Art. 1 - Applicability
1.1 These general terms and conditions ("Terms and Conditions") of Grovema B.V. (hereinafter: "Grovema") apply to all legal relationships between Grovema and its counterparty ("Customer"), including all orders, proforma invoices, order confirmations and offers.
1.2 Deviation from these Terms and Conditions can only be agreed in individual cases and only in writing.
1.3 If a provision in these Terms and Conditions cannot be invoked due to violation of any legal provision, that provision shall have as much corresponding meaning as possible, so that it can be invoked; the other provisions of these Terms and Conditions shall remain in full force and effect.
1.4 The applicability of the Customer's General Terms and Conditions, by whatever name, is hereby expressly rejected.
Art. 2 - Conclusion of the Agreement
2.1 Every offer made by Grovema is without obligation and does not bind Grovema, unless expressly agreed otherwise in writing.
2.2 An agreement between Grovema and the Customer is concluded by the Customer accepting Grovema's proforma invoice by payment thereof.
2.3 The goods to be delivered by Grovema on the basis of the proforma invoice, as described by number, type designation in the proforma invoice, are referred to in these General Terms and Conditions as "Products".
2.4 The proforma invoice together with these Terms and Conditions constitutes the complete agreement between the parties ("Agreement").
2.5 Additions or amendments to the Agreement, including the applicable Terms and Conditions, shall only apply if and insofar as they have been agreed between the parties and recorded in writing.
2.6 In the event of a conflict between the underlying documents making up the Agreement, the following ranking rules will apply, whereby the document referred to earlier prevails over the document referred to later:
the proforma invoice
the text of these Terms and Conditions;
product description; and
2.7 For deliveries carried out by Grovema, for which no proforma invoice has been sent, the invoice is considered to be an order confirmation. For such deliveries, the invoice shall be deemed to reflect the agreement correctly and completely.
Art. 3 - Delivery terms
3.1 A delivery period stated by Grovema is based on the circumstances applicable to Grovema at the time the Agreement is concluded and, insofar as dependent on the performance of third parties, on the information provided to Grovema by those third parties. Grovema will comply with the delivery term as much as possible, but this is not a strict deadline.
3.2 Upon receipt of payment of the Purchase Price, Grovema will deliver the Products ex works/warehouse. The aforementioned method of delivery can only be deviated from if expressly agreed otherwise in writing.
3.3 If Grovema requires information and/or resources for the performance of the Agreement that must be provided by the Customer, or fulfilment of any other obligation imposed on the Customer by the Agreement, the delivery term will not commence until the day on which all the necessary information and/or resources are in Grovema's possession or the Customer has fulfilled said obligation towards Grovema.
3.4 Grovema is entitled to deliver sold Products in parts. If the Products are delivered in parts, Grovema is entitled to invoice each part separately.
3.5 In the event of late delivery, the client must give Grovema written notice of default, giving Grovema a reasonable period to still meet its obligations.
3.6 If the delivery term is exceeded, the Customer is not entitled to any compensation in this respect. Neither is the Customer entitled to dissolve the Agreement.
3.7 If the Customer does not purchase the Products, or if the Customer indicates that they will not purchase the Products, Grovema's obligation to deliver will immediately lapse and the Customer forfeits an immediately payable fine amounting to 10% of the invoice value of the Products in question, without prejudice to Grovema's right to additional compensation and compensation of costs of recovery.
Art. 4 - Delivery conditions
4.1 The method of shipment and the means of transport shall, unless otherwise agreed, be left to the choice of the Customer. The Customer shall insure transport at his own expense and risk.
The Products shall in any case be deemed to have been delivered after transfer to the carrier.
If the Customer does not accept the Products or does not accept them on time, the Customer shall be in default without notice of default being required. The Customer remains liable for all amounts due under the Agreement.
The Customer is responsible for the assembly, installation and commissioning of the Products.
Art. 5 - Prices
5.1 All prices are in Euros and are set out in the proforma invoice, excluding sales tax and other government charges.
5.2 Transport costs and government costs are for the account of the Customer.
5.3 Grovema has the right to pass on all price-increasing factors to the Customer that may arise as a direct or indirect result of, but are not limited to:
increase of cost prices, (factory) prices of suppliers and rates for materials;
increase in labour costs, social security charges and taxes;
increase in transport costs;
change in exchange rates if other than in euros.
5.4 Grovema will inform the Customer of any price increase in writing as soon as possible. If the Customer does not respond in writing within five days of this notification, the Customer tacitly agrees to the price increase.
