TERMS AND CONDITIONS

General terms and conditions of sale and delivery M.D. Mattings B.V. trading under MD-Entree in NL-Genemuiden

These general terms and conditions of sales and delivery have been filed at the Chamber of Commerce and Factories in Zwolle in April 2013 under number 05064830.

Article 1: General

  1. These general terms and conditions of sale and delivery are a part of every offer and every agreement between M.D. Mattings B.V. trading under MD-Entree, hereinafter "seller", and any other party, for which the seller has declared these terms and conditions to be applicable, except if and insofar as parties have explicitly and in writing agreed otherwise than these terms and conditions, wherewith these terms and conditions shall fully apply to the remaining.
  2. The applicability of the terms and conditions of the other party is explicitly excluded, unless parties have agreed otherwise in writing. If the general terms and condition of parties are simultaneously applicable, it holds that if provisions in the general terms and conditions of seller and the other party are contrary, the provisions in the general terms and conditions of seller shall prevail.
  3. If one or more provisions in these general terms and conditions are void or may be void, the remaining provisions of these general terms and conditions remain effective.
  4. Delivery includes in any case: execution of work, providing services and the actual delivery. The term "ex-factory, unloaded unpacked" has the definition as stated in the Incoterms 2000.

Article 2: Quotes

  1. The quotes offered by the seller are non-binding. The quotes offered by the seller are effective for 30 days after the quote date, unless indicated otherwise.
  2. The prices presented in the quote are exclusive of VAT, government levies as well as excluding transport, shipment, administration and packaging costs, unless this is explicitly agreed otherwise.

Article 3: Establishing agreements

Agreements resulting from a quote provided by the seller will only come into effect at the moment that the seller confirms an order in writing by way of an order confirmation or, in the absence thereof, by delivery and/or an invoice.

Article 4: Delivery

  1. If and insofar as parties have not explicitly and in writing agreed otherwise, a delivery to the other party will occur ex-factory of the contractor, unloaded, unpacked.
  2. The other party is required to take receipt of the bought and/or processed goods at the moment these are delivered to them or at the moment these are made available to them in accordance with the agreement. If the other party refuses to take receipt or is negligent in the provision of information or instructions that are necessary for the delivery, then the goods will be stored at the expense and risk of the other party. In that case, the seller will charge the additional costs, in any case including the storage costs, to the other party. After a period of 4 weeks after the expiration of the agreed delivery date, the seller is entitled to dissolve the agreement and may sell the goods under the agreement to third parties. The costs involved in this and any losses in profit for the goods shall be at the expense and risk of the other party.
  3. Seller retains the usual tolerances of approximately 5% for amounts and technical information, such as sizes, weights, colour (fastness), bowing, finish of the pool (shading) and such.
  4. Seller is entitled to deliver a maximum of 5% more or less than the amounts specified by them, excluding custom-made products. The actual delivered amount will be invoiced.

Article 5: Delivery date

  1. An agreed delivery date is not a fixed deadline, unless expressly agreed otherwise. In the event of late delivery, the other party shall therefore be obliged to provide the seller with written notice of default and allow for a term.
  2. In the event of a sale including layout on demand, the agreed term applies, if the other party has not demanded a term, they are in breach and the seller is entitled to dissolve the agreement with the right of compensation.

Article 6: Partial deliveries

The seller is entitled to deliver the bought and/or processed goods in parts. This does not apply if the partial delivery has no independent value. If the goods are delivered in parts, the seller is entitled to invoice each separate part.

Article 7: Samples, models and examples

If the seller has supplied a model, sample, drawing, design or example and/or other data to the other party, these are expected to have been supplied as an indication: the capacities of the goods to be delivered may differ from the sample, model, design or example, unless it has been agreed explicitly and in writing to deliver these in accordance with the shown or supplied sample, model, design or example.

Article 8: Data supplied by the other party

It is expected that the design drawings, working plans, detail plans, models, photographical recordings, samples, designs, logos, supplied measurements, amounts, patterns, colours, materials and/or other data supplied to the seller by the other party are correct and free of intellectual property rights, without seller being required to investigate further.

