GENERAL TERMS AND CONDITIONS OF DELIVERY B2B
1 Applicability
1.1 These general terms and conditions ("Conditions") apply to every offer, quotation,
acceptance, order confirmation, agreement and other (legal) acts, whether or not in
electronic form, relating to the sale and/or delivery of products and/or services
between Havé-Digitap B.V., hereinafter referred to as: "User", and its customers, hereinafter referred to as:
"Customer". Deviations from the Terms and Conditions must be expressly agreed in writing.
1.2 The applicability of any purchasing or other general terms and conditions or stipulations of the Customer
are excluded and are hereby expressly rejected.
1.3 Deviations from and/or additions to the Conditions only apply if and insofar as they are agreed in writing
between the User and the Customer and apply exclusively to the
agreement in which the deviating conditions and/or additions have been made.
1.4 If one or more provisions of these Terms and Conditions are or become null and void,
then the remaining provisions of the Terms and Conditions will remain in full force and unimpaired. To
replace the void or annulled provisions, new conditions will be
agreed with the Customer, whereby, if and to the extent possible, the purpose and scope of the original
provision(s) will be taken into account as much as possible.
1.5 All that has already been performed by the User and the Customer before concluding the agreement
is deemed to have been performed under the applicability of the Conditions.
1.6 The Terms and Conditions also apply to other agreements, including subsequent and additional
agreements to which the User and the Customer, or their legal successor(s), are parties.
1.7 The User reserves the right to change and/or supplement the Terms and Conditions at any time.
[Changes and/or additions will be communicated to the Customer in writing or electronically by e-mail
and will enter into force one month after the date of such announcement, unless stated otherwise in the
announcement.]
1.8 The User not invoking the conditions arising from the
Conditions, at any time and for any reason, will not be construed as a waiver
of its rights.
1.9 The Customer may not transfer the agreements and rights and obligations arising from an agreement
or any claims of the Customer against the User to third parties in any way whatsoever,
without the prior written consent of the User. The User will not withhold this consent
on unreasonable grounds.
2 Quotations, offers and conclusion of agreement
2.1 Unless expressly stated otherwise, all quotations and offers from the User, in whatever form
, are made without obligation, regardless of whether a term for acceptance has been set.
2.2 The User cannot be held to its quotations or offers if the Customer can reasonably
understand that the quotations or offers, or a part thereof, contain an apparent error
or contain a typo.
2.3 Agreements are concluded by written acceptance or confirmation of the
order by the User ("Order Confirmation"), or if delivery has taken place
on account of the Customer's order and/or assignment having been carried out. Unless the Customer provides written notice to the contrary prior to actual delivery,
the Order Confirmation is deemed to accurately and completely reflect the assignment
and/or order.
2.4 The User reserves the right to refuse orders and/or assignments, without stating
reasons.
2.5 Information and specifications provided by the User are approximates only. The descriptions,
specifications, drawings, illustrations, explanations and weight and dimension statements provided by
the User in brochures, price lists, information leaflets, presentations,
order confirmations and any other publications are for indicative purposes only and no rights can be derived from these by the Customer, unless expressly agreed otherwise.
2.6 The prices stated in a quotation or offer are exclusive of VAT and other government levies
, the costs of packaging, installation costs and any additional costs to be incurred in connection with the
agreement, including travel and accommodation costs, shipping costs and
administration costs, unless otherwise stated. The aforesaid costs will be payable by the Customer.
All prices apply per unit indicated.
2.7 The User is not bound by any order that deviates (whether or not on minor points) from the
proposal included in the quotation or offer. In that case, the agreement will not be concluded in accordance with this
deviating acceptance, unless indicated otherwise by the User.
2.8 A composite quotation does not oblige the User to perform part of the
assignment for a corresponding part of the stated price.
2.9 To the extent that the Customer has already performed any service prior to receipt of the Order Confirmation,
or makes preparations to do so in the apparent expectation that an agreement will be reached
or apparent assumption that an agreement has been reached, the Customer does so at its own
risk.
3 Delivery times, execution and amendment of agreement
3.1 The terms agreed or stated for the completion of certain work or the delivery of certain items
are for indicative purposes only and are never final deadlines.
3.2 If the User requires data from the Customer for the execution of the agreement, the
execution period will not commence until after the Customer has correctly and completely made this
available to the User.
3.3 The User will only be in default towards the Customer after receipt of notice of default with a
reasonable period to remedy.
3.4 The User is entitled to engage third parties to execute the agreement.
3.5 Delivery is Ex Works in accordance with the most recent version of the Incoterms, unless
expressly agreed otherwise.
3.6 The Customer is obliged to accept the goods at the time they are made available to him.
If the Customer refuses to accept delivery or fails to provide information or instructions that
are necessary for delivery, the User will be entitled to store the items at the expense and risk
of the Customer.
