GENERAL TERMS AND CONDITIONS OF SCANDIA GEAR EUROPE B.V. (WEBSHOP B2B)
These general terms and conditions (hereinafter referred to as the “Conditions“) apply to all quotations, orders, and agreements concluded or to be concluded between Scandia Gear E-Com B.V. (hereinafter referred to as “Scandia“) and the counterparty (hereinafter referred to as the “Buyer“), as well as to all other legal relationships between them.
Article 1. General
- These general terms and conditions do not apply to offers to and agreements with natural persons who are not acting in the course of their profession or business.
- Deviations from these general terms and conditions are only valid if explicitly and in writing agreed upon by Scandia and the Buyer, and only apply to the specific agreement to which the deviations relate.
- If the Buyer declares its own general terms and conditions applicable to an agreement with Scandia or refers to them, Scandia does not accept those general terms and conditions, and the general terms and conditions of Scandia prevail.
- All provisions stipulated in these general terms and conditions and in any additional agreements for the benefit of Scandia are also stipulated for the benefit of intermediaries and other third parties engaged by Scandia.
Article 2. Quotations
- All offers and quotations by Scandia are non-binding and can be revoked by Scandia at any time, even if they contain a period for acceptance. Offers and quotations can also be revoked by Scandia within 5 working days after receiving acceptance in writing, in which case no agreement is concluded between the parties.
- Offers and quotations can only be accepted in writing (including electronic acceptance). However, Scandia is entitled to accept an oral acceptance as if it were given in writing. If the buyer places an order on Scandia’s website, the order becomes final at the moment the Buyer clicks the ‘ORDER’ button or receives an order confirmation by email. Upon receiving an email confirmation from Scandia, a binding agreement is established between the parties.
- Information contained in advertising materials in the broadest sense, such as catalogs, price lists, brochures, third-party websites, etc., is never binding for Scandia.
Article 3. Price
- All prices applied by Scandia are based on the price-determining factors known at the time of the offer or quotation.
- Unless expressly agreed otherwise in writing, the prices indicated by Scandia are always exclusive of taxes and shipping and packaging costs.
- Scandia is entitled to adjust the prices or parts thereof for goods not yet delivered and/or not yet paid for, based on any changes in price-determining factors, such as raw material prices, wages, taxes, production costs, currency exchange rates, etc.
- Scandia is always authorized to adjust the prices immediately if a legal price-determining factor gives rise to such adjustment.
Article 4. Delivery and Transportation
- Unless otherwise agreed, delivery shall be made Ex Works (EXW) according to Incoterms 2020.
- Delivery times provided by Scandia are never to be considered as strict deadlines. In the event of late delivery, the Buyer must notify Scandia in writing, granting a reasonable period for Scandia to fulfill its obligations. If Scandia exceeds this reasonable period, the Buyer is entitled to terminate the agreement in whole or in part. In such a case, Scandia shall not be liable to the Buyer for damages.
- Scandia is authorized to deliver the goods in installments.
- The Buyer is obliged to accept the goods as soon as they are offered by Scandia. If the Buyer refuses delivery, the Buyer is liable for all costs and damages arising therefrom, including but not limited to storage costs and costs of redelivery. The Buyer is not entitled to return delivered and accepted goods without prior written consent from Scandia.
- If the production or delivery capacity of Scandia prevents all orders from the Buyer and third parties from being (fully) executed, Scandia shall, at its discretion, determine which orders will be executed and at what time. In such a case, Scandia is allowed to deliver less than agreed upon.
- The risk of the goods passes to the Buyer at the moment the goods are made available at the agreed place.
- If the delivery involves Scandia arranging for transportation, such transportation shall be made to a single central address. The Buyer shall provide Scandia or the transportation company(ies) engaged by Scandia with the opportunity to physically deliver the goods and shall make every effort to prevent and minimize waiting times. Upon unloading and receiving the goods, the Buyer shall assist Scandia or the transportation company(ies) at the expense of the Buyer, including providing forklift trucks if necessary.
Article 5. Inspection and Complaints
- The Buyer shall inspect or cause to be inspected the delivered goods in terms of quantities and visible defects, and any visible defects or shortages must be immediately reported to Scandia upon delivery. Defects that were not visible upon delivery must be reported to Scandia within 24 hours of their discovery, and in any case within 24 hours from when the Buyer should reasonably have discovered them. The complaint must accurately describe the nature and basis of the complaint. The Buyer’s right to submit a complaint expires if the defect is attributable to the Buyer, including the case where the delivered goods have been stored or used improperly, or not in accordance with the agreed-upon or customary purpose. ‘Improperly’ shall also include the failure to observe the storage or usage instructions provided by Scandia.
