general terms and conditions
P.O. Box 10188
6000 GD Weert
6035 PC Ospel
GENERAL TERMS AND CONDITIONS
OF: Bertels B.V., a private limited liability company, having its registered office and maintaining business premises in Ospel, the Netherlands.
Seller: Bertels B.V., the user of these General Terms and Conditions; Buyer: the Seller’s counterparty, the customer, the client; Agreement: the agreement between the Seller and the Buyer.
1. All our offers, agreements and the performance thereof will be governed exclusively by these Terms and Conditions. Any deviations should be expressly agreed with the Seller in writing.
2. The applicability of the Buyer’s general terms and conditions is hereby explicitly excluded, unless the parties have agreed otherwise in writing.
3. If the Seller concludes Agreements with the Buyer more than once, the present General Terms and Conditions will apply to all subsequent Agreements, irrespective of whether or not same have been explicitly declared applicable.
4. If any provision of these Terms and Conditions is declared null and void or is nullified, the remaining provisions will retain their full effect. In that event, the null and void or nullified provision will be replaced by a valid provision the purport of which corresponds as closely as possible to that of the invalid provision.
1. Unless expressly stated otherwise, all offers made by the Seller, in whatever form, will be free of obligation.
2. Any estimates, plans or other documents will remain the Seller’s property at all times and must be sent back to it postage paid upon first request. Such documents may not be copied without the Seller’s permission, or be made available to third parties for inspection.
3. The dispatch of offers and / or other documentation will not oblige the Seller to accept an order.
4. The Seller reserves the right to refuse orders without stating its reasons. Any information, drawings and illustrations included in catalogues, price lists or documents provided with the offer are based on the standards normally applied in the relevant industry. Normal variations in materials and discrepancies in trade characteristics regarding quality, construction and colour will be permitted if unavoidable due to circumstances relating to the raw material in question or for technical reasons. No guarantee will be issued regarding specific weights and measurements. Any agreed quantity will be subject to a 10% margin, on the understanding that the Seller will be allowed - though not obliged - to adjust the price in accordance with any such deviation.
Article 4 Agreement
1. The Seller’s order confirmation will be considered a full and accurate reflection of the Agreement, unless the Buyer immediately lodges a written objection.
2. Any supplementary agreements or amendments will only be binding on the Seller if they have been confirmed by it in writing.
3. In the event of transactions for which, in view of their nature or scope, no offer or an order confirmation has been sent, the invoice will be considered to reflect the Agreement fully and accurately, unless a complaint is lodged within five working days of the invoice date.
4. In the event that a natural person concludes an Agreement on behalf or for the account of another natural person and/or legal entity, he / she will be deemed to declare - by signing the Agreement - that he / she is authorised to do so. This person, in addition to the other natural person or legal entity, will be jointly and severally liable for all obligations ensuing from the Agreement.
5. A composite quotation will not oblige the Seller to supply a part of the products included in the offer or quotation for a corresponding part of the price stated.
6. Each Agreement will be entered into by the Seller subject to the condition precedent that the Buyer - at the Seller’s exclusive discretion - appears to be sufficiently creditworthy to fulfil its financial obligations under the Agreement.
7. The Seller will be entitled at all times, either upon or following the Agreement’s conclusion, before commencing or continuing the performance thereof, to request security from the Buyer for the fulfilment of its payment and other obligations.
8. The Seller will furthermore be entitled - if it deems it necessary or desirable for the correct performance of the order placed with it and after consulting the Buyer - to engage the services of third parties for the performance of the Agreement, the costs of which will be passed on to the Buyer.
9. The Buyer will be obliged to provide the Seller in good time with all information and documents necessary for the correct performance of the Agreement.
Article 5 Prices
1. Unless otherwise stated, the Seller’s prices will be:
- based on delivery ex works, warehouse or other storage space;
- exclusive of VAT, import duties and other taxes, levies and duties;
- exclusive of the costs of packaging, loading and unloading, transport and insurance;
- in euros;
2. In the event of an increase, following the date of the acceptance of the order, in the prices of materials, auxiliary materials, raw materials, or parts obtained from third parties, or in wages, salaries, social security charges, government levies, freight charges and / or any other costs, also if it increase has resulted from a reduction in the value of the euro and also if has resulted from circumstances that could have been foreseen at the time of the offer, we will be entitled to increase the price agreed upon acceptance accordingly, with due observance of any statutory regulations.
