General Terms and Conditions (for Delivery and Warranty)
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 most recently been modified in September 2018.
Article 1 – General
These GTC are applicable to each offer, quote and agreement between BE O and a Customer, to which BE O has declared these General Terms and Conditions applicable, except if these GTC have been agreed otherwise by parties explicitly and in writing.
General terms and conditions (of purchase or otherwise) of the Customer, are not applicable.
If one or more articles in these GTC should at any time be invalid or be declared invalid, then the remaining articles 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 quotes and offers of BE O are non-binding, unless indicated otherwise. A quote or offer becomes void, when the product to which the quote or offer relates is not available anymore.
BE O cannot be held to its quotes or offers, if the Customer reasonably can understand or could have understood, that the quotes or offers contain an obvious mistake or typo.
Agreements or promises, deviating from a quote, offer or GTC, will only then deemed to have been made, if these have been confirmed by us in writing.
Prices stated in a quote 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 indicated otherwise.
A composed quote does not commit BE O to the execution of a part of the quote, for the relative 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 correctly represent the agreement.
BE O has the right to introduce price changes without announcement. BE O cannot be held to erroneous price statements caused by 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 has been agreed, then this is never a firm date or deadline. In case of exceeding such a date, the Customer must give notice of default to BE O in writing, indicating a reasonable period to still execute the agreement.
The period of execution does not start earlier than after the Customer has made all necessary data available to BE O correctly and completely.
Delivery takes place ex-works of BE O or its production location. The Customer has the obligation to accept the products at the moment that these are made available to him. If the Customer refuses acceptation or is negligent with the provision of information or instructions that are necessary for the delivery, then BE O is authorized to store the products for the account and the risk of the Customer.
BE O has the right to subcontract certain activities to 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 appears 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 change the agreement. BE O shall, in that case, submit a quote in advance, when possible.
If the agreement is changed, then BE O is authorized to only start executing it after the Customer has agreed the price and other terms and conditions, including the starting time. The not immediate execution of the changed agreement does not result in breach of contract by BE O and is also not a reason for the Customer to cancel the agreement. BE O can refuse a request to change the agreement without giving any reason.
If the Customer should enter in default in proper compliance with the agreement, then the Customer is liable for all of BE O’s damages.
If BE O agrees a fixed price with the Customer, then is BE O nevertheless authorized to increase this price if the increase of the price is caused by laws or regulations or finds its cause in a price increase of raw materials, wages, etc.
The party that gives a print or reproduction order, is 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 compliance with the obligations, or to dissolve the agreement, if:
- the Customer does not, not fully or not timely complies with the obligations of the agreement;
- after the conclusion of the agreement, circumstances come to the knowledge of BE O that 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 maintenance of the agreement cannot in reasonableness be required of BE O.
If the dissolution is accountable to the Customer, then BE O is entitled to compensation of all damages.
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 free to cancel the agreement 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.
If the Customer cancels a placed order entirely or in part, then the products ordered or made ready for it, added with certain costs of supply and delivery thereof and the labor time reserved for the execution of the agreement, shall be integrally charged to the Customer.
If the agreement is dissolved, then all receivables and the claims of BE O on the Customer will be immediately payable.
Article 5 – Force Majeure
BE O is not required to comply with the agreement towards the Customer if BE O is being hindered thereto as a consequence of a circumstance that is not its fault, and neither based on the law, a legal act or opinion is attributable to BE O.
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, on which BE O can exercise no influence, including work strikes within BE O or third parties.
BE O can, during the period that the Force Majeure continues, suspend its contractual obligations. If this period lasts longer than two months, then each of the parties is authorized to dissolve the agreement, without any obligation to compensate damages to the other party.
For as much as BE O at the time of the start of Force Majeure already has partially complied with its contractual obligations, or still shall be able to comply with these, and to the part complied with, respectively to be complied with, an independent value can be assigned, then BE O is authorized to invoice separately for the part already complied with or to be complied with. The Customer is required to pay this invoice as if there was 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 statutory interest is higher, in which case the statutory interest is due. The related interest shall be calculated from the moment that the Customer is in default, until the moment of payment 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 costs, subsequently for the reduction of the interest and finally for the reduction of the principal sum and the current interest.
The Customer is never authorized to settle amounts payable to BE O with potential amounts receivable from BE O .
Objections against 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 payment out-of-court will be for 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.
Article 7 – Retention of title
All products delivered by BE O under the agreement, remain the property of BE O until the Customer has complied with all obligations from the agreement(s) concluded with BE O.
