ARTICLE 1 – GENERAL
- In these conditions, the buyer/other party is referred to as the other party and Perfox B.V. as Perfox.
- These conditions always prevail over any possible conditions of the other party referred to in any offer, pricelist or invoice or in any other correspondence.
- The current conditions apply to every offer, agreement, safe and purchase and every delivery resulting from such.
- Deviations from or additions to these conditions only apply if they have been confirmed in writing by the board of directors of Perfox.
- lf one or more conditions of these genera! terms of delivery and payment are declared void, the other provisions of these conditions remain in full force. Perfox and the other party shall in mutual consultation agree replacement provisions that are as close as possible to the object and purport of the voided provisions.
- These conditions, including the agreement on which they are based, contain the full reflection of the rights and obligations of the parties and replace all previous verbal and/or written agreements in respect of the subject of such.
- The other party is only entitled to transfer its rights and obligations arising from the agreement on which these conditions are based as welf as these conditions themselves to a third party or third parties after prior written consent of Perfox.
ARTICLE 2 – ESTIMATES, QUOTATIONS, QUOTES, OFFERS AND FORMAT/ON OF AGREEMENT
- All estimates, quotations, quotes and offers by Perfox, in any form whatsoever, are without obligation unless the contrary expressly arises from such. Until the order has been accepted, every offer in the context of the safe and delivery of goods is to be viewed as a whole and is based on normal working hours and circumstances.
- lllustrations and descriptions in the offers, prospectuses, catalogues, drawings, models, designs, pricelists and any other representations by Perfox do not bind Perfox. Commitments by and agreements with subordinates of Perfox do not bind Perfox until and after they have been confirmed by the board of directors of Perfox in writing.
- The agreement is formed when within five working days alter il has received the order, Perfox confirms this in writing or has commenced with the execution of the order.
ARTICLE 3 – DRAWINGS, DESIGNS, ETC
- All price quotations, software, illustrations, catalogues, drawings, models, designs, specifications and other information such as measurements and the like provided by Perfox with the offer, are represented, or specified respectively, as accurately as possible. Perfox retains, insofar as applicable, the copyrights and all other intellectual or industrial property rights in respect of these documents.
These documents remain the property of Perfox, including alter the granting of the order. The aforementioned documents are only binding insofar such is confirmed in writing. Details do not have to be provided.Offers, drawings, models and designs may not be passed on or handed over for inspection to third parties without the prior written consent of Perfox.
lf, ultimately, the other party does not grant an order, these documents must alter a request to this end by Perfox be sent back to Perfox, postage paid, within five working days on penalty of a fine of €500 (five hundred euro) for each day this term is exceeded.
- lf, ultimately, the other party does not grant an order, Perfox is only !hen entitled to claim a payment for all costs relating to the offer, if it has stipulated this in advance.
ARTICLE 4 – PRICE AND RISK OF PRICE INCREASES
- For Perfox, the (purchase) price is based on the euro. lf invoicing nevertheless takes place in a different currency than the euro and !here has been an exchange rate movement between the moment the agreement was formed and the delivery, Perfox shall be entitled to review the original (purchase) price in foreign currency
- Unless otherwise stated, all prices are:
- exclusive of VAT, import and export duties, other taxes, levies and rights;
- exclusive of any possible purchase discounts;
- exclusive of the costs of packaging;
- stated in euro; any possible exchange rate movements are charged on. Waste, created during production, remains the property of Perfox
- Costs relating to the materials used by the carrier, could also be charged to the other party.
- Perfox is at all times entitled to invoice the other party one or more advances, even if this was not stated in an offer or order confirmation.
- The prices offered by Perfox are based on the price-determining factors in force at the time of the offer, including inter alia the factory prices of the goods, including wage bills.
- lf, alter the date of the offer or between the date of the formation of the agreement and the delivery date are changes in the prices published in the Perfox’s official pricelist, Perfox is entitled to change the (purchase) price agreed in the offer or formation of the agreement respectively and to charge the other party the new (purchase) price, also where it concerns larger orders, unless otherwise agreed in writing. After the change of the (purchase) price can be determined, Perfox shall be entitled to claim the changed (purchase) price in the same number of instalments in which the original (purchase) price could be claimed.
