GENERAL TERMS AND CONDITIONS
Article 1 – DEFINITIONS
Article 2 – GENERAL
Article 3 – OFFERS AND BIDS
Article 4 – CONTRACT DURATION, DELIVERY, EXECUTION AND AMENDMENT OF THE AGREEMENT
Article 5 – SUSPENSION, DISSOLUTION AND TERMINATION OF THE AGREEMENT
Article 6 – FORCE MAJEURE
Article 7 – PAYMENT AND COLLECTION
Article 8 – RETENTION OF OWNERSHIP
Article 9 – GUARANTEE, RESEARCH, ADVERTISING AND LIMITATION PERIODS
Article 10 – LIABILITY
Article 11 – ONWARD DELIVERY AND RESTRICTED TERRITORIES
Article 12 – DISCLAIMER
Article 13 – INTELLECTUAL OF PROPERTY AND COPYRIGHT
Article 14 – SAMPLES AND MODELS
Article 15 – OBLIGATION OF SECRECY
Article 16 – APPLICABLE LAW AND DISPUTES
Article 17 – LOCATION AND CHANGE POLICY
Article 1 — DEFINITIONS
1.1 These terms and conditions apply to every offer, quotation and Agreement between Difuzed BV, hereafter to be called: “User”, and a Purchaser to which User has declared these conditions applicable, insofar as these conditions are not explicitly and in writing deflected.
1.2 In the present terms and conditions, the following terms are used in the sense given below, unless explicitly indicates otherwise. ‘User’: Difuzed B.V. as the User of the general terms and conditions. ‘Purchaser’: the other contracting party to the User, acting in the exercise of a profession or business. ‘Agreement’: the Agreement made between the User and Purchaser. ‘Products’: all goods and matters that are the subject of an Agreement. ‘The Parties’: the User and the Purchaser.
Article 2 — GENERAL
2.1 The provisions of these terms and conditions apply to every bids, offers, orders and every Agreement made between the User and a Purchaser and to which the User has declared these conditions to be applicable, insofar as these terms and conditions have not been expressly departed from in writing by the Parties.
2.2 These terms and conditions also apply to any Agreement with User, whereof for its execution User needs to involve third parties.
2.3 These terms and conditions are also written for the employees of User and its management.
2.4 The applicability of any purchasing or other conditions invoked by the Purchaser is explicitly declined.
2.5 In the event that one or more provisions of these terms and conditions at any time becomes completely or partially null and void or annulled, the remaining provisions of these general conditions shall remain fully applicable. The User and the Purchaser shall in such case consult for the purpose of agreeing on new provisions to replace the invalid or annulled provisions, in which connection, if and insofar as is possible, consideration shall be given to the purpose and tenor of the original provision.
2.6 If uncertainty exists regarding the interpretation of one or more provisions of these terms and conditions, the interpretation needs to take place ‘in the spirit’ of these provisions.
2.7 If between Parties a situation occurs that is not covered by these terms and conditions, this situation should be assessed in the spirit of these terms and conditions.
2.8 If User does not always demand strict compliance with these terms and conditions, this does not mean that its provisions do not apply, or that User, in any degree, would lose the right to require compliance with the provisions of these terms and conditions.
Article 3 — OFFERS AND BIDS
3.1 All offers and indications of price made by the User in price-lists, brochures or in whatsoever form shall be entirely without engagement, save where in the offer a deadline for acceptance had been mentioned. An offer or quotation expires whenever the Product referred to in the offer or the quotation becomes unavailable in the meantime.
3.2 Offers made by the User are made without engagement; they will be valid for thirty days, save where otherwise indicated. The User will be bound by such offers only if the Purchaser in writing within thirty days thereof confirms acceptance.
3.3 Delivery times mentioned in offers made by the User are indicative only and where exceeded shall not entitle the Purchaser to rescind or seek damages, save where otherwise expressly agreed in writing.
