Terms and conditions
1.1. These general terms and conditions apply to all offers and quotations, in whatever form, of Brameda h.o.d.n. Westocklots and to all agreements concluded with Brameda h.o.d.n. Westocklots.
1.2. In addition to these general terms and conditions, additional conditions may apply to certain services and/or products if agreed in writing. Should there be any differences between the supplementary conditions and these general terms and conditions, then the provisions of the supplementary conditions will prevail over these general terms and conditions unless otherwise agreed in writing.
1.3. The provisions of these general terms and conditions may be deviated from if agreed upon in writing. In that case, the other provisions of these general terms and conditions will remain in full force. The agreed deviations apply exclusively to the agreement for which the deviations have been agreed.
1.4. Once these general terms and conditions apply, they will automatically also apply to new agreements between the parties unless agreed otherwise in writing.
1.5. If any provision of these general terms and conditions is null and void, is annulled or is otherwise declared inapplicable, the other provisions of these general terms and conditions will remain in full force and, in lieu of the provision that has lapsed, the parties will agree on a provision to replace it, taking into account the purpose and purport of the lapsed provision as much as possible.
1.6. Any general terms and conditions used by a Buyer of Brameda do not apply unless Brameda has agreed to these in writing. The term 'Buyer' is understood to mean any natural or legal person who is or will be in a contractual relationship of any kind with Brameda. In particular, the term 'Buyer' also refers to the person on whose behalf products are delivered or the (sports) association, club or foundation that has delegated one or more of its members to order products on its behalf and for its account and have them delivered by Brameda.
2. Offers, quotations and agreements
2.1. All offers and quotations are without obligation unless otherwise agreed in writing, are as accurate as possible and based on the quantities, specifications, measurements etc., provided by or on behalf of the Buyer at the time of the request. Any models, samples, descriptions, illustrations, and other items provided with an offer and any appendices and documents relating to an offer will form part thereof. The non-binding nature of offers and quotations also applies to orders placed with Brameda by Buyers or requests made to Brameda by Brameda personnel. Offers and quotations are valid as long as stocks last.
2.2. An agreement comes into effect when Brameda confirms the order placed by the Buyer or when the Buyer clearly agrees to the quotation or allows Brameda to commence with the execution of the order. As long as Brameda has not refused the Buyer's order, the Buyer remains bound by it.
2.3. Brameda is entitled to execute an order in parts. Each partial delivery counts as a delivery within the meaning of these general terms and conditions.
2.4. The order confirmation contains all information about the order and how it will be executed. The Buyer is obliged to check the order confirmation immediately and must report any inaccuracies in the confirmation to Brameda in writing within two working days of the date of issue. If such a report is not made within this period, the Buyer will not be entitled to reconsider this later, for example, by submitting a complaint regarding the delivery.
2.5. If the delivery or service is to take place outside the Netherlands, the Buyer is obliged - in the country where the agreement is to be executed - to notify Brameda in writing of any mandatory regulations relating to this execution, in any event before the quotation is issued. If the Buyer fails to do so, Brameda cannot and will not accept any liability for non-compliance with these mandatory rules, irrespective of the regulations in the country concerned.
2.6. Images and descriptions in catalogues etc., originating from Brameda or its suppliers, are as accurate as possible but are indicative and not binding on Brameda.
2.7. All advice and notifications provided by Brameda regarding the expected application possibilities of products to be delivered by Brameda are without obligation and are only provided as non-binding indicative information.
2.8. Any obvious errors in offers, quotations, order confirmations and agreements are not binding on Brameda: Brameda is entitled to make modifications at any time.
3.1. All prices are always be based on factory prices, material prices, transport prices, etc., valid at the time of the offer and/or quotation.
3.2. If, after the date of the offer, factory prices, material prices, wages, social security contributions, taxes, transport costs, insurance premiums or other price-determining factors increase in price - including price increases as a result of a depreciation in the value of the euro - or if, as a result of a change in one or more of these factors, Brameda's margins change, even if this results from circumstances that could already have been foreseen at the time of the offer, Brameda is entitled to amend its prices until delivery to the Buyer has been completed.
