GENERAL TERMS AND CONDITIONS OF BIEMANS TROPHY PRODUCTS B.V.
 

Biemans Trophy Products B.V. established and having its principal place of business in Rijen, at Europalaan 1. Filed at the Chamber of Commerce on 29 March 2016, under number 18112164.

 

 

APPLICABILITY
 

1.       These general terms and conditions apply to all legal relationships between the vendor and the purchaser, including any proposal, offer, agreement, advice issued and goods delivered between the vendor and the purchaser. These general terms and conditions apply insofar as the parties do not deviate from them explicitly in writing. 

2.       These general terms and conditions and the obligations resulting from the agreement between the vendor and the purchaser also apply to intermediaries or third parties engaged on the vendor's behalf.

3.       Any deviation from these general terms and conditions is only valid if explicitly agreed in writing. 

4.       The applicability of any purchase, or other, conditions of the purchaser are explicitly rejected.

5.       If one or more provisions in these general terms and conditions become invalid or null and void, the remaining provisions of these general terms and conditions will continue to apply. The vendor and the purchaser will consult in order to replace the invalid or null and void provision whereby the provision will be replaced by a provision which, if and insofar as possible, most closely matches the goal and purport of the original provision. 

 

 

PROPOSAL AND FORMATION OF AN AGREEMENT

 

6.        The offer is valid for 30 days from the date of issue, unless the proposal states otherwise.

7.        The agreement between the vendor and the purchaser will be formed in one of the following ways:

a.      if the vendor has received the proposal acceptance, by the deadline referred to in Article 6;

b.      if the acceptance deviates from the proposals on any point, or with respect to any part, the agreement will only be formed if and insofar as the vendor has agreed in writing to this deviation;

c.      in the event of a sale from warehouse stock, the invoice will be regarded as the written confirmation;

d.      at the moment at which the vendor has started execution of the assignment at the request of the purchaser.

8.        Acceptance implies agreement with these general terms and conditions and relinquishment of own (purchase) conditions if and insofar as these deviate, or are contrary to, these terms and conditions or applicable Dutch law.

9.        A proposal will be regarded as not having been made if and insofar as implementing this proposal or this agreement would lead to actions which are contrary to mandatory legal provisions and regulations. In that case, neither the vendor nor the purchaser can exercise any rights vis-à-vis the other party.

10.     All offers or proposals are based on details, drawings and derived dimensions and measurements carried out by the vendor issued with the proposal by the purchaser, insofar as these have taken place. Designs, illustrations, drawings, price lists, catalogues, statements of measurements and weights, specimens and models which have come from the vendor are to be as accurate as possible and only binding insofar as such has been explicitly confirmed. Details do not need to be issued. Small differences in implementation are possible and do not constitute any grounds for invoking Article 41.

11.     The vendor reserves the copyright to, and the ownership of, the designs, illustrations, drawings, samples, specimens and models which are issued with the proposal. They may not be copied or made available to third parties without the vendor's permission. They must be immediately returned at the vendor's first request, with failure to do so meaning that the purchaser will owe the value thereof, which is yet to be determined, without prejudice to other legal measures which are available to the vendor in order to uphold its rights.

12.     An agreement can only be amended or cancelled if the vendor gives its written permission.

13.     If the purchaser wishes to amend or cancel the agreement entered into, it will be obliged to reimburse to the vendor all the damage and costs resulting from said amendment or cancellation.

 

PRICE AND PAYMENTS
 

14.     The prices referred to in the proposal are fixed and exclude turnover tax, import and export duties, import and export tax, transport insurance, packaging costs, customs clearance costs, consulate costs and all other possible costs which the vendor reasonably hast to incur in order to deliver the goods sold at the agreed place and time. The basis for determining the amount of these costs will be the costs actually incurred, paid and/or to be paid by the vendor.

15.     If, after proposal and acceptance but before execution of the agreement, a change in cost-determining factors results in the cost price/estimate price for the vendor increasing by more than 10%, the vendor will be entitled to charge on this increase to the purchaser and the purchaser will then have the choice of (i) accepting the increased price or (ii) regarding the original proposal or agreement as not having taken place or entered into, without any rights or obligations arising between the vendor and the purchaser. In the event of a change, the vendor will inform the purchaser within three days after the change has become known and the purchaser will communicate its choice to the vendor within three days thereafter.

16.     Unless agreed otherwise in writing the purchaser is obliged to pay the purchase price, including the cost as referred to under 14 within 30 days after the invoice date, in a manner indicated by the vendor, without any deduction, discount or set-off being permitted. Unless agreed otherwise, payments must be made in euros.

17.     If, before the delivery or execution, the vendor has any doubts regarding the purchaser's creditworthiness, the vendor will be authorised to suspend the agreement until surety has been provided. The vendor is entitled to dissolve the agreement, if the purchaser cannot provide this surety.

18.     In the instance referred to under 17, the vendor is entitled to reimbursement of costs and damage, including lost profit, which are caused by the measures taken by the vendor as referred to under 17. If the doubt regarding the creditworthiness is unjustified, the purchaser will not be entitled, barring intent or gross negligence bordering on intent on the part of the vendor, to reimbursement of costs or damage suffered in whatever form.