- The Buyer shall carry out or have carried out the inspection with due care by the carrier engaged by the Buyer or another party. The Buyer bears the risk for a sampling inspection and may not rely on the fact that it has not discovered a defect that was visible and could have been discovered upon delivery because it – or a third party engaged by the Buyer – did not inspect the entire batch.
- In the event of a valid complaint, Scandia is only obliged, at its sole discretion, to:
(i) repair the defect,
(ii) replace the goods, or
(iii) credit or refund, in whole or in part, the amount invoiced for the defective goods.
- All rights and claims of the Buyer relating to the payment of a monetary amount, and/or repair of the relevant goods and/or replacement of the relevant goods and/or delivery of a shortage, on any ground whatsoever, as well as any right to terminate the agreement, expire at the earlier of the following moments:
a) late notification in accordance with Article 5.1, or
b) 12 months after the delivery date.
Article 6. Payment
- Scandia is at all times entitled to request security from the Buyer for the correct and timely performance of its payment obligations.
- If the delivery is made in parts, each part may be invoiced separately by Scandia unless otherwise agreed upon in writing with the Buyer.
- Payments must be made in Euros and within 14 days from the invoice date.
- If the Buyer fails to pay within the applicable payment term, the Buyer is automatically in default and shall, without further notice of default, owe an interest of 1% per month on the outstanding amount, without prejudice to the further rights of Scandia.
- In the event of payment default, all judicial costs and extrajudicial collection costs incurred by Scandia in order to enforce the Buyer’s obligation shall be borne by the Buyer. The extrajudicial collection costs amount to 15% of the amount due by the Buyer, with a minimum of EUR 250.00.
- In the event of payment default, Scandia is entitled to suspend the performance of the agreement and all related agreements or to terminate them.
- Payments made by the Buyer shall always be applied first to settle any outstanding interest and costs and then to the invoices that have been outstanding the longest, even if the Buyer states that the payment relates to a later invoice.
- Suspension and/or set-off by the Buyer is not permitted.
Artikel 7. Retention of Title
- All goods delivered by Scandia shall remain the property of Scandia until the Buyer has fully complied with all its obligations towards Scandia.
- The Buyer is obliged to (i) keep and/or make the goods subject to retention of title by Scandia identifiable, (ii) separate them from each other and from other goods in the possession of the Buyer, and (iii) adequately insure them against the usual risks.
- The Buyer waives in advance any right of retention that may exist with regard to those goods and shall not attach or cause to be attached any attachment to those goods.
- As long as the ownership of the delivered goods is reserved to Scandia, the Buyer is not allowed to sell, transfer, or dispose of these goods, except in the normal course of its business, nor to establish any security interest or encumbrance on them or in any other way remove them from the reach of Scandia’s claim.
- In the event of the Buyer’s non-compliance with its obligations mentioned in this Article 7, Scandia is entitled, after giving notice of default but without judicial intervention being required, to take back the goods that are still owned by Scandia by virtue of the retention of title or by any other means. The Buyer shall provide Scandia with the location of the goods and hereby grants Scandia permission in advance to enter the relevant premises to reclaim the goods.
Artikel 8. Liability
- Any liability of Scandia with respect to a defect in any delivered goods shall be limited to the obligations mentioned in Article 5.3.
- Scandia accepts no liability for damages resulting from or in connection with errors or omissions in advice provided by Scandia or in recommended instructions for use provided by Scandia.
- Scandia accepts no liability, regardless of the basis of the claim, for indirect or consequential damages, including but not limited to loss of profit, loss of savings, missed opportunities, loss of goodwill, incurred penalties or fines, or any other damages caused by delay.
- Scandia shall not be liable for any errors or inaccuracies in markings on the packaging.
- Nothing in these Terms shall exclude or limit Scandia’s liability for damages resulting from willful intent or gross negligence of its supervisory employees.
- The Buyer shall indemnify Scandia against all claims from third parties relating to goods supplied by Scandia.
- Without prejudice to Scandia’s other rights under these Terms, in the event of a recall, Scandia’s sole liability shall be limited to the handling costs incurred by the Buyer with respect to the products covered by the recall, which liability shall in no event exceed EUR 15,000.00 in total.