3.4 User cannot be held to its offers if the Purchaser can reasonably understand that the bids or offers, or any part thereof, contain obvious mistake(s) or clerical error(s).
3.5 Prices mentioned in the said bids and offers are exclusive of VAT and other imposts levied by the government, and also despatch and any shipping and packaging costs, save where otherwise expressly stated.
3.6 In the event that an acceptance deviates (whether or not on minor points) from the bid made in the offer, User will not be bound thereby. In such case the Agreement will not come into being in accordance with such divergent acceptance, save where the User indicates otherwise.
3.7 A composite indication of price shall not oblige User to deliver a part of the Products included in the offer or bid at a corresponding part of the price thus indicated. Offers or bids shall not automatically apply in respect of repeat orders.
3.8 Orders made by the Purchaser may not be withdrawn without the User’s consent. They will be binding on the User only if and insofar as the User has confirmed this in writing. The User will be entitled to refuse orders without giving any reason. A refusal of an order by the User for any reason whatsoever may not under any circumstance give rise to any claim for damages by the Purchaser.
3.9 Orders made by the Purchaser must amount a minimum value of €200,-. There is no minimum amount of Products for orders made by the Purchaser.
3.10 Oral promises made by representatives or intermediaries of User will be binding on User only if confirmed by User in writing.
Article 4 — CONTRACT DURATION, DELIVERY, EXECUTION AND AMENDMENT OF THE AGREEMENT
4.1 The Agreement between User and Purchaser shall be entered into for an indefinite period of time, unless the nature of the Agreement dictates otherwise or if both Parties have explicitly agreed otherwise in writing.
4.2 Is for the execution of certain activities or for the delivery a period agreed or specified, than this will under no circumstances be a firm date. In the event that a deadline is exceeded, the Purchaser must notice User of default in writing. User must provide a reasonable term be allowed to still implement the Agreement.
4.3 In the event that User requires information to be given by Purchaser, the term of delivery shall commence after Purchaser has provided User with said information.
4.4 Delivery will be made ex User’s warehouse or any other (sourcing) location. Purchaser shall be held to take delivery of the Products the moment that User delivers them to him or has them delivered, or the moment at which the Products are put at Purchaser’s disposal under the Agreement. If the Purchaser refuses, or is negligent in providing information or instructions that are necessary for the delivery, then User is entitled to charge the Purchaser an amount for the incurred costs of at least €250. User is also entitled to store the Products at the expense and risk of Purchaser.
4.5 If delivery is made on the basis of the “Incoterms”, the “Incoterms” valid at the moment the Agreement is concluded, shall apply.
4.6 User reserves the right to have the work carried out by third parties.
4.7 User is entitled to execute the Agreement in several phases and thus invoice the performed phases separately.
4.8 If it has been agreed that the contract will be executed in stages, the User reserves the right to suspend execution of the components forming part of a subsequent stage until the Purchaser has approved the results of the preceding stage in writing.
4.9 If during the execution of the Agreement it turns out that for proper execution of the Agreement modifications or additions to the Agreement are necessary, Parties will engage in discussions regarding the revision of the Agreement in a timely fashion. If the nature, scope or content of the Agreement, whether or not at the request or instruction of the Purchaser, the competent authorities et cetera, is changed and the Agreement is changed qualitatively and/ or quantitatively, then this might have consequences for that which originally agreed upon. As a result the initially agreed amount can be increased or decreased. User will try to give a quotation in advance. By amending the Agreement the initially specified period of execution may also change. The Purchaser accepts the possibility of amending the Agreement, including changes in price and period of the execution.
4.10 If the Agreement is changed, including complements, User is entitled to comply therewith after an authorized person within User agrees and after Purchaser agrees with the price and other conditions applicable of the execution, including the time at which the Agreement will be implemented. Failure or delay of execution of the amended Agreement does not result in default of User and is no reason for Purchaser to terminate or cancel the Agreement. Without being in default, User can refuse a request to amend the Agreement, if this could have consequences for the quantity or the quality of the work to be done or delivered in that context.
