General delivery and payment conditions for the sale of goods and the provision of services of DWTN, hereinafter to be referred to as "supplier", established in (5591 RA) Heeze, at De Boelakkers 6, filed with the Chamber of Commerce in Eindhoven on 26 -10-2006 and known there under number 17157059.
Article 1. General
These general terms of delivery and payment for the sale of goods and the provision of services are part of and apply to all offers and quotations of and all agreements to deliver goods and the provision of services by the supplier, unless the supplier has written confirmed that its general conditions do not apply to the offers and quotations of and / or agreements with it.
The term "counterparty" in these general terms and conditions shall mean any (legal) person who has entered into or wishes to enter into an agreement with the supplier and in addition to these, his representative (s), authorized person (s) and legal successor (s) under general and special title.
The applicability of the general terms and conditions used by the counterparty or possible buyers of the counterparty or third parties is explicitly excluded.
By merely placing an order / order and / or receiving the goods delivered, the other party accepts these conditions and is deemed to have tacitly agreed to the exclusive applicability of these terms and conditions, also in the case of any further oral, telephone or other , by fax or by e-mail or otherwise specified orders, regardless of a written confirmation from the supplier.
Verbal agreements and / or commitments by employees of the supplier, insofar as these deviate from these conditions, only bind the supplier, if these commitments have been confirmed in writing by the supplier.
Insofar as an article or part of an article is null and void or declared null and void, the relevant provision will be replaced by an article whose scope largely corresponds to the null article within the margins of reasonableness and fairness.
The Dutch text of these conditions is binding. Insofar as one or more articles or parts of articles of these general terms and conditions would be invalid or destroyed, this does not affect the legality of the other articles and parts of articles.
Article 2. Offers
All offers made by the Supplier remain valid for the period explicitly indicated by the Supplier. Insofar as no term for acceptance is stated, each offer made by the supplier, quotation, advice and / or price quotation is without obligation.
All data in price lists, procedures and the like provided by the supplier are specified as accurately as possible. These data are only binding for the supplier if this has been expressly confirmed in writing.
If no agreement for the delivery of goods or the provision of services is concluded with the supplier, the other party must return the designs, images and drawings of the supplier to the supplier within fourteen days after the date of the decision, at the expense of the other party.
The Supplier reserves the right, if the assignment for the delivery of goods or the provision of services is not awarded to it, all costs in respect of the provision of the offer including all costs incurred by third parties on behalf of the Supplier to the Other Party. account.
Transmission of offers and / or (other) documentation does not oblige the supplier to deliver goods or provide services, unless the offer is accepted by the other party within the specified period.
The Supplier reserves the right to refuse orders without stating reasons, unless the assignment was given on the basis of an offer accepted by the Other Party within the specified period.
Article 3. Agreement
In principle, an agreement with the supplier is established after the supplier has laid down the agreement in writing or after the supplier has explicitly accepted or confirmed the agreement in writing or, at the choice of the supplier, otherwise. The order confirmation is deemed to represent the agreement correctly and completely, unless the other party objects to this within 8 days of the date. The aforementioned manner of concluding agreements also applies to any additional agreements and / or changes to the agreement.
For work for which, due to the nature and scope, a quotation or an order confirmation is unusual, the invoice is also regarded as an order confirmation, which is also deemed to accurately and completely reflect the agreement. With regard to the provisions in Article 3.1. and 3.2. the administration of supplier is decisive, subject to written evidence to the contrary.
Each agreement with the supplier is entered into under the resolutive condition that the other party - only at the discretion of the supplier - is sufficiently creditworthy for the financial fulfillment of the agreement.
If there is reason to do so, the Supplier is entitled to require (further) security both upon and after the conclusion of the agreement, failing which the Supplier is entitled to suspend the fulfillment of its obligations until sufficient security has been provided.
For the execution of the agreement, the supplier is entitled to call in third parties, if this is desirable.
