Filed with the Chamber of Commerce in Zwolle on 06.02.2007 under number 38016447
Article 1 Definitions
1.1 For the purposes of these terms and conditions, Veenhuis refers to: the private company with limited liability Veenhuis Machines B.V. with its registered office and principal place of business in Raalte.
1.2 Customer is defined in these general terms and conditions, among other things, as the customer of goods supplied by and/or manufactured by Veenhuis as well as that by order of whom and for whose account services are performed and/or goods are manufactured.
Article 2 Applicability
2.1 These general terms and conditions apply to all offers from Veenhuis and agreements arranged be-tween Veenhuis and the customer , as well as the acceptance of orders and the performance of ser-vices by Veenhuis. These general terms and conditions are also applicable to every negotiation and other pre-contractual situation in which Veenhuis is involved.
2.2 The applicability of the general terms and conditions of the customer involved with Veenhuis are ex-plicitly excluded. Any conditions to the contrary only form part of an agreement to the extent that these conditions or provisions are accepted explicitly and in writing by Veenhuis.
Article 3 Offer and conclusion of the contract
3.1 Every offer made by Veenhuis is without engagement, unless explicitly stated otherwise.
3.2 An offer is not valid after 30 days. The offer shall lapse after 30 days unless Veenhuis has provided explicit notification that it wishes to honour the offer after the period of validity has expired.
3.3 Veenhuis is only bound by juristic acts (including any offers) if these have been performed by em-ployees authorised to do so. Juristic acts performed by unauthorised employees only bind Veenhuis in the event it has explicitly confirmed these juristic acts.
3.4 An agreement, including any additions or changes thereto, shall first be concluded by recording these in writing in a contract signed by the parties or in a confirmation signed by Veenhuis.
3.5 A confirmation in writing signed by Veenhuis is valid as a complete and accurate recording of the contents of the concluded agreement, unless the customer has made its objections known to Veen-huis in writing within four calendar days of the date this confirmation was sent.
3.6 If a customer provides Veenhuis with information, drawings, etc., Veenhuis may assume the accu-racy thereof and will base its offer on the contents therein.
3.7 If its offer is not accepted, Veenhuis shall retain the right to charge the customer for all of the costs it has had to incur in order to provide the offer.
Article 4 Prices and price modifications
4.1 The costs of loading, transport and unloading of the goods as well as any packaging costs are not included in the price and if Veenhuis shall be held responsible for the loading, transport and unload-ing as well as packaging of the goods, then the customer will be charged for this separately.
4.2 The prices are based on the actual costs on the offering date. If these are changing, Veenhuis be-houdt zich het recht voor?, to charge the current prices on the day of delivery. This is also be valid when the priceincreasing factors were foreseen at the timepoint from the agreement.
4.3 Payment of the amount due as a result of the increase in price as mentioned in the previous para-graph of this article will coincide with the payment of the principal amount or the last installment.
Article 5 Intellectual property rights
5.1 Unless otherwise agreed upon in writing, Veenhuis shall retain the copyrights and all of the rights of industrial property to the offers, designs, images, drawings, prototypes, software, etc. it has supplied.
5.2 The rights to the information mentioned under paragraph 1 of this article shall remain the property of Veenhuis, irrespective of whether the customer has been charged for the costs of the production thereof. This information may not be copied, used or showed to third parties without express permis-sion from Veenhuis. Should the customer violate this provision, it will owe a fine of € 25.000,00 per violation, payable immediately, without prejudice to Veenhuis' right to claim full compensation for damages.
5.3 The customer must return the information that was provided to him, as mentioned in paragraph 1, upon first request within the period stipulated by Veenhuis. Should the customer violate this provi-sion, it will owe Veenhuis a fine of € 1.000,00 per day. This fine may be claimed in addition to the, possible, compensation for damages in accordance with the law.
Article 6 Recommendations, drawings, calculations and designs
6.1 The customer may not derive any rights from the recommendations and information that it receives from Veenhuis if these do not have any direct connection to the agreement and/or the order.
6.2 The customer is responsible for the drawings and calculations created by it or on its behalf and for the functional suitability of the materials prescribed by it or on its behalf.
6.3 The customer shall indemnify Veenhuis for every liability from third parties with regard to the use of drawings, calculations, samples, prototypes and the like supplied by or on behalf of the customer.
6.4 Veenhuis is entitled to inspect the materials that the customer would like to use or have this done, at its own expense, prior to these being used.
