1.1.    Unless explicitly agreed otherwise in writing, the offering, sale and delivery of all goods (each a “Product”) by Brunswick Marine in EMEA, LLC., or its applicable affiliate (the “Company”) and a purchaser (the “Purchaser”) shall be governed by the present general terms and conditions of sale and apply to all transactions between the Company and Purchaser, whether or not explicitly identified on any particular Order or Invoice. 

To the extent that there is any unambiguous conflict of terms between an Agreement or Invoice and these Standard Terms and Conditions of Sale, such Agreement or Invoice shall control solely with respect to the Products identified on such Invoice and only to the extent of such unambiguous conflict of terms.

1.2.    Other conditions or stipulations mentioned on forms or documents issued by the Purchaser (including but not limited to their general terms and conditions), are not applicable unless expressly agreed in writing by the Company. In the event that explicit preference is given in writing to the terms and conditions of the Purchaser or to any special agreement whatsoever, the following terms and conditions shall remain valid in a supplementary way.

1.3.    By entering into any and all agreement with the Company, the Purchaser declares to have received a copy of these Standard Terms and Conditions of Sale and accepts these Standard Terms and Conditions of Sale.

1.4.    These Standard Terms and Conditions of Sale apply to the entire contractual relationship between the parties, including individual purchase orders or contracts for specific Products. Deviations, additions or modifications of these Standard Terms and Conditions of Sale shall not be effective unless expressly agreed in writing between the parties.

1.5.    The Purchaser declares that they know and understand the meaning of all technical terms used in these Standard Terms and Conditions of Sale, as well as any possible additions to them and those used in the offer and/or order confirmation.

1.6.    The Company retains the right to amend these Standard Terms and Conditions of Sale in its sole discretion at any time upon notice to the Purchaser. Such changes shall be applicable as of the thirtieth (30th) day following notice to the Purchaser.

1.7.    An amendment or waiver of any of these Standard Terms and Conditions with respect to the sale of any Products must be explicitly included on the applicable Invoice for such Products or in a writing signed by both the Company and the Purchaser. The failure or delay by either the Company or the Purchaser to enforce any term of these Standard Terms and Conditions of Sale will not constitute a waiver thereof. No waiver of any term will be deemed a continuous or future waiver of such term or any other term.

2.1.    Purchaser does not have the right to bind the Company in relation to third parties or to enter into any agreement in the name of or for the account of the Company, except where the Company has expressly requested and authorised Purchaser to do so in writing

3.1.    The Purchaser must submit orders in writing to the Company in a manner and format prescribed by the Company for the Purchaser from time to time (each, an “Order”). The Purchaser shall submit Orders at least three (3) months prior to the desired shipping date

3.2.    Any mentioned delivery times on an Order confirmation and/or acknowledgement and/or receipt are an indication, not a guarantee nor confirmation of a binding delivery time. Longer delivery times than the delivery times indicated an Order confirmation and/or acknowledgement and/or receipt, will not entitle the Customer to compensation.

3.3.    All Orders are subject to these Standard Terms and Conditions of Sale, and any additional or different terms submitted by the Purchaser with any Order will be deemed rejected and will also be void and of no effect.

3.4.    Any Order receipt and/or acknowledgement does not yet constitute a contract of sale. All Orders submitted by the Purchaser are subject to availability and acceptance by the Company, and the Company may reject any Order for any reason in its sole discretion. The Company agrees to make reasonable efforts to preliminarily accept or reject and to fill all orders promptly. No unshipped Order shall be deemed accepted by the mere failure of the Company to reject it in writing or the Company’s delivery of any order confirmation. The Company’s full or partial acceptance of an Order will be indicated solely by its issuance a definitive invoice (each, an “Invoice”) relating to the Products listed on an Order.

3.5.    Failure to fill all or any part of an order shall not render the Company liable for any loss or damages to the Purchaser.

3.6.    The Purchaser’s cancellation of orders will be subject to the Company’s current cancellation policy, including any payment required thereunder.

