GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Of the private company with limited liability OTR Oiltrade B.V., with its registered offices in Bleiswijk, hereinafter referred to as: OTR.
Article: 1 General
1.1. These general terms and conditions exclusively apply to all offers, tenders made by or on behalf of OTR and agreements between third parties (hereinafter referred to as: the Client) and OTR.
1.2. Deviations in/from these general terms and conditions only apply if and insofar as these have been agreed in writing and then only for the agreement in question. The applicability of other general terms and conditions, whatever they may be called, is expressly rejected.
1.3. The Client who has already concluded contracts with OTR in the past, is deemed to tacitly agree to the applicability of these general terms and conditions to contracts concluded with OTR later on.
1.4. Where the term ‘written’ is referred to in these conditions, this is also understood to include every electronic form of sending messages, such as email, internet and/or intranet.
Article 2: Offers and agreements
2.1. All information in tenders and offers made by OTR, including price lists and other printed matter, website, etc. is without obligation and revocable and subject to change. OTR does not guarantee the accuracy, the completeness or relevance of this information. No rights can be derived from catalogues or other pre-printed information.
2.2. An agreement first comes into existence – whether or not following a proposal – when this has been confirmed in writing by OTR’s management and/or (an) employee(s) appointed by OTR to this end.
2.3. Additional agreements and/or amendments desired by the Client are only binding if these are confirmed in writing by OTR’s management and/or (an) employee(s) appointed by OTR to this end.
Article 3: Delivery
3.1. OTR endeavours to perform the contract to the best of its ability. A term of delivery stated by the Client or agreed with OTR shall apply at all times as an approximation and can therefore never be interpreted as a deadline. In the case of non-timely delivery, the Client shall state a more specific reasonable term in writing to OTR in which to complete delivery. OTR shall never be liable for any compensation.
3.2. If goods are not in stock, OTR is entitled to deliver the order in parts and/or, such at its discretion, supply similar goods. The Client is free to choose the manner of shipping and packaging, unless agreed otherwise in writing.
3.3. Unless agreed otherwise in writing, delivery takes place ex OTR warehouse.
3.4. Unless otherwise agreed in writing, the risk of the supplied or delivered goods is transferred to the Client at the time of delivery. If another place for delivery is agreed, the risk of the goods is transferred to the Client before the goods are handed over to the carrier.
3.5. The Client is obliged to take receipt of the goods to be delivered immediately, whereby failure to do so OTR shall be entitled to keep (put) the relevant goods into storage at the Client's account and risk.
Article 4: Price, payment and security
4.1. The agreed price is exclusive of turnover tax and based on the factors determining the price at the time of the quotation. OTR is entitled at all times to charge the Client interim price increases and any additional costs (including additional work as a result of incompleteness and/or inaccuracies in the information provided by the Client). OTR may also always and immediately charge all - increases in - levies, taxes, import duties, excise duties and exchange rates.
4.2. Unless agreed otherwise, the agreed price is based on delivery ex warehouse and excludes transport costs and any transport insurance. OTR retains the right, without stating reasons, to send ordered goods cash on delivery.
4.3. Unless agreed otherwise, payment is made in cash or on invoice and, in this latter case, no later than 30 days after invoice date. Payments are made without any entitlement to suspension, deduction or settlement by making use of the bank or giro account number designated by OTR and are considered to have been made at the offices of OTR. Costs in connection with the payment are for the account of the Client.
4.4. Should the Client not pay the amount due in good time, it owes to OTR, without further notice of default, interest for overdue payment of 1.5% per month, to be charged with effect from the invoice date, with part of a month counting as a whole month. In that case, the Client also owes an amount of EUR 50.00 in administration costs, as well as all additional extrajudicial and pre-trial costs, which will amount to 15% of the total amount receivable, such with a minimum of EUR 250.00 per occurrence.
4.5. Payments in the first place serve as payment for interest and collection costs due and subsequently as payment for, successively, the due and payable invoices with respect to which no legally valid retention of title is stipulated and after this the longest outstanding invoice, even if the Client states that the payment relates to another invoice. OTR is at all times entitled to suspend the fulfilment of its obligations by a period equal to that with which the Client remains in default of timely payment.
4.6. In the case of another attributable shortcoming by the Client or already occurred default of payment or if an attachment is placed on its goods or a moratorium of payment, bankruptcy or guardianship order against the Client is filed for, the amount owed by the Client shall be immediately and fully due and payable, therefore including interest, costs and any not yet due and payable invoices. The Client is then considered to be in default by operation of law, irrespective of previous time-limit agreements.
