Canoa International Trading N.V. - General Terms and Conditions

Article 1: Definitions

1. In these General Terms and Conditions ("Terms and Conditions") the following terms shall have the following meanings:

CANOA: Canoa International Trading N.V. and all its branches located in Curaçao or abroad.

Customer: each natural person or legal entity with whom/which CANOA enters into an Agreement.

Agreement: each accepted offer of CANOA and each agreement concluded between CANOA and Customer, each modification of it, or addition to same.

Product(s): all physical goods and/or services that are the subject of an Agreement, as well as all physical results of provision of services, as, amongst other things, contracting of work, assembling, installation and/or advice by CANOA.

Article 2: Applicability

1. These Terms and Conditions shall constitute part of all existing and future Agreements between CANOA and Customer and shall apply to all other relevant acts and juristic acts of CANOA and Customer, except in as far as stipulations varying from same have been agreed on in writing. Deviating from or supplementing these Terms and Conditions shall only be possible if this has been recorded by CANOA in writing and shall only concern the Agreement in question.

2. These Terms and Conditions explicitly exclude Customer's general or specific conditions or stipulations, unless otherwise agreed on and confirmed in writing by CANOA. Applicability of the general terms and conditions of the Customer is hereby explicitly rejected.

3. In as far as the application of any clause from these Terms and Conditions would conflict with any stipulation in a written agreement - not being general terms and conditions - between CANOA and Customer, that clause shall not be applied, whereas the other clauses of these Terms and Conditions shall remain in full force.

Article 3: Offers, Formation of Agreements, Statements, and Labeling of Products and/or Services

1. An offer and/or quotation shall be without obligation and shall not bind CANOA, and shall only be deemed an invitation to place an order, unless CANOA has explicitly stipulated in writing a period within which same is to be accepted. An Agreement is only reached by written or electronic confirmation by CANOA or by the actual execution of the order or by a written or electronic order from the Customer. Oral agreements, irrespective of their nature or by whom or when made, shall have no legal effect, unless laid down in writing.

2. All statements by CANOA of numbers, sixes, weight, labels, and/or indications have been made carefully, but always subject to change. CANOA does not guarantee that same do not contain deviations.

 

Calculation or writing errors, and the like, in publicity, offers, prospectuses, publications, order confirmations, invoices, and/or other documents proceeding from CANOA shall not bind CANOA.

1. In the event of purchase for cash, the Agreement shall be concluded at the time of payment. The sales receipt issued by CANOA shall be deemed proof hereof. In the event of credit purchase, the Agreement between CANOA and Customer shall be concluded, as soon as Customer signs the sales receipt stating the products purchased. In the event that the products have been ordered at Customer's request, the Agreement shall be concluded at the time that CANOA accepts the order in writing, or that CANOA carries out the order.

2. The Customer vouches for the correctness of the by him provided information. In case of customization, or when goods are combined on directions of the Customer, the Customer vouches for the stated sizes and the provided information. When the Customer provides information orally or by phone, the information which is not confirmed in writing by CANOA comes for risk of the Customer. The Customer is obliged to immediately report to CANOA any incorrectness in provided or mentioned information which is in any way related to the Agreement.

3. CANOA is permitted to substantiated refuse an order and/or application or to connect special conditions to the delivery when CANOA has valid reasons to believe that the Customer will not meet up with his obligations. This valid reason can, amongst others, be a clear and recent negative experience of CANOA with the Customer. When requested to, CANOA will provide the concerning substantiation in writing to the Customer.

4. The acceptance of orders by CANOA is subject to and expressly conditioned upon the agreement of the Customer to be legally bound by these Terms & Conditions. CANOA may choose not to accept any orders in our sole discretion. CANOA require that all purchases of Products be made either (i) by legal entities, (ii) by individuals who are not minors and who can legally enter into binding contracts (typically persons 18 years of age or older, depending on where you live), or (iii) by minors with the permission of a parent or guardian who has accepted these Terms & Conditions on behalf of the minor making the purchase.