3.7.    The weights, measurements, capacities and other details that are included in catalogues, advertisements, depictions, and price lists are only meant to be approximations. These details only bind the Company in so far as this is explicitly stated.

3.8.    The Company retains the right to suspend the execution of an order if the Purchaser’s account at the Company shows that the Purchaser is in default of any payment obligation to the Company or its subsidiaries or if the Purchaser demonstrates to be insolvent. In the event of a refusal to take possession of an order or if there is a delay in the delivery as a result of a suspension of an order for which the Purchaser is directly or indirectly responsible, storage costs will be charged to the Purchaser, without prejudicing the Company’s right to cancel the agreement.

4.1.    Unless agreed otherwise in writing by both parties, the Products will be invoiced at the price as applicable on the moment of delivery of the Products, not the moment of order.

Prices are always subject to possible increases if this is a result of the evolution of their fixed and/or variable costs (e.g.: wages and other social security contributions, costs of material, processing costs, energy costs, ex-change rates, etc.). The Company shall have the right to set and revise pricing for the Products, at any time in its sole discretion, with such prices becoming effective immediately upon notification by the Company.

5.1.    Unless otherwise agreed in writing or stated in an Invoice with respect to a certain shipment of Products or in these Standard Terms and Conditions of Sale, Products will be shipped FCA (place of delivery) (Incoterms 2020) (including the risk of loss allocation thereunder). If the delivery term, the place of delivery, or the circumstances of the delivery change at the request of the Purchaser, or if the Purchaser has provided incorrect information to this end, the Company is entitled to payment of the additional costs incurred.

5.2.    Notwithstanding anything to the contrary in Section 5.A, and except when otherwise explicitly specified on the Company’s price list or on the applicable Invoice, the Purchaser shall cause to be paid or shall make reimbursement to the Company in full for any and all (i) taxes, duties, customs, tariffs, VAT, or other charges imposed by any governmental authority upon any purchase or sale of Products and (ii) all shipping, transportation, insurance, handling, storage and delivery charges from the factory (even when provided or arranged by Company).

5.3.    Each of the Company and the Purchaser shall assist the other party in the processing and collection of any claims against a carrier of the Products.

5.4.    Shipments will be subject to the Company’s production schedule and availability of materials or transportation equipment. The Company may allocate Products in short supply to its customers in its sole discretion.

5.5.    The Company may refuse shipment if the Purchaser (including any of its owners, shareholders, officers or managers) or any of the Purchaser’s customers appear on any applicable United States Restricted Party or Denied Party List or such shipment would otherwise violate applicable law.

5.6.    The Company may refuse shipment for any credit reason, including the Purchaser’s failure to pay for any prior shipment, including failure to timely pay any financial institution involved in the financing of the Purchaser’s purchases.

6.1.    All claims for shortage, defects (whether apparent or hidden) or damages or unacceptable Product shall be made within ten (10) days of the Purchaser’s receipt of the Products or parts or will be deemed waived. 

6.2.    If the Purchaser fails to promptly accept delivery of any Products ordered, the Purchaser shall reimburse the Company for any costs incurred, including the return of such Products to the Company and a twenty percent (20%) restocking fee.

6.3.    All returns will be subject to the Company’s current return policy.

7.1.    Unless the Company, in its sole discretion, agrees to extend credit to the Purchaser in writing, all Product sales must be paid for in full in advance by the Purchaser. The Company is under no obligation to extend credit to the Purchaser, and if the Company does, it may change credit terms upon notice. All terms of credit, including the due date for each Invoice, any cash price discount, and the Purchaser’s specific credit limit, will be as specified from time to time by the Company.

7.2.    All purchases will be subject to the Company’s then current credit approval and review process.

7.3.    The Company’s invoices are payable to the Company’s designated bank account at the latest on the due date indicated on the respective order or in the relevant invoices. The invoice has been settled when the complete amount stated on the invoice has been received on the Company’s designated bank account as indicated on the front of the invoice.

