General terms and conditions of purchase and delivery of products
Agreement: any written agreement concluded between a Seller and a Customer relating to purchase and delivery of a Product.
PinkNova: PinkNova B.V. a private limited liability company (besloten vennootschap) with its statutory seat in Soest, having its registered office address at Weteringpad 7, 3762 EN, registered with the Chamber of Commerce under number 66449227,
Customer: the party indicated as purchaser of a Product in the Agreement.
Force Majeure: circumstances reasonably outside of the control of a Party which prevent or impede, in whole or in part, temporarily or permanently, the execution or implementation of an Agreement, including but not limited to war, mobilisation or military draft of similar scope, requisition, confiscation, natural catastrophe (including without limitation fire, drought, flood, landslide or extreme cold or heat), strikes, lockouts, walkouts or other labour disturbances, an order of any government, court or regulatory body of competent jurisdiction, import restrictions, shortages, blockade, embargo, riot, civil disorder, accidents and (other) interruptions of or impediments to (normal) business operations. With respect to a Seller, any delay or defect in the provision to Seller of services or goods required by Seller to execute and/or implement the Agreement, shall also be regarded Force Majeure.
General Terms: these general terms and conditions of purchase and delivery of products.
Parties: the Seller and the Customer who are parties to an Agreement.
Products: goods sold and delivered by a Seller to a Customer pursuant to an Agreement, in particular the following goods:
Product Information: Each product comes with a box or envelop.
- These General Terms apply to all Agreements, to all offers and quotations of the Seller in relation to a Product, to all orders of a Product by a (potential) Customer, to all confirmations and acceptances of an order of a Product by the Seller and to all changes and/or amendments thereto.
- The applicability of any (general) terms and conditions of a (potential) Customer is hereby expressly rejected and excluded.
- The Seller shall only be bound by terms and conditions that were agreed upon in writing. Provisions that deviate from these General Terms can only be invoked by a Customer if and to the extent that such provisions are accepted by the Seller in writing.
- If any provision of these General Terms or an Agreement is, partially or entirely, declared null and void, non-binding or otherwise inapplicable or unenforceable by any court or tribunal of competent jurisdiction, the other provisions of these General Terms and the Agreement shall remain in full force and effect, unless and insofar as the latter provisions must be deemed to be indissolubly connected with the void, non-binding, inapplicable or unenforceable provision. In such case, Parties shall endeavour to replace the void, non-binding, inapplicable or unenforceable provision by a valid provision which shall reflect the Parties’ original intent and purport to the greatest possible extent.
- In case of inconsistencies between provisions in the Agreement and provisions in these General Terms, the provisions in the Agreement shall prevail.
- Offers, orders, quotations and Agreements
- All offers and quotations of the Seller are non-binding (“vrijblijvend”) and the Seller is therefore entitled to revoke an offer or quotation at all times.
- Offers or quotations of the Seller that do not contain a stipulated date of acceptance shall lapse in case they are not accepted by a (potential) Customer in writing within thirty (30) days after the date of the respective offer or quotation.
- The Seller shall only be bound to an offer or quotation made by it if and insofar (i) the Customer has accepted and signed the offer or quotation, (ii) the Seller has received a signed written version of the offer or quotation from the (potential) Customer (either original or sent by email) and (iii) the Seller has not revoked the offer or quotation within five business days after receipt of the signed written copy of the offer or quotation, or, in case the Seller commenced performance of the offer or quotation in which case the respective Parties are deemed to have entered into an Agreement under the terms and conditions as included in the respective offer or quotation.
- Orders and acceptances of offers or quotations of the Seller by a (potential) Customer are irrevocable.
- A (potential) Customer can only accept an offer or quotation of the Seller in full and under the full terms and conditions as included therein. Any partial acceptance by a (potential) Customer of an offer or quotation of the Seller and/or any amendments and/or changes to such offer or quotation by the (potential) Customer shall not be binding on the respective Seller unless that Seller has subsequently approved such amendments and/or changes in writing.
- Product Information
The Seller is entitled to change or amend Product Information at all times without any prior notice to or approval of a (potential) Customer.
