General Terms and Conditions of Sale and Delivery
OF: ELKA-PIETERMAN HOLLAND B.V.
Elka Pieterman Holland B.V. is registered in the trade register of the Chamber of Commerce under number 20024218. Elka Pieterman Holland B.V. has its registered office in Breda, the Netherlands.
Article 1 – Definitions
Seller : Elka-Pieterman Holland B.V., the user of the general terms and conditions of sale and delivery (abbreviated: terms and conditions);
Buyer : the counterparty of the seller, the buyer;
Agreement: the agreement between the seller and the buyer;
In Writing: by letter or email.
Article 2 – General
2.1 The provisions of these general terms and conditions of sale and delivery apply to every offer and agreement between the seller and the buyer whereby the seller undertakes to deliver goods to the buyer. Deviations from these general terms and conditions are only legally valid if expressly confirmed in writing by the seller.
2.2 These terms and conditions also apply to all agreements with the seller, for the performance of which the seller makes use of the services of third parties.
2.3 The applicability of the purchaser's general terms and conditions or other general terms and conditions is expressly excluded, unless the parties have agreed otherwise in writing.
2.4 If the seller enters into agreements with the buyer more than once, the present general terms and conditions shall apply to all subsequent agreements, regardless of whether or not they have been explicitly declared applicable.
2.5 If one or more provisions in these general terms and conditions are invalid or are voided, the remaining provisions of these general terms and conditions will remain applicable.
Article 3 – Offers, Conclusion of agreement, Prices
3.1 All offers, in whatever form, are without obligation, even if the offer specifies a period for acceptance.
3.2 If a natural person enters into an agreement on behalf of or for the account of another natural person, he declares – by signing the order form/order – that he is authorised to do so. This person is jointly and severally liable with the other natural person for all obligations arising from the agreement.
3.3 Agreements to which the seller is a party shall only be binding once the seller has confirmed the buyer's order in writing.
3.4 In the case of verbal agreements, the invoice shall be deemed to accurately and completely reflect the agreement, unless a complaint is made within 8 days of the invoice date.
3.5 The agreement shall always be entered into subject to the suspensive conditions that information obtained by the seller demonstrates, in the seller's opinion, the buyer's sufficient creditworthiness and/or that credit insurance can be taken out on the buyer.
3.6 The prices in the seller's offers/catalogues/price lists are based on Ex Works, Breda, the Netherlands (EXW, Incoterms 2020), are in euros, exclude VAT and government levies, and exclude packaging and administration costs, unless expressly agreed otherwise in writing.
3.7 Any discounts can only be agreed in writing;
3.8 After the agreement has been concluded, the seller has the right to adjust the price in all reasonableness or to dissolve the agreement if factors arise that justify this. The above-mentioned factors include, but are not limited to, increases in raw material prices, production costs, duties, taxes, currency changes, inflation, etc.
3.9 The seller is entitled to charge the costs of durable packaging materials separately. These costs will be credited by the seller when the packaging materials have been returned undamaged by the buyer at the buyer's expense and risk.
3.10 The seller is entitled to charge the buyer for the specified order costs and costs relating to special orders.
3.11 The seller may refuse an order or part of an order or attach conditions to an order without stating reasons.
Article 4 – Delivery
4.1 Delivery conditions are agreed upon per transaction. All delivery conditions apply in accordance with Incoterms 2010;
4.2 The seller is entitled at all times to stipulate full or partial payment in advance. After receipt of the advance payment by the seller, delivery to the buyer will take place, unless the parties have agreed otherwise in writing;
4.3 The buyer is obliged to take delivery of the goods at the moment that the seller delivers them or has them delivered to him, or at the moment that they are made available to him in accordance with the agreement.
4.4 If the buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, the seller is entitled to store the goods at the buyer's expense and risk. If the buyer does not take delivery within two months, the seller is entitled to sell the goods to another party. If this is not possible, the seller is entitled to destroy the goods. The costs incurred and the damage suffered by the seller as a result of resale (including any loss of revenue) or destruction shall be borne by the buyer.
4.5 If delivery is made cash on delivery, the seller will always charge the buyer for cash on delivery costs.
4.6 If the seller has specified a delivery period, this is indicative. A specified delivery time is therefore never a strict deadline. If a delivery period is exceeded, the buyer must give the seller written notice of default and grant him a reasonable period of time.
4.7 Only in the event of an excessive delay (more than 8 weeks) in the agreed delivery time shall the buyer be entitled to terminate the agreement, unless the delay is caused by force majeure. However, the buyer shall never be entitled to any penalty or compensation.
