1 | APPLICATION
1.1 These General Terms and Conditions apply to all legal relationships that an Other Party enters into with Gildewerk BV.
1.2 A party to a legal relationship with Gildewerk BV will be referred to in these General Terms and Conditions as the ‘Other Party’.
1.3 Gildewerk BV provided these General Terms and Conditions to the Other Party upon entering into its first agreement with the Other Party. The Other Party declares itself to be familiar with these General Terms and Conditions, also with regard to any transactions to be made at a later date. In the event that Gildewerk BV amends these General Terms and Conditions in the future, it will provide the Other Party with a new copy of the General Terms and Conditions and publish the amended General Terms and Conditions on its website. If so desired, the Other Party can request Gildewerk BV to provide a copy of the (where applicable: previous) General Terms and Conditions. Gildewerk BV will comply with this reasonable request within a reasonable period of time.
1.4 Deviations from these General Terms and Conditions shall only be possible and valid if and insofar as such deviations have been expressly agreed in writing. Any deviation from these terms and conditions in an agreement not specifically tailored to the legal relationship (such as a general condition) is not deemed valid.
1.5 In the event that the Other Party uses other general terms and conditions, these are valid only insofar as there is no conflict with these General Terms and Conditions. In the event of any conflict or uncertainty, these General Terms and Conditions shall apply.
1.6 Wherever in these Terms and Conditions reference is made to “in writing”, this shall include communication by email, fax or any other means of communication which can be regarded as equivalent in the light of the latest technology and generally accepted standards.
1.7 If and to the extent that any provision or part of any provision of these General Terms and Conditions does not apply, is not legally valid or cannot otherwise be invoked, this shall not affect the application and validity of the remaining provisions. Gildewerk BV and the Other Party agree that the provisions which cannot be invoked will be replaced by provisions which are permissible within the limits of the law and which also come as close as possible to the purpose and meaning of the original provisions.
2 | AGREEMENTS
2.1 Agreements between Gildewerk BV and the Other Party are established by entering into a written agreement, an order by telephone issued by the Other Party, and/or by Gildewerk BV starting with the execution of the agreement, insofar as the Other Party has made such statements that Gildewerk BV was justified in assuming that an agreement had been entered into, or if the Other Party has failed to make statements that did not make it clear that an agreement had not been entered into.
2.2 Any supplements or amendments to these General Terms and Conditions by the other party shall only become binding after written confirmation by Gildewerk BV. If Gildewerk BV does not agree to a supplement or amendment, these General Terms and Conditions shall remain in full force and unchanged.
3 | OFFERS AND/OR QUOTATIONS
3.1 All offers, quotations, price lists, delivery times and other information are issued without obligation, unless the information contains an explicit acceptance term that is specific to the legal relationship with the other party.
3.2 The prices charged by Gildewerk BV are excluding VAT and other additional costs. Other additional costs may include – but are not limited to – transport costs and invoices declared for third parties that have been hired. Additional costs (if any) will be indicated on the offer insofar as possible.
3.3 Samples, brochures, drawings, models, colour palettes, dimensions, weights and other descriptions shown and/or provided are as accurate as possible, but are only indicative. No rights can be derived from the above, unless Gildewerk BV and the Other Party have in a specific case expressly agreed otherwise in writing.
3.4 Samples, brochures, drawings, models, colour palettes, dimensions, weights and other descriptions referred to in Article 3.3 remain the property of Gildewerk BV at all times, unless Gildewerk BV and the Other Party have expressly agreed otherwise in writing. The aforementioned items must be returned upon the first request by Gildewerk BV. Without the prior written consent of Gildewerk BV, the items are not allowed to be (i) reproduced; (ii) made available to third parties for viewing; (iii) disposed of; or (iv) reproduced or distributed in any other way.
3.5 In the event that changes are introduced by the government and/or trade organisations between the date of entering into the agreement and the execution of the agreement in respect of, for example, wages, employment conditions or social insurance, Gildewerk BV is entitled to pass on these increases to the Other Party. If, between the aforementioned dates, a new price list is issued by Gildewerk BV and/or its suppliers and comes into force, Gildewerk BV is entitled to charge the Other Party the prices stated therein.
