GENERAL TERMS AND CONDITIONS OF SALE OF QURAILS (A TRADE NAME OF GOELST NL B.V.) 2022-06
Article 1. General
- These General Terms and Conditions (the ‘General Conditions’) apply to all offers from Qurails and to all contracts for sale with Qurails, in the broadest sense of the words.
- In these General Conditions, reference to ‘Qurails’ means Goelst NL B.V., a private limited company with the trade name Qurails, or an associated company.
- In these General Conditions, 'the Customer' means the party with whom Qurails contracts for the supply of goods and/or services and the performance of work, including a party to which Qurails has submitted an offer.
- The Parties may only agree to deviate from these General Conditions in writing, limited each time to the particular contract for which the deviation is agreed.
- In the event that any provision of these General Conditions proves to be void or voidable, the remaining provisions of these General Conditions shall continue to apply.
- In these General Conditions the term ‘in writing’, includes communication by e-mail.
- If Qurails provides the Customer with a translation of these General Conditions, this is done as a service, and in the event of a conflict with the original Dutch text, the Dutch text shall prevail.
Article 2. Creation of a contract.
- All offers, quotations, etc. are subject to contract, unless expressly stated otherwise.
- A contract becomes binding when it is confirmed in writing by Qurails to the Customer or when Qurails actually commences performance of the contract.
Article 3. Prices
- Unless stated otherwise, prices indicated by Qurails are:
- in euros;
- excluding VAT
- excluding transport and insurance costs;
- excluding packaging;
- excluding customs clearance charges;
- Qurails is entitled to increase the price if changes occur in cost price factors between the date of the contract and delivery. Qurails will inform the Customer as soon as possible of any increase in price. In the event of an increase of more than 10%, the Customer shall be entitled to terminate the contract.
- In the case of a composite price, Qurails is under no obligation to make a part supply at a corresponding part of the quoted price, nor does the quotation automatically apply to any subsequent orders.
Article 4. Samples, models and examples
- If a model, sample or example is shown or provided by Qurails, it is assumed that this is for illustration purposes only. The quality of the items to be delivered may differ from the sample, model, or example, unless Qurails confirms in writing that the supply will comply with the said sample, model, or example.
- If Qurails provides the Customer with an inventory list prior to delivery and the Customer approves this list in writing, this inventory list serves as a reference for the goods to be delivered by Qurails in terms of numbers, models, sizes and colours.
Article 5. Delivery and delivery dates
- All deliveries by Qurails within the Netherlands are ex works as referred to in the Incoterms applicable on the date of the contract. All deliveries by Qurails outside the Netherlands are made in accordance with the FCA delivery condition as referred to in the Incoterms applicable on the date of the contract.
- As per the current Incoterms 2020, in the case of delivery ex works , the delivery, transport and unloading are at the risk of the Customer. Even if employees of Qurails assist with delivery, transport or unloading or further transport, once the goods have been unloaded next to the means of transport, all risk is for the Customer.
- In principle, transport is carried out in the manner proposed by Qurails. If the Customer desires a different mode of transport, it must expressly make this known.
- If goods, for whatever reason, cannot be taken by the Customer on the delivery date confirmed by Qurails or if the order cannot be carried out due to circumstances caused by the Customer, Qurails is entitled to invoice the Customer for the goods ordered or the material ready for export.
- If goods remain in storage at Qurails under section 4 of this article, the storage is at the expense and risk of the Customer.
- If the storage has lasted two months, Qurails is entitled to regard the contract as terminated, to sell the goods, to set off the price obtained against the loss suffered, and to claim for further loss from the Customer.
- A delivery note, consignment note or similar document provided on delivery is deemed to accurately reflect the quantities and specifications of the goods delivered, unless the Customer notifies Qurails in writing of its objection within 3 working days.
- Delivery times quoted by Qurails are always approximate and are never strict deadlines.