7.4.    All invoices from the Company are to be paid in the indicated currency. When the payment is done in a different currency, the conversion will be calculated with regards to the highest rate, either at the rate of the invoice date or the date of payment. All bank and exchange costs connected to the collection of the amount will be charged to the Purchaser. Representatives are not authorized to receive payments.

7.5.    Invoices that are not disputed by registered letter within eight days after their issuing will be considered to have been fully accepted.

7.6.    If the Purchaser fails to pay in full any invoice by the due date, or fails to pay in full any other payment due to the Company under any agreement between parties and/or these Standard Terms and Conditions of Sale by the due date for payment, then:

      (i)        the Purchaser shall pay interest on the overdue amount at the rate of 10% per annum (except that if the legal rate of interest is higher, it shall be applied). Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Purchaser shall pay the interest together with the overdue amount; and

      (ii)       the Purchaser shall pay the Company 10% of the outstanding balance, with a minimum amount of 250,00 EUR for costs associated with a.o. the collection of the amounts due and with the adverse consequence on the Company’s cash flow, as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of the Company’s loss. This paragraph is without prejudice to the Company’s right to prove and claim any higher damages.

7.7.    Late, incomplete or non-payment of one expired invoice will cause all other invoices, for which a particular instalment term has been agreed on, to become immediately payable, without previous notice of default. Interest for late payment is due as from the moment that the non-expired invoices become payable. Liquidated damages may in addition be due in accordance with section 7 F. Partial payments will firstly be deducted from interest due, liquidated damages payments and possible costs and only then from unpaid invoices.

7.8.    Any use of promissory notes, cheques or permission to draw a bill to cover the agreed upon price shall never be regarded as a renewal of the debt of the original invoice, nor will it limit or alter any ‘right of retention’, agreement or territorial jurisdiction

7.9.    The Company is entitled to suspend or postpone its obligations in connection with other current agreements between the parties to the extent that the Purchaser has not complied with a payment condition or other obligation. The Company reserves the right to suspend delivery of any Products until the Purchaser’s credit is back within the agreed limits or until the Purchaser complies with such payment condition or other obligation. Delays in payment by the Purchaser of (certain advances on) the price may give rise to a proportionate delay in the delivery term.

7.10.    In the event of late payment, the Company is entitled to demand the dissolution of the agreement, to proceed to extrajudicial dissolution (without prior notice of default being required), or according to the Company’s choice to request the enforced implementation of the agreement, all without prejudice to the Company’s right to compensation by (early) termination of the agreement. This damage will be fixed at a lump sum of 75% of the remaining amount without prejudice to the Company’s right to prove and claim higher compensation.

7.11.    The Purchaser will reimburse the Company for all reasonable costs and expenses in collecting past due accounts, including attorney fees and court costs.

7.12.    The Company may setoff amounts owed to the Purchaser against any amounts due to the Company. The Purchaser cannot set off any of its claims against any debt towards the Company.

8.1.    To the extent allowed by law, the Company shall retain title in and to the Products until the price (and any interest accrued thereon) of such Products has been paid in full to the Company or its designee by or for the Purchaser. Notwithstanding the foregoing, the Purchaser is authorized to sell and deliver the Products in the ordinary course of business and thereby to pass product title thereto. This retention of title shall be for the sole purpose of securing payment of the Products, and the Purchaser shall execute such security agreements and other documents that the Company may reasonably request to perfect such security interest in the Products and any proceeds thereof.

8.2.    While any Products are in the Purchaser’s possession prior to the passage of title, the Purchaser will hold such Products in trust for the Company and keep the Products insured on the Company’s behalf for their full replacement value against all risks to the reasonable satisfaction of the Company (on request the Purchaser shall produce the policy of insurance to the Company).

8.3.    To the extent title to any Product passes to the Purchaser prior to payment in full for such Product, the Purchaser hereby grants to the Company and the Company hereby retains a security interest in all Products, including the equivalent as designated by any statute under the laws of the Purchaser’s local jurisdiction, sold to the Purchaser and all proceeds arising out of the sale of the Products until Purchaser pays for such Product in full. The Purchaser agrees to sign, file, authenticate, and authorize the signing, filing and authenticating by the Company of such financing statements and other documents and do such other acts, as the Company may request to establish and maintain a valid and protected security interest in the Products and proceeds.

