Terms & Conditions Diamondline B.V.
Article 1 Applicability
- These general terms and conditions of sale and delivery (hereinafter referred to as “General Terms and Conditions”) apply to all legal acts of Diamondline B.V., hereafter referred to as “Seller” (feminine singular), concerning the sale and / or delivery of goods, goods and services.
- Diamondline B.V. concerns the private company with limited liability as registered and domiciled in (6101 XE) Echt, municipality Echt-Susteren, (Netherlands) at Ampèreweg no. 10A and registered in the trade register of the Chamber of Commerce Limburg under number 72524170.
- These General Terms and Conditions have been filed with the Chamber of Commerce under number: 72524170 (Diamondline B.V.) can be consulted and downloaded via the website www.aquaja.nl/diamond-line/.
- When in these terms and conditions a refer is made to “Other Party” (male singular), understood is any natural or legal person who wishes to enter into an agreement with the Seller and / or the person for whose account the aquariums, terrariums and shop fittings are delivered.
- The Other Party cannot derive any rights for the future from any agreed deviations from these General Terms and Conditions.
- If the Other Party makes use of standard purchase conditions, these shall not apply if they conflict with any provision contained in these General Terms and Conditions, unless the Seller has explicitly agreed to these terms and conditions in writing.
- These conditions apply to all countries and are / are also translated into different languages. The Dutch version is decisive.
Article 2 Offer and quotation
- All offers are without obligation, unless expressly agreed otherwise in writing.
- An agreement is concluded when the Other Party accepts an offer of the Seller verbally, by telephone, in writing or digitally.
- If the Other Party has not objected within eight days after the day the agreement was concluded, he agrees to the contents of this confirmation as well as the General Terms and Conditions of the Seller.
- Any transport costs are at the expense of the Other Party and, where possible, are stated in the offer.
- The Seller shall execute the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship.
- The Seller has the right to have certain work done by third parties. The applicability of Article 7: 404, 7: 407 paragraph 2 and 7: 409 Dutch Civil Code is expressly excluded.
Article 3 Delivery and purchase
- The seller commits himself to delivery and the other party commits to purchase
- Delivery and purchase take place ex-works or at business location according to the most recent version of the Incoterms 2010, unless otherwise agreed. The Seller and the Other Party agree that if the Other Party instructs the Seller to assist with the loading of any means of transport, the Seller will carry the burden, which the Seller will accept, to perform legal acts in the name and on behalf of the Other Party, which legal acts will see the conclusion of agreements with third parties in connection with the loading of the relevant goods.
- If no ex-works are delivered and no specific method of shipment has been agreed, the Seller shall determine the method of dispatch and delivery shall be deemed to have taken place:
(a) in the case of dispatch through a professional goods provider: by transfer of the goods to the carrier;
- b) in the case of shipment by Aquaja of a means of transport: by delivery or offer to this effect at the home or to the warehouse of the Other Party or to the delivery address specified in advance by the Other Party.
- The Seller and the Other Party agree that if the Other Party instructs the Seller to arrange the transport of goods, the Seller obtains the burden, which burden the Seller accepts, to perform legal acts in the name and on behalf of the Other Party, which legal acts see the conclusion of agreements with third parties in connection with the transport of the goods in question.
- The risk of the purchased goods transfers to the Other Party from the moment of delivery.
- If a period has been agreed or stated for the execution of certain work or for the delivery of certain goods, this is never a fatal deadline. In the event that a period is exceeded, the Other Party must therefore declare this to the Seller in default in writing. The Seller must be offered a reasonable period in which to still execute the agreement.
- If a certain term of dispatch of the goods sold has been agreed, Aquaja is not obliged to pay any compensation for any resulting damage if this agreed term is exceeded.
- The Seller has the right to deliver the agreement in parts at any time.
- The other party is obliged to purchase the purchased goods within the agreed time. In the absence thereof Seller is entitled to claim payment of the sale price of the part not taken. If a period as referred to in this provision has not been agreed, the Seller is entitled to dissolve the agreement and to claim damages / payment if the purchased goods have not been taken within four months after the sales confirmation.
- If the Other Party owes an advance payment or has to make the information (s), instructions and / or materials required for the execution available, the delivery period shall not commence until the payment has been received in full or the information (s), respectively. instructions and / or materials have been made available.
Article 4 Risk of damaged goods
The risk with regard to damage to the goods and any consequential damage resulting therefrom shall pass to the Other Party after delivery of the goods, as referred to in article 3 paragraph 2 of these General Terms and Conditions.
Article 5 – Security
- The Seller is at all times entitled to demand security from the Other Party for the fulfillment of the obligations of the Other Party before proceeding to delivery (or continue with an already started delivery).
- The security can only be requested in the form of a mortgage security right and / or a right of pledge and / or a bank guarantee.
