Terms and Conditions
ARTICLE 1. | DEFINITIONS
1. ECC: Europe Cycle Company BV, the user of these delivery conditions, based in Beverwijk.
2. Buyer: the natural or legal person, at least acting in the course of a profession or business, with whom ECC has concluded or intends to conclude an agreement.
3. Agreement: any agreement entered into between the Buyer and ECC under which ECC has undertaken towards the Buyer to supply products.
4. Products: all items to be supplied under the contract by or on behalf of ECC, including (electric) bicycles, parts thereof and/or accessories.
5. Written: both traditional written communication and communication by e-mail.
ARTICLE 2. | GENERAL PROVISIONS
1. These delivery terms and conditions apply to any offer by ECC and any agreement concluded between the purchaser and ECC.
2. These Delivery Terms and Conditions also apply to agreements for the performance of which, by ECC, third parties are involved.
3. The applicability of Buyer's purchasing or other terms and conditions is expressly rejected.
4. Deviations from these delivery conditions shall only apply if such deviations have been expressly agreed between the parties in writing.
5. ECC shall always be entitled to assign the performance of the contract, in whole or in part, to third parties, without prejudice to its obligation to properly fulfill the contract.
6. Destruction or nullity of one or more of the present provisions shall not affect the validity of the remaining clauses. In such a case, the parties are obliged to enter into mutual consultation in order to reach a replacement arrangement in respect of the affected clause. The purpose and purport of the original provision will be taken into account as far as possible.
ARTICLE 3. | OFFER AND FORMATION OF THE AGREEMENT
1. Any offer made by ECC is without obligation. ECC is never obliged to accept an order or assignment.
2. Obvious errors or mistakes in the offer shall not bind ECC.
3. The buyer cannot derive any rights from an offer based on incorrect or incomplete information provided by the buyer.
4. An offer does not automatically apply to follow-up agreements.
5. Samples and models shown and/or provided, for example in brochures, on websites or in promotional material, are shown as accurately as possible, however, they are only indicative. The buyer cannot derive any rights from them.
6. The agreement is established by offer and acceptance. If the acceptance of the purchaser deviates from the offer of ECC, the contract will not be established in accordance with this deviating acceptance, unless ECC indicates otherwise. Verbal agreements shall not bind ECC until ECC has confirmed the order or assignment in writing.
7. A composite quotation shall never oblige ECC to fulfill part of the offer at a corresponding part of the quoted price.
ARTICLE 4. | TERMS
1. ECC shall make every effort to meet the execution and/or delivery deadlines agreed between the parties in a timely manner. However, all deadlines stated by ECC are to be considered as indicative, non-fatal deadlines only. The Purchaser shall not claim the rights to which it is entitled under the law until it has given ECC written notice of default in which it gives ECC a reasonable period of time to still perform the contract and performance has still not been achieved after the latter period.
2. If ECC depends on data to be provided by the Purchaser for the performance of the contract, delivery periods shall not begin until after ECC has received this data.
ARTICLE 5. | WORK RELATED TO PRODUCTS TO BE MANUFACTURED ACCORDING TO THE BUYER'S SPECIFICATIONS
1. This article applies to orders where ECC has undertaken to manufacture the products according to the Buyer's specifications, such as attaching labels to the bicycles to be delivered.
2. For the performance of the work referred to in this article, ECC shall be entitled to engage third parties. Article 7:404 of the Civil Code shall not apply to the contract.
3. ECC undertakes to perform the agreed work referred to in paragraph 1 (or have it performed) to the best of its knowledge and ability, however, in doing so ECC is dependent on the specifications or items to be provided by or on behalf of the Purchaser, such as labels. Minor deviations between what has been agreed and what is actually delivered may occur and must be tolerated by the purchaser, without the purchaser being entitled to compensation for damage or any other disadvantage.
4. The purchaser guarantees to provide ECC with all items and information which are reasonably important for the design and execution of the agreement in a timely manner. Furthermore, the buyer guarantees the correctness and soundness of items which are made available by or on behalf of him for the performance of the contract.
5. If performance of the agreement is carried out according to incorrect or incomplete information or items provided by the buyer, the buyer shall remain liable for the full agreed price and this shall not constitute a shortcoming on the part of ECC.
6. If, during the performance of the work referred to in this article, it appears that for a proper completion thereof it is necessary to modify or supplement the agreement, the parties will timely and in mutual consultation adjust the agreement. If the nature, scope or content of the agreement is changed qualitatively and/or quantitatively, this may affect what was originally agreed. As a result, the price originally agreed upon may be increased or decreased. ECC will give as much advance notice as possible.
7. In case of additions or changes to what has been agreed upon as desired by the Buyer, the additional costs related to this shall be borne by the Buyer. ECC will inform the buyer in a timely manner about the necessity to pass on the costs referred to here, unless the buyer should have understood this necessity by itself.
