1.1. In these general terms and conditions, the following definitions are used:
seller: the private company with limited liability Solines BV Buizen & Staal in Moerdijk;
buyer: the party with whom the seller enters into or contemplates an agreement of purchase, assignment, contracting of work or any other agreement.
2.1. These general terms and conditions apply to all quotes from and agreements with the seller.
Deviations from these general terms and conditions can only be agreed in writing.
2.2. A deviation from these general conditions agreed in writing does not mean the sole reference by buyer to other terms and conditions.
2.3. Acceptance by the seller of an order from the buyer does not imply acceptance of the general terms and conditions of the buyer.
Prices and quotes.
3.1. All prices and quotes are without obligation, unless expressly agreed in writing to the contrary.
Seller can revoke quotes at any time as long as they have not been accepted in writing by the buyer.
3.2. All quotes are valid for the period stated in the quote. If no period is stated, the quote applies for twenty working days. A quote may be extended by the seller by a written notice to the buyer. Extension of the term of the quote will be for 20 working days unless otherwise agreed.
3.3. Additions and changes to, as well as further agreements regarding the agreed assignment only apply if they have been separately agreed in writing.
3.4. The seller’s prices are exclusive of turnover tax and other levies or taxes owed to the government and are determined on the basis of ex-works or ex-warehouse of the seller, as applicable.
3.5. Seller is entitled to change the agreed prices after the conclusion of the agreement, if cost price influencing factors give reason to do so.
3.6. Taxes, import duties, levies or other charges on building materials/transport imposed or changed by the Dutch government after the quote or introduced, reduced or increased after the conclusion of the agreement will be passed on.
Conclusion of the agreement
4.1. Orders and assignments are only accepted by the seller and are binding on seller if seller has confirmed them in writing.
4.2. The risk of inaccuracies and/or mistakes in orders and assignments not confirmed in writing is entirely borne by the buyer.
4.3. If the buyer orders a quantity of materials from the seller without specification, the buyer must, after the seller has confirmed the order, specify these materials within fourteen days or within any other period set by the seller. If the buyer fails to do so, the seller has the right to cancel the order without further notice, without prejudice to its right to full damage compensation under the Law. If the specification includes more than the seller’s confirmation, that gives seller the right not to deliver the excess, or to issue a new quotation and to conclude a new agreement for the excess.
4.4. If the transaction between the parties occurs with two or more (legal) persons, each of them is jointly and severally liable for the full payment, including interest and costs under these terms and conditions, of the order or order placed by one of them.
5.1. At the seller’s first request, even if the agreement has already been partially fulfilled, the buyer is obliged to provide security to the seller’s satisfaction in connection with the fulfilment of the obligations of the buyer under the agreement.
In the absence of sufficient security, the seller, after summons and notice of default, has the right to suspend the execution of the agreement, or to dissolve the agreement in whole or in part by means of a written notification, without judicial intervention being required.
5.2. Without prejudice to the seller’s right to damage compensation, in case of dissolution or suspension in accordance with the previous paragraph:
a. buyer irrevocably authorizes seller to actually take possession of all goods which are in the buyer’s possession and which have been delivered by seller and to enter company premises, building(s) and construction site(s) for that purpose. Buyer is obliged to indicate to seller at first request where the delivered goods are located;
b. insofar as the agreement has not been dissolved, the buyer will pay the price of goods already delivered immediately upon receipt of the request for security as referred to in paragraph 1 of this article;
c. insofar as the agreement has yet to be executed, the buyer is obliged to pay for the items still to be delivered to the seller before delivery, regardless of the payment conditions laid down in the agreement.
6.1. The place of delivery shall be, regardless of whether sold carriage paid, fob, cif or under any other equivalent or similar condition, the place where the materials are loaded into the ship, wagon, car or other transport with the destination agreed by the seller with the buyer.
6.2. If nothing has been arranged with respect to the transport, if the buyer also fails to make timely transport available, the place of delivery shall be the place where the materials are located at the time of the sale.
6.3. If transport of the goods sold has been agreed by or on behalf of the seller, the goods will be transported as close to the place of destination as permitted by the means of transport used, in seller’s opinion, without any objection and interference being possible.
6.4. In the case of ex-works delivery or from stock of ‘second choice’, ‘declassified’ and/or used materials, regardless of whether they have been inspected by the buyer, these are considered to have been delivered to and definitively accepted by the buyer at the factory or at the warehouse, in terms of quantity, nature, dimensions and weight.
