GENERAL CONDITIONS OF SALE
In these conditions the following definitions are applicable:
Supplier: the closed company with limited liability Lekkerkerker Dairy & Food Equipment having its business seat at Lopik and registered at the Chamber of Commerce in Utrecht, the Netherlands, under number 30138665;
Purchaser: any party that enters into an agreement with Supplier; goods and services;
Extra work: anything delivered and/or added by Supplier to the quantities explicitly stated in the agreement of the order confirmation as well as any services rendered by Supplier to Purchaser which go beyond the scope of the services explicitly described in the agreement or the order confirmation, which additional quantities or services have been agreed upon in prior consultation with Purchaser.
2.1. These conditions are applicable to all offers and agreements with Supplier. Any reference by Purchaser to other general conditions is hereby explicitly rejected by Supplier.
- Deviations from these conditions are binding only to the extent expressly agreed upon in writing by the parties.
- All offers are non-binding, unless parties have explicitly agreed otherwise.
- Offers are based on performance under normal circumstances and during the regular working hours.
- The prices mentioned by Supplier in his catalogues or elsewhere are non-binding for Supplier. All samples, models, illustrations and information on measures, weights or other characteristics of the Products are solely indicative. Purchaser is barred from relying on such indications as evidence of any warranty by Supplier that the Products will conform therewith.
- Reaching an Agreement
- An agreement will only become legally binding upon written confirmation by Supplier of an order or upon fulfillment by Supplier of the order.
- The prices quoted by Supplier are denominated in Euro and exclude sales tax (VAT) and other levies imposed by the government.
- As of the date upon which the agreement will take effect, Supplier is entitled to increase the agreed prices to reflect interim increases of one or more of the cost bases used to calculate said prices.
- Supplier is entitled to charge Purchaser an additional fee for Extra work. Subsections 1 and 2 of this articles are by analogy applicable to Extra work.
- Retention of legal title
- Supplier retains full legal title to all goods delivered to Purchaser until paid for in full to the extent that such retention is valid under the applicable law.
- For so long as legal title has not passed to Purchaser, Purchaser is prohibited from selling the Product or granting to any third party a security interest in the Product.
- Upon failure by Purchaser to meet one or more of its obligations of payment towards Supplier or when Supplier has good reason to expect such failure, Supplier is entitled to remove and retrieve the Product to which legal title has been retained. Upon retrieval of the goods, Purchaser shall be credited for the market value thereof, which value shall be reduced by any costs incurred by Supplier to retrieve the Product.
- Drawings and descriptions
- All drawings and technical documents relating to the Product or its manufacture submitted by Supplier to Purchaser shall remain the property of Supplier, regardless whether they are paid for by Purchaser.
- These drawings and technical documents shall not without the consent of Supplier be used for any other purpose than erection, commissioning, operation or maintenance of the Product. They may not without the consent of Supplier be used or copied, reproduced, transmitted or communicated to a third party.
Supplier shall not be obliged to provide manufacturing drawings for Products or spare parts.
- Delivery, transfer of risk
- The delivery period shall be deemed to be an estimate of the time required for delivery, unless the parties explicitly agree in writing that any stated period shall be deemed to be a fatal deadline.
- An agreed-upon delivery period shall not commence until the date upon which all information and formalities necessary for the performance of the agreement which Purchaser is required to provide to Supplier and any prepayment of the purchase price is in the possession of Supplier.
- The Product is deemed to have been delivered when, in the event that testing on the premises of Supplier has been agreed upon, when it is ready for testing and, in all other cases, when it is ready for shipment, provided that Purchaser has been notified in writing thereof and insofar the parties have not otherwise agreed upon in writing. In the event that Supplier undertakes to install the Product, it will be deemed to have been delivered when this Product or the most important components thereof have been fully installed at the location agreed upon.
- Upon delivery, all risk in and to the purchased Product or the components designed therefor will transfer to the Purchaser.
- In the event that the period for delivery has been exceeded, Supplier will not by operation of law be deemed to be in default. Purchaser shall not be entitled, as a result of Supplier exceeding any delivery period, to perform or have performed any obligation of Supplier under the agreement, recover any compensation from Supplier or dissolve the agreement. Purchaser is solely entitled, upon expiration of a delivery period, to summon Supplier in writing to deliver within 30 days. In the event the latter deadline is exceeded, Purchaser will have the right to dissolve the agreement.
- Upon delivery, including installation and operationalization, Purchaser will, if so requested by Supplier, sign a purchasing protocol as evidence that the Product has been delivered in full and working order.
- Installation and repair.
9.1 Purchaser is responsible for the correct and timely implementation of all arrangements, provisions and/or conditions necessary to house and operate the Products to be installed when fully installed.
9.2 Purchaser will further, at its sole cost and risk ensure that:
- Supplier's personnel is able to perform its activities during normal working hours as well as outside normal working hours provided that Supplier has informed Purchaser in advance;
- suitable accommodation and all other amenities are made available for the personnel of Supplier required by law or regulation, this agreement or custom;
- access to the location of the Product is available and such access is suitable for the mode of transportation necessary;
- the location site indicated for the Product is suitable for storage and installation;
- storage places for material, tools and other equipment are available and can be secured;
- the necessary and customary persons, vehicles, equipment and material as well as the measuring and testing equipment normally used by Purchaser are available to Supplier timely and free of charge at the appropriate location;
- all necessary safety and precautionary measures have been and will be taken, and that all measures have been and will be taken in order to comply with the regulations applicable to the installation;
- upon commencement and during the installation, the Products sent are available at the appropriate location.