3.7 If the Customer fails to take delivery of the goods at the agreed time and this failure is not due to the User,
the Customer will immediately be in default without notice of default being required. Without prejudice to the
right to compensation for all costs and damage in connection with this failure to take delivery, the User will be
entitled to terminate the agreement without judicial intervention if the Customer (again) fails to take delivery of the goods
on or before the second date of which the Customer has been notified by the User, all this
without prejudice to the User's right to claim additional compensation, in court or otherwise,
in connection with the Customer's default.
3.8 The User is entitled to execute the agreement in different phases and to invoice the thus executed
part separately.
3.9 If the agreement is executed in phases, the User can postpone the execution of those parts belonging
to a subsequent phase until the Customer has approved in writing the results of the preceding
phase.
3.10 Changes or additions to the agreements must be expressly agreed in writing
. If the Customer requests a change and/or addition to an agreement and the parties fail
to reach agreement, the agreement will remain in effect in its original form.
3.11 If during the execution of the agreement it appears that the proper execution thereof
requires the agreement to be changed or supplemented, the parties will
adjust the agreement in a timely manner and in mutual consultation. If the nature, scope or content of the agreement is changed,
whether or not at the request or instruction of the Customer, the competent authorities, etc.,
and the agreement is consequently changed in qualitative and/or quantitative terms, it may also have
consequences for whatever was agreed originally. This may result in the amount agreed on
originally being increased or decreased. The User will provide a quote for this in advance,
as much as possible. Furthermore, an amendment to the agreement may change the originally
specified term of execution. The Customer accepts the possibility
of changes to the agreement, including changes in price and term of execution.
3.12 The User has the right to increase the agreed price, even if a fixed price was
agreed, on the basis of a power or obligation under the law or regulations or if the
increase is caused by an increase in the price of raw materials, wages, etc. or on
other grounds, insofar as these were not reasonably
foreseeable when entering into the agreement and without the Customer being entitled in that case to terminate the agreement for that reason.
4 Suspension, termination and interim cancellation of the agreement
4.1 The User is entitled to suspend the fulfilment of the obligations or to terminate all
agreements concluded with the Customer with immediate effect and without judicial intervention by means of a
written and/or electronic statement to the Customer, without being liable to pay any
compensation to the Customer and without prejudice to the User's right to claim
compensation from the Customer:
4.2
- if the Customer fails to fulfil the obligations under the agreement or fails to fulfil them in full or on time;
- if, after concluding the agreement, the User becomes aware of circumstances that give good
reason to fear that the Customer will not fulfil the obligations;
- if, upon concluding the agreement or in a case as described in Article 6.2
of these Conditions, the Customer has been requested to provide security for the fulfilment of his obligations
under the agreement and this security remains forthcoming or is insufficient;
- if, due to a delay on the part of the Customer, the User can no longer be required to fulfil the
agreement under the originally agreed conditions;
- in the event of liquidation, (application for) suspension of payment or bankruptcy of the Customer,
seizure against the Customer, if and insofar as the seizure has not been lifted within three
months, debt restructuring or other circumstance as a result of which the Customer can no longer freely
dispose of his assets;
- a case occurs as described in Articles 3.7 and 6.7 of these
General Terms and Conditions; and/or
- if circumstances arise which are of such nature that compliance with the agreement is
impossible or if other circumstances arise which are of such nature that the User cannot reasonably be
expected to maintain the agreement
unchanged.
4.3 In the cases referred to in Article 4.2, the Customer will be liable for all
damage or loss suffered and/or to be suffered by the User, including any costs incurred directly and indirectly as a result, while any amounts owed by the
Customer to the User, including any interest and damage, will be
immediately and fully due and payable.
4.4 If there are grounds for termination or dissolution on the part of the Customer, the
Customer is obliged to immediately notify the User thereof.
5 Force Majeure
5.1 The User is not obliged to fulfil any obligation towards the
Customer if it is prevented from doing so as a result of a circumstance that is not attributable to fault and for which it is not responsible under the
law, a legal act or generally accepted views. The
User is therefore not liable for damage or loss resulting from shortcomings that are the result of
circumstances beyond its control (force majeure).
5.2 Force majeure in these general terms and conditions are taken to mean, in addition to the interpretation thereof in
law and case law, all external causes such as a pandemic or
epidemic, foreseen or unforeseen, over which the User has no influence, but which prevent the
User from fulfilling its obligations. This includes strikes in the company
of the User or that of third parties. The User further has the right to invoke force majeure if the
circumstance that prevents (further) fulfilment of the agreement occurs after the User should have fulfilled its
obligation.
