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GENERAL TERMS AND CONDITIONS OF BUSINESS OF BROSHUIS BV

If you are a Consumer and your purchase is for private purposes, you must agree to the Consumer Conditions.

1. Introduction

 

These conditions (the “Conditions”) apply to all Products that are sold by or on behalf of the customer (the "Customer") (the company that undertakes to purchase the Broshuis Products) directly from Broshuis B.V. ("Broshuis") for own internal use under the exclusion of the Customer's general and purchase terms and conditions. These Conditions, together with Broshuis' Order Documents (described in detail below), form the full contract between the Customer and Broshuis for the purchase of Products ("the Contract"). These documents apply in the following order of priority: (1) Order Documents; and (2) these Conditions.

If there exists a separate agreement between the Customer and Broshuis for the purchase of Products, that contract is applicable instead of these Conditions.

 

2. Definitions

 

Confidential Information”: information of the disclosing party that is not common knowledge, such as software, product plans, prices, marketing and sales details, lists of buyers, know-how or trade secrets, which might be referred to or regarded as confidential or given the circumstances around the disclosure must be treated as confidential.

Items to be Delivered": tangible and intangible objects, including drawings, calculations, findings, manuals, procedures and recommendations that have been made by Broshuis .

 “Materials” all content and other items that are included in or form of Products or Items to be Delivered.

Order Documents”: the order confirmation and/or invoice that Broshuis sends the Customer describing the Products purchased by the Customer under the Contract, in addition to the Prices, payment conditions and other provisions.

Prices” the price owed for the Products excluding VAT, and other levies imposed by the government and excluding transport costs, the aforesaid subject to Article 3.2.

Products:” the products that Broshuis supplies under the Contract.  “Overview of

Third-party Products:” products that are not Of The Brand Broshuis .

 

3. Orders, Prices and Payment

 

3.1 Quotations issued by Broshuis are valid for 15 days, unless stated otherwise in the quotation.

3.2 Prices for the Products are stated on the Order Documents or Service Documents provided by Broshuis. In the event of delivery in parts,Broshuisparts, Broshuis may need to adjust the Prices for Products because of changes to exchange rates, taxes, rights, levies, freight prices and purchase costs. Quotations provided by Broshuis are exclusive of VAT and any other taxes, levies and transport costs, unless expressly provided otherwise in the quotation. Such costs are payable by the Customer, in addition to the prices stated, and may appear as separate items on the Order Documents.

3.3 Payment for Products must be received by Broshuis before it ships the Products, in other words - if agreed in writing - within the period stated on the Order Documents or, if this is not specified, within 30 days of the invoice date. Payment must be made by bank transfer into the account specified by Broshuis (which might be changed from time to time). The payment term is final and its non-compliance constitutes a default. The payment terms for the Customer apply subject to a check of the credit worthiness by Broshuis. Broshuis is entitled to charge the statutory commercial interest over amounts not paid on time (whether or not following legal intervention) until full payment has been made. If an amount owed by the Customer to Broshuis under the Contract has not been paid on the due date, Broshuis is entitled (without prejudicing any of its rights or legal remedies) to cancel performance of the Contract or to cancel or suspend a possible order, including by suspending delivery of the Products until a payment or credit arrangement has been set up to the satisfaction of Broshuis. Broshuis may invoice for parts of the order separately.

3.4 All payments made or to be made by the Customer to Dell under the Contract are free from any restrictions or conditions and without any discount, deduction or set-off.

3.5 The Customer agrees to the sending or provision of Broshuis invoices by electronic means. The Customer shall send Broshuis a paper invoice upon the Customer's request at an additional fee, subject to prior notification.

 

4. Changes to Products

 

Changes may be made to a Product after a Customer has placed an order but before Broshuis ships the Product; the Products received by the Customer may deviate slightly from the Products ordered by the Customer, but shall always meet or exceed the physical functionality and performance of the Products originally purchased .

