1.1. These general terms and conditions apply to, and form an inseparable part of, every offer, quotation and agreement relating to products of whatever nature to be delivered by Company Fits established in Apeldoorn (NL), hereinafter referred to as the 'user', unless explicitly agreed otherwise in writing.
1.2. In these general terms and conditions, 'the customer' means: any natural or legal person who orders or buys goods from or through the user.
1.3. Derogation from these terms and conditions is only possible after explicit agreement to do so in writing between the parties.
2. Establishment and amendment of the agreement
2.1. All offers and quotations made by the user, in whatever form, are without obligation, unless the offer includes an acceptance term. An agreement is concluded by written confirmation from the user or actual execution by the user.
2.2. All indications in offers, quotations or agreements and their attachments, such as images, drawings, sizes, weights and colours. Minor deviations are therefore not for the account and risk of the user.
2.3. The user is not obliged to fulfil any obligations or to pay compensation that is the result of obvious textual errors or mistakes in the user's offers, even after the conclusion of the agreement.
3. Execution of the agreement
3.1. Delivery takes place according to the applicable Incoterm: Ex Works. If the customer refuses to take delivery at the agreed time, or is negligent in providing information or instructions that are necessary for the delivery, the user is entitled to store the products at the expense and risk of the customer.
3.2. Goods are considered to be delivered as soon as the user has informed the customer that the goods, whether wholly, partially or not assembled, are ready at the user's premises or at a third party's premises for collection by the customer or to be shipped on behalf of the customer. From the moment of delivery, the delivered goods are at the risk of the customer.
3.3. If the parties explicitly agree that the user is responsible for shipping the products, both the costs and the risk of loss or damage during shipping are for the account of the customer.
3.4. The delivery periods in offers, quotations, agreements or otherwise stated by the user are always based on the best of the user's knowledge. These periods will be observed as much as possible, but they are not binding.
4.1. All prices are in euros and are exclusive of VAT and other government charges. Any special extra costs relating to the import or customs clearance of goods to be delivered by the user to the customer are not included in the price, and are therefore at the expense of the customer.
4.2. The amounts shown in the user's offers are based on the prices, exchange rates, wages, taxes and other factors relevant to the price level at the time of the offer. If, after the order confirmation, one or more of the aforementioned factors change, the user is entitled to adjust the agreed price accordingly. If a price is increased pursuant to this provision, and the increase amounts to more than 10% of the total agreed amount, the customer has the right to dissolve the agreement in writing within eight days after the customer has become aware, or could have become aware, of the price increase.
5.1. Payment must always be made within 30 days of the invoice date, unless agreed otherwise. The customer is not entitled to set off any claim against the user against the amounts charged by the user5.2. Gebruiker heeft steeds het recht om af te leveren of geleverde zaken per deellevering te factureren.
5.2. The user always has the right to deliver and invoice delivered goods in partial deliveries.
5.3. Payment is by deposit or transfer to a bank or giro account designated by the user. The user always has the right to demand security for the payment or advance payment both before and after the conclusion of the agreement, where execution of the agreement may be suspended by the user until the security has been provided and/or the advance payment has been received by the user. If advance payment is refused, the user is authorised to dissolve the agreement and the customer is liable for any resulting damage suffered by the user.
5.4. The user is entitled to suspend the delivery of products in its possession to the customer in connection with the execution of the agreed work until all payments due by the customer to user have been paid in full.
5.5. If payment is not made on time, the customer is in default by operation of law without a notice of default being required. From that moment on, the customer owes the user statutory commercial interest as referred to in Book 6, Article 119a of the Dutch Civil Code.5.6. Ingeval na het verstrijken van een bij schriftelijke aanmaning gestelde nadere betalingstermijn nog geen betaling ontvangen is, is de klant een boete verschuldigd gelijk aan 10 % van de door de klant aan gebruiker verschuldigde hoofdsom inclusief BTW, ongeacht of gebruiker buitengerechtelijke incassokosten heeft moeten maken en onverminderd het recht van gebruiker om schadevergoeding te vorderen.
