Article 2 General
2.1 These general terms and conditions are applied by GMS Group Holding B.V., as well as its operating companies and subsidiaries, including in particular GMS Europe GmbH, JLM Lubricants B.V. and GMS Automotive Asia Pacific.
2.2 The provisions of these general terms and conditions apply to every offer and agreement between GMS and buyer insofar as there is no express deviation from these terms and conditions agreed in writing.
2.3 The current terms and conditions also apply to all agreements with GMS, involving work whereby GMS uses the services of third parties.
2.4 The applicability of the general terms and conditions of the buyer is expressly excluded, unless the parties agree otherwise in writing.
2.5 If one or more provisions in these general terms and conditions become invalid or nullified, the other provisions of these general terms and conditions continue to apply.
Article 3 Offers
3.1 All offers, in whatever form, are without obligation, unless the offer stipulates a term for acceptance.
3.2 Any budgets, plans or other documents accompanying an offer will remain the property of GMS at all times and must be returned postage paid at the first request. They may not be reproduced or shown to third parties without the consent of GMS.
3.3 Sending offers and/or (other) documentation does not oblige GMS to accept an order.
3.4 GMS may refuse an order or a deal or attach terms and conditions to an order without stating reasons.
Article 4 Agreement
4.1 Agreements to which GMS is party first apply as closed after GMS has accepted an order from the buyer or after the actual delivery ex GMS warehouse of the sold goods by GMS to the buyer.
4.2 The order confirmation by GMS is expected to provide clear and complete details of the agreement, unless the buyer has protested immediately against it in writing.
4.3 For transactions for which, due to their nature and size, no quotation or order confirmation are sent and/or verbal agreements made, the invoice is expected to represent the agreement accurately and completely, except in the case of a complaint within 10 working days of the invoice date.
4.4 Any later additional agreements or changes, as well as verbal undertakings made by or agreements made with employees, personnel and/or representatives of GMS, are only binding to GMS if these have been confirmed in writing to the buyer.
4.5 If a natural person signs an agreement on behalf of or at the expense of another natural person and/or legal person, he declares - by signing the consignment note/order – that he is authorised to do so. This person, in addition to the other natural person and/or legal person, is jointly and severally liable for all commitments related to the agreement.
4.6 A composite quotation does not oblige GMS to deliver some of the products included in the offer or quotation at a corresponding percentage of the given price.
4.7 Any agreement is entered into by GMS under the suspensive condition that the buyer – solely at the discretion of GMS – appears to be sufficiently creditworthy for the financial fulfilment of the agreement.
4.8 During or after entering the agreement and before continuing (further), GMS is entitled to demand assurance from the buyer that the buyer will fulfil both his payment and his other obligations.
4.9 Furthermore, if it considers this necessary or desirable for the correct fulfilment of the order and after consultation with the buyer, GMS is authorised to engage others in the execution of the agreement, the costs of which will be charged to the buyer.
Article 5 Prices
5.1 The prices in the offers/catalogues/price lists apply for delivery ex GMS warehouse, in a currency to be determined by GMS (euro or dollar), excluding VAT, import duties and government levies, excluding shipment, transport, export, insurance, loading, packaging and administration costs, unless parties expressly agree otherwise.
5.2 Discounts may only be agreed in writing.
5.3 After 2 months, GMS may implement price increases, if between the moment of offering/accepting and delivery, a VAT increase or other statutory or cost price increase of more than 5% has taken place.
5.4 GMS is entitled to adjust its prices annually by at least the inflation rate.
Article 6 Delivery
6.1 Delivery is ex warehouse, unless parties have agreed otherwise. Delivery takes place to the last delivery address of the buyer known to GMS.
6.2 Buyer is obliged to accept the goods at the moment when GMS delivers them or has them delivered, or at the moment when these are available according to the agreement.
6.3 If the buyer refuses to accept the goods or fails to provide information or instructions essential for the delivery, GMS is entitled to store the goods at the expense and risk of the buyer. If the buyer does not take delivery of the goods within two months, GMS is entitled to sell them to another party. If this is not successful, GMS is entitled to destroy the goods. The damage suffered by GMS in the resale or destruction will be charged to the buyer.
