TERMS OF DELIVERY

General terms and conditions of the public limited company OMNICOL NEDERLAND B.V., entered in the Trading Register under number 11015085, located and with offices at ’s-Hertogenbosch, in the municipality of ’s-Hertogenbosch, and OMNICOL FLOORING B.V., entered in the Trading Register under number 74285742, located and with offices at ’s-Hertogenbosch, in the municipality of ’s-Hertogenbosch and also with offices at 2381 Weelde (Ravels), Belgium. 

Article 1:  Applicability/Definitions 

1.1 

The terms below have the following definitions in these general terms and conditions: 

• customer: purchaser, both the client and the person to whom we address our offer/price quote or advice, as well as the person with whom we enter into an agreement; 

• us/we/Omnicol: Omnicol Nederland B.V. and/or Omnicol Flooring B.V.; 

• terms and conditions: these general terms and conditions;

• items: goods and materials, as well as services/works, such as assembly, installation, pump truck services, maintenance, advice and inspections; 

• pump truck services: the making available by us of a pump truck and the making available by us of an operator to drive and operate the pump truck, as well as to keep it running, whereby the customer itself applies the materials supplied by us using the hose attached to the pump truck to the floor(s) in question (in which case the hose is operated by the customer and not by us); 

• location: the place where our services/works are to be provided/carried out. 

1.2 

These terms and conditions apply to all the price quotes made by us, to all the tasks allocated to us, to all the advice provided by us and to all agreements entered into with us. 

1.3

These terms and conditions may only be deviated from if agreed as such in writing with us. 

1.4

Any reference by the customer to its own terms and conditions of purchase, subcontracting or other terms and conditions are expressly rejected by us and consequently, such terms and conditions used by the customer will not apply, unless accepted by us in writing.

Article 2:  Price quotes, confirmations, prices and additional work 

2.1

All price quotes and proposals, as well as price lists and lists of charges are without obligation, except where this is defined differently in the price quote or proposal or the price list/list of charges. Price quotes and proposals are based on any information and details provided at the time the request is made. 

2.2. 

The samples and models of items and illustrations and descriptions of items, as well as statements of dimensions and weights (and similar details) in the documents/brochures/e-mails sent by us and as stated on our websites are not binding, unless expressly stated otherwise. 

2.3

Any illustrations, drawings, models, samples and swatches provided by us remain our property at all times and must be returned when first requested. Should this fail to be the case, the customer will owe a value to be determined by us. Our written permission is always required for the reproduction of illustrations, drawings, samples and swatches. 

2.4 

Customers are bound by our written confirmations if they have not disputed, in writing, the accuracy of the contents of the confirmations made in this way. 

2.5 

We reserve the ability not to accept, in full or in part, any order placed the customer, nor are we liable for any damage that this may cause the customer or third parties directly and indirectly. The customer will indemnify us for claims made by third parties. 

2.6

Verbal commitments made by and arrangements made with our subordinates do not bind us unless and insofar as they have been confirmed in writing by us to the customer. 

2.7

Unless agreed otherwise, the prices indicated by us apply for delivery from the factory/Omnicol office and exclude sales tax and packaging. Furthermore, and unless agreed otherwise, the prices of goods stated by us exclude the cost of assembly, installation and commissioning. 

2.8

If necessary, packaging will be charged by us at cost and will not be accepted back (unless stated otherwise in writing). The need to use packaging will be at our discretion. 

2.9

Statements of prices and charges are always made and price lists/lists of charges are always provided based on the prices in effect at the time of the purchase and/or order and/or agreement. If, after the agreement has been entered into, one or more factors involved in the cost price (including wages, taxes, premiums, raw materials, factory prices, foreign exchange rates, etc.) increase, we are entitled to pass this increase on to the customer.

2.10 

In any event, everything that is supplied, installed, performed and/or provided by us in consultation with the customer (whether or not set out in writing) with regard to the items expressly stated in the agreement or order confirmation during the fulfilment of the agreement (including services, works, units or quantities) will be regarded as additional work. We have the authority to make a separate charge for any additional work carried out.

Article 3:  Delivery, risk and assembly and installation times 

3.1

The item sold becomes at the expense and risk of the customer from the time at which the sales agreement is entered into. 

3.2

Unless agreed otherwise, all deliveries take place at the factory/Omnicol office: the transport of goods is entirely at the expense and risk of the customer, even if free delivery has been agreed. 

3.3 

Delivery lead times and the time needed for assembly/installation/repair are always considered to be estimates and may never be considered as fixed deadlines. In the event of any delay in delivery, assembly, installation and/or repair, we must be served notice of default in writing and we must also be granted a reasonable period of time to fulfil our obligations. 

