General terms and Conditions – Vivant
General delivery and payment conditions of Vivant Decorations B.V., as filed with the Chamber of Commerce of Limburg under Commercial Register number 52704335.
the contracted party: Vivant Decorations B.V.
commercial agent: sole traders or third parties who enter into agreements on behalf of and at the expense of the contracted party;
subordinates: employees of the contracted party who are not commercial agents;
the customer: the party wishing to enter into an agreement with Vivant Decorations B.V., its representative(s), authorised party/parties, legal successor(s) and heir(s).
call-off order: orders with an explicit expiry date by which they must been taken delivery of. The usual duration will apply:
Article 2. Applicability
- These terms and conditions will apply and form part of all offers and proposals made by, all assignments granted to and all agreements concluded by the contracted party, referred to in any way whatsoever, as well as the implementation thereof. The contracted party will carry out its work subject to the applicability of these terms and conditions exclusively. Unless agreed otherwise in writing, the contracted party will not agree to the applicability of the terms and conditions of the customer in the event that the customer refers thereto or sends these to the contracted party.
- Deviations to these terms and conditions will only apply if these have been confirmed in writing by the board of the contracted party.
Article 3. Offers, proposals and order confirmation
- All offers and proposals are free of engagement unless they contain a term for acceptance. If an offer contains an offer which is free of engagement and the offer is accepted, the contracted party will have the right to revoke the offer within five working days after having received said acceptance. Offers without an explicit term for acceptance will apply for thirty days as from the date of the offer, but will be wholly free of engagement.
- Immediately after reaching an agreement on the sale and delivery of its products and/or services, the contracted party will send the customer an order confirmation stating the most important elements of the agreement. Notwithstanding receipt of swift notice to the contrary from the customer, the order confirmation will serve as evidence of the agreement reached between the parties.
- In the event of assignments or orders placed orally, by telefax or by internet-email, the agreement will only be realised upon its confirmation in writing by the contracted party within 8 days of its receipt of the assignment or order. An agreement will in any case be deemed to have been reached if the assignment or order is actually implemented and the customer does not immediately protest such implementation.
- This stipulation will also apply in the event of assignments granted via commercial agents or other intermediaries Confirmation given and/or commitments made by commercial agents and subordinates will not be binding for the customer.
- Assignments or orders placed by telephone and telefax or by internet-email will be carried out in conformity with the notes made by the contracted party and its interpretation thereof. The customer is naturally authorised to provide evidence to the contrary.
- All price lists, cost specifications, manuals and other information relating to products and services of the contracted party provided together with an offer or proposal will only be binding for the contracted party if such is explicitly confirmed by the contracted party in the order confirmation in writing. No rights whatsoever will be able to be derived vis-à-vis the contracted party in any other cases. This means that if the contracted party sends market parties or the customer certain items free of engagement, no rights will be able to derived herefrom vis-à-vis the contracted party by those market parties or that customer. Cost specifications provided must be as accurate as possible. Obvious errors in writing and/or mistakes can be corrected by the contracted party.
- No rights whatsoever can be derived vis-à-vis the contracted party from the content of manuals of the contracted party. Colours and colour schemes, measurements and/or descriptions mentioned therein will not be binding for the contracted party.
Article 4. Prices
- All prices will be quoted in and will be deemed to be quoted in Euros (legal Dutch tender).
- All prices stated will be exclusive of value added tax and will exclude those expenses which pursuant to the agreement between the parties are for the expense of the customer. The prices will be based on the fees, wages, import duty, tax and other price-determining factors applicable at the time that the agreement is/was entered into.
- In the event that one or more of these factors changes/change in an agreement with a duration of more than three months, the contracted party will be entitled to adjust the prices stated or agreed with retroactive effect up to the time of the change. At the request of the customer, any changes will be shown. The duration of the agreement will be understood to mean the time between the date on which the assignment is received from the customer and the date on which the contracted party commences the work concerned or delivers the items sold. Such a price adjustment will not give the customer the right to terminate the agreement.
Article 5. Deliveries, completion and transfer, risk and cancellation
- The contracted party will retain the right to demand that the customer stipulate security for the observance of its payment obligations before commencing the implementation of the work or the delivery of the items sold
- If in this case the security required by the contracted party has not been provided within the term set, the contracted party will be entitled to extrajudicially terminate the part of the agreement that has not yet been executed, in which case the contracted party will owe the customer a cancellation fee as referred to in Article 5.11.
