General terms and conditions of sales
1. General
1.1. These General Terms and Conditions of Sale apply to all legal relationships between parties, including those arising from agreements concluded and to be concluded.
1.2. SHI is entitled to alter these General terms and conditions of sales unilaterally. SHI will inform the Customer with timely notification of such change.
1.3. The General conditions of business of the Customer shall apply only if and when expressly accepted by SHI in writing.
1.4. The sales offers from SHI shall, at all times, be subject to change without notice insofar as they are not expressly described as being of a binding nature.
1.5. An agreement shall only come into existence by way of the written confirmation by SHI of the acceptance of a sales offer by the Customer or by way of delivery of goods or services. 1.6. In the case of doubt or silence regarding a by SHI given offer, the offer shall be deemed to have been rejected.
2. Definitions
2.1. Where SHI is mentioned in these General terms and conditions of sales, it refers to SHI b.v. or any affiliated company.
2.2. Where T&C is mentioned in these General terms and conditions of sales, it refers to this document and thus the General terms and conditions of Sales of SHI.
2.3. Where Customer is mentioned in these T&C, it refers to the entity which intends to buy products from SHI and with whom SHI is willing to enter into an agreement.
2.4. Products are the goods or services which are subject of a tender, a quotation request, an offer or a sales order which are either offered by SHI or requested by the Customer.
2.5. A sales offer is a, within a certain but defined time limit, offer of a product or service done by SHI.
2.6. When SO is mentioned in these T&C, it refers to the sales order.
2.7. A SO is an agreement in writing from the Customer to SHI in which the products are described including the quantity, prices, delivery schedule, etc.
2.8. Whenever a SO is mentioned, the SO must be seen as an agreement where both Customer and SHI have each the full obligation to fulfil the agreement.
2.9. Where supply is mentioned in these T&C, it refers to the delivery of the products mentioned in a SO to the address given by the Customer.
3. Application of the T&C
3.1. Should the Customer present in his SO a provision which conflicts with these T&C, the T&C of SHI shall prevail even in case SHI fails to object to such provision. 3.2. By placing a SO the Customer approves these T&C in present and future business relationship between SHI and Customer.
3.3. Amendments of these T&C are only valid if these amendments are importunately and explicitly mutually agreed by the Customer and SHI and the amendments are laid down in writing. The mutually agreed amendment of these T&C is only valid for the extent as laid down in the written consensus of the amendment.
3.4. Any mutually agreed amendment of these T&C are only applicable on the defined amendments. All other parts of these T&C will be completely in force as laid down and intended in these T&C.
4. The conclusion of an SO
4.1. The offer from SHI to Customer shall, unless stated otherwise, be valid for a period such as stated in the offer as from the date of the offer.
4.2. A SO is only established by a written confirmation by SHI of acceptance of a sales offer by the Customer or by delivery of goods or services.
4.3. Prices mentioned in the SO are excluding taxes and are calculated at the actual rate. SHI holds the right to make corrections in the calculated prices in case of fluctuations in rates.
4.4. In those cases where the SO is not based on an offer made by SHI, the SO will become binding if SHI has accepted it. SHI will send a confirmation on request.
4.5. SHI shall not be liable for any incorrect delivery made after an oral SO, unless the Customer has confirmed the SO in writing and within reasonable time.
5. Terms of payment
5.1. The invoice amount is, unless otherwise agreed, to be paid within thirty (30) days after invoicing without any deduction.
5.2. Payments shall always relate to the oldest sum due. When a payment is made for and with reference to a more recent sum due, the payment will not lower the oldest sum due.
5.3. Any bill of exchange or cheque shall only be deemed to constitute payment upon being cashed in. Payments by way of bill of exchange and cheque must be agreed by SHI in advance and in writing. Costs incurred as a result of discounts and other bills of exchange shall be borne by the Customer and shall fall due for payment without delay plus the respective valid VAT.
5.4. The Customer deducts only those claims that are undisputed and are agreed by SHI. When such deduction applies, the Customer will inform SHI in advance.
5.5. In case of a credit note, SHI will make the payment of the credited amount within thirty (30) days as from the date of the credit note.
5.6. The Customer may only exercise a right of retention on the basis of counterclaims that are undisputed or against which no recourse is possible, and are the result from the same SO.
