Terms & Conditions
1.1 In these General Terms and Conditions (hereinafter „Terms and Conditions“) the following definitions apply:
Purchase Agreement means all agreements between the Seller and the Buyer relating to the sale and purchase of goods and services by the Buyer from the Seller, as well as any (other) instruction given by the Buyer to the Seller and any act (legal or otherwise) related to the foregoing;
Buyer means any party, a legal or natural person, with whom the Seller entered into a Purchase Agreement with or to which the Seller supplies (or agreed to supply) goods and/or services, and any party that has given the Seller an instruction of another nature;
Seller means Showdown Displays Europe B.V. and/or any of its affiliated companies.
2. INITIAL PROVISIONS
2.1. These Terms and Conditions provide for the mutual rights and obligations of the Seller and the Buyer arising out of and in connection with the Purchase Agreement entered into between them. These Terms and Conditions apply to all offers and quotations of the Seller, to the Purchase Agreement, including any instructions and placed and/or accepted Orders (as defined in clause 4.2 below), and to any other act, legal or otherwise, between the Seller and the Buyer.
2.2. The Parties may agree to deviate from these Terms and Conditions, provided such agreement is made explicitly and is laid down in writing in the Purchase Agreement. Such provisions of the Purchase Agreement will then take precedence over provisions of these Terms and Conditions.
2.3. The Terms and Conditions form an integral part of the Purchase Agreement. In the event these Terms and Conditions and the Purchase Agreement contain conflicting provisions the Purchase Agreement prevails.
2.4. The Seller has the right to modify or amend these Terms and Conditions from time to time, which amendment or modification shall take effect as of the date of notification by the Seller to the Buyer. Rights and obligations arising to the parties prior to such a modification or amendment remain unaffected.
2.5. The Seller and the Buyer expressly agree that any general terms and conditions of the Buyer are not applicable to the Purchase Agreement.
3. SELLER’S OFFER
3.1. All of Seller’s offers, quotations, prices, price lists, advertisings, catalogues, whether or not displayed on the web site of the Seller and any other marketing means and materials as employed by the Seller, are merely informative and no particulars therein shall be binding on the Seller. Quotations and (price) offers from the Seller, are subject to modification or cancellation at any time. The Seller is not obliged to enter into any agreements to sell the goods.
3.2. The range of products of the Seller is continually being revised and updated. The Seller reserves the right to change specifications without prior notice.
3.3. The prices of goods are stated in the valid price list sent by the Seller to the Buyer or in the Seller’s price offer. The price lists and the price offers quote the prices of goods in euros (EUR). Unless expressly provided otherwise, the price under these Terms and Conditions means price without value added tax (hereinafter the “VAT”). The price will be charged to the Buyer after it is increased by VAT at its statutory rate. Unless provided otherwise, prices of goods are quoted without the costs of packaging and delivery. The prices are valid Ex Works Seller’s
warehouse in Přestanov, Czech Republic or Nederweert, The Netherlands, within the meaning of the latest version of the Incoterms as published by the International Chamber of Commerce.
3.4. The Seller reserves the right to alter any prices / discounts at any time without prior notice. The new prices / discounts shall apply as of the date of notification to the Buyer and, for the avoidance of doubt, to any pending or accepted offers, quotations and Orders.
4.1. To order goods, the Buyer will place and deliver an electronic order (i.e. by e-mail or via electronic purchasing system of the Buyer) to the Seller.
4.2. The order will include, among other things, information on:
4.2.1. The business name, the address of the registered office, electronic e-mail address and VAT number of the Buyer,
4.2.2. The type and the amount of the goods ordered,
4.2.3. Selected delivery option, (hereinafter jointly the „Order”).
4.3. Before purchasing any product of the Seller, the Buyer shall determine the suitability of the product for its intended use and the Buyer assumes all risks and liability whatsoever in connection therewith. The Seller shall not be liable for any loss or damage – direct, incidental or consequential arising out of the use of, or the inability to use, any of the products.
4.4. The Seller will treat information provided by the Buyer in the Order as truthful and accurate. The Order is binding for the Buyer and may not be revoked or amended after it has been delivered to the Seller. The Seller will confirm the Order without undue delay, however not later than 60 days following the delivery of the Order to the Seller, by sending a confirmation to the Buyer’s electronic mail address provided in the Order (hereinafter the „Buyer’s e-mail address”). The Seller is not obliged to accept the Order. The Seller reserves the right to make amendments or variations which do not substantially alter the terms of the Order.
