TERMS AND CONDITIONS OF SALE

Transcription

1 NATA Nederlandse vereniging van houtagenten Postadres : Postbus 1383, 1300 BJ Almere Bezoekadres : Westeinde 12, 1334 BK Almere-Buiten Telefoon : E-fax : KvK nummer : Website : secretaris@nata.nl TERMS AND CONDITIONS OF SALE 1. Definitions In these General Terms and Conditions of sale ( Terms ) the following definitions apply: Seller: [name of the company] Buyer: the other party of the Seller in an agreement referred to in these Terms; Agent: the sales agent who acts as the intermediary of the Seller and promotes the sale of the Seller s Products in the agreed territory. Week days: all calendar days except Saturday, Sunday and national public holidays; Days: all calendar days Product(s): all products to be delivered or delivered by Seller as described in the agreement between Seller and Buyer. Applicability and validity 1.1 These General Conditions shall exclusively apply to all offers and agreements under which Seller sells and delivers Products of any kind. 1.2 Seller has the right to modify and / or supplement these Terms. In the event of a material change Seller informs Buyer in writing at least one month before the relevant amendment or supplement becomes effective. Unless Buyer objects in writing within two weeks after the date of dispatch of the written notification, Buyer shall be deemed to have tacitly agreed to the change or addition. Any general purchase conditions or other conditions of Buyer shall only apply if expressly agreed in writing with the exclusion of these Terms to the contract between Seller and Buyer. 1.3 In the event of invalidity of any provision of the Terms the remaining provisions shall be enforced. 2. Conclusion of agreements 2.1 All outgoing offers, quotes, tenders, quotations and such by Seller are non-binding unless the contrary is explicitly mentioned in writing. Tenders expression includes any attachments such as price lists, brochures and other information. 2.2 The (sales) contract is concluded if an order is placed by Buyer (whether or not trough the intermediary service of the Agent), and this order is accepted by Seller. An order 1 / 6

2 shall be deemed accepted by Seller if Buyer is confirmed by Seller in writing. Any modifications to an order are only binding when accepted in writing by Seller. 3. Information provided by Seller 3.1 Design drawings, work and detail drawings, models, computer software, photographs, samples, designs, logos, specified dimensions, quantities, colors, materials, specifications and / or other information supplied by Seller to Buyer is only an approximate description. Only if it substantially differs from the abovementioned data, Buyer may dissolve the contract within 8 days after the date of delivery. 3.2 Seller shall not be liable in respect of the use by Buyer of data mentioned in article 4.1 unless expressly agreed otherwise in writing. 3.3 The information contained in article 4.1, or any rights thereto, do not become the property of Buyer. At the first request of Seller, Buyer shall return at his expense aforementioned information and advertising material to the Seller. 4. Quantity 4.1 The term about shall mean within 10% in proportion of the specification under or over the quantity specified or 15 cubic meters, whichever is less. 4.2 In case of dimension stock the term about shall mean 5% of the number of pieces in proportion of the specification under or over the quantity specified or 7 cubic meters, whichever is less. In the case of logs the term about shall mean within 10% of the quantity specified or 20 tons, whichever is less. For 20 tons can be read 20 cubic meters, 20 loads etc., depending on the unit used in the typewritten text of the contract. 5. Intellectual property Any brand, trademark, patent, design or copyright of the Products and / or data mentioned in Article 4.1 are not transferred to Buyer. Notwithstanding the foregoing, none of the cases mentioned in Article 4.1 may be disclosed or made available to third parties, whether or not for re-use, without the prior written consent of Seller. Data supplied by Buyer. 5.1 Design drawings, work and detail drawings, computer programs, models, photographic material, samples, designs, logos, specified dimensions, quantities, colors, materials, specifications and / or other information provided by Buyer to Seller assumed to be adequate, and any further investigation by Seller is not required. 5.2 Buyer shall indemnify Seller against all claims, in and out of court, of third parties, who argue that a trademark, patent, design, copyright, or any other rights of third parties, is infringed by the use thereof by Seller. If a third party objects the delivery by Seller, Seller is entitled to, without prejudice to the foregoing, suspend and / or immediately cease the delivery with the right to compensation for the costs and damages suffered by Seller to be paid by Buyer, without Seller to pay any compensation to Buyer's account. 6. Incoterms, delivery, shipment and risk 6.1 If not explicitly excluded the, at present valid, Incoterms of the International Chamber of Commerce are applicable. 6.2 Delivery is ex-factory unless otherwise agreed. 6.3 Notwithstanding article 8.2, if Seller takes care of the transport of the Products, transport will be shipment unless otherwise agreed. Shipment means placing the Products on board of an ocean going vessel at the port designated. a. Shipment shall be subject to freight space being available. b. Part shipment and transshipment shall be allowed. c. Should shipment not be made within the time stipulated in the contract, Buyer may give notice of their intention to cancel the contract in respect of all Products not shipped within 30 days of the receipt of such notice by Seller. d. Unless otherwise stated all Products shall be shipped under deck. 2 / 6

