General Terms and Conditions
Article 1. Definitions and terms
In these general terms and conditions, the following terms are used as defined below, unless expressly stated otherwise:
Duroflame B.V.: the user of these general terms and conditions, having its registered offices in Bedum (Netherlands), hereinafter to be referred to as Duroflame.
Terms and conditions: These general terms and conditions (of sale and delivery).
Other party: the natural or business or professional party that orders and/or purchases goods from or via Duroflame.
Agreement: the agreement between Duroflame and the other party relating to the delivery of products and services.
Delivery: the actual offering of the goods purchased and/or the agreed goods to the other party.
Written: by letter, email, fax or any other means of communication which, in view of the state of the art and the views prevailing in society, may be equated with this.
Work: the entirety of the work agreed between the other party and Duroflame and the related goods delivered by Duroflame.
Goods: all of the goods to be sold by Duroflame, including yet not limited to: pellet stoves, accessories and pellets.
Article 2. Applicability
2.1. These general terms and conditions apply to and are an inextricable part of every quotation, offer and agreement related to products to be supplied by Duroflame, regardless of their nature, unless explicitly agreed otherwise in writing.
2.2. These general terms and conditions also apply to all partial orders or back orders and/or subsequent or partial assignments arising from the agreement.
2.3. These general terms and conditions may only be deviated from if the parties have agreed this explicitly and in writing.
2.4. If Duroflame has already made these general terms and conditions available to the other party on several occasions, a lasting commercial relationship may be said to exist. In this case, Duroflame does not have to make the general terms and conditions available each time to ensure these are applicable to subsequent agreements.
2.5. If the quotation or offer is based on information provided by the other party and this information appears to be incorrect or incomplete, or changes after the fact, Duroflame has the right to modify the stated prices, rates and/or delivery terms.
2.6. The quotation, offer, prices and/or rates do not automatically apply to back orders or subsequent commissions.
2.7. If any provision from the terms and conditions or the agreement proves to be null and void in whole or in part and/or invalid and/or unenforceable, this will not have any consequence whatsoever for the validity of all the other provisions of these terms and conditions or the underlying agreement.
2.8. In the event these conditions and the agreement contain conflicting provisions, the provisions contained in the agreement will apply.
2.9. In the event of a discrepancy or conflict between the general terms and conditions and a translated version of this document, the Dutch text will prevail.
Article 3. Formation and amendment of agreement
3.1. All quotations and offers made by Duroflame, regardless of their form, are free from obligation unless the offer contains a deadline for acceptance. An agreement will not be considered formed until Duroflame has provided a written (order) confirmation or the agreement has been fulfilled by Duroflame. If the other party’s acceptance deviates on crucial points, the agreement will not be formed until Duroflame has agreed to these deviations in writing.
3.2. All the details in quotations, offers or agreements and any appendices forming part of these such as images, drawings, sizes, weights, output/efficiency and colours are only intended to serve as an indication. Slight deviations are therefore not at Duroflame’s expense or risk.
3.3. Obvious errors in writing or mistakes in quotations from Duroflame will discharge it from the obligation to perform and/or any obligations to pay compensation for damages arising from these errors, even if this is after the agreement has been formed.
Article 4. Fulfilment of the agreement
4.1. Unless otherwise agreed in writing, ‘ex-works or ex-warehouse’ orders will be delivered or shipped. If the other party refuses to take delivery at the agreed time, postpones or is negligent in respect of providing information or instructions that are necessary to delivery, Duroflame is entitled to store the products at the other party’s risk and expense.
4.2. Agreed completion/delivery terms may never be considered firm deadlines. If Duroflame fails to deliver the agreed products or services or to do so in time, the other party must supply Duroflame with written notice of default and allow Duroflame a reasonable period to deliver these products or services.
4.3. The risk for the goods to be delivered will pass to the other party at the time of delivery. Goods will be considered to have been delivered at such time as Duroflame notifies the other party that the goods are at Duroflame or a third party’s premises and are ready to be collected by the other party or to be shipped as ordered by the other party.
4.4. If Duroflame delivers the products to the other party, the risk for the goods will pass at the time that these goods have arrived at the other party’s premises and are actually made available to it.
4.5. If the parties explicitly agree that Duroflame will handle the transport of the products, both the costs and the risk of loss or damage during transport will be for the other party’s account.
