Article 1 - Definitions
In these General Terms and Conditions (hereinafter: "Conditions") the following terms will have the following meaning:
- Seller: Rema Holland B.V. and/or a company affiliated to it and/or each natural person or legal person that acts on behalf of Rema Holland B.V.
- Purchaser: the legal person, its representative(s), legal successor(s), heir(s) or attorney(s) in fact with whom Seller has entered into or possibly will enter into an agreement.
- Agreement: any agreement between Seller and Purchaser related to sale, purchase, commission and any related agreements.
Article 2 - Applicability
- The Conditions apply to every request, order, purchase order, order confirmation, quotation and offer of Seller and to any Agreement, with the exclusion of any other conditions of Seller, unless expressly agreed otherwise.
- The applicability of Purchaser's General Terms and Conditions is expressly rejected.
- Deviations from or additions to the Conditions are only valid if these have been laid down in writing and if Purchaser and Seller have signed them.
- Deviations from or additions to the Conditions have to be agreed with Seller again for every Agreement in the manner as described in paragraph 3 of this article.
- The nullity or nullification of a provision in the Conditions does not affect the validity of the other provisions in the Conditions. The provision will be replaced by a valid provision that does not qualify to be set aside and which corresponds with the intention and the economic effect of the provision in the Conditions the most.
Article 3 – Offer and acceptance
- Any offer of Seller, which in this context includes but is not limited to price lists and brochures, is entirely non-binding and is subject to availability.
- Price lists, brochures and other information provided by Seller in a quotation or offer is described in the most accurate manner possible, but shall not bind Seller.
- Seller has the right to immediately withdraw any offer it has made, also after Purchaser has accepted it.
- Seller cannot be held to its quotation or offer if Purchaser understands or reasonably should have understood that the quotation or offer, or part thereof, contains a manifest error or slip of the pen.
- If Purchaser's acceptance deviates from Seller's offer in minor or major respects, then Seller is not bound by it.
- The Agreement shall not be concluded until after Seller has sent Purchaser a written order confirmation, or until Seller has made a factual delivery.
Article 4 – Execution of the Agreement
- Purchaser will provide Seller with all information, in a timely manner, that is necessary in order to execute the Agreement.
- If Purchaser has not provided Seller with information in a timely manner that is necessary to execute the Agreement, Seller has the right to suspend its execution of the Agreement until such time as Purchaser still provides the information to Seller.
- Seller's damage and costs arising from any act of Purchaser in violation of paragraph 1 of this article is for Purchaser's account.
- Seller is not liable for any damage of whatever nature that is the consequence of any incorrect and/or incomplete information provided by Purchaser.
Article 5 – Prices
- The prices mentioned in a quotation, order confirmation or offer of Seller are exclusive of VAT, excise, customs duties and other government-imposed levies, any costs possibly incurred in the context of the Agreement, including travel expenses, postage, insurance costs and administrative costs, unless agreed otherwise.
- Seller has the right to increase agreed prices, even if Purchaser and Seller have agreed on a fixed selling price, without Purchaser being entitled to terminate the Agreement for that reason.
- Seller has the right to pass on a cost increase to Purchaser if the cost increase results from a power or obligation of Seller pursuant to the law or to regulations, or if between the moment an offer is made or the Agreement is formed and the moment the Agreement is executed there have been such changes (in price) such as, but not exclusively related to, exchange rates, wages, raw materials, semi-manufactures and packaging materials, or in case of another unforeseen circumstance leading to an increase in cost.
Article 6 - Delivery
- Delivery by Seller is made Ex Works from the Seller's loading place. The term Ex Works refers to delivery in conformity with Incoterms 2010.
- If it has been agreed that Seller will arrange transport, then delivery is made FCA from the Seller's loading place. The term FCA refers to delivery in conformity with Incoterms 2010. The formation and execution of the carriage contract(s) to be concluded by Seller are therefore for Purchaser's account and risk.
- Purchaser is obliged to take delivery of the goods at the moment they are delivered by Seller, or at least at the moment Seller provides the goods to Purchaser.
- Purchaser is in default without notice of default if it does not take delivery of the goods, or part of the goods, or does not do so in good time. All damage and costs incurred as a consequence of not taking delivery of, or untimely taking delivery of (part of) the goods by Purchaser are for Purchaser's account.
- If Purchaser does not take delivery of the goods, or part of the goods, or does not do so in good time, or fails to provide the information or instructions necessary for the performance of the Agreement, Seller has the right to transport those goods, or have them transported, and to store them with Seller and/or with a third party at Purchaser's account and risk.
- If Seller has stated a delivery term, this term only serves as an indication. A stated delivery term is therefore never a strict deadline.
- Exceeding of the delivery term stated by Seller does not entitle Purchaser to terminate the Agreement.
- Seller is not liable for the consequences of exceeding of the stated delivery term.
Article 7 – Retention of Title
- All goods delivered by Seller to Purchaser will remain Seller's property until Purchaser has paid all amounts due by Purchaser to Seller by virtue of all Agreements concluded by Purchaser and Seller, including any interest and costs.
