General Terms & Conditions
General Terms & Conditions
FUNERAL PRODUCTS B.V.
General terms and conditions of Funeral Products B.V., based in Eindhoven, henceforth Funeral Products. These terms and conditions have been filed in the Brabant Chamber of Commerce under file number 17182375.
- Offers and special offers
- Term of the contract. Delivery time. Execution and modification of the contract.
- Suspension, rescission and early termination of the contract
- Force majeure
- Payment and collection expenses
- Reservation of property rights
- Warranty, inspection and claims, period of limitation
- Transfer of risk
- Intellectual property
- Applicable law and resolution of disputes
- Location and modification of the conditions
Art. 1 General
- These conditions apply to any offer, special offer or contract between Funeral Products and a Client for which Funeral Products has declared these conditions applicable, unless the parties have deviated from these conditions expressly and in writing.
- These conditions also apply to any contract with Funeral Products for the execution of which Funeral Products needs to involve third parties.
- These terms and conditions have also been written for the employees and management of Funeral Products.
- Expressly excluded are any conditions of sale or other conditions stipulated by the Client.
- In the event of one or more of the clauses of these terms and conditions being totally or partially null and void at any time, or being rescinded, the remaining clauses of these terms and conditions shall remain applicable in their entirety. In this instance, Funeral Products and the Client shall agree new clauses to replace the null or rescinded clauses, taking into account as far as possible the aim and spirit of the original clauses.
- In the event of there being ambiguity as regards the interpretation of one or more of the clauses of these terms and conditions, the interpretation shall be made in accordance with these clauses.
- In the event of a situation arising between the parties which is not regulated by these terms and conditions, the situation shall be assessed in the spirit of these terms and conditions.
- In the event that Funeral Products does not always demand strict fulfilment of these conditions, this does not mean that the clauses shall not be applied or that Funeral Products in some manner foregoes the right to demand in other instances the strict fulfilment of the clauses of these conditions.
Art. 2 Offers and special offers
- All the offers and special offers from Funeral Products are understood to be no obligation, unless the offer specifies a deadline for acceptance. In this case, the offer shall be valid for sixty (60) days. Offer or special offers are not automatically valid for future orders. An offer or special offer is no longer valid after the specified deadline if the product to which the offer or special offer refers is no longer available.
- Funeral Products shall not be liable for offers or special offers if the Client can reasonably understand that the afore-mentioned offers or special offers, or part of them, contain an error or obvious spelling mistakes.
- The prices shown in an offer or special offer do not include VAT or other legal taxes, or incidental costs incurred within the framework of the contract such as travel expenses, accommodation, postage and administrative costs, unless otherwise specified.
- If acceptance (in secondary points or not) differs from that offered in the offer or special offer, Funeral Products shall not be subject to it. In this case, the contract shall not be undertaken in accordance with the aforementioned differing acceptance, unless Funeral Products specifies otherwise.
- A combined offer does not oblige Funeral Products to execute part of the order for a proportional part of the price shown. Offers and special offers are not automatically valid for future orders.
Art. 3 Term of the contract. Delivery time. Execution and modification of the contract.
- The contract between Funeral Products and the Client is signed for an indefinite period, unless otherwise arising due to the nature of the contract or the parties expressly agree otherwise in writing.
- If a period of time for the supply of specific products has been agreed or indicated, this shall never be a maximum period. When a period expires, the Client shall inform Funeral Products in writing, offering Funeral Products a reasonable period for executing the contract.
- If Funeral Products requires information from the Client in order to execute the contract, the execution period shall not begin before the Client has provided Funeral Products with the complete and appropriate information.
- Supply is effected ex-works by Funeral Products. The Client shall be bound to accept the products at the moment when they are placed at their disposition. If the Client does not accept them or does not provide the information or instructions necessary for supply, Funeral Products may store the products at the expense and risk of the Client.
- Funeral Products has the right to execute the contract in various stages, separately invoicing the part already executed.