3.6 All offers, quotations and agreements made by Gildewerk BV are made with the utmost care. However, it may occur that an offer, quotation or agreement contains a printing or typing error. To the extent that the error is an obvious mistake, the other party cannot hold Gildewerk BV responsible for this error, even if an agreement has already been entered into. If the error is not immediately obvious, Gildewerk BV is entitled to correct the error until the time that the agreement is entered into, even if it has already made an offer to the Other Party with a time limit that is specifically tailored to the Other Party, as referred to in Article 3.1. Gildewerk BV will inform the Other Party of the error and make a revised offer, or offer the possibility of cancelling the agreement if the Other Party does not wish to continue with the agreement after the obvious error has been corrected.
4 | DELIVERY AND DELIVERY TIMES
4.1 Unless otherwise agreed in writing or stated in these General Terms and Conditions, the delivery times specified by Gildewerk BV or the Other Party within which the goods are to be delivered can never be regarded as strict deadlines. In the event that Gildewerk BV fails to fulfil its obligations under the agreement or fails to do so on time, the Other Party must give written notice of default to Gildewerk BV, after Gildewerk BV and the Other Party have consulted, as referred to in Article 5.4.
4.2 In the event of deliveries being made in parts, each delivery or phase is considered a separate transaction and Gildewerk BV may be invoiced for each transaction at its own discretion.
4.3 Unless otherwise previously agreed in writing, the risk in respect of goods shall pass to the Other Party at the time of delivery. For the purposes of this Article 4.3, the moment the delivery is offered to the other party is considered the moment of delivery.
4.4 Unless otherwise previously agreed in writing, transport (dispatch) of the goods shall be carried out in a manner to be arranged by Gildewerk BV. Below the free delivery amount, transport is at the expense and risk of the Other Party. Above the free delivery amount, transport is at the expense and risk of Gildewerk BV. In both cases Gildewerk BV is not liable for any damage, of whatever nature and form, arising from the transport.
4.5 If delivery of the goods to the Other Party is or appears to be impossible due to a cause within the scope of risk of the Other Party, Gildewerk BV reserves the right to store the goods at the expense and risk of the Other Party (at its own premises or at the premises of a third party to be appointed by them). Gildewerk BV shall notify the Other Party in writing as soon as reasonably possible of the storage and, unless it concerns a deadline, shall also set a reasonable timeframe within which the Other Party must enable Gildewerk BV to deliver the goods, which shall be carried out at the expense of the Other Party.
4.6 If the Other Party remains in default after the expiry of the reasonable period referred to in Article 4.5, the Other Party shall be deemed to be in default after the expiry of 1 (one) month, calculated from the date on which the goods were placed in storage, and Gildewerk BV shall be entitled to dissolve the agreement in whole or in part, in writing and with immediate effect, without prior or further notice of default being required, without judicial intervention and without being liable to pay compensation for any damages, costs or interest.
4.7 The provisions in Articles 4.5 and 4.6 do not release the Other Party from its obligations under the agreement, including the payment of the price due and additional costs, including but not limited to the costs of transport, storage and administration incurred by Gildewerk BV. Notwithstanding the foregoing, Gildewerk BV shall be entitled, if the circumstances so warrant and at its sole discretion, to make an all-inclusive offer of compensation for damages. The Other Party shall pay a reasonable amount, to be determined at that time, in settlement of the damage and costs incurred in the performance of its obligations, without being entitled to receive anything in return. When determining the amount of compensation for damages, both the negative and positive contractual interest of Gildewerk BV will be taken into account.
4.8 In addition to the provisions for payment set out in Article 8 below, Gildewerk BV is entitled, at its own discretion, to require the Other Party to make an advance payment or provide security for the fulfilment of the Other Party’s financial obligations before proceeding with any deliveries. Gildewerk BV is also entitled to invoke this Article 4.8 in the event that Gildewerk BV and the Other Party have previously entered into agreements that are subject to these General Terms and Conditions.
5 | PROGRESS OF DELIVERY
5.1 Gildewerk BV is not obliged to proceed with the delivery of the goods until it has all the necessary information in its possession and has received the agreed payment(s) as referred to in Article 8 (if applicable). If any delay in delivery occurs as a result of this provision, this shall be for the account and risk of the Other Party. In such a case, Gildewerk BV will change the delivery date accordingly.
5.2 If, due to one or more causes beyond the control of Gildewerk BV, the delivery cannot be carried out in a normal manner, without interruption or without incurring additional costs, Gildewerk BV shall be entitled to recover the additional costs from the Other Party.
