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Article 1. General
- The conditions apply on every offer, tender and agreement between Marcel’s Green Soap hereafter named: “User”, and a Counterparty on whom User has declared these conditions, insofar as these conditions aren’t deviated from already by both parties, explicitly stated in writing.
- The present conditions also apply on agreements with User, for the execution for which the User needs to involve third parties.
- These general conditions are equally written for the employees of User and his management.
- The applicability of possible procurement or other conditions of the Counterparty are explicitly rejected.
- If one or more provisions in these general conditions are rendered fully or partially null or void on any given moment, the remaining provisions in these general conditions remain applicable. User and Counterparty will engage in dialogue in order to come to new determinations that replace the null or void determinations, with as much regard to the original goal and scope of the original determinations as possible.
- If uncertainty exists about the explanation of one or more determinations of these general conditions, the explanation needs to take place ‘in spirit’ of these determinations.
- If a situation arises between the parties that has not been determined in these general conditions, the situation should be judged in spirit of these general conditions.
- If User does not require strict compliance of these conditions, it doesn’t mean the conditions aren’t applicable or that User in any extent would lose the right to require the strict compliance of these conditions in other cases.
Artikel 2. Tenders and offers
- All tenders and offers by User are non-committal, unless a term for acceptance has been stated in the tender. A tender or offer expires if the product on which the tender or offer applies is no longer available.
- User can’t be held to his tenders or offers if the Counterparty reasonably understands that tenders or offers, or a part thereof, apparently contain a mistake or clerical error.
- The in a tender or offer mentioned prices are VAT included and other governmental charges and possible forthcoming charges with regards to the agreement, which may contain travel and stay-,shipping and administration charges, unless stated otherwise.
- If the acceptance (whether or not on subordinate points) deviates from the offer included in the tender or offer, the User is not bound to it. The agreement is achieved not in compliance with the deviating acceptance, unless stated otherwise by User.
- A composed quotation does not oblige User to carry out part of the assignment against according part of the quotation. Offers or tenders do not automatically apply to future orders.
Article 3. Contract duration; delivery periods, execution and adaptation agreement; price increase
- The agreement between User and Counterparty is engaged for open-ended duration, unless the nature of the agreement determines otherwise or if the parties explicitly and in writing agree otherwise.
- If, for the execution of certain activities or for the delivery of certain things, a fixed term has been given or agreed to, this term is never fatal. When exceeding a term the Counterparty needs to hold User in contempt in writing. User needs to be offered a reasonable term to still execute the agreement.
- User has the right to have certain activities carried out by third parties.
- User has the right to execute the agreement in different phases and invoice every executed part on its own.
- If the agreement is executed in phases, User can suspend the execution of parts of activities that belong to a future phase until Counterparty approves the results of the prior phase in writing.
- If User needs data from Counterparty in order to execute the agreement, the execution time starts no sooner than the moment Counterparty fully delivers correct data to User.
- If, during the execution of the agreement, it seems that a proper execution requires adaptation or complement, both parties will engage in dialogue in time in order to adapt or complement the agreement. If the nature, size or content of the agreement, whether or not on request or indication by Counterparty, competent authorities and so on, is adapted and the agreement therefore changes in regards to quality and / or quantity, this can have consequences for the original agreement. For this reason, the original agreed amount can be raised or lowered. User will give a quotation as close as possible to the amount. Adaptations of the agreement can change the original execution terms. Counterparty accepts the possibility of changing the agreement, including adaptations in price and terms of execution.
- If the agreement is changed, including a complement, the User has the right to first execute this after authorization by the within User authorized person and Counterparty agrees to execution of the given price and other conditions, also including the to be determined execution time. Not or not immediately executing the adapted agreement does not declare non-performance by User and therefore Counterparty has no recourse the terminate the agreement.
- Without getting in default, User can refuse requests to adapt the agreement if this would have consequences regarding the qualitative or quantitative context of the activities or deliveries.