5. The Customer agrees that CANOA may cancel any online order at any time, even if it has been accepted by CANOA and even if the Customer has received an e-mail order confirmation, if CANOA believes that the order violates applicable law, including any law that requires proof of identity or age in order to purchase a particular Product. The Costumer also agrees that CANOA may not accept an order or CANOA may call the Customer to change the order before the Customer receives an e-mail order confirmation, if CANOA is not able to fill the order to the specifications (e.g., size, color, sheen, and/or base) the Customer has selected.

6. In the event of a cancellation of an order by the Costumer, the Customer shall pay an amount of 20% of the purchase price to CANOA in connection with a re-stocking fee. Article 6.3 will also additionally be applicable, depending on the date of the cancellation.

Article 4: Prices

1. The current sales prices are expressed in American Dollars. The price charged for a Product and applicable fees, will be the price and fees in effect at the time the order is placed by the Customer and will

 

be specified during the checkout process and in the order confirmation e-mail to the Customer. The sales prices shall be inclusive or exclusive of sales tax, subject to local legislation and/or local habits.

1. CANOA may change these sales prices, and may increase them, inter alias if the circumstances on which the sales prices are based have changed. Aforementioned changes include inter alias: increase of freight rates, import and export duties, or other domestic and foreign levies and/or taxes, wages, salaries, and social charges, changes in exchange rates, and price of raw and auxiliary materials. For the determination of changes in exchange rates, the date of arrival of the products shall apply.

2. If so requested, Customer can use the transportation services offered by CANOA. Transportation costs are not included in the sales price and shall be for Customer's account.

3. All details by CANOA of prices, specifications and other indications of goods on its website are done with care. However, CANOA can not guarantee the accuracy of this data or for the occurrence of any deviations. Apparent errors or errors in the offer do not bind CANOA. All prices posted on any website of CANOA are subject to change without notice. Accordingly, the CANOA has the right to dissolve or terminate agreements on the basis of any inaccuracies with immediate effect.

4. A composite price quotation does not oblige CANOA to perform part of the contract against a corresponding part of the specified price. Offers or quotations do not automatically apply to future orders. Article 5: Delivery time

5. The delivery time stated by CANOA is based on the circumstances at the time of concluding the Agreement, and, in as far as subject to third-party performances, on the information provided by these third parties to CANOA. CANOA shall observe the delivery time as much as possible.

6. In case of delay of the delivery, as a result of (temporarily) not being in stock of the ordered Products or any other reason, or when the delivery can not, or only partial, be performed, the Customer receives a timely, and if possible within fourteen (14) days after the concluding of the Agreement, message that such will be the case. In the event that the delivery time is exceeded, Customer shall not be entitled to any compensation in respect thereof. In that case, Customer also shall not be entitled to dissolution of the Agreement, unless the delivery time is exceeded to such an extent that Customer cannot be expected in reason to have the (part in question of the) Agreement continued. Only in that case, Customer may dissolve the (part in question of the) Agreement.

7. The delivery time shall take effect on the day of the formation of the Agreement (Article 3.3), provided that CANOA disposes of the information and products required for the performance of the Agreement. Otherwise, the delivery time shall take effect later, and this on the day of receipt by CANOA of the information and products required for the performance of the Agreement, it being understood that such information and/or products shall be provided/delivered within a reasonable period.

8. The time of delivery is not of the essence, and CANOA shall not be liable or responsible for any costs, charges, expenses, damages or for any penalty, liquidated or otherwise, for late or delayed delivery. All delivery dates, including any delivery dates specified in the order confirmation e-mail, are approximate and are not guaranteed.

 

Article 6: Delivery and Risk

1. All purchases of physical items from CANOA are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to the Customer upon our delivery to the carrier. Delivery shall take place at the address as indicated by the Customer, which delivery shall be performed by third parties who are not employed by CANOA. The Customer shall be responsible to arrange for such third party delivery services and payment for such delivery services.

