1. These conditions apply to every tender, offer and agreement between Moutontrading B.V and all its other group companies, shareholders and authorised representatives of this subsidiary, hereinafter referred to as: “Moutontrading” and any Counterparty in respect of whom Moutontrading has declared that these conditions apply, to the extent that these conditions are not expressly excluded in writing by the parties.
2. The present conditions are equally applicable to any agreements with Moutontrading, the performance of which requires the involvement of third parties.
3. The present conditions apply equally to the employees and directors of Moutontrading.
4. The application of any purchasing or other terms of the Counterparty is expressly excluded.
5. If one or more of the provisions of these general terms and conditions should be void or be nullified, then the remainder of these general terms and conditions shall continue to apply in full. Moutontrading and the Counterparty shall in that case enter into discussion in order to agree new provisions to replace the void or nullified provisions, whereby the intention and tenor of the original provisions shall be taken as far as possible into account.
6. Should there be uncertainty regarding the meaning of one or more provisions of these general terms and conditions, then they are to be interpreted in the spirit of these provisions.
7. In the event of an occurrence not covered by these general terms and conditions, then the situations shall be considered in the spirit of these general terms and conditions.
8. Any failure by Moutontrading to strictly enforce these general terms and conditions shall not render them unenforceable and shall not in any way diminish Moutontrading’s right to insist on strict compliance with these terms and conditions on other occasions.
Article 2. Offers and tenders
1. All offers and tenders by Moutontrading remain open in the absence of any stipulation of a period for acceptance in the offer. An offer shall end if the product which was the subject of the offer is no longer available. In the absence of any specified period of acceptance an offer shall end no later than 15 days after the date of the offer.
2. Moutontrading shall not be bound by its offers or tenders if the Counterparty can reasonably be expected to understand that the offer or tender, or any part thereof, is obviously based on a mistake or contains an error.
3. Prices stated in an offer or tender do not include BTW (VAT) and other government taxes and duties, and they are stated exclusive of costs related to the agreement, such as travel, accommodation and administration costs, unless otherwise stated.
4. Contrary to the terms of article 6:225, clause 2 of the Burgerlijk Wetboek,
Moutontrading is not bound by any changes to the offer or order confirmation made by Moutontrading, which may be contained in the acceptance given by the Counterparty.
5. A combined price proposal does not bind Moutontrading to supply a part of the proposal for a similar proportion of the stated price. Tenders and offers do not automatically apply to future orders.
Article 3. Delivery
1. Unless otherwise agreed, delivery takes place ex factory. If one of the Incoterms is incorporated as a delivery term, the Incoterms ruling at the time of entry into agreement shall apply.
2. The Counterparty is bound to accept the product at the moment it is delivered or, under the terms of the agreement, it is placed at the disposal of the Counterparty.
3. If the purchaser refuses delivery or is negligent in providing information or instructions that are necessary for delivery, the goods will be stored at the expense and risk of the Counterparty. In that case the Counterparty shall be responsible for all additional costs, including in any case the storage costs.
4. Products may vary from the displayed version in model and in packaging. Moutontrading guarantees that the properties of the goods delivered conform to the product that was originally offered. A variation in the product delivered that is within the stated variation tolerance does not afford the Counterparty the right to reject the product purchased, neither does it create any right to seek damages or right of replacement of the product
Article 4. Delivery period
1. Delivery periods and other performance times stated by Moutontrading in offers and agreements are estimates and purely for information, and are not fundamental terms; failure to meet them affords the Counterparty no right to damages or termination.
2. In the event of late delivery the Counterparty shall inform Moutontrading of the breach in writing, and shall permit Moutontrading a reasonable period of time to fulfil its obligations.
3. The period stated by Moutontrading for delivery only commences from the moment Moutontrading possesses all necessary information.
Article 5. Partial delivery
1. Moutontrading has the right to deliver goods sold in instalments. This does not apply to any partial delivery that has no separate value. If goods are delivered in instalments, Moutontrading has the right to invoice each instalment separately.
2. Moutontrading has the right to delay performance of its obligations until the Counterparty has complied with all legitimate demands of Moutontrading.
Article 6. Technical requirements
1. If the goods are to be delivered in the Netherlands but are to be used outside the Netherlands, Moutontrading is not responsible for compliance of the goods with the technical requirements, standards and/or legal and other regulations of the land in which the goods are to be use. This does not apply if at the time of entering into agreement the use of the goods is expressly referred to and all necessary information and specifications are discussed.
2. All technical requirements of the Counterparty in relation to the goods to be delivered and any departure from the requirements that generally apply must be expressly stated by the Counterparty before completion of the purchase agreement.
Article 7. Samples, models and examples
If Moutontrading displays a model, sample or example, this is assumed to be displayed as an indication: the qualities of the goods delivered can vary from the sample, model or example, unless it is expressly stated that the goods delivered should conform to the sample, model or example.
Article 8. Termination of Contract
1. A contract between Moutontrading and the Counterparty can be terminated immediately, without recourse to legal proceedings, in the following circumstances:
- if after entering into the contract Moutontrading becomes aware of circumstances giving Moutontrading good reason to fear that the Counterparty will not comply with its obligations;
- if Moutontrading has asked the Counterparty at the time of entering into contract to provide security for performance of its obligations (for example a bank guarantee) and this security remains outstanding or insufficient, in spite of summons.
