General terms and conditions
DELIVERY CONDITIONS per 01-01-2018
From: Yart Factory B.V., Industrieweg 60 in Waalwijk (Netherlands), hereinafter referred to as: user
Article 1 Definitions
- In these general conditions the following terms are used in the following meaning, unless explicitly stated otherwise:
User: the user of the general conditions;
Buyer: the other party of user, acting in the exercise of profession or business;
Agreement: the agreement between the user and the buyer.
Article 2 General
- The provisions of these general terms and conditions apply to every offer and every agreement between the user and a buyer to which the user has declared these terms and conditions applicable, insofar as the parties have not expressly deviated from these conditions in writing.
- The present conditions also apply to all agreements with the user, for the execution of which third parties must be involved.
- The general terms and conditions of the buyer only apply if it has been expressly agreed in writing that they apply to the agreement to the exclusion of these conditions. In that case, any conflicting provisions in the general terms and conditions of the user and buyer will only apply between the parties if and insofar as they form part of the conditions of the user.
- If one or more provisions in these general terms and conditions are void or may be annulled, the other provisions of these general terms and conditions remain fully applicable. User and buyer will then consult in order to agree new provisions to replace the void or voided provisions, whereby if and as far as possible the purpose and intent of the original provision will be observed.
Article 3 Offers and tenders
- All offers are without obligation, unless a term for acceptance is mentioned in the offer.
- The quotations made by the user are without obligation; they are valid for thirty days, unless otherwise indicated. The user is only bound by the offers if the acceptance thereof is confirmed in writing by the buyer within thirty days.
- Delivery times in the quotations of the user are indicative and do not give the buyer the right to dissolution or compensation if this is exceeded, unless expressly agreed otherwise.
- The prices in the aforementioned offers and quotations are in Euros (€) and are exclusive of VAT and other government levies, as well as any transport and packaging costs, unless explicitly stated otherwise.
- If the acceptance deviates (on minor points) from the offer included in the quotation, the user is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the user indicates otherwise.
- A composite quotation does not oblige the user to deliver part of the goods included in the offer or quotation at a corresponding part of the stated price.
- Offers or quotations do not automatically apply to repeat orders.
Article 4 Execution of the agreement
- User will execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the current state of knowledge at that time.
- If and in so far required for the proper execution of the agreement, the user has the right to have certain work carried out by third parties.
- The buyer shall ensure that all data, of which the user indicates that they are necessary or of which the buyer should reasonably understand that these are necessary for the execution of the agreement, are provided to the user in time. If the data required for the execution of the agreement are not provided to the user in time, the user has the right to suspend the execution of the agreement and / or to charge the buyer the extra costs resulting from the delay according to the usual rates.
- The User is not liable for damage of any kind, because the User has assumed incorrect and / or incomplete information provided by the Buyer, unless this incorrectness or incompleteness should have been known to the User.
- If it has been agreed that the agreement will be executed in phases, the user can suspend the execution of the parts belonging to a following phase until the buyer has approved the results of the preceding phase in writing.
- The buyer indemnifies the user against any claims from third parties that suffer damage in connection with the execution of the agreement and which is attributable to the buyer.
Article 5 Delivery
- Delivery is made ex-factory of the user, unless stated otherwise.
- If delivery takes place on the basis of “Incoterms”, the “Incoterms” applicable at the time of the conclusion of the agreement will apply.
- The buyer is obliged to take delivery of the goods at the time that the user delivers them or has them delivered to him, or at the moment at which they are made available to him according to the agreement.
- If the buyer refuses to take delivery or is negligent with the provision of information or instructions that are necessary for the delivery, the user is entitled to store the goods at the expense and risk of the buyer.
- If the goods are delivered, the user is entitled to charge any delivery costs. These will then be invoiced separately.
- If the user requires information from the buyer in the context of the execution of the agreement, the delivery period starts after the buyer has made it available to the user.
- If the user has specified a delivery period, this is indicative. A specified delivery time is therefore never a fatal deadline. If a term is exceeded, the buyer must give the user notice of default in writing.
- The User is entitled to deliver the goods in parts, unless this has been deviated from by agreement or if the partial delivery does not have an independent value. The User is entitled to invoice the thus delivered separately.
- If it has been agreed that the agreement will be executed in phases, the user can suspend the execution of those parts belonging to a following phase until the buyer has approved the results of the preceding phase in writing.
