GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY NO EXCESS B.V.
- The following terms and conditions shall form an integral part of all contracts and apply to all (other) acts and juristic acts with NO EXCESS B.V. (hereinafter: the Seller) and to all natural or legal persons that buy goods from the Seller, enter into a contract with the Seller or conduct negotiations on a contract (hereinafter: the Buyer).
- The applicability of any general terms and conditions laid down by the Buyer is explicitly rejected by the Seller.
- Changes and additions to these terms and conditions shall only be agreed upon in writing. 8. In the event of any inconsistency between the text of these terms and conditions in the Dutch language and those written in a different language, the Dutch version shall be binding.
- The Seller shall not be bound by offers (including quotations) and these shall only be deemed to constitute an invitation to the Buyer to place an order. A contract shall only have been concluded by virtue of a written order confirmation on the part of the Seller.
- It shall not be possible for the Buyer to cancel an order or contract, with the exception of cases determined by mandatory rules of law, or where the Seller agrees to cancellation after a written request to this effect from the Buyer, under terms to be determined by the Seller. Where an order or contract is cancelled, the Buyer shall be obliged to pay an amount due and payable forthwith, which amount shall equal fifty percent (50%) of the invoice value of the goods in question, excluding VAT, without prejudice to the right of the Seller to compensation of the actual loss sustained or to be sustained.
- In connection with sales programmes, the Seller shall be entitled to specify minimum quantities for goods to be delivered. If the Buyer places an order for a lower quantity and the Seller accepts this, the Seller shall be entitled to charge further payments, to be determined reasonably by it, which payments may include postage.
- Models, samples or drawings shown or issued by the Seller in any way whatsoever are put together with all due care, but merely constitute examples of the goods in question. Where the Buyer demonstrates that the goods supplied deviate to such extent from the models, samples or drawings shown or issued that it can no longer reasonably be obliged to buy said goods, the Buyer shall be entitled to dissolve the contract. However, this shall only apply for the future and insofar as reasonably necessary.
- All prices indicated by the Seller in catalogues or otherwise are exclusive of VAT and shall not bind the Seller. The cost of packaging and dispatch, import and export duties and excise duties, and all other levies or taxes imposed or levied in respect of the goods and transportation thereof shall be for the account of the Buyer.
- Once a contract has been concluded, the Seller shall be entitled to increase the prices agreed upon in the event of, amongst other things, but not limited to: interim price increases and/or surcharges on freight, customs tariffs, product and/or raw material prices, taxation, wages or national insurance contributions, interim increases by its supplier(s), and changes to the monetary relationships, or other non-foreseeable circumstances, which result in increased prices.
- Risk, delivery and term of delivery
- The delivery of the goods and packaging thereof and the transfer of risk in relation to said goods and packaging shall occur when said goods and packaging are ready for dispatch. Where a different date of delivery has been agreed upon in writing, this shall occur in accordance with standard business practice. In this case, the appropriate Incoterms, issued by the International Chamber of Commerce, shall apply to deliveries.
- The Seller shall retain the right to deliver in consignments, in which case said deliveries shall be deemed to have been made in accordance with separate contracts. The Buyer shall be obliged to take delivery of goods at the time of delivery. Where the Buyer fails to take delivery of goods, or fails to do so on time, he shall be in default de jure. The Seller shall then be entitled to store the goods in question at the expense and risk of the Buyer or to sell them to a third party. The purchase price, plus interest and costs, shall continue to be due from the Buyer, by way of compensation. However, where appropriate, the net proceeds of the sale to said third party shall be deducted from the amount due. Any delivery date agreed upon shall be indicative. The Seller shall make every endeavour to deliver goods on the date agreed upon. Where the Seller is unable to deliver goods by the delivery date agreed upon, the Buyer shall not be entitled to payment of compensation or damages in this respect. Nor, in this situation, shall the Buyer be entitled to dissolve or terminate the contract, except where it gives the Seller written notice of default and the Seller still fails, after receipt of the notice of default, to supply the goods in question within a reasonable period of time stipulated in writing by the Buyer. Where no delivery date has been agreed upon, the Seller shall deliver the goods in question within a period of time considered reasonable by it.
- Retention of title
- Notwithstanding actual delivery, the Seller shall retain the right of ownership for all goods delivered and to be delivered by it to the Buyer under a particular contract until the date on which payment is made in full by the Buyer for everything due to the Seller from the Buyer for whatever reason, which payment shall include interest and costs.
- Where the law of the country for which the goods sold are destined provides for more far-reaching possibilities for the retention of title than determined above in Subclause 1, said more far-reaching possibilities shall be deemed to have been agreed upon between the parties in favour of the Seller, on the understanding that the provisions of Subclause 1 above shall continue to apply where it proves impossible to objectively determine which more far-reaching regulations specifically apply for this arrangement.
