GENERAL CONDITIONS OF SALE, DELIVERY AND PAYMENT OF:
1.1. These conditions apply to all our offers, deliveries, execution of work, assignments given to us and, for that matter, all sales, delivery and payment agreements concluded by us. Any additions or changes shall be effective only if accepted by us in writing.
1.2. A reference by the Customer to its own general terms and conditions is expressly rejected by us, unless the contrary is confirmed by us in writing.
2.1. Our offers, price lists, stock lists, catalogs, cost estimates, schedules, technical data, illustrations, drawings, designs, samples and models, etc. provided by us always remain our property and may not, without our written permission, be reproduced in any way, either wholly or in part, or given to third parties for inspection or use, unless the contrary has been explicitly agreed; our principal shall return all such documents, items and objects to us immediately on our first request. With regard to the documents, images, drawings, designs and models, etc. provided by us and with regard to the ideas and solutions offered by us, all intellectual property rights, such as for example copyrights and patent rights, anywhere in the world, shall accrue exclusively to us, all unless explicitly agreed otherwise.
2.2. All our information and advice is based on the data and drawings provided at the time of application and is provided to the best of our knowledge, but can never be a reason for us to accept liability.
2.3. Our offers, price lists, stock lists, catalogs, cost estimates, schedules, technical data, illustrations, drawings, designs, samples and models, etc. provided by us are always without obligation, unless the contrary is explicitly stated. If in any way measures, weights, numbers, volumes, technical specifications and the like are given, these can only be considered approximate, even after our clients have accepted our offers, while we will always have the right to make minor changes in the construction or execution, without prior notice to the Buyer, which in our opinion will benefit the product. Deviations do not entitle the buyer to refuse receipt or payment of the goods or to receive any compensation from us. Agreed prices are binding, on the understanding that we are entitled to offset, by means of a surcharge on the price that we consider reasonable, any increases in our suppliers' prices and/or tariffs of import duties and/or other fiscal rights, freights, wages and social security charges, other costs and changes in the exchange rates for foreign currencies set by the Nederlandsche Bank, which are related to the import, production, processing, loading, dispatch, insurance, unloading or delivery, occurring after the conclusion of the agreement.
2.4. We are not bound by obvious counting or typing errors in the quotation, while we are entitled to charge for materials, parts and/or work not mentioned in the quotation which have nevertheless been delivered or performed by us.
2.5. All deliveries are ex works, unless otherwise agreed in writing. The goods are transported at the risk of the client, insofar as this risk is not covered by us, while we are free to choose the method of transport. If the Buyer requires transport other than that which we had in mind, we may charge the Buyer for the additional costs which we have to incur as a result.
2.6. Verbal undertakings are not binding on us unless they have been confirmed by us in writing.
3. CONCLUSION OF AGREEMENT
3.1. At all times, an agreement between the parties shall not be concluded until we have received an order from our client and this has been accepted by us in writing (by post or by e-mail). Further agreements, not mentioned in the order confirmation, are only binding if they have been confirmed by us in writing.
3.2. Unless the client objects to the order confirmation in writing within 24 hours, the date of conclusion of the agreement shall be the date of dispatch of the confirmation by us.
3.3. Unless otherwise agreed or indicated, all prices quoted in the order confirmation are without discount and exclusive of turnover tax or other duties or taxes.
3.4. Modification of orders. Until 48 hours after date of order confirmation it is possible to make changes to the ordered products, without incurring costs but only unless the ordered products are not already in production or have been sent to the carrier. These product changes must be notified in writing. After 48 hours it is no longer possible to make changes to the ordered product.
