General conditions

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GENERAL CONDITIONS OF SALE

 

  1. General
    • The present general conditions of sale (“Conditions”) shall apply to all offers made by Bekina Inc., 22 W. Washington Street, Suite 1500, Chicago, Il, 60602 (“Seller”), to all agreements between the Seller and its customer (“Customer”), to all orders placed with the Seller, to all sales and deliveries to the Customer and to all invoices issued by the Seller with regard to the Seller’s products (“Products”), insofar as not stipulated otherwise in special terms and conditions or agreements. In the case of a contradiction between these Conditions and any separate agreement concluded between the Seller and the Customer, the stipulations of the separate written agreement prevail. Via the simple act of placing an order, the Customer acknowledges acceptance of these Conditions. Acceptance of these Conditions also implies that the Customer fully renounces the application of its own general (purchase) terms and conditions. The latter are binding on the Seller only if the Seller has explicitly accepted these in writing.
    • The Seller is entitled to modify these Conditions from time to time. The revisions shall apply to future (and not to confirmed) offers, quotes, agreements, orders, sales, deliveries and invoices only, unless agreed upon otherwise in writing.
  2. Offers, orders and formation of agreements
    • All of the Seller’s offers are without obligation, are intended for information purposes only and are not binding on the Seller. The latter is bound only by each order placed by the Customer
    • Orders are subject to acceptance or rejection by the Seller. Acceptance is subject to availability for delivery of the Products covered and to the Seller’s price in effect at the time of shipment, unless agreed upon otherwise in writing. An agreement is formed between the Seller and the Customer only via the signing of an order confirmation or any other written agreement by an authorized representative of the Seller. Intermediaries, representatives, appointees, salespersons, salaried and hourly employees of the Seller are not authorized to legally bind the Seller.
    • Any cancelation of a confirmed order by the Customer must be done in writing. In case of cancellation of an order by the Customer after confirmation of the order by the Seller, the Customer will owe fixed damage compensation equal to 25% of the total agreed price of the order, without prejudice to the right of the Seller to claim greater damage compensation.
  3. Delivery
    • Unless agreed upon otherwise, deliveries and shipments are EX Works (Incoterms 2010) at DSV Aurora Warehouse, 800 Bilter Road, 60502 IL Aurora, Chicago – USA.
    • Delivery times are provided for information purposes only and are non-binding, unless agreed upon otherwise in writing. Delays in delivery or exceeding the delivery periods cannot be the occasion for any liability on the part of the Seller, for any type of damage compensation or for cancellation of the order. The Seller retains the right to make partial deliveries, which then constitute partial sales. The partial delivery of an order may not serve as justification for the refusal to pay for the Products delivered.
  4. Price and payment
    • The order will be invoiced at the prices and conditions indicated in the Seller’s order confirmation. The Seller is entitled to amend such prices, subject to simple notification to the Customer, to the evolution of its fixed and/or variable costs due to the change in the structure thereof, including, but not limited to raw materials, tools, products, wages, energy, exchange rates and governmental measures of any kind.
    • The prices are excluding sales taxes and the transportation costs are for the Customer’s expense,unless mentioned otherwise on the offer or in the contract.
    • All invoices are payable without any delay or discount to the bank account communicated by the Seller within thirty (30) days after the invoice date. All expenses, costs and taxes (including bank costs) resulting from the payment are to be covered by the Customer. Each invoice is considered as accepted in the absence of protest by registered letter within ten (10) days after its receipt. Protest of the invoice does not suspend the Customer’s payment obligation. All invoices are made and to be paid in EUR. Conversions are not accepted.
    • In the case of full or partial non-payment by the due date, the Customer owes interest of 10% of the invoiced amount, with a minimum of 100 EUR, without prejudice to the right of the Seller to claim greater damage compensation. All collection charges are for the expense of the Customer. In the case of non-payment of one invoice by the due date, the Seller is also entitled to suspend the Customer’s remaining orders and deliveries until full payment of the invoice, without preliminary notice of default or damage compensation, and all other not yet overdue debts by the Customer become due and are payable immediately, legally and without preliminary notice of default. Setoff on the part of the Customer is explicitly excluded.
    • If the trust of the Seller in the creditworthiness of the Customer is undermined by legal actions against the Customer and/or demonstrable other events that call into question confidence in the proper execution by the Customer of the concluded agreements and/or make such impossible,, the Seller retains the right to suspend the entire order or a part thereof, and to demand suitable guarantees from the Customer. If and as long as the Customer refuses to provide these, the Seller retains the right, without the Customer being entitled to any damage compensation, to cancel the order or the not yet-delivered part thereof, without prejudice to the right of the Seller to compensation for the damage. In the case of dissolution of the agreement due to actions of the Customer, the Customer shall pay damage compensation of at least 12% of the total price of the order, without prejudice to the right of the Seller to claim greater damage compensation.
