Article 1. General
1.1. These terms and conditions apply to every offer, quotation and agreement between EL Merchandising BV registered with the Chamber of Commerce with number 78415500, hereinafter referred to as: "User", and an Other Party to which User has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
1.2. The present terms and conditions also apply to agreements with the User, the execution of which requires the involvement of third parties by the User.
1.3. These general terms and conditions are also written for the employees of User and its shareholders.
1.4. The applicability of any purchasing or other conditions of the Other Party is expressly rejected.
1.5. If one or more provisions in these general terms and conditions are at any time wholly or partially void or voidable, then the other provisions of these general terms and conditions remain fully applicable. The User and the Other Party will then consult to agree on new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and meaning of the original provisions.
1.6. If ambiguity exists regarding the interpretation of one or more provisions of these general terms and conditions, then the interpretation must take place "in the spirit" of these provisions.
1.7. If a situation arises between the parties that is not governed by these general terms and conditions, this situation should be judged according to the spirit of these general terms and conditions.
1.8. If the User does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that the User would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.
Article 2. Quotations and offers
2.1. All quotations and offers of the User are without obligation, unless the quotation stipulates a deadline for acceptance. A quotation or offer expires if the product to which the quotation or offer relates is no longer available in the meantime.
2.2. User cannot be held to its bids or offers if the Other Party can reasonably understand that the bids or offers, or any part thereof, contain an obvious mistake or slip of the pen.
2.3. The prices stated in a quotation or offer are exclusive of VAT and other government levies, unless otherwise indicated.
2.4. If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, the User will not be bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the User indicates otherwise.
2.5. A compound quotation does not oblige User to perform part of the order at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.
Article 3. Contract term; delivery terms, performance and modification of agreement
3.1. The agreement between the User and the Other Party is established at the time the Other Party agrees in writing to the order confirmation prepared by the User.
3.2. The agreement between the User and the Other Party is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
3.3. If a deadline has been agreed or specified for the completion of certain work or for the delivery of certain goods, this will never be a deadline. If a deadline is exceeded, the Other Party must therefore give the User written notice of default. The User must be offered a reasonable period to still perform the agreement.
3.4. If the User requires information from the Other Party for the performance of the agreement, the performance period will not commence until after the Other Party has provided it to the User correctly and completely.
3.5. Delivery takes place ex the User's premises. The Other Party will be obliged to take delivery of the items at the time they are made available to it. If the Other Party refuses to take delivery or fails to provide information or instructions necessary for delivery, the User will be entitled to store the items at the Other Party's expense and risk.
3.6. An under or over-delivery of a maximum of 10% is permitted. In the event that this is exceeded, the User will consult with the Other Party in this regard.
3.7. User has the right to have certain work performed by third parties.
3.8. User is entitled to execute the agreement in several phases and invoice the part thus executed separately, unless otherwise agreed.
3.9. If the agreement is performed in phases, the User may suspend the performance of those parts that belong to a subsequent phase until the Other Party has approved the results of the preceding phase in writing and has paid the related invoice(s).
3.10. If during the execution of the agreement it appears that for a proper execution thereof it is necessary to modify or supplement it, the parties will timely and in mutual consultation proceed to adapt the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the Other Party, the competent authorities et cetera, is changed and the agreement is thereby changed in qualitative and / or quantitative respect, this may also have consequences for what was originally agreed. As a result, the amount originally agreed upon may be increased or decreased. User will give as much advance notice as possible. An amendment to the agreement may also change the originally specified period of performance. The Other Party accepts the possibility of amending the agreement, including the change in price and term of execution.
3.11. If the agreement is amended, including a supplement, the User will be entitled to perform the agreement only after the competent person within the User has given his consent and the Other Party has agreed to the price and other conditions stated for the performance, including the time to be determined for performance. Failure to perform or not immediately perform the amended agreement will not constitute a breach of contract by the User, nor will it be a ground for the Other Party to terminate the agreement. Without being in default, the User may refuse a request to change the agreement, if this could have consequences in qualitative and / or quantitative respect, for example for the work to be performed or goods to be delivered in that context.
3.12. If the Other Party should default in the proper fulfillment of what it is obliged to do towards the User, then the Other Party will be liable for all damages (including costs) on the part of the User caused directly or indirectly as a result.
3.13. If the User agrees with the Other Party on a fixed price, the User shall nevertheless be entitled to increase this price at any time without the Other Party in that case being entitled to dissolve the agreement for that reason, if the price increase results from a power or obligation under the law or regulations or on other grounds that were not reasonably foreseeable at the time the agreement was concluded.
