Terms and conditions

General terms and conditions applicable to the sale and delivery of products by ETQ Amsterdam B.V.

 

 

1. APPLICABILITY

1.1. These general terms and conditions (the "General Terms and Conditions") of ETQ Amsterdam B.V. and/or its group companies (hereinafter: "ETQ") apply to all pre-contractual and other orders, order confirmations, requests, offers, quotations, assignments and agreements for the sale and delivery of goods and/or products (hereinafter: the "Products") to which ETQ is a party (hereinafter: the "Agreement(s)").

1.2. The applicability of any general terms and conditions used by the purchaser of Products (hereinafter: the "Purchaser") is expressly rejected by ETQ.

1.3. Deviations from these General Terms and Conditions are only valid to the extent that the parties have expressly agreed such deviations in writing.

1.4. In the event of any conflict between these General Terms and Conditions and an Agreement, the Agreement will prevail.

1.5. In writing also includes email and orders via ETQ's online showroom, hosted by LE NEW BLACK SAS.

2. OFFERS AND DOCUMENTATION

2.1. All offers from ETQ are non-binding and they may be withdrawn and/or amended at any time. ETQ shall in all events only be bound to an offer in the event it has accepted the order in writing.

2.2. In addition to the aforementioned, ETQ is only bound insofar as was accepted or agreed expressly in writing. Any verbal communications and/or commitments do not bind ETQ, except insofar as ETQ confirms these in writing.

2.3. Any order and/or acceptance that the Purchaser provides to ETQ is irrevocable.

2.4. An Agreement is only concluded by express acceptance of an order and/or acceptance that the Purchaser provides to ETQ, either by written confirmation by ETQ. Any catalogues, brochures, pictures, diagrams, designs and similar disclosed data are only binding on ETQ if and insofar that has been expressly agreed upon in writing.

2.5. ETQ has the right to request documentation in connection with a credit review of the Purchaser.

2.6. ETQ will at all times be entitled to change the design of the Products.

2.7. ETQ is not obliged to furnish catalogues, brochures, pictures, diagrams and/or designs.

2.8. Documents and data originating from ETQ may not be submitted or disclosed to third parties, except with the express permission of ETQ.

3. PRICES AND PAYMENT

3.1. Prices set or agreed upon by ETQ are prices exclusive of VAT, unless otherwise agreed in writing.

3.2. Prices set by or agreed upon with ETQ are based upon the production costs at the time of the offer. If the production costs increase thereafter or if any other change occurs in costing factors, including, but not limited to raw materials, government costs and/or shipping costs ETQ is entitled to charge the Purchaser a corresponding price increase. ETQ will inform the Purchaser of such increase as soon as possible.

3.3. ETQ shall at all times be entitled to claim full or partial payment in advance and/or security for payment.

3.4. ETQ has the right to set off any or all claims and debts between the Purchaser and ETQ for the benefit of and, in so far as necessary, also on behalf of its group companies, irrespective of the basis of such claims, irrespective of the currency of such claims and irrespective of whether or not the debts and claims are due and payable.

3.5. The Purchaser is only entitled to set off any claims against ETQ with any payment obligations towards ETQ with the approval of ETQ.

3.6. ETQ’s invoices must be paid upon prepayment; 30% upon placement of the order and 70% immediately upon receipt of the Product, unless otherwise agreed by both parties and stated in the written order. In no event will the payment period exceed 30 days as of the invoice date. The Purchaser will only have performed its payment obligation if the entire invoiced amount has been paid within the set payment period without any reservation.

3.7. If the Purchaser fails to meet any of its payment obligations and does not pay within the period mentioned under clause 3.6, the Purchaser shall immediately be in default by operation of law (without a prior notice being necessary).

3.8. As soon as the Purchaser is in default regarding any due payment, all of ETQ’s remaining claims vis-à-vis the Purchaser are due and payable immediately and the Purchaser will immediately be in default, by operation of law, with respect to those claims.

3.9. As from the day the Purchaser is in default, Purchaser owes ETQ statutory interest (within the meaning of Article 6:119a of the Dutch Civil Code) and extrajudicial collection costs over the period of default.

