1. In these general conditions, the terms below are used in the following meaning, unless it is expressly indicated, or the context evinces, otherwise:
VDBA: the user of these general conditions: Van den Berg Afvoerputten BV established on Koperstraat 19 in Lelystad, listed in the trade register of the Chamber of Commerce under number 39068443;
agreement: the agreement between VDBA and purchaser;
purchaser: the company which has concluded an agreement with VDBA.
1. These general conditions are applicable to all offers, quotations, etc. of VDBA and are a part of every agreement. Deviations from these general conditions are only effective if and to the extent they have been established in writing or by e-mail between parties.
2. Once these general conditions have been applicable to a legal relationship between VDBA and the purchaser, the purchaser is considered to have consented to the applicability of these general conditions to agreements concluded and to be concluded afterwards.
3. Any possible general (purchase) conditions applied by the purchaser are emphatically rejected by VDBA.
4. If one or more provisions from the agreement or these general conditions were not or not fully legally valid, the remaining provisions remain fully effective. Instead of such provisions as may be invalid, an appropriate arrangement applies which approximates the intention of parties and the economic results aimed for them as closely as possible, in a legally effective manner.
5. If VDBA does not constantly demand strict compliance with these general conditions, this does not mean that their provisions are not applicable, or that VDBA would in any degree lose the right to demand strict compliance with the provisions of these general conditions in other cases.
6. VDBA has the right to modify these general conditions. The purchaser is notified in writing or by e-mail of the modified general conditions. The modified general conditions are applicable to all orders which the purchaser places after he has been notified of the modified general conditions.
Offer and acceptance
1. All offers of VDBA are non-committal, unless indicated otherwise. VDBA is only bound after it has accepted or confirmed an order in writing or by e-mail.
2. In case of a non-committal offer which is accepted by the purchaser, VDBA has the right to revoke the offer within 4 business days after receipt of the acceptance.
3. Apparent mistakes or errors, such as writing errors, in quotations, agreements, or e-mail messages or on the website do not bind VDBA.
4. VDBA can apply changes to its product range at all times.
5. Offers, quotations, and prices do not apply automatically to future orders.
1. The prices applied by VDBA are exclusive of VAT and exclusive of other levies imposed by government. Listed prices are exclusive of transport costs, unless established otherwise.
2. The sales price listed by VDBA is based on its buy price and other cost factors. In case one of these cost components is increased, after confirmation of the order but prior to delivery of the matters, VDBA has the right to pass on that increase to the purchaser. The purchaser is notified of the increase in writing or by e-mail.
1. The delivery times indicated by VDBA can never be considered fatal time limits, unless emphatically agreed otherwise in writing or by e-mail. In case of late delivery, VDBA only falls into default after written or electronic default notice.
2. The purchaser is not entitled to any compensation of damages for whatever type of damage in the event VDBA is in default as intended here.
3. In case of the overrunning of a delivery term established with the purchaser as a result of an event which is outside the control of VDBA and cannot be attributed to their actions and/or inactions, as described for example in article 14, this term is automatically extended with the period it was exceeded as a consequence of such an event.
4. The overrunning of the established delivery time does not give the right to the purchaser to cancel the order, nor to refuse receipt or payment of the matters.
1. All matters travel at the risk of the purchaser, also if VDBA takes care or has taken care of the transport of the matters by order of the purchaser. Contracts entered into towards third parties do not apply changes to this.
2. VDBA has the right to store or have stored matters which due to causes independent of its volition cannot be transported to the place of destination, at the expense and risk of the purchaser and demand payment from the purchaser as if delivery had taken place.
3. The choice of the means of transport is VDBA’s at all times. Impediments or temporary obstacles for the chosen means of transport do not oblige to choose another. VDBA is not responsible if, due to whatever cause, the means of transport it has selected fails.
4. Unless the purchaser timely requests VDBA to insure the transport at his expense, the matters will travel uninsured.
5. Unless it had been established otherwise, import and export duties, clearance charges, and taxes are borne by the purchaser.