3.14. If the price increase, other than as a result of an amendment to the agreement, amounts to more than 10% (in the case of non-consumers) and takes place within three months of concluding the agreement, only the Other Party entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code will be entitled to dissolve the agreement by means of a written statement, unless the User is then still prepared to perform the agreement based on what was originally agreed, or if the price increase results from a power or an obligation imposed on the User by law or if it has been stipulated that delivery will take place more than three months after the purchase. A consumer is entitled to dissolution as referred to here regardless of the percentage by which the price has been increased.
3.15. If the Other Party enters into the agreement on behalf of another natural person or legal entity, it expressly declares by entering into the agreement that it is authorized to do so, whether by virtue of a power of attorney or otherwise. The Other Party, in addition to this (legal) person, is jointly and severally liable for the fulfillment of the obligations under that agreement.
Article 4. Suspension, dissolution and early termination of the agreement
4.1. User is authorized to suspend the fulfillment of the obligations or to dissolve the agreement, if: - The Other Party does not, not fully or not in a timely manner fulfill the obligations under the agreement; - After the conclusion of the agreement, circumstances have come to the User's knowledge that give it good reason to fear that the Other Party will not fulfill its obligations; - The Other Party was requested at the conclusion of the agreement to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient; - If, due to the delay on the part of the Other Party, the User can no longer be required to fulfill the agreement against the originally agreed conditions.
4.2. Furthermore, the User is authorized to dissolve the agreement if circumstances arise of such a nature that compliance with the agreement is impossible or if other circumstances arise of such a nature that the User cannot reasonably be required to maintain the agreement unaltered.
4.3. If the agreement is dissolved, the User's claims against the Other Party are immediately due and payable. If the User suspends fulfillment of its obligations, it shall retain its claims under the law and the agreement.
4.4. If the User proceeds with suspension or dissolution, he will in no way be obliged to compensate for damages and costs caused in any way.
4.5. If the dissolution is attributable to the Other Party, the User will be entitled to compensation for damages, including costs, incurred directly and indirectly as a result.
4.6. If the Other Party fails to comply with its obligations arising from the agreement and this failure to comply justifies dissolution, the User will be entitled to dissolve the agreement immediately and with immediate effect, without any obligation on its part to pay any compensation or indemnification, while the Other Party will be obliged to pay compensation or indemnification on account of default.
4.7. In case of liquidation, of (application for) suspension of payment or bankruptcy, of attachment - if and to the extent that the attachment has not been lifted within three months - at the Other Party's expense, of debt rescheduling or another circumstance as a result of which the Other Party can no longer dispose freely of its assets, the User will be free to terminate the agreement at once and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnification. The User's claims against the Other Party will in that case be immediately due and payable.
4.8. If the Other Party fully or partially cancels an order that has been placed, the items ordered or prepared for it, plus any supply and delivery costs thereof and the labor time reserved for the execution of the agreement, will be charged in full to the Other Party.
Article 5. Force Majeure
5.1. User is not obliged to fulfill any obligation to the Other Party if he is hindered to do so as a result of a circumstance that is not due to fault, and is not for his account by virtue of the law, custom, a legal act or generally accepted practice.
5.2. In these general terms and conditions, force majeure means, in addition to its definition in law and jurisprudence, all external causes, foreseen or unforeseen, over which the User cannot exercise any control, but which prevent the User from fulfilling his obligations. This includes strikes in the company of the User or third parties. The User is also entitled to invoke force majeure if the circumstance preventing (further) compliance with the agreement occurs after the User should have fulfilled its obligation.
5.3. User may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without any obligation to compensate the other party for damages.
5.4. To the extent that the User 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 independent value can be attributed to the part already fulfilled or to the part to be fulfilled respectively, the User will be entitled to invoice the part already fulfilled or to be fulfilled respectively separately. The Other Party will be obliged to pay this invoice as if it were a separate agreement.
5.5. Damage resulting from force majeure, other than restitution or remission of the agreed price for that part of the agreement affected by force majeure, shall never be eligible for compensation.
Article 6. Payment and collection costs.
6.1. Payment should be made within 14 days of the invoice date, in a manner to be indicated by the User in the currency invoiced, unless otherwise indicated in writing by the User. User is entitled to invoice periodically.
6.2. If the Other Party fails to pay an invoice on time, the Other Party shall be in default by operation of law. The Other Party will then owe interest of 1% per month, unless the statutory (commercial) interest rate is higher, in which case the statutory (commercial) interest rate will be due. The interest on the amount due and payable will be calculated from the moment the Other Party is in default until the moment of payment of the amount due in full.
6.3. User shall be entitled to have the payments made by the Other Party go first of all to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and the current interest.