3.10. Any dispute between the Purchaser and ETQ about the quality or about any complaint submitted by the Purchaser under any other heading does not entitle the Purchaser to suspend payment in full or in part.

3.11. If the Purchaser defaults, or threatens to default, under any obligation to ETQ, ETQ will in each case be entitled to fully or partially suspend performance of any of its obligations under the General Terms and Conditions and/or the Agreement(s) and all invoices will fall due and payable immediately without any further notice of default, without prejudice to ETQ's other statutory and contractual rights.

3.12. If the delivery has already been made and the Purchaser has not made payment within 30 days after receiving the invoice, ETQ will have the right to terminate the Agreement with the Purchaser, in which case the Purchaser shall owe an immediately due and payable penalty of 5% of the aggregate amount of the purchase prices of the Products, irrespective of statutory interest. ETQ has the right to claim full damages owed pursuant to the law in addition to the penalty set out in this Article 3.12.

3.13. If any discount, rebate or bonus scheme, howsoever called, has been agreed, it will not be due and payable until the Purchaser has performed all its obligations under the Agreement to ETQ, including its payment obligations, in full and punctually.

3.14. A binding contract will be considered to have been entered in to once the Purchaser has placed an order (via email or Le New Black). ETQ accepts cancellation of or change to an order if and only upon written notice (via ETQ's online showroom, hosted by LE NEW BLACK SAS) within 30 days after placement of the order.

4. DELIVERY

4.1. Any and all delivery periods and/or data stated by ETQ shall be an estimation. In no event shall such delivery period or date be a guaranteed period and/or date.

4.2. The delivery period starts after the conclusion of an Agreement but not before:

(i) ETQ has received all items, documents, and/or other data to be rendered by Purchaser;

(ii) Purchaser has met all administrative, technical, commercial and other requirements (if any); and

(iii) Purchaser has made any advance payment and/or security for payment agreed upon.

4.3. Products will be delivered conform EXW Incoterms® 2010, except to the extent that the parties have expressly agreed upon different delivery terms.

4.4. In case of collection of the Products by the Purchaser, if the Purchaser fails to collect the Products at the agreed point in time, ETQ will have the right to terminate the Agreement. In such cases, ETQ retains the right to seek full damages in addition.

4.5. Failure to deliver within the delivery period or on the delivery date agreed upon does not entitle the Purchaser to compensation of damages, nor to any claim for breach of contract by the Purchaser. The Purchaser is however, entitled to rescind the Agreement by means of a written declaration if and insofar ETQ continues the non delivery after a written notice to deliver within a reasonable time period of at two (2) months as of the date of such written notice. ETQ will never be liable for any loss suffered by the Purchaser as a result of Products supplied late.

4.6. The Purchaser shall take all reasonable measures and provide all information necessary for the timely supply of the Products by ETQ. If the Purchaser is responsible for the ETQ's inability to supply the Products at all or in time or if the Purchaser refuses to take receipt of the delivery, ETQ will have the right to terminate the Agreement. In such cases, ETQ retains the right to seek full damages in addition.

4.7. Delivery periods will in all events be extended by the duration during which the performance of an Agreement is delayed by force majeure, irrespective of statutory rights.

4.8. ETQ shall in all events be entitled to deliver an order in one or more part(s). In the event of delivery in parts, each such partial delivery will be deemed an independent delivery with respect to the applicability of these conditions.

4.9. The Purchaser may only return Products if ETQ has given written its express permission in advance to do so.

5. RISK AND TRANSFER OF TITLE

5.1. Products to be delivered by ETQ are at the risk of Purchaser from the moment the Products are deemed to be delivered pursuant to clause 4.3. In case of collection by the Purchaser, the Products are at the risk of the Purchaser from the moment the Products are collected or should have been collected by the Purchaser.

5.2. Loading, dispatch or transport, unloading and insurance of the Products to be delivered takes place at the risk and costs of the Purchaser, even if these services are handled by or on behalf of ETQ.