3 e. Shippers shall give prompt notice to the Agent of any shipment, stating the name of the vessel and the quantity loaded. 6.4 Buyer is obliged to accept any purchased Product from the moment of its delivery, or from the moment when it is placed at his disposal, under the terms of the agreement. 6.5 Should Buyer refuse to accept delivery, or neglect to furnish any information or instruction necessary thereof, the Product will be stored at Buyer s risk and Buyer shall be liable for any additional costs including, in any case, the costs for storage. 6.6 Seller may fulfill orders in installments, though this shall not apply where any Product thus delivered would have no separately identifiable value. In the event of such a partial delivery, Seller may invoice each delivered part separately. In such case, the present terms of payment apply to each partial invoice. 6.7 The risk of the Products passes to Buyer from the moment of delivery as mentioned in article Delivery time 7.1 The delivery times stated by Seller are always approximate and never inexorable time limits. Binding dates must be designated as such and confirmed by Seller in writing. 7.2 Should any stated time for delivery be exceeded, it shall be for Buyer to send user a formal notice to perform in writing and state a reasonable period for Seller of at least 15 workdays to fulfill with its obligations. 7.3 The delivery time stated by user shall not begin to run until Seller is in possession of all required information to be provided by Buyer, such as name, address, place of residence etc. 7.4 Exceeding the delivery time shall not oblige Seller to pay any compensation and Buyer does not have the right to terminate the agreement and/or suspend any obligations resulting from the agreement. 8. Prices, invoicing and payment 8.1 All prices agreed by Seller en Buyer are net amounts, in Euros and exclusive VAT, unless explicitly stated otherwise. Seller shall nevertheless be entitled to raise the price if able to demonstrate that between offer and delivery significant rises have taken place in costs of raw materials, currencies and /or wages or out of otherwise unforeseen circumstances. 8.2 Payment must be made within 30 days after the invoice date, unless explicitly stated otherwise, without prejudice to Seller's right to a deposit term at the conclusion of the contract. 8.3 Buyer is in default, without any notice of default being required, if he has not fully paid the agreed amount within the agreed period. In that case Buyer is due, from the date on which the amount became due until the date of payment, interest on the outstanding amount at the rate of statutory interest under article 6:119a of the Dutch Civil Code, without prejudice to the other rights of Seller. 8.4 If Buyer does not pay within the agreed period Seller shall furthermore be entitled to collect this amount in which event all related costs, which are set at at least ten percent of the claim, come for the account of Buyer. 8.5 Payments shall be applied in first instance to any outstanding interest or costs and in second instance to such unpaid invoices as have been outstanding longest, even if client specifies that the payment in question relates to a later invoice. 9. Insurance of the shipment 9.1 In case of C.I.F. conditions Marine Insurance including War Risks shall be effected by Seller with first class companies. The insurance shall cover the C.I.F. value of the Products plus 10% for Buyers benefit. 9.2 In case of F.O.B. conditions Buyer shall undertake to insure the Products as stated under article 11.1 or shall pay to Seller the sum which Seller would have recovered if they had insured the Products. 3 / 6

