General Terms and Conditions Degreef & Partner, B.V., having its business address in ‘s-Hertogenbosch, the Netherlands
- Clause 1 Scope
- Clause 2 Offers
- Clause 3 Prices
- Clause 4 Delivery
- Clause 5 Payment
- Clause 6 Security and suspension
- Clause 7 Reservation of ownership
- Clause 8 Liability
- Clause 9 Warranties and guarantees
- Clause 10 Complaints
- Clause 11 Non-attributable breach
- Clause 12 Dissolution
- Clause 13 Applicable law and choice of forum
- Clause 14 Partial invalidity
- Intellectual Property Clause
Clause 1. Scope
- 1.1 These general terms and conditions apply to the formation and performance of all the obligations between Degreef & Partners B.V., a private company with limited liability, hereinafter referred to as ‘Degreef’, and its co-contracting party, customer or client, hereinafter referred to as ‘customer’, created either by contract or by law.
- 1.2 These general terms and conditions also apply to a juristic act on the part of Degreef, including a contract entered into with a party with whom a prior contract had been entered into and where these general terms and conditions or a previous version thereof had been declared to apply to that prior contract.
- 1.3 Degreef explicitly rejects the application of a customer’s own general terms and conditions. This means, therefore, that the general terms and conditions of a customer do not apply.
- 1.4 Derogation from these general terms and conditions is only permitted if such derogation is explicitly agreed upon in writing.
Clause 2. Offers
- 2.1 A data feed, estimate and offer on the part of Degreef are non-binding, unless Degreef explicitly states otherwise in writing.
- 2.2 A contract is only formed if and to the extent that Degreef accepts the order or Degreef has started to execute the order.
- 2.3 Degreef may charge a handling fee if the customer places an order. A handling fee is to the amount of €10 for each order. If the invoice amount exceeds €200, VAT not included, a customer is not charged a handling fee.
- 2.4 A pictorial representation and description of a product in the commercial literature sent by Degreef and a model shown of a product have no binding effect as regards the construction and finishing of a product to be delivered.
Clause 3. Prices
- 3.1 A data feed, pricelist and estimate is non-binding and may be changed without prior notification, unless parties have agreed otherwise in writing.
- 3.2 A price quoted by Degreef is carriage paid for one single address. The customer must have its principal place of business at that address or must be able to show that the address forms part of its business operations.
- 3.3 An estimate is submitted on the basis of the current prices as at the day of the juristic act. If after that day changes occur in the relevant cost factors, including but not limited to labour costs, taxes and other chargers, factory prices, materials, government measures, import duties or other charges, as well as any exchange rate fluctuations, Degreef has the right to increase the price accordingly with due observance of any statutory provisions in that regard and independent of whether Degreef could or could not have foreseen these changes. Such a price increase does not confer to the customer the right to dissolve the contract.
Clause 4. Delivery
- 4.1 A delivery is deemed to take place in ‘s-Hertogenbosch, the Netherlands, unless agreed otherwise in writing.
- 4.2 An agreed delivery date is only an indication and does not serve as a final deadline, unless explicitly agreed otherwise. It is for this reason that in case of a late delivery, Degreef must be sent, in writing, a notice of default in which the customer includes a reasonable time frame, during which Degreef is granted the opportunity to fulfil its delivery obligation.
- 4.3 Degreef is never liable for any loss or damage, including consequential loss or damage, which may arise as a consequence of a delayed delivery.
- 4.4 A product is at the expense and risk of the customer on the day on which the contract is formed. Degreef assumes in full the risk related to the transport of a product from ‘s-Hertogenbosch or from another location, if such other location is explicitly agreed upon in writing.
- 4.5 The customer is obliged to take immediately possession on delivery. If the customer fails to take possession of a delivered product, that product is stored at the risk and expense of the customer. The customer is at all times obliged to compensate Degreef for storage costs as well as any other costs Degreef has incurred as part thereof, including but not limited to carriage, shipping costs and administrative expenses.
