GENERAL TERMS AND CONDITIONS OF SALE FLOOR VAN SCHAIK – GROEN VOF
Article 1. Definitions
FvS: the partnership Floor van Schaik – Groen vof, established and with its headquarters at the Kryptonstraat 45, 6718 WR Ede, registered with the Chamber of Commerce under number 59508485.
Customer: the opposite party of FvS.
Agreement: the agreement between Customer and FvS regarding the supply of metal products and systems for gardening and related markets, if necessary including additions made of plastic and/or other materials.
Good/Goods: the Good/Goods sold and supplied by FvS.
Conditions: these general terms and conditions of FvS.
Written: in writing or via e-mail, fax or another electronic or analogue or digital message that has reached the Customer and/or FvS.
Article 2. Applicable conditions
- The Conditions apply to all promotions, quotations and agreements between FvS and a Customer for which FvS has deemed these conditions applicable, insofar Parties have not deviated from these Conditions expressly and in writing. Making an Agreement with FvS means that the Customer completely accepts these Conditions.
- Any deviations on these Conditions only apply if these are expressly agreed upon and are only applicable to the specific Agreement to which the deviations are related.
- If one or more provisions in these Conditions are at a certain point wholly or partly invalid, all other provisions of these Conditions still fully apply. FvS and Customer will agree upon new conditions to replace the invalid or removed provisions, in which case the purpose and intent of the original provisions will be taken into account as much as possible.
- The applicability of any purchase or other conditions of Customer is expressly rejected.
- FvS remains the right to amend or add to these Conditions. Changes also apply regarding Agreements that were already made, taking into account a term of thirty (30) days after announcing the changes through a(n) (electronic) message. Minor changes may be introduced immediately.
- If the Customer does not want to accept a change in these Conditions that he/she deems to have a negative effect on him/her, he/she needs to inform FvS about this prior to the date on which the new terms take effect. FvS can retract this change, which means that it does not apply to that Customer any more. If FvS does not with to retract this change, the Customer is allowed to terminate the agreement on this date or on the date of the receipt of the notice, if this is later than the date of the amendment to the Agreement.
- If these Conditions and the Agreement contain conflicting provisions, the terms in the Agreement shall apply.
Article 3. Promotions and communication
- All promotions are without obligation, unless specified otherwise in the tender.
- If Customer provides FvS with data, drawings, and other information, FvS may rely upon the accuracy and completeness, and may base its offer upon this information.
- The prices mentioned in the promotion are based on delivery FCA, in accordance with the Incoterms 2010, unless stated otherwise in writing. The prices are excluding vat and packaging.
- If the Customer does not accept the offer of FvS, FvS has the right to charge all costs related to making the offer to the Customer.
- If FvS deems it necessary, FvS is allowed to request a complete advanced payment from Customer, or a reasonable advance. If Customer is based in a foreign county, complete advanced payment is always required.
- The Agreement between FvS and Customer will only be established after FvS has sent the Customer an order confirmation.
- For deliveries for which – because of the type and/or size – no quotation or order confirmation is required, the start of the delivery is to be considered an order confirmation.
- If the financial circumstances of Customer substantially deteriorate after establishing the Agreement, yet before delivery of the Goods, FvS is allowed to wholly or partially refrain from further execution of the Agreement, or demand a change in the payment conditions.
- Communication between Customer and FvS can be done electronically, except in cases that differ from Agreements with the Customer, in these Terms and Conditions, or by law. The version saved by FvS regarding that communication is the proof of this, unless the Customer is able to prove something else.
- Electronic communication from FvS to Customer is deemed to have been received on the day of mailing by Customer, unless the Customer proves otherwise. To the extent that communication is not received due to delivery and/or accessibility issues related to the inbox of Customer, this is the risk of the customer, even if the inbox is hosted by a third party.
Article 4. Delivery and terms
- If for the delivery of certain Goods, a term is agreed upon or mentioned, this term is an approximate term. Therefore, if this term is exceeded, the Customer needs to write a notice of default to FvS. FvS needs to be offered a reasonable term in order to be able to deliver the Goods.
- Delivery is FCA, in accordance with the applicable Incoterms, unless agreed upon otherwise in writing. Delivery can be done in phases.
- The delivery terms provided by FvS will only take effect from the moment the Agreement has been concluded, and all data needed for the execution of the order needs to be in the possession of FvS. Any delivery delays will not lead to a termination of the Agreement, unless FvS has exceeded all reasonable limits in this case. Delivery times can be extended and/or provided orders can be suspended for the period of time that the Customer has not paid the payable amount to FvS.
