General terms and conditions of sale and delivery of the private company with limited liability, DPG B.V., having its registered place of business and office in Deurne. Filed with the Chamber of Commerce in Roermond under number 68365586.
Article: 1: Definitions
1.1 The term "Seller" in these terms and conditions refers to the private company with limited liability DPG B.V. (Chamber of Commerce registration number 68365586) and all businesses related to this company within a corporate entity.
1.2 The term "Purchaser" in these terms and conditions refers to any (legal) personal that enters into a purchase agreement or any other kind of agreement with the Seller.
1.3 The term "Product" in these terms and conditions refers to items and services, each in the broadest sense of the word.
Article 2: Applicability
2.1 These terms and conditions apply at all times to all offers, quotations and agreements issued and entered into by the Seller.
2.2 These terms and conditions apply to the exclusion of any general terms and conditions of the Purchaser, unless those terms and conditions have been accepted in writing by the Seller.
2.3 Deviations from the provisions in these general terms and conditions may only be agreed in writing.
Article 3: Offers and/or quotations
3.1 All offers and/or quotations are non-binding, unless explicitly agreed otherwise in writing.
If an offer states a term for acceptance, this solely means that the offer will at all events lose its validity after this term has elapsed.
3.2 Brochures, price-lists and other information provided by the Seller are purely of an informal nature and are not binding.
3.3 The Seller reserves the right to reject orders, without stating its reasons, or to deliver orders subject to cash-on-delivery terms.
Article 4: Formation of an agreement
4.1 Agreements, and changes and additions to those agreements, only arise after the Seller has confirmed them in writing, or the Seller has started work on fulfilling the agreement.
4.2 If the Seller has issued a binding quotation (see 3.1), the agreement arises on the day of receipt of written acceptance of the offer.
Article 5: Prices/VAT registration number
5.1 The prices stated in any offer are exclusive of VAT. Unless agreed otherwise in writing, the prices are stated in euros. If a Purchaser places orders without expressly agreeing a price, any such order will be fulfilled at the Seller's valid sales price, which applies at the time of order fulfilment, regardless of any earlier quotations or any prices that have been charged previously.
5.2 Quotations are always issued based on the prices that apply at the time of the agreement.
If, after entering into the agreement, one or more cost price factors (including wages, tax, premiums, purchase prices, raw materials prices, foreign currency exchange rates, etc.) increase, the Seller is entitled to charge this increase to the Purchaser.
5.3 The Purchaser must provide a correct VAT registration number to the Seller and immediately inform the Seller of any changes to this number. If the Purchaser does not comply with this obligation, the purchase price will automatically be increased by applying VAT and other amounts for expenses incurred by the Seller as a result of this non-compliance.
Article 6: Delivery/Packaging
6.1 The indicated delivery dates are always considered to be approximate and shall never be seen as a firm deadline unless expressly agreed otherwise in writing. In the event of a delay in delivery, the Seller must be notified of default in writing and a reasonable period set, so that the Seller can still fulfil its obligations.
6.2 Unless agreed otherwise, all deliveries are made on an ex-works basis from the Seller's premises. The Products that have been sold are for the account and risk of the Purchaser from the time of entering into the purchase agreement. Even if carriage-paid delivery has been agreed, the risk during transportation from the Seller's premises, or from a different location, is always for the Purchaser and for the Purchaser's account; if necessary, the Purchaser must take out insurance to cover this risk. Carriage-free delivery solely means that the Seller shall pay the costs of carriage for the Products in question to the Purchaser's unloading location.
6.3 If the Seller charges packaging costs on the invoice sent to the Purchaser, the following applies: only packaging materials/items that are in good condition in the estimation of the Seller, and that are returned carriage-paid to the Seller's warehouse within a period of six months after the invoice date, qualify for reimbursement of the packaging costs charged by the Seller. The Seller shall not accept return shipments of packaging materials/items that are not separately specified on the invoice.
6.4 If the Purchaser is unable to take delivery of the Products after the delivery period has elapsed, the Products in question shall be stored by the Seller for the account and risk of the Purchaser (if the Seller's storage facilities allow). In the event of an inability to take delivery of the products on time, the Seller is, after a period of 14 days after the planned delivery date, entitled to dissolve the agreement without prejudice to the Seller's right to damage compensation and without prejudice to the Seller's right to proceed to sell the Products to third parties.