- If the contract is executed in stages, Funeral Products may postpone the parts belonging to a later stage until the Client has approved in writing the results of the previous stage.
- If during the execution of the contract it becomes clear that for its correct execution it needs to be modified or complemented, the parties shall adjust the contract in a timely manner and by mutual agreement. If the nature, scope or content of the contract, on the request or indication of the Client or competent authority, etc. or not, is modified and such modification alters the contract from the qualitative and/or quantitative perspective, then this may also have consequences for the original agreement, and the amount originally agreed may be increased or reduced. Funeral Products will aim to provide the corresponding prices in advance. Furthermore, by modifying the contract the execution period originally specified may be modified. The Client accepts the possibility of modifying the contract, including modification of price and execution period.
- If the contract is modified, including any provision added, then Funeral Products shall only be able to execute it after approval by the authorised person at Funeral Products and after the Client has accepted the price and other conditions of execution, including the date to be specified for its execution. The non-execution or non-immediate execution of the modified contract shall not constitute any breach on the part of Funeral Products and nor shall it be grounds for the Client to rescind the contract. Without it being grounds of breach, Funeral Products may reject a request to modify the contract if this might have consequences from the qualitative and/or quantitative perspective on the work to be undertaken or the products to be supplied in this framework.
- In the event of the Client not correctly fulfilling that which they are bound to fulfil with Funeral Products, then the Client shall be liable for any damages (including costs) directly or indirectly suffered by Funeral Products.
- If Funeral Products agrees a fixed price with the Client, then Funeral Products shall be entitled to increase this price at any time without the Client being entitled in this event to rescind the contract on these grounds, if the price increase is the result of a power or obligation in accordance with the law, or a regulation, or due to an increase in the price of raw materials, salaries, etc., or for other reasons that were not reasonably foreseeable at the time of signing the contract.
- If the price increase is not due to a modification of the contract and is greater than 10% and occurs during the three months following the contract being signed, then it shall only be the Client entitled to resort to Article 5, Section 3 of Book 6 of the Dutch Civil Code who shall be able to rescind the contract by means of a written statement, unless Funeral Products is still disposed to execute the contract on the basis of the original agreement, or if the price increase is the result of a power or legal obligation of Funeral Products, or if it has been agreed to undertake the supply in a period of more than three months after the purchase is made.
Art. 4 Suspension, rescission and early termination of the contract
- Funeral Products is entitled to suspend the fulfilment of obligations or to rescind the contract:
- If the Client does not fulfil, does not fully fulfil or does not fulfil in a timely manner the obligations of the contract;
- If after the contract is signed, Funeral Products becomes aware of circumstances which provide sufficient grounds for fearing that the Client will not fulfil their obligations;
- If when the contract is signed the Client is asked to provide a guarantee of fulfilment of contractual obligations and this guarantee is not forthcoming or is insufficient;
- If due to a delay on the part of the Client it is no longer possible to demand that Funeral Products fulfils the contract under the terms originally agreed, Funeral Products may rescind the contract.
- Furthermore, Funeral Products is entitled to rescind the contract if circumstances arise the nature of which prevent the contract from being fulfilled, or if in any other way circumstances arise the nature of which mean the contract cannot justly be demanded to be maintained without modification.
- If the contract is rescinded, then the demands of Funeral Products on the Client shall be immediately enforceable. If Funeral Products defers fulfilment of the obligations, it shall continue to keep its legal and contractual rights.
- If Funeral Products proceeds to suspension or rescission, it shall not be obliged under any circumstances to pay damages and costs that may in any way result.
- If rescission is attributable to the Client, Funeral Products shall be entitled to compensation for damages, including costs, caused directly or indirectly.
- If the Client does not fulfil the contractual obligations and this breach justifies rescission, then Funeral Products may immediately cancel the contract with immediate effect with no obligation on its part to pay any compensation or indemnity, whilst the Client, if in breach, shall be obliged to pay compensation or indemnity.