3.5. Right of withdrawal consumers only with online purchase. The consumer may terminate an agreement relating to the purchase of a product during a cooling off period of at least 14 days without giving any reason. The cooling off period commences on the day after the consumer, or a third party designated by the consumer in advance, which is not the carrier, has received the product. Products made to the consumer's specifications, which are not prefabricated and which are manufactured on the basis of an individual choice or decision by the consumer, or which are clearly intended for a specific person, are expressly excluded from the right of withdrawal. Thus the right of withdrawal does not apply to, among others, baths with whirlpool systems or taps installed on the bath rim, saunas, steam baths and steam cabins. The consumer will return the product or hand it over to (an authorised representative of) Cleopatra as soon as possible, but within 14 days of the day following the notification referred to in paragraph 1. This is not necessary if the entrepreneur has offered to collect the product himself. The consumer has in any case complied with the return period if he returns the product before the cooling-off period has expired. The consumer shall return the product with all delivered accessories, if reasonably possible in original condition and packaging, and in accordance with the reasonable and clear instructions provided by the entrepreneur. The risk and burden of proof for the correct and timely exercise of the right of withdrawal lies with the consumer. The consumer bears the direct costs of returning the product.
3.6. Cancellation of orders. Up to 48 hours after date of order confirmation, it is possible to make cancellations of ordered products without incurring costs, but only unless the products have not already been taken into production or transferred to the carrier within those 48 hours. These cancellations must be made in writing.
3.7. Return shipments. We will only accept returns to Cleopatra of products delivered by us following written notification; subsequently, you will receive a written notice stating whether the return has been approved and stating a return number. Return shipments not approved by us or return shipments that do not include our return number will be refused by us and returned at the expense and risk of the sender.
Unless explicitly agreed otherwise in writing, the products will, if necessary and at our sole discretion, be provided with a type of packaging determined by us in which the products are usually handled. If and insofar as the buyer considers another type of packaging desirable and such is agreed with us in writing, we are entitled to charge the buyer for the additional costs associated with the other type of packaging.
5.1. Times and terms by which work will be performed by us, or deliveries will be made by us, are always carefully specified by us. However, these are always without obligation for us and thus cannot be regarded as a deadline. Any delay in execution does not entitle the principal to dissolve the agreement, unless the delivery time has been exceeded by a large margin. Before invoking dissolution, the principal must give us notice of default in writing and allow us a reasonable period (i.e. at least five working days) in which to do so. The principal shall never be entitled to dissolution on account of late delivery by us if the latter is due to force majeure on our part. We cannot be held liable for any delay in execution or failure to execute. Delayed delivery shall not entitle the principal to compensation, unless explicitly agreed otherwise.
5.2. After the relevant products have left our factory or when we have notified the customer in writing that the products are ready for dispatch, they will be deemed to have been delivered, without prejudice to the provisions of Article 10 and regardless of any obligation on our part to comply with assembly and installation obligations. The place of delivery is therefore our factory. If delivery takes place in parts, the separate batches shall in themselves be considered delivered. If for the execution of the order/delivery certain data, drawings, material deliveries, etc. are necessary or certain formalities are required, the delivery period shall only commence at a later point in time, namely the time when all data, drawings, material deliveries, etc. are in our possession or the required formalities have been completed.
5.3. We are not liable for the disappearance of items delivered by us but not assembled, which are on the Buyer's premises or in the Buyer's house.
5.4. If, despite our notification that the goods are ready for delivery, the client does not take delivery of the goods or does not arrange for them to be stored, we will be entitled to arrange for storage either on our own premises or elsewhere and all costs relating to storage, insurance or removal will have to be paid by the client.
6.1. If we have undertaken to assemble or place or install the goods to be delivered by us, this will be done after our announcement to the Buyer by telephone or in writing. The Buyer warrants to us that he will have and/or will obtain and retain all necessary facilities, provisions, conditions and permits, including government permits, on time and in the proper manner, which are required for the assembly, installation and/or installation work to be carried out by us, and indemnifies us against any claims by third parties in this respect. The aforementioned facilities, etc. and other activities to be carried out in this context shall at all times be at the expense and risk of the Purchaser.