6.4 If GMS has stipulated a term for delivery, this is indicative. An indicative delivery time is therefore never a firm date. In the event that the delivery term is exceeded, the buyer should give GMS written notice of default and allow GMS a reasonable period in which to fulfil its commitment.
6.5 If GMS requires data from the buyer relating to the execution of the agreement, the delivery time commences once the buyer has made this information available to GMS.
6.6 GMS is entitled to deliver the goods in part consignments. GMS is entitled to invoice part deliveries separately.
Article 7 Cooling off period
7.1 Exclusively for orders by consumers involving distance selling, the offer will also include a cooling off period of seven working days, starting the day after delivery of the goods. GMS is free to deliver certain goods exclusively from its physical shop. For such deliveries, there is no cooling off period.
7.2 During the cooling off period, the buyer has the right of withdrawal, whereby he may return the received goods in the original and undamaged packaging, with no obligation on his part other than payment of the costs of return postage.
7.3 Restrictions or exclusions to the cooling off period will be clearly stated in the offer. The buyer relinquishes his right to dissolve the agreement by using the article.
7.4 The buyer may only invoke the cooling off period in the manner described by GMS in the offer and/or at delivery.
7.5 If the buyer invokes his right of withdrawal, GMS is required to repay any costs already paid by the buyer, including shipping costs, within 30 days. The buyer is responsible for paying the costs of returning the goods.
Article 8 Models, images
8.1 The models, images, figures, measurements, weights or descriptions included in the offer/advertisements/price lists are only shown as an indication.
8.2 If the buyer is shown a sample/image, then parties will assume that this is an indication, unless expressly agreed otherwise that the product to be delivered totally corresponds with that sample/image.
Article 9 Inspection, complaints
9.1 Buyer is required to inspect the delivered goods at the moment of delivery. The buyer must hereby inspect whether the quality and quantity of the delivered goods are as agreed.
9.2 Visible defects and deviations should be noted on the bill of lading/packing slip and reported in writing within 24 hours; failure to do so will infer that the delivered goods are in order. Non-visible faults should be reported to GMS in writing within 14 days of delivery. Complaints about the invoice should be submitted in writing within 30 days of the invoice date.
9.3 Once the periods mentioned above have lapsed, the buyer is deemed to have approved the delivered goods and/or the invoice.
9.4 If a complaint is submitted in time, the buyer is still obliged to accept and pay for the bought goods. If the buyer wishes to return faulty goods, this must be done after obtaining the written consent of GMS. Goods must be returned postage paid in undamaged condition and in their original packaging using a returns form.
9.5 The following situations may never be a reason for a complaint:
- deviations in colour, weight, composition and size of less than 10%;
- printing and typing errors in the catalogue/offer/price list.
9.6 At the first request, the buyer is required to enable GMS to inspect the goods with regard to the correctness of the complaint.
9.7 If a complaint is founded, GMS will replace or repair the delivered goods, unless the buyer can prove that this is no longer relevant. The buyer should make this known in writing. In all cases, however, GMS is only liable within the limits of the provisions referred to in the Articles “Liability” or “Guarantee”.
Article 10 Payment
10.1 Payment must be made within 30 days of the invoice date as instructed by GMS and in a currency determined by GMS, unless agreed otherwise by the parties. Objections regarding the invoice amount do not suspend the obligation to pay.
10.2 If the buyer fails to pay within the agreed period, the buyer is legally in default. The buyer must then pay interest of 1.5 % per month or a part of a month, unless the statutory interest or the statutory commercial interest is higher, in which case the highest interest is payable. The interest over the due amount will be calculated from the moment that the buyer is in default to the moment when payment is made in full.
