GENERAL TERMS AND CONDITIONS OF BEST OF WINES B.V.
Having its registered office at the Spiegelstraat 38c, 1405 HX Bussum, The Netherlands
Registered with the Chamber of Commerce under number 32124683
Article 1. Definitions. 1
Article 2. Applicability. 1
Article 3. Proposals and offers. 2
Article 4. Prices. 2
Article 5. Conclusion of the Agreement 2
Article 6. Delivery. 2
Article 7. Delivery times. 3
Article 8. Consideration period and right of withdrawal 3
Article 9. Inspection, complaints and quality guarantee. 4
Article 10. Invoicing and payment 4
Article 11. Reservation of title. 5
Article 12. Liability. 5
Article 13. Limitation period. 6
Article 14. Force majeure. 6
Article 15. Applicable law and choice of forum.. 6
Article 16. Change and interpretation of the terms and conditions. 6
Article 1. Definitions
In these general terms and conditions the following terms are capitalised and used in the following meaning, unless expressly indicated otherwise:
- Consumer: the Buyer who enters into an Agreement with Best of Wines and thereby does not act in the exercising of a profession or operating of a company.
- Buyer: the natural person or legal entity who purchases Products from Best of Wines and who is the other party to the Agreement with Best of Wines within the meaning of article 6:231 under c of the Dutch Civil Code (Burgerlijk Wetboek).
- Best of Wines: the party with which the Buyer concludes the Agreement and user of these general terms and conditions within the meaning of Section 6:231(b) of the Dutch Civil Code.
- Order: placing an order to supply Products by the Buyer from Best of Wines.
- Agreement: the agreement between Best of Wines and Buyer on the basis of which Best of Wines supplies Products to Buyer against payment.
- Parties: Best of Wines and the Buyer jointly.
- Products: all goods, including wine, whiskey, rum and other alcoholic beverages, which are the subject of the Agreement.
- In writing: “In writing” for the purposes of these general terms and conditions shall also include communication by e-mail, fax or digital (for example via an online interface), provided that the identity and integrity of the content are duly established.
- Website: Best of Wines’ website, which can be accessed at: https://bestofwines.com.
Article 2. Applicability
- The present general terms and conditions are applicable to any and all proposals, Agreements and deliveries of Best of Wines, of whatever nature, unless this applicability is fully or partly expressly excluded in writing and/or unless expressly stipulated otherwise.
- Any general terms and conditions of the Buyer, by any name whatsoever, are expressly rejected. Deviations from and additions to these terms and conditions shall only be applicable if and to the extent that they have expressly been accepted by Best of Wines in writing.
- Should Best of Wines have permitted deviations from the present general terms and conditions for a short or a longer period of time, whether or not implicitly, then this shall not affect its right to demand direct and strict compliance with these terms and conditions as yet. The Buyer cannot derive any rights from the manner in which Best of Wines applies the present terms and conditions.
- The present terms and conditions are equally applicable to all Agreements concluded with Best of Wines for the implementation of which third parties must be relied on. Said third parties can invoke the present terms and conditions directly against the Buyer, including any exclusions of liability.
- Should one or more provisions of the present terms and conditions or of any other Agreement concluded with Best of Wines be in breach of a mandatory statutory provision or any applicable legal provision then the relevant provision shall expire and shall be replaced by a new, legally permissible and comparable provision to be established by Best of Wines.
Article 3. Proposals and offers
- Any and all proposals and offers of Best of Wines are revocable and are made subject to contract, unless indicated otherwise in writing.
- The content of the delivery shall exclusively be determined by the description of the delivery specified in the proposal. If the acceptance deviates (on subordinate points) from the proposal included in the offer then Best of Wines shall not be bound by the same. The Agreement shall in that case not be concluded in accordance with said deviating acceptance, unless Best of Wines indicates otherwise.
- Clear errors or clerical errors in the proposal of Best of Wines, e.g. on its Website or pricelists, shall not bind Best of Wines.
Article 4. Prices
- For Orders within the Netherlands, the given prices include VAT and other applicable government levies. The postage and packaging fees shall be borne by the Buyer, unless the Buyer indicates that he/she wishes to collect the Products from the company.
