General Terms and Conditions
Platinaweg 11 Elst (Gld.)
6660 AA Elst (Gld.)
Chamber of Commerce 09076776
Article 1. DEFINITIONS AND VALIDITY
In the text below, “we” and “us” refers to the private limited company Eurocase B.V., which has its registered office and principal place of business in Elst. “Buyer” refers to the natural person or legal entity who purchases goods or services from us, who asks for an offer or quotation for that or who otherwise enters into one or more agreements with us. These terms and conditions apply to all offers and to every transaction concluded with us from the date on which the terms and conditions are filed at the Chamber of Commerce and Industry of Central Gelderland in Arnhem, to the extent we and the buyer have not explicitly deviated from them in writing together. Unless explicitly agreed otherwise, only these terms and conditions apply, also when the buyer applies other or conflicting terms and conditions (of purchase).
Article 2. QUOTATIONS, ETC.
All our quotations are without any obligation. Transactions only bind us if we have confirmed them in writing or from the moment we have started execution, such as by sending a giro collection form, which also serves as confirmation; this also applies to offers and promises made by our representatives or other persons working at our company, as well as to arrangements made by them. The right to return goods applies only if and insofar as this has been documented in writing in the offer that is accepted by the buyer. Changes and additions to agreements concluded are valid only if they have been agreed in writing. We will only conclude a continuing performance contract with the buyer if the contract in question stipulates or if it follows from that that the transaction is not (merely) a one-off but has a certain duration. The products we offer are often subject to strict limitations or are available in very small quantities only. This means we are entitled to limit/adjust deliveries to the relevant circumstances at our discretion without this resulting in any right for the buyer to claim compensation. That also applies when a series turns out to be incomplete for whatever reason, as we are unable to deliver everything from a subscription. If, despite all care taken during the acceptance of an order, the order, despite having been paid, cannot be delivered (in full), either a similar product will be offered or the amount paid, proportionally reduced, will be refunded immediately, without the buyer being entitled to claim compensation.
Article 3. COPYRIGHT
All goods, data and/or services provided to the buyer by us that are or may be subject to any intellectual or industrial property right or a similar right remain subject to our rights. Said rights include patent rights, trademark rights, copyrights, design rights, the right to a trade name, rights to know-how, etc. In general, we are entitled to grant written authorisation to publish or multiply the services and data made available. If the buyer is granted permission to publish and/or multiply a service or data, this merely concerns a non-exclusive permission for use in the agreed manner for a certain, specified purpose and it is subject to the so-called personality rights pursuant to Section 25 of the Copyright Act [Auteurswet (Aw)]. The buyer is not permitted to directly or indirectly offer services and data for further distribution or to make all or part of them available to third parties in any way, processed or otherwise, altered and commercially or otherwise. Any use not agreed on infringes our rights. In the case of an infringement, we can impose a penalty to the extent of at least three months of our customary fee for such kind of use, without prejudice to our right to claim compensation. The buyer will immediately notify us when he realises that the goods or services provided to him or any unprocessed version thereof is used or distributed by a third party who has not received any permission from us to do so. We are at all times entitled to make goods and services or goods and services similar to those offered to the buyer available to third parties, unless agreed otherwise in writing in advance.
Article 4. PAYMENT, NON-PERFORMANCE AND RETENTION OF TITLE
Net payment must be made into one of our bank accounts within 14 days of the invoice date. Other payment methods, particularly handover to our members of staff, are possible only with the written consent of our management board. Unless explicitly agreed otherwise in writing with the buyer, payment by the buyer serves and is booked by us to reduce and settle the oldest invoice or invoices due, on the understanding that we are at all times entitled to reduce payment from or regard it as payment of any outstanding invoice or invoices, which is at our discretion. A funds transfer is deemed to have been made on the date on which the amount in question has been credited to one of our accounts. The costs of a funds transfer charged to us by the bank, such as the costs for cashing a cheque from the buyer or costs with regard to foreign currency, are payable by the buyer. If the buyer fails to make payment at the agreed time and/or in the agreed manner, he will be in default by the mere lapse of the term without a demand or notice of default being required. The buyer explicitly waives any rights to a set-off. If for some reason, the buyer fails to fulfil his obligations, we are entitled to declare the transaction dissolved without a demand, notice of default or legal intervention being required and without this affecting our right to claim compensation. In that case, we are also entitled to invoke the non-fulfilment as fulfilment of a resolutive condition, meaning that the transaction is dissolved in the case of non-fulfilment.
