General Terms and Conditions
General delivery and payment terms of Brandmerchandising BV.
1. General
1.1 In these general delivery and payment terms, the following terms have the following meanings:
- BM Energy: Trading name of Brandmerchandising B.V., Keurmeesterstraat 10, 1187 ZX Amstelveen, registered in the trade register of the Dutch Chamber of Commerce under KvK number 64289052;
- Customer: the contracting party of BM Energy, or the party to whom BM Energy sends a quotation, or the party that requests BM Energy to submit a quotation, or the party that places an order with BM Energy;
- Third party: legal or natural persons other than the Customer or BM Energy;
- Supplier: the party from whom BM Energy purchases any goods to be delivered to the Customer;
- Agreement: any type of contract to which BM Energy is a party;
- General Terms and Conditions: the general delivery and payment terms of BM Energy.
1.2 These General Terms and Conditions apply to all offers and quotations from, agreements with, and deliveries by BM Energy, unless expressly agreed otherwise in writing. BM Energy shall never be deemed to have accepted, whether explicitly or implicitly, the applicability of any general purchasing or sales terms of a Customer or third parties.
1.3 To the extent that any (parts of) articles in these General Terms and Conditions are void or voidable, the remaining (parts of) articles shall remain in full force.
1.4 Headings above articles are intended solely for ease of reading and do not give articles or parts thereof a broader or narrower meaning.
1.5 In the event of discrepancies between the Dutch and English versions of these General Terms and Conditions, the Dutch version shall be decisive.
1.6 Deviations from these General Terms and Conditions are only binding on BM Energy to the extent that such deviations have been agreed upon in writing with BM Energy.
1.7 The Customer accepts that employees of BM Energy, or third parties involved in the performance of any agreement by BM Energy, may invoke the provisions of these General Terms and Conditions against the Customer.
2. Offers and Agreements
2.1 Every offer made by BM Energy is non-binding, unless BM Energy has stated in writing that an offer is binding. Statements and data on BM Energy's website regarding goods for sale constitute an invitation to make an offer and are not binding on BM Energy.
2.2 Agreements with BM Energy are concluded, among other ways, by BM Energy recording the agreement in writing, or by the Customer accepting a written quotation from BM Energy.
2.3 Specifications, drawings, calculations, product descriptions, dimensions, technical data, and other information forming part of an offer, quotation, or agreement are approximate indications only and are not binding on BM Energy.
2.4 Oral commitments made by employees of BM Energy are not binding on BM Energy, unless confirmed in writing to the Customer by a person authorised to represent BM Energy.
2.5 The Customer bears full responsibility for any inaccuracies in the data and specifications provided by or on behalf of the Customer to BM Energy regarding goods to be delivered.
2.6 Advice provided by BM Energy for which no costs are charged to the Customer is non-binding. No rights may be derived from such advice by the Customer or third parties.
2.7 If a Customer is only willing to accept part of an offer or quotation, no partial agreement is concluded, unless BM Energy confirms in writing to the Customer that it is willing to be bound by a partially accepted offer or quotation.
3. Prices and Payment Terms
3.1 Prices offered or confirmed by BM Energy apply only to the goods specified in the offer, quotation, or confirmation. Unless otherwise agreed with the Customer, prices are exclusive of transport, insurance, and packaging costs, import and export duties, and any other charges or levies imposed by any government authority, as well as any other additional costs.
3.2 Prices offered or confirmed by BM Energy are subject to change due to external factors beyond BM Energy's control. Related price increases will be passed on if more than one month elapses or will elapse between the date of the agreement and the date of delivery.
3.3 Payments are only considered discharged if made by credit transfer to the bank account number in the name of the party as stated on BM Energy's invoice, and provided that BM Energy's invoice number is included as a payment reference in the transfer.
3.4 Each BM Energy invoice must be paid within fourteen days of the invoice date, but no later than prior to transport or shipment of the goods, unless otherwise agreed in writing. BM Energy is entitled to issue partial invoices for partial deliveries.
