General sales and delivery terms and conditions of Oomen Trading Europe BV (having its registered office and principal place of business at Werkmansbeemd 55 in Oosterhout
Article 1. Applicability
1. These general terms and conditions apply to all contracts that we enter into, as well as to all offers that we make and to all negotiations that we conduct prior to an offer.
2. No other general terms and conditions, such as those of the buyer, can apply to agreements with us and to offers that we make regardless of the time of reference, unless we as seller expressly and in writing in relation to the buyer have agreed to the applicability of those other general terms and conditions. This consent never implies that the buyer’s terms and conditions also apply to other agreements between us and them.
3. Any departures from these general terms and conditions may otherwise take place only by means of written statements signed by both parties.
4. The present terms and conditions also apply to all agreements with seller for which performance thereof requires involvement of third parties.
5. If one or more provisions in these general terms and conditions should be declared null and void or nullified, then the other provisions of these general terms and conditions shall remain in full force. Seller and buyer will then consult in order to agree to new provisions to replace the null and void or nullified provisions, taking into account the purpose and essence of the original provisions in as much as possible.
Article 2. Offers, agreements
1. All offers and price lists are without obligation. If the offer states a period of time, then this period serves only to bind the buyer. We can still withdraw our offer forthwith after receipt of the acceptance.
2. With the exception of the option to withdraw given in the preceding paragraph, an agreement is reached at the moment that we receive from the buyer a timely and written acceptance that fully corresponds to the offer. If the buyer accepts our offer with changes of minor significance, then these changes do not constitute part of the agreement with us and an agreement will be concluded in accordance with our offer.
3. If at the buyer’s request we perform any (partial) service before full agreement is reached about the principal obligation, then buyer shall pay for this service on the basis of the market rates in effect at that time.
4. The buyer ensures that all information, which seller indicates is necessary or which the seller is reasonably expected to understand that it is necessary for the performance of the contract, is provided to seller in a timely manner. If information required for the performance of the contract is not provided to seller in a timely manner, then seller has the right to suspend the performance of the contract and/or to charge to buyer any additional costs stemming from the delay according to the customary rates.
5. Seller is not liable for damages, of any nature whatsoever, due to seller using as a basis inaccurate and/or incomplete information provided by the buyer, unless this inaccuracy or incompleteness should have been known to seller.
Article 3. Prices
1. Our prices are exclusive of sales tax, any other taxes and duties, transportation costs and insurance costs, unless expressly agreed otherwise in writing.
2. The prices mentioned in the offer are based on the taxes, duties, wages, national insurance contributions, material and other costs in effect on the date of the offer. We have the right to pass on reasonable price increases (such as cost price increasing factors in materials, wages and taxes), insofar as they take place after the date of the offer or after the closing of the contract, even if the increase could reasonably have been foreseen at the time our offer was made or the contract was closed. We will inform the buyer of this passed-on price increase in writing.
Article 4. Delivery periods
1. The delivery period is indicated by the seller as accurately as possible. The seller is required to make every effort to perform within the indicated period.
2. The buyer has no right to any damages in any form whatsoever in the event the indicated delivery period is exceeded, unless this has been expressly agreed or if the delivery period is exceeded as the direct and immediate result of gross negligence or fault of the seller.
3. The buyer cannot cancel the order or refuse delivery and/or payment for the goods due to the delivery period being exceeded.
Article 5. Delivery and risk
1. Delivery takes place ex works (Incoterms 2000), therefore ex warehouse, unless expressly otherwise agreed in writing between parties. If delivery carriage paid is agreed, then the goods travel at the expense and risk of the seller. In all other cases, the goods travel at the expense and risk of the buyer.
2. The choice of transportation method lies with the seller.
3. If transport is at seller’s risk and damages and/or defects that can be observed upon arrival of the goods are not immediately noted on the accompanying consignment note, delivery note or a similar document to be returned, then seller is not liable.
4. The goods are considered to have been delivered by seller and accepted by buyer: a. upon delivery ex warehouse, as soon as the goods are made available to buyer; b. upon Delivered Duty Unpaid delivery: as soon as the goods are brought and unloaded on site.
5. For duty unpaid delivery, the seller does not have to transport the goods further than where the vehicle can travel on adequately passable and safe ground. Delivery always takes place next to the vehicle, while the buyer is required to take receipt of the goods there. In such a way, buyer and seller jointly see to the unloading so that seller can meet its obligation to unload as well as possible. Should the buyer fail in this, then the costs and damages stemming herefrom will be fully payable by buyer.
