GENERAL CONDITIONS of Delcom International b.v., Dussendijk 14, 4271XL Dussen, Netherland, deposited by the Chamber of Commerce to Tilburg.
Article 1: Relevance
- These conditions apply to all offers and all agreements between Delcom Productions ltd., below named supplier, and a buyer/client, as far as specifically not has been deviated by all parties.
- Relevance from the through buyer/client called upon general conditions is specifically rejected.
- When an offer or agreement on any point deviates from the present conditions, then these conditions remain applicable for the other issues.
Article 2: Offers
- All offers, among which are included prospectuses, price lists and grants, are valid for a period of at utmost fourteen days and completely without obligation, unless otherwise has been indicated.
- The offers have been based on the through buyer/client provided data, drawings, technical descriptions and such, of the correctness of which Suppliers may emanate.
- The in the offer mentioned prices are only related to those deliveries and/or activities, which have specifically been described in the offer, and are exclusive VAT and other taxes and excises, unless otherwise has been indicated.
- Supplier stipulates to herself, unless otherwise has been agreed, the copyrights as well as all remaining intellectual and industrial property rights on all by her provided designs, sketches, drawings, images, models, software programmes etc. These remain her property and may not been copied, shown to third parties, or been used in any other manner, without her explicit permission
Article 3: Designs, advices and materials
- All by Supplier provided information and advices are only of a general nature and are without engagements, unless otherwise has been agreed.
- No liability is accepted and no responsibility is kept by Supplier for flaws of the delivered equipment according to a by or on behalf of buyer/client made design or for information or advices as a result of such a design.
- Supplier accepts neither liability for the functional suitability or quality of materials which are used by her on desire or on indication of buyer/client. Under functional capability is understood the capability of the material or of the component for the target for which it has been meant according to the design of the buyer/client.
- All damage that result from a by or on the order of buyer/client made design or from on the desire or indication of these used materials, including any damage that is suffered by Supplier himself, must be carried by buyer/client.
Article 4: Models and examples When by Supplier a model or example has been shown or supplied, this is expected only to be shown or supplied as a manner of indication: the qualities of the to be delivered goods can deviate from the model or example, unless specifically had been mentioned that delivery would have been taken place according to the shown or supplied model or example.
Article 5: Technical requirements etc. When the in the Netherlands to be delivered goods must be used outside the Netherlands, Supplier is only responsible for the fact that the to be delivered goods meet the technical requirements or standards that are put by the laws or provisions of the country where the goods must be used if this has been reported by the buyer/client at the closing of the buy or at the giving of the assignment for the use of it in the foreign country. Also all other technical requirements that have been put at the to be delivered goods by the buyer/client and that do deviate from the normal requirements have to be reported at the concluding of the buying agreement or at the submittance of the order by buyer/client.
Article 6: Realization agreements
- Agreements will be realized at first by written affirmation by the management of Supplier or by an employee of the Supplier to whom authorisation has been granted or by the actual execution of the order and under the suspending condition that sufficient creditability of buyer/client is proven according to the by Supplier enquired information. Supplier has been entitled to request to buyer/client that he/she puts sufficient security for the compliance of its obligations and has been entitled to suspend the execution of the agreement till her request has been satisfied.
- Buyer/client is bounded to the by him or on behalf of him given order and is obliged to compensate any damage evolved by cancelling or change of the order, including made expenses, loss of profit, loss of interest etc.
- When an order has been put dependent from the to be obtained financing, license(s) and this in reasonableness cannot be obtained within a by Supplier to be stipulated term, then the agreement will be called off according to law and is Supplier entitled to compensate for the above mentioned damage.
Article 7: Prices
- Agreed prices have been based on the basic price of materials, wages and the like that are valid at the moment of the agreement of the arrangement and are, unless specifically has been mentioned otherwise, and are exclusive VAT and other taxes, excise duties and the like,.
- When an order has been made by buyer/client without a price specifically has been mentioned by Supplier, then the by Supplier at the moment of the execution valid price will be charged.
- When Supplier agrees a particular price with buyer/client, she is nevertheless entitled to raise that price when costs prices determining factors undergo a raising after expiration of a term of 14 days after the realization of the agreement. Supplier will inform buyer/client as quickly as possible about this price increase with all specifications to it.
