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STANDARD CONDITIONS OF SALE AND DELIVERY
seeh. BV – Dwarsweg 45-47 – 5301 KB Zaltbommel – The Nederlands
hereinafter referred to as: seeh.
Article 1 Definitions
- In these general terms and conditions the following terms are used in the following meaning, unless explicitly stated otherwise:
- seeh.: the user of the general terms and conditions of presale and delivery also acting under the name Hans Anders Zakelijk and Werkbrillen.nl;
- Buyer: The other party of seeh., acting in the performance of a profession or undertaking
- Agreement: The agreement between seeh. and buyer
- Hans Anders: The part of Hans Prijsoptiek B.V. consisting of a chain of shops;
- User: The natural person who will use a product purchased by the buyer
Article 2 General
- The provisions of these general terms and conditions apply to each offer and to any agreement between seeh. and a buyer on which seeh. has declared these conditions applicable, insofar as parties have not deviated from these conditions explicitly and in writing.
- The present conditions also apply to all agreements with seeh., for the execution of which third parties should be involved.
- The general terms and conditions of the buyer only apply if it has been expressly agreed in writing that they are applicable to the contract with the exclusion of these terms and conditions. In that case, any conflicting provisions in the general terms and conditions of seeh. and buyer only apply between parties, if and insofar as they are part of the conditions of seeh.
- If one or more provisions in these general terms and conditions prove to be null and void or are nullified, the remaining provisions of these general terms and conditions will continue to apply. seeh. and buyer will then consult in order to agree on new provisions to replace the void or annulled provisions, in which connection, if and insofar as is possible, consideration shall be given to the purpose and tenor of the original provision.
- Any deviation from these conditions only applies once or for a clearly specified time period and is only effective after written confirmation.
Article 3 Offers and tenders
- All offers are without engagement, unless a term for acceptance is mentioned in the offer.
- The offers made by seeh. are without engagement; they are valid for thirty days, unless otherwise indicated. seeh.is only bound to the offers if the acceptance hereof is confirmed by the buyer in writing within thirty days.
- Delivery times mentioned in offers made by seeh.are indicative only and where exceeded shall not entitle the buyer to dissolution or compensation, unless explicitly agreed otherwise.
- The prices in the mentioned offers and tenders are net of VAT and other government taxes, as well as shipping and any transport and packaging costs, unless explicitly stated otherwise.
- If the acceptance (on subordinate points) deviates from the offer included in the quotation seeh.shall not be bound to it. In such case the agreement will not come into being in accordance with such divergentacceptance, unless otherwise indicated by seeh.
- A combined quote will not oblige seeh. to supply any part of the goods included in the offer or tender at a corresponding part of the specified price.
- Offers or tenders shall not automatically apply in respect of repeat orders.
- In the case of multiple clients being parties to an agreement, they all will be jointly and severally bound to the fulfillment of the obligations towards seeh.
Article 3.2 Providing an assignment
- An agreement between seeh.and buyer is created by:
- placing an order via the website of seeh.or;
- handing over a purchase order by a user at a Hans Anders branch.
- After the provision of the order forms by seeh.the buyer is completely responsible for the issuance of these order forms.
- A purchase order must be provided with the name and address of the buyer, order form numbers and issue date.
- Copies of purchase orders are not valid and will not be accepted.
- The purchase orders must be returned in full:
- 1st copy, destined for seeh.
- 2nd copy, destined for Hans Anders
- 3rdcopy, destined for the employee
Article 4 Execution of the agreement
- seeh. will execute the agreement to itsbest of its knowledge and ability and in accordance with the requirements of good craftsmanship, and based on the knowledge available at that time.
- If and insofar as this is required for the proper execution of the agreement, seeh. shall be entitled to have specific activities carried out by third parties.
- The buyer shall ensure that all data of which seeh. indicates that they are necessary or of which the buyer should reasonably understand that they are necessary for the execution of the agreement, will be provided to seeh. in good time. If seeh. has not been provided timely with the data necessary for the implementation of the agreement,seeh. is entitled to postpone the implementation of the agreement and/or to charge the extra costs resulting from the postponement to the buyer, in accordance with the then usual rates.
- seeh. is not liable for damage, of whatever nature, due to seeh. working on the basis of incorrect and/or incomplete data provided by the buyer, unless any such inaccuracies or incompleteness should or would have been known to seeh.
- If parties have agreed that the agreement will be executed in stages, seeh. can suspend the execution of the parts belonging to a following stage until the client has approved in writing the results of the stage prior to it.
