General Terms and Conditions (of sale, delivery and payment)
The private limited liability company under The Laws of the Netherlands Verbo B.V., having its seat of business and holding its offices in Tilburg, the Netherlands, at Zevenheuvelenweg 8-10. Verbo has been registered in the Trade Register of the Chamber of Commerce for West-Brabant under number 18047.170.
1.1 Unless the contrary has been agreed explicitly and in writing is, these General Terms and Conditions are applicable to all our offers, to orders received by us from the Buyer, and on the sale and delivery of all our articles, also if the agreement is concluded as a consequence of an acceptation of an offer from the side of Buyer. 1.2 These General Terms and Conditions are also applicable to all agreements with Verbo for the execution of which third parties must be involved.
1.3 Possible deviations from these General Terms and Conditions are only valid, if these have been agreed explicitly in writing.
1.4 The applicability of possible (General) Terms and Conditions of purchase or otherwise of Buyer will be explicitly rejected.
1.5 If one or more stipulations in this agreement are invalid or shall be invalidated, then the other stipulations of these General Terms and Conditions shall remain fully in force. Verbo and Buyer shall in that case enter in consultation to agree new stipulations for the replacement of the invalid or invalidated stipulations, whereby if and as much as possible, the purpose and the tenor of the original stipulation shall be observed.
2. Designated offers
Our offers and price statements are – if applicable – only valid for a period explicitly stated therein, and are also otherwise entirely non-binding, as well as our communications concerning qualitative features, etc. of our articles, unless the contrary has been stated explicitly and in writing. A displayed sample applies solely as an indication and does not oblige us ever to deliver a similar good. The prices stated in this offer are each time exclusive of VAT, unless stated otherwise.
3.1 Except for orders that (also) concern trade goods (raw materials) applies, that an order will be accepted solely by Verbo by written or electronic confirmation of the order.
3.2 Only if and insofar our order confirmation deviates to the detriment of Buyer from the order or is otherwise not correct, then Buyer can still object there against during 24 hours after shipment of the order confirmation by Verbo, and his objection is regarded –if it has not been met from our side – will be regarded as withdrawal of his order.
4.1 The sales prices stated by us and/or agreed with us are based on taxes, levies, purchase prices, exchange rates etc., such as these exist and apply on the moment on which the agreement with Buyer will be concluded. Unless agreed otherwise, all our prices are ex-factory Tilburg, the Netherlands, and these are in USD exclusive of VAT and exclusive of the costs of transport to the destination desired by Buyer and other costs related with the transport.
4.2 Unless explicitly agreed otherwise, we are authorized to review upon each change in the amount or the percentage of the taxes, levies and
rights, as well as upon a change of our purchase price or the exchange rate thereof, after conclusion of the agreement the sales price or sales prices ultimately due by Buyer, and to bring these in accordance with the emerged change into account to Buyer.
4.3 If with Buyer it is agreed, that we in commission, and for the account and risk of Buyer let transport costs be part of the sales agreement, then the stipulations of the article apply regarding these costs.
5. Delivery time
5.1 Delivery times included in the order or order confirmation, shall be maintained as much as possible, but never form a fatal term for Verbo, unless agreed otherwise in writing.
5.2 Except for in case an ultimate and fatal delivery date is agreed in the manner, in the wording and with the consequences as described in section 1 of this article, Buyer shall not be able to reproach us for exceeding of the delivery term, than after he has offered us – in case of a possible exceeding – firstly and after all a reasonable term of at least 30 days within which we can comply with our obligations after all. Exceeding of this term gives to Buyer the right to dissolve the agreement. In no case we are required to compensation of damage.
5.3 If no term of delivery is agreed, delivery shall take place by us as soon as possible, or within a reasonable term in our opinion, in view of the nature of the articles and the other relevant circumstances known to us. Buyer can request us – if so desired – to establish a non-fatal term within which the articles shall be delivered, upon exceeding of which he then has the right to dissolve the agreement without that we or Buyer are required to any compensation of damage.
5.4 For agreements, whereby a whether or not ultimate delivery time of no longer than 15 working days is agreed, it applies in all instances that we still during five working days after the exceeding of the delivery date can comply with our obligations, without being in default.
6. Dissolution of the agreement
6.1 The agreement of sale is concluded by (tacit) acceptation by Verbo of a placed order.
6.2 If Buyer is in default with one of his obligations from any agreement with us, and we are authorized to dissolve that agreement, then we are authorized to proceed not only to dissolution of that agreement, but also of earlier and other agreements concluded with him, entirely or in part, and irrespective of whether these, entirely or partially, have been executed. In that case, the Buyer is obliged to deliver back to us the articles delivered to him according to those agreements upon our first request and at our discretion, such against our obligation to, insofar the articles delivered back to us have been sent by Buyer, to credit Buyer for an amount equal to 25% of the original value of the invoice, unless the articles have been manufactured specifically for this Buyer, and notwithstanding our claims to payment of delivered and articles not-received back and notwithstanding our claim on compensation of damage.
