General sales and delivery terms T.H.O. OUDSHOORN B.V.
ARTICLE 1 EXPLANATION
Explanation of the following:
- Supplier; the private limited company TECHNISCHE HANDELSONDERNEMING OUDSHOORN B.V. trade register number 30088340
- Buyer; every buyer or customer of Supplier.
ARTICLE 2 APPLICATION
- Unless otherwise explicitly stated in writing, these terms apply to all agreements concluded with Supplier and all offers made.
- Any purchase conditions of Buyer are explicitly rejected.
- If any stipulation of these General Sales and Delivery Terms[...] is null and void or annulled, the other stipulations [...]of these General Sales and Delivery Terms shall remain in full force. Supplier and buyer shall consult in order to agree upon a new stipulation to replace the void or nullified stipulation which shall as far as possible reflect the original meaning of the void or nullified stipulation.
ARTICLE 3 OFFERS AND CONFIRMATIONS
- All offers and quotations made by Supplier are non-binding. A sale agreement can only be realised after Supplier has accepted or confirmed the order in writing, or when delivery will take place. All offers and quotations are valid up to 2 weeks after the date of the offer but are non-binding.
- Supplier is not liable for mistakes made and/or discrepancies in pictures, drawings or weights and sizes publicised in price lists and/or flyers and/or quotations and/or confirmations.
- The offers made by Supplier only relate to technical products. Supplier does not offer “engineering” services and does not offer assistance with assembling or mounting items, unless explicitly agreed upon.
- The pictures, drawings, flyers, offers, etc. provided remain the Supplier’s property. Without written permission from Supplier wholly or partially copying or extracting is not allowed. Also making these available to third parties is not allowed. This also applies to technical data provided by Supplier.
- Unless explicitly mentioned all offers are based on normal circumstances and normal working hours.
- Oral commitments by and agreements with subordinates of Supplier are non-binding unless confirmed later in writing by Supplier.
ARTICLE 4 CLAIMS
- Buyer must check or have the purchased goods checked when, or shortly after they have been received. Buyer must check if the supplied goods correspond with the sale agreement. The following must be checked:
- If the right goods have been supplied;
- If the quantities (for instance number and amount) of the supplied goods correspond with the sale agreement;
- If the quality of the goods supplied meet with the quality demands agreed upon, or in the absence of such demands, these meet with the normal standards that can be expected for these goods when used in normal circumstances or traded.
- If visible defects or shortages are detected, Buyer must report this to Supplier within 8 days in writing.
- Non-visible defects must be reported in writing within 8 days after discovery, but ultimately within 8 days after warrantee has expired.
- Submitting a claim does not affect the obligation to purchase and pay outstanding orders. Returning of goods is only allowed after written permission by Supplier.
- Items supplied earlier or items that have not been delivered cannot be included in a claim, even if these items have or will be delivered as part of the same (sale) agreement.
ARTICLE 5 WARRANTEE
- For goods purchased by Supplier from manufacturers and suppliers that are delivered to Buyer without being treated or processed, the warrantee given by the manufacturer or supplier of the goods is effective. Warrantee claims shall be passed on to the aforementioned manufacturer or supplier. In this case Supplier will refer to the findings of the supplier or manufacturer.
- In case of repair, reconditioning or overhauling of goods performed by Supplier, warrantee only applies to reliability of materials used unless explicitly otherwise agreed upon.
- In all other cases Supplier guarantees that sold goods are exempt from design, material and manufacturing defects for a period of 3 months after delivery. In case of goods showing evidence of a design, material or manufacturing defect Buyer has the right to claim repair. Supplier can choose to replace the goods if there are objections against repair. Buyer only has the right to demand replacement if repair is not possible.
- For damages resulting from a defect in the supplied goods the liability rules mentioned in article 11 apply.
- The warrantee expires if Buyer performs work adjustments or has work adjustments made to the supplied goods or uses the supplied goods in the wrong way or makes improper use of the goods or has the goods used improperly or in the wrong way. The warranty also expires if the goods are damaged on purpose or because of neglect or improper use. This also applies to damage as a result of the aforementioned.
