GENERAL TERMS AND CONDITIONS OF DELIVERY FOR THE NETHERLANDS
of the private company with limited liability, Boer Speeltoestellen B.V., with its registered office in Nieuwendijk, filed at the office of Tilburg of the Chamber of Commerce Mid-Brabant.
1.1. These general terms and conditions of delivery and payment apply to all offers, assignments, agreements and obligations, by whatever name these are known, of Boer Speeltoestellen B.V. – hereinafter referred to as: vendor – with third parties – hereinafter referred to as: buyer and/or other party.
1.2. When carrying out all orders on behalf of its buyers, the vendor will exercise due care and when doing so, to the best of its ability, will take into account the buyers’ interests.
1.3. The vendor will always be entitled, even when an offer has been made, to refuse orders without stating a reason for that refusal.
1.4. The standard terms and conditions of the buyer do not apply, unless these have been accepted in writing by the vendor.
2.1. All offers made by or on behalf of the vendor, are valid for a period of three months following the date that the offer was made, but are made without any obligation.
2.2. Offers remain the property of the vendor, as do any designs and drawings that are provided.
2.3. Purchase agreements which are entered into through the intermediation of a representative or an intermediary, can be concluded by means of an order made by telephone, after which a buyer, at the latter’s request, will be sent the relevant terms and conditions forthwith, as well as a written confirmation of the agreement that has been entered into between parties.
3.1. Unless explicitly stipulated otherwise, prices are net prices which exclude VAT, without deduction or discount.
3.2. The agreed selling price is based on the prices applicable at the time of acceptance, of materials, raw materials or semi-finished products, loans, premiums, whichever these are, carriage, taxes, exchange rates and/or other cost-price-determining factors.
3.3. If and insofar as the term between the date of acceptance and the handing over or delivery exceeds a period of twelve months and the prices and costs stated in article 3.2 have changed during that period, the vendor is entitled to proportionally amend the agreed price, after the mentioned term.
3.4. Article 3.3. explicitly does not relate to changes whereupon the authority for the vendor to increase the price is prescribed by law.
4.1. All payments are to be made in cash following supply and/or delivery of the goods, or within 30 days of the invoice date, in the event of agreements to the effect that performing some services, after completing the services, unless agreed otherwise in writing.
4.2. The vendor is always entitled to request that the client provides, in the former’s opinion, sufficient guarantee, prior to continuing with delivery or with the delivery or upon completion of the order, that the payment obligations of the client will be met. This condition also applies if credit is stipulated. The refusal of the buyer to provide the requested guarantee gives the vendor the right to consider the agreement to have been dissolved, without prejudice to the right of the vendor to compensation of expenditure and loss of profit.
4.3. Payment shall be effectuated at the offices of the vendor, or into a bank or giro account to be stipulated by the vendor.
4.4. If the payment of an invoice that has been issued has not been made within 30 days after the date of the invoice, or after a payment term explicitly agreed between the parties, then, by operation of law, the other party is in default without notice of default having to be given, and the vendor is entitled to calculate 2% (default) interest over the invoice amount for each 30-day period, or portion thereof, that the payment of the amount due is not forthcoming after the stated term.
4.5. If, on account of non (timely) payment, the vendor is compelled to take measures for collection, all (extrajudicial) costs associated with this shall be borne by the buyer. These costs are calculated in accordance with the collection rate advised by the Netherlands Bar Association.
4.6. Should the buyer fail to meet its payment obligations, the seller is entitled to suspend the work, even if a fixed delivery date has been agreed, or to consider the agreement as having been fully or partially dissolved without judicial intervention. In that case, the buyer is liable for all damages suffered by the vendor, including any loss of profits and transport costs and the costs of the notice of default.
5.1. The duration of repair and/or delivery times supplied by the vendor apply as from the date of acceptance referred to in article 2.1. of these terms and conditions. The duration of repair and/or delivery times apply by approximation only and cannot be considered to be a firm date.
5.2. In the event of force majeure and other circumstances of such a nature that, in all reasonableness, (timely) compliance with the transaction cannot reasonably be required from the vendor – also including in the event that the vendor cannot meet its obligations on account of its own suppliers – the delivery time will be increased by a period of time equal to that of the continuation of those circumstances.
