GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF SALE RHINOMAN EUROPE B.V.
(version 23/09/2024)
Article 1 General
1.1 Unless expressly agreed otherwise in writing, these Terms and Conditions shall apply to every agreement between Rhinoman Europe B.V., further referred to as “Rhinoman”, and the Purchaser. Departures from these Terms and Conditions must be expressly agreed in writing.
1.2 The term “Purchaser” shall be understood in these Terms and Conditions to mean every legal or natural person or organization which (or who) concludes or wishes to conclude an agreement with Rhinoman. The term “agreement” shall be understood to include every legal relationship between Rhinoman and the Purchaser, including without limitation any legal act for the preparation or performance of the agreement. The term “products” shall be understood to mean all goods which are the subject of an agreement.
1.3 The applicability of general terms and conditions used by the Purchaser is expressly ruled out.
1.4 The Dutch text of these Terms and Conditions shall prevail over all translations in the event of a conflict.
Article 2 Offers and agreements
2.1 All offers from Rhinoman shall be without obligation. All offers from Rhinoman shall furthermore be revocable, regardless of whether they contain a period for acceptance.
2.2 Samples and models shown or provided shall serve as indications only, without the products having to comply with those samples and models.
2.3 An Agreement with a Purchaser shall exist only if confirmed by Rhinoman in writing or Rhinoman has started its performance under any purchase order from the Purchaser.
2.4 Rhinoman shall be entitled at all times, before starting or continuing its performance, to require security from the Purchaser for the fulfilment of both its payment and other obligations. The security shall be provided in the manner stipulated by Rhinoman.
2.5 If the Purchaser has not provided security within 14 days of a request to that effect, in the manner stipulated by Rhinoman, all amounts owed by the Purchaser to Rhinoman shall be due and payable in full and immediately, without prior notice of default being required.
Article 3 Delivery
3.1 The delivery period stated by Rhinoman shall not be fatal. The mere expiry of the delivery period shall not constitute a breach of contract. Rhinoman shall comply with the delivery period as far as possible. Exceeding the delivery period shall not give the Purchaser any right to compensation.
3.2 If a delivery period has not been expressly agreed upon, a reasonable delivery period shall apply, beginning from the time that the agreement is formed.
3.3 Rhinoman shall have the right at all times to deliver in consignments, and shall always be entitled to invoice for such partial performances separately.
3.4 Delivery shall take place ex works, at Rhinoman’s premises or any other location designated by Rhinoman, in accordance with the definitions of the latest version of the Incoterms of the International Chamber of Commerce. In the event of a conflict between these Terms and Conditions and the Incoterms, the Terms and Conditions shall prevail.
3.5 If the Purchaser does not take up or demand, as the case may be, the products delivered, or does not do so in time and/or properly, it shall be in default without notice of default being required, and Rhinoman shall in any case be entitled to charge the agreed price. Rhinoman shall then also be entitled, without prejudice to its other rights under the law, to store the products at the Purchaser’s expense and risk; all costs arising therefrom, including increases in duties, levies, premiums and the suchlike, shall be payable by the Purchaser.
3.6 If a situation provided for in Article 3.5 arises, and, despite being given a reasonable time by Rhinoman, the Purchaser still fails later to take up the products or fails to do so in time and/or properly, Rhinoman shall be released from all its obligations.
Article 4 Prices
4.1 Unless agreed otherwise in writing, all prices shall be ex-works. All prices shall be in Euro and shall be exclusive of VAT, the costs of transporting and/or dispatching the products, other costs incurred in connection with delivery, government levies and/or taxes payable, unless otherwise agreed in writing.
4.2 Rhinoman shall be entitled at all times to change its prices, on condition that prices already agreed may be changed only if the cost-determining factors on which the prices are based have changed since the agreement was concluded and prior to delivery.
Article 5 Transport insurance
5.1 The insurance costs shall be payable by Rhinoman only if provided for by the definitions of an Incoterm declared applicable. In that case, however, Rhinoman shall not be obliged to do any more with regard to the insurance to be taken out, than to take out insurance up to values equivalent to the net invoice sum.
5.2 The insurance to be taken out shall insure against normal business risk only, and therefore not against exceptional risks and/or acts of war. The liability of Rhinoman shall not, in any case, extend beyond the cover provided by the insurance. If Rhinoman should nonetheless be liable beyond the cover provided by such insurance, the provisions of Article 7 of these Terms and Conditions shall be fully applicable.
5.3 In the event of damage or loss in transit, Rhinoman shall submit a claim to the insurer. After Rhinoman has received the payment from the insurer, it shall pay it to the Purchaser.
Article 6 Returns, complaints and guarantee
6.1 Without prior written consent on its part, Rhinoman shall not be obliged to accept returns from the Purchaser and returns shall be at the Purchaser’s expense and risk.
