General Conditions of Delivery and Payment. These conditions have been filed under number 65804910 at the Chamber of Commerce in the Netherlands, 31st July 2017.
Article 1 General
- Supplier means Phanine BV, having its registered office in 5492 NP Sint Oedenrode, the Netherlands, Speijkerstraat 4, and registered with the Chamber of Commerce and Industries in the Netherlands under number 65804910.
- Client means any legal entity that enters into a delivery contract or places an order with the supplier.
- The general conditions apply to all quotations, orders and contracts between the supplier and client.
- A copy of these conditions can be obtained on request from the supplier or the Chamber of Commerce in Eindhoven.
- Any other conditions only apply if confirmed by the supplier in writing.
- Conditions from clients only apply if they are not contrary to these conditions.
Article 2 Quotations and pro forma invoices
- Any quotations or pro forma invoices issued by the supplier are without obligation unless the quotation or pro forma invoice mentions a period for acceptance.
- If a quotation or pro forma invoice is accepted, both the supplier and the client are entitled to revoke the contract within two working days following acceptance.
- All prices mentioned in the quotation are given in Euros (€), per unit, exclusive of BTW (Dutch VAT) and ex warehouse in Best (the Netherlands), unless otherwise indicated.
- Minor deviations of the supplied goods as to images, drawings, specified sizes and descriptions do not constitute a reason to review or dissolve the contract.
- The supplier is under no obligation to make a delivery at a price mentioned in the quotation if this price is based on an misprint or writing error.
- The supplier is not liable for any incorrect delivery and/or invoicing as a result of orders given by phone or fax, even if the written order confirmation follows after delivery has taken place.
Article 3. Contract
- A contract, including any changes and additions, is only concluded after the client has signed the quotation or order from the supplier. Any other orders will automatically result in a contract unless the client revokes the order within two working days following receipt of the order confirmation.
Article 4. Changes to the Contract
- The supplier is not obliged to accept or deliver changes to the original order of any nature whatsoever, made in writing or otherwise by or on behalf of the client.
- If changes are made by word of mouth, phone or fax, the risk for correct execution of the order will be at the client's expense.
- The supplier reserves the right to make partial deliveries if he considers this necessary or is forced to do so as a result of stock limitations or other operational matters.
Article 5. Force Majeure
- If it becomes clear after conclusion of the contract that the execution hereof by the supplier is troublesome or impossible as a result of force majeure, the supplier is entitled, at its own discretion and without legal intervention, to cancel the orders or suspend their execution insofar as they still need to be executed. The client will be informed hereof as soon as possible. In such case, the client is not entitled to compensation.
- Force majeure includes: any situation in which the supplier cannot perform its obligations or a part thereof as a result of circumstances beyond the supplier's control, such as, however not limited to, interruption, delay or termination of the production and/or delivery by the manufacturer, importer, distributor or supplier and for which the supplier also cannot be blamed pursuant to the law, a guarantee issued by the supplier or common opinion.
Article 6. Orders Involving Delivery on Call
- If the supplier and client have agreed to a period of time for deliveries on call, the client will be charged with all reasonable expenses resulting from low quantity purchases by the latter.
Article 7. Cancellation, Suspension, Dissolution
- Cancellation of the order or the returning of the delivered goods by the client requires prior approval in writing of the supplier.
- If on the basis of paragraph 1 of this article the contract is cancelled or the delivered goods are returned, the client have to pay the supplier all direct and indirect expenses reasonably incurred and/or any loss of profit.
- If the client fails to comply with his obligations in respect of previously executed deliveries, also those not covered by this contract, the supplier has the right to suspend its own obligations towards the client and to cancel any outstanding orders or parts thereof. The same applies if it becomes clear that the client cannot provide sufficient creditworthiness, this at the discretion of the supplier on the basis of market information or consulted credit insurance companies.
- The contract will end taking effect immediately if the client dies, is wound up, is given a prison sentence, goes bankrupt, is granted suspension of payments, is placed under guardianship or if the company of the client is sold (under execution), does not have the required operating licenses, relocates, goes abroad or has provided incorrect or incomplete data.
Article 8 Terms of Payment
- The invoice date is decisive for the start of the term of payment.
- Setting off of debts is never permitted.
- Payment for the delivery of goods must be made to the supplier in the way mentioned in the contract and within the established term without discount (including costs of banking transactions) or setting off of debts unless otherwise agreed to in writing.
- The supplier is entitled to demand an advanced payment or payment on delivery from the client, in which case the client will be informed hereof.
- Payments made before their agreed due date never give the right to any discount whatsoever, unless the supplier has stipulated this in writing in respect of the payment in question.