5.3 During the period in which the force majeure continues, the User may
suspend the obligations under the agreement. If this period lasts longer than two months, either party is entitled to terminate the
agreement without any obligation to compensate the other.
5.4 If, at the time when force majeure occurs, the User has already partially fulfilled its obligations under the
agreement or will be able to fulfil them, and the part that has been fulfilled or is yet to be
fulfilled has independent value, the User is entitled to
invoice the part that has already been fulfilled or is yet to be fulfilled separately. The Customer is obliged to
pay this invoice as if it were a separate agreement.
6 Payment and collection costs
6.1 Payment must be made within 30 days of the invoice date, in a manner to be
specified by the User and in the currency in which the invoice was issued, unless expressly agreed otherwise. This
payment term is a final deadline. The User is entitled to invoice periodically.
6.2 If there is reasonable reason to do so, the User is further entitled to
demand from the Customer (additional) security or an advance payment, during the execution of the
agreement.
6.3 If and insofar as (any part of) the invoice amount due has not been received by the User within the agreed
payment term, the Customer will be in default by operation of law as
referred to in Article 6:83(a) of the Dutch Civil Code and owe statutory (commercial) interest on the amount
due as referred to in Articles 6:119a and 6:120 of the Dutch Civil Code, whereas the User,
without prejudice to its right to demand performance, will be entitled to suspend the performance of its obligations
under all agreements concluded with the Customer. Interest on the amount
due will be calculated from the moment the Customer is in default, until full
settlement of the amount due.
6.4 The User has the right to have payments made by the Customer applied first to
reduce costs, then to reduce interest due and finally to reduce the
principal and accrued interest.
6.5 The Customer is not entitled to offset or suspend any amount owed to the User.
6.6 Objections to the amount of an invoice do not suspend the obligation to pay.
6.7 If the Customer continues to fail to pay the amount due in full within the
additional period set, i.e. after having received a written or electronic reminder, the User will be entitled to terminate the agreement with
immediate effect and without judicial intervention.
6.8 The User may charge the Customer for all costs that the
User must incur in or out of court to preserve its rights vis-à-vis the Customer. In that case, the
extrajudicial collection costs owed by the Customer amount to 15% of the amount owed or the
percentage permitted by law, subject to a
minimum of EUR 750 plus VAT due.
7 Retention of title
7.1 All goods delivered by the User under the agreement remain the property of the
User until the Customer has properly fulfilled all obligations arising from the agreement(s) concluded with the
User. The Customer waives in advance any right of retention with regard to the
goods delivered and yet to be delivered by the User. The retention of title does not lapse
if the User transfers its claims against the Customer to a third party.
7.2 Goods delivered by the User, which are subject to the retention of title pursuant to paragraph 1, may only be
resold in the context of the Customer's normal business operations,
provided that, until the Customer has paid for the delivered goods, the
User will be subrogated to the rights of the Customer vis-à-vis the Customer's buyer, while the delivered goods may never be used as a means of
payment. The Customer is not authorised to pledge or otherwise encumber the
goods subject to the retention of title.
7.3 The Customer must at all times do everything that may reasonably be expected of him to
safeguard the User's property rights.
7.4 If third parties seize the goods delivered under retention of title or
wish to establish or assert rights thereto, the Customer is obliged to immediately notify the
User thereof.
7.5 The Customer undertakes to insure and keep insured the goods delivered under retention of title against fire,
explosion and water damage, as well as against theft and to make the policy of this insurance available for
inspection to the User immediately on request. In the event of any payment under the
insurance, the User is entitled to these funds. The Customer undertakes in advance to cooperate with the
User in everything that may (appear to) be necessary or desirable in this context,
to the extent necessary.
7.6 In the event that the User wishes to exercise its property rights as indicated in this article,
the Customer hereby grants unconditional and irrevocable permission in advance to the
User and third parties designated by the User to enter all sites where the User's property is located and to take back such
goods.
8 Guarantees, inspection and complaints, limitation period
8.1 The User guarantees that the goods to be delivered are free from material and manufacturing defects. Parts
containing material or manufacturing defects will be replaced free of charge, if presented to the
User CIF. The User is not bound by any further guarantees. The warranty
expires 6 months after delivery.
8.2 Repaired and/or replaced parts will be delivered by the User Ex-Works. Replacement
and/or repair will not lead to an extension of the warranty period referred to in paragraph 1. Costs
related to import or export or other additional costs will be payable by the Customer.
8.3 If a varying warranty arrangement has been agreed between the parties,
it expressly applies instead of, and not in addition to, the warranty referred to in paragraph 1.
8.4 Any right to return and complain lapses if the delivered goods have been used, processed and/or delivered to
third parties. Any warranty of the User lapses as a result of modification,
maintenance or repair of the goods by parties other than (those designated by) the User, as well as in the event of
misuse, incompetent use or incorrect storage of the goods, use contrary to the user and safety instructions of the goods or external circumstances.
