GENERAL TERMS OF DELIVERY AND PAYMENT
of Dankers Special Case Products BV (D.S.C.P.) registered in 5061 KG Oisterwijk, Belgiëstraat 3 containing conditions applying to agreements entered into under company activities. Registered under no. 2999 KvK of Tilburg.
ARTICLE 1 SCOPE OF THESE TERMS
1. These terms shall apply to all offers, agreements, deliveries and services either carried out or not yet carried out for any third party (the principal) by D.S.C.P. (the contractor), unless expressly agreed on otherwise in writing.
2. Any other applicable general terms, however named, shall apply for as far as those do not conflict with these terms. Should other general terms conflict with that stipulated in these terms, that stipulated in these terms shall apply, unless expressly agreed on otherwise in writing.
ARTICLE 2 OFFERS AND QUOTATIONS
1. All offers, quotations and information in advertisements and print provided by the contractor are free of engagement, unless expressly agreed on otherwise.
2. Prices quoted are prices ex warehouse or factory, unless stated otherwise.
3. Offers from stock are always subject to being unsold.
4. Information in offers and/or quotations and/or computer programmes supplied by the contractor are and shall remain the property of the contractor, and shall not be disclosed to third parties or copied by the principal without the contractor's permission.
5. Unless expressly agreed on otherwise offers and quotations do not cover services including assembly or installation work.
6. Offers are only valid for 30 days after the offers have been made to the principal. The contractor shall not be under the obligation to extend said offer after expiry of said term.
7. The contractor is entitled to refuse any order without being obliged to state a reason therefore.
8. The offer or confirmation is considered to be a full and accurate representation of the agreement; if no offer or confirmation has been sent or if such has been impossible due to circumstances such as the character, volume or urgency of the order, the invoice is considered to be the confirmation.
ARTICLE 3 AGREEMENTS
1. Agreements are entered into by a written confirmation of the order in whatever form, by acceptance in whatever way, or by the contractor's execution of the order.
2. If the agreements and additions thereto have been confirmed in writing by the contractor, they shall be binding on the contractor inasmuch and in the way as confirmed by the latter.
3. Agreements and modifications or additions thereto by the contractor's staff or intermediaries acting under his orders shall only be binding if confirmed in writing by the contractor.
4. The contractor has the right to modify the agreement, provided that this is done in time and in writing. These modifications shall be confirmed in writing by the principal. Modifications communicated by telephone shall be at the risk of the principal.
5. Any extra charges or deductions caused by the modifications referred to in the previous paragraph will be charged or balanced in accordance with the prices current at that point in time.
ARTICLE 4 DELIVERIES
1. Deliveries are ex warehouse or factory, at the principal's option.
2. Times of delivery are only given as indications, and shall not be binding on the contractor; will not be excessive however, and will depend on the fact whether or not the contractor is able to normally carry out his work, and materials required are made available to him in time.
3. The contractor is under the obligation to meet his obligations as quickly as possible in the event of any delays in delivery, barring force majeure.
4. Goods that have not been collected after the time of delivery are kept at the principal's disposal and are stored at his risk and for account of the principal.
5. The principal is under the obligation to check goods for any defects and/or damage. The principal is obliged to have any defects and damage mentioned on the delivery note.
ARTICLE 5 OWNERSHIP
1. All goods supplied shall remain the property of the contractor to the exclusion of all others, and shall be kept at the principal's risk and for his account until the moment at which all claims that the contractor might have or will have against the principal are paid in full.
2. If the principal should fail to meet any obligation under the agreement, these conditions or otherwise, the contractor has the right to take back the goods without notice of default.
3. The principal is under the obligation to immediately inform the contractor of the fact that a third party should lay a claim to goods which are subject to the contractor's reservation of title.
4. In addition to that, and in order to guarantee a correct payment of any claims however caused, under the agreement with the principal the contractor shall have an ownership right providing security in all goods which were supplied by the contractor, and are still present at the principal's.
