general terms and conditions • pavo sales b.v.
article 1 – definitions
The Seller: Pavo Sales B.V., the user of these General Terms and Conditions;
The Buyer: the Seller’s counterparty, the customer;
The Agreement: the agreement between the Seller and the Buyer.
article 2 – general
2.1 These General Terms and Conditions will apply to every offer and agreement between the Seller and the Buyer, to the extent that these Terms and Conditions have not expressly been deviated from by the parties in writing.
2.2 The current Terms and Conditions will also apply to all agreements with the Seller for the performance of which the Seller uses the services of third parties.
2.3 The applicability of the Buyer’s general terms and conditions is hereby explicitly excluded, unless the parties have agreed otherwise in writing.
2.4 In the event that the Seller concludes agreements with the Buyer more than once, the present General Terms and Conditions will apply to all subsequent agreements, irrespective of whether or not same have been explicitly declared applicable.
2.5 In the event that one or more provisions of these General Terms and Conditions are null and void or are nullified, the remaining provisions of these General Terms and Conditions will continue to apply.
article 3 – offers/orders/prices
3.1 All offers, of whatever form, will be free of obligation, unless a term for acceptance is stated in the offer.
3.2 In the event that a natural person concludes an agreement on behalf or for the account of another natural person, he/she will be deemed to declare – by signing the order form/order –that he/she is authorised to do so. This person, in addition to the other natural person, will be jointly and severally liable for all obligations ensuing from the Agreement.
3.3 Agreements to which the Seller is a party will not be deemed to have been concluded until the Seller has accepted in writing an order placed by the Buyer or until the actual delivery ex Seller’s warehouse of the sold goods has been effected by the Seller to the Buyer.
3.4 In the event of an oral Agreement, the invoice will be deemed to contain a correct and complete representation of the Agreement, unless a complaint is lodged within 30 days of the invoice date.
3.5 The prices stated in the offers/catalogues/price lists will be stated on the basis of delivery ex Seller’s warehouse, in euros, and exclusive of Dutch VAT, government levies, shipping costs, freight charges, export levies, insurance costs, loading costs, packaging costs and handling expenses, unless the parties have explicitly agreed on provisions to the contrary.
3.6 Discounts may only be agreed upon in writing.
3.7 The Seller may pass on any price rises after two months, in the event that, between the time of the offer/acceptance and the delivery, a VAT increase or another statutory or cost-price increase of more than 5% has occurred.
3.8 The Seller will be entitled to adjust its prices each year, at least correcting same for inflation.
3.9 The Seller will be entitled to charge the costs of sustainable packaging materials separately. These costs will be credited by the Seller as soon as the packaging materials have been returned undamaged by the Buyer.
3.10 The Seller may refuse an order or part of an order or attach conditions to an order without stating its reasons.
article 4 – delivery
4.1 Delivery will be effected carriage paid to the Buyer’s address, unless the parties agree otherwise. Delivery will always be effected at the Buyer’s delivery address as most recently communicated to the Seller by the Buyer.
4.2 In the event of deliveries or partial deliveries of goods with a value lower than EUR 250, the Buyer will be charged the shipping costs, unless the parties have agreed on provisions to the contrary.
4.3 The Seller will be entitled to charge the Buyer an advance. After payment of the advance has been effected, delivery will be made to the Buyer, unless the parties have agreed otherwise.
4.4 The Buyer will be obliged to take delivery of the goods at the time that the Seller delivers same to it or has same delivered to it by third parties, or at the time at which the goods are made available to it pursuant to the Agreement.
4.5 In the event that the Buyer refuses to take delivery or fails to provide information or instructions necessary to effect the delivery, the Seller will be entitled to store the goods at the Buyer’s expense and risk. In the event that the Buyer does not take delivery of the goods within two months, the Seller will be entitled to sell the goods to another party. If it is unable to do so, the Seller will be entitled to destroy the goods. The damage incurred by the Seller by selling the goods to another party or by destroying the goods will be borne by the Buyer.
4.6 In the event that delivery is effected C.O.D. (Cash on Delivery), the Seller will charge the Buyer C.O.D. charges.
4.7 In the event that the Seller has stated a delivery period, same must be deemed to be an indication. A stated delivery time may therefore never be deemed to be a firm deadline. In the event that a term is exceeded, the Buyer must give the Seller written notice of default and grant it a reasonable period of time to comply as yet.
