GENERAL TERMS AND CONDITIONS FOR DELIVERIES TO NON-CONSUMERS
Article 1 General
1. These Terms and Conditions apply to all tenders, offers and agreements between Souer Europe Accessories B.V., hereinafter referred to as the 'User', and any Contracting Party to which the User has declared these Terms and Conditions to be applicable, insofar as parties do not expressly agree in writing to deviate from these Terms and Conditions.
2. These Terms and Conditions also apply to agreements with the User for which it must involve any third parties.
3. These Terms and Conditions, moreover, apply to the employees and directors of the User.
4. The applicability of any Sales or other Terms and Conditions of the Contracting Party is hereby expressly excluded.
5. If one or more of the clauses in these Terms and Conditions is or are declared partly or completely invalid/is or are annulled, then the rest of these Terms and Conditions remains applicable. In such an event, the User and the Contracting Party will consult on one or more new clauses to replace the invalid or annulled clause or clauses. In this consultation process, the object and scope of the original clause or clauses will be honoured as fully as possible.
6. In the event of any uncertainty regarding the interpretation of one or more clauses in these Terms and Conditions, the relevant clause or clauses must be interpreted in line with the intent of this clause or these clauses.
7. In the event of any situation arising between the parties which is not provided for in these General Terms and Conditions, the situation must be interpreted in line with the intent of these General Terms and Conditions.
8. The fact that the User might not continually require strict compliance with these Terms and Conditions does not mean that the clauses therein are not applicable nor that the User loses any right to require strict compliance with these Terms and Conditions in other situations.
Article 2 Tenders and Offers
1 All tenders and offers by the User are non-binding, unless they include an acceptance term. A tender or offer expires if the relevant product becomes unavailable before acceptance of the tender or offer.
2 The User cannot be held to its tender or offer if the Contracting Party may reasonably understand that the tender or offer, of any part thereof, includes an obvious error or typo.
3 Unless indicated otherwise, the prices in a tender or offer are ex VAT and other government levies, costs related to the agreement, including expenses for travel and lodging, as well as for shipping and handling.
4 If the acceptance deviates in any part from the content of the tender or offer, then the User cannot be held to this deviating acceptance. In such an event there will be no agreement, unless indicated otherwise by the User.
5 In the event of a combined estimate, the User cannot be held to the performance of any part of the relevant assignment for the relevant price of that part. Tenders and offers do not automatically apply to future assignments.
Article 3 Contract term, delivery terms, performance and amendments
1. The agreement between the User and the Contracting Party is valid indefinitely, unless the nature of the agreement indicates otherwise or parties expressly agree otherwise in writing.
2. An agreed or indicated term for any activities or deliveries is never a final date. If the User exceeds a term, the Contracting Party must send the User a written notice of default. Herein, the User must be given a reasonable period in which to perform the agreement.
3. If the User requires information from the Contracting Party to perform the agreement, the performance term only starts after the Contracting Party has provided the User with the relevant correct and complete information.
4. Delivery occurs at the User's location. The Contracting Party must collect the relevant item or items at the time that the relevant item or items is or are made available to it. If the Contracting Party refuses to collect the relevant item or items, or fails to supply information or instructions necessary for the delivery, the User may store the relevant item or items at the expense and risk of the Contracting Party.
5. The User may involve third parties to perform any activities.
6. The User may perform the agreement in stages and invoice separately for performed stages of the agreement.
7. If the User performs the agreement in stages, it may suspend performance of any next phase until the Contracting Party agrees in writing with the results of the previous phase.
8. If it becomes clear during the performance of the agreement that the agreement needs to be amended to enable proper performance, then parties will consult timely on any relevant amendments. If the nature, scope or content of the agreement is amended, whether or not at the request or instruction of the Contracting Party, relevant authorities or any other party, and this amendment results in a qualitative and/or quantitative difference, then this may also influence the original agreement. As such, the original price might be increased or reduced. The User will provide any estimated price increases or reductions beforehand, where possible. Any amendment to the agreement might also influence the original performance term. The Contracting Party accepts the option of amending the agreement, including its price or term.
9. If the agreement is amended or supplemented, the User may suspend performance of this amendment or supplement until the competent employee of the User and the Contracting Party agree with the indicated price and other Terms and Conditions, including the date of the performance. The non-performance or untimely performance of the amended agreement does not constitute a default by the User and does not give the Contracting Party grounds to end the agreement. The User may refuse any request to amend the agreement, if this amendment leads to any qualitative and/or quantitative issues for any relevant activities to be performed or products to be delivered.
