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General Terms and Conditions of Sale, Delivery and Payment Chocolagiftbox B.V. Rooseveltstraat 45 c 2321 BL Leiden Trade Register no. 53779150 OCTOBER 2011 ARTICLE 1: APPLICABILITY a. These Terms and Conditions shall apply to all offers, sales and deliveries made by Chocolagiftbox B.V., hereinafter referred to as Chocolagiftbox B.V., to any third party, to all work performed by Chocolagiftbox B.V. on behalf of any third party and to any Agreements, in the broadest sense of the word, entered into by Chocolagiftbox B.V. with any third party. (b) These Terms and Conditions shall apply both in and outside the Netherlands, irrespective of the domicile or place of business of the parties to any Agreement, irrespective of where the agreement was reached or should have been implemented. c. Any Purchasing Conditions applied by the the Buyer/Principal shall not be binding upon Chocolagiftbox B.V. if and insofar as they deviate from these Terms and Conditions of Delivery. (d) Any deviation from these Terms and Conditions, applied/allowed at any time by Chocolagiftbox B.V. to the advantage of the Buyer/Principal, shall never entitle the latter to invoke or demand such deviation later as a given. ARTICLE 2: OFFERS a. All offers and quotations are entirely free of obligation unless expressly stated otherwise. These are provided by Chocolagiftbox B.V. with the best possible knowledge and based on any information provided in the request. (b) Any specifications regarding size, capacity, performance, colour, material structure, finish or results provided by Chocolagiftbox B.V. in images, websites, catalogues, brochures, drawings or in any other way, are to be considered approximate and provided without any obligation. Chocolagiftbox B.V. shall not be held to these specifications and shall accept no liability whatsoever for any inaccuracies in this information. c. It is possible that Chocolagiftbox B.V. products have a slight smell. This smell is typical of the materials usually used to make these products. ARTICLE 3.1: ORDERS/AGREEMENTS a. An order is understood to mean: any Agreement with Chocolagiftbox B.V., irrespective of whether it undertakes to perform work or to provide personnel, materials or space, or to provide any other service in the broadest sense of the word. (b) All Agreements entered into with Chocolagiftbox B.V. shall not be binding until confirmed in writing by Chocolagiftbox B.V. or until Chocolagiftbox B.V. has commenced performance of the order. Any additions or alterations to the aforementioned Agreements shall not be binding upon Chocolagiftbox B.V. until they have been accepted and confirmed in writing by Chocolagiftbox B.V. Buyer/Principal shall be deemed to have accepted any alterations or additions to Agreements entered into with Chocolagiftbox B.V. unless Buyer/Principal has protested in writing against the said alteration(s) and/or addition(s) within 8 days after such became known or should have become known to the Buyer/Principal. Buyer/Principal shall be deemed to be aware of the aforementioned amendment/addition at the time Chocolagiftbox B.V. commences performance of the work to which the said alteration relates. Only the management or a person expressly authorised by the management may and shall be able to to enter into Agreements on behalf of Chocolagiftbox B.V. c. Unless expressly agreed otherwise, Chocolagiftbox B.V. shall at all times be entitled to have an order executed by a third party, in part or in full, in which case these Terms and Conditions shall also apply in favour of the said third party, such provided that Chocolagiftbox B.V. has authorised the party concerned in writing, retrospectively if necessary, to avail themselves of these Terms and Conditions without such authorisation giving rise to any obligations whatsoever towards Chocolagiftbox B.V. (d) Chocolagiftbox B.V. reserves the right to adjust the ordered quantities to their specified minimum quantity/packaging unit. Chocolagiftbox B.V. is entitled to charge the Buyer/Principal the price applicable for the said minimum quantity/packaging unit. Similarly, the quantities actually supplied may differ from the quantities ordered. Chocolagiftbox B.V. delivers products subject to tolerance of 10% more or less and shall be entitled to charge Buyer/Principal for the quantities actually supplied. Chocolagiftbox B.V. is not obliged to give Buyer/Principal prior notification of any such deviation. By contrast, Buyer/Principal is obliged to demonstrably notify Chocolagiftbox B.V. in writing, e.g. by email, of any deviations identified within 24 hours after receipt of the goods. Such notwithstanding the provisions of Art. 9 "right