GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF CUSTOM COMPANY, WITH REGISTERED OFFICE IN (3065GG ) ETTEN-LEUR AT BREDASEWEG 185 . Registered under number 72173785 Chamber of Commerce in Rotterdam
Article 1 Definition. In these general terms and conditions, the following definitions apply:
- Customer: the person who orders Products from the Supplier and/or with whom the Supplier is discussing or negotiating the conclusion of an Agreement;
- Defect: Any deviation of the Products from the Specification and any other failure of the Products to function properly;
- Delivery term: the term specified in the Agreement within which the Products must be delivered;
- Supplier: Custom Company located at Bredaseweg 185 in Etten-Leur
- Order: Any order from the Buyer to the Supplier for the delivery of Products, in whatever form;
- Agreement: every agreement that is concluded between the Supplier and the Customer, every amendment or addition thereto, as well as all (legal) acts in preparation for and/or for the implementation of that agreement;
- Products: All goods produced and/or delivered by or for the account of the Supplier for the execution of an Order or Agreement as well as – whether or not associated therewith – services to be provided by the Supplier, including advice and creative expressions;
- Specification: The description of Products ordered by the Customer which is stated or referred to in the Order or the Agreement.
Article 2 Applicability.
Paragraph 1: Unless otherwise agreed in writing, these general terms and conditions apply to all offers and quotations from the Supplier and to every Agreement between the Supplier and the Customer.
Paragraph 2: The applicability of any general (purchase) conditions applied by the Buyer is expressly rejected by the Supplier, unless the applicability thereof has been expressly accepted by the Supplier in writing.
Article 3 Offers
Paragraph 1: All offers in whatever form are without obligation for the Supplier and must be regarded as a whole. If an offer contains a term for acceptance, this only means that the offer has in any case lapsed after this term.
Paragraph 2: All images, catalogues, drawings and further information, such as measurements, weights and quantities, provided with the offer are as accurate as possible. These statements are only binding insofar as this is expressly confirmed.
Paragraph 3: All quotations and offers are based on the performance of the Agreement under normal circumstances and during normal working hours.
Paragraph 4: Agreements are only concluded if and insofar as they have been confirmed in writing by the Supplier or after the Supplier has made a start with the implementation.
Paragraph 5: If, due to circumstances, including the nature, size or urgency of the Order, no order confirmation has been sent, the invoice will be regarded as order confirmation.
Paragraph 6: Each Agreement is entered into by the Supplier under the suspensive condition that the Customer – at the sole discretion of the Supplier – proves to be sufficiently creditworthy for the financial performance thereof.
Paragraph 7: All documents, models, samples or examples provided relating to offers made by the Supplier and/or the Agreement are and remain the property of the Supplier and may not be provided to third parties, made available for inspection, multiplied or counterfeit in any way. The Buyer is obliged to return these to the Supplier, carriage paid, within fourteen days of a request made by the Supplier, undamaged and, if applicable, in the original packaging.
Article 4 Prices
Paragraph 1: The price or prices stated in the offer are in Euros, exclusive of VAT and/or other levies.
Paragraph 2: The price or prices stated in the offer are, unless otherwise agreed, based on the price-determining factors applicable to the Supplier at the time of this offer, such as wages, cost prices of raw materials or materials and exchange rates. Price increases as a result of a change in one of these price-determining factors after the offer may be passed on by the Supplier to the Customer, even if the Agreement has already been concluded.
Paragraph 3: If the application of the previous paragraph should lead to a price increase of 10% or more within a period of 3 months after entering into the Agreement, the Customer is entitled to cancel the Agreement within 7 working days after being informed of the price increase. to dissolve the agreement by means of a registered letter, without being entitled to any compensation.
Article 5 Delivery of processed Products.
Paragraph 1: In the event that the Supplier receives an order to supply Products specially processed (or composite) for the benefit of the Buyer, the Buyer is obliged to supply material suitable for the process of processing in sufficient quantities. As long as the Buyer has not fulfilled this obligation, the Supplier is entitled to suspend its obligations under the Agreement.
