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Dutch
General terms and conditions for delivery to non-consumers
FROM:
Exive International B.V. Kelvinstraat 12 6902 PW Zevenaar
hereinafter referred to as: user
Article 1 - Definitions
1. In these general terms and conditions the following terms are used in the following sense, unless explicitly stated otherwise:
User: the user of the general terms and conditions;
Buyer: the counterparty of the user, acting in the exercise of a profession or business;
Agreement: the agreement between user and buyer.
Article 2 General
1. The provisions of these general terms and conditions apply to every offer, communication, acceptance and every agreement between user and a buyer to which user has declared these terms and conditions applicable, insofar as the parties have not explicitly deviated from these terms and conditions in writing. By placing an order, the buyer explicitly agrees with the provisions of these general terms and conditions even if the terms and conditions of the buyer are different. Orders and orders from the buyer count as his acknowledgment and acceptance of these terms and conditions of delivery, with the simultaneous total cancellation of any general and / or special purchasing conditions of the buyer.
2. The present terms and conditions also apply to all agreements with the user, for the implementation of which third parties must be involved.
3. General terms and conditions of the buyer only apply if it has been explicitly agreed in writing that these apply to the agreement to the exclusion of these terms and conditions. In that case, any conflicting provisions in the general terms and conditions of the user and buyer will only apply between the parties if and to the extent that they form part of the user's terms and conditions.
4. If one or more provisions of these terms and conditions are invalid or should be declared void, the remaining provisions of these terms and conditions will remain fully applicable. The user and the buyer will then consult in order to agree new provisions to replace the invalid or voided provisions, taking into account if and as far as possible the purpose and scope of the original provision.
5. The buyer authorizes and agrees, and to the extent permitted by law, that the user may provide all relevant information with regard to the agreement digitally (invoices, order confirmation, payment overviews, general information). For this purpose the buyer will provide the user with the necessary address details.
Article 3 Offers and quotations
1. All offers are without obligation, unless a period for acceptance is stated in the offer.
2. The offers made by user are without obligation; they are valid for thirty days, unless stated otherwise. User is only bound by the offers if the acceptance thereof is confirmed in writing by the buyer within thirty days.
3. Delivery times in quotations from the user are indicative and do not give the buyer the right to dissolution or compensation if they are exceeded, unless explicitly agreed otherwise.
4. The prices in the aforementioned offers and quotations are exclusive of VAT and other government levies as well as shipping and any transport and packaging costs, unless explicitly stated otherwise.
5. If the acceptance deviates (on minor points) from the offer included in the quotation, the user is not bound by this. The agreement will then not be concluded in accordance with this deviating acceptance, unless the user indicates otherwise.
6. A compound quotation does not oblige user to deliver part of the items included in the offer or quotation at a corresponding part of the stated price.
7. Offers or quotations do not automatically apply to repeat orders.
8. All data stated in the catalogs, documentation etc. are indicative. Changes in version, color, weight, description, illustrations, etc. must be considered as modifications to improve the product and can be adapted to the buyer without prior notice.
Article 4 Execution of the agreement
1. User shall execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the current state of science.
2. If and to the extent that a proper execution of the agreement requires this, user has the right to have certain work done by third parties.
3. The buyer shall ensure that all data, of which the user indicates that they are necessary or which the buyer should reasonably understand to be necessary for the execution of the agreement, is provided to the user in a timely manner. If the data required for the implementation of the agreement are not provided to the user in time, the user has the right to suspend the performance of the agreement and / or to charge the buyer the additional costs resulting from the delay in accordance with the usual rates .
4. The user is not liable for damage, of whatever nature, caused by the fact that the user assumed incorrect and / or incomplete data provided by the buyer, unless the user should have been aware of this incorrectness or incompleteness.
5. If it has been agreed that the agreement will be implemented in phases, the user may suspend the implementation of those parts that belong to a subsequent phase until the buyer has approved the results of the preceding phase in writing.
6. If work is carried out by the user or third parties engaged by the user in the context of the assignment at the location of the buyer or a location designated by the buyer, the buyer shall provide the facilities reasonably required by those employees free of charge.
7. The buyer indemnifies the user against any claims from third parties who suffer damage in connection with the implementation of the agreement and which can be attributed to the buyer.