- For Orders intended for countries outside the Netherlands, the prices provided by Best of Wines for freight are paid up to the agreed final destination “CPT – Carriage Paid To” (in accordance with the provisions of the most recent version of the Incoterms as drawn up by the International Chamber of Commerce). The prices are therefore exclusive of VAT, insurance, import duties, excise duties applicable in the importing country and other taxes or levies imposed or charged in relation to the goods, but including transport and packaging costs, unless otherwise stated.
- Best of Wines is entitled to change its prices at any time. Proposals and offers shall not automatically be applicable to future Orders.
Article 5. Conclusion of the Agreement
- Barring the provisions set forth below an Agreement with Best of Wines shall only be concluded after Best of Wines has accepted respectively confirmed an Order in writing. The Order confirmation is deemed to correctly and completely represent the Agreement, unless the Buyer immediately objects to the same in writing.
- As far as Orders placed on the Website of Best of Wines are concerned, contrary to the provisions of paragraph 1 of this article, the Agreement will have been concluded at the time the Buyer has successfully gone through all steps of the online ordering process. Best of Wines will confirm the Order to the Buyer in writing.
- Any additional arrangements or changes made at a later time will only bind Best of Wines if these are confirmed by Best of Wines in writing within five days.
Article 6. Delivery and transfer of risk
- Unless otherwise agreed, delivery and insurance of goods to find destination outside the Netherlands will be paid for up to the agreed destination “CPT – Carriage Paid To” (in accordance with the provisions of in the most recent version of the Incoterms as drawn up by the International Chamber of Commerce). Best of Wines shall bear the transport costs, but the risk associated with transporting the goods shall pass to the Buyer at the moment that Best of Wines has confounded the goods over to the first transport company.
- For shipments within the Netherlands, the goods shall be transported at the risk of Best of Wines, unless explicitly agreed otherwise. The transport costs shall be displayed upon payment. The risk associated with the Products shall pass to be Buyer at the moment that these are presented for receipt at the delivery address.
- The choice of the means of transport is that of Best of Wines, also in case of paid shipments, with no requirements for the shipment issued by the Buyer. Temporary hindrances or impediments in transport with the chosen means of transport, don't automatically require the use of another means of transport.
- If the Buyer, notwithstanding paragraph 2 and 3, wishes Best of Wines to use a certain method of delivery or transport that is not offered as a matter of course, shipping shall be at the risk of the Buyer. The risk relating to the Products shall in that case pass to the Buyer at the moment that Best of Wines has handed over the Products to the first transport company.
- If the Buyer has specific requirements with regard to packaging used by Best of Wines, all costs for the use of this packaging shall be accountable to the Buyer. Packaging materials are not taken back by Best of Wines.
- If it has been agreed that the Buyer shall himself/herself collect the Products or arrange the transport, the Products that are ready for collection or shipment must be collected from or received at the date of delivery. The risk relating to the Products shall, in this case, be passed to the Buyer at the moment that the Buyer or a third party called in by the Buyer takes possession of the Products.
- If it turns out to be impossible to deliver the Products to the Buyer because of a cause on the side of the Buyer, Best of Wines reserves the right to store those Products for the account and risk of the Buyer, possibly in the open air, all without any liability on the part of Best of Wines for damage, impairment, loss or otherwise. A 30-day period apply during storage during which Best of Wines will enable the Buyer to collect or receive the Products. This applies unless Best of Wines expressly determined a different period in writing.
- If the Buyer also fails to comply with its obligations after the expiry of the time limit, as intended in the previous paragraph of this article, Buyer shall by operation of law be in default and Best of Wines shall be entitled to dissolve the Agreement, either in whole or in part, in writing and with immediate effect, without any prior or further notice of default and without any judicial intervention being required and without being liable to pay compensation for damage, costs or interest. As the occasion arises Best of Wines shall be authorised to sell the Products to third parties or to use the same for the implementation of other Agreements and also to destroy the documents already prepared. The foregoing shall not affect the obligation of the Buyer to pay the agreed price as well as possible storage costs and/or other costs.