to claim". Buyer/Principal shall indemnify Chocolagiftbox B.V. against any claims made by them or any third parties related to them, should Chocolagiftbox B.V. be unable to print or otherwise modify a limited stock of packaging product due to errors occurring during the processing of the product concerned, such as printing. Chocolagiftbox B.V. shall be entitled to implement slight changes to the production, number, model, print and/or dimensions without providing prior notification without such giving rise to the right to claim referred to in Art. 9 of these Terms and Conditions. ARTICLE 3.2 DISTANCE CONTRACTS In the event of orders/agreements to which the "Legal Regulations on Distance Contracts" [wet overeenkomsten op afstand] may apply and the Buyer/Principalc claims such, Chocolagiftbox B.V. shall respect the said Regulations. This means that any provisions in these Terms and Conditions which due to their general nature may be in conflict with these Regulations in such situations, will be subordinate to the Regulations. See Book 7 Part 9.a Art. 46a of the Dutch Civil Code for the contents of these Regulations. The objective of these Regulations is to offer consumers more legal protection when entering this kind of contracts or agreements. ARTICLE 4: LIABILITY a. Subject to the provisions of Article 9 of these Terms and Conditions, Chocolagiftbox B.V. shall not be liable for any damage which is a direct and/or indirect result of the supplied goods, including any contract variations, failing to comply with the Agreement unless this is attributable to a deliberate act or omission on their part. Therefore Chocolagiftbox B.V. shall not accept any liability in the event of a disaster such as fire, water damage and external incidents such as wars or earthquakes. (b) Should Chocolagiftbox B.V. be liable for damages for any other reason with respect to the Agreement, the damages payable by Chocolagiftbox B.V. will always be limited to a maximum of the invoice amount (excluding VAT) relating to the goods and/or services concerned, such to a maximum of EUR 11,500 (eleven thousand five hundred euros). c. Any reference to these Terms and Conditions will not suspend the Buyer's/Principal's payment obligation towards Buyer/Chocolagiftbox B.V. ARTICLE 5: TIME AND PLACE OF DELIVERY a. The times of delivery stated in all offers, order confirmations and contracts are provided with the best possible knowledge and will be respected as far as possible, but they shall not be binding upon Chocolagiftbox B.V. (b) Overrunning these delivery times, for whatever reason, shall never entitle the Buyer/Principal to any compensation, termination of the Agreement or non-fulfilment of any obligation on their part arising from the Agreement concerned or from any other Agreement whether or not related to the said Agreement. c. In the event of an excessive overrun of the agreed delivery time, at the discretion of Chocolagiftbox B.V., Chocolagiftbox B.V. shall consult with Buyer/Principal. (d) Delivery shall be made Ex Works of Chocolagiftbox B.V. or any other place determined by Chocolagiftbox B.V. (e) In the event that goods sold or services offered by Chocolagiftbox B.V. are not accepted by Buyer/Principal upon delivery, they shall remain available to Buyer/Principal for three weeks. During this period the goods shall be stored at the expense of Buyer/Principal. Upon expiry of the stated period, the total amount which would have been payable in the event of purchase or fulfilment, plus costs and interest, may be claimed from Buyer/Principal, also in the event of non-delivery of the goods or services concerned. Payment shall then be deemed to have been made as compensation to Chocolagiftbox B.V. f. Should Buyer/Principal fail to fulfil or to promptly fulfil any obligation arising from this or any other Agreement related to the Order, Chocolagiftbox B.V. shall be entitled to suspend performance - without legal intervention - after issuing Buyer/Principal with a written notice of default, without Chocolagiftbox B.V. being held to any compensation. ARTICLE 6: TRANSPORT AND TRANSPORTATION RISK a. The means of transport shall be chosen by Chocolagiftbox B.V. (b) Unless expressly agreed otherwise, all goods ordered from Chocolagiftbox B.V. shall be transported at the expense of Buyer/Principal. c. The risk in all goods ordered from Chocolagiftbox B.V. shall pass to Buyer/Principal from the moment of dispatch. Also in the event of delivery carriage paid, Buyer/Principal shall be responsible for any damage suffered during transit. (d) The goods shall be delivered to the ground floor only, that is to say to beside the carrier's vehicle. If the goods are to be delivered anywhere other than the