10. If the Contracting Party fails to comply with its obligations towards the User, it is liable for all damages (including costs) the User suffers resulting either directly or indirectly from this non-compliance.
11. If the User and the Other party agree on a set price, the User may nonetheless increase this price without the Contracting Party being allowed to end the agreement as long as the price increase is the result of a legal qualification or obligation, an increase in the prices of raw materials, wages, etc., or any other situation which was not reasonably foreseeable at the start of the agreement.
12. If the price increase, which is not a result of an amendment to the agreement, is more than 10% and occurs within three months of the start of the agreement, only the Counter Party that falls under the scope of Title 5, Section 3, Book 6 of the Dutch Civil Code may end the agreement in writing, unless the User is still willing to perform the agreement according to its original Terms and Conditions, the price increase is the result of a legal qualification or obligation on the part of the User or parties agree that the delivery will occur more than three months after the purchase.
Article 4 Suspension, Dissolution and Early Termination
1. The User may suspend performance of its obligations or dissolve the agreement if:
- the Contracting Party does not, not fully or not timely fulfil its obligations under the agreement
- the User, after the start of the agreement, becomes aware of circumstances which lead it to strongly suspect that the Contracting Party will not fulfil its obligations
- the Contracting Party does not provide timely or adequate security for the fulfilment of its obligations, if such security was requested at the start of the agreement
If the User can no longer be held to its obligations under the original conditions of the agreement due to a delay at the Contracting Party, the User may dissolve the agreement.
2. Furthermore, the User may dissolve the agreement in the event of circumstances which render performance of the agreement impossible or which render performance of the unamended agreement unreasonable.
3. If the agreement is dissolved, the claims that the User has towards the Contracting Party will be enforceable immediately. If the User suspends performance of its obligations, it will retain its legal and agreement-related entitlements.
4. If the User chooses to suspend or dissolve the agreement, it is not liable for compensation of any related damages and/or costs.
5. If the dissolution is attributable to the Contracting Party, the User is entitled to compensation of any related damages, including costs, which it suffers either directly or indirectly.
6. If the Contracting Party does not fulfil its obligations under the agreement and this non-fulfilment justifies dissolution of the agreement, the User may immediately dissolve the agreement without any obligation of payment of any damages or compensation, whilst the Contracting Party does have such an obligation due to default.
7. If the User terminates the agreement before the final date, it will consult with the Contracting Party on transfer of activities to be carried out to third parties, unless the early termination is attributable to the Contracting Party. If transfer of the activities results in additional costs for the User, these will be charged to the Contracting Party. The Contracting Party must pay these costs within the appointed term, unless indicated otherwise by the User.
8. In the event of liquidation, (a petition for) suspension of payment, bankruptcy, seizure lasting more than three months, debt restructuring or any other circumstance which prevents the Contracting Party having free reign over its finances, the User may immediately dissolve the agreement or cancel the order or agreement without being obligated to pay any damages or compensation. In such an event, the claims that the User has towards the Contracting Party will be enforceable immediately.
9. If the Contracting Party cancels an existing order in part or in full, the relevant item or items ordered or produced, plus any forwarding, removal and delivery costs, as well as any working hours reserved for performance of the agreement, will be charged to the Contracting Party in full.
Article 5 Force Majeure
1. The User cannot be held to performance of any obligation towards the Contracting Party if it is impeded herein by a circumstance which is not attributable to the User and for which it cannot be held responsible by any law, legal act or public opinion.
2. For the purpose of these General Terms and Conditions, force majeure is interpreted not only as prescribed by law and case law, but also as all external circumstances, foreseeable or not, which the User cannot influence but which impede the User's ability to fulfil its obligations. Strikes at the User or any third party are also included in this interpretation. Moreover, the User may rely on force majeure if the circumstance impeding any or further performance of the agreement occurs after the User should have fulfilled its obligations.
3. The User may suspend its obligations under the agreement for the duration of the force majeure. If the force majeure lasts more than two months, either party may dissolve the agreement without any obligation to compensate damages suffered by the other party.
4. Insofar as the User fulfilled or will be able to fulfil any part of its obligations under the agreement at the start of the force majeure, and insofar as the fulfilled or to be fulfilled part carries any independent value, the User may invoice this part separately. The Contracting Party must pay this invoice as if it were a separate agreement.