Article 7 Delivery period and transfer of risk
7.1 The approximate delivery date shall be determined by Veenhuis and set out in the offer mentioned in Article 3 paragraph l. The delivery time observed by Veenhuis shall, unless explicitly indicated other-wise by Veenhuis, never be considered to be a firm date.
7.2 In determining this delivery date, Veenhuis assumes that the order may be fulfilled under the circum-stances known to it at that time.
7.3 If the agreed delivery period is exceeded, under no circumstances shall this confer entitlement to compensation for damages, unless this is agreed upon in advance in writing at the time of sale.
7.4 Interim changes in specifications upon request of the customer, which can lead to a delay in delivery time, will be entirely at the risk and expense of the customer.
7.5 Delivery shall occur ex works, a term of delivery which is explained in accordance with the Incoterms 2000 which have been drawn up by the ICC (International Chamber of Commerce); any risk associ-ated with the goods shall pass to the customer at the moment that Veenhuis makes the goods avail-able to the customer.
7.6 Irrespective of the provision in paragraph 5 of this Article, Veenhuis and the customer may agree that Veenhuis will bear responsibility for the transport of the goods. In this case, the full risk of storage, loading, transport and unloading shall be borne by the customer.
7.7 Also in cases where Veenhuis installs and/or assembles the goods sold, the risk in relation to the goods shall pass to the customer at the time that Veenhuis makes the goods available to the cus-tomer at Veenhuis' business premises or at another agreed upon location.
Article 8 Trade-in
8.1 In the event the customer satisfies its financial responsibility towards Veenhuis in a manner other than through the payment in cash, and to which Veenhuis will also explicitly have agreed to and ten-dering in payment would also be involved in the sense of Article 6:45 of the Dutch Civil Code, then the customer shall have the right to continue to use the object traded in at Veenhuis' discretion, or to continue to use a replacement object made available by Veenhuis until the goods sold by Veenhuis to the customer have been delivered, unless otherwise agreed upon at the time of sale.
8.2 Up until the moment that Veenhuis has delivered the object it has sold to the customer and the cus-tomer has brought the object to be traded in under Veenhuis' control, the traded in object shall be en-tirely at the customer's risk and expense.
8.3 If the object tendered in payment upon delivery to Veenhuis is found to be in a condition other than that in which it was found at the time Veenhuis and the customer had agreed that the object would be tendered in payment, or at least the time that the price of the object tendered in payment was de-termined by Veenhuis and the customer, all of this at the exclusive judgement of Veenhuis, Veenhuis is entitled to redetermine the price of the tendering in payment (unilaterally) and/or to dissolve the agreement to tendering in payment without a notice of default being required.
8.4 In the event Veenhuis has exercised its right to dissolve the agreement for tendering in payment, the customer is bound to fully fulfill its financial obligations with respect to Veenhuis by payment in cash.
Article 9 Payment
9.1 Payment must be made to a bank account designated by Veenhuis.
9.2 Payment of the agreed upon price must be made within 15 days of the invoice date, unless otherwise agreed upon in writing.
9.3 The valid payment date shall be that date upon which the amount due has been credited to a bank account number indicated by Veenhuis.
9.4 The customer is not entitled to the settlement of, or application of any deduction or discount on the agreed upon price, such as is indicated on the invoice and an invoice which relates to another agreement entered into with Veenhuis.
9.5 Veenhuis is entitled at all times to ask the customer to provide sufficient security for the fulfillment; the customer shall grant this security upon first request by Veenhuis. Veenhuis is entitled to suspend the fulfillment of its obligations until the request for security has been provided.
9.6 All claims for payment of the customer may be immediately due and payable if:
9.6.a a payment period has been exceeded;
9.6.b the customer has been declared bankrupt, or has applied for a suspension of payments, or the debt rescheduling law for natural persons is declared applicable to him;
9.6.c property belonging to the customer has been attached;
9.6.d the customer's business is liquidated or wound up;
9.6.e the customer is placed under a guardianship order or administration or dies.
9.7 If payment has not been made within the agreed upon term of payment, without further demand or notice of default being required, the client shall owe interest immediately upon the amount which has become payable to Veenhuis, calculated from the due date up to and including the date of payment. This interest shall amount to 12% per annum, yet is equal to the statutory rate of interest if this is higher. For the purpose of calculating the interest due, any portion of the month payment is overdue shall be treated as a full calendar month.
