Terms of delivery and payment of the limited liability company Enrico Benetti BV established and having a office in Oud-Beijerland, the Netherlands.
Art. 1. Applicability
1. These terms of delivery and payment apply to all tenders of, agreement with, deliveries of and activities carried out by Enrico Benetti BV, hereinafter to be referred to as Enrico Benetti. Deviation clauses, agreements or arrangements apply only if and in so far as they have been confirmed by Enrico Benetti in writing. If a provision of these terms applies to consumers only or to non-consumers only, this shall be stated.
2. By entering into an agreement with Enrico Benetti the other party relinquishes any terms of whatever nature used by it, so that the terms used by Enrico Benetti apply exclusively to all agreements.
3. If the other party is a consumer who agrees on an adaption of these terms with Enrico Benetti, it is encouraged to confirm this adaption in writing in order to avoid misunderstandings about the expectations of parties.
4. Every order of products shall be deemed an offer on the part of the other party to purchase products subject to these terms.
Art. 2. General
1. ‘the other party’ is understood in these general term as: every legal or natural person who has entered into an agreement with Enrico Benetti or wishes to do so. ‘consumer’ is understood as a natural person not acting in his/her professional or business capacity an ‘non-consumer’ is understood as every legal or natural person acting in his/her professional or business capacity.
2. Changes to an agreement which might give rise to adverse effects for Enrico Benetti as well as cancellation of an agreement are not binding without Enrico Benetti consent, unless such change or cancellation could be claimed by law or in so far as this is provided for in these terms.
3. Clauses based on which Enrico Benetti undertakes an obligation to deliver without the other party undertaking to purchase the goods concerned, or based on which the quantity and/or price of the goods to be delivered successively to be purchased are subject to any restrictions are not binding.
Art. 3. Tenders and quotations
1. All tenders and quotations made by Enrico Benetti are without any obligation unless the contrary has been expressly stated. Sending quotations in any form does not commit Enrico Benetti to deliver.
2. Enrico Benetti in entitled to refuse an order without stating grounds.
Art. 4. Conclusion of an agreement
1. Enrico Benetti is not bound by its written tenders and by orders placed with Enrico Benetti by the other party until Enrico Benetti has confirmed their acceptance in writing.
2. Supplementary arrangements, changes and/or promises made later and in deviation from paragraph 1, either oral or in writing, by persons not authorised by the articles of association, or those who have not been granted power of attorney are not binding, unless confirmed by Enrico Benetti and the other party in writing.
3. In case the other party appears not to be sufficiently creditworthy for the performance of the agreement, such to the discretion of Enrico Benetti, Enrico Benetti is entitled to suspend all its contract obligations, without prejudice to the rights belonging to Enrico Benetti by law or pursuant to the presents terms.
4. Customers are entitled to cancel the purchase agreement unilaterally without stating the reasons within 7 (seven) days after receipt of the products. In that case Enrico Benetti is entitled to require a written confirmation therof by the consumer.
Art. 5. Prices en Rates
1. All quotations submitted by Enrico Benetti are without obligation and subject to price changes, unless expressly stated otherwise.
2. Prices given by Enrico Benetti are based on factors that determine the (cost) price and apply on the day on which the agreement is concluded. If prior to delivery or, if delivery takes place in instalments, during delivery said factors result in an increase of the (cost) price, Enrico Benetti is entitled to charge a pro rata increase to the other party.
3. The prices stated by Enrico Benetti are always excluding of VAT, import duties, other taxes, levies and rights, unless expressly stated to the contrary. Enrico Benetti is entitled to pass on any change in these rates to the other party.
4. In case of purchases by consumers the price and other costs, including those of transport, are clearly stated in the tender and/or order confirmation and in the invoice.
5. If the other party is a consumer, said consumer is entitled to dissolve the agreement if the price increase takes place within three monts after concluding the agreement.
Art. 6. Delivery
1. Delivery takes place free domicile or warehouse of the other party unless expressly agreed otherwise in writing. For shipments having an invoice amount of less than 450,00 euro an additional charge shall be levied for handling by the other party shall also be charged additionally. The manner of forwarding and the means of transport are at the discretion of Enrico Benetti.
