General Terms and Conditions (for Delivery and Guarantee)
The General Terms and Conditions below (hereinafter: GTC) apply to Be-O B.V. and its subsidiary Be-O Bottle B.V. (hereinafter jointly BE O) and have lastly been modified in September 2018.
Article 1 – General
These GTC are applicable to on each offer, designated offer and agreement between BE O and a Customer, to which BE O has declared these General Terms and Conditions applicable, insofar from these General Terms and Conditions has not been deviated by parties explicitly and in writing.
General terms and conditions (of purchase or otherwise) of the Customer, are not applicable.
If one or more stipulations in these General Terms and Conditions, should at any time be invalid or invalidates, then the remaining stipulations in these GTC remain fully applicable.
If between parties a situation occurs, that has not been regulated in these GTC, then this situation must be assessed according to the spirit of these GTC.
Article 2 – Designated offers and offers
All designated offers and offers of BE O are non-binding, unless designated otherwise. A designated offer or offer becomes void, if the product to which the designated offer or the offer relates, is not available anymore.
BE O cannot be held to its designated offers or offers, if the Customer reasonably can or could have understood, that the designated offers or offers contain an obvious mistake or typo.
Agreements or promises, deviating from the designated offer, offer or GTC, will only then deemed to have been made, if these have been confirmed by us in writing.
The prices stated in a designated offer or offer, in writing or on a website, are in Euros, exclusive of VAT and other levies by the government, shipping and administration costs, unless designated otherwise.
A composed price statement does not oblige BE O to the execution of a part of the commission against a part of the related price stated.
If the customer cannot agree with the content of the order confirmation, then he must submit his objections within 7 days after receipt, in writing to us, in the absence of which the order confirmation will be deemed to represent the agreement correctly.
BE O has the right to introduce price changes without announcement. BE O cannot be held to erroneous price statements, as the consequence of input, typing or printing errors.
Article 3 – Contract duration, delivery terms, execution and changing agreement
If for the completion of certain activities or for the delivery of certain goods a term agreed, then this is never a fatal term. In case of exceeding of a term, the Customer must declare BE O in default in writing, with a reasonable term to give execution after all to the agreement.
The term of execution does not start sooner, then after the Customer has made the necessary data correctly and completely available to BE O.
Delivery takes place ex-works of BE O or its concerned production location. The Customer is obliged to take off the goods at the moment that these are made available to him. If the Customer refuses take-off or is negligent with the provision of information or instructions that are necessary for the delivery, then BE O is authorized to store the goods for the account and the risk of the Customer.
BE O has the right to let certain activities be executed by third parties.
If the agreement will be executed in phases, then BE O can suspend the execution of those parts that belong to the following phase, until the Customer has approved the results of the preceding phase in writing.
If during the execution of the agreement, it shows that it is necessary for a proper execution thereof, to change or add to it, then parties shall timely and in mutual consultation proceed to modification of the agreement. BE O shall, in that case, make as much as possible a prices statement in advance.
If the agreement is changed, then BE O is authorized to firstly give execution thereto, after the Customer has agreed with the price and other terms and conditions stated for the execution, including the time on which thereto execution shall be given. The non or not immediate execution of the changed agreement does nor render default of BE O and is neither a ground for the Customer to cancel the agreement. BE O can refuse a request to changing of the agreement without a statement of reasons.
If the Customer should enter in default in the proper compliance with the agreement, then the Customer is liable for all damage on the side of BE O.
If BE O agrees a fixed price with the Customer, then is BE O nevertheless authorized to increase of this price if the increase of the price derives from the laws or regulations or finds its cause in a price increase of raw materials, wages et cetera.
The person, who gives a print or reproduction commission, will be deemed to be authorized thereto. He bears, jointly with his principals and with the exclusion of the printer, all responsibility towards third parties.
Article 4 – Suspension, dissolution and in-between cancellation of the agreement
BE O is authorized to suspend the compliance with the obligations, or to dissolve the agreement, if:
- the Customer does not, not fully or not timely comply with the obligations of the agreement;
- circumstances come to the knowledge of BE O after the conclusion of the agreement, give good grounds to fear that the Customer shall not comply with the obligations;
- circumstances occur, that are of such a nature, that compliance with the agreement is impossible, or if circumstances occur, that are of such a nature, that unchanged maintaining of the agreement in reasonableness cannot be required of BE O.
If the dissolution is imputable to the Customer, then BE O is entitled to compensation of all damage.
In case of liquidation, application for suspension of payment or bankruptcy against the Customer, or another circumstance because of which the Customer cannot longer freely dispose over his capital, then BE O is at liberty to cancel to cancel the agreement immediately and with immediate effect, without any obligation on its side to payment of any compensation of damages. The claims of BE O on the Customer are in that case immediately payable upon demand.
