DEFINITIONS
In these terms and conditions, the following definitions apply:
- terms and conditions: these sales, delivery and payment conditions working days: every day with the exception of Saturdays, Sundays, 1 January, Easter Monday, Ascension Day, Whit Monday, Christmas Day and Boxing Day. The days declared national holidays by the Dutch government, and the day on which the birthday of the King of the Netherlands is officially celebrated;
- days: all calendar days;
- agreement: any purchase agreement or sale agreement;
- term of the agreement: the period between the date of issue of the order and the agreed delivery deadline;
- intellectual property law: trademark law and patent law;
- private label: all products, whether or not based on one or more samples and/or drawings and/or photos originating from the buyer, which are manufactured by the seller solely on the basis of the seller’s raw materials;
- label/brand/trademark: a recognisable sign and/or word and/or image originating from the buyer, and/or to be incorporated in the product purchased by the buyer.
- QUOTES
Unless expressly stated otherwise, all quotes are considered as an offer without obligation that can be revoked after acceptance. If this revocation does not take place within 6 working days after acceptance, the agreement becomes binding.
– - ORDERS
Every agreement/order concluded between the seller and the buyer is fully binding on both parties, unless the seller/buyer gives a reasoned written notice within 12 days after the agreement/order is concluded stating dissolution of the agreement. This right will in any event accrue to the seller if the buyer is not creditworthy according to information from a credit reference agency or the seller’s credit insurer.
– - CALL-OFF AND PURCHASE
3.1 A call-off order refers to an order where the time of delivery depends on a request by the buyer. If nothing has been agreed with regard to the time of the call, the call date will be considered the day of delivery or the last day of the delivery deadline
3.2 Unless agreed otherwise, the delivery of a call-off order must take place within a period of 15 working days, starting on the first working day following the working day on which the written call is received by the seller. If the order or order confirmation does not state the time, the delivery can already be made before the intended time.
3.3 In the event of a late call, the buyer is entitled to an additional call period of 8 working days, starting on the first working day following the day on which the seller receives a written request from the buyer to supply the goods. There is no entitlement to an additional call period
if a deadline has already been agreed upon for the call.
3.4 In the event of a late call, the delivery deadline will be extended or the delivery date postponed by 15 working days, except if the order relates to goods that are listed as items that must be ready for shipment at the agreed time of the call-off.
3.5 In the event that the buyer does not make a call within the extended term, the seller can deliver the goods to the buyer or store the goods at the expense and risk of the buyer, including the risk of deterioration, in its warehouse or elsewhere. In the event of such storage, the goods are deemed to have been delivered. The buyer must be informed immediately about this storage together with submission of the invoice concerning the delivery.
3.6 If the buyer refuses to take delivery of the goods, the seller is entitled to store the goods in the manner and with the consequences as provided for in paragraph 5.
– - DELIVERY
4.1 Delivery is deemed to have taken place;
a. if the goods are collected by or on behalf of the buyer; when the goods are received;
b. if shipped through a professional carrier; when the goods are transferred to that carrier;
c. if shipped by a means of transport of the seller; when the goods are delivered to the buyer’s premises or warehouse.
4.2 From the moment of delivery, the goods are at the buyer’s risk.
4.3 With the exception of collected goods, the seller will arrange at its own expense insurance on behalf of the buyer, up to the amount of the sales price of
the goods. The goods are therefore insured against the normal transport risk, although the cover does not extend to acts of war or other extraordinary risks. In case of damage, the seller will deal with the damage in consultation with the insurer.
4.4 If the goods cannot be shipped due to circumstances beyond the seller’s control, the seller is deemed to have fulfilled its obligation to deliver the goods by making them available to the buyer, provided that the seller gives the buyer written notice within 6 working days after the goods have been prepared for shipment. In this case, the deadline for payment starts on the day on which the seller was able to deliver.
– - DELIVERY DEADLINE
5.1 With regard to the time of delivery, a date or a deadline may have been agreed with on the understanding that the term of an agreement must be at least 7 working days. If the time of delivery is only indicated with “speed”, “immediately”, “from stock” or words of similar purport, it is deemed that buyer and seller have agreed a delivery deadline of 10 days, starting on the date of the conclusion of the agreement. If the time of delivery is not indicated, it is deemed that buyer and seller have agreed a delivery deadline of 30 working days, starting on the date of the conclusion of the agreement.
5.2 The seller is entitled to a pre-delivery deadline of 10 working days, ending the day before the delivery date.
5.3 Subject to the provisions of paragraph 4, the seller is entitled to a supplementary delivery deadline of 10 working days, starting the day after the end of the delivery deadline or starting the day after the date of delivery.
