General conditions of delivery
Eichholtz Overseas Decorations B.V. 2009
Filed at the District Court in Leiden on june 17, 2009 under number B98190
Definitions
In these General Conditions of Delivery (‘the Conditions’):
Eichholtz: is understood to mean Eichholtz Overseas Decorations B.V., a private limited company
(besloten vennootschap met beperkte aansprakelijkheid) with registered office in Hillegom, the Netherlands.
Customer: is understood to mean any natural person or legal entity concluding an Agreement or with whom Eichholtz negotiates the conclusion of an Agreement.
Agreement: is understood to mean any Agreement concluded between Eichholtz and the Customer, any amendment of or addition to such Agreement, as well as all (legal) acts undertaken for the preparation and execution of that Agreement;
General
Section 1.
1.1 These Conditions are applicable to all offers and to all Agreements for the purchase, sale or execution of work between Eichholtz
and the Customer.
1.2 Any standard terms and conditions of the Customer shall not be applicable, unless they have been expressly accepted in writing by Eichholtz.
1.3 All offers and quotations submitted by Eichholtz shall be without engagement or obligation, unless expressly stated otherwise.
Agreements
Section 2.
The Agreement, however described, shall not be concluded until after acceptance by Eichholtz of a contract of work from the Customer. Such acceptance may be evident from the written confirmation of Eichholtz as well as from the fact that Eichholtz executes the Agreement.
Price/Payment
Section 3.
3.1 If one or more of the price factors are subject to an increase after the Agreement has been concluded, Eichholtz shall be entitled to increase the agreed price accordingly, even where such increase is caused by foreseeable circumstances.
Eichholtz shall inform the Customer of such a price increase as soon as possible. If such a price increase takes place within three months after the effective date of the Agreement, the Customer shall be entitled to terminate the Agreement within seven days after the Customer first became aware of the price increase that has been announced.
3.2 In case the Customer is aloud to pay on account, payment shall be made within fourteen days of the date of invoice.
3.3 If the Customer is in breach of his payment obligations, Eichholtz shall be entitled to suspend its work.
3.4 The Customer may not deduct any amounts due by Eichholtz from any amounts that the Customers owes to Eichholtz.
3.5 All amounts owing to Eichholtz by the Customer shall be immediately due and payable in the event that the Customer fails to comply with his payment obligations, goes bankrupt, applies for provisional or definitive suspension of payments, is placed into administrative receivership, if his property and/or claims are attached under a warrant of execution, and in the event of his death, if he goes into liquidation or is dissolved.
Delivery
Section 4.
4.1 Inside the EU delivery shall be made carriage paid to an address to be notified by the Customer. Eichholtz may charge the Customer shipping costs and postage costs if the delivery relates to goods with a value of less than EUR 5,000.
4.2 The delivery period shall commence on the date stated by Eichholtz on the order confirmation.
4.3 The delivery period notified by Eichholtz is based on the working conditions applicable at the time of the order confirmation and on timely delivery of the
materials ordered by Eichholtz for the execution of the
Agreement. If, through no fault of Eichholtz, a delay occurs due to a change in the aforementioned working conditions or because materials that have been ordered in good time for the execution of the work are not delivered in good time, the delivery period shall be extended to the extent necessary. The delivery period
shall also be extended if the delay on the part of Eichholtz has occurred as a result of the Customer’s failure to perform any obligation arising for the Customer from the Agreement or any failure to provide cooperation that may be required of the Customer.
4.4 Unless in the event of wilful misconduct or gross negligence committed by Eichholtz, any failure to meet a deadline for delivery shall not entitle the Customer to terminate all or part of the Agreement or to demand or receive compensation for any loss or damage suffered or incurred by the Customer.
4.5 If delivery cannot take place in the agreed manner due to causes not attributable to Eichholtz, Eichholtz shall be entitled to charge the costs that this shall entail to the Customer.
4.6 Unless otherwise agreed in writing, only those additional costs in connection with a delivery that Eichholtz makes at the explicit request of the Customer will be charged separately to the Customer.
Force majeure
Section 5.
