GENERAL TERMS AND CONDITIONS OF THE LIMITED COMPANY LIMITED LIABILITY P. DE HEUS AND SONS GREUP BV, HAVING ITS REGISTERED OFFICE AND OFFICE AT HET STOUGJESDIJK 153, AT 3271 KB MIJNENHEERENLAND, GEMEENTE BINNENMAAS.
Art. 1. General.
Paragraph 1. In these general terms and conditions:
a. De Heus: P. de Heus and Sons Greup B.V .;
b. The counterparty: the contracting party of De Heus, which is the validity of these conditions
expressly or tacitly accepted.
Subsection 2. In the following, the term consumer means a natural person who does not act in the exercise of a profession or business.
Paragraph 3. De Heus and the other party may deviate from these general terms and conditions, provided they expressly and in writing determine this.
Art. 2
De Heus retains commercial possession with the execution of import and export of / and the trade in agricultural machines and earth-moving machines, iron, metals and related articles; the sale of vehicles (automobiles) in the general sense of the word.
Art. 3 Applicability.
Paragraph 1. These general terms and conditions form part of every agreement concluded by De Heus with the other party. Furthermore, the general terms and conditions apply to the period prior to the conclusion of the agreement. For example, a quote is therefore issued by De Heus under the present conditions.
Paragraph 2. The applicability of the general terms and conditions of the other party is hereby expressly excluded.
Subsection 3. Provisions deviating from these general terms and conditions only apply if they have been expressly agreed in writing between De Heus and the other party.
Subsection 4. The other party, with whom the present conditions were contracted once, agrees with the applicability of these conditions to subsequent offers and agreements between De Heus and the other party.
Art. 4 Offers and assignments.
Paragraph 1. All offers from De Heus are without obligation. De Heus has the right to revoke its offer up to two days after the acceptance of its non-binding offer has reached it.
Paragraph 2. An offer is made by De Heus, as long as the stock lasts.
Subsection 3. Assignments are only accepted when they have been confirmed in writing by De Heus, or when De Heus has actually executed the assignment. Changes or additional provisions are only effective after written confirmation from De Heus, or after De Heus has actually implemented this.
Paragraph 4. The provisions of paragraph 3 do not affect the power of the parties to prove the existence of the assignment and / or of the changes made therein by other means.
Paragraph 5. De Heus is not bound to offers in which there are manifest errors or counting errors.
Paragraph 6. The prices offered by De Heus are exclusive of VAT.
Art. 5 Warranty.
Paragraph 1. No new guarantee applies to new movable goods and new parts, other than those provided by the manufacturer or the importer, without prejudice to the rights the buyer has under the Act. De Heus hereby transfers to its counterparty any existing right to guarantee with regard to the goods sold by De Heus, in relation to the manufacturer or importer. On the basis of the order confirmation, the delivery note and the invoice, it can be determined which product is involved and who is the importer, or the manufacturer. De Heus is at all times prepared to provide further information to its counterparty.
Paragraph 2. No guarantee applies to used products. These products are sold by De Heus, in the condition in which they were at the time of the purchase. In particular, De Heus does not give any guarantee to the buyer regarding the proper functioning of the sold product. De Heus gives the buyer the opportunity to examine the sold goods in advance.
Paragraph 3. The warranty claims will lapse if:
a. The other party does not inform De Heus as soon as possible after the defects have been identified.
b. De Heus is not given the opportunity to remedy the defects.
c. Third parties without prior knowledge or permission from De Heus have performed work on the product sold by De Heus.
Art. 6 Delivery time.
Paragraph 1. The delivery period stated by De Heus is non-binding, there is no question of a strict deadline, unless explicitly agreed otherwise in writing.
Subsection 2. The delivery time starts after the agreement has been concluded and furthermore all technical details have been reached and all data required for the execution of the assignment have been received in full by De Heus and the payment, if and in so far as this is in the order. must be done.