Article 9: Defects; complaint terms

  1. The other party must (have) examine(d) the bought and/or processed goods upon delivery. Hereby, the other party must at least check whether the delivered goods are in accordance with the agreement, namely:
    • whether the correct goods have been delivered;
    • whether the delivered goods are in accordance with the agreed with regard to quantity;
    • whether transport has damaged the goods, if delivery has taken place other than ex-factory, unloaded, unpacked.
  2. If visible defects or damage are concluded, the other party must notify the seller in writing within 7 days after delivery.
  3. The other party must notify the seller in writing of invisible defects  within 7 days after discovery, and at any rate within 3 months after delivery.
  4. If the defects or damages are unacceptable, the other party is entitled solely to repair of the goods or the completion of the shortage. Seller may choose to replace the goods or to completely or partially dissolve the agreement against (partial) return of the delivered goods and against (partial) restitution of the purchase price, if there are objections to repair, this is solely for the evaluation of the seller. The other party is only entitled to replacement if repair of the goods is impossible, this is solely for the evaluation of the seller.
  5. Complaints about the invoice must be made to the seller within 14 days after the invoice date, in failure thereof the invoice will be considered to have been approved.

Article 10: warranty, exoneration and liability

  1. Seller guarantees that the goods delivered by them are free of material or manufacturing faults during a period of six months after delivery. Any liability for defects appearing afterwards is excluded.
  2. Seller is not liable for costs, damages (expressly including consequential damage and business damage) and interests such as direct or indirect results of design, material, manufacturing and other errors of the goods delivered by them, unless the other party has observed the requirements stated in article 9 and the other party has notified the seller of the defects in a timely manner with observance of the provisions in article 9 above.
  3. Seller is never liable for damages to the offered goods as direct or indirect result of the handling/processing of the other party. 
  4. Seller cannot be held liable for the damage resulting from the (improper) use of the bought goods. This includes, without restrictions, with any use in violation of the technical data, gluing, stapling or by any other means attaching the bought goods to the soil or to a wall and bringing the bought goods into contact with abundant fluids, combustible materials or lipids.
  5. If goods show material, manufacturing or other damages or defects that fall outside the usual tolerance as stated in article 4, paragraph 3 and liability of the seller for these defaults is not excluded, the other party has the exclusive right to repair of the goods or completion of the shortage; seller may choose to replace the goods or to partially or completely dissolve the agreement against (partial) return of the delivered goods and (partial) restitution of the purchase price when repair or replacement leads to objections or is impossible, this solely for the evaluation of the seller. If the other party desires repair or replacement of defects or shortages and the liability of the seller is not excluded, the other party must make the goods to be repaired or replaced freely available to the seller without prejudice to the right of the seller to invoke the provisions above mentioned in this article.
  6. The other party can only return goods after written permission from the seller. If the other party returns the goods in breach of the aforementioned, the goods will be kept at the disposal for the other party at the expense and risk of the seller, without recognition of the liability.
  7. Any liability of the seller is in any case  limited to a sum for which the seller's insurance in the occurring case gives claim to compensation. If the seller's insurance does not give claim to compensation in a certain case, the liability of seller concerning this is in any case limited to the invoice value with regards to the agreed sale and/or delivery of goods, services, processingand/or advice by seller.
  8. Despite that which is stipulated in paragraphs 1 and 2 above, seller is not liable for any damage caused by incorrect or negligent handling of the goods delivered by the seller. The term incorrect handling includes (having) the other party and/or third parties carry out repairs. Seller is also no longer liable if goods have been sliced, cut or in any other way processed, edited, used or are damaged.
  9. Seller is never liable for the applied substances if, after establishing the agreement, it turned out that the applied substances have been prohibited by law, cause irritation to the skin or are harmful to the environment.
  10. Seller is not liable for damage caused by incorrect or late delivery, nor for the consequential damages (such as business damage in the form of loss of income, lost savings, damages through business interruptions and other consequential damages). The other party shall have to take out insurance for this if they so wish.
  11. The liability limitations in this article do not apply to damages caused by willful acts or gross negligence of the seller or its  managing subordinates.
  12. Seller does not guarantee that the goods are suitable for the purpose for which the other party intends them, not even if the seller has been made aware of this purpose. This is only the case when the seller has guaranteed this in writing.

