General terms and conditions retail
Clause 1
In these terms and conditions, the following terms have the following meanings:
a. General Terms and Conditions : these general terms and conditions.
b. Buyer : the purchaser or buyer who enters into or wishes to enter into a Contract with the Seller or for whom the Seller makes an offer or performs a delivery of Products.
c. Contract : the contract between the Seller and the Buyer, including the General Terms and Conditions and all orders placed by the Buyer with the Seller.
d. Products : all goods offered by the Seller, in whatever form and however named, which the Seller provides for or on behalf of the Buyer.
e. Seller : the private limited liability company GEBR. EIJFFINGER B.V., having its registered office in Zoetermeer, the Netherlands, and its principal place of business at Heliumstraat 100 in (2718 SL) Zoetermeer, the Netherlands, listed in the commercial register of the Chamber of Commerce under number 27242722.
APPLICABILITY
Clause 2
1. These General Terms and Conditions apply to all offers, proposals, discussion papers and quotations of the Seller, order confirmations, Contracts, however named, and to all legal transactions and other acts between the Seller and the Buyer.
2. Deviations from or additions to these General Terms and Conditions are valid only if expressly agreed in writing.
3. The applicability of any general terms and conditions used by the Buyer is expressly rejected by the Seller.
4. In case of any discrepancy between the Contract and the General Terms and Conditions, the Contract will prevail.
5. These General Terms and Conditions also apply for the benefit of any person employed by the Seller, any person engaged by the Seller and any person for whose acts or omissions the Seller is or may be liable.
6. If any provision of these General Terms and Conditions is null and void or otherwise unenforceable, this will not affect the validity of the other provisions of these General Terms and Conditions and/or the Contract between the Seller and the Buyer, and the Seller and the Buyer will enter into consultations to agree on a new provision to replace the null and void/unenforceable provision, taking the objective and purport of the null and void/unenforceable provision into consideration as much as possible.
7. The Seller is entitled to unilaterally amend these General Terms and Conditions. If these General Terms and Conditions are amended, the Seller will inform the Buyer accordingly in writing. The Buyer agrees to these amendments in advance so that the amended General Terms and Conditions will apply to all Products supplied by the Seller after notification of the amended General Terms and Conditions.
QUOTATIONS AND CONTRACT FORMATION
Clause 3
1. All quotations and offers issued by the Seller are free of obligation, unless the quotation expressly states otherwise. If the offer made in the quotation is not accepted within the term for acceptance (period of validity of the quotation), the offer contained in the quotation will be deemed to have been rejected and the Seller will be entitled to change the conditions and prices included in the offer.
2. The Seller may withdraw a quotation, even if irrevocable, if the notice of withdrawal reaches the Buyer before or at the same time as the acceptance.
3. Contracts, however named, are formed only after express written acceptance/confirmation by the Seller in which the Seller is duly represented by an authorised officer, or after the Seller commences performance.
4. If the Buyer provides information to the Seller, the Seller may assume that this information is accurate and complete and will base its offer on that information.
5. Any acceptance that deviates from the quotation in any way will be deemed a new offer and a rejection of the original offer.
6. Descriptions and illustrations of the Seller’s Products, price lists, brochures, quotations and other information concerning the Seller’s Products are as accurate as possible, though free of obligation, unless the quotation expressly states otherwise. The Seller will exercise due care when informing the Buyer about the quantity, dimensions, weight and other features of the Products, but the Seller cannot guarantee that these are free of discrepancies, including but not limited to weaving errors, minor deviations in colour and texture. Examples shown or provided are only indications of the respective Products.
PURCHASE PRICE AND VAT
Clause 4
1. All agreed prices are in EUR and are exclusive of VAT and, unless otherwise agreed, exclusive of transport, insurance and other costs or taxes.
2. The prices stated in the Contract or price list are based on the price-determining factors applicable at the time of the order.
3. The Seller reserves the right to increase the agreed prices after the conclusion of the Contract but before delivery of the Products, if prices and/or rates of price-determining factors, including but not limited to energy prices, wages, materials, currency differences, import duties, taxes, levies and insurance rates increase, due to whatever cause.
4. The Seller will notify the Buyer in writing in good time if and in so far as it exercises the right referred to above to implement price changes.
