GENERAL CONDITIONS OF SALE, TERMS OF DELIVERY AND PAYMENT CONDITIONS
In these General Terms and Conditions (‘Terms of Delivery’) the following definitions apply:
Nyink: Nyink b.v. and/or its group of companies or any company that is associated with Nyink in a group now or in the future.
Products: items as well as services.
Customer: the entity that wishes to purchase Products from Nyink and operates in terms of a profession or company.
Service: activities such as maintenance, advice and inspection (this is not an exhaustive list).
Agreement: every agreement or contract between Nyink and the Customer with regard to the delivery of Products as well as every supplement or amendment thereof.
- These terms and conditions shall apply to all proposals of Nyink and to all (other) legal relationships between the Customer and Nyink unless expressly agreed otherwise in writing. Any provisions that derogate from these Terms of Delivery must always be expressly agreed in writing.
- The applicability of any (purchase) conditions used by the Customer are expressly rejected.
- Proposals and agreement
- Proposals that are issued by Nyink shall only be binding for the period specified in the proposal or, if no period is specified, during a reasonable period.
- Data specified in catalogues, figures, drawings, standardisation sheets, etc. is only indicative and non-binding except when expressly included in an Agreement signed by the parties or a purchase order signed by Nyink without impairment to the responsibility of the Customer with regard to the data that the Customer has issued. Slight differences in sizes or subordinate changes in construction or parts required for the benefit of an appropriate implementation are reserved.
- An Agreement shall become effective after Nyink signs the Agreement or the written purchase order.
- The proposal issued by Nyink as well as designs, drawings, scripts and presentations that Nyink issues shall continue to be its property and must be returned immediately to Nyink if an order is not placed with Nyink. They may not be partially or fully used and/or copied or reproduced in any other way or made available to third parties for inspection without the express consent of Nyink.
- The Customer must guarantee that data related to the manufacture and/or construction methods used by Nyink shall not be shown or made known to or used by third parties. If this does take place, Nyink shall impose a penalty on the Customer of €10,000 per breach.
- Every proposal is based on execution under normal conditions and during the normal working hours that apply at Nyink unless expressly stated otherwise. Nyink shall be free to charge a surcharge on the delivery and/or installation costs in relation to the delivery or installation outside normal working hours unless expressly agreed otherwise:
30% on normal working days after 5 p.m. and before 8 p.m.;
b. 40% on normal working days between 8 p.m. and 7 a.m.;
c. 60% on Saturdays;
d. 100% on Sundays and public holidays.
- Nyink reserves the right to pass on any costs related to (any) proposal and/or Agreement incurred by Nyink to the Customer.
- All prices and price specifications used by Nyink exclude VAT and other levies that are charged by the government. Prices specified by Nyink in its proposals or purchase orders to the Customer are ex factory/warehouse unless agreed otherwise.
- If required by the Customer, Nyink shall facilitate the transport to the destination on the site and/or in the building of the Customer after the Customer has given the order for this and Nyink has accepted the order provided that the related items can be conveyed to the internal destination in a sufficiently large lift and also without any impediment.
- If the delivery is postponed at the request of the Customer until after the delivery date or if the Customer should request the delivery of the Products before the delivery date, Nyink shall be entitled to be compensated for the costs that arise for Nyink due to the deferment and this acceleration, respectively, as well as being compensated for the statutory interest over the price of the Products involved in the deferment. The deferment of the delivery does not suspend the payment obligation of the Customer. Nyink reserves the right to claim for losses that arise from the delay.
- If the supply at or near the delivery location requires additional labour hours because paving or a paved road is missing or due to other conditions or because Nyink needs to incur additional costs for this, these additional hours and costs shall be at the expense of the Customer and Nyink shall be entitled to pass on these hours and costs separately to the Customer.
- Waiting hours and delays that have not been caused because of Nyink’s own actions, shall be passed on at the applicable rates.
- Changes to procurement prices, labour costs, cost prices of raw materials and/or materials, social and government charges and/or other costs insofar as these relate to the agreed service can be passed on to the Customer by Nyink at all times.