5.3. Understood to be meant by circumstances that cannot reasonably be expected and which fall outside the sphere of influence of the vendor, are war, the risk of war, civil war, riot, acts of war, theft, fire, water damage, flood, industrial action, plant occupation, lockout, import and export obstructions, government measures, defects to machinery, energy supply failures, everything within the vendor’s company and that of third parties from which the vendor has to obtain, either wholly or partially, the required materials/products or raw materials, as well as for storage or transport, whether or not under own management, and furthermore, by all other causes through no fault of, or outside the sphere of risk of, the vendor.
5.4. If after having accepted the order, it becomes evident that, as a result of circumstances that were unknown to the vendor, this order is unfeasible, the vendor is entitled to demand that, if possible, the order is modified in such a way that this becomes feasible.
5.5. If the period during which, on account of force majeure, compliance with the obligations by the vendor is not possible or will take longer than six months, both parties are authorised to dissolve the agreement without judicial intervention, without, in that case, there being an obligation to pay compensation.
5.6. If, at the time of the occurrence of force majeure, the vendor has partially met its obligations, or can only partially meet its obligations, the latter is entitled to invoice separately for the part that has already been delivered and/or the part that can be delivered and the buyer is obliged to pay this invoice as if it were a separate contract.
5.7. Exceeding the delivery periods, which cannot reasonably be attributed to the vendor, does not oblige the vendor to pay the buyer any type of compensation for damages suffered by the buyer or by third parties, unless the periods were exceeded on account of intentional act or omission, or gross negligence by managing directors or managerial staff of the vendor.
6.1. The vendor accepts liability for loss suffered by the other party which results from an attributable shortcoming in fulfilling its obligation, if and insofar as this liability is covered by the latter’s insurance, up to the amount of the payment made by the insurance.
6.2. If for any reason the insurer does not pay out, the liability is limited to a maximum of the invoice amount that relates to the relevant part of the order or delivery.
6.3. Contrary to paragraphs 1 and 2 of this article, the vendor accepts no liability for consequential damage, damage on account of the delivery terms been exceeded as a result of the changed circumstances and damage resulting from insufficient cooperation, inadequate information or materials from the other party.
6.4. In the event of a wrongful act by the vendor, or by its employees, the vendor is only liable for compensation of damages through death or physical injury. In these cases, the vendor’s liability is limited to a maximum of the amount against which the vendor is insured, or should have been insured in all reasonableness, considering the applicable practice within the sector.
6.5. The vendor is not liable if the shortcoming results from force majeure.
6.6. The limitations included in this article do not apply if the damage is resultant from intentional act or omission or gross negligence of the vendor or of one of its managerial employees.
7.1. Provided that demonstrable preventive maintenance is carried out and the device is original according to regulations.
7.2. On the basis of a depreciation of 10% a year.
7.3. A 10 year warranty for a failure of poles, panels and bars resulting from manufacturing and/or assembly faults; a 5 year warranty for manufacturing and/or assembly faults in other parts, with the exception of moving parts; a 1 year warranty for manufacturing and/or assembly faults in moving parts (hinges, etc.); a 1 year warranty for installation work.
7.4. These terms and conditions of the warranty become null and void if other terms and conditions are stated on the offer.
8.1. The buyer can no longer invoke a fault in performance if the latter did not protest against this fault in writing to the vendor within an appropriate amount of time of having discovered the fault or should have discovered the fault in all reasonableness. Defects that are immediately evident have to be noted on the delivery documentation.
8.2. Understood to be meant by an appropriate amount of time is eight days following delivery of an item or completion of work, or in the event that it has not yet been delivered or completed, eight days after the buyer has discovered a fault, whereby the latter should inform the vendor in writing what the fault is and when and how the former discovered the fault.
8.3. Complaints about invoices have to be submitted in writing within eight days of receipt of the invoice.
8.4. If the buyer did not submit a complaint within the aforementioned periods of time, and/or if the buyer has not given the vendor the opportunity to repair the defects, the right of recovery becomes null and void.
