GENERAL TERMS & CONDITIONS OF SUPPLY AND SALE TO NON-CONSUMERS OF: MOODZZ BV, Blankensteijn 5, Hedel, the Netherlands.
In the present General Terms & Conditions the following terms are used in the meanings set out below, unless expressly stated otherwise:
the Supplier: MOODZZ BV, the user of the General Terms & Conditions;
the Buyer: the other party to the Supplier, acting in the course of his/her profession or business;
Agreement: the Agreement concluded between Supplier and Buyer.
1. The provisions of the present Terms & Conditions apply to all offers and all agreements concluded between the Supplier and a Buyer, insofar as parties have not expressly agreed to depart from said Terms & Conditions in writing.
2. The Conditions (of Purchase) of the Buyer are not applicable and are expressly rejected by Supplier.
3. In the event that one or more of the provisions in the present Terms & Conditions is invalid, unenforceable or void, the remaining provisions of the present Terms & Conditions continue to apply in full. Supplier and Buyer shall meet to agree new provisions to replace those provisions that have been declared invalid, unenforceable or void. In doing this the purpose and meaning of the original provision will be taken into account if and insofar as possible.
3. Offers and Quotations
1. Offers / Quotations made by Supplier are without obligation. They are valid for thirty days, unless stated otherwise. Offers are only binding on Supplier in the event that acceptance thereof is confirmed in writing by Supplier within thirty days.
2. Delivery periods made by Supplier in offers/ quotations are approximate and if exceeded do not give Buyer the right to terminate the Agreement or to claim compensation for loss or damage unless expressly agreed otherwise.
3. Prices quoted in the offers and quotations referred to above are excluding BTW (Dutch VAT) and other government levies as well as postage charges and any costs of carriage and packaging, unless expressly agreed otherwise in the Agreement in writing.
4. In the event that Acceptance varies from the terms of the Offer set out in the quotation, the above is not binding on Supplier. The Agreement is only concluded in accordance with the above variation if Supplier states that this is the case.
5. A combined quotation does not oblige Supplier to deliver part of the goods mentioned in the offer or quotation at a corresponding proportion of the price quoted.
6. Offers/quotations do not automatically apply to follow–up orders.
4. Performance of the Agreement
1. Supplier shall perform the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All the above on the basis of the latest scientific knowledge at the time.
2. If and insofar as necessary for adequate performance of the Agreement the Supplier has the right to have work carried out by third parties.
3. Buyer must ensure that all and any information which Supplier believes to be necessary to the performance of the Agreement or about which Buyer within the bounds of reasonableness could be deemed to understand to be necessary to said performance, that said information is furnished timely/correctly/completely/ to Supplier. In the event that the information necessary for the performance of the Agreement is not furnished timely/correctly/completely/ to Supplier, Supplier has the right to suspend performance of said Agreement and/or to charge the Buyer for any extra costs resulting from the delay. Said charges to be made at the customary rate.
4. Supplier is not liable for loss or damage of any nature whatsoever resulting from Supplier’s reliance on information provided by Buyer.
5. In the event that it has been agreed that the Agreement shall be performed in stages, Supplier may suspend performance of those parts belonging to a subsequent stage, until Buyer has approved the results of the previous stage in writing.
6. In the event that work within the scope of the order is performed by Supplier or by third parties engaged by the Supplier on the Buyer’s premises or at an address designated by Buyer, Buyer must ensure that all reasonable requests for facilities made by employees are provided free of charge.
7. Buyer indemnifies Supplier against any claims by third parties suffering loss or damage arising from the performance of the Agreement and which are imputable to Buyer.
1. Delivery occurs ex factory/shop/warehouse of Supplier - Ex Works (Incoterms 2000).
2. Buyer is obliged to accept the goods at the moment of delivery by Supplier or by a person acting for or on Supplier’s behalf.
3. In the event that Buyer refuses acceptance or has failed to provide information or instructions that are necessary for delivery, Supplier reserves the right to store goods at the Buyer’s risk and expense.
4. In the event that goods are delivered to such destination as Buyer may direct, Supplier is entitled to charge for any such delivery costs; said costs will be invoiced separately.
5. In the event that Supplier is in need of information from Buyer during performance of the Agreement, the delivery period shall only commence after Buyer has made said information available to Supplier.
6. In the event that Supplier mentions a time of delivery, said time of delivery is approximate. Any delivery date stated is never a deadline. If a term is exceeded Buyer must give written notice of default.
