1. General
1.1 These terms and conditions apply to all offers, quotations, transactions, agreements and all obligations arising from and/or relating to Bodemschat, hereinafter referred to as: Bodemschat, including the execution; all agreements under which Bodemschat acts as a service provider, as well as to all agreements concluded with Bodemschat for the purchase and sale of goods, as well as to all mixed agreements. They also apply to all subsequent offers, quotations, transactions and agreements made to or concluded with the same counterparty, regardless of whether they are related to or follow on from quotations already made or agreements concluded.
1.2 Deviations from these terms and conditions can only be made in writing and then only apply with regard to the specific agreement to which the deviations relate.
1.3 The other party in these terms and conditions means: the buyer and/or client, being a legal or natural person. In these terms and conditions, the term consumer means: the other party, being a natural person not acting in the course of a business.
1.4 Any conditions of the other party will only have effect for offers from and agreements with Bodemschat if and insofar as they do not conflict with the present conditions of Bodemschat, unless otherwise agreed and confirmed in writing by the management of Bodemschat.
1.5 If these terms and conditions are amended in the interim, the amended version of these terms and conditions shall form part of every agreement concluded between Bodemschat and the other party after the change has come into effect.
2. Offers, assignments and conclusion of agreement
2.1 Bodemschat's offers and quotations, in whatever form, must always be regarded as a whole and are valid during the term stated in the offer and quotation, but are always made without any obligation.
2.2 In the event of an order without a prior offer by Bodemschat, an agreement is only concluded when Bodemschat confirms it or actually implements it within fourteen days of receipt. The date of the conclusion of the agreement will be the day on which the confirmation is sent by Bodemschat.
2.3 All information provided with the offers and quotations is as accurate as possible. Bodemschat accepts no liability for the consequences of deviations or errors with regard to the information provided.
2.4 Agreements with or announcements from subordinate staff members of Bodemschat are not binding on the latter, insofar as they have not been confirmed by it in writing. In this context, all employees and employees who, according to the trade register, are not authorized to be regarded as subordinate staff members.
2.5 Information from printed matter, provided on behalf of Bodemschat, is subject to change, without Bodemschat being obliged to give notice of this.
2.6 The other party and/or client is deemed to have agreed to the contents of these terms and conditions, because he has ordered the delivery of goods by Bodemschat or has allowed the execution of the work to be started.
3. Prices
3.1 All prices are for delivery ex warehouse Hengelo. They are based on the price-determining factors applicable at the time of the offer, whatever, and are always in Dutch currency.
3.2 De-Bodemschat is authorized to increase the stated or agreed prices on the basis of an increase in the aforementioned price-determining factors that occurred after the offer or after the conclusion of the agreement, even if this increase was foreseeable.
3.3 If the other party is a consumer, it is entitled to terminate the agreement within 14 days after the date of notification of the price increase, exclusively by means of a written statement, when exercising our authority as indicated in paragraph 2 of this article. rescind, subject to the provisions of the second sentence of the following paragraph.
3.4 De-Bodemschat always informs the other party as soon as possible if and insofar as it makes use of the right granted above to implement price changes. In the event of price changes that lead to a difference with the agreed prices of 10% or less, De Bodemschat will not notify the other party of this change and will be delivered at the new price. In that case, the other party is also not entitled to dissolve the agreement. If the other party is a consumer, it is entitled to dissolve the agreement.
3.5 If cost-increasing taxes, levies or import duties are introduced or changed by any government measure, Bodemschat has the right to pass on these changes, even if it has been agreed that the price will be fixed, without this leading to cancellation of the order or dissolution. of the agreement by the other party. If the other party is a consumer, it is entitled to cancel the order given or to dissolve the agreement.
3.6 Bodemschat charges private customers a contribution to the shipping and packaging costs of at least €7.50 for shipment by post or courier. Resellers and customers who receive deliveries at reduced prices and to museums and institutes will be charged the total amount of shipping and packaging costs, unless otherwise agreed. Bodemschat reserves the right to charge the costs for special methods of dispatch, packaging or methods of dispatch and packaging prescribed by its counterparty to our counterparty.
3.7 The minimum order amount is € 20.00 (excluding the contribution to the shipping and packaging costs). For orders with a value lower than € 20.00, an additional € 3.50 will be charged, in addition to the usual shipping and packaging costs.
4. VAT for community deliveries
4.1 The other party may request Bodemschat to deliver as one of Dutch VAT. exempt intra-Community supply. Bodemschat will only do this if, in its opinion, the following conditions are met.