6.5 At the time of delivery, the Seller is entitled to deviate from the agreed quantity of the Products by a maximum of 10% subject to a minimum deviation of 1 kilogramme, respectively 1 litre, unless expressly agreed otherwise in writing. The Purchaser must take delivery of and pay for the additional quantity and accept delivery of a lesser quantity.
Article 7: Force majeure
7.1 Force majeure is understood to include all circumstances arising outside the Seller's sphere of control, which prevent normal fulfilment of the agreement. These circumstances include strikes, staff illness, import/export and transportation embargoes, measures imposed by the government, failure to deliver or delayed delivery on the part of suppliers and damage to the production plant and means of transportation required for the agreement.
7.2 If a situation of force majeure arises, the Seller is entitled to delay the delivery for as long as the situation of force majeure endures. If a temporary inability to fulfil the terms of the agreement continues for longer than six months after the date on which delivery should have been made, the parties are entitled to dissolve the agreement by registered letter. The parties are also entitled to dissolve the agreement if the Seller is permanently unable to fulfil the terms of the agreement due to force majeure. The Purchaser is never entitled to damage compensation in the event of force measure.
7.3 The Seller is entitled to demand payment for the part of the agreement that has already been fulfilled prior to manifestation of the situation of force majeure.
Article 8: Complaints and claims
8.1 As soon as the Purchaser takes delivery of the Products, the Purchaser must immediately inspect the Products visually to determine that they are in good condition and in accordance with the order that has been placed. If the Products delivered by the Seller show signs of damage, or are not in accordance with the order that has been placed, the Purchaser must immediately submit a complaint at the time of the delivery and state the defects on the shipping document or delivery note, which the Purchaser signs in acknowledgement of receipt. This shipping document or delivery note is considered to present a correct description and specification of the delivered Products. Complaints based on other defects must be submitted in writing within 8 days after the Purchaser has detected, or may reasonably be expected to have detected, these defects, however, at all events, no later than 6 months after the delivery date. If a shorter shelf life is stated on the packaging for the Products in question, the complaints must be notified to the Seller before this shelf life period has elapsed.
8.2 The Purchaser forfeits all its rights and authorities if the Purchaser proceeds to process or resell the Products in a situation where the Purchaser could have detected the claimed product defect by performing a simple check. Complaints made based on technically unavoidable differences in the (stated) colours and properties shall be rejected.
8.3 The imperfections in the delivered paint products may only be demonstrated by the Purchaser - to the exclusion of all other proofs - by submitting a report drawn up by the most suitable department of TNO (Dutch organisation for applied science research) or a different independent expert organisation: the costs of the report shall be borne by the party found to be at fault. All other Products are exempted from a binding stipulation relating to the provision of proof.
8.4 Warranty claims and complaints relating to defects, weights, quantities or the packaging, and relating to the calculated price and invoices must also be submitted in writing within 8 days after delivery of the Products, or after receipt of the invoices.
8.5 If complaints and claims are not submitted in good time, the Purchaser is considered to have approved the delivered Products, respectively invoice.
8.6 Submission of a complaint or claim does not release the Purchaser from its payment obligations relative to the Seller.
8.7 If the complaints or claims are determined to be well-grounded by the Seller, the Seller (at its own discretion) shall either arrange repair of the Products, or replace the Products, or parts thereof.
Article 9: Liability
9.1 The Seller's liability is limited to compliance with the provisions of Article 8.7, except if the damage results from malignant intent or gross negligence on the part of the Seller's managerial staff. All other liability is excluded. The Seller also rejects liability for misunderstandings, corrupted data, delays or improper delivery of orders and announcements resulting from the use of the Internet or any other means of communication in the correspondence between the Seller and the Purchaser, or between the Seller and third parties, insofar as this is connected to the relationship between the Seller and the Purchaser, unless malignant intent or gross negligence on the part of the Seller can be demonstrated.
9.2 If the Seller is unable to make use of the provisions of paragraph 1 of this article, the Seller is only liable for damage that results directly and exclusively from its own negligence, subject to the following provisos:
(1) The Seller is never liable for indirect damage (such as loss of profit, consequential damage and/or loss of earnings) and (II) the Seller is not liable for its agents (also in the case of malignant intent or gross negligence on the part of those agents).
9.3 Furthermore, if the Seller is unable to make use of the exemptions from liability stated in paragraphs 1 and 2 of this article, the Seller's liability shall at all events be limited to a maximum of the invoice amount for the Products delivered by the Seller (which is also understood to include documentation, processing and other instructions, coordination and inspection, etc.) in respect of which the Seller is liable to pay compensation.
