General Terms and Conditions of Delivery of Van Dam Bodegraven B.V., established in the Netherlands
Article 1. Applicability
1.1. The terms and conditions below are applicable to all our offers and all the agreements entered into by us or actions carried out by us.
1.2. The client takes on the obligation to declare these general terms and conditions applicable to agreements which it enters into with its clients in respect of the goods supplied by us and to stipulate in that context that its clients do the same at all times when they sell the goods on.
1.3. If any provision of these general terms and conditions is declared void and/or null, this will have no effect on the validity of the other provisions of the terms and conditions.
1.4. In the event of conflicting terms and/or conditions, the terms and conditions of Van Dam
Article 2. Offers and prices
2.1. All our offers – including price statements, brochures and price lists – are free of obligation and
can be revoked without any set form, even after acceptance of the offer by the client. Revocation after
acceptance by the client must take place immediately.
2.2. An acceptance of our offer, as referred to in Article 2.1, which deviates from the offer is deemed
to be a rejection of the original offer and as a new offer by which we are not bound. This also applies
if the acceptance only differs from our offer in minor areas.
2.3. All prices in the offers referred to by us, as referred to in Article 1.2, only apply to such offers, and
can be revised up to the moment the agreement is accepted by us.
2.4. Furthermore, after the agreement has been entered into, the prices can be increased on the
grounds of external factors, such as tax increases, external supplier prices, currency exchange rates,
raw materials, freight costs, wages and/or social security contributions, import duties, levies or other
charges.
2.5. The prices stated are always exclusive of BTW (Dutch VAT), excluding packaging and any import
and export duty owed.
Article 3. Delivery period
3.1. Unless explicitly agreed otherwise elsewhere, any delivery periods stated are estimates only and
can never be deemed a final deadline, unless explicitly agreed otherwise. In any event, an overrun of
the delivery period does not entitle the client to compensation for loss or dissolution of the
agreement.
Article 4. Realisation of the work
4.1. We are entitled to suspend the performance or further performance of our work until such a time
as the client has met all its obligations to us.
This right to suspend applies until the moment that the client nevertheless meets its obligations,
unless we have already made use of our right to dissolve the agreement. None of the above affects
our entitlement to compensation for loss.
4.2. The agreement entered into by us will be realised to the best of our ability. Deviations of a minor
nature do not entitle the client to dissolve and/or to compensation for loss.
Article 5. Delivery
5.1. Unless otherwise agreed, delivery is free domicile.
5.2. The choice of transport is ours, unless explicitly specified in writing. Damage occurring during the
transport must be stated on the delivery receipt or the bill of lading, or if only noticed after receipt,
notified to us in writing no later than 2 hours after receipt.
We are only required to reimburse transport loss up to a maximum of _ of the invoice amount.
5.3. In the case of delivery on call, the risk is transferred as soon as the goods have been separated
for the client at our site.
Article 6. Sale and/or delivery to third parties
6.1. The client is not permitted to sell articles or deliver them to (other) wholesalers and the client is
also required to offer, sell and deliver exclusively to retailers at a selling price which is not under the
wholesale price, and/or to consumers at a selling price which is not under the wholesale price plus
BTW (Dutch VAT). The term 'under the wholesale price' is deemed to mean the price identified as such
in our valid price lists.
6.2. Unless otherwise agreed in writing, the client is obliged to sell and deliver our articles in the
original, undamaged packaging originating from us, and also not to sell or deliver to third parties
regarding which the client knows or should know that said third party will not comply with these terms
and conditions or provisions or which are excluded by us from sale and delivery of our articles.
6.3. The client will fully comply and ensure compliance with these terms and conditions and will
refrain from actions which conflict with them, while agreeing a priori to an audit of its administration
to check compliance with the provisions of this article.
A breach of these terms and conditions gives us the right to cancel or dissolve an agreement
entered into, without the intervention of the courts or notice of default, and to exclude the client from
further deliveries, all with retention of the right to claim compensation for loss.
Article 7. Force majeure
7.1. Circumstances outside our will and/or through no fault of our own, which are of such a nature
that compliance with the agreement can no longer be reasonably required of us, or no longer to the
full extent, give us the right to dissolve the agreement wholly or partly and/or to suspend realisation
of it without any obligation to pay compensation for loss.
7.2. The circumstances referred to in the previous sentence of this article shall be deemed to
include: non-delivery, incomplete delivery and/or delayed delivery by our suppliers, war and risk of
war, full or partial mobilisation, import and export bans, measures of Dutch and/or foreign government
bodies which make compliance with the agreement more difficult and/or costly than was foreseen at
the time the agreement was entered into, frost, labour strikes and/or works sit-ins, epidemics, traffic
disruptions, loss or damage during transport, fire, theft, disruptions in the supply of energy, machine
defects, both in our business and in the businesses or third parties from which we wholly or partly
source the necessary materials or raw materials, and all other causes outside our will and/or of no
fault of our own.
Article 8. Complaints and liability
8.1. With the exception of the provision in the previous sentence, we can never be held liable for any
loss whatsoever, including loss of profits, which may arise for the client from an agreement entered
into with us.
The client indemnifies us against claims from third parties in the matter.
8.2. Our liability is limited to replacement of the faulty good supplied, or a part thereof, or to
reimbursement of the agreed price or a proportionate part thereof, at our discretion.
8.3. All complaints must be made by registered letter within 14 days of delivery of the goods, or of
the moment at which the fault could reasonably have been ascertained, at the risk of forfeiting rights.