9.1. The illustrations, leaflets, samples, models and the like used by the vendor in its sales activities are only provided or published by way of indication, without the item to be delivered necessarily conforming to these.
9.2. Any templates and/or dies and models produced in relation to executing the buyer’s order will become the property of the vendor after completion of the order, unless explicitly agreed otherwise.
10.1. The vendor remains the owner of the items that have been and that will be delivered, as long as the buyer has not paid the claims of the vendor by way of consideration of the agreement or a similar agreement.
10.2. The vendor also remains the owner of the items that have been and that will be delivered as long as the other party has not paid for the work that has been and that will be carried out, ensuing from such agreements and as long as the other party has not met claims on account of failure to fulfil such an agreement, including claims relating to a fine, interest and costs.
10.3. As long as it has not paid the aforementioned debts, the buyer is not entitled to establish a pledge or a nonpossessory pledge on the items delivered by the vendor, or to pledge, lease out, lend or loan the items, or to secure a mortgage on these. If the buyer has resold the items before the ownership has transferred to it, the third buyer is the custodian of the item in respect of the vendor. The buyer is obliged to make known a restriction relating to this when reselling the items. Upon the first demand of the vendor, the buyer and/or the custodian have to state where the involved items have been stored and enable the vendor to take back the items.
10.4. At the moment of delivery to the buyer, the risk for the items transfers to the vendor.
11.1 Without prejudice to the provisions of articles 4 and 5, the agreement will be dissolved without legal intervention, following a written statement, at the time at which the buyer is declared to be in a state of bankruptcy, petitions for suspension of payment, or, through attachment, under guardianship or otherwise, loses the power to dispose of property of his possession or parts thereof, unless the guardian or administrator recognises the obligation ensuing from this agreement as a debt of the estate.
11.2 On account of the dissolution, reciprocally existing debts become due and payable forthwith. The buyer is liable for the loss suffered by the vendor, including, amongst other things, lost profits and transport costs.
11a.1 Whole or partial cancellation of the order is only possible following the consent of and written confirmation by the vendor.
11a.2 In the event of cancellation of standard products, a compensation is charged of 25% of the sale price.
11a.3 For specially manufactured products, or products that have been made, upon request, in a different colour, this compensation of 25% will be increased by the costs that were actually incurred by the vendor..
11a.4 In the event that the order is cancelled following delivery, the aforementioned amount will be increased by the costs of transport for the delivery and collection of the products.
Article 12. Disputes and applicable law.
12.1. Dutch law is applicable to all agreements, as well as the disputes ensuing from those agreements.
12.2. All disputes arising from offers and agreements, by whatever name these are known, will be subject to the judgement of the civil court, that is competent in the place of business of the vendor, unless dictated otherwise by legal provisions.
BOER SPEELTOESTELLEN B.V.
1.1. These terms and conditions apply to all agreements that are entered into between BOER BELGIUM B.V.B.A. and a customer. The customer’s general terms and conditions are explicitly ruled out unless, by means of its offer, BOER BELGIUM B.V.B.A. officially accepts specifications and quotations of the State.
1.2. If preference is given both explicitly and in writing to the terms and conditions of the customer, these general terms and conditions will additionally still be ruled out unless, by means of its offer, BOER BELGIUM B.V.B.A. officially accepts specifications and quotations of the State.
2.1. All offers by BOER BELGIUM B.V.B.A. are not binding and are only valid for a period of three months. Following this period, BOER BELGIUM B.V.B.A. reserves the right to amend the prices.
2.2. The proposals for agreement made by the agents of BOER BELGIUM B.V.B.A., are only binding for BOER BELGIUM B.V.B.A. if they are correspond with the contractual terms and conditions, of which these general terms and conditions form part, and after they have been confirmed in writing by the latter.
2.3. All data set out in the catalogues, documentation, price lists, websites, trade fairs and other communication of BOER BELGIUM B.V.B.A. can be subject to change and are not considered to be an offer.
Any order that is made will only result in an agreement once BOER BELGIUM B.V.B.A. has provided the customer with its agreement in writing.
