GENERAL TERMS AND CONDITIONS OF HEATEX GLASS B.V.
GENERAL PART
Article 1: Definitions
Agreement: the agreement between the Seller and the Buyer, consisting of (i) the invoice and (ii)
these Terms and conditions;
“Applicable Laws” shall mean laws, regulations, statutes, codes, rules, orders, permits, policies,
licenses, certifications, decrees, standards guidance or interpretations imposed by any governmental
authority or agency or regulator that apply to this Agreement or to the Products;
Buyer: the Seller’s counterparty, the customer, the client; as specified on the invoice;
Products: the Products sold by the Seller to the Buyer;
Seller: the Seller., a Dutch limited liability company located at Laan van Kronenburg 14, 1183 AS,
Amstelveen, The Netherlands, also trading under the name Heatex Products and Gourmet Supplies,
the user of these General Terms and Conditions;
Terms and conditions: these terms and conditions of Seller, consisting of a (i) a general part and (ii)
and additional part specifically applicable to Buyers that are food service resellers/distributors. These
General Terms and Conditions will exclusively apply to all offers and Agreements between the Seller
and the Buyer, to the extent that these Terms and Conditions have not expressly been deviated from
by the parties in writing.
Article 2: Prices
2.1 The prices stated in the Agreements will apply to delivery ex warehouse, in euro, including
loading costs, exclusive of Dutch VAT, government levies, export duties, shipping costs, freight
charges, handling expenses and packaging costs, unless provisions to the contrary have been
explicitly agreed.
2.2 The prices are based on the rates, wages, taxes, fuel prices, levies, prices, etc. as such apply on
the date of the offer or the conclusion of the agreement, as the case may be, under normal
circumstances and during normal working hours. The prices in future Agreement will not necessarily
be the same as in a prior Agreement.
2.2 Because the Products are subject to price fluctuations, the Seller may pass on price rises if prices
having increased with more than 5%, if (i) between the time of acceptance and the time of the
delivery or (ii) between the time of issue of the Agreement by Seller and the acceptance by Buyer has
passed more than one (1) month, which price changes may have occurred with respect to, for
instance, exchange rates, wages, raw materials or packaging materials.
Article 3 Delivery
3.1 Delivery will be made ex Seller’s warehouse, unless the parties agree otherwise.
3.2 The Buyer will be obliged to take delivery of the Products at the time that the Seller offers or delivers same to it or has same delivered to it by third parties, or at the time at which the Products are made available to it pursuant to the Agreement.
3.3 If the Buyer refuses to take delivery or fails to provide information or instructions necessary to effect the delivery, the Seller will be entitled to store the Products at the Buyer’s expense and risk.
3.4 If the Buyer does not take delivery of the Products within a week, the Seller will be entitled to sell the Products to another party. If it is unable to do so, the Seller will be entitled to destroy the Products. The damage incurred by the Seller in selling the Products to another party or in destroying them will be borne by the Buyer.
3.5 If the Seller has stated a delivery period, this period must be deemed to be indicative. A stated delivery date may therefore never be considered a firm deadline. If a term is exceeded, the Buyer must give the Seller written notice of default.
3.6 If the Seller requires information from the Buyer in the context of the Agreement’s performance, the delivery period will commence after the Buyer has made such information available to the Seller.
3.7 The Seller will be entitled to deliver the Products in partial shipments. The Seller will be entitled to issue separate invoices for partial shipments.
Article 4 Inspections, complaints
4.1 The Buyer will be obliged to inspect the Products supplied, or have third parties inspect same, at the time of delivery/transfer, though in any event within 2 working days. In doing so, the Buyer should inspect whether the quality and quantity of the goods delivered are in accordance with that which was agreed.
4.2 If the Buyer has been shown a sample, that sample must be presumed to have been shown as an indication only, without the good having to correspond to same, unless it has been expressly agreed that the good will correspond to same. Any deviations in quality, colour, scent, weight, concentration, quantity and size between 0 and 5% must be accepted by the Buyer.
4.3 Any visible shortfalls must be reported to the Seller in writing within 2 working days of delivery. The notice of default must specify the defect in as much detail as possible, so that the Seller is able to respond adequately.
