4 Place of Contract. Any agreement between Koopman and purchaser to which these terms and conditions apply shall be considered made at the principal place of business of the Koopman entity that is the seller.
1.5 Identity of the Goods. The quality, quantity, scope, description of and any specification for the goods shall be solely as set out in Koopman’s quotation, or purchaser’s order if and when it has been accepted by Koopman.
1.6 No Order Cancellation. No order, which has been accepted by Koopman, may be cancelled in whole or in part by purchaser except with the prior written agreement of Koopman.
1.7 No Transfer of Intellectual Property Rights. The sale of the goods by Koopman does not confer any right or license upon or to purchaser to use or exploit in any way intellectual property rights subsisting in or relating to the goods or which Koopman is the proprietor or to which Koopman is otherwise entitled.
2.1. Exclusion of Taxes. All prices referred to exclude taxes, other government levies and costs.
2.2. Sales are FOB Shipping Point. All deliveries to destinations within the United States shall be FOB Shipping Point unless otherwise agreed by Koopman in writing.
2.3. Payment. Purchaser shall pay Koopman for the goods on or before loading of the goods onto the ship or other means of transportation unless otherwise agreed by Koopman in writing. Payment shall be in full without discount, deduction, or offset and without purchaser recourse to compensation.
2.4. Default Upon Non-payment. Should purchaser fail to timely make payment to Koopman, purchaser shall be in default without any notice of default being required. Upon such default, Koopman shall be entitled to all rights provided by the agreement, these terms and conditions and applicable law. Koopman shall be entitled to charge interest on arrearages at a rate of 1.5% per month. Should Koopman thereafter collect amounts owed by purchaser through an attorney at law or other collection process, then purchaser shall be required to pay the reasonable attorney’s fee of Koopman, all other legal assistance costs, including the associated extrajudicial, judicial and execution costs.
2.5. Right to Demand Immediate Payment. Koopman shall be entitled at all times to demand immediate payment for delivery of goods or, in lieu thereof, to demand security, in an amount and form determined by Koopman in its sole discretion.
3. PACKAGING AND ADVERTISING MATERIALS
3.1. Deposits. Koopman may charge a deposit for packaging, including pallets etc. owned by Koopman. In respect of all other packaging, payment shall be made directly to the carrier of the goods.
3.2. Return of Packaging Materials. Purchaser shall be credited by Koopman for 75% of the invoiced deposit value of packaging materials returned in good condition. The costs of return shall be borne by the purchaser unless otherwise agreed in writing.
3.3. Limit on Use of Advertising Materials. Advertising material supplied shall not be used for any purpose other than the intended purpose.
4. DELIVERY TERMS/PRICE CHANGES
4.1. Variations in Delivery Dates. Stated delivery dates are only indicative even where a ‘fixed delivery date’ is stipulated when the order is issued. Koopman shall be entitled to exceed the stated date by a reasonable period, depending on the circumstances, without purchaser being entitled to demand earlier delivery, to cancel the order or demand termination of the agreement. In all events, a period of fourteen days shall be deemed reasonable. The above shall not apply if the delivery date is expressly stated in the agreement to be the last possible deadline acceptable. Should Koopman foresee that it will miss such a deadline, the parties shall confer in order to reach a solution, which agreement shall not be unreasonably withheld by purchaser.
4.2. Early Delivery. Koopman shall be entitled to deliver and invoice all or part of the ordered goods earlier unless the opposite is expressly stipulated.
4.3. Price Adjustment. Koopman shall be entitled to adjust the stated prices in line with price changes occurring afterwards that result from:
a. price increases implemented by its suppliers;
b. the imposition of new ‑ or increases in existing ‑ government‑imposed import or export levies and other taxes;
c. exchange‑rate changes;
d. additional transport costs and surcharges, including sea and air freight levies imposed by governments or carriers.
4.4 Deliveries In Installments. Where the goods are to be delivered in installments, each delivery shall constitute a separate contract. Any failure of Koopman to deliver any one or more of the installments in accordance with these terms and conditions or any other claim by purchaser with respect to any installment shall not entitle purchaser to repudiate or cancel the agreement.
5. DISCREPANCIES/CLAIMS/OWN RISK/GOODS RETURNED
5.1. Permitted Discrepancies. Small discrepancies in quantities ordered or in pattern, color or design shall be permitted without this being a reason for the purchaser to terminate the agreement entirely or partly.
5.2. Notification of Discrepancies. The purchaser shall check the goods for quantity and any defects immediately upon receipt. Discrepancies in the number of packages shall be reported to the carrier immediately and clearly stated on the delivery note.
