Terms of Delivery
GENERAL TERMS AND CONDITIONS OF THE PRIVATE COMPANY WITH LIMITED LIABILITY CALLED JALEMA B.V., HAVING ITS REGISTERED OFFICE AND ITS PRINCIPAL PLACE OF BUSINESS IN REUVER, LISTED IN THE TRADE REGISTER IN VENLO UNDER FILE NUMBER 12059837
ARTICLE 1 APPLICABILITY AND DEFINITIONS
1. These General Terms and Conditions shall apply to all our offers and agreements. They shall especially apply to all our sales and deliveries of items such as office supplies, files and filing systems in the broadest sense of the word. These terms and conditions shall also apply to all our services, including assembly and maintenance operations and the designing and provision of software.
2. In these General Terms and Conditions the other party shall be understood to be: the natural person or legal person receiving offers from Jalema B.V. or entering into agreements with Jalema B.V.
3. If one or several provisions of these General Terms and Conditions should appear to be void or be annulled, this shall not prejudice the legal effect of the other provisions.
ARTICLE 2 THE OTHER PARTY’S GENERAL TERMS AND CONDITIONS AND VARYING ARRANGEMENTS
1. The other party’s general terms of payment, delivery and purchase shall not apply to our offers and agreements entered into with Jalema B.V.
2. Arrangements between Jalema B.V. and the other party which are at variance with our General Terms and Conditions shall only be deemed to be agreed if we have confirmed these arrangements in writing.
ARTICLE 3 OFFERS, AGREEMENTS AND PRICES
1. All offers shall always be without commitment. If an offer is accepted by the other party, we shall be entitled to revoke the offer within five working days after receipt of the acceptance.
2. Documentation, information, appendices and enclosures provided by Jalema B.V. together with the offer, shall be informatory and shall only contain a general description.
3. We shall reserve all intellectual and industrial property rights with respect to the designs, models, illustrations, drawings, diagrams and other documentation submitted together with the offer. All these matters shall remain our property and shall not be copied, disclosed to or put at the disposal of third parties, neither in full nor in part, or be used in any other manner in any dealings with third parties.
4. Unless expressly agreed otherwise, no handling costs shall be charged for deliveries within The Netherlands with an invoice amount exceeding € 175.00 (exclusive of VAT). For deliveries within The Netherlands with an invoice amount below € 175.00 (exclusive of VAT) € 11.00 handling costs shall be charged to the other party. Unless expressly stated otherwise in the offer, deliveries outside The Netherlands shall be effected ex works.
5. All prices shall be in euros, exclusive of VAT and exclusive of packing, unless stated otherwise in the offer.
6. All orders or assignments accepted by representatives, commercial agents, intermediaries or employees, shall not be binding until Jalema B.V. has confirmed these orders or assignments in writing.
7. If the offer or the agreement refers to document files specially manufactured to the other party’s specification and deviating from Jalema B.V.’s standard assortment, we shall be entitled to supply and invoice at most 10% more or less to the other party than was stated in the offer or agreement.
ARTICLE 4 PERIOD OF DELIVERY, DELIVERY, AND RISK
1. The periods of delivery stated shall be deemed to be indicative and shall never be deemed to be a statutory limit, unless expressly agreed otherwise in writing.
2. Except in the event of gross negligence or intention on our part the other party cannot claim damages and/or dissolution of the agreement when the period of delivery is exceeded by no more than 30 days. If the time of delivery is exceeded by more than 30 days, the other party must declare Jalema B.V. in default in writing. The period of delivery shall commence on the day on which the other party has received a written confirmation of the creation of the agreement from Jalema B.V., but not before the other party has met all possible particulars relating to the execution of the agreement, which must be effected first by the other party.
4. We shall be authorised to perform in parts and to invoice partial deliveries.
5. Subject to the provisions with respect to handling costs in Article 3, Paragraph 4, delivery shall be effected ex works, in conformity with Incoterms 2000. The risk of damage, destruction or loss of items to be delivered, shall pass to the other party as soon as these items have left Jalema B.V.’s factory, also if Jalema B.V. arranges transport on behalf of the other party.