4.7. Irrespective of the agreed terms of payment, OTR remains at all times entitled to demand advance payment or adequate security from the Client before proceeding with delivery or continuing with a delivery that has already started. If the security or (down) payment is not provided within the stipulated period, OTR is entitled, without further notice of default, to suspend its obligations, or to consider the agreement to be dissolved, without being obliged to pay any compensation.
4.8. In case of failure to make prompt payment, and also under the other circumstances specified above, OTR shall be entitled at all times to suspend execution of the contract or to dissolve the contract wholly or in part at its own discretion and without any obligation to pay compensation.
Article 5: Retention of title and right of retention
5.1. As long as the Client has not paid the full amount of the relevant invoice – possibly increased with interest and additional costs due – the supplied or delivered goods remain the property of OTR.
5.2. The ownership is first transferred to the Client as soon as the entire amount receivable, including interest and/or costs due, has been fully paid. The Client shall not be authorised to deliver any goods that are still unpaid to third parties nor to process such goods, unless agreed otherwise and subject to delivery within the normal business operations. In case OTR cannot exercise its aforementioned rights because the supplied goods have been mixed, processed or have become constituent elements, the Client shall pledge the newly formed goods to OTR upon its first request.
5.3. The retention of title referred to also extends to any amounts receivable by OTR on account of failure of the Client in one of its other obligations and to amounts receivable by OTR on account of previous agreements with the Client. As long as the retention of title continues, the Client is obliged as a prudent debtor to take care of the – preservation of – the good, including adequate insurance, as well as to store the delivered goods as recognisable property of OTR, and the Client is not permitted to transfer, pledge the good in question or to encumber it with any other (restricted) right. The Client is also obliged to immediately report to OTR every circumstance that adversely affects or may affect the good.
5.4. If the Client fails to fulfil its obligations or there is good reason to believe that the Client shall fail to do so, OTR is entitled to take back the goods under retention of title that are supplied or delivered, subject to crediting if necessary. OTR has at all times free access to the goods under retention of title that are supplied or delivered wherever they may be located. The Client is obliged within reasonable limits to render assistance with all measures that OTR wants to take to exercise its retention of title with respect to these goods.
Article 6: Complaints and return shipments
6.1. The Client is obliged to inspect or cause to inspect the delivered goods immediately after receipt. Complaints about quality or quantity, or other defects and/or damage should be made known by the Client to OTR in a detailed written statement within five working days of receipt. Complaints will no longer be admissible once the Client has processed the delivered goods or has supplied them to third parties or if they are made after the specified period, unless the defect could first be detected by or during the processing, without prejudice to the obligation to complain in that case in good time (within five working days) and in the correct manner (detailed written statement to OTR).
6.2. Deviations concerning quantity as well as directly visible damage, also in the packaging, must be immediately reported on any (shipping) document, in default of which the goods are deemed to have been approved on those aspects and the Client cannot commence any action against OTR. The burden of proof that the goods which the Client is complaining about are the same as those which were supplied by OTR rests with the Client.
6.3. Small deviations shall never constitute a ground for the Client to refuse the relevant goods or dissolve the agreement. Complaints of whatever nature never suspend the payment obligations of the Client. The right of complaint lapses if the products are modified or repaired by the Client.
6.4. The right of complaint also lapses if the products are processed incorrectly and/or with the aid of the wrong tools and/or not in accordance with any user manual or in the case of any form of self-activation by the Client or a third party deployed by it. Complaints shall no longer be admissible if they are made later than six months after the day on which the delivery has taken place.
6.5. If the complaint appears to be valid, OTR has the choice of still supplying the agreed goods or to take back and replace the relevant goods, or dissolve the agreement and refund payments made.
6.6. Supplied or delivered goods can only be returned by the Client in consultation with and following permission from OTR. The return shipping should be sent to the office address of OTR. All costs associated with a return shipment are for the account of the Client.
6.7. Claims relating to amounts charged by OTR shall be submitted within 7 days after receipt of the relevant invoice in the manner specified in article 6.1, whereby failure to do so will result in the Client being deemed to have accepted the accuracy of the invoice in question.
Article 7: Force majeure
7.1. During a situation of force majeure – which is the case if, among other things, the execution of the agreement is obstructed by war, revolt, riots, acts of war, fire, water damage, flood, strikes, sit-down strikes, import and export restrictions, government measures, defects to machinery, failures in the supply of energy and/or delivery of materials by third parties, or any other circumstance of a nature such that commitment from OTR can no longer be reasonably demanded – the execution of the agreement will, at the discretion of OTR, either be suspended or the agreement will be dissolved by means of a written declaration, stating the circumstance that obstructs (further) execution. In that case, there will not be any obligation to pay compensation, except for payment by the Client of the costs actually incurred by OTR. In the case of the temporary or permanent impossibility of compliance by OTR as a result of force majeure, the Client is not entitled to suspend payment.
