GENERAL TERMS AND CONDITIONS OF CALASO USA INC.
ARTICLE 1. DEFINITIONS
| 1.1. | CALASO: The private company with limited liability CALASO USA INC. with its registered offices in Los Angeles, United States, registered with the Trade Register of the Dutch Chamber of Commerce under number 82250316, or any of its group companies. |
| 1.2. | The Other Party: Any party which has or will have a contractual relationship of any nature with CALASO. |
| 1.3. | The Parties: CALASO and the Other Party jointly. |
| 1.4. | The Products: each and any product manufactured, sold, distributed and/or supplied by CALASO, including but not limited to glass packaging and accessories. |
ARTICLE 2. CONCLUSION OF A CONTRACT AND AMENDMENTS
| 2.1. | All quotations issued by CALASO are free of obligation, even if a deadline for acceptance is stipulated. |
| 2.2. | CALASO shall at all times be entitled to revoke the offer or quotation as long as such offer or quotation has not been accepted by the Other Party. |
| 2.3. | CALASO shall not be obliged to execute any accepted quotations if they are based on manifest (writing) errors. |
| 2.4. | Acceptance by the Other Party of an offer of CALASO, stipulating the applicability of the Other Party's general (purchasing) conditions (whether or not to the exclusion of CALASO's general conditions) shall not have any effect insofar as it involves the applicability of the Other Party's conditions and/or the exclusion of CALASO's conditions. Article 19 of the Vienna Sales Convention (CISG) shall not apply. The provisions of the following clause shall remain fully applicable. |
| 2.5. | The general terms and conditions (of purchasing) of the Other Party are expressly rejected by CALASO. |
| 2.6. | These general terms and conditions apply to all current and future legal relationships between CALASO and the Other Party. |
| 2.7. | Insofar as the agreement between CALASO and the Other Party deviates from the provisions of these general terms and conditions, the content of the agreement shall prevail. |
| 2.8. | Any amendments to the agreement (including the general terms and conditions) between Party's can be substantiated only by written documents. Any deviating stipulations shall apply only to the agreement for which stipulations have been formulated. |
| 2.9. | Either party shall pay its own costs incurred during the negotiations and preparations leading to the agreement. |
| 2.10. | Any amendments to the order's composition shall lead to amendments to the delivery term. If the Other Party amends its order, it shall automatically accept the change to the delivery time. |
ARTICLE 3. DELIVERY AND RISK
| 3.1. | The Products shall be delivered Ex-works (EXW) as specified in the applicable lncoterms (as from 1 January 2021 being the Incoterms 2021) from the address 3307 E Carson St, Unit C1 & C2, Carson, CA 90810, United States, unless provided otherwise in CALASO's order or order confirmation or as specifically agreed otherwise between CALASO and the Other Party. |
| 3.2. | Notwithstanding Article 3.1, CALASO and the Other Party can agree in writing that CALASO arranges for the transport. The Other Party shall in each and any case bear the full risks, including but not limited to risks related to storage, loading, transport, insurance and unloading. |
| 3.3. | CALASO shall provide the Other Party at its request with all the details required for to arrange adequate transport insurance upon the request of the other party. The Other Party acknowledges and accepts that CALASO will not transport Products without adequate transport insurance. The costs in relation to (arranging for) transport insurance shall always be for the Other Party. |
| 3.4. | If it has been agreed that CALASO is responsible for transport, the Other Party shall as soon as possible provide CALASO with the details required for transport, including but not limited to the correct and complete Customs documents. The Other Party shall bear the risk regarding the completeness and/or correctness of the details. Any delay in delivery time due to a delay at Customs, whether or not this is due to the incomplete or incorrect provision of details by the Other Party, shall be for the Other Party's risk and expense. |
| 3.5. | If Products are not accepted by the Other Party due to force majeure or due to its failure to comply with its acceptance obligations, or if they cannot be transported to their destination, CALASO shall be entitled to store these Products at the Other Party's risk and expense, and may require payment without the Other Party being entitled to suspend payment. |
| 3.6. | If the Other Party fails to meet its acceptance obligations, CALASO shall be entitled to sell the Products following expiry of a period of 4 weeks after the Products should have been accepted, and to do so on behalf of the Other Party and at a reasonable price to be determined by CALASO. In that case, CALASO shall be entitled to set off the purchase price paid to the Other Party against all its claims against that party, including its compensation claims. |