Art 6. - Payment
6.1 Unless a different payment term has been agreed in writing, the Customer must pay Grovema's invoices in advance and in euros.
6.2 Grovema is entitled, in the event of another payment term, including during the execution of the Agreement, to require the Customer to make an advance payment or provide security in any other way in connection with the Agreement.
6.3 The Customer is not entitled to deduct any amount from the invoice amount or to set off the invoice amount against any counterclaim they may have against Grovema.
6.4 The Customer is not entitled to suspend any payment obligation towards Grovema.
6.5 If the Customer fails to pay any amount they owe within the term set for this purpose, the Customer shall be in default by operation of law without any further notice of default being required. From the due date of the invoice, the Customer shall also owe Dutch statutory commercial interest as referred to in Section 6:119a of the Dutch Civil Code.
6.6 Costs, both judicial and extrajudicial, incurred by Grovema in enforcing the Customer's obligations, are for the account of the Customer. For extrajudicial costs, a minimum of EUR 250 applies, without the need for evidence. The aforementioned costs are due from the moment Grovema notifies the Customer in writing to fulfil their obligations. If Grovema transfers its claim for collection, the amount of the claim will be increased by ten percent for administration costs.
6.7 All obligations of the Customer are immediately due and payable in the event that the Customer fails to fulfil his payment obligations on time.
Art. 7 - Retention of title
7.1 The ownership of the Products, notwithstanding the actual delivery, will not pass to the Customer until the they have paid in full all that they owe Grovema under the Agreement concluded between Grovema and the Customer or any other Agreement.
7.2 If and as long as Grovema is the owner of the Products, the Customer is not entitled to pledge or otherwise encumber them.
7.3 Without prejudice to the above provisions of this article, the Customer is permitted to sell the Products to third parties, but only in the context of their normal business operations.
7.4 Grovema is entitled to unimpeded access to its proprietary Products. The Customer will cooperate fully with Grovema in order to enable Grovema to exercise the retention of title referred to in paragraph 1 by taking back the Products.
7.5 If and as long as Grovema is the owner of the Products, the Customer will immediately inform Grovema if the Products are (or threaten to be) seized or if third parties otherwise claim (any part of) the Products. The Customer must also inform the third party of Grovema's (property) rights.
Art. 8 - Force majeure at Grovema
8.1 Force majeure on the part of Grovema is in any case understood to mean any circumstance beyond Grovema's control–even if foreseeable at the time the Agreement was concluded–that permanently or temporarily prevents the performance of the Agreement, as well as, insofar as not already included therein:
war, threat of war, terrorist attacks, civil war and insurrection;
strike, worker exclusion, transport difficulties, material shortages, fire and other serious operational disturbances;
measures taken by the government;
problems with energy supply;
import, export and production bans;
shortcomings of the companies, institutions, persons and/or objects engaged by Grovema for the performance of the Agreement.
8.2 If Grovema is prevented by force majeure from fulfilling its obligations towards the Customer within the delivery term, the delivery term will be extended by the duration that Grovema is directly or indirectly prevented from fulfilling its obligations due to force majeure.
8.3 Grovema will inform the Customer as soon as possible of any force majeure situation.
8.4 If Grovema has already partially fulfilled its obligations when force majeure occurs or can only partially fulfil its obligations, Grovema is entitled to invoice the delivered or deliverable part separately and the Customer is obliged to pay this invoice.
Art. 9 - Claims and warranty
9.1 Customer must examine the Products upon delivery. The Customer must check whether the goods delivered comply with the Agreement, i.e. in any case:
whether the correct Products have been delivered;
whether the delivered Products correspond in quantity and number with what has been
whether there is visible (transport) damage; and
whether the delivered Products meet the requirements that may be expected for normal use and/or trading purposes;
9.2 Complaints regarding defects in the Products must be made to Grovema in writing and in detail immediately after discovery, but at the latest within seven days of the delivery of the Product to the Customer.
9.3 If the term as stipulated in paragraph 2 is exceeded, any claim against Grovema in respect of the defects will lapse. Legal actions in this respect must be brought within six months after the timely complaint on pain of forfeiture.
9.6 Customer must report complaints about invoices in writing to Grovema within eight days of the invoice date.
9.8 Grovema is not responsible for any defects in the Products caused by:
failure to comply with requirements;
other than normal use;
normal wear and tear;
adjustments made by third parties;
a cause that is not related to the Product.
9.9 On condition that complaints are made in a timely manner, correctly and in accordance with the provisions of this article, Grovema will repair Products that have proved to be defective 1.) at Grovema's expense and/or 2.) redeliver the Product free of charge against the return of the Product that has proven to be defective and/or 3.) refund the price paid by the Customer to Grovema for the Product that has proved to be defective. By fulfilling the aforementioned performances, Grovema shall be fully discharged with regard to its (warranty) obligations.
