1.1 Customer: the natural or legal person as well as partnerships without legal personality, with whom Henk Smit wishes to conclude or has concluded an agreement.
1.2 Order: any oral or written order or request from the Customer for the delivery of Goods.
1.3 Goods: all goods to be delivered by Henk Smit to the Customer, including drinks, glassware, casks, crates, bottles, advertising and promotional materials.
1.4 Henk Smit: de user of these general terms and conditions.
1.5 Delivery: the delivery of Goods to the Customer’s warehouse.
1.6 Delivery agreement: framework agreement applicable between Henk Smit and the Customer, consisting of an overview of the (price)agreements made between Henk Smit and the Customer, as provided by Henk Smit or the Customer and approved by the Customer.
1.7 Agreement: the agreement between Henk Smit and the Customer for the purchase and Delivery of Goods.
1.8 Return packaging: the multi-use casks, tanks, bottles, crates, boxes, displays, cylinders, pallets, (roll)containers, and other devices.
1.9 Conditions: these terms and conditions.
2. Applicability and changes Conditions
2.1 These Conditions apply to the Delivery agreement, every offer and/or quotation from Henk Smit and to every Agreement between Henk Smit and the Customer.
2.2 Applicability of the Conditions used by the customer is expressly rejected.
2.3 These Conditions can only be deviated from in writing.
2.4 If and insofar as any provision in these Conditions cannot be invoked, then that provision has as much corresponding meaning as possible in terms of content and scope.
3. Offer, order and conclusion of Agreement
3.1 If the Customer places an Order, the Agreement will be concluded because Henk Smit accepts it in writing or implements it.
3.2 The Customer accepts these Conditions by placing the Order, insofar as he has not done so before.
3.3 The content of leaflets, brochures, advertisements and any other (advertising)material does not bind Henk Smit and only counts as an invitation to make an offer.
3.4 Offers from Henk Smit are without obligation. An offer can be revoked by Henk Smit within two working days after receipt of an Order from the Customer, in which case no agreement will be concluded.
4. Prices and rates
4.1 Delivery of the Goods takes place at the prices and rates stated on the Henk Smit website at the time of the conclusion of the Agreement. Prices that have been agreed or made known in other ways by Henk Smit or suppliers do not bind Henk Smit, unless Henk Smit and Costumer have agreed to this in writing.
4.2 Henk Smit is entitled to pass on changes in purchase prices, wages and/or exchange rate changes related to the agreed performance.
4.3 All prices and rates used by Henk Smit are exclusive of VAT, excluding transport and administration costs and excluding deposit, unless explicitly stated otherwise.
5. Billing and payment
5.1 Invoices must be paid within seven days of the invoice date, unless otherwise agreed in writing. In case of late payment, the Customer owes the statutory interest on the invoice amount.
5.2 In the event of late payment, all payment obligations of the Customer, regardless of whether Henk Smit has already billed in this regard, will immediately become due and payable. If the Customer subsequently fails to meet his payment obligations – after he has been given notice of default – Henk Smit is entitled to dissolve the Agreement(s), as well as the Delivery agreement, without prejudice to the right to compensation.
5.3 Henk Smit has the right to require the Customer to pay in whole or in part due before or at the Delivery or in its opinion sufficient security for payment of the price. If the advance payment or the security is not received within the period set by Henk Smit, all payment obligations of the Customer, regardless of whether Henk Smit has already billed in this respect, will immediately become due and payable. If the Customer subsequently fails to meet his payment obligations – after he has been given notice of default – Henk Smit is entitled to dissolve the Agreement(s), as well as the Delivery agreement, without prejudice to the right to compensation.
5.4 Complaints about an invoice must be submitted in writing to Henk Smit within seven calendar days after receipt of the invoice. A complaint does not release the Customer rom his payment obligation.
5.5 All costs that Henk Smit makes in or out of court in connection with any failure of the Customer to fulfil his obligations will be borne by the Customer.
5.6 Without the express written permission of Henk Smit, the Customer is not permitted to set off any payment obligation toward Henk Smit for whatever reason, against a claim by the Customer against Henk Smit.
6. Delivery
6.1 Unless expressly agreed otherwise, Delivery of the Goods to the Customer’s warehouse takes place.
6.2 The risk for the Goods will permanently pass to the Customer after Delivery. If Delivery of the Goods has been agreed in another place in advance, the risk will permanently pass to the Customer upon delivery at that place.
6.3 If Delivery by Henk Smit cannot take place at the agreed time due to circumstances that cannot be attributed to him, the risk for the Goods will then permanently pass to the Customer.
6.4 By exceeding the agreed Delivery term, Henk Smit will not be default. This only applies if Henk Smit does not deliver reasons due to him after the Customer has set a further reasonable period for this.
6.5 Exceeding the Delivery term does not entitle the Customer to suspend his payment obligations with regard to the Goods.
6.6 A purchase obligation rests on the Customer. If the Customer does not purchase the Goods intended for him and offered to him (in time) due to circumstances not attributable to Henk Smit, Henk Smit is entitled to sell these Goods, if Henk Smit has notified the Customer of the intention to do so and the Customer has not taken the Goods in question within seven calendar days. In the case of Goods with a limited shelf life, Henk Smit may maintain a period shorter than seven calendar days. Henk Smit may settle the proceeds after deduction of all costs against the agreed purchase price, which, insofar as the customer is not paid by the settlement, remains due. This does not affect any other rights of Henk Smit towards the Customer.
7. Transfer of ownership
7.1 Henk Smit reserves the ownership of all Goods delivered to the Customer until the Customer has fully fulfilled all his obligations to Henk Smit under any Agreement.
