KvK-nummer: 85021717
BTW NR: NL863474378B01
Edelmetaal Beheer Nederland B.V.
These general terms and conditions (hereinafter: the “Terms”) apply to all offers and agreements under which Edelmetaal Beheer Nederland B.V. (hereinafter: “EBN”) provides services to customers, including but not limited to the safekeeping of precious metals, the delivery or receipt of goods, or any other related services, regardless of their designation or form.
Deviations from or additions to these Terms shall only be valid if expressly confirmed in writing by EBN.
The applicability of any purchasing conditions or other terms and conditions of the customer or third parties is expressly excluded, unless otherwise agreed in writing.
EBN reserves the right to amend these Terms unilaterally. Amended terms shall enter into force on the date specified by EBN, provided that the customer has been informed thereof in writing or electronically, with due observance of a reasonable notice period.
For the purposes of these Terms, the following definitions shall apply:
a. Customer: the natural person or legal entity that enters into an agreement with EBN or otherwise places precious metals in custody with EBN;
b. EBN: Edelmetaal Beheer Nederland B.V., having its registered office at Faas Eliaslaan 13 (3742 AR) Baarn, the Netherlands, registered with the Dutch Chamber of Commerce under number 85021717;
c. Custody Agreement: the agreement pursuant to which EBN undertakes vis-à-vis the customer to store precious metals and to return them upon first request;
d. Precious Metals: physically existing precious metals such as gold, silver, platinum and palladium;
e. Storage Location: a secure and fully insured location designated by EBN where the precious metals are stored on an individual and allocated basis on behalf of the customer;
f. Agreement: any agreement concluded between EBN and the customer as referred to in this article, including the Custody Agreement.
In the event of any inconsistency between these Terms and specific provisions agreed in writing in a separate agreement or contract, the latter provisions shall prevail.
All offers, price quotations and proposals issued by EBN are non-binding, unless expressly stated otherwise, and may be revoked by EBN at any time, even after acceptance by the customer, as long as EBN has not yet confirmed such acceptance in writing.
An agreement between EBN and the customer is concluded:
a. upon written or electronic acceptance by the customer of an offer issued by EBN;
b. where no offer has been issued, at the moment the customer has fully completed and confirmed a digital Custody Agreement and EBN has sent a confirmation of receipt;
c. where the customer physically places precious metals in custody with EBN, provided that EBN has accepted such metals and has issued a receipt as referred to in paragraph 5.
In the situation referred to in paragraph 2(c), where no custody fee or conditions have been expressly agreed in advance, EBN shall be entitled to determine the custody fee and other applicable conditions on a reasonable and market-conform basis. These shall be confirmed to the customer in writing. If the customer does not object within seven (7) days of receipt, the customer shall be deemed to have accepted them.
EBN reserves the right, without stating reasons, to refuse any request for custody or actual placement of precious metals in custody. In the event of refusal, EBN shall inform the customer thereof as soon as reasonably possible in writing or electronically.
For each precious metal placed in custody by the customer, a receipt shall be drawn up specifying the nature, quantity and characteristics of the precious metal. This receipt forms an integral part of the Custody Agreement and shall be provided to the customer in digital or written form.
Where the agreement is concluded by electronic means, EBN guarantees that appropriate technical and organisational measures have been taken to secure electronic data exchange. Electronic communication shall constitute evidence of the conclusion of the agreement, subject to proof to the contrary.
The customer shall owe a custody fee for the safekeeping of precious metals.
This custody fee is calculated on the basis of the replacement value of the precious metals placed in custody. Such value consists of:
a. the daily applicable market price (spot price) of the relevant precious metal;
b. supplemented by surcharges such as bar production costs, mint premiums, applicable taxes (including VAT), and any sales margins.
The custody fee further depends on volume, weight, insurance premium, space required and the agreed custody period.
The following costs are not included in the custody fee and shall be charged separately to the customer:
a. costs reasonably necessary in connection with custody which were not foreseeable at the time of conclusion of the agreement;
b. costs relating to the physical receipt or return of precious metals, including inbound and outbound handling costs;
c. costs for additional insurance at the customer’s request.
The custody fee and any additional costs shall be invoiced by EBN quarterly in arrears, unless otherwise agreed in writing. Payment shall be made via a payment method designated by EBN.
The customer must settle all outstanding amounts owed to EBN before return or delivery of the precious metals can take place. EBN is entitled to exercise its right of retention and may suspend delivery of the precious metals until full payment has been received.
Payment terms applied by EBN shall be deemed strict deadlines. If the customer fails to pay within the stipulated term, the customer shall be in default by operation of law. From that moment, statutory interest shall be due (pursuant to Articles 6:119 and 6:119a of the Dutch Civil Code, as applicable), calculated from the invoice due date.