Article 4. Intellectual property rights
The Supplier retains the intellectual property rights (such as, but not limited to, copyrights, patent rights, registered design rights, database rights and trademark rights) on all offers or drafts, sketches, illustrations, drawings, molds and models that it has issued.
Without the prior written consent of the supplier, the products for this purpose may not be reproduced, copied or shown to third parties by the other party, irrespective of whether the supplier has charged costs to the other party for the realization of these products.
Article 5. Prices
Unless otherwise stated, all quotations are subject to price changes.
Unless otherwise stated, the prices are from supplier
based on the purchase prices of goods and raw materials, wages, government levies or similar bodies and costs of third parties applicable at the time of the quotation or order date;
for the delivery of goods based on delivery from company / warehouse of supplier or other warehouse or ex works in the country of production and with regard to the delivery of services from the agreed place where the services are provided;
exclusive of VAT;
excluding the costs of packaging, loading and unloading, transport, insurance
and / or the surcharge for small orders;
stated in the agreed currency;
In the event of an increase of the costs and / or levies as stated under 5.2., Including a change in the currency in which these costs are set in relation to the currency in which the quotation was made, the supplier is entitled to increase the order price accordingly, a and others with due observance of any existing statutory regulations.
Article 6. Delivery and delivery time of goods and services
The specified delivery times are approximate and are not binding. The supplier is not liable for exceeding the delivery time.
Unless otherwise agreed in writing, the delivery of goods takes place at company / warehouse supplier or another warehouse or ex works in the country of production, insofar as the supplier orders the products in another country. The risk of the goods passes to the other party at the moment that the goods leave the company or the warehouse of the supplier or another warehouse or factory in the country of production, without prejudice to the provisions in Article 8.2. Delivery will only take place if and insofar as this is stated by the supplier on the order confirmation or otherwise.
The delivery time is based on the working conditions applicable at the time of conclusion of the agreement and on timely delivery of the goods to be delivered by third parties for performance of the agreement. Without prejudice to the provisions elsewhere in these terms and conditions with regard to the delivery, the delivery time of the supplier shall be extended by the duration of the delays on the part of the other party as a result of the non-fulfillment by the other party of obligations arising from the present or previously concluded agreements.
The other party is obliged to check the delivered goods or the packaging immediately upon delivery or for any shortages or visible damage, or to carry out this inspection after notification from the supplier that the items are at the disposal of the other party.
Possible shortages or damage of the delivered goods and / or the packaging which are present at delivery / delivery must the counterpart on the delivery note, the invoice and / or transport documents to mention, failing which complaints in this regard no longer in treatment. The administration of supplier is decisive in this respect.
Supplier is entitled to deliver the items in parts. Partial deliveries which the supplier can invoice separately, the other party is obliged to pay in accordance with what is stipulated in article 14 "payment".
Exceeding the delivery time does not oblige the supplier to pay any compensation. After repeated exceeding of the delivery period, the other party can declare the supplier in default in writing, stating a final (reasonable) term of delivery. After this the other party has the right to cancel the agreement in writing, unless the supplier is in a situation of force majeure.
If the goods have not been collected by the other party after the expiry of the delivery period, they will be locked up at his disposal, at his expense and risk. After a period of four weeks the supplier is entitled to (private) sale of these items. Any lesser proceeds and the costs are at the expense of the other party, without prejudice to the other rights of the supplier.
With regard to the provision of services, whether or not in combination with the delivery of goods, the delivery time is regarded as the moment:
on which the supplier has informed the counterparty that the services (performed work) have been performed, or
where the other party has accepted the services / work of the supplier after the agreed inspection / testing, or fails to do the inspection / testing within eight days after the supplier's notification as stated under 6.9.a. to (have) carried out.
In any case, the moment of delivery shall be the moment at which the project or the goods on behalf of which the services / activities were carried out have (partially) been taken into use by the other party.