Article 6 Payment and Collection Charges
1. Payment must be carried out within 30 days of the invoice date, in the manner and currency stipulated by the User, unless indicated otherwise by the User. The User may invoice periodically.
2. If the Contracting Party fails to pay an invoice timely, this constitutes an ex officio penalty. In such an event, the Contracting Party will owe an interest of 1% per month, unless the legal interest is higher, in which case the Contracting Party will owe the legal interest. The interest on the amount to be paid is calculated from the moment the Contracting Party should have paid the invoice until the moment the Contracting Party has paid the invoice in full.
3. The User may apply any payments of the Contracting Party firstly for payment of costs, secondly for payment of interest in arrears and lastly for payment of the principal amount and current interest.
4. The User may refuse an offer of payment without penalty if the Contracting Party indicates a different order of application of the payment. The User may refuse full payment of the principal amount if this payment does not include simultaneous payment of the interest in arrears, the current interest and the collection charges.
5. The Contracting Party may never offset any payments it is owed by the User.
6. Any objections to the amount of an invoice do not suspend the relevant payment obligation. The Contracting Party that cannot rely on Title 5, Section 3, Book 6 (Articles 231 through 247) of the Dutch Civil Code, is not entitled to suspension of payment of an invoice for any other reason.
7. If the Contracting Party does not fulfil its obligations fully or timely, all reasonable out-of-court costs for fulfilment of the obligations will be charged to the Contracting Party. The out-of-court costs are calculated using the standard of the Dutch collection industry, currently set out in Rapport Voorwerk II. If the User has had to pay higher costs for the reasonable fulfilment of its claims, these actual costs fall under the scope of compensation. Any legal and collection costs will also be charged to the Contracting Party. Moreover, the Contracting Party will owe interest on the collection costs it owes.
Article 7 Retention of Ownership
1. All items delivered by the User under the agreement/agreements are property of the User until the Contracting Party fulfils all its obligations under its agreement/agreements with the User.
2. Items delivered by the User which fall under the retention of ownership in accordance with Section 1, may never be sold or used as payment. The Contracting Party may not pawn or charge any items which fall under the retention of ownership.
3. The Contracting Party must always do everything reasonably possible to secure the User's ownership.
4. If any third party seizes any items which fall under the retention of ownership of tries to charge any claim on these items, the Contracting Party must inform the User of this immediately.
5. The Contracting Party must insure items which fall under the retention of ownership against fire, explosion and water damage and theft. Also, it must provide the User with the relevant insurance policy on demand. In the event of any pay-outs from the insurer, the User is entitled to these pay-outs. Insofar as necessary, the Contracting Party must assist the User in any way in the above-mentioned situation.
6. In the event that the User wishes to exercise its right of retention, the Contracting Party gives the User and any third parties involved by the User unconditional and irrefutable permission to enter all locations where the User's property is held and to reclaim such property. If the User delivered the items in consignment, the Contracting Party will return such items to the User at its own cost at the latest three months after delivery, unless such items have been sold to a customer or fall under a different understanding expressly agreed upon in writing.
Article 8 Guarantees, Checks and Claims, Term of Limitation
1. The items to be delivered by the User comply with the usual, reasonable requirements and standards applicable at the time of delivery for normal usage in the Netherlands. The guarantee set out in this Article applies to items to be used in the Netherlands. In the event of usage outside the Netherlands, the Contracting Party must verify whether the items can be used properly and comply with local requirements. In such an event, the User may set different guarantee and other terms concerning the items to be delivered or activities to be performed.
2. The guarantee set out in Section 1 is valid for two weeks after delivery, unless the nature of the delivered item/items result in a different term or the parties have agreed otherwise. If the guarantee provided by the User applies to an item produced by a third party, then this guarantee is limited to the guarantee provided by the producer, unless indicated otherwise.
3. Any guarantee is void if a defect arises as the result of injudicious or incorrect usage, usage after the expiry date, incorrect storage or maintenance of the item by the Contracting Party and/or any third party if, without the written consent of the User, the Contracting Party or any third party amended or tried to amend the item, added items to the item which should not have been added or processed/adapted the item in deviation from the prescribed manner of processing/adaptation. Moreover, the Contracting Party cannot rely on the guarantee if the defect arises out of or as a result of circumstances outside the User's control, including weather conditions (such as extreme rainfall or temperatures).
