GENERAL TERMS AND CONDITIONS OF SALE
drawn up for the benefit of the members of the Royal Association of Dutch Wine Merchants. A publication of the association possessing legal personality, established in Amsterdam, registered with the Chamber of Commerce and Industry in Amsterdam under number V 40530553. The text below applies from [July 2013]
(These terms and conditions have been filed with the District Court in Amsterdam under number: 44/2008)
GENERAL TERMS AND CONDITIONS OF SALE OF THE ROYAL ASSOCIATION OF DUTCH WINE TRADEMARKS
Article 1: Definitions
In these terms and conditions the following definitions apply:
seller: the producer, importer, distributor, wholesaler or retailer of wine or spirits, who concludes a sales agreement for wine or spirits or related articles with a buyer;
buyer: the buyer who concludes a purchase agreement for wine or spirits or related articles with the seller;
the contract goods: wine, spirits, packaging or related articles, which are sold by the seller to the buyer or whether or not made available free of charge;
presale: The sale of wines that have not yet been put on the market at the time of the conclusion of the agreement; * consumer: the natural person who does not act in the exercise of his profession or business;
working days: all days of the week except Saturdays, Sundays and legally recognized holidays;
in writing: communication by letter, fax and e-mail.
Article 2: Application of these conditions
Unless otherwise agreed in writing, these terms and conditions apply to every sales agreement (hereinafter: "the agreement") between the seller and the buyer. This applies if the goods to be delivered under the agreement are delivered to the buyer directly by the seller or by or through the mediation of third parties.
The buyer is obliged towards the seller to stipulate by way of perpetual clause in the event of resale or resale of the contract goods in favor of the seller that the buyer has the same rights and obligations towards the seller, insofar as applicable, as the buyer has towards the seller in articles 9, 12 and 13.
These terms and conditions apply to all agreements concluded between seller and buyer. The seller will make these terms and conditions available to the buyer before concluding the agreement.
These conditions also apply if they have been applicable to a previous agreement between the seller and the buyer, unless the seller has expressly waived their applicability.
Seller reserves the right to change and/or supplement these terms and conditions. If it concerns a material change, the buyer will be notified in writing by the seller. Unless the buyer objects in writing within 2 weeks after the date of sending the written notification, the buyer is deemed to have tacitly agreed to the change or addition.
The buyer is not permitted to transfer rights and obligations under these terms and conditions to third parties without the prior written consent of the seller.
These terms and conditions override any terms and conditions of the buyer, even if buyers reach the seller's terms and conditions after the buyer has received them from the seller
Article 3: Quotations, offers, price lists
; Quotations, offers and price lists of the seller are without obligation.
In the case of a firm offer, it will be in force for such a period as stated by the seller; if it is not stated, it expires after a period of one month.
Article 4: Formation of an agreement
The agreement is concluded by the explicit acceptance by the buyer of a final offer from the seller.
The agreement is also concluded if the seller has not notified the buyer in writing that he does not accept the order no later than on the eighth working day after the working day on which he became aware of an order.
The provisions of this article also apply to presales.
If the agreement is concluded electronically and the buyer is not a consumer, the seller is not obliged to send an acknowledgment of receipt of the explicit acceptance to the buyer.
Article 5: Intellectual property rights
< br> All intellectual property rights to the products sold by the seller or other materials made available to the buyer in the context of these terms and conditions are vested in the seller or its suppliers.
Copying, distribution and any other use of these materials is not permitted without written permission from the seller, except and only insofar as stipulated otherwise in regulations of mandatory law.
The buyer is not permitted to register the brand names, trade names and/or other indications of the seller or its suppliers as a brand name, domain name, social media account or otherwise as belonging to him without the prior written permission of the seller.
Article 6: Prices and discounts
The prices and discounts used by the seller are the prices and discounts stated in the price list in force on the day of the conclusion of the agreement or as otherwise agreed on that day.
The prices charged by the seller are, unless agreed otherwise, "ex seller", including excise duties, taxes, import duties, other levies and packaging and excluding turnover tax.
If the buyer is a consumer, the seller will state the prices it charges including sales tax, other levies, any freight, delivery and/or postage costs and any other costs. If the price and any additional costs cannot be calculated in advance, the seller will indicate the way in which the price and costs are calculated.
Seller has the right to increase the agreed contract prices due to increases or surcharges on the
import duties,
excise,
packaging/environmental taxes,
other taxes,
levies of public organizations,
other levies,
freight rates,
transport costs and insurance premiums of the contract goods and raw materials required for the production and transport of the contract goods. The same also applies in the case of legal regulations, which lead to abnormal risks for the sector.
