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GENERAL TERMS AND CONDITIONS OF DELIVERY - BERG TOYS BV
HAVING ITS REGISTERED OFFICE IN EDE, THE NETHERLANDS, REGISTERED WITH THE CHAMBER OF COMMERCE IN ARNHEM, THE NETHERLANDS, UNDER NO. 09094642
Clause 1 - Applicability
1.1 These General Terms and Conditions of BERG Toys B.V., hereinafter the “General Terms and Conditions”, are applicable to all offers, quotations, deliveries and invoices of BERG Toys B.V., hereinafter “BERG”, to all orders from any third party, hereinafter the “Buyer”, and to all agreements between BERG and the Buyer, to all services rendered by BERG, as well as to every request to this end, regardless of whether an agreement has been concluded between BERG and the Buyer.
1.2 General terms and conditions or other conditions used by the Buyer are not applicable. The Buyer can only invoke deviating and / or additional stipulations if and insofar as these have been accepted in writing by BERG. Such additional or deviating stipulations do not affect the applicability of the remaining provisions of these General Terms and Conditions and apply exclusively to the agreement for which this has been expressly agreed in writing.
1.3 By accepting these General Terms and Conditions, the Buyer also accepts that these General Terms and Conditions will apply to all future agreements between BERG and the Buyer.
Clause 2 - Offers and formation of contracts
2.1 All quotations and offers from BERG, as well as all orders from the Buyer, both written and verbal, are without obligation and non-binding for BERG.
2.2 All documents and particulars, including drawings, technical descriptions, data, models, photos, examples and size or weight specifications, as provided in catalogues, leaflets, brochures and the like, are as accurate as possible but are not strictly binding on BERG, and are in no circumstances to be regarded as exact representations of what BERG has to offer.
2.3 Agreements between the Buyer and BERG are concluded if and as soon as BERG sends a written order confirmation to the Buyer, or, if earlier, at the moment that BERG starts to fulfil the Buyer’s order.
2.4 Every agreement concluded between BERG and the Buyer in accordance with Clause 2.3 constitutes a separate agreement between BERG and the Buyer.
2.5 Any agreement already concluded between the Buyer and BERG which differs from these General Terms and Conditions will be replaced in full by a new agreement as soon as this new agreement is concluded between both parties, unless the parties have expressly agreed otherwise in writing.
Clause 3 - Prices
3.1 Unless expressly agreed otherwise in writing, all prices are exclusive of VAT, transport and insurance costs and taxes, excise duties and other government levies.
3.2 The purchase price is as stated in BERG’s most recent price lists and any public recommended retail prices referred to therein. In principle, these prices are set on an annual basis and reproduced in periodic price lists.
3.3 BERG has the right to change the prices on condition that such changes are notified to the Buyer in writing at least 30 days in advance. In that event, the Buyer is required to pay the price so altered. In the event that such a price change takes place within 2 (two) months of the conclusion of the agreement, the Buyer has the right to terminate the agreement in writing, on condition that the agreement has not already been performed in whole or in part, subject to reimbursement by the Buyer of all costs incurred by BERG in connection with the agreement up to the moment of termination. A termination of this sort will not under any circumstances result in BERG having any liability for damage or costs incurred by the Buyer.
Clause 4 - Payment
4.1 Payments must be received by BERG in the bank account of BERG specified on the invoice, within the period agreed or, in the event that no period has been agreed, within 30 (thirty) days of the date of the invoice.
4.2 BERG is entitled to demand advance payment at all times or payment in cash at the time of delivery, in which case the Buyer is required to comply with this demand.
4.3 Upon first request, which BERG is entitled to make at all times, the Buyer is required to provide security for the correct performance of its obligations, in a manner to be specified by BERG.
4.4 BERG is authorised at all times to issue separate invoices for each partial delivery as referred to in Clause 5.4.
4.5 If the Buyer does not fulfil its payment obligations, or does not fulfil these promptly or fulfils these only partially, it will be deemed to be in default by operation of law and the amount due to BERG will be immediately due and payable without further demand or notice of default, at an interest rate of 2% per month on the amount owed by the Buyer, calculated from the invoice date, with part of a month counting as a whole month.