8. An agreement is only concluded through the written order confirmation of the User. For direct sale from warehouse stock it is possible to issue the invoice without a prior written order confirmation. User is entitled not to accept orders and / or delivery orders without giving reasons.
Article 5 Delivery
1. Delivery takes place ex factory / store / warehouse of user.
2. If delivery takes place on the basis of "Incoterms", the "Incoterms" applicable at the time of concluding the agreement will apply.
3. The buyer is obliged to accept delivery of the goods at the moment that the user delivers them to him or has them delivered, or at the moment when they are made available to him in accordance with the agreement.
4. If the buyer refuses to accept delivery or fails to provide information or instructions that are necessary for the delivery, the user is entitled to store the goods at the expense and risk of the buyer.
5. If the goods are delivered, the user is entitled to charge any delivery costs. These will then be invoiced separately. The risk of transport always takes place at the expense of the Buyer.
6. If the user requires information from the buyer in order to fulfill the agreement, the delivery time starts after the buyer has made this available to the user.
7. If user has specified a delivery time, this is indicative. A specified delivery time is therefore never a strict deadline. If a period is exceeded, the buyer must give the user written notice of default.
8. User is entitled to deliver the goods in parts, unless this has been deviated from in the agreement or if the partial delivery does not have independent value. The user is entitled to invoice the delivered items separately.
9. If it has been agreed that the agreement will be implemented in phases, the user may suspend the implementation of those parts that belong to a subsequent phase until the buyer has approved the results of the preceding phase in writing.
10. Delivery is deemed to have taken place: -Upon receipt of the goods, even if they are collected by or on behalf of the Buyer. -When transferring the goods to a third party or carrier, if the goods are transported through the latter. -By offering the goods to the Buyer once.
Article 6 Packaging
1. If applicable, the User is entitled to pass on costs arising from the mandatory implementation of the Packaging Decree to the Buyer.
Article 7 Samples and models
1. If a sample or model has been shown or provided to the buyer, then it is presumed to have been provided only as an indication without the item having to comply with it, unless it is expressly agreed that the item will correspond to it.
2. In the case of agreements concerning immovable property, the indication of the surface area or other dimensions and indications is also presumed to be intended merely as an indication, without the immovable property having to comply therewith.
Article 8 Research, complaints
1. The buyer is obliged to inspect the goods delivered at the time of delivery or delivery, but in any case within the shortest possible time. In addition, the buyer should investigate whether the quality and quantity of the delivered goods correspond to what has been agreed, or at least meets the requirements that apply in normal (trade) traffic.
2. Any visible defects or shortages must be reported to the user in writing within three days after delivery. Invisible defects or shortages must be reported within three weeks after discovery, but no later than within 12 months after delivery.
3. If a complaint is submitted in time under the previous paragraph, the buyer remains obliged to purchase and pay for the purchased items. If the buyer wishes to return defective items, this must be done with the user's prior written consent in the manner indicated by the user. If this nevertheless takes place without the user's permission, both the shipment and storage after arrival are at the expense and risk of the buyer.
Article 9 Reimbursements, price and costs
1. If the user has agreed a fixed sale price with the buyer, the user is nevertheless entitled to increase the price.
2. The User may charge on price increases, among other things, if significant price changes have occurred between the time of the offer and the performance of the agreement with regard to, for example, exchange rates, wages, raw materials, semi-finished packaging material.
3. The prices charged by the user are exclusive of VAT and any other levies, as well as any costs to be incurred in the context of the agreement, including shipping and administration costs, unless stated otherwise.
Article 10 Amendment of the agreement
1. If during the execution of the agreement it appears that for a proper execution it is necessary to change and / or supplement the work to be performed, the parties will adjust the agreement accordingly in a timely manner and in mutual consultation.
2. If the parties agree that the agreement is amended and / or supplemented, the time of completion of the implementation may be affected. The user will inform the buyer of this as soon as possible.
3. If the change and / or supplement to the agreement has financial and / or qualitative consequences, the user will inform the buyer about this in advance.
4. If a fixed rate has been agreed upon, the user shall indicate to what extent the change or supplement to the agreement will result in this fixed rate being exceeded.
5. Contrary to the provisions in this regard, the user will not be able to charge additional costs if the change or supplement is the result of circumstances that can be attributed to him.
