General terms and conditions
Regulating the legal relations between Sidijk BV and its buyers, principals, etc.
Article 1: Applicability of these General Terms and Conditions
These General Terms and Conditions apply for each offer and each agreement between Sidijk BV, hereinafter Sidijk, and a buyer or principal, hereinafter also: “buyer”, where to Sidijk has declared these General Terms and Conditions applicable, insofar these General Terms and Conditions have not been rejected explicitly by parties.
Article 2: Designated offers and agreements
1. All designated offers of Sidijk are non-binding, unless these contain a term for acceptation.
2. An agreement with Sidijk is only then concluded, except for the stipulations hereafter, after Sidijk has accepted a commission in writing, respectively has confirmed. The confirmation of commission is deemed to represent the agreement correctly and fully.
3. For activities of which to their nature and scope no designated offer or confirmation of commission will be sent, then the agreement is deemed to be concluded on the moment that Sidijk has started with the actual execution thereof. The invoice will be deemed to represent the agreement correctly and fully.
4. Sidijk is authorised to – if it deems this necessary or desirable – to involve for a correct execution of the agreement, of which the costs shall be charged to the buyer in accordance with the provided price statements, if possible and/or if necessary Sidijk shall enter into consultation in this regard with the buyer.
5. Sidijk is authorised to request a down payment from the buyer at the conclusion of the agreement, before performing (further). The height of the down payment shall be established in good consultation between parties.
Article 3: Prices
1. Unless stated otherwise all price statements take place under precondition of price changes.
2. Unless stated otherwise, our prices are:
– based on the height of purchase prices, wages, wage costs, social and government levies, freights, insurance premiums and others costs applicable during the offer respectively the date of the commission;
– based on delivery ex our company, warehouse or another storage place;
– exclusive of VAT, import duties, other taxes, levies and rights;
– exclusive of the costs of packaging, loading and unloading, transport and insurance;
– stated in Netherlands’ currency, possible exchange rate changes will be charged onwards.
3. In case of increase of one or more of the cost price factors, Sidijk is authorised to increase the commission price accordingly, the one and the other in compliance with the possibly existing applicable legal regulations, it being understood that future price increases already known must be stated at the confirmation of commission. If such an increase takes place within three months after the conclusion of the agreement, then the buyer is authorised to dissolve the agreement within a reasonable term against payment of a reasonable compensation of the direct costs made by us in connection with the agreement.
Article 4: The delivery and delivery time
1. Unless agreed otherwise, delivery takes place ex-factory. As time of delivery applies the moment that the matters have been made available for transport to or for the benefit of the buyer have been made available to the buyer on the terrain of Sidijk.
2. The buyer is obliged to check the delivered and the packaging immediately upon delivery for possible shortfalls or damages, or to execute this check after notification from our side that the goods are at the disposition of the buyer.
3. Sidijk reserves the right to deliver in parts. In such a case each delivery shall be regarded as a separate transaction. Partial deliveries can be invoiced separately. The buyer is obliged to pay in accordance with the stipulations in article 6 of these General Terms and Conditions.
4. The statement of the delivery time always takes place by approximation, unless agreed explicitly otherwise in writing. The delivery time starts on the date on which the agreement is concluded. See the stipulations under article 2 of these General Terms and Conditions. Exceeding of the delivery time does not oblige Sidijk to any compensation. The buyer has no right to additional or substituting compensation of damages. The buyer is in that case neither authorised to cancel or to dissolve the agreement. Upon exceeding of the delivery time by Sidijk for another reason than mentioned in section 5 of this article, the buyer does have the right to set to us in writing a new delivery term, upon the non-compliance therewith, the buyer is authorised to dissolve the agreement, insofar not yet executed, by a written declaration. The buyer has also in that case no right to compensation of any damage suffered by him.
5. The delivery time shall in any case be extended with the duration of the period over which by Force Majeure or by act whether or not imputable, of the buyer delay in the delivery has been caused. In case the delay in the delivery time is caused by acts of the buyer, then Sidijk has the right to dissolve the agreement.
6. The buyer is obliged to take-off the goods as soon as they are offered by Sidijk. All costs and damage that emerge for Sidijk because of non-take-off by the buyer of (a part of) the goods ordered by him, are for the account and risk of the buyer, costs of therein included.
Article 5: Transport/risk
1. The manner of transport, if and insofar arranged by Sidijk, shipment, packaging etc. shall, if no further direction has been provided by the buyer to Sidijk, established by Sidijk as a good father of the house/trader, without that we bear for this any liability. Possible specific wishes of the buyer regarding the transport/the shipment will only be executed if the buyer has declared to bear the extra costs thereof.
2.The shipment of matters takes place each time, also if free of charge delivery levering is agreed for the account and risk of the buyer, even then when the transporter claims that on freight letters, shipping addresses and so forth, the clause appears that all transport damage shall be for the account and risk of the sender.
