Terms and conditions
GENERAL TERMS AND CONDITIONS
Houtwarenfabriek Siemerink B.V.
7482 GW Haaksbergen
filed on 13 July 2010 at the Oost Nederland Chamber of Commerce under number 06050534.
Houtwarenfabriek Siemerink B.V’s main activities are wood processing and frame making (for a comprehensive description of the company please see the registered information at the Oost Nederland Chamber of Commerce).
Article 1. Applicability of these terms and conditions
These terms and conditions apply to all legal relationships between Siemerink and the buyer, including all offers by and agreements between Siemerink and the buyer, inasmuch parties did not explicitly agree otherwise.
Article 2. Offers and agreements
The offers made by Siemerink are without obligation. Siemerink is entitled to withdraw its offers, even if they state a term of acceptance. Even without such a term, an offer is considered to have lapsed if it has not been accepted within one month by the buyer. The prices stated in an offer are exclusive of VAT, unless stated otherwise.
Every agreement between Siemerink and the buyer is considered to be an independent purchase agreement, unless explicitly agreed otherwise and documented in a contract.
Article 3. Delivery
1. Unless agreed otherwise, delivery will be ‘Delivered Duty Paid’ in accordance with the ‘Incoterms’. If one of the 'Incoterms' has been agreed as a delivery condition, the applicable Incoterms will apply at the moment the agreement is closed.
2. The buyer is obliged to take delivery of the purchased items at the moment they are delivered or at the time they are made available to him/her pursuant to the agreement.
If the buyer refuses to provide applicable information or instructions required for the delivery, or is negligent in doing so, the items will be stored at the buyer’s risk. In such a case, the buyer will be obliged to pay all supplemental costs, including, in any case, the storage costs.
Article 4. Delivery time
An agreed delivery time is not final unless it has been explicitly agreed otherwise. In the event of a late delivery, the buyer must give Siemerink a written notice of default. In the event of late delivery by Siemerink, the buyer is not entitled to compensation.
Article 5. Partial deliveries
Siemerink is entitled to make partial deliveries. This does not apply if a consignment does not have an independent value.
If items are delivered in consignments, Siemerink is entitled to invoice each consignment separately.
Article 6. Dimensional Tolerance
Siemerink is entitled to deliver items with deviating measurements if the deviation is no more than 2 millimetres in length, 1 millimetre in width and 0.5 millimetres in the depth of the agreed measurements. Such a deviation is not considered to be significant and does not entitle the buyer to terminate the purchase agreement.
Article 7. Suspension or termination of the agreement
1. Siemerink is entitled to suspend or to terminate the execution of the agreement immediately in the following cases:
- if, after entering into the agreement Siemerink becomes aware of circumstances which give reason for concern that the buyer will not meet his/her obligations;
- if Siemerink has requested the buyer to provide security for compliance of his/her obligations and this has not been provided or is insufficient.
In cases as stated, Siemerink’s claims will be due and payable immediately, without prejudice to the entitlement to compensation.
2. Siemerink is entitled to terminate the agreement if there are circumstances concerning persons and/or materials which Siemerink makes use of or tends to make use of in the execution of the agreement which are of such a nature that Siemerink’s execution of the agreement becomes impossible or problematic and/or is disproportionally costly that compliance with the agreement can, in all reason, no longer be expected.
Article 8. Guarantee
1. Siemerink guarantees for a period of 1 year after delivery that the items it delivered are free of design, material and manufacturing defects.
2. If the items reveal design, material or manufacturing defects the buyer is entitled to a repair of the items. Siemerink may opt to replace the items if repair raises objections. The buyer is only entitled to a replacement if a repair of the items is not possible.
3. The guarantee does not apply if the damage is a result of incorrect use. Incorrect use is, in any case, applicable if the items have not been kept dry and conditioned.
4. Wood is a natural product and Siemerink is therefore not liable for the occurrence and/or presence of cracks, small cracks , small splits, small gaps, resin cores, knots, slight colour differences, and/or deviating grains
Article 9. Reservation of ownership
1. Items delivered by Siemerink remain the property of Siemerink until the buyer has met all the following obligations of all purchase agreements entered into with Siemerink:
- the consideration(s) with regard to (an) item(s) delivered or to be delivered,
- the consideration(s) with regard to the services rendered or to be rendered by Siemerink pursuant to the purchase agreement(s),
- any amounts owed due to non-compliance by the buyer with (a) purchase agreement(s).
2. Siemerink reserves, in so far as necessary, the rights of pledge as additional security for all Siemerink’s claims on the buyer with respect to all items which have been transferred to the buyer pursuant to payment and which are still in the buyer’s possession, as stipulated in art. 3:237 of the Dutch Civil Code. This entitlement also applies to items delivered by Siemerink which have been modified or processed by the buyer.
3. If the buyer does not meet his/her obligations or there is founded concern that he/she will not do so, Siemerink will be entitled to remove the delivered items from the buyer or from third parties holding the items for the buyer. The buyer is obliged to cooperate fully with this. Failure by the buyer to cooperate fully will result in a fine amounting to 10% per day of the amount owed by him/her.
Article 10. Shortcomings; time limits for lodging a complaint
1. The buyer must inspect purchased items (or have them inspected) upon delivery or as soon afterwards as possible. In doing so the counterparty must assess whether the delivery meets the agreement, namely
- whether the correct items were delivered;
- whether the delivered items are in accordance with regard to the quantity (for example the number and amount) with what was agreed;
- whether the delivered items meet the agreed quality requirements or - if there were none - meet the requirements that may be expected for normal use and/or trade purposes.