4.8 In the event that the Seller requires information from the Buyer within the context of the agreement’s performance, the delivery period will commence after the Buyer has made such information available to the Seller.
4.9 The Seller will be entitled to deliver the goods in parts. The Seller will be entitled to invoice partial deliveries separately.
article 5 – models/illustrations
5.1 The models, illustrations, figures, measurements, weights or descriptions included in offers/advertisements/price lists must be deemed to be a mere indication.
5.2 In the event that the Buyer has been shown a sample or an illustration, the parties must assume that such has been shown as an indication only, unless it has been explicitly agreed that the good to be delivered will be completely identical.
article 6 – inspections, complaints
6.1 The Buyer will be obliged to inspect the delivered goods , or have others do so, at the time of delivery or transfer. In doing so, the Buyer must inspect whether the quality and quantity of the goods delivered are in accordance with that which was agreed upon. Any visible defects and deviations must be stated on the consignment note/packing list and reported by telephone within 24 hours, in default of which the goods delivered will be deemed to be sound.
6.2 Any shortfalls must be reported to the Seller in writing within eight days of delivery.
6.3 Any complaints regarding the invoice must be submitted in writing within 30 days of the invoice date.
6.4 After the end of the period of time in which a complaint may be lodged, the Buyer will be deemed to have approved the goods delivered or the invoice, as the case may be.
6.5 In the event that a timely complaint is submitted, the Buyer will remain obliged to take delivery of and pay for the purchased goods. In the event that the Buyer wishes to return defective goods, this may only be effected following written permission from the Seller. Return shipments must be effected carriage paid, undamaged and in the original packaging by means of a return form.
6.6 The following situations will under no circumstances justify the lodging of a complaint:
• deviations in colour, weight and measurements of less than 10%;
• any typesetting, printer’s or typographical errors in the catalogue, offer or price list; or
• problems with colour fastness.
6.7 In the event that a complaint is well-founded, the Seller will replace the delivered good, unless this has become demonstrably pointless to the Buyer by that time. If this is the case, the Buyer must let this be known by means of a written communication. The Seller will in all events only be liable within the limits of the provisions laid down in the Article ‘Liability’.
article 7 – payment
7.1 Payment must be effected in cash by private customers, or in advance pursuant to an advance invoice, or, if the parties have so agreed, within 30 days of the invoice date in a manner to be indicated by the Seller in euros, unless the parties have agreed otherwise. Objections to the amounts stated in invoices will not suspend the payment obligation.
7.2 In the event that the Buyer fails to pay within the period of time agreed upon, the Buyer will be in default by operation of law. The Buyer will then owe 15% in interest per month or part of a month, unless the statutory interest or the statutory commercial interest is higher, in which case the highest interest will apply. The interest with respect to the exigible amount will be calculated from the time that the Buyer is in default until the time of full payment.
7.3 In the event that the Buyer is wound up, is declared bankrupt or files for bankruptcy, is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], is placed under guardianship, dies, or the Buyer’s enterprise is transferred or discontinued, attachment is levied against the Buyer or the Buyer is granted suspension of payments, provisional or otherwise, the Seller’s claims vis-à-vis the Buyer will become exigible forthwith.
7.4 The Seller will be entitled, if so agreed, to charge the Buyer a 2% surcharge on late payments, which will not be payable if payment is effected within eight days of the invoice date.
7.5 Payment must be effected to the Seller, unless the Seller has transferred its claim vis-à-vis the Buyer to a third party or has pledged same to a third party. In the event that this is the case, the Seller shall inform the Buyer of the fact that it will receive discharge of its payment obligation if it effects payment to that third party.
7.6 Payments will first be used to cover the costs, then to cover any interest due and finally to cover the principal sum and the accrued interest.
article 8 – collection costs
8.1 In the event that the Buyer is in breach of contract or in default of performing its obligations in good time, all reasonable costs incurred in obtaining extra-judicial payment will be borne by the Buyer. The collection costs will be calculated in accordance with the collection rate recommended by the Dutch Bar Association [Nederlandse Orde van Advocaten] in collection cases, subject to a minimum of EUR 350.
8.2 In the event that the Seller has incurred higher costs which were reasonably necessary, such costs will also qualify for reimbursement. Any reasonable court costs and enforcement costs will also be borne by the Buyer.
article 9 – retention of title
9.1 All goods delivered by the Seller will remain the Seller’s property until the Buyer has fulfilled all its obligations ensuing from the Agreements concluded with the Seller.