- Delivery and execution
- The specification of delivery terms in proposals, order confirmations and/or Agreements shall be done to the best of our knowledge and shall be observed as much as possible by Nyink, but are not binding and shall never be deemed a deadline. Nyink shall not be regarded as being in default by simply exceeding them and neither shall this lead to any liability on part of Nyink. If these terms are exceeded, Nyink shall consult the Customer in a timely manner.
- Delivery shall take place ex factory/warehouse unless agreed otherwise. Nyink shall have met its delivery obligation by offering the Products once ex factory/warehouse or at the agreed location and at the agreed time to the Customer. Deliveries shall also include: agreed partial deliveries.
- Nyink reserves the right to deliver the Products in the Agreement in parts and to invoice these partial deliveries separately.
- The delivery time shall start on the last of the following times:
The day or week as specified on the purchase order;
b. The day of receipt by Nyink of the documents, data, permits, etc. required for the execution of the order;
c. The day of fulfilment of the formalities required before the activities start;
d. The day of receipt by Nyink of that which must be paid in accordance with the Agreement before the activities start with regard to advance payments.
- The Customer must accept the Products that the Customer has purchased at the location described in Article 5, paragraph 2, and at the agreed time. If the Customer should not do so, Nyink shall be entitled to claim payment of the agreed purchase price of the non-accepted Products without notice of default being required and these Products shall be deemed to have been purchased by the Customer of Nyink after which they shall be stored at the expense and risk of the Customer and for the payment of all costs that arise from this. The details without impairment to the rights that are further vested on Nyink.
- The Agreement can only be cancelled after consultation with and after written agreement of Nyink under the terms and conditions that Nyink sets.
- Nyink is entitled to have (parts of) the Agreement be executed by third parties (when this takes place in France, in agreement with the French Subcontracting Act (loi n°75-1334 du 31 décembre 1975 relative à la sous-traitance)). If the execution of (a part) of the Agreement is carried out by (a) third party (third parties) in consultation with the Customer, Nyink shall be entitled to pass on any additional costs invoiced by this third party (these third parties) in arrears to the Customer in addition to the costs specified in the proposal. Prior approval shall be requested with regard to a Customer established in France for the invoicing of additional costs. Nyink cannot be held liable for the activities that are performed by a third party insofar as this third party has entered into an agreement with the Customer himself/herself or the Customer has given instructions to the third party.
- If an order is issued by the Customer for installation and Nyink has accepted this order in writing, it is assumed that these installation activities can take place under normal working conditions and during Nyink’s normal working hours. If the activities (in full or in part) must take pace outside normal working hours, Nyink can charge the surcharge as specified in Article 3, paragraph 6.
- When required, the installation activities shall be based on drawings sent to the Customer in advance or based on the layout drawings made available by the Customer and approved by Nyink. The sizes specified on these drawings must be checked by the Customer in the work. Printouts of the relevant drawings must be signed by the Customer to show approval and returned to Nyink. The building structure suitability assessment where the Products shall be installed is a responsibility of the Customer.
- Without impairment to the provisions referred to in paragraph 1, the Customer must take responsibility for the following at the Customer’s expense and risk:
That the required activities that are not part of Nyink’s order such as the work of (electricians), chiselling and breaking work, concreting, plastering, paintwork and/or other similar activities have been performed correctly and in a timely manner before the planned delivery time.
b. That light and power are available at a reasonable distance, that the materials to be supplied by third parties or the Customer are present in the area of the relevant work location and that the rooms in which work shall be performed are clean, dry and sufficiently heated.
c. That the supplied Products can be conveyed to the installation location in a sufficiently large lift. Other activities by third parties and the Customer must not impede an undisrupted progress of the conveyance through the building and/or the consecutive installation.
d. That the supplied, but not yet installed Products, as well as the tools can be stored in rooms that are lockable that are suitable for the storage of these Products and tools. If the Customer is negligent in complying with the obligations described above, Nyink shall be entitled to suspend the performance of the activities and to charge the Customer for the additional costs that are incurred by Nyink.
- In the case of loss of time as a result of installation material or tools being missing or a cause for which Nyink is not responsible such as an extension of the delivery time shall be reasonably allowed while taking all circumstances into consideration. With regard to additional labour hours and costs in relation to this extension, Article 4, paragraph 4, shall apply accordingly.
- The Customer is liable for damage to Products or tools of Nyink, its employees and the third parties it has called in as well as for any loss thereof except for intent or gross negligence on the side of Nyink.
