GENERAL TERMS AND CONDITIONS OF SALES
VELTKAMP ESPAÑA S.L.
1. In these general terms and conditions, the following terms shall have the following meanings:
- commissionee: Veltkamp España S.L.
- principal: the natural person or legal entity that has entered into an obligation in the context of the purchase of products, the commissioning of services and/or the contracting of work in respect of the commissionee, or has entered into negotiations with the commissionee for that purpose
- products: all goods that are the object of an agreement as well as results of services by commissionee, such as the contracting of work, fitting, installation, advice, etcetera.
1. These terms and conditions apply to all offers of commissionee, to all commissions granted to commissionee and to all agreements concluded with commissionee. This furthermore includes any subsequent assignment or subsequent contract.
2. If and in so far as any term or expression used in any agreement, or in these terms and conditions, requires further explanation, then the explanation given in Incoterms, latest-published edition, shall prevail.
3. Each reference to principal’s own terms and condition at any stage of the conclusion of the agreement is expressly rejected by commissionee.
4. In case of any contradiction with written purchase, tender or other conditions of the principal, our terms and conditions shall prevail, except in so far as we have expressly accepted conditions of the principal in writing.
5. The contents of these terms and conditions can only be deviated from in writing, signed by authorised signatories according to the listing in the commercial register of the Chamber of Commerce.
Formation of agreements
1. If any performance is delivered by commissionee at the request of the principal prior to the conclusion of an agreement, then the commissionee is entitled to request payment in accordance with the current rates, unless agreed otherwise in writing.
1. Additional and deviating provisions in the assignment in respect of the offer or the quotation shall at all times only be binding upon the commissionee if and in so far as these provision have been expressly accepted by the principal.
1. All statements provided by the commissionee of numbers, sizes, measurements, weights and/or other designations of the products have been made with due care, but the commissionee cannot guarantee that there will be no deviations. Any samples, drawings or models and the like shown or provided shall at all times only be indications of the specific products.
1. Subject to the contents of article 7, any advice, calculations, notifications and statements provided by commissionee with regard to capacities, results and/or expected performance of products or activities to be delivered by commissionee shall only be binding if and in so far as such information is included in the written order confirmation by commissionee, or are part of a separate written agreement concluded between commissionee and principal.
1. If after the date of conclusion of the agreement in conformity with article 4, the prices of materials, auxiliary materials, parts, raw materials, wages, salaries, social security charges and government levies increase, prior to full completion of the assignment, the commissionee is entitled to increase the prices accordingly.
2. If an agreement has not been (fully) fulfilled on the agreed date due to circumstances that should not be for the account and/or risk of the commissionee, then the commissionee is entitled to pass on any price and/or tariff changes to the principal, for the remaining part of the assignment.
1. The commissionee is entitled to separately invoice any contract extras, even when such contract extras have not been commissioned in writing and/or the price has not been agreed in advance.
The calculation of the price for contract extras is subject to the contents of the previous articles in this chapter.
1. If the fitting and/or installation of the delivered products has been expressly agreed in our order confirmation, and therefore is part of the agreement concluded with the principal, the price described in the articles of this chapter is charged, including fitting and/or the operational delivery of the products at the location specified in the agreement.
1. The costs and financial consequences separately provided by the chapter of the obligations of the principal described there are not included in the price, except in so far as expressly provided by our order confirmation.
1. Unless expressly agreed otherwise in writing, products will – if necessary and at the sole discretion of the commissionee – be provided with packaging in which the products are commonly trade by the commissionee, subject to the contents of article 8.
2. Unless agreed otherwise in writing with the principal, the commissionee shall not recover the packaging.
Retention of title on, and intellectual property of,records, auxiliary materials and advice
1. Any cost budgets, plans, catalogues, images, drawings, measurements and weight indications drawn up, constructed and/or provided by the commissionee or other records belonging to offers and/or deliveries, as well as auxiliary materials such as models, moulds, stamps, matrixes and tools shall at all times remain the property of commissionee – even if the manufacturing costs have been invoiced to and paid by the principal, and must be returned upon first request.
2. Subject to written permission of commissionee, the principal guarantees that the records, auxiliary materials and information provided by commissionee shall not be copied and/or imitated, or be given to third parties, either or not for re-use, for inspection or submitted to the same.
3. The commissionee is entitled to require the cooperation of the principal in signing a confidentiality statement submitted by commissionee.