10.3 In the case of liquidation, (application for) bankruptcy, acceptance of the buyer in a statutory debt rescheduling arrangement in compliance with the Debt Rescheduling (Natural Persons) Act, guardianship order of the buyer, death of the buyer, transfer or termination of the buyer’s business, attachment or (provisional) moratorium on payment of buyer, claims by GMS with respect to the buyer become due and payable.
10.4 GMS is entitled, if agreed, to charge a credit restriction surcharge of 2%, which is not due if payment is made within 8 days of the invoice date.
10.5 Payments initially go towards reducing the costs, then to reducing the historical interest and finally to reducing the principal sum and the current interest.
Article 11 Collection costs
11.1 If buyer is in default or fails to fulfil his obligations (in a timely fashion), all reasonable costs incurred to achieve payment out of court are charged to the buyer. The extrajudicial costs amount to:
- over the principal sum up to € 2,500 15% over the principal sum, with a minimum of € 40 and a maximum of € 375.
- over the principal sum up to € 5,000 € 375 + 10% over (principal sum minus € 2,500) with a maximum of € 625.
- over the principal sum up to € 10,000 € 625 + 5% over (principal sum minus € 5,000) with a maximum of € 875.
- over the principal sum up to € 100,000 € 875 + 1% over (principal sum minus € 10,000) with a maximum of € 2.775.
- over the principal sum above the € 100,000 € 2,775 + 0.5% over (principal sum minus € 100,000) with a maximum of € 6,775.
Amounts in Euros or equivalent value in other currency.
11.2 If GMS has incurred higher costs than were reasonably necessary, these costs will also be eligible for compensation. Any reasonable judicial foreclosure costs will also be charged to the buyer.
Article 12 Retention of title
12.1 All delivered goods remain the property of GMS, until the moment when all deliveries and work or planned deliveries and work performed with respect to the agreement have been paid by the buyer, including interest and costs.
12.2 Buyer is not authorised to pledge, hire, encumber in any way or, in the case of a buyer registered with the EU, to sell any goods falling under the retention of title to buyers outside the EU, unless agreed otherwise by the parties.
12.3 If third parties serve a writ of attachment to the goods delivered under the retention of title or wish to establish rights thereon, the buyer must inform GMS as soon as possible.
12.4 Buyer must insure the goods falling under the retention of title for their new value. The damages paid by the insurer replace the above-mentioned goods and are paid to GMS.
12.5 If GMS wishes to exercise the property rights described in this article, the buyer hereby grants unconditional and irrevocable consent to GMS or third parties to be appointed by GMS to access all those places where the property of GMS is situated and to remove them.
Article 13 Right of retention
13.1 With regard to all goods of or on behalf of the buyer which are located at GMS, regardless of the reason, GMS has the right to withhold these goods as long as the buyer has not fulfilled his commitments to GMS.
13.2 GMS is obliged to keep these goods according to good commercial practice without the buyer being entitled to any damages in the case of destruction, partial loss and/or damage through no fault of GMS. The risk relating to the goods thus remains with the buyer.
Article 14 Suspension and dissolution
14.1 GMS is authorised to suspend fulfilment of its objections or to dissolve the agreement, if:
- the buyer fails to fulfil his obligations arising from the agreement, fails to fulfil them in time or not fully; - after signing the agreement, having ascertained the circumstances GMS has good grounds to fear that the buyer will not fulfil his obligations, or not fulfil them in time or in full. In the event that there are good grounds for fearing that the buyer will only partially or not satisfactorily fulfil his obligations, the suspension is only admitted insofar as is justified by the shortcoming;
- the buyer is requested to provide security relating to fulfilling his obligations pertaining to the agreement and this security fails to materialise or is insufficient. As soon as security is provided, authorisation to suspend is no longer valid unless there is an unreasonable delay in this fulfilment;
- there is a case of liquidation, (application for) bankruptcy, acceptance of the buyer in a statutory debt rescheduling arrangement in compliance with the Debt Rescheduling (Natural Persons) Act, guardianship order of the buyer, death of the buyer, transfer or termination of the buyer’s business, attachment or (provisional) moratorium on payment of buyer.
