Article 1: Definitions
For the purpose of these general terms and conditions the following is understood as:
a. supplier: the private company Koffiebranderij Beukenhorst B.V. in Lichtenvoorde;
b. other party: the natural or legal person with whom the supplier concluded a sale and purchase, rental and/or loan agreement with regard to the delivery of products and/or the supply of services.
Article 2: General
1. These general terms and conditions are applicable to the conclusion of, the content of, and the compliance with any and all agreements concluded between the other party and the supplier.
2. General terms and conditions of the other party are only applicable if it was expressly stipulated in writing that they shall apply to the agreement between the parties with the exclusion of the present general terms and conditions of delivery.
Article 3: Offers, proposals, conclusion of agreement
1. Any and all proposals, offers, pricelists, delivery times, etc. of the supplier are subject to contract unless they contain a time limit for acceptance.
2. If an offer and/or proposal contain a non-committal offer and the said offer is accepted by the other party then the supplier is entitled to revoke the offer within two days after receipt of acceptance.
3. Proposals of the supplier can only be accepted in full and without differences.
4. The agreement between the other party and the supplier is only concluded following the written confirmation of the contract by the supplier.
5. The rental and/or hire purchase and/or loan of the machines and other products take effect on the date determined in the relevant agreement(s) between the supplier and the other party and are concluded for the term specified in the same.
Article 4: Price
1. Unless stipulated otherwise, all prices in the agreements are excluding the costs of transport, insurances, installation, and potential duties.
2. The price that the supplier indicated for the performance to be delivered by the same is exclusively applicable to the performance in conformity with the stipulated specifications. In case of combined offers there is no obligation to deliver a part of the total performance at the amount quoted in the offer for the said part or at a proportionate part of the price quoted for the whole.
3. If a price has not been stipulated between the parties but if the parties concluded one or more agreements with a similar or equivalent content during a year prior to the agreement then the price shall be calculated on the basis of the production methods and calculation rates applied in connection therewith.
Article 5: Price changes
The supplier is entitled to increase the stipulated price if one or more of the following circumstances occur after the conclusion of the agreement: increase of the costs of raw materials, machines to be delivered or services to be supplied by third parties that are required for the implementation of the agreement, salaries, employer’s contributions, national insurance contributions, costs associated with other terms and conditions of employment, implementation of new and increase of existing official duties on raw materials, energy or residual substances, a considerable change in exchange rates or, in general, circumstances that are comparable with the same.
Article 6: Payment term
1. Unless stipulated otherwise, the other party must pay the price and the other amounts payable pursuant to the agreement within 14 days after the date of the invoice, without being able to rely on any discount, setoff or suspension. The payment must take place cash on delivery if the other party is a natural person who does not act in the course of a profession or business. In case of late payment the other party shall be in default without a notice of default by the supplier being required.
2. In case of a stipulated delivery in instalments the supplier is entitled to, after delivery of the first instalment, require, in addition to payment for this instalment, payment for the costs incurred for the total delivery, e.g. machines or raw materials whether or not specifically purchased in connection therewith.
3. The other party is at all times and regardless of the stipulated payment terms held to on demand of the supplier provide security for the payment of the amounts payable to the supplier pursuant to the agreement.
4. If the other party does not pay in a timely fashion as intended in paragraph 1 of this article then on account of the delay in the payment of the payable amount the other party shall be liable to pay the statutory commercial interest or, where applicable, the statutory interest on this amount as from the date of the invoice.
5. In case of late payment as intended in paragraph 1 of this article the other party shall, apart from the payable amount and the accrued interest, also be held to reimburse both extrajudicial and judicial collection costs, including the expenses of lawyers, bailiffs, and collection agencies, in full. The extrajudicial costs are set at a minimum of 15% of the principal sum with interest with a minimum of € 100.00.
Article 7: Method of delivery; reservation of title
1. Indicated time limits within which the machines and ancillary products must be made available can never be qualified as a fatal deadline, unless expressly stipulated otherwise.