Fitting and/or installation
1. The principal shall ensure the timely and correct provision of the necessary facilities, provisions and conditions for the fitting and installation activities to be carried out by commissionee. These provisions and any other activities to be carried out in this context shall at all times be for the account and risk of the principal.
2. The principal shall ensure, among other things, for its own account and risk that fitters of the commissionee are allowed to carry out the activities. With due regard of the necessary safety regulations and other precautions, the principal shall provide the necessary auxiliary materials and assistance, either personal or through providing employees. The principal shall ensure that there is sufficient accommodation and other personal facilities available for the employees of commissionee.
1. Travelling costs are invoiced separately to the principal. The commissionee reserves its right, in deviation of article 11, to invoice additional wage costs separately, if in the opinion of the commissionee, in deviation of the assumption provided by article 4 paragraph 1, there is a necessity to carry out the activities outside the regular working hours and/or under special circumstances.
1. The contents in the following articles regarding the delivery time shall also apply to the agreed fitting and/or installation time. What is not deemed part of the agreed fitting and/or installation is the training period of the machines, installations and the like fitted by the commissionee.
1. Subject to the contents of the articles in this chapter, the statements with regard to price, delivery, risk and guarantee shall be subject to what is provided by the specific articles of these terms and conditions.
1. The delivery time, which also includes the time for activities to be carried out by the commissionee, shall commence on the day mentioned in the written order acceptance.
2. If the execution of the assignment requires certain data, drawings, etc, or certain formalities, the delivery time shall start at a later time, i.e. the moment that all data, drawings etc are in the possession of the commissionee, or once the required formalities have been fulfilled.
3. If the commissionee requires a first payment with the order, the delivery time shall commence at a later time than mentioned in the written order acceptance or the receipt of the aforementioned records, i.e. the moment the payment is received.
1. Delivery times given by the commissionee shall not constitute absolute deadlines and are always without engagement. The mere expiry of such dates shall not constitute default. The commissionee will do anything reasonably possible in order to observe the given delivery times as accurately as possible. With the exception of intent or serious error, the exceeding of delivery shall not entitle the principal to claim damages, to refuse the product or to wholly or partly dissolve the agreement.
1. Force majeure is taken to mean any circumstance independent of the will of the principal, which wholly or partly prevents the fulfilment by commissionee, or as a consequence of which fulfilment cannot reasonably be expected of the commissionee, regardless if that circumstances was foreseeable at the time of concluding the agreement. Commissionee will inform the principal of a situation of force majeure as soon as possible.
2. All situations of force majeure, such as war, the threat of war, civil war, riots, keeping hostages, acts of war, fire, water damage and flooding, strikes, factory sit-ins, lockout, lack of workers or raw materials, defects of machines and/or plants, interruptions in the delivery of energy, all both on the premises of the commissionee and on the premises of third parties from whom commissionee must wholly or partly purchase the required materials or raw materials, as well as in storage or during transport, either or not under own management, and furthermore all other causes, beyond the blame or fault of the commissionee, shall discharge commissionee from any obligation to fulfil his obligations, including the delivery time, as long as the specified impediment continues to exist. Any claims for damages for whole or partial non-fulfilment shall also be excluded in the cases mentioned above.
3. In case of force majeure, commissionee has the right to amend the agreement in consultation with the principal, in such a way that fulfilment of the assignment remains possible for commissionee.
4. If the situation of force majeure has lasted for six months, or if it is certain that it will last longer than six months, the commissionee has the right to partly or wholly dissolve the agreement in writing, subject to the obligation of the principal to compensate to commissionee any products and/or services already delivered. In such case, the principal shall not be entitled to any damages.
1. The place of delivery is the factory of the commissionee, even if delivery carriage paid and/or transportation has been agreed upon.
2. After the specific products have left the factory or when the principal has been informed in writing that the products are ready for shipment, they are construed as delivered, without prejudice to the contents in these conditions with regard to retention of title and regardless of the possible obligation of commissionee to fulfil obligations regarding fitting and/or installation.
3. In case delivery is made in parts, the separate parts in themselves are deemed delivered.
1. The risk transfers to the principal at the time of delivery within the meaning of article 23. Also in case of damage to products, caused by destruction of the packaging, the contents of the previous sentence shall fully apply.
