Terms and Conditions 1. Definitions
1.1 GTCs : These General Terms and Conditions.
1.2 Agreement: All agreements covering purchases, sales and/or contracting of work, or other types of agreement which we conclude with customers, and all consequent and/or related agreements and/or commitments.
1.3 Offer: Every offer which we make to a (potential) customer.
1.4 Distance sales: Every contract concluded between the costumer and us, where under an organised distance sales, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded, such as a website, telephone or other means of distance communication.
1.5 We: Rubberstock which apply these Terms and Conditions as such an which act in the capacity of sellers, suppliers and/or contractors in agreements, or, in the case of offers, as the party making the offer.
1.6 Customers: All parties which conclude and agreement with us, within in meaning of Clause 1.2 , or which receive an offer from us, within the meaning of Clause 1.3.
1.7 Days: all calendar days.
1.8 Complaints: All the customer’s grievances concerning the quality or quantity of goods and services supplied.
1.9 Our depot: our commercial properties and/or grounds and/or locations at which we segregate goods for delivery and prepare them for dispatch.
2.1 All agreements concluded by us, quotations and contracts between us and the costumer are subject to these GTCs. All offers which we make are also subject to these GTCs.
2.2 Regardless of the date of notification, agreements concluded with us and offers made by us shall not be governed by any other GTCs, such as those of the customer, without our explicit consent, issued to the customer in writing, to the application of such other GTCs. In no circumstances shall such consent denote that other agreements between us and the customer are subject to the customer’s GTCs.
2.3 The stipulations of these GTCs shall not apply if and in as far as such is prohibited by statutory requirements. If a stipulation is nullified on these grounds in certain circumstances, the regulation which is most favourable to us shall apply and all other stipulations shall remain fully in force.
2.4 In all other cases, departures from these GTCs are permissible only with written consent signed by both parties.
2.5 These GTCs are also applicable to contracts with us for the implementation of which third parties must be involved.
2.6 If one or more provisions of these GTCs are void or voidable, the other provisions of these GTCs remain in effect. In this event, we and the constumer will consult with each other to agree new provisions to replace the void or voided ones.
2.7 If we do not always require the strict compliance of these GTCs, this will not mean that the provisions of the GTCs will not apply, or that we to any degree would lose the right in other cases to demand the strict compliance of these GTCs.
3. Offers / conclusion
3.1 Our offers are made without obligation, unless a period of acceptance is stated in the offer. Any final term stipulated in an offer shall be binding on the customer only. We have the right to withdraw our offers within 2 days of receiving confirmation of acceptance.
3.2 If the acceptance departs from the offer made by us, whether or not on points of minor importance, then we are not bound by this. The Contract then does not come into being in accordance with this differing acceptance, unless we indicate otherwise.
3.3 Agreements shall also be deemed to have been concluded when we deliver goods in accordance with the accompanying forwarding documents / invoices.
3.4 We cannot be held to our offer if the costumer, in accordance with the requirements of reasonableness and fairness and generally accepted standards, should have understood that the offer or an element thereof contains a manifest fault or clerical error.
4.1 Unless a fixed price is agreed, prices are as stated in our pricelist effective on the delivery date.
4.2 Our prices are stated exclusive of value added tax, other taxes and duties and of transport and insurance costs.
4.3 We have the right, within reason, to charge costs increases to the customer. Customers shall be notified of such increases in writing.
5.1 Delivery takes place by giving the costumer control over the goods.
5.2 The costumer is obliged to accept the purchased goods at the moment they are available to him or when they be handed over to him.
5.3 If the costumer refuses to accept the goods at the place of delivery or the costumer is negligent in providing data or instructions, which are necessary for the delivery, the goods which were intended for the delivery will be stored at the risk and expense of the costumer, after we inform the costumer of this.
5.4 Following delivery, the customer shall bear the full risks for the delivered goods.
5.5 We have the right to select the means of transportation.
5.6 We have the right to make part-deliveries.
5.7 Unless we have explicitly agreed to a specific delivery date in writing, stated delivery dates can in no case be regarded as a strict deadline. In the event of late delivery, the customer is required to serve us with notice of default in writing, allowing us a reasonable period within which to fulfil our delivery commitments, during which neither the customer nor any third party has the right to claim any compensation for damages from us. This Clause shall not apply in the event of temporary or enduring shortcomings, within the meaning of Article 6, for which we cannot be held responsible.
