Article 1: Definitions
1. In these General Terms and Conditions, Watchit11 B.V. and all its affiliated companies are referred to as: the "Supplier".
2. In these General Terms and Conditions, the Supplier's counterparty is referred to as: the "Client".
3. The Supplier and the Client are jointly referred to as: the "Parties".
4. The Contract for Services concluded between the Parties is referred to as: the "Contract".
Article 2: Scope of the General Terms and Conditions (Assignment, etc.)
1. These General Terms and Conditions apply to all quotes, offers, workactivities, contracts and deliveries of goods or services provided or performed by or on behalf of the Supplier.
2. These General Terms and Conditions may only be deviated from if the Parties have expressly agreed thereto in writing.
3. All obligations of the Supplier arising from the Contract always are best-efforts obligations, and not result obligations.
Article 3: Payment (Assignment, etc.)
1. Invoices must be paid within 14 days of the invoice date, unless otherwise agreed by the Parties or if another payment term is stated on the invoice. The Client is in default by the mere lapse of this term and will owe the Supplier a default interest equal to the statutory interest rate.
2. If the Client fails to pay in time, the Client will be in default. If the Client remains in default, the Supplier will be entitled to suspend its obligations until the Client has fulfilled its payment obligations.
3. The extrajudicial collection costs are calculated in accordance with the Extrajudicial Collection Costs (Fees) Decree. Clients not being consumers are charged the statutory commercial interest rate as referred to in Article 6:119a of the Dutch Civil Code. Consumers are charged the commercial interest rate as referred to in Article 6:119 of the Dutch Civil Code. In case the Client is being wound up, is declared bankrupt, has its assets attached or is granted a moratorium, the Supplier's claims against the Client become immediately due and payable.
4. If the Client refuses to cooperate in the performance of the Assignment by the Supplier, it will still be obliged to pay the Supplier the agreed price.
Article 4: Price Indexation (Assignment)
1. The prices and hourly wages agreed on entering into the Contract are based on the price level current at that time. The Supplier is entitled to annually adjust the fees to be charged to the Client in the interim.
2. The Client must in any case agree in writing to an increase in the costs and hourly wages, to the extent such increase is determined on the basis of the following indexation clause: the new fees are determined by multiplying the existing prices by a fraction, the numerator of which is equal to the index applicable to the month of April prior to the moment of increase and the denominator of which is the index applicable for the month of April of the year before that. The indices used are the household consumption (CPI), all households, price indices, as published by Statistics Netherlands in The Hague.
Article 5: Offers, Quotes and Price (Assignment, etc.)
1. All offers are without obligation, unless the offer states a term for acceptance. If the offer is not accepted within such term, it will lapse.
2. The delivery times stated in the offers are for information purposes only. The exceeding of such terms does not entitle the Client to termination or compensation, unless the Parties have explicitly agreed otherwise in writing.
3. The terms of any offers and quotes do not automatically apply to repeat orders. The Parties must explicitly agree to this applicability in writing.
4. The prices listed in offers, quotes, and invoices are the purchase prices exclusive of VAT and other government levies due.
5. The prices are based on the cost prices known at that moment. Any increases of the cost price that could not have been foreseen by the Supplier at the time the offer was made or the Contract was concluded may give rise to a price increase.
Article 6: Contract Area
1. Dutch Clients may only sell and supply the Contractor’s products and services within the Netherlands.
Article 7: Term of the Assignment
1. The Contract between the Client and the Supplier is entered into for an indefinite period, unless a different term ensues from the nature of the Contract or the Parties explicitly agreed otherwise in writing.
2. If the Parties have agreed a specific term for the completion of certain work activities within the Contract term, such term shall never constitute a final deadline. If this term is exceeded, the Client must give written notice of default to the Supplier.
Article 8: Amendments to the Contract
1. If, during the performance of the Contract, it becomes evident that the work activities to be carried out must be altered or supplemented in order to properly perform the Contract, the Parties shall amend the Contract accordingly, in time and in joint consultation.