Article 6: The payment
1. Unless agreed otherwise in writing, payment must take place within 30 days after date of the invoice without deduction or set-off, either in cash or into one of the bank accounts of Sidijk.
2. Each payment of the buyer serves primarily for the satisfaction of the interest due by him as well as of the collection and/or administration costs made by us and shall thereafter be deducted from the oldest claim outstanding.
3. If by the buyer an agreed payment term or the general payment term has been exceeded, then he is in default by law, without that any prior notification of default is required. As of the date on which the buyer is in default with payment, then all other claims of Sidijk on the buyer will be payable upon demand and then the default shall also emerge immediately with regard to those claims, without notification of default.
4. In case the buyer:
a. is declared in a state of bankruptcy, submits a request to suspension of payment, or an attachment is put on the entirety or a part of his properties;
b. dies or is put under supervisor ship;
c. does not comply with any obligation resting in him on the basis of the law or of these conditions;
d. omits to pay an invoiced amount or a part thereof within the term set therefor;
e. proceeds to cessation or transfer of his enterprise or an important part thereof, including the introduction of his enterprise is a company to be incorporated or already existing, or proceeds to changing the objective of his company, then Sidijk has the right by the mere taking place of one of the aforementioned circumstances, to either regard the agreement as dissolved without that any intervention by the courts shall be required, or to claim payment in full and immediately of any amount due by the buyer on the basis of the activities and/or deliveries executed by Sidijk, without that any warning or notification of default is necessary, all of this notwithstanding our right to compensation of costs, damages and interests.
Sidijk is at all times authorised to set-off its claim on the buyer with what it is due to the counterparty. Disputes of whichever nature, do not give the buyer the right to postponement of payment.
5. Unless agreed otherwise in writing, the following applies in case of an agreement for contracting work, as a payment condition:
– upon granting the commission 30% of the agreed sum;
– after the supply of the materials 30%;
– immediately after the final delivery 30%;
– a month after the final delivery the remaining 10%.
The buyer receives therefore each time a partial invoice. In case of negligence in the payment, the stipulations in the sections 8 and 9, shall apply accordingly.
6. The buyer is in case of complaints solely authorised to withhold that part of the invoice that is in a reasonable proportion to the content and the seriousness of the complaint. This does not relieve the buyer from his obligation to payment of the remaining part of the invoice within the agreed term.
7. As of the day on which the buyer is in default to pay Sidijk, then he is liable to pay to Sidijk over all due amounts a delay interest of 1% per month or a part of the month in which his payment default continues.
8. All-in-court and out-of-court costs to be made will come for the account of the buyer. The out-of-court costs amount to 15% of the amount due by the buyer, including the aforementioned interest.
Article 7: Warranty
1. Sidijk warrants that the delivered good shall be free of defects to material or finishing during a year from the date of delivery.
2. Sidijk’s warranty on the good encompasses the repair of defects emerged within the warranty period to material or finishing, by repair or replacement of parts, such at the discretion of Sidijk. The warranty is exclusive of:
– the costs of possible diagnosis time and means of diagnosis;
– costs imputable to normal wear and tear;
– the replacement of use articles;
– show-up costs and applicable rates if warranty service is provided on location.
3. In order to enable Sidijk to fulfil its obligation from article 7 section 2, buyer shall provide to Sidijk without delay a precise written statement of the nature of the assumed defect and provide to Sidijk all otherwise requested information.
4. The costs of repair of the good:
– caused by theft of parts, disruptions, water damage, strike of lightning, molestation and vandalism, major electrical net tension, fluctuations, excess heating, fire and smoke damage or deviating environment conditions;
– to be imputed to careless or inexpert use of the good and negligence in the follow-up of instructions; are solely for account of buyer and do not fall under the warranty a described before.
5. Except for the warranty described in article 7, no other warranty obligations apply for Sidijk, explicitly or tacitly. The warranty applies only for a new delivered good, disassembled parts are not eligible for warranty.
The warranty is forfeit: if repair of a defect takes place by non-Sidijk personnel or by third parties that have not been authorised thereto by Sidijk.
Article 8. Reclamations
1. Under reclamations will be understood all grievances of the buyer with regard to the properness of the deliveries.
2. Reclamations concerning externally detectable defects, (shortfalls or damaging) of the delivered and/or the packaging must take place in writing no later than within 8 days after the delivery, as referred to article 4, of the goods. Reclamations concerning defects not externally detectable must take place in writing and as soon as possible after discovery but in any case, within 3 months after delivery, as referred to in article 4, of the goods to Sidijk under precise statement of the nature and the ground of the complaints. Reclamations over invoices must be submitted in writing and so within 8 days after the sending date of the invoices. Upon exceeding to the abovementioned terms, each claim against Sidijk concerning the defects will be forfeit.
3. If the reclamation is found well-founded by Sidijk, then Sidijk is solely obliged to replace or repair the improper goods at its free discretion, without that the buyer next to it can make any claim, to whichever compensation.