- If the client defaults on payment, he will owe the supplier the statutory commercial interest under Section 119a of the Netherlands Civil Code on the amount of the invoice that is still outstanding, counting part of a month as a whole month. In such case, the client will also owe the supplier all reasonable expenses incurred to obtain payment out of court, which expenses are calculated on the basis of the prevailing commercial collecting rates with a minimum of EUR (€) 250.-.
- The supplier is entitled in any case to exercise its right of retention in respect of goods from the client that it is in possession of until its total claim against the client has been settled.
Article 9. Delivery and Payment
- The first delivery to a new client takes place on the basis of a pro forma invoice to be paid in advance.
- Unless otherwise agreed to in writing, deliveries, including back orders, only take place against payment within 14 days.
- The supplier chooses the means of transport. When unloading, the client must follow the instructions of the supplier.
- The supplier is entitled to make partial deliveries. Any additional costs will be borne by the supplier.
Article 10. Risk
- If the supplier takes care of the transport, the delivered goods are at the risk of the supplier until the moment they are unloaded; if the client collects the delivery himself, the goods will be at his risk until the moment they are loaded in one of the supplier's warehouses.
- The loading takes place at the client's expense.
Article 11. Obligations of the Client
- If the supplier takes care of the transport, the client has to make sure that the carrier records any visible defects or damages directly on the delivery note or the carriage documents. In any case, the contents of the delivery must be checked and any shortage and/or damages must be reported to the supplier within 48 hours after receipt of the delivery.
- In case of delivery ex warehouse, the client must check all goods for shortage or damages before loading.
Article 12. Complaints
- In case of delivery according to art. 11.1, complaints must be filed within 48 hours following delivery. Complaints not filed within the stipulated period of time will not be dealt with.
- In case of delivery according to art. 11.2, no complaints may be filed after delivery.
- If desired, the client must give the supplier the opportunity to inspect the defects, surrendering goods if necessary.
- Minor deviations in the delivered goods in respect of dimensions, colour, form, texture, packing or any other specification do not constitute a reason to cancel the order or, as the case may be, the delivered goods wholly or in part, to refuse payment wholly or in part, or to claim damages from the supplier.
- Complaints will not be dealt with if the client has made any changes or repairs to the delivered goods.
- Return shipments will not be accepted unless the supplier has given its prior approval in writing. Return shipments must be packed adequately, in default whereof the right of reclamation ceases to exist. The costs and risk of return shipments will be at the expense of the client.
- If the client has not filed a complaint at the latest within 48 hours following delivery, he is deemed to have approved and accepted the delivered goods. This term also applies to invoices.
Article 13. Remuneration, Replacement
- The supplier is entitled to repair or replace the goods in respect of which a complaint is filed if this is done within a reasonable period of time, even if this means that a previously determined delivery deadline is exceeded.
- If the supplier is not capable of repairing or replacing the goods, it will issue a credit invoice which on the request of the client will be set off with the next invoice or paid into a bank or giro account to be designated by the client.
Article 14. Delivery Period
- Delivery times are indicative and are given by approximation only, unless otherwise expressly agreed to in writing.
- Exceeding of the delivery time with a reasonable time and on a reasonable ground does not constitute a reason to proceed to the dissolution of the contract.
- The supplier is not liable in any case for any damages that result from exceeding the delivery time.
Article 15. Retention of Title
- The supplier retains title to all goods it has delivered to the client until the purchase price including costs and BTW (Dutch VAT) has been fully paid for all these goods.
- Goods subject to retention of title by the supplier may only be resold to third parties within the context of the normal business operations of the client.
- In case the client fails to perform its obligations towards the supplier, or if a reasonable fear exists that the client will fail to do so, the supplier is entitled to recover or cause to recover the delivered goods that are subject to this retention of title from the client or third parties holding the goods for the client. To this end, the client must render its full assistance, in default whereof the client has to pay the supplier an immediately payable penalty of 10% of the amount due by the client for each day - including a part of a day - that the client remains in default towards the supplier, without prejudice to the obligation to surrender the goods.
- The client undertakes towards the supplier that if third parties want to establish or exercise rights to goods subject to the retention of title by the supplier, it will notify the supplier hereof without delay and inform the third parties about the supplier's retention of title. The client undertakes towards the supplier to render its assistance, within reasonable limits, to all measures that the supplier wants to take in order to protect its title to the goods.
- As long as the client has any payment obligations towards the supplier, all goods coming from the supplier and held by the client are the property of the supplier pursuant to the retention of title incorporated in this article.
- The supplier reserves the rights of pledge, now for then, as referred to in Section 3.237 of the Netherlands Civil Code, on the delivered goods of which the ownership has passed to the client following payment and which are still held by the client, as an additional security for claims other than those mentioned in Section 3.92, paragraph 2, of the Netherlands Civil Code, that the supplier might have against the client on any account whatsoever. On first request of the supplier, the client will render its assistance to the establishment of the right of pledge by means of registration.
