General terms and conditions
The Essentials B.V. Terms and conditions 1 January 2020
General terms and conditions issued by The Essentials B.V. Published by The Essentials B.V. Rietveldenweg 40, 5222 AR, 's-Hertogenbosch.
Article 1. Applicability
1.1. These terms and conditions apply to all offers, orders, quotations, however named, made by The Essentials B.V. or one of the trade names referred to below, to all agreements entered into by The Essentials B.V. and to all agreements resulting therefrom, all insofar as The Essentials B.V. is a supplier or purchaser/contractor.
1.2. Where these general terms and conditions refer to "purchaser", this shall mean any natural or legal person who has a contractual relationship with us pursuant to a purchase or other type of agreement concluded with us, as well as any natural or legal person who wishes to enter into a purchase or other type of agreement with us. In particular, "buyer" shall also mean the person on whose instructions and for whose account items are delivered, repaired and/or maintained.
1.3. The provisions of these general terms and conditions may only and exclusively be deviated from if and insofar as expressly agreed in writing.
1.4. If the buyer also refers to its general terms and conditions, the buyer's terms and conditions shall not apply. This shall only be different if and insofar as the applicability of the buyer's terms and conditions has been expressly accepted by us in writing and insofar as the buyer's terms and conditions do not conflict with the provisions of our general terms and conditions. Should the buyer's terms and conditions thus conflict with our general terms and conditions, only the provisions of our terms and conditions shall apply. Any stipulation to the contrary in the buyer's terms and conditions shall not affect the foregoing.
1.5. Where these general terms and conditions refer to "(delivery of) goods", this shall also include the provision of services and consultancy of any kind relating to goods.
Article 2: Offers
2.1. All our offers are to be regarded as invitations to the potential buyer to make an offer. They shall therefore not bind us in any way, unless the offer itself expressly and unambiguously stipulates the contrary in writing.
The order given to us is considered an offer, which is deemed to be accepted by us only after written confirmation on our part (the so-called order confirmation).
If no deadline is indicated, offers made by us are valid for 6 weeks from the date of the offer. A written confirmation via e-mail is binding.
2.2. The designs, drawings, descriptions, illustrations and the like, as well as any annexes and documents relating to our offers form part of offers made by us. All this shall remain our property, must be returned to us at our request and may not be copied or given to third parties without our explicit written consent, under penalty of an immediately payable fine of € 25,000 (in words: twenty-five thousand euros) per violation. We also reserve all existing intellectual and industrial property rights.
For orders to manufacture goods on the basis of data, drawings, etc. supplied to us by the buyer, the buyer shall indemnify us completely for any infringements of third-party rights.
2.3. The prices stated in the offer are expressed in euros, exclusive of turnover tax and other government levies or taxes. Prices are further exclusive of travel, accommodation, packaging, storage and transport costs as well as loading, unloading and cooperation with customs formalities.
2.4 .The contents of folders, printed matter, price lists, etc. shall not be binding on us unless expressly referred to in writing in the agreement.
Article 3: Confidentiality
3.1. All information provided by or on behalf of The Essentials B.V. or one of its trade names (such as offers, designs, images, drawings and know-how) of any nature and in any form whatsoever, are confidential and shall not be used by client/ purchaser for any purpose other than for the performance of the agreement.
3.2. The information mentioned in paragraph 1 of this article shall not be disclosed or multiplied by the customer.
3.3. If the client violates any of the obligations mentioned in paragraphs 1 and 2 of this article, he shall owe an immediately payable fine of €25,000 for each violation. This penalty may be claimed in addition to damages under the law.
3.4. The Client must return or destroy the information referred to in paragraph 1 of this article upon first request, within a period set by the Contractor, at the Contractor's discretion. If this provision is violated, the Client will owe the Supplier an immediately payable penalty of €1,000 per day. This penalty may be claimed in addition to damages under the law.
Article 4: Advice and information provided
4.1. The Principal/Purchaser cannot derive any rights from advice and information provided by The Essentials B.V. or any of its trade names that do not directly relate to the order.