3.4

If the customer refuses to take delivery of the goods offered to it at the time, all costs arising from such a refusal (including freight and storage costs) will be charged to the customer.

Article 4:  Terms of payment 

4.1 

Unless expressly agreed otherwise in writing, payment must be made at the latest thirty days after the invoice date, without any recourse to offsetting or any discount being allowed. Notwithstanding this, we are entitled to demand from the customer that payment must be made in advance by the customer or at the latest at the time the goods are delivered, or in advance or at the latest on the day that we commence the work. 

4.2 

Payment must be made in euros unless expressly agreed otherwise. 

4.3

If the customer has not paid within thirty days after the invoice date or not within a subsequently agreed period (or, as the case may be, by the date proposed by us), we are entitled to increase the amount receivable at a rate of 1% per month or by the statutory commercial rate if this is higher (in which case interest for part of the month is charged as a full month), beginning thirty days after the invoice date or after the agreed payment date. If the customer remains in default of (timely) payment, we are also entitled to increase our claim by the amount of collection charges incurred. Out-of-court collection charges are hereby set at 15% of the amount due, with a minimum of € 100.00. 

4.4

If the customer does not at all, does not properly or does not in timely fashion comply with any obligation that may be incumbent on the customer from the agreement entered into with us, as well as in the event of bankruptcy, suspension of payment, cessation or liquidation of the customer’s company, the customer will automatically be deemed to be in default, in which case, according to our choice, we have the right, without service of notice or intervention through the courts, either to suspend fulfilment of the agreement or to consider the agreement cancelled in full or in part, without us being held to any compensation or guarantee, without prejudice to our right to claim payment for the goods delivered and/or work carried out by us and without prejudice to our right to claim compensation for damages, costs and interest in connection with the suspension or dissolution from the customer. In the aforementioned cases, any claim that we have against the customer will become due immediately and payable at once. 

4.5 

During the execution of the agreement, we are entitled to suspend the fulfilment of our obligations until the customer has provided, at our request and to our satisfaction, security for the fulfilment of all its obligations under the agreement. This provision applies equally if credit is stipulated. Refusal by the customer to provide the required security will entitle us to regard the agreement as dissolved without intervention through the courts and to take back the goods delivered. This is without prejudice to our right to compensation for work already carried out by us and without prejudice to our right to compensation for damages, costs and interest.

Article 5:  Dissolution and cancellation 

5.1 

Dissolution by the customer of a contract entered into with us can only take place with our written consent. Without our written consent, dissolution by the customer of a contract entered into with us is not possible. 

5.2 

Cancellation by the customer of an order placed by it with us can only take place with our written consent. If we agree to the cancellation, the customer will owe us compensation of at least 25% of what the customer would have paid to us on fulfilment of the order/agreement.

Article 6:  Retention of title and lien 

6.1 

The customer only becomes the owner of the goods delivered or to be delivered by us under a suspensive condition. We retain ownership of the goods delivered or to be delivered as long as the customer has not paid our claims relating to the fulfilment of the agreement or a similar agreement. We also retain ownership of the goods delivered or to be delivered as long as the customer has not paid for the work performed or to be performed under such agreements and as long as the customer has not paid claims for failure to perform such agreements, including claims relating to penalties, interest and costs. 

6.2 

In the event of the customer failing to fulfil any obligation to us under the agreement with regard to goods sold, we are entitled to take back the goods. The customer hereby authorises us to enter the place where these goods are located. 

6.3 

Until such time as the customer has paid the claims mentioned under 6.1, any transfer or pledging by the customer of the goods delivered by us is not possible. 

6.4 

We will transfer ownership of the goods delivered to the customer at the time the customer has fulfilled all of its payment obligations under this and similar agreements, subject to a pledge by us for the benefit of other claims we have against the customer. The customer will, when first requested to do so by us, cooperate with any actions required in that context.

Article 7:   Services/works and collaboration/obligations of the customer 

Article 7 applies if we perform services/work such as assembly, installation, pump truck services, maintenance, advice and inspection on behalf of the customer/client. 

7.1 

Unless agreed otherwise, services/work such as assembly, installation, pump truck services, maintenance, advice and inspection will be carried out at the rates normally applicable or at the rates as stated in the price list provided by us or in the price quote provided by us or in the agreement entered into by us with the customer. Waiting times which fall outside the hours reserved by the customer/client with us for the agreed activities (including pump truck services) will be charged by us to the customer at the normally applicable rates or at the rates as stated in the price quote provided by us or in the agreement entered into by us with the customer. 

