Filex is a trade name of In2Brands B.V.
Terms and conditions of sale for:
In2Brands B.V.
Vismeerstraat 3A
5384 VL Heesch
Chamber of Commerce Reg. No.: 56559771
ARTICLE 1: APPLICABILITY
1. These terms and conditions apply to all offers and all sales and purchase agreements pertaining to In2Brands B.V. located at Heesch, hereinafter referred to as “the user”.
2. The client and or buyer will hereinafter be referred to as “the other party”.
3. The possible inapplicability of a (part of a) provision of these terms and conditions does not affect the applicability of the other provisions.
4. Additions or amendments to the terms and conditions only become binding after written confirmation from the user.
ARTICLE 2: AGREEMENTS
The agreement with the other party comes about after written confirmation from the user, or when the user commences execution of the agreement.
ARTICLE 3: OFFERS
1. All the user’s offers, quotes, price lists, delivery times, etc. are non-binding unless they contain a term of acceptance. If a quote and or offer contains a non-binding offer and this is accepted by the other party, then the user is entitled to revoke the offer within 2 working days of receipt of acceptance.
2. Samples, brochures and/or models, etc. that are displayed or provided are for illustrative purposes only.
No rights may be derived from these unless the parties have explicity agreed otherwise in writing.
3. A. If the government and or trade unions make changes to wages, terms and conditions of employment, social security, etc. between the date the agreement was concluded
and execution of the agreement, the user is entitled to
pass on increases to the other party. Should a new price list be issued by the user and/or suppliers and come into effect between the aforementioned dates, then the user is entitled to charge the other party the prices stated therein.
B. If the other party is a natural person not engaging in a profession or business, price increases may be passed on or charged within 3 months of conclusion of the agreement. In the event of price increases as described in this article within a period of less than 3 months, the other party is entitled to dissolve the agreement.
ARTICLE 4: DELIVERY AND DELIVERY TIMES
1. Specified periods within which goods must be delivered and or work must be carried out should never be regarded as strict deadlines unless explicitly agreed otherwise in writing. The user must be given written notice of default in the event of late delivery.
2. In the case of delivery in stages, each delivery or stage is regarded as a separate transaction.
3. The risk relating to goods delivered is transferred to the other party at the time of delivery.
4. If it proves impossible to deliver the goods to the other party, or to carry out the work due to a fault on the part of the other party,
the user reserves the right to store the goods at the expense and risk of the other party. The user will notify the other party in writing of any storage arranged and/or
obstacles hampering execution of the work to be carried out and will also
stipulate a reasonable term within which the other party must enable the user to resume the work and/or deliver the goods.
5. If the other party still fails to fulfil its obligations after expiry of the reasonable term stipulated by the user as stated in the previous paragraph of this article by virtue of the expiry of 1 (one) month from the date of storage
and or hindrance to execution of the work to be carried out, the other party is in default and the user is entitled to dissolve the agreement in writing, in whole or in part, with immediate effect and without prior or further notice of default, without judicial intervention and without compensation for damages, costs and interest.
6. The aforementioned does not affect the other party’s obligation to pay the agreed price and or the stipulated price and or the outstanding costs, as well as any storage and/or other costs.
7. In connection with the other party fulfilling its financial obligations – the user is authorized to demand advance payment or a deposit prior to proceeding with delivery.
ARTICLE 5: DELIVERY PROGRESSION
1. If the delivery or works cannot proceed normally or without interruption due to no fault of the user, the user is entitled to bill the other party for the resulting costs, including call-out costs.
2. All expenses incurred by the user at the request of the other party are payable in full by the aforementioned, unless explicitly agreed otherwise in writing.
ARTICLE 6: SHIPPING
1. Shipment of goods ordered will take place in a manner to be determined by the user, unless parties explicitly agree otherwise in writing.
2. The user will not be held liable for losses of whatever nature or kind related to shipment, whether or not the goods are affected.
3. The other party must arrange appropriate insurance against the aforementioned risks.
4. The other party is responsible for good accessibility to the destination and/or delivery site and is responsible for loading and or unloading.
5. Orders and or deliveries that are not accepted will be stored by the user at the expense and risk of the other party in accordance with the provisions in article 5.
ARTICLE 7: COMPLAINTS AND RETURNS
1. The other party must immediately, but within no more than 24 hours of delivery, check the goods delivered thoroughly for disparities such as defects, incorrect quantities, or incorrect sizes and check them against the order placed and the shipping documents. The user must be notified of disparities in writing immediately.
2. The same terms and conditions apply to non-visible defects– bearing in mind the first paragraph – on the understanding that the complaints period starts immediately, but within 24 hours of discovery of the disparity at the latest.
3. A complaint period of 5 working days after discovery of the disparity applies to all other complaints. For complaints about invoices, a complaint period of 5 days after the date of the invoice applies.
