of Texowear B.V., with its registered office and place of business at 7821 AA Emmen, Paganelstraat 12, filed with the Chamber of Commerce for Northern Netherlands under number 08108757.
APPLICABILITY
1. These general terms and conditions apply to the sale of goods and services. Wherever the terms “seller” or “buyer” are used, they shall also be read as “contractor” or “client,” respectively.
2. All offers and sales agreements, the provision of advice, and deliveries are subject to these general terms and conditions of sale, delivery, and payment, unless the parties expressly agree otherwise in writing.
3. To the extent applicable, the term “goods” as used in these general terms and conditions shall also be understood to include: installations, equipment, parts, accessories, and tools, all in the broadest sense of the word.
4. Unless expressly agreed otherwise in writing, offers, price quotations, and proposals are always entirely non-binding.
5. The agreement is concluded as soon as the acceptance of the offer has reached the seller. Acceptance implies agreement to these general terms and conditions and a waiver of any own (purchasing) terms and conditions if and to the extent that these deviate from or conflict with these terms and conditions or applicable Dutch law.
6. If the acceptance deviates in any respect or part from the offers, the agreement is only concluded if and to the extent that the seller has expressly agreed to this deviation in writing.
7. An offer shall be deemed not to have been made if and to the extent that fulfilling this offer or acting in accordance with this agreement would result in a violation of statutory provisions, regulations, or rules. Neither the seller nor the buyer may assert any rights against the other party in this case.
8. In the case of sales from warehouse stock, the invoice may serve as written confirmation.
9. All quotations or offers are based on the information, drawings, and dimensions derived therefrom provided by the buyer at the time of the offer, as well as on measurements taken by the seller, to the extent that such measurements have been made. Designs, images, drawings, price lists, catalogs, specifications of dimensions and weights, samples, and models provided by the seller are as accurate as possible and are only binding to the extent that this is expressly confirmed. Details need not be provided. Minor deviations in execution are permissible.
10. The seller reserves the copyright and ownership of designs, images, drawings, samples, and models provided with the offer. They may not be copied or made available to third parties without the seller’s consent. They must be returned immediately upon the seller’s first request; failure to do so will result in the buyer being liable for their value, to be determined at a later date, without prejudice to other legal remedies available to the seller to enforce its rights.
11. Any amendments or cancellations of an agreement require the seller’s written consent.
12. If the buyer wishes to amend or cancel the concluded agreement, the buyer is obligated to compensate the seller for all damages and costs arising from the amendment or cancellation.
PRICES AND PAYMENTS
13. The prices stated in the offer are fixed and exclude sales tax, import and export duties, import and export taxes, transport insurance, packaging costs, customs clearance costs, consular fees, and all other possible costs that the seller has reasonably incurred to deliver the sold goods to the designated place and at the designated time. In determining the amount of these costs, the costs actually incurred, paid, and/or still to be paid by the seller shall be taken as the basis.
14. If, after the offer and acceptance but before the performance of the agreement, a change in cost-determining factors results in the cost price/ calculated price for the seller increases by more than 5%, the seller has the right to pass this increase on to the buyer, and the buyer has the choice of either accepting the increased price or regarding the offer or agreement as not made or not concluded, respectively, without any rights or obligations arising between the seller and the buyer. In the event of a change, the seller shall notify the buyer within three days of the change becoming known, and the buyer shall notify the seller of its choice within three days thereafter.
15. Unless otherwise agreed in writing, the buyer is obligated to pay the purchase price, including the costs referred to in paragraph 13, in euros, in cash upon delivery or performance, without any discount or set-off.
16. If, prior to delivery or performance, the seller has doubts regarding the buyer’s creditworthiness, the seller is authorized to terminate the agreement by simply notifying the buyer thereof or to suspend performance of the agreement until security is provided.
