General Terms and Conditions
General Terms and Conditions of Sale and Delivery
Spinder Design BV
Chamber of Commerce registration number in Leeuwarden 01059967
Article 1 General/Applicability
These terms and conditions of sale and delivery apply to all offers and to all agreements for the performance of work and/or the purchase and sale of Spinder Design BV, established in Drachten, hereinafter referred to as Spinder.
The terms and conditions have been filed with the Chamber of Commerce in Leeuwarden under number 01059967.
The client/buyer will hereinafter be referred to as the counterparty.
Any reference to its own general terms and conditions by a counterparty at any stage of the formation of the agreement with us is expressly rejected. To the extent that they conflict with written purchasing conditions or other conditions of the counterparty, our conditions shall prevail, except in cases and to the extent that conditions of the counterparty have been expressly accepted by us in writing.
In the event of a continued relationship between Spinder and the counterparty, these terms and conditions need not be declared applicable again on a recurring basis.
Declaration of the applicability of these terms and conditions implies the express rejection of the terms and conditions, under whatever name, of the counterparty.
Article 2 Offers
All offers, quotations, price lists, delivery times, etc. from Spinder are without obligation, even if they contain a validity period.
Article 3 Formation of Agreements
An agreement based on a quotation issued by Spinder is only concluded after Spinder has confirmed acceptance thereof by the other party in writing, or by Spinder having commenced the execution of the agreement.
Offers or commitments made by representatives of Spinder are binding if and to the extent that they have been confirmed by Spinder.
Amendments, additions, and/or extensions to an assignment provided by the other party are only valid if they have been agreed upon in writing and signed by both parties.
Article 4 Delivery/Work Performed
1. Delivery of products takes place ex warehouse Spinder; from the moment of delivery, the goods are at the risk of the counterparty.
2. Delivery is not made free of charge. Stated delivery times and the period within which work must be performed can never be considered as a firm deadline, unless expressly agreed otherwise.
3. The Counterparty is obliged to take delivery of the purchased goods at the moment they are delivered to him, or at the moment they are made available to him in accordance with the agreement. If it proves impossible to deliver the goods to the Counterparty at the agreed time, the goods shall be stored at the expense and risk of the Counterparty. In the event that delivery at the agreed time is not possible, the Counterparty shall be liable for all additional costs, including in any event any waiting time – at the customary rate – and/or storage costs.
4. If agreed, delivery shall take place once at an address specified by the other party and at an agreed time. The other party shall then guarantee good accessibility to the place of destination/unloading point and is responsible for unloading.
5. Delivery of work performed by Spinder is effected by Spinder reporting to the Counterparty that the work to be performed has been completed or that the result of the work is ready for acceptance.
Article 5 Samples and Examples
Samples or models included by Spinder in catalogues, brochures, etc., or shown by it, are for illustrative purposes only; the quality of the goods to be delivered may differ from these, unless it has been expressly agreed in writing that delivery will be made in accordance with the sample shown.
Article 6 Delivery time
1. An agreed delivery time is never a firm deadline, unless expressly agreed otherwise. In the event of late delivery, the counterparty must therefore notify Spinder in writing of the default.
2. The agreed delivery time shall commence on the later of the following dates: [1] the date of conclusion of the agreement, [2] the date Spinder has all the formalities, documents, permits, etc. necessary for the execution of the agreement, or [3] the date the agreed payment security is received.
3. If the Other Party is in any way negligent in the performance of the agreement, as a result of which Spinder's work [may] be delayed, the agreed delivery time shall be deemed to be suspended for the same period as the delay in Spinder's work.
4. Spinder is permitted to deliver goods or services in installments. Each partial delivery shall be considered a separate agreement, which may be invoiced separately by Spinder.
Article 7 Transport
1. Unless otherwise agreed, shipment of ordered goods shall take place in the agreed manner, at the expense and risk of the other party.
2. Spinder is in no way liable for damage of any nature or form whatsoever (including consequential damage) related to the transport.
Article 8 Advertisements
1. The counterparty is obliged to check immediately upon receipt of the goods whether the correct goods have been delivered and whether the delivered goods correspond in quality and/or quantity to what has been agreed. If visible defects are found, this must be noted on the consignment note and/or delivery receipt and brought to Spinder's attention in writing within 72 hours. For other complaints, that period is 8 days.
2. Complaints do not suspend the counterparty's payment obligation or its obligation to take delivery of placed orders.
3. Items may only be returned after prior written permission from Spinder.
4. If the goods have changed in nature and/or composition, have been processed, modified, damaged, or repacked in whole or in part after delivery, any right of complaint shall lapse.
Article 9 Force Majeure
1. Force majeure is understood to mean circumstances that prevent performance of the agreement – permanently or temporarily – and that are not attributable to Spinder. This includes unforeseeable circumstances as a result of which suppliers, or other third parties on whom Spinder depends, are unable to perform.
2. Spinder also has the right to invoke force majeure if the circumstance preventing [further] performance occurs after Spinder should have fulfilled its obligation.
3. During force majeure, Spinder's delivery and other obligations shall be suspended. If the period during which Spinder is unable to fulfill its obligations due to force majeure lasts longer than 3 months, both parties shall be entitled to dissolve the agreement, without any obligation to pay compensation arising in that case.
4. If, upon the occurrence of force majeure, Spinder has already partially fulfilled its obligations or can only partially fulfill its obligations, it is entitled to invoice the part already delivered or the deliverable part separately, and the Counterparty is obliged to pay this invoice.