In the stated circumstances Moutontrading is entitled to delay further performance of the contract, or to choose to terminate the contract, without diminishing the right of Moutontrading to claim for damages.
2. If circumstances emerge relating to persons and/or materials that Moutontrading uses or is accustomed to using in performance of the contract, which are of such a nature that performance of the contract becomes impossible or so burdensome or unreasonably expensive that performance of the contract can no longer reasonably be demanded, then Moutontrading is entitled to terminate the contract.
Article 9. Guarantee
1. Moutontrading guarantees that the goods it delivers are free of faults in development, material or manufacture for the period of one month following delivery.
2. If goods display evidence of faulty development, materials or manufacture, the Counterparty is entitled to repair of the goods. Moutontrading can choose to replace the goods if repair is problematical. The Counterparty is only entitled to replacement if repair of the goods is impossible.
3. The guarantee does not apply to damage resulting from improper use or failure to follow instructions correctly.
4. Improper use includes:
- incorrect storage, packing and transport of the goods
- careless/inappropriate use of the goods.
5. If the guarantee relates to a product that is produced by a third party then the guarantee is limited to the guarantee given by the producer of the goods.
6. The Counterparty cannot make any use of the stated guarantee provisions until full payment has been made for the goods delivered, in compliance with the invoice from Moutontrading.
Article 10. Reservation of title
1. All goods delivered by Moutontrading remain the property of Moutontrading until the Counterparty has complied with all its obligations under all purchase agreements entered into with Moutontrading.
2. Goods delivered by Moutontrading, which under the terms of clause 1 are subject to reservation of title, can only be resold in the normal course of business and may never be used as a means of payment.
3. The Counterparty is not entitled to pledge goods which are subject to reservation of title, nor in any other way to subject them to any impediment.
4. The Counterparty hereby unconditionally and irrevocably authorises Moutontrading and its appointed agents, in the event that Moutontrading wishes to exercise its rights of ownership, to enter any premises where the property of Moutontrading is situated, and to remove the goods from there.
5. In the event that third parties should seize goods sold subject to reservation of title or should seek to make or enforce any claim on them, the Counterparty is bound to inform Moutontrading of this as quickly as can reasonably be expected.
6. The Counterparty is obliged to insure goods sold subject to reservation of title and to keep them insured for all risks such as fire, explosion, water damage and theft, and to make the insurance policy immediately available for inspection upon request.
7. If Moutontrading enforces its rights of ownership on goods subject to reservation of title under clause 1, and recovers these goods and delivers them to a third party, then the total amount that Moutontrading shall be entitled to recover from the Counterparty in enforcing its rights under this agreement shall be reduced by the market value of the goods recovered at time of recovery. The market value is in any case equal to the sale price realised by private or public sale of the goods recovered to third parties, this at the choice of Moutontrading. The Counterpart is accountable for recovery costs.
8. Moutontrading is entitled to recover from the Counterparty such goods as shall realise sufficient sale proceeds via the intended private or public sale, to recover the entire claims of Moutontrading, including costs, interest as determined by the law, and any damages.
Article 11. Breach; period of claim
1. The Counterparty shall inspect or arrange inspection of the goods purchased within 3 hours following delivery. The Counterparty is hereby responsible for checking whether the goods comply with the contract, namely:
- whether the correct goods are delivered;
- whether the goods delivered comply with the agreed quantity;
- whether the goods delivered comply with the agreed quality standards or, in the absence of agreed quality standards, with the requirements for normal use and/or business requirements.
2. If visible defect or shortage is detected, the purchaser must immediately notify Moutontrading of this in writing, within 24 hours.
3. Defects which are not visible must be reported by the Counterparty in writing to Moutontrading within two days of detection, and in any case no later than 1 week following delivery.
4. Even if the Counterparty makes a claim within the time permitted, it remains bound to make payment and to accept delivery of orders made.
5. Goods may only be returned following written permission from Moutontrading.
6. Claims against Moutontrading in respect of any failure to perform its obligations under the contract expire one year after completion of the contract.
Article 12. Packaging
1. The purchaser is bound within 14 days to return in an empty and undamaged condition, all packing materials which are on loan, meaning pallets and other material intended to ensure safe delivery, not including cardboard and other protective strips etc. The purchaser is responsible for all costs resulting from a failure to comply with its obligations in respect of packaging. Such costs include costs resulting from late return and costs of replacement, repair or cleaning.
2. If the Counterparty fails to return loan packaging following a warning, within the time period stated in the warning, Moutontrading is entitled to opt for replacement and to recover the cost of this, provided Moutontrading has announced these steps in its warning.
Article 13. Price/ price increase
1.Unless expressly otherwise stated prices given by Moutontrading are stated:
- in Euro’s
- excluding BTW (VAT)
- on the basis of the minimum order quantities traded by Moutontrading
- excluding transport costs
- ex factory/warehouse
2. If Moutontrading and the Counterparty have agreed a price Moutontrading is nevertheless entitled to increase the price if it can demonstrate that between the time of offer and delivery, significant price changes have occurred in respect of raw materials, exchange rates and/or wages, or otherwise unforeseen circumstances.