Paragraph 2: The Supplier is only obliged to send a proof, model, sample or example to the Customer for approval in advance if the Customer has stipulated this in writing when entering into the Agreement. In that case, the Supplier undertakes to submit a proof, model, sample or example to the Customer no later than two weeks after entering into the Agreement and after receipt of the materials to be processed, which is deemed to have been approved if this has not been done in writing within five working days. has been responded to.
Paragraph 3: All costs of the proof, model, sample or example are charged separately and are not included in agreed prices unless expressly agreed otherwise.
Paragraph 4: Concerning MP3 players/MP4 players/USB storage; The unit distribution of the capacity of the storage of data, in the case of USB sticks (or hard disks), in most cases does not correspond to the unit division of, for example, weight (miligrams, grams, kilograms).
The order of data storage is known from smallest to largest: byte(B), kilobyte(kB), megabyte(MB), gigabyte(GB), terrabyte(TB), etc. The magnification stage can be used in two ways, viz. of 1000 kB = 1 MB or 1024 kB = 1 MB (officially 1 MiB = Mebibyte). ?The first way is often used by manufacturers of USB storage or hard drives. However, the second way is used by operating systems because the binary system has been devised for this (instead of the decimal number system). ?This deviation can lead to the following misunderstanding: A 2GB USB stick (2,000 megabytes / 2,000,000 kilobytes / 2,000,000,000 bytes) actually has a capacity of 1907 MB. Suppose someone wants to save a file larger than 1907 MB (officially MiB, how an operating system like Windows displays it) then that will not work. The greater the capacity of the storage medium, the greater the
Article 6 Advice on activities and product development.
Paragraph 1: The supplier can, if requested, act in an advisory capacity. The Supplier is entitled to charge this separately to the Buyer, regardless of whether the advice relates to Products produced and/or delivered by or for the account of the Supplier pursuant to the Agreement.
Paragraph 2: In the case of product development, advice for promotional products to be applied, advice with regard to creative concepts, quotations for extensive projects with processed or unprocessed products, national or international market research into specific products or product applications for products not specifically described, the Supplier is the provisions of paragraph 1 of this article apply in full.
Article 7 Engagement of third parties.
The Supplier is entitled to engage third parties in the performance of the Agreement. It is also entitled to transfer rights and obligations arising from the Agreement to third parties.
Article 8 Deliveries and Delivery Times. Force of the majority.
Paragraph 1: Delivery times are approximate and can never be regarded as strict deadlines, unless expressly agreed otherwise. Delivery terms only commence as soon as the Agreement has been concluded in accordance with Article 3, all information required for the execution of the Agreement has been provided and payment by the Buyer of the purchase price or the agreed term(s) has taken place or the security has been provided.
Paragraph 2: If the delivery is wholly or partially prevented by force majeure, the Supplier is entitled to suspend the delivery, as well as - in the event that the situation resulting in force majeure lasts longer than three months or as soon as it is certain that it will last longer than three months – insofar as not performed, to dissolve the Agreement in whole or in part and to claim payment in respect of the parts that have been performed, without being obliged to pay any compensation to the Customer.
Paragraph 3: Force majeure includes, but is not limited to, fire, flood, strike, epidemics, (civil) war, terrorism, government measures, unavailability of permits, trade embargoes, labor unrest, power failure, business failures, shortcomings or unlawful behavior of the supplier(s) and subcontractors of the Supplier or other third parties, including any defects in the goods delivered by them to the Supplier, and the non (timely) or insufficient availability of materials, transport, fuels, energy and labor power.
Paragraph 4: Delivery takes place ex works, unless expressly agreed otherwise. Costs for transport and insurance are for the account of the Buyer, even if it is agreed that the Supplier will take care of the transport. The transfer of the risk of the Products takes place at the time of delivery, as it must take place on the basis of these general terms and conditions. The transport takes place at the risk of the Buyer, even if the carrier has expressly determined that all transport documents must state that all damage as a result of the transport is for the account and risk of the sender.
Paragraph 5: In the event that the Supplier arranges for the transport, the Customer or a third party designated by it must report any transport damage to the carrier or forwarder immediately upon receipt, but no more than 12 hours after receipt of the Products and send a copy thereof to the Supplier. .