4.8 The Seller is entitled to deliver the goods in instalments. The Seller is entitled to invoice partial deliveries separately.
4.9 Any delivery period will be determined per transaction. This delivery period shall commence at the time that the applicable agreement has been concluded in accordance with the provisions of Article 3 and the seller has also accepted any agreed payment security and/or the agreed advance payment has been received and the necessary conditions for the execution of the order have been met, including receipt by the seller of the necessary information from the buyer. agreed advance payment has been received and the necessary conditions for the execution of the order have been met, including receipt by the seller of the necessary information from the buyer;
4.10 Failure by the buyer to fulfil any payment obligation (on time) shall suspend the seller's delivery obligation.
Article 5 – Models, Images
5.1 The models, images, numbers, sizes, weights or descriptions included in the webshop/catalogues/offers/advertisements/price lists are shown for illustrative purposes only;
5.2 If a prototype or sample has been shown to the buyer, it shall be presumed to have been shown for illustrative purposes only, unless it has been expressly agreed in writing that the item to be delivered will correspond entirely with it.
5.3 The sample models sent by the seller at the buyer's request cannot be returned. The seller will charge the buyer in full for the sample models sent at the catalogue value, unless the parties have agreed otherwise in writing.
Article 6 – Investigation, Complaints
6.1 The buyer is obliged to inspect the delivered goods at the time of delivery. In doing so, the buyer must check whether the quality and quantity of the delivered goods correspond to what has been agreed. Defects, deviations and shortcomings must be reported to the seller by means of a note on the consignment note/delivery note within 24 hours of delivery by fax or email (scan), failing which the goods delivered will be deemed to be sound.
6.2 Complaints regarding the invoice must be made in writing within 8 days of the invoice date.
6.3 After the expiry of the complaint period, the buyer is deemed to have approved the delivery or the invoice.
6..4 If a complaint is made in good time in accordance with the previous paragraphs, the buyer remains obliged to take delivery of and pay for the purchased goods. If the buyer wishes to return defective goods, this must be done with the prior written consent of the seller and in the manner specified by the seller.
6.5 Special orders cannot be returned and credited, as the seller can never return these items to the supplier or claim them;
6.6 The following situations can never give rise to any complaint:
- deviations in colour, weight and size of less than 10%;
- typesetting or printing errors and spelling mistakes mentioned in the catalogue/offer/price list;
- interim price changes.
6.7 If, in the opinion of the seller, a complaint is justified, the seller will replace the delivered goods, unless this has become demonstrably pointless for the buyer. The latter must be communicated by the buyer in writing. If replacement is demonstrably pointless, the seller will take back the goods and credit the buyer for the relevant invoice amount. Under no circumstances shall the seller be obliged to reimburse other costs and/or damage. However, in all cases, the seller shall only be liable within the limits set out in the article entitled “Liability”.
6.8 Only if and insofar as the complaint is found to be justified by the seller shall this suspend the buyer's payment obligation until the complaint has been resolved.
Article 7 – Payment
7.1 Payment must be made without any discount, suspension or set-off, in cash or by direct debit, or in advance by means of (partial) prepayment, or, if the parties have agreed to this, within 8 days of the invoice date in a manner to be specified by the seller in euros, unless the parties have agreed otherwise in writing. Objections to the amount of the invoices do not suspend the payment obligation.
7.2 If the buyer fails to make payment within the agreed term, the buyer will be in default by operation of law. The buyer will then owe interest of 1.5% per month or part thereof, unless the statutory interest rate for commercial transactions is higher, in which case the higher interest rate will apply. Interest on the amount due will be calculated from the moment the buyer is in default until the moment the full amount has been paid.
7.3 In the event of liquidation, (application for) bankruptcy, the buyer being placed under guardianship, the death of the buyer, transfer or cessation of the buyer's business, seizure or (provisional) suspension of payments by the buyer, the seller's claims against the buyer shall become immediately due and payable.
7.4 The seller is entitled to charge a credit restriction surcharge of 2%, which can be deducted if payment is made within 8 days of the invoice date.
7.5 Payment must be made to the seller, unless the seller has transferred its claim against the buyer to a third party or has pledged it to a third party. If this is the case, the seller will notify the buyer in writing that he can make payment to the third party in full discharge of his obligation.
7.6 Payments shall first be applied to reduce the costs, then to reduce the interest due, and finally to reduce the oldest outstanding and due invoices and the current interest.
7.7 Regardless of the agreed payment terms, the buyer is obliged, at the seller's request, upon or after entering into the agreement and prior to delivery, to provide sufficient security for payment in the seller's opinion.