5.4 There is no right to a supplementary delivery deadline;
a. if the term of the agreement does not exceed 10 working days;
b. for call-off orders relating to goods that must be ready for shipment at the agreed time of call-off for shipment.
5.5 Goods delivered after the supplementary delivery deadline or after the delivery deadline can be refused by the buyer or returned to the seller at the seller’s expense within 5 working days after receipt. Failure to do so will be deemed as the buyer’s acceptance of the goods.
5.6 The buyer can only claim compensation for damages incurred due to non-delivery or late delivery if, after the supplementary delivery deadline, or, if no right to a supplementary delivery deadline exists, after the delivery date or after the expiry of the delivery deadline, the buyer issues a written summons to the seller to fulfill its delivery obligation within 6 working days, and the seller remains in default.
5.7 Contrary to the provisions in the preceding sections, the agreement shall be deemed automatically dissolved if, or to the extent that, it is not executed within three months after the delivery deadline unless the exceeding of the delivery deadline or delivery date is at the seller’s request or a consequence of the buyer’s failure to call the order timely or due to suspension of delivery in the cases referred to in paragraph 7(2) onwards. In this case of automatic dissolution, neither party shall have the right to claim damages. The provisions in this paragraph do not apply if the buyer has demanded fulfilment or dissolution of the agreement and/or compensation for damages under paragraph 6 before the expiration of the aforementioned three-month period.
– - COMPLAINTS
6.1 Complaints are understood to mean all grievances of the buyer with regard to the capacity of delivery.
6.2 Complaints can only be asserted if they are submitted in writing, and if the letter from the buyer, which must contain a description of the complaints, is in the seller’s possession within 12 working days after delivery, without prejudice to the provisions of the following sections.
6.3 If the complaint concerns invisible or otherwise imperceptible defects (hidden defects), then the complaint can still be asserted within 12 working days after the defect has become apparent to the buyer, but never later than 12 months after the invoice date.
6.4 Complaints can only be asserted with regard to goods that are still are in the condition in which they were delivered, unless the complaint concerns hidden defects.
6.5 Minor deviations in quality deemed acceptable in the trade or technically unavoidable differences in quantity, width, colours, dimensions, finish, etc. cannot be grounds for complaints.
6.6 In the event of a justified complaint, the seller is entitled to return the defective goods for repair or replacement with other goods in accordance with the order, provided re-delivery takes place;
a. if the complaint concerns visible defects: before the delivery date or before the end of the delivery deadline, plus the duration of any entitled supplementary delivery deadline, or within 20 working days after the returned goods have been received;
b. if the complaint relates to defects as referred to in paragraph 3: within 20 working days after the returned goods have been received, but not later than 45 working days after the delivery date or after expiration of the delivery deadline.
– - PAYMENT
7.1 All invoices and bookings of receivables bear the same date as that on which the relevant goods have been delivered. Unless otherwise agreed, the payment term is 30 days days net.
7.2 If the buyer fails to pay in time, the seller is entitled, without prejudice to its other rights under these terms and conditions and the law, to;
a. demand immediate payment upon presentation of the goods to the buyer (cash on delivery) and/or security for payment for all current agreements;
b. suspend deliveries, as well as the production or processing of goods intended for delivery, without prejudice to its right to simultaneously or later demand security for payment. If the buyer then fulfils its obligations, the seller shall be given the time available necessary for production or processing,
taking into account the existing possibilities in its business, to deliver the goods;
c. dissolve the relevant purchase agreement in whole or insofar as it has not been executed by a written notice from the seller;
d. dissolve one, more or all current purchase agreements, in respect of which the buyer is not in default, wholly or insofar as not executed by the seller, by a written notice from the seller; The exercise of the rights mentioned under points a, b, and c can only be instigated after the seller has given the buyer a period of 3 days to fulfil its payment obligations and the buyer remains in default. Additionally, the mentioned right will only be exercised if the buyer has not complied with the seller’s demand for providing security for the payment of the amounts due under the said agreement(s) within 8 days. Until the right of dissolution has been exercised, the seller may at any time change its choice of the rights referred to in this section.
7.3 If, according to information from a credit information agency or the seller’s credit insurer, the buyer is in default towards third parties and/or considered non-creditworthy and/or insolvent, the seller, without the need for a formal notice of default, shall have the rights described in paragraph 2 with regard to all current purchase agreements to the extent they have not been executed.
7.4 If no payment has been received on the due date, the buyer will be charged the statutory interest pursuant to Book 6 Section 119 A of the Dutch Civil Code on the amount still due. If the seller is obliged to take collection measures after the due date, the buyer is liable for extrajudicial costs in accordance with “Rapport Voorwerk II”.
