General Terms and Conditions of Sale and Delivery Danpoort International Abrasives B.V. (October 2011)
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter: “GTs”) apply to all offers and agreements under which Danpoort International Abrasives B.V. (hereinafter: “Danpoort”), supplies goods and/or provides services to its opposite contracting party, hereinafter: “Buyer”.
1.2 The GTs may be departed from only where and to the extent that Danpoort has expressly and in writing confirmed any such departure.
2.1 Every offer, price quotation and such like made by Danpoort is without obligation and expires if not accepted within 30 days.
2.2 Price lists, brochures and other information provided with an offer are as acurate as possible but are merely indicative.
3.1 A binding agreement with Danpoort is concluded when Danpoort confirms the order in writing within 8 days of receipt, or when Danpoort commences performance of the order.
3.2 Any supplementation to or amendment of the order is binding on Danpoort only if confirmed in writing by Danpoort.
3.3 Danpoort is entitled to increase or reduce agreed quantities by a maximum of 10% in connection with standard packaging or minimum quantities, and Buyer is obliged to accept and pay for the delivered quantities.
4.1 Unless otherwise agreed, quoted prices are exclusive of V.A.T. Danpoort shall be entitled to increase the price with the sum representing the increase in costs associated with the agreement occurring between the conclusion of the agreement and the day of delivery.
4.2 Any assembley or installation work is for the account of Buyer.
5. Delivery and risk
5.1 Delivery of any order with a net order value of less than EUR 500 exclusive of V.A.T. and delivery of any order outside The Netherlands shall be ex works. A surcharge for administration and transport costs shall be charged for such deliveries. Above a net order value of EUR 500 delivery of any order within The Netherlands shall be delivery carriage paid). The Incoterms 2010 are applicable.
5.2 Periods for delivery commence on the date of the conclusion of the agreement. Where prepayment or a deposit has been agreed, periods for delivery take effect upon receipt of full payment of the prepayment or deposit.
5.3 Danpoort is entitled to make part deliveries.
5.4 The dates for delivery and/or provision of services given by Danpoort are indicative. If Danpoort fails to perform the agreement in a timely manner Buyer must first serve notice of default in writing on Danpoort and state a reasonable period for performance.
5.5 Buyer has a duty to accept the goods. Where the goods have not been accepted by Buyer following the expiration of the period of delivery the goods shall be stored for the account and risk of Buyer. After four weeks Danpoort shall be entitled to sell the goods. Any diminution in proceeds thus arising and any costs shall be for the account of Buyer, without prejudice to any other rights of Danpoort.
The means of transport, shipment, packaging, etc., shall, in the absence of other directions issued by Buyer, be determined by Danpoort. Any specific wishes of Buyer relating to transport or shipment shall be complied with only where Buyer has stated that it will bear any extra costs arising.
7. Impossibility of performance
7.1 By impossibility of performance is to be understood: every circumstance beyond the influence of Danpoort, its suppliers and ancillary persons that occurs or every circumstance that temporarily or permanently prevents due performance of the obligations of Danpoort under an agreement, including but not restricted to the complete or partial default by a third party involving the supply of goods or services, shortage of materials, unfinished products, ancillary materials and/or energy or fuel, transport difficulties, fire and other calamities affecting Danpoort or its suppliers.
7.2. In the event of an impossibility of performance Danpoort has the right to suspend the performance of the affected agreement, or to terminate such agreement entirely or in part, without any judicial intervention and without itself being liable for any payment of damages.
8.1 Danpoort is only liable for loss suffered by Buyer as a result of attributable failure, unlawful act or otherwise, if the loss is directly and solely the consequence of the gross negligence or intention of Danpoort and/or its executive personnel. The obligations of Danpoort are restricted to, at the election of Danpoort, the rectification, without cost, of the deficiency, replacement of the defective goods and/or the fresh performance of the service supplied, or repayment of sums received from Buyer in respect of the defective performance, in which case the agreement shall be terminated in respect of the defective performance.
8.2 Where the loss suffered is due to an attributable failure, unlawful act or product liability of the manufacturer of the goods, the liability of Danpoort does not extend further than the sum that can be recovered from the manufacturer.
8.3 The liability of Danpoort is at all times restricted to a maximum of the net invoice value of the goods/services. In no case will the liability of Danpoort exceed the maximum sum that is paid out by Danpoort’s insurance. Danpoort is never liable for consequential loss suffered by. Buyer, including loss resulting from delay, and loss resulting from lost turnover or sales, or lost profit.
