Registered with the Chamber of Commerce for Central The Netherlands, under number 300.88.663
- Definitions
1.1. The following definitions are used in these General Sales Conditions (‘Sales Conditions’):
a. ‘Purchaser’: a natural or legal person who wants to enter into an agreement with ERU, or who
has entered into an agreement with ERU;
b. ‘Quotation’: an offer by ERU to the Purchaser for the supply of Products;
c. ‘Agreement’: an agreement for the supply of Products by ERU to the Purchaser;
d. ‘Products’: products and services;
e. ‘In writing’: under ‘in writing’ is also understood ‘electronically’.
- Applicability
2.1. The Sales Conditions are applicable to and form part of all Agreements and Quotations and are
applicable to all (other) actions and legal transactions between ERU and the Purchaser. The
Sales Conditions are also applicable to the request for and negotiations regarding a Quotation or
an Agreement.
2.2. The stipulations within the Agreement will prevail in the event of contraction between the Sales
Conditions and an Agreement.
- Quotation
3.1. Quotations are obligation free and can be revoked, unless determined differently by ERU.
3.2. A Quotation is, in any event, never valid for more than ten working days, unless determined
differently by ERU, in writing.
- Agreement
4.1. Orders and Quotation acceptances, by the Purchaser, are irrevocable. Orders from the
Purchaser, on their own, do not bind ERU. ERU is only bound by an order when it has accepted
the order in writing, or when it has executed the order.
4.2. The written confirmation is determinative for the contents of the Agreement.
4.3. An Agreement can only be amended by means of written approval from ERU and from the
Purchaser.
4.4. The figures, sizes, weights, or other indications provided by ERU with regard to Products, are
provided with the utmost care, but ERU cannot guarantee that they won’t deviate to some extent
from that stated. Customary deviations in the sector are allowed, by definition.
- Price
5.1. If not agreed to differently, prices will exclude VAT, Ex Works Woerden (in accordance with that
stipulated in the latest version of Incoterms).
5.2. If ERU has taken on the responsibility to arrange for packing, packaging, loading, transport,
shipment, offloading or insurance of Products, without having agreed to a price explicitly and in
writing, ERU will be entitled to charge the client for the actual costs and / or the ordinary rates
charged by ERU.
- Delivery
6.1. If not agreed to differently, products will be delivered ‘ex works’ (Ex Works Woerden, in
accordance with that stipulated in the latest version of Incoterms).
6.1. ERU is entitled to deliver the Products in terms and / or segments. Every partial delivery is
considered an independent delivery for the implementation of these Sales Conditions.
6.2. The Purchaser should receive the Products at the agreed location and time, in a timely fashion. If
the Purchaser fails to do so, it will be in default, and ERU will be entitled, without a further default
notice, to have the Products transported and / or stored at the risk and account of the Purchaser.
6.3. The day on which the Purchaser fails to receive the delivery will be considered the delivery day.
6.4. If the Purchaser does not allow receipt of the Products during a period of more than 2 working
days after delivery, ERU will be entitled to dissolution of the agreement, without prejudice to its
right to claim compensation and without prejudice to its other contractual or legal rights.
6.5. The delivery periods and delivery schedules indicated by ERU are non-binding. In the event of
delays, the delivery time will be extended accordingly. ERU will notify the Purchaser in the event
that delivery is delayed.
6.6. ERU will never be liable for any loss incurred by the Purchaser or any external party as a result of
an incomplete delivery, or a delivery that takes place too late. Incomplete delivery or delivery that
takes place too late will never give reason for the Purchaser to call on dissolution of the
Agreement. The Purchaser indemnifies ERU against any claims by external parties, in this
regard.
- Payment
7.1. Unless stipulated differently in the Agreement, ERU invoices upon delivery of the Products.
Partial deliveries may also be invoiced in part.
7.2. The Purchaser should pay within 14 days from the date of invoice, in the currency indicated on
the invoice.