- Unless stated otherwise, all prices set by or agreed to with the Seller are net prices and are therefore exclusive of, amongst others, VAT, custom duties and other applicable taxes. Unless stated otherwise, prices set by or agreed to with the Seller are also exclusive of the costs of (special) packaging, loading, transport, unloading, warehousing, storage, insurance, installation, assembly and/or other services. Unless stated otherwise, prices set by or agreed to with the Seller are based on delivery in accordance with article 2 of these General Terms.
- Unless stated otherwise, all references to prices are either in EUR or USD.
- Should the Seller provide packing, packaging, loading, transport, unloading, insurance, or other services without having expressly and in writing agreed to a price therefor, the Seller is entitled to charge the Customer the actual costs or its usual rates therefor.
- Prices set by or agreed to with the Seller are based on the cost price at the time the prices were set or agreed to. If the cost price increases thereafter, for example due to inflation, changes in currency rates, customs duties, taxes, raw material prices and/or changes in other costs, the Seller is entitled to charge the Customer with a corresponding price increase.
- Prices included in a quotation or offer of the Seller are only valid for the quantities as indicated in the quotation or offer.
- Unless otherwise agreed in writing it shall solely be the responsibility of the Customer to ensure that the Products sold can be legally applied in the Customer’s country and for the intended purpose, including by obtaining the required approvals, if any, by public authorities or private persons for importation and application.
- Unless other terms have been explicitly agreed upon in writing, delivery shall be made in accordance with the terms of PostN.
- A delivery period set by or agreed to with the Seller is based the Seller’s best judgement.
- The delivery period starts after the conclusion of an Agreement, and after the Seller has received all items, documents and data to be provided by the Customer, and after any agreed upon advance payment has been received by Seller and/or any agreed upon security for payment has been put at Seller’s disposal.
- Apart from the exception provided by article 3 of these General Terms and unless explicitly agreed otherwise, goods to be delivered by the Seller are deemed to be delivered as soon as they have left the factory or warehouse of the Seller or third parties brought in by it for transport to or for the benefit of the Customer.
- Failure to deliver within the delivery period does not entitle the Customer to additional or substitute damages (aanvullende of vervangende schadevergoeding), nor to non-fulfilment by it of any of its own obligations arising from the Agreement. The Customer is, however, entitled to rescind the agreement by a written declaration, if and insofar as after the above-mentioned failure to deliver, the Seller still fails to deliver the agreed upon goods within a reasonable period as agreed to with the Customer in writing, which reasonable period shall be a minimum of three (3) weeks.
- Delivery periods shall be extended by the amount of time that the execution or implementation of the Agreement is delayed by Force Majeure. Delivery periods shall also be extended by the time that the Customer is later in the fulfilment of any obligation under the Agreement.
- If the Seller has agreed to a penalty for late delivery, then that Seller is only obliged to pay such penalty if the late delivery was due to its own negligence and the Customer supplies evidence of an actual loss suffered as a result of such late delivery. The penalty due is never higher than the amount of the loss actually suffered.
- The Seller has the right to deliver in parts. Each partial delivery will be deemed an independent delivery with respect to the applicability of these General Terms.
- Inspection and acceptance of delivery
- The Customer shall cooperate without delay with any inspection or test agreed upon. If the Customer does not cooperate with the inspection or test on time or at the agreed upon time, the objects of such inspection or test shall be deemed to have been approved by the Customer.
- The Customer shall accept delivery at the time at which the goods to be delivered are ready for transport or dispatch.
- If the Customer does not cooperate in a timely fashion or at the agreed upon time with inspection, testing, or acceptance of delivery, the goods will be deemed to be delivered at the time that inspection, testing or acceptance could have been required or expected by the Seller, in deviation from article 5 of these General Terms.
- A Seller is entitled to compensation from the Customer for damages and costs as a consequence of refusal of or delay in the inspection, testing or acceptance.
- Goods cannot be rejected until the Seller has been afforded an opportunity to remedy any defects appearing at inspection or testing within a reasonable period of time of a minimum of 2 weeks. Should the Customer make no use of an opportunity for inspection or testing, then the goods shall be deemed to be approved.
