General Terms and Conditions PROM’ES b.v., Polderweg Oost 14, 2973 AN Molenaarsgraaf, The Netherlands.
1.1 These general conditions apply to all offers and/or agreements contracted by us. In particular, these conditions also apply to agreements made by us regarding the delivery of goods to our buyer(s).
1.2 In these general terms and conditions, the term "buyer" is to be understood to mean any natural or legal person who has agreed to and has entered into a contractual relationship under a sales contract concluded with us, or wishes to enter into a different type of agreement. In particular, "buyer" also means the person whom for the order, and for whose account goods and / or services are delivered.
1.3 Any form of deviation from these terms and conditions can only be after explicitly agreed upon in writing.
1.4 If the buyer also refers to (his) general terms and conditions, the conditions of the buyer do not apply. This is only different if and insofar as the applicability of the terms and conditions of the buyer are not in conflict with our general terms and conditions, then only the provisions in our conditions apply. Any other stipulation in the terms and conditions of the buyer does not alter the foregoing.
1.5 Where these terms and conditions refer to "delivery (of goods)", this also includes the provision of services and/or activities of any nature whatsoever.
2.1 All issued quotations and/or price statements either via leaflets or websites are to be regarded as invitations to the potential buyer to make an offer. They therefore do not bind us in any way, unless explicitly and unequivocally the contrary has been stipulated in the offer itself (in writing). The order given to us is regarded an offer, which is only deemed to have been accepted by us after written confirmation from us (the so-called order confirmation).
2.2 All designs, drawings, models, samples, descriptions, illustrations and the like, as well as any appendices and/or tools made in context of any of the by us issued quotations remain property of PROM’ES B.V. They must be returned upon our request and may not be copied and/or shared with third parties without our express written consent. We reserve all existing rights for intellectual and industrial property.
2.3. Whenever a buyer performs any work or prepares for that end, with the expectation that an agreement will form or under the assumption that an agreement has been concluded, the buyer will do so at his own risk.
3. Establishment of agreements
3.1 An agreement is first established when we have accepted an order given to us in writing. Upon sending the order confirmation, we deem the agreement to have been established.
3.2 After a period of 8 days after giving the order, the buyer is bound to this order. Any form of cancellation or change during this period, can however not prevent the passing on (and therefore charging) of any costs already made in order to be able to start the production of said order.
3.3 The order confirmation sent by us to the buyer is deemed to fully and accurately reflect the contents of the agreement. The buyer is expected to agree with the contents of the order confirmation, unless the buyer notifies us, in writing, within 8 days of the date of the order confirmation.
3.4 Any additional agreements and/or commitments made by our employees or made on our behalf while done by any other persons acting as our representatives, only bind us after written confirmation by our authorized representative(s).
4. Prices and security
4.1 Prices excluding VAT. Unless specifically agreed in writing, all our prices are exclusive of packaging, shipping costs and other possible costs.
4.2 The prices stated in quotations, contracts and order confirmations are based on the cost factors applicable at the time of the establishment of the agreement, such as exchange rates, producer prices, raw material and material prices, wage and transport costs, insurance premiums, taxes, import duties and other government levies.
4.3 If, after an agreement was concluded but before the day of delivery, increases in any costs factor take place, we reserve the right to charge these costs directly to the buyer. Furthermore, we are entitled to declare the agreement dissolved (either wholly of partly) without the need for legal intervention. This right also applies to the buyer, but only if within 3 months after the conclusion of the agreement an increase of the agreed upon price (in the order confirmation) results to changes in costs. If the buyer
wishes to make use of this right, he can call for a dissolution of the agreement by sending a signed letter within 5 days after receiving the notification from PROM’ES.
5. Delivery time, transport and transport risk
5.1 The delivery times specified by us take effect on the day on which the agreement is concluded, provided that all data required for the execution of the order are in our possession. The delivery times stated by us will never be regarded as a deadline, unless expressly agreed otherwise in the individual agreement. In case of late delivery, we must therefore be given notice of default in writing. In case - contrary to the above - in the individual agreement expressly agreed a fine on exceeding the delivery
time, it is not due if the exceeding of the delivery time is the result of the cases of force majeure mentioned in article 10 of these general conditions.
