GENERAL TERMS AND CONDITIONS OF DELIVERY of ASBIS EUROPE B.V.
filed with the Chamber of Commerce and Industry for Amsterdam under file no. [33261995]
1. Definities
1.1 ‘Asbis’ refers to Asbis Europe B.V. officially registered in Diemen and having offices at Amsterdam Schiphol Airport, listed in the Chamber of Commerce and Industry under file no. 33261995.
1.2 ‘Products’ refer to the items supplied by Asbis.
1.3 ‘Services’ refer to the services supplied by Asbis.
1.4 ‘Buyer’ refers to the natural or legal person to whom Products and/or Services are supplied by Asbis or with whom Asbis has a supply contract.
1.5 ‘Contract’ refers to the contract between Asbis and the Buyer to supply Products and/or Services.
1.6 ‘Taxes’ refer to all the compulsory contributions and government levies, including VAT, tax levied on the use of property and consumer tax, other comparable taxes and import duties.
1.7 ‘Delivery’ refers to relinquishment to the Buyer or haulier.
2. Applicability
2.1 All offers made by Asbis to supply Products and/or Services, all Contracts to supply Products and/or Services and the execution thereof are subject to these general terms and conditions. Any deviations must be expressly agreed in writing.
2.2 The applicability of the general terms and conditions used by the Buyer are expressly excluded.
2.3 At the moment of concluding a Contract, the Buyer is deemed to have agreed to the exclusive applicability of these general terms and conditions. The same applies to further orders placed by the Buyer with Asbis, whether verbally, by telephone, fax, e-mail or any other means, so that (further) written confirmation by the supplier becomes unnecessary.
3. Offers/Contracts
3.1 All offers made by Asbis are free of obligation and subject to stock availability. An offer is regarded as an invitation to the Buyer to place an order. Asbis expressly reserves the right to alter prices of Products and/or Services.
3.2 Except for the following, a Contract is established if Asbis has accepted an order in writing or if the Buyer has signed and returned a pro forma invoice to Asbis, or Asbis has begun honouring the order and the Buyer has accepted delivery.
3.3 Asbis is entitled to refuse orders or attach certain conditions to the delivery of the Products and/or Services, unless expressly determined otherwise.
3.4 All Contracts are effected under the suspensive condition that Buyer – exclusively at the discretion of Asbis – is sufficiently creditworthy to fulfil the financial obligations of the Contract.
4. Prices / Payments
4.1 The prices of Products and/or Services are listed on the invoices issued by Asbis. Unless otherwise stated Asbis prices are:- stated in euro. If listed in a different currency, any changes in the exchange rate in the period between tender and delivery will be incorporated;
- exclusive of Taxes. The Buyer is liable to pay taxes at all times.
4.2 Unless otherwise stated on the invoice, payment should be made by means of bank transfer or deposit into a bank account indicated by Asbis within 14 days of the invoice date and free of any deductions not mentioned on the invoice. The date on which the money is credited to the Asbis bank account is considered to be the date of payment. Buyer is not authorised to make any deductions or defer payment.
4.3 The Buyer bears all the charges and costs of facilitating the effective payment of the price of the Products and/or Services delivered.
4.4. If the term of payment is exceeded – without any demands or notice of default being required –the Buyer will be liable, as from the due date, to pay interest over the outstanding sum of 1.5% per (part of a) month, including when the parties have agreed to payment in instalments.
4.5 In addition to the outstanding amount, plus the interest referred to in Article 4.4, the Buyer must compensate Asbis for all costs and damages incurred by Asbis as a result of the non-payment or overdue payment by Buyer, including all costs of judicial and extrajudicial measures required to be taken by Asbis against the Buyer due to the failure of Buyer to fulfil his payment obligations. The extrajudicial costs amount to at least 15% of the outstanding amount, plus the interest mentioned above with a minimum of € 150 and are payable due to the sole fact that Buyer has not fulfilled his payment obligation(s).
4.6 If the Buyer is in default and/or Asbis has good grounds to fear that Buyer will not be able to meet his payment obligations on time or at all (for example in the case of bankruptcy or moratorium of payment on the part of the Buyer, seizure of (part of) the capital of Buyer, sale or liquidation of Buyer’s company), then, without being liable to any claims and without prejudice to all further rights due to Asbis, Asbis will be entitled to:
- request advance payment or guarantee;
- totally or partially suspend the execution of the Contract;
- revoke agreed payment instalments, whether or not in other Contracts, whereby all (other) outstanding claims immediately become due and payable;
- suspend its obligations from other Contracts with Buyer;
- remove or have removed any Products which are subject to retention of title from the Buyer or third parties for the account and risk of Buyer;
- dissolve the Contract in writing with immediate effect.
In the event of suspension or dissolution of the Contract, the damage suffered by Asbis as a result of the suspension or dissolution, including lost profit, will become immediately due and payable.
5. Deliveries and returns
5.1 Deliveries to the Buyer take place Carriage and Insurance Paid To (CIP), unless the parties agree otherwise in writing. The risk for Products in all cases is transferred to Buyer at the moment of delivery.
5.2 The Buyer is obliged to take possession of the Products as soon as these are made available to him by Asbis. If, for whatever reason, the Buyer is unable to take possession of the Products, the Buyer will be liable for the resulting (storage) costs.
5.3 Asbis is entitled to deliver Products and/or Services in parts (partial deliveries), which can be invoiced separately. The Buyer is obliged under contract to pay the partial deliveries according to Article 4 of these general terms and conditions.
