GENERAL TRADING AND DELIVERY CONDITIONS OF SECTOLIN B.V.
Sectolin: Sectolin B.V., with its registered office in Enschede, the Netherlands;
Other Party: the natural person or legal entity that purchases goods from Sectolin within the framework of its commercial, operational, craft or professional activities;
Consumer: the natural person who purchases goods from Sectolin and who does not act in the course of a profession or business.
Conditions: these general trading and delivery conditions
2 Applicability of and changes to the Conditions
1. These Conditions apply to all quotations, offers, agreements, other services or legal relationship between Sectolin and the Other Party / Consumer, insofar as the parties do not explicitly deviate from these Conditions in writing.
2. Sectolin explicitly rejects any referral by the Other Party / Consumer to his own general (trading) conditions, unless the parties agree otherwise in writing before the agreement is concluded.
3. Sectolin is entitled to change the Conditions, and after implementation of the change, the changed Conditions apply to existing legal relationships and agreements.
4. Sectolin will announce changed Conditions in a timely fashion and they come into effect 30 days after the written announcement of the change, or at a later date given in the announcement.
5. If any provision in the Conditions is null and void or is declared void, the other provisions of the Conditions will remain in full force. The Other Party / Consumer and Sectolin will consult in order to agree on a new provision to replace the null and void or nullified provision, in the course of which the objective and purport of the null or nullified provision will be duly observed to the greatest extent possible.
1. All offers made by Sectolin are without obligation for both parties and are valid for 14 days, unless indicated otherwise.
2. Sectolin is bound by the offers only after it has permanently confirmed an instruction for selling or providing services in writing and subject to contract.
3. The invoice submitted by Sectolin also serves as order confirmation in the event that Sectolin delivers the order placed by the Other Party / Consumer to the Other Party / Consumer immediately after the order having been placed.
4 Price and payment
1. All prices of goods and/or services to be provided by Sectolin are net prices, without discounts and for the Other Party exclusive of VAT or other duties or taxes and for Consumer inclusive VAT. The Other Party / Consumer pays the delivery costs for orders of less than 200 Euros.
2. In the event that Sectolin and the Other Party / Consumer agree on a certain price, Sectolin is nevertheless entitled to increase the price if Sectolin can demonstrate that, between offer and delivery, significant price changes have occurred with regard to raw materials, currencies and/or wages or other unforeseen circumstances.
3. Sectolin will charge the price owed by the Other Party / Consumer by means of an invoice. Unless agreed otherwise in writing, payment must be made within 14 days of the invoice date, in Euros and in the manner stipulated by Sectolin. The moment of payment is the moment at which Sectolin receives the money due. The Other Party is not entitled to any postponement or set-off.
4. Without any demand or notice of default being required, the Other Party / Consumer will be in default by operation of law when he fails to fulfil his payment obligation in time. If the Other Party is in default, he owes Sectolin 1.5% in interest on the invoice amount per month until the day on which payment is made in full. If the Consumer is in default, he owes Sectolin the statutory interest on the invoice amount until the day on which payment is made in full.
5. If the Other Party / Consumer is in default, everything owed to Sectolin by the Other Party / Consumer will be immediately due and payable in full by virtue of any agreement. In that case, Sectolin will to her own choice also be entitled to dissolve or end the agreement without legal intervention, by means of a written declaration. In that case, the Other Party / Consumer is liable for any kind of damage suffered by Sectolin, such as lost profits, transport costs and costs ensuing from the notice of default. In such cases, the Other Party / Consumer also owes Sectolin the extrajudicial collection costs in accordance with the graduated scale for extrajudicial collection costs (Staffel Buitengerechtelijke Incassokosten, BIK).
6. If the Other Party / Consumer feels that the invoice amount is incorrect, the Other Party / Consumer must announce the objections to Sectolin in writing before the invoice due date as referred to in paragraph 3. If objection is not made in time, the right to object against the invoice amount will lapse. After having received a notice of objection, Sectolin will investigate the correctness of the invoice amount. Any part of the invoice to which no objection is raised will remain due and payable. Payment of that part can therefore not be suspended.
7. Any payments made by the Other Party / Consumer will first be applied to settle all interest and costs payable and secondly to settle outstanding invoices that have been payable longest, even though the Other Party / Consumer has stated that the payment relates to a later invoice.
