Termes & conditions
1. Applicability, definitions
1. These Terms and Conditions apply to any offer and to any contract of sale and purchase of Fivel B.V., established in Breda, hereinafter to be referred to as “the Supplier”.
2. The buyer shall be referred to as “the Buyer”.
3. “In writing” for the purposes of these General Terms and Condi-tions shall mean: by letter, e-mail, fax or any other mode of communication that is regarded as equivalent to writing in view of advances in technology and conventional practices.
4. The possible invalidity of (any part of) a provision contained in these General Terms and Conditions shall not affect the validity of the remaining provisions.
5. In the event of a discrepancy or conflict between these General Terms and Conditions and a translation hereof, the Dutch text shall prevail.
6. These General Terms and Conditions shall also apply to subsequent orders and part orders flowing from the agreement.
7. A lasting business relationship shall exist if the Supplier has already handed these General Terms and Conditions several times to the Buyer. If this is the case, the Supplier shall not be obliged to produce these General Terms and Conditions in order for them to apply to each new agreement.
2. Offers, proposals, prices
1. Each offer and each proposal by the Supplier is in force during the term referred to in the offer or proposal. An offer or proposal without a validity term is without engagement. The Supplier is entitled to withdraw an offer or a proposal if this offer or proposal is without engagement, within 14 days after receipt of the acceptance at the latest.
2. The prices stated in offers, proposals or price lists are exclusive of VAT and possible costs, such as transport costs, shipping costs, administrative costs, handling fees and expense claims of third parties engaged.
3. A composite offer or proposal does not oblige the Supplier to deliver part of the offered performance against a corresponding part of the price.
4. If the offer or proposal is based on information provided by the Buyer and this information appears to be incorrect or incomplete or should change at a later date, the Supplier shall have the right to adjust the prices and/or delivery terms stated.
5. The offer, the proposal and the prices do not automatically apply to repeat or partial orders.
6. Samples and models that are displayed and/or provided and specifications of colours, dimensions, weights and other descriptions in brochures, promotional material and/or on the Supplier’s website shall be as accurate as possible but shall only be intended as a guide. The Buyer may derive no rights from these. 7. The samples and models provided shall remain the property of the Supplier and must be returned to the Supplier on demand at the expense of the Buyer.
8. If (cost) price increasing circumstances occur at the expense of the Supplier between the date of concluding the agreement and the execution thereof, due to legislation and regulations, government measures, currency fluctuations or price changes of the required materials and/or raw materials, the Supplier shall have the right to increase the agreed prices and charge these to the Buyer.
3. Establishing agreements
1. The agreement is established after the Buyer has accepted the offer of the Supplier, also if this acceptance deviates on secondary issues from this offer. However, when the acceptance of the Buyer shall deviate in essential aspects, the agreement shall only be concluded if the Supplier has explicitly agreed with these deviations in writing.
2. The Supplier shall only be bound to:
a. an order without prior offer thereto;
b. oral agreements;
c. additions to or changes of the General Terms and Conditions or agreement; after written confirmation to the Buyer or as soon as the Supplier – without objection of the Buyer – has started the performance of the order or arrangements.
4. Engaging third parties
If required for the proper execution of the agreement according to the Supplier, it shall have the right to have specific deliveries carried out by third parties.
5. Obligations of the Buyer
1. The Buyer must ensure that it shall make all information required for the execution of the agreement available to the Supplier in time and in the manner required by it, and that the information is correct and complete.
2. The Buyer may only sell on items delivered by the Supplier in the original packaging from the Supplier or its supplier. The Buyer may make no changes to the original packaging and shall prevent any damage.
3. If the above obligations are not fulfilled in full or on time, the Sup- plier shall have the right to suspend the execution of the agreement until the time that the Buyer has fulfilled its obligations. The costs in connection with the delay obtained and the other consequences arising from this shall be at the expense and risk of the Buyer.
4. If the Buyer fails to comply with its obligations and the Supplier fails to require performance by the Buyer, it shall not affect the Supplier’s right to require performance at a later date.
6. Delivery, delivery terms
1. Agreed delivery terms shall never be considered as strict dead- lines. If the Supplier fails to meet its delivery obligations in full or on time, the Buyer must give notice of default to him and grant reasonable time to meet these delivery obligations at a later date. 2. The Supplier is entitled to deliver in phases, whereby each partial delivery may be invoiced separately.