8. An amendment to the contract may change the originally specified period of execution and delivery. The buyer accepts the possibility of amendment of the agreement, including the change in price and term of execution. If the agreement is amended or supplemented, ECC shall only be entitled to carry it out after the purchaser has agreed to the adjusted price and other conditions, including the time to be determined when the work will be carried out. Failure to perform the modified agreement or failure to perform it immediately also does not constitute a shortcoming on the part of ECC and does not provide grounds for the Buyer to dissolve the agreement.
9. If after the conclusion of the contract cost-price-increasing circumstances arise or come to light which can be attributed to the purchaser on the basis of incorrect information or items provided by him, the additional costs associated with this shall be for his account, unless ECC should have discovered the incorrectness of the information provided by
the purchaser before the price was determined. ECC will inform the purchaser in a timely manner of the need to pass on the costs referred to here.
10. Without being in default, ECC may refuse a request to amend the contract if fulfillment of the amended contract cannot reasonably be required of it.
11. Agreements for additional work shall, subject to the provisions of the rest of this article, take place in consultation and shall be recorded in writing at the request of ECC.
12. Also the agreement relating to the performance of work as referred to in this article cannot be dissolved after its conclusion. If the purchaser nevertheless terminates the contract prematurely, ECC shall be entitled to claim the full agreed price.
ARTICLE 6. | DELIVERY
1. If delivery of the products has been agreed upon, ECC shall, unless expressly agreed otherwise, determine the method of shipment and packaging of the products.
2. If delivery is agreed upon, the products will be delivered to the delivery address provided by the Buyer for that purpose, in the absence of which the billing address will be considered the delivery address.
3. The buyer is obliged to take delivery of the purchased products at the time they are available to him or are delivered to him. If the purchaser refuses to take delivery for any reason or is negligent in providing information or instructions necessary for delivery, the products will be stored at the expense and risk of the purchaser after ECC has notified him. In this case, the Buyer shall owe a reasonable price for storage of the products, in addition to the purchase price.
4. The risk of loss and damage to the products shall pass to the Buyer at the time the products are actually placed in the possession of the Buyer or a third party designated by the Buyer, unless expressly agreed otherwise.
5. ECC is permitted to deliver orders in parts. If orders are delivered in parts, ECC is entitled to invoice each part separately.
ARTICLE 7. | PACKAGING PALLET
1. Packaging pallet remains the property of ECC. The buyer is not entitled to use the packing pallet for purposes for which the packing pallet is not intended.
2. ECC is authorized to charge the buyer for the use of packing pallets.
ARTICLE 8. | RESALE; RECOMMENDED PRICE AND PRESENTATION
1. The buyer is obliged not to offer the delivered products intended for resale for a lower amount than the sales prices announced by ECC.
2. If the Buyer fails to fulfill its obligation referred to in paragraph 1, ECC shall be entitled to refuse future orders from the Buyer.
3. The purchaser is obliged to resell the delivered products in its own name, at its own risk and expense. The Buyer is never entitled to represent ECC as an agent or otherwise.
4. The products delivered by ECC may only be resold by the other party in the original packaging supplied by ECC or its supplier. The purchaser shall not make any changes to the packaging and shall prevent damage to it.
5. Purchaser shall prominently and consistently present the brands carried by ECC, as well as the products supplied, in accordance with the appearance of the brands carried. Advertisements and other communications with end customers should be consistent with the appearance of the brands ECC carries. Products should be presented in such a way as not to detract from the nature of the brands of the products represented by ECC.
6. At ECC's request, any presentation of the products supplied must be submitted to ECC for approval prior to publication, if and to the extent that graphic or text-related elements in the presentation do not originate directly from ECC. ECC shall not unreasonably withhold such approval.
ARTICLE 9. | COMPLAINTS
1. Upon delivery of the products, the Buyer is obliged to check immediately whether the nature and quantity of the products correspond to the agreement.
2. If, in the opinion of the buyer, the delivered product does not comply with the agreement, he must immediately notify ECC.
3. Complaints regarding non-visible defects must be reported in writing to ECC within two days after the purchaser was aware of these defects or should reasonably have been aware of these defects.
4. If the purchaser fails to make the notification referred to in paragraph 2 or does not complain within the period referred to in paragraph 3, no obligation shall arise for ECC from such complaint by the purchaser.
5. The purchaser must give ECC the opportunity to investigate a complaint submitted by it and to assist ECC in providing all relevant information for this purpose.
6. Complaints regarding discolorations and minor mutual color deviations shall not be considered. This also applies in respect of complaints that have changed in nature or composition after receipt by the purchaser or third parties, or have been fully or partially processed.