5.3 All expenses incurred by Gildewerk BV in connection with the performance of the agreement at the request of the Other Party shall be borne by the Other Party, unless the parties have expressly agreed otherwise in writing.
5.4 In the event that delivery by Gildewerk BV is delayed for reasons for which Gildewerk BV is responsible, Gildewerk BV shall notify the Other Party within a reasonable period of time. The parties hereby agree to discuss any change in the delivery date in good faith. Insofar as Gildewerk BV and its Other Party fail to agree, the provisions set out in Article 4.1 shall apply.
6 | RECEIPT OF GOODS, COMPLAINTS AND RETURNS
6.1 The Other Party is obliged to inspect the goods immediately upon receipt. If the Other Party notices any visible defects, faults, imperfections and/or shortcomings, these must be noted on the consignment note or packing slip and reported to Gildewerk BV immediately, or the Other Party must report this to Gildewerk BV within 24 hours of receipt of the goods, followed by immediate written confirmation to Gildewerk BV. This does not apply to dropshipping products. The customer of the Other Party must contact the Other Party in these cases.
6.2 All other complaints must be reported to Gildewerk BV by registered letter within 8 calendar days after receipt of the goods or within 8 calendar days after the Other Party could reasonably have discovered the fault, stating the reason.
6.3 If the abovementioned complaints are not reported to Gildewerk BV within the periods referred to, then the goods are deemed to have been received in good condition.
6.4 Goods are delivered in the packaging in stock at Gildewerk BV. Minor deviations regarding, for example, stated sizes, weights, numbers or colours (of goods or packaging) do not qualify as a shortcoming on the part of Gildewerk BV.
6.5 With regard to imperfections in natural products, no claims can be validated if these imperfections relate to the nature and properties of the raw material or raw materials from which the item is made.
6.6 Complaints do not suspend the payment obligations of the Other Party until the complaint has been formally approved by Gildewerk BV.
6.7 Gildewerk BV must be given the opportunity to investigate a complaint. If it is necessary to arrange a return shipment in order to investigate a complaint, this will only be done at the expense and risk of Gildewerk BV if this has been expressly agreed in writing in advance.
6.8 A return shipment shall in all cases be made in a manner to be decided by Gildewerk BV. In case of a return shipment, the item must be returned in its original packaging. Return shipments are at the expense and risk of the Other Party.
6.9 If, after delivery, the goods have changed in nature and/or content, have been wholly or partially processed or treated, have been damaged or repackaged, the right to complain shall lapse.
6.10 In the event of a justified complaint, Gildewerk BV will refund the payments already made by the Other Party in respect of the goods and the costs of returning the goods within a reasonable period of time by transferring the amount back to the bank account from which the payment was made. In order to be reimbursed for the return shipment, the Other Party must send Gildewerk BV an invoice for the actual costs of the return, together with proof of these costs. Any damages will be settled in accordance with the provisions of Article 7.
7 | LIABILITY AND WARRANTY
7.1 Gildewerk BV will fulfil its obligations as may be expected of a company in its industry, but accepts no liability for damage, including death and personal injury, consequential damage, loss of trade, loss of profit and/or damage caused by stagnation, resulting from acts or omissions of Gildewerk BV, its employees or third parties engaged by it, except in the case of intent and/or wilful recklessness on the part of Gildewerk BV, its board of directors and/or its managerial staff.
7.2 Without prejudice to the provisions in this Article 7, the liability with regards to Gildewerk BV – for whatever reason – is limited to a maximum of 1x the net price of the goods delivered or work performed under the respective agreement.
7.3 Without prejudice to the provisions of article 7.2, Gildewerk BV is at no time obliged to pay compensation in excess of the amount for which Gildewerk BV is actually insured at any time, insofar as the compensation is covered by the insurance taken out by Gildewerk BV.
7.4 Gildewerk BV warrants that the delivered goods are of the customary quality and in good condition. However, the actual service life of the goods cannot be guaranteed.
7.5 In the event of visible faults, imperfections and/or defects in or on the goods, which must have been present at the time of delivery, Gildewerk BV fully intends to repair or replace the goods free of charge, at its own discretion. The Other Party must inform Gildewerk BV of the fault, imperfection or defect as soon as reasonably possible.
7.6 If the goods delivered by Gildewerk BV are covered by a manufacturer’s warranty, this warranty shall also apply between the parties, insofar as this is permitted under the original manufacturer’s warranty.
