GENERAL CONDITIONS OF SALE AND DELIVERY HANDELSONDERNEMING REVAHO B.V.
1. Definitions
1.1. In these general conditions ("Conditions") the following terms shall have the following meanings:
- Revaho: Handelsonderneming Revaho B.V., established at Maasland, as well as its legal successors by universal or particular title;
- Client: any individual or legal entity by order of whom Revaho supplies Products and/or for whom Revaho performs Services and/or with whom Revaho discusses or negotiates entering into an Agreement;
- Products: any and all goods, including documentation, drawings, testing equipment and any (other) results of Services performed by Revaho which may be the subject of an agreement;
- Services: any and all activities in any form whatsoever and however called (services, contracting, deploying, etc.) which Revaho performs for or on behalf of Client;
- Agreement: any Agreement entered into between Revaho and Client, any amendment or addition to such Agreement, as well as any and all (legal) acts in preparation or performance of such Agreement;
- Order: any Order from Client in any form whatsoever.
2. Applicability
2.1. Except to the extent that, also in view of the nature of the performances agreed upon or to be agreed upon, any other General Conditions of Revaho are applicable (e.g. the General Purchase, Order and Tendering Conditions), these Conditions shall form part of any and all Agreements and shall apply to any and all (other) acts and legal acts between Revaho and Client, even if such acts should not lead to or relate to any Agreement.
2.2. The applicability of any general conditions of Client is explicitly rejected by Revaho.
2.3. Revaho's General Purchase, Order and Tendering Conditions shall (also) apply to any (legal) acts by Revaho and its (potential) counterparties with respect to Agreements or negotiations on Agreements, whereby Revaho acts in whole or part as buyer of goods, client (e.g. with respect to Services) and/or tenderer. These General Purchase, Order and Tendering Conditions have been filed with the Chamber of Commerce in The Hague under number 24196434 and shall be provided to Client, at Client's first request, at no charge.
3. Offers, entering into Agreements and quotations and indications of Products and Services
3.1. Revaho's offers or quotations shall be non-binding and shall constitute only an invitation to Client to place an Order.
3.2. An agreement shall come into existence only if and to the extent that Revaho accepts an Order from Client in writing or if and to the extent that Revaho performs pursuant to an Order, unless Client demonstrates with other means that Revaho has fully and unconditionally accepted Client's Order. In the event that Revaho, on request, performs any activity before full agreement is reached on pricing and payment conditions for such performance, Client shall pay Revaho for such performance pursuant to the provisions of Articles 6 and 7 at Revaho's then current fees. To the extent that, contrary to the provisions of the first sentence of this paragraph, an offer from Revaho is binding and Client accepts such offer with minor deviations, such deviations shall not form part of the Agreement entered into between Client and Revaho, and an agreement shall be formed consistent with Revaho's offer.
3.3. Any quotations by Revaho of amounts, measurements, weights and/or other indications of the Products and/or Services will be carefully made. Revaho can not guarantee, however, that no deviations shall occur. Samples, drawings or models shown or provided shall be indications of the relevant Products and/or Services only. In the event that Client demonstrates that the Products delivered and/or Services performed deviate from Revaho's quotations or from samples, drawings or models in such a manner that Client cannot reasonably be obligated to accept such Products or Services, Client shall have the right to rescind the Agreement, but only to the extent that such rescission is reasonably necessary.
4. Agency and distribution agreements
4.1. Client shall not be an agent or a distributor of Revaho, unless it is explicitly appointed pursuant to a written agency and/or distribution agreement.
4.2. Any agency and/or distribution agreement shall be non-exclusive, except to the extent that it is explicitly provided that the relationship is in whole or part exclusive.
4.3. The discount or commission which Client receives as a distributor or agent includes at all times compensation for acquiring a new customer or increasing Revaho's goodwill. Upon termination of the agency and/or distribution agreement, Revaho shall not be obligated to pay any compensation (for damages, goodwill or customers), except to the extent that such compensation is due pursuant to applicable mandatory law.
5. Amendments and additions
5.1. Amendments and additions to any provision in any Agreement and/or the Conditions may be made only in writing.
5.2. In the event that any amendment and/or addition as referred to in paragraph 1 shall be agreed upon, such amendment or addition shall be valid only for the relevant Agreement.
