GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

These Terms and Conditions (July 2022 version) are applied by Van Dijk Postforming & Vlakverlijming B.V., established at Risseweg 19 in (6004) Weert, listed at the Chamber of Commerce under number 58717779. These Terms and Conditions are filed with the Chamber of Commerce under number 58717779 and can also be downloaded from the website www.vandijk-staircasesolutions.com and will be sent free of charge upon request.

1. Definitions

1.1 In these Terms and Conditions, the concepts set out below have the following meaning:

Buyer: the (potential) buyer of Products and client for Assembly Work, not being a consumer or end-user;
Assembly Work: work to be performed by Van Dijk by the order of the Buyer, where Van Dijk glues, mills or processes raw materials to be supplied wholly or partly by the Buyer;
Agreement: all agreements between the Buyer and Van Dijk, including all changes and additions to them;
Parties: The Buyer and Van Dijk;
Products: all products offered, sold and/or delivered by Van Dijk to the Buyer;
Software: the third-party software with which the Buyer can measure the Products;
Van Dijk: Van Dijk Postforming & Vlakverlijming B.V. Terms and Conditions: these general terms and conditions.

All definitions have the same meaning in singular and plural unless explicitly otherwise stipulated.

PART I: GENERAL PROVISIONS

2. Applicability

2.1 These Terms and Conditions are applicable to all quotations and offers by Van Dijk as well as to all Agreements and legal consequences arising from the above unless the Parties explicitly agree otherwise.
2.2 The applicability of (purchase) terms and conditions of the Buyer is explicitly excluded.
2.3 If any provision of these Terms and Conditions and/or an Agreement is invalid or is annulled, the other provisions of these Terms and Conditions and/or Agreement will remain fully effective and Van Dijk and the Buyer will enter into consultation in order to agree a new provision to replace the invalid or annulled provision, taking into account as much as possible the purpose and purport of the invalid or annulled provision.
2.4 Van Dijk is entitled at any time to adjust these Terms and Conditions. The most recent version of the Terms and Conditions will always be applicable.

3. Offers and orders

3.1 All offers and quotations by Van Dijk are without any obligation and not binding, unless explicitly indicated otherwise.
3.2 All offers and quotations remain valid for thirty (30) days unless explicitly stipulated otherwise.
3.3 The Buyer guarantees the accuracy and completeness of the information on which Van Dijk bases its offer or quotation.
3.4 Van Dijk cannot reasonably be bound by apparent mistakes and/or typing errors in offers, quotations and Agreements. If the price offered by Van Dijk is inaccurate and differs more than ten (10)% from the intended price, Van Dijk can dissolve the Agreement after which the amount already paid by the Buyer will be refunded by Van Dijk. In the event of dissolution of the Agreement pursuant to the above, Van Dijk will not be liable in any way for damages as a result of the dissolution.
3.5 Van Dijk will at any time be entitled to (partly) refuse an order without any explanation and without being in any way liable for any damages for instance if Van Dijk has an indication or suspects that the Buyer will not abide by its payment obligations and/or the Products are not available.
3.6 An Agreement is only concluded after Van Dijk has accepted an (online) order or Van Dijk has performed an Agreement by delivering Products or carrying out Assembly Work.

4. Performance

4.1 Van Dijk will try to the best of its ability to carry out the Agreement with due care, as the case may be, according to the arrangements and procedures determined in writing with the Buyer. All the activities of Van Dijk will be carried out on the basis of an obligation to perform to the best of its abilities, unless and insofar as Van Dijk specifically undertook a result in the written Agreement and the respective result has also been sufficiently clearly described.
4.2 Van Dijk reserves at any time the right to deploy third parties for the activities, if this is required for the proper performance of the activities. The applicability of Section 7:404 of the Dutch Civil Code is herein explicitly excluded.
4.3 Van Dijk is not liable for any damages caused by the third party.
4.4 The Buyer will at all times refrain from conduct or actions that damage or could damage the reputation of Van Dijk and/or the Products in any way.
4.5 Assembly Work will always be carried out at the Buyer’s expense and risk. The Buyer guarantees the correctness of the information on which Assembly Work is carried out and the quality of the raw materials. Van Dijk only guarantees that the Assembly Work will be performed properly, but expressly does not guarantee that certain qualities and/or functionalities will be achieved by the Assembly Work. The Buyer must itself test whether the products for which Assembly Work is performed meet the requirements that the Buyer sets itself, including testing the bonding.

