Terms and conditions

WELSH SLATE EUROPE BV GENERAL TERMS AND CONDITIONS OF SALE

Registered office: Maasbracht, the Netherlands — Place of business: Battenweg 10, Maasbracht, the Netherlands

As deposited with the Chamber of Commerce and Industry for North and Central Limburg

Article 1. General.

1. All offers made by and/or made to us, all agreements concluded with us, as well as the execution thereof, and all other undertakings made with us, are exclusively governed by these General Terms and Conditions. They shall also apply to all subsequent offers, agreements and deliveries, irrespective of how these were concluded.
2. The applicability of the client’s general terms and conditions is hereby expressly excluded.
3. Any deviations from these general terms and conditions can only be agreed in writing, with the written confirmation issued by us being decisive in terms of the content and scope of the changes and the consequences for the price.

 

Article 2. Offers and agreements.

1. All offers and quotes provided by us are without obligation, even if a specific period for acceptance has been stated.
2. The agreement shall be concluded only after we have confirmed the order in writing or, if the order has not been confirmed in writing, when we commence the execution of the works. In the latter case, our offer/quote (or, in its absence, our invoice) shall be deemed to reflect the content of the agreement correctly and fully.
3. Verbal assurances and agreements with us or our employees shall not be binding on us unless and insofar as they have been confirmed in writing by authorised persons on our behalf.
4. Cancellation of an agreement is only possible with our consent. From seven days prior to delivery, agreements can no longer be cancelled. In the event of cancellation, the client must in any case reimburse the costs already incurred by us and pay us a penalty of 15% of the contractual price. In addition, the client is obliged to indemnify us against any third-party claims resulting from the cancellation of the agreement.
5. The General Data Protection Regulation (GDPR) applies in full to the agreement concluded between the parties. Insofar as Personal Data are processed within the scope of the performance of the works, these Personal Data shall be processed in a proper and careful manner in accordance with the requirements of the GDPR. Where necessary, required or desired, the further application and elaboration of the provisions of the GDPR shall, per agreement, be laid down between the parties in an addendum to the agreement.

 

Article 3. Prices.

1. Prices are exclusive of VAT and transport costs.
2. In the event of demonstrable changes to one or more of the cost-determining factors, such as purchase prices, exchange rates, wages, taxes, duties, charges, freight, customs tariffs and so on after the offer or conclusion of the agreement, we shall be entitled to adjust our prices accordingly, insofar as this is not prohibited by law and regardless of whether or not the change was foreseeable at the time the agreement was concluded. In such case, the client shall not have the right to cancel the agreement.

 

Article 4. Delivery time and delivery.

1. Any delivery times stated or agreed are indicative and shall never be considered to be deadlines, unless explicitly agreed otherwise in writing.
2. If the delivery time is exceeded, the client must, by registered post, grant us another reasonable period of at least 14 days to fulfil our obligations.
3. If the delivery is to be made in parts, each delivery shall be regarded as a separate transaction.
4. We can in no way be held liable for exceeding the agreed delivery period, for whatever reason, unless us doing so is the direct and immediate consequence of an intentional act or gross negligence on our part. Exceeding the agreed period shall not oblige us to pay any compensation and shall not give the client the right to dissolve the agreement and/or to refuse to take delivery and/or to invoke suspension.
5. The client shall be obliged to accept the goods offered by us for delivery. Delivery shall be made at the place specified on the quote or order confirmation. The goods shall be deemed to have been delivered by us and accepted by the client as soon as they have been delivered and unloaded on site.
6. Any specified delivery period shall only commence after the agreement has been concluded, we are in possession of all information required for the start of its execution, and any agreed advance payment has been made by the client.
7. If, upon delivery, any damage and/or defects that can be observed on arrival of the goods are not immediately reported on the accompanying return delivery note, delivery slip or similar document, we shall not be liable for them. The client must also report any damage or defects to us in writing within 24 hours of delivery.
8. Any waybill, delivery note or similar document issued upon delivery shall be deemed to correctly reflect the quantity and scope of the goods delivered, unless the client notifies us of its objection immediately (24 hours) after receipt of the goods.