Article 5. Compensation, prices and rates
5.1. All prices are in Euros and are exclusive of turnover tax and other government taxes and levies.
5.2. The amounts shown in Duroflame’s offers and quotations are based on the prices, exchange rates, wages, taxes and other factors relevant for price levels that apply at the time the offer is made. If one or more of the aforementioned factors changes after the order has been confirmed, Duroflame is entitled to modify the agreed price accordingly. If prices are increased pursuant to the current provision and the increase is more than 10% of the total agreed amount, the other party has the right to terminate the agreement in writing within eight days of the date it is or could have been aware of the price increase.
Article 6. Payment
6.1. Payment is due within 30 days of the invoice date. The other party is not entitled to offset any claim against Duroflame with amounts invoiced by Duroflame.
6.2. Duroflame has the right to demand full or partial advance payment or any other security for payment from the other party.
6.2. Duroflame always has the right to invoice for partial deliveries of goods delivered or to be delivered.
6.3. Payments must be made by deposit or transfer to a bank or giro account designated by Duroflame. Duroflame retains the right to demand security for the payment or advance payment both before as well as after the formation of the agreement, subject to the suspension of the fulfilment of the agreement by Duroflame until security is furnished and/or advance payment is received by Duroflame. If advance payment is refused, Duroflame is authorised to terminate the agreement and the other party will be liable for any damage Duroflame suffers as a result of this refusal.
6.4. Duroflame is entitled to suspend the delivery of products destined for the other party which it has in its possession in connection with the performance of the agreed work until all outstanding amounts the other party owes to Duroflame have been paid in full.
6.5. In the event payment is not executed in time, the other party will be in default by operation of law without notice of default being required. From this point on, the other party will owe Duroflame commercial interest as defined in (the current) Article 6:119a of the Dutch Civil Code [BW].
6.6. Without prejudice to Duroflame’s other rights pursuant to this article, the other party is bound to pay Duroflame the costs of collection that Duroflame has had to incur and which go beyond sending a demand or making a – rejected – settlement proposal, acquiring basic information or compiling the file in the usual manner.
Article 7. Warranty
7.1. If Duroflame grants a warranty to the other party in respect of products it has delivered or will deliver, it will notify the other party of this explicitly in writing. Failure to provide this explicit written notification will not entitle the other party to invoke its right to a warranty, without prejudice to its legal rights arising from mandatory legal provisions.
7.2. Any and all of Duroflame’s warranty obligations will lapse if errors, defects or imperfections in these goods are the result of the incorrect, careless or unprofessional use or management of the goods delivered by the other party or third parties contracted by the other party or in the event they are the result of an external cause such as fire or water damage, or if the other party or a third party introduces changes to the goods supplied by Duroflame without permission from Duroflame, or has these changes introduced.
Article 8. Claims
8.1. The other party is obliged to check the delivered goods immediately after receipt for any visible defects, damage and/or deviations. The other party must immediately report any claims involving a product supplied by Duroflame to Duroflame in writing and providing reasons. If 30 days have lapsed since the delivery of the products, the other party is no longer entitled to make a justified claim unless the defect could not have been detected during a careful and timely inspection at the time of delivery. In this case, the other party must notify Duroflame of the defect within 30 days of the date that the other party became aware or could have been aware of the defect, doing so in writing and providing reasons.
8.2. Duroflame is not obliged to accept return shipments from the other party without prior written consent. Taking receipt of return shipments does not under any circumstances imply that Duroflame acknowledges the grounds indicated by the other party for the return shipment. The risk related to returned products remains with the other party until Duroflame has credited these products.
8.3. If the other party invokes its rights to any agreed warranty schemes and this later appears to be unjustified, Duroflame has the right to invoice the other party for any activities and costs of investigation and repair which arise from this which it has incurred as a result of the other party’s invocation of these rights based on its standard rates unless the claim later appears to be justified.
Article 9. Retention of title
9.1. All the products delivered or to be delivered will remain the property of Duroflame, irrespective of the circumstances, until the other party pays any and all outstanding claims to Duroflame, including at any rate the purchase price, extrajudicial costs, interest, fines and other claims.
9.2. The other party is required to treat the products delivered under retention of title with the requisite care, and to ensure they are the identifiable property of Duroflame.
9.3. The other party must ensure that it has business and contents insurance coverage sufficient to insure the goods subject to retention of title at all times and give Duroflame access immediately upon request to inspect the insurance policy and corresponding proof of premium payments.