- If it has been agreed that the seller must perform the installation activities, this shall only be performed up to a maximum height of 300 cm unless explicitly agreed otherwise. If the height for the installation activities is higher than 300 cm, the purchasing party must himself or herself carry out the installation activities and the agreed amount for these activities shall be charged by the selling party.
- Test set-ups
- If a Customer requires a test set-up, this can be installed based on the conditions below.
- Test set-up within this context means installing Products in a visible position in a room to be made available by the Customer to visualise the workplace or structure for which there is an interest at the Customer’s.
- Nyink is entitled to charge the Customer a percentage of the catalogue value of the involved Products.
- If the Customer wishes to keep the Products, they shall be charged by Nyink any way where the already received payment as a result of paragraph 3 shall be deducted from the amount due and payable for the Products.
- The Customer shall be liable for the use, damage, theft and/or loss of the Products with regard to a test set-up up to the amount of the catalogue value of the involved Products.
- Invoicing & payment
- Unless agreed otherwise in writing, invoicing shall take place as follows:
For Agreements up to an amount of € 15,000 (in words: fifteen thousand euros) excluding VAT: once the delivery of the Products in accordance with Article 5, paragraph 2, has taken place;
b. For Agreements from an amount of € 15,000 (in words: fifteen thousand euros) excluding VAT: 1. 50% upon issuing the purchase order; 2. 50% once the delivery of the Products has been made in accordance with Article 5, paragraph 2;
c. In all cases, the amount shall be invoiced when the Customer is in default with regard to the purchase of a (partial) delivery.
- Unless agreed otherwise in writing, payment must be made in the way that Nyink has specified within 14 days after invoice date without any setoffs based on whatever reason.
- If the term specified above is exceeded, the Customer shall be in default by operation of law without any notice being required. In this case, the Customer shall owe default interest of 1% per month from the day of default where a part of a month shall be deemed a full month. The amount based on which the interest is calculated is increased with the interest due and payable for the year each time a year ends. It applies to Customers established in France that the default interest as stated above equals the interest rate that the European Central Bank (ECB) uses in its most recent financial transaction plus ten (10) percentage points. The reference dates are: 1 January for the first half of a calendar year and 1 July for the second half of a calendar year.
- If the Customer does not meet the Customer’s payment obligations on time, the Customer shall also owe the extrajudicial collection costs. These costs are at least 15% of the capital that is still due and payable where a minimum of € 200 (in words: two hundred euros) shall apply. In derogation to the minimum amount specified above, it applies to Customers established in France that these Customers shall owe a fixed payment for collection costs of € 40 (in words: forty euros) as established in the French Commercial Code (Code du commerce français; or a future similar determination). Nyink needs to only prove the incurred costs that are higher than the amounts/percentages referred to in the previous sentences.
- Payments made by the Customer shall always first repay all interest and costs due and payable and, subsequently, the due and payable invoices that have outstanding amounts the longest even if the Customer specifies that this payment is related to a later invoice.
- If and insofar as shortcomings are linked to a delivered Product in accordance with the Customer, the Customer shall not be entitled to refuse making the payment or defer his/her payment obligation with regard to Products from the same shipment or delivery regarding which no complaints have been made.
- The Customer must provide security at the first request of Nyink in the format that Nyink requires and to supplement this, if required, for all obligations of the Customer. As long as the Customer does not meet this proviso, Nyink shall be entitled to suspend its obligations.
- Reservation of ownership
- Products delivered to the Customer shall continue to be the property of Nyink as long as the Customer has not paid in full to Nyink everything that the Customer owes Nyink by virtue of the Agreement including interest, costs and claims by virtue of shortcomings in complying with the Agreement.
- Products shall be at the risk of the Customer as from the moment of delivery and/or offering in accordance with Article 5, paragraph 2. In the case of a deferred delivery in accordance with Article 4, paragraph 3, the risk shall be transferred to the Customer when the Products should be delivered in accordance with the original agreement.
- As long as the property of the delivered items has not been transferred to the Customer, the Customer only has the authority to process or deliver in turn the delivered Products in the normal exercise of the Customer’s business. Except for the provision above, the Customer may not pledge or grant a third party any other right with regard to these Products.
