General Conditions of Sale, Supply and Payment of
de besloten vennootschap met beperkte aansprakelijkheid Van Keulen Kooien (Interieurbouw) Nijverdal B.V. (Van Keulen Interieurbouw Nijverdal Company Limited) at
Nijverdal (Hellendoorn district), hereinafter the “Company”
The original Dutch text of these General Conditions shall prevail in case of a disagreement about the meaning of any provision of these General Conditions.
Art. 1. DEFINITIONS
1. The Company means “Van Keulen Interieurbouw Nijverdal Co., Ltd.”, having its statutory office at Nijverdal and is hereinafter also defined from time to time as “supplier”.
2. The “purchaser” means the person to whom supplier sells or delivers goods as well as the person for whom or for whose account supplier undertakes works.
Art. 2. APPLICABILITY
1. These General Conditions apply to all offers as well as contracts for the hire of work, of whatever nature, including but not limited to, hire of work, agreements of sale and purchase made or entered into by supplier.
2. No amendment of these General Conditions is valid unless in writing.
3. General Conditions of purchaser will not apply except where such conditions are expressly accepted in writing by supplier and to the extent those conditions do not contradict or deviate from, these General Conditions in which case these General Conditions only apply irrespective of any stipulation which provides otherwise.
Art. 3. OFFERS
1. All offers are non-binding on supplier except if the offer provides otherwise in writing.
2. Offers based on information provided by purchaser, including but not limited to, pictures and drawings may be relied on by supplier as to the correctness of those information, pictures and drawings etc.
3. Information contained in catalogues, pictures, drawings etc supplied by supplier are not binding on supplier except if the parties agree otherwise in writing.
4. Products are offered and supplied taking into consideration customary guidelines and norms with respect to the design, calculation and installation, and supplier accepts no responsibility whatsoever for possible errors and/or insufficient information, specifications, drawings, calculations and/or other data. Small differences in size and/or small deviations in manufacture or parts made for the benefit of proper execution of the final products shall not be a ground or cause for purchaser to claim dissolution of the agreement and/or a claim damages.
5. Offers, pictures, specifications, drawings, calculations, measures, descriptions, design and/or any other information or documents made available by supplier will at all times remain the property of supplier.
Art. 4. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
Except if agreed otherwise, supplier reserves all intellectual, industrial and other, similar, rights to supplier’s designs, sketches, pictures, drawings, models, programmes and offers. These designs etc. shall remain supplier’s property and cannot, without express approval by supplier, be copied, shown to third parties or be used in any other fashion irrespective of any payment made therefore by purchaser.
Art. 5. ADVISE, DESIGNS AND MATERIALS
1. Information and advice provided by supplier are of a general nature only.
2. Supplier does not accept any responsibility for any design made by or on behalf of purchaser. Purchaser is responsible for the functionality of materials prescribed by purchaser. Functionality means the suitability of the materials or the parts for the purpose intended by the design of purchaser.
3. Notwithstanding the provisions of Art. 13 supplier shall be responsible for designs made by supplier.
4. In case of an order by purchaser and designs not made by supplier, supplier shall only be responsible for the manufacture in accordance with the order and for the quality of the materials used insofar these materials are not prescribed by purchaser notwithstanding the provisions of Art. 13.
Purchaser is authorized to have materials not prescribed by him checked by third parties before they are used in the manufacture. Any related costs shall by for purchaser’s account.
After the materials or parts have been used, purchaser cannot claim that the materials or parts used are not suitable nor can he claim any defects he could reasonably have discovered if he had these materials or parts checked.
5. If purchaser wishes to transfer responsibility for the design made by or on behalf of him to supplier, supplier needs not accept such responsibility. Supplier should be given sufficient time to make a decision on this transfer. Supplier needs to have the opportunity to study the entire design and to make the necessary calculations and purchaser needs to provide supplier with all necessary details and documents which supplier may need or which assist supplier in doing so.
6. Supplier cannot be expected to make the study referred to in subpara. 5 above at his own expense unless the request for an offer already stipulated that purchaser wishes supplier to take this responsibility.
7. Supplier will not accept responsibility for parts or materials which were made available or prescribed by purchaser.
Art. 6. COMING INTO EFFECT OF AN AGREEMENT
1. An agreement, whatever it is called, shall only come into effect upon acceptance of the order by supplier or upon written confirmation of such order by supplier. Acceptance is also evidenced from the fact supplier executes the order.