3.3. If the price increase is more than 20% compared to the initially agreed price, the Buyer is entitled to dissolve the contract by means of a written declaration sent within five (5) days of the date of the notice of the increase, without being entitled to claim any compensation due to this dissolution.
3.4. If Brameda hires a third party to execute an agreement, and this third party increases its prices and/or rates, Brameda is entitled to pass on the newly applicable prices and/or rates to the Buyer with immediate effect.
3.5. The prices quoted by Brameda are always in Euros, unless agreed otherwise, and are exclusive of sales tax (VAT) and other similar levies and exclusive of packaging and shipping costs.
4. Security and advance payments
4.1. Before proceeding with the execution of the confirmed order, Brameda is entitled to require the Buyer, with respect to his payment obligations, to pay in advance up to a maximum of the total amount as per the agreement with the Buyer, or - at the discretion of Brameda - to provide security such as an irrevocable bank guarantee up to a maximum of the amount owed by the Buyer at the time of execution.
4.2. If the Buyer refuses to provide the aforementioned advance payment or security Brameda's reques, Brameda will be entitled to dissolve the agreement with immediate effect by means of a written declaration to this effect, without prejudice to the other grounds for dissolution stated in these terms and conditions and without prejudice to the right to compensation for damage suffered by Brameda as a result of the dissolution.
5. Changes to or cancellation of the order
5.1. If the Buyer wishes to make changes of any kind to the original order, these require the written consent of Brameda. The Buyer will be charged any additional costs resulting from these changes.
5.2. In the event of cancellation, the Buyer is obliged to reimburse Brameda for all preparation, storage and other costs already incurred because of the order's execution and to pay compensation amounting to 25% of the agreed price; all this without prejudice to Brameda's right to compensation for the total loss suffered due to the cancellation.
5.3. Without prejudice to the above, the Buyer must notify Brameda in writing and in good time if they require any changes in the execution of the order after it has been placed. If there is a change in quantities, the Buyer must give written notice of this within 24 hours of the date of confirmation.
5.4. Changing or cancelling an order is not permitted for products that have already been shipped for delivery, nor for products that Brameda has specially ordered for the benefit of the Buyer.
5.5. Implementing urgent verbal and/or changes by telephone to a previously placed order is entirely at the risk and expense of the Buyer.
5.6. Changing an order can result in a change in the agreed delivery time, in which case the provisions of Article 6 of these general terms and conditions will apply in full.
6. Delivery time and delivery
6.1. The delivery time is calculated from the moment Brameda has sent an order confirmation or has begun with the execution of the order according to the provisions in article 2 of these general terms and conditions. If certain information is required or the completion of certain necessary formalities for the execution of the order, then the delivery time only starts when Brameda has received all information required, or the necessary formalities have been completed. If Brameda requires a down payment with the order, the delivery time only begins on the day this down payment is received.
6.2. The delivery times given by Brameda are without obligation, even though Brameda strives to adhere to them as accurately as possible, and are only approximate and therefore never a deadline as referred to by law. Exceeding the delivery time, for whatever reason, never entitles the Buyer to compensation, dissolution of the agreement or non-fulfilment of any obligation, which may arise for them under the agreement concerned or any other agreement related to this agreement, unless there is evidence of errors made by the personnel or by third parties engaged by Brameda.
6.3. In any event, if the Buyer believes that Brameda has exceeded the delivery time, the Buyer is obliged to give Brameda notice of default in writing and grant Brameda an additional period of 14 days.
6.4. For any damage suffered by the Buyer due to the delivery time being exceeded, the provisions of Article 14 of these general terms and conditions will apply in full.
6.5. Delays in the execution of the agreement for any reason whatsoever, including causes on the part of Brameda personnel or suppliers, automatically lead to an extension of the indicated delivery time by as many days equal to the delay period.
6.6. Postponement of delivery at the Buyer's request can only take place with Brameda's written approval. Any costs and losses that Brameda may incur as a result of this postponement will be borne in full by the Buyer. The cost specification provided by Brameda in this regard is binding on the Buyer.
7.1. Delivery, as referred to in these general terms and conditions, is the act by which Brameda fulfils its delivery obligation. With a view to the provisions of Article 9 with regard to retention of title, delivery need not be intended for or result in a transfer of title.