2. The Customer is obliged to do everything that is reasonably necessary and/or desirable to make the delivery possible. CANOA may assume that the Products can be delivered with conventional means of transport on proper reachable places with a for the acquittal conventional procedures. When the transport and/or the acquittal requires the making of extra costs as a result of the absent of the aforementioned, the Customer is obliged to fully pay these extra costs.

3. In the event that products have been ordered at Customer's request, CANOA shall notify Customer of the arrival of the products. In the event that Customer does not take possession of the products within eight (8) days after this notification, CANOA may store the products for Customer's account and risk, and Customer shall owe storage charges for this. In the event that CANOA does not notify Customer of the arrival of the products, the eight (8)-day period referred to in the preceding sentence shall take effect at the time of expiration of the delivery time communicated to Customer by CANOA. The storage charges amount to 20% of the sales price per month. In the event that Customer has not taken possession of the products within six (6) months after expiration of the delivery time communicated, CANOA may sell these products privately to a third party for Customer's account and risk. Customer shall continue to owe the purchase price, augmented by interest and expenses (by way of compensation). In the event of a private sale to a third party, the amount due by Customer shall be reduced by the net proceeds of the sale to this third party.

4. Article 6.3 shall also apply, if the products are immediately deliverable from stock at the time of the formation of the Agreement, and Customer does not immediately take possession of the products, it being understood that storage charges shall become due and payable eight (8) days after the day of formation of the Agreement, and that CANOA may proceed to private sale of the products not taken possession of to third parties after expiration of eight (8) days after the day of formation of the Agreement.

Article 7: Inspection and Complaints

1. Customer is obligated to inspect the products delivered (or cause same to be inspected) immediately following receipt. Complaints shall be lodged in writing with CANOA, not later than within eight (8) days after receipt of the products delivered, in the absence of which Customer is deemed to have approved the delivery. Complaints shall not entitle Customer to suspend or set off the payment of the undisputed part of the claim.

2. Customer shall give any assistance required for the investigation of the complaint, inter alias by giving CANOA the opportunity to conduct an investigation (or cause same to be conducted) into the circumstances of the use and/or installation of the products.

Article 8: Payment

1. Customer shall pay the full purchase amount of the products delivered to it pursuant to the Agreement.

 

1. All payments shall be transferred to the bank account of CANOA as stipulated in the Agreement, or in another way to be indicated by CANOA, before or on delivery of the products, unless otherwise agreed on. All costs and other bank chargers in connection with the transfer of the purchase amount to the bank account of CANOA shall be borne by the Customer.

2. Customer shall pay the purchase amount in full, without discount or deduction, unless Customer and CANOA conclude a credit agreement for the (partial) financing of the purchases made. Customer may not set off the amount it owes CANOA against the amount CANOA eventually might owe Customer.

3. In the event that Customer does not pay the installments payable pursuant to a credit agreement on the due dates, Customer shall owe default interest at 1.5% per month on the amount then overdue, without any notice of default being required. In this respect, part of a month shall be deemed a full month.

4. In the event of failure to comply, or to timely comply, with the credit agreement, Customer shall be in default, without a notice of default being required. In that case, CANOA may demand immediate payment of its claim, including the installments not yet due, and/or have same collected without notice of default.

5. The data registered in the financial records and other written documents and/or data files of CANOA shall be full proof, unless Customer has proven the incorrectness of same. The Customer is obliged to inform CANOA beforehand and in writing about changes in address and/or name as well as any other for CANOA relevant information. All the consequences of not, or not in time, informing CANOA about these changes are for account and risk of the Customer.

6. Any costs, including collection costs, process server costs, and/or attorney's fees, both judicial and extrajudicial, incurred by CANOA to accomplish Customer's fulfillment of the obligations shall be for Customer's account. The extrajudicial costs amount to 15% of the principal sum, with a minimum of USD 1,000.00.

