General terms and conditions
General Terms and Conditions of Sale and Delivery
From the Association of Manufacturers and Wholesalers of Sporting Goods (F.G.H.S.).
Article 1. Definitions
In these General Terms and Conditions, the following definitions shall apply:
- F.G.H.S.: the Vereniging van Fabrikanten en Groothandelaren in Sportbenodigdheden (F.G.H.S.), with its registered office in Utrecht;
- Seller: RSD b.v., in Herten, with its registered office in Roermond; Rehall.
- Buyer: natural person or legal entity that is party to an agreement or other legal relationship with Seller or to whom Seller has made an offer or quotation;
- Working Days: all calendar days with the exception of Saturdays, Sundays, January 1, Easter Monday, Ascension Day, Whit Monday, Christmas Day and Boxing Day, the days that have been or will be proclaimed as national holidays by the Government, and the day on which the birthday of HRH the King is officially celebrated;
- days: all calendar days
- Intellectual Property Rights: all rights of intellectual property and related rights, such as copyright, trademark, patent, design right, trade name right, database right and neighboring rights, as well as rights to know-how and one-line performances.
Article 2. Applicability and validity.
2.1
These General Terms and Conditions apply exclusively to all offers from Seller to Buyer and to all agreements between Seller and Buyer - of whatever nature - and all (other) legal acts, legal relationships and agreements which may or may not result from or be related to them.
2.2
Seller has the right to amend and/or supplement these General Terms and Conditions at any time. Seller shall notify Buyer in writing of any material change at least one month before the relevant change or addition becomes effective. Unless Buyer objects in writing within two weeks from the date the written notice is sent, Buyer shall be deemed to have tacitly agreed to the amendment or addition. Any purchase and other terms and conditions of Buyer shall only apply if it has been expressly agreed in writing that they apply to the agreement to the exclusion of these General Terms and Conditions.
2.3
In the event of nullity of one or more provisions of the General Conditions, the remaining provisions shall remain in force.
Article 3. The formation of agreements
3.1
All offers, quotations, quotations and the like issued by Seller are without obligation unless the contrary has been expressly stated in writing. Quotations, offers, quotations and the like include price lists, brochures and other information provided.
3.2
The (purchase) agreement is concluded if the Buyer places an order with the Seller, and this order is accepted by the Seller. Placing an order is free of form. Acceptance of an order is made by written or electronic (by e-mail) confirmation to Buyer or by delivery of that which is included in the order.
3.3
Buyer warrants that the person placing an order on behalf of Buyer is authorized to enter into the agreement with Seller.
3.4
Cancellation of an agreement is not possible unless Seller agrees to it in writing and the goods in question have not yet been delivered. Seller is entitled to attach further conditions to the consent.
3.5
Changes and additions to concluded agreements shall only be effective if they have been expressly agreed in writing by Seller and Buyer.
Article 4. Materials and data provided by Seller
4.1
Design drawings, work and detail drawings, models, computer software, photographic recordings, samples, designs, logos, stated dimensions, quantities, designs, colors, materials, technical specifications and/or other materials and data provided by Seller to Buyer are only approximate descriptions of the goods. Seller therefore does not guarantee the accuracy and completeness of these materials and data.
4.2
Seller is not liable with respect to Buyer's use of the aforementioned materials and data, unless expressly agreed otherwise in writing.
4.3
The materials and data referred to in this Article, or any right thereto, do not pass to Buyer as property. At Seller's first request, Buyer shall return the aforementioned materials and data to Seller at its own expense.
4.4
All Intellectual Property Rights with regard to the materials and data referred to in this Article belong to Seller and/or its licensors. Nothing in theseGeneral Conditions is intended to transfer any Intellectual Property Rights to Buyer.
4.5
Buyer may only use the materials and data referred to in Article 4 in the context of the execution of the agreement. Without prejudice to the foregoing, none of the items or the materials and data referred to in Article 4 may be made available for inspection or handed over to third parties, whether or not for reuse, without the Seller's prior written consent.
Article 5. Information provided by Buyer
5.1
The Vendor assumes that the design drawings, work and detailed drawings, computer software, models, photographic images, samples, designs, logos, stated dimensions, quantities, designs, colors, materials, technical specifications and/or other materials and data supplied by the Purchaser to the Vendor are adequate, correct and complete, without the Vendor being bound to carry out any further investigation.
5.2
The Purchaser indemnifies the Vendor against all claims, at law and otherwise, from third parties who claim that an Intellectual Property Right, or any other right of those third parties, has been infringed by the Vendor's use of the materials and data referred to in this Article.