7.2. The place of delivery is the place mentioned on the order confirmation. Shipment to this place takes place using the Buyer's own means of transport and/or means of transport of third parties, and at the expense of the Buyer unless otherwise agreed. From the moment the products leave Brameda's warehouse, they are at the expense and risk of the Buyer.
7.3. For orders to be delivered outside the Netherlands, the clause 'ex-works' or 'free carrier', as referred to in the Incoterms 2000, applies, which means that the products are ready for delivery to the Buyer at a time to be specified in accordance with this clause unless a different written agreement with regard to the carriage and delivery has been made.
7.4. For orders where one or more products must be delivered to addresses specified by the Buyer, Brameda can in no way be held liable for the (accuracy and/or completeness and/or correctness of the) address details provided by the Buyer. In such a case, Brameda has no obligation to achieve a result, but only an obligation to perform to the best of its ability. The Buyer will be charged for any additional costs resulting from this method of delivery.
7.5. In the event of a change to the delivery address, the Buyer is obliged to notify Brameda within 3 x 24 hours by registered letter, stating the new delivery address accurately and in full.
8. Suspension and dissolution
8.1. In the event that the Buyer:
a. does not comply, does not comply properly or does not comply on time with any obligation which may arise from the agreement concerned or any other agreement entered into with Brameda, including financial obligations and obligations arising from Article 4;
b. is faced with the seizure of its products;
c. itself files for bankruptcy, or bankruptcy is filed by a third party on its behalf;
d. requests a suspension of payment;
e. halts work or liquidates the company;
f. is placed under administration and/or curatorship and/or a similar foreign variant;
g. makes any payment arrangements with creditors without Brameda's knowledge or leaves any third-party claim unpaid after the expiry of the payment term,
Brameda shall be entitled, without judicial intervention being required, to suspend the execution of any agreement entered into with the Buyer in full or in part or - at its discretion - to dissolve the agreement(s) in full or in part by means of a written statement to this effect, all this without Brameda being (or no longer being) obliged to pay any compensation or provide any guarantee, and without prejudice to the other rights to which Brameda is entitled, including the right to repossess the products delivered by Brameda and the right to full compensation.
8.2. In the cases mentioned in paragraph 1, all claims that Brameda has or obtains on the Buyer are immediately due and payable.
9. Retention of title
9.1. Ownership of all supplied products will only transfer to the Buyer when it has completely fulfilled all its obligations towards Brameda arising from the agreement that led to the supply of the products in question or from other agreements concluded with the Buyer for the supply of products and the provision of services related to these, as well as for claims on account of the Buyer's failure to fulfil the agreements.
9.2 Until the Buyer has completely and adequately fulfilled the aforementioned obligations, the delivered products will remain the property of Brameda. The Buyer is not entitled to sell or process the products unless Brameda has given written consent to do so. The Buyer is furthermore not entitled to (lease) sell, rent out, give on loan, pledge or otherwise allow the products to serve as security in any way whatsoever to a third party without Brameda's written consent.
9.3. With regard to accession (Article 5:14 of the Dutch Civil Code) and mixing (Article 5:15 of the Dutch Civil Code), the Buyer hereby commits, now and forthwith, concerning the products supplied by Brameda whereby accession or mixing may occur, and in respect of the applicability of the aforementioned legal provisions, to regard the products supplied by Brameda as main products in the sense of the law, so that the business, as a result of accession or mixing, becomes the property of Brameda until the Buyer has fulfilled the obligation referred to in paragraph 1.
9.4. The Buyer is obliged to show the products referred to in this article to Brameda on demand and hand them over to Brameda immediately in the event of default of payment or dissolution as referred to in Article 8.
9.5. The Buyer is also deemed to have granted Brameda, now and forthwith, an irrevocable power of attorney to allow Brameda or a third party appointed by Brameda to enter all its premises in order to inspect the condition of the products and, if necessary, to repossess the products in accordance with the provisions of the previous paragraph.
9.6. The Buyer will be credited for the products that have been repossessed on the basis of this article - provided that the products are in good condition and/or are otherwise usable by Brameda - at the market value at the time of repossession, to be determined in accordance with the commercial practice in the sector, without prejudice to Brameda's right to offset against this credit all financial obligations resting on the Buyer (including compensation) towards Brameda, with due observance of that which is provided for in Article 10 et seq. with regard to the allocation of payments.
