This translation is provided for information only. The Dutch version of these general terms and conditions is legally binding.
Our general terms and conditions apply to all quotations, agreements and deliveries of DG Rubber Profiles B.V.
DG Rubber Profiles B.V. · Loofklapper 16A, 8256 SL Biddinghuizen, the Netherlands · VAT: NL859799323B01 · Filed with the Chamber of Commerce (Kamer van Koophandel) Gooi-, Eem- en Flevoland under number 74179020.
Article 1 — Definitions
Seller: DG Rubber Profiles BV., the user of the general terms and conditions; Buyer: the seller’s counterparty, the customer, the client; Agreement: the agreement between seller and buyer.
Article 2 — General
2.1 The provisions of these general terms and conditions apply to every offer and agreement between seller and buyer to which the seller has declared these terms applicable, insofar as the parties have not expressly deviated from them in writing;
2.2 These general terms and conditions also apply to all agreements with the seller for the performance of which the seller uses the services of third parties;
2.3 The applicability of the buyer’s general terms and conditions is expressly excluded, unless the parties have agreed otherwise in writing. If the general terms and conditions of both parties apply side by side, then in the event of conflicting provisions the seller’s general terms and conditions shall prevail;
2.4 If one or more provisions of these general terms and conditions are void or are annulled, the remaining provisions of these general terms and conditions shall continue to apply. Seller and buyer shall agree on new provisions to replace the void or annulled provisions, taking into account the purpose and intent of the original provisions.
Article 3 — Offers / Quotations / Prices
3.1 All offers, in whatever form, are without obligation, unless a period for acceptance is stated in the offer;
3.2 Quotations made by the seller are without obligation, unless stated otherwise. The seller is bound by quotations only if their acceptance is confirmed by the buyer in writing within 14 days and on condition that the materials offered in the quotation are still in stock or available;
3.3 If a natural person enters into an agreement on behalf of or for the account of another natural person, they declare, by signing the contract, that they are authorised to do so. This person is jointly and severally liable, together with the other natural person, for all obligations arising from the agreement;
3.4 If the acceptance deviates from the offer contained in the quotation, the seller is not bound by it. The agreement is then not concluded in accordance with this deviating acceptance, unless the seller indicates otherwise;
3.5 A composite quotation does not oblige the seller to deliver part of the goods included in the offer or quotation at a corresponding part of the stated price;
3.6 Offers or quotations do not apply to repeat orders;
3.7 Delivery times in the seller’s quotations are indicative and, if exceeded, do not entitle the buyer to terminate the agreement or claim damages, unless expressly agreed otherwise;
3.8 Agreements to which the seller is a party are deemed concluded only after the seller has accepted an order from the buyer in writing, or upon actual delivery ex warehouse of the goods sold by the seller to the buyer;
3.9 The prices in offers/quotations apply to delivery ex warehouse, in euros, including loading costs, excluding VAT, government levies, shipping, freight and administration costs, unless expressly agreed otherwise;
3.10 The seller may pass on price increases of more than 10% if, between the time of offer/acceptance and delivery, price changes have occurred with regard to, for example, exchange rates, wages, raw materials, semi-finished products or packaging materials;
3.11 If the seller enters into agreements with the buyer more than once, these general terms and conditions shall always apply to all subsequent agreements, regardless of whether or not they have been explicitly declared applicable.
Article 4 — Delivery
4.1 Delivery takes place ex seller’s warehouse, unless the parties agree otherwise;
4.2 The buyer is obliged to take receipt of the goods at the moment the seller delivers them or has them delivered, or at the moment they are made available to the buyer under the agreement;
4.3 If the buyer refuses to take receipt or fails to provide information or instructions necessary for delivery, the seller is entitled to store the goods at the buyer’s expense and risk;
4.4 If delivery is cash on delivery, the seller will always charge the buyer the cash-on-delivery costs;
4.5 If the goods are delivered, the seller is entitled to charge any delivery costs. Carriage-paid delivery for orders from € 450.00 excl. VAT. For exports, transport costs are borne by the buyer;
4.6 The weight of the goods determines the amount of the freight costs, which are invoiced separately;
4.7 If the seller has stated a delivery period, it is indicative. A stated delivery time is therefore never a strict deadline. If a period is exceeded, the buyer must give the seller written notice of default;
4.8 If the seller requires information from the buyer for the performance of the agreement, the delivery time commences after the buyer has made this information available to the seller;
4.9 The seller is entitled to deliver the goods in instalments. The seller is entitled to invoice partial deliveries separately.
