GENERAL TERMS AND CONDITIONS OF SALES AND DELIVERY
ELEONORA BV, BARNEVELD
Article 1 General.
1.1 These conditions apply to all offers and deliveries from Eleonora BV, established in Barneveld (Netherlands), hereinafter referred to as ‘Eleonora’, as well as to all (additional) agreements, including agreements that are connected with and/or result from distribution agreements concluded between Eleonora and a buyer, hereinafter referred to as ‘client’.
1.2 Special provisions of the client deviating from the terms and conditions of Eleonora – which are also understood to include purchasing terms – are not part of the agreement between Eleonora and the client and therefore do not bind Eleonora, unless Eleonora accepts the terms and conditions of the client in writing in whole or in part.
1.3 In these terms and conditions, the expression ‘in writing’ is understood to mean: by letter or by electronic means.
1.4 Insofar as these terms and conditions are also drawn up in a language other than Dutch, in the event of differences, the Dutch text shall always be determinant.
1.5 Should any provision of these general terms and conditions be null and void or be voided, then the other provisions shall remain in full force and effect and the void or voided provision(s) of these general terms and conditions shall be replaced by (a) valid provision(s) whereby the purpose and meaning of the void or voided provision(s) shall be taken into account to the greatest extent possible.
Article 2 Offers.
2.1 All offers and/or quotations are without obligation, even if a term for acceptance has been specified in the offer and/or quotation.
2.2 Oral offers from Eleonora or its subordinates are not binding, unless confirmed by it in writing.
2.3 Price lists, brochures etc. provided by Eleonora are subject to change and do not constitute a quotation.
2.4 All images, drawings, models, colours and other information such as properties, dimensions and specifications displayed in an offer are for information purposes only. These are binding only if this is expressly confirmed in writing by Eleonora.
2.5 Eleonora reserves all intellectual property rights to the images, drawings and models appearing in the offers, catalogues, website etc.
Article 3 Agreement.
3.1 The contract for the sale and purchase of goods and the performance of activities is first binding for Eleonora upon its written confirmation.
3.2 Any agreement entered into with Eleonora contains the condition subsequent that solely in its opinion, the client shall be adequately creditworthy.
3.3 The risk of mistakes and/or inaccuracies in the event of orders and instructions not confirmed in writing is wholly for the client’s account.
Article 4 Prices.
4.1 Any change in one or more of the cost-determining factors such as purchase prices (whether or not changed retroactively), exchange rates, import duties, sales tax, increases in raw material and material prices, production costs or currency changes, which occur after order confirmation but before delivery, gives Eleonora the right, at its own discretion, to charge a correspondingly higher price or to cancel the order, without the customer having any right to compensation.4.2 Unless expressly agreed otherwise in writing, all prices quoted by Eleonora are in Euros, exclusive of VAT, import duties and other taxes, levies or duties. The prices are based on Ex Works, Barneveld, The Netherlands (EXW, Incoterms® 2010) unless otherwise indicated in writing.
Article 5 Registered customers on the website.
5.1 The user name and password created by the client when logging on via the website are strictly confidential and are intended for the exclusive use of the user registering them.
5.2 The client guarantees that the user concerned is authorised to place orders on behalf of the client .
5.3 The client shall ensure that the user shall use the user name and password in strictest confidence and shall not supply them to third parties. Eleonora may assume, if a user logs in under the intended user name and password, that it is authorised to do so by the client.
5.4 As soon as the client knows or has reason to suspect that the user name and password are being misused or have come into the hands of unauthorised persons, the client shall immediately inform Eleonora about this, without prejudice to the client’s own obligation to take effective measures immediately.
Article 6 Agreements.
Understandings or agreements with subordinate members of Eleonora’s staff do not bind Eleonora, insofar as they are not confirmed by Eleonora in writing. In this context, subordinate personnel are considered to be all employees and staff who do not have power of attorney.
Article 7 Additional work and less work.
7.1 The work includes only that which has been agreed in writing between the parties. Additional work and less work before or during the performance of the activities must be agreed in writing and is eligible for settlement.
7.2 Costs incurred by Eleonora caused through no fault of its own can be charged to the client.
Article 8 Liability.
