Terms of delivery and payment
Article 1 Definition
1.1
Wherever these terms and conditions mention ‘contractor’ or ‘supplier’ or ‘Hulshof’, this is understood to be the private company with limited liability ‘HULSHOF BUSINESS CASES B.V.’, being the legal entity that has accepted the commission to perform work or deliver items.
1.2
Wherever these general terms and condition mention ‘client’ or ‘purchaser’ including ‘anyone with whom Hulshof enters into an agreement or for whom Hulshof makes an offer’ is understood to be the natural person or legal entity who commissions contractor to perform work or deliver items.
1.3
Wherever these general terms and conditions mentions ‘commission’ this is understood to be the request to contractor to perform work for pay or deliver items.
Article 2 Applicability
2.1
These general terms and conditions apply to all legal relationships such as special offers, deliveries, services to be rendered, agreements and performances from the side of Hulshof, with Hulshof acting as contractor and/or supplier or things. Hulshof emphatically rejects any other conditions. By placing an order with contractor the client accepts these general terms and conditions.
2.2
Any deviations from these general terms and conditions are only binding for contractor insofar as this has been confirmed by Hulshof in writing and only for the transaction concerned. If the general purchasing conditions and the present conditions concur, the latter will prevail.
2.3
Client will never be considered a (trade) agent or distributor of Hulshof unless he is appointed as such by agreement.
Article 3 Special offers and concept models
3.1
All special offers, quotations and other expressions from Hulshof are free of obligations, unless emphatically stated or agreed otherwise.
3.2
Measures, weights and samples indicated, shown or issued for special offers or quotations are illustrative and are not binding; the same applies to drawings, moulds, models and tools that may be represented in catalogues or advertisement material, unless Hulshof has emphatically stated otherwise in writing. The pieces mentioned remain the property of the contractor under reference to article 4.1 of these terms and conditions, and must be immediately be returned upon her request. Use by client and/or third party without permission from Hulshof is prohibited.
3.3
Concept models made available to purchaser remain Hulshof’s property at all times. Concept models are considered to have been made available to purchaser undamaged. Concept models must be returned to Hulshof undamaged within a reasonable term. Any damage to concept models must be compensated by purchaser to Hulshof. The costs of the damage will be charged to purchaser by Hulshof.
Article 4 Drawings, models and tools
4.1
Drawings, moulds, models and tools made by or on behalf of Hulshof remain Hulshof’s property, even if costs have been charged to purchaser an even if they have been specifically commissioned by purchaser and even if they are covered by intellectual and industrial ownership of purchaser or third parties. Purchaser is obliged to make sure that drawings, moulds, models and tools, insofar as they have been made available to purchaser, are not copied, imitated, passed on or shown to third parties, unless after express permission in writing from Hulshof.
4.2
Purchaser shall exempt Hulshof from any claim by third parties on the violation of rights, including those of intellectual and industrial properties, on pieces delivered and/or made available to Hulshof by purchaser as mentioned in article 4.1 of these terms and conditions, if any intellectual or industrial ownership right of purchaser or third party is violated with use. Purchaser is obliged to compensate all damage to Hulshof suffered or to be suffered as a consequence of actions towards her from entitled persons concerning rights, including intellectual and/or industrial ownership rights.
Article 5 Agreements
5.1
Agreements with Hulshof are not concluded other than in writing.
5.2
An agreement is considered to have been concluded through and in accordance with the written order confirmation, unless purchaser has protested against this within seven days after shipment of the order confirmation in question.
5.3
User instructions, drawings, shipping documents, folders and other information are not part of the agreement, unless agreed otherwise in writing.
Article 6 Prices
6.1
All prices are exclusive of turnover tax (VAT) and other taxes imposed by the government. Stated prices are only binding if this has been indicated expressly by Hulshof in writing. Stated prices apply to delivery from stock. Transport, packaging, shipment and/or postage costs are borne by purchaser.
6.2
If the cost prices (or cost price determining factors) mentioned in paragraph 1 have changed at the time of delivery, Hulshof is entitled to adjust the prices charged to purchaser in accordance with this, an authorisation Hulshof may only use during the first three months after concluding the agreement after purchaser has been given the opportunity to indicate if he wishes to accept a higher price, or to dissolve the agreement without any compensation of damages or indemnity, however named, in which case Hulshof has the right after all to deliver at the price originally agreed. Purchaser must indicate within seven days after having been invited by Hulshof to do so, if the higher price is desired or the aforementioned dissolution, after which Hulshof must also indicate within seven days after receiving the purchaser’s reply, if the agreement must be considered to be dissolved or complied with on the basis of the price originally agreed. If purchaser does not respond to the aforementioned invitation, he is considered to have accepted to higher price.
6.3
If delivery is delayed by more than one month on the request of purchaser, purchaser is charged interest for each additional month of delay or part of it, in line with the applicable legal interest at the time of the delay and to be calculated over the invoice amount, which does not affect the payment obligation of purchaser in accordance with the payment term originally agreed upon.