6.2. If, after our announcement, the Purchaser is unwilling or unable to allow the assembly or installation to take place, he shall inform us of this in writing within ten working days before the definitive date of the assembly or installation, in which case the Purchaser shall ensure that we still receive a new date on which we can allow the assembly or installation to take place. The time of delivery of the products to be assembled or installed will be assessed on the basis of Article 5.2 if the aforementioned first date is not met.
6.3. In the unlikely event that the Buyer is in default with regard to the obligations referred to under 6.2, we will be entitled to keep the purchased goods at the Buyer's disposal without further ado, to store and/or deliver the goods internally or externally for the benefit of the Buyer and to claim payment of the purchase price excluding the costs of assembly and/or installation, but to be increased by any costs associated with storage. The Purchaser must ensure that the work to be carried out by us in connection with the assembly or installation can be carried out, inter alia, by ensuring that the site on which or the space in which we are to carry out our work is available to us empty and cleared and that the sites are accessible to our vehicles.
6.4. We shall not be liable for any damage resulting from incorrectly performed work by third parties, even after we have carried out assembly or installation. We shall be entitled to charge the Purchaser for all costs, in particular additional costs, waiting times and additional transport, travel and personnel costs, if there is a delay in assembly or delivery due to the above-mentioned circumstances.
6.5. Insofar as assembly or installation work has to take place outside regular working hours and/or under exceptional circumstances, we are entitled to charge the Buyer for the additional costs involved.
6.6. We accept no liability whatsoever for the condition of the site or the goods on which or the space in which we have to place and/or assemble our goods, nor for the suitability of the electricity, gas, water, drainage or central heating pipes to which the goods to be delivered by us have to be connected. In particular, we are not liable for damage as a result of ground subsidence, change in the groundwater level, improper ventilation and damage and/or additional costs for making gas, water, drains, electrical cables and grounds or buildings suitable, without prejudice to the buyer's payment obligation.
6.7. We are not liable for nuisance and damage caused by, during or as a result of our work and the associated transport to persons, property and works of the buyer and third parties, unless such damage is due to intent or gross negligence of the management of Cleopatra.
6.8. The Buyer is obliged to indemnify us against claims by third parties for compensation for damages pursuant to this article and/or other articles of these conditions, which are not for our account.
Insofar as we have undertaken to deliver the goods placed by us or by third parties, the purchaser undertakes to cooperate in that delivery by being present at the delivery, either personally or represented by a third party who does not need to be in the possession of a special power of attorney, and to sign the delivery report, in proof of the fact that the work as carried out by us has been carried out correctly. If, despite our announcement of the delivery, the purchaser is not present at the delivery or does not cooperate or not cooperate properly, the assembled or installed item will be deemed to have been delivered and received in good condition and any claims from the purchaser in respect of any incorrect delivery will lapse.
8.1. For twenty four(24) months after delivery in the sense of article 5.2. we provide a guarantee for material and manufacturing defects. Our guarantee means that we will repair the faults at our expense or - at our exclusive discretion - take back the delivered goods in whole or in part and replace them with a new delivery. If we replace (parts of) products delivered to meet our warranty obligation, the replaced (parts of) products will become our property. All costs that go beyond the above-described obligation are at the expense of the client, such as transport costs, travel expenses and costs of disassembly and assembly. In the event that we, in execution of our guarantee obligations, carry out repair work on delivered products, the products in question will remain entirely at the risk of the principal.
8.2. If products are provided for processing, repair, etc., a guarantee shall only be given for the soundness of the execution of the instructed processing. For parts which we do not manufacture ourselves, we give no more guarantee than is given to us by our suppliers. If we have undertaken to assemble or install the products, our guarantee obligation in this regard shall only apply in the event of faulty assembly or installation. In such a case, the guarantee provided by us will take effect on the day on which we consider the assembly or installation to have been completed, on the understanding that, in that case, the guarantee period will in any event end fifteen (15) months after delivery within the meaning of Article 5.2.