6. Prices
6.1. All prices of Revaho are expressed in euros, exclusive of V.A.T., unless stated otherwise. Unless stated otherwise in Revaho's brochures, price lists or other promotional material or unless explicitly agreed otherwise, costs of special forms of packing and shipment (including shipment to more than one address), import duties, export duties and excise taxes, travel and accommodation expenses related to the performance of Services, as well as any (other) levies or taxes imposed with respect to any performance shall be separately charged to Client.
6.2. Any change in the factors affecting the price and the additional costs referred to in paragraph 1, including purchase prices, exchange rates, duties and other levies imposed on import and export, insurance premiums, freight and other levies or taxes, may be charged by Revaho to Client. Client shall have the right to rescind the Agreement only to the extent that such charges are incurred within three months after acceptance of the Order by Revaho and provided that Client can claim rescission based on Article 6:235 of the Dutch Civil Code.
6.3. Client shall indemnify Revaho against any and all costs and damages which may result from the fact that:
- Client is not properly registered for purposes of value added tax or a similar tax in any relevant EC member state; and/or
- Client provides incorrect or untimely information to Revaho and/or the tax authorities in the field of value added tax or a similar tax in any relevant EC member state.
7. Payment
7.1. In the event of delivery of Products, Client shall pay to Revaho at the time of delivery of such Products, the amounts charged, in the currency stated in the invoice, unless agreed otherwise in writing. In the event of performance of Services, Client shall pay to Revaho the amounts due, in the currency stated in the invoice, within 30 days after date of invoice. Any payments shall, at Revaho's option, be made at Revaho's office or into a bank or giro account as directed by Revaho. In the event of payment at Revaho's office, payment shall be made in cash or in guaranteed bank or giro cheques, unless agreed otherwise.
7.2. Any objections to invoices, specifications, descriptions and prices must be made to Revaho in writing within 10 days after date of invoice. In the event that this is not possible due to circumstances beyond Client's control, Client shall notify Revaho in writing of its objections in any event as soon as possible.
7.3. Any amounts charged to Client shall be paid without any discount or withholding.
7.4. Client shall not have the right to set off any claim it may have against Revaho against a claim of Revaho, unless such set-off is permitted on the basis of a final judgment in court or arbitration.
7.5. Client shall not have the right to suspend its obligations, unless Client submits the dispute to a competent court pursuant to Article 21.4 within 30 days after such obligations become due.
7.6. In the event that Revaho at any time develops reasonable doubts as to Client's credit-worthiness and/or if Revaho considers desirable and/or in the event that Client repeatedly does not pay correctly or on a timely basis and Client has been reminded at least once by Revaho, Revaho shall have the right to demand that Client pay the purchase price of the Products and/or compensation for the Services in advance, prior to any further performance, even under existing Agreements or that Client provide satisfactory security in the amount of Revaho's claim against Client under the Agreement, which security includes customary cash on delivery, documentary credit such as an irrevocable letter of credit confirmed by a first class bank, cash against documents or cash against delivery.
7.7. In the event that it is agreed that payment shall be made and/or in the event that security shall be provided by means of documentary credit and/or a bank guarantee, Client shall do so at all times through a bank of good repute.
7.8. In the event any payment has not been made by the last day of the payment term, Client shall be obligated to pay interest equal to the then current Dutch legal interest as referred to in Article 6:119 a of the Dutch Civil Code as of such day without any notice of default being required. At the end of each month, the amount over which such interest is calculated shall be increased with the amount of interest due for the previous month.
7.9. In the event that Client fails to pay the amount due including interest, after having received a registered letter in which a further term for payment has been granted, Client shall be obligated to compensate Revaho for any costs, both in and out of court, including reasonable costs of legal assistance, both in or out of court.
7.10. In the event that Revaho, out of courtesy or otherwise, grants Client an extension of time for the performance of any obligation, such extension shall at all times be final.
8. Term of delivery
8.1. The term for delivery of Products or performance of Services indicated by Revaho shall be without engagement and based upon circumstances affecting Revaho at the time of entering in the Agreement as well as to the extent that such term is dependent on performances by third parties, on information given to Revaho by such third parties. The delivery and/or performance term shall be complied with by Revaho as best as possible.