Article 6 Cancellation
In the event that, following the Agreement’s conclusion, the Buyer wishes to cancel same, 10% of the order price (inclusive of Dutch VAT) will be charged in cancellation costs, without prejudice to the Seller’s right to full damages, including loss of profit.
Article 7 Delivery
1. The purchased goods will be for the Buyer’s risk from the time of the Agreement’s conclusion. Unless otherwise agreed, the Seller will determine the time and place of delivery. Carriage paid delivery will only be effected if and in so far as this has been agreed between the Seller and the Buyer and this is specified in the invoice or elsewhere.
2. The time of delivery will be considered to be the time at which the purchased items are ready for transportation.
3. The Buyer will be obliged to inspect the supplied goods and the packaging immediately upon delivery for any shortfalls and / or visible damage or to conduct this inspection after notification by the Seller that the goods are at the Buyer’s disposal.
4. Any shortfalls and / or damage to the supplied goods or the packaging discovered upon delivery must be reported on the consignment note, the invoice and / or the shipping documents by or on the instructions of the Buyer and must be confirmed by the carrier, failing which the Buyer will be presumed to have approved of the supplied goods. After that time, no such complaints will be accepted.
5. The Seller will be entitled to deliver in parts (partial deliveries), which it may invoice separately.
6. If the Seller has stated a delivery period, same must be deemed to be indicative. A stated delivery date may therefore never be considered a firm deadline. If a term is exceeded, the Buyer should give the Seller written notice of default.
7. If the Seller requires information from the Buyer in the context of the Agreement’s performance, the delivery period will commence after the Buyer has made such information available to the Seller.
8. If the Buyer fails to take delivery of the goods following the expiry of the delivery time, the goods will be stored at the Buyer’s disposal, at the Buyer’s expense and risk. After the expiry of 30 days, the Seller may freely dispose of the goods, without prejudice to the Buyer’s obligation to pay the purchase price or any similar obligations.
9. If the purchase involves an on-call order, the Buyer will be obliged to order the purchased goods within the time limit set for that purpose. If the goods have not been ordered within the said time limit, the Seller will automatically be entitled to deliver the goods not ordered to the Buyer.
10. The Seller will be entitled to deliver the goods C.O.D. (cash on delivery).
11. The Seller will be entitled, but not obliged, to insure the purchased goods on behalf and for the account of the Buyer.
Article 8 Transport / risk
1. The risk with respect to the loss of or damage to the products that are the subject of the Agreement will pass to the Buyer at the point in time at which same products are legally and / or factually delivered to the Buyer and therefore come under the Buyer’s control or under the control of a third party designated by the Buyer.
2. If the Seller is to provide for the transport or storage of the products that are the subject of the Agreement, this will be fully at the Buyer’s expense and risk.
3. If the Seller has not received any further instructions from the Buyer, the manner of transport, dispatch, packaging and such will be determined by the Seller with due care and in accordance with principles of sound commercial practice. Unless otherwise agreed, the Buyer will assume all risks, including the risk of any negligence or omission on the carrier’s part.
4. Any specific wishes of the Buyer regarding the transport / dispatch will be performed only if the Buyer has declared that it will bear the corresponding additional costs.
5. The Seller will be entitled to charge an amount for sustainable packaging materials, which amount will be specified in the invoice. If the Seller charges the Buyer such an amount, the amount will be set off following return of the packaging materials in good condition.
Article 9 Force majeure
1. The parties will not be obliged to fulfil any obligation if they are prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on the part of the party that is invoking that circumstance, and which is not for that party’s account pursuant to the law, a juristic act or generally prevailing opinion.
2. In these General Terms and Conditions, the term ‘force majeure’ must be understood to mean, in addition to its meaning according to the law and in case law, all external causes, foreseen or unforeseen, which the Seller cannot influence, such as tailbacks, computer failures, power failures, import and export impediments, acts of God, illness among staff and delays in supplies by suppliers, as a result of which the Seller is unable to perform its obligations. This will include strikes at the Seller’s company and at the auction house.
3. In the event that the Seller is of the opinion that the situation of force majeure will be of a temporary nature, the Seller will be entitled to suspend performance of the Agreement until the situation of force majeure has ceased to exist.
4. If, in the Seller’s opinion, the situation of force majeure is of a permanent nature, it will be entitled to dissolve the Agreement without being obliged to pay any damages.
5. The Seller will be entitled to demand payment of the performances delivered in the performance of the relevant Agreement before the situation of force majeure first occurred.
