GENERAL TERMS AND CONDITIONS OF DELIVERY - BERG TOYS BV
based in Ede, registered with the Chamber of Commerce in Arnhem under no. 09094642
Article 1 - Applicability
1.1 These General Terms and Conditions of BERG Toys B.V., hereinafter the ‘General Terms and Conditions’, apply to all offers and quotations of BERG Toys B.V., hereinafter ‘BERG’, and to all agreements between BERG and any third party, hereinafter ‘the Buyer’ which arise from this, all this insofar as BERG is the offeror, seller or contractor.
1.2 The Buyer can only rely on deviating and/or supplementary stipulations if and insofar as they have been accepted by BERG in writing. Such supplementary or deviating provisions do not affect the applicability of the other provisions of these General Terms and Conditions and apply exclusively to the agreement for which this has expressly been agreed in writing.
1.3 By accepting these General Terms and Conditions, the Buyer also agrees with the applicability of these General Terms and Conditions to all future agreements between BERG and the Buyer.
Article 2 - Offers and formation of agreements
2.1 All quotations and offers of BERG, including all orders from the Buyer, both oral and in writing, are without obligation.
2.2 All documents and information, including drawings, technical descriptions, data, models, photos, examples, dimensions or weight specifications, such as provided in catalogues, folders, brochures or suchlike or as stated on its website, are as accurate as possible but are not binding for BERG and can never be deemed an exact reflection of what BERG has on offer.
2.3 Agreements between the Buyer and BERG will be formed if and as soon as BERG has sent a written order confirmation to the Buyer, or, if this moment is earlier, if BERG has begun the performance of the order of the Buyer.
Article 3 - Prices
3.1 Unless expressly otherwise agreed in writing, all prices are exclusive of turnover tax and other levies or taxes imposed by the government. The prices are also exclusive of travel, accommodation, packaging, insurance, storage and shipping costs and the costs of unloading and loading and rendering cooperation to customs formalities.
3.2 The purchase price is the price as set out in BERG’s most recent price lists and any listed recommended retail prices. These prices are in principle determined annually and included in regular price lists, or recorded in collaboration agreements.
3.3 BERG has the right to change the prices, provided this change is notified to the Buyer at least 30 days in advance in writing. In that event, the Buyer will be obliged to pay these amended prices. In the event such a price change takes place within 2 (two) months after the agreement has been formed, the Buyer is entitled to terminate the agreement in writing provided the agreement has not yet already been performed, wholly or in part, on payment by the Buyer of all the costs incurred by BERG in connection with the agreement up to the moment of termination. Such a termination shall never lead to any liability for BERG for loss or costs of the Buyer.
Article 4 - Payment
4.1 Payments must have been received by BERG within the agreed term into BERG’s bank account stated on the invoice or, if no term has been agreed, within 30 (thirty) days after the invoice date.
4.2 BERG is at all times entitled to demand advance payment or immediate cash payment at the time of delivery, in which case the Buyer is obliged to comply with this.
4.3 The Buyer must on first demand, to which BERG is at all times entitled, provide security for the correct performance of its obligations, in a manner to be determined by BERG.
4.4 BERG is at all times entitled to invoice each part delivery as referred to in article 5.4 separately.
4.5 If the Buyer has failed to comply with its payment obligations on time, or only complied with them partially, it is deemed to be in default by operation of law, and all that is owed to BERG becomes immediately due and payable without further demand or notice of default being required, with interest of 2% per month, calculated from the invoice date whereby a part of a month is calculated as a whole month, over the amount payable by the Buyer.
4.6 All judicial and extrajudicial costs incurred by BERG to effect the collection of the amounts payable by the Buyer are for the account of the Buyer. The extrajudicial costs are set at minimum 15% of the outstanding sum with a minimum €75, without prejudice to the right of BERG to claim the actual costs if these are higher.
4.7 All claims of BERG on the Buyer, on whatever ground, shall become immediately due and payable if third parties allege to have rights in respect of the property of the Buyer, if an attachment is levied on property of the Buyer, the Buyer applies for a moratorium or for the application of the statutory debt restructuring scheme, there is a petition for the Buyer’s bankruptcy, the Buyer enters into a payment arrangement with one of its creditors, the Buyer proceeds to dissolve the company (whether or not voluntary), the company is continued in a different legal form or the registered office or actual office is transferred to a different country, the control over the company is transferred to a third party.