8.5.    The Purchaser shall ensure that, until such time as the Purchaser has made payment in full for the Products, the Products and any proceeds related to the sale thereof can be identified and separated easily from other products or proceeds held by the Purchaser by storing them separately and by labelling them and keeping stock records either in writing or in an electronic format. The Purchaser will ensure that the Products are stored at the premises in such a way that an inventory of the Products may always be undertaken at the request of the Company.

8.6.    If overdue sums are owed to the Company with respect to any Products, (i) the Purchaser shall not be entitled to resell or part with possession of any Products still owned by the Company until the Purchaser has paid in full all sums owed by it to the Company and (ii) the Purchaser shall allow the Company and its agents, without prejudice to any other remedies and with or without prior notice, except to the extent advance notice is required by applicable law, to take possession of such Products or any of them and to enter for that purpose upon any premises occupied by or under control of the Purchaser in which such Products may be. The Purchaser shall be liable to and reimburse the Company for any and all losses or deficiencies on the sale or disposition of any Product purchased by the Purchaser which is repossessed or repurchased by the Company for any reason whatsoever. The Company may charge a twenty percent (20%) restocking fee in connection with all repossessions or repurchases. The Purchaser shall also be liable for any and all discounts, volume rebates, or other sales incentives paid to the Purchaser on Product repurchased, and all attorney's fees, court costs, and expenses (including transportation or other costs in picking up or moving the Product) incurred in connection with such repossession or repurchase.

9.1.    The Products sold are warranted as set forth in the Company’s limited warranty policy for each Product in effect at the time of sale.

9.2.    The Purchaser shall not commit the Company or any of its affiliates in any manner exceeding the Company’s applicable limited warranty as set forth in the Company’s limited warranty policy. In the event the Purchaser offers, or if any law applicable to the Purchaser requires, a warranty in excess of the Company’s limited warranty, the Purchaser shall assume sole responsibility for such excess warranty.

9.3.    The Purchaser shall supply each of its customers with a copy of the Company’s written limited warranty, including all disclaimers and limitations thereto, relating to each Product sold to such customer and the appropriate operations and maintenance manual provided by the Company.

9.4.    Subject to the terms of the applicable limited warranty, no warranty applies to any Product sold as “used,” which includes personal or substantial demonstration use by the Purchaser or Purchaser’s affiliates, unless the Company expressly authorizes such warranty in writing. No Product warranty shall apply if the Product is altered without the express written authorization of the Company.

9.5.    The sole obligation of the Company, and the exclusive remedy of the Purchaser and any of its distributors, dealers, or customers for breach of any warranty, shall be as stated in the applicable limited warranty. The foregoing constitutes the exclusive remedies, expressly in lieu of all others, whether available at law or in equity, for any breach of warranty.

9.6.    If a Product is used for lease, rental, governmental or commercial purposes, the terms of Company’s limited warranty policy relating to commercial or governmental use, as applicable, will apply.

9.7.    EXCEPT AS SPECIFICALLY PROVIDED IN THE COMPANY’S PUBLISHED APPLICABLE LIMITED WARRANTY, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE PURCHASER OR ANY THIRD PARTY FOR, NOR SHALL THE MEASURE OF DAMAGES INCLUDE, ANY AMOUNTS FOR LOST PROFITS, LOST SALES, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON OR UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT OR ANY OTHER LEGAL THEORY.

10.1.    The Purchaser understands that the Company does not provide a warranty or product protection coverage for modified or altered Products, including, but not limited to, performance enhancement modifications. The Purchaser agrees it will notify Company in writing any time the Purchaser modifies or alters a Product for sale in any manner. When seeking authorization to perform warranty or product protection work, the Purchaser shall notify the Company in writing if it appears that the Product on which the warranty or product protection work is being performed has been modified, altered, or otherwise differs from the stock Product in any way.