- In the event of liquidation, (application for) voluntary receivership or bankruptcy, attachment – where the attachment has not been lifted within three months – carried out by the Client, debt amortization or other circumstances due to which the Client may no longer freely dispose of its assets, Funeral Products may rescind the contract immediately and with immediate effect, or may cancel the order or the contract, with no obligation on its part to pay any compensation or indemnity. In this case, the demands of Funeral Products on the Client shall be immediately enforceable.
- If the Client cancels, partially or fully, an order placed, then the Client shall be charged for all the products ordered or prepared for the order, increased by any possible costs of sourcing, transport and delivery, and by the work time set aside for executing the contract.
Art. 5 Force majeure
- Funeral Products is not obliged to fulfil any obligation to the Client if they are prevented from doing so by a circumstance which cannot be attributed to negligence, either according to law, a legal proceeding or generally accepted principles.
- In these terms and conditions, and in addition to what is understood by law and jurisprudence, force majeure is understood as being all external causes, foreseen and unforeseen, over which Funeral Products has no control, but which mean that Funeral Products cannot fulfil its obligations, particularly, but not limited to, any stagnation to the normal progress of affairs in the Funeral Products company or in third parties companies who purchase products or services from Funeral Products, clear changes since the moment of signing the contract in the material circumstances which directly or indirectly affect the factors of cost price or supply options, in addition to fire, damage caused by water, extreme weather conditions, disasters, war and imminent threat of war, terrorist attack or imminent threat of terrorist attack, contagious diseases, government measures, riot, situations of conflict (molest), strikes, exclusions, work-to-rule, defects in machinery or facilities, stagnation in supply or rationing of raw materials, additives or fuel, breach of an obligation by a third party from whom Funeral Products purchases products and/or services. Funeral Products is also entitled to allege force majeure if the circumstance which prevents the (subsequent) fulfilment of the contract occurs after the moment when Funeral Products would have had to fulfil its contractual obligation.
- During the period of force majeure, Funeral Products may defer its contractual obligations. If this period lasts for more than two months, then either party may rescind the contract, with no obligation to compensate the other party for damages.
- Insofar as Funeral Products, at the moment when force majeure occurs, has already fulfilled or can fulfil a part of its contractual obligations, and insofar as the fulfilled part or part yet to be fulfilled have separate value, Funeral Products may invoice separately the part already fulfilled or yet to be fulfilled. The Client shall pay the invoice as if it were a separate contract.
Art. 6 Payment and collection expenses
- Payment shall be made within 14 days of invoice date, by a method indicated by Funeral Products, in the currency used in the invoice, unless other stated by Funeral Products. Funeral Products is entitled to invoice periodically.
- If the Client does not make timely payment of an invoice, then the Client will be legally in arrears. In this case, the Client shall pay a monthly interest of 1%, unless the legal interest rate is higher, in which case they shall pay the legal interest rate. The interest on the amount due shall be calculated from the moment when the Client enters arrears until the moment when the entire amount due has been paid.
- Funeral Products is entitled to use the payment made by the debtor firstly to pay off costs and then to pay off the principal and current interest.
- Funeral Products may, without incurring arrears, reject an offer of payment if the Client indicates a different order for allocating the payment. Funeral Products may reject the total payment of the principal if the interest accrued and accumulated and the collection expenses are not paid at the same time.
- The Client may never offset the amount owed to Funeral Products.
- Any complaint on irregularities in the invoice shall be notified in writing to Funeral Products within five (5) working days of the invoice date. Complaints regarding the amount of an invoice do not defer the obligation to pay. The Client who is not entitled to appeal pursuant to section 6.5.3 (articles 321 to 247 Book 6 of the Dutch Civil Code [BW]) may not defer payment of an invoice for any other reason.
- Funeral Products reserves the right to demand advance payment of all or part of the price agreed.
