TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF THE PRIVATE COMPANY
1. Validity of these terms and conditions and definitions
1.1. These terms and conditions shall apply to all offers made by us, all agreements entered into by us with third parties and/or all orders placed with us by third parties.
1.2. Should the client have terms and conditions of delivery or sale or purchase conditions that deviate from our terms and conditions, we shall not be bound by these unless they have explicitly been accepted in writing.
1.3. Once the client has purchased goods from the seller subject to the present terms and conditions, he shall be deemed to have tacitly agreed to the applicability of these terms and conditions when placing any subsequent orders verbally, in writing, by telephone, by telegraph or in any other way, regardless of whether such an order has been confirmed in writing.
1.4. In these terms and conditions, business shall be understood to mean a client acting in the course of a profession or business and who is not therefore a consumer.
1.5. In these terms and conditions, consumer shall be understood to mean a client who is not acting in the course of a profession or business.
1.6. Distance selling refers to the sale of goods or services where there is no face to face contact between the consumer and the seller, as in the case, for example, of goods sold via the internet (all as referred to in the Dutch Distance Selling Act (Wet Kopen op Afstand) of 1 February 2001).
2.1. All quotations and offers are without obligation, unless they contain a period for acceptance. Should a quotation contain an offer without obligation and this is accepted, we reserve the right to withdraw the offer within 5 days of receipt of the confirmation.
2.2. We are entitled to reject an order without giving reasons for this. We shall only be bound by offers or arrangements made by representatives or other members of staff if these are confirmed by us in writing.
3.1. Quotations are always given on the basis of the prices applicable at the time at which the agreement comes into effect. Should prices subsequently increase (for example as a result of increases in excise duty and/or other charges etc.), we reserve the right to pass on the difference in price to the client.
3.2. Discounts are granted per transaction and the client cannot derive any right to such discounts for subsequent transactions.
4. Cancellation and amendment.
4.1. Where an order has been placed with us by a business or by a consumer, and no distance selling is involved:
In the event of the cancellation of such an order, all costs incurred shall be for the account of the client, on the understanding that the client shall in any event be obliged to pay us at least 10% of the principal sum as cancellation costs, without our being obliged to demonstrate that the said costs have actually been incurred.
4.2. The provisions of the preceding clause shall apply without prejudice to our right to compensation for lost profit, as well as for other loss or damage suffered by us as a result of the deliberate cancellation. Our consent must be obtained for an order to be cancelled.
4.3. Should an order or agreement be changed in the interim, such changes shall only be deemed to have been accepted by us once we have confirmed this in writing.
4.4. In the case of distance selling involving a consumer where no delivery period has been agreed, the client shall be entitled to dissolve the agreement without incurring any costs by means of a written notification to Broekmans & van Poppel BV if the order has not been delivered within 30 days. Delivery shall be deemed to have taken place at the time at which the ordered goods are delivered to the designated address.
5. Delivery and shipment
5.1. Should no delivery period have been agreed, an order shall in any event be delivered within 30 days. Should a delivery period have been agreed, however, this shall never be regarded as a fixed deadline, unless explicitly agreed otherwise.
5.2. The goods delivered by us shall always be shipped for the account and risk of the client, even if delivery is carriage paid.
5.3. We shall nevertheless be entitled to arrange for the goods to be shipped as we see fit, insofar as the client has not given any specific instructions in this regard. We shall only take out goods-in-transit insurance if the client has explicitly requested this. The cost of this must be borne by the client. All bank and giro charges resulting from the shipment must be borne by the client.
5.4. The client shall never be entitled to compensation should the agreed delivery period be exceeded.
6. Retention of title
6.1. Ownership of the goods shall pass from us to the purchaser only once the purchaser has paid the purchase price and all other amounts owed to us by the purchaser pursuant to this agreement.
6.2. The purchaser shall be entitled to resell and use the goods in the normal way, but shall not be entitled, for so long as payment has not been made in full, to pledge the goods to third parties or to use the goods as security, in the broadest sense of the word, vis-à-vis third parties. Should the purchaser sell the goods subject to our retention of title to a third party, the purchaser shall be obliged to assign the claim arising from this delivery to us immediately and unconditionally. The purchaser shall be obliged to notify us should goods subject to our retention of title be attached.
7.1. Any complaints must be submitted in writing within 7 days of receipt of the goods.
7.2. If the client has not checked that the delivery is in good order within 7 days of receipt thereof, he will be deemed to have accepted the delivery or the performance.
