Términos y condiciones generales
These general terms and conditions apply to all offers and purchase agreements whereby Comfoor b.v. with its registered office in Doesburg acts as the seller of goods or the supplier of services, hereafter referred to as ‘Seller’. Any departures from these general terms and conditions can only be agreed in writing. The general terms and conditions of the Buyer, however named, do not apply. The term ‘Buyer’ in these general terms and conditions includes every client who issues an order to the Seller to deliver goods, to produce goods or to render technical or administrative services.
All verbal and written offers from the Seller are without obligation unless expressly stated to the contrary in the offer. The data included in the offers, price lists and other documentation of the Seller such as images, drawings, calculations, sizes and weight statements are not binding for the Seller. Minor deviations in colour or finishing permitted in the trade or which are technically unavoidable, are reserved.
The agreement with the Buyer is formed when the Seller, within eight days after having received the order to deliver, has confirmed this in writing by post or by fax or if the Seller has received the signed offer it had issued, back from the Buyer. For orders in respect of which by their nature and size a written offer or order confirmation is not customary, the agreement is deemed to have been formed on the day the order has been received and accepted by the Seller via post, fax or telephone for immediate performance. Verbal promises by and agreements with subordinates do not bind the Seller until after and to the extent they are confirmed in writing by the Seller.
The prices apply to delivery ex warehouse of the Seller, excluding turnover tax, unless otherwise agreed in writing. If three months after the date of the agreement, one or more cost factors experience a rise, even if this is the result of foreseeable circumstances, the Seller is entitled to raise the price accordingly. Packaging is included in the price. The manner of packaging is determined by the Seller.
Delivery is ex warehouse of the Seller. If delivery ex house of the Buyer has been agreed with the Seller, the transport is for the account of the Buyer but at the risk of the Seller. The transport costs shall be charged separately on the invoice to the Buyer.
6. Delivery terms
The delivery terms are stated by approximation only and are therefore not binding. The Seller shall however do all that which is reasonably possible to realise the delivery on or within the stated term. The delivery term commences as soon as and after the Seller has accepted the order and has received the full details and all that the Buyer has to pay in advance in accordance with the agreement. The Seller is at all times entitled to deliver in consignments. As soon as the Seller has become aware of facts and/or circumstances which make the realisation of the delivery on or within the agreed term impossible, the Seller shall notify the Buyer of such immediately stating a new term. If the impediment to the performance continues after the new term stated by the Seller, the Buyer is entitled to issue the Seller with a notice of default, and after expiry of that term, if the non-performance continues, the Buyer is entitled to terminate the agreement, provided the Buyer does so immediately, without the Seller or the Buyer being liable for any compensation.
7. Risk and ownership
As soon as the ordered goods have been delivered by the Seller, they are at the risk of the Buyer. If the Buyer does not take receipt of the goods, the Seller shall store them at the risk and for the account of the Buyer on notification to the Buyer, without prejudice to the right of the Seller to proceed to terminate the agreement whilst retaining its right to compensation. The ownership of the delivered goods only transfers from the Seller to the Buyer after the Buyer has paid the purchase price and all that it has to pay in accordance with the agreement as well as pursuant to any claim for specific performance of the agreement, to the Seller.
The payment of the Seller's invoices shall be within 30 days from the invoice date without any deduction or set off, at the offices of the Seller or into an account to be indicated by the Seller. In the event of payment by instalments, the Seller is entitled to invoice every consignment to the Buyer separately and demand payment for it. Cash on delivery is reserved. On refusal of cash on delivery, the Buyer is obliged to pay all the costs arising from this for the Seller if the Seller has notified the Buyer of the cash on delivery in advance. If the creditworthiness of the Buyer reasonably gives rise to this, the Seller can at all times demand that further security be provided, failing which the Seller is entitled to suspend the performance of the agreement.
The payments made by the Buyer serve firstly to pay all interest and cost due and subsequently to pay the oldest outstanding invoices even if the Buyer indicates that the payment relates to a later invoice. If the Buyer does not pay within the agreed term, it is deemed to be in default by operation of law, without any further notice of default being required and the Seller is entitled to, from the due date, charge interest which is equal to the statutory interest plus 2% for the duration of the default and the judicial and extra judicial costs relating to the collection of the claim. The extra judicial costs are determined in accordance with the collection rates of the Netherlands Bar Association with a minimum of € 125. If the Seller demonstrates to have incurred higher costs which were reasonably necessary, these are eligible for payment.
9. Complaints and guarantee
Complaints due to externally visible defects or shortcomings must be made in writing within 10 days of delivery at the latest, whereby failing to observe this term, any claim towards the Seller in respect of the defects or shortcomings lapses. The following conditions apply in respect of the guarantee:
a. delivery of goods manufactured by Comfoor b.v.: six months guarantee on material and manufacturing faults and on fit, fracture/damage and nipple. An exception is made here for the custom- made Comfoor hearing protection which has a guarantee of two years for material and manufacturing faults, fit and muffling. Changes in the design or choice of material do not fall under this guarantee.
b. delivery of goods not manufactured by Comfoor b.v.: the guarantee which the Seller itself has received from the manufacturer.
c. Comfoor b.v. reserves the right to reject imprints of insufficient quality. Should one nevertheless decide to create a Custom-Fit Comfoor hearing aid from this, this is not covered by any guarantee.
Complaints in respect of defects as referred to in article 9(a), (b) and (c) must be made within 10 days after the Buyer has discovered the defect or could have reasonably discovered it, but within the guarantee term, which commences with the invoice date, on exceeding of this term any liability of the Seller in respect of the defects or shortcomings referred to, lapses.
If the Seller is liable for the defect covered by the guarantee, it can repair the relevant good (or have this done), replace it or reimburse the purchase price at its discretion.
Any liability for loss as a result of the materials delivered by the Seller, is limited to the amount paid out by the Seller's insurer in the specific case also in the event of an intentional act and gross negligence.
11. Applicable law and disputes
This agreement and all other legal relationships between the Buyer and the Seller are exclusively governed by Dutch law to the exclusion of the Vienna Sales Convention. All disputes between the parties shall, to the exclusion of any other court, be settled by the court in the district of Zutphen.