Terms and Conditions

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

General

1.1. Seller means Graszoden- en Wormenkwekerij Berendsen (Chamber of Commerce file number: 61835595, legal form: Partnership, address: Luttekeveldweg 15, postal code and city: 7475 RX Markelo, VAT number: NL802390626B01) which is a party to the legal acts and agreements referred to in paragraph 2 as a supplier or seller. Buyer means the prospective buyer, prospective client and in general, the other party to the Seller’s legal acts and agreements referred to in paragraph 2.

1.2. These General Terms and Conditions of Sale and Delivery apply to all offers, quotations, price lists, agreements concluded and to be concluded and other (legal) acts of the Seller with regard to the sale and/or delivery of goods and/or services by the Seller.

1.3. Trade terms used in these General Terms and Conditions of Sale and Delivery, quotations, order confirmations or otherwise shall be interpreted in accordance with the most recent version of the Incoterms of the International Chamber of Commerce as in force at the time of entering into the agreement.

1.4. If a written provision in an agreement between the Buyer and the Seller is in conflict with a provision in these General Terms and Conditions of Sale and Delivery or with a provision of an applicable Incoterm, the written provision of the agreement shall prevail.

1.5. If these General Terms and Conditions of Sale and Delivery or the law stipulates the formal requirement that something must be in writing, this shall also include email messages.

1.6. Force majeure is understood to mean in these General Terms and Conditions of Sale and Delivery: any shortcoming that is caused by circumstances that are beyond the reasonable control of the failing party, including in any case shortcomings as a result of power outages, telecommunication disorders, cybercrime, fire, sanction legislation, import and export restrictions, strikes, machine breakdowns, and business disruptions in or shortcomings of suppliers and other third parties involved in the execution of the agreement.

1.7. The present Terms and Conditions also apply to all agreements with the Buyer for the execution of which third parties must be involved.

Agreement

2.1. Offers, quotations, price lists and other communications from the Seller about the goods and/or services are free of obligation.

2.2. In the event of a difference between the Buyer’s order and the Seller’s confirmation, only the Seller’s confirmation shall be binding.

2.3. Verbal promises, agreements, additions and amendments to an agreement concluded between the parties shall only bind the Seller insofar as they have been confirmed by the Seller in writing.

2.4. If, in the Seller’s reasonable opinion, the financial situation of the Buyer gives rise thereto, the Buyer will, at the Seller’s request, be obliged to immediately pay in advance or provide security for the amount owed to the Seller, whereby the Seller will be entitled to suspend the full or partial execution of the agreement in anticipation thereof.

2.5. If the Seller is unable to deliver on time due to force majeure, the applicable delivery period will be extended by the duration of the force majeure.

2.6. The Buyer is obliged to observe confidentiality with regard to all information of which they become aware with regard to the sale and/or delivery of goods and/or services by the Seller and of which can reasonably be expected to be confidential, including prices and commercial matters, and will only use this information for the execution of the agreement concerned.

2.7. The goods delivered by the Seller are deemed to comply with the agreement if they meet the specifications agreed in writing. Unless quality standards have been agreed in writing and agreements to the contrary have been made, the goods must exclusively comply with the requirements of EU product legislation as applied in the Netherlands. The Buyer cannot derive any rights from any images, descriptions and information about price, size, weight and qualities of the goods in price lists, on websites or in other general publications by the Seller or third parties. The Seller bears no responsibility for the delivered goods being suitable for any purpose for which the Buyer wishes to process, handle or use the goods (or have them processed, handled or used), unless the Seller has explicitly confirmed the suitability for that purpose to the Buyer in writing. Samples will only be provided by way of indication. Minor deviations that are customary in the sector or that cannot reasonably be avoided from a technical point of view and differences in quality, colour, size, weight or finish do not constitute a shortcoming.