Small, non-essential defects are repaired by the supplier as soon as possible and can not be a reason for the other party to refuse delivery / completion.
Unless the supplier obtains an explicit instruction from the other party for this purpose, the other party shall ensure that the requisite requests are made in good time and / or that the due is paid in respect of supply lines, connections, precariance rights, the Nuisance Act, etc.
If a test as stated in article 6.9.b. If this is agreed, this must take place within the valid eight-day period in the presence of (an employee of) supplier or of a third party appointed by the supplier.
Article 7. Extra and less work
The scope of the work to be performed / services to be performed is accurately recorded in the agreement / order confirmation, which is binding for the parties (see article 3.1.).
All necessary additional work, provisions and / or (auxiliary) materials of whatever nature which are not specified in advance in the order confirmation do not belong to the obligations of the supplier. The other party is obliged to take care of this at the supplier's first request, so that the work does not suffer undue delay.
If the other party does not meet his obligations as stated in Article 7.2. the supplier himself is entitled to take care of all liability for this. The costs thereof are at the expense of the other party. In the event that the other party does not strictly comply with its payment obligations towards the supplier, the supplier shall be entitled to immediately suspend or cease all deliveries / work without prejudice to all other rights of the supplier in this respect on the basis of these conditions (for example pursuant to article 14).
Changes in the assignment, originating from the other party or caused by changes in circumstances, as a result of which the original agreement can no longer be (fully) enforced as additional or less work carried out and passed on, all within the limits of reasonableness and fairness.
If the additional work and less work deviates by more than 10% from the original price, the parties will consult on the measures to be taken. In the event of cancellation by the other party, the supplier is entitled to invoice the costs incurred or the goods delivered and / or the services provided up to that time.
Article 8. Transport and risk
If the other party does not give specific instructions, the transport, shipment and / or packaging will be provided by the supplier to the best of its knowledge and ability, without the supplier being liable or accepting any liability for this. The specific wishes of the other party concerning (express, courier, air etc.) will only be carried out if and after the other party declares that it will bear the additional costs.
In principle, the transport of the goods always takes place at the expense and risk of the other party, even if the carrier demands that there be a clause on bills of lading, transport addresses and suchlike that all transport damage is and remains for the account and risk of the sender. All this insofar as any transport damage is not covered under any transport and insurance conditions that may be taken out by the supplier on request.
In the case of carriage paid deliveries, the transport costs are not passed on separately. If the supplier delivers on the basis of carriage paid freight on invoice, the freight costs are indicated separately on the invoice.
Article 9. Force majeure
Force majeure means: each of the will of the parties independent, or any unforeseeable circumstance as a result of which fulfillment of the agreement is no longer reasonably possible or can no longer reasonably be demanded of the supplier by the other party.
Force majeure includes: strike, excessive absenteeism of the supplier's employees, transport barriers, fire, government measures including but not limited to import and export bans, quota duties and business failures at supplier or at its suppliers, as well as shortcomings to supplier by its suppliers, as a result of which the supplier can no longer fulfill obligations towards its counterparties, lack of raw materials, failures in the supply of energy and water damage.
If a situation of force majeure arises, the supplier is entitled to suspend the execution of the agreement or to dissolve the agreement definitively. However, prior consultations will be held with the other party.
Supplier is entitled to demand payment of (partial) deliveries for goods or the provision of services that have already been carried out until the moment of the force majeure situation.
Supplier has the right to invoke force majeure if the circumstance that causes force majeure occurs during the period of delivery overrun as described in article 6.7 ..
Article 10. Liability
Supplier accepts legal obligations to pay compensation insofar as this appears from this article.
If the supplier attributably fails to comply with one or more obligation (s) from the agreement, the other party will give the supplier proper and motivated notice of default, giving the supplier a reasonable period of time to fulfill its obligation (s).