9.7. The Buyer is obliged to insure the products referred to in paragraphs 1 to 3 against the risks of fire, theft, storm and water damage, in such a way that the relevant insurance policy contains the stipulation that the insurance also covers the products of third parties.
9.8. The Buyer is not allowed to pledge any claims against his insurer by virtue of the insurances referred to in the previous section, insofar as these relate to the products referred to in sections 1 to 3, to third parties or to have these pledged as security in the broadest sense of the word to third parties. Claims for damage and loss of the products referred to will substitute for the products concerned.
10. Payment and costs
10.1. Insofar as no other payment terms have been agreed in writing or are stated below, the Buyer will pay the total amount of the invoice or pro forma invoice respectively in advance without any discount for any reason whatsoever.
10.2. Brameda is entitled to charge a credit limitation surcharge on top of the agreed price. If payment is made within the period referred to in paragraph 1, the Buyer is entitled to deduct the surcharge from the invoice amount.
10.3. The Buyer is not entitled to set off outstanding invoices against a claim against Brameda, nor is the Buyer entitled to seize goods to the detriment of Brameda.
10.4. If the Buyer has not paid within the period specified in paragraph 1, it will be in default by operation of law, and Brameda will be entitled, without a summons or notice of default being required, to charge the Buyer interest (Article 6:119a of the Dutch Civil Code) from the due date at the statutory rate plus 4% until the day on which payment is made in full, all this without prejudice to the other rights to which Brameda is entitled.
10.5. Payments made by the Buyer will be processed in accordance with Article 6:44 of the Dutch Civil Code; payments will therefore first be used as payment for the costs, including those referred to in paragraph 9, then the interest as referred to in paragraph 4, and finally to settle the principal sum.
10.6. In the event of non-compliance with the payment obligations by the Buyer, Brameda is entitled to dissolve the agreement with immediate effect or to suspend the (further) supply of products and/or services until such time as the Buyer has fulfilled the (payment) obligations in full, including payment of any interest and costs due.
10.7. In addition to the obligations ensuing from these general terms and conditions and the agreement(s) entered into, the Buyer will also owe Brameda all extrajudicial and judicial costs incurred by Brameda, or to be incurred by Brameda, in order to claim compliance, dissolution or compensation pursuant to the agreement(s) entered into, whether or not in court, from the Buyer, or to defend himself against claims by the Buyer.
10.8. Extrajudicial costs are payable by the Buyer in each case in which Brameda has secured the assistance of a third party for legal aid, including the collection of amounts accrued to Brameda.
10.9. Without prejudice to any further rights and claims, the extrajudicial costs will in any event amount to at least 15% of the principal sum due, respectively of the amount for which Brameda claims from the Buyer, or the buyer claims from Brameda, with a minimum of € 250.00 excluding VAT.
11. Right of retention
11.1. Brameda is entitled to suspend the obligation to deliver products that are in possession of Brameda within the framework of the legal relationship concerned, or otherwise remain in possession of Brameda within the framework of regular contact, until the Buyer has fulfilled his obligation to compensate Brameda for any damage suffered and to pay any outstanding amounts, including interest and costs.
12. Warranty and complaints
12.1. Brameda guarantees the soundness of the products it supplies and their sound quality - in the light of customary practice in the sector - for six months after delivery, unless otherwise agreed, or unless a situation as referred to in paragraph 5 arises.
12.2. If the products supplied by Brameda during the period specified in paragraph 1 turn out to be faulty or of insufficient quality, Brameda will only be obliged to replace these products with other similar products in exchange for the return of the products to be replaced, or - at its discretion - to refund the invoice amount for the products to be replaced in exchange for the return of these products, or Brameda is entitled - at its discretion - to supply new products and not to take back the products supplied previously.
12.3. Without prejudice to what these general terms and conditions provide regarding liability, Brameda is never obligated to repair or compensate for any form of indirect or consequential damage caused by products replaced by Brameda.
12.4. The Buyer is only entitled to a warranty in accordance with these general terms and conditions if and when the Buyer has fulfilled all his payment obligations towards Brameda.