6.4
If Hulshof accepts a change in the agreement by purchaser after confirmation of the order, or implementation of the agreement is delayed because Hulshof has not received, or not received in time, or not received correctly the information to be provided by purchaser, Hulshof is entitled to charge the costs and interests resulting from this to purchaser.
Article 7 Delivery time
7.1
The delivery time begins to run from the date of a shipped order confirmation, or in the absence of such from the day the agreement has been concluded, and can only be maintained if purchaser makes sure all data to be provided by him, as well as the required permissions and the like, are received by Hulshof in time and that the payment terms due have been met in time. If purchaser does not meet this obligations in time, the delivery term will be extended accordingly.
7.2
All delivery terms mentioned and/or agreed by Hulshof have been determined in good faith based on the data that was known to the contractor at the time of entering into the agreement and it will be complied with the best way possible, but it is never to be considered binding and/or a fatal term. The single exceeding of the (delivery) term mentioned does not constitute a default on the part of Hulshof and does not entitle purchaser to damages, termination or dissolution of the agreement, or non-compliance of any obligation toward Hulshof.
7.3
In all cases purchaser has the right to summon Hulshof after expiry of the delivery term (if this is indicated with a certain month, at the end of this month) by registered mail to deliver the goods within three months. If the latter term is exceeded, purchaser has the right to cancel the agreement and/or demand compensation, which shall never amount to more than, and will thus be fixated at 10% of what purchaser would have had to pay in the case of implementation of the agreement.
Article 8 Scope of delivery
8.1
The basis of the scope of delivery is formed by the costs, budgets and quotations c.q. special offers, drawings and descriptions made or issued by Hulshof, except insofar as they have been expressly recognized by Hulshof as coming from purchaser.
8.2
Hulshof has the right to deviate from the amount agreed up to a small percentage of 5%, without this leading to any form of settlement. Hulshof is also entitled to deviate from what was agreed upon with regard to small deviations in colour, dimensions and gloss. This includes deviations of a concept model.
Article 9 Delivery, transport and transfer of risk
9.1
Delivery is considered to have been made the moment the items have left Hulshof’s warehouses or the moment Hulshof has informed purchaser that the items are ready for shipment, whichever moment is first.
9.2
Transport of items sold or to be delivered is for the account and risk of purchaser.
9.3
The risk of the items to be delivered is for the account of purchaser from the moment of delivery. If delivery is delayed on the request of purchaser, the risk for the items to be delivered is transferred to purchaser on the day original delivery was panned by Hulshof.
9.4
If purchaser makes a request in time, Hulshof is prepared to insure the goods for the account of purchaser against transport or other damage during the period between the day of risk transfer to purchaser and the day the items come in the actual possession of purchaser.
Article 10 Retention of title
10.1
Hulshof retains the property of all items delivered or to be delivered by her to the client in accordance with the agreement until the claim(s) concerning compensation(s) for the items delivered and to be delivered by Hulshof have been complied with. If Hulshof, in accordance with such an agreement performs or will perform work to be paid for by client, the retention of title mentioned shall apply until the client has fully complied with these claims by Hulshof. This retention of title also applies to claims that Hulshof might have toward purchaser due to failure to fulfil his obligations toward Hulshof.
10.2
During the time that the delivered item is in his actual possession and ownership has not yet been transferred, purchaser is obliged to ensure careful treatment.
The client is permitted to sell and transfer the items delivered under retention of title to third parties in the context of a normal operation of business. Client is obliged toward his clients to stipulate retention of title for and/or on behalf of Hulshof on the grounds of the provision in this article.
10.3
If the retention of title as intended under 10.1 annulled for whatever reason, Hulshof already as of now reserves the lien on the items delivered or the newly formed items or main items as intended in article 3:237 BW as additional security for claims as intended under 10.1. For other than the claims mentioned in article 3:92 paragraph 2 BW which Hulshof should have against client under any agreement, Hulshof already as of now reserves the lien as intended in article 3:237 BW as additional security for these claims.
Article 11 Payment
11.1
Unless agreed otherwise, payments must be made in cash upon delivery, without any discounts or compensation or – if an invoice is sent – by deposit or transfer to a bank account indicated by Hulshof, within thirty days after invoice date. Other terms of payment are only binding if Hulshof has agreed to them in writing. The value date as indicated on the bank account of Hulshof is decisive and is designated as day of payment.
11.2
Each payment by purchaser is primarily for the settlement of interest owed by him, and to pay collection charges and/or administration costs made by Hulshof and will be then be deducted from the oldest outstanding claim.
11.3
If payment has not been made within the term as mentioned in paragraph 1 of this article, purchaser is legally in default and owes interest from the invoice date to the amount of the legal commercial interest over the outstanding amount.
11.4
Regardless of contrary legal regulations, all court costs and extrajudicial costs are fully at the expense of purchaser. Extrajudicial collection costs amount to at least 15% of the amounts owed by purchaser, including the interest mentioned, with a minimum of € 50.
