General terms and conditions of sale and delivery

 

1. Definitions
1.1. The following definitions apply to these general terms and conditions:
Prooff: Prooff Collection BV,
established in Rotterdam, the Netherlands;
The Client: the counterpart to Prooff;
The Agreement: the purchase and sales agreement.


2. General
2.1. These general terms and conditions apply to all offers, orders and
agreements between Prooff and the Client, unless they are explicitly
stated in writing not to apply.
2.2. The application of any general terms and conditions used by the Client
is explicitly excluded.
2.3. If any provisions in these general terms and conditions are void or
revoked by the courts, the remaining provisions remain in force. Prooff
and the Client shall negotiate substitute provisions that are in line with the
original provisions in terms of purpose and scope.


3. Offers
3.1. All offers are free of engagements, unless indicated otherwise in
writing. Offers are valid for a period of 30 calendar days from the date of
the offer.
3.2. Prooff cannot be held to her bids or offers if the Client can reasonably
understand that the bids or offers, or any part thereof, is a result of an
obvious mistake or error.
3.3. An agreement shall take effect either once an offer is accepted by the
Client and confirmed by Prooff in writing as an order, or if an order placed
by the Client is confirmed in writing by Prooff or Prooff started the
execution of the order.
3.4. If the agreed price, discounts or delivery times are based on an
apparent error, Prooff is entitled to correct the mistakes or to cancel the
order; the Client has the same right to cancel the order.


4. Prices and payment
4.1. All quoted prices are exclusive of VAT and other government duties, as
well as any costs incurred in the context of the agreement, such as
administrative, transport and COD (collect on delivery) charges.
4.2. If an additional discount is agreed for the purchase of a certainty
quantity or range in an order, Prooff is not obliged to apply the additional
discount if fewer or different goods than those agreed are ordered.
4.3. Unless explicitly agreed otherwise, all orders are accepted on the
basis of prepayment.
4.4. Prooff is entitled to periodic billing.
4.5. A. Payment condition for the prepayment invoice: the amount invoiced
to be paid in advance must be paid strictly within 30 days after the date of
the order confirmation, to be paid in the currency mentioned on the
invoice, but no later than 5 working days before the scheduled delivery
date, into the bank account of Prooff.
B. Payment condition for non-prepayment invoice: net payment strictly
within 30 days after the date of the order confirmation, to be paid in the
currency mentioned on the invoice, unless explicitly agreed otherwise.
The above does not prevent Prooff, for reasons of its own, from requiring
at any time security for compliance with the financial obligations.
4.6. If the invoiced amount is not paid into the bank account of Prooff
within the payment term, the Client is in default by law without the need
for any declaration of default. The Client is then liable for interest on the
unpaid amount of 1% per month or part month, or at the statutory interest
rate for commercial transactions current in the Netherlands in case the
latter is higher.
4.7. In the event that collection becomes necessary, all collection costs
are payable by the Client. These costs equal 10% of the principal owed
amount with a fixed minimum of € 250,00.
4.8. If the debt collection involves court proceedings then all legal costs,
including legal advice and representation in court and out of court, as well
as all execution costs, shall be paid by the Client.
4.9. Even if the Client is of the opinion that the quality of the delivered
goods is not in accordance with what he purchased, this does not release
him from the obligation to pay. Objections to the amount of the bill do not
suspend the payment obligation.
4.10. If fewer goods are delivered or received in good condition than
invoiced and the Client objects in good time, the Client remains liable for
the amount invoiced in respect of the goods received in undamaged
condition.


5. Cancellation
5.1. No order can be cancelled without the specific consent of Prooff. If
Prooff should agree to the whole or partial cancellation of or change to
an order, it may attach financial conditions to this. If Prooff agrees for
one specific order, such does not create any rights in case of subsequent
requests by Client.
5.2. If costs are already incurred in the performance of an agreement and
Prooff agrees to cancel an order in whole or partly, the Client shall pay
these costs to Prooff on first demand.
5.3. In the event of a liquidation, (application) suspension of payments,
bankruptcy or attachment -if and where the attachment has not been
cancelled within three months- at the expense of the Client, or debt or
other circumstances in which the Client cannot freely dispose of his means
available, it is free to Prooff to terminate the agreement immediately or to
cancel the order, agreement or order confirmation without any obligation
to pay any damages or compensation. The claims that Prooff has on the
Client are in that case immediately due.