- When the afore-mentioned price increase amounts to a total of more than 10% of the agreed price exclusive VAT, buyer/client is entitled to dissolve the agreement, provided that he communicates this price increase in writing to Supplier without any delay. Buyer/client is not entitled to the compensation of any damage in case of abolition.
Article 8: Delivery
- Unless otherwise has been agreed, delivery will be made from factory, workplace or warehouse of Supplier, such to the choice of Supplier. If needed, buyer/client has to insure himself therefore against any damage of the goods which arise after they have left the factory, workplace or warehouse of Supplier.
- When one of the “Incoterms” has been agreed as a condition of the delivery the at the moment of the closing of the agreement valid “Incoterms” will be applicable.
- Any agreed delivery term is not a fatal term, unless otherwise has been specifically agreed. By not in time delivery, Buyer/client should therefore hold Supplier liable in writing. In any case the duty of delivery is satisfied when Supplier has offered the sold goods at the with buyer/client on the agreed moment and on the agreed location, by which the report of the one who has taken care of the transportation will count as proof.
- Delivery terms will take effect on the day Supplier has received all for the execution of the agreement necessary records, data, designs, sketches, drawings, models etc. and after the possibly agreed partly payments have been received by Supplier, and when Buyer/client has made a reservation to these conditions as is meant in article 6 chapter 3, has communicated in writing to Supplier that the required financing, license(s) etc. have been received.
- When a delay arises because of a change of circumstances, and/or when the required materials have not been delivered on time at Supplier, the delivery time will be extended with the duration of this delay. The delivery time will also be extended with the time duration that Buyer/client has created by having left any to Supplier due sum unpaid after this has become claimable.
- By an exceeding of the indicated delivery times, buyer/client will never be able to refuse the to be delivered goods or can never dissolve the agreement unilaterally or may never refuse any obligation that rests on him by virtue of this agreement. Neither can any exceeding of the indicated delivery time lead to compensation of damage or fine, unless specifically otherwise has been agreed.
- Buyer/client has been obliged to take over the purchased goods at the moment that these will be delivered to him or will be yielded to him. When buyer/client refuses to take over the delivery or remains negligent with the providing of information and/or instructions that are necessarily for the take over of the goods, the goods will be kept during a month for the account and risk of buyer/client. After the expiration of this term, Supplier is entitled to sell the goods to third parties or will be able to dispose of these goods in any other way, such without reducing her rights towards buyer/client.
- Supplier is allowed to deliver the sold goods in parts. This will not count when a partly delivery has no independent value. When the goods will be delivered in separate parts, Supplier is entitled to invoice each part separately.
- Supplier is allowed to deliver goods that deviate from what has been agreed when this concerns changes of the to be delivered goods, of the packing or of the accompanying documentation which require to comply with applicable legal prescriptions or when it concerns small changes of the affairs that mean an improvement.
Article 9: Flaws; terms of complaints
- The buyer/client has to (let) examine the bought goods at the moment of the delivery or as shortly after that as possible. He has to check if the deliveries comply with the agreement, to know if the right goods have been delivered, or if the delivered goods correspond with the agreements concerning quantities and if the delivered goods satisfy the agreed quality demands, as well, when these are missing, comply with the requirements that may have been put for a normal use and/or for trade goals.
- If visible flaws or deficiencies are noticed, Buyer has to report this in writing at Supplier within 7 days after delivery.
- Not-visible flaws serves the buyer within 7 days after discovery, and the latest within 12 months after episode in writing at Supplier to report.
Article 10: Dissolution of the agreement
- The demands of Supplier to buyer/client are claimable immediately when after the closing of the agreement, circumstances come to knowledge of Supplier that give Supplier good grounds to fear that the buyer/client will (can) not be able to satisfy to its obligations or when Supplier has requested the buyer/giver of order at the closing of the agreement to secure the compliance of it and this security stays will not take place or if this compliance is insufficient. In the above mentioned cases Supplier is entitled to postpone the further execution of the agreement and entitled to start with the dissolution of the agreement, such without that Supplier losses its legal rights to claim compensation of damage.