- The products will be at the expense and risk of the customer as from the time at which the products leave the company of the contracted party. The transport will be at the expense and risk of the customer. The contracted party will not at any time have the transportation of the products insured
- Unless explicitly agreed otherwise in writing, the place of business of the contracted party will be the place of delivery.
- If the goods have not been taken receipt of by the customer upon the expiry of the delivery term, the goods will be assumed to be at the disposal of the customer and stored for his expense and risk.
- If upon their delivery at the destination neither the customer nor a representative of the customer are available to take receipt of the goods, the contracted party will be entitled to retain possession of the goods. The delivery is deemed to have been made. The customer will be obliged to pay compensation for any extra costs incurred by the contracted party in connection with storage and other acts.
- The customer will be obliged to inspect the goods upon delivery. If, when the goods are taken delivery of, it appears that the amounts delivered are 10% more or less than the amounts ordered, the customer will still be obliged to accept the delivery and to take receipt of the goods. The customer will be obliged to notify the contracted party hereof without delay, after which the sum due will be charged or credited.
- The contracted party will be entitled to deliver the goods by partial deliveries, and to invoice each partial delivery accordingly. The contracted party will be entitled to suspend these partial deliveries if previous partial deliveries have not yet been paid
- The delivery and implementation terms stipulated by the contracted party must not be regarded as strict deadlines unless such has been agreed in writing. In the event of late delivery, the contracted party must therefore be declared to be in default in writing.
- If the delivery term is exceeded, the contracted party will not be obliged to pay any compensation, neither will the customer be entitled to terminate the agreement.
- Orders placed or assignments given by the customer will only be able to be cancelled within 10 days as of the realisation of the agreement and such cancellation must take place in writing. In the event of cancellation, the customer will be obliged to pay compensation amounting to the prices stipulated for materials purchased or used in connection with the implementation of the assignment, increased by 40% of the total sales price as compensation for loss of profits.
Article 6. Payment
- An invoice will also be drawn up if the customer fails to take delivery of the products on the date agreed.
- Payment must take place within 14 days as of the date of invoice, unless agreed otherwise in writing. No setoff will be permitted.
- If payment does not take place within 14 days as of the date of invoice or the agreed term of payment has expired, as from the date of the commencement of the default, the customer will owe default interest of 1.5% per calendar month, charged over the purchase price of the part not yet paid. All extrajudicial costs to be incurred by us will also be at the expense of the buyer/customer. These extrajudicial collection costs will be set at the collection rates employed at that time by the District Courts in the Netherlands.
- Payments made by the customer will always serve to settle all interest and costs due and subsequently those invoices that have been outstanding for the longest time, even if the customer states that the payment relates to a later invoice.
- As from the date on which the customer is in default, all claims of the contracted party vis-à-vis the customer will be immediately due and payable.
Article 7. Complaints
1. Complaints will only be handled if received by the contracted party by registered letter within 8 days as of the time at which the defect or error is/was discovered and if they do not concern work carried out by third parties or items supplied by third parties. The handling of a complaint by the contracted party will not be regarded as acceptance of liability in any form whatsoever.
2. The customer will be obliged to inspect items delivered for defects and to ensure that they conform to the specifications stated immediately after delivery. Any inadequacies and/or deviations in size and colour within the range of usual tolerances will not constitute a basis for a complaint.
3. If the complaints of the customer are deemed to be well-founded, the contracted party will undertake exclusively either to perform as agreed or to refund the purchase price. The customer will not be authorised to set off sums paid against invoices which are still outstanding.
Article 8. Liability and guarantees
- The customer is not liable for damage caused by: the inexpert use of the items delivered or use thereof for another purpose than that suitable according to objective standards; the negligent conduct of the other party and/or its personnel and/or other persons called in by the other party; the infringement of patents, licenses and/or other intellectual property rights of third parties as a result of information provided by or on behalf of the customer, such as drawings, models, designs, trademarks etc. The customer will indemnify the contracted party with regard hereto.
- The liability of the contracted party will not exceed the payment made on the strength of its product liability insurance policy or loss of profits insurance policy in such a case.
- The liability of the contracted party to pay compensation for damage or loss will not however exceed a sum higher than the sum of the invoice for the damaged or defect item. Payment of the damage hereby referred to by the contracted party and/or its insurer will be regarded as the sole and the full compensation due.
