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General Terms and Conditions CraftEmotions

 

Article 1 Applicability of these General Terms and Conditions
1.1 These General Terms and Conditions shall apply to all legal relationships in which the Vendor acts as a vendor, a supplier of goods or a service provider. The applicability of the general terms and conditions used by the Purchaser is hereby specifically rejected.

Article 2 Order confirmation and formation of an agreement
2.1 An agreement is formed only by the Vendor’s written order conformation. Only the Vendor’s order confirmation is normative for the contents of the agreement (specifically for the extent of the services). Alterations and/or additions to the agreement are only valid if the alterations and/or additions are confirmed by the Vendor in writing.

2.2 With respect to pictorial representation, descriptions and drawings as well as the size and weight in our offers, brochures, catalogues and price lists, the Vendor reserves the right to make changes to the extent that the object in question is not significantly changed or its quality is improved. If the Vendor shows or provides a model, sample or example, this is always by way of indication. The quality of the goods to be delivered may deviate from the sample, model or example.

2.3 The Vendor’s prices are exclusive of VAT [BTW] ex warehouse or ex-factory. The currency of the invoices is in €/Euro, unless otherwise agreed. The dispatch of the goods is at the Purchaser’s risk and expense. The Vendor itemizes the invoice in accordance with the current legislation. If the turnover tax and identification numbers of a European Purchaser is unknown, the current Dutch VAT rate is charged. The minimum amount of an order is £150,00.

2.4 Transports in the Netherlands or Flanders are free of charge from a value of £150.- (up to the Client’s place of receipt). If the purchase value is very small, there is a surcharge of £ 15.00 per delivery. An extra surcharge on freight will be charged for deliveries of polystyrene articles with a volume of over two square metres.

2.5 The prices that (according to the Vendor’s price lists) were agreed upon when the Agreement was concluded shall apply to the Agreement. The costs of and/or related to the samples provided at the Client’s request will be charged to the Client. Samples without charges shall be returned by the Client at the Client’s expense if so requested.

2.6 Payment shall be made within 14 days after the invoice date.

2.7 In case of the Purchaser’s liquidation, bankruptcy or suspension of payments, or when the Debt Management Natural Persons Act [Wet Schuldsanering Natuurlijke Personen (WSNP)] applies to the Purchaser, the claims against the Purchaser shall be repayable on demand.

2.8 The payments made by the Purchaser will first be applied to settle all interest payable and costs, and subsequently those invoice amounts that have been outstanding for the longest period, even though the Purchaser notifies that the settlement relates to a later invoice. The payment must take place without deduction or setoff. The Vendor reserves the right to require advance or cash payment or, as the case may be, convenient securities.

2.9 The Purchaser is in default after the expiry of 14 days after the invoice date; from the time of default, the Vendor is obliged to pay an interest of 1% per month on the amount due. Moreover, due to the arrears, all other outstanding and not yet overdue invoices become due and payable. Payments by cheque or direct debit are made only after final crediting has taken place. Bills of Exchange are only accepted as payment (against calculating the discount rate and other costs of the Bill of Exchange).

Article 3 Delivery
3.1 Unless otherwise agreed, the delivery takes place ex warehouse or ex-factory. When one of the ‘Incoterms’ has been agreed on as a delivery condition, the Incoterms current at the time of concluding the Agreement shall apply. The risk of destruction and/or deterioration of the goods is transferred to the Purchaser at the time that the goods are transferred for transportation. This applies regardless of the place of delivery and of who bears the transport costs.

3.2 The Purchaser is obliged to take delivery of the purchased goods at the time at which they are delivered or offered to the Purchaser. If the Purchaser refuses or fails to provide information or instructions that are necessary for the delivery, the goods will be stored at the Purchaser’s risk. In such case, the Purchaser shall pay all additional costs, in any case the cost of storage and transport.

3.3 If the Purchaser opts for a special delivery (such as an express delivery, courier service etc.), the extra costs shall be borne by the Purchaser.

3.4 The Vendor is allowed to deliver the sold goods in parts. This does not apply if a partial delivery has no independent value. If the goods are delivered in parts, the Vendor is entitled to invoice each part separately.

3.5 If orders are agreed on a call-off basis and the Purchaser does not call off the goods within the agreed time or, in the absence of an agreed period, within 12 months after formation of the call-off agreement, the call-off  is deemed to have been made on the last day that the goods could be called off or in the absence of an agreed call-off period 12 months after entering into the call-off agreement. In such case, the Vendor is entitled to have the goods concerned stored at the Purchaser’s risk and expense.

Article 4 Delivery date
4.1 An agreed delivery date is no final deadline, unless explicitly otherwise agreed. In case of late delivery, the Purchaser must therefore give the Vendor notice of default.

