ARTICLE 1 – GENERAL
1. These terms and conditions are applicable to all offers and quotations deriving from Diga Colmore Venlo B.V., as well as to all agreements between Diga Colmore Venlo B.V. and other parties.
2. In these terms and conditions, “other party” refers to every (legal) person that has entered an agreement with Diga Colmore Venlo B.V., or wishes to enter one.
3. Deviations of these terms and conditions are only binding if, and for as far as, these have been confirmed by Diga Colmore Venlo B.V. in written form.
4. The client’s general conditions of purchase are not applicable, unless these have been accepted by Diga Colmore Venlo B.V. in written form, and will then only be applicable for the purpose of that transaction. Future transactions will not automatically take place under those same conditions.
ARTICLE 2 – OFFERS
1. All offers made will remain valid for a period that is to be indicated by Diga Colmore Venlo B.V.
2. An offer is only binding if it has been confirmed in written form.
3. Sending offers and/or leaflets, price lists etcetera, do not oblige Diga Colmore Venlo B.V. to delivery or acceptance of an order.
ARTICLE 3 – ARRANGEMENTS
1. Arrangements and/or agreements with subordinates of Diga Colmore Venlo B.V. will not bind the latter without giving a written confirmation. In this situation, under ‘subordinates’ all staff members and employees without authority are meant.
ARTICLE 4 – AGREEMENT
1. Subject to the following conditions, an agreement will be created initially after the other party has accepted a quotation from Diga Colmore Venlo B.V. in written form, or Diga Colmore Venlo B.V. has accepted an assignment from the other party in written form.
2. The agreement should be accurate and complete. If the accuracy of the content is not be disputed within five days after the written confirmation of Diga Colmore Venlo B.V., or the written acceptance of the supplying of the assignment by the other party, both parties are bound by the agreement.
3. Possible additional agreements and/or promises by Diga Colmore Venlo BV, their staff members, or on the behalf of Diga Colmore Venlo B.V. made by their salespersons, agents, representatives or other intermediaries that are made afterwards, only bind Diga Colmore Venlo B.V. if these have been confirmed by them in written form.
4. Diga Colmore Venlo B.V. holds the right to demand assurance at the moment of entering the agreement or after, that payments and other obligations will be fulfilled by the other party, before (further) offering their services.
5. For all orders, a down payment of 50% of the purchase price should be made. The remaining sum should be paid before the delivery. There will be no delivery without a full payment.
6. Diga Colmore Venlo B.V. holds the authority to- if they deem this necessary or desirable – engage third parties for a correct execution of the agreement, for which the costs will be on the account of the other party in accordance with the price quotations supplied.
7. Standard commercial quality material will be used, unless special demands have been made and these haven been explicitly accepted by Diga Colmore Venlo B.V. in written form.
ARTICLE 5 – ADJUSTMENTS TO THE ASSIGNMENT
1. Adjustments to the original order, of whatever nature, which are made by the other party in written or oral form, that result in higher costs than is calculated in the original price quotation, will be charged extra to the other party by Diga Colmore Venlo B.V.
2. If adjustments are made to the manner of execution by the other party and are made after supplying the assignment, Diga Colmore Venlo B.V. should be notified about these in written form in time. If these are communicated orally or by telephone, the risks of applying these adjustments are on the account of the other party.
3. As a result of adjustments, the agreed price may be higher, or the delivery time of Diga Colmore Venlo B.V. may be exceeded. Implementing an adjustment by the other party implies an explicit acceptance of a possible rise in price or exceeding the delivery time as well.
ARTICLE 6 – PRICES
1. All prices exclude VAT and are ex works, unless otherwise has been explicitly agreed upon in written form.
2. The prices, as these are recorded, are correct and binding. The prices as indicated on the products cannot be construed to create any rights.
3. In the instance of an unpredictable rise of one or more of the price determining factors, Diga Colmore Venlo B.V. holds the right to raise the order price as such, for which the available statutory regulations need to be taken into consideration, provided however that future increases that are already known should be indicated in the order confirmation.
ARTICLE 7 – CANCELLATION
1. In the instance of failure to pay a due payment, request of suspension of payment by the other party, bankruptcy of the other party, or liquidation of the company of the other party, Diga Colmore Venlo B.V. holds the right to cancel the purchase agreement or the part of which still needs to be executed, without any notice of default, unabated their right to compensation.
2. If the other party wishes to cancel the assignment, this should be done by registered post. Cancellation will involve expenses, depending on the order. These expenses will be directly compensated with the down payment that is made with the order. The cancellation costs are:
-25% of the purchase sum if the order concerns a regular product or regular products.