7.3. In cases not involving distance selling, we shall only take back the goods delivered by us within the aforementioned period if, after we have been consulted in advance, these are delivered to our warehouse carriage paid in a good condition, undamaged and in the original packaging. Should the product (such as music books, CDs and DVDs) have been delivered in sealed packaging, the product may only be returned if the packaging is still sealed. The value of the returned goods shall be credited to the client after deducting all costs incurred, including transport costs, costs relating to any customs processing, insurance etc.
7.4. In cases involving distance selling where the consumer does not wish to purchase the delivered goods for whatever reason, the consumer shall be entitled to return the delivered goods to us within 7 days of delivery and to dissolve the agreement. The goods may only be returned and the agreement dissolved if the packaging of the delivered goods is undamaged and any seals are unbroken. The consumer must bear the cost of returning the goods. Any payment already made by the consumer shall be refunded within 30 days of the return of the goods.
8.1. Minor deviations in quality, specifications and the like that cannot be avoided for technical reasons, or which are generally tolerated according to commercial practice, shall not constitute grounds for complaint.
8.2. When assessing whether deviations in a delivery fall outside the permitted limits, the average for the delivery must be ascertained. It is not therefore possible to reject a delivery based on one or two specimens.
9. Copyright and reproduction rights
9.1. By placing an order for the copying or reproduction of objects protected by the Dutch Copyright Act (Auteurswet) or any other proprietary rights, the client declares that this will not result in the infringement of the copyright or any other right of third parties and shall indemnify us in and out of court against all consequences arising from the copying or reproduction of such objects.
9.2. Should the client be entitled to make goods delivered by us available to third parties ? whether permanently or temporarily, and whether or not in return for payment ? or to resell such goods, the client shall indemnify us in and out of court against all consequences arising therefrom.
9.3. The client is explicitly prohibited from carrying out acts with goods delivered by us that are in violation of the Dutch Copyright Act, or any other law in force in the Netherlands, or in the country in which the act is carried out, on pain of a penalty of ? 50,000.00, which must be paid to us immediately and in a lump sum, without prejudice to our right to recover the loss or damage actually suffered, including intangible loss, from the client.
10.1. Should the goods delivered by us display defects or prove to be faulty, we shall repair or replace these free of charge; ownership of the replaced goods shall then pass to us.
10.2. Any further liability with regard to faults or defects is explicitly excluded, except in the case of a consumer sale.
10.3. Following on from the previous clause, we explicitly disclaim any liability for consequential loss or damage and/or loss of profits, except in the case of a consumer sale.
10.4. The client is obliged to indemnify us against and compensate us for all costs, loss or damage and interest that may be incurred by us as a direct or indirect result of claims asserted against us by third parties on account of occurrences, acts or omissions for which we are not liable.
11. Terms of payment
11.1. Unless agreed otherwise in writing, payment must be made, without any discount, within 14 days of the invoice date by means of payment into or transfer to a bank account designated by us.
11.2. Should the purchaser fail to make payment within this period, he shall be in default by operation of law without notice of default being required and shall be obliged to pay the statutory interest plus 2% on the amount owed for the duration of the period of default.
11.3. All judicial and extrajudicial costs that we have to incur shall be for the account of the defaulting purchaser. The extrajudicial costs shall be set at 15% of the outstanding amount including any interest owed, with a minimum of ? 35.00. The client must pay the judicial costs actually incurred, even if these exceed the liquidation rates assessed by the relevant Court. The client must therefore pay the bills from the lawyer, the procurator litis and the bailiff, as well as any other judicial costs.
11.4. The other party shall not be permitted to deduct the seller's payment obligations arising on a basis other than this agreement from the amounts owed by the other party in respect of this agreement, by way of setoff.
12. Bank and/or giro charges
12.1. All bank and/or giro charges arising as a result of bank and/or giro payments must be borne by the client.
12.2. Should it only become apparent that these extra charges have arisen once the principal sum has been paid, these shall nevertheless be charged to the client and the client shall be obliged to pay these charges.
13. Disputes and applicable law
13.1. All agreements and transactions shall be governed by Dutch law.
13.2. All disputes and claims that may arise between us and the client shall be settled by the competent judge of the Amsterdam Court.
13.3. We shall however be entitled to have the dispute settled by arbitration in which case we shall notify the client of this in writing.