ARTICLE 5 – DELIVERY AND RISK
- Unless expressly otherwise agreed, the delivery of the goods is by delivery carriage paid.
- lf delivery is carriage paid, the goods are transported for the account and at the risk of Perfox.
- The risk does, however, transfer to the other party after delivery, whereby the moment of delivery is the moment the goods are delivered to the address the other party has provided Perfox. lf the goods are not received by or on behalf of the other party and the goods can therefore not be delivered to the intended address, the costs arising from such are for the other party.
- In all other cases than delivery carriage paid, delivery of the goods is ex factory of Perfox for the account and at the risk of the other party, whereby transport and/or insurance are for the account of the other party, unless expressly agreed otherwise. The other party is obliged to take receipt of the goods.
- lf it is agreed that the goods shall be delivered via direct supply, the risk of any improper, late or non arrival, as wel! as the risk of and during the supply, is fully for the account of the other
lf the charterer or those trom whom and/or those through whose brokerage the purchased goods are acquired remain after proper notice, wholly or in part, in default of the performance of their obligations irrespective of whatever reason or whatever cause, Perfox is entitled to terminale the agreement with the other party.
- In the event of delivery carriage paid, Perfox is obliged to ship the goods to where a vehicle is able to reach on a surfaced public road drivable for the vehicle or to where a vessel can reach on properly navigable water. The other party is obliged to take receipt of the goods there, or to have this done, and to unload them immediately, or to have this done. lf the other party fails to do so, the costs arisen are for its accounts
- Both in the event of delivery carriage paid and otherwise, the mode of transport is at the discretion of Perfox unless otherwise agreed.
ARTICLE 6 – DELIVERY TIMES
- Stated delivery times shall never be deemed to be strict deadlines, unless expressly otherwise agreed. In the event of late delivery, Perfox must therefore be issued with a written notice of
The delivery time commences from the date as stated in the order confirmation from Perfox or as stated in the offer from Perfox, provided at that time any advance invoiced to the other party by Perfox has been paid by the other party and in addition the data, documents and other information Perfox deerns it requires for the delivery (of the goods) have been provided to Perfox by or on behalf of the other party on time.
- Delivery can be in consignments as and when the goods are ready or in stock. In that event invoicing shall also be in parts. The other party is not entitled to refuse delivery in consignments.
- Perfox is entitled to deliver up to maximum 5% (five percent) more or less than agreed and to charge accordingly.
- The other party is obliged to render its cooperation so that delivery on time by Perfox is made possible. lf the data, documents and other information, necessary for the performance of the agreement on which these conditions are based are, in the view of Perfox, not in its possession on time, Perfox is entitled after consultation with the other party, to determine a new delivery date.
- lf, in the event of delivery on demand, no terms for calls have been determined, Perfox is entitled to payment three months after order. lf within three months nothing or not everything has been called, Perfox is entitled to demand in writing that the other party shall state a term within which the total quantity shall be called, which demand the other party has to fulfil within five working days. The term stated by the other party after the demand, may not exceed a timeframe of three months. During this second period of maximum three months, Perfox shall store the goods for the account and at the risk of the other party
- The delivery time shall be extended with the time during which Perfox, due to a non attributable failure is prevented to have the delivery proceed. lf the delivery time is extended on the basis of the provisions above, Perfox is not liable for any compensation due to the extended delivery time.
- Delays in the delivery as a result of overdue payments by the other party are fully for the account and at the risk of the other party. The delivery time is furthermore extended with the period(s) the delivery is postponed and/or suspended on the basis of (one or more) events as set out in articles 7 and 16 of these general terms and conditions.
ARTICLE 7 – PAYMENT
- Unless expressly otherwise agreed in writing, payment of the agreed prices for the delivery of the goods or any possible service provision shall be within thirty days of the invoice date. The date of payment is the date the bank account of Perfox has been credited.
- The term referred to in the previous paragraph applies mutatis mutandis as much as possible to the price changes referred to in article 4 of these general terms and condilions of delivery and payment.
- Perfox is entitled to invoice every consignment delivery separately.
lf an order is fulfilled in consignments, Perfox is entitled to claim payment for the partial delivery/deliveries before fulfilling the ether partial delivery/deliveries.
