General Terms and Conditions of Delivery and Payment of Brandmerchandising BV
1. General
1.1 In these general terms and conditions of delivery and payment, the following terms shall have the meanings assigned to them below:
• BM Energy: The trade name of Brandmerchandising B.V., Keurmeesterstraat 10, 1187 ZX Amstelveen, registered in the Dutch Chamber of Commerce under registration number 64289052.
• Customer: The contracting party of BM Energy, the party to whom BM Energy sends a quotation, the party who requests BM Energy to issue a quotation, or the party placing an order with BM Energy.
• Third party: Any other (legal) person or entity besides the Customer or BM Energy.
• Supplier: The party from whom BM Energy procures goods to be delivered to the Customer.
• Agreement: Any type of contract in which BM Energy is a contracting party.
• General Terms and Conditions: These general terms and conditions of delivery and payment of BM Energy.
1.2 These General Terms and Conditions apply to all offers and quotations by, agreements with, and deliveries made by BM Energy, unless expressly agreed otherwise in writing. Under no circumstances shall BM Energy be deemed, whether explicitly or implicitly, to have accepted the applicability of any general purchase or sales conditions of the Customer or of third parties.
1.3 Insofar as any (parts of) articles in these General Terms and Conditions are declared void or are nullified, the remaining (parts of) articles shall remain fully in effect.
1.4 Headings above articles are provided solely for ease of reading and do not extend or limit the meaning of the articles or parts thereof.
1.5 In the event of any differences in interpretation 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 binding upon BM Energy only insofar as 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 by BM Energy in the execution of any agreement, may invoke these General Terms and Conditions against the Customer.
2. Offer and Agreement
2.1 Every offer made by BM Energy is without obligation unless BM Energy has expressly stated in writing that an offer is not without obligation. Statements and data on BM Energy’s website concerning items for sale are deemed an invitation to make an offer and are not binding on BM Energy.
2.2 Agreements with BM Energy come into effect, among other ways, through (written) documentation by BM Energy of the agreement, or through the Customer’s acceptance of 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 serve as approximate indications only and are not binding on BM Energy.
2.4 Oral promises made by employees of BM Energy do not bind BM Energy unless these promises have been confirmed in writing to the Customer by a person authorized 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 items to be delivered.
2.6 Any advice given by BM Energy for which BM Energy does not charge the Customer is provided without obligation. No rights can be derived by the Customer or third parties from such advice.
2.7 If a Customer is only willing to accept an offer or quotation in part, no partial agreement shall be concluded unless BM Energy confirms in writing its willingness to be bound by an offer or quotation partially accepted.
3. Prices and Payment Terms
3.1 The prices quoted or confirmed by BM Energy apply solely to the goods specified in the offer, quotation, or confirmation. Unless otherwise agreed with the Customer, prices exclude transport costs, insurance and packaging costs, import and export duties, and all other government-imposed levies in any country, as well as other additional costs.
3.2 The prices quoted or confirmed by BM Energy are subject to changes in external factors over which BM Energy has no control. Price increases associated with such factors will be passed on if more than one month elapses between the date of the agreement and the date of delivery.
3.3 Payments are only considered valid if they are made by transfer to the bank account named on BM Energy’s invoice, and only insofar as BM Energy’s invoice number is stated as the payment reference for the transfer.
3.4 Every BM Energy invoice must be paid within fourteen days of the invoice date and, in any case, prior to transport or dispatch of the goods, unless otherwise agreed in writing. BM Energy is entitled to send partial invoices for partial deliveries.
3.5 If payment is not made on time, the Customer is in default and, from the due date onward, statutory commercial interest becomes payable.
3.6 Payment is due without any right to discounts, suspension, or set-off.
3.7 If the Customer fails to pay on time, BM Energy is entitled to hand over its claim for collection. Extrajudicial collection costs shall be borne by the Customer. These costs amount to at least 15% of the invoice amount plus the accrued interest, with a minimum of €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.
4. Delivery, Force Majeure
4.1 BM Energy is a trading company and maintains only limited stocks. Agreed delivery times are indicative only and are not binding on BM Energy. The delivery period does not commence before the Customer has provided BM Energy with all (technical) information required for delivery. Any exceeding of the delivery period by BM Energy does not entitle the Customer to damages, to terminate the agreement, or to suspend its own obligations under any agreement or prior agreements.
4.2 The delivery period is extended by the duration of any delay in the Customer’s fulfillment of its obligations under the agreement or any 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 execute an agreement by means of partial deliveries.
4.4 Delivery takes place only after all amounts owed by the Customer to BM Energy have been paid, unless otherwise agreed in writing.
4.5 A breach not attributable to BM Energy, hereafter “force majeure,” as referred to in the Dutch Civil Code and case law, includes, among other things, delayed or incorrect deliveries by BM Energy’s Suppliers or carriers engaged by BM Energy, traffic congestion regardless of the cause, government measures, fire, water damage, interruptions in the supply of energy or in communication resources, hardware or software failures, internet outages, email disruptions, illness of persons involved in executing an agreement, destruction of BM Energy’s property, import or export barriers (whether or not as a result of Brexit), and theft.
4.6 If a force majeure situation, regardless of its cause, continues for more than three weeks after the delivery time indicated, both parties have the right to terminate the agreement with regard to the portion that has not yet been executed. The Customer only has this right after having issued a summons for performance to BM Energy and granted a reasonable period for compliance. To the extent that the Customer terminates an agreement (in part) due to force majeure, the Customer has no right to damages.