Paragraph 6: Products that have not been purchased by the Customer or a third party designated by him after the expiry of the Delivery Period will be stored by the Supplier at the expense and risk of the Customer. In the event of late acceptance, the Supplier is entitled to dissolve the Agreement after a period of 14 days after the expiry of the Delivery Period, without prejudice to the Supplier's right to compensation and without prejudice to the Supplier's right to sell the Products to third parties.
Paragraph 7: If the Products, in terms of colour, composition, weight, appearance, etc., only deviate to a minor extent from models, samples or examples provided previously or otherwise from what has been agreed, the Products concerned are deemed to comply with the Agreement. The Supplier is in any case deemed to have fulfilled its delivery obligations if the weight or number of the Products delivered does not deviate by more than 5% from what has been agreed.
Paragraph 8: The Supplier is permitted to send Products in parts, whereby each shipment may be invoiced separately.
Article 9 Complaints.
Paragraph 1: The Customer is obliged to check Products immediately after delivery for any Defects.
Paragraph 2: Complaints with regard to Defects in the delivered Products must be submitted in writing as soon as possible, but at the latest within eight days after delivery of the Products concerned, or within eight days after the discovery of the Defect, or at least within eight days after the Defect should reasonably have been discovered, should be made known to the Supplier. If this term is exceeded, the Customer is deemed to agree with (the quality of) the Products delivered and to have waived all rights and powers that it has under the law and/or the Agreement and these general terms and conditions.
Paragraph 3: A complaint as referred to in the preceding paragraph does not suspend the Customer's payment obligations.
Paragraph 4: In the event that the Buyer's complaint is justified in the Supplier's opinion, the Supplier is only obliged, at its discretion, to deliver the missing items, repair or replace the delivered Products or (partial) refund the purchase price.
Paragraph 5: Minor and/or standard deviations in the industry, such as deviations as referred to in article 8 paragraph 7 of these general terms and conditions, can never constitute grounds for complaints. Ground for complaint is only the deviation from the Specification approved by the Customer.
Article 10 Retention of title.
Paragraph 1: All Products delivered to the Customer remain the property of the Supplier, but are for the account and risk of the Customer from the moment of delivery, until all amounts owed under the Agreement as well as the claims due to the Customer's failure to comply with this or other agreement (and), including interest and collection costs, have been paid in full by the Customer.
Paragraph 2: As long as the ownership of the delivered Products has not passed to the Customer, the Customer is not allowed to process the Products, to put them beyond its actual control, to alienate, pledge or otherwise encumber the Products, it will furthermore take all appropriate measures. to separate these Products and to keep them separate from the other goods present at the Customer and to make all necessary efforts to prevent mixing, access or formation of goods.
Paragraph 3: The Buyer undertakes not to assign or pledge any claims it acquires against its customers to third parties and furthermore undertakes to pledge the said claims to it as soon as the Supplier expresses its wish to do so in the manner indicated in art. 3: 239 of the Dutch Civil Code as additional security for its claims for whatever reason against the Customer.
Paragraph 4: The Purchaser is obliged to inform third parties who wish to recover from the Products delivered by the Supplier in writing of the Supplier's property right resting thereon. The Customer must immediately inform the Supplier of this in writing.
Paragraph 5: If the Customer fails to fulfill its obligations or, if the Supplier has good reason to fear that the Customer will fail in its obligations, the Supplier may invoke the retention of title it has made, in which case the Customer is obliged, upon request, to immediately and free of charge to bring the delivered Products into the actual control of the Supplier. The Supplier is furthermore entitled to take these Products back (or have them taken back) from the place where they are located at the expense of the Customer. The Customer hereby irrevocably authorizes the Supplier to enter (or cause to be entered) the spaces used by or for the Customer. After repossession, the Customer will be credited for the market value, which will in no case be higher than the original purchase price, less the costs of the repossession and damage suffered by the Supplier.
Article 11 Payment.