-50% of the purchase sum if the order concerns a special product that needs to be ordered. When purchasing the product, the client will be informed about the order that needs to be made.
ARTICLE 8 – DELIVERY
1. Unless otherwise agreed, the time of delivery will be the moment at which the goods leave Diga Colmore Venlo B.V.’s company/warehouse. Delivery will only be free when this, and as far as this, has been indicated by Diga Colmore Venlo B.V., on the confirmation of the assignment or any other way.
2. The delivery time is always an estimation, unless otherwise has been explicitly agreed upon in written form.
3. All due transport costs, import and export duties, railway station storage, monitoring and clearance charges, taxes and other charges, are on the account of the other party.
4. Goods are dispatched on the account and risk of the other party, even when these are delivered on behalf of Diga Colmore Venlo B.V. This shipment will count as delivery.
5. Delivery will be made to the first door. The other party is responsible for receiving and taking the goods inside.
6. When part of the order is ready, Diga Colmore Venlo B.V. may decide to send this part or to wait until the entire order is ready. In the first instance, the invoices that apply to the partial delivery need to be paid within the term of payment, as is added to these general terms and conditions, unless otherwise agreed in written form with the other party.
7. When the goods have not been received by the other party after the time of delivery has expired, these are stored at their disposal and risk, and the other party is obliged to retrieve their order as soon as possible.
8. If Diga Colmore Venlo B.V. is unable to answer to their obligations, they will immediately notify the other party and inform them about the expected period of time with which the aforementioned term of delivery will be exceeded.
9. The other party holds no right to any compensation in the instance of exceeding the indicated time of delivery. The purchaser may not cancel the order or refuse the receipt and/or payment of the goods due to exceeding the delivery time.
ARTICLE 9 – TRANSPORT/RISK
1. The manner of transport, shipment, packaging, etc., if no further instructions have been given concerning this by the other party, it will be decided by Diga Colmore Venlo B.V. following good business practices, without being responsible for this. Any specific desires of the other party concerning the transport and shipment are only carried out if the other party has agreed to be willing to be responsible for the extra costs of this, and willing to accept the possible risks.
ARTICLE 10 – RECEIPT/RETURN OF GOODS
1. If the other party refuses to receive the goods, or returns these to Diga Colmore Venlo B.V. without receiving a written agreement for this from Diga Colmore Venlo B.V., Diga Colmore Venlo B.V. holds the right to store the returned goods on the account of the other party and to keep these at the other party’s disposal. No proof of accuracy of any complaints can be derived from this.
ARTICLE 11 – RESERVATION OF OWNERSHIP
1. The delivered goods will remain the property of Diga Colmore Venlo B.V., until the moment of full payment of these goods by the other party.
2. In the instance of failure to pay a due payment, suspension of payment, request for suspension of payment, bankruptcy, being put under legal restraint, the event of death or liquidation of the goods of the other party, Diga Colmore Venlo B.V. will hold the right to cancel the order, or the part of the order that still needs to be delivered, without any notice of default, and to retrieve the goods already delivered, that may or may not be fully paid for, as their property, without prejudice to their rights to demand compensation for any loss or damage. In these instances, every claim made by Diga Colmore Venlo B.V. towards the other party is directly and immediately claimable. The costs of retrieving or reclaiming the goods are on the account of the other party.
ARTICLE 12 – RESPONSIBILITY
1. Save for the responsibility that Diga Colmore Venlo B.V. has under mandatory legal conditions and general applicable rules of reasonableness and fairness, Diga Colmore Venlo B.V. will not be responsible for costs, damage and interests that may be directly or indirectly caused by:
– A non-attributable failure to perform, as is further described in these terms and conditions
– Acts or negligence of the other party, their subordinates, or other persons that work on their behalf
– Mistakes and/or flaws that have not been noticed by the other party when they accepted the concerning design
2. The liability of Diga Colmore Venlo B.V. never goes beyond that of their suppliers.
3. Diga Colmore Venlo B.V. cannot be held liable for delays in the instance of, for example, damage to the delivered goods during transportation that was not provided by them.
4. Diga Colmore Venlo B.V. does not accept any responsibility for damage, in whatever way, as a result of the incorrect and/or improper use of their delivered goods. As incorrect and/or improper use, is meant not executing or in a not correct way executing the mounting instructions.
