1.1 These general terms and conditions of sale and delivery apply to all proposals made, agreements entered into with, and products delivered and services provided by the private limited company incorporated under the laws
of the Netherlands Polskamp B.V., hereinafter to be referred to as: “Polskamp”.
1.2 Any purchasing and/or other general conditions as used by the purchaser, i.e. the contracting party of Polskamp, do not apply. The provisions set out in these general terms and conditions can only be derogated from by Polskamp expressly and in writing, or with the written consent of Polskamp. Derogating provisions shall exclusively apply to the agreement for which the derogative clauses were devised. Otherwise the following terms and conditions shall remain in full force.
1.3 All proposals made by Polskamp are offered without obligation, unless stipulated otherwise in writing. All agreements between Polskamp and the purchaser shall only be binding and shall only take effect if they have been accepted by Polskamp.
1.4 Changes to an agreement that already took effect can only be made as soon as and insofar as Polskamp has confirmed these in writing.
1.5 These general terms and conditions have been drawn up in the Dutch and English language. In the event of a dispute about the contents or intention of these general terms and conditions, only the Dutch version and its interpretation under Dutch law are binding.
2.1 Price quotations made by Polskamp as well as prices agreed with Polskamp are exclusive of VAT and they are based on the cost price factors at the time the agreement was entered into. Unless agreed otherwise all price quotations are made subject to price changes.
2.2 Should there be a price increase where one or more of the cost price factors are concerned, e.g. as a result of increased rights and/or taxes, factory prices, currency changes and so on, Polskamp will have the right to pass on the increase to the purchaser and to increase the order price accordingly.
3.1 The delivery times stated are merely an indication and can never be considered as a firm time, unless it was expressly agreed otherwise. A delivery time will only start from the moment on which the last condition as set out in the order confirmation has been fulfilled.
3.2 Exceeding the delivery terms, whatever the cause may be, does not entitle the purchaser to any damages nor may the purchaser terminate the agreement nor does it give the purchaser the right to not comply with any of its obligations under the agreement on hand or any other agreement between parties. 3.3. Unless expressly agreed otherwise the delivery will always be EX WORKS. Therefore, the items sold, as soon as they have left the factory of Polskamp, are at the risk and expense of the purchaser, irrespective of who has arranged for the transportation and the means of transport and the itinerary chosen.
3.3 Tenzij uitdrukkelijk anders overeengekomen geschiedt levering te allen tijde AF FABRIEK. Zodra de verkochte zaken derhalve Polskamp hebben verlaten, geschiedt zulks voor rekening en risico van koper, onverschillig wie voor het vervoer zorg draagt en welk middel van vervoer en welke reisroute wordt gekozen.
3.4 If the purchaser remains in default, for whatever reason, to take delivery of the items and these are ready for dispatch, Polskamp will have the right, at its own discretion, to either dissolve the agreement entirely or in part or to deliver the goods at the risk and the expense of the purchaser, or to store or have stored the goods at the risk and the expense of the purchaser either entirely or in part and to pass on the resulting costs to the purchaser or to claim damages. If the goods are stored, either entirely or in part, at the risk and the expense of the purchaser, Polskamp, three weeks after the goods were stored, will still have the right to dissolve the agreement either entirely or in part, or to claim damages.
4.1 Complaints are defined as any grievances and complaints the purchaser may have as to the amount, the quality, damage to and/or the packaging of the items purchased.
4.2 Polskamp shall only accept and handle complaints if these have been filed in writing within 24 hours after the delivery or making available of the goods to the purchaser.
4.3 If Polskamp considers the complaints filed in compliance with the provision made in 4.2, Polskamp will have a choice of either substituting the faulty items at its expense, or to credit the purchaser for an amount that equals the price the purchaser paid for the items on hand. In either case the purchaser must, however, return the faulty items to Polskamp, only after Polskamp’s prior consent. Polskamp does not have to pay any additional damages other than the provisions made in this article.
4.4 The purchaser must check the items delivered by Polskamp immediately after delivery in terms of amount, nature and quality. Complaints as to faults that could have easily been detected by simple sampling must be filed with Polskamp in writing within three days after their discovery.