ARTICLE 6 SPLIT DELIVERIES
1. If the agreement concerns several goods, delivery may take place as a whole or in parts. In the latter case the contractor is entitled to issue an invoice for the split delivery, which is subject to the conditions of payment as referred to in article 7.
ARTICLE 7 TERMS OF PAYMENT
1. Unless expressly agreed on otherwise payment is to take place on delivery, after deduction of any advance or down payment. If the contractor sends an invoice, payment is to take place no later than 14 days after the date of the invoice.
2. The principal shall be in default without any required notice of default in whatever way, if he does not or not promptly meet his obligation to pay or any other obligation under the agreement entered into with the contractor, these general conditions or under law.
3. Payment shall always be made in payment of the oldest outstanding invoice.
4. Claims to pay the full price agreed on or part thereof shall be immediately due in the event of non-payment or late payment of an instalment agreed on, or if the principal should be declared bankrupt, should apply for a suspension of payment, if the principal's judicial disability has been applied for, if the goods and/or claims of the principal should be attached in any way, and in the event of his liquidation or if he should decease.
5. If an invoice has not been paid within 14 days after the date of said invoice, and after expiry of said term, the contractor is entitled to charge to the principal an interest for late payment of 1% per month with retroactive effect from the date of the invoice; a part of a month shall be charged as a full month.
6. In addition to the principal amount and interest for late payment the principal shall be obliged to pay any cost, both judicial and extrajudicial cost, caused by his non-payment or late payment. The extrajudicial cost of collection have been fixed at 15% of the principal amount, to a minimum of FL 50,-- increased by the VAT due. The extrajudicial cost of collection shall be due from that point in time at which the principal has been declared in default in whatever way.
7. The principal is obliged to acknowledge the entries of the contractor as correct, unless there should be proof to the contrary.
8. If the principal should continue to be in default, the contractor is entitled to cancel further activities.
9. At the contractor 's first request the principal is under the obligation to provide adequate security for the payment of the claim. If he should fail to do so, the contractor is entitled to cancel further activities until sufficient security has been provided.
ARTICLE 8 RESCISSION AND ANNULMENT
1. The principal is only entitled to rescind the agreement under an existing legal title.
Annulment by the principal is only possible if the contractor agrees to said annulment. If the contractor agrees to the annulment the latter is entitled to charge 10% of the principal amount on account of loss of profit. In addition to that the principal shall be under the obligation to compensate any cost already incurred in connection to the order by the contractor. In the event of an annulment the principal cannot lay a claim to that which has already been realized by the contractor
ARTICLE 9 LIABILITY
1. The contractor shall never be under the obligation to compensate any damage whatsoever caused either directly or indirectly by faults in goods supplied, unless he may be held liable for said damage under a legal title.
2. The contractor shall not be responsible for damage caused by his personnel or by auxiliary personnel hired by him, unless the damage was caused by serious misconduct or gross negligence on the part of those persons for whose actions the contractor is responsible.
3. The contractor shall never be liable for a higher amount that the price at which the goods have been supplied or the work has been carried out, to a maximum of Fl. 1.000.000,- for each instance.
ARTICLE 10 FORCE MAJEURE
1. If compelled by force majeure the contractor shall be entitled to rescind the agreement without any ensuing obligation to compensate any damage.
2. Force majeure is understood to include any circumstances beyond the contractor's control, such as threat of war, natural disasters, weather influences, strikes in the contractor's or a supplier's company, late or incorrect deliveries by suppliers, etcetera.
3. If the duration of the force majeure is limited, the contractor shall also be entitled to suspend the execution of the order until that point in time at which the force majeure has ended.
4. If the contractor had objected before the force majeure occurred, the contractor shall be entitled to invoice work already carried out and/or goods already supplied.
ARTICLE 11 TRANSPORT
1. Unless agreed on otherwise delivery is ex factory or warehouse.
2. Transport of goods is carried out at the principal's risk, unless delivery free house covered by an insurance has been agreed on.