19.     If the purchaser does not fulfil its payment obligations on time, the purchaser will be in default purely by the expiration of the deadline to be observed on penalty of forfeiture of rights as referred to under 16, without any letter of demand or notice of default by the vendor being required and the purchaser will forfeit to the vendor late payment interest of 1.5% interest per month, with part of a month applying as a whole month. 

20.     The duty to pay the commercial interest does not prejudice the vendor's right to regard the (purchase) agreement as dissolved, without judicial intervention, after 10 days of default on the part of the purchaser, if the vendor declares its wish to do so in writing to the purchaser, in which case the purchaser is liable for all the damage suffered by the vendor, consisting of, among other things, loss of profit, (extra)judicial costs as well as the costs actually incurred in any proceedings, costs as referred to under 14, costs of extra transport, with these costs being fixed at 25% of the invoice amount excluding VAT.

21.     In the event of non-fulfilment or late fulfilment of the payment obligation by the purchaser, the collection costs will be for the purchaser's account. 

22.     If these costs are only extrajudicial collection costs, said costs will be fixed at 15% of the invoice amount, with a minimum applying of € 250, plus the applicable VAT. If a decision is taken to start legal collection proceedings, the purchaser will be liable for all reasonably incurred costs of proceedings and execution costs in addition to the aforementioned extrajudicial collection costs.

23.     The vendor is entitled to compensate any claims on the purchaser with all debts which the vendor might, or will, owe the purchaser.

24.     In the event of liquidation, bankruptcy, attachment or suspension of payments on the part of the purchaser, the vendor's claims will become immediately due and payable.

 

DELIVERY 
 
25.     The vendor will deliver the goods or perform the services at the place and time specified in the proposal or agreement. 

If the purchaser cannot deliver or perform at the agreed place and time due to actions by the purchaser, or as a consequence of force majeure, the delivery or performance will, if possible, take place at the purchaser's expense at a different location or within 14 days thereafter. If this is impossible, the vendor will be discharged from its obligations, such without prejudice to the purchaser's payment obligations. The purchaser must compensate the damage, including lost profits, if the impossibility of delivery or performance was caused due to actions by the purchaser or is regarded as being for the purchaser's risk.

26.     If the purchaser takes receipt of the goods or services offered at the agreed place and time, the goods will be regarded as having been delivered and the services will be regarded as having been performed at the moment of offering and the purchaser will owe the price and the costs referred to under 14 at that point in time. In addition, the purchaser will be obliged to compensate the vendor for damage and extra costs which have occurred as a consequence of the purchaser's refusal.

27.     The purchaser will ensure that any details which the vendor has indicated as being essential, or with regard to which the purchaser reasonably ought to understand are essential for the execution of the agreement, are provided to the vendor in good time. If the details required for the execution of the agreement are not issued to the vendor on time, the vendor will be entitled to suspend execution of the agreement and/or to charge the purchaser the extra costs resulting from the delay in accordance with standard rates.

28.     In the event of a sale with actual delivery taking place on an 'on demand' basis, the purchaser must issue demands for goods in such a way that all the goods have been delivered within three months after formation of the agreement, unless a different deadline was agreed. If the purchaser remains in default, the provisions below under 25 will apply.

29.     The vendor is entitled to deliver the goods referred to in the proposal or agreement in parts (part deliveries). The vendor is always allowed to invoice for each individual delivery in the event of part deliveries.

 

QUALITY

 

30.     The purchaser is obliged, upon delivery, to check the goods delivered as regards the quantity and quality which it might expect on the grounds of the agreement, with failure to do so meaning that the goods will be regarded as having said quantity and quality. The purchaser must inform the vendor in writing immediately of any observed discrepancies as regards quantity or quality.

31.     In the case referred to under 25 the goods and services will be regarded as having the agreed quantity and/or quality.

32.     In the event of justified complaints with regard to quantity and/or the quality, for which the purchaser must give the vendor an opportunity, the vendor will, unless agreed otherwise in writing, deliver new goods as soon as possible or perform the services in a correct manner, in which case the vendor will not be liable for compensation vis-à-vis the purchaser.

 

RETENTION OF TITLE

 

33.     Notwithstanding the provisions under 34 the ownership and risk of the goods will be transferred to the purchaser upon delivery, whereby refusal to cooperate with the delivery as referred to under 26 will be designated as delivery.

34.     As long as the purchaser has not paid the full amount of the purchase price, plus any additional costs, the vendor will retain ownership of these goods.

35.     The purchaser undertakes to insure the goods delivered subject to retention of title against fire, explosion and water damage and theft. The purchaser is liable for damage to, or destruction of, the goods which are delivered subject to retention of title. 

36.     If the retention of title actually results in the vendor taking back goods, the purchaser will not only owe the vendor the costs actually incurred but also 25% of the invoice amount excluding VAT.