| 3.7. | The loss of or damage to the Products after the risk has been transferred to the Other Party shall not release the Other Party from its obligations to pay the price, unless the loss or damage can be fully attributed to an intentional act aimed at causing that damage or gross negligence on the part of CALASO. |
| 3.8. | Stated and/or agreed delivery terms provided by CALASO are always estimates and are never firm deadlines. Delivery times shall not commence until advance payment has been received by CALASO. CALASO reserves the right to deliver the agreed quantity of goods in batches. If payment in advance has been agreed, the ordered goods will be reserved for a period of 14 days. If no payment has been received following expiry of that period, CALASO shall have the right to deliver the goods to third parties. |
| 3.9. | The Other Party is not entitled to dissolve the agreement due to the expiry of a stated deadline before it has given CALASO, after its failure to deliver within the agreed delivery term, a reasonable period of time in writing to deliver the goods, and delivery within that period has not taken place either. |
| 3.10. | The period referred to in the previous clause shall not be less than 1 (one) month. |
| 3.11. | The Other Party shall not be entitled to dissolve the agreement if the late delivery can be (partly) attributed to the Other Party. |
ARTICLE 4. INABILITY TO COMPLETE THE ORDER AND FORCE MAJEURE
| 4.1. | CALASO shall be entitled to suspend performance of its obligations if it is temporarily prevented from complying with its obligations due to circumstances which could not be anticipated when the agreement was concluded, and which are beyond its control. |
| 4.2. | Circumstances that cannot be anticipated by CALASO and which are beyond its control include, but are not limited to, the circumstance that suppliers and/or subcontractors fail to comply (in good time) with their obligations, weather, earthquakes, fire, loss or theft of tools, loss of materials, raw materials, ingredients, defective machinery, road blockades, strikes or stoppages, war, safety hazard, transport, import or trade restrictions. |
| 4.3. | CALASO shall be entitled to dissolve the agreement if it is unable to fulfil its obligations as a consequence of a circumstance as referred to in this article. If CALASO has suspended its obligations for a period of more than 6 months owing to a circumstance as referred to in this article, the Other Party shall be entitled to dissolve the agreement for that part for which compliance has been suspended. |
| 4.4. | CALASO shall not be liable for any damage whatsoever caused by dissolution or suspension on the basis of this article or as a consequence of a circumstance described in this article. |
ARTICLE 5. RETENTION OF TITLE
| 5.1. | CALASO shall retain the ownership of all the goods supplied and to be supplied until the Other Party has paid in full all that he owes to CALASO under existing and future contracts, including the obligation to pay interest and other (collection) costs, and any compensation and payments due for supplied services. |
| 5.2. | If it is necessary to establish which Products are covered by the aforementioned retention of title, the administrative records kept by CALASO shall be binding between the parties for the determination of the scope of the retention of title between the parties. |
| 5.3. | All the Products of the type that are supplied by CALASO to the Other Party shall be deemed to have been supplied by CALASO and by no other than CALASO. |
ARTICLE 6. PRICES
| 6.1. | If not explicitly stated to the contrary, all prices mentioned in by CALASO in its offers, order confirmations and agreements or any other quotation by CALASO are in US Dollars, based on delivery Ex Works and do not include VAT or any import duties, other taxes, charges and duties and the costs of transport, insurance, handling, pallets and pallet exchanges et cetera. |
| 6.2. | In the absence of agreement to the contrary between CALASO and the Other Party a rise in cost price-determining factors that takes place after concluding the agreement may be charged on to the Other Party if compliance with the contract had not yet been completed at the time of the rise. |
ARTICLE 7. PAYMENT AND ELIGIBILITY
| 7.1. | In the absence of written agreement to the contrary, payment shall be due in advance by bank transfer. The costs of payment transactions shall be borne by the Other Party. |
| 7.2. | If payment has not taken place within the agreed payment term, the Other Party shall be liable to CALASO for the payment of interest from the date of expiry of the payment term. The client shall pay an interest of 1% per month, unless the statutory commercial interest rate provided in art. 6:119a of the Dutch Civil Code is higher, in which case the client shall pay the statutory commercial interest. |
| 7.3. | The Other Party shall be liable for all judicial and extrajudicial costs actually incurred by CALASO which relate to the collection of its claims against the Other Party. |