4. If the complaint is not lodged in writing within the period stipulated, the delivery and/or invoice is considered correct, both in fact and in law. In that case, the onus is on the other party to provide evidence to the contrary.
5. Ordered items are delivered in wholesale packaging supplied by the user.
Minor deviations in terms of specified sizes, weights, quantities, colors and the like are not considered a shortcoming on the part of the user.
6. Complaints do not suspend the other party’s obligation to pay.
7. The user must be given an opportunity to investigate the complaint.
8. If it is necessary to return a consignment before the complaint can be investigated, this will only be done at the expense and risk of the user if the latter has explicitly agreed to this in writing in advance.
9. In all cases, return shipment will take place in a manner determined by the user and in the original packaging and or wrapping. The costs and risk of the return shipment will be carried by the other party, unless the user finds that the complaint has merit.
10. If the nature and/or composition of the goods has changed after delivery, or if the goods have been treated or processed in whole or in part, or have been damaged or repackaged, any right to complain lapses.
ARTICLE 8: LIABILITY
The user will only be held liable by the other party for direct damage to the goods delivered as a consequence of a shortcoming directly attributable to the user, and will only be held liable for goods already defective upon delivery insofar as the other party can demonstrate intent or gross negligence on the part of the user.
1. The user explicitly excludes liability for consequential losses of the other party including – but not limited to – loss of profits, losses related to stagnation, labor costs, interest, repair costs, transportation costs, or fines.
2. Liability for losses is explicitly limited to the sum paid out by insurance in the case in question, plus the deductible. If, for whatever reason, insurance does not pay out, liability for losses is explicitly limited to the sum on the invoice, excluding VAT.
3. In any case, loss/damages is understood to include losses due to shortcomings, termination of the agreement, or an unlawful act.
4. Claims for compensation must be brought by the other party within 1 year of being found liable by the competent court specified for that purpose in accordance with these terms and conditions. The compensation claim will have lapsed after the period referred to in the above paragraph.
ARTICLE 9 WARRANTY
If the goods supplied by the user come with a manufacturer’s warranty, that warranty will apply equally to parties.
ARTICLE 10: PAYMENT
1. Payment must be made within 30 days of the date of the invoice.
2. In the absence of payment within 30 days of the invoice date, the other party is legally in default and owes the user default interest of 2% per month with immediate effect.
3. In the absence of payment within 30 days of the invoice date, the other party also owes the user compensation for extrajuducial costs. The compensation for extrajuducial costs is 15% of the outstanding sum, but at least € 250.00.
4. In the absence of payment within 30 days after the invoice date, the other party will be liable for a sum of at least € 20.00 for administration costs in relation to each payment reminder, warning, etc. sent to the other party.
5. Suspension and settlement by the other party of the user’s claims against the other party are excluded.
6. Complaints pertaining to invoices must be submitted to the user in writing within 5 working days of the invoice date stating the reasons, failing which invoices will be considered correct in fact and in law.
7. The user is always entitled to offset all the other party’s monetary claims against the user against claims of the user, and companies (in)directly affiliated with the user in any way, against the other party.
8. If the other party in any way forms part of a group of companies, the other party as meant in this article also includes all companies that in any way belong to that group.
9. If the user suspects the other party will not fulfil its payment obligations in a timely fashion, the user is authorized to suspend fulfilment of obligations entered into to supply products and or carry out work for the other party until payment has been made or proper security has been provided for this.
ARTICLE 11: RETENTION OF TITLE
1. Subject to the provisions in paragraph 2 through 11 of this article, ownership of the goods will pass to the other party at the time of delivery or supply as stipulated in article 5, paragraph 1, or from the point at which the goods are collected.
2. The user retains ownership of all goods it supplies or delivers to the other party – paid or unpaid – under the (rental) purchase agreements concluded and the related services agreed.
3. If the user carries out or is to carry out work for the benefit of the other party to be paid for by the other party in the context of these agreements, the aforementioned retention of title applies until the other party has settled these payment demands of the user in full. The retention of ownership also applies to claims the user has or may have against the other party due to shortcomings – or dissolution of the agreement – by the other party in fulfilling one or more of its obligations towards the user under the aforementioned agreements.
4. If the user invokes the retention of ownership, the agreement concluded in this regard shall be deemed to have been dissolved without prejudice to the user’s right to claim compensation for damages, lost profits and interest.
5. As long as ownership of the goods delivered or supplied has not passed to the other party, the latter may not pawn the goods, grant a third party any other rights thereto, and/or put the goods into storage under the actual control of one or more financiers (warrantage), subject to the provisions in paragraph 9 of this article, because this will be regarded as an attributable breach on his part. The user can then immediately and without the obligation to issue any notice of default, suspend his obligations arising from the agreement, or dissolve the agreement without prejudice to the user’s entitlement to compensation for damages, loss of profit and interest.
