Terms and Conditions
General terms and conditions of sale and delivery Coltrading
Art. 1. – Definitions
1. Coltrading means the private company with limited liability CTE-group and Technisch Handelsbureau Col Trading B.V. and any third parties it engages.
2. Customer means the natural person or legal person who wants to enter into or has entered into an agreement with Coltrading.
3. These general terms and conditions apply to all offers, sales and supplies of goods and services made by Coltrading. If Coltrading does not demand or has not continuously demanded strict compliance with these terms and conditions, (implicit) relinquishment of rights cannot be derived from this. Derogating provisions can only be agreed in writing and in that case, only for each individual order.
Art. 2. – Offers/prices
1. All offers made by Coltrading are without obligation, also if the offer includes a reply period. The amounts stated are given in euros unless otherwise indicated.
2. All prices stated are exclusive of VAT and additional costs such as transport, quality inspection and any levies, unless explicitly agreed otherwise.
3. If the customer is acting as agent, authorized representative or as an intermediary on behalf of a third party which shall actually purchase the products or services from Coltrading, the customer jointly and severally guarantees the performance of the agreement.
4. All prices charged by Coltrading can be indexed on an annual basis. Coltrading is furthermore authorized to change every price equitably if its costs, such as but not limited to costs of personnel, raw materials or transport, have increased to a significant degree since the price was set.
5. If the customer cancels an agreement which has been entered into between it and Coltrading, customer immediately owes a cancellation compensation of 25% of the agreed sale price exclusive of VAT. This cancellation compensation is not subject to judicial mitigation and is incurred in addition to the right of Coltrading to claim its actual loss, such as the agreed sale price.
6. If Coltrading provides customer with a model, (test) object, (colour) sample, image, report, brochure or similar item as an indication of the goods to be supplied in fact, this is assumed to be provided only as a rough indication, unless Coltrading explicit indicates that a particular property of such an item may be considered as guaranteed. Coltrading is not obliged to provide customer with test reports or test data of its products, unless Coltrading has already (arranged to have) drawn up such information on its own initiative and customer requests this a reasonable time before the delivery of the goods concerned. Coltrading is authorized to charge the costs for the items and information referred to in this article.
Art. 3. – Delivery
1. Goods are delivered from the company location of Coltrading in the Netherlands (ex works within the meaning of the Incoterms 2020), unless otherwise agreed. The risk of the products concerned passes to the customer upon delivery. Services are performed, if no place is agreed, at a location to be chosen by Coltrading.
2. Customer and Coltrading determine by consultation one or more dates and/or (execution) terms for the delivery of goods or performance of services. Coltrading seeks to adhere to these dates and/or (execution) terms as much as possible, but they are never final, nor is Coltrading liable for any loss of the customer if the agreement is performed on a different date and/or (execution) term than agreed. Should customer nevertheless express complaints about the dates and/or (execution) terms, the time limit for lodging a complaint referred to in article 7 applies in full force. If no end date is agreed for the supply of services, the agreement is deemed to have been entered into for an unspecified time.
3. If the agreed method of delivery of goods or the performance of services by Coltrading requires access to the (company) location(s) of the customer, customer ensures a safe (working) environment where, if necessary, items can be used free of charge which are reasonably required for the performance of the agreement.
4. If customer does not purchase the products on the agreed dates or does not give Coltrading the opportunity to provide its services on the agreed dates, even if purchase is hindered by circumstances which are within the control of customer, all ensuing consequences are entirely at the risk of customer. This explicitly includes additional accommodation, transport and/or storage costs.
5. If Coltrading has made available (or has caused to be made available by a third party, through payment of a deposit or guarantee deposit or otherwise) materials for the packaging or transport which are suitable for use more than one time (for example, (Euro) pallets, crates, containers, etc.), the customer is obliged to return these goods at his own cost to an address specified by Coltrading, failing which the customer owes Coltrading compensation for the loss.
6. Coltrading is authorized to supply and invoice goods or services purchased by the customer in (chronological) parts. Coltrading is entitled to suspend the performance of a part until customer has inspected the previous part and approved it in writing. Faults identified by the customer in a partial delivery or partial performance do not entitle customer to suspend the payments or acceptance of other parts.
