Having its registered office and principal place of business in Ridderkerk registered at the Chamber of Commerce under number 24151138
Application of Terms and Conditions
1a. These Terms and Conditions apply to all offers, agreements and deliveries by Elmarc B.V. and the contracting party to which these Terms and Conditions apply by notice, both herein referred to as “Supplier”. Any party involved in a legal relationship with the Supplier based on these Terms and Conditions shall be referred to as the “Other Party”.
1b. Any variation to these Terms and Conditions shall have no effect unless set out in writing and signed by the parties to the Agreement. Any party asserting that divergent terms and conditions are stipulated has the burden of proving this assertion by a preponderance of evidence.
1c Unless otherwise expressly agreed in writing, all other standard terms and conditions put forward by the Other Party are hereby excluded.
Offer and acceptance
2a. Offers made by the Supplier are non-binding and revocable. Supplier shall be entitled to withdraw its offer within five days from the receipt of acceptance by the Other Party. No agreement shall be effected until a written acknowledgement is issued by the Supplier to the Other Party. The substance of the written acknowledgement shall be considered to be correct and complete unless the Other Party files an objection thereto within eight days.
2b. If, after the conclusion of an agreement, but before or during the execution thereof, the Supplier changes its standard product prices (e.g. due to change in prices of materials, wages, premiums, taxes, etc.), the Supplier is entitled to charge the new price to the Other Party as of the effective date of the price increase; the same also applies to existing orders. In the event of a price increase other than due to government measures, the Other Party shall be entitled to cancel the Agreement to the extent that it has not yet been executed, provided this is done in writing within five working days from the date on which the Supplier notified the Other Party of the price increase.
Delivery Dates and Force Majeure
3a. Unless otherwise expressly agreed in writing, any dates specified by the Supplier for delivery of the goods are merely estimates and do not constitute firm dates. If delivery does not take place on time, Supplier shall be in default after having received a written notice to that effect. The notification of a delivery date does not serve as proof of agreement on a firm date.
3b. Where a delivery date is not met or where default as referred to in the previous paragraph occurs, the Other Party shall not be entitled to compensation, but may either demand fulfilment within a reasonable period of time or dissolve the agreement.
3c. Any delivery date that is not met due to force majeure shall entitle either party to dissolve the Agreement by notifying the other party in writing thereof after the force majeure event has lasted for two months, all this without either party being entitled to claim compensation from the other party. Dissolution due to force majeure shall relate only to that part of the agreement that cannot be fulfilled due to force majeure.
3d. Force majeure in the sense of these Standard Terms and Conditions shall include any circumstance beyond the will or control of the Supplier, whether or not foreseeable, which prevents fulfilment of the agreement between the Supplier and the Other Party, such as war or comparable or connected circumstances, business interruptions, government measures, strikes, work lockouts and other work problems, breach of contract or force majeure on the side of third parties engaged by the Supplier to assist in the execution of the agreement, purchase price changes in excess of 20%, floods, natural disasters and any external contingencies.
Delivery and Transport
4a. Unless agreed otherwise in writing, delivery shall be made ex works Ridderkerk. The goods are at the risk of the Other Party from the time of delivery. If for any reason the Other Party fails to accept the goods after expiry of the delivery date, the Supplier shall store the goods for the Other Party, whereupon the Other Party shall be liable for all related costs, expenses and risk.
4b. Supplier may deliver the goods by separate instalments and invoice each instalment separately.
4c. Any specific wishes of the other party in respect of transport or the forwarding of goods shall only be carried out if the other party has declared in writing to be prepared to bear the additional cost thereof.
Complaints and Warranty
5a. The goods to be delivered by the Supplier comply with the usual requirements and standards that may be reasonably imposed at the time of delivery and which apply in case of normal use of the goods.
5b. The warranty under paragraph a of this Article applies for a period of 2 years after delivery, unless the nature of the delivered goods requires another kind of warranty or unless the parties have agreed otherwise. Under this warranty, Supplier shall at its sole discretion repair, replace or refund the purchase price of the covered goods.
5c. Any form of warranty is void if a defect has occurred as a result of improper or inappropriate use, incorrect storage or maintenance of such good by the Other Party and/or third parties, if the Other Party or third parties have applied changes to the goods without the written consent of the Supplier. The Other Party shall also not be entitled to warranty if the defect is caused by or arises from circumstances beyond the Supplier’s control, including the supply of products that are manufactured to the specific instructions of the Other Party (in terms of design, manufacturer or packaging) and the defects are related thereto.