7.3. Unless indicated differently in the Agreement, each payment by the Purchaser should be made
without a discount, deduction or sett-off, regardless of the reasons. The Purchaser will never be
granted suspension of its payment obligations towards ERU.
7.4. The Purchaser will be deemed to have approved the invoice, unless the Purchaser protests
against an invoice within five working days from the date of signature.
7.5. If the Purchaser does not comply with its payment obligations under the Agreement in time, the
Purchaser will be in default by law, without any default notice being required. The Purchaser will,
in such event, owe the legal (trade) interest to ERU, without prejudice to ERU’s other contractual
and statutory rights.
7.6. All (extra) judicial collection fees incurred by ERU in order to get the Purchaser to adhere to its
payment obligations towards ERU, will be fully accountable to the Purchaser. The extra judicial
costs will amount to 15% of the amount owed, exclusive of VAT.
7.7. All payments by the Purchaser to ERU will be appropriated to comply with the (1) costs, (2)
interest and (3) principal amounts, in the sequence in which they are payable.
- Guarantee
8.1. The Purchaser should inspect the Products or have the Products inspected by a third party
enlisted by the Purchaser, immediately after receipt of the Products, and defects should be
reported within 48 hours after delivery. Possible visible defects should be reported to ERU in
writing within ten days after delivery, with motivation, and all claims by the Purchaser against
ERU will expire if this does not take place. ERU will deem the Agreement to be executed in full if
the Purchaser does not object during this complaint period.
8.2. Objection by the client with regard to ‘hidden’ defects should take place within 10 days after
discovery of said defect, or after said defect should reasonably have been discovered, yet no
later than 30 days after delivery, subject to expiration of any claim by the Purchaser against ERU.
8.3. The Purchaser should file its complaint in writing. The complaint should include a description of
the possible defect, in as much detail as possible. The Purchaser should allow ERU to investigate
the defect (or to have the defect investigated) and the Purchaser should provide its full
cooperation in this regard.
If investigation is not (no longer) possible on account of the Purchaser’s actions, any claim by the
Purchaser against ERU will expire.
8.4. The Purchaser cannot call on any right in connection with a shortcoming in observance if:
a. A defect, whether entirely or in part, is the result of unusual, improper, indiscriminate or careless
use of the Products;
b. The Product is modified, used or processed;
c. The Product is transferred and / or delivered to external parties;
d. ERU acquired the Product from a third party, whether entirely or in part, and ERU cannot submit
a claim based on a guarantee to the external party;
e. ERU used raw materials and similar items for the Products, under indication of the Purchaser;
f. The Purchaser has removed the Products from the packaging, did not follow the storage
instructions and other instructions from ERU, or if the sell-by-date was already exceeded before
the Purchaser objected to any shortcoming;
g. The defect involves a limited deviation in terms of quantity, quality, colour, finish, dimensions,
composition, etc., which is acceptable in the sector; or
h. The Purchaser has not observed all its (payment) obligations towards ERU.
8.5. Filing a complaint does not release the Purchaser from its payment obligations towards ERU.
8.6. If and for as far as ERU declares a complaint by the Purchaser to be founded, ERU will, by its
choice, (i) repair the defect in the Product, (ii) replace the defective Product, or (iii) take the
defective Product back and credit the Purchaser for the price of the Product. The Purchaser will
never be entitled to compensation from ERU on account of the delivery of a defective Product.
8.7. After establishing a shortcoming in a certain case, it will be mandatory for the Purchaser to do all
that which is necessary to preve
- Force majeure
9.1. Under force majeure, in the sense of these Sales Conditions, should be understood that which is
understood thereunder in legislation and in Dutch jurisprudence. Included thereunder is any
circumstance independent of ERU’s will, resulting in observance of (the relevant part of) its
obligations towards the Purchaser being hampered, delayed or made economically infeasible, or
as a result of which observance of its obligations cannot be reasonably expected from ERU,
including, amongst other things, any natural disaster, strike, industrial unrest, absence or delay
on the part of ERU’s suppliers, acts of war, lack of raw materials, epidemics, animal diseases,
transport problems, import and / or export embargoes, government measures, fire, explosion,
frost, high temperatures, malfunctions in communication connections and power failures,
revocation or non-renewal of necessary permits, certificates, licenses etc.