3. The risk concerning the items to be delivered shall pass to the Buyer at the time of delivery. This is the moment that these items to be delivered will leave the premises or warehouse of the Supplier, or the moment that the Supplier has informed the Buyer that it may collect the items.
4. Dispatch or transport of the items shall take place at the expense and risk of the Buyer in a manner to be decided by the Supplier. The Supplier is not liable for any damage of whatever nature – whether or not to the items themselves – that is related to the dispatch or the transport.
5. If the Supplier delivers the items itself to the Buyer, the risk of the items will pass at the moment that these items arrive at the Buyer’s location and are in fact at its disposal.
6. If it appears impossible, due to a cause within the risk area of the Buyer, to deliver the items ordered (in the agreed manner) to the Buyer, or if these items are not collected, the Supplier shall have the right to store the items at the expense and risk of the Buyer. The Buyer should enable the Supplier after giving notice of the storage, within a term to be fixed by the Supplier, to deliver the items within the term fixed or collect the items within this term.
7. If the Buyer still fails to meet its purchase obligation after the term referred to in the previous paragraph, it shall be immediately in default. The Supplier shall then have the right to fully or partially ter- minate the agreement with immediate effect by a written statement and to sell the items to third parties without the Supplier being obli- ged to compensate any damage, cost or interest arising from this. The aforesaid shall not affect the Buyer’s obligation to compensate any (storage) costs, loss due to delay, lost profits or any other da- mage or the right of the Supplier to claim fulfillment at a later date. 8. An agreed delivery term will not take effect until the moment that the Supplier has received all information required for the delivery and the possible agreed (advance) payment of the Buyer. If delay arises from this, the delivery term shall be extended accordingly.
7. Complaints and returns
1. The Buyer is obliged to check the delivered items immediately after receipt and to state any visible failures, defects, damageand/ordeviationsinnumbers,ontheconsignmentnoteoronthe accompanying note. In the absence of a consignment note or an accompanying note, the Buyer must report the failures, defects etc. within 8 days after receipt of the items to the Supplier, followed by a written confirmation thereof. In the absence of such a report, the items are deemed to have been received in good condition and to meet the agreement.
2. Other complaints must be reported to the Supplier in writing immediately after discovery – yet ultimately within the agreed guarantee period. The Buyer shall bear all risks of failing to report directly. If no explicit guarantee period has been agreed, the period of three months following delivery shall apply.
3. If a complaint has not been lodged with the Supplier within the terms referred to in the previous paragraphs, it is not possible to make a claim under the agreed guarantee.
4. Items ordered shall be delivered in the (wholesale) packaging in stock at the Supplier’s and/or the minimum quantities or numbers. Small differences in view of specified measures, weights, numbers, colours etc., acceptable within the industry, are not considered as failures on the part of the Supplier. In such event it is not possible to make a claim under the guarantee.
5. Complaints shall not suspend the Buyer’s payment obligations. 6. The Buyer must give the Supplier the opportunity to investigate the complaint and must provide all information to the Supplier that is relevant for the complaint. If the items need to be returned for investigating the complaint, this will be at the expense of the Buyer unless the complaint appears well-founded. The transport risk will always be borne by the Buyer.
7. In all cases, returning the items shall take place in a manner to be determined by the Supplier and in the original packaging or deposit packaging.
8. No complaints can be lodged in respect of imperfections in or characteristics of items produced from natural materials, if these imperfections or characteristics are inherent to the nature of these materials.
9. No complaints can be lodged about discolourations and small colour deviations.
10. No complaints can be lodged about items that have changed in nature and/or composition or that have been fully or partially treated or processed.
1. The Supplier shall ensure that the agreed deliveries are carried out appropriately and in accordance with the standards applicable in its sector, but shall never give further guarantee in respect of these deliveries than explicitly agreed between parties.
2. The Supplier shall be responsible during the guarantee period for the usual quality and reliability of the items delivered.
3. If the manufacturer or supplier provides a warranty for the items delivered by the Supplier, this warranty shall apply in the same manner between the parties. The Supplier shall inform the Buyer in this regard.
4. If the purpose for which the Buyer wishes to treat, process or use the items differs from the customary use of these items, the Supplier shall only guarantee that the items are suitable for this purpose if it has confirmed so in writing to the Buyer.
5. No claim can be made under the guarantee until the Buyer has paid the price agreed for the items.
6. If the Buyer rightly makes a claim under the guarantee, the Supplier shall take care of the repair or replacement of the items – at its own discretion – or refund or reduce the agreed price. If there is any additional damage, the provisions set out in the Liability Article of these General Terms and Conditions shall apply.