5d. The Other Party shall be responsible for inspecting the goods for defects upon delivery and for notifying the Supplier in writing of any defects on discovery without undue delay. If the Other Party fails to notify the Supplier of defects in writing within three days after the day of delivery, the Other Party shall be deemed to agree with the condition in which the purchased goods have been delivered and that the delivered goods are in conformity with the agreed specifications.
5e. The Other Party shall afford the Supplier the opportunity to examine the complaints lodged. Where agreement is reached, a written statement will be prepared that must be signed by both parties.
5f. Where the parties are not able to reach agreement, an independent expert shall be brought in. The cost of this expert shall be borne by the party that fails in its claim, unless otherwise expressly agreed in writing.
5g. Where a complaint is justified in the opinion of the Supplier or the independent expert, the Supplier shall, at its sole discretion, pay compensation – in accordance with the value reduction arising from the complaint – up to the amount of the invoice value of the delivered goods or replace the delivered goods once the original goods have been returned in their original condition. Supplier shall not be obliged to pay any further compensation of whatever nature.
Payment and Debt Collection Costs
6a. Insofar as not otherwise agreed in writing, payment by the Other Party shall be effected by PIN payment at the office of the Supplier, or by transfer to a bank or giro account to be specified on the invoice and shall be effected without any discount or setoff, within 21 days from the invoice date. Lodging of a complaint shall neither fully nor partially cancel the payment obligation of the Other Party.
6b. Payment shall be deemed to have been made on the date the payment is credited to a bank account of the Supplier. Payments shall be allocated to settle the oldest outstanding amounts including interests and costs (even if the Other Party states otherwise in this respect).
6c. Supplier shall at all times have the right to demand that the Other Party provide satisfactory security for the fulfilment of its payment obligations to Supplier.
6d. Any postponement of payment granted by Supplier to the Other Party shall only apply if and insofar as the Supplier has granted such in writing.
6e. In the event of overdue payment by the Other Party of the full amount due to the Supplier, the Other party shall be in default ipso jure without a warning or notice of default being required. As of that time, Supplier shall be entitled to suspend all obligations pursuant to the Agreement hereunder and any other agreements with the Other Party or to dissolve these agreements in whole or in part.
6f. Without prejudice to any other rights the Supplier may have, from the time that payment should have been made until the time that the Other Party has actually made the payment, the Other Party shall be required to pay the Supplier a statutory default interest equal to the legal interest; this also applies to amounts for which the Supplier has granted postponement of payment.
6g. Apart from further claims for damages by the Supplier, all judicial and extrajudicial costs shall be borne by the Other Party. The payable extrajudicial collection costs are specified in the ‘Besluit vergoeding voor buitengerechtelijke incassokosten’ (Dutch ‘Decree on compensation for extrajudicial collection costs’).
6h. Where the Other Party files a petition for (temporary) suspension of payment or files or is the subject of a bankruptcy petition, if any part of its assets is seized and, in all other cases in which the Other Party must also seriously take into consideration that it will not be able to fulfil its obligations towards the Supplier, it shall be obliged to notify the Supplier immediately of this by telephone and to confirm this notification in writing.
6i. If one of the situations referred to under 6h occurs, the Supplier shall have the option to either suspend or dissolve any current agreement(s) between the Supplier and the Other Party without prejudice to the Supplier’s other rights. All payments due by the Other Party up to that time shall be immediately due and payable in full.
6j. If the Other Party is of the opinion that the balance that it owes the Supplier in accordance with the documents issued by same is incorrect, it shall be obliged to file an objection thereto in writing within ten days, accurately and fully stating the erroneous entries alleged by it. In the absence of such an objection, its right to object
to the balance will be waived.
6k. All the cases in which the Supplier is entitled to suspend its obligations under the agreements with the Other Party or to dissolve those agreements shall be considered to be an attributable failure of the Other Party in the fulfilment of its commitments, whereupon the Other Party will be liable to reimburse all costs, damages and interests.
6l. Where the Supplier chooses to suspend its obligations, the Supplier shall retain the right to dissolve the agreement, in whole or in part, at any time thereafter.
Retention of Title
7a. The Supplier delivers under extended retention of title, whereby it shall retain the title to all goods it supplies until the Other Party fulfils all its obligations to the Supplier. This extended retention of title shall apply to all that is due by the Other Party to the Supplier, both in respect of deliveries already made, and the costs and activities involved, and in respect of all future deliveries, and the costs and activities involved.