7. Supplier reserves the right to supply the goods by way of partial delivery, unless agreed otherwise in writing. Supplier reserves the right to invoice goods thus supplied separately.
6. Samples and models
If a sample or model is made available to Buyer, it is only meant to be an indication without it being necessary for the goods to correspond with said sample/model, unless it is expressly agreed in writing that said goods shall correspond therewith.
7. Inspection, Complaints/Claims
1. Buyer is obliged to inspect the goods or have a person acting for or on his behalf inspect said goods at the time of delivery / handing over, at any rate, within as short a period as possible. Such inspection on the part of the Buyer should include checking that the quality and quantity of the goods supplied are in conformity with that which was agreed under the Agreement, or at any rate that said quality and quantity meet any requirements in the course of a normal trade or business.
2. Notice of any visible defects or of insufficient delivery must be given in writing to Supplier within 3 days upon delivery. Hidden defects or any insufficient delivery not immediately apparent should upon discovery be reported between 3 weeks and 6 months at the very latest.
3. In the event that as a consequence of 7(2) a complaint is lodged within the time specified, Buyer is still obliged to accept and pay for the goods ordered. Should Buyer wish to return goods that are defective, the above shall occur with the Supplier’s prior written permission in the manner as set out by Supplier.
8. Reimbursements, price and costs/charges
1. Even if Supplier and Buyer have agreed a firm selling price, Supplier nevertheless reserves the right to increase said price. Supplier can inter alia pass on any price increases, if between the time of the offer and the performance of the Agreement significant changes in price have occurred e.g. with regard to exchange rates, wages, raw materials, semi manufactures and packaging.
2. The prices charged by Supplier are excluding BTW and any other duties/charges, as well as excluding costs to be incurred in the course of the Agreement, which include postage and administration costs, unless stated otherwise in the Agreement.
9. Variation of the Agreement
1. In the event that during the performance of the Agreement it becomes evident that for an adequate performance thereof it is necessary to change the work yet to be performed and/or to supplement said work, parties shall in a timely fashion and by way of mutual discussion modify the Agreement accordingly.
2. In the event that parties agree to modify and/or supplement the Agreement, said modification/supplementation may affect the completion time of the performance thereof. Supplier shall notify Buyer in case of the above as soon as possible. Should the modification and/or supplementation have financial consequences or consequences of a qualitative nature in relation to the Agreement, Supplier shall notify Buyer hereof in advance.
3. In departure from the above stipulation Supplier shall not be able to charge additional costs in the event that said modification or supplementation is the result of circumstances imputable to Supplier.
1. Payment should be effected within 14 days from the invoice date in the manner indicated by Supplier and in the currency stated on the invoice. The obligation to pay is not suspended in case of objection to the amount on the invoice.
2. In the event of failure to pay within the 14-day period Buyer is in default by operation of law. In case of the above Buyer is liable to pay interest at the rate of 1% a month, unless the statutory interest rate is higher, in which case, the statutory interest rate applies. Interest on the amount due and payable is calculated from the time that Buyer is in default until the moment of payment in full.
3. In case of liquidation, insolvency, seizure or suspension of payments on the part of Buyer all and any claims against Buyer are immediately due and payable.
4. Supplier has the right to accord preference to payments made by Buyer first to reduce all costs, subsequently to reduce the sum of interest costs, and lastly to reduce the principal amount and any interest accrued. Supplier may without being in breach refuse an offer of payment in the event that Buyer allocates a different order of payment in respect of said offer of payment. Supplier may refuse repayment in full of the principal sum if said repayment does not include the payable and accrued interest as well as the costs incurred.
11. Retention of Title
1. All goods supplied by Supplier, including any designs, sketches, drawings, films, software, (electronic) files etc. remain the property of Supplier until Buyer has performed all and any obligations under the Agreement (including the obligation to pay).
2. Buyer is not authorized to pledge goods falling under the retention of title condition or to charge said goods in any way whatsoever.
3. In the event that a third party seizes goods falling under retention of title or intends to establish or enforce rights thereon, Buyer is obliged to notify Supplier of this matter as soon as can reasonably be expected.
4. Buyer undertakes to take out insurance on the goods falling under retention of title and to maintain said insurance in case of fire, loss or damage caused by explosion or water as well as in case of theft and to make available the policy of the above insurance for inspection upon demand.
5. Goods supplied by Supplier may only be sold on within the normal course of a business and the proceeds any such resale may never be used as a means of payment.