4.6 All judicial and extrajudicial costs incurred by BERG in order to collect the amounts owed by the Buyer will be borne to the Buyer. The extrajudicial costs will be set at at least 15% of the sum owed, with a minimum of € 75, without prejudice to BERG’s right to demand the actual costs if it transpires that these are higher.
4.7 All claims by BERG against the Buyer, for any reason whatsoever, will be immediately due and payable if third parties purport to have rights with regard to the property of the Buyer, an attachment is levied on the Buyer’s goods, it requests suspension of payments, bankruptcy of the Buyer is filed for, the Buyer enters into a payment arrangement with one of its creditors, or in another way the impression is given that it is or will become insolvent, the Buyer’s company is wound up, whether or not voluntarily, the company is continued in another legal form or the registered office or actual office is relocated to another country, control of the company transfers to a third party or the Buyer transfers the rights under this agreement to a third party.
4.8 Each payment by the Buyer will be deemed in the first instance to be payment of any interest owed and / or costs, and after full satisfaction of such, payment will be deemed to be payment of the oldest invoice still outstanding, regardless of whether something else is stated with the payment.
4.9 Under no circumstances will the Buyer be entitled to offset any debt to BERG, whether or not contested, with any debt of BERG to the Buyer, whether or not contested, or to defer payment of a debt of this sort to BERG.
4.10 If the Buyer does not fulfil its payment obligations, or does not fulfil these promptly or fulfils these only partially, BERG is entitled at its own discretion to suspend performance of the agreement and any other agreements between the parties and / or to terminate each agreement with the Buyer in whole or in part, without any obligation to pay damages to the Buyer. In addition, BERG is entitled to require damages from the Buyer in the event that the Buyer does not fulfil its obligations under the agreement or any other agreement, or does not fulfil such obligations completely, properly or promptly.
Clause 5 - Delivery and period of delivery
5.1 Unless the parties have expressly agreed otherwise in writing, deliveries are ‘ex works’, in accordance with the relevant method of delivery specified in the most recent version of the Incoterms. If the parties have agreed in writing to a different delivery method in an individual agreement, this different delivery method only applies in respect of this individual agreement, and not to subsequent agreements between the parties as well.
5.2 Periods of delivery are approximate only and do not constitute an absolute deadline under any circumstances. If the Buyer has not yet fulfilled all of its obligations to BERG, BERG is entitled to postpone delivery. If a delivery period is exceeded because the Buyer has not given clear delivery instructions, or due to circumstances which are not attributable to BERG, the delivery period will be extended accordingly by such period that the performance of the agreement is delayed or impeded.
5.3 If a delivery period is exceeded, the Buyer is not entitled under any circumstances to damages for any direct or indirect damage, or to termination of the agreement, or to postponement of any of its own obligations under the agreement or under any other agreement.
5.4 Early or partial deliveries are permitted at all times. The Buyer is required to accept a delivery of this sort from BERG. These General Terms and Conditions also apply to partial deliveries.
5.5 With effect from the moment of delivery, the Buyer bears the cost and risk of the goods.
Clause 6 - Complaints
6.1 Complaints regarding visible defects in the goods delivered by BERG must be submitted in writing to BERG within 8 (eight) days of delivery, on pain of forfeiture of all possible claims.
6.2 Complaints regarding hidden defects must be submitted in writing to BERG within 8 (eight) days of such defects reasonably being discoverable, but within 3 (three) months of delivery at the latest, on pain of forfeiture of all possible claims.
6.3 Under no circumstances will any complaint referred to in Clause 6.1 or 6.2 give the Buyer the right to suspend its obligations under the agreement.
6.4 If, in the opinion of BERG, a valid complaint has been made regarding goods delivered by BERG, and the Buyer has been able to supply sufficient proof in BERG’s opinion that a defect as referred to in Clause 6.1. and 6.2 indeed existed at the time of delivery, BERG will, at its own discretion, (i) replace the defective goods or a part of these free of charge, (ii) repair the defect or the defective part of the goods, or (iii) reimburse the Buyer for the purchase price of the defective goods, without the Buyer being entitled to damages.
6.5 Goods that are subject to complaint in accordance with Clause 6.1 and 6.2 cannot be returned to BERG, unless BERG has given express advance permission in writing to this effect.
