GENERAL TERMS AND CONDITIONS DMJ OUTDOOR
These terms and conditions apply to - and form an integral part of - any offer, quotation and agreement relating to products to be supplied by DMJ Outdoor B.V., established at Ir. Lelyweg (2031 CD) in Haarlem, the Netherlands, registered at the Chamber of Commerce under trade number 70208484, hereinafter referred to as 'user', unless explicitly agreed otherwise in writing.
In these general conditions "client" means: every (legal) person who orders and/or buys goods from or through user.
Deviation from these terms and conditions is only possible if the parties have explicitly agreed so in writing.
Establishment and amendment of agreement
All offers and quotations made by MSS, in whatever form, shall be without engagement unless a period for acceptance is stated in the offer. An agreement will only be concluded through written (order) confirmation from MSS or through actual performance by MSS.
All indications in offers, quotations or agreements and the annexes thereto, such as images, drawings, sizes, weights, yields and colors, as well as the characteristics of any trial copies provided, shall serve only as a guide. Minor deviations are therefore not at the expense and risk of the user.
Manifest clerical errors or mistakes in offers made by MSS shall release it from its obligation to perform and/or from any obligation to pay compensation arising therefrom, even after the contract is concluded.
Execution of the agreement
Delivery shall take place in accordance with the applicable Incoterm: Ex Works (ex warehouse DMJ Outdoor BV), unless otherwise agreed. Should the client refuse delivery at the agreed time, or neglect to provide information or instructions necessary for delivery, user shall be entitled to store the products at the expense and risk of the client.
Goods shall be deemed to have been delivered as soon as the user has notified the client that the goods, whether or not still to be fully or partly assembled, are ready at the user's or a third party's premises for collection by the client or for dispatch on the client's instructions. From the moment of delivery the goods delivered shall be at the client's risk.
If the parties explicitly agree that user will take care of the transport of the products, both the costs and the risk of loss or damage during transport shall be borne by the client.
The indication of delivery times in offers, quotations, agreements or otherwise is always done by user to the best of its knowledge and these times will be observed as much as possible, but they are not binding.
All prices are in euros and are exclusive of turnover tax and other government levies. Any special additional costs relating to the import and/or customs clearance of goods to be delivered by user to the client are not included in the price and are therefore to be borne by the client.
The amounts stated in user's offers are based on the prices, exchange rates, wages, taxes and other factors relevant to the price level existing at the time of the offer. If after the (order) confirmation one or more of the mentioned factors changes, user is entitled to adjust the agreed price accordingly. If under the present provision the price is increased, and the increase amounts to more than 10% of the total amount agreed, the client is entitled to dissolve the contract in writing within eight days after it is or could have been aware of the price increase.
Payment must always take place within 30 days after the invoice date. The client is not entitled to set off any claim against user against the amounts charged by user.
User is always entitled to invoice deliveries or goods delivered per partial delivery.
Payment shall be made by deposit or transfer to a bank or giro account designated by user. MSS shall at all times be entitled, both before and after the conclusion of the agreement, to demand security for payment or advance payment, subject to suspension of performance of the agreement by MSS, until security is provided and/or advance payment is received by MSS. If advance payment is refused, MSS shall be entitled to dissolve the agreement and the client shall be liable for any loss or damage sustained by MSS as a result.
User shall be entitled to suspend the delivery of products which it holds for the client in connection with the execution of the agreed work until all payments owed by the client to user have been made in full.
If payment is not made in time, the client shall be in default by operation of law without notice of default being required. From that moment on, the client shall owe user statutory commercial interest as referred to in Section 6:119a of the Dutch Civil Code.
In the event that no payment has been received following the expiry of a further term of payment set in a written reminder, the client shall owe user a penalty equal to 10% of the principal sum including VAT owed by the client to user, irrespective of whether user has had to incur any extrajudicial collection costs and without prejudice to user's right to claim compensation.
Without prejudice to the other rights of the user by virtue of this article, the client shall be obliged vis-à-vis the user to reimburse any collection costs incurred by the user that go beyond the sending of a single summons or the mere submission of an - unaccepted - proposal for settlement, the collection of simple information or the compilation of the file in the usual manner. These costs will be determined on the basis of the guidelines that apply at that time in the courts in the Netherlands.
The applicability of Article 6:92 of the Dutch Civil Code is excluded with respect to the penalty clause included in this article.
If the user provides a guarantee to the client with respect to the work or products delivered or to be delivered by the user, the user shall make this known to the client explicitly in writing. In the absence of such explicit written notification, the client cannot invoke the guarantee, without prejudice to his statutory rights arising from mandatory provisions.
Should a claim under the guarantee by the client be well-founded, MSS shall, at its discretion, repair the product or deliver the product as agreed, unless it can be shown that this has become demonstrably pointless in the meantime for the client. In the event that MSS informs the client that it will undertake repairs, the client shall return the products supplied to MSS at his own expense and risk.
