General terms and conditions

2.1 These General Terms and Conditions will apply to every offer and Agreement between the Seller and the Buyer, to which the seller has declared these terms and conditions applicable. As well as to the extent that these Terms and Conditions have not expressly been deviated from by the parties in writing.

2.2 Where these Terms and Condition refer to ‘purchase’ and ‘sale’, this should be understood to include the contracting and provision of services, in the broadest sense.

2.3 The current Terms and Conditions will also apply to all Agreements with the Seller for the performance of which the Seller uses the services of third parties.

2.4 Any applicability of the Buyer’s general terms and conditions is expressly excluded, irrespective of whether the Buyer’s term and conditions are presented to the Seller before or after it has presented its Terms and Conditions to the Buyer, unless the parties have agreed otherwise in writing.

2.5 If the Seller concludes Agreements with the Buyer more than once, the present General Terms and Conditions will apply to all subsequent Agreements, irrespective of whether or not same have been explicitly declared applicable.

2.6 If one or more provisions in these General Terms and Conditions prove to be null and void or are nullified or if the Agreement contains provisions deviating from those laid down herein, the remaining provisions of these General Terms and Conditions will continue to apply. The Seller and the Buyer will proceed to consult and agree on new provisions to replace the null and void provisions, taking into account as much as possible, the purpose and tenor of the original provisions.

3.1 All offers and quotations, whatever their form, will be without obligation, unless a term for acceptance is stated in the offer.

3.2 Offers will always pertain to products in stock and are subject to the reservation that the products are not sold out.

3.3 Any information or printed materials sent by the Seller to (potential) Buyers will not be binding on it. The Seller will therefore not be obliged to supply products at a price stated in the quotation if this price is based on a typographical or clerical error.

3.4 If a natural person concludes an Agreement on behalf or for the account of another natural person, he/she will be deemed to declare – by signing the order form/order – that he/she is authorised to do so. This person, in addition to the other natural person, will be jointly and severally liable for all obligations ensuing from the Agreement.

3.5 Agreements to which the Seller is a party will not be deemed to have been concluded until the Seller has accepted in writing an order placed by the Buyer or until the actual delivery ex Seller’s warehouse of the sold goods has been effected by the Seller to the Buyer.

3.6 Agreements concluded pursuant to brokering services provided by representatives or agents will not take effect until they have been confirmed in writing by the Seller. If, in such cases, the substance of the Agreement has not been refuted in a substantiated manner within ten days of the written confirmation from the Seller, the Seller’s confirmation will be presumed to contain an accurate description of the Agreement.

3.7 In the event of an oral Agreement, the invoice will be considered to contain a correct and complete representation of the Agreement, unless a complaint is lodged within 14 days of the invoice date.

3.8 The Seller may refuse an order or part of an order or attach conditions to an order without stating its reasons.

3.9 If no Agreement is concluded following the issue of a quotation, the Seller will be entitled to invoice the Buyer for all costs incurred by it. The Buyer should return the quotation issued by the Seller, including any drawings, designs and calculations, to the Seller at first request.

3.10 The prices stated in the offers/catalogues/price lists will be stated on the basis of delivery ex Seller’s warehouse, in euros, and exclusive of Dutch VAT, government levies, shipping costs, freight charges, export levies, insurance costs, loading costs, packaging costs and handling expenses, unless the parties have explicitly agreed on provisions to the contrary.

3.11 The Seller may pass on any price rises after two months, in the event that, between the time of the offer/acceptance and the delivery, a VAT increase or another statutory or cost-price increase of more than 5% has occurred.

3.12 The Seller may also adjust its sales prices if, at the Buyer’s request, its invoice is stated in a currency other than the euro and the exchange rate has changed to the Seller’s detriment during the period between the quotation and invoicing.

3.13 The Seller will be entitled to adjust its prices each year.

3.14 Discounts may only be agreed in writing.

Article 4 Delivery

5.1 The models, illustrations, figures, measurements, weights or descriptions included in offers/advertisements/price lists must be deemed to be a mere indication.

5.2 In the event that the Buyer has been shown a sample or an illustration, the parties must assume that such has been shown as an indication only, unless it has been explicitly agreed that the good to be delivered will be completely identical.

8.1 If the Buyer is in breach of contract or in default of performance or timely performance of its obligations, all reasonable costs incurred in obtaining extra-judicial payment will be borne by the Buyer. The collection costs will be calculated in accordance with the collection rate recommended by the Netherlands Bar Association [Nederlandse Orde van Advocaten] in collection cases, namely: EUR 350 minimum.

8.2 If the Seller has incurred higher costs which were reasonably necessary, such costs will also qualify for reimbursement. Any reasonable court costs and enforcement costs will also be borne by the Buyer. 

Article 9 Retention of title

9.1 All goods supplied by the Seller will remain the Seller’s property until the Buyer has fulfilled all its obligations ensuing from the Agreements concluded with the Seller.

9.2 In respect of delivered goods the title to which has passed to the Buyer pursuant to payment and which are still in the Buyer’s possession, the Seller hereby reserves rights of pledge as referred to in Section 3:237 of the Dutch Civil Code [Burgerlijk Wetboek] as additional security for any claims other than those referred to in Section 3:92(2) of the Dutch Civil Code, which the Seller may have, on whatever basis, vis-à-vis the Buyer. The Buyer shall render its cooperation, at the Seller’s first request, in the creation of such rights of pledge by having same registered.

