General Terms and Conditions PromoSelector

These Terms and Conditions, as amended from time to time, form an integral part of all legal relationships between the Customer and PromoSelector, except when the applicability of these Terms and Conditions is excluded or restricted by law, regulations or written agreement. Any general terms and conditions proposed by the Customer are rejected explicitly.

1. Definitions and interpretation
1.1 In these Terms and Conditions the following definitions apply:
Agreement means the agreement between the Customer and PromoSelector with regard to the order, sale, purchase and delivery of Products by PromoSelector, together with these Terms and Conditions.
Article means any article of these Terms and Conditions.
Customer means any (natural or legal) person(s) that PromoSelector makes or made an offer to regarding the conclusion of an Agreement, and/or any (natural or legal) person(s) with whom PromoSelector concludes or concluded an Agreement.
Parties means the Customer and PromoSelector.
Party means either the Customer or PromoSelector.
Product means any product and/or accessory that is available for purchase by PromoSelector.
Promotional Customer means a Customer who sells the Products within the promotional market, to a company, association or organization who in turn will distribute the Products free of charge as part of a promotional, loyalty, award or reward program.
Retail Customer means a Customer who sells the Products directly or indirectly to consumers.
Terms and Conditions means these general terms and conditions. PromoSelector means PromoSelector, a trading name of EVD HOLDING BV, having its statutory and address at Visotter 10, 3824VG in Amersfoort, The Netherlands.

1.2 Definitions and terms in these Terms and Conditions that are indicated with a capital letter and are not otherwise defined, shall, unless otherwise evidenced by the context, have the meaning as described in Article 1.1.

1.3 Words in the singular include the plural meaning and words in the plural include the singular meaning; use of any gender includes the other genders.

1.4 Headings are for reference only and shall not affect the meaning or interpretation of any provision of these Terms and Conditions.

2. Offers
All offers and other statements of PromoSelector shall be without the obligation as concerns price, delivery times and possibility of delivery and shall only serve as an invitation to place an order at PromoSelector.

3. Agreements
3.1 Agreements shall only be binding upon PromoSelector, also in the case that they have been concluded on behalf of PromoSelector by intermediaries (representatives), after such has been confirmed by PromoSelector in writing.

3.2 Acceptance of an offer, the order of a Product or the purchase of a Product implies that the Customers accepts the applicability of these Terms and Conditions.

3.3 All indications of weight, dimension and other (technical) specifications provided by PromoSelector are given in good faith and conscience, but PromoSelector can not guarantee that there will be no deviations from such indications. Mistakes, such as typing and printing errors, technical or color deviations or price modifications shall not be binding upon PromoSelector.

3.4 PromoSelector is entitled to assign third parties to execute the Agreement.

4. Prices and payment
4.1 All prices mentioned by PromoSelector shall be exclusive of turnover tax (VAT), other levies imposed by the government (if applicable) as well as shipping and other costs related to the Agreement incurred by PromoSelector, which may be charged separately to the Customer, unless agreed otherwise in writing. Except where agreed otherwise, all prices are in euros in all cases and the Customer must effect all payments in euros. Prices are subject to change without notice. In the event of any conflict between the prices shown in a physical catalogue of PromoSelector and the prices shown in the online catalogue (the webshop) of PromoSelector, the prices shown in the online catalogue shall prevail.

4.2 The Customer is responsible for providing PromoSelector with a correct VAT identification number. In the event the Customer fails to provide a correct VAT identification number to PromoSelector, the Customer shall be liable for the damages suffered by PromoSelector as a result thereof. In any case PromoSelector reserves the right to charge the Customer the applicable VAT rate for the Products delivered to the Customer.

4.3 Unless otherwise agreed upon in writing, the invoices of PromoSelector are due an payable by the Customer fourteen days after invoice date and must be paid to PromoSelector unconditionally, without any discount, deductions, settlement, withholdings or delays for whichever reason.

4.4 If the Customer consists of more than one natural and/or legal persons, each of these persons shall be joint and severally liable in respect of payment of the amounts due on the basis of the Agreement.

4.5 Complaints relevant to any of the invoices of PromoSelector must be submitted to PromoSelector in writing within seven (7) days of the invoice date, with a substantiation of the complaint; failing that, the Customer shall be deemed to have accepted the invoice as correct.

4.6 If the Customer fails to pay the amounts due to PromoSelector within the applicable payment period, the Customer shall by law be in default. During this period of default, the Customer is due a penalty interest rate of 1,5% per month or partial month on the total amount due.

4.7 In the event of (extra)judicial collection, the Customer shall be charged both the principal amount and the penalty interest rate and the actual collection costs incurred by PromoSelector. The (extra)judicial costs will amount to at least 15% of the principal amount.