ground floor the related supplementary costs and risks shall be entirely for the account of Buyer/Principal. In the event that Buyer/Principal is not present at the time of delivery, is unable to take delivery of the goods or otherwise fails to take delivery of the goods, Chocolagiftbox B.V. shall be entitled to change the delivery to an obligation on the part of Buyer/Principal to collect the goods from an address specified by the carrier, after the carrier has informed Buyer/Principal accordingly by leaving a written notification to that effect. (e) Upon arrival/receipt of the goods, Buyer/Principal is to ascertain the condition of the goods. Should any damage to the goods or material be established, Buyer/Principal is to take any measures necessary to claim compensation from the carrier. By signing the receipt issued by or on behalf of Chocolagiftbox B.V., Buyer/Principal declares to have received the goods in good condition. ARTICLE 7: PRICES AND COSTS a. Chocolagiftbox B.V. sets a separate price or rate for each order. This price or rate is intended exclusively as the amount payable in respect of the performance delivered by Chocolagiftbox B.V., including corresponding costs. The prices quoted in the offer shall be based on the cost price factors, exchange rates, wage levels, taxes, duties, charges, freight, etc.. In the event of an increas of any of these factors, Chocolagiftbox B.V. shall be entitled to adjust the (sale) price offered accordingly. (b) The price or rate therefore does not include levies by government or other bodies, including fines, insurance premiums etc.. c. Chocolagiftbox B.V. shall be entitled to require down payments, a deposit or surety in the form of a bank guarantee). (d) Chocolagiftbox B.V. reserves the right to charge shipping costs. ARTICLE 8: TERMS OF PAYMENT a. Unless expressly agreed otherwise, payment of the invoices sent by Chocolagiftbox B.V. is to be made within 8 (eight) days of the invoice date, without deduction of any discounts and without any form or compensation. (b) The Supplier shall be entitled to charge a credit restriction surcharge of at least 2%, which is to be expressly stated as such in the invoice. This surcharge may be deducted from the invoice amount if the invoice amount is paid within 14 days of the invoice date. c. All payments are to be made, without any deduction or set-off, at the offices of Chocolagiftbox B.V. or into a bank or giro account specified by Chocolagiftbox B.V. (d) Discounts may only be granted following mutual consultation between Chocolagiftbox B.V. and Buyer/Principal. Unless otherwise agreed in writing, any such discounts will apply once only. No previous discounts can be applied for subsequent transactions. ARTICLE 9: CLAIMS a. Any claims, in respect of either the goods supplied or services provided and/or to invoice amounts, are to be submitted to Chocolagiftbox B.V. in writing by registered post, to Chocolagiftbox B.V. within eight days of receipt of the goods or services or of the invoices concerned, accurately stating the facts to which the claims relate. Buyer/Principal shall lose the right to claim in respect of any goods altered in any way by them or on their behalf. (b) Claims in respect of the provisions set out in these Terms and Conditions including those referred to in Article 6:233(a) of the Dutch Civil Code (the invalidity of one or more provisions on the ground of unreasonable burden) are also to be submitted to Chocolagiftbox B.V. in writing and by registered post within eight days of these Terms and Conditions becoming known or the time that they could reasonably have become known, accurately stating the facts to which the claims relate. The right to claim shall lapse the moment the Agreement is concluded. Buyer/Principal waives the right to later claim one or more of the provisions in these Terms and Conditions are unreasonably burdening, insofar as any provisions considered unreasonably burdening are not prescribed by legislation. c. Submitted claims that do not comply with the above cannot be accepted and Buyer/Principal will be deemed to have approved the goods supplied and/or services provided. Should Chocolagiftbox B.V. be of the opinion that a justified complaint has been submitted it shall be entitled either to pay Buyer/Principal an amount of compensation determined in mutual consultation or to make a new delivery, maintaining the existing Agreement, subject to the obligation on the part of Buyer/Principal to return the defective or incorrectly delivered goods carriage paid Chocolagiftbox B.V.; such at the discretion of Chocolagiftbox B.V. (d) Chocolagiftbox B.V. shall only be obliged to take note of any claims submitted if, at the time the said