General Business Terms and Conditions for Sale and Delivery of SMM Europe B.V.
I. Extent of Validity
The following terms and conditions are the basis of all offers and agreements. Supplementary or differing terms and conditions of the buyer are not applicable.
Our terms and conditions apply only to persons who deal with us when taking an act in law as entrepreneurs as a part of their business activities.
Our terms and conditions also apply to deliveries from and to other countries and apply to all current and future purchase contracts and, as appropriate, to other contracts and performance, including advisory and information activities, unless amended in writing.
II. Conclusion of Contract, Properties of Our Goods
Our offers are not binding. A contract is concluded with us at the moment the buyer receives our written confirmation of an order or when we start to deliver or perform. What determines the content of a contract is our offer, the confirmation of order by us and these terms and conditions. Supplementary amendments, supplementations and ancillary agreements, in particular drawings, displays, technical data, measurements, weights or other performance parameters shall be in writing.
The agreed properties of our goods only include the properties and characteristics that are specified in our offer or our written confirmation of order.
The quality and values of the material we supply are governed solely by international standards for material. If there are no standards, accepted practices apply.
In the event of doubts, the relevant provisions of the International Commercial Terms (Incoterms 2000) shall be applied for interpretation of legal acts.
III. Delivery, Transfer of Risks
Deliveries are made CIF Cost, Insurance. Fright (Incoterms 2000).
We deliver goods by the deadline specified in a contract or set in an order confirmed by us or determined in the manner specified in the contract or in an order confirmed by us. Delivery periods start to run on the day an order is confirmed, but not before all details of an order are specified and all the necessary permits are issued. Partial deliveries are permissible unless they are expressly ruled out. The previous sentence applies even in the event of the delivery of a larger or smaller quantity of goods to an extent usual in accordance with accepted practices.
Goods are delivered in time if the buyer is asked to accept the goods from our plant or warehouse in time. If goods are to be dispatched, the delivery of goods takes place upon their handing over to the first carrier for carriage for the buyer. Our obligation is also performed in time if the first carrier is enabled to accept the goods delivered, but acceptance does not occur, without fault on our part.
Goods are delivered palleted and/or packaged and protected against corrosion, unless expressly agreed otherwise. If packaging is agreed additionally, it is usually done for a surcharge and in a manner in accordance with accepted practices. Such agreement shall be concluded in writing. Packaging material will not be recovered.
If goods are to be dispatched, we can stipulate, at the buyer’s expense, the method of dispatch and the route, means of transport and carrier, unless agreed otherwise with us in writing. If we determined the route, means of transport or carrier and the goods were not dispatched, we can proceed in accordance with the following section 6.
Events caused by force majeure entitle us to shift the delivery term by the period of the duration of the relevant limitation and by a reasonable period for renewal of operations. All facts that significantly complicate or make impossible a delivery are regarded as events caused by force majeure (such as fire, destruction of equipment or war, lack of energy and raw materials), as well as barriers on roads and in transport, independent of whether such circumstances occur on our side, at the plant of a contractor or subcontractor.
The risk of random destruction or random damage or other harm to goods is transferred to the buyer as soon as we hand the goods over to the forwarder, carrier or other person or institution that was designated as the entity performing transport, but no later than when the goods leave our plant or warehouse. If goods are prepared for dispatch and a consignment is delayed for reasons we are not responsible for, the risk is transferred with the delivery of notification of dispatch to the buyer. In this case we are entitled, as we see fit, to dispatch the goods at the expense and risk of the buyer or store the goods at our own discretion at the expense and risk of the buyer, and immediately bill the delivery of the goods.
IV. Delivery Times, Barriers to Delivery, Right to Withdraw
Dates of delivery and performance are binding only if we expressly confirmed them as such. Dates of delivery designate collection from the plant or warehouse, for deliveries paid for at the place of destination the day of delivery of the goods to the buyer.
We will not be in default with our duty to deliver and perform before the expiry of reasonable delivery dates set by us.
Cases of force majeure (unforeseen circumstances and events not caused by us that could not have been prevented even by the exercise of due diligence, e.g. work disturbances, war, barriers to transport, insufficient raw materials, official measures) suspend for their duration and to the extent of their effect our duty to deliver, even if we are already late with a delivery.
If we concluded a subcontracting contract with one of our subcontractors, the dates of delivery we stated apply, with the reservation of the timely and full performance of the subcontractor’s obligation.
In the cases specified in sections IV.3 and 4 we have the right to withdraw from a contract if we inform the buyer promptly that a case of force majeure has occurred, in the cases in accordance with Section IV.3, or about the fact that delivery in the cases in accordance with Section IV.4 will not take place in time and in full and if we promptly provide the buyer with reimbursement for any consideration rendered.
