General terms and conditions of sale
GENERAL TERMS AND CONDITIONS OF SALE FOR THE PRIVATE LIMITED COMPANY OF SCALA AGENTUREN B.V. A COMPANY REGISTERED IN THE NETHERLANDS UNDER COMPANY NUMBER 33127403 WHOSE REGISTERED OFFICE IS AT ALMERE, (NL-1329 BA) RONDEBELTWEG 2, THE NETHERLANDS, HEREINAFTER: “SCALA”.
ARTICLE 1 GENERAL
1.1 These terms and conditions are applicable to all Scala’s quotations and agreements, whether verbal or written, unless explicitly otherwise agreed in writing, and apply to all obligations entered into by Scala in connection with the object of Scala’s companies, explicitly including the purchase and sale of, trade in, distribution and similar of all goods all in the broadest sense of the word.
1.2 Scala’s quotations are free of obligation and indivisible, unless the contrary has been explicitly agreed in writing. Orders are only binding on Scala once confirmed in writing, while purchasers are bound by their orders once placed.
1.3 Once an order has been accepted, terms and conditions – of purchase or otherwise – stipulated by clients shall only be binding on Scala inasmuch as they do not differ from or conflict with these terms and conditions. In the event of a conflict between these terms and conditions and clients’, these terms and conditions shall take precedence, unless Scala has confirmed in writing that the client’s terms and conditions take precedence.
1.4 Notwithstanding the provisions of article 6:225 sub 3 of the Dutch Civil Code, if the Purchaser refers to its General Terms and Conditions, in any case the applicability of the General Terms and Conditions of the Purchaser is expressly excluded.
1.5 All contract documents related to this Purchase are to be interpreted together as one agreement. However, if there is an irreconcilable conflict among the provisions of those contract documents, the following order of precedence applies:
a) any consignment agreement; then
b) these General Terms and Conditions of Sale; and finally
c) other contract documents agreed to in writing by the parties.
1.6 If (part of) the Articles of these standard terms and conditions of supply and payment are avoided or are null and void, the other (parts of) the Articles remain fully in effect.
1.7 Scala reserves the right to make any amendments or additions in these terms and conditions. Scala will inform the client via e-mail prior to the amendment(s) or addition(s) becoming effective. Amendments and additions to any provisions in an agreement may only be agreed in writing. In the event of an amendment and/or addition, as referred to in this article, it is agreed that said amendment or addition shall only apply to the agreement in question, unless otherwise explicitly agreed. The amended version of these terms and conditions shall form a part of each agreement which shall come into effect between the vendor and purchaser after the moment the amendment comes into effect, in the event that the client does not reject the applicability of the new terms and conditions in writing within 30 days of the new terms and conditions being sent. In the event of rejection as referred to in this article, the current terms and conditions shall remain applicable until agreement has been reached between Scala and the client on the full applicability of the new general terms and conditions.
ARTICLE 2 AGREEMENT AND OFFER
2.1 Any offer or advice from Scala is without prejudice and subject to contract, unless Scala has stated in writing in the offer or advice that they are binding. All communications on Scala’s website(s) in relation to goods to be sold (in the future) are an invitation to treat only and do not bind Scala.
2.2 Agreements with Scala are only formed after:
a. the signing of a written agreement, as drafted by Scala, by the contracting party and Scala; or
b. a written acceptance by a contracting party of an offer from Scala; or
c. a written recording by Scala of the agreements made with a contracting party.
2.3 Product descriptions, availability information, measurements, specifications, drawings, technical information, calculations, colours and examples which are part of an offer, an advice or an agreement are not binding on Scala and are only approximate indicators. Any deviations from these therefore do not entitle the client to cancel the order, unless the deviations are of such an extent that the products do not comply whatsoever with the information provided by Scala, which shall be determined between Scala and the client in consultation.
2.4 Scala is entitled to deliver 10% more or less than agreed if the packaging doesn’t allow otherwise. Insofar more is delivered than has been agreed, Scala’s contracting party is obliged to pay for the surplus.
2.5 Oral promises by employees of Scala are not binding on Scala unless and insofar these communications are confirmed in writing by a duly authorised representative of Scala.