9.2 The Buyer will not be entitled to pledge or lease the goods covered by the retention of title or to sell such on to customers outside the Benelux or to encumber such in any other manner, unless the parties have agreed on provisions to the contrary.
9.3 In the event that third parties levy attachment on the supplied goods covered by the retention of title or wish to create or enforce rights with respect to same, the Buyer will be obliged to inform the Seller thereof as soon as possible.
9.4 The Buyer must insure the goods covered by the retention of title at new-for-old value. Any damages paid by the insurer will replace the aforementioned goods and will accrue to the Seller.
9.5 Any goods supplied by the Seller that are covered by the retention of title pursuant to paragraph 1 of this Article may only be sold on within the context of normal business operations and may never be used as a means of payment.
9.6 Should Seller wish to exercise its rights of retention of title as laid down in this Article, the Buyer hereby grants unconditional and irrevocable permission to the Seller or any third parties to be designated by the Seller to enter those places where the Seller’s property is located and to recover those goods.
article 10 – suspension and dissolution
10.1 The Seller will be entitled to suspend performance of its obligations or to dissolve the agreement in the following events:
• in the event that the Buyer fails to perform the obligations arising from the agreement or fails to perform them in good time or in full;
• in the event of circumstances of which the Seller has learned following the agreement’s conclusion that provide good reason for fearing that the Buyer will not perform its obligations, or will not perform such in good time or in full; in the event that there is good reason to fear that the Buyer will only perform its obligations in part or will not perform such properly, suspension will only be permitted to the extent that such is justified by the relevant failure; and
• in the event that the Buyer was requested to provide security upon the agreement’s conclusion for the performance of its obligations arising from same agreement and such security has not been provided or is insufficient. As soon as security has been provided, the right to suspend performance will lapse, unless the performance has been unreasonably delayed as a result.
10.2 In addition, the Seller will be entitled to dissolve the agreement or have it dissolved if circumstances arise of such a nature that performance of the agreement is impossible or can no longer be required pursuant to standards of fairness and reasonableness, or if any other circumstances arise of such a nature that continued unamended maintenance of the agreement can no longer reasonably be expected.
10.3 In the event that the Agreement is dissolved, the Seller’s claims vis-à-vis the Buyer will become immediately due and payable. In the event that the Seller suspends performance of its obligations, it will retain its claim ensuing from the law and the Agreement.
10.4 The Seller will at all times retain the right to claim damages.
article 11 – cancellation
11.1 In the event that the Buyer wishes to cancel an agreement after same has been concluded with the User and before the Seller has effected delivery to the Buyer, the Buyer will be charged 10% of the order price agreed upon, including Dutch VAT, in cancellation costs, without prejudice to the Seller’s right to full damages, including loss of profit.
11.2 Notice of cancellation must be given in writing.
11.3 Orders for goods purchased especially for the Buyer cannot be cancelled.
11.4 In the event that the Buyer has already paid the Seller the order price, the Buyer will be reimbursed the order price less 10% and the freight charges in the event of cancellation.
article 12 – warranty
12.1 The goods supplied by the Seller will be in accordance with the requirements and specifications set by Dutch law.
12.2 This warranty will be limited to:
• manufacturing defects and will therefore not include any damage resulting from wear and tear, improper, negligent or inexpert use or faulty or improper processing, handling, maintenance or storage;
• deliveries to buyers within the EU;
• replacement of the good; and
• eight days after delivery, unless provisions to the contrary have been agreed.
12.3 This warranty will lapse:
• in the event of adaptations of, alterations to or changes to the delivered good by a Buyer or a third party; or
• in the event of use for a purpose other than that indicated.
12.4 This warranty will in all cases be limited to the manufacturer’s warranty.
12.5 Goods supplied at a reduced price will not be covered by the warranty.
12.6 As long as the Buyer fails to perform its obligations arising from the Agreements concluded between the parties, it cannot invoke this warranty provision.
article 13 – liability
13.1 In the event that the Seller is liable for direct damage, that liability will be limited to the amount paid out by its insurer, or in any event to the invoice amount, or in any event to that part of the invoice to which the liability pertains.
13.2 The Seller will under no circumstances be liable for indirect damage, including consequential damage, loss of turnover and profit, loss of savings and any damage due to an interruption in business operations.
13.3 The Seller will under no circumstances be liable for damage resulting from materials on or in the good that have been declared unfit because the environmental legislation has changed since the Agreement’s conclusion.