8.1 The liability of Eleonora towards the client is limited to compliance with the obligations described in Article 15.
8.2 Eleonora is never liable to the client for any damage of any kind suffered by the client, unless there is intent or gross negligence on the part of Eleonora. Liability for indirect damage, consequential damage, intangible damage, trading loss, loss of profit, environmental damage or damage as a result of liability towards third parties is also expressly excluded.
8.3 The client is obliged to indemnify Eleonora against all claims from third parties against Eleonora, directly or indirectly related to (the use of) the goods and/or services supplied, and the client shall compensate Eleonora for all damages suffered by Eleonora as a result of such claims unless there is intent or gross negligence on the part of Eleonora.
8.4 Notwithstanding the above, if and insofar as any liability rests on Eleonora for whatever reason, then the liability of Eleonora is limited to the amount of the net invoice value of the goods and/or services performed on the understanding that Eleonora shall be solely liable for a maximum sum not exceeding 250,000 Euros per claim. For the purposes of this article, a series of connected events causing damage shall be regarded as a single event/claim.
8.5 The provisions of this article do not affect the legal liability of Eleonora by virtue of mandatory provisions of law.
8.6 Any claim for damages shall expire if not submitted in writing to Eleonora within 1 year of the delivery/completion.
8.7 Eleonora undertakes to the best of its ability to guarantee the safety of the user of the webshop, but can in no case be held liable for damage caused by the use of the webshop and, in particular, for damage caused by third parties who abuse the website or the payment system.
8.8 Except in the case of intent and gross negligence, Eleonora is in no way liable for damages resulting from the inaccuracy and/or incompleteness of the website content, the (improper) use of the website and the provision of incorrect information by the client.
Article 9 Cancellation.
9.1 If the client cancels the contract for any reason whatsoever, it is obliged to compensate Eleonora for all reasonable costs incurred for the purpose of implementing the agreement (including costs of materials and raw materials already purchased by Eleonora, whether or not handled or processed at cost, including wages and social charges) without prejudice to the right of Eleonora to compensation for loss of profit and other damage. The client shall also pay Eleonora the sum of 1/3rd of the agreed price as cancellation costs. The client is also obliged to indemnify Eleonora against claims from third parties as a result of the cancellation of the contract.
9.2 Without prejudice to that specified in the previous paragraph of this article, Eleonora reserves all rights with regard to demanding full performance of the agreement.
Article 10 Supply.
10.1 The agreed delivery times are not deadlines. Eleonora is not in default in respect of the delivery time until it has been given a notice of default by the client in writing, the client has given Eleonora the opportunity to make the delivery nonetheless within a reasonable time and Eleonora has then failed to do so.
10.2 The delivery times are set in the expectation that there are no obstacles for Eleonora with regard to the goods to be delivered or activities to be performed.
10.3 The period for delivery does not commence until after an agreement has been made in accordance with the provisions of Article 3 and until the client has provided Eleonora with the data and information required for implementation of the agreement and Eleonora has received the agreed advance payment from the client.
10.4 Once Eleonora notices that the specified period for delivery shall be exceeded, Eleonora will inform the client of this. The obligations of the client remain unchanged. Only in the event of an excessive failure to meet the agreed delivery time (more than twelve (12) weeks late) shall the client be entitled to dissolve the agreement, unless the failure is caused by force majeure. However, the client shall never be entitled to any penalty or compensation.
10.5 Goods may be delivered in partial deliveries unless the client has objected to this in writing. In the event of partial deliveries, the (payment) conditions described below shall also apply to each partial delivery.
10.6 The client has a purchasing obligation. If client does not accept delivery of the goods on the agreed date, the client is in default and Eleonora then has the option to (i) terminate the agreement without judicial intervention; (ii) ship the goods to the client at the client’s risk and expense; (iii) hold the goods itself at the client’s risk and expense. All costs arising from the aforementioned circumstances, including storage costs and any loss of revenue, shall be borne by the client. The aforementioned applies without prejudice to the other rights of Eleonora.
10.7 Shipments shall be made in the manner specified by Eleonora. Delivery conditions are agreed per transaction. All delivery conditions apply in accordance with Incoterms® 2010. If the client wishes to receive a shipment by fast or express delivery, the extra costs associated with this are for the account of the client.
10.8 For deliveries by Eleonora within the Netherlands and Belgium, the transport costs are borne by Eleonora if the net order value is at least €750 (the Netherlands) or at least €1000 (Belgium). For deliveries by Eleonora outside of the Netherlands and Belgium, separate agreements shall be made regarding the transport costs.