11.1.    The Company shall have the right, at any time and in its sole discretion, to discontinue the sale of any or all Products, to modify the design, specifications and components of any Product, to replace previous versions of a Product with a newer version, or to change, reduce or expand the list, range, portfolio or branding of a Product; provided, however, that the Company shall notify the Purchaser, prior to shipment, of any major changes with respect to the Products previously ordered by the Purchaser but not yet delivered, in which event the Purchaser shall have the right to terminate its order within five (5) days after such notification by providing written notice to the Company. The failure by the Purchaser to provide such timely written notification shall be deemed acceptance by the Purchaser of such changes. The Company shall not be liable to the Purchaser for any loss, damage, compensation or reimbursement arising out of changes in any Product’s design or the withdrawal of any Product.

12.1.    The Purchaser acknowledges that the Company and/or its affiliated companies are the exclusive owners of various trademarks, service marks, trade designations, logos, trade dress, URLs, websites, domain names, patents and copyrights including without limitation the names, associated logos, URLs, websites and domain names (collectively, “Identification”) which the Company and/or its affiliated companies use in connection with the Products and their business.  Unless specifically otherwise agreed in writing, the OEM is not authorized to use Identification. 

12.2.    The Purchaser shall not use the names “Kiekhaefer”, “Mercury”, “Mercury Marine”, “Merc”, “Mercury MerCruiser”, “Quicksilver”, “Mariner”, “Marine Power”, “Brunswick” or any combination of such names or any names used by the Company or the Company’s corporate affiliates, as the whole or part of the title of the Purchaser’s, business. The Purchaser shall not register or assist any other party to register any domain name that contains or closely resembles any Identification without first obtaining the prior written consent of Company.

12.3.    The Purchaser shall not alter, remove or tamper with the brands, trademarks, or other Identification on the Products. If the Purchaser so requests the packaging of the Products delivered under this Agreement shall contain any specific references required by local laws. The costs incurred by the Company in attaching such references shall be paid by Purchaser.

12.4.    The Purchaser shall notify the Company upon its receipt of any information indicating a conflicting application for any patent, utility model, design, trademark or copyright.

13.1.    The Purchaser undertakes to keep confidential and not to divulge to any third party any confidential information , reports, records or other restricted documents concerning the Company or its activity which they have received or obtained. The Purchaser shall ensure that its directors, employees, agents and other intermediaries are bound by a similar duty of confidentiality. Reproductions or use of this information for unlawful or unallowed purposes is punished by law and will be prosecuted.

13.2.    If so requested by the Company for any given reason, the Purchaser shall immediately return to the Company any documents containing restricted information about the Products, the market, sales of the Products, the Company, or its business, etc. provided by the Company.

14.1.    The Company and the Purchaser undertake to comply with their respective obligations under any and all applicable data protection laws and regulations, including without limitation, as applicable, the General Data Protection Regulation (GDPR) (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as well as national legislations implementing the Directive into EU Member States’ national laws (collectively, the “Data Protection Laws”).

14.2.    For the purposes of fulfilling the terms of the agreement(s) between parties, the Company together with Brunswick, as joint data controllers, shall collect and/or receive from the Purchaser personal data. The Purchaser hereby authorizes the Company to store, use and process all personal data collected in fulfilling the terms of this Agreement anywhere the Company does business, i.e. in and out of the European Economic Area (the “EEA”), including in countries that do not have the same level of protection of personal data as in the Purchaser’s country. Such personal data may include names, phone numbers, and e-mail/postal addresses of the Purchaser’s officers, directors, owners, employees, contractors, customers and consumers (“Personal Data”).

14.3.    As a global company, the Company may transfer Personal Data to other Brunswick entities and to U.S. third party processors and assignees acting on Brunswick’s behalf and under Brunswick’s instructions, for uses consistent with this Agreement. The Company shall take appropriate measures to cover the transfer of Personal Data in and out of the EEA in conformity with applicable Data Protection Laws. In addition, the Company requires that any of its third party processors established out of the EEA in a country not adducing an adequate level of data protection, that they enter into appropriate data transfer agreements conforming to the EU Commission Standard Contractual Clauses, when processing personal data on behalf of Company. The Company’s Privacy Policy is available upon request. 