6. The party that believes that it is or will find itself in a situation of force majeure must so inform the other party immediately.
Article 10 Liability
1. The Seller will not be liable for any damage ensuing from the performance of the Agreement.
2. If the Seller is nevertheless liable for any damage, that liability will be limited to that part of the invoice amount corresponding with the part of the performance of the Agreement to which the liability pertains, and will be limited to the invoice amount, or in any event to the total amount due for the assignment, or to the amount paid out by the Seller’s insurer.
3. The Seller will under no circumstance be liable for any indirect damage, including consequential damage, loss of profit, loss of savings or any damage due to an interruption of business operations.
4. The Seller will under no circumstance be liable for any deterioration of the good due to improper storage, processing, use or maintenance by the Buyer or a third party.
5. The Seller will under no circumstances be liable for damage ensuing from incorrect use of the good, from use that is not in accordance with the instructions for use or the Seller’s directions, or from use for a purpose other than that for which the good is intended.
6. The Seller will under no circumstances be liable for damage ensuing from any advice given. Advice will always be given on the basis of the facts and circumstances known to the Seller and of mutual consultations, in which respect the Seller will always use the Buyer’s intention as a guideline and starting point.
7. The Buyer shall indemnify the Seller against any claims of third parties that may incur damage in connection with the performance of the Agreement and which is attributable to the Buyer.
8. The Buyer should ascertain in advance whether the purchased good is suitable for the purpose for which it intends to use same. Should it emerge in retrospect that the purchased good is not suitable for its intended use, the Seller cannot be held liable for any ensuing damage.
9. The limitations of liability with respect to direct damage laid down in these Terms and Conditions will not apply if the damage is attributable to an intentional act or omission or gross negligence on the part of the Seller or its employees.
Article 11 Complaints
1. Complaints will only be accepted by the Seller if they have reached the Seller directly, in writing, within five days of delivery of the relevant performance and clearly specify the nature of and grounds for the complaints. The Buyer will be obliged to offer the Seller the opportunity to investigate any such complaints.
2. Complaints regarding invoices must also be submitted in writing, within five days of the delivery date, unless a shorter time limit for the submission of complaints follows from the nature of the goods.
3. After the expiry of these time limits, the Buyer will be presumed to have approved the supplied goods or the invoice, as appropriate. After the said time limits have expired, the Seller will no longer accept any complaints.
4. The Buyer must enable the Seller at first request to inspect the goods sold in order to verify whether the complaint is well-founded.
5. If the Seller considers the complaint to be valid, it will be obliged only to deliver the agreed performance as yet.
6. If a timely complaint is submitted, the Buyer will remain obliged to take delivery of and pay for the purchased goods.
7. If the Buyer wishes to return defective goods, it may do so only after obtaining the Seller’s written permission. Return shipments must be effected carriage paid, undamaged and in the original packaging using a return form.
8. The Seller may require that the Buyer proves any complaints it has regarding the soundness of the supplied goods by means of a written statement issued by an independent expert, possibly to the exclusion of any other form of proof.
Article 12 Warranty
1. The goods will be covered by a warranty only to the extent that such a warranty has been explicitly agreed.
2. This warranty will be limited to manufacturing defects and will, in principle, cover the replacement of the supplied goods. Goods that have been modified, processed, treated or worked by the Buyer or a third party will not be covered by this warranty.
3. Components and additions acquired from third parties will not be covered by the Seller’s warranty for periods longer than the warranty period granted to the Seller by the third-party supplier.
4. The warranty will lapse if the Buyer and / or any third parties engaged by it use the supplied goods in an improper, negligent or inexpert manner.
5. If the Buyer will fail to perform any obligation ensuing from the Agreement concluded between the parties or fails to perform such in full or on time, the Seller will not be bound by the warranty issued by it as long as that situation lasts.
Article 13 Retention of title
1. Goods supplied will remain the Seller’s property until all deliveries made or to be made and work performed or to be performed by the Seller pursuant to the Agreement have been paid for by the Buyer, including any interest and costs. If the Buyer is granted a suspension of payments, judicially or otherwise, is declared bankrupt, is wound up or, if the Buyer is a natural person, dies, the Seller will be entitled to fully or partially cancel the order without any notice of default or judicial intervention being required and to claim back the part of the supplied goods for which no payment has been effected. Cancellation and recovery will not prejudice the Seller’s right to compensation for loss or damage. In such cases, all the Seller’s claims vis-à-vis the Buyer will fall immediately due and payable in full.