The other party is an entrepreneur established within the European Community within the meaning of the Turnover Tax Act 1968 and acquires the purchased goods in the context of this enterprise;
the (international) VAT number stated by the other party is included in the file of valid international VAT numbers of the Dutch tax authorities and the ascription there corresponds to the name used by the other party with regard to Bodemschat;
It has been established that the goods sold actually go to another Member State and are received there by or on behalf of the other party;
all other requirements pursuant to the Turnover Tax Act 1968 for the application of the exemption for intra-Community supplies have been met.
With every delivery of goods, Bodemschat remains authorized without stating reasons to the other party. to charge on the cost price, even if the other party Bodemschat has made the aforementioned request.
5. Execution of the agreement
5.1 Bodemschat is entitled to determine the manner in which the agreed performance will be performed, as well as the place and time at which the agreed performance will be performed, unless expressly agreed otherwise.
5.2 Under normal circumstances, shipments are made using the services provided by PostNL or DHL, unless otherwise agreed or if Bodemschat invokes paragraph 1 of this article.
5.3 If during the execution of the agreement it appears that minor deviations are necessary or desirable, then Bodemschat can adjust the agreement accordingly. These deviations will be communicated to the other party and/or client as much as possible. If the deviations are of such a nature that a price adjustment is indicated, this price adjustment will take place after consultation.
6. Compliance with the Agreement and Control
6.1 If during the term of the agreement it is established by the other party that the performance of the work deviates significantly from what has been agreed, or if the other party establishes a quality standard and control system agreed in writing between the parties in advance that the result of the work performed, according to mutual consultation, remains clearly below the level agreed in advance, the other party will notify Bodemschat in writing of the deviation it has found.
6.2 The written notification referred to must at least contain: a. An accurate description of the time, space, nature and seriousness of the observed non-conformity; b. A reasonable period within which Soil Assessment must rectify the observed deviation.
6.3 If Bodemschat does not repair the observed deviation, within the stipulated period or not properly, the other party is free to declare Bodemschat in default by means of a written statement and to dissolve the agreement after its failure, subject to the provisions under paragraph 4 of this article.
6.4 However, there will be no dissolution of the agreement if the observed deviation was the first reported by the other party to Bodemschat within a period of 6 months, or if the observed deviation is of such minor importance that, in reasonable consideration of the the interests of the other party, such a deviation should not lead to the dissolution of the agreement. If the other party is a consumer, the provisions of the first sentence of this paragraph do not apply.
7. Delivery and risk
7.1 Stated delivery times are only approximate and can never be regarded as deadlines. Bodemschat is not liable for the consequences of a late delivery. If the delivery time is exceeded, Bodemschat will only be in default after written notice of default. Bodemschat is entitled to deliver and invoice an order in parts.
7.2 Exceeding the delivery time never entitles the other party to compensation, dissolution or conversion of the agreement or non-compliance with any obligations arising from this agreement. If the other party is a consumer, it is entitled to dissolve the agreement if the delivery time is exceeded, subject to the other provisions of paragraph 4 of this article. Any contractual penalty expressly set for exceeding the delivery time is not due if the exceeding is the result of force majeure as described in Article 14.
7.3 The delivery time commences after the agreement has been concluded, all information necessary for the performance of its obligations has been made available to Bodemschat, and payment, if and insofar as this must be made in advance with the order, has been received. The delivery time will be extended by the period during which Bodemschat has suspended its performance pursuant to these terms and conditions and/or the law, or during which Bodemschat is prevented from performing due to force majeure as described in Article 14.
7.4 Each agreement is entered into by Bodemschat under the condition that the other party proves to be sufficiently creditworthy. Bodemschat is entitled to require the other party to provide sufficient security to its satisfaction to cover its obligations towards Bodemschat. Bodemschat is also entitled to suspend the execution of the agreement until the required security has been provided.
7.5 Delivery is only made on COD to unknown customers. Any additional costs that this method of shipment entails will be borne by the other party.
7.6 Delivery takes place ex warehouse Hengelo. The goods are deemed to have been delivered and the risk in respect of these goods transfers to the other party: as soon as the goods are in the means of transport, even if Bodemschat arranges for transport; when cooperation by our other party as referred to in the following paragraph under b. is (deemed to be) refused. If the other party is a consumer, the goods are (deemed to have been) delivered and the risk in respect of these goods is transferred to the other party, being a consumer: at the time of delivery of the goods to the consumer. If another method of delivery has been agreed, the previously described risk transfer will remain in full force and effect.