4.8 Each payment by the Buyer is in the first place deemed to be payment for any outstanding interest and/or costs and after full payment of such the payment is deemed to be payment for the oldest still outstanding invoice, irrespective whether or not the payment itself states otherwise.
4.9 The Buyer shall never be entitled to offset any, whether or not disputed, debt to BERG with any, whether or not disputed, debt of BERG to the Buyer, or to suspend the payment of such a debt to BERG.
4.10 If the Buyer has failed to comply with its payment obligation or failed to comply with it on time or if the Buyer complied with it only partially, BERG is entitled, at its discretion, to suspend the agreement and any other agreements between the parties or terminate any agreement with the Buyer, wholly or in part, without being liable to pay any compensation. In addition, BERG is entitled to demand compensation from the Buyer in the event the Buyer fails to comply with its obligations arising from the agreement or from any other agreement or fails to comply with such fully, properly or on time.
Article 5 - Delivery and Delivery period
5.1 Unless the parties have expressly agreed otherwise, the deliveries are ‘ex works’ at the place of business of BERG, in accordance with the most recent version of Incoterms, applicable at the time of the formation of the agreement. If the parties have agreed a different manner of delivery in writing in an individual agreement, this different manner of delivery only applies in respect of this individual agreement and not also for subsequent agreements between the same parties.
5.2 Delivery periods are by approximation only and are never a strict deadline. If the Buyer still has to comply with any obligation towards BERG, BERG is entitled to suspend its deliveries. If a delivery period is exceeded because the Buyer has not given clear delivery instructions or due to a circumstance that cannot be attributed to BERG, the delivery period will be extended by the time that the performance of the agreement will be delayed or impeded as a result.
5.3 If a delivery period is exceeded, the Buyer is never entitled to compensation of any direct or indirect loss, nor to termination of the agreement, nor to suspension to any of its own obligations under the agreement, or any other agreement.
5.4 Early or part deliveries are at all times permitted. The Buyer is obliged to accept such a delivery from BERG.
5.5 From the time of delivery, the product is for the account and at the risk of the Buyer.
Article 6 - Complaint
6.1 Complaints relating to visible defects of products delivered by BERG must be submitted to BERG in writing within 8 (eight) days after the delivery, at the risk of forfeiting all possible claims.
6.2 Complaints relating to invisible defects must be submitted to BERG in writing within 8 (eight) days after they have been discovered or reasonably should have been discovered, at the risk of forfeiting all possible claims.
6.3 Under no circumstances does any complaint as referred to in article 6.1 or 6.2 entitle the Buyer to suspend its obligations under the agreement.
6.4 If a justified complaint has been submitted relating to a product delivered by BERG and the Buyer has also made it sufficiently likely that the defect as referred to in article 6.1 and 6.2 was indeed already in existence at the time of delivery and is attributable to BERG, BERG shall, always at its own discretion, (i) replace the defective product or part of such free of charge, (ii) repair the defect or the defective part of the product, or (iii) pay the Buyer a proportional part of the purchase price of the defective products.
6.5 Products in respect of which a complaint has been submitted in accordance with article 6.1 and 6.2 cannot be returned to BERG unless BERG has given its prior express written consent for this.
6.6 All transport or shipping costs, costs of assembly and disassembly, travel and accommodation costs, hours travelled and wage costs caused by the Buyer and all other costs that cannot reasonably be charged to BERG are for the account of the Buyer.
6.7 The Buyer must have submitted complaints about the amount of the invoice to BERG in writing within the payment term at the risk of forfeiting all rights. If the payment term is longer than 30 (thirty) days, the Buyer must at the latest have complained in writing within 30 (thirty) days after the invoice date.
Article 7 - Retention of title
7.1 Without prejudice to the provisions in article 5.5, BERG retains the title to all products delivered to the Buyer until the purchase price for all these goods has been paid in full, including also interest and costs. The retention of title also applies until the Buyer has paid the claims that BERG may acquire against the Buyer due to the Buyer failing in one or more of its obligations towards BERG, such as compensation, penalties, interests and costs.
