By visiting this site you agree to our general terms and conditions. These conditions are deposited at the Chamber of Commerce and Industry in Zwolle under reference number 05055988. On request we can send you a copy.
a) These conditions shall apply to all agreements concluded by Toppoint – hereinafter to be referred to as seller - with (a) third party (parties) – hereinafter to be referred to as purchaser –or resultant agreements, as well as to all offers made by seller.
b) The applicability of the conditions applied by purchaser is hereby explicitly rejected by seller.
c) In so far as these general conditions have also been drawn up in a different language than the Dutch language, the Dutch text shall always prevail in the event of differences.
2. Offers and orders
a) All offers are submitted voluntarily without any obligation of seller, unless agreed upon differently in writing.
b) The agreement is concluded by sending a written order confirmation by seller or through the actual implementation of the agreement by seller. In the first mentioned case the order confirmation shall be considered to represent the correct relationship between parties and parties shall be committed to the contents of the order confirmation.
c) Offers and promises by representatives of seller shall only be binding if they have been confirmed by seller in writing.d. Illustrations, catalogues, samples and drawings give a general representation of goods possibly sold by seller. Dimensions, weights or technical data, in the broadest sense of the word, included in an offer are only approximate indications, unless explicitly guaranteed in writing. Normal deviations, which are allowed within the branch, shall be permitted.
e) Other product-specific instructions/conditions are included in our price list and shall be considered to have been accepted by purchaser and considered to be part of these conditions.
f) Purchaser shall decide for himself whether the goods are suitable for the objective for which he wants to use them.
a) If an order is cancelled, the purchaser will be charged the actual costs incurred by the seller, subject to a minimum of € 29.50,-.
b) The seller may terminate an order, or refuse to accept an order from a purchaser, without giving reasons.
a) Unless agreed differently in writing, all prices are ‘ex works’ Bergentheim (EXW as per Incoterms 2010) excluding VAT, special packages, transport, insurance, import duties etc.
b) Seller shall conclude a breakage risk insurance with regard to earthenware, glass and chinaware products against payment of 3% over the total value of the goods, excluding VAT. If purchaser does not indicate that he wants to give up this insurance when placing the order, it will be taken out by us and the expenses will be passed on to the purchaser.
c) Prices provided at the time of the purchase or commission, or when the agreement was concluded, shall be based on material prices, salaries and national insurance contributions etc. that apply at that moment. An increase or decrease in one or more cost factors may always be charged by the seller, providing he has notified the purchaser about this price change in time before these costs are passed on.
a) Stated delivery periods are approximate and shall never apply as a deadline. Seller shall always try to observe a stated delivery time as much as possible, however when this period is exceeded, purchaser shall first declare in writing that seller is in default, taking into consideration a reasonable period. Exceeding the delivery time can never result in liability of seller, with the exception of intentional act or omission or gross negligence, and it also does not give purchaser the right to dissolve the agreement partly or wholly, neither does purchaser have the right to cancel the order, or refuse the receipt of goods.
b) Seller shall reserve the right to deliver in parts and invoice accordingly. The payment obligations shall commence after invoicing.
c) The agreed delivery period will commence once the purchaser has confirmed that the proof has been approved.
d) The following circumstances shall suspend the obligation of seller to deliver:
(i) failure to meet any payment obligations in time by purchaser;
(ii) failure to provide data in time by purchaser, which are required for commencing and implementing the work; (this also includes the proofs and confirmation that the proof has been approved).
(iii) all cases of force majeure as described in detail in article 8.
e) In the event of delivery on call the goods – as long as they have not been called – shall remain at the expense and risk of the purchaser under seller. The purchaser shall be obliged to call the delivery within the stipulated period, and if there is no previously agreed period, the purchaser shall call the delivery in any case within two months after concluding the agreement. If there is no call within the above-mentioned period, seller shall have the right to charge the sold [movable] goods, or dissolve the agreement through a simple message, without judicial intervention being required, irrespective of the seller’s right to compensation, including any costs of storage.
f) All delivery terms will be interpreted in accordance with Incoterms 2010.
g) The purchaser is obliged to purchase the goods at the moment that they are delivered to him in conformity with the applicable Incoterms or at the moment they have been made available to him according to the agreement. If the purchaser refuses the purchase or is negligent with regard to providing information or instructions that are required for the delivery, the goods will be stored at the expense and risk of the purchaser.