| 7.4. | All amounts owed by the Other Party to CALASO shall be payable on demand if a payment term has been exceeded, the bankruptcy (or the equivalent thereof used in a different country) of the Other Party has been pronounced, the Other Party has applied for suspension of payment (or the equivalent thereof), if the Other Party (company) is dissolved or liquidated or discontinues its business operations, if the Other Party (being a natural person) makes an application for statutory debt adjustment (or the equivalent thereof), is placed in administrations or perishes. |
| 7.5. | Payments shall be made in US Dollars. |
| 7.6. | If the Other Party fails to meet its payment obligations, the Other Party shall be obliged on CALASO's request to provide CALASO with what it judges to be adequate security payment. If the Other Party fails to meet this request within the set time period, CALASO shall be entitled to dissolve the contract and to recover its loss from the Other Party. |
| 7.7. | The Other Party shall not be entitled under any circumstance to set off its claims against CALASO against its payment obligations to CALASO in any capacity. |
| 7.8. | CALASO shall always be entitled to set off its claims against the Other Party against its payment obligations to the Other Party in any capacity. |
ARTICLE 8. GUARANTEE AND INDEMNIFICATION
| 8.1. | The Products to be supplied by CALASO are in conformity with the usual requirement and standards that can reasonably be set in their regard at the time of delivery in the United States for normal use regarding the packaging of cosmetics, skincare, personal, home care, perfumes, nutrition, wellbeing, foods or apothecary. |
| 8.2. | CALASO does not guarantee that its Products are suitable for the intended use by the Other Party. The Other Party is responsible for carrying out tests or having them carried out to determine whether the Products to be supplied by CALASO are suitable for the Other Party's intended use and the goods that the Other Party wishes to store, pack or put in them. CALASO does not guarantee the compatibility of its Products with products not supplied by CALASO, unless explicitly stated otherwise by CALASO. |
| 8.3. | CALASO shall not be liable for any damage if Products supplied by it do not comply with requirements and regulations from countries other than the United States. This includes, but is not limited to legislation, required permits, fiscal matters and import regulations. The Other Party shall bear the risks and liabilities if it imports the Products into countries other than the United States. |
| 8.4. | The Other Party shall indemnify CALASO and hold CALASO harmless against any and all claims of third parties based on the Products not complying with local legislation and regulations (outside of the United States), insofar as they have been placed in circulation by the Other Party or any companies affiliated to it in the relevant country. |
| 8.5. | The Other Party shall indemnify CALASO and hold CALASO harmless against any and all claims for damages of third parties resulting from (re)selling of the Products by the Other Party or from the use of the Products insofar as they have been brought into circulation in any country by the Other Party or any companies affiliated to it. |
| 8.6. | The Other Party must inform CALASO at all times about (packaging) requirements (including information obligations) that are applicable in the countries, other than the United States, involved in the contractual relationship with the Other Party. This obligation also applies if CALASO supplies to the Other Party in bulk. |
| 8.7. | If the Other Party packs the Products itself, it shall indemnify CALASO and hold CALASO harmless against any damages suffered by CALASO as a consequence or in relation thereto. |
| 8.8. | CALASO guarantees the absence of material faults in the Products for one year following the date of supply to the Other Party. Damage to the Products caused by inexpert or inadequate use or treatment of them or their use for any purpose other than for which they were intended, including their use in combination with accessories not supplied by CALASO, as well as damage to the Products caused following the transfer of risk, is expressly excluded from the guarantee. CALASO cannot be held liable for damage to the Products caused by as a result of unsuitable storage by or unsuitable resources or machinery of the Other Party or by climatic or other outside influences. Contrary to the above, CALASO guarantees the seals for dry Products against defects for 6 (six) months following their supply to the Other Party. |
ARTICLE 9. PRODUCT INSPECTION AND COMPLAINTS PERIOD