1. The Supplier shall accept no liability other than the guarantees explicitly agreed or given by the Supplier.
2. Subject to the provisions of the previous paragraph, the Sup- plier is only liable for direct damage. Any liability of the Supplier for consequential damage such as trading losses, loss of earnings and/or losses sustained, damage caused by delay and/or personal or bodily injury shall be expressly excluded.
3. The Buyer must take all measures needed to prevent or limit the damage.
4. If the Supplier is liable for the damage suffered by the Buyer, the Supplier’s liability for compensation shall at all times be restricted to the maximum amount paid by the insurer where appropriate. If the insurer does not pay or if the damage is not covered by the insurance taken out by the Supplier, the Supplier’s liability for compensation shall be limited to the invoice amount of the delivered items.
5. The Buyer must sue the Supplier within 6 months at the latest after the damage it has suffered has become known to it or should have become known to it.
6. The Supplier is not liable and the Buyer cannot make a claim under the applicable guarantee, if the damage has arisen due to: a. improper use or use contrary to the purpose for which the items delivered were intended or the directions, advice, operating instructions, leaflets, etc. provided by or on behalf of the Supplier; b. by incompetent safekeeping (storage) or maintenance of the items;
c. by errors or incompleteness in the information provided to the Supplier by or on behalf of the Buyer.
d. instructions or directions from or on behalf of the Buyer;
e. due to the choice of the Buyer, which deviates from the Supplier’s advice and/or what is customary;
f. the choice made by the Buyer in respect of the items to be delivered.
g. repairs or other work or processing being carried out on the items delivered by or on behalf of the Buyer without express, prior, written approval from the Supplier
7. The Buyer is fully liable for all damage arising from this in all cases listed in the previous paragraph, and indemnifies the Supplier explicitly against any claims from third parties to compensate this damage.
8. The limitations of the liability stated in this article shall not apply if the damage is due to intent and/or recklessness by the Supplier or its supervisory staff on a management level or if mandatory legal provisions oppose this. Only in these cases shall the Supplier indemnify the Buyer against any third party claims.
10. Payment from other companies
1. The Supplier is always entitled to require (partial) advance payment or any other security for payment by the Buyer.
2. Payment must take place within an expiry period of 30 days after the invoice date, unless parties have agreed a different payment term in writing. The invoice shall be considered correct if the Buyer has not contested it within this payment term.
3. If an invoice is not fully paid after expiry of the term referred to in the previous paragraph or if it was not possible to pay the amount by direct debit, the Buyer is due to the Supplier a default interest of 1,5% per month, to be calculated cumulatively over the principal sum. Parts of a month are computed as a full month.
4. If the Buyer still fails to pay after receiving notice, the Supplier will furthermore have the right to charge the extrajudicial collection costs to the Buyer, amounting to 15% of the invoice sum, with a minimum of € 250,– (excl. VAT).
5. In the absence of full payment by the Buyer, the Supplier shall have the right to terminate the agreement without further notice of default by a written statement or to suspend its obligations under the agreement until the Buyer has made full payment or provided appropriate security. The Supplier shall also have the aforemen-tioned right of suspension if it has legitimate grounds to doubt the Buyer’s creditworthiness even before the Buyer enters into default regarding payment.
6. Payments made by the Buyer will first be deducted by the Sup- plier from all interest and costs due and then from the due and pay- able invoices that have been outstanding longest, unless the Buyer has stated in writing on payment that it concerns a later invoice. 7. The Buyer may not deduct any claims of the Supplier from any reclamations that it has on the Supplier. The aforesaid also applies if the Buyer applies for a (temporary) suspension of payment or is declared bankrupt.
11. Retention of title
1. The Supplier shall retain title of all items delivered and to be delivered up until the point at which the Buyer has completely fulfilled all payment obligations towards the Supplier.
2. The payment obligations referred to in the previous paragraph consist of payment of the purchase price of the items, increased by claims relating to work performed in connection with that delivery, as well as claims relating to any damage due to the Buyer’s attributable failure to meet its obligations, including payment of damages, extrajudicial collection costs, interest and possible penalties.
3. If this refers to the delivery of identical, non-individualized items, the consignment of items relating to the oldest invoice shall be considered to have been sold first. Therefore, retention of title always remains with the items delivered that are still in stock, in the shop and/or form a part of the inventory and equipment of the Buyer on invoking retention of title.