4. The submission of a reclamation never gives the buyer a right to set-off.
5. Minor deviations in quality, colour, length and thickness, which are technically unavoidable, or according to the trade sanctions are permitted in general, can render no ground for reclamation. In case of offer or delivery according to the sample, the sample applies only for the establishment of the average nature. Data and images from price papers, brochures and so forth do give no right on delivery according to those data, while neither compensation of damages can be claimed in that regard.
Article 9. The cancellation
1. Upon cancellation of the agreement by the buyer, he is liable to pay a compensation of damages of 30% of what the buyer would have had to pay for the execution of the agreement, unless Sidijk can prove that its damage is larger and/or the buyer can make it likely that the damage is smaller.
Article 10. Liability
1. Sidijk is never required to any compensation of damage, of whichever nature, directly or indirectly, including enterprise damage to movable or immovable goods, or to persons, both at the buyer and at third parties. The one and the other except for wilful intent or gross fault of Sidijk or of those for whom Sidijk is liable, to be proven by the buyer, In any case, Sidijk is not liable for damage that has emerged or been caused by the incorrect use of the delivered by the buyer, or third party or third parties.
2. Sidijk is not liable for damage which might arise to any good to which Sidijk executes, has executed or shall execute activities, as well as for what is in that good or forms part thereof, irrespective of whether that damage is caused by persons that are in the employment of Sidijk or by persons of which Sidijk makes use in another manner. In that regard it is indifferent whether the good is located under Sidijk, or elsewhere.
3. This limitation of liability applies if and insofar the liability insurers of Sidijk give no cover concerning damage caused to the buyer and/or to third parties.
4. If Sidijk, for whichever reason, is requited to compensate any damage, then this compensation of damages shall never be higher than an amount equal to the invoice value concerning the defective goods by which the damage is caused. In case of delivery in parts, we are required to compensate not more than the concerned part of the amount of the invoice.
5. Otherwise each claim against Sidijk is forfeit by the mere expiry of a year after the emergence of a claim, unless before a legal claim against Sidijk has been instigated.
6. The buyer safeguards Sidijk, its personnel or by persons put to work by or because of it, from all claim of third parties or compensation of any damage suffered by those third parties, caused by or otherwise connected to goods originating from Sidijk.
Article 11: Force Majeure
1. If it shows during the execution of the contracted work, that complete and correct compliance with the agreement, is not possible as a consequence of circumstances, that Sidijk neither knew nor should have known at the conclusion of the agreement, then parties have the right to propose to each other to change the agreement into an agreement that indeed can be complied with correctly and fully.
2. If the agreement is not changed as stated in the previous section, then parties have the right to dissolve the agreement except for in case of Force Majeure. In that case the buyer is required to compensate to Sidijk the costs already made in connection with the execution of the activities.
3. If only a certain part of the agreement cannot be complied with, for reasons such as stated in the first section of this article, then for the non-executable part of the agreement dissolution shall take place, unless this cannot be required in reasonableness.
4. If the Force Majeure lasts longer than 30 days, both parties have the right to suspend or to dissolve the execution of the agreement in whole or in part, for the part that the Force Majeure relates to, by a written declaration, without being held to any compensation of damages.
Article 12: Intellectual property
1. With regard to catalogues and/or drawings etc. made available by Sidijk, as well as with regard to exhibits that can be part of any right of intellectual and/or industrial property or a right equal thereto, applies that these remain property of Sidijk.
2. In case of manufacturing of goods on the basis of drawings, models, samples or other directions in the broadest sense of the word, received from buyer, the buyer assumes the full warranty, that by the manufacturing and/or delivery of these articles no brand, patent, use, trade model or any other right of third parties will be infringed and the buyer safeguards Sidijk in that regard from all claims of whichever third party.
Article 13: Retention of title
1. As long as the buyer has executed no full payment, the goods remain property of Sidijk. The buyer is obliged to ensure careful treatment and does not have the right to surrender these goods to third parties or to give them as lien, to loan against them or to remove or let remove them from the areas where they have been delivered, until the entire purchase sum and the possible additional costs thereto have been paid in full. Sidijk is authorised to collect the goods if the buyer proves not to be able to pay. Costs of use as well as of transport will in that case be for the account of the buyer that remains in default.
Article 14: Extra-work and/or lesser-work
1. Extra-work and/or lesser-work shall be settled according to fairness. To extra-work belong in general all activities and deliveries that are not included in the agreement and that are required by the buyer.
Article 15: Resolution of disputes
1. The courts in Leeuwarden, the Netherlands are exclusively authorised to take knowledge of disputes, unless the Section Canton is competent according to the law. Nevertheless, Sidijk remains authorised to subpoena the buyer before the court competent according to the law or treaty.
Article 16: Applicable law
The Laws of the Netherlands are applicable to each agreement between Sidijk and the buyer.
Article 17: Changing and location of the General Terms and Conditions
1. These General Terms and Conditions have been filed at the offices of the Chamber of Commerce and Factories in Leeuwarden, the Netherlands, Chamber of Commerce number 60036370.