DELIVERY CONDITIONS PERSELL
The terms and conditions are intended for business customers of Persell.
1. Definitions
2. General
3. Offers and quotations
4. Conclusion of the Agreement
5. Prices
6. Delivery
7. Payment
8. Cancellation
9. Termination of the Agreement
10. Warranty and complaints
11. Retention of title
12. Liability
13. Indemnity
14. Force majeure
15. Intellectual property rights and confidentiality
16. Limitation/expiry periods
17. Applicable law and disputes
Article 1. Definitions
In these general terms and conditions, the following terms shall have the meanings set out below:
1. "Buyer": the natural person and/or legal entity, acting in the course of a profession or business, to whom Persell addresses its offers, to whom Products are supplied or sold and/or services are provided by Persell, including their representative(s), authorised agent(s), legal successors and/or heirs;
2. "Persell": the sole proprietorship Persell Marketing & Sales, also trading under the name Persell Trading, established in (4493 RL) Kamperland, at the address Het Rip 10, Chamber of Commerce 24370763, info@persell.nl;
3. "Agreement": the agreement concluded between Persell and the Buyer regarding the sale or delivery of Products and/or the provision of services to which these general terms and conditions apply;
4. "Products": the goods supplied under these general terms and conditions.
Article 2. General
1. These general terms and conditions apply to all offers, quotations, legal relationships, and agreements relating to the sale and/or supply of Products and/or services by Persell.
2. These general terms and conditions also apply to other agreements, including subsequent and supplementary agreements, to which Persell and the Buyer, or their legal successor(s), are parties.
3. Any deviating and/or additional (verbal) agreements and/or commitments subsequently made by or on behalf of Persell are only binding if expressly agreed upon in writing.
4. If any provision of these general terms and conditions is null and void or is annulled, the remaining provisions of these general terms and conditions shall remain in full force and effect.
5. Persell has the right to amend and/or supplement these general terms and conditions.
6. Without Persell's written consent, the Buyer is not entitled to transfer any right or obligation arising from the Agreement to third parties.
7. If the Buyer consists of more than one (legal) person, each of these (legal) persons shall be jointly and severally liable to Persell for the obligations arising from the Agreement.
8. The Dutch text of these general terms and conditions prevails over any translation thereof.
9. The applicability of any (purchase) terms and conditions used by the Buyer is hereby expressly rejected.
Article 3. Offers and quotations
1. All offers and/or quotations from Persell are without obligation, unless Persell has expressly stated otherwise in writing. Persell may revoke or amend an offer at any time.
2. Offers and/or quotations from Persell do not automatically apply to repeat orders.
3. All images, specifications, information regarding weight, dimensions and colour and other data in Persell's offers and/or quotations are indicative only and cannot give rise to a liability for damages on the part of Persell or to rescission, or termination of the Agreement by the Buyer.
4. Persell reserves the right to correct errors and/or clerical errors in offers and/or quotations. No liability is accepted for the consequences of errors and/or clerical errors. Persell cannot be held to its offer if the offer and/or quotation, or a part thereof, contained an error or clerical error.
5. Third parties cannot derive any rights from information in offers, quotations, product brochures, drawings and/or price lists from Persell.
Article 4. Conclusion of the Agreement
1. The Agreement is concluded by written order and/or assignment confirmation by Persell, or by Persell commencing the provision of the service or the item.
2. Persell has the right to execute the Agreement in different phases, to deliver the Products to be supplied to the Buyer in partial deliveries, which partial deliveries may be invoiced separately by Persell.
3. Every Agreement is entered into under the suspensive condition of sufficient availability of the relevant Products.
4. Insofar as the Buyer performs any service or makes preparations for it in the apparent expectation that an Agreement will be concluded or the apparent assumption that an Agreement has been concluded, the Buyer does so at its own risk and expense.
Article 5. Prices
1. All prices (including rates) from Persell are in Euros and exclude VAT, import duties, other government charges, transport costs and insurance costs, unless Persell has expressly stated otherwise in writing.
2. The prices agreed between Persell and the Buyer may be increased after the conclusion of the Agreement if Persell has been confronted with a price increase by its supplier for the performance of its obligations under the Agreement, or if other price-increasing circumstances have occurred. If the price increase amounts to more than 10% of the invoice price of the Products, the Buyer may (exclusively) terminate the Agreement with respect to the price-increased Products, within 2 (two) working days after receipt of the notification of the price increase, in writing. In that case, the Buyer cannot claim compensation for damages, and Persell is only obliged to refund what the Buyer has already paid with respect to the part of the Agreement to which the termination relates.
Article 6. Delivery
1. Delivery of the Products takes place by delivering the Products to the location designated by the Buyer, unless the parties agree otherwise in writing.
