Terms of delivery

General Terms and Conditions of Dulimex B.V. in Vaassen, filed with the Chamber of Commerce on 25-01-2024 under number 08037808.

1. Applicability

1. The following terms and conditions apply to all quotations, deliveries and agreements between Dulimex B.V. (Dulimex) and the buyer. A deviation from these terms and conditions can be invoked only if Dulimex has explicitly agreed to this in writing.
2. Insofar as these general terms and conditions are also available in a language other than Dutch, the Dutch text will prevail.

2. Quotations

1. All offers made by Dulimex are non-binding and can also be withdrawn after acceptance.
2. An agreement is only concluded when Dulimex has confirmed the order in writing or because Dulimex has started to perform the agreement. Orders taken by representatives of Dulimex and any agreements or changes made later will only bind Dulimex after they have been confirmed in writing by Dulimex.
3. The order confirmation sent by Dulimex is deemed to reflect the agreement accurately and completely. With regard to orders for which, due to their nature and size, no quotation or order confirmation is sent, the invoice is deemed to reflect the agreement accurately and completely. Complaints must be made within three working days.

3. Prices and payment

1. Quoted prices are in Euro and exclusive of VAT, import duties, other taxes, levies and duties.
2. Quoted prices expire with the publication of new price lists. Dulimex is - also in the case of repeat orders - always entitled to calculate the prices applicable on the day of delivery, as well as to pass on any price increases that have taken place after the conclusion of the agreement.
3. The payment term is 30 days.
4. Settlement against any claim against Dulimex is excluded.
5. The parties agree that the buyer is not entitled to any right of suspension within the meaning of Articles 6:52 and 6:262 of the Dutch Civil Code, among other things.
6. Upon or after concluding the agreement, Dulimex can demand a guarantee from the buyer that both the payment and other obligations will be fulfilled, including full or partial payment in advance, before delivering any (further) performance. The buyer’s refusal to provide the requested security entitles Dulimex to suspend its obligations and entitles it to dissolve the agreement in whole or in part without notice of default or judicial intervention being required, without prejudice to its right to compensation for any damage suffered by it and without the buyer being entitled to compensation.

4. Delivery and transfer of risk

1. Dulimex reserves the right to deliver orders in parts. The buyer is obliged to pay invoices relating to the partial delivery.
2. Delivery by Dulimex takes place in accordance with the Incoterms of the International Chamber of Commerce (ICC) Ex Works (EXW).
3. Specified delivery times are approximates only and can never be regarded as deadlines.
4. Liability for exceeding a delivery time is excluded.
5. With regard to the delivery time, products are deemed to have been delivered when they are ready for shipment and the buyer has been notified of this in writing.
6. Immediately after the product is deemed to have been delivered, the buyer bears the risk for all direct and indirect damage that may occur to or through this product, except insofar as the damage can be attributed to intent or deliberate recklessness on the part of employees of Dulimex management. If after notice of default, the buyer remains in default with regard to the purchase of the product, Dulimex is entitled to charge the resulting costs to the buyer.
7. If the buyer fails to take delivery of the goods after the delivery period has expired, Dulimex may, at its discretion, dissolve the agreement or store the goods at the expense and risk of the buyer. All costs ensuing from the aforementioned circumstances, including storage costs and any reduced proceeds, will be at the expense of the buyer.
8. If so deemed required or desired by Dulimex, Dulimex will be entitled to engage third parties for the correct performance of the agreement, the costs of which will be passed on to the buyer, in accordance with the quotations issued. If possible and/or necessary, Dulimex will consult with the buyer in this regard.
9. If the delivered goods deviate from what has been agreed in terms of numbers, quantity and weights by less than 5%, the buyer will nevertheless be obliged to accept the delivered goods. In that case, the buyer is not entitled to delivery or return of the differences between what has been delivered and what has been agreed on, nor does the buyer have a right to claim compensation or dissolution of the agreement.