Article 8 – Collection costs
8.1 If the buyer fails to fulfil its obligations (on time), all reasonable costs incurred in obtaining satisfaction out of court will be borne by the buyer. The collection costs will be calculated in accordance with the collection rate recommended by the Dutch Bar Association in collection cases, with a minimum of €350.00 per claim.
8.2 If the seller has incurred higher costs, which were reasonably necessary, these will also be eligible for reimbursement. Any reasonable legal and enforcement costs incurred will also be borne by the buyer.
Article 9 – Retention of title
9.1 All goods delivered by the seller remain the property of the seller until the buyer has fulfilled all payment obligations arising from all agreements concluded with the seller;
9.2 The buyer is not authorised to pledge, lease, resell to customers outside the EU or otherwise encumber the goods subject to retention of title.
9.3 If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereto, the buyer is obliged to inform the seller thereof as soon as possible;
9.4 If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereto, the buyer is obliged to inform the seller thereof as soon as possible;
9.5 In the event that the seller wishes to exercise its property rights as referred to in this article, the buyer hereby grants the seller or third parties designated by the seller unconditional and irrevocable permission to enter all locations where the seller's property is located and to take back those items.
9.6 In the event that the seller wishes to exercise its property rights as referred to in this article, the buyer hereby grants the seller or third parties designated by the seller unconditional and irrevocable permission to enter all locations where the seller's property is located and to take back those items.
Article 10 – Suspension and termination
10.1 The seller is authorised to suspend the fulfilment of its obligations or to dissolve the agreement without the need for a notice of default or judicial intervention if:
- the buyer fails to fulfil its obligations under the agreement, fails to do so on time or fails to do so in full;
- after the conclusion of the agreement, circumstances come to the attention of the seller that give good reason to fear that the buyer will not fulfil his obligations, will not fulfil them on time or will not fulfil them completely. If there are good grounds to fear that the buyer will only partially or improperly fulfil its obligations, the suspension is only permitted insofar as the shortcoming justifies this;
- upon or after the conclusion of the agreement, the buyer has been requested to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient. Once security has been provided, the right to suspend performance shall lapse, unless this has unreasonably delayed performance;
10.2 Furthermore, the seller is authorised to terminate the agreement (or have it terminated) if circumstances arise that are of such a nature that fulfilment of the agreement is impossible or can no longer be demanded in accordance with standards of reasonableness and fairness, or if other circumstances arise that are of such a nature that unaltered maintenance of the agreement cannot reasonably be expected.
10.3 If the agreement is dissolved, the seller's claims against the buyer shall become immediately due and payable. If the seller suspends the fulfilment of its obligations, it shall retain its claims under the law and the agreement.
10.4 The seller always reserves the right to claim compensation.
Article 11 – Cancellation
11.1 If, after an agreement has been concluded with the seller and before the seller has delivered to the buyer, the buyer wishes to cancel all or part of the order, 10% of the agreed order price including VAT will be charged to the buyer as cancellation costs. The buyer is also obliged to reimburse the seller for all costs reasonably incurred in connection with the execution of the order (including costs of preparation, storage, etc.), without prejudice to the seller's right to full compensation, including lost profits.
11.2 Cancellation must be made by registered letter;
11.3 If the buyer has already paid the order price to the seller, the order price minus 10% will be refunded to the buyer.
11.4 Items that cannot be delivered immediately will automatically be placed on backorder. If these items cannot be delivered within two months, the buyer will be notified by the seller no later than two weeks after receipt of the order. In that case, the buyer may cancel the order free of charge. If the buyer has already paid the seller for the item, a refund will be arranged for the buyer.
11.5 Special orders cannot be cancelled as the seller can never return these items to the supplier.
Article 12 – Warranty
12.1 The goods delivered by the seller comply with the requirements and specifications set by Dutch legislation;
12.2 This warranty is limited to:
- manufacturing defects and therefore does not cover damage resulting from wear and tear and improper, careless or incompetent use, maintenance and assembly;
- deliveries to buyers within the EU;
- the warranty provided by the manufacturer;
- crediting, repair or replacement of the item;
- 6 months after delivery by the seller to the buyer, unless otherwise agreed in writing.
12.3 This warranty shall lapse:
- in the event of processing, modifications, assembly, alterations or repairs by a third party to or of the delivered goods;
- in the event of use for a purpose other than that specified in the instructions for use;
- in the event of failure to comply with the instructions for use.
12.4 Discounted items are excluded from the warranty;
12.5 No guarantee is given on second-hand items and remnants;
12.6 As long as the buyer fails to fulfil his obligations arising from the agreements concluded by the parties, he cannot invoke this warranty provision;
12.7 If the seller replaces parts in fulfilment of the warranty obligation, the replaced parts become the property of the seller.
