General terms and conditions of sale, supply and payment of the private limited company Impex Barneveld B.V., with registered offices at Barneveld, registered at the Chamber of Commerce, dated October 15th, 2015
Article 1 - General
In these general terms and conditions, Impex Barneveld B.V. is the company availing itself of these terms and conditions, while the other party is referred to as the Purchaser.
Article 2 - Applicability
2.1 These general terms and conditions shall apply to all offers, agreements and tenders, and all contracts arising from these, of and/or involving Impex Barneveld B.V.
2.2 Only these general terms and conditions shall apply to all offers, tenders, and agreements of and/or involving Impex Barneveld B.V, regardless of any (previous) references by the Purchaser to his/her own general terms and conditions. Impex Barneveld B.V. expressly rejects and has never accepted, any general terms and conditions declared applicable by the Purchaser.
2.3 Any clauses deviating from the general terms and conditions of Impex Barneveld B.V. shall only be binding if they have been accepted by the latter in writing.
Article 3 – Offer and Acceptance
3.1 All offers from Impex Barneveld B.V. shall be without obligation unless stated otherwise in a written offer. An agreement shall be deemed to have been entered into at the point at which the written offer is accepted by Impex Barneveld B.V. or the point at which the latter commences the execution of the agreement.
3.2 In the event that a tender contains an offer without obligation and this offer is accepted by the Purchaser, Impex Barneveld B.V. shall be entitled to revoke this offer within 2 working days of receipt of the acceptance.
3.3 Descriptions in tenders shall be as accurate as possible but shall not be binding upon Impex Barneveld B.V. Impex Barneveld B.V reserves the right to make changes of a technical nature. Impex Barneveld B.V. and its suppliers reserve the right to make changes to their products at their own discretion, be it with regard to materials, construction or form, without prior notice.
3.4 An agreement shall only be binding upon Impex Barneveld B.V. if confirmed in writing by the management or an authorised deputy manager. Orders accepted by representatives or other intermediaries/persons, for or on behalf of Impex Barneveld B.V., shall then be legally accepted, after they have been confirmed in writing by Impex Barneveld B.V., in accordance with the above.
3.5 An order already placed may only be cancelled with written permission from Impex Barneveld B.V., which shall then be entitled to charge a compensation of at least 15% of the value of the cancelled order, excluding VAT.
Article 4 - Delivery
4.1 Stated delivery times shall never be regarded as firm deadlines. In the event of late delivery, Impex Barneveld B.V. must be given notice of default in writing. Impex Barneveld B.V. shall never be held liable for consequences arising as a result of exceeding the delivery time.
4.2.a Unless otherwise agreed in writing, delivery shall be ex works. In this case, the goods shall be at the expense and risk of the Purchaser ex works.
4.2.b Impex Barneveld B.V. shall be entitled to deliver goods in parts. In this case, each part delivery shall be regarded as a separate transaction.
4.3 Impex Barneveld B.V. shall be entitled to suspend the delivery for so long as a Purchaser fails to fulfil all his/her obligations towards Impex Barneveld B.V. This suspension shall apply until the point at which the Purchaser has fulfilled these obligations.
Article 5 – Suspension
5.1 Impex Barneveld B.V. shall be empowered to suspend fulfilment of the obligations or to dissolve the agreement if, after the conclusion of the agreement, any circumstances that have come to the attention of Impex Barneveld B.V. give a good reason to fear that the other party will not fulfil the obligations.
Article 6 - Prices
6.1 All prices shall be in euros, apply to delivery ex works (warehouse or workshop) and exclude VAT, other levies imposed by the government, any transport costs and packaging.
6.2 In the event that changes occur in the factors determining cost price, such as but not limited to, changes in prices of essential auxiliary materials, raw materials, or parts of the goods to be supplied and/or changes in currency exchange rates, transportation costs, social security charges, import duties and other taxes, Impex Barneveld B.V. shall be entitled to incorporate these charges in the price.
6.3 Price increases resulting from additions and/or changes to the order shall be paid by the Purchaser in all cases.
Article 7 - Payment
7.1 Payment must be made, without any deductions, by the Purchaser within 30 days of the date of the invoice unless otherwise agreed in writing. Set-offs shall not be permitted.