7. Return shipments will not be accepted by ECC until after its prior written consent. Unless expressly agreed otherwise, the costs of returning the products shall be borne by the purchaser. If the complaint is subsequently found to be justified, these costs shall be eligible for refund.
8. Unless the delivered goods do not comply with the contract as a result of a shortcoming on the part of ECC and the purchaser has complained to ECC about this in time, ECC shall be entitled to charge the purchaser for all costs incurred in connection with the return shipment, including administration and storage costs.
9. Complaints will never suspend the payment obligation of the purchaser.
ARTICLE 10. | FORCE MAJEURE
1. ECC is not obliged to fulfill any obligation under the contract if it is prevented from doing so by a circumstance that cannot be attributed to it under the law, a legal act or generally accepted practice.
2. If the force majeure situation continues for more than three months, or if it is foreseeable that the force majeure situation will continue for more than three months, the parties shall be entitled to dissolve the contract with immediate effect.
3. If ECC has already partially fulfilled its obligations or can partially fulfill its obligations when the force majeure situation arises, it is entitled to separately invoice the part of the agreement already performed or the part that can be performed as if it were an independent agreement.
4. Damage resulting from force majeure shall never be eligible for compensation.
ARTICLE 11. | SUSPENSION AND TERMINATION
1. ECC is authorized, if the circumstances so justify, to suspend the performance of the contract or to dissolve the contract with immediate effect, if the purchaser does not comply, does not comply on time or does not comply in full with the obligations under the contract or these terms and conditions of delivery, or if after the conclusion of
the contract ECC becomes aware of circumstances which give ECC good reason to fear that the purchaser will not comply with its obligations.
2. If the purchaser is in a state of bankruptcy, a suspension of payment has been applied for, its goods have been attached or in cases in which the purchaser cannot freely dispose of its assets in any other way, ECC is entitled to dissolve the contract with immediate effect, unless the purchaser has already provided sufficient security for payment.
3. ECC is also entitled to dissolve the contract if circumstances arise which are of such a nature that compliance with the contract is impossible or cannot reasonably be required of ECC.
4. The buyer shall never claim any form of compensation in connection with the right of suspension and termination exercised by ECC under this article.
5. Insofar as this can be attributed to him, the purchaser is obliged to compensate the damage suffered by ECC as a result of the suspension or dissolution of the contract.
6. If ECC dissolves the contract pursuant to this article, all claims against the purchaser shall be immediately due and payable.
ARTICLE 12. | WARRANTY
1. The provisions of this article shall not affect the provisions of any warranty terms expressly agreed upon in writing.
2. For delivered bicycles, a warranty period of 2 years applies to the frame and fork. For electric bicycles, a warranty period of 1 year applies to the electronic parts, not including lighting. With respect to parts subject to wear and tear, such as tires, brake discs, as well as for other items than those referred to in the first two sentences, no warranty shall apply.
3. The warranty period starts from the moment the product intended for resale is made available to the buyer's customer. The date on the proof of purchase to be provided by the buyer to his buyers shall determine the moment at which the warranty periods commence.
4. The warranty will lapse if a defect in the product is the result of an external cause and/or cannot be attributed to ECC. This includes, but is not limited to, defects resulting from rusting, damage, improper or injudicious use, failure to maintain or have maintained in a professional and regular manner, making changes to the products, including repairs not carried out with ECC's consent.
5. The warranty also lapses if the damage was caused by negligence on the part of the purchaser, for example because the purchaser has acted contrary to instructions, directions or advice from ECC.
6. Furthermore, there is no claim to warranty if the purchaser has not fulfilled his (payment) obligations towards ECC.
7. If ECC incurs investigation costs in order to establish a defect on the basis of which warranty is excluded, these costs shall be borne by the purchaser. ECC shall endeavor to give advance notice of these costs. The absence of such notification shall not affect the Purchaser's obligation to pay these costs.
8. In order to validate his warranty claim, the purchaser must complain to ECC within 2 days after his discovery of the defect. If ECC finds its complaint well-founded, ECC will, at its discretion, replace or repair the defective products, or parts thereof, free of charge.
ARTICLE 13. | PRICES AND PAYMENTS
1. Unless explicitly stated otherwise, all prices stated are exclusive of VAT, other government levies and shipping costs. Shipping costs shall be borne by ECC if the invoice value is at least € 1500, - (excluding VAT). In other cases, the shipping costs shall be borne by the purchaser.
2. If a change occurs in VAT rates or other government levies after an offer is made or after the contract is concluded, ECC shall be entitled to change the prices accordingly.
3. Furthermore, ECC shall be entitled to pass on to the Purchaser any price increases of cost-determining factors that manifest themselves after the conclusion of the contract.