The seller will inform the buyer of the price increase as soon as possible. The buyer has the right to cancel the order, provided this is done in writing within 8 days after notification of the price change.
If the buyer resells the delivered contract goods, he is obliged to use the recommended prices and any associated quality designations as provided by the seller in any form of publication and/or advertising.
Article 7: Payment
Unless cash payment or cash on delivery has been stipulated, the invoice amount of the contract goods must be paid net in cash at the office of the seller or to the bank account specified by the seller within 20 working days after the invoice date.
If the buyer is a consumer, he can only be obliged to pay in advance (payment before delivery of the contract goods) not exceeding half of the purchase price. This exception does not apply if the seller also offers the buyer a payment option that includes post-payment (payment after delivery of the contract goods).
If the buyer does not meet his payment obligation(s), the seller is entitled, without prejudice to the provisions of Article 18 and without prejudice to the right to compensation on the basis of the law, to compensation of interest and administration costs.
The interest payment is equal to the statutory commercial interest plus 4%. This compensation will be calculated on the amount that remains unpaid after the payment term referred to in a. and over the period by which the payment term referred to in a. is exceeded. The reimbursement of the administration costs amounts to 2% of the gross invoice value. If the buyer is a consumer, the statutory interest will apply instead of the statutory commercial interest.
The amount owed by the buyer is immediately due and payable without notice of default if one or more of the following cases occur:
the bankruptcy of the buyer or buyer's application thereto;
a request from the buyer for suspension of payment;
placing under guardianship of the buyer;
death of buyer;
fitting under copper;
(a decision to) liquidate or alienate buyers' companies;
the buyer does not, not properly or not timely fulfill one of its obligations arising from the agreement.
The seller may first use payments from the buyer to settle unfulfilled payment obligations from an earlier date towards the seller or towards any company affiliated with the seller.
Any counterclaims of the buyer against the seller or any company affiliated with the buyer, for whatever reason, may not be set off against the seller's claims.
If a partial item of the invoice amount is not due, the buyer must pay the due part of the invoice amount with due observance of the other provisions of this article.
The seller may invoice orders that are executed in parts per partial delivery. If the buyer does not comply with any provisions of these terms and conditions, all claims of the seller against the buyer, for whatever reason, will become immediately due and payable without notice of default being required.
Article 8: Delivery
Delivery takes place "ex seller", unless agreed otherwise.
If delivery "carriage paid to buyer" has been agreed, the following provisions apply:
The seller has the choice of the means of transport with which the contract goods will be delivered to the delivery address.
The risk of the contract goods is transferred at the moment that they are delivered carriage paid to the buyer from the means of transport referred to in b.1.
Free delivery of the contract goods to the buyer shall be made to the delivery address specified by the buyer or to the extent that the means of transport referred to in b.1 can reach the driver's sole discretion. If the buyer refuses to take delivery of the contract goods there in the latter case, the costs incurred as a result, for whatever reason, will be borne by the buyer. The risk in the contract goods nevertheless passes to the buyer at that time.
Free delivery does not go beyond placing on the unloading platform or directly over the threshold of the agreed delivery address.
When the contract goods are delivered free of charge, the buyer shall, at his own expense, assist in unloading the cargo (for example, by providing mechanical aids such as forklift trucks with drivers).
Delivery takes place during normal working hours for the seller.
Agreed delivery times are target times. After If the agreed delivery time is exceeded, the buyer is entitled to give notice to the seller and the seller must deliver within a reasonable period of time after the day of the reminder. If the buyer is a consumer and no delivery time has been agreed, the seller will deliver the contract goods within thirty days after the conclusion of the agreement.
Seller may deliver the contract goods in partial lots.
The buyer is obliged to take receipt of the delivered contract goods at the first offer. If the buyer does not comply with this, all resulting costs will be charged to the buyer.
If the buyer is a consumer, the contract goods are at the buyer's risk from the moment that the buyer or a third party designated by him, who is not the carrier, has received the contract goods, unless the buyer himself has appointed a carrier and this choice is not offered by the seller. In that case, the risk on the contract goods is already transferred at the moment that the seller hands over the contract goods to the carrier.
Article 9: Complaints
The buyer must notify the seller in writing of complaints regarding the contract goods immediately after he has reasonably established defects, but in any case within ten days of delivery. In doing so, the buyer must provide an accurate statement of the nature and grounds of the complaint and of the relevant invoice.
If the buyer is a consumer, the following applies. The delivered item must comply with the agreement. If this is not the case, the legal guarantee scheme from the Civil Code applies.