7.2 If and as long as the goods are subject to the retention of title, the Buyer is not permitted to dispose of these goods, or establish any limited right on such, other than in the ordinary course of its business. The Buyer is obliged to include a similar retention of title in its agreements with third parties in respect of these goods.
The right of the Buyer to be allowed to dispose of the goods in the ordinary course of its business lapses automatically if an attachment is levied against the Buyer or a moratorium has been applied for, the bankruptcy of the Buyer is petitioned, the Buyer has submitted a request for the application of the statutory debt restructuring scheme or the Buyer enters into a payment arrangement with one of its creditors.
7.3 The Buyer is under a duty of care in respect of the goods that are subject to the retention of title and must insure these goods properly and keep them insured against all the usual risks in the sector, including in any event house contents and trading stock insurance, covering risks against, among other things, fire, theft, explosion and water damage. The Buyer must provide BERG with a copy of the policy schedule(s) and proof of payment of premium on demand.
7.4 If the Buyer falls short in the performance of its obligations under any agreement entered into with BERG or if BERG has good grounds to fear that the Buyer will fall short in the performance of its obligations under the agreement, BERG is entitled to repossess the products delivered to the Buyer. That right exists in particular, but not exclusively, if the Buyer has applied for a moratorium, if the bankruptcy of the Buyer is petitioned, the Buyer has submitted a request for the application of the statutory debt restructuring scheme or the Buyer enters into a payment arrangement with one of its creditors. In the event BERG wishes to exercise its ownership rights as referred to in this article, the Buyer grants, should this situation arise, its unconditional and irrevocable consent to BERG, or to a third party or parties to be appointed by BERG, to enter all the locations where the goods that are the property of BERG are situated and to repossess these goods.
7.5 If third parties assert rights in respect of the goods delivered by BERG subject to the retention of title and wish to establish rights or levy an attachment on such, the Buyer must notify BERG of this within 24 hours after the Buyer has taken note of such. In that event, BERG is entitled to collect the relevant goods from the Buyer (or have this done), temporarily or permanently, to repossess them and/or store them elsewhere (or have this done).
7.6 All costs relating to the exercise of the retention of title, including costs of transport and storage, are for the account of the Buyer.
7.7 In the event BERG has exercised its retention of title, BERG is at all times entitled, but not obliged, to sell the goods to a third party and the Buyer will be credited by BERG for the market value of the goods (to be determined by BERG) or for the net sale value, which ever amount is lower, less all costs incurred by BERG for the repossession, without prejudice to the right of BERG to compensation of all the loss arising for BERG as a result of the failure by the Buyer.
Article 8 - Guarantee
8.1 BERG guarantees the soundness of the goods it has produced and delivered and on the conditions stated in the guarantee provisions delivered with the relevant goods. In addition, the following conditions apply:
8.2 Under no circumstances does the Buyer have a claim under the guarantee provision or a right of recourse towards BERG if:
- the Buyer, for whatever reason, fails to comply with one or more obligations towards BERG;
- the alleged defect cannot be viewed as a defect that has arisen during normal use of the delivered goods;
- the alleged defect can be viewed as minimum irregularities that are usual and/or unavoidable in such goods;
- the delivered goods are used in circumstances not corresponding with the circumstances for which they are intended;
- the goods have been changed, processed, assembled or maintained contrary to BERG’s instructions or have been repaired by another party than BERG, unless the Buyer can demonstrate that the work carried out has been done by a professional and competent repairer and it could not reasonably be expected from the Buyer to request prior approval or wait for assistance from BERG;
- the Buyer has made a statement on the characteristics of the goods, directly or via advertisements, which differs from the statements made by BERG;
- there is a defect that the Buyer is or should have been aware of, or a defect caused by a circumstance that occurred after the goods had been delivered to the Buyer.
8.3 In the event a defect occurs during the guarantee period, the Buyer shall notify BERG - at the risk of forfeiting all rights - immediately, yet under no circumstances later than 8 (eight) days after the defect was or reasonably should have been detected, in writing of the complaint and the nature of the defect, on submission of a fully completed guarantee form and satisfying all requirements as included in this guarantee form, and with due observance of any guarantee procedure agreed between parties.