2.8. The Buyer guarantees that (i) when trading the goods in any form whatsoever (including sale, lease, processing), they will comply with all applicable laws and/or regulations and more specifically respect all export control and sanction regulations of the EU and UN and that (ii) the goods are not directly or indirectly intended or can probably be intended for any country for which a sanction is in force for the goods in question pursuant to UN or EU regulations, unless the Buyer has obtained an exemption or permit for this from a competent authority designated by the UN or EU. The Buyer undertakes to include this guarantee as a perpetual clause (or have it included) in subsequent agreements for the trading of the goods.

2.9. The applicability of any purchase or other terms and conditions of the Buyer is expressly rejected.

2.10. If one or more of the provisions in these General Terms and Conditions are invalid or should be declared invalid, the other provisions of these General Terms and Conditions shall remain fully applicable. The Seller and Buyer will then enter into consultations in order to agree new provisions to replace the invalid or nullified provisions, in which case, if and as far as possible, the purpose and purport of the original provision will be taken into account.

2.11. The agreement between the Seller and the Buyer will be concluded in one of the following ways and times: either, if no order confirmation is sent, at the time when an offer made by the Seller is explicitly accepted by the Buyer verbally or in writing and unchanged; or, if an order confirmation is sent; and/or at the time when the Seller, at the Buyer’s request, has commenced the execution of the order. Each of the parties is nevertheless free to prove that the agreement was concluded in a different manner and/or at a different time.

2.12. If and insofar as required for the proper execution of the agreement, the Seller has the right to have certain work performed by third parties.

2.13. The Buyer will ensure that all information which the Seller indicates as necessary or which the Buyer should reasonably understand as necessary for the execution of the agreement, is provided to the Seller in good time. If the information required for the execution of the agreement is not provided to the Seller on time, the Seller has the right to suspend the execution of the agreement and/or to charge the Buyer at the usual rates for the additional costs arising from the delay.

Delivery time

3.1. The agreed delivery times and dates are always approximate.

3.2. If delivery cannot take place at the agreed time or within the agreed term, the Seller will be entitled to make partial deliveries and the Buyer will give the Seller a reasonable term for compliance by means of a notice of default.

3.3. Exceeding a final delivery time does not entitle the Buyer to compensation.

Complaints, liability and guarantee

4.1. Unless otherwise agreed, the Seller guarantees that the goods comply with the agreement for a period of 24 hours after delivery. This guarantee is without prejudice to the Seller’s right to invoke the other provisions of this Article 4 and force majeure

 

 

4.2. The Buyer must check the goods delivered immediately after delivery for any deviations from what has been agreed. Any shortages must be noted on the consignment note or delivery note. These shortages, as well as any other defects visible on delivery, must also be reported to the Seller in writing within 24 hours of delivery. The complaint letter must contain as detailed a description as possible of the complaint, so that the Seller is able to respond adequately. Non-visible defects must be reported in writing to the Seller by the Buyer within 24 hours after they have been discovered or should have been discovered.

4.3. If a defect has not been reported to the Seller within the applicable guarantee period or in accordance with paragraph 2, the Buyer no longer has the right to invoke that defect. The Buyer must keep the defective goods at the Seller’s disposal and give the Seller the opportunity to examine these goods. Submitting a complaint does not entitle the Buyer to suspend their payment obligation. Any legal actions of the Buyer must be taken within one year after timely notification of a complaint at the risk of forfeiting any right to compensation.

4.4. The Seller’s obligations in the event of defects in the goods and/or services delivered are limited to repair, redelivery or to crediting the invoice amount relating to the defective goods and/or services, at the Seller’s discretion.

4.5. If the Seller provides advice in connection with or about the use, properties or applicability of the goods, such advice will be given to the best of its knowledge. However, the Seller is not liable for the incorrectness and/or incompleteness of these recommendations. In the event of an error in an advice, the Seller will, at its discretion, only be obliged to provide a new advice or, insofar as invoiced separately, to credit the amount paid or to be paid for the advice concerned.

4.6. The Seller is not liable for any damage suffered by the Buyer, regardless of whether such damage is based on a shortcoming, an unlawful act or any other legal ground.