- If the Other Party refuses to provide the requested security, the Seller shall be entitled, after written notice of default, to regard the agreement as dissolved without being obliged to pay any compensation, without prejudice to the Seller’s right to claim full compensation for the damage suffered.
Article 6 – Force majeure
- In case of force majeure, the Seller has the right to change the delivery term or to cancel the agreement, insofar as not yet executed, without being obliged to pay compensation.
- Force majeure means in these General Terms and Conditions every circumstance independent of the will of the Seller – even if it was already foreseen at the time of the conclusion of the agreement – that prevents the fulfillment of the agreement permanently or temporarily, as well as, for insofar as not already understood, war, danger of war, civil war, revolt, strike or exclusion at the Seller, in an affiliated company or at logistical service providers, transport problems, fire, storm, flooding and / or damage ensuing therefrom, failure in the delivery of the Seller raw materials, semi-finished products, materials and other serious defects at the Seller or its supplier.
- If, in the opinion of the Seller, the execution of the work as a result of weather or temporary site conditions cannot be carried out at the time and / or the period as originally foreseen in the agreement, the Seller shall be entitled to the work relating thereto have to interrupt as long as those circumstances continue.
- With regard to agreements, concluded in spite of the existence or foreseeability of circumstances as referred to in art. 6 paragraph 1 or 2, the Seller is entitled to invoke force majeure if there is an alteration or sharpening, or of such a circumstance as described above in article 6 paragraph 2.
Article 7 – Prices
- All prices are exclusive of the sales tax applicable at the time of conclusion of the agreement. If the Other Party receives VAT and / or excise duty at its request, then the Other Party is responsible for having the necessary permits and indemnifies the Seller completely against (subsequent) levy of VAT and / or excise duties and / or other duties levied by the government imposed.
- Insofar as the price agreed between the Seller and the Other Party has taken into account the costs of transport and the like coming at the expense of the Seller, these shall be based on the rates known to the Seller at the conclusion of the agreement and on normal circumstances. Increase of these costs and new costs, duties or taxes, however named, as well as costs caused by a change in the normal circumstances, are at the expense of the Other Party.
- If price discounts have been stipulated by the Other Party in connection with the delivery of significant quantities during a certain period, these discounts will only apply if the agreed quantities have indeed been wholly purchased by the Other Party during the agreed period.
- If at the time of execution of the agreement or part thereof the wages, the prices of the raw materials and / or other cost price factors have increased, the Seller is entitled to increase the agreed price. Seller is also entitled to this when devaluation of the payment method occurs.
Article 8 – Payment
- Payment must always be made within or on the agreed dates at the conclusion of the orders and / or completion or otherwise no later than 14 days after the invoice date, in a manner to be indicated by the Seller in the currency in which the invoice is made, unless otherwise agreed in writing, as indicated by the Seller. The seller is entitled to invoice periodically. The payment must be made in euros, unless any another payment method is agreed.
- If the amount due is not paid to the Seller within the period stated in article 8 paragraph 1, the Other Party shall be deemed to be in default by operation of law and the Seller shall be entitled to charge interest to the Client without notice of default from the due date of the invoice, the percentage of 3 points above the statutory interest rate applicable in the Netherlands. The Seller also has the right to charge all administrative costs of 5% on the collection of the claim and all judicial and extrajudicial costs to the Other Party.
- Failure to pay on the due date also results in the expiry of the guarantee as referred to in article 10; by operation of law, all amounts owed by the Other Party under other invoices or on other grounds to the Seller shall immediately become due and payable, including claims against group companies.
- The place of payment of the Seller’s location in Echt shall apply as the place of payment.
- The Seller has a right of retention in respect of all that the Other Party owes to him on all that the Seller has of the Other Party. This applies to both outstanding receivables and future receivables. This also applies to compensation in respect of dissolution or termination of the agreement (s) concluded between the parties, without it being of importance to which party the dissolution has invoked. This also applies to all claims whether or not related to the agreement concluded between the parties.
- The Seller is entitled to use the payments made by the Other Party to first of all reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest. The Seller can, without being in default, refuse an offer of payment if the Other Party designates a different order for the allocation of the payment. The Seller can refuse full payment of the principal sum if the vacant and current interest and collection costs are not also paid.
- If payment by the Other Party is not paid or is not paid in time, all reasonable costs in accordance with the Standardization Extrajudicial Collection Costs Act will be at the expense of the Other Party.
- In the event of overdue payment, all that the Seller has in its possession shall serve as collateral for what the Seller of the Other Party, for whatever reason, has to claim, including that which can be claimed from group companies.
Article 9 – Intellectual property
- Without prejudice to the other provisions of these General Terms and Conditions, the Seller retains the rights and authorities that the Seller is entitled to under the Copyright Act and other intellectual laws and regulations.