2. Agreements made with employees of supplier are not binding on supplier unless accepted in writing by supplier.
Art. 7. TRANSFER / DELIVERY AND PASSING OF RISK
1. Times for delivery cannot be considered to be absolute deadlines unless expressly accepted by supplier in writing. In case of late delivery purchaser needs to provide a notice to supplier and give a reasonable period within which supplier may deliver. Late delivery can only result in a claim for damages if agreed in writing notwithstanding of the provisions of Art. 14 Para 1.
2. Delivery will be made freight prepaid at the agreed destination in the Netherlands unless the parties expressly agree otherwise.
3. Supplier has the right to deliver in stages upon completion of the relevant parts. In that case supplier has the right to invoice purchaser for the parts already delivered and purchaser shall have the obligation to pay such invoices.
4. If purchaser fails to accept the goods, including failure to do whatever may be reasonably required of purchaser to make such delivery possible, supplier has the right, notwithstanding supplier’s right to claim damages, after having given purchaser notice of breach and a period within which such breach can be remedied and purchaser fails to remedy the breach within such period, to:
a. store the goods at the expense of purchaser in which case supplier shall be deemed to have complied with its obligations; or
b. to sell the goods for and on behalf of purchaser subject to the obligation to pay the proceeds to purchaser less any claim of supplier and storage costs, if any; or
c. to terminate the agreement in whole or in part without seeking intervention by a court notwithstanding of supplier’s right to claim damages.
5. Immediately after the goods have been off-loaded from the means of transportation at the place of destination, the risk passes to purchaser.
6. If purchaser requests delivery in a way which is different from the usual way of delivery the related costs will be for the account of purchaser.
7. Return shipments to supplier must be made freight prepaid to an address supplied by supplier with specification in writing of reasons for the return. If a return is made without compliance with the above conditions supplier has the right to refuse to accept such return shipment or to return the goods so returned at purchaser’s expense. Return shipments are made at the risk and for the account of purchaser.
Art. 8. FORCE MAJEURE
Non-performance on the part of supplier caused by any of the following shall not constitute supplier’s breach in accordance with Art.6:75 of the Dutch Civil code:
- Lack of sufficient raw materials; Business or transportation interruptions of whatever nature; Strikes; Lock-outs; Lack of sufficient personnel; Quarantine; Epidemics; Siege; War; Non-performance by third parties hired by supplier; Restrictions caused by measures, laws or regulations of international, national or regional government institutions including import or trade restrictions; Non-or late performance by suppliers and/or sub-contractors; Fire; Loss of raw materials.
The above list is non- exhaustive. In case of a default caused by any of the above purchaser shall not have the right to claim performance and/or damages. Nor is purchaser entitled to terminate the agreement with supplier on the basis of such default.
Art. 9. SCOPE OF WORK
1. Purchaser shall be responsible that all permits, dispensations and similar decrees required to undertake the work are obtained.
2. The agreed price for the work does not include (except if otherwise provided in writing):
a) all works of a construction nature, including but not limited to breaking, painting, carpentry, wallpapering or repair works, nor costs of connecting to the main sewage, gas or electricity systems;
b) additional labour for carrying parts which cannot be handled by supplier, as well as equipment required to move such parts;
c) taking measures to prevent damage to nearby things;
d) Additional costs of removal incurred as a consequence of the nature of the things to be removed such as dangerous building materials and/or chemical waste.
Art.10. CHANGE IN WORK
1. All changes in the work either at the request of purchaser or as a consequence of a change in the design or to be made as a result of the information provided not being in conformity with the actual execution of the work or because of deviations from the bill of quantities will be treated as additional work if as a consequence thereof additional costs are incurred.
2. Additional work will be charged on the basis of prices prevailing when the additional work is performed.
Art.11. CONDITIONS OF WORK AND INSTALLATION
1. Supply of materials and work to be performed, including installation, shall be done or performed under normal work conditions and during supplier’s normal working hours.
2. Purchaser needs to ensure that supplier can perform the work without interruption. Purchaser shall ensure:
a) Availability of gas, water and electricity at the place or in the space where work is to be performed;
b) That the area where work is to be performed shall be dry, clean and warm;
c) Availability of suitable equipment to transport materials to the site of installation;
d) No interruption caused by work being performed by others, including third parties of the transportation or installation of materials.
e) Availability of dry storage area for storage of (not yet) installed goods, materials and equipment;
f) Timely and proper completion of work which is not the responsibility of supplier, including electricity, construction works or painting.