5. Prices/Payments

5.1 Payments must be made without any suspension, discount or setoff for any reason whatsoever within the period stipulated by Van Dijk, failing which the Buyer will be in default by operation of law and therefore without any further notice of default being required. If the Buyer fails to fulfil its payment obligation, the Buyer will be immediately in default and will also owe interest of 1.25% per month on the outstanding amount, without any demand or notice of default to this end being required. The Buyer will then owe the costs to Van Dijk, both in and out of court, with regard to the collection of anything that the Buyer owes to Van Dijk. The extra-judicial collecting costs amount to 15% of the outstanding amount with a minimum of EUR 250 (two hundred and fifty euros).
5.2 Van Dijk is at all times entitled, regardless of any payment arrangements made previously, to demand full or partial payment or replacement security with regard to the delivery of Products at a moment and in a manner at the full discretion of Van Dijk, as well as to suspend all its obligations under the Agreement until it has received payment or replacement security, without being liable for any damages.
5.3 All prices of the Products are expressed in euros unless otherwise indicated. Unless otherwise agreed all prices are excluding VAT and other taxes and/or levies and are excluding transport costs, packaging costs, insurance costs as well as export and import duties. These costs and levies are at the expense of the Buyer.
5.4 Van Dijk reserves the right at all times to adjust the prices of the Products, for example, but not exclusively, as a result of increases in raw material prices, wage costs and other cost-increasing factors, such as, but not limited to, cost-increasing taxes, levies or import duties. Van Dijk is also entitled to do so after the Agreement has been concluded and even if it has been agreed that the price will be fixed. Van Dijk will inform the Buyer of this immediately.
5.5 Van Dijk is entitled to deduct any payments first from the (extra-judicial) costs and thereafter from the interest due and after this from the principal sum.
5.6 Any objections to invoices, specifications, descriptions and prices must be notified to Van Dijk in writing within ten (10) calendar days of receipt. If this is not possible due to any cause not attributable to the Buyer, the Buyer will in any case inform Van Dijk of its objections in writing within ten (10) calendar days after that cause has ceased and/or has been remedied and/or is known.

6. Delivery and transport

6.1 Unless explicitly otherwise agreed in writing, all delivery dates are only approximate. Van Dijk will do its best to deliver the Products on the agreed date, but will not be liable to the Buyer if the agreed term cannot be met. Van Dijk will never be liable for damages as a result of the delay.
6.2 If Van Dijk is unable to deliver the Products within thirty (30) days after the agreed delivery date, the Buyer is entitled, as its only remedy, to cancel the order. In order to be able to cancel an order, the Buyer must send a letter to this end to Van Dijk. The cancellation will only be valid if the written cancellation has been received by Van Dijk before Van Dijk sent the Products.
6.3 The Buyer is obliged to report defects or shortcomings in the Products to Van Dijk within forty-eight (48) hours after receipt of the Products, on pain of forfeiture of the right to complain about the external condition and quantity of the Products delivered. If no timely complaint is made, the Products shall be deemed to have been received in good condition and in the correct quantities. The burden of proof that a shortcoming is reported on time (within 48 hours) is on the Buyer.
6.4 The Buyer is obliged to receive the Products on normal working days.
6.5 After any fault has been discovered, the Buyer will be obliged to discontinue immediately the use, manufacture, processing or installation of the respective Products.
6.6 If not all the Products ordered are in stock, Van Dijk will be entitled to make part deliveries and to charge partial shipping. Van Dijk will inform the Buyer of this as soon as possible.
6.7 All Products are delivered ex works (according to the Incoterms 2020) at the premises of Van Dijk in Weert.
6.8 If the Buyer does not want to or cannot accept the delivery, the Buyer will immediately be in default. Van Dijk may then at its own discretion: (i) store the Products at the expense and risk of the Buyer or (ii) sell the Products at the best price reasonably to be obtained (after deduction of the reasonable costs for storage, insurance and sales costs), after which the Buyer will only receive the difference between the price obtained and the amount it paid to Van Dijk, or (iii) offer the Products again for delivery whereby the extra costs will be at the expense of the Buyer.
6.9 Upon delivery of the Products the Buyer must sign an acknowledgement of receipt. It is the responsibility of the Buyer himself to check whether the number of Products delivered corresponds with the number on the despatch note. If the number of Products on the despatch note differs from the number to be received or if the Products are damaged, this must be stated on the despatch note. If the Buyer does not make a note of this and/or Van Dijk does not receive a return receipt, the delivery will be considered complete and Van Dijk does not accept any liability for damage and/or an incorrect quantity of delivered Products.