4.4 If a timely complaint is submitted pursuant to the preceding paragraph, the Buyer will remain obliged to take delivery of and pay for the purchased Products. If the Buyer wishes to return defective Products, it may only do so after obtaining the Seller’s written permission, in the manner indicated by the Seller, at the Buyer’s expense, in undamaged condition and in the original packaging.
4.5 The Buyer must enable the Seller, upon the Seller’s first request, to inspect the goods sold in order to verify whether the complaint is well-founded.
4.6 If a complaint is well-founded, the Seller will replace the supplied goods, unless this has become demonstrably pointless to the Buyer by that time. If this is the case, the Buyer must so inform the
Seller in writing. The Seller will in all cases only be liable within the limits of the Articles ‘Warranty’ and ‘Liability’.
Article 5 Payment
5.1 Payment must be made in advance. Without receipt of the payment, the Seller will not deliver the Products.
5.2 Only if the Seller has confirmed in writing to waive the advance payment and instead accept payment afterwards, the following will apply:
a. The Seller may require full or partial advance payment. If the Buyer fails to comply with this requirement, the Seller will not be obliged to honour the Agreement or make the supply.
b. If the Buyer fails to make payment within the period agreed, it will be in default by operation of law. In that event, the Buyer will owe the Seller 1.5% in interest per month or part of a month, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate will apply. The interest on the exigible amount will be calculated from the time that the Buyer is in default until the time of full payment.
c. If the Buyer is wound up, is declared bankrupt or files for bankruptcy, is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], is placed under guardianship, attachment is levied against it or it is granted a suspension of payments – provisional or otherwise –, the Seller’s claims in respect of the Buyer will become exigible forthwith.
d. Payments will first be used to cover the costs, then to cover any interest due and finally to cover the principal sum and the accrued interest.
e. If the Buyer is in breach of contract or in default of performance or timely performance of its obligations, all reasonable costs incurred in obtaining extra-judicial payment will be borne by the Buyer. The collection costs will amount to 15% of the outstanding principal owed, with the minimum amount being EUR 500. If the Seller has incurred higher costs which were reasonably necessary, such costs will also qualify for reimbursement. Any reasonable court costs and enforcement costs will also be borne by the Buyer.
f. All Products supplied by the Seller will remain the Seller’s property until the Buyer has fulfilled all its obligations ensuing from the Agreements concluded with the Seller.
Article 6 Warranty
6.1 The goods supplied by the Seller will be in accordance with the requirements and Product information set by the producer and customary in the relevant branch of industry.
6.2 This warranty will be limited to:
- deliveries to Buyers within the EU;
- the manufacturer’s warranty.
6.3 This warranty will lapse:
- in the event of injudicious or improper use, storage or transport;
- if the Products have been processed, confused or treated by the Buyer or by third parties; and
- in the event of exposure to hazardous substances or temperatures which are too high or too low;
- if the Product supplied is not used and processed in accordance with the operating instructions; or
- in the event of use for a purpose other than that stated by the Buyer to the Seller or for a purpose for which the good is not suitable.
6.4 As long as the Buyer fails to perform its obligations arising from the Agreements concluded between the parties, it cannot invoke this warranty provision.
Article 7 Liability and indemnification
7.1 If Products supplied by the Seller are defective, the Seller’s liability to the Buyer will be limited to the provisions laid down in these Terms and Conditions under the heading ‘Warranty’.
7.2 Under no circumstances will the Seller be liable for the composition or the presence of any substances prohibited by law or bacteria in the goods supplied. The Buyer must pursue the manufacturer for any liability claims in this respect.
7.3 The Buyer is responsible for ascertaining the laws and requirements imposed in its own country. The Seller will not be liable if the Buyer’s country prohibits the goods the Buyer has purchased from being sold.
7.4 The Seller will never be liable for the reduced quality of the goods supplied more than 2 days after delivery, since the Seller will be unable to remedy the quality and quantity of the goods after delivery.
7.5 If the Seller is liable for any direct damage, this liability will be limited to the amount paid out by its insurer, or in any event to the purchase price of the Products.
7.6 The Seller will under no circumstances be liable for indirect damage, including consequential damage, loss of turnover and profit, loss of savings and any damage due to an interruption in business operations.
7.7 If the Seller is held liable by a third party for damage for which it is not liable pursuant to the Agreement with the Buyer or pursuant to these Terms and Conditions, the Buyer will fully indemnify it in that respect.