1. If the product are not taken delivery of by the principal, or not in a timely manner or not properly, and if the principal fails to do so within 10 days after sending of a written demand to this effect, the principal will be in default. In such case, the commissionee is entitled to store the products for the account and risk of the principal, or to sell these to a third party. Principal will remain due the purchase sum plus interest and all related costs, however, minus the net proceeds of any sale to a third party.
1. Unless agreed otherwise in writing with the principal, the shipment and/or transporting of products, if handled by the commissionee, shall be for the account and risk of the principal and the products are not insured against transport risk by the commissionee. Even if the commissionee has declared to the freight forwarder that all damage during transport is for the account and risk of the commissionee, the transport risk shall nonetheless be for the principal and the commissionee shall not be obliged to take steps to recover damages. If desired, the commissionee shall assign its rights in respect of the freight forwarder to the principal.
1. Unless expressly agreed upon otherwise in writing, products, which have been given to commissionee for processing, repair or inspection, shall rest with the commissionee for the risk of principal. Commissionee undertakes to maintain and handle the products given by principal with all due care.
Retention of title
1. The title to the products shall pass to principal only when he has fulfilled all obligations arising from the agreement or from any other agreement associated thereto. Apart from the payment of the purchase price, obligations shall include the activities carried out in or yet to be carried out in relation to the products, and any surcharges, interests, taxes and costs, and the like pursuant to the agreement.
2. Principal is not entitled to sell, lend, pledge or use as mortgage collateral these products before that date, or transfer these products in any other way to third parties.
3. Principal shall enable commissionee forthwith to take back the products supplied, without any notice of default or judicial intervention.
4. Without prejudice to other rights, commissionee, if this situation arises, shall be authorized irrevocably by principal, if principal fails to fulfil his obligations, in due time or in a proper manner, to disassemble and take back without any notice of default or judicial intervention the products attached to the movable and immovable property supplied by commissionee upon first demand.
1. Principal is obliged to notify commissionee forthwith in writing when third parties (possibly) claim rights on the products subject to retention of title.
2. In the event that principal fails to fulfil this obligation, he shall owe a penalty of 15% of the unpaid part of the claims, to which the retention of title pertains, without prejudice to the other rights accruing to the commissionee in respect of those claims.
1. Each payment received by commissionee from principal shall first of all serve to settle those claims that commissionee has on principal in respect of which no retention of title applies (any longer) within the meaning of article 28.
Credit penalty mark-up
1. The invoiced amount may be increased by commissionee by a credit penalty mark-up stated separately on the invoice. In case of payment within 30 days after the date of invoice the mark-up in question need not be paid.
1. Unless agreed upon otherwise in writing, payment of the purchase price and/or the agreed price in respect of activities (yet to be) carried out by commissionee is due in cash upon delivery at the option of commissionee, or within 30 days upon delivery in accordance with the provisions in article 23.
2. All payments will be made without any deduction or settlement.
3. If principal thinks in respect of the delivery or execution of the commission that he has any claims, in whatever form, this shall not release the principal from the obligation to pay in the agreed manner and principal shall not be entitled to suspend the payment obligation.
4. Transaction costs shall be for the account of principal.
1. If payment in instalments has been agreed upon, this shall take place – unless expressly greed upon otherwise between parties in writing - as follows:
- 50% plus the total amount of VAT due in respect of the commission;
- 50% when the products are prepared for delivery,
or upon completing the activities carried out by commissionee, or upon approval by principal of the first product samples supplied by commissionee.
1. Payment of additional work shall be made as soon as this additional work has been charged by commissionee to principal.
1. Commissionee is entitled, if there is reasonable doubt at any time regarding the creditworthiness of principal, to demand prior to performance that full or partial payment of the purchase price is made in advance or that principal provides proper security, such as by means of a bank guarantee or undisclosed pledging of products supplied by commissionee.
2. In such a case commissionee shall also be entitled to cash only on delivery.
1. In the event that it has been agreed upon with principal that payment will take place via a bank institution or when security is provided by means of documentary credit or bank guarantees, principal vouches that such is always effected by means of a first class bank. When commissionee can reasonably doubt the qualification mentioned, commissionee shall be entitled to reject the suggested bank and appoint another bank.
1. Principal shall be deemed to be in default of payment if no payment has been received within 10 days upon a demand letter.
2. As soon as the principal is in default towards the commissionee, all claims of commissionee on the principal shall become immediately due and payable, without prejudice to other rights accruing to commissionee.