Subsection 3. Unless a firm deadline has been agreed in writing, the other party will first have the power of action if the delivery time has been exceeded, after it has given De Heus written notice of default in advance. The term that the other party, De Heus, must at least give notice to still perform the agreed performance is at least fourteen days.
Subsection 4. Exceeding the term set by the counterparty in its notice of default in a legally valid manner for the delivery over exceeding the agreed delivery time, if a firm deadline has been expressly agreed in writing, the counterparty does not give the right to terminate the agreement, unless the counterparty can demonstrate that timely performance by De Heus is essential for her within her business operations. The dissolution must in that case take place in writing and at the latest within eight days after the aforesaid date of exceeding. The provisions of this paragraph do not apply if the other party is a consumer.
Member. 5. Exceeding as referred to in paragraph 4 does not give the counterparty the right not to fulfill any obligation arising from the agreement.
Art. 7 Compliance by De Heus.
Paragraph 1. De Heus is authorized to pay the amount due in parts.
Paragraph 2. The commitment can be fulfilled by someone other than De Heus.
Art. 8 Power of amendment.
Paragraph 1. De Heus is entitled to change the performance promised by it if proper business operations or the interests of third parties require it to count on the normal settlement of its agreement, while it can not sufficiently protect itself in its legal relation to its links. the probability that it can provide the performance it has promised only in modified form. The aforementioned interests must be known to the other party.
Subsection 2. De Heus is entitled at all times to make a minor change in the performance promised by it, unless the other party has a large and knowledgeable interest in receiving the performance. A minor change is a performance that deviates by five percent or less from the promised performance.
Art. 9 Risk transition.
The performance of De Heus, for example the goods delivered by it, is at the risk of the other party from the time that De Heus informs the other party that the goods can be collected or can be delivered. The foregoing applies even though ownership has not yet been transferred. The counterparty therefore continues to owe its performance, the stipulated price, regardless of the destruction or deterioration of the item by a cause that can not be attributed to De Heus. De Heus is entitled to invoice the goods in question immediately after aforementioned notification of the availability of the goods to the other party.
When collecting or delivering the items, the other party must carry out a quantitative and qualitative check as far as possible. If the other party shows that the goods delivered show a defect or otherwise do not comply with what has been agreed, then it must immediately point out De Heus and take measures to limit the damage if necessary.
Subsection 1. The other party can no longer rely on a defect in the performance of De Heus if it has not protested in writing to De Heus within ten days of the invoice date, stating precisely the nature of the defect. If the other party does not protest within the aforementioned period, it loses all rights and powers that were at its disposal on account of the defect.
Paragraph 2. If complaints are found to be well-founded by De Heus, then they are entitled to rectify the defect or to apply a reasonable price reduction.
Paragraph 1. All quoted prices in quotations and offers are target prices.
Paragraph 2. Prices are exclusive of VAT and ex-warehouse.
Paragraph 3. Unless a fixed price has been agreed upon explicitly and in writing, De Heus reserves the right to pass on changes in cost-determining factors to the other party.
Subsection 4. If the other party is a consumer and the increase of the stipulated price by De Heus takes place within three months after the conclusion of the agreement, the other party / consumer has the right, provided immediately after having taken note of the price increase, the assignment returned and to compensate for the compensation already paid on the basis of the prices applicable before the increase.
Paragraph 5. The costs of transport, as well as loading and unloading, are charged extra.
Paragraph 6. The packaging is not included in the price and will be charged separately by De Heus. The necessity of packaging is at the discretion of De Heus.
Paragraph 1. De Heus is entitled to require payment in advance by the other party of (part of) the agreed price.
Paragraph 2. The other party must pay in the manner and in the currency, as agreed between the parties and, failing this, in euros.
Paragraph 3. The goods delivered by De Heus must be paid in cash and on delivery. If the Heus has expressly indicated this in writing, there may be a payment term no later than eight days after the date of delivery. The payment must be credited to De Heus’s bank / giro account within the aforementioned period. The claim of De Heus is at all times immediately due and payable.
