GENERAL CONDITIONS OF SALE AND DELIVERY OF VEBA MEDITEMP B.V. HAVING ITS REGISTERED OFFICE IN UDEN
Article 1. Definitions
In these General Conditions the following terms have the following meanings:
The Seller: Veba Meditemp B.V.
The Buyer: the contracting party of the Seller in an agreement as referred to in Article 2.1 of these Conditions.
Working days: all calendar days, with the exception of Saturdays, Sundays, 1 January, Easter Monday, Ascension Day, Whit Monday, 25 and 26 December, the days which the Government has proclaimed or proclaims as national holidays and the day on which the birthday of H.M. the Queen is officially celebrated.
Days: All calendar days.
Article 2. Applicability and validity
2.1 These General Conditions apply to all offers and agreements by virtue of which the Seller sells and delivers goods of any nature whatsoever.
2.2 Deviations from and additions to these General Conditions or to the agreement are only valid if and insofar as they have been expressly confirmed by the Seller in writing. Any purchasing or other conditions of the Buyer are not accepted by the Seller and are not effective.
Article 3. Creation of agreements
3.1 All offers, price indications and the like made by the Seller are non-binding. The Seller will first be bound after the Seller has expressly confirmed an order in writing, even if the Seller has made use of an intermediary or representative. If no separate written confirmation is made, the invoice will take its place.
3.2 Without prejudice to the provisions in the preceding paragraph, if the Buyer accepts an offer of the Seller, the Seller is entitled to revoke his offer at latest two working days after the time of acceptance.
Article 4. Delivery and risk
4.1 The transport of the goods is at the expense of the Buyer, unless the invoice amount of the goods is greater than an amount to be determined by the Seller, in which case the transport is at the expense of the Seller. The aforementioned amount is at the election of the Seller.
4.2 The risk of the goods transfers to the Buyer at the time when loading of the means of transportation is commenced.
4.3 In the event of delivery free of charge the Seller will carry the goods to a location where the means of transportation will be on a site suitable for driving. The Buyer is obligated to take receipt of the goods at said site and to immediately unload them. If the Buyer fails to do so, the costs arising therefrom are at his expense.
4.4 If the Seller, whether or not on instructions of the Buyer, arranges transportation of the goods, the Seller is free in the choice of packaging, the transporter, the means of transportation, the route to be followed and any transport insurance to be taken out.
Article 5. Delivery times/delivery on demand
5.1 The indicated delivery time is approximate. If the delivery time is exceeded, the Seller has the right, without being liable for any compensation, to deliver the goods at latest eighteen days after the delivery time. If the Seller has not delivered the goods after the end of this extra (post) delivery time, the Buyer is entitled to dissolve the agreement.
5.2 If goods ordered are available for the Buyer but are not accepted by the Buyer, the Seller is entitled:
*either to deliver the goods by written notice to the Seller, in which case the goods will be stored at the Seller's or the transporter's as of the time of dispatch of said notice, at the risk and expense, including the risk of deterioration in quality, of the Buyer;
*or to dissolve the agreement with the Buyer in whole or in part in the manner set out in Article 9 hereafter and to sell and deliver the goods to (a) third part(y)(ies). In such case, if the Seller suffers damage as a consequence of the non-acceptance of the Buyer, the Buyer is liable for such damage.
5.3 If no times have been stipulated for delivery on demand, the Seller has the right to full payment three months after the order. If the goods set aside for delivery on demand have not been demanded within three months, the Seller has the right to summons the Buyer in writing that he will specify a term in writing within which time period the total quantity is to be taken, which summons the Buyer is to comply with within five working days, and the goods set aside for delivery on demand which have not yet been demanded will be stored at the Seller's or transporter's as of the first day following such period of three months at the expense and risk, including the risk of deterioration of quality, of the Buyer. The time period to be indicated by the Buyer after summons may not exceed a period of three months.
Article 6. Prices, invoicing and payment
6.1 All prices indicated by the Seller are nett and exclusive of turnover tax, unless expressly stated otherwise. Invoicing will be at the prices in effect on the day of delivery.
