General terms and conditions of delivery and sale of Combulex BV - Vianen
Article 1: General:
1.1 These general terms and conditions apply to all agreements entered into by Combulex
B.V., located in Vianen, The Netherlands hereinafter referred to as the seller, with another
party, hereinafter referred to as the buyer, who trades in the course of a profession or a
business. By mutual consultation, these
terms and conditions may be deviated from, but only in writing.
1.2 These terms and conditions apply to all agreements entered into by the seller, whereby
the seller undertakes to deliver goods and/or services.
1.3 Purchasing or other terms and conditions, if any, used by the buyer do not bind the seller
other than if and insofar as these are explicitly accepted in writing by the seller.
1.4 An explanation has to be provided for commercial terms used in quotations, order
confirmations or otherwise in accordance with the International Rules regarding the
Explanation of Commercial Terms, drawn up by the International Chamber of Commerce
(ICC Incoterms) such that these are in force at the time that the agreement is entered
into; insofar as these do not conflict with these general terms and conditions of delivery
and sale.
Article 2: Agreement:
2.1 Quotations, official lists and other forms of communication by the seller do not bind the
seller.
Agreements with the buyer will only become effective once there has been written
confirmation thereof by the seller.
2.2 Should there be any differences between the buyer's order and the seller's written
confirmation, only the seller's confirmation is binding.
2.3 If goods are ordered verbally (including by telephone) from a seller's employee, the order
will only be valid once accepted by the seller and once the agreement has come into force,
if the seller has not informed the buyer within a period stated below that it does not
accept the order, or not in the form in which it was made:
a. upon delivery from stock: within ten work days of the order;
b. upon delivery not outlined under a.: within four weeks of the order.
2.4 If in the seller's reasonable opinion the financial position of the buyer gives rise to this, the
seller is authorised to request advance payment or security and, pending that, to suspend
the entire or partial performance of the agreement. If this advance payment is not
forthcoming, or if this security is not provided in accordance with the seller's reasonable
wishes, the seller is entitled to dissolve the agreement by means of a single written
declaration and without legal intervention, without prejudice to the seller's right to
compensation should there be terms to that effect, and without the buyer being entitled to
damages.
2.5 All additions and changes to and further arrangements made under the agreement only
apply if these have been agreed in writing.
2.6 The goods are sold and delivered with due regard for the prevailing tolerances for
dimensions, amounts and weights, unless explicitly agreed otherwise.
2.7 The seller is not responsible for errors in illustrations, dimensions, weights, qualities and/or
prices/official lists.
Article 3: Force Majeure:
3.1 If after an agreement becomes effective it becomes evident that, as a result of force
majeure, the performance (of the agreement) is problematic or impossible for the seller,
the latter is entitled if so desired to dissolve the assignments, insofar as these still have to
be executed or to suspend the execution thereof; in these cases, taking into account the
circumstances of the event, the other party shall be informed as soon as possible.
3.2 Understood to be meant by force majeure is: a shortcoming of the seller that cannot be
attributed to the latter. There is a question of such a shortcoming if the fault does not lie
with the latter, plus if the latter is responsible for this in accordance with the law, juristic
act or in generally accepted practice.
3.3 In any case, the following circumstances are deemed to be force majeur (not limitative):
- natural disasters and diseases which are epidemic in nature;
- wars, international or national armed conflicts and preparations to that end;
- measures by national, foreign or supra-national governments, including, but not limited
to, decisions relating to an import quota system;
- halting the supply of necessary parts, materials, raw materials and/or semifinished
products;
- blockade or obstruction of transport routes, which includes traffic jams;
- strike action or labour disturbances; and; cut off of supplies by Utility Companies.
3.4 Deemed to be comparable to force majeure are unforeseen circumstances relating to
persons and/or material used by the seller in order to execute the agreement and
without which the execution thereof would be impossible, or become so difficult and/or
become disproportionately expensive, that prompt compliance with the agreement can,
in all reasonableness, not be asked of the seller.
3.5 If when the force majeure situation commences the seller has already partially fulfilled
its obligations, the latter is entitled to invoice separately for the goods that have
already been delivered and the buyer is obliged to pay this invoice as if this concerns a
separate transaction.
Article 4: Delivery time:
4.1 The agreed delivery times are always met.
4.2 Subject to the provisions of article 3 and also when force majeure is not an issue,
exceeding the estimated delivery time does not entitle the buyer to dissolve the
agreement and/or to compensation, unless the buyer can prove intentional act or gross
negligence of the seller.