2. The location designated by the Buyer must be easily accessible and the Buyer must promote the shortest possible waiting time.
3. The delivered Products are, from the moment of availability to the Buyer at the location designated by the Buyer, the property of the Buyer and at the Buyer's expense and risk. The Products are also the property of the Buyer and at the Buyer's expense and risk if Persell has offered the Products for delivery or has had them stored at the Buyer's request, but the Buyer, their representative, or the carrier designated by Persell or the Buyer, for whatever reason, does not take delivery. The resulting costs and damages, such as those for transport, storage, safekeeping and insurance, shall then be entirely borne by the Buyer.
4. An agreed delivery period is a target period, unless expressly agreed otherwise in writing.
5. Persell is only in default with regard to the delivery if it also fails to deliver within a reasonable additional period set by the Buyer by registered mail after the original delivery period. The reasonable additional period shall be at least 2 (two) calendar months. If Persell has not yet delivered within the reasonable additional period, the Buyer is entitled to terminate the Agreement by registered mail for the unperformed part. In that case, the Buyer cannot claim compensation for damages, and Persell is only obliged to refund what the Buyer has already paid with respect to the unperformed part. The Buyer does not have the aforementioned right of termination if he has been in default on his part.
6. The delivery periods may be extended and/or the execution of the Agreement may be suspended during the period in which the Buyer is in default with regard to the payment of any invoices pursuant to an Agreement with Persell.
7. In the event of force majeure within the meaning of Article 14 of these general terms and conditions, as well as if delay has arisen due to, whether or not attributable, acts or omissions of the Buyer or a third party, the delivery time shall be extended by at least the duration of the delay.
8. The method of packaging and transport shall be determined exclusively by Persell, unless expressly agreed otherwise in writing.
9. If, after the delivery of Products, Persell is not entitled, due to a request from the Buyer or from the government, to leave outer packaging, residual material or any other materials at the location designated by the Buyer, then all costs and damages resulting therefrom, including but not limited to those of transport, storage, safekeeping and destruction, shall be entirely borne by the Buyer.
Article 7. Payment
1. Payment shall be made no later than the date stated on the invoice, unless otherwise explicitly agreed in writing. This period is a strict deadline, after which default occurs by operation of law. If the invoice does not state an invoice date, a payment term of thirty (30) calendar days shall apply, calculated from the invoice date.
2. The Buyer is not permitted to invoke any right of suspension and/or retention, nor to apply any discount, deduction or set-off. The Buyer irrevocably and unconditionally waives these rights.
3. In the event of non-payment or late (partial) payment by the Buyer, Persell is authorized to suspend its obligations under the Agreement, and the Buyer shall owe interest of 8% of the outstanding invoice amount per month from the day on which payment to Persell was due until the day of full payment, whereby a commenced month shall be counted as a full month. If the Buyer continues to fail to pay the claim, Persell may hand over the claim, in which case the Buyer shall also be liable for reimbursement of all (actual and full) extrajudicial and judicial (collection) costs, or for a fixed compensation set at 15% of the relevant invoice amount, with a minimum of EUR 1,000.00. All this is at Persell's discretion.
4. For giro payments, the payment date is the date of crediting to Persell's account.
5. Payments shall always be applied to reduce costs and interest due (in that order) and then to reduce the principal sums, with older amounts taking precedence over newer ones.
6. Persell is entitled to demand full advance payment of the invoice amount for an Agreement with the Buyer.
7. Complaints about the invoice must be submitted to Persell within 3 (three) working days after the invoice date, failing which the invoice shall be deemed to have been approved.
Article 8. Cancellation
1. In the exceptional event that the Agreement is wholly or partially dissolved by the Buyer on the basis of Article 5.2, the Buyer shall be immediately liable to Persell for immediately payable cancellation costs amounting to 10% of the invoice amount relating to the dissolved Agreement concerned, or 10% of the invoice amount with regard to the dissolved part of the Agreement.
Article 9. Termination of the Agreement
1. In the event that the Buyer is in default with respect to any obligation under the Agreement or these general terms and conditions, or in the event of (an application for) bankruptcy, suspension of payments, debt rescheduling (WSNP), incapacity for work, company strike, attachment, (company) takeover and/or merger, or death on the part of the Buyer, all claims that Persell has against the Buyer shall become immediately due and payable, and Persell shall have the right to terminate or dissolve the Agreement in writing. Persell shall then be entitled to payment of the entire invoice amount, reduced by the (direct) costs saved by it as a result of the termination. The Buyer cannot then claim compensation for damages.