- If Counterparty gets in default of adequate fulfilment of his responsibilities against User, Counterparty is responsible for all damages (including costs) that arise direct or indirect to User side.
- If user agrees to a certain price when terminating the agreement, User remains the right to raise the price under following conditions, even when the price was not originally given without prejudice.
- If the price increase is caused by adaptations in the agreement;
- If the price increase is caused by an authority ascribable to User or an obligation by law weighing on User.
- In other cases, understanding that Counterparty not exercising a profession or enterprise, has the right to terminate the agreement in writing if the price increase amounts to more than 10% and takes place within three months after closing the agreement, unless User is still willing to execute the agreement based on the original agreements or if the delivery is stipulated to take place within three months after the sale.
Article 4. Suspension, dissolution and intermediate denunciation of the agreement
- User is authorized to suspend meeting the obligations or to dissolve the agreement immediately, if:
- The counterparty does not, not fully or not in time, meet the obligations considering the agreement;
- After closing the agreement, User comes to notice circumstances that empower fear of Counterparty not being able to meet the obligations;
- The counterparty at closing of the agreement is requested to assure the execution of his obligations considering the agreement and this assurance remains absent or is unfulfilling;
- If by delay on Counterparty’s side, User can no longer be requested to meet the obligations regarding the agreement against the original agreed terms, User has the right to dissolve the agreement.
- If certain circumstances arise that, by nature, make meeting the obligations considering the agreement impossible or make unchanged conservation of the agreement reasonably impossible to be requested of User.
- If dissolution is imputable to Counterparty, User has the right to claim compensation for damages, including costs, that arise direct or indirect.
- If the agreement is dissolved, the claims by User on Counterparty immediately fall due. If User suspends meeting the obligations, he remains the right for his entitlements by law and by the agreement.
- If User, based on this article, suspends or dissolves, he therefore cannot be held to claims for indemnification, whilst Counterparty, by non-performance, can be held to claims for indemnification or compensation.
- If the agreement is suspended mid-term by User, User will engage in dialogue with Counterparty to ensure the transfer of the execution of remaining activities to third parties. This unless suspension is attributable to Counterparty. Unless the mid-term suspension is attributable to User, the costs of the transfer are charged to Counterparty. User will inform Counterparty in advance as much as possible regarding the amount of the costs. Counterparty is bound to fulfil these costs within the by User mentioned terms, unless stated otherwise by User.
- In the event of liquidation, (request) of suspension of payment or bankruptcy, of seizure – if and to the extent that seizure isn’t suspended within three months – of Counterparty, of debt restructuring or any other circumstance where Counterparty no longer freely controls his capital, the User has the right to immediately terminate the order or agreement, without any obligations from his side to pay for any compensation or claims for indemnification. The claims by User on Counterparty fall due immediately in this case.
- If Counterparty terminates a placed order, fully or partially, the ordered or prepared matters will be fully charged to Counterparty, together with possible delivery costs and the working hours reserved for the execution of the agreement.
Article 5 Force majeure
- User is not bound to meeting any obligations to Counterparty if he is obstructed as a result of a circumstance caused not by fault, nor by law, a legal act or a view in traffic on his behalf.
- Under Force majeure, under these general conditions, is considered, aside from the stipulations by law and legal precedents, all external causes, foreseen and non-foreseen, which User can not influence but through which User is not capable of meeting his obligations. User has the right to claim force majeure if the circumstance that obstructs (further) execution of the agreement sets in after User had to meet his commitment.
- User can suspend the obligations from the agreement during the duration of the force majeure. If this duration is longer than two months, both parties are entitled to dissolve the agreement, without obligations to compensate the other party.
- If User, during force majeure, has already partially executed the obligations or will be able to partially execute the obligations, and if there is independent value to these parts of the obligations, User has the right to send separate invoices for the respective parts of the obligation. Counterparty is bound to fulfilling this invoice as if there were a separate agreement.
Article 6 Payment and collection costs
- Payment should always be done within 14 days after invoice date, on a method appointed by User in the invoiced currency, unless stated otherwise in writing by User. User has the right to invoice periodically.