7. Place and moment of delivery
7.1 Each delivery is dispatched from factory Tilburg, the Netherlands, and takes place on the moment that the articles shall be taken there into receipt by (the transporter of) or on behalf of Buyer or have been loaded for shipment to him. From this moment, the risk is for the Buyer.
7.2 Verbo reserves the right to execute an accepted order in parts. Each part of a delivery applies as a separate and independent delivery. Verbo is authorized to invoice each partial delivery separately.
7.3 We always reserve the right to deliver COD, against advance payment or against cash payment, if this is desirable or necessary in our opinion.
7.4 If the articles despite the agreed terms with Buyer, cannot be delivered and handed over, on the address stated by him, due to circumstances, which cannot be imputed to us, we shall nevertheless be deemed to have complied with our obligation to deliver, by keeping the articles ready in our warehouse or in that of the transporter at the disposition of the Buyer during 14 working days after the date on which the articles have come ready for shipment, of which date the Buyer shall be notified in writing and by registered mail by us.
7.5 The Buyer is obliged to take the goods upon offer into receipt, respectively in the case as referred to in section 4, to accept the articles on the address stated to us. 7.6 Articles not taken into receipt or not timely collected, shall be stored for the account and risk of the Buyer. We are in no case liable for damage to the articles, if these by shortage to suitable storage room can entirely not, only partially and/or defectively be stored. The Buyer shall be liable for all additional costs, including in each case the storage costs.
8.1 Unless agreed otherwise, we arrange in commission, and for the account and risk of the Buyer the transport of the articles to the place of destination stated by Buyer. The articles to be delivered by us shall never be insured. If such will be desired by the Buyer, then he must give commission in writing to transport and to insured transport on his costs. The conclusion of the agreement of purchase brings along the commission of Buyer to us to conclude, in the name of and for the account and risk of Buyer, the transport agreement, unless agreed otherwise.
8.2 If we have obliged ourselves regarding the sold goods to the conclusion of a transport agreement, then this shall, with all that belongs thereto, be deemed to form part of the purchase agreement. If the transporter is in default, also in the case this has been contracted by us, then we are not liable for the consequences thereof; in such a case, we shall be entirely discharged towards Buyer, by assigning our relevant rights towards transporter to Buyer.
9.1 We provide no warranty, other than described in the agreement.
9.2 We do not warrant the quality of raw materials and half fabricates to be delivered, other than that these comply with normal customary quality norms upon normal use. We warrant never, also not if in advance a sample of the delivered has been provided to Buyer, that the delivered is suitable for the realization of the purpose for which Buyer wishes to apply, use or process the delivered.
9.3 For articles for which a justly claim on the warranty will be made, we shall proceed to replacement for free of the articles.
9.4 The warranty never applies for faults or defects that (also) have emerged as a consequence of external violence, use, natural wear and tear and other causes lying outside the control of Verbo, including also cleaning and/or treatment by or because of the Buyer.
9.5 Minor deviations usual in trade and/or technically unavoidable, never fall under the warranty and never oblige us to any compensation, and neither give the Buyer the right to refuse the receipt or the payment of the delivered articles. We are not liable for direct and/or indirect damage suffered by Buyer as a consequence of delayed, erroneous or improper delivery or defects of or to the delivered articles, other than in accordance with the stipulations in these General Terms and Conditions.
10.1 If Verbo should be liable, then this liability is limited to what has been regulated in this stipulation.
10.2 If we liable for direct damage, then that liability is limited to the maximum of twice the amount of the declaration, at least that part of the commission to which the liability refers, at least to the maximum of USD 25,000.00 (said: twenty-five thousand USD). The liability is always limited to the maximum of the amount of the payout to be provided by the insurer of Verbo in the prevalent case, to be increased with our own risk under that insurance.
10.3 Under direct damage will solely be understood:
– the reasonable costs for the establishment of the cause and the scope of the damage, insofar the establishment concerns damage in the sense of these General Terms and Conditions;
– the possible reasonable costs made to let the defective performance of Verbo comply with the agreement, unless these cannot be imputed to us;
– reasonable costs, made for the prevention or limitation of damage, insofar Buyer demonstrates, that these costs have resulted in limitation of direct damage as referred to in these General Terms and Conditions.
10.4 We are never liable for indirect damage, including in each case consequential damage, missed profits, missed savings and damage by enterprise stagnation.
10.5 The limitations of the liability for direct damage recorded in these General Terms and Conditions do not apply, if the damage is due to willful intent or gross fault of Verbo or our employees.
