GENERAL TERMS AND CONDITIONS OF DjaCo B.V., AMSTERDAM
1. Scope of application
1.1 These general conditions apply to all offers of DjaCo B.V., also trading under the name ‘Rinascimento’, hereinafter referred to as: ‘Seller’, and all purchase and sales agreements concluded between Seller and the contracting party, hereinafter referred to as: ‘Buyer’. Deviations from these terms and conditions will only be valid if confirmed by Seller in writing.
1.2 The applicability of other general or specific terms and conditions, whether or not employed by Buyer, is expressly excluded, unless expressly confirmed by Seller.
2. Offers and acceptance of orders
2.1 All offers of Seller are without obligation, unless they have a deadline for acceptance.
2.2 The offers are based on the information provided by Buyer along with the request for an offer and the prices prevailing on the offer date.
2.3 If Buyer has accepted an offer subject to contract of Seller, Seller has the right to revoke the offer within five working days of receipt of the acceptance.
2.4 Seller shall only be bound by an order of Buyer if and in so far as the order has been confirmed in writing by Seller. However, Seller is entitled to deliver the product or goods and perform the agreement without an order confirmation.
2.5 Buyer must check an order confirmation received from Seller and notify Seller in writing of any errors within four days of the date of dispatch.
Should Buyer fail to notify Seller within the prescribed period, Buyer shall be deemed to consent to the order confirmation.
2.6 The provisions laid down in 2.5 shall not apply if Buyer gave an assignment by telephone that must be processed immediately at the request of Buyer. An order confirmation issued by Seller under these conditions is for information purposes only.
2.7 Seller shall not be bound by any obvious clerical errors in offers or order confirmations that are recognised as such by those working in the field. Seller is always entitled to fix any said clerical errors.
3. Changing and cancelling orders
3.1 Should Buyer wish to cancel or change the order, Buyer must notify Seller of this in writing, by registered letter or by email or fax with delivery receipt.
3.2 Any cancellations or modifications desired by Buyer must have the express written consent of Seller, and will only be taken into consideration by Seller if Seller has received the request for cancellation or modification within 8 days of the date of the order confirmation, and if Seller has not yet started performing the agreement.
3.3 Upon cancellation of an order or part of an order, Seller is entitled to demand compensation from Buyer of 25% of the amount relating to the cancellation, without being obliged to demonstrate any damage, and without prejudice to the right to replace these damages with a claim for the actual damage.
3.4 An amendment of the order thus accepted by Seller can lead to amendment of the delivery date and/or the agreed prices.
3.5 If the billing address and/or the delivery address is changed, Buyer must notify Seller about this immediately, at least 8 days before the delivery date, specifying the exact and complete new address.
4. Deliveries
4.1 The delivery date specified by Seller is always approximate and can never be regarded as a final deadline, unless expressly agreed otherwise in writing. Exceedance of the delivery period shall never entitle Buyer to compensation, termination of the contract, non-performance or suspension of any obligation by Buyer, unless there is intent or gross negligence of Seller.
4.2 If the delivery date is postponed at the request of Buyer, any costs and losses arising therefrom for Seller shall be borne entirely by Buyer. The relevant cost specification provided by Seller shall be binding on Buyer.
4.3 If the goods should be delivered in a different way than usual at the request of Buyer, any additional costs shall be borne by Buyer.
4.4 Seller is allowed to deliver the goods in parts, and to invoice each partial delivery separately.
5. Risk
5.1 The goods are at the Buyer’s risk as soon as they have been delivered, or have been made available to Buyer.
5.2 The goods travel at Seller’s risk, unless expressly agreed otherwise.
5.3 If the goods are not taken delivery of by Buyer upon delivery / making available, they will be stored for the account and at the risk of Buyer.
6. Samples and images
6.1 Any samples shown and/or provided by Seller to Buyer are shown solely by way of illustration. The goods to be delivered may vary from the samples shown, unless it was expressly stated that delivery would be in accordance with the samples that were shown and/or provided.