- User reserves the right to deliver and invoice a maximum of 10% more or less than the agreed quantity in case of specially processed or assembled products for the buyer.
- Unless otherwise agreed in writing, the transport will take place at the risk and expense of the buyer. Even if the carrier has explicitly stipulated that all transport documents must state that all damage resulting from the transport is for the account and risk of the shipper.
Article 6 Samples and models
- If a sample or model has been shown or provided to the buyer, then it is presumed to have been provided as an indication without the item having to comply with it, unless it is expressly agreed that the item will correspond with it.
Article 7 Research, advertising
- The buyer is obliged to inspect the delivered goods at the time of delivery, but in any case within as short a time as possible. In doing so, the buyer should examine whether the quality and quantity of the delivered goods correspond with what has been agreed, or at least meets the requirements that apply to them in normal (trade) traffic.
- Any visible defects or shortages must be reported to the user in writing within fifteen days of receipt of the goods. Non-visible defects or shortcomings must be reported within three weeks of discovery but at the latest within 3 months after delivery.
- If a complaint is made in time pursuant to the previous paragraph, the buyer remains obliged to purchase and pay for the purchased items. If the buyer wishes to return defective goods, this shall be done with the prior written consent of the user in the manner indicated by the user.
Article 8 Fees, price and costs
- If the user has agreed upon a fixed sales price with the buyer, the user is nevertheless entitled to increase the price.
- The user may, inter alia, pass on price increases if, between the time of the offer and execution of the agreement, significant price changes have occurred in respect of, for example, exchange rates, wages, raw materials, semi-finished packaging material.
- The prices used by the user are exclusive of VAT and any other levies, as well as any costs to be incurred within the framework of the agreement, including shipping and administration costs, unless otherwise indicated.
Article 9 Amendment of the agreement
- If during the execution of the agreement it appears that for a proper implementation it is necessary to change and / or supplement the work to be performed, the parties shall adjust the agreement accordingly in good time and in mutual consultation.
- If the parties agree that the agreement will be amended and / or supplemented, the time of completion of the execution can be influenced as a result. User will inform the buyer as soon as possible.
- If the amendment and / or supplement to the agreement has financial and / or qualitative consequences, the user will inform the buyer about this in advance.
- If a fixed rate has been agreed, the user will indicate to what extent the change or supplement to the agreement results in an exceeding of this fixed rate.
- Contrary to the provisions in this article, the user will not be able to charge additional costs if the change or supplement is the result of circumstances that can be attributed to him.
Article 10 Payment
- Payment must be made within 30 days of the invoice date, unless stated otherwise, in a manner to be indicated by the user in the currency in which the invoice is made. Objections to the amount of the invoices do not suspend the payment obligation.
- If the buyer fails to pay within the 30-day period, the buyer is legally in default. The buyer will then owe an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest will apply. The interest on the due and payable amount will be calculated from the moment that buyer is in default until the moment of payment of the full amount.
- In the event of liquidation, bankruptcy, attachment or suspension of payment of the buyer, the claims of the user against the buyer will be immediately due and payable.
- User is entitled to have the payments made by the buyer go first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest.
User can, without being in default, refuse an offer of payment if the buyer designates a different order for the allocation. The User can refuse full payment of the principal sum if the outstanding and accrued interest as well as the costs are not also paid.
Article 11 Retention of title
- All items supplied by user, including any designs, sketches, drawings, films, software, (electronic) files etc. remain the property of the user until the buyer has fulfilled all the following obligations from all agreements concluded with the user. The goods delivered by the user remain the property of the user until they have been paid in full. With regard to the retention of title, all deliveries, even if they originate from different orders, are considered as a whole and therefore remain the property of all goods, including those of which the invoices have been paid to the user until the time at which all goods delivered by the user have been paid in full by the buyer.
- The buyer is not entitled to pledge the goods falling under the retention of title or to encumber them in any other way.
- If third parties seize goods delivered under retention of title or wish to establish or assert rights thereon, the buyer is obliged to notify user as soon as reasonably may be expected.
- The buyer undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection on first request.
- Goods delivered by the user, which are subject to retention of title pursuant to the provisions of 1. of this article, may only be sold on within the framework of normal business operations and may never be used as a means of payment.
- In the event that user wishes to exercise his property rights as referred to in this article, the buyer now gives unconditional and non-revocable consent to the user or third parties to be designated to enter all those places where the properties of the user are located and which to take back.
