general terms and conditions
Van Besouw Tapijt B.V., with its registered office and main place of business at Puttenstraat 3 in (8281 BP) Genemuiden, filed on 1st of Mai 2010 with the Chamber of Commerce of Zwolle under number 08219843.
Article 1. Applicability of these terms and conditions
These terms and conditions apply to every quote, purchase agreement and/or building contract between Van Besouw Tapijt B.V., hereafter referred to as ‘Van Besouw’ or ‘Vendor’, and a Buyer/principal which Van Besouw declares these terms applicable to, insofar neither party explicitly departs from them. In this document, ‘Buyer’ refers to the principal.
Article 2. Quotes
1. Quotes issued by Van Besouw are valid for a period of 30 days, unless indicated differently. Van Besouw is only bound by quotes if they have been accepted by Besouw within 5 days, in a writing addressed to the Buyer. The prices contained in quotes exclude VAT, unless indicated differently.
2. Van Besouw is authorised to refuse orders without stating its reasons.
Van Besouw is also entitled to insist on cash on delivery, or on advance payment.
3. Any deviations from the quotation are only valid if confirmed in writing.
Article 3. Credit insurance
Van Besouw enters into any contract on the resolutory condition that Van Besouw’s credit insurer insures the claim on the Buyer. If the credit insurer of Van Besouw refuses to insure the claim on the Buyer or if he lets the insurance cover for one or more claims on the Buyer expire, Van Besouw is entitled to dissolve the contract with the Buyer or to suspend the observance of the contract. Van Besouw is not liable for the damages incurred by the Buyer as a result of such dissolution or suspension.
Article 4. Delivery
1. Unless agreed otherwise, deliveries take place ex-factory unloaded and unpackaged, as referred to in the Incoterms. The applicable Incoterms are the ones that are in force at the time the contract is entered into.
2. If Van Besouw arranges insurance for the transport of goods at the request of the Buyer, Van Besouw determines the time, transport method and freight route. Van Besouw only takes out transport insurance if this has been agreed between the parties in writing. The costs of the transport insurance are for the account of the Buyer. If Van Besouw undertakes to deliver the goods to the Buyer, the moment of delivery is when the goods reach their destination, before they are unloaded from the vehicle, without any notice being required. The cost for transferring and unloading the goods is for the account of the Buyer. Van Besouw is not liable for any damage to and/or value reduction of the goods, arisen due to a late arrival after an extraordinarily long transport journey, unless the delay is caused by wilful intent or gross negligence from Van Besouw or of its workers’ supervisors.
3. Van Besouw is entitled to deliver 5% above the quantity ordered. The amount invoiced is the amount that is actually delivered.
Article 5. Delivery time
1. Observing the agreed delivery date will never be on penalty of forfeiture of rights, unless the contrary is agreed. In the event of a late delivery, the Buyer must therefore send Van Besouw a written notice of default.
2. The Buyer is obliged to purchase goods at the time of delivery or at the time when they are made available to him according to the terms of the contract. If the Buyer refuses to purchase the goods or fails to give information or instructions required for the delivery, Van Besouw will invoice for the purchased goods, which will be stored at the risk of the Buyer. In that event, the Buyer will be liable for all additional costs, including the storage costs. After Van Besouw has given the Buyer another deadline for receiving the goods and if the Buyer has still failed to purchase them, Van Besouw is entitled to dispose of the goods as it sees fit.
3. For delivery on demand, the end of the agreed period is the latest date for requesting the goods. If no term is agreed for the delivery on demand, the applicable term is three months from the order date. If the buyer has not requested the goods within the agreed period or within three months after the order date, Van Besouw will charge for all the as yet unrequited goods. After Van Besouw has given the Buyer another deadline for receiving the goods on demand and if the Buyer has still failed to request them, Van Besouw is entitled to dispose of the goods as it sees fit.
Article 6. Part deliveries
Van Besouw is entitled to deliver sold goods in several batches. This does not apply if a part delivery has no stand-alone value. If the goods are delivered in batches, Van Besouw is entitled to invoice for each part separately.
Article 7. Technical claims, etc.
1. Van Besouw generally delivers in compliance with ECRA specifications.
2. If the goods delivered in the Netherlands need to be used outside the Netherlands, Van Besouw is only responsible for the goods to be delivered meeting the statutory technical requirements or standards in force in the country where the goods are to be used, if the Buyer has informed Van Besouw before the sale was agreed of those technical requirements or standards, and if Van Besouw has agreed to deliver in compliance with those technical requirements or standards.