Article 6. Delivery and risk
6.1
The goods will be delivered by the Vendor or sent for delivery to the agreed location or locations in the manner stipulated in the order or (subsequently) agreed in writing.
6.2
The transport of the goods will be at the expense of the Seller, unless the order amount of goods is lower than an amount to be determined by the Seller, in which case the transport will be at the expense of the Buyer. The aforementioned amount depends on the price level and volume, but will not exceed 500 Euro.
6.3
The Buyer is obliged to take delivery of the goods at the agreed location(s) at the time that the Seller delivers them to him or has them delivered, or at the time when they are made available to him in accordance with the agreement. If Buyer remains in default in this respect, the resulting damage and costs will be at its expense.
6.4
The risk of the goods passes to the Buyer at the time at which they are brought under the control of the Buyer or a third party designated by the Buyer. This is also the case if the Seller provides transport at the request and expense of the Buyer.
6.5
The Seller will make every effort to package the goods properly and conveniently.
Article 7. Delivery times/delivery on demand
7.1
Seller shall make every effort to deliver the goods at the time(s) or immediately after the end of the delivery period(s) specified in the order. If a delivery period has been agreed upon, it shall commence on the date the Seller has accepted the order in writing. If a delivery term is exceeded, Seller shall be entitled, without being liable for any compensation, to deliver the goods no later than 15 working days after the expiry of the delivery term.
7.2
If goods ordered are available to Buyer but are not accepted by Buyer, Seller is entitled at its own discretion and without notice of default being required:- To deliver the goods by written notification to Buyer, in which case the goods will be stored with Seller or with the carrier from the time that notification is sent, at Buyer's expense and risk, including the risk of quality deterioration. or to dissolve all or part of the agreement with Buyer in the manner stated in Article 10 below, and to sell and deliver the goods to (a) third party (parties). In that case Buyer is liable for all damage suffered by Seller as a result.
7.3
If a third party objects to the Vendor's delivery, without prejudice to the above, the Vendor is entitled to suspend and/or immediately cease that delivery and to demand compensation from the Purchaser for the costs incurred and damages, without the Vendor being liable to pay any compensation to the Purchaser.
7.4
If, in the case of delivery on call, no deadlines have been set for call-off, Seller is entitled to full payment of the total order three months after ordering.
7.5
If, in the case of delivery on call within three months, not all or part of the order has yet been called, the Buyer shall indicate in writing within 5 working days of the Seller's first request to this effect within what period the total quantity shall be called. This period to be indicated by the Buyer may not exceed a period of three months. With effect from the first day following that three-month period, the goods that have not yet been called shall be stored at the Seller's or carrier's premises at the Buyer's expense and risk, including the risk of deterioration. The stored goods shall remain the property of the Seller until delivery of the goods to the Buyer.
Article 8. Pricing, billing and payment
8.1
All prices offered by Seller and Buyer are net and exclusive of sales tax, unless explicitly stated otherwise. Seller is entitled to change the prices offered at any time prior to the conclusion of the agreement referred to in Article 3.2.
8.2
The Seller shall be entitled to change prices after the conclusion of the agreement if the price increase is due to any of the following factors: i) increases in taxes or other government levies and/or duties, ii) changing exchange rates, iii) increases in wages, transport costs and/or purchase prices. In this case, the Buyer is always entitled to rescind the agreement within 14 days of being notified in writing of the price change in accordance with Article 10, without the Seller being obliged to compensate any damage.
8.3
If the invoice amount of a delivered batch is less than 350 Euros, the Seller is entitled to charge a surcharge of up to 10 Euros for administration costs.
8.4
Seller is entitled to invoice and request payment before delivery.Payment must be made within 30 days of the invoice date unless otherwise indicated on the invoice. Payment may also be required for partial deliveries.Seller is at all times entitled to suspend delivery until Buyer has made a payment.
8.5
If Buyer has not paid the amounts due in full within the agreed period, he shall be in default after the expiry of this period, without any notice of default being necessary. In that case:a) the Buyer shall, from the date on which the amount due has become due and payable until the time of payment, owe interest on the outstanding amount at the statutory commercial interest rate pursuant to Article 6:119a of the Dutch Civil Code; andb) all costs incurred by the Seller, such as costs of litigation and extrajudicial costs, including the costs of legal assistance, bailiffs and collection agencies, incurred in connection with the late payment, shall be borne by the Buyer. The extrajudicial costs are set at a minimum of 15% of the invoice amount with a minimum of € 100, - excluding VAT all this without prejudice to Seller's other legal remedies under these General Terms and Conditions and/or applicable law, including the right to damages.
