SERENCO NEDERLAND B.V.
General Terms and Conditions for Sale, Delivery and Payment, hereafter referred to as the ‘Conditions’, of Serenco Nederland B.V.
Article 1. Definitions
1.1. In these Conditions, the terms below shall have the following meanings:
a. Serenco: Serenco Nederland B.V., having its registered office and principal place of business in Utrecht at Maarssenbroeksedijk 39.
b. Buyer: the party entering into an Agreement with Serenco.
c. Delivery: delivery of the products to the Buyer by Serenco FCA (Incoterms 2000) ex Serenco (storage) site. As from the moment of Delivery, the products shall be at the Buyer’s expense and risk.
d. Agreement: all the terms agreed on between Serenco and the Buyer regarding the sale and Delivery of products to the Buyer by Serenco.
e. Quote: a statement issued by Serenco to the buyer, free of obligation, stipulating the terms under which Serenco is prepared to supply products.
f. Product: the product that Serenco sells and delivers to the Buyer under an Agreement.
Article 2. Applicability
2.1. These Conditions shall be part of and applicable to all Quotes and to all Agreements between Serenco and the Buyer as well as to all new Quotes and Agreements and, furthermore, to all juristic and other acts by Serenco with, for or vis-à-vis the Buyer, including extracontractual obligations.
2.2. These Conditions shall apply to the exclusion of the Buyer’s (general) terms and conditions, unless Serenco has expressly accepted the Buyer’s (general) terms and conditions in writing. A general reference by the Buyer to its (general) terms and conditions shall not result in their applicability. Serenco expressly rejects the applicability of the (general) terms and conditions used by the Buyer.
2.3. Any arrangements between the Buyer and Serenco that deviate from the terms of the Conditions used by Serenco shall only be valid if they are agreed in writing and signed by both parties.
2.4. In the event of a conflict between any provisions of the Agreement concluded by Serenco and the Buyer and any provisions of these Conditions, the provisions of the Agreement shall take precedence.
2.5. If any of the provisions of these Conditions should be null and void or be annulled at any time, the remaining provisions of these Conditions shall remain fully applicable.
2.6. These Conditions have been filed with the Chamber of Commerce for the Central Netherlands in Utrecht, the Netherlands.
2.7. The Dutch text of these Conditions always takes precedence with regard to its interpretation.
Article 3. Quotes and Agreements
3.1. An order placed with Serenco by the Buyer shall be binding on the latter. All Quotes by Serenco shall be free of obligation. So long as the Buyer has not accepted the Quote in writing, Serenco shall be entitled to withdraw the Quote issued. Quotes shall be based on information supplied by the Buyer.
3.2. Unless the Quote states otherwise, Quotes shall be valid for a maximum period of 30 days, after which the Quote shall no longer be valid. The Buyer shall accept the Quote unconditionally and in writing by signing and returning it to Serenco.
3.3. Samples/trial copies shall only be provided for indicative purposes, and the Products shall not have to correspond exactly with them. Sale and/or use or consumption of the samples/trial copies shall not be permitted.
3.4. An agreement shall have been formed between Serenco and the Buyer when Serenco has received the Quote signed by the Buyer or when Serenco has confirmed the Buyer’s order in writing.
3.5. Contrary to the provisions of paragraph 3.4 of this article, if the Buyer stipulates any provisos for acceptance of the quote or makes any modifications to the same, the Agreement shall not be concluded until Serenco has notified the Buyer that it agrees to the nature and substance of the provisos or modifications. Section 6:225, subsection 3 of the Dutch Civil Code is expressly excluded.
Article 4. Delivery
4.1. Delivery of the Products shall be effected FCA (Incoterms 2000) ex Serenco (storage) site. As from that moment, the Products shall be at the Buyer’s expense and risk. If the Buyer would like Serenco to arrange transport for the Products and Serenco agrees to do so, the condition that the Products are delivered FCA (Incoterms 2000) ex Serenco (storage) site shall still fully apply. The Products shall be transported entirely at the Buyer’s expense and risk.
4.2. The delivery time stated by Serenco shall be indicative and shall not constitute a deadline. Failure to meet the delivery time shall not constitute a breach on the part of Serenco and shall not entitle the Buyer to dissolve the Agreement or cancel the order until Serenco has received written notice of default, granting Serenco a reasonable period of time within which to deliver the Products.