17. In the case referred to in paragraph 16, the seller is entitled to compensation for costs and damages, including lost profits, caused by the measures taken by the seller as referred to in paragraph 16. If the doubt is not justified, the buyer, except in cases of intent or gross negligence bordering on intent on the part of the seller, has no right to compensation for costs or damages of any kind suffered
18. If the buyer fails to meet its payment obligations on time, it shall be in default by the mere expiration of the period referred to in paragraph 15, without any demand or notice of default being required by the seller, and it shall owe the seller default interest of 1% per month on the amount due, with a partial month counting as a full month. The obligation to pay late payment interest does not affect the seller’s right to consider the (purchase) agreement dissolved 10 days after the buyer’s default, provided the seller declares in writing to the buyer that it intends to do so, without judicial intervention; in which case the buyer is liable for all damages suffered by the seller, including but not limited to loss of profit, extrajudicial and judicial costs, as well as the actual costs incurred in any proceedings, costs as referred to in 13, and costs of additional transport, all of which are fixed at 25% of the invoice amount excluding VAT.
19. In the event of non-payment or late payment by the buyer, the costs of collection shall be borne by the buyer. If these consist solely of extrajudicial costs, they are fixed at 15% of the invoice amount, with a minimum of €250, plus applicable VAT. If legal collection proceedings are initiated, the buyer shall be liable, in addition to the aforementioned extrajudicial costs, for all reasonable litigation and enforcement costs.
20. The seller is entitled to set off any claims against the buyer against any debts the seller may have or may have in the future toward the buyer.
DELIVERY AND RETENTION OF TITLE
21. The seller shall deliver the goods or perform the services at the place and time specified in the offer or agreement, in accordance with and subject to the statutory provisions, regulations, guidelines, rules, and the like. If delivery or performance at that location at the agreed time is not possible for the seller or buyer due to the buyer’s actions or as a result of force majeure, delivery or performance shall take place, if possible, elsewhere or within 14 days thereafter at the buyer’s expense. If this is not possible, the agreement shall be deemed not to have been concluded, in which case the buyer shall compensate the seller
for the damage, including lost profits, if the impossibility is caused by the buyer’s actions or is deemed to be at the buyer’s risk.
22. If the buyer refuses to accept the goods or services offered at the designated place and time, the goods shall be deemed to have been delivered and the services deemed to have been performed at the time of offer, and the buyer shall owe the price and costs referred to in paragraph 13 at that time; and the buyer is also obligated to compensate the seller for any damage and additional costs incurred as a result of the buyer’s refusal.
23. In the event of a sale with actual delivery on call, the buyer must place the call in such a way that all goods are fully called off within three months of the conclusion of the agreement, unless a different call-off period has been agreed in writing. If the buyer fails to do so, the provisions of Section 21 apply.
24. The seller is entitled to deliver the goods specified in the offer or agreement in partial shipments. In the case of partial shipments, the seller may invoice each shipment separately.
25. Upon delivery, the buyer is obligated to verify that the delivered goods are of the quantity and quality that he may reasonably expect under the agreement; failing which, the goods shall be deemed to be of such quantity and quality. The buyer must notify the seller in writing by registered mail of any discrepancies in quantity or quality immediately, but no later than 2 days after delivery.
26. In the case referred to in paragraph 21, the goods and services are deemed to be of the agreed quantity and/or quality.
27. In the event of justified complaints regarding quantity and/or quality—which the buyer must allow the seller to verify—the seller shall, unless otherwise agreed in writing, deliver new goods as soon as possible or perform the services correctly, in which case the seller shall not be liable for damages to the buyer.
28. Subject to the provisions of Article 29, ownership of and the risk for the goods shall pass to the buyer upon delivery, whereby a refusal to cooperate with the delivery as referred to in Article 22 shall be deemed delivery.
29. As long as the buyer has not paid the full purchase price, including any additional costs, the seller retains title to these goods; in such a case, the buyer is liable to the seller for any damage to or loss of the goods. If this retention of title results in the actual repossession of the goods by the seller, the buyer shall owe the seller, in addition to the actual costs incurred, 25% of the invoice amount, excluding VAT.