Article 12 Acceptance and claims
12.1
As soon as goods have been delivered, purchaser is obliged to inspect the delivered goods.
12.2
Claims concerning the delivered goods must be communicated in writing within eight days after delivery to Hulshof.
12.3
If claims have not been made in accordance with article 12.2, the right to claim lapses after the term mentioned in article 12.2.
12.4
If particular tests have been agreed, the term of eight days mentioned in paragraph 2 of this article begins to run as soon as the tests can be finished. Any quality and quality checks of the delivered goods are made at a location and on a time determined by Hulshof, in conformity with the standards and criteria agreed. The quality and quantity checks carried out in conformity with the standards and criteria agreed are binding.
12.5
If the delivery is not accepted, the supplier is entitled to either demand compliance with the agreement or dissolution of the agreement. If compliance of the agreement is demanded, supplier can claim complementary compensation, including storage costs, which costs will amount to a minimum of 1% per month of the invoice value of the items stored and will be owed for every month or part of a month that items are kept in storage.
Article 13 Liability and warranties
13.1
In case of incorrect delivery, exclusively and only the provisions of this article shall apply, replacing all legal provisions.
13.2
Only those defects that result from the use of faulty material or from manufacturing defects, and occur within three months after delivery, shall be repaired by Hulshof without charge, or Hulshof, at its discretion, shall replace the delivered goods with goods without defects. Purchaser can only invoke this article if purchaser claims in a way as prescribed in article 12.
13.3
Hulshof does not accept any liability for the functioning of equipment that is built in or for the cabling of products made by Hulshof.
13.4
If delivery is delayed due to circumstances beyond Hulshof’s control or at the request of purchaser, in this article the terms mentioned earlier will start on the day on which delivery would have taken place, if the circumstances had not occurred or the request as mentioned has not been made.
13.5
Purchaser shall allow Hulshof a reasonable term for the delivery of replacement items on the basis of article 13.2. If purchaser refuses this reasonable term, then Hulshof is relieved of its obligations. Hulshof is also relieved of its obligations if without Hulshof’s permission changes are made to the delivered goods or adaptations or repairs.
13.6
In no case Hulshof is liable for more than settlement of more than the purchase price of the item concerned.
13.7
Any repairs or replacements to be carried out by Hulshof will be carried out at Hulshof on site. Transport from and to Hulshof of the product to be repaired or replaced is for the account and risk of purchaser.
Article 14 Force majeure
14.1
Without prejudice to the legal provisions, a situation of force majeure for Hulshof is understood to be: strike, fire, perishing of goods, water damage, government measures, delay of shipment abroad, war, mobilization, transport delays, import barriers, export barriers, default by suppliers, as well as all circumstances that hinder Hulshof in the performance of its business.
14.2
In case of force majeure Hulshof has the right to suspend implementation of the agreement for as long as the situation of force majeure continues, or, if the force majeure has continued, dissolve the agreement entirely or partly, without judicial intervention, without being obliged to pay any compensation.
Article 15 Dissolution
15.1
If the client, without prejudice to the provisions in these general terms and conditions, and after having been placed in default, proves to be at fault regarding his obligations toward Hulshof for eight days, the agreement will be dissolved without judicial intervention, unless Hulshof still desires implementation of the agreement. In case of the dissolution mentioned, client immediately forfeits claimable fines of 15% of the agreed selling price, without notice of default or judicial intervention, and without prejudice to the right of contractor to complete compensation and compensation of costs of recovery, including the costs as mentioned in article 11 of these general terms and conditions.
15.2
Without prejudice to the provisions in this article, Hulshof is authorised to dissolve or suspend the agreement entirely or partly with immediate effect, without notice of default or judicial intervention, if client dies, applies for suspension of payment or files for bankruptcy, or if its bankruptcy or debt rescheduling is or has been applied for or granted. In these cases any claim by Hulshof toward client is immediately and entirely claimable, without Hulshof being bound to damages. In all cases in which client has knowledge of facts and/or circumstances that giver her good reason to fear that she might not be able to meet its obligations toward Hulshof, she is obliged to inform Hulshof of this immediately.
Article 16 Subordinates
16.1
Promises made by staff of Hulshof are only binding insofar as they have been acknowledged by Hulshof in writing.
16.2
In all cases in which Hulshof can invoke any condition in these general terms and conditions, subordinates of Hulshof, including employees, or third parties contracted by Hulshof, can also invoke these.
Article 17 Dispute settlement
17.1
With the exception of the right of Hulshof to take the other party to the court of the place of residence of that party, otherwise only the authorised judge of the district court of Zutphen is authorised.
Article 18 Applicable law
18.1
Dutch law applies to all agreements to be concluded with supplier, with the exception of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980).
Article 19 Invalidity
19.1
If one or more provisions should be or become void, this does not affect the validity of the other provisions.