  5. Transfer of title and risk
    • Title to the delivered Products shall remain the property of the Seller and shall not pass to the Customer until full payment of the principal sum, interest, costs and possible damage compensation by the Customer to the Seller. Until the moment of full payment, the Customer shall attach a sign to the delivered Products that clearly and legibly indicates that the delivered Products are the property of the Seller and the Customer shall ensure that the Seller is named on the insurance policy as the loss payee. The Customer is entitled to sell the Products to its customers on the understanding that the Seller, due to its retention of ownership of the sold Products, has the exclusive right to require the Customer to return the Products to the Seller until the moment that ownership of the Products transfers to the Customer subject to the condition that the Products still exists, and if the Customer refuses to do so, to enter the buildings of the Customer or of a third party where the Products are located in order to retrieve the Products. The Customer agrees that the Seller may enter its offices within the framework of the above-mentioned objectives. The advances paid by the Customer will not be returned and remain available as compensation for possible losses in the case of resale.
    • The Seller is entitled to retain property of the Products that have already been paid for until the full payment of all the Products delivered by the Seller. In that case the Products delivered and already paid for serve as security for the Products that remain unpaid.
    • Unless agreed upon otherwise in writing, the risks associated with the Products will be transferred to the Customer from the moment that the sold Products are made available and suitably packaged in accordance with article 3.1 (ie, Ex Works (Incoterms 2010) at DSV Aurora Warehouse, 800 Bilter Road, 60502 IL Aurora, Chicago – USA.).
  6. Description of the Products to be delivered
    • Unless the parties agree otherwise in writing, the Seller’s designs, drawings, measurements, instruction packages and other information only contain a description of the Products. The Customer shall not be able to rely on deviations from this description, whatsoever their nature, to refuse payment, to claim annulment, dissolution or rupture of the agreement or to claim damages.
  7. Defects, guarantee and liability and Limited Warranty
    • Upon delivery the Customer must check whether the delivered Products exhibit visible damage or defects. Each complaint concerning visible defects, missing Products or a non-compliant delivery must be communicated to the headquarters of the Seller by registered letter within eight (8) days after receipt of the Products, with reference to the invoice number, delivery order or the packing slip. After this period has expired, the Products are considered to have been accepted without reservation. Late complaints are inadmissible. Complaints do not suspend the Customer’s payment obligation. Possible return of the Products shall only take place with the prior written confirmation of the Seller. Only Products in good condition and in their original state and packaging may be returned to the Seller.
    • All complaints for hidden defects that are not the result of force majeure, of an incorrect intervention by the Customer or by third parties, or due to normal wear and tear, must be communicated to the Seller by registered letter within one (1) month after discovery of the defect, and in any case within one (1) year after delivery of the Products.
    • The Seller (including its appointees, representatives and/or employees) is only responsible for damage caused due to non-compliance with its contractual obligations, if and insofar as this damage is caused by its fraud, deception or intentional or serious failure. The Seller shall not be liable for any loss resulting from any delay in the delivery and/or damages to the Products during transport. The Customer’s exclusive remedy and the Seller’s sole guarantee with regard to defected Products shall be limited to a refund of the purchase price of the Products or replacement of the delivered Products. The choice of remedy belongs to the Seller’s discretion. In the event that the Seller would be held liable for any damage, the maximum liability of the Seller is always limited to the invoice value for that specific product of the Customer’s order to which the complaints is applicable, or to the part of the order that the liability concerns. The Seller may never be held liable for indirect damage, lost profit, missed savings or damage to third parties. Only the Customer is responsible for the use it makes of the Products.
    • The warranty described in articles 7.3 is in lieu of all other written, express or implied warranties. The Seller expressly disclaims any express or implied warranty of merchantability or fitness for particular purpose. All Products are supplied to the Customer “as is” except for the warranty described in article 7.2. This limitation of warranty shall apply to all transactions between the Seller and the Customer.
    • The Customer expressly agrees to have received all technical specifications from the Seller and acknowledges it has knowledge of the Products’ characteristics and specifications, the safety records of the Products, and the applicable rules and laws concerning the use, transport, handling, and safety standards of the Products. The Customer expressly agrees that the Products purchased will not knowingly be sold or given as samples to third persons who may be handling and using the Products in a manner contrary to the Seller’s recommended use, specifications or law. The Customer expressly agrees to refrain from copying, counterfeiting, duplicating or otherwise imitating the Products for manufacture or sale.