The documents referred to in article 3, as well as all designs, studies and drawings, remain the property of BOER BELGIUM B.V.B.A. They may not be used, communicated or copied, even partially, without the prior written consent of BOER BELGIUM B.V.B.A. These documents should be returned to the latter upon an initial request.
5.1. Unless agreed otherwise explicitly and in writing, the delivery and period of implementation are only approximations and any delay in the delivery of the goods and/or the implementation of the work cannot give rise to compensation, nor to dissolution of the agreement. The consequence of any changes in the order made by the customer, that were accepted by BOER BELGIUM B.V.B.A., is that the originally stated delivery period becomes null and void and will be replaced by new delivery period, to be determined by BOER BELGIUM B.V.B.A.
5.2. Unless agreed otherwise explicitly and in writing, the goods will be transported by BOER BELGIUM B.V.B.A. at the expense and risk of the customer. The intervention of BOER BELGIUM B.V.B.A. with carriers, insurers, hauliers, etc. is always deemed to have been carried out on behalf of and at the expense of the customer.
5.3. The risk for the goods is transferred at the time that the goods leave BOER BELGIUM B.V.B.A.’s factory, which includes when the goods are transported by BOER BELGIUM B.V.B.A.
5.4. The site has to be easily accessible for trucks or other rolling stock and free from obstructions or obstacles.
6.1. Any cancellations should be made in writing.
6.2. At the discretion of BOER BELGIUM B.V.B.A., in the event of cancellation, the latter can either demand that the agreement is executed, or demand the payment of compensation, which is estimated at a fixed sum of 25% of the price, unless the actual damage suffered by BOER BELGIUM B.V.B.A. as a result of the cancellation is higher than this fixed amount, such as in the situation that specific goods have been produced. In that case, BOER BELGIUM B.V.B.A. is entitled to full indemnification.
7.1. All materials supplied by BOER BELGIUM B.V.B.A. will remain the property of the latter until the customer has made payment of the full price and of the full compensation that is owed to BOER BELGIUM B.V.B.A. in terms of the capital sum, interest and costs.
Until this payment has been made, the goods cannot be disposed of, pledged or given as security by the customer.
7.2. The customer undertakes to carefully store the goods, and ensure that these are identifiable as the property of BOER BELGIUM B.V.B.A. The customer may not relocate the goods without the prior consent of BOER BELGIUM B.V.B.A. In the event of nonpayment within the stipulated term, BOER BELGIUM B.V.B.A. can claim back the goods.
7.3. Irrespective of the time of the transfer of ownership, the risk transfers when the goods are delivered to the customer.
8.1. Unless explicitly agreed otherwise in writing, the prices stated exclude VAT, other governmental charges applicable to the sale and delivery, packaging costs and costs of certificates that are requested by the customer.
8.2. BOER BELGIUM B.V.B.A. reserves the right to suspend the implementation of the work and to request a security deposit for the goods that have already been delivered. The costs associated with this security deposit shall be borne by the customer.
If the security deposit is not furnished within the term stipulated by BOER BELGIUM B.V.B.A., the latter shall invoke art. 10.
9.1. Unless agreed otherwise in writing, the invoices of BOER BELGIUM B.V.B.A. are payable to the company domicile within 30 days of the invoice date, without it being possible to claim any reduction.
9.2. In the absence of integral payment of the invoice within the aforementioned period, as from the first day following that day, by operation of law and without further notice of default being required, an interest will be owed as referred to in article 5 of the Law of 2/8/2002, namely the reference rate of interest increased by 7% and rounded up to a half percent, which upon increase and conventionally, is also declared to be applicable to all those transactions that would be entered into with non-traders, without the thus resulting rate of interest being allowed to be lower than 12% on an annual basis.
9.3. Furthermore, by operation of law and without further notice of default being required, compensation is owed, estimated at 10% of the outstanding amount, without this payment being allowed to be lower than the administration of juristic compensation laid down by the King in the enforcement of article 1022 of the Belgian civil code.
9.4. In the event that the customer does not pay within the aforementioned period, the latter will acknowledge that it has committed a contractual error, which has caused damage to BOER BELGIUM B.V.B.A. and that could give rise to the enforcement of art. 10.