8. Without prejudice to the other provisions in these Conditions, an agreement with the Other Party / Consumer is, following a written declaration and without legal intervention, dissolved and/or terminated, at the discretion of Sectolin, when the Other Party / Consumer files for bankruptcy, applies for a moratorium, if the property of the Other Party / Consumer is seized, if the Other Party / Consumer is placed under guardianship or if the Debt Management Natural Persons Act is declared applicable to him or when the Other Party / Consumer otherwise loses the power of disposition over his assets or parts thereof, unless the receiver or administrator recognises the obligations ensuing from this agreement as bankruptcy estate and demands security for payment. At the time referred to in the previous sentence, all claims against the Other Party / Consumer are immediately due and payable and susceptible for compensation.
9. If in the opinion of Sectolin, the financial position or payment record of the Other Party / Consumer gives rise thereto, Sectolin will be entitled to demand that the Other Party / Consumer furnishes immediate (supplementary) security in accordance with the format to be determined by Sectolin. If the Other Party / Consumer fails to furnish the requested security, Sectolin will be entitled to immediately discontinue the execution of the agreement, without prejudice to any other of its other rights, while the total amount owed to Sectolin by the Other Party / Consumer, regardless of the reason, will become immediately due and payable.
10. In the event of a jointly given instruction, Other Parties / Consumers are jointly and severally liable for payment of the invoiced amount, insofar as the agreement is in favour of the joint Other Parties / Consumers.
1. In the Netherlands, delivery is made at place (DAP) in accordance with the Incoterms, while abroad delivery is made Ex Works, in accordance with the Incoterms.
2. The Other Party / Consumer is obliged to take delivery of the goods and/or services the moment they are delivered to him, or the moment they are made available to him in accordance with the agreement.
3. If the Other Party / Consumer refuses to take delivery or fails to provide information or instructions required for the delivery, the goods will be stored at the risk of the Other Party / Consumer. In that case, the Other Party / Consumer will be liable for all additional expenses, including in any case the costs of storage.
4. Sectolin sets delivery periods and/or delivery dates to the best of its knowledge and they will be honoured to the greatest possible extent. However, they can never be regarded as final deadlines, unless explicitly agreed otherwise in writing.
5. When said period or dates are exceeded by Sectolin for whatever reason, the Other Party / Consumer will not be entitled to compensation, dissolution of the agreement of non-fulfilment of any obligation ensuing for the Other Party / Consumer from the agreement in question or any other agreement concluded with Sectolin, unless it concerns an unreasonable transgression of the delivery time.
6. Before being able to invoke dissolution of the agreement, the Other Party / Consumer must declare Sectolin in default by means of a registered letter, stipulating a reasonable period (of at least eight working days) within which Sectolin must comply.
7. The Other Party / Consumer is never entitled to dissolve the agreement on account of late delivery by Sectolin if this late delivery can be attributed to force majeure on the party of Sectolin, unless this force majeure situation continues for more than three months.
8. Sectolin is entitled to deliver the sold goods and/or services in stages. This does not apply if the partial delivery has no independent value. If the goods are delivered in stages, Sectolin will be entitled to invoice each stage separately.
9. Sectolin reserves the right to suspend execution of the agreement if the Other Party / Consumer fails to fulfil an obligation in these Conditions or the agreement towards Sectolin and this non-fulfilment justifies suspension. The obligation of the Other Party / Consumer to fulfil the agreement and the Conditions remains in force for the term of the suspension.
10. The suspension to execute the agreement is lifted when it becomes evident that the Other Party / Consumer has fulfilled his obligations within a term stipulated by Sectolin.
6 Retention of title
1. All goods delivered by Sectolin remain the property of Sectolin until the Other Party / Consumer has fulfilled all obligations from all agreements concluded with Sectolin.
2. Goods delivered by Sectolin, which pursuant to paragraph 1 are subject to retention of title, may only be resold in the context of normal business activities and may never be used as means of payment.
3. The Other Party / Consumer is not entitled to pledge, or in any other way encumber goods that are subject to retention of title.