5.3. ETQ retains the full and unconditional ownership of the Products until the Products are paid in full (within the meaning of Article 3:92 (2) of the Dutch Civil Code). The Purchaser shall in no event have right of retention with regard to the Products.                                                                                 

5.4. The Purchaser is not permitted to vest limited rights on the Products for the benefit of third parties before the Purchaser has become owner of the Products.

5.5. ETQ is authorized to reclaim or retrieve the Products, without any notice of default, if the payment period is exceeded. The Purchaser is obliged to return the Products to ETQ upon ETQ's first demand without delay at a place indicated by ETQ. The costs of any return by the Purchaser and/or retrieval by ETQ are at the Purchaser's expense. Upon first demand, the Purchaser shall give ETQ the opportunity to retrieve the Products supplied by ETQ to the Purchaser.

6. FORCE MAJEURE

6.1. ETQ is entitled to invoke force majeure if the performance of an Agreement is, in whole or in part, temporarily or permanently, prevented or impeded by circumstances reasonably out of its control, including, but not limited to: natural disasters, blockades, strikes, work-to-rule slowdowns and lockout, delay in the acquisition of parts, products and services ordered by ETQ from third parties and governmental regulations and/or similar acts, embargoes (within the meaning of article 6:75 of the Dutch Civil Code).

6.2. In the case of force majeure on ETQ’s part, ETQ is entitled to suspend its obligations under the Agreement. If the force majeure continues for more than three (3) months, ETQ and Purchaser are both entitled to rescind or terminate (parts of) the Agreement by means of a written declaration.

7. AUTHORIZED ETQ RESELLER

7.1. ETQ appoints the Purchaser as a limited and non-exclusive ETQ Authorized Reseller ("ETQ Authorized Reseller") for the resale of Products, in accordance with these Terms and Conditions, and for so long as the Purchaser complies with and satisfies its obligations under these Terms and Conditions and any other Agreement (the "Appointment") or as long as the Agreement has not been terminated for any reason.

7.2. The Purchaser will purchase Products from ETQ or another ETQ Authorized Reseller.

7.3. ETQ is free to sell Products directly to consumers or indirectly through any other ETQ Authorized Reseller than the Purchaser and may allocate the Products in its sole discretion and without liability to the Purchaser.

7.4. The Purchaser is expressly prohibited from reselling Products to a third party, unless that third party is a consumer or an ETQ Authorized Reseller. The Purchaser's noncompliance with this provision will result in a fine of EUR 10,000 per breach with a maximum of EUR 100,000, immediately to be paid upon first notice by ETQ, without prejudice to additionally claim the full statutory damage.

7.5. The Appointment grants the Reseller only those rights specifically stated in these Terms and Conditions during one year. ETQ may terminate the Appointment immediately as ETQ Authorized Reseller before the end of this term, if: (i) the Purchaser fails to fully perform any obligation under the Agreement or these Terms and Conditions, (ii) there is a material change in Purchaser's management or ownership, (iii) Purchaser fails to maintain sufficient net worth to meet its obligations, has a receiver or bankruptcy trustee appointed, is liquidated, dissolved, has a petition presented or an order made for its winding up, becomes insolvent or should the Agreement be terminated for any other reason.

8. COMPLAINTS

8.1. The Purchaser must inspect the Products immediately upon the actual supply or delivery of the Products for incompleteness and/or defects.

8.2. If the Products supplied by ETQ noticeably fail to satisfy the Agreement, the Purchaser must file a complaint within three [3] working days of the actual delivery by written notice to ETQ. Complaints regarding defects that are not noticeable at the time of supply must be reported to ETQ in writing within [1] one month after the Purchaser has or should reasonably have noticed such defects, and in any event not later than within [8] weeks after the Products have been delivered.

8.3. Absent a timely complaint the Purchaser will lose its statutory and contractual claims against ETQ and the delivery will be considered to be in conformity with the Agreement and have been unconditionally accepted by the Purchaser.

8.4. If the Purchaser has filed a timely complaint and demonstrates that the defect already existed at the time of delivery, ETQ will never be required to do more in respect of the Products delivered than – at ETQ's discretion – to supply what was missing, replace or remedy the Products at the delivery location, or grant a price reduction that is proportionate to the defect.