Article 7. Delivery times
- If Best of Wines has indicated a time for the delivery or the implementation of the Agreement then this shall only be approximate. A specified delivery time can therefore never be qualified as a fatal deadline. In the event that a delivery date is exceeded, the Buyer should, therefore, give Best of Wines written notice of default. Best of Wines must then be granted a reasonable time limit to implement the Agreement as yet.
- If and to the extent that this is, at the discretion of Best of Wines, required for a proper implementation of the Agreement, Best of Wines shall be entitled to rely on third parties for the performance of certain activities.
- Buyer shall see to it that all data of which Best of Wines indicates that they are required or of which Buyer should within reason understand that they are required for the implementation of the Agreement, are supplied to Best of Wines in a timely fashion. If the data and tools required for the implementation of the Agreement have not been supplied to Best of Wines in a timely fashion then Best of Wines shall be entitled to suspend the implementation of the Agreement and/or to charge the additional costs deriving from the delay to the Buyer in accordance with the usual rates.
- If the Buyer wishes deferred delivery of the purchased Products, Best of Wines shall arrange storage for the Products. Best of Wines shall not charge the Buyer for this for the first 90 days. After 90 days, Best of Wines shall charge the Buyer the amount of € 2,5 (excl. VAT) per bottle per month for the first 90 days. After 180 days Best of Wines shall charge the Buyer the amount of € 5,- (excl. VAT) per bottle per month. Best of Wines has the right to refuse issue of these Products until the Buyer has paid the amount owing for the storage. The risk relating to the purchase and stored goods shall pass to the Buyer at the moment of payment of the purchase price by the Buyer to Best of Wines (constituto possessorio delivery).
Article 8. Consideration period and right of withdrawal
- In the case of distance selling, the goods offered shall be subject to a consideration period of 14 days, effective as of the day following receipt by or on behalf of the Consumer, unless otherwise agreed. The purchase shall in that case only be final when the 14 days following delivery of the Product have expired.
- During the consideration period, the Consumer shall have the right of withdrawal, whereby the Consumer has the option to return the received Products without any obligation on his part other than reimbursement of the direct return costs.
- The Consumer can call on the right of withdrawal by informing Best of Wines of his/her intention within a period of 14 days following delivery, in writing or by email from or on behalf of the Consumer. The written statement should be sent by email to [email protected]. In order to do this, the Consumer can use the returns form provided by Best of Wines on their website, but the Consumer is not obliged to do so.
- If the Consumer makes use of his/her right of withdrawal, Best of Wines shall reimburse any amount already paid by the Consumer no later than 14 days following receipt of the returned Products.
- The Consumer may only make use of their right of withdrawal if the Product in question is returned complete, undamaged, unused and in the original packaging. The Consumer may take the Product out of the packaging if this is necessary to ascertain whether the Product meets the Buyer’s expectations, provided the original packaging remains intact and the Product can be returned unopened and undamaged. Once the Consumer has opened the Product for consumption; the Consumer can no longer make use of his/her right of withdrawal.
- After calling on the right of withdrawal, the Consumer must return the delivered goods to Best of Wines within 14 days. The return costs shall be borne by the Consumer. Products can also be returned to Best of Wines’ warehouse. Best of Wines will not provide their own transport for returning Products.
- Alcoholic drinks for which the price was agreed by contract, but for which delivery can only take place after 30 days, and for which the actual value depends on market fluctuations on which Best of Wines has no influence, are excluded from the right of withdrawal.
Article 9. Inspection, complaints and quality guarantee
- The Buyer must inspect the goods delivered immediately after delivery for any deviations with what has been agreed. Any complaints relating to the Products delivered have to be filed ultimately within eighty-four (48) hours after delivery to Best of Wines by e-mail or phone. After the expiry of the said period, the goods delivered shall be considered as having been irrevocably and unconditionally accepted by the Buyer. The Buyer has to hold the defective goods available for Best of Wines for the purposes of the assessment of the complaint. The submission of a complaint shall not suspend the Buyer´s payment obligation in respect of the Products in question.
- Should it upon arrival be visible from the outside that the goods are damaged, the Buyer has to make a reservation in writing in this regard against the carrier by means of a note on the proof of delivery.