8.6
If Seller's legal claims for payment are upheld in whole or in part, Buyer must reimburse all legal costs incurred by Seller, including the costs of legal assistance, including any amounts not awarded by the court, unless Seller is the only party ordered to pay the legal costs.
8.7
Payments made by Buyer always serve to settle all interest and costs due and subsequently due and payable invoices that have been outstanding the longest, even if Buyer states that the payment relates to a later invoice.
8.8
Complaints regarding invoices or items do not suspend Buyer's payment obligation. Buyer is not entitled to setoff.
Article 9. Retention of title and other securities.
9.1
Notwithstanding the provisions of these terms and conditions, all goods delivered by Seller at any time remain the property of Seller until payment by Buyer cancels all Seller's claims against Buyer that fall within the scope of Article 92 of Book 3 of the Dutch Civil Code, for whatever reason and irrespective of the claimability, including interest and costs. Prior to full payment, the Buyer is not authorized to pledge the goods to third parties or to transfer possession thereof, with the exception of the goods delivered by the Seller, which the Buyer transfers in the ordinary course of business. In the event of violation of this, as well as in the event of full or partial applicability of Article 10, the Vendor has the right to take back or have taken back all goods delivered by the Vendor from the place where these goods are located, without any authorization from the Buyer or the court being required. At that time any claim of Seller will also be immediately due and payable in full.
9.2
Buyer is obliged to keep the goods delivered under retention of title with due care and as the recognizable property of Seller. The Buyer is obliged to insure the goods for the duration of the retention of title against fire, water and explosion damage as well as theft and to make the policies of this insurance available to the Seller for inspection on demand.
9.3
In the event that Seller wishes to exercise its rights mentioned in paragraph 1, Buyer hereby unconditionally and irrevocably authorizes Seller or a third party to be designated by Seller to enter all those places where Seller's property is or may be located, and to take possession of that property. Any ensuing costs will be borne by the Buyer.
9.4
If in the opinion of Seller the financial position and/or the payment record of Buyer gives cause to do so, Seller is entitled to demand that Buyer immediately provides security for first or subsequent deliveries in a form to be determined by Seller and/or makes an advance payment. If the Buyer fails to provide the required security, the Seller shall be entitled, without prejudice to its other rights, to immediately suspend or dissolve the further performance of the agreement without itself being liable for any compensation and all that the Buyer owes the Seller for whatever reason shall be immediately due and payable.
Article 10. Dissolution and suspension
10.1
Dissolution of the contract may only be made in writing. Dissolution of the contract on the grounds of attributable failure shall only be permitted after a written notice of default which is as detailed as possible and which sets a reasonable deadline for performance.
10. 2
If Buyer or Seller has been or threatens to be in suspension of payment, the Buyer's or Seller's bankruptcy is filed for, he is declared bankrupt, he discontinues his business, or it is decided to dissolve the legal entity, or the Seller or Buyer receives information indicating with reasonable certainty that the Buyer or Seller will probably not be able to meet its obligations, the Seller or Buyer is entitled to dissolve all agreements existing at that time wholly or partially by registered letter with immediate effect without judicial intervention.
10.3
In the event that the agreement is dissolved, there will be no undoing of that which Seller has already delivered and the related payment obligation, unless Buyer proves that Seller is in default with regard to the essential part of that performance. Amounts that Seller has invoiced before the dissolution in connection with that which Seller has already duly performed or delivered in execution of the agreement shall, with due observance of the provisions of the previous sentence, continue to be owed in full and shall become immediately payable at the time of dissolution.
10.4
This dissolution may also extend, at the Seller's option, to items that had already been delivered under the same agreement, if those items should have been delivered as a set according to that agreement (order confirmation). In the above-mentioned situation(s) the Buyer is authorized to return the goods to the Seller at his own expense and risk and to reclaim from the Seller any payments he may have made for the goods.
10.5
If the Buyer fails to fulfil any obligation to the Seller under any agreement, the Seller is entitled to suspend all agreements existing between them at that time without judicial intervention, without prejudice to the Seller's other statutory rights in such a case.
Article 11. Advertising
11.1
Buyer shall observe the regulations on the manner of storage and handling of the delivered goods. Buyer shall inspect the goods upon delivery or within 2 working days thereafter.
11.2
Reclaims concerning deliveries must be made by Buyer in writing and directly to Seller within 3 working days after delivery. Complaints must be made in writing (or by e-mail), accurately stating the nature and basis of the complaints, including in any case dated photographs showing the defects and submitting the packing slip and (if known) the relevant invoice number. The submission of a complaint shall suspend the obligation to pay in respect of the goods in dispute. The defective goods must be in the possession of the Seller within 10 working days of delivery.
