General Delivery and Payment Terms
Article 1: Applicability
These general conditions apply to all our offers/quotes, deliveries and agreements entered into by us for the delivery of goods to our buyers.
Wherever reference is made in these general terms and conditions to “purchaser”, this shall be understood to mean any natural or legal person who is in a contractual relationship with us by virtue of a purchase agreement concluded with us, or who wishes to enter into another type of agreement. In particular, “buyer” also means the person whose order and for whose account goods are delivered.
Deviations from the provisions of these general terms and conditions are possible only if and insofar as they have been expressly agreed in writing.
If the buyer also refers to (his) general terms and conditions, the buyer’s terms and conditions shall not apply. This is only different if and insofar as the applicability of the buyer’s terms and conditions do not conflict with our general terms and conditions, in which case only the provisions of our terms and conditions shall apply. Any contrary provision in the Buyer’s terms and conditions shall not affect the foregoing.
Where these general terms and conditions refer to “delivery (of goods)”, this shall also include the performance of services and activities of any kind.
Article 2: Offers
All our quotations should be regarded as invitations to the potential buyer to make an offer. They therefore do not bind us in any way whatsoever, unless the contrary is explicitly and unambiguously stipulated (in writing) in the quotation itself. The order given to us shall be regarded as an offer, which is only deemed to have been accepted by us after written confirmation on our part (the so-called order confirmation).
The offers made by us shall include the following, in particular with regard to the provisions of the previous paragraph: designs, drawings, models, samples, descriptions, illustrations and the like, as well as any annexes and documents relating to our offers. All this, as well as tools made by us in this connection, remains our property, must be returned to us at our request and may not be copied and/or given to third parties without our express written permission. We also reserve all rights that may exist in terms of intellectual and industrial property.
Article 3: Realization of Agreement
An agreement with us shall only come into effect when we have accepted in writing an order given to us. An agreement is deemed to be established at the time we send the order confirmation.
The buyer is bound by his order, in whatever form given to us, for a period of 8 days after the date of the order or (if it concerns a verbal order) after the giving of the order. A statement by the Buyer that he wishes to cancel or change his order issued during this 8-day period cannot therefore prevent an agreement based on the (original) order from coming into effect, if we still accept/confirm the order within this 8-day period.
The order confirmation sent by us to the buyer is deemed to fully and correctly reflect the content of the agreement entered into. The buyer is deemed to agree with the contents of our order confirmation, unless he notifies us in writing within 8 days after the date of our order confirmation that he cannot agree with the contents.
Any additional agreements and/or undertakings made and/or given by our employees, or made and/or given on our behalf by other persons acting as representatives, shall only bind us if such agreements and/or undertakings have been confirmed in writing by our director(s) authorised to represent us.
Article 4: Prices
Our prices are exclusive of sales tax and, unless expressly agreed otherwise in writing, exclusive of packaging, transportation and other costs.
The prices stated in quotations, contracts and order confirmations are based on the cost factors applicable at the time the agreement is concluded, such as exchange rates, manufacturer’s prices, raw material and material prices, wage and transport costs, insurance premiums, taxes, import duties and other government levies.
We reserve the right, if after the date on which the agreement is concluded, but before the day of delivery, increases occur in one or more of the cost factors, to charge these increases to the Buyer. Furthermore, in such a case we shall be entitled to declare the agreement fully or partially dissolved without judicial intervention being required. The latter right is also vested in the buyer, but only if, within 3 months of the conclusion of the contract, we take the view that changes in costs will result in an increase in the price specified in the order confirmation. If the purchaser makes use of this right, he must invoke the rescission by registered letter within 7 days of receiving the relevant communication from us.
Article 5: Delivery and delivery terms
The delivery times quoted by us shall take effect on the day on which the agreement is concluded, provided that all the information we require for the execution of the order is in our possession. The delivery times given by us shall never be regarded as deadlines, unless explicitly agreed otherwise in the individual agreement. In the event of late delivery, we must therefore be given written notice of default. If - contrary to the above - in the individual agreement a penalty for exceeding the delivery time has been explicitly agreed upon, this penalty shall not be due if the exceeding of the delivery time is the result of the cases of force majeure mentioned in Article 10 of these General Terms and Conditions.
Unless the order confirmation states otherwise, delivery of goods shall be free domicile when the invoice amount exceeds €5,000, in words: five thousand euros. Furthermore, the goods shall travel at the expense and risk of the Buyers. Unless otherwise agreed, we deliver to foreign buyers ex warehouse. The goods shall also be transported at the expense and risk of the Buyers. Customs clearance will be arranged by us, but will be at the expense of the Buyer.
Unless buyers themselves provide a forwarding agent, the goods will be dispatched by us in the manner we deem favourable with forwarding agents of our choice at the expense and risk of the buyer.
