GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT OF THE DUTCH FEDERATION OF LEATHER-GOODS AND BAG MANUFACTURERS

 

 

1              GENERAL

 

1              Definitions of terms used in the following general terms and conditions:

Supplier:    any member of the Dutch Federation of Leather-Goods and Bag Manufacturers who uses these terms and conditions and his representative(s), attorney(s), legal successor(s);

Other party:               any (legal) person who enters into an agreement with the supplier or asks us for a quotation or to whom we send a quotation and, in addition, his representative(s), assignee(s) and successor(s).

We/us:      the supplier.

2              These general terms and conditions are applicable to all our offers and all transactions done with us, of whatever nature and however named.

3              The present terms and conditions are likewise applicable to all agreements concluded with us for the implementation of which we are required to use the services of third parties.

4              The applicability of the terms and conditions used by the other party is expressly excluded where they conflict with the present terms and conditions.

5              By the simple fact of placing an order and/or receiving the goods supplied, the other party accepts these terms and conditions and is deemed to have agreed tacitly to the exclusive applicability of these terms and conditions regarding any orders submitted by him orally, by telegram, telex, internet or in any other way, irrespective of written confirmation on our part.

6              In the event of a dispute regarding the interpretation of these terms and conditions, the Dutch text shall prevail.

7              In the event of conflict between the text shown on our quotations and our general terms and conditions, the text shown on the quotations shall prevail.

 

2              OFFERS/QUOTATIONS

 

1              All offers made are without engagement except where specified otherwise in the offer. All price lists, brochures and other information supplied with our offer are stated as accurately as possible. This information is also binding only insofar as this is expressly stated.

2              In the case of a composite quotation, we are under no obligation to supply some of the goods contained in the offer for a corresponding portion of the price applicable to the whole.

3              Offers relate exclusively to the quantities specified in the quotation and do not automatically apply to repeat orders.

4              The fact of sending offers and/or other documentation does not oblige us to supply or accept the order.

5              We reserve the right to refuse orders without specifying reasons or to send goods on the basis of cash on delivery.

6              Where a sample, model or specimen has been provided or shown by us, it is deemed to have been provided or shown only as an indication and the characteristics of the items to be supplied may vary from the sample, unless it was expressly specified that the items supplied would be precisely in accordance with the sample provided or shown.

 

3              THE AGREEMENT

 

1              Agreements are binding upon us only following written confirmation by us or once we have begun to deliver in accordance with the order placed.

2              Agreements arising through the intermediary of our representatives/agents shall be binding upon us only when they have been confirmed by us or when we have begun to deliver.

3              Any additional arrangements or modifications shall be binding upon us only when they have been confirmed by us.

4              All agreements are entered into by us only on the essential condition that the other party - in our judgement alone - is found to be sufficiently creditworthy to fulfill the agreement.

5              We are entitled, at the time of entering into the agreement or thereafter and before fulfilling or continuing to fulfill the agreement, to require that the other party provide security that both payment-related and other obligations will be fulfilled.

6              We are authorised - if we deem so necessary or desirable - to contract third parties to execute the agreement properly, the costs of which will be passed on to the other party in conformity with the quotations provided. Where possible and/or necessary, we shall consult with the other party in this regard.

7              If the case of a call-off order, it shall unless otherwise agreed be taken off within six months, counting from the day on which the agreement is set down in writing. Failing this, the goods shall be available for collection from the first day of the sixth month and we shall be entitled to invoice. Moreover, from that moment the other party shall be liable to pay storage costs.

 

4              PRICES

 

1              Unless otherwise specified, all quotations are subject to changes in price.

2              Unless otherwise specified, our prices are:

-               based on the level of cost prices, wages, labour costs, social security and government premiums, freight charges, insurance premiums and other expenses applicable on the date of quotation or order;

-               based on delivery ex our premises, warehouse or other storage area;

-               exclusive of VAT, import duties, other taxes, charges and duties;

-               exclusive of the costs of packaging, loading and unloading, transport and insurance;

-               given in Dutch currency.