The purchaser shall report any other discrepancies to Koopman. Koopman shall not be obliged to accept claims which reach it more than eight days after purchaser has received the goods. If purchaser fails to notify Koopman in writing of any such discrepancy, non-conformity, damage or other failure of the goods to comply with the agreement between the parties within such eight-day period, purchaser shall be deemed to have accepted the goods. Any notification by purchaser shall incorporate all relevant details and information. After such notification, purchaser shall provide Koopman or its agents with reasonable opportunity to inspect the goods.
5.3. Sharing of Risk. 5% of the risk of delivery of earthenware, glass, porcelain and inflatable articles shall be borne by the purchaser.
5.4. Replacement of Defective Goods. Koopman shall have the right to repair defective goods or replace them by similar goods within a reasonable period considering the circumstances.
5.5. Where Defects Cannot Be Repaired. If the defects cannot be repaired satisfactorily, and no similar replacement goods can be supplied at the same costs or that cannot take place within a reasonable period, either party shall be entitled to terminate the remainder of the agreement by notifying the other party. In this case, neither of the parties shall be liable to pay compensation to the other party.
5.6. Return of Goods. Purchaser shall not return any goods to Koopman until after Koopman and purchaser have consulted regarding the matter.
5.7 No Destruction of Goods. None of the goods delivered by Koopman shall be destroyed without Koopman’s previous written permission. Goods shall not be destroyed before such written permission has been obtained from Koopman.
6. RETENTION OF TITLE
6.1 Full Payment Before Transfer of Title. The goods sold and delivered shall remain Koopman’s sole property until Koopman receives full payment of all invoices (including for goods previously supplied), due costs and damages.
7. FORCE MAJEURE
7.1 No Liability. In the case of force majeure, Koopman shall not be liable for damage sustained by the other party or third parties. Force majeure shall include: war, riot, weather, delay in the performance of the agreement as a result of strikes and actions by third parties or Koopman’s personnel; force majeure situations at Koopman’s suppliers; non‑performance or incomplete performance of contractual obligations by suppliers; import and export prohibitions, quota and trade restrictions by national or international bodies; delays in sea and air transport, or any other cause beyond Koopman’s reasonable control.
7.2 Suspension of Obligations. The obligations of both parties shall be suspended for the duration of the force majeure situation.
7.3. Right to Terminate Agreement. If the force majeure situation shall extend beyond Koopman’s delivery deadline, either of the parties shall be entitled to terminate the agreement in whole or part after consultations between the parties.
7.4. Promotion Goods. The above clause shall not apply to promotion goods or goods produced with a view to a particular event. In that case, the parties shall confer to achieve a solution to the problem, primarily in order to limit the damage to both parties as far as possible.
8.1 Koopman Is Not the Manufacturer. Purchaser acknowledges and agrees that Koopman is not the manufacturer of the goods sold and the only warranties offered are those of the manufacturer, if any.
8.2 WAIVER. KOOPMAN AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO THE GOODS, INCLUIDNG, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTY OF NON INFRINGEMENT. The disclaimer contained in this paragraph does not affect any manufacturer’s warranty.
8.3 Additional waivers. Purchaser expressly waives any claim that it may have against Koopman, or its affiliates, based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret, or other intellectual property rights with respect to any of the goods and also waives the right to indemnification from Koopman or its affiliates against any such claim made against purchaser by a third party.
8.4 No Warranties by Employees etc. Purchaser acknowledges that no employee, agent, or contractor of Koopman or its affiliates is authorized to make any representation or warranty on behalf of Koopman that is not contained in the agreement or these terms and conditions.
8.5 High Risk Use. Purchaser acknowledges and agrees that Koopman makes no representations, warranties, or assurances that the goods are designed for or suitable for use in any high risk environment, including, but not limited to, aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapons systems. Purchaser agrees to indemnify Koopman in connection with any such use of the goods.
9. LIMITATION OF LIABILITY
9.1. KOOPMAN AND ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS AND CONTRACTORS WILL NOT, UNDER ANY CIRCUMSTANCE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, BE LIABLE FOR; (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS REVENUES OR SAVINGS, EVEN IF KOOPMAN HAS BEEN ADVISED OF THE POSSIBILTIES OF SUCH DAMAGES OR IF SUCH DMAMAGS ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM F0R ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILTY; (B) ANY CLAIMS, DEMANDS OR ACTION AGAINST PURCHASER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH PURCHASER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY KOOPMAN OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE GOODS; OR (D) ANY UNAVAILABILITY OF THE GOODS FOR USE. IN THE EVENT OF ANY LIABILITY INCURRED BY KOOPMAN OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF KOOPMAN AND ITS AFFILLIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY PURCHASER FOR THE GOODS GIVING RISE TO THE CLAIM; OR (B) $30,000.