- When circumstances occur in relation to persons and/or material(s) of which Supplier makes use at the execution of the agreement – or commits himself to make use of – that are of such nature that the execution of the agreement becomes impossible or so troublesome and/or disproportionately precious that the compliance of the agreement in reasonableness can no longer be demanded, Supplier is competent to dissolve the agreement.
Article 11: Force Majeure
- Under Force Majeure is meant all circumstances that prevent the compliance of the agreement and that cannot be accredited to the Supplier. Below this will (when and before these circumstances make the compliance impossible or hamper them unreasonably) also been understood: war, war danger, revolt, fire, strikes in the company of Supplier or in the companies of which Supplier is dependent for the compliance of her obligations, a general flaw of the required raw materials and any other for the fulfilment of the agreed achievement required goods or services, not foreseeable stagnation by ancillary suppliers or other third parties of which Supplier is dependant and general transportation problems.
- Supplier is also entitled to appeal himself to Force Majeure when the circumstance, that prevent (further) compliance to begin, after Supplier should have had to comply with his agreement.
- During Force Majeure, the deliveries and other obligations of Supplier will be suspended. When the period, in which through Force Majeure compliance of the obligations by Supplier is not possible, lasts longer than six months, both parties are entitled to dissolve the agreement without an obligation to damage compensation exists.
- When Supplier at the beginning of the Force Majeure already has partly complied to her obligations or could only partly comply to her obligations, she is entitled to invoice the already delivered part separately and is buyer/client obliged to comply to this invoice as if it concerns a separate agreement. This does not count when the already delivered part has no independent value.
Article 12: Liability
- For flaws of the delivered goods counts the liability as has been defined in these conditions in the article defined under “Guarantee”.
- Supplier is only responsible for damage suffered by buyer/client which is the immediate and direct consequence of a shortcoming that can be reckoned to Supplier bearing in mind, that for compensation only those damage that does not exceed three times the purchase price is taken into account.
- Supplier is not responsible for damage which is the consequence of the use of the purchased/consumed brand products or of products of which the manufacturer is known or can be traced. In those cases, the buyer/client must address the manufacturer of the product.
- Not for compensation will be taken into account business performance damage (company stoppage or disturbance delays, expenses, loss of earnings etc.) and other collateral damage, whatsoever and by whichever cause has been arisen. Buyer/client has to insure himself against this damage.
- Supplier is never responsible for (damage as a consequence of) flaws to goods when it appears that the data, provided by buyer/client or third parties, is not completely correct or incomplete, neither for (damage as consequence of) the quality of materials that have been used by Supplier, neither on indication of or on behalf of buyer/client, neither for the possibility of the application of these materials. The potential resulting damages from one and other will be carried by buyer/client, below which also is understood the damage that is suffered by Supplier.
- Above limitations will not count when the damage is to be blamed to intention or rude responsibility of Supplier or her insubordinate executive employees. In that case the damage compensation will in no case amount more then three times the price of purchase.
- Buyer/client commits himself to safeguard and indemnify Supplier for all damage, expenses and interests which might arise as a direct or indirect consequence of claims or demands of third parties in connection to any delivery obligation towards buyer/client as well as or for the benefit of these delivered goods and/or given advices or damage which is caused by the use of designs, data, samples, models, software, materials or parts as well as by the application of methods, that have been supplied or prescribed for the execution of the order by or because of buyer/client.
Article 13: Guarantee
- Taken into account the limitations as have been put below, Supplier will guarantee the soundness of the by her delivered goods during a period of 12 months after delivery. Towards flaws that are entirely or partly the consequence of any prescription of the authorities concerning the nature or the quality of the applied materials no guarantee will be given.
- All flaws of which buyer/client proves that they have arisen within the afore-mentioned guarantee period and arise exclusively or predominantly as a direct consequence of an inadequacy in the construction as well as a consequence of a faulty finishing or by the use of bad material will be repaired without charges by Supplier. Buyer/client has to make it possible for Supplier at any moment of time to repair any possible flaw; each hindrance will dispose all claims on the basis of this article.
- On materials and/or goods acquired by Supplier, no longer guarantee is provided by Supplier than has been given to Supplier by the relevant sub-supplier and/or manufacturer.