5.2 Unless the order confirmation shows the contrary, the delivery of goods will take place ex warehouse, at the expense and risk of the buyers. Customs clearance is done by us, but is at the expense of the buyer.
5.3 Unless buyers themselves take care of a forwarding agent, the goods are sent by us in the way we consider favorable with our forwarding agents at the expense and risk of the buyer.
5.4 If a buyer requests delivery of goods in a manner other than usual, we may charge the buyer the associated costs.
5.5 If the delivery takes place in parts, we have the right to regard each delivery as a separate transaction.
5.6 The buyer is obliged to purchase the purchased goods within the agreed time. In the absence thereof, we are entitled - at our discretion - on the grounds of article 6:60 Dutch Civil Code to demand that the competent court will release us from our obligation to deliver the agreed goods, or without prior notice of default. payment of the purchase price of the part not taken. If the buyer does not fulfill his payment obligation, we are entitled to declare the agreement dissolved without judicial intervention.
If the buyer remains in default in accordance with the above, the goods will be deemed to have been delivered and we will store the goods at the expense and risk of the buyer, against payment of all resulting costs.
6. Complaints, returns and liability
6.1 Possible complaints, both on the delivery of goods, services rendered, on the instructions of the buyer carried out on materials supplied by the buyer and on invoice amounts, must be made in writing and registered to PROM'ES within 8 days after receipt of goods, services, operations or invoices. submitted with a precise statement of the facts to which the complaints relate. The buyer's right to complain lapses with regard to goods processed and /or processed by or on behalf of the buyer.
6.2 The buyer must at all times give PROM'ES the opportunity to examine the advertising for its correctness. Buyer is not entitled to postpone or refuse payment of the relevant invoice or of previous or later invoices on the grounds of advertising relating to a certain product or service or operation.
6.3 Manco's must immediately notify the buyer at delivery by checking on the basis of the consignment note. After signing the consignment note or delivery list by the buyer, the right to delivery or compensation still lapses.
6.4 Return shipments must be discussed in advance with PROM'ES. Only undamaged goods can be sent back after express written permission. Return shipments that are insufficiently pre-loaded or insufficiently packaged will be rejected by PROM'ES. All returns from the buyer are at his risk and expense.
6.5 PROM'ES is in no way liable for damage, loss of income or reduced revenue, and costs related to interruption, downtime and / or restarting of a company, event or activity that is the result of the incomplete, incorrect delivery or non-delivery of goods, services or operations. If the buyer proves that PROM'ES is directly and culpably responsible for the incomplete, incorrect or not on time delivery of the goods, services or operations, then the amount of this liability shall not exceed the value of the costs that PROM'ES has delivery-related goods, services provided or executed operations.
6.6 In case of purchase and direct payment via websites, seller has the right to charge an amount of € 15.00 in case of cancellation or change of order.
7.1 Only if the warranty obligations in respect of the goods delivered by us have not been assumed by third parties (such as manufacturers), the buyer can assert (warranty) claims against us. Our liability is in that case limited to defects that are a result of manufacturing and material defects.
7.2 In the case of advertising, if the merits of the complaint, the quality concerning, by us is determined and for us also liability as referred to in paragraph 1 exists, we are held exclusively to such at our choice: a. (free) repair of defects; b. delivery of replacement items or parts, after return of the defective items or parts; c. repayment of the received purchase price / crediting of the invoice sent to the buyer with dissolution without judicial intervention of the concluded agreement, all insofar as the purchase price, the invoice and the agreement relate to the delivered defective goods; d. a compensation to be paid in consultation with the buyer in a form different from that referred to above.
7.3 If third-party logos, images, etc. are used for special productions, then the responsibility lies with the customer. The customer must ensure that they can be used as such and accepts any liability of third parties in the event of a dispute.