7.7 The other party is obliged to provide the cooperation necessary for the performance of our performance. This cooperation is deemed to have been refused: a. if Bodemschat arranges for transport, if the goods have been offered to the other party for delivery, but this has proved impossible; b. if the other party arranges for transport, if the goods are not collected by or on behalf of the other party on the agreed date. In these cases, our other party will immediately be in default without further notice of default. All costs arising for Bodemschat from this refusal will be for the account of the other party, without prejudice to its other rights with regard to this shortcoming.
7.8 In the case of visible shipments, delivery takes place under the suspended condition of confirmation of the purchase by the other party. If the other party has not returned it within 10 working days of receipt of the inspection shipment, it is no longer authorized to refuse the inspection shipment and it is deemed to have confirmed the purchase on the conditions in the inspection invoice. The other party is not authorized to resell the sight consignment, or parts thereof, before it has confirmed the purchase.
8. Call-off
8.1 If delivery on demand has been agreed, Bodemschat can deliver the goods no later than 30 working days after the day on which they were called.
8.2 If call-off periods have been agreed, in the event of late call-off, the term referred to in the previous paragraph of this article will be extended by 10 working days
8.3 The other party is obliged to call off. In the absence of an agreed call-off, Bodemschat has the right, after notice of default, to store the goods (or have them stored) in the warehouse of Bodemschat or elsewhere, or to have them sold at its expense, at the expense and risk of the other party, without prejudice to its other rights. with regard to the failure of the other party. By such storage, the goods are deemed to have been delivered.
9. Advertising
9.1 Control of the quantity of the delivered goods rests with the other party. If the other party does not make a complaint as soon as possible and in any case within three working days after receipt of the delivered goods, the quantities stated on waybills, delivery and packing slips, invoices or similar documents shall be deemed to be correct.
9.2 The other party is obliged to check the delivered goods upon receipt. Any defects in the delivered goods, which are immediately apparent upon receipt of the goods, must be noted by the other party immediately and specified with a clear description of the complaint, on the consignment note, packing slip or a similar document or a copy thereof. Other complaints must be submitted to De Bodemschat in writing and motivated by the other party at the latest within three working days after receipt of the goods or after any defects could reasonably have been discovered. In the absence of a timely complaint, or if the goods have been processed wholly or in part, the goods shall be deemed to have been approved and Bodemschat's liability therefor and as a result thereof shall lapse, unless the defect can first be detected by or during the processing, without prejudice to the obligation of the the other party to make a timely complaint in that case.
9.3 Complaints about invoices must be submitted in writing to Bodemschat within 8 days of the invoice date.
9.4 Complaints do not suspend the other party's (payment) obligations with regard to the delivered, previously delivered or yet to be delivered.
9.5 Returns of the delivered goods can only take place after consultation and with permission from Bodemschat. The other party cannot derive any rights of any kind from such permission.
10. Payments
10.1 The payment term is always no later than 8 days after the invoice date, unless otherwise agreed in writing. However, Bodemschat reserves the right to only deliver to certain buyers subject to a shorter payment term or cash on delivery. Set-off by the other party is not permitted unless Bodemschat has fully and unconditionally acknowledged the counterclaim.
10.2 If no payment has been received from the other party within the agreed payment term, it is legally in default, without further notice of default or demand, and Bodemschat is entitled to charge interest of 1½% per month or part thereof on the invoice total from the due date. , without prejudice to Bodemschat's further rights in this regard.
10.3 All judicial and extrajudicial collection costs incurred by Bodemschat in order to effect fulfillment of the obligations of the other party, will be borne by the other party. The extrajudicial collection costs are calculated in accordance with the collection rate, advised by the Dutch Bar Association, with a minimum of € 150.00, without prejudice to our right to claim the higher actual damage. The extrajudicial costs are set at at least 15% of the amount to be collected plus VAT, with a minimum of € 50.00 and are due at the time the claim is handed over for collection.
10.4 Payment must be made without any deduction, any right to discount or set-off at Bodemschat's offices, into an account in the Netherlands to be designated by Bodemschat, or in another location and/or manner indicated by Bodemschat.
10.5 Payments made by the other party always serve to settle all interest and costs owed, then to settle claims due in respect of which no valid retention of title can be stipulated, and afterwards to settle payable invoice claims that have been outstanding the longest, even if the other party states that the payment relates to has on another or later (invoice) claim.