- Risk and transfer of title
- Goods to be delivered by the Seller are at the risk of the Customer from the moment the goods are deemed to be delivered in accordance with article 5 or article 7.3 of these General Terms.
- Loading, dispatch or transport, unloading and insurance of the goods to be delivered takes place at the risk of the Customer, even if these are handled by or on behalf of the Seller.
- All goods delivered by the Seller shall remain the property of that Seller until such time as the Customer has paid in full all that which is owed to the Seller in connection with the underlying Agreement and/or earlier or later Agreements of the same nature, including damages, costs and interest. The Customer has no right of retention with respect to these goods.
- All industrial and intellectual property rights to or associated with the goods delivered remain with the Seller or third parties entitled thereto, and are never transferred to the Customer.
- Force majeure
- Any Party affected by an event of Force Majeure shall immediately inform the other Party in writing of the beginning and the reasonably anticipated end of such Force Majeure event.
- In addition to extension of the period of delivery in accordance with article 7 of these General Terms and except as otherwise expressly stated in an Agreement, performance by the Seller of its obligations under such Agreement shall be suspended and shall be extended by any period of delay caused by Force Majeure on the part of the Seller.
- In case of Force Majeure on the part of a Seller, such does not entitle the Customer to any compensation, nor does it entitle the Customer to rescind or otherwise terminate the Agreement.
- In case of Force Majeure on the part of a Customer, its obligations are suspended. If the Force Majeure lasts longer than three months, both Parties are authorised to rescind the non-feasible parts of the Agreement by a written declaration, without prejudice to the provisions of article 12.
- Warranty on Products
- Seller warrants the good quality of Products it delivers to the extent that in case of defects in materials or finishing which appear during the warranty period and for which claims are submitted by the Customer to the Seller in writing and in a timely fashion, Seller will either redeliver at no cost, or repair the Product in question at no cost, or credit the Customer as far as reasonable in whole or in part for 20% the invoice value of the Product in question, all of this at Seller’s option. Repair and/or redelivery as meant here shall exclusively take place within the Netherlands.
- Unless the Agreement explicitly provides otherwise, the warranty period is 2 months after delivery.
- A Customer must notify the Seller in writing of noticeable defects of a Product no later than at the time of an agreed upon inspection or test, or, if such an inspection or test has not been agreed upon, within 7 days after delivery.
- All other defects must be notified by the Customer to the Seller in writing within 7 days after their they were identified or should have been identified by the Customer.
- Any claim of a Customer and warranty on a Product lapses in case a defect in a Product is not timely notified in writing by the Customer to the Seller in accordance with articles 3 and 10.4 of these General Terms.
- Any right to warranty on a Product and any claim with respect to or in connection with a Product lapses if:
- instructions given by Seller for, washing, storage, and/or use of the Product are not followed exactly;
- the Products delivered are used improperly, modified or other than in conformity with the agreed or intended purpose;
- the Customer or third parties not brought in by Seller has/have performed operations on the Products delivered by Seller without Seller’s prior written permission;
- the Customer has not fulfilled any of its obligations toward Seller arising from the underlying Agreement, or has not fulfilled them adequately or in time.
- For Products or parts of Products which Seller procures from third parties, the warranty obligations of Seller toward the Customer are never greater or for longer duration than the warranty obligations of those third parties toward Seller. Seller shall be entitled to invoke any restriction of the warranty provided by such third party to the Seller vis-a-vis the Customer.
- The Customer shall enable Seller at its first request to carry out its warranty obligations and activities.
- Liability and indemnification
- Seller’s liability in connection with any defect in any Product is limited to the fulfilment of the warranty described in the previous article 10 of these General Terms.
- Seller ‘s liability for loss of profits, trading losses, consequential or indirect damages, damage to property and for costs made by the Customer to identify or localise a defect in a Product is at all times excluded.
- Seller is never obliged to pay substitute or additional damages (vervangende of aanvullende schadevergoeding) except if and insofar as the damage suffered was directly caused by intent or gross negligence of Seller or its own employees.
