Table of contents
1. Definition of terms
2. General
3. Offer and acceptance
4. Delivery periods, implementation and amendment of the agreement
5. Packaging and shipping
6. Prices
7. Invoicing and Payment
8. Retention of title on delivery
9. Right of retention for services
10. Force majeure
11. Suspension/Termination
12. Conformity and warranty
13. Liability
14. Applicable law and competent court
15. Location and change of conditions
16. Deviating provisions only in the event of an agreement with the consumer
17. Deviation from these conditions
1. Definition of terms
1.1. In these general terms and conditions the following terms have the following meanings:
a. Supplier: Elva BV, which applies these terms and conditions, being the user of these general terms and conditions, and its representative(s), authorized representative(s) and legal successor(s).
b. Delivery: the entirety of actions aimed at transferring a good from the assets of a supplier to the assets of a customer in accordance with the agreements made in this regard.
c. Customer: the natural person or legal entity who has concluded an agreement with the supplier, responds to an offer from the supplier or makes use of the supplier's services without an offer or agreement.
d. Consumer: the natural person not acting in the exercise of a profession or business.
2. General
2.1. These general terms and conditions apply to all offers, quotations and agreements between the supplier and a customer to which the supplier has declared these terms and conditions applicable, both with regard to the delivery of goods and the performance of work and the provision of services insofar as these conditions have not been deviated from explicitly and in writing by the parties.
2.2. These general terms and conditions also apply to any further or follow-up agreements between the parties.
2.3. The applicability of any other general terms and conditions of the customer is expressly excluded.
2.4. If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or destroyed the other provisions in these general terms and conditions will remain fully applicable. Instead of the invalid or nullified provisions an appropriate arrangement will apply which approaches the intention of the parties as closely as possible.
3. Offer and acceptance
3.1. All quotations and offers are made without obligation by the supplier unless stated otherwise in the quotation or offer. Even after timely and full acceptance of the quotation it can still be revoked by the supplier for ten (10) working days after receipt of the acceptance.
3.2. In the event of a distance purchase a cooling-off period of 7 working days applies in principle for the consumer unless stipulated otherwise by law.
3.3. All price lists, brochures and other information provided with an offer are described as accurately as possible and can therefore not be seen as any guarantee. These are only binding for the supplier if the supplier has explicitly confirmed this in writing.
3.4. Quotations or offers relate exclusively to the quantities stated in the quotation or offer and do not automatically apply to future orders.
3.5. For activities for which, due to their nature and scope, no quotations or order confirmation is sent the invoice will also be regarded as an order confirmation, which is also deemed to represent the agreement correctly and completely. The records of the supplier is decisive in this respect.
3.6. The agreement takes effect on the day that the parties have committed themselves to this in writing or by email.
4. Delivery periods, implementation and amendment of the agreement
4.1. If a term has been agreed or specified for the completion of certain activities or for the delivery of certain services or goods exceeding that term for whatever reason does not entitle the customer to compensation. Exceeding that term only gives the customer the right to suspend or dissolve the agreement if the customer has notified the supplier in writing that the time has been exceeded whereby the supplier has been offered a reasonable period to still execute the agreement and the supplier the delivery period by more than 15%. unless there is force majeure in accordance with Article 10. If a delivery period of 30 days or less is involved, the exceeding may take 15 days before the supplier is in default and the previous sentence applies accordingly.
4.2. Delivery is ex works of the supplier unless otherwise agreed. From the moment of delivery the risk of the goods is transferred to the customer.
4.3. The customer is obliged to check the delivered goods immediately upon delivery for any shortages or damage, or to carry out this check after notification from the supplier that the goods are available to the customer.
4.4. If the customer refuses to accept the goods at the time that they are made available to him the supplier has the right to store the goods at the expense and risk of the customer.
4.5. If goods are not purchased by the customer after delivery, the supplier is entitled to (private) sale of these goods after a period of four (4) weeks. Any less revenue and costs will be borne by the customer, without prejudice to all other rights of the supplier.
4.6. Any shortages or damage to the delivered goods which are present on delivery must be stated by the customer on the delivery note, the invoice and / or the transport documents, but must in any case be reported to the supplier in writing within seven (7) calendar days, in the absence of any of which the customer is deemed to have approved what has been delivered. If so, complaints in this regard will no longer be handled.
4.7. The supplier is entitled to have certain activities performed by third parties.
4.8. Supplier is entitled to execute the agreement in different phases which he can invoice separately. The customer is then obliged to pay in accordance with the provisions of article 7 of these conditions. The supplier has the right to suspend execution of the following phases until the customer has agreed in writing to the results of the previous phase.
