1. The applicability of these Conditions
1.1 These Conditions shall apply to all agreements signed by us with the other party.
1.2 Agreements conflicting with or supplementary to these Conditions shall only be valid where and in so far as these confirmed by us in writing and then only for the transaction in question.
1.3 Any General Conditions used by the other party shall only apply where and in so far as we have expressly accepted their applicability in writing. Such acceptance shall not affect the applicability of our General Conditions, unless these conflict with the General Conditions used by the other party.
1.4 Unless expressly agreed otherwise in writing, acceptance, as referred to in Paragraph 3, shall only apply per transaction.
2. Entry into effect and execution of agreements
2.1 All our proposals or quotations shall never be binding for us and must be regarded as an invitation to the other party to make an offer.
2.2 The other party, who upon an invitation as referred to in the previous paragraph, makes an offer to us to enter into an agreement, is irrevocably bound to such offer.
2.3 An agreement shall only enter into effect between us and the other party when we have expressly agreed the offer of the other party referred to in the above paragraph in writing.
2.4 Execution of the agreement shall be effected by us on the basis of what is determined in the agreement with the other party.
2.5 Irrespective of the provisions in the above paragraphs, quotations of weight, dimensions and price, figures, drawings, etc. in the brochures, catalogues, folders etc. supplied by us, as well as in advertisements placed by us, models, samples or other examples supplied by us, or information published by or on behalf of us in another way, shall never be binding for us, but only intended to give the other party a general idea of the goods and services to be and/or already supplied by us.
2.6 Modifications relating to the execution of the agreement may only be made with our prior express written agreement.
3.1 Unless parties expressly agree otherwise, all prices and other amounts are exclusive of value added tax.
3.2 When in the meanwhile modifications occur in prices, wages, taxes, levies or when other facts or circumstances occur that may result in a cost increase for us, we shall be entitled to pass these on and to increase the amounts agreed accordingly.
4.1 All that has been agreed shall be delivered as quickly as possible after entry into effect of the agreement. The other party is aware of the fact that we buy in the Far East and must in all reasonableness allow for later deliveries than agreed.
4.2 Unless parties have agreed otherwise, delivery dates indicated by us shall only apply approximately and shall never be regarded as deadlines. We can then only get into default when we have been notified of default by the other party in writing.
4.3 All that has been agreed shall be delivered as described in the provisions of the agreement. Unless otherwise agreed in writing, we shall determine the method of dispatch.
4.4 A bill of lading, delivery note or similar document issued upon actual delivery of what has been agreed shall be deemed to record what has been ordered and delivered in all respects, thus also as regards quantity and quality, fully and in a binding way for the parties, except where and in so far as, after the other party has complied with the complaint ruling contained in Article 7, we consider the complaint founded.
4.5 Except in case of intent or gross negligence on our part, slight deviations, both with regard to quantity and quality of what has been ordered and delivered, and with regard to the agreed delivery date, the other party shall never have the right to any form of compensation or cancellation of the agreement, to cancellation of the order given, or any right to postponement, discount or set off.
4.6 Unless parties have expressly agreed otherwise, everything delivered by us shall be for the account and risk of the other party from the date of actual delivery. Where the other party had requested a particular method of dispatch, the risk for the goods shall be for the account of the other party from the moment when they are loaded for transport.
4.7 The other party shall be obliged to accept the goods upon delivery. Where the other party does not accept the goods delivered by us, or the seller, the goods shall be stored for his account and risk. Where the other party, in spite of summons from us has not fetched the goods within fourteen days and for his account, we shall have the right to sell the goods to third parties and to hold the original other party liable for any loss. The original other party shall at all times be obliged to reimburse the costs of the above-mentioned storage and the (additional) dispatch and administration costs urred by us. We reserve the right to deliver and invoice goods ordered in part consignments.
5. Reservation of ownership
5.1 We reserve the ownership for all goods delivered or to be delivered to the other party until full satisfaction of the consideration owed to us by the other party for relevant goods or, in accordance with such an agreement, also work carried out or to be carried out, as well as full satisfaction of claims because of shortcomings in the fulfillment of such agreements.
5.2 Unless parties have expressly agreed otherwise in writing, the other party shall not be empowered to process or incorporate, use or consume goods already supplied, with regard to which the other party has not yet fully met its payment obligations, either within the exercise of a business or profession, or in any other way, or to umber with rights of third parties, transfer or otherwise carry out acts of disposal with regard to these goods.
5.3 The other party shall at our first request undertake to establish a non-possessory lien on all claims against third parties as a result of delivery to these third parties of goods on which an ownership reservation as indicated in 5.1 rests, and then to carry out all the required actions for this. Any costs related thereto shall be for the account of the other party.
6.1 Unless parties have expressly agreed otherwise in writing, payment shall only take place within thirty days of the invoice-date.
6.2 As soon as the payment term referred to in Article 6.1 of these Conditions is exceeded, the other party shall be in default and shall owe on the invoiced amounts (including VAT) as well as on any collection costs owing in accordance with Article 6.3 of these Conditions, or at least on the parts not yet paid on the amounts invoiced, or the collection costs, interest of 1,5% per month for each month that payment is outstanding, where part of a month shall be deemed to be a full month.
6.3 All costs incurred by nonpayment, late and/or incomplete payment, shall be fully for the account of the other party. Where after a payment deadline is exceeded, as referred to in Article 6.1 of these Conditions, we place collection in the hands of our own collection department, or that of third parties, the other party, notwithstanding the provisions of the above paragraph, shall reimburse to us out-of-court (collection) costs owed, calculated in accordance with the collection tariff of the Dutch Bar, but with a minimum of € 250,-. This shall not affect our other claims to imbursements of costs and compensation.