 

Article 5. Transport and risk.

1. The risk relating to goods to be delivered by us shall pass to the client at the moment the goods leave our depot and/or are presented to the (first) carrier.
2. The method of transport and packaging shall be determined by us. If the client sets specific deviating requirements, the extra costs thereof shall be borne by the client. The client guarantees that the means of transport are able to reach a suitable unloading place, unhindered and by paved roads, at the reasonable discretion of us and/or the carrier.
3. Upon delivery, an unloading hour shall be allotted for each cargo, counting from the moment of arrival during normal working hours. The client may be charged for several unloading hours.
4. We are not obliged to take out insurance for the transport of the goods. At the client’s request, we shall provide all available information required to enable it to take out such insurance.

 

Article. 6. Inspection and complaints.

1. Prior to processing and immediately after delivery, the client is obliged to inspect and test the goods delivered by us (or on our behalf) in terms of quality, dimensions, tolerance and properties (including hue, type and quantity).
2. In case of visible defects, the client’s right to claim that the goods do not comply with the agreement shall lapse if the client does not inform us of such visible defects in writing within five working days of delivery, stating the nature of the defect and the number of products in which the defect was found. If, in retrospect, the client incorrectly claimed that the goods delivered are not in accordance with the agreement, and we have had to incur costs in establishing this, the client shall be obliged to pay these costs to us.
3. The client’s right to claim that the goods do not comply with the agreement shall lapse in case of defects that are not visible at the time of delivery if the client does not inform us of such defects in writing within five days of the date on which it could reasonably have discovered them, stating the nature of the defects and the number of products in which such defects were discovered.
4. For complaints concerning the quantity and scope of the goods delivered, the provisions of Article 4.8 shall apply.
5. Up to the point where we have concluded our investigation of any objections — which we are obliged to do with due haste — the entire batch in relation to which the client has raised objections must be left in its delivery condition, unsorted and unprocessed.
6. The client’s rights as referred to in Articles 6.2 and 6.3 shall lapse in any case after processing of the delivered goods, unless the defects are covered by the warranty issued by us for the goods.
7. The submission of complaints shall not give the client the right to refuse or suspend receipt or payment of the goods. The uncontested part must be paid for in any case. Any recourse to set-off is excluded.
8. In the event of a justified complaint as referred to in Articles 6.2 and 6.3, we shall only be bound by the provisions of Article 11.

 

Article 7. Quality and warranty.

1. If applicable, the content of any warranty provided by us shall be represented exclusively by the text of the warranty drawn up and handed over in the name of the client. As a basic principle, we shall only provide a warranty on the goods delivered by us if and insofar as a warranty is provided by our suppliers. Further warranties are only given if and insofar as they have been expressly agreed in writing.
2. We cannot guarantee the functional suitability of the delivered goods.
3. Any samples, artist impressions and/or models shown or provided shall only serve as an indication of the product without having to match it exactly. The client cannot derive any rights from this. Slate is a natural product, and its properties can vary from quarry to quarry. Differences in colour, structure and quality between slate from different quarries shall be permissible. Samples of natural stone must be considered as general types, so that differences in colour and structure are permissible. If and insofar as nothing has been expressly agreed with regard to quality, the client may only claim a quality level that is in accordance with what is normal and customary in the trade of the item concerned. Pictures, descriptions and advertising material shall not be binding on our part.
4. Any warranty shall lapse or shall not be applicable:

• If the damage is a consequence of poor maintenance;
• If the damage is caused by any cause beyond our control;
• If and for as long as the client has not fulfilled its contractual obligations towards us, particularly in relation to payment. Following fulfilment of these obligations, the warranty shall be revived with retroactive effect.

1. If the client rejects the delivered goods on the basis of any colour differences observed, it must prove that these colour differences are unacceptable to such a degree that we have seriously defaulted on our obligations.
2. Minor deviations in size, colour and surface structure shall never constitute grounds for rejection.
3. Unless otherwise specified, a tolerance of up to 5% is permitted on the total quantity of goods to be delivered due to broken or otherwise faulty slates.
4. If we decide to redeliver the goods, the goods to which the complaint relates must be returned to us.
5. On penalty of forfeiture, the client must hold us liable in writing for warranty claims within a period of one month from the time the defect was discovered or should reasonably have been discovered by a client acting with due care.