9.5. All payments made by the customer will first be subject to interest owed in accordance with the current terms and conditions, then on the compensation and only after then on the outstanding (balances) invoice or invoices, whereupon the oldest outstanding amounts are the first to be settled and this is irrespective of comments or notifications, if any, by the customer with regard to the payments.
9.6. If after entering into the agreement, but prior to the payment of the full price, it becomes evident that the customer’s credit is liable to suffer, or if the creditworthiness of the customer decreases, BOER BELGIUM B.V.B.A. reserves the right to demand guarantees that it deems necessary in order for the agreement to be executed correctly.
Article 10. Suspension of the execution of the agreement and dissolution.
10.1. In the event of a customer failing to meet its obligations ensuing from this agreement or another agreement, as well as if the customer declares itself to be in a state of bankruptcy, or if a suspension of payment takes place, or if the customer’s credit becomes unstable, in the event of liquidation or disbandment of the customer’s company, in the event of inability of the customer; if the customer requests a postponement of payment from one or more of its creditors, if an attachment is made of property of the customer (protective or executive); in the event of evidence of or serious suspicion of fraud carried out by the customer; in the event that the customer refuses to provide the requested information or in the event that the customer has provided incorrect and/or false information, without prejudice to its right, BOER BELGIUM B.V.B.A. is entitled to compensation:
10.2. This also applies to work that would be the subject of another contract for services, even if the price for this other contract is paid in accordance with the contractual documents and/or these general terms and conditions.
10.3. In the event of suspension or dissolution, BOER BELGIUM B.V.B.A. is entitled to full compensation.
11.1. The goods are deemed to have been accepted by the customer 10 calendar days following the delivery, except for an accurate description and detailed complaint reaching BOER BELGIUM B.V.B.A. by registered letter before the end of the aforementioned period.
Complaints received after the aforementioned period will be considered by BOER BELGIUM B.V.B.A. to be inadmissible.
11.2. Acceptance covers all visible defects, i.e. all defects that could have been found by the customer at the time of the delivery or during the following five calendar days through a carefully and proper check.
11.3. In the event that, within 2 years as from the date of delivery of the goods, a hidden defect or a lack of consensus arises, that was already in existence at the time of the delivery, the customer has to inform BOER BELGIUM B.V.B.A. of this within 2 months of the discovery of the defect by registered letter.
11.4. The warranty is explicitly limited to repair or replacement of the defective goods free of charge.
11.5. Article 11.4 does not apply if the customer is a consumer in the context of the Law of 1 September 2004. In that case, within 2 years of delivery, the consumer-buyer has access to the 4 remedies referred to in article 1649 ‘quinquies’ of the Civil Code in addition to compensation (free replacement, free repair, reduction in price or dissolution)
11.6. For defects that only arise 2 years after delivery, the consumer-buyer can institute an indemnification claim for hidden defects within a period of 6 months after discovery of the defect. Moreover, on penalty of cancellation, this claim has to be instituted within 4 years of the delivery.
11.7. Explicitly excluded from the warranty are the defects resulting from:
12.1. The liability of BOER BELGIUM B.V.B.A. is limited to complying with the warranty obligations defined in article 11.
12.2. BOER BELGIUM B.V.B.A. is never liable for damage, except for if and insofar as the damage suffered is caused by an intentional error of BOER BELGIUM B.V.B.A. The latter is not liable for the grave error(s) and even the intentional error(s) of its employees.
12.3. All liability of BOER BELGIUM B.V.B.A. is excluded when the damage is caused by concurrence of a defect in the item with an error or omission by the customer or of a person for whom the customer is accountable.
12.4. The indirect damage, such as the financial or commercial losses, loss of profits, increase in general costs, the disruption of the scheduling, the loss of clientele or savings, can in no event give rise to compensation, even if BOER BELGIUM B.V.B.A. is informed beforehand about the possibility of damage.
13.1. Belgian law is applicable to all agreements between parties.
13.2. In the event of a dispute, only the courts of the court district of Antwerp are competent. Should BOER BELGIUM B.V.B.A. opt to do so, it is able to nevertheless summon the customer to appear before the court of the court district where the customer is established.
BOER BELGIUM B.V.B.A.