Article 11 Payment
1. Payment must be made in cash unless otherwise agreed in writing with the buyer. If payment of delivered goods and/or services on account has been agreed upon, payment must be made strictly within the term stated on the invoice, starting on the invoice date, in a manner to be indicated by the user and in the currency in which the invoice was made. Objections to the amount of the invoices do not suspend the payment obligation. Payment discounts are not permitted, unless a payment discount has been explicitly agreed with user in writing.
2. User has the possibility to charge a credit limitation surcharge of 3%. This surcharge is not payable if payment is made within the set payment term. If payment is made within the set term of payment, the buyer shall be entitled to deduct the 3% Credit Restriction Fee charged, but without set-off of the VAT.
3. If the Purchaser fails to pay within the set term of payment, the Purchaser shall be in default by operation of law. Neither a summons nor notice of default will be required to enter into default. In that case, the buyer will owe the calculated credit commission of 3% as well as interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate will apply. The interest on the amount due and payable will be calculated from the moment the buyer is in default until the moment of payment in full. If the buyer remains in default after a written demand for payment, then - without prejudice to any other right to which the user is entitled - all outstanding claims from the user will become immediately due and payable.
4. In the event of the buyer's liquidation, bankruptcy, attachment or suspension of payments, the user's claims against the buyer shall become immediately due and payable.
5. User shall be entitled to have the payments made by the buyer go first of all to reduce the costs, then to reduce the interest that has fallen due and finally to reduce the principal sum and the accrued interest.
User may, without being in default as a result, refuse an offer of payment if the buyer designates a different sequence of attribution.
User may refuse full repayment of the principal sum, if the outstanding and accrued interest as well as the costs are not also paid.
6. User shall be entitled to deviate from the foregoing provisions for each delivery or partial delivery by demanding cash payment from the buyer, which may also be understood to mean cash on delivery payment.
7. If buyer fails to pay a due and payable claim, user shall be entitled to demand security for payment and buyer shall be obliged to provide such security. If buyer fails to provide the required advance payment or security, user's obligation to deliver shall lapse without prejudice to user's right to compensation for all damages, costs and interest.
8. If the user hands over its claim against the buyer for extrajudicial or judicial collection, all resulting costs will be for the account of the buyer, see point 14, without prejudice to the user's rights set out in point 11.3.
Article 12 Retention of title
1. All goods delivered by user, including any designs, sketches, drawings, films, software, (electronic) files, etc., shall remain user's property until buyer has fulfilled all subsequent obligations under all agreements concluded with user.
2. The buyer is not authorised to pledge the goods falling under the retention of title nor to encumber them in any other way.
3. If third parties seize goods delivered subject to retention of title or wish to establish or assert rights to them, buyer shall be obliged to inform user thereof as soon as can reasonably be expected.
4. The buyer undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection upon first request.
5. Goods delivered by user, which are subject to retention of title pursuant to the provisions under 1. of this article, may only be resold within the framework of normal business operations and may never be used as a means of payment.
6. In the event that user wishes to exercise his property rights indicated in this article, buyer hereby grants unconditional and irrevocable permission to user or third parties to be appointed by user to enter all those places where user's property is located and to take back those goods.
Article 13 Warranty
1. User guarantees that the goods to be delivered meet the usual requirements and standards that can be set for them and are free of any defects whatsoever.
2. The guarantee mentioned under 1. shall also apply if the goods to be delivered are intended for use abroad and if the buyer explicitly notified user of this use in writing at the time the agreement was entered into.
3. If no maintenance contract has been concluded, the guarantee referred to under 1. shall apply for a period of 12 months after delivery. Should a longer period be imposed by operation of law, buyer must submit the article covered by the guarantee for inspection to user or a body designated by user at least once a year.
4. If the goods to be delivered do not comply with these guarantees, user shall replace the goods within a reasonable period of time after receipt thereof or, if return is not reasonably possible, written notice of the defect by buyer, at user's discretion, or take care of repair. In the event of replacement, the buyer undertakes to return the replaced item to the user now and to transfer ownership to the user.
5. The guarantee mentioned in this respect does not apply:
- if the defect has arisen as a result of injudicious or improper use or if, without the user's written consent, the buyer or third parties have made changes or attempted to make changes to the item or have used it for purposes for which the item is not intended.