14.4.    The Purchaser acknowledges that it has duly informed and obtained proper consent from (i) its officers, directors, owners, and employees, and from (ii) its contractors, customers and consumers and their officers, directors, employees, in accordance with applicable Data Protection Laws, with respect to the disclosure to, and further processing by, the Company of their Personal Data for the above-mentioned purposes, including their transfer in and out of the EEA, before providing any Personal Data to Company.

15.1.    No liability shall be sustained by the Company or the Purchaser, or any of their affiliates, by reason of its failure or delay in filling any order due to fire, labor disputes, natural disasters, epidemics, accidents to machinery, acts of God, acts of or threatened acts of war or terrorism, material, energy, transportation or labor shortages, regulations, or any other circumstance, whether similar or dissimilar to the foregoing, beyond its reasonable control.  

16.1.    Any failure or delay by the Company in exercising any right under an agreement and/or these Standard Terms and Conditions of Sale with the Purchaser, any single or partial exercise of any right under such agreement and/or these Standard Terms and Conditions of Sale or any partial reaction or absence of reaction by the Company in the event of violation by the Purchaser of one or more provisions of such an agreement and/or these Standard Terms and Conditions of Sale, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of the Company’ rights under such agreement these Standard Terms and Conditions of Sale or under the said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by the Company, this waiver cannot be invoked by the Purchaser in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.

17.1.    If any part or any clause of these Standard Terms and Conditions of Sale is for whatever reason held to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the Standard Terms and Conditions of Sale.

Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes clo­sest to the intention of Parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.

18.1.    Any written notice given pursuant to this Agreement shall be either hand delivered (by courier or otherwise) or mailed by Registered Mail, postage prepaid, with return receipt requested, to the Company at the address listed on the first page of this Agreement, and to the Purchaser at the address listed on the first page of this Agreement. Such notice shall be deemed to be given upon first receipt. A change of address may be given by such notice.

18.2.    The Purchaser hereby grants permission and consent to the Company, and to those entities that are authorized by the Company, to send or transmit communications (including but not limited to faxes, wireless communications, and e-mails) to the Purchaser and the Purchaser’s officers, directors, employees, subsidiaries and affiliates, and their permitted successors and assigns. Such communications are not limited in content and may include advertisements, and the Purchaser understands that by providing such consent it may incur costs that are related to the receipt of such communications. The Purchaser further agrees that such communications may be sent to any telephone number or electronic media address provided by the Purchaser.

19.1.    In case of any dispute relating to the rights and duties imposed by this Agreement, both Parties will openly discuss and make reasonable efforts at an amicable resolution. If litigation is instituted and the Purchaser prevails in an amount which exceeds the Purchaser’s most recent written demand prior to decision, then the Purchaser shall be reimbursed its reasonable legal fees and court costs by the Company; otherwise, the Company shall be reimbursed its reasonable legal fees and court costs by the Purchaser. Except as expressly described to the contrary in this Agreement, the rights and remedies of each Party are not exclusive. 

20.1.    The present Standard Terms and Conditions of Sale as well as any agreement between parties, of whatever nature, are governed by and construed in accordance with the laws of Belgium, with exclusion of (1) all conflict of laws rules, (2) the UN Convention on the International Sale of Goods (1980), and (3) the NY Convention on the Limitation Period in the International Sale of Goods (1974).

21.1.    Any action, claim, suit or proceeding between the Parties, whether based on state, statutory, common or any other law, including but not limited to, any and all disputes relating to, arising out of or in connection with the interpretation, performance or the non-performance of this Agreement and any and all disputes arising out of or in connection with transactions in any way related to this Agreement (including the termination of this Agreement) shall be litigated solely and exclusively before the courts of the country in which the Purchaser is located. The Parties consent to the in personam jurisdiction of said court for the purposes of any such litigation and waive, fully and completely, any right to dismiss and/or transfer any action due to venue.