6. We have the right to make partial deliveries and cash on delivery.
7. If delivery takes places on the basis of “Incoterms”, then the “Incoterms” in effect at the time the contract is closed shall apply.
Article 6. Delivery on demand
1. If delivery on demand has been agreed without that periods for the order are set, then the seller has the authority to demand that the buyer determine a period within which everything will be demanded if not all goods have yet been ordered within three months after the purchase agreement was closed.
2. The period to be determined by buyer may not exceed three months, calculated from the day that the buyer could reasonably have known of seller’s demand.
3. The buyer is obliged to comply with aforementioned demand; upon failure to do so, seller is authorized to dissolve the purchase without judicial intervention and, if desired, to claim damages.
4. The delivery period can be extended at the buyer’s request only with our express approval. Any costs and losses or damages for us stemming from this extension will be payable by the buyer.
Article 7. Quantity
1. A consignment note, delivery note or similar document provided upon delivery of the goods must accurately state the quantity of the delivered goods unless the buyer reports his objection to this to the seller immediately after receipt of the goods.
2. Such a report does not give the buyer the right to suspend or offset any payment.
Article 8. Qualities, quality and complaints
1. Visible defects in the delivered goods must be reported by buyer immediately after receipt; in case of delivery, this must be noted on the accompanying document. Defects in the delivered goods that cannot be discovered immediately upon delivery must be reported to the seller in writing as soon as possible and in any case within eight (8) days of receipt of the delivered goods. Minor differences in quantities and sizes, among other things, that are deemed acceptable in trade cannot constitute grounds for complaints. The buyer is aware that the chance of such differences increases with partial and/or subsequent deliveries.
2. If we (have others) form/manufacture particular goods by order of the buyer, then buyer is obliged to purchase these particular goods and ensure payment in full. The buyer must approve any samples/proofs of the particular goods by return mail, as soon as these have been received by buyer.
3. If buyer was shown or given a sample or model, then this is assumed to present merely an indication and the goods do not have to conform to that, unless expressly agreed that the goods will correspond to that.
4. If, contrary to the provisions of paragraph 2, delivery is made not on the basis of a sample, proof or model, then the qualities and quality of the delivered goods are subject to the relevant provisions of the seller’s suppliers.
5. In the event of defects in the delivered goods, buyer has only claims against seller if the goods have not been processed.
6. If the buyer can enforce a claim according to the above provisions, then this does not give him the right to defer payment.
7. If we (have others) manufacture goods pursuant to the agreement on the instruction of and by order of the buyer, then buyer guarantees us that we are not violating the intellectual property rights of third parties. The buyer indemnifies us against any claims by third parties in relation to the violation.
Article 9. Liability
1. The seller’s liability, as meant in the previous article, as well as any other liability stemming from other facts or circumstances shall never exceed compensation for the invoice value or redelivery of goods, at the seller’s option and insofar as the seller is able to deliver similar goods.
2. The seller’s liability shall in any case never exceed the maximum amount that our liability insurance pays in such cases, plus the amount of the excess deductible in effect.
3. The seller is never liable for consequential losses and indirect loss of profits, immaterial damages, discontinuation damages, loss of orders, loss of profits, processing costs and such.
4. The buyer indemnifies us against all claims from third parties, unless these damages result from deliberate actions by the seller. Seller is not liable for unsoundness of the product. The manufacturer of the products will in such cases be the point of contact, as the seller does not manufacture the products itself.
5. The buyer in any case is obligated to supply clear instructions for use for the purchased product as delivered by seller to buyer or in which our products are processed in the language of the country in which the buyer will put the goods on the market – unless seller provides instructions for use, which may not be removed – in which it warns against the risks for both normal use and improper use of the product and/or the packaging in question.
Article 10. Packaging material
1. Packaging material (packaging, pallets etc.) that can be used multiple times to supply and/or deliver goods that is used by the seller will be invoiced separately on the invoice by the seller together with the delivered goods.
2. For returned packaging, as meant in the first paragraph, the seller will send buyer a credit invoice promptly after receipt hereof. Contrary to the provisions of the above, seller does not owe payment for packaging returned in poor condition.
Article 11. Returns
1. Returns are only accepted if agreed upon. The goods remain at the buyer’s risk.
2. Damaged goods and packaged goods whose packaging is missing or damaged can never be returned.
3. For returns, the seller has the right to charge a reimbursement of costs of a minimum of 25% of the corresponding invoice value.
