ABK Kunststoffen General conditions and terms of delivery
as deposited to Chambers of commerce in Tiel (NLD)
Article 1. General
1. The present Terms of Delivery apply to all our offers, all our agreements and the execution of our agreements, unless seller agreed on nonconformities in writing. Our terms apply exclusively and always precede opposite party’s terms, even in cases where other precedence was included.
2. In these Terms, we define:
a) Any good: goods, material or services in the broadest sense of the word.
b) The client/opposite party: the natural person or the legal entity with whom delivery is agreed on.
c) The seller: ABK Kunststoffen BV in Dodewaard(NLD).
d) The offer: seller’s proposal, in which he declares being willing to deliver any good or service in a certain case or under certain circumstances.
e) The order: the instruction to deliver any good or to perform any service.
f) The terms: ABK Kunststoffen BV’s Terms of Delivery.
3. Even in case of void-declaration of any provision, the other provisions remain in force. The void declared provision will then be replaced by a legitimate provision that respects the void provision as much as possible.
Article 2. Offers
1. All offers are valid for 30 days, unless specified otherwise in the offer.
2. Budgets, plans and/or other documents enclosed to our offers, remain our intellectual property at all times and should be sent back to seller on first request, freight paid. Without seller’s written consent, these documents may not be duplicated nor be given for inspection to any third party.
3. The agreement is effective as soon as the acceptance of the offer has reached the seller, except in cases where modifications or reservations to the offer have been made. Then the agreement is effective only if the seller’s written agreement on the deviations has been sent to the client.
Article 3. Agreement & changes
1. Subject following provisions, an agreement with us is realized only after written acceptation or homologation, where the date of homologation is providing. The confirmation of order is expected to describe the agreement correct and complete.
2. Every agreement is established on postponing condition that opposite party – to our exclusive judgment – is solvent enough to meet it’s financial liabilities. We’re authorized to require proof that client can meet all liabilities and other obligations before (further) delivery.
3. In case client makes differing technical demands on goods that seller has to deliver, these demands have to be pointed out in writing to seller while striking a bargain.
4. The client is responsible for a prompt supply of all information and other documents needed for a correct execution of the agreement.
5. Modification of the agreement or these Terms are only valid when seller and client have agreed on in writing.
6. If modification leads to changes in costs, changes in purchase price have to be agreed on by both parties in writing.
7. If no agreement on changes in purchase price can be made, there’s a dispute that has to be treated respecting Article 15 of these terms.
8. If client wants to cancel an already made agreement, he has to pay a cancellation fee of 10% of the order price plus taxes – without prejudice to sellers right to full compensation, including foregone profits.
Article 4. Quality and determination
1. Seller commits himself to deliver goods or services to the client as described in the offer, respecting determined quantity and quality.
2. Seller commits himself to deliver goods to client that are manufactured using profound materials and that perform as described in offer.
3. Unless agreed on otherwise, seller does not guarantee that goods are suitable for client’s purpose, even if this purpose was announced to seller.
4. Seller does not hold any responsibility for deviations in product sizes, weights and colors.
5. Client accepts any slight or common deviation of color, design and execution in delivered goods or services, in order that these can not be grounds for deficiency reports and claims. Product replacement nor damage claims can be made because of discoloration of materials permitted by fair and traditional practices.
Article 5. Delivery
1. Ever since contracting purchase agreement, bought goods are at the risk of client. If transport of the goods to be delivered has been agreed on, this shall take place for the client’s account, unless free delivery has been agreed. Client shall always bear the risk during transport. The acceptance of goods from the supplier by the transport company shall be proof that these goods were in an externally proper state and condition, unless the contrary appears from the contract of carriage or the receipt.
2. Opposite party is obliged to inspect goods on damage and/or deficiency at delivery immediately or at the moment that seller declares that the goods are at client’s disposal.
3. In case of damage and/or deficiencies present at delivery, client has to point these out on the invoice or on the delivery bill. If no remarks are made, client’s approval is expected. Claims afterwards will not be considered.
4. The time of delivery is determined in the order and is always approximate. Time of delivery starts only after seller has received all client’s information.
Article 6. Risks
1. In case there’s reasonable doubt on seller’s side about client’s solvency, seller is authorized to postpone delivery of goods until client has assured payment. Client is then responsible for loss caused by this delay.
2. If seller postpones delivery on client’s request, any goods and vehicles where our goods have been assembled on are at client’s risk until the goods have been delivered. Property rights remain on seller’s side until delivery to client.
3. Unless agreed on otherwise, all risks are on opposite party, including transporter’s neglect or faults.
Article 7. Exchange & replacement
1. Exchanging of delivered goods is possible within ten days only, upon presentation of receipt, provided that goods neither have been used, modified and nor damaged.
2. When returning goods, client does not have the right to receive money back, he’ll receive a coupon.
3. Goods that are assembled on client’s good and reduced goods can not be returned.
4. Complaints will only be considered if they have reached us directly in writing within ten days after delivery or execution, with a detailed description of the deficiencies and with a picture.
5. Considered complaints and deviations will be related to average productions in our stock, not to single examples.
6. In case the complaint is justified according to the seller, seller only commits himself to deliver the good or service right. Only if and as far as the complaint is justified, the term of payment is postponed until seller thinks the complaint is solved.
7. If the delivered goods have been treated, modified or damaged in any way, or in case the goods have not been stored nor transported according to legal requirements and common accounting standards, or in case the goods are sold to a third party, the right to return is rejected.