Art. 4. – Payment
1. Coltrading is entitled at any time to require a prepayment from customer and can suspend the delivery in all circumstances until the relevant prepayment has been received in the specified bank account of Coltrading.
2. Invoices must be paid within thirty days of the invoice date. Customer waives every right to settlement or suspension of his obligation to pay to (or in connection with any (alleged) claim of customer against) Coltrading. The customer has no right to suspension.
3. If customer does not fulfil his obligation to pay in time, he is in default by operation of law. The commencement of the default of customer makes any other claims of Coltrading against customer immediately due and payable. After the commencement of the default, Coltrading is authorized to charge 1.5% interest per month on the outstanding amount from the day the default of the customer commences until the date on which payment is made in full. A part of a month shall hereby be considered as a whole month each time.
4. If customer does not fulfil his obligation to pay in time, customer incurs an immediately due and payable penalty of 15% of the relevant invoice amount. This penalty is not subject to judicial mitigation and applies in addition to the right of Coltrading to claim its loss actually suffered from customer.
5. The customer is obliged to pay in full all (extra) judicial costs of Coltrading which arise from customers failure to perform the agreement; this explicitly includes lawyers fees.
6. If prejudgment garnishment or attachment in execution chargeable to customer is imposed on Coltrading, Coltrading is entitled to charge customer 250 exclusive of VAT as immediately due and payable penalty for the costs of the handling of the attachment.
7. The obligations of the customer become immediately due and payable if customer is declared insolvent or applies for a moratorium, or (if customer is a natural person) is admitted to the WSNP (Wet Schuldsanering Natuurlijke Personen or ‘Debt Repayment Natural Persons Act’), or loses the power of disposition of its assets or parts thereof through attachment, a guardianship order or otherwise, unless the guardian or administrator recognizes the obligations arising under the agreement as bankruptcy estate.
8. The customer is not permitted to create security interests in any (partial) claim(s) against Coltrading, transfer them to third parties or encumber them in a similar way. The purpose of this provision is property-law effect within the meaning of Article 3:83, paragraph 2, Dutch Civil Code.
9. In accordance with the provisions of Article 2:346, paragraph 1 under e Dutch Civil Code, Coltrading is authorized to request an inquiry with respect to customer (and the group of companies to which it belongs) at all times.
Art. 5. – Termination and force majeure
1. Coltrading is authorized to terminate the agreement with customer (early) without stating reasons, and without being liable for any damage suffered by customer as a result thereof. Part performances already delivered shall be paid by customer to Coltrading in proportion to the extent to which the performance has been implemented with respect to the entire performance.
2. In the performance of the agreement, the delivery or supply dates and/or (execution) terms (both non final as referred to in article 3 paragraph 2 and final, as possibly agreed to outside this article) are extended by the period during which Coltrading is prevented by force majeure to fulfil its obligations.
3. There is a situation of force majeure on the part of Coltrading, if Coltrading, after entering into the agreement, is prevented from fulfilling its (preparatory) obligations under the agreement as a result of, for example, (civil) war, danger of war, terrorism, riot, wilful damage, vandalism, fire, water damage, flood, industrial action, factory sit-in, epidemics, import and export impediments, government measures, machinery defects, physical or mental illness of persons important to the agreement, data and mains services supply interruptions, all this in the broadest sense and both in the business of Coltrading and of third parties from which Coltrading must acquire the necessary goods fully or partially, as well as for the storage or during transport, by the company itself or otherwise, and furthermore due to all other causes that arise through no fault of Coltrading or beyond its control.
4. Coltrading is also authorized to plead force majeure if the circumstance which prevents the (further) performance starts after Coltrading should have performed its obligations or while the agreement has already been partially performed.
5. If, due to force majeure, the delivery is delayed by more than two months, both Coltrading and the customer are authorized to consider the agreement as terminated. In that case, Coltrading is entitled to compensation of the performance it has already delivered and costs it has already incurred.
Art. 6. – Retention of title
1. The ownership of the goods or activities delivered by Coltrading does not pass to the customer until Coltrading has received from customer the full performance with respect to the delivered goods or activities, and also all other performances which Coltrading can claim from the customer under other agreements.