14.2 GMS is also authorised to dissolve the agreement if circumstances arise of such a nature that fulfilment of the agreement becomes impossible or can no longer be demanded according to the standards of reasonableness and fairness or if any other circumstances arise which are of such a nature that it would be impossible to expect the agreement to be upheld unchanged.
14.3 If the agreement is dissolved, the claims of GMS against the buyer become payable forthwith. If GMS suspends fulfilment of the obligations, it reserves its claims pertaining to the law and the agreement. GMS still reserves the right to claim damages.
Article 15 Cancellation
15.1 If, after an agreement has been entered into with GMS and before GMS has delivered to the buyer, the buyer wishes to cancel the order, 10% of the agreed order price including VAT will
be charged to the buyer as cancellation costs, without prejudice to the right to full compensation, including lost profits. Goods purchased specially for the buyer cannot be cancelled.
15.2 Cancellation must be made in writing.
15.3 If the buyer has already paid the order price to GMS, the order price minus 10% and freight costs will be repaid to the buyer on cancellation.
Article 16 Guarantee
16.1 The goods delivered by GMS comply with the requirements and specifications imposed by Dutch legislation.
16.2 This guarantee is restricted to:
- production defects, and does not include damage resulting from wear and tear, improper or unskilled use or faulty processing, treatment, maintenance and storage; - deliveries to buyers within the EU; - the guarantee issued by the manufacturer;
- replacement or repair of the product;
- 1 year after delivery unless otherwise agreed.
16.3 This guarantee is no longer valid:
- for processing, modifications or changes made by the buyer or a third party to the delivered goods;
- for use for a different purpose than intended;
- in the event of failure to have any required annual service;
- if the buyer has not adhered to any instructions provided by GMS relating to the delivered goods.
16.4 Discounted goods are not covered by the guarantee.
16.5 As long as the buyer does not fulfil the obligations arising from the agreements entered into by the parties, he cannot invoke this guarantee.
Article 17 Liability
17.1 In the event that GMS is liable, this liability is limited to the provisions of this article.
17.2 The buyer should conduct his own research into whether the purchased product is suitable for the purpose for which it will be used. If it later appears that the purchased item is not suited to purpose, the buyer may not hold GMS liable for any resulting damage.
17.3 If GMS is liable for direct damage, then that liability is restricted to a maximum of the amount payable by the insurer of GMS, at least to a maximum of the invoice amount, at least that part of the invoice to which the liability relates.
17.4 Direct damage is meant to mean:
- the reasonable costs to establish the cause and extent of the damage, insofar as this relates to damage in the sense of these terms and conditions;
- any reasonable costs incurred to enable GMS to rectify its performance in compliance with the agreement, unless these cannot be attributed to GMS;
- the reasonable costs incurred to prevent or limit damage, insofar as the buyer can provide evidence that these costs resulted in a limitation of direct damage as intended in these general terms and conditions.
17.5 GMS is never liable for:
- indirect damage, including subsequent damage, lost turnover and profit, lost savings and damage through business stagnation;
- the damage resulting from rejected substances on or in the product, due to a change in environmental legislation after entering the agreement;
- damage to the product resulting from improper storage, processing, use or maintenance by the buyer or a third party;
- damage resulting from overloading, faulty, improper or unprofessional use of the product by the buyer or a third party or through failure to comply with user instructions or a use other than the purpose for which it is intended;
- damage resulting from advice given by GMS
17.6 Buyer indemnifies GMS against any claims from third parties, which have suffered damage related to the execution of the agreement and which damage is attributable to the buyer.
17.7 To prevent incorrect and/or careless use of the delivered products, the buyer must provide the (end) users to whom it gives the products under whatever title with user advice and manuals which correspond with the product and user information issued by GMS on delivery of the products. Furthermore, the buyer must ensure that the (end) users use the delivered products in accordance with the above-mentioned guidelines and in a careful and safe manner.