ARTICLE 5 ASSEMBLY
1. The other party shall see to it that Jalema B.V.’s employees are able to perform assembly operations during normal working hours without being disturbed, making use of all necessary facilities (such as gas, water, light, power supply, sanitary facilities and storage capacity for items to be assembled) at the expense of the other party.
2. The other party shall see to it at its own expense and risk that activities not covered by the agreement (such as electrotechnical operations, chopping, breaking, bricklaying, plastering and/or painting) are effected in the proper manner before assembly operations are commenced.
ARTICLE 6 FORCE MAJEURE
A failure in the performance of the agreement by Jalema B.V., shall not be imputed to Jalema B.V. , inter alia, if the causes of this failure do not lie with us or if they do not fall within our scope of risk. Causes as referred to in the previous sentence shall include, without limitation, war, threat of war, civil war, terrorism, riots, risk of civil commotion, fire, water damage, floods, industrial action, sit-down strikes, import and export restrictions, government measures, defective machines, failures in the supply of gas, water and electricity, stagnation or interruption of deliveries from third parties from which we have to purchase (raw) materials or parts for the execution of the agreement as well as computer failures or Internet and/or other network failures.
ARTICLE 7 EXCLUSION AND LIMITATION OF LIABILITY
1. Jalema B.V.’s liability for any direct loss of the other party attributable to Jalema B.V.’s failure in fulfilling the agreement, shall be limited to the agreed price, except in the event of gross negligence or intention or liability on the basis of mandatory provisions.
2. Jalema B.V. shall not be liable for any consequential loss, trading loss, loss of profits, loss arising from damage to or loss of files or loss inflicted to persons and/or items, including death or injury, except in the event of gross negligence or intention or liability on the basis of mandatory provisions, unless and expressly insofar as this loss is covered by a contract of insurance effected by Jalema B.V.
ARTICLE 8 COMPLAINTS
1. The other party shall be obliged to inspect whether the items delivered comply with the agreement immediately on delivery, or, if this is not possible, within 5 days after the delivery of the items.
2. The other party shall notify Jalema B.V. in writing of any shortcomings forthwith after discovery, but at any rate within 10 days after delivery.
3. Items which do not comply with the agreement must be returned to Jalema B.V. within 14 days after delivery, with a reference to the number of the packing note or invoice, carriage paid;
4. Only undamaged items in the original (manufacturer’s) packing, without any advertising, trade names, markings and other information affixed by the other party, shall be eligible for crediting.
ARTICLE 9 TERMS OF PAYMENT
1. Payment of invoices sent by Jalema B.V. shall be made within 30 days after the invoice date, unless agreed otherwise in writing. On payment within 8 days after the invoice date the other party shall be entitled to deduct 1% of the invoice amount (exclusive of VAT).
2. The other party shall not rely upon the right of set-off or the right to suspend payment.
3. After the period referred to in Paragraph 1 has expired, the invoice amount shall be payable on demand. The other party shall then be in default by operation of law without notice of default being required.
4. After the period referred to in Paragraph 1 has expired, we shall be entitled to charge a monthly interest of 1.5% on the outstanding amount from the date on which the other party is in default until the date on which payment is made in full.
5. Payments made by the other party shall first serve to settle all costs due, subsequently to settle the interest and then to settle the oldest invoices payable, even if the other party states that the settlement refers to a later invoice.
6. If the other party has failed to fulfil its obligations to pay in time, as referred to in Paragraph 1, the other party shall be obliged to pay in full all extrajudicial costs, court costs and costs of legal assistance incurred by Jalema B.V. These costs shall include costs other and/or higher than the court costs to be budgeted in accordance with the law.
7. Subject to the provisions in Paragraph 3, the other party shall be in default by operation of law in the event of (a petition for) bankruptcy or involuntary liquidation, (a petition for) suspension of payments, the closing down or winding up of the other party’s company or if the other party is placed under tutelage, without notice of default being required.