- In the event that work is performed by seeh. or by third parties engaged by seeh. on the site of the buyer or at a location designated by the buyer in the context of the assignment, the buyer shall provide any facilities reasonably required by the employees of the buyer, free of charge.
- Buyer shall indemnify seeh. from any possible claims filed by third parties who may sustain damage attributable to buyer in connection with the execution of the agreement.
Article 5 Delivery
- Delivery takes place:
- by picking up the goods at the warehouse of seeh.or;
- by picking up the goods at a Hans Anders branch or;
- by delivery to the buyer from the warehouse of seeh.
- The buyer is obligated to take possession of the purchased goods atthe time the goods are made available to him. The moment of disposal shall be the end of the period within which the goods can be picked up, or – if transport or dispatch has been agreed upon by seeh. – the moment (at the discretion of seeh.) at which seeh. offers the goods to the agreed address.
- Call-off orders which have not been called in full by the buyer within the agreed term give seeh. the right to send the goods not yet called to the buyer. The buyer is obliged to accept and pay the goods.
- In the event that the buyer refuses acceptance or omits to furnish the information or instructions which are necessary for delivery, seeh. will be entitled to store the goods for the account and risk of the buyer.
If the buyer continues to refuse to take off for the duration of 14 days, seeh.will be entitled to dissolve the agreement, whereby the buyer remains liable for 100% of the transaction value, plus interest and costs, and without prejudice to the right to compensation for actual or higher damage.
- In the event that the goods are delivered seeh.will be entitled to invoice for any delivery costs. These will then be invoiced separately.
- If seeh. requires information from the buyer within the context of the agreement’s performance, the delivery period will commence after the buyer has made such information available to seeh.
- In the event that seeh. has indicated a time for delivery, such time will be by way of indication. A stated delivery date may therefore never be considered a firm deadline. In the event that a delivery period is exceeded, the buyershall declare in writing that seeh. is in default.
- seeh. shall be entitled to deliver the goods in parts, unless this provision is deviated from by agreement or if the partial delivery does not represent an independent value.
- Customer-specific goods are only kept in stock after a separate agreement has been signed. The agreed stock level must always be taken within 12 months. Upon termination of the contract, the buyer must take the remaining stock within 1 month. If deliveries are not taken in time seeh.has the right to invoice non taken customer-specific inventory. The buyer is then obliged to pay that invoice regardless of any call and/or delivery.
Article 6. Right of withdrawal (cancellation)
- After the contract has been concluded, the buyer has the right to cancel the order up to 14 days after receipt of the case, albeit that seeh. can always attach conditions to such cancellations, at its discretion.
- The conditions that seeh. shall adopt in the event of cancellation after dispatch of the ordered goods are at least (without prejudice to the right to set more and other conditions):
- The return of the goods must be complete, undamaged and unused, including accompanying documentation and guarantee certificates and including a copy of the invoice from seeh.
- The goods to be returned must be properly packaged in their original packaging and on the outside clearly provided with the details of the buyer and the order. The buyer is responsible for any damage or loss during the transport, as a result of the non-proper packaging of the goods to be returned.
- De return of the goods shall be carried out at the buyer’s expense.
- Depreciation of returned products for any reason whatsoever will be borne by the buyer.
- The right to cancel does not apply in case of:
- Software, image or sound carriers or computer software, the sealing of which has been broken;
- Products ordered or composed specifically for buyer/user
- The supply of goods which are not suitable to be returned for reasons of health protection or hygiene and of which the sealing has been broken after delivery;
- Specially for buyer/user cutomized or custom made products;
- ‘While supplies last’ products;
- Products of which seeh. expressly states that the right of withdrawal does not apply;
- All items that are manufactured according to the specifications of the buyer/user and that are manufactured on the basis of an individual choice or decision of the buyer/user, or that are clearly intended for a specific person.
- After correct receipt of the return delivery buyer will receive the reimbursement of the amount paid by him within 30 days, in accordance with the above mentioned conditions.
Article 7 Samples en models
- If a sample or model has been displayed or supplied to buyer, then the assumption is that such has been given by way of indication only, unless parties agree explicitly that the product to be delivered shall correspond with it.
Article 8 Research, complaints
- The buyer is will be required to examine the goods delivered at the time of delivery or, in any case, as soon as possible.
In this connection the purchaser must ascertain whether the quality and quantity of the goods delivered corresponds to the agreement or at least meets the requirements applicable thereto in normal (commercial) dealings.
- Any visible defects or deficiencies must be reported to the seeh. in writing within 3 days after delivery. Non-visible defects or deficiencies are to be reported within three weeks after discovery but not later than 12 months after delivery.