17.8 If and insofar as GMS is required to reimburse the damage, pursuant to product liability as referred to in the law, originating or caused by a faulty product manufactured by GMS or imported in the EU, this liability will be reduced or removed if the damage is caused through either a fault in the product and through the fault of the buyer or a (legal) person for whom the buyer is liable.
17.9 Insofar as the claim made against GMS for compensation pertaining to product damage is subject to the right of an EU member state which has invoked the limitation option of Article - 16 (1) EEC Directive of 25.07.1985 (PbEG no. L 210), if a contract party responds with regard to the liability, GMS excludes all liability or obligation to compensate product damage, which exceeds the limit concerned.
Article 18 Term of forfeiture
18.1 All claims of the buyer pursuant to an agreement with GMS expire a year after the juristic act, which resulted in those claims, took place.
Article 19 Risk transfer/transport
19.1 The risk of loss or damage of the goods which are subject of the agreement is transferred to the buyer once these goods are legally and/or actually delivered to the buyer and are thus transferred to the power of the buyer or a third party designated by the buyer.
19.2 If GMS is responsible for the transport/shipment of the goods which are subject of the agreement, this will be entirely at the expense and risk of the buyer, unless otherwise agreed by the parties. GMS determines the mode of transport.
19.3 Any specific wishes of the buyer regarding the transport/shipment are only executed if the buyer declares that he will pay the additional costs.
19.4 If GMS is responsible for international transport by road, the ‘International Carriage of Goods by Road (CMR) applies.
Article 20 Force Majeure
20.1 Parties are not obliged to fulfil any commitment if they are hindered as a result of a circumstance which cannot be attributed to gross negligence or intention on the part of the party concerned, nor in accordance with the law, a juristic act or generally accepted practice be liable for costs.
20.2 In these general terms and conditions, besides that which is understood in the law and jurisprudence, force majeure refers to all external causes, foreseen or unforeseen, over which GMS cannot exercise any control and which make it impossible for GMS to fulfil its obligations either totally or partially or in a timely manner. This includes strike action within GMS, transport disruptions, traffic congestion, tailbacks, vehicle breakdown, theft, fire, import or export obstructions, power failures and computer faults and stagnation in the deliveries by suppliers.
20.3 GMS also has the right to invoke force majeure if the circumstance which hinders (further) fulfilment occurs after GMS should have fulfilled its obligation.
20.4 During the period of force majeure, the parties may suspend the obligations arising from the agreement. If this period lasts longer than two months, either of the parties is entitled to dissolve the agreement, with no obligation to compensate the other party.
20.5 If at the time of the commencement of the force majeure, GMS has partially fulfilled or will be able to fulfil them its obligations arising from the agreement, and an independent value can be attributed to the part that has been fulfilled and the part yet to be fulfilled respectively, GMS is entitled to invoice the part that has been fulfilled and the part yet to be fulfilled separately. The buyer must pay this invoice as if it were a separate agreement.
Article 21 Copyrights and intellectual property
21.1 Without prejudice to the provisions in these general terms and conditions, GMS reserves the rights and authorisations attributed to GMS on the grounds of intellectual property and the Copyright Act.
21.2 All brochures, catalogues, price lists, documents and other materials or (electronic) files issued by GMS remain the property of GMS, regardless of whether these have been given to the buyer or to third parties, unless otherwise agreed. These are exclusively intended to be
used by the buyer and may not be reproduced, published or made available to third parties without prior consent from GMS, unless this occurs by the nature of the documents issued.
21.3 All rights of industrial or intellectual nature relating to working methods, advice, etc. originating from or used by GMS etc. are the property of GMS, regardless of the contribution to their creation of the buyer himself or by third parties used in executing the assignment.
21.4 All products and goods used in the execution of the agreement are considered to have been produced totally and exclusively according to the insights of GMS. GMS is the party entitled to any copyright or other right of intellectual property relating to products and goods manufactured in the context of the execution of the agreement and all end products referred to in the agreement.
21.5 In the event of any violation of this article, the buyer will forfeit an immediately payable fine to GMS which is not open to judicial moderation of € 1,000,00 per day that the violation persists, without a notice of default being required and without prejudice to the entitlement of GMS to compensation by the buyer of all damage suffered by GMS as a consequence.
