Algemene Voorwaarden Bechtle direct B.V.
Article 1. Definitions
Bechtle direct: Bechtle direct B.V., with its registered office at Meerenakkerplein 27, Eindhoven (5652 BJ) and registered with the Dutch Chamber of Commerce for Eindhoven under number 17239940;
Services: all activities performed by Bechtle direct, where such activities are either subject to an Agreement or are otherwise performed by Bechtle direct by order of and/or on behalf of the Customer;
Quote: the written proposal drawn up by Bechtle direct relating to the Services and/or Products to be supplied;
Customer: any natural or legal entity that has placed an order with Bechtle direct for the supply of Services and/or Products;
Agreement (of order): any agreement entered into between Bechtle direct and the Customer in writing and/or electronically (via the website), any change or addition thereto, as well as any (legal) acts for the purpose of executing the agreement and any (legal) acts required to enter into the agreement;
Order: the order placed by the Customer with Bechtle direct for the supply of Services or supply of Products;
Parties: Bechtle direct and the Customer jointly;
Products: any products supplied by Bechtle direct to the Customer;
Conditions: these General Terms and Conditions;
Website: the website www.bechtle.nl.
Article 2. Applicability
- The Conditions shall form an integral part of all Quotes and Agreements and are applicable for all other (legal) acts of Bechtle direct.
- Unless agreed otherwise in writing, the general or specific terms and conditions or provisions of the Customer are expressly rejected by Bechtle direct.
- If the Conditions and the Agreement contain contradictory clauses, the relevant provisions of the Agreement shall prevail.
- If any part of the Conditions becomes null and void or is annulled, the remaining provisions of the Conditions shall remain fully applicable and the Parties shall endeavour to mutually agree a replacement provision that is applicable and corresponds to the original intentions of the Parties as closely as possible.
- Changes may only be made to the Agreement in a legally valid way, if such changes are made in writing and signed by the Parties.
- Bechtle direct reserves the right to change the Conditions at any time, as long as the Agreement is in force, by notifying the Customer in writing and/or electronically. The change shall take effect thirty days after the notification. Until the change has taken effect, the Customer has the option to object to the change. In response to an objection, Bechtle direct may choose not to apply the change to the Customer. If Bechtle direct does not choose to do so, the Customer may terminate the Agreement until such time as the change takes effect.
Article 3. Offers
- Promises made on the website and in offers and/or catalogues, brochures, price lists and Offers shall not serve to bind Bechtle direct and shall only be applicable as an invitation to request a Product or Service.
- An Agreement is entered into once the request has been accepted or confirmed by Bechtle direct in writing and/or by e-mail.
- Bechtle direct reserves the right to reject Orders without giving reasons for doing so, or to only supply subject to cash on delivery.
- The Agreement, including the Conditions, shall set out the rights and obligations of the Parties in full, and shall replace all previous written and verbal agreements, declarations, statements and actions of the Parties.
Article 4. Prices
- All prices listed by Bechtle direct are in euros and are exclusive of value-added tax (VAT) and other officially imposed levies and charges, travel and accommodation costs, telecommunication costs as well as courier, postage, material and transport costs, unless explicitly stipulated otherwise in the Agreement.
- Bechtle direct is entitled to pass onto the Customer any change in the factors affecting Bechtle direct's prices, such as purchase prices, exchange rates, import and export duties, insurance fees, freight fees, other taxes or charges and increases in the price index figure set by the Netherlands Bureau for Economic Policy Analysis (CPB).
- All prices stated in catalogues and on the Website are subject to price revisions.
Article 5. Delivery of Products and Services
- 1. Unless otherwise agreed, the Products and Services shall be delivered to the Customer's (business) address in the Netherlands.
- Agreed or specified delivery periods shall never be considered as firm deadlines. If the specified delivery periods are exceeded, the Customer shall not be entitled to cancel the order or refuse to accept receipt or payment of the ordered Products or Services, nor shall this oblige Bechtle direct to pay the Customer any compensation. If delivery does not take place on time, Bechtle direct shall be sent notice of default in writing.
