GENERAL TERMS OF SALE AND DELIVERY
VAN RIJSOORT B.V., established: Metaalstraat 1A, 5107 ND Dongen, The Netherlands, lodged on the 1st of September 1998, with the Chamber of Commerce in Tilburg,
The Netherlands, holding number 2124.
Article 1: Applicability of these terms
These terms apply to all offers made by and every contract agreed upon, concerning Van Rijsoort BV and the buyer, upon who Van Rijsoort BV declared these terms to be applicable, as far as both parties did not explicitly deviate from these terms. Any possible general terms of the buyer will be definitely declined by Van Rijsoort BV.
Article 2: Offers
Offers made by Van Rijsoort BV are without engagement, unless stated otherwise. Van Rijsoort BV is only bound to these offers in case the entering of these offers by the buyer are confirmed by Van Rijsoort BV as to carry out the contract agreed upon or as by a confirmation in writing. The prices mentioned in an offer are exclusive of VAT, unless stated otherwise. Applications for offers and/or orders of a buyer can be refused by Van Rijsoort BV without reasons given.
Article 3: Delivery
1. Unless otherwise agreed upon, delivery will be ex works Dongen, conformably the ICC Incoterms 1990.
2. The opposing party is obliged to buy the products bought at the moment they are being delivered or at the moment at which the products are placed at the buyer"s disposal in accordance with the agreement. If the opposing party refuses the offtake or is negligent as in giving information or instructions, necessary for the delivery, the products will be stored at risk for the opposing party. In that case, the opposing party will be obliged to pay for all additional expenses, under which in all cases the expenses of storage.
3. If Van Rijsoort BV mediates to realise possible transport at definite request of the buyer, Van Rijsoort BV will not be responsible nor liable in any way, neither will she be responsible to complete or to place at disposal any required documents. The transport will take place for full account and risk of the buyer.
4. At point of delivery the goods will be for account and risk of the buyer.
The buyer is always to insure the risk during transport of the goods bought himself, also if Van Rijsoort BV and the buyer should agree on another place of delivery.
Article 4: Delivery time
A delivery time agreed on is no fatal time, unless definitely is agreed on otherwise. In case of non timely delivery the buyer is therefor ought to hold Van Rijsoort BV liable by letter, putting a reasonable time later on, to be fulfilled by Van Rijsoort BV.
Article 5: Partial deliveries
Van Rijsoort BV is allowed to deliver the sold goods in parts. It is not allowed in case the part delivered does not have any independent value. If the goods are delivered in parts, Van Rijsoort BV is allowed to make an separate invoice for every part.
Article 6: Demands and requirements
If the goods to be delivered in the Netherlands are to be used abroad, Van Rijsoort BV is to be held responsible for the goods to come up to the demands and requirements made by the laws and/or regulations of the country of destination, if the buyer did inform Van Rijsoort BV about the use abroad and the current demands and requirements made for that country, before the contract was actually agreed upon.
Article 7: Samples, Models and Examples
In case Van Rijsoort BV did show or provide a model, sample or example, it is to be presumed to be shown or provided as in a way of indication: the qualities of the goods to be delivered might differ from the model, the sample or the example, unless explicitly has been stated that delivery was to be conformably to the model, sample or example shown or provided.
Article 8: Changes in de goods to be delivered
Van Rijsoort BV is allowed to deliver goods which differ regarding the next points of the goods described in the buying-agreement: colour, size, model. In case Van Rijsoort BV delivers goods that do materially differ from which was agreed upon, the buyer is entitled to dissolve the agreement. The buyer does have this entitlement during 3 days after he took delivery off the goods or reasonably could have been taking delivery off these goods.
Article 9: Termination of the agreement
1. All outstanding debts of Van Rijsoort BV on the buyer are repayable at call in the following cases:
- in case circumstances would come to the knowledge of Van Rijsoort BV after concluding a contract, that gives Van Rijsoort BV good reason to fear that the buyer will not meet his obligations;
- in case the security for the fulfilment, which Van Rijsoort BV did ask the buyer for, to give at concluding the contract, fails to come or is insufficient.
In the cases mentioned above Van Rijsoort BV is authorised to delay further
execution of the agreement, as to dissolve the agreement, without detriment
to the right that Van Rijsoort BV enjoys to claim compensation.
2. In case circumstances would occur regarding persons and/or material of whom and/or which Van Rijsoort BV makes use or should make use at the fulfilment of the agreement, which and/or who would be of that sort and condition, that the fulfilment of the agreement would get either impossible or difficult and/or disproportionate expensive to such a degree, that fulfilment of the agreement could not reasonably be required, Van Rijsoort BV is authorised to dissolve the agreement.
