Terms of delivery
General Terms of Delivery and Payment Comm-Co BV. Registered at the Chamber of Commerce in Terneuzen, file 2101667.
Article 1. Applicability
Our conditions apply to all our quotations and/or contacts between, on the one hand, Comm-Co BV, hereinafter to be referred to as "Comm-Co" and, on the other hand, a buyer, hirer and/or customer, hereinafter to be referred to as "the other party", regarding which Comm-Co has expressly or tacitly declared that they apply insofar as the parties have not expressly deviated from these conditions.
Article 2. Quotations
Quotations are completely without obligation unless otherwise determined in writing. Comm-Co shall have the right to withdraw the offer within two working days after having received acceptance confirmation should a quotation that explicitly states that the offer is without obligation be accepted.
Article 3. Delivery
3.1 Unless otherwise agreed, delivery shall be ex works.
3.2 The other party is obliged to purchase the bought items when they are delivered to said party and/or when they are made available to said party in accordance with the contract. If the other party refuses the purchase or is negligent in issuing information or instructions that are required for the delivery, the items shall be stored at the risk of the other party. The other party shall, in such a case, be liable for all additional costs including, as a minimum, storage costs.
Article 4. The delivery date
An agreed delivery date is not a deadline unless expressly agreed otherwise. The other party must, therefore, give Comm-Co notice of default in writing when delivery is not on time.
Article 5. Termination of the contract
The claims Comm-Co may have in relation to the other party are due and payable immediately in the following cases:
- Should Comm-Co be made aware of circumstances after concluding the contract that give it reasonable grounds to fear that the other party shall not meet said other party’s obligations;
- If Comm-Co has asked the other party to furnish security with regard to performance when the contract was concluded and this security is not forthcoming and/or is insufficient.
Comm-Co shall be deemed authorised to suspend the further execution of the contract and/or to dissolve the contract should the abovementioned cases arise without prejudice to the right of Comm-Co to claim damages.
Article 6. Guarantee
6.1 Comm-Co guarantees that the items it supplies are free from design, material and production errors during a period of twelve months after delivery based on the factory guarantee given to Comm-Co.
6.2 If the items show a design, material or production error, the other party shall be deemed to have the right to have the item repaired. Comm-Co may decide to have the item replaced should repairing it be deemed to be difficult. The other party shall only be entitled to receive a replacement if the item cannot be repaired.
6.3 Comm-Co shall be liable for damages that are a result of a defect in what Comm-Co has delivered in accordance with
6.4 The guarantee shall not be valid if the damage is the result of incorrect handling and/or treatment.
Article 7. Title retention
7.1 The items delivered by Comm-Co shall remain the property of Comm-Co until the other party has fulfilled all obligations listed below contained in any (sales) contract concluded with Comm-Co:
- The consideration(s) in relation to the item/items delivered or to be delivered;
- Any claims due to non-compliance by the other party of the (sales) contract(s).
7.2 The items delivered by Comm-Co that fall under the title retention in accordance with paragraph 1 may only be resold within the framework of normal business activities. For that matter, the other party is not deemed to be entitled to pledge items or establish any other right upon them.
7.3 In relation to delivered items that have been transferred to the other party and are deemed to be said other party’s property and which are still in the hands of the other party, Comm-Co reserves now for then the rights of pledge in relation to this as referred to in Article 3:237 of the Netherlands Civil Code as additional security in relation to claims, which are different to the ones listed in paragraph 1 of this article, that Comm-Co may be entitled to receive from the other party due to whatever reason. The right included in this paragraph shall also apply with regard to items delivered by Comm-Co that have been adapted or processed by the other party which means that Comm-Co shall have lost its title retention.
7.4 If the other party should not fulfil its obligations or there is a well-founded fear that said other party shall not fulfil its obligations, Comm-Co shall be entitled to remove or have removed the delivered items on which the title retention rests as referred to in paragraph 1 at the other party's site or at the site of third parties that are storing the item(s) for the other party. The other party must provide all cooperation in relation to this on penalty of a fine of 10% per day of the amount owed by said other party.
7.5 If third parties would like to establish or wish to exercise any rights with regard to the items delivered under title retention, the other party must inform Comm-Co as quickly as can be reasonably expected.
7.6 The other party must at the first request of Comm-Co:
- Insure and keep insured the items rented and/or delivered under title retention against fire, explosion and water damage and theft and to make available for inspection the insurance policy unless otherwise agreed;
- Pledge to Comm-Co using the method prescribed in Article 3:239 of the Netherlands Civil Code all claims of the other party related to insurance companies with regard to the items rented as well as all items delivered under title retention;
- Pledge to Comm-Co using the method prescribed in Article 3:239 of the Netherlands Civil Code the claims that the other party obtains towards said party’s buyers when reselling items delivered by Comm-Co under title retention;
- Mark as Comm-Co’s property the items delivered under title retention;
- Provide cooperation in other ways in relation to all reasonable measures that Comm-Co wishes to take with regard to the protection of its property right regarding the items and which do not unreasonably impede the other party when performing the normal activities of said other party’s business.