Article 12 Guarantee
- The User guarantees that the items to be delivered meet the usual requirements and standards that can be set for them and are free of any defects.
- The guarantee mentioned under 1 shall also apply if the goods to be delivered are intended for use abroad and the purchaser has explicitly notified the user of this use in writing at the time of entering into the agreement.
- The guarantee mentioned under 1. is valid for a period of 3 months after delivery.
- If the goods to be delivered do not comply with these guarantees, the user shall replace the goods within a reasonable period after receipt thereof or, if return is not reasonably possible, replace written notice regarding the defect by the buyer, at the choice of the user. for recovery. In the event of replacement, the buyer already agrees to return the replaced item to the user and to provide the property to the user.
- The guarantee referred to here does not apply if the defect arose as a result of improper or improper use or if, without the written consent of the user, buyer or third parties, changes have been made or attempted to apply the goods or used them for purposes for which the case is not intended.
- If the guarantee given by the user concerns a matter that was produced by a third party, the guarantee is limited to that provided by the manufacturer of the item.
Article 13 Collection costs
- If the buyer is in default or fails to comply with one or more of his obligations, then all reasonable costs incurred in obtaining payment out of court will be borne by the buyer. If the buyer defaults in the timely payment of a sum of money, he will forfeit an immediately due and payable fine of 15% on the amount still owing. This with a minimum of € 150.
- If the user has incurred higher costs, which were reasonably necessary, these will also qualify for reimbursement.
- Any reasonable judicial and execution costs incurred will also be borne by the buyer.
- Buyer owes interest on the collection costs incurred.
Article 14 Suspension and dissolution
- User is entitled to suspend the fulfillment of the obligations or to dissolve the agreement if:
– Buyer does not or not fully comply with the obligations from the agreement.
– after the conclusion of the agreement user learns of circumstances giving good ground to fear that the buyer will not fulfill the obligations. In the event that there is good reason to fear that the buyer will only partially or improperly fulfill his obligations, the suspension is only permitted insofar as the shortcoming justifies it.
– Buyer has been requested at the conclusion of the agreement to provide security for the fulfillment of his obligations under the agreement and this security is not provided or is insufficient. As soon as security has been provided, the authority to suspend will lapse, unless this payment has been unreasonably delayed.
- Furthermore, the user is authorized to dissolve the agreement (or have it dissolved) if circumstances arise which are of such a nature that fulfillment of the agreement is impossible or, according to standards of reasonableness and fairness, can no longer be required or if other circumstances arise which nature that unaltered maintenance of the agreement can not reasonably be expected.
- If the agreement is dissolved, the user’s claims against the buyer will be immediately due and payable. If the user suspends fulfillment of the obligations, he retains his rights under the law and agreement.
- User always reserves the right to claim compensation.
Article 15 Return of goods made available
- If the user has made goods available to the buyer in the execution of the agreement, the buyer is obliged to return the delivered goods within 14 days in their original state, free of defects and in full. If the buyer fails to meet this obligation, all resulting costs are for his account.
- If the buyer, for whatever reason, after being warned to do so, still remains in default with the obligation mentioned under 1., the user has the right to recover the resulting damage and costs, including the costs of replacement, from the buyer.
Article 16 Liability
- If the goods delivered by the user are defective, the liability of the user towards the buyer is limited to what is regulated in these conditions under “Guarantees”.
- If user is liable for direct damage, this liability is limited to a maximum of twice the amount of the invoice, at least that part of the agreement to which the liability relates, at least up to a maximum of € 100 (in words: one hundred euros). The liability is at all times limited to a maximum of the amount of the benefit to be paid by the insurer of the user in the occurring case.
- Direct damage is exclusively understood to mean:
– the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions;
– any reasonable costs incurred to have the faulty performance of the user comply with the agreement, unless this defect can not be attributed to the user;
– reasonable costs incurred to prevent or limit damage, insofar as the buyer demonstrates that these costs have led to the limitation of direct damage as referred to in these general terms and conditions.
- User is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business stagnation.
- The limitations of liability for direct damage included in these conditions do not apply if the damage is due to intent or gross negligence of the user or his subordinates.
Article 17 Risk transition
- The risk of loss or damage to the products that are the object of the agreement passes to the buyer at the time when these are delivered to the buyer legally and / or factually and thus in the power of the buyer or of a buyer third parties are brought.
Article 18 Force majeure
- The parties are not obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault, and that neither under the law, a legal act or generally prevailing opinions are for their account.