6.5. In the event that buyer fails to pick up or take receipt of the materials, the seller is entitled either to consider the agreement dissolved with immediate effect or to store the goods at the expense and risk of the buyer and to claim the full purchase price, all without prejudice to seller’s right to full damage compensation under the Law.
6.6. If materials that are ready for delivery, due to circumstances independent of the will of the seller, cannot be transported to the place of destination, the seller is entitled to store these items at the expense and risk of the buyer and to claim the full purchase price.
6.7. For inland transport by or on behalf of the seller, the transport risk (excluding molestation) is insured by it, unless expressly agreed otherwise with the buyer. The seller shall never be liable for breach of contract by the carrier engaged by the seller, not even if the carrier himself has been held liable. Seller is fully discharged towards buyer if seller transfers to buyer any rights towards the carrier.
6.8. The packaging and shipping materials supplied by the seller are at the expense and risk of the buyer. Packaging and shipping materials cannot be returned.
7.1. The delivery terms that the seller agrees with the buyer are not final deadlines, so that no default occurs after the expiry of these terms.
7.2. The buyer is entitled to set for the seller a further deadline by registered letter.
8.1. When a part of an order is ready, the seller is entitled to deliver this part or to wait until the entire order is ready. If the seller delivers a part, the seller is also entitled to invoice for this part.
Basis for delivery
9.1. The basis for the payment obligation or the delivery shall be, in the case of delivery ex works, the weights determined by the factory and, in the case of delivery from stock, the weights determined on the weighing bridge of the seller or on a different weighbridge chosen by the seller.
Changes to the order
10.1. In the event of changes to the order or the drawings made at the request of the buyer after the conclusion of an agreement, resulting in more work for the seller than would have been necessary on the basis of the original order or drawings, the resulting additional costs will be charged to the buyer charged at the hourly rate applicable for the seller, without prejudice to the provisions of Article 3.
11.1. Payment must be made within thirty days of the invoice date, unless expressly agreed otherwise in writing.
11.2. The buyer can only rely on set-off or compensation if the buyer’s claim is acknowledged by the seller.
12.1. In case of non-(timely) payment, the seller is entitled to charge interest from the invoice date of 1% per month on the outstanding invoice amount or the statutory interest if this is higher than 12% per year at any time.
The seller is then also entitled to all costs incurred by the buyer in
connection with the collection of amounts owed by the buyer to the seller – both ‘judicial and extrajudicial’, including the costs that exceed the liquidation by the court.
12.2. Extrajudicial costs are owed by the buyer in any case in which the seller has relied for the collection of the assistance of a third party, and this from the date on which the seller has issued this third-party order for collection. These extrajudicial costs are deemed to be set at 15% of the outstanding principal sum, with a minimum of € 75.00.
The extrajudicial costs also include the costs of a possible bankruptcy petition, which costs are also due if the seller’s claim is paid before or during the bankruptcy petition.
12.3. Payments made by the buyer after the principal, interest and costs have been claimed from him pursuant to this article shall in the first place be deducted from the (extrajudicial and judicial) costs, then from the interest and finally from the principal sum.
If the buyer defaults toward the seller on any payment, all claims of the seller against the buyer, for whatever reason, become immediately due and payable.
13.1. The buyer is entitled to inspect materials (or to have this done). Inspection shall take place, depending on whether ex-works delivery or made from stock, either in the factory of origin or in the seller’s own stock depots in the usual manner by one or more persons appointed by mutual agreement between the parties.
13.2. Unless expressly agreed otherwise in writing, all costs related to the inspection are borne by the buyer.
13.3. If the buyer, after being informed that and of the manner in which inspection may take place, fails to proceed with the inspection within the period set by the seller, then buyer is deemed to have approved the materials.
14.1 The seller guarantees the soundness of the first choice materials sold and delivered by seller, on the understanding that the materials may in any case have such a deviation as is customary within the framework of the relevant industry or, if applicable, as permitted within the limits of the DIN and EURO standards.
14.2 All descriptions concerning weights, sizes, properties, etc. are approximate.
14.3 The seller is deemed to have fulfilled its guarantee obligation if the seller has replaced the faulty material without charging the buyer for this.
15.1. The buyer must check the delivered goods immediately after delivery for deviations from that which has been agreed.