3. The personnel assigned to do the installation shall only install the materials supplied by supplier or other material included in the order.
4. Supplier is not responsible for work, including installation work, not foreseen or agreed but necessary for the proper performance of the agreement or additional or supplemental work requested by purchaser. Related costs, including necessary travel or lodging costs which are not included in the agreed price will be for the account of purchaser.
5. When the installation cannot take place without interruption or is delayed in any other manner due to circumstances beyond supplier’s control, supplier has the rights to charge purchaser for additional costs at then prevailing rates.
6. Purchaser shall be present at completion of the work to inspect whether the work was completed properly.
7. Claims made after departure of the installation personnel concerning the performance of the work or the duration will not be considered unless purchaser can show that be could not have reasonably discovered a defect at the time of the completion of the work. In that case, purchaser has to make a claim in writing within 8 days of discovery of the defect and allow supplier an opportunity to remedy the defect. Purchaser will have to identify the defect and when and how he noticed the defect.
Art. 12. HAND-OVER
1. A work is deemed to have been handed-over:
a. Upon written or oral notification of completion by supplier to purchaser and approval of the work by purchaser;
b. 8 days after supplier has notified purchaser the work is completed and purchaser fails to inspect the work within such period;
c. Use of the work by purchaser and further provided that if only part of the work is used by purchaser that part shall be deemed having been handed over to purchaser.
2. Minor defects which can be corrected within 30 days will not delay the hand over.
3. If purchaser withholds approval of the work preventing hand-over purchaser must provide a written notification to supplier stating the reasons for such withholding of approval.
4. If any part cannot be delivered through circumstances not caused by supplier simultaneous at the time of the hand-over of the work, hand-over can take place nevertheless. However, this may be taken into account as far as payment and, if applicable, warranties, are concerned.
Art. 13. WARRANTY
1. Purchaser has no more or other rights to warranty than those resulting from warranty assurances made by third parties in relation to goods supplied by them.
2. If purchaser, without prior explicit and written approval by supplier, makes repairs or modifications or has those made, to the warranted goods, any warranty stipulation shall be no longer applicable.
Art. 14. LIABILITY
1. Supplier is never under an obligation to pay compensation to purchaser or others (except in case of intent or gross negligence by supplier which must be proved by purchaser).
2. Purchaser shall hold supplier harmless from any claim by third parties against supplier based on the performance of the agreement. Purchaser shall indemnify supplier against any costs damages etc. incurred by supplier as a result of a legal claim by third parties.
3. Notwithstanding the provisions of Art. 14 Para. 6, supplier, supplier’s employees and third parties hired by supplier, will never be liable for damages suffered as a result of or during the execution of the work by supplier, and through fault of supplier or negligence of supplier, supplier’s employees or third parties hired by supplier unless and to the extent supplier is insured therefore.
4. Supplier shall never be liable for any damage caused by intent or gross negligence by employees, subcontractors or agents of supplier or any third party hired by supplier.
5. Any liability of supplier, supplier’s employees or third parties hired by supplier shall lapse 1 (one) year after the damage has occurred or started notwithstanding the provisions of Art. 17 Para. 2
6. The liability of supplier is limited in all cases to the amount paid under the applicable insurance policy plus the applicable deductible, it being understood, however that if no payment is made under such liability insurance policy in such case liability of supplier is limited to € 100,000 (Euro One Hundred Thousand Only) for each event/claim or series of events or claims resulting from one and the same occurrence.
7. Supplier, supplier’s employees and third parties hired by supplier are never liable for immaterial damage, business damage or consequential damages in whatever form and no matter how caused, including lost profits. Purchaser should obtain applicable insurance.
8. Supplier reserves all statutory and contractual defenses which supplier can invoke at his own defense as well as for the benefit of supplier’s employees and third parties hired by supplier for whose actions supplier is liable by law.
9. Purchaser shall indemnify supplier against any claims by third parties on supplier resulting from the usage by supplier of drawings, samples models, or other things or information supplied by purchaser and purchaser shall be liable for all resulting costs.