4.2. If the client/ customer provides the contractor (The Essentials B.V. or one of its trade names). information, the contractor may assume the accuracy and completeness thereof in the performance of the agreement.
4.3. The Principal shall indemnify the Contractor against any claim by third parties relating to the use of advice, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the Principal. The Client shall compensate all damage to be suffered by the Contractor, including all costs incurred to defend against such claims. As also mentioned in Article 2 paragraph 2.
Article 4 Realisation of the Agreement
4.1 Agreements are concluded electronically (by internet; by e-mail) when The Essentials B.V. or one of its customers accepts (confirms) an order given electronically (by e-mail) or asks for and receives an order confirmation from the purchaser/client.
4.2 Incidentally, agreements come into effect only when we accept an order given to us in writing. An agreement is deemed to have been concluded at the time we send our order confirmation. The date of acceptance/confirmation of the order is the date on which we send the order confirmation.
4.3 Any additional agreements and/or undertakings made and/or given by our employees or made and/or given on our behalf by other persons acting as representative(s) shall only bind us if such agreements and/or undertakings have been confirmed in writing by our directors authorised to represent us.
4.5 All quotations, invoices or similar expressions or otherwise named by The Essentials B.V. or any of its trade names are subject to these general terms and conditions as if they were included verbatim therein.
Article 5: Delivery period / performance period
5.1. A stated delivery time or execution period is indicative.
5.2. The delivery time or work period will not commence until agreement has been reached on all commercial and technical details, all information, including final and approved drawings and the like, are in the Supplier's possession and the other conditions for performance of the engagement have been met.
5.3. In the event of: a. circumstances that were not known to the Supplier when the delivery deadline or work period was issued, the delivery deadline or work period will be extended by the time that the Supplier, with due observance of the Supplier's planning schedule, requires to perform the engagement under those circumstances; b. additional work, the delivery deadline or work period will be extended by the time that the Supplier needs, with due observance of the Supplier's work schedule, to supply (or arrange for the supply of) the materials and parts necessary for that purpose and to carry out the additional work; c. suspension of obligations by the Supplier, the delivery deadline or work period will be extended by the time that the Supplier needs, with due observance of the Supplier's work schedule, to carry out the engagement after the reason for the suspension lapses. Barring evidence to the contrary from the Principal, the duration of the extension of the delivery period or work period will be presumed to be necessary and to be the result of a situation as referred to above under a to c.
5.4. The customer/customer is obliged to pay all costs incurred or damage suffered by the contractor as a result of a delay in the delivery time or execution period, as referred to in paragraph 3 of this article.
5.5. Exceeding the delivery time or work period will under no circumstances entitle the Client to damages or dissolution. The Client indemnifies the Supplier against any claims from third parties as a result of the delivery time or work period being exceeded.
Article 6: Delivery and transfer of risk
6.1. The Principal and the Contractor may agree that the Contractor will arrange transport. The risks of, inter alia, storage, loading, transport and unloading will in that case also be borne by the Client. The customer may insure himself against these risks.
Article 7: Price changes
Contractor (The Essentials B.V. or one of its trade names) may pass on to client/customer any increase in cost-determining factors that occurred after the conclusion of the agreement. Client/customer is obliged to pay the price increase at the first request of the contractor.
Article 8: Force majeure
8.1. A failure to perform its obligations cannot be attributed to The Essentials B.V. or any of its trade names if such failure is the result of force majeure.
8.2. Force majeure includes the circumstance that third parties engaged by The Essentials B.V. or one of its trade names, such as suppliers, subcontractors and transporters, or other parties on which the principal depends, fail to comply with their obligations or fail to do so in a timely manner, weather conditions, natural disasters, diseases, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, road blocks, strikes or work stoppages and import or trade restrictions.
8.3. The Essentials B.V. or any of its trade names is entitled to suspend the performance of its obligations if it is temporarily prevented from performing its obligations to client/ purchaser due to force majeure. Once the force majeure situation has lapsed, The Essentials B.V. or one of its trade names shall fulfil its obligations as soon as its schedule permits.