7.2 

The customer must ensure that we are able to carry out our work without interruption. To this end, the customer must, among other things, ensure that gas, water and electricity are available at the location where the work is to be carried out and that the location is heated. 

7.3 

The customer is obliged at all times to provide us with all useful and necessary data or information in timely fashion, which may be necessary for the proper fulfilment of the agreement. 

7.4 

If the work/services cannot be carried out immediately and without interruption or are delayed in any other way due to causes beyond our control, we are entitled to charge the customer for any additional costs/waiting times resulting from this at the rate applicable at the time. 

7.5 

The customer will bear all possible unforeseen costs, in particular costs incurred because the work/services could not be carried out during normal daytime hours. 

7.6 

The customer must be present at the time the work/services are completed and check that the relevant work has been carried out properly. 

7.7 

The customer is responsible for ensuring, at its own expense and risk, that: 

• the structure of the building/site in which, on which, to which or to which the items are assembled and/or installed and that the work carried out is suitable for that purpose;
• any drawings and/or specifications and/or instructions on which the work to be carried out by us is based have been duly verified and that the dimensions and other data provided have been properly checked; 
• the work related to, but not part of, our assignment/contract has been performed correctly and in a timely manner; 
• the customer’s own regulations and instructions are in our possession in good time before the work begins; 
• all obstacles located on the location/building site have been removed before commencement of the work, any unevenness in the subsoil has been levelled out and that the subsoil is strong enough to support the goods to be delivered by us and the works to be carried out by us; 
• the location can be accessed by our means of transport; 
• the customer observes all applicable government regulations, in particular safety regulations, and that any permits that may be required for the work to be carried out and for the use of our means of transport and pump truck have been granted to the customer and are in proper order.

Article 8:  Pump truck services 

Article 8 applies if we provide/carry out pump truck services on behalf of the customer/client. 

8.1 

The customer (of pump truck services) is responsible for ensuring, at its own expense and risk, that: 

• a 3/4 (clean) water connection of at least 2,000 litres per hour (which water connection must have a bayonet connection/Geka connection) is in place at the site; 
• the location/set-up area for the pump truck is sufficiently stable and suitable for a total weight of at least 40 tons with an axle load of at least 10 tons; 
• there is sufficient space at the location/set-up area for the pump truck to enable the pump truck to manoeuvre (turning circle 14 metres, height 4 metres, length 10 metres, width 2.5 metres); 
• if necessary, that there is sufficient space available at the location/site of the pump truck for reloading the pump truck; 
• there is a waste container at the site that can be used to collect residual material and any residue released when cleaning the pump truck;
• the materials and waste container are disposed of properly; 
• the waste container is available in the vicinity (maximum 10 metres) of the location/set-up area, with the customer being aware that the pump truck cannot be moved for flushing and cleaning purposes;
• the (pumping) site is handed back, clean, after completion of the works. 

8.2 

For the purpose of determining the quantity/weight of materials consumed by the pump truck delivered by us, our records are binding and decisive.

Article 9:  Complaints 

9.1 

As soon as the goods are received by the customer, the customer is required to establish whether the goods are in order in every respect and whether they are in accordance with the order placed/agreement entered into. 

9.2 

Any complaints, both with regard to the goods delivered by us and the quantity/weight of the goods delivered, and with regard to the work carried out by us and with regard to invoice amounts, must be submitted to us in writing within 8 working days of receipt of the goods, or after the work has been carried out, or after receipt of the invoices, respectively, specifying precisely the facts to which the complaint relates. 

9.3 

Complaints made after the departure of the assembly/installation personnel/pump truck operator concerning the assembly, installation or pump truck services will not be taken into consideration, unless the customer is able to demonstrate that it could not reasonably have discovered a defect at the time the assembly/installation/pump truck services were completed. In that case, the customer must lodge a complaint with us, in writing, within 8 working days of discovering the defect. 

9.4 

If we find the complaints to be well-founded, we will (at our discretion) repair or replace the goods or reimburse the invoice value of the defective goods or the defective work carried out by us. 

9.5 

Complaints, including those relating to the warranty obligations, will never entitle the customer to suspend fulfilment of its obligations to us. 

9.6 

Goods delivered by us which have been processed are deemed to have been approved. 

9.7 

The customer relinquishes all rights and powers available to it on the grounds of defects if it has not lodged a complaint within the time limits mentioned above.

