General terms and conditions of sale and delivery
Of: Elka Pieterman Holland B.V.
Elka Pieterman Holland B. V. is registered in the Trade Register of the Chamber of Commerce under number 20024218. Elka Pieterman Holland B. V. has its corporate seat in Breda, the Netherlands.
Article 1 Definitions
Seller: Elka Pieterman Holland B.V., the user of the general terms and conditions of sale and delivery (in short: terms and conditions);
Buyer: the other party to the agreement, the customer;
Agreement: the agreement between the seller and the buyer;
In writing: by letter, fax or electronically.
Article 2 General provisions
2.1 The provisions of these general terms and conditions of sale and delivery apply to all offers and agreements between the seller and the buyer by which the seller undertakes to deliver goods to the buyer. Deviations from these general terms and conditions are only valid if expressly confirmed by the seller in writing;
2.2 These terms and conditions are also applicable to all agreements with the seller, for the execution of which the seller makes use of the services of third parties;
2.3 The applicability of the seller’s general terms and conditions or other general terms and conditions are expressly excluded, unless the parties have agreed otherwise in writing;
2.4 If the seller enters into subsequent agreements with the buyer, these general terms and conditions apply with respect to all subsequent agreements, regardless of whether or not these are explicitly declared applicable;
2.5 If one or more provisions of these general terms and conditions are invalid or are rescinded, the remaining provisions of these general terms and conditions remain applicable.
Article 3 Offers/Formation of agreement/Prices
3.1 All offers, in whatever form, are without obligation, even if the offer contains a deadline for acceptance;
3.2 If a natural person concludes an agreement on behalf of or for the account of another natural person, by signing the order form/order he declares that he is authorised to do this. Besides the other natural person, this person is jointly and severally liable for all obligations arising from the agreement;
3.3 Agreements to which the seller is a party will only be considered binding after the seller has confirmed the buyer's order;
3.4 In the case of verbal agreements, the invoice is deemed to accurately and completely reflect the agreement, unless a complaint is made within 8 days of the invoice date;
3.5 The agreement is always entered into subject to the suspensive conditions that, from the information obtained by the seller, in the seller’s opinion the buyer has sufficient creditworthiness and/or a credit insurance with respect to the buyer can be concluded;
3.6 The prices in the offers/catalogues/price lists of the seller are based on ex works, Breda, the Netherlands (EXW, Incoterms 2010); are stated in euros; are exclusive of VAT and government levies; are exclusive of packaging and administrative expenses; unless otherwise expressly agreed in writing;
3.7 Any discounts can be only agreed in writing;
3.8 The seller is entitled, after the agreement has been concluded, to reasonably adjust the price or terminate the agreement if circumstances occur that justify this. The above-mentioned circumstances include, but is not confined to, increases in raw material prices, production costs, duties, taxes, currency changes, inflation, etc.;
3.9 The seller is entitled to additionally charge the costs for sustainable packaging materials. These costs will be credited by the seller if the packaging is returned by the buyer intact at the expense and risk of the buyer;
3.10 The seller is entitled to charge the buyer for the declared order costs and costs relating to special orders;
3.11 The seller may refuse an order or part of an order, or may attach conditions to an order without giving reasons.
Article 4 Delivery
4.1 Terms of delivery are agreed per transaction. All terms of delivery apply in accordance with Incoterms 2010;
4.2 The seller is at all times entitled to stipulate full or partial payment in advance. Delivery to the buyer will take place upon receipt of the payment by the seller, unless the parties have agreed otherwise in writing;
4.3 The buyer is obliged take-up the goods at the time that the seller delivers them or has them delivered to him, or at the time when they are made available to him in accordance with the agreement;
4.4 If the buyer refuses to take-up or is negligent in providing information or instructions that are necessary for the delivery, the seller is entitled to store the goods at the expense and risk of the buyer. If the buyer does not take-up the goods within two months, the seller is entitled to sell the goods to another party. If this is not possible, the seller is entitled to destroy the goods. The costs incurred and damages suffered by the seller in the case of resale (including any reduced income) or destruction are for the account of the buyer;
4.5 If delivery is subject to cash on delivery, the seller will always charge the cash on delivery charges to the buyer;
4.6 If the seller has specified a term of delivery, this is indicative. A specified delivery period is never a deadline. When a term is exceeded, the buyer shall send the seller written notice of default and grant him a reasonable period of time for corrective measures;
4.7 The buyer is only entitled to terminate the agreement in case of excessive failure (more than 8 weeks) of the agreed delivery period, unless this is caused by force majeure. However, the buyer can never claim any penalty or compensation;
4.8 The seller is entitled to deliver the goods in portions. The seller is entitled to invoice partial deliveries separately;
4.9 A delivery period will be determined per transaction. The delivery period commences when the relevant agreement has been concluded in accordance with the provisions of Article 3 and the seller has also accepted any agreed payment security and/or any agreed advance payment has been received and the necessary conditions for the implementation of the order have been fulfilled, including receipt by the seller of the necessary information from the buyer;
4.10 Failure by the buyer to comply (on time) with any payment obligation, shall suspend the seller’s delivery obligation.
