HERAS - Mobile Fencing
Conditions
(hereafter referred to as: "GTC") of Heras Productiemaatschappij bv, a company under Dutch law, registered with the Trade Register on 20-11-1992 under number 17056567, with its head office in Oirschot, the Netherlands and trading under trade names including HERAS MOBILE FENCING & SECURITY
Article 1. DESCRIPTION
Buyer: anyone who in the course of their profession buys products sold by Heras as part of its commercial activities. Working days: all the days of the calendar year, except national holidays and weekends
Order: all documents produced by one of the parties constituting an offer to purchase when signed by the Buyer. Products: all merchandise sold by Heras as part of its commercial activities.
Article 2. APPLICATION
2.1. These GTC shall apply to every sale of Products.
2.2. The Buyer's general conditions shall only apply to the sale of Products, to the extent that Heras has accepted them in writing.
2.3. These GTC shall be issued automatically to every Buyer. Therefore the placing of an order shall signify the Buyer's full and unconditional agreement to the GTC. Any amendments or variations of the GTC agreed between the parties must be accepted by Heras in writing.
2.4. Any failure on the part of Heras to make use of any of the general terms and conditions at any time shall not preclude it from invoking these terms and conditions at a later time.
2.5. Heras may amend these GTC at any time. However, the amended terms and conditions shall only apply to Orders placed after the Buyer has received the new terms and conditions.
Article 3. CONCLUSION OF SALES
3.1.Our offers shall be free of obligation.
3.2. Orders shall only be final when confirmed by us in writing ("Order Confirmation"). Heras shall only be bound by Orders accepted by its agents or employees, if such Orders have been confirmed.
3.3.Order Confirmation may also take place by dispatching the products.
Article 4. AMENDMENT / CANCELLATION OF THE ORDER
4.1.An amendment or cancellation of the Order by the Buyer can only be taken into consideration if requested in writing prior to the Order Confirmation.
4.2.If the cancellation of the order is received by Heras more than 5 days prior to the dispatch of goods, Heras may take this into consideration. Should Heras consent to the cancellation, the purchaser must nevertheless pay the following cancellation charges :
- Standard items : 20% of value of goods.
- Variants or specials : 50 - 100% of value of goods.
4.3. If the cancellation only reaches Heras after the goods ordered have been sent, the total price of the products supplied will always be claimed.
Article 5. PRICING
5.1. The prices quoted on offers from Heras are for information and may be changed at any time.
5.2. Unless otherwise agreed in writing, prices are Nett, inclusive of (standard) packaging. They are therefore exclusive of all costs of insurance, any taxes, levies, duties or other payments due under regulations in the Netherlands or in the country of export or transit shall be charged to the Buyer.
5.3. The Products shall be supplied at the price applying at the time of the Order Confirmation.
5.4. If the applicable price does not correspond with the price quoted on the Order, the price on the Order Confirmation shall be submitted to the Buyer for approval.
5.5. Prices in pricelist subject to adjustment. The supplier has the right to change these if this is deemed unavoidable.
Article 6. PAYMENT
6.1.Invoicing. An invoice shall be prepared for every delivery.
6.2. Payment method. Unless otherwise agreed in the Order Confirmation, the price of the Products shall be paid in cash and in full on the day when the Products are delivered, by means of a cheque or by transfer to our bank account or our Dutch (post)bank account. Payment shall be made in the currency specified on the invoice.
6.3. Late payment / non – payment. In the event of late payment Heras can suspend all current Orders, in addition to any other action. Any amount not paid on the due date shall lead to an interest charge for late payment at one and a half times the Dutch statutory interest rate. This interest charge for late payment shall be payable when requested by Heras. In the event of non-payment on the due date the Seller may treat the contract under the Order as automatically terminated without a notice of default. It is explicitly agreed that where any amount due has not been paid on the due date, the total price shall be immediately payable and the Seller shall have the right to claim back the products immediately, without prejudice to any other rights to damages. The Seller shall retain title to merchandise until payment has been made in full. The risks shall be borne by the Buyer. Heras shall also automatically have the right to claim termination of the sale contract if a payment reminder has had no effect after forty-eight hours. Finally, the Buyer shall repay all costs incurred in collecting debts where amounts due remain unpaid, including fees paid to ministerial officers.
6.4. Payment guarantees. Heras reserves the right at any time to demand payment in advance or of certain deposits, in connection with risks taken. The advances can be held to cover any losses on resale.
Article 7. RETENTION OF TITLE AND TRANSFER OF RISKS
7.1.Retention of title. Title to the products delivered shall only pass to the Buyer when it has paid the full price, irrespective of the date of delivery of the products concerned, plus all amounts owed to Heras for this. Until the full price has been paid to Heras, it shall not be possible, irrespective of the reasons, (1) to resell the products or to pledge them or encumber them with any rights whatsoever nor (2) to modify, transform or change them.In addition the Buyer shall be obliged (1) to identify them as separate products and not to mix them with other merchandise of the same kind and (2) to inform Heras of any garnishment or intervention by third parties concerning these products. If the Buyer fails to comply with the obligations in this Article, Heras may, having sent the Buyer a written notice of default, at its option (1) demand immediate payment of the amount outstanding or (2) demand return of the products.
7.2 Transfer of risks. The risks of loss or damage shall be transferred at the moment when the goods are delivered to and accepted by the Buyer.
Article 8. DELIVERY
8.1. The goods shall be delivered in accordance with the conditions agreed between the parties.
8.2. Place. The goods shall be delivered at a place to be specified by the Buyer. Nevertheless, this is in the region in which the customer is located.