- FvS is entitled to suspend the start of the execution of the Agreement, unless the payment or advanced payment has been made in full or sufficient securities have been established.
- Upon delivery, the risk of the said Goods and everything related to it transfers to the Customer.
Article 5. Shipping and packaging
- If an agreement for transport has been made with FvS, the method for this shipment will be decided upon by FvS, in the best way possible.
- Shipping costs will be charged.
- Any specific requests of the Customer related to the shipping will only be executed if the Customer has agreed to pay the extra costs for this.
- If the Client requests delivery in another way than usual, FvS can charge the Customer with the costs for this other method.
Article 6. Goods that were not purchased
- The Customer is obliged to purchase the Good or Goods mentioned in the agreement after delivery and/or the end of the performance period.
- Customer needs to cooperate in a reasonable way to allow FvS to deliver the Goods.
- If Goods are not purchased, these will be stored at the expense and risk of the Customer.
- In case of violation of the paragraphs 1 and/or 2 of this article, Customer owes FvS a penalty of €250 a day, with a maximum of €25,000. This penalty can be legally claimed, in addition to compensation.
Article 7. Intellectual property rights
- FvS retains the rights and powers it is entitled to under the intellectual property laws and regulations.
- For all Goods designed and developed by FvS, including (sample) models, molds, samples, drawings, offers, designs, software, and so on, the intellectual property rights are owned by FvS.
- The provisions in this article also cover Goods of which the Customer knows or should know that these are owned by FvS and that there is a case of (intellectual) property, even if it is not identified as such.
- FvS declares that, to its knowledge, the Goods do not infringe the intellectual property rights of others in the Netherlands. However, FvS cannot indemnify Customer for any infringements of intellectual property rights of third parties.
- Customer guarantees not to infringe (or allow or enable third parties to do so) on the intellectual property rights of FvS, or her suppliers, when it comes to the Goods, for example by copying, editing or duplicating the Goods.
- FvS has the right to use the knowledge gained by performing the agreement for other purposes, provided that no confidential information of the Customer will be made available to third parties. Information is deemed to be confidential if the other party has mentioned this, or if this could reasonably be assumed.
- The rights mentioned in paragraph 1 of this article remain the property of FvS, regardless of any costs that might have been charged to the Customer for the creation of it. These data cannot be copied, used, or shown to third parties, without express written consent of FvS. In case of violation of this provision, Customer is owed an immediately payable penalty of €25,000 to FvS.
- This penalty can be legally claimed, in addition to compensation.
Article 8. Warranties and claims
- Goods that are to be delivered by FvS meet the usual standards that can reasonably be expected at the time of delivery, and for are suitable for regular use in the Netherlands, or they meet the requirements that are specifically set out in the Agreement.
- The warranty mentioned in this article specifically applies to Goods that are intended for use in the Netherlands. For use outside of the Netherlands, the Customer needs to verify if the product is suitable, and meets the requirements set for this type of use. In that case, FvS can set other warranties and conditions related to the Goods that need to be delivered.
- Customer can only invoke warranties if he has fulfilled all it obligations towards FvS.
- The Customer is obliged to examine the Goods immediately at the time that the Goods were made available to him. The Customer is obliged to find out if the quality and/or quantity of what has been delivered corresponds to what has been agreed upon and meets the requirements that both parties agreed upon.
- Any visible faults need to be reported in writing to FvS within seven (7) days after delivery. Any non-visible faults need to be reported to FvS in writing immediately, or at the latest within fourteen (14) days after they have been discovered. The report needs to contain a specific description of the fault, which allows FvS to come up with a suitable solution.
- The Customer should allow FvS to investigate a complaint.
- All warranty is void if the faults are the result of:
- regular wear and tear;
- improper use;
- lack of proper maintenance;
- installation, assembly, modification, or reparation by Customer or third parties;
- defects of or unsuitability of Goods originating from or prescribed by Customer;
- lack of or unsuitability of materials or resources used by Customer.
- No warranty is given on:
- supplied Goods that were not new when they were supplied;
- the inspection and repair of Goods of Customer;
- parts which are covered by manufacturer’s warranty.
- If it is clear that a product is not in a good condition and the complaint about this has been filed in time, FvS will – at its own discretion – replace or repair the Good, if this has been returned within a reasonable time frame, or pay a replacement fee to the customer. In case of replacement, the Customer is obliged to return the Good to FvS and make the property available to FvS, unless FvS indicates otherwise.
- In case of warranty issues, FvS is entitled to charge the costs of travel, accommodation and transport to the customer.
- If a complaint is unfounded, the costs incurred by FvS, including research, will be borne by the Customer.
- The filing of a complaint does not relieve the Customer of its payment obligations towards FvS.