Article 5 Models/illustrations
5.1 The models, illustrations, figures, sizes, weights or descriptions included in the catalogues/offer/advertisements/price lists are shown only as an indication;
5.2 If a sample is shown to the buyer, it is only presumed to be an indication, unless it is agreed in writing that the goods to be delivered will correspond entirely with the sample;
5.3 The samples sent by the seller at the request of the buyer cannot be returned. The seller charges the buyer the full catalogue vallue for the samples, unless the parties have agreed otherwise in writing.
Article 6 Inspection, complaints
6.1 The buyer is obliged to inspect the goods at the time of supply or delivery. The buyer must also examine whether the quality and quantity of the delivered goods is in accordance with what was agreed. Defects, abnormalities and shortcomings must be reported to the seller by endorsement on the consignment note or packing slip within 24 hours of delivery by fax or email (scan), otherwise the goods will be deemed to have been delivered in good condition;
6.2 Complaints about the invoice must be made within eight days of the invoice date;
6.3 After the expiry of the complaints period, the buyer is deemed to have approved of the goods or the invoice;
6.4 If a complaint is made timely in accordance with the previous paragraphs, the buyer remains obliged to purchase and to pay for the purchased goods. If the buyer wishes to return defective goods, this will be done with the prior written consent of the seller and in the manner specified by the seller;
6.5 Special orders cannot be returned and credited since the seller can never return these goods to the supplier or make a claim for them;
6.6 The following situations can never give rise to complaint:
- deviations in colour, weight and size of less than 10%;
- misprints, printing errors or typographical errors in the catalogue/offer/price list;
- interim price changes.
6.7 If a complaint is justified in the opinion of the seller, the seller will replace the delivered goods, unless this has become demonstrably pointless for the buyer. The latter must be made known by the buyer in writing. If replacement is demonstrably pointless, the seller will take back the goods and credit the buyer for the relevant invoice amount. Under no circumstance is the seller obliged to reimburse other costs and/or loss. However, the seller is in all cases only liable within the limits of the provisions in the article on ‘Liability’;
6.8 The payment obligation of the buyer is suspended until such time as the complaint has been settled, only if and insofar as the complaint is considered to be well-founded by the seller.
Article 7 Payment
7.1 Payment must be made in cash or by direct debit without any discount, suspension or settlement, or by means of advance (partial) payment or, if the parties have agreed this, within 30 days of the invoice date in a manner specified by the seller in euros, unless the parties have agreed otherwise in writing. Objections to the invoice amounts does not suspend the payment obligation;
7.2 If the buyer fails to pay within the agreed period, the buyer is in default by operation of law. The buyer shall then owe interest of 1.5% per month or part thereof, unless the statutory interest rate for commercial transactions is higher, in which case the higher rate applies. The interest on the amount due will be calculated from the time that the buyer is in default until the time of payment of the full amount;
7.3 Claims by the seller against the buyer are immediately due and payable in the case of liquidation, (application for) bankruptcy, receivership of the buyer, death of the buyer, transfer or cessation of the buyer’s company, seizure or (provisional) suspension of payment of the buyer;
7.4 The seller is entitled to charge a credit limitation surcharge of 2%, which may be deducted in the case of payment within 30 days of the invoice date;
7.5 Payment must be made to the seller unless the seller has transferred or has pledged its claim against the buyer to a third party. If this is the case, the seller will inform the buyer in writing that it is free to pay to the third party;
7.6 Payments will first of all serve to reduce the costs, subsequently to reduce the interest still outstanding and finally to reduce the oldest outstanding and payable invoices and the accrued interest;
7.7 Regardless of the agreed terms of payment, at the request of the seller, the buyer is obliged to provide security for payment, which is adequate in the opinion of the seller, during or after the conclusion of the agreement and before delivery.