9.2. No Indemnities. Koopman shall in no way indemnify the purchaser or any third party.
10. OTHER STIPULATIONS
10.1. Suspension by Koopman. In the event of non‑performance by purchaser, including late payment of invoices, Koopman shall be entitled to suspend further deliveries or demand termination of the agreement by notifying purchaser in writing, without prejudice to its entitlement to performance and/or compensation for the damage it has sustained.
10.2. Insolvency. Should purchaser be insolvent or declare bankrupt or institute any other type of insolvency proceeding, or should any such bankruptcy or insolvency procedure be instituted against purchaser, and is not dismissed within thirty (30) days, Koopman shall be entitled to suspend immediately further implementation of the agreement without prejudice to its entitlement to performance and/or full compensation. In such a case, all invoice amounts not yet due shall be collectable and payable immediately, and it shall also have the right to demand all or part of the goods supplied by it without notice of default and to take actual possession of them.
10.3. Governing Law. These terms and conditions, any agreement between purchaser and Koopman as to which the terms and conditions are applicable and any sales of good by Koopman to purchaser for shipment into the United States shall be governed by the laws of the State of Georgia, USA, without regard to Georgia’s conflict of laws rules.
10.4. Dispute Resolution. Any claim, dispute, or controversy (whether pre-existing, present or future and including, but not limited to, statutory, common law, and intentional tort) arising from or relating to goods sold, the interpretation or application of these terms and conditions or the breach, termination or validity thereof, the relationship which results from these terms and conditions, and the enforceability of this arbitration provision, shall be resolved upon the election by Koopman or purchaser exclusively and finally by binding arbitration. If arbitration is chosen, it will be conducted pursuing to the commercial arbitration rules of the American Arbitration Association with hearing held in metropolitan Atlanta, Georgia unless otherwise agreed by the parties in writing. If arbitration is chosen by any party with respect to a dispute, neither Koopman nor purchaser will have the right to litigate that dispute in court or have a jury trial on that dispute, or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by any written agreement of the parties. Further purchaser will not have the right to participate as a representative or member of any class of claimants pertaining to any such claim or dispute. Notwithstanding any choice of law provision included in these terms and conditions, the arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own costs of any legal representation, discovery or research required to complete arbitration. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Koopman arising out of the goods sold pursuant to these terms and conditions will be exclusively litigated in courts of DeKalb County, Georgia or Fulton County, Georgia at the option of Koopman rather than arbitration. Purchaser consents to the jurisdiction of such courts, consents to the jurisdiction thereof and waives the right to change venue. Koopman and Purchaser waive the right to trial by jury in any such litigation.
10.5 Contractual Statute of Limitations. Except for claims of non-payment by purchaser, neither party may institute any action or arbitration in any form arising out of the sale of the goods or these terms and conditions more than one (1) year after the cause of action arises.
10.6 Rights are Cumulative. The rights and remedies provided Koopman and purchaser under these terms and conditions are cumulative, and are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
10.7 Injunctive Relief. Nothing in these terms and conditions shall preclude a party from seeking and obtaining injunctive relief in a court having jurisdiction arising out of these terms and conditions or the goods where such party does not have an adequate remedy at law.
10.8. Severability. If any clause, paragraph, section or provision of these terms and conditions shall be held or declared to be void, invalid or illegal for any reason by any court of competent jurisdiction or an arbitration panel, such provision shall be ineffective but shall not in any way invalidate or affect any other clause, paragraph, section or provision of these terms and conditions. The parties intend that all clauses, paragraphs, sections or parts of these terms and conditions shall be enforceable to the fullest extent permitted by law.
10.9 Assignment. Koopman may assign any agreement between Koopman and purchaser for the sale of goods pursuant to these terms and conditions. Purchaser may not assign any such agreement without the advance written consent of Koopman, which consent may be unreasonably withheld.
10.10 No Waiver. No course of dealing or any delay on the part of Koopman or purchaser in exercising any rights under these terms and condition shall operate as a waiver of any such rights. No waiver of any default or breach pursuant to these terms and conditions by either Koopman or purchaser shall be deemed a continuing waiver or waiver of any other breach or default.
10.11 Headings and References. The headings to the paragraphs of these terms and conditions are inserted for convenience of reference and shall not constitute a part hereof. As used herein, all references to the singular shall include the plural, references to the plural shall include the singular, and all references to the masculine or neuter genders shall include the feminine gender and the vice-versa.