– - RETENTION OF TITLE
8.1 The seller retains ownership of all goods delivered or to be delivered under purchase agreements until they are fully paid for by the buyer;
a. the claims regarding the consideration for those goods;
b. the claims by the seller for the execution of the mentioned agreements as well work performed or to be performed for the benefit of the buyer;
c. the claims due to failure to comply with the mentioned agreements.
8.2 Goods are deemed not to have been paid for if the buyer has not demonstrated proof of payment
8.3 The buyer is obliged to show the goods to the seller at the first request and in case of payment default and in the cases referred to in paragraph 7 (c) and (d), and to return the goods if requested to do so. For the goods taken back pursuant to this section, the buyer will be credited for the market value of the goods to the seller on the day they are taken back.
8.4 The buyer is not authorised to alienate or encumber any goods subject to retention of title. The buyer may, however, sell and transfer the goods to third parties in the context of its normal course of its business. This permission expires by operation of law immediately if the buyer exhibits any shortcomings with regard to the claims for which the retention of title applies, is granted a provisional suspension of payments, or is declared bankrupt. Under no circumstances may the buyer use the goods subject to retention of title as security for claims of third parties.
– - FORCE MAJEUR
9.1 Force majeure is understood to mean any circumstance which the seller or the buyer could not reasonably have taken into account, and as a result of which normal execution of the agreement cannot reasonably be required by the other party.
9.2 The seller or the buyer will immediately warn the other party if force majeure arises.
9.3 In the event of force majeure, the other party cannot claim any compensation.
9.4 In the event of force majeure, the parties must make arrangements regarding the execution of the relevant agreement.
9.5 If a case of force majeure leads to the agreed date or deadline being exceeded, including any supplementary delivery deadline of at least 20 working days, the the other party, contrary to the provisions of paragraph 4, is entitled to terminate the agreement in question by means of a written notice.
– - INTELLECTUAL PROPERTY LAW AND PRIVATE LABEL
10.1 The seller guarantees that none of the products it sells to the buyer violate any intellectual property rights, and indemnifies the buyer against any claim from a third party based on infringement of intellectual property rights.
10.2 The warranty and indemnification described in paragraph 1 do not apply to products that have to be wholly or partially made in accordance with the specifications/drawing/photos of the buyer, or to any violations of an intellectual property right in respect of a label/brand/trademark and/or samples from the buyer for private label products.
10.3 The buyer guarantees that it is entitled to use the label/brand/trademark and any samples and/or drawings originating from the buyer to be used in or on private label products, and indemnifies the seller against any third party claim based on infringement of intellectual property rights with regard to the label/brand/trademark or samples and/or drawings originating from the buyer.
10.4 If there is a justified complaint with regard to private label goods in which the goods subject to the complaint are not repaired or replaced in accordance with Article 6 paragraph 6 of these terms and conditions, the seller is entitled to sell these products to third parties under the obligation of complete removal of the buyer’s label/brand/trademark or, if it is not feasible to remove the label/brand/trademark without damaging the affected products, the right to sell these products with the buyer’s label/brand/mark to third parties 1 year after the complaint has been established.
10.5 If the seller has sold products without a label/brand/sign based on samples and/or drawings provided by the buyer, the buyer guarantees that it does not infringe any intellectual property rights with these samples, etc., and indemnifies the seller against any claim by a third party based on the infringement of any intellectual property right.
10.6 If there is a question of a justified complaint concerning products without a label/brand/sign, in which these goods are repaired or replaced in accordance with Article 6 paragraph 6 of these terms and conditions. The seller is entitled to sell these goods to third parties.
– - LIABILITY
11.1 except in the event of intent or gross negligence, The seller is only liable for damage that is a direct result of the goods sold and delivered by the seller, up to the net invoice value of the invoice concerning the delivery of these goods.
11.2 For damages, including but not limited to loss of profit and/or business shutdown damage, which are an indirect result of the goods delivered by the seller, the seller is only liable, except in cases of intentional misconduct or gross negligence, for a maximum amount equal to the sum paid by the seller’s insurer for such damages.
– - TAXES
12.1 The sales prices or other stated prices do not include amounts due or to be paid in connection with the relevant transactions under VAT rules or other similar levies; all costs resulting from these taxes are borne by the buyer.
– - APPLICABLE LAW AND CHOICE OF FORUM
13.1 Dutch law applies to all agreements.
13.2 The court of the place of residence of the seller is competent to hear all disputes arising from this agreement, unless a different court is required by law.