4.11 If Purchaser defaults in the proper compliance with his obligations towards User, then Purchaser is liable for all the damage (including costs) incurred by User as a direct or indirect result thereof.
4.12 If User agrees a fixed price, User is nevertheless always entitled to increase this price without Purchaser being entitled to terminate the Agreement for that reason, if the increase in price is resulting from an authority or obligation under law or regulation, or its source in an increase in the price of raw materials, wages et cetera or on other grounds not reasonably foreseeable upon entering into the Agreement.
4.13 If the price other than as a result of an amendment of the Agreement exceeds 10% and within three months upon entering into the Agreement, then only Purchaser is entitled to make an appeal to Title 5 Section 3 of Book 6 Dutch Civil Code and to terminate the Agreement by written notice, unless User
is still willing to execute the Agreement on the basis of the originally agreed;
if the price increase is resulting from an authority or an obligation imposed on User by law;
or if it is stipulated that the delivery will take place more than three months after the sale.
Article 5 — SUSPENSION, DISSOLUTION AND TERMINATION OF THE AGREEMENT
5.1 User shall be authorised to suspend the fulfilment of the obligations under the Agreement or to dissolve the Agreement, in the event that:
Purchaser does not (timely) fulfil or does not fully fulfil his obligations resulting from the Agreement;
after the Agreement has been concluded, User learns of circumstances giving good ground to fear that Purchaser will not fulfil his obligations. If good ground exists to fear that Purchaser will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
Purchaser was asked to furnish security to guarantee the fulfilment of his obligations resulting from the Agreement when the Agreement was concluded and that this security is not provided or insufficient. As soon as security has been furnished, the authority to suspend will be lost, save where such satisfaction is thereby unreasonable delayed.
If, due to delay on the part of Purchaser, it can no longer be expected from User to fulfil the Agreement at the originally agreed conditions, then User is entitled to dissolve the Agreement.
5.2 Furthermore, User is entitled to dissolve the Agreement if circumstances arise of such nature that fulfilment of the Agreement is impossible or if other circumstances arise of such nature that the unaltered preservation of the Agreement cannot reasonably be demanded from User.
5.3 If the Agreement is dissolved, User’s claims against the Purchaser are immediately due and payable. If User suspends fulfilment of the obligations, he shall retain his rights under the law and the Agreement.
5.4 If User decides to suspend or terminate the Agreement, he shall never be bound whatsoever to any compensation of damage and costs thereby arising.
5.5 If the dissolution is attributable to the Purchaser, User is entitled to compensation for the damage, including costs thereby arising, directly or indirectly.
5.6 If the Purchaser fails to fulfil his obligations under the Agreement and this failure justifies dissolution, then User is entitled to terminate the Agreement forthwith and with immediate effect, without any payment obligation of any compensation or indemnification, while the Purchaser, by virtue of default, does have the obligation to compensate or indemnify.
5.7 If User prematurely terminates the Agreement, User shall, in consultation with the Purchaser ensuring transfer of the unfinished work for the Agreement to a third party, unless the termination is attributable to User. If the transfer of the work brings additional costs for User, these costs will be charged to the Purchaser. Purchaser is obliged to pay these costs within the in this terms and conditions aforementioned period, unless User indicates otherwise.
5.8 In the event of liquidation, of (application for) suspension of payment or bankruptcy, of sequestration – if and as far as the sequestration has not been lifted within three months – at the expense of Purchaser, of debt repayment or another circumstance depriving Purchaser of the right to have free disposal of his capital, User is entitled to terminate the Agreement forthwith and with immediate effect, as well as cancel the order or Agreement, without any obligation on his part to pay any compensation or indemnification. The claims of User on Purchaser in this case become immediately due and payable.
5.9 If Purchaser cancels an order already placed, in whole or in part, then the appropriate ordered or prepared Products, increased with possible costs for supply, transport or delivery thereof and the working time reserved for the execution of the Agreement, will be charged integrally to Purchaser.