- In the event of a delay in delivery, Qurails will not be in default until the Customer has given Qurails written notice of default, granting Qurails a reasonable period in which to fulfil its obligations.
- A delivery period only begins once the required information has been provided to Qurails by the Customer.
- In the event of force majeure (including strikes, fires, destruction of goods during transport, water damage, government measures, export bans, war, epidemics, mobilisation, transport, export or import restrictions and employee lockouts), Qurails will be entitled, after notifying the Customer in writing, to extend the delivery time by the duration of the obstructions.
Article 6. Retention of title
- Qurails remains the owner of the goods it delivers until such time as the Customer has fulfilled all its obligations to Qurails under the relevant contract, and previous and subsequent contracts. Until that time, the Customer must keep the goods supplied by Qurails separate from other goods, clearly identify them as the property of Qurails, and insure them properly at all times.
- In the event of any insurance payment on goods subject to retention of title, Qurails is entitled to this payment. Insofar as necessary, the Customer undertakes to cooperate with Qurails in everything that might (appear to) be necessary or desirable in that context.
- If the Customer fails to fulfil any obligation under article 6.1, or if there is a well-founded fear that it will not fulfil these obligations, it will be in default, and Qurails will thereby be entitled, without notice of default being required, to immediately take possession of the items delivered, wherever they may be. The costs of recovering the goods shall then be at the expense of the Customer.
- Until the said claims are satisfied, the Customer shall not be entitled to dispose of the goods concerned or to establish a pledge or non-possessory pledge on the said concerned (which prohibition shall have effect under property law).
- If Qurails is unable to invoke its retention of title because the items delivered have been mixed, deformed or copied, the Customer is obliged to pledge the newly formed items to Qurails and to perform the necessary acts in that respect.
- The Customer must immediately inform Qurails if it intends to apply for a moratorium or bankruptcy or if it is expected that third parties will apply for the Customer's bankruptcy or will attach the items delivered under retention of title or will establish or assert rights to such goods.
- In the event that Qurails wishes to exercise its property rights, the Customer gives prior unconditional and irrevocable permission to Qurails or a third party to be appointed by Qurails to enter all those places where the property of Qurails is located and to recover the same.
Article 7. Technical foreign requirements
- Qurails does not guarantee that the items delivered comply with technical requirements, standards and/or regulations applicable abroad imposed by laws or subordinate regulations.
Article 8. Quality
- Unless special/specific quality(s) are expressly agreed, Qurails may deliver goods of a normal and customary commercial quality.
- Minor deviations in quality, colour, hardness, format, thickness, etc., do not entitle the Customer to a discount and do not constitute a reason for suspension of payment or termination of the contract. In assessing whether a delivery deviates from the permissible thresholds, an average should be taken from the delivery.
- Minor changes (e.g. minor model changes) to or from the articles supplied by Qurails do not entitle the Customer to terminate the contract.
Article 9. Warranty, inspection and complaints
- Warranties are limited to the period in which Qurails itself has a warranty from its producers/suppliers and only apply in those cases in which Qurails can successfully make a claim under such warranty.
- Qurails warrants only the quality of the items delivered in the condition they are in at the time they leave the factory or the warehouse of Qurails. The Customer must strictly observe the regulations or instructions concerning the method of storage, use, treatment, assembly and application of the goods.
- The Customer undertakes to check the delivered goods thoroughly for any defects on the day of delivery. If the Customer discovers a defect in this period, it must report it to Qurails in writing without delay, but no later than 7 days after the discovery. Complaints made later than 7 days after delivery cannot result in further obligations on, and/or liability of, Qurails.
- In the event of a justified complaint, the Customer only has the right to repair of the item, without prejudice to Qurails's right to decide to replace the item. Only if Qurails assesses that repair is not possible is the Customer entitled to replacement.
- Complaints do not give the Customer the right to suspend its payment obligations.