15.2. Claims must be submitted in writing by registered letter and with due speed to the seller, but in any case no later than 14 days after the delivery or after the discovery of the defect.
After exceeding this period, the delivered goods are irrevocably accepted by the buyer and buyer’s right to make a claim has expired.
15.3. Processed goods are deemed to have been approved.
15.4. For second choice, declassed and used materials, any claim after delivery of the items, whether these have been received or approved by the buyer or not, is explicitly excluded.
15.5. If the buyer’s claim is well-founded, the buyer must return the defective material, after prior written permission from the seller, at the expense of the seller in the manner indicated by the seller.
15.6. The buyer can never derive from any complaint the right to suspend any payment and/or cancel any agreement with the buyer in whole or in part.
15.7. The seller is not obliged to accept complaints about defects if and as long as the buyer has not met the payment obligations and/or other obligations promptly.
Retention of title
16.1. The ownership of the delivered goods is transferred to the buyer first when the buyer has paid everything buyer owes to the seller for whatever reason or at any time.
16.2. If the buyer of the goods manufactures one or more objects, mixes the items with one or more objects or makes them part of one or more other objects, the seller will acquire the ownership of these objects at the time of this action.
16.3. The buyer is entitled to sell and deliver the goods on which the retention of title rests to third parties in the course of his normal business operations, as long as the buyer has no payment arrears with respect to the seller.
At the seller’s first request, the buyer will transfer the claim arising from this sale to the seller as long as the buyer has not fully complied with the payment obligations.
17.1. All goods delivered by the seller are given by the buyer to the seller in (possession free) pledge, this as security for the payment of all claims of the seller against the buyer, not relating to the delivered goods.
17.2. The buyer expressly declares that the buyer is authorized to pledge the items referred to in paragraph 1, and that there are no limited rights resting on the goods.
18.1. In the event of stagnation of the work, arising other than due to the actions of the seller or other than due to a cause that comes at the seller’s expense and risk, the resulting costs, insofar as existing in the payment of more hourly wages than would have been necessary for the performance of the agreed work without this stagnation, will be charged to the buyer at the hourly rate applicable for the seller, without prejudice to the provisions of Article 3 of these terms and conditions.
19.1. If the seller is prevented from performing the agreement due to force majeure, the seller has the right to suspend the performance of the agreement or to dissolve the agreement in whole or in part without judicial intervention, without being obliged to pay any damage compensation or being held to any warranty.
19.2. Force majeure here means any circumstance independent of the will of the parties as a result of which the fulfilment of the agreement is no longer possible or can no longer be expected.
19.3. Circumstances as referred to in the previous paragraph in any case include: strike, exclusion, fire, machine breakdown and other operating disruptions or interruptions, either in the seller’s own company or in those of the seller’s suppliers, transport failures, war, blockade, riot, epidemics, flood, storm and devaluation, as well as sudden increase in import duties and excise duties and/or taxes, in which the country of the seller or another country from which the seller wanted to obtain the necessary material for the delivery is involved, as well as delayed or late delivery by vendors’ suppliers.
19.4. In case of force majeure, the seller will not owe a penalty or damage compensation due to exceeding delivery times, even if this is explicitly stipulated.
19.5. In case one of the circumstances referred to in the second and third paragraph of this article occurs, but lasts less than six months, the seller has the right to extend the delivery term by the duration of that circumstance.
20.1. Seller is only liable for damage resulting from intent or gross negligence of seller or his subordinates.
20.2. The seller’s liability for consequential damage is explicitly excluded.
20.3. Any liability of the seller is also limited to a maximum of the invoice amount relating to the relevant part of the order or delivery.
21.1. The buyer must immediately inform the seller as soon as important facts occur regarding his creditworthiness, such as, inter alia, attachment, suspension of payment, bankruptcy, transfer of control over and liquidation of the buyer’s business.
22.1. The buyer is obliged to indemnify and hold harmless the seller against all costs, damage and interest, which may occur as a direct or indirect consequence of a claim by third parties against seller in respect of damage for which its liability towards the buyer has been excluded in these conditions or has expired under these conditions.
23.1. All transactions of the seller and the resulting disputes are governed by Dutch law, with the exclusion of the Vienna Sales Convention.