Paragraph 4. De Heus does not grant a discount in the event of payment within an agreed payment term.
Paragraph 5. Costs made by De Heus for the account of the other party must be paid by the other party upon delivery or, where applicable, upon payment of the last installment.
Paragraph 6. It is not permitted to suspend or omit payment by means of compensation or an alleged counterclaim. Furthermore, complaints do not suspend the payment obligations of the other party.
Paragraph 7. Payments made by the other party always serve to settle all interest and costs owed and then the due and payable invoices that have been outstanding the longest, even if the other party states that the payment relates to a later invoice.
Paragraph 8. The other party can only object in writing to the invoice within eight days of the invoice date.
Subsection 1. The compensation, payable by the other party for delay in the payment of a sum of money, consists in the contractual interest of that sum over the time that the other party was in breach of its payment.
The contractual interest rate is 1.3% per month, whereby a part of a month is calculated for a whole month. Every year after the end of a year, the amount on which the contractual interest is calculated is increased by the interest due for that year.
Paragraph 2. The other party must also reimburse the costs for obtaining payment out of court.
This includes the costs of notice of default and extrajudicial collection costs. The costs are calculated in accordance with the collection rates of the Netherlands Bar Association. The costs amount to at least 15% of the claim.
Paragraph 3. The foregoing is without prejudice to De Heus’s right to compensation for the damage it has suffered, because after the commencement of the default, the price of the money to be paid for which the obligation applies is in relation to that of the money has changed one or more other countries. All this with due observance of article 6: 125, paragraph 2 of the Dutch Civil Code.
Member 1. De Heus reserves the ownership of all goods delivered by it to the other party until the purchase price for all these items has been paid in full. If De Heus performs activities for the benefit of the counterparty, to be compensated by the counterparty, in the context of these sales agreements, this reserved property will apply until the counterparty has also fully paid these claims of De Heus. The retention of title also applies to the claims that De Heus may obtain against the other party due to shortcomings of the other party in one or more of its obligations towards De Heus.
Subsection 2. As long as the ownership of the delivered goods has not been transferred to the other party, the latter may not pledge the goods or grant any other right to a third party, subject to the provisions of paragraph 6 of this article.
Subsection 3. On delivered items that have passed into the other party’s possession and are still in the hands of the other party, De Heus hereby reserves the right now for liens as referred to in Section 3: 237 of the Dutch Civil Code to provide multiple security for claims. other than the one listed in Section 3:92 paragraph 2 Dutch Civil Code, which De Heus may then have against the other party for whatever reason.
Paragraph 4. The other party is obliged to store the goods delivered under retention of title with the necessary care and as recognizable property of De Heus. The other party is obliged to insure the goods for the duration of the reserved property against fire, explosion and water damage as well as against theft and to make the policies of these insurance policies available to De Heus on first notification. All claims of the other party to the insurers of the goods pursuant to these insurances will, as soon as De Heus indicates this to be desired, be pledged to it by the other party in the manner indicated in Section 3: 329 of the Dutch Civil Code, to a greater degree of certainty. of De Heus’s claims against the other party.
Paragraph 5. If the other party fails to fulfill its payment obligations towards De Heus or gives De Heus good reason to fear that it will fail in this obligation, De Heus will be entitled to take back the goods delivered under retention of title. The other party must then give De Heus the opportunity to take back the goods. She must provide De Heus with access to these items at all times. After repossession, the counterparty will be credited for the market value, which in no case can be higher than the original purchase price, less the costs of the repossession.
Paragraph 6. The other party is permitted to sell and transfer the goods delivered under retention of title to third parties in the normal course of its business. When selling on credit, the other party is obliged to stipulate a retention of title from its customers on the basis of the provisions of this article.
Paragraph 7. The counterpart.