6.2 Although the images and descriptions in our brochures, drawings, etc. have been prepared with the utmost care, they serve merely to give a general idea. Buyer is expected to understand that the goods to be delivered may differ from this to a small extent. Any such deviations, and any deviations in quality and colour, of the delivered goods shall in no event constitute a reason for Buyer to terminate the agreement and/or to refuse to take delivery of the goods and/or to suspend payment.
7. Prices and price changes
7.1 The prices agreed when concluding the agreement are based on the information known at the time of its conclusion. The prices include transport costs, unless explicitly stated otherwise, and exclude VAT.
7.2 If, after the conclusion of the agreement, a change occurs in any of the cost-determining factors, Seller is entitled to amend the prices accordingly. Such price changes, unless the price changes represent an increase of more than 15%, do not entitle Buyer to terminate the agreement.
7.3 Cost-determining factors include in any case: cost of materials, wages, employer-paid social security contributions, levies, taxes, carriage charges, transport costs, insurance premiums and currency exchanges.
8. Provision of security
8.1 Seller is always entitled to, while or after entering into the contract, prior to executing or further executing the contract, require security from Buyer that Buyer will fulfil its obligations towards Seller within a reasonable period.
9. Suspension and termination
9.1 If Buyer fails to fulfil its obligations towards Seller, either on time or properly, Buyer shall be in default without notice and Seller will have the right to suspend its part of the performance of the contract until Buyer has fulfilled its obligations, or – at the option of Seller – to terminate the agreement (fully or in part) by giving written notice or a court order to do so.
9.2 Buyer will also be entitled to suspend or terminate the agreement, either in full or in part, if circumstances have come to its attention giving good reason to believe Seller will not fulfil its obligations towards Buyer.
9.3 Suspension or termination do not entitle Buyer to any compensation, and do not affect any other rights accruing to Seller, such as the right to take back goods delivered under retention of title, and the right to full compensation.
9.4 In the event of partial or full termination of the agreement, Buyer shall reimburse Seller for any lost revenue.
10. Retention of title
10.1 The goods delivered by Seller shall remain the property of Seller until Buyer has fulfilled all its obligations under all agreements concluded with Seller, in so far as these obligations relate to consideration with regard to goods delivered or to be delivered and/or any receivables (costs) arising from non-performance by Buyer of the agreement(s).
10.2 Goods delivered by Seller subject to retention of title may only be sold on by Buyer in connection with its normal business activities. Buyer is not authorised to pledge the delivered goods or establish or assert any right to them.
10.3 If third parties wish to establish or assert any right to the goods supplied under retention of title, Buyer is obliged to immediately inform Seller of this.
10.4 If Buyer fails to fulfil its obligations or Seller has good reason to suspect that Buyer will not do so, or if there is a situation as referred to under Clause 9, Seller is entitled to remove (or have removed) the goods delivered under retention of title from Buyer, or third parties that are holding the goods for Buyer. Buyer is obliged to fully cooperate (either itself or through its agents) under penalty of a fine of 10% of the amount owed by Buyer to Seller, for each day that Buyer or said third party fail to cooperate.
10.5 Buyer is obliged to insure the goods delivered under retention of title and keep them insured against risks of fire, theft, storm and water damage. Buyer is not permitted to pledge its claims under the aforementioned insurance to third parties or to grant them as security to third parties.
Payments relating to damage and loss to the thus delivered goods are in lieu of the goods themselves.
11. Payment
11.1 Payment must be made, without deduction or set-off, within 10 days of the invoice date, unless a different payment term has been agreed in writing.
11.2 The payment obligations of Buyer shall be immediately due and payable in the event that Seller becomes aware of circumstances giving it good reason to fear that Buyer will not be able to meet its payment obligations.
11.3 If Buyer fails to pay within the prescribed payment period of 10 days, Buyer is legally in default and Seller is entitled, without requiring a notice of default to that effect, to charge Buyer an interest rate of 2% per month from the due date until the date of payment in full, where a part of a month is counted as a month.
11.4 Buyer shall also owe extrajudicial costs from the due date, to an amount of 15% of the principal amount, with a minimum of EUR 250. If Seller demonstrates it has incurred higher costs, including any legal costs, that were necessary to collect the amount owed by Buyer to Seller, these costs must also be paid by Buyer.