5.8 A notice of default is not necessary if the delivery has become permanently impossible, or it otherwise becomes apparent that we will not meet our obligations arising from the contract. If we do not deliver within this period, then the costumer is entitled to terminate the Contract without judicial intervention and/or seeking compensation.
5.9 We are entitled to arrange for certain work to be carried out by third parties.
5.10 The customer will issue all information or instructions that are necessary for the delivery, or which the customer can be reasonably expected to understand are necessary for implementation of the Contract, to us in a timely manner.
5.11 If the above-mentioned information and instructions are not issued, or not issued in a timely manner, then we are entitled to suspend the implementation of the Contract. The additional expenses that are incurred through the delay will be borne by the customer.
6. Force majeure
6.1 Breaches may not be attributed to us or the costumer is they are not their fault, or if they are not accountable by law, juristic act, or according to the generally accepted standards. In this case the parties are also not bound to fulfil the obligations arising from the Contract.
6.2 In these GTCs, the term “force majeure” is defined as – in addition to what is understood in law and jurisprudence in this regard – all external causes, foreseen or unforeseen, upon which we can exercise no influence and through which we are not able to fulfil our obligations.
6.3 Circumstances regarded as resulting in force majeure include shortcomings due to war, strikes, blockades, lock-outs, traffic disruptions, disruptions in supplies of raw materials / semi-manufactures, illness of employees and the failure of sub-suppliers / contractors to fulfil their commitments, or to do so on time.
6.4 In case of force majeure the parties are not obliged to proceed with the Contract, and are not bound to pay any compensation.
6.5 During the period that the force majeure continues, both we and the costumer can fully or partly suspend the obligations arising from the Contract. If this period lasts for longer than 2 months, both parties are entitled to terminate the Contract with immediate effect, by means of a written notification, without judicial intervention and without the parties being able to claim any damages.
6.6 If the situation of force majeure is of a temporary nature, we reserve the right to suspend the agreed service for the duration of the situation of force majeure. In the event of permanent force majeure both parties are entitled to terminate the Contract without judicial intervention.
6.7 If at the time of the occurrence of force majeure we have already partly fulfilled, or will fulfil, our obligations arising from the Contract, and independent value accrues to the part fulfilled or to be fulfilled, then we are entitled to separately invoice the part already fulfilled or to be fulfilled. The costumer is bound to pay this invoice as if there were a separate Contract.
7.1 We have the right at all times to require that the customer provide security for the fulfilment of the commitments. If a customer neglects or refuses to provide security within the period we determine, we have the right to suspend or terminate the agreement by means of written notification. If we have already delivered goods to the customer, the latter is required to return these to us within five days of the notification date. The customer is also required to compensate us for all damages which we suffer as a result of its neglect or refusal.
7.2 Termination and suspension will take place by means of a written declaration, without judicial intervention.
7.3 If the Contract is terminated, the costumers debts to us become immediately due and payable.
7.4 We reserve the right to claim compensation.
8. Payment and collection costs
8.1 Payments shall be made through:
8.2 Payments shall be made in the invoiced currency to our offices or to one of our bank accounts.
8.3 Payments shall first be applied to the settlement of costs, then to the settlement of interest and thereafter to the settlement of outstanding invoices, in chronological order, even if the customer states that its payment relates to other invoices and/or debts.
8.4 The costumer is not authorised to deduct any amount from the payable amount by reason of a counterclaim made by the costumer.
8.5 Objections to the level of the invoice do not have the effect of suspending the payment obligations.
8.6 A customer which fails to pay on time shall be in default, without notification thereof being required, and shall be liable to pay us interest at the rate of 2% of the invoice amount for each month or part of a month following the payment date, as defined in Clause 8.1, for which payment is overdue, unless the statutory interest rate is higher.