    • Limited Warranty
      Warrants solely to those consumer purchasers ("purchasers") who, for their own use or use by another consumer end user, purchase the Bekina® branded products ("Products") directly from an authorized seller ("Authorized Seller") that the Products manufactured by Bekina® are free from defects in material and workmanship for a period of 90 days from the date of purchase. This warranty covers normal use only of the Products. Will not assume responsibility for any failure of the Products incurred by misuse, abuse, neglect or exposure to a substance or an environment that degrades the Products. Normal sole wear of the Products is not considered to be a defect in material and workmanship. What is covered: Defects in materials and workmanship. What is not covered: (i) Misuse because of cutting obstacles (barbwire) or excessive kicking/abrasion. (ii) Damage caused by improper cleaning of boot (water & ventilation) (iii) Boot is not worn out or too old (iv) Wear and tear or exposure to environments not recommended for the product. (v) Damage due to lack of maintenance (cleaning / conditioning). This warranty may also be void if the user applies any material not recommended for footwear such as acids, oils, or other chemicals that result in damage to the footwear. Fit related problems, the product cannot be returned after being worn. Claims made outside the warranty period. Products considered to be defective must be returned to the Authorized Seller from which the Products were originally purchased or issued with the original purchase receipt or issuer's invoice record. Our policy is to honor Product warranties only on Products purchased from an Authorized Seller of Bekina® Products and only when accompanied by the original purchase receipt or proof of purchase. If Products are purchased from an unauthorized seller this limited warranty will not be valid. Defective Products will be replaced at the discretion of Bekina ®. Any replacement will be for the same style and size of the returned defective footwear Products. This is a limited warranty. The obligations set forth in the preceding paragraphs are Bekina®'s sole obligation and the purchaser's exclusive remedy. Any implied warranty of merchantability or fitness for a particular purpose that may be applicable to the Products is limited in duration to the duration of this limited warranty. Some States do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. Bekina® shall not be liable for any direct or indirect, incidental or consequential damages even if it has been advised of possibility of such damages. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This limited warranty shall be governed by, and construed and interpreted in accordance with, the local laws of the State of Chicago (without application of conflicts of laws principles), except only to the extent replaced or precluded by other law of mandatory application. This warranty gives you specific legal rights, and you may also have other rights which vary from State to State Limited Warranty
  8. Force majeure
    • The Seller is legally absolved and is not obliged to meet its obligations to the Customer in the case of force majeure (such as war, partial or general strikes, operational accidents, fire, equipment breakdowns, bankruptcy of suppliers, lack of raw materials, etc). Force majeure never entitles the Customer to terminate the agreement or to any form of damage compensation. Force majeure on the part of the Customer is explicitly excluded.
  9. Termination
    The Seller has the right to terminate the agreement with the Customer at any time, with immediate effect, without judicial authorisation, without preliminary notice of default and without payment of any damage compensation in the following cases: (i) if the Customer remains in default with respect to the (timely) fulfillment of one or more contractual obligations, despite a written notice of default in which a period of at least seven (7) calendar days is observed, (ii) in the case of suspension of payment or (the application for) bankruptcy protection, (iii) in the case of liquidation or discontinuation of the activities of the Customer, or (iv) if (a part of) the assets of the Customer are seized or (v) in the case the customer is acquired by a competitor of the Seller. In the case of dissolution, the Seller also retains the right to claim compensation for all costs and damage incurred, and all claims by the Seller upon the Customer are payable immediately.
  10. Miscellaneous
    The Customer is entitled to sell the Products via its own website to the extent that the Customer’s website meets the Seller’s guidelines and quality standards relating to the name, layout, logo and “look and feel” of the website. The Customer expressly agrees to refrain from selling the Products via online sales platforms run by third parties such as www.amazon.com.
    This prohibition also applies when the Customer resells the Products. To this end, the Customer shall contractually ensure that this prohibition is imposed on its own customers, for example by reproducing such a clause in its General conditions of sale.
    The Customer expressly waives all provisions contained in any of the Customer’s correspondence or forms involved in the sale that would negate, limit, extend or conflict with these Conditions. The waiver by the Seller of breach by the Customer of any provision of these Conditions shall not constitute a waiver of any of other breach by the Customer.
    If any (part) of the provisions of the Conditions is held to be invalid, void or unenforceable by a duly competent court or arbitrator, this shall not affect the validity and enforceability of the other stipulations of these Conditions. In such a case, the Seller and the Customer shall negotiate in good faith, and the invalid or unenforceable stipulation will be replaced by a legally valid and enforceable stipulation that fits as closely as possible the objective and the intent of the original stipulation.
    The Conditions apply to the largest possible extent permissible under mandatory law.
  11. Intellectual property
    Without prejudice to any written agreement stipulating otherwise, all intellectual property rights in the Products remain the exclusive property of the Seller and are never transferred to the Customer.
  12. Applicable law and jurisdiction
    All agreements to which these Conditions apply, as well as all other agreements arising out of these, shall exclusively be governed by and construed in accordance with US law.
    Any disputes arising out of or in relation with this agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by an arbitral tribunal that shall be composed of three arbitrators, appointed in accordance with those Rules. The seat of the arbitration shall be New York and the arbitration shall be conducted in the English language.