7.2. If at the commencement of the force majeure situation OTR has already partly fulfilled its obligations, or can still only partially fulfil its obligations, OTR is entitled to separately invoice the part already executed or still to be executed. In such case, the Client is still obliged to pay the invoice as if it concerned a separate contract.
Article 8: Guarantee
8.1. OTR undertakes towards the Client to supply goods of sound quality, in the quantity and in accordance with the description as established between parties in the quotation or in a more detailed written document. In general, OTR will make every effort to ensure that the agreed performance complies with the agreement and for that matter with reasonable demands for practicability and reliability of which the Client proves that they have occurred within six months of the delivery in accordance with article 3.
8.2. The Client shall treat the delivered goods with due care at all times and shall not perform any activities that could damage the quality or safety of the goods or OTR's reputation and/or the brands it represents. Defects caused by the Client’s failure to comply with its obligations under the preceding sentence, normal wear and tear, degradation, due to improper use or handling, use that does not comply with the instructions prescribed by law and OTR or defects that occur after handling or processing, mixing, modification by the Client, or by third parties, remain at all times beyond the scope of the guarantee.
Article 9: Liability, indemnification & product recall
9.1. With respect to all goods supplied and all activities performed by OTR, OTR is only obliged to fulfil its guarantee obligations referred to in article 8. Except in case of intent or gross negligence OTR’s liability shall be limited to the amount paid out by its insurer in the relevant case, or, if such an insurance policy has not been taken out and/or if no cover has been granted, up to the total price stipulated in the relevant agreement excluding VAT.
9.2. Under no circumstances shall OTR accept any liability in connection with exceeding delivery periods, inadequate cooperation on the part of the Client, materials supplied by third parties, nor for personal and bodily injury, immaterial damage or subsequent damage, including indirect and/or consequential loss, including loss of revenue, loss of profit and/or goodwill.
9.3. The Client shall indemnify OTR against all claims from third parties due to breaches of intellectual property alleged by them. Furthermore, the Client declares that it will in no way infringe the intellectual properties of OTR that are associated with concepts, models or drawings, brands and other intellectual achievements, whether or not produced by it. The Client is also obliged to indemnify OTR against any other liability and is obliged where possible to stipulate a similar exoneration in its agreements with third parties.
9.4. If either of the parties becomes aware of any defect in the goods delivered (including packaging), the relevant party is obliged to inform the other party immediately of such defect, stating:
a. the type of defect;
b. the goods affected;
c. any other information that may be relevant.
9.5. The parties shall then take all necessary measures commensurate to the circumstances by mutual consultation. Such measures may mean the discontinuation of deliveries, blocking product stocks (whether or not with the Client or with the Client’s customers) and/or a recall. Only OTR is entitled to decide if and which measures should be taken and how these shall be implemented. The Client shall render all reasonable cooperation in implementing these measures.
9.6. The Client is obliged to observe confidentiality with respect to any information relating to measures that may or will be taken.
Article 10: Cancellation
10.1. Should the Client cancel the order in good time and in writing with the explicit consent of OTR and stating compelling reasons, the Client is in any case obliged to reimburse OTR for all expenditure incurred by OTR within the scope of the order in connection with ordered and possible still to be purchased manufactured or processed materials and raw materials, as well as the resulting damage to OTR, which costs and damages are set in advance at 25% of the invoice amount, subject to all rights for further compensation.
10.2. Cancellation must take place no later than five working days before the agreed time of delivery. After this, cancellation is no longer possible and the stipulations referred to in article 3 apply to the delivery.
10.3. The Client shall also reimburse the costs ensuing from the cancellation and any exchange rate losses and indemnify OTR against every possible claim from third parties.
Article 11: Applicable law and agreed forum
11.1. Dutch law shall apply to all agreements with OTR and to all disputes arising from or associated with them. The provisions of the Vienna Convention on Treaties and of every other international regulation from which application can be excluded, are expressly excluded.
11.2. All disputes arising from or associated with the agreement including the present conditions will be referred to the ordinary civil court in Rotterdam, unless OTR prefers to elect domicile at the civil court of the Client.
These conditions were filed at the Office of the District Court in Den Haag on __ April 2012 under number ........