6.6 Costs that are higher than the normal costs of repair or replacement of the goods will be borne by the Buyer. The same applies to transport costs, travel costs and wage costs occasioned by the Buyer and all other costs that cannot reasonably be charged to BERG.
Clause 7 - Retention of Title
7.1 Without prejudice to the provisions of Clause 5.5, BERG retains title of all goods delivered to the Buyer until the purchase price for all of these goods has been paid in full, also including interest and costs. Retention of title also applies to claims that BERG may come to have against the Buyer on account of failure by the Buyer to meet one or more of its obligations to BERG.
7.2 If and for as long the goods are encumbered by retention of title, the Buyer is not permitted to sell these goods or to establish any limited right to the same other than in the ordinary course of its business. The Buyer is required to include a comparable retention of title in its agreements with third parties regarding the goods.
The Buyer’s right to sell the goods in the normal course of its business will lapse automatically if an attachment is levied against the Buyer or suspension of payments is requested, bankruptcy of the Buyer is filed for or the Buyer enters into a payment arrangement with one of its creditors.
7.3 The Buyer has a duty of care with regard to the goods falling under the retention of title and must insure these and maintain such insurance against all customary risks in the sector, including in any event contents insurance and trading stock insurance covering risks including but not limited to fire, theft, explosion and water damage.
7.4 If the Buyer fails to fulfil its obligations under any agreement concluded with BERG, or if BERG has good cause to fear that the Buyer will fail to fulfil its duties under the agreement, BERG is authorised to repossess the products delivered to the Buyer. Such right shall specifically, but not solely, exist if the Buyer has applied for suspension of payments, its bankruptcy has been filed for or it enters into a payment arrangement with one or more of its creditors. In the event that BERG wishes to exercise its ownership rights as referred to in this Clause, the Buyer hereby authorises, now and in the future, unconditionally and irrevocably, BERG or a third party or third parties designated by BERG, to enter all of the locations where the goods that belong to BERG are located and to repossess them.
7.5 If third parties purport to have rights with regard to the goods delivered by BERG falling under the retention of title, wish to establish rights regarding such goods or wish to levy an attachment on them, the Buyer must inform BERG accordingly within 24 hours of becoming aware of this. In that event, BERG is entitled to temporarily or permanently remove the goods concerned or have them removed from the Buyer, to repossess them and / or to store them or have them stored elsewhere.
7.6 All costs relating to exercise of the retention of title, including the costs of transport and storage, will be borne by the Buyer.
7.7 In the event that Berg has exercised its retention of title, BERG is at all times entitled, though not required, to sell the goods to a third party, and the Buyer will be credited by BERG with the market value of the goods (such value to be determined by BERG), or the net sale value, whichever value is lower, reduced by all costs incurred in the repossession, without prejudice to BERG’s right to damages for the damage incurred by it as a result of the Buyer’s failure.
Clause 8 - Guarantee
8.1 BERG warrants the satisfactory quality of the goods delivered and manufactured by it for the period and under the conditions referred to in the certificate of guarantee delivered with the relevant goods.
8.2 Under no circumstances will the Buyer have a claim against BERG under the guarantee provision or a right of recourse in the event that:
- the Buyer does not fulfil one or more of its obligations to BERG on any grounds whatsoever;
- the alleged defect cannot be regarded as a defect that arose during the normal use of the goods delivered;
- the alleged defect can be regarded as consisting of minimal irregularities that are usual and / or inevitable in respect of goods of this type;
- the goods delivered are used in circumstances that do not correspond with the circumstances for which they are intended;
- contrary to BERG’s instructions, the goods are changed, processed, assembled or maintained or are repaired by a party other than BERG, unless the Buyer can show that the work was performed by a professional and suitably qualified repairer and the Buyer could not reasonably have been expected to request BERG’s consent in advance or to wait for assistance from BERG;
- the Buyer has made a statement regarding the properties of the goods, directly or via advertising, that differs from the statements made by BERG;
- the Buyer knew or should have known about the defect, or the defect was caused by circumstances occurring after the goods were delivered to the Buyer.