 

5. Products

 

5.1 Broshuis shall deliver the Products at the Customer's address stated on the Order Documents. Delivery dates are not binding and the time of delivery is not a deadline whose non-compliance constitutes a default The delivery must take place within a reasonable period if no delivery dates are stated. Products may be delivered in instalments. Broshuis is not liable for loss (including loss of profits), expenses or costs, or damage resulting directly or indirectly from delays in the delivery of Products (even if this is caused by negligence on the part of Broshuis) and the Customer is not entitled to cancel or terminate the Contract because of a delay. Broshuis is only in default after it has been served with a written notice of default by registered post for Products not delivered and has been given a period to still comply, within seven days of the date on which the notice of default is received.

5.2 The Products are for the risk of the Customer or its representative from the time of delivery. Broshuis retains legal ownership of the Products until Broshuis has received all the amounts owed to Broshuis by the Customer under this Contract or any other contract. Until full payment has been received, the Customer must therefore (1) keep the Products as  Broshuis Broshuis' custodian, (2) store the Products (without costs for Broshuis) separately from all other Products of Broshuis or any other third party in such a manner than they are immediately recognisable as the property of  Broshuis , (3) refrain from destroying, altering or rendering illegible any marks of recognition or packaging on or related to the Products and (4) keep the Products in a satisfactory condition and, to the reasonable satisfaction of  Broshuis keep them insured on behalf of Broshuis against all risks, for the full price. The Customer shall provide the insurance policy at Dell's request. The Customer grants Broshuis and its representatives and employees the irrevocable and unrestricted right to enter premises where the Products are or may be stored at any time, without prior notification, in order to inspect or take back the Products, in the event the Customer is obliged to return these to Broshuis. Broshuis reserves the right to demand full payment of the price, even if legal ownership of the Products was not transferred to the Customer.

5.3 The Customer must inspect the Products for any missing, incorrect or damaged Products or packaging and inform Broshuis , within seven days of their delivery, if a reasonable inspection and testing of the Products reveals such problems. If a defect or fault does not manifest itself within seven days of the date of delivery, the Customer must inform Broshuis in writing within a reasonable period after discovering possible faults or other flaws in the Products. If the Customer does not comply with the notification requirements in this paragraph the right to complain lapses, Broshuis cannot be held liable for such a defect or such flaw and the Customer must pay for the Products as though they had been delivered in accordance with the Contract. Broshuis has the right to repair or replace returned or refused Products.

5.4 If, for whatever reason, the Customer does not accept delivery of a Product that is ready for delivery or Broshuis is not able to deliver the Products on time because the Customer has not provided the necessary instructions, documents, licences or permissions, the Products will be deemed to have been accepted, whereby the risk (including for loss or damage resulting from negligence on the part of Broshuis) transfers to the Customer, and Broshuis may:

     5.4.1 store the Products until the actual delivery and the Customer can be held liable for all associated expenses and/or costs                (including but not limited to storage and insurance); or

     5.4.2 sell the Products at the immediately available best price and pass on a possible decreased value compared to the Price of the      Products (after deducting all the reasonable storage and selling costs) to the Customer.

 

6. Guarantee

 

6.1 Notwithstanding the provisions of Article 6.3, Broshuis guarantees that for a period of 12 months after the invoice date (the "Guarantee Period") Products Of The Brand Broshuis (1) shall comply with the Product Specification, (2) shall be free from material faults and that (3) spare parts Of The Brand Broshuis shall be free from faults for 6 months after the delivery date or the rest of the Guarantee Period, if this is longer. The performance of one of the options stated below in Article 6.3 provides for full and final discharge of Broshuis’ liability for the guarantees provided in the present Article 6.1.

6.2 The parties exclude the provisions of Section 2, Book 7, of the Dutch Civil Code [Burgerlijk Wetboek].

6.3 In execution of the guarantee referred to in 6.1, Broshuis shall repair or replace Products Of The Brand Broshuis that do not comply with the guarantees referred to in Article 6.1, provided Broshuis is informed thereof within seven days after the date on which the Customer discovers or is deemed to have discovered the fault, but in any case within the Guarantee Period. If Broshuis decides to replace Products or parts Of The Brand Broshuis in accordance with the guarantees referred to in Article 6.1, Broshuis shall deliver the replacement Products or parts at the address where the faulty Products Of The Brand Broshuis were delivered at its own expense and legal ownership of the faulty Products or parts that have been replaced transfers to Broshuis (if this were transferred to the Customer). The Customer must do everything reasonably possible to deliver the faulty Products to be replaced to Broshuis and Broshuis has the right to charge the Customer a fee if such faulty Products or are not returned when requested.