Article 11: Liability for complaints consumer

  1. The other party is entitled to restitution of damages if this arises from an agreement of the consumer due to a defective or faulty product, unless:
    • other party was aware or should have been aware of the defect; this includes in any case, but is not limited to, visible defects which the other party has not made notification of within 8 days after delivery;
    • the defect occurred after delivery of the product to the other party; this includes in any case, but is not limited to, damages caused during transport or in the storage facility of the other party or of buyers in downstream market position;
    • the defect is caused by incompetent use by the other party, other buyers in a downstream market position, the consumer or third parties;
    • the product did satisfy the agreement with the consumer, so the other party or other buyers in a downstream market position have wrongly proceeded to repair, replacement of the product or otherwise restitution of damages to the consumer;
    • the consumer has notified seller of the defect too late, this being more than 2 months after the discovery or the possibility of discovery, so the final buyer has wrongly proceeded to repair, replacement of the product or otherwise restitution of the damages to the consumer;
    • a fault of which the other party has acknowledged the existence to its other party or consumer while the seller/producer has not made this same acknowledgement to other party;
    • it concerns a property of which the other party has acknowledged the existence to its other party or consumer while seller has not made this same acknowledgement to other party; the damages to be compensated are then limited to the sum which they might have been able to claim if this acknowledgement had not taken place;
    • the damages concerned fall under the product liability that are for the account of the other party under law;
    • the taking of recourse would be in breach of the principles of reasonableness and fairness. This includes, but is not limited to, the delivery of a batch of obsolescent goods against a price that is lower than the catalogue purchase price.
  2. Damages, as referred to in this article, are understood to be: costs of repair or replacement, costs that involve repair or replacement, transport costs and man hours, costs of defence, costs of terminating the agreement, the difference between the original purchase price the consumer paid and the final purchase price after price reduction in case of a matching price reduction, the damages sum that is paid in case of paid damages, if these costs are reasonable and were reasonably permissible to have been made.
  3. Other party is obliged to provide to the seller all documents, files and other papers concerning the complaint, the handling of this and the final solution (replacement, repair etc.) as soon as they institute redress actions against seller.
  4. Seller is expressly not liable for damages, based on non-conformity, which have been caused by the other party, other buyers in a downstream market position, third parties or the consumer.
  5. Seller is never liable for consequential damages that directly or indirectly follow from the goods delivered by them. This includes damages to human, animal and other matters.
  6. The liability limitations in this article do not apply to damages caused by willful acts or gross negligence of the seller.

Article 12: Prices

Seller is entitled to pass on price increases, unless price increases of more than 5% have occurred between the moment of offer/acceptance and delivery with respect to for example exchange rates, wages, material costs, semi-manufactured products, packing material or transport costs.

Article 13: Payment

  1. Insofar as no deviating payment conditions have been agreed upon, the net value of all payments must be paid within 30 days of the invoice date in the agreed upon currency via a bank transfer to the bank account provided by the seller.
  2. After expiration of the applicable payment term, the other party shall be in default without notice of default needing to be served. From the moment of default, the other party owes a default interest of 1% of the amount payable per month or a part thereof, unless the legal interest or trading interest is higher, in which case the highest interest rate applies.
  3. In case of liquidation, (filing for) bankruptcy, admission of other party into the legal debt restructuring on the basis of the Dutch Natural Persons Restructuring Act [Wet schuldsanering natuurlijke personen], repossession or (temporary) moratorium of payment, the receivables of seller from the other party shall be immediately due and payable.
  4. Payment must take place without the other party being entitled to apply any reduction to the payment, suspend the payment or deduct the payment from a receivable to seller.
  5. Payments made by the other party shall always be used to settle in the first place all payable interests and costs and in the second place the longest outstanding payable invoices, even if other party states that payment relates to a later invoice.

Article 14: Collection costs

If the other party fails to comply or is in default of complying with one or more of its obligations, the costs of the collection of extra-judicial charges are for the expense and risk of the other party. The collection costs are calculated according to the collection rate advised by the Netherlands Bar Association in collection matters, with a minimum of € 350.00. If seller incurred higher costs, which were reasonably necessary, these will also be eligible for compensation.

