GENERAL TERMS AND CONDITIONS
Ontwerpstudio GuyZen, registered with the Chamber of Commerce under number 55928803, hereinafter referred to as: the ‘user’.
ARTICLE 1: APPLICATION
1.1. Ontwerpstudio GuyZen primarily performs trade activities within its capacity as a design studio, including the management of the production and manufacture of leather goods for retailers in the apparel industry.
These general terms and conditions apply to all quotes issued and agreements closed by the user and all other parties, whether natural persons or legal persons, with or by whom Ontwerpstudio GuyZen is directly or indirectly associated or represented.
1.2. Any departures from the provisions of these general terms and conditions will be presented to client in writing prior to closing of the agreement. If no departures have been presented to client, these general terms conditions will apply in full. The general terms and conditions will remain applicable indefinitely unless otherwise agreed in writing and/or in the event that new general terms and conditions are made available.
1.3 Changes or amendments to these general terms and conditions will be presented to the client as in a written appendix and apply only to the referenced changes or amendments to specific provisions.
1.4. The applicability of any general terms and conditions adopted by the counterparty is expressly denied in observance of the provisions of article 1 paragraph 3.
ARTIKEL 2: QUOTES AND AGREEMENTS
2.1. Quotes issued by the user will remain valid for one week following their issue.
2.2. In the event that user has produced samples as per request of the counterparty, and where an agreement is not closed, the user is entitled to compensation for associated incurred expenses.
2.3. An agreement is deemed closed upon the acceptance by the counterparty of the user’s quote, or if the counterparty submits an order. The user can establish proof of a closed agreement in various manners.
2.4. Any and all information, pricing materials, promotional materials, etc. as submitted by the user within the scope of the quote will remain the property of the user in the event that an agreement is not closed, and must in that case be returned to the user by and at the expense and risk of the counterparty. The user retains all rights regarding ownership of these goods.
2.5. Any and all materials submitted by the user within the scope of the quote may not be processed, modified, reproduced, published or made available to any third party in any manner, or put to any further use without the explicit prior written permission from the user.
2.6. Any and all information, including statements regarding pricing and quality, samples (prototypes), promotional materials, etc. will not be returned or kept by the user, unless otherwise requested by the counterparty in writing prior to the establishment of the quote or the closing of an agreement.
2.7. All prices given in the quote do not include turnover tax, unless explicitly stated otherwise.
2.8. The counterparty assumes responsibility for information, specifications, calculations, etc. as provided by him. Production of goods will take place in accordance with the specifications provided to the user prior to the execution by the counterparty. Errors or faults as a result of provided information, specifications, calculations, etc. and/or (an) inaccurate representation(s) of specifications will in no case lead to any culpability/ liability on the part of the user.
2.9. The counterparty/ client indemnifies the user against all claims (including third party claims) arising as a result of information, samples, prototypes, images, etc. provided by the counterparty/ client.
2.10. With respect to assignments regarding the purchase of private label products, additional conditions apply with respect to intellectual property, prototypes, production practices, pricing and terms of delivery.
ARTICLE 3: PRICES AND PRICE CHANGES
3.1. Article 2 paragraph 7 shall remain in force regardless of price changes.
3.2. In the event of changes to one or more cost price factors in the time between the closing and the performance of the agreement, the user retains the right to increase the agreed prices.
3.3. The user will inform the counterparty in writing and in a timely fashion in the event that he wishes to exercise his right to implement a change to prices as specified in the above paragraph.
3.4. In the event that the counterparty does not agree to the proposed price change, as provided in writing, the user is entitled to dissolve the agreement. This dissolution will apply exclusively to the goods for which the increase in price was proposed.
3.5. Unless explicitly agreed otherwise, all prices will be given in Euro.
3.6. All agreed prices include the costs of insurance, shipping, rent, packaging materials, loading and unloading, storage and packaging, which in principle will be for the expense of the user. If the cash value of an order is less than € 500.00 excluding VAT, the aforementioned costs will be charged in full to the counterparty.
ARTICLE 4: DELIVERY AND RISK
4.1. Production of the ordered goods will start no sooner than following (partial) payment by means of a transfer into the bank account of the user. The counterparty acknowledges that delayed payment may subsequently delay the expected delivery date. The user undertakes to fulfil delivery within four weeks of the start of production, unless otherwise agreed. This is an obligation of effort.