2. Delivery is deemed to have taken place at the moment on which the goods leave the warehouse of Enrico Benetti. From the moment of delivery the goods are at the risk of the other party. In case of delivery to consumers the risk passes to the consumer from the moment of delivery of the products.
3. All delivery periods stated by Enrico Benetti are approximations only and are never binding. The stated delivery period has no fatal character unless expressly agreed otherwise. If the delivery period is exceeded by more than 30 (thirty) days, cases of force majeure excepted, the other party is entitled to fix a reasonable time in writing for Enrico Benetti to deliver as yet. If Enrico Benetti does not deliver within that time, the other party is entitled to cancel the order without any claim to compensation.
4. Untill the time of delivery consumers are entitled to cancel the agreement unilaterally if delivery has not taken place within 30 (thirty) days after the agreed delivery date, without any claim to compensation. If the consumer wishes to avail him/herself of this right, he/she must notify Enrico Benetti of this in writing prior to delivery.
Art. 7. Storage
1. The other party is obliged to take possession of that which he/she has purchased within the agreed period. If the other party does not take possession of the goods prior to the expiry of the delivery period and/or it the other party refuses the goods, Enrico benetti is entitled to declare the agreement, in so far as it has not been performed, dissolved without prior notice of default and without prejudice to Enrico benetti its right to claim full compensation of the damage it has incurred. The incurred damage shall be assessed at at least 50% of the selling price of the part that was not taken possession of. If the other party is a consumer, Enrico benetti shall remain entitled to the full selling price.
2. If so desired, Enrico benetti may opt to store the goods in its warehouse or elsewhere, such at the expense and risk of the other party, including the risk of loss of quality. As a result of such storage the goods are deemed to have been deliverd. Enrico benetti shall, without delay, notify the other party in writing of this storage and send the invoice for delivery.
Art. 8. Force majeure
1. In case of force majeure, both of a permanent and of a temporary nature, Enrico benetti is authorised to cancel or temporarily suspend the agreement wholly of partially without the other party and/or third parties having a claim to performance and/or compensation. Force majeure is understood as, among other things but not solely: threat of war, war, rebellion, acts of war, strikes, boycott, interruption of operations, disturbances in traffic or transport, natural disasters, fire, atomic reactions, machinery breakdown and all other circumstances as a consequence of which whole or partial performance of the agreement cannot in reasonableness and fairness be required of Enrico benetti.
2. If force majeure commences while Enrico benetti has already partly performed the agreement, or can only partly meet its obligations, Enrico benetti is authorised to invoice that which has already been delivered or can be delivered separately and the other party is obliged to pay this invoice as though it concerned a separate contract.
Art. 9. Liability
Enrico benetti is not liable for any direct or indirect damages which might arise for the other party or third parties as a consequence of the use of Enrico benetti its products, unless stipulated otherwise by the applicable legal regulations and/or the present terms, in which case Enrico benetti liability towards:
- the other party who is not a consumer is limited to compensating the direct damages, not being trading lose, loss of profits, or other consequential less, of the other party with a maximum of EUR 53000.”per event: and
- a third party, in so far as Enrico benetti liability towards this third party would extend further than Enrico benetti liability towards the other party, is limited to compensating the damage incurred by this third party as though the damage were incurred by the other party and the other party indemnifies Enrico benetti against the surplus.
- the other party who is a consumer is, with regard to damages to objects, limited in all cases to the amount of at most the invoice amount of the part of the agreement from which the liability arises.
Art. 10. Complaints/ non-conformity
1. Complaints are understood as all grievances of the other party regarding the quality of a delivery, not being deviations with regard to the technical execution and the model which are permitted to the manufacturer and Enrico benetti, in so far as these do not detract from the value of the delivered goods.
2. The other party is obliged to examine the delivered goods, including the packaging, for deficits and/or damages immediately on delivery, or to do so after Enrico benetti has notified the other party that the goods are at the other party’s disposal.
3. Observed deficits and/or damages shall be stated on the invoice/consignment note on delivery by the other party who is not a consumer, in the absence of which the other party is deemed to have accepted the delivered goods. Complaints in this respect will no longer be dealt with.
