GENERAL TERMS AND CONDITIONS OF THE IMPULSE FACTORY B.V.
Article 1: General
1.1 All our offers and agreements and their execution are subject only to these terms and conditions. Any deviations should be agreed with us explicitly in writing.
1.2 In these terms and conditions, ’the other party’ refers to any (legal) person that has concluded, or wishes to conclude, an agreement with our company, and also that person’s representative(s), attorney(s), legal representative(s) and heirs.
1.3 The applicability of the general terms and conditions applied by the other party is excluded explicitly.
Article 2: Offers
2.1 All offers remain valid for a period to be indicated by us. If no such period has been indicated, our offers are without obligation.
2.2 Sending out offers and/or brochures, price lists, etc. does not oblige us to supply or accept the order.
2.3 We reserve the right to refuse orders without stating our reasons, or to supply against cash on delivery.
Article 3: Agreement
3.1 Subject to what is stated below, an agreement has not been concluded until we have accepted or confirmed an order in writing. The order confirmation is considered to represent the agreement correctly and in full.
3.2 Any additional arrangements or amendments made at a later stage, or any (oral) arrangements and/or promises made by our staff or on behalf of us by our salespersons, agents, representatives or other intermediaries, are binding on us only if they have been confirmed by us in writing.
3.3 Any agreement concluded by us is subject to the contingent condition that the other party - according to our assessment - appears to be sufficiently creditworthy to observe the agreement financially.
3.4 At the time of or after conclusion of the agreement, we are entitled to demand a guarantee from the other party that it will observe both its payment and other obligations before we (continue to) perform our services.
3.5 If we consider this necessary or desirable, we are entitled to bring in others for the correct execution of the agreement, the costs of which will be charged to the other party in accordance with the quotations provided. The other party is entitled to cancel the agreement for this reason, under payment of the services already supplied or performed, if he can produce well-founded reasons for this.
3.6 In the event of cancellation by the other party of an agreement that has already been concluded, we will charge 15% of the order price on the basis of loss of profit; the work that has already been carried out or any costs that have been incurred will also be charged.
Article 4: Prices
4.1 Unless otherwise stated, all prices are quoted subject to price amendments.
4.2 Unless otherwise stated, our prices are:
- based on the level of the purchase prices, wages, wage costs, social and government charges, freight, insurance premiums and other
costs applicable at the time of the offer;
- based on supply ex-company, warehouse or other storage place;
- exclusive of VAT, import duties, and other taxation, levies and duties;
- exclusive of the costs of loading and unloading, transport and insurance;
- stated in Netherlands currency and/or euros; any changes in the exchange rate are charged on.
4.3 In the event of a rise in one or more of the cost price factors which cannot be anticipated within reason, we are entitled to raise the order price accordingly, in compliance with any relevant legal regulations, on the understanding, however, that any known future price rises must be stated on the order confirmation, and without prejudice to the other party’s right to dissolve the agreement on this ground.
Article 5: Raw materials
All sales take place under the resolutive condition that we will purchase the necessary raw material at normal prices and in sufficient quantities.
In the event that the resolutive condition is complied with, we will be obliged to notify the other party in writing and/or orally without delay.
Article 6: Delivery and delivery time
6.1 Unless otherwise agreed, the goods will be delivered to the other party’s company. The time of delivery is the moment when the goods leave our company/warehouse. Goods are only delivered carriage paid if and insofar as this has been indicated by us on the invoice or otherwise.
6.2 The other party must check the supplied goods/packaging for any shortcomings or damage immediately on delivery or after communication on our part that the goods are available to the other party.
6.3 The other party must ensure that any shortcomings of or damage to the supplied goods/packaging present on delivery are mentioned on the delivery note, the invoice and/or the transport documents, failing which the other party is considered to have approved the goods delivered. At this stage, any claims regarding these goods will no longer be dealt with.
6.4 We are entitled to supply in parts (part deliveries), which we may invoice separately; the other party will be obliged to pay in accordance with the provisions of article 12 of these terms and conditions.
6.5 The delivery time is always stated approximately, unless otherwise agreed explicitly.
6.6 We are obliged to observe the delivery time as far as possible. However, we cannot be held responsible for exceeding the delivery time if this was not foreseeable within reason at the time when the agreement was concluded. In such cases, including circumstances such as a company breakdown, a strike, a lock-out, the non-delivery or late delivery of ordered raw materials, unrest and fire, we are entitled, in consultation with the other party, to cancel the agreement or extend the delivery time.
6.7 Subject to the provision of the previous clause, we may be held responsible for exceeding the delivery time only after we have been granted a reasonable period for compliance and after we have been declared in default in writing by the other party.
6.8 If the other party does not collect the goods after expiry of the delivery time, they will be stored at the other party’s disposal, at its expense and risk.
Article 7: Transport/risk
7.1 If the other party has not provided us with any further indication, the method of transport, dispatch, packing, etc. will be determined by us according to good business practice, without us being liable for this in any respect.
Any specific requirements of the other party as regards transport or dispatch will only be observed if the other party has stated that it will pay the extra costs.
7.2 The dispatch of goods, including any agreed carriage-paid dispatch, will always be at the expense and risk of the other party, even if the carrier demands that consignment notes, transport addresses, etc. include the clause that any damage caused during transport is at the sender’s expense and risk.
Article 8: Non-contributory negligence in fulfilment
8.1 Non-contributory negligence is understood to mean negligence which is not due to our fault and should not be at our expense according to the views prevailing in the law, legal action or society. The causes of non-contributory negligence include a strike, excessive absenteeism by our staff, transport difficulties, extreme weather conditions, fire, government measures (including in any case import and export bans), contingencies and breakdowns at our company or at our suppliers, and any non-fulfilment by our suppliers as a result of which we can not/no longer fulfil our obligations towards the other party.
