1. These general terms and conditions apply to all offers, agreements and deliveries of goods and services by the originator of these general terms and conditions (hereinafter to be referred to as: the seller) vis-à-vis the other party (hereinafter to be referred to as: the buyer), unless explicitly agreed otherwise in writing between the seller and the buyer.
In particular, they shall also apply to offers, agreements and deliveries of bricks and of rubble and pieces.
They also apply to all subsequent offers, agreements and deliveries, however they are made.
2. The applicability of the buyer's own terms and conditions of purchase, if any, shall be excluded, if and insofar as they conflict with these terms and conditions, unless the seller expressly accepts these in writing with regard to any specific transaction. This acceptance does not imply that the purchase conditions (shall) also apply to other transactions by the buyer.
Offers and order confirmations
3. All offers made by the seller are without obligation. The agreement is valid only upon written confirmation by the seller or (commencement of) the actual execution by the seller or (any (other) acceptance of the order, whether tacitly or not, by the seller.
If the accuracy of the contents of a written confirmation from the seller is not contested within 8 working days, then the parties shall be bound by it.
4. In the event that the buyer cancels all or part of the order or fails to meet the obligation to purchase, the buyer shall be liable to the seller in the amount of € 25.00 per 1,000 pieces of Waal size bricks or Waal size equivalents that have been cancelled or not purchased by the buyer. This amount shall be payable by the buyer without further notice of default being required and irrespective of whether the seller suffers actual damage as a result of the cancellation or failure to take delivery of the bricks. The above shall not apply where the cancellation or non-purchase does not exceed 10% of the total number of Waal size bricks or Waal size equivalents to which the order relates. If the cancellation or non-purchase exceeds 10%, the aforementioned amount shall be due on all cancelled or non-purchased bricks. In respect of bricks already delivered, these cannot be cancelled under any circumstance.
The buyer shall be obliged to compensate the seller for any damage suffered by the seller as a result of the cancellation or as a result of the non-purchase, in the event that such damage exceeds the amount payable by the buyer on the basis of the above.
The provisions of this article are without prejudice to the rights of the seller to claim performance with possible compensation instead of the aforementioned amount.
4a. Amendments to the agreement, in whatever form, shall take effect strictly subject to agreement in writing between the seller and the buyer. If, following the conclusion of the agreement, the buyer requires further changes to the execution thereof, it is at the discretion of the seller to determine whether, and if so under which (further) conditions, such changes remain acceptable within the framework of the agreement.
In the event of changes to the agreement (of whatever nature), the seller is entitled to charge the buyer for any additional costs associated with such changes.
5. The place and time of transfer of ownership of the goods by the seller shall in all cases be deemed to be the place and time of loading at the seller's factory. After loading, the seller shall be under no obligation to entertain complaints regarding colour, quality, shape, quantities, etc., without prejudice to the provisions of articles 9 to 14 inclusive. At the time of transfer of ownership, the buyer is deemed to be cognizant in regard to the quality of the goods purchased and their suitability regarding application and use.
The Seller shall make every effort to deliver within the delivery period stated in the agreement. Exceeding the delivery period shall not incur the default referred to in Section 6:83 (a) of the Dutch Civil Code, unless it has been expressly agreed in writing between the Seller and the Buyer that a delivery period shall be regarded as binding. In the latter case, the seller's liability shall be limited to any damage demonstrably suffered by the buyer as a result of a delay in delivery, up to a maximum of the invoice amount of the delayed part of the delivery. In the event that a delivery period agreed as binding is exceeded, the Buyer shall not be entitled to suspend or fail to fulfil any obligation towards the Seller. In all other cases of delay in delivery, the Seller shall not be liable for any loss or damage incurred by the Buyer as a result of such delay.
6. Where “delivery free of charge” or “free of charge at destination” is stipulated, then this stipulation shall be deemed to relate solely to the transport costs and the transport risk and therefore not to the place and time of transfer of ownership and therefore also not to the moment of transfer of risk in the goods delivered. In such case, the price includes the transport of the goods to the place of unloading, provided such place is situated on a paved road or is normally accessible by means of transport carrying a full load. In which case unloading shall always take place next to the vehicle or vessel at the place indicated by the buyer, with due observance of the above.
7. In the case of “delivery ex works”, the transport shall be effected by the buyer. The buyer and the seller may agree that transport shall be effected by the seller at the expense of the buyer. In such case, the buyer is responsible for the transport risks. The seller may charge the buyer for the costs of any transport insurance policy taken out.
Taking delivery of the goods
8. The Buyer is obliged to take delivery of the purchased goods within the delivery and/or call-off period/s specified in the agreement for such purpose. In the event that a delivery period has not been specified or if it has been specified that the delivery shall take place on demand without any time limits having been established with regard to the demand, acceptance must take place within 3 months of the date on which the agreement was concluded, pursuant to Article 3.