6. In the event that Supplier intends to enforce its rights of retention of title as set out under the present clause, Buyer hereby grants an unconditional and irrevocable right of entry to Supplier or to a third party to be designated by Supplier to enter all those places where the property of Supplier is located and to repossess said goods.
1. Supplier warrants that the goods to be supplied correspond with what has been agreed under the Agreement or, as the case may be, fitness for purpose in accordance with the usual requirements and standards with which said goods should comply. The guarantee applies for a period of 6 months upon delivery.
2. In the event that the goods to be supplied do not comply with the above guarantee, the Supplier shall, upon written notice of defect on the part of the Buyer within a reasonable time upon receipt thereof or, in the event that return of said goods is in all fairness not possible, in case of the above Supplier shall replace or ensure repair of said goods at Supplier’s discretion. In case of replacement Buyer hereby duly undertakes to return to Supplier the goods that have been replaced and to transfer property in the goods.
3. The present guarantee does not apply when the defect has occurred as the result of inappropriate or improper use or when the Buyer or a third party has made changes to the goods or has used said goods for purposes other than those for which they were designed.
4. In the event that the guarantee given by Supplier is in respect of a good manufactured by a third party, said guarantee is limited to the guarantee given by the manufacturer.
13. Collection charges
In the event that Buyer fails to comply with or is in breach of the performance of one or more of his/her obligations, all reasonable costs incurred in the obtainment of extrajudicial payment are for Buyer’s account. In the event that Buyer remains in default of the timely payment of a sum of money, he is liable to pay an immediate fine amounting to 15% of the amount still outstanding; the above fine amounting to a minimum of € 500. Any reasonable legal and enforcement costs shall also be borne by Buyer; Buyer is liable to pay interest on the legal and enforcement costs thus incurred.
14. Suspension and Termination
1. Supplier is authorized to suspend performance of the obligations or to terminate the Agreement in the event that:
- Buyer fails to perform his/her obligations under the Agreement or fails to perform fully;
- upon conclusion of the Agreement Supplier becomes aware of circumstances that give Supplier good reason to fear that Buyer shall fail to perform his/her obligations. In case there is good reason to fear that Buyer shall only perform his/her obligations in part or not properly, in case of the above, suspension is only permissible insofar justified by said failure to perform; and/or
- the governments in question refuse to issue any requisite import and/or export licences in respect of the goods to be delivered.;
- Buyer upon conclusion of the Agreement was requested to furnish security in respect of the fulfilment of his/her obligations under the Agreement and said security was not provided or is insufficient. Upon the provision of security the right to suspend performance lapses, unless said performance suffers unreasonable delay on account of this.
2. Further Supplier has the right to terminate the Agreement or ensure termination thereof in the event that circumstances occur of a such nature under which performance of the Agreement is impossible or can no longer be required within the boundaries of reasonableness and fairness, or, as the case may be, in the event that other circumstances occur of such a nature that it would be unreasonable to expect the Agreement to continue unchanged.
3. In case of termination of the Agreement, the Supplier’s claims against Buyer become immediately due and payable. In case of suspension of performance of obligations on the part of the Supplier, Supplier retains the right to any claims by law and under the Agreement.
4. The above without prejudice to the Supplier’s right to claim damages.
15. Return of goods made available for use
In the event that Supplier during the performance of the Agreement made goods available for use by Buyer, Buyer is obliged to return any goods thus supplied within 14 days, in their original condition, free of defects and in their entirety. In the event that Buyer fails to fulfil said obligation he will be sent a notice of default and will be liable for all costs directly resulting from the above.
1. In the event that the goods supplied by Supplier are defective liability on the part of Supplier towards Buyer is limited to the provisions set out under (12).
2. In the event that Supplier is liable for direct loss or damage, liability is limited to a maximum of twice the invoice amount, or that part of the Agreement to which said liability pertains, or to a maximum of € 10,000 (ten thousand euro). Liability is at all times limited to at most the amount paid out by Supplier’s insurer in respect of the issue in question.
3. Direct loss or damage is exclusively taken to mean:
- reasonable costs made in order to ascertain the cause and the extent of said loss or damage, insofar as assessment thereof relates to loss or damage within the meaning of the present Terms & Conditions;
- any reasonable costs incurred to ensure Supplier’s defective performance shall conform to the terms of the Agreement, unless said defect cannot be imputed to Supplier;
- reasonable costs sustained in the prevention or limitation of said loss or damage, insofar as Buyer can prove that the above costs resulted in the limitation of said loss or damage within the meaning of the present General Terms and Conditions.