9.4. The other party is not authorised to pledge, encumber in any way or transfer the products delivered under retention of title to a third party, or to transfer all or part of them, as long as the ownership of the products has not been transferred to the other party, except to the extent this transfer takes place in the course of the other party’s normal business activities.
9.5. If the other party fails to fulfil its payment obligations to Duroflame or if Duroflame has good reason to fear that the other party will fail in the fulfilment of these obligations, Duroflame will be entitled to take back the goods delivered under retention of title. The other party will lend its cooperation and grant Duroflame free access at all times to its properties and/or buildings to inspect the goods and/or to enable Duroflame to exercise its rights. After the products have been received for return, the other party will be credited for the market value which may not, under any circumstances, exceed the original price that the other party had agreed with Duroflame, less the costs that Duroflame incurs for the return of these products.
Article 10. Termination and cancellation
10.1. The other party will be considered to be in default if it fails to satisfy any obligation in the agreement, or fails to do so in time, as well as in cases where the other party fails to comply with a written demand to fully satisfy an obligation within a pre-determined, reasonable period of time.
10.2. In the event of default on the part of the other party, Duroflame is entitled to terminate all or part of the agreement, without being obliged to pay any compensation for damages and without prejudice to the rights to which it is entitled, by sending the other party a specifically addressed, written notification and/or by demanding the immediate payment in full of any amounts owed to Duroflame and/or to rely on the retention of title.
10.3. Duroflame is authorised to cancel the agreement with immediate effect if the other party petitions for a suspension of payments or bankruptcy/WSNP (Debt Management (Natural Persons) Act) or if such petitions are filed against the other party or all or part of its assets are attached. In this case, all invoiced amounts then become immediately due and payable. Duroflame may never be bound to pay compensation for damages as a result of this termination.
Article 11. Force majeure
11.1. Duroflame is not liable for failures resulting from force majeure. Duroflame’s obligations will be suspended during the period in which force majeure is said to apply. If the period during which force majeure makes it impossible for Duroflame to fulfil its obligations lasts longer than three months, both parties will be authorised to terminate the agreement without recourse to the courts and without any obligation in that case to pay compensation for damages.
11.2. The term ‘force majeure’ as described in this article is, in any case, defined as unforeseen circumstances, including those of an economic nature, which have arisen through no fault or action on the part of Duroflame, such as a serious disruption at the company, amongst other things, forced reduction in production, strikes and lockouts, both at Duroflame as well as its suppliers’ companies, war, hostilities, be these in the Netherlands or any other country where Duroflame or its suppliers have branches, delays in transport or delayed or erroneous deliveries of goods or materials or spare parts by third parties including Duroflame’s suppliers.
11.3. If Duroflame has already fulfilled part of its obligations when the force majeure takes effect, or is only able to fulfil part of its obligations, it will be entitled to invoice the fulfilled part or the part that can still be fulfilled separately and the other party will be obliged to settle this invoice as if it related to a separate agreement.
Article 12. Liability
12.1. Duroflame is only liable for damage suffered by the other party if and to the extent this damage is the direct result of intent or wilful recklessness on the part of Duroflame.
12.2. Duroflame’s total liability will always be limited to compensation for direct damage, whereby the total amount Duroflame owes to the other party pursuant to any obligations to cancel and compensation for damages will never amount to more than the maximum amount of the price (exclusive of VAT) stipulated by that agreement.
12.3. Duroflame is not liable for damages if and to the extent the other party has or could reasonably have taken out insurance to cover this damage.
12.4. The other party must take all those measures that are necessary to prevent or limit this damage.
12.5. Duroflame is not liable for damage resulting from work carried out or deliveries made by or on behalf of the other party. In such a case, the other party bears full liability for the resulting damage and explicitly indemnifies Duroflame against all claims from third parties to pay compensation for this damage. This does not apply in cases in which the damage is attributable to intent and/or wilful recklessness on the part of Duroflame or if mandatory legal provisions dictate otherwise.
Article 13. Disputes and applicable law
13.1. Agreements concluded with Duroflame are governed exclusively by the laws of the Netherlands.
13.2. Any disputes will be submitted to the competent court in the location in which Duroflame has its registered office even though Duroflame will always retain the right to submit a dispute to the competent court in the location where the other party has its registered office.