GENERAL TERMS AND CONDITION FOR DELIVERY TO CONSUMERS OF:
Yesterdays VOF Pannenweg 260 6031RKNederweertThe Netherlands Chamber of commerce Number 13032230 February 21, 2005.
hereinafter to be referred to as: user
Article 1 Definitions
1. In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise. User: the user of the general terms and conditions; Consumer: an opposite party being a natural person, or a natural person who acts in the course of a business or in the course of a profession, or acts on behalf of a business. Agreement: the agreement between the user and the consumer; Consumer purchase: the agreement of sale concerning a movable thing concluded by a seller acting in the course of a profession or a business, and a consumer being a natural person, or a natural person who acts in the course of a profession or business or acts on behalf of a business.
Article 2 General
1. The present terms and conditions shall apply to each and every offer, tender and agreement between user and a consumer, to which user has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing.
2. The present terms and conditions shall also apply to agreements with user, the execution of which calls for the services of third parties.
3. Possible deviations from the present general terms and conditions shall only be valid provided they have been explicitly agreed upon in writing.
Article 3 Offers and Tenders
1. All offers and tenders shall be free of obligation and shall be made in one written form or other, unless user forgoes a written offer for practical, urgent or other reasons. The offer shall bear a date, or shall provide the possibility to be determined according to the date.
2. User shall only be bound by offers and tenders if the consumer accepts such, preferably in writing, within two days. The prices given in an offer shall include VAT, under the margin scheme unless indicated otherwise.
3. It shall not be possible to bind user to his offers and tenders if the consumer should have understood in accordance with the requirements of reasonableness and fairness and according to the usual criteria in social and economic life that the offer or tender, or part thereof, obviously contains a mistake or an error in writing.
4. If the acceptance deviates (on secondary items) from the offer given, user shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless user indicates otherwise.
5. A compound quotation shall not oblige user to deliver part of the goods contained in the offer or tender against a corresponding part of the given quotation.
6. Offers and tenders shall not apply automatically to repeat orders.
Article 4 Conclusion of the Agreement
1. The present agreement shall be concluded through the timely acceptance by the consumer of user's offer.
Article 5 Delivery
1. The consumer has the right and opportunity to inspect and verify the goods beforehand.
2. Unless agreed upon otherwise, delivery shall be made ex works/store/warehouse of user.
3. The consumer shall be held to take delivery of the purchased goods the moment said goods are at his disposal or handed over to him.
4. If the consumer refuses to take delivery of the purchased goods or fails to give the information or instructions necessary to their delivery, the goods destined for delivery shall be stored at the consumer's risk following notification of the consumer by user. In said event, the consumer shall owe all additional costs.
5. If the consumer and user agree upon service, the purchased goods shall be delivered at cost, unless user communicated the conditions laid down to the consumer the moment the agreement was concluded. In the event of delivery, user shall reserve the right to invoice the service charge separately.
6. If delivery in stages has been agreed upon, user can suspend the execution of the parts belonging to a following stage until the consumer has approved in writing the results of the stage prior to it.
7. If, in the framework of the execution of the agreement, user requires data to be given by the consumer, the term of delivery shall commence after the consumer has provided user with said data.
8. If user has given a term of delivery, it shall only be indicative. A given term of delivery shall therefore never constitute a term to be observed on penalty of forfeiture of rights. The final term of delivery shall, however, never exceed the given term of delivery by more than one week, unless there is a matter of force majeure. If the term of delivery is exceeded, the consumer must give user notice of default in writing.
Article 6 Guarantee
1. All goods are sold “as they are” at the moment of the effectuation of purchase agreement.
2. All goods are sold inclusive of their faults and defects, visible or not visible.
3. All goods are sold with or without their accompanying documents such as registration papers, test reports, dating certificates et cetera.
4. If any documents or written records come with the goods, no rights can be derived from these documents or written records as to correctness, originality et cetera.
5. All goods are sold as collectors’ items and as material witnesses of human activity that can serve to study past generations and industrial development. They should only at the buyer’s risk be used for their originally intended purposes.
6. Guarantee shall not apply when a defect originated as the result of injudicious or improper use or when the consumer or third parties have introduced changes or tried to introduce changes to the good without user's consent in writing or if they have used it for purposes for which the good was not suitable.
7. All that is stated in these general terms and conditions about guarantee, has no effect on the guarantees of the consumer by reason of the law, everything with due observance of the provisions set out in these general terms and conditions and in the agreement, including the nature and quality of which is sold and delivered to the consumer.
Article 7 Samples and Models
1. If user has shown or given the consumer a sample or model, the good shall correspond with it, unless the showing happened or the sample was given by way of indication.