If a delivery is late for reasons that we caused, we are liable solely in accordance with Dutch legislation.
Following the acceptance of delayed consignments or performance without reservation, the buyer will be regarded as having waived its contractual or statutory claims if it does not object in writing to the delay within five business days of delivery.
V. Pricesand Payments
Unless expressly agreed otherwise, prices are CIF including packaging and excluding VAT. Additional costs of delivery (e.g. taxes, customs duty, transport costs, charges, other benefits, insurance premiums, etc.) as well as materials necessary for delivery will be paid separately by the buyer. Unless a price is expressly agreed, the prices in accordance with our specific valid price list apply. Payments will be made without the deduction of a discount.
Bills of exchange and cheques are accepted, in any case, only for the purpose of payment and only if it is agreed in advance with us. We are under no duty to accept bills of exchange and cheques.
If taxes, customs duties, transport costs, charges or other benefits of any type increase, are newly introduced or arise after the conclusion of a contract and influence the price of goods, or if other costs are increased without us having an influence on them, then we will increase the purchase price in an appropriate manner.
If the buyer is late with the performance of a contract, we have the right to stipulate for the buyer an additional period of 14 days and, after the vain expiry of such period, withdraw from the contract or freely sell the goods or auction them and request compensation due to the non-performance of a duty. The same applies if the buyer is late with regard to only partial performance.
In the event of default on a payment, the buyer shall pay us interest totalling 5% p.a. from the first day of delay. This shall in no way affect our right to compensation for damage caused in direct connection with default by the buyer. The same applies if a payment takes place later than 10 days after the delivery of an invoice.
In the event of a delay by the buyer with the payment of the price, we are entitled to prevent further alienation and processing of goods delivered. We are also entitled to take the delivered goods back at the expense of the buyer, or for this purpose enter operating or other premises of the buyer, take the goods back and, if possible, sell them in the most advantageous way. We will use the revenues from such sale, after deducting costs arising, to settle the price.
The legal consequences specified in section 9 can be avoided by the buyer by providing collateral totalling our at-risk claim.
Withholding payments or setting off counterclaims is permitted for the buyer only if and to the extent that they are undisputed and legally due counterclaims, or counterclaims we have acknowledged in writing.
We have the right to set off one of our receivables against a receivable of the buyer—it does not depend on for what legal reason—or against a payment of interest, even if the due dates of receivables are different. Such entitlement may also apply only to the payment of the remainder of a purchase price. Monetary receivables can be set off against non-monetary receivables. It is also possible to set off due receivables against receivables not yet due, in such case the date of payment of a receivable is the day of setting off.
Our consent is needed to assign claims against us.
VI. Rights and Duties of Buyer in Case of Defects
The buyer shall inspect the goods, depending on the actual situation, as soon as possible after the risk of damage devolves to the goods. If goods are to be dispatched, the buyer shall make an inspection of the goods after the transport of the goods to the place of destination, unless the buyer, at our written request, inspects the subject of sale before dispatch and promptly notifies us of any defects ascertained, which the buyer is under a duty to do. If the buyer does not perform an inspection of the goods with due diligence and in time, it cannot make claims due to defects ascertainable in such inspection, regardless of whether the goods had the defects at the time of the transfer of the risk of damage to the goods. If a complaint is not made at all or is made late, the buyer may not make reference to a defect. The same applies if the buyer does not inspect a subject of purchase, despite a request in accordance with the second sentence.
If collection is agreed, it can take place only at our warehouse; it shall be performed no later than promptly after notification of readiness for dispatch. All costs that arise through collection or are calculated for us by a third party shall be charged to the buyer. If special regulations on quality are agreed, the buyer shall collect goods at our request. If it does not collect goods at all, on time or if it does not collect all the goods, we are entitled to send the goods without collection or store them at the expense and risk of the buyer. The sending or storage of the goods will be regarded as delivery in accordance with the contract. After the performance of the agreed collection of the goods by the buyer, a complaint about material defects that could have been ascertained during the agreed type of collection will not be accepted. If some defects remained hidden to the buyer as a consequence of negligence, it can claim rights regarding such defect only if we intentionally concealed the defect or accepted a guarantee.
If we do not call on the buyer in accordance with section 1, second sentence, and if collection is not agreed in accordance with section 2, the buyer shall check the goods immediately on delivery. A complaint shall be made about defects ascertained upon delivery immediately. The buyer is entitled to make claims resulting from liability for defects only in the event that it gives us a report of the defects in the goods without undue delay after: a) It ascertains the defects; b) Exercising due diligence it should have ascertained the defects during an inspection it was under a duty to make in accordance with this Article VI; c) Defects could be ascertained later upon the exercise of due diligence.