- With regard to delivered Products that have been transferred to the Customer with regard to their ownership and are still in the hands of the Customer, Nyink reserves rights of pledge at any time as referred to in Section 3:237 of the Dutch Civil Code as more security for all claims that Nyink may still have by virtue of anything. Nyink shall be entitled at all times and is being irrevocably authorised by the Customer to carry out the actions required to vest this right of pledge (which shall expressly include vesting the right of pledge through an officially certified or registered private deed) and to also act on behalf of the Customer within this context. The Customer shall give his/her cooperation immediately to this pledging at the request of Nyink.
- The Customer must insure the items for the duration of the reserved ownership with regard to fire, explosion and water damage as well as theft and to submit to Nyink the policies of these insurances for examination purposes on demand. All claims of the Customer on the insurers of the items by virtue of the specified insurances shall be pledged to Nyink by the Customer when Nyink informs the Customer that it requires this in the manner as specified in Section 3:239 of the Dutch Civil Code as more security for the claims of Nyink with regard to the Customer. The last two sentences of paragraph 4 of this Article apply.
- If the Customer does not comply with the Customer’s payment obligations towards Nyink or if Nyink has good grounds to suspect that the Customer shall fail with regard to the obligations, Nyink shall be entitled to take back the Products that have been delivered under the reservation of ownership on Nyink’s own authority and without any liability towards the Customer. After taking them back, the Customer shall be credited for the market value, which can never be higher than the original purchase price reduced by the costs related to the recovery of the items.
- Complaints and guarantee
- Complaints regarding visible shortcomings must be reported by the Customer immediately upon discover and no later than within 14 days after delivery through a written specified notification. Complaints regarding non-visible shortcomings must be reported by the Customer immediately upon discovery and no later than within 14 days after the guarantee period as referred to in paragraphs 5 and 6 has elapsed through a written specified notification.
- The Customer must allow Nyink to investigate the relevant issues within 14 days of receipt by Nyink of the guarantee being invoked.
- When the above periods have elapsed, any claim against Nyink shall no longer apply with regard to the relevant shortcomings. Legal actions with regard to this issue must be brought within 1 year after the timely complaint at the risk of forfeiting all rights.
- Without impairment to the limitations stated below, Nyink guarantees both the soundness of the Product that it delivers and the quality of the material used and/or delivered for this when used under normal conditions during a period of 12 months after the delivery as it has taken place based on Article 5, paragraph 2, with the exception of all Products and/or components that Nyink has obtained from third parties for which Nyink grants the same guarantee as Nyink receives from its supplier where a maximum of 12 months shall apply.
- Paragraphs 1 and 3 apply accordingly with regard to shortcomings that are only or mainly due to an inferior installation by Nyink. If Nyink installs the Product, the periods referred to in paragraph 1 shall start on the day that Nyink has completed the installation under the understanding that, in that case, the guarantee period shall, in any case, end 12 months after delivery in accordance with Article 5, paragraph 2.
- In any case, shortcomings that occur or are caused in full or in part by the following fall outside the scope of the guarantee:
The Customer not observing operating and/or maintenance instructions or using the Products in a different way than the foreseen normal use;
b. Normal wear and tear;
c. Installation or repair by third parties and/or the Customer;
d. The application of any government instruction regarding the nature or quality of the used materials;
e. Materials and/or items used in consultation with or at the express instruction of the Customer or supplied by or on behalf of the Customer or materials and/or items issued for processing;
f. Working methods and constructions applied at the express instruction of the Customer.
- If the Customer does not, does not properly or does not meet on time any obligation that arises for the Customer from an Agreement or a related agreement entered into by the Customer with Nyink, Nyink cannot be held liable with regard to any guarantee in relation to any of these Agreements. If the Customer decides to disassemble, repair or perform other activities or have the above performed with regard to the Product without prior written approval from Nyink, any claims by virtue of the guarantee shall be null and void.
- If Nyink replaces components/Products to meet its guarantee obligations, the replaced components/Products shall become its property.