- 4.6 The customer may cancel a placed order solely with the permission of Degreef. If and to the extent that Degreef agrees to the cancellation of a placed order, the customer is obliged to compensate Degreef for any costs, loss or damage Degreef has incurred to the amount of not less than 15% of the amount the customer would have had to pay if the order had been executed.
Clause 5. Payment
- 5.1 The customer must effect payment within a period of 14 days, effective on the day after the invoice date, unless agreed to otherwise. Payment must be effected without any deduction, adjustment or discount applied by the customer.
- 5.2 If the payment term is exceeded, the customer is automatically in default by operation of law, which means that a default notice is not required, and effective on the day after the due date, the customer must pay a contractual interest of 1% per month as well as the statutory commercial interest. In that case, Degreef also has the right to charge the customer every additional cost that may have to be incurred, including costs of legal assistance, as a result of any delay or failure to perform under the contract that is attributable to the customer.
- 5.3 A payment effected by the customer serves first and foremost to settle any claims Degreef may have against the customer in the unlikely event that Degreef has delivered a product to the customer without reserving ownership; subsequently, payment serves to settle any interest and costs; and finally it serves to settle those invoices which have been outstanding for the longest time, notwithstanding any different instructions on the part of the customer.
- 5.4 The customer may only object to an invoice within the agreed payment term.
- 5.5 The customer may only claim a bonus, which is to be determined by Degreef, on account of the quantity of products purchased or sales achieved, if the customer has paid the related invoice amounts.
Clause 6. Security and suspension
- 6.1 If during the performance of a contract Degreef has good cause to assume that the customer is about to fail to strictly meet its obligations, the customer is obliged to provide adequate security for the due performance of all its obligations under the contract immediately on demand of Degreef in a form of Degreef’s choosing.
- 6.2 If a customer refuses to provide the demanded security, Degreef has the right to suspend performance of its own obligations under the contract without any judicial intervention and to repossess the delivered products, notwithstanding its right to claim compensation for any work Degreef has performed under the contract and notwithstanding its right to claim compensation for costs, interests and losses.
Clause 7. Reservation of ownership
- 7.1 Degreef reserves ownership of any product it has delivered to the customer for as long as the customer has not satisfied in full every claim as regards the consideration for the product delivered or to be delivered by Degreef under a contract, as well as for any work performed or to be performed by Degreef under a contract and also as regards any claim on account of the customer failing to fulfil its obligations under such a contract. The reservation of ownership also relates to the delivery of products under an earlier or a later contract than the contract regarding a product the ownership of which is reserved.
- 7.2 If the customer is in default as regards the performances included in clause 7.1, Degreef has the right to repossess or arrange for the repossession of the products from the location where the products are at the time of such repossession and at the expense of the customer. The customer hereby grants Degreef an irrevocable authority to enter or to arrange the entry of the area used by the customer for the purpose of such repossession. All the costs related to the repossession are at the expense of the customer.
- 7.3 A product delivered subject to reservation of ownership may be used by the customer as part of its regular business operations. This means that such a product cannot be used as part of providing security, in whatever form, for any third-party claim.
- 7.4 If a customer disposes of a product subject to a reservation of ownership of Degreef, it must stipulate a reservation of ownership identical to that of Degreef.
- 7.5 A product delivered or to be delivered by Degreef subject to a reservation of ownership must be delivered—if possible—in such manner that the product is identifiable. The customer has the obligation to keep intact the identifiableness of that product (including but not limited to product numbering, labels, packaging in numbered boxes), until such day on which the customer has satisfied in full every claim as regards the consideration for the product delivered or to be delivered by Degreef to the customer under a contract.
- 7.6 If a customer is in violation of its obligations as described in clauses 7.4 and 7.5, it incurs an immediately due and payable penalty to Degreef to the amount of €10,000 (in words: ten thousand euros) and an incremental penalty of €2,500 (in words: two thousand five hundred euros) for each day that this violation continues, notwithstanding the right of Degreef to claim compensation in full.