10. Purchaser is liable for all damage resulting from loss, theft, fire or damage of goods, tools and materials of supplier from the moment these goods, tools and materials are at the site of the work, except if caused by the intent or gross negligence of supplier.
Art. 15. COMPENSATION
Purchaser shall compensate supplier, supplier’s staff and other third parties hired by supplier, for all damages suffered by it or them, during or as a consequence of the work, irrespective whose intent, gross or ordinary negligence caused such damages. Only when purchaser can prove that damages were caused by the intent or gross negligence of the person who is to be compensated purchaser shall not be liable to pay such damages.
Art. 16. PAYMENT
1. Payment shall be made in cash at the office of supplier or by deposit or transfer into a bank or giro account designated by supplier.
2. Except if agreed otherwise terms of payment shall be as follows:
- Payment for goods within 30 days of the date of invoice;
- For work requested by purchaser within 30 days of the date of invoice.
- Larger projects and hire of work are charged on installment basis as follows:
i) 30% of the agreed price upon confirmed order;
ii) 60% upon delivery;
iii) 10% of the agreed price plus costs of additional work upon hand-over.
Payment of the above shall be made within 8 days of the date of invoice.
The value date adopted by the bank or GIRO shall be considered the date of payment.
3. Supplier can at all times demand adequate form of security from purchaser which in supplier’s opinion offers sufficient security for performance of purchaser’s obligations. If purchaser does not provide required security supplier has the right to suspend performance of its obligations and/or to declare the agreement terminated without court intervention and with preservation of supplier’s right to claim compensation.
4. If purchaser does not pay in time he shall be deemed to be in default without the need for a notice of default. In that case, supplier has the right to suspend the performance of its obligations even if a final deadline for performance has been agreed upon, notwithstanding supplier’s right to seek payment and compensation.
5. Purchaser shall not have the right to suspend his payment obligation based on assumed non-conformity of the goods delivered or an assumed default by supplier in its performance, or for whatever other reason.
6. All payments shall be made without set-off or deduction. Purchaser shall have no right to assign a claim on supplier to a third party.
7. In case of late payment all payments of purchaser, whether supplier has invoiced those or not, shall become immediately due and payable.
8. The entire purchase price or contract price for hire of work shall become immediately due and payable in case of non-timely payment of the agreed installment on the due date if purchaser is declared bankrupt, applies with the courts for suspension of payment or is put under supervision of a court-appointed receiver, or if purchaser is subject to a temporary or permanent court approved debt restructuring or when any goods or claims of purchaser are attached or if purchaser passes away or is dissolved or liquidated.
9. If payment of an invoice sent is not made by purchaser on or before the due date, including payment in cash or by bank or GIRO, purchaser shall be deemed to be in default without the need for a notice of default and the payment overdue shall then be subject to interest equal to the refinancing rate determined from time to time by the European Central Bank for the most recent refinancing transaction which took place before the first day of the current half year plus 7% to be calculated from the date of the invoice until the date of payment in full of such overdue amount.
10. Purchaser shall indemnify supplier against all court and non-court costs incurred by purchaser as a consequence of as failure by purchaser to pay or non-timely payment or partial payment by purchaser or a breach by purchaser of any other provisions from the agreement and supplier hiring an attorney or another third party to pursue the claim on purchaser. In such case purchaser shall be liable to pay non-court related expenses in accordance with the latest applicable claims rate of the Dutch Bar Association, but no less than Euro 200 excluding value added tax.
11. Payments made by purchaser shall be applied in accordance with article 6:44 Dutch Civil Code.
Art. 17. CLAIMS OR COMPLAINTS
1. Purchaser guarantees the correctness and completeness and shall be responsible for, the information supplied by him to supplier. As far as information supplied by supplier including measurements, weights, colorfastness, etc. is concerned which is part of supplier’s offer or what is deemed to be part thereof based on Art. 3 part 3, purchaser needs to take into consideration customary derivations, as well as small changes in the manufacture or parts necessary for a good execution. Purchaser needs to anticipate changes in the description contained in the offer or the agreement if and insofar it concerns minor changes in size or insignificant changes in construction or parts for the sake of a good execution of the agreement. Such changes shall never be the basis or reason for purchaser to claim dissolution of the agreement or claim damages.
2. Purchaser looses the right to claim non-performance of the agreement if he has not given notice in writing by registered mail of such non-performance within 10 days of the date he discovers or should have discovered such non-performance explaining the nature of the non-performance as well as specification of the claim purchaser believes he can base on such non-performance.