8.4. If a situation of force majeure occurs and performance is or becomes permanently impossible or the temporary force majeure situation has lasted for more than six months, The Essentials B.V. or one of its trade names is authorised to dissolve the agreement in whole or in part with immediate effect. Client/ purchaser shall in such cases be entitled to dissolve the agreement with immediate effect, but only for that part of the obligations that have not yet been fulfilled by the contractor.
8.5. The parties are not entitled to compensation for any damage suffered or to be suffered as a result of the force majeure, suspension or dissolution within the meaning of this article.
Article 9: Liability
9.1. In the event of an attributable breach o The Essentials B.V. or one of its trade names shall still be obliged to perform its contractual obligations, with due observance of article 14.
9.2. The obligation of The Essentials B.V. or one of its trade names to compensate damages on any basis whatsoever is limited to those damages for which The Essentials B.V. or one of its trade names is insured under an insurance policy taken out by or on behalf of it. However, the scope of this obligation shall never exceed the amount paid out under this insurance in the relevant case.
9.3. If for any reason The Essentials B.V. or one of its trade names cannot invoke paragraph 2 of this article, the obligation to compensate damages shall be limited to a maximum of 15% of the total contract sum (excluding VAT). If the agreement consists of parts or partial deliveries, this obligation shall be limited to a maximum of 15% (excluding VAT) of the order price of that part or partial delivery. In the event of continuing performance contracts, the obligation to pay damages shall be limited to a maximum of 15% (exclusive of VAT) of the order price due over the last twelve months preceding the event causing the damage.
9.4. The following are not eligible for compensation: a. consequential damage. Consequential damage is understood to include recall costs, stagnation damage, loss of production, loss of profit, fines, transport costs and travel and accommodation costs;
9.5. Client/ purchaser indemnifies The Essentials B.V. or one of its trade names against all third-party claims for product liability as a result of a defect in a product delivered by The Essentials B.V. or one of its trade names to a third party and of which the products or materials delivered by The Essentials B.V. or one of its trade names form part. Client shall compensate all damages suffered by The Essentials B.V. or one of its trade names in this respect including the (full) costs of defence.
Article 10: Warranty and other claims
10.1. Unless otherwise agreed in writing, The Essentials B.V. or one of its trade names warrants the proper performance of the agreed performance, or product(s) already delivered, for a period of 14 days after delivery.
10.2. If the parties have agreed different warranty terms, the provisions of this article shall apply in full, unless this is in conflict with those different warranty terms.
10.3. If the agreed performance has not been performed properly or delivered products are defective, The Essentials B.V. or one of its trade names shall within a reasonable period of time choose whether it will still perform it properly, deliver new products or credit client/customer for a proportional part of the order price.
10.4. If The Essentials B.V. or one of its trade names chooses to still execute the performance properly, The Essentials B.V. or one of its trade names shall determine the manner and time of execution. Client/ purchaser shall in all cases give The Essentials B.V. or one of its trade names the opportunity to do so.
10.5. The following costs shall be borne by the client/ purchaser: a. all transport or shipping costs; b. costs of disassembly and assembly; c. travel and accommodation costs and travel time.
10.6. The Essentials B.V. or one of its trade names is not obliged to carry out the warranty until client/purchaser has fulfilled all its obligations.
10.7. a. Warranty is excluded for defects that are the result of:
- normal wear and tear; - injudicious use; - maintenance not carried out or carried out incorrectly; - installation, assembly, modification or repair by the customer, the purchaser or by third parties; - defects to or unsuitability of items originating from, or prescribed by the customer; - defects to or unsuitability of materials or tools used by the customer.
- No guarantee is given on - delivered items that were not new at the time of delivery; - the inspection and repair of items belonging to client; - parts for which a manufacturer's warranty has been granted.
10.8. The provisions of paragraphs 3 to 7 of this article shall apply mutatis mutandis to any claims by the client/customer based on non-performance, non-conformity or any other basis whatsoever.