- Other parties than the customer will not at any time be entitled to claim compensation for damage vis-à-vis the contracted party. At no time will the contracted party be liable for consequential loss, indirect and direct trading loss, business interruption loss, loss of orders and sales of the customer, loss of profits or processing costs.
- Guarantees will not be given by the contracted party, unless explicitly confirmed in writing.
Article 9. Call-off orders
- In the event of a call-off order whereby no term has been agreed within which the call must take place, the call-off period will be the last day of the delivery term and actual delivery will take place within 15 working days thereinafter at the maximum.
- If a call-off period has been agreed and the customer has failed to put out a call within that term, the contracted party will send out a written demand letter with regard hereto. The demand letter will give an additional call-off period of 8 working days, commencing on the date of the demand letter concerned
- If still no call is made within the additional call-off period, the contracted party will have the choice between delivering the order or storing the items ordered at the expense and risk of the customer.
Article 10. Intellectual Property
- The customer explicitly acknowledges the fact that all intellectual property rights to information given, illustrations, announcements of other statements concerning the products are vested in the contracted party.
- Intellectual property rights will be understood to refer to patent rights, copyrights, trademark rights, design rights, model rights and/or other (intellectual property) rights, including technical and/or commercial know-how, methods and drafts, whether patentable or otherwise.
- The customer is forbidden from making use of the intellectual property rights described in this article such as the right of reproduction, including making changes thereto, without prior written permission from the contracted party.
- In the event of the infringement of that stipulated in Article 9, the customer will owe a fine of
€ 5,000 for each infringement and for each day that such an infringement continues, including a part of that day, without prejudicing any other rights enforceable by the contracted party.
Article 11. Force majeure
- Force majeure will be understood to refer to all circumstances that the contracted party has not within reason been able to avoid or the consequences of which the contracted party has not within reason been able to prevent, including: strikes, fire, work interruptions, machine breakdowns, shortages of raw materials, bankruptcy of suppliers, delivery stagnation and transport problems.
- In the event of force majeure, the contracted party will be entitled either to maintain the agreement subject to suspension of the obligations of the contracted party for the period of the force majeure, or to terminate the agreement due to unforeseen circumstances without any obligation to pay the customer compensation. The customer can order the contracted party in writing to make its choice known with regard hereto within 10 days.
Article 12. Retention of title
- All items supplied by the contracted party will remain its property up to the time of full payment of all that owed by the customer to the contracted party on any basis whatsoever, including future demands for payment vis-à-vis the customer and the obligation of the customer to pay interest and costs in the event of belatedly paid invoice sums.
- Such retention of title will continue to apply to all items supplied by the contracted party as long as the contracted party still has any immediately due and payable claims vis-à-vis the customer. As long as the ownership of the items supplied has not yet passed to the customer, the customer will not be permitted to assemble, build in, add to, use, consume, sell or pledge the items or grant a third party/third parties any other right thereto.
- In the event of late payment of a due and payable sum, without giving a notice of default and without judicial intervention, the contracted party will be entitled to fully or partially terminate the agreement and to reclaim the items in which a retention of title of the contracted party is vested as its property, without prejudicing the right of the contracted party to compensation.
- Insofar as no retention of title as referred to in the last paragraph is vested in the items supplied by the contracted party, it will transfer these items to the customer while simultaneously establishing an undisclosed pledge for the contracted party as security for the full payment of all that owed or to be owed by the customer to the contracted party.
- If the customer has not yet paid the price agreed and the goods concerned have been sold and delivered to third parties, the customer will grant the contracted party now for then irrevocable authorisation and will give the contracted party all information required to establish a right of pledge on the claim vis-à-vis that third party and if so requested, the contracted party will notify the customer or the afore-mentioned third party of the nature and the amount of the claim for which the pledged property serves as security.
Article 13. Void provisions
- If and insofar as one or more of the provisions in these general delivery and payment conditions appears to be void or voidable, this will not affect the validity of the other provisions.
- In consultation between the parties, the void or voidable provision will be replaced by a provision, the purport and meaning of which corresponds to the previous provision as far as is possible.
Article 14. Disputes
- All offers, order confirmations and agreements of the contracted party are subject to Dutch law. The applicability of the Vienna Sales Convention is excluded.
- Disputes between the customer and the contracted party will be brought before the competent court in this matter in the District of Maastricht exclusively.
- The actual costs in connection with legal proceedings will be borne by the party wrongfully taking the contracted party to court.