General Terms and Conditions
GENERAL TERMS AND CONDITIONS OF SALE
of Best of Beachwear, Pacific Trading & Creations B.V. having its registered office at Buitenkaag, hereinafter referred to as the “Seller"
"Buyer" shall mean the party to whom the Seller makes an offer and/or with which the Seller enters into an agreement.
Article 1. Offer and Agreement
1.1. These General Terms and Conditions shall apply to all offers and agreements by and between the Buyer and the Seller. Variations to these General Terms and Conditions shall be valid only if expressly agreed upon in writing.
1.2. Each time the Buyer places an oral or written order with the Seller, such order shall constitute an offer to enter into an agreement.
1.3. An agreement between the Buyer and the Seller is only concluded by means of the signing of an order form (in the form provided by the Seller) by both the Buyer and the Seller (the "Agreement').
1.4. Each Agreement constitutes a new and separate Agreement subject to the terms of the present Article 1. However, if the courts should find that the Buyer and Seller have entered into a continuing performance agreement, the Seller may at its discretion choose to terminate all or any part of the relevant Agreements upon giving three months' notice to the Buyer, without having to pay any damages. In any event, the Seller may terminate the current Agreement(s) in place between the parties at any time upon giving three (3) months’ notice to the Buyer.
1.5. These General Terms and Conditions shall also apply to any offers and agreements regarding the delivery of items from stock. If such offers and/or agreements were made after the conclusion of a prior Agreement in connection with which the Buyer was already provided with a copy of these General Terms and Conditions.
Article 2. Manner of Execution of the Agreement
2.1. Within 7 working days after signing the Agreement and/or the order confirmation, the Buyer shall notify the Seller in writing of any mistakes in the Agreement and/or order confirmation (such as writing, printing or computing errors). The Seller shall correct such mistakes considered justified within a reasonable period of time.
2.2. Once an Agreement has been concluded, the Seller may vary the specifications (such as colors, measurements. number of articles and similar) within reasonable limits and if justified by commercial or technical reasons or by reasons commonly accepted in business practice. In such cases, the Seller may also decide not to deliver certain items.
2.3. The Seller's items shall be sold as separate and independent items. The Buyer may require the delivery of sets (items that can be combined) if the Agreement shows that the items involved were sold to the Buyer as a set. If the Seller nevertheless fails to deliver a set, the Buyer may terminate the Agreement as far as such items are concerned if consultations with the Seller fail to produce an acceptable solution.
Article 3. Payment
3.1. Payment shall be made within 30 days of the invoice date. Payment within 10 days 3% discount.
3.2. The Seller is entitled to require payment in advance.
3.3. In case of payment by way of direct debit the Buyer's right to request a refund shall expire after the lapse of 5 (five) working days from the date on which the funds were debited, in accordance with EU Directive 2007/64/EC on payment services in the internal market.
3.4. In cases of late payment, the Buyer shall be in default by operation of law, and the Seller may charge statutory interest (in accordance with EU Directive 2000/35/EC Combating late payments in commercial transactions) + 2% on the overdue amount as from the due date, without affecting the Seller's right to claim full compensation under statute law.
3.5. If partial deliveries are made, each such delivery may be charged separately. In such cases, Articles 3.1 to 3.4 shall apply in full.
3.6. Each payment by the Buyer shall be used to satisfy the oldest invoice outstanding, regardless of the payment description given by the Buyer.
3.7. The Seller reserves the right at all times to require that the Buyer pay the items (to be) delivered in advance before proceeding to make any (further) deliveries.
3.8. Payment shall always be made in the currency stated in the Agreement and without the Buyer being entitled to any discount or set-off.
Article 4. Purchase Prices and Retail Prices
Any resale prices indicated by the Seller are recommendations only and are not binding on the Buyer Purchase Prices are confidential between the Seller and the Buyer.
Article 5. Termination
5.1. At its discretion, the Seller may terminate any Agreement in whole or in part, without any notice of default being required, or postpone further performance of same, without having to pay any damages, (and without prejudice to any accrued rights or remedies of the Buyer) if:
- the credit insurance company fails to provide or cancels any credit with regard to the Buyer;
- an application is made or granted for a suspension of payments, bankruptcy or liquidation with regard to the Buyer or for the Buyer to be placed under guardianship, or a(n)
(out-of-court)debt rescheduling offer or agreement is made;
- the Buyer's business operations are discontinued;
- all of any part of the Buyer's operations are taken over by a third party;
- a direct or indirect change of control or ownership in (part of) the Buyers legal entity occurs;
- in the event of a substantial change of the management of the Buyer;
- a prejudgment attachment or attachment pursuant to a writ of execution is levied on a substantial portion of the Buyers assets;
- the Buyer fails to provide security for the performance of its obligations as envisaged in Article 12 either in a timely fashion, in accordance with the Sellers requirements, or at all.
