GENERAL TERMS AND CONDITIONS
In these general terms and conditions ("General Terms and Conditions") the following terms have the following meanings:
Client : any natural or legal person with whom the Vendor enters into an Agreement or negotiates regarding making of an Agreement.
Order : any order by the Client to the Vendor.
Agreement: any agreement made between Vendor and Client, with amendments or additions to it, and all proceedings and legal proceedings for the preparation or execution of that agreement.
Products : all items which are the subject of an Agreement.
2.1. These General Terms and conditions are an integral part of all agreements and are applicable to all related proceedings and legal proceedings of the Vendor and the Client.
2.2. Unless the nature or the specific content of a provision in these General Terms and Conditions states to the contrary, the stipulations of these General Terms and Conditions also apply to Agreements according to which the Vendor does not act in his capacity as vendor.
2.3. The applicability of any general or specific terms and conditions or provisions of the Client is explicitly rejected by the Vendor.
3. Offers, conclusion of Agreements and statements and details of Products
3.1. An offer or (price) quotation is not binding on the Vendor and is valid only as an invitation for the placing of an Order.
3.2. An Agreement only exists if and to the extent that the Vendor accepts a written Order or if an Order is executed by the Vendor.
3.3. All statements provided by the Vendor of numbers, sizes, weights and/or other details of the Products are carefully prepared. The Vendor cannot guarantee however that there will be no discrepancies. Samples shown or provided, illustrations or models are only indications of the Products concerned.
3.4. If the Products delivered differ from the statements of the Vendor or from the samples, illustrations or models in such a way that the Client can no longer reasonably be required to accept them, the Client has the right to cancel the Agreement, although in so far that this cancellation is a reasonable necessity.
4. Amendments and additions
Amendments and additions to any provision in an Agreement and/or the General Terms and Conditions are only valid if set out in writing by the Vendor and apply only to the agreement concerned.
5.1. All prices of the Vendor are given in Euro’s or other currency, if stated, and are exclusive of value added tax. Unless explicitly stated to the contrary, the costs of packaging and shipment, import and export duties and taxes, as well as all other levies or taxes imposed or levied in relations to the Products and the transport of the same are charged to the Client.
5.2. The prices are based on the circumstances applying to the Vendor at the time of the conclusion of the Agreement, such as, inter alia, exchange rates, purchasing prices, freight tariffs, import and export duties, taxes, as well as all other levies or taxes levied directly or indirectly from the Vendor or charged to the Vendor by third parties. Should these circumstances change after the conclusion of the Agreement yet before the delivery, the Vendor has the right to pass on the costs arising therefrom to the Client.
6.1. The Client will pay the Vendor the amount due, in the currency indicated on the invoice, within 30 days of the invoice date. All payments will be made, at the Vendor's preference, at his offices or to a giro- or bank account indicated by him. If payment is made at the offices of the Vendor, this must be done in cash or by means of a guaranteed giro- or bank cheque.
6.2. All sums of money to be paid by the Client must be without reduction, withholdings or errors of calculation. Furthermore, the Client does not have the right to postpone any payment obligation with respect to the Vendor.
6.3. Should the Vendor, at any time, have substantiated doubt with regard to the credit-worthiness of the Client, the Vendor has the right, before taking (further) action, to require payment in advance of the purchase price from the Client or that the client provide an appropriate security to the value of the amount(s), whether or not these are due for payment, that are or will be payable by the Client to the Vendor on the basis of the Agreement at the discretion of the Vendor.
6.4. If the payment period is exceeded the Client is in default. With respect to all payments which are not made, at the latest, on the last day of the payment period the Client is subject to an interest charge for late payment with effect from that day, equivalent to the legal rate of interest in force in The Netherlands at that moment, augmented by 5%.
6.5. If the Client is in default with respect to the Vendor, he or she is required to reimburse the Vendor in full for the legal and non-legal costs. The non-legal costs to be reimbursed by the Client will amount to at least 2% of the sum still unpaid, with a minimum of Euro 225,-, to which the value added tax payable is to be added.
6.6. Should the Vendor send the Client payment reminders or other requests for payment, after the Client is in default, payment, this does not alter the stipulations made in 6.4 and 6.5.
7. Reservation of ownership
7.1. The ownership of the Products, physical delivery notwithstanding, is only transferred to the Client after he or she has paid in full all payments due to the Vendor according to the general terms of any Agreement.