8.5. A discovered defect in one or more Products does not give the Purchaser the right to cancel any remaining or follow-up orders or to refuse any other part of the relevant delivery.

9. PRODUCT WARRANTY

9.1. ETQ warrants the good quality of the Products it sells under an Agreement, in such manner that in the event of defects in assembly, materials or finishing (or any other defect) which appear during the warranty period and for which claims are submitted by Purchaser within the warranty period, it will either replace the affected Product(s) at no cost, repair the affected Product(s) at no cost, or send the Purchaser a credit note pertaining to the Product(s) in question, corresponding with the invoice value thereof. ETQ shall have full and sole discretion to opt for any of the aforementioned remedies.

9.2. The warranty period is two (2) months after delivery, provided that the Purchaser has satisfied all its payment obligations. After this warranty period has lapsed, the Purchaser cannot invoke non-conformity of the Products.

9.3. Any right to this warranty lapses if:

    (i) the directions given by ETQ for storage, placement and/or use have not been followed strictly;

    (ii) the delivered Products have been used improperly or other than in conformity with the usual purpose of such Products;

    (iii) the Purchaser and/or any third party has/have performed repair(s) on the affected Products without prior permission ETQ;

    (iv) the Purchaser has not fulfilled one or more obligations arising from the underlying Agreement, or has not fulfilled them adequately and on time;

    (v) the Purchaser or person(s) who the Purchaser is responsible has in any way damaged the Products;

    (vi) the Purchaser failed to submit a complaint in accordance with clause 7.

9.4. If ETQ replaces or repairs the defective Product within the warranty period, the warranty period will be extended to one more month after receipt of the new or repaired Product.

9.5. No rights can be derived from catalogues, brochures, promotional material and the like, nor from written or verbal undertakings that have not been included in the Agreement.

10. LIABILITY AND INDEMNIFICATION

10.1. The liability of ETQ in connection with any defects in Products it delivers is limited to the fulfillment of the warranty described in the previous clauses 8.1 up to and including clause 8.4 and in any case will never exceed the amount of the total price of the relevant delivery.

10.2. Any liability of ETQ for indirect damages as loss of profits and/or loss of goodwill, consequential damage or economic damage by whatever virtue, on the part of the Purchaser and/or its customers or damage to third parties is fully excluded, except in the event of gross negligence or willful misconduct on the part of ETQ (and/or its employees).

10.3. Any claim (breach of contract, wrongful act or any other) of Purchaser vis-à-vis ETQ lapses (verjaring) after the expiry of six (6) months after the moment the Purchaser or the Purchaser's customer becomes or should have become aware of the damage and in any event after one (1) year after the relative delivery of the Product.

10.4. The Purchaser will strictly adhere to all national and international legal restrictions placed on export and import with respect to the Products sold by ETQ. It shall hold ETQ harmless and indemnify ETQ against all damages arising from a failure to adhere to such restrictions.

11. TERMINATION

11.1. If the Purchaser does not fully fulfill one or more of its obligations under an Agreement within the agreed time period(s), an application has been made for the Purchaser's bankruptcy or suspension of payments, the Purchaser is declared bankrupt, and/or proceeds with the liquidation of its business, the Purchaser or ETQ discontinues its operations or business, whether or not temporarily ETQ, for any cause whatsoever, wishes to terminate the Agreement with the Purchaser, with due observance of a notice period of one month as well as when the Purchaser's assets are attached in whole or in part, ETQ has the right to suspend the execution of the Agreement and/or to or terminate the Agreement in whole or in part, without prior notice of default.

11.2. If ETQ terminates the Agreement in accordance with article 10.1, does not entitle the Purchaser to compensation of damages, nor any claim for breach of contract.

11.3. The Purchaser is authorized to terminate an Agreement only in the circumstances referred to in clause 4.5 and/or clause 6.2 and then only after the full payment of all amounts owed to ETQ at that time, whether due and payable or not.