An overrun of the term within which delivery is due will in no case lead to liability of the user for direct or indirect consequences related to the delivery in question.
Without prejudice to the aforementioned, the delivery can, if and where required, exclusively be made when the user has at his disposal all information, permits, licenses, instructions, documents, exemptions, allowances and deliveries needed to produce and ship the goods in question.
4.2. Written notice to the counterparty of delivery delays will be given by the user as soon as possible without further explanation but will include the expected duration of the delay. Any dissolution of the agreement will concern only those goods that cannot be delivered within the (modified) delivery term.
4.3. Unless explicitly agreed otherwise, the user is entitled to deliver his goods in stages, where each delivery will be invoiced separately. In the event that the cash value of this partial delivery does not exceed the cash value specified in article 3.6, and the cash value of the complete order does exceed this amount, the costs for partial delivery are for the expense of the user.
4.4. The user retains the right to proceed with early delivery of goods only after mutual deliberation and to subsequently also proceed with early invoicing of the amount due for this delivery. The applicable payment term of this invoice will be in accordance with the provisions of article 9 paragraph 1.
4.5. The counterparty is obliged to accept delivery of the goods he has ordered within five days following notice from the user that he intends to deliver the goods in question.
4.6. The risk of loss, damages or the full or partial destruction of the deliverable goods is borne by the counterparty from the moment of delivery or, as the case may be, the moment and the location at which delivery is due to take place pursuant to the agreement.
4.7. In the event that the counterparty fails to accept (timely) delivery of the goods, or fails to accept delivery of the goods in the specified location as a result of his failure to cooperate or another impediment on the part of the counterparty, the counterparty shall be in default by operation of law and the user shall be entitled to remove the goods at the time when and from the location where delivery was to take place and to transport these goods and store them at a location at the discretion of the user.
4.8. In that event, the user shall be entitled to compensation for damages suffered. This compensation shall amount to at least 25 % of the net invoice amount, without prejudice to the right of the user to demand full compensation for suffered damages.
4.9. In the event that the goods, after having been offered for delivery, have not been accepted by the counterparty, the user is entitled to dissolve the agreement to which the delivery is pursuant after three days without further judicial intervention and is furthermore entitled to sell or take possession of the deliverable goods. In that event, the counterparty shall owe compensation for loss of profits and all related incurred expenses. This compensation shall amount to at least 50% of the net invoice amount, without prejudice to the right of the user to demand full compensation for suffered damages.
4.10. Goods delivered by the user must be checked by the counterparty for their number, nature, type and quality immediately following delivery. Complaints concerning a fault or error regarding the number, nature, type and quality of the goods cease to be legally valid five days after delivery.
4.11. Return shipments of goods delivered by the user will be accepted only after written agreement thereto by the user. Return shipments are at the full expense and risk of the counterparty unless expressly agreed otherwise. The return shipment to the user must be expedited within 48 hours of a complaint lodged by the counterparty.
ARTICLE 5: RETENTION OF TITLE
5.1. As security for the accurate and complete fulfilment of the obligations of the counterparty, all goods will remain the property of the user until the counterparty has fulfilled all obligations pursuant to the agreement.
Obligations include the financial obligations of the counterparty toward the user regarding:
a. the goods delivered pursuant to this agreement;
b. all work to and processing of goods undertaken by the user for the counterparty pursuant to this agreement;
c. his obligation to fulfil full payment of invoices due; the claims due to default on performance of this agreement;
5.2. In the event that the user has outstanding claims on the counterparty for which a retention of title applies, in addition to claims on the counterparty for which a retention of title does not apply, payment by the counterparty will first serve to fulfil payment of amounts due regarding the claim for which a retention of title does not apply.
5.3. In the event that payment of amounts due is fulfilled for goods subject to retention of title, the user retains the right, where he deems necessary, to establish a non-possessory lien on those goods of which he has transferred title as security for payment of current and future claims of the user on the counterparty. In that event, the counterparty is obliged, subject to a penalty of 50% of the net invoice amount of the delivered goods for which a retention of title applies, to cooperate with the establishment of this non-possessory lien.