- If a Product has a defect, such as ‘cork’, the Buyer should store the bottle(s) in question cool and sealed as soon as possible after finding the defect. Buyer should subsequently return the bottle to Best of Wines within three days for assessment. The cost of returning the goods shall be borne by the Buyer. If the defect is confirmed by Best of Wines, Best of Wines shall replace the Product free of charge, in other words: the bottle(s) in question, in which ‘cork’ has been established. If replacement is not possible, for example, because the Products in question is no longer in stock or its value has in the meantime, increased to such an extent that Best of Wines cannot reasonably be required to replace the bottle, Best of Wines shall reimburse the Buyer with the amount paid. Best of Wines shall not provide a quality guarantee for red wine older than 15 years and white wine older than 5 years.
- Goods that are sent or transported for replacement or quality assessment to Best of Wines, remain the risk of the Buyer at all times, regardless of who determined the manner of transport or shipping and no matter who pays the costs involved.
- Through fulfilment of one of the aforementioned actions, Best of Wines shall be fully discharged in respect of his guarantee obligations and Best of Wines will not be liable for any further (damage) compensation.
- Defective Products can only be returned after prior consultation with one of the salespeople of Seller.
Article 10. Invoicing and payment
- Best of Wines has the right when entering into the Agreement to require that the delivery takes place after full or partial advance payment by the Buyer has been made. Unless explicitly agreed otherwise, payment shall be made by means of prior bank transfer, by means of a payment method offered on Best of Wines’ website, such as iDeal or credit card.
- If it has been agreed that payment will take place by means of invoice, payment must take place within thirty (30) days after the date of the invoice, without any setoff or discount, in a manner to be indicated by Best of Wines in the currency of the invoice. Best of Wines reserves the right to send invoices digitally.
- After the expiry of the stipulated payment term the Buyer shall be in default by operation of law without any further notice of default being required.
- As from the moment of default the Buyer shall be liable to pay interest on the due and payable amount equal to 1% per month, unless the statutory commercial interest is higher in which instance the statutory commercial interest shall apply. As from that moment any and all judicial and extrajudicial costs that Best of Wines incurs in order to obtain satisfaction – both in and out of court – shall be at the expense of the Buyer. In that case the Buyer shall be liable to pay compensation equal to at least 15% of the outstanding amount with a minimum of € 150.00. For Consumers this amounts to at least 5% with a minimum of € 40,00. Should the costs actually incurred and to be incurred by Best of Wines exceed the aforementioned amount then these costs shall equally qualify for compensation.
- If the Buyer does not comply with its payment obligations in a timely fashion then Best of Wines shall be authorised to suspend the obligations entered into vis-à-vis the Buyer regarding delivery and/or performance of activities until the payment has been made or sufficient security has been provided for the same. The same already applies prior to the moment of default if Best of Wines may within reason assume that there are reasons to doubt the creditworthiness of the Buyer.
- In case of liquidation, insolvency, debt management or suspension of payment of the Buyer or a relevant application or petition the claims of Best of Wines and the obligations of the Buyer vis-à-vis Best of Wines shall immediately fall due.
- If the Buyer has, on any account whatsoever, one or more counterclaims vis-à-vis Best of Wines then the Buyer waives its setoff right. Said waiver of the setoff right is also applicable if the Buyer applies for (provisional) suspension of payment or is declared insolvent.
Article 11. Reservation of title
- Any and all goods delivered or to be delivered by Best of Wines shall remain the property of Best of Wines up to the moment that the Buyer has complied in full with all its payment obligations vis-à-vis Best of Wines on account of any Agreement concluded with Best of Wines for the delivery of goods and/or the performance of activities or the supply of Services, including claims in connection with a failure to comply with this kind of Agreement.
- A Buyer serving as an international seller does not have the right to sell or supply the Products that are subject to Best of Wines’ retention of title, nor if that is customary in the ordinary course of his/her business.
- The Buyer shall not be allowed to establish limited rights on goods that are subject to the reservation of title of Best of Wines. If third parties (wish to) establish (limited) rights on the goods subject to the reservation of title then the Buyer shall forthwith inform Best of Wines in writing accordingly.