10.9. The client shall not sell the goods via general online sales platforms such as e-Bay, bol.com etc.
Article 11 Retention of title.
11.1 As long as Eleonora has not received full payment of all sums, including any interest and costs that the client owes for any goods delivered or to be delivered under any agreement and/or for the performance of work and/or resulting from failure to comply with such an agreement, the delivered goods remain the property of Eleonora.
11.2 Eleonora has the right to claim the return and to repossess these goods if the defaulting client does not meet its obligations, if it goes into liquidation, applies for or is granted a suspension of payments, is declared bankrupt or if its goods are attached.
11.3 The client is required to treat the goods with care and to insure them against the usual risks and does not have the right, other than after obtaining written consent from Eleonora, to encumber, alienate, hire out, grant any right of use and/or (tacit) right of lien to the delivered goods, as long as client has not fully met its obligations towards Eleonora. However, the client is permitted to use or alienate the goods within the scope of its normal business activities. However, the client is not permitted to alienate the goods in the context of its normal business operations at the moment that the client has applied for a suspension of payments or the client has been declared bankrupt.
11.4 The client can agree with third parties that they pay the purchase price for him and that they are subrogated in the claim from Eleonora. In the event of payment by a third party who is subrogated in the claim of the client, the retention of title shall not lapse.
11.5 By subrogation as referred to in paragraph 11.4, Eleonora delivers the retained title of the goods for which the third party has paid the purchase price to the subrogated third party. From the time of subrogation, the client keeps the described goods for the subrogated third party.
11.6 Subrogation in the claim by and transfer of the retained title to a third
party as referred to in paragraphs 11.4 and 11.5 are without prejudice to the right of the client to claim against Eleonora in the event that Eleonora in any way fails to fulfil the agreements concluded between them.
11.7 If and for as long as Eleonora is the owner of the goods, the client shall immediately inform Eleonora when the goods are attached (or likely to be) or a claim is otherwise made on (any part of) the goods. Moreover, (in that case) the client shall inform Eleonora of the location of the goods for which Eleonora is the owner. In the event of attachment or (temporary) suspension of payments, the client shall immediately inform the seizing bailiff or the administrator of the (property) rights of Eleonora. The client guarantees that an attachment on the goods shall be lifted immediately.
11.8 If the same type of goods are delivered on one or more unpaid invoices, the goods present at the client’s premises shall be deemed to have been delivered on the unpaid invoices.
Article 12 Force majeure.
12.1 Eleonora is not obliged to fulfil any obligation under an agreement, if it is prevented from doing so as a result of force majeure.
12.2 Force majeure within the meaning of the article shall be understood to mean circumstances that in all reasonableness hinder (timely) delivery by Eleonora, including but not limited to storm damage and other natural disasters, obstructions by third parties, obstructions in transport in general, total or partial strikes, riots, war, or danger of war both here in this country and in the country of origin of the materials, exclusions, loss or damage of goods during transport to Eleonora or to the client, non- or late delivery of goods by suppliers of Eleonora, export and import bans, sanctions, boycotts, embargoes, full or partial mobilisation, obstructive measures taken by any government, fire, malfunctions
and accidents in the company or in the means of transport of Eleonora, or in the means of transport of third parties and the imposition of levies or other government measures.
12.3 If Eleonora at the onset of force majeure has already partially met its obligations or can only partially meet its obligations, it is entitled to invoice the already delivered part or the deliverable part separately and the client is obliged to pay this invoice as if it concerned a separate agreement. Eleonora also has the right to change the content of the agreement in such a way that its implementation seems possible.
12.4 When the force majeure situation has lasted longer than six (6) months, both Eleonora and the client have the right to terminate the agreement by dissolution. In that case, the client is not entitled to any compensation.
Article 13 Delivery.
13.1 In the event of the delivery of the goods and/or the performance of services, the client has to ensure under penalty of costs and damage that:
a: The place where the workpieces and/or materials are to be stored, or where the deliveries must be made is such that damage in any way whatsoever shall not occur;
b: Access to the site and/or area where the delivery should take place is unobstructed and furthermore that every cooperation is given to ensure the smoothest possible delivery;
c: If a lift or crane needs to be used, then the opportunity to do so is provided. Any damage caused thereby is for the account of the client unless gross negligence or intent on the part of Eleonora is established. If on delivery the space through which the goods have to be brought turns out to be too small and there is no suitable lift, then a removal lift can be hired. The costs of this shall be borne by the client;
d: the room in which the work has to be done has electricity, light, heating, water and adequate ventilation. The activities will be expected to be carried out during normal working hours unless otherwise agreed in writing.
