Article 1: applicability of the general terms and conditions
1.1. The General Terms of Sale of Van de Lande apply to all offers of Van de Lande to buyer and all contracts of sale between Van de Lande and buyer and all continuous or resultant agreements.
1.2. Deviations from the Van de Lande General Terms of Sale will only be in force if and insofar as these have been documented and Van de Lande and buyer have agreed to this in writing.
1.3. Any general terms and conditions employed by buyer shall be expressly regarded inapplicable and hereby rejected by Van de Lande, unless the latter explicitly accepts the applicability thereof in writing.
Article 2: realisation of agreements, supplements and modifications
2.1. Van de Lande has issued a quote to buyers which not only expresses the products and services but also the basis of purchase buyers can employ. This could be a specific quote or a general offer. Buyer can accept the offer by placing an order. The contract of sale shall in that case be realised after Van de Lande accepts the buyer’s order by delivering these products and sending the invoice. The content of the agreement is laid down in writing on the confirmation Van de Lande has extended to buyer in such documents as packing list and invoice, unless Van de Lande has explicitly provided otherwise with respect to a number of matters in writing.
2.2. The contents of the invoice is binding for both parties if the other party has failed to challenge these within five workdays of billing date. The same applies to any potential supplements and / or modifications in an agreement.
Article 3: offers
3.1. All Van de Lande quotes, prices and delivery times are free of obligation. Van de Lande is at liberty to revoke the offer at any time. Revocation of an offer is still possible, even after buyer’s acceptance, provided this is done immediately.
3.2. The buyer’s acceptance of an offer issued by Van de Lande, which diverges from that offer, applies as a rejection of said offer and is therefore a new offer that is not binding for Van de Lande.
Article 4: prices
4.1. Unless explicitly stated otherwise in the agreement the prices specified therein exclude VAT, but include packing costs, based on delivery ex factory.
4.2. If one or more cost factors are subjected to change within one month of the price quote / agreement and before delivery, Van de Lande will be entitled to adjust the agreed price accordingly. Van de Lande shall notify buyer hereof thus allowing buyer to exercise his right to cancel the contract of sale. Cost factors in these general terms of sale are understood to be government-imposed taxes, import duties, levies or other charges.
Article 5: delivery times
5.1. Barring delivery on stock, date of delivery is an approximation only and has been laid down in a prior agreed delivery schedule where the dates of delivery as well as the quantity of delivery have been included, if necessary this schedule shall also state the space of time that is required for the design and calculation works essential to production, as well as the date on which the buyer has to approve the drawings produced by Van de Lande.
5.2. If call order delivery has been agreed and buyer fails to make the call prior to the agreed delivery date, and is given notice of default, Van de Lande is hereby entitled:
* To dissolve the contract of sale or part thereof, leaving intact the right of Van de Lande to compensation, or;
* To demand payment for the quantity for which call failed to take place or which was not taken into reception.
After payment, the title of the products in question shall pass to buyer, leaving unimpaired the right of Van de Lande to remove the products from its premises and warehouse them elsewhere and to annihilate the products after three months at the expense and risk of buyer. Buyer is held to pay all respective costs to Van de Lande.
5.3. If call order delivery has been agreed but no instalment terms are set, Van de Lande is authorised to summon buyer by registered missive to set a new delivery term of not more than three months within eight workdays of receiving the missive for the products that were not called in after three months of purchase, said new delivery term, within which time all products shall be called in, shall be consecutive to aforementioned period of eight workdays. Buyer is obligated to respond to this summon in good time, failing this, the provision in sub 2 shall apply.
5.4. Unless otherwise agreed in writing, the specified delivery dates are an approximation only, applicable as the engagement’s date of receipt and never as a deadline. Van de Lande shall endeavour to observe the specified delivery time as much as possible, however, if this date is exceeded, buyer shall afford Van de Lande a delivery term of at least ten workdays in writing to allow for delivery, or performance, prior to invoking overdue delivery time.
5.5 Van de Lande is entitled to carry out its contractual performances in instalments
Article 6: inspection
6.1. Buyer has the right to inspect the products at his own expense. If buyer has requested this in so many words, Van de Lande is obligated to notify buyer of the time and place of inspection well in advance of shipment. The inspection should take place at the factory prior to shipment, in compliance with previously agreed and confirmed inspection requirements or samples and methods of inspection, as well as the reinspection of the terms of sale. Slight anomalies in size, colour and model, provided they are within the limits of applicable industry standards, shall not be ground for rejection.
6.2. Buyer shall notify Van de Lande of any potential rejection and the reason for this in writing as soon as possible, at any rate within three workdays counting from the day after (the completion of) the inspection, failing this, Van de Lande is not obligated to accept any complaint with respect to the products. Van de Lande shall see to the defects within a reasonable term and present the products for inspection in conformance with the condition specified in sub 1.