6.4 Broshuis is not liable under the guarantees provided in this Article 6:

     6.4.1 for a defect resulting from normal wear, wilful damage, negligence, abnormal working conditions, non-compliance on the part of Broshuis with oral or written instructions, incorrect use or changes to, modifications to or repairs of the Products without Broshuis’ approval;

     6.4.2 if the total Price for the Products is not paid on the due date;

     6.4.3 for Products, parts, materials or equipment not manufactured or produced by Broshuis , in which context the Buyer may only make a claim under the guarantee as this has been provided by the manufacturer or supplier to Broshuis and to the extent that this guarantee is      
     transferable to the Customer;

     6.4.4 for Products manufactured by Broshuis under the Contract that comply with the designs, specifications and recommendations provided by the Customer to Broshuis;

     6.4.5 for any type of fault, damage or wear that Broshuis has specifically excluded in writing; and/or

     6.4.6 for any further use of the Products and/or Software by the Customer following notification in accordance with Article 6.3.

6.5 Broshuis does not guarantee that the Products shall function (1) using a specific configuration not  provided by Broshuis or (2) shall produce a specific result, even if the configuration or the result has been discussed with Broshuis.

 

7. Liability

 

7.1 Neither party limits or excludes liability towards the other party by reason of any liability that cannot be excluded by law.

7.2 Neither part is liable for:

    7.2.1 special, indirect or consequential damage;

    7.2.2 loss of profits, income or turnover;

    7.2.3 damage to goodwill or reputation;

7.3 If despite the above-mentioned exclusions Broshuis can be held liable for any damage on the part of the Customer, the full liability of Broshuis towards the Customer arising, for whatever reason, from or in connection with the Contract, be it due to negligence, a failure of otherwise, is limited to a maximum of 125% of the Price owed by the Customer for the Products under the Contract.

 

8. Confidentiality

 

Both parties must treat any Confidential Information received from the other party as it would generally treat its own confidential information, exercising in any case a reasonable amount of care.

 

 

9. Termination

 

9.1 Either party may (without prejudice to other rights or legal remedies towards the other party) terminate the Contract with immediate effect and without prior legal intervention by giving notice in writing if the other party:

      9.1.1 materially fails under the Contract and does not remedy this within 30 days of notice in writing; or

      9.1.2 discontinues or threatens to discontinue the business activities or is declared bankrupt.

9.2 Broshuis may terminate the Contract, with immediate effect and without prior legal intervention, by giving notice in writing if the Customer:

      9.2.1 remains in default for the payment of uncontested amounts that are due and payable to Broshuis under the Contract;

      9.2.2 The Customer breaks the laws restricting export or Broshuis has reasonable suspicion thereof;

9.3 In the event of termination of the Contract, all of the parties' rights and obligations regarding to the Products that are relevant for the specific Order Documents under the Contract lapse by operation of law, with the exception of rights of action that arose before the termination.

 

10. Force Majeure

 

Neither party is liable towards the other party for a failure in the performance of one or more of its obligations (excluding payment obligations) under the Contract for a period in which such performance is delayed due to circumstances beyond that party's reasonable control, including but not limited to fire, floods, war, an embargo, strikes, riots or measures by a government body ("Force Majeure"), provided that the delayed party informs the other party of the situation of Force Majeure immediately in writing. The period for performance by the delayed party will be suspended for the duration of the situation of Force Majeure, subject to the condition that if the situation of Force majeure lasts longer than 30 days, the other party has the right to terminate the Contract in full or in part with immediate effect and without prior legal intervention by giving the delayed party notice in writing.