7b. If payment by the Other Party is overdue or if there is good reason to assume that it will not pay or will not pay on time, the Supplier shall be entitled to repossess the delivered products to which Supplier has retained the title in accordance with the provision stipulated under 7a. To the extent necessary, Supplier shall be deemed to be irrevocably authorised by the Other Party to have the products concerned collected from the location at which they are stored. Repossession of the goods shall constitute the dissolution of the agreements with the Other Party.
7c. Where Supplier repossesses specific products in accordance with the provision stipulated in 7b, the Other Party shall be credited according to the value of the products determined by Supplier at the time of repossession, less the costs incurred in the repossession.
7d. The Other Party shall be entitled to have at its disposal the products on which retention of title rests if and insofar as is necessary for the ordinary course of the Other Party’s business operations. Where the Other Party exercises this right, it may deliver the products under retention of title to third parties subject to clearly stating the Supplier’s retention of title. Normal business operations shall not include the provision of security to third parties in whatever manner and in whatever form.
7e. The Other Party hereby grants the Supplier a lien on the claims that it has or shall have on third parties on the grounds of resale of goods purchased from Supplier. Supplier shall be entitled to effect its commercial invoice for deliveries to the Other Party with the designation of those third parties to whom the Other Party has resold the goods, in order to enforce a lien of Supplier on the claim of the Other Party to the relevant third parties and notify this to those third parties.
7f. The Other Party shall be obliged to notify the Supplier as soon as possible, in the same manner as described in 6h, if a third party alleges to have rights in respect of products delivered by the Supplier on which, in accordance with the provision stipulated in 7a, retention of title rests.
8a. Supplier reserves the rights and powers it is entitled to under the Copyright Act and under other laws and regulations on intellectual property, including those represented and/or owned by the Supplier. All drawings, calculations, designs, samples, models, templates, dies and the like, are and shall remain the property of the Supplier.
8b. The Other Party may not modify, reproduce, publish, including copy, provide or show to third parties any goods or documents without the written consent of the Supplier. Furthermore, all goods and or documents, as described above, provided by the Supplier shall be returned at the latter’s request.
9a. Where Supplier is liable, this liability shall be limited to the provisions of this Article.
9b. Supplier is not liable for such damage as may have been sustained in consequence of acts performed by the Supplier based on incorrect and/or incomplete information provided by or on behalf of the Other Party.
9c. Should the Supplier be liable for any damage, the Supplier’s liability is limited to the invoice value of the order. Where there are multiple deliveries under an agreement or an agreement that clearly consists of defined parts, then the liability is limited to such part of the order or delivery affected by the liability.
9d. In all cases the liability of the Supplier shall never exceed the amount paid out by its insurance company in such a case, and in the absence of coverage, it shall be limited to EUR 100,000 per damage event or incident.
9e. Supplier is liable for direct damage only. Direct damage is understood as the reasonable costs sustained for establishing the cause and the extent of the damage to the delivered goods, as well as any reasonable costs incurred to adjust the inadequate performance of the Supplier to make it comply with the agreement (after Supplier is given the opportunity to do so) and the reasonable costs incurred to prevent or to limit further damage to the goods.
9f. Supplier shall not be liable for any indirect damage, including consequential damage, loss of profit, missed cost saving opportunities and damage caused by stagnation of business.
Partial Application and Modification
10a. Where one or more provisions in the agreement(s) between the Supplier and the Other Party are null and void, whether in whole or in part, the other provisions shall continue to apply in full. Instead of the invalid provisions, if any, a suitable arrangement shall apply that, in a legally effective manner, will be as close as possible to the intention of the parties and the economic result aimed for by them.
10b. Where it is considered desirable or necessary, Supplier shall be entitled to modify these Standard Terms and Conditions.
Place of Execution, Applicable Law and Jurisdiction
11a. The place where the Other Party must fulfil its obligations towards the Supplier shall be Ridderkerk.
11b. This Agreement and all other agreements between the Supplier and the Other Party shall be governed and construed in accordance with the laws of the Netherlands.
11c. Any disputes arising from or in connection with the Agreement shall be settled, at the sole discretion of the Supplier, by the competent court in Rotterdam or the court district in which the Other Party has its principal place of business. These Standard Terms and Conditions of Sale and Delivery were filed with the Chamber of Commerce in Rotterdam on 13th September 2013 under number 24151138.