Article 1: Applicability
These General Terms apply to all offers, agreements and the fulfilment thereof, deliveries, and providing advice and/or information. Unless explicitly agreed otherwise in writing, the applicability of terms used by the Principal is explicitly excluded. If Perfect coat has agreed to the applicability of deviating terms, these General Terms continue to apply in all other respects, even if not explicitly stated as such. In case of any possible agreed deviations to these terms, the Principal cannot derive any rights from these deviations for future agreements. Once the Principal has concluded an agreement with Perfect coat based on these terms, or if the Principal has cognisance or can reasonably be considered to have had cognisance of these terms in any other way, these terms will be the applicable terms for every future agreement to be concluded with Perfect coat.
Article 2: Offers/Quotations
All offers/quotations are free of obligation, unless explicitly stated otherwise. If Perfect coat has to carry out an order and/or instruction according to drawings, diagrams, instructions, dimensions, weights, etc., provided by the Principal, the latter will guarantee the correctness and completeness of the information provided. If an order is not granted to Perfect coat, then Perfect coat will be authorised to charge the Principal all the costs that it had to incur in order to make the offer. The stated prices apply ex. factory, excluding turnover tax, packaging costs, shipment and taxes and/or duties levied by the government. The contents of brochures, printed matter, etc., do not bind Perfect coat, unless the agreement explicitly refers to them.
Article 3: Conclusion
Agreements are not concluded, whether an offer has been made by Perfect coat or not, until the order and/or instruction from the Principal has been confirmed by Perfect coat in writing, and/or when Perfect coat has received an approved and signed offer returned by Principal, or when Perfect coat has commenced the actual fulfilment of the instruction/order. If the Principal does not object in writing to the contents of Perfect coat’s written order confirmation within three days after receipt, stating reasons, the order confirmation is considered to reflect the agreement between the parties fully and correctly. Agreements with subordinate employees of Perfect coat do not bind the latter unless they are confirmed in writing by Perfect coat. Within this context, subordinate employees include all employees and staff who do not have a power of attorney. With regard to deliveries and activities for which no quote and/or order confirmation is sent because of their nature and/or volume, the invoice and/or packer’s number/work sheet, signed by the Principal, will be considered to be the order confirmation. In case of offers and/or deliveries according to samples/examples and/or models – these will apply only as standards to establish the average quality and fulfilment of the goods to be delivered.
Article 4: Prices
If there is an increase in one or more cost-price factors, Perfect coat is authorised to increase the order price accordingly, subject to any statutory regulations possibly applicable in this regard, on the understanding that future price increases that are already known, will be stated when concluding the agreement.
Article 5: Packaging Material
Unless explicitly agreed otherwise, necessary packaging material will be calculated at cost price and not taken back. The necessity of the use of packaging material is at the discretion of Perfect coat.
Article 6: Delivery and Transport
Delivery takes place ex. factory. Delivery times are set by approximation. The delivery period commences when agreement has been reached about all technical details and all information, drawings, etc., required for the fulfilment of the job are in the possession of Perfect coat. The delivery time is established with the understanding that Perfect coat is able to continue working in the manner that was foreseen at the time of the offer, and the required materials are delivered by the Principal in good time. In case of non-timely delivery, Perfect coat is only in default after a correct and written notice of default, demanding that Perfect coat deliver within a reasonable period of time, has been received. Exceeding the delivery time can only give rise to damages if explicitly agreed upon in writing. If the goods have not been taken possession of by the Principal after the expiry of the delivery time, the goods are then at the disposal of the Principal and will be stored at his risk and expense. After a written notice of default, stating a thirty-day term, Perfect coat is authorised to sell the goods for, and on behalf of, the Principal at the latter’s expense, under the obligation to pay the proceeds thereof to the Principal after deducting all Perfect coat’s claims on the Principal, and without prejudice to Perfect coat’s right to damages.
