Terms and conditions
General Terms & Conditions of Sale Poppers Holding B.V., version 2.0 April 2015
These General Terms & Conditions of Sale will apply to all (sales) transactions from Poppers Holding B.V. and its subsidiary companies
Registered at the Dutch Chamber of Commerce under number 39054895
1.1. These General Terms & Conditions will apply to and are part of all quotations of Seller and all (sales) transactions concluded with Seller, with the explicit exclusion of any General Terms of Buyer, unless otherwise agreed in writing between Seller and Buyer. These Conditions shall always prevail over any (general) conditions of sale and supply of the Buyer, unless otherwise confirmed in writing by Seller.
1.2. In this Agreement the following terms shall, except where the context otherwise requires, be deemed to have the following meaning:
“Business Day” means a day (other than a Saturday, Sunday or national holiday) on which banks in the country of the Seller are ordinarily open for the transaction of normal banking business.
“Buyer” means the person who accepts a Quotation of the Seller for the sale of the Goods or whose Order for the Goods is accepted by the Seller.
“Conditions” means the terms and conditions of sale set out in this document and (unless the context otherwise requires) including any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods.
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
“Minimum Order” means a minimum number of Goods specified from time to time by the Seller in any one order.
“Order” means a quotation of Seller, accepted by Buyer, meaning an instruction to Seller to deliver the Goods to Buyer or arrange for collection by the Buyer at the premises of Seller or any other agreed location.
“Seller” means Poppers Holding B.V. or any of its subsidiary companies.
2. BASIS OF SALE
2.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with and subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such Order is made or purported to be made, by the Buyer.
2.2. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3. The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4. Any advice or recommendations given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not so confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6. Devices, drawings, models, samples, descriptions, images and such, as well as possible appendices and records will be part of the quotations of Seller. All this remains, as well as tools made in this respect by Seller, the property of Seller, must be returned on request to Seller and cannot without the explicit written approval of Seller be copied and/or are delivered to third parties. Seller reserves all possible existing intellectual and industrial property rights hereto.
3. ORDERS AND SPECIFICATIONS
3.1. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2. In case no prior written acceptance of any Order by Seller has taken place, e.g. in case of a sale directly from Seller's premises, the Order will become effective as soon as Seller has delivered the Goods of the Order (in full or partially) or if Seller sends the invoice for these Goods to Buyer at its request.
3.3. The quantity, quality and description of any for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by the Seller).
3.4. The Seller reserves the right to make any changes to the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.5. No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss, costs, damages, charges and expenses incurred by the Seller as a result of cancellation.
4. PRICE OF THE GOODS
4.1. The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price no longer valid); the price listed in the Seller’s published price list current at the date of acceptance of the Order. All prices quoted are valid for 30 days only, unless specified otherwise in the quotation, or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery of the Goods, to increase the price to reflect any increase in the cost to the Seller which is due to any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3. Any costs other than for standard packaging and transport are not included in the price of the Goods, unless specified otherwise in writing by Seller.
4.4. The price is exclusive of any assembly costs, operational costs, import-, export- and stamp duties, clearance costs, applicable Value Added Tax and/or any other legitimate levies, which will be charged additionally to Buyer if and when applicable.
5. TERMS OF PAYMENT
5.1. Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2. The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) at the time of delivery of the Goods notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer or being claimed for defects by Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request. Settlement is prohibited.
5.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1. Cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2. Appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3. Charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above Euribor rate from time to time, until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest).
6.1. Delivery of the Goods shall be made by the Seller delivering the Goods to a place of delivery agreed between the Seller and the Buyer during business days. The means of transportation will be chosen by Seller. In case of impediments or obstructions in the chosen means of transportation, Seller will not be obliged to choose other means of transportation. Seller is not liable whatsoever in case the means of transportation will be cancelled.
6.2. Any dates quoted for delivery of the Goods are estimates only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted or estimated delivery date upon giving reasonable notice to the Buyer.
6.3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated by delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by any reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.4.1. Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including, insurance) of storage; or
6.4.2. Sell the Goods at the best price readily obtainable and (after deducting all storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. RISK AND TITLE
7.1. Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1. In the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2. In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2. All Goods delivered now and in the future will remain the property of Seller until Buyer has paid all unpaid debts and claims to Seller, regardless of the grounds for the debt or claim.
7.3. Until such time the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of it’s business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4. Until such time when the Goods have become property of Buyer, the Seller shall be entitled at any time to require the Buyer to release and deliver the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so, all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. WARRANTIES AND LIABILITIES
8.1. Subject to the Conditions set out below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery, unless the manufacturer of the Goods has issued a different warranty. In the latter case the manufacturer’s warranty will prevail over the Seller’s warranty as described in this article.
8.2. The above warranty is given by the Seller subject to the following conditions:
8.2.1. The Seller shall be under no liability for any defect in the Goods arising from any drawing, design or other specification supplied by the Buyer;
8.2.2. The Seller shall be under no liability in respect of any defect arising from the failure to store the Goods in accordance with the Seller’s instructions or storing the Goods in unsatisfactory or humid conditions, nor any defects arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
8.2.3. The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.3. Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law AND THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THIS CLAUSE 8.3.
8.4. Unless specified otherwise in writing, any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 180 days from the date of delivery or where the defect or failure was not apparent on reasonable inspection within 30 days from the date of delivery to the customer of the Buyer which ever date comes first. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. Claims on delivered used Goods will not be answered and Seller is not responsible for those Goods in any way unless agreed in writing.
8.5. Under penalty of preclusion of Buyer’s rights and notwithstanding Clause 8.4, Buyer shall report to Seller in writing any complaints about the quantity, size, weight, packaging and/or damage of the delivered Goods within 5 Business Days after the date of risk transfer as defined in Clause 7.1.1 or 7.1.2.
8.6. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.7. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses, or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, it’s employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.8. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any act of God, riot, strike, lockout, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, difficulty in obtaining workmen, materials or transport or any other cause beyond the Seller’s reasonable control.
8.9. Notwithstanding the foregoing, Seller will in any case not be liable for any indirect damages of Buyer, including, without limitation, special or consequential damages, or any damages, whatsoever resulting from any default or breach under these Conditions or from the Goods delivered to Buyer, and the maximum liability of Seller for damages (whether in contract, tort or whatsoever arising, including for the avoidance of doubt, any liability for the Goods), shall in any event not exceed the purchase price of the Goods.
9. INSOLVENCY OF BUYER
9.1. Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary, when:
9.1.1. The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
9.1.2. An encumbrancer takes repossession of any of the property or assets of the Buyer, or a receiver is appointed; or
9.1.3. The Buyer ceases, or threatens to cease, to carry on business; or
9.1.4. The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.1. Buyer will procure and maintain in effect, at its own expense, sufficient liability insurance (including general liability, product liability, employer’s liability and consequential damage coverage).
11.1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2. No waiver by the Seller of any breach the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4. The Contract shall be governed by the laws of the country of Seller and any dispute between the parties shall solely be referred to a competent court of the statutory place of business of Seller, unless Seller and Buyer have agreed to settle the dispute by arbitration. The provisions of the Uniform Laws of the International Sale of Goods (C.I.S.G.) are expressly excluded.