- The payments made by the ether party shall first be applied to settle all interest and casts payable and subsequently these due and payable invoices which have been outstanding for the longes! period, even if the ether party states that the payment relates to a later invoice. All payments shall be made without deductions, discounts or setoff at the offices of Perfox or by crediling the amount due to an account number of Perfox as indicated on the invoice, or to be further indicated by Perfox.
- All amounts to be charged to the ether party shall, in the event of the exceeding of any payment term(s) in these conditions or agreed separately, from the day following the last day of payment be increased with the statutory interest plus two percentage points per month whereby part of a month is deemed to be a whole month.
- Thirty days after the due date as referred to in paragraph 1 of this article has expired, Perfox is without any further nolice of default being required entitled to proceed to collect the amount due to it. Il in the event of late payment, Perfox has handed over its claim to third parties for colleclion, the ether party shall be obliged to pay the full sum of the extrajudicial collection
These extrajudicial collection casts are fifteen percent of the amount to be claimed !rom the ether party including the aforemenlioned interest, bul are in any event a minimum of €150 euro (one hundred and fifty euro). The ether party shall also be obliged to pay the full legal costs.
- Il the ether party fails in its payment obligation towards Perfox, Perfox is enlilled to suspend the further performance of all the agreements in force between the parties unlil this payment has been made, whilst, unless otherwise agreed, cash payment can be demanded lor further delivery.
- Should, in the opinion of Perfox, before or during the performance of an agreement,
!here be goed grounds to doubt the ether party is going to pay on time, Perfox is entitled not to deliver or cease to continue to deliver unless at its request and to its satisfaclion the ether party provides security for all that the ether party owes or shall owe Perfox. In this last case Perfox can, on penalty of the price of the already delivered goeds or any possible services becoming immediately due and payable and the ceasing of any possible further deliveries of goeds or any possible services, also demand security in the time between delivery and payment.
- The ether party is obliged towards Perfox to provide the security as referred to in paragraph 8 for all that il is due or shall be due towards Perfox, even if Perfox has not proceeded to suspend or cease its delivery performances. The casts of legal assistance, cost of service and such like incurred by Perfox are always for the account of the ether party.
- lf the other party is in default of payment and Perfox therefore repossessing the delivered goods using the retention of title as referred to in article 8 of these general terms and conditions of delivery and payment, the costs of such are for the account of the other party
- lf there is a joint order to Perfox, the other parties are, in so far the delivery (of the goods) for the benefit of the joint other parties has taken place, jointly and severally liable for the payment of the invoice(s).
ARTICLE 8 – RETENTION OF TITLE
- Perfox retains the right of ownership of the goods delivered to the other party until all its claims on the other party in respect of the consideration for the goods delivered or still to be delivered by Perfox to the other party pursuant to any agreement and in respect of compensation due to the failure to perform the aforementioned agreement, have been paid.
- As long as the ownership of the goods has not been transferred to the other party, il is not permitted to process, pledge, transfer the ownership or grant any other right in respect of il toa third party, subject to the provisions in the paragraph below
- The other party is permitted to sell and deliver the goods delivered subject to the retention of title in the context of the normal course of its business to third parties. In the event of a credit sale, the other party is obliged to demand from s purchasers a retention of title as included in this article. Apart from the aforementioned case, the other party is obliged to keep the goods delivered subject to the retention of title with the necessary care and recognisable as the property of Perfox. In the event of a breach of the above provisions, the purchase price shall become immediately due and payable in full, irrespective of any stipulation to the contrary
- The other party undertakes to insure, and keep insured, the goods delivered subject to a retention of title with a respectable Dutch insurance company against fire, explosion and water damage, theft, embezzlement and other damage and loss. The other party is obliged to produce the policy and/or receipts regarding payment of the insurance premiums for inspection on demand by Perfox. The goods delivered subject to retention of title are at the risk of the other party.
- Perfox is hereby irrevocably authorised by the other party to repossess the goods delivered subject to the retention of title or to have this done, without any legal intervention, demand or notice of default being required. The other party is obliged to render its cooperation to this subject to a penalty of€ 500 (five hundred euro) for each day il remains in breach. The repossession does not terminale the contract unless Perfox has notified such to the other party.
