General Terms and Conditions Ultramar Products B.V.
The private company Ultramar Products B.V. (hereinafter: Ultramar Products) is registered with the Chamber of Commerce under number 56248385 and is located at Vaartweg 14eerste verdi (4905BL) in Oosterhout.
Article 1 - Definitions
1. In these general terms and conditions, the following terms are used in the following sense, unless explicitly stated otherwise:
2. Offer: Any written offer to Buyer to supply Products by Seller to which these terms and conditions are indissolubly attached.
3. Company: The natural or legal person who acts in the exercise of a profession or business.
4. Consumer: The natural person who is not acting in the exercise of a profession or business.
5. Buyer: The Business or Consumer that enters into an Agreement (at a distance) with the Seller.
6. Agreement: The (distance) sales agreement concluded for the sale and delivery of Products purchased by the Buyer from Ultramar Products.
7. Products: The Products offered by Ultramar Products are maintenance products, tarpaulin and tent cloths, and related products.
8. Seller: The supplier of the Products to the Buyer, hereinafter referred to as: Ultramar Products.
Article 2 - Applicability
1. These general terms and conditions are applicable to every Offer made by Ultramar Products and every Agreement concluded between Ultramar Products and a Buyer, and to every Product offered by Ultramar Products.
2. Before an Agreement (at a distance) is concluded, the Buyer shall be provided with these general terms and conditions. Should this not be reasonably possible, Ultramar Products shall inform the Buyer in what manner he may inspect the general terms and conditions, which shall in any case be published on the Ultramar Products website, so that the Buyer may easily save these general terms and conditions on a permanent data carrier.
3. Exceptional situations may arise in which these general terms and conditions are deviated from, if such deviation is agreed upon explicitly and in writing with Ultramar Products.
4. These general terms and conditions also apply to supplementary, amended and follow-up agreements with the Buyer. Any general and/or purchasing conditions of the Buyer are expressly rejected.
5. If one or more provisions of these general terms and conditions are null and void or annulled in part or in whole, the other provisions of these general terms and conditions will remain in force and the null and void provision(s) will be replaced by a provision with the same purport as the original provision.
6. Uncertainties about the content, explanation or situations not provided for in these general terms and conditions must be assessed and explained in the spirit of these general terms and conditions.
7. If in these general terms and conditions reference is made to she/he, this should also be understood as a reference to he/she/it, if and to the extent applicable.
Article 3 - The Offer
1. All offers made by Ultramar Products shall be without engagement, unless expressly indicated otherwise in writing. Should the Offer be limited or valid under specific conditions, this shall be expressly stated in the offer. An Offer shall not be deemed to exist unless it is made in writing.
2. The Offer made by Ultramar Products shall be without engagement. Ultramar Products shall be bound by the Offer only if the Buyer confirms acceptance thereof in writing within 30 days, or if the Buyer has already paid the amount due. Nevertheless, Ultramar Products shall be entitled to refuse to conclude an Agreement with a potential Buyer for any reason whatsoever.
3. The Offer contains an accurate description of the Product offered with the corresponding prices. The description shall be sufficiently detailed to enable the Buyer to make a proper assessment of the Offer. Obvious mistakes or errors in the Offer shall not bind Ultramar Products. Any illustrations and specific details in the offer are merely indicative and may not constitute grounds for any damages or the dissolution of the (distance) agreement. Ultramar Products cannot guarantee that the colours in the images will exactly match the actual colours of the Product.
4. Delivery periods and terms stated in the offer of Ultramar Products are indicative only and, if exceeded, shall not entitle the Buyer to dissolution or damages, unless expressly agreed otherwise.
5. A compound quotation shall not oblige Ultramar Products to deliver part of the goods included in the offer or quotation at part of the stated price.
6. If and insofar as there is an offer, this does not automatically apply to repeat orders. Offers are valid only until stocks last and according to the 'on sale' principle.
Article 4 - Conclusion of the Agreement
1. The Agreement is concluded at the moment that the Buyer has accepted an offer made by Ultramar Products by paying for the Product in question.