7.2 All terms of payment shall be regarded as firm deadlines.
7.3 Impex Barneveld B.V. shall be entitled to demand advance payment, cash payment or payment of securities at all times.
7.4 In the event that Impex Barneveld B.V. has any claim against the Purchaser not arising from goods supplied or yet to be supplied, or from work carried out or yet to be carried out on behalf of the Purchaser, such as in respect of a claim due to defaults in respect of such agreements, payments received from the Purchaser shall first and foremost serve as payment for these claims.
7.5 Payments made by the Purchaser shall always serve in the first instance to settle all interest and costs owed, and subsequently to settle the longest outstanding invoices, even if the Purchaser states that the settlement relates to a later invoice.
7.6.a In the event that the Purchaser fails to fulfil one or more payment obligations, or fails to do so on time or in full, the Purchaser shall be deemed to be in default by virtue of law, and the Purchaser shall, without any requirement for notice of default, owe Impex interest from the due date of the invoice equal to the statutory interest on trade agreements as referred to in Article 6:119 a of the Civil Code. This interest is equal to the refinancing rate, which is fixed by the European Central Bank before its most recent basic refinancing operation to take place before the first calendar day of the six-month period in question, increased by 7%.
7.6.b In addition, all judicial and extrajudicial costs shall be at the Purchaser’s expense, in which connection the extrajudicial costs shall be set at 10% of the invoice amount with a minimum of €250.00.
Article 8 – Retention of title
8.1 Upon delivery of the goods, the risk, but not the title of the goods, shall be transferred to the Purchaser. All goods sold and supplied by Impex Barneveld B.V. to the Purchaser shall remain the property of Impex Barneveld B.V. for so long as the Purchaser has not fulfilled the claims of Impex Barneveld B.V. under the terms of these or similar agreements, and for so long as the Purchaser has not fulfilled the claims of Impex Barneveld B.V. due to failure to perform such agreements, including claims in respect of penalties, interest and costs.
8.2 So long as the Purchaser has not fulfilled his/her claims, he/she shall not be entitled to establish a right of pledge or a non-possessory pledge on goods supplied by Impex Barneveld B.V., and he/she undertakes, at the first request of Impex Barneveld B.V., to declare to third parties wishing to establish such a right of pledge on them that he/she is not authorised to do so. Furthermore, the Purchaser undertakes that he/she shall not sign any deeds as a result of which a pledge on the goods shall be established.
8.3 Insofar as Impex Barneveld B.V. cannot exercise a claim to the retention of title, as referred to in Article 8.1 of these terms and conditions, it shall transfer the supplied goods to the Purchaser subject to a non-possessory pledge.
8.4 In relation to the relevant stipulations in this Article, the Purchaser shall be obliged to provide cooperation in the drawing up and signing of a pledge agreement. The costs of this shall be charged to the Purchaser.
8.5 In the event that the Purchaser fails to fulfil the obligations arising from Articles 8.1 up to and including 8.4, he/she shall be liable to forfeit a penalty, payable immediately, of €2,500 (in words: two thousand five hundred euros) per day and/or part day that the Purchaser remains in default of his/her obligations arising from Articles 8.1 up to and including 8.4, without prejudice to the right of Impex Barneveld B.V. to claim full compensation.
Article 9 – Right of retention
9.1 Without prejudice to the legal right of retention, Impex Barneveld B.V. shall be entitled to retain any of the Purchaser’s goods to which he/she has a title until complete settlement of all payment owed, for whatever reason, by the Purchaser to Impex Barneveld B.V., unless the Purchaser has furnished adequate security with regard to this claim. Impex Barneveld B.V. shall also have the right of retention in the event that the Purchaser has been granted a provisional moratorium on payment, or he/she has been declared bankrupt.
9.2 In the event that the Purchaser fails to fulfil his/her (payment) obligations, Impex Barneveld B.V. shall be entitled, after giving notice of default, to reclaim the supplied goods, which, pursuant to the stipulation included in Article 8, have remained its property, as a result of which the (purchase) agreement shall be dissolved without the need for legal intervention. The Purchaser shall be obliged to grant Impex Barneveld B.V., or third parties appointed by the latter, access to the place(s) at which the supplied goods are located in order that they can be reclaimed by Impex Barneveld B.V.