9.2. Force majeure does not release the Purchaser from its payment obligations.
9.3. In the event of force majeure, ERU will suspend its obligations for the duration of the force
majeure situation and the Purchaser will not be entitled to any compensation.
9.4. If a force majeure situation lasts for longer than three months, each party will be entitled to
termination or dissolution of the Agreement for the part which was not executed, with immediate effect, without being liable for any compensation.
- Liability
10.1. ERU will never be liable for indirect damage, consequential damage or immaterial damage.
10.2. If ERU is liable towards the Purchaser, pursuant to an Agreement and / or the law, in respect of
any damage, this liability will be restricted, in any event, to the amount paid to ERU in accordance
with the applicable liability insurance.
10.3. If ERU’s insurer decides against payment, regardless of the reason, if the insurance coverage
does not provide coverage, or if the applicable insurance lacks, ERU’s liability will, in any event,
be limited to the net invoice amount, exclusive of VAT, for the relevant Agreement or, if partial
deliveries were agreed to, the net invoice amount, exclusive of VAT, for the partial delivery which
relates the most to the event responsible for the damage. A maximum liability amount of €
100,000 will herewith apply, in all cases, per event or per series of events with the same cause.
10.4. The Purchaser indemnifies ERU against all claims by external parties, regardless of the nature or
the basis on which the claims are made, in connection with the execution of the Agreement or
possible resulting (purchase) agreements between the Purchaser and clients. The Purchaser
compensates ERU for all claims in connection with damage and / or costs, including possible
costs for legal assistance.
10.5. ERU is not liable for damage and / or fines incurred as a result of exporting the Products (or
having the Products exported) by the Purchaser or external parties. ERU will, in any event, not be
liable if merchandise does not comply with the statutory standards or other standards in the
countries to which the Products are exported. The Purchaser must, at all times, provide
instructions to ERU with regard to the statutory standards and other standards that are applicable
in the country to which the Product will be exported.
10.6. Those individuals employed by ERU or those assistants / external parties enlisted by ERU for the
execution of the Agreement can appeal to the Purchaser with regard to all methods of defence
derived from the Agreement, as if these individuals were party to the actual agreement.
10.7. Every claim against ERU, besides those also recognised by ERU, will expire during the single
course of 12 months after the claim was established.
- Product standards
11.1. The Purchaser should, with regard to the (sale of) Products, act in accordance with the applicable
requirements for product safety.
11.2. The Purchaser should provide all necessary assistance if ERU, whether based on European or
Dutch legislation concerning general product safety, wants to issue a public warning or wants to
announce a ‘product recall’ or other measures.
11.3. The Purchaser will not, without prior written consultation and written approval from ERU (i)
proceed with any measure in connection with European or Dutch legislation regarding general
product safety, such as a ‘product recall’ or public warning, or, (ii) pursuant to any regulation,
inform an authorised authority with regard to the Product being unsafe.
11.4. The Purchaser is obliged to take Products that are brought into circulation and with which a
defect is associated, or in terms of which a defect is likely to manifest, from the market, within a
reasonable period to be determined by ERU. All costs related to this are accountable to the
Purchaser, unless the cause of the ‘product recall’, pursuant to the Agreement or law, is not
accountable or chargeable to the Purchaser.
11.5. In order to make a possible public warning or ‘product recall’ possible, the Purchaser will always
register the information relating to whom, when and in which quantities the Products were
(possibly) supplied.
11.6. The Purchaser must indemnify ERU against all costs and damages that may be incurred by ERU
on account of external parties filing a claim against ERU, with regard to any fact. The Purchaser
will acquire and maintain sufficient insurance coverage for this purpose. The insurance coverage
should entail the interests of ERU, in part. The Purchaser is obliged to compensate ERU for this
interest in the event of a disaster, and will, upon ERU’s first request, surrender its claims for
compensation from the insurer to ERU.