7.8 Under no circumstances will the Seller be liable for:
- damage, of whatever nature, caused by the Seller taking action based on incorrect or incomplete data provided by the Buyer;
- deviations, damage, faults and defects that have gone unnoticed in the Products/samples approved by the Buyer;
- damage resulting from raw materials that have been declared unfit because the environmental or other laws have changed since the supply;
- damage as a consequence of use that is not in accordance with the operating instructions or the Product specifications.
7.9 The Seller will under no circumstances be liable for damage ensuing from any advice given. Advice will always be given on the basis of the facts and circumstances known to the Seller and of mutual consultations, in which respect the Seller will always use the Buyer’s intention as a guideline and starting point.
7.10 The Buyer should ascertain in advance whether the purchased goods are suitable for the purpose for which it intends to use same. Should it emerge in retrospect that the purchased good is not suitable for its intended use, the Seller cannot be held liable for any ensuing damage.
7.11 The limitations of liability with respect to direct damage laid down in these Terms and Conditions will not apply if the damage is attributable to an intentional act or omission or gross negligence on the part of the Seller or its employees.
7.12 The Buyer will indemnify the Seller against any claims of third parties that may incur damage in connection with the performance of the Agreement and which is attributable to the Buyer.
7.13 The Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any claim made against the Seller for actual or alleged infringement of Applicable Laws arising out of or in connection with the supply or use of the Products.
Article 8 Passage of risk/transport
8.1 The risk with respect to the loss of or damage to the Products that are the subject of the Agreement will pass to the Buyer at the point in time at which same Products are legally and/or factually delivered to the Buyer and therefore come under the Buyer’s control or under the control of a third party designated by the Buyer.
8.2 If the Seller is to provide for the transport or storage of the Products that are the subject of the Agreement, this will be fully at the Buyer’s expense and risk.
8.3 If and to the extent that the Seller undertakes to transport, store, ship, or package the goods, or undertakes similar duties with regard to the goods, the Seller has the discretion to determine how such duty will be fulfilled. Unless otherwise agreed, the Buyer will assume all risks, including the risk of any negligence or omission on the carrier’s part.
8.4 Any specific wishes of the Buyer regarding transport, dispatch or storage will be performed only if the Buyer has stated that it will bear the corresponding additional costs.
Article 9 Force Majeure
9.1 The parties will not be obliged to fulfil any obligation if they are prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on the
part of the party that is invoking that circumstance, and which the law, a juristic act or a generally prevailing opinion does not direct will be borne by that party.
9.2 In these General Terms and Conditions, the term ‘force majeure’ should be understood to mean, in addition to its meaning according to the law and in case law, all external causes, foreseen or unforeseen, which the Seller cannot influence, such as tailbacks, power/computer failures, export impediments, accidents, theft, fire, pandemic and the consequences for manufacturing and transportation thereof, illness among staff and delays in supplies by suppliers, as a result of which the Seller is unable to perform its obligations, or to perform same on time. This will include strikes at the Seller's company.
Article 10 Intellectual property and copyrights
10.1 All goods supplied by the Seller, as well as any samples, calculations and brochures provided by the Seller, are exclusively intended for use by the Buyer, and may not be multiplied, resold, adapted, changed, copied, reproduced, made public or brought to the attention of third parties by the Buyer without the Seller’s prior permission, unless the contrary ensues from the nature of the goods sold or the documents provided.
10.2 The Buyer may not remove the producer’s name or brand from the packaging of the goods supplied or the information leaflet.
Article 11 Export
11.1 Unless provisions to the contrary have been agreed upon, payment for export transactions must be effected by means of a confirmed and irrevocable letter of credit issued by a Dutch bank. Based on this letter of credit, both transhipment and partial shipments will be allowed. The letter of credit may be transferred by the Seller.
11.2 The Buyer guarantees that, in the event the import of the goods in the country of destination requires an import certificate or licence, such an import certificate or licence has been or will have been obtained before shipment, in the absence of which the Buyer will be liable for any ensuing damage.
Article 12 Disputes
The competent court in Amsterdam, the Netherlands will have exclusive jurisdiction with regard to any disputes.
Article 13 Applicable law
All Agreements between the Seller and the Buyer will be governed by Dutch law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
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