5.2. The Seller may terminate or postpone any Agreement if the Buyer is in default regarding its payment obligations or any other material obligations under this Agreement with the Seller.
5.3. If the Seller terminates an Agreement for breach of any payment obligation or other material obligation, the Buyer shall be obliged to co-operate in undoing or returning any deliverables already received but also to pay damages equivalent to 50% of the order value of the items, without affecting the Seller's right to claim full compensation.
Article 6. Force Majeure
6.1. For the purpose of these General Terms and Conditions, force majeure shall mean circumstances outside the control of either party which prevent a party from performing its obligations and which cannot be attributed to that party, either because that party is not at fault for such circumstances, or because it cannot be held responsible for same on the grounds of statute law, pursuant to any juristic act or pursuant to the general opinion prevailing in society. Such circumstances shall include war, threat of war, civil war, riots, a government-proclaimed period of national mourning, strikes, transport problems, trade barriers, fire, illness, disability or the bankruptcy of any of the Seller's suppliers, the non or overdue delivery of goods by Seller's suppliers, disruptions to the regular supply of goods by third parties, such as water and electricity and other serious interruptions of the Seller's operations or those of third parties engaged by the Seller.
6.2. The Seller shall not be required to perform any obligations under any Agreement if prevented from so doing as a result of force majeure.
6.3. If force majeure or other special circumstances should prevent the Seller from performing its obligations under any Agreement in a timely fashion or at all, the Seller may perform the relevant Agreement within a reasonable period of time or - if this should not be possible - terminate all or any part of the Agreement, without having to pay the Buyer any damages.
6.4. In cases of force majeure, the Buyer may not terminate the relevant Agreement and/or claim any damages.
6.5. If one of the parties to an Agreement is unable to perform any of its obligations under that Agreement, it shall so notify the other party in writing as soon as possible.
Article 7. Delivery
7.1. Unless agreed otherwise between the Buyer and the Seller, delivery shall be made DDP (Delivered Duty Paid: incoterms 2010), with the manner of delivery to be decided by the Seller and effected by delivery of the goods to an address given by the Buyer. Delivery is effected when the goods are delivered by the Seller at the address given by the Buyer. Goods wrongly not accepted by the Buyer or not collected in a timely fashion by the Buyer are deemed to have been delivered to the Buyer when delivery would have taken place if the Buyer had complied with its obligations.
7.2. The risk of damage to or loss of the goods shall pass to the Buyer at the time of delivery.
7.3. The Seller may store any Goods which the Buyer has wrongly failed to accept or collect in a timely fashion at the Buyer's expense and risk. Reasonable storage costs shall be charged to the Buyer and shall be immediately payable upon demand.
7.4. In the event these General Terms and Conditions deviate from the Incoterms 2010 these General Terms and Conditions will prevail.
Article 8. Delivery Dates
8.1. 'Delivery Date" means the date on which the Delivery as referred to in Article 7.1 is effected.
8.2. Although the Seller shall observe the agreed Delivery Dates as much as possible, such dates shall be approximations only and time shall not be of the essence in respect thereof.
8.3. If necessary, the Seller may alter the Delivery Dates insofar as delivery by the Seiler depends on the performance of third parties, such as suppliers, carriers and customs authorities.
8.4. The Buyer recognizes that the Delivery Dates are based on the situation known to the Seller at the time of conclusion of the Agreement and, insofar as delivery depends on third-party deliverables, on the data furnished to the Seller by such third parties.
8.5. The Seller shall be in default for exceeding a delivery date only if sent a written notice of default by the Buyer allowing the Seller a reasonable grace period, and the Seller continues to fail to perform at the expiry of that period.
8.6. If no Delivery Date has been agreed, the Seller shall deliver the goods within what it considers to be a reasonable period of time.
Article 9. Complaints
9.1. The Buyer shall submit to the Seller any complaints about visible defects or non-delivery within eight (8) working days of delivery date or invoice date respectively. Any such complaint must be filed in writing and provide a statement of reasons.
9.2. Complaints about defects incapable of being detected by random checks shall be submitted to the Seller in writing within eight days of discovery, and in any case within six months of delivery.