Contrary to a., in the case of carriage paid delivery, visible damage to or a visible loss of the contract goods during transport to the agreed delivery address must be established in writing by or on behalf of the buyer on the transport document in the presence of the driver of the means of transport referred to in 7b. The buyer must immediately send a copy thereof to the seller.
The buyer must give the seller - insofar as this can reasonably be expected of him, but in any case not less than twenty working days after the complaint - the opportunity to report missing, size differences or damage on the basis of the contract goods in their original condition and original packaging. to (have) determined. However, if the buyer has meanwhile fully or partially modified or processed or resold the contract goods, then any right to complaint and compensation will lapse.
Complaints do not entitle the buyer to suspend his payment obligation(s). e. If the seller considers a complaint to be well-founded, the seller shall, at his option, either pay compensation up to the invoice value of the relevant contract goods or replace the relevant contract goods free of charge. The seller is not obliged to pay multiple damages and to pay compensation for indirect damage (whether or not suffered by the purchasers of the buyer). This liability of the seller does not apply to sales to consumers.
With regard to advertising, each partial delivery is regarded as a separate delivery.
Delivered goods can only be returned free of charge at the buyer's risk after written permission for the return from the seller. If the seller credits the buyer in this connection, fifteen percent will be deducted from the net invoice amount. This return shipment must be made carriage paid to the seller's address within five working days after obtaining permission. Buyer must ensure careful packaging and shipping. For consumers, if the purchase was made electronically, the provisions of article 10 apply.
Article 10: Right of withdrawal
Contract goods, if ordered electronically by and delivered to consumers, are subject to the statutory right of withdrawal. The consumer has fourteen days, counting from the date of delivery of the complete order, to cancel the agreement concluded with regard to the contract goods without giving reasons. dissolve.
Consumers exercise the right of withdrawal described above by sending the completed model form, which can be found on the seller's website, to the seller within the period of fourteen days, or by making another statement to the seller to terminate the agreement.
The right of withdrawal does not apply to contract goods that spoil quickly or that have a limited shelf life, and the right of withdrawal does not apply to the delivery of alcoholic beverages, the price of which was agreed when the consumer purchase was concluded, but the delivery of which can only take place after thirty days, and whose actual value depends on market fluctuations beyond the trader's control.
The consumer must return the contract goods that are subject to dissolution to the seller as soon as possible, but no later than fourteen days from the day following the day on which the notification referred to in paragraph b was made. The consumer bears the direct costs of returning the contract goods.
After dissolution of the agreement, the seller will immediately reimburse, but no later than fourteen days after the day on which the notification referred to in paragraph b of this article has been received by the seller, all payments that the seller has received from the consumer in this context. The costs will be reimbursed by the seller in the same way that the seller obtained them from the consumer.
The burden of proof for correct and timely exercise of the right of withdrawal rests with the consumer.
Article 11: Retention of title
All contract goods remain the property of the seller after delivery, until the buyer has fulfilled all its obligations towards the seller in consideration for all deliveries (now or in the future) from the seller to the buyer or in respect of other work performed by the seller for the buyer under any agreement between buyer and seller or the payment of compensation for non-compliance with the aforementioned agreements, including interest, costs and penalty.
The buyer is obliged to store the goods delivered under retention of title with due care and as recognizable from the seller.
As long as all his obligations as described in paragraph a have not been fulfilled, the buyer may not transfer ownership of the contract goods to third parties other than in the context of the normal course of his business, nor pledge the contract goods to third parties as additional security.
The buyer must immediately notify the seller of any claims or attempts by third parties to seize or seize contract goods subject to the seller's retention of title and must immediately confirm this in writing to the seller.
The buyer gives the seller permission at all times (i.e. also outside the buyer's normal working hours) to enter the space(s) where the contract goods are located in order to take possession of the contract goods and to take them with him by invoking his retention of title. take.
At any time desired by the seller, the buyer must provide further security for the correct fulfillment of its obligations towards the seller.
The buyer must, at his own expense, properly insure the contract goods subject to retention of title against normal business risks and provide the seller with the relevant insurance policies upon first request.
Article 12: Pallets
< br> Upon delivery of the contract goods, the buyer must return used pallets free of charge to the seller within twenty working days at his own risk.
The ownership of these pallets always remains with the seller.
Article 13: Force majeure/unforeseen events and other circumstances
The Seller may postpone the delivery of the contract goods without compensation in the event of force majeure or if reasonably unforeseen events and circumstances make it impossible for it to fulfill current orders on time without additional provisions or efforts. In that case, he may also use the dissolve the agreement in whole or in part without judicial intervention and without compensation. Even in the event of a temporary suspension, the seller will still be entitled to declare the agreement dissolved in whole or in part if it is unable to deliver due to force majeure or unforeseen events or circumstances.
