GENERAL CONDITIONS OF SALE AND DELIVERY
7041 GE ‘s-Heerenberg
hereinafter called: the user
ARTICLE 1 DEFINITIONS
- Save where expressly indicated otherwise, in these general conditions the following terms shall be used with the following meanings:
User: the user of the general conditions;
Purchaser: the other contracting party to the user, acting in the exercise of a profession or business;
Agreement: the agreement made between the user and the purchaser.
ARTICLE 2 GENERAL
- The provisions of these general conditions shall apply to every offer and every agreement made between the user and a purchaser and to which the user has declared these conditions to be applicable, save where the parties have expressly departed from these conditions in writing.
- The present conditions shall likewise be applicable to all agreements made with the user, for the execution of which third parties need to be involved.
- Any general conditions of the purchaser will be applicable only if it has expressly been agreed in writing that they will be applicable to the agreement to the exclusion of these conditions. In such eventuality any still conflicting provisions in the general conditions of user and purchaser shall apply between the parties only if and insofar as they form part of the user’s conditions.
- In the event that one or more provisions in these general conditions is/are invalid or should be annulled, the remaining provisions of these general conditions shall remain fully applicable. The user and the purchaser shall in such case consult for the purpose of agreeing on new provisions to replace the invalid or annulled provisions, in which connection, if and insofar as is possible, consideration shall be given to the purpose and tenor of the original provision.
ARTICLE 3 OFFERS AND BIDS
- All offers and indications of price made by the user in price-lists, brochures or in whatsoever form shall be entirely without engagement, save where in the offer a deadline for acceptance has been mentioned.
- Offers made by the user are made without engagement; they will be valid for thirty days, save where otherwise indicated. The user will be bound by such offers only if acceptance thereof is confirmed by the purchaser in writing within thirty days.
- Delivery times mentioned in offers made by the user are indicative only and where exceeded shall not entitle the purchaser to rescind or seek damages, save where otherwise expressly agreed.
- Prices mentioned in the said bids and offers are exclusive of VAT and other imposts levied by the government, and also despatch and any shipping and packaging costs, save where otherwise expressly stated.
- In the event that an acceptance differs (on minor points) from the bid made in the offer, the user will not be bound thereby. In such case the agreement will not come into being in accordance with such divergent acceptance, save where the user indicates otherwise.
- A composite indication of price shall not oblige the user to deliver a part of the goods included in the offer or bid at a corresponding part of the price thus indicated.
- Offers or bids shall not automatically apply in respect of repeat orders.
- Orders made by the purchaser may not be revoked without the user’s consent. They will be binding on the user only if and insofar as the user has confirmed this in writing. The user will be entitled to refuse orders without giving any reason. A refusal of an order by the user for any reason whatsoever may not under any circumstance give rise to any claim for damages by the purchaser. Orders will be subject to a minimum order amount to be applied by the user.
- Oral promises made by representatives or intermediaries of the user will be binding on the user only if confirmed by the user in writing.
ARTICLE 4 EXECUTION OF THE AGREEMENT
- The user will not be liable for any loss or damage of whatsoever kind arising from the fact that the user has relied on incorrect and/or incomplete information supplied by the purchaser, unless such incorrectness or incompleteness ought to have been known to the user.
ARTICLE 5 DELIVERY
- Delivery will be made ex user’s warehouse.
- Delivery will be made to the place specified in the sales order and in the absence of any such indication to the office address of the other party, in which connection the user himself will determine the method of transport and packaging, save where otherwise agreed in writing.
- In the event that delivery takes place on the basis of “Incoterms”, same shall be subject to those “Incoterms” in force at the time the agreement is made.
- The purchaser shall be obliged to accept the goods at the moment that the user delivers, or causes these to be delivered, to him, or at that moment at which they are made available to him in accordance with the agreement.
- In the event that the purchaser refuses acceptance or omits to furnish the information or instructions which are necessary for delivery, the user will be entitled to store the goods for the account and risk of the purchaser.
- In the event that the goods are delivered the user will be entitled to invoice for any delivery costs. These will then be invoiced separately.
- In the event that the user requires information from the purchaser in connection with the execution of the agreement, the delivery time shall commence after the purchaser has furnished such information to the user.
- In the event that the user has indicated a time for delivery, such time will be by way of indication. A delivery time thus indicated shall therefore under no circumstances be a non-extendible period. In the event that a deadline is exceeded the purchaser must serve formal written notice of default on the user.
- All delivery times indicated by the user are entirely without engagement and the mere exceeding thereof shall not put the user in default nor entitle the opposing party to any damages.