5.6. If no payment is received after the expiry of a further payment term set by written notice, the customer must pay a penalty of 10% of the principal amount owed by the customer to the user, including VAT, regardless of whether the user has had to incur extrajudicial collection costs and without prejudice to the user's right to claim compensation.
5.7. Without prejudice to the other rights of the user pursuant to this article, the customer must reimburse the user for the collection costs incurred by the user where these involve more than sending a single summons or simply making an unaccepted settlement proposal, obtaining simple information or compiling the case in the usual way. These costs are determined on the basis of the guidelines applicable at that time at courts in the Netherlands.
5.8. The applicability of Book 6, Article 92 of the Dutch Civil Code with regard to the penalty clause included in this article is excluded.
6.1. If the user provides the customer with a guarantee with regard to the work or products delivered or to be supplied by it, it will explicitly provide the customer with written notice of this. In the absence of such an express written notice, the customer cannot invoke the guarantee, without prejudice to the customer's legal rights arising from mandatory legal provisions.
6.2. If there are grounds to a claim under the customer's guarantee, the user will, at its discretion, repair the products to be delivered or deliver as agreed, unless this is demonstrated to be useless for the customer. If the user notifies the customer that it will proceed with the repair, the customer will make the delivered products available to the user again, at its expense and risk.
6.3. The guarantee obligations of the user lapse if errors, defects or imperfections with regard to those items are the result of incorrect, careless or incompetent use or management of delivered items by the customer or third parties engaged by the customer, or if they are the result of external causes such as fire or water damage, or if the customer or a third party has made changes or had changes made to the goods delivered by the user without the user's permission.
7.1. Any complaints about a product delivered by the user must be immediately communicated by the customer to the user in writing with reasons. If 21 days have passed after delivery of the products, customer complaints can no longer be accepted, unless the defect was not perceptible at the time of delivery during careful and timely inspection. In that case, the customer must inform the user of the defect in writing with reasons within 14 days after the customer became aware of the defect.
7.2. The user is not obliged to accept returns from the customer unless prior written consent has been given. Under no circumstances does reception of return shipments imply acknowledgment by the user of the reason given by the customer for the return shipment. The risk with regards to returned products lies with the customer until the products have been credited by the user.
7.3. If the customer claims against any agreed guarantee but the claim subsequently proves to be unjustified, the user has the right to charge the customer for its activities and costs of investigation and repair that resulted from the appeal in accordance with its usual prices.
8. Retention of title
8.1. All products to be delivered and delivered by the user remain the property of the user under all circumstances, until the customer has complied with all claims from the user, including in any case the purchase price, extrajudicial costs, interest, fines and any other claims as referred to in Book 3, Article 92, Paragraph 2 of the Dutch Civil Code.8.2. De klant is gehouden de onder eigendomsvoorbehoud afgeleverde producten met de nodige zorgvuldigheid en als herkenbaar eigendom van gebruiker te bewaren.
8.2. The customer must keep the products delivered under retention of title with due care and as the recognisable property of the user.
8.3. The customer is not authorised to pledge, otherwise encumber or transfer in whole or in part the products delivered under retention of title to third parties until the ownership of the products has been transferred to the customer, except insofar as this transfer is carried out in the course of the usual business activities of the customer.
8.4. If the customer fails to fulfil its payment obligations to the user, or if the user has good reason to suspect that the customer will fail in those obligations, the user is entitled to take back the goods delivered under retention of title. The customer will cooperate and grant the user free access at all times to its sites and buildings for the purpose of inspecting the goods and exercising its rights. After repossession, the customer will be credited for the market value, which can in no case be higher than the original price that the customer agreed with the user, less the repossession costs that arise for the user.
9. Dissolution and termination
9.1. The customer is deemed to be in default if it does not fulfil any obligation under the agreement in good time, and if the customer does not comply with a written reminder to fully comply within a set reasonable period..
9.2. If the customer defaults, the user is entitled, without any obligation to pay compensation and without prejudice to its rights, to dissolve the agreement in whole or in part by means of a written notification to the customer, and to immediately claim the amount owed by the customer to the user in its entirety, and invoke the retention of title.