PAYMENT AND COLLECTION
Clause 5
1. Unless stipulated otherwise, the Buyer is obliged to pay the invoices upon delivery but no later than within 30 days, without any right to discount, deduction or set-off, including in bankruptcy. Payments or partial payments received are treated as payment on the oldest outstanding invoices. The Buyer is not entitled to suspend their payment obligations.
2. Invoices will be deemed accepted and approved by the Buyer if the Seller has not received an objection by registered letter within five (5) days from the invoice date. Contestation of the correctness or objection to an invoice will not suspend the Buyer’s payment obligation.
3. If the Buyer fails to make payment before the expiry of the time limit mentioned in this Clause, the Buyer will be in default by operation of law, without any other notice of default being required from the Seller. As from the moment of default, the Seller will also be entitled to:
a. Payment of the satutory commercial interest due from the day of default until the day that full payment is received by the Seller ; and
b. All judicial and extrajudicial collection and other costs, both internal and external, actually incurred by the Seller - as claimant or defendant.
4. If the Buyer fails to perform any obligation arising for them from the Contract, or fails to do so on time or properly, or if the Buyer becomes insolvent, goes bankrupt or is granted a suspension of payments, or if the Buyer is forced to shut down or liquidate their business, all obligations of the Buyer to the Seller will be immediately due and payable.
DELIVERY
Clause 6
1. The dates, given as times of delivery of the Products, are for reference only. If the Seller exceeds the agreed delivery period, this will not result in default or breach of contract, nor in any liability towards the Buyer, and will not entitle the Buyer to dissolve the Contract.
2. The risk in the purchased goods passes to the Buyer at the time of delivery.
3. Unless otherwise agreed, all deliveries will take place Ex Works Zoetermeer (Incoterms 2020). Unless otherwise discussed, delivery takes place at the time the Seller has notified the Buyer that the Products purchased are available to the Buyer at the Seller’s warehouse. Loading will take place at the Buyer’s risk and expense.
4. The Buyer must collect the goods from the warehouse within seven days of delivery. If this term is exceeded, the Seller may store the goods elsewhere at the Buyer’s expense. If, after a reminder by the Seller, the Buyer does not take delivery of the goods within three months of delivery, the Seller may dissolve the Contract. In that case, the Seller may offset the refund of the purchase price (if paid) against the storage costs incurred and the depreciation of the goods since delivery.
5. In case of delivery by the Seller, delivery costs may be charged.
6. The Seller reserves the right to deliver the Products sold in parts, in which case each partial delivery will be invoiced separately. The costs for the phased delivery will in any case be borne by the Buyer.
RETENTION OF TITLE
Clause 7
1. The Products delivered will remain the Seller’s property until the Buyer has paid all amounts, including interest and costs, due to the Seller under the Contract or otherwise.
2. The Buyer will store the Products delivered by the Seller separately and in a manner that leaves them clearly identifiable, and will insure them against damage and theft for as long as these items remain the Seller’s property.
3. The Buyer may, in the normal course of their business, use and alienate, but not encumber, the Products delivered by the Seller, provided that the Buyer notifies the transferee of the retention of title.
4. The Seller has the right, without further notice of default or judicial intervention being required, to take back and store the goods delivered under retention of title at the Buyer’s expense and with the Buyer’s full cooperation if there is a reasonable expectation that:
a. The Buyer will fail to perform their obligations under the Contract or on any other ground, for example in the event of late payment ;
b. A third party will attach any property or assests of the Buyer ;
c. The Buyer will be granted a suspension of payments ;
d. The Buyer will be declared bankrupt or a petition for their bankruptcy will be filed ;
e. The Buyer will enter into a payment arrangement with one or more of their creditors.
COMPLAINTS, EXCHANGES AND RETURNS
Clause 8
1. The Buyer is obliged to examine upon delivery whether the delivered goods comply with the Contract.
2. Complaints of the Buyer must be submitted to the Seller in writing within the following time limits:
a. Complaints concerning incorrect or incomplete execution of an order: within ten (10) calendar days after delivery ;
b. Complaints concerning an externally visible defect in delivered Products: immediately after delivery by written notification accompanied by photographs ; and
c. Complaints concerning a defect in the Products that is not externally visible: within thirty (30) calendar days after delivery by written notification accompanied by photographs.