2. An Offer can be made by Ultramar Products via the website.
3. If the Buyer has accepted the Offer by concluding an Agreement with Ultramar Products, Ultramar Products shall confirm the Agreement with the Buyer in writing, or at least by e-mail.
4. Should the acceptance (on minor points) deviate from the Offer, Ultramar Products shall not be bound by it.
5. Ultramar Products shall not be bound by an Offer if the Buyer could reasonably have expected or ought to have understood that the Offer contains an obvious mistake or clerical error. The Buyer may not derive any rights from this mistake or slip of the pen.
6. The right of withdrawal is excluded for the Buyer being a company. The Buyer being a Consumer shall be entitled to exercise the right of withdrawal within the statutory period. If withdrawal is applicable, Buyer shall handle the Product and the packaging with care. It shall only unpack or use the Product to the extent necessary to establish the nature, characteristics and operation of the Product. The direct costs for returning the Product shall be borne by Buyer.
7. Products that cannot be returned due to (hygienic reasons, custom-made products, etc.) are excluded from the right of withdrawal. This is explicitly stated in the offer.
Article 5 - Execution of the Agreement
1. Ultramar Products shall perform the Agreement to the best of its knowledge and ability.
2. If and to the extent required for proper performance of the agreement, Ultramar Products is entitled, at its own discretion, to have certain work carried out by third parties.
3. The Buyer shall ensure that all information, which Ultramar Products states to be necessary or which the Buyer should reasonably understand to be necessary for the performance of the agreement, is provided to Ultramar Products in a timely fashion. If the information necessary for the fulfillment of the agreement is not provided in a timely fashion to Ultramar Products, Ultramar Products shall be entitled to suspend fulfillment of the agreement.
4. During the performance of the Agreement, Ultramar Products shall not be required or obliged to follow the Buyer's instructions if this results in a change to the content or scope of the Agreement. Should the instructions result in additional work for Ultramar Products, the Buyer shall be obliged to pay the additional or supplementary costs accordingly.
5. Ultramar Products may require security or full payment in advance from the Buyer before proceeding to perform the Agreement.
6. Ultramar Products shall not be liable for damages of any kind whatsoever resulting from incorrect and/or incomplete information supplied by the Buyer, unless Ultramar Products was aware of such incorrectness or incompleteness.
7. The buyer shall indemnify Ultramar Products against any claims from third parties who may sustain damage in connection with the performance of the agreement that can be attributed to the buyer.
Article 6 - Delivery
1. Should the commencement, progress or delivery of the agreement be delayed due to, for example, the Buyer failing to provide all of the requested information or to cooperate in a timely fashion, the fact that Ultramar Products has not received the (advance) payment in a timely fashion, or any other circumstances beyond the control of Ultramar Products, Ultramar Products shall be entitled to a reasonable extension of the delivery period. All agreed delivery dates shall never be firm deadlines. The buyer shall notify Ultramar Products in writing of his default and grant Ultramar Products a reasonable period in which to make (delivery) arrangements after all. The buyer shall not be entitled to any damages as a result of the delay.
2. The Buyer shall be obliged to accept the goods at the time when they are made available to him in accordance with the Agreement, even if they are offered to him earlier or later than agreed.
3. If the Buyer refuses to accept delivery or fails to provide information or instructions necessary for delivery, Ultramar Products shall be entitled to store the goods at the risk and expense of the Buyer.
4. If the Products are delivered by Ultramar Products or an external carrier, Ultramar Products shall be entitled, unless agreed otherwise in writing, to charge any delivery costs. These shall then be invoiced separately, unless expressly agreed otherwise.
5. Should Ultramar Products require information from the Buyer within the context of performance of the agreement, the delivery period shall not commence until the Buyer has provided Ultramar Products with all the information necessary for performance.
6. Should Ultramar Products specify a delivery period, this shall be indicative only. Longer delivery periods shall apply to deliveries outside the Netherlands.
7. Ultramar Products is entitled to deliver the goods in parts, unless this has been agreed to in the Agreement or no independent value can be attached to the partial delivery. Ultramar Products shall be entitled to invoice the goods so delivered separately.