4.5. Depending on the nature of the goods ordered (amount of goods, purchase price, expected delivery costs), the Seller may request that the Buyer make an additional confirmation of the Order (e.g. in writing or by phone) or that the Buyer pay a deposit on the purchase price and other costs (delivery, packaging).
4.6. The Purchase Agreement between the parties is considered to be concluded when the Buyer receives the Seller’s electronic confirmation of the Order sent to the Buyer’s e-mail address.
5. SUBJECT-MATTER OF PURCHASE AGREEMENT
5.1. By entering into the Purchase Agreement, the Seller undertakes to deliver goods specified in the Purchase Agreement (hereinafter the „Goods“) to the Buyer and to transfer the title to the Goods to the Buyer, upon the terms and conditions as set out in the Purchase Agreement, including, for the avoidance of doubt these Terms and Conditions, while the Buyer shall accept the Goods and pay the purchase price agreed in the Purchase Agreement together with all delivery costs to the Seller.
6. PAYMENT TERMS
6.1. The purchase price is agreed between the parties and is set out in the Purchase Agreement. If no purchase price is included in the Purchase Agreement, then the purchase price according to the Seller’s price list valid as of the date of the delivery of the Order to the Seller shall apply.
6.2. The purchase price and the costs of delivery of the Goods purchased under the Purchase Agreement will be paid by the Buyer by wire transfer to the Seller’s bank account at ING Groep N.V., The Netherlands no. NL33INGB0006579906 (hereinafter the „Seller’s Bank Account“) following an invoice. The Seller may issue the invoice and send it to the Buyer’s e-mail address together with the Seller’s electronic confirmation of the Order or anytime thereafter. Any amounts invoiced shall by payable within twenty one (21) days following the issue date of the invoice. If sending or delivery of the invoice fails, the Seller is entitled to issue a hard copy of the invoice and send it by mail to the Buyer’s registered office
6.3. Unless provided otherwise, the Buyer is obliged to, together with the purchase price, pay the Seller the costs of delivery of the Goods including but not limited to any and all taxes, customs, duties or other levies. Unless provided otherwise, provisions concerning payment methods and due date of the purchase price also apply to payment and due date of the costs of delivery of the Goods.
6.4. The Seller is a VAT payer. Statutory VAT will therefore be added to the purchase price if necessary according to the generally applicable legislation.
6.5. Unless agreed otherwise, discounts granted by the Seller on the purchase price cannot by combined.
6.6. The Buyer is obliged to state a reference code with each payment of the purchase price or a deposit on the purchase price. The Buyer’s obligation to pay the purchase price of the Goods or the deposit is deemed met when the purchase price or the deposit is credited to the Seller’s account.
6.7. The Seller is entitled to anytime request a partial payment (e.g. for a part of the Goods) or payment of a reasonable deposit on the purchase price.
6.8. If the Buyer does not pay an invoice from the Seller by its due date, the Buyer will be in default by operation of law, without a notice of default being required, and the Seller will be entitled to claim a late payment interest of 0,5 % on the amount due for every day (or part thereof) the Buyer remains in default. If the Buyer defaults on payment of the purchase price of the Goods, the deposit on the purchase price or other payments due under the Purchase Agreement, the Seller is entitled, without prejudice to any of its (other) rights under the Purchase Agreement or at law, to rescind the Purchase Agreement in writing, with immediate effect and without a notice of default being required, and/or to immediately suspend performance of any of its obligations thereunder until all the Buyer’s obligations have been fully paid.
6.9. If payments made by the Buyer fail to cover all outstanding amounts owed to the Seller, the Buyer’s payments will be used to pay the outstanding amounts in the following order: late payment interests, other interests and costs of collection of the outstanding amounts, contractual penalties, outstanding principal sum first due.
6.10. The Buyer shall not set off any debt to the Seller against a claim on the Seller, nor shall the Buyer suspend any of its obligations towards the Seller.
6.11. If the Buyer’s registered office is in the EU outside the The Netherlands, the Buyer will observe VAT regulation applicable in this member state. The Buyer will, without being requested, inform the Seller of its valid VAT ID number and its possible changes, and confirm that the Goods have been transported from The Netherlands/Czech Republic to the agreed location. Upon Seller’s first request, the Buyer is obliged to provide information about itself as an entrepreneur (a taxable person), information on transport of the delivered Goods and information needed by the Seller to meet its statistical notification obligations (information collected in the Intrastat database). If the Buyer is not a registered VAT payer, it will inform the Seller before entering into the Purchase Agreement. The Buyer is also obliged to reimburse the Seller for any expenses incurred due to the Buyer’s failure to provide complete or accurate information on import VAT. The Buyer is obliged to pay the Seller any additional VAT assessed by the respective tax authority (in the Czech Republic or any other EU member state) and reimburse the Seller for any other damage (including, without limitation, any sanctions, penalties or late payment interests) incurred due to the Buyer’s failure to provide complete or accurate information relevant to correct payment of VAT.
