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Terms and ConditionsGeneral Terms and Conditions of Sale and Delivery of Lijmpartner B.V., with its registered office and business address in Tilburg.
1. General1.1. These terms and conditions shall apply to all our offers, agreements and all the ensuing obligations.
1.2. Departures from these terms and conditions are to be explicitly agreed upon with us in writing and shall in such an event only be valid in respect of the specific agreement to which the departures relate.
1.3. In these terms and conditions "the other party" shall be: any [legal entity] private person, that has, wishes to conclude, respectively, either directly or through third parties, an agreement with our company, such likewise to apply to his representative(s), proxy holder(s), assignee(s) or heirs.
1.4. Unless explicitly accepted by us in writing, the other party's general terms and conditions shall not be applicable.
1.5. If we have concluded an agreement with the other party agreeing upon the applicability of these terms and conditions, then these terms and conditions shall also be valid in the event of any additional orders that are granted by the other party verbally, by telephone, by fax, by electronic or other means, regardless written confirmation on our part.
2. Prices2.1. Unless stated otherwise, all quotations shall be subject to price changes.
2.2. Unless stated otherwise, our prices shall be exclusive of VAT, import duties and other taxes, levies and dues, exclusive of costs of transport, insurance, assembly and commissioning. The prices shall be based on the cost-price determining factors, whatever these might be, applicable at the time the offer is made.
2.3. In the event of an increase in one or several of the cost-price determining factors, we shall be entitled to increase the agreed price accordingly.
2.4. Orders under € 100 will be subject to a € 10 surcharge for costs entailed in providing small orders plus applicable shipping costs.
3. Period of Delivery and Risk; Obligation to Take Delivery3.1. Period of delivery shall be the period, as stipulated in the agreement, within which the goods must be delivered. Unless explicitly agreed upon otherwise in writing, periods of delivery stated by us shall not be firm dates. In the event of overdue delivery we will therefore require a written notice of default, whereby the other party will afford us a reasonable period to as yet meet our obligations. We shall be entitled to make partial deliveries.
3.2. The agreed-upon period of delivery shall commence on the date on which the agreement was effected, at any rate no sooner than the date on which we have in our possession all data required to discharge our obligations and not before all permits / formalities required for intended discharge will have been obtained, complied with or communicated by the other party, and not before we received from the other party the amounts which are to be paid in advance in accordance with the delivery contract. The agreed-upon period of delivery shall be extended by the period with which we suspended our performance pursuant to these terms and conditions and/or the law or with which we were prevented from effecting compliance due to a force majeure situation as defined in article 11.
3.3. Unless agreed-upon otherwise, delivery will be ex our warehouse (EX WORKS, Incoterms 2000). Delivery of the goods shall be deemed to have been effected, and the risk regarding these goods shall have transferred to the other party:
- once the goods are inside the mode of transport, also when we provide the transport;
- when the other party's cooperation, as envisaged by article 4.4 sub a and b, is (deemed to have been) refused;
If and in so far delivery carriage paid within the European territories of EU member states has been agreed upon, the goods shall be insured against the usual transport risks with the exclusion of war risk or other extraordinary risks. However, risk transfer as defined above, shall remain in full force.
3.4. The other party shall be obliged to afford any and all cooperation required to allow us to accomplish our performance. Such cooperation shall be deemed to have been refused:
a. in the event that we provide the transport: if delivery of the goods to the other party has been attempted, but proved impossible;
b. in the event that the other party provides the transport: when the goods are not collected by, or on his behalf, on the date agreed upon.
In such events the other party shall be in default without further notice of default being required. All our costs arising from such refusal shall be for account of the other party, without prejudice to any and all other rights on our part regarding such non-performance. Above-mentioned costs shall also explicitly include a fair reimbursement of costs incurred for transport and storage based on locally applicable rates.
4. Purchase on Approval4.1. Purchase on approval shall be the case if parties have agreed upon conclusion of the purchase contract subject to the other party's stated intention to purchase the goods delivered on approval. If such a delivery on approval has been agreed upon, the other party shall be obliged to effect insurance for his own account for the goods delivered on approval against risks of damage, loss, and theft for the duration of the delivery on approval
4.2. The other party shall inform us within 21 calendar days upon delivery of the goods delivered on approval whether he intends to purchase the goods. If the other party has not returned the goods delivered on approval within 21 calendar days, he shall be deemed to have purchased the goods effective the day of delivery. If the other party has returned the goods, we will credit the other party for the amount of any goods thus returned, provided they are in mint condition and, in the case of consumables, in their unbroken and original packaging.