In the event that the buyer has not taken delivery of the purchased goods on time, the seller shall send the buyer a written warning and the buyer shall be in default after the expiry of 3 working days following this written warning by the mere expiry of that period without any (further) notice of default being required. In addition to the other rights which arise from the buyer's negligence, the seller retains the right, in addition to other rights which subsequently arise under the law and under these general terms and conditions - in particular those under Article 4 - to revoke the agreement in respect of the part not yet performed by simple notification and without judicial intervention.
Quality and inspection
9. A waybill, delivery note or similar document issued on delivery of the goods shall be deemed to correctly reflect the quantity of the goods delivered, unless the buyer notifies the seller in writing of his objection to this immediately upon receipt of the bricks.
10. If and to the extent that it has been agreed that the quality shall be according to a sample, such sample shall be used to determine the average quality of the bricks. A type of brick issued by the seller or received by the buyer in connection with the sale shall only be regarded as a sample if this has been expressly agreed in writing.
11. The buyer is entitled to inspect the goods at his own expense prior to delivery. Where the buyer has requested this inspection, the seller is obliged to inform the buyer in good time before loading, of the time and place at which inspection may take place. Where the seller has not fulfilled this obligation, the buyer is entitled to report his objections with regard to the delivered goods as soon as possible, but at the latest within 8 days after delivery of the goods.
12. Where the buyer has not carried out an inspection and/or following an inspection andprior to the delivery of the goods, if the buyer has not made any objections regarding the quality of the goods to be delivered, the buyer no longer has any right to make any complaint with regard to the goods delivered. If, following the inspection, faults are found which could not be identified during a normal inspection customary in the sector, the buyer may make any objections known as soon as possible and at the latest within 8 days after delivery.
13. All rights of the buyer to complain about the delivered goods shall in all cases lapse as soon as the goods have been processed.
13a. Differences in colour and structure are inherent in the material of coarse ceramic products and therefore do not constitute a product fault. Minor damage which does not materially affect the performance of the products, cannot be regarded as a product fault.
Complaints and liability
14. On penalty of forfeiture of the buyer's right to complain, all complaints must be made in writing within the time limits stipulated in these general terms and conditions.
Insofar as these general terms and conditions do not stipulate a shorter period, or this shorter period cannot reasonably be demanded of the buyer, a complaint must in any case be made no later than 8 days after the buyer has become aware of faults in the delivery or the buyer could reasonably have been aware of such faults, without prejudice to the provisions of Article 13. All complaints must be made with a precise indication of the nature of the faults.
15. The liability of the seller, for whatever reason, is limited to a maximum of the invoice value of the delivered goods to which the complaints that were found by the seller to be justified relate, or to the exchange of those goods for similar goods or to a reduction in the purchase price of those goods, all of which shall be at the discretion of the seller.
In the event that the seller agrees to exchange the goods, the associated transport costs shall be borne by the seller.
If the seller agrees to a reduction in the purchase price, this reduction shall be limited to that part of the purchase price attributable to the defective goods or to the extent of the fault in the goods. If the fault is of such a nature that the buyer can no longer use the goods and the buyer wishes to dispose of the defective goods, then these good shall be made available to the seller, who will remove the goods at the seller's expense. In so far as this is reasonable, the seller will also reduce the transport costs that can be attributed to the faulty goods and the goods that can no longer be used.
All further claims of whatever nature and from whomsoever are excluded. The Seller shall not be liable for consequential damage and direct and indirect loss of profits, stagnation damage, delay in construction, loss of orders, loss of profit, processing costs and suchlike.
16. The Buyer indemnifies the Seller against any liability towards third parties that goes beyond the liability that the Seller has towards the Buyer.
17. The prices quoted by the Seller are based on the cost components applicable on the date of the quotation. All increases in the cost components that occur after the offer and/or during the execution of the agreement, of whatever nature, shall be passed on by the seller to the buyer in the price for those parts of the agreement that, at the time of the increases, have not yet been executed.
17a. The offered and agreed prices are in euros and exclusive of VAT. Unless
as expressly agreed otherwise, the price does not include other taxes, levies and duties due pursuant to the law, packaging, loading, transport and insurance costs.
17b. The Seller shall be entitled to charge a credit restriction surcharge of 2%, which may be deducted from the invoice if payment is made within thirty days of the invoice date.