5.4. As long as title of the delivered goods has not been transferred to the counterparty, the counterparty is prohibited from transferring or encumbering with any attachments or claims these goods under any title. As long as title has not been transferred to the counterparty he will take prudent care of these goods and will maintain these as clear property of the user. Any trademarks or other identification codes on, in or with the goods must remain clearly visible.
5.5. As long as title of the delivered goods has not been transferred to the counterparty, the counterparty is obliged to store the goods, in the event that this is exclusively determined by type and weight, separately, under appropriate conditions and in a manner that is clearly recognizable.
5.6. As long as title of the delivered goods has not been transferred to the counterparty, the counterparty is permitted to modify and process and sell these goods to third parties within the scope of his business operations, where in the event of sale he must, respectively: clearly retain title of these goods, or immediately fulfil payment of the purchase price due to the user, or grant the user, upon his first request thereto, a right of lien on his claim on his client.
5.7. The user is entitled to repossess the goods subject to retention of title in and in so far as the counterparty defaults on any of his obligations toward the user, or if the user has determined, at his own discretion, that the counterparty is suffering payment problems.
5.8. The counterparty grants the user an irrevocable power of attorney to, where and when called for, enter the commercial building(s) of the counterparty or to assign a third party to enter the commercial building(s) of the counterparty in the event that he wishes to take repossession of the delivered goods or in the event that he wishes to confirm the presence of these goods in that/ those commercial building(s).
ARTICLE 6: QUALITY AND GUARANTEE
6.1. The user guarantees the soundness and the agreed quality of the delivered goods at the time of their delivery. If goods do not meet the agreed quality level, yet exclusively where the counterparty demonstrates that the fault to the delivered goods is caused by incorrect manufacture, construction or processing of the delivered goods or due to the utilization of defective materials and resources by the user, these goods will be taken back from the counterparty by the user.
6.2. Faults that are partially or completely due to processing prescribed by the counterparty or a result of the manner of storage, production, construction or manufacture prescribed by the counterparty or prescribed by a supplier, advisor, subcontractor or assistant of the counterparty, are not subject to this guarantee.
6.3. The guarantee does not apply to faults that are fully or partially traceable back to:
a. incompetent treatment by the counterparty;
b. incorrect storage by the counterparty, as a result of which the delivered goods are subjected to the influence of moisture, pollution, contamination, mold, aridity, high and low temperatures, shocks and tremors or an excessive period of storage;
c. loss/wear and tear which is not excessive in respect of the use of the goods as foreseen by the user;
d. the use, processing, handling of the delivered goods other than in accordance with the guidelines and specifications provided by the user or other than the intended use for the purpose of which the goods were delivered;
e. compliance with any government regulations.
6.4. The guarantee does not apply in the event that the counterparty has modified or processed the goods or made the goods subject to processing or treatment, other than in accordance with the guidelines and specifications provided by the user or other than the intended use for the purpose of which the goods where delivered.
6.5. If and in so far as the delivered goods are subject to any guarantee given to the user by a supplier, the guarantee provided by the user shall never exceed the guarantee given by the supplier.
6.6. The user is entitled, at his discretion, to either repair the fault to the delivered goods or replace the delivered goods in full. He can, at his discretion, also fulfil his guarantee obligations by means of a full refund of the purchase price.
6.7. In the event that the user undertakes full or partial replacement of the delivered goods or full or partial repayment of the purchase price, he is entitled to settle the advantage enjoyed by the counterparty as a result of temporary use of the goods by the counterparty.
6.8. This guarantee shall in no case extend beyond the delivery of a new replacement order for the defective goods to the counterparty. This guarantee expressly does not include labor costs.
6.9. Replacement of or repairs to delivered goods pursuant to these guarantee provisions does not extend the agreed payment period.
6.10. For the duration of default of the counterparty to fulfil any obligations pursuant to this or any further agreement, the user is not required to provide any guarantee.
6.11. Any liability of the user toward the counterparty with respect to defective delivery is at all times limited to the above guarantee obligations.
ARTICLE 7: LIABILITY
7.1. The liability of the user for all direct costs of damages, in any way related to or caused by an error or failure in the performance of the agreement is at all times limited to the net invoice amount for the assignment or, as the case may be, delivered goods in question.
7.2. The user is never liable for all indirect costs and indirect damages in any manner related to or caused by an error or failure in the performance of the agreement.
7.3. The counterparty indemnifies the user against all third party claims for the compensation of damages or otherwise which are, directly or indirectly, related to the performance of the agreement between the user and the counterparty.