3. If the Buyer does not comply with the time limit for lodging a complaint, the Buyer will be deemed to have accepted the delivered Products, and any claim by the Buyer against the Seller
regarding defects in the delivered Products will lapse,
notwithstanding any guarantees given by the Seller.
4. Submitting a complaint does not release the Buyer from their payment obligations.
5. If the Seller believes that a complaint is well-founded, the Seller will only be obliged to deliver what is missing, or to repair or replace the defective Products, in exchange for the return of the goods concerned, such at the Seller’s discretion. In case of repair or replacement, all other costs related to the repair or replacement, including but not limited to labour costs or other costs related to the repair, will be at the Buyer’s risk and expense.
6. The Buyer may only return defective Products if the Seller has agreed to this in writing and if the defective Products are still in their original packaging. The Buyer is obliged to follow the Seller’s instructions regarding the storage or return of the Products. These returns are entirely at the Buyer’s risk and expense.
7. The Buyer will in no case be entitled to repair or replacement of a Product if (1) the Buyer has proceeded to process the relevant allegedly defective Product while the Buyer could have detected the alleged defect in the Products by simple inspection, (2) if this could not have been detected by simple inspection, has continued processing after the first processed results could be assessed, or (3) if there are deviations in the colours and properties of the delivered Products which are unavoidable due to inspection by artificial light or due to technically unavoidable deviations.
WARRANTY
Clause 9
1. The Seller will deliver the Products whose description meets the requirements set out in the Contract. Unless the Seller and the Buyer have expressly agreed otherwise, Products are not fit for a particular purpose and do not possess special qualities, and the Seller will not be liable for any lack of conformity of the Products.
2. Without prejudice to the provisions of this Clause 8, the warranty will in any case not cover defects, and the Buyer cannot make a claim under the warranty for defects which occur in, or are wholly or partly the result of:
a. Slight deviations in quality, size, colour, design or report length, weight or finish of the Products ;
b. Failure to observe processing or maintenance instructions ;
c. Improper use of the Products other than for their intended normal use ;
d. Normal wear and tear ;
e. Damage caused by improper use of the Products or exposure to certain damage-causing circumstances, including but not limited to water and fire ;
f. Items, materials or methods applied or provided for processing at the Buyer's request ;
g. The Seller's application of any government regulation regarding the nature and quality of the materials used.
3. The Seller will – at the Seller’s discretion – repair or replace the defective Products covered by the warranty in exchange for the return of the relevant Products, or give a price reduction or send a credit note. In case of repair or replacement, all other costs related to the repair or replacement, including but not limited to labour costs or other costs related to the repair, will be at the Buyer’s risk and expense.
4. The guarantee will lapse if the Buyer fails to fulfil their obligations under the Contract and/or these General Terms and Conditions.
5. Reliance on the warranty provision does not release the Buyer from their obligations under the Contract and/or these General Terms and Conditions.
6. Except as expressly set out in these General Terms and Conditions and/or the Contract, the Seller provides no warranty, explicit or implicit, of any kind, including but not limited to any warranty as to the procurability or suitability for a particular purpose, any warranty against infringement of any third party’s intellectual property rights, whether explicitly or implicitly arising from the law (compliance) procedure, method of implementation, commercial practice or otherwise. The Buyer confirms that, at the time of entering into the Contract, they have not relied on any warranty from the Seller other than the warranty expressly set out in the Contract and/or these General Terms and Conditions, and the Buyer took into account the absence of any warranty at the time of entering into the Contract.
7. The Buyer will provide the Seller with all information that the Seller needs to properly perform its services, free of charge, correctly, on time, completely and in the manner required by the Seller. The Seller cannot be obliged to commence performance of the Contract before it has received all information necessary for this purpose from the Buyer. The Buyer is obliged to inform the Seller immediately in writing of any facts and circumstances that may be relevant to the performance of the Contract. The Buyer guarantees the accuracy, completeness and reliability of the information and documents made available to the Seller, even if they belong to third parties, and declares that they may lawfully dispose thereof.
