General terms and conditions
Houtwarenfabriek Siemerink B.V.
NL-7482 GW Haaksbergen, the Netherlands
deposited on 13 July 2010 at the Chamber of Commerce for East Netherlands under number 06050534
Houtwarenfabriek Siemerink B.V. (Wooden Articles Factory Siemerink Ltd) runs an enterprise with as main activity exploiting wood-processing and frame-making (please refer to the data registered with the Chamber of Commerce East Netherlands for the full description of the enterprise).
Article 1. Applicability of these Conditions
These Conditions apply to all legal relationships between Siemerink and the Purchaser, including all tenders on all Agreements between Siemerink and the Purchaser, in as far as these Conditions have not been explicitly deviated from by Parties.
Article 2. Tenders and Agreements
The tenders issued by Siemerink are free of obligations. Siemerink is entitled to recall its tenders, also if a term of acceptance was mentioned in there. Without such term, a tender will at least be considered as lapsed if it has not been accepted by Purchaser within one month. The prices stated in a tender are excluding VAT, unless indicated otherwise.
All Agreements between Siemerink and Purchases will be regarded as independent purchase Agreements, unless explicitly agreed otherwise and contractually established.
Article 3. Delivery
1. Unless agreed otherwise, delivery takes place Delivered Duty Paid in accordance with the Incoterms. If one of the Incoterms was agreed upon as delivery condition, the Incoterms which apply at the time of the conclusion of the Agreement will be applicable.
2. The Purchases is obliged to accept the purchased items at the time they are delivered to him or at the time by which they are made available to him according to the Agreement.
If the Purchaser refuses the acceptance or is in default with the provision of information or instructions which are necessary for the delivery, the items will be stored at the risk of the Purchaser. The Purchaser shall in that case be due all additional costs, including at least the storage costs.
Article 4. Delivery time
An agreed delivery time is not a fatal term, unless explicitly agreed otherwise. In case of untimely delivery, the Purchaser should put Siemerink in default in writing. In case of untimely delivery by Siemerink, the Purchaser is not entitled to damages.
Article 5. Partial deliveries
Siemerink is permitted to deliver sold items in parts. This does not apply if a partial delivery does not have an independent value.
If the items are delivered in parts, Siemerink is authorised to invoice each part separately.
Article 6. Tolerances in dimensional characteristics
Siemerink is authorised to deliver items which as far as dimensions are concerned deviate from the items as described in the Purchase Agreement, if this deviation is no larger than 2 millimetres in length, 1 millimetre in width and 0.5 millimetres in thickness of the agreed dimensions. Such deviation will be regarded as non-essential and does not entitle the Purchaser to annul the Purchase Agreement.
Article 7. Postponement and annulment of the Agreement respectively
1. Siemerink is authorised to immediately postpone the implementation of the Agreement or to proceed with annulment of the Agreement in the following cases:
– if after the conclusion of the Agreement circumstance become to the attention of Siemerink which provide solid ground to fear that the Purchaser will not comply with his obligations;
– if Siemerink has requested the Purchaser for a surety for the compliance and this surety is not provided and/or insufficient.
In the cases mentioned, the claims of Siemerink on the Purchaser are immediately claimable and Siemerink retains the right for damages unimpeded.
2. Siemerink is authorised to annul the Agreement is circumstances occur with regard to persons and/or material which Siemerink uses or is used to use at the implementation of the agreement, which are of such nature that the implementation of the Agreement becomes impossible or in such way problematic and/or disproportionately costly that compliance with the Agreement cannot be requested in all good reason any longer.
Article 8. Warranty
1. Siemerink guarantees that the items it delivers are free of design, material and manufacturing errors during a period of 1 year after delivery.
2. If the item shows a design, material or manufacturing error, the Purchaser is entitled to repair of the item. Siemerink can choose to replace the item if repair incurs problems. The Purchaser is only entitled to replacement if repair of the item is not possible.