Retention of property and collateralisation
1. VDBA reserves itself the property of all matters delivered by it to the purchaser, until all its claims on this purchaser regarding the delivered matters have been completely settled. The retention of property also serves as a security for claims of VDBA on the purchaser on account of falling short in complying with aforementioned agreements.
2. The purchaser is authorised to dispose of the matters delivered under retention of property within the framework of his regular business operations. In that case, the purchaser is obligated to deliver the supplied matters to third parties under the retention of the property rights of the purchaser as well.
3. VDBA is authorised to take back the matters delivered under retention of property to the purchaser if the purchaser has not, has not fully and/or not timely complied with his obligations towards VDBA or if there are valid reasons to assume that the purchaser will not, will not fully and/or not timely be able to comply with his obligations towards VDBA.
4. The purchaser is obligated to treat the matters delivered under retention of property with due diligence and as the recognisable property of VDBA. The purchaser must always take all such action as can reasonably expected of him to secure the property rights of VDBA.
5. If VDBA wishes to exercise its right, as described in this article, the purchaser is obligated to grant VDBA access to all places where the matters of VDBA are located.
6. In case of seizure, suspension of payment or bankruptcy, the purchaser will immediately inform VDBA accordingly and point out to the bailiff ordering attachment, the administrator, or the liquidator the (property) rights of VDBA.
7. The provisions mentioned in this article leave the other rights falling to VDBA unaffected.
8. The purchaser commits himself upon first request of VDBA to lodge additional security for compliance with the obligations entered into by the purchaser, in the form and to the extent wished by VDBA.
1. Unless established otherwise payment of the amounts owed to VDBA must take place within 30 days after invoice date.
2. If an order is carried out in batches, VDBA has the right to invoice each batch separately.
3. The purchaser does not have the right to set off the amounts owed by him to VDBA against amounts to be claimed by him from VDBA, unless VDBA has emphatically granted written consent for the set-off.
4. By the overrunning of the payment terms stipulated by VDBA, the purchaser legally falls into default without requiring any summation or default notice. In that case, the purchaser owes the statutory commercial interest from the day of overrunning over the amounts owed by the purchaser due to delay in compliance.
5. The extrajudicial costs to be incurred by VDBA to effectuate compliance with obligations of the purchaser, will be compensated by the purchaser. These costs are established at 15% of the amount owed with a minimum of € 70 (exclusive of VAT).
6. VDBA has the right at all times to demand advance payment or securities for payment from the purchaser, in whatever form, before proceeding to (further) delivery.
7. In case of the liquidation, bankruptcy, seizure, or suspension of payment on the part of the purchaser, the claims of VDBA on the purchaser become immediately payable.
8. Every payment by the purchaser serves first for the settlement of the interest owed, and subsequently for the settlement of the costs relative to the collection. Only after settlement of these amounts does any payment serve for the settlement of the outstanding principal.
1. VDBA guarantees that the matters delivered by it are of sound material and manufactured in accordance with the specifications submitted by VDBA. This warranty obligation applies for a period of twelve months after commissioning, with a maximum of eighteen months after delivery. This warranty only applies to defects resulting from a faulty design or a defect to material or manufacturing. If during aforementioned period defects as intended here occur in the matters delivered by VDBA, VDBA will, at its proper discretion, after consultation with the purchaser restore these defects or have them restored or otherwise replace the matters in question. VDBA becomes the owner of the replaced matters or components. A retention of property stipulated by VDBA with regard to the original matter or the original components also applies to the new matter. Repair or replacement of matters takes place at the expense of VDBA.
2. To the substitute matters and components or the repair activities carried out respectively it applies that the warranty is effective for twelve months, but it ends at the moment that the warranty would have ended for the matter delivered originally.
3. The warranty of VDBA lapses if:
the purchaser modifies or repairs the matter himself or has this done by a third party;
the matter in the opinion of VDBA has been handled or maintained in an inexpert way;
the written instructions and indications of VDBA have not been followed;
defects were caused by outside circumstances such as: fire, natural disasters, explosions, cleaning agents, accumulated filth, etc.;
the matter was not used for the purpose it is intended for.