2. If the Parties agree to alter or supplement the Contract, this may impact the completion time. The Supplier shall inform the Client of such impact as soon as possible.
3. If the alteration of or supplement to the Contract has financial and/or qualitative consequences, the Supplier shall inform the Client thereof in writing in advance.
4. If the Parties have agreed on a fixed fee, the Supplier shall also state the extent to which the alteration of or supplement to the Contract results in the amount of this fee being exceeded.
5. In derogation from the provisions of the third paragraph of this Article, the Supplier may not charge additional costs if the alteration or supplement results from any circumstance attributable to it.
Article 9: Delivery and Risk Transfer
1. As soon as the work has been completed, the Supplier shall inform the Client thereof. The work shall then be delivered. The Client must sign the packing slip, following which the goods are handed over. The moment the packing slip is signed, the associated risk transfers from the Supplier to the Client.
Article 10: Inspection, Complaints
1. The Client is obliged to inspect the delivered goods, or have it inspected, at the moment of delivery, or in any case within as short as term as possible. The Client must, in this connection, verify whether the quality and quantity of the supplied work correspond to what was agreed between the Parties or, at any rate, that the quality and quantity meet the requirements applicable in standard business practice.
2. Complaints with respect to damage, shortages in or loss of delivered goods must be submitted to the Supplier in writing within three working days from the date the goods were delivered.
3. If the complaint, submitted within this term, is deemed to be well-founded, the Supplier will been titled to either remedy the defect, re-supply the goods or decide not to supply them, in which case the Client will receive a credit note for the relevant part of the purchase price.
4. If the term for submitting complaints has lapsed, the Supplier is no longer obliged to repair or otherwise remedy the defect.
5. The Supplier may not be held responsible for minor deviations and differences in quality, amount, size or finishing, and/or for any such deviations and differences that are customary in the sector.
6. Complaints with respect to a specific product shall have no impact on any other products or parts covered by the same Contract.
7. Once the goods have been processed by the Client, no complaints relating to them will be accepted.
Article 11: Samples and Models
1. If the Client has been provided with a sample or model, this shall be deemed to have been provided as an approximation only. The good to be supplied is not required to correspond thereto, unless the Parties have expressly agreed otherwise.
Article 12: Intellectual Property and Promotion
1. All intellectual property rights attached to the products supplied by the Supplier, including but not limited to copyrights and trademark rights, are and shall remain the exclusive property of the Supplier.
2. Subject to the conditions provided in this Article, the Client is entitled to use the trademarks in connection with the promotion of the products. The Client may not alter, remove or change the trademarks, numbers or other identifying marks attached to the products or used in connection therewith. The Client may not use the trademarks in a fashion that may in any way cause damage to the distinctive character, reputation, validity or the Supplier's goodwill in connection therewith, or to the Supplier's business or trade name. The Client may not use or register any trademark or trade name that resembles any trademark or trade name of the Supplier to such an extent that there is a risk of confusion (including indirect confusion) or deception. In addition, the Client may not use any trademark in connection with the products, other than the Supplier's trademarks, without the Supplier's prior written permission.
3. The Client shall strictly observe the guidelines and instructions with respect to the use of the trade- marks as provided from time to time by the Supplier to the Client.
4. The Client shall, at the Supplier's expense, provide all reasonable cooperation as required by the Sup- plier in connection with the preservation of the trademarks.
5. Except for the right to use the trademarks as set out in paragraph 2, the Client shall have no rights to any trademark, nor to the related goodwill. These are and shall continue to be vested in the Supplier. All goodwill resulting from the use of the trademarks by the Client shall accrue to the Supplier.
6. The Client shall immediately inform the Supplier of any third-party infringement on the trademarks, or the threat thereof, the Client becomes aware of, as well as of each third-party allegation or claim that the sale or import of the products is in violation of any third-party rights.
7. The Client acknowledges and respects these rights and shall not infringe on them. If the Client infringes on the intellectual property rights of the Supplier in any way in spite of the foregoing, the Client shall owe the Supplier an immediately payable fine in the amount of € 2,500 per violation and per day the violation continues. In addition, the Supplier retains the right to recover all damage it suffers or may suffer as a result of the infringement on the intellectual property rights vested in it from the Client.