8.2. Terms of delivery or performance commence as of the date of written acceptance of the Order by Revaho. In the event that the performance of the Agreement by Revaho requires any data or resources to be provided by Client, the terms of delivery or performance shall take effect as of the date on which all necessary data and resources have been provided to Revaho, but in any event no earlier than the date of written acceptance of the Order.
8.3. In the event that any term is exceeded, Client shall have no right to damages with respect thereto, nor any right to rescind or terminate the Agreement, unless the term is exceeded to such an extent that Client cannot reasonably be bound to (the relevant part of) the Agreement. Client shall in such event have the right, after written notice of default in which a reasonable further term for performance has been granted but not complied with, to rescind or terminate the Agreement by registered letter, but only to the extent that such is absolutely necessary.
8.4. Revaho shall at all times have the right to make partial deliveries of the Products.
9. Delivery and risk
9.1. Delivery of the Products, including the costs of delivery and the passing of the risk of loss or damage shall take place, if the offer or the Order confirmation so provides, in accordance with customary conditions of trade, such as freight pre-paid, f.o.b., c.i.f. and c.f. and in any such event the Incoterms of the International Chamber of Commerce in Paris shall be applicable.
9.2. In the event that the conditions referred to in paragraph 1 have not been agreed upon, delivery and the passing of risk of the Products and their packing shall at all times take place at the location and the moment on which the Products are ready for shipment to Client. Revaho shall notify Client as soon as possible of such time and location and Client shall take possession of the Products as soon as possible, but in no event later than 30 days after notification.
9.3. Client shall ensure on its part that nothing shall interfere with conforming to agreed-upon terms, including terms of delivery, taking possession and installation.
9.4. Should Client fail to take timely possession of the Products without a valid ground therefor, Client shall be in default, without any notice of default being required. Revaho shall in such event have the right to store the Products at Client's expense and risk or sell the Products to a third party. Client shall in such event still be obligated to pay the purchase sum, increased by interest and costs as a compensation of damages, minus the net sales price paid by a third party if the Products are sold to a third party.
10. Force majeure
10.1. In the event that Revaho cannot meet its obligations to Client due to circumstances beyond its control ("force majeure"), such obligations shall be suspended for the duration of the force majeure.
10.2. In the event that the circumstances constituting force majeure have continued for three months, either party shall have the right to rescind the Agreement in writing, in whole or in part.
10.3. Force majeure on the side of Revaho shall mean any circumstances beyond Revaho's control which obstruct, delay or make performance of (the relevant part of) its obligations to Client uneconomical or under which performance of such obligations cannot reasonably be required.
10.4. Parties shall advise each other in writing as soon as possible of (possible) force majeure circumstances.
11. Retention of title
11.1. Notwithstanding actual delivery, title to the Products shall pass to Client only after Client has paid in full any amounts due to Revaho with respect to deliveries made pursuant to the Agreement or Products to be delivered, including the purchase sum, any surcharges, interest, taxes and costs arising out of these Conditions or the Agreement and any activities performed or to be performed pursuant to such Agreement.
11.2. Any amounts received from Client shall be applied in the first instance to payment of claims which Revaho may have against Client which are not covered by the retention of title set forth in paragraph 1. Any further amount received from Client shall be applied in the first instance to payment of compensation of any interest and costs due pursuant to Article 7, paragraph 9.
11.3. Prior to Client obtaining title to the Products, Client shall not have the right to lease the Products to third parties, nor to have third parties use the Products, nor to pledge the Products to third parties nor to vest any other third party rights in the Products. Client shall have the right to sell or deliver the Products, to which Revaho retains title to third parties, only to the extent that such sale is necessary within the scope of Client's normal business.
11.4. Client is obligated to store the Products delivered subject to a retention of title carefully and recognizably identified as property of Revaho, and to insure such Products against risks such as fire, explosion, damage and theft. At Revaho's first request, Client shall assign all its rights under such insurances with respect to such Products to Revaho.
11.5. If and to the extent that the Products are owned by Revaho, Client shall immediately inform Revaho in writing of any loss of or damage to any part of the Products, or if (any part of) the Products are attached or otherwise claimed. Furthermore, Client shall inform Revaho at its first request of the location of the Products to which Revaho retains title.