3. The warranty does not apply to damage as a result of incorrect treatment. Incorrect treatment is at least concerned if products are not stored dry and conditioned.
4. Wood is a natural product, and therefore Siemerink is not liable for small cracks, chinks, slits, resin cores, knots, minor colour differences and/or mutually deviating ribbing occurring and/or present in the wood.
Article 9. Reservation of ownership
1. The items delivered by Siemerink remain the property of Siemerink until the Purchaser has complied with all following obligations from all Purchase Agreements concluded with Siemerink:
– the contribution(s) with regard to the item/items delivered or to be delivered themselves;
– the contribution(s)( with regard to services carried out or to be carried out by Siemerink by virtue of the Purchase Agreement(s);
– possible claims as a result of non-compliance by the Purchaser of (a) Purchase Agreement(s).
2. Siemerink already herewith reserves the right of lien on items delivered which have transferred ownership to Purchaser because of payment and are still in the possession of the Purchaser as intended in Article 3:237 Dutch Civil Code (BW) to further surety on all other claims by Siemerink on Purchaser. This authority also applies with regard to items delivered by Siemerink which are modified or processed by the Purchaser.
3. If the Purchaser does not comply with his obligations or well-founded fear exists that he shall not do so, Siemerink is entitled to remove or have removed the delivered items from the Purchaser or third parties which store the item(s) for the Purchaser. The Purchaser is obliged to provide all collaboration under penalty of a fine of 10% per day of the amount due by him.
Article 10. Defaults; time limits for lodging a complaint
1. The Purchaser should investigate/have investigated the purchased items upon delivery, or as soon afterwards as possible. Thereby the counterparty should check whether the delivered items comply with the Agreement, namely:
– whether the correct items were delivered;
– whether the delivered items comply with what was agreed upon as far as quantity (for example the number and the amount) is concerned;
– whether the delivered items comply with the agreed quality requirements or – if these do not exist – with the requirements that should may be set to normal use and/or trade objectives.
2. If visible default or shortcomings are established, then the Purchaser should report these in full and clearly described in writing to Siemerink within 8 days after delivery.
3. Non-physical defaults should be reported in full and clearly described in writing to Siemerink within 8 days after discovery thereof, but at the latest within 1 year.
4. Items can only be returned by Purchaser after Siemerink has stated its approval thereof in writing.
5. After expiration of the terms mentioned in this Article, the Purchaser is assumed to have approved of the delivered item(s) and complaints will no longer be handled.
Article 11. Packing
1. Upon delivery of items purchased by the Purchaser, Siemerink can make use of loan packing, such as metal crates, roll-containers, etc.
2. The Purchaser is obliged to return loan packing at his own expense, empty and in the same condition as upon delivery, within 14 days. If the Purchaser does not comply with his obligations regarding the packing, all costs resulting from this are at his expense. Such costs include among other things the costs resulting from too late return shipment and costs of replacement, repair or cleaning.
3. If the Purchaser does not return loan packing after a summons within the term mentioned therein, Siemerink is entitled to replace those items and to charge the costs thereof, on the condition that Siemerink has announced these steps in its summons.
Article 12. Price increase
If Siemerink has agreed a certain price with the Purchaser, Siemerink is nevertheless authorised to increase the price: Siemerink may charge the price applicable upon delivery in accordance with its then applicable price list. In case of each price increase, the Purchaser is entitled to annul the Agreement.
Article 13. Payment
1. Payment shall take place within 14 days after invoice date.
After this term, the Purchaser is in default in case full payment has not been received; from the moment of being in default, the Purchaser is due interest of 1% per month on the claimable amount.
2. In case of liquidation, bankruptcy or postponement of payment of the Purchaser, or if application of the legal debt regulation with regard to the Purchaser is proclaimed, the obligations of the Purchaser shall be immediately claimable.