Clause 8. Liability
- 8.1 Degreef’s liability is restricted to the warranty and guarantee obligations included in these general terms and conditions and is, moreover, restricted to the amount paid out by its liability insurer plus deductible and—if its insurer does not pay the claim—it is, in any event, restricted to the net invoice value of the products delivered and/or the work performed, unless there is intent or gross negligence on the part of Degreef.
- 8.2 Degreef is not liable for any loss or damage, directly or indirectly, including trading loss, consequential loss or damage, business interruption loss or a combination thereof, which the customer may incur as a result of Degreef’s failure to perform the contract in full or on time or as a result of Degreef’s performance of the contract is defective in other respects.
- 8.3 Degreef is not liable for a third party whose services it has engaged (auxiliary person), unless Degreef could be accused of negligence in its choice of such auxiliary person and the loss or damage is caused by intent or gross negligence on the part of such auxiliary person.
- 8.4 The customer indemnifies Degreef against any loss or damage Degreef may incur as a result of a third-party claim related to the products and services delivered by Degreef, which may also include: - a claim on the part of a third party, including an employee of the customer, for the loss or damage such third party may have incurred as a result of a tortuous act on the part of an employee of Degreef made available to the customer and working under the customer’s supervision or instructions; - a claim on the part of a third party, including an employee of Degreef, for the loss or damage such third party may have incurred in connection with the performance of the contract as a result of an act or omission on the part of the customer or as a result of unsafe working conditions within of the customer’s business; - a claim on the part of a third party for the loss or damage that may have been the result of a defect in the products or services delivered by Degreef and which products or services are used, altered or resold by the customer in addition to or in connection with the customer’s own products or services, unless the customer shows that the defect is not the result of the use, alteration or resell as referred to above.
Clause 9. Warranties and guarantees
- 9.1 As regards a product delivered together with a manufacturer’s warranty, the only warranty and guarantee provisions that apply are those stipulated by the manufacturer or importer. Degreef does not provide any warranty or guarantee in all other respects.
- 9.2 An obligation Degreef may have on account of a warranty or guarantee is restricted to a subsequent delivery, in part or in its entirety, if a product delivered shows material or manufacturing defects.
- 9.3 A warranty or guarantee does not cover a defect that may be caused by or be a full or partial consequence of a failure to observe operating and maintenance instructions or careless use, as the case may be, normal wear and tear as well as in the event of an accident or another external contingency, such as a fire or water damage.
- 9.4 A claim made by the customer on the basis of this clause leaves intact the customer’s payment obligations.
- 9.5 Any repair work not covered by the warranty or guarantee is charged to the customer.
Clause 10. Complaints
- 10.1 The customer may only complain as regards a missing or not-ordered product as well as regards an external observable defect in a product or a service delivered.
- 10.2 A complaint may only be made in writing within a period of 8 days, starting on the day after the day on which the customer has received the product or service or on the day after the day on which the customer should have been able to have such product at its disposal, providing a specification of the facts and on submission of written evidence, such as a packing slip, invoice, etc. Degreef must receive such written notice of complaint within the same period of 8 days, starting on the day after the day on which the customer has received the product or on the day after the day on which the customer should have been able to have such product at its disposal. If this 8-day time limit is breached, any right of complaint the customer may have is extinguished.
- 10.3 The customer may return a delivered product as its own risk and expense. Degreef accepts a returned product only if and to the extent it has agreed beforehand to this return in writing. A returned product must be delivered at the address specified by Degreef in its original packaging and in the condition Degreef had originally delivered the returned product to the customer.
- 10.4 A complaint made by the customer on the basis of this clause leaves intact the customer’s payment obligations and all its other obligations under a contract.
- 10.5 A deviation and a difference as regards quality, colour, size or finishing which are minor, standard commercial practice or technical unavoidable do not constitute a ground for a complaint.
- 10.6 The provisions included in this clause apply mutatis mutandis to the work or services performed by Degreef.