11.6. In the event of attachment, a (temporary) moratorium on payment, or bankruptcy, Client shall immediately inform the attaching official, the conservator or trustee in bankruptcy of Revaho's rights (of ownership).
12. Intellectual property
12.1. Revaho confirms that, to the best of its knowledge the Products do not infringe any intellectual property rights of any third party in The Netherlands. Revaho cannot, however, indemnify Client against any infringements on any intellectual property rights of third parties.
12.2. In the event that Revaho manufactures or has Products manufactured on behalf of Client based on a design other than Revaho's own design, Client shall indemnify and hold Revaho harmless against any infringement with respect to (the manufacturing and use of) the Products on any intellectual property rights of third parties.
12.3. Client warrants that it shall not infringe any intellectual property rights of Revaho or its suppliers with respect to the Products (and that it shall not allow or enable third parties to do so), e.g. by copying, processing or imitating the Products.
12.4. The Agreement contains no transfer of any intellectual property rights within the framework of goods delivered to Client or services rendered to Client and any relevant documents.
13. Inspection and claims
13.1. Client shall thoroughly inspect the Products or have them inspected immediately after their arrival at the place of delivery or after receipt by Client or any third party on behalf of Client, whichever is earlier. Any claims for defects in the materials or manufacturing of the Products, as well as deviations from the description given in the Order confirmation and/or the invoice in quantity, weight, composition or quality of the Products, must be notified to Revaho in writing within 8 days after delivery of the Products. Defects which cannot reasonably have been discovered within the term set above, shall be notified to Revaho in writing immediately after they have been established and in any event no later than 30 days after delivery of the Products.
13.2. Upon the discovery of any defect, Client is obligated immediately to cease use, processing, manufacturing or installation of the relevant Products.
13.3. Client shall cooperate with Revaho in any manner required for the investigation of the claim, including by permitting Revaho to make or have an investigation made on site into the circumstances of processing, manufacturing, installation and/or use.
13.4. Client shall not have any right to claim defects in Products with respect to which Revaho is not able to perform such investigation.
13.5. Client shall not have the right to return the Products until Revaho has agreed thereto in writing. The costs of such return shall be for Client's account and the risk of damage to or loss of the Products shall remain with Client.
13.6. Client shall have the right to rescind the entire Agreement because of defects in one lot of Products which forms part of a delivery of more than one lot, only in the event that Client can no longer reasonably be bound to the remainder of the Agreement.
13.7. Client shall not have the right to make any claim against Revaho with respect to defects in the Products as long as Client has not met any directly related obligation vis-à-vis Revaho.
13.8. In the event that Client submits a claim with respect to defects in any Product timely, correctly and on valid grounds, Revaho's resulting liability shall be limited as set forth in Article 14, paragraph 1, taking into account the other provisions of Article 14 as required by the nature of the claim.
13.9. The Client’s rights of action against Revaho with respect to the delivery of Products and performance of Services shall expire 12 months after delivery of the Products or performance of the Services by Revaho, unless explicitly stipulated otherwise in writing.
14. Guarantee
14.1. In the event that a claim has been submitted timely, correctly and in accordance with the provisions of Article 13 and, in Revaho's opinion, it has been satisfactorily demonstrated that the Products do not function properly, Revaho shall, at its option, either deliver new Products to replace the defective Products at no charge upon return of the defective Products, or to repair the relevant Products properly, or grant Client a discount on the purchase price to be mutually agreed upon. By complying with one of the foregoing, Revaho shall be fully discharged of its warranty obligations and it shall not be obligated to pay any (further) damages.
14.2. In the event that Revaho delivers to Client Products which Revaho has obtained from its suppliers, Revaho shall in no event be bound to any warranty or liability vis-à-vis Client more extensive than that which Revaho may claim from its suppliers.
14.3. Revaho explicitly does not warrant any recommendation or advice to Client with respect to installation or use of the Products, nor for any such advice or instructions from Client to its buyers.
14.4. The risk of damage to or loss of the Products remains fully with Client in the event that any repairs are made by Revaho to the Products, unless such repairs are the result of a defective performance by Revaho and Client cannot reasonably be expected to insure the Products against the aforementioned risk.
