General terms and conditions of delivery
Markant Netherlands BV
Article 1: General
1. These general terms and conditions apply to the assumption and performance of all obligations between the companies registered in the Netherlands belonging to the Markant Group (including Markant Nederland B.V., Markant International B.V., Argo Office B.V., Markant R&D B.V.) with its registered office in Utrecht, the Netherlands, hereafter called ‘Markant’, and its customers or clients, hereafter called ‘the Buyer’, arising from any agreement or the law.
2. Markant shall not be bound by any departure from, addition to or clauses conflicting with these terms and conditions unless it has explicitly accepted same in writing.
3. If any provision in these terms and conditions appears to be contrary to any statutory rule, said provision shall be deemed to be modified to the extent required to comply with said rule. If no such modification is possible, said provision shall cease to apply without affecting the other provisions.
4. Markant explicitly rejects the applicability of any general terms and conditions of the Buyer. For the purposes of these terms and conditions, ‘goods’ shall be understood to include the supply of services, such as project support, project consultancy, assembly, programming and maintenance. ‘Buyer’ shall be understood to include any client or customer.
Article 2: Offer and Acceptance
1. All offers and quotations for the supply of goods or services submitted by or on behalf of Markant, including those made by any representative of Markant and regardless of whether the representative had authority to act, shall be free of obligation and may be revoked at all times.
2. An agreement shall be deemed to have been concluded upon Markant’s written confirmation.
3. In the event that Markant fails to confirm any agreement in writing, once a start on the supply of goods or services has been made, this shall constitute conclusive evidence of the existence and date of the agreement.
4. If an offer is accepted by the Buyer, Markant may nevertheless revoke same within two working days of such acceptance if Markant decides for any reason not to enter into an agreement.
Article 3: Prices and Delivery
1. Subject to any agreement to the contrary, delivery shall be made ex works. The delivery of goods to the Buyer shall take place at the time when the goods sold are made available to the Buyer. If Markant arranges for transport, the transport costs shall be payable by and the risk of loss of or damage to the goods shall pass to the Buyer as from the time of loading. Subject to any agreement to the contrary, prices quoted shall be exclusive of VAT, shipping, transport and insurance. Unless otherwise stated in Markant’s sales price list, offer or order confirmation, delivery in the Netherlands, Belgium and Luxembourg (the Benelux) shall be made carriage paid to border
2. Markant may at all times pass on increase in prices, including prices of raw materials, the introduction or increase of taxes and/or other levies, occurring after formation of the agreement, to the Buyer, regardless of whether these were foreseeable.
3. Markant may at all times deliver a separable order in two or more parts and invoice such parts immediately.
4. Markant reserves the right to supply goods cash on delivery.
5. Subject to any express written agreement to the contrary, the risk of loss of or damage to goods sold shall pass to the Buyer upon delivery.
6. Agreed delivery times shall not be of the essence. If any delivery time is exceeded, Markant shall enter into consultations with the Buyer.
7. The Buyer shall take delivery of the goods at the time when they are made available to the Buyer or when they are delivered to the Buyer in accordance with the agreement.
8. If the Buyer refuses to take delivery or fails to provide such information or instructions as are necessary to deliver the goods, the goods shall be stored at the Buyer’s risk, with the Buyer being charged the additional costs, in any case including the storage costs.
9. In principle, once delivered, goods will not be taken back by Markant. If, for any reason, Markant expressly allows the Buyer to return any goods, they shall be transported at the Buyer’s risk, with the loading, shipping, storage and other associated costs being paid by the buyer.
Article 4: Project Support and Project Consultancy
1. The costs of preparing CAD drawings, collations and presentations and the costs of project support shall be charged to the buyer.
2. Markant shall provide any advice, presentations, instructions and so on to the best of its ability. However, Markant does not guarantee that same will produce the results desired by the Buyer.
Article 5: Complaints
1. The Buyer shall inspect, or have others inspect, the goods upon delivery in terms of their quantity, quality, kind and other characteristics without delay and report any variances to Markant without delay, whilst at the same time sending written confirmation of same.
2. In all cases, the question of whether the goods meet the agreed requirements shall be answered on the basis of the state of the goods upon delivery.