4 10. Duties Unless otherwise stated, export duty (if any) shall be paid by Seller and import duty (if any) shall be paid by Buyer. 11. Force Majeure 11.1 Force majeure is understood to mean any circumstance, including, but not limited to, ice, extreme weather, terrorist attacks, floods, legal restrictions, strikes, government measures, delays in supply, export prohibition, riots, war, mobilization, transport barrier, defects in machines, failure in the supply of energy, import barrier, fire and all other forms of force majeure which Seller, could not reasonably take into account and by which the normal performance of the contract cannot reasonably be required Seller shall give Buyer promptly notify in writing if there is a case of force majeure In case of force majeure, Buyer cannot claim any compensation If, as a result of force majeure, it is entirely or largely impossible for Seller to fulfill the obligations of the agreement or for the unfulfilled part of the agreement, and therefore delivery time exceeds more than two months, Seller shall be entitled to terminate the agreement, or to postpone the fulfillment of its obligations, without there being any obligation to pay damages to Buyer in any of the two cases If, as a situation of force majeure commences, Seller has already partly performed its obligations, or can only partly perform its obligations, it shall be entitled to separately invoice the part already delivered or the part which can be delivered and Buyer shall be obligated to pay this invoice as if it were a separate agreement. This shall not apply, however, if the part already delivered (or the part which can be delivered) does not have any independent value. 12. Retention of title and other securities 12.1 Subject to the conditions set out in this article, all Products at any time delivered by Seller shall stay Seller's property until full and final payment including interest and costs has been made by Buyer. Buyer is not entitled to pledge or in any way encumber the Products or transfer the possession thereof before full and final payment, except the sale under normal business transfers. In case of violation thereof Seller shall be entitled to collect all the Products delivered by Seller, without any authorization from Buyer or the court. Notwithstanding any claim of Seller regarding immediately payment of the amount due Buyer is obliged to retain property of Seller with due care and as recognizable property of Seller stored correctly and separately from other Products. The risk in respect of damage or loss of business and any associated consequential loss passes to Buyer upon delivery of the Products. Buyer is required to insure and keep insured the Products for the duration of the retention of title against fire, water, explosion and theft and to produce immediately upon request the policies of this insurance for inspection by Seller In the event Seller wants to exercise the rights set out in article 14.1 Buyer gives already now an unconditional and irrevocable permission to Seller or a third party appointed by Seller to enter all those places where the property of Seller can or will be situated and Seller may remove the Products of such property. Any resulting costs shall be borne by Buyer. 13. Suspension, termination and cancellation 13.1 If Buyer fails to comply any obligation of any agreement whatsoever against Seller, he has fallen or threatens to fall into receivership or a state of bankruptcy, he decides to liquidate his business, or Seller obtained information which indicates with reasonable certainty that Buyer may not be able to perform his obligations, Seller shall be entitled to suspend or terminate wholly or partly all then existing agreements without judicial intervention, without prejudice to the other legal rights of Seller in such a case If at any time after the signing of the contract there are signs that Buyer s solvency is in jeopardy, e.g. delay in or cessation of payment, application for the opening of 4 / 6