15. Liability and indemnification
15.1. Revaho shall in no event be liable for any indirect damages of Client or any third party, including consequential damage (e.g. not being able to cultivate the soil timely, deterioration of the structure of the soil, damage to vegetation, loss of profit, lower yields etc.), non-material damages, trading loss or environmental damage.
15.2. Revaho's liability to Client on any ground whatsoever shall be limited per event to the relevant contract price (exclusive of V.A.T.), whereby a sequence of events shall be deemed to be one event. In the event that no contractual sum can be established, Revaho's liability shall be limited to the amount received by it from its business liability insurance.
15.3. The limitations on liability in paragraphs 1 and 2 shall not apply to the extent that the relevant damages are caused by willful misconduct or gross negligence on the part of Revaho or its executive personnel or to the extent that Revaho's liability arises out of applicable mandatory product liability laws.
15.4. Except in the event of willful misconduct or gross negligence on the part of Revaho or its executive personnel, Client shall indemnify and hold Revaho harmless against any claims of third parties on any ground whatsoever with respect to damage suffered or costs incurred by Revaho on account of such a claim.
15.5. Client shall take out adequate insurance against any claims from third parties and shall, in its contractual relationship with its buyers, be obligated to exclude any liability of Revaho towards such buyers.
16. Other obligations and responsibilities of Client
16.1. Client shall at all times timely provide to Revaho any data necessary for the performance of Revaho's activities and shall warrant the correctness and completeness thereof.
16.2. Client shall not remove or render invisible in whole or part, any trademark or other identifying marks on the Products.
17. Rescission
17.1. In the event that Client is granted a (temporary) moratorium on payment of its debts, is declared bankrupt or in the event that Client ceases its activities or if Client's company goes into liquidation, all Agreements entered into with Client shall be dissolved by operation of law, unless Revaho notifies Client within a reasonable period of time (where appropriate at the request of the conservator or the trustee) that it requires performance of (part of) the relevant Agreement(s), in which event Revaho shall be entitled, without any notice of default being required
- to suspend performance of the relevant Agreement(s) until payment has been satisfactorily secured, and/or
- to suspend any obligations vis-à-vis Client, such without prejudice to Revaho's other rights pursuant to any Agreement entered into with Client whatsoever and without any obligation of Revaho to pay damages.
17.2. In the event that Client fails properly, timely or otherwise to meet any obligation resulting out of any Agreement, Client shall be in default and Revaho shall have the right, without any notice of default or judicial intervention being required
- to suspend performance of such Agreement and any directly related Agreements until payment has been satisfactorily secured, and/or
- to rescind such Agreement and any directly related Agreements in whole or part, such without prejudice to Revaho's other rights under any Agreement entered into with Client whatsoever and without any obligation of Revaho to pay damages.
17.3. In any event as referred to in paragraphs 1 or 2 respectively, all claims which Revaho may have against Client and the claims arising out of the relevant Agreement(s) shall be immediately due and payable in full and Revaho shall have the right to repossess the relevant Products. In such event Revaho and its attorney(s) shall have the right to enter the premises and buildings of Client in order to repossess the Products. Client shall be obligated to take the necessary measures to permit Revaho to exercise its rights.
17.4. Except in the event of purchases by consumers, the applicability of Article 6:278 of the Dutch Civil Code is explicitly excluded in the event that Revaho rescinds or otherwise takes steps toward rescission, as referred to in Article 6:278 paragraph 2 of the Dutch Civil Code, of any Agreement entered into with Client.
18. Transfer of rights and obligations
18.1. Revaho shall have the right to transfer any rights and obligations under any Agreement entered into with Client to any third party. In the event that obligations of Revaho are being transferred, Revaho shall notify Client thereof in advance and Client shall have the right to rescind the Agreement. Revaho shall not be obligated to pay any damages.
18.2. Client shall not have the right to transfer its rights and/or obligations under any Agreement to any third party without the prior written consent of Revaho.
19. Exercise of suspension, rescission and nullification rights by Revaho
19.1. In the event that Revaho, based on the circumstances known to it or which should have been known to it at that time, reasonably is of the opinion that it can lawfully exercise any right to suspend, rescind or nullify, Revaho shall not be liable to pay legal interest, in the event that it is later established that Revaho could not lawfully exercise such rights.