- If, pursuant to the preceding paragraph, a complaint is made in good time, the buyer shall remain obliged to purchase and pay for the purchased goods. If buyer wishes to return defective goods, this shall be done with the prior written consent of seeh. in the manner as indicated by seeh.
- As long as the payment obligation has not been fulfilled, seeh.will not deal with the complaints. seeh.always has the right to request an additional security or payment in the case of a complaint, pending the question of whether the complaint is justified, whether or not on the trust account of a lawyer or notary to be appointed by seeh., before dealing with a complaint.
Article 9 Payments, price and costs
- If seeh. and buyer have agreed upon an administered price, seeh. shall nevertheless be entitled to increase said price if interim price changes have occurred.
- seeh. may, inter alia, pass on price increases if significant price changes have occurred between the time of the offer and the implementation of the agreement, in respect of, for example, exchange rates, wages, raw materials, semi-manufactured goods or packaging materials.
- The prices applied by seeh. are exclusive of VAT and any other charges, as well as any costs to be incurred in connection with the agreement, including small order costs (shipping and handling costs), unless otherwise indicated.
- Prices as stated on the website are subject to typing errors or (not yet implemented) price changes. Prices as mentioned in the webshop may differ from the prices in the store. The buyer cannot derive any rights from this.
Article 10 Amendment of the agreement
- If, during the implementation of the agreement, it appears that for an adequate execution it is necessary to modify and /or complete the concerned activities, both parties will in a timely fashion and by mutual agreement adjust this agreement.
- In the event that the parties agree that the agreement will be amendedor supplemented, this may affect the completion time with respect to the agreement’s performance. seeh. will inform buyer thereof as soon as possible.
- In the event that any such amendment or supplement has financial and/or quality-related consequences, seeh. shall inform the buyer of this beforehand.
- If a fixed fee is agreed on, seeh. shall stipulate in this respect to what extent the change or addition will result in an excess over and above this fixed fee.
- Contrary to the conditions governing this matter, seeh. shall not be able to charge additional costs if the change or supplement is the result of circumstances attributable to seeh.
Article 11 Payment
- Payments are due within 30 days of the invoice date (unless any different period has been agreed in writing), in a manner to be indicatedby seeh. (bank transfer or direct debit) and in the currency in which the invoice has been raised. Objections to the value of invoices shall not suspend the obligation to make payment.
- In case the direct debit authorisation has been granted by handing in an order form made available by seeh.to a branch of Hans Anders, payment will take place in accordance with the regulations and procedures of Interpay BV.
- If the buyer, for whatever reason, fails to pay the amount due within the 30-day period, the buyer is legally in default. The buyer will then owe an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest rate will apply. The interest on the amount due will be calculated from the moment that the buyer is in default until the moment of payment of the full amount.
- In the event of liquidation, bankruptcy, attachment or suspension of payments on the part of the buyer, the claims of seeh. against the buyer shall fall due for payment with immediate effect.
- seeh. shall be entitled to use the payments made by the buyer first to settle costs, then the interest that has fallen due and finally the principal and current interest.
- seeh. can refuse a payment offer, without that being in default, if the buyer indicates a different order of allocation.
- seeh. shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.
- seeh. has at all times the right (yet) to require payment or to have the buyer provide security for payment, which must be complied with immediately.
- Payment needs to take place without discounts or calculations and without the right of the other party to (precautionary) seizure at the expense of seeh.
Article 12 Retention of title
- All items delivered by seeh., including any designs, sketches, drawings, films, software, (electronic) files, etc., shall remain its property until thecustomer has complied with all obligations from all agreements entered into with seeh.
- The buyer may not pledge the goods that are subject to retention of title nor encumber them in any other manner.
- If third parties impound products supplied subject toreservation of title, or intend to establish or claim rights to such products, the buyer is obliged to inform seeh. thereof as soon as may reasonably be expected.
- The purchaser has the obligation to insure the goods delivered subjectto retention of title, to keep these goods insured against theft, fire, explosion and water damage and to submit this insurance policy to seeh. for inspection at the first request.
- Products supplied by seeh. which by virtue of paragraph 1 remain subject to the retention of title, may be sold on only in the normal pursuance ofclient’s business or profession and may never be used as a means of payment.
- In case seeh. would wish to exercise its rights of retention as referred to in this article, the buyer will in advance give seeh. and any third party to be designated by seeh. its unconditional and irrevocable permission to access all such places where the properties of seeh. are located, and to repossess such goods.
Article 13 Warranty
- seeh. warrants that the products and/or services comply with the contract, the listed specifications of the offer, to the reasonable requirements of soundness and/or usability, and at the date of the conclusion of the contract existing legal provisions and/or Government regulations.