If, even after notice of default, the supplier fails attributably to fulfill its obligations under the previous paragraph, it shall be liable to the other party for damage, which is a direct and exclusive consequence of the shortcoming (s) concerned, with the proviso that the amount that the supplier will reimburse such damage, per event or series of related events is limited to a maximum of the amount that the other party has paid for the goods or services in respect of which the supplier has failed. The total liability of the supplier under the agreement is also limited to an amount of EUR 10,000.00, unless and insofar as the damage is covered by suppliers liability insurance and that insurance entitles a higher amount.
The supplier's liability for pure capital loss, such as loss of profit, damage resulting from business interruption and damage as a result of liability towards third parties, is excluded.
Article 11. Advices / guarantee
All oral and written advice will be provided by the supplier to the best of its knowledge and ability, without guaranteeing a certain result as intended by the other party, unless otherwise agreed in writing.
Warranty for goods purchased elsewhere by the supplier is only given if and insofar as the manufacturer / supplier in question provides a guarantee.
Failure by the other party to fulfill one of its obligations releases supplier from all its warranty obligations.
Warranty never includes the work wages and the travel and accommodation costs or other additional costs. Such costs are at the expense of the other party.
Article 12. Complaints
Without prejudice to the provisions elsewhere in these conditions, all complaints must be submitted in writing to the supplier within eight days of the time of delivery or completion, stating precisely the nature and basis of the complaints. An advertising period of eight days after date applies to invoices.
The term of three months applies to complaints about hidden defects, whereas such complaints must be submitted within eight days after discovery.
After the expiry of the terms as stated in articles 12.1. and 12.2. the other party shall be deemed to have approved the delivered item or the service provided or the invoice. Complaints made after the terms mentioned in articles 12.1 and 12.2 have expired, will no longer be processed by the supplier.
Submitting an advertisement never releases the other party from its payment obligations towards the supplier.
Return of the goods delivered can only take place with the prior written consent of the supplier under conditions to be determined by the supplier.
Article 13. (Extended) Retention of title / non-possessory lien
13.1. As long as the other party has not paid the fully agreed price, the supplier retains ownership of the goods to be delivered. Insofar as an agreement consists of the delivery of goods on the one hand and the provision of services on the other hand, the supplier reserves the right of ownership in the goods until the time at which both the price for the delivered goods and for the services rendered have been paid. The Supplier furthermore retains title to the goods to be delivered in connection with an agreement relating to a shortcoming in the fulfillment of the obligation by the Other Party under the agreement, including not limited to claims for compensation and interest.
As long as the property has not been transferred, the other party can not provide any security or other rights to third parties in respect of the goods on which the retention of title is based.
As long as the ownership of the goods sold by the supplier has not yet been transferred to the other party, the other party is obliged to store the items with the necessary care in secession. As long as the property has not yet transferred to the other party, the latter is obliged to insure the goods against damage. At the supplier's first request, the other party is obliged to provide the policy for inspection to the supplier.
In so far as a third party seizes goods for which the property has not yet transferred to the other party, the other party shall immediately inform the supplier of the seizure. The other party is liable for all costs that the supplier must make to insure her property.
If the other party does not strictly comply with its payments / obligations towards the supplier, the supplier shall at all times be entitled to retrieve the goods that are still present at the other party and / or service holders. The other party must provide full cooperation for this purpose.
Insofar as the property has passed on delivered goods to the other party and the other party on other grounds than the circumstances stated in article 13.1. a debt to the supplier, the other party is obliged to cooperate at the first written request of the supplier to the establishment of a (silent) pledge on goods delivered by the supplier of which the ownership has transferred to the other party.
In the event of unauthorized resale by the counterparty of goods on which the proprietor's retention of title is wholly or partially vested, the counterparty shall now forfeit it at any time, or at least the other party shall be obliged to submit claims arising from this resale to the buyer of the counterparty on first written request from the supplier. supplier. The other party is obliged to pass on the relevant data to the supplier at the first request so that the supplier can collect the amount due directly from a second buyer. The amount paid by the buyer from the other party to the supplier shall be deducted from the total amount owed by the other party to the supplier. The other party is also obliged to make a retention of title for unauthorized resale for the benefit of itself in the relationship between the supplier and the other party.