6.4 The payment made by the other party shall always first settle those claims which we may have against the other party, for which we have not reserved ownership, then to settle all interest and costs owing and finally to settle the longest outstanding invoices payable, even where the other party has already indicated that the settlement relates to a particular claim or invoice.
6.5 Where the other party exceeds a payment deadline we shall have the right to demand cash payment or cash on delivery for subsequent deliveries.
6.6 Cheques, post office cheques, transfer orders and bills or any other papers offered to us by way of payment, shall be accepted by us as payment, with reservation of good conclusion.
6.7 Where we have given an extension to the other party for any reason whatever to carry out any service, the new deadline shall always be of a vital nature.
7.1 Complaints may only be made by the other party with regard to goods missing or not ordered, as well as with regard to externally visible defects in goods or services carried out. The other party shall, after the actual delivery of the goods ordered and purchased, be obliged to immediately inspect these goods thoroughly and to inform the user by registered letter giving clear reasons within fourteen days of the date of the actual delivery or the date on which the other party should have had these goods at his disposal, of any faults, defects or other complaints relating to the goods supplied. In case of goods missing or not ordered, the other party must enclose the packing list with the above-mentioned letter. We must be put in a position to check complaints submitted.
7.2 When the other party fails to do what is stated in the above paragraph, he shall be deemed to agree with the condition of delivery of the goods and any right to claim and/or compensation shall expire.
7.3 Should the claim be found to be valid we shall have the choice of replacing or repairing the goods or taking them back on credit from the other party, or of giving the other party a price reduction.
7.4 In case of claim the other party shall never make any claim to a further form of compensation, guarantee or compensation (for damages) than that which we in turn can claim from our supplier and/or our insurer.
7.5 Slight deviations, which are normal in the trade, or technically unavoidable, and difference in quality, color, measurement or finish, may not provide grounds for complaint.
7.6 The complaint submitted by the other party according to the above paragraphs of this article shall never be able to prevent the goods ordered and purchased by the other party passing to the account and risk of the other party from the time of the actual delivery of the goods ordered and purchased, until, in accordance with paragraph 4 of this article, after finding the complaint valid, we have proceeded to exchange them.
8. Force majeure
8.1 Notwithstanding the statutory provisions, the following shall be deemed short-comings not attributable to us: strike, fire, perishing of goods en route, water damage, government measures, delay in shipping abroad, war, mobilization, transport barrier, import barrier, export barrier, default of suppliers, as well as all circumstances as a result of which seller is impeded in the normal exercise of his business.
8.2 In case of a shortcoming not attributable to us, we shall have the right to post-pone the execution of the agreement for as long as the situation not attributable to us continues, or to cancel the agreement in full or in part, without any legal intervention; without us being liable for any compensation on that account.
9.1 Notwithstanding the provisions elsewhere in these General Conditions, we shall never be liable, except in case of intent and gross neglect.
9.2 When apart from the case of intent or gross neglect in law we are nevertheless judged to be liable, we shall only be liable up to the lowest of the following amounts:
-the contract price to be paid by the other party in accordance with the agreement, to which the liability relates (excluding VAT, interest and costs);
-the maximum amount for which we can hold our supplier, or other prior links in the chain, liable;
-the maximum amount for which our insurer will accept liability with respect to the claim for damages of the other party.
The marks, as well as the type or identification numbers or characters, affixed to the goods supplied by us, including the packing, may not be removed, damaged or changed.
11.1 Where the other party does not properly meet or does not meet within a set period or otherwise does not promptly meet any obligation which may arise for him out of any agreement, the other party shall be in default and we shall be in default and we shall be justified without giving notice of default: to postpone execution of this agreement and the agreements relating directly thereto, until payment has been made sufficiently certain and/or to cancel this agreement and agreements directly relating thereto in full or in part; all notwithstanding our other rights under any agreement with the other party whatever.
11.2 In case of (provisional) suspension of payments, bankruptcy, closure or liquidation of the business of the other party, legal merger of the other party, all agreements with the other party shall be cancelled by right, unless we notify the other party within a reasonable period that we demand performance of (part of the) relevant agreement(s), in which case we shall be entitled without giving notice of default: to postpone the execution of the relevant agreement(s) until payment has been made sufficiently certain; and/or postpone all obligations we may have with regard to the other party; all notwithstanding our other rights under any agreement with the other party whatever.
11.3 Should an event occur, such as referred to in the above two paragraphs, all claims by us on the other party and the claims referred to under the relevant agreement(s) respectively shall become immediately payable in full and we shall be entitled to take back the relevant goods. In such case we shall be entitled to enter the land and buildings of the other party in order to take possession of the goods.
11.4 In cases, such as those referred to in the above paragraphs of this article, the other party shall never have the right towards us to any form of compensation for damages, costs and/or interest.
12. Election of domicile and competent judge
12.1 Any disputes which relate to these Conditions or an agreement signed with us, shall, except where and in so far as international treaties and/or the law determine otherwise, always be decided by the competent Dutch judge within whose jurisdiction we are established.
12.2 As an exception to the provisions of the above paragraph, disputes between parties, at our free choice, may also be decided by the competent Dutch judge, within whose jurisdiction the other party is established.
13. Applicable law
Except where and in so far as international treaties and/or the law determine other-wise, only Dutch law shall be applicable to the disputes referred to in the previous article. These General Conditions have been deposited with the Chamber of Commerce and Industry of Arnhem under number 09023040
Otsi BV / Polydaun BV
Edisonstraat 98, 7006 RE Doetinchem, The Netherlands