10.6 The stipulations in this article are also applicable on the third party/ies deployed by Verbo. The Buyer safeguards Verbo from claims of third party/ies.
10.7 The liability of Verbo ends in each case on the moment of re-selling by the seller. The Buyer safeguards hereby Verbo for claims of this re-buyer.
11. Inspection and reclamations
11.1 The Buyer is required to inspect the delivery upon taking into receipt, for the quantities, such as stated on the freight letter or the proof of receipt and
on the state of packaging, and will be deemed to have received the quantities described therein in a good state, if he has made no note or reservation thereof on the freight letter or the proof of receipt.
11.2 Furthermore, the Buyer is required to check the articles delivered to him within 24 hours after taking into receipt of the delivery, for compliance with the
agreement, more in particular on all capacities and characteristics that are upon outside inspection. The articles delivered to Buyer shall be deemed to be in compliance with the order confirmation, unless and insofar Buyer has made a reclamation in writing per telefax to us within 24 hours after the taking into receipt. 11.3 Reclamations regarding other visible or invisible defects can solely be made validly, if the absence thereof has been warranted by us, and furthermore, these have been reported in writing and directly to us within eight working days after taking into receipt of the articles, or – if Buyer makes it likely that he has not been able to detect a defect sooner also upon a proper inspection – within eight working days after Buyer has discovered or should have discovered these defects, such at the peril of forfeit of the right to make any claim on these defects.
11.4 After use or cleaning or after entire or partial treatment of the articles, reclamation is not possible anymore. Reclamations concerning minor deviations usual in trade and/or technically unavoidable shall be not accepted.
11.5 If a reclamation will be acknowledged by us as well-founded, then we can, and with the exclusion of any right of the Buyer to compensation of damage, let the articles be improved or be replaced free of charge.
12. Return shipments
The Buyer never has the right to send delivered articles back if and as long as we have not agreed therewith. The articles received back by us remain for the account and risk of the Buyer, for as long as we, in compliance with the stipulations in article 8 or 9 have not let be known, that we take the articles back. The granting of permission to return the articles, does not include, that we acknowledge a possible reclamation or warranty. Neither, a right to compensation of damages can be derived there from. 13. Payment/retention of title/provision of surety
13.1 Payment is payable upon demand per the date of delivery. It must in each case take place within fourteen days after date of the invoice unless stated otherwise on the invoice. Reclamations of Buyer do not give him the right to suspend his payment obligations.
13.2 Payment by the Buyer to be allocated to a certain obligation, serves primarily to reduction of the costs inclusive of the costs of legal assistance, subsequently in reduction of the appeared interest and finally in reduction of the principal sum and the current interest.
13.3 Should Buyer execute a payment that could be allocated to two or more payment obligations towards us, then the allocation takes place on the
payment obligations that the Buyer designates upon payment, in the absence of which the allocation takes place subsequently to the payment obligations payable upon demand, the most taxing, or finally to the oldest. If the payment obligations are furthermore equally old, then allocation of payment takes place proportionally.
13.4 If Buyer has not paid after the expiry of the agreed payment term, then he is immediately and by the mere expiry of the term in default by law, without that thereto a notification of default is required, and liable to pay an interest of 2% above the trade interest by law, as referred to in article 6:119a Dutch Civil Code. Then also all in-court and/or out-of-court and other costs to be made by us, will be for the account of Buyer, unless these costs are unreasonably high.
13.5 To out-of-court costs, Buyer is liable for administration costs of 1% of the outstanding amount for each payment reminder or summation to be sent by us, and furthermore the amount of at least 15% of the amount of the invoice with a minimum of USD 500.00, to be increased with VAT, if and as soon as we have handed over the collection of our claim.
13.6 The property of the sold articles is firstly transferred to Buyer, after these have been delivered to him, and all is paid by Buyer what he is due to us concerning articles delivered by us, including interest and costs become due. Also, in the case of any credit, granted by us by whichever cause to Buyer and in case of any other debt of Buyer to us, the property of goods delivered by us, is only transferred if we have given the Buyer a valid proof of discharge.
13.7 Goods delivered by us, that based on this article, fall under the retention of title, may only be sold onward in the framework of a normal execution of enterprise.
13.8 The Buyer is not authorized to vest on the delivered goods that fall under the retention of title, a lien or any other right.
13.9 The Buyer is obliged to grant all cooperation to Verbo or a third party deployed by it, to (let) the goods encumbered with retention of title be taken away, at the peril of forfeit of an injunction amount of 10% per day, to be calculated over the total due outstanding amount of the invoice by Buyer.
