General terms and conditions
General sales and delivery conditions of Smits Rolluiken en Zonwering B.V (Smits) established in Cuijk at de Hork 15, the Netherlands, as of 1 April 2015. Filed with the Chamber of Commerce under number 16054798.
1. General
1.1 Smits Rolluiken en Zonwering B.V. (Smits), also trading under the names Sunpoint and Triple F, is the user of these general terms and conditions and will hereinafter be referred to as ‘Smits’.
1.2 In these general conditions ‘Other Party’ shall be understood to mean any
1.2 In these General Conditions, ‘Other Party’ shall mean every (legal) person to whom Smits addresses its offers, and the person who gives an order to Smits or the person with whom Smits has a legal relationship, hereinafter to be referred to as ‘Other Party’.
2. Applicability
2.1 These general conditions shall apply to and form an inseparable part of all offers of Smits, of all agreements entered into with Smits, including purchase agreements, contracts of assignment, etc., as well as to all advice provided by Smits and to written or oral instructions, directions or information.
2.2 Deviations and additions to these General Conditions shall only bind Smits if agreed in writing by Smits.
2.3 General conditions and/or other conditions of the Other Party, are expressly rejected by Smits.
3. Offer
3.1 All offers and quotations (including attachments) of Smits shall be without obligation, unless they contain a written acceptance term, in which case the offer shall lapse after this term. The contents of catalogues, leaflets or printed materials shall not bind Smits unless expressly referred to by Smits in an offer or in the agreement.
3.2 All offers and agreements by and with Smits shall be based on performance of the agreement under normal circumstances.
4. Realisation
4.1 The agreement shall be concluded if an offer by Smits is accepted by the counterparty, unless Smits informs the counterparty within eight days of receipt of the acceptance that it no longer wishes to conclude an agreement, in which case Smits' offer shall be deemed to have been lawfully revoked.
4.2 If an irrevocable offer has been made by Smits as stated under 3.1, an agreement will be concluded if Smits' offer is accepted in writing by the counterparty within the term set by Smits.
4.3 If an acceptance by the counterparty deviates from the offer, this shall be deemed to be a new offer by the counterparty and a rejection of the original one, even if there is only a deviation on minor points, and the provisions under 4.4 shall apply to such an offer.
4.4 An agreement based on an offer by the counterparty shall only be concluded if it is accepted by Smits in writing.
4.5 If the agreement entered into by Smits with the counterparty is in whole or in part a contract for instructions, articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code shall be excluded.
5. Prices and Rates
5.1 Stated prices are net prices and are therefore - unless expressly stated otherwise - exclusive of turnover tax, import duties or other levies charged by the government or recognised institutions, and also exclusive of assembly and installation.
5.2 Stated prices and rates are based on the cost factors as they apply at the time the agreement is concluded.
5.3 Smits reserves the right to charge the other party a proportional price or rate increase if labour costs, government charges, social security contributions, taxes or levies undergo an increase after the agreement is entered into, or new ones arise, as well as in the event of changes to exchange rates, increases in inflation, price increases by Smits' suppliers and other changes to price-determining factors. Smits shall state these changes in its price and rate list in accordance with the provisions under 5.12 and 5.13.
5.4 That stated under 5.3 shall also apply if the changes in price-determining factors referred to there are the result of circumstances that could have been foreseen when the agreement was concluded.
5.5 If the application of articles 5.3 and 5.4 results in a price increase of 20% within a period of 3 months after the conclusion of the agreement, or more, the other party shall have the right to dissolve the agreement, provided that the other party informs Smits in writing within 10 days after Smits has informed it of a price increase that this right will be exercised.
5.6 Costs for loading, unloading, storage, transport of materials, models, tools or other items made available to the other party may be charged separately to the other party.
5.7 The costs of preparation for use, packaging, packaging, transport or shipment may be charged separately to the other party.
5.8 Smits may charge the other party for the costs of calculations, budgets, calculations and related activities for goods to be delivered, as well as the costs of drawings, designs, models, measurements, etc. made during the offer stage.
5.9 Stated prices are exclusive of transport, shipping costs and settlement, unless and insofar as agreed otherwise.
5.10 Unless otherwise agreed, the transport/shipment of goods purchased by the principal from Smits shall take place at the principal's risk.
5.11 Any return shipments must be delivered in sound packaging, unprocessed and undamaged, to an address to be determined by Smits. Return shipments, with the exception of returnable packaging, must be reported to Smits in advance and accepted by Smits.