9.3. If the Seller considers a complaint to be founded, the Seller may, at its discretion, repair or replace the goods within a reasonable period of time, refund the value of the goods and/or handle the complaint as appropriate.
9.4. The Seller shall consider to be unfounded complaints about minimal and/or technically inevitable variations in quality, quantity, size, color finishing and similar, or variations in same generally considered permissible in the industry, as well as complaints about items having been removed from its range of products.
Article 10. Return of Goods
10.1. The Seller shall refund the purchase price charged to the Buyer for and reimburse the Buyer for the transport costs associated with goods which have justifiably been returned.
10.2. Return shipments shall require the Sellers prior written permission. The Seller shall inform the Buyer in writing as to whether the Seller will arrange for the items to be picked up or the Buyer will have to send them back.
10.3. If the goods are returned by the Buyer, the risk of damage or loss shall remain with the Buyer until the goods have been received by the Seller.
10.4. Receipt by the Seller of any return shipments may not be interpreted as constituting approval or acceptance of such shipments.
10.5. The Seller shall store any items returned without justification at the Buyers expense and risk.
Article 11. Collection Costs
11.1. All costs of judicial and extra-judicial measures which the Seller has to take against the Buyer shall be payable by the Buyer.
11.2. The collection costs to be reimbursed by the Buyer shall be a minimum of 15% of the amount owed by the Buyer to the Seller for the first payment reminder or demand letter, and a minimum of EURO 150,= for each subsequent payment reminder or demand letter
11.3. If the Seller places the debt for collection, the Buyer shall reimburse the Seller for the costs of extra-judicial legal assistance. Such costs shall be calculated in accordance with the collection rate applied by the Dutch Bar Association. subject to a minimum of EURO 150.=
11.4. The amounts quoted in the present Article shall become payable upon demand by the mere fact that the Seller is compelled to demand payment from the Buyer or take any further (legal) steps.
Article 12. Security
12.1. The Seller may require that the Buyer provide (any) security (interest) for the performance of the Buyer's payment obligations. The Seller may also determine the period in which such security is to be provided.
12.2. Failure to provide the requisite security in full, in a timely fashion or at all shall constitute an attributable failure to perform (breach of contract) and shall justify postponing and terminating the Agreement by the Seller.
Article 13. Warranties
All implied warranties shall be excluded, to the extent permitted by law. The Seller shall have no additional warranty obligations unless expressly agreed in writing.
Article 14. Retention of Title
14.1. The Seller shall retain title to all items delivered or yet to be delivered, until:
- the Buyer has supplied all deliverables and satisfied all of its (payment) obligations with regard to all items (to be) delivered under any Agreement;
- all claims for breach of contract on the part of the Buyer have been satisfied.
14.2. As long as title to the items delivered has not passed to the Buyer, the Buyer may not pledge such items or grant any third party any other right in same, except as provided for in Article 14.6.
14.3. The Buyer shall take out insurance for the period during which title is retained in order to cover the full value of the items against "all risks", including fire and water damage, and theft and submit the insurance policies for inspection to the Seller at the Seller's request.
14.4. If the Buyer should fail to meet its payment obligations or the obligations arising from this Article 14 or if the Seller has good reason to fear that this will be the case, the Seller may repossess and resell any items delivered to which it has retained title.
14.5. After repossessing the items as envisaged in Article 14.4, the Seller shall refund their market value to the Buyer (which shall never exceed the purchase price charged to the Buyer) after deducting the costs associated with the repossession and deducting the payments which are due and outstanding by the Buyer to the Seller.
14.6. The Buyer may sell and transfer the items title to which has been retained to third parties during the normal course of its business.
14.7. All promotional materials which the Seller has made available to the Buyer to promote its products and/or brands shall remain the Seller's property and shall immediately be returned at the Seller's first request. Such promotional materials may not be sold and/or transferred to third parties.
Article 15. No Product Alterations
The Buyer may not alter (the notices affixed to) the products and packaging delivered.
Article 16. Liability
16.1. The Seller shall not be liable for any direct or indirect damage sustained by the Buyer in connection with any Agreement. whether or not caused by an employee of or third party engaged by the Seller.
16.2. The Seller shall never be liable for personal injury or consequential damage sustained by the Buyer in connection with an Agreement.
16.3. The Seller shall not be liable for damage suffered by third parties in connection with any infringement of their rights, including industrial and intellectual property rights.