6. Delivery and transport damage
6.1. Delivery is based on ex-works from the manufacturer the Netherlands
or from the warehouse of Prooff the Netherlands. In case delivery has
been agreed on the basis of ‘freight paid’, Prooff is entitled or will charge
the Client extra freight costs in relation to the m3 of the goods ordered.
6.2. The Client is obliged to receive the goods at the moment they are
delivered by Prooff, or at the moment that Prooff has made the goods
available to the Client.
6.3. If the Client refuses to receive the goods or fails to provide the
information or instructions to enable delivery, the Client is fully liable
towards Prooff for costs of extra handling, storage and insurance, such
with a minimum of € 250,00 per fully or partially not received order. Such
costs must be paid by the Client before the goods shall be redelivered by
Prooff or shall be handed over to the Client.
6.4. Notification of a delivery date is always indicative, not a deadline and
always ex-factory. If the delivery date is exceeded, the Client is still obliged
to purchase the goods unless before delivery the Client serves Prooff with
a written notice of default, providing Prooff with a reasonable period in
which to deliver, and this period also has expired.
6.5. Prooff is entitled to deliver the order partially and to invoice
separately each partial delivery.
6.6. The delivery term for goods, where it is agreed that the goods, all or in
part, shall be paid in advance, starts to run from the sixth day following the
day after the date of the order confirmation.
6.7. If a down payment invoice is not paid, Prooff has the option either to
partly dissolve or dissolve the agreement, or seek compliance. In the latter
case, Prooff is entitled to amend the price previously agreed in line with
any subsequent price increases. The obligation of Prooff to deliver will be
suspended for the same duration as the non-payment.
6.8. Upon delivery, the Client shall check the condition of the packaging
and, if this has any defects, make a clear note on the forwarding note or
delivery bill. If there is any serious defect to the packaging, the Client shall,
in the presence of the driver, open the packaging to check the goods for
damage. The Client shall notify Prooff immediately and e-mail (a)pictures of
the condition in which the goods and packaging have been delivered. See
also article 7.4.
6.9. Prooff delivers all products unassembled. Prooff provides an assembly
manual with the delivery of the goods. The Client himself is responsible
for assembly of the goods. Any damage caused as a result of unskillful
assembly cannot be recovered on Prooff.


7. Differences, complaints and returns
7.1. Small differences to the specifications of certain products can occur
in terms of shape or colour, depending on the material from which the
products are manufactured. Despite any such differences, Prooff has
nevertheless complied with its obligation to deliver.
7.2. If the goods are not delivered in good condition or, in the opinion of
the Client, they are not in accordance with the order or not all goods have
been delivered as per the order, the Client shall immediately notify Prooff
in writing, and in any event not later than the fifth working day following
the day on which the goods are received. Prooff is not obliged to deal with
complaints that are received too late. If the Client files a complaint, it must
provide a description as clear as possible of the defect and attach a digital
photo to the e-mail.
7.3. A complaint is not justified if the goods are not used in accordance
with the instructions for use, if they are used inexpertly or not used for the
purpose for which they were intended or if any defect is caused by the lack
of care of the Client.

7.4. If the complaint is found to be justified by Prooff, then Prooff has the
choice either to dissolve the agreement with regard to the defective
goods and crediting the Client, or replacing the defective goods. If it turns
out that a complaint is unfounded, then the costs it incurred, including
research costs and costs supported by Prooff, are for the account of the


Client.
7.5. Goods that are the subject of a complaint may only be returned to
Prooff if Prooff has given prior written consent for this or has indicated
that it wishes for the goods to be returned. In the latter case, the goods
shall be returned to Prooff as soon as possible. If the goods are not
returned within eight days of the request for their return, it is assumed
that the Client wishes to keep the goods and has withdrawn the complaint.
In such a case, the full purchase price is payable for the goods.
7.6. If in response to a justified complaint Prooff has replaced the
defective goods, then Prooff is deemed to have delivered such goods in
good time, even if the deadline set by the Client has expired.
7.7. In the event of a complaint, the Client shall inform Prooff in writing by
e-mail or fax with details or photographs of the complaint.
7.8. In case of a timely complaint this does not suspend the Client from
his payment obligations. The Client is held to accept and pay the ordered
goods.


8. Suspension and termination
8.1. Prooff is entitled to suspend in whole or in part performance of its
obligations under any agreement or to partly dissolve or dissolve the
agreement if but not restricted to:
- the Client has failed to comply on time, in full or at all with its obligations
under previous agreements;
- having entered into the agreement, Prooff has good grounds to fear that
the Client will not (be able to) comply with its payment obligations;
- the Client was requested to provide financial security but has failed to
supply any such security or any adequate security.
8.2. If, due to delay on the part of the Client, Prooff can no longer be
expected to comply with the agreement upon the terms originally agreed,
then Prooff is entitled to dissolve the agreement.
8.3. Prooff is also entitled to partly dissolve or dissolve the agreement if
circumstances arise whose nature and extent means that Prooff cannot
be expected according to the principles of reasonableness and fairness to
perform the original agreement.
8.4. If the cause of the dissolution is within the scope of the risk of the
Client or is caused by any act or omission of the Client, Prooff is entitled to
claim for the costs it has incurred and for any loss of profit.