- when the decisive guarantee conditions have not been met.
- when not in accordance with the instructions for use and/or leaflet. If an instruction manual/instruction leaflet is not available, the product must not be used.
- if no purchase invoice can be submitted.
- if the serial plate or guarantee seal has been removed.
- if invoices not relating to the product have been paid.
- on wearing parts and on filters.
6. If the guarantee provided by the user concerns an item produced by a third party, the guarantee is limited to that provided by the producer of the item.
Article 14 Collection costs
1. If the buyer is in default or in default of compliance with one or more of his obligations, all reasonable costs incurred to obtain extrajudicial satisfaction shall be borne by the buyer. If the buyer remains in default of payment of a sum of money on time, he forfeits an immediately payable penalty of 15% on the amount still due. This with a minimum of € 50.00. In any case, the buyer will owe collection costs in the event of a pecuniary claim. The collection costs shall be calculated in accordance with the methods generally recognised in Dutch case law in collection cases.
2. If user has incurred higher costs, which were reasonably necessary, these shall also qualify for reimbursement.
3. Any reasonable judicial and enforcement costs incurred shall also be borne by the buyer.
4. The buyer shall owe interest on the collection costs incurred.
Article 15 Suspension and dissolution
1. User is entitled to suspend the delivery or to dissolve the agreement, if:
- the buyer does not or not fully comply with the obligations arising from the agreement.
- circumstances which come to the user's knowledge after the conclusion of the agreement give him good reason to fear that the buyer will not fulfil his obligations. If there are good grounds to fear that the buyer will only partially or not properly fulfil his obligations, suspension shall only be permitted insofar as the shortcoming justifies it.
- at the time of concluding the agreement, the buyer was requested to provide security for the fulfilment of his obligations under the agreement and this security is not provided or is insufficient. As soon as security has been provided, the power of suspension lapses, unless this payment has been unreasonably delayed as a result.
2. User shall furthermore be authorised to dissolve the agreement (or have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the agreement is impossible or can no longer be demanded in accordance with standards of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be reasonably expected.
3. If the agreement is dissolved, the user's claims against the buyer shall become immediately due and payable. If the user suspends fulfilment of his obligations, he shall retain his claims under the law and the agreement.
4. User shall at all times retain the right to claim damages.
Article 16 Return of goods made available
1. If user has put goods at buyer's disposal during the execution of the agreement, buyer shall be held to return the goods thus delivered within 14 days in their original state, free of defects and in their entirety. If the buyer fails to fulfil this obligation, all costs arising from this shall be at his expense.
2. If buyer, for whatever reason, after having been warned to do so, still remains in default with the obligation mentioned under 1., user shall be entitled to recover the resulting damage and costs, including replacement costs, from buyer.
Article 17 Liability
1. If goods delivered by user are faulty, user's liability towards buyer shall be limited to that which is arranged in these terms and conditions under "Guarantees".
2. If user is liable for direct damage, such liability shall be limited to a maximum of twice the amount of the statement of expenses, at least that part of the agreement to which the liability relates. The liability shall at all times be limited to a maximum of the amount of the payment to be made by the user's insurer in the occurring event.
3. Direct damage shall be understood exclusively:
- the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions;
- any reasonable costs incurred to ensure that user's defective performance complies with the agreement, unless such defective performance cannot be attributed to user;
- any reasonable costs incurred to prevent or limit the damage, insofar as the buyer demonstrates that these costs have led to the limitation of direct damage within the meaning of these general terms and conditions.
4. User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
5. The limitations of liability for direct damage contained in these terms and conditions do not apply if the damage is due to intent or gross negligence on the part of the user or his subordinates.
6. As applications of delivered goods are beyond the control of the user, no accountability/liability can be accepted for results and/or consequences. User is never liable for the ultimate suitability of delivered goods for each individual application by the buyer, nor for any advice regarding storage, transport, use or application. The advice provided by the user is only indicative. At all times the purchaser must test the intended application and results for actual suitability before putting the goods into use.
Article 18 Transfer of risk
1. The risk of loss of or damage to the products that are the subject of the agreement shall pass to the buyer at the moment at which they are legally and/or factually delivered to the buyer and are therefore brought under the control of the buyer or of a third party to be appointed by the buyer.