- Retention of ownership
12.1. The risk in respect of Products is transferred to the Purchaser at the moment of Delivery. The
Products will remain the property of ERU until the Purchaser has paid all amounts owed to ERU,
in full. Interest, costs, fines and compensation for damage resulting from a shortcoming in the
observance of an Agreement by the Purchaser, are included hereunder.
12.2. The Purchaser is obliged to make those Products subject to retention of ownership, with respect
to ERU, clearly identifiable. ERU will always be entitled, without any further authorisation from the
Purchaser’s side being required, to take back the Products that are subject to retention of
ownership, regardless of where these Products are located. The Purchaser will cooperate fully in
this regard. After recovery of the Products, the Purchaser will be credited for the market value of
the relevant Products, which will, in no case, exceed the value of the original purchase price,
reduced by the costs related to the recovery of the Products and damage incurred by ERU.
12.3. If the Purchaser sells and delivers the Products to a third party, the Purchaser will pledge its
claim(s) with regard to the delivery directly to ERU, as assurance for that owed by the Purchaser
to ERU.
12.4. As soon as ERU is no longer able to call on retention of ownership as a result of being unable to
trace the Products, or for any other reason, the Purchaser will pledge the newly formed Products
to ERU.
12.5. The Purchaser will, with regard to the Products that are still included under ownership of ERU,
conclude adequate insurance, for own account, and will issue a copy of the relevant insurance
policy upon ERU’s first request. The Purchaser is obliged to surrender all claims in connection
with the insurance intended in the first article, to ERU, upon the first request to do so.
12.6. If the laws of the country for which the Products are intended or in which the Purchaser is
situated, fail to acknowledge retention of ownership or impose specific requirements for the
validity of the establishment of such a right, the Purchaser will provide its cooperation in
complying with all requirements in order to establish retention of ownership in respect of the
Products, or a surety right with a similar elaboration as retention of ownership according to Dutch
law. When entering into an Agreement the Purchaser grants an irrevocable power of attorney to
ERU to take all measures necessary in this regard.
12.7. The Purchaser will notify ERU immediately, by telephone and in writing, in the event of loss of or damage to the Products during the period in which ERU holds retention of ownership or a similar
surety right in respect of the Products.
- Shortcoming on the part of the Purchaser
13.1. The Purchaser will be deemed to be in default by law and its (remaining) debt to ERU will
become claimable immediately if:
a. The Purchaser requests bankruptcy or suspension of payment, is declared bankrupt, or if
suspension of payment is granted to the Purchaser;
b. If a material part of the Purchaser’s assets is seized and said seizure is not lifted within fourteen
days after seizure;
c. The Purchaser does not comply with an obligation imposed on it pursuant to an Agreement,
without prejudice to those cases described in the Sales Conditions, Agreement, and that which
results from law, despite a written default notice in which the Purchaser was provided a
reasonable term for recovery;
d. The Purchaser is entirely or partially in default in respect of payment of an invoice to ERU within
the agreed term;
e. The Purchaser is disbanded, liquidated, its company is suspended or sold, whether directly or
indirectly, entirely or in part;
f. A direct or indirect change takes place in the right of control of (part of) the Purchaser’s company;
13.2. In the situations described under section 1 of Article 13, ERU will be entitled, without further
default notice, without legal intervention, without being liable for any compensation, and without
prejudice to its other contractual and statutory rights:
a. To suspend observance of its obligations towards the Purchaser, until the Purchaser has
observed all of its obligations towards ERU;
b. To terminate the Agreement entirely or in part, with immediate effect;
c. To demand full and immediate payment of any amount owed by the Purchaser to ERU;
d. To obtain sufficient surety from the Purchaser for timely observance of the payment obligations
before moving towards (further) execution of an Agreement;
e. To recover Products that were delivered but not yet paid for, entirely or in part, without any rights
attached in respect of the Purchaser, without any further liability or obligation for delivering
Products to the Purchaser (again).