In the event that the other party, within the framework of the article stipulated in the article, has to provide the cooperation required by the supplier, this will take place under penalty of a non-privileged moderation of € 1,000.00 per day or part of the day that the other party hereby is / remains in default and insofar as the supplier refers to this part of the article when requesting cooperation.
Article 14. Payment
Payment must take place, without any deduction, discount, suspension or setoff, net cash at delivery or completion by means of payment or transfer to a bank or postbank account to be designated by the supplier.
If no payment term is stated, a payment term of 30 days after the invoice date applies. The value date stated on the bank or postbank statements is decisive for the payment day. Supplier is at all times entitled to demand that payment is made in advance. Furthermore, the supplier is entitled to suspend delivery and shipment of sold goods until the other party has provided sufficient security for payment to the supplier.
The Supplier is entitled, but not obliged, to record a payment schedule for the items to be delivered and / or the services to be provided in the order confirmation / agreement.
Each payment from the other party shall in the first instance provide for payment of the interest owed as well as the collection costs and / or administrative costs incurred by the supplier and shall subsequently be deducted from the oldest outstanding invoice or claim.
To the extent that the other party:
in suspension of payments or in bankruptcy, or has submitted a request for this, or has filed a request under the WSNP or proceeds with the estate or if attachment (part of) his property or claims is made or;
dies or is placed under guardianship or terminates his business or;
does not comply with any obligation arising from the law or from these terms and conditions;
fails to pay an invoice amount or part thereof within the stipulated period or;
proceeds to cessation or transfer of his business or an important part thereof, including the contribution of his company to an existing or existing company or changes to the objectives of his company.
In the event that one or more of the aforementioned circumstances occurs, everything that the other party owes to the supplier for whatever reason is due and payable in full at once, without any prior notice of default or warning being required, at which time the supplier is also dismissed. of her then existing (delivery) delivery obligations towards the other party, all without prejudice to the other rights of the supplier or compensation of costs, damage and interest.
From the moment that the amount owed to the supplier becomes due and payable, the supplier is entitled to terminate the agreement without any prior notice of default or legal intervention being required. All proprietary rights of the supplier remain fully maintained or revive in full so that the supplier is entitled to retrieve the items in question in accordance with the provisions of article 13 "retention of title".
Article 15. Interest and costs
If the payment has not been made within the period specified in article 14, the other party will be in default by operation of law and an interest of 1% per (part of) month (or the statutory interest if this is higher) ) due on the then outstanding amount including VAT.
In the case of export transactions, an interest is calculated which is at least equal to the highest commercial (credit) interest rate calculated by the commercial banks in the country in which the other party is located.
all legal and extrajudicial costs to be incurred are at the expense of the other party. The extrajudicial collection costs are at least 15% calculated over the total amount owed by the other party, including the amount under 15.1. listed interest with a minimum of € 300, -.
Article 16. Applicable law
On all offers of and agreements with supplier and its implementation, to the exclusion of the law of other states, Dutch law applies, with the exclusion of the uniform law on the international purchase of movable tangible property (law of 15 December 1971). , S780 S781).
As far as the interpretation of international trade terms is concerned, insofar as these conditions apply, the "incoterms" as compiled by the International Chamber of Commerce in Paris (ICC) are applicable.
Article 17. Disputes
All disputes between parties will be settled by the district court in 's-Hertogenbosch unless a dispute falls within the jurisdiction of the district court. To the extent that a dispute is part of the competence of the District Court, the Subdistrict Court is competent in accordance with the rules of the Dutch Code of Civil Procedure.
The Supplier also has the right to submit a dispute to a court other than the judge competent according to the normal competency rules to have the dispute settled by means of arbitration or binding advice.