General Terms and Conditions of:
Burgemeester Posweg 120
NL-5306 GG BRAKEL
Registered at the Chamber of Commerce for Rivierenland under number: 11022142
CLAUSE 1: APPLICABILITY, DEFINITIONS
- These Terms and Conditions apply to any offer and to any contract of sale and purchase of Profiko Fineer B.V., established in Brakel, hereinafter to be referred to as “Profiko”.
- The other party shall be referred to as “the Buyer”.
- The possible invalidity of (any part of) a provision contained in these General Terms and Conditions shall not affect the validity of the remaining provisions.
- In the event of a discrepancy or conflict between these General Terms and Conditions and a translation hereof, the Dutch text shall prevail.
- These General Terms and Conditions shall also apply to future agreements.
- A lasting business relationship shall exist if Profiko has already handed these General Terms and Conditions several times to the Buyer. If this is the case, Profiko shall not be obliged to produce these General Terms and Conditions in order for them to apply to each new agreement.
CLAUSE 2: OFFERS, PROPOSALS, PRICES
- An offer or proposal without a validity term is without engagement. Profiko is entitled to withdraw such an offer or a proposal, within 2 working days after receipt of the acceptance at the latest.
- The prices stated in offers, proposals or price lists are ex-works and exclusive of BTW (Dutch VAT) and possible costs, such as transport costs, administrative costs, import or export levies and expense claims of third parties engaged.
- A composite offer or proposal does not oblige Profiko to deliver part of it against a corresponding part of the price.
- Samples that are displayed and/or provided, specifications of colours, dimensions, thicknesses, weights and other descriptions in brochures, promotional material and/or on Profiko’s website shall be as accurate as possible but shall only be intended as a guide. The Buyer may derive no rights from these.
- If (cost) price increasing circumstances occur at the expense of Profiko between the date of concluding the agreement and the execution thereof, due to legislation and regulations, government measures, currency fluctuations or price changes of the required materials and/or raw materials, Profiko shall have the right to increase the agreed prices and charge these to the Buyer.
CLAUSE 3: ESTABLISHING AGREEMENTS
- The agreement is established after the Buyer has accepted the offer of Profiko.
- Profiko shall only be bound to a) an order, b) oral agreements or c) additions to or changes of the General Terms and Conditions or agreement, after written confirmation to the Buyer or as soon as Profiko – without objection of the Buyer – has started the performance of the order or arrangements.
CLAUSE 4: DELIVERY, DELIVERY TERMS
- The Buyer must ensure that it shall make all information required for the execution of the agreement available to Profiko in time and in the manner required by it, and that the information is correct and complete.
- Agreed delivery terms are approximate only. If Profiko fails to meet its delivery obligations in full or on time, the Buyer must give notice of default to her and grant reasonable time to meet these delivery obligations at a later date.
- Profiko may deliver in phases, whereby each partial delivery may be invoiced separately.
- The risk concerning the items to be delivered shall pass to the Buyer at the time of delivery. This is the moment that the items to be delivered will leave the warehouse or the site of Profiko, or the moment that Profiko has informed the Buyer that it may collect the items.
- If required for the proper execution of the agreement according to Profiko, it shall be entitled to have certain deliveries made by third parties.
- Dispatch or transport of the items shall take place, unless otherwise agreed, at the expense of the Buyer but in a manner to be decided by Profiko.
- If it appears impossible, due to a cause within the risk area of the Buyer, to deliver the items ordered (in the agreed manner) to the Buyer, or if these items are not collected, Profiko shall have the right to store the items at the expense and risk of the Buyer. The Buyer should enable Profiko after giving notice of the storage, within a term to be fixed by Profiko, to deliver the items within the term fixed or collect the items within this term.
- If the Buyer still fails to meet its purchase obligation after the term referred to in the previous paragraph, it shall be immediately in default. Profiko shall then have the right to fully or partially terminate the agreement with immediate effect by a written statement. The aforesaid shall not affect the Buyer’s obligation to compensate any storage-, transport- and handling costs, lost profits, loss due to delay or any other damage or the right of Profiko to claim fulfilment at a later date.
- An agreed delivery term will not take effect until the moment that Profiko has received all information required for the delivery and the possible agreed (advance) payment of the Buyer. The costs in connection with the delay obtained and the other consequences arising from this shall be at the expense and risk of the Buyer.
CLAUSE 5: GUARANTEE, COMPLAINTS AND RETURNS
- Profiko shall ensure that the agreed deliveries are carried out appropriately and in accordance with the standards applicable in its sector, but shall never give further guarantee in respect of these deliveries than explicitly agreed between parties.