8. Deliveries shall only be made if all invoices have been paid, unless expressly agreed otherwise. Ultramar Products reserves the right to refuse delivery if there is a well-founded fear of non-payment.
Article 7 - Packaging and transport
1. Ultramar Products undertakes, vis-à-vis the Buyer, to package the goods to be delivered properly and to secure them in such a way that they will reach their destination in good condition during normal use.
2. Unless otherwise agreed in writing, all deliveries are inclusive of turnover tax (VAT) and inclusive of packaging and packaging materials.
3. Acceptance of goods without any comments or observations on the consignment note or the receipt is proof that the packaging was in good condition at the time of delivery.
Article 8 - Investigation, complaints
1. The Buyer shall be obliged to inspect (or cause to be inspected) the Products delivered at the time of delivery, but in any event within 14 days of receipt of the Products, and only to unpack or use them to the extent necessary to assess whether they retain the Product. In doing so, the Purchaser shall examine whether the quality and quantity of the goods delivered corresponds to the Agreement and whether the Products meet the requirements applicable to them in normal (commercial) dealings.
2. The Buyer shall be required to investigate and inform himself as to how the Product should be used and, in the case of personal use, to test the Product in accordance with the instructions for use. Ultramar Products accepts no liability for the Buyer's improper use of the Product.
3. Any visible defects or shortages must be notified in writing to Ultramar Products at [email protected] after delivery. The buyer shall have 14 days after delivery to do so. Non-visible defects or shortages must be reported within 14 days of their discovery, but no later than 6 months after delivery. If the Product is damaged as a result of careless handling by the Buyer, the Buyer shall be responsible for any decrease in the value of the Product.
4. If a complaint is made in time pursuant to the previous paragraph, the Buyer shall remain under the obligation to pay for the goods purchased. If the Buyer wishes to return defective goods, he may do so only with the prior written consent of Ultramar Products, in the manner indicated by Ultramar Products.
5. Should the buyer, being a consumer, exercise his right of withdrawal, he shall return the Product and all of its accessories, insofar as this is reasonably possible, in their original condition and packaging to Ultramar Products in accordance with the return instructions of Ultramar Products. The direct costs for the return shipment shall be at the expense and risk of the Buyer.
6. Ultramar Products shall be entitled to initiate an investigation into the authenticity and condition of the returned Products prior to reimbursement.
7. Refunds to the Buyer will be processed as quickly as possible, but may take up to 14 days after receipt of the Buyer's declaration of dissolution. Refunds will be made to the previously specified account number.
8. If the Buyer exercises its right of complaint, the Buyer, being a business, is not entitled to suspend its payment obligation or to set off outstanding invoices.
9. Should the Buyer fail to make a complete delivery, and/or should one or more Products be missing, and this is attributable to Ultramar Products, Ultramar Products shall, at the request of the Buyer, either ship the missing Product(s) or cancel the remaining order. The receipt of the Products shall be decisive in this regard. The Buyer may not claim any damages incurred by Ultramar Products as a result of the (deviating) scope of delivery.
Article 9 - Prices
1. During the period of validity of the Offer, the prices of the Products offered will not be increased, except in the case of changes in VAT rates.
2. The prices stated in the Offer include VAT, unless explicitly stated otherwise.
3. The prices as mentioned in the Offer are based on the cost factors applicable at the time of concluding the Agreement, such as: import and export duties, freight and unloading costs, insurance and any levies and taxes.
4. In the case of Products or raw materials of which the financial market is subject to price fluctuations over which Ultramar Products has no influence, Ultramar Products may offer these Products at variable prices. The offer shall state that the prices are guide prices and may fluctuate.
Article 10 - Payment and collection policy
1. Payment should preferably be made in advance in the currency of the invoice by the method indicated.
2. The Buyer cannot derive any rights or expectations from an estimate issued in advance, unless the parties have explicitly agreed otherwise.
3. The buyer shall make all payments at once to the account number and details of Ultramar Products notified to him. The parties may agree on a different payment period only after explicit written consent from Ultramar Products.