- The delivery period shall commence on whichever of the following dates is the latest:
a) the day on which the Agreement is entered into;
b) the day on which Bechtle direct receives whatever is required from the Customer under the Agreement and/or Conditions, whether or not as an advance payment. Bechtle direct is entitled to supply and invoice for the ordered Products in partial consignments.Bechtle direct is gerechtigd bestelde Producten in deelzendingen te leveren en te factureren.
- Delivery shall be effected by Bechtle direct or (at the discretion of Bechtle direct) directly by the supplier. Unless otherwise agreed in writing, the Products shall be delivered “ex warehouse" or "ex supplier's warehouse”, in which case the Products shall be considered as having been delivered by Bechtle direct and shall be accepted by the Customer as soon as the Products are made available to the Customer and/or as soon as the Products are loaded into or onto the means of transportation.
- Unless otherwise agreed in writing, transport shall take place at the cost and risk of the Customer.
- If the Customer refuses to accept the Products or fails to provide the information or instructions required for the delivery, the Products shall be stored at the cost and risk of the Customer. The Customer shall then be obliged to pay any additional associated costs.
- If the Customer has not collected the Products within three months and at its expense, this shall not affect the Customer's obligation to pay Bechtle direct's invoice. After three months, Bechtle direct shall no longer be obliged to store the product for the Customer and to keep it available, regardless of whether the original invoice has been paid or not.
Article 6. Cancellation
- If the Customer cancels the Order and/or refuses to accept the Products or Services for reasons beyond the scope of risk covered by Bechtle direct, the Customer shall be obliged to accept the Products or Services already purchased by Bechtle direct against payment.
- Notwithstanding the provisions of the above paragraph, Bechtle direct reserves all rights to demand full compliance with the Agreement and/or full compensation.
Article 7. Returns and complaints
- Returns of delivered Products by the Customer shall only be permitted with Bechtle direct's express written consent.
- In any event, returns shall only be possible within a period of three days from delivery. Bechtle direct's consent for items to be returned shall not under any circumstances imply acceptance of liability.
- Bechtle direct shall only accept the returned items if and insofar as they are delivered to the address specified by Bechtle direct in their original packaging and in the condition in which Bechtle direct delivered the Products to the Customer.
- The following shall be excluded from being returned: special offers, individual configurations, software for which the seal has been broken, projection equipment, racks/safes and opened ink cartridges, toner cartridges, granted software licences and any other Products which by their nature cannot be returned.
- Complaints relating to the amount of the invoices sent by Bechtle direct shall be notified in writing within a period of eight days of the invoice date, after which period they shall be considered as no longer valid.
- Complaints relating to externally visible defects in the delivered Products shall be made in writing within a period of five days of delivery of the Products, on expiry of which period Bechtle direct shall not be held liable for any form of compensation or re-delivery.
- Complaints relating to defects that are not externally visible shall be made in writing within a period of eight days of discovery and up to thirty days after delivery of the Products, after which period they shall be considered as no longer valid. No complaints may be made for defects relating to the functionality of software.
Article 8. Warranties
- For Services and/or Products delivered by Bechtle direct but which it has acquired through third parties, the provisions set out in Article 7 shall only apply insofar as and to the extent that the third party has issued a warranty or warranties to Bechtle direct with respect to these Services and/or Products.
- Any warranty on a Product shall in any event by restricted to the warranty issued by the manufacturer or supplier of the Product. Bechtle direct shall not issue any additional warranty on the Products. Please refer to the manufacturer with respect to the warranty period.
- In any event, depending on the warranty offered by the manufacturer, Bechtle direct is free to choose whether to replace the defective items, or repair them where possible, or take them back against crediting the Customer.
- Claims by the Customer under the warranty shall only be applicable on presentation of the original invoice and shall not affect its payment obligations in respect of Bechtle direct.
Article 9. Retention of ownership
- Bechtle direct shall retain ownership of all Products that it delivers or has yet to deliver to the Customer until the purchase price is paid in full for all these Products.