 

FORCE MAJEURE

 

37.     If the vendor is unable, through no fault of its own, to deliver the goods or perform the services purchased at the agreed place and time without the situation occurring as referred to under 25, the agreed delivery/performance time will be extended by one month.

38.     If, during that month, the vendor is still unable, through no fault of its own, to deliver the goods or perform the agreed services at the agreed place and time, each of the parties will be entitled to dissolve the agreement in question by means of a written declaration. This dissolution will not extend to the goods already delivered. The price for the goods delivered must be paid by the purchaser with due regard for the payment deadline stipulated in Article 16 of the general terms and conditions. 

39.     In the event of dissolution pursuant to Article 38, none of the parties involved in the agreement will be entitled to of any kind of compensation, including lost profits.

 
GUARANTEE OF SOUND DELIVERY/PERFORMANCE
 
40.     The vendor will do all that can be reasonably expected of it to ensure that sound products of a good quality are delivered, or that services are performed in a sound manner.

 

GUARANTEE
 

41.    The vendor is liable for shortcomings as regards the delivered goods subject to the following conditions and with due regard for the restrictions below.

42.    The guarantee period for new goods delivered is 6 months. The guarantee period commences on the date of delivery. 

43.    The purchaser can invoke the guarantee in the event of manufacturing, construction and material false, provided the purchaser has informed the vendor to that effect within a period of 8 days after receipt of the goods.

44.    The vendor's guarantee obligation will be limited to supplementation, replacement or repair, at the vendor's discretion, without the vendor being obliged to any additional compensation of any kind. 

45.    The purchaser must make the goods in question are available for inspection by the vendor. The goods or parts thereof to be supplemented, replaced or repaired must be sent to the vendor, with the delivery costs being paid for by the purchaser. Goods and/or parts replaced by the vendor will become its property.

The guarantee entitlement lapses in the event of:

·        the goods being used in a manner which is contrary to the manufacturer's instructions;

·        handling or use in a way which is different than what is considered normal for the goods;

·        the repair or replacement of parts and similar actions by persons other than those designated or authorised by the vendor;

·        damage caused by an accident, force majeure or gross negligence during the execution of the work by the purchaser or its employees.

The vendor is not obliged as regards any guarantee as long as the purchaser it has not completely fulfilled its payment obligation.

 

LIABILITY
 

46.    If the vendor is liable, this liability will be limited to the arrangements in this provision. 

47.    Unless an insurance policy taken out by the vendor covers the damage, or the damage can actually be recouped from the supplier of the vendor or another third party, the vendor will exclude, barring intent or gross negligence bordering on intent for the vendor vis-à-vis the purchaser, all liability insofar as this would lead to an obligation to reimburse which exceeds the net invoice amount. The above applies both to contractual and statutory liability for damage which the purchaser suffers directly or indirectly as a consequence of the purchase, presence, or use by itself or others, of the goods purchased, or in any other way, which conditional and limited exclusion of liability applies mutatis mutandis to the performance of any services. 

48.    All goods, even those sold with delivery costs having been paid, are to be transported at the purchaser's risk. Commitments entered into vis-à-vis third parties will not change the above and will be regarded as having been accepted in the interest and for the account of the purchaser.

49.    Unless the purchaser asks the vendor on time to insure the goods during transport, the goods will be transported uninsured.

50.    The vendor is never liable for indirect damage, including consequential damage, lost profits, missed savings and damage due to operational delays, with the exception of instances of intent or gross negligence bordering on intent on the part of the vendor.

 

 
 
INDEMNIFICATIONS
 
51.    The purchaser indemnifies the vendor against all liabilities relating to the designs, illustrations, drawings, measurements, models and the like used and/or fitted by the vendor at the request of the purchaser, as delivered by the purchaser to the vendor or otherwise. 

52.    The vendor is not liable in any way for the use of the trademark right/image right or any other third-party intellectual property and the purchaser indemnifies the vendor against third-party claims relating to the intellectual property rights relating to materials or data issued by the purchaser to the vendor, which are used during the execution of the agreement.

53.    The purchaser indemnifies the vendor against third-party claims relating to damage which is connected with, or results from, the agreement executed by the vendor, if and insofar as the vendor is not liable in this respect vis-à-vis the purchaser pursuant to the provisions of Article 47 ff.

 

APPLICABLE LAW
 

54.    The agreements entered into subject to these general terms and conditions are governed by Dutch law. The Vienna Convention [Weens Koopverdrag] is explicitly excluded. 

 

DISPUTES
 

55.    To the exclusion of other bodies, the district court of Zeeland-West-Brabant has jurisdiction as regards disputes which result directly or indirectly from an agreement entered into subject to these general terms and conditions, insofar as disputes fall within the jurisdiction of the district court in question. In the case of disputes which do not fall within the jurisdiction of the district court in question, the legal body which is authorised to hear disputes in the vendor's business location will be competent, to the exclusion of other bodies.

56.    Notwithstanding the provision under 55, the vendor is entitled to summon the purchaser to appear before the competent legal body in the purchaser's place of residence.