- Best of Wines hereby already reserves an undisclosed pledge on delivered goods of which the title has transferred to the Buyer due to payment and which are still in possession of Best of Wines, by way of additional security for claims, other than within the meaning of article 3:92 paragraph 2 of the Dutch Civil Code, which Best of Wines may still have vis-à-vis the Buyer on any account whatsoever.
- The Buyer is obliged to keep (have kept) the delivered goods subject to the reservation of title separate from other goods, with the required diligence and recognisable as property of Best of Wines.
- The Buyer is obliged to insure the goods against fire, explosion and water damage as also against theft during the period of the reservation of title and to on demand provide Best of Wines insight into the policies of said insurances. Any and all claims of the Buyer vis-à-vis insurers of the goods on account of the aforementioned insurances shall, if so desired by Best of Wines, be pledged to Best of Wines in an undisclosed manner by way of additional security for the claims of Best of Wines vis-à-vis the Buyer.
Article 12. Liability
- If Best of Wines is liable for damage, said liability shall be limited to compensation of direct damages and at most to twice the invoice amount of the Agreement (excluding VAT), or that part of the Agreement to which the liability relates. Direct damage is exclusively understood as:
- the reasonable costs for the establishment of the cause and the scope of the damage, to the extent that the establishment is related to damage within the meaning of these general terms and conditions;
- the possible reasonable costs incurred in order to have the defective performance of Best of Wines comply with the Agreement, unless they cannot be attributed to Best of Wines.
- Best of Wines shall never be liable for indirect damage, including bodily harm, consequential damage, lost profit, lost savings, losses due to business interruptions, environmental damage and damage resulting from penalties imposed due to non-observance of delivery (completion) times.
- Best of Wines shall not be liable for damage, of any nature or any form whatsoever, in case it has departed from incorrect and/or incomplete data supplied by the Buyer.
- The limitations of liability for direct damage included in these general terms and conditions shall not be applicable if the damage can be blamed on intent or gross negligence on the part of Best of Wines.
Article 13. Limitation period
In all cases, the time limit within which Best of Wines can be held liable for compensation for damage is limited to 1 year after delivery of the Products to which the damage relates.
Article 14. Force majeure
- The parties shall not be obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that cannot be blamed on negligence and must neither be at their expense by law, a legal act or generally accepted practice.
- Under these general terms and conditions, force majeure shall mean, in addition to the meaning thereof as laid down in the law and in case law, all external causes, anticipated or not anticipated, on which Best of Wines cannot exert influence, but which prevent Best of Wines from fulfilling its obligations. This shall also include strikes in the company of Best of Wines or the manufacturer or supplier.
- Best of Wines shall also be entitled to rely on force majeure if the circumstance that prevents (further) compliance occurs after Best of Wines should have already complied with its commitment.
- During the period that the force majeure continues the parties can suspend the obligations on account of the Agreement. If this period lasts longer than 30 days then each Party shall be entitled to dissolve the Agreement, without any obligation to compensate the other Party for damage.
- To the extent that Best of Wines has already partly complied or shall comply with its obligations on account of the Agreement at the time of the occurrence of force majeure and independent value can be attributed to the part complied or to be complied with respectively, then Best of Wines shall be entitled to separately invoice the part already complied with or the part to be complied with respectively. The Buyer shall be obliged to pay this invoice as if it were a separate Agreement.
Article 15. Applicable law and choice of forum
- All Agreements concluded and to be concluded by Best of Wines shall be governed by Dutch law.
- All disputes between Best of Wines and a Buyer arising in connection with the present Agreement, or further Agreements resulting therefrom, shall be settled by the competent jurisdiction in the district in which Best of Wines has its registered office, unless a mandatory statutory provision opposes such.
Article 16. Change and interpretation of the terms and conditions
- In case of an interpretation of the content and meaning of these general terms and conditions as well as in the case of conflict between the content or interpretation of any translations of these general terms and conditions and the Dutch version, the Dutch text shall prevail each time.
- The most-recently filed version and/or the version as applicable at the time of conclusion of the Agreement shall always apply.