7. Retention of title and security rights

7.1 The Products remain in the full ownership of Van Dijk until the Buyer has fulfilled in full all its obligations under the Agreement(s) concluded with Van Dijk.
7.2 The Buyer is not entitled to sell, hire out, dispose of, pledge or encumber in any other way or make available the Products delivered under retention of title before the full ownership of the Products has passed to the Buyer.
7.3 Until the moment of the transfer of title, the Buyer is obliged to take all measures reasonably possible in order to protect the Products against any damage. If third parties (threaten to) seize items covered by the retention of title or want to establish rights or have rights exercised on them, the Buyer will be obliged to inform Van Dijk of this immediately.
7.4 In the event that Van Dijk wants to exercise the ownership rights stipulated in this clause, the Buyer shall already at this stage allow Van Dijk or third parties to be indicated by it unconditionally and irrevocably to have access to all the places where the property of Van Dijk is located and take this property back.
7.5 If Van Dijk cannot exercise its ownership rights, the Buyer will be liable for the damage suffered by Van Dijk.

8. Warranty

8.1 Van Dijk warrants that the Products meet the usual requirements and standards that can be set for them at the time of delivery, whereby specifically for staircase products, the warranty only applies to use in homes and small retail premises. No warranty will be given for colour differences and staircase products used intensively in retail premises amongst other things. Van Dijk warrants that the decor layer of stair steps will not wear out under normal use for a period of twelve (12) years from the date of purchase. This warranty does not cover wear, scratches and/or damage resulting from knocks or accidents or improper use of the staircase. Furthermore, wear marks on the sides of stair steps are excluded from the warranty. In addition, the warranty only applies if the area of wear and tear at a specific location of a stair step is at least 1cm2 and the decor layer has been completely worn/gone away at that spot. The warranty will lapse if without the explicit written consent of Van Dijk, the Buyer itself has tried to remedy the alleged defect or has tried to have it remedied.
8.2 If the Buyer has sufficiently demonstrated to Van Dijk that the Products do not satisfy the requirements, Van Dijk shall have the option either to deliver new Products free of charge against the return of the Products that proved to be defective or to grant the Buyer a discount on the purchase price to be determined in mutual consultation By complying with one of the performances referred to above, Van Dijk shall be fully discharged in respect of its warranty obligations and Van Dijk shall not be obliged to pay any further damages or compensation.
8.3 If Van Dijk delivers Products to the Buyer which Van Dijk has obtained from its suppliers, Van Dijk shall never be obliged to any further warranty or liability with regard to the Buyer than Van Dijk can claim from its supplier.
8.4 The warranty given in this Clause only applies if the Buyer has fulfilled all its obligations to Van Dijk.
8.5 The replacement of the Products during the warranty period does not result in an extension of this warranty period. Van Dijk will charge the Buyer for any rectification or replacement including administrative, forwarding and transport costs other than pursuant to the warranty meant in this clause.
8.6 The warranty is not transferable.
8.7 The warranty does not apply to Assembly Work.
8.8 The warranty provided in this article does not apply in the event of normal wear and tear or improper use of the Products and/or repair by third parties without the consent of Van Dijk.

9. Liability

9.1 Van Dijk’s liability for indirect loss, including consequential loss, lost profits, missed savings, loss of files and/or data, claims on the Buyer by third parties and loss due to business stagnation and idle capacity, is at all times excluded.
9.2 The liability of Van Dijk due to an attributable failure in the performance of the Agreement is limited to renewed delivery or to compensation of direct loss up to a maximum of the amount of the price paid for the respective delivery of Products on the basis of the Agreement, unless the insurance pays a higher amount.
9.3 The condition for the existence of any right to compensation is always that the Buyer gives a written notice of default to Van Dijk and allows Van Dijk a reasonable period for fulfilment.
9.4 Van Dijk can only be liable if the Buyer informs Van Dijk in writing of the loss within thirty (30) days after the loss occurred.
9.5 Any legal claim for compensation for damage shall in any case become time-barred in one (1) year and shall expire at the latest two (2) years after the day on which the Buyer became aware or could reasonably have become aware of the event causing the loss.
9.6 Where employees, (non)subordinates and other auxiliary persons whom Van Dijk uses in the performance of the agreement are held liable, such persons may invoke any limitation and/or release of liability, including under these Conditions or any other legal and/or contractual provision which Van Dijk may rely on.