7.7 The Other Party loses its rights vis-à-vis Gildewerk BV, is liable for all damage that third parties may have suffered and indemnifies Gildewerk BV against all claims for damages by third parties, if and insofar as:
7.7.1 the aforementioned damage has been caused by improper use and/or use that deviates from the instructions and/or advice given by Gildewerk BV and/or improper storage of the delivered goods by the Other Party; or
7.7.2 the aforementioned damage has been caused by errors, incompleteness or inaccuracies in the information, materials, data carriers and whatever else has been provided and/or prescribed to Gildewerk BV by, or on behalf, of the Other Party.
7.8 In all cases, the period within which Gildewerk BV can be held liable for compensation of any damage that has been determined is limited to 6 months from the date on which the liability for compensation for damages has been established.
8 | INVOICE AND PAYMENT
8.1 Unless otherwise agreed in writing in advance, payment must be made before dispatch or delivery if this is the first time that Gildewerk BV has entered into an agreement with the Other Party to which these General Terms and Conditions apply. Payment must be made in accordance with the payment instructions provided by Gildewerk BV.
8.2 In the event that Gildewerk BV has previously entered into agreements with the Other Party to which these General Terms and Conditions also apply, payment must be made within 30 calendar days after the invoice has been sent, unless the parties have already agreed in writing to a different term. Gildewerk BV sends its invoices digitally, via an email with the invoice as a pdf attachment, to the email address provided by the Other Party. The Other Party is responsible for the correctness of the email address and shall inform Gildewerk BV of any changes.
8.3 If the Other Party fails to fulfil its payment obligations on time, Gildewerk BV is entitled, without further notice of default or judicial intervention being required, to charge interest at the statutory commercial interest rate from the 31st calendar day after the invoice date until the date of full payment.
8.4 If the Other Party fails to fulfil its payment obligations on time, Gildewerk BV is entitled to suspend the fulfilment of its obligations towards the Other Party until payment has been made or adequate security has been provided. The same shall also apply prior to the time of default if Gildewerk BV has reasonable grounds to doubt the creditworthiness of the Other Party.
8.5 Payments made by the Other Party shall always first be used to settle all interest and/or costs due and then to settle due and payable invoices that have been outstanding for the longest period, unless the Other Party expressly states in writing at the time of payment that the payment relates to a later invoice.
8.6 If the Other Party has, or will foreseeably have, one or more counterclaims against Gildewerk BV for whatever reason, the Other Party waives its right to offset such claim against Gildewerk BV’s claim against it. This waiver of the right to offset shall also apply if the other party is granted a (provisional) suspension of payments and/or is in a state of bankruptcy.
8.7 Gildewerk BV may, at its discretion, dissolve the agreement in whole or in part, without further notice of default or judicial intervention, whether or not together with a claim for (additional) damages, in the circumstances referred to in this Article 8 or in similar circumstances.
9 | RETENTION OF TITLE
9.1 Gildewerk BV retains ownership of all goods it has delivered and will continue to deliver until the Other Party has fulfilled all its payment obligations to Gildewerk BV arising from any and all agreements. Such payment obligations include, but are not limited to, payment of the price of the goods, plus any claims in respect of work done in connection with such delivery, as well as claims in respect of additional costs and, where applicable, compensation for the Other Party’s failure to fulfil its obligations.
9.2 Goods covered by the retention of title may only be resold by the Other Party as part of normal course of business.
9.3 In the event that Gildewerk BV invokes its retention of title, the agreement entered into concerning the goods shall be deemed dissolved, without prejudice to Gildewerk BV’s right to claim compensation for damages, loss of profits and additional costs (including interest). Gildewerk BV or a third party appointed by Gildewerk BV is entitled to gain access to the goods in order to retrieve them (or have them retrieved) by Gildewerk BV itself if it so wishes, and the Other Party undertakes, if necessary, to provide all necessary cooperation to enable the retrieval of the goods upon first request by or on behalf of Gildewerk BV.
9.4 The other party is obliged to inform Gildewerk BV in writing as soon as possible of the fact that third parties are exercising rights to the goods subject to retention of title as referred to in this article 9.
