TERMS AND CONDITIONS
CLAUSE 1 DEFINITIONS
1.1. The terms below are defined as follows for the purposes of these general terms and conditions, unless explicitly stated otherwise:
EPN: European Player Network B.V.;
Buyer: EPN's counterparty, acting in the practice of a profession or conduct of a business;
Agreement: the agreement between EPN and the buyer.
CLAUSE 2 GENERAL
2.1. The provisions of these general terms and conditions apply to every offer and every agreement between EPN and a buyer to which EPN has declared these terms and conditions applicable, insofar as the parties have not deviated from these terms and conditions explicitly and in writing.
2.2. These terms and conditions also apply to all agreements with EPN the performance of which requires the engagement of third parties.
2.3. The terms and conditions of the principals do NOT apply, unless EPN has explicitly accepted these in writing.
2.4. The buyer hereby declares it is acting in the practice of a profession or conduct of a business.
2.5. Once a buyer has contracted with EPN with application of these terms and conditions, the particular buyer accepts application of these terms and conditions to subsequent agreements between EPN and the buyer (until a new version of these terms and conditions is agreed upon between the buyer and EPN).
CLAUSE 3 OFFERS AND PROPOSALS
3.1. All offers are without obligation and can be revoked by EPN at any time, unless the offer mentions a specific time period for acceptance.
3.2. The prices reported by EPN are including packaging and excluding VAT and other government levies and are also excluding any shipping or transport costs, unless explicitly stated otherwise. The content of folders, catalogues, etc., are not binding on EPN unless the agreement explicitly states otherwise.
3.3. Offers are not valid for subsequent orders unless explicit written agreements have been made otherwise.
CLAUSE 4 PERFORMANCE OF THE AGREEMENT
4.1. EPN will perform the agreement to the best of its knowledge and ability and in accordance with high standards and on the basis of the latest scientific knowledge at that time.
4.2. If and insofar as proper performance of the agreement requires this, EPN has the right to have activities performed by third parties.
4.3. Agreements entered into with EPN employees who do not have representative authority are not binding on EPN, unless and to the extent this is not confirmed in writing by EPN in the agreements.
4.4. EPN is in any event not liable for damage or not required to pay any damage compensation if the damage is the result of inaccurate and/or incomplete information furnished by the buyer.
4.5. The buyer indemnifies EPN against any claims from third parties that suffer damage in connection with the performance of the agreement. This indemnification does not apply to the extent the damage is the result of attributable failure on EPN's part.
CLAUSE 5 SUPPLY
5.1. The items are supplied ex warehouse at EPN's premises.
5.2. The buyer is obligated to take the items at the moment EPN confirms the order of the buyer in writing,
which includes electronically.
5.3. If the buyer refuses the items or neglects to provide information or instructions that are necessary for the delivery, EPN has the right to store the items at the buyer's expense and risk.
5.4. If the items are delivered, EPN is entitled to charge any delivery costs. These will be invoiced separately in that case.
5.5. EPN is entitled to deliver the items in instalments, unless this has been deviated from by agreement.
5.6. EPN has the right to invoice for the items thus delivered separately.
5.7. A delivery time stated by EPN is purely indicative; failure to meet a delivery time does not put EPN in default.
CLAUSE 6 SAMPLES AND MODELS
6.1. If the buyer has been shown or furnished with a sample or model, this is presumed to have been provided only as an indication, without the item having to answer to this, unless it is explicitly agreed in the agreement that the item will correspond to that sample or model.
CLAUSE 7 INSPECTION, COMPLAINTS
7.1. The buyer is required to inspect the items delivered or have these inspected at the moment of pick-up or delivery, but in any event as soon as possible (within two working days). In this context, the buyer must inspect whether the quality and quantity of the items supplied answers to the agreement, or at least satisfies the requirements stipulated for these in normal trade.
7.2. Any visible defects must be reported to EPN within 5 working days after supply. Invisible defects must be reported within 5 working days after discovery, but no later than within 6 months after supply.
7.3. Even if a complaint is lodged on time pursuant to the previous paragraph, the buyer is still obligated to accept and pay for the items purchased. If the buyer wishes to return defective items, this can only be done in the manner indicated by EPN and with EPN's prior written permission.