3.5 In the event of late payment, the Customer is in default and statutory commercial interest is due from the due date.
3.6 Payment is due without any right to discount, suspension, and/or set-off.
3.7 If the Customer fails to pay on time, BM Energy is entitled to refer its claim for collection. Extrajudicial collection costs are for the Customer's account and amount to at least 15% of the invoice amount plus accrued interest, with a minimum of EUR 300.00 excluding VAT per invoice.
3.8 BM Energy is at all times entitled to require the Customer to provide security acceptable to BM Energy before BM Energy is obliged to proceed with delivery.
3.9 The Customer is hereby informed that a right of pledge has been established in favour of Nexent Bank N.V. over all current and future receivables that BM Energy has or will obtain from the Customer under the Agreement. Payments under the Agreement may only be validly made to the bank account number stated on BM Energy's invoice, being an account held with Nexent Bank N.V.
4. Delivery and Force Majeure
4.1 BM Energy is a trading company and maintains only limited stock. Agreed delivery times are indicative only and are not binding on BM Energy. The delivery period does not commence until the Customer has provided BM Energy with all (technical) information necessary for delivery. Exceeding the delivery time does not entitle the Customer to compensation, dissolution, or suspension of its own obligations under an agreement or any prior agreement.
4.2 The delivery period is extended by the duration of any delay in performance on the part of the Customer under an agreement or a previously concluded agreement with BM Energy. Delivery of goods by BM Energy takes place ex warehouse, unless otherwise agreed in writing with BM Energy.
4.3 BM Energy is entitled to perform an agreement by means of partial deliveries.
4.4 Delivery takes place only after payment of all amounts owed by the Customer to BM Energy, unless otherwise agreed in writing.
4.5 A failure not attributable to BM Energy, referred to as "force majeure" within the meaning of the Dutch Civil Code and case law, includes but is not limited to: late or incorrect delivery by BM Energy's suppliers or by carriers engaged by BM Energy, traffic congestion regardless of cause, government measures, fire, water damage, disruptions in the supply of energy, disruptions to communications, hardware or software failures, internet outages, email disruptions, illness of persons involved in the performance of an agreement, destruction of BM Energy's property, import or export restrictions whether or not resulting from Brexit, and theft.
4.6 If force majeure of any kind continues for more than three weeks beyond the indicative delivery time, both parties have the right to dissolve the agreement with respect to the part not yet performed. The Customer has this right only after having formally demanded performance from BM Energy and having granted a reasonable period in which to comply. To the extent that a Customer dissolves an agreement (partly) as a result of force majeure, the Customer is not entitled to compensation.
5. Transfer of Risk and Liability
5.1 Risk in respect of the goods to be delivered passes to the Customer at the time of delivery as referred to in Article 4.2, unless a different moment of risk transfer has been agreed in writing between BM Energy and the Customer.
5.2 If the Customer is not present at the delivery location, BM Energy is entitled to leave the goods to be delivered at the delivery address at the Customer's expense and risk. If the Customer is not present at the agreed time of delivery, BM Energy is also entitled to take the goods back, and the Customer is required to reimburse BM Energy in full for the costs of re-delivery and storage.
5.3 The Customer acknowledges that BM Energy is not liable for damage to delivered goods from the time of delivery, regardless of whether the Customer took receipt of the goods at that time.
6. Inspection and Complaints
6.1 The Customer is required to inspect the goods at the time of receipt.
6.2 The Customer must submit complaints regarding delivered goods to BM Energy in writing within seven days of receipt, or delivery as referred to in Article 5.2. After the expiry of this period, the Customer's right to invoke any defect or inaccuracy in the delivered goods lapses, unless a warranty as referred to in Article 7 applies.
6.3 Without BM Energy's prior written consent, the Customer is not permitted to return goods that are the subject of a complaint. BM Energy's consent to return goods does not constitute acceptance of a complaint. Any return shipment by the Customer to BM Energy, whether or not BM Energy has given consent, is always at the Customer's cost, expense, and risk.
6.4 Where a complaint has not yet been resolved, the Customer is not entitled to suspend its payment obligations to BM Energy under any agreement.