Artikel 9. Intellectual Property Rights
- The Buyer acknowledges and agrees that all Intellectual Property Rights related to the goods (including promotional materials) supplied by Scandia to the Buyer, and any resulting works, belong to Scandia and/or its affiliated companies, and that the Buyer shall not acquire any rights or associated goodwill in Scandia’s Intellectual Property Rights. “Intellectual Property Rights” of Scandia include, but are not limited to, trademarks, trade names, logos, designs, symbols, emblems, badges, slogans, service marks, copyrights, patents, models, drawings, know-how, information, and any other distinctive materials – whether or not capable of registration or filing – and all other intellectual property rights of Scandia.
- The Buyer shall not do or permit anything that could harm, endanger, or adversely affect Scandia’s Intellectual Property Rights, nor shall the Buyer assist or allow third parties to do so. In particular, the Buyer shall not: (i) modify, remove, or otherwise alter the Intellectual Property Rights or any other means of identification of the goods supplied by Scandia, (ii) use Scandia’s Intellectual Property Rights in a manner that would undermine their distinctiveness or validity, (iii) use Scandia’s trademarks in relation to the goods supplied by Scandia, except with the prior written consent of Scandia, and (iv) use trademarks or trade names that are identical or similar to Scandia’s trademarks or trade names, which may cause confusion or deception.
- The Buyer shall promptly inform Scandia of any actual or anticipated infringement of Scandia’s Intellectual Property Rights that comes to the Buyer’s attention.
Artikel 10. Force Majeure
- In the event that Scandia is unable to fulfill its obligations due to circumstances beyond its control (force majeure), it shall not be liable. To the extent that performance is not permanently impossible, its obligations shall be suspended. If the period during which performance is not possible due to force majeure exceeds or will exceed three (3) months, both parties are entitled to terminate the agreement, without any obligation to pay damages in that case.
- If, at the onset of force majeure, Scandia has already partially fulfilled its obligations, or can only partially fulfill its obligations, it is entitled to invoice the already delivered or deliverable part separately, and the Buyer is obliged to pay this invoice as if it were a separate agreement.
- Force majeure of Scandia within the meaning of this article includes, but is not limited to, (labour) strikes, lack of raw materials, illness, crop failure, delays, transportation problems, (threat of) war, (partial or complete) mobilization, pandemics, riots, sabotage, floods, fires, nuclear threats, or other forms of destruction within Scandia’s company, (employee) lockouts, disruptions in the supply chain, and machinery or tool malfunctions or other disruptions within Scandia’s company. Force majeure also applies if one or more of the aforementioned circumstances occur within the companies of Scandia’s suppliers, and Scandia is thereby unable to fulfill its obligations (timely).
Artikel 11. Termination
- Scandia has the right to terminate the agreement, in whole or in part, with immediate effect and without further notice or judicial intervention, in the following cases and to the extent specified below:
If the Buyer applies for or is granted suspension of payment, or if the Buyer is declared bankrupt;
b. If the Buyer’s business is voluntarily or involuntarily liquidated;
c. If the Buyer’s business merges or is acquired;
d. If a significant part of the Buyer’s assets is seized;
e. If other circumstances arise where it is not reasonable to expect the continuation of the agreement.
Artikel 12. Privacy
- Scandia handles all personal data provided to it in accordance with applicable laws, particularly the General Data Protection Regulation (GDPR).
- All data provided by the Buyer is exclusively used by Scandia for the purpose of concluding and fulfilling the agreement, as well as for the operational needs of Scandia. Data is only shared with third parties if necessary for the aforementioned purposes.
Artikel 13. Applicable law and jurisdiction
- Dutch law exclusively applies to all legal relationships between Scandia and the Buyer. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- All disputes relating to the quotations, agreements and these Terms and Conditions themselves shall be settled by the competent court of the Rotterdam District Court if the Buyer is established in the Netherlands at the time the dispute arises.
- All disputes relating to the quotations, agreements, and these Terms and Conditions themselves shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (“NAI“) if the Buyer is established outside the Netherlands at the time the dispute arises. The arbitration tribunal shall consist of one arbitrator appointed by the Parties or, if the Parties fail to reach an agreement, in accordance with the list procedure of the NAI. The proceedings before the NAI shall be conducted in English. The arbitrator shall decide based on the applicable law. This is without prejudice to Scandia’s right to submit the dispute to the competent court according to the law.
Artikel 14. Miscellaneous
- If one or more provisions of these Terms and Conditions are found to be invalid or declared void by a court of law, the remaining provisions shall remain in full force and effect.
- Scandia has the right to unilaterally amend these Terms and Conditions. Such amendments shall become effective at the announced time of entry into force and upon transmission of the amended Terms and Conditions, whether electronically or otherwise, by Scandia to the Buyer.