Article 8. Defects
8.1 The other party must investigate or give instructions for an investigation to take place in relation to the bought or rented items when they are delivered. The other party must determine whether that which has been delivered actually conforms with the contract, namely:
- Whether the correct items have been delivered;
- Whether the delivered items match what has been agreed in relation to quantity;
- Whether the delivered items meet the agreed quality requirements or, should these not exist, the requirements that can be set for normal use and/or commercial purposes.
8.2 Defects that are not visible must be reported to Comm-Co in writing within 48 hours after discovery by the other party.
8.3 Even when the other party makes a timely claim, said other party's obligation to pay and purchase the made orders shall continue to exist. Items may only be returned to Comm-Co after prior written permission.
Article 9. Payment
9.1 Payment must occur within the agreed payment term by transferring the amount due to bank account number 330487701 held at the to Rabobank Hulst branch that is in the name of Comm-Co BV with registered offices in Hulst. The other party shall be deemed to be in default once the payment term has elapsed as shown on the invoice; the other party shall owe the statutory interest rate with regard to the amount due and payable from the moment on which default commences.
9.2 The obligations of the other party shall be immediately due and payable in case of winding-up, bankruptcy or suspension of payment of the other party.
9.3 Payments made by the other party shall, in the first place, always reduce all interest and costs due and payable and, in the second place, shall reduce claimable invoices that are outstanding the longest even when the other party states that settlement is related to a later invoice.
Article 10. Collection costs
Should the other party be in default in relation to fulfilling one or more of said other party’s obligations, all reasonable costs related to obtaining settlement extrajudicially shall be paid by the other party. In this case, the other party must pay Comm-Co the extrajudicial collection costs calculated in accordance with the rates set by the Netherlands Bar Association. If Comm-Co should demonstrate that Comm-Co has incurred higher costs that were required in all reasonableness, these shall also be deemed to be payable by the other party.
Article 11. Liability
11.1 The guarantee shall apply as described in Article 6 (Guarantee) of these Terms in relation to defects of the items delivered.
11.2 The liability of Comm-Co, insofar as this is covered by its liability insurance, is limited to the amount of the payment made by the insurance company. Should the insurance company not make a payment with regard to any case or should the loss not be covered by the insurance, Comm-Co’s liability shall be limited to one time the amount of the relevant invoice.
11.3 The liability limitations included in these Terms shall not apply if the loss can be attributed to an intentional act or omission or gross negligence of Comm-Co or its executive employees.
Article 12. Force majeure
12.1 Force majeure shall mean: circumstances that impede the fulfilment of the obligation and that cannot be attributed to Comm-Co. The following shall be deemed to apply in relation to this issue (if and insofar as these circumstances make fulfilment impossible or make fulfilment unreasonably difficult):
- Strikes at other companies than Comm-Co;
- Wildcat or political strikes at Comm-Co’s;
- A general lack of required base materials and other items or services required for bringing about the agreed performance;
- Standstills/delays at suppliers or other third parties that could not be envisaged on which Comm-Co depends;
- General shipment problems.
12.2 Comm-Co also has the right to appeal to force majeure if the conditions that may impede (further) fulfillment occur after Comm-Co has fulfilled its obligation.
12.3 Comm-Co’s delivery and other obligations shall be suspended during force majeure. If the period in which Comm-Co cannot fulfil its obligation due to force majeure lasts longer than one month, both parties shall be entitled to dissolve the contract. An obligation to pay compensation shall not be deemed to apply in this case.
12.4 Should Comm-Co have partially fulfilled its obligation or should Comm-Co only have been able to fulfil its obligations in part when the force majeure arises, Comm-Co shall be entitled to invoice separately for the already delivered and/or deliverable part and the other party is obliged to settle this invoice as if a separate contract should be involved. This shall, however, not apply if the already delivered and/or deliverable part does not have an independent value.
Article 13. Settlement of disputes
Notwithstanding the legal provisions with regard to the competence of the civil court, every dispute between the other party and Comm-Co, should the District Court be deemed competent, shall be settled by the District Court of Middelburg. Comm-Co shall, however, continue to be entitled to summon the other party to appear at the competent court according to the law or any applicable international treaty.
Article 14. Applicable law
Dutch law shall apply to all contracts between Comm-Co and the other party.
Article 15. Changing terms
Comm-Co is entitled to implement changes to these Terms. These changes shall come into effect on the announced effective date. Comm-Co shall send the changed terms on time to the other party. If an effective date is not announced, changes towards the other party shall come into effect once said other party has been told about the changes.