11.5 Payments made by Buyer are always considered to be payment, first of all interest and charges due and subsequently the longest outstanding invoices, even if Buyer indicates that payment is for a later invoice.
12. Complaints
12.1 Purchaser is obliged to check the delivered goods immediately upon delivery as to whether they comply with what was agreed, and for any shortcomings or visible damage based on the order confirmation issued by Seller.
12.2 Complaints regarding models forms, quantities and sizes must be made by Buyer within 48 hours after delivery of the goods, and all other complaints within 8 days after delivery of the goods, by registered letter. Once these time limits have been exceeded, complaints will no longer be dealt with, and Buyer is deemed to have unconditionally accepted the delivery.
12.3 Buyer will not be able to assert any claim against Seller if Buyer has modified or processed the goods or passed them on to a third party for processing or modification. Neither will Buyer be able to assert any claim against Seller if Buyer has stored or saved the delivered goods in an incorrect or unsound manner. At the request of Seller, after submitting a complaint, Buyer must provide further information concerning the method of storage of the goods delivered by Seller to which the complaint relates.
12.4 Buyer must notify Seller by registered letter of any non-visible defects within 8 days after their discovery, but no later than 6 months after delivery of the goods concerned.
12.5 Seller retains the right to remedy the faulty goods or have them remedied, by replacing them with other goods, or – at the discretion of Seller – the right to compensate Buyer up to the invoice amount of the faulty goods.
12.6 Faulty goods cannot be returned without the prior written approval of Seller. Returns are for the account and at the risk of Buyer. Unstamped shipments will not be accepted by Seller.
12.7 Complaints do not entitle Buyer to suspend payment of any invoice from Seller.
13. Force majeure
13.1 In the event of force majeure, Seller is entitled to suspend execution of the agreement until the cause of the force majeure has ended.
13.2 If the force majeure lasts longer than 3 months, or if it is established that the force majeure is of a lasting nature, Seller and Buyer may come to an arrangement concerning the termination of the agreement and the associated consequences, without Seller being liable for any damages on that account.
13.3 Force majeure means any unexpected reason or circumstance that Seller cannot reasonably be expected to be responsible for. Force majeure shall include, at least: delay or failure by suppliers, transport problems, operational breakdowns, excessive absenteeism, strikes, outages of utilities companies (public or otherwise), trade union and/or government measures or interference, civil commotion, fire and water damage.
13.4 Seller shall immediately inform Buyer of any case of force majeure.
14. Liability
14.1 Seller shall not be liable to Buyer for any direct or indirect loss or damage and/or any loss arising out of or related to the goods delivered by Seller, or the mode of delivery, unless Buyer proves that the damage or loss is due to wilful misconduct or gross negligence on the part of Seller.
14.2 If Seller is held liable by a third party for any damage and/or loss it is not liable for under the contract with Buyer and/or these terms and conditions, Buyer shall fully indemnify Seller and pay Seller everything Seller is required to pay to said third party, as well as any relevant costs incurred for assistance (legal or otherwise).
14.3 However, Seller shall in no event be liable for any damage or loss in the form of lost turnover and/or trading loss and/or consequential loss or damage.
14.4 Notwithstanding the provisions of this Clause 14 (Liability), Seller shall never be liable for an amount higher than the agreed price of the delivered goods which gave rise to the damage or loss.
14.5 In all cases where Buyer is obliged to indemnify Seller under this Clause 14 (Indemnity), Buyer is also obliged to assist and indemnify Seller in legal proceedings at Seller’s first request.
14.6 The right to claim compensation expires after one year from the invoice date.
15. Disputes and applicable law
15.1 All agreements between Buyer and Seller are governed exclusively by Dutch law. The Convention on the International Sale of Goods (CISG; the Vienna Convention), as it entered into force for the Netherlands on 1 January 1992 shall not apply.
15.2 All disputes arising between Seller and Buyer will be brought before the competent court in the district where Seller has its registered office. However, Seller also retains the right to have Buyer summoned to appear before the competent court according to the law.