h) If purchaser remains in default with regard to payments, seller shall not be obliged to continue his delivery and seller shall be entitled to dissolve the agreement without judicial intervention, retaining the obligation of purchaser to compensate seller.
i) Seller has the right to carry out additional or less deliveries, within a range of at most 10% of the ordered amount, and to pass these costs on to the purchaser.
j) A consignment note, delivery note or a similar document issued with the delivery is regarded to represent the amount and quality of delivered goods in a correct way, unless purchaser immediately informs seller in writing about any objections. In the event thatpurchaser has informed seller in time, the latter does not have the right to suspend payment with regard to what has been (properly) delivered, except if there are mandatory statutory provisions to the contrary.
k. The goods to be delivered shall always travel at the expense and risk of the purchaser. Purchaser shall at all times be obliged to cooperate with the delivery actions. Purchaser shall be responsible for the discharge of the delivered goods, except if there are other stipulations.
a) Seller shall deliver in agreement with what is considered to be normal and customary in the trade of goods in question, with the exception of a written guarantee provided by seller concerning the quality. Seller shall be notified in writing about all complaints concerning delivered goods, under penalty of cancellation, within a reasonable period, however at the latest within 8 days after the day of delivery. Purchaser is obliged to inspect the delivered goods with respect to their soundness immediately after receipt.
b) Purchaser shall notify seller in writing about non-visible failures in the delivered goods to seller within 10 days after discovery, however at the latest within one month after delivery.
c) In the event of a justified and timely complaint seller shall never be obliged to do more than replace the movable goods to which the complaint refers, or pay a fair compensation to be decided by him, which however shall never exceed the invoice amount or value of the movable goods to which the complaint refers. Any further obligation to compensate damage, including indirect damage, is explicitly excluded, except for intentional act or omission or gross negligence on behalf of seller.
d) The guarantee of seller shall not apply, if:
(i) defects in goods are the result of normal wear and/or improper use;
(ii) goods have been subjected to abnormal conditions;
(iii) defects are the result of use that is not in agreement with maintenance instructions;
(iv) purchaser and/or third parties called in by purchaser
– without written permission of seller – have made changes and/or performed other work with regard to delivered goods.
e) A justified and timely complaint concerning a part of delivered goods shall not suspend the payment obligations of other delivered goods, except if there are mandatory statutory provisions to the contrary.
a) Payment shall always take place without any reduction and/or settlement in agreement with the terms of payment stated on the invoice. If a term of payment has been granted, payment shall take place at the latest within this term, however in all cases at the latest within 30 days after the invoice date, to a bank or giro account to be stated by seller. Seller shall be entitled to include a credit restriction surcharge of 2% on his invoices, which in the event of non-payment shall be unconditionally payable on the due date.
b) In default of payment on the due date, purchaser shall be in explicit default by operation of law, therefore without a more specific notice of default being required. Then the total accounts receivable of seller, as well as of invoices of which the due date has not expired, shall be claimable immediately and as a lump sum. In this case any stated reductions shall be cancelled and purchaser shall have to pay an interest of 1% a month or a part of a month to seller, or the statutory trade interest – which equals the refunding interest established by the European Central Bank, increased by 7% - if this interest is higher. Furthermore, purchaser shall have to pay all costs to seller, both court costs and extrajudicial costs, which seller had to incur in order to settle his claim. The extrajudicial collection costs when passing on a claim for collection shall be fixed at 15% of the sum passed on for collection, such without a maximum and with a minimum of € 25,-.
c) In the event that purchaser is declared to be bankrupt, is granted a moratorium on payments, winds up or sells his company, his movable goods or a part of these goods is seized and/or one or more terms of payment have not been observed, the claim of seller shall be claimable immediately and as a lump sum, all without prejudice to the right of seller to compensation of damage, lost profit, interest and possible collection costs.
d) Before delivering or continuing with the delivery, the seller shall have the right to stipulate sufficient security with regard to the purchaser observing his payment obligations. A refusal by the purchaser to provide the required security shall entitle the seller to consider the agreement as being dissolved, without prejudice to his right to compensation of any damage suffered by him.