Article 8 Collection costs
8.1 If the buyer is in default or fails to comply (on time) with its obligations, all reasonable costs incurred in obtaining payment out of court are for the account of the buyer. The collection costs are calculated in accordance with the collection rate recommended in collection cases by the Netherlands Bar Association, with a minimum of € 350.00 per claim;
8.2 If the seller has incurred higher costs, which were reasonably necessary, these are also eligible for reimbursement. Any reasonable judicial and execution costs incurred are also for the account of the buyer.
Article 9 Retention of title
9.1 All goods supplied by the seller remain the property of the seller until the buyer has complied with all payment obligations under all agreements concluded with the seller;
9.2 The buyer is not entitled to pledge, rent, resell to customers outside the EU or otherwise encumber the goods that are subject to retention of title;
9.3 If third parties seize delivered goods that are subject to retention of title or want to establish or exercise rights on them, the buyer is obliged to notify the seller as soon as possible;
9.4 The goods supplied by the seller, which are covered by retention of title by virtue of the first paragraph of this article, may only be resold within the framework of normal business activities and must never be used as a means of payment. The buyer is, however, not allowed to sell the goods within the framework of normal business activities when the buyer has applied for suspension of payments or the buyer has been declared bankrupt;
9.5 In the event that the seller wishes to exercise the proprietary rights as referred to in this article, the buyer now unconditionally and irrevocably gives permission to the seller or third parties designated by teh seller to enter all places where the property of the seller is located and to take back such goods;
9.6 The buyer must store the goods that are subject to retention of title separate from the other goods in order to be able to continue to distinguish the goods of the seller.
Article 10 Suspension and termination
10.1 The seller is entitled to suspend compliance with its obligations or to terminate the agreement without the need for a notice of default or judicial intervention, if:
- the buyer does not, not timely or not fully complies with its obligations by virtue of the agreement;
- after the conclusion of the agreement, the seller is informed of circumstances that give good reason to fear that the buyer will not, not timely or not completely comply with its obligations. If there is good reason to fear that the buyer will only partially or not properly comply with its obligations, suspension is only allowed insofar as this is justified by the shortcoming;
- the buyer is requested during or after the conclusion of the agreement to furnish security for its compliance with its obligations under the agreement and this security is not provided or is insufficient. As soon as security is furnished, the right to suspend is cancelled, unless such fulfullment is unreasonably delayed as a result;
10.2 The seller is also authorised to terminate the agreement if circumstances of such a nature arise that compliance with the agreement is impossible or, based on criteria of reasonableness and fairness, can no longer be required or if other circumstances arise of such a nature that unchanged maintenance of the agreement cannot reasonably be expected;
10.3 If the agreement is dissolved, the claims of the seller against the buyer are immediately due and payable. If the seller suspends compliance with the obligations, it retains its claims under the law and the agreement;
10.4 The seller always reserves the right to claim compensation.
Article 11 Cancellation
11.1 If, after an agreement with the seller has been established and before the seller has delivered to the buyer, the buyer wishes to cancel it in whole or in part, the buyer will be charged 10% of the agreed order price including VAT as cancellation costs. The buyer is also obliged to reimburse to the seller all costs reasonably incurred for the purpose of performing the order (including costs of preparation, storage, etc.) without prejudice to the seller’s right to full damages, including lost profits;
11.2 Cancellation must be made by registered letter;
11.3 If the buyer has already paid the order price to the seller, the order price less 10% will be repaid to the buyer;
11.4 Goods that cannot be delivered immediately will automatically be put on back order. If such goods cannot be supplied within two months, the buyer receives notification of this no later than two weeks after receipt of order. In this case, the buyer may cancel the order without charge. If the buyer has already paid the seller for the article, repayment will take place to the buyer;
11.5 Special orders cannot be cancelled since the seller can never return these goods to the supplier.
Article 12 Guarantee
12.1 The goods supplied by the seller meet the requirements and specifications specified by Dutch legislation;
12.2 Guarantee is limited to:
- manufacturing defects and therefore does not cover damage due to wear and improper, negligent or incompetent use, maintenance and assembly;
- deliveries to buyers within the EU;
- the guarantee given by the manufacturer;
- credit, repair or replacement of the goods;
- 6 months after delivery by the seller to the buyer unless otherwise agreed in writing.
12.3 Guarantee ends:
- if the goods are adapted, changed, assembled, modified or repaired by a third party;
- if the goods are used for a purpose other than that indicated in the instructions;
- if the operating instructions are not complied with.
12.4 Goods reduced in price are not covered by guarantee;
12.5 No guarantee is given on second-hand goods and odd lots;
12.6 As long as the buyer does not comply with its obligations arising from agreements concluded by the parties, it cannot invoke this guarantee condition;
12.7 If the seller replaces parts to comply with its guarantee obligation, the replaced parts become the property of the seller.