8. The Buyer will indemnify the Seller against any damage and costs, including lost sales and profits as a result of the failure to perform the Contract, or the failure to do so in time or completely, as a result of or in connection with a failure to comply with the provisions of paragraph 7 of this clause.
LIABILITY
Clause 10
1. To the extent permissible under applicable law and unless otherwise agreed between the Buyer and the Seller, the Seller will only be liable to the Buyer if the Buyer proves that they have incurred a loss due to a material error on the part of the Seller which would have been avoided in the exercise of due care and only for the direct loss which is the direct and immediate consequence of that material error, notwithstanding deliberate intent or deliberate recklessness on the part of the Seller.
2. Under no circumstances will the Seller be liable for indirect loss, including but not limited to loss of profit, loss of goodwill or loss
of relationships as a result of, among other things, any delay, loss
of data, lost savings, loss due to business stagnation, loss caused by deliberate recklessness of agents, etc., however called and by whomsoever suffered.
3. If, despite the provisions of this clause, the Seller is held liable by the Buyer for loss incurred by the Buyer, such loss will in any case be limited at most to the amount paid out by the Seller’s insurer in respect of the relevant event.
4. The Seller will not be liable for defects resulting in whole or in part from a method of processing prescribed by the Buyer or continuation of processing after the Buyer could have discovered defects in the Products, or from a design or method of manufacture prescribed by the Buyer, or caused in whole or in part by a supplier, consultant, subcontractor or agent prescribed by the Buyer. The Seller will also not be liable for damage or loss caused by deliberate intent or deliberate recklessness of the end user or any person who gained access to the Products.
5. The Seller may always offset an obligation to pay damages against unpaid invoices and the interest and costs arising therefrom.
6. The Buyer will indemnify the Seller against all claims by third parties for compensation of damage, or other claims, which are directly or indirectly related to the performance of the Contract between the Seller and the Buyer.
7. If, despite the provisions of this clause, the Seller is held liable in court for loss or damage incurred by the Buyer, such liability will in any case, on whatever grounds, be limited to the amount received by the Seller from the Buyer for the Products.
8. Claims for payment of damages will expire one year after the day on which the Buyer became aware of the loss or damage and the Seller’s possible liability for said loss or damage.
INTELLECTUAL PROPERTY RIGHTS
Clause 11
1. The Buyer acknowledges that the Seller is the sole and exclusive right holder with regard to all claims to current and future intellectual property rights in relation to its services and Products, all data, designs, working methods, presentations, advice, software, files, models, documents, including but not limited to offers, quotations, explanations, questionnaires and protocols (the Intellectual Property Rights) developed and/or made available and/or used under the Contract and/or on the instructions of the Buyer. The Intellectual Property Rights include, but are not limited to, patents, utility models, supplementary protection certificates, trade and service marks, design rights, trade names, service names, copyrights, rights in the form of copyrights, geographical indications, tenancy rights, lending rights, moral rights, database rights and domain names used and/or created during the Contract.
2. These General Terms and Conditions and the Contract do not involve a transfer of any intellectual property right or other right.
3. The Buyer is expressly prohibited from making any Intellectual Property Rights available to a third party, and from reproducing, publishing or exploiting them, with or without the involvement of third parties, unless the Seller has given its prior written consent to do so.
4. If a third party infringes the Seller’s Intellectual Property Rights, the Buyer will immediately notify the Seller of this in writing. The Buyer will provide all documentation and information relating to the Intellectual Property Rights at the Seller’s first request and provide all requested cooperation.
FORCE MAJEURE
Clause 12
1. The Seller will not be liable or responsible to the Buyer, nor will the Seller be deemed to be in default or in breach of any provision under the Contract and/or these General Terms and Conditions for any failure or delay in fulfilling or performing any term of the Contract and/or these General Terms and Conditions if such failure or delay is caused by, or results from, acts or circumstances that are unforeseeable and beyond the Seller’s control (Force Majeure). Force majeure will be deemed to exist in all those circumstances which prevent the Seller from performing the Contract or any part thereof or make it impossible or unreasonably burdensome for it to do so, if such circumstances occur beyond the Seller’s reasonable control, including, but not limited to, (internet) disruption, fire, power failure, flood, strikes, labour unrest, sickness of personnel, war (whether declared or not), terrorism, embargoes, blockades, legal restrictions, riots, government measures in the broadest sense relating to the supply of Products, cybercrime, delay in the delivery of Products/data or services by suppliers or agents. In the event of Force Majeure, the Seller will notify the Buyer immediately after the circumstance of Force Majeure has occurred, stating the nature of the Force Majeure, the date on which the Force Majeure will start or started and, if possible, the expected duration.