Article 16. Online SalesIf the products are offered for sale online, they must meet the following quality criteria:
- All products the client offers online must be pictured in its webshop and the pages must contain the requisite product information, including in any case the brand name of the product and the safety guidelines.
- The client’s name, address, telephone number, e-mail address, and number in the trade register must be clearly visible on the website.
- The client’s webshop must satisfy the statutory e-commerce rules for trading with consumers.
- The client must have a helpdesk number that is available from 9 a.m. to 5 p.m. at least five days per week.
- The client must keep an adequate stock in order to meet delivery deadlines that are satisfactory to clients.
- The webshop must be visually attractive and must be suitable for the nature, quality and image of the products; the image of the webshop as a whole must promote the sale of the products. The webshop must contain a section or page that focuses exclusively on presenting the products or related product sector (which must encompass the products).
- If the website is hosted on a third-party platform, client access to the website must not be provided via a site that carries the name or logo of the third-party platform (e.g., online sites such as eBay, Amazon, and Marktplaats.nl).
- The client’s domain name must not use, state, or incorporate the trade name Phanine and/or include any of the trade names and/or brand names of the product manufacturer;
- In the case of reselling Phanine products, the client undertakes to comply with all applicable privacy laws.
- The client will not hold itself out as an agent of Phanine and/or enter any commitments in Phanine’s name.
- The client commits itself to achieving maximum client satisfaction.
- Should any of the aforesaid provisions be violated, Phanine reserves the right to refuse to sell and/or supply (or continue to sell and/or supply) products to the client or potential clients.
Article 17. Purchase Prices
- The client must use the minimum selling prices mentioned in the prevailing catalogues and price list of the supplier as minimum prices at all times. These minimum selling prices in the price list are inclusive of BTW (Dutch VAT).
- In specific cases, the supplier and the client may agree to vary from the minimum selling prices referred to in paragraph 1. To this end, the client must submit a written request to the supplier. The client may only use lower selling prices after having obtained written approval form the supplier.
Article 18. Copy Rights
- The supplier continues to be the owner of the intellectually property rights, such as, among other rights, the copy right and/or design right in respect of images, drawings, photographs, designs, models, calculations, invoices, and other descriptions such as catalogues or prospectuses related to the delivered goods.
- Without written permission from the supplier, the client is not permitted to use the rights mentioned in paragraph 1 in the broadest sense of the word, such as, without being limited to, the making of reproductions.
- Per violation of the violations mentioned in paragraph 2, the client has to pay the supplier a penalty of EUR (€) 10,000.-. without any legal intervention being required.
- The client indemnifies the supplier against any action of third parties based on the violation of the intellectually property right in respect of the order that is executed at the client on instruction of the supplier.
Article 19: Liability
- The supplier, its employees or, as the case may be, any third parties called in by the supplier, will only be liable towards the client or towards third parties for late delivery or faultiness of the delivered goods or performances, or for the failure to comply with its obligations to the extent to which exclusion of liability is not permitted by law. For all other cases, therefore, liability is expressly excluded without prejudice to other conditions in force between the parties restricting liability.
- If the supplier is liable on account of any agreed delivery, this liability is limited, at most, to the amount equal to the invoice amount or in case of partial delivery, the invoice amount of the partial delivery.
- The supplier will never be liable for nonmaterial damage, loss of profits, discontinuation damages and/or other (indirect) damages, related to or resulting from the goods and/or deliveries, whether correct or not or made in time or not.
Article 20. Miscellaneous
- The supplier reserves the right to demand direct and strict compliance with these conditions, even if it has allowed variations from these conditions, whether tacitly or not, during shorter or longer periods of time. The client cannot derive any rights from the fact that the supplier has been flexible in the application of the conditions.
Article 21: Competent Court
- All disputes, including those considered as such by one party only, arising from or connected with the contract to which these conditions apply, or connected with these conditions themselves and their interpretation or execution, whether of factual or legal nature, will be settled by the competent court in the district of the supplier.
- If according to the law a court is competent other than the court designated in paragraph 1 of this article, the client has the right to declare that he does not agree to the reliance on the first paragraph of this article within one week after he has been informed by or on behalf of the client of the fact that the dispute will be submitted to the competent court in the district of the supplier.
- Without prejudice to the stipulations laid down in paragraphs 1 and 2 of this article, the supplier is authorized to submit the disputes mentioned in the first paragraph of this article to the court that is competent according to the normal rules of competency.
Article 22: Applicable Law
- Dutch law is applicable to all contracts between the supplier and client.
- The applicability of article 19 of the Vienna Sales Convention (CISG) is excluded to the extent possible.
- In case of any misinterpretation or dispute about the interpretation of these conditions the Dutch version will be the determining and only correct version of these conditions.