General terms of delivery

General delivery conditions of Vacu Vin B.V., with its registered office in Delft, and all companies affiliated with Vacu Vin B.V. (jointly and individually referred to as: “Vacu Vin”).

Terms of Delivery Vacu Vin B.V. 09-2017 – Applicable to all of its affiliated companies.

 

  1. DEFINITIONS

 

  • Customer: the party that concludes Agreements with VV or contacts VV for this purpose in any way.
  • General Terms and Conditions: The present general terms and conditions that apply to all Offers and Agreements between VV and the Customer.
  • Offers: Any form of an offer made by or on behalf of VV to the Customer including but not limited to offers, quotations and commitments.
  • Order Confirmation: the written confirmation in which the order for the supply of goods and/or the provision of services by VV to the Customer is laid down.
  • Agreement: an Agreement concluded by the Customer with VV comprising the Order Confirmation and the provisions of these General Terms and Conditions.

 

  1. APPLICABILITY

 

  • These General Terms and Conditions apply to all Agreements under which VV delivers goods and/or provides services of any kind to the Customer and to Offers and Order Confirmations issued by VV.
  • Deviations from these General Terms and Conditions are only binding if and to the extent VV has agreed thereto in writing.
  • The applicability of any general terms and conditions applied by the Customer is rejected expressly.
  • If one or more provisions and/or stipulations of the General Terms and Conditions and/or the related Agreement are invalid and/or non-binding and/or in contravention of any provision of mandatory law, the General Terms and Conditions as well as the related Agreement will remain fully in effect unaltered, while as regards the provisions that are void, declared void or can be declared void VV will adopt new provisions and/or stipulations in consultation with the Customer, which will approach the purport of the provisions and/or stipulations that are void or declared void as much as possible.

 

  1. FORMATION AGREEMENT

 

  • An Offer is considered accepted:
    1. if VV receives back a copy of the Offer signed by the Customer within one month after the Offer was issued by; or
    2. in the event VV commenced performance of the Agreement at the request of the Customer.
  • Any Offer of any kind or by any name applies as an offer without obligation and an agreement is not formed until after VV has confirmed an order based on an Offer or otherwise from the Customer in an Order Confirmation. VV reserves the right to reject or accept orders. The Agreement is formed at the moment VV confirms the order orally if the Order Confirmation cannot be provided in writing (digitally or otherwise) as a result of the urgency of the situation.
  • If an Agreement has been formed in the manner described in article 3.3 b) and c) it will be deemed to have commenced against the VV rates that apply at that time.
  • Amendmends to the Order Confirmation are only valid if they have been approved in writing by both parties.

 

  1. DELIVERY AND RISK

 

  • The delivery times or periods stated are always stated by approximation and are not strict deadlines unless expressly agreed otherwise. This means that exceeding the delivery period alone cannot be considered to be a default on the part of VV.
  • VV will deliver in the manner agreed in writing; VV has the right to make full or partial delivery by means of delivery (of goods and/or services) by third parties.
  • The risk of the goods passes to the Customer at the moment these have been delivered in a legally valid manner and/or physically and have thus been placed under the control of the Customer or a third party designated by the Customer.
  • The Customer is obliged to take receipt of the goods at the agreed location(s) at the moment VV delivers them or has them delivered, or at the moment they are made available to the Customer in accordance with the Agreement. If the Customer fails to do so, the costs that arise therefrom are for its account.
  • If the Customer still has any payment obligation towards VV, in particular if VV invoices have not yet been paid by the Customer in full or have been paid in part, VV will have the right to suspend the payment obligation until the Customer has complied with all of its obligations.
  • VV always has the right to demand sufficient security from the Customer for compliance with the Customer’s payment obligations before making delivery or continuing to make delivery.

 

  1. PRICES AND PAYMENT

 

  • All prices stated by VV are exclusive of turnover tax.
  • VV reserves the right to adjust its prices once per year.
  • All invoices must be paid without discount or compensation within 14 days after the invoice date, unless a different payment term has been agreed.
  • Deviations from the payment condition as described under 5.3 must be requested in writing from the board in advance. The deviation does not apply until it has been approved in writing by the board.
  • In case of a deviation from the payment condition described under 5.3, a surcharge on the net invoice price of 1.50% per 30 days applies as a rule, which will be stated separately on the invoice.
  • If VV considers there is reason to do so, it will have the right to demand that the Customer pays in advance, makes an advance payment or has a bank guarantee issued by a reputable financial institution in the Netherlands in order to cover (initial) costs and/or (future) invoices. If the payment term is exceeded, the Customer will owe interest equivalent to statutory interest as laid down in Article 6:119a BW, increased by two percent, as from the due date of the invoice without requiring any notice of default.
  • The Customer is in default by operation of law without requiring further notice of default if payment is not made within the term set. If this is the case, the Customer will owe default interest amounting to 1% of the payable principal per month in which connection a part of the month is counted as one month. If the payment period is exceeded, the Customer also owes all judicial and extrajudicial collection costs and VV claims the extrajudicial collection and other costs that were actually incurred or, at any rate, an amount in accordance with the Voorwerk II report.