4.9. Should it become apparent during the execution of the agreement that an amendment or addition to the agreement is necessary to be able to properly execute the agreement the parties will proceed to adapt the agreement whereby the original agreements may change. The customer agrees to any adjustment that is necessary for the proper performance of the agreement, including changes in prices and terms. Insofar as and in the event that the customer is a consumer the adjustment may not conflict with the statutory consumer rights.
5. Packaging and shipping
5.1. If the supplier transports, dispatches and / or packs goods the method of transport, dispatch, packaging, etc. will be at the expense and risk of the supplier, unless otherwise agreed. Any specific wishes of the customer regarding the transport / dispatch will only be carried out if the customer has stated in writing that he will bear the additional costs thereof.
5.2. If the place of delivery has been agreed otherwise than described in art. 4.2 the transport or dispatch between the supplier's company and the place of delivery takes place at the expense and risk of the supplier.
5.3. The goods will be sent by the supplier to the agreed place or places in the manner as determined in the order or agreed afterwards.
6. Prices
6.1. Unless explicitly agreed otherwise the prices are:
- exclusive of VAT, other taxes, levies and duties;
- exclusive of the costs of transport and insurance;
- stated in Euros.
6.2. Unless stated otherwise all quotations are subject to price changes. In the event that an increase in the price arises from a power or obligation under law or regulations the supplier is entitled to pass on these higher costs to the customer without the customer being entitled to terminate the agreement for that reason.
6.3. Unless explicitly agreed otherwise the prices for the provision of services or the performance of work are based on the performance of the agreement within the normal working hours applicable at the supplier on normal working days. If, through no fault of the supplier, work has to be carried out outside the normal working hours or normal working days applicable to the supplier the supplier is entitled to charge the additional costs associated with this to the customer unless the customer does not adhere to the original delivery date. In the latter case a new delivery period will be agreed and the exceeding period of 15% will start again in accordance with article 4.1.
6.4. Costs incurred by the supplier and which are necessary for the proper execution of the agreement will be charged to the customer.
7. Invoicing and Payment
7.1. Payment is made in the manner indicated by the supplier.
7.2. Unless otherwise agreed, payment without set-off, settlement and / or deduction of any costs by the customer must be made within fourteen (14) calendar days after the date of the invoice. The Supplier has the right to invoice periodically.
7.3. In the event of more than one customer, all customers are jointly and severally liable towards the supplier. Even if two or more (legal) persons succeed the buyer in debt, these (legal) persons are jointly and severally liable towards the supplier.
7.4. An extension of an agreed term, caused by circumstances attributable to the customer, or objections to the amount of an invoice, will not lead to a suspension of the customer's payment obligation.
7.5. In case of late payment the customer is in default by operation of law. If the customer remains in default despite a reminder, the customer will owe the supplier an interest equal to the statutory interest plus 3% on the amount due from the exceeding of the term determined in accordance with article 7.2 until the day of payment of the full amount due. The supplier also reserves the right to immediately suspend or terminate the execution of the agreement in that case without prejudice to its other rights.
7.6. Costs of measures taken by the supplier in or out of court in connection with the failure of the customer in the fulfilment of obligations towards the supplier will be entirely at the expense of the customer, without any right to discount or set-off, and the customer will owe the statutory interest on this. The extrajudicial costs are calculated on the basis of what is customary at that time in Dutch collection practice, but will at least amount to the actual collection costs that were reasonably necessary.
7.7. If the customer is in default, the supplier is entitled to set off the claims against the customer with what he owes the customer provided that the legal requirements for compensation are met.
8. Retention of title on delivery
8.1. As long as the customer has not paid the full invoice with any additional costs or has not provided security for this the supplier retains ownership of the goods that the supplier has delivered to the customer. In that case ownership will not pass to the customer until the customer has fulfilled all his obligations under or in connection with the agreement between the supplier and the customer. The retention of title also applies to claims that the supplier may acquire against the customer due to the customer's failure to fulfil one or more of its obligations towards the supplier. If timely payment by the customer of any debt from or in connection with the aforementioned agreement or timely adequate security for the fulfilment of the debt is not made, the supplier is entitled to take back the goods still belonging to him on its own initiative and the supplier is not any damage.
8.2. The customer is obliged to keep the goods delivered under retention of title with due care and as the recognizable property of the supplier. The goods may never be resold, used as a means of payment, pledged or encumbered in any other way. If third parties seize the goods or wish to establish or assert rights thereon, the customer must immediately inform the supplier.