Article 10 - Claims
10.1 The Purchaser shall be obliged to inspect the goods thoroughly for defects immediately after delivery and to inform Impex Barneveld B.V. without delay in writing in the event that any defects are discovered. In the event that the Purchaser fails to inform Impex Barneveld B.V. in writing of any defects, which could have been observed upon thorough inspection, within 8 days of the delivery date, the Purchaser shall be deemed to be satisfied with the condition in which the goods purchased were supplied, and all claims against Impex Barneveld B.V. regarding defects shall lapse.
10.2 The Purchaser may no longer make a claim for a defect in the performance that could not have been observed upon an initial thorough inspection (as stated in Article 10.1) if he/she has not protested to Impex Barneveld B.V. by registered letter regarding this matter within 8 days after he/she has observed or reasonably should have observed the defect. The Purchaser shall be deemed to be familiar with the functioning of the goods and shall undertake to instruct users accordingly.
10.3 The Purchaser must provide Impex Barneveld B.V. with the opportunity to rectify any defects at any time.
10.4 The Purchaser shall lose all rights and authority which he had with regard to defects if he/she fails to submit a complaint and/or has failed to give Impex Barneveld B.V. the opportunity to repair the defects and/or has failed to take the necessary care to discover the defects as quickly as possible within the periods stated above. The Purchaser shall also lose all rights and authority which he/she had with regard to defects if the goods are treated, processed, used, soiled or damaged in any way following delivery by Impex Barneveld B.V.
10.5 The Purchaser shall be obliged to prove that the goods with regard to which he/she has submitted a complaint are, in fact, goods that have been supplied by Impex Barneveld B.V.
10.6 Immediately following receipt of a complaint, Impex Barneveld B.V. must be given the opportunity to assess the complaint(s). In the event that Impex Barneveld B.V. is of the opinion that the complaint is justified, it shall, at its discretion, either pay compensation up to a maximum of the invoiced value of the supplied goods or replace the supplied goods free of charge following their return in their original condition. Impex Barneveld B.V. shall not be obliged to pay any further compensation or expenses reimbursement, however, named.
10.7 The Purchaser shall only be entitled to return goods following prior written agreement between Impex Barneveld B.V. and the Purchaser in this regard.
10.8 If Impex Barneveld B.V. reclaims goods under the terms of Article 10.7, it shall be entitled to carry out a technical inspection of the returned goods, even if the packaging is unopened, and to charge the Purchaser a fee of 10% of the gross sale price in that regard. In this case, Impex Barneveld B.V. shall also charge a fixed amount of € 25 for the partial reimbursement of administrative costs, warehouse handling and accounting procedures.
Article 11 – Guarantee
11.1 Impex Barneveld B.V. shall, for the duration of the guarantee period, be liable for the soundness of goods it sells or supplies.
11.2 Impex Barneveld B.V. shall assume liability for all defects that are proven to be inherent to any goods supplied by Impex Barneveld B.V. insofar as these constitute manufacturing or material faults, assuming any relevant complaints are effected in writing within the guarantee period, or the periods stated under Article 10.
11.3 The guarantee shall apply insofar as it is specified on a guarantee certificate or in any separate guarantee agreement, subject to the terms and conditions stipulated in the guarantee having been met.
11.4 Impex Barneveld B.V. shall also bear liability for any defects in the execution of installation work it has itself carried out, on condition that any such defects have been brought to its attention within 8 days of the work having been carried out.
11.5 The guarantee shall include the repair or replacement, free of charge, of any defective goods, or as yet executing properly the improperly executed order, the choice to be made by Impex Barneveld B.V. In the event that in the opinion of Impex Barneveld B.V., it is no longer possible or purposeful for Impex Barneveld B.V. to repair defective goods, to supply up-to-standard goods or to rectify any work carried out, the Purchaser shall be entitled to receive a credit, the maximum amount of which shall be equivalent to the invoiced value of the goods and/or services provided.