- If Nyink has material and/or construction errors repaired or has had the relevant Products repaired under the guarantee, it shall be fully discharged from its guarantee obligations and it shall not be liable to any further compensation unless the damage arises from the intentional or gross negligence of Nyink, its employees or third parties that it calls in or the liability arises from Title 3, Part 3, Book 6, of the Dutch Civil Code. Neither can the Customer demand that the Agreement be terminated based on the proven material and/or construction errors unless it cannot be expected in all reasonableness with regard to the Customer that the Customer keeps the Agreement in place.
- Nyink cannot be held liable unless Nyink can be blamed for gross negligence.
- Except for gross negligence on the part of Nyink, the applicability of the legal provisions regarding product liability as established for the implementation of the relevant EU Directive as well as with the exception of the provisions referred to in paragraph 1, all Nyink liability such as (but not limited to) trading losses, other indirect losses (including consequential losses) and losses as a result of liability towards third parties are excluded. This exclusion shall not be appealed upon if such an appeal should lead to an unacceptable result according to criteria of reasonableness and fairness as the case may arise.
- Without detracting in any way from the provisions referred to elsewhere in these General Terms and Conditions, Nyink cannot be held liable for any shortcoming in the delivery of the Products that is the result of the incorrectness and/or incompleteness of the data that the Customer has specified.
- Nyink cannot be held liable either with regard to the following: – The infringement of patents, licences or other rights of third parties as a result of using data issued y or due to the Customer; – Damage or loss due to whatever reason of the raw materials, semi-manufactured products, models, tools and other items that the Customer has made available.
- If Nyink should have been given an order without the installation of the Products, but it does offer assistance during the installation in whatever shape or form, this shall be at the risk of the Customer.
- The Customer must indemnify Nyink with regard to all claims from third parties for compensation in relation to damage or losses regarding which the liability of Nyink is excluded in these terms and conditions in relation to the relationship with the Customer.
- Nyink cannot be held liable for the usefulness of the Products for the Customer or for any losses caused by the use of the Products, if the Products are used by the Customer is some other way or for another application than specified in the product specifications.
- Nyink cannot be held liable for the issued or still to be issued recommendations unless they have expressly been the object or shall be the object of a written (recommendation) agreement if an insofar this agreement makes provisions with regard to Nyink’s liability.
- Nyink’s liability caused by shortcomings in the compliance with its obligations shall always be limited to the amount that is specified on the invoice and that Nyink has charged to the Customer with regard to the delivery of the Products as well as the amount that is paid out by an insurer under the relevant insurance.
- For Customers established in the United Kingdom, the following shall apply in addition to paragraph 9 of this Article: Notwithstanding any other provision in these Terms of Delivery, no liability shall be excluded in relationship to situations that are related to the execution of the Agreement insofar as they may have occurred by or with regard to: (i) death or physical injury that is the result of negligence; (ii) the property rights that Nyink can make apply with regard to the Products (title of the goods) in the sense of Article 12 of the British Sale of Goods Act (insofar as this Act applies in the countries of the United Kingdom); (iii) for fraud or a fraudulent representation of issues; (iv) liability that cannot be excluded based on mandatory law.
- Intellectual property and know-how
- All intellectual property rights and know-how in relation to the Products shall continue to be vested on Nyink unless agreed otherwise in writing between Nyink and the Customer. The above shall also apply if Nyink realises Products especially for the Customer and the Customer has paid for this.
- The copyright on recommendations, drawings, scripts, figures, models, sketches, layout representations, presentations, product specifications and descriptions issued by Nyink shall always be retained by Nyink.
- If Nyink and the Customer agree in writing that the intellectual property rights are vested on the Customer, the Customer shall grant Nyink an unlimited worldwide licence to produce and use the relevant Products under its own name unless agreed otherwise in writing. If this is agreed in writing, Nyink shall owe a payment for the aforementioned use.
- If and insofar the intellectual property rights with regard to the Products are vested on Nyink, the Customer shall refrain from any breach of these intellectual property rights including but not limited to the registration of any intellectual property right, claiming any intellectual property right as their own property and producing and/or using the Products without prior consent from Nyink.
- If and for as long the intellectual property rights are vested in Nyink, Nyink shall take all reasonable precautions to prevent that the delivered Products are contrary to any right that applies in the Netherlands with regard to the intellectual property of third parties. Without impairment to the limits established in Article 12, if, nevertheless, Nyink can be blamed for the breach of such a right, Nyink shall, at its own discretion, accept back that which has been delivered for a credit of the acquisition costs, ensure that the Customer can continue to use without disruption that which has been delivered or an equivalent other product or indemnify the Customer for the costs of legal assistance in relation to a defence against such a breach.