Article 11: Obligation to complain
11.1. Client/ Purchaser can no longer invoke a defect in the performance if he has not complained in writing to The Essentials B.V. or one of its trade names within fourteen days after he discovered or reasonably should have discovered the defect.
11.2. Client/ purchaser must have submitted complaints about the invoice in writing to The Essentials B.V. or one of its trade names within the payment term, under penalty of forfeiture of all rights. If the payment term is longer than thirty days, client/customer must have complained in writing no later than thirty days after the invoice date.
Article 12: Uncollected goods
12.1. Client/customer shall be obliged to actually take delivery of the item or items that are the subject of the agreement at the agreed place after the delivery time or execution period has expired.
12.2. The customer/customer must render every assistance free of charge to enable the Supplier to deliver.
12.3. Uncollected goods will be stored at the expense and risk of the customer/customer.
12.4. In case of violation of the provisions of paragraph 1 or 2 of this article, client/customer shall, after having given notice of default to The Essentials B.V. or one of its trade names, owe The Essentials B.V. or one of its trade names a penalty of € 250 per day for each violation with a maximum of € 25,000. This penalty may be claimed in addition to damages under the law.
Article 13: Payment
13.1. Payment shall be made into an account to be designated by The Essentials B.V. or one of its trade names.
13.2. Unless otherwise agreed, payment shall be made within 14 days of the invoice date.
13.3. If client/customer fails to comply with its payment obligation, instead of payment of the agreed sum of money, it is obliged to comply with a request by The Essentials B.V. or one of its trade names for remittance.
13.4. Regardless of whether The Essentials B.V. or one of its trade names has fully performed the agreed performance, everything that client/customer owes or will owe under the agreement is immediately due and payable if: a. a payment term has been exceeded; b. client/customer fails to comply with its obligations under article 16; c. customer/customer's bankruptcy or suspension of payments has been applied for; d. goods or claims of customer/customer are attached; e. customer/customer (company) is dissolved or liquidated; f. customer/customer (natural person) applies for admission to statutory debt rescheduling, is placed under guardianship or dies.
13.5. In case of delay in payment of a sum of money, client/customer shall owe interest on such sum of money to The Essentials B.V. or one of its trade names with effect from the day following the day agreed as the final day for payment up to and including the day on which client/customer has paid the sum of money. If the parties have not agreed on a final day of payment, interest shall be due from 30 days after due date. The interest rate shall be 12% per annum, but shall be equal to the statutory interest rate if higher. In calculating interest, part of a month is considered a full month. At the end of each year, the amount on which interest is calculated shall be increased by the interest due for that year.
13.6. The Essentials B.V. or one of its trade names is authorised to set off its debts to client/ purchaser against claims of companies affiliated with The Essentials B.V. or one of its trade names on client/ purchaser. Affiliated companies are defined as: all companies belonging to the same group, within the meaning of Article 2:24b of the Dutch Civil Code and a participation within the meaning of Article 2:24c of the Dutch Civil Code.
13.7. If payment has not been made on time, client/ purchaser shall owe The Essentials B.V. or one of its trade names all extrajudicial costs with a minimum of € 75. These costs are calculated on the basis of the following table (principal sum incl. interest):
| over the first €3,000.00 | 15% |
| over the amount up to € 6.000,- | 10% |
| over the amount up to € 15.000,- | 8% |
| over the amount up to € 60,000,- | 5% |
| on the amount exceeding € 60,000,- | 3% |
The actual extrajudicial costs incurred shall be due if they are higher than follows from the above calculation.
13.8. If The Essentials B.V. or one of its trade names is wholly or largely ruled in favour in legal proceedings, all costs incurred in connection with such proceedings shall be borne by client/ purchaser.
Article 14: Securities
14.1. Irrespective of the agreed payment conditions, client/customer is obliged to provide adequate security for payment at the first request of The Essentials B.V. or one of its trade names, at its discretion. If client/ purchaser fails to do so within the stipulated period, he shall immediately be in default. In such event The Essentials B.V. or one of its trade names shall be entitled to dissolve the agreement and recover its loss from client/ customer.