3. As from the date that the default takes effect principal shall owe interest equivalent to the then prevailing interest in the Netherlands, plus a surcharge of 2%. Each time after the end of a year the amount on which the interest is calculated shall be increased by the interest due on that year.
4. Principal is obliged to reimburse all extrajudicial and judicial costs incurred by commissionee in order to obtain payment, which costs will be no less than 15% of the outstanding amount and shall at all times amount to no less than € 250,- exclusive of turnover tax.
1. Commissionee is entitled to keep at his disposal any matters of principal that were put at his disposal in connection with the commission granted and to suspend the return thereof until principal has fulfilled all his payment obligations.
1. If principal fails no fulfil any obligation arising from the agreement concluded with commissionee in a timely or proper manner (if at all), principal shall be in default and commissionee shall be entitled by mere written notification:
- to suspend the execution of the agreement and any agreements related thereto until payment has been sufficiently secured;
- to dissolve the agreement and any agreements directly related thereto in full or in part;
without prejudice to other rights accruing to commissionee and without commissionee being under any obligation to pay damages.
1. In case of bankruptcy, suspension of payment, cessation of activities or liquidation of the company of principal, all agreements with principal shall be dissolved by operation of law, unless commissionee notifies principal within a reasonable term that he demands fulfilment of (part of) the relevant agreement(s), in which case commissionee shall be entitled without notice of default:
- to suspend the execution of the relevant agreements until payment has been sufficiently secured;
- to suspend all possible payment obligations towards principal, by any reason whatsoever;
without prejudice to the other rights accruing to commissionee without commissionee being under any obligation to pay damages.
2. If a situation arises as stated in the previous paragraph of this article, all claims of commissionee on principal shall become due and payable forthwith and in full and commissionee shall be entitled to take back the products in question. In that case commissionee shall be entitled to access the areas and buildings of principal in order to take possession of the products. Principal is obliged to take the necessary measures in order to enable commissionee to effectuate his rights.
1. If principal wishes to cancel a commission provided to commissionee and commissionee has agreed thereto in writing, principal is obliged – save for any written engagement to the contrary – to take on from commissionee any materials and raw materials either or not purchased in instalments, either or not processed at the price paid by commissionee, including wages, and hold commissionee harmless by reason of loss of profit against payment of 15% of the agreed price, notwithstanding any other rights accruing to commissionee.
2. In case that commissionee has entered into a foreign exchange contract with a bank or a third party in connection with the commission, principal shall also be obliged to reimburse to commissionee the exchange losses arising from the cancellation.
1. Principal is obliged to indemnify commissionee at all times against any claims of third parties as a result of the cancellation of the commission.
Inspection and recovery
1. Principal is obliged to carefully inspect the products immediately upon arrival at the place of destination, or after completion of the activities carried out by commissionee, or – if this is sooner – upon receipt by principal himself or a third party acting by his instructions, or have same inspected carefully.
1. Any complaints about faults in the products, which are due to material or fabrication flaws, and differences in quantity, weight, composition, quality between the products supplied and the description stated on the order confirmation and/or invoices for that purpose, shall be notified to commissionee in writing within fourteen days upon arrival of the products and/or completion, subject to the provisions in paragraph 3 of this article.
2. If a test or inspection has taken place in the factory of commissionee, complaints must be lodged during this test or inspection and recorded in writing.
3. Faults that cannot be reasonably established within the terms specified above must be reported to commissionee in writing immediately after they were established but at any rate within the prevailing guarantee period.
4. Recovery in respect of invoices may only take place within fourteen days upon receipt of the invoices, whereby the date of receipt shall be fixed at one day after the date of the invoice in question.5. Minor deviations with the usual tolerances cannot constitute a ground for recovery, claiming damages or a request to cancel the commission to principal.
6. If recovery does not take place within the terms stated in this article, principal shall lose any claim in respect of those defects.
1. After a defect has been found principal is obliged to immediately cease the use, processing or installation of the products in question and principal is obliged to give all cooperation desired by commissionee for examination of the complaint, for example by enabling commissionee to initiate an investigation into the circumstances of processing, installation and/or use on the spot.
2. Principal is not entitled to lodge complaints with regard to products, in respect of which no inspection of the complaint can be carried out by commissionee. Principal is not at liberty to return the products before commissionee has agreed thereto in writing.