8.7 If the costumer is in default or in breach of the Contract in fulfilling its obligations (in a timely manner) then all reasonable costs incurred to obtain an out-of-court settlement are payable by the costumer. The costumer is in any event liable to pay the collection costs.
8.8 With regard to the extrajudicial (collection) charges, we are entitled to a payment of the maximum sum that is determine in the Payment of Extrajudicial Collection Charges Decree
8.9 We are only entitled to a reimbursement of extrajudicial collection charges after we send the costumer a reminder to pay within 15 days the outstanding invoice or invoices after the costumer came into default.
8.10 Any reasonable legal costs and execution costs incurred are also payable by the costumer.
9. Reservation of ownership / non-possessory lien
9.1 All goods which we deliver to a customer shall remain our property until the customer has settled all our receivables under the purchasing / contracting agreements covering such goods and the work performed therefore, plus interest and costs, and any of our other receivables relating to such customer’s failure to fulfil the agreement.
9.2 If a customer applies goods which we deliver, and which are subject to an ownership reservation, for the production of new goods, it shall follow our instructions in the processing thereof and shall reserve the goods on our behalf. The customer shall become the owner of the goods only at such time as our ownership reservation lapses through settlement of all our receivables.
9.3 If we have supplied a customer with goods which are subject to an ownership reservation, that customer shall grant us, and we shall accept, non-possessory lien on such goods as security for the fulfilment of the customer’s commitments in respect of our outstanding receivables from the customer, other than those referred to in Clause 9.1. At our earliest request, the customer shall sign a deed conferring the lien. In the case, the customer guarantees the competence to pledge the goods and that the goods are not encumbered by any lien and/or restricted rights, other than our own rights.
9.4 For as long as the ownership of the supplied items has not been transferred to the costumer, the costumer may not sell on, pledge or in any other way encumber that which falls under the retention of title, except within the normal conduct of its business.
9.5 If the customer resells the goods, we have the right to require that the customer grant us non-possessory lien to its receivables from the buyer in respect of the sale.
9.6 The customer shall treat the goods referred to in this Article with due care. The customer shall insure the goods against all disasters, on the basis of the invoice value. The customer shall provide us with the names and addresses of the insurers and with copies of the policies, at our earliest request. The customer shall also grant us non-possessory lien to its receivables from the insurer in this respect, at our earliest request, in as far as this is not afforded by law.
9.7 Subject to the stipulations of Clause 9.4, a customer may not pledge the goods referred to in this Article to third parties, or dispose of, transfer or limit, in any way which is to our disadvantage, its legal or actual right of disposal of the goods in question in any other way.
10. Quality and complaints
10.1 For a period of no more than 6 months following the date of delivery, we guarantee the sound quality of the goods we deliver and the materials used therefore, provided the goods are used with care, in the normal way, in accordance with our instructions and for the purpose for which they are intended. The guarantee is not valid if we deliver goods of lower quality by explicit agreement.
10.2 Immediately on deliver, the customer shall count, measure, weigh and inspect the goods for visible defects, and for invisible ones which are easily detected, prior to storage or use. Once used goods are deemed to satisfy the terms of the agreement unless they prove to have invisible defect which cannot easily be detected.
10.3 Complaints concerning quantities, dimensions, weights, visible defects and easily detectable invisible defects must be submitted to us immediately if the nature of the goods allows and, in all other cases, in writing within 14 days of the delivery of the goods.
The final sentence of Clause 10.2 shall apply accordingly.
10.4 If, within six months of the date of delivery, goods which we supply prove to have invisible defects which are not easy to detect, complaints must be submitted in writing within 14 days of the discovery of such defect.
10.5 Customers must accept the usual 10% tolerances in our branch of industry regarding quantities, dimensions and weights.
10.6 In respect of our customers, we are required to repair, replace or refund the invoice value of goods which do not satisfy the standards described in Clause 10.1, providing that the customer conducts the checks and follows the complaints procedures described in Clauses 10.2, 10.3 and 10.4, thoroughly and in good time.
10.7 Goods may be returned to us only with our written consent, both to their return and to the method of dispatch. The customer continues to bear the risk of the goods.