ARTICLE 6 SAMPLES AND MODELS
- In the event that the purchaser has been shown or supplied with a sample or model, it shall be assumed only to have been supplied by way of indication without the need for the goods to correspond thereto, save where it has expressly been agreed that the goods will correspond thereto.
ARTICLE 7 INSPECTION, COMPLAINTS
- The purchaser shall be obliged to inspect (or cause to be inspected) the goods delivered at the moment of delivery or collection, but in any event within as short a period as possible. In this connection the purchaser must ascertain whether the quality and quantity of the goods delivered corresponds to the agreement or at least meets the requirements applicable thereto in normal (commercial) dealings.
- Any visible defects or shortages must be notified to the user in writing within three days of delivery. Non-visible defects or shortages must be notified within three weeks of being discovered.
- If, in accordance with the preceding paragraph, a complaint is made in good time, the purchaser shall remain obliged to accept and pay for the goods purchased. In the event that the purchaser wishes to return defective goods, same shall take place with the prior written consent of the user in the manner indicated by the user.
ARTICLE 8 PAYMENTS, PRICE AND COSTS
- The prices charged by the user are exclusive of VAT and any other imposts and any costs incurred in connection with the agreement, including shipping and administrative costs, save where otherwise indicated.
ARTICLE 9 PAYMENT
- Payment must be made within 14 days of the invoice date, save where any different period has been agreed in writing, in a manner to be indicated by the user and in the currency in which the invoice has been raised. Objections to the value of invoices shall not suspend the obligation to make payment.
- In the event that the purchaser fails to make payment during the period of 14 days, he shall automatically be in default. In such eventuality the purchaser shall be liable for interest of 1 % per month, save where statutory interest is higher, in which case statutory interest shall apply. The interest on the sum claimable will be calculated with effect from the moment that the purchaser is in default until the moment of payment of the amount in full. All costs incurred for collecting the receivable is for the account of the purchaser.
- In the event of liquidation, bankruptcy, attachment or suspension of payments on the part of the purchaser, the user’s claims against the purchaser shall fall due for payment with immediate effect.
- The user will be entitled to use the sums paid by the purchaser in the first instance in reduction of the costs, thereafter in reduction of the accumulated and overdue interest payable and finally in reduction of the principal and accrued interest.
The user may, without thereby falling into default, refuse an offer of payment in the event that the purchaser indicates a different sequence for such allocation. The user may refuse satisfaction in full of the principal if in such connection the accumulated and overdue and accrued interest and costs are not also paid.
- The user will be entitled to charge a credit restriction surcharge of 2 %. This surcharge will not payable when payment is made within 7 days of the invoice date.
ARTICLE 10 ONWARD DELIVERY
- The other contracting party may only deliver onwards the products supplied by the user in the user’s original unaltered packaging and may not furnish them with any other marks or indications, save where otherwise agreed in writing.
ARTICLE 11 RETENTION OF OWNERSHIP
- The risk attaching to the products delivered shall pass to the purchaser at the moment of delivery, irrespective of the fact that ownership may not have been transferred to the other party.
- All goods delivered by the user shall remain the user’s property until such time as the purchaser has complied with all subsequent obligations derived from all agreements made with the user.
- The purchaser will not be entitled to pledge or in any other manner to encumber goods covered by retention of ownership.
- In the event that third parties levy attachment on goods delivered and covered by retention of ownership or wish to establish or assert rights thereto, the purchaser shall be obliged to notify the user thereof as quickly as may reasonably be expected of him.
- In the event that the user wishes to exercise his rights of ownership as referred to in this article, the purchaser now hereby gives his unconditional and irrevocable consent to the user, or to such third parties as may be appointed by the user, to enter all those premises where the user’s property is situated and to take such property away with him/them.
ARTICLE 12 COLLECTION COSTS
- In the event that the purchaser is in default or arrears of any one or more of his obligations, all reasonable costs incurred to obtain satisfaction without the intervention of the courts shall be for the account of the purchaser. In the event that the purchaser defaults in the punctual payment of a sum of money, he shall be liable for an immediately claimable penalty of 15 % of the still outstanding amount and subject to a minimum sum of € 50.00.
- In the event that the user has incurred higher costs which were reasonably necessary, these too shall be liable to reimbursement.
- Any reasonably incurred judicial and enforcement costs shall likewise be for the account of the purchaser.
- The purchaser shall be liable for interest on the collection costs thus incurred.