5. Complaints and warranty

1. The buyer is obliged to check the delivered goods or the packaging immediately upon delivery for any shortages and/or damage, or to carry out this check after notification from Dulimex that the goods are available to the buyer.
2. Any shortages and/or damage to the delivered goods and/or the packaging that are present at the time of delivery must be stated by the buyer on the packing slip, the invoice and/or the transport documents before he takes receipt of the goods and he must inform Dulimex within 3 x 24 hours.
3. Under penalty of forfeiture of rights, complaints will only be dealt with if they are made in writing and directly to Dulimex and are in the possession of Dulimex within eight days of delivery.
4. Complaints with regard to invoices must also be submitted in writing, within 8 days of the invoice date, under penalty of forfeiture of the right to complain.
5. Returning goods without permission from Dulimex does not give the buyer any rights. In all cases, returned goods will be shipped at the expense and risk of the buyer.
6. If a complaint is rightly made within the specified period and meets the relevant provisions, Dulimex is only obliged, at its discretion, to repair, replace the item or part, or to credit the relevant (partial) invoice amount. Under no circumstances is Dulimex obliged to pay compensation for other costs and/or (consequential) damage. The replaced goods remain/become the property of Dulimex.
7. The warranty period is a maximum of 12 months after delivery, unless Dulimex and the buyer have agreed on a longer period in writing. After repair or replacement, the original warranty period continues; no new warranty period starts unless otherwise agreed on in writing.
8. Products in respect of which a warranty claim is made must be sent to Dulimex carriage paid, after consultation with Dulimex. If Dulimex delivers new products in fulfilment of a warranty obligation, the originally delivered goods remain/become its property.
9. Defects that are partly or fully caused by the following are not covered by the warranty:
a. non-compliance with the operating and maintenance instructions or use other than its intended purpose;
b. normal wear and tear;
c. assembly/installation or repair by the purchaser or by third parties;
d. the application of any government instruction with regard to the nature or quality of the materials used;
e. materials and/or items used in consultation with the client;
f. materials or items provided by the buyer to Dulimex for processing;
g. materials, items, working methods and constructions insofar as applied on the instruction of the buyer, as well as materials and items supplied by or on behalf of the buyer;
h. parts obtained by the contractor from third parties, insofar as the third party has not provided a warranty to Dulimex or the warranty provided by the third party has expired.
10. Defects resulting from incorrect transport, storage, application or changes made by the buyer or third parties without the written consent of Dulimex also are not covered by the warranty.
11. For the repair, overhauls and maintenance work and similar services performed by Dulimex, unless agreed otherwise, a warranty is issued only for the soundness of the execution of the work assigned, for a period of six months. This warranty implies the sole obligation of Dulimex to redo the work in the event of faulty workmanship, if faulty. In that case, a new warranty period of six months applies, on the understanding that any warranty expires as soon as 12 months after the original work have passed.
12. If the buyer fails to meet any obligations applicable to him by virtue of the agreement concluded with Dulimex or related agreements, or fails to do so properly or in time, Dulimex is not obliged to fulfil its warranty obligations, by whatever name, with regard to any of these agreements. If the buyer proceeds to disassemble, repair or otherwise work on the product without prior written approval from Dulimex, any claim under the warranty will lapse.
13. Any warranty claim will lapse if parts other than those supplied by Dulimex are used.
14. The alleged non-fulfilment by Dulimex of its warranty obligations does not relieve the buyer of any obligations arising from any agreement entered into with Dulimex.

6. Retention of title

1. A retention of title within the meaning of Article 3:92 of the Dutch Civil Code applies to all delivered goods as follows.
2. Dulimex delivers the movable goods to the buyer under the suspensive condition that the buyer fully meets its obligations towards Dulimex at any time. The retention of title contained herein also extends to new goods made with the aforementioned movable goods:
a. claims regarding consideration for goods delivered or yet to be delivered by Dulimex to the buyer on the basis of a purchase agreement or any other agreement of whatever nature, or work also performed or to be performed for the benefit of the buyer under such an agreement; and
b. claims due to failure to comply with the agreements referred to under a, including compensation for damage and reimbursement of extrajudicial and judicial costs, contractual and statutory interest, fines and penalty payments.
3. As long as the aforementioned suspensive condition has not taken effect (fulfilled), the buyer has the right to alienate the goods purchased under retention of title, to transfer the actual control over those goods in whole or in part to one or more third parties or to enter into a legal act that leads to the obligation to transfer that actual control over the purchased goods in whole or in part to one or more third parties, on the understanding that
a. these powers only accrue to the buyer if and insofar as this is necessary or desirable in the context of the normal conduct of its business;
b. these powers only accrue to the buyer if and insofar as the buyer demands and obtains cash payment from the other party or stipulates an equally far-reaching retention of title from the other party as the present one, be it without the power of alienation for that other party;
c. the buyer never has any power to encumber the goods sold to him under retention of title; pledging these goods is not permitted and is not possible under property law.
4. The powers referred to under a to c above lapse if the buyer applies for (provisional) suspension of payment or a bankruptcy petition is filed by either the buyer or a third party or application of the Court Approval of a Private Composition (Prevention of Insolvency) Act is requested.
5. Dulimex is entitled to unimpeded access to the delivered goods. The buyer will fully cooperate with Dulimex in order to enable Dulimex to exercise the retention of title by taking back the delivered goods.
6. The buyer undertakes, should Dulimex so demand, to assign to Dulimex any claims that arise or will arise from the alienation of goods sold by Dulimex to third parties under retention of title or - at the discretion of Dulimex - to pledge them.
7. In the event of adaptation, processing or mixing of the goods by or at the other party, Dulimex will acquire the co-ownership right in the newly created good(s) or the main item for the value of the (original) goods delivered by Dulimex.