 

Article 8. Payment.

1. Unless otherwise agreed, the invoices sent by us to the client must be paid within 30 days of the invoice date. Payment shall be made by transfer to the bank or giro account stated by us in the currency specified on the invoice, including VAT and without set-off. The value date indicated on our bank/giro statements shall be decisive for determining the day of payment.
2. If the amount due according to the invoice has not been paid within the period mentioned in paragraph 1 of this Article, the client shall be in default, without any further demand or prior notice of default being required, and from that moment on, it shall owe interest on the principal amount equal to the statutory (commercial) interest rate plus 2% on an annual basis.
3. If we pass on an unpaid invoice or part thereof to a third party for collection, all judicial and extrajudicial costs related to this shall be borne by the client. The extrajudicial collection costs shall be fixed at 15% of the principal sum, with an absolute minimum of 750.00 EUR excluding VAT. 4. For complaints about the quantity and scope of the goods delivered, the provisions under Article 4.8 shall apply.
4. Even after the agreement has been concluded, we are entitled to demand security from the client if we have good reason to fear that the client may not fulfil its obligations towards us in good time. If and for as long as the client refuses or is unable to provide security in such case, we shall be entitled to demand payment upon delivery, suspend the performance of our obligations or dissolve the agreement. In such case, the client shall be liable for all damages incurred by us.
5. In the event of late payment of an invoice, our claims against the client shall become immediately due and payable without any notice of default being required.
6. Payments made by or on behalf of the client shall serve — in sequential order — to settle the extrajudicial collection costs owed by the client, the judicial costs, the costs owed by the client, the interest owed by the client and then, in order of age, the outstanding principal amounts, regardless of any instructions to the contrary from the client.

 

Article 9. Retention of title

1. All goods delivered and to be delivered by us to the client shall remain our property until the client has fulfilled all its obligations towards us with regard to the delivery concerned.
2. The client shall be entitled to sell or use the goods within the scope of its normal business operations, but shall not be entitled to alienate the goods in any way, to encumber them with a limited security or enjoyment right or to otherwise prevent our recovery of the goods. If the client sells or uses the goods, it is obliged to establish a tacit or public pledge in our favour — at our discretion — to the claims resulting from this sale/use.
3. Our title to the goods shall not be lost as a result of conversion, accession or merger. This shall also extend to any new good that may be formed.
4. If the client is in default with regard to its obligations as referred to in paragraph 1, we shall be entitled to take back the goods belonging to us or have them taken back from the place where they are located, at the expense of the client. The client hereby irrevocably authorises us to enter the premises used by or on behalf of the client for this purpose.

 

Article 10. Force majeure

1. If, as a result of force majeure, we are unable to meet our obligations towards the client, we shall be entitled either to suspend the performance of the agreement for the duration of such force majeure, or to dissolve the agreement in whole or in part without being obliged to pay compensation for damages.
2. If we have already partially fulfilled the agreed obligations when the force majeure occurs, we shall be entitled to invoice the costs incurred, work carried out or goods supplied and the client shall be obliged to pay this invoice as if it were a separate transaction.
3. Force majeure shall in any case include, but not be limited to, strikes, lockouts, excessive absenteeism of staff, impediments in any sense whatsoever on the part of our suppliers, transport difficulties, riots, acts of war, fire, water damage, defects in machinery, disruptions in the supply of energy, government measures including import and export restrictions, sales bans, epidemics and pandemics and related (government) measures/recommendations, collapse of the quarries or other causes which make it impossible to mine slate and all other interruptions to our business or that of our suppliers, as well as non-performance by our suppliers and any circumstance whatsoever which, in all fairness, makes it impossible or difficult for us to execute the agreement (in good time).