9.8 If payment has not been made within the agreed period for payment, the customer is bound to Veen-huis to, should Veenhuis decide to resort to extrajudicial collection procedures, pay Veenhuis for the extrajudicial costs of collection incurred. These costs shall be set at 15% of the principal.
Article 10 Liability
10.1 With the exception of gross negligence and/or intention on the part of the management of Veenhuis or one of the managerial staff at Veenhuis, every liability and every demand for compensation for damages is excluded. Nor is Veenhuis responsible to compensate (trading) losses, also including loss of profits or income and to compensate intangible losses. Furthermore, every claim which does not relate to the goods delivered and/or parts thereof, such as consequential loss for example, is ex-cluded.
10.2 Without prejudice to that which is stipulated in paragraph 1 of this article, every claim for compensa-tion for damages is limited to an amount not to exceed that amount for which Veenhuis is insured for third-party liability.
10.3 The customer is obliged to indemnify Veenhuis against all costs, losses and interests which should arise for the customer as a direct or indirect consequence of action, which may be instituted against it by third parties relating to the performance of this agreement - and in general, relating to the inci-dents, actions or omissions for which Veenhuis is not liable with respect to the customer pursuant to these terms and conditions.
10.4 Pursuant to the agreement, the customer is obliged to obey a call into action by Veenhuis.
Article 11 Claims
11.1 Upon delivery of the goods, the customer must inspect the delivery to determine whether it corre-sponds to its order and/or assignment.
11.2 Claims regarding goods delivered or services rendered shall only be processed by Veenhuis pro-vided Veenhuis is notified of these in writing within eight (8) days of the receipt of the goods.
11.3 Claims relating to invisible defects must be submitted by the customer within eight (8) days of the de-termination thereof by registered post or by fax/e-mail stating the defects.
11.4 Claims relating to invoices issued shall only be processed by Veenhuis if Veenhuis has been notified of these in writing prior to the invoice due date.
11.5 Claims do not suspend obligations on the part of the customer arising from any agreement entered into with Veenhuis.
Article 12 Warranty
12.1 With due observance of the restrictions stipulated in these terms and conditions, in the delivery of goods and the execution of work, Veenhuis guarantees the soundness of these goods and the per-formance of the work, all of this in such a manner that all of the defects which the customer is able to prove have arisen within twelve (12) months of the delivery as specified under Article 7 of these gen-eral terms and conditions exclusively or dominantly as a direct result of an inaccuracy in a construc-tion designed by Veenhuis or as the result of faulty workmanship or the use of poor materials, shall be repaired or replaced by new goods free of charge by Veenhuis in its factory, or free of charge at the place where the goods are located, all of this at the discretion of Veenhuis. In the event Veenhuis indicates that it wishes to repair the item at its own premises, the customer shall return the goods carriage paid to Veenhuis. If Veenhuis indicates that it would like to repair the item on location, then the customer shall provide Veenhuis with the opportunity to do so at its own expense, and provide Veenhuis with (utility) equipment and aids and company materials. Any costs which result from the failure to fulfill this obligation or fulfill it in a timely manner shall be at the customer's expense. The costs of disassembling, transport (of the goods and/or parts concerned) or assembly of the item to be repaired shall be at the expense of the customer in all cases.
12.2 The warranty as stated in paragraph 1 of this Article does not apply if the defects are the result or partially the result of normal wear and tear, injudicious or improper treatment or use, injudicious or improper maintenance or if the item has been used for other than normal (company) purposes or has been utilised incorrectly or if the customer has failed to strictly follow operational instructions pro-vided by Veenhuis.
12.3 The warranty as specified in paragraph 1 of this article as it applies to goods and/or parts from a third party is limited to the warranty extended to Veenhuis by third parties for these goods and/or parts. The warranty as specified in paragraph 1 of this article does not apply with respect to defects which are wholly or partially the result of any government regulation with regard to the nature or quality of the materials used. The warranty as specified in paragraph 1 of this article does not apply to the goods used by Veenhuis which have been supplied in consultation with and/or by the customer.