13.10 We are always, therefore before and after the delivery, authorized to request of Buyer, that he provides in a manner satisfactory for us, a surety in a manner to be designated by us, for the proper compliance with the total of his existing payment obligations whether payable upon demand. For as long as such surety after a request made thereto from our side, has not been put in place, then we can suspend our delivery obligation and – if Buyer, also after written
summations from our side, remains in default – dissolve the agreement with the consequences as referred to in article 6.
13.11 If the Buyer has exceeded the term within which a payment should have taken place, he has entered the state of bankruptcy, obtains preliminary suspension of payment, or is put under supervisorship, or other circumstances occur that justify the expectation that he will not comply his whether or not future payment obligations, then we have the right to dissolve the agreement(s) concluded with him, or parts thereof with the consequences as referred to in article 6. All in-court and out-of-court costs that shall be made by us in connection with the non-compliance by Buyer with his obligations or in connection with the dissolution are for his account.
13.12 The Buyer commits himself for the case that we wish to make use of our retention of title, to give back all delivered articles, also insofar these have been
paid, upon first request and on his costs, against proof of release and to grant in that regard all desired cooperation and provide information as granting access to the storage room etc. The Buyer shall warn us directly, as soon as a third party, for whichever reason, is of the opinion to have claims on the articles and/or in that regard takes or will take measures.
13.13 If we have made use of the right to take the articles back, then we have the choice to keep these articles under and to store them for the account of Buyer, until Buyer has complied with all of his obligations towards us, or to sell the articles, and to settle the proceeds with the outstanding claims against Buyer, or to dissolve the purchase agreements concluded with the Buyer, insofar concerning the goods received back, with the consequences as referred to in article 6.
14. Obligation to insure
14.1 The Buyer commits himself to manage the goods referred to as a good father of the house for the keeping and the preservation, to store these orderly and in proper view, and to insure these to the satisfaction of Verbo against fire, water damage, danger of explosion and theft, such for the benefit of Verbo, to pay the premium due for the insurance timely, and to release the policy as well as the paid premium receipts upon on first application to Verbo. Buyer shall design the insurance agreement in such a manner, that he shall be liable for an insurance premium solely per entire year.
14.2 The counterparty obliges himself upon first request of us to give a lien on all claims of the counterparty on insurers regarding goods delivered under retention of title to Verbo in the manner that will be prescribed in article 3:239 Dutch Civil Code;
– to give a lien on the claims that the counterparty acquires towards his purchasers upon selling onward of goods delivered under retention of title by us to
us, in the manner that will be prescribed in article 3:239 Dutch Civil Code;
– to earmark the goods delivered under retention of title as the property of Verbo;
– to grant in another manner cooperation to all reasonable measures that Verbo wishes to take for the protection of its property right regarding the goods, and which do not unreasonably hinder the counterparty in the normal execution of his enterprise.
15. Force majeure
15.1 Circumstances, that hinder, make burdensome or delay the production, the delivery or the shipment to us or to the Buyer, because of circumstances that cannot be imputed to us, including in each case strike of or solely, shortage of labor force, both within and outside our enterprise, shortage of suitable means of transport, blockade in traffic by land, water or air, default from our supplier(s), transporter(s) or other third parties deployed by us, and all other misfortunes of whichever nature, shall relieve us from our obligations, deriving from the agreement concluded with the Buyer or shall suspend the compliance therewith, without that we are obliged in that regard to pay in that regard any compensation of damage.
15.2 Notwithstanding the other concerned stipulations, in these General Terms and Conditions, we are only liable for damage, if the Buyer proves that that damage is the consequence of our willful intent or gross fault equivalent to that. We are in no case whatsoever liable for any damage or loss, caused by errors of third parties, which have been deployed by us in the execution of the agreement.
16.1 The agreement with Buyer will be governed by the Laws of the Netherlands. All disputes, deriving from or connected with agreements with Buyer, shall be resolved – notwithstanding the competency of the District Court, sector Canton – by the competent court in Breda, the Netherlands, unless we would decide to approach the court (also) competent with regard to the Buyer, or to subject us to the judgement of such another court.
16.2 In the case that, by whomever, will be decided to instigate a procedure for examination and/or analysis of the product delivered by us, the costs thereof shall always be paid by the party, that has been proven wrong by the evidence.
17. Final stipulation
Unless the contrary has explicitly been set forth in writing, the relation between us and the Buyer will be governed by these General Terms and Conditions and by possible special Terms and Conditions stated on the order confirmation, such with the exclusion of (general) terms and conditions, that Buyer has declared applicable or wishes to be applicable in any manner whatsoever. The text of these General Terms and Conditions in the language of the Netherlands, shall prevail over the text of a translation in a foreign language in case of a contradiction between them.
These General Terms and Conditions of sale and delivery have been filed for the first time at the Court Clerk’s Office of the District Court in Breda, the Netherlands. (2010)