Article 5: Quality and guarantee:
5.1 The seller only sells materials that, for various reasons, have been rejected and that,
therefore, do not meet quality standards that would normally be stipulated. The seller
therefore accepts absolutely no guarantee obligations with respect to the quality of the
goods that are sold or delivered. As is customary in agreements concerning similar
so-called "second choice goods" when the goods leave the warehouse, they are deemed
to have been irrevocably purchased and accepted in the condition they are in at that time,
without prejudice to the stipulations in point 5.2 below.
5.2 Immediately after delivery, the buyer should inspect the delivered goods for potential
variances to the goods in the agreement. The seller should be informed in writing of any
complaints within ten working days after the delivery date. Once the above-mentioned
period has expired, the delivered goods are irrevocably and unconditionally accepted by
the buyer.
5.3 Taking into account the stipulations above, if the buyer's complaint is valid, the buyer can
choose between redelivery or -in spite of proper written notice of default by the buyer
insofar as the seller has failed imputably- whole or partial dissolution of the agreement.
The buyer has to make the faulty goods available to the seller.
5.4 The seller does not guarantee and will never be deemed to have guaranteed or to vouch
for the fact that the purchased goods are suitable for the purpose for which the buyer
wishes to process, treat or use these goods or have these used. All of the aforementioned
is with due regard to the provisions under 5.1. Samples shall only be provided by way of
specification.
5.5 Neither the seller nor its employees nor third parties contracted by the seller are never by
whatever reason liable for any damage to the buyer or any third party relating to any
obligation to deliver, the delivery of goods, the delivered goods themselves or the use
thereof, or for any other activities or advice.
Article 6: Purchase, transport, unloading:
6.1 The sold goods are supplied from the warehouse unless explicitly agreed otherwise
between parties.
6.2 If the goods, irrespective of the agreed method of transport and delivery, are ready for
collection by the buyer and the seller has informed the buyer of this, the buyer is obliged to
collect these goods immediately. Not complying with this obligation entitles the seller to
store the goods and to continue to store the goods at the buyer's expense and risk and to
invoice the buyer without the buyer being able to refuse to make payment thereafter on
account of the goods not yet having been delivered.
6.3 When the transport has taken place by the seller, the goods are at the seller's risk until the
time of delivery at the agreed destination. As soon as the vehicle has arrived at the buyer's
destination, the buyer is obliged to unload this as quickly as possible. Should the buyer not
fulfil this obligation, the latter is liable for damages arising from that, such as damages
resulting from delay, storage elsewhere, etc.
6.4 When supplied from the warehouse, the goods to be delivered by the seller travel at the
buyer's expense and risk as from the time that they are loaded on the vehicle.
Article 7: Payment:
7.1 Every payment has to be made within thirty days of the delivery, at net present value and
without the buyer being entitled to any discount or deduction not explicitly agreed. Any
deviating payment schedules have to be agreed in writing.
7.2 The buyer is deemed to be in default with the payment without a demand for payment or
notice of default being required, after the expiry of the period stated in sub 1 if full payment
has not been made during that period, or if prior to the expiry of that period, the buyer
requests (extra) judicial moratorium on payment or is declared to be in a state of
bankruptcy.
7.3 In the event referred to in the previous section, until the day of settlement, the buyer owes
the seller interest on the sum that remains unpaid, in accordance with an interest rate of 2%
above the promissory note discount rate of the Dutch bank, added to which is the applicable
extra charge made by the bank on debit interest. If, in connection with overdue payment the
seller has to take (extra) judicial measures, all costs arising from that are at the expense of
the buyer, without prejudice to the right of compensation.
7.4 Irrespective of deviating provisions or payments the seller is entitled to all payments to be
made in the order chosen by the seller, offset against anything owed by the buyer pursuant
to deliveries, interest and/or costs to the seller.
Article 8: Retention of title and pledge:
8.1 The seller retains the right of ownership of all goods that it delivers to the buyer until the
purchase price of all these goods has been paid (and in the event that these are supplied on
current account: until the time of settlement of the balance potentially owed by the buyer). If
in the context of these sales agreements, the seller performs work on behalf of the buyer
that is to be paid for by the buyer, the aforementioned retention of title applies until the
buyer has already paid the seller's claims in full. The retained title for the claims which may
be acquired by the seller from the buyer on account of failures of the buyer in one or more of
its obligations towards the seller also applies.