5.12 Prices, rates and price or rate changes shall be stated by Smits in its catalogue price lists or changes thereto. Smits will send these to the counterparty. The latest catalogue, price/rate list issued and sent to regular relations will contain the applicable prices and rates, unless a written amendment to it has been provided or sent by Smits. In that case, the price or rate stated in the change will apply, while maintaining the unchanged prices and rates.
5.13 If a product, article, part or service is not listed in the catalogue or price list, the agreed price will apply, with Smits having the right to change it.
5.14 If the value of the agreement or order remains below the minimum order amount per order, Smits shall always be entitled to charge administration costs and/or freight costs or postage costs.
6. Delivery
6.1 Stated or agreed delivery times shall never be considered deadlines, unless expressly agreed otherwise.
6.2 The time of delivery shall be determined by Smits, taking into account what has been agreed in that respect. The other party is obliged to take receipt of the goods or parts thereof at the specified time of delivery. If the other party fails to fulfil this obligation, the goods will be deemed to have been delivered at the time determined by Smits and, without prejudice to its other rights under the law and the agreement, Smits will be entitled to store the goods or keep the goods stored at the expense and risk of the other party, without a notice of default being required, and to charge the costs to the other party without the other party being able to refuse payment due to the fact that acceptance did not take place, without prejudice to Smits' right to compensation.
6.3 If, at the request of the other party and with Smits' consent, delivery takes place at a later time than agreed, Smits shall be entitled to charge the other party for the costs incurred, including the costs related to planned forwarding and storage costs.
6.4 If delivery of ordered goods does not take place at the agreed time or within the agreed term, Smits shall - unless a firm term has been expressly agreed - be entitled to a subsequent delivery term that is considered reasonable in the industry, always with a minimum of 30 days. This term shall commence on the day of receipt of the written notice of default from the Other Party, but not earlier than the day after the end of the delivery time or delivery term agreed upon when the agreement was concluded. Smits shall always notify delays in delivery as soon as possible.
6.5 Delivery shall take place ex Smits' warehouse/business premises, unless agreed otherwise in writing.
6.6 From the moment the goods are ready for delivery, they shall be for the risk of the principal. Smits will ship the products to the delivery address stated by the principal. If this address is outside the Netherlands, the transport and packaging costs shall be agreed in more detail in each case.
6.7 All measurements, quantities and/or other information provided to Smits by the other party in connection with the performance of the agreement shall be for its account and risk.
6.8 Smits packages some materials in wooden and/or metal packaging. A deposit will be charged for these packagings. This deposit will be credited to you if the packaging is returned to us carriage paid in good condition within 6 months after the invoice date.
7. Force majeure
7.1 If force majeure delays or prevents the fulfilment of the agreement, both Smits and the other party shall be authorised to dissolve the agreement, without this giving the other party any right to compensation, except in so far as Smits would enjoy an advantage as a result of this dissolution, which it would not have had if the agreement had been properly fulfilled.
7.2 Force majeure on the part of Smits shall include any circumstance beyond Smits‘ control that permanently or temporarily prevents the fulfilment of its obligations, such as failure to receive the goods or services required for the fulfilment of Smits’ obligations from its suppliers, or failure to receive them on time, strikes, illness of irreplaceable employees or auxiliary personnel, or obstructive government measures.
8. Defects, complaint periods
8.1 The counterparty must inspect or have inspected the goods or services delivered or offered by Smits upon delivery or, if this is impossible, no later than eight working days after delivery. Within this period, the other party must check whether the delivered or performed goods or services correspond with the agreement.
8.2 The counterparty must report non-visible defects to Smits in writing within eight working days after the counterparty should reasonably have discovered these, also in view of 8.1.
8.3 Visible defects in the performance may no longer be invoked by the counterparty if no complaint is made within the period stated under 8.1.
8.4 Without prejudice to the provisions of article 8.2, a defect in Smits' performance can no longer be invoked if no complaint is made within one year of delivery.
8.5 Minor deviations customary in the industry or technically not detrimental and differences in quality, colour, size, quantity or finishing shall not constitute grounds for complaints.
9. Warranty
9.1 Without prejudice to the provisions in article 8 and with due observance of the provisions below under 9.2, Smits guarantees that for a period of one year after delivery, no defects will occur in the delivered goods as a result of manufacturing faults. If the guarantee takes effect, the provisions under 9.4 to 9.8 shall apply.
9.2 The guarantee as mentioned under 1 of this article does not apply if the defects are the result of normal wear and tear, incorrect operation or injudicious treatment (assembly, mounting or installation other than in accordance with the regulations, instructions and/or directions provided by Smits), misuse, negligence, accident, non-compliance with maintenance regulations and normal maintenance care, if the item has been repaired or altered without prior consent from Smits, or if the item has been assembled, installed and/or mounted in combination with other items not delivered by Smits without prior written consent from Smits.