24.1. All disputes arising between seller and buyer in respect of any agreement shall in the first instance be judged by the competent court in the district where the seller or the seller’s counsel is established, subject to the authority of the buyer within one month of the occurrence of the dispute to choose the competent court according to the law and subject to the authority of the seller to apply the normal rules of jurisdiction.
25.1. The text of these general terms and conditions has been filed with the Clerk of the District Court in Dordrecht and at the offices of the Kamer van Koophandel en Fabrieken Rivierenland in Tiel.
Solines BV Buizen & Staal
METAALUNIE TERMS AND CONDITIONS
General delivery and payment terms and conditions issued by the Koninklijke Metaalunie (Dutch organization for entrepreneurs in small and medium-sized enterprises in the metal industry)
referred to as METAALUNIE TERMS AND CONDITIONS formerly as SMECOMA CONDITIONS,
filed with the clerk of the District Court in Rotterdam on 1 January 2008.
Issued by the Koninklijke Metaalunie, Postbus 2600, 3430 GA Nieuwegein.
Article 1: Applicability
1.1. These conditions apply to all offers made by members of the Koninklijke Metaalunie and to all agreements they conclude and to all agreements that may be the result thereof.
1.2. The offeror/supplier is the Metaalunie member who uses these conditions. This party is referred to as the contractor. The counterparty is referred to as the client.
1.3. In case of conflict between the content of the agreement concluded between the client and the contractor and these general terms and conditions, the terms of the agreement shall prevail.
1.4. These conditions may only be used by members of the Koninklijke Metaalunie.
Article 2: Offers
2.1. All offers are made without obligation.
2.2. If the client provides the contractor with information, drawings, etc., the contractor may rely on the accuracy of this and shall base the offer on this.
2.3. The prices stated in the offer are based on delivery from the factory, ‘ex works’, in accordance with Incoterms 2000.
The prices do not include turnover tax and packaging.
2.4. If the offer is not accepted, the contractor has the right to charge the client for all the costs he has had to incur in order to make his offer.
Article 3: Intellectual property rights
3.1. Unless otherwise agreed in writing, the contractor retains the copyrights and all industrial property rights on the offers, designs, illustrations, drawings, (test) models, software, etc. supplied by him.
3.2. The rights to the information referred to in paragraph 1 shall remain the property of the contractor irrespective of whether costs are charged to the client for their production. This information may not be copied, used or shown to third parties without the prior express written permission of the contractor. The client owes the contractor a penalty of € 25,000 per violation of this provision. This penalty may be claimed in addition to compensation under the law.
3.3. The client must return the information supplied to him as referred to in paragraph 1 at the first request of the contractor within the period specified by the contractor. In the event of a violation of this provision, the client shall owe the contractor a penalty of € 1,000 per day. This penalty may be claimed in addition to compensation under the law.
Article 4: Advice, designs and materials
4.1. The client cannot derive any rights from advice and information obtained from the contractor if they do not relate directly to the order.
4.2. The client is responsible for the drawings, calculations, designs and drawings made by him or on his behalf and
for the functional suitability of materials prescribed by or on his behalf.
4.3. The client indemnifies the contractor against any claim by third parties with regard to the use of drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of the client.
4.4. The client may inspect (or have inspected) the materials that the contractor wishes to use before they are processed at the client’s own expense. If the contractor
suffers damages as a result, this damage is at the client’s expense.
Article 5: Delivery time
5.1. The delivery time and/or execution period are determined by the contractor approximately.
5.2. In fixing the delivery time and/or execution period, the contractor assumes that he can execute the order under the circumstances known to him at that time.
5.3. The delivery time and/or execution period starts when agreement has been reached on all technical details, all necessary data, final drawings etc. are in the possession of the contractor, the agreed payment or instalment has been received and the necessary conditions for execution of the order have been met.
5.4. a. If there are circumstances other than those known to the contractor when he established the delivery time and/or execution period, the contractor can extend the delivery time and/or execution period by the time needed to carry out the assignment under these circumstances
. If the work cannot be fit into
the contractor’s schedule, it will be done as soon as his schedule permits.
b. If there is extra work, the delivery time and/or execution period shall be extended by the time that is necessary to supply (or arrange for the supply of) the materials and parts for this purpose and to perform the extra work. If the extra work cannot be fitted into the schedule of the contractor, it shall be completed as soon as his schedule permits.
c. If there is a suspension of obligations by the contractor, the delivery time and/or execution period will be extended by the duration of the suspension. If continuation of the work cannot be fitted into the schedule of the contractor, the work shall be completed as soon as his schedule permits.
d. If there is unworkable weather, the delivery time and/or execution period will be extended by the resulting delay.