13.4 The Seller will under no circumstances be liable for any deterioration of the good due to improper storage, processing, use or maintenance by the Buyer or a third party.
13.5 The Buyer shall indemnify the Seller against any claims of third parties that may incur damage in connection with the performance of the agreement and which is attributable to the Buyer.
13.6 The Seller will under no circumstances be liable for damage ensuing from incorrect use of the good, from use that is not in accordance with the directions or from use for a purpose other than that for which the good is intended.
13.7 The Seller will under no circumstances be liable for damage ensuing from any advice given.
Advice will always be given on the basis of the facts and circumstances known to the Seller and of mutual consultations, in which respect the Seller will always use the Buyer’s intention as a guideline and starting point.
13.8 The Buyer must ascertain itself in advance whether the purchased good is suitable for the purpose for which it intends to use same. Should it emerge in retrospect that the purchased good is not suitable for its intended use, then the Seller cannot be held liable for any ensuing damage.
13.9 In the event that the Seller approves a return shipment, the Seller will be entitled to charge the Buyer a handling fee amounting to 15% of the invoice amount.
13.10 The limitations of liability with respect to direct damage laid down in these Terms and Conditions will not apply in the event that the damage is attributable to an intentional act or omission or gross negligence on the part of the Seller or its employees.
article 14 – passing of risk/transport
14.1 The risk with respect to the loss of or damage to the goods that are the subject of the agreement will pass to the Buyer at the point in time at which same goods are legally and/or factually delivered to the Buyer and therefore come under the Buyer’s control or under the control of a third party designated by the Buyer.
14.2 In the event that the Seller is to provide for the transport/shipment of the goods that are the subject of the agreement, this will be fully at the Buyer’s expense and risk, unless the parties have agreed otherwise. The Seller will determine the means of transport.
article 15 – force majeure
15.1 Either party will not be obliged to fulfil any obligation if it is prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on its part, nor be for its account pursuant to the law, a juristic act or generally prevailing opinion.
15.2 In these General Terms and Conditions, the term ‘force majeure’ must be understood to mean, in addition to its meaning according to the law and in case law, all external causes, foreseen or unforeseen, which the Seller cannot influence, but as a result of which the Seller is unable to perform its obligations. This will include strikes at the Seller’s company, transport strikes, traffic congestion, tailbacks, car trouble, theft, fire, export impediments, power failures and delays in the supply of goods by suppliers.
15.3 The Seller will also be entitled to invoke force majeure if the circumstance preventing performance or further performance arises after the Seller should have performed its obligations.
15.4 The parties may suspend the obligations ensuing from the Agreement during the period that the situation of force majeure continues. In the event that this period continues for more than two months, either party will be entitled to dissolve the agreement without being obliged to pay damages to the other party.
15.5 To the extent that the Seller has partly performed its obligations arising from the agreement or is able to partly perform same at the time that the situation of force majeure first occurs, and that part performed or to be performed has independent value, the Seller will be entitled to invoice the part performed or to be performed separately. The Buyer will be obliged to pay that invoice as if it pertained to a separate Agreement.
article 16 – copyrights
16.1 Without prejudice to the provisions of these General Terms and Conditions, the Seller reserves the rights and powers vested in it pursuant to the Dutch Copyright Act [Auteurswet].
16.2 All brochures, catalogues, price lists, documents and other materials or electronic or other files will remain the Seller’s property, irrespective of whether same have been made available to the Buyer or to third parties, unless provisions to the contrary have been agreed upon. Such goods are exclusively intended for the Buyer’s use and may not be reproduced, made public or be brought to the notice of third parties without the Seller’s prior permission, unless the contrary ensues form the nature of the documents provided.
article 17 – authentic version
The Dutch-language version of these Terms and Conditions must be deemed to be the only authentic version. In the event of any discrepancy between the Dutch text and a translation, the Dutch text will prevail.
article 18 – disputes
The competent court in the city or town where the Seller has its registered office will be competent to take cognisance of any disputes between the parties, to the exclusion of all other courts. Nevertheless, the Seller will be entitled to submit the dispute to the competent court according to the law.
article 19 – applicable law
All Agreements between the Seller and the Buyer will be governed by Dutch law. Applicability of the United Nations Convention on the International Sale of Goods is hereby explicitly excluded.
article 20 – filing of these Terms and Conditions
These Terms and Conditions have been filed at the office of the Chamber of Commerce and Industry for Oost-Brabant on 2 May 2006 under number 17147870.