8.4. Each right of recovery shall lapse:
- if the 14-day period referred to above is not observed;
- if complaints are not made known in writing by registered letter;
- if we are not given the opportunity to investigate the validity of the complaints on site,
or to have such validity investigated by a third party;
- if application and use of the goods - irrespective of the quality or version to which the
complaint relates - is continued.
8.5. Return shipments will only be accepted by us with our prior written approval.
8.6. Complaints never give the client the right to suspend payment of an amount owed to us or to
invoke compensation with regard to any amount owed.
Article 9. Retention of title
9.1. We retain title to all goods supplied by us up to the moment of full payment of the price of all the
goods delivered or to be delivered by us to the client, as well as in respect of any amounts owed for
any work carried out or to be carried out by us in the context of the supply of goods and in respect
of amounts owed by the client due to failure in the performance of the agreement entered into with
the client, including collection costs, interest and penalties.
9.2. Transfer of title to the goods will only take place after full payment of all the amounts owed as
referred to in the previous paragraph.
9.3. If and in as much as no payment has been received by us for the payable amounts owed in
respect of which we have retained title to the supplied goods, we are entitled to repossess the goods
without notice of default and without judicial intervention. As necessary, the client irrevocably grants
us, now for then, and is required to grant us access to all the areas in use in its company, all without
prejudice to our right to claim compensation for loss from the client.
9.4. We will also have the right described in point 9.3 in the event that the client suspends payment,
applies for protection from its creditors, bankruptcy or liquidation of goods.
9.5. The client is entitled to sell on the goods delivered by us on which we are owner, but only in as
much as this is usual as part of its normal business operations, unless we have notified the client that
it is no longer authorised to do so.
9.6. At our first request, the client is obliged to establish a non-possessory pledge on the goods
delivered by us, as soon as we lose possession thereof for any reason whatsoever, to serve as
security for the payment of all existing and future amounts owed by the client to us, including
collection costs and interest. Failure to do so will result in all amounts owed to us becoming
immediately payable, and we will be entitled to dissolve the agreement(s), without prejudice to our
right to compensation for loss.
9.7. The client is prohibited from establishing a possessory or non-possessory pledge on goods
delivered by us – irrespective of whether or not we are still the owner of them – on behalf of a third
party.
9.8. We will be permitted at all times - as long as the purchased and delivered goods have not been
paid in full, as well as prior to delivery - to request payment in advance or a bank guarantee, or at
least an equivalent security as guarantee for payment of the amount owed, or the amount which will
be owed after delivery.
The client shall be obliged at such a time to make such a payment or provide such security.
9.9. As long as security has not been provided as referred to in 9.8, we can suspend delivery and/or declare the current agreement to be dissolved without judicial intervention, without prejudice to our right to compliance and/or compensation for loss.
Article 10. Payment
10.1. Unless otherwise agreed, payment of invoices must take place in cash at the time of purchase
or delivery of the goods, without any setting off, in Dutch currency.
10.2. If we provide credit, contrary to the provision of the previous paragraph, full payment must be
made within 30 days of the invoice date.
10.3. In the event that the invoice amount has not been paid in full on the date of its becoming due
and payable, we shall be entitled to charge interest of 1.5% per month, in which respect part of a
month shall be deemed to be a full month.
10.4. In the event that the invoice amount has not been paid in full on the date of its becoming due
and payable, the client shall be in default by the mere passing of the deadline, without the
requirement of any demand or notice of default. In such an event, we shall be entitled to dissolve the
agreement without any judicial intervention, without any prejudice to our rights as listed in the
previous paragraphs of this article.
In such circumstances, the client shall be required to reimburse us for all costs incurred by us in the
collection of the outstanding amounts, and in particular:
a. invoices of lawyers and local counsel in respect of their work, both in and out of court, also
inasmuch as these exceed the costs assessed by the court, costs of bailiffs, authorised
agents and collection agencies, as well as all enforcement costs.
The extrajudicial costs referred to in the previous sentence are set at 15% of the principal
amount, with a minimum of 70 euros;
b. the costs of an application for bankruptcy;
c. the storage costs in the event of a suspension of delivery.
10.5. A payment serves first to reduce the collection costs, then the interest owed and finally the
principal amount.
In the event that the client fails to pay multiple invoices, a payment will first be deducted from the
oldest invoice, then the next oldest invoice, etc, with due observance of the provision in the previous
sentence.
Article 11. Compensation/Settlement/Suspension
11.1. The client is not permitted to compensate any amount owed by it to us with amounts that we
may owe to it.
11.2. In the event of temporary inability to deliver, the client is not entitled to suspend payment.
11.3. The client is also not entitled to suspend payment on the grounds of this agreement in the
context of any other agreement entered into with us.
Article 12. Packaging
12.1. The packaging loaned by us to the client, including pallets, containers, etc., will remain our
property at all times, including in cases in which a deposit is charged and/or paid.
12.2. The client may therefore not make use of the packaging, dispose of it or use it for purposes
other than those for which it is intended.
12.3. If the returned packaging is damaged, we are entitled to withhold repayment of part or all of the
deposit.
Article 13. Disputes
All disputes between the client and us which may arise from the agreement entered into between us
and the client will be put before the court which is competent on the grounds of the statutory
competence rules, or before the competent court in the district in which we have our actual place of
establishment, at our discretion.
Article 14. Netherlands law applicable
Netherlands law is applicable to all actions carried out by us, including agreements entered into by us.