- The provisions made in the above paragraph only apply if the Customer has informed Nyink in writing about a claim from a third party specified in that paragraph within 2 months after the claim is made, allows Nyink to enforce independently the intellectual property rights with regard to its interests in relation to the entity and the Customer gives his/her full cooperation with regard to the defence against such a breach.
- The measures in case of a breach of an intellectual property right of a third party specified in the above paragraphs are the only measures that Nyink must take regarding this issue and the Customer does not have any other rights and/or claims towards Nyink in relation to this.
- The Customer shall refrain from using trademarks used by Nyink or similar image, voice, design or word indications and/or combinations regardless of whether filing regarding this exists or not unless use is allowed in writing by Nyink.
- Models, tools, dies and templates
Unless agreed otherwise, models, tools, dies and templates that are produced especially for the Customer shall remain the property of Nyink even when charges have been made regarding this. If during 2 years Nyink has not received or accepted any orders with regard to a specific item, Nyink shall be entitled to destroy the related models, tools, dies and templates without informing the Customer concerned.
- Non-attributable breach (force majeure)
- In case of force majeure, Nyink shall be entitled to suspend compliance with its obligations towards the Customer or to terminate in full or in part the Agreement without judicial intervention and without having to pay compensation to the Customer or third parties at Nyink’s discretion.
- The following shall be deemed force majeure: any circumstance on which Nyink has no influence or could not have been foreseen by Nyink in all reasonableness that impede compliance with the Agreement’s obligations temporarily or permanently. These circumstances shall, for example, include: war, risk of war, riots or other disruptions to public order, fires, natural disasters, strikes, (limiting) government measures, not obtaining the required permits and licences, business interruptions as well as third parties continuing to be in default in full or in part from whom Products are received.
- Suspension and termination
- If the Customer does not comply or does not comply appropriately or in a timely manner with any obligation arising from an Agreement entered into with or if it is subject to serious doubt whether the Customer shall comply with his/her contractual obligations towards Nyink, Nyink shall be entitled to suspend the execution of every Agreement entered with the Customer or to terminate it in full or in part without notice or judicial intervention without this entailing that Nyink shall have to pay any compensation and without impairment to any other rights that it is entitled to.
- If one of the parties should apply for a moratorium or be declared bankrupt, the other party shall have the right to terminate the Agreement entered into through a written notification or to suspend compliance with this Party’s obligations at this Party’s discretion. In this case, all amounts due and payable to the party that is entitled to terminate shall then be immediately due and payable. The rights with regard to non-compliance of commitments shall, however, remain in full force in relation to the relevant party.
The Customer indemnifies Nyink with regard to claims from third parties including employees of the Customer who suffer losses in relationship with the execution of the Agreement that is the result of the actions or omissions of the Customer or of unsafe situations in this party’s organisation and shall also indemnify Nyink for all costs, losses and interests that may occur at the expense of Nyink as a result of claims of the aforementioned third parties towards Nyink for the Products delivered by Nyink for the Customer and the provided Services and recommendations, the details of which whilst observing the legal provisions.
Except for proof of the contrary, the administrative information of Nyink is the deciding factor with regard to the (execution of the) Agreement.
All disputes with regard to matters to which these Terms of Delivery apply shall be submitted to the competent court of the District Court of Gelderland in Zutphen, the Netherlands, except for the competence of parties to bring interlocutory proceedings to the competent court in another district.
- Applicable law
All matters on which these Terms of Delivery apply shall be solely governed by Dutch law. If one or more provisions of these terms and conditions is or are declared null and void, the parties shall be bound by rules in words to that effect that are not exposed to being declared null and void. The application of the Vienna Sales Convention is expressly excluded.
- Priority of the Dutch version
The Dutch version of these Terms of Delivery is binding and prevails over any translation.
The Parties shall maintain confidentiality during the precontractual phase including the quotation stage, during the Agreement and after termination of the Agreement with regard to all information that can be deemed of a confidential nature that they become aware of in relation to the proposal and Agreement.
Den Sliem 89
January 2017 version