If the Customer cancels a placed order entirely or in part, then the goods ordered or made ready for it, increased with possible costs of supply and delivery thereof and the labor time reserved for the execution of the agreement, shall be brought integrally into account to the Customer.
If the agreement will be dissolved, then the claims of BE O on the Customer will be immediately payable upon demand.
Article 5 – Force Majeure
BE O has not required the compliance with the agreement towards the Customer if he is hindered thereto as a consequence of a circumstance that not is imputable to the fault and neither based on the law, a legal act or opinions current in society, comes for his account.
Under Force Majeure will be understood in this GTC, in addition to what is understood in the law and jurisprudence, all external causes, foreseen or not foreseen, in which BE O can exercise no influence, work strikes in the enterprise of BE O or of third parties, therein included.
BE O can, during the period that the Force Majeure continues, suspend the obligations from the agreement. If this period lasts longer than two months, then each of the parties is authorized to dissolve the agreement, without obligation to compensation of damages to the other party.
For as much as BE O at the time of the emergence of Force Majeure has already partially complied with his obligations from the agreement, or shall be able to comply with it, and to the part complied with, respectively to be complied with, an independent value belongs, then BE O is authorized to invoice for the part already complied with or to be complied with, separately. The Customer is required to pay this invoice as if there was an instance of a separate agreement.
Article 6 – Payment and collection costs
Payment must take place within 14 days after the date of the invoice, in a manner to be designated by BE O, in the currency in which was invoiced. BE O is authorized to invoice periodically.
If the Customer remains in default with the timely payment of an invoice, then the Customer is in default by law. The Customer is then liable to pay an interest of 2% per month unless the interest by law is higher, in which case the interest by law is due. The interest over the due amount shall be calculated from the moment that the Customer is in default, until the moment of satisfaction of the full due amount.
BE O has the right to let the payments made by Customer serve in the first place for the reduction of the costs, subsequently for the reduction of the appeared interest and finally for the reduction of the principal sum and the current interest.
The Customer is never authorized to the set-off of the amounts due by him to BE O.
Objections against the height of an invoice, do not suspend the obligation to pay.
If the Customer comes short or is in default with the (timely) compliance with his obligations, then all reasonable costs to obtain satisfaction out-of-court will be or the account of the Customer. The out-of-court costs will be calculated based on what is customary in the collection practice in the Netherlands.is.
Article 7 – Retention of title
All goods delivered by BE O in the framework of the agreement, remain the property of BE O until the Customer has complied with all obligations from the agreement(s) concluded with BE O.
Goods delivered By BE O, which according to the previous, fall under the retention of title, may not be sold onward and may never be used as a means of payment. The Customer is not authorized to place a lien on the goods falling under the retention of title or to encumber these in any other manner.
The Customer must always do all that reasonably may be expected of him, to safeguard the property rights of BE O.
If third parties place an attachment on the goods delivered under retention of title or wish to vest or claim rights thereon, then the Customer is obliged to notify BE O thereof immediately.
The Customer commits himself to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as against theft and to give the policy of this insurance for viewing on first request to BE O/ In case of a possible pay-out by the insurance, BE O is entitled to these monies.
In case BE O wishes to exercise his property rights designated in this article, then the Customer will give in advance unconditional and irrevocable permission to BE O and third parties to be designated by BE O, to access those places where the properties of BE O are located and to take back those goods.
Article 8 – Warranties, inspection and reclamations, statute of limitations
The goods to be delivered by BE O, comply with the requirements and norms that can be set thereto on the moment of delivery and for which they are destined in case of normal use in the Netherlands. The warranty mention in this article is applicable to goods that are destined for the envisaged use within the Netherlands. In case of use outside the Netherlands, the Customer must self-verify whether the use thereof is suitable for the use there and comply with the terms and conditions that are set thereto. BE O can, in that case, other set warranty and other terms and conditions concerning the goods or to be delivered or activities to be executed.
A minute difference with a maximum of 10% with the ink colors and in the color, the form, the size, the quality or the thickness of the printed or the tailor-made article doe in no way justify a complaint or refusal. A deviation may never justify the refusal of the merchandise nor a request for a price reduction.
In the manufacturing of tailor-made articles, a quantity of 2% bad copies shall be regarded as normal. A deviation of around 10% on the ordered quantities will be accepted by the Customer.
The responsibility of BE O does not reach further than the technical features belonging to the ordered articles.