4. If a periodic payment obligation on the part of the Buyer has been agreed upon, Ultramar Products shall be entitled to adjust the applicable prices and rates in writing, observing a period of 3 months.
5. In the event of the liquidation, bankruptcy, seizure or suspension of payment of the buyer, the claims of Ultramar Products against the buyer shall become due and payable forthwith.
6. Ultramar Products shall be entitled to have the payments made by the buyer go first of all to reduce the costs, subsequently to reduce the interest that has fallen due, and finally to reduce the principal sum and the current interest. Ultramar Products may, without thereby falling into default, refuse an offer for payment if the buyer designates a different sequence of attribution. Ultramar Products may refuse to allow the principal sum to be repaid in full, if this does not include the interest accrued, the current interest and the costs.
7. If the Buyer does not fulfil its payment obligation and has not made payment within the stipulated period of 14 days, the Buyer, being a Consumer, will be in default. The Buyer, being a Consumer, will first receive a written demand with a term of 14 days after the date of the demand to fulfil the payment obligation with an indication of the extrajudicial costs if the Consumer does not fulfil its obligations within this term, before it will be in default.
8. From the date on which the Buyer is in default, Ultramar Products shall, without any further notice of default being required, claim the statutory (commercial) interest from the first day of default until full payment and reimbursement of the extrajudicial costs in accordance with article 6:96 of the Dutch Civil Code, to be calculated in accordance with the graduated scale set out in the Decree on the reimbursement of extrajudicial collection costs of 1 July 2012.
9. If Ultramar Products has incurred more or higher costs than reasonably necessary, such costs shall be eligible for reimbursement. The Buyer shall also bear the judicial and execution costs incurred.
Article 11 - Retention of title
1. All goods delivered by Ultramar Products shall remain the property of Ultramar Products until the buyer has fulfilled all of his obligations arising from all agreements concluded with Ultramar Products.
2. The Buyer is not authorised to pledge or otherwise encumber goods subject to retention of title if ownership has not been transferred in full.
3. If third parties levy attachment on the goods delivered subject to Retention of Title or wish to establish or enforce rights to them, the Buyer shall be obliged to notify Ultramar Products thereof as soon as may reasonably be expected.
4. Should Ultramar Products wish to exercise its property rights as set out in this article, the buyer hereby grants Ultramar Products, or any third parties to be appointed by Ultramar Products, unconditional and irrevocable permission and authorization to enter all such places where the property of Ultramar Products is located and to repossess such goods.
5. Ultramar Products shall be entitled to retain the Product(s) purchased by the Buyer if the Buyer has not yet (entirely) fulfilled his payment obligations, despite an obligation to transfer or surrender the Product(s) to Ultramar Products. After the Buyer has fulfilled his obligations, Ultramar Products shall endeavour to deliver the purchased Products to the Buyer as quickly as possible, but at the latest within 20 working days.
6. Costs and other (consequential) damages resulting from the retention of the purchased Products shall be at the risk and expense of the Buyer and shall be reimbursed by the Buyer to Ultramar Products upon Ultramar's first request.
Article 12 - Warranty
1. Ultramar Products warrants that the Products comply with the Agreement, the specifications stated in the offer, usability and/or soundness, and the statutory rules/regulations in force at the time of the conclusion of the Agreement. This shall also apply if the goods to be delivered are destined for use abroad and the Buyer specifically notified Ultramar Products of such use in writing at the time the Agreement was concluded.
2. In the case of the Buyer who is a Consumer, he shall be entitled to replacement of the Product if it is suspected that the Product did not meet the requirements of the Agreement at the time of delivery, if the deviation from the agreed upon conditions becomes apparent within a period of 6 months after delivery, unless the nature of the Product or the nature of the deviation is such that this would be contrary to the Agreement. The foregoing shall not affect the fact that Ultramar Products is not responsible for the suitability of the Products for each individual application by the Buyer. The Buyer shall comply with the regulations and instructions of Ultramar Products. The guarantee offered shall not affect the fact that Ultramar Products is not responsible for the suitability of the Products for any individual application by the Buyer. The Buyer shall comply with the directions and instructions of Ultramar Products.