3. Any other technical requirements expected by the Buyer of the goods to be delivered, that differ from normal requirements, need to be explicitly mentioned by the Buyer before the contract is entered into.
Article 8. Samples, models and examples
If Van Besouw showed or issued a model, sample or example, it is only shown or issued as guidance: the features of the goods to be delivered may differ from those of the sample, model or example, unless it is explicitly agreed that the goods are to be supplied in compliance with what was shown or with the sample provided, with the model or the example.
Article 9. Changes in the goods to be supplied
1. Van Besouw is entitled to supply goods that slightly differ in the following respects from the goods described in the purchase contract: colour, design, base material, construction.
2. If Van Besouw takes up the option and delivers a product that differs in essence from the agreed product, the Buyer is entitled to dissolve the agreement. The Buyer is authorised to do so within eight days from discovering the discrepancy or from being reasonably able to discover the discrepancy.
3. In the event of a work contract, the Buyer must accept that a 2% proportion of goods may be lower level quality or seconds.
Article 10. Guarantee
1. Van Besouw guarantees that the goods it delivers are free of defects in design, material and manufacture for a period of three months after the delivery.
2. If any article displays a design, material or production defect, the Buyer is entitled to have the article repaired. The Vendor may choose to replace the article if repairing it is problematic. The buyer is only entitled to a replacement if the article cannot be repaired.
3. Van Besouw is liable for damages incurred due to a defect in the goods supplied, in compliance with the provision in article 16 (Liability).
4. The guarantee does not apply if the damage is caused by incorrect treatment of the product or
Incorrect treatment is interpreted to include: laying, moving, cleaning or maintaining the carpet without observing Van Besouw’s instructions or the prescribed aids and tools.
Article 11. Reservation of title
1. The goods supplied by Van Besouw remain the property of Van Besouw until the Buyer has met all the obligations arising from any purchase agreement with Van Besouw:
– consideration in return with regard to any goods supplied,
– any claims owing to the Buyer failing to comply with (a) purchase agreement(s).
2. Items supplied by Van Besouw falling under the reservation of title clause pursuant to paragraph 1, can only be sold on in the normal context of the buyer’s business. In addition, the Buyer is not authorised to pledge the goods or to encumber them with any right.
3. Van Besouw already reserves the right of pledge on goods, for which the title has already transferred to the Buyer through payment and that are still in the Buyer’s possession, as referred to in article 3:237 of the Civil Code, for greater security against claims, other than those referred to in paragraph 1 of this article, which Van Besouw may have on any grounds against the Buyer. The authority included in this paragraph also applies to goods delivered by Besouw which have been treated or processed by the Buyer, and to which Van Besouw has consequently lost its title.
4. If the Buyer is in default of his obligations or if there is a legitimate fear that he will default on them, Van Besouw is entitled to recover or organise the recovery of the supplied goods subject to the reservation of title clause referred to in paragraph 1 from the buyer or from third parties holding the items for the Buyer. The Buyer is obliged to give his full co-operation to this effect, under penalty of a fine of 10% of the outstanding amount per day.
5. If third parties stake a claim on the items supplied subject to the reservation of title clause, the buyer is obliged to inform Van Besouw of this as soon as reasonably possible.
6. The Buyer undertakes to do the following on Van Besouw’s simple request:
– to insure the goods supplied under reservation of title and to keep them insured against the risk of fire, explosion, water damage and theft, and to grant inspection of the insurance policy;
– to pledge any claims from the Buyer on insurers with regard to the goods supplied under reservation of title to Van Besouw in the manner stipulated in article 3:239 of the Civil Code;
– to pledge the claims obtained by the Buyer against his clients on selling on the goods supplied by Van Besouw under reservation of title, to Van Besouw in the manner stipulated in article 3:239 of the Civil Code;
– to mark the goods supplied by Van Besouw under reservation of title as the goods of Van Besouw;
– to co-operate in other ways with any reasonable measures undertaken by Van Besouw to protect its title with regard to the goods, when it causes no unreasonable interference with the Buyer’s normal business activities.
Article 12: Price increase
If Van Besouw agrees on a particular price with the Buyer, Van Besouw is nevertheless entitled
to increase the price. Van Besouw is entitled to charge the price applicable at the time of delivery according to its current price list. If the price increase exceeds 5%, the Buyer is entitled to dissolve the agreement. In that case, Van Besouw is not owed any compensation.