| 9.1. | The Other Party must inspect the Products, or have them inspected, within 5 (five) days after the date of delivery by CALASO. Visible defects or deviations from what has been agreed that are visible or can otherwise reasonably be detected through inspections should be reported in writing to CALASO, preferably immediately upon inspection, but within 5 (five) days at the latest following the date of delivery of the Products. If the Other Party has not inspected the goods (or have them inspected) within the said period it will be assumed as an established fact, in the absence of evidence to the contrary, that the Products have been delivered free from defects. |
| 9.2. | The Other Party will report in writing to CALASO other defects or other deviations (other than the visible defects or deviations that should have become apparent from the prescribed inspection obligation referred to in the previous paragraph) from what has been agreed within 5 days of their discovery. |
| 9.3. | If the Other Party fails to inform CALASO in writing of the defect within the time periods provided for in this article, it shall lose any right it may have to invoke any legal consequences occurring as a result of the fault or deviation from what has been agreed. |
| 9.4. | Minor deviations from stated measurements, weights, compositions or colors or other deviations as a result of which no material change is made to the composition, execution or applicability of the Products shall not entitle the Other Party to cancel or dissolve (in full or in part) the contract, or to refuse receipt or payment of the Products, or to claim damages. |
| 9.5. | If it is established that an item is faulty and this is reported in a timely manner, CALASO shall in its sole discretion decide to replace or repair it or provide payment in lieu of replacement or repair to the Other Party up to a maximum of the purchase price of the faulty item within a reasonable period of time following its return or, if its return cannot reasonably be considered possible, following written notification of the defect from the Other Party. |
| 9.6. | If a complaint is unfounded, the costs incurred by CALASO as a result, including any costs of investigation, shall be payable in full by the Other Party. |
| 9.7. | Complaints do not entitle the Other Party to suspend or reduce its contractual obligations. |
| 9.8. | If 1% or a lower percentage of the total quantity of glass Products ordered and delivered is not in conformity with the relevant standard, the Other Party shall not be entitled to submit a complaint and have those Products replaced by CALASO. |
| 9.9. | The administrative records kept by CALASO shall be binding between the Parties for the determination of the scope, quantity and specifics of the respective purchase order. |
ARTICLE 10. SUSPENSION AND DISSOLUTION
| 10.1. | CALASO has the right to suspend performance of its contractual obligations if the Other Party fails to meet any of its obligations to CALASO under this and previous contracts, including the obligation to pay the agreed purchase price, in the absence of written agreement to the contrary, in advance. |
| 10.2. | In addition to other rights to dissolution arising from the law and the contract, CALASO has the right to dissolve the contract by means of an extrajudicial statement to that effect if the Other Party is declared bankrupt (or an equivalent thereof), applies for suspension of payment (or an equivalent thereof) or discontinues or intends to discontinue its business operations. |
| 10.3. | Insofar as the Other Party has a right to dissolution, this right shall in the case of continuing performance contracts be limited to cancellation of the order or, if it concerns a partial defective or underperformance, part of the order in case of intend, gross negligence or willful misconduct of CALASO in performing its obligations. In that case, parties shall have a cancellation obligation with regard to all mutual performance of services related to the relevant order or the part thereof. The right to dissolution shall not apply to subsequent orders and/or deliveries. |
ARTICLE 11. INTELLECTUAL PROPERTY RIGHTS AND PACKAGING REQUIREMENTS
| 11.1. | In the absence of written agreement to the contrary, CALASO shall retain the copyrights and all intellectual property rights in the broadest sense to the Products it has delivered, the offers it has made, and the designs, images, drawings, (test) models, software, and (para) scientific tests conducted by CALASO conducted on the preservation and energizing properties of its glass Products et cetera, that it has issued. |
| 11.2. | The Other Party may only use the CALASO brand or other brand and trade names belonging to CALASO and other intellectual property rights for the sale of CALASO's Products. It is expressly not permitted to use the CALASO brand for any other purposes, including as part of an internet address or domain name. |
| 11.3. | The Other Party is expressly prohibited to use intellectual property rights of CALASO, including but not limited to the CALASO brand or other brand and trade names belonging to CALASO and other intellectual property rights belonging to CALASO, unless in relation to the sale of such Products to its customers. |