 

  1. RETENTION OF TITLE

 

  • The goods delivered, given under management or made available for the (expressly-agreed) purpose of transferring title thereto to the Customer, do not pass to the Customer until immediately after full payment of all claims VV has against the Customer on any basis whatsoever, unless agreed otherwise.
  • If the delivery forms part of a series of deliveries, title to the goods is retained until all payment obligations related to this series of deliveries have been complied with.
  • If the Customer fails to comply with its obligations under the Agreement or there is well-founded fear that it will fail to do so, VV has the right to take back the goods delivered to which the retention of title applies or remove them or have them removed from the Customer or third parties. The Customer is obliged to compensate the costs incurred by VV in this connection.
  • The goods delivered by VV that are covered under the retention of title pursuant to paragraph 1 of this article may not be resold and may never be used as means of payment. The Customer does not have the right to pledge or otherwise encumber the goods covered by the retention of title.
  • In derogation from the above, the Customer is hereby authorised to sell the goods subject to the retention of title within the context of the ordinary conduct of its business, but the Customer’s right to resell is cancelled automatically in case an incident occurs as referred to in article 9 and/or in the event the Customer fails to pay an amount payable to VV under the Agreement before the due date.
  • The Customer must always do everything that may be expected of it within reason in order secure VV’s rights of ownership. The Customer is obliged to keep the goods in such a manner that it is clear that they are the property of VV.
  • In the event third parties levy an attachment against the goods delivered that are covered by the retention of title or wish to create or enforce rights in respect thereof, the Customer will be obliged to notify VV thereof immediately.
  • The Customer also commits that it will insure and keep insured the goods delivered subject to retention of title against fire, explosion and water damage and against theft and make the policy of this insurance available for inspection to VV upon first request. In case payment is made under the insurance, VV will be entitled to these insurance proceeds.
  • In the event VV wishes to exercise the rights of ownership referred to in this article, the Customer hereby grants VV unconditional and irrevocable approval in advance and third parties to be designated by VV to enter all those locations where VV’s property is located and take back such property.

 

  1. LIABILITY

 

  • VV is not liable for damage sustained by the Customer as a result of a failure, unlawful act or otherwise, unless the damage results directly and exclusively from gross negligence or intent on the part of VV.
  • In the event VV is obliged to pay any compensation on the basis of defects in the goods delivered, such compensation will be limited to at most the invoice pertaining to the goods delivered. In any event, VV is never liable for an amount that exceeds the amount that is paid out under its liability insurance.
  • VV is not liable for damage that arises as a result of terms being exceeded nor for consequential damage or indirect damage, including damage resulting from lost profit or missed savings.
  • VV is not liable for damage to or loss of goods and/or data that are stored at VV at the Customer’s request. Such storage always takes place for the risk of the Customer.
  • VV is not liable for damage that is caused by third parties who are engaged in the performance of the Agreement at the request and with the approval of the Customer or for damage that is caused by materials that are delivered to third parties by VV at the request and with the approval of the Customer.
  • VV is furthermore explicitly not liable for:
  • inexpert use or careless handling on the part of the Customer;
  • external influences, which fall outside the specification of the goods delivered, such as ambient temperatures that are too high or too low, deviating connection voltage, moisture, grid pollution etc.;
  • adjustments made by third parties or changes to the goods delivered by VV, without VV’s express written approval.
  • VV is not liable for parts that were not manufactured by it or only manufactured by it in part.

 

  1. COMPLAINTS

 

  • The Customer is obliged to inspect and test the goods delivered by VV accurately immediately after delivery or to have such done. Any complaints must be submitted to VV at its office in writing within (5) five working days after delivery. Defects that cannot be identified within reason within the abovementioned term must be reported to VV in writing immediately after they are discovered but in any event within 30 days after delivery. The Customer’s right to invoke non-conformity lapses by operation of law following expiry of the abovementioned terms.
  • All possible claims against VV lapse if they are not reported on time and in writing. The fact that VV handles a complaint does not mean that VV is of the opinion that the complaint was submitted on time or correctly.
  • Complaints never give the Customer any right to suspend payment of the purchase price or additional costs in whole or in part while any reliance on setoff is excluded expressly.
  • In the event a complaint has been accepted as valid by VV, the Customer will be obliged to send the relevant goods back to VV carriage paid and insured. Unless agreed otherwise, goods that are returned are only accepted by VV if they are in new condition, such to be assessed by VV.
  • Return shipments that have been accepted are credited up to an amount to be determined by VV within reason in which connection the Agreement will be considered to have been dissolved, or replaced by similar goods, without VV being obliged to compensate costs, damage or interest incurred by the Customer and/or third parties, such to be decided by VV.
  • Goods must not be returned without our prior written approval. If the Customer is allowed to send goods back after VV’s approval has been obtained, such return shipments must be sent back by the Customer carriage paid.