- The Other Party is not permitted to make changes to items, unless the nature of the delivery follows otherwise or has been agreed otherwise in writing.
- Any designs, sketches, drawings, films, software and other materials or (electronic) files created by the Seller in the context of the agreement shall remain the property of the Seller, irrespective of whether these have been made available to the Other Party or to third parties unless otherwise agreed.
- The seller reserves the copyright for the designs, illustrations, drawings and sketches provided with the offer. These, irrespective of whether drawing fees and transfer of copyright have been separately invoiced, remain its property and may not be copied, transferred to third parties or used in any other way without its express written permission.
- If the assignment for the execution of the work is not given to the Seller, the offer will be returned to the Seller complete with designs, images and drawings within 14 days of the date of this decision of the Other Party.
- The seller reserves the right to use the knowledge gained due to the execution of the work for other purposes, provided and to the extent that no strictly confidential information is brought to the notice of third parties.
Article 10 – Complaints
- The other party has the obligation to examine at delivery whether the products meet the agreement. All complaints due to externally observable or immediately detectable defects can be submitted by fax, e-mail or telephone immediately after discovery or in any case within 24 hours after receipt of the delivered goods. A telephone report must be confirmed by the Other Party in writing within two days after receipt of the goods. The Other Party / recipient of the goods must also make a note of the complaint on the relevant transport documents, to confirm that the complaint existed at the time of delivery of the goods.
- The Seller shall at all times have the right to further examine the goods that the Other Party is complaining about. The other party must transfer these goods, or an analysis sample thereof, to the Seller at the first request. Complaints do not give the Other Party the right to suspend payment in whole or in part, while Other Party cannot claim compensation.
- The burden of proof on the other party is that the complaint is well-founded. Recognized claims give, contrary to the provisions of the Civil Code, the other party only the right to free revival of the property, which free revival applies at the same time to complete settlement of any claim for compensation of the Other Party on Seller for any reason whatsoever.
Article 11 – Liability
- Liability is expressly limited to the fulfillment of the obligations described in these General Terms and Conditions; any claim for damages, except for those relating to non-compliance with the aforementioned obligations, is excluded. Seller is not liable for costs, damages and interest, which may arise as a direct or indirect result of:
– infringement of patents, licenses or other rights as a result of the use of data provided by or on behalf of the Other Party;
– acts and omissions of the Seller, subordinates of the Seller or other persons employed by or on behalf of the Seller, except for intent or gross negligence of the circle of employees, more particularly the management, of the Other Party;
– damage or loss, by whatever cause, of the raw materials, semi-finished products, models, tools and / or other items made available by the Other Party.
- If and insofar as there is any liability on the Seller’s part, for whatever reason, this liability is at all times limited to the invoice value of the service giving rise to the damage, on the understanding that the Seller will never pay a higher amount. Liability is then the amount for which he is fully insured.
- If an event occurs which results in damage for the Other Party or is likely to result for the Seller to be held liable, the Other Party must notify the Seller of this event in writing with due diligence, but in any event within five days of that event. ask. If the Other Party leaves a timely written notice, his right to compensation in connection with the relevant event will lapse. All claims for compensation of the Other Party’s damage expire ninety days after the event causing the damage, except insofar as it concerns damage that was timely communicated to the Seller as indicated above.
- In all cases in which the Seller is entitled to the provisions in this article, any assigned employee (s) can also appeal to this, even if the stipulated in this article has been stipulated by the employee (s) concerned.
- The other party is obliged to indemnify the Seller against damage that the Seller may suffer as a result of claims from third parties related to the goods or services supplied by the Seller.
- The other party is obliged to indemnify and compensate the Seller in respect of all third-party claims for compensation of damage in any way related to the execution of the agreement between the Seller and the Other Party.
- The Seller is not liable for damage resulting from shortcomings resulting from circumstances that are not attributable to the Seller, including the provisions of Article 5 of these General Terms and Conditions.
Article 12 – Suspension and dissolution of the agreement
- In the event of impediment to performance of the agreement as a result of force majeure, the Seller shall be entitled to suspend performance of the agreement for no more than six months without judicial intervention, or to dissolve the agreement in whole or in part, without the Seller being any compensation is required. The Seller is authorized during the suspension and at the end of this the Seller is obliged to opt for execution or for full or partial dissolution of the agreement.
- In the event of suspension or dissolution by virtue of Article 12, paragraph 1, the Seller is entitled to demand immediate payment of the raw materials, materials, parts and other items reserved for the performance of the agreement by the Other Party, such as those processed and / or manufactured, for the value that must reasonably be attributed to it. In the event of dissolution pursuant to article 12, paragraph 1, the Other Party shall be held to assume the items included therein after payment of the amount owed pursuant to the previous sentence, failing which article 12 paragraph 4 shall apply mutatis mutandis.