- It is only possible to return goods after the explicit consent of FvS.
- The provisions of this article shall apply to any claims of the Customer based on breach of contract, non-compliance, or any other basis.
- Customer cannot transfer any rights under this article.
Article 9. Invoicing and payment
- Payments need to be made within fourteen (14) days after the invoice date, unless agreed upon otherwise in writing. Claims regarding invoices need to be made in writing within ten (10) days after the invoices have been sent.
- If a Customer does not succeed in the timely and/or full payment of an invoice, the customer is in default. Customer is then owed an interest of 1.5% per month or part of the month, unless the statutory interest rate is higher, in which case the statutory (commercial) interest is owed. The interest on the amount due shall be calculated from the time that the Customer is in default, until the moment of payment of the full amount owed.
- If payment reminders need to be sent to Customer, the Customer is owed €15 per reminder/warning letter. These are administration costs.
- If the Customer is still in default and does not pay the invoice in a timely manner/in full, any discounts granted by FvS will expire.
- The Customer is never allowed to deduct the amount that is owed to him by FvS. Objections regarding the amount of a bill will not suspend the payment obligation. Customer who is not entitled to object based on section 6.5.3 (articles 231 – 247 book 6 CL) is also not entitled to suspend payment of the bill for any other reason.
- If the Customer is in default or does not fulfil its obligations (in time), all reasonable costs incurred in obtaining the payment out of court will be borne by the Customer. The extra judicial costs are 15% of the outstanding amount, with a minimum of €250.
Article 10. Retention of title and lien
- All goods supplied by FvS within the framework of the Agreement will remain the property of FvS, until all obligations under the Agreement(s) with FvS have been properly fulfilled.
- Goods supplied by FvS subject to retention of title cannot be resold, except as part of its normal business, unless FvS has ordered the Customer in writing to immediately make the Goods available to FvS. The Customer is not allowed to pledge goods or mortgage them in any other way, if these are subject to retention of title.
- The Customer is obliged to insure the goods subject to retention of title.
- If FvS wants to exercise its property rights designated in this article, Customer gives its unconditional and irrevocable consent to FvS and third parties appointed by FvS to enter all places where the property of FvS can be found, and reclaim those goods. If Customer does not cooperate, Customer is owed FvS a fine of 10% of the invoice value of the Goods for every day he remains in default.
- If FvS cannot invoke retention of ownership, because the Goods are mixed, transformed, or copied, Customer is obliged to pledge the newly formed Goods to FvS.
- FvS holds the right of retention for all Goods of Customer under FvS, for as long as Customer does not fulfil its obligations towards FvS. The risk of the Goods remains with the Customer.
Article 11. Liability
- If FvS is liable this liability is limited to what has been determined in this provision.
- The results that apply and the use of the studies and advices provided by FvS depend on many factors that are beyond the control of FvS. Therefore, FvS cannot give any guarantees regarding the results of the studies conducted by FvS or any given advice.
- FvS is not liable for damage, of any kind, resulting from advice given or studies conducted by FvS based on incorrect and/or incomplete data from the Customer.
- If FvS is liable for any damage, the liability of FvS is limited to a maximum of the invoice value of the Agreement, at least for the part of the Agreement that the liability relates to.
- FvS is only liable for direct damage. Direct damage consists of reasonable costs to determine the cause and extent of the damage, insofar the determination is related to the damage as determined in these conditions, any reasonable costs to make the poor performance of FvS meet the requirements of the Agreement, insofar as these can be attributed to FvS, and any reasonable costs made to prevent or limit damage, insofar as the Customer demonstrates that these costs have resulted in mitigation of the direct damage as provided in these Conditions.
- Not eligible for compensation is:
- consequential damage, such as stagnation damage;
- loss of production, loss of profit, transport, travel and accommodation costs;
- damage caused by intent or deliberate recklessness of auxiliaries or non-management employees of FvS.
- Customer indemnifies FvS for all claims of third parties due to product liability as a result of a defect in a Good supplied by Customer to a third party, and which also (partly) consisted of goods supplied by FvS. Customer is bound to pay for all damage suffered by FvS, including the (full) costs for defence.
- The liability for damages of FvS for damages regarding death or personal injuries is limited to the amount paid based on the relevant insurance policy that is concluded by FvS.
- Customer is obliged to report any damages in writing within fourteen (14) days after it occurred to FvS. If damages are not reported (in time), FvS is in no way obliged to undo the damage suffered by Customer.
- FvS does not accept any liability for any results of not having certain Goods in stock.
- After twelve (12) months after day of delivery, all rights of the Customer related to damages caused by any shortcomings and/or faults of FvS during the execution of the Agreement will expire.