Article 10. Warranty and complaints
1. The Buyer is obliged to inspect the delivered Products immediately upon delivery. If it appears that the delivered item is incorrectly delivered, defective, or incomplete, the Buyer must immediately, or at least within twenty-four (24) hours, report visible defects or incorrectly delivered Products to Persell in writing. Any non-visible defects must be reported to Persell in writing no later than five (5) days after delivery. Failure to do so will result in the forfeiture of the right to complain.
2. Commissioning of the delivered Products after discovery of defects, damage occurring after discovery of defects, encumbrance and/or resale after discovery of defects, shall cause the right to complain and return to lapse entirely.
3. Persell is never responsible for the ultimate suitability of the delivered Products for any individual application by the Buyer, nor for any advice regarding the use or application of the delivered Products.
4. Minor deviations in quality, color, size, etc. of the delivered item cannot constitute grounds for complaint.
5. Returns will only take place after written consent from Persell, and exclusively according to Persell's instruction(s). Persell reserves the right to refuse returns that are not offered in the prescribed manner. The return will then not be processed and will be sent back at the Buyer's expense.
6. If the Buyer's complaint regarding a delivered item is justified, Persell will, at its option:
a) repair or replace the delivered Products or – if possible – the defective part (by a repairer designated by Persell), or;
b) make a written settlement with the Buyer regarding the compensation for damages, on the understanding that the amount of compensation for damages is always limited to a maximum of the invoice amount of the relevant (defective) Products. However, Persell is in all cases only liable within the limits set out in Article 12 of these general terms and conditions.
7. The application of the previous paragraph shall in any case lapse if:
a) The Buyer has repaired and/or processed the delivered Products itself or has had them repaired and/or processed by third parties;
b) the defects are the result of normal wear and tear;
c) the delivered Products have been exposed to abnormal circumstances or have otherwise been handled carelessly or contrary to the instructions of Persell and/or on the packaging or labels of the item and/or any other regulation;
d) the defectiveness is wholly or partly the result of regulations that the government has imposed or will impose regarding the nature or quality of the materials used.
8. Transport for replacement or repair shall be at the expense and risk of the Buyer, unless otherwise agreed in writing.
9. Non-performance by the Buyer of one or more of its obligations under the Agreement or these general terms and conditions shall release Persell from all obligations under this Article 10.
Article 11. Retention of Title
1. All Products delivered to the Buyer remain the property of Persell until all amounts owed by the Buyer for the Products supplied and/or services connected under the Agreement, as well as all amounts due to any shortcomings in its payment obligations, have been fully paid to Persell.
2. As long as the ownership of the delivered Products has not passed to the Buyer, the Buyer is not entitled to encumber the Products, transfer ownership, or grant any other right thereto to third parties, subject to the provisions of the following paragraph.
3. The Buyer is permitted to sell and deliver the Products delivered under retention of title to third parties within the scope of its normal business operations, but the Buyer is obliged to agree with these third parties on a retention of title that corresponds to this Article 11 of these general terms and conditions, at least for the period until full payment as referred to in Article 11.1 of these terms and conditions.
4. The Buyer is however obliged to store the Products delivered under retention of title with the necessary care and separately as identifiable property of Persell, and also to impose the aforementioned obligation on third parties to whom he has sold the Products delivered under retention of title.
5. If the Buyer fails to comply with the provisions of the previous paragraph, it shall be presumed that the Products present of the type as delivered by Persell belong to Persell.
6. If third parties wish to assert any right to the Products delivered under retention of title, for example by attachment, in the event of suspension of payments or in the event of bankruptcy, the Buyer is obliged to immediately inform Persell thereof.
7. The Buyer is obliged to insure the delivered Products for the duration of the retention of title against fire and explosion hazard, water damage, as well as against theft, the insurance policy of which can be requested and inspected by Persell upon first request.
8. The Buyer is obliged, upon Persell's first request:
a) to pledge or assign to Persell, at Persell's discretion, all claims or demands of the Buyer against insurers with regard to the Products delivered under retention of title (whether or not in advance), and;
b) to pledge or assign to Persell, at Persell's discretion, the claims that the Buyer obtains against its customers by virtue of the sale of Products delivered by Persell under retention of title (whether or not in advance);
9. In any case of default by the Buyer – which also includes the non-performance of any obligation under these general terms and conditions – or if, in Persell's opinion, there is a well-founded fear that the Buyer will not (timely or correctly) fulfill its obligations under the Agreement or these general terms and conditions, Persell is entitled to retrieve or have retrieved the delivered Products without further notice from the Buyer, or third parties holding the Products for the Buyer. The Buyer is obliged to cooperate fully with this on penalty of an immediately due and payable and set-off fine of 10% of the amount owed by the Buyer at that time, for each day that its refusal to cooperate continues.
10. The Buyer authorizes Persell and/or grants Persell prior permission to enter its premises and buildings for the purpose of exercising its retention of title.