5.7. In case of reasonable doubt on the part of SHI regarding the liquidity of the Customer, SHI has the right to postpone the delivery and to consider dissolving the agreement (see chapter 11 of these T&C).
5.8. In event of late payment, the customer is a credit limitation surcharge of two percent (2%) of the invoice amount due. Additionally, in case of delayed payments, an interest of one and a half percent (1.5%) per month shall be charged. A part of a month will be rounded as a whole month.
5.9. If the Customer fails to pay, all judicial and extra-judicial costs are for the account of Customer. The extra-judicial debt collection costs are at least fifteen per cent (15%) in the Netherlands and twenty per cent (20%) for countries other than the Netherlands of the principal sum owed by Customer with a minimum of one hundred and twenty five Euro (€ 125,=).
5.10. If the Customer has not done any payments on the due date, SHI may discontinue further work on current orders and request that all orders be subject to immediate advance payment, including orders not yet completed, or SHI may request an appropriate security. If the Customer does not honor such a request to do an advance payment or provide a security within a reasonable period of time, SHI is entitled to terminate the SO unilaterally and to charge the Customer the costs involved.
6. Retention of title
6.1. Products pertaining to the delivery shall remain the property of SHI until the Customer has fulfilled SHI’s claims under the SO including those, but not limited to interest rates receivables and costs.
6.2. In the case of processing, installing, joining and mixing of Retained Products with other material that is not the possession of SHI, SHI shall acquire co-ownership of the new product in the proportion of the invoiced value of our products to that of the other material at the time of processing, joining or mixing.
6.3. The Customer shall inform SHI immediately of any seizure, bankruptcy request, or other act of intervention by third parties, no matter what reason. This also applies in case of death or placement under receivership of the Customer and transfer of business or parts thereof.
6.4. If the Customer commits a culpable breach of essential contract obligations such as default in payment, after issuing a warning, or in situations as described in paragraph 6.3, SHI is entitled to unilaterally terminate or suspend the SO. This applies even if the product has already been installed at or by the Customer. All additional costs made by SHI due to the afore mentioned situations shall be borne by the Customer.
7. Delivery en delay
7.1. Time limits set for delivery are part of the SO.
7.2. Partial deliveries by SHI shall be allowed, unless they are unreasonable to accept for the Customer.
7.3. When a Customer requires an early delivery of a SO, this can only be done after SHI accepted the requested delivery date. In case such early delivery request goes with additional costs, these will be invoiced to the Customer.
7.4. By signing the pack list, the Customer confirms the delivery, with respect to the number of pallets, colli and or bundles, is complete. After the products are taken into receipt by the Customer, the products are deemed to be delivered according the SO and in a good condition if no notification or claim, indicating otherwise has been received from Customer by SHI within three (3) working days after the delivery was made counting from the day of delivery. Customer is obliged to inspect the received goods and to give immediately notice of any defect.
7.5. The products and with these the liability and the risk, shall pass to the Customer as soon as Customer or his representative has taken receipt of the products.
7.6. The products are deemed to be legally owned by the Customer as soon as the Customer makes the full payment. This also applies if the payment has been done before the products are taken into receipt by the Customer or his representative.
8. Guarantee
SHI guarantees that the products as supplied are suitable for their intended use and, if applicable, special use as far as this special use is specified in the SO with the customer.
8.2. The guarantee of SHI is not applicable if the products, to which the guarantee refers to, are improperly used, (incompetent) repaired, altered or modified by or on behalf of the Customer or the user.
If the guarantee given by SHI is for products which are situated outside the Netherlands, SHI is then only liable for the costs for repair or replacement up to the amount that these costs would have been if this was carried out in the Netherlands.
8.4. If the Customer claims against the guarantee with respect to products supplied by SHI, these can only be returned by Customer to SHI after prior written permission from SHI. Returned products must always be accompanied by the written permission of SHI and at least a clear and fully filled complaint form containing a clear description of the complaint.
9. Liability
9.1. SHI is not liable for any damage suffered by the Customer, including but not limited to business, indirect or consequential damages, as a result of acts or omissions of SHI or third parties engaged by SHI, unless there is intent or gross negligence.
9.2. The liability of SHI will be limited to the sum the insurer pays, to increase with the applicable own risk of SHI.
9.3. If for any reason, the insurance referred to in Article 9.2 does not entitle any monetary compensation, liability shall be limited to the amount (excluding VAT) invoiced by SHI to the Customer in the three months prior to the liability and has been paid by Customer in time, with a maximum of € 25,000 per event or series of related events.