6.2 If the invoice amount of a lot which has been delivered is less than NLG 600 the Seller is entitled to charge a minimum supplement of NLG 10 for administration costs.
6.3 The Seller is entitled to grant the Buyer a payment discount. This discount will be at most:
*cash on delivery: 2% of the nett invoice amount;
*payment within 10 days after the invoice date: 1% of the nett invoice amount;
*payment within 30 days after the invoice date: nett.
6.5 Payment is to be made within 30 days after the invoice date without prejudice to the right of the Seller when entering into the agreement to demand a down payment. Payment is to be made without set-off or suspension under any heading whatsoever. The obligation of the Buyer to pay will remain in effect at all times, even if the Buyer had made arrangements with third parties regarding payments or engages third parties for payments.
6.6 Payment may also be demanded in instalments.
6.7 If the Buyer has not fully paid the amounts owing within the agreed term the Buyer will be in default after expiry of this term, without any need for notice of default. In such case the Buyer owes interest over the outstanding amount as of the date on which the outstanding amount became claimable up to the time of payment, which interest is equal to the statutory interest increased by three percent, without prejudice to the other rights of the Buyer.
6.8 If the Buyer has not paid the amounts owing within the agreed term the Seller is further entitled to collect the invoice judicially or via a collection agency, in which case all related costs, which are set at a minimum of ten percent of the claim, are at the expense of the Buyer.
Article 7. Force majeure
7.1 Force majeure means: any circumstance beyond the direct influence of the Seller or which could not be reasonably foreseen by the Seller which temporarily or permanently impedes performance of the obligations of the Seller under an agreement. Such circumstances are inter alia: restrictive government measures, mobilisation, war, threat of war, revolution, strike, seizure, attachment, disruption of production, natural disasters, ice, exceptional weather circumstances, lack of transportation means, default in whole or in part on the part of third parties from whom goods or services are received or lack of raw materials, semi-manufactured products, auxiliary materials and/or power supply.
7.2 In the event of force majeure the Seller has the right to either suspend performance of his obligations vis-à-vis the Buyer, or to dissolve the agreement, without judicial recourse and without being liable for any compensation, in whole or in part, at the election of the Seller.
7.3 Performance in one or more events of force majeure does not affect the right of the Seller to make use of the right to suspend or dissolve in subsequent events of force majeure.
Article 8. Retention of title and other security
8.1 Ownership in goods which are delivered first transfers to the Buyer after he has fully performed his payment obligations vis-à-vis the Buyer with regard to goods delivered or to be delivered under an agreement, as well as with regard to the claims for failure in the performance of such agreements. The Buyer has the right to dispose of the goods within the framework of his normal business. The Buyer will not grant third parties rights of security with regard to goods which are still the property of the Seller, unless the Seller has granted express permission herefore.
8.2 If the Buyer fails to perform his payment obligations vis-à-vis the Seller as described above, the Seller is irrevocably entitled, without the need for notice of default, to retrieve the goods for which it has retained ownership from the Buyer or to instruct said goods to be retrieved from the place where they are located. The Buyer is obligated to grant the Seller all cooperation if the Seller wishes to make use of the right to retrieve the goods.
8.3 In the event of doubt regarding the creditworthiness of the Buyer or for any other commercial considerations the Seller retains the right to demand advance payment or security for the first or later deliveries. If this demand is not met to the satisfaction of the Seller, the Seller is entitled to suspend or refuse performance of all agreements with the Buyer, without being liable for any compensation and without having to waive his other rights under this agreement or the law.
8.4 If the Seller demands such at any time, the Buyer undertakes to immediately grant a charge over the goods delivered by the Seller and/or the claims on third parties ensuing from resale by the Buyer of said goods as security for the performance of all his payment obligations to the Seller, in one of the manners described in Articles 237 and 239 of Book 3 of the Dutch Civil Code.
Article 9. Suspension and dissolution
If before the time of delivery to the Seller it appears that the Buyer is not creditworthy, if the Buyer does not perform any obligation to the Seller or does not perform such properly or in time, if the Buyer is declared to be insolvent or has petitioned for insolvent liquidation with the court, if the Buyer has petitioned for or been granted a moratorium on payment, if the business of the Buyer is halted or liquidated, if property of the Buyer is seized or if the Buyer is placed under guardianship, the Seller has the right to suspend performance of all his obligations vis-à-vis the Seller or to dissolve the agreements with the Buyer in whole or in part, without any need for notice of default or judicial intervention and without being liable for any compensation, without prejudice to the other rights of the Seller in such case.