6.2 The Purchaser shall be obliged to inspect the products immediately upon delivery. Complaints regarding the products must be made in writing within 7 (seven) days of receipt of the products delivered, stating the reasons for the complaint and if possible, accompanied by proof, failing which the Purchaser shall be deemed to have accepted the (quantity and quality of the) products.
6.3 Complaints about products which have already been treated and/or processed in any way after delivery shall not be accepted.
6.4 Rhinoman only guarantees Purchaser, subject to the provisions of Article 6.6, that upon delivery, the delivered products:
- are free of visible and invisible defects due to faulty material or workmanship;
- correspond in terms of type, number, size, weight, color and quality to what is expressly stipulated in writing in the agreement;
- are suitable for use for the purpose for which the products in question were manufactured.
6.5 Rhinoman's guarantee obligations on products supplied by third parties will never extend beyond the guarantee provided to Rhinoman by these third parties.
6.6 Rhinoman's liability under the guarantee given in Article 6.4 is excluded if:
- the defect or shortcoming concerns minor deviations which are considered acceptable in trade or are technically unavoidable, including without limitation deviations in size, number or weight of no more than 5%;
- the delivered products are not suitable for a use intended by Purchaser that does not correspond to the use referred to in Article 6.4;
- Purchaser is in default of performing any obligation arising from any agreement;
- the defect or shortcoming is the result of force majeure on the part of Rhinoman.
6.7 If a complaint is submitted in time and in accordance with these Terms and Conditions, and Rhinoman is reasonably of the opinion that it has been sufficiently demonstrated that the products do not correspond to the agreement , Rhinoman shall, at its sole discretion, replace such products with replacement products free of defect and corresponding to the agreement or refund the purchase price of the products concerned. By performing in one of the stated ways, Rhinoman shall have discharged its guarantee obligations fully and shall not be obliged to pay any further compensation. Replaced products shall become the property of Rhinoman.
6.8 Any claim under this Article shall in any case lapse once a year has passed since receipt of the products delivered.
Article 7 Liability
7.1 Rhinoman shall be liable only for direct damage resulting from an intentional act or wilful recklessness – proven by the Purchaser – on the part of Rhinoman during the fulfilment of the obligations arising from the agreement concluded between Rhinoman and the Purchaser.
7.2 Rhinoman shall never be liable for:
- indirect damages of any kind, including consequential loss and/or
- non-material loss
suffered by the Purchaser or by a third party as a result of Rhinoman, or a person for whom it is liable under the law, failing in the performance of the agreement.
7.3 The Purchaser shall in any case be liable for damage – of whatever nature and in whatever form – which arises after the products delivered by Rhinoman have been treated and/or processed.
7.4 The liability of Rhinoman shall be limited at all times per event, with a series of connected events counting as one event, to the amount that is paid out under Rhinoman’s business liability insurance policy in the case concerned or to the net sale price of the products delivered by Rhinoman if Rhinoman’s business liability insurance policy does not provide coverage in the case concerned.
7.5 The Purchaser must compensate Rhinoman for, and indemnify it against, all third-party claims, for whatever reason, in connection with compensation for damage, costs, interest and/or losses which arise from products delivered by the Purchaser. If Rhinoman should nonetheless be held liable, the provisions in the previous paragraphs of this Article shall be fully applicable. Rhinoman shall then have a right of recourse against the Purchaser for the entire amount paid by it in connection with compensation and costs.
7.6 The provisions of this Article shall also apply in favour of all legal or natural persons used by Rhinoman to perform the agreement.
7.7 Any claim for damages shall in any case lapse once a year has passed since receipt of the products delivered.
Article 8 Force majeure (non-attributable non-performance)
8.1 In the event that, due to force majeure, Rhinoman is prevented from performing the agreement, or performance becomes more costly, Rhinoman shall have the right to suspend the agreement for the duration of the force majeure situation, or to dissolve the agreement in full or in part, without Rhinoman being obliged to pay any compensation.
8.2 The term “force majeure” shall be understood to mean any circumstance, both foreseen and unforeseen, as a result of which the Purchaser can no longer reasonably require performance of the agreement. Such circumstances shall in any case be understood to include strike, excessive staff sickness, interruptions in production, transport problems, fire and other business disruptions, import, export and transportation bans, non-, late or defective delivery by Rhinoman’s suppliers, and other events beyond the control of Rhinoman, such as flood, storm, natural and/or nuclear disasters, war and/or threat of war, epidemic, pandemic and terroristic attacks, but also changes in legislation and/or government measures.
Article 9 Payment
9.1 Unless agreed otherwise in writing, payment must be made within 30 days of invoicing, without delay, discount and/or set off, in the currency specified by Rhinoman and in the manner stated by Rhinoman.
9.2 If payment in full is not made within the fatal payment period stated in Article 9.1, the Purchaser shall be in default by operation of law and shall be liable to pay interest at the rate of 1% per month on the amount outstanding. If the statutory commercial interest is more than 12% per year, the Purchaser shall be liable to pay the statutory commercial interest.