5. Typesetting, printing or other proofs
5.1 PromoSelector shall be entitled to store, save and use graphic material provided by the Customer to PromoSelector.

5.2 The Customer shall be obliged to examine typesetting, printing or other proofs provided by PromoSelector to the Customer carefully for errors and defects and give his approval or disapproval, by a proper written notice of the errors and/or defects which is as detailed as possible, to PromoSelector within seven (7) days of the date of receipt of the typesetting, printing or other proofs; failing that, the Customer shall be deemed to have approved the typesetting, printing or other proof. PromoSelector shall not be liable for errors and defects that remained unnoticed in the typesetting, printing or other proofs which have been approved.

5.3 After approval of the typesetting, printing or other proofs by the Customer, the (underlying design of or on) the Product shall not be changed. The Customer however can request for changes after approval of the typesetting, printing or other proofs, in which case the Customer shall be charged for all the costs related to changes requested.

5.4 It cannot be ruled out that the typesetting, printing or other proofs on the one hand and (the design of or on) the delivered Products on the other hand, slightly deviate from each other, without the Customer being able to derive any rights therefrom.

6. Delivery
6.1 All periods and dates given by PromoSelector are target dates only and shall not have a binding effect on PromoSelector and shall in all cases be merely indicative. Exceeding these periods and dates shall not mean that PromoSelector is in default and therefore shall not give the Customer the right to terminate the Agreement completely or partly, nor shall the Customer be entitled to claim compensation.

6.2 Periods and dates for the delivery of Products that are manufactured or processed for the Customer according to his designs or specifications shall be determined definitively by PromoSelector after approval of the typesetting, printing or other proofs by the Customer as set out in Article 5.2. PromoSelector shall only be in default as the Customer has given written notice of default, which is as detailed as possible and in which PromoSelector has been given a reasonable time period to meet her obligations.

6.3 Products shall be delivered duty paid at the agreed place of delivery, unless agreed otherwise in writing. As soon as the Product has been delivered, the Customer bears the risk for all direct and indirect damage that may occur on or on account of the Product, even if the consignment is sent carriage-paid.

6.4 PromoSelector shall be entitled to provide partial deliveries of Products, without the Customer being able to derive any rights therefrom. These Terms and Conditions shall apply to each partial delivery.

6.5 PromoSelector shall be entitled to provide additional or lower deliveries of Products up to a tolerance limit of 5%, without the Customer being able to derive any rights therefrom.

6.6 The Customer may only return incorrectly delivered Products to PromoSelector with prior written approval of PromoSelector, in any case under the conditions that: a. the Products are undamaged, unused, unmarked and in their original, unopened packaging; and b. the Products conform to the normal range of Products of PromoSelector; Products that are manufactured or processed for the Customer according to his designs or specifications cannot be returned, unless previously and specifically agreed to in writing.

6.7 If, to the sole discretion of PromoSelector, PromoSelector is taking action or is cooperating with her suppliers to initiate recall actions, the Customer shall be obliged to cooperate in accordance with the procedures set out by PromoSelector.

7. Inspection and complaints
7.1 Upon acceptance or receipt of the Products the Customer is obliged to examine the Products and to notify defects to PromoSelector in writing without delay, but in any case within eight (8) days after acceptance or receipt of the Products. The Customer may only return non-conforming Products to PromoSelector with prior written approval of PromoSelector. If PromoSelector agrees with the return of the Products, she shall send the Customer a return code, which shall have to be clearly indicated on the package of the Product.

7.2 All claims of the Customer towards PromoSelector shall in any case expire irrevocably: a. when the time limit for complaints as set out in Article 7.1 has expired; b. if the Customer proceeds to or has someone proceed to any dismantling, repair or other work concerning the Products; c. if the Products have been processed in any manner by anyone other than PromoSelector; d. if the Customer does not cooperate regarding an investigation of the merits of the complaints; e. if the Customer has resold the Products.

7.3 In the event of the presence of a defect for which PromoSelector is responsible, PromoSelector is entitled to subsequent fulfillment by choosing at her discretion between: a. removing the defect; b. delivering a defect-free Product; c. replacing the Product with another product of the same kind; or d. crediting the purchase price of the non-conforming Products.

7.4 In any case the guarantee does not include defects which arise from or are completely or partly caused by: a. not taking into account the operating and maintenance instructions of the Products or other than anticipated normal use of the Products; b. normal wear and tear of the Products; c. repair by the Customer or by third parties of the Products; d. the application of any government regulation regarding the nature or the quality of the materials of the Products.

8. Guarantees
Unless previously and specifically agreed to in writing, PromoSelector offers no guarantee on the Products.

9. Retention of title and rights
9.1 All Products delivered to the Customer shall remain the property of PromoSelector until such time as all amounts owed by the Customer to PromoSelector pursuant to the Agreement have been paid in full.