2. In case of delivery in instalments each phase is qualified as an individual transaction and can also be invoiced accordingly.
3. Should it appear not to be possible, on account of a cause within the control of the other party, to deliver then the supplier reserves the right to, after the other party has been given written notice of default and after the time limit specified in the notice of default has expired, store the machines and ancillary products at the risk of the other party. After a period of two weeks after the other party was given notice of default has expired the supplier shall be authorised to dissolve the agreement. The above does not affect the obligation of the other party to pay the stipulated price.
4. Delivery of the machines and the ancillary products takes place once only at an address indicated by the other party, unless stipulated otherwise in writing. The other party should provide for proper accessibility of the destination and/or unloading location and/or location where the machines should be placed.
5. In addition the other party should provide for power and water connections within the distance orally specified by the supplier. Potential costs of construction and maintenance of connections are at the expense of the other party.
6. In addition the other party should see to it that the location of destination is sufficiently accessible to the supplier, including its staff or auxiliary persons, machines, and tools.
7. The stipulated place of destination of the machines should be a suitable location and should be free from excess materials, plants, cupboards, and the like during the delivery and/or placing. If this provision is not met at the time the machines are placed then the costs for the performance of these (additional) activities are at the expense of the other party, unless stipulated otherwise in writing.
8. The supplier is authorised to in connection with the compliance with financial obligations of the other party request a security deposit of 25% of the total rent and/or purchase price and/or hire purchase price or security and/or a 50% payment in advance before proceeding with the delivery of the machines and ancillary materials.
9. After the rental and/or hire purchase the security deposit shall, provided that the machines were returned in the state previously determined in the agreement, be repaid after all financial obligations with regard to these agreements have been complied with by the other party in full. This security deposit also qualifies for settlement.
10. The other party is never allowed to move or make a change in the rented machines and/or the machines on loan. Costs deriving from the same shall be charged to the other party.
11. The machines and ancillary products are delivered, assembled, and connected at the stipulated location.
12. If the delivery of the machines and ancillary products cannot take place in a normal manner or without an interruption due to causes beyond the control of the supplier then the supplier is entitled to charge the additional costs deriving from the same to the other party.
13. Any and all expenses that the supplier incurs at the request of the other party are fully at the expense of the latter, unless stipulated otherwise in writing.
14. With regard to the machines the other party shall only use the ingredients and ancillary products that originate from the supplier, in order to avoid malfunctioning.
15. If the rental and/or loan agreement expires, is terminated or dissolved then the supplier is entitled to immediately take back the machines and the ancillary products.
16. The other party is held to see to it that upon restitution the rented machines and other goods and/or the machines and other goods on loan are in the state in which the other party received the same, barring wear and tear due to normal use.
17. During the term of the rental and/or hire purchase and/or loan agreement the supplier is authorised to make changes to the machines or to place similar new or revised machines to replace previously placed machines.
18. The other party must handle the machines and ancillary products as befits a good pater familias.
19. Each and every delivery of goods by the supplier to the other party takes place under reservation of title until the other party has complied with everything that the other party is held to pay on account of an agreement.
Article 10: Inspection upon delivery; complaints
1. The other party is held to inspect expeditiously after delivery whether the supplied goods comply with the agreement and is moreover held to immediately inform the supplier in writing as soon as the contrary becomes apparent. The other party should perform the aforementioned inspection and make the relevant notification within at the latest 8 days after delivery.
2. The supplier is always entitled to replace a previously faulty performance by a new proper performance, unless the default cannot be remedied.
3. The compliance with the agreement is deemed to be proper between the parties if the other party failed to perform the inspection or make the notification as intended in paragraph 1 of this article in a timely fashion.
4. The performance of the supplier is moreover deemed to be proper between the parties if the other party commissioned the delivered goods or a part of the delivered goods, processed or treated the same, delivered to third parties, respectively allowed third parties to commission the same, had the same processed or treated or delivered to third parties, unless the other party observed the provisions set forth in paragraph 1 of this article.