12.4 The claim under a warranty shall lapse (furthermore) if:
12.4.a if the customer has not complied with that which is stipulated under Article 11 of these gen-eral terms and conditions;
12.4.b if twelve (12) months have passed since delivery as specified in Article 7 of these general terms and conditions;
12.4.c if the repairs or other work is performed on the goods by the customer itself or by third par-ties without prior written permission from Veenhuis, or if modifications or changes have been applied to the goods;
12.4.d if the customer does not provide Veenhuis with the opportunity to investigate claims and to remedy any defects immediately;
12.4.e if the customer fails to satisfy any of the obligations, or fails to comply with them on time or properly which arise from the agreement entered into with Veenhuis or from another agree-ment entered into with Veenhuis;
12.4.f if the customer fails to return a warranty form, filled in completely, to Veenhuis within 30 days of delivery.
12.4.g if the damage is the result of external contingencies.
12.5 The following do not fall under the warranty:
12.5.a Performance-related complaints.
12.5.b Loss of income.
12.5.c Any and all local applicable taxes
12.5.d Travel and accommodation expenses
12.6 Spareparts delivered in replacement or repair of materials and/or other work shall not, under any cir-cumstances, serve to extend the warranty period for the item in question.
12.7 In replacing defective spareparts which are subject to wear with new spareparts, Veenhuis retains the right to charge for the reduction in value of the old spareparts.
12.8 In the event Veenhuis is, for whatever reason, not capable of supplying spareparts for the goods in replacement of parts delivered for goods under the provisions of the warranty, in the event it may be reasonably assumed that the impediments are of a temporary nature, the warranty obligations shall be suspended until the impediments have been removed, whereas, in the event it may be reasonably assumed that the impediments are permanent in nature, Veenhuis shall reimburse the monetary value of the parts at the cost price originally paid by Veenhuis for these or similar parts for goods, without the customer being entitled to dissolution and/or compensation for damages as a result.
12.9 The alleged failure on Veenhuis' part to fulfill its warranty obligations does not release the customer from its obligations, which arise from the agreement concluded with Veenhuis or from any other agreements entered into with Veenhuis (which arise from these).
12.10 Veenhuis is entitled to recover any costs resulting from unjustly invoking the warranty obligations de-scribed in this article from the customer.
12.11 Both in the case of customers located outside of the Netherlands as when reasonable suspicion ex-ists regarding a customer's inability to pay, Veenhuis is always entitled, prior to fulfilling the warranty obligations described in this article, to demand security, or pre-payment, for the costs involved in this process.
Article 13 Suspension and Dissolution
13.1 In the event of force majeure, Veenhuis is authorised, without judicial intervention, to suspend the performance of the agreement at its discretion for a maximum of six (6) months or to dissolve the agreement either entirely or in part, without Veenhuis being bound to any compensation for damages with respect to the customer. During the suspension, Veenhuis is authorised - and at the time of its termination, obligated - to elect to execute the full or partial dissolution of the agreement.
13.2 In the event of suspension or dissolution pursuant to that which has been provided for in paragraph 1 of this article, Veenhuis has the right to demand payment forthwith for the raw materials, materials, parts and goods reserved and processed by it in the performance of the agreement, at the value which may reasonably be assigned to these. In the event of dissolution pursuant to that which has been provided for in paragraph 1 of this article, the customer is required to, upon payment of the amount owed as a result of the first sentence of this paragraph, take possession of the items speci-fied in the first sentence of this paragraph, failure of which to do so shall grant Veenhuis the right to store these goods at the expense and risk of the customer, or to sell them at its expense.
13.3 If the customer fails to fulfill one or more of the obligations arising from the agreement concluded with Veenhuis or which arise out of other agreements, or fulfill them properly or in a timely manner, or in the event it is open to doubt whether the customer is capable of fulfilling its contractual obligations towards Veenhuis as well as in the event of bankruptcy, suspension of payments, full or partial halt of trading, liquidation or transfer of the customer's company, including the transfer of an important part of its claims and furthermore in the case of property being seized which belongs to the customer, Veenhuis shall have the right to, without providing notice of default or judicial intervention, either to suspend the performance of each of the agreements entered into with the customer for a maximum of six (6) months, or to dissolve them wholly or in part, without Veenhuis being bound to pay any compensation for damages or by any warranty without prejudice to the rights to which it is entitled. During the suspension, Veenhuis is authorised - and at the time of its termination, obligated - to elect to execute the full or partial dissolution of the agreement.