5. Delivery On Call5.1. If delivery on call has been agreed upon, we may effect delivery of the goods no later than 30 working days from the day they were called.
5.2. When call periods have been agreed upon, then - in the event of a tardy call - the delivery period stated in article 6.1 shall be extended by 10 working days.
5.3. If delivery on call has been agreed upon, then the other party shall be obliged to proceed with the call order in default of which we shall, in the event of non-compliance by the other party, be entitled to store the goods (or have them stored) for account and risk of the other party in our warehouse or elsewhere or, as the case may be, to sell them for his account, without prejudice to our other rights regarding the non-compliance on the part of other party. Such storage or sale shall create a situation whereby delivery of the goods shall be deemed to have been made.
6. Payment, Interest and Costs6.1. Unless explicitly agreed upon otherwise in writing, payment is to be made without any offsets within 30 days upon invoice date by a method indicated by us. We shall be entitled to invoice partial deliveries separately.
6.2. The payment periods stated in 7.1. shall be firm dates. The other party shall thus be in default, without further notice of default being required, in the event of expiration of the payment period. Once the other party is in default, he shall, as from the due date until the moment of full settlement, owe a monthly 1.25 % interest – whereby, in calculating this interest, part of a month shall be one whole month – over the outstanding amount.
6.3. In the circumstance as envisaged by article 7.2, we shall furthermore be entitled, in so far as delivery under an agreement concluded with the other party has not yet been effected, to suspend said delivery in its entirety until full payment of the amount in arrears shall have been received.
If, after due reminder to pay, payment has not been made within the stipulated period, we shall, at our discretion, be entitled to dissolve the agreement in whole or in part by means of a written notification, without prejudice to our entitlement to damages.
6.4. All judicial and extra-judicial collection costs that are incurred by us in order to ensure compliance with the other party's obligations shall be for the other party's account. The extra-judicial costs shall be calculated according to the collection rates recommended by the Nederlandse Orde van Advocaten (National Bar), such at a minimum of € 250, all of this without prejudice to our right to claim the higher actual amount of the loss.
6.5. Payment to us is to be made, without any deduction, into a bank account in the Netherlands to be designated by us or, as the case may be, by another method to be indicated by us.
6.6. Payments made by the other party shall always serve to settle first the interest and costs due, thereafter the claimable amounts regarding which valid reservation of title cannot be enforced, and subsequently the longest outstanding exigible invoice amounts, even if the other party states that the settlement relates to a different or a later (invoice) amount.
6.7. We shall be entitled to require security to be furnished by the other party. This security must duly cover our claim and any relevant interest and costs and allow us to realize such a security without impediment and undue effort. If the security is denied, we shall be entitled to suspend (further) compliance with our obligations towards the other party. If security is demanded, the period of delivery shall be suspended until the requested security has been furnished.
7. Reservation of Title, Right of Revendication and Right of Retention7.1. We shall retain title to all the goods delivered by us and located at / kept in the custody of the other party until such time that the other party shall have settled all the amounts due to us for goods delivered, or to be delivered, by us to the other party pursuant to an agreement. We shall also retain title to all goods delivered by us if the other party has failed to pay the purchase price of the goods delivered under the agreements intended here as well as if the other party has failed to settle the amounts owing to us by the other party due to his failure to comply with the obligations arising from the agreements (including the amounts due to us on account of interest payments and costs].
The other party shall not be authorised to process or to sell, to let, or otherwise grant the use of, the goods until the date of full settlement, unless this is done in the course of his normal business operations. No more shall the other party be authorised to pledge the goods until the date full settlement has been received. The other party undertakes to lend his cooperation, at our first request, to the creation of a right of lien on the debts owed to the other party by his clients in consideration of the delivery of the goods.
7.2. Based on the provisions of this article, we shall at all times be entitled to remove the delivered goods [have them removed] from the other party, or his holder(s), if the other party has failed to discharge his obligations arising from the agreement. If, despite a written reminder, the other party refuses to lend his cooperation to the recovery of the delivered goods, he shall forfeit a penalty of € 500 per day, or part of a day, that he is / remains in default.
7.3. The other party shall be under the obligation to effect adequate insurance to cover the goods envisaged by this article, in any event against the risk of theft, damage and destruction. The other party shall not be competent to grant a right of lien to third parties on any legal claims against his insurance company arising from these insurance policies, nor shall he pledge these legal claims to third parties as security in the broadest sense of the word. Payouts for damage and loss of the goods envisaged by this article shall take the place of the goods in question. The other party shall furthermore be under the obligation to segregate the goods envisaged by this article from other goods and to ensure that the brands and/or markings affixed thereon are maintained intact. Failure to observe this clause shall cause the other party to owe us an immediately claimable penalty of € 10,000, without prejudice to our right to full compensation of the loss thus incurred by us.
