General terms and conditions - David best in tools

Article 1: Applicability – Definitions

These terms and conditions apply to every offer made by us and all our purchase/sale agreements – whether concluded via our website(s) www.davidbestintools.com or not – that we enter into with you.
If (part of) a provision is invalid or annulled, the remaining provisions of these terms and conditions remain applicable.
In case of a discrepancy between these terms and conditions and a translation thereof, the Dutch text shall prevail.
These terms and conditions also apply to follow-up or partial orders.
All provisions in these terms and conditions are written for both our business buyers and consumers. We use the term “consumer” when a provision contains a deviation or addition that applies only to consumers. A “consumer” is: a natural person acting outside their business or professional activity.
Furthermore, in these terms and conditions, we use the following terms:
offer: any offer made by us, whether or not in the form of a written quotation;
written: by letter, email, fax, or any other form of communication that can be equated with these, such as WhatsApp messages;
website: our website(s) referred to in paragraph 1.

Article 2: Offer – Prices

Unless we specify a validity period in/with our offer, it is a non-binding offer. A non-binding offer may be withdrawn by us within 2 working days after receiving your acceptance.
A combined offer does not obligate us to deliver part of the offered goods at a corresponding portion of the price.
If we base our offer on your information, and this information turns out to be incorrect/incomplete or changes afterward, we may adjust the quoted prices and/or deadlines accordingly.
Our offer and prices do not automatically apply to follow-up orders.
Samples and models shown or provided to you, as well as specifications of colors, sizes, weights, and other descriptions in brochures, promotional material, or on our website, are as accurate as possible but are for indication purposes only. You cannot derive rights from these.
The provided samples and models remain our property. Upon our request, you must return them to us. The costs of return are at your expense.
The prices mentioned in an offer or price list are exclusive of VAT and any other costs, such as transport or shipping fees, handling fees, and charges from third parties involved. On the website, we specify the applicable VAT amount and any costs per product.
Price reductions after the conclusion of the agreement due to, for example, clearance sales or discount promotions do not entitle you to a price reduction.
If we face (cost) price-increasing circumstances after the agreement is concluded, we may adjust the agreed prices accordingly. (Cost) price-increasing circumstances include changes in legislation, government measures, currency fluctuations, and changes in the prices of necessary parts/materials/raw materials.
If you are a consumer and the price change occurs within 3 months after the agreement is concluded, you may cancel the agreement within 5 working days after we notify you of the change. Cancellation is done by sending us a written statement.

Article 3: Formation of Agreement

The agreement is formed after you have accepted our offer. If your acceptance deviates from the offer, the agreement is only formed after we have agreed in writing to the deviations.
We are only bound by:
1. a purchase order without prior offer;
2. oral agreements;
3. additions or changes to the terms and conditions or the agreement;

after we have confirmed this in writing or as soon as we start executing the order or agreements without your objection.

We are only bound to your order via the website after we have confirmed the order – whether or not via an automatic message – in writing.

Article 4: Distance Sale – Cooling-off Period, Right of Cancellation

This article applies to consumers in the case of a distance sale as referred to in Article 6:230g paragraph 1 of the Dutch Civil Code (sales via our website).
As a consumer, you have a statutory cooling-off period of 14 calendar days. Within this period, you may cancel the agreement without providing a reason.
The cooling-off period starts from the day you or a third party designated by you (not being the carrier) has received:
1. the ordered goods;
2. the last item, if your order consists of multiple items that are delivered separately;
3. the last shipment or the last part, if the delivery of a single item consists of multiple shipments/parts;
4. the first item, if the agreement involves regular deliveries over an agreed period.
You cancel the agreement by sending us a written statement or by using the cancellation form on our website.
The cancellation results in the automatic cancellation of any additional agreements.
You do not have a right of cancellation in the case of:
1. specific goods made to your specifications or clearly intended for you/another specific person;
2. goods that for reasons of health protection or hygiene cannot be returned and where the seal has been broken after delivery;
3. goods that, after delivery, are irrevocably mixed with other goods.
4. If the goods do not meet the agreement, the complaint article in these terms and conditions applies.