3              In the event of an increase in one or more of the cost-price factors, we are entitled to raise the order price accordingly, this with due regard to any relevant existing legal regulations, though with the proviso that future price increases that are already known must be stated when the order is confirmed.

4              In the event of a price change due to legal regulations, this is a circumstance by which both parties must abide.

 

5              DELIVERY AND DELIVERY DATE

 

1              Unless otherwise agreed, delivery is to the other party’s domicile/premises. The date of delivery is taken to be the moment when the goods leave our premises/warehouse.


Franco delivery is made only if and insofar as this is indicated by us on the invoice or otherwise.

 

2              The other party is obliged to check the consignment and/or the packaging immediately upon delivery for possible defects or damage or to perform this check following notification by us that the goods are at the other party’s disposal.

3              Any defects or damage in the consignment and/or packaging that may be present upon delivery shall be stipulated by the other party on the delivery note, the invoice and/or the transportation documents, failing which the other party is deemed to have approved the consignment. In this case, complaints concerning the consignment will no longer be dealt with.

4              Minor discrepancies in colour, model, etc. of a not uncommon nature in the industry are permissible, while discrepancies from the ordered quantity are permissible within a margin of 5%.

5              We are entitled to deliver in instalments (partial deliveries), which we may invoice separately; the other party is then obliged to pay in accordance with the provisions of article 13 of these terms and conditions.

6              The delivery date is always stated approximately unless expressly agreed otherwise in writing.

7              We are obliged to observe the delivery date as much as possible, but are in no way whatsoever liable if it is exceeded.

8              If we exceed the agreed delivery date by more than 1 week, the other party is obliged to grant us an additional subsequent delivery time of at least 2, though not more than 4 weeks (one week = 5 working days), beginning 1 week after the original delivery date has passed. After this, the other party is entitled to cancel in conformance with the provisions laid down in article 6.1.

9              If after the delivery date has passed the goods have not been taken off by the other party, they are at his disposal, for his account and risk.

 

6              CANCELLATION/FAILURE TO TAKE OFF

 

1              Cancellation by the other party of an order accepted by us is valid only if this is communicated directly to us by registered letter.

2              After we have agreed to the cancellation, the other party is obliged to reimburse us in any event for expenses incurred in executing the agreement and/or damage suffered or to be suffered as a result of the cancellation and for the loss of profits caused thereby, without prejudice to our other rights.


We are furthermore entitled to charge an additional amount equivalent to 15% of the sum to be invoiced by way of penalty.

 

3              If the other party refuses to take off a ready order within the applicable delivery period, the provisions stipulated in section 1 shall apply in full, provided that the goods are at the other party’s disposal and are delivered only when the other party has paid the entire principal plus interest and all storage costs and other expenses to be incurred by us, without prejudice to the provisions set out in article 13 of these terms and conditions.

 

7              TRANSPORT/RISK

 

1              Unless we are provided with more detailed instructions by the other party, the methods used for transport, dispatch, packaging, etc. will be determined by us with due diligence, though without us bearing any liability for this. Any specific wishes by the other party relating to the transport/dispatch will be complied with only if the other party has declared that he is willing to bear the additional expenses.

2              The dispatch of goods shall at all times, even where franco delivery has been agreed on, be carried out for the account and risk of the other party, including when the carrier insists that the clause that all transport damage shall be for the account and risk of the shipper appear on consignment notes, waybills and the like, unless an agreement to the contrary has been made.

 

8              FORCE MAJEURE

 

1              Force majeure is defined as:


Any circumstance that is independent of the will of parties or is unforeseeable, as a result of which the other party can no longer reasonably expect us to fulfill the agreement.
“Force majeure” shall in any event include:
strike, extreme levels of staff absence due to sickness, transport difficulties, fire, government measures, including in any event import and export bans, quota restrictions and interruption of operations on our premises or those of our suppliers, as well as default on the part of our suppliers or of third parties as a result of which we are unable or cease to be able to fulfill our obligations in respect of the other party.