4.5 Exceeding the terms stipulated in articles 4.2 and 4.4 will result in the lapse of the right to complain.
4.6 No complaint shall ever entitle the purchaser to suspend payment of the purchase price or additional costs either entirely or in part, while any reference to a discount and/or compensation is expressly excluded. If and insofar as the purchaser has a valid complaint on which it can base a claim for reimbursement of the purchase price, said claim on Polskamp can never be settled with a debt owed to Polskamp based on transactions that the claim does not pertain to.
5.1 Force majeure is defined as any nonattributable failure, including any event as a result of which compliance with the agreement by Polskamp becomes so awkward or costly, relative to its prospects at the time the agreement was first entered into, that such compliance in all fairness can no longer be demanded.
5.2 Force majeure on the part of Polskamp at least pertains to yet is not limited to the event that Polskamp, after entering into the agreement, is prevented from complying with the obligations under said agreement or the preparations thereof in the event of war, war risk, fire, water damages, floods, frost, a strike, a plant occupation, road blocks, vehicle defects, impediments for import and export, defects to machines, impaired power supply,
production difficulties or stagnation either at Polskamp or at a company from which Polskamp purchases the raw materials and auxiliary materials, veterinary contaminations and/or epidemics and also all other causes that arise beyond the culpability or risk of Polskamp. Polskamp will notify the purchaser of such an event of force majeure in writing.
5.3 In the event of force majeure Polskamp has the right to terminate the agreement. If so desired, Polskamp has the right to suspend the fulfilment of the agreement rather than dissolve it, until the circumstances causing the force majeure have come to an end.
5.4 Polskamp shall not be liable for any damages that result from the dissolution or suspension due to force majeure, including any loss of profit.
6.1 All delivered goods remain exclusively owned by Polskamp until the moment when the purchaser has fulfilled all obligations arising out of or linked to agreements requiring Polskamp to deliver, including fines, interest rates and costs, including costs due to loss of value and / or withdrawal of delivered goods, and until all other claims by Polskamp on purchaser for which Polskamp is entitled under the terms of Article 3:92 of the Dutch Civil Code to be entitled to the title of ownership. Until that time, the purchaser is held to separate the goods delivered by Polskamp from other items and clearly identified and individually recognizable as the property of Polskamp and to ensure that these goods are properly insured and keep those goods insured and send Polskamp at first request a copy of the insurance policy for inspection, and, furthermore, ensure that those goods are not to be processed. If purchaser does not separate the goods delivered by Polskamp and identifiable and individually recognizable as the property of Polskamp, then all goods present at purchaser of the same kind as the goods delivered by Polskamp are presumed to belong to Polskamp.
6.2 As long as the purchaser has not acquired title of the items purchased, it may in no way dispose of the items, pledge rights as to the items or encumber them in any other way than in the normal course of its business. If the purchaser, in the normal course of its business, will proceed with the selling and/or delivering of said items, Polskamp, as long as the purchaser has not fulfilled all its payment obligations towards Polskamp, under whatever title, has the right to claim that any proceeds from such sales by the purchaser to its customers shall be transferred to Polskamp.
6.3 If the purchaser fails to meet its payment obligations, Polskamp has the right to claim the goods delivered as its property both from the purchaser and from any third party after reselling, without prejudice to its entitlement to compensation in view of damages suffered.
6.4 If the purchaser processes items delivered that are not yet paid for and/or has them processed at its own expense, Polskamp will still remain the owner of the processed items, even if after the processing the nature of the product has changed.
6.5 Polskamp provides to purchaser at the time that purchaser has fulfilled all of its obligations arising out of or linked to agreements requiring Polskamp goods to deliver, the ownership of the goods delivered under the preservation of a right of pledge of Polskamp, partly for the purpose of other claims, for any reason, which Polskamp has on purchaser. Purchaser hereby establishes a first right of pledge on behalf of Polskamp on the goods delivered subject to retention of title, which right of pledge Polskamp hereby accepts. Purchaser declares to be authorized to pledge the aforementioned goods and that these goods are free from encumbrances.