8.3. The guarantee is given under the resolutive condition that the Buyer follows the operating instructions and further instructions and uses and maintains the delivered goods competently. The purchaser must give us the opportunity to investigate the correctness of his guarantee claims, failing which we shall have no guarantee obligation. We are never liable for damage caused by frost and leakage, nor for damage to glass, glass plates, lighting and steam cylinders, the latter in connection with calcification. Furthermore, the right to guarantee lapses if, with regard to the matters for which the guarantee is invoked, substances, liquids and/or gases are used (particularly scents or salt for water softening or disinfection liquids) which were not supplied by us, and if the purchaser on his own initiative during the guarantee period makes changes and/or repairs to the products supplied, or has them made.
8.4. Without prejudice to the provisions of Article 8, paragraph 1, the guarantee shall in no case extend beyond the free replacement or repair of defective parts and/or materials.
8.5. All circumstances which constitute force majeure, but also other circumstances which make it impossible or difficult for us to fulfil our obligations, such as fire, war and the like, release us, at our discretion, from our obligations. We shall be entitled to cancel any contract wholly or partly without being obliged to pay any compensation if the existing ratio of one or more foreign currencies to the Euro is changed or if government measures of whatever nature or nationality are taken of such a nature that the consequences thereof are, in our opinion, practically the same as if the Euro had been devalued.
9.1. Our liability is limited to fulfillment of the warranty obligation described in Article 8.
9.2. Subject to our guarantee obligation, further liability on our part is excluded, in particular liability for any damage to persons, property, buildings or gardens or business, consequential, environmental or transport damage or intangible damage, or damage as a result of liability towards third parties, unless the damage is due to gross negligence or intent on the part of Cleopatra's management.
9.3. If and insofar as we, despite what is stated in paragraphs 1 and 2 of this article, are nevertheless held liable by the competent court in any case, our liability towards the client on any account whatsoever per event (whereby a related series of events counts as one event), will in all cases be limited to the sum of the products in question excluding turnover tax.
9.4. For repair orders carried out by us, we shall never be liable for more than the amount of the repair costs. In all cases our liability will not exceed the amount of the part delivered by us which is damaged, or the amount for which we are insured, if we are insured for the event causing damage to the Buyer.
9.5. The client is obliged to indemnify us and compensate us for all costs, damages and interest which may be incurred by us as a direct consequence of claims by third parties against us in respect of incidents, acts or omissions during or in the context of the execution of the order, for which we are not liable to the client under these conditions.
10.1.If, during the execution of the activities, it appears that they are impossible to execute as a result of circumstances unknown to us, which could not have been known to us either, or as a result of force majeure, we have the right to demand that the order be changed in such a way that execution thereof becomes possible, except when execution will never be possible as a result of force majeure. The more or lesser costs resulting from the change in the assignment will be settled between the parties, while we will also be entitled to compensation for work already carried out but which has turned out to be unnecessary, if there is reason to do so. Settlement will in this case take place within four weeks of the moment at which it was established that the work would not be carried out any further.
10.2. Force majeure shall include all involuntary disturbances or hindrances, as a result of which the performance of the agreement becomes more costly and/or onerous, such as storm damage and other natural disasters, lockouts, summons or danger of war at home or in other countries, illness of irreplaceable employees, fire and other accidents in the company as well as all measures taken or issued by the authorities and in general all circumstances beyond our control or control.
10.3. If, due to force majeure, delivery should take place more than four (4) months after the agreed delivery date, we shall be entitled to pass on any additional costs to the client.
10.4. If, due to causes beyond our control, the work cannot take place without interruption or is delayed in any other way, we will be entitled to charge the client for the resulting additional costs on the basis of subsequent calculation. Any additional costs, including travel and accommodation costs and costs incurred because the work could not take place during normal working hours, as well as interest costs, will be borne by the client.