4. Supplier is never liable for indirect loss or damage, consequential loss or damage, loss of profit, lost savings and loss or damage resulting from interruption to business.
5. Limitation of liability in respect of direct loss or damage as set out under the present Terms & Conditions do not apply in case of loss or damage imputable to wilful act of damage or acts of gross negligence on the part of Supplier.
17. Force majeure
1. Parties are not obliged to perform any obligation in the event that parties are hindered from doing so as a result of circumstances beyond their control unless said circumstances are the fault of a party, or a party is accountable by law or by generally accepted standards.
2. In the present Terms & Conditions force majeure is taken to mean, in addition to what it is taken to mean as laid down by law and by legal precedent, all external causes, foreseen or unforeseen, over which Supplier has no control but on account of which Supplier is unable to perform its obligations. The above includes industrial action taken in the Supplier’s company.
3. Supplier also has the right to rely on force majeure in the event that the circumstances hindering (further) performance occur after the occurrence of Supplier’s obligation to complete.
4. Parties may suspend obligations arising under the Agreement during the period that the force majeure continues. In the event that said period lasts longer than two months, each party has the right to terminate the Agreement without being liable to pay the other party damages.
5. Insofar as Supplier has at the time of commencement of the force majeure, already performed its obligations under the Agreement in part or would have been able to perform said obligations, and in the event that independent value can be attributed to the part already performed or would have been performed, respectively, Supplier reserves the right to invoice separately the part already performed or able to be performed. Buyer is obliged to pay any such invoice as if it were under separate Agreement.
18. Indemnification and Passing of Risk
1. Pursuant to (16) Buyer shall indemnify Supplier against all claims by third parties regarding Intellectual Property rights on material or information made available by the Buyer which is used in respect of the performance of the Agreement.
2. Any risk of loss or damage to the products which are the object to the Agreement passes to Buyer at the time all and any legal requirements have been satisfied and/or upon the moment goods actually are tendered, and as a result thereof the property in the goods passes to Buyer or to a third party to be designated by Buyer.
19. Intellectual Property
1. Without prejudice to the other provisions set out under the present General Terms & Conditions, Supplier reserves the rights and powers to which he is entitled pursuant to the Laws of Industrial and Intellectual Property Rights including the Copyright Act.
2. Buyer is not allowed to make changes to the goods unless it follows from the nature of the goods supplied or it has been otherwise agreed in writing.
3. Any designs sketches, drawings, films, software and other material/s or (electronic) files created in the course of the Agreement are and shall remain the property of Supplier, irrespective of whether any of the above has been handed to the Buyer or to a third party, unless explicitly agreed otherwise in writing.
4. Any documents provided by Supplier such as designs, sketches, drawings, films, software, (electronic) files, etc. are only intended for use by Supplier and without the prior consent of Supplier may not be copied, be distributed or made available to a third party, unless the nature of said documents dictates otherwise.
5. Supplier reserves the right to use for other purposes any additional knowledge obtained during performance of the work, insofar as no confidential information in connection herewith is disclosed to a third party.
1. Parties are – during and upon performance of the Agreement - mutually obliged to keep secret any company business of which they become aware in the course of the above performance.
2. Buyer is prohibited during the duration of the Agreement and also for up to one year upon termination thereof from employing in any way whatsoever, except subsequent to appropriate consultations with Supplier, persons employed by Supplier or by companies engaged by Supplier who were or who have been involved in the performance of the Agreement or as the case may be from having said employees perform work for or on Buyer’s behalf directly or indirectly.
3. The competent court in the Supplier’s place of business shall have exclusive jurisdiction over any disputes. However, Supplier may decide upon its total discretion that a claim or action under an agreement may be brought and will be subject to the relevant local law or local competent courts which may have jurisdiction over Buyer. Parties shall only institute legal action after having done their utmost to settle any dispute by mutual consultation. Each Agreement between Supplier and the Buyer is governed by the Laws of the Netherlands. The Vienna Sales Convention is hereby explicitly excluded.
A copy of the present Terms & Conditions has been filed with the offices of the Chamber of Commerce in Tiel. In case of interpretation of the contents and purport of same General Terms & Conditions, the Dutch version shall prevail. The last filed version or the version that was applicable at the time the Agreement came