General terms of Sales and delivery
GENERAL TERMS OF SALES AND DELIVERY OF MAJESTIC PRODUCTS B.V., JAN CAMPERTLAAN 6, 3201 AX SPIJKENISSE, FILED WITH THE COURT OF ROTTERDAM ON 6 NOVEMBER 2015, UNDER NO. 62/2015
Article 1: Applicability
These terms shall apply to all offers and all agreements entered into to buy or sell or concerning the performance of services by Majestic Products, hereafter to be referred to as “supplier”.
Deviation from these terms can only be agreed to in writing, in which case the deviation only applies to the individual agreement concerned.
General Terms of the buyer shall not apply, unless these have been accepted by the supplier in writing.
Article 2: Offers and agreements
All offers are non-binding and shall remain valid up to 2 weeks after the date of issue.
Agreements shall only become effective after express acceptance by the supplier. This express acceptance is proven by the written confirmation by the supplier, or by the fact that he performs the agreement.
In case of a difference between the (oral) order or instruction from the buyer and the written confirmation from the supplier, this confirmation shall prevail and be binding for the parties.
Article 3: Prices
The prices are expressed in euros, unless stated otherwise.
The prices apply to the performance or delivery scope stated in the agreement. More or special performances shall be calculated separately.
The prices are excluding VAT, excluding packaging and transportation costs and excluding possible travel and accommodation costs, unless expressly stated otherwise.
If after concluding the agreement, but before the (partial) delivery, one or more price determining factors, such as purchase prices for goods, material or part prices, wage costs, levies, taxes, exchange rates, etc. rise, the supplier shall be entitled to adapt the prices accordingly.
The Supplier shall inform the buyer in writing as soon as possible of the adapted price in accordance with this sub-clause.
Article 4: Delivery time and delivery
Delivery times stated by the supplier can never be regarded as final deadlines, unless specifically agreed otherwise.
A delivery period only starts on the date of the written confirmation by the supplier, or on the date on which all data, information, etc. needed from the buyer for the benefit of performing the order have been received by the supplier.
The delivery time is established in the expectation that the supplier can continue to work as foreseen at the time of the offer and that the required materials and data are supplied to him in time. Exceeding the delivery time can only give rise to compensation, if agreed in writing.
Delivery shall take place from the warehouse in Bergen op Zoom. The supplier shall not be responsible for the transportation and insurance of the goods and the transportation costs shall be the responsibility of the buyer, unless expressly agreed otherwise in writing. In the case of delivery ex warehouse, the risk for the goods is transferred to the buyer at the moment of loading them.
Services from the supplier to the buyer shall be performed on the basis of the description of the service in the agreement. The provision of a service binds the supplier to a best efforts obligation, however never to a result obligation.
The order to provide a service shall be considered as performed, if the period of the service provision as agreed in the agreement has passed or, in any case two work days after the supplier announced to the buyer in writing that the order to provide a service has been performed.
Article 5: Payment
Payment shall take place at the supplier’s office.
Payment shall take place within 30 days after the date on the invoice, unless otherwise agreed in writing.
At all times, the supplier shall be entitled, prior to delivery or continuing to fulfil the order, to demand, at his discretion, sufficient security for the fulfilment of the buyer’s payment obligations Refusal from the buyer to provide the demanded security, shall entitle the supplier to terminate the agreement by means of a written declaration to that purpose, without prejudice to the supplier’s entitlement to compensation for costs and lost profits.
If the buyer fails to fulfil his payment obligations, the supplier shall also be entitled to postpone the delivery and/or work activities, also if a fixed delivery time has been agreed.
Regulations from any authority whatsoever, that hinder the use of the goods to be delivered or already delivered, shall not alter the buyer’s financial obligation.
The buyer’s entitlement to set off possible claims against the supplier is expressly excluded.
The full purchase price for the goods or services can be immediately claimed in case of late payment within the agreed period, when the buyer goes bankrupt, applies for a moratorium or when the goods or claims of the buyer are seized in any way whatsoever or the buyer is being liquidated or dissolved.
In case of late payment, the supplier shall be entitled to charge the buyer with an interest of 1% per month, as well as all extrajudicial costs caused by the non-payment/late payment.
Article 6: Force majeure
If prior to or during the performance of the agreement circumstances arise that result in force majeure, whether or not foreseeable, as a result of which the supplier can no longer in all reasonableness fulfil his obligations from the agreement, the supplier shall be entitled to terminate the agreement or to postpone the delivery period. In such a case, the buyer shall never be able to claim any compensation.