8.3 In the event that a defect arises during the guarantee period, the Buyer must notify BERG in writing immediately or in any event not later than 30 (days) of the moment when the defect could reasonably have been discovered. Such notification should state the complaint and the nature of the defect and should include submission of a fully completed guarantee form satisfying all requirements set out in that guarantee form, and with due regard being paid to any guarantee procedure agreed between the parties. In all cases, the Buyer’s right to invoke the guarantee will lapse on expiry of the 30 (thirty) day period referred to above.
8.4 If, in BERG’s opinion, the guarantee at Clause 8.1 is validly invoked, BERG will at its own discretion (i) replace the defective goods or a part of these free of charge charge, (ii) repair the defect or the defective part of the goods, or (iii) reimburse the Buyer for the purchase price of the defective goods, without the Buyer being entitled to damages. Costs that are higher than the normal costs of repair or replacement of the goods will be borne by the Buyer. The same applies to transport costs, travel costs and wage costs occasioned by the Buyer and all other costs that cannot reasonably be charged to BERG. The Buyer will lend its full cooperation to BERG in all circumstances in order to enable BERG to repair the defect within a reasonable period, without BERG incurring costs in respect of this.
8.5 Under no circumstances will a defect in goods delivered by BERG entitle the Buyer to postpone its obligations under the agreement or to terminate the agreement.
8.6 The guarantee as described at Clause 8.1 and the guarantee certificate referred to therein is exclusive and excludes all other guarantees, written or verbal, express or implied, including any guarantees concerning the saleability or suitability for a particular purpose.
Clause 9 - Liability
9.1 BERG is not liable for unsatisfactory quality of goods delivered by it or for direct damage resulting from the unsatisfactory quality of goods delivered by BERG or for direct damage related to the performance of the agreement, except where such failure or damage is covered by the guarantee provisions as referred to at Clause 8.1, unless the damage is caused by intent or wilful recklessness by BERG’s Management Board or its company management employees. Nor is BERG liable for damage that can be attributed to acts or omissions of the Buyer or a third party engaged by the Buyer.
9.2 Under no circumstances is BERG liable for loss of profits, consequential damage and / or indirect damage.
9.3 Without prejudice to the provisions above, BERG’s liability is limited in all cases to the original purchase price of the goods, or to the amount covered by BERG’s liability insurance and paid out in the relevant case.
9.4 Upon BERG’s first request, the Buyer is required to recall goods that the Buyer has placed on the market and which prove to be of unsatisfactory quality, within a reasonable period, such to be determined at BERG’s discretion. All associated costs and all damage resulting from this are / is to be borne by the Buyer, unless these / this should be borne by BERG pursuant to Clauses 8 and 9.
Clause 10 - Obligations of the Buyer and Indemnity
10.1 The Buyer is required to take and / or follow all measures and instructions that should be observed regarding use of the goods and that contribute to the durability of the goods and the safety of the goods and the user of the goods. The Buyer is also required to clearly and explicitly communicate the instructions for use set by BERG to its customers and other third parties who make use of the goods.
10.2 In the event that the goods are intended for customers outside the Netherlands, the Buyer is required to ensure that the goods will be suitable for sale outside the Netherlands, having particular - but not exclusive - regard to the regulations applicable in that country in respect of trade, product liability and safety.
10.3 The Buyer indemnifies BERG in respect of all third party claims for damages to the extent that this concerns damage that is a consequence of non-compliance by the Buyer with BERG’s General Terms and Conditions or other provisions of BERG, or the Buyer not informing or not sufficiently informing third party users regarding use of the goods. The Buyer is also required to compensate all damage suffered by BERG in this sort of situation, including damage to BERG’s good name and reputation.
Clause 11 - Termination and Suspension
11.1 If and as soon as the Buyer fails to fulfil one or more of its obligations, or fails to do so promptly or properly, its bankruptcy is filed for, the Buyer applies for suspension of payments, the Buyer’s company goes into liquidation (whether or not voluntarily), it otherwise ceases business operations, an attachment is levied on part of its assets and / or it enters into a payment arrangement with one or more of its creditors, or it gives the impression that it is insolvent in another way, BERG is entitled to (i) suspend is obligations to the Buyer, on any grounds whatsoever, until the Buyer has fully met its obligations to BERG, or (ii) to terminate the agreement in whole or in part, in both cases without judicial intervention being required, by means of a written statement and without being in any way liable for this to the Buyer in respect of damage, costs and interest, and such notwithstanding BERG’s right to claim full damages.