10.8 Complaints shall in no event entitle the customer to suspend the payment commitments.
10.9 The right to (partial) restitution of the price, repair or replacement of the Product or compensation lapses, if the defects will not be reported within the prescribed period, unless the nature of the Product states otherwise or from circumstances of the case a broader period arises.
11. Limitation of liability / Product liability risk
11.1 We are only liable for direct damage that has arisen through wilful recklessness or an intentional act or omission by us
11.2 Our liability is excluded for indirect damage, including in any event consequential damage, loss of profit, lost savings and loss due to business interruption, or immaterial damage to the costumer. In the case of consumer purchase, this limitation does not extend further than is permitted pursuant to article 7:24, paragraph 2 of the Dutch Civil Code.
11.3 We are not liable for damage, of whatever nature, resulting from us basing our actions upon inaccurate and/or incomplete information provided by the customer, unless this inaccuracy or incompleteness ought to have been known to us.
11.4 We are not liable for mutilation, destruction, theft or loss of data or documents.
11.5 If we are liable for any damage, then our liability is limited to an amount equal to the amount stated in the invoice, or to the amount to which the insurance taken out by us gives entitlement, with the deduction of the policy excess borne by us under the terms of the insurance.
11.6 The costumer must report the damage for which we can be held liable to us as soon as possible, but in any event within 10 days of the damage having arisen, on penalty of the forfeiture of any right to compensation for this damage.
11.7 Any liability claim against us lapses within one year of the costumer having become aware, or possibly reasonably having become aware, of the harmful event.
11.8 The limitations of the liabilities in this article will not apply if the damage is due to an intentional act or recklessness by us or due to our managing employee.
11.9 If a customer resells goods supplied by us, or if it processes or incorporates such goods in new products which it subsequently sells, that customer is required to arrange adequate insurance cover against the product liability risk assigned under Section 6 : 185 of the Netherlands Civil Code. The customer undertakes to send us a copy of the relevant policy at our earliest request.
11.10 The customer indemnifies us against all third party claims for which we cannot be held liable under the foregoing.
11.11 If we may be sued for this reason, then the costumer is bound to provide us with both judicial and extrajudicial support. Furthermore, all costs and damage on our part and third parties will be at the expense and risk of the costumer.
12.1 In all cases in which we cancel an agreement with a customer by written notification, the customer is required to compensate us for all damages, costs and loss pf profit, and to return delivered goods to us. The customer continues to bear the risk of the goods until we have received and approved them. The commitment to pay compensation for damages and loss of profit shall not apply if we cancel an agreement under the stipulations of Article 6, in relation to shortcomings due to enduring circumstances for which we cannot be held responsible.
13. Right of withdrawal in the case of distance sales
13.1 This provision will only apply to the customer in the capacity of Consumer.
13.2 In the event of distance sales delivery has to take place within thirty days.
13.3 You are entitled to withdraw from this Contract within fourteen (14) days without giving any reason for doing so. The deadline for withdrawal shall be fourteen (14) days from the date on which you or a third party you have appointed, who is not the carrier, takes possession of the final goods delivered.
13.4 This right of withdrawal does not apply in the following cases:
• Delivery of goods which are not prefabricated and have been manufactured on the basis of a personal choice or according to customer specifications, or of goods which have clearly been tailored to the customer’s personal requirements.
• Delivery of sealed goods which are not suitable to be returned for reasons relating to health protection or hygiene if their seal has been removed after delivery.
13.5 In order to exercise your statutory right of withdrawal, you must notify us (Rubberstock, Geograaf 38, 6921 EW Duiven, The Netherlands, Tel: +44 20 3086 9500, E-mail: email@example.com) of your decision to withdraw from this Contract in a clear declaration (e.g. by sending a letter by mail or email).
13.6 If you withdraw from this Contract, we must reimburse you for any payments we have received from you, including delivery costs (excluding the additional costs incurred if you have selected a different type of delivery to the cheapest standard delivery option offered by us) without delay, but no later than fourteen (14) days after the day on which we receive the notice of your withdrawal from this Contract. We will use the same payment method you used for the original transaction in order to reimburse you unless otherwise expressly agreed; under no circumstances will you be charged a fee for this refund. We may withhold the reimbursement until we have received the returned goods or until you have provided proof that you have returned the goods, whichever is earlier.