Article 13 – Liability
13.1 Except in the event of intent or gross negligence on the part of the seller and except for statutory liability under mandatory provisions, the seller shall never be liable for any damage suffered by the buyer. The seller shall never be liable for indirect damage, including consequential damage, lost profit, lost savings, damage due to business interruption and environmental damage. Liability for damage resulting from liability towards third parties is also expressly excluded.
13.2 If and insofar as, despite the provisions of Article 13.1, the seller is liable on any grounds whatsoever, this liability shall be limited to an amount equal to the net invoice value of the goods concerned. A series of related events causing damage shall be regarded as a single event/claim for the purposes of this article.
13.3 The seller shall never be liable for the composition of the goods sold;
13.4 The buyer indemnifies the seller against any claims from third parties (including claims from third parties on the grounds of product liability) who suffer damage in connection with the performance of the agreement, unless it is established in court that these claims are a direct result of gross negligence or intent on the part of the seller and the buyer also demonstrates that he is not at fault in this regard.demonstrates that he is not at fault in any way in this regard.
13.5 The seller shall never be liable for damage resulting from incorrect use of the item, use that is not in accordance with the instructions for use or use other than that for which the item is intended.
13.6 The seller shall never be liable for damage resulting from advice given. Advice shall always be given on the basis of the facts and circumstances known to the seller and in mutual consultation, whereby the seller shall always take the buyer's intention as a guideline and starting point.
Article 14 – Force majeure
14.1 The parties are not obliged to fulfil any obligation if they are prevented from doing so as a result of a circumstance that is not attributable to gross negligence or intent on the part of the party invoking it, and which is not for their account under the law, a legal act or generally accepted practice.
14.2 In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and case law, all external causes, foreseen or unforeseen, over which the seller has no influence, but as a result of which the seller is unable to fulfil its obligations. This includes strikes at the seller's company, postal strikes, traffic jams, congestion, theft, fire, export restrictions, power failures and stagnation in deliveries by suppliers.
14.3 The seller also has the right to invoke force majeure if the circumstance preventing (further) performance occurs after the seller should have fulfilled its obligation.
14.4 The parties may suspend their obligations under the agreement for the duration of the force majeure. If this period lasts longer than two months, either party is entitled to terminate the agreement without being liable to compensate the other party for any damage.
14.5 Insofar as the seller has already partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure, or will be able to fulfil them, and the fulfilled or to be fulfilled part has independent value, the seller is entitled to invoice the already fulfilled or to be fulfilled part separately. The buyer is obliged to pay this invoice as if it were a separate agreement.
Article 15 – Intellectual property rights
15.1 All intellectual property rights relating to goods delivered by the seller are vested exclusively in the seller or its suppliers. Without prejudice to the provisions of these general terms and conditions, the seller reserves the rights and powers vested in it under the Copyright Act.
15.2 All brochures, catalogues, price lists, documents and other materials or (electronic) files provided by the seller remain the property of the seller, regardless of whether they have been made available to the buyer or to third parties, unless otherwise agreed. These are intended exclusively for use by the buyer and may not be reproduced, made public or disclosed to third parties by the buyer without the seller's prior consent, unless the nature of the documents provided dictates otherwise.
15.3 The buyer is not permitted to modify delivered goods in whole or in part, or to provide them with a different brand name, or to use the relevant brand in any other way or to register it in its own name.
Article 16 – Authentic version
16.1 Only the Dutch version of these terms and conditions is authentic. If a translation deviates in any way, the Dutch text prevails.
Article 17 – Disputes
17.1 The competent court in Breda (the Netherlands) has exclusive jurisdiction to hear disputes between the parties. Nevertheless, the seller reserves the right to submit the dispute to the legally competent court.
17.2 Disputes between sellers and buyers established outside the EU will be finally settled by arbitration administered by the International Chamber of Commerce in accordance with the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with these Rules. The language of arbitration shall be Dutch or English. The arbitration shall take place in Breda, the Netherlands.
Article 18 – Applicable law
18.1 These general terms and conditions and any agreement between the seller and buyer are governed exclusively by Dutch law. The applicability of the Vienna Sales Convention is expressly excluded.
Article 19 – Deposit conditions
19.1 This publication replaces all other articles and conditions of delivery registered and/or issued by us in the past, unless expressly agreed otherwise in writing.
19.2 These terms and conditions have been filed at the office of the Chamber of Commerce and Industry for Central Brabant in Breda.
Drawn up on March 7, 2022
Ms. I.M.G. Van Hove
Management
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