10.5. We shall be entitled to rescind any contract in whole or in part, without being obliged to pay any compensation, if the existing ratio of one or more foreign currencies to the Euro is changed or government measures of any nature or nationality are taken and these are of such a nature that the consequences thereof are, in our opinion, practically the same as if the Euro had been devalued.
11.1. Insofar as no other payment condition has been agreed in writing, payment of our invoices shall take place within thirty (30) days of the invoice date; Zaandam shall be regarded as the place of payment. Payment must be made in legal Dutch currency.
11.2. Set-off is never permitted for the principal. The claim for payment of the entire sum owed by the client on the basis of the agreement concluded with us shall in any case be immediately due and payable in the event of the non-punctual payment of an agreed instalment on the due date or if the client becomes bankrupt, or if any attachment is levied on the client's goods or claims or if the client goes into liquidation or is dissolved.
11.3. We reserve the right, if no payment has been obtained within thirty (30) days after the invoice has been sent, without the need for prior notice, to charge the statutory interest plus two (2) percent on an annual basis per month, to be calculated from the date of sending of the relevant invoice.
11.4. Payments shall be made to the accounts to be indicated by us. Payments made in any other way, including delivery to our employees, shall be valid only after written confirmation from us.
11.5. If we so wish, the Customer is obliged to provide sufficient security for the fulfilment of his obligations within a period to be determined by us to our satisfaction. We will then be entitled to suspend deliveries or the performance of services until the requested security has been provided. If our client fails to fulfil his obligations at the stipulated time, or fails to provide the required security in time, he shall be in default by the mere lapse of time, without any further notice of default being required or becoming necessary; we shall at all times be entitled to cancel the agreement, without prejudice to our right to compensation.
11.6. If the client remains in default of payment after a written summons, we are entitled to collect the amount owed immediately. We shall furthermore be entitled to increase the amount owed with collection, legal and other collection costs, including costs of legal assistance. The extrajudicial costs are hereby set at a minimum of fifteen (15%) percent of the amount, which is equal to the sum of the amount of the claim and the interest owed on it.
11.7. If the client fails to comply with any obligation, the agreement in question will be dissolved without judicial intervention on our part, without prejudice to our right to claim compensation for damage, loss of profit, interest and collection costs. In that case we will also be entitled to cancel any orders we may have with the client in question, or to suspend the execution thereof.
12. RETENTION OF TITLE
12.1. Ownership of the goods delivered by us shall not pass to the Buyer until he has fulfilled his obligations towards us, of whatever nature and with regard to the present transaction, in full.
12.2. In the event that the Buyer has not sold and delivered the goods to third parties for cash, the Buyer shall be obliged to stipulate a retention of title from its customers in accordance with the provisions of this article.
12.3. In the event that the activities delivered by us or performed have become part of another good due to mixing or accession, or the Buyer has fully met its payment obligations towards us with regard to the delivered goods, the Buyer is obliged to cooperate in the creation of securities, (for example) a (silent) pledge, in favour of ourselves, with the exclusion of also granting a deliberate right to third parties.
Any complaints regarding deliveries made by us or assignments carried out by us must be notified to us in writing within fourteen (14) days after the time of receipt of the goods or the completion of the assignment, respectively.
Complaints that are not notified to us in writing or later than the aforementioned deadline cannot be processed.
Complaints do not entitle to non-payment of invoice amounts.
Complaints regarding material and construction faults can only be processed if the goods and/or materials are still in the condition in which they were delivered.
No claims will be considered by us if it appears that within the claim period, other than in emergencies, third parties have carried out repairs without our prior knowledge.
14.1. Should one of these provisions, in whole or in part, be invalid, the remaining provisions shall remain in full force and effect. All our agreements are governed by Dutch law.
14.2. Disputes will be adjudicated exclusively by the competent court in Haarlem, insofar as another court is not competent pursuant to mandatory legal provisions.