11. Bankruptcy
11.1 If the other party does not, not properly or not in time, fulfill any obligation that may arise for it from the agreement, as well as in the event of bankruptcy, suspension of payments or placing under guardianship of the other party, placing its assets under administration or shutting down or liquidating its company, the other party is deemed to be in default by operation of law and Bodemschat is entitled at its discretion, without any obligation to pay compensation and without prejudice to its further rights, without notice of default or judicial intervention being required, to dissolve the agreement in whole or in part. or to declare it dissolved or to suspend the (further) execution of the agreement. In this case, De Bodemschat is furthermore entitled to demand immediate payment of what is due to it.
12. Retention of title
12.1 All goods delivered by Bodemschat remain its property until full payment of all its current and future other claims under agreements for the delivery of goods and associated work, as well as under claims for failure to comply with such agreements, including fine, interest and costs. Until the moment of full payment or settlement, the other party is not authorized to pledge the goods to third parties, transfer ownership or otherwise encumber or alienate the goods under any title whatsoever. In the context of its normal business operations, the other party is entitled to sell and deliver the goods to third parties in accordance with their intended use.
12.2 As long as full payment has not been made and the other party is in default or Bodemschat has good reason to fear that it will be in default, Bodemschat can immediately reclaim the delivered goods without prior notice of default. The other party grants Bodemschat the authority to enter its sites and buildings for this purpose. The agreement can then still be considered dissolved by it without judicial intervention, notwithstanding its right to claim compensation for costs, damages and interests.
12.3 The other party is obliged to adequately insure the goods referred to in this article and in any case against the risks of theft, damage and destruction. The other party is not permitted to pledge any claims against its insurer under insurance policies, as referred to in this paragraph, to third parties or to have them serve as security in the broadest sense of the word to third parties. Payments in respect of damage and loss of the goods referred to in this article shall take the place of the goods concerned. In the event of non-observance by the other party of its obligations arising from this paragraph, it will owe an immediately due and payable fine of € 1000.00 for each violation. This penalty applies in addition to any obligation to pay compensation.
12.4 The other party is obliged to immediately notify any third party who wishes to seize goods delivered by Bodemschat that are subject to Bodemschat's retention of title, or its administrator or curator, in writing, with a copy to Bodemschat, that Bodemschat is the owner of those goods. is. This is under penalty of forfeiture of an immediately due and payable fine in the amount of € 5000.00, or if higher, 75% of the original invoice amount of the goods of which Bodemschat as a result of such attachment, suspension of payment or bankruptcy, the ownership (could be ) losses. This penalty applies in addition to any obligation to pay compensation.
13. Liability
13.1 Bodemschat is not liable for any damage whatsoever caused to the other party and/or to third parties. In particular, any liability is also excluded for damage or loss of value arising as a result of incorrect or incorrect use of goods by the other party.
13.2 For the rest, in the event of imputable failure to perform, not perform on time or properly, any obligation to pay compensation is always fully met by compliance with the guarantee scheme below. Its liability is expressly limited to the provisions of that guarantee scheme, so that Bodemschat is therefore not liable for any (further) damage, including consequential damage, and it is therefore not obliged to pay compensation for trading loss, loss of profit, damage as a result of personal accidents, damage arising from claims by third parties against the customer or any other damage whatsoever. This limitation does not apply insofar as the damage is caused by intent or gross negligence on the part of the Bodemschat.
13.3 Bodemschat guarantees for a period of three months, starting from the date of delivery, the soundness of the materials and installations it supplies. To this end, any defect in the delivered/performed and/or a part thereof will be repaired/improved or replaced at its discretion, if these goods have become unusable or significantly limited in their usability due to the defect and the other party sufficiently demonstrates that this defect is occurred within the warranty period. The repair will take place on site or at Bodemschat or at a place designated by it, always at the discretion of Bodemschat. The following are not covered by the guarantee: travel, accommodation and transport costs; costs of (dis)assembly, unless it concerns an assembly defect and all other costs of performance on its part that exceed the single obligations for repair/improvement or replacement as described above. Article 10 paragraph 6 applies mutatis mutandis.
13.4 Bodemschat is not obliged to honor this guarantee in the following circumstances: a. if Bodemschat has indicated in good time that it cannot agree with a choice of materials and/or method prescribed by the other party; b. if work has been or will be performed on the goods by parties other than the other party or its personnel, or if changes have been made to them or to them by others than it; c. if defects in the goods are the result of normal wear and tear, improper use, maintenance or other negligence on the part of the other party or its personnel; d. if the other party does not or does not fully comply with any obligation arising from this or another related agreement, including financial obligations; e. if the defect in question has not been submitted in writing by the other party at the latest within 8 days after it has been established or could have been established. The costs of detecting and repairing defects that are not covered by the warranty provided by Bodemschat or its supplier or manufacturer on the basis of this provision will be charged to the other party.