- If Supplier replaces parts under warrantee, the parts that have been replaced become the property of Supplier.
- In case of alleged non-compliance with warrantee obligations on the part of the Supplier, Buyer is not released from obligations arising from the sale agreement with Supplier.
- If Buyer does not fulfil the obligations arising from the sale agreement or a related sale agreement, or does not fulfil the obligations in good time all warrantee commitments of Supplier resulting from the sale agreement expire.
ARTICLE 6 DELIVERY
- Indicated delivery times can never be considered as definitive delivery times, unless explicitly agreed upon. Buyer does not have any right to claim compensation because of exceeded delivery times nor does he have the right to cancel orders or terminate the sale agreement for this reason. When delivery time exceeds a period of 2 months, Buyer can declare the Supplier to be in default by certified mail and can summon the Supplier to deliver the goods within 10 days. If Supplier cannot meet these demands and cannot invoke force majeure on the grounds of which Supplier could not meet delivery times, Buyer has the right to terminate the agreement in writing after the aforementioned 10 days. Supplier cannot be held accountable for any compensation for damages. Termination of the agreement cannot take place if Buyer gives Supplier a new delivery time to deliver the item and if this delivery time is explicitly accepted by Supplier.
- Delivery is considered to have taken place as soon as Buyer receives a message from Supplier that the goods have arrived with Supplier or are present at Supplier.
- Unless otherwise agreed upon delivery is considered to be carriage paid ground floor Supplier.
- The goods travel for the risk of Buyer. If Buyer does not give instructions for transport within a reasonable time, Supplier is free to choose type of transpor
- If Buyer requests delivery of an order in a different way than usual, for instance express delivery or by special transport, or if special packing material is required, costs leading from this will be charged to Buyer.
- Supplier is allowed to supply the goods in partial shipments. If the goods are delivered in partial shipments, Supplier is allowed to invoice each delivery separately.
- Buyer is obligated to purchase the acquired goods when these are delivered to Buyer or when the goods are made available to him in accordance with the sale agreement. If Buyer refuses to accept the goods or is negligent in the provision of information or instructions necessary for delivery, the goods will be stored for the risk of Buyer. Buyer will be liable to pay all extra costs including storage costs. These costs cannot be deducted and do not affect payments due for the delivered goods.
- In the cases mentioned in article 10.1 or in the case of seizure of one or more assets of Buyer and/or if for other reasons Supplier has well-founded fear of Buyer not being able to fulfil his obligations towards Supplier, Supplier has the right to terminate the sale agreement or the remaining part that has not been delivered or (Supplier’s discretion) to suspend delivery for a maximum of 6 months, without judicial intervention being required, and has the right to reclaim the delivered goods without prejudice to the right of Supplier to claim compensation of actual costs, damages and interest.
ARTICLE 7 RETENTION OF TITLE
- The supplied good remain the property of Supplier until Buyer has fully complied with payment obligations following from the sale agreement.
- As long as ownership of the goods has not been transferred to Buyer, Buyer is not allowed to sell or pledge the goods or grant any rights on the goods to a third party.
- If Buyer does not fulfil his obligations or if Supplier has well-founded fear that Buyer will not fulfil his obligations and if retention of title lies with Supplier or a third party who has these goods at its disposal, Supplier has the right to collect or to have the goods delivered under retention of title collected. Buyer is obligated to cooperate fully under penalty of a fine of 10% of the amount due to Supplier for each day that the goods supplied under retention of title have not been fully returned to Supplier.
- If third parties have a claim to or wish to claim goods supplied under retention of title, Buyer is obligated to inform Supplier as soon as reasonably may be expected.
ARTICLE 8 PRICE
- Quoted prices apply for delivery ex-works Woerden NL and do not include Value Added Tax or separately charged packing and possible shipping costs.
- If a price increase in the offered or sold goods occurs between the date of the quotation and the date of purchase or between the date of purchase and date of delivery and if this increase is beyond control of Supplier, for instance because of increased prices of materials, production costs, import duties, taxes, foreign exchange rates, transport costs, etc., Supplier is authorised to pass on this increase to Buyer.