Article 7: Impossibility of Fulfilling the Instruction
If, after the conclusion of the agreement, it transpires that Perfect coat cannot fulfil the agreement due to circumstances that were not known to Perfect coat when the agreement was concluded, then Perfect coat will have the right to claim that the agreement be changed to such an extent that fulfilment thereof is still possible. In addition to this, Perfect coat is authorised to suspend the fulfilment of its obligations and will not be in default if Perfect coat is temporarily prevented from fulfilling its obligations because of changes in circumstances that could not reasonably be foreseen when concluding the agreement and that lie outside Perfect coat’s sphere of influence. Circumstances that could not reasonably be foreseen and lie outside Perfect coat’s sphere of influence, include non-fulfilment or overdue fulfilment of obligations by suppliers and/or subcontractors vis-à-vis Perfect coat, fire, strikes or work stoppage, the loss of materials to be processed, or import and/or trading bans. There is no right of suspension if fulfilment proves to be permanently impossible or the temporary impossibility lasts longer than six months, in which case the agreement between the parties will be dissolved without either party being entitled to compensation of damages suffered or to be suffered because of this dissolution. If Perfect coat has partially fulfilled its obligations, it will be entitled to a proportionate part of the agreed price based on the work already carried out and the costs incurred.
Article 8: Extra Costs regarding Additional and Less Work
Changes to the instruction, either because of special instructions from the Principal, a change in the design, information provided not corresponding with the actual fulfilment, or there is a deviation from the estimated quantities, must be considered additional work if extra costs are incurred because of this, and as less work if less costs are incurred. Additional work will be charged on the basis of price-determining factors that apply at the time the additional work is carried out. Less work will be settled on the basis of price-determining factors applicable at the time of the agreement’s conclusion. Extra costs incurred because of the delivery of incorrect products and/or incorrect delivery by the Principal will be charged as additional work.
Article 9: Liability
Perfect coat does not accept any liability for direct or indirect damage, of whatever nature, which is caused to the other party or third parties in connection with goods or parts thereof delivered by Perfect coat and/or in connection with the fulfilment of agreement(s) concluded with Perfect coat, including activities being carried out. Perfect coat is also not liable for damage, direct or indirect and of whatever nature, caused by subordinates, non-subordinates and/or agents, and intermediaries engaged by Perfect coat and/or the use of auxiliary materials. If the other party uses/processes the goods delivered by Perfect coat, all this in the broadest sense of the word, and third parties suffer indirect or direct damage because of this, the other party is under the obligation to indemnify Perfect coat against the possible claims of these third parties vis-à-vis Perfect coat. The exclusion of liability as set out in this article does not apply in cases of intentional acts or omissions by Perfect coat, or if, and insofar as, Perfect coat cannot invoke this exclusion pursuant to statutory regulations. If Perfect coat is liable, this liability is limited to the sum paid out by Perfect coat’s insurance companies in this regard, or – if Perfect coat is not insured or the insurance companies do not pay out – to a maximum of one third of the net invoice sum with regard to which the damage arose. The damage to be compensated by Perfect coat will be moderated if the price to be paid by the Principal is slight in comparison to the extent of the damage suffered by the Principal. The Principal will indemnify Perfect coat against every claim for damages by third parties regarding the use of drawings, samples, models or model sheets or other goods and data respectively sent by the Principal; the Principal will be liable for all costs resulting from this.
Article 10: Warranty
With regard to an instruction for treating material supplied by the Principal, Perfect coat warrants the solidity of the treatment to be carried out. If the treatment proves to be faulty within six months after delivery, Perfect coat will be at liberty to either carry out the treatment again (provided that the Principal supplies new material at its own expense), remedy the fault or credit the Principal for a proportionate part of the invoice. In case of faulty delivery, Perfect coat is entitled to credit the Principal fully after the carriage paid return of the faulty goods, repair the faulty goods or redeliver the goods in question. The Principal must grant Perfect coat the opportunity to repair a possible defect at all times. Faults created by normal wear and tear, inexpert handling or incorrect maintenance, or which occur after alterations or repairs by the Principal or third parties, are not covered by the warranty. The warranty only applies if the Principal has fulfilled all his obligations vis-à-vis Perfect coat (both financially and otherwise) or has furnished sufficient security for this.