4. Complaints by non-consumers are only enforceable if they have been submitted in writing and the notification of the complaint, is in Enrico benetti its possession within 8 (eight) days after delivery, without prejudice to the provisions of the following paragraphs. Consumers are obliged to notity Enrico benetti within a reasonable period after discovery of the non-conformity or visible deviations from the order confirmation.
5. In case of justified complaint Enrico benetti is obliged to replace the goods which caused the complaint as soon as possible without Enrico benetti being held liable for incurred damages.
6. Submitting a complaint does not suspend the other party’s obligation to pay for the disputed goods.
7. Goods which give rise to complaints shall only be returned if Enrico benetti agrees to this. The costs and risk attached to forwarding of goods carriage paid to the address appointed by Enrico benetti and forwarding again to the other party shall be borne by the other party.
Art. 11. Warranty
1. Enrico benetti warrants the reliability and quality of the goods delivered processed by it, all this subject to the provisions elsewhere in these terms.
2. A warranty for goods purchased by Enrico benetti elsewhere is only issued if and in so far as the manufacturer/supplier concerned offers any warranty.
3. Claims under a warranty shall only comprise repairing of having repaired any structural and/or manufacturing defects. All damage, both direct and indirect, which results form faulty functioning of the goods delivered by Enrico benetti is not covered by the warrant, unluss the damages is the result of gross negligence or intention of Enrico benetti.
4. Claims to warranty are not recognized if the manufacturer’s instructions have not been complied with when using the article, if the delivered article is used for other than the normal purposes or is treated, used or maintained injudiciously.
5. The warranty does not cover repair or modification of the delivered article by the other party without consultation of or written consent from Enrico benetti.
6. If the other party does not meet tis obligation(s) as a result thereof.
Art 12. Repair work
1. Repairs of goods delivered by Enrico benetti shall be carried out with due observance of that which is provided elsewhere in these terms and to the best of Enrico benetti its ability.
2. Enrico benetti in liable for theft, loss or damage of goods submitted for repair, unless Enrico benetti is to blame for gross negligence or intention.
3. If it has been agreed with the other party that the repaired goods will be collected by said party and it violates this obligation after repeated written notification that the goods are ready, Enrico benetti is authorised to sell the goods.
1. All payments shall be made in advance or by transferring the amount due to a bank or giro account to be appointed by Enrico benetti within 30 (thirty) days after the invoice date, unless the other party is a consumer. In that case payment shall be made in advance at the time stated on the order confirmation by transferring the amount due to a bank or giro account appointed by Enrico benetti. Only then will the order be dealt with.
2. In case of payment through giro or bank the day on which Enrico benetti its giro or bank account is credited shall be considered the date of payment.
3. Enrico benetti is not obliged to draw the other party’s attention to the expiry of a term of payment or to send it extracts of the bank’s records and the like, unless agreed otherwise.
4. The other party is never authorised to suspend payments nor can it appeal to any right to settlement. After the term of payment has expired, the other party is in default without further notice of default being required.
5. Without prejudice to other rights belonging to Enrico benetti, Enrico benetti is authorised to charge interest on the amounts in arrears at an interest rate of 1.5% per month, for each month of part thereof counting form the expiry date, being 30 (thirty) days after the invoice date.
6. All collection charges, including both judicial and extrajudicial collection costs shall be at the other party’s expense. The extrajudicial collection costs are estimated in conformity with the report ‘Voorwerk II’ (Preliminary work II) at two points of the applicable winding up rate, without prejudice to Enrico benetti its right to claim the actual extrajudicial costs if these should amount to a higher total. Actual costs are understood as the usual rates of a lawyer, bailiff or debt-collection agency engaged by Enrico benetti if so required, as well as internal costs.
7. Enrico benetti is always entitled to require security for payment both prior to and after the conclusion of the agreement. The above under suspension of the performance of the agreement by Enrico benetti until security has been provided; all this without prejudice to Enrico benetti its right to the performance, compensation and/or full or partial cancellation without Enrico benetti being required to pay any compensation in this connection.