- Supplier can choose to take back the goods with restitution of the price of purchase of the goods when recovery raises objections. Buyer/client is only entitled to replacement when recovery of the goods is not possible.
- The goods of which the guarantee is called upon may only be sent back by buyer/client after prior permission of Supplier. Goods that are sent back but are found to be without defects will be returned at the expense of buyer/client in addition to the expenses made by Supplier as a result of the complaint.
- Flaws that have been risen as a result of normal use, injudicious or incorrect treatment or injudicious or incorrect maintenance or those that occur after changing or repairing by or on behalf of buyer/client himself or of third parties remain outside the guarantee.
- After recovery or replacement in connection to this guarantee, the guarantee term will not be extended and the guarantee ends at the moment that the original guarantee period would end.
- The guarantee will only count when buyer/client complies to all his obligations towards Supplier financially as well otherwise has been satisfied as well has given sufficient security for that.
- The claimed not-complying of Supplier of her guarantee obligations does not dismiss buyer/client of the obligations that result for him simply from any with Supplier closed agreement.
Article 14: Property reservation
- The by Supplier delivered goods remain the property of Supplier until the buyer/client has complied to all obligations from all with Supplier arranged agreements, being the compensation(s) in return to the delivered or to be delivered services and/or goods.
- By Supplier delivered goods, that fall by virtue of clause 1 under the property reservation, may not be resold by buyer/client. In addition, the buyer is not permitted to pawn the goods or to establish other legal right on this.
- When the buyer/clients does not comply to its obligations or if sounded fear exists that he will not do such, Supplier is entitled to take away or let take away the delivered goods from him on which property reservation rests as meant in clause 1 at the buyer/client or third parties that maintain the goods for him. The buyer/client is obliged to provide all cooperation for this purpose with the punishment of a fine of 10% of the amount due to him per day.
- When third parties want to establish any legal rights on the under property reservation been delivered goods, buyer/client is obliged to inform Supplier as fast as reasonably may be expected.
- The buyer/client obliges himself on first request of Supplier to insure the delivered goods under property reservation and keep them insured against fire, explosion- and water damage and against theft and to supply the policy of this insurance to Supplier for examination, all claims of the buyer/client on insurance companies in relation to the delivered goods under property reservation to pawn to Supplier on the way that is prescribed in article 3:239 BW, the claims that buyer obtains towards its buyers by the reselling from by Supplier under property reservation delivered goods to pawn to Supplier on the way, that is prescribed in article 3:239 BW, the delivered goods under property reservation to notice as the property of Supplier and grant on other ways cooperation to all reasonable measures that Supplier wants to arrange to protect his property right in relation to the goods and that Buyer/clients does not impede unreasonably in the normal practice of its business.
Article 15: Payment
- Payment has to occur within 30 days after the invoice date by the transfer of the due sum to the by Supplier given bank account or by means of a legal instrument of payment at the office of Supplier, unless otherwise has been agreed.
- After the expiration of 30 days after the invoice date, the buyer/client is in negligence; he is obliged to pay a sum of interest of a monthly 1,25% of the demanded amount from the moment of the beginning of negligence.
- In case of liquidation, bankruptcy or neglect of payment of the buyer/client, the obligations of the buyer/client will be claimable immediately.
- Payments done by buyer/client serve always to settle in the first place all due interest and expenses and serve in the second place to settle claimable invoices that are unpaid at longest, even if buyer/client mentions that the satisfaction is related to a later invoice.
Article 16: Collection costs When the buyer/client is in flaw with or neglecting the compliance to one or more of its obligations, then all reasonable expenses for the acquisition of satisfaction outside legal rights are to his account. In every case, he has been charged the not legal expenses according to the rate of the Dutch Order of Lawyers. When Supplier demonstrates to have made higher expenses than were reasonably necessarily, then these expenses for compensation will also been taken into account.
Article 17: Disputes
- Dutch law is applicable on each agreement between Supplier and the buyer/client.
- In deviation of the legal rules for the competence of the civilian judge, each dispute between buyer/client and Supplier in the case the Court is entitled to do so will become settled by the Court of Breda, Netherlands. Supplier however remains entitled to subpoena the buyer/client for the, according to the law or the applicable international treaty, competent judge.