ARTICLE 13 SUSPENSION AND RESCISSION
- The user will be entitled to suspend compliance with his obligations or to rescind the agreement in the event that:
- the purchaser fails to abide, or abide fully, by the obligations resulting from the agreement;
- after the agreement has been made circumstances come to the attention of the user which give good grounds for fearing that the purchaser will not abide by his obligations. In the event that there exist good grounds for fearing that the purchaser will only partly or not properly abide by his obligations, suspension will be permitted only if and insofar as any shortcoming would justify such action;
- the purchaser, upon the making of the agreement, is requested to furnish security for the satisfaction of his obligations resulting from the agreement and such security is not forthcoming or is insufficient. As soon as security has been furnished, the authority to suspend will be lost, save where such satisfaction is thereby unreasonably delayed.
- The user will moreover be entitled to rescind the agreement (or cause same to be rescinded) in the event that circumstances arise which are of such nature that compliance with the agreement is impossible or, by the criteria of reasonableness and equity, can no longer be required or where circumstances otherwise arise which are of such nature that the unaltered continuation of the agreement cannot reasonably be expected.
- In the event that the agreement is rescinded the user’s claims on the purchaser will become immediately demandable. In the event that the user suspends compliance with his obligations, he shall retain his claims under the law and in accordance with the agreement.
- The user shall in all cases retain the right to seek compensation.
ARTICLE 14 GUARANTEE, COMPLAINTS AND LIABILITY
- The user hereby guarantees that the goods to be delivered conform to the customary requirements and standards which may be made of them.
- Complaints relating to (transport) damage or shortages in the goods delivered must be noted by the purchaser on the consignment or delivery note and indicated in itemised fashion to the user immediately. Failure to do so shall deprive the purchaser of all his rights against the user on the basis of such damage or shortages, save in cases of intentional fault or gross negligence on the part of the user.
- Differences in the quality and colour of the material used shall be subject to the regulations contained in the conditions of sale and delivery of our relevant supplier.
- Notices and instructions or directions for use, howsoever called, in connection with the use, handling, processing, fixing etc. of our articles are made without engagement and without any liability on our part.
ARTICLE 15 TRANSFER OF RISK
- The risk of loss of or damage to the products which are the subject of the agreement shall pass to the purchaser at the moment at which they are legally and/or in fact delivered to the purchaser and thereby come into the control of the purchaser or any third party nominated by the purchaser.
ARTICLE 16 FORCE MAJEURE
- The parties shall not be bound to comply with any obligation if they are prevented from so doing as a result of a circumstance which is not due to fault or which is not attributable to them in virtue of the law, a juridical act or contemporary business opinion.
- By force majeure in these general conditions shall be understood, in addition to the interpretation given to it in the law and the practice of the courts, all extraneous causes, whether foreseen or not, over which the user cannot exercise any influence, but as a result of which the user is not in a position to comply with his obligations. Strikes at the user’s business are included hereunder.
ARTICLE 17 INTELLECTUAL PROPERTY AND COPYRIGHT
- Without prejudice to any other provisions of these general conditions, the user shall retain those rights and powers to which he is entitled on the basis of the Copyright Act .
- The purchaser shall not be permitted to make changes to the goods, save where otherwise may follow from the nature of the goods supplied or where otherwise agreed in writing.
- For the use of logo’s, illustrations, photographs, brand names etc. by the purchaser of goods delivered by the user, an advance written request must be made. The use thereof must be confirmed in writing by the user. Even where a purchaser has received a written confirmation, the user shall at all times retain the right to cancel such confirmation in writing without the need to give any reason therefor.
ARTICLE 18 DISPUTES
- That court before which the user elects to submit his claim shall be vested with exclusive competence to take cognisance of any disputes, unless such competence is vested in the cantonal courts. Notwithstanding this provision, the user will be entitled to submit such dispute to that court authorised by law.
- The parties shall not appeal to the courts until they have made every effort to resolve such dispute amicably.
ARTICLE 19 APPLICABLE LAW
- Any agreement between the user and purchaser shall be subject to the laws of the Netherlands. Reliance on the Vienna Sales Convention is hereby expressly excluded.
ARTICLE 20 CHANGE, INTERPRETATION AND PLACE OF FILING OF THE CONDITIONS
- These conditions have also been filed at the office of the Kamer van Koophandel in Arnhem under number.
- In any interpretation of the contents and tenor of these general conditions the Dutch text thereof shall be determinative.
- This agreement shall in all cases be subject to the most recently filed version thereof or that version which was applicable at the time the agreement was made.