4.7. The Seller is not liable for shortcomings as a result of force majeure.

4.8.  In no event shall the Seller be liable for indirect damage, including loss of profit and turnover, installation and removal costs, loss of goodwill, compensation (including fines) owed to third parties and loss due to delay.

4.9. The Buyer’s right to invoke a defect in a good lapses if:

  1. the goods have been exposed to abnormal circumstances, or have not been handled in accordance with the instructions for use or otherwise carelessly or unprofessionally; and/or
  2. the goods have been stored longer than normal and it is likely that this has resulted in a loss of quality.

4.10. Insofar as the Seller cannot legally invoke paragraphs 4, 5, 6, 7 or 8 of this Article, the Seller’s liability shall be limited to (a) the amount that the Seller’s insurer pays out in this respect plus the Seller’s deductible under the relevant insurance policy or (b) in the absence of any payment by the insurer, to the amount received by the Seller for the good or service to which the liability relates.

4.11. Employees, directors, representatives, suppliers and agents engaged by the Seller shall also be entitled to invoke the limitations of liability in this Article 4.

4.12. The Buyer indemnifies the Seller against all claims by third parties for compensation of damage or otherwise, as well as against all costs incurred and to be incurred and damage suffered and to be suffered by the Seller in connection therewith, which directly or indirectly arise from or are connected with goods and/or services sold, delivered or to be delivered by the Seller to the Buyer, including any work or advice.

4.13 Nothing in these General Terms and Conditions of Sale and Delivery is intended to exclude or limit liability for damage caused by intent or gross negligence on the part of the Seller’s management.

Transport and delivery

5.1. If the goods are ready for acceptance by the Buyer and the Seller has informed the Buyer thereof, the Buyer is obliged to accept them immediately. Non-compliance with this obligation entitles the Seller either to store the goods or to keep them in storage at the Buyer’s risk and expense and to invoice the Buyer without it being possible to refuse payment on account of acceptance that has not yet taken place, without prejudice to the Seller’s other rights.

5.2. Insofar as the Buyer is obliged to load or unload the goods, they are obliged to do so immediately. The Buyer must provide all cooperation that can reasonably be expected from them in order to enable the Seller to deliver. In the event of non-compliance with this obligation, the provisions of paragraph 1 of this Article shall apply accordingly.

5.3. Delivery is from the factory, ex works (Incoterms) or from another production location if the product is not in stock at the Seller’s premises, the Seller may charge additional costs for this, unless expressly agreed otherwise.

5.4. Irrespective of the provisions of paragraph 1 of this Article, the Buyer and the Seller may agree that the Seller shall arrange for the transport. The risk of storage, loading, transport and unloading in that case shall be borne by the Buyer. The Buyer can insure themselves against these risks.

5.5. If there is a trade-in and the Buyer retains the item to be traded-in pending delivery of the new item, the risk of the item to be traded-in remains with the Buyer until the moment that they have placed it in the possession of the Seller. If the Buyer is unable to deliver the item to be traded-in in the condition in which it was when the agreement was concluded, the Seller may rescind the agreement.

5.6. If the provisions of paragraphs 1 and/or 2 of this Article are violated, the Buyer shall owe the Seller a penalty of EUR 250 per day with a maximum of EUR 25,000. This fine may be claimed in addition to complementary damages by virtue of the law.

Price and payment

6.1. The prices quoted by the Seller are based on any information provided with the request and exclusive of turnover tax and other levies and are based on delivery ex works.

6.2. If, after the date of an agreement but before delivery one or more cost price, factors undergo an increase – even if this occurs due to foreseeable circumstances – the Seller is entitled to increase the agreed price accordingly.

6.3. All payments must be made within 14 days of delivery, net in cash or by advance payment, and without the Buyer being entitled to any discount or set-off not expressly agreed. Deviating payment arrangements must be agreed in writing. The Buyer’s right to set off any claims it may have against the Seller or to suspend its obligations is expressly excluded.