12.5. For products that Brameda does not manufacture itself, Brameda does not provide a more comprehensive guarantee than it has obtained from its supplier(s). Brameda will provide the Buyer with further information regarding this guarantee on request.
12.6. In further elaboration of the provisions in paragraph 1, complaints concerning visible defects or defects in numbers, sizes, colour (genuineness) and/or other specifications can only be enforced if these are made known to Brameda either by telephone (followed by written confirmation) or by e-mail within 24 hours of receipt of the products.
12.7. Any claim as referred to in this clause must contain a clear description of the complaint. Complaints made in any other way or submitted to an intermediary or other third party are of no value and will not be processed.
12.8. Unless special requirements for the products have been stipulated in the order and Brameda has confirmed these, products are supplied with a quality that is customary in the sector.
12.9. The Buyer is obliged to immediately check the products delivered against the order confirmation provided by Brameda. Therefore, complaints must be based on the delivered products deviating from the order confirmation.
12.10. The Buyer who has not checked the delivered products or had them checked on amounts, models, sizes and damage within 24 hours of receipt is deemed to have unconditionally agreed to the delivery.
12.11. With due observance of the provisions of paragraph 16, the Buyer will be able to submit complaints in writing due to hidden defects within 14 days of discovery.
12.12. Complaints do not entitle the Buyer to suspend payment of the invoice relating to the delivered products to which the complaints relate or suspend the payment of other invoices.
12.13. Products delivered and accepted by the Buyer in accordance with this provision will never be accepted as returns.
12.14. Brameda is not obliged to honour claims relating to defects or errors in models and suchlike prescribed by or on behalf of the Buyer.
12.15. Neither can Brameda be held liable in respect of the guarantee obligation if the products supplied by Brameda have been used improperly or have subsequently been processed, repaired or otherwise altered by or on behalf of the Buyer by third parties.
12.16. Each claim under this article lapses six months after the invoice date relating to the delivery in which the products in respect of which the Buyer wishes to make a claim are included unless otherwise agreed in writing.
13. Force majeure
13.1. Disruption to Brameda's business due to force majeure (as such arising in the context of agreements between the parties governed by these general terms and conditions) will, in any event, be regarded as force majeure: war, riots, pandemics, floods, transport disruptions, stagnation or restriction of supplies from public utility companies, lack of means for energy generation, fire, accidents, strikes, lockouts, union action, as a result of which supply and/or production becomes impossible or unreasonably onerous, government measures, non-delivery of necessary materials, products and/or semi-finished products to Brameda by third parties, the loss of the products destined for delivery to the Buyer, and other unforeseen circumstances, also in the country of origin of the products, which disrupt the normal course of business at Brameda and delay the execution of the order(s) or make it reasonably impossible) will result in Brameda being released from complying with the agreed delivery time and/or its obligation to supply, without the Buyer being able to exercise any right to compensation for damages, costs and interest on that basis. Brameda will immediately warn the Buyer if a case of force majeure as referred to in the previous sentence occurs.
13.2. If the force majeure is to be considered permanent, both Brameda and the Buyer can dissolve the agreement in whole or in part by means of a written statement to that effect. A permanent situation of force majeure exists if the situation causing force majeure lasts longer than four months. Neither Brameda nor the Buyer can in such a case claim compensation.
14.1. Subject to generally applicable rules of public order, subject to the special provisions in the Civil Code in respect of Product Liability (Articles 6:185 to 6:193 of the Civil Code), the fulfilment by Brameda of its obligation to supply, with due observance of the provisions in Article 12 in respect of the guarantee and complaints, will always be regarded as the only and complete compensation and any other claim for compensation on the part of the Buyer is hereby expressly excluded.
14.2. Brameda is never obliged to compensate the Buyer, not being a consumer, for costs and damages due to personal accidents. Brameda is never obliged, with respect to the Buyer, to pay compensation for costs and damages due to damage to (im)movable products, the loss of added value to supplied products as a result of them becoming wholly or partially unusable, either directly or indirectly caused to the Buyer or third-parties as well as damages of any other nature whatsoever, unless the Buyer demonstrates that the damage is due to intent or gross negligence on the part of Brameda, which excludes its employees.
