General terms and conditions Stimulan B.V.
In these General Terms and Conditions the following definitions shall apply:
Stimulan: Stimulan B.V. or a dealer of Stimulan B.V.
Customer: any natural person or legal entity who has entered or wishes to enter into an Agreement with Stimulan, as well as for whom Stimulan makes or will make deliveries and performances and for whom an offer has been received from Stimulan.
Agreement: every oral and written agreement entered into between the Customer and Stimulan and all supplements and amendments thereto. It also includes all legal acts relating to this Agreement.
ForFarmers Group: all entities that are part of or affiliated with the ForFarmers Group B.V.
These General Terms and Conditions apply to all legal relationships between the Customer and Stimulan, including but not limited to Agreements, offers, services and quotations of or with Stimulan, even if not (further) specified, unless the parties have expressly agreed otherwise.
These General Terms and Conditions may also be invoked by employees of Stimulan and by third parties engaged by Stimulan.
3. Offer and acceptance
Offers by Stimulan are without obligation, unless otherwise stated in writing. The offers are based on the data known to Stimulan at the time the offer was made.
Agreements come into effect through written confirmation by Stimulan or through the commencement of actual performance by Stimulan.
Changes in the Agreement and/or deviations from the General Terms and Conditions are only effective if they have been agreed in writing or have been confirmed in writing by Stimulan. If deviations and/or amendments lead to an increase in costs, Stimulan is entitled to pass these on to the Customer.
All prices stated in offers and/or Agreements are fixed and exclusive of turnover tax.
If after the conclusion of the Agreement an increase in the cost price occurs, Stimulan is entitled to pass on this increase to the Customer or to dissolve the Agreement without compensation.
In case of delivery carriage paid the products are for the account and risk of the Customer at the time of unloading. The Customer must ensure proper receipt materials, storage facilities and unhindered and risk-free access to those storage facilities.
Stimulan is entitled to deliver in parts. In case of an Agreement in which a period and/or price has been fixed, purchase should take place in proportion to the agreed period.
If Stimulan cannot deliver products to the Customer because the Customer does not purchase these products, Stimulan shall be entitled to:
all this at the expense and risk of the Customer. Any resulting damage shall be borne by the Customer.
Stated or agreed delivery times are never to be considered as deadlines, unless explicitly agreed otherwise.
Payment to Stimulan should be made before the due date stated on the invoice, without set-off, discount and/or suspension, by payment into a bank or giro account to be specified by Stimulan.
If payment has not been made within the agreed due date, the Customer shall be in default by operation of law without further notice of default and all payment obligations of the Customer towards Stimulan shall become immediately due and payable. From that moment statutory interest plus 2% per (part of a) month shall be due on the principal amount due, as well as all costs falling due on the collection of its claim, including judicial and extrajudicial costs. For the extrajudicial collection costs, 15% of the principal sum due will be charged, with a minimum of € 10,000.
If the stated due date in article 6.1 is not met, Stimulan shall have the right to:
Consider the Agreement as dissolved;
Stop all deliveries under Agreements with the Customer until a payment has been received. The costs of storage shall be borne by the Customer.
Stimulan hereby retains the right to full compensation.
Payments after the due date by or on behalf of the Customer shall be applied successively to payment of the extrajudicial collection costs due by the Customer, judicial costs, interest due and thereafter in order of age of the outstanding claims, regardless of any indication to the contrary by the Customer.
At Stimulan's request, the Customer is obliged to cooperate in the advance payment of products and/or services and/or to provide sufficient security for the fulfilment of the (payment) obligations of the Customer.
Stimulan or an entity that is part of the ForFarmers Group is authorized to deduct claims that the Customer owes or will owe in the future from claims the Customer has against Stimulan or an entity that is part of the ForFarmers Group.
The Customer may only object to the invoice within the payment term.