Article 15: Retention of title

  1. The goods delivered by the seller remain the property of the seller until the other party has complied with all of the following obligations from all of the purchase agreements taken out with seller:
    • the compensation(s) regarding the delivered or to be delivered good/goods themselves;
    • the compensation(s) regarding the services delivered or to be delivered as per the purchase agreement(s);
    • any receivables due to non-compliance with (one of) the purchase agreement(s) by the other party.
  2. Goods delivered by the seller, which belong to the retention of title as per paragraph 1, may only be resold or processed in association with normal business operation.
  3. If the other party defaults on its obligations or there is a well-founded fear that it will do so, the seller is entitled to remove delivered goods on which the retention of title applies as referred to in paragraph one, or have these removed from the other party or a third party keeping the good for the other party. The other party is obliged to cooperate under penalty of a fine of 10% of the amount owed by it per day.
  4. If third parties want to exercise or have exerted any right to the goods delivered under the retention of title, the other party is obliged to immediately notify the seller.
  5. The other party is obliged:
    • to insure and keep insured the goods delivered under the retention of title against fire, explosion and water damage and against theft and to provide the policy of this insurance for inspection.
    • to pledge all claims on insurance by the other party with regard to the goods delivered under the retention title to the seller upon seller's first request as is prescribed by article 239 Book 3 of the Dutch Civil Code;
    • to hand over to the seller all the receivable claims that are owed to the other party by its clients as a result of the resale of goods delivered under the retention of title upon seller's first request as is prescribed by article 239 Book 2 of the Dutch Civil Code;
    • to mark the goods delivered under the retention of title as the property of the seller;
    • to otherwise cooperate with all reasonable measures that seller wishes to take to protect its property right with regard to goods and which do not unreasonably impose on the normal operation of other party's business.
  6. Buyer may enter into an agreement with a third party, in order for them to pay the purchase price and therefore subrogate them for purposes of the seller’s receivable. Upon payment by a third party, which is subrogated for purposes of the seller's receivables, the retention of title does not lapse.
  7. By subrogation as referred to in paragraph 6, seller delivers the retention of title of the goods of which the third party has paid the purchase price to the subrogated third party. From the time of subrogation, the buyer holds the described goods for the subrogated third party.
  8. Subrogation in the acting by and transferal of retention of title for a third party as referred to in paragraphs 6 and 7 shall have no bearing on buyer's right to hold seller liable if the seller defaults in any way in the compliance with the agreement concluded between them.
  9. For deliveries to other parties in Germany, the extended retention of title applies.

Article 16: (Intellectual) property rights

  1. Drawings, models, photographic materials, samples, designs, logos, measurements provided, amounts, patterns, colours, templates, materials and/or other examples will be and remain, unless agreed otherwise in writing, the property of seller even if costs are charged for this to the other party and, without written permission thereto, may not be made available, provided for inspection, altered, copied or used, and announcements may not be made about these to third parties. They must immediately be returned to the seller upon its first request.  The intellectual property rights concerned shall benefit seller without prejudice.
  2. The drawings, models, photographical materials, samples, designs, logos, templates, moulds, materials etc. that are made available to seller by or via the other party will be returned to the other party upon its request and at its expense after completion of the agreement. Seller retains the right to postpone return thereof until all outstanding receivables of seller from (earlier or later) agreements have been paid.
  3. Seller is not liable for loss, damage or normal wear of the goods referred to in paragraph 2, unless in the case of a willful act or gross negligence of the seller or its managing subordinates.
  4. The other party guarantees towards seller that the execution of the order shall not breach any rights of industrial or intellectual property of third parties. The other party indemnifies seller against claims from third parties on these grounds.
  5. All patterns are the exclusive property of seller.

Article 17: Packaging

  1. If necessary, seller will use packaging. This packaging is always returnable packaging. The other party is obliged to return the packaging empty and in undamaged condition within 14 days after delivery and/or collection.  If the other party fails to comply with its obligation regarding the costs of packaging, all costs that result from this are at its expense and risk. Such costs include the costs of replacement, repair or cleaning.
  2. If the other party does not return the returnable packaging after a formal reminder within the term therein stated, seller is entitled to proceed to replacement and to charge the costs thereof to other party.
  3. If the other party accepts the goods from the transporting party, this shall be considered as proof that the packaging is in good condition, unless other party has made a notation of the opposite on the consignment note, statement or receipt.

Article 18: Termination of agreement

  1. The receivables of seller to the other party are immediately due and payable without need for any notice of default, if:
    • circumstances become clear to the seller after having entered the agreement, which give seller just grounds for fearing that other party will not meet its obligations;
    • seller has asked other party to offer insurance for the compliance before entering into the agreement and other party fails to provide this insurance within a reasonable time or this insurance is insufficient.