Article 5 — Inspection, complaints
5.1 The buyer is obliged to inspect (or have inspected) the goods delivered at the moment of delivery, but in any case within the shortest possible period. In doing so, the buyer must check whether the quality and quantity of the goods delivered correspond to what was agreed;
5.2 If a model has been shown to the buyer, it is presumed to have been shown merely as an indication, without the goods having to conform to it, unless it is expressly agreed that the goods will conform to it;
5.3 Any visible shortcomings must be reported to the seller in writing within 8 working days of delivery;
5.4 The buyer must give the seller the opportunity to investigate the complaint;
5.5 If a complaint is made in time in accordance with the previous paragraph, the buyer remains obliged to take receipt of and pay for the goods purchased. If the buyer wishes to return defective goods, this must be done with the seller’s prior written consent and in the manner indicated by the seller.
Article 6 — Payment
6.1 Payment for orders under € 100.00 must be made in cash on delivery; other payments within 30 days of the invoice date, in a manner to be specified by the seller, in euros. Payment for orders over € 5000.00 must be made as follows: 1/3 on order; 1/3 when the goods are ready for dispatch at the seller’s premises; 1/3 within 1 month after the 2nd instalment has been paid;
6.2 Objections to the amount of invoices do not suspend the payment obligation;
6.3 If the buyer fails to pay within the 30-day period, the buyer is in default by operation of law. The buyer then owes interest of 1% per month or part thereof, unless the statutory interest rate or statutory commercial interest rate is higher, in which case the highest rate applies. Interest on the amount due will be calculated from the moment the buyer is in default until the moment the full amount is paid;
6.4 In the event of liquidation, (application for) bankruptcy, admission of the buyer to the statutory debt rescheduling scheme under the Dutch Natural Persons Debt Rescheduling Act (Wet Schuldsanering Natuurlijke Personen), attachment or (provisional) suspension of payments of the buyer, the seller’s claims against the buyer become immediately due and payable;
6.5 Payments are first deducted from costs, then from accrued interest and finally from the principal sum and current interest.
6.6 The buyer’s right to set off its claims against the seller is excluded.
Article 7 — Collection costs
7.1 If the buyer is in default or fails to (timely) fulfil its obligations, all reasonable costs of obtaining payment out of court shall be borne by the buyer. Collection costs are calculated in accordance with the collection rates recommended by the Netherlands Bar Association (Nederlandse Orde van Advocaten) in collection cases;
7.2 If the user has incurred higher costs that were reasonably necessary, these are also eligible for reimbursement;
7.3 Any reasonable legal and enforcement costs incurred shall also be borne by the buyer.
Article 8 — Retention of title
8.1 All goods delivered to the buyer remain the property of the seller until the buyer has fulfilled all obligations under all agreements concluded with the seller;
8.2 The buyer is not authorised to pledge or otherwise encumber the goods subject to retention of title;
8.3 If third parties attach the goods delivered subject to retention of title, or wish to establish or assert rights over them, the buyer is obliged to inform the seller as soon as possible;
8.4 Goods delivered by the seller that are subject to retention of title under paragraph 1 of this article may only be resold in the normal course of business and may never be used as a means of payment;
8.5 In the event that the seller wishes to exercise the property rights referred to in this article, the buyer hereby gives the seller, or third parties designated by the seller, unconditional and irrevocable permission to enter all places where the seller’s property is located and to take back those goods.
Article 9 — Warranty
9.1 The goods delivered by the seller comply with the technical requirements and specifications set by Dutch legislation;
9.2 The warranty referred to in paragraph 1 of this article applies for a period of 6 months after delivery;
9.3 This warranty is limited to: – manufacturing defects and therefore does not cover damage resulting from wear and tear and improper or incompetent use; – deliveries to buyers in the Netherlands;
9.4 This warranty lapses: – if the goods delivered are resold, unless the parties have expressly agreed otherwise; – in the event of injudicious or improper use by the buyer or a third party, or after modifications, alterations or repairs to the goods delivered by the buyer or a third party;
9.5 As long as the buyer has not fulfilled its obligations under the agreements concluded between the parties, it cannot invoke the warranty.