3. Any goods about which the Buyer has lodged a complaint may not be used and shall be stored in one or more suitable places, to which Markant must be allowed immediate access. The Buyer may not return these goods without Markant’s permission. However, if it does, it must pay the ensuing costs.
4. If the Buyer fails to lodge a complaint within the period stated in Article 7.3, confirm the complaint in writing, or meet the requirement of Article 5.3, the Buyer shall be deemed to have accepted the goods delivered as being of sound quality in all respects and to have relinquished any causes of action in that regard.
5. The right to complain shall lapse once all or any part of the goods delivered have been put to use.
Article 6: Retention of Title
1. Title to the goods sold and delivered by Markant to the Buyer shall pass to the Buyer if and as soon as the Buyer has fully met all of its obligations towards Markant.
2. The term ‘obligations’ as used in Article 6.1 shall be understood to include any damages, including any interest, penalties and costs, which the Buyer may owe Markant for failure to meet such obligations properly, on time or at all.
3. The Buyer shall be under an obligation to take out and maintain insurance to cover the goods which have been delivered subject to retention of title against any damage by fire, explosion or water conditions and against theft, pledge all its claims against the insurers to Markant and submit the insurance policy for inspection to Markant.
4. The Buyer may only sell goods delivered by Markant subject to retention of title in the normal course of the Buyer’s business operations. In such cases, the Buyer shall be obliged also to retain title to those goods when delivering same.
5. The Buyer may not pledge or otherwise encumber any of the goods delivered by Markant subject to retention of title.
6. If the Buyer fails to meet its obligations imposed under Articles 6.3 and/or 6.4 or there is good reason to fear that this will be the case, Markant may repossess or have others repossess the goods from the Buyer or from any third party keeping the goods in custody for the Buyer. The Buyer shall be under an obligation to assist in any such repossession, failing which it shall owe Markant a penalty of 10% (ten per cent) of the amount owed by the Buyer for each day the Buyer continues to default. The amount owed by the Buyer shall remain fully payable upon demand.
Article 7: Liability
1. Markant shall not accept liability for any defect in goods delivered if caused by any defect in a product supplied to Markant by a third party.
2. If Markant is liable for any defect arisen in the course of any act performed by or attributable to Markant, and Article 7.1 does not apply, Markant’s liability shall be limited to the insurance money if and to the extent that the insurance covers such liability. If the insurance company does not pay out or the damage is not covered by the insurance, Markant’s liability shall be limited to the net invoice value of the relevant goods or services supplied, subject to a maximum of € 2,500.00 (twenty-five hundred euro).
3. Any defect in goods or services supplied by Markant must be invoked by the Buyer as against Markant within eight working days of the Buyer having discovered or having reasonably been able to discover same.
4. Any cause for an action for damages based on Markant’s liability for any defect in goods or services supplied shall become barred one year after the date of delivery.
5. Markant’s liability for any damage resulting from an act, omission or error on the part of a person who is not on Markant’s payroll but whose services Markant has engaged shall be limited in accordance with Article 7.2.
6. If any person as referred to in Article 7.5 is called to account for any damage caused by him when performing work for Markant, said person shall be entitled to rely on the limitation or exclusion of liability clause stipulated by Markant as against Markant’s client or customer.
7. Markant shall not accept liability for any consequential damage suffered by the Buyer.
Article 8: Dissolution
1. The Buyer’s right to have an agreement dissolved out of court on the grounds of any failure by Markant to perform its obligations is hereby excluded.
2. An agreement shall be deemed to have been dissolved by operation of law if and as soon as the Buyer refuses to take delivery of the goods purchased without good cause, without this affecting Markant’s right to be reimbursed for the value of such goods and its right to damages.
Article 9: Damages
1. Without prejudice to Markant’s right to damages for any failure by the Buyer to perform an agreement, the Buyer shall reimburse Markant for any additional losses it may suffer as a result of the Buyer’s failure.
2. The term ‘losses’ as used in Article 9.1 shall in any case include:
- Interest at a rate of 1% per month on any overdue amounts as from the day of the Buyer’s default until the day of full payment;
- All collections costs, including the costs of any return bills of lading, receipts, complaints and all such judicial and extra-judicial collection costs as Markant considers it necessarily incurred, including lawyers’ fees, which collection costs shall be fixed at 15% of the overdue amount, subject to a maximum of € 250.00 (two hundred and fifty euro).