Article 5: Distance Sale – Returns, Refunds

This article also only applies to consumers in the case of sales via our website.
Unless we arrange for the goods to be collected, the following conditions apply to returns:
1. within 14 calendar days after cancellation;
2. if possible, in the original packaging;
3. unused;
4. at your expense and risk.
By “unused” in paragraph 2 sub c, we mean: you may not use the goods more than necessary to determine the nature, characteristics, and functioning of the delivered goods. If you act contrary to paragraph 2 sub b or sub c, you will be liable for any depreciation of the goods.
We will refund the amounts received from you within 14 calendar days after receiving your cancellation statement. Unless we agree otherwise, we will do this in the same manner and currency as your payment.
Paragraph 4 also applies to any shipping costs you paid for delivery, but the costs of returning the goods are at your expense. This also applies to additional (shipping) costs incurred because you chose a different delivery method than the standard method we offer.
Unless we arrange for the goods to be collected, you can only claim a refund after:
1. we have received the goods back;
2. or you have proven that you returned the goods.
If the goods:
1. are altered;
2. are damaged;
3. have been used (see definition in paragraph 3);

we may refuse the goods or refund only part of the amounts received from you. If this is the case, we will inform you immediately after receiving the goods.

You are never liable or owe costs merely because you exercise your right of cancellation.

Article 6: Use of Third Parties

We may have deliveries made by third parties.

Article 7: Your Obligations

You ensure that you provide all the information necessary for the execution of the agreement in a timely manner. You guarantee that this information is correct and complete and indemnify us against any claims by third parties arising from the incorrect/incomplete nature of this information.
You may only resell the goods delivered to you in the original packaging, originating from us or our supplier. You may not make any alterations to the original packaging and must prevent any damage.
If you fail to meet (timely) the obligations mentioned above or any other obligations under the agreement/these general terms and conditions, we may suspend the execution of the agreement until you fulfill your obligations. The costs and other consequences (e.g., damages) arising from this are at your expense and risk.
If you fail to meet your obligations and we do not immediately demand performance, this does not affect our right to later request performance from you.

Article 8: Confidential Information

We keep all information that we receive from or about you in connection with entering into or executing the agreement confidential. We only disclose this information to third parties insofar as this is necessary for the execution of the agreement.
We take all reasonable precautions to keep this information confidential. The confidentiality obligation also applies to our employees and third parties involved in the execution of the agreement under our responsibility.
We process information covered by the GDPR (General Data Protection Regulation) in accordance with the GDPR and report any security breaches regarding the information in accordance with the GDPR.
The confidentiality obligation does not apply when we are required to disclose the information as a result of laws and/or regulations or a judicial ruling, and we cannot invoke a statutory or judicially granted privilege. This exception also applies to employees/third parties as referred to in paragraph 2.

Article 9: Delivery – Terms

We make every effort to execute deliveries on time, but agreed deadlines are never considered strict deadlines. If we fail to meet our obligations (timely), you must grant us a reasonable period for performance after we receive a written notice of default.
A deadline starts after we have received all the necessary information for delivery and any agreed (advance) payment from you. In case of delays, the deadline will be extended proportionally.
We may deliver in parts and invoice each partial delivery separately.
The risk for goods to be delivered transfers to you as soon as the goods leave our premises/yard, or we inform you that you may collect the goods.
Shipping or transport of the goods is at your expense and risk. We are not liable for any damage related to shipping/transport.
If you are a consumer, the risk for the goods transfers to you as soon as you or a third party designated by you receives the goods. If you designate a carrier, the risk transfers to you when the goods are received by the carrier. Shipping or transport is at your expense.
We may store the goods at your expense and risk if we are unable to deliver the goods in the agreed manner or you do not collect the goods, and the cause lies within your risk sphere. We will give you a reasonable period to either collect the goods or allow us to deliver them.
If you fail to fulfill your obligation to collect the goods after this reasonable period, you are immediately in default. We may, by sending you a written declaration, dissolve the agreement in whole or in part and sell the goods to third parties, without being liable for any damage, interest, or costs. This does not affect our right to claim compensation for our (storage) costs, damage, and loss of profit or our right to demand performance from you later.

