GENERAL SALES AND DELIVERY TERMS
1. APPLICABILITY
1.1. In the following, “the Supplier” is understood to be the company:
- Homey’s Tools for Life B.V., with its registered office in ‘s-Hertogenbosch at Sluisweg 196, 5237MZ, registered in the trade register of the Chamber of Commerce under number 82049807;
and all other entities that are at any time affiliated with one of the above mentioned companies, depending on the company being a party to the legal relationship with a Customer.
1.2. In the following, "the Customer" is understood to mean every natural or legal person who has concluded an agreement with the Supplier, or who is negotiating with the Supplier about the conclusion of an agreement, including the making of an offer by the Supplier.
1.3. The General Sales and Delivery Terms Homey’s Tools for Life B.V., hereinafter referred to as “the Terms and Conditions” apply to all legal relationships between the Supplier and the Customer where the Customer acts as a customer buying the Products from the Supplier and they form an unconditional part of the commitments between them.
1.4. Deviations from the Terms and Conditions shall only be effective if confirmed in writing by the management of Supplier.
1.5. In the event of conflict between the provisions of these Terms and Conditions and the provisions of the agreement concluded between the Customer and the Buyer, the provisions of the agreement shall prevail over the relevant provisions of these Terms and Conditions.
1.6. In the Terms and Conditions, goods are understood to be anything that can be the subject of contracts with due observance of the business activities of the Supplier.
1.7. If the Customer uses general terms and conditions and refers to them, their applicability is explicitly objected to.
1.8. Once the Customer has purchased the goods and/or services from the Supplier with the applicability of these Terms and Conditions, it is assumed that the Customer has also agreed to the applicability of these Terms and Conditions in any subsequent orders he may have placed verbally, by telephone, by e-mail or in any other way, or any agreements he may have concluded with the Supplier.
2. OFFERS
2.1. All offers, quotations, prices and conditions are made without obligation, and lapse after 30 (thirty) days. The Customer can never derive any rights from offers which have not been signed by a director of the Supplier or the head of the Supplier's sales department.
2.2. All drawings and information provided with an offer, such as sizes, weights and quantities, are compiled as accurately as possible. These specifications are only binding insofar as they are explicitly confirmed. Details do not need to be provided.
2.3. In offers made by the Supplier, the basic assumption is that all goods will be delivered in the usual manner and that all activities can be performed in the normal way.
2.4. Every offer and/or quotation is based on the information provided by the Customer. The Customer guarantees the correctness and completeness of this information.
2.5. The Supplier reserves the right to refuse assignments and/or orders without giving reasons.
3. AGREEMENT
3.1. With the exception of the provisions below, an agreement with the Supplier shall only be concluded after the Supplier (which shall be understood to mean only an authorised representative of the Supplier) has accepted or confirmed an order in writing or has started the execution of the order. The acceptance or confirmation is considered to be a correct and complete representation of the agreement.
3.2. Additional agreements or changes made at a later date as well as agreements with and/or forwarded by personnel of the Supplier are only binding on the Supplier if they have been confirmed in writing by an authorized representative of the Supplier.
3.3. If an amendment and/or addition as referred to in the previous paragraph is agreed upon, the amendment and/or additions shall only apply to the agreement concerned.
3.4. For deliveries and/or activities for which no offer or order confirmation is sent, the invoice shall also be considered an order confirmation, which shall also be deemed to reflect the agreement correctly and fully.
4. PRICES
4.1. Unless otherwise stated, the Supplier’s prices are:
- the price of the goods shall be based on the purchase prices, wages, labour costs, social security charges, taxes and other government charges, freight, insurance premiums and other costs applicable at the time of the offer or order;
- based on delivery "Ex Works";
- exclusive of VAT, import duties, other taxes, levies and duties;
- excluding the costs of packaging, loading and unloading, transport and transport insurance;
- are quoted in Euros, but any exchange rate changes will be passed on.
4.2. If, after an offer and/or quotation has been made, a change takes place in one or multiple factors determining the price, the Supplier shall be entitled to adjust the prices accordingly, even if the agreement has been concluded in the meantime.
4.3. Price changes of more than 15% compared to the original price entitle the Customer to dissolve the agreement (ontbinden, article 6:265 Dutch Civil Code), provided this is done in writing and within seven days of receiving the notification of the price change. Dissolution as referred to above shall not entitle the Buyer to compensation for any loss in any form whatsoever.
