VAT no. NL 8079 93 724 B01
ABN AMRO 55 42 95 814
BIC ABN ANL2A
IBAN NL 32 ABN A 055 42 95 814
P.O. Box 10188
6000 GD Weert
6035 PC Ospel
Article 1. Definitions
Seller: Bertels B.V., the user of the general terms and conditions; Buyer: the counterparty to the Seller, the customer, the client; Agreement: the agreement between the Seller and Buyer.
Article 2. General
1. All Seller’s offers, agreements and the performance thereof shall be governed exclusively by these terms and conditions. Deviations must be expressly agreed in writing with Seller.
2. The applicability of Buyer’s general terms and conditions is expressly excluded, unless the parties have agreed otherwise in writing.
3. If Seller concludes agreements with Buyer more than once, the present general terms and conditions will apply to all subsequent agreements, irrespective of whether or not they have been explicitly declared applicable.
4. If any provision of these terms and conditions is void or is voided, the remaining provisions shall remain in full force and effect. In such case, the void or voided provision will be replaced by a valid provision that corresponds as much as possible with the intent of the void provision.
Article 3. Offers
1. All offers made by the Seller, in whatever form, are without obligation, unless expressly stated otherwise.
2. Any estimates, plans or other documents accompanying an offer shall remain the property of the Seller at all times and must be returned to it carriage paid on demand. They may not be reproduced or made available to third parties for inspection without the Seller’s permission.
3. Sending offers and/or (other) documentation does not oblige the Seller to accept an order.
4. Seller reserves the right to refuse orders without stating reasons.
5. The information, drawings, and images included in catalogues, price lists or documents accompanying the quotation are based on what is customary in the industry. Normal trade and material discrepancies with regard to quality, design and colour are reserved if this is unavoidable due to circumstances, the raw material or for technical reasons. No guarantee is given for the fulfilment of specific weights and measures. For each agreed quantity, a tolerance of 10% is allowed on the understanding that the Seller is authorised, but not obliged, to adjust the price in relation to the deviation.
Article 4. Agreement
1. The order confirmation from Seller shall be regarded as a full and accurate reflection of the agreement, unless Buyer has protested against this immediately in writing.
2. Any subsequent additional agreements or amendments shall only be binding to Seller if they have been confirmed in writing by Seller.
3. For transactions for which no quotation or order confirmation is sent due to its nature and scope, the invoice shall be deemed to reflect the Agreement correctly and in full, unless this is appealed within 5 business days after the invoice date.
4. If a natural person concludes a contract on behalf of or for the account of another natural person and/or legal entity, they shall declare - by signing the contract - that they are authorised to do so. This person, in addition to the natural or legal person, is jointly and severally liable for all obligations ensuing from the Agreement.
5. A composite price does not mean Seller is obliged to deliver part of the products included in the offer or quotation for a proportionate part of the specified price.
6. Each agreement is entered into on the side of Seller under the suspensive condition that Buyer, solely at Seller’s discretion, appears to be sufficiently creditworthy for the financial fulfilment of the agreement.
7. Seller is entitled at the time of or after entering into the Agreement, before carrying out any (further) activities, to require surety from Buyer that both the down payment and other obligations will be fulfilled.
8. Further, Seller is entitled, if it deems this necessary or desirable for the correct performance of the assignment it has been given and after consultation with Buyer, to engage others in the performance of the Agreement, for which the costs will be charged on to Buyer.
9. Buyer is obliged to provide Seller with all information and documents necessary for the proper execution of the Agreement in good time.
Article 5. Prices
1. Unless otherwise stated, the Seller’s prices are:
o based on delivery ex works (company, warehouse or other storage place);
o exclusive of VAT, import duties, other taxes, levies and duties;
o exclusive of the costs of packaging, loading and unloading, transport and insurance;
o in euros;
2. If the prices of materials, additives and raw materials, the prices of parts which we purchase from third parties, further wages, salaries, social security charges, governmental charges, freight and/or other costs should undergo an increase after the date of accepting the order, including as a result of depreciation of the value of the euro, and even if this takes place as a result of circumstances which could already have been foreseen at the time of the offer, we shall be entitled to increase the price agreed upon in the contract accordingly, with due observance of any legal requirements which may exist in this respect.