8. In the cases referred to in the previous Paragraph we have - at our option - the right to suspend the execution of the agreement or to dissolve the agreement in full or in part by means of a written statement without judicial intervention, without prejudice to our right to claim damages in full.
ARTICLE 10 RETENTION OF TITLE
1. Jalema B.V. shall retain the ownership of the items delivered by us until the other party has fulfilled all the following obligations arising from all agreements entered into with Jalema B.V.:
- the consideration(s) relating to items delivered or to be delivered;
- the consideration(s) relating to services provided or to be provided by Jalema B.V. pursuant to the agreement;
- any claims in connection with the non-fulfilment by the other party of (an) agreement(s) entered into with Jalema B.V.
2. Items delivered by Jalema B.V. which fall within the retention of title, may only be resold if this forms part of the normal business operations. The other party shall not be entitled to pledge the items delivered or to establish any other right on these items.
ARTICLE 11 CONDITIONS RELATING TO SOFTWARE AND ELECTRONIC SERVICES
1. In these conditions software shall be understood to be: computer programmes and the accompanying documentation for which Jalema B.V. has granted the other party a right of use. Electronic services shall be understood to be the right, granted by Jalema B.V. to the other party, to use facilities and functionalities for storing, consulting and/or processing messages, information and/or data via electronic communication.
2. Unless expressly agreed otherwise in writing, Jalema B.V. shall exclusively grant the other party a non-exclusive and non-transferable right to use the software and the electronic services within its own company. The non-exclusive right of use shall end immediately by operation of law when the other party itself or a third party intends to file a petition for suspension of payments or a petition for bankruptcy or involuntary liquidation of the other party, or when the other party has been granted a suspension of payments or has been put into bankruptcy or involuntary liquidation.
3. The other party shall not be permitted to copy, modify or adapt the software and/or their source code or put the software and/or their source code at the disposal of third parties without prior written permission from Jalema B.V., except to the extent permitted by law.
4. Unless expressly agreed otherwise in writing, Jalema B.V. shall not be obliged to make the source code of the software available to the other party.
5. If Jalema B.V. has entered into an acceptance procedure with the other party, the other party shall notify Jalema B.V. in writing of any shortcomings within 14 days after the commencement of the acceptance procedure, failing which the software delivered shall be deemed to have been accepted. If no acceptance procedure has been agreed, the other party shall be obliged to inspect whether the software or the electronic service delivered complies with the agreement immediately after the delivery of the software or the electronic service. The other party shall notify Jalema B.V. in writing of any shortcomings within 14 days after delivery of the software or the electronic service, failing which the software or the electronic service shall be deemed to have been accepted.
6. If maintenance of the software has been agreed with the other party, Jalema B.V. shall make every effort to remedy shortcomings of which it has been notified in writing. The other party shall at all times be expected to have at most one recent back-up copy of the software and the data.
Within the framework of the maintenance agreement Jalema B.V. shall make technical improvements of the software at the agreed rates. On delivery of a new version of the software every obligation to maintain the old version shall cease to be applicable.
7. All intellectual property rights in connection with the agreement, including, without limitation, copyrights and patent rights relating to all software, electronic services and other works and/or products developed for the other party or put at the other party’s disposal, shall exclusively belong to Jalema B.V. (or its licenser).
8. Subject to the provisions in Article 7, Jalema B.V. shall not be liable for any loss arising from or connected with the use of the software or electronic services, such as loss resulting from damage to or loss of data, transmission errors, loss resulting from failures in the availability, accessibility, response times as well as loss resulting from necessary maintenance operations, security incidents and/or failures in the interoperability of software or hardware.
ARTICLE 12 PRESCRIPTION
The other party’s rights of action shall be prescribed by a maximum of eighteen months after the creation of these rights.
ARTICLE 13 DISPUTES AND APPLICABLE LAW
1. All our offers and agreements shall be governed by Dutch law.
2. The District Court of Roermond shall have exclusive jurisdiction in disputes which may arise between Jalema B.V. and the other party, with the exception of disputes in which the Subdistrict Court shall in the first instance have jurisdiction.