4.4. If work has also been agreed upon, the Supplier is entitled to charge, in addition to the agreed price, the costs related to demonstrable more or heavier work than the Supplier could reasonably have foreseen or to the fact that work had to be done at other than the usual hours or which are the result of a delay in the execution of the work through no fault of the Supplier.
5. DELIVERY TIME AND DELIVERY
5.1. Delivery time means the period mentioned in the agreement within which the goods shall be available to the Customer or, if work has been agreed, the period within which the work shall be performed.
5.2. The indication of delivery times shall always be approximate. The agreed delivery time is not to be regarded as a so-called fatal term, so that if this term is exceeded the Supplier shall not be in default by operation of law.
5.3. An agreed delivery time shall only commence after all necessary details are in the Supplier's possession and the payment, if and insofar as it has to be made when placing the order, whether or not by way of advance payment, has been made or the security demanded in accordance with the provisions of Article 9.4 has been provided.
5.4. The Supplier shall observe the specified delivery time as much as possible, but exceeding the specified delivery time does not oblige the Supplier to pay any damages and/or compensation due to the exceeding of the delivery time to the Customer and it does not give the Customer the right to cancel, terminate or dissolve the agreement or to refuse to purchase the goods.
5.5. Unless otherwise agreed, delivery shall be according to the most recent version of the Incoterms Ex Works (EXW) at Sluisweg 196, 5237 MZ, ‘s-Hertogenbosch.
5.6. Delivery in parts (partial deliveries) is permitted.
5.7. If the Customer for any reason whatsoever does not take delivery of the goods at the agreed delivery time, the Customer is in default without a notice of default being required. The Supplier is then entitled to store the goods or have them stored at the expense and risk of the Customer. If the Customer has not taken delivery of the goods within 2 (two) months, the Supplier shall have the option of selling the goods to a third party.
5.8. In such a particular case, the Customer is obliged to pay the costs of storage and preservation according to reasonable standards over the period from the expiry of the delivery time until the date of final acceptance by the Customer or until the moment that the goods are sold to a third party.
5.9. In the event that the goods are sold to a third party, the Customer shall remain liable by way of compensation for the purchase price, plus interest, less the net proceeds of the purchase price agreed with the third party.
5.8. Minor deviations of the delivered goods in size, colour, capacity, shape and packaging shall not constitute a reason for the Customer to dissolve, terminate or cancel the order wholly or partly, or to refuse full or partial payment or to claim damages.
6. LIABILITY
6.1. Except in the event of intent or gross negligence, the Supplier is not liable for damages both to the Customer and to third parties, as a result of or in connection with goods delivered and/or services provided, irrespective of the basis of that liability, with the proviso that, if the damage is covered by the Supplier’s liability insurance, liability for damages shall be limited to the actual amount paid out under such liability insurance in that specific case, plus the amount of the excess.
6.2.If Supplier is liable for any damage, but when for some reason the Supplier’s liability insurance does not provide cover in a specific matter, or if the loss concerned is not covered by any insurance, the Supplier’s liability shall be limited to the amount of the price of the delivered goods and/or the services rendered.
6.3. Notwithstanding article 10 of these Terms and Conditions, all claims for compensation brought against the Supplier, except those which have been acknowledged by the Supplier, as well as in the event of intent and/or deliberate recklessness, shall lapse by the mere expiry of 3 (three) months after the Customer has discovered or should have reasonably discovered the damage, and in any case upon expiry of a period of 1 (one) year after the goods have been delivered and/or the services have been rendered.
6.4. The Customer indemnifies the Supplier against any third-party claims due to damage occurred by the delivering of the goods and/or rendering of services.
6.5. Notwithstanding the above, any conditions limiting, excluding or establishing liability which third parties can invoke against the Supplier can also be invoked by the Supplier against the Customer. If and in so far as the Supplier has engaged third parties in the performance of an assignment, the Supplier shall not be entitled to enforce any rights against the Supplier other than those enforceable by the Supplier against the third-parties concerned.
6.2. By the mere acceptance of the goods by or on behalf of the Customer, the Supplier is indemnified against all possible claims from the Customer and/or third parties for payment of damages, regardless of whether the damage arose as a result of manufacturing and/or composition faults, or as a result of other causes, including errors made by personnel employed or made available by the Supplier.
6.3. The Supplier shall never be liable for damage caused by injudicious use of the goods delivered or by using them for a purpose other than for which they are suitable according to objective criteria.