9.3 Judicial and extrajudicial costs shall be payable by the Purchaser. The extrajudicial costs shall amount to 15% of the outstanding amount, with a minimum of EUR 250.
9.4 Without prejudice to the provisions of Article 6.2, complaints about invoicing may only be made within the payment term. Complaints must be submitted in writing. The submission of a complaint shall not suspend the Purchaser’s payment obligation.
9.5 Payments shall be deducted firstly from judicial costs, extrajudicial collection costs and interest payable, and then from the outstanding principal sums, starting with the most outstanding principal sums, regardless of any instructions to the contrary from the Purchaser.
Article 10 Suspension, termination by notice and dissolution
10.1 Rhinoman is entitled by written notice to suspend in whole or in part the performance of its obligations under any agreement and/or to terminate or rescind in whole or in part any agreement with immediate effect if:
(a) Purchaser is in default of the timely and complete performance of its obligations under any agreement;
(b) Purchaser is granted suspension of payment or purchaser is declared bankrupt;
(c) Purchaser is dissolved, liquidated, ceases operations or ceases to exist;
(d) a substantial part of the Purchaser's assets is the subject of a prejudgment or foreclosure attachment or seizure;
(e) directly or indirectly, the authority and control in (the enterprise of) the purchaser or a material part thereof is transferred by means of merger, as referred to in the SER-besluit Fusiegedragsregels 2015, to one or more persons other than the person(s) with whom such authority and control were previously vested, irrespective of whether these conduct rules apply in the case in question;
(f) Purchaser for other reasons should reasonably be deemed no longer able to perform its obligations under any agreement;
(g) any other event or circumstance occurs which has a similar effect to any of the above circumstances, whether under foreign law or otherwise.
10.2 If any of the events mentioned in clause 10.1 occurs, all existing claims of Rhinoman against Purchaser and all claims arising from any agreement shall be immediately due and payable and Rhinoman shall have the right to repossess the products. Rhinoman or any person authorized by Rhinoman is authorized to enter Purchaser's premises or the places where the products are stored to retrieve the products. Purchaser shall cooperate to enable Rhinoman to exercise its rights under this Article.
10.3 Articles 10.1 and 10.2 are without prejudice to any other rights Rhinoman may have under applicable law, including, but not limited to, the right to demand performance of the contract or to claim damages.
10.4 If, in accordance with the provisions of paragraph one of this Article or paragraph one of Article 8, Rhinoman suspends performance of the agreement, the Purchaser must, at the request of Rhinoman, extend any security required in accordance with Article 2.4 of these Terms and Conditions up to the new delivery date.
Article 11 Retention of title
11.1 Rhinoman shall remain the owner of all products sold by it until the Purchaser has paid the consideration relating to the products delivered or to be delivered by Rhinoman pursuant to the agreement, or relating to the work/services carried out or to be carried out also for the Purchaser pursuant to such agreement, and until it has paid the amounts owed due to a failure in the performance of such agreement.
11.2 Before payment has been made in full, the Purchaser shall not have the right to pledge the products to third parties fully or partially, or to transfer ownership of the products, other than in accordance with its normal activities or the normal use of the products.
11.3 The Purchaser shall keep the products delivered subject to a retention of title with due care and as the recognisable property of Rhinoman.
11.4 If the Purchaser fails in the performance referred to in paragraph one, Rhinoman shall have the right to take back itself, or have someone else take back, the products which are its property, at the Purchaser’s expense, from the place where they are located. The Purchaser hereby authorises Rhinoman irrevocably, if that situation arises, to enter, or have someone enter, the premises in use by or for the Purchaser.
11.5 The Purchaser shall not be permitted to rely upon a right of retention with regard to the costs incurred in connection with the safekeeping pursuant to Article 11.3, or to offset those costs against its performance.
11.6 If the Purchaser forms a new product from, or partly from, the products delivered to it by Rhinoman, this shall be a product which Rhinoman has had formed for itself. Furthermore, the Purchaser shall keep the product for Rhinoman, and Rhinoman shall always remain the owner until all the obligations referred to in paragraph one of this Article have been fulfilled.
Article 12 Applicable law and competent court
Dutch law shall apply exclusively to all agreements and to these Terms and Conditions. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded. All disputes arising with Rhinoman shall be settled by arbitration in accordance with the Arbitration Rules of the Netherlands Arbitration Institute, unless Rhinoman chooses to submit the claim to the ordinary court. In that case, the district court Oost Brabant, The Netherlands, shall be competent in this matter, unless prescribed mandatory to the contrary. In case of arbitration, the place of arbitration shall be Rotterdam, The Netherlands. The arbitral tribunal shall be composed of one arbitrator that shall rule in accordance with the rules of law.