FORCE MAJEURE
30. If, through no fault of the seller, the seller is unable to deliver the purchased goods or perform the agreed services at the agreed time and place, without the situation described in clause 21 arising, the agreed delivery/performance period shall be extended by one month. If, during that month, the seller is still unable, through no fault of his own, to deliver the goods at the agreed location or to perform the agreed services, the agreement shall be terminated without judicial intervention, and neither party to the agreement shall be entitled to compensation of any kind, including loss of profit
GUARANTEE OF PROPER DELIVERY/PERFORMANCE
31. The seller shall do everything that may reasonably be expected of him to ensure that sound products of good quality are delivered or that the services are performed in a proper manner.
WARRANTY
32. The seller is liable for defects in the delivered goods under the following conditions and subject to the limitations set forth below. New goods delivered are warranted for the period specified in the offer, starting from the date of delivery, against any defects in workmanship, construction, or materials, provided that the Seller is notified by the Buyer within 8 days of their discovery. The seller’s warranty obligation is limited to, at the seller’s discretion, providing a replacement, repair, or supplement, without the seller being liable for any further compensation of any kind. The buyer must keep the relevant goods available for inspection by the seller. The goods or parts thereof to be supplemented, replaced, or repaired must be sent to the seller carriage paid. Goods and/or parts replaced by the seller become its property. The warranty claim lapses in the event of:
- use of the goods in a manner other than in accordance with the manufacturer’s instructions;
- handling or use in a manner other than what is considered normal for the goods;
- repair, replacement of parts, printing and/or embroidery of clothing, and similar actions performed by persons other than those designated or authorized by the seller for that purpose;
- damage caused by an accident, force majeure, or gross negligence during the performance of work by the buyer or its employees; The seller is not bound by any warranty as long as the buyer has not fully fulfilled its payment obligation.
LIABILITY
33. The buyer indemnifies the seller against all liabilities relating to designs, images, drawings, measurements, models, and the like used and/or applied by the seller at the buyer’s request, whether or not supplied to the seller by the buyer. This does not affect the intellectual, industrial, and related property rights of the seller and/or its suppliers with respect to the delivered goods.
34. All goods, including those sold carriage paid, travel at the buyer’s risk. Commitments entered into with third parties do not alter this and are deemed to have been accepted in the buyer’s interest and at the buyer’s expense.
35. Unless the buyer requests the seller in a timely manner to insure the goods during transport at the seller’s expense, the goods travel uninsured.
36. Unless insurance taken out by the seller covers the damage or the damage is actually recoverable from the seller’s supplier or another third party, the seller excludes all liability toward the buyer—except in cases of intent or gross negligence bordering on intent—to the extent that such liability would result in an obligation to pay compensation exceeding the net invoice amount. This applies to both contractual and statutory liability for damage suffered by the buyer directly or indirectly as a result of the purchase, presence, or use by the buyer or others of the purchased goods, or in any other manner whatsoever; this conditional and limited exclusion of liability applies mutatis mutandis to the provision of certain services.
37. Under the same conditional and limiting terms and conditions as referred to in 36, the buyer indemnifies the seller against claims for damages brought by third parties against the seller regarding the goods sold to the buyer or services performed for the buyer.
GOVERNING LAW
38. Agreements concluded under these general terms and conditions are governed by Dutch law, to the exclusion of the Vienna Convention on Contracts for the International Sale of Goods of April 11, 1980 (Vienna Sales Convention).
DISPUTES
39. For disputes arising directly or indirectly from an agreement concluded under these general terms and conditions, the District Court of Assen shall have exclusive jurisdiction, to the exclusion of any other courts.
40. Notwithstanding the provisions of paragraph 39, the seller reserves the right to bring an action against the buyer before the competent court of the buyer’s place of residence.