14.2. The Essentials B.V. or one of its trade names remains the owner of delivered goods as long as client/customer: a. has not fulfilled its obligations under any agreement with The Essentials B.V. or one of its trade names; b. has not paid claims resulting from the non-fulfilment of the aforementioned agreements, such as damages, penalties, interest and costs.
14.3. As long as goods delivered are subject to retention of title, client/customer may not encumber or alienate them outside the scope of his normal business operations. This clause shall have effect under property law.
14.4. After The Essentials B.V. or one of its trade names has invoked its retention of title, it may recover the delivered goods. Client/customer shall provide all cooperation to this end.
14.5. If client/customer has fulfilled his obligations after the goods have been delivered to him by The Essentials B.V. or one of its trade names in accordance with the agreement, the retention of title in respect of these goods shall revive if client/customer fails to fulfil his obligations under an agreement concluded at a later date.
14.6. The Essentials B.V. or one of its trade names has a right of pledge and a right of retention on all goods it has or will have in its possession from client/customer for whatever reason and on all claims it has or may have on client/customer.
Article 15: Intellectual property rights
15.1. The Essentials B.V. or one of its trade names is deemed to be the creator, designer or inventor respectively of the works, products, models or inventions created within the framework of the agreement. The Essentials B.V. or one of its trade names therefore has the exclusive right to apply for a patent, trademark or design.
15.2. The Essentials B.V. or one of its trade names does not transfer any intellectual property rights to client/customer in the performance of the agreement.
15.3. The Essentials B.V. or one of its trade names is not liable for any damage suffered by client/ customer as a result of an infringement of intellectual property rights of third parties. Client/ purchaser indemnifies The Essentials B.V. or one of its trade names against any claim of third parties regarding an infringement of intellectual property rights.
Article 16: Transfer of rights or obligations
Client/Purchaser cannot transfer or pledge any rights or obligations under any article of these general terms and conditions or the underlying agreement(s), except with the prior written consent of The Essentials B.V. or one of its trade names. This clause has property law effect.
Article 17: Termination or cancellation of the agreement
17.1. Client/Purchaser is not entitled to terminate or cancel the agreement unless The Essentials B.V. or one of its trade names consents thereto. Upon consent of The Essentials B.V. or one of its trade names, client/ customer shall owe The Essentials B.V. or one of its trade names an immediately due and payable compensation in the amount of the agreed price, less the savings for The Essentials B.V. or one of its trade names resulting from the termination. The compensation shall be at least 20% of the agreed price.
17.2. If the price is made dependent on the actual costs to be incurred by The Essentials B.V. or one of its trade names (cost-plus basis), the compensation as referred to in the first paragraph of this article is estimated at the sum of the costs, labour hours and profit, which The Essentials B.V. or one of its trade names would be expected to have incurred over the entire order/sale.
Article 18: Applicable law and competent court
18.1. Dutch law shall apply.
18.2. The Vienna Sales Convention (C.I.S.G.) shall not apply, nor shall any other international regulation the exclusion of which is permitted.
18.3. The Dutch civil court having jurisdiction in the place of establishment of the contractor shall take cognisance of disputes. The contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.
Article 19: Reporting of complaints
19.1 The buyer is obliged to report complaints, production errors or other irregularities regarding the products imported by The Essentials B.V. via e-mail or telephone contact. This can be sent to info@the-essentials.eu or to klantenservice@swimessentials.nl. In addition, you can call 073-7113710.
19.2 The buyer must be extra careful with so-called Personal Protective Equipment, also known as PPE. Common PPE is: swimming straps, swimming rings for babies, life jackets and Puddle Jumpers. In addition, all items covered by European Parliament Regulation (EU) 2016/425. The buyer should report all complaints, production defects or other irregularities immediately to The Essentials B.V. at info@the-essentials.eu or klantenservice@swimessentials.nl or call 073-7113710.