 

2              We shall notify the other party as quickly as possible if in our view a force majeure situation occurs and confer with the other party regarding the period within which we shall resume performance. If the force majeure situation is of a temporary nature, we are entitled to suspend our performance for the period for which the force majeure situation continues.

3              If in our view the force majeure situation is of a permanent nature, parties may make an arrangement regarding the cancellation of the agreement and the consequences attaching thereto.

4              We are entitled to demand payment for the activities performed in executing the agreement in question before the situation resulting in force majeure became evident.

5              We are also entitled to claim force majeure when the situation giving rise to force majeure takes place after our performance should have been carried out.

 

9              LIABILITY

 

Subject to the general legal rules of public order and good faith, we are not obliged to make any reimbursement for direct or indirect damage of whatever nature, including consequential loss, to movable or immovable property or to persons, both on the premises of the other party and on those of third parties.


We are in any event not liable where:
-            damage is caused by the use/processing of the consignment;

 

-               the consignment is processed into/incorporated in a (final) product for which it is and/or proves to be not in fact suitable;

-               the consignment proves to be unsuitable for the purpose for which it was purchased.

The above does not apply in the case of intent or gross negligence, to be proved by the other party, on the part of us or of our subordinates, insofar as the latter act in accordance with our express instructions.

Any liability on our part shall on no account exceed the net value of the goods supplied.

2              Once the goods supplied have been received without complaints or have been processed into (final) product by or on behalf of the other party, we can in no way whatsoever be held liable and the other party indemnifies us against all possible claims from himself and/or from third parties for payment of compensation, regardless of the cause of damage.

3              This liability limitation applies if and insofar as our liability insurers do not grant coverage in respect of damage caused to the other party and/or to third parties.

 

10            COMPLAINTS

 

1              Complaints shall be dealt with by us only if they have reached us-directly- in writing within 8 days of delivery of the articles concerned, including an accurate statement of the nature and basis of the complaints

2              Complaints relating to invoices should also be submitted in writing within 8 days of the date on which the invoice was sent.

3              At the end of this period, the other party is deemed to have approved the consignment or invoice and after this we will no longer deal with complaints.

4              If the complaint is found by us to be justified, we are obliged to replace only the defective goods, without the other party being able to assert any right to any compensation whatsoever.

5              The fact of submitting a complaint shall on no account relieve the other party of his payment obligations in respect of us.

6              The consignment may be returned only following prior written approval by us and on the conditions to be stipulated by us.

 

11            RESERVATION OF TITLE

 

1              All goods supplied by us remain our property until the moment of full payment of all debts owed us by the other party, for whatever reason, including future claims against the other party, including interest and costs (and where delivery is made on a current-account basis, up to the moment of settlement of any outstanding balance owed by the other party).

2              In the event of non-payment of an outstanding sum, suspension of payment, institution of insolvency proceedings, bankruptcy, receivership, death or liquidation of property of the other party, we shall be entitled, without serving notice of default and without involving the courts, to cancel the order or the part thereof not yet delivered and to claim back any goods delivered, but not or not fully paid for, as being our property, with any payments already made being set off, though without prejudice to our rights to demand reimbursement for any loss or damage. In such cases, any claim we have against the other party is immediately and directly payable.

3              The goods may be resold or used by the other party in the context of his normal business operations, though may not be provided as security or collateral for a claim from a third party.

4              In the case of resale, the other party assigns now, for the future eventuality, all rights/claims in respect of the third-party purchaser to us. The other party is obliged at the first request by us to make available all relevant details relating to the third-party purchaser and terms and conditions of sale (prices). As long as the other party promptly fulfills his obligations, the supplier is not entitled to notify the third-party purchaser of this assignment. If the other party fails to fulfill his obligations promptly, we are entitled to notify the third-party purchaser of this assignment, whereupon the third-party purchaser can only pay us/the supplier by way of discharge.