Article 10. Guarantee and advertising
10.1 Announcements by or on behalf of the Seller regarding the quality, composition, application options, properties, processing in the broadest sense, etc. of goods delivered will only be considered guarantees if they have been expressly confirmed in writing by the Seller in the form of a guarantee.
10.2 The Buyer will comply with the regulations regarding the method of storage and handling of the goods. The Buyer will inspect the goods upon arrival or otherwise as soon as possible and to the degree that such can be reasonably demanded of him and/or is customary and will report complaints regarding damage, visible defects and/or missing items within eight days at most after receipt in writing to the Seller. The Buyer will report complaints regarding latent defects immediately after the Buyer has discovered said defects, but in any event no later than one month after receipt in writing to the Seller. If complaints are not lodged within this time period, the goods are deemed to have been approved and accepted.
10.3 Complaints will only be considered by the Seller if the damage or defects are the result of a shortcoming attributable to the Seller. Defects in part of the goods delivered do not give the Buyer the right to refuse all goods delivered by the Seller. The obligation to pay referred to in Article 6.5 above remains in effect in full, if and insofar as there is no attributable shortcoming on the part of the Seller.
10.4 When a complaint is held to be justified the Seller is bound to either replace the goods in question or to repair said goods, or to credit the invoice amount, at the election of the Seller.
Article 11. Liability
11.1 The Seller is only liable for damage suffered by the Buyer as a result of shortcoming, wrongful deed or otherwise if the damage is directly and solely the consequence of gross negligence of the Seller.
11.2 In the event the Seller is liable to the Buyer for compensation of the damage, such liability is limited to the invoice amount, reduced by the relevant turnover tax, of the delivery in question, with a maximum of NLG 5,000.
11.3 The Seller is not liable for damage arising from exceeding time periods, nor for consequential or indirect damage, including damage due to lost profit or lost savings.
11.4 In the event that the Seller is liable to the Buyer, the Seller is only bound to perform the obligations as described in Articles 10 and 11 of these General Conditions.
11.5 The Buyer indemnifies the Seller against claims of third parties. The Buyer will never hold personnel members of the Seller liable for third parties and personnel members of such third parties engaged by the Seller.
Article 12. Return shipments
12.1 The Buyer is to ship return shipments free of charge, accompanied by a written explanation. Said explanation must in any event state the date when the Buyer bought the goods in question from the Seller, as well as the date and the number of the relevant invoice.
12.2 Crediting of returned goods will only take place if the goods in question are still suitable for sale, in the opinion of the Seller.
12.3 Without prejudice to the provisions of the preceding paragraphs, crediting will take place on the following basis:
a. the goods to be returned must be undamaged and packed in the original packaging;
* return within three months after delivery: at most 75% of the nett invoice amount;
* return between three and six months after delivery: at most 50% of the nett invoice amount;
* return between six and twelve months after delivery: at most 25% of the nett invoice amount.
The Buyer will continue to owe the amount remaining after crediting, unless the contrary is expressly agreed in writing.
Article 13. Transfer of rights and obligations
The Seller is at all times entitled to transfer his rights and obligations ensuing from an agreement with the Buyer to third parties. The Buyer is obligated to fully cooperate with the Seller if the latter exercises this right.
Article 14. Adjustment of agreements
Amendments and additions to agreements already entered into are only effective if such have been expressly confirmed by the Seller in writing.
Article 15. Disputes and applicable law
15.1 All disputes relating to an agreement or the performance of an agreement between the Buyer and the Seller, which cannot be resolved in mutual consultation between the parties will be brought before the competent court in the district within which the Seller has his registered office. Contrary to the foregoing the Seller has the right to bring a dispute before the competent court in the area within which the Buyer has his registered office.
15.2 The agreements between the Buyer and the Seller are governed by Dutch law.