In case of temporary force majeure, the buyer shall not be entitled to terminate the agreement. In case of temporary or permanent force majeure for the supplier, the buyer shall never be able to claim compensation for any damage suffered by him.
Amongst other things, the following cases are considered as force majeure: all involuntary operational failures or impediments, such as fire, natural disasters, impediments by third parties, full or partial strikes, illness of virtually all employees and furthermore generally all circumstances, events, causes and consequences that are outside the supplier’s control or power.
Article 7: Reservation of ownership
The buyer shall only become owner of the goods delivered or to be delivered by the supplier under suspensive conditions. The supplier shall remain owner of the goods delivered or to be delivered, as long as the buyer has the supplier’s claims concerning the receivables of the agreement, including claims concerning interest and costs.
As long as the buyer has the above-mentioned receivables, the buyer shall not be entitled to establish a pledge or non-possessed pledge on the goods delivered by the supplier and shall undertake, at the supplier’s first request, to notify third parties wishing to attach such rights, that he is not authorised to establish any such pledge.
If the buyer fails to meet any obligation from the agreement concerning the goods sold, the supplier shall be entitled to take back both the originally supplied and newly created goods, without any notice of default. The buyer shall authorise the supplier to enter the site where these goods are located.
The buyer shall be obliged to inform the supplier prior to filing for bankruptcy or applying for a moratorium. The buyer shall also immediately inform the supplier when he is declared bankrupt or has been granted a moratorium.
Article 8: Claim
In case of a visible fault in the performance, the buyer shall make a written claim within eight days after delivery. In case of an invisible fault, the buyer shall make a written claim within eight days after he discovered the fault or should reasonably have discovered the fault.
Complaints concerning invoices must be submitted in writing within eight days after the date on the invoice.
The supplier ensures reasonably normal quality requirements in case of normal use in accordance with the instructions of use for the goods delivered by the supplier to the buyer.
The buyer shall lose all rights and authorities that were available to him on the grounds of deficiency, if he has not submitted a claim and/or has not given the supplier the opportunity to inspect and repair the faults within the above-mentioned periods.
If a complaint from a buyer concerning the delivered goods is well-founded, the supplier shall be entitled to credit the buyer fully once the faulty goods have been returned carriage paid, or to repair the faulty goods or make a new delivery.
A consignment note, delivery note or similar document issued at delivery shall be assumed to state the amount of the delivery correctly, unless the buyer notified the supplier of his objection to that amount immediately and in writing.
The guarantee shall only apply if the buyer has complied with all his obligations towards the supplier.
Article 9: Liability
The supplier shall only be liable for damage suffered by the buyer that is the direct and exclusive result of a shortcoming that can be ascribed to the supplier, in the understanding that only the damage against which the supplier is insured or should in all reasonableness be insured against considering the practices applicable in the industry is eligible for compensation.
The supplier shall never be liable for consequential damage and indirect trading loss, stagnation loss, loss of orders, lost profits, processing costs, etc.
Article 10: Disclaimer for printing goods
The supplier does not guarantee properties such as life span, adhesion, gloss, colour, light/colour fastness or wear resistance, if the client has not stated – at the latest when the agreement was entered into – the properties or nature of the materials or products supplied by him and has provided incorrect information concerning the applied pretreatments, possible surface treatments and the conditions (such as temperature and printing time) under which the printing should take place.
Unless expressly agreed otherwise, the supplier cannot be held liable for disbonding, adhesion, contamination, change of gloss or colour, or for damage to materials and/or products received from the client in order to be printed or treated by him.
The supplier shall perform the assignments with utmost care, but cannot be held liable for possible bonding problems in due time.
Article 11: Non-collected goods
If the buyer does not collect the buyer’s goods held by the supplier against payment of the charges, in spite of the fact that these have been made available, the supplier shall be entitled to sell the goods or have them sold, after a written notice of default, one month after the goods have been made available, with the obligation to pay out the yield to the buyer, less any claims, storage costs included, due to the supplier.
Article 12: Applicable law, disputes
All agreements are subject to Dutch law.
The provisions of the Vienna Sales Convention shall not apply, and nor shall any other existing or future regulation regarding the purchase of movable tangible property, the operation of which can be excluded by the parties.
All disputes arising from offers and agreements, however named, shall be dealt with by the competent civil court in the place of business of the supplier, unless legal provisions require otherwise.