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Conditions

Article 1           General

1.These conditions apply to every offer, quotation,  agreement and delivery between Souvenirindustrie Buis B.V., hereinafter referred to as "User", and a “Counterparty”, as long as the parties have not expressly and in writing decided otherwise. In some articles, a distinction is made between the business and private customer.

2.These conditions also apply to agreements with User, if  third parties are used for the execution of services.

3.These general conditions also apply on the employees of User and its management.

4.The applicability of any other conditions of the Counterparty is explicitly rejected.

5.If one or more provisions of these terms and conditions are at any time completely or partially invalid or void, the remains  in these general terms and conditions will still apply. User and the Counterparty will enter into negotiations to develop new rules to replace the invalid provisions, these should comply to the purpose and intent of the original provisions as much as possible.

6.If uncertainty exists regarding the interpretation of any provision of these terms and conditions, then the explanation must be found in “the spirit (the purpose and intent)” of these provisions.

7.If there is a conflict between parties that doesn’t occur in these terms and conditions, then this situation should be assessed in “the spirit” of these terms and conditions.

8.If User does not require strict compliance with these conditions at all times, this doesn’t mean that its provisions do not apply, or that User in any degree would lose the right to otherwise strict comply with the provisions of these terms and conditions.

 

Article 2           Quotations and offers

1.All quotes and offers of User are without obligation, unless the offer has a term for acceptance. A quote or offer is void if the product to which the quote or offer relates, is no longer available in the meantime.

2.User is not obligated to quotes or offers if the other party can reasonably understand that the quotes or offers, or any part thereof, contains an obvious mistake, misprint or writing error.

3.Prices in a quote or offer are excluding VAT for business customers and include VAT for private consumers according to the Dutch tax laws. Mentioned prices are excluding other (government) charges, travel, shipping and handling charges, unless otherwise stated.

4.User is not bound to the agreement if the acceptance differs from the quote or offer. The agreement is not in accordance with said deviating acceptance, unless User indicates otherwise.

5.A compound quotation shall not obligate User to execute part of the assignment against a corresponding part of the price. Quotes and offers will not automatically apply to future orders.

 

Article 3           Contract duration; Delivery terms; Price increase; Execution and modification agreement

  1. The agreement between the User and the Counterparty is for an limited period of 18 months, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
  2. A period agreed or specified for the completion of certain work or for the supply of certain cases, is never a deadline. When a term is exceeded, the Counterparty should send User a written notice of default. This notice must include a reasonable period to fulfill the agreement.
  3. If User requires information from the other party for the performance of the agreement, the execution time will not start earlier than after the Counterparty provided this information accurate and complete to the User.
  4. Delivery is "free home" for domestic orders over € 500. – excluding V.A.T. And "ex works” Aalsmeer for other (export) shipments unless otherwise indicated. The value of the export shipments will be increased with cost for transport, documents and packing.
  5. The Counterparty is obligated to take the items at the time that they are available. If the Counterparty refuses or fails to provide information or instructions necessary for the delivery, User is entitled to store the goods at the expense and risk of the Counterparty.
  6. User has the right to have certain work done by third parties.
  7. If Counterparty agreed a call period, all reasonable costs, caused by a late acceptance by the Counterparty shall be charged to Counterparty.
  8. User has the right to fulfill the agreement in several phases and bill performed phases separately.
  9. If the agreement is executed in phases, the User has the right to stop execution of the parts belonging to a following stage until the other party accepts the preceding stage in writing or by payment.

10. If during the execution of the agreement it seems that for a proper implementation it is necessary to amend or supplement, then parties will timely go into counsel to amend the agreement. If the nature, scope or content of the contract, whether or not to request of the Counterparty or third party (competent authorities, et cetera), is amended and the agreement would be qualitatively and / or quantitatively changed, this may have consequences for what was originally agreed. The initially agreed amount may be increased or decreased. User shall as much as possible quote this timely. By amending the agreement the initial period of execution may change. The Counterparty accepts the possibility of amending the agreement, including the change in price and time of execution.