claim is submitted, the Buyer/Principal concerned has fully complied with all their obligations towards Chocolagiftbox B.V., arising from whatever agreement and of whatever nature. e. Chocolagiftbox B.V. shall refuse any return shipments that are inadequately packed or understamped. All return shipments from Buyers or Principals shall be for their own account and at their own risk. ARTICLE 10: CANCELLATION/RECISSION AND SUSPENSION a. Should Buyer/Principal be in any way in default or remain in default of their obligations in respect of previous orders supplied by or work performed by Chocolagiftbox B.V. or otherwise, Chocolagiftbox B.V. shall be entitled to suspend its obligations towards Buyer/Principal or to cancel/rescind the underlying agreements in full or in part. Such without being held liable in any whatsoever by Buyer/Principal and without prejudice to the rights of Chocolagiftbox B.V. Chocolagiftbox B.V. shall also retain this right in the event of Bankruptcy, suspension of payments, applicability of the Dutch Act on Debt Consolidation for Natural Persons (WSNP), other forms of debt guidance, liquidation of the business/business activities on the part of Buyer/Principal or, by the standards of Chocolagiftbox B.V., the risk of these circumstances. All claims of Chocolagiftbox B.V. against Buyer/Principal shall then become immediately due and payable. (b) Should Buyer/Principal wish to rescind/cancel the agreements concluded with Chocolagiftbox B.V., then Chocolagiftbox B.V. shall also be entitled to demand performance of the agreements concluded or, at the discretion of Chocolagiftbox B.V., a cancellation fee of at least 30% of the sales value shall be payable by Buyer/Principal to Chocolagiftbox B.V. c. Chocolagiftbox B.V. shall be entitled to cancel an order from Buyer/Principal and to rescind a previously concluded agreement without being held to any compensation whatsoever if for any reason whatsoever it is no longer possible to supply the products at the agreed price or within the previously agreed time of delivery. The cancellation and/or rescission referred to here shall be at the discretion of Chocolagiftbox B.V.. ARTICLE 11: COMPENSATION FOR LATE OF NON-PAYMENT If payment of the invoices sent by Chocolagiftbox B.V. has not been effected within 8 (eight) days of the invoice date, Buyer/Principal shall be deemed to be in default by operation of law and, without further notice of default, Chocolagiftbox B.V. shall be entitled to charge interest on the full amount owed by Buyer/Principal, from the due date, equivalent to the legal rate of interest on arrears with a minimum of 1.5% per month or part thereof, without prejudice to other rights on the part of Chocolagiftbox.B.V. such as the right to recovery of all collection costs incurred, including realisable judicial costs and extrajudicial collection costs, the latter of which shall be set in advance at 15% of the amount to be collected with a minimum of EUR250 (two hundred and fifty euros). ARTICLE 12: RETENTION OF TITLE a. Until such time that Buyer/Principal has made full payment to Chocolagiftbox B.V. in respect of the goods, components and/or installations supplied by and/or work performed by Chocolagiftbox B.V, Chocolatgiftbox B.V. shall retain the title of the said goods and/or materials, which shall nevertheless remain for the account and at the risk of Buyer/Principal. (b) Should Buyer/Principal fail to comply with any obligation arising from the Agreement in respect of the goods sold and/or work performed Chocolagiftbox B.V. shall be entitled, without any further notice of default, to repossess the goods or materials, in which case the Agreement shall be rescinded without judicial intervention and without prejudice to the right of Chocolagiftbox B.V. to claim compensation, either in or out of court, for any damages incurred or yet to be incurred by Chocolagiftbox B.V. including: loss, loss of profit, interest, transport costs, etc.. c. Chocolagiftbox B.V. reserves the right to actually retain any goods, tools, materials, cars, moneys, securities (financial) documents etc. belonging to Buyer/Principal under whatever title that Chocolagiftbox BV has in its custody, until Buyer/Principal has fulfilled all their financial and other obligations towards Chocalagiftbox B.V. in full. (d) In respect of transactions with a Buyer/Principal domiciled in a country in which a prolonged retention of title applies, Chocolagiftbox B.V. shall be entitled apply the prolonged retention of title applicable in that country at any chosen time. ARTICLE 13: FORCE MAJEURE a. Force Majeure relieves Chocolagiftbox B.V. from its obligations towards Buyer/Principal. Factors to be considered as constituting Force