7.4. The user is never liable for any damage to or devaluation of any product or good belonging to the counterparty that the user has received from him or on his behalf for storage/processing/repair exceeding the amount for which the user has taken out insurance for such occurrences and for which actual insurance coverage is granted.
ARTICLE 8: FORCE MAJEURE
8.1. In and in so far as the user fails to meet its obligations pursuant to the agreement in full, in part, on time or in the agreed location as a result of force majeure, he is entitled to dissolve the agreement concerned without recourse to the courts and without owing damages as a result, or to suspend the obligations pursuant to the agreement for a period deemed reasonable by the user.
8.2. Force majeure is understood to include: any unforeseeable stagnation of the normal business operations of the user or the business operations of one or more of the user’s supplier(s) of services and goods, in addition to apparent changes in the actual circumstances that arise after the closing of the agreement and which directly or indirectly affect the cost price factors or delivery possibilities.
8.3. Force majeure includes, but is not limited to: fire, water damage, exceptional weather conditions, disasters, war and threat of war, infectious diseases, mold, government measures, riots, molestation, strikes, exclusion, work-to-rule actions, faulty machinery, equipment or systems, hindrance, stagnation of the supply or rationing of (auxiliary) materials and resources, market downturns of 25% or more, non-performance of an obligation by a third party from whom the user sources goods or services.
8.4. In the event that one of the above circumstances arises, the user will inform the counterparty of this matter without delay, and provide available proof thereof.
ARTICLE 9: PAYMENT
9.1. In accordance with article 4 paragraph 1 of the terms and conditions, unless explicitly agreed otherwise, advance payment of 50% of the net invoice amount shall be fulfilled by the counterparty. All further (remaining) payments must be fulfilled within 14 days following the invoice date. The counterparty is not entitled to any discount or setting-off of outstanding debts. This obligation is upheld in the event of bankruptcy. Payment must take place either at the office of the user or via a transfer into the bank account specified by the user.
9.2. In the event that the counterparty fails to fulfil payment within the above payment term, he shall be deemed in default without requiring further notice of default.
9.3. If the counterparty fails to fulfil payment within the aforementioned payment period, or fails to fulfil payment within the new agreed term, he shall be in default by operation of the law and the user is entitled, without further summons or notice of default, to charge interest of 1.0% per month on the gross invoice amount, starting from the date on which payment was due, until such time that full payment has been received by the user, such without prejudice to any further rights to which the user is entitled. Payments will be deducted from the oldest invoices. Received payments will first go toward payment of associated costs for interest and collection.
9.4. Al costs, judicial and extra-judicial, incurred by the user as a result of the failure by the counterparty to fulfill full, partial, timely or proper fulfilment by the counterparty of any his obligations pursuant to the agreement are for the expense of the counterparty. These costs include those for summons, termination, collection and the bailiff, in addition to the costs for legal counsel/the lawyer and the prosecutor, and all further judicial and extra-judicial costs. These costs are no less than 15% of the claimable principal amount. The counterparty is in default due to his non-performance or improper fulfilment.
9.5. If and in so far as the counterparty is in default of payment, or is bankrupt, has filed for suspension of his payment obligations, applied for debt restructuring and/or has suspended or (is in the process of) liquidating his enterprise, all claims the user may have on the counterparty become immediately due, and the user shall be authorized to dissolve the agreement with immediate effect.
9.6. The user retains the right to demand full or partial advance payment of the agreed purchase price.
9.7. The counterparty is obliged, upon a first claim from the user, to provide collateral security or a bank guarantee for all that is owed by the counterparty to the user pursuant to this agreement or otherwise.
9.8. The user is authorized to set off any due claims of the counterparty toward the user against all claims with a cash value that the user has toward the counterparty.
9.9. The user is authorized to suspend delivery of (a) good(s) until the counterparty has fulfilled all obligations toward the user and/or an enterprise belonging to the legal person associated with the user, regardless of how such obligations were established.
9.10. The conditions and terms of delivery of goods referred to in article 4 of these terms and conditions do not apply in the event that the counterparty fails to fulfil his obligation of timely payment.
ARTICLE 10: APPLICABLE LAW AND JURISDICTION
10.1. All agreements between the user and the counterparty are governed by Dutch law.