6.4. Liability for loss of profits, indirect and/or consequential damages (however named) is excluded.
7. FORCE MAJEURE
7.1. The Supplier is not obliged to fulfill any obligation towards the Customer if the Seller is prevented and/or hindered from doing so as a result of a circumstance that is not due to any fault on its part and for which it cannot be held accountable by virtue of the law, a juristic act or generally accepted practice. During force majeure, performance of the agreement shall be suspended. If performance is suspended by more than three (3) months due to force majeure, the parties may make arrangements to dissolve (ontbinden, article 6:265 Dutch Civil Code) the agreement. In the event of force majeure, the Customer shall not be entitled to any compensation, nor shall he be entitled to any right, reimbursement or compensation on any account whatsoever, even if the Supplier should gain any advantage as a result of the force majeure. Contrary to article 6:271 Dutch Civil Code, no obligation to undo arises as a result of a dissolution the agreement. Dissolution shall only release the parties from their future obligations under the agreement.
7.2. In any case, force majeure on the part of the Supplier includes: war, threat of war, civil war, theft, riots, (work)strikes, factory occupation, severe weather circumstances, delay, (governmental) sanctions, flooding, molestation, fire, transport difficulties, unforeseen technical complications, non-performance by the Supplier's suppliers, price increases of materials or resources and/or services or other problems in the production by the Supplier or it’s suppliers, epidemics, pandemics, interference by government or regulatory bodies or measures by government agencies, and in general any cause beyond the Supplier’s control, foreseen or unforeseen, which hinders the Supplier’s execution of the agreement.
7.3. The Supplier is also entitled to invoke force majeure if the circumstance preventing or hindering (further) fulfillment of the agreement occurs after the Supplier should have fulfilled its obligation.
7.4. If the Supplier has already partially fulfilled its obligations arising from an agreement in a situation of force majeure, the Supplier is entitled to invoice the performance already carried out and the Customer is obliged to pay this invoice as if it concerned a separate transaction.
8. PROPERTY AND RETENTION OF TITLE
8.1. The title to the delivered goods and located at or under the control of the Customer, or under its holder, shall not pass to Customer and full legal and beneficial ownership of the goods shall remain with the Supplier until the Customer has paid the claims regarding renumeration – which include not only the purchase price, but also the claims the Supplier holds on it due to shortcoming in fulfilling the agreement, also including the Supplier’s claims on account of fines, interests and costs – for the goods delivered or to be delivered by the Supplier to the Customer pursuant to the order.
8.2. The Customer is obliged to constantly do everything which may reasonably be required to secure the property rights of the Supplier; if, and as soon as, the Customer fails to fulfil one or more of its obligations or acts in violation of what is stipulated, the Supplier will be entitled to recover the delivered goods, as intended in this article, without judicial intervention, as her property. The Customer pre-emptively grants its unconditional and irrevocable permission to the Supplier and to third parties indicated by the Supplier to enter all those areas where the property of the Supplier is located and to take back those goods, and the Customer will cooperate with this. All costs of recovery of the goods subject to retention of property will be borne by the Customer.8.3. As long as the Supplier's retention of title exists, the Customer is not entitled to encumber or alienate, neither by way of a lien (whether or not including possession) nor by encumbering it in any other matter. This alienation, pawning and encumbering prohibition has an emphatic effect at the level of property rights. It is therefore not possible to transfer the goods in property, nor to pawn them or to otherwise encumber them.
8.4. The Customer may sell the goods delivered subject to retention of title or the goods manufactured from them in the normal course of its business until revocation.
8.5. When the Customer has fulfilled all its payment obligations on account of the claims referred to in the preceding, the Supplier will grant the titles to the delivered goods, subject to a lien falling to the Supplier as an additional security for other claims which the Supplier has on the Customer. Upon first request, the Customer will give its cooperation for all actions which are required in this context.
8.6. In case of processing of goods delivered by the Supplier at the Customer's premises, the Supplier acquires, until the moment of payment of all that the Customer owes the Supplier, a co-ownership right in the newly created good(s) for the value of the goods originally delivered by the Supplier.
8.7. The Buyer shall store the goods that are subject to the Supplier's retention of title with the care of a good merchant free of charge for the Supplier and insure them against fire and burglary.
8.8. In the event of non-payment of an amount due and payable, including non-payment within the term as referred to in article 9, application for a suspension of payments, bankruptcy, application of the Dutch Natural Persons Debt Rescheduling Act, placement under guardianship, death or liquidation of the Customer's goods, the Supplier is entitled to reclaim and take possession of the goods without any notice of default being required. The Customer is obliged to return the goods to the Supplier immediately upon request; the costs of returning the goods are at the expense of the Customer. Furthermore, the Customer is obliged to give the Supplier the opportunity to collect the goods from the Customer upon the Supplier's first request and to give the Supplier access to the room or site where the goods are located; the costs of collecting the goods are at the expense of the Customer.
