GENERAL TERMS AND CONDITIONS OF SALE AND SUPPLY
OTK Stainless Steel 2019
1. General provisions
4. Prices and Payment
4.1 The prices offered by the supplier are excluding turnover tax and other duties and are based in the data provided with the application and are based on delivery “ex works” if not refered otherwise .
4.2 Every payment must take place within thirty days after the delivery in net cash or by advance payment. The purchaser does not have any right to reduction or setoff unless this is expressly agreed. Derogating payment ar- rangements must be agreed in writing. The right of the purchaser to setoff any claims against the supplier or to suspend any obligations is expressly excluded.
4.3 The applicable payment term is a final period and in the event of exceeding thereof the purchaser will be in de- fault with immediate effect. In the situation of a petition for bankruptcy or an application for moratorium of the purchaser, or as the case may be this has been granted, the purchaser will be in default with immediate effect and all the claims against the purchaser will be immediately due and payable. If and for as long as the purchaser does not, does not entirely, does not properly, or does not fulfil any obligation ensuing from an agreement towards the supplier in a timely manner the supplier will be entitled to suspend the delivery of goods.
4.4 The purchaser will owe the commercial interest in the event of late payment. If the supplier must take (extrajudi- cial) judicial measures related to late payment, including sending one single demand letter, all costs ensuing the- refrom will be at the expense of the purchaser, which will be deemed to amount to at least 15% of the outstanding claim with a minimum of 150 Euro.
5. Liability and guarantee
5.1 The goods delivered by the supplier must comply with the specifications that have been agreed in writing. Ex- cept for quality standards that are agreed in writing and other arrangements the goods must exclusively comply with the requirements of EU product legislation as ap- plies in the Netherlands. The purchaser cannot derive any rights from any images, descriptions and information about prices, dimensions, weight and quality of the goods in price lists, on websites, or in other general publications of the supplier or third parties. The supplier will not be responsible for the suitability of the goods for any pur- pose for which the purchaser wants to use, process or modify the goods, unless the supplier has expressly con- firmed the suitability for that purpose in writing to the purchaser. Minor derogations and differences in the quali- ty, colour, dimensions, weight or finish that are usual in the sector or that are technically unavoidable, will not result in any shortcoming. Samples are only provided for indica- tive purposes.
5.2 The supplier guarantees that the goods will comply with the agreement during a period of 12 months after the delivery unless agreed otherwise. This guarantee will not affect reliance by the supplier on the other provisions of article 5 and on force majeure.
5.3 The purchaser must immediately after the delivery in- spect the delivered goods for any derogation from that which has been agreed. Any shortfall must be noted on the consignment note or delivery document. These short- falls as well as any other defects that are visible on delive- ry must be reported in writing to the supplier within ten working days after the delivery. Invisible defects must be reported in writing by the purchaser to the supplier within ten working days after the purchaser has discovered the- se or ought to have discovered these.
5.4 In the event of defects of the delivered goods or services the obligations of the supplier will be limited to repair, redelivery, or as the case may be - at the discretion of the supplier - crediting of the invoice amount related to the defective goods or service.
5.5 The purchaser can no longer rely on a defect if the defect has not been reported to the supplier within the applica- ble guarantee period or in conformity with the provisions regarding this matter. The purchaser can also no longer rely on a defect of an item if the goods have not been tre- ated in conformity with the instructions for use, or other- wise in a careless or incompetent manner, or have been exposed to abnormal circumstances, or if the goods have been stored for longer than usual as a result of which loss of quality can occur.
5.6 The purchaser must keep defective goods available for the supplier and must provide the supplier with the op- portunity to inspect these goods. Submitting a complaint will not give the purchaser any right to suspension of the payment obligation of the purchaser. Any cause of acti- ons on the part of the purchaser must be made pending, at the risk of forfeiting, one year after reporting the com- plaint in a timely manner.
