English Translation of General Terms and Conditions of sale, delivery and payment of Hoogendijk Import Export B.V. ,domiciled at Vlaardingen, Netherlands and registered at the Chamber of Commerce at Rotterdam, Netherlands, under number 24254312.
- All our offers, contracts including subsequent agreements and their implementation shall be exclusively subject to the conditions under consideration. Any deviations and/or additional stipulations or changes shall be agreed upon with us expressly in writing.
- By principal‘ in these terms and conditions is understood : any (legal) entity which has entered into, or expressed the intention of entering into, a contract with our company, including its representative(s) authorised agent(s), assignee(s) and heirs.
- The principal’s own terms and conditions remain intact as far as far as they are not in conflict with the terms at hand. In case of dispute our terms and conditions will at all times prevail, even if precedence has been claimed otherwise.
- In case of dispute between the contents of an agreement closed between us and the principal, and these general terms and conditions, the terms of the general conditions shall apply.
- All offers made by us, in any form whatever, are free of all obligation, unless expressly stated otherwise.
- In case an offer is accompanied by estimate, plan, catalogue or other documents, these will remain our property at all times and must be returned at our first request. Without our authorisation all forms of reproduction and examination by any third party is prohibited.
- Forwarding of offers and/or (other) documentation do not bind us to accept an order. The principal will be informed by us of non-acceptance as soon as possible, but at any rate within a period of 3 working days after receipt of an order.
- We reserve the right to deliver by reimbursement or to refuse orders without explanation.
- Subject to the following stipulations, a contract with us will be established only by our acceptation or confirmation in writing or by electronic means, while the date of confirmation shall be decisive.
- The confirmation of order is held to state the contract in an exact and complete way, unless the principal has immediately pro-tested against it in writing.
- Any subsequent supplementary agreements or modifications shall be considered binding only if confirmed by us in writing or by electronic means.
- For transactions for which according to their nature and volume, no offer or confirmation of order is sent out, the invoice is held to reflect the contract in an exact and complete way unless complaints are submitted within five working days after the date of invoice.
- If the principal, after closing a contract, – exclusively at our discretion – appears or proves to have insufficient credit to allow the monetary fulfilment of the contract, we are not in any way bound to deliver the goods ordered, or as the case may be, we reserve the right to postpone delivery until sufficient payment security has been obtained, as stipulated in section 5 below.
- On entering into, or subsequent to this contract, we have the right, before complying with our obligations any further, to demand security that the principal will be able to meet financial- as well as all other obligations.
- We are authorised – should we consider it necessary or desirable – after consultation with the principal, to call upon others, including third-party suppliers, for the correct implementation of the order made to us pursuant to the contract, the costs of which shall be charged to the principal in conformity to the quotation made.
- Unless otherwise stipulated our prices are based on delivery from our company, store or other warehouse,- exclusive of VAT, import duties, other taxes, levies and duties, exclusive of costs of packaging, (un) loading, transport and insurance. Any alterations in the exchange rate shall be on-charged.
- In case of increases in one or more of the cost price factors, we reserve the right to raise the agreed order price accordingly; taking into account any relevant legal obligations, with the understanding that future price rises already known when the order was confirmed, shall be stated.
- Goods bought are at the principal’s risk from the moment of establishing the contract but in any case from the moment the goods to be delivered are at the principal’s disposal. Unless otherwise agreed, delivery will take place at the principal’s resi-dence/company. Carriage paid delivery will only take place if and in so far as this has been agreed with the principal and is indi-cated on the invoice or other document.
- The principal is obliged to check the delivered goods or packaging immediately upon receipt, and if not, in any case within 5 working days, for any shortcomings and/or damage, or to carry out said check within 5 working days after having been informed by us that the goods are at the disposal of the principal.
- Any apparent outward shortcomings and/or damage to the delivered goods and/or its packaging at delivery shall be stated by the principal on the delivery receipt, the invoice and/or the transport documents; the absence of said statement shall be considered the equivalent of approval by the other party of the delivery, and no claims shall thereafter be considered.
- We are entitled to deliver by instalments, which we may invoice separately.
- Statement of the time of delivery always takes place approximately. An agreed delivery time may never be considered a deadline, unless expressly agreed otherwise in writing. In case delivery is not made on time we shall be declared in default and shall be given a reasonable period of time for rectification.
- Exceeding the agreed delivery time does not in any case give the right to compensation, unless specifically otherwise agreed upon in writing.
- If the goods, after the expiration of the time of delivery, have not been collected by the principal, they will be stored at his dis-posal, at his expense and risk.