Article 10:  Force majeure 

10.1 

Force majeure will include any circumstance beyond our control that prevents the normal fulfilment of the agreement. Such circumstances of force majeure include, in any event, default in delivery by our own suppliers for whatever reason, strikes, lockouts, disruption of energy supplies, traffic disruptions, breakdown of machinery, government measures and their consequences, loss or damage in transit, etc. 

10.2 

In the event of fulfilment of the agreement being prevented due to force majeure on our side, we are entitled, without intervention through the courts, either to suspend fulfilment of the agreement for a maximum of 3 months, or to dissolve the agreement in whole or in part, without being liable for any damages. During the period of suspension, we will be entitled, and at the end of it we will be obliged, to opt for fulfilment or partial or full dissolution of the agreement.

Article 11:  Non-enforceability of the agreement 

11.1 

If we have been given an order on the basis of a drawing, sample, model, specification or otherwise and this order has been accepted by us, we are entitled, without being obliged to pay any compensation, to cancel the agreement if it appears that fulfilment of the agreement/order cannot be achieved (without additional costs) in accordance with the originally intended method of production, or that the item cannot be manufactured (without considerable additional costs) in accordance with the originally intended method of production, unless the customer is prepared to bear the necessary additional costs.

Article 12:  Warranty 

12.1 

If we have issued a guarantee certificate to the customer, the provisions set out in this guarantee certificate (if and insofar as they differ from the provisions of these terms and conditions) will apply.

12.2 

Subject to the provisions of these conditions, we provide a warranty on the goods delivered by us and on the work performed by us for a period of 12 months after delivery of the goods or after the work has been carried out, as the case may be. Subject to the provisions of these terms and conditions, we guarantee the maximum shelf life of the goods delivered by us in original sealed packaging for the period as stated on the packaging and/or on the product sheets/product certificates/product sheets of the goods in question. No warranty is provided by us on delivered or used items, unless expressly agreed between the parties. 

12.3 

Our liability under the warranty in respect of goods delivered by us that are defective will be limited (at our option) to the repair or replacement of the goods or reimbursement (at our option) of the invoice value of the defective goods. Our liability under the warranty in respect of work carried out by us that is defective work will be limited (at our option) to the repair or replacement of those items supplied by us that are defective as a result of the work performed or to the reimbursement (at our option) of the invoice value for the work carried out by us that is defective. Further guarantees are excluded. Any travelling time involved in the warranty, as well as the demolition, assembly and installation costs related to the warranty will be borne by the customer. 

12.4 

The warranty does not apply to defects caused by normal wear and tear, careless or inexpert use, failure to comply with instructions provided by us for the use of the goods (including specific and general guidelines and product sheets), inadequate and/or inexpert maintenance, accident or disaster, such as fire or water damage or if the goods have been modified or repaired by third parties. 

12.5 

The warranty only applies if the customer has fulfilled all of its obligations to us. 

12.6 

Any costs of repair outside the scope of this warranty will be charged by us.

Article 13:  Liability 

13.1 

Our liability is expressly limited to compliance with the provisions of Articles 8.4 and 12.3. Any further liability on our part is excluded. 

13.2 

Advice and information relating to the goods to be supplied, as well as instructions for their use (including specific and general guidelines and product sheets) are provided by us to the best of our knowledge and are listed by us on our websites to the best of our knowledge. We accept no liability for the accuracy of these recommendations, data, instructions for use, guidelines and product sheets. The instructions for use, guidelines and product sheets must be confirmed and tested under the prevailing conditions by the customer’s own tests. 

13.3 

We are never liable for damage caused by our non-managerial staff and auxiliary persons engaged by us, even in the event of intent or gross negligence. 

13.4 

We will never be liable for indirect damage (including loss of profits and/or stagnation damage), regardless of the cause. 

13.5 

In the event that, notwithstanding the exclusions of liability contained in these terms and conditions, any liability for damages that resides with us will in any case be limited to a maximum of the net invoice amount of the goods delivered by us or the work carried out by us in respect of which we are liable to pay compensation. 

13.6 

The customer will indemnify us against claims made by third parties, for whatever reason, for compensation of damage, costs or interest, related to or arising from goods delivered by us or to work carried out by us or advice provided by us.

Article 14:  Applicable law and choice of jurisdiction 

14.1 

The agreements entered into with us are governed exclusively by Dutch law, subject to these terms and conditions. 

14.2 

The applicability of the Vienna Sales Convention is expressly excluded. 

14.3 

All disputes arising from agreements entered into with us, or further agreements resulting therefrom, or arising from price quotes made by us and advice provided by us, will be adjudicated exclusively by the competent District Court for East Brabant, in the location of ‘s-Hertogenbosch, unless we choose another court.