4.2 The delivery times are based on individual agreements made. The delivery time is met when the goods to be delivered are ready for transport and this is communicated to the Purchaser.

4.3 If the Vendor cannot meet the agreed delivery time for reasons for which the Vendor is not responsible (such as failures, strikes,  lockouts, problems related to energy supply, delays in the delivery of essential raw materials and commodities, etc.) the Vendor will inform the Purchaser of this immediately. In such an event, the Purchaser is not entitled to terminate the contract. If it is not expected that the Vendor is able to perform its services within a reasonable period (within 4 months at the latest) both the Vendor and the Purchaser are allowed to terminate the Agreement. The same applies if the causes still exist 4 months after the Vendor’s notification. If the causes for the overdue delivery were already recognisable during the conclusion of the Agreement, the Purchaser is not entitled to terminate the Agreement.

Article 5 Termination of the Agreement
5.1 The Vendor’s claims against the Purchaser shall be immediately due and payable if:
  - after the conclusion of the Agreement, the Vendor has knowledge of circumstances that give good reasons to fear that the Purchaser will not meet the obligations;
  - the Vendor requested the Purchaser to provide security for the performance and this security is not forthcoming within the stipulated period or is insufficient.

5.2 In the above-mentioned cases, the Vendor is entitled to suspend further performance of the Agreement or to terminate the Agreement, all of this without prejudice to the right to claim damages.

5.3 If circumstances arise with regard to persons and/or materials of which the Vendor makes use or uses it commonly in the course of performing the Agreement and which are of such nature that performing the Agreement becomes impossible or so problematic and/or disproportionately expensive that fulfilment of the obligation under the Agreement cannot reasonably be demanded, the Vendor is entitled to terminate the Agreement.

Article 6 Warranty
6.1  The Vendor warrants that the goods it delivers are free from design, material and manufacturing defects for a period of one year from the time of delivery.

6.2  If a complaint under the warranty is found to be justified by the Vendor, the Vendor, at its option, is only obliged to deliver what is lacking, to replace the item to which the complaint is related or to repay the Purchaser the price against returning the goods to which the complaint is related.

6.3  The Vendor is liable for any damage caused by a defect of the item delivered in accordance of the provisions of Article 10 (Liability).

6.4  The warranty ceases to apply if the Purchaser caused the damage by incompetent use of an item under warranty.

6.5  If the defect of the product can be imputed to a third party, the Vendor is entitled to transfer the guarantee claim against the supplier in question to the Purchaser. In such an event, the Vendor can only be held liable if the Purchaser has exercised its claims against the supplier in question.

Article 7 Retention of title
7.1 The goods delivered by the Vendor will remain the Vendor’s property until the Purchaser has met all of the following obligations under the sales agreement concluded with the Vendor;

 - the consideration(s) related to the goods/articles themselves that are or will be delivered;
 - the consideration(s) related to the services provided or to be provided by the Vendor on the basis of the sales agreement(s);
 - any claims due to the Purchaser’s non-performance of these agreement(s)

7.2  The property-law consequences for an item intended for export shall be governed by the laws of the country of destination of the item concerned, if the retention of title based on the laws of the country of destination does not lose its force until the full price has been paid, unless otherwise decided by the Vendor.

7.3  The goods delivered by the Vendor that pursuant to paragraph 1 fall within the scope of the retention of title are allowed to be sold on only within the frame of normal business operations. It should be noted that the Purchaser is not authorised to pledge the goods or to create any other right to it.

7.4  Should the situation arise, the Vendor retains the right of pledge on the delivered goods that on account of payment have passed into the Purchaser’s ownership and are still in the Purchaser’s hands as referred to in Book 3 Article 237 of the [Dutch] Civil Code [art. 3:237 BW] as an additional security for the claims other than those mentioned in paragraph 1 of this Article that the Vendor may have against the Purchaser for whatever reason. The authority referred to in this Article also applies in respect of goods supplied by the Vendor that have been treated or processed as a result of which the Vendor has lost his right of retention.

7.5 If the Purchaser fails to fulfil the obligations or there is reasonable fear that the Purchaser will not do so, the Vendor is entitled to take away or arrange to take away the delivered goods in which the Purchaser or third parties, who keep the goods on behalf of the Purchaser, has retained title referred to in paragraph 1. The Purchaser is obliged to provide all cooperation under penalty of a fine of 10% of the amount payable by the Purchaser.

7.6 If third parties wish to establish or assert a right to the goods delivered under retention, the Purchaser is obliged to inform the Vendor as soon as reasonably may be expected.