7.2 The Customer is obliged to keep the Goods, the property of which rests with Henk Smit, clearly separated from other Goods and store them in a mechanically correct manner.
7.3 The Customer may not dispose of Goods, the property of which still rests with Henk Smit, other than that which fits in the normal course of his profession or business; this does not include the use of those Goods for the provision of security.
7.4 If the Customer does not fully comply with any obligation under or in connection with any Agreement on the supply of Goods concluded with Henk Smit, Henk Smit is entitled to take back the Goods still belonging to him on his own, without being obliged to pay any compensation. The Customer is obliged to cooperate in this respect on pain of a immediately due and payable fine of € 500 per day. All costs of taking back are for the account of the Customer.
7.5 The Customer must immediately inform Henk Smit of (an attempt to) seize the Goods by third products.
8. Return packaging
8.1 Deposit is levied for the Return packaging. The deposit and costs associated with collecting packaging if applicable are passed on to the Customer.
8.2 Return packaging will be taken with a next Delivery by Henk Smit.
9. Complaints
9.1 The Customer is obliged to check the Order upon Delivery. If Goods are missing, the Customer must immediately notify Henk Smit, failing which the Customer will lose the right to invoke the absence of Goods.
9.2 The Customer must examine the Goods for validity. The Customer can no longer appeal to Henk Smit for defects in Goods, discovered by the Customer after Delivery or that the Customer should reasonably have discovered after a careful inspection, if he has not made his complaint in this regard known to Henk Smit in writing and duly substantiated within ten calendar days after Delivery.
9.3 Defects in Goods, which the Customer was unable to reasonably detect with or without delay after the Delivery with a careful examination, the Customer can appeal to Henk Smit for a period of no more than six months after Delivery, provided that the Customer makes his complaint in this regard known to Henk Smit in writing and with due reasons within ten calendar days after discovery and demonstrates that the shortage and defects existed before the relevant Goods were delivered.
9.4 Goods only count as improper if the Customer demonstrates that they do not meet the legal quality requirements that apply to those Goods at the time of the conclusion of the Agreement or if its inadequacy is unmistakable in the nature of the Goods.
9.5 In case of complaints that have been reported in a timely and correct manner in accordance with this article and that are fore the account of Henk Smit, Henk Smit will remove the defects or credit the Customer on the basis of the agreed purchase price.
9.6 The absence of Goods or defects in Goods does not entitle the Customer to suspend his payment obligations with regard to the Goods.
10. Returns
10.1 The Customer is entitled to return Goods – insofar as unopened and in the original packaging – to Henk Smit within 5 days after Delivery.
10.2 Henk Smit credits the agreed purchase price In favor of the Customer from properly returned Goods, on the understanding that Henk Smit will deduct an amount equal to 10% of the agreed purchase price by way of handling fee.
11. Force majeure
11.1 Henk Smit is not obliged to fulfil any obligation under the Agreement if it is prevented from doing so as a result of force majeure. Force majeure in any case means: war, revolution, terrorist actions, natural disasters, disturbances, fire, excessive demand increase, weather conditions, flooding, transport barriers, strike, government measures including import and export measures, disturbances in the supply of raw materials, packaging materials, energy or business supplies or as a result of defects in or damage to machines.
11.2 Force majeure means the fact that the Goods ordered by the Customer (temporarily) are not available from the supplier of Henk Smit.
11.3 Insofar as Henk Smit is temporarily unable to fulfil the agreement (properly) due to force majeure, the mutual obligations of the Agreement are suspended. If the force majeure situation continues to exist for thirty (30)consecutive calendar days, each of the parties can dissolve the Agreement for the part affected by the force majeure.
12. Damage and liability
12.1 Henk Smit is not liable for damage resulting from or related to a defect in or to Goods supplied by him, except in the case of intent or deliberate recklessness. In the latter case, Henk Smit is not liable for the damage caused by this, other than up to an amount of twenty (20) percent of the net price (gross price minus VAT and others government taxes) of the goods in respect of which the defect exists, up to a maximum of € 5,000 or – if Henk Smit is insured for his liability – up to the amount for which Henk Smit enjoys insurance coverage.
12.2 Henk Smit is, except in the case of intent or deliberate recklessness, not liable for damage to property of the Customer that arises from or is related to the Delivery of the goods to the Customer by Henk Smit or third parties engaged by Henk Smit.
12.3 The Customer is liable for third parties suffered by employees or by Henk Smit (injury)damage, insofar as Delivery does not take place in the manner prescribed in these Conditions.
12.4 The Customer must notify Henk Smit in writing, with the most accurate possible amount, on pain of forfeiture of his right to compensation within fifteen (15) calendar days after he has discovered the occurrence of damage statement of the cause, nature and extent of the damage.
12.5 Except insofar as damage has been reported in accordance with the provisions of the previous provisions, the right to compensation for damage as a whole lapses six (6) months after the time when the Goods were or should have been delivered.
13. Termination of the Agreement
13.1 Henk Smit can terminate the Delivery agreement without owning any compensation or payment.
13.2 Henk Smit can owe any other Agreement without notice of default and without any compensation or payment, dissolve in whole or in part with immediate effect if the Customer is granted a moratorium or is filed for bankruptcy with regard to the Customer.
13.3 In the event of termination of the Agreement, all payments due by the Customer to Henk Smit are immediately and fully due and payable.
14. Applicable law and competent court
14.1 All legal relationships between Henk Smit and the Customer are exclusively governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) remains inapplicable.
14.2 Disputes between Henk Smit and the Customer are exclusively settled by the competent court in Amsterdam. Henk Smit is, however, authorized to refer the dispute to another Dutch or foreign court competent by law or treaty.