13.3. If Article 12 or Article 13 of the Sales Conditions is applicable, the Purchaser will grant ERU
access to the location where the products are stored, in order to take possession of the Products
and to remove the Products. The Purchaser will remove all other merchandise located amongst
the Products, or connected to the Products in another way, in a timely fashion.
13.4. The Purchaser will also take all (other) measures and actions necessary in order to allow ERU to
exercise its rights under the Agreement and the Sales Conditions.
13.5. The Purchaser must indemnify ERU against all costs and damages that may be incurred by ERU
on account of external parties filing a claim against ERU, with regard to any fact, for which liability
towards the Purchaser is excluded in these general terms and conditions.
- Intellectual property rights
14.1. All intellectual property rights in connection with the Products are held by ERU or external rightful
claimants, and are not transferred to the Purchaser by means of any Agreement, not even in the
event that Products are designed, developed or compiled especially for the Purchaser. The
delivery of a Product cannot be considered an explicit or implicit license for use, duplication or
disclosure, unless determined differently in the Agreement.
14.2. All documents issued by ERU, such as Quotations, reports, recommendations, offers, etc., as
well as the rights thereon, remain the property of ERU, regardless of whether the Purchaser
incurred costs in order to manufacture the documents in question.
14.3. The Purchaser will notify ERU immediately, by telephone and in writing, in the event that a third
party violates ERU’s intellectual property rights. The Purchaser will support ERU in protecting its
intellectual property rights, and will provide the necessary information and assistance in this
regard.
14.4. The Purchaser will never change or remove any indication of the intellectual property rights held
by ERU and / or an external party.
14.5. If Products are produced and / or packaged upon indication of the Purchaser, the Purchaser will
indemnify and safeguard ERU from claims by external parties in connection with the involved
Products, including but not limited to claims pursuant to any violation of the intellectual property
rights of an external party.
14.6. If the Products are not produced and packaged upon indication from the Purchaser, the
Purchaser will only be allowed to sell and deliver the merchandise originating from ERU in the
original and undamaged packaging in which the merchandise was supplied.
14.7. If the Purchaser violates Article 14.4 and Article 14.6 of these conditions, the Purchaser will owe
a fine of € 25,000.00 per violation and per day on which the violation continues, without prejudice
to ERU’s right to full compensation and to ERU’s other rights.
- Confidentiality
15.1. The Purchaser is obliged to maintain confidentiality with regard to all that which is disclosed to it
in the context of the execution of the Agreement (even when information is not marked
specifically as confidential) and also to insist on this obligation to maintain confidentiality with its
employees and external parties enlisted by it. The Purchaser will not use the information which
was obtained, for personal use or for external parties.
- Transfer of rights and obligations
16.1. ERU is allowed to transfer the rights and obligations described in any Agreement with the
Purchaser, to external parties. ERU will notify the Purchaser if any of ERU’s obligations are
transferred. ERU will not be liable for compensation in this regard. The Purchaser is not entitled
to transfer its rights and obligations to external parties, in this regard, without prior written
approval from ERU.
- General stipulations
17.1. If a stipulation in the Sales Conditions or Agreement is invalid or declared invalid, the other
stipulations in the Sales Conditions and Agreement will remain in force. The Parties will replace
the invalid or unenforceable stipulation with a new stipulation, which is as close as possible to the
contents of the original stipulation.
17.2. ERU reserves the right to amend the Sales Conditions. The Purchaser is deemed to have
accepted the amended Sales Conditions, should it fail to object to the amendments, in writing,
within five working days after notification of the amendments by ERU.
17.3. ERU may have the Agreement executed by external parties, entirely or partially, if needed.
- Applicable law and court of law
18.1. The Sales Conditions, Quotations and Agreements will be governed by Dutch law, exclusively.
The Vienna Sales Convention and any other applicable international convention which may be
declared inapplicable, is declared inapplicable to the Sales Conditions and Agreements.
18.2. All disputes with regard to the Sales Conditions, Quotations and Agreements will be submitted
exclusively to the court with jurisdiction in Utrecht.