7.7  The Purchaser undertakes on the Vendor’s first demand
 - to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage and against theft, and to give access to his insurance policy;
 - to pledge all of the Purchaser’s claims against insurers pertaining to the goods delivered under retention of title to the Vendor in the manner stipulated in Book 3 Article 239 of the [Dutch] Civil Code [art. 3:239 BW];
 - to pledge to the Vendor the claims that the Purchaser receives with respect to the Purchaser’s customers when the goods delivered by the Vendor under retention of title are sold on in the manner stipulated in Book 3 Article 239 of the [Dutch] Civil Code [art. 3:239 BW]; 
 - to mark the goods delivered under retention of title as the Vendor’s property;
 - to cooperate in other ways in all reasonable measures that the Vendor wants to take for the protection of its ownership rights in relation to the goods and which do not unreasonably interfere with the normal course of its business.

 

Article 8 Defects
8.1  The Purchaser must examine the purchased goods or have the purchased goods examined on delivery or as soon as possible after delivery. In doing so, the Purchaser must examine whether the delivered goods conform to the agreement, namely:
 - whether the correct goods are delivered;
- whether the delivered goods conform the Agreement in terms of quantity (such as the number and the amount);
 - whether the delivered goods meet the agreed quality requirements or, if they are absent, the requirements that may be expected for normal use and/or business purposes.

8.2  In case visible defects or shortcomings are detected, the Purchaser must inform the Vendor in writing within 14 days after delivery.

8.3  Non-visible defects must be notified by the Purchaser to the Vendor in writing within 8 days after detection, but no later than 8 days after delivery.

8.4  If objections are not submitted in time, the delivery is considered approved.

8.5 Even if the Purchaser submits its claim in time, its obligation to pay and purchase the goods to be delivered remains. The goods can only be returned after the Vendor’s prior written consent. Once the Purchaser has received the permission from the Vendor, the Purchaser must return the rejected goods at its own expense. The copy of the invoice, the packing slip and the complaint form must be enclosed with the rejected goods.

Article 9 Collection charges
9.1  If the Purchaser has not met one of its obligations, or has not met them in time, the agreed price and costs and all costs incurred to obtain an out-of-court settlement will be borne by the Purchaser, including the costs of drawing up and sending the reminders, making a settlement offer and obtaining information. In case of shortcoming, the Purchaser must pay in any case:
 - 5% on the first Euro 3,000;
 - 10% on the excess up to Euro 6, 000;
 - 8% on the excess up to Euro 15,000;
 - 5% on the excess up to Euro 60,000;
 - 3% on the excess.
If the Vendor demonstrates that higher costs have been incurred, they will also qualify for reimbursement.

9.2  In all instances, the Purchaser shall pay the legal costs incurred by the Vendor, except in so far as the Purchaser demonstrates that they are unreasonably high. This only applies if the Vendor and the Purchaser conduct legal proceedings regarding an agreement to which these General Terms and Conditions apply and a judgement of the court has become final and conclusive whereby the ruling was fully or mainly against the Purchaser.

Article 10 Liability
10.1 The warranty described in Article 6 (Warranty) of these Terms and Conditions applies to defects in the delivered goods.

10.2 All the Vendor’s liability other than the liability in paragraph 1 is limited to the amount of the payment made by the insurer, unless the damage is due to the Vendor’s or its management’s deliberate intent or wilful recklessness.

10.3 If the insurer in appropriate cases does not pay or if insurance does not cover the damage , the Vendor’s liability is limited to 5 times the value of the invoice plus VAT [BTW] with a maximum of € 2,500.

10.4 The Vendor is never liable for consequential losses and/or lost profits by whatever name.

 Article 11 Intellectual property rights and copyrights
 11.1 In so far as the Vendor uses samples that are developed by the Vendor, the Vendor retains the intellectual property rights and copyrights. Without the Vendor’s written permission, the use by third parties is prohibited.

 Article 12 Client data
 12.1 The Vendor is entitled to store and process all relevant client data within the frame of current legal requirements.

Article 13 Settling disputes
 13.1 The District Court in Utrecht has exclusive jurisdiction to hear all disputes that may arise between the Vendor and the Purchaser. However, the Vendor remains entitled to serve a summons on the Purchaser to appear in a court that has territorial jurisdiction in the Purchaser’s domicile.

Article 14 Applicable law
14.1 The laws of the Netherlands shall apply to all legal relationships between the Vendor and the Purchaser.

Article 15 Amendments to the Terms and Conditions
15.1 The Vendor is entitled to amend these Terms and conditions. These amendments will become effective at the designated time of coming into effect.

15.2 The Vendor shall send the amended Terms and Conditions to the Purchaser in time. If no date of coming into force has been communicated, the amendments intended for the Purchaser will come into force as soon as the Purchaser is informed of the amendment.

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