Article 22. Secrecy
22.1 Buyer is under an obligation of secrecy to keep confidential any information acquired in the framework of the agreement from GMS or any other source. All information is regarded as confidential, unless GMS informs the buyer in writing that the information concerned is not confidential.
22.2 In the event of a violation of the provisions of paragraph 1 of this article, the buyer will forfeit an immediately payable fine to GMS which is not open to judicial moderation of € 100,000,00, without prejudice to the entitlement of GMS to compensation for the damage suffered.
Article 23 Authentic version
23.1 The Dutch version of these terms and conditions is the only authentic version. If a translation deviates in any way, the Dutch text prevails.
Article 24 Disputes & Applicable Law
24.1 All disputes between the parties relating to the agreement entered into between GMS and buyer, even if only one of the parties feels that there is a dispute, will be submitted to the competent court in the place of business of GMS, which court has exclusive jurisdiction above all other organisations to hear disputes between the parties. Nevertheless, GMS has the right to submit the dispute to the court which has jurisdiction according to the law or convention.
24.2 Any agreement between GMS and the buyer is governed by Dutch law. The Vienna Sales Convention is expressly excluded.
Article 25 Location terms and conditions
25.1 These terms and conditions were filed at the office of the Chamber of Commerce and Factories for Northwest Holland on 4 December 2012 under number 37053531and can also be consulted on the websites of GMS.
Article 26 Applicability
26.1 These special provisions apply if the specific situations described herein occur and constitute an addition to the general provisions referred to above.
Article 27 Transport and service
27.1 If GMS arranges transport/shipment, storage of the goods which are subject to the agreement, this is completely at the expense and risk of the buyer, unless agreed otherwise by the parties in writing.
27.2 The prices of the logistic services do not include:
- customs/clearance costs; - VAT.; - levies; - import levies; - advance commission; - ferry costs; - costs related to preparing customs or other documents;
- diesel oil surcharge; - currency surcharges; - surcharges for extra loading and unloading addresses;
- storage costs.
These costs, if incurred, are charged to the buyer separately, unless agreed otherwise by the parties.
27.3 The calculated prices assume easy access for delivery. If, during the execution of the assignment, access proves problematic, GMS has the right to add the extra costs incurred to the prices.
27.4 Unless expressly agreed otherwise in writing, all assignments will be executed in a sequence to be determined by GMS, whereby the capacity of the transport at the disposal of GMS and the available manpower also determine the time of starting and completing assignments. GMS is free in the manner of executing the assignments, unless explicitly agreed otherwise.
27.5 In order to comply with customs and other formalities which must be completed for the delivery of goods, the buyer is obliged to add the necessary documents to the consignment note and to make these available to GMS and provide all the essential information.
27.6 GMS, at least the transport company commissioned by GMS, will make every attempt to park overnight at a location used by several trucks and where a refuelling station is located. The
duty of care of GMS goes no further, not even if third parties have agreed otherwise or if international insurers expressly demand a broader duty of care.
27.7 GMS is entitled to withhold goods, money and documents, the latter in the widest sense of the word, with respect to anyone requiring their surrender, at the expense and risk of the buyer until all payable debts have been paid to GMS.
27.8 All goods, documents and money which GMS has acquired or will acquire for whatever reason and for whichever purpose, will be used by GMS as a possessory pledge for all claims payable to GMS by the buyer now or in the future.
27.9 In the event of non-payment of the claim, the possessory pledge will be sold as stipulated by the Law, or if agreement is reached, by private treaty.
27.10 GMS can, if requested, have the possessory pledge replaced by a security of the equivalent or higher value, exclusively to be judged by GMS.
27.11 The buyer may never invoke a deferment of payment, whether or not expressly granted by GMS, granted with respect to previous orders.