2. In the event of Force Majeure, the Seller will be entitled to terminate the Contract, in whole or in part, with immediate effect by giving written notice thereof to the Buyer, if the context of the failure to perform reasonably justifies immediate termination of the Contract and the event of Force Majeure continues for more than 30 days. In the event of dissolution of the Contract by the Seller on the grounds of Force Majeure, the Buyer will not be entitled to any form of compensation in respect of the termination.
TERMINATION OF THE CONTRACT
Clause 13
1. The Seller will be entitled to immediately terminate the Contract before the end of the term in the event that the Seller is unwilling on reasonable grounds to carry out the order according to the instructions given by the Buyer and the Buyer nevertheless enforces those instructions, or on the basis of any other compelling reason, without the Seller being liable to pay any penalty or compensation.
2. In the event of termination by notice pursuant to the provisions of paragraph 1 of this clause, the Seller will be entitled to compensation for the expenses already incurred, the Products and expenses that the Seller will have to incur in the six (6) months following termination by notice, including but not limited to expenses of certain third-party services that the Seller could not reasonably have avoided in full and could no longer cancel free of charge.
3. The Seller has the right to dissolve the Contract in whole or in part or to suspend its obligations under the Contract, or any other contract with the Buyer, with immediate effect and without further notice of default from the Seller and/or judicial intervention being required, notwithstanding all other rights the Seller has (including rights to performance and/or compensation), if:
a. The Buyer acts in breach of any provision of the Contract and/or these General Terms and Conditions fails to remedy the same within fourteen (14) days of a written demand to that effect from the Seller.
b. The Buyer applies for or is granted a provisional or definitive suspension of payments ;
c. The Buyer files for bankruptcy or is declared bankrupt by the District Court ;
d. The Buyer's business is liquidated ;
e. The Buyer proposes a debt composition to their creditors ;
f. A sustantial part of the Buyer's business assets is seized under pre-judgment attachment or attachment in execution ;
or
g. The Buyer's business or a substantial part thereof is sold to a third party.
4. If the Contract is dissolved pursuant to paragraph 3 of this clause, any claim the Seller may have against the Buyer will become immediately due and payable and the Seller will have the right to compensation of all direct, indirect and consequential losses, including lost profit, without prejudice to any other legal rights to which it is entitled as well as its other rights under the Contract and these General Terms and Conditions, without the Seller being liable to pay any compensation or render any performance.
PERSONAL DATA PROTECTION
Clause 14
1. The Seller collects and processes information about the Buyer and the Buyer’s officers, employees, associates or representatives (personal data) in connection with the management of the Seller’s relationship with the Buyer and the performance of the Contract. The Buyer agrees that the Seller processes the personal data for those purposes. The Buyer also agrees that the Seller may disclose personal data to its suppliers or to third parties, if this is necessary for the aforementioned purposes. The Buyer will indemnify the Seller and hold it harmless against claims by third parties in connection with the provisions of this clause (including any claims by the aforementioned officers, employees, relations or representatives and/or regulators and authorities).
ADVANCE PAYMENT /
PROVISION OF SECURITY
Clause 15
1. The Seller will at all times be entitled to require advance payment or security from the Buyer prior to delivery or further delivery. If the Buyer fails to provide the required advance payment or security, any obligation to deliver on the part of the Seller will lapse, without prejudice to the Seller’s right to compensation from the Buyer for all losses, costs and interest.
APPLICABLE LAW / COMPETENT COURT
Clause 16
1. These General Terms and Conditions and all offers and Contracts between the Seller and the Buyer are governed exclusively by Dutch law. The parties hereby expressly exclude the applicability of the U.N. Convention on Contracts for the International Sale of Goods.
2. All disputes between the Buyer and the Seller relating to or arising from the Contract or its performance and/or these General Terms and Conditions will be settled exclusively by the competent court in the district of The Hague.
April 2024 Version