Article 10: Packaging

Packaging intended for multiple uses remains our property. You may not use this packaging for any other purpose than it was intended for.
We determine whether you return the packaging to us or whether we will pick it up from you and at whose expense the collection will take place.
We may charge you a fee (deposit) for the packaging. If you return the packaging to us free of charge within the agreed period, we will take the packaging back. We will refund the deposit to you or offset it against the deposit for the packaging of a future delivery. We may deduct 10% handling costs from the amount to be refunded or offset.
If the packaging is damaged, incomplete, or entirely broken, you are liable for this damage, and your right to a refund of the deposit expires. If the damage exceeds the charged deposit, we are not obligated to take back the packaging and may charge you the cost price – reduced by the deposit you paid.
Packaging intended for one-time use may be left with you. Any costs for disposal are at your expense.

Article 11: Complaints

You must inspect the delivered goods immediately upon receipt and report any visible defects, damages, errors, defects, discrepancies in quantity, etc., on the delivery note. If there is no delivery note, you must report these complaints in writing to us within 2 working days after receipt. If you do not report these complaints in a timely manner, the goods are considered to have been received in good condition and in accordance with the agreement.
Other complaints must be reported to us in writing immediately after discovery – but no later than within the agreed warranty period. All consequences of not reporting complaints immediately are at your risk.
If you do not report a complaint in a timely manner, you cannot invoke any agreed warranty.
Complaints do not suspend your payment obligation.
The previous clause does not apply to consumers.
You must allow us to investigate the complaint and provide all relevant information. If a return shipment is necessary for the investigation, it is at your expense, unless your complaint is found to be justified. You always bear the shipping/transport risk.
Returns must be made in a manner determined by us and – if possible – in the original packaging/packaging.
No complaints can be made regarding:
imperfections in or characteristics of goods that are inherent to the nature of the materials from which the goods are made;
small, mutually accepted deviations in the industry regarding stated quantities, dimensions, weights, numbers, colors, structures, etc.;
color, structure, or other differences due to a changed production of the goods;
color fading and minor color variations;
goods that have been altered or processed after receipt by you.

Article 12: Guarantees

We will carry out the agreed deliveries properly and in accordance with the standards applicable in our industry, but we do not provide any guarantee other than that which we expressly agree upon with you.
During the warranty period, we guarantee the usual quality and soundness of the delivered goods.
If the manufacturer/supplier provides a guarantee for the delivered goods, this guarantee will also apply between us. We will inform you of this.
If you want to use the goods for a purpose other than the usual one, we only guarantee that the goods are suitable for this purpose if we confirm it to you in writing.
You cannot invoke the guarantee unless you have paid the agreed price for the goods in full.
The previous paragraph does not apply to consumers.
If you are rightly invoking an agreed-upon guarantee, we have the choice of either free repair or replacement of the goods or a refund/discount on the agreed price. If there is additional damage, the provisions of the liability article apply.
If you are a consumer, you may always choose free repair or free replacement of the goods, unless this is not reasonably possible. In this case, you may cancel the agreement by sending us a written statement or request a discount on the agreed price.