7.4. The other party shall be obliged to send a written notification to any and all third parties or, as the case may be, this third party's proxy holder or receiver, intending to seize goods delivered by us, subject to our reservation of title, while sending a copy of this notification to us, to the effect that we hold title to these goods. Such on penalty of forfeiting an immediately claimable penalty of € 5,000 or the original invoice amount, if this amount proves higher, of the goods to which we would (could) lose title as a result of such seizure, suspension of payments or bankruptcy. This penalty sum shall be in addition to any obligation to pay damages.
7.5. We shall be entitled to retain the other party's goods in our custody until all the amounts owed to us by the other party have been settled, irrespective of whether the orders awarded by the other party relate to aforementioned goods or to other goods of the other party, unless the other party has furnished sufficient security for payment.
We shall also have the right to retention in the event that the other party has been granted a moratorium or has been declared bankrupt.
8. Complaints8.1. The other party is obliged to conduct detailed checks for any defects to, or visible damage of, the items delivered, forthwith upon delivery or, as the case may be, to undertake these checks upon our notification that the goods are at the other party's disposal.
8.2. Complaints will only be dealt with if the other party informs us in writing of the defect within 8 days upon its discovery. The defect must be reported in writing, clearly stating the nature and basis of the complaint as well as the invoice date and invoice number. We must also be afforded the opportunity to check the delivered goods in their original state and packaging, this on penalty of forfeiture of the other party's rights to claim compensation for the alleged defects if we are not afforded this opportunity.
8.3. The defects, found immediately upon delivery as envisaged by article 9.1, and furthermore only those defects that could not reasonably be detected during the inspection as envisaged by article 9.1, but that are as yet discovered 6 months upon delivery and that are reported in writing within 8 calendar days upon their discovery, accompanied by an accurate statement of the nature and basis of the complaint will, in so far as they can demonstrably be attributed to us as non-performance on our part, be made good by us free of charge by way of – at our option – repair or replacement.
8.4. Returning delivered goods shall be allowed only after we have attached our prior permission thereto, and is to be effected in accordance with the (transport) instructions to be issued by us. The return shipment must be accompanied by a written report concerning the alleged complaint from the other party. Return shipments not having our prior written permission do not need to be accepted by us. If in such an event we do, after all, accept the returned goods, these goods will be stored for the other party's account and risk and held at the latter's disposal. Permission for the return, acceptance of, respectively, the goods by us cannot in any manner or form be construed as an acknowledgement on our part that the complaint submitted by the other party has any basis.
8.5. Defects in the goods delivered shall not be ground for dissolving the agreement in question, unless these defects are defects as envisaged by article 9.2 and we have failed, after repeated attempts, to remedy the defect(s) in an acceptable manner. In such an eventuality, the other party shall be entitled to dissolve the agreement, if and in so far continuation of the agreement in question cannot reasonably be demanded from him.
8.6. The other party is to reimburse us for the costs incurred through unfounded complaints.
8.7. Submitting a complaint shall not relieve the other party of his payment obligations towards us. The other party shall not be entitled to suspend his payment obligations.
8.8. If the other party performs work, or has work performed, on the delivered goods, without our prior permission, the other party's right to claim for defects in the goods delivered shall lapse.
9. Force Majeure9.1. Force majeure shall be taken to mean: any circumstance that is beyond the control of parties or that is unforeseeable, as a result of which compliance with the agreement can no longer reasonably be demanded from us by the other party. Force majeure shall in any event be taken to mean: default and/or non-performance by or at our suppliers, subcontractors and/or transporters due to fire, strike or lockout, riots or insurrection, war, government measures, including export, import or transit prohibitions, freezing conditions and any and all other circumstances that are of such a nature that we are not (any longer) able to meet our obligations towards other party in consequence thereof.
9.2. If a force majeure situation should occurs, we shall not be in default and we shall be entitled to suspend performance of the obligations arising from the agreement if it involves temporary impracticability to comply with our obligations, or permanently dissolve the agreement if and in so far said situation involves permanent impracticability to comply with our obligations. In the event of a force majeure situation, the other party shall not be entitled to damages.
10. Safety; Parts and Materials10.1. When using any equipment or machinery delivered by us, the other party is only to use the material – such as fixing materials, strapping and wrapping materials – that we have recommended to the other party as being fit for use in the machine or the equipment supplied by us.