 

Article 11. Liability

1. Except for mandatory provisions, we cannot be held liable for damages of any kind that are caused by an intentional act or gross negligence of our subordinates, or third parties engaged by us in the execution of the agreement.
2. We can only be held liable (for whatever reason) for damage suffered by the client that is directly and exclusively the result of our fault, on the understanding that our liability is limited to a maximum of the invoice value excluding VAT of the delivered goods to which the complaints found to be justified relate, or to the redelivery of similar goods, at our discretion. In no case, however, shall any compensation amount to more than the payment made by the insurer. The following restrictions must be observed as part of this:
3. We can never be held liable for consequential losses and direct and indirect trading losses, damage caused by stagnation, delay in construction, loss of orders, loss of profits, processing costs (including the costs of fitting the goods to the project) and so on.
4. We can never be held liable for personal injury, unless such injury is the result of an intentional act or deliberate recklessness.
5. We cannot be held liable if the goods delivered by us are not used, processed and applied by competent persons in accordance with the applicable user and processing instructions.
6. We cannot be held liable for damages resulting from poor maintenance of the delivered goods.
7. We accept no liability for items manufactured following instructions of the client.
8. All claims against us (including any warranty claims) shall lapse after a period of one year from the first submission of the complaint, unless legal action has been commenced before that time. Once a period of five years has passed from delivery of the goods, we can no longer be held liable for any defects whatsoever, except for any obligations arising from an agreed warranty.
9. Our warranty obligations, if any, shall lapse or be suspended by any non, late or incomplete performance by the client. The client may only claim performance of the warranty after payment in full of any outstanding invoices, accrued interest and costs.
10. Advice, designs or proposals provided by or on behalf of us (regarding specifications and/or technical descriptions) or instructions regarding materials, structures, versions and applications are always provided to the best of our knowledge and ability. We can never be held liable for any damage whatsoever arising from such advice, designs, proposals or instructions, except in the case of an intentional act or gross negligence. The client is fully responsible for the correctness of all (technical) data provided by it or on its behalf, and we are not obliged to check this in any way.

 

Article 12. Dissolution.

1. If:
   a. the client does not fulfil any obligation towards us, or does not do so on time or correctly;
   b. the client is declared bankrupt or a request for bankruptcy has been filed, suspension of payment has been requested or granted;
   c. all or part of the client’s property has been seized;
   d. the client has become legally incapacitated by a court order or has been deprived of its freedom to act;
   e. the client is dissolved or liquidated, or, if the client is a natural person, dies;
   f. the client proceeds to cease, or has already ceased, or transfers its business or an important part thereof, including the placement of its business into another business yet to be founded or already existing, and the client has not yet fulfilled all of its obligations towards us;
   g. an application for credit insurance is not honoured or, in our opinion, is insufficiently honoured, we shall be entitled, by the mere occurrence of one of the abovementioned circumstances, without any notice of default or judicial intervention being required, to terminate the agreement and/or claim any amount owed to us by the client in full and/or claim compensation.

1. If we take back the delivered goods, we shall refund the purchase price already paid by the client proportionate to the number and condition of the goods to be returned, taking into account any other sums the client may owe us. The amount to be refunded shall never exceed the price that we would have charged the client on the day of return.

1. In the event of dissolution of the agreement, all amounts due to us for whichever reason from the client shall become immediately due and payable.

 

Article 13. Applicable law, disputes and miscellaneous.

1. All agreements and undertakings to which these conditions apply shall be subject to the laws of the Netherlands. The applicability of the Vienna Convention on the International Sale of Goods is explicitly excluded.

1. Any dispute that may arise between us and the client shall be settled either by arbitration in accordance with the arbitration regulations of the Arbitration Board for the Building Industry as they read at the time when the dispute is submitted, or by the civil court, at our discretion.
2. If a dispute is to be settled by the civil courts, the District Court of Limburg at Roermond shall be competent to hear this dispute.

1. The Dutch text of these general terms and conditions is the only authentic text. In the event of a discrepancy between the Dutch text and a translation into a foreign language, the Dutch text shall prevail.
2. If one or more provisions of the agreement concluded between us and the client — including these general terms and conditions — should prove to be invalid, the other provisions shall remain fully in force. The invalid provisions, if any, shall be replaced by provisions which, with regard to the intention of the parties, approach the invalid provisions as closely as possible.