7. DELIVERY OF GOODS
7.1. Unless agreed otherwise in the Purchase Agreement, the delivery of the Goods, and the rights and obligations of the parties in relation thereto, in addition to the rights and obligations that are set forth in the Purchase Agreement, including these Terms and Conditions, shall take place in accordance with Free Carrier (FCA), Přestanov, Czech Republic, or Nederweert, The Netherlands, within the meaning of the latest version of the Incoterms as published by the International Chamber of Commerce. In case of a conflict between this Incoterm and the Purchase Agreement, including these Terms and Conditions, the Purchase Agreement prevails.
7.2. Unless agreed otherwise in the Purchase Agreement, if the Goods are intended to be exported into a country outside of the EU, the customs clearance for export of the Goods from the EU will be arranged by the Seller at the expense of the Buyer. The import of the Goods in the country of destination including the customs clearance of the Goods for the import into the country of destination will be arranged by the Buyer at the expenses of the Buyer.
7.3. The Buyer has the obligation to accept delivery of the Goods. If the Buyer, for whatever reason, fails to accept the Goods upon delivery, the Seller is entitled, without prejudice to any of its other rights under the Purchase Agreement or at law, to claim reimbursement of costs incurred due to such failure to accept (timely) delivery by the Buyer, including for the avoidance of doubt, any costs incurred by the Seller in connection with additional transport, custody and storage, and to rescind the Purchase Agreement in writing, with immediate effect and without notice of default being required.
7.4. If, due to circumstances that are attributable to or fall within the scope of risk of the Buyer, the Goods must be delivered repeatedly or by a different delivery method than specified in the Purchase Agreement, the Buyer is obliged to reimburse the Seller for all costs incurred due to the repeated delivery or employment of another method of delivery.
7.5. When accepting the Goods from the carrier, the Buyer is obliged to check that the correct number of Goods are delivered (quantity) and that the packaging is intact; in case of damaged packaging or in case the number of Goods delivered deviate from the number of Goods ordered, the Buyer shall immediately, and ultimately within 48 hours from delivery, notify both the carrier and the Seller (the latter in accordance with clause 11.2 of these Terms and Conditions), subject to forfeiture of any rights of the Buyer. Acceptance of Goods shall be confirmed by the Buyer on a delivery note (by a signature and a stamp).
7.6. The Seller is entitled to make partial deliveries under the Purchase Agreement.
7.7. Delivery dates and times quoted or agreed shall not be considered a final deadline. In the event a delivery date and/or time is exceeded, this shall not constitute a default on the part of the Seller, nor shall the Seller be liable for (compensation of) any type of damages of the Buyer. The Buyer is not entitled to rescind the Purchase Agreement due to a delivery date and/or time being exceeded, unless the Seller fails to deliver the Goods concerned within a reasonable period from the delivery date originally quoted or agreed, of which period the Buyer shall be notified by the Seller in writing. A reasonable period within the meaning of the preceding sentence, shall be at least 30 calendar days.
7.8. The Seller is entitled to deliver the Goods before the agreed time. If the Seller delivers the Goods before the agreed time, the Buyer is not entitled to refuse the Goods.
7.9. The Seller will not be responsible or liable for any kind of delay in transit.
8. CANCELLATION OF ORDERS
8.1 A Purchase Agreement, or accepted Order in accordance with clause 4.6 above, can be cancelled by the Buyer without cost, by written notice to the Seller until twenty four (24) hours prior to the date the Order is put into production.
8.2 Orders for the production and delivery of custom made Goods cannot be cancelled by the Buyer.
9. PASSING OF TITLE TO GOODS AND RISK OF DAMAGE TO GOODS
9.1. If the Seller is obliged to hand over the goods to a carrier, the risk of damage to the Goods passes to the Buyer upon receipt of the Goods by the first carrier. If, at the time the Purchase Agreement is considered to be concluded, the Goods are already being transported, the risk of damage to the Goods passes to the Buyer upon receipt of the Goods by the first carrier (i.e. retroactively).
9.2. If the parties agreed that the Goods will be handed over in the Seller’s warehouse, the risk of damage to the Goods passes to the Buyer upon accepting the Goods from the Seller, or, if the Buyer fails to accept the Goods on time, at the moment when the Goods should have been accepted.