- Profiko shall be responsible for the usual quality and reliability of the items delivered.
- The Buyer is obliged to check the delivered items immediately after receipt and to state any visible failures, damage and/or deviations on the consignment note or on the accompanying note. In the absence of a consignment note or an accompanying note, the Buyer must report the failures, defects etc. within 2 working days after receipt of the items to Profiko, followed by a written confirmation thereof. In the absence of such a report, the items are deemed to have been received in good condition and to meet the agreement.
- Other complaints must be reported to Profiko in writing immediately after discovery – yet ultimately within 5 working days after receipt of the items. The Buyer shall bear all risks of failing to report directly
- If a complaint has not been lodged with Profiko immediately or within the terms referred to in the previous paragraphs, it is not possible to make a claim under a possible agreed guarantee.
- Complaints shall not suspend the Buyer’s’s payment obligations.
- The Buyer must give Profiko the opportunity to investigate the complaint and must provide all information to Profiko that is relevant for the complaint. If the items need to be returned for investigating the complaint, or if it is necessary for Profiko to investigate the complaint on site, the costs incurred shall be charged to the Buyer, unless the complaint appears well-founded. The transport risk will always be borne by the Buyer.
- In all cases, the full consignment delivered by Profiko shall have to be returned and returning the items shall take place in a manner to be determined by Profiko and in the original packaging.
- No complaints can be lodged in respect of deviations regarding specified sizes, weights, thicknesses, colours, etc. that are acceptable in the branch as minor.
- No complaints can be lodged about imperfections in or characteristics of natural materials, if these imperfections or characteristics are inherent to the nature of these materials.
- No complaints can be lodged about discolourations and small colour deviations.
- No complaints can be lodged about items that have changed after receipt by the Buyer in nature and/or composition or that have been fully or partially treated or processed.
- If the complaint is founded, Profiko shall – at its own discretion – take care of the replacement of the items free of charge or refund or reduce the agreed price. If there is any additional damage, the provisions set out in the Liability Article of these General Terms and Conditions shall apply.
CLAUSE 6: LIABILITY
- Profiko shall accept no liability other than the guarantees explicitly agreed or given by Profiko.
- Subject to the provisions of the previous paragraph, Profiko is only liable for direct damage. Any liability of Profiko for consequential damage such as trading losses, loss of earnings and/or losses sustained, damage caused by delay and/or personal or bodily injury shall be expressly excluded.
- The Buyer must take all measures needed to prevent or limit the damage.
- If Profiko is liable for the damage suffered by the Buyer, Profiko’s liability for compensation shall at all times be restricted to the maximum amount paid by the insurer where appropriate. If the insurer does not pay or if the damage is not covered by the insurance taken out by Profiko, Profiko’s liability for compensation shall be limited to the invoice amount of the delivered items.
- The Buyer must sue Profiko within 6 months at the latest after the damage it has suffered has become known to it or should have become known to it.
- Profiko is not liable and the Buyer cannot make a claim under a possible applicable guarantee, if the damage has arisen due to: improper use or safekeeping (storage) of the items, by errors in the information provided to Profiko by or on behalf of the Buyer or the choice made by the Buyer in respect of the items to be delivered.
- The Buyer is fully liable for all damage arising from this in all cases listed in the previous paragraph, and indemnifies Profiko explicitly against any claims from third parties to compensate this damage.
- The limitations of the liability stated in this article shall not apply if the damage is due to intent and/or recklessness by Profiko or its supervisory staff on a management level or if mandatory legal provisions oppose this. Only in these cases shall Profiko indemnify the Buyer against any third party claims.
CLAUSE 7: PAYMENT
- Profiko is always entitled to require (partial) advance payment or any other security for payment by the Buyer.
- Payment must take place net within an expiry period of 30 days after the invoice date, unless parties have agreed a different payment term in writing. The invoice shall be considered correct if the Buyer has not contested it within this payment term.
- If an invoice is not fully paid after expiry of the term referred to in the previous paragraph, the Buyer is due to Profiko a default interest of 2% per month, to be calculated cumulatively over the principal sum. Parts of a month are computed as a full month.
- If the Buyer still fails to pay after receiving notice, Profiko will furthermore have the right to charge the extrajudicial collection costs to the Buyer, amounting to 15% of the invoice sum, with a minimum of € 40.00.
- In the absence of full payment by the Buyer, Profiko shall have the right to terminate the agreement without further notice of default by a written statement or to suspend its obligations under the agreement until the Buyer has made full payment or provided appropriate security. Profiko shall also have the aforementioned right of suspension if it has legitimate grounds to doubt the Buyer’s creditworthiness even before the Buyer enters into default regarding payment.