Article 14 Complaints.
14.1 The client is obliged to inspect the work or the goods thoroughly for visible defects immediately upon delivery or completion. The client must state any shortcomings, visible defects and/or damage in this respect on the transport document or the delivery note. The client is obliged to make notification of complaints or damage in writing as quickly as possible but in any case within seven (7) working days of delivery or completion, accurately stating the nature and grounds of the complaints or damage, failing which the client will be deemed to have accepted the delivery. The introduction of the goods is considered as acceptance. The aforementioned notifications can be submitted to Eleonora only via the notification procedure established by Eleonora.
14.2 Eleonora must be in a position to monitor any complaints submitted. Agreement on the actions to be taken by Eleonora are evidenced from a confirmation from the client by e-mail of the offer from Eleonora.
14.3 Should the parties not be able to reach agreement, an independent expert shall be engaged. The costs of this expert shall be borne by the party found to be in the wrong, unless agreed otherwise.
Article 15 Warranty.
15.1 The goods delivered by Eleonora possess the properties that the client and the end customer can expect under normal use.
15.2 Eleonora provides the end customer with a warranty of one year after delivery to the client.
15.3 The guarantee means only that Eleonora will, to the best of its ability and at its own decision, replace, restore, repair or reduce the price of the goods delivered or take the products back and credit the client for the invoice amount in question. Under no circumstances is Eleonora obliged to compensate for other costs and/or damage. Any costs incurred by the client in replacing a good shall be borne by the client. Goods can be returned by the client only after obtaining written consent from Eleonora and provided the goods are properly packaged.
In such cases, the client is obliged to permit restore/repair by a specialist technician. For the repaired goods, the original warranty period continues; there is thus no new warranty period.
15.4 The end customer is entitled to claim under the warranty only if the goods are used, maintained and treated correctly and the client has fulfilled all his obligations towards Eleonora.
15.5 The end customer has no claim under the warranty in the following cases:
– the appearance of wrinkles and/or fine cracks in the goods as a result of the gradual loss of construction moisture after new construction or renovation;
– the appearance of discolorations, wrinkles and/or fine cracks caused by the direct action of heat sources such as the sun, central heating pipes and fireplaces;
– defects caused by a humidity percentage that is too high or too low in the room and in the surrounding areas concerned, or an extreme change in this or because of a non-flat sub-floor.
15.6 If, in the unhoped-for event after the warranty period of one year that a problem nonetheless occurs with a good, then Eleonora will always do its utmost to find a suitable solution together with the client. This may involve calling in a technician, sending a replacement part, delivering a new good for an additional fee and possibly taking it back for repair. The costs associated with this shall be borne by the client.
15.7 Minor deviations in colour, wear resistance, structure, finish, finishing etc. that are considered acceptable in the trade or acceptable from a technical point of view cannot constitute grounds for complaint under the warranty.
Article 16 Personal data.
16.1 Eleonora processes personal data within the meaning of the General Data Protection Regulation (GDPR).
16.2 The processing of personal data by Eleonora takes place in accordance with the applicable (inter)national law regarding the protection of personal data.
16.3 The client agrees that Eleonora may and can process confidential information and personal data concerning the client and/or persons (formerly) employed by, or for, or connected with
the client, and/or its clients or third parties, within the framework of (i) an order provided by the client to Eleonora, (ii) compliance with a legal obligation, (iii) optimisation of the service and (iv) internal business purposes. Processing in this context is also understood to include the sharing of this information with Eleonora affiliated legal entities and enterprises, and with third parties involved in the execution of the order and, moreover, the processing by processors in the service of Eleonora.
16.4 The client guarantees that personal data it provides or which originates from it may be processed by Eleonora and the client indemnifies Eleonora for damages in connection with claims from data subjects or third parties regarding non-compliance with the applicable laws and regulations regarding personal data protection.
16.5 Taking into account the state of the art and the costs of implementation, Eleonora takes appropriate measures to protect personal data originating from the client.
Article 17 Suspension and dissolution.