Article 10: Guaranty
1. On the goods delivered Van Rijsoort BV provides no other guaranty as which has been provided by her supplier.
2. In case the goods show a mistake regarding the design, material or production, the buyer has a right to repair. Van Rijsoort BV can make the decision to replace the goods if repair does encounter difficulties. The buyer only has a right to replacement if repair would not be possible.
3. For damage arisen as a cause of a fault of the delivered, on which repair or replacement is not possible, Van Rijsoort BV is not to be held responsible, the manufacturer of the goods delivered however is.
4. The guaranty is not valid, if damage is caused by improper handling.
Improper handling is to include in any case: injudicious or careless handling and/or use, use which deviates either from the instructions for use, or what is mentioned in the safety standards or the guaranty regulations belonging to the goods, or climatic improper storage of the goods.
Article 11: Under reservation of property
1. The goods delivered by Van Rijsoort BV will remain into the ownership of Van
Rijsoort BV until the buyer has met all the undermentioned obligations resulting from all current buying-agreements:
- the equivalents with regard to the delivered or to be delivered goods itself;
- possible debts due to non performance on the side of the buyer regarding one or more buying-agreements.
2. Goods delivered by Van Rijsoort BV, which under subsection 1 come under reservation of property, may only be reselled in accordance with a normal conduct of business. Apart from that, the buyer is not authorised to hypothecate the goods nor to claim any other rights on these goods.
3. In case the buyer does not fulfil his obligations or if reasonable fear exists that he will not do so, Van Rijsoort BV is entitled either to recollect the delivered goods or to have the delivered goods recollected, on which reservation of property, as ment in subsection 1, lies with the buyer or a third party, which holds the goods for the buyer. In this matter the buyer is obliged to give full co-operation on penalty of a 10% fine based on the by the buyer"s daily amount payable.
4. In case a third party wants to claim any right on the under reservation of property delivered goods, the buyer is obliged to inform Van Rijsoort BV as soon as possibly could have been expected.
5. The buyer commits himself on first request of Van Rijsoort BV to:
- insure en keep insured, the goods delivered under reservation of property against water damage or damage caused by fire and/or explosion and against theft, and to supply a policy of the insurance for inspection;
- hypothecate all claims of the buyer to insurers, regarding the under reservation delivered goods, to Van Rijsoort BV as has been dictated in Art. 3: 239 of the Dutch civil code;
- hypothecate the debts, which the buyer obtains towards his customers by selling the under reservation of property delivered goods by Van Rijsoort BV, to Van Rijsoort BV as has been dictated in Art. 3: 239 of the Dutch civil code;
- mark the under reservation of property delivered goods as being the property of Van Rijsoort BV;
- give co-operation in other ways to all reasonable actions, taken by Van Rijsoort BV to protect the ownership regarding her goods, which do not hamper the buyer in the normal conduct of his business.
Article 12: Shortcomings; times of complaint
1. The buyer is ought to check or to get checked the goods bought, immediately on delivery or as soon as possible after that. The opposing party is ought to check whether the delivered comes up to what was agreed upon, namely:
- if the correct goods have been delivered;
- if the delivered goods correspond with the agreement regarding the quantity (for example the number and the amount);
- if the delivered goods come up to the quality requirements agreed on or, if these are failing, to the demands which may be claimed for normal use and/or custom purposes.
2. In case visible shortcomings or shortages are noted, the buyer is ought to report these in writing to Van Rijsoort BV within 3 days after delivery.
3. Non visible shortcomings are ought to be reported by the buyer to Van Rijsoort BV in writing, within 3 days after discovery, however within 30 days after delivery.
4. Even when the opposing party claims on time, his obligation to pay and accept delivery of orders made, remains. Goods can be returned only after permission in writing of Van Rijsoort BV.
Article 13: Price increases
1. If Van Rijsoort BV and the buyer do agree on a certain price, Van Rijsoort BV is nevertheless authorised to increase the price in case of price increasing factors, such as labour and production expenses, give occasion to do so.
2. If the price increase comes to over a 10%, the buyer has the right to dissolve the agreement.
Article 14: Payment
1. Payment is ought to take place either cash on delivery or, if such is definite agreed upon in writing, within 30 days after date of invoice, by legal tender at the office of Van Rijsoort BV, or by transfer of the amount due, to bank account number 18.104.22.168 of Van Rijsoort BV in Dongen, The Netherlands.
If payment should fail to come, the buyer will be in default either immediately on cash payment, or after 30 days when payment within 30 days after date of invoice was agreed on; the buyer is due to pay either the legal interest or an interest of 1,5% per month, of the amount due, such as desired by Van Rijsoort BV, as from the moment the buyer has been in default.
2. In case of liquidation, bankruptcy or suspension of payment of the buyer, the obligations of the buyer will be repayable at call.