ARTICLE 9 – QUALITY OR CONTRACT VAR/AT/ONS
Unless expressly otherwise determined, the normal quality will be delivered and as regards type, dimensions, number, weights, colour(fastness), etc per trading unit, the normal business practices are considered to have been agreed.
- Perfox shall offset contract variations in the event of:
- changes in the order or in the conditions of the performance of any possible services;
- directions by or on behalf of the government on the basis of applicable statutory provisions or decisions, unless Perfox was or should have been aware of these when entering into the agreement;
- deviations from the provisional sums and offsettable
- lf during the performance of any possible services il appears that these services can only be performed, wholly or in part, in an altered way due to a cause which cannot be attributed to Perfox, Perfox shall enter into consultation on this with the other party. Perfox also alerts the other party of the financial consequences of such. The agreed changed performance of the services shall be settled as contract variations.
- Changes as referred to in the aforementioned paragraphs of this article shall be agreed in writing.
ARTICLE 10 – INFORMATION PROVISION BY THE OTHER PARTY
- The other party is obliged to make all data, documents and other information which Perfox in its opinion requires for the delivery of the goods or the performance of any possible services, available to Perfox on time.
- The other party guarantees the accuracy, completeness and reliability of the data, documents and other information referred to in paragraph 1 of this article, also if they originate from third parties.
- The other party is obliged to inform Perfox immediately on changed or new facts and circumstances which could be relevant for the goods to be delivered or any possible services to be performed by Perfox.
- lf and insofar the other party requests such from Perfox, Perfox shall return the aforementioned documents to the other party after the order is completed.
- Any ex1ra costs arising from the delay in the performance of the goods delivered or any possible service provision by Perfox arisen due to the failure to provide Perfox with the aforementioned data, documents and other information or to do such incompletely, inadequately and/or not on time, are fully for the account and at the risk of the other party.
ARTICLE 11 – ACCEPTANCE AND COMPLAINTS
- On delivery of the goods, the other party must investigate whether the delivered goods satisfy the agreement, also as regards any possible service provided. The duty to inspeel the number of delivered goods or any possible shortages, surpluses and/or damage rests on the other party.
lf no written and substantiated complaint is made within five werking days of receipt of the delivered goods in respect of the number or any possible shortages, surpluses and/or damage to Perfox, the quantities stated on the consignment notes, delivery notes or similar documents are acknowledged as correct or it is acknowledged that the other party has received the goods undamaged or in good order respectively. The delivery receipt must at all times be signed by or on behalf of the other party.
- Externally visible defects or externally visible deviations from the specifications must, as soon as possible but at the latest within five werking days from receipt of the delivered goods, be submitted to Perfox by or on behalf of the other party in writing staling reasons; failing which, the other party is deemed to have accepted the delivered goods, also as regards any possible service provided.
- Non externally visible defects or non externally visible deviations from the specifications must, as soon as possible but at the latest within five werking days from discovery of these defects or deviations, be submitted to Perfox in writing staling reasons by or on behalf of the other party.
- In the event of complaints, Perfox shall at all times be given the opportunity to investigate the validity of the complaints on site, or to have this lf it appears that the complaints are, for whatever reason, not valid, all costs arising from this investigation are for the account of the other party. This includes inter alia, travel expenses, accommodation expenses and personnel costs (hours spent and such like).
- No complaints are accepted in respect of goods which had their nature and/or composition changed or of goods which have been fully or partially processed and/or are damaged.
- Complaints do not entitle the other party to suspend its payment or to totally abandon payment or to offset it with outstanding items.
- lf a complaint has been made with due observance of the provisions in this article and the complaint is valid, Perfox shall in its discretion either pay a fair compensation up to at most the amount of the invoice of the part of the delivery to which the complaint relates, or replace the goods after the originally delivered goods have been returned. Perfox is not liable for any further compensation. Indirect loss is never compensated.
ARTICLE 12 GUARANTEE
- With due observance of the provisions in the next paragraphs of this article and in the preceding article 11, Perfox exclusively and only grants a guarantee in respect of the goods il has delivered or any possible services il has performed if this is indicated on the offer provided by Perfox to the other party and in addition in accordance with the further description stated in the offer.
- The possible guarantee lapses if during the further agreed term, the other party carries out repairs or makes changes (to the delivered goods) or has this done without the prior written consent of Perfox.