The warranty mentioned in this article applies for a period of 12 months after delivery unless, from the nature of the delivered, it derives otherwise, or parties have agreed otherwise. If the warranty provided by BE O concerns a good that was produced by a third party, then the warranty is limited to that, which is provided by the producer of the good, unless stated otherwise.
Each form of warranty becomes forfeit in case of inexpert or improper use, incorrect storage by the Customer or by third parties, when the Customer or third parties have introduced changes to the good or have tried to introduce these, other goods were attached to it, or if these were processed or treated in another than the prescribed manner. The warranty is a forfeit case of defects as a consequence of circumstances on which BE O can exercise no influence, including weather conditions.
The Customer is required to (let) examine the delivered, on the moment that the goods are made available to him. Possible visible defects must be reported within seven days after delivery in writing to BE O. Possible non-visible defects must be reported immediately, but in any case, no later than within seven days, after discovery thereof, be reported in writing to BE O.
If the Customer makes a timely reclamation, then this does not suspend his obligation to take-off and payment.
If a notification is made of a defect on a later moment, then the Customer has no longer a right repair, replacement or indemnification.
If after timely reclamation, it is established that the good is defective, then BE O shall, at the discretion of BE O replace the good within a reasonable term after return receipt thereof or, if returning is reasonably not possible, or arrange for repair thereof or pay replacement compensation to the Customer.
If it is established that a complaint is not founded, then the costs emerged by it, including the examination costs fallen at the side of Be-O, will come for the account of the Customer.
After expiry of the warranty period, all costs for repair or replacement shall be brought into account to the Customer.
In deviation of the statutes of limitation by law, the statute of limitations of all claims and defenses towards BE O is one year.
Article 9 – Liability
BE O is not liable for damage, of whichever nature, directly or indirectly, that emerged after delivery, emerged by whichever cause, to Customers or goods of Customers, to family members or goods of family members, to third parties or goods of third parties. The previous applies except for instances whereby there is an instance of wilful intent, recklessness or another imputable gross shortcoming. If BE O might be liable for any damage, then the liability of BE O is limited to the maximum of twice the value of the invoice of the product to which the liability refers.
Possible liability of BE O emerges only if the Customer declares BE O in writing in default without delay and properly, thereby setting a reasonable term for the amendment of the shortcoming, and BE O also after that term, continue to come short in the compliance with its obligations.
The notification of default must contain a description as detailed as possible of the shortcoming, which enables BE O to react adequately.
BE O is never liable for indirect damage.
After the shipment of an order, BE O has no influence anymore on the delivery thereof and therefore cannot be held not liable for a possible delay of the shipment. The Customer is responsible for the designation of a correct delivery address. Possible extra costs by an erroneous delivery address are for the costs of Customer.
If a delivery is received damaged, then the Customer can contact BE O via email, in order to reach a solution jointly.
Article 10 – Risk-transfer
The risk of loss, damaging or reduction of value is transferred to the Customer on the moment on which goods for the Customer, are brought under the control of the Customer.
Article 11 – Safeguard
The Customer safeguards BE O for possible claims of third parties, which suffer damage in connection with the execution of the agreement.
Article 12 – Intellectual Property rights
BE O is and remains exclusively the entitled party regarding the (intellectual) property rights (including but not limited to: design rights, name rights, copyrights, personality rights, model rights and databank rights) that rest on all products that have been or will be produced by BE O and on all publications (including but not limited to texts, image material and logo’s/designs) that will be displayed via/on its website(s) and/or other (social) media. Insofar such a right can only be obtained by a depot or registration, the solely BE O is authorized thereto.
BE O grants to business and private end users the right to use BE O’s products within and for the benefit of their own organization or in private, but only after the Customer has complied with all of his (payment) obligations based on the commission.
Without prior written permission of BE O, the Customer is not permitted to transfer this right of use to third parties, other than for private use.
Without prior written permission of BE O, the Customer is not permitted to apply the products for advertising or acquisition purposes.
In case of a use not agreed, broader or otherwise, BE O has a right to compensation because of violation of its rights of at least three times the turnover invoiced to Customer in the previous 12 months, at least a compensation that in reasonableness and fairness is in a proper dimension to the committed violation, notwithstanding the right of BE O to claim a compensation for the actually suffered damage.
Article 13 – Applicable law and disputes
Solely the Laws of the Netherlands are applicable to the agreement, also if execution will be given abroad. The applicability of the Vienna Purchase treaty is excluded.
The court in the court district where the seat of business of BE O is located is exclusively competent to take knowledge of disputes unless the law mandatorily prescribes otherwise.
Article 14 – Location and changes of GTC
These GTC can be found on the website: www.beobottle.com
The Netherlands’ text of the GTC is always decisive for the interpretation.