- If counterparty remains in default for the timely payment of an invoice, Counterparty is in breach by law. Counterparty is therefore obliged to paying rent. In the event of consumer purchase, interest amounts to the legal interest. In other cases, counterparty owes a debt of 1% per month, unless the legal interest is higher, in which case the legal interest is due. The interest on the payable amount will be calculated from the moment the Counterparty is in breach until the moment the full amount is paid.
- User has the right to extend the payment done by Counterparty in the first place deducted from costs, subsequently deducting the main sum and the accrued interest.
- User can, without getting in breach, refuse an offer for payment if Counterparty appoints another sequence for allocation of payments. User can refuse full repayment of the main sum if the accrued and final interest are not being paid as well.
- Objections against the amount of an invoice do not suspend the payment obligations.
- If Counterparty is in default or in breach during the (timely) execution of his obligations, all reasonable costs in order to acquire fulfillment are addressed extra-judicial towards Counterparty. The extra-judicial costs are calculated on the base of the usual costs in the Dutch debt collection practices, at the moment being the calculation method by Rapport Voorwerk II. If User made higher debt-collecting costs that are reasonably necessary, the costs are eligible for compensation. The possible legal and execution costs will also be addressed to Counterparty. The Counterparty is also bound to interest on the due debt-collection costs.
Article 7 Retention of title
- All matters delivered by User in regards to the agreement are property of User until Counterparty has met all obligations in an appropriate way from the agreement(s) closed with User.
- Matters delivered by User, that fall within article 1., can not be resold and may never be used as a method of payment. Counterparty is not authorized to pawn matters that fall within retention of title or to object on any possible manner.
- Counterparty always needs to act reasonably within the expectations to protect the retention of title by User.
- In the case of third parties foreclosing on the matters under retention of title or wanting to claim rights on them, Counterparty is obligated to notify User immediately.
- Counterparty obligates himself to insure the deliver matters under retention of title against fire, explosion and water damage and theft and to deliver the policy of this insurance on first request to User for inspection. In the case of a possible benefit of this insurance, User has right to these tokens. As far as necessary Counterparty binds himself to cooperation with User for anything that could be necessary in these matters.
- In the case User wants to practice his right of ownership mentioned in these articles, Counterparty gives his unconditional and non-revocable permission in advance to User and by User appointed third parties to enter all places where property of User can be found to reclaim such matters.
Article 8 Warranties, research and commercials
- The by User delivered matters meet the common requirements that can be demanded reasonably at the moment of delivery and that are destined for common use in The Netherlands. The warranties mentioned in this article apply on matters destined for use within The Netherlands. For use outside The Netherlands, Counterparty himself needs to verify if the use is suited for common use there and if these meet the requirements that could be demanded there. In this case, User can demand other warranties and other conditions for the matters to be delivered or the to be executed activities.
- The warranty mentioned in paragraph 1 of this article only applies for a term of 1 week after delivery, unless the nature of the delivered seems different or parties agreed otherwise. If warranty provided by User regards a matter produced by a third party, the warranty limits itself to this provided by the manufacturer of the matter, unless stated otherwise. After the warranty expires, all costs for repair or replacement, including administration costs, shipping costs and drive-up costs will be charged to the Counterparty.
- Every form of warranty expires if a defect was caused by inappropriate or improper use or use after expiration date, incorrect storage or maintenance by Counterparty and / or third parties when, without written permission by User, Counterparty or third parties have made changes or tried to make changes, attached other matters that are not supposed to be attached or if they were handled or processed in any other way than prescribed. Counterparty also can be legible for warranty if the defect is caused by circumstances which User can not influence, including weather conditions (for example, yet not excluding, extreme rain fall or temperatures) et cetera.