7.2. The Client is not entitled to rent out or permit the use of, to pledge, or otherwise to encumber the Products before the ownership of the Products has been transferred to the Client. The Client is only entitled to sell or deliver the Products, of which the Vendor is owner, to third parties, is so far as this is necessary as part of the Client’s normal business operations.
7.3. If and for as long as the Vendor is the owner of the Products, the Client will immediately inform the Vendor if the Products are (or threaten to be) seized or if claims are made upon the Products (or any part thereof) in any other form. Moreover the Client will inform the Vendor, at the Vendor's first request as to the location of the Products, of which the Vendor is owner.
7.4. In the event of seizure, (temporary) moratorium on payment or bankruptcy the Client will immediately inform the distraining bailiff, the trustee or the liquidator of the (ownership)rights of the Vendor. The Client is to ensure that the seizure of the Products is immediately lifted.
7.5. The Client undertakes, as soon as the Vendor expresses a desire to this effect, to charge a first lien as referred to in article 3:237 Civil Code in favour of the Vendor with respect to Products delivered which by reason of payment have become property of the Client and are still in the Client's possession (although not in modified or converted form), for the greater security of the receivables, other than that mentioned in article 3:92 paragraph 2 of the Civil Code, which the Vendor may have, on any basis, with respect to the Client.
7.6. The Buyer undertakes, not to transfer or pledge receivables which he obtains from his customers to third parties without prior written permission from the Vendor. The Client further undertakes, as soon as the Vendor expresses a desire to this effect, to award the Vendor first lien with respect to the receivables concerned as stated in article 3:239 of the Civil Code, for the greater security of his receivables, on whatever basis, with respect to the Client.
8. Packaging materials
8.1. Durable layout and packaging materials remain the property of the Vendor.
8.2. Should the Client fail to return the lay-out and packaging materials, which are property of the Vendor, within a period of time to be stipulated by the Vendor in useable condition, the Vendor has the right to charge the Client the replacement value.
9. Delivery period
9.1. A delivery period stated by the Vendor is based on the circumstances pertaining to the Vendor at the time of the conclusion of the Agreement and, as such dependent on the performance of third parties, and on the information provided by these third parties to the Vendor. This delivery period will be complied with as far as possible.
9.2. If the Vendor requires data or equipment for the execution of the Agreement which are to be supplied by the Client, the delivery period cannot commence earlier than the day that the required data or equipment come into the possession of the Vendor.
9.3. If the delivery period is exceeded the Client has no right to any compensation. Nor in this event does the Client have the right to cancel the Agreement, unless the delivery period is exceeded to such an extent that the Client cannot be reasonably expected to maintain the part of the agreement in question. In that case the Client is entitled to cancel the Agreement to the extent that this is strictly necessary.
9.4. The Vendor has at all times the right to stagger delivery.
10. Delivery and risk
10.1. The delivery of the Products, the provisions concerning the costs of the delivery and the transfer of the risk made, if this is expressed in the offer or letter of engagement, according to normal conditions of trading practices, such as exw., post-paid, f.o.b., c.i.f. and c.f. and in all such cases are subject to the Incoterms of the International Chamber of Commerce in Paris which are periodically in force.
10.2. If the conditions referred to in the previous paragraph are not agreed, the delivery and the risk-transfer of the Products will be affected at the place and the moment at which the Products are ready for shipment to the Client. The Vendor will inform the Client as soon as possible of the abovementioned moment and place and the Client will refuse the Products as soon as possible and at the latest within 5 working days after being informed.
10.3. Should the Client not refuse the Products on time, then he or she is in default without notice of default. In that case the Vendor is entitled to store the Products at the risk and expense of the Client or to sell these a third party. The Client remains liable to pay the purchase price plus the interest and costs (by way of damages), although in this case minus the net profit of the sale to a third party.
11. Force majeure
11.1. If the Vendor is unable to fulfil his obligations with respect to the Client due to a non-imputable failure (force majeure), the fulfilment of these obligations is suspended for the duration of the situation of force majeure.
11.2. If the situation of force majeure lasts 2 months, both parties have the right to partly or wholly cancel the Agreement in writing, in so far that the situation of force majeure justifies this.
11.3. In the case of a force majeure the Client has no right to any damages or compensation, even if the Vendor may benefit as a result of the force majeure.