2.6 If Scala sells products for a price which is lower than the normal price by way of a special offer, the (future) contracting party accepts that the price of the special offer only applies as long as the stock, to which the special offer of Scala relates, lasts.
2.7 All agreements are formed by acceptance by Scala’s client of an offer / quotation issued by Scala. Scala can revoke quotations and offers immediately after acceptance of Scala’s offer, or tacitly in the event that the quotation is not accepted by the client within the period stated in the quotation.
ARTICLE 3 PRICES
3.1 All prices stated by Scala in an offer or agreement are exclusive of VAT, insurance or packaging costs, packaging development costs, packaging design costs and are, in addition, exclusive of import and export duties or other levies.
3.2 If, after the formation of an agreement, one or more price determining factors undergo an increase Scala is, irrespective of whether this was foreseeable by Scala at the time of the offer, entitled to increase the offered or agreed price.
A price increase can, in the circumstances referred to above, never amount to more than 10% of the offered or agreed price.
3.3 Scala is entitled to charge a (future) contracting party for samples made available.
ARTICLE 4 PAYMENT
4.1 The contracting party obliges itself towards Scala to pay the invoice as sent by Scala within 30 days of the invoice date.
4.2 Scala is entitled to invoice each partial delivery separately.
4.3 Scala shall be entitled to charge the purchaser the legal rate of interest pursuant to article 119a Book 6 of the Dutch Civil Code plus 2% per annum or part thereof from the due date on the full invoice amount. In the event of payment by bank transfer, the date of payment shall be deemed to be the date on which our accounts are credited. Furthermore, in the event that Scala transfer’s its claims to third parties, the purchaser shall be liable for all collection costs, set at a minimum of 15% of the amount owed, not including interest, with a minimum of 250 euros and, in any case, a minimum of the applicable lawyers fees set and published by the Governing Council of the Netherlands Bar, plus judicial expenses, including the costs of applying for bankruptcy (with a minimum of 250 euros).
4.4 In the event of a change in the currency exchange rate after the agreement comes into effect, Scala shall be entitled to invoice the purchaser for any negative effects thereof on Scala.
4.5 No protest or guarantee claim shall suspend the clients payment obligation(s), if and to the extent the parties did not agree otherwise.
4.6 All payments made by the Purchaser to Scala are in the first place considered to be payment of all costs and interest due, and in the second place of the invoices due which have been outstanding longest, even if the Purchaser states that the payment relates to an invoice of a later date.
ARTICLE 5 TRANSFER OF RISK AND DELIVERIES
5.1 Any delivery times agreed with, or set by, Scala apply between parties as a delivery time by approximation. The delivery time shall be suspended until such time at which all technical and other queries of Scala to the contracting party in respect of the deliveries to be made have been answered by the contracting party in writing. The delivery time of Scala shall, in addition, not commence any earlier than when any obligations on the part of the contracting party pursuant to the current agreement or agreements entered into previously have been fully performed. The delivery time of Scala shall be extended by the duration of the delay caused by the non-performance of third parties of the delivery of goods to Scala.
5.2 From the moment of delivery, the risk in respect of the delivered goods transfers to the contracting party. The contracting party accepts that from the moment of delivery, Scala is never liable for any damage to delivered goods or damage caused by delivered goods irrespective whether the contracting party had taken receipt of these goods at that time. The contracting party accepts that Scala is never liable for any damage to delivered goods or injury to persons caused by, or as a result of, the shipping or transport, or by the loading and unloading of the goods or for damage caused at the place where the goods have been delivered by or on behalf of Scala. The parties acknowledge this clause does not apply to CIF shipments.
5.3 To the extent Scala exceeds the delivery time, the contracting party is not entitled to compensation. If the contracting party does not cooperate, does not cooperate fully or in time, with the delivery by Scala, irrespective of where the goods become available to the contracting party, the contracting party is liable for the loss of Scala caused by such.
5.4 Scala is entitled to perform the agreement by way of partial deliveries and to send the contracting party an invoice for each partial delivery.