10. Force majeure

10.1 Van Dijk is not obliged to fulfil its obligations under the Agreement if it cannot fulfil them as a result of circumstances beyond its control (force majeure).
10.2 The term force majeure includes for instance, but is not limited to, non-delivery, incomplete and/or delayed delivery by suppliers, war and threat of war, terrorism, import and export prohibitions, epidemics, pandemics, traffic disruptions, loss or damage during transportation, fire, theft, disruptions in energy supply.

11. Premature termination

11.1 Van Dijk is entitled to suspend its obligations or (partly) to dissolve the Agreement or prematurely terminate it without any prior notice of default being required and without being liable for any damages or costs and without relinquishing any other right, if:

a) the Buyer has not fulfilled its (payment) obligations;
b) there is a (threat of) bankruptcy of the Buyer;
c) the Buyer has applied for a moratorium or intends to apply for it;
d) the Buyer can no longer have the free disposal of (liquid) resources, for instance due to a seizure;
e) the Buyer is being dissolved or intends to be dissolved;
f) the ownership of the Buyer is transferred to a third party or the third party has obtained any control;
g) the good name and reputation of Van Dijk is or threatens to be damaged by an act or omission on the part of the Buyer;
g) circumstances occurred which are of a nature such that fulfilment of the obligations cannot reasonably be required from Van Dijk.

11.2 If the cases meant above occur, the claims of Van Dijk on the Buyer will become immediately and fully due and payable.

12. Intellectual property rights and complaints

12.1 All designs, technical drawings, (source) codes, calculations, samples and the like with regard to the Products and Software and all (related) intellectual property rights remain the property of Van Dijk and/or its licensors at all times and may not be reproduced, modified or transferred or lent to third parties without the explicit prior written consent of Van Dijk.
12.2 Van Dijk and its licensors reserve all intellectual property rights on account of the Dutch Copyright Act (Auteurswet) or other legislation. Nothing under any Agreement can be considered as a transfer of intellectual property rights to the Buyer.
12.3 The Buyer guarantees that it will not infringe the intellectual property rights of Van Dijk, its suppliers and/or its licensors and will not challenge the validity of the intellectual property rights.
12.4 The Buyer shall not remove or render invisible all or part of any marks and/or identification marks put on the Products or their packaging.
12.5 Without the prior written consent of Van Dijk, the Buyer is not permitted to use any intellectual property right, including trade names, as part of its businessoperations, trade and/or brand names and/or domain names.
12.6 The Buyer shall never claim any intellectual property right regarding Van Dijk, the Products and/or the Software and shall not, without Van Dijk’s prior written consent, carry out any registration or other action anywhere in the world with regard to (the name of) Van Dijk, the Products and/or the Software.
12.7 If the Buyer establishes an infringement of Van Dijk’s intellectual property rights, it shall immediately inform Van Dijk of this. Van Dijk may then decide whether or not to take action against an (impending) infringement. In that case, the Buyer will be obliged to provide all the cooperation that can reasonably be expected of it. Without Van Dijk’s prior written consent, the Buyer is not allowed to take action in or out of court against any infringement.
12.8 The Buyer guarantees that upon reselling the Products it will strictly observe all relevant legislation and regulations. The Buyer will indemnify and compensate Van Dijk for any loss suffered by Van Dijk as a result of non-compliance with this provision.

13. Software

13.1 If the Buyer uses Software for the purpose of purchasing or reselling the Products, Van Dijk shall grant the Buyer a non-exclusive, royalty-free licence, that can be terminated at any time by Van Dijk, to use the Software to the extent it is strictly necessary for the purchase and/or (re)sale of the Products.
13.2 The Buyer accepts the Software in the condition it is in when made available to the Buyer (“as is, where is”) and accepts that the use of the Software may require the acceptance of additional conditions (of use) from third parties.
13.3 Van Dijk does not guarantee that the Software will operate without any disruption. In the event of a fault in the Software, the Buyer shall report this fault without delay to Van Dijk in writing in a clear, detailed and understandable manner. If the fault is due to an error in the Software, Van Dijk will make every effort to repair errors in the Software within a reasonable period of time. The Buyer will provide all possible required and reasonably to be expected cooperation to this end.
13.4 Subject to statutory and/or contractual exceptions, the Buyer is not permitted to modify the Software in whole or in part without the prior written consent of Van Dijk. Van Dijk is entitled to refuse such consent or attach conditions to it.