2. In the event that customer does not fulfil its obligations, or that Coltrading has a reasonable fear that customer shall not fulfil them, Coltrading is authorized to take back from the customer the goods delivered under retention of title, or from third parties who are keeping these goods for the customer. Customer gives Coltrading permission in advance to enter, for that purpose, its (company) location(s) and all locations of third parties which keep goods for the customer. Coltrading is likewise free to enter the above locations in order to check for itself whether goods of Coltrading are still present. All (transport and storage) costs involved with such a seizure are at the expense of the customer.
3. Customer is not authorized to sell to third parties or encumber or otherwise dispose of products of which Coltrading holds the retention rights unless this takes place in the normal operation of the business and the invoices which relate to the products in question (and any interest and cost obligations arising therefrom) have been paid in full.
4. Customer undertakes to insure and keep insured the items in which Coltrading has retained the title. Customer shall keep the items of Coltrading physically separate from other items and mark them as the property of Coltrading. Should customer not have done this, there is evidentiary presumption between parties that quantities of items which are present at the customers location of the same type belong to Coltrading.
5. If third parties seize items in which Coltrading has retained the title or if the customer loses the power of disposition of the goods in a different way than those stated in paragraph 3, customer is obliged to inform Coltrading about this matter immediately.
6. Customer shall, on first demand of Coltrading, pledge to Coltrading the claims which customer has against its client(s) and insurer(s) with respect to the goods delivered under retention of title in accordance with 3:239 Dutch Civil Code.
7. Customer is obliged to cooperate with the provisions of paragraphs 2, 4, 5 and 6 of this article subject to a penalty of 20% of the value of the goods in question for every day (or part of that day) that customer does not comply with these provisions. This penalty is not subject to judicial mitigation and applies in addition to the right of Coltrading to claim its loss actually suffered from customer.
Art. 7. – Guarantees and complaints
1. Coltrading guarantees that its goods or services to customer are suitable for normal use and satisfy the current legal requirements in the Netherlands during the normal service life, on condition that the customer has used the goods or services in accordance with the manual and/or other instructions supplied.
2. Customer is obliged to investigate or arrange the investigation of the performance delivered after delivery or supply for quality, quantity, operation, other important characteristics, etc.
a. Complaints relating to each visible or observable fault with respect to the performance of Coltrading, such as the appearance, number, size or weight of the product, must be made known by customer to Coltrading within no more than eight days of delivery.
b. Complaints relating to each non-visible or observable fault with respect to the performance of Coltrading must be made known by customer to Coltrading within no more than eight days of discovery.
If customer does not report a complaint in time as specified in this article, any right of customer against Coltrading concerning the alleged fault in the performance lapses.
3. Each form of guarantee for a product lapses if a fault arises as a (direct or indirect) consequence of injudicious or improper use thereof, use after the expiry date, incorrect storage or incorrect maintenance. This also applies if the customer or third parties have made or have tried to make changes to the product without the written permission of Coltrading, other items were attached to the product which should not be attached to it or the product was adapted or processed in any way other than the prescribed way.
4. If it is established that a product supplied by Coltrading is faulty and a timely complaint in accordance with the provisions of this article has been made, Coltrading shall only be obliged to replace or repair the faulty product, at its discretion, after it has been returned to Coltrading by the customer. If a product delivered by Coltrading was however produced by a third party and supplied by Coltrading to customer without substantive change, the guarantee which Coltrading provides for that product is limited to the guarantee provided by the manufacturer of that product.
5. If it is established that a product supplied by Coltrading is not faulty and/or a complaint was not made in that respect in time in accordance with the provisions of this article, customer is obliged to reimburse Coltrading for all costs which Coltrading incurred in the handling of the alleged fault.
6. Customer cannot rely on article 6:228 and 6:230 paragraph 1 Dutch Civil Code.
Art. 8. – Liability
1. If Coltrading should be liable on whatever basis, this liability is limited to the terms of this provision.
2. Any liability of Coltrading for indirect damage of the customer (and/or of third parties), including consequential damage, loss of profits, missed savings and damage due to (business) interruption, is excluded.
3. Coltrading is only liable for direct damage of customer (and only if the fault was reported in time in accordance with article 7). This liability never amounts to more than the amount paid by the insurer of Coltrading where applicable. If the insurance, for whatever reason, does not make a payment or the insurance is absent in certain cases, the compensation amounts to no more than the invoice value (exclusive of VAT) of the (part) performance which caused the damage, taking into account that the liability of Coltrading in such a case never amounts to more than 5,000.
