GENERAL TERMS AND CONDITIONS OF SALE OF KONINKLIJKE VIV BUISMAN B.V.
Article 1 General
1.1 These terms and conditions apply to all our offers and to all agreements (to be) entered into with us.
1.2 These general terms and conditions are maintained for every buyer and apply to the exclusion of all general terms and conditions of the buyer.
Article 2 Offers and order confirmations
2.1 All our offers are without obligation and lapse no later than 7 days after the date on which the offer was made. We are not bound until we have accepted the order issued to us by sending our written order confirmation, or have commenced execution of the agreement.
2.2 Every agreement is concluded under the suspensive condition that the products in question are readily available.
2.3 Any or alleged errors in order confirmations must be announced within 7 days of the date of that confirmation by means of a registered letter addressed to us, on penalty of dissolution of all rights.
2.4 Mistakes, typographical errors, misprints or computation errors give us the right to withdraw or change our offers, which right we must exercise immediately after our offer has been accepted by the buyer. In the event our correction leads to a significant price increase for the buyer which he could not have been expected to be aware of, the buyer will be entitled to dissolve the agreement in question.
Article 3 Prices
3.1 All prices are exclusive of VAT and expressed in Euros or US dollars, unless stipulated otherwise.
3.2 If after the date of the offer or after conclusion of the agreement the exchange rates etc. change, the purchase price or other costs in connection with the agreement are increased or if our surcharge (must) change, we are entitled to increase the prices initially agreed accordingly, with due observance of any applicable legal stipulations in that respect.
Article 4 Payment
4.1 Payment must be made within 14 days of the invoice date.
4.2 Payment by the buyer must always be made without applying any deduction or discount and without suspending his performance or to subject his performance to any performance on our side.
4.3 We are entitled to demand that the buyer provides security for fulfilling his obligations, particularly in respect of payment of the purchase price. The method of providing security is at our discretion. Failure to comply with an appropriate written demand from us gives us the right to demand immediate payment of the purchase price or to regard the purchase agreement as dissolved without legal intervention being required and without prejudice to our right to compensation.
4.4 In the event of overdue payment, we are entitled to charge 1.5% per month on the full amount due, counting from the due date until the day on which payment is made in full, with part of a month counting as a whole month.
4.5 The collection costs, both judicial and extrajudicial, are payable by the buyer. The extrajudicial collection costs are set at 15% of the unpaid component of the principal sum payable, subject to a minimum of € 250.00.
Article 5 Delivery and dispatch
5.1 All deliveries are made ex warehouse.
5.2 We stipulate the method of dispatch, packing and transport, unless explicitly agreed otherwise in writing.
5.3 Every shipment is at the risk of the buyer from the moment we surrender control of the goods to be shipped to the haulier.
5.4 When part of an order is ready, we may either deliver this part or wait until the entire order is ready. Invoices that relate to partial delivery must be paid by the buyer within the payment term.
5.5 As long as the buyer fails to pay one or several invoices after their due dates, all future deliveries may be suspended until full payment has been made, without prejudice to our right to cancel the order(s) and to claim compensation.
5.6 Delivery times stated may never be regarded as strict deadlines. The mere fact that we exceed a delivery term does not mean we are in default, and the buyer cannot fully or partially dissolve the agreement for that reason. In that case, the buyer is not entitled to compensation. In the event of late delivery, we must be given written notice of default, allowing us a reasonable term for compliance. A reasonable term is in any case the term deemed reasonable in our line of business.
Article 6 Retention of title
6.1 As long as the buyer has not paid the full purchase price and any additional interest and costs, as well as any claim for compensation from us on account of an attributable failure by the buyer or if he has failed to provide sufficient security for that, we retain the right of ownership to the goods.
6.2 The buyer is entitled to sell the goods in a manner that is customary for his business operations. However, he is not entitled to pledge the goods that are subject to our retention of title or to transfer them by way of security.
If, on the basis of the existing situation, the buyer must assume or foresee that he is no longer able or will not be able to fulfil his professional obligations, he is no longer entitled to have the goods at his disposal. In that case, the buyer will immediately notify us in writing and, if necessary, must keep and make the goods available for and to us without delay. The buyer must immediately notify us in writing of any attachment on our goods. He is obliged to insure those goods at his expense against all risks, including fire, explosion, burglary or theft, and to show us the relevant insurance policies if required.