Article 6. Cancellation
If the Buyer wishes to cancel an agreement after it has been concluded, 10% of the order price (including VAT) will be charged as a cancellation fee, without prejudice to the Seller's right to full compensation of damages, including loss of profit.
Article 7. Delivery
1. From the time of the concluding the purchase agreement, the purchased item is at Buyer's risk. Unless otherwise agreed, Seller shall determine the place and manner of delivery. Delivery shall only be carriage paid if and insofar as this has been agreed by the Seller with the Buyer and this is indicated in the quotation or otherwise.
2. The time of delivery is the time when the purchased item is ready for transport.
3. Buyer shall check the delivered goods and the packaging immediately upon delivery for any defects and/or visible damage, or to carry out this check after notification by Seller that the goods are at its disposal.
4. Any defects and/or damage of/to the delivered goods and/or the packaging present at the time of delivery must be noted by the Buyer on the delivery note, the invoice and/or the transport documents and confirmed by the carrier, failing which the Buyer will be deemed to have approved what has been delivered. At that point, we will no longer accept any complaints in this regard.
5. Buyer is entitled to deliver in parts (partial deliveries), which it can bill individually.
6. If Seller has specified a period for delivery, this shall be indicative. A specified delivery time is therefore never a statutory limit. If a term is exceeded, the Buyer must give Seller written notice of default.
7. If Seller requires information from Buyer in connection with the execution of the Agreement, the delivery period shall begin after Buyer has made such information available to Seller.
8. If the goods have not been taken by Buyer after the expiry of the delivery period, they will be stored available for Buyer at Buyer’s expense and risk. After 30 days have elapsed, the Seller shall be entitled to dispose of the goods freely, without prejudice to the Buyer’s obligation to pay the purchase price and other fees.
9. If purchased on demand, Buyer is obliged to call away the purchased goods within the set time. If the goods have not been called away at the end of the period, the Seller shall be entitled to deliver the goods not called away to the Buyer without delay.
10. Seller shall be entitled to deliver the goods cash on delivery.
11. Seller shall be entitled, but not obliged, to insure the purchased goods on behalf of and at the expense of the Buyer.
Article 8. Transport/risk
1. The risk of loss of or damage to the products that are the subject of the Agreement shall pass to the Buyer at the time when the products are legally and/or actually delivered to the Buyer and thereby come under the control of the Buyer or a third party designated by the Buyer.
2. If the Seller arranges for transport or storage of the products that are the subject of the Agreement, this shall be done entirely at the expense and risk of the Buyer.
3. If the Buyer has not given the Seller any further instructions, the manner of transport, shipping, packaging and the like shall be determined by the Seller with due care. Unless otherwise agreed, Buyer assumes all associated risk, including fault/negligence of the carrier.
4. Any specific wishes of the Buyer regarding transport/shipment will only be carried out if the Buyer has declared it will bear the additional costs thereof.
5. Seller shall be entitled to charge a fee for reusable packaging materials, which fee shall be stated on the invoice. If Seller charges such a fee, it will be refunded after the packaging is returned in undamaged condition.
Article 9. Force majeure
1. Parties are not obliged to comply with any obligation if they are prevented from doing so due to a circumstance that cannot be attributed to gross negligence or intent on the part of the party appealing to this circumstance, nor pursuant to the law, a legal act or common opinions that are attributable to them.
2. Under these general terms and conditions, force majeure shall mean, in addition to the meaning thereof as laid down in legislation and in jurisprudence, all external causes, anticipated or not anticipated, on which Seller cannot exert influence such as traffic jams, electrical/computer faults, import and export difficulties, natural disaster, staff illness and interruption in delivery by suppliers, but which prevent Seller from fulfilling its obligations. This shall include worker strikes in the Seller’s business or in the auction.
3. If, in Seller’s opinion, the force majeure will be of a temporary nature, Seller shall be entitled to suspend the performance of the Agreement until the circumstance causing the force majeure is no longer present.
4. If, in the Seller’s opinion, the force majeure situation is of a permanent nature, the Seller shall be entitled to dissolve the Agreement without being obliged to pay any compensation of damages.
5. Seller is entitled to demand payment for contractual performance in executing the relevant agreement before the circumstances causing the force majeure became apparent.