ARTICLE 9 PAYMENT
- Unless otherwise explicitly agreed upon in writing, payment must be made within fourteen (14) days after the date of the invoice. Payment must be made without payment discount or settlement.
- If payment is not made to Supplier within the agreed upon period of time, Buyer owes Supplier an interest of 12% per year on the amount due starting from the due date, without warning or notice of default being required, without prejudice to the right of Supplier to claim the due amount together with interest and judicial or extrajudicial collection costs immediately. The extrajudicial collection costs have been commonly agreed upon between parties to be 15% of the principle sum with a minimum amount of € 250,- without prejudice to the Value Added Tax. In the case of legal proceedings, the debt collection costs are owed above the legal costs.
- All payments made from Buyer to Supplier primarily serve to pay the costs owed, secondly serve to pay the interest due and subsequently serve to pay the principle sum owed.
- Supplier has the right to demand a down-payment of the principle amount or to demand payment in full. A down-payment can only be settled with the final invoice and not with interim invoices.
- In case of bankruptcy, suspension of payment or when statutory debt restructuring is applied to Buyer or has been requested, all amounts owed by Buyer to Supplier, of whatever nature, become immediately due.
ARTICLE 10 CANCELLATION AND RETURNING OF GOODS
- Cancelling orders is only possible if this has been previously agreed upon in writing with Supplier, without prejudice to the other terms mentioned in this article. If cancellation is accepted by Supplier, Supplier has the right to charge a cancellation fee of 15% of the net sales price excluding Value Added Tax.
- Products that have been damaged or have been used or from which the packaging has been damaged, become dirty or gone missing will not be accepted by Supplier. This also applies to cases in which it cannot be proven that Supplier provided the goods.
- Goods with a retail value less than € 25,- per piece excluding VAT will not be accepted by Supplier.
- When Buyer wishes to return goods, he has to inform Supplier in writing, accompanied with the sales invoice/reference.
- The return shipment will be taken up by Supplier if the shipment arrives back carriage paid within 14 days after delivery date.
- Goods that have been ordered by mistake can be returned within 14 days after delivery date, only if unopened, in original packing, unused, and accompanied with all related items and packing lists.
- Products and or goods that have been specially ordered by Supplier for Buyer cannot be cancelled for delivery.
ARTICLE 11 LIABILITY
- Liability of Supplier is always limited to the amount that is covered by his insurance, if and in so far as this liability is covered by his insurance policy. In the case that the insurance company will not compensate damages, liability of Supplier is limited to the invoice amount.
- Supplier is in no way liable for indirect damages of Buyer or of third parties due to shortcomings of supplied goods, this also includes consequential damage, loss of profit, lost savings and damages because of business interruptions.
- Supplier cannot be held liable for the working of machines and/or installations when supplied goods are applied or mounted.
- Supplier is in no way liable for (drawing) mistakes made in drawings, diagrams, etc. made available to Buyer. Supplier can also not be held liable for designs and/or engineering and/or working of machines unless explicitly agreed upon in writing between Buyer and Supplier.
- Supplier cannot be held liable for untimely or not fulfilling obligations resulting from the agreement with Buyer in the case that (untimely) fulfilling obligations is a direct or indirect result of force majeure. Force majeure includes, but is not limited to, the following events: decisions and measures of governments, labour disputes, shortage of raw materials or parts, transport delays or shortcomings, no or untimely supply from suppliers and other contractors of Supplier. If a situation of force majeure persists for a period longer that 6 months, Supplier has the right to cancel the agreement insofar as it concerns goods that have not been delivered yet.
ARTICLE 12 APPLICABLE LAW AND DISPUTES
- All agreements made by Supplier are governed by Dutch Law. The general sales and delivery terms are a supplement and, in so far as provisions of binding character do not direct otherwise, a deviation.
- Any disputes between Buyer and Supplier will be settled by the competent court in the place of residence of the Supplier, including any provisions that can be taken into consideration, save for exceptions under mandatory law.
Woerden, May 18th 2016