4. The Other Party / Consumer hereby gives his unconditional and irrevocable permission to Sectolin, or a third party to be appointed by the latter, to access all locations where the property of Sectolin can be found and to retrieve those goods whenever Sectolin wishes to exercise its rights of ownership.
5. If a third party seizes delivered goods subject to retention of title or if it wishes to establish a right or lay claim to that, the Other Party / Consumer is obliged to notify Sectolin of that as soon as reasonably can be expected.
6. All risks of damage or full or partial loss of the purchased goods transfers to the Other Party / Consumer immediately after delivery. The Other Party / Consumer continues to be liable towards Sectolin for keeping the delivered goods in a good condition, until the agreed price is paid in full.
7 The Other Party’s right to complain
1. The Other Party must inspect the goods at delivery or as soon as possible after delivery, to ensure that the goods delivered are in accordance with the agreement.
2. The Other Party must submit his complaints to Sectolin in writing within eight days of receiving the delivered goods, or without delay in the event of invisible defects or at least within eight days of discovering such defects. The Other Party will give Sectolin a reasonable term to remedy any defects in the delivered goods, without being entitled to any compensation. Failing prompt notification of a complaint, the right to complain lapses.
3. Even if the Other Party submits complains in time, he will still be obliged to take delivery of and pay for the goods ordered.
4. Goods may be returned to Sectolin only after its prior permission in writing. The Other Party has to ensure that the goods are returned to Sectolin in their original packaging (leave in tact, without added labels or forms, to the greatest possible extent), in a strong box. The receipt must also be returned with the goods.
8 The Consumer's right of withdrawal
1. The Consumer can dissolve the agreement with regard to the purchase of goods during a statutory 14-day cooling-off period, without having to state the reasons. The cooling-off period starts on the day after the Consumer has received the goods. During the cooling-off period, the Consumer will handle the goods with due care. The Consumer will inspect the product in the same way he would in a shop.
2. Dissolution is effectuated by completing the withdrawal form, which can be found on Sectolin’s website. Furthermore, the Consumer will return the goods to Sectolin within 14 days of notifying Sectolin of his withdrawal. Return shipments are made in accordance with Sectolin’s instructions, in the original condition and original packaging to the greatest possible extent. The Consumer pays the costs of returning the goods. The risk and onus of proof for correctly and timely exercising the right of withdrawal lie with the Consumer.
3. After Sectolin has received the Consumer’s notification of withdrawal, it will ensure that any advance payment made by the Consumer is refunded within 14 days. This period can be extended until Sectolin has received the goods returned by the Consumer.
4. The Consumer can dissolve the agreement with regard to the provision of services during the statutory 14-day cooling-off period, without having to state the reasons. The cooling-off period starts on the day on which the agreement is concluded. Dissolution is effectuated by completing the withdrawal form, which can be found on Sectolin’s website.
5. The following goods and services are excluded from the statutory right of withdrawal:
a. agreements for the provision of services, the execution of which has already commenced or has been completed;
b. agreements which Sectolin has already started executing after the Consumer having been notified of the fact that he will lose his right of withdrawal as a result of that and the Consumer having explicitly agreed to this;
c. the delivery of goods specifically manufactured for the Consumer;
d. the delivery of goods that are not suitable to be returned for reasons of health protection or hygiene and the seal of which has been broken after delivery;
e. goods that have been mixed with other goods after delivery.
1. Sectolin is not liable for any damage sustained by the Other Party/Consumer or a third party in connection with or arising from the contract concluded with Sectolin or in connection with or arising from (wrongful) acts by Sectolin. This exclusion of liability does not apply if the damage, sustained by the Other Party /Consumer or a third party, is a direct and exclusive result of intent or gross negligence or wilful recklessness by Sectolin or its managerial staff that are part of the company management team.
2. In so far as it is established in law that the limitation of liability described in paragraph 1 may not be upheld, the amount to be paid by Sectolin in respect of compensation shall never be higher than the amount Sectolin's insurer pays out in respect of the claim. If, in any given case, the insurer does not provide cover or does not pay out, and Sectolin is liable, their liability is - at the discretion of Sectolin - limited to redelivery of the faulty goods or to a refund of the invoice amount of the goods or services in question.