13.5 With regard to goods, materials or parts for which a manufacturer's guarantee has been given, Bodemschat will not be obliged to accept any further responsibility or a longer guarantee period than the relevant manufacturer or supplier for these goods, parts of goods or materials is prepared to accept Bodemschat, without prejudice to the other provisions of this article.
13.6 If Bodemschat replaces parts in fulfillment of its warranty obligation, the replaced parts become its property.
13.7 Compliance with the aforementioned warranty obligation and the expiry of the warranty period referred to exclude any claim for repair or compensation for damage, also on the basis of defects that subsequently become apparent. Should Bodemschat nevertheless be considered legally obliged to pay any compensation, its total liability will in no case exceed the amount equal to the lower of the following two amounts: € 5000.00 or an amount equal to the total amount stipulated in the relevant agreement. price (excluding sales tax).
13.8 Any liability and warranty is excluded for damages arising in the territory of Canada and/or the United States of America, as well as for damages that may be assessed under the law of these states.
13.9 Bodemschat accepts no liability for errors in the software it supplies, since error-freeness is not possible due to the current state of the art.
14. Force Majeure
14.1 If and insofar as Bodemschat cannot, not fully or not in time, fulfill its obligations under the agreement due to force majeure, Bodemschat is entitled to dissolve the agreement in question, without judicial intervention and without being liable for damages, or to dissolve the obligations arising from the to suspend the relevant agreement for a period to be agreed.
14.2 Force majeure includes: any unforeseeable stagnation in the regular course of business at Bodemschat or in the company of a third party from whom Bodemschat purchases goods, as well as apparent changes since the conclusion of the agreement in the actual circumstances, which directly or indirectly affect cost factors or delivery options. Not being imputable and not at the risk of Bodemschat, is, among other things, the case of default and/or shortcoming by or at suppliers, subcontractors and/or transporters, of fire, strike or lockout of workers, riots, riots, war, government measures, including export , import or transit prohibited, frost and all other circumstances of such a nature that bondage can no longer be demanded of Bodemschat.
15. Right of Retention
15.1 Bodemschat is authorized to keep all items in its possession from or on behalf of the other party until the other party has fulfilled all its obligations towards Bodemschat, with which the items in question have a direct or sufficient connection to justify a refusal of delivery. If things that fall under this right of Soil Treasure lose their control, it is entitled to claim these things, as the true Soil Treasure itself is the owner.
16. Disclaimer
16.1 Bodemschat will never be liable to third parties for damage arising during the execution of the agreement to which the present terms and conditions apply, than Bodemschat would be towards the other party. The other party indemnifies Bodemschat against any further liability and shall, where possible, stipulate a corresponding indemnification for Bodemschat in its agreements with third parties.
17. Joint and several
17.1 All that, payment or otherwise, to which Bodemschat is entitled with regard to the obligations arising from any agreement or these terms and conditions, nothing excepted, is jointly and severally owed by the owner or director of the other party, or by anyone who has authority to dispose of the goods. goods, regardless of whether they have commissioned Bodemschat to deliver goods or services in their own name and/or account, or on behalf of third parties, on the understanding that performance by one of them releases the other.
18. Custody and insurance of goods of the other party
18.1 If Bodemschat of the other party has items in its possession for processing or for safekeeping, it will insure these items against the risks of fire and burglary on the terms and conditions of its general policy. De Bodemschat will make these terms and conditions known to the other party on request.
18.2 Bodemschat's liability with regard to loss or damage to the goods taken into custody is expressly limited to the amount paid out by Bodemschat's insurer. Any claim of the other party against Bodemschat with regard to the damage referred to is only due and payable if Bodemschat has received payment from the insurer.
18.3 Requests by the other party to Bodemschat to additionally insure its goods must always be addressed in writing to Bodemschat in good time prior to storage.
19. Applicable Law and Dispute Resolution
19.1 All agreements concluded by Bodemschat, as well as the obligations arising therefrom, are exclusively governed by Dutch law. All disputes arising from or related to these terms and conditions and the legal relationships arising between the parties will, subject to legal restrictions, in the first instance be adjudicated exclusively by the competent court in Almelo, unless Bodemschat prefers to turn to the competent court. court at the place of residence or place of business of the client or to another competent court.