All judicial and extrajudicial costs incurred by EBN in order to collect outstanding amounts shall be borne by the customer. Extrajudicial collection costs shall be determined in accordance with the Dutch Extrajudicial Collection Costs Act (Wet Incassokosten), or, where the customer acts in the course of business, at a minimum of fifteen percent (15%) of the outstanding amount, subject to a minimum of EUR 150.
If the customer’s payment arrears:
a. continue for more than two (2) months from the original due date, or
b. exceed the current market value of the precious metals in custody,
EBN shall be entitled, after a written notice of default sent by registered mail granting a final period of at least seven (7) days, to terminate the Custody Agreement with immediate effect and proceed with the private sale of the precious metals.
The proceeds of the sale referred to in paragraph 7 shall be applied by EBN to set off:
a. outstanding custody fees and additional costs;
b. reasonable costs of sale, storage, insurance and collection;
c. any other claims against the customer.
Any remaining surplus shall be paid to the customer within thirty (30) days after the sale.
If EBN exercises its right of sale under this article, it shall do so with due care and on the basis of a market-conform valuation of the precious metals.
The customer may terminate the Custody Agreement at any time in writing or electronically, subject to a notice period of one (1) month.
The customer is obliged to collect the precious metals placed in custody before expiry of the notice period at a location designated by EBN, or, if agreed, have them delivered to the address specified by the customer against reimbursement of transport costs. Return shall take place only after full settlement of all outstanding amounts.
If the customer fails to collect the precious metals in time or delivery proves impossible, the metals shall remain stored at the customer’s expense and risk. The custody fee shall continue to accrue until the precious metals have actually been returned to the customer or have been sold or destroyed by EBN. EBN shall issue one written demand requesting the customer to collect the metals within a reasonable additional period.
EBN is entitled to terminate the Custody Agreement prematurely in writing in the event of (partial) cessation of its business activities, subject to a notice period of two (2) months. If the customer is unable to collect the precious metals within that period, EBN shall arrange temporary replacement storage free of charge and inform the customer thereof in writing.
The Custody Agreement shall terminate by operation of law upon the customer’s death, declaration of bankruptcy, placement under guardianship, application of statutory debt restructuring, or suspension of payments. If the customer is a legal entity, the agreement shall also terminate upon dissolution or liquidation of that entity. The agreement shall further terminate if it appears that the customer provided incorrect or incomplete information at the time of conclusion and EBN would not have entered into the agreement, or not on the same terms, under correct circumstances.
In the cases referred to in paragraph 5, the custody fee shall remain due up to and including the month following the month in which the relevant event occurred. The heirs, trustee or administrator must collect the precious metals before the end of that period. Failing this, Article 4.3 shall apply mutatis mutandis. Articles 3 and 5 shall remain fully applicable.
The customer is obliged to collect the precious metals at a location designated by EBN, at a time to be agreed between the parties. Return shall take place only after all payment obligations towards EBN have been fulfilled, in accordance with Article 3(4).
Return shall be made to the customer personally, or to a third party expressly authorised in writing by the customer. If no authorised representative has been designated and return to the customer is not reasonably possible, delivery shall be made to the person legally entitled thereto by law or court order, unless the relevant property is subject to attachment or another third-party right of delivery applies.
In the event of partial return of the precious metals placed in custody, the customer shall sign a receipt prepared by EBN specifying the nature and quantity of the returned precious metals.
EBN is entitled to require the customer to provide security for the custody fee and other costs if:
a. the value of the precious metals remaining in custody gives reason to do so in EBN’s opinion; or
b. there are justified grounds to assume that the customer will not fulfil its payment obligations in a timely manner.
By way of derogation from the foregoing paragraphs, the following applies to precious metals stored in a customs warehouse in Switzerland: unless expressly agreed otherwise, such metals shall, at the end of the agreed custody period, in principle be repurchased through the mediation of The Silver Mountain or Inkoop Edelmetaal. Physical return shall only be possible at the customer’s request and subject to the conditions and costs imposed by EBN.
EBN undertakes to store the precious metals placed in custody with the care of a prudent custodian and to return them in the same condition as received, subject to normal value changes inherent to the nature of the goods.
During the term of the Custody Agreement, the customer shall have no right of physical access to the storage location or the stored precious metals. The customer is, however, entitled—subject to Article 5—to request interim return of part of the precious metals, provided that all obligations under the agreement have been fulfilled.
EBN maintains a liability insurance policy providing coverage for damage resulting from failure in the performance of its obligations under the Custody Agreement, insofar as such damage is attributable to EBN or third parties engaged by it.
For the duration of custody, EBN shall arrange storage insurance for the precious metals placed in custody, covering loss, theft or damage. The costs of this insurance are included in the custody fee, unless expressly agreed otherwise.