9.3 The goods or parts will be entirely for the account and risk of the other party from the moment of delivery.
9.4. a. If the delivered goods do not comply with the agreement and Smits is liable in that respect, for which article 9.1. applies mutatis mutandis, Smits shall have the right, at its discretion, either to supplement or replace the delivered goods free of charge, or to reimburse the other party for the value of the defective goods in accordance with the agreed selling price.
b. If Smits opts for replacement or value compensation as referred to under a., AVZ will have the right to demand the return of the defective deliveries insofar as such return is (still) possible.
9.5 Only if Smits, after having been given notice of default in good time with due observance of the provisions of article 8, fails to comply with sub 9.4, shall the Other Party have the right to dissolve the Agreement in whole or in part and/or claim further damages as described in article 10. Article 10 shall apply accordingly.
9.6 a.If the damage is due to intent or gross negligence of Smits or one of its executive employees, the limitations as stated in article 9.5 shall not apply.
b.In a case as referred to in article 9.6a, the provisions of articles 10.2 to 10.5 shall apply.
9.7 Any further liability for damage caused by a defect in or a shortcoming of the goods delivered than follows from the provisions of Articles 9 and 10 is excluded.
9.8 If a defect falls under the guarantee pursuant to the provisions of article 9, then, if necessary, contrary to the provisions of article 9 and if the defect concerns a part obtained by Smits from a third party, it shall always be limited to the supplier's guarantee.
9.9 The provisions of article 9 do not apply to advice, instructions or directions provided by Smits. Smits shall not be liable, except in the event of intent or gross negligence of its executive staff, for advice and/or instructions provided by it.
10. Liability
10.1 Without prejudice to the provisions in article 10.6, Smits shall never be liable for damages, unless these are due to intent or gross negligence of Smits or one of its executive employees.
10.2 If Smits is liable for damages pursuant to a final and binding judgment and this damages is not due to intent or gross negligence on the part of Smits or one of its executive employees, Smits' liability shall always be limited to direct damages to goods or persons and shall never extend to any trading losses or other consequential damages, including loss of income or profit.
10.3 If Smits is liable for damage and this damage cannot be attributed to intent or gross negligence on the part of Smits or one of its executive employees, AVZ's liability shall furthermore be limited to that damage and to a maximum of the amounts for which Smits is insured, or for which Smits should reasonably have been insured, taking into account the prevailing industry practices.
10.4 Insofar as the provisions in article 10.3 cannot be a criterion for a limitation of Smits' liability (for example because Smits has not taken out any insurance and insurance is not customary either), the damages to be compensated by Smits will be mitigated if the price paid by the Other Party is small in relation to the extent of the damage suffered.
10.5 The provisions of articles 10.3 and 10.4 shall only apply insofar as Smits' liability under the law or agreement (including the provisions of the present general conditions such as, in particular, article 10) is not already limited further than would follow from the mere application of article 10.3 or article 10.4.
10.6 If Smits is liable by virtue of mandatory product liability, this liability shall never extend beyond the statutory or other mandatory liability provisions. Both the liability and the amount of the damage are limited to what Smits is compulsorily obliged to do. Anything more is expressly excluded, subject to the provisions in 10.1 to 10.6.
11. Retention of title
11.1 The goods delivered by Smits shall remain the property of Smits until the counterparty has fulfilled all following obligations from all agreements entered into with Smits.
- the consideration(s) regarding the delivered or to be delivered good(s) itself;
- the consideration(s) relating to services provided or to be provided by Smits under the agreement(s);
- any claims for non-fulfilment by the Other Party of one or more obligations towards AVZ under a contract, wrongful act or an ancillary obligation.
11.2 Goods delivered by Smits that are subject to retention of title pursuant to article 11.1 may only be resold in the context of normal business operations. The Other Party is not authorised to pledge the goods or to establish any other right to them. If the Other Party forms a new item from goods delivered by Smits which are subject to retention of title, the Other Party shall act on Smits' instructions when forming the new item and the Other Party shall hold the new item for Smits.
11.3 If the Other Party fails to fulfil its obligations, or if there is a well-founded fear that it will not do so, Smits shall be entitled to retain delivered goods to which the retention of title referred to in article 11.1 applies.
11.1 rests with the other party or third parties holding the goods for the other party.
11.4 If third parties wish to establish or enforce any right to the item delivered under retention of title, the other party shall be obliged to inform Smits as soon as may reasonably be expected.