| 11.4. | The Other Party guarantees that all the (packaging) materials provided by the Other Party to CALASO are free from any intellectual property rights belonging to third parties. The Other Party indemnifies CALASO and holds CALASO harmless against any and all claims of third parties with regard to intellectual property rights on materials or data provided by the Other Party. |
| 11.5. | If the Other Party becomes aware that CALASO's Products infringe or may infringe any intellectual property right belonging to a third-party, or that a third-party infringes or may infringe any intellectual property rights of CALASO, the Other Party shall notify CALASO immediately specifying the circumstances of such (suspected) infringement. |
| 11.6. | In the event of a third-party infringing an intellectual property right of CALASO, the Other Party shall be obliged to cooperate in enabling CALASO to take judicial and extrajudicial action against this infringement. |
| 11.7. | The CALASO trademark shall at all times be used in combination with the mark "registered trademark" (TM). |
ARTICLE 12. STORAGE
| 12.1. | The Other Party shall act at all times in accordance with any instructions given by CALASO concerning the storage of the Products supplied by CALASO. |
| 12.2. | The Products delivered by CALASO must be stored in a dry place. The Other Party acknowledges that glass Products may corrode if stored in a damp or humid place and could be contaminated with odor of the packaging materials used. The Other Party cannot claim damages as a consequence of or in relation to the foregoing. |
ARTICLE 13. LIABILITY
| 13.1. | Other than in cases of intentional act or omission or gross negligence on the part of CALASO, CALASO cannot under any circumstances be held liable for damages caused by defects of, in or on Products delivered, services rendered, or work carried out by it. CALASO cannot be held liable for any errors made by personnel of CALASO, by auxiliary persons or by CALASO, unless in the event of intentional act or omission or willful recklessness. |
| 13.2. | The aggregate liability of CALASO shall in all cases be limited to the amount covered and paid out by its liability insurance in the subject matter. The liability of CALASO for non-compliance with a supply contract shall never exceed the amount of the invoice of the relevant order. |
| 13.3. | CALASO can only be held liable for direct losses. Direct losses are defined as all reasonable costs involved in establishing the cause and extent of the loss, insofar as this relates to losses provided for in this paragraph and the reasonable costs incurred to have the non-compliance of CALASO meet the contractual requirements, insofar as this can be attributed to CALASO, and reasonable costs incurred to prevent or mitigate losses, but only to the extent that the Other Party can demonstrate that these costs have led to mitigation of the direct loss. |
| 13.4. | CALASO cannot under any circumstances be held liable for indirect losses including, but not limited to, loss of profits, missed savings, company stagnation, personal injury and losses suffered by the Other Party or related third parties, even in cases of failure to meet corrective action in full or in part. |
| 13.5. | The limitation of liability provided for in this article shall also apply to the guarantees referred to in Article 8. |
ARTICLE 14. RECALL
| 14.1. | The Other Party shall not initiate any general or partial recall of Products supplied by CALASO without the prior written approval of CALASO. |
| 14.2. | The Other Party shall initiate a general or partial recall of Products supplied by CALASO on CALASO's first request. |
ARTICLE 15. CONFIDENTIALITY
| 15.1. | The Other Party is obliged to protect the confidentiality of all confidential information that comes to its notice in the context of the (contractual) relationship or any other source, on penalty of an immediately payable fine of € 10,000 per occurrence, without prejudice to CALASO's right to claim additional compensation for damages. |
ARTICLE 16. NOTIFICATIONS AND ANNOUNCEMENTS
| 16.1. | All notifications and announcements with a juristic effect directed by the Other Party to CALASO must be made in writing and by registered mail. |
ARTICLE 17. APPLICABLE LAW AND COMPETENT COURT
| 17.1. | All legal relationships to which CALASO is a party shall be subject exclusively to Dutch law with the exception of Dutch international private law and the Vianna Sales Convention (CISG), even if a contract is executed abroad in whole or in part, or if the Other Party to the legal relationship has its domicile abroad. An agreed alternative legal system can be demonstrated exclusively by means of a document signed by both parties. |
| 17.2. | In the absence of mandatory statutory provision to the contrary, the civil court in Assen shall be exclusively competent to adjudicate any disputes arising from agreements between CALASO and the Other Party. CALASO may however refer for adjudication a dispute arising from agreements between itself and the Other Party to any court that would be competent to adjudicate that dispute in the absence of a choice of forum. |