If a buyer requests delivery of goods in a manner other than the usual manner, we may charge the buyer for the costs associated with this.
If delivery is made in parts, we shall be entitled to regard each delivery as a separate transaction.
The buyer is obliged to take delivery of the purchased goods within the agreed period. In the event of failure to do so we are entitled - at our discretion - on the basis of the provisions of article 6:60 of the Civil Code to claim that the competent court releases us from our obligation to deliver the agreed goods, or to claim payment of the purchase price of the part not taken without prior notice of default. If the purchaser does not meet his obligation to pay, we are entitled to declare the agreement dissolved without legal intervention. If, in accordance with the above, the Buyer fails to demand payment of the purchase price, the goods will be deemed to have been delivered and we will store the goods at the expense and risk of the Buyer against payment of all resulting costs.
Article 6: Claims by the buyer
The Purchaser guarantees the correctness and completeness of and is responsible for the data he has provided us with. Where the data, measurements, color fastnesses and suchlike provided by us in our offer, or what forms part thereof under article 2, paragraph 2, are concerned, the purchaser must take into account the usual tolerances and minor changes in the goods delivered by us. This applies in particular to deviations from the contracted quantity; here too the purchaser must take account of customary tolerances. The goods delivered by us may therefore deviate from the description in the order if and insofar as it concerns small size differences, quantity differences and minor changes.
Complaints by the Buyer relating to defects in goods that are visible on the outside must be brought to our attention by the Buyer within 7 days of delivery (or within 7 days of the invoice date), if the goods were not (or could not be) delivered to the Buyer. This must be done by registered letter containing a clear and accurate description of the complaint and stating the invoice with which the goods concerned were invoiced. The Purchaser must carry out a careful and timely inspection.
Defects that were not externally observable at the time of delivery, nor could they have been discovered during a careful and timely inspection, must be reported to us by the purchaser within 7 days of the discovery of these defects in the manner specified in paragraph 2.
Any right of claim of the buyer against us relating to defects in the goods delivered by us shall lapse if:
a) the defects have not been reported to us within the periods specified in paragraphs 2 and 3 above and/or in the manner indicated therein;
b) the buyer does not/inadequately cooperate with us regarding an investigation into the merits of the complaints;
c) the buyer has not properly set up, handled, used, stored, or maintained the items or has used or handled the items under conditions or for purposes other than those provided by us;
d) The application of the use of the items in respect of which the complaints have been expressed by the purchaser shall be continued;
e) the guarantee period specified in the individual agreement has expired or, if there is no such period, the complaints are only voiced after a period of more than 1 month has elapsed since the delivery date.
f) The defects are other than manufacturing or material defects.
In disputes concerning the quality of the goods supplied by us, a bureau of good repute indicated by us will make a binding ruling.
Article 7: Liability
Only if the guarantee obligations in respect of the goods delivered by us have not been assumed by third parties (such as manufacturers) can the buyer assert (guarantee) claims against us. Our liability is in that case limited to defects resulting from manufacturing and material errors.
In the event of a claim, if the justification for the claim is determined by us and if we are also liable as referred to in paragraph 1, we shall only be obliged to do so at our own discretion:
a) (free) repair of defects;
b) delivery of replacement goods or parts, after receipt of the faulty goods or parts;
c) repayment of the purchase price received/crediting of the invoice sent to the purchaser with dissolution without legal intervention of the concluded agreement, all insofar as the purchase price, the invoice and the agreement relate to the defective goods delivered;
d) an indemnity to be paid in consultation with the purchaser in another form than that referred to above.
If the purchaser has carried out repairs and/or changes to the goods without prior, explicit and written permission, any guarantee obligation on our part will lapse.
In the case of delivery of goods, we shall never be liable for damage suffered by the Buyer arising from use of the goods in practice, even if such use has taken place on the basis of information provided, directly or indirectly, by us.
Without prejudice to any obligations on our part pursuant to the above, we shall never be obliged to pay any compensation to the buyer and others, unless there is intent or gross negligence on our part (to be demonstrated by those holding us liable by legal means). In particular, we shall never be liable for any consequential or trading loss, direct or indirect loss, however called, including loss of profit and loss caused by standstill, suffered by the principal, his subordinates and persons employed by him or by third parties, caused by whole or partial (re-)deliveries of goods, delayed or faulty delivery, or failure to deliver goods or by the goods themselves.
For the purposes of the above, business means not only goods, but also services such as consulting and staff support.
The purchaser is not entitled to return goods in respect of which no justified claim exists. If this nevertheless occurs without valid reasons, all costs related to the return are at the expense of the buyer. In that case we are free to store the goods with third parties at the expense and risk of the buyer.