5 bankruptcy proceedings, transfer of the ownership of current assets as security on a dept, unfavorable information from banks, credit institutes or credit insurers, Seller is entitled to withdraw its services and, having sought unavailingly to recover surety in the form of directly enforceable bank guarantees, bank guarantees or advances within a specific deadline, to terminate the contract and/or claim compensation. No such deadline shall be required if it is evident that Buyer s solvency is in jeopardy 13.3 In the event of termination mutual claims will be due immediately Cancellation is only possible if Seller agrees to it in writing If Seller consents the cancellation, Buyer shall pay to Seller a fee of 50% of the price (including VAT) of the order unless the costs plus profit already incurred exceeding this amount, in which case the fee will be determined on the basis of the actual costs incurred plus profits Buyer is also required at all times to indemnify Seller against third party claims as a result of the cancellation of the agreement. 14. Right to claim 14.1 Buyer shall observe the rules concerning the manner of storage and handling of the Products delivered by Seller. Buyer checks the Products upon delivery or as soon as possible and to the extent reasonable Claims concerning deliveries must be made by Buyer in writing directly to Seller. In case of visible defects claims must be in the possession of Seller within 8 days after receipt of the Products, if Buyer only could reasonably discover the defect at a later time (hidden defects) claims must be in the possession of Seller within 8 days after discovery of the defect, but in any case within three months after delivery. The claim must be made by written detailed statement of the nature and grounds of complaints and submission of the delivery note and the invoice number If a claim is justified, Seller is (at its option) obliged to repair or replace the Products, if the redelivery or recovery occurs within a reasonable time after the merits of the complaint has been established. Buyer is in that case under no circumstances entitled to additional compensation If Buyer resorts to, or has resorted to, repair or other work with reference to the Products, without the prior written approval of user, all entitlement under guarantee lapses Returns relating to claims not preceded or accompanied by the data as set out in the last sentence of article 16.2 are not allowed. If Buyer nevertheless contrary to this regulation returns Products and they are not rejected by Seller, Seller shall hold these Products available to Buyer for the account and risk of Buyer, without any recognition of the correctness of any warranty claims. The cost related to unfounded returns shall be borne by Buyer. Under no circumstances can the buyer claim the right to refuse to accept the Goods, nor can the buyer suspend payment of the Goods. 15. Warranty and Liability 15.1 Communications by or on behalf of Seller relating to the quality, composition, application possibilities, properties and handling of Products delivered are only guaranteed if Seller expressly provide this guarantee in writing If the Products to be delivered in the Netherlands are to be used outside the Netherlands, Seller shall not be responsible for the ensuring that the Products to be delivered satisfy the technical requirements, standards and/or regulations imposed by the laws or regulations of the country where the Products have to be used. This shall not apply if it is stated at the time that the agreement is concluded, that the Products are to be used is a foreign country, and all the necessary information and specifications is provided by Buyer If Buyer during the warranty period repairs or alternates the Products without prior approval of Seller, the warranty will be void immediately. 5 / 6

6 15.4 In the event of late, incorrect or defective delivery or defective delivered Products and / or packaging, Seller can in no way be held liable for this damage, except where there is intent or gross negligence of Seller personally or management employees of Seller Seller shall only be liable if damage / injury is caused by intentional acts / omissions or by gross negligence on the part of Seller. Therefore Seller is never liable if damage is caused by its subordinates, or by persons or materials engaged or used by Buyer A claim by Buyer under this Article 17.4 expires one year after the date on which Buyer suffers damage or the damage inflicting has commenced Buyer shall indemnify Seller against all claims by third parties relating to Products delivered by Seller to Buyer and / or packaging, regardless of cause or time of occurrence Liability of Seller is limited to the amount to be paid by its insurer in any given case. If, in any given case where liability lies with Seller, the insurer offers no cover or makes no payment, the liability of Seller shall be limited to twice the invoice-value of that part of the transaction in respect of which it is liable. 16. Non-compliance and penalties 16.1 In case of non-compliance with any of the terms of these Terms by Buyer, Seller shall have the right of immediate re-sale of the Products for Buyers account after 7 days notice in writing, without any compensation for Buyer If buyer does not, not properly or timely fulfill any obligations under this contract, buyer is immediately due, without any notice of default being required and without any mitigation, an amount of 15% of the principal amount, with a minimum of 2,500.-, without prejudice to the other rights of Sellers. 17. Adaptation agreements Changes and additions to concluded agreements are only valid if expressly agreed in writing by Seller and Buyer. 18. Disputes and applicable law 18.1 All disputes relating to a contract or implementation of a contract between Buyer and Seller, which cannot be resolved by mutual agreement between the parties, will be exclusively submitted to the Dutch Arbitration Institute (Nederlands Arbitrage Instituut, NAI) In that case the appointment of the arbitrators and the settlement of the arbitration will take place in accordance with the official arbitration rules of - and in cooperation with - the Netherlands Timber Trade Association The agreements between Buyer and Seller are governed by the laws of the country the Seller is established, to the exclusion of the Vienna Sales Convention (CISG). 6 / 6