Payment and security
18. Payments must be made within 30 days of the invoice date, without any discount or set-off on any account whatsoever. Complaints with regard to the delivered goods do not entitle the buyer to suspend payment and/or to invoke a right of retention. The time of payment shall be the time at which the amount due is credited to the seller's account. Incoming payments shall be used to pay interest and costs first, followed by the oldest outstanding principal sum/s, even if the buyer declares otherwise in this respect.
19. Where the invoice amount is not paid on the due date, the buyer shall be in default towards the seller by operation of law, without any reminder or notice of default being required. In such case, the buyer shall owe a default interest of 15% per annum from the due date as well as extrajudicial collection costs amounting to at least 15% of the amounts owed by the Buyer, with a minimum addition of € 125.00.
20. During the term of the agreement, the seller is at all times entitled to demand advance payment or security for payment.
21. All claims by the seller against the buyer are due and payable immediately:
- if the buyer fails to meet his payment obligations or other obligations towards the seller, or fails to do so on time;
- if the buyer refuses to comply with the seller's request as referred to in article 20;
- if the buyer's bankruptcy is applied for or if the buyer applies for a suspension of payments;
- if any of the buyer's assets are seized;
- if the buyer sells or liquidates their business.
22. In the cases described in Article 21, the seller shall have, in addition to the other rights provided for by law and by the agreement, including the present general terms and conditions - the right either to suspend his obligations or to terminate the agreement by simple notification, or to dissolve the agreement in whole or in part without any notice of default or judicial intervention being required, without prejudice to the seller's right to claim damages in addition to or instead of the suspension or dissolution.
Retention of title
23. The delivery of the goods by the Seller is subject to retention of title. This retention applies to claims for payment of all goods delivered or to be delivered by the seller to the buyer pursuant to any agreement on goods and services provided or to be provided and work carried out as well as in respect of claims on account of the buyer's failure to comply with this agreement/s, including the present general terms and conditions.
23a. In all cases as referred to in Article 21, the seller is entitled to recover the goods to which the retention of title applies. Insofar as necessary, the seller is deemed to have been irrevocably authorised by the buyer to remove the goods (or have them removed) from the location where they are located.
24. The buyer grants the seller, or third parties appointed by the seller, permission to enter their business premises, warehouses, factory buildings, etc., for that purpose.
If the law of the country of destination of the purchased goods offers more far-reaching possibilities for retention of title than stipulated above, the parties agree that these more far-reaching possibilities are deemed to have been stipulated for the benefit of the seller, on the understanding that if it is objectively impossible to determine to which far-reaching rules this provision applies, the above provisions regarding retention of title shall continue to apply
25. If the seller has recovered the goods in accordance with article 23a, the buyer shall be credited for the value of the goods recovered at the time of removal, to be determined by the seller, less such costs associated with recovering the goods.
26. Within the scope of their normal business activities, the buyer may dispose of the goods delivered under retention of title. In any event, normal business operations do not include the provision of security to third parties or disposal in the context of the transfer of all or part of the business of the buyer.
Where the buyer disposes of the goods, the buyer is obliged to establish a private or public pledge on behalf of the seller - at the seller's discretion - on the claims arising from this decision.
27. Where the seller is prevented by force majeure from delivering or from delivering in the usual manner, the seller shall be entitled to extend the delivery time by the duration of the force majeure or to dissolve the agreement, insofar as it has not yet been executed, without being obliged to pay any compensation. Force majeure shall include: war, acts of war, riots, molestation, strikes and lockouts, failure of machines and/or tools, unavailability of transport, stagnation in the supply of raw materials or energy, government measures, as well as any circumstance, of any nature, as a result of which it is reasonably impossible for the seller to deliver in a normal manner.
28. Advice given by or on behalf of the seller or proposals made or instructions given in respect of materials, constructions, models and applications are always given without obligation.
The seller shall never be liable for any damage whatsoever that may arise as a result of advice or proposals or instructions given by the seller.
29. In the event that one or more of the provisions of the agreement concluded between the seller and the buyer - including the present general terms and conditions - should be found to be legally invalid, the remaining provisions shall remain in full force and effect. In place of such invalid provisions, provisions that resemble the invalid provisions as closely as possible shall become legally effective, taking into account the intentions of the parties.
Place of performance, choice of law, competent court
30. Offers made by the buyer and the agreement between the seller and the buyer are governed by Dutch law. This shall apply also to all agreements entered into with buyers resident or established abroad.
All disputes arising from this legal relationship and any agreements arising from it shall be settled by the competent court in the seller's location of business or, at the Seller's discretion, by the competent court in the buyer's location of residence or place of business.
The foregoing provisions do not affect the fact that the parties may decide by mutual agreement to have disputes settled by means of mediation, binding advice or arbitration.
These General Terms and Conditions were filed at the Registry of the District Court of Arnhem in August 2012 under number 2012/15.
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