- If the Other Party does not, not properly or not in time comply with any obligation arising from the agreement concluded with the Seller or from a related agreement, or if good grounds exist for the fear that the Other Party is not or will not to comply with his contractual obligations towards the Seller, as well as in the event of bankruptcy, suspension of payments, the cancellation of the Other Party’s company, insufficient (to the satisfaction of the Seller to be determined) credit limits or exceeding thereof, liquidation or partial transfer – whether or not as security – of the Other Party’s business, including the transfer of (part of) his claims or (a part of) his shares, the Seller is entitled, without notice of default and without judicial intervention, either to execute each of these agreements for to suspend six months, or to dispose of them in full or in part, without the Seller being obliged to pay any compensation and without prejudice to the rights further attributable to the Seller. The Seller is authorized during the suspension and at the end of this the Seller is obliged to opt for execution or for full or partial dissolution of the suspended agreement (s).
- In the event of suspension pursuant to article 12 paragraph 3, the agreed price shall become immediately due and payable, after deduction of the installments already paid and of the costs saved by the Seller as a result of the suspension, and the Seller is authorized to carry out the costs resulting from the execution of the agreement. Seller to secure the reserved, processed and manufactured raw materials, materials, parts and other items for the account and risk of the Other Party. In the event of termination pursuant to article 12 paragraph 3, the agreed price – if no prior suspension has taken place – shall become immediately due and payable, after deduction of the installments already paid and of the costs saved by the Seller as a result of the dissolution and the Other Party is obliged to do so, defined amount and take the items included therein.
- The other party is not entitled to claim dissolution of the agreement with retroactive effect.
Article 13 – Drawings, calculations, descriptions, models, tools and the like.
- Information contained in catalogs, illustrations, drawings, dimensional and weight specifications, etc., shall only be binding if and insofar as these are expressly included in a contract signed by the parties or an order confirmation signed by the Seller.
- The offer made by the Seller, as well as the drawings, calculations, software, descriptions, models, tools and such made or provided by the Seller shall remain the property of the Seller, irrespective of whether costs have been charged for this. The information, which is included in the aforementioned or forms the basis of the manufacturing and construction methods, products and the like, remains exclusively reserved to the Seller, even if costs have been charged for this. The other party guarantees that the said information, except for the execution of the agreement, will not be copied, shown to third parties, disclosed or used with the written consent of the seller.
Article 14 – Inspection and acceptance test
- The other party shall inspect the delivered goods / the goods / items within no more than fourteen days after delivery as referred to in Article 3 paragraph 2 or – if assembly / installation has been agreed – within no more than fourteen days after the assembly / installation. If this period has expired without written and specified notification of well-founded complaints, the delivered goods / the case / items are deemed to have been accepted.
- If an acceptance test has been agreed, the Other Party will, after the receipt or, if assembly / installation has been agreed, give the Seller the opportunity to carry out the necessary tests after the assembly / installation, as well as those improvements and changes deemed necessary to be made by the Seller. The acceptance test will be held in the presence of the Other Party immediately after the request of the Seller. If the acceptance test has been carried out without a specified and well-founded complaint, and if the Other Party does not fulfill its aforementioned obligations, it is deemed to have been accepted.
- The Seller can only test if the Other Party has complied with the preparatory instructions made available to the Other Party. If these have not been complied with, the additional costs of the Seller will be borne by the Other Party
- Without prejudice to the Seller’s obligation to fulfill its warranty obligations, the acceptance in accordance with the foregoing paragraphs shall exclude any claim by the Other Party in respect of a shortcoming in the Seller’s performance.
Article 15 – Packaging
- Packaging is included in the price unless otherwise agreed.
- Packaging that has not been discounted in the price will be provided on loan and will therefore remain the property of the Seller.
- The Seller shall, within reasonable limits, make every effort to carry out the packaging on the basis of the provided information and / or instructions.
- The Seller is not liable for damage that could have been prevented if the Other Party had provided more or better information and / or instructions to the Seller.
- Without prejudice to the provisions of the previous paragraph, the Seller is only liable for damage – if the Other Party demonstrates that this damage is the direct result of a serious attributable shortcoming of the Seller – to the machine (s) or object (s) itself.
Article 16 – Competent court
- All disputes (including those which are only regarded as such by one of the parties), which may arise as a result of the agreement or subsequent further agreements, will exclusively be submitted to the District Court of Limburg, location Roermond.
Article 17 – Applicable law
- Only Dutch law applies to the agreement and the agreements arising from it. The provisions of the Vienna Convention of 11 April 1980, Tractatenblad 1981.84 and 1986.61 are excluded.