- Limitations of liability in this Article do not apply if there is any damage that is the result of intent or gross negligence on the part of managers of FvS. This needs to be proven by the customer.
Article 12. Suspension, cancellation, and termination
- FvS is allowed to suspend the fulfilment of the obligation or terminate the Agreement, if:
- the Customer does not, completely, or in time, fulfils the obligations that arise from the Agreement;
- it comes to the attention of FvS after the conclusion of the Agreement that there is a reasonable chance that the Customer will not fulfil its obligations;
- the Customer does not provide (sufficient) securities to guarantee its fulfilment of the obligations under the Agreement;
- a delay on part of the Customer means that FvS can no longer fulfil the agreement based on the conditions that were originally agreed upon.
- FvS is also allowed to terminate the Agreement if circumstances arise that make the fulfilment of the Agreement impossible, or if any other circumstances arise of such nature that an unaltered fulfilment of the agreement cannot be reasonably expected of FvS.
- If FvS moves to suspend or terminate the agreement, he is in no way liable for damages and costs incurred.
- If the dissolution is attributable to the Customer, FvS is entitled to compensation for damages, including direct and indirect costs.
- If the Agreement is terminated, the claims of FvS on Customer are due immediately. If FvS suspends the fulfilment of the obligations, he shall retain his rights under de law and contract.
- Without prejudice to other rights accruing to FvS, FvS has the right to terminate or cancel the order or Agreement, without further notice, wholly or partly, and without a Written declaration, without any obligation to pay any damages or compensation, if:
- the Customer is in default when it comes to the performance of any obligations under the Agreement;
- the Customer has been declared bankrupt, has applied for an official moratorium, the Natural Persons Debt Rescheduling Act has become applicable, has closed down or liquidated his company, a major part of his fortune is repossessed or will be repossessed, or he transfers his company to third parties;
- In the event of dissolution, the risk of the delivered goods remains with the Customer.
Article 13. Force Majeure
- FvS is not obliged to fulfil any obligation to the customer if he is hindered because of circumstances that are not due to negligence, and neither by law, legal action, or generally prevailing views can be seen as his responsibility.
- Force majeure in these Terms, in addition to what is understood in the area of the law and jurisprudence, concerns all external causes, foreseen and unforeseen, that are beyond the influence of FvS, and result in FvS being unable to fulfil its obligations. Strikes within the company of FvS or third parties, as well as suppliers in default are included.
- FvS also has the right to appeal to Force Majeure if the circumstances that hinder the (further) fulfilment of the Agreement occurs after FvS was to have fulfilled its obligation.
- FvS may suspend the obligations under the Agreement during the period of Force Majeure. If this period lasts longer than two months, both parties are allowed to terminate the agreement, without any obligation to pay damages to the other party.
- Insofar FvS has partially fulfilled its obligations under the Agreement or will be able to fulfil these, and there is an independent value attached to this part, FvS is entitled to invoice this part separately. The Customer is obliged to pay this invoice, as if it were a separate agreement.
Article 14. Indemnification
- The Customer indemnifies FvS for any claims by third parties, who suffer any damages related to the execution of the Agreement and of which the cause is attributable to another party than FvS.
- If FvS should be addressed based on that by third parties, the Customer is required to assist FvS both in and out of court, and to immediately do all things that can be expected of him in that case.
- If the Customer fails to take adequate measures, FvS is entitled to proceed on its own, without notice. All costs and damages on the part of FvS and third parties that are incurred because of that, will be borne by the Customer.
Article 15. Applicable law
- Dutch law applies to all Agreements concluded by FvS. The Vienna Sales Convention (C. I. S. G.) does not apply, the same goes for any other international conventions that can be excluded.
- Disputes which may arise as a result of the Agreement between the parties or other agreements that have resulted from that will be settled by the arbitration of the DigiTrage foundation, established in Utrecht.
- This procedure will take place through www.digitrage.nl, in accordance with the Rules of Process of the DigiTrage foundation. The Rules of Process are published on the website that has been mentioned previously. The Rules of Process can also be requested from FvS and are part of the Agreement.
- All parties have the right to turn to the competent civil court, as long as the dispute has not yet been submitted to the DigiTrage foundation.
Article 16. Location and alteration terms and conditions
- These terms and conditions are registered with the Chamber of Commerce under number 59508485 and will be sent to you free of charge by FvS, upon request. These terms and conditions can also be read and downloaded online.
- The version that applies to the agreement is the most recent version or the version that was applicable at the time the agreement with FvS was concluded.
- The Dutch text of the general terms and conditions is always leading.