Art. 10 - Suspension and dissolution
10.1 If the Customer fails to fulfil any obligation towards Grovema, or if Grovema can reasonably expect the Customer to fail to fulfil any obligation towards Grovema, Grovema has the right to suspend the (further) performance of its obligations under the Agreement by means of a written notification, without Grovema being obliged to pay any compensation, all this without prejudice to its other rights.
10.2 Without prejudice to the provisions of article 10.1, Grovema is in such cases entitled to dissolve the Agreement in whole or in part with immediate effect, without notice of default or judicial intervention, by means of a written notification, without Grovema being obliged to pay any compensation or guarantee, all this without prejudice to its other rights.
10.3 In the event that the Customer:
- has not paid the proforma invoice sent by Grovema within 14 days of receipt;
is declared bankrupt, is admitted to the Statutory Debt Rescheduling Scheme for Natural Persons, files for bankruptcy or suspension of payments or admission to the Statutory Debt Rescheduling Scheme for Natural Persons, proceeds to a cession of the estate, or has (part of) their assets seized;
is placed under guardianship or otherwise loses the power to dispose of their assets or parts thereof;
ceases or transfers their business or part thereof, including the transfer of their business to a company to be incorporated or already existing, or proceeds to change the objective of their business;
fails to fulfil, timely and/or properly fulfil any obligation incumbent upon him by virtue of the force of law or on the basis of the Agreement or Terms and Conditions;
Grovema is entitled to dissolve the Agreement with the Customer with immediate effect, in whole or in part, without notice of default or judicial intervention, by means of a written notification, all this without prejudice to its other rights.
Art. 11 - Liability and indemnity
11.1 Grovema is not liable for any damage suffered by the Customer or third parties, except insofar as this damage is the direct result of intent or recklessness.
11.2 If Grovema's liability under this Agreement should arise because of (i) Grovema's failure to perform its obligations under the Agreement, (ii) Grovema's breach of its warranty obligations, (iii) tort, or (iv) for any other reason, Grovema's liability is limited as provided for in this article.
11.3 Grovema can only be held liable for the replacement compensation, i.e. the compensation for the lagging performance. Grovema is not liable for any form of damage, including:
additional compensation in any form whatsoever;
damage due to loss of profit;
damage as a result of the provision of inadequate cooperation;
Customer information or materials; and
damage due to information or advice given by Grovema.
11.4 With due observance of article 11,2 the liability caused by shortcomings is limited to the corresponding invoice amount actually paid by the Customer.
11.5 Grovema's liability towards the Customer and/or third parties is in all cases limited to the amount or amounts to which Grovema's liability insurance gives entitlement.
11.6 The Customer's right to compensation only arises if the Customer has reported the damage to Grovema in writing as soon as reasonably possible after it has arisen in accordance with the provisions of these Terms and Conditions.
11.7 The Customer shall indemnify Grovema against all claims from third parties, directly or indirectly related to (the use of) the Products, and shall compensate Grovema for all damage Grovema suffers as a result of such claims.
11.8 Any claim for compensation for damage shall lapse three months after the event which caused the damage, unless judicial collection has commenced within the aforementioned period.
Art. 12 - Intellectual property rights
12.1 Under no circumstances does the Customer acquire any intellectual property rights based on the Agreement with respect to, but not limited to:
the proforma invoice issued by Grovema;
the designs, drawings, descriptions and models produced and/or provided by Grovema;
the calculations produced and/or provided by Grovema;
the software produced and/or provided by Grovema;
the tools manufactured and/or supplied by Grovema;
the information on which the manufacturing and construction methods and Products are based;
regardless of whether or not costs have been charged.
12.2 Except for the execution of the Agreement, the Customer is not permitted to copy, show to third parties, publish or use any Product or part thereof made available by Grovema without the express written consent of Grovema.
12.3 At Grovema's first request, the items referred to in paragraph 1 must be returned to Grovema.
12.4 The Customer shall immediately notify Grovema of any claim by a third party against or in respect of an infringement of intellectual property rights relating to the Products.
Art. 13 - Applicable law
13.1 The proforma invoice, these Terms and Conditions, the Agreement and the resulting legal relationship between Grovema and the Customer are governed exclusively by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
13.2 All disputes that may arise in connection with the Agreement and the resulting legal relationship between Grovema and the Customer must first be submitted to the Court of Arnhem (the Netherlands).