8.3. The customer is obliged to insure the goods against fire, explosion and water damage as well as against theft, for the duration of the retained ownership, and to make the policies of these insurance policies available to the supplier for inspection upon first demand. As soon as the supplier indicates that it wishes to do so all claims of the customer against the insurers of the goods under the aforementioned insurance policies will be pledged by the customer to the supplier in the manner as indicated in art. 3: 239 of the Dutch civil code as additional security for the claims of the supplier against the customer.
9. Right of retention for services
9.1. As long as the customer has not paid the full invoice with any additional costs or has not provided security for this the supplier reserves the right to retain the goods of the customer that the supplier has in his possession for the performance of the agreement unless the customer is disproportionately disadvantaged as a result.
9.2. If payment is not made after the customer has been granted a total period of at least six months in one or more reminders to pay the invoice, with any additional costs and after the debt collector has issued a writ with a payment term of at least two weeks, the supplier is entitled to sell the goods of the customer that he has in his possession for the performance of the agreement to which the customer is obliged to cooperate. If the proceeds from the sale exceed what the customer owes the supplier, the customer is entitled to the difference between the two amounts.
10. Force majeure
10.1. The supplier is not obliged to fulfil any obligation if it cannot, no longer or cannot timely implement the agreement if this is a result of circumstances, whether or not foreseeable, that are beyond the control of the supplier. Circumstances beyond the control of the supplier include in any case: war or a similar situation, mobilization, riots, strike, excessive absenteeism of the supplier's personnel, business occupation, blockade, boycott, illness, non-culpable fire or failure of the supply of electricity, gas or water, late performance by suppliers or auxiliary persons, government measures, etc.
10.2. When a situation as referred to in the previous paragraph occurs the supplier will report this to the customer. The parties will consult on a possible amendment to the agreement. If the parties do not reach an agreement and implementation of the agreement remains impossible, either party can dissolve the agreement. It is a matter of permanent impossibility of performance if performance of the agreement for more than sixty (60) more or less consecutive days has actually or legally not been possible or when it is clearly foreseeable that the performance of the agreement during the said period is not actually or legally will be possible.
10.3. If at the time of the commencement of force majeure the supplier has already partially fulfilled his obligations under the agreement and/or has already incurred costs for the implementation of the agreement, the supplier is entitled to invoice these costs separately. The customer is obliged to pay this invoice as if it were a separate agreement.
11. Suspension/Termination
11.1. In addition to the other rights accruing to the supplier, the supplier is entitled, without further notice of default and judicial intervention and without being obliged to pay any compensation to the customer, to suspend the delivery of the goods or services and/or dissolve the agreement with immediate effect:
a. the customer does not, not timely or not fully comply with one or more of its obligations arising from the agreement;
b. the customer is unable to meet his due and payable debts or leaves his due and payable debts unpaid, becomes insolvent if the customer's bankruptcy is filed (whether or not via his own declaration), if (provisional) suspension of payment is requested, if with regard to an application is submitted for the customer seeking the application of the Dutch Natural Persons Debt Restructuring Act, in the event of the customer's death or if the customer ceases its business and/or the customer is seized that will not be lifted within 30 days of the date of the seizure or in the event force majeure or comparable circumstances;
c. after concluding the agreement, the supplier becomes aware of circumstances that give good reason to fear that the customer will not fulfil his obligations;
d. circumstances arise that are of such a nature that the unaltered maintenance of the agreement cannot reasonably be expected of the supplier.
11.2. If one or more of the in Article 10.1. The grounds for dissolution stated under b are present and/or if the agreement is dissolved, all debts of the customer to the supplier become immediately due and payable in full.
12. Conformity and warranty
12.1. The goods or services to be delivered by the supplier meet the usual requirements and standards that can reasonably be imposed on them at the time of delivery and for which they are intended for normal use.
12.2. If the delivered goods do not comply with the agreement, the customer will give the supplier the opportunity to repair the defect itself without prejudice to the supplier's right of choice to have the defect repaired by another party. If the customer has the defect repaired by another party, the supplier will only reimburse the costs it would have incurred if it had repaired the defect itself and only if non-conformity can be proven.
12.3. If during the warranty period defects arise in the goods delivered by the supplier or the services provided are not properly performed, the supplier is obliged to repair the defect. In consultation with the supplier the customer can have the defect repaired by another party, in which case the supplier will only reimburse the costs that he would have incurred if he had repaired the defect himself, unless otherwise agreed between the customer and the supplier. made.