Article 6 — FORCE MAJEURE
6.1 The Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
6.2 Force majeure shall be understood in these conditions, in addition to the law and jurisprudence, as all external causes, foreseen or unforeseen, over which User has no influence, but which makes User unable to fulfil its obligations. This includes strikes within the company of User, its suppliers or other third parties. User also has the right to appeal to force majeure if the circumstances that hinder (further) fulfilment of the Agreement, occur after User should have fulfilled its obligation.
6.3 User may suspend its obligation during the period that the force majeure occurs. If this period last for longer than two months, then each Party is entitled to terminate the Agreement, with no obligation to pay compensation to the other Party.
6.4 Insofar User has already partially fulfilled his obligations resulting from the Agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, User shall be entitled to invoice the part already fulfilled or still to be fulfilled respectively. The Purchaser shall be held to pay this invoice as if it were a separate agreement.
Article 7 — PAYMENT AND COLLECTION COST
7.1 Payment must be made within 14 days after the invoice date in a way indicated by User and in the currency in which the Products were invoiced, unless User has indicated otherwise in writing. User is entitled to send out summary invoices.
7.2 If the Purchaser fails to fulfil his payment obligation within the term of fourteen (14) days, then Purchaser is in default by operation of law. In that event, Purchaser is due an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest over the due amount will be calculated from the day Purchaser is in default until the moment of payment of the due amount in full. All costs incurred for collecting the receivable is for the account of the Purchaser.
7.3 User will be entitled to have the payments made by the Purchaser in the first instance in reduction of the costs, thereafter in reduction of the accumulated and overdue interest payable and finally in reduction of the principal and accrued interest.
7.4 User has the right, without being in default, to refuse an offer for payment, if the Purchaser designates a different sequence of attribution of the payment. User is entitled to refuse full payment of the principal amount, if said payment does not include the interest still due, the current interest and the costs (of collection).
7.5 The Purchaser is never entitled to set-off of the amount due to User.
7.6 Objections to the amount of an invoice never suspend the payment obligation in any way. The Purchaser who may not appeal to Section 6.5.3 (Articles 231 to 247 of Book 6 Dutch Civil Code) is not entitled to suspend the payment of an invoice for any other reason.
7.7 If the Purchaser is in default or omission in the (timely) fulfilment of its obligation(s), then all reasonable costs incurred in obtaining payment out of court are on behalf of the Purchaser. The extrajudicial costs will be calculated based on what is generally accepted in the Dutch debt collection practice, currently under the calculation according Rapport Voorwerk II. If User is confronted with higher costs for collection, which was reasonably necessary, the actual costs are to be for the account of the Purchaser. Any judicial and execution costs incurred will also be charged to the Purchaser as well. Purchaser is also due any interest on the collection costs.
Article 8 — RETENTION OF OWNERSHIP
8.1 All Products delivered by User remains the property of User until the Purchaser has fulfilled all of the obligations under the Agreement(s) entered into with User (reserved Products).
8.2 All Products delivered and all Products to be delivered by User will remain the property of User until all claims which User may have now or may have in the future against Purchaser, including at least the claims mentioned in paragraph 2 of article 3:92 Dutch Civil Code, have been fully paid.
8.3 Purchaser is allowed to utilize the reserved Products and to resell them in the ordinary course of business as long as Purchaser is not in default of payment. Purchaser already now assigns the claims for payment against his/her customers resulting from a resale of the reserved Products as well as the claims regarding reserved Products that arise from other legal reasons against his/her customers or third parties and this irrespective of whether the Product was resold without or after processing. Even after having assigned a claim, Purchaser remains authorised to collect it. Our authority to collect the claim ourselves remains unaffected thereof.
8.4 As long as there is retention of ownership on the delivered Products, the Purchaser has no right to offer the Products as collateral, to pledge or in any other manner to encumber Products.