4. All items in which title is retained, may not be sold on by the Buyer in the framework of the ordinary business operations, unless it has also stipulated retention of title with its suppliers to the items delivered.
5. As long as the title is retained in the items delivered, the Buyer may not pledge the items in any manner or bring items under the (actual) control of a financer by means of lists containing items pledged.
6. The Buyer must notify the Supplier immediately if third parties pretend to have ownership or other rights to the items in which title is retained.
7. The Buyer must safekeep the items carefully and as identifiable property of the Supplier for as long as title is retained in them.
8. The Buyer has to take out a business interruption or home contents insurance to ensure that the items delivered which are subject to retention of title are included in the policy and the Buyer will allow the Supplier inspection on demand into the insurance policy and the accompanying proofs of premium payments.
9. If the Buyer contravenes the provisions of this article or if the Supplier claims retention of title, the Supplier and its employees shall have the irrevocable right to enter the Buyer’s premises and take back the items subject to retention of title. This applies without prejudice to the Supplier’s entitlement to compensation of damage, lost profit and interest and the right to terminate the agreement without any notice of default by a written statement.
12. Bankruptcy, loss of power to dispose of property, etc.
1. The Supplier always has the right to terminate the agreement without any notice of default by a written statement to the Buyer, at the time when the Buyer:
a. is declared bankrupt or files for bankruptcy;
b. applies for (temporary) suspension of payment;
c. is affected by enforceable seizure;
d. is placed under guardianship or judicial supervision;
e. otherwise loses the power to dispose of its property or loses legal capacity regarding all or part of its assets.
2. The Buyer must always notify the guardian or administrator of the (contents of the) agreement and these General Terms and Conditions.
13. Force majeure
1. In the event of force majeure on the part of the Buyer or the Supplier, the Supplier shall have the right to terminate the agreement by a written statement to the Buyer or to suspend the fulfillment of its obligations towards the Buyer for a reasonable term without being obliged to pay any compensation.
2. Force majeure with respect to the Supplier in the context of these General Terms and Conditions shall include: a non-culpable shortcoming by the Supplier, a non-culpable shortcoming of third parties or suppliers engaged by the Supplier or other serious grounds on the part of the Supplier.
3. Circumstances which are considered force majeure on the part of the Supplier include: war, revolt, mobilization, riots at home and abroad, government measures, strikes within the company of the Supplier and/or of the Buyer, or a threat of these and other circumstances, disruption of existing exchange rates at the time the agreement was concluded, operational failures due to fire, burglary, sabotage, power failure, internet or telephone failures, natural phenomena, (natural) disasters and suchlike, as well as transport problems and delivery problems arisen from weather conditions, roadblocks, accidents, and import and export hindering measures.
4. If force majeure occurs when only part of the agreement has been executed, the Buyer shall in any case be obliged to fulfill its obligations towards the Supplier until that moment.
14. Cancellation, suspension
1. If the Buyer wishes to cancel the agreement prior to or during the execution thereof, it shall be due compensation to be further determined by the Supplier. This compensation shall comprise all costs already incurred by the Supplier and its damage suffered due to the cancellation, including lost profits. The Supplier is entitled to fix the aforesaid compensation and – at its discretion and dependent on the deliveries already made – to charge 20 to 100% of the agreed price to the Buyer.
2. The Buyer is liable towards third parties for the consequences of the cancellation and indemnifies the Supplier against any claims from third parties arising from this.
3. The Supplier is entitled to settle the amounts paid by the Buyer with the compensation due by the Buyer.
4. Should the execution of the agreement be suspended at the request of the Buyer, the costs incurred until that moment shall be immediately due and payable and the Supplier will have the right to charge these to the Buyer. Furthermore, the Supplier shall have the right to charge to the Buyer all costs incurred or to be incurred during the suspension period.
5. If the execution of the agreement cannot be resumed after the agreed suspension period, the Supplier shall have the right to terminate the agreement by a written statement to the Buyer. If the execution of the agreement is resumed after the agreed suspension period, the Buyer must compensate any costs of the Supplier possibly arising from the resumption.
15. Applicable law/jurisdiction
1. The agreement entered into between the Supplier and the Buyer shall be governed exclusively by Dutch law.
2. The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
3. Any disputes shall be submitted to the competent court in the place where the Supplier is established, although the Supplier shall always retain the right to submit a dispute to the competent court in the place where the Buyer is established.
4. If the Buyer is established outside the Netherlands, the Supplier shall have the right to choose to submit the dispute to the competent court in the country or the state where the Buyer is established.