ARTICLE 12 INDEMNIFICATION
1. The principal is under the obligation to indemnify the contractor against any liability on the part of the latter toward third parties resulting from goods supplied and work carried out by the contractor.
2. The principal shall also indemnify the contractor against claims by third parties concerning violations of any rights, including copyrights and/or patent rights, caused by the providing of drawings and/or computer programmes to the contractor.
ARTICLE 13 GUARANTEE
1. The contractor guarantees that goods supplied and work carried out meet the normal requirements of functionality and reliability in accordance with the applicable regulations.
2. In the event of defects in goods supplied the contractor shall be entitled to repair or replace said parts free of charge.
3. In the event of incorrect assembly or installation the defects caused shall be corrected by the contractor.
4. If goods or installations supplied by the contractor should not possess those properties promised by the contractor, the latter shall make such modifications that the goods or installations do not lack the properties promised any longer.
5. The contractor’s obligations under the guarantee shall no longer exist in the event of improper use of the goods and/or installations, no observance of directions for use, the use for other than the intended purposes, repairs carried out by a third party without the contractor's approval, modifications or the removal of numbers or seals. The duration of the guarantee is always expressly stated in the invoice.
6. If the contractor is not the actual manufacturer of the goods supplied, the contractor shall not be under the obligation to provide a guarantee beyond the scope of the guarantee given by the actual manufacturer of these goods.
7. If inspections and/or work is to be carried out after a complaint made by the principal, the latter shall bear the cost thereof if it should become clear that the goods supplied are not defective.
8. Repairs or replacements are only carried out in the Netherlands. Guarantees concerning goods abroad are limited to the cost of repairs or replacement and are limited to the amount that those would have been charged in the Netherlands.
ARTICLE 14 COMPLAINTS
1. Any complaints are to be submitted in writing within 8 days after the delivery of the goods. After expiry of this term the principal is considered to have approved of the delivery.
2. The principal will not be able to make any claims against the contractor under any circumstances after the principal has used part of the delivery, has treated or processed it or supplied it on to a third party.
3. The fact that a complaint is considered shall not affect the principal's obligation to effect payment.
ARTICLE 15 TESTING
1. In general the goods are tested in the factory in accordance with customary standard procedures.
2. Work carried out shall be tested at the site at which it was carried out.
3. The principal shall only be entitled to demand special tests or tests at other locations, if that has been expressly agreed on. If the principal wishes to be present during testing he is to communicate that in time.
4. A test report is drawn up in such cases. If the conclusion of the report results in a rejection the contractor shall be given the opportunity to offer the goods for a new test procedure after repairs and/or replacement work within a reasonable period of time.
5. Additional cost caused by specific tests, tests at other locations or delays for which the contractor cannot be held responsible is borne by the principal and shall be charged to the latter.
ARTICLE 16 CHANGES IN PRICES
1. Increases in prices of materials or semi manufactured goods required for the completion of the order, and changes in rates levied by entities invested with public authority, taxes, may be passed on to the principal.
2. In the event of a price increase of materials or semi manufactured goods to be supplied, the principal has the right to rescind the agreement within three months after the agreement has been entered into, but prior to the delivery of said goods.
ARTICLE 17 ADVICE AND INFORMATION ON THE GOODS
1. Advice and information is given free of any obligation and based on the contractor's best knowledge.
2. The contractor does not accept any liability for the advice given and information supplied.
3. The principal is obliged to make its own enquiry into the suitability of the goods to be supplied for the intended purpose.
ARTICLE 18 DISPUTES
All disputes arising from offers, agreements, deliveries and services carried out are subject to the judgment by the competent civil judge in the district in which the contractor has been registered, unless the principal lodges an objection to that.
ARTICLE 19 FINAL PROVISIONS
Dutch law is the sole law applicable to all agreements entered into under these conditions, quotations, offers made and deliveries carried out, except the Uniform Act on the International Sale of Goods.
These conditions have been filed with the "Kamer van Koophandel" of Tilburg under number 2999.