7. Duty to investigate and advertising
Upon delivery the Customer must thoroughly and competently examine whether the goods comply with the Agreement. The Customer must notify Stimulan in writing, stating reasons, within 7 days after delivery, or at least within 7 days after detection was reasonably possible, but not later than 6 months after delivery. If this is not the case, the Customer's right of complaint lapses. If the Customer objects to the manner in which the Agreement has been implemented by Stimulan, the Customer must immediately notify Stimulan in writing upon delivery of the product or upon rendering of the service or upon delivery.
If complaints have not been timely communicated in writing, the Customer is deemed to have agreed to the delivered products and/or services.
Deviations and differences falling within a production or weight tolerance that is reasonable according to commercial practice shall not be regarded as shortcomings.
A complaint as referred to in article 7.1. shall not suspend the Customer's payment obligation.
If the delivered product and/or service does not comply with the Agreement, Stimulan shall only be obliged to replace the product concerned or to grant a pro rata discount on the price. This is at the sole discretion of Stimulan.
Return shipments will only be accepted after Stimulan has given its prior written consent.
8. Retention of title
Stimulan reserves the title to the products delivered by it. If an invoice from Stimulan relating to products delivered is not paid in due time, or Stimulan has a claim on the Customer for failure to fulfil an Agreement, Stimulan has the right to reclaim the products delivered by it as its property.
In case Stimulan wishes to exercise the retention of title, the Customer hereby grants to Stimulan or designated third parties an irrevocable authorisation to enter all such places where property of Stimulan is located and to repossess such products.
The Customer is prohibited from transferring, alienating, pledging or otherwise encumbering the products outside his actual control as long as the ownership of the delivered products has not passed to the Customer. The Customer is entitled to sell the products delivered under retention of title in the ordinary course of its business. The Customer must only deliver these goods under the condition of the relevant retention of title.
9. Dissolution, force majeure and release
If the Customer fails to comply, fails to comply properly or fails to comply on time with any obligation arising for him under the Agreement, as well as in case of bankruptcy, suspension of payment, receivership, cessation or liquidation of the Customer's company, Stimulan has the right, without any obligation to pay damages and without prejudice to its rights, to dissolve the Agreement in whole or in part or to suspend further implementation of the Agreement. In such cases Stimulan shall be entitled to claim immediate payment of the outstanding claim.
If Stimulan, through circumstances beyond its will and/or fault, cannot fulfil an Agreement, cannot fulfil it in time or cannot fulfil it properly, this shall be deemed Force Majeure for Stimulan. In such case Stimulan shall not be liable for any damage resulting from the non-, untimely or improper fulfilment of the Agreement.
Should damage arise in connection with the performance of an Agreement entered into with Stimulan, Stimulan shall not be liable for the damage if it was caused by:
A mandatory government act;
Uncharged services and/or advice;
Customer supplied incorrect and/or incomplete data on which Stimulan has relied;
Use of products and/or services contrary to instructions and/or advice given by Stimulan.
If the damage was caused by a defective product as supplied by Stimulan or by a defective service or advice charged by Stimulan, Stimulan's liability shall be limited to the amount paid out in the case concerned under its liability insurance(s) taken out, increased by the amount of the deductible which according to the policy conditions is not for the account of insurers. If, for whatever reason, no insurance payment takes place, Stimulan's liability shall be limited to a maximum of the invoice value of the product or service or advice concerned, however, with a maximum of € 45,000.
Notwithstanding the statutory limitation periods, the limitation period for all claims and defences for damages on account of liability of Stimulan in respect of defects in goods delivered, against Stimulan and the third parties involved by Stimulan in the implementation of an Agreement, is one year.
11. Miscellaneous and applicable law
The nullity or invalidity of a provision of the Agreement shall not result in the entire Agreement being null or invalid. Instead of the void or invalid provision, the parties shall agree on a suitable arrangement, which comes as close as legally effective to the intention of the parties and the economic result sought by them.
The administration of Stimulan serves as full proof, subject to evidence to the contrary from the Customer.
All agreements with Stimulan are governed by Dutch law. Reliance on the provisions of the Vienna Sales Convention is excluded. The competent court in the district of Zutphen has jurisdiction to hear disputes. However, Stimulan reserves the right to sue the contracting party at its principal place of business.
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