10.2. In the event of repair, replacement, respectively, of parts of a machine or equipment supplied by us, the other party is only to use parts that were recommended by us as being fit for the machine or the equipment in question. In the event of such work being undertaken, the other party shall furthermore observe the instructions for use and the safety regulations envisaged by article 11.4.
10.3. If the other party fails to adhere to the above-defined obligations, then we shall be competent to exclude the other party from taking delivery of parts as intended.
10.4. The other party is to comply with the operating instructions and the safety regulations and is to communicate these to his employees and other third parties that make use of these items. The other party is to provide a translation of the operating instructions and of the safety regulations supplied by us, enabling employees and other third parties to familiarise themselves with them, specifically when the text supplied by us is not written in the Dutch language or is written in a language that persons concerned have no (proper) mastery of. The other party is moreover obliged to observe the regulations imposed by the competent authorities in this regard and to enforce compliance with them.
10.5. If the other party delivers the items delivered by us to a third party, he is to reach agreement with his buyer that the latter will observe the obligations defined in this article, and the other party is to ensure that the instructions for use and the safety regulations supplied by us are also made available to this buyer.
10.6. Without prejudice to the provisions of article 12, we shall at no time be liable for loss [resulting from an injury] if the other party acted contrary to the obligations stated in articles 11.1 through 11.5. The other party shall also hold us harmless against claims of employees and other third parties, including, specifically, buyers.
11. LiabilityDamage ensuing from, or related to, deliveries for which we can be held liable at law shall, in so far imperative law does not provide otherwise, be subject to the following:
11.1. Only such damage shall be eligible for compensation in respect of which the other party shall have irrefutably demonstrated that it is the result of a circumstance or event for which we can be held liable at law.
12. Several Liability12.1 If we conclude an agreement with two or more persons or, as the case may be, legal entities, then each of these (legal) entities shall be severally liable for full compliance with the obligations arising for them from the agreement.
12.2a Damage in so far comprising loss of profit, or diminished revenues, and any and all other indirect loss or consequential loss, such as trading loss or any damages or penalty sums owed by the other party to third parties, shall on no condition be eligible for compensation.
12.2b Damage comprising damage to or loss of a good shall be eligible for compensation up to a maximum amount of € 250,000. A 'good" in the sense of this provision shall neither be a good delivered by us nor a good to which we have performed work pursuant to the agreement that forms the basis for the other party's claims for damages. Damage relating to bodily injury shall be eligible for compensation up to a maximum amount of € 500,000.
12.2c Without prejudice to the provisions of 12.2a and 12.2b, any damage other than that intended in these sub-paragraphs shall be compensated up to a maximum of 100% of the net invoice value – being the gross invoice value minus VAT, any and all government levies, costs of transport and insurance – of the delivery to which the damage relates.
12.3. The compensation stated under 12.2b and 12.2c shall apply to all combined damage events ensuing from the delivery to which the damage relates.
12.4. Without prejudice to the provisions of article 9, paragraphs 1 and 2, and of the preamble, and the preceding paragraphs of this article, damage shall be eligible for compensation only when incurred and becoming apparent within 12 months upon delivery of the goods in question and, furthermore, if reported to us in writing within said period within 8 calendar days upon discovery.
12.5. On penalty of complete loss of any right to damages, we shall be afforded all the requisite cooperation with our investigation into the cause, nature and scope of the financial loss for which compensation is being claimed. Setoffs against claims for damages that have not been acknowledged by us or that have not been irrevocably established at law shall not be allowed.
12.6. The other party shall hold us harmless against any claims whatsoever from third parties, including claims from the other party's employees, or from his buyer, who allege to have incurred damage through goods delivered by us to or on behalf of the other party, except in so far as the other party can demonstrate that we in our relationship towards the other party are to be held liable for the damage under the agreement and these general terms and conditions, and that we are to compensate the other party for this damage.
12.7. If the other party is the injured party in the sense of article 6:185 BW, then his ensuing claims shall not be excluded or limited as a result of this article.
13. Applicable Law; Disputes13.1. All our offers, agreements and all the ensuing obligations shall be exclusively subject to the laws of the Netherlands. Applicability of the Weens Koopverdrag [Vienna Sales Convention] (CISG) (Trb. 1981, 184; 1986, 61) shall be explicitly excluded.
13.2. All disputes arising from our offers and/or agreements will be settled by the competent court in the city where our registered seat is located.
13.3. For purposes of interpreting or, as the case may be, construing these general terms and conditions only the wording in the Dutch language shall be legally valid.