- The counterparty is bound to examine the delivered or have it examined immediately on the moment the matter were disposed to him or when the activities were executed. The Counterparty needs to investigate whether quality and / or quantity of the delivered corresponds with the agreement and if it meets the demands both parties agreed to. Possible defects need to be reported to User in writing within two months. Reports need to be as detailed as possible about the defect for User to react in a proper manner. Counterparty needs to enable User to investigate a complaint or to have a complaint investigated.
- If Counterparty complains in time, this doesn’t suspend his payment obligation. Even in this case, the Counterparty is bound to take and pay the remaining ordered matters, unless there belongs no independent value to them.
- In case a defect is reported later, Counterparty has no right on repairs, replacements or indemnification, unless another term stems from the nature of the matter or other circumstances.
- If it has been determined a matter is faulty and complaints have been made in time, User will replace the matter, have the matter replaced or have replacing compensation to Counterparty within a reasonable term. In the case of replacement, counterparty is bound to return the replaced item to User and transfer the property rights to User, unless User states otherwise.
- If it has been determined a complaint is unfounded, the costs by User that rose during the process, including examination costs, will be charged fully to Counterparty.
Article 9 Liability
- If user could be liable, this liability is restricted to what is determined in this provision.
- User can not be held liable for damage of any kind, caused by User assuming false or incomplete data by or on behalf of Counterparty.
- User is exclusively liable for direct damage.
- Direct damage only includes:
- The reasonable costs for establishing the cause and the extent of the damage, as far as the determination regards the damage in these conditions;
- The possible reasonable costs made to have to inadequate performance by User meet the expectations of the agreement, as far as these can be assigned to User;
- Reasonable costs, made to prevent or limit damage, as far as Counterparty can prove these costs have had an impact on direct damage limitation as intended in these general conditions.
- User is never liable for indirect damages, including consequential damages, loss of profit, missed savings and damage by business or other stagnation. In the case of consumer sale, these limitations are not further extended than allowed by article 7:24 paragraph 2 BW.
- If user would be liable for any damage, the liability of User is restricted to maximum three times the amount of the invoice of the order, at least for the part of the order on which the liability applies to.
- User’s liability is in any case restricted to the benefit amount of the insurance company in such cases.
- The restrictions on the liability included in this article do not apply if the damage is caused by intent or gross negligence by User or his managing subordinates.
Article 10 Limitation period
- In derogation of the legal limitation periods, the limitation period of all claims and rebuttals towards User and by User involved third party for execution of an agreement amount to one year.
- The determined in paragraph 1 do not apply on legal claims and rebuttals founded by facts that would justify the statement that the delivered matter does not correspond with the agreement. The period of limitation for claims and rebuttals of this kind are two year after Counterparty has informed User of such non-conformity.
Article 11 Risk-transfer
- The risk of loss, damage or value deprecation transfers to the Counterparty on the moment matters or handed into the power of the Counterparty.
Article 12 Indemnification
- The Counterparty indemnifies User for possible liabilities by third parties that suffer damage by execution of the agreement whereas the cause can be attributed to User.
- If user would be addressed by third parties on this matter, Counterparty is bound to assist User both legally and non-legally and do everything that might be expected from him in this case. If Counterparty fails to take appropriate measures, User has the right to, without being put in breach, take these measures himself. All costs and damages for User and third parties caused by this are fully charged to counterparty.
Article 13 Intellectual property
- User reserves the rights and powers that belong to him founded by the Copyright law and other intellectual laws and regulations. User has the right to use the knowledge gained by executing the agreement for other means, as long as no strict personal information of Counterparty is notified to third parties.
Article 14 Applicable law and disputes
- Only Dutch law applies to all legal relationships where User is a party, even if a commitment is executed fully or partially in a foreign country or if the party in the legal relationship resides there. The applicability of the CISG is excluded.
- Parties will first call upon a judge after they have done efforts to the limit to settle a dispute with dialogue.
Article 15 Publication reference and changing conditions
- These conditions are deposited with the Chamber of Commerce in Amsterdam.
- The last deposited version always applies, meaning the version that applied during the establishment of the legal relationship with User.
- The Dutch text of the general conditions is always the determining factor for the explanation of them.