6.4. The User may, without thereby being in default, refuse an offer of payment if the Other Party designates a different order for the allocation of payment. User may refuse full repayment of the principal sum, if this does not include the interest still due and accrued and collection costs.
6.5. The Other Party shall never be entitled to set off the amount it owes to the User.
6.6. Objections to the amount of an invoice do not suspend the payment obligation. The Other Party not entitled to invoke Section 6.5.3 (Articles 231 to 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
6.7. All reasonable costs, such as judicial, extrajudicial and execution costs, incurred to obtain amounts owed by the Other Party, shall be borne in full by the Other Party. The Other Party shall also owe interest on the collection costs owed.
6.8. User is always entitled to claim that the agreed price is paid in full or in part by advance payment. The User shall not be obliged to (further) execute the agreement for as long as the Other Party is in default of payment of the advance payment referred to here.
Article 7. Retention of title.
7.1. All items delivered by the User within the framework of the agreement remain the User's property until the Other Party has properly fulfilled all obligations under the agreement(s) concluded with the User.
7.2. Items delivered by the User that are subject to retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The Other Party is not authorized to pledge the items falling under the retention of title or encumber them in any other way.
7.3. The Other Party must always do everything that can reasonably be expected of him to secure the User's property rights.
7.4. If third parties seize the items delivered under retention of title or wish to establish or assert rights to them, the Other Party will be obliged to inform the User of this immediately.
7.5. The Other Party undertakes to insure and keep insured the items delivered under retention of title against fire, explosion and water damage and against theft and to make the policy of this insurance available for inspection by the User on demand. In the event of any insurance payment, the User will be entitled to this money. Insofar as necessary, the Other Party undertakes vis-à-vis the User to cooperate in everything that may be necessary or desirable in that context.
7.6. In case the User wishes to exercise its property rights indicated in this article, the Other Party gives unconditional and irrevocable permission in advance to the User and third parties to be designated by the User to enter all those places where the User's property is located and to take those items back.
Article 8. Warranties, investigations and complaints, limitation period
8.1. The goods to be delivered or work to be performed by the User meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in normal use.
8.2. The guarantee referred to in paragraph 1 of this article applies for a period of 6 months after delivery or performance of the work, unless the nature of the delivered or performed work dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the User concerns a good produced by a third party, the guarantee is limited to that provided by the producer of the good, unless stated otherwise. The guarantee referred to in paragraph 1 of this article applies only to the work performed and/or products delivered by the User. If the User's work has consisted of the processing/editing of items supplied by the Other Party, the guarantee is limited only to the items added and/or fitted to them by the User and/or work carried out. The customer is obliged to check the items supplied by him in advance for suitability for the processing/working to be carried out by the user. The User is thus not responsible for the items delivered by the Other Party becoming damaged or unusable, without prejudice to the other provisions of this article.
8.3. Any form of guarantee will lapse if a defect has arisen as a result of or arising from improper or improper use thereof or improper storage or maintenance by the Other Party and/or third parties when, without the User's written consent, the Other Party or third parties have made changes or tried to make changes to the item, attached other items to it that should not have been attached to it or if it was processed or treated in a manner other than prescribed. Nor will the Other Party be entitled to any guarantee if the defect has arisen due to or as a result of circumstances beyond the User's control.
8.4. The Other Party is obliged to examine the delivered goods, or have them examined, immediately at the time that the goods are made available to it. The Other Party must examine whether the quality and/or quantity of the items delivered corresponds to what has been agreed and meets the requirements the parties have agreed in this respect. Any visible defects must be reported to the User in writing within seven days of delivery. Any non-visible defects must be reported to the User in writing immediately, but in any case at the latest within seven days after discovery thereof. The report must contain as detailed a description of the defect as possible, so that the User is able to respond adequately. The Other Party must give the User the opportunity to investigate a complaint (or have it investigated).
8.5. If the Other Party complains in time, this does not suspend its payment obligation. The Other Party shall in that case also remain obliged to take delivery of and pay for the other goods ordered.
8.6. If a defect is reported later, the Other Party is no longer entitled to repair, replacement or compensation.
8.7. If it has been established that an item is defective and a complaint about this has been submitted in time, the User will replace the defective item within a reasonable term after receiving it back or, if returning the item is not reasonably possible, written notification about the defect from the Other Party, at the User's discretion, or take care of repairing it or pay the Other Party a replacement fee for this. In the event of replacement, the Other Party will be obliged to return the replaced item to the User and transfer ownership thereof to the User, unless the User indicates otherwise.
