Conditions for sale and delivery
Fifteenth edition
Article 1. APPLICABILITY
Unless expressly agreed otherwise, these conditions shall apply to all offers, contracts of purchase and sale and deliveries of all goods and services marketed and/or provided by the seller. The purchaser shall accept the applicability of these conditions through the mere fact of placing an order. The seller does not accept any general or specific purchasing conditions used by the purchaser, which shall therefore not apply to the offers, agreements and supplies governed by these conditions unless expressly declared applicable in writing to any specific transaction by the seller (and, if the seller is a legal person, by one of its Managing Directors). Such acceptance of the applicability of any such purchasing conditions shall on no account entail the present or future applicability of those purchasing condtitions to other transactions between the purchaser and the seller.
If and insofar as an offer and/or agreement between the purchaser and the seller is subject to conditions that deviate from the present conditions and the applicability of the present conditions is not expressly excluded, the other provisions of these conditions shall remain in full force.
Article 2. QUOTATIONS, ADVICE AND ORDERS
All quotations shall be submitted free of obligations, on the understanding, however, that the seller shall be bound by the net prices listed in its written quotations for a period of fourteen days from the day the relevant quotation was sent. All prices quoted are net prices, without discounts and exclusive of any and all taxes due upon delivery. Orders placed without a price having been expressly agreed shall be executed at the price applicable at the time of execution, irrespective of any previously issued quotations or earlier price calculations. All supplied volumes are subject to a quantity margin of 10%, to the effect that the purchaser shall be obliged to accept and pay for a 10% surplus or shortfall of the agreed volume, to a minimum of 1 kg or 1 litre, as the case may be. To the extent that it is not bound to the relevant quotation, the seller shall be free to reject an order. In such a case, the seller must notify the purchaser accordingly within five working days from the date the order was received.
Article 3. DELIVERIES
The seller shall be deemed to have fulfilled its delivery obligations once it has offered the goods to the purchaser at the agreed time. If the purchaser refuses to accept the goods, the report drawn up by the party that has arranged the shipment shall constitute full proof of the goods having been offered for delivery, in which case the costs of the return shipment, storage and any other necessary expenses incurred shall be for the purchaser's account. The offer for delivery shall equal delivery. If acceptance is refused, the seller shall store the goods for up to thirty days after they were offered for delivery and shall inform the purchaser in writing that it may collect the goods, or arrange for them to be collected, upon cash payment. After the end of this term, the seller shall be authorised to sell the goods to a third party or to dispose of them in any other way it sees fit.
If, in the case of delivery on call, no term has been agreed the formal term of delivery shall be four months from the day the sales contract came into effect. After expiry of that term or of the agreed term for delivery on call, the seller shall have the right to claim payment of the goods sold on call, without regard to any credit term.
Article 4. DELAYED DELIVERIES
Delayed deliveries, provided that the delay does not exceed a reasonable period, shall not entitle either party to any damages or to dissolution of the agreement.
If the parties, in their agreement, nevertheless stipulated that delivery shall be made at a specific time and the purchaser has informed the seller in writing that that term should on no account be exceeded, the purchaser shall be authorised, should the agreed term expire without delivery having been effected, to dissolve the sales agreement without judicial intervention, without prejudice to its right to claim damages in the case of force majeure on the seller's part. The purchaser is obliged to notify the seller accordingly with immediate effect in writing. Agreed dates shall be considered target dates, unless expressly agreed otherwise.
Article 5. FORCE MAJEURE
Force majeure shall be defined as any circumstance beyond the seller's control at the time the agreement was entered into and as a result of which the purchaser cannot reasonably demand normal execution of the agreement. Such circumstances may include war or threat of war (irrespective of whether the Netherlands is involved, directly or indirectly), partial or full mobilisation, martial law, uproar, sabotage, flooding, fire or other types of destruction in factories and warehouses and exclusions, including suppliers or manufacturers who - on whatever grounds - fail in the fulfillment of their obligations vis-a-vis the seller either partly or in full.
In the event of force majeure the seller shall have the right to dissolve the agreement, without being bound to pay damages.
Article 6. ADVANCE PAYMENT/SECURITY
At all times the seller shall have the right to demand advance payment or security from the purchaser before supplying goods or effecting follow-up supplies. If the purchaser fails to make the advance payment or to furnish the requested security, any obligation of the seller to deliver shall be cancelled without prejudice to the seller's right to claim compensation from the purchaser for any and all damage, costs and interest payments incurred.
Article 7. RETENTION OF TITLE
All delivered goods shall remain the exclusive property of the seller up to the moment the seller has granted the purchaser full discharge for any claims by the seller against the purchaser in respect of the present delivery or previous deliveries.
The goods may be immediately reclaimed by the seller if the purchaser has failed in the fulfillment of its obligations or if the seller has reason to believe that such will be the case. The costs incurred in connection with the return of the goods shall be charged to the purchaser. If goods are returned, the purchaser shall be credited for an amount that equals the value of the goods upon their return.
The retention of title stipulated in this article shall not prejudice the fact that the risk associated with the use and storage of the delivered goods, in the broadest sense, shall pass to the purchaser from the moment delivery is made.
Article 8. PACKAGING
Packaging materials shall only entitle either party to a refund of the calculated value if they are returned in mint condition within six months after the invoice date, free warehouse, and only if they had originally been charged. If packaging materials are rejected, the purchaser shall be informed accordingly in writing within thirty days of receipt of the materials concerned, after which term such materials shall be held at the latter's disposal for one week. After the end of that week, the seller shall be free to dispose of the packaging materials without being obliged to provide any form of compensation. The seller shall not accept any returned packaging materials that were not specified on the invoice nor included in the invoice amount.