3. The above warranty shall extend only to that which is provided by the manufacturer and shall be valid for a period equal to the manufacturer's warranty. Ultramar Products shall never be responsible for the suitability of the Products for any individual application by the Buyer.
4. Should the goods to be delivered fail to fulfill this warranty, Ultramar Products shall, at its own discretion, replace or see to the repair of the goods within a reasonable period of time after receipt thereof. In the event of replacement, the Buyer undertakes to return the replaced good to Ultramar Products and to transfer ownership to Ultramar Products.
5. The guarantee mentioned herein shall not apply when the defect has arisen as a result of injudicious or improper use or when, without the written consent of Ultramar Products, the buyer or third parties have made changes or attempted to make changes to the good, or have used it for purposes for which the good is not intended, or under abnormal conditions.
Article 13 - Suspension and dissolution
1. Ultramar Products is authorized to suspend fulfillment of the obligations or to dissolve the Agreement should the Buyer fail to fulfill his (payment) obligations under the Agreement or fail to fulfill them in full.
2. Furthermore, Ultramar Products is authorized to dissolve, without judicial intervention, the agreement existing between it and the Buyer, insofar as this agreement has not yet been implemented, if the Buyer fails to fulfill, or fails to fulfill in a timely fashion, the obligations arising for him from any agreement entered into with Ultramar Products.
3. Ultramar Products shall furthermore be entitled to dissolve the agreement, or have it dissolved, without prior notice of default being required, if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer reasonably be expected.
4. Should the agreement be dissolved, the claims of Ultramar Products against the buyer shall become due and payable forthwith. Should Ultramar Products suspend fulfillment of the obligations, it shall retain its claims under the law and the Agreement.
5. Ultramar Products retains the right to claim damages at all times.
Article 14 - Limitation of liability
1. Should the performance of the agreement by Ultramar Products result in liability on the part of Ultramar Products towards the Buyer or third parties, such liability shall be limited to the costs charged by Ultramar Products in connection with the agreement, unless the damage is caused by intent or gross negligence. Ultramar Products' liability shall in any case be limited to the maximum amount paid out by the insurance company per incident per year.
2. Ultramar Products shall not be liable for consequential damage, indirect damage, loss of profit and/or loss incurred, loss of savings and damage resulting from the use of the Products supplied. For Consumers there is a limitation in accordance with that which is permitted pursuant to article 7:24 paragraph 2 of the Dutch Civil Code.
3. Ultramar Products shall not be liable for and/or obliged to make good any damage resulting from the use of the Product. Ultramar Products provides strict maintenance and use instructions, which shall be observed by the Buyer. Any damage to the Products resulting from wear and use is expressly excluded from liability (this includes traces of use, damage due to fall, light and water damage, theft, loss, etc.).
4. Ultramar Products shall not be liable for any damage which is or may be the result of any act or omission on the part of Ultramar Products in connection with the (incomplete and/or incorrect) information on the website(s) or any linked websites.
5. Ultramar Products is not responsible for errors and/or irregularities in the functionality of the website and shall not be liable for any failure or unavailability of the website for any reason whatsoever.
6. Ultramar Products is neither liable for the proper and complete transmission of the content of emails sent by or on behalf of Ultramar Products, nor for the timely receipt thereof.
7. All of the Buyer's claims due to shortcomings on the part of Ultramar Products shall lapse if the Buyer has not notified Ultramar Products in writing, stating the reasons, within one year after the Buyer became aware or could reasonably have become aware of the facts on which his claims are based. All claims of the Buyer shall in any case expire one year after the termination of the Agreement.
Article 15 - Force majeure
1. Ultramar Products shall not be liable if it is unable to fulfil its obligations under the agreement due to force majeure, nor shall it be obliged to fulfil any such obligation if it is prevented from doing so as a result of a circumstance that cannot be attributed to its fault and which is not for its account under the law, a juristic act or generally accepted practice.