7.4. If a complaint is not lodged on time, all claims the buyer may have in connection with this expire.
CLAUSE 8 COMPENSATION, PRICE AND COSTS
8.1. EPN may pass on price increases if EPN can demonstrate that between the moment of the offer and the performance of the agreement, significant increases in prices have occurred in relation to, for instance, exchange rates, wages, raw materials, semi-manufactures or packaging material.
CLAUSE 9 PAYMENT
9.1. Payment must be made within 14 days after invoice date, in the manner specified by EPN and in the currency in which the invoice was drawn up. Objections to the height of the invoices do not suspend the obligation to pay.
9.2. If the buyer fails to pay within the 14-day payment term, the buyer is in default by operation of law. In such case, the buyer owes interest of 2% per month, unless the statutory interest rate is higher, in which case the statutory interest rate applies. The interest on the amount due will be calculated from the moment the buyer is in default until the moment the amount is paid in full. In that event, the buyer also owes 15% of the outstanding amount in collection costs (with a minimum of EUR 250), without EPN having to remind the buyer of the outstanding payment.
9.3. EPN's claims on the buyer are immediately due and payable if the buyer enters liquidation, becomes bankrupt or is granted a moratorium on payments.
9.4. EPN has the right to first apply payments made by the buyer to the costs, then to the interest that has fallen due and finally to the principal and the current interest, regardless of whether the buyer has indicated a different order for application of the payment.
9.5. If EPN has incurred higher costs for collection and these costs were reasonably necessary, these costs are also eligible for reimbursement.
9.6. Any reasonable legal costs and enforcement costs are likewise at the buyer's expense.
CLAUSE 10 RETENTION OF TITLE
10.1. EPN remains owner of the items supplied as long as the buyer has not fully paid EPN's claims as consideration for the supply of the items, for items supplied earlier and/or for items supplied later, along with related services.
10.2. The buyer is not authorised to pledge or otherwise encumber the items subject to the retention of title. The buyer is only entitled to sell such items in the normal course of its business operations.
10.3 If third parties levy attachment on the items supplied subject to retention of title or wish to establish or enforce rights to these, the buyer is obligated to notify EPN of this as quickly as can be reasonably expected of it.
10.4. The buyer commits to insure the items supplied subject to retention of title and keep them insured against fire, explosion and water damage, as well as against theft, and to provide the policy for this insurance for inspection immediately on request.
10.5. If the buyer fails to comply with any obligation towards EPN under the agreement, EPN is entitled to recover the items without notice of default.
10.6. The buyer authorises EPN to enter the location where the items which are still subject to retention of title are located.
CLAUSE 11 SUSPENSION AND DISSOLUTION
11.1. EPN is authorised to suspend compliance with the obligations or dissolve the agreement if:
- the buyer fails to comply with the obligations under the agreement or fails to do so in full.
- after the agreement is contracted, EPN becomes aware of circumstances that give EPN just reason to fear that the buyer will not satisfy the obligations. If there is just reason to fear that the buyer will only satisfy its obligations in part or will not do so properly, the suspension is only permitted to the extent justified by the failure.
- when contracting the agreement, the buyer was asked to furnish security for satisfaction of its obligations under the agreement and this security is not forthcoming or is inadequate. As soon as security has been furnished, the right to suspend lapses, unless this satisfaction has been unreasonably delayed as a result.
11.2. The buyer has no right to dissolve the agreement in full or in part or suspend its obligations if it itself was already in default of compliance with its obligation.
11.3. If the agreement is dissolved, EPN's claims on the buyer are immediately due and payable. If EPN suspends compliance with the obligations, it retains its rights pursuant to law and the agreement.
11.4. EPN always reserves the right to demand damage compensation.
11.5. EPN has the right to suspend its obligations towards the buyer if and to the extent EPN is not able to comply with its obligations towards the buyer as the result of: a strike, defective or late supply to EPN by third parties, problems with transporters, fire, water damage, computer and/or electricity outages, accidents and/or other circumstances outside of EPN's control.
11.6. If a circumstance as referred to in clause 11.5 has lasted 3 months or longer, either EPN or the buyer can terminate the particular agreement.
CLAUSE 12 RETURN OF ITEMS PROVIDED
12.1. If, in performance of the agreement, EPN provided items to the buyer for the purposes of allowing the buyer to view these items, the buyer is obligated to return these items in full, in their original condition and free from defects within 14 days. If the buyer does not comply with this obligation, all costs arising as a result are at its expense.