5.5 All terms and conditions of delivery are free of obligation on Scala, and are based on the circumstances applicable to Scala at the time the agreement is entered into, and inasmuch as they are dependent on the performance of third parties, on the information provided by said third parties, while the delivery date shall be observed by Scala as much as possible, on the understanding that in the event that the delivery period is exceeded by more than three months, the client shall be entitled to request dissolution of the agreement. The client shall not have such a right if the client itself is in default. The delivery period shall commence on the date on which the agreement comes into effect as referred to above under Article II. In the event that the stated delivery period is exceeded, the client shall not be entitled to any claim for a penalty and/or compensation for loss, in the event that the client is or could have been insured against the loss in question. In the event that it becomes apparent that such insurance is or was not possible, the level of the compensation for loss which the client must prove shall be limited to the invoice amount for the goods which could not be delivered within the stated period. Scala shall furthermore at all times be entitled to make partial deliveries.
5.6 In the event that the client remains in default of payment of a debt to Scala – for any reason whatsoever – Scala shall be entitled to postpone implementation of an order until such a time as payment has taken place, to refuse to carry out further deliveries and/or to amend the terms and conditions for payment. In the event of non-purchase or late purchase of goods by the purchaser, Scala shall provide the purchaser for a maximum period of five days with the opportunity to purchase / collect the goods from the location at which Scala have stored them at the expense and risk of the purchaser. All costs incurred by Scala as a result of the non-purchase or late purchase shall be borne by the purchaser. In the event that the purchaser does not purchase the goods within the five-working-day period, Scala shall be entitled to demand compliance with the agreement, or to declare the agreement dissolved without judicial intervention, without prejudice to Scala’s right to claim, in addition, full compensation for loss from the purchaser.
5.7 Transportation of the goods shall be at the expense and risk of the purchaser, unless the delivery conditions are ‘free delivery / free to border’, which condition must be agreed in writing. The shipping method shall be determined by Scala. In the event that the purchaser requests a different shipping method, in good time, any shipping costs for the method desired by the purchaser shall be borne by the purchaser.
5.8 In the event of an intra-community delivery subject to 0% VAT (as referred to in Article 28 (a) European Council directive 91/680/EEC), and in the event that the purchaser is arranging the transport, the purchaser shall notify Scala in good time in writing before the delivery date of the VAT number used by the purchaser for each separate transaction, and indicate whether the goods are to be transported by or on behalf of the purchaser to another EU member state. In the event that Scala, in situations as described above, is satisfied that the client has shown sufficiently that 0% VAT should be invoiced, the purchaser shall submit to Scala at the earliest opportunity documents showing that the goods were actually transported to another EU member state. The purchaser shall be liable for any VAT, surcharges and fines owed by Scala in the event that said documents are not received by Scala in good time. In the event that the VAT number cannot be verified by the tax authorities in time, or that the tax authorities ascertain that the VAT number cannot be used, the delivery shall be deemed to have been made within the Netherlands, and VAT charged accordingly. In the event that Scala is arranging the transport and the tax authorities determine that Scala has provided insufficient evidence that the goods have left the EU member state of origin, the purchaser shall make every effort to provide satisfactory evidence.
5.9 At the purchaser’s request – and if Scala deems that it can reasonably meet such a request -Scala shall draw up an accompanying document (AGD) for transport of the goods to a bonded warehouse indicated by the purchaser, or to a registered or non-registered company. Before the accompanying document is drawn up, the purchaser shall notify Scala of the name of the person or persons authorized to sign for receipt of the goods, and shall supply copies of the signature(s), as well as the excise number.
5.10 In the event of FOB/FCA delivery, the purchaser shall be liable for all taxes, levies, surcharges and fines resulting from breaches or irregularities during transport or receipt of the goods by the addressee of the accompanying document.
In the event of CIF/CFR delivery, the purchaser shall be liable for all taxes, levies and fines resulting from shortfalls on receipt of the goods by the addressee of the accompanying document. The purchaser is also obliged to return to Scala the return shipment copy of the accompanying document, signed by the authorized person. Purchasers of Scala’s products are wholly responsible with regard to the various international laws and regulations covering the import and export of goods to countries outside the Netherlands. Scala accepts no liability whatsoever in the matter. Scala is in no way responsible for any parallel import by its clients. In as much as it has been irrevocably determined in law or by means of a contractual commitment agreement that Scala has been responsible for unlawful export/parallel import, its liability shall be limited to a maximum of the level of the invoice amount for the goods in question.