3. If the price increase is greater than 10% the Counterparty is entitled to terminate the agreement.
Article 14. Payment
1. In the absence of other agreement payment is due within 30 days of invoice date in a manner to be determined by Moutontrading, in the invoiced currency.
2. Following the elapse of 30 days after invoice date the Counterparty is legally in breach; from the moment of becoming in breach the Counterparty is liable for interest on the amount due at the rate of 1% per month, unless the interest rate fixed by law is higher, in which case the rate of interest fixed by law shall apply.
3. In the event of liquidation, bankruptcy, or an arrangement with creditors of the Counterparty, the claims of Moutontrading and the obligations of the Counterparty in respect of Moutontrading shall become immediately enforceable.
4. Payment is due without deduction or bank charges.
5. Payments made by the Counterparty will be applied firstly in settlement of all interest and recoverable costs, and secondly in settlement of invoices that remain unpaid the longest, even if the Counterparty states that the payment relates to a later invoice.
6. Moutontrading is at all times entitled to request advance payment from the Counterparty. If advance payment is requested, Moutontrading will only commence ordering goods for the Counterparty once the advance payment has been made.
7. For orders of € 15.000,-- or more the Counterparty shall arrange a bank guarantee in favour of Moutontrading for the value of the goods ordered.
Article 15. Settlement costs
1. If the Counterparty is in breach or neglects to comply with one or more of its obligations, then the Counterparty is responsible for all legal and out of court costs incurred in obtaining settlement. In any case the Counterparty will be charged:
- on the first € 6.500,-- : 15%
- on the excess up to € 13.000,-- : 10%
- on the excess up to € 32.500,-- : 8%
- on the excess up to € 130.000,-- : 5%
- on the excess up to € 130.000,-- : 3%
2. If Moutontrading demonstrates that it has incurred higher costs, which are reasonably necessary, these are also recoverable
Article 16. Responsibility
Moutontrading is only responsible to the Counterparty in respect of the following:
1. For damage resulting from faulty goods delivered, the only responsibility is as described in Article 9 (Guarantee) of these terms and conditions.
2. Moutontrading is exclusively liable for damage caused deliberately or through gross misconduct of the company or its subordinates;
3. The responsibility of Moutontrading is limited to the amount that Moutontrading’s insurance pays out in the present case.
4. If the insurance offers no cover in a particular case or fails to make payment then Moutontrading’s responsibility is limited to the invoice value of the transaction, at least that part of the invoice value of the transaction that the responsibility relates to.
5. Moutontrading accepts no responsibility for damage arising during assembly by Moutontrading of its products, which is caused by the state of repair of the premises where the Counterparty is located. Moutontrading also expressly excludes responsibility for damage that may occur during assembly in relation to the construction of the building of the Counterparty, or parts of it, if this is not visible to Moutontrading or its subordinates. The Counterparty undertakes first to inform Moutontrading fully and in detail in respect of the construction of the building or the parts of it where assembly of the purchased products is to take place.
By not providing Moutontrading in writing with information, or by providing incomplete information, the Counterparty expressly accepts all responsibility for damage which arises from the failure to provide information, or complete information.
Article 17. Acts of God
1. In these general terms and conditions Act of God means, in addition to the general meaning given to the term in jurisprudence, all external causes, foreseen or unforeseen, which are beyond Moutontrading’s influence, but which prevent Moutontrading from performing its obligations, including interruptions to supply and industrial action within the business of Moutontrading.
2. During an Act of God the delivery and other obligations of Moutontrading are suspended. Should the period during which Moutontrading is unable to perform its obligations due to Act of God last longer than 3 months, both parties are entitled to terminate the contract, without giving rise to any claim for damages.
3. If Moutontrading has fulfilled a part of its obligations on the occurrence of an Act of God, or is only able to partially perform its obligations, it is entitled to invoice the part already delivered or the part that can be delivered separately, and the buyer is bound to honour this invoice as if it were a separate transaction. This does not however apply if the part already delivered or the part that can be delivered is of no separate value.
Article 18. Cancellation
1. Upon cancellation of an order 90 days or more before the agreed delivery date 25% of the gross order amount is payable.
2. Upon cancellation of an order between 60 and 90 days before the agreed delivery date 50% of the gross order amount is payable.
3. Upon cancellation of an order up to 60 days before the agreed delivery date 100% of the gross order amount is payable.
Article 19. Applicable law and jurisdiction
1. Dutch law shall apply to all contracts between Moutontrading and the Counterparty. The Weens Koopverdrag (CISG) is expressly excluded.
2. Any dispute between the Counterparty and Moutontrading shall be laid before the competent judge of the court in the district of Moutontrading’s registered office.
3. The place of performance of the contract shall be deemed to be the place of establishment of Moutontrading.
Article 20. Variation and location of the terms and conditions
These terms and conditions are deposited at the office of the Chamber of Commerce in Tilburg. The most recently deposited version always applies.