Article 10 — Suspension and termination
10.1 The seller is entitled to suspend the performance of its obligations or to terminate the agreement if: – the buyer fails to fulfil its obligations under the agreement, or fails to do so on time or in full; – after the agreement has been concluded, circumstances come to the seller’s knowledge that give good reason to fear that the buyer will not fulfil its obligations, or will not do so on time or in full. If there is good reason to fear that the buyer will only partially or improperly perform, suspension is only permitted insofar as the shortcoming justifies it; – when concluding the agreement, the buyer was asked to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient. As soon as security has been provided, the right to suspend lapses, unless fulfilment has thereby been unreasonably delayed;
10.2 Furthermore, the seller is entitled to terminate the agreement (or have it terminated) if circumstances arise of such a nature that performance of the agreement is impossible or can no longer be required according to standards of reasonableness and fairness, or if other circumstances arise of such a nature that continuation of the agreement unchanged cannot reasonably be expected;
10.3 If the agreement is terminated, the seller’s claims against the buyer become immediately due and payable. If the seller suspends the performance of its obligations, it retains its rights under the law and the agreement;
10.4 The seller always reserves the right to claim damages.
Article 11 — Cancellation
11.1 If, after an agreement has been concluded with the seller, the buyer wishes to cancel it, 10% of the agreed order price including VAT will be charged to the buyer as cancellation costs, without prejudice to the right to full compensation, including loss of profit;
11.2 If, on cancellation, the buyer refuses to take receipt of goods already purchased by the seller, such as materials and raw materials, whether or not processed, the buyer is obliged to pay the seller all resulting costs.
Article 12 — Liability
12.1 If goods delivered by the seller are defective, the seller’s liability towards the buyer is limited to what is provided for in these terms under “Warranty”;
12.2 If the seller is liable for direct damage, that liability is limited to a maximum of the amount paid out by the seller’s insurer, or at least to a maximum of the invoice amount, or at least that part of the agreement to which the liability relates;
12.3 The seller is never liable for indirect damage, including consequential loss, loss of profit, missed savings and damage due to business interruption;
12.4 The limitations of liability for direct damage included in these terms do not apply if the damage is due to intent or gross negligence on the part of the seller or its subordinates.
Article 13 — Transfer of risk
13.1 The risk of loss of or damage to the products that are the subject of the agreement passes to the buyer at the moment these products are legally and/or actually delivered to the buyer and thereby come under the control of the buyer or a third party designated by the buyer;
13.2 If the seller arranges transport, this is entirely at the buyer’s risk.
Article 14 — Force majeure
14.1 The parties are not obliged to fulfil any obligation if they are prevented from doing so as a result of a circumstance that is not due to gross negligence or intent on the part of the party invoking it, and for which they are not responsible by law, legal act or generally accepted views;
14.2 In these general terms and conditions, force majeure means, in addition to what is understood by it in law and case law, all external causes, foreseen or unforeseen, over which the seller has no influence but which prevent the seller from fulfilling its obligations. Strikes at the seller’s company are included;
14.3 The seller is also entitled to invoke force majeure if the circumstance preventing (further) performance occurs after the seller should have fulfilled its obligation;
14.4 The parties may suspend the obligations under the agreement for as long as the force majeure continues. If this period lasts longer than two months, either party is entitled to terminate the agreement, without any obligation to compensate the other party for damage;
14.5 Insofar as, at the time force majeure occurs, the seller has already partially fulfilled or will be able to fulfil its obligations under the agreement, and the part fulfilled or to be fulfilled has independent value, the seller is entitled to invoice the part already fulfilled or to be fulfilled separately. The buyer is obliged to pay this invoice as if it were a separate agreement.
Article 15 — Special products
15.1 Unless expressly agreed otherwise, the seller is entitled to make special items produced for the buyer for third parties as well.
15.2 The buyer must inspect samples of special items within 14 days of dispatch. If the seller has not received a notice of rejection after 14 days, the samples are deemed approved.
15.3 Unless expressly agreed otherwise, all models, moulds, samples, forms, calculations and all other equipment and instructions relating to the manufacture of special items are and remain the property of the seller.
15.4 The costs of replacement, repairs and maintenance of the moulds are borne by the buyer.
15.5 Drawings, know-how and designs made available by the seller to the buyer may not be copied, shown to third parties or disclosed without written permission. They must be returned to the seller immediately after use. For each breach of this provision, the buyer forfeits to the seller an immediately payable penalty of € 50,000.00 per breach and € 5,000.00 for each day the breach continues.
15.6 The seller has the right to destroy moulds, regardless of whether they are owned by the seller or the buyer, if they have not been used for 2 years. The seller will notify the buyer of the intention to scrap them 3 months before the end of the 2-year period.
Article 16 — Disputes
The court in the seller’s place of business has exclusive jurisdiction over disputes. Nevertheless, the seller has the right to submit the dispute to the court that has jurisdiction by law.
Article 17 — Applicable law
Dutch law applies to every agreement between seller and buyer. The Vienna Sales Convention (CISG) is expressly excluded.
Article 18 — Filing
These terms and conditions have been filed in both Dutch and English with the Chamber of Commerce Gooi-, Eem- en Flevoland under number 74179020.