- Payments made by the Buyer will first be deducted by Profiko from all interest and costs due and then from the due and payable invoices that have been outstanding longest, unless the Buyer has stated in writing on payment that it concerns a later invoice.
- The Buyer may not deduct any claims of Profiko from any reclamations that it has on Profiko. The aforesaid also applies if the Buyer applies for a (temporary) suspension of payment or is declared bankrupt.
CLAUSE 8: RETENTION OF TITLE
- Profiko shall retain title of all items delivered and to be delivered up until the point at which the Buyer has completely fulfilled all payment obligations towards Profiko.
- The payment obligations referred to in the previous paragraph consist of payment of the purchase price of the items, increased by claims relating to work performed in connection with that delivery, as well as claims relating to any damage due to the Buiyer’s attributable failure to meet its obligations, including payment of damages, extrajudicial collection costs, interest and possible penalties.
- If this refers to the delivery of identical, non-individualized items, the consignment of items relating to the oldest invoice shall be considered to have been sold first. Therefore, retention of title always remains with the items delivered that are still in stock, in the shop and/or form a part of the inventory and equipment of the Buyer on invoking retention of title.
- As long as the title is retained in the items delivered, the Buyer may not pledge the items in any manner.
- The Buyer must notify Profiko immediately if third parties pretend to have ownership or other rights to the items in which title is retained.
- The Buyer must safekeep the items carefully and as identifiable property of Profiko for as long as title is retained in them.
- The Buyer has to take out a business interruption or home contents insurance to ensure that the items delivered which are subject to retention of title are included in the policy and the Buyer will allow Profiko inspection on demand into the insurance policy and the accompanying proofs of premium payments.
- If the Buyer contravenes the provisions of this article or if Profiko claims retention of title, Profiko and its employees shall have the irrevocable right to enter the Buyer’s premises and take back the items subject to retention of title.
CLAUSE 9: BANKRUPTCY, LOSS OF POWER TO DISPOSE OF PROPERTY, ETC.
- Profiko always has the right to terminate the agreement without any notice of default by a written statement to the Buyer, at the time when the Buyer a) is declared bankrupt or files for bankruptcy; b) applies for (temporary) suspension of payment; c) is affected by enforceable seizure; d) is placed under guardianship or judicial supervision; e) otherwise loses the power to dispose of its property or loses legal capacity regarding all or part of its assets.
- The Buyer must always notify the guardian or administrator of the (contents of the) agreement and these General Terms and Conditions.
CLAUSE 10: FORCE MAJEURE
- In the event of force majeure on the part of the Buyer or Profiko, Profiko shall have the right to terminate the agreement by a written statement to the Buyer or to suspend the fulfillment of its obligations towards the Buyer for a reasonable term without being obliged to pay any compensation.
- Force majeure with respect to Profiko in the context of these General Terms and Conditions shall include: a non-culpable shortcoming by Profiko, a non-culpable shortcoming of third parties or suppliers engaged by Profiko or other serious grounds on the part of Profiko.
- Circumstances which are considered force majeure on the part of Profiko include: war, revolt, mobilization, riots at home and abroad, government measures, strikes within the company of Profiko and/or of the Buyer, or a threat of these and other circumstances, disruption of existing exchange rates at the time the agreement was concluded, operational failures due to fire, burglary, sabotage, power failure, internet or telephone failures, natural phenomena, (natural) disasters and suchlike, as well as transport problems and delivery problems arisen from weather conditions, roadblocks, accidents, and import and export hindering measures.
- If force majeure occurs when only part of the agreement has been executed, the Buyer shall in any case be obliged to fulfill its obligations towards Profiko until that moment.
CLAUSE 11: CANCELLATION
- If the Buyer wishes to cancel the agreement prior to or during the execution thereof, it shall be due all costs already incurred by Profiko and its damage suffered due to the cancellation, including lost profits. This compensation shall amount to at least 30% of the agreed price.
- The Buyer is liable towards third parties for the consequences of the cancellation and indemnifies Profiko against any claims from third parties arising from this.
- Profiko is entitled to settle the amounts paid by the Buyer with the compensation due by the Buyer.
CLAUSE 12: APPLICABLE LAW/JURISDICTION
- The agreement entered into between Profiko and the Buyer shall be governed exclusively by Dutch law.
- The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
- Any disputes shall be submitted to the competent court in the place where Profiko is established, although Profiko shall always retain the right to submit a dispute to the competent court in the place where the Buyer is established.
- If Buyer is established outside the Netherlands, Profiko shall have the right to choose to submit the dispute to the competent court in the country or the state where the Buyer is established and to possibly opt for local legislation.
Date: October 8, 2014