4. ECC is always entitled to demand partial or full advance payment of the agreed price.
5. In case of prepayment, the buyer cannot assert any rights regarding the execution of the contract as long as the prepayment has not been made.
6. In case of liquidation, bankruptcy or suspension of payment of the buyer, the claims against the buyer are immediately due and payable.
7. In case of follow-up orders, the buyer must have paid the invoice in respect of the previous deliveries before these follow-up orders will be processed by ECC.
8. If payment by bank transfer has been agreed, payment must be made within 14 days of the invoice date, in the manner prescribed by ECC unless otherwise agreed in writing with the management.
9. If payment is not made on time, the Buyer shall be in default by operation of law. From the day on which default commences, the purchaser shall owe the then current statutory commercial interest on the amount due. The statutory commercial interest shall be calculated up to and including the day the full outstanding amount is paid.
10. All reasonable costs incurred to satisfy amounts owed by the buyer shall be borne by him. The extrajudicial costs will be calculated in accordance with the Collection Costs Act.
11. The purchaser is never entitled to set off claims from ECC against any counterclaims against ECC.
ARTICLE 14. | LIABILITY AND INDEMNIFICATION
1. Apart from the warranty explicitly agreed upon or referred to in article 12, ECC does not accept any liability. Furthermore, ECC shall not bear any liability for the cases referred to in the rest of these Terms of Delivery.
2. Except for intent and deliberate recklessness of ECC, ECC shall not be liable for any damage resulting from the use of the products delivered by it.
3. ECC shall never be liable for damages caused by ECC assuming incorrect or incomplete data provided by the purchaser.
4. ECC shall not be liable for damages resulting from improper storage of the products by the purchaser or third parties.
5. In particular, ECC shall not be liable for damage caused by acting contrary to the user instructions or other regulations or instructions provided by or on behalf of ECC.
6. ECC shall not be liable for damage for which the manufacturer of the products bears liability under product liability as referred to in Section 6.3.3. of the Civil Code.
7. ECC shall at all times be entitled to recover damages from the purchaser. The purchaser must give ECC the opportunity to do so, failing which any liability of ECC will lapse.
8. ECC shall never be liable for consequential damage, including loss of profit, losses suffered and damage as a result of business interruption. If ECC is liable despite the provisions of these Delivery Terms and Conditions, only direct damage will be eligible for compensation. Direct damage is exclusively understood to mean:
- the reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to damage eligible for compensation within the meaning of these terms and conditions;
- any reasonable costs incurred to make ECC's defective performance conform to the agreement, insofar as they can be attributed to ECC;
- reasonable costs incurred to prevent or limit damage, to the extent that the buyer demonstrates that these costs resulted in limiting direct damage as referred to in these terms of delivery.
9. If, based on the circumstances of the case, ECC's liability is more extensive, the liability shall be limited to a maximum of the invoice value of the agreement, or at least to that part of the agreement to which the liability relates.
10. Under no circumstances will liability exceed the amount paid out under ECC's liability insurance in the case in question.
11. Without prejudice to the provisions of the rest of these Terms of Delivery, in deviation from the statutory limitation period, the limitation period for all claims and defenses against ECC is six months.
12. Except in the case of intent or deliberate recklessness on the part of ECC, the purchaser shall indemnify ECC against all claims by third parties, for whatever reason, in respect of compensation for damage, costs or interest relating to the use of the products supplied by ECC or the work performed by or on behalf of ECC.
ARTICLE 15. | RETENTION OF TITLE
1. All products delivered by ECC shall remain its property until the buyer has properly fulfilled all obligations under the contract.
2. The buyer shall arrange for business insurance and/or contents insurance such that the products delivered under retention of title are covered at all times. At ECC's first request, the user shall allow inspection of the insurance policy and corresponding premium payment receipts.
3. Except to the extent deemed permissible in the ordinary course of business, the buyer is prohibited from selling, pledging or otherwise encumbering the products subject to retention of title. In the event the buyer acts as a reseller, he must stipulate a similar retention of title on the products in question when reselling them to his customer.
4. If third parties seize the products subject to retention of title or wish to establish or assert rights to them, the buyer is obliged to notify ECC of this as soon as possible.
5. The purchaser unconditionally authorizes ECC or third parties designated by ECC to enter all those places where the products subject to retention of title are located. In case of default of the purchaser, ECC shall be entitled to take back the products referred to here. All reasonable costs related to this shall be borne by the Purchaser.
ARTICLE 16. | FINAL PROVISIONS
1. Each agreement and all legal relationships arising from it shall be governed exclusively by Dutch law.
2. The parties will only appeal to the court after they have made every effort to settle the dispute by mutual agreement.
3. Only the competent court within the district of ECC's place of business shall be designated to take cognizance of disputes.
4. The Dutch text of these terms of delivery shall always be decisive for the interpretation thereof.