5.4 Delivery times quoted by Asbis for Products or periods within which agreed Services must have been carried out, are given to the best of their knowledge and will be adhered to as far as possible. However these times are only indicative and do not therefore relate to the term determined for settlement as referred to in Article 6:83 of the Netherlands Civil Code. By exceeding the delivery times, Asbis is not liable to (damage) claims of any kind whatsoever. Failure to meet the delivery times does not entitle Buyer to cancel the Contract or refuse Products and/or Services.
5.5 The Buyer is obliged to inspect Products and/or Services supplied immediately after delivery for deviations from the Contract. If Products and/or Services do not fulfil the quality and/or the quantity requirements and/or are damaged, the Buyer must notify Asbis in writing and stating reasons immediately or at the latest within five (5) working days after date of delivery. Deviations in packaging or weight and/or size of Products should be reported to Asbis in accordance with the first sentence of this article.
5.6 The Buyer is obliged to record/have recorded in the shipping documents the discovery of deviations from the Contract as described in 5.5 and, when returning Products, is obliged to notify Asbis immediately both verbally and in writing. Notification should be detailed and state reasons.
5.7 If there is no detailed record stating the reasons as described under 5.6 within the period described under 5.5, the Products and/or Services will be deemed to have been accepted and approved from the date of transport or shipping.
6. Transfer of ownership/retention of title
6.1 All Products delivered, or to be delivered, by Asbis pursuant to the Contract as well as in the case of claims due to shortcomings in fulfilling Contracts, remain the property of Asbis until payment of all sums owed to Asbis by the Buyer on account of the relevant Contract have been made.
6.2 The Buyer is obliged to treat the items delivered under retention of title with the necessary care as recognised property of Asbis. In the case of seizure of Products which are the property of Asbis, the Buyer is obliged to notify Asbis immediately of the seizure and to inform the person levying seizure that the items have been delivered under retention of title.
6.3 The Buyer is forbidden to sell on any Products of Asbis, other than in the framework of the Buyer’s normal business operations, without prior payment to Asbis of all outstanding invoices. As long as there has been no transfer of ownership of Products to the Buyer, the Buyer may not pledge Products or grant any other rights to them to a third party. The Buyer is obliged, as long as one or more invoices are still outstanding, to guarantee payment for them in the form desired by Asbis at the first request by Asbis.
6.4 If Buyer fails in his payment obligations to Asbis, or Asbis has good grounds to fear that it will fail in the fulfilment of his obligations, Asbis is entitled at all times and without judicial intervention to retrieve Products or gain access to the Products. In order to access the Products, Asbis is entitled at all times to enter the area where the Products are being stored or can reasonably be expected to be stored. The costs of revendication are for the account of the Buyer.
6.5 If the Buyer fails to return the Products, Buyer is immediately liable to pay Asbis a fine of € 1,000 a day.
7. Guarantee and liability
7.1 Asbis gives no guarantees regarding Products and/or Services. The only valid guarantee is any factory guarantee for the relevant Products as indicated on the product packaging, enclosures or RMA Policy from the manufacturer. Asbis will never give the Buyer a more extensive guarantee with regard to the Products.
7.2 The Buyer indemnifies Asbis against all claims from third parties as a result of a guarantee issued by the Buyer and/or information provided by the Buyer to third parties regarding Products which deviate from any guarantee provided by Asbis suppliers and/or information provided by Asbis about the Products.
7.3 Asbis is not liable for any (in)direct damage to the Buyer or third parties, including consequential loss, immaterial loss and loss consequential on business interruption unless and insofar as Asbis is guilty of gross negligence. Neither is Asbis liable, barring wilful acts or gross negligence, for mistakes by its personnel or persons employed by Asbis in the framework of implementing the Contract.
8. Intellectual and Industrial Property Rights
8.1 The Buyer will not violate any intellectual or industrial property rights vested in the Products. The Buyer indemnifies Asbis with regard to claims from third parties in this respect.
9. Force majeure
9.1 Without prejudice to its other rights, Asbis is entitled in the case of force majeure to suspend the implementation of the Contract until the events resulting in force majeure have ended, or to totally or partially dissolve the contract without judicial intervention by means of written notification, without Asbis being liable for any compensation.
9.2 If, at the commencement of a situation of force majeure, Asbis has already partially fulfilled its obligations pursuant to the contract, Asbis is entitled to invoice the Buyer separately for services already performed and the Buyer is obliged to pay this invoice as if it concerned a separate transaction.<
9.3 ‘Force majeure’ here means any shortcoming which cannot be attributed to Asbis because it is beyond the control of Asbis and Asbis cannot be held accountable for it by virtue of the law, legal act or generally accepted practice.
10. Applicable law and agreed forum.
10.1 These general terms and conditions and the Contracts are subject to Dutch law.
10.2 All disputes related to these general terms and conditions, Contracts or an offer to enter into a Contract will initially be submitted to the competent court in Haarlem.
11. Other provisions
11.1 Asbis is entitled at all times to amend and/or supplement these conditions. Amendments and/or supplements will be effected after the Buyer has been duly informed and have no retrospective effect.
11.2 If separate provisions included in these general terms and conditions lose their effect totally or partially, this will not affect the validity of the other provisions of these general terms and conditions and the parties are obliged to determine a new provision as soon as possible, whose purport corresponds as much as possible to the ‘old’ one.
11.3 If these general terms and conditions are agreed in a different language than Dutch, then the text and meaning of the Dutch terms and conditions will nevertheless be decisive.