General Terms And Conditions Merchandise Essentials BV
1. LANGUAGE. The client accepts that the official general terms and conditions have been drawn up in the Dutch language and that it understands them and consents with these general terms and conditions.
2. APPLICATION OF THE GENERAL TERMS AND CONDITIONS. Every order placed with our company is subject to the following general terms and conditions. By placing an order, the client endorses these general terms and conditions of sale and expressly waives the application of its own general terms and conditions (of sale), regardless of whether they have been published or made known. Unless the parties have agreed otherwise in writing, the provisions contained in this document form the integral agreement concluded between the parties, which also applies to order forms or other written documents.
3. OFFERS. Our offers serve to inform the client and are valid for 7 calendar days, insofar as Merchandise Essentials BV does not send a second offer that replaces the previous one. Offers are made with reservation of sale. In the event of an increase in wages, social security contributions, prices of raw materials and changes in exchange rates, our offers may be revised at any time, which may give rise to an adjustment of the prices. Offers made without Merchandise Essentials BV being aware of the item to be (repeatedly) produced can be adjusted if during the ordering or production phase it appears that the work to be carried out does not correspond to the specifications drawn up. Merchandise Essentials BV also reserves the right to make changes to the item to be (re) produced if it appears to be forced to do so as a result of production techniques. Merchandise Essentials BV strives to comply as much as possible with the content of the offer. Price quotations for the customization of goods are always purely indicative and insofar as no additional actions are required for the specified work. Additional actions before the customization can start will be charged additionally based on time and materials.
4. ACCEPTANCE. Orders are considered accepted if they are confirmed in writing by Merchandise Essentials BV.
5. PAYMENT. Unless otherwise agreed in writing, invoices are payable in cash, net and without discount. In the event of late payment, the other party is obliged, automatically and without notice of default, to pay an interest of 9% per annum as well as a fixed compensation of 10% of the invoice amount with a minimum of €75, without prejudice to Merchandise Essentials BV’s right to claim compensation for other damage and costs. All costs, both judicial and extrajudicial, incurred by Merchandise Essentials BV to collect the outstanding amounts from the client, shall be borne by the client. Merchandise Essentials BV reserves the right not to execute orders if payments relating to previous deliveries have not been fulfilled. An invoice amount denominated in a foreign currency shall be adjusted if there is a change in the exchange rate between the euro and the foreign currency concerned, in proportion to such change. This change will only take place in the period between the date on which Merchandise Essentials BV entered into the agreement and the date on which the client paid, and only if the exchange rate has risen by more than 2% to the disadvantage of Merchandise Essentials BV.
6. RISK OF INSOLVENCY. In the event of any event involving a risk of insolvency on the part of the client, Merchandise Essentials BV shall be entitled either to dissolve the agreement without the prior intervention of a court, upon which Article 12 becomes applicable, or to declare the agreed period for payment of the purchase price to be void.
7. RETENTION OF TITLE. The goods remain the property of Merchandise Essentials BV until full payment. If the client processes or resells the ordered goods itself at the time that they are still the property of Merchandise Essentials BV, all claims resulting from this resale will be automatically transferred to Merchandise Essentials BV. In case of non-payment, and if the goods are physically in the premises of Merchandise Essentials BV, Merchandise Essentials BV reserves the right to sell the goods to a third party for its own benefit, without the client having any right to claim compensation and/or reimbursement for this. The advances paid shall be used to compensate the possible losses in case of resale.
8. DELIVERY. The goods shall be delivered at Merchandise Essentials BV’s warehouses or at the client’s indicated address in accordance with the written agreement. If Merchandise Essentials BV is unable to deliver for any reason, for example due to the client’s absence at the address indicated, and a second delivery is therefore necessary, the client shall owe a fixed compensation of €125. With regard to clients who are traders, the delivery time confirmed by Merchandise Essentials BV is purely indicative. To the extent that the delivery time is essential for the client-trader, the client-trader must explicitly enter into an agreement to this effect when placing the order. In this case,the delivery date confirmed by Merchandise Essentials BV is binding. The delivery period confirmed by Merchandise Essentials BV is binding with regard to clients who are consumers, with understanding that the binding delivery period only applies to deliveries in the warehouses of Merchandise Essentials BV. Production shall only start after 100% prepayment of the full invoice or the advance invoice, depending on the case, more specifically after receipt of the amount in the bank account of Merchandise Essentials BV. Late payment therefore has indisputable consequences for the delivery period, which is postponed in accordance with the receipt of the payment. If other contractual arrangements were made, which include that the client does not have to pay until the delivery of the goods to the client is made, production will start after the client has given its written agreement on the invoice and on the technical data sheets of the products. In both of the above cases, Merchandise Essentials BV will be released from its delivery obligations in case of force majeure, and from its liability as a result of late delivery. Force majeure occurs in the event of delayed delivery of raw materials by suppliers, strike or lock-out, import or export prohibition, fire, wars, riots, natural disasters and/or government measures. In this case Merchandise Essentials BV reserves the right to cancel the agreement in whole or in part, or to suspend the execution of the agreement, without the client being able to claim any compensation for damages or the dissolution of the agreement on the basis of this.
