In these General Conditions of Sale shall be understood by:
⁻ GCS : the General Conditions of Sale at issue;
⁻ agreement : each agreement referred to in art. 2.1;
⁻ the customer : any person who enters into an agreement with us as referred to in art. 2.1;
⁻ days : all calendar days;
⁻ complaints : all complaints made by the customer in regard to the quality or quantity of the goods delivered;
⁻ loss : any material and/or immaterial loss suffered or to be suffered as a direct or indirect result of an event;
⁻ Goods : all products sold and/or delivered by Dunlop Protective Footwear to the customer
⁻ Dunlop Protective Footwear: Dunlop Protective Footwear B.V.;
- We/us/our : Dunlop Protective Footwear;
- Written/in writing : is understood to also include fax or email.
2.1 The GCS shall be applicable to and shall form part of:
a. all our agreements;
b. all commitments arising from these agreements;
c. all offers made by us before entering into these agreements.
2.2 The general conditions of customers shall be explicitly refused, unless expressly agreed otherwise in writing.
2.3 The provisions of articles 2.1 and 2.2, as well as the other provisions of the GCS, may be departed
from only by express written consent, undersigned by both parties.
2.4 Should any provisions of this GCS not be applicable, all other provisions shall remain in force.
2.5 Should, however, the purport of a non-applicable provision answer that of a provision to be considered applicable to an extent that such provision must be assumed to have been applied if the non-applicable provision would have been relinquished, the non-applicable provision shall be considered to have the effect of the other provision.
3. Conclusion of agreements
3.1 Our offers shall be without commitment.
3.2 We reserve the right to refuse orders.
3.3 An agreement shall be concluded through:
a. written and complete acceptance of our offer by the customer. As far as the customer accepts our offer, with deviations of minor importance, such deviations shall not form part of the agreement with us, and the agreement shall be effectuated in keeping with our offer;
b. written confirmation and complete acceptance on our part of an order given by the customer. Likewise, amendments to an agreement are not effective until confirmed in writing by us;
c. delivery of the goods and that exclusively with regard to the goods delivered in accordance with
the packing note, if the order has not expressly been confirmed in writing.
4.1 If a binding price has not been fixed in the agreement, our prices of the day of delivery shall be valid.
4.2 We shall be entitled to pass on all cost increases to the customer.
We shall inform the customer of the passing-on in writing.
4.3 Unless agreed otherwise, our prices shall be exclusive of V.A.T., other taxes and levies, cost of transport
and cost of insurance.
5. Delivery and risk
5.1 Unless agreed otherwise, delivery shall take place through written notification to the customer that the goods intended for him are ready for transport in our warehouses, or, if no notification has been given, by loading of the goods concerned into the means of transport.
5.2 If we take care of the transport of the goods, we shall be free to choose the means of transport.
5.3 We shall be entitled to deliver in installments and to invoice each installment separately.
5.4 We shall always be entitled to ship the goods C.O.D. to the customer and to dissolve the agreement if the customer refuses to pay for them on arrival at the place of destination.
5.5 As from the moment of delivery to the customer's point of delivery the risk of the goods shall be for the customer's account.
5.6 Unless we have expressly guaranteed a certain term of delivery in writing, the terms of delivery stated
shall never be regarded as deadlines. In case a shortcoming of our obligations to deliver is attributable to us, the customer shall give us written notice of default and allow us a reasonable period of time (at least 6 weeks) to fulfill our obligations to deliver yet, without the customer and/or third parties being entitled to claim any compensation of loss and costs from us.
5.7 If we have to store goods after delivery, this shall be done for account and risk of the customer. If in our opinion, in view of, amongst other things, the cost of storage, the collectability of the selling price or the fulfillment of other obligations by the customer is no longer opportune and the customer, after having been summoned in writing, has not collected the goods within 5 days, we shall be entitled to take possession of the goods for account and risk of the customer, to collect the income arising there from and to offset this against his debt to us. The customer shall in that case be liable for all losses and costs.
5.8 For an explanation of the terms generally used in commerce, such as f.o.b., c.i.f., etc., we refer to the
INCOTERMS of the International Chamber of Commerce, valid on the date of conclusion of the
6. Force majeure
6.1 If through force majeure we cannot fulfill one or more of our obligations, we shall be entitled to cancel the agreement in full or in part through written notification to this effect to the customer.
6.2 We shall be entitled at any time to cancel the agreement if, as a result of a shortcoming which is not
attributable to us we cannot meet our obligation to perform within 30 days after the commencement thereof.