 

11. Compliance with export legislation

 

11.1 The Customer recognises that the Products that are delivered under the Contract are delivered subject to (1) the customs legislation and laws restricting export of the United States and Europe, (2) may be produced in countries outside the United States or Europe or outside the borders of the country in which the Customer or the Customer's Products are located and (3) might be subject to other customs and export laws and regulations of the country in which the Products are supplied or received. Based on these laws and regulations, Products that sold under this Contract may not be sold, rented out or otherwise transferred to end users or countries to which restrictions apply. Nor may the Products be sold, rented out or otherwise transferred to or used by an end user that engages in activities relating to weapons of mass destruction, including but not limited to activities related to the design, development, production or use of nuclear materials, nuclear power stations, rockets or support for rocket projects or chemical or biological weapons. The Customer undertakes to comply with such laws and regulations.

11.2 Broshuis’ acceptance of an order for Products is subject to the grant of any applicable export licences by the government of the United States or other applicable national governments. Broshuis cannot be held liable for any delays or failings in the delivery of the Products resulting from continued failure on the part of the Customer to obtain such licences or provide such certificates.

11.3 The Customer undertakes to compensate Broshuis for damage, to indemnify Broshuis and to oppose claims or legal procedures on behalf of Broshuis for breaches or alleged breaches of the relevant export laws by the Customer.

 

 

12. Data Protection

 

12.1 To the extent that the Customer and Broshuis are responsible for processing personal data that are processed under or in connection with the Contract, they must both comply with the regulations insofar as this is required under the legislation of each party. The Customer guarantees Broshuis that he has obtained all the necessary authority to lawfully process personal data before providing the personal data to Broshuis.

12.2 If Broshuis processes personal data for the Customer, Broshuis must ensure that sufficient protective measures are in force to protect such personal data. Broshuis shall make a reasonable effort to assist the Customer in complying with its obligations, as party responsible for processing, and in responding to requests for access the Customer's files from people to which the personal data relates, in which context the Customer must pay Broshuis a reasonable professional fee for the time that its staff spends on this task.

12.3 The Customer gives Broshuis the authority to collect, use, save or transfer the personal data provided by Customer to Broshuis in order for Broshuis to be able to comply with its obligations under the law and the Contract and possible other purposes to be described in further detail in accordance with the Contract.

12.4 Broshuis may in the context of normal business activities worldwide transfer personal data on its business systems to other entities, representatives or Enterprises within the same group or to other relevant business partners that may have access to personal data from time to time. In the event of such a transfer, Broshuis must ensure that there is sufficient protection to protect the personal data transferred under or in connection with this Contract.

12.5 Broshuis cannot be held liable for any claims that the Customer or the party in question brings because of acts or omissions by Broshuis, to the extent that such acts or omissions result from compliance by Broshuis with the law or instructions from the Customer.

 

13. General

 

13.1 Notices under the Contract must be in writing and directed to the officer of the legal division at the address stated on Broshuis' invoice.

13.2 Neither party is permitted to transfer the Contract or any obligations under the Contract without the prior written permission of the other party, subject to the condition that (1) Broshuis does not require permission for a transfer to affiliated companies and (2) Broshuis may outsource its obligations under the Contract, but remains liable and responsible towards the Customer for such obligations.

13.3 Changes to the Contract or an order placed on the basis thereof are only valid and binding if agreed in writing. Should any provision of the Contract be declared void or unenforceable, such provision will be removed or amended to the extent necessary to comply with the law and the rest of the Contract will remain in full force and effect.

13.4 A waiver or failure in the performance by one of the parties, or delay in the exercise or a non-exercise of a right under this Contract does not constitute a waiver of a subsequent failure in the performance of the Contract.

13.5 The Contract and any non-contractual obligations shall be governed by Dutch law and fall within the competence of the Dutch court.

13.6 The parties agree that the United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Sales Convention) does not apply to this Contract.

13.7 An English version of these Conditions can be provided to the Customer for information purposes. In the event of any conflict between the Dutch and the English version, the Dutch version prevails.

 

 

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