8.5 The retention of title stipulated under 1. of the present article does not affect the fact that the risk attaching to the use and storage of the delivered Products, in the broadest sense of the word, passes to the Purchaser from the moment of the actual delivery.
8.6 The Purchaser must at all times do everything that can be reasonably expected from him to safeguard the property rights of the User.
8.7 If third parties seize the Products delivered under a retention of title or wish to establish or assert a right to them, Purchaser will be held to inform User thereof immediately.
8.8 Purchaser shall undertake to insure the Products delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand. In case of a potential insurance payment User is entitled to these insurance proceeds. As much as needed Purchaser commits itself towards User in advance for its cooperation with all that in that context is (or appears) necessary or desirable.
8.9 In the event that User wishes to exercise his ownership rights mentioned in the present article, Purchaser in advance unconditionally and irrevocably consents to User and third party designated by the User to enter all those places where the properties of User are located and take those Products back.
Article 9 — Payment
9.1 User shall guarantee that the Products to be delivered shall meet the usual requirements and standards that can be set for and made upon them and that they shall be free of any defect whatsoever.
9.2 The guarantee mentioned under 9.1 shall be valid for a period of 1 month following delivery, save where the Parties have explicitly and in writing departed from this. If the guarantee provided by User concerns Products produced by a third party, then the guarantee is limited to the guarantee provided by the producer of the Products, unless stated otherwise.
9.3 Any form of guarantee expires if a defect is due to or resulting from injudicious or improper use thereof or incorrect storage thereto by Purchaser and/ or by a third party, if, without User’s written permission, Purchaser of a third party have made, or have tried to make changes to the Product, have attached other items to it that should not be attached to it or if these were processed or treated in a manner different from the method prescribed by User. Purchaser neither can have a claim for guarantee if the defect is due to circumstances User cannot have any influence on, including weather conditions (such as for instance, but not only, extreme rainfall or temperatures) etcetera.
9.4 Purchaser is obliged to (let) inspect the delivered goods, immediately at the moment that the Products are made available to him and/ or the relevant work has been carried out. In doing so, the Purchaser examines if the quality and/ or quantity of the delivered Products corresponds to what has been agreed and satisfies the requirements that Parties have agreed upon in this respect. Any visible defects must be reported to User in writing within seven days after delivery. Any defects that are not visible must be reported immediately, but in any event within fourteen days, after discovery thereof in writing to User. The report must contain a description of the defect as detailed as possible, to enable User effective reacting. Purchaser shall provide the opportunity to User to (let) investigate a complaint.
9.5 If Purchaser complains in time, this does not suspend its obligation to pay. In this case, Purchaser remains bound to accept and pay for the remaining ordered Products and/ or services.
9.6 If a notification of defect is not made in time, then Purchaser is not entitled to repair, replacement or compensation.
9.7 If it is certain that a Product is defective and that with respect to that the complaint has been made in time, then User will within a reasonable period of time after the defective Product is received back, or, if return is not reasonably possible, upon written notice of the defect by the Purchaser and at the discretion of User, replace the Product or look after repair, or pay the Purchaser a compensation fee for replacement. In case of replacement, the Purchaser will be required to return the Product to User and to provide the title to User, unless User indicates otherwise.
9.8 If it is established that a complaint is unfounded, any resulting costs, including research costs User will have made, will entirely be for the account of the Purchaser.
9.9 After expiration of the guarantee period, all costs for repair or replacement, including administration, shipping and call out charge, will be charged to Purchaser.
9.10 As a deviation from the legal terms of limitation, the term of limitation for all claims and please against User and by User involved third parties for the execution of the Agreement, is one year.
Article 10 — LIABILITY
10.1 If User is liable, this liability is limited to the conditions in this provision.
10.2 User is not liable for any loss or damages of whatsoever kind, arisen from the fact that User has assumed on incorrect and/ or incomplete information provided to him by or on behalf of the Purchaser.