ARTICLE 6 FORCE MAJEURE
6.1 In the event that Scala is unable to deliver due to circumstances beyond its control, Scala shall be entitled to decide whether the agreed delivery period shall be extended by the period of force majeure or to cancel the agreement or the part thereof not implemented up to that point.
6.2 The term force majeure shall be deemed to include every circumstance as a result of which fulfillment of an agreement cannot reasonably be expected of Scala, including war, impending war, mobilisation, civil unrest, a state of siege, labour strike, accident or illness of staff, fire, interruption of business, reduction of production capacity, lack of raw materials or packaging materials, use of incorrect materials, transport delays, import restrictions or other government regulations, all irrespective of whether these circumstances occur in Scala’s company or in another company involved directly or indirectly in the implementation of the agreement. The term force majeure shall also be deemed to include non-delivery by foreign companies for reason outside Scala’s control.
ARTICLE 7 RETENTION OF TITLE
7.1 Scala retains the title to the goods to be delivered and delivered, as well as to any goods given in loan as long as the contracting party has not paid the price in full. The retention of title extends to the principal sum as well as to any claim for compensation, including interest.
7.2 As long as the ownership rights of the goods sold by Scala have not been transferred, the contracting party is obliged to keep those goods separately and safeguard them with due care.
7.3 When invoking its right of retention of title, Scala is entitled to collect the goods from where they are located. The contracting party is liable for all Scala’s costs in respect of the exercise of the retention of title, including but not limited to, transport costs, storage charges and destruction costs.
7.4 The contracting party authorises Scala to enter any building or premise belonging to, leased by, or used by the contracting party in order to exercise the rights in respect to the retention of title.
7.5 The contracting party obliges itself towards Scala to inform Scala immediately of any seizure of moveable property. The contracting party is obliged to inform the seizure by return of post of the situation if a right of retention is vested on the seized goods.
7.6 In the event that Scala cannot exercise its rights under the retention of title, the purchaser shall owe Scala an immediately payable penalty of 10% of the principal amount owed by the purchaser to Scala, with a minimum of 250 euros per day or part of a day that the purchaser is in default of compliance with its obligation and shall give Scala the opportunity to exercise its right under the retention of title, all the above without prejudice to Scala’s other rights arising from the agreement entered into with the purchaser, the law and these terms and conditions.
ARTICLE 8 COMPLAINTS AND INSPECTION
8.1 Scala’s contracting party is obliged to inspect the goods on, for example, quality and quantity the moment the goods are delivered.
8.2 If the contracting party wishes to make a complaint, he is obliged to inform Scala of these complaints in writing within 8 days of delivery. After
expiry of this term, the right of the contracting party to rely on any defect or incorrectness in the goods delivered expires unless it relates to a complaint in respect of a guarantee in the meaning of Article 9.
8.3 The contracting party is prohibited from returning the goods to which the complaint relates to Scala without Scala’s prior written consent, and such shipments must be accompanied by a return slip, stating the date and number of the invoice under which the goods were invoiced. Return-shipped goods not accompanied by a return slip will be refused. Return goods must be returned freight paid within 8 days.
8.4 Insofar Scala grants permission to return the delivered goods this does not imply any acknowledgement by Scala of the validity of the complaint. Irrespective of whether Scala has granted permission to return the delivered goods, such is done for the account and at the expense and risk of the contracting party. At the risk of forfeiting the right to complain, Scala must be provided the opportunity to inspect the goods to which the complaint relates at a time and in a manner to be determined by Scala.
8.5 The contracting party is not entitled to suspend its (payment) obligations towards Scala when a complaint is being dealt with.
ARTICLE 9 GUARANTEE
9.1 Scala guarantees the soundness of the goods when in normal use. This means that delivered goods which contains defects shall be repaired by Scala free of charge if the contracting party demonstrates that these defects have arisen within six months after delivery and that these defects are the direct result of the incorrectness or defectiveness of the materials used.
9.2 If during the guarantee period the contracting party carries out repairs, makes amendments to the goods delivered or have such done or processes or treats the delivered goods, Scala is never liable to observe any guarantee obligations towards the contracting party.