4.3. The Buyer shall be obligated to take delivery of the Products when they are delivered. If the Buyer refuses to take delivery of the Products, Serenco shall be free to decide what to do with the Products, without prejudice to the Buyer’s obligation to settle the purchase price.
Article 5. Payment and security
5.1. Payment for the Products supplied by Serenco shall be due within 30 days of the invoice date, without the Buyer being entitled to claim a set-off, discount, postponement or (personal) attachment.
5.2. In the event of overdue payment, the Buyer shall be in default without notice being required by the mere lapsing of the due date. As from that moment, the Buyer shall owe statutory interest (under Section 6:119a of the Dutch Civil Code) increased by 2.5% default interest per annum. Any and all other (collection) costs incurred by Serenco shall be payable by the Buyer. The extrajudicial collection costs equal at least 15% of the amount owed by the Buyer, subject to a minimum of €250 plus VAT for each collection. The foregoing shall not prejudice Serenco’s right to recover the actual damage incurred from the Buyer.
5.3. The payments made by the Buyer shall be used firstly to settle costs, secondly to settle the interest due and thirdly to settle the oldest outstanding invoices due.
5.4. Serenco shall retain the right to request prepayment during the performance of the Agreement.
5.5. Serenco shall at all times retain the right to request appropriate security from the buyer. The Buyer shall be required to provide this security on request. Serenco shall be entitled to defer the fulfilment of its obligations until the requested security has been provided. 5.6. All claims by Serenco shall be immediately exigible, without notice of default being required, if:
a. payment has not been made by the due date;
b. bankruptcy, a moratorium or debt rescheduling arrangement is applied for for the Buyer;
c. the Buyer is declared bankrupt, the Buyer has been granted a moratorium, a debt rescheduling arrangement has been imposed on the Buyer or the Buyer has died;
d. any of the Buyer’s property or receivables are attached;
e. the Buyer sells or terminates its business in whole or in part;
f. the direct or indirect control of the Buyer’s business changes;
g. the Buyer fails to fulfil its obligations to Serenco.
5.7. In the events described in Article 5.6, Serenco shall be entitled to:
a. defer the fulfilment of its contractual obligations until the Buyer has fully met its obligations;
b. dissolve the Agreement in whole or in part, without notice of default or court intervention being required; without prejudice to Serenco’s right to fulfilment and/or damages.
Article 6. Retention of Title
6.1. Serenco shall retain the title to all Products delivered or to be delivered to the Buyer until the Buyer has fully settled all claims that Serenco has or may acquire against the Buyer on any grounds whatsoever, including any claims ensuing from the non-fulfilment of the aforementioned claims. As long as Serenco’s claims have not been settled, the Buyer shall not be permitted to market or process or have a third party process the Products other than as part of its normal business operations.
6.2. If a Product supplied by Serenco to which Serenco has retained the title is imported into another member state of the European Union, the laws of that member state shall govern the retention of title if the relevant provisions of those laws are more favourable for Serenco.
6.3. The Buyer shall be obligated to store the Products that have been delivered subject to retention of title with due care and as identifiable property of Serenco. If the Buyer does not meet this obligation, the Buyer shall owe a contractual penalty that is not open to judicial mitigation equalling twice the balance of the amounts that the Buyer owes Serenco.
6.4. Serenco shall be entitled to repossess the Products that have been delivered subject to retention of title and are still present on the Buyer’s premises if the Buyer defaults on its payment obligations or has or is about to have financial difficulties. The Buyer shall be required to grant Serenco unimpeded access to the premises and/or buildings to inspect the Products and/or exercise its rights at any time.
Article 7. Intellectual and industrial property rights
7.1. Unless otherwise agreed in writing, on issuing a quote or entering into an Agreement, Serenco shall retain all intellectual and industrial property rights to the Products to be delivered under the Agreement.
7.2. The Buyer shall be solely entitled to use these Products for the fulfilment of its obligations under the Agreement. The Buyer guarantees that it shall not infringe intellectual and/or industrial property rights of Serenco or third parties and shall indemnify Serenco against any and all third-party claims for damages or otherwise on account of infringement of their intellectual and/or industrial property rights.
7.3. The Buyer shall not be permitted to remove and/or change any copyright, trademark, trade name or intellectual and/or industrial property right notices from, on or in products, brochures and software and/or other items of Serenco.
Article 8. Guarantee / Complaints
8.1. The Products to be supplied by Serenco shall meet the usual standards and requirements that may reasonably be set for them at the time of delivery and during normal use. Serenco provides a one-year guarantee against design, material and/or manufacturing faults from the moment of delivery.