Article 19 Force majeure
1. Parties shall not be obliged to fulfil any obligation if they are hindered to do so as a result of a circumstance for which they are not to blame and for which they are not responsible by virtue of the law, a legal act or generally accepted practice.
2. In these general terms and conditions, force majeure shall be understood to mean, in addition to what is understood in this respect by law and case law, all external causes, foreseen or unforeseen, over which the user cannot exercise any influence, but which prevent the user from fulfilling his obligations. This includes strikes in the user's company.
3. User shall also be entitled to invoke force majeure if the circumstance preventing (further) fulfilment occurs after the user should have fulfilled his obligation.
Article 20 Safeguards
1. The buyer indemnifies the user against claims by third parties relating to intellectual property rights on materials or data provided by the buyer, which are used in the execution of the agreement.
2. If the buyer provides user with information carriers, electronic files or software etc., the latter shall guarantee that the information carriers, electronic files or software are free of viruses and defects.
Article 21 Intellectual property and copyrights
1. Without prejudice to the other provisions of these general terms and conditions, the user retains the rights and powers vested in him by virtue of the Copyright Act.
2. The buyer shall not be permitted to make any changes to the goods, unless the nature of the delivered goods dictates otherwise or unless otherwise agreed in writing.
3. Any designs, sketches, drawings, films, software and other materials or (electronic) files made by the user within the framework of the agreement shall remain the property of the user, irrespective of whether they have been made available to the buyer or to third parties, unless agreed otherwise.
4. All documents provided by user, such as designs, sketches, drawings, films, software, (electronic) files, etc., are exclusively intended to be used by buyer and may not be reproduced, made public or brought to the attention of third parties without user's prior consent, unless the nature of the documents provided dictates otherwise.
5. User reserves the right to use any knowledge gained through the execution of the work for other purposes, insofar as no confidential information is brought to the knowledge of third parties.
4. The parties may suspend the obligations arising from the agreement during the period that the force majeure continues. If this period lasts longer than two months, either of the parties shall be entitled to dissolve the agreement, without any obligation to compensate the other party for damages.
5. Insofar user has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, user shall be entitled to invoice the part already fulfilled or still to be fulfilled respectively. The buyer shall be held to pay this invoice as if it were a separate agreement.
Article 22 Confidentiality
1. Both parties are obliged to maintain the confidentiality of all confidential information obtained from each other or from any other source in the context of their agreement. Information shall be considered confidential if this has been communicated by one of the parties or if this arises from the nature of the information.
2. If, on the grounds of a statutory provision or a judicial decision, user is obliged to provide confidential information to third parties designated by law or by the competent court, and user cannot in this respect invoke a right to refuse to give evidence recognised or permitted by law or by the competent court, user shall not be obliged to pay damages or compensation and the other party shall not be entitled to dissolve the agreement on the grounds of any damage resulting from this.
Article 23 Non-acquisition of personnel
1. During the term of the agreement as well as one year after termination thereof, the buyer shall not in any way, except after proper business consultation in this matter has taken place with the user, employ employees of the user or of companies which the user has called upon for the execution of this agreement and which are or have been involved in the execution of the agreement, or otherwise, directly or indirectly, have them work for him.
Article 24 Disputes
1. The parties shall only appeal to the court after they have made every effort to settle a dispute by mutual agreement.
1.1) In case of disputes, resulting from this agreement or from agreements building upon it, the parties will first try to solve them by means of Mediation in accordance with the rules of the St. Nederlands Mediation Instituut in Rotterdam, as it reads on the commencement date of the mediation.
1.2) If it has turned out to be impossible to solve a dispute as referred to above by means of Mediation, that dispute shall be settled by the competent court in Arnhem unless the subdistrict court is competent. Nevertheless, user has the right to submit the dispute to the competent court according to the law.
Article 25 Applicable law
1. Any agreement between the user and the buyer shall be governed by Dutch law. The Vienna Convention on Contracts for the International Sale of Goods is expressly excluded.
Article 26 Amendment, explanation and location of the terms and conditions
1. These terms and conditions have been filed at the office of the Chamber of Commerce in Arnhem, the Netherlands, registered under number 09070507.
2. In the event of an interpretation of the contents and purport of these general terms and conditions, the Dutch text shall always prevail.
3. The most recently filed version or the version valid at the time of the conclusion of the agreement shall always apply.