1. Commissionee shall provide principal with a guarantee for material and fabrication errors during six months after delivery within the meaning of article 23. 2. The guarantee implies that commissionee will repair for his own account the errors in the assembly or take back in full or in part the goods supplied and replace them by a new supply, such at the exclusive judgment of commissionee. If (parts of) the products supplied are replaced in order to fulfil the guarantee obligation, the replaced (parts of) products shall become the property of commissionee.
3. All costs extending beyond the obligation described above shall be for the account of principal, such as costs of transportation, travelling costs and costs of assembly and disassembly. In the event that we carry out repair activities on the products supplied in order to fulfil our guarantee obligations, the products in question shall fully remain for the risk of principal.
1. The guarantee shall not apply:
- if the errors are the result of improper use or have causes other than defectiveness of material or fabrication;
- if commissionee supplies material used in accordance with the commission or goods used;
- if the cause of the errors cannot be clearly demonstrated;
- If not all instructions provided for the use of the products and other specific guarantee regulations have not been observed strictly and fully.
2. The guarantee shall lapse if: - it concerns errors that are wholly or partly due to government regulations regarding the quality or nature of materials used or regarding fabrication;
- principal makes changes and/or performs repairs to the products supplied at his own initiative during the guarantee period or has these changes made or repairs carried out;
- principal fails to fulfil any obligation arising from this agreement or any other agreement related thereto in a timely or proper manner (if at all), such as the obligations stated in these conditions with respect to inspection and recovery.
1. If products are provided for processing, repair, and the like, only the properness of the execution of processing ordered shall be guaranteed.
2. In respect of parts that were not fabricated by commissionee himself, no more guarantee shall be provided than is provided to commissionee by suppliers of commissionee.
3. If commissionee is obliged to assemble and/or install any products, the guarantee obligation shall apply only to the extent that there is improper assembly and/or installation. In such a case the guarantee provided shall take effect on the day that the assembly and/or installation has been completed according to commissionee, on the condition that in the case the guarantee period shall end at any rate nine months after the delivery within the meaning of article 23.
1. Unless expressly agreed otherwise in writing, commissionee shall only be obliged to fulfil the guarantee obligation within Spain.
1. The liability of commissionee is restricted to fulfilling the guarantee obligation mentioned in the previous article. 2. With the exception of intent or gross negligence and subject to the guarantee provisions, commissionee shall never be liable for any damage of principal, including consequential loss, immaterial damage, loss of profits or environmental damage, or damage as a result of liability towards third parties.
3. It is the responsibility of principal to properly insure the goods referred to in article 15 against the usual risks including at any rate theft, fire and breakage, and any additional costs on account of urgent remedy and/or replacement.
4. If and insofar as commissionee, despite the provisions in paragraphs 1 and 2 of this article, is nonetheless held liable by the competent court in any situation, our liability towards principal by any reason whatsoever per event (whereby an interrelated series of events counts as one event) shall in all cases be limited to the amount of the contractual sum in question, exclusive of turnover tax.
1. Principal is obliged to indemnify and hold harmless the commissionee against any costs, losses and interests that may be incurred by principal as a direct result of claims of third parties on commissionee in relation to incidents, actions or omissions in or in the context of executing the commission, for which commissionee shall not be liable towards principal pursuant to these conditions.
1. Commissionee shall not be liable for any violations of patents, licenses or other rights of third parties by using data that were provided to commissionee by or on behalf of principal for the execution of the commission.
2. If commissionee in the written agreement concluded with principal or in the order confirmation refers to technical, safety, quality and/or other regulations pertaining to the products, principal shall be deemed to know these regulations, unless commissionee receives written notification of the contrary without delay. In that case principal be provided with additional information about the regulations concerned. Principal is obliged at all times to inform its buyers about the aforesaid regulations in writing.
Applicable law and competent court
1. These general conditions are exclusively subject to the law of Spain.
2. These general conditions are applicable to all agreements concluded with the principal except for any general conditions of principal.
3. The substantive law of the Netherlands is applicable to all agreements concluded with principal except for any general conditions of principal. The applicability of the Vienna Sales Convention is excluded, like any other international arrangement whereby exclusion is permitted unless parties have expressly agreed otherwise in writing.
1. Any disputes arising from agreements concluded with commissionee or these general conditions, insofar as the contrary is not prescribed as mandatory by the law, shall be subject to the judgment of the competent court of the place where commissionee has his registered office, unless parties have expressly agreed otherwise in writing.