7. Warranty
7.1 BM Energy warrants solely the fitness of delivered goods for normal use by the Customer in accordance with the Supplier's (usage) instructions. Goods delivered by BM Energy that exhibit defects will, at BM Energy's discretion, be replaced or repaired free of charge, provided the Customer demonstrates that such defects arose within six months of delivery and are the direct result of defective or unsuitable materials. BM Energy does not warrant the suitability of delivered goods for any specific purpose intended by the Customer or third parties.
7.2 If the Customer or any third party carries out or has carried out any repair or modification to the delivered goods, or processes or works the delivered goods, within the six-month period referred to in Article 7.1, BM Energy is under no obligation to provide any warranty.
7.3 Warranty applies solely to the Customer and not to third parties.
7.4 Notwithstanding the warranty provisions in these General Terms and Conditions, BM Energy is never obliged to provide more warranty than the warranty obligations actually obtained by BM Energy from its supplier. At the Customer's first request, BM Energy will, where possible, transfer its warranty rights against its Supplier to the Customer.
8. Liability and Indemnification
8.1 BM Energy is never liable for any loss or damage suffered or to be suffered, unless such damage is the direct and exclusive result of gross negligence or wilful misconduct on the part of BM Energy or any third party involved by BM Energy in the performance of an agreement.
8.2 To the extent that BM Energy is liable, such liability is at all times limited to performance of what BM Energy has committed to under the warranty provisions set out in Article 7 of these General Terms and Conditions.
8.3 By way of further limitation of liability, the Customer accepts that only damage for which BM Energy is insured, and only up to the amount actually paid out by BM Energy's insurer, is eligible for compensation. To the extent that BM Energy's insurer does not pay out, BM Energy is never obliged to pay compensation exceeding the invoice amount of the goods to which the liability relates.
8.4 Notwithstanding the provisions of Articles 8.1, 8.2, and 8.3, indirect loss suffered by the Customer or third parties is never eligible for compensation, including but not limited to consequential loss, loss due to business interruption, replacement costs, personal injury, loss resulting from operational disruption, loss of profit, and loss of revenue, damage caused by third parties engaged by BM Energy in the performance of the agreement, or damage resulting from use of delivered goods for purposes other than those for which they are intended.
8.5 The Customer is required to maintain adequate insurance against loss in the broadest sense resulting from goods delivered by BM Energy.
8.6 The Customer is required to indemnify BM Energy against any liability to third parties in connection with goods delivered by BM Energy to the Customer.
8.7 On pain of forfeiture, legal claims against BM Energy must be brought before the competent court within one year of a timely complaint being filed.
9. Retention of Title
9.1 BM Energy retains title to goods to be delivered or delivered under any agreement until full payment of all its claims under any agreement has been received.
9.2 The Customer is required to store goods subject to BM Energy's retention of title separately and to handle them with care. In particular, the Customer is required, at its own expense, to insure such goods at replacement value against damage by fire, water, and theft.
9.3 In the event of attachment or enforcement by third parties, or (imminent) bankruptcy, suspension of payment, or debt restructuring, the Customer must immediately notify BM Energy in writing so that BM Energy can take appropriate measures to protect its interests.
9.4 If the Customer fails to perform any obligation towards BM Energy, BM Energy is entitled, without any notice of default being required, to collect or have collected the goods that remain its property wherever they are located. The Customer is liable for all costs BM Energy incurs in exercising its retention of title, including but not limited to transport and storage costs. The Customer authorises BM Energy to enter all premises and buildings owned, rented, or used by the Customer in order to exercise the rights associated with the retention of title.
10. Applicable Law and Jurisdiction
10.1 Dutch law applies exclusively to all agreements with and every offer or quotation from BM Energy and any disputes arising therefrom, to the exclusion of the laws of other states and to the exclusion of the Vienna Convention on Contracts for the International Sale of Goods.
10.2 Disputes with BM Energy shall at all times be submitted to the competent court of the District Court of Amsterdam, the Netherlands. To the extent that a dispute falls under the mandatory jurisdiction of the Subdistrict Court, the court with jurisdiction shall, in deviation from the above, be determined in accordance with the rules of the Dutch Code of Civil Procedure.