7.4 If the buyer has carried out repairs and / or changes to the goods without prior, explicit and written permission, any guarantee obligation will lapse on our part.
7.5 Subject to any obligations on the part of the foregoing, we shall never be obliged to pay any compensation to the buyer and others, unless there is intent or fault on our part (by those who hold us liable for the legal remedies). The purchased goods will continue to be delivered within the agreed time. In particular, we are never liable for consequential loss, direct or indirect damage, however named loss of profits and downtime including damage - suffered by the client, his subordinates and by or through third parties employed by the client or third parties, by whole or partial (re)deliveries of goods, delayed or faulty delivery, or failure to deliver goods or the goods themselves.
7.6 The buyer is not entitled to return the items on which no motivated advertising exists. If this does happen without valid reasons, then all costs of return are at the expense of the buyer. In that case, we are free to store the items under third parties at the expense and risk of the buyer.
7.7 The buyer is obliged to indemnify us against all claims that third parties may have against us in connection with the execution of the agreement, insofar as the law does not prevent the claims and costs arising from these claims on behalf of the buyer come.
8. Right of ownership and security
8.1 Goods delivered by us remain our property until full payment of all that the purchaser of, connected with or arising out of the goods delivered by us owe us. If we consider this necessary, we have the right of the buyer to demand security with respect to the fulfillment of his obligations.
8.2 The buyer does not have the right to pledge the unpaid goods on a non-possessory pledge or to establish any other business or personal right on behalf of a third party.
8.3 Without prejudice to the provisions in this article above, the buyer is permitted to sell the goods to third parties, but only in the context of his normal business operations. In that case, the buyer is obliged to transfer the proceeds to us immediately or, if not sold against cash payment, to transfer the proceeds to us without delay.
8.4 If as a result of processing by the buyer property right resting on the goods delivered by us is lost, the buyer is obliged without delay for us to establish a non-possessory pledge on the business result from the working or processing.
8.5 We are entitled at all times to take the goods that are under the buyer (or third parties), but belong to us, as soon as we can reasonably assume that there is a real chance that the buyer will not fulfill his obligations. The foregoing does not affect the rights as they result from the ordinary law: in particular, we also reserve the right to appeal to the buyer for damages after taking the goods from us.
8.6 The buyer is obliged to insure the risk of fire and theft with regard to the unpaid goods and to demonstrate this insurance at our request.
9.1 Payment must be made in Euro, unless otherwise agreed, without any deduction or discount, cash on the spot where we are located or by transfer to a bank account designated by us, in both cases immediately after the delivery of the relevant goods, at least within 30 days after the invoice date, all unless expressly agreed otherwise in writing. In case of payment by bank, the day of crediting our bank is the day of payment.
9.2 If the buyer fails to (overall) payment, he will be in default without any further notice of default is required. In that case we have the right, if a sufficiently coherent as far as with the failure of the buyer, fulfilling all our obligations towards the buyer, without prejudice to our rights arising from the common law.
9.3 We are also entitled to demand cash payment for delivery of the goods or guarantee for timely payment for all deliveries still to be made. Furthermore, we will then be entitled to dissolve the agreement without legal intervention, in which case the buyer shall be obliged to return the goods delivered, or the obligation to undo the performance provided by us, without prejudice to our right to compensation. If the buyer fails to pay in time, then he forfeits us or the seller's credit insurer, without
the need for further notice from us, from the due date until the day of full payment an interest equal to the statutory interest plus 4 % per year, calculated on the unpaid amount, which interest is due immediately without further notice of default. All costs involved in the collection of invoiced amounts (including the extrajudicial collection costs) are borne by the debtor. The extrajudicial collection costs amount to at least 15% of the principal sum with a minimum of € 50, - everything excluding turnover
tax. In addition, any adverse effects of exchange loss or otherwise late payment or non-payment shall be for the account of the buyer, even though the buyer would have fulfilled his payment obligations in due time according to the provisions existing in his country, but circumstances or measures outside his control will result in the transfer have taken place in our disadvantageous way.