Majeur include: such events and situations that have a clearly demonstrable and immediately effective impact on the company Chocolagiftbox B.V., such as: serious disruptions to its production process, war (also outside the Netherlands), riot, epidemic, fire, traffic disturbances, strikes, lock-outs, loss or damage during transport, accident or illness of Chocolagiftbox B.V. personnel, import restrictions of other restrictions imposed by the government, etc. Chocolagiftbox B.V. shall be relieved from its obligations irrespective of whether the Force Majeure occurred within its company or elsewhere, such as suppliers, carriers, wholesalers, etc. (b) In the event that fulfilment of the Agreement is impeded on the grounds of Force Majeure Chocolagiftbox B.V. shall be entitled, without judicial intervention, either to suspend performance of the Agreement for a maximum of six months or to rescind the Agreement in part or in full, at the discretion of Chocolagiftbox B.V.. Chocolagiftbox B.V. shall notify Buyer/Principal in writing of any such decision taken. ARTICLE 14: DESIGN PROTECTION a. Chocolagiftbox B.V. expressly wishes to retain any applicable copyrights and other intellectual property rights in respect of any products created, services provided etc. for and/or on behalf of Buyer/Principal. The use or alternative use of designs and/or ideas belonging to Chocolagiftbox B.V. is strictly prohibited unless Chocolagiftbox B.V. has expressly consented such in writing and all conditions imposed by Chocolagiftbox BV have been met. (b) Should Buyer/Principal fail to comply with the provisions set out at 14a above Chocolagiftbox B.V. shall be entitled, withourt further notice of default and-or judicial intervention to impose a contractual fine of at least EUR 11,500 (eleven thousand five hundred euros) per day or part thereof that the said breach lasts. Article 15: WARRANTIES a. Chocolagiftbox B.V. shall provide a warranty solely subject to the provisions of the warranty clause supplied with the products. In such cases, the warranty shall not take effect until Chocolagiftbox B.V. has been notified by Buyer/Principal in writing and by registered post of their request to that effect. (b) In the event that Chocolagiftbox B.V. does provide a warranty but without the issue of a warranty clause, the warranty period shall be a maximum of 6 months from the delivery of the goods concerned. Once again, Chocolagiftbox B.V. must first be notified by Buyer/Principal in writing and by registered post of their request to that effect. c. The warranty covers repair or replacement of the goods supplied, such to be at the discretion of Chocolagiftbox B.V. External incidents can never lead to any mandatory warranty provision by Chocolagiftbox B.V.. (d) The goods accepted for repair shall at all times be held at Chocolagiftbox B.V. or a third party engaged for this purpose by Chocolagiftbox B.V. at the risk of Buyer/Principal. ARTICLE 16: CONSIGNMENTS ON APPROVAL Goods supplied by Chocolagiftbox B.V. may only be considered to be sent on approval for shows, exhibitions, fairs and/or other purposes specified by Chocolagiftbox B.V. solely if such is confirmed by Chocolagiftbox B.V. in writing to Buyer/Principal in advance. These General Terms and Conditions also apply to any goods sent on approval. ARTICLE 17: APPLICABLE LAW AND COMPETENT COURT a. All offers, orders and agreements to be concluded with Chocolagiftbox B.V. shall be governed by Dutch law. Chocolagiftbox B.V. shall nevertheless be free to invoke the applicable law of the country in which Buyer/Principal is domiciled or the Vienna Trade Treaty at any time. Contrary to the provisions of subparagraph b below, the dispute shall then be subject to the competent court in the jurisdiction of Buyer/Principal. Chocolagiftbox B.V. will not be required to notify Buyer/Principal of such in advance. (b) Any disputes will be submitted to the court of competent jurisdiction in the District of The Hague or to the jurisdiction of any other competent judicial authority, such to be at the discretion of Chocolagiftbox B.V.. c. Should any article or paragraph of these General Terms and Conditions become invalid or not be applied by Chocolagiftbox B.V., this shall not prejudice the applicability of the other articles. FINAL PROVISION: These Terms and Conditions were drawn up and filed by De Incassokamer B.V. on behalf of Chocolagiftbox B.V. and established subject to the applicability of its current and future General Terms and Conditions of Sale, Delivery and Payment, in compliance with the provisions of Book 6 Section 3 of the Dutch Civil Code. These General Terms and Conditions are also protected by the © copyright of “De Incassokamer B.V.” |