- The Consumer is only entitled to a guarantee if and insofar as seeh.is (still) guaranteed by the supplier of seeh. or the manufacturer, except insofar mandatory legal provisions stipulate a more extensive guarantee or that parties have explicitly and in writing have agreed otherwise. seeh. is not held to further guarantee or liability.
- The guarantee mentioned under 1 shall equally apply if the goods to bedelivered are destined for use abroad and if the buyer explicitly informed seeh. of this use in writing the moment the agreement was entered into.
- If the goods to be delivered do not comply with these guarantees, seeh. shall replace the goods within a reasonable period after receipt thereof or, if return is reasonably impossible, after written notification of the defect by the buyer, at the discretion of seeh., replace or arrange for recovery. In case of replacement, the buyer undertakes to return the replaced goodto seeh. should the occasion arise and to grant seeh. title to the good.
- The called guarantee does not apply when a defect has arisen as a result of injudicious or improperly use, or when the buyer or third parties have introduced modifications or try to introduce on the goods, or have usedthe goods for aims for which the goods are not intended.
- The consumer is only entitled to a guarantee towards seeh. if the consumer has fulfilled all payment obligations towards seeh.
Article 14 Collection costs
- If the buyer is in default with regard to observing one or more of hisobligations then all reasonable costs incurred in obtaining payment out of court are to be met by the buyer.
If the buyer defaults in the timely satisfaction of a sum of money, he shall forfeit a 15% penalty payable immediately on the amount still due with a minimum of € 50.00.
- If seeh. has reasonably been required to pay higher costs, they are also eligible for reimbursement. seeh. always has the right to claim the real damage.
- Any reasonably incurred judicial and enforcement costs shall likewise be for the account of the buyer.
4. He owes interest on the collection costs incurred
Article 15 Suspension and cancellation
- seeh. is entitled to suspend the fulfillment of the obligations or terminate the agreement, if:
- Buyer does not fulfill or does not fully comply with the obligations of the agreement.
- Buyer is in a state of bankruptcy, suspension of payment or cessation or liquidation of (the company of) the buyer.
- After the conclusion of the agreement seeh.learns of circumstances that give reason to fear that the buyer will not be able to meet its obligations towards seeh. In the event that there is good ground to fear that the buyer will only partially or improperly fulfill his obligations, the suspension is only permitted insofar as the shortcoming justifies it.
- During the end of the agreement, the buyer is asked to provide security for the fulfillment of his obligations and this security
fails to occur or is unsatisfactory. Once security has been provided, the authority to suspend shall lapse unless such satisfaction is unreasonably delayed.
- Moreover, seeh. is authorized to dissolve the agreement or cause it to be dissolved if circumstances arise such that compliance with the agreement may no longer be demanded of it, or may not be demanded according to any measure of reasonableness and fairness, or if circumstances otherwise arise so that the unaltered continuation of the agreement may no longer be reasonably expected of it.
- In the event that the agreement is dissolved the claims of seeh. on the buyer will become immediately demandable.
If he suspends the fulfillment of the obligations, he shall retain his claims from the law and the agreement.
- seeh. retains the right to claim compensation at all times.
Article 16 Return of items made available
- If seeh. has put goods at buyer’s disposal during and in connection with the execution of the agreement, buyer shall be held to return the delivered goods within 14 days in their original state, free of defects and in their entirety. If the buyer fails to fulfill this obligation, he is liable for all resulting costs .
- If the buyer, for whatever reason after notice defaults to the in paragraph1 of this article mentioned obligation, seeh. has the right to claim the resulting damage and costs, including the cost of replacement.
Article 17 Liability
- In the event that any goods supplied by seeh. are defective, the liability of seeh. towards the buyer shall be confined to what is stipulated under “Warranty” in these terms and conditions.
- If seeh. is liable for direct damage, then said liability shall be limitedto a maximum of twice the amount of the purchase price, at any rate the purchase price of that part of the agreement to which the liability relates.
The liability of seeh. shall at all times be limited to a maximum equalling the amount of the payment to be made by the insurer of seeh. in the occurring event.
- Direct damage is exclusively understood as:
- the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these conditions;
- any reasonable costs incurred in order to have the defective performance of seeh. comply with the agreement, unless this defect can not be imputed to seeh.;
- reasonable costs incurred to prevent or limit damage, in so far asbuyer can demonstrate that the costs in question have resulted in the limitation of direct damage in the meaning of these general conditions.
- seeh. shall never be liable for indirect damage, including though not limited to consequential damage, loss of profit, loss of savings, and damage due to stagnation of business.