- In the absence of further instructions to us by the principal, the method of transport, shipping, packaging, etc. shall be deter-mined by us, as prudent and reasonable men.
- Any specific preferences on the part of the principal concerning transport / shipment shall be carried out only if the other party has declared itself prepared to bear the extra costs thereof.
- We have the right to charge payment for any durable packaging materials used, which shall be duly listed on the invoice. If we charge this payment, it will be settled upon return of the undamaged packaging.
- Force majeure in this respect is taken to mean the following:
- All circumstances, unforeseen or occurring independent of the will of the parties, at any rate circumstances for which we cannot be held liable, neither by law, nor by legal act, nor for which according to general customs of the trade we are responsible, through which compliance with the agreement can no (longer) reasonably be (temporarily) demanded by the other party. Circumstances which are/were not expected by us and which are beyond our influence are taken to mean, amongst other things, labour strikes, stagnation in supply of products, harbour strikes and fire.
- If, in our opinion, the force majeure will be of a temporary nature, we have the right to suspend the implementation of the agreement until such time that said force majeure is no longer in effect.
- If, in our opinion, the force majeure is of a permanent nature, we reserve the right to declare the contract to be dissolved for the part of the obligations that has not been met. In that case, parties have no right to claim compensation to one another for damages incurred, or to be incurred as a consequence of the dissolution.
- We have the right to claim payment for work performed under the agreement concerned prior to the occurrence of the force majeure or the circumstances causing the force majeure.
- The party who understands it may be subject to force majeure shall immediately inform the other party of this fact.
- Unless otherwise agreed upon in writing, we are copyright holder as well as holder of all rights of intellectual and industrial property regarding our offer, as well as with respect to all drawings, moulds, lithos, designs, sketches, models, etc., produced for the implementation of the order by us or on our behalf, regardless of any production costs charged to the principle. The abovementioned data may not be copied, used or shown to third parties without our express written consent.
- The principal will secure us completely from all direct and/or indirect consequences of claims of third parties to us on account of violation of principals guarantee as stipulated overhead.
- 3.The principle shall fully indemnify us against all direct and indirect consequences of claims that may be made against us by third parties on the basis of breach of the guarantee mentioned in section 2 of this chapter, which includes, amongst other things, the principal entering into any legal procedures (if necessary in our name), at his own expense and at his own risk, and compensating us for any damage following claims which third parties might (wish to) hold against us for breach of any rights.
DEFERMENT, DISSOLUTION AND MATURITY
- Should the principal be unable to, or not timely or insufficiently, meet one or several of his demands following the agreement, we reserve the right to defer delivery of products and/or without prior declaration of default and without court-intervention to dissolve the agreement with immediate effect, by means of a written statement (whether or not by electronic means) to the principal, without being held responsible for any compensation and irrespective of any other due rights, including the right to claim full compensation.
- Should the principal, at the moment of dissolution, already have received products following the fulfilment of the agreement, the agreement will be dissolved in part only, in particular for that part of the agreement that has not yet been executed. Invoices sent for the part of the agreement that has been fulfilled remain due without prejudice and are payable immediately upon dissolution.
- All our claims, including in particular those regarding payments, are immediately and fully due if the principal does not meet any obligation following an agreement with us, as well as in case of (i) the principal’s bankruptcy or application for moratorium, (ii) seizure of goods or claims of the principal, (iii), the principal (legal entity) is dissolved or wound up and (iv) the principal (natural person) applies to the court for debt restructuring, is put in receivership or in case of decease. In all these cases, we additionally reserve the right to dissolve the agreement with immediate effect, without court intervention and by means of a written statement (whether or not via electronic means) to the principal, or as the case may be, to defer our obligations following the agreement, all our other rights remaining in full force, including the right to demand fulfilment or the right to claim full compensation.
- We shall only be held liable for damage to the principal which is the direct and sole consequence of shortcomings for which we are accountable.
- We shall never be liable for damages, of any kind, caused by us on the basis of incorrect or incomplete data supplied by the principal. Neither shall we be liable for damages arisen from or caused by the use that is made of the goods delivered or by the unsuitability thereof for the purpose for which the principal has acquired them.
- Should we be held liable, our liability shall never exceed the total invoice net worth of the order involved. In any case our liability shall always be limited to the maximum pay-out by our insurance company in the case concerned.
- As/when the occasion arises, only direct damages will qualify for compensation. Thus, we exclude liability for any consequen-tial/trading loss, such as damage caused by stagnation and loss of profits, as well as damage to immovable and moveable assets or persons, suffered by the principal or by third parties. Furthermore, we exclude liability for damage caused by employees (subordinates) and relief crews (non-subordinates).