Article 28 Export
28.1 Unless otherwise agreed in writing, payment for export transactions should be made by means of an irrevocable letter of credit issued and confirmed by a Dutch bank. Based on this letter of credit, both forwarding and partial shipments may be arranged. The letter of credit can be transferred by GMS.
28.2 The buyer guarantees that if an import certificate or permit is required for the import of goods in the country of destination, this import certificate or import permit for shipment has been or will be acquired. In the event that such a certificate or permit is not acquired, the buyer will be liable for the resulting damages.
28.3 In order to comply with customs and other formalities to be completed for the delivery of goods, the buyer is obliged to provide GSM with the necessary documents and all the relevant information.
28.4 If goods to be delivered in the Netherlands are destined for use outside the Netherlands, GMS bears no responsibility if these do not comply with the technical requirements, standards and/or statutory provisions or provisions of the country where they will be used. This does not apply if, when entering into the agreement, referral is made of the use abroad and all the necessary details and specifications of that country are made available and if GMS has indicated that it can fulfil these requirements.
Article 29 Products
29.1 The buyer will not modify the products or their packaging or labelling without prior written consent from GMS.
29.2 GMS has the right to change the products and the specifications according to its own insight. This right includes the right to market new versions of the product and to remove certain products or parts from the series of products.
29.3 GMS will inform the buyer in writing about any planned change in the products, insofar as this is relevant to the buyer, as apparent among others from purchases by the buyer in the previous six months, and about any removal of products or parts thereof from the series of products. GMS will issue the notification referred to above at least 30 days before the product is amended or removed. The buyer is not entitled to any compensation whatsoever, also with regard to a change or cessation of products or parts as referred to in article 29.2
29.4 When providing information about the products to its (potential) clients, the buyer will use the product information provided to the buyer by GMS. GMS will ensure that it does not issue incorrect or misleading information about the products to third parties.
29.5 The buyer will investigate whether the products and the product information comply with all the requirements of the applicable law and regulations within the Contract area and will inform GMS forthwith if any product or product information fails to comply therewith. If the buyer fails to provide GMS with the information referred to previously or if he provides incorrect information, the buyer will indemnify GMS from all claims from third parties (including government bodies) affected by the failure of the products to comply with local legislation and regulations and from all damages and costs suffered or incurred in connection with such a claim.
29.6 The buyer will inform GMS forthwith of any complaints relating to the products which the buyer will receive.
Article 30 Use of Brands
30.1 Under the terms and conditions described in this article, the buyer has the right to use the brands in the promotion and distribution of the products in the Contract area.
30.2 The buyer will not modify, remove or change the brands, numbers or other identification symbols used on or in connection with the products. The buyer will not use brands in a manner that could in any way damage their distinguishing ability, reputation, validity or the goodwill of GMS herein, or for the company or trade name of GMS. The buyer will not use or register any brand or trade name which resembles any brand or trade name of GMS that might give rise to confusion (including indirect confusion) or be misleading. Nor will the buyer use any other brand than these brands in connection with the products without prior written consent from GMS.
30.3 The buyer will strictly adhere to the guidelines and instructions for the manner in which the brands are used which GMS will provide the buyer from time to time.
30.4 At the expense of GMS, the buyer will provide all reasonable cooperation required by GMS with regard to promoting the brands in the Contract area.
30.5 Except in the case of the right to use as referred to paragraph 1, the buyer will have no right whatsoever with regard to any brand, or any related goodwill. These are vested and will remain vested in GMS. All the goodwill resulting from the buyer’s use of the brands will be attributed to GMS.
30.6 The buyer will inform GMS forthwith of any infringement or threatened infringement of the brands by a third party of which the buyer becomes aware, as well as of any allegation or claim by a third party stating that the sale or import in the Contract area of the products violates any right of any third party.
“The enclosed terms and conditions apply from (date of filing) to all our deliveries and agreements with you, unless agreed otherwise in writing by the parties involved. Please study these terms and conditions carefully. If you have any questions or comments about these terms and conditions, please let us know in writing within 30 days of the present date. If this is not forthcoming, we assume that you agree with the content of these terms and conditions.”