Subsection 1. The other party is entitled to terminate the contract at any time it desires prior to the delivery of the sold item. De Heus will then be entitled to 50% of the agreed purchase price as compensation.
Paragraph 2. If the other party is a consumer, the cancellation costs are 10%.
Paragraph 3. The provisions of paragraphs 1 and 2 do not affect the right of De Heus to claim compensation for the entire damage suffered by it as a result of the cancellation.
Art.17 Liability.
Paragraph 1. De Heus accepts liability for damage suffered by the other party as a result of an attributable shortcoming in the performance of its obligation, if and insofar as this liability is covered by its insurance, up to the amount of the benefit paid by the insurance. .
Paragraph 2. If the insurer decides not to pay for any reason, the liability is limited to an amount equal to the present purchase price, with an absolute maximum of € 25,000 (ZEGGE FIVE-TWENTY-THOUSAND EURO).
Paragraph 3. Contrary to paragraphs 1 and 2, De Heus does not accept any liability for damage due to exceeding the delivery periods as a result of changed circumstances and damage as a result of inadequate cooperation, information or materials from the other party.
Paragraph 4. In the event of the damage referred to above, De Heus is obliged to immediately take the necessary measures to limit it. It is entitled to prevent the payment of compensation by taking the consequences of the errors that are eligible for compensation for its own account, provided this is done adequately and within a reasonable period.
Paragraph 5. In the event of a wrongful act by De Heus or its subordinates, De Heus is only liable for compensation for damage caused by death or bodily injury. In these cases, liability is limited to the relevant limits in the insurance policy.
Paragraph 6. De Heus is not liable for violation of the rights of third parties by the use of data provided by or on behalf of the other party for the execution of the assignment.
Paragraph 7. De Heus is not liable if the failure is the result of force majeure.
Paragraph 8. If damage is caused to third parties by De Heus during the performance of the agreement or by a person or object for which it is liable, then the other party is obliged to compensate the third party for this damage.
Paragraph 9. The restrictions included in this article do not apply if the damage is the result of deliberate acts or gross negligence by De Heus or its managerial subordinates to be designated by the court.
Paragraph 10. Any liability of De Heus expires if the other party has not given notice in writing to De Heus within one year of the date of the loss-causing event, to claim compensation. The foregoing applies unless.
Subsection 1. In the event of force majeure, the delivery and other obligations of De Heus will be suspended. If the period in which De Heus can not fulfill the obligation due to force majeure lasts longer than thirty days, both parties are entitled to dissolve the agreement without judicial intervention, without there being any obligation to pay compensation.
Subsection 2. If De Heus can partially meet its obligations upon the occurrence of the force majeure, it is entitled to invoice for what has already been performed or what is to be performed, to invoice separately and the other party is obliged to pay this invoice as if it were a separate item. contract.
Subsection 3. Force majeure within the meaning of this article means circumstances that prevent the fulfillment of the obligation and which can not be attributed to De Heus. This will include, among other things, the non-functioning or faulty functioning of the goods, such as cranes, which De Heus uses in the execution of the agreement, weather conditions such as rain and frost, import problems, strikes and shortcomings of suppliers and transporters of De Heus, which As a result, De Heus can not fulfill its obligations towards the other party.
If a representative acts for the counterparty, the latter shall be liable to De Heus without prejudice to the liability of the counterparty as if he himself were the counterparty.
Sheet 7
Art.20 Choice of law and forum.
Paragraph 1. Only Dutch law is applicable to the agreement. The Court of Dordrecht will take note of any disputes at first instance.
Paragraph 2. In the event that the other party is a consumer, it may still opt for the competent court according to the law for a month after De Heus has appealed to the latter under clause 1 in writing.
————————————————– —————-
These general terms and conditions have been drawn up by Veldhuijzen, Schep & Nuiten Advocaten in Oud-Beijerland. They expressly reserve all rights. Without the written consent of Veldhuijzen, Schep & Nuiten Advocaten is not permitted to take over provisions or parts thereof.