3. At any rate supplier looses any right to claim non-performance of the agreement if he does not within one year of the date the goods were actually delivered to him or work was handed over to him, notify supplier in writing by registered mail specifying the nature of the non-performance, unless this period of time is not in accordance with the period of time during which a warranty applies according to the agreement in which case the latter prevails irrespective whether the latter is shorter or longer.
Art. 18. PRICES
1. All prices are exclusive of BTW (Dutch Value Added Tax) and - unless expressly agreed otherwise in writing - exclusive of installation and transportation costs.
2. If supplier has made an offer the prices mentioned therein will be valid for 2 months from the date of the offer.
If increases occur or have occurred thereafter in one or more cost items on which the offer is based, including currency exchange rates, manufacturer prices, raw material and parts prices, wages and transportation costs, taxes, customs duties and other levies imposed by a government, supplier reserves the right to charge purchaser for such higher costs.
Art. 19. RETENTION OF OWNERSHIP AND PLEDGE
1. Purchaser shall only become owner of goods supplied or to be supplied under certain conditions. Supplier retains ownership of goods to be delivered as long as purchaser has not paid the claims of supplier in relation to performance of the agreement or a similar agreement by purchaser. Supplier also retains ownership of goods (to be) delivered as long as purchaser has not yet paid for the work (to be) breach of such agreements which include claims for penalty, interest and expenses.
2. Purchaser is not entitled to encumber the goods delivered by supplier with a mortgage pledge or non-possesory pledge and undertakes, at first request of supplier, to declare to any third parties who want to establish any such encumbrance that he is not authorized to do so.
3. If purchaser fails to perform any obligation contained in the agreement in relation to the goods sold or work to be executed purchaser has the right, without providing a notice of breach, to represses the goods supplied or the newly made goods are located.
4. Supplier grants to purchaser ownership of the goods supplied once all payment obligations from such agreement and similar agreements have been performed, subject to right of pledge of supplier in relation to claims which supplier may have on purchaser at any point in time. Purchaser shall at first request by supplier cooperate in doing what may be required in that respect.
Art. 20. DISSOLUTION
1. Whole or partial dissolution of the agreement takes place by a written declaration of the person entitled to such dissolution. Before purchaser issues such a written declaration to supplier he shall first provide a written notice to supplier and offer him a reasonable period of time within which supplier can fulfill his obligations or remedy any breach and purchaser shall specify in such notice to what extent supplier has failed to perform or is otherwise in breach in accordance with the provisions of Art. 17.
2. Purchaser shall have no right to dissolve the agreement in whole or in part or suspend performance if he himself had already failed to perform his obligations as well as when there was already a case of breach by purchaser as mentioned in Art. 8.
3. If supplier agrees with dissolution without being in default, she shall at all times have the right to claim damages related to its income such as cots, lost profit, and reasonable expenses incurred to determine damages and liability. In the event of partial dissolution purchaser cannot claim that already performed work should be considered not having been performed as a result of such dissolution and supplier has the full entitlement to receive payment of work already performed.
4. In each of the following circumstances supplier has the right to terminate the agreement with immediate effect without the need for a notice of default or court intervention and without prejudice to statutory rights of supplier:
a. application for suspension of payment by purchaser to creditors;
b. declaration of bankruptcy of purchaser;
c. in case of declaration of a preliminary or final debt restructuring of purchaser;
d. if purchaser comes under supervision of the court;
e. if purchaser is liquidated, transfer control over his company or passes away;
f. if purchaser fails to perform any of his obligations in the agreement.
Art. 21. INTERPRETATION
If and to the extent, because of reasonableness or fairness or the unreasonably burdensome nature, any provision in these general conditions cannot be relied upon, such provision shall be given a meaning which is as does as possible to the original provision in terms of the contents and the meaning such that such provision can be relied upon.
Art.22. GOVERNING LAW AND CHOICE OF FORUM
1. Agreements between supplier and purchaser are exclusively governed and Interpreted in accordance with, the laws of the Kingdom of the Netherlands.
2. All disputes, including for payment, shall in first instance be within the jurisdiction of the district court at Almelo.
3. Within a month after supplier has notified purchaser who is a consumer that the matter will be submitted to a judge, purchaser can indicate that he elects for dispute resolution by the judge authorized by law.