13.4 In the event of suspension pursuant to that which has been determined in paragraph 3 of this article, the agreed upon price shall be immediately payable, less the previously paid installments and the costs saved by Veenhuis as a result of the suspension, and Veenhuis is authorised to store the raw materials, materials, parts and goods reserved and processed by it in the performance of the agree-ment, all of which shall be at the risk and expense of the customer. In the event of dissolution pursu-ant to that which has been determined in paragraph 3 of this article, the agreed upon price - pro-vided no prior suspension has taken place - shall be immediately payable less the previously paid installments and the costs saved by Veenhuis as a result of the suspension, and the customer shall be bound to pay the described amount and to take possession of the goods included therein, failure of which to do so shall grant Veenhuis the right to store these goods at the expense and risk of the customer, or to sell them at its expense.
13.5 For the purposes of these general terms and conditions, particularly paragraph 1 of this arti-cle, the term force majeure is understood in these conditions to include any and all circumstances beyond Veenhuis' control, even if these were foreseeable at the time this agreement was concluded, which prevent the performance of this agreement either temporarily or permanently including: war, threat of war, civil war, riots, strikes, employee lock-outs, transport difficulties, fire, unsuitable weather for working, revolutions, piracy, natural disasters in general, (epidemic) animal diseases which could have an impact on the operation of business activities at Veenhuis, acts of terrorism, ex-plosions, acts of war, water damage, floods, plant occupation, lock-outs, import and export hin-drances, government measures, defects in machinery, interruptions in the supply of energy as well as material scarcity, all of this occurring within Veenhuis' business as well as that of third parties from whom Veenhuis receives necessary items as well as for storage or during transport, whether or not this is in its own management and furthermore all other causes arising outside of Veenhuis' sphere of influence.
13.6 If and when the customer, regardless the reason, suspends an order as filed in the agreement, then, without judicial intervention, 20% of the agreed upon price shall be immediately payable, all of this at the exclusive judgement of Veenhuis
Article 14 Reservation of title, transfer of claims and right of retention
14.1 After delivery, Veenhuis shall remain the owner of the goods delivered in the event the customer:
14.1.a fails or will fail to fulfill its obligations under this agreement or other similar agreements;
14.1.b has failed or fails to pay for work performed or to be performed arising from these agree-ments;
14.1.c has failed to pay claims which arise from the non-observance of the agreements mentioned above, such as damage, penalties, interest and costs.
14.2 As long as retention of title rests on the goods delivered, the customer may not encumber them out-side of its normal conduct of business.
14.3 After Veenhuis has invoked its retention of title, it may retake possession of the goods delivered. The customer shall allow Veenhuis to enter the premises where these goods are located.
14.4 If Veenhuis is unable to invoke its retention of title because the goods delivered have been mingled, distorted or acquired by accession, the customer is obliged to grant Veenhuis a lien on the newly created goods or to otherwise provide security for that which is still owed to Veenhuis or shall be owed.
14.5 If Veenhuis is no longer able to invoke its retention of title because the goods delivered by Veenhuis have been alienated by the customer, the customer is obliged to, upon first request from Veenhuis, to transfer the claim it holds against that party to whom the customer has sold the goods delivered by Veenhuis. Within this scope, the customer grants an irrevocable power of attorney to Veenhuis to sign the deed of assignment on its behalf. The customer is obliged to allow Veenhuis, upon first re-quest, to inspect its books cum annexis in order to be able to determine to whom the customer has sold the goods delivered by Veenhuis. The payment of the difference of that which the customer owes to Veenhuis with the claim on the third party which has been transferred to Veenhuis shall be executed under suspensive payment condition by the third party to Veenhuis.
14.6 In addition to those cases in which Veenhuis is entitled to a right to retention under the law, Veenhuis is also authorised to keep possession of those goods of the customer's of which it retains possession until all of Veenhuis' claims, regardless of their nature, vis-à-vis the customer have been satisfied.
Article 15 Applicable law and choice of forum
15.1 All of the agreements which have been concluded by Veenhuis as well as any negotiation and other pre-contractual situation in which Veenhuis is involved are subject to the laws of the Netherlands.
15.2 The Vienna Convention on Contracts for the International Sale of Goods (C.I.S.G.) is not applicable between Veenhuis and the customer.
15.3 All of the disputes arising from or related to the agreement concluded between Veenhuis and the customer shall be submitted exclusively to the judicial authority with jurisdiction in Zwolle, unless Veenhuis indicates that it would like to submit the dispute to a different judicial authority.
15.4 If these General Terms and Conditions have been translated into another language, then, in all of the disputes, the Dutch version is leading.