Article 10 Liability/Warranty
1. Spinder performs its duties as may be expected of companies in its industry, but accepts no liability whatsoever for damage, including consequential damage, resulting from its actions or omissions in the broadest sense of the word, except insofar as such damage is attributable to its gross negligence and/or intent.
The same restriction applies with regard to employees and/or third parties used by Spinder in the performance of its activities.
2. If the delivered goods show apparent material and/or manufacturing defects which were demonstrably already present at the time of delivery, Spinder undertakes to replace those goods free of charge.
Spinder guarantees the usual normal quality and soundness of the delivered goods; their actual lifespan can never be guaranteed.
3. Without prejudice to the provisions of the other paragraphs, Spinder's liability – on whatever grounds – shall be limited to the amount of the net sales price of the delivered goods or the price for the work performed. Payment thereof shall constitute the sole and complete compensation for damages.
4. The period within which Spinder can be held liable for compensation for damages is limited to 6 months.
5. The Counterparty forfeits its rights against Spinder, is liable for all damages, and indemnifies Spinder against any third-party claims for compensation for damages if and to the extent:
a. the aforementioned damage was caused by incompetent and/or use contrary to instructions and/or incompetent storage of the delivered goods by the Counterparty; b. the aforementioned damage was caused because the Counterparty did not act in accordance with the instructions and/or advice provided by Spinder.
c. the aforementioned damage was caused by errors/inaccuracies in data (materials), information carriers, etc. provided to and/or prescribed to Spinder by or on behalf of the Counterparty.
6. The Counterparty also indemnifies Spinder against all potential claims regarding ICT deliveries at a 0-rate.
Article 11 Prices
1. Prices charged by Spinder for goods to be supplied by it apply to delivery ex Spinder's warehouse and are exclusive of VAT. Prices charged by Spinder are in euros.
2. If Spinder has agreed on a price with the Counterparty, Spinder is nevertheless entitled to unilaterally increase the price in such a way that Spinder may pass on increases in wages, material costs, and third-party costs. However, if the price increase amounts to more than 7.5%, the Counterparty has the right to dissolve the agreement for a period of 10 days following notification of this price increase.
Article 12 Payment
1. Payment must be made within 14 days of the invoice date. Payment must be made without deduction, set-off, or any form of suspension.
2. After the expiry of the term referred to in paragraph 1, the Counterparty shall be in default without any further formality. From the moment of default until the moment of payment, the Counterparty shall owe interest on the amount due at a rate of 1% per month or part thereof.
3. Notwithstanding the provisions of paragraph 1, costs to be charged by Spinder to the Counterparty, which are for the account of the Counterparty pursuant to the Agreement and/or these Terms and Conditions, shall be paid to Spinder immediately after invoicing.
4. Payments made by the Counterparty shall always be applied primarily to the accrued interest and costs, and secondarily to the oldest outstanding invoices, even if the Counterparty states that the payment relates to another invoice.
Article 13 Collection
1. If the Counterparty is in default or in breach of its obligations, all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the Counterparty. In any event, the Counterparty shall owe an amount equal to 15% of the invoice amount, with a minimum of € 500. If Spinder demonstrates that higher costs were necessarily incurred, these shall also be eligible for reimbursement.
2. If partial or full compensation is obtained through legal proceedings, the Counterparty shall owe Spinder the costs incurred by Spinder in that regard in all instances.
Article 14 Ownership of Designs
1. Spinder expressly reserves ownership of all industrial and intellectual property rights regarding the delivered goods, but also regarding the content and form of reports, drawings, designs, software models, and the like.
2. The Counterparty is entitled to modify the delivered goods, in whole and/or in part, or to affix a different mark to them, only after obtaining prior written consent from Spinder.
3. Reports and other documentation issued by Spinder may be published by the Counterparty only verbatim and in their entirety. Prior written permission from Spinder is required for publication in any other form.
Article 15 Retention of title
1. All goods delivered or to be delivered by Spinder, or the result of work performed or to be performed, shall remain its property until full payment of all amounts due to Spinder to claim from the Counterparty in this regard.
2. Until ownership of the delivered goods and/or the result of the work performed has passed in full to the Counterparty, the Counterparty is not entitled to transfer these to third parties, whether or not as security. Nevertheless, the Purchaser is entitled to resell the delivered goods in the normal course of its business.
Article 16 Bankruptcy, Power of Disposal, etc.
The agreement concluded between Spinder and the Counterparty shall be dissolved without judicial intervention and without notice of default being required, at the time when the Counterparty is declared bankrupt, applies for provisional suspension of payments, or loses the power of disposal and/or legal capacity with respect to its assets or parts thereof through guardianship or otherwise.
Article 17 Applicable Law/ Competent Court
1. The relationship between Spinder and the counterparty is governed by Dutch law.
2. Any disputes shall be adjudicated by the competent court in Leeuwarden. Spinder is, however, entitled—at its own discretion—to summon the counterparty before any court otherwise competent under law or treaty.
Article 18 Conflict with Statutory Provisions
If any [part of any] of these conditions is inapplicable or contrary to public order and/or law, this shall not affect the applicability of the remaining provisions.
Article 19 Amendment of the Terms and Conditions
Spinder is authorized to make changes to these terms and conditions. These changes will take effect at the announced time of entry into force. Spinder will send the amended terms and conditions to the other party in a timely manner.