12.4. The warranty period is:
a. With regard to new vessels and/or parts; 12 months after delivery;
b. With regard to vessels that are not new, which have been purchased for an amount of € 4,500 or more; 6 months after delivery;
c. With regard to the provision of services, with the exception of emergency repairs; 3 months after delivery.
12.5. The supplier is not obliged to repair a defect if after delivery of an item or service by parties other than the supplier changes have been made to the item, if the item has been used improperly or improperly, if the defect is the result of normal wear and tear or if the customer not immediately, but at the latest within (14) calendar days after the discovery of the defect informs the supplier thereof in writing fully and clearly described. The supplier is also not obliged to repair a defect in the design of the vessel if that design has not been supplied by itself or is the result of the use of goods prescribed or supplied by the customer or third parties. For goods delivered by third parties that have been processed by the supplier the guarantee that the relevant third party gives on them applies if the relevant guarantee certificates have been provided to the customer.
12.6. The supplier is not obliged to repair a defect if the agreement relates to the provision of a service and the customer cannot demonstrate that the defect was caused by a defective performance of the agreed work by the supplier.
12.7. Complaints about non-conformity or other matters do not release the customer from its payment obligations towards the supplier. If it is established that a complaint from the customer is unfounded, the costs arising on the part of the supplier as a result will be borne by the customer.
12.8. Where this article deviates from the legal rules for consumers the legal rules apply to agreements where the customer is a consumer unless those legal rules may be deviated from.
13. Liability
13.1. The supplier is not liable for damage of the customer on any account whatsoever, including all direct and indirect damage, such as consequential damage or business damage, including fire, theft or otherwise, unless this damage is caused by intent or deliberate recklessness on the part of the supplier. In the event that any liability should rest on the supplier, the supplier will only compensate damage for which the buyer can demonstrate that it is a direct result of the event for which the supplier is legally liable, if and insofar as the insurance agreement concluded by the supplier covers this damage.
13.2. Unless there is intent or wilful recklessness on the part of the supplier, the supplier is never liable for direct and/or indirect damage:
arisen because the supplier has assumed incorrect and/or incomplete information provided by or on behalf of the customer;
b. that is the result of errors or omissions of third parties who, with the consent of the customer, have been charged by the supplier with the delivery of materials or the provision of services and/or work;
c. that occurs as a result of goods delivered by third parties, unless the supplier can recover the damage from the relevant third parties;
d. that is the result of a defective design that has not been delivered by the supplier or that applies to materials prescribed or supplied by the customer;
e. that arose as a result of injudicious or improper use of the incorrect storage supplied by the supplier;
f. if the customer and/or third parties has/have made changes to the goods delivered by the supplier, including the performance of repairs by the customer and/or third parties, or if the customer does not follow/has not followed the advice of the supplier;
g. that arose due to circumstances beyond the control of the supplier as described in article 10.
13.3. In the case of goods that have been placed in custody at the supplier, the supplier is never liable for direct and/or indirect damage to the good (such as fire, storm, destruction, theft, etc.) An exception is the situation for which the customer demonstrates that it is a direct result of the event for which the supplier is legally liable, if and insofar as the insurance agreement concluded by the supplier covers this damage.
13.4. The customer is liable for all damage on the part of the supplier that arises directly or indirectly because:
a.the customer does not, not timely or not fully comply with one or more of its obligations arising from the agreement; and/or
b. the agreement is dissolved due to circumstances attributable to the customer; and/or
c. the customer cancels an order in whole or in part.
13.5. In the event of cancellation by the customer, all costs already incurred for the implementation of the agreement will be charged to the customer.
13.6. The limitation period for all claims and defences against the supplier and the third parties involved by the supplier in the performance of the agreement is one year, in deviation from the statutory limitation period.
14. Applicable law and competent court
14.1. Dutch law applies to the agreement.
14.2. In the event of disputes the judge in whose jurisdiction the supplier has its principal place of business takes exclusive knowledge. Nevertheless, the supplier has the right to submit the dispute to the court that is authorized to do so by law.
15. Location and change of conditions
15.1. These conditions have been filed with the Chamber of Commerce on… under number…
15.2. The most recently filed version that applied at the time of the conclusion of the agreement between the parties is always applicable.
15.3. When these terms and conditions have been translated into other languages, in the event of a dispute about the interpretation of these terms and conditions, the Dutch text will prevail.
16. Deviating provisions only in the event of an agreement with the consumer If the customer is a consumer, the mandatory provisions of Title 1 of Book 7 of the Dutch Civil Code take precedence over the provisions in these general terms and conditions insofar as they deviate from the mandatory provisions.
17. Deviation from these conditions These general terms and conditions can only be deviated from in writing.
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