6. The user reserves the right to put a lien as described in the Dutch civil code on delivered or supplied goods of which owership has passed to the other party and which are still in the hands of the other party as surety for all claims the user may have against the other party for whatever reason. The user is at all times entitled and is hereby irrevocably authorized by the other party to carry out actions necessary to establish the right of this lien (explicitly understood to mean the establishment of a lien by authentic or registered private deed) and also to act on behalf of the other party. The other party agrees to cooperate with this lien process immediately at the request of the user.
7. The other party is obliged to look after the goods delivered or supplied under retention of ownership with due care and as the recognizable property of the user. The other party is obliged to insure the goods against fire, explosion and water damage, as well as theft, and to make these insurance policies available to the user for inspection at the first request for the duration of the retention of title. All claims the other party makes against the insurers of the goods by virtue of the aforementioned insurance policies will be pledged to the user by the other party as per article 3:239 of the Dutch civil code as additional security for the user’s claims against the other party. The last two sentences of paragraph 6 of this article apply.
8. If the other party fails to fulfil its payment obligations towards the user or the user has justifiable grounds to fear the other party will fail to fulfil those obligations, the user is entitled to repossess the goods delivered under retention of ownership on its own initiative and without any liability towards the other party. Once the goods have been repossessed, the other party will be credited for the market value, which under no circumstances will exceed the original purchase price, less the costs incurred for repossession.
9. The other party is permitted to sell or transfer the goods supplied/delivered under retention of ownership to third parties as part of normal business practise. In the event of sale on credit, the other party is obliged to stipulate retention of ownership from its customers pursuant to the provisions in this article.
10. As soon as the user expresses the wish to do so, the other party undertakes not to assign or pledge claims he obtains against his customers, insofar as the other party has not pledged them to its financing bank, and not to pledge or assign them to third parties without the prior written consent of the user. Furthermore, the other party undertakes to pledge the claims in question to the user as soon as the user expresses the wish to do so in the manner described in article 3:239 of the Dutch civil code as additional security for its demands against the other party for whatever reason. The last two sentences of paragraph 6 of this article apply.
ARTICLE 12: BANKRUPTCY, POWER OF DISPOSITION, etc.
Without prejudice to the provisions in the other articles of these terms and conditions, the agreement concluded between the other party and the user can be dissolved without judicial intervention and without the requirement for any notice of default at the time the other party is declared bankrupt, requests or obtains a (provisional) suspension of payment, is affected by a seizure under warrant of execution, is placed under guardianship or administration, or otherwise loses the power of disposal or legal capacity in relation to assets or parts thereof.
ARTICLE 13: FORCE MAJEUR
1. If fulfilment of the user’s obligations towards the other party under the agreement concluded is not possible and this is due to non-attributable non-performance on the part of the user, and/or on the part of third parties or suppliers contracted to execute the agreement, or in the event of another noteworthy reason on the part of the user, the user is entitled to dissolve the agreement concluded between the parties or to fulfil its obligations towards the other party within a reasonable timeframe to be determined by him without the obligation to pay any compensation. If the abovementioned situation should arise when the agreement has been executed in part, the other party is obliged to fulfil its obligations towards the user until that point.
2. Circumstances in which there is non-attributable failure to perform include, amongst others: war, unrest, mobilization, national and international unrest, government measures, strikes and lockouts by workers, or the threat of these and similar circumstances; disruption of prevailing exchange rates at the time the agreement is concluded; operational disruptions due to fire, accident, or other incidents and natural phenomena, irrespective of whether non or late fulfilment takes place by the user, its suppliers or third parties contracted to execute the agreement.
3. In the event the other party should in any way fail to fulfil its obligations to the user promptly, in the event of cessation of payment, application for (provisional) suspension of payment, seizure under warrant of execution, estate clearance or liquidation of the other party’s business, anything it owes the user by virtue of the agreement becomes due in full and payable immediately.
ARTICLE 14: DISSOLUTION
1. The other party waives all rights to dissolution of the agreement pursuant to article 6:265 et seq. of the Dutch civil code or other statutory provisions, unless the user agrees thereto.2. Sums already paid by the other party will not be refunded.
ARTICLE 15: APPLICABLE LAW/COMPETENT COURT
1. The purchase agreement and all disputes arising from it are governed exclusively by Dutch law. The Vienna sales convention is explicitly excluded.
2. All disputes between parties arising from the agreement, or directly or indirectly related to it, will be settled by the competent court in the user’s place of business.
3. The user is entitled to act in accordance with the provisions in paragraph 2 of this article or – if he pleases – to bring a claim via the competent court in the country or state where the other party is located.