8.2 In the event of non-contributory negligence in fulfilment we have the right, in mutual consultation with the buyer, to agree on a period within which fulfilment may still take place. If fulfilment is no longer possible, or if we do not apply the aforementioned right, the parties may regard the agreement as dissolved, in which case they should notify the other party in writing. They will not be held to pay any damages, subject to the provisions of art. 6:76 BW (Civil Code).
8.3 We are entitled to demand payment for the performance of services involved in the execution of the relevant agreement that were carried out before a situation as referred to in this article occurred.
Article 9: Liability
9.1 With the exception of our responsibility under mandatory legal provisions and generally applicable rules of reasonableness and fairness, we are not obliged to pay any damages of whatever nature, direct or indirect, including consequential damage to movable property, real estate or persons, affecting the other party or third parties.
9.2 With the exception of the cover under our liability insurance, our liability is always restricted to the net invoice value of the goods supplied.
9.3 We indemnify the buyer against any liability for damages as referred to in art. 6:165 ff. BW. We are not held to such indemnification in the exceptional cases as referred to in art. 6:185 BW or if the fault can be attributed within reason to the buyer or a third party for whose actions the buyer is responsible, and we are not.
9.4 We are not held to such indemnification if the buyer has removed the product supplied by us from the packaging, which is intended for distribution of the product among consumers, or if the buyer has changed or opened said packaging, unless the buyer proves that there is no causal link between such action by the buyer and the fault in the product supplied.
9.5 We undertake to take out sufficient insurance against any damage as a consequence of product liability.
9.6 In the event that the buyer is held liable by a consumer on the basis of art. 6:185 BW, the buyer must notify us within three working days. The further regulation of who may be held liable will take place following consultation, whereby the buyer will not acknowledge any liability or grant any compensation until agreement on this has been reached between us, the buyer and the insurer.
Article 10: Complaints
10.1 We will deal with any claims only if they reach us - directly - within 48 hours of delivery of the relevant articles, with a detailed description of the nature and grounds of the complaints.
10.2 Complaints about invoices should also be submitted in writing, within 8 days of the invoices’ posting dates.
10.3 After expiry of this term, the other party is considered to have approved the goods supplied or the invoice. We will not deal with any complaints after this term.
10.4 Insofar as the goods concerned are perishable, the other party is obliged to store the goods, after delivery, according to the specifications supplied by us, failing which we will not accept any complaints.
10.5 If we conclude that the complaint is legitimate, we will be obliged only to replace the faulty products, without the other party being entitled to any form of compensation.
10.6 The goods supplied may be returned only with our prior written permission.
Article 11: Reservation of title
11.1 As long as the buyer has not paid in full, the goods will remain our property. In the event that the buyer fails to comply with his obligation to pay, we will be entitled to take the goods back, without any proof of default and without court intervention.
11.2 The buyer may sell on the goods or use them within the context of his normal business practice, but he may not pledge them or give them as a security for a claim by a third party.
Article 12: Payment
12.1 The other party must pay the purchase price no later than within 30 (thirty) days of delivery of the goods, subject to any deviating arrangements laid down explicitly in writing.
12.2 If two or more buyers acted together as such in an agreement, each of them is liable individually for the payment of the purchase price.
If the buyer of the goods is a member of a shopkeepers’ or other association which acts as an intermediary in any form in the purchase and sale of the goods to be delivered or has any interest in this, both the buyer and the shopkeepers’ or other association will be liable for payment.
12.3 If we consider that there is any reason to do so, we have the right to demand a cash payment or an advance payment, and to suspend any further deliveries if one or more previous deliveries have not been paid.
The buyer is obliged to provide a guarantee for the payment of his debts to the seller at the seller’s first request.
12.4 If the other party fails to meet his payment obligation, or fails to meets his payment obligation on time or only meets the obligation in part, or if he fails to comply with any other provision from the agreement, or fails to do so on time or only meets the obligation in part, or if his goods are confiscated, a moratorium is applied for or the other party’s bankruptcy is applied for, the other party will be considered to be in default by law, and the amount due to us will fall due immediately, without an injunction or proof of default, irrespective of any previously made agreements on payment terms, including an increase of 1.5% per month (with part of a month counting as a full month) of the gross invoice amount, until the date of payment, without prejudice to our right to suspend the execution of any current agreements, or to dissolve any agreement with the other party in full or in part, to be decided by us, without court intervention, without us being held to pay any compensation to the other party.
12.5 In the event that we are obliged to submit an invoice that has remained unpaid to a third party for collection, we may charge a payment for any out-of-court legal costs (solicitor, bailiff, collecting agency, etc.) incurred by us of 15% of the gross invoice balance, of a value of at least € 100, excepting the process costs.
Article 13: Governing law
All our offers, agreements and their execution are subject only to Netherlands law.
Article 14: Disputes
14.1 Any disputes, including those that are regarded as such by only one of the parties, resulting from or relating to the agreement to which these terms and conditions apply or the relevant terms and conditions themselves, and the agreement’s interpretation or implementation, either of a factual or of a legal nature, will be settled by the civil court authorised within our area of establishment, insofar as legal provisions allow.
14.2 The provision of the previous clause does not affect our right to submit the dispute to the civil court, authorised according to the normal rules of competence, or to settle the dispute by means of arbitration or binding advice.
© The Impulse Factory B.V., Breda.