11.4. By force majeure is understood any circumstance independent of the intentions of the Vendor, through which the fulfilment of his obligations with respect to the Client are wholly or partially prevented, or through which the fulfilment of the obligations cannot reasonably be expected, irrespective of whether the circumstance could be foreseen at the time of the conclusion of the Agreement. These circumstances include: strikes and lock-outs, standstill or other problems with regard to production by the Vendor or his suppliers and/or transport provided by the Vendor himself or by third parties and/or measures taken by any public institution, and the lack of any permit to be obtained from a public institution.
11.5. The Vendor will inform the Client as soon as possible of any actual or threatened situation of force majeure.
12. Inspection and complaints
12.1. Client is required to personally inspect the Products thoroughly (or have them inspected by a third party authorised by him or her) immediately after their arrival at the point of destination or, if this is earlier, after he or she receives them. Complaints must be made in writing to The Vendor within not longer than 8 days of their arrival, subject to advice of crate- or bale number, and presentation of supporting documentation.
12.2. Defects which could not reasonably have been detected within the period of time set out in paragraph 1,must be communicated in writing to the Vendor immediately after discovery and within no longer than 30 days after the arrival of the Products, subject to advice of crate- or bale number, and presentation of supporting documentation.
12.3. Minor variations in quality, colour, weight, size, finishing, packaging and/or description of Products are not regarded as defects unless these result in a substantial reduction in the usefulness of the Products (or the products of which they are a part).
12.4. After the discovery of any defect the Client is required to immediately suspend the use, the processing, conversion and/or installation of the Products concerned and thereafter to take all reasonable steps to prevent (further) damage.
12.5. The Client will provide the necessary co-operation for the investigation of the complaint, inter alia by providing the facilities for the Vendor to carry out (or have carried out) an investigation of the circumstances of the use, processing, conversion and/or installation.
12.6. If the Client does not co-operate or the investigation is otherwise not (or no longer) possible, the complaint will not be dealt with and the Client has no right to claim.
12.7. This does not permit the Client to return the Products, without the prior consent of the Vendor. The reasonable costs of return only fall to the Vendor if a complaint is made on time, correctly and with good reason.
13. Liability and indemnity
13.1. Unless the damage is caused intentionally or by gross negligence by the Vendor or its management the contractual and legal liability of the Vendor with respect to the Client is limited to the net purchase price of a Product for reason of which the contractual and legal liability of the Vendor exists.
13.2. Unless the damage is caused intentionally or by gross negligence by the Vendor or its management or liability arising out of Title 3 Section 3 Book 6 of the Civil Code, the Vendor is never liable for the Client's consequential loss or that of third parties, which also includes loss of profits or environmental damage and intangible damage.
13.3. Unless the damage is caused intentionally or by gross negligence of the Vendor of its management, the Client will indemnify the Vendor for all liability of third parties, on whatever grounds, including compensation for damage, costs or profits, in relation to the Products or arising out of the use of the Products.
14. Intellectual property
14.1. The Agreement does not give the Client any right of intellectual property with regard to the Products.
14.2. The Vendor declares that to the best of its knowledge the Products do not infringe the laws applying in The Nederlands to the intellectual property rights of third parties. In the event of claims by third parties regarding infringement of such rights, Vezelfabriek 2Wet can if necessary replace or modify the Product concerned, or wholly or partially cancel the Agreement. The Client only has the right to cancel the Agreement is as far as the maintenance of the Agreement cannot reasonably be expected from him or her.
14.3. The Client will notify the Vendor immediately of any claim by a third party regarding an infringement of intellectual property rights with regard to the Products. In the event of such a claim the Vendor only the Vendor is entitled to defend himself, also on behalf of the Client, or to take legal measures against the third party or to reach an agreement. The Client will refrain from all these measures to the extent that he can reasonably be expected to do so.
15. Other obligations of Client
15.1. The Client is responsible for ensuring that the Products are stored in a suitable place.
15.2. The Client will make all information required for the execution of the Vendor's operations available to the Vendor on time and is responsible for ensuring their accuracy and completeness.
15.3. The Client is responsible for ensuring that on his or her side nothing impedes the fulfilment of the delivery, refusal and installation dates/times established.
16.1. If the Client does not fulfil any obligation incumbent upon him that may arise out of any Agreement sufficiently or on time the Client is in default, without notice of default, and the Vendor is entitled:
- to postpone the execution of all Agreements until payment is secured;
- and/or the agreement concerned is wholly or partially cancelled.