10.3 If User is liable for any damages, the liability of User is restricted to a maximum of twice the invoice value of the order, at least for that part of the order on which the liability relates.
10.4 User’s liability shall at all times be limited to a maximum equaling the amount of the payment to be made by User’s insurer in the occurring event.
10.5 User is solely liable for direct damage.
10.6 Direct damage shall be understood to be exclusively:
the reasonable costs incurred to establish the cause and the volume of the damage, in so far said establishment relates to damage in the sense of the present conditions.
the reasonable costs possibly incurred to have User’s faulty performance meet the conditions of the Agreement, insofar such faulty performance can be attributed to User and reasonable costs incurred to prevent or limit the damage.
Insofar the Purchaser demonstrates that said costs have led to the limitation of direct damage as meant in the present general conditions.
10.7 User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
10.8 The limitations of liability for direct damage contained in the present conditions shall not apply if the damage is due to intentional act or omission or gross negligence on the part of User or his subordinates.
Article 11 — ONWARD DELIVERY AND RESTRICTED TERRITORIES
11.1 The Purchaser may only deliver onwards the Products supplied by the User in the User’s original unaltered packaging and may not furnish them with any other marks or indications, save where otherwise expressly agreed in writing.
11.2 Purchaser is not allowed to sell the Products in restricted territories designated by User.
Article 12 — DISCLAIMER
12.1 The Purchaser indemnifies User against any claims of third parties, who suffer damages related to the execution of the Agreement, whereof the cause is imputable of others than User.
12.2 If for that reason User is addressed by a third party, the Purchaser is obliged to legally stand by User and do what is expected of him in that case immediately. If the Purchaser defaults in taking adequate measures, User is entitled to proceed itself, without notice. All costs and damages on the part of Users and third parties will be borne by the Purchaser.
Article 13 — INTELLECTUAL PROPERTY AND COPYRIGHT
13.1 User retains the rights and powers to which he is entitled based on the Copyright Act and other intellectual property laws and regulations.
13.2 The Purchaser shall not be permitted to make changes to the Products, save where otherwise may follow from the nature of the Products supplied or where otherwise agreed in writing.
13.3 For the use of logos, illustrations, photographs, brand names etcetera by the Purchaser of Products delivered by the User, an advance written request must be made. The use thereof must be confirmed in writing by the User. Even where a Purchaser has received a written confirmation, the User shall at all times retain the right to cancel such confirmation in writing without the need to give any reason therefor.
Article 14 — SAMPLES AND MODELS
14.1 Samples and models, as well as any other documentation and brochures that are shown and provided to the Purchaser, are only intended as an indication or an example and in no way imply that the Products to be delivered will be exactly the same, save where it has expressly been agreed that the Products will correspond thereto.
Article 15 — OBLIGATION OF SECRECY
15.1 Purchaser will keep confidential information strictly confidential and in respect thereof observe at least the same duties of care and guarantees as applying to its won internal confidential information and will commit its employees and other persons working for her to comply with the conditions of this Agreement.
15.2 Without written permission of User confidential information can only be used for the purpose for which it was provided. The Purchaser will not use the confidential information for his own benefit.
Article 16 — APPLICABLE LAW AND DISPUTES
16.1 The Dutch law applies to all legal relationships in which User is a party, also if a contract is wholly or partially executed abroad or when the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
16.2 The judge in the location of User has exclusive jurisdiction to take note of disputes, unless the law requires otherwise. Nevertheless User has the right to submit the competent court according to law.
16.3 Parties will appeal to the courts only after they have made every effort to resolve a dispute by mutual agreement.
Article 17 — LOCATION AND CHANGE POLICY
17.1 These terms and conditions are registered at the office of the Kamer van Koophandel in Amsterdam
under number 350 259 16.
17.2 The most recently registered version of these terms and condition or the version valid at the time of the conclusion of the legal relationship with User are applicable.
17.3 The English text is decisive for the interpretation of these terms and conditions.