- If the Client is in breach or in arrears as regards the (timely) fulfilment of its obligations, then all reasonable costs of obtaining payment by extra-judicial means shall be met by the Client. Extra-judicial costs are calculated on the basis of usual practice in Dutch collection of payments, i.e. currently the method of calculation according to the Rapport Voorwerk II (Report on Preliminary Works II). However, if Funeral Products has incurred collection costs higher than those reasonably necessary, then the costs actually disbursed shall be reimbursed. Any possible judicial costs and execution costs incurred shall also be paid by the Client. The Client shall also pay interest on the payment collection expenses owing.
Art. 7 Reservation of property rights
- All the products supplied by Funeral Products within the framework of the contract remain the property of Funeral Products until the Client has fulfilled all the obligations of the contract(s) signed with Funeral Products.
- The products supplied by Funeral Products, which in accordance with section 1 are under reservation of property rights, may not be resold and may never be used as a means of payment. The Client cannot pledge products included in the reservation of property or encumber them in any other way.
- The Client shall always do what can be reasonably expected of them to ensure the security of the property rights of Funeral Products.
- In the event that third parties seize products supplied under reservation of property rights or wish to establish or enforce rights over them, then the Client shall be obliged to inform Funeral Products of this situation immediately.
- The Client undertakes to insure and keep insured against fire, damage caused by water or explosion, or theft, the products supplied under reservation of property rights and, on the first request shall provide the policy to Funeral Products for inspection. In the event of a payment being received from insurance, Funeral Products shall be entitled to this money. The Client undertakes in advance to cooperate with Funeral Products as far as possible in everything that is (or may be) necessary or desirable in this area.
- In the event that Funeral Products wishes to exercise the property rights described in this article, the Client grants in advance their unconditional and irrevocable permission to Funeral Products and to third parties named by Funeral Products to access all areas where property of Funeral Products are held and to remove them.
Art. 8 Warranty, inspection and claims, period of limitation
- The products to be supplied by Funeral Products comply with the usual requirements and standards that can reasonably be required at the time of supply and for which intended for normal use in the Netherlands. The warranty cited in this article applies to products intended for use in the Netherlands. In the event of use outside the Netherlands, the Clients themselves shall check that use is appropriate there and that the products comply with the relevant requirements. In this case Funeral Products may establish other warranties and conditions for the products to be supplied or the work to be undertaken.
- The warranty cited in section 1 of this article is valid for a period of one year from time of supply, unless the nature of the supply requires otherwise or the parties have agreed otherwise. If the warranty given by Funeral Products refers to a product which has been supplied by a third party, then the warranty is limited to what is granted for it by the manufacturer of the product, unless otherwise indicated.
- Any form of warranty is cancelled if a defect occurs due to or as a result of:
- unsuitable or improper use;
- unsuitable storage or maintenance by the Client and/or by third parties;
- if, without written permission from Funeral Products, the Client or third parties have made or attempted to make modifications to the product;
- if other products are attached to the product which must not be attached to it, or if the other products have been treated or made in a manner differing from the prescribed manner;
- if the defect has been caused by or as a result from circumstances over which Funeral Products has no control, including weather conditions (such as for example, but not limited to, heavy rains or extreme temperatures), etc.
- The Client is obliged to examine / have examined what is supplied immediately at the moment when the products are placed at their disposition or at the moment when the relevant work has been carried out, respectively. Furthermore, the Client shall check that the quality and/or quantity of what is supplied matches what was agreed and complies with the requirements agreed by the parties in this respect. Any visible defect shall be notified in writing to Funeral Products within seven (7) working days of delivery. Any defect not visible shall be notified in writing to Funeral products immediately upon detection, but in all events within seven (7) working days. The notification shall include the most fully detailed description possible to enable Funeral Products to address the matter appropriately. The Client shall give Funeral Products the opportunity to investigate / have investigated a complaint.
- If the Client submits a timely complaint, this does not defer their payment obligation. In this instance the Client shall also be obliged to purchase and pay for the other products ordered.
- In the event of the defect not being notified in time, the Client shall not be entitled to repair, replacement or compensation.