6.3 Neither in the case of art. 6.1, nor in that of art. 6.2 shall we be liable to compensate any loss and costs incurred or to compensate any profit not made.
6.4 Force majeure includes but is not limited to circumstances that are not attributable to us and which prevent us from fulfilling our obligations under the agreement and include: war, risk of war, civil commotion, fire, strike, blockade, lock-outs, traffic disturbance, factory disturbance, disturbances in the supply of energy or raw materials/semi-manufactured goods, illness of personnel, failure of (sub)contractors to fulfill their obligations or to fulfill them in good time.
7.1 Unless agreed otherwise, our invoices shall be paid within 30 days after the date of the invoice. All
payments shall be made free of charge to us at our office or through remittance to one of our bank or giro
accounts. Discount or offsetting shall not be allowed unless the customer has an immediately payable claim on us which he wishes to settle in virtue of a legal provision and has informed us with respect thereto within 7 days after the date of the invoice.
7.2 However, the invoiced price will be immediately payable at any time without a demand or notice of default being required, if the customer is declared bankrupt, applies for a temporary moratorium, if the customer loses the control of its assets or part of them due to attachment or otherwise, and if the customer fails to fulfill any of its obligations irrespective of these obligations arise from an agreement or from the law.
7.3 If the customer does not completely fulfill his obligation to pay within the term agreed upon, he shall be in default without notice of default being required and shall as from that moment be obliged to pay us an interest of 1.5% per month — whereby part of a month shall be considered to be a full month — on the total payable amount. Each time after expiry of one month the amount on which interest is charged shall be increased by the interest due for that month.
7.4 If the customer is in default with regard to his obligation to pay, we shall be entitled to take measures for collection. The customer shall then be bound to reimburse the internal costs to be incurred by us, as well as any legal and extralegal costs relating to the claim. The extent of the costs shall be determined on basis of the statement(s) of expenses of the lawyer and/or process-server entrusted with the collection. Our internal costs shall be put at 10% of the invoiced amount, with a minimum of € 100.-. We are only obliged to prove the costs incurred in so far as they exceed the percentage and the amount referred to in the previous sentence.
We shall be entitled at any time to demand prepayment or a security from the customer to ensure that he
meets his liabilities. If the customer refuses to comply with a request to this effect within 8 days, we shall be entitled to dissolve the agreement. In case delivery has already taken place, the customer shall be obliged to return for his account the goods immediately to us, but not later than one week from the date of our written notification of dissolution of the agreement without being liable for any compensation. Until the goods have been received back and approved by us hey shall be at the customer's risk.
9.1 The customer shall be in default:
a. if, after having been sent a dunning letter, he has failed to fulfill his obligations completely within 8 days after receipt of the dunning letter;
b. without notice of default being required, if a term fixed for fulfillment of an obligation has elapsed without the obligation having been fulfilled;
c. without notice of default being required, if from information on the part of the consumer we can
deduce that he will fail to completely fulfill his obligation;
d. in cases where an obligation has not been fulfilled and it has been decided that a notice of default is not required.
9.2 If the customer is in default we shall be entitled to demand fulfillment of the obligation and to dissolve the agreement. Additionally, we have the right to claim compensation as well.
9.3 We shall be entitled to suspend all deliveries on any account whatsoever to the customers if and as long as he is in default in regard to any obligation towards us.
9.4 If the customer has come to be in default with regard to any obligation, all the claims which we have
against him shall become immediately payable. As from the same day the interest referred to in art. 7.3 shall be charged on these claims, except if a higher rate of interest had already been agreed; in this case the higher rate of interest shall be applicable.
10.1 If we exercise our right to dissolve the agreement in part or in full, the dissolution shall be effectuated through written notification to this effect.
10.2 In case of dissolution of the agreement on our part, the customer shall be obliged to compensate any loss and the costs incurred by us, unless the dissolution took place pursuant to the provisions of art. 6. The customer shall not be entitled to claim compensation of any loss and costs from us.
10.3 After dissolution of the agreement, all goods already delivered shall be returned to us free of charge. In addition, we shall be entitled to demand immediate surrender of the goods from those holding them. The goods shall remain at the customer's risk until we have received and approved them.
11. Reservation of ownership/non-possessory lien
11.1 All goods delivered by us shall remain our property until the customer has paid all our claims on account of the agreement in regard to these goods and has paid for the activities performed in regard thereto, increased by interest and costs.
11.2 In case the customer used goods under a reservation of property supplied by us and transformed them into new goods, he acted under our orders and shall become the holder thereof. He shall not become owner until the moment of cancellation of the reservation of ownership, which will be after all our claims have been paid.