8.9. In the event of a petition for bankruptcy or a request for a (provisional) moratorium, or if conservatory measures are taken with regard to the Customer’s goods or if third parties wish to establish or assert rights in respect of these goods, the Customer is obliged to inform the Supplier without delay and to notify the bailiff levying the attachment, the administrator, the trustee in bankruptcy or third parties of the Supplier’s property rights.
8.10. During the operation of this retention of title, the Customer shall bear the liability for and the risk of the goods from the time they are made available to him. Without prejudice to the right of the Supplier to claim compensation for damages and/or loss in case the goods have been returned to the Supplier or are collected by the Supplier. In these circumstances every claim of the Supplier on the Customer shall be due immediately and in full.
9. PAYMENTS
9.1. At all times payments must be made without discount, suspension or set-off no later than the day before collection (in case of delivery EXW) or before shipment of the goods, unless otherwise agreed to in writing. These terms of payment are fatal terms. If payment is not made on time, the Customer shall be in default immediately.
9.2. In the event of failure to make timely payment, the Customer shall owe interest of 1.5% per month or part of a month on the outstanding amount, unless the statutory interest is higher, in which case the statutory commercial interest is due over the outstanding amount, calculated from the day on which payment should have been made until all outstanding amounts are paid in full.
9.3. Furthermore, in the event of late payment, the Customer shall be liable for all judicial and extrajudicial costs incurred to collect the amount due. In this connection, the extrajudicial collection costs to be paid by the Customer shall be set at 15% of the principal sum, with a minimum of € 500,- (excl. VAT). At the Supplier’s discretion, the Buyer may also be charged for the actual costs. The legal costs shall be set at the actual costs incurred by the Supplier.
9.4. The Supplier shall at its own discretion and at all times be entitled to demand advance payment before it will deliver the goods. At Supplier’s first request, the Customer shall provide adequate security for the performance of its obligations, at the Supplier’s discretion. In the absence of advance payment or the provision of security, the Seller shall be entitled to suspend the delivery of the goods or the execution of the order. The delivery period shall be extended by the period that the delivery is suspended
accordingly. In that case the Customer shall not be entitled to any compensation, damages or any right.
9.5. The Supplier has the right to set off claims from the Costumer against all counterclaims which the Supplier or one of its affiliated companies has on the Customer. The companies affiliated with the Supplier are also entitled to set off claims of the Customer against counterclaims which the Supplier has on the Customer.
10.WARRANTIES AND RECLAMES
10.1. Any warranty issued by the Supplier shall only come into effect if the Customer has fulfilled all its (payment) obligations towards the Supplier with regard to the relevant goods delivered and/or the services provided. Until then, the effective date of the warranty is suspended. Suspension of the commencing date of the warranty does not alter the final date of the warranty.
10.2. The Customer is obliged to check the goods and packaging delivered and/or the services provided by the Supplier immediately upon receipt.
10.3. In the event of visible defects relating to delivered goods or services provided, all complaints must be made known to the Supplier in writing, with an accurate description of the defects, within eight (8) days of this delivery. Delivery is also understood to mean the situation as referred to in Article 5(7), in which case the Customer cannot invoke excusable exceeding of the term.
10.4. In case of other defects, the Customer must submit a written complaint, stating the precise nature of the complaint, within 5 (five) workings days of after the defect became known or could have become known. After this period, the Customer can no longer appeal to the defect in question. Any claims for such defects shall lapse 1 (one) year after the Customer’s receipt of the goods.
10.5. Complaints reported in time by the Customer will be assessed by the Supplier. If the complaint is found to be well-founded by the Supplier, the Supplier is only obliged to repair or replace the faulty (parts of the) goods free of charge or to grant a price reduction, at the Supplier’s discretion. The Supplier will credit the counter value of the faulty goods in the event of a price reduction. The Supplier is in no way obliged to compensate more than the value of the goods qualified by the Supplier as faulty.
10.6. If the complaints turn out to be unfounded, the additional costs arising therefrom, including the costs of investigation incurred by the Supplier, will be borne in full by the Customer.
10.7. Complaints about invoices must, if they are handed over together with the goods, be made known to the Supplier immediately, under penalty of forfeiture of rights. If the invoices are sent, complaints about them must be lodged with the Supplier in writing within eight (8) days of the invoice date, under penalty of forfeiture of rights.