9.4 Payments in accordance with article 6:44 civil code first reduce the costs referred to in paragraph 3, then reduce the interest payable and finally to reduce the principal sum and the current interest.
9.5 If in the financial position of the buyer after the conclusion of the agreement, but before the delivery of the goods a considerable deterioration occurs, we are entitled to refrain in whole or in part from further execution of the agreement, or a change of the payment terms.
9.6 Seller can transfer his claims arising from all transactions to a credit insurer to his choice.
10. Force majeure
10.1 Force majeure shall be understood to mean any circumstance beyond our control, that is such that compliance with the agreement cannot reasonably be demanded of us can (non-attributable breach). Force majeure includes: war, unrest and hostilities of any kind, blockade, boycott, natural disasters, epidemics, lack of raw materials, impediment and interruption of transport facilities, failures in our company, in-and export restrictions or prohibitions, obstructions caused by measures, laws or decisions of international, national and regional (government) authorities. Our obligation to deliver if we do not, not properly or in a timely manner, we shall be entitled not to honour the agreement or the not yet executed part to regard as dissolved, or to suspend for a definite or an indefinite period of time, this at our discretion. In case of force majeure, the buyer can not appeal to us for compensation.
11. Special productions
11.1 If PROM'ES from buyer is ordered to deliver products or operations which, in accordance with the wish of the buyer, are provided with a special image or other processing, the buyer must timely provide clear instructions and reproducible material of good quality that is required for the execution of the assignment.
11.2 PROM'ES is only obliged to send a proof or sample to the buyer prior to delivery if this has been stipulated in writing by the buyer before or at the time of the assignment.
11.3 Buyer accepts in advance, even if there is a pressure test, slight deviations in product color, processing color, execution and formats that can be explained by the nature of the product or processing, or by differences between different production batches.
11.4 PROM'ES is entitled to deliver a maximum of 1% more or less than the number of products ordered by the buyer to the buyer and to charge the buyer, unless expressly agreed otherwise.
11.5 All rights of intellectual property, including but not limited to copyrights, design rights and the like that relate to or rest on the products processed by PROM'ES accrue to PROM'ES.
11.6 When the buyer orders PROM'ES to process or edit logos, names or images, whether or not owned by the buyer, this will be done at the expense and risk of the buyer.
12.1 If the buyer cancels a command or order after 8 days from the date of the order, he is liable to PROM'ES: 20% of the value of the contract or order, with a minimum of € 100.00, without prejudice to the right of PROM'ES to full damages and/or performance of the agreement.
13. Dispute resolution
All disputes of any kind related to/resulting from our agreements and our deliveries shall be tried by the competent court in the Netherlands.
In these terms and conditions shall apply:
14.1 Cooling-off period: the period within which the consumer can make use of his right of withdrawal;
14.2 Consumer: the natural person who does not act in the exercise of profession or business and enters into a distance contract with the entrepreneur;
14.3 Day: calendar day;
14.4 Extended duration transaction: a distance contract concerning a series of products and/or services, whose delivery - and/or purchase is spread over time;
14.5 Durable data carrier: any means that enables the consumer or entrepreneur to store information that is addressed to him personally in a way that enables future consultation and unaltered reproduction of the stored information;
14.6 Right of withdrawal: the possibility for the consumer to waive the distance contract within the cooling-off period;
14.7 Entrepreneur: the natural or legal person that offers products and / or services to consumers at a distance;
14.8 Distance contract: an agreement whereby, within the framework of a system organized by the entrepreneur for distance selling of products and / or services, up to and including the conclusion of the agreement only one or more techniques for distance communication are used;
14.9 Technique for distance communication: means that can be used for concluding an agreement, without the consumer and trader being in the same place at the same time;
14.10 General Terms and Conditions: these General Terms and Conditions of the entrepreneur.
15. Identity of the entrepreneur
Name entrepreneur: PROM'ES b.v.