11.3 As far as we still have claims on the customer other than those referred to in art. 11.1 and we have
delivered goods to which no reservation of property is attached, the customer shall establish a non-possessory lien on these goods — which lien shall be accepted by us — in our favor, in order to
guarantee fulfillment of his obligations towards us. Immediately after our request, the customer shall sign a deed to establish the lien. He shall vouch for his competence to pledge the goods and shall state any rights attached to these goods.
11.4 The customer shall be entitled to resell in the normal way all goods falling under the reservation of
ownership/non-possessory lien or to process them within the normal operations of his factory. Subject to
the provision of the preceding sentence, the customer shall not pledge the goods referred to in this article
to third parties or in any other way surrender, transfer or limit to our prejudice the legal or factual power of
disposal referred to in this article.
11.5 In case the customer resells the goods he shall be obliged to establish a non-possessory lien in our behalf on his claim on the buyer resulting from the sale of the goods.
11.6 The customer shall be obliged to maintain the goods carefully and to store them separated from other goods and recognizable as our property. He shall be obliged to insure the goods against all calamities at the value invoiced by us. In case of loss or damage of the goods owing to a calamity the insurance money shall be paid to us. The customer shall be bound to inform his insurers of these obligations and shall, at our request, state the names and addresses of his insurers and provide us with copies of the policies. We shall be entitled to inform these insurers of the fact that the insurance money for the goods supplied by us must be paid to us. Moreover, the customer shall at our request, as far as this has not already arisen by legal right, immediately established a non-possessory lien on his claims concerned on the insurer.
11.7 We shall be entitled to dissolve the agreement if the consumer is in default in regard to any of his obligations laid down in the present article. The customer shall be deemed to be in default through the mere fact that he acts contrary to one of these obligations. A notice of default shall not be required therefore.
12. Quality and complaints
12.1 We guarantee the soundness of the goods delivered by us and of the materials used therefore, provided that the goods are stored and used in the normal careful manner — in accordance with our instructions — for the purpose for which they have been made.
12.2 Upon delivery, the customer shall be obliged to count, measure, weigh and check the goods for visible Defects, to check whether the goods correspond to the agreement and to examine the goods in the usual manner for invisible defects prior to proceeding to storage or use. Goods once taken into use shall be considered to be in accordance with the agreement, unless an item proves to have a invisible defect which cannot be ascertained in a normal manner. Complaints regarding the quality of the goods delivered shall be considered only if the goods have been delivered as `first quality' goods.
12.3 Complaints regarding numbers, weights and measures, visible or simply ascertainable invisible defects shall be submitted to us in writing as soon as possible, but not later than 8 days after delivery of the goods. If we have not received a written complaint within this period the goods shall be considered to be in accordance with the agreement.
12.4 If an item delivered by us proves to have an invisible defect, a complaint must be made to us in writing as soon as possible, but not later than 8 days after the defect has made known or could have been known.
12.5 The customer shall no longer be entitled to exercise any rights to a claim if:
a. the term for complaints has been exceeded, or
b. an invisible defect becomes known more than one year after delivery.
12.6 If an item shows a defect about which a complaint has been received in time, we shall only be obliged the repair or replace the item, or be entitled to dissolve the agreement and to refund the purchase price paid. In which of these forms the compensation will be given, shall be exclusively at our discretion.
12.7 If we decide to replace an item or to dissolve the agreement and to refund the purchase price paid, we shall be entitled to charge a fee to the customer for the period the item has been used by the customer or by a third party. This fee shall be in the same proportion to the purchase price as the period of use to the normal life of the item.
12.8 Even if the customer is of the opinion that an item delivered to him is unsound, his obligations under the agreement remain in full force. He shall not be entitled to offset his alleged counter-claims on us against his payment obligations towards us.
12.9 Return shipments shall be accepted by us only if they are sent to us free of charge. Credit notes shall be sent to the customer only after we have concluded an agreement with the customer explicitly for this purpose.
13. Limitation of liability
13.1 If an item shows a defect about which a complaint has been received in time, we shall not be bound
towards the customer or third parties to pay any compensation other than that ensuing from art. 12.
13.2 We shall not be liable for any loss and costs due to errors or omission of us or of anyone made in the implementation of the agreement or during the use of auxiliary materials, except in cases of intent or gross negligence.
13.3 We shall not be liable for any loss and costs caused by deliberate intent or gross negligence of the persons whose services we make use of in the implementation of the agreement, whoever may be their employer.
13.4 If the customer resells goods supplied by us or produces new goods from goods (co)supplied by us and resells them, he shall be obliged to insure the goods adequately against liability risk. At our request he shall immediately send us a copy of the policy concerned.