11. If the agreement is amended, including supplements, User is entitled to execute after it has been agreed by the authorized person and the Counterparty has agreed the specified price and other conditions, including the period to fulfill the agreement. Failure or delay of immediate execution of the amended agreement is no default of User and is no reason for the Counterparty to terminate the agreement.

12. Without being in default, the User can refuse a request to amend the contract, if the qualitative and / or quantitative terms have negative outcome, for example to work executed or items to be delivered.

13. If the Counterparty is in default in the proper fulfillment of its obligations to User, then the Counterparty will be liable for all direct and indirect damages (including costs) on the part of the User.

14. If the User agrees a certain price, then User shall nevertheless be entitled to increase the price, under the following circumstances:

-  If the price increase is the result of an amendment to the agreement;

-  If the price increase is the result of a change in jurisdiction of User or a mandatory law;

-  In other cases, it being understood that the Counterparty who is not acting in the exercise of a profession or business, is entitled to end the contract by a written statement if the increase exceeds 10% and occurs within three months after the conclusion of the agreement, unless User is still willing to perform the agreement on the basis of the originally agreed price, or if it is agreed that the delivery will take place longer than three months after the sale.

 

Article 4           Suspension and termination of the agreement

1.User is able to suspend or terminate the agreement with immediate effect if:

-  the Counterparty doesn’t fully or timely comply with the agreed obligations;

-  after conclusion of the contract, User learns of circumstances giving good ground to fear that the Counterparty will not fulfill obligations;

-  the Counterparty is requested to provide a deposit or security for the fulfillment of his obligations and this security is not provided or insufficient;

-  it is no longer possible for User to fulfill the agreed terms because of delay on the part of the Counterparty.

-  if circumstances arise of such a nature that fulfillment of the contract is impossible or unaltered maintenance of the agreement cannot reasonably be demanded from User.

2.If the dissolution is attributable to the Counterparty, User is entitled to compensation for damages, including the direct and indirect costs.

3.If the agreement is dissolved, the User's claims against the Counterparty are immediately due and payable. If User suspends fulfillment of his obligations, he shall retain his rights under the law and the agreement.

4.If User, on the grounds mentioned in this article, decides to suspense or dissolve the agreement, it is for that reason in no way liable for damages and costs incurred in any way or compensation, while the Counterparty is required to compensate by default.

5.If the agreement is terminated by User, the User will in consultation with the Counterparty arrange for transfer of work to third parties, unless the termination is accountable to the Counterparty. Unless the termination is attributable to the User, the costs for transfer is charged to the Counterparty. User will inform Counterparty as much as possible in advance of these costs. The Counterparty shall pay such costs within the term specified by the User, unless User indicates otherwise.

6.In case of liquidation, suspension of payment, bankruptcy, a debt or other circumstance that the Counterparty’s equity is no longer freely available, the User is free to terminate the agreement with immediate effect or to cancel the order or agreement, without any obligation to pay any damages or compensation. The User's claims against the Counterparty in that case are immediately due.

7.If the Counterparty cancels an order fully or partially, then the appropriate order or ready made things, plus the potential delivery costs and cost for the reserved time may be charged to the Counterparty.

 

Article 5           Force majeure

1.User is not obligated to perform any obligation to the Counterparty if he is hindered due to a circumstance that is not due to negligence, and not under the law, a legal act or generally accepted for its account.

2.Force majeure is in these terms and conditions, in addition to the provisions of the law and jurisprudence, all external causes, foreseen or unforeseen, which User can not influence but which prevents User to meet his obligations. Strikes in the company of User or third parties included. User also has the right to invoke force majeure if the circumstance rendering (further) fulfillment of the contract occurs after the User had to honor its commitment.

3.User may, during the period of force majeure suspend the obligations under the agreement. If this period lasts longer than two months, either party is entitled to terminate the agreement without any obligation to pay damages to the other party.

4.If the User at the time of the occurrence of force majeure its obligations under the agreement has been partially fulfilled or will fulfill, and the part still to fulfill has an independent value, User is entitled to bill the already performed separate. The Counterparty is obligated to pay this invoice as if it were a separate agreement.

 

Article 6           Payment and collection costs

1.Payment must be made in advance or cash on delivery, at terms of the User in the currency of the invoice, without deduction unless otherwise specified by the User. User is entitled to periodic billing.

