General conditions
General conditions
General Sales and Delivery Conditions of Bostik bv, having its registered and principal office in 's-Hertogenbosch at De Voerman no. 8 (5215 MH), The Netherlands.
1. DEFINITIONS
1.1 GC: these General Conditions.
1.2 Contract: every contract of purchase and sale or other type of contract which we make with a customer and all agreements and/or obligations ensuing therefrom or connected therewith
1.3 Offer: every offer which we make to a (potential) customer.
1.4 We/us: Bostik B.V..
1.5 Customer: everyone who makes a contract with us as referred to in Paragraph 1.2 or receives an offer from us as referred to in Paragraph 1.3.
1.6 Days: all calendar days.
1.7 Complaints: all complaints of the customer on quality or quantity of the goods delivered.
1.8 Special goods: goods which are not part of our standard delivery programme and which we make on instruction of the customer.
2. APPLICABILITY
2.1 These GC apply to all contracts which we make. Furthermore the GC apply to all offers we make.
2.2 Contracts with us and offers from us cannot be subject to other GC, such as those of the customer, regardless of the time of reference thereto, unless we have explicitly stated in writing vis-à-vis the customer that we agree to the applicability of such other general conditions. Such agreement shall never entail that the conditions of the customer also apply to other contracts between ourselves and the customer.
2.3 Provisions from these GC do not apply if and insofar as such is contrary to mandatory law provisions. If a provision is void or unenforceable on this ground, the provision most favourable to us shall remain in effect and all other provisions shall remain in full effect.
2.4 For the rest it is only possible to deviate from the GC by written agreement signed by both parties.
3. OFFER/MAKING OF THE CONTRACT
3.1 Our offers are without commitment. If a term is stipulated in the offer, such term shall only be binding on the customer. We can revoke our offer immediately after receipt of the acceptance.
3.2 Subject to the option of revocation set out in Paragraph 3.1 a contract shall be made when we have received acceptance from the customer which is presented in time, in writing and fully in accordance with the offer. Insofar as the customer accepts our offer with deviations of subordinate significance, these deviations shall not form part of the contract with us and a contract shall be made which is in accordance with our offer.
4. PRICES
4.1 Unless a binding price is agreed the prices in our price list in effect on the day of specification shall apply.
4.2 Our prices are exclusive of turnover tax and other taxes and levies.
4.3We have the right to pass on reasonable cost increases, insofar as they take place three months or longer after the making of the contract. We shall inform the customer in writing of such increases.
5. DELIVERY
5.1 Delivery shall be effected on our premises, ex factory, which means that as of the moment the goods leave our warehouse they are at the customer's risk.
5.2 If goods supplied by us cannot be transported to the destination due to circumstances attributable to the customer, we shall store the goods at the risk and expense of the customer.
5.3 The choice of the means of transport is at our discretion.
5.4 We have the right to deliver in instalments.
5.5 We have the right to deliver on condition of COD.
5.6 Unless we explicitly guarantee a specific delivery term in writing, time can never be deemed to be of the essence with regard to indicated delivery times. In the event of late delivery the customer must immediately give us written notice of default and grant us a reasonable term to perform our delivery obligations, without the customer or third parties being able to enforce any claim to compensation vis-à-vis ourselves. This paragraph does not apply if there is a shortcoming, whether or not of a permanent nature, which is beyond our control as referred to in Clause 6.
6. FORCE MAJEURE
6.1 In these GC force majeure means circumstances arising beyond our control and area of risk, which temporarily or permanently prevent us from performing our obligations. These circumstances in any event include: war, threat of war, riot, fire, production breakdown, strike, blockades, lock-outs, traffic disruptions, disruption in the delivery of the raw materials/semi-manufactured products, illness of personnel, non-performance or late performance of their obligations by sub-suppliers/contractors.
6.2 If due to permanent force majeure we are not able to perform our obligations, we have the right to dissolve the contract in whole or in part by written notice within a reasonable term without being bound to pay any compensation to the customer, nor compensation for any advantage enjoyed.
6.3 If due to temporary force majeure we are temporarily prevented from performing our obligations, we are entitled to suspend the performance of the contract for the term during which performance is prevented. Any security for payment given by or on behalf of the customer must be extended accordingly.