The buyer is not entitled to the latter. In the case of a moratorium or bankruptcy of the buyer we are entitled to unconditionally and immediately terminate the agreement. We will immediately notify the buyer of such dissolution by means of a registered letter. In such cases, we are also entitled to cancel all other pending transactions with the buyer subject to the same conditions, to the extent those transactions have not been executed yet; each cancellation or dissolution will result that everything owed to us becomes immediately due and payable. In the case of late payment of invoice amounts or a part thereof, the buyer owes interest at 1% per month, regardless of the provisions above. We are also entitled to suspend the transaction in question or other transactions. When we feel that it is necessary to hand over the collection of late payments to third parties, we will notify the buyer thereof in writing. In general, we will give him a short period of time to be stipulated by us to enable him to fulfil his obligations after all unless immediate collection measures are, in our opinion, required in a certain case. If we decide to take collection measures, the corresponding costs will be fully payable by the buyer. At our discretion we can charge him all the actual costs charged to us or an amount equal to 15% of the amount owed to us. We reserve the right to demand security for prompt payment at all times with a view to deliveries already and yet to be made, which security may come in the form of a prepayment, a bank guarantee, a mortgage, pledge or suretyship, which will be at our discretion. The goods delivered by us will become the property of the buyer as soon as he has fulfilled all his obligations under the transaction in question, of whatever nature (including any obligation to pay compensation). The buyer is obliged to cooperate in all measures we will take in order to protect our proprietary rights to the goods delivered. The buyer is not permitted to pledge goods delivered by us, the ownership of which accrues to us, and no other right of any kind to those goods can be granted to third parties. Should third parties wish to attach or exercise any rights with regard to the goods delivered under retention of title, the buyer will be obliged to notify us of that immediately. As long as we reserve the rights to the goods sold, the buyer can only use the goods for his own processing or onward supply during the normal running of his business. In the event that the buyer fails to fulfil his obligations for some reason or fails to fulfil them in time, we are entitled to claim the goods delivered by us as being our property, while the transaction on which basis we delivered the goods to our buyer will be regarded as having been dissolved. We are also entitled to do this when the goods are held by third parties after having been supplied onwards. With a view to any reversal of goods as referred to above, we will credit the buyer for the value that can be allocated to the returned goods in our reasonable opinion, less the reversal costs and without prejudice to our right to claim compensation.
Article 5. CREDITWORTHINESS
If, after having concluded an agreement, we come to the conclusion that payment is not sufficiently guaranteed, we are entitled to demand payment from the buyer prior to delivery; if the buyer has not complied with our request for payment in advance within 14 days of a demand by registered letter, we are entitled to cancel the agreement.
Article 6. FORCE MAJEURE
Unforeseen obstructions such as strikes, exclusion, fire, frost, flooding, a lack of means of transport, government regulations, considerable changes to exchange rates, riots, mobilisation, war, a state of siege, blockades, business interruptions, excessive illness among staff, computer breakdowns, late delivery or incorrect delivery of consumables, regardless of whether these events occur at our company or our suppliers, give us the right to fully or partially cancel the agreement for that part that has not been executed yet or to suspend the execution of the agreement, without being liable to pay any compensation. If delivery is not made within one month of the buyer having demanded we deliver the goods, we and, at any time after that, the buyer are entitled to cancel the agreement without being entitled to claim any compensation. Force majeure also includes the situation in which (the possibility of) compliance with the agreement to deliver goods or services depends on agreements between ourselves and third parties and such agreements are fully or partially cancelled for whatever reason and we are unable to conclude similar agreements under reasonable conditions elsewhere.