3. In all cases, Sectolin shall never be liable for indirect damage including loss of income or profits, consequential damage, damage due to delay in business activities and due to business interruption, damage due to loss of production, loss of working hours and/or labour costs incurred in vain. If required, the Counterparty/Consumer must take out their own insurance to cover these damages.
4. Any claim against Sectolin will lapse by the mere expiry of one year after the claim against Sectolin was established.
5. The Other Party is obliged to indemnify Sectolin, as well as any third parties engaged by them, against any claims from third parties in respect of compensation of damage as a result of the use or appliance of the goods or services delivered.
6. Notifications from Sectolin about quality or other properties of the goods are binding for Sectolin only if such notifications are made in writing with the clear intention of making a binding notification.
7. Relevant services and advice provided by Sectolin means that Sectolin has a best-efforts obligation, not a result obligation towards the Other Party / Consumer. Furthermore, advice provided by Sectolin never replaces the instructions / information leaflet included with the delivered goods. Furthermore, the Other Party / Consumer is personally responsible for checking if the purchased goods do not contain any prohibited substances that are on (for instance) a doping list.
8. Sectolin is never liable for any shortcoming in the fulfilment of its obligations by virtue of an agreement, any damage of any kind ensuing from that or any other unlawful acts on the part of Sectolin, its employees or third parties hired by it, insofar as this liability is the result of a situation of force majeure.
10 Force majeure and/or special circumstances
1. Sectolin will be able to invoke force majeure when, after conclusion of the agreement, Sectolin is prevented from fulfilling its obligations under this agreement or from carrying out the relevant preparations involved due, but not limited to war, the threat of war, civil war, riots, acts of war, lightning strikes, fire, water damage, floods, industrial strikes, sit-down strikes, lockouts, attachments, import and export impediments, government measures, machine defects, failures in the power supply, all this at both the company of Sectolin and that of third parties from whom Sectolin purchases the goods, as well as during storage or transport, under its own management or otherwise, including all other causes that arise through no fault or outside the control of Sectolin.
2. Sectolin is also entitled to invoke force majeure if the circumstance that prevents the (continued) fulfilment arises after Sectolin should have fulfilled its obligation.
3. If Sectolin has already fulfilled some of its obligations when the situation of force majeure commenced, or will only be able to fulfil its obligations partially, it is entitled to separately invoice the parts already performed or feasible and the Other Party is obliged to pay this invoice as if it concerned a separate contract. However, this does not apply if the part already performed or feasible does not have an independent value.
4. Sectolin is not obliged to fulfil any obligation in dealings with the Other Party, if it is hampered to do so as a result of a circumstance which cannot be attributed to Sectolin, nor if it is accountable for it by law, juristic act or generally accepted standards.
5. In the event of temporary force majeure, Sectolin is entitled to extend the delivery time or the period within which the work must be carried out by the time of the temporary obstruction to deliver or perform. If the situation of force majeure continues for more than two months, the Other Party is entitled to dissolve the agreement. However, this right lapses as soon as the situation of temporary force majeure is lifted and the right to dissolve has not been invoked yet.
1. Each party is obliged to observe secrecy towards third parties in respect of all data of a confidential nature, in whichever shape or form, from and about the other party.
2. Furthermore, the parties also assume the obligation to impose a similar duty of confidentiality on any third parties involved in the execution of the agreement.
3. Sectolin is not entitled to use the information made available by the Other Party / the Consumer for purposes other than those for which it was made available. An exception to this is when Sectolin appears on its own behalf in civil or criminal proceedings during which this information can be of importance.
12 Final provision
1. The accounts of Sectolin constitute full proof between the parties, subject to proof to the contrary.
2. All disputes that arise as a result of an agreement concluded between Sectolin and the Other Party - or a legal relationship between the parties - will be submitted to the competent court in Overijssel, Almelo location. In the event that the other party is a Consumer, all disputes that arise as a result of an agreement concluded between Sectolin and the Consumer - or a legal relationship between the parties - will be submitted to the competent court in the Consumer’s place of residence.
3. The agreement or agreements concluded between the parties are subject to Dutch law, with the exception of the Vienna Sales Convention.
4. In the event of a conflict between the Dutch text of these General Terms and Conditions of Purchase and the text of these in a different language, the Dutch text shall be binding.