7.1 If Polskamp makes packaging and transportation materials available for the delivery of goods, where packaging and transportation materials means: all of the transportation materials, pallets, crates, bins and/or return packaging of Polskamp for the purpose of packaging goods and/or transporting goods to the purchaser, the purchaser will return these packaging and transportation materials to Polskamp within the customary term of the relevant goods but in any event within a term of 14 days after the date of delivery. Polskamp has the right to charge a reasonable deposit fee and/or usage fee for the packaging and transportation materials it has made available. Polskamp will always remain the owner of the packaging and transportation materials it has made available.
7.2 Without the written consent of Polskamp the purchaser is not allowed to use the packaging and transportation materials for its own purposes, nor allow third parties to use the packaging and transportation materials for their own purposes.
7.3 If Polskamp sends the purchaser an overview of the packaging and transportation materials that are in the possession of the purchaser according to the records of Polskamp, the purchaser will be obliged to notify Polskamp of any inaccuracy in the overview drawn up by Polskamp within 14 days after the date stated on the overview, failing which the purchaser will be bound towards Polskamp by the overview provided by Polskamp.
7.4 Polskamp will have the right to charge repair costs to the purchaser if the packaging and transportation materials are damaged before, during or after delivery of the goods. If Polskamp considers that the packaging and transportation materials are damaged beyond repair or lost, Polskamp will have the right to claim the replacement of the packaging and transportation materials. “Loss” of the packaging and transportation materials also include the situation in which the packaging and transportation materials have not been returned to Polskamp within 30 days after the date of the invoice of the relevant delivery.
8.1 The purchaser is obliged to pay the purchase price at the agreed time.
8.2 Polskamp shall at all times have the right to suspend fulfilment of its obligations until such time that the purchaser at the request and to the satisfaction of Polskamp has provided security regarding the fulfilment of all its obligations under the relevant agreement. If the purchaser fails to provide such security or only does so in part or does not provide it in a timely manner, this shall be considered as an attributable failure in the performance of the agreement with Polskamp.
8.3 The purchaser does not have the right to suspend payment, for whatever reason. Settlement or setting off debts is also not allowed.
8.4 If the purchaser does not fulfil its payment obligations in time it will be in default de jure. In such an event Polskamp has the right to charge statutory default interest as of the date the purchaser is in default, which equals the statutory trade interest plus 1% over the invoiced amount or the proportion of the invoiced amount still to be paid. Furthermore, in case of overdue payment, Polskamp has the right to pass on all justifiable costs of measures taken by Polskamp, both legal and non-legal, (at its own discretion) to make the purchaser pay the amounts due, to a maximum of 15% of the main sum to be paid by the purchaser, however with a minimum of € 250, exclusive of VAT.
9.1 Without prejudice to the provisions as set out elsewhere in these terms and conditions, the claims Polskamp has on the purchaser are claimable on demand as soon as the purchaser has been declared bankrupt, has applied for a moratorium on payments, or as soon as its property has been attached and/or the purchaser loses the free management and free disposal of its property either entirely or in part. Furthermore, Polskamp in such
circumstances has the right to dissolve the agreement. Upon dissolution of the agreement the purchaser shall be liable for damages suffered by Polskamp, including any damages resulting from loss of profit or costs of transportation.
9.2 Any dissolution, whatever the reason, will thus always result in the amounts due being claimable by Polskamp.
10.1 With the exception of gross negligence, Polskamp can never be held liable for any damages, direct or indirect, to individuals, goods or companies of the purchaser and/or any third parties.
10.2 If Polskamp is held liable, such liability shall be limited to the amount covered by the insurance as taken out by Polskamp for such an event. If said insurance, for whatever reason, will not pay or if the damages in a particular event are not covered by said insurance, Polskamp’s liability shall be limited to the amount equal to the invoiced amount of the goods and/or services delivered by Polskamp to which the liability pertains.
10.3 Damages in the form of lost profits or other consequential damages shall in no event be eligible for compensation.
11.1 The proposals made by and agreements between Polskamp and the purchaser to which the present general terms and conditions apply either in part or in full, are subject to the law of the Netherlands. The United Nations Convention on contracts for the International sale of goods (CISG) does not apply.
11.2 Any disputes arising from this agreement shall be exclusively submitted to the competent court of the statutory seat of Polskamp.