9.3. Damage to the Goods which occurred after the risk of damage to the Goods has passed to the Buyer has no impact on the Buyer’s obligations to pay the purchase price of the Goods.
9.4. The title to the Goods passes to the Buyer upon the Buyer paying the entire purchase price of the Goods.
9.5. If the purchase price is fully paid by the Buyer, the title passes as follows: If the Seller is obliged to hand over the Goods to a carrier, the title to the Goods passes to the Buyer upon the handover of the Goods to the first carrier. If the Goods are being transported at the moment of conclusion of the Purchase Agreement, the title to the Goods passes to the Buyer upon the conclusion of the Purchase Agreement. If handover of the Goods in the Seller’s warehouse was agreed, the title to the Goods passes to the Buyer upon the Buyer accepting the Goods from the Seller.
9.6. Until the title to the Goods passes, the Goods shall be stored by the Buyer separately from any other goods and the Buyer shall not interfere with any identification mark, labels batch numbers or serial numbers of Goods.
10. PROPERTIES OF GOODS, RELATED DOCUMENTS AND USE OF GOODS
10.1. When using or otherwise dealing with the Goods, the Buyer is obliged to adhere to all requirements ensuing from generally applicable legislation, documents provided by the Seller together with the Goods (technical manuals) and from instructions and information stated on the packaging of the Goods and in documents accompanying the Goods. When using or otherwise dealing with the Goods, the Buyer is obliged to act reasonably and take into consideration all information provided on the packaging and in documents accompanying the Goods.
10.2. Information provided in documents accompanying the Goods and on the packaging reflects the Seller’s current knowledge and experience and is based on the assumption that the Goods will be used properly under standard conditions and in compliance with the Seller’s recommendations.
10.3. The Seller hereby expressly reserves the right to change the technical parameters of the Goods.
11. INSPECTION, COMPLAINTS AND DEFECTS
11.1. The Buyer is obliged to inspect the Goods and services with due care as soon as possible after the date the Goods were delivered or should have been delivered and/or the services were performed or should have been performed.
11.2. Any possible complaints of the Buyer regarding the Goods delivered or services performed, must submitted to the Seller in writing at Seller’s registered office (hereinafter the „Complaint“).
11.3. If the Goods or services were delivered in a different quality or specification than agreed in the Purchase Agreement, or are damaged or in the opinion of the Buyer, otherwise contain a defect, the Buyer is obliged to file a Complaint with the Seller immediately, but ultimately within 3 working days after delivery of such Goods. If the Complaint is not filed within 3 working days after delivery of such Goods or services, the Goods and services will be deemed to be duly delivered/performed, subject to forfeiture of any rights of the Buyer. Together with the written Complaint, the Buyer will provide the Seller with documents supporting the Complaint, such as relevant delivery notices.
11.4. Filing a Complaint does not relieve the Buyer from its obligation to pay the purchase price of the Goods or services or to meet other obligations owed to the Seller.
11.5. If the Seller considers a Complaint to be well founded, the Seller will, at its option, deliver any missing Goods, repair defects in the Goods, deliver substitute Goods to replace the defective Goods or provide a reasonable discount on the purchase price. No Goods may be returned to the Seller without its prior written consent. Goods are returned at the Buyer’s cost and risk. Custom made goods are not returnable.
11.6. The Seller is not liable for defects, if, among other things, the Goods were not used in compliance with instructions provided by the Seller, whether or not in documents accompanying the Goods, by misconduct of the Buyer or a third party or if defects were caused by or are connected with force majeure on the part of the Seller.
12.1. The Seller shall not be liable for any type of damages incurred by the Buyer in connection with the delivery of the Goods and/or performance of the services, irrespective of whether such damages are the result of a breach of contract, (illegal) act or omission of the Seller or any third party engaged by it. Notwithstanding the previous sentence, the obligation of the Seller to compensate damages of the Buyer shall in any event be limited to the purchase price (to be) paid by the Buyer for the Goods and/or services concerned. The exclusion, or limitation of liability as set out in this clause 12.1, shall not apply in the event damages are the result of the intent (opzet) or wilful recklessness of merely the executive staff of the Seller.
12.2. The Buyer shall indemnify the Seller from and against all claims of third parties against the Seller in connection with the delivery of Goods or the performance of services by the Seller to the Buyer, unless and in so far as the Buyer demonstrates that the claim of the third party or third parties concerned is not related in any way to any circumstance(s) that fall within the Buyer’s scope of risk.