10.8. After the expiry of the terms referred to in paragraphs 3, 4 and 7 of this article, the Customer shall be deemed to have approved the goods delivered, or the services rendered, or the invoice, as appropriate. Complaints shall then no longer be considered.
10.9. Complaints will not entitle the Customer to suspend its payment obligations and set-off is expressly excluded. Complaints with regard to part of the order shall not entitle the Customer to reject or refuse the entire order.
10.10. By fulfilling one of the aforementioned performances, the Customer shall be fully discharged with regard to its warranty obligations and shall not be obliged to pay any further (damages) compensation.
11. SUSPENSION AND TERMINATION
11.1. Without any notice of default or judicial intervention being required, the Customer is in default and the Supplier is entitled to suspend its obligations and to terminate the agreement and any related agreement(s) in whole or in part with immediate effect, without prejudice to the Supplier’s other rights (including, but not limited to, the right of performance and/or compensation) and without the Supplier being liable to pay any damages, or any compensation or any obligation on any account whatsoever if (1) the Customer has failed to meet any of its obligations, (2) the Customer has applied for a suspension of payments or if its bankruptcy is imminent or has been petitioned for, (3) the Customer’s business is closed down or liquidated or otherwise dissolved/terminated or a decision has been made to that effect, (4) the Customer ceases or will cease all or part of its business or (5) suspension of payments has been imposed or will be imposed on the Customer.
11.2. If an event as referred to in the previous paragraph (11.1) occurs, all claims of the Supplier on the Customer shall be immediately due and payable in full.
12. INTELLECTUAL PROPERTY
12.1. Notwithstanding the Supplier’s written consent, the Customer is not permitted to make any changes to the goods delivered by the Supplier.
12.2. All drawings, illustrations, films, catalogues, folders, measures and weights as well as all other information provided by the Supplier to the Customer in the context of the agreement, remain the property of the Supplier, with explicit reservation of the copyrights and design and patent rights, also in the event that costs are charged. Except with the express prior written consent of the Supplier, the Customer may not copy or cause to be copied, alter or make these documents available for inspection by or to third parties.
13. APPLICABLE LAW
13.1. The parties’ rights and obligations arising out of or in connection with the quotations, offers, orders and/or the agreements resulting from it, shall be exclusively governed, construed, interpreted and enforced according to the laws of the Netherlands, without regard to the conflict of law’s provisions thereof.
14. DISPUTES
14.1. All disputes, including those considered as such by a party, arising from or related to the agreement to which these Terms and Conditions apply or concerning these Terms and Conditions themselves and its interpretation or implementation, both of a factual and legal nature, shall be settled by the competent District court Oost-Brabant, location ‘s-Hertogenbosch, the Netherlands, unless the Supplier decides to have the dispute settled by the Netherlands Arbitration Institute (NAI) in accordance with the NAI Arbitration Rules as laid down at the time when the arbitration is commenced, in which case:
a. the arbitral tribunal shall be composed of (i) one arbitrator in any dispute with a financial interest with a maximum of € 250.000,- (two hundred fifty thousand Euros) or (ii) three arbitrators in any dispute with a financial interest of more than € 250.000,- (two hundred fifty thousand Euros); and
b. the arbitral tribunal shall be appointed according to the list procedure; and
c. the place of arbitration shall be Amsterdam, the Netherlands; and
d. the arbitral tribunal shall decide in accordance with the rules of law; and
e. consolidation of the arbitral proceedings with other arbitral proceedings, as provided for in Article 1046 of the Dutch Code of Civil Procedure is excluded.
15. DIVERSE SUBJECTS
15.1. The original version of the Terms and Conditions is made in the Dutch language. In the event of any inconsistency or contradiction between the English version and any translation thereof, the English version shall prevail.
15.2. In the event that any provision of the Terms and Conditions shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity and enforceability of the remaining provisions between the parties and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be reformed to meet the legal and economic intent of the original provisions to the maximum extent permitted by law.
15.3. The Supplier shall be entitled at all times to unilaterally amend these Terms and Conditions. Amendments shall also apply to all agreements already concluded. Amendments shall take effect one month after publication by means of a written notification to the Customer including the amended General Terms and Conditions. If the Customer does not wish to accept the amendments, he is entitled to refuse these amendments by registered letter until the time they come into effect. If the Customer fails to do so, the Customer shall be deemed to have accepted the amendments after the time they take effect.