7. These Terms and Conditions, including Articles 8.1 through 8.7, shall also apply, if CANOA offers Customer an open account credit facility. Furthermore, an open account credit facility is subject to the following:

   • pursuant to this credit facility, Customer shall use its own consecutively numbered vouchers when making purchases at CANOA;

   • in the event that Customer has knowledge of any irregularity concerning its vouchers, Customer shall promptly notify the Department of Credit Management of CANOA hereof, stating the numbers of the vouchers to which the irregularity refers;

   • in the event that CANOA has proceeded to deliver the products based on a lost, stolen, or forged voucher of Customer, or a voucher of Customer that has been used unlawfully or illegally and/or drawn up falsely, without CANOA having received aforementioned statement and notification, if any, in advance, all consequences thereof shall be for Customer's account and risk;

   • therefore, CANOA also shall not be liable for the lack of authority (to sign) of Customer's representative, who makes purchases on Customer's behalf by using the vouchers;

   • periodically, Customer shall receive a statement of the purchases made by or on behalf of Customer during a period;

 

• Customer shall pay the purchase amount as stated on the periodic statement within the term of payment agreed on (but not later than within thirty (30) days);

• Customer shall owe default interest at 1,5% per month on this purchase amount or part thereof, if the purchase amount or part thereof has not been paid within the term of payment.

Article 9: Retention of Title

1. The ownership of the products delivered shall not pass to Customer until after he has fully paid all that he owes or will owe on account of the Agreement in question and/or for any other reason.

2. In the event of attachment, moratorium on payments, or bankruptcy, Customer shall promptly inform the process server levying the attachment, the administrator, or the bankruptcy trustee of CANOA's title.

3. Customer is obligated to inform third parties, who are put into the possession by Customer of the products delivered by CANOA, and/or for whom Customer carries out work, of CANOA's title to these products.

4. In the event that any product delivered by CANOA has become a component part of another movable or immovable property, then this shall not affect CANOA's retention of title. In as far as legally permissible, CANOA's product shall always be deemed the principle property, even if a considerable difference in value exists between the product delivered by CANOA and the other movable property, except in as far as CANOA waives its retention of title.

Article 10: Packaging

1. All packaging shall remain the property of CANOA, unless otherwise agreed on and confirmed in writing by CANOA.

2. Additional costs will be charged for packaging, on top of the purchase amount payable by Customer.

Article 11: Return and Exchange

1. Products that have been altered and/or damaged in any way through the fault of Customer and/or third parties cannot be returned or exchanged. Article 6.1 also applies for returns or exchanges.

2. When returning a product purchased at CANOA - it should be returned to its supplier - the purchase price shall not be refunded to Customer, but, instead thereof, he shall receive a supplier value coupon for the same amount. Returning a product is only permitted, however, if the following conditions are met: Customer requests a refund of the purchase price within thirty (30) days after the date of purchase, simultaneously submitting a) the original sales receipt, b) the unused and unworn product, and c) the original packaging. The value coupon shall only be valid one (1) year after the date of issue of the value coupon. All delivery costs in connection with the return shall be borne by the Customer.

3. Exchanging a product purchased at CANOA - it should be exchanged at its supplier - for another product is also possible, if Customer so requests within thirty (30) days after the date of purchase, simultaneously submitting a) the original sales receipt, b) the unused and unworn product, and c) the original packaging. All delivery costs in connection with the exchange shall be borne by the Customer.

4. The following products cannot be returned or exchanged:

 

• products sold at reduced prices because of a sale, on special offer, during a special campaign, because the products are already damaged (in part), or for whatever other reason;

• products sold per meter, as well as incandescent, low-energy, fluorescent, and halogen lamps, paint coatings, glues, cement, tiles, and locks taken out of their original packaging;

• products that CANOA at Customer's request has specially ordered, fabricated, mixed, adapted and/or customized;

• all products for which the supplier and/or manufacturer has not issued a warranty.