12.3. All legal claims of the Buyer against the Seller, will lapse after one (1) year from the date on which 1) the obligation the claim relates to was or should have been performed by the Seller and/or 2) an event occurred that caused damage(s).
13. INFORMATION PROVIDED BY SELLER ON SALE OF GOODS
13.1. In direct connection with the sale of Goods, the Seller may provide the Buyer with non-binding informative recommen¬dations on the Goods and their possible use. Unless agreed otherwise in writing, these recommendations are not binding with respect to the properties of the Goods and the possible use of the Goods by the Buyer, and do not constitute any warranty or promise of any kind, including any promise that the Goods are fit for a particular purpose.
14. FORCE MAJEURE
14.1 In the event of force majeure on the part of either party, the performance of the Purchase Agreement shall be fully or partly suspended for as long as the force majeure situation continues, without either party being liable for compensation of any type of damages of the other party. If the force majeure situation is reasonably expected to last longer than six (6) months or has lasted for six (6) months either party is entitled to rescind the Purchase Agreement with immediate effect, without recourse to the courts, by giving notice in writing to the other party and without being liable to compensate any type of damages.
14.2 Force majeure on the part of the Seller shall include, but shall not be limited to:
a) non delivery, late delivery or partial delivery by suppliers of the Seller and/or lack of raw materials or (semi-finished) products required for the (production of the) Goods;
b) war and danger of war;
c) pandemics and/or epidemics;
e) import and export bans and (national and foreign) government measures preventing the performance of the Purchase Agreement by the Seller and/or rendering the performance of the Purchase Agreement more difficult and/or more expensive than was foreseen at the time of conclusion thereof;
f) strikes, fire, theft;
g) energy breakdowns and machine defects;
h) traffic jams and traffic breakdowns, complications with the transport of the Goods;
i) extreme weather conditions and/or natural disasters.
15. SUSPENSION AND DISSOLUTION
15.1 The Seller is entitled, at its option, to fully or partly suspend the performance of the Purchase Agreement, or to rescind the Purchase Agreement in full or in part, with immediate effect, by giving notice in writing to the Buyer, without recourse to the courts and without incurring any liability for any type of damages on the part of the Buyer, in the event that:
a) the Buyer fails to fulfil any of its obligations under the Purchase Agreement, including, for the avoidance of doubt, these Terms and Conditions;
b) a suspension of payments or bankruptcy of the Buyer is applied for or is granted;
c) the Buyer’s enterprise is sold or discontinued;
d) Permits which are required by the Buyer for the performance of the Purchase Agreement are revoked; or
e) a (prejudgment or enforceable) attachment is levied on any of Buyer’s operating assets
16. OTHER RIGHTS AND OBLIGATIONS OF PARTIES
16.1. If the parties agreed that payment of the purchase price shall be secured, the Buyer will, at the agreed time or sufficiently in advance before the agreed delivery of the Goods or upon the first request of the Buyer, provide the Seller with documents proving that such security exists. If the Buyer fails to submit such documents, the Seller may suspend delivery of the Goods until the documents are provided. If the Buyer fails to secure the payment of the purchase price within an additional period of time granted by the Seller, the Seller may withdraw from the Agreement.
16.2. The Seller may use the Buyer’s business name or trade name for marketing purposes, e.g. as a reference, and in all its promotional materials (regardless of the form of such promotional materials or the manner in which they are disseminated).
16.3. The Buyer agrees to receiving information concerning the Goods, information concerning the Seller’s services and business activities and other commercial communications per e-mail.
16.4. Copyright, trademarks or other intellectual property rights of any product manufactured by or on behalf of the Seller or any design, illustration or drawing produced by the Seller remains the sole property of the Seller unless expressly agreed otherwise in writing between the parties.
14.5. The Buyer may not assign, unilaterally set off or pledge any amount receivable from the Seller on the basis of any Purchase Agreement.
14.6. Provisions of these Terms and Conditions or a Purchase Agreement, which are or will become invalid or ineffective will be replaced by valid and effective provisions of which the economic purpose will be as close as possible to the economic purpose of the original provisions. The validity and effects of all other provisions remain unaffected.
17. GOVERNING LAW AND JURISDICTION
17.1. The legal relationship between the parties is exclusively governed by Dutch law, including, for the avoidance of doubt, the jurisdiction clause. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
17.2. Any disputes arising out of or in connection with these Terms and Conditions or any Purchase Agreement between the Seller and the Buyer shall be exclusively resolved by the court with jurisdiction in Amsterdam, the Netherlands.
These general conditions are valid for Showdown Displays Europe B.V. (version June 2020).