- Just by acceptance of the goods delivered by, or in the name of the principal, we shall be released by the principal from any claims of third parties to whom (parts of the) goods are forwarded or who will use the goods, which includes, amongst other things, the principal entering into any legal procedures (if necessary in our name), at his own expense and at his own risk, and compensating us for any damage following claims which third parties might (wish to) hold against us for breach of any rights.
- Complaints shall be considered by us only in writing or by electronic means and if they have reached us – directly – within a period of seven working days, or as the case may be, within seven working days after the principal should reasonably have noticed any faults, and if they include a specification of the nature and cause of the complaints in question.
- Complaints about invoices shall likewise be submitted in writing or by electronic means within seven working days after invoice date.
- After the expiration of the periods listed in section 1 and 2, it shall be assumed that that the principal has approved of the deliv-ery and / or invoice, in which case complaints shall no longer be considered by us.
- Should the complaint be considered valid by us, – taking into account the stipulations of the chapter on liability (limitation) – we shall then only be obliged yet to comply with the delivery contracted.
- Only if, and in so far as, the complaint is considered valid shall the principal’s obligation to pay be suspended until such time as the complaint has been resolved.
- Return of the delivery shall be permitted only with our prior written permission, according to terms determined by us.
- All goods delivered remain our property, as long as the principal fails or will fail to meet his obligations following any agreement closed with us, including in particular the case in which the principal fails, or will fail, to pay for deliveries and activities performed or to be performed, as well as until claims following failing to meet such agreements, for example claims due to damages, fines, interest and costs, have been paid.
- If and in as far as the stipulation stated in section 1 should (in part) contain an extended retention of title which would be unlawful, we reserve, as collateral for any obligation to be met by the principal following an agreement closed with us and as security (for the payment) of any other existing or future claim, in whatever capacity, subsequently and in any case – by the arising of the claim – an unpropertied right of distraint on all goods delivered by us and if necessary, on goods in which goods supplied by us have been incorporated or of which they form a part, which right of distraint will be vested by registration of our written acceptance of an order supplied by the principal, which written acceptance thus counts as private contract within the meaning of the law.
- The goods may be sold or used by the principal within the framework of its normal business activities but shall neither be given as collateral nor provided as a security for the claims of a third party, as long as a retention of title and/or unpropertied right of distraint attach to those goods.
SPECIFIC RESOLUTIVE CONDITION AND EXTENDED RETENTION OF TITLE (BELGIUM AND GERMANY)
- For principals/debtors domiciled in Belgium – in as far as is necessary in addition to the stipulations of the previous chapter – the specific resolutive condition applies, which for Flanders and the Walloon provinces of Belgium reads as follows in the Dutch and French language:
- Vlaanderen: In geval van niet-betaling op de vervaldag, zal de verkoop door ons als nietig kunnen worden beschouwd van rechtswege en zonder aanmaning. De zaken blijven eigendom van de verkoper tot volledige betaling van de prijs. Alle risico’s zijn te laste van koper. De betaalde voorschotten blijven de verkoper verworven ter vergoeding van mogelijke verliezen bij wederverkoop.
- Wallonie: En cas de non-paiement à l’échéance le vendeur peut considérer celle-ci comme résolue de plein droit et sans mise en demeure. Le vendeur se réserve la propriété des marchandises jusqu’au complet paiement. Les risques sont à charge de l’acheteur. Les acomptes pourront être conservés pour couvrir les pertes éventuelles à la revente.
- For principals/debtors domiciled in Germany – in as far as is necessary in addition to the stipulations of the previous chapter – the specific resolutive condition applies, which in the German language reads as follows:
- Wir behalten uns das Eigentum an den gelieferten Waren bis zur vollständigen Tilgung aller uns aus der Geschäftsverbindung zustehenden und noch entstehenden Forderungen, gleich aus welchem Rechtsgrund, vor.
- Der Kunde ist zur Verarbeitung unserer Erzeugnisse oder deren Verbindung mit anderen Erzeugnissen im Rahmen seines ordnungsgemäßen Geschäftsbetriebes berechtigt. An den durch die Verarbeitung oder Verbindung entstehenden Gegenständen erwerben wir zur Sicherung unserer in Ziffer 1 genannten Ansprüche Miteigentum, das der Kunde uns schon jetzt überträgt. Der Kunde wird die unserem Miteigentum unterliegenden Gegenstände unentgeltlich verwahren. Die Höhe unseres Miteigentumsanteils bestimmt sich nach dem Verhältnis des Werts unseres Erzeugnisses und dessen durch die Verarbeitung oder die Verbindung entstandenen Gegenstandes.