- Force majeure is understood in these general conditions in addition to what is understood in the law and jurisprudence, all external causes, foreseen or unforeseen, on which the user can not exert influence, but as a result of which the user is unable to fulfill his obligations. to come. Work strikes in the user’s company are included.
- User also has the right to invoke force majeure if the circumstance that prevents (further) performance occurs after user should have fulfilled his obligation.
- During the period that the force majeure continues, the parties can suspend the obligations under the agreement. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without any obligation to compensate the other party for damage.
- Insofar as at the time of force majeure the user has now partially fulfilled his obligations under the agreement or will be able to comply with them, and the part that has been fulfilled or to be fulfilled is assigned independent value, the user is entitled to comply with the already fulfilled or to be fulfilled. part of invoicing separately. Buyer is obliged to pay this invoice as if it were a separate one agreement.
Article 19 Indemnities
- The buyer indemnifies the user against claims of third parties with regard to intellectual property rights on materials or data provided by the buyer, which are used in the execution of the agreement.
- If the buyer provides user with information carriers, electronic files or software etc., the latter guarantees that the information carriers, electronic files or software are free of viruses and defects.
Article 20 Intellectual property and copyrights
- The buyer guarantees the user that by the fulfillment of the agreement and in particular by the multiplication or publication of the items received from the buyer such as copy, set, models, drawings, photographic recordings, films, information carriers, computer software, data files etc. no violation is made of rights that third parties can assert under the Dutch Copyright Act 1912 or other national, supranational or international regulations in the field of copyright or the right of industrial property or the law with regard to the wrongful act. The buyer indemnifies the user both in and out of court for all claims that third parties can enforce pursuant to the law or regulations referred to.
- If reasonable doubt arises or continues to exist regarding the correctness of the rights claimed by third parties as referred to in paragraph 1 of this article, the user is authorized, but not obliged, to suspend the fulfillment of the agreement until such time as irrevocably, it is established that the user does not violate these rights by the fulfillment of the agreement. After that the user will still execute the order within a reasonable period.
- Without prejudice to the other provisions in these general terms and conditions, the user reserves the rights and authorities for the user pursuant to the Copyright Act.
- Any designs, sketches, drawings, films, software and other materials or (electronic) files created by the user in the context of the agreement shall remain the property of the user, regardless of whether they go to the buyer or to third parties unless otherwise agreed.
- All documents provided by the user, such as designs, sketches, drawings, films, software, (electronic) files, etc., are exclusively intended for use by the buyer and may not be reproduced by him without the user’s prior consent, be made public or brought to the knowledge of third parties, unless the nature of the documents provided dictates otherwise.
- User reserves the right to use the knowledge gained by the execution of the work for other purposes, in so far no confidential information is brought to the knowledge of third parties.
Article 21 Confidentiality
- Both parties are obliged to keep confidential all confidential information that they have obtained from each other or from another source within the framework of their agreement. Information is considered confidential if this has been communicated by a party or if this results from the nature of the information.
- If, on the basis of a statutory provision or court order, the user is obliged to provide confidential information to third parties designated by the law or the competent court, and user can not rely on a legal or competent authority in this matter. court recognized or permitted right of change, then user is not obliged to compensation or compensation and the other party is not entitled to dissolution of the agreement on the basis of any damage, arising.
Article 22 Non-takeover personnel
- During the term of the agreement, as well as one year after the termination thereof, the buyer will not in any way, except after proper business consultation has taken place with the user, employees of the user or of companies on which the user has invoked the execution of this agreement. and who are or have been involved in the performance of the agreement, take on the service or otherwise, directly or indirectly, letting them work for themselves.
Article 23 Disputes
- The judge in the place of business of the user is exclusively authorized to take cognizance of disputes, unless the cantonal judge is competent. Nevertheless, the user has the right to submit the dispute to the competent court according to the law.
- The parties will first appeal to the court after they have made every effort to settle a dispute by mutual agreement.
Article 24 Applicable law
- Dutch law applies to every agreement between the user and the buyer. The Vienna Sales Convention is explicitly excluded.
Article 25 Change, explanation and location of the conditions
- These conditions are stated on our website: https://www.yartfactory.nl/en/term-of-delivery
- In the event of an explanation of the content and scope of these general terms and conditions, the Dutch text will always be decisive.
- Applicable is always the last registered version or the version that applied at the time of the conclusion of the agreement.