- The retained ownership shall also be applicable with respect to any other claim(s), which may or may not be related and which Bechtle direct may receive in respect of the Customer due to the failure on the part of the Customer to fulfil one or more of its obligations in respect of Bechtle direct.
- As long as the ownership of the delivered Products is not transferred to the Customer, the Customer may not pledge the Products or grant a third party any other right to the Products other than rights within the scope of its normal business operations, whereby the Customer – in the event of sale on credit – is obliged to insist on retention of ownership from its own customers based on the provisions of this article, such that its customers are cognisant of the retention of ownership established by Bechtle direct on the basis of this article.
- The Customer undertakes not to assign or pledge to third parties claims that it receives against its customers, and also undertakes to pledge specific claims to Bechtle direct, where Bechtle direct has expressed the desire for this to be so, in the manner specified in section 3:239 of the Dutch Civil Code as additional security for claims against the Customer on whatever grounds.
- If Bechtle direct has good reason to suspect that the Customer will fail to fulfil its (payment) obligations, Bechtle direct shall be entitled to take back the Products delivered under retention of ownership. To this end, the Customer shall provide Bechtle direct with unrestricted access to its premises and/or buildings, so that Bechtle direct is able to exercise its rights. After the items have been taken back, the Customer shall be credited with the market value, which shall not exceed the original purchase price less the costs incurred from taking back the items.
- Any hardware, software and other materials to be used by Bechtle direct in the course of providing its services shall remain the property of Bechtle direct, even if the Customer pays a fee for them to be developed by Bechtle direct.
Article 10. Payment
- Unless otherwise agreed in writing and notwithstanding the provisions of the following paragraph, payments shall be made to Bechtle direct within thirty days of the invoice date, which shall be applicable as a firm deadline. In any event, Bechtle direct shall be entitled to demand (partial) advance payment and/or payment in instalments from the Customer
- In any event, Bechtle direct shall be entitled to submit invoices electronically. By accepting this Agreement, the Customer expressly accepts this method of invoicing.
- Unless expressly agreed otherwise, all payments from the Customer shall be used primarily to reduce the costs, then to reduce the interest owed and finally to reduce the principal sum of any unpaid invoices.
- The Customer is not permitted to offset or suspend its payment obligations.
- Before supplying its Services and/or Products or continuing with the supply thereof, Bechtle direct shall always be entitled to demand what it deems to be an adequate advance payment or security for honouring payment obligations from the Customer, whereby Bechtle direct shall be entitled to suspend further deliveries if the Customer fails to comply with such a demand, even if a fixed delivery date is agreed, without prejudice to Bechtle direct's right to demand compensation for late or non-fulfilment of the Agreement.
- If the Customer does not pay within the agreed period, it shall be held in default ipso jure and Bechtle direct shall be entitled, without any notice of default being required, to charge the Customer interest as of the due date of the unpaid invoice or invoices, amounting to 2% per month, unless the statutory rate is higher, in which case the statutory rate shall apply.
- If the Customer fails to pay the claim, the claim can be passed on, in which case the Customer, in addition to the total amount due, shall also be obliged to pay the extrajudicial collection costs, in accordance with the Decree on compensation for extrajudicial collection costs (or any regulation to follow up on this). If collection outside the courts does not lead to a result, the Customer shall also be obliged to pay the full, actual legal costs of legal proceedings.
- If the Customer is in default, all claims from Bechtle direct outstanding on the Customer shall become immediately due and payable as of that time.
- All outstanding claims on the Customer shall be immediately due and payable if:
a) the Customer is declared bankrupt, files a request for suspension of payments or is admitted into the statutory debt rescheduling arrangement, or the total seizure of the Customer's assets is ordered;
b) the Customer dies or is placed under guardianship;
c) the Customer fails to pay an invoice amount or part thereof within the period set for such payment;
d) the Customer ceases or transfers its business or a significant part thereof.