12.2. If, for whatever reason, the buyer remains in default of complying with the obligation mentioned in 1., after a reminder demanding compliance, EPN has the right to recover from the buyer the damage and costs arising from this, including the costs of replacement and/or (at EPN's discretion) the recovery of the usual sale price of the particular items.
CLAUSE 13 TRANSFER OF RISK
13.1. The risk of loss of or damage to the products that are the subject of the agreement transfers to the buyer at the moment these are supplied to the buyer (see clause 5.1) or (if earlier) at the moment the items are put under the control of the buyer or third parties designated by the buyer.
13.2. In the event of complaints lodged on time, EPN has the right to (at its own discretion): (i) supply replacement items, (ii) repair the particular item, or (iii) credit the buyer the purchase price of the particular item. The buyer cannot lodge any different or farther-reaching claim against EPN than mentioned in this clause.
13.3. If and to the extent EPN is liable towards the buyer for claims going beyond what is cited in clause 13.2, EPN's liability is always limited to the invoice amount for the items because of which or in connection with which the damage arose.
13.4. EPN is never obligated to compensate the buyer for any indirect damage suffered by the buyer, such as but not limited to lost profit, costs, fines, third-party claims or other costs.
CLAUSE 14 APPLICABLE LAW
14.1. Dutch law applies to all agreements. The applicability of the Vienna Convention is hereby explicitly excluded.
14.2. All disputes arising from offers and agreements between EPN and the buyer, by whatever name these are called, will be subject to the decision of the competent subdistrict court in Helmond or, as the case may be, the District Court of 's-Hertogenbosch.
CLAUSE 15 AMENDMENT AND LOCATION OF THE TERMS AND CONDITIONS
15.1. These terms and conditions have been filed with the Chamber of Commerce.
The most recently filed version or the version that applied at the time the agreement was established applies.
ADDENDUM ON CLAUSE 10 – RETENTION OF TITLE / GERMAN CUSTOMERS
Verlängerter und erweiterter Eigentumsvorbehalt
Das Eigentum an den gelieferten Waren bleibt zur Sicherung aller Ansprüche vorbehalten, die uns aus der gegenwärtigen und künftigen Geschäftsverbindung bis zum Ausgleich aller Salden gegen den Abnehmer und seine Konzerngesellschaften zustehen. Unser Eigentum erstreckt sich auf die durch Verarbeitung der Vorbehaltsware entstehende neue Sache. Der Abnehmer stellt die neue Sache unter Ausschluss des eigenen Eigentumserwerbs für uns her und verwahrt sie für uns. Hieraus erwachsen ihm keine Ansprüche gegen uns.
Bei einer Verarbeitung unserer Vorbehaltsware mit Waren anderer Lieferanten, deren Eigentumsrechte sich ebenfalls an der neuen Sache fortsetzen, erwerben wir zusammen mit diesen Lieferanten – unter Ausschluss eines Miteigentumserwerbs des Abnehmers - Miteigentum an der neuen Sache, wobei unser Miteigentumsanteil dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu dem Gesamtrechnungswert aller mitverarbeiteten Vorbehaltswaren entspricht.
Der Abnehmer tritt bereits jetzt seine Forderungen aus der Veräußerung von Vorbehaltsware aus unseren gegenwärtigen und künftigen Warenlieferungen mit sämtlichen Nebenrechten im Umfang unseres Eigentumsanteils zur Sicherung an uns ab.
Bei Verarbeitung im Rahmen eines Werksvertrages wird die Werklohnforderung in Höhe des anteiligen Betrages unserer Rechnung für die mitverarbeitete Vorbehaltsware schon jetzt an uns abgetreten.
Solange der Abnehmer seinen Verpflichtungen aus der Geschäftsverbindung an uns ordnungsgemäß nachkommt, darf er über die in unserem Eigentum stehende Ware im ordentlichen Geschäftsgang verfügen und die an uns abgetretenen Forderungen selbst einziehen.
Bei Zahlungsverzug oder begründeten Zweifeln an der Zahlungsfähigkeit oder Kreditwürdigkeit des Abnehmers sind wir berechtigt, die abgetretenen Forderungen einzuziehen und die Vorbehaltsware zurückzunehmen.
Scheck-/Wechselzahlungen gelten erst nach Einlösung der Wechsel durch den Abnehmer als Erfüllung.
Hinsichtlich der Vereinbarung von Eigentumsvorbehaltsrechten gilt ausschließlich deutsches Recht.