20. Services
20.1. This article contains specific provisions for Services to be performed by Revaho on behalf of Client. To the extent that they conflict, the provisions of this article shall prevail over the other provisions in these General Conditions of Sale and Delivery.
20.2. Revaho warrants that:
a. any Services to be performed by it or on behalf of it shall be performed in a skilled manner;
b. for the duration of the Agreement any persons to be engaged by Revaho in the execution of the Agreement shall comply with any qualifications as to training, skill and experience, which may subsequently be agreed upon.
20.3. Client shall give Revaho timely access to and provide to Revaho any means and facilities necessary at no charge, whenever the agreed-upon Services so require.
20.4. In the event that it appears that the Services cannot be performed, in whole or in part, due to the fact that Client does not meet any obligation vis-à-vis Revaho or for other reasons attributable to Client, Client shall compensate Revaho for any costs incurred at Revaho's then-current fees.
20.5. In the event that the price shall be established on a time and materials basis, all hours spent by Revaho in the performance of the Services, including travel hours, may be charged, along with costs of materials and any other costs reasonably incurred by Revaho in the performance of the Services. In such event Revaho shall specify the hours and costs in the relevant invoice.
20.6. Unless provided otherwise, the contract price shall be invoiced in accordance with the following schedule:
- 30% at entering into the Agreement;
- 50% at commencement of the contractual work;
- 20% at first completion of the results of the contractual work or at earlier use thereof.
20.7. In the event that Client wishes any additions or amendments to the agreed-upon contractual activities to be performed by Revaho pursuant to the Agreement and if Revaho is of the opinion that the level of these activities shall be increased or extended, such shall constitute additional work which - considering the provisions of the following paragraph - shall be separately charged to Client, even if a fixed price had been agreed upon between parties.
20.8. In the event that Revaho is of the opinion that there is additional work, it shall notify Client thereof as soon as possible and inform Client on the consequences thereof for the price and the term within which Revaho could perform all its other activities under the Agreement. Client shall be deemed to have agreed to performance of additional work and any costs and consequences related thereto, unless it objects thereto in writing within eight days after notice by Revaho. Revaho may suspend commencement of the performance of additional work until Client gives Revaho a written order thereto.
20.9. Client shall, whenever the agreed-upon activities require so, give Revaho timely access to and provide to Revaho any means and facilities necessary at no charge.
21. Applicable law, obligation of information and competent court
21.1. These Conditions, as well as any and all Agreements shall be governed by Dutch law. With respect to Agreements as referred to in Article 6:247 paragraph 2 of the Dutch Civil Code it is, however, explicitly provided that section 3, title 5 of Book 6 of the Dutch Civil Code shall not apply.
21.2. Third parties shall not become party to any Agreement between Revaho and Client based on an implied or explicit third party beneficiary provision ("derdenbeding") in these Conditions or the Agreement. Article 6:254 paragraph 1 of the Dutch Civil Code does thus not apply.
21.3. In the event that these Conditions apply to an international relation with Client, Client shall at all times immediately inform Revaho of any provisions in these Conditions which are not enforceable in the country where Client is established. Provided that Revaho agrees thereto in advance, Revaho shall in such event bear the reasonable costs for any necessary external legal investigation with respect thereto. To the extent that Client fails to meet the obligation in the first sentence of this paragraph, it shall not claim the possible unenforceability of such provisions in or out of court, and shall indemnify and hold Revaho harmless against any damages arising, unless Revaho has refused to pay the reasonable costs of legal investigation as referred to above.
21.4. To the extent not otherwise required by any applicable mandatory national or international legislation, any and all disputes arising between parties shall, at the option of the summoning or requesting party, be brought before the competent judge of the District Court of The Hague, or the court otherwise competent based on national or international legislation.
21.5. The applicability of the following treaties, conventions and laws is explicitly excluded:
- the Uniform Law on Formation of Contracts for the International Sale of Goods dated 1 July 1964;
- the Uniform Law on International Sale of Goods dated 1 July 1964;
- all (uniform) legislation based on these treaties in any country; and
- the Vienna Convention on International Sale of Goods 1980 (CISG).
These General Conditions have been filed with the Chamber of Commerce in The Hague, The Netherlands, under number 24196434 and shall be sent to Client at its first request at no charge.