Article 13: Liability

Except for the expressly agreed guarantees or those provided by us, we accept no liability.
We are only liable for direct damage. Any liability for consequential damage, such as business damage, loss of profit, and loss incurred, delay damages, personal injury, or bodily harm is expressly excluded.
You must take all necessary measures to prevent or minimize the damage.
If we are liable, our obligation to compensate for damages is always limited to the maximum amount that our insurer will pay in the specific case. If no payment is made or the damage is not covered by an insurance policy, our liability is limited to the invoice amount for the delivered goods.
Any claims for compensation of damages expire in any case 6 months after you became aware or could have become aware of the damage you incurred and could have claimed it from us.
In deviation from the previous paragraph, a 1-year period applies for consumers.
We are not liable – and you cannot invoke the applicable guarantee – if the damage is caused by:
1. your improper use, use contrary to the purpose of the delivered goods, or use contrary to the instructions, advice, manuals, or guides provided by us;
2. your improper storage of the goods;
3. aging or loss of quality of the goods during your storage prior to any further delivery to a third party;
4. improper or insufficient maintenance of the goods;
5. errors or incompleteness of the information provided by you to us;
6. your instructions or directions;
7. or due to a decision by you that deviates from our advice or what is customary;
8. or because you or a third party (repair) carries out work or changes on the delivered goods without our prior written consent.
In the situations mentioned in the previous paragraph, you are fully liable for the resulting damage and indemnify us from third-party claims.
The limitations of liability mentioned in this article do not apply if the damage is due to our intent or gross negligence or if the limitations conflict with mandatory legal provisions. Only in these cases, we indemnify you from third-party claims.

Article 14: Payment

1. We may always request (partial) prepayment or other security for payment from you.
2. Unless otherwise agreed, you must pay within 7 days from the invoice date. The correctness of the invoice is deemed established if you do not object in writing within this payment term.
3. For orders via our website, you pay as indicated on the website.
4. If you have not (fully) paid within the payment term, you owe us default interest of 2% per month, to be calculated cumulatively on the principal amount. Partial months are considered as full months. What does this cumulative monthly interest mean? In the first month after the expiration of the payment term, we calculate the interest on the principal. In each subsequent month that you fail to pay, we calculate the interest on the principal, increased by the interest already accrued in previous months.
5. For consumers, we charge a default interest of 6% per year, unless the statutory interest is higher. In that case, the statutory interest applies.
6. If your payment still does not arrive after a reminder, we may charge you extrajudicial collection costs of 15% of the invoice amount, with a minimum of €40.00.
  1. For consumers, we give at least 14 days after receiving the reminder to pay. If payment still fails, the extrajudicial collection costs for the consumer are:
  2. 15% of the principal amount over the first €2,500 of the claim (with a minimum of €40.00);
  3. 10% of the principal amount over the next €2,500 of the claim;
  4. 5% of the principal amount over the next €5,000 of the claim;
  5. 1% of the principal amount over the next €190,000 of the claim;
  6. 0.5% of the remaining principal amount.

This is with an absolute maximum of €6,775.00.

1. 1. For the calculation of the extrajudicial collection costs, we may increase the principal amount of the claim after 1 year by the default interest accrued in that year.
  2. If your payment is delayed, we may terminate the agreement by sending you a written declaration or suspend our obligations under the agreement until you pay or provide us with adequate security. We have this right of suspension even before you are in default with your payment, if we have valid reasons to doubt your creditworthiness.
  3. Payments received are first applied to any outstanding interest and costs, and then to the overdue invoices that have been open the longest, unless you state in writing that the payment applies to a later invoice.
  4. You may not offset our claims with counterclaims that you believe you have against us. This also applies if you apply for (temporary) suspension of payments or are declared bankrupt.
  5. The previous paragraph does not apply to consumers.