8.8. If it is established that a complaint is unfounded, the costs incurred as a result, including research and transport costs, on the part of the User as a result, will be borne in full by the Other Party.
8.9. After expiration of the warranty period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Other Party.
8.10. Notwithstanding the legal limitation periods, the limitation period of all claims and defenses against the User and the third parties involved by the User in the execution of an agreement is one year.
Article 9. Liability
9.1. If User should be liable, this liability is limited to what is regulated in this provision.
9.2. The User is not liable for damage, of whatever nature, caused by the fact that the User has relied on incorrect and/or incomplete data provided by or on behalf of the Other Party and/or items supplied for processing.
9.3. If the User should be liable for any damage, the User's liability is limited to a maximum of the invoice value of the order, at least to that part of the order to which the liability relates.
9.4. User's liability shall in any case always be limited to the amount of the payment made by its insurer in a given case.
9.5. User is only liable for direct damages.
9.6. Direct damage will be understood to mean only the reasonable costs incurred to determine the cause and scope of the damage, to the extent that the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to have the User's faulty performance comply with the agreement, to the extent that they can be attributed to the User, and reasonable costs incurred to prevent or limit damage, to the extent that the Other Party demonstrates that these costs led to the limitation of direct damage as referred to in these general terms and conditions.
9.7. User shall never be liable for indirect damages, including consequential damages, lost profits, missed savings and damages due to business interruption.
9.8. Furthermore, the User does not bear any liability for damages for which the manufacturer of the items/products should bear the damage under the legal regulation of product liability.
9.9. The limitations of liability contained in this article do not apply if the damage is due to intent or gross negligence on the part of User or its managerial subordinates.
Article 10. Transfer of risk
10.1. The risk of loss, damage or decrease in value shall pass to the Other Party at the time when goods are brought into the control of the Other Party.
Article 11. Indemnification
11.1. Except in the case of intent or deliberate recklessness on the part of the User, the Other Party will fully, unconditionally and irrevocably indemnify the User against all claims by third parties, for whatever reason and/or on whatever basis, in respect of compensation for damages, costs and/or interest related to the User's performance of the agreement.
11.2. If the User should be held liable by third parties for that reason, the Other Party will be obliged to assist the User both extrajudicially and judicially and immediately do all that may be expected of it in that case. Should the Other Party fail to take adequate measures, the User will be entitled to do so itself without notice of default. All costs and damages on the part of the User and third parties as a result will be entirely at the Other Party's expense and risk.
Article 12. Intellectual property
12.1. The User or its licensors are entitled to all intellectual property rights, including but not limited to copyrights, trademark rights, design rights, patent rights and rights with respect to know how, with respect to the manufactured and delivered goods, unless otherwise agreed in writing. The Other Party only acquires the right of use as granted to it under the agreement. If the Other Party has provided certain knowledge to the User for the manufacture of the goods to be delivered, the User is entitled to use this knowledge for other purposes as well, unless the knowledge is strictly confidential information of the Other Party. The Other Party guarantees that the information or knowledge provided by it to the User does not infringe on the (intellectual property) rights of third parties and fully, unconditionally and irrevocably indemnifies the User against all damage suffered by the User as a result of the use of this information and knowledge.
Article 13. Variations
13.1. Deviations of any kind between the work delivered on the one hand and the original design, drawing, copy or model or the typesetting, printing, or other proof, on the other hand, cannot constitute grounds for rejection, discount, dissolution of the agreement and/or compensation if they are of minor significance.
13.2. In an assessment of whether or not deviations in the total of the work should be considered minor, a representative sample from the work shall be considered, unless individually determined.
13.3. Deviations which, taking all circumstances into account, are not reasonably likely to cause any or a minor
affect the use value of the work, are always considered deviations of minor significance.
13.4. More or less deliveries compared to the agreed number are permitted if they do not exceed or fall short of 10%. The more or less number delivered shall not be settled.
Article 14. Applicable law and disputes.
14.1. All legal relationships to which the User is a party are governed exclusively by Dutch law, even if an obligation is fully or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
14.2. The judge in the User's place of business is exclusively competent to take cognizance of disputes, unless the law imperatively prescribes otherwise. Nevertheless, the User is entitled to submit the dispute to the court with jurisdiction according to the law.
14.3. The parties will only resort to the courts after making every effort to settle a dispute by mutual agreement.
Article 15. Location and modification of terms and conditions
15.1. These terms and conditions are made known in email traffic from the User and attached to offers and order confirmations issued by the User.
15.2. The version in force at the time the legal relationship with the User was established always applies.
15.3. These general terms and conditions are filed with the Chamber of Commerce, file no. 78417058.