Clause 11. Non-attributable breach
- 11.1 Notwithstanding any statutory provisions, a non-attributable breach may include: a supplier’s continued default, a strike, an interruption in the energy supplies, fire, loss of or damage to a product while in transport, import and export barriers, machinery breakdown, government measures, as well as the consequences thereof, and also any circumstances as a result of which Degreef is impeded in the regular performance of a contract.
- 11.2 If such a non-attributable breach occurs, Degreef has the right to suspend performance of the contract for as long as such situation endures or to dissolve the contract in part or in its entirety, without any juridical intervention and without being obliged to pay compensation and without prejudice to the customer’s obligations to pay for the products delivered or the work carried out.
Clause 12. Dissolution
- 12.1 If the customer fails to fulfil in full, on time or satisfactorily any obligation under the contract, as well as if the customer is declared bankrupt, is granted a suspension of payment or is placed under a guardianship order, or the customer’s business operations are closed down or liquidated or form part of a legal merger or the customer loses control of its business operations to a substantive degree, Degreef has the right to dissolve the contract in full or in its entirety or to suspend performance of the contract, without being obliged to pay compensation and notwithstanding any rights vested in Degreef. If such a situation occurs, Degreef also has the right to demand immediate performance of what Degreef is entitled to.
- 12.2 If as a consequence of one or more circumstances not attributable to Degreef, full or partial performance turns out to be impossible, either temporarily or finally, Degreef has the right to dissolve the contract.
Clause 13. Applicable law and choice of forum
- 13.1 The laws of the Netherlands apply to a juridical relationship between Degreef and the customer, to the exclusion of any other law.
- 13.2 The Vienna Sales Convention (CISG) is hereby explicitly excluded.
- 13.3 A dispute that relates to a contract between the parties or to other obligations or these terms and conditions, or a combination thereof, is adjudicated by the competent court in ‘s-Hertogenbosch, the Netherlands.
Clause 14. Partial invalidity
- 14.1 If a provision of these terms and conditions is or becomes invalid or unenforceable, in part or in its entirety, on account of a mandatory provision in law of any applicable law or otherwise, or if such a provision loses its validity and enforceability at a later stage, the validity of the remaining terms and conditions of this contract remain intact.
- 14.2 The validity of the remaining terms and conditions of this contract also remains intact insofar it were to be found that these terms and conditions include one or more lacunae. In case of invalidity or non-enforceability of a provision or for the purpose of completing a lacuna, an appropriate provision applies on which the parties would have reached agreement to the extent that they would have included such provision governing the relevant issue in the scope of these terms and conditions.
- 14.3 If parties fail to reach agreement as regards the construction and meaning of a specific provision of the contract or of one these terms and conditions or a provision is invalid or unenforceable as referred to above, such provision must be construed as or must be considered to be a provision which does have the object and purport as originally assumed.
Intellectual Property Clause
- 1. All the information and records produced by Degreef whether or not as part of a specific work or delivery as well as any other intellectual property rights related to such work or delivery remain the unconditional property of Degreef. All these information and records may not be multiplied, showed to a third party or submitted to a third party, whether in part or in their entirety, regardless of the object forming the basis thereof without explicit written permission of Degreef. The customer is liable in respect to Degreef for any loss or damage that may arise as a result of a third party having seen or having at its disposal such information and records.
- 2. The information and records Degreef surrenders to the customer becomes the property of the customer and the customer may use such information and documents on condition that the customer has fulfilled its financial obligations with respect to Degreef. The intellectual property rights are vested in Degreef.
- If information and records are used which information and records Degreef has acquired from the customer and has received from a third party through the customer, the customer warrants and represents to Degreef that in using these documents no third-party intellectual property rights are infringed and the customer indemnifies Degreef against any claim that may ensue from such infringement. If a third party objects to the use by Degreef on account of an alleged right as referred to above, Degreef has the right, merely on that objection alone, to immediately cease using the documents concerned and to demand from the customer compensation for the expenses incurred, notwithstanding any claims Degreef may have as regards further compensation and without being obliged, in turn, to pay the customer any compensation.