7. Force majeure

1. Dulimex is not obliged to fulfil any obligation under any agreement if it is unable to do so due to force majeure.
2. Force majeure is any circumstance as a result of which the normal performance of the agreement cannot reasonably be expected by the buyer, such as war or threat of war, irrespective of whether the Netherlands is directly involved or not, full or partial mobilisation, martial law, riots, sabotage, floods, fire or other destruction in factories or warehouses, lockouts, factory occupation, strikes, cybercrime, such as ransomware, defaulting manufacturers or suppliers for any reason, including pandemics, all in the broadest sense of the word.
3. If the force majeure situation has continued for more than ninety days, both Dulimex and the buyer have the right to terminate the agreement by dissolution. In that case, the buyer is not entitled to any compensation.

8. Liability

1. Dulimex is never liable for any damage suffered by the buyer, except in the event of intent or gross negligence on the part of Dulimex and/or its employees and subject to statutory liability based on mandatory provisions of law.
2. Liability for consequential, intangible, corporate or environmental losses and damage and/or damage or losses as a result of liability towards third parties is also explicitly excluded.
3. Dulimex does not in any case accept liability for damage caused by the negligent or careless use of the goods, or use contrary to the user instructions of the goods delivered or by the unsuitability of the goods delivered for the purpose for which the buyer purchased and/or used them.
4. If and insofar as, notwithstanding the foregoing, any liability rests on Dulimex, for whatever reason, this liability is limited to an amount equal to the net invoice value of the goods concerned, on the understanding that Dulimex will be liable at most and exclusively up to a maximum amount of €100,000 per claim. A series of connected incidents will be deemed a single event/claim for the purpose of this article.
5. The buyer indemnifies Dulimex against third-party claims on account of damage in connection with goods delivered by the buyer to these third parties, unless it has been established by law that these claims are a direct result of gross negligence or intent on the part of Dulimex and the buyer moreover demonstrates that he is not at fault in this regard.

9. Product liability in particular

1. To prevent incorrect and careless use, or use of the delivered products for purposes for which these products are not intended, buyers, who in turn sell, hire out, lease, etc. these products in the context of their commercial activities, are obliged to provide buyers, hirers, etc. with a good product description and user manual, which also complies with the applicable statutory rules.
2. Insofar as buyers do not make the products available directly to the end user, they must include the same clause in the agreements with their buyers.
3. If and insofar as Dulimex would be obliged to compensate damage arising from/caused by a defective product manufactured by Dulimex or imported into the EC as included in the (European and Dutch) regulations for defective products, Dulimex can recover from its buyers this damage in its entirety if they have not complied with the provisions of paragraphs 1 and 2 above.
4. If the buyers have complied with the provisions of paragraphs 1 and 2, they are only obliged to pay Dulimex 50% of the compensation to be paid by Dulimex.

10. Cancellation

1. In principle, the buyer cannot cancel an order. If the buyer nevertheless cancels an order in full or in part for whatever reason, he is obliged to compensate Dulimex for all costs reasonably incurred by the seller with a view to the execution of the order (such as preparations costs, etc.), without prejudice to the Dulimex’s right to compensation for lost profits and other damage.
2. In the event of cancellation, the buyer does in any case owe cancellation costs. These amount to 20% of the principal sum, to be increased by VAT and increased by €5.00 administration costs, unless Dulimex makes another arrangement in good consultation out of leniency.

11. Intellectual property rights

1. Dulimex reserves all its intellectual property rights in connection with the goods it supplies. Dulimex is and remains the exclusive owner of the copyright, the right of drawing or model or any other intellectual property right with regard to everything Dulimex has made in the context of the assignment given to it, until the parties have made a different agreement in writing.
2. The buyer is not permitted to change delivered products in whole or in part or to give them a different brand name, or to use the relevant brand in any other way or to register it in its own name.

12. Applicable law and disputes

1. The agreement and these general terms and conditions are governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
2. All disputes will be settled exclusively by the court of Gelderland, Arnhem location.