Article 12. Force majeure
1. If the seller will be prevented from making delivery or making delivery in a normal manner due to a non attributable failure (force majeure), then he will have the right to extend the delivery period by the duration of the circumstances beyond his control or to cancel the order insofar as it has not yet been fulfilled.
2. Force majeure includes, but is not limited to: war, riots, civil disturbances, acts of war, strikes and lockouts, natural disasters, breakdown of machines and/or equipment, unavailability of transportation, delays in supply, government measures as well as any circumstance whatsoever which reasonably makes it impossible for seller to deliver in a normal or timely manner.
Article 13. Retention of title/nonpossessory pledge
1. All goods delivered by us to the buyer remain our property until the buyer has met all our demands stemming from the agreements made by us with buyer with regard to the delivered goods and services, plus interest and costs as well as all our other demands.
2. If the buyer creates or has someone else create a new product from the goods delivered by us, upon which lies a retention of title, he in doing so acts on our instruction and will keep the goods for us. The buyer becomes the owner when the retention of title no longer applies because all our demands have been met. The buyer agrees to insure and keep insured the goods delivered under retention of title against fire, explosion damage and water damage as well as against theft and to let us inspect the policy of this insurance upon our first request.
3. Provided we have no further demands on the buyer and we have delivered to the buyer goods and/or services upon which no retention of title lies, then the buyer creates a nonpossessory pledge on these goods in our favor as security for fulfillment of his obligations as we accept this nonpossessory pledge. Upon our first request, buyer shall sign a deed establishing right of pledge. Buyer shall guarantee that he is authorized to pledge the goods and that, aside from our rights, no pledge and/or restricted rights shall rest on the goods.
4. If the buyer resells the goods, then we can obligate him to create a right to pledge in our favor on his claim on the buyer stemming from the sale.
5. The buyer may not pledge the goods meant in this article to third parties or cede or transfer to them in any manner whatsoever the legal and/or actual disposition thereof, or limit this to our detriment.
6. Any and all costs associated with establishing and carrying out all necessary actions in relation to the retention of title, as well as right of pledge, are payable by the buyer.
Article 14. Payment and security
1. The total price (including sales tax) for that which was delivered in accordance with the contract is due and payable on the due date. The due date is the thirtieth day after the day on which delivery took place or the fifteenth day after the day on which the invoice in question was sent to the buyer, if this is later. Buyer is not authorized to offset or apply discounts and/or compensation.
2. The seller can increase the amount on the invoice with a credit restriction surcharge of two percent. This surcharge is owed by the buyer only if payment is made after the due date.
3. The buyer who has not made payment in full by the due date, without that any demand or notice of default is required, is in default and therefore owes interest on the due and payable amount. The interest, stated in this article, is equal to the legal interest plus 2% and accumulates as of the aforementioned due date until payment in full is made.
4. All costs associated with the collection of an unpaid invoice, both court and other costs, are payable by the buyer.
5. In any case, the buyer owes a fixed amount of costs, calculated according to the collection rate of the Dutch Order of Attorneys, as it is in effect at the time the buyer is in default. If seller shows that higher costs were incurred, which were reasonably necessary, then buyer must also pay these.
6. If in seller’s opinion there are grounds to do so, then seller has the right at any time to demand that the buyer provides adequate security for payment. Failure to provide such security gives seller the right to suspend the delivery, even if delivery on demand was agreed upon, or to dissolve the contract without recourse to the courts and, if desired, to claim damages. The purchase price of the goods already delivered will then become forthwith due and payable.
7. Seller has the right to apply payments made by buyer first toward costs and then to open interest and finally toward the principal and the accrued interest, regardless of the buyer’s description.
8. In the event of liquidation, bankruptcy, seizure or moratorium on payment of the buyer, the seller’s claims on the buyer shall be immediately due and payable.
Article 15. Guarantees
1. The guarantee obligations of the seller do not extend beyond the guarantee made to the seller by the manufacturer of that product, unless expressly agreed otherwise.
2. Seller is not responsible for the suitability of the goods for a specific intended use. This risk lies with the other party unless this is indicated expressly and in writing by seller upon closing the contract.
Article 16. Applicable law/disputes
1. All contracts entered into with seller shall be governed by Dutch law. The International Sale of Goods Treaty signed in Vienna is expressly excluded.
2. Any disputes between buyer and seller shall be settled by the competent court in the city where the seller is located.
3. The city of seller’s place of business shall serve as the city in which the contract is executed.