Article 11. Force majeure
- If, due to an act of force majeure, Bechtle direct is impeded from performing the agreed works in full or in part or is unable to deliver the Products (on time), it shall be entitled to suspend execution of the Agreement without judicial intervention or deem the Agreement to be fully or partially dissolved, at its discretion, without being liable for any compensation or warranty.
- In this context, force majeure is understood to mean, in addition to what is understood in the law and case law in this respect, all external causes, foreseen or unforeseen, over which Bechtle direct has no influence, but as a result of which Bechtle direct is unable to fulfil its obligations. Force majeure shall herewith, in particular, be understood as strike, fire, machinery breakdown and other interruptions of operations (either at Bechtle direct or at its suppliers of Products and Services), transport disruptions and other events beyond its control, such as war, blockades, riots, acts of terrorism, epidemics, devaluation, flooding and storms, as well as a sudden increase in import duties and excise duties and/or taxes, delay or failure to deliver by suppliers, failure to obtain the necessary permits and other government measures.
- Insofar as Bechtle direct has already partially fulfilled its obligation under the Agreement or shall be able to fulfil it at the time of the commencement of the force majeure and the part already fulfilled or to be fulfilled has independent value, Bechtle direct shall be entitled to invoice the part already fulfilled or to be fulfilled separately. The Customer shall be obliged to pay this invoice.
Article 12. Liability
- Bechtle direct shall perform its Services to the best of its ability, exercising the due care that can be expected of Bechtle direct.
- Except in the case of fulfilling any warranty obligations, Bechtle direct shall not be liable for any damage, arising from any cause whatsoever, unless it is attributable to intentional omission or deliberate recklessness that cannot be legally excluded. This concerns direct and indirect damage, consequential loss and damage arising from the Customer's liability in respect of third parties. In the case of intentional omission or deliberate recklessness, the burden of proof lies with the Customer.
- Bechtle direct shall not be liable for direct or indirect damage, consequential loss and damage arising from the Customer's liability in respect of third parties caused by the personnel of Bechtle direct or other persons engaged to perform any of the works under the relevant agreement, who are not responsible for managing the performance of such works. This exclusion also covers intentional omission and deliberate recklessness.
- Bechtle direct shall not be liable for any damage caused by acts or omissions of third parties that are engaged by the Customer in the process of executing the Agreement.
- Bechtle direct shall not be liable for damage, loss or destruction of items, materials or data that is made available to Bechtle direct for, by or on behalf of the Customer.
- Unless otherwise agreed in writing, any advice provided by Bechtle direct shall be without obligation. Bechtle direct shall provide such advice to the best of its knowledge and ability. Bechtle direct shall not be liable for any form of damage arising from the advice given.
- Notwithstanding the provisions of Article 12, liability shall in all cases – irrespective of the legal basis on which the claim for compensation is based – be restricted to the maximum amount of the price stipulated for this Agreement (excl. VAT) or, at Bechtle direct's discretion, to the maximum amount to be paid by Bechtle direct's liability insurance.
- The liability of Bechtle direct for damage arising from death or physical injury shall not exceed a total of fifty thousand euros.
- Condition for the inception of any right to compensation shall always be that the Customer notifies Bechtle direct in writing as soon as possible after such inception. Any claim to compensation against Bechtle direct shall end by the mere lapse of twelve months after the establishment of the claim.
Article 13. Intellectual property rights
- Unless expressly agreed otherwise in writing, copyright and any other (related) rights of intellectual and industrial property with respect to the Services and/or Products supplied by Bechtle direct, such as copyright, rights to trademarks, patent rights, etc. shall exclusively remain vested in Bechtle direct and/or its suppliers.
- If a software licence is sold or supplied by Bechtle direct to the Customer, the Customer – unless otherwise agreed in writing – shall be obliged to conclude the corresponding licence agreement directly with the licensor. Bechtle direct is never a party to such a licence agreement. The Customer shall indemnify Bechtle direct against any damage that may possibly arise from non-compliance with such a licence agreement on the part of the Customer.
- If the Customer provides Bechtle direct with data and material in which the copyright, portrait rights or other (related) rights of intellectual and industrial property of third parties are vested, the Customer shall indemnify Bechtle direct against any possible claims from third parties.