Article 7: delivery, risk and acceptance
7.1. Without prejudice to the previous conditions in the Van de Lande General Terms of Sale the products are deemed to be delivered by Van de Lande and accepted by buyer in the following events:
a. Delivery ex works: as soon as the products have been loaded in or on the means of transport.
b. Delivery free domicile: as soon the products have been delivered on-site and – if such has been agreed by or on behalf of Van de Lande – unloaded at the buyer’s designated workplace or warehouse. Van de Lande is entitled to arrest the vehicular transport of the products at any juncture on buyer’s access road insofar as Van de Lande/carrier find that the roadway is not ridable (has not been made ridable). Delivery always takes place on vehicle, and buyer is obligated to take reception of the products at that point. Unloading outside of working hours can take place subject to the approval of Van de Lande/carrier. Van de Lande is entitled to recover from buyer any damage caused by buyer’s failure to observe his obligations.
7.2. Upon their delivery, the risk of damage, loss, and any consequential damage to the products shall pass to buyer.
Article 8: filing a complaint
8.1. Buyer shall inspect the products for defects upon their arrival. Buyer is deemed to have accepted the products if upon their shipment, which is at the expense and risk of Van de Lande, he fails to immediately notify any damage and / or defects detected upon arrival, on the return road waybill, delivery note/packing list or similar document. Defects, other than those specified in the previous sentence, are to be immediately notified to Van de Lande in writing, failing this, Van de Lande will not accept any complaints with respect to the relevant products.
8.2. Buyer is accountable for the consequences of providing Van de Lande with any information that is essential for the correct execution of the engagement, if and insofar as this information is in any way ambiguous.
8.3. If Van de Lande acknowledges any objections with respect to the products delivered, it is obligated, in consultation with the buyer, to replace said products, or to credit buyer for said delivery or a part thereof.
8.4. Products delivered and accepted shall not be taken back.
Article 9: quantity
9.1. A road waybill, delivery note/packing list or similar document provided with the delivery of the products is deemed to contain a correct representation of the quantity of the products delivered, unless buyer notifies Van de Lande of his objection to these on the road waybill, delivery note/packing list or similar document.
9.2. Buyer is not entitled to suspend payment for any quantities delivered, even if he were to notify Van de Lande in good time and in compliance with the conditions laid down in the previous paragraph, that he has taken delivery of another quantity other than what was specified on the road waybill, delivery note/packing list or similar document that accompanied the delivery.
Article 10: payment and retention of title
10.1. Van de Lande shall retain its title on the products delivered until buyer has fulfilled all his payment obligations with respect to the sale and delivery of said products, which also include interest and costs.
10.2. Once all claims have been settled in full, as meant in the previous paragraph, the title of the products shall pass to buyer.
10.3. If, pursuant to the statutory rules, buyer is to furnish his VAT number to Van de Lande, he shall be liable for all the consequences that could arise if the number were incorrect.
10.4. Payment shall take place within 30 days after the billing date, unless buyer and Van de Lande have agreed to another payment term in writing.
10.5. All payments must take place without any deduction and / or appeal to setoff, save for the settlement of a credit note from Van de Lande.
10.6. Without prejudice to the conditions elsewhere in these terms of sale, if buyer were to request a delivery schedule that is at variance with the agreed-upon delivery schedule, he shall be owing payment in full, less the payable transport costs, not later than 30 days after the initially agreed upon delivery time.
10.7. If and insofar as Van de Lande has failed to receive payment for the delivered products that are still under reservation of title, it is entitled to recollect said products without notice of default and judicial intervention, and, insofar as necessary, buyer shall grant full and irrevocable authority to Van de Lande to reclaim its products; thus in the spirit of the aforementioned buyer is obligated to grant Van de Lande access to all accessible locations and / or spaces in use on his premises, without prejudice to Van de Lande exercising its right to claim compensation from buyer.
10.8. Within the framework of the exercise of his normal profession, buyer is authorised to sell and deliver the products that are delivered and owned by Van de Lande. Buyer shall lose this authority if he fails to observe his obligations towards Van de Lande, whereby the latter mentioned is entitled to withdraw in writing this authority.
10.9. Van de Lande is at all times authorised to require from buyer advance payment or satisfactory security for the observance of his obligations, which also include collection charges and interest, even if these obligations have not yet become callable. Buyer’s failure to meet such a demand promptly will entitle Van de Lande to suspend or discontinue the delivery of products and services with immediate effect and buyer shall be in default, without any further notice of default. In that case, upon Van de Lande’s first request buyer shall be obligated to create a pledge on his chattels in favour of Van de Lande.
