GENERAL TERMS AND CONDITIONS
Of: the private company “Coolways BV”, registered with its place of business in Nieuwersluis on the Angstelkade no. 2a 3.1 (3631 NA).
Applicability:
1.1. These General Terms and Conditions apply to all quotations made and purchase agreements concluded by the aforementioned enterprise – hereafter referred to as “the seller” – including payments to be made to the seller. The other party to the abovementioned relationships is hereafter referred to as “the buyer”.
1.2. Any deviating conditions, including any purchase or sales conditions which the buyer deems to be applicable, are only valid insofar as – individually for each new agreement – the seller has confirmed this to the buyer in writing.
Realisation of the agreement:
2.1. All quotations are non-binding, unless otherwise agreed explicitly and in writing.
2.2. A purchase agreement shall first be created by means of the seller sending an order confirmation to the buyer, in response to an order placed by the buyer by e-mail, telephone, fax or another means of communication. Only the content of the order confirmation is binding on the parties. All errors and mistakes are at the buyer’s expense and risk.
Description, quality and supply periods:
3.1. With respect to the agreed sizes, weights, amounts and qualities, the seller shall have recourse to the relevant usual margins.
3.2. Unless an explicit written guarantee has been made by or on behalf of the seller that the goods supplied are suitable for the purpose for which the buyer intends to use them, the seller does not guarantee that the goods are suitable for that purpose, even if the seller was made aware of the buyer’s intention and/or the seller has advised the buyer about this.
3.3. The supply period shall be either established by the seller or agreed between the parties. However, in neither case is the seller liable if that supply period is exceeded. In the event that one or more elements of the goods sold become ready before the end of the supply period, the seller is entitled to deliver the goods in one or more partial deliveries.
Supply, packaging and shipping:
4.1. The seller is required to deliver the goods sold to the buyer in good and proper packaging, exclusively at the seller’s discretion. The buyer is not permitted to alter or substitute that packaging.
Price and price alterations:
5.1. The prices used by the seller are exclusive of VAT and inclusive of the costs for packaging, import duties and other levies and taxes imposed by the authorities. In the event that the invoice amount is less than €100, the buyer must pay the seller an additional sum of €5 to cover administrative costs. The transport costs may or may not be charged to the buyer in addition to the purchase price.
5.2. The seller is entitled to charge any alterations to the cost components described in Article 5.1. to the buyer.
5.3. In the event that the force majeure described in Article 6.1. causes the suppliers of products, auxiliary materials and/or resources and other services to the seller to increase the price of the goods and/or services required by the seller, the seller is entitled to pass on these price increases to the buyer. In that event, the buyer has the right, during the 48 hours following receipt of the notification of the price increase, without judicial intervention to dissolve the purchase agreement by means of a registered letter directed to the seller. In that event, neither party may make a claim for any compensation.
5.4. The seller is entitled to charge to the buyer any changes in the exchange rates of the various currency units relative to the EURO, in which the price of the goods sold and/or goods and/or services purchased by the seller in connection with the purchase agreement is expressed.
Force majeure:
6.1. Force majeure is considered to have taken place on the side of the seller if, after closing the purchase agreement, the seller is impeded in fulfilling his obligations arising from the agreement as a result of war, threat of war, insurgency, act of war, impediments, government measures, machinery defects or disruption to the supply of energy, whether within the seller’s own company or in those of third parties on whom the seller is dependent for the fulfilment of the purchase agreement.
6.2. The supply period described in Article 3.3. shall be suspended for the duration of the force majeure.
6.3. In the event of force majeure, the seller retains the right to dissolve the purchase agreement, either in whole or in part, with no requirement for judicial intervention. In that event, neither party may make a claim for any compensation.
Payment:
7.1. Including in the event of partial deliveries, payment must take place no later than 30 days following the invoice date, without any discount and/or compensation. The seller is entitled to invoice the buyer on the day when the goods are purchased.
7.2. If there is any doubt about the buyer’s liquidity, exclusively at the seller’s discretion, the seller is entitled, prior to supplying and/or shipping the goods, to demand payment and/or surety or to supply the goods on a cash-on-delivery basis.