- In all cases in which Seller is liable for damages, such liability will never exceed, at Seller’s option, either 20% the invoice value of the Product whereby or in connection with which the damage was caused, or, if the damage is covered by an insurance policy of the Seller, the amount that is actually paid out by the insurer with respect thereto.
- In all cases in which Seller owes a fine, its obligation to pay damages is limited to payment of the amount of the fine, without prejudice to article 8 of these General Terms.
- Any claim on Seller, except those explicitly recognised by Seller in writing, shall lapse after a period of 12 months from the time the claim arose.
- Conditions which limit, exclude or determine liability of Seller’s suppliers or subcontractors and which are directly or indirectly connected to Products sold and delivered by the Seller to a Customer, can also be invoked by the Seller vis-à-vis the Customer.
- Seller’s employees, or independent contractors engaged by Seller in the context of implementation and/or execution of the Agreement, can, toward the Customer, invoke all means of defence afforded by the Agreement and these General Terms as if they themselves were a party thereto.
- The Customer will hold harmless, defend and indemnify Seller, its employees and independent contractors engaged by Seller in the context of implementation and/or execution of the Agreement, for each claim by third parties in connection with the implementation and/execution of the Agreement by Seller.
- Payment and security
- Unless the Agreement explicitly provides otherwise, invoices of the Seller shall be paid by the Customer within 30 days after the invoice date. Seller is however at all times entitled to claim full or partial payment in advance, and/or to otherwise obtain security for payment.
- The Customer waives to the fullest extent permitted by the applicable law any right to set off amounts charged by and between Parties. Warranty claims do not suspend the payment obligations of the Customer.
- If a Customer does not pay any amount it owes to a Seller, it is in default by force of law and without notice being required. As soon as a Customer is in default with respect to any payment, all Seller’s remaining claims on the Customer shall immediately become due and payable and the Customer shall be in default with respect to those claims by force of law and without notice being required. As from the day on which a Customer is in default, he owes to Seller an interest of 15% per month or part of a month during which the default continues.
- Seller does not accept checks as a means of payment, unless such acceptance has been confirmed in writing by Seller. In case of payment by a check, an additional fee of EUR 20 will be charged to the Customer for expenses incurred in the context of the cashing of the check.
- Payment of an invoice of the Seller by a Customer shall be made to the bank account and in accordance with the payment details as included on the respective invoice or as may be separately notified by the Seller to the Customer from time to time.
- If the Customer does not fulfil one or more of its obligations, does not fulfil them on time or adequately, is declared bankrupt, requests (temporary) moratorium, or commences with the liquidation of its business, as well as when its assets are attached in whole or in part, Seller has the right to suspend the implementation and/or execution of the Agreement or to rescind the Agreement in whole or in part, each by written declaration, without prior notice of default, at the Seller’s option and always reserving any rights to which the Seller is entitled with respect to compensation for costs, damages and interest.
- The Customer is only authorised to partially or entirely rescind the Agreement in the cases referred to in articles 4 and 9.4 of these General Terms, and then only after payment to Seller of all amounts owed to it at that time, whether or not due.
- If the Agreement terminates pursuant to article 1 of these General Terms before the agreed Products are finished or delivered, Seller is entitled to the full agreed price, decreased by Seller’s savings arising directly from the termination. If the Agreement terminates pursuant to article 13.2 of these General Terms, Seller is entitled to a part of the agreed price proportionate to the activities already performed by Seller in relation to the agreed Products and the activities of Seller required therefor, decreased by Seller’s savings arising directly from the termination. Costs already incurred by Seller or investments already made by Seller at the time the Agreement terminates must always be fully reimbursed by the Customer to the Seller.
- Applicable law and dispute settlement
- Unless the Agreement explicitly provides otherwise, the Agreement and these General Terms shall exclusively be subject to Dutch law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
- Unless the Agreement explicitly provides otherwise, all disputes between Parties shall be heard exclusively by the competent court of Amsterdam, the Netherlands, unless Seller prefers another competent forum or arbitration.