6.4. The applicable payment term is a strict deadline. If this deadline is exceeded, the Buyer will be in default immediately. In the event that the Seller is of the opinion that the Buyer is in a bad financial situation or that the bankruptcy or suspension of payments of the Buyer has been filed or declared, the Buyer will immediately be in default and all claims against the Buyer will be immediately due and payable.

6.5. In the event of late payment, the Buyer will owe statutory commercial interest. If the Seller is required to take (extra) judicial measures in connection with late payment, including sending a single reminder, all resulting costs shall be borne by the Buyer, which shall be deemed to amount to at least 15% of the outstanding claim, with a minimum of EUR 150. These costs shall be calculated on the basis of the following table (principal sum including interest):

on the first                                              EUR 3,000.-             15%

any remaining amount up to                 EUR 6,000.-             10%

any remaining amount up to                 EUR 15,000.-           8%

any remaining amount up to                  EUR 60,000.-           5%

any remaining amount above                 EUR 60,000.-           3%

The actual extrajudicial costs incurred shall be due if they are higher than the result of the above calculation.

6.6. The Seller is entitled to suspend the delivery of goods if and as long as the Buyer does not, not fully, not properly or not on time, meet any obligation towards the Seller arising from an agreement.

Ownership and retention of title

7.1. All goods delivered shall remain the property of the Seller until the Buyer has paid all claims relating to the goods delivered or to be delivered by the Seller to the Buyer under the agreement or relating to work performed or to be performed for the Buyer by the Seller, as well as all claims due to failure to perform such agreements. Until that time, the Buyer is obliged to keep the goods delivered by the Seller separate from other goods and clearly identified as the Seller’s property and to insure them properly and keep them insured, as well as not to process the goods.

7.2. If the Buyer fails to fulfil any obligation under paragraph 1 of this Article towards the Seller, or if there is a well-founded fear that the Buyer will not fulfil the aforementioned obligations, the Seller shall be entitled, without notice of default being required, to immediately take possession of the delivered goods, wherever they may be. The costs thereof shall be borne by the Buyer.

7.3. As long as the above claims have not been paid, the Buyer is not entitled to alienate the goods in question or to establish a pledge or non-possessory pledge and/or encumber the goods in question in any other way.

Termination

8.1. In addition to its statutory rights, the Seller is entitled to terminate any agreement with the Buyer with immediate effect, without any judicial intervention being required, and without the Seller being obliged to pay any compensation for any damage whatsoever, if:

  1. the Buyer applies for a suspension of payment, files a petition for bankruptcy; or
  2. the Buyer has filed for bankruptcy; or
  3. the Buyer (as a natural person) dies or (as a legal person or company) is liquidated and/or dissolved; and/or
  4. the Seller reasonably suspects that the goods are destined, directly or indirectly, for any country for which a sanction is in force for the goods concerned pursuant to UN or EU regulations, without any exemption or licence having been obtained from a competent authority designated by the UN or EU.

8.2. Furthermore, only after the force majeure on the part of the Seller as referred to in Article 2 paragraph 5 has lasted more than three (3) months, both the Buyer or Seller can dissolve the agreement in writing and only for that part of the obligations that have not yet been fulfilled. In that case, the parties will not be entitled to compensation for the damage suffered or to be suffered as a result of the dissolution.

Disputes

9.1. All agreements and (legal) acts to which these General Terms and Conditions of Sale and Delivery apply shall be governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) is excluded, as is any existing or future international regulation on the sale of movable tangible property whose effect can be excluded by the parties.

9.2. All disputes in connection with the agreements and (legal) acts to which these General Terms and Conditions of Sale and Delivery apply, which may arise between the parties, shall be exclusively adjudicated by the competent court in the Netherlands within whose jurisdiction the Seller’s place of business is located, except that the Seller remains competent to submit a dispute to the court that would have been competent in the absence of this provision.

9.3. Insofar as these General Terms and Conditions of Sale and Delivery have also been drawn up in a language other than Dutch, the Dutch text shall always be decisive in the event of differences.