Article 10. Payment
- Payment must be made upfront via a pro-forma invoice in the manner indicated by Qurails and in the currency invoiced unless agreed and confirmed by Qurails otherwise. Payment is not deemed to have been made until the full amount owed has been received by Qurails.
- The Customer is not entitled to suspend or set off without the express agreement of Qurails.
- Payments made by the Customer shall always be used firstly to settle all interest and costs due and secondly to settle due and payable invoices which have been outstanding the longest, even if the Customer stipulates that the payment relates to a later invoice or stipulates another purpose for the payment.
- Qurails is always entitled to demand advance payment or security and to suspend its obligations under the contract until the advance payment is received or security is provided.
- If an invoice is not paid within the term of payment, the Customer shall be in default, without a summons or notice of default being required. At that time, all outstanding invoices of Qurails become immediately due and payable in full.
- In the event of late payment, the Customer shall owe default interest of 1.5% per month.
- If, as a result of the Customer's default, Qurails decides to pass its claim to a third party for collection, all associated costs, such as administration costs, judicial and extrajudicial costs, including the costs of a bankruptcy petition, will be borne by the Customer. The extrajudicial collection costs are calculated at 15% of the unpaid amount or affixed sum of € 500, whichever is more.
- If Qurails has incurred more costs that were reasonably necessary, these will also be borne by the Customer.
Article 11. Liability and indemnity
- Qurails is not liable for loss suffered by the Customer, except and insofar as the Customer can prove intent or gross negligence on the part of the management of Qurails.
- Qurails is not liable for loss of whatever nature arising from Qurails acting on the basis of incorrect and/or incomplete information provided by or on behalf of the Customer.
- Qurails is under no circumstances liable for trading losses, losses due to delays, loss of earnings or stagnation losses, or other consequential losses suffered by the Customer. Consequential loss expressly includes loss to goods that have been hung from an item supplied by Qurails.
- Qurails is insured against liability. The liability of Qurails for loss suffered by the Customer is explicitly limited to the amount paid out by Qurails's insurance in the case in question, plus Qurails's excess. If and insofar as no payment is made under this insurance for any reason whatsoever, liability for loss is explicitly limited to 50% of the invoice amount, excluding VAT, relating to the delivery to which the loss relates, or at least to which the loss is related. The latter to a maximum amount of € 5,000.00 per loss claim
- Any further liability is expressly excluded.
- The Customer indemnifies Qurails against any third-party claims connected with the performance of the contract by or on behalf of Qurails, except in the case of intent or gross negligence by management of Qurails executives. The costs incurred by Qurails in defending such third-party claims are also payable by the Customer.
- If Qurails is sued by any third party, the Customer must assist Qurails both in and out of court.
- The Customer must report any loss in writing to Qurails within 10 days of it occurring, failing which it loses any rights in this respect. Qurails is entitled to investigate (or have investigated) the loss or the cause of the loss, and the Customer must provide all assistance required by or on behalf of Qurails in such investigation.
Article 12. Suspension, termination and notice of termination
- In addition to the other provisions of these General Conditions and in the law, Qurails is entitled to suspend compliance with its obligations under the contact or to terminate the agreement, if:
- the Customer does not fulfil its obligations under the contract in full, in time or at all;
- circumstances come to the knowledge of Qurails after the date of the contract that justify the fear that the Customer will not fulfil its obligations;
- the Customer has been requested to provide security pursuant to Article 10.4 and this security is not provided or is insufficient;
- if the delay on the part of the Customer means that Qurails can no longer be required to perform the contract under the agreed terms.
- Qurails is also authorised to terminate the contract if circumstances arise of such a nature that performance of the contract is impossible or if other circumstances arise of such a nature that it cannot be reasonably required to comply with the contract without changes thereto.
- If the contract is terminated, the claims of Qurails against the Customer are immediately due and payable. If Qurails suspends the performance of its obligations, it retains its claims under the law and agreement.