- The possible guarantee does not apply if the notified defects have been caused by:
- incompetent treatment;
- incompetent applicalion;
- failure to undertake proper maintenance;
- the use (of the delivered goods) for purposes which are outside the normal use (of these goods).
- The possible guarantee does also not apply if the notified defects relate to circumstances as referred to in article 14(7) of these genera! terms and conditions.
In addilion, Perfox shall not be obliged to stand by the possible guarantee if the other party fails to perform (fully) any obligation arising from the agreement on which these genera! terms and condilions are based or from a related agreement, unless mandatory statutory provisions prevent this.
- lf in the fulfilment of its possible guarantee obligation Perfox replaces parts or components, the replaced goods become its property.
- Fulfilling the possible guarantee obligation and the expiry of the further agreed guarantee term exclude every claim for rectification or compensalion of costs and loss, also pursuant to defects showing at a later date, unless mandatory statutory provisions prevent this.
- In the event the other party invokes the possible guarantee, Perfox shall at all times be given the opportunity to investigate the validity of the invocation of the possible guarantee on site, or have this done or to assess on site whether and if so which possible guarantee obligations Perfox has in this context towards the other party, or have this done. lf il appears !hal the invocation of the possible guarantee is, for whatever reason, not valid or Perfox does not in this context have any guarantee obligations towards the other party respectively, all costs arising from this investigation or this assessment respectively are for the account of the other party. This includes inter alia, travel expenses, accommodalion expenses and personnel costs (hours spent and such like).
ARTICLE 13 – RETURN SHIPMENTS
- Goods may only be returned if and insofar the board of directors of Perfox has granted its prior written consent to the other party for this and with due observance of the following provisions.
- Return shipments are only permitted in the following, exhaustively listed, circumstances:In the event of damage to the goods which has been caused during the transport of the goods to the other party;
In the event of a technica! defect of the goods;
In the event goods have been delivered which had not been ordered.
- Only goeds in !heir original packaging and in their original condition can be returned. The return shipment has to take place in a manner to be determined by
- Return shipments are not permitted when there has been:
- incompetent treatment;
- incompetent use;
- incompetent application;
- the use (of the delivered goods) for purposes which fall outside the normal use (of these goods).
- Specific, customised work (items produced or services performed in accordance with the specifications of the ether party) can never be returned.
- Perfox is entitled to keep the returned goeds for the ether party for the account and at the risk of the ether party, or have this done, if the goeds have been returned on the basis of an unjustified complaint or have been returned wrongly.
- Perfox shall not be obliged to accept return shipments or compensate for the goeds if the ether party has not fulfilled all its payment obligations towards Perfox and/or has otherwise not fulfilled all tts obligations arising from these genera! terms and conditions of delivery and payment or from the agreement on which these genera! terms and conditions of delivery and payment are
- Fulfilment by Perfox of the aforementioned arrangement in respect of return shipments excludes every claim for rectification or compensation of costs and loss, also pursuant to defects showing at a later date, unless mandatory statutory provisions prevent this.
ARTICLE 14 LIAB/LITY OF PERFOX
- Perfox does not accept liability if it is unable to fulfil its obligations due to a non attributable failure
- In these genera! terms and conditions of delivery and payment, non-attributable failures mean every circumstance through which the performance of the agreement by Perfox can reasonably no longer be demanded by the ether party including in any case war, threat of war, riot, flood, (natura!) disasters, shortage of raw materials and consumables and fuels, traffic interruptions, industrial action, exclusion of werkers, lack of staff, transport difficulties, failure in the execution of orders by supply companies in a prompt and proper manner, fire, government measures, import and export bans, operational failures and influences regarding the weather.
- In the event of a non-attributable failure, Perfox is at its own discretion entitled to either extend the delivery time with the duration of the obstruction or to terminale the agreement insofar il is affected by the obstruction. lf the ether party issues a written demand to Perfox to that end, Perfox is obliged to deciare its choice in this within five werking days.
- lf on the arising of a failure which cannot be attributed to it, Perfox has already partly performed its obligations and/or is only able to partially perform its obligations, it is entitled to invoice the already delivered goods or any possible services rendered separately as wel! as deliver and subsequently separately invoice the part of the goods or any possible services which still can be delivered by The other party is obliged to pay the aforementioned invoices as if it were a separate agreement.