Paragraph 1: Unless otherwise agreed in writing and without prejudice to the provisions of the following paragraph, payments must be made to the Supplier in euros, either net contact or at the offices of the Supplier by means of transfer to or deposit into a bank account to be designated by the Supplier. or giro account, at the option of the Supplier, always 100% net immediately upon order. The Supplier is entitled to invoice electronically, with which the Buyer agrees now for then.
Paragraph 2: Debt comparison or other forms of settlement are never permitted without an explicit written agreement.
Paragraph 3: The Supplier is at all times entitled to demand, in its opinion, sufficient advance payment or security for the fulfillment of the payment obligations before delivering, or continuing with the delivery, whereby the Supplier is entitled to suspend further deliveries if the Customer does not meet this requirement, even if a fixed delivery time has been agreed, without prejudice to the right of the Supplier to claim compensation for damage due to late or non-execution of the Agreement.
Paragraph 4: If the Buyer has not paid the amount owed by it under the Agreement within the agreed term, it will be in default by operation of law and the Supplier will be entitled, without any notice of default being required, to pay it interest from the due date of the unpaid invoice or invoices. an amount of 2% above statutory commercial interest with a minimum interest rate of 12% per year on the invoice amount, without prejudice to all other rights accruing to the Supplier.
Paragraph 5: All judicial and extrajudicial costs to be incurred by the Supplier to collect the invoice amount, always including the fees of third parties engaged by the Supplier, are for the account of the Customer. For the extrajudicial costs, the Customer owes at least 10% of the principal sum, with an absolute minimum of €250.
Paragraph 6: If the Customer is in default with regard to its obligations under the Agreement or these general terms and conditions, all payment obligations of the Customer to the Supplier, regardless of whether an invoice has already been invoiced, will become immediately due and payable.
Article 12 Intellectual and industrial property rights. Confidentiality.
Paragraph 1: All intellectual and industrial property rights (including trademark rights, design rights and patents) to all designs, drawings, models, samples and examples made available or developed pursuant to the Agreement (hereinafter: “the Information”) are vested exclusively in the Supplier, unless expressly agreed otherwise.
Paragraph 2: The Customer is not entitled to use the Information referred to in the previous paragraph other than for the purpose of using the Products to which they relate as provided for in the Agreement.
Paragraph 3: The Customer will observe confidentiality with regard to all Information, Specifications, all company information and know-how concerning and originating from the Supplier made available to the Customer for the performance of the Agreement. Upon request, the Customer must immediately transfer the confidential information as well as all copies or other multiplications thereof to the Supplier.
Article 13 Infringement of rights of third parties.
Paragraph 1: If it is irrevocably established by a competent court in legal proceedings against the Supplier that a Product supplied by the Supplier infringes an intellectual or industrial property right of a third party, the Supplier will, at its option, replace the relevant item with a Product that is not infringes the relevant right, attempt to acquire a right of use in this respect or refund the Customer the price paid for that Product, less a reasonable depreciation.
Paragraph 2: In the event of replacement or refund, the Supplier is entitled to attach the condition of return of the Products originally delivered.
Paragraph 3: With regard to any infringement of the rights of third parties, the Supplier has no other obligation than the replacement, acquisition or repayment obligation mentioned in the first paragraph.
Paragraph 4: In the event that an Order is executed according to design, drawings, recipes, Specifications or instructions provided by or on behalf of the Customer, or if use is made of goods to be provided by or on behalf of the Customer, the Customer cannot claim the above in this Article stipulated and the Buyer indemnifies the Supplier against all claims related to alleged infringements of intellectual or industrial property rights of third parties.
Article 14 Liability.
Paragraph 1: The Supplier only accepts liability if: • the damage is the direct result of intent or gross negligence on the part of the Supplier or managerial subordinates of the Supplier; • the damage is the direct result of a demonstrable Defect in the Products produced and/or delivered by the Supplier, insofar as these do not offer the safety that can be expected, taking all circumstances into account.
Paragraph 2: The Supplier accepts no liability whatsoever for the incorrect placement of the company logo and/or company name on the Buyer's goods, other processing of the Buyer's goods and/or the delivery of Products, if and insofar as the Defect is the result of inaccuracy or imperfections in the design provided by the Buyer to the Supplier, as well as for infringements that the design makes of the rights of third parties.