9.3. Damages and expenses incurred as a result of the fact that the conditions as described in this article have not or not timely been satisfied, shall be borne solely by the Purchaser.
- Test and trial
- Purchaser will, at its own expense, test the Product within 14 days of the date of delivery. If no written and specific notice of complaint is received prior to the expiration of this period, the Product shall be deemed to have been accepted by Purchaser.
- In the event that a trial run of the Product at the premises of Purchaser has been agreed upon, Supplier will be given the opportunity to conduct the trial run. For this purpose, Purchaser will, at its sole cost, arrange for the timely availability of the necessary vehicles, equipment, materials, water, energy, heating and lighting.
- Supplier will be given the opportunity to respond to any complaints by Purchaser as a result of the trial, before the Product can be rejected by Purchaser.
- In the event that the trial run is conducted without causing any valid and specific complaint or in case of insignificant defects (where, for example, the intended use of the Product is not or only marginally affected), the Product will be deemed to have been accepted by Purchaser. Supplier shall thereupon remedy any insignificant defects as soon as possible.
- Acceptance will preclude any claim by Purchaser with respect to a breach of performance by Supplier, without prejudice to Supplier's obligation to comply with its guarantee obligations.
- Purchaser shall pay invoices of Supplier within 14 days after the date of dispatch.
- Payments shall be made without any deduction or set-off to a bank account to be indicated by Supplier.
- Supplier is entitled at any time to demand security for the payment of the purchase price before proceeding with or commencing performance of the agreement. Security can consist of partial or full prepayment of the purchase price by Purchaser to Supplier.
- In the event that Purchaser fails to render payment of any applicable prepayment within the payment term, Purchaser shall be deemed to be in breach of the agreement, without any notice of default or judicial intervention being required. As of that moment, Purchaser is required to pay interest in the amount of 1.5% per month of the outstanding amount due, a portion of a month being deemed to be a full month, and to compensate Supplier for the costs incurred in compelling performance in or out of court, including any legal or collection costs, which shall be calculated to be at least 15% of the amount due.
12.1 For a period of 6 months following the date of delivery, Supplier shall repair any defect resulting from faulty materials, construction, installation, alteration or manufacturing, as far as repair is reasonably possible.
12.2. The guarantee of paragraph 1 does not apply if:
- Purchaser has failed to notify Supplier in writing of the existence of the defect immediately after the defect has been discovered;
- the defect could reasonably have been discovered by Purchaser upon testing;
- the defect is caused by faulty unprofessional or negligent maintenance or use by the Purchaser;
- Purchaser or third parties have altered the Product without the written consent of the Supplier;
- Purchaser has not followed the directions for use or the instructions of Supplier;
- Purchaser fails to perform one or more of its obligations under the agreement.
12.3. The Products to be repaired pursuant to this guarantee shall be delivered by Purchaser to Supplier. Repair does not extend the guarantee period.
12.4. The guarantee applies only to Products delivered in the Netherlands, unless explicitly otherwise provided by parties.
- Liability for a culpable failure to perform the agreement
- The liability of Supplier for a culpable failure by Supplier to perform its obligations towards Purchaser, is limited to damages for defective Products to which the guarantee of article 12 applies. Supplier is only liable for compensatory damages, i.e. compensation for the portion of the agreement not performed.
- Under no circumstances is Supplier liable for damage due to delay, indirect or consequential damage or damage based upon lost profits, damages as a result of inadequate cooperation, information or materials by Purchaser or other damages.
- The amount of damages to be paid by Supplier as a result of its culpable failure to perform the agreement shall in no event exceed 50% of the purchase price (excluding VAT).
- Liability for tort
14.1 Supplier is not liable for damages in tort by Supplier, its employees or its subordinates for which Supplier is statutorily liable, unless caused by intentional tort or gross negligence.
14.2 Under no circumstances shall the liability of Supplier exceed the amount paid under the business liability insurance of Supplier.
14.3. Purchaser shall indemnify Supplier against all claims:
- arising from the use by Supplier of products owned or controlled by Purchaser;
- caused by lack of sufficient safety measures at the premises of Purchaser;
- by third parties for damages which, if suffered by Purchaser, are not recoverable from Supplier under these general conditions;
- for infringement of patents, intellectual property rights, licenses and other rights of third parties as a result of or due to the use of data provided by Purchaser.
- Force Majeure
- Neither party is obligated to perform any obligations under the agreement in the event that it is prevented from doing so by a circumstance beyond its control and which, according to statute, case law and generally accepted principles, is also not a risk to be borne by that party.
- The following circumstances qualify as force majeure with respect to Supplier: labour strikes, traffic, transport or industrial failures, riots, state of war, default by suppliers of Supplier.
- Dissolution and suspension of an agreement
16.1. Supplier is entitled to dissolve an agreement with Purchaser and will not be liable for compensatory damages in the event that:
- Purchaser fails to perform any of its obligations arising from the agreement towards Supplier;
- assets of Purchaser are attached by the bailiff, Purchaser is granted moratorium on payment to creditors or is declared bankrupt;
- Supplier is unable to perform its obligations arising from any agreement as a result of force majeure;
- control over the company of Purchaser alters.
16.2. In the event that Purchaser fails to pay a claim immediately due and payable on the agreed-upon date of payment, Supplier is entitled to suspend further performance of any agreement between Supplier and Purchaser until performance takes place, without prejudice to its other rights of suspension under the law. In the event that Purchaser fails to pay such a claim, all claims by Supplier against Purchaser will also be immediately and entirely due and payable.
- All agreements with Supplier are governed solely by the laws of the Netherlands. All disputes shall be resolved in first instance by the court of competent jurisdiction in Utrecht.