5.5. If the agreed delivery time and/or execution period is exceeded, this shall not under any circumstances confer entitlement to damage compensation unless this has been agreed in writing.
Article 6: Transfer of risk
6.1. Delivery takes place from the factory, ‘ex works’, in accordance with Incoterms 2000; the risk for the goods transfers at the moment that the contractor makes them available to the client.
6.2. Irrespective of the provisions of the previous paragraph, the client and the contractor may agree that the contractor shall arrange for the carriage. In that event, the client bears the risk of storage, loading, transport and unloading. The client may insure himself against these risks.
6.3. If a purchase involves an exchange and the client continues to use the goods to be traded in pending delivery of the new goods, the risk in relation to the goods to be traded in shall continue to be borne by the buyer until the moment at which he transfers them to the possession of the seller.
Article 7: Price changes
7.1. An increase in cost-determining factors arising after the conclusion of the agreement may be passed on by the contractor to the client if the fulfilment of the agreement has not yet been completed at the time of the increase.
7.2. The client is obliged to pay the price increase as referred to in paragraph 1 simultaneously with payment of the principal sum or the next agreed payment instalment.
7.3. If goods are supplied by the client and the contractor is prepared to use them, the contractor may then charge a maximum of 20% of the market price of the delivered goods.
Article 8: Impossibility of performance
8.1. The contractor shall be entitled to suspend performance of his obligations if he is temporarily prevented from performing them by circumstances that could not be foreseen at the time of the conclusion of the agreement and that are beyond his control.
8.2. Circumstances that could not be foreseen by the contractor and that are beyond his control are deemed to include failure of his suppliers and/or subcontractors to fulfil their obligations or to do so in good time, weather conditions, earthquakes, fire, loss or theft of tools, loss of processed materials, road blocks, strikes or work stoppages and import or trade limitations.
8.3. Contractor is no longer authorized to suspend if the temporary inability to fulfil has lasted more than six
months. The agreement can only be dissolved after that period has elapsed and solely for that part of the obligations that have not been met. In that case, the parties shall not be entitled to compensation for damage suffered or yet to be suffered as a result of the termination.
Article 9: Scope of the work
9.1. The client must ensure that all permits, exemptions and other decisions that are necessary in order to perform the work are obtained in good time.
9.2. The price of the work does not include:
a. the costs of groundwork, pile driving, chopping, breaking, foundation work, masonry, carpentry, plastering, painting, wallpapering, repair or other construction work;
b. the costs of gas, water or electricity connections and other infrastructure facilities;
c. the costs of preventing or mitigating damage to goods present at or near the work;
d. the costs of removing materials, building materials or refuse;
e. travel and accommodation expenses.
Article 10: Changes to the work
10.1. Changes in the work result in any case in extra or less work if:
a. there is a change in the design, the specifications or the contract documents;
b. the information provided by the client does not correspond with the reality;
c. the estimated quantities are deviated from by more than 10%.
10.2. Extra work shall be charged on the basis of the value of the price determinants applicable at the time when the extra work is done.
Reduced work shall be settled on the basis of the value of the price determinants applicable at the time when the agreement was concluded.
10.3. If the balance of the reduced work exceeds that of the extra work, the contractor may charge the client in the final invoice 10% of the difference in the balances. This provision does not apply for reduced work that is the result of a request from the contractor.
Article 11: Execution of the work
11.1. The client shall ensure that the contractor can perform his work without interruption and at the agreed time and that in the execution of the work he has access to the requisite facilities such as:
– gas, water and electricity;
– lockable, dry storage space;
– provisions prescribed under the Working Conditions Act and regulations.
11.2. Client is liable for all damage, for
example as a result of loss, theft, burning or damage, to goods of the contractor, of the client and/or of third parties, such as tools and materials intended for the work, which are located at the place where the work is performed or in another agreed place.
11.3. If the client fails to discharge his obligations as described in the previous paragraphs and the work is delayed as a result, the work shall be done as soon as the client meets his obligations and the contractor’s schedule permits this. The client is liable for all damages that the contractor suffers as a result of the delay.