8.3. Time of delivery. Deliveries shall be made on the basis of availability and in the order of receipt of the Orders. Heras reserves the right to make full or partial deliveries. The time of delivery shall be laid down as accurately as possible, but depends on Heras' supply and transport possibilities. Heras shall not accept any liability, nor can a current order be cancelled in the event of a delay in delivery. However, Heras shall be obliged to inform the Buyer of the delay as soon as it is aware of it itself. Furthermore, if the product has not been delivered within two (2) months of the agreed delivery date, and this delay is not a result of "force majeure", both parties shall have the right to request termination of the sale contract. If the Buyer has made any down payments, it shall be entitled to demand repayment of these with no entitlement to any other compensation or damages. In any event, delivery shall only take place within the agreed delivery time if the Buyer has fulfilled its obligations towards Heras.
Article 9. ACCEPTANCE
9.1. Acceptance. Unless the Buyer expresses specific reservations at the time of delivery, the goods supplied by Heras shall be deemed to correspond with the Order Confirmation, both as to quality and quantity.
9.2. Reservations / returned goods. In the event of visible defects or if the product delivered does not correspond with the specifications of the product ordered on the waybill, the Buyer may inform Heras in writing of its reservations within a maximum of three (3) days commencing at the moment when the products are delivered. Minor deviations from the characteristics and/or the quantities listed in the Order Confirmation shall not entitle the Buyer to refuse the products delivered.The Buyer must provide proof that the defects or deviations found are demonstrable and significant. The dimensions and weight of pre-packaged products at the time of departure shall be proof of the quantities delivered. Where pre-packaged products are returned, their dimensions and weight at the time of departure shall always be proof of the amounts delivered. Every product returned must be covered by a formal agreement between Heras and the Buyer. The costs and risks of returning products shall be borne in full by the Buyer. After Heras has confirmed that there is a visible defect or that the products delivered are non-compliant, the Buyer shall receive free replacement products or a refund for the products, at Heras' discretion, with no entitlement to any compensation or damages.
Article 10. SECURITY / LIABILITY
10.1.Scope – Limitation. Heras shall indemnify the Buyer against (1) any latent defects of the products delivered, as a result of which they are unfit for use, and (2) any loss caused to any persons due to a delivered product being faulty, within the limits of the relevant applicable statutory provisions. If the goods delivered have any latent defects and the Buyer sends Heras written notice of this within the statutory period, the Buyer shall be entitled to replacement of products or free repairs, at Heras' discretion, with no entitlement to any compensation or damages. Heras shall not be held liable for any loss caused by such defects. However in the event of a judgement ordering Heras to pay damages, for whatever reason, the quantum of damages and the interest shall not exceed the purchase amount of the product which caused the damage, exclusive of taxes.
10.2. Exclusion.
10.2. 1.Without prejudice to the provisions of Articles 9.2 and 10,1, Heras gives no guarantee whatsoever on the products delivered and in particular gives no guarantee (1) in relation to the full fitness of the products for a special purpose or a special application, nor (2) for defects and damage caused by normal wear and tear or by external events (in particular faulty assembly, poor maintenance, abnormal use other than in accordance with the instructions, or injudicious use) or by any modification of the product, not envisaged or specified by Heras.
10.2. 2.Without prejudice to the provisions of Article 10.1 and statutory provisions, Heras cannot be held liable for any direct or indirect loss, including loss of profits, resulting from the use of the product by the Buyer.
Article 11. BUYER'S OBLIGATIONS
11.1. The Buyer shall pass on all documentation, instructions, recommendations for use, etc. concerning the products delivered to any new Buyer of these products.
11.2. The Buyer undertakes, insofar as compatible with the performance of the GTC and the sale envisaged in the GTC, to treat the contents of documents supplied by Heras and marked "confidential" as strictly confidential.
11.3. The Buyer undertakes not to use the product or the documentation for any dishonest purposes. It specifically undertakes not to copy or imitate the product and/or the documentation.
Article 12. FORCE MAJEURE
Every incident of force majeure shall suspend the obligations of the party invoking force majeure for as long as it lasts. If the circumstances constituting force majeure last for more than two (2) months, either party shall automatically be entitled to demand termination of the sale contract by registered letter with confirmation of receipt. Force majeure shall include in particular war, strike action, the occupation of buildings, the interruption of work, accidents, explosions, the destruction of machines, material or buildings, or natural disasters suffered by the party incapacitated, by one of their suppliers or subcontractors. The incapacitated party shall be obliged to inform the other party of the circumstances constituting force majeure as soon as possible. The incapacitated party shall be released from any liability for delayed performance or non-performance of its contractual obligations.
However, force majeure shall in no case release either party from the obligation to pay amounts due on the relevant dates.
Article 13 APPLICABLE LAW
These GTC and all sales referred to therein shall be governed by and interpreted in accordance with Dutch law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these GTC or the sales referred to therein.
Article 14. COMPETENT COURT
In the event of disputes the parties shall try to reach an amicable settlement before initiating legal proceedings. If no results are obtained in this way, any disputes concerning or resulting from the drawing up, interpretation or performance of the GTC or the sale referred to in the GTC, shall be adjudicated exclusively by the District Court (Arrondissementsrechtbank) in 's-Hertogenbosch, the Netherlands. This Article shall also apply in the event of interlocutory proceedings, an ancillary claim or multiple defendants.
Article 15. NOTICES
Any letter intended to have legal effect and sent by registered post with confirmation of receipt shall become effective on the date of posting, even if the letter is not received or is refused by the addressee.
Distributor's stamp and signature
Signed as read and agreed.