8. Intellectual property
a) The seller reserves all rights and powers accorded to the seller by the Copyright Act and other intellectual property legislation and regulations.
b) Intellectual property rights associated with the agreements between the purchaser and the seller remain the property of the seller, or the third party from whom the seller acquired the right(s).
c) None of the provisions of any agreements or these General Trade Conditions permit the (partial) transfer of intellectual property rights to the purchaser. The purchaser acknowledges the seller’s intellectual property rights and undertakes to refrain from any form of direct or indirect infringement of these rights.
d) The purchaser fully indemnifies the seller against third-party claims for compensation resulting from infringement of intellectual property rights, and also indemnifies the seller against any costs that may be incurred in connection with such claims.
9. Retention of title
a) The ownership of the goods shall only be transferred to purchaser as soon as he has fully met all his obligations from all agreements concluded with seller with regard to the delivery of the goods.
b) As long as the ownership of the goods has not been transferred to purchaser, he may not pledge the goods, or grant any third party a right to these goods, except for within the normal operation of his company. On first demand of seller the purchaser shall be obliged to cooperate with establishing a first right of pledge on the accounts receivable that purchaser gets or shall get on account of delivering goods to his buyers.
c) The purchaser shall be obliged to store goods that have been delivered under retention of title with due care and as recognisable property of the seller.
d) The seller shall have the right to take back the goods that have been delivered under retention of title and which are still present at purchaser, if purchaser has been in default with regard to observing his payment obligations or if purchaser has financial difficulties or may run into financial difficulties. Purchaser shall always grant seller free access to his sites and/or premises in order to inspect goods and/or exercise his rights.
e) The aforementioned provisions referred to under a up to and d do not effect the other rights belonging to seller.
10. Force majeure
Seller shall not be obliged to observe any obligation if he cannot meet his obligations as a result of force majeure. Force majeure shall be understood to mean all external causes, foreseen or unforeseen, on which seller does not have influence, as a result of which seller or third parties called in by seller are not able to observe their commitments. This shall in any case include delayed or too late deliveries or non-deliveries by third parties; bankruptcy, moratorium on payments, transfer of ownership of the company of purchaser or of seller; intentional act or omission or negligence by the staff of seller; transport blockades or other transport problems; fire; (natural) calamities; strikes; industrial accidents; disturbances or riots; wars and statutory trade restrictions. Force majeure by suppliers or other called-in third parties on which seller depends is also regarded as force majeure of seller.
a) In the event that the seller is liable, liability is limited according to this article.
b) The seller is not liable for losses of any kind incurred as a result of the seller’s use of inaccurate and/or incomplete information supplied by or on behalf of the purchaser.
c) In the event that the seller is liable for certain losses, the seller’s liability is limited to the invoice value of the order, or the part of the order to which the liability pertains.
d) In any event, the seller’s liability is always limited to the amount paid out by its insurer in that particular instance.
e) The seller is only liable for direct losses.
f) In the context of these General Trade Conditions ‘direct losses’ are defined as reasonable costs incurred to establish the cause and extent of damage or losses, insofar as the assessment pertains to damage or losses in the sense of these conditions, reasonable costs incurred to remedy the seller’s inadequate performance such that it conforms to the agreement, insofar as the inadequate performance can be attributed to the seller, and reasonable costs, incurred to prevent or limit damage or losses, insofar as the purchaser can prove that the said costs resulted in the limitation of direct losses as defined in these general trade conditions.
g) The seller cannot be held liable for indirect losses, including consequential losses, loss of profit, lost savings or losses due to business stagnation.
h) The limitations of liability set out in this article do not apply to damage or losses attributable to wilful intent or gross negligence on the part of the seller or its managers.
12. Entire agreement
If purchaser does not meet his obligations, or does not meet his obligations in time or properly, which result from any agreement concluded with seller, he shall be in default as a result of this single fact, without a notice of default being required by seller, and seller shall be entitled to have the agreement declared to be dissolved without judicial intervention, without prejudice to all other rights belonging to him.
13. Applicable law
a) Netherlands law shall apply to all offers of seller, to agreements concluded between him and purchaser, or resultant agreements. If the purchaser is a not a legal entity incorporated under Dutch law, the applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
b) All disputes between purchaser and seller shall only be settled by the court within whose jurisdiction seller or purchaser have their registered office, to be decided by seller, except if there are statutory mandatory provisions to the contrary.
These general conditions of sale have been filed at the Chamber of Commerce and Factories in Zwolle under number 05055988.