Products delivered by BE O, which according to the previous sentence are included under the reservation of title, may not be sold onwards and may never be used as a means of payment. The Customer is not authorized to place a lien on the products included under the reservation of title or to encumber these in any other manner.
In order to safeguard BE O’s property rights, the Customer must always do all that reasonably may be expected of him.
If third parties impound products delivered under reservation 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 products delivered under reservation of title against fire, explosion and water damage as well as against theft and to provide the terms of this insurance for review to BE O on its first request. In case of a possible pay-out by the insurer, BE O is entitled to these funds.
In case BE O wishes to exercise its 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 collect those products.
Article 8 – Warranties, inspection and reclamations, limitation period
The products to be delivered by BE O, comply with the requirements and standards that can be set thereto on the moment of delivery and for which they are meant for normal use in the Netherlands. The warranty mentioned in this article is applicable to products that are destined for 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 in that country and comply with the terms and conditions that are set thereto. BE O can, in that case, set other warranty and other terms and conditions concerning the products or activities to be executed.
A minimal difference with a maximum of 10% related to the ink colors and in the color, the form, the size, the quality or the thickness of the printed or the tailor-made article does 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.
When producing tailor-made products 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 products.
The warranty mentioned in this article is for a period of 12 months after delivery unless, from the nature of the delivered products, it derives otherwise, or parties have agreed otherwise. If the warranty provided by BE O concerns a product that was manufactured by a third party, then the warranty is limited to the period that is provided by the manufacturer of the product, 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 product 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 not valid in case of resulting 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 product(s) the moment that the product(s) is made available to him. Possible visible defects must be reported within seven days after delivery to BE O, in writing. Possible non-visible defects must be reported immediately, but in any case, no later than seven days after discovery thereof, be reported in to BE O, in writing.
If the Customer makes a timely reclamation, then this does not suspend his purchase commitment and obligation to pay.
If a notification is made of a defect on a later moment, then the Customer has no longer a right for repair, replacement or indemnification.
If after timely reclamation it is established that the product is defective, then BE O shall, at the discretion of BE O replace the product within a reasonable period after receipt of return 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 justified, then the costs resulting from this, including BE O’s examination costs, will be at the expense of the Customer.
After expiry of the warranty period, all costs for repair or replacement shall be at the expense of the Customer.
In deviation to the statutory time limitation by law, the time limitation of all claims and defenses towards BE O is one year.
Article 9 – Liability
BE O is not liable for damages, of whatever nature, directly nor indirectly, that emerged after delivery, emerged by whichever cause, to Customers or goods or assets of Customers, to family members or goods or assets of family members, to third parties or goods or assets of third parties. The previous does not apply to cases whereby there is willful intent, recklessness or another imputable severe shortcoming. If BE O might be liable for any damage, then the liability of BE O is limited to a maximum of twice the invoiced value of the product to which the liability refers.
Any possible liability of BE O emerges only if the Customer notifies BE O, in writing, properly and without delay, that BE O is in default, thereby setting a reasonable term for the remediation of the shortcoming, and BE O also after that period, continues to fail to comply with its obligations.
The notification of default must contain a description of the shortcoming as detailed as possible, which enables BE O to react adequately.
BE O is never liable for indirect damages.
After shipment of an order, BE O has no influence anymore on the delivery thereof and therefore cannot be held liable for any 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 account of Customer.
If a delivery is received with damages, then the Customer can contact BE O via email, in order to reach a joint solution.
Article 10 – Risk-transfer
The risk of loss, damages or reduction of value is transferred to the Customer at the moment on which products for the Customer are brought under the Customer’s control.
Article 11 – Indemnification
The Customer indemnifies BE O for possible claims of third parties, which suffer damages 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) with respect to 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, 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 agreement.
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 use BE O’s products for promotion or acquisition purposes.
In case of a not agreed use, broader or otherwise, BE O has a right to compensation based on violation of its rights of at least three times the invoiced value to Customer in the previous 12 months, at least a compensation that in reasonableness and fairness is in proportion to the committed violation, notwithstanding the right of BE O to claim a compensation for the actually suffered damages.
Article 13 – Applicable law and disputes
The laws of the Netherlands are exclusively governing the agreement, also if execution of the agreement will be given abroad. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (“Vienna Sales Convention”) is excluded.
The court in the court district of BE O’s seat of business is exclusively competent to take knowledge of disputes, unless the Netherlands’ law mandatorily prescribes otherwise.
Article 14 – Location and changes of GTC
These GTC can be found on the website: www.beobottle.com
The Dutch text of the GTC is always leading at the interpretation thereof.