9.4. Any claim expires one year after the commencement of the day following the Customer's claim and with SHI as the person liable for such damage.
9.5. In case of a delay in fulfilment of the SO, SHI will inform the Customer as soon as he is informed about such delay. SHI cannot be hold responsible or liable for such delay if the delay is caused by force majeure like but not limited to war, strikes, flood or other nature disaster, fire, export restrictions or government measures beyond the sphere of responsibility or control of SHI and in relation to the supply chain of SHI. This also applies when SHI fails to fulfil the obligation to deliver the goods within the requested timeframe when an unforeseeable growth of sales is at hand. This implies that SHI's liability in the event of a late delivery is limited and only applicable in case of intent or deliberate recklessness of the leadership of SHI.
9.6. When the Customer receives any notification the delivered or distributed products are not in compliance with legal requirements or other, for example safety related non-conformities, the Customer is hold to immediately inform SHI. In such case, SHI preserves the right to analyse the non-conformity before any reaction regarding the content of the non-conformity is returned by the Customer.
9.7. When the Customer receives cease and desist notification, the Customer shall immediately and in writing inform SHI and forward such cease and desist notification to SHI. The Customer will not undertake any action in such case and will await additional instructions from SHI. In case the Customer fails to inform SHI or when the Customer undertakes an action in relation to the cease and desist notification, the Customer will be held responsible for the damage resulting from the Customer’s lack of timely forwarding the notification or undertaken action, even if this damage extends the cease and desist notification the Customer received.
9.8. If SHI, on Customer's request, produces a product equal to a customer's example, SHI cannot be held liable if the product concerned appears to be protected by Intellectual Property rights of a third party.
10. Intellectual Property (IP)
10.1. Unless otherwise agreed, all Intellectual Property rights relating to the products, materials, information and services within the context of the Agreement as provided or made available by SHI, are vested exclusively in SHI and / or its licensers.
10.2. Nothing in these T&C and / or any agreement with the customer implies a transfer of Rights of Intellectual Property. The Customer obtains exclusively the non-exclusive and non-transferable right to the products, materials, information and / or services for the materials, goods and services stipulated in the Agreement with the customer and under the conditions stipulated in the Agreement with the customer.
10.3. The Customer is not permitted to remove or modify any designation, image, text in relation to the Intellectual Property Rights belonging to the products, materials, information and services of SHI and the application of those rights to other products, information carriers and sources unless this is expressly permitted by SHI.
10.4. If the Client does not comply with these conditions and there is an infringement of the Intellectual Property of SHI and / or its licensers, SHI will give notice of default to the Client and all costs and subsequent costs, including, but not limited to, fines, and to charge any legal costs to the Customer.
11. Termination and dissolution
11.1. SHI is entitled to terminate a perpetual SO via registered mail, respecting a notice period of one (1) month.
11.2. If SHI decides to dissolve the sales agreement on the grounds of 5.7, 5.10, 6.3 or 6.4 or on other reasonable grounds, SHI will immediately claim all outstanding receivables against the customer and demand that the Customer, where relevant, to return goods delivered. Costs that are associated with such an action will be recovered from the Customer.
11.3. If SHI proceeds to terminate the sales order on legitimate grounds as referred to in 11.1 and 11.2, the Customer cannot hold SHI liable for any loss or damage that may occur as a result of this dissolution.
12. Cancelation
12.1. When Customer cancels an accepted SO, SHI is entitled to charge Customer with a compensation for damages of thirty per cent (30%) of the invoice amount plus any costs charged by suppliers to SHI because of loss.
13. Applicable law and competent court
13.1. In case of any doubt or discussion, the Dutch version is prevalent.
13.2. Dutch law shall be applicable to all legal relationships between Customer and SHI. The provisions of the Vienna Sales Convention and United Nations Convention on Contracts for the International Sale of Products (1980) shall not apply.
13.3. All disputes arising under, or in connection with any SO or SO to be agreed, shall be submitted to the exclusive jurisdiction of the competent Court in ‘s Hertogenbosch, the Netherlands, without prejudice to SHI's right to submit disputes to the court of residence of the customer.
These General terms and conditions of sales were adopted on 08-02-2019 and are filed with the Chamber of Commerce in the Netherlands under number 34083276.