Establishment & visiting address:
Polderweg Oost 14
2973 AN MOLENAARSGRAAF
Telephone number: +31 (0)184 642 288
Access: From Monday to Friday from 8:30 am to 5:00 pm
E-mail address: firstname.lastname@example.org
Chamber of Commerce number: 23 07 78 70
VAT identification number: NL803784946B01
16.1 These general terms and conditions apply to every offer made by the entrepreneur and to every distance contract that has been concluded between the entrepreneur and the consumer.
16.2 Before the distance contract is concluded, the text of these general terms and conditions will be made available to the consumer. If this is not reasonably possible, before the distance contract is concluded, it will be indicated that the general terms and conditions can be viewed by the entrepreneur and they will be sent free of charge as soon as possible at the request of the consumer.
16.3 If the distance contract is concluded electronically, by way of derogation from the previous paragraph and before the distance contract is concluded, the text of these general conditions can be made available to the consumer electronically in such a way that the consumer can easily store them on a durable data carrier. If this is not reasonably possible, before the distance contract is concluded, it will be indicated where the general terms and conditions can be observed electronically and that they will
be sent free of charge at the request of the consumer by electronic means or otherwise.
16.4 If one or more provisions in these general terms and conditions at any time are wholly or partially void or destroyed, then the agreement and these conditions remain intact and the stipulation in question will be replaced by a provision that the scope of the original approached as much as possible.
16.5 Situations that are not regulated in these general conditions must be assessed 'in the spirit' of these general terms and conditions.
16.6 Lack of clarity about the explanation or content of one or more provisions of our terms and conditions, must be explained 'in the spirit' of these general conditions.
17 The offer
17.1 The offer contains a complete and accurate description of the offered products and / or services. The description is sufficiently detailed to allow a proper assessment of the offer by the consumer. If the entrepreneur uses images, these are a true reflection of the offered products and / or services. Obvious mistakes or errors in the offer do not bind the entrepreneur.
17.2 The prices mentioned are incl. VAT and excl. shipping costs, unless expressly stated otherwise.
18. the agreement
18.1 The agreement will be concluded at the moment the consumer accepts the offer and comply with the corresponding conditions.
18.2 If the consumer has accepted the offer electronically, the entrepreneur will immediately confirm electronically the receipt of the acceptance of the offer.
18.3 If the agreement is concluded electronically, the entrepreneur will take appropriate technical and organizational measures to secure the electronic transfer of data and he will ensure a secure web environment. If the consumer can pay electronically, the entrepreneur will observe appropriate security measures.
19. Right of withdrawal
When delivering products:
19.1 When purchasing products, the consumer has the option to terminate the contract without giving any reason within 14 days. This cooling-off period commences on the day following receipt of the product by the consumer or a representative appointed in advance by the consumer and made known to the entrepreneur.
19.2 During the reflection period, the consumer will handle the product and packaging carefully. He will only unpack or use the product to the extent that is necessary to assess whether he wishes to keep the product. If he makes use of his right of withdrawal, he will return the product with all accessories and - if reasonably possible - in the original condition and packaging to the entrepreneur, in accordance with the reasonable and clear instructions provided by the entrepreneur.
19.3 If the customer has not made known his / her right of withdrawal after the expiry of the term mentioned in paragraph 1. the product has not been returned to the entrepreneur, the purchase is a fact.
When delivering services:
19.4 When providing services, the consumer has the option to terminate the contract without giving reasons for at least 14 days, starting on the day of entering into the agreement.
19.5 In order to make use of his right of withdrawal, the consumer will focus on the reasonable and clear instructions provided by the entrepreneur with the offer and / or at the latest on delivery.
20. Costs of withdrawal
20.1 If the consumer exercises his right of withdrawal, the costs of returning the goods are for his account. For agreements with a total amount of less than € 25.00, administration costs will be charged.
20.2 If the consumer has paid an amount, the entrepreneur will return this amount as soon as possible but no later than 30 days after the return or cancellation, after deduction of any administration costs.