Article 11: Transport
All goods travel at the expense and risk of the Principal from the moment of dispatch. Even of Perfect coat arranges the transport, the Principal is liable for all damages relating to the transport, even if the title to the goods has not been transferred yet. The Principal must take out sufficient insurance for this risk. If the above provisions cannot be invoked, Perfect coat will never be liable to pay more than the sum received by the carrier and/or insurance company regarding the loss and/or damage that occurred during the transport; if requested by the Principal, Perfect coat will assign its claim on the carrier and/or insurance company to the Principal.
Article 12: Uncollected Goods
If the Principal does not collect its goods held by Perfect coat against payment of the due sums – despite these goods having been made available to the Principal – Perfect coat will be authorised – within one month after these goods have been made available – to sell these goods, after a written notice, for and on behalf of the Principal, under the obligation to pay the proceeds thereof to the Principal, after deduction of all claims that Perfect coat has upon the Principal, including storage costs.
Article 13: Payment
Payment must take place in Dutch currency to Perfect coat’s place of business, not later than the 30th day after the invoice date. Discounting and/or offsets are not allowed. Perfect coat will be authorised at all times to request sufficient collateral for the fulfilment of the Principal’s payment obligations, prior to delivery or prior to continuing with the delivery or fulfilment of the instruction, such at the discretion of Perfect coat. The Principal’s refusal to furnish such collateral will give Perfect coat the right to dissolve the agreement by means of a written statement to that end, without prejudice to Perfect coat’s right to claim compensation for expenses and loss of profits. Furthermore, Perfect coat is authorised – in the event that the Principal fails to observe its payment obligations – to suspend the activities, even if a fixed term of delivery has been agreed upon. Regulations set by any authority that preclude the use of goods delivered, or to be delivered, do not affect the Principal’s financial obligations in any way. The Principal’s right to offset its possible claims on Perfect coat is explicitly excluded. If payment of a sent invoice has not taken place within 30 days after the invoice date, Perfect coat will be authorised, after expiry of the said term, to charge the Principal a fee because of loss of interest equalling the statutory interest, but in any case with a minimum of 10% a year if the statutory interest falls below 10%. When calculating the interest, part of a month will be considered a full month. Furthermore, Perfect coat is authorised to claim – on top of the principal claim and interest due by the Principal – the reimbursement of all extra-judicial costs incurred because of non-payment or late payment. The Principal will in any case owe extra-judicial costs if Perfect coat has employed the services of a third party for the collection of the claim. Said costs will be charged in accordance with the collection rate advised by the Netherlands Bar Association regarding collection cases. The mere fact that Perfect coat has employed the services of a third party is evidence of the extent of, and obligation to pay, the extra-judicial costs. If Perfect coat applies for the bankruptcy of the Principal, the latter will – next to the principal sum, interest and extra-judicial costs – also owe the costs of this bankruptcy petition. If judicial proceedings are decided completely or partially in favour of Perfect coat, all costs incurred by Perfect coat in connection with these proceedings will be at the expense of the Principal. If Perfect coat has one or more claims on the Principal that have not resulted from goods delivered to or to be delivered, or from activities carried out or to be carried out on behalf of the other party, or regarding claims relating to shortcomings in the fulfilment of such agreements, any payment by the Principal will first of all serve to settle these claims. In case of non-timely payment, a suspension of payments or petitions to that end, bankruptcy or petitions to that end and/or the winding-up of the Principal’s business, or the Principal’s discontinuation of its business operations, the invoice sum will immediately become due and payable. Perfect coat will also be authorised to dissolve all agreements which have not been fully completed by means of a written statement – without any judicial intervention being required – or to suspend its obligations, without prejudice to its other rights, including the right to damages.