11.3
Any right of Buyer to invoke any defects in the goods upon delivery expires one month after delivery, unless Buyer can prove that the defect was already present at the time of delivery and only manifested itself later than one month after delivery.
11.4
If a complaint is well-founded, the Vendor is bound to repair the faulty goods or to replace them with other goods in accordance with the order, at his own discretion, provided that the redelivery or repair takes place within a reasonable period of time after the validity of the complaint has been established. In that case the Buyer will under no circumstances be entitled to compensation.
11.5
The Seller reserves the right, in determining the consequences of a justified claim, to take into account any diminution in value with respect to the goods. The foregoing does not apply if the Buyer proves that the decrease in value is entirely attributable to the Seller.
11.6
Returns in connection with a complaint, which are not preceded or accompanied by the information mentioned in the second sentence of paragraph 2, are not permitted. If Buyer nevertheless returns goods contrary to this regulation, or returns goods unfounded, these will be held at Buyer's disposal at Buyer's expense and risk, insofar as they have not been refused by Seller, without any acknowledgement of the correctness of the possible warranty claim can be derived from this. The costs of unfounded returns shall be borne by Buyer.
Article 12. Warranty and Liability.
12.1
Statements by or on behalf of Seller regarding the quality, composition, application possibilities, properties and treatment of delivered goods only apply as a guarantee if they have been explicitly confirmed in writing by Seller in the form of a guarantee.
12.2
If during the guarantee period the Buyer carries out repairs or changes or has these carried out without prior permission from the Seller, the guarantee obligation will immediately lapse.
12.3
The Seller is not liable for any damage caused by an attributable shortcoming, wrongful act or any other act of the Seller, except insofar as there is intent or deliberate recklessness on the part of the Seller personally or managerial subordinates belonging to the management of the Seller.
12.4
If, despite the provisions in 12.3, Seller has any liability, this liability is limited to compensation for direct damage suffered by Buyer up to a maximum of the invoice amount for the relevant (sub)agreement or order. In no event, however, will the total liability of Seller for direct damage, for whatever reason, exceed €50,000.
12.5
Direct damage means exclusively:
a. reasonable costs that Buyer would have to incur to have Seller's performance comply with the agreement; however, this alternative damage will not be compensated if the agreement is dissolved by or at the request of Buyer.
b. reasonable costs incurred to determine the cause and extent of the determination relates to direct damage within the meaning of this agreement;
c. reasonable costs incurred to prevent or limit the damage, in so far as Buyer demonstrates that these costs have led to a limitation of direct damage within the meaning of this agreement.
12.6
A condition for any right to compensation is always that the Buyer reports the damage to the Seller in writing as soon as possible after it occurs. Any claim for damages against Seller shall lapse by the mere expiry of 6 months after the claim arises.
Article 13. Force Majeure
13.1
None of the parties shall be bound to fulfill any obligation if prevented from doing so due to force majeure.
13. 2
For this purpose, force majeure shall mean any circumstance, including but not limited to ice, extreme weather conditions, terrorist attacks, flooding, legal restrictions, shortcomings of suppliers and auxiliary persons of Seller, strike, government measures, delay in supply, export ban, riot war, mobilization, transport impediments, defects in machinery, breakdown in the supply of energy, import impediments, fire and all other circumstances beyond the control of Seller or Buyer as a result of which the normal execution of the agreement cannot reasonably be required by Seller or Buyer.
13.3
The party in which the force majeure occurs shall immediately warn the other party in writing.
13.4
The other party cannot claim compensation in the case of force majeure.
13.5
If a case of force majeure results in the agreed date or term being exceeded, including any subsequent delivery term of 15 working days, the other party shall be entitled to rescind the relevant agreement in writing, without the rescinding party being liable to pay any damages as a result.
Article 14. Disputes and applicable law.
14.1
All disputes relating to an agreement or the execution of an agreement between Buyer and Seller, which cannot be resolved in mutual consultation between the parties, will be submitted to the competent court in the district in which Seller is established. Seller has the right, notwithstanding the above, to submit a dispute to the competent court in the area in which Buyer is established.
14.2
All agreements and legal relationships between the Buyer and Seller on any other account shall be governed by Dutch law, to the exclusion of the Vienna Sales Convention (CISG) (filed with the Chamber of Commerce and Industry in Utrecht, the Netherlands, under number 40478858).