- If a product is proved to be defective, if this has been notified in a timely manner and the type of defect is covered by the warranty, Funeral Products shall replace the defective product or have it repaired or pay the Client a sum for replacement, within a reasonable period after the product has been returned and received or, if return is not reasonably possible, through notification from the Client in writing of the defect, at the discretion of Funeral Products.
- If it is established that there are no grounds for complaint, then all the costs incurred, including investigation costs incurred by Funeral Products, shall be paid by the Client.
- After the warranty period has expired, all costs of repair or replacement, including administrative, postage and collection costs, shall be invoiced to the Client.
- By contrast with legal periods of limitation, the period of limitation for all complaints and defence for Funeral Products and third parties involved in the execution of a contract is one (1) year.
Art. 9 Liability
- In the event of Funeral Products being liable, said liability shall be limited to that established in this clause.
- Funeral Products does not accept liability for damages, of whatsoever nature, caused by the fact that Funeral Products has relied on incorrect and/or incomplete information supplied by or on behalf of the Client.
- In the event of Funeral Products being liable for any whatsoever damages, the liability of Funeral Products shall be limited to, as a maximum, two times the value of the order invoice, at least for the part of the order to which liability refers.
- In all events the liability of Funeral Products shall be limited to the amount paid by insurance, when applicable.
- Funeral Products assumes exclusive liability for direct damages.
- Direct damages are understood as being exclusively costs reasonably incurred for corroborating the cause and extent of the damages, provided that this corroboration relates to damages in accordance with these conditions, possible reasonable expenses incurred to remedy the faulty execution of the contract by Funeral Products provided that these can be attributed to Funeral Products, and also the reasonable costs incurred in preventing or limiting damages on condition that the Client demonstrates that these costs led to limiting direct damages as interpreted in these terms and conditions.
- Funeral Products does not accept liability for indirect damages, including consequential damages, loss of profits, loss of savings and loss through business stagnation.
- The limits of liability included in this article are not valid if the damages are caused by fraud or gross malpractice by Funeral Products or its subordinates.
Art. 10 Transfer of risk
- The risk of loss, deterioration or depreciation passes to the Client from the moment of supply of products or from the moment when supply must take place in accordance with the contract.
Art. 11 Safeguard
- The Client shall indemnify Funeral Products for any possible liabilities to third parties who suffer damages the cause of which is attributable to parties other than Funeral Products.
- In the event of Funeral Products for this reason being made liable by third parties, then the Client shall be obliged to assist Funeral Products both externally and judicially and immediately to do all that can be expected in this instance. If the Client does not take the appropriate measures, then Funeral Products may take them themselves without prior notice. All the resulting costs and damages caused to Funeral Products and third parties shall be at the expense and risk of the Client.
Art. 12 Intellectual property
- Funeral Products reserves the rights and powers corresponding to them under the Law on Intellectual Property (Auteurswet) and other intellectual property laws and regulations. Funeral Products is entitled to use the knowledge acquired through execution of a contract for other ends, provided that none of the Client’s strictly confidential information is made known to third parties.
Art. 13 Applicable law and resolution of disputes
- For any dispute in which Funeral Products is involved, Dutch law exclusively shall be applied, also if a contract is executed wholly or partially abroad or if the party involved in the legal relationship is domiciled there. The Vienna Convention is not applicable.
- The Court where Funeral Products is based is the only Court competent in litigation matters, unless the law prescribes otherwise in a binding manner. However, Funeral Products may submit the dispute to the competent Court according to the law.
- The parties shall only resort to the Court after having done their utmost to solve the dispute by mutual agreement.
Art. 14 Location and modification of the conditions
- These conditions have been filed in the Brabant Chamber of Commerce under file number 17182375.
- The most recent version is always applicable or, where appropriate, the version which was in force at the time of the establishment of the legal relationship with Funeral Products.
- The Dutch version of the terms and conditions shall always prevail for their interpretation.