- Perfox is only liable for loss suffered by the other party if it is the direct and exclusive result of a failure which can be attributed to Perfox whereby expressly only the loss for which Perfox is insured is eligible for compensation, plus the amount of the excess which according to the policy conditions is for the account of Perfox or which considering the practice in force in the relevant sector should reasonably have been insured. Perfox is not obliged to compensate other loss, immaterial loss, consequential loss, trading loss and/or business interruption loss of the other party arisen due to whatever cause. The other party must, if so desired, insure itself against last-named loss(es).
- In the event Perfox is held liable, Perfox shall at all times be given the opportunity to investigate (on site) the validity of this claim for liability, or to have this done or to assess (on site) whether Perfox is in this case liable or to have this done, respectively. lf il emerges that the claim for liability is, for whatever reason, not valid or Perfox is not liable in this case, all casts arising from this investigation or assessment respectively are for the other party. This includes inter alia, travel expenses, accommodation expenses and personnel casts (hours spent and such like).
- In addition, Perfox is not liable for:
- loss suffered by the other party and/or third parties which is the result of the provision of incorrect and/or incomplete data, designs, drawings, documents, orders or other information to Perfox by or on behalf of the other party;
- the acts or omissions of any possible third party/third parties engaged by the other party;
- the issuing of advice in respect of the choice of different products from the range of Perfox whereby the employees of Perfox exercise the utmost care
- The other party is obliged to compensate Perfox for and indemnify it against any claims by third parties arising out of and/or relating to goods delivered by Perfox to the other party.
The other party is furthermore obliged to compensate Perfox for and indemnify it against any claims by third parties and the other party arising from and/or relating to loss caused by the breach of patent rights, copyrights or other intellectual property by the use of the data, designs, drawings, documents, goods or other information provided or prescribed by or on behalf of the other party for the performance of the agreement.
- The limitation and exclusion of the liability arising from the preceding paragraphs of this article do not apply if the loss is caused by an intentional act or gross negligence of Perfox itself.
- Perfox is at all times entitled, insofar as possible, to remedy the loss suffered by the other party.
- lf it intends to hold Perfox liable, the other party is obliged to enter into consultation with Perfox on this beforehand.
- The other party is obliged to compensate Perfox for and indemnify it against any claims by third parties arising out of and/or relating to goods delivered by Perfox to the other party.
ARTICLE 15 – LIABILITY OF THE OTHER PARTY
lf the other party does not fulfil its obligations within five working days after having been declared in default by Perfox to this end, Perfox is entitled to terminale the agreement immediately without judicia! intervention whilst retaining any possible right to compensation.
ARTICLE 16 – TERMINATION AND SUSPENSION
- In the event of termination or suspension of the agreement by Perfox as a result of a non-attributable failure by Perfox, it shall not be liable to pay any comaensation.
- lf the other party fails to fulfil the obligations arising for il pursuant to any agreement entered into with Perfox properly, in full and on time as wel! as in the event of bankruptcy or a moratorium or attachments against the other party or in the event of the cessation or liquidation or the total or partial transfer of its company, il is deemed to be in default by operation of law and Perfox is entitled to terminale or suspend the agreement(s), wholly or in part, without any judicia! intervention or notice of default being required such without Perfox being obliged to pay compensation or provide a guarantee and without prejudice to any other rights Perfox might have.
ARTICLE 17 – APPLICABLE LAW
- In respect of the agreement on which these general terms and conditions of delivery and payment are based and all agreements deriving from il, the parties deciare to subject themselves to Dutch
- The applicability of the version of the Vienna Sales Convention in force at the time the agreement on which these general terms and conditions of delivery and payment or all agreements deriving from it were entered into is hereby fully ecluded.
ARTICLE 18 – DISPUTES
- Any dispute, of whatever nature, including those which are only deemed to be such by one of the parties, as a result of the agreement on which these general terms and conditions of delivery and payment are based or all agreements deriving from il, which might arise between the other party and Perfox shall to the exclusion of the jurisdiction of any other authority be heard by the District Court Groningen. This leaves unaffected the territoria! jurisdiction of the Sub-District court in respect of disputes belonging to its jurisdiction.