- Purchaser may not pledge the goods delivered subject to retention of title or encumber them in any other manner.
- If any third parties levy an attachment on the goods delivered by Seller to Purchaser subject to retention of title, or wish to establish or enforce rights thereon, Purchaser is obliged to inform Seller hereof immediately.
- Purchaser is obliged to insure the goods delivered subject to retention of title and to keep the goods insured against theft, fire, explosion damage and water damage. Purchaser is obliged upon Seller's first request to submit a copy of the insurance policy or insurance policies and a proof of payment of the premium to Seller. Purchaser is obliged to pledge to Seller upon the latter's first request all claims on the insurer(s) regarding the goods subject to retention of title delivered by Seller as additional security for the payment of all Seller has to claim from Purchaser, pursuant to article 3:239 DCC.
- Purchaser may not sell and/or use the goods delivered subject to retention of title as a means of payment.
- If Seller wishes to exercise its property rights described in this article, Purchaser hereby gives unconditional permission to Purchaser and third parties designated by Purchaser to enter all premises at which Seller's properties are located and to reclaim and take these goods. Purchaser must fully cooperate.
Article 8 - Payment
- Purchaser is obliged on Seller's first request to provide security for the amount due by Purchaser to Seller based on the Agreement. In case Purchaser fails to comply with a request for security, or fails to do so in good time, Seller is entitled to suspend its obligations without being obliged to pay any damages and/or costs arising from it to Purchaser.
- Purchaser must pay all damages and costs of Seller as a result of the actions or failures of Purchaser in violation with paragraph 1 of this article.
- Unless agreed otherwise, Purchaser must pay in cash upon delivery of the goods.
- If Seller has requested a non-cash payment from Purchaser, payment must take place within the term set by Seller for this purpose. If no payment term has been set, payment must take place no later than 30 days after the invoice date on a bank account designated by Seller.
- All payments by Purchaser will first be applied towards the accrued interest, next towards the collection costs, or costs, next towards the Purchaser's oldest outstanding debt to Seller, also if Purchaser states that the payment relates to a different debt.
- If payment has not occurred within the applicable payment term, Purchaser is hereby in default without notice of default and obliged to pay the statutory commercial interest plus an interest of 1% per month on the outstanding amount as from the date on which the payment term expires until the day of payment in full, also if Seller is granted postponement of payment. In addition, Purchaser incurs an immediately payable penalty of 15% of the unpaid part of the amount, subject to a minimum of € 150.00.
- All costs incurred by Seller in order to obtain payment, including but not limited to judicial and extrajudicial costs will be borne by Purchaser.
- Purchaser is never allowed to offset any receivables it has, or claims to have, vis-à-vis Seller, against claims of Seller on Purchaser. Nor is Purchaser allowed to suspend any payments by virtue of receivables Purchaser has or claims to have against Seller.
Article 9 – Complaints
- Purchaser is obliged to verify upon delivery whether the goods are in compliance with the Agreement.
- Any complaints of Purchaser in respect of goods delivered by Seller must be communicated to Seller in writing within 24 hours after delivery, on pain of forfeiture of any claim for remedy, replacement and/or compensation of damage. Complaints must contain the most detailed description possible of the defect, allowing Seller to respond to the complaints. Purchaser must allow Seller to investigate the defect established by Purchaser, or to have it investigated.
- If Seller deems Purchaser's complaint well-founded, Seller is only obliged to repair or replace the defective (parts of the) goods at no charge, without Purchaser being able to claim any compensation of damage. All (parts of) goods replaced by Seller shall become Seller's property.
- Having a complaint does not release Purchaser of its obligations under the Agreement, including but not limited to its obligation to pay. Purchaser is not authorised to (partially) suspend its obligations and remains obliged to purchase and pay for any goods already delivered and ordered.
Article 10 - Used Goods
- Used goods are goods that have served as demonstration or show room model or have otherwise been used.
- Seller cannot be held in any way liable for any damage due to or as a consequence of the use of used goods, nor for any defects of used goods.
Article 11 - Cancellation
- If Purchaser cancels the Agreement, Purchaser owes Seller compensation of 20% of the invoice amount, without prejudice to Seller's right to complete compensation of its damage, including but not limited to loss of profit, which loss of profit is set at a minimum of 15% of the invoice amount.
- Seller will send Purchaser an invoice for the compensation due and payable by Purchaser pursuant to paragraph 1 of this article. Purchaser must pay this invoice within fourteen days after the invoice date.
Article 12 - Force Majeure
- Seller is not obliged to fulfil any obligation by virtue of the Agreement if it is prevented from doing so as a consequence of a foreseen or unforeseen circumstance beyond its control and/or a circumstance of which it could not in all reasonableness prevent the consequences, including work strikes and interruptions in Seller's business activities, as well as a circumstance that is not for its account either by law or by virtue of any legal act, nor by virtue of generally accepted opinions.
- Seller has the right during the period that the force majeure continues to suspend all its obligations under the Agreement.