 

  1. CANCELLATION

 

  • If the Customer fails to comply or fails to comply properly or on time with any obligation that arises for it from the Agreement or the law, the Customer will be in default without notice of default and VV will have the right to suspend performance of the Agreement and/or dissolve all or part of that Agreement and Agreements directly related to it without VV being obliged to pay any compensation and without prejudice to VV’s further rights to compensation and/or payment of the goods delivered by VV.
  • In case of a (provisional) suspension of payment, bankruptcy on the part of the Customer, cessation or liquidation of the Customer’s business, or – in case the Customer is a natural person – the Customer is placed under administration, all Agreements with the Customer will have been dissolved by operation of law, unless VV informs the Customer within a reasonable term that it suspends compliance with (part of) the relevant Agreement(s) until payment has been secured sufficiently, without prejudice to VV’s other rights.
  • VV’s claims against the Customer become immediately due and payable in each of the cases referred to in paragraphs 1 and 2 of this article.

 

  1. FORCE MAJEURE

 

  • In case of force majeure, VV will have the right to suspend performance of the Agreement, without being obliged to pay any compensation to the Customer.
  • In case force majeure lasts for more than four weeks or in case of permanent force majeure, VV will have the right to dissolve all or part of the Agreement, such without being obliged to pay any compensation to the Customer. If this is the case, the Customer will reimburse to VV all costs incurred and to be incurred by VV.
  • Force majeure on the part of VV includes in any event: strikes by or illness on the part of VV employees and third parties engaged by it for performance of the Agreement, measures and/or prohibitions by the Dutch government and/or foreign governments, unforeseeable and unpredictable traffic obstructions, accidents involving a means of transportation used by VV or a third party engaged by it, unforeseen technical defects in these means of transportation, the lack of the required permits or exemptions, failure to comply on the part of VV’s suppliers, theft of materials required for the performance of the Agreement, weather conditions and all circumstances as a result of which VV cannot perform or cannot perform on time or properly without such being attributable to VV in any way.
  • Default on the part of VV does not preclude VV’s reliance on force majeure.

 

  1. INTELLECTUAL PROPERTY RIGHTS

 

  • All intellectual property rights that are related to or arise, for the purpose of the performance of the Agreement or otherwise, in respect of works developed by VV, including but not exclusively designs, texts, formats, concepts and ideas, are owned by VV.
  • If third-party works are used within the context of the performance of the Agreement, which works are or may be subject to intellectual property rights (such as music and films), the Customer will arrange for the required licences, including payment to the relevant entitled party or, as the case may be, copyright and other rights organisations, and if necessary, indemnify VV if it is held liable in this connection by third parties.
  • In the event VV places on or processes brands, other (distinguishing) marks, works (such as but not limited to texts, images, photos and layout) and/or models owned by third parties (including the Customer) in the goods within the context of the performance of the Agreement, the Customer will guarantee to the Customer that (placement of these) brands, other (distinguishing) marks, works and models do not infringe the rights of third parties and the Customer will indemnify VV if it is held liable in this connection by a third party.
  • The Customer is not allowed without VV’s express, written approval to change or remove brands or identifying marks placed by VV on the goods or on the packaging thereof or to change, disclose or reproduce the goods delivered or any part thereof.

 

  1. RECALL OF GOODS

 

  • In the event one of the parties becomes aware of a defect in the goods delivered (including the packaging), the party in question will be obliged to notify the other party thereof immediately, while stating:
    1. the nature of the defect;
    2. the relevant goods;
    3. all other information that could be relevant.
  • The parties must then implement in mutual consultation all measures that are necessary given the circumstances. The measures to be implemented may consist of cessation of deliveries, blocking of stocks (both at the Customer’s site and at the site of the Customer’s customers) and/or recall goods. Only VV has the right to makes decisions as to whether measures will be or will not be implemented and with respect to the nature and implementation of the measures to be implemented. The Customer is obliged to render all reasonable cooperation in the implementation of these measures and guarantees that it will do so.
  • The Customer is obliged to keep secret all information with respect to the measures that were actually implemented and any measures to be implemented.

 

  1. CHOICE OF LAW AND COMPETENT COURT

 

  • All Agreements and these General Terms and Conditions are governed by Dutch law.
  • All disputes that are related to an Agreement or the performance of an Agreement and that cannot be resolved by the parties in mutual consultation must be submitted to the competent court in The Hague, the Netherlands.
  • In derogation from the provisions of article 13.2., VV has the right to determine that the dispute will be settled by means of arbitration. If this is the case, arbitration will take place in accordance with the Regulations of the Netherlands Arbitration Institute (NAI) in Rotterdam.