8.5 The Customer is obliged to examine the delivered goods (or have them examined) immediately,
or at least within 24 hours, at the time the goods are made available to him or at the time the
relevant work has been carried out.
8.6 The Customer must also investigate whether the quality and/or quantity of the delivered
goods correspond with what was agreed and whether they meet the requirements agreed by the
parties in this regard. Visible defects must be reported to the User in writing, within 5
days of delivery. Hidden defects must be reported to the User in writing immediately,
but in any case within 5 days of discovery. The notification must contain as detailed a description of the defect as
possible, so that the User is able to respond adequately.
The Customer must give the User the opportunity to investigate a complaint.
8.7 Exceeding the terms referred to in the previous paragraph will result in the forfeiture of all rights of the Customer.
8.8 Processing returns and complaints does not affect the Customer's
obligation to pay.
8.9 The User must be given the opportunity by the Customer to investigate the complaint.
To this end, the Customer must make the delivered goods, or any remnants thereof,
available to the User, failing which any right of the Customer to make a complaint will lapse.
8.10 If the complaint is justified, the User will, at its discretion, credit the purchase price,
replace, supplement, repair the delivered goods, or grant the Customer a discount. The Customer is not entitled to
compensation.
8.11 Relatively minor, commercially customary or technically unavoidable deviations and differences in
quality, colour or finish do constitute grounds for complaint. If the delivered goods have been returned
incorrectly, the User will send the delivered goods back to the
Customer at the expense of the Customer.
8.12 If it is established that a complaint (other than as referred to in Article 8.11) is unfounded,
the resulting costs incurred by the User,
including investigation costs, will be fully payable by the Customer.
8.13 Notwithstanding the statutory limitation periods, the limitation period for all claims and
defences against the User and third parties engaged by the
User in the execution of an agreement is one year.
9 Liability
9.1 The User is not liable for damage or loss of any nature whatsoever arising from the
User's reliance on incorrect and/or incomplete information provided by or on behalf of the Customer.
9.2 Any liability of the User for indirect damage or loss is excluded, including
consequential damage or loss, lost profits, missed savings and damage or loss due to business interruptions. The
User's liability is further limited to compliance with the
warranty included in Article 8.
9.3 The User's liability is in any case limited to the invoice amount.
9.4 The limitations of liability included in this article will not apply if the
Customer can demonstrate that the direct damage, loss or defect is directly and exclusively attributable to intent or gross
negligence on the part of (managers of) the User.
10 Indemnification
10.1 The Customer will indemnify the User against any claims by third parties who suffer damage or loss in connection with the execution of the
agreement, the cause of which is attributable to parties other than the
User.
10.2 If the User is approached by third parties in this regard, the
Customer is obliged to assist the User both in and out of court and to immediately do
everything that may be expected of him in that case. If the Customer fails to take adequate measures, the
User is entitled to take such measures instead, without notice of default being required. All resulting costs and damage incurred by the
User and third parties will be fully payable by the
Customer.
11 Intellectual property and privacy
11.1 All intellectual property rights vested in or relating to the delivered goods,
including modifications, manuals and other related documents or goods, remain the property of the
User or its licensors.
11.2 The User will in no event be liable if the product supplied by it or its use
infringes any copyright, exclusive right to a drawing or model, patent right or other
intellectual property right of third parties.
11.3 The User will treat the Customer's data confidentially and use it in the context of the
agreement and the User's administration. The Customer agrees that the
Customer's data may be used by the User to make further offers, unless the
Customer has notified the User in writing prior to entering into the agreement that he does not grant
permission to do so.
11.4 The Customer declares that it will unconditionally commit itself to not disclosing confidential
information and to have taken those measures required of him by law. If necessary, the parties will enter into
separate processing agreements.
12 Joint and several liability
12.1 If the Customer has in any way allowed any ambiguity to arise as to on behalf of which (legal) person an order is placed and/or for
which Customer the agreement is
executed, each of these (legal) persons and/or
Customers will be jointly and severally liable vis-à-vis the User for the obligations arising from the agreement.
13 Applicable law and disputes
13.1 All legal relationships in which the User is a party are exclusively governed by Dutch law,
even if an obligation is fully or partially performed abroad or if the
party involved in the legal relationship is domiciled there. The applicability of the
Vienna Sales Convention is expressly excluded.
13.2 The court in the User's place of domicile has exclusive jurisdiction to hear disputes,
unless the law prescribes otherwise. Even so, the User has the right to submit the
dispute to the competent court according to law.
13.3 The Parties will only appeal to the court after they have made every effort to
settle a dispute by mutual consultation.
13.4 These general terms and conditions of delivery apply from 1 May 2024.