- If Qurails suspends or terminates the contract, it is not in any way liable to pay compensation for loss and/or costs howsoever arising.
- If the termination is attributable to the Customer, it must compensate Qurails for loss thereby incurred, including loss of profit and the costs incurred directly and indirectly as a result of termination.
- In the event of (an application for) the liquidation, moratorium, bankruptcy, attachment of property of, or debt restructuring of, the Customer, or any other circumstance as a result of which the Customer can no longer freely and fully dispose of its assets, Qurails is free to terminate the contract with immediate effect, without any obligation on its part to pay any compensation for termination. The claims of Qurails on the Customer will become immediately due and payable in such a case. The Customer must inform Qurails immediately in writing if any of the circumstances mentioned above occur or threaten to occur, failing which it will incur a penalty of € 250 for each day that it is in breach of such obligation.
Article 13. Packaging
- The Customer must return returnable packaging (e.g. pallets) within fourteen days, empty and in undamaged condition. If the Customer does not comply with this obligation, all costs arising therefrom shall be at its expense. Such costs include those resulting from late return and costs of replacement, repair or cleaning.
- If the Customer does not return the loaned packaging after a reminder has been sent within the period stated in the reminder, Qurails is entitled to replace it and charge the costs.
Article 14. Assembly and other work
- If assembly work has to be carried out above voids, staircases and the like, Qurails is entitled to adjust the prices. This situation falls outside the scope of Article 3.2.
- The maximum mounting height of a rail is 300 cm.
- The Customer must provide, free of charge:
- sufficient clean, dry and free working areas;
- internal transport can be carried out as efficiently as possible by means of lifts and free access;
- a rubbish container or in some other form for an adequate disposal of waste;
- construction flow;
- the necessary lockable storage places for materials, tools and other items;
- insurance of the materials used by Qurails in the performance of the work.
Qurails is entitled to suspend its obligations under the contract until it is satisfied that the Customer has provided adequately for the above.
- The Customer bears the risk for damage to and loss of materials, parts or tools which are brought to the place where the work is carried out insofar as this can be attributed to the Customer. Loss of and/or damage to the said items during the time they are under the Customer's supervision outside of normal working hours is at the Customer's risk.
- The Customer bears the risk for loss caused by defective or unsuitable goods it provides or prescribes or that it stipulates must be obtained from a prescribed supplier and for the late delivery of such goods.
- The Customer bears the risk for loss caused by errors or defects in the drawings, calculations, constructions, specifications or implementation instructions it provides.
- The Customer bears the risk for the incorrect performance of the contract attributable by assisting persons it prescribes or provides.
- If during assembly it becomes apparent that the subsurface deviates from the Customer's specifications or is of such a quality that it correct assembly is not possible with the usual auxiliary plugs and/or screws or at all, this can result in extra assembly costs and/or waiting charges. Qurails is not liable for the quality of the subsurface and/or the possibility of mounting on this subsurface and/or damage to the subsurface and surface as a result of poor quality of subsurface.
- The order pertains to the execution of the work in a phase of undisturbed work in glass-tight, clean and unfurnished rooms, under normal working hours.
- Cancellation or change of the agreed assembly date is free of charge if the Customer notifies Qurails in writing more than 3 working days before the start of the assembly. Qurails is entitled to charge 50% of the quoted assembly costs if the Customer cancels or changes the agreed assembly date within 3 working days before commencement. If the Customer cancels or changes the assembly date within 1 working day, Qurails is entitled to charge 100% of the quoted assembly costs.
Article 15. Disputes and applicable law
- Contracts between Qurails and the Customer are governed by Dutch law.
- All disputes are to be settled by the Court of Oost-Brabant, unless mandatory legal provisions dictate otherwise, without prejudice to Qurails's right to choose another court.
These conditions were filed with the Netherlands Chamber of Commerce on 29-10-2022.
Goelst NL B.V. - Ch. of Comm. 58037802