Article 14: Claims or Complaints
Immediately upon delivery, the Principal must assess whether the delivery meets the agreement. The Principal can no longer claim a shortcoming in the performance if the Principal fails to lodge a written complaint with Perfect coat within eight days after the Principal discovered, or could reasonably have discovered, the defect within the term of warranty. When lodging a complaint, the Principal must specify the defect in writing to Perfect coat, and how and when this defect was discovered. Complaints regarding invoices must be lodged in writing within eight days after receipt thereof. The Principal will lose all rights and powers available to the Principal pursuant to defectiveness if the Principal failed to lodge Rev. 1 d.d. 07.02.02 any complaints within the above-mentioned terms and/or the Principal has not granted Perfect coat the opportunity to remedy the defects. The right to lodge a complaint lapses if the Principal has processed the goods.
Article 15: Retention of Title and Pledge
The Principal will only become the owner of the goods delivered, or to be delivered, by Perfect coat under a suspensive condition. Perfect Coat remains the owner of the goods delivered, or to be delivered, as long as the Principal has not paid the claims of Perfect coat regarding the considerations set out in the agreement or a similar agreement. Perfect Coat also remains the owner of the goods delivered or to be delivered, as long as the Principal has not paid for the activities carried out, or to be carried out, pursuant to such agreements, and as long as the Principal has not settled claims of Perfect coat regarding the shortcomings in the fulfilment of such agreements, including claims relating to fines, interest and third party costs. The Principal, as long as the above claims have not been settled, is not authorised to grant a mortgage or make a (non-possessory) pledge on the goods delivered by Perfect coat. The Principal also undertakes – at first request of Perfect coat – to state to third parties who wish to establish such a right on these goods that the Principal is not authorised to establish such a mortgage or pledge. If the Principal fails to fulfil any obligation vis-à-vis Perfect coat arising from the agreement regarding the goods sold or the work to be carried out, Perfect coat will be authorised – without any notice of default being required – to take back the goods, both the goods originally delivered and the newly created goods. The Principal must give Perfect coat the authorisation to enter the location where these goods are located. Perfect coat will transfer the title to the delivered goods to the Principal as soon as the Principal has fulfilled all his payment obligations from this and similar agreements, under reservation of the pledge of Perfect coat on behalf of other claims that Perfect coat has on the Principal. The Principal will – at the first request of Perfect coat – grant its co-operation to the actions that are required within this framework.
Article 16: Dissolution
Complete or partial termination of the agreement takes place by receipt of a written notice from the authorised representative. Before the Principal addresses a written notice of dissolution to Perfect coat, the Principal must always first declare Perfect coat in default in writing, stating a reasonable term within which Perfect coat can eventually fulfil its obligations and/or remedy shortcomings. Said shortcomings must be accurately specified by the Principal. The Principal is not authorised to dissolve the agreement partially or entirely, or suspend his obligations, if the Principal is already in default regarding the fulfilment of its obligations himself. If Perfect coat agrees to dissolution without there being any default on their side, they will continue to be entitled to compensation for all financial losses, such as costs, lost profits and reasonable costs incurred in establishing damages and liability. In case of partial dissolution, the Principal cannot request the undoing of performances already rendered by Perfect coat and Perfect coat will remain fully entitled to payment for these performances already rendered.
Article 17: Applicable Law and Settlement of Disputes
All agreements are governed by the law of the Netherlands. The provisions of the Vienna Sales Convention do not apply, nor do any future international regulations regarding the purchase of moveable, physical goods, provided that it is possible for the parties to exclude the applicability of such regulations. All disputes following from offers and agreements, of whatever nature, will be brought before the competent Civil Court in Perfect coat’s place of business, unless statutory provisions dictate otherwise.
Article 18: Conversion Stipulation
If one or more provisions from the agreement(s) between Perfect coat and the Principal prove to be partially or completely invalid, then the remaining provisions will continue to apply in full force. Furthermore, the parties – as far as the invalid provision is concerned – will be considered to have agreed upon a provision that is legally valid and approximates the invalidated provision as much as possible.
Article 19: Registration
These General Terms have been filed at the offices of the Chamber of Commerce and Industry Noord- en Midden Limburg in Venlo.