3. Payments made by the counterparty always firstly serve as payment of all interest and costs due, and secondly of claimable invoices that are open longest, even if counterparty states that the payment is related to a later invoice.
Article 14. Collection fees
1. If the Purchaser does not or not timely obliges with one of his obligations, then apart from the agreed price and costs, all costs in order to obtain extra-judicial satisfaction are at the expense of the Purchaser, including the costs for the formulation and sending of summons, making a settlement proposal and obtaining information.
2. The Purchaser is due towards Siemerink the judicial costs made by Siemerink in all instances, unless these are unreasonably high.
This only applies if Siemerink and the Purchaser enter into legal proceedings with regard to an Agreement to which these General Conditions apply and a judicial decision had become final whereby the Purchaser is fully or predominantly decided against.
Article 15. Liability
1. For defaults in delivered items applies the warranty as described in Article 8 (Warranty) of these Conditions.
2. The liability of Siemerink, in as far as this is covered by its liability insurance, is limited to the amount that is paid out by his insurer. If the insurer in any case does not proceed to compensation or the damage is not covered by the insurance, then the relevant liability of Siemerink of additional service is limited to 2 times the invoice value and otherwise to 5 times the invoice value. Consequential damage will not be remunerated.
3. Siemerink is not liable for defaults in delivered items if incorrect treatment is concerned (see Article 8.3).
4. The limitations of liability as included in these Conditions do not apply if the damage can be attributed to intent or gross negligence by Siemerink or its managers or subordinates.
Article 16. Information obligation of Purchaser and indemnification
The Purchaser is obliged towards his buyers – be it consumers or not – to inform them on the exoneration clauses regarding the warranty (Article 8 Section3 of these General Conditions) and regarding the liability (Article 15 Section 3 of these General Conditions). The Purchaser indemnifies Siemerink against damage claims resulting from ignorance of third parties, be it consumers or not, which is understood to mean improper use of the delivered items as described in the aforementioned exoneration clauses.
Article 17. Force majeure
1. Apart from what is thereby understood in the Law and jurisprudence, force majeure is understood to mean circumstances which prevent the compliance of the obligation and which cannot be attributed to Siemerink.
These shall also include (if and in as far as these circumstances make the compliance impossible or hamper them unreasonably): strikes at other companies than that of Siemerink; unofficial strikes or political strikes at the company of Siemerink; a general lack of necessary raw materials and other items or services necessary for the materialisation of the agreed performance; unforeseen stagnation at suppliers or other third parties Siemerink depends on, and general transport problems.
2. Siemerink is also entitled to claim force majeure if the force majeure situation only commences after Siemerink had had to comply with its obligation.
3. During the period of force majeure, the delivery and other obligations of Siemerink will be postponed. If the period during which, as a result of force majeure, it is not possible for Siemerink to comply with its obligations lasts longer than 90 days, both parties are authorised to annul the Agreement, without any obligation for compensation resulting from that.
4. If Siemerink has already partially complied with its obligations when force majeure occurs, or can only partially comply with its obligations, it is authorised to separately invoice the part already delivered and/or to be delivered. Article 5 applies in this situation as well.
Article 18. Settlement of disputes
The district court in Almelo, the Netherlands, is exclusively competent to be notified on all disputes which might arise between Siemerink and the Purchaser.
Nonetheless, Siemerink remains authorised to summon the Purchaser for the competent judge in accordance with the Law or the applicable International Treaty.
Article 19. Applicable Law
To each Agreement between Siemerink and Purchaser Dutch Law applies.
Article 20. Modification of the Conditions
Siemerink is authorised to carry out modifications to these Conditions. These modifications come into effect date of commencement as stated. Siemerink shall timely send the modified Conditions to Purchaser. If no time of commencement has been mentioned, modifications towards the Purchaser become effective as soon as they he has been notified of the modification.
Article 21. Translations
Translations of these General Conditions can be put into circulation. However, the Dutch text remains binding.