9. TRANSPORT AND RISK. Unless otherwise agreed in writing, transport costs are always borne by the client. The transport is always at the risk of the client, with regard to damage, loss and possible delays by courier services or mail-order companies. For this reason, the client can express its preference for a particular courier service, but will continue to bear the transport risk. If the client does not indicate a preference, the courier service shall be chosen by Merchandise Essentials BV itself.
10. ACCEPTANCE OF GOODS AND PROTEST. Acceptance of the goods that is not followed by a complaint by registered letter within 8 calendar days with specific grievances constitutes the final acceptance of the products. Outside of this period, no further protest is possible. If any defects are found in certain parts of the goods, this does not mean that an objection can be made to the totality of the delivered goods. Such defects, which are reported on time, can only lead to a price reduction. There is no right to replacement or payment of compensation. No returns can be made without the written permission of Merchandise Essentials BV. If there are justified and timely protests, Merchandise Essentials BV has the right to offer repair or exchange, or to carry out a refund.
11. CANCELLATION OR TERMINATION. Each client has the right to cancel or terminate the agreement, subject to the payment of a compensation of 30% of the amount of the order, or the balance to be invoiced if this is lower. The right of withdrawal for clients who are consumers on the basis of the consumer protection legislation for distance selling does not apply. As this is a contract for custom-made goods, the client has no right of withdrawal. The client-consumer can therefore not revoke the contract.
12. DISSOLUTION. If the client fails to fulfil its obligations, the dissolution of the contract shall be established by operation of law at the expense of the client for the whole or for the part not yet executed. Merchandise Essentials BV also reserves the right to discontinue all outstanding services for the client and/or the companies controlled by the client. In all cases where an agreement is terminated by the client, or is dissolved at the client’s expense, the client is legally obliged, without any prior notice of default, to pay compensation of 30% of the amount of the order.
13. NON-DELIVERY. If Merchandise Essentials BV does not execute an order while the client has fulfilled all its obligations, the client is entitled to a compensation of 30% of the amount of the order. The client can only exercise this right by registered letter within 30 calendar days after the expiry of the delivery period, and after granting a final delivery period of 30 calendar days for the delivery of the goods.
14. CONFORMITY IN THE EXECUTION. The client accepts that the digital representation is purely indicative, and only provides an approximate picture of the product. Execution in accordance with the digital design is therefore only guaranteed under the proviso that deviations are permitted within certain limits, in terms of quantity, quality, composition, colour shades, firmness, shrinkage, shifts in dimensions and measurements, fabrics, positions of printing, proportions, etc. The client accepts that the printing and/or embroidery process as well as the production process may cause slight changes. The client may not invoke such minor changes to refuse payment, claim damages, refuse products and/or demand dissolution of the agreement. Merchandise Essentials BV is not liable for the way in which the medium behaves during various treatments in connection with the preparation, printing and/or finishing of the work. With regard to the reproduction, the client must accept that certain deviations from the first production may occur as a result of the technical requirements that the various reproduction and production processes have to fulfil.
15. TEXTILE QUALITY CONTROL AND THE RIGHT TO REPEAT PRODUCTION. Every order is subjected to a thorough quality control prior to delivery. Defective pieces (e.g. misprint, wrong sewing,…) are removed from the order, which may exceptionally lead to a shortfall of a few pieces. In that case Merchandise Essentials BV will reimburse these pieces to the client and a credit note will be drawn up. Only if more than 3% of the order is faulty, the right to a repeat production arises.
16. PERSONALISATION OF GOODS. The personalisation of goods delivered by the client is always at the client’s risk. These goods are not always suited to the requirements to personalise them, such as the absence of zippers, textile surface not suitable for printing, the loss of waterproofing, etc. The client accepts that the result of the printing and/or embroidery process may not meet its expectations. The client accepts that the product produced may not be able to withstand the normal use of the goods and/or their washing, drying and ironing. It is automatically assumed that any defect in the finished product is due to the product delivered by the client. The client accepts that the printing and/or embroidery process, as well as the production process, can cause damage to the goods and that this never results in a right to refuse payment, to claim damages, to refuse products and/or to demand dissolution of the agreement.
17. COPYRIGHTS. Designs, sketches, creations, scale models and other models made by Merchandise Essentials BV remain the sole property of Merchandise Essentials BV and may not be reproduced without written permission. The purchase of a creation by Merchandise Essentials BV does not imply the transfer of the intellectual property rights associated with it, unless otherwise agreed in writing. Merchandise Essentials BV can under no circumstances be held liable with regard to claims concerning intellectual property rights, which are submitted by third parties with regard to orders that Merchandise Essentials BV executes for a client.
18. APPLICABLE LAW. Any dispute falls under the exclusive jurisdiction of the Courts of Ghent, Kortrijk department. Each agreement and each order is governed by Belgian law, to the exclusion of the Vienna Sales Convention. The language of the proceedings shall be the Dutch language.
19. LEGAL LANGUAGE. Only the Dutch text of these general terms and conditions is legally valid. Other texts, which are made available on request, are translations only.