7. SECURITY
We are at all times entitled to demand security from the customer for the performance of his obligations. If the customer refuses or fails to give such security within the term fixed by us, we are entitled to dissolve the contract by written notice. Insofar as we have already delivered goods to the customer, the customer is obliged to return such goods within 5 days after the notice of dissolution. Furthermore he is obliged to compensate us for all damage which we suffer due to his refusal or failure.
8. PAYMENT
8.1 Payments must be made, without costs, and without any discount or set-off within 30 days after the invoice date unless the customer wishes to set off liquidated claims of the customer on us pursuant to his right to do so by law and he gives us written notice thereof within 7 days after the date of our invoice.
8.2 The payments must be made in the currency of the invoice at our office or on one of our bank or giro accounts.
8.3 Unless we indicate otherwise, payments shall always first be made to pay costs owing, then to pay interest and then to pay the outstanding invoices, with the longest outstanding invoices being paid first, even if the customer indicates that his payment relates to other invoices and/or debts.
8.4 If the customer does not pay in time he shall be in default without the need for notice of default and he shall owe us interest of 1.5% over the invoice amount for every month or part thereof by which the payment term of Paragraph 8.1 is exceeded.
8.5 If the customer is in default for longer than 15 days we have the right to take collection measures. Collection costs, both judicial and extrajudicial, are at the customer's expense. These costs, including the judicial costs, include all costs actually made by the user, including in the event they exceed the amount of a court order for costs.
8.6 If the customer defaults on any payment obligation with regard to us, he shall also be in default with regard to any other claims we have on him. Paragraphs 8.4 and 8.5 shall then apply accordingly.
8.7 Negligence on the part of the customer with regard to the purchase of goods or services or not giving us the opportunity to carry out the agreed work, shall not affect the customer's payment obligations.
9. RETENTION OF TITLE/PLEDGE
9.1 All goods which we deliver to the customer shall remain our property until the customer has paid all our claims under the heading of the contracts we have made with the customer with regard to these goods and the work carried out in this respect, increased by interest and costs and all our other claims in connection with his failure in the performance of the contracts.
9.2 If the customer forms a new item from goods delivered by us which are subject to a retention of title, when forming such new item he is acting on our instruction and he shall be holding the item on our behalf. He shall only become the owner at the time that the retention of title is cancelled because all our claims have been paid.
9.3 Insofar as we have any further claims on the customer than those referred to in Paragraph 9.1 and we have delivered goods to the customer which are not subject to any retention of title, the customer shall grant us a pledge in respect of such goods as security for the performance of his obligations and we hereby accept such pledge. Upon our first request the customer shall sign a deed granting the pledge. He shall guarantee that he is entitled to pledge the goods and that the goods are not subject to any pledge and/or qualified rights, aside from our rights.
9.4 The customer is entitled to resell or use the goods subject to retention of title or pledge in a normal manner in the normal course of his business.
9.5 If the customer resells the goods we can impose an obligation on the customer to grant us a pledge on the claim on the buyer ensuing from the sale.
9.6 The customer shall treat the goods referred to in this clause with due care. He shall insure the goods against all disasters on the basis of the invoice value. Upon our first request the customer shall furnish us with names and addresses of the insurers and copies of the policies. Furthermore, upon our first request the customer shall grant us, insofar as such has not already occurred by operation of law, a pledge on his claims in relation to the insurer.
9.7 Subject to the provisions of Paragraph 9.4 the customer may not pledge the goods referred to in this clause to third parties or in any other way give, transfer or limit the legal or de facto power of disposition in respect of such goods to our disadvantage.
10. QUALITY AND COMPLAINTS
10.1 During a period of a maximum of 6 months after delivery we guarantee the quality of the goods delivered by us and the materials used therefore, provided the goods are used in a normal careful manner in accordance with our instructions and for the purpose for which they have been made.
This guarantee does not apply if we supply goods of lower quality pursuant to an explicit agreement.
10.2 Immediately after delivery the customer shall count, measure, weigh and inspect the goods for visible and hidden defects which can be easily detected, before he stores or uses the goods. Once goods are taken into use they are deemed to be in accordance with the contract, unless the goods turn out to have a hidden defect which could not be easily detected.