9. Liability
9.1. Prooff does not accept loss other than or in exceeding that specified
in the previous section, among which loss as a consequence of
non-delivery or non-delivery within the agreed term of goods ordered,
unless caused by a deliberate act or gross negligence on the part of
Prooff. If Prooff is liable on the grounds referred to in this section, then
any liability for loss of profit or consequential loss is explicitly excluded.
9.2. The liability of Prooff is at all times limited to a maximum of the amount
of the goods that are damaged. Liability for any further damage is explicitly
excluded.
9.3. Any other damage, including loss of profit and consequential losses,
resulting from failure to deliver on time or at all, is explicitly excluded.


10. Force majeure
10.1. In the event of force majeure, all obligations of either party are
suspended until the situation of force majeure has ended. If the force
majeure lasts longer than eight full weeks, then either party is entitled
to dissolve the agreement without any liability to compensate the other
party.
10.2. An exception on 10.1 is being made when force majeure commences
and Prooff has partly fulfilled its obligations under the agreement or is
still able to do so. Prooff is then entitled to invoice for all the parts of the
agreement it has complied with or will comply with. In such a case the
Client is obliged to pay this invoice as if it were a separate agreement.
10.3. ‘Force majeure’ includes -in addition to the circumstances prescribed
by legislation and case law- import and export bans by or due to any
government decision, the failure of suppliers or service providers of Prooff
to deliver on time or at all, suspension of work by, or a high amount of sick
leave amongst, the employees of Prooff or its suppliers.
10.4. Prooff is also entitled to rely on force majeure if the situation of force
majeure has started after Prooff should have fulfilled its obligations.


11. Retention of title
11.1. All goods delivered remain the property of Prooff until the Client
has fulfilled its obligations to Prooff in full. If any invoice remains unpaid,
Prooff’s retention of title shall also cover all goods previously delivered
which have been paid for by the Client.
11.2. Goods delivered by Prooff subject to retention of title may not be
sold.
11.3. The Client is not authorized to process, pledge or otherwise encumber
the goods subject to retention of title.
11.4. If any attachment is levied by a third party upon the goods subject to
retention of title, then the Client shall inform the party levying the
attachment of the retention of title and notify Prooff of this immediately.
11.5. The Client insures the goods subject to the retention of title against
fire, explosion, or water damage, as well as against theft. On demand by
Prooff, the Client shall provide a copy of the insurance policy, as well as
ensure that the rights under the insurance policy covering the goods
subject to the retention of title shall be transferred to Prooff or that
Prooff is subrogated in these rights.


12. Intellectual property rights and copyrights
12.1. Prooff retains the rights and powers it accrues on the basis of
intellectual and industrial legislation and regulations relating to all the
goods it supplies, in so far as these rights do not belong to any third party.
12.2. The Client may not have goods supplied by Prooff copied elsewhere,
or manufacture imitations thereof that differ in only minor details from the
goods supplied, or become directly or directly involved, or have any
interest in such activities.
12.3. Without the prior written approval of Prooff, Client is not entitled to
multiply photographs, designs or descriptions published in catalogues,
brochures, DVD’s and such, by –as an example- using these on the
internet. An authorisation by Prooff to use such information, does not
mean that third parties, like the author, may not object to any use and does
not affect the author’s rights.


13. Warranties
13.1. Prooff provides to the Client a guarantee to factory errors to the
supplied goods during and subject to the term of the suppliers guarantee
provided to Prooff.
13.2. Any kind of guarantee will expire if a defect is caused by or arising
from improper or in-appropriate use, improper storage, improper
maintenance, application of changes or attempt to make any change or
fixing other elements to the products or if the products are being used in
other than the prescribed way by Client or third parties. The Client is not
entitled to any warranty if the defect is caused by or arising from
circumstances where Prooff has no influence on, there by including
weather circumstances.


14. Applicable law / disputes
14.1. All agreements are subject to the Dutch Civil law of the Netherlands.
14.2. The court with exclusive jurisdiction is the Court established in
Rotterdam, the Netherlands. This also applies if the goods have been
delivered in part or entirely abroad or if the Client has its registered office
or is domiciled abroad.
14.3. The parties shall always endeavour to resolve a dispute amicably,
before any application is made by either party to the courts.
14.4. The terms of the Vienna Sales Convention shall not apply.


15. Translation / versions
15.1. The version that is binding is the latest version at the time the
agreement is entered into.
15.2. These general terms and conditions of sales and delivery are
deposited at the Rotterdam Chamber of Commerce at 17 June 2013.


Rotterdam,
version dated 1 January 2013
Prooff Collection bv
www.Prooff.com