GENERAL SALES AND DELIVERY
The following definitions are used in these General Conditions:
- Duijndam: user of these conditions;
- The other party: any natural or legal person that takes delivery of products from Duijndam or contacts Duijndam about doing so;
- Order: the order from the other party to Duijndam for delivery of products, in whatever form;
- Agreement: the agreement whereby Duijndam undertakes vis-à-vis the other party to deliver products;
- Products: any used (horticultural) machinery delivered or to be delivered by Duijndam to the other party by way of performance of an agreement.
- These conditions shall apply to all offers made by Duijndam to the other party, to all orders issued by the other party to Duijndam and to all agreements between Duijndam and the other party, unless otherwise agreed expressly and in writing.
- Departure from these conditions may be agreed in writing only.
- Any purchase or other conditions of the other party, under whatever name, are not applicable.
- If any provision in these conditions should be invalid or be invalidated, this does not affect the validity of the other provisions of these conditions. Invalid or invalidated provisions shall be transformed into valid provisions, with as far as possible the objective and the tenor of the original provisions being retained.
- All offers from Duijndam are without engagement unless expressly stated otherwise.
- An offer can be withdrawn by Duijndam and/or be replaced by a new offer.
- An agreement comes into being when Duijndam has accepted, in writing or otherwise,the order issued to it.
- Oral promises by and agreements with subordinates of Duijndam are not binding upon Duijndam unless and insofar as they are confirmed in writing by Duijndam.
- Agreements are entered into by Duijndam on the suspensive condition that the other party proves to be sufficiently creditworthy.
- Prior to the performance of the agreement Duijndam is entitled to require security from the other party.
E. SAMPLES AND MODELS
- If a sample, model or photo has been shown or issued by Duijndam to the other party, this sample, model or photo is deemed to have been issued only as an indication of a product to be delivered and the product to be delivered does not require to conform to it, unless otherwise agreed expressly and in writing.
- Prices are exclusive of value added tax and any other government taxes levied on the sale and delivery.
- Where the other party is located in a country outside the European Union, Duijndam shall charge the other party no value added tax, provided the other party returns the transport documents and the import and export documents to Duijndam within 30 days of delivery of a product. If the other party fails to do this, Duijndam shall be entitled to charge the other party value added tax after all.
- Duijndam is entitled, if the price is expressed in a currency other than the euro and in the event of an increase in the value of the euro in respect of such other currency, to increase the price proportionally.
- Transport costs incurred by Duijndam are not included in the price and are charged separately, unless otherwise agreed expressly and in writing.
G. DELIVERY PERIODS
- Delivery periods begin to run on the day that Duijndam has accepted, in writing or otherwise, an order issued to it.
- Delivery periods are suspended as long as the security required by Duijndam has not been provided by the other party.
- Delivery periods are approximate and may therefore never be regarded as essential deadlines, unless otherwise agreed expressly and in writing. Duijndam shall therefore never be in default unless it has been declared in writing to be in default by the other party, with a reasonable period being granted to it to comply with the agreement after all.
- Products are delivered from Duijndam's warehouses and/or stores, unless otherwise agreed in writing.
- The other party is obliged to take delivery of the products at the moment that Duijndam makes them available to him or at the moment that the products are delivered to him.
- If after being given notice of default the other party continues to fail to take delivery of products, they shall be stored for his account and risk.
- Products are delivered in the state in which they find themselves when the agreement comes into being.
- Duijndam does not guarantee that at the time of the delivery the products are without defects and/or shortcomings. The other party accepts expressly that the products may have defects and/or shortcomings.
- Duijndam does not guarantee that the products meet the (safety) regulations applicable to them. The other party accepts expressly that the products possibly do not meet (safety) regulations.
J. PASSING OF RISK
- Immediately after products have been delivered by Duijndam to the other party or have been made available by Duijndam to the other party, they are for account and risk of the other party.
- Complaints relating to the products shall be made in writing not later than 8 days after delivery, upon expiry of which deadline any claim in respect of Duijndam in this matter shall cease to have validity.
- Complaints relating to invoices shall be made in writing within 8 days of the other party having received the invoice.
- In the event of justified complaints Duijndam shall within a reasonable period arrange for repair or replacement, at Duijndams discretion. Costs of disassembly and assembly and travel and accommodation expenses of Duijndam personnel are for account of the other party.
- Legal actions relating to the products delivered by Duijndam shall be instituted not later than 1 year after delivery, on pain of ceasing to have validity.
- Complaints do not suspend the payment obligation of the other party.
- The liability of Duijndam and its subordinates for the products delivered by Duijndam is limited to the obligation described in clause K 3, unless there has been a case of intent or gross negligence on the part of Duijndam.