The purchaser is obliged to indemnify us against all claims which third parties may bring against us in connection with the execution of the agreement, insofar as the law does not prevent the damage and costs resulting from these claims being for the account of the purchaser.
Article 8: Retention of title and security
Goods delivered by us remain our property until the moment of full payment of all that the buyer owes us on account of, related to or arising from the goods delivered by us. If we consider it necessary, we have the right to demand security from the Buyer for the performance of his obligations.
The Buyer shall not have the right to pledge the unpaid goods or to establish a non-possessory pledge on them or to establish any other business or personal right on them for the benefit of a third party.
Without prejudice to the above provisions in this article, the Buyer is permitted to sell the goods to third parties, but only within the framework of his normal business operations. In that case the buyer is obliged to transfer the monies obtained to us immediately, or, if the sale is not for cash, to transfer the claims obtained to us immediately.
If, as a result of treatment or processing by the purchaser, our right of ownership resting on the goods delivered by us is lost, the purchaser is obliged to establish a non-possessory pledge for our benefit on the goods created after the treatment or processing.
We are at all times entitled to take possession of the goods which are in the possession of the Buyer (or third parties), but which are our property, as soon as we can reasonably assume that there is a real chance that the Buyer will not meet his obligations. The foregoing does not affect our rights under ordinary law: in particular, we also reserve the right to claim damages from the buyer after we have taken possession of the goods.
The purchaser is obliged to insure the risk of fire and theft with respect to the unpaid goods and to provide proof of such insurance at our request.
Article 9: Payment
Payment must be made in Euros, unless otherwise agreed, without any deduction or discount in cash at the place where we are established or by transfer to a bank or giro account indicated by us, in both cases immediately after delivery of the goods concerned, at the latest within 14 days after the invoice date, all this unless explicitly agreed otherwise in writing. In case of payment by bank or giro, the day of crediting our bank or giro account will be considered the day of payment.
If the buyer fails to make (full) payment on time, he shall be in default without further notice of default being required. We shall then be entitled, if there is a sufficient connection with the failure of the Buyer, to suspend the fulfilment of all our obligations towards the Buyer, without prejudice to all our rights under ordinary law.
We shall also be entitled to demand cash payment for delivery of the goods or a guarantee of timely payment for all deliveries yet to be made. Furthermore, we will then be entitled to dissolve the agreement without legal intervention, whereby the buyer will then be under the obligation to return the delivered goods, or the obligation to otherwise undo the performance carried out by us, without prejudice to our right to compensation. If the buyer remains in default of timely payment, he forfeits to us, or the seller’s credit insurer, without further notice from us being required, from the due date until the day of payment in full, an interest equal to the statutory interest plus 2% per year, calculated over the unpaid amount, which interest is immediately payable without further notice of default. All costs related to the collection of invoiced amounts (including extrajudicial collection costs) shall be borne by the debtor. The extrajudicial collection costs shall be at least 15% of the principal amount excluding value added tax. In addition, all adverse consequences of loss of exchange rate or otherwise resulting from late payment or non-payment shall be for the account of the Purchaser, even if, according to the provisions in force in his country, the Purchaser has fulfilled his payment obligations in time, but circumstances or measures beyond his control have caused the transfer to take place in a manner disadvantageous to us.
In accordance with Article 6:44 of the Dutch Civil Code, payments shall first be applied to reduce the costs referred to in paragraph 3, then to reduce the interest due and finally to reduce the principal sum and current interest.
If there is a considerable deterioration in the financial position of the Buyer after the agreement has been entered into, but before the delivery of the goods, we shall be entitled to decline further performance of the agreement in whole or in part, or to demand a change in the payment conditions.
Seller may assign its claims under all Transactions to a credit insurer of its choice.
Article 10: Force Majeure
Force majeure shall be understood to mean any circumstance beyond our control of such a nature that compliance with the agreement cannot reasonably be required of us (non-attributable failure to perform). Force majeure also includes: war, riots and hostilities of any nature, blockade, boycott, natural disasters, epidemics, lack of raw materials, prevention and interruption of transport facilities, disruptions in our business, import and export restrictions or prohibitions, impediments caused by measures, laws or decrees of international, national and regional (government) agencies. If we cannot fulfil our delivery obligation or fulfil it properly or on time due to force majeure, we are entitled to regard the agreement or the part not yet fulfilled as dissolved, or to suspend it for a definite or indefinite period of time, this at our discretion. In case of force majeure the buyer cannot claim damages from us.
Article 11: Applicable law
All offers made by us and all agreements entered into by us shall be governed exclusively by Dutch law.
Article 12: Dispute Resolution
All disputes of any kind relating to/resulting from agreements entered into by us and deliveries made by us shall be adjudicated by the competent court in the Netherlands.
Thatchtec BV, Agro Business Park 10, 6708 PW Wageningen, The Netherlands