8.2 Provided that the ownership of the delivered goods has not transferred to the buyer, the
latter may not pledge the goods or give a third party any other right to these goods, subject
to the provisions in sub 6 of this article.
8.3 Now for then, the seller herewith retains the pledges on the delivered goods that, through
payment, have transferred to the ownership of the buyer and that are still owned by the
buyer as referred to in article 3:237 of the Dutch Civil Code as additional security on claims,
other than the provisions of article 3:92, second paragraph of the Dutch Civil Code, which
the seller might have against the buyer for whatever reason. The other party is obliged to
cooperate in formal confirmation no later than 6 hours following a request to that end from
the seller.
8.4 The buyer is obliged to store any goods delivered under retention of title with the necessary
care and these have to be identifiable as property of the seller. The buyer is obliged to
insure the goods for the duration of the retained ownership against fire, explosion and
water damage, as well as against theft and, upon first request, to provide the seller with
the policies for these insurances for inspection. All claims made by the buyer against the
insurers of the goods pursuant to the aforementioned insurances shall, as soon as the
seller has indicated that it requires these, be pledged by the buyer to the seller in the ways
indicated in article 3:239 of the Dutch Civil Code, as additional security of the seller's claims
against the buyer.
8.5 If the buyer fails to meet its payment obligations towards the seller or gives the seller good
grounds to believe that it shall fail to meet those obligations, the seller is entitled to take
back the goods delivered under retention of title. After the goods have been taken back, the
buyer will be credited with the market value which, in no event, may be higher than the
original purchase price, reduced by the costs incurred when taking back the goods.
8.6 The buyer is permitted to sell and transfer to third parties the goods delivered under
retention of title within the scope of the normal execution of its business. In the event of
sale on credit, the buyer is obliged to stipulate a retention of title from its buyers as laid
down in the provisions of this article.
8.7 The buyer undertakes not to assign or to pledge to third parties any claims it receives
against its buyers without the prior written consent of the seller. Furthermore, the buyer
undertakes to pledge to the seller the aforementioned claims as soon as the seller
expresses a wish to that end in the ways indicated in article 3:239 of the Dutch Civil Code
as additional security for its claims for whatever reason against the buyer.
Article 9: Disputes:
9.1 Dutch law applies to all of the seller's agreements. Insofar as these general terms and
conditions of delivery and sale are also drawn up in a language other than Dutch, in the
event of disputes, the Dutch wording is always conclusive.
9.2 All disputes, including those only viewed as such by just one party, arising from or relating
to the agreement to which these terms and conditions apply, or relating to these terms and
conditions themselves and the explanation or execution thereof, both of a factual and legal
nature, shall be settled by the competent court in the district of the seller's principal place of
business.
9.3 If, in accordance with the law, a different court is competent than the court indicated in the
first paragraph of this article, within one week after the buyer has been informed by, or on
behalf of, the seller about the fact that the dispute shall be submitted to the competent
court in the district of the seller's principal place of business, the latter is entitled to declare
that it does not approve of invoking the first section of this article.
9.4 Without prejudice to the provisions in paragraphs 2 and 3 of this article, the seller is
authorised to submit the disputes mentioned in the second paragraph of this article to a
competent court in accordance with the usual rules of competence.
Article 10: Separate conditions for buyers in the Federal Republic of Germany:
10.1 The provisions of article 8 do not apply if the buyer has its principal place of residence or
principle place of business in the Federal Republic of Germany. Applicable to these buyers, as
far as the transfer of ownership is concerned, German law, as well as the following rule: The
goods that are delivered remain our property until all claims from the business relationships -
including a potential current account balance- have been paid. (Pledge or transfer of
ownership as a security before the ownership has been transferred is not permitted. We
have to be informed immediately of any pledges). Our retention of title is not discharged
through processing, connecting or mixing the delivered goods. The newly produced goods
resulting from the transformation accrue to us as co-owners in a ratio of the value of what
we delivered to the value of the new good. The claims to which the buyer is entitled resulting
from the sale or other obligation relating to the goods in respect of which we have made the
aforementioned retention of title, are transferred to us by the buyer as security until every
claim that we have has been paid in full, which is equal to the invoice amount of our goods
included in the goods that were resold. If, pursuant to the retention of title, we wish to take
possession of the goods, those goods have to be sent back to us carriage paid. The buyer is
liable for reduced value and for lost profit.
These General Terms and Conditions have been registered at the Chamber of Commerce in Utrecht, nr. 23029432 on February 4th 1999