10 | ENCUMBRANCE OF DELIVERED GOODS
10.1 In view of Article 9 of these General Terms and Conditions, the Other Party agrees that it is not authorised to pledge and/or create a nonpossessory lien on the delivered goods and/or place the goods under the effective control of one or more financiers for storage until it has fully fulfilled its payment obligations to Gildewerk BV. If the Other Party undertakes any of the aforementioned actions, this shall be deemed to be non-performance attributable to the Other Party. Gildewerk BV is then entitled to immediately suspend its obligations under the agreement or to dissolve the agreement without any notice of default being required, without prejudice to its right to compensation for damages, loss of profits and additional costs (including interest).
11 | BANKRUPTCY AND LOSS OF POWER TO DISPOSE OF ASSETS
11. 1 Without prejudice to the other provisions of these General Terms and Conditions, the agreement between Gildewerk BV and the Other Party shall be dissolved, without any notice of default or judicial intervention being required, at the first point in time when the Other Party applies for or is in a state of (provisional) suspension of payments, is in a state of or files for bankruptcy, is subject to an attachment order, is placed under guardianship or receivership or otherwise loses the power of disposal or legal capacity to act with regard to its assets or parts of its assets, unless the administrator or receiver recognises the obligations arising from the agreement as a debt of the estate.
12 | FORCE MAJEURE
12. 1 In the event that it is impossible for Gildewerk BV to perform what it is obliged to do under the agreement entered into with the Other Party, and this is due to non-attributable failure on the part of Gildewerk BV and/or on the part of third parties or suppliers contracted by Gildewerk BV for the performance of the agreement, or if any other serious reason arises on the part of Gildewerk BV, Gildewerk BV shall be entitled to dissolve the agreement entered into between the parties, or to suspend the performance of its obligations towards the Other Party, for a reasonable period to be determined by Gildewerk BV, without being obliged to pay any compensation. If the aforementioned situation occurs when the agreement has been partially fulfilled, the Other Party is obliged to fulfil its obligations towards Gildewerk BV up until that time.
12.2 Circumstances in which non-attributable non-performance shall be deemed to arise include war, riots, mobilisation, domestic and foreign unrest, government measures, strikes and lock-outs by workers or the threat of such circumstances; disruption of existing currency relations at the time of the conclusion of the agreement; weather conditions; interruption of operations due to fire, accidents or other incidents and natural phenomena; all this irrespective of whether the failure or delay in performance occurs at Gildewerk BV, its suppliers or third parties it has contracted for the fulfilment of its obligations.
13 | DISSOLUTION, ANNULMENT AND/OR TERMINATION
13.1 Unless mandatory provisions dictate otherwise, the Other Party waives its right to dissolve or annul the agreement with Gildewerk BV.
14 | INTELLECTUAL PROPERTY RIGHTS
14.1 Goods produced and sold by Gildewerk BV, as well as its advertising and promotional material and/or any other goods (such as models) may be provided with brand names and logos. The other party must ensure that this is the case.
14.2 The parties agree and stipulate that the infringement of the applicable trademark legislation with regard to goods delivered by Gildewerk BV, or any other infringement of the intellectual property rights of Gildewerk BV, constitutes a serious breach by the Other Party, which justifies the termination of the business relationship and the dissolution or annulment of any unfulfilled agreements, without prejudice to the obligation of the Other Party to compensate all damages resulting from such a breach of contract.
15 | APPLICABLE LAW AND COMPETENT LAW
15.1 The agreement between Gildewerk BV and the Other Party is governed exclusively by Dutch law. All disputes arising out of or in any way connected with the Agreement (directly or indirectly)are governed by Dutch law.
15.2 If, contrary to the provisions of Article 15.1, the legal system of the country of destination of the goods is more favourable to Gildewerk BV than Dutch law, the legal consequences of the property law with regard to a retention of title in respect of goods intended for export shall be governed by that law.
15.3 Any disputes shall be referred exclusively to the competent Dutch court of the District Court of Amsterdam.
15.4 Concerning disputes arising from the agreement entered into with an Other Party located outside the Netherlands, Gildewerk BV is entitled to act in accordance with the provisions of Article 15.3 or, at its sole discretion, to bring a dispute before the competent court in the country where the Other Party is located.
15.5 The 1980 Convention on Contracts for the International Sale of Goods (the Vienna Sales Convention) is expressly declared to be not applicable.
16 | OTHER AND FINAL PROVISIONS
16.1 These General Terms and Conditions are referred to as the ‘General Terms and Conditions 11 June 2024’.
16.2 Any previous or subsequent amendments to these Terms and Conditions shall not affect the transaction to which these Terms and Conditions have been declared applicable, unless expressly agreed otherwise.