Article 15: Retention of Title

1. 1. All goods delivered by us remain our property until you have fulfilled all your payment obligations.
  2. These payment obligations not only cover the purchase price of the goods but also our claims:
    1. for work performed in connection with the delivery;
    2. due to a culpable failure on your part, such as compensation, extrajudicial collection costs, interest, and possible fines.
  3. If we deliver identical, non-individualizable goods to you, the batch of goods corresponding to the oldest invoice(s) is deemed to be the first to have been sold. This means that the retention of title always applies to all delivered goods that are still in your stock/premises at the time we invoke our retention of title.
  4. You may resell the goods in the course of your normal business operations, provided you also agree on a retention of title with your customers.
  5. You may not pledge or place the goods subject to retention of title in the actual control of a financier.
  6. You will immediately inform us if third parties claim ownership or other rights to the goods.
  7. As long as you have the goods in your possession, you must keep them carefully and identify them as our property.
  8. You must maintain such business or property insurance that the goods delivered under retention of title are covered. Upon our request, you will provide us with access to the insurance policy and related proof of premium payments.
  9. If you act in violation of this article or if we invoke our retention of title for another reason, we or our employees may enter your premises and reclaim the goods. This does not affect our rights to terminate the agreement by sending you a written declaration or to claim compensation for our damages, lost profits, and interest.

Article 16: Bankruptcy – Incompetence to Act, etc.

1. 1. We may terminate the agreement – by sending you a written declaration – at the time when you:
  2. are declared bankrupt or an application for bankruptcy is filed;
  3. apply for (temporary) suspension of payments;
  4. are subject to enforcement seizure;
  5. are placed under guardianship or supervision;
  6. lose the authority to dispose of or manage (parts of) your assets in any other way.
  7. You must always inform the trustee or supervisor about the (content of the) agreement and these general terms and conditions.

Article 17: Force Majeure

1. 1. If we fail to fulfill our contractual obligations towards you, this cannot be attributed to us in cases of force majeure.
  2. The following circumstances are at least considered force majeure on our part:
    1. war, riot, mobilization, internal and external unrest, government measures or the threat of such/ similar circumstances;
    2. disruption of the exchange rates existing at the time of entering into the agreement;
    3. business disruptions due to fire, burglary, sabotage, power failure, loss of internet or phone connections, cybercrime, strikes, natural phenomena, (natural) disasters, etc., leading to, for example, our website not being (fully) available;
    4. transport difficulties and delivery problems caused by weather conditions, roadblocks, accidents, import and export restrictions, or a (temporary) shortage of required materials/parts.
  3. In the case of force majeure, we may terminate the agreement – by sending you a written declaration – or adjust/suspend our deliveries for a reasonable period. We do not have to pay you any compensation in this case.
  4. If the force majeure situation arises after we have partially executed the agreement, we are still entitled to compensation for the deliveries already made.

Article 18: Cancellation – Suspension

1. 1. This article does not apply to termination within the statutory cooling-off period as referred to in Article 4.
  2. If you cancel the agreement prior to or during the execution, we may charge you a fixed compensation for:
    1. all incurred costs;
    2. our damages suffered due to the cancellation, including lost profits.

Depending on the deliveries already made or costs incurred, this compensation will be between 20% and 100% of the agreed price.

1. 1. 1. You indemnify us against claims from third parties arising from the cancellation.
    2. We may offset the owed compensation against any amounts already paid by you and any potential counterclaims.
    3. If you ask us to suspend the execution of the agreement, we may immediately claim compensation for all deliveries made and charge you for it. This also applies to costs incurred or costs resulting from the suspension.
    4. Costs incurred by us to resume the deliveries are also at your expense. If we are unable to resume the execution of the agreement after suspension, we may terminate the agreement – by sending you a written declaration.

Article 19: Applicable Law – Competent Court

1. 1. Our agreements are governed by Dutch law.
  2. The applicability of the Vienna Sales Convention (CISG) is excluded.
  3. We submit disputes to the court that has jurisdiction in our place of business. We also always retain the right to submit the dispute to the competent court in your place of business or residence.
  4. As a consumer, you are always entitled to choose the legally competent court, even if we choose another court. You must inform us of your choice within one month of receiving the summons.
  5. If you are based/resident outside the Netherlands, we may also submit the dispute to the competent court in the country or state where you are based/reside.

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