4. The warranty described in this article is not transferable without the prior written consent of VDBA. An authority attributed to the purchaser as intended in article 7.2 leaves unaffected that written consent is required for the transfer of the warranty.
5. The liability of VDBA is limited at all times to what is stipulated in article 13.
Complaints; Invoking warranty
On pain of his right of complaint lapsing, the purchaser must on account of visible imperfections in the delivered matters report within ten days after commissioning to VDBA in writing or by e-mail.
Complaints regarding other (invisible) defects, to which the warranty applies as intended in article 9.1, in the delivered matters must be reported to VDBA within ten days after such possible defects have become known or may be known, in writing or by e-mail.
Defects which are not covered by the warranty or which are discovered after the warranty term or on account of which a complaint has been filed too late, are resolved by VDBA on request of the purchaser against the prices which VDBA customarily applies for it.
The purchaser is obligated to provide all assistance which is necessary for the performance of VDBA, also emphatically including the obligations to purchase the ordered matters.
Purchase is considered to have been refused if the ordered matters were offered for delivery to the purchaser, but delivery has proven to be impossible. As a result, the purchaser falls into default immediately, without requiring further notice. The day on which refusal takes place is considered the delivery date of the sold matters.
The costs incurred by VDBA resulting from this default, such as storage costs, are borne by the purchaser, and such without prejudice to the other rights of VDBA in the matter of the shortcoming of the purchaser.
Obligations of the purchaser
The purchaser makes sure that all information which VDBA indicates is necessary or which the purchaser should reasonably understand it is necessary for the implementation of the agreement, will be timely provided to VDBA.
If the information furnished by the purchaser is incomplete and/or incorrect, this will be at the expense and risk of the purchaser entirely.
For the observance of all legal and other applicable regulations which are effective in the country where the purchaser is established in connection with the control of, keeping, transport, and resale, in whatever manner, of the matters, the purchaser is responsible exclusively.
The purchaser safeguards VDBA against any claims by third parties which incur damage in connection with the implementation of the agreement and which are attributable to the purchaser.
Liability and limitation period
VDBA cannot be held to compensate any damage which is a direct or indirect consequence of:
an event which is effectively outside its control and can therefore not be attributed to its action and/or inactions, as described, for example, in article 14 of these general conditions;
any action or failure to act on the part of the purchaser, his subordinates, or other persons who have been deployed by or on behalf of the purchaser.
VDBA is not liable for damage, of whatever nature, because VDBA based itself on inaccurate and/or incomplete information provided by the purchaser.
VDBA is not liable if the matters to be delivered are not suitable for the purpose for which the purchaser wishes to use them. The purchaser must investigate the suitability himself.
VDBA is not liable for damage to or caused by the matter, for example due to wrong or inexpert use or use of the matter in violation of the user manual or user instructions.
VDBA is not liable for damage if the purchaser or a third party has applied modifications or changes to the matter.
If VDBA deems itself forced to take measures and/or grant assistance to recall-actions to prevent (further) damage as a result of claims by end-users on grounds of a defect to delivered matters, the purchaser commits himself to collaborate with such measures. VDBA can never be held accountable for the damage which the purchaser incurs due to initiated recall-actions.
VDBA is not liable for the maiming or loss of data as a result of the shipping of the data with the aid of telecom facilities.
The liability of VDBA for indirect damage, also including consequential damage, loss of profit, loss of turnover, missed savings, reputational damage, imposed fines, labour costs and damage due to operational stagnation, is excluded.
If VDBA were to be liable for any damage, the liability of VDBA is limited to the amount of the disbursement made by the insurer of VDBA. If the insurer in any case does not proceed to disburse or the damage is not covered by the insurance, the liability of VDBA is limited to the price paid for the matter which the liability is in regard to.
What is stipulated in this article leaves unaffected the possible liability of VDBA on account of the legal provision regarding product liability.