10.10. Buyer is hereby prohibited from creating a possessory or undisclosed lien in favour of (a) third parties (party) on delivered and as yet unpaid products of Van de Lande.
10.11. Buyer is by law in default with respect to overdue payment. To that end all invoices issued by Van de Lande shall be payable forthwith. If in default, a late payment interest of 1,5% per month - including part of a month – on the unpaid balance shall be charged to buyer on the past due amount, without any further notice of default.
10.12. If the counter-party is in default he shall, after having received a written notice of default from Van de Lande within ten days, be held accountable for all damage and costs that fall within the scope of judicial and extrajudicial collection charges. The extrajudicial collection charges are payable in conformity with the collection rates advised by the Nederlandse Orde van Advocaten (Netherlands Bar) on the due amount, being a minimum of € 200.00. Judicial costs also include the costs of legal aid for Van de Lande.
10.13. If Van de Lande practices its suspension right or dissolves the agreement or a part thereof, the costs of warehousing and / or transport incurred by Van de Lande shall be charged to buyer.
Article 11: warranty
11.1. Van de Lande shall provide a warranty term of twelve months after delivery for any material and manufacturing defects for products that buyer delivers to the end user, this could also be a maximum of eighteen months after delivery (as mentioned before). The warranty implies that Van de Lande shall repair the defects at its own expense or – at the election of Van de Lande – recollect and replace the products or a part thereof. If, for the sake of fulfilling its guarantee obligation, Van de Lande replaces the products delivered, the replaced products shall become the property of Van de Lande. All costs, such as transport costs, travel expenses and costs of disassembly and assembly, in excess of the abovementioned obligation are for the account of the principal.
11.2. Van de Lande’s warranty does not apply:
a. If the defects are a result of improper use or causes other than poor material or manufacturing imperfections; If the cause of the defects cannot be shown clearly.
b. Van de Lande shall not provide any additional warranty for another supplier’s products that extends beyond the warranty of said supplier.
Article 12: liability
12.1. Van de Lande’s liability is restricted to observing the obligations set forth in the warranty mentioned in the previous article.
12.2. Save for intent or gross negligence on the part of Van de Lande or its executive staff, Van de Lande is not liable for damage suffered by buyer as a result of incorrect composition, structure or dimension and / or inadequate quality of the products delivered. Consequential damage is hereby expressly precluded, as Van de Lande cannot in any way exercise influence on the end user’s method in applying the products.
12.3. Each contractual and / or statutory obligation of Van de Lande, including consequential damage or loss of profit or time, is at any rate restricted to the maximum purchase price/order amount. Van de Lande has insured itself against potential damage and is thereby solely liable for the amount that the insurance shall pay under the policy. Van de Lande is not liable for any damage under force majeure.
12.4. Buyer fully indemnifies Van de Lande from all third party claims – and all resultant costs – with respect to the liability for any damage that Van de Lande has excluded.
12.5. Van de Lande shall not accept any liability if and insofar as the quality criteria that have been set and confirmed in writing by buyer diverge from the quality criteria employed by Van de Lande.
Article 13: force majeure
13.1. As shortcoming in the observance of the agreement, which cannot be attributed to Van de Lande, applies each circumstance which Van de Lande in all fairness had not needed to heed upon entering into the agreement, and as a result of which the normal execution of the agreement cannot in all fairness be expected of Van de Lande, which includes, but is not limited to, non-delivery, failure to deliver in due time or improper delivery by its suppliers, default of the carriers that were engaged at the time of executing the agreement, obstruction of traffic, war and threat of war, import and export embargos or other measures of any Dutch or foreign higher or lower government agencies which render the execution of the agreement (provisionally) impossible, frost, strike, sit-ins, loss or damage during transport, fire, water damage, theft, interruption in the delivery of raw materials and consumable supplies or power and machine defects.
Article 14: dissolution/termination
14.1. Insofar as it is not otherwise provided for in these terms and conditions, if an agreement is partially or fully dissolved, buyer is owing full payment for products produced for him under this agreement or products and activities that are executed for buyer by third parties involved. If buyer cancells an agreement it has effected with Van de Lande, prior to Van de Lande or parties involved producing the products under that agreement and no calculation and / or design work has been carried out, buyer shall be owing to Van de Lande a compensation on a par with 15% of the invoice amount of the order, exclusive of VAT, this shall leave intact the right of Van de Lande to full compensation.
Article 15: applicable law and competent Court
15.1. Netherlands law is applicable to all disputes. Applicability of the Vienna Sales Convention will be excluded, where possible.
Version : 02-2016-01