5.7 The supplier will not be liable for the inaccuracy or incom- pleteness of advice provided to the purchaser. In addition the supplier will not be liable for damage suffered by the purchaser as a result of a shortcoming, an unlawful act, or on another legal basis. Under no circumstances will the supplier be liable for consequential damage, also inclu- ding lost profit and turnover, transport costs, installation and removal costs, loss of goodwill, compensation and financial penalties owed to third parties and loss due to delay. The supplier will also not be liable for shortcomings resulting from force majeure as described in these Terms and Conditions.
5.8 In the event that limitation of liability as set out in this article does not accrue to the supplier by law the liabi- lity of the supplier will be limited to the amount that the insurer of the supplier pays in the case concerned plus the amount of the deductible which is not borne by the insurer under the policy conditions under the applicable insurance policy and is therefore payable by the supplier. In the absence of any payment by the insurer the liability of the supplier will be limited to the amount that has been received by the supplier for the item or service relating to the liability.
5.9 Any reliance on the limitation of liability of this article also accrues to the employees, directors, representatives, sub- contractors and auxiliary persons engaged by the sup- plier.
5.10 The purchaser indemnifies the supplier against all claims by third parties for compensation of damage, as well as against all costs and damage ensuing therefrom for the supplier, which ensue directly or indirectly from the goods or services sold by the supplier to the purchaser, including any work or advice.
5.11 The supplier does not have the intention to exclude or limit with any provision of these Terms and Conditions liability for damage caused by intention or wilful reck- lessness on the part of the management of the supplier.
6. Retention of title
6.1 All delivered goods remain the property of the supplier until the time when the purchaser has fulfilled all pay- ment obligations as consideration for the goods on the basis of all agreements concluded with the supplier, as well as all claims due to failure in the performance of such agreements. Until that time the purchaser will be obliged to keep the goods delivered by the supplier separate from other goods and to clearly mark these goods as the property of the supplier and to properly insure and keep insured these goods, as well as to refrain from proceeding with processing or modification of the goods.
6.2. If the purchaser does not fulfil any obligation under this article, or if there is well-founded fear in existence that the purchaser will not fulfil the aforesaid obligations, the supplier will be entitled without the requirement of notice of default, to immediately take possession of the delive- red goods wherever these might be situated. The costs thereof will be at the expense of the purchaser.
6.3 The purchaser will not be entitled to dispose of the goods delivered subject to retention of title, or as the case may be to establish a (nonpossessory) right of pledge on the goods concerned, or to otherwise encumber these goods, for as long as the aforesaid claims have not been settled.
7.1 The supplier will be entitled to terminate every agree- ment with the purchaser with immediate effect, without judicial intervention, and without the supplier being liable for any damage whatsoever, if the purchaser applies for moratorium, if the purchaser submits a petition for his/ her own bankruptcy, or a petition for bankruptcy order for the purchaser is submitted; or as the case may be if the purchaser (as a natural person) dies, or the purchaser (as a legal entity or enterprise) is liquidated or dissolved.
7.2 The purchaser as well as the supplier can only terminate the agreement in writing after the force majeure on the part of the supplier, as referred to in article 2 subclause 3, has lasted for more than three months, and indeed ex- clusively for that part of the obligations that have not yet been fulfilled. In that event parties will not have any right to compensation of damage resulting from the terminati- on.
8.1 The law of the Netherlands applies to all agreements and all (legal) acts that these Terms and Conditions apply to. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vien- na Sales Convention) is excluded as well as any existing or future international arrangement concerning movable tangible property the effect of which can be excluded by parties.
8.2 All disputes related to the agreements and the (legal) acts that these Terms and Conditions apply to, which have arisen between parties, will be exclusively adjudicated by the court with competent jurisdiction in the Nether- lands of the Oost-Brabant district. However, the supplier remains always entitled to submit a dispute to the court that would have had jurisdiction in the absence of this provision.
8.3 In the event of differences between the translated ver- sions of these Terms and Conditions the Dutch text will always prevail.