14. Privacy and personal data

14.1 Van Dijk and the Buyer will process personal data in accordance with the applicable (privacy) legislation including the General Data Protection Regulation.
14.2 The Buyer shall indemnify Van Dijk and compensate Van Dijk for fines and claims (for damages) by involved parties and third parties, insofar as this is the result of acts or omissions of the Buyer.

15. Miscellaneous

15.1 The Buyer is not entitled without the prior written consent of Van Dijk to transfer any right arising from the Agreement to any third parties. The restriction on transferability has, apart from legal effect under contract law, also legal effect under property law as meant in Section 3:83 subsection 2 of the Dutch Civil Code. The Buyer grants in advance the right to Van Dijk to transfer the rights arising from the Agreement in whole or in part to any third parties.

16. Applicable law and disputes

16.1 These Terms and Conditions, Agreements and all legal relationships between Van Dijk and the Buyer are governed by Dutch law.
16.2 All disputes with Buyers arising from Agreements or any other legal relationship shall be submitted to the competent court of the District Court of Oost-Brabant, located in ‘s-Hertogenbosch.
16.3 The applicability of the Vienna Sales Convention is explicitly excluded.

PART II: ADDITIONAL PROVISIONS WITH REGARD TO WHITE LABEL SALES

The provisions of Part II apply in addition to the provisions of Part I in case of white label sales.

17. White label sales

17.1 If the parties have agreed so in writing, the Buyer is entitled to sell the Products on the basis of white label sales, i.e. the sale of the Product by the Buyer to customers of the Buyer without using the (trade) name, logos, house style and trademarks of Van Dijk, but using the (trade) name, logos, house style and trademark rights of the Buyer.
17.2 The Buyer is obliged to declare its own general terms and conditions and privacy statement applicable to the business relationship between the Buyer and its customers. The Buyer itself must also provide the consumer or end-user with the measuring instructions for measuring the Products using the Software. Van Dijk is not part of the business relationship between the Buyer and its customers in the case of white label sales and Van Dijk does not bear any responsibility towards the consumer or end user in that context, including explicitly the case of incorrect measurement results if the measuring instructions were not (correctly) followed by the consumer or end user.

18. Delivery and transport

18.1 If agreed, Van Dijk will take care of the delivery of the Product to the consumer or end user at the location designated by the consumer or end user, on the instructions of and in the name of the Buyer and all this at the expense and risk of the Buyer.
18.2 The Buyer guarantees the correctness of its customers’ (address) details and must inform Van Dijk immediately of any changes. Van Dijk is not responsible for any delay in delivery caused by the chosen transport companies or intermediaries, or the failure of the Product to arrive at the Buyer’s customer due to errors made by the Buyer or its customers when entering the address details.
18.3 The delivery period commences as soon as Van Dijk has received from the Buyer all the information necessary for the delivery, and all other conditions necessary for the performance of the agreement have been fulfilled. Unless explicitly otherwise agreed in writing, all delivery dates are only approximate. Van Dijk will do its best to deliver the Product on the agreed date, but will not be liable to the Buyer, or to its customers if the agreed term cannot be met. Van Dijk will never be liable for damages as a result of the delay.
18.4 Unless agreed otherwise in writing, Van Dijk will be entitled to deliver the Product in various phases.
18.5 If the Buyer’s customer does not want to or cannot accept the delivery, this will be at the expense and risk of the Buyer. Van Dijk may then at its own discretion: (i) store the Products at the expense and risk of the Buyer or (ii) sell the Products at the best price reasonably to be obtained (after deduction of the reasonable costs for storage, insurance and sales costs), after which the Buyer will only receive the difference between the price obtained and the amount it paid to Van Dijk, or (iii) offer the Products again for delivery to the consumer or end user, where the extra costs will be at the expense of the Buyer.

19. Liability

19.1 Notwithstanding the provisions of clause 9, in the event of white label sales, Van Dijk shall never be liable for any damage of a customer of the Buyer arising from or associated with the Buyer’s white label sales of the Product to the respective consumer or end user.
19.2 The Buyer shall indemnify Van Dijk and compensate Van Dijk for all claims by customers of the Buyer arising from or associated with the white label sale of the Product to relevant customers of the Buyer.

20. Intellectual property rights

20.1 If the Buyer makes photographs, logos, designs, trademark rights, trade names and or other intellectual property rights or works available to Van Dijk for the purpose of white label sales, the Buyer guarantees that there will be no infringement of (intellectual property) rights of third parties. The Buyer indemnifies Van Dijk and fully compensates Van Dijk for all claims and costs, including all legal costs, if Van Dijk is faced with an (alleged) claim.