11.6 Claims against the guarantee shall expire in the event that:
Article 12 – Liability and warranty
12.1 Without detriment to the remaining stipulations of the present terms and conditions, no liability shall be borne by Impex Barneveld B.V. in respect of losses, whatever may be the cause thereof, including all direct or indirect losses, such as consequential loss or loss of profits. This shall not apply in the case of liability for losses wilfully caused by Impex Barneveld B.V. or losses arising as a result of gross negligence on the part of Impex Barneveld B.V., its employees and/or agents.
12.2 If and in so far as any liability should rest with Impex Barneveld B.V., for whatever reason, this liability shall always be limited, in the event of direct damage, to an amount of at most the invoice amount. In cases in which the consequences of the provisions in this article lead to manifestly unreasonable outcomes, this provision may be deviated from – after mutual consultation.
12.3 Liability on the part of Impex Barneveld B.V. shall at all times be limited to an amount for which Impex Barneveld B.V. is insured. As of 1 July 2015, the maximum amount payable per event shall amount to € 2,500,000.00. The maximum amount payable by the insurance, per annum, shall be € 5,000,000.00.
12.4 Claims for damages that arise as a result of the above shall be notified to Impex Barneveld B.V., in writing, no later than 8 days after they occur or following such time as the Purchaser was able to observe the damage. Non-compliance with this requirement may result in a lapse of any claim for payment of damages by the Purchaser.
12.5 Impex Barneveld B.V. shall not be liable for damage that occurs to its product, or for damage incurred by third-party products that were caused by an external cause. External causes shall include, but shall not be confined to, damage arising as a result of the water quality.
12.6 In the event that the Purchaser is located outside of the Netherlands and the Purchaser itself arranges for the transportation of the goods, the Purchaser shall remain liable to Impex Barneveld B.V. in respect of the actual export of the said goods from the Netherlands.
Article 13 – Exemption from tax claims
13.1 The Purchaser shall hold Impex Barneveld B.V. harmless in respect of all claims for taxation and in particular of those that relate to turnover tax and/or third parties in the event that the Purchaser does not act in accordance with the above.
Article 14 – Force majeure
14.1 Impex Barneveld B.V. shall not be obliged to fulfil any obligation, in the event that it is prevented from doing so as a result of a circumstance that is beyond its control and for which it is not liable in accordance with the law, a legal judgement or generally accepted legal doctrine.
14.2 In the event that Impex Barneveld B.V. is prevented from fulfilling its obligations in accordance with this Agreement, as a result of extraordinary circumstances, including, but not limited to, industrial disputes, fires, or a delay in the supply of raw materials, and/or semi-finished goods, whether these occur at the premises of Impex Barneveld B.V. or its suppliers, Impex Barneveld B.V. shall be entitled to execute the Agreement within a reasonable period, or, in the event that fulfilment within a reasonable period is impossible, to declare the Agreement to be terminated, either in part or in full.
14.3 In the instances referred to in items 14.1 and 14.2, the Purchaser shall not be entitled to terminate the Agreement and/or to receive compensation/damages, except for compensation as a result of a delay in performing the contract.
Article 15 - Software
15.1 The Purchaser shall not be permitted, without the prior, written consent of Impex Barneveld B.V. to dismantle, decompile, reverse engineer, integrate, combine with other hardware, copy, reproduce, propagate, translate, amend, implement variations or change the supplied software and/or program either wholly or in part, except where the law so allows.
15.2 Should the stipulations in the preceding paragraph be infringed, the Purchaser shall forfeit an immediately claimable penalty of EUR 25,000.00 per infringement to Impex Barneveld B.V., without prejudice to the right/title of Impex Barneveld B.V. to compensation of the whole damage as a result of the infringement.
Article 16 – Applicable law and disputes
16.1 All agreements entered into by Impex Barneveld B.V. shall be exclusively subject to the laws of the Netherlands.
16.2 In the event that, in accordance with the stipulations of the relevant legislation, a dispute is referred to a court of law, the Local Court of Arnhem (The Netherlands), or the court authorised in accordance with the law, shall have jurisdiction. The final choice in this regard shall rest with Impex Barneveld B.V.