2. Force majeure shall in any case include, but not be limited to, the definition of force majeure in the relevant laws and case law, (i) force majeure of suppliers of Ultramar Products, (ii) failure to properly fulfill obligations of suppliers prescribed or recommended by the Buyer to Ultramar Products, (iii) defectiveness of goods, equipment, software or materials of third parties, (iv) government measures, (v) power failure, (vi) failure of the Internet, data network and telecommunications facilities (for example due to cybercrime and hacking), (vii) natural disasters, (viii) war and terrorist attacks, (ix) general transport problems, (x) strikes at the company of Ultramar Products and (xi) other situations which, in the opinion of Ultramar Products, fall outside its sphere of influence, which temporarily or permanently prevent fulfillment of its obligations.
3. Ultramar Products shall be entitled to invoke force majeure if the circumstance rendering (further) fulfillment impossible should arise after Ultramar Products should have fulfilled its obligation.
4. The parties may suspend their obligations under the Agreement during the period of force majeure. If this period lasts longer than two months, either party shall be entitled to dissolve the Agreement without being obliged to pay the other party damages.
5. To the extent that Ultramar Products, at the time when force majeure arises, has already partially fulfilled its obligations under the agreement or will be able to fulfil them and that independent value can be attributed to the part fulfilled or to be fulfilled respectively, Ultramar Products shall be entitled to invoice the part fulfilled or to be fulfilled respectively. The buyer shall be held to pay this invoice as if it were a separate agreement.
Article 16 - Transfer of risk
The risk of loss or damage to the Products that are the subject of the Agreement shall pass to the Buyer, being a company, at the moment when the goods leave the warehouse of Ultramar Products. For Consumers, the risk mentioned above shall pass to the Buyer if the Products have been transferred to the Buyer's control. This shall be the case if the Products have been delivered to the Buyer's delivery address.
Article 17 - Intellectual Property Rights
1. All intellectual property rights and copyrights of Ultramar Products shall remain the exclusive property of Ultramar Products and shall not be transferred to the Buyer.
2. The Buyer shall not disclose and/or multiply, modify or make available to any third party any materials that are subject to the intellectual property rights and copyrights of Ultramar Products without the prior written consent of Ultramar Products. Should the Buyer wish to make any changes to the materials delivered by Ultramar Products, the Buyer must provide Ultramar Products with express consent to the proposed changes.
3. The Buyer is prohibited from using the Products to which Ultramar Products' intellectual property rights apply in any manner other than as agreed upon in the Agreement.
Article 18 - Privacy, data processing and security
1. Ultramar Products shall handle the (personal) data of the buyer and visitors to the site(s) with care. Where requested, Ultramar Products will inform the party involved accordingly.
2. If Ultramar Products is required under the Agreement to provide security for information, such security shall meet the agreed upon specifications and shall provide a level of security that, given the state of the art, the sensitivity of the data, and the costs involved, is not unreasonable.
Article 19 - Complaints
1. Should the Buyer be dissatisfied with the Ultramar Products and/or have any complaints about the (performance of the) Agreement, the Buyer shall be obliged to notify Ultramar Products of these complaints as soon as possible, but no later than within 14 calendar days after the relevant cause of action has arisen. Complaints may be reported via [email protected] with the subject "Complaint".
2. The complaint must be sufficiently substantiated and/or explained by the Buyer in order for Ultramar Products to handle the complaint.
3. Ultramar Products shall respond to the complaint in terms of content as soon as possible, but at the latest within 14 calendar days after receipt of the complaint.
4. The parties will try to reach a solution together.
Article 20 - Applicable law
1. All agreements between Ultramar Products and the buyer shall be governed by Dutch law. The applicability of the (CISG) Vienna Sales Convention is expressly excluded.
2. Where the content and purport of these general terms and conditions are to be interpreted, the Dutch text shall always prevail. Ultramar Products shall be entitled to unilaterally amend these general terms and conditions.
3. All disputes arising from or in connection with the agreement between Ultramar Products and the buyer shall be settled by the competent court in Zeeland-West Brabant, in the district of Breda, the Netherlands, unless mandatory provisions of law result in the jurisdiction of another court.
Oosterhout, 29 May 2021