4. In addition to the above provisions, for an agreement with a term longer than six months, the liability is limited further to the amount charged in the last six months (exclusive of VAT).
5. Direct damage is understood to mean exclusively:
a. the reasonable costs for establishing the cause and scope of the damage, in so far as the establishment relates to damage within the meaning of these terms and conditions;
b. any reasonable costs incurred to make the faulty product of Coltrading conform with the agreement, unless the faultiness cannot be attributed to Coltrading;
c. reasonable costs incurred to prevent or limit damage, in so far as customer demonstrates that these costs resulted in the limitation of direct damage within the meaning of these general terms and conditions.
6. Customer cannot rely on article 7:404 and 7:407 paragraph 2 Dutch Civil Code. Customer shall furthermore indemnify Coltrading against all claims/actions (for liability) which are alleged by third parties against Coltrading. Customer shall provide Coltrading with all (written) information requested by Coltrading about the (business conducted with the) third party.
7. Coltrading is not liable for damage of whatever nature which has arisen because Coltrading has based itself on incorrect and/or incomplete information provided by customer.
8. The limitations of the liability for direct damage included in these terms and conditions do not apply if the damage can be attributed to intentional act or gross negligence of Coltrading or its employees.
Art. 9. – Intellectual property and copyright
1. Notwithstanding the other provisions of these general terms and conditions, Coltrading reserves the rights and powers to which it is entitled pursuant to the Dutch Copyright Act and all other intellectual laws and regulations. Permission to use the intellectual property of Coltrading may not be concluded from the agreement between Coltrading and customer, unless this has been stated explicitly.
2. All documents provided by Coltrading, such as reports, advice, agreements, designs, sketches, drawings, software, etc., and items are intended exclusively to be used by customer, and without prior written permission from Coltrading may not be reproduced, published or made known to third parties by customer, unless otherwise implied by the nature of the documents. Customer is not permitted to register itself or a third party as right-holder or owner of any intellectual property of Coltrading.
3. Coltrading reserves the right to use knowledge obtained by the performance of activities for other purposes, in so far as no confidential information is brought to the knowledge of third parties.
4. In the event customer breaches the provisions of paragraphs 1 and 2 of this article and the provisions of article 10 paragraphs 1 and 2, customer incurs a penalty of 1,000 per breach and 500 per (part of) day that the breach continues after a cease and desist-warning. This penalty is not subject to judicial mitigation and applies in addition to the right of Coltrading to claim her actual losses from customer.
Art. 10. – Confidentiality
1. Customer is obliged to keep secret from third parties all information which it obtains intentionally or unintentionally as a result of the (trading) relationship with Coltrading and of which it knows or should presume that Coltrading could have an interest in its confidentiality, including but not limited to all possible financial information and all forms of intellectual property.
2. If customer engages third parties which could possibly become aware of the information referred to in paragraph 1, customer shall impose a contractual confidentiality on these third parties which is at least equal to that agreed here.
3. The obligation of confidentiality does not apply if a party is obliged to disclose information as a result of a statutory provision or a non-appealable court ruling.
Art. 11. – Concluding provisions
1. All agreements to which these provisions apply are governed by Dutch law. The applicability of the Vienna Convention (CISG) is precluded. A dispute between parties shall be submitted exclusively to the competent court in the Dutch place of business of Coltrading. Only Coltrading also has the right to make an application to the court which is competent in accordance with the statutory provisions.
2. Notwithstanding the provisions of paragraph 1 of this article, customer and Coltrading agree, exclusively if Coltrading desires this, to submit a dispute to an arbitration body to be chosen by Coltrading.
3. In the event of lack of clarity about the interpretation or meaning of these terms and conditions, the Dutch text prevails over any other language into which these terms and conditions have been translated.
4. If and to the extent that these general terms and conditions are contrary to any mandatory provision of national or international legislation, only this provision shall be considered as not agreed and these general terms and conditions shall continue to bind parties for the rest. In such a case Parties commit to agree by consultation on a new provision which approaches as much as possible the meaning intended by parties in the provision which proved to be non-binding.