Article 13. Terms of payment
1. Payment needs to be made within 30 days of the invoice date, unless the parties agreed to the contrary. After a period of thirty days from invoice date, the Buyer is in default; from the day the Buyer is in default, he becomes liable for 2% interest per month on top of the amount payable.
2. For projects exceeding 1,000 square metre and/or if Van Besouw is developing a new quality for the Buyer, not featured in Van Besouw’s collection, the Buyer must pay 30% of the price at the time of ordering, a second 30% 30 days before delivery, 30% on delivery and the remaining 10% within a period of 30 days after delivery. After these periods expire, the Buyer is in default; from the day the Buyer is in default, he becomes liable for 2% interest per month on top of the amount payable.
3. In the event the Buyer goes into liquidation, goes bankrupt or submits a request for a moratorium on payments, the liabilities of the Buyer will become immediately due and payable.
4. Payment must take place without deductions.
5. Any payments made by the Buyer are always used in the first instance to redeem any interest and costs, and only secondarily for the most overdue invoices, even if the Buyer requests that more recent invoices are settled first.
Article 14. Collection charges
1. If the Buyer is partially or wholly in default of one or more obligations, any reasonable costs in obtaining extrajudicial fulfilment are for the account of the Buyer. The Buyer is in any case liable:
– for 15% on the first Euro 2,950;
– for 10% on any further amounts up to Euro 5,900;
– for 8% on any further amounts up to Euro 14,748;
– for 5% on any further amounts up to Euro 58,990;
– for 3% on any additional amounts. If Van Besouw is able to demonstrate that it incurred higher costs which were reasonably necessary, those are also included in the compensation payment.
2. The Buyer is liable to Van Besouw for any legal costs incurred in all instances, unless they are unreasonably high. This only applies if Van Besouw and the Buyer instigated a legal procedure with regard to an agreement subject to these general terms and conditions, and the final and conclusive judgement rules partly of fully against the Buyer.
Article 15. Defects; complaints procedure
1. The Buyer must examine or arrange the inspection of the goods purchased and/or the work rendered at the time of delivery – or as soon as possible thereafter. The buyer must check whether the goods comply with the terms of the agreement, i.e.
– whether the correct items were supplied;
– whether the items supplied correspond to what was agreed in terms of size, number and quantity;
– whether the items supplied correspond to the agreed quality requirements or – if this is not the case – to the reasonable requirements for normal use and/or commercial use.
2. In the event of visible defects or shortages, the Buyer must report those in writing to Van Besouw within 8 days of delivery.
3. Non-apparent defects must be reported in writing to Van Besouw within eight days from being discovered, but not later than three months after delivery.
4. Even if the Buyer submits a complaint on time, he is still liable for payment and for proceeding with previously placed orders.
5. Items can only be returned to Van Besouw with prior written agreement, for the account and risk of the Buyer.
6. Complaints are not admissible if:
– the products supplies show deviations that are within a reasonable and usual tolerance with regard to size, weight, colour, bowing, finish of the pool (shading), etc;
– the products are used for a purpose other than the purpose they were supplied for;
– in Van Besouw’s opinion, the products have been repaired, treated, transported or stored inappropriately;
– the products have been cut up, trimmed, amended or damaged;
– the Buyer has acted contrary to Van Besouw’s instructions;
Article 16. Liability
1. Van Besouw is not liable for damages incurred as a result of defects in goods supplied, except as described in article 10 (Guarantee) of these terms and conditions. Any liability with regard to defects discovered and/or reported by the Buyer more than three months after delivery is excluded. Van Besouw is not liable for costs, damage including consequential damage, corporate losses and interests as a direct or indirect result of
defects in the design, material or manufacture or other defects in any goods supplied.
2. Van Besouw’s liability, insofar it is covered by its liability insurance, is limited to the amount of the payment made by its insurer. In the event the insurer does not make a payment or if the damage is not covered by the insurance, Van Besouw’s liability is limited to the invoice amounts for the goods concerned.
3. In the event of contract work/contracting, Van Besouw’s liability is limited to the invoice amount for the work concerned.
4. The limitations of liability contained in these terms and conditions do not apply if the damage results from wilful intent or gross negligence of Van Besouw or of its workers’ supervisors.