Article 8 Retention of Title
1. User shall remain the full owner of the delivered good until the purchase price has been paid in full.
Article 9 Inspection & Complaints
1. Descriptions of the goods, be they oral, written or by electronic means should be verified as to correctness beforehand, as no rights can be derived from them.
Article 10 Transfer of Risk
1. The risk of loss of, or damage to the products being the subject of the agreement, shall be transferred to the consumer the moment said products are judicially and/or actually delivered to the consumer and therefore fall into the power of the consumer or of third parties to be appointed by the consumer or user.
Article 11 Price Increase
1. If user agrees upon a certain price with the consumer the moment the agreement is concluded, user shall nevertheless be entitled to increase the price, even in the event that the initial price was not given subject to approval.
2. If a price increase takes place within the first three months following the conclusion of the agreement, the consumer can dissolve the agreement with a written statement regardless the percentage with which the price was increased, unless - the increase is the result of a power given to the user by law - the user is obligated to increase the price by (virtue of) law. - it is stipulated that delivery will take place more than three months after parties have entered into the contract.
Article 12 Payment
1. Transfer of the goods is effected after full payment of the agreed purchase price inclusive of possible freight costs and all other costs related to the purchase.
2. Unless stated otherwise supply of the goods is subject to the margin scheme.
3. Cash payments in excess of 15.000 Euros or its equivalent in other currency should be accompanied by a personal identification document of the customer. All cash payments in excess of 15.000 Euros or its equivalent in other currency are reported to the MOT, the official “Unusual Transactions Authority” in the Netherlands.
Article 13 Suspension and Dissolution
1. User shall be authorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event that: - consumer does not fulfil or does not fully fulfil his obligations resulting from the agreement - after the agreement has been concluded, user learns of circumstances giving good ground to fear that the consumer will not fulfil his obligations. If good ground exists to fear that the consumer will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action. - consumer was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient.
2. User shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
3. If the agreement is dissolved, the user's claims against the consumer shall be forthwith due and payable. If user suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
4. User shall always retain the right to claim damages.
Article 14 Collection Charges
1. If the consumer fails to fulfil one or more of his obligations or defaults on one or more of them, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the consumer. If the consumer remains in default of payment within the set time period, he forfeits a immediately payable fine of 15% on the amount due at that moment. This with a minimum of € 50.
2. If user demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement.
3. The reasonable judicial and execution costs possibly incurred shall equally be borne by the consumer.
4. The consumer shall owe interest over the made collection charges.
Article 15 Safeguarding
1. The consumer shall safeguard user against claims filed by third parties concerning intellectual property rights on material or data provided by the consumer, which shall be used for and during the execution of the agreement.
Article 16 Intellectual Property and Copyrights
1. Without prejudice to the other stipulations of the present general terms and conditions, user shall reserve the rights and authorities to which user is entitled under the Copyright Act. The designs, sketches, drawings, films, software and other material or (electronic) files, possibly produced by the user within the framework of the agreement, shall remain user's property, irrespective of the fact whether they have been handed over to the consumer or to third parties, unless agreed upon otherwise in writing. All documents, such as designs, sketches, drawings, films, software, (electronic) files, etc., provided by user, shall be destined to be used by consumer exclusively and must not be reproduced, made public or brought to the notice of third parties by consumer without prior consent from user, unless the nature of the documents provided dictates otherwise. User shall reserve the right to use the knowledge gained due to the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties when doing so.
Article 17 Liability
1. If the goods delivered by user are defective, user's liability vis à vis the consumer shall be limited to the arrangements made in the present terms and conditions under "Guarantee".
2. User shall not be liable if damage is attributable to intentional act or omission and / or gross negligence and / or imputable actions, or to injudicious or improper use on the part of the consumer.
Article 18 Force Majeure
1. Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
2. In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which user cannot have any influence but which prevents user from fulfilling the obligations. Industrial action at user's company shall also be understood to be a circumstance of force majeure.
3. User shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which user should have fulfilled his obligation.
4. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
5. Insofar user has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, user shall be entitled to separately invoice the part already fulfilled or still to be fulfilled respectively. The consumer shall be held to pay this invoice as if it were a separate agreement.
Article 19 Disputes
1. The Court in user's place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. User shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
2. Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations.
Article 20 Applicable Law
1. Dutch law shall apply to each and every agreement between user and the consumer.
Article 21 Changes to the Terms and Conditions, interpretation and their location
1. The present terms and conditions have been filed at the office of the Chamber of Commerce in Limburg Noord ( Venlo )
2. The Dutch version of these general terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.
3. The most recently filed version shall always apply, or, the case ensuing, the version valid at the time the agreement was concluded.