11. After retrieving the Products on the basis of Article 11.3, the original invoice amount relating to the Products will be credited to the Buyer after set-off with whatever Persell has to claim from the Buyer for whatever reason (including the costs incurred by Persell for the purpose of exercising its retention of title).
Article 12. Liability
1. Persell's liability – as well as that of its representatives and/or authorized agents, employees, and third parties engaged by Persell – is always limited to the amount paid out in the relevant case under Persell's applicable (business) liability insurance. The amount insured by Persell for financial loss is currently €2,500,000 (two and a half million euros) per claim, with a maximum of €5,000,000 (five million euros) per year. If, for any reason whatsoever, no payment should be made under the aforementioned insurance, Persell's liability shall always be limited to the amount paid by the Buyer to Persell in respect of the Agreement, or the part thereof, in connection with which the liability arose.
2. Persell is never liable for indirect damage, including but not limited to consequential damage (to persons or Products), business damage, lost profits or income, missed savings and/or damage due to business interruption.
3. Persell is not liable for damage, of whatever nature, caused by third parties engaged by or on behalf of Persell and/or by materials used by it.
4. Persell is not liable for damage, of whatever nature, caused by incorrect and/or incomplete information provided by or on behalf of the Buyer or by persons, third parties, products or materials made available by the Buyer.
5. In all cases in which Persell is entitled to invoke the provisions of this Article 12, any employee(s), (commercial) agents and subcontractors who are held liable may also invoke them, as if the provisions of this Article 12 had been stipulated by the employee(s) and subcontractors concerned.
Article 13. Indemnification
1. The Buyer indemnifies Persell against all possible claims from third parties in connection with the performance of the Agreement, more particularly claims from third parties regarding Products and/or services supplied by Persell to the Buyer, as a result of which that third party may have suffered damage, regardless of its nature, cause, or time of origin.
2. The Buyer is obliged to assist Persell - at the Buyer's expense - both in and out of court if Persell is sued by a third party as referred to in the previous paragraph, and to immediately do everything that can be expected of the Buyer in that case. If the Buyer fails to take adequate measures, Persell is entitled, without notice of default, to proceed with such measures itself. All costs incurred by Persell as a result thereof shall be entirely borne by the Buyer.
3. The Buyer is obliged to take out adequate business liability insurance (AVB) before the Agreement is concluded, the insurance policy of which can be requested and inspected by Persell upon first request.
Article 14. Force Majeure
1. In the event of force majeure, Persell is authorized to terminate the Agreement in writing, to dissolve it wholly or partially, or to inform in writing that the performance of its obligation under the Agreement or a part thereof will be suspended for the period during which the force majeure situation continues. In such cases, the Buyer cannot claim performance or compensation for damages.
2. Force majeure is understood to mean any external cause, as well as any circumstance, which cannot reasonably be attributed to Persell's risk, including but not limited to delays, negligence by or breach of contract by Persell's suppliers and auxiliary persons, internet malfunctions, electricity failures, email traffic failures and malfunctions or changes in technology supplied by third parties, transport difficulties, strikes, government measures, delays in supply, staff illness, defects in auxiliary or transport equipment, and epidemics.
3. If, upon the commencement of force majeure, Persell has already partially fulfilled its obligations, or can only partially fulfill its obligations, it is entitled to invoice the already delivered or deliverable part separately, and the Buyer is obliged to pay this invoice as if it were a separate Agreement.
Article 15. Intellectual Property Rights and Confidentiality
1. Persell retains all intellectual property rights (including copyright, patent right, trademark right, design and model right, etc.) to all its designs, Products, materials, drawings, writings, data carriers or other information, offers, images, sketches, models, etc., unless otherwise agreed in writing.
2. Without the express written consent of Persell, the rights mentioned in the previous paragraph may not be copied, shown to third parties and/or made available to third parties or used in any other way than the method of use agreed with Persell and/or for a purpose other than that for which they were made available or delivered.
3. The Buyer is obliged to maintain confidentiality of all confidential information made available by Persell to him or any of his subordinates. Confidential information includes, in any case, everything to which the provisions of the first paragraph relate, as well as Persell's business data.
Article 16. Limitation/Expiry Periods
1. Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses of the Buyer against Persell shall be twelve (12) months from the moment such claims and defenses arise.
Article 17. Applicable law and disputes
1. All disputes relating to or arising from this Agreement shall be submitted to the competent court in Middelburg, unless Persell prefers to submit the dispute to the competent court of the Buyer's place of residence.
2. All agreements to which these general terms and conditions apply in whole or in part are governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (Vienna Sales Convention/CISG) is expressly excluded.
If you have any questions about this, please contact Persell,
Phone: 010-2800840,
Email: info@persell.nl.