4. The Contracting Party must check the delivered item/items the moment it is/they are made available to the Contracting Party or the relevant activity/activities are performed. This check must include whether the quality and/or quantity of the delivered item/items complies with the agreement and the conditions agreed upon herein by the parties. Any visible defects must be reported in writing to the User within seven days of delivery. Any invisible defects must be reported in writing to the User immediately, but in any case within fourteen days of their discovery. The relevant report must describe the defects as detailed as possible, thereby enabling the User to respond adequately. The Contracting Party must allow the User to investigate a complaint.
5. Timely claims by the Contracting Party do not suspend its payment obligation. In the event of any claims, the Contracting Party must nonetheless accept and pay the item/items ordered.
6. If a defect is reported after the period above, the Contracting Party is not entitled to repair, replacement or compensation.
7. If it is determined that an item is defective and the Contracting Party has made a timely claim thereupon, the User will, within a reasonable term of return of the item or, if return is reasonably impossible, within a reasonable term of a written report on the defect by the Contracting Party, replace or repair the item or compensate the Contracting Party for the defective item. In the event of replacement of a defective item, the Contracting Party must return it and ownership of it to the User, unless indicated otherwise by the User.
8. If it is determined that a complaint is unjustified, the relevant costs, including the costs of investigation, made by the User will be charged in full to the Contracting Party.
9. After the term of limitation, all costs of repair or replacement, including handling, shipping and call-out costs, will be charged to the Contracting Party.
10. In deviation from the legal terms of limitation, the term of limitation for all claims and appeals on the User and any third parties involved in the performance of an agreement by the User is one year.
Article 9 Liability
1. If the User is liable, this liability is restricted to the conditions set out in this Article.
2. The User is not liable for any damages which are the result of incorrect and/or incomplete information provided by the Contracting Party.
3. If the User is liable for any damages, its liability is restricted to a maximum of twice the invoice amount of the order or the part of the order to which the liability applies.
4. The User's liability is always limited to the amount which may be paid out by its insurer.
5. The User is only liable for direct damage.
6. Direct damage only includes the reasonable costs of determining the cause and scope of the damage insofar as the determination relates to damage as set out in these Terms and Conditions; reasonable costs made to have the User's sub-standard performance comply with the agreement, insofar as these are attributable to the User; and reasonable costs made to prevent or reduce damage, insofar as the Contracting Party proves that these costs have led to a reduction of direct damage as set out in these General Terms and Conditions.
7. The User is never liable for indirect damage, including consequential damage, loss of profits, missed savings and damage from corporate stagnation.
8. The restrictions of liability set out in this Article do not apply if the damage is a result of intent or gross neglect of the User or its managerial employees.
Article 10 Transfer of Risk
The risk for loss, damage or depreciation transfers to the Contracting Party at the moment that any items are placed under the control of the Contracting Party.
Article 11 Disclaimer
1. The Contracting Party safeguards the User against any claims by third parties who suffer damage as a result of performance of the agreement, if the cause of the damage is not attributable to the User.
2. If the User is approached by a third party in this context, then the Contracting Party must assist the User in and out of court and do all that it might reasonably be expected to do. If the Contracting Party fails to take appropriate measures, the User may take these measures itself without giving notice of default. All costs and damages that the User and third parties suffer as a result will be at the expense and risk of the Contracting Party.
Article 12 Intellectual Property
1The User does not provide any guarantee that the usage and/or sale and/or resale of any items it delivers does and/or do not constitute an infringement on the intellectual property rights of third parties. Any liability of the User towards the Contracting Party regarding infringements of intellectual property rights of third parties through any items it delivers is hereby expressly excluded. The Contracting Party safeguards the User in full against all damages and costs the User suffers, if and when the User is approached by third parties regarding the sale by the Contracting Party of any items the User has delivered.
Article 13 Applicable Law and Disputes
1. All legal relationships in which the User is a party are governed by Dutch law, even if an agreement is performed in part or in full outside the Netherlands or if another party in the legal relationship is located outside the Netherlands. Applicability of the Vienna Sales Convention is expressly excluded.
2. The court in the city of the User's registered address is exclusively authorised to hear any disputes, unless the law stipulates differently. Nonetheless, the User may bring the dispute before the legally authorised court.
3. Parties will only bring a dispute before the court after they have done their utmost to settle the dispute amongst themselves.
Article 14 Location and amendment
These General Terms and Conditions have been filed with the Netherlands Chamber of Commerce in Eindhoven, under number 57080704, for
Souer Europe Accessories B.V.
Esp 106, 5633AA Eindhoven
The Netherlands, T. +31(0) 40 2984790