Article 8. Property rights and retention of ownership
1. Delivered goods remain our property until all deliveries and activities, and goods to deliver and activities to be executed, including interest and costs, have been paid by opposite party. In case of suspension of payment, bankruptcy, withholding of payment, liquidation of opposite party or death - if opposite party is a natural person - we are authorized to cancel the order partially or fully and to take back the unpaid part of delivered goods, without formal notice or legal intervention. Cancellation and taking back leave our rights to claim for loss or damage unimpaired. In these cases, every outstanding debt with us shall be immediately and fully collectable.
2. Opposite party is obliged to treat delivered goods subjected to retention of ownership carefully, to store them while recognizable as seller’s property and to insure the goods on all common risks.
3. In case opposite party does not meet obligations/liabilities correctly, we are authorized to (make someone) pick up delivered goods subject to retention of ownership at client’s company or her holders at all times. Opposite party shall cooperate fully and admit seller access on first request.
4. The goods subjected to retention of property may not serve as a pledge or be given as a warranty to a third party. In case of reselling of not (fully) paid goods, opposite party is responsible for making the same retention of ownership provisions as in these terms.
5. To ensure correct payment, we retain ownership of the delivered goods and the vehicles on which our products are mounted until all goods are paid. The instruction, signed by opposite party and the following written acceptation from seller are a valid mutual agreed act as referred to in Dutch law.
Article 9. Rights of property of tools
All things specifically produced or bought for the manufacturing of goods for client, such as moldings, tools and other resources shall remain the property of the seller, even if they have been stated as separate items on the quotation, in the offer or on the invoice. These goods remain with us under all circumstances and seller supplier shall not be obliged to hand over the things, not even for inspection.
Article 10. Force Majeure
1. The seller is entitled to suspend the fulfillment of any obligations if any circumstances occur that could not be foreseen when the agreement was concluded and that are beyond the seller’s influence.
These include: war, risk of war, civil war, riot, fire, water damage, floods, strike, occupation of the company, lock-out, restrictions on import and export, government interference, machine defects, power loss, either in seller’s company or at one of seller’s suppliers and everything that may arise beyond the seller’s fault or risk both at its place of business and at the place of business of third parties from whom the seller has to obtain, partially or wholly, the necessary materials of raw materials as well as on storage and during transport, whether or not by its own employees and furthermore all other cases.
2. If any of these situations occur and seller judges circumstance is temporarily, seller is authorized to postpone the execution of the agreement until the unforeseen situation is solved.
3. If seller judges that the situation is permanent, then parties can come to terms about cancellation of the agreement and the consequences of cancellation.
4. Seller is authorized to claim payment of executed activities in the arrangement, before the suspending situation occurred.
5. In case a party thinks a suspending situation (will) occur, party is obliged to immediately contact the other party.
Article 11. Price & payment
1. Seller’s prices are with reserve. VAT, other taxes and transportation are not included. Moreover increases in price on behalf of third parties are excluded.
2. Client is obliged to pay purchase price within 30 days after invoice date, unless agreed on otherwise in writing. Client is not entitled to deduct any amount in case of countermeasures.
3. Primary, every payment by client is made to pay interest and optional costs of collection, then to pay the oldest invoices.
4. In case client does not meet liabilities in time, neither pays within a week after a letter of notice, seller is authorized to treat purchasing agreement as dissolved, without judicial intervention. In this case, client is responsible for seller’s damage, including loss of profit, transport fees and collection fees.
5. In case client does not meet liabilities to seller for what ever reason and seller decides to take measures, both juridical and non juridical costs are for account of client. The juridical costs also include all costs of legal aid and legal fees, which are above the amount of invoice(s). Non-juridical collection fees are at least 15% of the amount on the invoice, with a €115,- minimum plus aforementioned interest.
Article 12. Product liability
1. Seller rejects responsibility for business damage, in case damage caused by lacking products is not higher than €500 or a similar amount described as common rule of management because of product liability.
2. In case product liability as described in article 12.1 is over €500, seller can only be held responsible if the delivered good was meant to be for private use and also was used in private mainly by client.
3. In case requirements in article 12.2 are not met, seller hereby refuses any responsibility unless it is a matter of gross negligence or intention.
4. If the seller is able to indulge the identity of it’s supplier to the client, the latter will first address this predecessor.
Article 13: Intellectual property rights
1. In case there are intellectual property rights on moldings, drawings, trial models etc which have been made by or for us to prepare or to execute the agreement, the intellectual property rights belong to seller, without prejudice.
2. The opposite party guarantees seller that the use of supplied data etc. will not violate law nor third party’s property rights. Furthermore, in case of violation of this guarantee, opposite party safeguards seller fully against direct or indirect consequences of violation.
Article 14. Responsibility
1. Unflagging the provisions in article 11, the purchase agreement is dissolved without judicial intervention and without any formal notice at the moment client is demanding suspension of payment, is declared bankrupt, or loses disposal of (parts of) his assets because of sequestration, legal constraints, or for other reasons, unless the receiver recognizes the obligations and liabilities resulting from the purchase agreement as liabilities of estate.
2. Mutual claims become immediately collectable after deterioration. Client is responsible for any damage caused for seller, including loss of profit and freight costs.
3. Unflagging provisions in article 12, seller is not responsible for damage caused by nor resulting from deliveries done or to be done, activities done or to be done, or employees hired on behalf of client’s order.
4. Client is expected to safeguard seller and abovementioned persons (article 14.3) against claims of third parties, based on assumed responsibility of seller, that have been excluded from the relation of seller and client by these terms.
Article 15. Applicable law and competent court
1. All our offers, agreements and the execution are governed by Dutch law only.
2. Parties elect domicile in the residence or the place of business of seller.
In the event of any disputes on the interpretation of any of the provisions of these terms and conditions, or any of the provisions included in contracts to which these terms and conditions apply, the Dutch text shall be conclusive.