Article 12: Completion of the work
12.1. The work shall be deemed to have been completed when:
a. the client has approved the work;
b. the work is put into use by the client. If the client puts a part of the work into use, that part will be deemed to have been completed;
c. the contractor gives written notice to the client that the work has been completed and the client does not make notification in writing within 14 days of the notice of whether or not the work has been approved;
d. the client does not approve the work on account of minor defects or missing parts which can be repaired or supplied within 30 days and which do not prevent the use of the work.
12.2. If the client does not approve the work, he shall be obliged to give written notice of this to the contractor specifying the reasons.
12.3. If the client does not approve the work, he shall give the contractor the opportunity to complete the work. The provisions of this article shall then apply once again.
12.4. The client indemnifies the contractor against claims by third parties for damage to not-yet delivered parts of the work caused by use of parts of the work that have already been delivered.
Article 13: Liability
13.1. The contractor is liable for damage which the client suffers and which is the direct and sole result of a failure attributable to the contractor.
However, only damage for which the contractor is insured or for which he reasonably should have been insured will be eligible for compensation.
13.2. If at the time of entering into the agreement the contractor cannot, or cannot under reasonable conditions, take out an insurance as referred to in paragraph 1 or subsequently extend it under reasonable conditions, the compensation of the damage is limited to the amount that is the contractor has charged for this agreement (excluding VAT).
13.3. The following are not eligible for compensation:
a. commercial loss including, for example, stagnation damage and lost profit. The client should insure himself against this damage if desired;
b. collateral damage. Collateral damage means damage to goods which are being worked on or to goods which are in the vicinity of the place where the work is being done. The client should insure himself against this damage if desired;
c. damage caused by intent or deliberate recklessness of auxiliary persons or non-supervisory subordinates of the contractor.
13.4. The contractor is not liable for damage to material supplied by or on behalf of the client as a result of improper processing. At the request of the client, the contractor will carry out the processing again, with new material supplied by the client at the client’s expense.
13.5. The client indemnifies the contractor against all claims of third parties on account of product liability due to a defect in a product that has been supplied by the client to a third party and consisted wholly or partly of products and/or materials supplied by the contractor.
Article 14: Warranty
14.1. The contractor warrants the proper execution of the agreed performance for a period of six months after delivery or completion.
14.2. If the agreed performance consists of performing contracted work, the contractor warrants the soundness of the delivered construction and the materials used in the construction for the period referred to in paragraph 1, provided that he was free to choose such materials. If it appears that the delivered construction and/or the material used is not sound, the contractor will repair or replace it. The parts that the contractor is to repair or replace must be sent to the contractor free of charge. The dismantling and assembly of these parts and any travel and accommodation expenses incurred shall be borne by the client.
14.3. If the agreed performance (partly) consists of the processing of material provided by the client, the contractor guarantees the soundness of the processing done for the period referred to in paragraph 1. If it transpires that processing has not been done in a sound manner, the contractor shall choose whether:
– to perform the processing again. In that case, the client must supply new material at his own expense;
– to repair the defect. In that case, the client must return the material free of charge to the contractor;
– to credit the client for a proportionate part of the invoice.
14.4. If the agreed performance consists in the delivery of goods, the contractor shall warrant the soundness of the delivered goods during the period referred to in paragraph 1. If it transpires that the delivery has not been sound, the goods must be returned free of charge to the contractor. After that, the contractor will make the choice whether he will:
– repair the goods;
– replace the goods;
– to credit the client for a proportionate part of the invoice.
14.5. If the agreed performance consists in part or in whole of the installation and/or assembly of delivered goods, the contractor warrants the soundness of the installation and/or assembly for the period referred to in paragraph 1. If the fitting and/or assembly prove to be defective, the contractor will repair the fault. If the fitting and/or assembly prove to be defective, the contractor will repair the fault.
14.6. For those parts for which the client and contractor have explicitly agreed this in writing, the manufacturer’s guarantee applies. If the client has had the opportunity to take cognizance of the content of the factory warranty, this shall take the place of the warranty under this article.
14.7. The client must in all cases offer the contractor the opportunity to repair any defect and/or to carry out the processing anew.