5              As security for correct payment of all our claims, of whatever nature, we furthermore acquire title to security -arising from the coming into being of the claim- on all goods that we have supplied to the other party and which are still in his possession.

 

12            COPYRIGHTS

 

1              The supplier continues to be the owner of the rights of such intellectual property as the copyright and/or the model right in respect of illustrations, drawings designs, models, computations, calculations and other descriptions, including catalogues or prospectuses relating to the items delivered.

2              The other party is not permitted without written consent from the supplier to use the rights referred to in section 1, in the broadest sense of the word, including - though not restricted to - the making of reproductions.

3              The other party indemnifies the supplier against any action by third parties that is based on infringement of the right of intellectual property in respect of an order placed with him by the other party.

 

13            PAYMENT

 

1              Unless otherwise agreed, payment shall be effected net cash upon delivery without any discount or set-off or by deposit or transfer into a bank or giro account designated by us within 30 days of invoice date.


The value date shown on our bank/giro statements shall be taken as the payment date.

 

2              Any payment from the other party is first in settlement of the interest owed by him and of the collection charges and/or administrative expenses incurred by us and following this is deducted from the oldest unsettled claim.

 

14            REPUDIATION

 

1              If customer fails to meet his obligations arising from an agreement concluded with us or fails to meet them on time, we are entitled to repudiate the relevant agreement or all agreements concluded with customer by a single written notification and without notice of default being served, without any involvement by the courts being required, without prejudice to our rights, particularly our right to full compensation, including the expenses incurred, both judicial and extrajudicial.

2              If the other party:

a              is declared bankrupt, surrenders property, institutes insolvency proceedings, applies for application of the Natural Persons Debt Restructuring Scheme or is faced with seizure of all or part of his property;

b              dies or is put into receivership;

c              fails to fulfill any obligation resting upon him by law or arising from these terms and conditions;

d              fails to settle an invoice amount or part thereof within the period stipulated therefor;

e              ceases or transfers his operations or a substantial portion thereof, including transferring his operations to a future or existing company, or modifies the object of his company,

we are entitled, through the simple fact of one of the aforementioned circumstances taking place, either to treat the agreement as being at an end, without any involvement by the courts being required, or to claim in full and at once any amount owed by the other party on the basis of the activities and/or deliveries performed by us, without any warning or notice of default being required, all of the above without prejudice to our right to receive reimbursement of expenses, damages and interest.

3              In the circumstances as referred to in section 2, we are entitled to repudiate the entire agreement or a portion thereof, as determined by us.

4              Once we have invoked the repudiation, our claim, plus interest, damages and expenses, is payable immediately and in full.

 

15            INTEREST AND EXPENSES

 

1              If payment has not been effected within the period stipulated in article 13, the other party is legally in default and from the invoice date is liable to pay interest equal to the legal interest rate on the outstanding amount.

2              All judicial and extrajudicial expenses to be incurred are for the account of the other party. The extrajudicial collection expenses are at least 15% of the amount owed by the other party, including the aforementioned interest.


On no account shall we be required to prove the reasonableness of the sum claimed by reason of the above relating to extrajudicial expenses.

 

 

16            PROPER LAW OF THE AGREEMENT

 

1              Dutch law shall apply exclusively to all our offers, agreements and the performance thereof, in any event where it varies from the UNITED NATIONS TREATY relating to INTERNATIONAL CONTRACTS OF SALE concerning MOVABLE PHYSICAL GOODS (U.N. Sales Treaty, Trb. 1981, 184 and 1986, 61).

 

17            DISPUTES

 

1              All disputes, including those that are regarded as such by one party only, that arise from or are related to the agreement to which these terms and conditions apply or the relevant terms and conditions themselves and their interpretation or implementation, both of a factual and of a judicial nature, shall be settled by the Civil Court with jurisdiction within our area of domicile, such insofar as the legal provisions so permit.

2              The provisions laid down in section 1 are without prejudice to our right to submit the dispute to the Civil Court with jurisdiction under the normal rules of competence or to have it settled on the basis of arbitration or binding advice.