9.3 The Buyer will be obliged to ensure that goods delivered under a retention of title are kept with due care and recognisable as the Seller’s property. The Buyer will be obliged to insure the goods, for the duration of the retention of title, against damage caused by fire, explosions and water as well as against theft and shall submit the relevant insurance policies to the Seller for inspection at first request. Any claims the Buyer may have vis-à-vis the insurers of the goods pursuant to the said insurance policies should, as soon as the Seller indicates that it so wishes, be pledged by the Buyer to the Seller in accordance with Section 3:239 of the Dutch Civil Code, as additional security for the Seller’s claims vis-à-vis the Buyer.

9.4 If the Buyer fails in its performance of its payment obligations vis-à-vis the Seller or the Seller has good reason to fear of that it will fail in its performance of those obligations, the Seller will be entitled to recover the goods delivered subject to the retention of title. After such recovery, the Buyer will be credited for the goods’ market value, which may never be higher than the original purchase price, less the costs involved in the recovery.

9.5 The Buyer may not pledge, lease, sell or encumber in any other way the goods covered by the retention of title, unless the parties have agreed otherwise.

9.6 If third parties levy attachment on the goods delivered subject to the retention of title or wish to create or enforce rights in respect of same, the Buyer will be obliged to inform the Seller thereof as soon as possible.

9.7 Goods supplied by the Seller subject to the retention of title pursuant to paragraph 1 of this Article may be sold on only within the context of normal business operations. Under no circumstances may such goods be used as a means of payment, nor may they in any way be issued as security to third parties without the Seller’s permission.

9.8 The Buyer undertakes to refrain from assigning or pledging any claims it may acquire vis-à-vis its customers to third parties without the Seller’s prior written permission. The Buyer also undertakes to pledge such claims, if the Seller indicates that it so wishes, to the Seller in accordance with Section 3:239 of the Dutch Civil Code, as additional security for the Seller’s claims, on whatever basis, vis-à-vis the Buyer.

9.9 The Buyer may agree with a third party that this third party will pay the purchase price for it and is therefore subrogated for it for purposes of the Seller’s claim. If payment is effected by a third party that is subrogated for purposes of the Seller’s claim, the retention of title will not lapse.

9.10 As a result of subrogation referred to in paragraph 9 of this article, the Seller will transfer the retained title to the goods for which the third party has paid the purchase price to that subrogated third party.

9.11 The subrogation for purposes of the claim of and transfer of the retention of title to a third party as referred to in paragraphs 9 and 10 of this article will not prejudice the Buyer’s right to hold the Seller liable if the Seller fails in any way in its performance of the Agreements concluded between the parties.

9.12 Should the Seller wish to exercise its retention of title rights as described in this Article, the Buyer hereby grants the Seller or any third parties designated by the Seller its unconditional and irrevocable permission to enter those places where the Seller’s property is located and to recover those goods.

9.13 The Seller’s retention of title will also cover the goods for which the Buyer has paid and any goods, irrespective of whether they have been paid for, which have been processed by the Buyer or third parties in any way. Insofar as necessary, such goods are hereby transferred by the Buyer to the Seller, as security.

9.14 Insofar as the Buyer has transferred the title to the goods, irrespective of whether they have been processed, to third parties and has a claim against these third parties in respect of those goods, it will be obliged, if the Seller so wishes, to transfer the relevant claim to the Seller forthwith, in the context of the security to be provided or the payment to be made to the Seller.

10.1 The Seller will be entitled to suspend performance of its obligations or to dissolve the Agreement in the following events:

• if the Buyer fails to perform the obligations arising from the Agreement or fails to perform them in good time or in full;
• in the event of circumstances of which the Seller has learned following the Agreement’s conclusion that provide good reason for fearing that the Buyer will not perform its obligations, or will not perform such in good time or in full; if there is good reason to fear that the Buyer will only perform its obligations in part or will not perform such properly, suspension will only be permitted to the extent that such is justified by the relevant failure; and
• if, upon the Agreement’s conclusion, the Buyer was requested to provide security for the performance of its obligations arising from same Agreement and such security has not been provided or is insufficient. As soon as security has been provided, the right to suspend performance will lapse, unless the performance has been unreasonably delayed as a result.

10.2 In addition, the Seller will be entitled to dissolve the Agreement or have it dissolved if circumstances arise of such a nature that performance of the Agreement is impossible or can no longer be required pursuant to standards of fairness and reasonableness, or if any other circumstances arise of such a nature that continued unamended maintenance of the Agreement can no longer reasonably be expected.

10.3 If the Agreement is dissolved, the Seller’s claims vis-à-vis the Buyer will become immediately due and payable. If the Seller suspends performance of its obligations, it will retain its claim ensuing from the law and the Agreement.

10.4 The Agreement concluded between the parties will end prematurely, with immediate effect and by operation of law if the other party (Buyer) is declared bankrupt, is granted a suspension of payments, is placed under guardianship, or its business is sold (under execution or otherwise) and proper performance of the obligations ensuing from the Agreement has not been guaranteed, provided that an arrangement has been agreed pursuant to which the rights and obligations provided for in the Agreement concluded between the parties have been transferred to a new other party (Buyer), in consultation with the Seller.

10.5 The Seller will at all times retain the right to claim damages. 

12.4 This warranty will in all cases be limited to the manufacturer’s warranty.

12.5 Goods supplied at a reduced price will not be covered by the warranty.

12.6 As long as the Buyer fails to perform its obligations arising from the Agreements concluded between the parties, it cannot invoke this warranty provision. 

Article 13 Liability