3. Payment is ought to take place without discount or clearance.
4. Payments executed by the opposing party will cover settlement primarily for all interest and expenses due and secondly for all oldest unsettled repayable debts, even so if the opposing party should mention, that the settlement regards a newer invoice.
Article 15: Collecting charges
1. If the buyer will either be slow or in default to come up to one or more of his obligations, all reasonable expenses, made in order to come to settlement without juridical interference, will be for account of the buyer. The buyer is due to pay 15% of the principal amount with a minimum of EURO 70,00. In case Van Rijsoort BV demonstrates to have made higher expenses, which were reasonably necessary, these will also be for account of the buyer.
2. The buyer is due to pay to Van Rijsoort BV all judicial expenses made by Van Rijsoort BV, inclusive the total lawyer and/or crier expenses, made to all authorities, unless they are unreasonably high. This does only count if Van Rijsoort BV and the buyer are in a lawsuit regarding an agreement on which these general terms are applicable, and a sentence will be entering on which judgement will be given against the buyer either completely or in considerate importance.
Article 16: Liability
Van Rijsoort BV is to hold liable towards the buyer only and exclusively as in the following ways:
1. for damage caused by shortcomings in de delivered goods, the exclusive liability that will be in force is such as is settled in article 9 of these terms.
2. for damage caused on purpose of gross fault by Van Rijsoort BV or her executive inferiors.
3. apart from that the liability of Van Rijsoort BV will be limited to the highness
of the invoice involved (with the goods).
4. Nor Van Rijsoort BV neither the producer is to be held responsible if damage occurs as cause of improper handling of the delivered goods. Improper handling is to include in any case: injudicious or careless handling and/or use, use which deviates either from the instructions for use, or what is mentioned in the safety standards or the guaranty regulations belonging to the goods, or climatic improper storage of the goods.
5. Van Rijsoort BV is not to be held responsible for indirect damage, such as industrial damage, with the buyer of with third parties. In case Van Rijsoort BV would be held responsible by a third party, Van Rijsoort BV will be secured form the buyer for that matter.
Article 17: Superior power
1. Superior power is to be explained as circumstances, which do hamper the fulfilment of the agreement and which are not to be put to Van Rijsoort BV. Under these are to count, if and as far these circumstances make the fulfilment impossible or do hamper it unreasonably: strikes in other companies than those of Van Rijsoort BV; unofficial or political strikes at Van Rijsoort BV; embargo"s on the import or export or other similar public measures; a general lack of raw materials needed and other goods and/or services necessary to accomplish the performance agreed on; non foreseen stagnation at the suppliers or other third parties of which Van Rijsoort BV is dependent on; occupational disability of the entrepreneurs of Van Rijsoort BV and general problems of transport.
2. Van Rijsoort BV is also entitled to the right to appeal to superior power, if the circumstance, which hampers further fulfilment, occurs after Van Rijsoort BV should have come up to her agreement.
3. During superior power the deliver and other obligations of Van Rijsoort BV will be suspended. In case the period, in which fulfilment of the obligations by Van Rijsoort BV would not be possible for superior power, would last longer than 2 months, both parties are allowed to dissolve the agreement, without existing a obligation for compensation in that case.
4. In case Van Rijsoort BV already has come up partially to her obligations on upon entrance of the superior power, or only could come up to her obligations partially, she is entitled to make an single invoice for the already delivered where appropriate the part deliverable, and will the buyer be entitled to pay this invoice as if it was a separate agreement. This will not be in force if the already delivered where appropriate the deliverable part does not have independent value. The buyer will return the already delivered goods free of costs to Van Rijsoort BV.
Article 18: Settlement of dispute
In deviations of the statutory rules for the authority of the Civil Lawyer every dispute between the buyer and Van Rijsoort BV, will be settled by the Court of Justice in Breda, in case the Court of Justice is authorised. However, Van Rijsoort BV stays entitled to summon the buyer for the lawyer according to the law or to the applicable international convention.
Article 19: Applicable law
Dutch Law is applicable for every agreement between Van Rijsoort BV and the buyer, with exclusion of the international conventions.
Article 20: Modification of the terms
1. Van Rijsoort BV is entitled to make modifications to these terms. These modifications will come into force at the announced moment of operation. Van Rijsoort BV will send the opposing party the modificated terms in good time. If no moment of operation is communicated, modifications towards the opposing party will come into force as soon as the modification is communicated.
2. In case any condition of these terms void or will be nullified, the other conditions of these terms will be completely in force and Van Rijsoort BV and the buyer will enter deliberation, in order to agree upon new conditions in replacement of the void and/or nullified conditions, observing the aim and the drift of the void and/or nullified condition as much as possible.
GENERAL TERMS OF SALE AND DELIVERY