5. Transfer of Risk and Liability
5.1 At the time of delivery as referred to in Article 4.2, the risk in respect of the goods to be delivered transfers to the Customer, unless a different moment for transfer of risk is agreed in writing between BM Energy and the Customer.
5.2 If the Customer is not present at the place of delivery, BM Energy is entitled to leave the goods at the delivery address at the Customer’s expense and risk. If the Customer is not present at the agreed delivery time, BM Energy is also entitled to take the goods back, and the Customer is obliged to pay BM Energy the full costs of re-delivery and storage.
5.3 The Customer accepts that BM Energy is not liable for damage to delivered goods from the time of delivery, regardless of whether the Customer has actually taken possession of the goods at that time.
6. Inspection and Complaints
6.1 The Customer is obliged to inspect the goods at the time they are received.
6.2 The Customer must submit any complaints regarding the delivered goods in writing to BM Energy within seven days of receipt, or within seven days of the moment of delivery as referred to in Article 5.2. After this period, the Customer forfeits the right to invoke any defect or inaccuracy relating to the delivered goods, unless it concerns a warranty as referred to in Article 7.
6.3 Without prior written consent from BM Energy, the Customer is prohibited from returning goods about which complaints have been made to BM Energy. The granting of consent by BM Energy to return goods does not imply acknowledgement by BM Energy of any complaint. Any return shipment from the Customer to BM Energy, whether or not BM Energy has granted permission, is always at the Customer’s cost and risk.
6.4 If a complaint has been lodged but not yet resolved, the Customer is not entitled to suspend its (payment) obligations towards BM Energy under any agreement.
7. Warranty
7.1 BM Energy only guarantees the sound condition of delivered goods when used normally by the Customer and in accordance with the Supplier’s (usage) instructions. Goods delivered by BM Energy that exhibit defects shall, at BM Energy’s discretion, be replaced or repaired free of charge, provided the Customer proves that these defects arose within six months of delivery and are the direct result of incorrect or faulty materials. BM Energy provides no guarantee for any specific use of the delivered goods intended by the Customer or third parties.
7.2 Insofar as the Customer or any third party carries out or arranges any repair or modification on the delivered goods, or processes or treats 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 Any warranty provided applies solely to the Customer and not to third parties.
7.4 Regardless of the warranty provisions contained in these General Terms and Conditions, BM Energy is never obliged to provide more warranty than the warranty obligations BM Energy actually obtains from its own supplier. Upon the Customer’s first request, BM Energy shall, as far as possible, transfer its rights to claim warranty from its Supplier to the Customer.
8. Liability and Indemnification
8.1 BM Energy is never liable for any damage sustained or to be sustained, unless such damage is the direct and sole consequence of gross negligence or willful misconduct by BM Energy or by a third party involved by BM Energy in the execution of any agreement.
8.2 Insofar as BM Energy is liable, its liability is at all times limited to fulfilling the commitments BM Energy has undertaken on the basis of the warranty provisions set forth in Article 7 of these General Terms and Conditions.
8.3 Further limiting its liability, the Customer acknowledges that only damage that is covered by BM Energy’s insurance, and up to the amount actually paid out by BM Energy’s insurer, is eligible for compensation. If BM Energy’s insurer does not make any payment, BM Energy shall never be obliged to compensate damages exceeding the invoice amount of the goods to which the liability relates.
8.4 Notwithstanding the provisions in Articles 8.1, 8.2, and 8.3, under no circumstances shall BM Energy be obliged to compensate indirect damage sustained by the Customer or third parties. Such indirect damage includes, but is not limited to, consequential damage, delay damage, replacement damage, personal injury, business interruption, lost profits, lost revenue, damage caused by third parties engaged by BM Energy in the execution of an agreement, or damage resulting from any other usage of the delivered goods than for which they are intended.
8.5 The Customer is obliged to insure itself adequately against damage in the broadest sense of the word that might result from goods delivered by BM Energy.
8.6 The Customer is obliged to indemnify BM Energy against any third-party claims relating to goods delivered by BM Energy to the Customer.
8.7 Under penalty of forfeiture, legal claims against BM Energy must be initiated within one year after timely notification of a complaint with the competent court.
9. Retention of Title
9.1 BM Energy retains title to the goods to be delivered or already delivered under any agreement until all its claims under that agreement have been paid in full.
9.2 The Customer is obliged to store separately and handle with care any goods subject to BM Energy’s retention of title. In particular, the Customer is obliged to insure these goods properly at its own expense against damage caused by fire, water, and theft, at their replacement value.
9.3 In the event of attachment/execution by third parties, or (imminent) bankruptcy, suspension of payments, or debt restructuring, the Customer must inform BM Energy of this in writing without delay, so that BM Energy can take appropriate measures to protect its interests.
9.4 If the Customer fails to meet any of its obligations towards BM Energy, BM Energy shall be entitled, without any notice of default being required, to repossess or have repossessed the goods that remain its property wherever they may be located. The Customer is liable for all costs incurred by BM Energy to exercise its retention of title, including but not limited to transport and storage costs. The Customer authorizes BM Energy to enter all premises or properties owned, rented, or used by the Customer in order to exercise the rights associated with its retention of title.
10. Applicable Law and Competent Court
10.1 All agreements with, and any offer or quotation from BM Energy, as well as any disputes arising therefrom, shall be governed exclusively by Dutch law, to the exclusion of the laws of any other state and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.2 Disputes with BM Energy shall be brought before the competent court in Amsterdam, the Netherlands. To the extent that a dispute by mandatory law falls under the jurisdiction of the District Court, Subdistrict Sector (Kanton), the competent court shall be determined in accordance with the rules of the Dutch Code of Civil Procedure, in deviation from the above.