9.2 Rights, including rights of use, shall be granted to the Customers to the condition that the Customer complies with all the obligations deriving from the Agreement.

9.3 If third parties want to create any right on or enforce any right to the Products delivered subject to retention of title, the Customer must notify PromoSelector accordingly immediately.

9.4 If there is serious doubt to PromoSelector to the payment capacity of the Customer, PromoSelector is entitled to postpone the delivery of Products, until the Customer has provided security for the payment. The Customer is liable for the damages suffered by PromoSelector by the delayed delivery.

10. Intellectual property rights
The intellectual property rights, created or embodied in or arising out of or in connection with the Agreement remain the sole property of PromoSelector. The Customer shall not during or at any time after the fulfillment of the Agreement dispute the ownership of such rights. All information contained in or arising out of the intellectual property rights is propriety to PromoSelector and shall not be made available to third parties unless previously and specifically agreed to in writing by PromoSelector.

11. Changes of the Agreement
Deviations from the Agreement shall be effected by documents executed by authorized representatives of PromoSelector.

12. Cancellation and termination of the Agreement
12.1 In exceptional cases, such at the discretion of PromoSelector, PromoSelector can consent to the cancellation of the Agreement; this consent must be given in writing. In case of cancellation of the Agreement all costs together with damages and interest shall be charged to the Customer.

12.2 The Customer shall only be entitled to rescind the Agreement if PromoSelector imputably fails to perform material obligations under the Agreement, in all cases after PromoSelector has received a proper written notice of default which is as detailed as possible and in which PromoSelector has been given a reasonable time period to remedy the breach.

12.3 PromoSelector may terminate the Agreement immediately by giving written notice in the event the Customer: a. is granted a suspension of payments; b. has filed a request for its own bankruptcy; or c. has been declared bankrupt.

12.4 PromoSelector may terminate the Agreement with immediate effect upon written notice to the Customer if PromoSelector determines that a. a governmental, regulatory, or professional entity, or an entity having the force of law, has introduced anew, or modified an existing, law, rule, regulation, interpretation, or decision, the result of which would render the performance of PromoSelector of any party of the Agreement illegal or otherwise unlawful or in conflict with independence or professional rules; or b. circumstances change such that the performance of PromoSelector of any part of the Agreement would be illegal or otherwise unlawful or in conflict with professional rules.

12.5 If the Customer at the time of the rescission referred to in Article 12.2 has already received performance in connection with the execution of the Agreement, this performance and the related payment obligation cannot be revoked, unless the Customer proves that PromoSelector is in default with regard to that performance. Amounts which PromoSelector has invoiced before the rescission in connection with by the Customer received proper performance under the Agreement, shall remain to be owed in full, subject to the provisions in the preceding sentence, and shall be immediately payable at the time of rescission.

12.6 All exclusions and limitations of liability and any indemnities set out in these Terms and Conditions shall survive expiry of termination of the Agreement.

13. Limitation of liability
13.1 Nothing in the Agreement shall exclude or restrict: a. any liability finally judicially determined to arise primarily from the willful misconduct or comparable instance of gross negligence of PromoSelector; or b. any other liabilities which cannot lawfully be limited or excluded, save to the extent permitted by law.

13.2 Without prejudice to Article 13.3, the Customer agrees that the total liability of PromoSelector due to an attributable failure to perform the Agreement or due to any other reason, shall be limited to the sum stipulated for the (delivery) value under the Agreement (exclusive of VAT).

13.3 The liability of PromoSelector for loss as a result of death, physical injury or due to material damage to items shall under no circumstances exceed two times the sum stipulated for the Agreement (exclusive of VAT).

13.4 In no event shall PromoSelector be liable for any consequential or indirect loss or damage, including but not limited to loss of profits, lost savings or loss due to business interruption.

14. Force majeure
Neither Party shall be liable for any delays or nonperformance directly or indirectly resulting from circumstances or causes beyond its reasonable control.

15. Transfer of rights and obligations
15.1 The Customer shall not be entitled to sell and/or transfer the rights and/or obligations arising from the Agreement to a third party, unless otherwise agreed upon in writing.

15.2 PromoSelector shall be entitled to transfer her rights under the Agreement to a third party. To the extent necessary the Customer shall immediately cooperate and take such actions and execute such documents as necessary or desirable to effect such transfer of rights.

16. Applicable law and competent court
16.1 The mutual legal position of the Parties is governed by Dutch law.

16.2 All differences between parties that may arise due to or in connection with the Agreement, shall primarily by exclusion be resolved by the District Court of Amersfoort, Midden Nederland, The Netherlands, such without prejudice to the right of PromoSelector to address any other competent court.

PromoSelector BV
Reg. Chamber of Commerce in Holland: 32113528
Email: edwin@promoselector.com
Tel.: +31 (0)683 94 7730