21. Exclusion of right of withdrawal
21.1 The entrepreneur can exclude the right of withdrawal of the consumer, insofar as provided for in paragraph 2 of this article. The exclusion of the right of withdrawal only applies if the entrepreneur has clearly stated this in the offer, at least in time for the conclusion of the agreement.
21.2 Exclusion of the right of withdrawal is only possible for products:
a. that have been created by the entrepreneur in accordance with the specifications of the consumer;
b. that are clearly personal in nature.
21.3 Exclusion of the right of withdrawal is only possible for services: The delivery of which started with the explicit consent of the consumer before the withdrawal period
22. Prices and security
22.1 Our prices include VAT and unless expressly agreed otherwise in writing, excluding packaging, costs for transport and other costs.
22.2 The prices stated in quotations, contracts and order confirmations are based on the cost factors applicable at the time of the conclusion of the agreement, such as exchange rates, producer prices, raw material and material prices, wage and transport costs, insurance premiums, taxes, import duties and other government levies.
22.3 We reserve the right, if after the date on which the agreement was concluded, but before the day of delivery, increases in one or more of the cost factors, to charge these increases to the buyer. Furthermore, in such a case we are entitled to declare the agreement dissolved in whole or in part without the need for legal intervention. This last right also comes to the buyer, but only if we take the position within 3 months after the conclusion of the agreement that an increase in the price mentioned in the order confirmation results from changes in costs. If the buyer makes use of this right, he must call the dissolution by registered letter within 5 days after receipt of the relevant notice from us.
23. Conformity and warranty
23.1 The entrepreneur warrants that the products and / or services comply with the agreement, the specifications stated in the offer, the reasonable requirements of soundness and / or usability and the legal provisions existing on the date of the conclusion of the agreement and / or government regulations. If agreed, the entrepreneur also guarantees that the product is suitable for other than normal use.
24. Delivery and execution
24.1 The entrepreneur will take the greatest possible care when receiving and implementing orders for products and when assessing requests for the provision of services.
24.2 The place of delivery is the address that the consumer makes known to the company.
24.3 With due observance of what is stated in article 4 of these general terms and conditions, the company will execute accepted orders expeditiously but no later than 30 days, unless a longer delivery period has been agreed. If the delivery is delayed, or if an order can not or only partially be executed, the consumer will receive notification no later than 30 days after he has placed the order. In that case, the consumer has the right to terminate the contract without any costs.
24.4 In case of dissolution in accordance with the previous paragraph, the entrepreneur will refund the amount that the consumer has paid as soon as possible but no later than 30 days after termination.
24.5 If delivery of an ordered product proves to be impossible, the entrepreneur will endeavor to make a replacement article available. At the latest at the time of delivery, it will be stated in a clear and comprehensible manner that a replacement item will be delivered. For replacement items right of withdrawal can not be excluded. The costs of any return shipment are at the expense of the entrepreneur.
24.6 The risk of damage and / or loss of products rests with the consumer from the moment that the goods have been handed over to the carrier, unless expressly agreed otherwise.
25.1 Unless otherwise agreed, the amounts owed by the consumer must be paid within 7 working days after the cooling-off period referred to in article 6 paragraph. In case of an agreement to provide a service, this period after the consumer has received the confirmation of the agreement.
25.2 The consumer has the duty to report inaccuracies in provided or stated payment details to the entrepreneur without delay.
25.3 In the event of default by the consumer, the entrepreneur has the right, subject to legal restrictions, to charge the reasonable costs made known to the consumer beforehand.
26. Complaints procedure
26.1 Complaints about the performance of the agreement must be submitted fully and clearly described to the entrepreneur within 7 days after the consumer has discovered the defects.
26.2 Complaints submitted to the entrepreneur will be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeable longer processing time, the entrepreneur will respond within the period of 14 days with a notice of receipt and an indication when the consumer can expect a more detailed answer.
27. Dispute resolution
All disputes of whatever nature related to / arising from agreements entered into by us and deliveries made by us shall be settled by the competent court in the Netherlands.
Molenaarsgraaf, 10 july 2018
B. den Ouden (CEO)