11.5 The Other Party undertakes, upon Smits' first request:
- insure and keep insured the goods delivered under retention of title against fire, explosion and water damage and against theft, and to make the policy of this insurance available for inspection:
- to pledge all claims of the counterparty against insurers with regard to the goods delivered under retention of title to Smits by establishing a highly ranked pledge on these goods for Smits in the manner prescribed in Art. 3:238 of the Dutch Civil Code;
- to pledge to Smits the claims that the Other Party acquires vis-à-vis its buyers on the resale of the goods delivered by Smits under retention of title by establishing a highly ranked pledge on these in the manner prescribed in Art. 3:239 of the BW:
- to mark the goods delivered under retention of title as the property of Smits;
- to otherwise cooperate with all reasonable measures that Smits wishes to take to protect its title to the goods and which do not unreasonably hinder the other party in the normal conduct of its business.
12. Payment and security
12.1 Unless agreed otherwise in writing and with the exception of the provisions under 12.9, payment shall take place without any discount and/or deduction, which is not permitted by Smits, within 30 days after the invoice date by transfer to Smits' bank account, or, if agreed otherwise, in cash upon delivery. Smits shall always be entitled to set off all claims of the Other Party against Smits that have a monetary value against claims of Smits and companies directly or indirectly affiliated with Smits against the Other Party. If the Other Party is in any way part of a group of companies, the Buyer in the sense of this article shall include all companies belonging to that group in any way.
12.2 The term mentioned in 12.1 shall be regarded as a strict deadline.
12.3 In the event of non-payment within the term referred to under 12.1, the other party shall owe a contractual interest on the amount due equal to the statutory so-called European interest rate, determined by the European Central Bank.
12.4 Payments made by the other party shall always serve to settle all interest and costs due and subsequently due and payable invoices that have been outstanding the longest, even if the other party states that the payment relates to a later invoice.
12.5 Payment must be made in Euros. The date of payment shall be the day on which the bank credits Smits' credit balance or Smits has received the amount due in cash.
12.6 a. If a payment term has been agreed with regard to an amount to be paid to Smits by the counterparty, the amount owed to Smits by the counterparty shall nevertheless be immediately due and payable in the event of written notice of default, liquidation, insolvency, bankruptcy or suspension of payment of the counterparty.
b. The provisions under a. shall also apply if the counterparty is in default of any other obligation towards Smits.
12.7 If the counterparty is in default or fails to fulfil one or more of its obligations, Smits shall be entitled to charge all reasonable costs in accordance with the rate of the Netherlands Bar Association without further notice of default. If Smits proves to have incurred higher costs, which were reasonably necessary, these will also be eligible for compensation.
12.8 The counterparty shall be liable towards Smits for any legal costs incurred by Smits, including but not limited to the amount the counterparty is ordered to pay in any court judgement, insofar as these are reasonable. This shall only apply if Smits and the other party conduct legal proceedings with regard to an agreement to which these general conditions apply and a court decision becomes final and conclusive, whereby the other party is wholly or predominantly ruled against.
12.9 a. Smits is entitled to require part of the order amount and/or other amounts invoiced by Smits under the agreement to be paid in advance, or to require an adequate bank guarantee, before performing its part of the agreement;
b. The counterparty undertakes to provide security for the fulfilment of all its obligations under the agreement at Smits' first request and to its satisfaction, failing which Smits shall be entitled to suspend the fulfilment of its obligations. This provision shall also apply if credit has been stipulated.
12.10 Refusal by the counterparty to provide the required security shall entitle Smits to dissolve the agreement without judicial intervention.
13. Intellectual absolute rights/secrecy
13.1 Unless otherwise agreed with Smits in writing, Smits shall retain all intellectual absolute rights (including copyright, patent rights, trademark rights, database rights, drawings and models rights, etc.) to all its designs, drawings, models, writings, carriers with data or other information, offers, images, sketches, models, models, models, etc.
13.2 Smits retains the rights referred to under 13.1 and these rights may not be copied, shown and/or made available to third parties and/or used in any other way than that for which Smits has made them available to the counterparty without its written consent.
13.3 The counterparty undertakes to keep confidential any confidential information made available to it by Smits. Confidential information shall in any event be understood to mean that stated in sub. 13.1, as well as company and product information of Smits. The Other Party undertakes to impose a duty of confidentiality on its personnel and/or third parties involved in the performance of this agreement.
13.4 The models, drawings, calculations, images, texts or otherwise provided by Smits shall remain the property of Smits. The counterparty shall not use them for any other purpose than that for which they have been provided by Smits.
14. Applicable law and competent Court
14.1 All agreements between Smits and the Other Party shall be governed by Dutch law.
14.2 Disputes shall be brought before the competent Court of the place where Smits is established, to the exclusion of other courts.