In the above mentioned cases, seller is entitled to suspend further execution of the agreement or to proceed to dissolving the agreement, without prejudice to seller's right to compensation of damages.

  1. If circumstances occur involving persons and/or materials which buyer applies or is obliged to apply in the execution of the agreement which are of such a nature that the execution of the agreement becomes impossible or so objectionable and/or unreasonably costly that compliance with the agreement can no longer be reasonably expected, seller is entitled to dissolve the agreement, without being bound to payment of compensation of damages.
  2. Seller has closed a debtor's account. If the debtor's insurer of seller does not grant or withdraws coverage over a (potential) other party at any time,  seller is entitled to dissolve the agreement, without being bound to payment of compensation of damages.

Article 19: Force majeure

  1. The term force majeure includes circumstances that prevent compliance with the agreement and that cannot be attributed to the seller. This includes (if and insofar as these circumstances make compliance impossible or unreasonably difficult), but is not limited to:
    • wildcat, or other, strikes in seller's business or other businesses than that of seller;
    • a general lack of necessary raw materials and other goods or services necessary for bringing about the agreed upon goods or services;
    • for seller unforeseeable delays at suppliers or other third parties on which seller depends and general transport difficulties;
    • import and export disrupting (government) measures;
    • government measures;
    • traffic disruptions;
    • war;
    • natural disasters / Force Majeure / Act of God;
    • fire and other destructions;
    • sickness of personnel;
    • business disruption in any form
  2. Seller also has the right to appeal to force majeure if the circumstance that disrupts (further) obligation occurs after the seller should have complied with the agreement.
  3. With force majeure, delivery and other obligations of the seller are suspended.
  4. If the period of force majeure during which compliance with the obligations by seller is impossible lasts longer than 14 days, both parties are entitled to dissolve the agreement, without being bound to payment of compensation of damages in this case.
  5. If seller has already partially complied with its obligations when the force majeure takes effect, or has only partially met its obligations or is only able to partially comply with its obligations, seller is entitled to separately invoice the part already delivered or the part that can be delivered and the other party is obliged to pay this invoice as if it were a separate agreement.

Article 20: Indemnification

  1. The other party indemnifies the seller regarding claims by third parties with regard to damages arising in connection with the execution of the agreement, insofar as the relevant claims would be limited/excluded if the seller could appeal to third parties for the limitation/exclusion of liability under these conditions.
  2. Third parties as referred to in paragraph 1 include, without restrictions, personnel in service of the other party and other (legal) persons that the other party makes use of in the execution of its operations.
  3. The other party is obliged, if it is held accountable regarding damages for which the other party and/or the third party(ies) shall/may possibly hold seller (partly) accountable, to notify seller thereof in writing within 8 days. In such a case, the settlement of the damages by the other party will only take place in consultation with the seller (who does not recognise any liability) under penalty of forfeiting the claims of the other party towards the seller.

Article 21: Personal data

Buyer consents to have personal data provided by buyer included in an automated datafile by seller. Seller guarantees that it will act in accordance with the applicable regulations concerning the processing of personal data. These data may be used for the implementation of the agreement. If the buyer has questions concerning the use of his/her personal data, they can contact the seller via info@md-entree.nl.

Article 22: Dispute settlement

Disputes between seller and other party are exclusively settled by the relevant court of seller's place of establishment, notwithstanding the seller's right to have a summons sent to other party by a relevant court pursuant to the Dutch law (including international law). Parties may agree in writing to submit a dispute on the matter to arbitration or bring it to a mediator (entered in the N.M.I. register).

Article 23: Applicable law

Dutch law is exclusively applicable to every agreement between seller and other party. The applicability of the provisions from the Vienna Sales Convention is excluded.

Article 24: Changes to these terms and conditions

Seller is entitled to change these terms and conditions. The amended terms and conditions apply to all quotes and agreements between the seller and the other party that are made or entered after the day on which the amended terms and conditions have been deposited with the Chamber of Commerce and Industry by the seller.

Article 25: Translations of these terms and conditions

The Dutch version of these terms and conditions is filed at the Chamber of Commerce and Factories in Zwolle. If the text of a translation of the Dutch text of these terms and conditions is in any way contrary to the Dutch text of these conditions, the Dutch text shall prevail.