Article 10: Passing of Rights
If Markant grants or is deemed to have granted the Buyer any warranty or other right in connection with any of the goods sold, said warranty or right shall not pass to the person who subsequently acquires same processed or unprocessed from the Buyer by contract or any other act of the Buyer and/or said person.
Article 11: Force Majeure
1. Any failure by Markant to meet its obligations as a result of circumstances beyond its control and which will not entitle the Buyer to any damages other than on the grounds of unjust enrichment shall include:
a. any failure inevitably resulting from a natural disaster, war, threat of war or warlike conditions, uprisings or serious rioting;
b. any failure resulting from:
- The interrupted supply of finished products as a result of unforeseen weather conditions;
- Illness of staff on such a scale as to reasonably prevent proper and/or timely performance;
- Strikes, work stoppages, picketing or similar actions at or mounted against the business of Markant or its suppliers or against the businesses of any third parties engaged by Markant;
- Damage to business assets as a result of fire, gales or other unforeseen external causes;
- Any measures introduced by a national or an international government authority.
2. Once an agreement has been concluded, if Markant has good reason to believe that the Buyer is insufficiently creditworthy or that it is failing to make payment within the applicable payment period or at all, Markant may postpone its delivery obligations and demand that the Buyer immediately pay the amount due or provide security for same, regardless of the agreed payment conditions.
Article 12: Payment
1. Unless otherwise stated in the invoice, payment must be made within 30 days of the invoice date, without applying any deduction or set-off. Markant may demand payment in cash or a down payment at all times. If the Buyer is established outside the Netherlands, payment has to be made in advance – i.e. prior tot delivery -, unless explicitly otherwise agreed upon.
2. In the event of any liquidation or bankruptcy of or suspension of payments by the Buyer, Markant may claim immediate performance of the Buyer’s obligations.
3. If the Buyer fails to meet the deadline specified in Article 12.1, it shall be deemed to be in default without any notice of default being necessary and owe interest as from that date in accordance with Article 9.2.
4. In the event of late payment, Markant may postpone the delivery of other goods in connection with the agreement or terminate part of the agreement without court order, and claim full damages from the Buyer.
5. Subject to any express written statement from Markant to the contrary, payment by the Buyer shall be applied first to satisfy any interest and collection costs due and then to pay the Buyer’s oldest outstanding debt to Markant, regardless of the amount paid and instructions issued by the Buyer.
6. Any payment made to a representative of Markant in connection with goods supplied by Markant shall not release the Buyer from its payment obligations towards Markant.
7. All charges, commission fees, taxes and other expenses howsoever named and owed in connection with the payment for the goods - regardless of the method of payment - or related transfer of money shall be payable by the Buyer.
Article 13: Intellectual Property
1. All data and records manufactured by Markant, whether or not in the context of a specific order or delivery, and all intellectual property rights therein shall unconditionally remain with Markant. No part of such data or records may be reproduced and/or disclosed and/or submitted to any third party for any purpose whatsoever without Markant’s express written permission. The Buyer shall be liable towards Markant for any damage caused as a result of any third party having access to such data or records.
2. Any data and records which the Buyer receives from Markant shall become the Buyer’s property and may be used by the Buyer on condition that it meets its financial obligations towards Markant. The intellectual property rights in same shall remain with Markant.
3. In the event of Markant using any data or records obtained from the Buyer or from any third party via the Buyer, the Buyer guarantees that such use will not infringe the intellectual property rights of any third party and shall indemnify and hold Markant harmless from any claims arising from such use.
If any third party asserts any alleged right against Markant as envisaged in the preceding sentence, Markant shall be entitled on this basis alone to cease using the relevant documents with immediate effect and demand reimbursement of all costs incurred from the Buyer, without this affecting Markant’s right to additional compensation and without Markant incurring any liability for damages to the Buyer.
Article 14: Applicable law and competent court
1. All agreements made by Markant, the conclusion, performance and interpretation of same and all acts performed by Markant shall be governed exclusively by the laws of the Netherlands.
2. Any dispute arising from an agreement or act referred to in the preceding sentence, even if considered a dispute by only one party, shall be submitted for resolution to the competent court in Utrecht, the Netherlands.