13.7 You must return or hand over the goods to us without delay and no later than fourteen (14) days from the date on which you notify us of your withdrawal from this Contract. The deadline is deemed to be met if you send the goods before the expiry of the fourteen-day deadline. We shall bear the costs of returning the goods.
13.8 You will only be liable for any diminished value of the goods if this loss in value is attributable to any use or handling of the goods which is not deemed necessary in order to verify the condition, features and functioning of the goods.
14. Infringement of third-party rights
14.1 Our customer shall guarantee that goods which we produce in accordance with instructions or drawings supplied by the customer, or with the aid of the customer’s moulds or forms, shall not Infringe on the intellectual property rights of third parties. A single instance of such infringement shall, in itself, afford us the right to rescind an agreement by written notification. The customer indemnifies us against all claims from third party rightful claimants in relation to such infringements.
15. Special goods
15.1 Unless explicitly agreed otherwise, we have the right to produce for third parties any special goods which we produce for a specific customer.
15.2 Samples of special goods must be inspected by the customer within 14 days of their dispatch by us. In the absence of notification of rejection within 14 days, the samples shall be deemed to have been approved.
15.3 Unless explicitly agreed otherwise, all models, moulds, samples, forms, drawings and all other equipment and instructions relating to the production of special goods are, and shall remain our property.
15.4 Moulds shall be replaced, repaired and maintained at the customer’s expenses.
15.5 Drawings, know-how and designs which we make available to a customer may not be copied, disclosed or revealed to third parties without out written consent. They must be returned to us immediately after use. For each infringement of this Clause, the customer shall be liable to pay a fine of € 50.000,00, payable immediately on demand, plus a further € 5.000,00 for each day that such infringement continues.
15.6 We have the right to destroy moulds, regardless of whether these are owned by ourselves or by the customer, if they have not been used for five years. We shall notify the customer in writing, 3 months prior to the end of the 5-years period, of our intention to scrap a mould.
16. Privacy and cookies
16.1 We will store the details and information that the costumer provides to us carefully and confidentially.
16.2 We may only use the personal details of the costumer within the framework of the implementation of its obligation to supply, or of dealing with a complaint.
16.3 When visiting our website we can collect the information on the use of the website of the costumer through cookies.
16.4 The information that we collect through cookies can be used for functional an analytical purposes.
16.5 We are not permitted to lend out, hire out or sell the personal details of the costumer, or to publicise them in any other manner.
16.6 If we are obliged to provide confidential information to third parties by virtue of a legal provision or court decision, and we cannot claim a legal right of immunity, or such a right recognised or permitted by the competent court in this respect, then we are not liable to pay compensation or grant indemnification. The costumer is also not entitled to terminate the Contract by reason of any damage arising in this way.
16.7 The costumer agrees that we may approach him or her for statistical or customer satisfaction research. If the costumer does not wish to be approached for research, the costumer may make this known.
16.8 We reserve the right to utilise the other details of the customer in anonymous form for (statistical) research and databases.
17. Applicable law, disputes
17.1 Dutch law is exclusively applicable to all legal relationships to which we are a party, not including the 1980 Vienna Convention on the International Sale of Goods. This also applies if an obligation is wholly or partly fulfilled outside of the Netherlands or if the costumer has its place of business outside of the Netherlands.
17.2 Disputes between us and the costumer will only be submitted to the competent court in the Netherlands, unless the law mandatorily prescribes otherwise.
18. Place of execution
18.1 The execution of agreements is deemed to take place at the location at which we are established or at the address given by the costumer.
19.1 In the absence of comprehensive evidence to the contrary, our administrative records are decisive as regards the legitimate extent of the commitments of the parties to agreements concluded with us.
19.2 In the absence of comprehensive evidence to the contrary, the quantities, measures and weights stated in invoices, waybills and/or packer’s numbers for transactions between us and our customers shall be deemed to be accurate.
20.1 We have the right to amend these GTCs. Amended stipulations shall take effect as of the date stated in the amendment resolution. Customers known to us at the time of an amendment shall be notified of such amendment In writing.