7.3. In the event that the total amount owed has not been paid within 30 days following the invoice date, the buyer agrees to pay the seller, without any requirement for a summons, notice of default or judicial intervention, interest of 1% on the entire invoice amount for each month or part of a month that the entire sum is not paid. In that event, the seller is also entitled to suspend future deliveries or to impose the conditions for further deliveries described in Article 7.2.
Retention of title:
8.1. The goods supplied by the seller to the buyer remain the property of the seller up to the moment at which the buyer has fulfilled all his payment obligations to the seller – including those arising from other purchase agreements.
8.2. For as long as the buyer holds goods considered under 8.1. to belong to the seller, the buyer must properly insure these goods against the usual risks. The buyer is only entitled to use these goods for his normal business operations. The buyer is expressly forbidden to use these goods as a deposit or in any other way as security in relation to third parties.
8.3. In the event that the buyer does not fulfil the payment obligations described in Article 7.1., as well as in the cases described in Article 11.1., in accordance with Article 8.1., the seller is authorised to reclaim his goods and to remove them or have them removed from the buyer’s company.
Inspection and complaints:
9.1. The buyer is obliged to inspect the goods supplied by the seller immediately following receipt.
9.2. Complaints relating to the quality, sizes and weights, etc., of the goods supplied and/or of their packaging must be brought to the seller’s attention in writing within 8 days following receipt of the goods.
Seller liability:
10.1. With respect to the provisions contained in Article 9, in the event that defective goods are supplied, the seller is entitled – on condition of acknowledgement of receipt of the goods supplied – either to return the purchase price to the buyer or to substitute the goods for similar items, without the buyer having the right to claim any compensation.
10.2. The seller’s liability for any form of damage to the environment, and subsequent damage considered to result from that, suffered by the buyer and/or by third parties as a result of the use, consumption or transport of the goods supplied to the buyer by the seller is excluded, unless the seller caused this damage knowingly or through gross negligence. The provisions contained in this paragraph also apply to the content of the (product) information provided by the seller together with the goods supplied.
10.3. In all cases, the seller’s liability is limited to a sum equal to the purchase price of the goods supplied to the buyer.
10.4. With respect to the provisions contained in Articles 10.1.-3., the buyer agrees to indemnify the seller against both judicial and extrajudicial claims by third parties. The buyer agrees to take out insurance for loss of profits, together with statutory liability insurance, each to include cover to a minimum of €450,000 and to be governed by the usual conditions.
Dissolution, extrajudicial costs:
11.1. Without prejudice to the seller’s rights under Articles 1302 and 1303 B.W. and without prejudice to other provisions contained in these General Terms and Conditions, the seller is entitled to dissolve the purchase agreement in the event that, within 10 days after the seller sends a written reminder, the buyer still has failed to fulfil one or more of the obligations imposed on the buyer by any applicable purchase agreement and/or by these General Terms and Conditions, and moreover without judicial intervention, summons and/or notice of default, provided that the buyer:
– applies for suspension of payment; – is declared to be eligible for bankruptcy;
– enters liquidation; – has (a part of) his goods seized; – goes into receivership, or – otherwise loses power of disposal over his capital or a part thereof
The seller is entitled to claim compensation from the buyer for the damages suffered as a result of the dissolution.
11.2. The provisions contained in Article 11.1 do not affect the seller’s right to insist that the buyer comply with the agreement, whether or not compensation is claimed.
11.3. In the event that the seller must incur legal costs, whether judicial or extrajudicial, as a result of the buyer’s non-compliance with any obligations which, under the terms of this agreement, arise from the above, the buyer agrees to compensate the seller in full for these costs. In the event of non-payment, the parties agree to establish the extrajudicial costs at 10% of the amount payable, with a minimum of €300.
Applicable jurisdiction and competent Court:
12.1. The purchase agreements with the seller shall be exclusively governed by the laws of the Netherlands. The applicability of the Uniform Sales Laws and treaties (the L.U.V.I and the Vienna Sales Convention) is expressly excluded.
12.2. The competent Dutch Court is authorised, to the exclusion of all other entities, to examine all disputes which may arise between the buyer and the seller as a result of the purchase agreement. Disputes which fall under the competence of a District Court of Midden-Nederland, or the President of such a Court, shall exclusively be settled by the District Court of Midden-Nederland in Utrecht or the President of that District Court.