Paragraph 3: The total liability of the Supplier due to an attributable shortcoming in the fulfillment of the Agreement is in any case limited to compensation for material and direct damage up to a maximum of the amount of the separately stipulated price for the relevant Products (excl. VAT).
Paragraph 4: For the damage described above, the Supplier in any case accepts no liability for that damage in respect of which its insurer does not pay (on request, the Supplier will provide the Customer with a copy of the insurance agreement concerned). Furthermore, the total liability of the Supplier will never exceed the amount of € 50,000 in total per event.
Paragraph 5: The Supplier can only be held liable for direct or indirect damage for which it has expressly accepted liability in these Conditions.
Paragraph 6: The Customer indemnifies the Supplier against all claims from third parties who claim to have suffered damage as a result of a Defect in a good that was delivered by the Customer to a third party and that (partly) consisted of goods delivered by the Supplier, except if and insofar as the Customer proves that the damage is solely and solely caused by the Products delivered by the Supplier.
Paragraph 7: In the event of force majeure as referred to in article 8 paragraph 3 of these general terms and conditions, the Supplier is never liable for any damage whatsoever.
Paragraph 8: Insofar as not expressly agreed otherwise in writing, all legal claims based on the Agreement and these general terms and conditions lapse one year after the delivery date.
Article 15: Return of leased and loaned goods.
Paragraph 1: If the Supplier has rented and/or loaned items to the Buyer during the performance of the Agreement, whether or not against payment, the Buyer is obliged to immediately after termination of the Agreement, for whatever reason, return these items to the original condition, free from defects and fully returnable. The aforementioned term shall be regarded as a strict deadline.
Paragraph 2: If the Customer, for whatever reason, does not comply with the obligation referred to in paragraph 1, the Supplier has the right to recover the resulting damage and costs, including the costs of replacement and lost rental income, from the Customer, without prejudice to all other Supplier rights accruing.
Article 16: Dissolution.
Paragraph 1: If the Customer fails to fulfill one of its obligations towards the Supplier, or fails to do so on time or properly, applies for a suspension of payments, becomes bankrupt or terminates its business, in the event of a legal merger or if a substantial part of the control if the Buyer changes hands, all invoices are immediately due and payable and the Supplier is entitled – without judicial intervention and/or further notice of default being required – to dissolve all or part of (all) Agreements concluded with the Buyer by means of a written statement and the Supplier is entitled to compensation for all direct, indirect and consequential damages, including lost profits, without prejudice to other rights to which it is legally entitled.
Paragraph 2: If, even after a written reminder to that effect, the Supplier does not, not timely or not properly fulfill its obligations, the Customer may dissolve the Agreement for the defective part, without however being able to claim compensation for damages due to termination, whereby the provisions of Article 10 of these general terms and conditions with regard to the retention of title remains in force.
Article 17: Disputes/applicable law/choice of forum.
Paragraph 1: These general terms and conditions and all offers and Agreements to which these general terms and conditions apply are exclusively governed by Dutch law. The UN Convention on International Sales Contracts (often referred to as the Vienna Sales Convention) does not apply.
Paragraph 2: All disputes arising between the Supplier and the Customer will be settled exclusively by the competent court in the district in which the Supplier's place of business is located.
Article 18: Other provisions.
Paragraph 1: These general terms and conditions are available in the Dutch, German, English and French languages. In the event of any incompatibility between the Dutch, German, English and/or French versions, the Dutch version shall prevail.
Paragraph 2: These general terms and conditions can be changed by the Supplier (at least by the Promotional Products Platform). Changes will be notified by the Supplier to the Customer in writing and will take effect thirty (30) days after the announcement, unless a different date is indicated in the announcement. The customer now already agrees to the content and applicability of the then amended general terms and conditions from the date of entry into force indicated in the announcement.
Paragraph 3: If a provision of the Agreement or these general terms and conditions proves to be void or otherwise unenforceable, this will not affect the validity of the other provisions of the Agreement and the general terms and conditions. In that case, the Supplier has the right to substitute a provision that approximates as much as possible the purpose and intent of the void/nullified or unenforceable provision.