- The restrictions incorporated in these conditions of the liability to direct damage do not apply if damage is due to intent or gross negligenceof seeh.
Article 18 Transfer of risk
- The risk of loss of or damage to the products which are the subject of theagreement shall pass to the buyer at the moment at which they are legally and/or in fact delivered to the buyer and thereby come into the control of the buyer or any third party nominated by the buyer.
Article 19 Force majeure
- Neither party will be obliged to fulfill any obligation if it is prevented from doing so due to a circumstance not blamed to guilt or legal act by virtue of the law or guilt of applied opinions in the society.
- In these general conditions, the term ‘force majeure’ will be taken to mean – in addition to its definition in law and legal precedent – all external causes, foreseen or unforeseen, which the seeh. cannot influence, but as a result of which seeh. is unable to perform its obligations. This will include strikes in the company of seeh.
- seeh. will also be entitled to invoke force majeure if the circumstancepreventing performance or further performance arises after the seeh. should have performed its obligations.
- The parties may suspend the obligations ensuing from the agreement during the period that the force majeure continues. If this period lasts longer than two months, then each party is entitled to terminate the agreement without any obligation to pay damages to the other party.
- To the extent that, at the time when force majeure takes effect, seeh. has partially complied with its obligations under the agreement or will be able to comply with them, and independent value is attached to that part of the obligations that has been or will be complied with, seeh. is entitled to invoice separately for the said part. The buyer shall be held to pay this invoice as if it were a separate agreement.
Article 20 Indemnifications
- The buyer indemnifies seeh. for any third-party claim regarding intellectual property rights pertaining to materials or data supplied to the buyer that are used in the performance of the contract.
- If the buyer provides seeh. with information carriers, electronic files or software etc., the buyer guarantees that these are free of viruses and defects.
Article 21 Intellectual property and copyright
- Without prejudice to the provisions of these general conditions, seeh. reserves the rights and powers that accrue to seeh. by virtue of the Copyright Act.
- The buyer is not allowed to put changes in the goods unless accordingto the kind of the delivered or otherwise agreed in writing.
- The designs, sketches, drawings, films, software and other materials or (electronic) files, which created by seeh. in the context of the agreement, if any, shall remain the property of seeh., regardless of whether they were provided to the buyer or to third parties, unless agreed upon otherwise.
- All documents and information provided by seeh., such as designs, sketches, drawings, films, software, electronic files etc. shall only be intended for use by the buyer and may not be reproduced, disclosed, exploited or be brought to the notice of third parties without the prior written consent of seeh., unless the nature of the documents provided results otherwise.
- seeh.will retain the right to use any knowledge acquired pursuant to the performance of the work for other purposes, to the extent that this does not involve disclosing any confidential information to third parties.
Article 22 Confidentiality
- Each of the parties is obliged to keep confidential all confidential information they have acquired in the course of the agreement from each other or from some other source.
- If seeh. is obliged pursuant to a statutory provision or a legal ruling todisclose confidential information to third-parties designated by the law or the court with competent jurisdiction, and seeh. is unable to invoke a right to privilege recognized or permitted by statute or by the court with competent jurisdiction, then seeh. is not obliged to pay compensation for damages or other compensation and the counterparty is not entitled to dissolve the contract on the ground of any losses thus caused.
Article 23 Non-acquisition of staff
- Throughout the duration of the agreement and for one year following termination thereof, the buyer shall not in any way, hire or employ in any other way, be it directly or indirectly, staff of seeh. or of enterprises whom seeh. has engaged to execute the present agreement and who are (were) involved in the execution of the agreement, without prior proper businesslike consultation on this matter.
Article 24 Disputes
- All disputes relating to agreements between the buyer and seeh., will be adjudged by the competent judge in ‘s-Hertogenbosch or, at the discretion of seeh., the court having territorial jurisdiction pursuant to the law.
- Parties shall only call for legal intervention after they have done their utmost to solve a dispute in mutual consultation.
Article 25 Applicable law
- Any agreement between seeh. and the buyer shall be subject to the law of the Netherlands. Only the Dutch courts shall have jurisdiction with respect to any disputes between the principal and the contractor.
Any disputes will be resolved exclusively by the competent judge in ‘s-Hertogenbosch. The applicability of the Vienna Sales Convention is expressly excluded.
Article 26 Modification, explanation and location of the conditions
- These conditions have been filed with the Chamber of Commerce in ‘s-Hertogenbosch.
- The Dutch version of these general conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these conditions.
- The latest version that has been filed, or the version that was valid at the time at which the agreement was entered into, shall be applicable.