14.3. Brameda is never liable towards the Buyer for any damage the Buyer suffers as a result of claims by third parties, including its own employees, as a result of damage of any nature whatsoever caused by products supplied or resold by Brameda to the Buyer. The aforementioned claims of third parties include claims based on the statutory provisions in respect of Product Liability.
14.4. The Buyer is obliged to handle the products supplied by Brameda with due care and to use them correctly and in any case not to use them improperly or for a purpose other than that for which they are suitable according to objective criteria.
14.5. Brameda is not liable for consequential or trading loss, indirect damage, lost savings and loss of profit or turnover, in any sense whatsoever, or in any way whatsoever caused by Brameda, unless there is evidence of intent or gross negligence.
14.6. Brameda is prepared to provide the Buyer with specific advice on using a particular product on the condition that the Buyer provides Brameda with comprehensive and complete information on the intended use. The Buyer always bears the sole responsibility for how it processes the advice.
14.7. All that is laid down in this provision is applicable without prejudice to damage that is the direct or indirect result of advice as referred to in the previous paragraph or assembly and repair services carried out at the request of the Buyer, in the sense that whenever reference is made to Product Liability within the framework of damage as a direct or indirect result of advice or assembly and repair services provided by Brameda, this must be read as 'Product Liability and/or Service Liability'.
14.8. The Buyer indemnifies Brameda in respect of all losses suffered by Brameda as a result of any claim for damages made by third parties, including the Buyer's own employees, as a result of damage caused by a product supplied or to be supplied by Brameda, including claims based on statutory provisions in respect of Product Liability and/or Services Liability as well as in respect of the infringement by Brameda of patents and/or other intellectual property rights as a result of the use of data, drawings, instructions provided by or on behalf of the Buyer in respect of products to be manufactured and/or working methods to be used and suchlike.
14.9. When Brameda is held liable by third parties as referred to in the previous paragraph, the Buyer will reimburse Brameda in full for all costs of legal and other aid incurred by Brameda in connection with these claims, such as defending ourselves, negotiating, and suchlike. These costs are deemed to amount to at least 15% of the claimed amount of damages, without prejudice to Brameda's right to recover the actual reasonable costs of legal aid from the Buyer.
14.10. Without prejudice to the above provisions, Brameda is never liable to the Buyer for a higher amount than the amount of the price stipulated in the agreement with the Buyer for the supply of the products and materials that have indirectly or directly resulted in the damage, including damage caused by delays.
14.11. In all cases where the Buyer is obliged to indemnify Brameda on the basis of this provision, the Buyer is also obliged to comply with a demand to indemnify Brameda in legal proceedings.
14.12. The right to claim damages in respect of all agreements governed by these general terms and conditions lapses one year after the invoice date.
15. Waiver of Right to Rescission
15.1. The Buyer waives his right to claim dissolution of the contract as provided for in Article 6:265 of the Dutch Civil Code on account of a shortcoming in the fulfilment by Brameda unless a situation as provided for under Article 13.2 of these General Terms and Conditions applies.
16. Intellectual Property Rights
16.1 By placing an order, the Buyer unconditionally agrees to the fact that all intellectual property rights arising from calculations, models, drawings and descriptions of all kinds made or used by Brameda as part of the implementation of the agreement will remain or become vested in Brameda, this without prejudice to any contributions to the creation of such works by or on behalf of the Buyer. If such works are made available to the Buyer, the Buyer is bound to secrecy and is not entitled to make these works available to third parties and/or reproduce them or have them reproduced without Brameda's written consent.
16.2. By placing an order, the Buyer unconditionally agrees to the fact that all intellectual property rights on the products to be supplied by Brameda are or will become vested in Brameda.
16.3. The Buyer is prohibited from removing and/or changing any indications of intellectual property rights from or to the products supplied by Brameda.
17. Applicable law and competent court
17.1. All offers, quotations, order confirmations and agreements governed by these general terms and conditions will be exclusively governed by Dutch law, with the explicit exclusion of the Vienna Sales Convention.
17.2. All disputes relating to or arising from the agreements concluded with Brameda or from the offers, quotations and order confirmations issued will be exclusively brought before the competent Dutch court in the district where Brameda has its registered office except where any mandatory provision in the Netherlands dictates otherwise.