8. The Client shall endeavour to promote and sell the products. In carrying out its activities, the Client shall observe all applicable legislation.
9. When promoting and selling the products, the Client shall not make use of the Supplier's trade names nor alter the product packaging.
10. Unless otherwise agreed in a specific case, the Client shall perform promotional activities at its own expense and risk. No later than on the tenth day of each calendar quarter, the Client shall inform the Supplier in writing of the promotional activities to be performed in that quarter and the activities per- formed in the previous quarter. The Supplier may provide instructions to the Client with respect to the format to be used for providing this information.
11. The Client shall buy the promotional materials from the Supplier. If the Client elects to have promotional materials made, it shall not publish any type of promotional material with respect to the products, including, but not limited to, leaflets, flyers, faxes and adverts, distributed via the Internet or otherwise, without the Supplier's explicit prior written approval of the contents thereof.
12. The Client is obliged to present the products in accordance with the instructions of the Supplier. The Client is obliged to buy the related promotional materials, including displays and other presentation products, from the Supplier.
Article 13: Delivery
1. Delivery takes place "Ex Works/Store/Warehouse". This means that all costs shall be borne by the Client.
2. The Client is obliged to take possession of the goods the moment the Supplier delivers them, or has them delivered, to the Client or at such time as the goods are made available to the Client under the Contract.
3. If the Client refuses to take possession or is negligent in providing information or instructions required to effect delivery, the Supplier will be entitled to store the goods at the risk and expense of the Client.
4. If the goods are delivered, the Supplier is entitled to charge any delivery costs.
5. If the Supplier requires certain data from the Client to be able to perform the Contract, the delivery period starts from the time the Client has provided this data to the Supplier.
6. All delivery periods stated by the Supplier are for information purposes only and never constitute a final deadline. If any such term is exceeded, the Client must give written notice of default to the Supplier.
7. The Supplier is entitled to deliver the goods in parts, unless the Parties have agreed otherwise or if the partial delivery has no independent value. In the case of partial deliveries, the Supplier is entitled to invoice every separate part.
Article 14: Force Majeure
1. If the Supplier is unable to fulfill its obligations, or to fulfill them in time or properly, due to force majeure, it will not be liable for damage suffered by the Client
2. The Parties define force majeure as , in any case, any circumstance the Supplier could not take account of at the time the Contract was entered into, by reason of which normal performance of the Contract can no longer be reasonably demanded from the Supplier, such as illness, war or the threat of war, civil war and riots, acts of war, sabotage, terrorism, power failures, flooding, earthquakes, fire, factory sit- ins, strikes, employee lock-outs, changes in government measures, transportation difficulties and other disruptions in the Supplier's operation of its business.
3. In addition, the Parties consider the circumstance of suppliers on which the Supplier depends for the performance of the Contract failing to meet their contractual obligations vis-à-vis the Supplier to be force majeure, unless such failure is attributable to the Supplier.
4. In the event of force majeure, the Supplier is entitled to alter the delivery and/or completion terms and, if delivery and/or completion has become impossible or unreasonably onerous, to terminate the Contract with immediate effect without judicial intervention being required and without the Supplier being obliged to pay compensation.
5. If a situation of force majeure lasts for more than three months, the Client will been titled to terminate the Contract with immediate effect. Notice of termination must be delivered by registered letter.
6. If the delivery and/or completion at a later date results in an increase of the costs, these additional costs shall be borne by the Client.
7. Following termination of the Contract, the Supplier is entitled to compensation of all expenses incurred and all work performed, to the extent such has benefited the Client.
Article 15: Settlement
1. The Client waives the right to set off a debt to the Supplier against a claim against the Supplier.
Article 16: Suspension
1. The Client waives the right to suspend performance of any obligation arising from this Contract.
Article 17: Transfer of Rights
1. The rights of any Party to this Contract may not be transferred without the prior written permission of the counterparty. This provision constitutes a stipulation with property-law effect within the meaning of Article 3:82(2) of the Dutch Civil Code.