8.2. Minor tolerances in quality, size or finish that are customary in the industry are not covered by the guarantee, give no right to file a complaint and constitute no grounds for dissolution or damages.
8.3. All guarantees shall be voided if a defect is caused by injudicious or inappropriate use, such as incorrect storage or maintenance by the Buyer and/or third parties or in the event that the Buyer or third parties, without permission from Serenco, have modified or attempted to modify the Product, attached other items to it that should not be attached or if the Product is not processed or treated in accordance with instructions.
8.4. The Buyer shall be required to check the Products supplied by Serenco carefully for any defects or shortcomings immediately after Delivery. Any visible defects must be reported to Serenco in writing within eight days of Delivery. Hidden defects must be reported to Serenco in writing within fourteen days of detection. If a complaint is not filed on time, the Buyer shall forfeit the right to dissolve the Agreement in whole or in part, demand performance and/or claim damages.
8.5. If the Buyer files a complaint on time and demonstrates that the defects or shortcomings are a result of an attributable failure of Serenco to perform any of its obligations towards the Buyer, Serenco shall ensure – at its discretion – that the Product is repaired or replaced free of charge, offer a discount on the price or take other measures.
8.6. A complaint filed by the Buyer shall not defer its payment obligation towards Serenco. The Buyer shall be obligated to take delivery of the other Products and to pay for them.
Article 9. Returns
9.1. Returns shall only be accepted if they have been approved by Serenco in advance and if the Products are offered in a good condition and in their original packaging.
Article 10. Force Majeure
10.1. Any failure on the part of Serenco to perform any of its obligations under the Agreement as a result of force majeure shall not entitle the Buyer to dissolve the Agreement and/or claim damages. Force majeure shall be understood to mean any and all circumstances beyond Serenco’s control that render performance of the Agreement fully or partially impossible, temporarily or permanently. Instances of force majeure are: imminent risk of war; war; mobilisation; commotion; riots; fire; flooding; lightning strike; pandemic; acts of war; earthquake; water damage; sit-down strikes; import and export restrictions; government measures; interruptions in the supply or provision of electricity, gas, water or internet services; breaches or unlawful acts on the part of Serenco’s suppliers or third parties hired by Serenco.
10.2. Serenco shall be entitled to defer the fulfilment of its obligations as long as the force majeure lasts without the Buyer being entitled to dissolve the Agreement or claim damages. If the period of force majeure lasts longer than two months, Serenco and the Buyer shall be entitled to dissolve the Agreement without being liable for damages to the other party.
Article 11. Liability
11.1. In the event that the Buyer demonstrates a breach of contract on the part of Serenco, Serenco’s liability shall be limited to the amount of the direct loss suffered by the Buyer, to be demonstrated by the latter. Liability for direct loss shall in any event be limited to once the invoice value of the defective Product, subject to a maximum of €100,000.
11.2. Moreover, Serenco shall not be liable for any damage or losses:
a. if the Products are used for purposes other than for which they are suited on the basis of the information provided by Serenco and for which they are normally used;
b. if the Products are processed and/or treated incorrectly;
c. if the Products are exposed to abnormal conditions;
d. resulting from non-functional properties of the Products.
11.3. Serenco shall under no circumstances be liable for indirect loss, including trading loss, consequential loss, loss of turnover or loss of goodwill, suffered by the Buyer, irrespective of the cause. The Buyer guarantees that it shall stipulate this provision in relation to its buyers or third parties. Serenco shall also be entitled to invoke this provision in relation to third parties.
11.4. The Buyer shall indemnify Serenco against liability to third parties.
11.5. All claims for damages filed against Serenco shall lapse after a period of one year or any shorter statutory period, counting from the moment the claim arose.
11.6. Serenco shall under no circumstances be liable if the Buyer is in default towards Serenco.
Article 12. Disputes
12.1. All Quotes and Agreements governed by these Conditions, as well as any ensuing obligations and disputes shall be solely governed by Netherlands law, subject to Article 6.2 of these Conditions, even if an obligation is fulfilled entirely or partially abroad or if a party involved in the legal relationship is domiciled abroad. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention 1980) is expressly excluded.
12.2. Any disputes arising or ensuing from an Agreement concluded with Serenco shall be solely brought before the competent court in the district of Amsterdam, the Netherlands.