16.4. Except as provided for in the present Article, the Seller's liability shall be limited to the amount paid out by the Seller's business liability insurer with regard to the damage caused.
16.5. With regard to items delivered by the Seller and originating from third parties, the Seller shall only be liable towards the Buyer to the extent that the third party in question has not limited or excluded its liability.
Article 17. Intellectual Property Rights
The Buyer shall subject all advertising activities that he conducts in respect of the Sellers articles, including seasonal campaigns, to the Seller's prior approval. This approval can only be withheld if the advertising activities may adversely affect the reputation and the image of the Sellers trademark and articles sold under that trademark. This does not affect the Buyer's right to determine the retail sale prices himself.
Article 18. Internet Sales
18.1. The Buyer may make sales of products or services purchased hereunder ("Products') on a website, on the Internet/World Wide Web or on any other electronic communication network the 'Internet) only if it complies with the following:
- at Seller's request, the Buyer shall provide the Seller with relevant information about the legal entity of the Buyer including but not limited to county of incorporation, financial
statements, direct and indirect shareholders and direct and indirect management;
- the Buyer shall only offer Products for sale on the Internet through its own website, under its own brand and using its own domain name;
- the Buyer shall not make or authorize sales of the Products on or through any third-party Internet sites, including without limitation, auction sites such as ebay.com, iOffer.com,
and alibaba.com and third party retail sites such as amazon corn and buy.com;
- the Buyer shall not sell pre-owned Products on its website;
- the Buyer shall not, without the prior written consent of the Seller, actively solicit orders for Products from customers which it believes or ought reasonably to believe will resell the
Products on the Internet (other than under the Buyer's brand and using the Buyer's domain name) or from customers that are reserved to the Seller or to other buyers or, If
applicable, from customers that are located outside a certain geographical area confirmed by the Seller;
- the Buyer shall maintain sufficient stocks of the Products to ensure that it can fulfill, within a reasonable period all orders that it receives over the Internet;
- the Buyers website's domain name must not contain or bear any resemblance to any trademark or other intellectual property right of the Seller;
- the Buyer's website must not have the look and feel of the Seller's official website at any given time;
- the Buyer shall not make any registration or publish any material on the Internet concerning the Seller and/or the Sellers business or which indicates or implies an association with
the Seller and/or the Seller's business except with the prior written consent of the Seller;
- the Buyer must demonstrate to the Seller that it has in place policies and procedures acceptable to the Seller to deal with acceptance and handling of returns, refunds and
exchanges of Products sold over the internet and to protect the security of its customers' personal data;
- at Seller's request the Buyer shall provide the Seller with detailed written information on consumer returns and re-sales in a manner described by the Seller;
- the Buyer shall not place any visuals, trademarks or other intellectual property rights of the Seller, including without limitation, pictures, campaign images and/or representations
of Seller's products ("Material") on the Buyer's website unless;
- Authorized to do so by the Seller under an express written license; and
- The Material strictly conforms with the Sellers standards and requirements and is approved in writing by the Seller before being posted on the Buyer's website.
- the Buyer shall ensure that its website does not include links to other third-party web sites or feature or allow advertisements, marketing or any other commercial and/or
third party exploitation of the Buyer's website that in the Seller's view may adversely affect the reputation and the image of the Seller, the Seller's trademark and/or articles
sold under that trademark.
Article 19. Governing Law and Choice of Forum and Domicile
19.1. The Agreements between the Buyer and Seller shall be governed by and construed in accordance with the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods, 11 April 1980, is explicitly excluded.
19.2. The parties irrevocably agree that any legal action arising out of or in connection with the Agreement ("Proceedings”) shall be referred to and finally determined by the competent Courts of Amsterdam, The Netherlands. If Ramatuelle is plaintiff in the Proceedings, and without prejudice of the aforesaid, Ramatuelle shall have the right in its sole discretion to refer Proceedings to and have them finally determined by the competent Courts of the country in which the Buyer resides. Each party waives any objection to Proceedings in such Courts on the grounds of venue or on the grounds that Proceedings have been brought in an inappropriate forum.
Article 20. Invalid Provisions
If any of these General Terms and Conditions should prove illegal, invalid, void or unenforceable, then
- such provision shall (to the extent it is illegal, invalid void or unenforceable) be given no effect and shall be deemed not to be included in the Agreement but without invalidating any of the remaining provisions of the Agreement; and
the parties shall use all reasonable endeavors to replace the illegal, invalid void or unenforceable provision by a legal, valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the illegal, invalid