Any possible guarantee obligations of user lapse if errors, defects or imperfections with respect to those goods are the result of improper, careless or incompetent use or management of the delivered goods by the client or by third parties engaged by the client or if they are the result of an external cause such as, for example, fire or water damage, or if the client or a third party has made changes or has had changes made to the goods delivered by user without permission of user.
Any complaints about a product delivered by user must be immediately communicated by the client to user in writing, stating the reasons. If 15 days after delivery of the products have elapsed, the client can no longer submit justified complaints, unless the defect at the time of delivery would not have been noticeable upon careful and timely inspection. In that case the client must inform user of the defect in writing and with reasons within 15 days after the defect became known or could have become known to the client.
Without prior written consent, user is not obliged to accept return shipments from client. Acceptance of return shipments does not in any way imply acknowledgement by MSS of the reason given by the client for the return shipment. The risk in respect of returned products shall remain with the client until the products have been credited by the user.
In the event that the client invokes any agreed guarantee scheme but this invocation subsequently proves to be unjustified, MSS shall be entitled to charge the client for the work and costs of investigation and repair incurred on its part as a result of this invocation in accordance with its usual rates, with a minimum of € 100.00.
Retention of title
All products to be delivered and supplied by user remain the property of user under all circumstances, as long as the client has not paid any claim of user, including in any case the purchase price, extrajudicial costs, interest, penalties and any other claims as mentioned in article 3:92, paragraph 2 of the Dutch Civil Code.
The client is obliged to store the products delivered under retention of title with the necessary care and as the recognizable property of the user.
Until such time as ownership thereof has been transferred to user, client shall not be entitled to pledge or otherwise encumber or to wholly or partially transfer to third parties the goods delivered subject to retention of title, except in so far as such transfer is made for the purpose of conducting the client's ordinary business activities.
If the client fails to fulfil his payment obligations to user or user has good reason to fear that the client will fail to fulfil his obligations, user shall be entitled to take back the goods delivered under retention of title. The client shall cooperate and give the user free access at all times to its premises and/or buildings to inspect the goods and/or to exercise the user's rights. After taking back the goods, the client will be credited for their market value, which in no case can be higher than the original price that the client had agreed with the user, minus the costs arising for the user from taking back the goods.
Return shipments will only be accepted after prior written approval by DMJ Outdoor B.V. The costs and risks associated with return shipments shall be at the customer's risk.
Dissolution and termination
The client will be deemed to be in default if it fails to comply with any obligation arising from the agreement, or fails to do so in time, or if the client fails to comply with a written demand for full compliance within a reasonable period of time.
In the event of default on the part of the client, the user shall be entitled, without any obligation to pay compensation and without prejudice to the rights vested in him, to dissolve the agreement in whole or in part by means of a written notice addressed to the client and/or to demand immediate payment of any amount owed by the client to the user and/or to invoke the retention of title.
User is entitled to dissolve the agreement with immediate effect if the client applies for a suspension of payments or bankruptcy or if all or part of his assets are seized. All amounts invoiced shall then become immediately due and payable. User will never be liable for any compensation due to this termination.
User is not liable if a shortcoming is the result of force majeure. During the period of force majeure the user's obligations will be suspended. If the period in which it is impossible for MSS to fulfil its obligations exceeds three months, either party shall be entitled to dissolve the contract without recourse to the courts, and no liability to pay compensation shall arise.
The term 'force majeure' as referred to in this article shall in any case be understood to mean unforeseen circumstances, also of an economic nature, which have arisen through no fault of the user, such as, among others, a serious disruption in the company, a forced reduction of production, strikes and lockouts, both at the user and at suppliers, war, hostilities, state of siege, mobilization, either in the Netherlands or in any other country where any branches of the user or of its supplying companies are located, delays in transport or delayed or incorrect delivery of goods or materials or parts by third parties, including its supplying companies.
If, when force majeure arises, MSS has already fulfilled part of its obligations, or can fulfil only part of its obligations, MSS shall be entitled to separately invoice the part already supplied, or which can be supplied, and the client shall be obliged to pay this invoice as if it were a separate agreement.
User is only liable for damage suffered by the client if and insofar as such damage is the direct result of intent or conscious recklessness on the part of user's management.
The total liability of user shall in all cases be limited to compensation of direct damage, whereby the total amount to be paid by user to client in respect of any rectification obligations and compensation of damage shall never exceed the amount of the price stipulated in the agreement (excluding VAT).
User is not liable for damage, if and insofar as client has insured himself against the damage concerned or could reasonably have insured himself.
12. Disputes and Applicable Law
If any uncertainty exists regarding the interpretation of one or more provisions of these general terms and conditions, then the interpretation of such provision(s) must take place 'in the spirit' of these general terms and conditions.
Dutch law applies to an agreement entered into with the user. Foreign laws and treaties including the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Sales Convention) are excluded.
Any disputes relating to this agreement or arising from this agreement will be settled in the first instance by the competent court in the district in which the user is located at the time of concluding this agreement.