2.If the Counterparty defaults in the timely payment of an invoice, then the Counterparty is legally in default. The Counterparty shall owe an interest. In the case of a consumer's interest at the statutory rate. In other cases, the Counterparty should pay an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest is due. The interest on the amount due shall be calculated from the time that the other party is in default until the moment of payment of the full amount.

3.User has the right to stretch payments made by Counterparty in the first place to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal and accrued interest.

4.User can, without being in default, refuse an offer for payment, if the Counterparty designates a different order for the allocation of the payment. User can refuse complete repayment of principal, if the accrued interest and collection costs are not fulfilled.

5.Objections to the amount of a bill will not suspend the payment obligation. The Counterparty that does not appeal to section 6.5.3 (Articles 231 to 247 of Book 6 BW – Dutch law) is not entitled to suspend the payment of an invoice for any other reason.

6.If the Counterparty is in default in the (timely)  fulfillment of his obligations, all reasonable costs incurred in obtaining payment will be charged on the Counterparty. Any judicial and execution costs will also be recovered from the Counterparty. The collection costs will also include interest.

 

Article 7           Reservation of title

1.All by User delivered goods remain the property of User until all obligations under the agreement with User are duly complied.

2.By User supplied items, made pursuant to paragraph 1, may not be resold and must never be used as payment. The Counterparty is not entitled to under the title falling to pledge or otherwise encumber.

3.The Counterparty is always to do what was reasonably expected of him to secure the property of User.

4.If third parties seize goods delivered under reservation of title, then Counterparty  is obligated to notify User immediately.

5.The Counterparty agrees to insure the property delivered and keep insured against fire, explosion and water damage and theft and show the policy of this insurance on first request to User for inspection. Any payment received from the insurance is entitled to User. Insofar as necessary, the Counterparty will co-operate in advance towards User with all that in that context is necessary or desirable.

6.In case User is indicated in this Article to exercise property rights, the Counterparty will give unconditional and irrevocable permission to User and third parties designated by User to all those places where the properties of User is located and take those items.

 

Article 8      Guarantees, research and complaints

1.The by User delivered shall meet the usual requirements and standards that at the time of delivery can be made reasonably and in which they normally are used in the Netherlands. The guarantee referred to in this Article shall apply to matters that are intended for use within the Netherlands. When outside the Netherlands, the Counterparty is to verify whether the use is suitable for use there and whether they satisfy the local conditions. User can set other guarantees and other conditions in respect of the goods to be supplied or work to be performed.

2.The guarantee shall be for a period of 8 days after delivery, unless the nature of the provided or the parties have agreed otherwise. If the User provided a guarantee at an item which was produced by a third party, then the guarantee is limited to those provided by the manufacturer, unless otherwise stated. After the warranty period, all costs for repair or replacement, including administration, shipping costs and drive, will be charged to the Counterparty.

3.Any form of warranty is void if a defect is caused by or resulting from inappropriate use or use after the expiration date, improper storage or maintenance by the Counterparty and / or third parties when, without written permission from User, the Counterparty or parties made changes or tried to make changes that were processed or modified other than as prescribed. The Counterparty is not entitled to warranty if the defect is caused by or arising from circumstances out of User's control, including weather conditions (such as but not limited to, extreme temperatures or rainfall) et cetera.

4.The Counterparty is obligated to investigate immediately the moment that items are made available and the relevant activities are performed. The Counterparty is to examine if the quality and / or quantity of the goods delivered correspond to what was agreed and meets the agreed requirements. Any defects should be reported within eight days after discovery in writing to User (for private consumers, this is a period of two months). The report should have a detailed description of the defect, so that User is able to respond adequately. The Counterparty must give User the opportunity to investigate a complaint.

5.If the Counterparty timely complains, it will not suspend its payment obligation. The Counterparty remains in that case also obligated to accept and pay for the otherwise ordered, unless it has no independent value.

6.If a defect is reported too late, then the Counterparty is not entitled to repair, replacement or compensation, unless the nature of the case or other circumstances cause a longer-term.