8.4 If the Buyer has demonstrated that there is a justified reliance on the guarantee of article 8.1, BERG shall, always at its discretion, (i) replace the defective product or part thereof free of charge, (ii) repair the defect or the defective part of the product, or (iii) pay the purchase price of the defective products to the Buyer without the Buyer being entitled to compensation. All transport or shipping costs, costs of assembly and disassembly, travel and accommodation costs, hours travelled, wage costs caused by the Buyer and all other costs that cannot reasonably be charged to BERG are for the account of the Buyer. The Buyer shall in all circumstances render BERG all possible cooperation to allow BERG to repair the defect within a reasonable period without this resulting in costs for BERG.
8.5 Under no circumstances shall the Buyer be entitled to suspend its obligations under the agreement or terminate the agreement on the basis of a defect in a product delivered by BERG.
8.6 The guarantee such as set out in article 8.1 and the guarantee certificate referred to is exclusive and to the exclusion of any other guarantee, in writing or orally, expressly or implicitly, including any guarantees relating to the saleability or suitability for a particular use.
8.7 After the guarantee period as referred to in paragraph 1 of this article has expired, the Buyer no longer has any claims or rights towards BERG, on whatever basis (such as non-conformity, breach of contract or unlawful act) relating to the delivered goods.
Article 9 - Liability
9.1 The obligation to pay compensation, on whatever basis, is limited to the loss against which BERG is insured pursuant to insurance taken out by BERG or taken out on its behalf. The extent of this obligation is, however, never more than the amount that is paid out under this insurance in the relevant case (even if this amount should be nil).
9.2 If, for whatever reason, BERG would not be able to rely on the provisions in paragraph 1 of this article, the obligation to pay compensation is limited to maximum the purchase price. If the agreement consists of parts or part deliveries, this obligation is limited to the purchase price of that part or that part delivery. Under no circumstances is BERG obliged to pay trading loss, consequential loss, damage to property in its care, indirect loss or loss caused by an intentional act or wilful recklessness by auxiliary persons or non-managerial subordinates of BERG.
Article 10 - Obligations of the Buyer and Indemnification
10.1 The Buyer is obliged to take all measures and follow all directions that must be observed in the use of the product and which contribute to the service life of the product and the safety of the product and the user of the product. The Buyer is also obliged to make the user instructions as set by BERG clear and explicit to its purchasers and other third parties who use the product.
10.2 In the event the products are intended for purchasers outside the Netherlands, the Buyer is obliged to ensure that the products will be suitable for sale outside the Netherlands, in particular - but not exclusively - in relation to trade, product liability and safety regulations applicable in that country.
10.3 On demand of BERG, the Buyer is obliged to recall products that the Buyer has put on the market and which are defective within a reasonable term, such at the discretion of BERG (recall campaign). All associated costs and all resulting loss are for the account of the Buyer unless these are for the account of BERG on the basis of articles 8 and 9.
10.4 The Buyer indemnifies BERG against all claims for compensation by third parties insofar as it relates to loss that is the result of the Buyer failing to comply with the General Terms and Conditions or with other provisions of BERG, or the Buyer failing to inform third-party users (or failing to inform them sufficiently) on the use of the goods. The Buyer is also obliged to pay all loss that BERG suffers in such an event, including damage to the good name and reputation of BERG.
10.5 After the delivery period, the Buyer is obliged to take receipt of the purchased good or goods at the agreed location. The Buyer must render BERG full cooperation to allow BERG to deliver. Goods that have not been taken possession of are stored for the account and at the risk of the Buyer.
10.6 In the event of a breach of the provisions in paragraph 5 of this article and after BERG has issued the Buyer with a notice of default, the Buyer owes a penalty of €250 per day with a maximum of €25,000. This penalty can be claimed in addition to compensation pursuant to the law.
Article 11 - Termination and Suspension
11.1 If and as soon as the Buyer fails to comply with one or more of its obligations or fails to comply with such on time or properly, its bankruptcy is petitioned, the Buyer applies for a moratorium or requests the application of the statutory debt restructuring scheme, the Buyer proceeds to liquidate (whether or not voluntarily) its business, the Buyer’s business ceases trading for any other reason, an attachment is levied against part of its assets and/or the Buyer enters into a payment arrangement with one or more of its creditors, or creates the impression to be insolvent in any other way, BERG is entitled to (i) suspend its obligations towards the Buyer, for whatever reason, until the Buyer has complied with its obligations towards BERG in full; or (ii) terminate the agreement, wholly or in part, in both cases without judicial intervention, by means of a written statement and without being liable towards the Buyer for loss, costs and interests and this without prejudice to the right of BERG to claim full compensation.