- Wir gestatten unseren Kunden widerruflich die Weiterveräußerung im gewöhnlichen Geschäftsgang. Dieses Recht erlischt im Falle einer Zahlungseinstellung. Der Kunde tritt uns schon jetzt alle ihm aus der Weiterveräußerung zustehenden Forderungen mit Nebenrechten ab. Die abgetretenen Forderungen dienen der Sicherung aller Ansprüche nach Ziffer Der Kunde ist zum Einzug der abgetretenen Forderungen berechtigt, solange wir diese Ermächtigung nicht widerrufen haben. Die Einziehungsermächtigung erlischt auch ohne ausdrücklichen Widerruf, wenn der Kunde seine Zahlungen einstellt. Auf unser Verlangen hat uns der Kunde unverzüglich schriftlich mitzuteilen, an wen er Ware veräußert hat und welche Forderungen ihm aus der Veräußerung zustehen, sowie uns auf seine Kosten öffentlich beglaubigte Urkunden über die Abtretung der Forderungen auszustellen.
- Zu anderen Verfügungen über die in unserem Vorbehaltseigentum oder Miteigentum stehenden Gegenstände oder über die an uns abgetretenen Forderungen ist der Kunde nicht berechtigt. Pfändungen oder sonstige Rechtsbeeinträchtigungen der uns ganz oder teilweise gehörenden Gegenstände hat der Kunde uns unverzüglich mitzuteilen.
- Wir sind jederzeit berechtigt, die Herausgabe der uns gehörenden Waren zu verlangen, wenn der Kunde mit einer Zahlung in Verzug kommt oder sich seine Vermögenslage wesentlich verschlechtert. Machen wir von diesem Gebrauch, so liegt- unbeschadet anderer zwingender Gesetzesbestimmungen – nur dann ein Rücktritt vom Vertrag vor, wenn wir dies ausdrücklich erklären.
- Übersteigt der Wert der für uns bestehenden Sicherheiten unsere Forderungen insgesamt um mehr als 20%, so werden wir auf Verlangen des Kunden insoweit Sicherungen nach unserer Wahl freigeben.
- Contrary to the legal limitation, every legal claim by the principal against us is limited to one year, to be calculated from the day on which the goods were delivered to the principal, at least from the day on which the goods were made available to the principal by us.
- Unless otherwise agreed in writing, payment should be made cash on delivery, without any discount, or by means of a deposit or transfer to a Bank or Giro account we may specify, within 30 days after the invoice date.
- The exchange rate date indicated on our bank / giro statements are decisive and are therefore considered to be the date of pay-ment.
- All payments made by the principal are first used in settlement of any interest, secondly in collecting costs made by us, and thereafter to settle any outstanding invoices, starting with the oldest unpaid invoice.
- Regardless of the payment conditions agreed upon and in addition to the stipulations of the article entitled CONTRACT, the principal is obliged to provide security for payment to our satisfaction. Should the principal be unable to do so within the term set, he will immediately be declared in default. In that case, we reserve the right to dissolve the agreement and to recover the damage from the principal.
- The principal’s right to settle any claims is excluded, except in the case of bankruptcy on our side.
INTEREST AND COSTS
- If payment has not been made within the period specified in the previous article/section, the principal will be legally in default and liable for interest of 1% (one percent) per month (or part of a month) from the date of the invoice on the unpaid amount. If the statutory interest turns out to be higher, this will be the interest payable by the principal.
- All legal and extra-legal costs shall be at the expense of the principal. The extra-legal collection costs will be at least 15% of the amount due, including the aforementioned interest, taking into account an absolute minimum of EUR 150.-.
ADDITIONAL TERMS AND CONDITONS
- Should one of the stipulations mentioned in these terms and conditions be null and void or defeasible the other terms and conditions remain fully applicable. If this happens, parties will replace a null and void or defeasible stipulation by one that reflects as closely as possible the purpose and intent of these terms and conditions.
- In case of controversy between the Dutch text of these terms and conditions and any translation thereof, the Dutch text shall prevail.
- In all cases, the most recent filed version of these terms and conditions will apply.
- Unless otherwise stipulated in these terms and conditions, all our offers, agreements and the performance thereof will be governed by the Law of the Netherlands only.
- All disputes, including those which are regarded as such by one party only, resulting from or connected with the contract to which these conditions apply or the conditions involved themselves and their explanation or performance, both of factual and judicial nature, will be subject to the jurisdiction of the Civil Court of our domicile, unless the District Court has been appointed to adjudicate in such disputes.
- Parties may agree to use a different way of settlement, for example arbitration or mediation.