Article 7. DELIVERY PERIOD AND DISPATCH PERIOD
The delivery periods given by us are by approximation only. When exceeded, we can never be held liable to pay any compensation for damage caused and it does not give the buyer the right to cancel all or part of the agreement. We will proceed to deliver the order within three weeks of having received payment from the buyer.
Article 8. LIABILITY
We do not accept liability towards the buyer for damage suffered by the buyer that is a direct or indirect result of the late or incorrect functioning of the delivery of goods or services or the result of faults in the composition or contents of the goods or services delivered or any incompleteness thereof, also if it concerns other factors such as force majeure; apart from technical or other issues at our company, this may also include a lack of the necessary cooperation from third parties who have a copyright to data or goods; in the case of such third-party actions too, the buyer will not be able to hold us liable in any way. This will be different only in the event of intent or wilful recklessness on our part. In that case, liability is limited to the extent of the last invoice sent to the buyer. Neither do we accept liability for any damage suffered by the buyer or any third party, which damage is the result of the incorrect and/or incompetent use by the buyer or by any third parties of goods and services delivered by us. The buyer indemnifies us against all third-party claims in respect of goods and services delivered by us unless it is determined in court that this liability is a direct result of intent or gross negligence on our part and the buyer also proves that he is not to blame in any way.
Article 9. EXECUTION
We reserve the right to determine and change the form and content of our goods and services. We are entitled to carry out anything not explicitly described in an instruction as we see technically and creatively fit. We will do our utmost to ensure that goods and services reach the buyer correctly and regularly. If due to the progress of information technologies and, in general, the developments in the field of discipline the provision of information relates to for an electronic data transfer, one or more of the recommended purchases/provisions must be replaced with other purchases/provisions or if they need expanding, we will notify the buyer thereof in writing, along with all the required specifications, at least 180 days in advance. The parties have agreed that after that period has elapsed, the buyer will change or expand the purchases/provisions at his own expense. Any such purchases/provisions must be maintained by the buyer himself. Furthermore, the buyer himself is, of course, responsible for the correct functioning of such purchases/provisions.
Article 10. PRICES AND CHANGES
Unless indicated otherwise, the prices we quote include VAT and are subject to alteration without notice in that sense that they are based on the then prevailing prices of, for instance, precious metals, exchange rates, import duties and similar levies, insurance rates, freights, taxes, margin schemes and other such factors. If one or more of the aforementioned factors change before delivery is made, we are entitled to change the price in a fair way, at our discretion, in which case the buyer is entitled to dissolve the agreement when it concerns a price increase of more than 10%. For orders below EUR 100 or the equivalent in foreign currency, shipping and administrative costs are also payable, which will be at our discretion. In the case of a price reduction imposed by third parties, we are entitled to cancel the transaction within 14 days.
Article 11. COMPLAINTS
The buyer must notify us of complaints about our fulfilment of our obligations in writing, clearly stating the reasons, within ten days of the event in question, failing which any right lapses. After having received and accepted such a complaint, we will endeavour to correct any shortcoming within a reasonable period of time.
Article 12. OTHER
Without our prior written permission, the buyer cannot transfer any rights and obligations ensuing from agreements concluded between ourselves and the buyer, supplemented with anything that ensues from these general terms and conditions.
Transport is at the risk of the buyer. The headings of the articles have no function other than to improve the readability of this text. No rights can be derived from those headings.
Article 13. APPLICABLE LAW
The offers submitted by us and all agreements entered into with us are exclusively governed by the laws of the Netherlands, to the exclusion of the (provisions of the) Vienna Sales Convention.
Article 14. DISPUTES
All disputes will be settled amicably or, if that proves not possible, either by the sub-district court in Arnhem or the court in the town or city where the buyer resides or has his business address, which will be at our discretion.
The general terms and conditions of Eurocase were filed at the Chamber of Commerce and Industry for Central Gelderland in Arnhem on 11 August 2011.