16.2. In the event of (temporary) moratorium on payment, bankruptcy, closure or winding-up of the Client's company, all legally binding Agreements with the Client are cancelled, unless the Vendor informs the Client within a reasonable period of time that payment of (a part of) the Agreement(s) is desired. In the latter case the Vendor is entitled to suspend the execution of the Agreement(s) without notice of default until payment has been adequately secured.
16.3. The stipulations in 16.1. and 16.2. do not alter the other rights of
Vendor on the basis of the law.
16.4. In the event of an occurrence such as that referred to in 16.1. or 16.2. all receivables of the Vendor are due immediately and in full from the Client and the Vendor is entitled take back the Products the ownership of which he has reserved and to enter the lands and buildings of the Client for this purpose.
17. Transfer of rights and obligations
The Vendor may transfer any rights arising out of any Agreement to third parties. The Client is only entitled to do so after prior written permission from the Vendor. In the event that obligations of the Vendor are transferred the Vendor must make this known to the Client in advance and the Client has the right to cancel the Agreement with respect to the future from the date on which the transfer is to take place.
18. Agreements with regard to the performance of works or services
18.1. In the event that the Order concerns an order for the conversion or processing of items to be shipped by the Client to the Vendor, the Client will insure these items (or have them insured) to what the Vendor reasonably judges to be a sufficient extent. To this end the Client will forward the proof of insurance to the
Vendor at the first request. In all cases the risk with regard to the items to be shipped for conversion or processing rests with the Client.
18.2. On shipment of the items as referred to in the preceding paragraph the Client secures a right of lien op these items in favour of the Vendor for the greater security of all of whatever the Client owes or will owe the Vendor on whatever basis.
In as far as the conversion or processing of the items in question may result in the creation of new items, the Client secures now as before a right of lien in favour of the Vendor as referred to in the preceding sentence with regard to these new items.
19. Applicable law, competent courts of law
19.1. Dutch law applies both to these General terms and conditions, and the Agreement.
19.2. The applicability of The Sales of Goods (Vienna Convention) Act 1980 (CISG) is excluded.
19.3. All disputes arising with respect to the Agreement or these General Terms and Conditions shall, in so far as this is not otherwise made obligatory by law, be brought before the competent court of Amsterdam, with the understanding that the Vendor has the right to bring the matter of receivables owed by the Client, before other courts of justice which are competent to take cognisance of such receivables, although not simultaneously.
20. Reservation of ownership Germany
The parties agree that all sales on invoice to customers with registered business addresses in
20.3 We reserve the right of ownership of goods delivered until full payment has been made of all receivables arising out of this commercial relationship and other receivables - on whatever legal ground.
20.2. The client is authorised to process our products or to combine them with other products as part of his or her normal working procedures. As security for the receivables referred to in sub-section 1 we receive the joint ownership of the objects resulting from processing or combination without any costs attached for the storage of the same. The extent of our share in joint ownership is etermined by the value relationship between our product and the object resulting from processing or combination.
20.3. By way of revocation, we permit our clients to sell on as part of the normal course of business activities. This right is forfeited in the event of suspension of payments. The client now transfers to us all receivables and additional rights arising out of on-sale. The receivables transferred serve as security for all receivables referred to in sub-section 1. The client is authorised to withdraw the receivables transferred so long as we have not cancelled this authorisation.
The right to sell-on is also forfeited without explicit cancellation, if the client suspends his or her payments. The client must, on our request, inform us in writing as to whom he or she has sold goods and as to which receivables arise out of this sale. He or she is further bound to present us with sworn documents with regard to the alienation of the receivables.
20.4. The client is not authorised to possess objects which are subject to our reservation of ownership or of which we are joint owners , or receivables which have been alienated to us. The client must immediately inform us of seizures or other factors affecting legal rights with regard to the objects which wholly or partially are our property.
20.5. We are authorised at all times to demand the return of goods belonging to us, if the client with a payment remains in default or if his or her financial position substantially worsens. Should we exercise this right, the contract - irrespective of other binding legal provisions - is not terminated unless we explicitly say so.
20.6. Should the total value of the securities held be us exceed our receivables by more than 20%, we will, at the request of the client, make available securities of our choice to the value of this difference.
21. Express resolutive condition
21.1. In the event of non-payment on the due date, we may regard the sale as legally null and void and without reminder.
21.2. The goods remain property of the vendor full payment of the price. All risks are borne by the purchaser.
21.3. The advance payments made remain with the vendor to cover possible losses in further sale.