Article 18: Lapse of Claim
1. All rights of claim the Client holds against the Supplier, either resulting from a failure to perform the Contract, or from an unlawful act, or from any other reason, lapse upon the expiry of a period of one year from the date the Client became aware, or should reasonably have become aware, of the existence of such rights of claim, and the Client has failed to institute legal action accordingly within a period of one year.
Article 19: Insurance
1. The Client undertakes to have and keep the goods delivered sufficiently insured against, inter alia, fire, explosion and water damage, and theft.
2. The Client shall make the related insurance policies available for inspection upon request.
Article 20: Retention of Title and Right of Retention
1. The goods present at the Supplier and the goods and parts delivered remain the property of the Supplier until the Client has paid the entire agreed price. Until such time, the Supplier may invoke its retention of title and recover the goods.
2. If the agreed amounts to be paid in advance are not paid, or not paid in time, the Supplier will be entitled to suspend its work activities until the agreed amount has been paid. This will constitute a situation of creditor's default. If this is the case, the Supplier cannot be held liable for late delivery.
3. The Supplier is not entitled to pledge or otherwise encumber the goods covered by its retention of title.
4. The Supplier undertakes to insure the goods delivered to the Client under retention of title against fire, explosion and water damage and theft, and to keep them insured, as well as to make the related insurance policies available for inspection upon request.
5. If any goods have not yet been delivered, while the agreed advance payment or price has not been paid or not been paid as agreed, the Supplier has the right of retention. If this is the case, the good will not be delivered until the Client has effected payment in full and as agreed.
6. If Client is being wound up, declared insolvent or granted a moratorium, the Client's obligations become immediately due and payable.
Article 21: Joint and Several Liability
1. If the Assignment is given by more than one Client, all Clients are jointly and severally liable for the performance of all obligations arising from these General Terms and Conditions and this Agreement.
Article 22: Liability for damage
1. Any liability for damage resulting from or related to the performance of a contract is at all times limited to the amount paid out under the (professional) liability insurance in the case concerned, plus the amount of excess under the relevant insurance policy.
2. The Supplier is not liable for damage resulting from this Contract, unless this damage results from its wilful misconduct or gross negligence.
Article 23: Obligation to Complain
1. The Client is obliged to immediately submit all complaints about the work activities performed to the Supplier. The complaint must contain as detailed as possible a description of the defect, so as to allow the Supplier to respond effectively.
2. If a complaint is well-founded, the Supplier shall only be obliged to perform the work activities as agreed between the parties.
Article 24: Warranties
1. If the Contract lists any warranties, the following applies. The Supplier warrants that the product sold conforms to the provisions of the Contract, that it operates flawlessly, and that it is appropriate for the intended use of the Client. Starting from the moment of actual use by the Client, this warranty applies for a period of two calendar years for watches and six months for jewellery. This warranty does not apply to batteries and straps in any case whatsoever.
2. This warranty ensures that such a division of risks between the Supplier and the Client is realised that the consequences of any breach of this warranty are at all times at the expense and risk of the Supplier, and that the Supplier may never invoke Article 6:75 of the Dutch Civil Code with respect to any breach of the warranty. The provisions of the previous sentence also apply if the Client was or could have been aware of this breach by carrying out an inspection.
3. The aforementioned warranty does not apply if the defect results from improper or incorrect use or if the Client or third parties have altered or tried to alter the product or have used it for purposes it is not intended for, without having received permission to do so.
4. If the warranty provided by the Supplier relates to a good produced by a third party, the warranty is limited to the warranty provided by that producer.
Article 25: Applicable Law
1. This Agreement between the Supplier and the Client is exclusively governed by Dutch law. The Dutch courts have jurisdiction.
2. The applicability of the Vienna Sales Convention is expressly excluded. If one or more of the provisions of these General Terms and Conditions are considered to be unreasonably onerous by any court, the remaining provisions continue to apply in full.
Article 26: Choice of Forum
1. All disputes arising from this Contract shall exclusively be submitted to the Den Bosch District Court.