14.8. The client may invoke the warranty only after he has complied with all his obligations to the contractor.
14.9. a. No guarantee is given when defects are the result of:
– normal wear and tear;
– injudicious use;
– not or incorrectly performed maintenance;
– installation, assembly, modification or repair by the client or by third parties.
b. No guarantee is given on goods delivered that were not new at the time of delivery or on goods that are prescribed by the client or supplied by or on behalf of the client;
c. No guarantee is given on inspections of and/or repairs of goods of the client.
Article 15: Claims
The client may no longer invoke an defect in the performance if he does not lodge a written claim with the contractor within 14 days of the date on which he discovers the defect or could reasonably be expected to discover it.
Article 16: Failure to take delivery
If goods have not been collected by the time the delivery period expires, they shall continue to be held available for the client.
Items that have not been collected are stored at the expense and risk of the client. The contractor may always exercise the power referred to in Article 6:90 of the Dutch Civil Code.
Article 17: Payment
17.1. Payment shall be made at the place of business of the contractor or by remittance to an account designated by the contractor.
17.2. Unless otherwise agreed, payment is made as follows:
a. in cash for counter sales;
b. with instalment payment:
– 40% of the total price upon order;
– 50% of the total price after delivery of the material or if the delivery of material is not included in the assignment, then after the start of the work;
– 10% of the total price upon completion;
c. in all other instances, within thirty days after the date on the invoice.
17.3. Regardless of the agreed terms of payment, the client shall be obliged, at the request of the contractor, to provide such security for the payment as the contractor deems sufficient for the payment. If the client fails to do so within the specified period, he shall be deemed to be immediately in default. The contractor shall in that case have the right to dissolve the agreement and recover his damages from the client.
17.4. The right of the client to settle its claims against the contractor is excluded, unless there is bankruptcy of the contractor or judicial debt restructuring applies to the contractor.
17.5. The full claim for payment is immediately due and payable if:
a. a payment due date has been exceeded;
b. the client has been declared bankrupt or has applied for a suspension of payments;
c. seizure of goods or claims is imposed on the client;
d. client (company) is dissolved or liquidated;
e. client (natural person) makes the request to be admitted to judicial debt restructuring, is placed under guardianship or dies.
17.6. If payment has not taken place within the agreed payment term, the client is immediately
owes interest to the contractor. That interest amounts to 12% per year, but is equal to the statutory interest if that is higher. For calculating the interest, part of a month shall be treated as a full month.
17.7. If payment has not been made within the agreed period for payment, the client shall owe the contractor all extrajudicial costs of recovery, subject to a minimum of € 75.00. The costs are calculated in accordance with the following table:
over the first € 3,000.00: 15%
over the excess up to € 6,000.00: 10%
over the excess up to € 15,000.00: 8%
over the excess up to € 60,000.00: 5%
over the excess from € 60,000.00: 3%
If the extrajudicial costs actually incurred are higher than those in the above calculation, the costs actually incurred shall be owed.
17.8. If the contractor is held to be in the right in legal proceedings, all costs that he has incurred in connection with the proceedings shall be borne by the client.
Article 18: Retention of title and right of pledge
18.1. After delivery, the contractor remains the owner of the delivered goods as long as the client:
a. falls short or will fall short in the fulfilment of his obligations under this agreement or other similar agreements;
b. fails or shall fail to pay for work done or to be done in the future under such agreements;
c. has failed to settle claims arising from non-fulfilment of the aforesaid agreements, e.g. for damages, penalties, interest and costs.
18.2. As long as there is a retention of title on delivered goods, the client may not encumber them outside his normal business operations.
18.3. After the contractor has invoked his retention of title, he may take back the delivered goods. The client must allow the contractor to enter the place where those goods are located.
18.4. If the contractor cannot invoke his retention of title because the delivered goods have been mixed, deformed or changed, the client is obliged to pledge the newly formed goods to the contractor.
Article 19: Termination
If the client wishes to dissolve the agreement in circumstances where the contractor is not in default and the contractor agrees to this, the agreement shall be terminated by mutual consent. The contractor shall in that case be entitled to compensation of all pecuniary damage, such as any loss suffered, loss of profit and costs incurred.
Article 20: Applicable law and competent court
20.1. Dutch law is applicable.
20.2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) is not applicable, nor is any other international regulation where the exclusion of which is permissible.
20.3. Only the civil court in the Netherlands that has jurisdiction in the place of establishment of the contractor may take cognizance of disputes, unless this would be contrary to mandatory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction.
20.4. The parties may agree to a different form of dispute resolution such as arbitration or mediation.