6.3 The buyer undertakes to cooperate on our first demand in establishing a right of pledge to claims the buyer has or will have vis-à-vis its customers by virtue of the onward supply of goods. In that case, we are also entitled to opt for a disclosed or undisclosed pledge.
Article 7 Warranties, complaints
7.1 We guarantee that the goods delivered by us are in good condition and that they meet the requirements generally attached to such goods in our line of business. Minor deviations deemed permissible in the trade in terms of quality, colour, weight, etc. do not constitute a reason for complaints.
7.2 The buyer is obliged to thoroughly check the goods for faults immediately after delivery.
7.3 Complaints are processed only if they are received by us by registered letter within 8 days of the goods being delivered.
7.4 When the complaint is upheld, we reserve the right to redeliver the complaint-related goods within 10 days of receipt or, to the extent possible, to delivery similar, replacement goods.
7.5 When a complaint is upheld, we will fulfil our obligations to the greatest possible extent at all times, without the buyer being entitled to claim anything from us in that respect. Should compliance no longer be possible, we will not be liable for more than a sum equal to the value of the delivered goods. Any other or further liability on our part, with the exception of intent or gross negligence, is explicitly excluded.
7.6 We are not obliged to furnish any warranty on goods, of whatever nature, if and for as long as the buyer fails to fulfil any of his obligations or fails to do so properly or in time, which obligations with regard to those goods may ensue from his relationship with us. Furthermore, every warranty obligation on our part also lapses if and as soon as the buyer or his customers sell, treat or process the goods delivered or if and as soon as changes are made to those goods without our prior written consent.
7.7 The buyer must at all times ensure that complaints are properly substantiated, providing all the evidence required to process the complaint, otherwise we are not obliged to take any action.
7.8 When goods that are rendered unusable are replaced, the unusable goods must be sent to us immediately, after which they become our property.
Article 8 Liability for damage or loss
8.1 We are not liable for any damage or loss suffered by the buyer, including, but not limited to, loss of profit, indirect or consequential damage or loss, as a result of acts or omissions by us or by third parties hired by us, unless in the event of intent or gross negligence.
8.2 Our liability will in any case be limited to the sum paid by our liability insurer in the relevant case.
8.3 If our liability insurer does not pay out, our liability is limited to the invoiced amount for the goods delivered.
8.4 If a third party holds us liable for any damage or loss for which we are not liable by virtue of these general terms and conditions, the buyer is obliged to fully indemnify us and to compensate us for everything we would have to pay that third party.
Article 9 Dissolution, non-attributable failure (force majeure)
9.1 If we are obstructed in the execution of the agreement as a result of force majeure, we are, without prejudice to our rights and without legal intervention, entitled to either suspend execution of the agreement or to fully or partially dissolve the agreement during the force majeure period, without being obliged to pay any compensation.
9.2 For the purpose of this article, force majeure is in any case taken to mean any situation as a result of which the buyer can no longer expect us to comply with the agreement, which situations include war, imminent war, civil war and unrest, industrial strikes, exclusion of workers, transport problems, flooding, failed harvest, fire and other disruptions at our company or that of our suppliers.
9.3 In the event that the buyer fails to fulfil any of his obligations ensuing from the agreement, or if he fails to do so properly or in time, as well as in the event of bankruptcy, moratorium, discontinuation or winding up of the company, or if ownership of his business and/or the actual management transfers to another party, we will, without a notice of default and judicial intervention, be entitled to suspend the agreement, or to regard it as fully or partially dissolved, without prejudice to our other rights and without us being obliged to pay any compensation in that respect. In that case, each claim we have or will have against the buyer will be immediately due and payable.
Article 10 Disputes
10.1 All agreements between us and the buyer which are subject to these general terms and conditions are exclusively governed by Dutch law.
10.2 All disputes ensuing from agreements concluded with us will be submitted to the competent court in ’s-Hertogenbosch.
10.3 The applicability of the Vienna Sales Convention is excluded.