13.5 Our liability shall be always limited to the amount paid out under the insurance for the claim in question plus the applicable excess.
13.6 Every claim or right of action of the customer expires two years after the day of delivery of the goods.
13.7 This article and the following article 14 shall be correspondingly applicable to the persons involved in the carrying out of the activities in accordance with our order.
The customer shall hold us harmless against claims from third parties, including claims concerning
compensation of loss and costs, beyond the provisions of article 13.1 due to unsoundness of goods
supplied by us, faults and omissions of us and anyone in the execution of the agreement, the utilization of
auxiliary materials or infringements on the rights of third parties.
The customer shall be obliged to compensate us for the loss and the cost incurred.
15. Intellectual rights of ownership of third parties
15.1 If we manufacture goods for the customer with the aid of tools made available by him or made in
accordance with his instructions, such as moulds, lasts, dies, or on the basis drawings, models, samples
or other data made available by him, the customer shall guarantee that we do not infringe on the intellectual
rights of ownership of third parties.
15.2 If we should become aware that such manufacture and/or delivery means a violation of a right of a third party, we shall be entitled to suspend the manufacture and/or delivery of the goods concerned and/or to dissolve the agreement without further notice and without being liable for payment of indemnification. The customer shall be obliged to fully compensate us for any loss and costs arising there from.
16. Special goods
16.1 The customer shall guarantee the correctness, completeness and unambiguity of all specifications,
drawings, calculations and other data made available by him, on the basis of which we produce special
goods for him.
16.2 The customer shall guarantee that the special goods made by us on basis of the specifications, drawings, calculations and other data made available by him, are suited for the purpose for which they are placed on the market.
16.3 If unsoundness or defects of goods are attributable to errors, omissions, lack of clarity or any other
imperfections in these specifications, drawings, calculations and other data, or if the special goods should
prove to be unsuited for the purpose for which they are placed on the market, the customer shall hold us
harmless against any claims of third parties on that account. Moreover, he shall be obliged to compensate us for the loss and the costs incurred by us.
16.4 The customer shall be obliged to test samples of the special goods within 14 days after dispatch thereof by us. If we have not received notice of disapproval within these 14 days, the samples shall be considered to have been approved.
16.5 Unless agreed explicitly otherwise, we shall have the right to manufacture the same special goods,
manufactured for the customer, also for third parties.
17. Tools, drawings, etc.
17.1 Unless agreed otherwise, moulds, lasts, dies and all other tools, drawings, designs, models as well as all other data used for the manufacture of certain goods and which have been made by us or made in
accordance with our order, shall remain our property. The intellectual rights of ownership relating to these
tools, drawings, etc. shall be owned by us.
17.2 If in our opinion moulds, drawings, etc. owned by the customer have to be replaced or repaired, the costs attached thereto shall be passed on to the customer.
For maintenance, storage, insurance, etc. of tools the customer shall pay us an annual amount of 10% of
the production costs, with a minimum of € 250.
17.3 Tools, drawings, etc. made available by us to the customer shall not be copied or made available for use or inspection to third parties without our written consent. The items shall be returned to us free of charge immediately after use or upon our request. Through the mere contravention of this provision the customer shall in behalf of us forfeit an immediately payable penalty of € 50,000 for each contravention and of € 5,000 for each day the contravention continues, without prejudice to our right to compensation of loss and costs.
17.4 We shall have the right to destroy tools, drawings, etc. owned by the customer, if the items concerned have not been used in behalf of the customer for an uninterrupted period of 12 months, unless the customer in question has, not later than 1 month before the expiration of that period, expressed his
preference for maintenance thereof.
18. Cross-border agreements
18.1 Section 6.5.3 of the Dutch Civil Code is applicable on agreements between Dunlop Protective Footwear and the customer who has his domicile outside The Netherlands.
19. Applicable law
All legal relationships between us and the customer are subject to Dutch law. The applicability of the United Nations Convention on international purchase agreement concerning movable goods of 1980 (Vienna Sale Convention) is specifically excluded.
20. Competent Court
All disputes between the parties will be brought before the competent court of Overijssel subject to the provision that Dunlop Protective Footwear is also authorized to bring a dispute before the competent court in the jurisdiction where the customer has its registered office.
We shall be entitled to amend these GCS. The amended provision(s) shall become effective on the date
such amendment has been deposited at the Chamber of Commerce mentioned in article 22.
22. Date of commencement
These GTC shall come into effect as of 1st February 2014. They will be deposited at the Chamber of Commerce of Zwolle.