7.For deliveries up to € 1000.- per delivery, the Counterparty has an own risk of 2% regarding breakage or damage of the goods value.

8.If it is determined that an item is weak and that timely is reported, then User, within a reasonable time after the return of receipt or, if return is not reasonably possible, following notification of the defect by the Counterparty, by choice of User, replace or repair the item or give a replacement fee to the Counterparty. In case of replacement, Counterparty is obligated to return the replaced matter to User, unless User indicates otherwise.

9.If a complaint is unfounded, the costs incurred, including research costs, on the part of User, will be for the account of the Counterparty.

10. Alterations to samples provided are reserved by User.

11. User reserves the right to change the quantity to complete packaging units.

12. User can’t be held responsible for any production mistake, this includes material used. Items may not be dishwasher proof.

 

Article 9  Liability

1.If User is liable, this liability is limited to what is in this provision.

2.User is not liable for damages of whatever nature, created because User is informed incorrect and / or was given incomplete date by or on behalf of the Counterparty.

3.User is solely liable for direct damage.

4.Direct damage is only:

- the reasonable costs incurred to determine the cause and extent of damage, where the establishment relates to damage in the sense of these conditions;

- any reasonable costs incurred to answer the poor performance of the User agreement, so far these can be attributed to User;

- reasonable costs incurred to prevent or limit damage, if the Counterparty can demonstrate that these expenses resulted in reduce of direct damage as referred to in these terms and conditions.

5.User is never liable for indirect damage, including consequential, lost profits, lost savings and damage due to business or other stagnation. In the case of private consumer extends this restriction does not go beyond that which is permitted under Article 7:24 paragraph 2 BW (Dutch law).

6.If User is liable for any damage, then the liability shall be limited to the invoice value of the order, or to that part of the order to which the liability relates.

7.User's liability is always limited to the amount paid by his insurer, if appropriate.

8.The limitations of liability in this article do not apply if the damage is due to intent or gross negligence of User or his subordinates.

 

Article 10         Expiry period

1.Despite of the statutory limitation periods, the limitation period for all claims against the User and to User by execution of a third party, will be one year.

2.The provision of paragraph 1 shall not apply to legal claims that are based on facts that would justify the assertion that the case delivered doesn’t match the  agreement. Such claims and defenses lapse two years after the Counterparty has informed User of such non-conformity.

 

Article 11         Transfer of Risk

1.The risk of loss or damage is transferred to the Counterparty at the moment items are under control of the Counterparty.

 

Article 12         Indemnity

1.The Counterparty shall indemnify the User for any claims by third parties in connection with the execution of the agreement and whose cause is other than attributable to User.

2.If a third party should address to User, then the Counterparty should assist User both outside and in law immediately and do for User what in that case can be expected. Should the Counterparty fail to take adequate measures, then User, without notice, entitled themselves to do so. All costs and damages on the part of Users and third parties, are for the account and risk of the Counterparty.

 

Article 13         Intellectual property

1.User reserves the rights and powers for which he is entitled under the Copyright, Designs act and other intellectual property laws and regulations. User has the right by the execution of an agreement to use increased knowledge at his side for other purposes, provided that no strictly confidential information of the Counterparty is communicated to third parties.

 

Article 14         Applicable law and disputes

1.All legal relationships to which User is a party, only Dutch law applies even if a contract fully or partly was executed abroad or if the legal relationship with the party concerned is domiciled abroad. The applicability of the Vienna Sales Convention is excluded.

2.Parties will first appeal to the courts after they turn to the utmost to settle a dispute by mutual agreement.

 

Article 15         Location and change of conditions

1.These conditions are filed with the Chamber of Commerce in Amsterdam.

2.Applicable is the last registered version or the version valid at the time of the creation of the legal relationship with User.

3.The most recent conditions can be found on www.holland-souvenir.com or obtain by contact with:

 

Souvenirindustrie Buis B.V. 

Machineweg 222, 1432 EV, Aalsmeer, Holland.

Phone: +31 (0)297-381122

E-mail: info@holland-souvenir.com

Chamber of Commerce Amsterdam: 33.204.876

VAT number: 807638377B01