- Duijndam's liability for the products delivered by it is in any event limited to the direct damage suffered by the other party.
- Duijndam's liability for the products delivered by it shall not exceed the amount that Duijndam has charged or shall charge the other party regarding the delivered products in question.
- Duijndam shall never be liable for indirect damage of the other party, including consequential damage, lost profits, missed savings and damage arising from business stoppages.
- Any personal, extra-contractual liability of Duijndam personnel or of third parties brought in by Duijndam is expressly excluded.
- Duijndam is not liable for any damage arising from normal wear and tear, improper use or handling or incorrect maintenance. Duijndam is likewise not liable for any damage that occurs after modifications or repairs by or on behalf of the other party himself, nor for damage arising from failure to comply with regulations.
- The other party indemnifies Duijndam and its subordinates against all claims from third parties that are related directly or indirectly to the performance of the agreement.
- Payment by the other party shall be effected in cash in euros, unless otherwise agreed.
- The other party is not entitled to any discount, set-off or suspension.
- If payment is not effected as agreed, the other party shall be legally in default. The other party shall then owe Duijndam interest of 2.0% per month from the date of commencement of the default until the day of full settlement.
- All legal and non-legal (collection) expenses incurred by Duijndam are for account of the other party. The non-legal collection costs are set at 15% of the principle owed by the other party to Duijndam, with a minimum of 225 euro. Duijndam can claim reimbursement of its legal (collection) expenses actually incurred.
- Payments made by the other party shall first go towards settlement of the interest and expenses owed and then towards settlement of the invoices that have been outstanding for longest, even if the other party stipulates otherwise.
O. RESERVATION OF TITLE
- As long as Duijndam has outstanding claims against the other party for any amount on whatever account, Duijndam reserves the title of products delivered by it. The title shall pass to the other party only when all debts owed by the other party to Duijndam, including interest and expenses, have been settled in full.
- If the other party fails to pay any amount owed to Duijndam without delay, Duijndam shall be entitled to seize without delay those products regarding which Duijndam has reserved the title, wherever they may be. The costs of recovery shall be charged to the other party.
- The other party is not entitled to alienate or encumber the products regarding which Duijndam has reserved the title.
P. FORCE MAJEURE
- If as a result of force majeure Duijndam is unable to fulfil its obligations arising from the agreement or unable to do so on time, Duijndam is entitled to suspend its obligations and Duijndam is not obliged to reimburse the other party for any damage.
- Force majeure is defined as any circumstance outside Duijndam's power as a result of which fulfilment without shortcoming is not possible, is made economically impossible by reasonable standards or fulfilment cannot otherwise reasonably be expected of Duijndam.
- In any event force majeure shall include sickness of personnel, stoppage or delay by suppliers, delays arising during the transport or importation of the products to be delivered, restrictive government measures of whatever nature, fire, sabotage, (threat of) war, strike, sit-in strike and seizure.
- If Duijndam has yet to receive from a third party a product to be delivered to the other party, the inability to deliver the product (on time) by Duijndam as a consequence of the fact that Duijndam does not receive the product (on time) from the third party shall be regarded as force majeure.
- If Duijndam claims force majeure for a period exceeding two months, both Duijndam and the other party are authorised, without prejudice to that provided for in clause Q, to terminate the agreement in part or in full by written notice thereof to the other, without being obliged to provide reimbursement for damage.
- If the other party does not fulfil, does not fulfil on time or does not fulfil properly one or more of his obligations, is declared bankrupt, applies for (temporary) suspension of payment, liquidates his business or if any of his assets are seized, Duijndam is entitled to suspend the performance of the agreement or to terminate the agreement in part or in full, without giving prior notice of default, by a written statement, the above at its discretion and always without loss of any right accruing to it for reimbursement of expenses and damage.
- In the event of partial termination, the other party cannot claim reversal of work already performed by Duijndam and the other party is obliged to pay for the work already performed by Duijndam up until then.
- In the event of the agreement being terminated on the grounds that the other party has not fulfilled, has not fulfilled on time or has not fulfilled properly one or more of his obligations, the other party shall owe Duijndam an immediately claimable penalty of 20% of the purchase price, without prejudice to Duijndam's right to full compensation and reimbursement of interest and expenses as referred to in clause N.
R. APPLICABLE LAW
- All offers and agreements to which these conditions apply are governed exclusively by Dutch law.
- The Vienna Convention on the International Sale of Goods is not applicable and is expressly excluded.
Insofar as they do not fall within the competence of a cantonal court, all disputes between Duijndam and the other party shall in the first instance be settled exclusively by the District Court at The Hague.
These conditions were lodged with the Chamber of Commerce at Rotterdam, July 2001.