8.4 Claims against Danpoort in connection with agreements to which these GTs apply are subject to a period of limitation not exceeding one year.
9.1 Buyer shall immediately inspect the delivered goods and any packaging and invoices for any defects. Buyer shall note or have noted on the invoice and/or any transport documents, any defects immediately or within 7 days of receipt and notify Danpoort by return, failing which no complaint with respect to any such defect shall be considered.
9.2 A period not exceeding 3 months after delivery applies in respect of defects not apparent upon delivery provided such defects are notified to Danpoort within 7 days that any defect is discovered or should have been discovered.
9.3 Upon the expiration of the periods stipulated in this Clause Buyer shall be deemed to have approved the delivered goods or invoice and all relevant rights of Buyer to have lapsed.
9.4 Buyer shall retain the goods pending any enquiry, or, at Danpoort’s request, return the goods to Danpoort. The transport herewith shall be at Buyer’s risk. The costs of any enquiry, including any transport costs, shall be for the account of Buyer unless any failure attributable to Danpoort is established.
10. Retention of title
10.1 Danpoort retains the property in all goods delivered or to be delivered to Buyer until the price for these goods as well as for all services performed by Danpoort is paid in full and Buyer has fulfilled all other obligations owed to Danpoort.
10.2 If Buyer fails to fulfill its payment obligations or Danpoort has reasonable grounds to fear that Buyer shall fail to fulfill its obligations and is unable to furnish sufficient security, Danpoort shall be irrevocably authorized, without having to serve any notice of default, to retrieve all goods delivered under retention of title. Retrieval shall be without prejudice to any other rights of Danpoort relating to the Buyer’s failure to perform.
10.3 Where goods of the same type have in part been paid and in part not paid for by Buyer, invoices that have not been settled or not fully settled are deemed to relate to goods of that same type in the possession of Buyer. Where Danpoort so demands Buyer shall store the goods until the moment of payment in a manner that clearly demonstrates that they are the property of Danpoort.
11.1 Without prejudice to the right of Danpoort to make provision in the agreement for the payment of a deposit, payment shall be made upon delivery, or by payment to a bank account designated by Danpoort within 30 days of the invoice date, without set-off, deduction or suspension. Where Buyer provides Danpoort with a collection authorization, a period of 30 days shall apply.
11.2 Buyer shall be entitled to set-off only where the claim of Buyer is undisputed between the Parties or a final and conclusive judicial judgment has been given.
11.3 If Buyer fails to pay within the period stated above, the Buyer is automatically in default and from the due payment date is indebted to Danpoort for interest on the sum due. The interest payable is 1,5% per month.
11.4 All extrajudicial and legal costs relating to the sum owed by Buyer shall be for the account of Buyer, to be set at 5%.
11.5 Danpoort is entitled at any time to demand, before performance or further performance of its own obligations, the provision of security by the Buyer for the performance of the Buyer’s obligations.
12. Suspension and termination
12.1 Where Buyer is declared bankrupt or a bankruptcy petition regarding Buyer is filed with the District Court, or where Buyer petitions for suspension of payments or the same is granted to Buyer, or where Buyer is in default for more than two months with payment of an invoice or part of an invoice, Danpoort shall have the right to suspend performance of its obligations to Buyer or, without serving notice of default or any judicial intervention and without itself being liable for any payment of damages, to terminate the agreement entirely or in part by means of a written notification to Buyer, all without prejudice to the right of Danpoort to claim performance by and/or damages from Buyer.
12.2 Where one of the situations specified in clause 12.1 occurs in respect of Buyer, all claims of Danpoort against Buyer shall be due immediately and in full, without prejudice to the right of Danpoort to claim damages against Buyer.
13. Forum choice and applicable law
13.1 All disputes related to or arising under agreements between Danpoort and Buyer to which these GTs apply, are to be exclusively judged and settled by the Netherlands court in Dordrecht that has jurisdiction. Danpoort can bring a dispute, notwithstanding the preceding rule, before the court that has jurisdiction in the place where Buyer is established.
13.2 The law of The Netherlands applies exclusively to all offers and agreements to which these GTs apply, with exclusion of the Vienna Sales Convention.
13.3 Where the supplied goods are exported from The Netherlands the property law consequences of the retention of title are governed by the law of the State of destination. To the extent that it is permitted, the claims arising from the resale of the goods subject to a retention of property restriction are assigned to Danpoort.