9.3. The user is authorised to dissolve the agreement with immediate effect if the customer applies or is filed against for suspension of payment or bankruptcy, or if all or part of its assets are seized. All invoices then immediately become due and payable, and the user will never be obliged to pay any compensation because of this termination.
10. Force majeure
10.1. The user is not liable if a shortcoming is the result of force majeure. During the period of force majeure, the user's obligations are suspended. If the force majeure prevents the user from fulfilling its obligations and lasts longer than three months, both parties are entitled to dissolve the agreement without judicial intervention, without any obligation to pay compensation in this respect.10.2. Onder het begrip ‘overmacht’ als bedoeld in dit artikel wordt in ieder geval verstaan, onvoorziene omstandigheden, ook van economische aard, welke buiten schuld of toedoen van gebruiker zijn ontstaan, zoals onder andere ernstige storing in het bedrijf, noodgedwongen inkrimping van de productie, stakingen en uitsluitingen, zowel bij gebruiker als bij toeleveringsbedrijven, oorlog, vijandelijkheden, staat van beleg, mobilisatie, hetzij in Nederland hetzij in enig ander land waar eventuele vestigingen van gebruiker of van toeleveringsbedrijven zijn gevestigd, vertragingen in het transport of vertraagde of foutieve levering van zaken of materialen of onderdelen door derden waaronder begrepen toeleveringsbedrijven van gebruiker.
10.2. The term 'force majeure' referred to in this article means in any unforeseen circumstances, also of an economic nature, which arise through no fault or action of the user, such as, among other things, serious problems in the company, forced reduction of production, strikes and lockouts, both at the user and at supply companies, and war, hostilities, state of siege, mobilisation, either in the Netherlands or in any other country where the user of supply companies have any branches, and delays in transport or delayed or incorrect delivery of goods or materials or parts by third parties, including the user's suppliers.
10.3. If the user has already partially fulfilled its obligations when force majeure occurs, or can only partially fulfil its obligations, it is entitled to invoice the previously delivered or deliverable part separately, and the customer must pay this invoice as if it concerned a separate agreement.
11.1. The user is only liable for damage suffered by the customer if and insofar the damage is the direct result of intent or deliberate recklessness on the part of the user's managers.
11.2. The total liability of the user is always limited to compensation for direct damage, whereby the total amount to be paid by the user to the customer by virtue of any reversal obligations and compensation for damage will never exceed the maximum price (excluding VAT) stipulated in the respective agreement.
11.3. The user is not liable for damage if and insofar as the customer has taken out insurance, or could reasonably have taken out insurance, against the damage in question.
12. Disputes and applicable law
12.1. The interpretation of any uncertainty about one or more provisions of these general terms and conditions must be 'in the spirit' of these general terms and conditions
12.2. Dutch law applies to agreements concluded with the user. Non-Dutch legislation and treaties, including the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Sales Convention), are excluded.
12.3. Any disputes relating to this agreement or arising from this agreement will in the first instance be settled exclusively by the competent court in the district in which the user is established at the time this agreement was concluded.
Explanation of the general terms and conditions
A number of choices were made when drawing up this model. Some of them are explained:
- The model concerns general terms and conditions designed for B2B customers. If the intention is to sell products to consumers or via an e-store, additional provisions are desirable and possible.
- The provisions in the general terms and conditions are often written in favour of the interest of the selling party; the user of the terms and conditions. The conditions are therefore not customer-friendly by definition. There may be grounds to include provisions that better meet the interests of the customer, depending on, for example, conditions that are customary in the relevant industry or the type of customer.
- The general terms and conditions are designed for a company that sells products. If you provide services, the conditions will have to be adjusted accordingly. This also applies if you manufacture the products to be sold, or if those products are produced on your behalf and you are designated as a manufacturer.
- General terms and conditions can of course include more and other matters than in this model. Examples include:
- protection of intellectual property;
- agreements regarding confidentiality of information;
- description of a return procedure;
- agreements about returning models, drawings and other documents at the end of an agreement;
- further rules regarding the ordering method for customers;
- costs and liability regarding the engagement of third parties in the execution of work;
- description of the properties that the delivered goods must meet;
- price indexation for long-term agreements;
- provisions regarding custom-made products.