- If at the time the force majeure commences Seller has already partially fulfilled, or can only partially fulfil, its obligations under the agreement, Seller has the right to send Purchaser a separate invoice for the part already fulfilled and/or the part that can be fulfilled during the period of force majeure, respectively. Purchaser is obliged to pay this invoice of Seller as if there were a separate Agreement.
Article 13 – Termination
- Seller is free to wholly or partially terminate the Agreement without prior notice of default, or with immediate effect, or to suspend (further) execution of the Agreement, without being obliged to compensate any damage if:
- Purchaser fails to fulfil any obligation arising from the Agreement and/or the Conditions, or fails to fulfil any obligation in a proper, timely or other manner;
- Seller after the conclusion of the Agreement takes cognisance of facts and/or circumstances based on which Seller has valid grounds to fear that Purchaser will not comply or not properly comply with its obligation and/or not comply with its obligations within the agreed or stated term;
- Purchaser loses the free disposition of its assets;
- Purchaser loses its legal personality, is dissolved, is factually liquidated or dies;
- Purchaser is in a state of bankruptcy or is granted a moratorium of payments or if preparations have been made for this purpose;
- Attachments are levied on assets, this attachment threatens the continuity of Purchaser's company and/or threatens the valid fulfilment of the Agreement by Purchaser and this attachment is not lifted within thirty days.
- If Seller terminates or suspends the Agreement pursuant to paragraph 1 of this article, Purchaser is obliged to compensate all damage suffered and/or to be suffered by Seller as a consequence, including but not limited to loss of profit, losses, product damage, interest and costs, transport costs, commission, judicial and extrajudicial costs and furthermore all costs directly or indirectly related to the Agreement.
- If a situation as mentioned in paragraph 1 of this article arises, all claims Seller might have against Purchaser will become immediately due and payable.
Article 14 - Indemnification
- Purchaser indemnifies Seller for all third-party claims which are the direct or indirect result of any obligation of Purchaser arising from or relating to the Agreement that was not complied with, not properly complied with or not complied with in a timely manner.
Article 15 – Insurance
- Purchaser undertakes to conclude and maintain an insurance that provides coverage against liability by virtue of the Agreement.
- Purchaser is obliged upon Seller's first request to submit a copy of the insurance policy as mentioned in paragraph 1 of this article and to submit a proof of payment of the premium upon first request.
Article 16 Exclusion of liability
- Seller is not liable for any damage suffered by Purchaser and/or a third party as a consequence of the use of any goods delivered by Seller. Purchaser will indemnify Seller in that respect.
- If it is established in a judgment that has obtained the force of res judicata that in spite of the contents of paragraph 1 of this article Seller is liable for the damage mentioned in paragraph 1 of this article, that liability is at all times limited to the amount to be distributed by Seller's insurer(s) after deduction of the policy excess.
Article 17 – Intellectual property right
- All intellectual property rights, including in any case the copyrights, trademark rights, patent rights, trade name rights, (unregistered) design rights and knowhow which are established on or which arise from the products sold and/or services provided to Purchaser shall at all time remain vested in Seller and shall not pass to Purchaser due to the Agreement with Seller, not even when the goods or services are specifically designed, developed or assembled for Purchaser, unless expressly agreed otherwise in writing by Purchaser and Seller.
- The delivery of a product and/or the provision of a service by Seller cannot be construed as an explicit or implicit license for use, disclosure, multiplication or release to third parties of the intellectual property rights mentioned in the previous paragraph, unless Seller has granted its express written permission for this.
- Purchaser will immediately warn Seller if third parties infringe or threaten to infringe Seller's intellectual property rights mentioned in paragraph 1 of this article, or if third parties are of the opinion that the goods and/or services of Seller infringe their own intellectual property rights. In the latter case, Seller will only be obliged, at its own discretion, to replace or modify the infringing goods, or to terminate or cancel the Agreement with Purchaser without being obliged to pay any further compensation.
- Purchaser will indemnify Seller from any claim due to infringement of any intellectual property right of third parties and in such a case Purchaser will completely compensate Seller and indemnify it for the consequences of such an alleged infringement.
- If Seller establishes, subject to all of the foregoing, that Purchaser used any of Seller's intellectual property right in an unlawful manner, Seller is entitled to cancel all current Agreements with Purchaser without owing Purchaser any compensation in this context. Purchaser and Seller agree on a penalty that may not be moderated of € 20,000 per violation of this article 17, without prejudice to Seller's right to claim complete compensation from Purchaser for all direct and indirect damage insofar as exceeding the penalty.
Article 18 – Applicable law and jurisdiction
- The Agreement is governed exclusively by the law of the Netherlands. Applicability of the Vienna Sales Convention is explicitly excluded.
- All disputes arising from or in relation to the Agreement are subjected to arbitration in accordance with the arbitration regulations of the Netherlands Arbitration Institute.
Article 19 - Other
- The Conditions are available for inspection at the Chamber of Commerce in Woerden.
- In case of contradiction between the Dutch and English text of the Conditions, the Dutch text is guiding.