5. If the other party observes visible defects upon delivery then these should be recorded on the confirmation of receipt and/or the packing slip, such followed by immediate written confirmation within 24 hours of the same to the supplier.
6. Complaints do not suspend the payment obligation of the other party. The supplier should be given the opportunity to examine the complaint. If a return of the machines and/or ancillary products appears to be necessary then this shall only take place at the expense and risk of the supplier if the latter expressly gave its prior written consent, unless the replacement is the result of facts or circumstances that can be blamed on the other party.
7. If the return is related to a complaint as intended above then the return shall only take place at the expense and risk of the supplier and in a manner to be determined by the same if the supplier holds the complaint to be justified.
8. If the nature and/or composition of machines or other products were changed after delivery, were processed or treated, damaged or repacked, either in whole or in part, then each and every right to complain expires.
9. In case of unjustified complaints the damages shall be settled in accordance with the provisions set forth in article 8.
Article 11: Force majeure
1. Shortcomings of the supplier in the compliance with the agreement cannot be blamed on the same if they cannot be attributed to its fault and should neither be at the expense of the same by law, the agreement or generally accepted practice.
2. Shortcomings of the supplier in the compliance with the agreement due to war, mobilisation, disturbances, flooding, closed navigation, other transport impediments, stagnation in respectively limitation or discontinuation of the supply by public utilities, lack of gas, mineral oil products or other resources for power generation, fire, machinery breakdown, and other accidents, industrial action, lockout, actions of trade unions, export restrictions, other official measures, failing delivery of necessary materials and semi-finished products by third parties, intent or gross negligence of auxiliary persons, and other similar circumstances, are qualified as circumstances that cannot be blamed on the supplier and shall not entitle the other party to claim dissolution of the agreement or compensation.
Article 12: Liability
1. The liability of the supplier on account of the agreement with the other party is limited to the amount that is, according to the principles of reasonableness and fairness, in proportion to the stipulated price.
2. The supplier shall not be liable for damages of any nature whatsoever that occur as or after the other party has commissioned the manufactured goods, delivered, processed or treated the same, delivered to third parties respectively had third parties commission, process or treat the same or had delivered to third parties.
3. In addition the supplier shall neither be liable for damages in the form of lost turnover or reduced goodwill in respect of the business or the profession of the other party.
4. If apparent defects occur with regard to the delivered machines and ancillary products that should already have been present at the time of delivery then the supplier commits to replace the machines free of charge.
5. The supplier warrants the normal quality and reliability of the machines.
6. If goods delivered by the supplier are covered by a manufacturer’s warranty then the said warranty shall equally apply between the parties.
7. The other party forfeits its rights vis-à-vis the supplier and shall be liable for any and all damages and shall indemnify the supplier against each and every claim of third parties for compensation if and to the extent that the aforementioned damages are the result of injudicious use and/or use in breach of instructions of the supplier or manuals and the like and/or injudicious keeping (storage) of the delivered goods by the other party.
Article 13: Bankruptcy, no power of disposition and the like
Without prejudice to the provisions set forth in the other articles of these terms and conditions the agreement concluded between the other party and the supplier is dissolved, without judicial intervention and without any notice of default being required, when the other party is declared bankrupt, applies for (provisional) suspension of payment, is affected by an executory attachment, is subject to a guardianship order or is placed under administration or otherwise loses the power of disposition or legal capacity with regard to its assets or parts thereof, unless the receiver in the bankruptcy or the administrator regarding the suspension of payment acknowledges the obligations pursuant to the agreement as estate debts.
Article 14: Disputes
Any and all disputes that may arise further to the agreement between the other party and the supplier or further agreements concluded between them shall be settled by the competent court in the district where the supplier holds it corporate seat, without prejudice to the authority of the supplier to, if so desired, address the statutorily competent court.
Article 15: Applicable law
Dutch law governs the agreement concluded between the supplier and the other party.