17.1 With regard to an agreement existing between itself and the client, insofar as it has not yet been implemented, without judicial intervention and without notice of default with a reasonable time, Eleonora is entitled to suspend or dissolve the agreement without any obligation to pay compensation if client does not properly, fully or in a timely manner meet the (payment) obligations it faces on grounds of any Eleonora agreement, or if there are grounds to fear that the client will not fulfil its obligations or will not fulfil them in a timely manner as well as in the event of bankruptcy or suspension of payment of the client in the event of cessation or liquidation of its business.
17.2 Suspension and dissolution shall not affect the payment obligation for the goods already delivered. In addition, Eleonora is also then entitled to claim compensation from the client for damages, costs and interest, including for any lost profit suffered by Eleonora. Payment of these claims is due with immediate effect.
17.3 If the client fails to fulfil one or more of its obligations or is in default, then all reasonable costs incurred by Eleonora to obtain satisfaction, both judicial and extra-judicial, including the costs of legal assistance for Eleonora, as a result of the client’s failure, lateness or incorrect performance, are for the account of the client.
Article 18 Payment.
18.1 As long as Eleonora has not extended a credit limit to the client, delivery is made only under (full or partial) advance payment.
18.2 Payment must be made within eight (8) days of the invoice date, unless otherwise agreed in writing. Payment should be made without deduction of any discount, bank charges or any off-sets in Euros, by deposit or transfer to a bank account designated by Eleonora. Payment is deemed first to have taken place as soon as the amount due is irrevocably credited to the bank account of Eleonora.
18.3 If the client does not meet its payment obligation to Eleonora within the agreed period, it is in default – without any requirement for prior summation and notification of default – and, from the date of the default, the client is required to pay interest on the amount owed of one and a half percent (1.5%) per month, whereby any part of a month is counted as a whole month.
18.4 Eleonora is also entitled, outside of the principal sum and interest, to claim from the client all costs, both judicial and extra-judicial, arising from the non-payment, including the costs of lawyer, bailiff and collection agency. The extra-judicial costs are fixed at a minimum of 15% of the invoice amount involved and shall be at least EUR 150 per claim.
18.5 Eleonora is at all times entitled on or after entering into the agreement, before doing anything (further), to demand that the client provides immediate (additional) payment security in a form to be determined by Eleonora. If the client fails to provide the required surety (in a timely manner), Eleonora is entitled, without prejudice to its other rights, to immediately suspend the further implementation of the agreement or to dissolve the agreement in whole or in part without notice of default or judicial intervention, without prejudice to its right to compensation for any damages it has suffered. Furthermore, all that which the client owes to Eleonora for whatever reason immediately becomes due.
18.6 Any objections to an invoice must be submitted in writing to Eleonora specifying the reasons why within eight (8) working days of the invoice date. After the expiry of this period, complaints will no longer be dealt with and the client will have forfeited its rights in this respect. Objections concerning the amount of the submitted invoices do not suspend the payment obligation of the client.
18.7 Eleonora has the right to suspend the fulfilment of its obligations until the client has met all its payment due obligations.
Article 19 Intellectual property rights.
19.1 Eleonora reserves all its rights with regard to intellectual property in connection with goods it has supplied and/or activities performed. Eleonora is and remains the exclusive owner of the copyright, design right or any other intellectual property right in respect of its goods.
19.2 Without written consent from Eleonora, the client is not permitted to copy the goods or to modify them in whole or in part.
19.3 The client is not permitted to provide goods delivered with a different brand name or to use the brand concerned in a different way or to register it in its own name.
Article 20 Applicable law and competent court.
20.1 These general terms and conditions and all Eleonora offers and all agreements made between Eleonora and clients are governed exclusively by the laws of the Netherlands. The applicability of the Vienna Sales Convention is expressly excluded.
20.2 All disputes that may arise between parties, including any recoveries of the amount owed, shall be brought exclusively before the Civil Court of the place of establishment of Eleonora, without prejudice to the right of Eleonora to submit the dispute, if desired, to the competent court in the place of establishment of the client. Disputes between Eleonora and clients established outside the EU shall be settled definitively by the arbitration of the International Chamber of Commerce (“ICC”) in accordance with the ICC Arbitration Rules by one or more arbitrators appointed in accordance with these Rules. The language used is Dutch or English. The arbitration will take place in Utrecht (the Netherlands).