In these General Conditions of Delivery, `force majeure’ shall be understood to mean any circumstance beyond the control of Eichholtz – even if this could already have been foreseen at the time the Agreement was concluded – that permanently or temporarily prevents performance of the Agreement as well as, to the extent not already included in such definition: war, threat of war, civil war, riot, industrial action, lockout of workers, import and export bans, transport difficulties, fire and other serious interruptions in the business operations of Eichholtz or its suppliers.
Suspension and termination
Section 6.
6.1 In the event the performance of the Agreement is not possible as a result of force majeure, Eichholtz shall be entitled with immediate effect either to suspend the execution of all or part of the Agreement for no more than six months or to terminate all or part of the Agreement, without Eichholtz being obliged to pay any
compensation.
6.2 If the Customer fails to perform any obligation arising for him from the Agreement concluded with Eichholtz or from any other Agreement related to it, or fails to perform such obligation properly or in good time, or in the event that there are good grounds for fearing that the Customer is not or will not be able to perform its contractual obligations vis-à-vis Eichholtz, as well as in the event of bankruptcy, suspension of payments, close-down or partial transfer of the Customer’s business, Eichholtz shall be entitled, without notice of default being required, either to suspend execution of the Agreement for no more than six months or to terminate all or part of the Agreement.
6.3 The agreed price shall become immediately due and payable in the event of suspension or termination within the meaning of paragraphs 1 and 2 above.
Security / retention of title
Section 7.
7.1 If Eichholtz has valid reasons for doubting the Customer’s willingness to pay and his solvency, it shall be entitled, before delivering or performing work or continuing work, to demand security for the performance of all the Customer’s obligations under the Agreement. If such security is refused by the Customer, Eichholtz may consider the Agreement as having been terminated, without prejudice to Eichholtz’ rights to compensation for loss or damage, expenses and loss of profit.
7.2 The Customer shall only become the owner of the goods delivered by Eichholtz on the condition precedent of payment in full of the agreed price. Eichholtz shall remain the owner of the delivered goods for as long as the Customer has not paid the amounts owed by him under the Agreement. As long as the Customer has not yet paid the aforementioned amounts, the Customer shall not be entitled to create a pledge, no possessory or otherwise, on the goods delivered by Eichholtz. If the Customer fails to perform the aforementioned obligations, Eichholtz shall be entitled to repossess the delivered goods without further notice of default being required.
Liability
Section 8.
8.1 Eichholtz shall only be liable for loss or damage that has occurred during or upon the execution of the Agreement, if and to the extent that the loss or damage is the result of wilful misconduct and/or gross negligence on the part of Eichholtz and/or its supervising subordinates and also to the extent that the liability insurance taken out, or to be taken out, by Eichholtz under the usual terms and conditions, indemnifies for such loss or damage. Eichholtz will under no circumstance be liable to pay compensation in excess of the invoice value.
8.2 Eichholtz shall never compensate for consequential loss, loss of profits and damage due to loss of income on the part of the Customer, irrespective of how such may have arisen.
Product liability
Section 9
The Customer indemnifies Eichholtz against all claims from third parties in respect of product liability as a result of a defect in a product that the Customer has supplied to a third party, unless the Customer can prove that the loss or damage is the result of gross negligence on the part of Eichholtz.
Warranty
Section 10.
Warranties provided by Eichholtz with respect to goods that have not been produced by Eichholtz shall only be given to the extent that Eichholtz’ supplier has provided a warranty that covers any loss or damage that may have been caused.
Claims/complaints
Section 11.
11.1 The Customer can only claim defective performance of the Agreement, at the risk of forfeiting all rights vested in him, if he has protested to Eichholtz in writing by registered letter within a reasonable period, which is normally understood to be eight days, after he has discovered or should reasonably have discovered the defect.
11.2 Submission of a claim does not entitle the Customer to suspend all or some of his obligations.
Applicable law
Section 12.
The Agreement shall be governed by and construed in accordance with Dutch law.
Competent court
Section 13.
Any dispute arising from the Agreement shall be submitted by the parties for exclusive adjudication by the competent court in Haarlem, subject to Eichholtz’ right to commence proceedings before another competent court.