Article 13 Liability
13.1 Except in the case of intent or gross negligence by the seller and with the exception of civil liability under mandatory provisions, the seller is never liable for any loss incurred by the buyer. The seller is never liable for indirect damage, including consequential damage, lost profit, missed saving opportunities, damage as a result of business stagnation and environmental damage. Liability for damage resulting from liability to third parties is also expressly excluded.
13.2 If and insofar as the seller bears any liability, despite the provisions of article 13.1, for any reason whatsoever, liability is limited to the amount equal to the net invoice value of the goods in question. For the purposes of this article, a series of related harmful events applies as one event/claim.
13.3 The seller is never liable for the composition of the goods sold;
13.4 The buyer indemnifies the seller against any claims of third parties (including third-party claims for product liability) that suffer damage in connection with the implementation of the agreement, unless it is legally established that these claims are a direct result of gross negligence or intent on the part of the seller and, furthermore, the buyer has demonstrated that no blame whatsoever can be apportioned to it.
13.5 The seller is never liable for damages resulting from improper use of the goods, uses not in accordance with the instructions or other uses than for which the goods are intended;
13.6 The seller is never liable for damages arising from any advice given. Advice is always given on the basis of the facts and circumstances known to the seller and in mutual consultation, where the seller always takes the intention of the buyer as a guiding principle and starting point.
Article 14 Force Majeure
14.1 Parties are not obliged to comply with any obligation if they are impeded to comply as a result of a circumstance that is not due to gross negligence or intent on the part of the party invoking force majeure, nor a circumstances for their account in accordance with the law, a legal action or generally accepted practice;
14.2 In addition to what is included in the law and jurisprudence, force majeure in these general terms and conditions includes all external causes, foreseen or unforeseen, which the seller cannot influence, but as a result of which the seller is unable to comply with its obligations. This includes strikes in the company of the seller, postal strikes, traffic congestion, traffic jams, theft, fire, export restrictions, power failures and delays in deliveries by suppliers;
14.3 The seller is also entitled to invoke force majeure if the circumstance rendering (further) compliance occurs after the seller should have complied with its obligations;
14.4 Parties may suspend the obligations under the agreement during the period of force majeure. If this period lasts longer than two months, either party may terminate the agreement without any obligation to pay damages to the other party;
14.5 Insofar as the seller has partially complied with or cannot comply with its obligations under the agreement at the time of the force majeure, and an independent value accrues to the part complied with or to be complied with, the seller is entitled to separately invoice for the part already complied with or to be complied with. The buyer is obliged to pay this invoice as if it were a separate agreement.
Article 15 Intellectual property rights
15.1 All intellectual property rights in respect of goods supplied by the seller are held exclusively by seller or its suppliers. Without prejudice to the provisions in these general terms and conditions, the seller retains the rights of action and powers that accrue to the seller by virtue of the Dutch Copyright Act;
15.2 All brochures, catalogues, price lists, documents and other materials or (electronic) files provided by the seller remain the property of the seller, irrespective of whether they have been provided to the buyer or to third parties, unless otherwise agreed. These are only intended to be used by the buyer and may not be reproduced, made public or communicated to third parties by the buyer without the prior permission of the seller unless the nature of the documents dictates otherwise.
15.3 The buyer is not allowed to change the goods in whole or in part, or provide them with any other brand name, or use the brand in question in another manner or register it in their own name.
Article 16 Authentic version
16.1 Only the provisions of the Dutch language version of these terms and conditions are authentic. In the case of any discrepancy in the translation, the Dutch text will prevail.
Article 17 Disputes
17.1 The competent court in Breda (the Netherlands) has exclusive jurisdiction in disputes between the parties. Nevertheless, the seller is entitled to submit the dispute to the legally competent court.
17.2 Disputes between the seller and buyers based outside the EU will be finally settled by means of arbitration by one or more arbitrators appointed by the International Chamber of Commerce in accordance with the Rules of Arbitration of the International Chamber of Commerce. The language used is English or Dutch. The arbitration will take place in Breda (the Netherlands).
Article 18 – Governing law
18.1 These terms and conditions and any agreement between the seller and the buyer are subject to Dutch law only. The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
Article 19 Filing of terms and conditions
19.1 This publication supersedes all other articles and terms and conditions for delivery registered and/or issued by us in the past, unless otherwise expressly agreed in writing.
19.2 These conditions have been filed at the Chamber of Commerce and Industry for Central Brabant in Breda.
Drawn up on 1 July 2013
Mr. P.C. van den Berg / Ms. K. Van den Branden, Management