Article 17. Force majeure
1. Force majeure is defined as circumstances preventing the fulfilment of a contract, that are non-attributable to Van Besouw. The circumstances beyond Van Besouw’s control include the following (insofar they make the fulfilment of the contract unreasonably difficult or impossible): war, government measures, quarantine, epidemics, holds-up due to frost, strikes in companies other than those of Van Besouw, wildcat strikes or political strikes at Van Besouw’s company, a general shortage of raw materials and other materials required to complete the items or services that form part of the agreed works, any unforeseeable delay of suppliers or other third parties which Van Besouw depends on and general transport problems.
2. Van Besouw is also entitled to invoke force majeure, if the circumstances preventing (further) compliance begin after Van Besouw should have fulfilled its obligations.
3. During force majeure, Van Besouw’s obligations to deliver and other obligations are suspended. In the event the period of force majeure, preventing Van Besouw from fulfilling its obligations, exceeds three months, either party is entitled to dissolve the agreement without incurring liability for compensation.
4. If Van Besouw has already partially fulfilled its obligations at the time the force majeure sets in, or if it can only partially fulfil its obligations, it is entitled to issue a separate invoice for the work already delivered or for the part that can still be delivered and the Buyer is obliged to settle the invoice as if it concerned a separate contract. However, this does not apply if the part already delivered or that can be delivered has no stand-alone value.
Article 18. Termination of the agreement
1. The claims of Van Besouw on the Buyer become immediately due and payable under the following conditions:
– if, after the contract is concluded, Van Besouw learns of circumstances that constitute reasonable grounds to fear that the Buyer will not fulfil his obligations;
– if, at the time the contract was concluded, Van Besouw asked the Buyer for security with regard to compliance to the contract, and if the security either failed to materialise or is insufficient;
– if the Buyer acted contrary to one or more of the provisions in the contract or to these general terms and conditions;
– if the Buyer is declared bankrupt or is given a moratorium on payments;
– if the company of the Buyer ceases trading or goes into liquidation;
– if any assets of the Buyer are seized;
– if the Buyer sells his company or if the shareholder of the Buyer’s company sells his shares in the Buyer’s company..
2. In the aforementioned events, Van Besouw is entitled to either suspend further completion of the contract or to proceed to dissolving the contract, without prejudice to Van Besouw’s entitlement to claim compensation.
3. If circumstances arise with regard to persons and/or materials which Van Besouw uses or tends to use to fulfil the contract, which are of such a nature that they make fulfilling the contract impossible or so problematic and/or disproportionately costly that complying with the contract cannot reasonably be expected, Van Besouw is entitled to dissolve the contract.
Article 19. Confidentiality/intellectual property
1. The Buyer undertakes to observe complete confidentiality of any data and information concerning Van Besouw, both during and after the contract is completed, insofar these data are disclosed in confidence or insofar they are clearly of a confidential nature.
2. Van reserves all rights, including intellectual property rights, with regard to the products it supplies. The Buyer undertakes not to violate those rights in any way, either directly or indirectly, or not to harm them by using them or in any other way, acknowledging Van Besouw as the title holder.
Article 20. Indemnification
1. If Van Besouw manufactures and sells products based on instructions, drawings, samples or models provided by the Buyer, the Buyer guarantees that Van Besouw does not infringe any copyrights, including intellectual property rights of third parties by doing so, and the Buyer indemnifies Van Besouw against any material or procedural liabilities arising from claims by third parties based on intellectual property rights or other rights.
2. The Buyer indemnifies Van Besouw against any material or procedural liabilities arising from claims made by third parties with regard to damages associated with fulfilling present contract, insofar the liabilities concerned would be limited or excluded if the Vendor would be able to invoke the limitation or exclusion of his liability as a result of these terms and conditions.
Article 21. Adjudication of disputes
In a departure from the statutory rules for the competence of the civil court, any dispute between the Buyer and Van Besouw will be adjudicated by the competent court in Zutphen. Van Besouw nevertheless remains entitled to take out a writ against the Buyer in front of the competent judge in accordance with the law or the applicable international treaty.
Article 22. Applicable law
Any agreement between Van Besouw and the Buyer is governed by Dutch law.
Article 23. Amendment of the terms and conditions
Van Besouw is entitled to amend these terms and conditions. These amendments take effect at the time indicated in the amendment. Van Besouw will give the Buyer sufficient advance notice of any amendments to the terms and conditions. If the amendment does not indicate when it become applicable, the amendment becomes applicable to the Buyer as soon as the latter is informed of the amendment.