- Where the Buyer fails to fulfil its payment obligations vis-à-vis the Seller, or the Seller has good reason to fear that the Buyer will fail to do so, the Seller shall be entitled to dissolve the contract without notice of default and to sell the goods delivered or to be delivered under retention of title to a third party, or to take possession of said goods and, to this end, demand access to the place where the goods in question are being stored. In a situation such as this, the Buyer shall be liable for all costs accompanying the above. The purchase price, plus interest and costs, shall continue to be due from the Buyer, by way of compensation. However, where appropriate, the amount due shall be minus the nett proceeds of the sale to the third party in question.
- The Buyer shall not be permitted to sell or encumber any goods subject to retention of title. However, the Buyer shall be permitted to sell and transfer ownership of said goods to third parties within the framework of the normal course of its business. This permission shall terminate ipso jure at any point where the Buyer in any way fails to fulfil its payment obligations, is granted a provisional moratorium on payments or is put into involuntary liquidation.
- The Buyer shall be obliged to insure all goods referred to in V.1. against all standard risks, such as fire, explosion, damage, loss and theft, in such a manner that the insurance policy in question shall include a clause stipulating that the insurance taken out shall also cover goods belonging to third parties. Any payments made in respect to the damage and/or loss of the goods referred to above shall replace the goods concerned.
On first demand from the Seller to this end, the Buyer shall assign to the Seller all rights vis-à-vis the insurers in question in this connection.
- While the Seller continues to own the goods, the Buyer shall immediately inform the Seller in writing of the loss of, damage to or confiscation of said goods or any part thereof, and/or of any claim otherwise made to (any part of) the goods in question.
- Payment shall be effected within 30 days of the invoice date by bank transfer of the amount due to the bank or giro account of the Seller. Payment of the amount due to anyone other than the Seller shall not be deemed to release the Buyer from its payment obligation.
- All amounts charged to the Buyer shall be paid in full, without any form of discount or deduction. The Buyer shall not be entitled to deduct any amount from the purchase price in payment of any debt due from the Seller to the Buyer.
- Where the Buyer fails to pay any amount due from it on time, the Buyer shall be in default by operation of law, without any further notice of default being required, and he shall be obliged to pay the Seller an immediately due and payable default interest amounting to 1.5% per month, where part of a month shall be calculated as a full month. After the end of each month, the amount on which interest is calculated shall be increased with the interest payable on said month. In addition, the Buyer shall be obliged to pay an immediately due and payable payment amounting to 15% of the total amount payable, with a minimum of € 150.00, notwithstanding the Seller’s right to payment in full of all extrajudicial and judicial costs relating to collection and payment of the amount due.
- Each payment effected by the Buyer shall firstly serve as settlement of the interest due and, secondly, in settlement of all costs relating to collection. Any payment effected by the Buyer shall only serve to reduce amounts outstanding as part of the principal sum after settlement in full of the interest and collection costs indicated above.
- Any objections relating to invoices, specifications, descriptions and prices shall be brought to the attention of the Seller within 14 days of the invoice date. All said objections shall be brought in writing and be accompanied by reasons for the objection in question. Where these conditions are not met, the Buyer shall be deemed to have accepted the invoice issued to it in its entirety.
- The Buyer shall not be entitled to suspend its obligations, except where the Buyer submits the dispute to the court competent according to Clause XII within 30 days of the date on which the obligations in question become due and payable. Where the Seller produces the goods in question, or has these produced, as specifically instructed by the Buyer, on the basis of a design that does not originate from the Seller, the Buyer shall indemnify the Seller against any infringement of intellectual property rights belonging to third parties by (the production and use of) said goods.
VII Intellectual property
- The Buyer shall guarantee that it will not infringe intellectual property rights belonging to the Seller (nor shall it permit or enable third parties to do so), or its suppliers, with regard to the goods, for example by copying, altering or imitating said goods.
VIII. Complaints, warranty and dissolution
- The term ‘complaints’ shall be understood to mean all objections made by the Buyer with regard to the quantity, quality and/or reliability of the goods delivered. The goods delivered shall only be considered unreliable where the Buyer demonstrates that they do not comply with statutory quality requirements applicable for said goods when the contract was concluded, and do not conform to the specifications explicitly agreed upon, and/or are not suitable for the use explicitly stated by the Buyer prior to or when concluding the contract, or which use is inherent to the nature of the goods in question.
- The Buyer shall be obliged to inspect the goods carefully immediately after delivery (or to have them carefully inspected by a third party). Any complaints shall be made in writing within 8 days of the delivery of the goods in question. Any defects that cannot reasonably be detected within the time limit indicated above shall be reported to the Seller as soon as observed and no later than 30 days after receipt of said goods by the Buyer. The Buyer shall not be entitled to lodge any complaints in respect of goods where said complaints cannot be verified by the Seller. The Buyer shall not be permitted to return goods to the Seller before the Seller has agreed to this in writing. All costs incurred when returning goods shall be for the account of the Buyer and the goods shall continue to be for its risk. The Buyer shall not be entitled to enforce any claims relating to complaints about defects observed in the goods against the Seller while the Buyer has failed to fulfil any obligation arising for it from the contract(s) entered into with the Seller.