6. Any party believing that it is or will be in a situation of force majeure shall notify the other party of this immediately.
Article 10. Liability
1. Seller shall not be liable for any damage and/or injury resulting from the performance of the Agreement.
2. If Seller is nevertheless liable for any damage, that liability shall be limited to a maximum of that part of the invoice amount involved in that part of the performance of the Agreement to which the liability relates, or at least to a maximum of the invoice amount, or at least to a maximum of the total order amount, or at least to the amount of the payment to be made by Seller's insurer.
3. Seller shall in no case be liable for indirect damage, which includes consequential damage, lost profit, missed savings or damage due to operational delays.
4. The Seller shall in no case be liable for any deterioration of the item as a result of improper storage, processing, use or maintenance by the Buyer or a third party.
5. The Seller shall in no case be liable for damage ensuring from incorrect use of the item, not in accordance with the instructions for use or the directions given by the Seller, or for any use other than that for which the item is intended.
6. The Seller shall in no case be liable for damage resulting from any advice given. Advice is always given on the basis of the facts and circumstances known to the Seller and in mutual consultation, whereby the Seller always takes the intention of the Buyer as its guide and starting point.
7. Buyer indemnifies Seller against any claims from third parties who sustain damages in connection with the performance of the Agreement and the cause of which is attributable to Buyer.
8. Buyer must investigate in advance whether the purchased item is suitable for the purpose for which it will use the purchased item. If it is subsequently found that the purchased item is not suitable for the purpose, the Buyer cannot hold the Seller liable for any resulting damages.
9. The limitations of liability for direct damages as set forth in this article will not apply if the damage is attributable to intent or gross negligence on the part of Seller or its subordinates.
Article 11. Claims
1. Any claims will only be taken into consideration by the Seller if they have reached it directly, in writing, within 5 days after delivery of the contractual performance in question, with accurate statement of the nature and grounds for the complaints. Buyer is obliged to give Seller the opportunity to record any defects.
2. Claims relating to invoices must also be submitted in writing and within 5 days of the delivery date, unless the nature of the goods entails a shorter claim period.
3. After expiry of these deadlines, the Buyer shall be deemed to have approved the delivered goods or the invoice. At that point, Seller we will no longer accept any claims in this regard.
4. Buyer shall, upon first request, enable Seller to inspect the item sold to determine the accuracy of the complaint.
5. If the claim is found by the Seller to be well-founded, it shall only still be obliged to deliver the agreed contractual performance.
6. If claims are made in good time, the Buyer shall remain obliged to take delivery of and pay for the purchased goods.
7. If the Buyer wishes to return defective goods, it shall do so with the prior written permission of the Seller. Returns should be sent carriage paid in undamaged condition and original packaging with a return form.
8. Seller may require that complaints regarding the soundness of the goods delivered be demonstrated in writing by Buyer through an independent expert, possibly to the exclusion of any other means of proof.
Article 12. Warranty
1. Warranty shall only apply if this is agreed in writing.
2. This warranty is limited to manufacturing defects that may occur and in principle consists of replacement of the delivered goods. Items that have been altered, modified, processed or worked on by Buyer or a third party are excluded from warranty.
3. The Seller will not provide a longer warranty on parts or additions purchased from third parties than the warranty this third-party supplier provides to the Seller.
4. The warranty shall lapse if the Buyer and/or third parties engaged by it use the delivered goods improperly, carelessly and/or injudiciously.
5. If the Buyer does not fulfil any obligation ensuing from the Agreement concluded between the parties in full, or in a timely manner, the Seller is not obliged to provide any warranty for as long as this situation persists.
Article 13. Retention of title
1. Delivered goods shall remain Seller’s property until such time as all its deliveries and work performed or to be performed under the Agreement, including interest and fees, have been paid by Buyer. In the event of moratorium, bankruptcy, suspension of payment, liquidation of the Buyer, or death if the Buyer is a natural person, the Seller shall be entitled to cancel the order in full or in part without notice of default or legal intervention and to reclaim the unpaid portion of the delivered goods. Cancellation and repossession shall not affect Seller’s right to compensation for loss or damages. In such cases, any claim of Seller against Buyer shall be due and payable immediately and in full.
2. If third parties levy an attachment against the products delivered subject to retention of title or wish to create or enforce rights in respect thereof, the Buyer will be obliged to notify Seller thereof as quickly as possible.