2. If third parties levy attachment on the products supplied subject to the retention of title or wish to create or enforce rights with respect to same, the Buyer will be obliged to inform the Seller thereof as soon as possible.
3. The Buyer will be obliged to keep all goods supplied subject to the retention of title with due care and recognisable as the Seller’s property and to insure them at new-for-old value against all standard risks. Any damages paid by the insurer will replace the aforementioned goods and will accrue to the Seller.
4. The Seller will be entitled at all times to recover the goods supplied subject to the retention of title from the Buyer or the Buyer’s custodians - or to have others do so - if the Buyer fails to properly perform its obligations vis-à-vis the Seller. The Buyer shall extend all necessary cooperation to the Seller and grant it access at its first request. Any goods recovered will be credited based on their current market value, following deduction of the recovery costs incurred by the Seller.
5. The goods may be used or resold by the Buyer in the context of its normal business operations, but may not be pledged or serve as security for any claims of third parties.
6. As security for proper payment of all its claims - on whatever basis - the Seller will furthermore acquire a non-possessory pledge - by the existence of the claim - on all those goods in which the goods supplied by it have been processed, or of which they are part. The order signed by the Buyer and the subsequent written acceptance by the Seller will be considered a private deed as referred to in the law.
Article 14 Payment
1. Unless agreed otherwise in writing, payment should be made in cash on delivery, without discount or settlement, or by means of payment into or transfer to a bank or giro account designated by the Seller, within the term set by the Seller for that purpose. The value day stated in the bank or giro statements will be decisive and will therefore be considered the date of payment. Objections to amounts stated in invoices will not suspend the corresponding payment obligation.
2. All payments made by the Buyer will first serve to settle any interest and any collection costs incurred by the Seller and subsequently to settle the oldest outstanding invoices.
3. If the Buyer has issued the Seller with a direct debit mandate for purposes of payment of the Seller’s invoices and the collection of the relevant amount is reversed, the Buyer will be obliged to pay the Seller the relevant invoice amount immediately in another manner.
4. If the Buyer:
a. is declared bankrupt, assigns its assets or files a request for a suspension of payments, or if attachment is levied on all or part of its assets,
b. dies, is placed under guardianship or is dissolved,
c. fails to fulfil any of its obligations pursuant to law or these Terms and Conditions,
d. fails to pay an invoice amount or a part thereof within the period set for that purpose,
e. discontinues or transfers its business operations or an important part thereof, which includes the contribution of its business operations to an existing company or a company to be incorporated, or initiates a change in its company’s objects; the Seller will be entitled, by the mere occurrence of one of the said circumstances, to dissolve the Agreement, or to demand full and immediate payment of any amount owed by the Buyer for services rendered by the Seller, without any warning or notice of default being required, without prejudice to the Seller’s right to compensation for costs, damage and interest.
Article 15 Interest and costs
1. If the Buyer fails to make payment within the period agreed, it will be in default by operation of law. In that event, the Buyer will owe the Seller 2% in interest per month or part of a month, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate will apply. The interest on the exigible amount will be calculated from the time that the Buyer is in default until the time of full payment.
2. Any judicial and extra-judicial costs incurred will be charged to the Buyer. The judicial costs will include all costs of legal and litigation assistance actually incurred during legal proceedings which exceed the collection rate of the Dutch Bar Association [Nederlandse Orde van Advocaten]. The extra-judicial collection costs will be fixed at at least 15% of the amount owed by the Buyer, including the said interest.
Article 16 Intellectual property
1. If, pursuant to the law, intellectual or industrial rights property rights are established on items such as models, drawings, designs etc., created by or on behalf of the Seller as part of its preparations for or performance of the Agreement, these rights will be fully vested in the Seller.
2. The Buyer guarantees the Seller at all times that the use of data or other items made available by the Buyer will not cause the Seller to violate any statutory provisions or infringe any protected rights of third parties. Furthermore, the Buyer will fully indemnify the Seller against any direct and indirect consequences of claims which third parties may exercise vis-à-vis the Seller pursuant to a violation of this guarantee.
Article 17 Applicable law
All the Seller’s offers and agreements and the performance thereof will be governed by Dutch law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
Article 18 Disputes
The court in the city or town where the Seller has its registered office will be competent to take cognisance of any disputes, to the exclusion of all other courts. Nevertheless, the Seller will be entitled to submit such disputes to the competent court according to the law or to an arbitration board.