5. The liability of Diga Colmore Venlo B.V. never exceeds the sum of their insurance.
ARTICLE 13 – NON-ATTRIBUTABLE SHORTCOMING IN PERFORMANCE
1. Under non-attributable shortcomings the following is meant: A shortcoming that cannot be attributed as a fault of Diga Colmore Venlo B.V., and that would neither by law, legal action or would not generally be accepted by society to be deemed as their fault. Causes of non-attributable shortcomings are, amongst others, strikes, excessive sick leave of Diga Colmore Venlo B.V.’s staff, difficulties in transport, extreme weather conditions, fire, governmental measures, at least including import and export prohibitions, quota restrictions and operational failures at Diga Colmore Venlo B.V. or at their suppliers, as well as malpractice of their suppliers, which prevents Diga Colmore Venlo B.V. from answering to their obligations towards the other party.
2. If Diga Colmore Venlo B.V. deems the cause of the non-attributable shortcoming of a temporary nature, Diga Colmore Venlo B.V. holds the right to postpone the execution of the agreement for that period of time, until the circumstances that cause the shortcoming in the execution are resolved.
3. If the situation of the non-attributable shortcoming is permanent, the parties can make an arrangement for the cancellation of the agreement and the associated effects of it.
4. Diga Colmore Venlo B.V. holds the right to appeal to a non-attributable shortcoming if the circumstances that cause the shortcoming in the process of answering to the obligations occurs after delivery should have been made.
5. Diga Colmore Venlo B.V. cannot be held liable for damage that may be caused by the other party if they cannot answer to their obligations (in time) due to a non-attributable shortcoming.
ARTICLE 14 – COMPLAINTS
1. The other party should check the goods (or let them be checked) upon collection/delivery of them. The other party should check if the delivered goods are in accordance with the agreement, meaning:
– the correct products have been delivered
– the number of the delivered products is equal to that in the agreement
– the delivered goods answer to the agreed quality demands or – if these are lacking
– the demands that can be made for normal use and/or purposes
2. Complaints due to the observable facts upon receipt (see 14-1) should be indicated on the receipt/shipment document, under the penalty of losing the right to file complaints.
3. Complaints about shortcomings that are not immediately observable should be communicated by the other party to Diga Colmore Venlo B.V. in written form, within five working days after receipt.
4. The right of complaint of the other party expires if the other party fails to allow Diga Colmore Venlo B.V. to check the products concerned in their original state. If the complaint is valid, Diga Colmore Venlo B.V. will choose to either repair the defects found, or to replace the products delivered free of charge if the original products delivered are returned.
5. Diga Colmore Venlo B.V. only provides a warranty on construction defects and/or technical failures. Shrinking/ripping or similar damage to wooden products is not covered by the warranty, since it is nature for wood to warp. For all other products the principle “sold as seen” is applicable, unless otherwise has been agreed upon.
6. No complaints can be filed about products that are for sale.
7. All glass products should be checked directly on receipt. After that, complaints will not be processed.
ARTICLE 15 – PAYMENT
1. Unless otherwise agreed, the full purchase sum should be paid when the assignment is confirmed. Diga Colmore Venlo B.V. does not accept any cheques.
2. Every payment of the other party is solely for fulfillment of the interest owed, as well as the collection and/or administrative costs, and will then be deducted from the earliest outstanding amount.
3 In the instances that the other party:
1. declared bankrupt, makes assignment, files a request to postpone payment, or possession is taken of part of all of their belongings
2. dies or is put under guardianship
3. fails to answer to one of their obligations under Law or these terms and conditions
4. fails to pay an invoice sum, or part of it, within the provided term.
5. proceeds to strike or transfer their company, or an important part of it, including to enter their company in a new or already existing partnership, or proceeds to change the target of their company In one of the aforementioned situations, Diga Colmore Venlo B.V. holds the right to terminate the agreement without needing to give any notice of default or legal mediation, to fully and directly claim any payment due from the other party based on the deliveries made by Diga Colmore Venlo B.V., and without any warning or notice of default being necessary, all unabated the right of Diga Colmore Venlo B.V. to costs, damages and interests.
ARTICLE 16 – INTERESTS AND COSTS
1. If the payment has not been made within the term that is indicated in the next article, the other party is legally in default from the due date, and interest of 5% per (part of a) month will be added to the sum due.
2. All judicial and extrajudicial costs are on the account of the other party.
3. The extrajudicial collection fees are at least 15% of the payment due by the other party, including the aforementioned interest, with a minimum of € 150.- .
ARTICLE 17 – DISPUTES
1. Dutch law is applicable to all offers and agreement, including those with other parties that are living or established abroad.
2. All disputes that may arise between the other party and Diga Colmore Venlo B.V. will be handled by the competent court of the business location of Diga Colmore Venlo B.V.