Article 9. INTELLECTUAL PROPERTY RIGHTS
The seller shall retain the right to provide the goods with its own name and industrial trademark. The purchaser acknowledges that the intellectual property rights (copyrights, patent rights, trademark rights, trade name rights, etc.) related to the goods purchased from the seller and/or associated with items made available by the seller such as infomation sheets, advertising materials etc., rest with the seller and/or any of the companies of the group of which the seller forms part.
The purchaser shall respect those rights and undertakes to behave accordingly as instructed by the seller.
Insofar as the purchaser becomes aware of any violation by third parties of the intellectual property rights as referred to in this article, it shall undertake to inform the seller accordingly immediately.
The purchaser shall not be allowed to use any of the seller's brands or distinguishing marks as (part of) an Internet domain name or alphanumerical telephone number.
The purchaser shall grant the seller permission to include all (sales-related) information from the purchaser in a database and to use such information. All rights associated with that database shall rest exclusively with the seller.
Article 10. GRIEVANCE
1. Grievances of whatever nature shall not suspend the purchaser's obligation to pay and can only be brought to the seller's attention within the terms stated in this section.
2. Grievances shall not be admissible if the purchaser has processed or supplied the goods concerned while it could have discovered the alleged defect by means of a simple inspection procedure. Grievances concerning technically unavoidable deviations in colour and properties shall not be taken up.
3. Grievances concerning faults, erroneous composition, weight, numbers, packaging and the calculated price can only be lodged within fourteen days after delivery of the goods concerned.
4. Grievances concerning the quality of delivered goods can only be lodged within fourteen days after the purchaser discovered the faultiness of those goods, and on no account later than six months after their delivery. If the packaging states a shorter shelf-life term, any grievances must be reported before the end of that shorter term.
5. The purchaser shall only be able to demonstrate the faultiness of delivered paint products, to the exclusion of any other means of evidence, by submitting a report issued by the relevant TNO department, on the understanding that the costs of that report shall be borne by the party found to be at fault. Other products are not subject to a specific and binding evidence scheme.
6. The purchaser shall be allowed to demonstrate the faultiness of delivered printing ink by any means, on the understanding that faultiness in this regard shall be defined as failure to meet the specifications applicable at the seller with respect to the product(s) in question.
7. The seller's obligation to pay damages in connection with the faultiness of delivered goods, documentation, processing and other advice, guidance and inspections, shall not exceed an amount equal to 3½ x the invoice amount of the delivered items whose faultiness has been proven. The seller shall on no account be held liable for any consequential damage, howsoever named and howsoever incurred.
8. The burden of proof that the goods to which the grievance relates are the same as those that were supplied by the seller shall rest with the purchaser.
Article 11. PAYMENT
1. Save for any stipulations to the contrary, the purchaser shall be obliged to pay the invoices within thirty days from the invoice date, without deducting any discount. Settlement with any claims against the seller is hereby expressly excluded.
2. Any interest charged on late payments included in the invoice amount shall be deemed to form part of the invoice amount and can only be deducted if the remainder of the invoice is paid within thirty days after the invoice date.
3. If the purchaser fails to pay the invoice amount due in time, it shall owe the seller interest in the amount of 1¼ % of the invoice amount for each and every month, or part thereof, that has expired since the payment deadline.
If, at any moment, the statutory interest pursuant to Section 6:119 a. of the Dutch Civl Code exceeds the interest owed under the interest clause included in this Article 11.3, the seller shall be authorised to claim the interest pursuant to Section 6:119 a. of the Dutch Civil Code, which interest shall be calculated in the manner indicated in the relevant Section.
4. Payments shall only be valid if effected in the manner indicated by the seller.
The seller shall be free to set off any received payment against outstanding costs, interest due and the oldest outstanding invoices, even if the purchaser indicated that a particular payment relates to a specific invoice or if it is clear from the amount transferred that the purchaser intended to pay a specific invoice.
5. If the purchaser is in default due to the expiry of the payment term, the seller shall have the right to claim payment of the amount owed at law, without any further demand for payment being required.
The seller shall have the right to dissolve all agreements it has concluded with the purchaser if and when the purchaser fails in the fulfillment of any of its obligations under an agreement with the seller, is granted suspension of payments or is declared bankrupt.
6. In addition to the amount due, the seller shall be authorised to claim from the purchaser any and all costs incurred as a result of the latter's non-payment, including judicial and extrajudicial collection costs.
7. Extrajudicial collection costs shall be owed by the purchaser in each and every case for which the seller has engaged third-party collection services. Such costs shall equal 12 % of the total amount claimed, being the invoice amount increased by the accrued interest pursuant to paragraph 3 of this article, to a minimum of € 11.50. If the purchaser pays the principal amount plus the accrued interest and extrajudicial collection costs within fourteen days after having received a written demand for payment from the third party instructed by the seller to collect the amount due, the extrajudicial collection costs shall be deemed to equal 5 % of the amount due, being the invoice amount increased by the accrued interest pursuant to paragraph 3 of this article, to a minimum of € 11.50.
8. The seller shall not be obliged to demonstrate that it has in effect incurred extrajudicial collection costs. If the seller files the petition for the purchaser's bankruptcy, the latter shall owe the costs of the bankruptcy petition in addition to the original amount due plus the associated judicial and/or extrajudicial collection costs.
Article 12. DISPUTES
Save cases in which the parties have submitted their disputes to arbitration, any and all disputes (including interlocutory proceedings and permission of attachment) that might arise between the parties in connection with these Uniform Conditions for Sale and Delivery or any further agreements, shall be adjudicated exclusively by the court in the district where the seller has its registered office, insofar as the dispute falls within the jurisdiction of that court and no different court has been declared competent to hear the case under the rules of mandatory law.
All disputes shall be settled in accordance with the laws of the Netherlands.