The expiry of the guarantee term from the moment the buyer had the chance to inspect the goods rules out the option of making claims due to liability for defects. After the expiry of a period of eight days after the delivery of the goods, the making of claims due to liability for evident defects is ruled out.
Evident defects shall be reported in writing within 8 days after the delivery. Defects that could not be ascertained even during a proper check on a subject of purchase shall be promptly notified to us in writing as soon as they are evident. The buyer may not make reference to defects about which a complaint was not made in time.
For goods that were sold as reduced quality material, the buyer may not raise any claims resulting from general liability for defects or under a guarantee as far as concerns the stated reasons for reduced quality and such defects it must usually expect. When buying second-class goods, our liability for material defects is excluded.
If the buyer ascertains defects in goods, it shall immediately stop processing the goods. The buyer shall, at our request, promptly make available samples of the material complained about.
Before further processing or re-sale of goods complained about it is necessary to give us the opportunity to review the complaint. If the buyer does not promptly provide us with the necessary assistance and a real chance to check the defects in the goods ascertained and does not provide us, on request, promptly, with the goods complained about or samples of such goods, all its claims resulting from liability for defects extinguish.
In the case of legitimate and timely complaints, the buyer has rights concerning defects in accordance with legislation, but with the following limitations: a) If goods are defective, the buyer’s entitlements in the case of defects are limited first to a right to additional performance. This does not apply if additional performance is not objectively acceptable to the buyer. We have the right to choose between additional repair or an additional delivery. If additional performance is incorrect twice, or if we deny it, the buyer may reduce the purchase price or withdraw from the contract. b) The buyer is not entitled to withdraw if a defect is not significant. c) Section VII applies concerning claims for damages. d) We accept costs in connection with additional performance only if they are reasonable in individual cases, in particular in relation to the purchase price for goods. We do not bear costs that arise by goods being transported to a place of performance other than that agreed. e) If only some goods out of a large quantity of goods sold are defective, or only individual parts of an item sold are defective, the buyer’s right to withdraw from the contract is limited only to the defective goods or defective parts of goods. This does not apply if defective goods or a defective part cannot be objectively separated from the other goods or part thereof without damage or a loss of function, or if it is objectively impermissible for the buyer. The buyer shall clarify and document the reasons for impermissibility.
VII Limitations on Liability, Exclusion of Withdrawal
Unless these conditions provide otherwise, we bear liability for damage due to a breach of contractual or non-contractual duties only in the event of intentional actions or gross negligence. Our liability does not apply—except in cases of intentional conduct—to damage that could not have been expected from a specific transaction under normal circumstances or for which the buyer is insured or usually can be insured.
In accordance with regulations on a manufacturer’s liability for damage caused by a product defect, we are liable without limitation for damage caused intentionally, when intentionally concealing defects, for defects caused by gross negligence concerning a fundamental contractual duty, or damage with a consequence of detriment to life or bodily harm. We are liable to this extent also in the case of a guarantee.
We are liable for damage caused by gross negligence that is not specified in paragraph 1 with a limitation to compensation for foreseeable damage typical for a contract. Even if there is a breach of a fundamental contractual duty that consists of simple negligence, we are liable with a limitation to compensation for foreseeable damage typical for a contract.
With the exception of the cases specified above in this article, we are not liable for damage that was caused by simple negligence.
The aforementioned limitations and exclusions of liability apply to our bodies and employees.
If there is a breach of duty that we did not cause and that is not a defect in the goods, the buyer is not entitled to withdraw from a contract.
VIII. Reservation of Ownership
Until the settlement of all receivables (including all balance-receivables from an overdraft) that we have now or at any time in the future for any legal reason due from the buyer, the goods remain in our sole ownership. The buyer shall dispose of the goods only in such a manner that our ownership is not endangered.
If goods that are in our sole ownership are processed, altered, irreversibly mixed or linked to other things that we do not own, we acquire co-ownership of such thing corresponding to the value of our goods compared to the value of the other thing processed at the time of processing, alteration, mixing or linking. If such thing can be regarded as a main item, it is agreed now that the buyer transfers to us co-ownership in accordance with the amount of the share. We accept an aliquot transfer. The buyer will arrange (co-)ownership (by custody) for us. The same as for our goods delivered with a reservation applies to a product arising through processing.