Article 12: Warranty

1. CANOA is never obligated to issue a warranty to Customer that goes beyond the warranty CANOA can claim towards its supplier.

2. The warranty period shall take effect at the time of delivery (Article 6.1). The sales receipt shall serve as certificate of warranty. Without submitting the sales receipt, Customer shall not be entitled to warranty.

Article 13: Liability and Release of Liability

1. CANOA shall not be liable for any damage of Customer and/or third parties, caused by and/or attributable to CANOA and/or a person and/or item for which CANOA is responsible. This exclusion of liability shall leave intact CANOA's obligation to comply with a warranty issued as referred to in Article 12 of these Terms and Conditions. Therefore, CANOA's liability is excluded fully for the rest, except in as far as Article 13.3 of these Terms and Conditions stipulates otherwise.

2. CANOA shall never be liable for damage caused by use contrary to the operating instructions of the product in question, if any. CANOA notably excludes any liability for consequential loss, immaterial damage, trading loss, and/or environmental damage.

3. The exclusion of liability of paragraph 1 shall not be applicable, if damage has been caused by intention or similar gross negligence of CANOA and/or its subordinates, or if liability ensues from the statutory product liability regulation.

4. The Customer agrees to (i) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the Products, including, without limitation, special care and practices relating to your use of the Products; (ii) instruct your employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of the Products; and (iii) comply with applicable safety and environmental laws and take action necessary to avoid spills or other dangers to persons, property or the environment. In the event the Products are intended for professional use only, the Customer represent and warrant to CANOA that it is a professional user experienced and knowledgeable regarding how to properly and safely handle, store, dispose of, and use such Products.

Article 14: Force Majeure

1. In the event that CANOA cannot fulfill its obligations pursuant to an Agreement towards Customer due to a non-attributable failure (force majeure), the performance of the part in question of that Agreement shall be suspended.

 

1. In the event that any event of force majeure has lasted two (2) months, or as soon as it has been determined in reason that it will last at least two (2) months, both parties may dissolve in writing the Agreement in whole or in part, without parties being obligated to pay any damages to each other.

2. Force majeure shall be taken to mean each event beyond CANOA's control, which impedes the fulfillment of its obligations in whole or in part towards Customer, or due to which CANOA cannot be required in reason to fulfill its obligations, irrespective of whether this event was also foreseeable at the time of concluding the Agreement. These events shall include inter alias: strike, power failures, fire, engineering interruption, discontinuation and/or government measures, as well as the absence of any permit to be obtained from the public authorities, and/or other problems that manifest itself, beyond CANOA's control, at CANOA, CANOA's suppliers, and/or in the transportation provided by CANOA itself and/or third parties.

Article 15: Default and Dissolution

1. In the event of failure by Customer to fulfill any obligation arising for it from any Agreement and/or these Terms and Conditions, and/or to fulfill same by the stipulated date, Customer shall be in default without any notice of default, and CANOA may suspend the performance of that Agreement and agreements directly related thereto (e.g. on transportation by third parties), until payment will have been guaranteed sufficiently, or dissolve that Agreement and agreements directly related thereto in whole or in part.

Article 16: Final Provisions

1. Without CANOA's permission in writing, Customer may not transfer in whole or in part its rights and/or obligations arising from an Agreement with CANOA.

2. The Parties agree to submit any dispute arising from the Agreement to arbitration before the Court of First Instance of Curaçao according to the rules of the UNCITRAL Model Law on International Commercial Arbitration, as adopted by the United Nations Commission on International Trade Law. The proceedings shall be in English and the award final and binding.

3. These Terms and Conditions and all other agreements between CANOA and Customer shall exclusively be governed by the laws of Curaçao.

4. These General Terms and Conditions are available in the English language. Filed November 14, 2017 at the Registry of the Court of First Instance in Curaçao and at the Curaçao Chamber of Commerce and Industry.