- Estimates, plans, catalogues, quotes, software and other materials attesting to the know-how of Bechtle direct that are provided to the Customer within the scope of the Quote or in the course of execution of the Agreement, shall remain the property of Bechtle direct. The Customer shall keep these items and the data contained therein secret, in particular know-how relating to the services to be provided, and shall not disclose such information to third parties. Results arising from Agreements that are provided to the Customer shall be strictly for the Customer's own use, unless otherwise agreed between the Parties.
Article 14. Duration and termination
- If the Service is a continuing performance agreement, the Agreement shall be considered as entered into for an indefinite period, unless expressly agreed otherwise.
- The Agreement shall end by means of:
a) completion of the Order by Bechtle direct;
b) termination of the Agreement;
- If the Parties have entered into a continuing performance agreement, the Agreement may only be terminated by both Parties by registered letter. Unless otherwise agreed in writing, the notice period in such cases shall be at least six months.
- Notwithstanding its other rights under the law, Bechtle direct shall be entitled to terminate the Agreement with immediate effect without notice of default, if:
a) deferment of payment or suspension is petitioned or granted to the Customer;
b) the bankruptcy of the Customer is petitioned or declared;
c) the (company of the) Customer is liquidated or terminated;
d) the Customer does not pay within the agreed payment period (as specified in Article 10 of these Conditions).
- If the Customer has already received supplies and services in execution of the Agreement at the time at which the Agreement is terminated, such supplies and services and the associated payment obligation shall not be subject to cancellation. Amounts invoiced by Bechtle direct in connection with the supplies and services it has already performed in execution of the agreement prior to the termination thereof shall remain payable with due observance of the provisions of the above sentence and shall become immediately due and payable upon termination.
Article 15. Assignment of rights and obligations
- Bechtle direct is permitted to assign the rights and obligations described in the Agreement to third parties. To this end, Bechtle direct shall notify the Customer thereof in advance and the Customer shall be entitled to terminate the Agreement by the date on which the assignment is to take place. Bechtle direct shall not be liable for any compensation. The Customer may only assign rights and obligations under the Agreement to third parties with the written consent of Bechtle direct.
- Unless expressly agreed otherwise with Bechtle direct, all Products or Services ordered by the Customer are intended exclusively for the Customer's own internal use and not for resale. If the Customer wishes to sell a product or service to another party on an incidental basis, the Customer must obtain permission from Bechtle direct. Bechtle direct shall not refuse the requested permission on unreasonable grounds, but may require that any discount offered to the Customer be repaid by the Customer.
Article 16. Registration and identification
- The Customer shall treat any account details (such as user names and passwords) provided by Bechtle direct within the scope of registration as strictly confidential. The Customer is not permitted to log third parties onto the Website (or enable them to log on) and enable them to place orders using the Customer's account details.
- Bechtle direct is not obliged to ascertain the identity of the Customer. Bechtle direct shall not be liable if unauthorised parties use the Customer's account details to place orders or otherwise enter into agreements with Bechtle direct via the Website.
- If the Customer suspects that its account details have been compromised and/or if a third party has or has gained unauthorised access, the Customer is obliged to notify Bechtle direct thereof immediately. In such a case, Bechtle direct is authorised to take appropriate measures.
Article 17. Privacy and personal data
- If the Customer purchases Services or Products from Bechtle direct whereby personal data is processed as part of the Service or Product, the Customer shall be responsible for making the necessary arrangements with the manufacturer or supplier of the Service or Product regarding the processing and protection of personal data. The Customer shall indemnify Bechtle direct against claims and damages arising out of or in connection with any failure to comply with the applicable privacy laws committed by the Customer or any supplier or manufacturer.
Article 18. Applicable law, competent court
- The Agreement and Conditions are governed by Dutch law.
- The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- Any disputes arising further to the Agreement or Conditions shall in the first instance be referred to the competent court in the district where Bechtle direct has its registered office.
Status: 31 January 2019