The buyer is entitled to process goods with the reservation of ownership and turn them into cash via ordinary commercial dealings, provided it is not in default regarding its payment obligations to us. Building into the ground or facilities linked to buildings or use by the buyer to perform other contracts for work or contracts on delivery of work is at the same level as re-sale. Authorisation to process and re-sell terminates also if the buyer’s asset position significantly worsens. Pledging or using as security goods that are our sole property or are co-owned by us is not permissible. Receivables from re-sale (including all balance-receivables from an overdraft), claims under insurance as well as claims towards third parties due to damage, destruction, theft or loss of goods are now assigned to us by the client for security. We accept this assignment. If we have co-ownership of goods with the reservation of ownership, then assignment in advance applies to the part of a receivable that (based on the net book value) corresponds to the share of our co-ownership. Upon re-sale of the goods the buyer has to keep ownership of the goods regarding its customers with the reservation of ownership until the payment of the purchase price in full. The buyer is not entitled to sell goods to third parties if the receivable from the purchase price from re-sale may not be further assigned. The buyer shall promptly inform us of the pledging or other limitation on our receivable in favour of third parties.
With the option of rescinding it, we authorise the buyer to collect and enforce the receivables assigned to us on its own account and in its own name. This authorisation to collect can be rescinded if the buyer does not perform to us any of its payment obligations or if our receivables are endangered due to the buyer's insufficient ability. The buyer shall, at our request, inform its employees and other affected persons of the assignment of the receivable—we can do the same with the same effects—and hand over to us all information and documents necessary to collect a receivable. The crediting of the proceeds from sale to the buyer makes our receivable payable immediately and it is due without deductions by immediate transfer. The buyer will inform us, on request, of the debtors under the assigned receivables. The assignment of a receivable from re-sale is not permissible unless it concerns assignment as part of real factoring, of which we have been informed and where the proceeds from factoring correspond, at least, to the value of our secured receivable. The buyer shall notify the factor of the assignment of a receivable and refer to our ownership. The proceeds from the factoring will be credited in the amount of our secured receivable to one of our accounts. A payment order received for the assignment of a receivable to a factor is assigned by the buyer to us now in the amount of the secured receivable. We accept this assignment.
The buyer’s right to hold goods with the reservation of ownership terminates if it does not perform its obligations under this contract or other contracts. We are entitled to enter the buyer’s premises and take possession of goods whose ownership is reserved ourselves without stipulating an additional period or making a statement on withdrawal, regardless of payment or other obligations of the buyer to us, and to turn it into cash at best price possible via free sale or an auction. The proceeds from such selling will be set off against the buyer's liabilities after the deduction of costs. Any surplus will be paid out to it.
If third parties interfere with goods where ownership is reserved, the buyer will refer to our ownership and promptly inform us of it. Costs in connection with our intervention shall be borne by the buyer, we assign to it any claim we have against third parties for the reimbursement of such costs, progressively against the payment of costs in connection with the intervention.
The buyer shall, at its own expense, insure the goods whose ownership is reserved against usual risks, such as theft, damage caused by fire or water, in a sufficient manner for the real value of the goods and store them in such manner that our ownership is not endangered. In the case of an insurance event, the buyer hereby assigns to us in advance its claims due from the insurance company. We accept this assignment.
If the buyer does not perform a duty in accordance with paragraph 1, sentence 1, it shall pay a contractual penalty totalling €50,000. The payment of a contractual penalty shall not affect our entitlement to full compensation for damage or the buyer’s duty to continue to comply with its contractual duties towards us. A contractual penalty is immediately payable at our request.
The buyer is entitled to ask us to release receivables, if the value of our collateral/security exceeds our secured receivables by more than 10%. We determine the receivables that may be released.
If the law of the country to which the goods are delivered or in which they are does not allow the reservation of ownership in accordance with the aforementioned provisions, and if, however, it allows the buyer to reserve similar material rights to a subject of delivery for the purpose of securing its receivables or let them be acknowledged, upon the conclusion of a contract such rights are regarded as rights reserved for us and as rights that the buyer provided us with. The buyer shall provide assistance regarding all measures we want to take to protect our ownership right or another right instead thereof to the goods, with the reservation of ownership. For exports and in other cases that we consider as justified, we can also request the buyer to provide us with bank’s guarantees to secure all receivables under a contract.
IX. Applicable Law, Time Bars, Arbitration Clause
A contract is subject solely to Dutch law. The place of performance is a warehouse. If goods are to be dispatched, the place of performance is the place of dispatch.
All claims against the seller are time-barred upon the expiry of the statutory time bars.
All disputes arising from contracts between us and the buyer and in connection therewith will be decided with final validity by the Courts in Rotterdam, The Netherlands.
X. Data Protection