11.2 The possibility of the Buyer terminating the agreement between BERG and the Buyer pursuant to Book 6, Articles 265 and 267 of the Dutch Civil Code is excluded.
Clause 12 - Force Majeure
12.1 In these General Terms and Conditions, force majeure will be understood to mean any circumstances beyond BERG’s control, even if such circumstances could have been foreseen at the time the agreement was concluded, that prevent the agreement with the Buyer from being performed in whole or in part, on a permanent or temporary basis. This also includes: transportation difficulties, fire, accidents, import and export restrictions, riots, revolt, and serious disturbances in BERG’s company, such as strike, lockout, picketing, excessive absenteeism due to illness, as well as the impossibility of performing the agreement as a result of a failure by BERG’s suppliers or the persons engaged or goods used by BERG in the performance of the agreement.
12.2 In the event of force majeure, the parties will be entitled to suspend their obligations under the agreement. If the situation giving rise to force majeure lasts for more than 3 (three) months, either party will be entitled after such 3 (three) months to unilaterally terminate the agreement in whole or in part by means of a written notification of such termination to the other party, without the parties being obliged to pay any damages to each other.
Clause 13 - Intellectual Property Rights
13.1 All industrial and intellectual property rights with regard to the goods produced, sold and delivered by BERG will remain the property of BERG and will accrue exclusively to BERG. Such rights include patent rights, trademark rights, copyrights, design rights, know-how, the right to a trade name, database rights, and exclusive licensing rights. The delivery of goods originating from BERG cannot be considered as an explicit or implicit licence to use, publish, reproduce or exploit the intellectual and industrial property rights, or release them to third parties, unless written permission has been obtained to this effect from BERG.
13.2 Any drawings, documents, technical details, instructions for use, recommendations and/or other information provided by BERG to the Buyer, which are or may be subject to any industrial or intellectual property right or any similar right, as well as the industrial and intellectual property rights with regard to the products will remain the property of BERG and will be returned to BERG upon first request.
13.3 The Buyer must notify BERG immediately if it ascertains that a third party is infringing any of BERG’s industrial or intellectual property rights or if a third party asserts any claim against the Buyer in connection with BERG’s intellectual and industrial property rights. If BERG so requires, the Buyer must lend any assistance as may reasonably be required to bring the infringing acts or the dispute to an end as quickly as possible.
Clause 14 - Expiry period
14.1 Unless the parties have expressly agreed otherwise in writing, or the General Terms and Conditions demonstrate otherwise, any claim against BERG will lapse in any event upon the expiry of 1 (one) year from the moment of delivery or 1 (one) year from the moment that delivery should have taken place.
Clause 15 - Conversion and Interpretation
15.1 The nullity or non-binding nature of any of the provisions of these General Terms and Conditions does not affect the validity of any other provisions. If it appears that one or more of the provisions is / are invalid, voidable or non-binding, such provision(s) will be deemed to have been converted into provisions that are valid and that approximate for the most part the content and purport of the provisions that proved to be invalid or non-binding.
15.2 The General Terms and Conditions have been drafted in Dutch and translated into various languages. In the event of differences in text and / or interpretation between those different versions, the Dutch version of the General Terms and Conditions will always be final and binding.
15.3 The titles and chapters in these General Terms and Conditions are provided solely for the sake of convenience and have no effect on the content and meaning of the General Terms and Conditions.
Clause 16 - Competent Court and Applicable Law
16.1 All agreements between BERG and the Buyer and these General Terms and Conditions are governed by Dutch law, with the exception of Dutch Private International Law rules of conflict of laws.
16.2 All disputes pertaining to or arising from or connected with an agreement concluded by BERG to which these General Terms and Conditions apply in whole or in part will be exclusively adjudicated by the competent court in Arnhem, the Netherlands.
16.3 The Vienna Sales Convention (C.I.S.G.) does not apply, nor do any other international regulations the exclusion of which is permitted.