Force majeure or events and circumstances as referred to in a. include:
state of war and martial law in both the formal and material sense,
civil war,
riot,
mobilization,
employee actions of any kind,
(road) blockades,
exclusion of employees,
sudden business disruptions,
sudden excessive illness of staff,
non-timely or defective delivery of raw materials and auxiliary materials, end products and packaging materials,
government regulations,
refusal or failure to obtain an import permit or other necessary government permission,
making imports or exports more difficult by governments or third parties,
fire,
extreme weather conditions (such as frost, extreme rainfall, storm),
flood,
failure in the supply of energy,
machine defects.
Should the force majeure situation last so long that the buyer can no longer reasonably demand performance from the seller, then each party can dissolve the agreement without judicial intervention and compensation by means of a single written statement for the future.
The so-called 'change of ownership' clause applies to this agreement, which means that the seller has the right to terminate the delivery if the purchasing company changes ownership or significant changes in management occur.
Article 14: Seller's liability
The seller's liability is expressly limited to the provisions of article 8.e, except in the event of additional damage as a result of intent or gross negligence on the part of the seller or his managerial subordinates.
The seller is never liable for any "further" damage, including consequential damage, and the seller is therefore not obliged to compensate trading loss, loss of profit, damage as a result of personal accidents, damage resulting from claims by third parties against the buyer or any other damage whatsoever. The buyer indemnifies the seller against all claims from third parties related to goods delivered by the seller to the buyer.
In the event of damage as a result of a defect in the product as referred to in Articles 6:185 and following of the Dutch Civil Code, the seller will provide the buyer with the necessary information from the producer of the product. The buyer is obliged to file a claim with the producer unless the seller must be regarded as the producer on the basis of Section 6:187 of the Dutch Civil Code.
In the case of sales to consumers, the limitation of the seller's liability does not apply.
Article 15: Trading method
The buyer must only return the contract goods in the original packaging provided by the seller. in an unaltered and undamaged condition. It is the buyer's responsibility to have written permission thereto from the seller received, however, it is permitted to trade individually the contract goods that have been delivered in bulk packaging, provided that the individual products are traded in their original packaging, originating from the seller, in an unaltered and undamaged condition. For each violation of the obligations referred to in this article, the buyer forfeits an immediately due and payable fine of Euro 5,000 to the seller, which is not subject to compensation or discount. In view of this, the seller does not have to give the buyer notice of default. In addition to this penalty, the seller is entitled to compensation and may dissolve the agreements with the buyer with immediate effect.
Article 16: Publicity and promotional material
The publicity and promotional material, that the seller makes available to the buyer, whether or not free of charge, in support of the sale of the contract goods or of future contract goods, shall at all times remain the property of the seller. At the first request of the seller, the buyer must return this carriage paid and at the buyer's risk to the seller's office address in an intact and unaltered condition.
Article 17: Internet sales
For sales to consumers via the internet ( both, but not limited to, on the PC and via tablet and mobile phone) the legal rules for distance sales apply.
Article 18: Nullity, voidability
The nullity , voidability or unreasonably onerous encumbrance of one or more of the provisions of the agreement(s) between seller and buyer or of these conditions does not lead to the nullity, voidability or unreasonably onerous encumbrance of the agreements between seller and buyer or these conditions in their entirety. .
Article 19: Applicable law and disputes
Only Dutch law applies to these terms and conditions and to the agreement(s) in which reference is made to them.
All disputes related to these terms and conditions and the agreement(s) in which reference is made to these terms and conditions will, in the first instance, to the exclusion of any other court, be submitted to the competent court of the seller's actual place of business, unless the buyer has after the seller has invoked this clause in writing against him, the competent court according to the law chooses for settlement of the dispute, unless the buyer is a consumer, then the competent court based on the applicable law has jurisdiction.
; Without prejudice to the provisions in b. the buyer and the seller may agree that a dispute between them or between the seller and the legal successors under universal or special title of the buyer arising from their agreements and these terms and conditions and further agreements and conditions that may result therefrom shall be settled in the highest instance and to the exclusion of the ordinary court will be decided by arbitration according to the regulations of the Netherlands Arbitration Institute.
Article 20: Judicial and other costs
All judicial and extrajudicial costs, which the seller must reasonably make to enforce compliance with these terms and conditions and the agreement(s) in which reference is made to these terms and conditions, shall be borne by the buyer. Consumers only owe these costs after they have been demanded to do so by the seller.