11.2 The option of the Buyer to terminate the agreement between BERG and the Buyer on the basis of articles 6: 265 and 6: 267of the Dutch Civil Code is excluded.
Article 12 Force majeure
12.1 In these General Terms and Conditions, force majeure means any circumstance outside the control of BERG, even if this circumstance was already foreseeable at the time the agreement was formed, which impedes the performance of the agreement with the Buyer, wholly or partially, permanently or temporarily. This includes: transport difficulties, fire, accidents, import and export restrictions, riots, uprisings and serious breakdowns in BERG’s business such as strikes, lock-outs, blockades, excessive sickness absenteeism and the impossibility to perform the agreement as a result of failures by BERG’s suppliers or by the persons engaged or goods used by BERG for the performance of the agreement.
12.2 In the event of force majeure, the parties are entitled to suspend their obligations under the agreement. If the force majeure situation lasts longer than 3 (three) months, after those 3 (three) months both parties are entitled to unilaterally terminate the agreement, wholly or in part, by means of a written notification of this termination to the other party, without the parties being obliged to pay each other any compensation.
Article 13 - Intellectual property rights
13.1 All industrial and intellectual property rights relating to the goods produced, sold and delivered by BERG remain the property of BERG and accrue exclusively to BERG. This includes patent rights, trademark rights, copyrights, model rights, knowhow, the right to a trade name, database rights and exclusive licensing rights. The delivery of a product originating from BERG cannot be deemed to be an express or implicit licence to use, publish, reproduce, exploit or release to third parties the intellectual and industrial property rights, unless written permission from BERG has been obtained for this.
13.2 All drawings, documents, technical data, user instructions, advice and/or other information provided by BERG to the Buyer that are, or could be, the subject matter of any industrial or intellectual property right or of any comparable right as well as the industrial and intellectual property rights relating to the products remain the property of BERG and shall be returned to BERG on demand.
13.3 The Buyer shall immediately notify BERG if it establishes that a third party is breaching any industrial or intellectual property right of BERG or if a third party makes any claim towards the Buyer in connection with the intellectual and industrial property rights of BERG. If BERG so demands, the Buyer shall render all reasonable cooperation required if this could lead to a speedy cessation of the violating acts or resolution of the dispute.
Article 14 - Expiry date
14.1 Unless the parties have expressly agreed otherwise in writing, or if otherwise appears from these General Terms and Conditions, any claim against BERG lapses through the expiry of 1 (one) year from the time of delivery or 1 (one) year from the time that delivery should have taken place.
Article 15 - Conversion and Interpretation
15.1 Nullity or ineffectiveness of one of the provisions in these General Terms and Conditions does not affect the validity of the other provisions. In the event that one or more provisions are or appear to be void, voidable or ineffective, they are deemed to have been converted into provisions that are valid and which as regards content and purport most closely approach the void or ineffective provisions.
15.2 These General Terms and Conditions have been drafted in the Dutch language and have been translated into various other languages. In the event of differences in the text and/or interpretation between the different versions, the Dutch language version of the General Terms and Conditions shall always be decisive and binding.
15.3 The headings and sections in these General Terms and Conditions are for ease of reading only and cannot affect the content and meaning of the provisions in these General Terms and Conditions.
Article 16 - Transfer of rights or obligations
The Buyer cannot transfer or pledge the rights or obligations pursuant to any article in these General Terms and Conditions or the underlying agreement(s) except with the prior written permission from BERG. This clause also has effect under property law.
Article 17 - Competent Court and Applicable Law
17.1 These General Terms and Conditions and all agreements between BERG and the Buyer are governed by Dutch law, with the exception of the Dutch international private-law conflict rules.
17.2 All disputes in respect of, arising from or relating to an agreement entered into by BERG to which these General Terms and Conditions apply wholly or in part, are exclusively submitted for settlement to the competent court in Arnhem, the Netherlands.
17.3 The Vienna Sales Convention (CISG) does not apply, and neither does any other international treaty whose exclusion is permitted.