9.4 In the event that the Seller is held liable by third parties in the matter of any damages, for which the Seller is not liable pursuant to these general terms and conditions, the Purchaser shall indemnify the Seller completely.
Article 10: Retention of title
10.1 All Products delivered by the Seller remain the Seller's property until the Purchaser has paid the purchase price and any other amount charged, as referred to in article 3:92, paragraph 2, of the Dutch Civil Code, to the Seller.
10.2 The Purchaser undertakes, at the first request, to establish a pledge, as referred to in Article 3:239 of the Dutch Civil Code, for the benefit of the Seller, in respect of the third-party receivables ensuing from the sale of the products delivered by the Seller.
Article 11: Payment, interest and costs
11.1 Unless expressly agreed otherwise, payment must be made in full within a period of 30 days after the date of invoice, without any entitlement on the part of the other party to discount, suspension or set-off. In the event of payment within 8 days after the date of invoice, the Purchaser may (if the Seller has no outstanding invoices in respect of the Purchaser for other orders or any other matters) subtract a discount of 2% from the net invoice amount, unless expressly agreed otherwise in writing.
11.2 If the Seller's invoice is not paid within a period of 30 days after the date of invoice, the Seller is entitled to increase the invoice amount by applying interest at a rate of 1X% per month (where part of a month counts as a full month) - or, if higher, subject to the statutory rate of commercial interest pursuant to article 6:119a of the Dutch Civil Code, with effect from 30 days after the date of invoice.
11.3 All costs incurred by the Seller for court proceedings and extra judicial costs shall be paid by the Purchaser. The extra judicial costs for debt collection equate to 15% of the demanded amount, subject to a minimum of 100 euros.
Article 12: Rights of intellectual and/or industrial property
12.1 The Seller retains all of its rights of intellectual and/or industrial property in respect of all Products it delivers. The Purchaser undertakes to avoid violating or injuring these rights through use or otherwise, in whatever way, directly or indirectly, and acknowledges that the Seller holds the rights in this matter.
Article 13: Re-sale/Duty of care
13.1 The Products may only be delivered on to third parties by the Purchaser in the original unchanged packaging. The Purchaser shall never use the packaging originating from the Seller that carries any mark or indication or reference for the purpose of repackaging any product. The Purchaser shall always handle the Products with care and avoid any handling operations that might adversely affect the quality or the safety of the Products, or the reputation of the brands.
Article 14: Dissolution and suspension
14.1 In the event that the Purchaser:
- is declared bankrupt, applies for suspension of payments, or if the Dutch (Private) Bankruptcy Act (Wet Schuldsanering Natuurlijke Personen) is declared to apply;
- dies or is placed under administration;
- decides to discontinue or transfer its business activities or a major part of thereof, including transferring its business activities into a company that is to be created, or an existing company, or decides to change the purpose and objectives of its business;
- is in default in respect of obligations ensuing from an agreement entered into with the Seller; all invoices are immediately payable and the Seller is authorised to suspend fulfilment of its obligations (completely or partially) until the Purchaser has provided sufficient security for the fulfilment of its obligations, or dissolve the agreement, in which case the Purchaser is liable for all damages that have been and will be suffered by the Seller.
14.2 During implementation of the agreement, the Seller is entitled to suspend fulfilment of its obligations until the Purchaser, at the request and to the satisfaction of the Seller, has provided adequate security for the fulfilment of all of its obligations ensuing from the agreement. This provision applies equally if credit terms have been negotiated. Refusal on the part of the Purchaser to provide the required security entitles the Seller to dissolve the agreement without initiating court proceedings and, if necessary with retroactive effect, without prejudice to the Seller's right to payment for the Products that have already been delivered by the Seller and work that has been performed, and without prejudice to the Seller's right to payment to cover damages and expenses and interest.
Article 15: Applicable law and disputes
15.1 Dutch law applies exclusively to all offers, quotations and agreements issued or entered into respectively by the Seller and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15.2 All disputes between the parties shall be heard and settled by the District Court of Roermond in the Netherlands.
15.3 The provisions of paragraph 2 of this article in no way impair the Seller's right to refer the dispute to the competent civil court under the normal rules of jurisdiction.
Duly drawn up in Deurne on 22 November 2012.