3. The Buyer is obliged to keep all goods delivered under retention of title with the necessary care and recognisably as the Seller’s property, and to insure them at new-for-old value against all the usual risks. The damages paid out by the insurer shall take the place of the aforementioned items and shall accrue to the Seller.
4. The Seller shall be entitled at all times to remove or cause to be removed the goods delivered under retention of title from the Buyer or its holders, if the Buyer does not properly fulfil its obligations to the Seller. Buyer will provide all necessary cooperation and access in this regard upon Seller’s first request. Returned goods will be credited on the basis of the current market value, minus the recovery costs incurred by the Seller.
5. The goods may be resold or used by the Buyer as part of its normal business activities, but may not be given as collateral nor serve as security for a claim by a third party.
6. As security for correct payment of all its claims, on any account whatsoever, the Seller shall also acquire - as soon as the claim arises - a non-possessory pledge on all those goods in which the goods delivered by it have been processed or of which they form part. The order signed by the Buyer and the subsequent written acceptance by the Seller shall be deemed to be a private deed as referred to in the law.
Article 14. Payment
1. Unless otherwise agreed in writing, payment must be made in cash without discount or deduction upon delivery, or by means of deposit or transfer to a bank or giro account designated by the Seller within the period stipulated by the Seller. The value date indicated on the Seller’s bank/giro statements shall be decisive and shall therefore be regarded as the day of payment. In no event will any objections to the amount of the invoices suspend the payment obligation.
2. All payments made by the Buyer shall be applied primarily to settle any interest and collection costs incurred by the Seller and subsequently to settle the oldest outstanding invoices.
3. If the Buyer has issued direct debit authorisation for the purpose of paying the Seller’s invoices and a collected amount is reversed, the Buyer shall undertake to pay the relevant invoice amount to the Seller immediately by other means.
4. If the Buyer: a. is declared bankrupt, cedes its assets, submits a request for a moratorium, or if all or part of its his assets are seized; b. dies, is placed under guardianship or is dissolved; c. fails to comply with any obligation incumbent on it by virtue of the law or these Terms and Conditions; d. fails to pay an invoice amount or part thereof within the stipulated period; e. discontinues or transfers its business or an important part thereof, including the contribution of its business to an existing company or one to be established, or changes the objective of its business; the single occurrence of one of the aforementioned circumstances shall entitle the Seller to dissolve the Agreement or to charge the Buyer any amount due in full pursuant to the services provided by the Seller, immediately and without any warning or notice of default being required; all without prejudice to the Seller’s right to compensation of costs, damages and interest.
Article 15. Interest and fees
1. If the Buyer fails to make payment within the agreed period, the Buyer shall legally be in default. The Buyer will then owe interest of 2% per month or part thereof, unless the statutory interest rate or statutory commercial interest rate is higher, in which case the highest interest rate shall apply. The interest on the payable amount will be calculated from the moment that Buyer is in default until the moment that the full amount is paid.
2. All judicial and extrajudicial costs to be incurred shall be borne by the Buyer. The legal costs include all actual costs of legal and procedural counsel incurred during legal proceedings, which exceed the liquidation rate. The extrajudicial collection costs shall be at least 15% of the amount - including the aforementioned interest - owing by the Buyer.
Article 16. Intellectual property
1. If items such as models, drawings, designs and the like that are produced by or on behalf of the Seller in the preparation or execution of the Agreement are subject to intellectual or industrial property rights under the law, these rights shall accrue to the Seller in full.
2. Buyer warrants to Seller at all times that the use of data provided by Buyer or otherwise will not cause Seller to violate any legal requirements or protected rights of third parties. Furthermore, Buyer shall fully indemnify the Seller against all direct and indirect consequences of claims which third parties may assert against the Seller pursuant to a breach of this warranty.
Article 17. Applicable law
All Seller’s offers, agreements and their implementation shall be governed exclusively by Dutch law. The Vienna Sales Convention is expressly excluded.
Article 18. Disputes
The court in the Seller’s place of domicile shall have exclusive jurisdiction to hear disputes. Nevertheless, Seller will be entitled to submit the dispute to the court that has jurisdiction according to the law or to an Arbitration Board.