The customer is obliged to inform EBN in writing and in a timely manner of any changes in contact details, including at least address, telephone number and e-mail address. EBN is entitled to send notifications to the last known address or electronic contact point. The customer bears the risk of incorrect or outdated information.
EBN shall only be liable for direct damage resulting from an attributable failure to perform its obligations under the Custody Agreement, unless such failure results from circumstances which a prudent custodian could not reasonably have avoided and the consequences of which could not reasonably have been prevented.
EBN shall not be liable for indirect or consequential damage, including but not limited to loss of profit, loss of value, reputational damage, missed trading opportunities or other financial losses not constituting direct damage.
The limitations of liability set out in this article shall also apply for the benefit of EBN’s directors, employees, auxiliary persons and other third parties involved in the performance of the agreement.
The customer shall indemnify and hold harmless EBN, its directors, employees and engaged third parties against claims by third parties relating to the custody, unless such claims result from wilful misconduct or gross negligence on the part of EBN or its senior management.
The customer shall be liable for all damage suffered by EBN as a result of:
a. the nature or origin of the precious metals placed in custody, including contamination, infestation or legal restrictions (such as attachment or ownership disputes);
b. breach of contractual obligations or statutory provisions by the customer;
c. costs reasonably incurred by EBN for clearance, destruction, removal, attachment, bailiff actions or legal proceedings relating to the precious metals placed in custody.
If and insofar as EBN is liable for loss, disappearance or damage of the precious metals placed in custody, the customer shall be entitled to compensation in the form of replacement in kind or financial compensation, at EBN’s discretion.
Replacement in kind shall take place on the basis of the reference price applicable on the day following the insurer’s approval on the international precious metals market, namely:
a. LBMA Gold Price PM for gold;
b. LBMA Silver Price for silver;
c. LPPM Platinum Price and LPPM Palladium Price for platinum and palladium respectively,
unless otherwise agreed in writing. If such prices are not available at the relevant time, EBN shall determine the value using a commonly accepted and reasonable alternative reference price.
If replacement in kind is not possible for any reason, the customer shall be entitled to financial compensation equal to the value the precious metals would have had at the time the loss or damage was established, determined in accordance with paragraph 2.
Damage that is directly observable upon return must be reported by the customer to EBN immediately upon receipt. Failing such notification, EBN shall be deemed to have returned the precious metals without directly observable damage.
Damage that is not directly observable upon return must be reported to EBN in writing as soon as possible, but no later than fourteen (14) days after return. If this period expires without notification, EBN shall be deemed to have returned the precious metals without damage.
The customer’s right to bring a claim for damages against EBN shall lapse by operation of law three (3) months after the date of return of the precious metals, unless a written notice of default has been issued within that period.
For customers acting in the course of a profession or business, claims against EBN shall lapse if they have not been submitted in writing within twelve (12) months after the claim arose or should reasonably have become known.
Without prejudice to the exclusion of indirect damage set out in Article 7, EBN’s liability shall be limited to the lower of:
a. the custody fee for the last six (6) months; or
b. the amount paid out under the applicable liability insurance.
In the event of force majeure, EBN shall be entitled to suspend its obligations under the agreement in whole or in part, or to dissolve the agreement without judicial intervention, without being liable for any compensation.
Force majeure shall include, but not be limited to: failures in communication systems or price feeds, strikes, fire, government measures, sudden changes in laws or regulations, market closures, delays by logistics partners or insurers, and any other circumstance rendering performance temporarily or permanently impossible for EBN.
EBN is obliged to identify clients in accordance with the Dutch Anti-Money Laundering and Counter-Terrorist Financing Act (Wwft) and, where applicable, to report unusual transactions to the Financial Intelligence Unit (FIU).
EBN may refuse or suspend instructions as long as identification or the origin of funds has not been sufficiently established. Any damage or price losses resulting therefrom shall be borne by the customer.
EBN does not provide services or products to countries, entities or persons subject to international sanctions legislation.
All communication between EBN and the customer may validly take place electronically, including by e-mail or via a customer portal.
EBN’s records, including log files, order confirmations, e-mail headers and payment specifications, shall constitute binding evidence of transactions, subject to proof to the contrary.
The customer is responsible for providing correct and up-to-date contact details and for monitoring electronic messages (including spam filters).
All legal relationships between EBN and the customer shall be governed exclusively by Dutch law.
Any disputes arising out of or in connection with the Custody Agreement and these Terms shall be submitted exclusively to the competent court of the Midden-Nederland District Court, Utrecht location, unless mandatory statutory provisions designate another court.
These Terms have been drawn up in Dutch and may be made available in English for convenience only.
In the event of any discrepancy, inconsistency, or dispute regarding the interpretation of these Terms or any agreement governed by these Terms, the Dutch version shall prevail and be binding.