Art 14. Retention of title
1. All dilvered goods remain Enrico benetti its property as long as the other party has not fully met is obligations to pay in the matter.
2. If the law of the state of destination of a product destined for export is more favourable for Enrico benetti, parties can agree that the consequences of title retention under law of biens shall be governed by the law of the state of destination.
3. The other party is obliged to ensure the careful treatment of delivered goods and is not authorised to cede, surrender, pledge or give goods as security to any third parties, to remove them or have them removed from the location where they were deilverd until the full purchase price and any additional costs have been fully paid.
4. Each payment shall go to reduce any (collection) costs and interest due and then to pay the oldest invoice that remained unpaid.
Art. 15. Trademarks and models right
1.Enrico benetti has, among other things, the licence to the (word) trademark rights Enrico Benetti, Repakz, and the licence to the models right model bag’.
2.Without Enrico benetti its express written consent the trademarks and models of which Enrico benetti is licensee may not bee copied or imitated, with or without slight deviations form the original, all this under penalty of a fine of EUR 2500,- for each day that the violation lasts, without prejudice to the right of licensee (Enrico benetti) and the model and trademark owner to use the possibilities offered by the law.
Art. 16. Dissolution
1. Without prejudice to the other rights belonging to Enrico benetti and the provisions elsewhere in these terms, Enrico benetti is authorised, without being bound on account of this authority to any compensation, to dissolve its agreement with the other party wholly or partially by registered post with immediate effect and without judicial intervention if the other party:
- Applies for a moratorium of payments, bankruptcy proceedings are instituted against it, it wholly or partially loses the power to dispose of its capital and/or income, incurs losses on any component of its possessions and/or equity, or any item of its possessions and/or equity is attached and, in case the other party sells or winds up its company, the other party fails to meet one or more of its obligations under the agreement concerned or fails to meet these timely or properly and it has not terminated this failure within 7 (seven) calender days after a written warning by Enrico benetti to do so.
2. If Enrico benetti exercises its authority in accordance with paragraph 1 of this article, Enrico benetti is also authorised with regard to the other party who is not a consumer to take back at any time the objects which remained unpaid for without prior notice and at the other party’s expense and risk and Enrico benetti shall be authorised by the other party to enter the other party’s premises in order to take back the goods in this way. In case of such dissolution Enrico benetti is entitled to compensation of the damage it has suffered as a result of this, which damage shall at least amount to 50% of the selling price of the order concerned.
3. In case of dissolution of the agreement by a consumer within 7 (seven) days after delivery as described in article 4, paragraph 4 of these terms, the risk and cost of returning the goods shall be borne by the consumer. The purchase price which was paid by the consumer and was applicable to the dissolution shall be paid back to the consumer by Enrico benetti within 30 (thirty) days after dissolution.
If and in so far as a provision of these terms is considered unreasonably onerous towards the other party who is a consumer (being a natural person not acting in his/her professional or business capacity) and said other party annuls said clause, the annulled clause shall be replaced by a clause which is not unreasonably onerous but protects Enrico benetti its interests as well as possible.
Enrico benetti is authorised to modify the presents terms. Modificatoins shall also apply to agreements wich have already been concluded. Enrico benetti shall make these modifications known in good time. The other party is authorised to terminate the agreement effective from the date on which the modified terms come info force, if it does not wish to accept the modified terms.
Art. 19. Currency clause
Enrico benetti reserves the right to cancel the agreement if changes occur in the currency relation between the Netherlands and one or more of Enrico benetti its suppliers.
Art. 20. Disputes
1. Dutch law applies exclusively to all agreements concluded by Enrico benetti.
2. All disputes of whatever nature which might arise between Enrico benetti and the other party, including the taking of preliminary or protective measures, shall be settled by the competent court of Enrico benetti its business address, without prejudice to Enrico benetti its right to choose the court provided for in legislation. If that is a different court from the court of Enrico benetti its business address and Enrico benetti submits the dispute to the court of Enrico benetti its place of business, the other party who is a consumer is authorised to choose the court which has jurisdiction according to the law for settlement, within 6 (six) weeks after Enrico benetti has invoked this clause in writing.