10.3 Complaints relating to quantities, dimensions, weights, visible and hidden defects which can be easily detected must be lodged with us in writing, immediately insofar as the nature of the goods entails such and in other cases, within 14 days after delivery of the goods.
The last sentence of Paragraph 10.2 applies mutatis mutandis.
10.4 If within 6 months after delivery an item appears to have a hidden defect which could not be easily detected, a written complaint must be lodged within 14 days after the defect is detected.
10.5 The customer must accept the usual tolerance of 10% applicable within the industry with regard to quantities, dimensions and weights.
10.6 We are obliged vis-à-vis the customer to repair or replace the goods which do not meet the standard set out in Paragraph 10.1 or to reimburse the invoice amount, on condition that the customer inspects the goods thoroughly and in time and presents a complaint in accordance with Paragraphs 10.2, 10.3 and 10.4.
10.7 Goods can only be returned to us if we have agreed to such and to the method of return shipment in writing. The goods remain at the customer's risk.
11. LIABILITY
11.1 Subject to the provisions of Article 6:185 of the Civil Code and subject to intentional act by our company, we are not liable to the customer for any further-going damage than the repair or replacement or repayment of the invoice amount set out in Article 10 Paragraph 6.
11.2 In specific we are not liable for the direct or indirect damage, consequential damage, loss of profit, intangible damage, damage caused by agents, servants and/or subcontractors - even if such is due to their intent and/or gross negligence - and damage caused by the use of auxiliary materials, suffered by the customer or by third parties.
11.3 The customer indemnifies us against all claims of third parties for which we are not liable pursuant to the foregoing.
12. DISSOLUTION
12.1 If the customer does not perform the obligations which ensue for him from any contract made with us as referred to in these Conditions, or does not perform such properly or in time, we are entitled to dissolve the contract in whole or in part (and to demand repayment of the goods delivered by us, insofar as they have not yet been paid for) - without judicial intervention and without the need for notice of default - and/or demand payment for the part of the contract already performed and/or demand advance payment for each delivery.
12.2 Due to the dissolution all claims on both sides shall be immediately due. The customer is liable for all damage suffered and to be suffered by us in such case.
13. RIGHT OF SUSPENSION
We are at all times entitled to suspend the performance of one of our obligations to the customer if we, or a group company affiliated with us, have a claim, under any heading whatsoever and regardless of whether or not such claim is due, on the customer or a group company affiliated with the customer.
14. INFRINGEMENT OF RIGHTS OF THIRD PARTIES
Insofar as we produce goods pursuant to contract on the basis of instructions and drawings or with the help of moulds or forms of the customer, the customer guarantees that we are not infringing any intellectual property rights of third parties. Mere infringement gives us the right to give written notice of dissolution of the contract. The customer indemnifies us against all claims of third parties in connection with the infringement.
15. SPECIAL GOODS
15.1 The customer must inspect samples of the special goods within 14 days after we have sent them.
15.2 Unless explicitly otherwise agreed all models, moulds, samples, forms, drawings and all other equipment and instructions relating to the making of special goods, which have not been furnished to us by the customer, shall remain our property.
15.3 Costs of replacement, repair and maintenance of the moulds, insofar as made in the framework of the performance of the contract made with the customer are at the customer's expense.
15.4 Drawings, know how and designs which we have made available to the customer, may not be copied or made available for inspection by or disclosed to third parties without our written permission. They must be returned to us immediately after use. Due to the mere breach of this provision the customer shall forfeit in favour of ourselves an immediately payable penalty of € 50,000 per event and of € 5,000 for every day that the breach continues.
15.5 We are entitled to destroy the moulds, regardless of whether they are our property or the property of the customer, if they have not been used for 5 years. We shall give the customer written notice of our intention to destroy the moulds 3 months prior to the 5 year term.
16. APPLICABLE LAW
All contracts made with us or obligations ensuing therefrom are exclusively governed by Dutch law and are subject to Dutch international private law.
17. PLACE OF PERFORMANCE
The contracts are deemed to have been performed in our place of business.