- Where a complaint has been lodged on time, correctly and in accordance with the provisions of this Clause, and, according to the reasonable assessment of the Seller, the Buyer has satisfactorily demonstrated that the goods were defective, the Seller shall, at its discretion, deliver replacement goods at no cost to the Buyer, against return of the goods found to be unreliable, or repair the goods in question, or grant the Buyer a discount on the purchase price, which discount shall be agreed upon in joint consultation, or dissolve the contract entered into with regard to the goods found to be unreliable, whether in full or partially. Fulfilment of one of the options referred to above shall fully discharge the Seller of its obligations, and the Seller shall not be obliged to pay any further amounts, compensation or damages. Where the Seller delivers goods to the Buyer that the Seller has obtained from its suppliers, the Seller shall never be obliged to offer any warranties or accept any liability that extends beyond the warranties or liability that the Seller is able to claim from the supplier.
- Notwithstanding the provisions of VI.1. and VI.3., any contract entered into between the Seller and the Buyer shall only be dissolved pursuant to a failure on the part of either party, which failure is such that continuation of the contract cannot, according to the standards of reasonableness and fairness, be expected of the other party. The dissolution
of a contract shall not result in either party being obliged to reverse payment of sums of money already paid.
- All liability for direct loss suffered by the Buyer pursuant to this Subclause, as well as all liability for consequential loss suffered by the Buyer, which consequential loss shall also be understood to include consequential damage, immaterial damage, trading loss and environmental damage, is excluded.
- Where the Seller is obliged to pay compensation, for whatever reason, despite that which is stipulated in Subclause 1 of this Clause, the compensation payable per incident or series of related incidents with a common cause shall never exceed an amount equal to the invoice value, excluding VAT, of the goods in question.
- The limitation of liability stated in Subclauses 1 and 2 shall not apply where the damage or loss in question was the result of wilful intent or deliberate recklessness on the part of the Seller or on the part of its most senior managers, or where said limitations are in conflict with the express requirements of mandatory law, including product liability.
- Where conditions that limit, exclude or establish liability can be invoked against the Seller by third parties, the Seller may also invoke said conditions against the Buyer.
- Force majeure
- In the event of force majeure, the Seller shall be entitled to suspend delivery of the goods in question or to dissolve the contract, whether in full or partially. Where this is the case, the Buyer shall not be entitled to payment of any compensation or damages in this respect.
- Force majeure shall be understood to mean any circumstance beyond the Seller’s control, as a result of which the Seller’s fulfilment of (some of) its obligations vis-à-vis the Buyer is prevented, delayed or becomes economically unfeasible, or as a result of which the fulfilment of these obligations cannot reasonably be required of the Seller, amongst other things in the event of: complete or partial disruption, limitation or cessation of the Seller’s business, or of the business of the party from which the Seller obtains the goods or raw materials to be supplied, the issuance of regulations or decrees that limit, prevent or render impossible production, delivery, transport or unloading of the goods, mobilisation, war, hostilities, rebellion, industrial action, lock-outs, conspiracy between workers, impediments to rail traffic or to transport by other means, or the lack thereof, shipwreck, the loss of, damage to or breakdown of transport and the involuntary liquidation of suppliers or the invocation by suppliers of force majeure or another external cause, which cause the Seller is unable to influence.
- The Seller shall inform the Buyer of the occurrence of the facts and circumstances referred to without delay and shall also inform it whether, to what extent and under which conditions it will fulfil the obligations arising for it from the contract. Where a contract is dissolved following default on the part of the Buyer, as referred to in Clause 6, as well as in the situation where the Buyer fails to fulfil any obligation arising for it from any contract concluded with the Seller, or fails to do so on time or properly, the Buyer is put into involuntary liquidation, the Buyer files a petition for liquidation or this is filed for it, the Buyer files for a (provisional) moratorium on payments, is being wound up, as well as when (some of) its assets are being attached, the Seller shall be entitled to immediately dissolve all contracts with the Buyer, provided this is done in writing, without prejudice to the rights that the Seller can derive vis-à-vis the Buyer from these Terms and conditions, the contract or the law, including its right to (full) compensation.
- Where the Buyer fails to fulfil its payment obligations vis-à-vis the Seller, or where the Seller has good reason to fear that the Buyer will fail to do so, the Buyer shall be obliged, on first demand to this end from the Seller, to provide adequate security in respect of the amount due to the Seller from the Buyer, by means of an irrevocable bank guarantee or by provision of security that can reasonably be considered equal to said bank guarantee. Until such time as the Buyer has complied with the above, the Seller shall be entitled to suspend fulfilment of the obligations arising for it from the contract.
XII. Applicable law and competent court
- The contract shall be governed by Dutch law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Disputes arising from offers and deliveries made by and contracts with the Seller shall only be submitted to the competent court in Haarlem, except where the Seller opts for the court that has jurisdiction according to general rules of jurisdiction.