2. If visible faults or inadequacies are established, the buyer must inform Siemerink comprehensively and clearly in writing within 8 days after delivery.
3. The buyer must inform Siemerink comprehensively and clearly in writing of non-visible faults 8 days after they were discovered but at the latest within 1 year.
4. Items can only be returned by the buyer after Siemerink has stated to agree to this in writing.
5. After expiry of the terms stipulated in this article, the buyer is deemed to have approved the delivered items and complaints will no longer be dealt with.
Article 11. Packaging
1. When delivering the items purchased by the buyer, Siemerink may use returnable packaging, such as metal tanks, wheeled containers, etc.
2. The buyer is obliged to return the returnable packaging empty and in the same state as when delivered, within 14 days on his/her account. If the buyer fails to meet his/her obligations with regard to the packaging, all resulting costs will be borne by him/her. Such costs include, among other things, costs resulting from a late return and costs of replacement, repair or cleansing.
3. If, after a demand, the buyer does not return the returnable packaging within the term stated, Siemerink is entitled to replace it and to charge these costs, on condition Siemerink stated these measures in its demand.
Article 12. Price increase
If Siemerink agrees a certain price with the buyer, Siemerink is nevertheless entitled to increase the price. Upon delivery Siemerink may charge the price according to its applicable price list at that point in time.
The buyer is entitled to terminate the agreement upon each price increase.
Article 13. Payment
1. Payment must be effected within 14 days after the invoice date.
After this term, the buyer will be in default of the complete payment; as of the moment of default, the buyer is obliged to pay interest of 1% per month on the amount due and payable.
2. In the event of the buyer’s liquidation, bankruptcy or suspension of payment, or if the statutory debt management scheme is ordered against the buyer, the buyer’s obligations will be due and payable immediately.
3. Payments made by the other party will firstly cover all interest and costs owed, and secondly will cover invoices that are due and payable which have been unpaid the longest, even if the other party states that the claim concerns a later invoice.
Article 14. Collection charges
1. If the buyer does not meet any of his/her obligations in time, all costs for obtaining an out-of-court settlement will, in addition to the agreed price and costs, be on the buyer’s account, including the costs for drawing up and sending demands, for making a proposal for an out-of-court settlement and for obtaining information.
2. In all cases, the buyer owes Siemerink the litigation costs incurred by Siemerink, unless they are unreasonably high.
This only applies if Siemerink and the buyer enter into a legal procedure with regard to an agreement to which these General Terms & Conditions apply, and a judicial ruling is final, whereby the buyer is completely or mainly declared to be in default.
Article 15. Liability
1. The guarantee as stipulated in article 8 (Guarantee) of these terms and conditions applies to defects in delivered items.
2. Siemerink’s liability, inasmuch it is covered by its public liability insurance, is limited to the amount paid out by the insurer. If the insurer does not make a payment in any given case, or the damage is not covered, Siemerink’s liability is limited to twice the invoice value and in other cases to 5 times the invoice value. Consequential damage is not reimbursed.
3. Siemerink is not liable for defects in delivered items due to incorrect treatment (see article 8.3).
4. The limitations of liability included in this article do not apply if the damage is the result of gross negligence on the part of Siemerink or its managers or employees.
Article 16. Obligation to provide information and indemnification
The buyer is obliged to inform its customers, whether or not they are the consumers, with regard to the exemption clauses regarding the guarantee (article 8, paragraph 3 of these general terms and conditions) and regarding liability (article 15, paragraph 3 of these general terms and conditions). The buyer indemnifies Siemerink against all claims for damages resulting from ignorance of third parties, whether they are consumers or not, which is considered to be incorrect use of the delivered items as stipulated in the afore-mentioned exemption clauses.
Article 17. Force Majeure
1. Force Majeure is considered, in addition to what it is considered to be in case law, to be circumstances that prevent compliance to the agreement and that are not attributable to Siemerink.
To the extent and inasmuch compliance is made impossible or unreasonably difficult, it will include: Strikes in other organisations than Siemerink’s, wildcat strikes or political strikes in Siemerink’s organisation, a general lack of the required raw materials and other items or services required for concluding the agreed service; unforeseeable interruptions in supplies or other third parties on whom Siemerink depends on, and general transport problems.
2. Siemerink also has the right to invoke force majeure if the situation of force majeure occurred after Siemerink should have met its liability.
3. In the event of force majeure, Siemerink’s delivery and other obligations will be suspended. If the period whereby Siemerink cannot comply with its obligations lasts longer than 90 days, both parties are entitled to terminate the contract without the obligation to compensate.
4. If Siemerink has partly met its obligations when the force majeure occurred, or can only meet its obligations partly, it will be entitled to invoice the part that was delivered or the part that can be delivered separately. Article 5 also applies in this situation.
Article 18. Settlement of disputes
The District Court in Almelo has exclusive jurisdiction to hear all disputes ensuing from this agreement between Siemerink and the buyer.
Siemerink will, however, remain entitled to summon the buyer to appear before the competent court pursuant to the law or the applicable international convention.
Article 19. Applicable law
Dutch law applies to each agreement between Siemerink and the buyer.
Article 20. Amendments to the terms and conditions
Siemerink is entitled to amend these terms and conditions. The amendments shall take effect at the announced time for this purpose. Siemerink will send the amended terms and conditions to the buyer in time. If no time is indicated for the amendments to take effect, they shall become effective for the buyer as soon as he/she has been informed of the amendments.
Article 21. Translations
Translations of these general terms and conditions may be distributed. However, the Dutch text will remain binding