11.4. In the event that the Agreement is terminated, each and every claim of ETQ against the Purchaser will become due and payable.

11.5. Any payments made by Purchaser in respect of an order for Products which has not yet been delivered to the Purchaser are, if the relevant Agreement is terminated pursuant to clause 6.2 prior to delivery, non refundable to the Purchaser.

12. INTELLECTUAL PROPERTY

12.1. ETQ is and shall remain the exclusive owner of the trade name and the registered trademarks “ETQ Amsterdam” and "ETQ".

12.2. ETQ shall remain the exclusive owner of all (other) intellectual and industrial property rights (which include but are not limited to: copyrights, trade mark rights, designs, design rights and any (other) right analogous to the above and/or pertaining to intangible property) relating to the Products it produces and/or sells under – inter alia - the (trade)name(s) “ETQ” and/or “ETQ Amsterdam” (the "Intellectual Property Rights"). The Purchaser expressly confirms that it does not acquire any Intellectual Property Rights and shall not attempt to acquire or register Intellectual Property Rights, nor shall the Purchaser act in any way that may create the impression with third parties that the Purchaser owns any Intellectual Property Rights.

12.3. Nothing in any Agreement and/or these terms and conditions shall be construed as conferring any license or granting any rights to Purchaser regarding any of the Intellectual Property Rights mentioned in clause 11.1 and/or 11.2.

12.4. Purchaser shall refrain from doing anything that might negatively affect the (value or the esteem of) Intellectual Property Rights mentioned in clause 11.1 and/or 11.2 and/or ETQ as a whole.

12.5. The Purchaser shall not reproduce the Products.

12.6. The Purchaser shall not partially or entirely remove or alter any marks, trade names and designations (including, without limitation, designations regarding copyrights or other Intellectual Property Rights) affixed on the Products by or on behalf of ETQ or its suppliers.

13. MISCELLANEOUS

13.1. The Purchaser is obliged to treat the Agreement and all information and data obtained from ETQ, which the Purchaser should reasonably know to be confidential as such.

13.2. The Purchaser shall act in accordance with all applicable law. In particular, the Purchaser shall never be involved in any way, whether actively or passively, directly or indirectly, in any form of corruption, violation of the rights of its employees of child abuse. The Purchaser is responsible for the health, safety and well being of its employees and subcontractors, compliance with environmental protection legislation and encouraging and obliging its employees to comply with such rules. In the event of violation of the obligations under this Article 12.1 ETQ has the right, without prejudice to other rights, to terminate the Agreement in part or in full with immediate effect.

13.3. ETQ will at all times be permitted to assign its rights and obligations under the Agreement, or the Agreement in its entirety, to any group company or any third party without the prior permission of the Purchaser. The Purchaser hereby grants its permission or cooperation in advance for such assignment.

13.4. All Agreements, amendments and additions thereto must be in writing.

13.5. ETQ has the right to amend these General Terms and Conditions unilaterally and declare the amended General Terms and Conditions applicable to the Agreement. Such amendments will be binding upon the Purchaser after it has been so informed in any way by ETQ and handed to the Purchaser without the Purchaser explicitly opposing the same.

13.6. If any provision in these General Terms and Conditions is invalid or otherwise non-binding, the other provisions will remain in full effect. In that event, the invalid provision will be replaced by a valid provision in accordance with the purpose and purport of these General Terms and Conditions, such that the new provision differs from the invalid provision as little as possible.

13.7. The Purchaser shall immediately inform ETQ in writing of any change to its name or address. In the event of failure to do so, the documents will be deemed to have been received at the address last known to ETQ.

14. DISPUTES AND APPLICABLE LAW

14.1. Any Agreement shall be solely subject to and construed in accordance with Dutch law. The provisions of the Vienna Sales Convention (CISG) are expressly not applicable.

14.2. All disputes, which may arise between parties in connection to the agreement, shall be brought before the competent court in Amsterdam, unless ETQ prefers to subject itself to the opinion of another competent court in the Netherlands. ETQ has the right, in its own discretion, to present the dispute to a competent court in another jurisdiction if the Purchaser has its registered office there.