The limitations to liability stipulated in these general conditions for direct damage do not apply if the damage can be attributed to the intent or gross negligence of VDBA.
The purchaser safeguards VDBA against claims lodged by third parties on the matters of incidents, actions, or negligence for which VDBA is not liable pursuant to the preceding. The purchaser is bound to indemnify VDBA upon first request for all costs, damages, and interests which may result for VDBA as a direct or indirect consequence of a claim filed by a third party against it, as intended in this section.
The right to file legal claims and other powers of the purchaser, on whatever account, on VDBA lapse in any case after the expiry of 1 year from the moment on which a fact occurs conferring the opportunity to the purchaser to exercise these rights and/or powers vis-à-vis VDBA.
If the purchaser does not, does not timely, or does not adequately comply with his contractual obligations or with his obligations pursuant to the law, or if he acts unlawfully towards VDBA, then the purchaser must compensate all damage which VDBA incurs or has incurred as a consequence.
VDBA is not bound to comply with any obligation towards the purchaser if it is prevented from doing so as a result of a circumstance which is not attributable to its fault, and which is not its responsibility either pursuant to the law, a legal action, or commonly held opinion.
Circumstances which, amongst others, are not borne by VDBA: transport issues; strikes; theft; weather effects; natural disasters; riots, terrorism, wars or threats of war; fire; import and export bans; power outage; internet malfunctions; computer malfunctions; malfunction of e-mail traffic; hacker attacks or the intrusion of computer systems by a third party; government measures; legal amendments.
Also intended by force majeure is a non-attributable shortcoming of suppliers of VDBA.
If the period during which compliance with the obligation by VDBA is not possible lasts longer than one month, both parties have the right to rescind the agreement without judicial intervention, in writing or by e-mail, without an obligation to compensate damage existing in such case.
If VDBA upon the force majeure becoming effective has already fulfilled part of its obligations, or if it can subsequently only fulfil a part of the obligations, it has the right to separately invoice the part already delivered or the deliverable part respectively, and the purchaser is obligated to settle this invoice as if it regarded a separate agreement.
Intellectual and industrial property
VDBA retains all intellectual and industrial property rights regarding the matters and material supplied by it, as well as to the inventions, drawings, and models inherent in them.
Pictures, drawings, and the likes, provided by VCBA, remain their property and may not, without their express consent, be multiplied in whatever form, nor be made available to third parties.
The purchaser must respect the intellectual property rights of VDBA at all times.
In case the purchaser is not compliant with any obligation towards VDBA pursuant to the agreement or in the event of bankruptcy or suspension of payment of the purchaser, or if his goods are seized, VDBA has the right to rescind the agreement with immediate effect, without requiring judicial intervention, and without prejudice to the rights of VDBA to compensation of damages.
VDBA furthermore has the right to rescind the agreement if circumstances occur which are of such a nature that compliance with the agreement is impossible or to standards of reason and fairness can no longer be demanded, or if circumstances occur otherwise which are of such a nature that the unaltered maintaining of the agreement may not reasonably be expected.
In case of the intended exportation by the purchaser of matters delivered by VDBA and/or of documentation regarding, the purchaser will not export these matters or this documentation without having complied with the applicable national and international export regulations.
Both parties are obligated to maintain the secrecy of all confidential information which they have obtained from each other or from other sources in the context of their agreement. Information is considered confidential if such has been announced or if it flows from the nature of the information. The party receiving confidential information will solely use it for the purpose it has been provided for.
If, pursuant to a legal provision or a court ruling, VDBA is bound to provide confidential information to third parties designated by the law or by the competent court, and VDBA cannot appeal on the matter to a waiver regarding the provision of information granted or permitted by the competent court, VDBA is not obligated to compensate damage or indemnification, and the purchaser does not have the right to rescind the agreement on grounds of any damage which has resulted.
Applicable law and competent court
To all agreements which are subject to these general conditions, as well as to all further agreements which result from them, Netherlands legislation is applicable.
Disputes between VDBA and the purchaser will be submitted exclusively to the competent court in the district where VDBA is established.