9.3 Only the contracting party can claim under the guarantee provided and this exclusively to the extent the delivered goods have remained in his ownership.
9.4 Scala’s guarantee obligations never extend beyond the guarantee obligations the supplier grants Scala.
ARTICLE 10 LIABILITY
10.1 Scala is never liable for loss suffered or to be suffered by the contracting party unless the loss suffered is the direct result of gross negligence or an intentional act by Scala or any third party engaged by it. Scala is never liable towards any third party who might have a legal relationship with the contracting party.
10.2 In further limitation of liability and the obligation to pay compensation, Scala stipulates that its liability never extends beyond that to which it committed itself on the basis of the guarantee provisions.
10.3 In further limitation of liability and the obligation to pay compensation, the contracting party accepts that Scala’s obligation to pay compensation never extends beyond the loss for which Scala is insured and to the extent the losses will be paid for by Scala’s insurance company.
10.4 To the extent Scala’s insurance company does not pay out, Scala is never liable to pay compensation to a higher amount than for which the goods, on which the liability is based, are delivered.
10.5 Consequential loss, trading loss, personal injury, environmental damage, loss due to operational failures, loss caused by third parties engaged by Scala, loss arising during or related to transport irrespective of the cause, loss of income and loss arising from a different use of the goods than for which they were intended are never eligible for compensation.
10.6 Scala stipulates towards the contracting party that the limitations in liability as referred to in these standard terms and conditions can also be invoked against the contracting party by employees of, or any third party engaged by, Scala.
10.7 Scala is never liable for mistakes in any drawings, calculations, product descriptions, availability information, measurements, appendices, specifications and technical information it has provided.
ARTICLE 11 PROPRIETARY RIGHTS / COPYRIGHTS
11.1 In the event that Scala commissions the design and/or manufacture of new and original products, Scala shall hold the proprietary rights / copyright to said products. Copying Scala’s products and/or using Scala’s models and moulds for other parties in any way is prohibited in such cases.
11.2 The purchaser indemnifies Scala against all claims from third parties in the matter of the goods supplied by Scala, unless it is determined in court that said claims are a direct consequences of gross negligence on the part of the vendor and that the purchaser can demonstrate that it has no blame whatsoever in the matter. The purchaser indemnifies Scala against all claims from third parties concerning alleged breaches of their copyright, patents or models used in manufacture, or similar, by or in the name of third parties, the purchaser or the producer.
11.3 In the event that Scala sells to the client, under the agreement entered into with the client, any rights belonging to us (copyrights, world copyrights) or rights of any nature whatsoever to film, video, slide or other material, said rights shall remain wholly the property of Scala until such a time as the client has fully met its financial obligations vis-à-vis Scala arising from the agreement entered into with Scala. All the provisions of these terms and conditions apply equally in the case of sale of the rights. In the event that the client has not met its financial obligations within 8 days of being served notice of default, Scala shall be entitled to dissolve the agreement immediately by written declaration, and the sold rights for which the agreement on which the sale was based shall fully return to Scala. In such cases, the client shall then no longer be entitled to use the repossessed rights in any context whatsoever, and shall be required to submit to Scala at Scala’s request all manufactured copies and similar, and/or to pay Scala compensation for loss equivalent to the retail price of the materials manufactured by the client.
ARTICLE 12 DISSOLUTION
12.1 Scala shall be entitled to dissolve all agreements, with due observance of the provisions in the Dutch Civil Code, wholly or partially, irrespective of whether Scala is entitled to compensation for loss, in the event that the client does not comply with these terms and conditions. Scala shall in any event be entitled to dissolve the agreement by unilateral declaration and without any notice of default in the event that:
I the client is declared bankrupt, applies for or is granted bankruptcy or protection from its creditors, or is placed under administration/tutelage or curatorship;
II the client wholly or partly suspends business operations, liquidates or partially/wholly transfers its company;
III a prejudgment or enforceable attachment is made on the goods held by the client, or a part thereof.
As a result of the dissolution declaration, all Scala’s claims become immediately payable.
12.2 Rights to Return Goods. At no time shall Scala grant its clients the right to return products sold and/or supplied by Scala, unless this has been explicitly agreed in writing for the products in question. Scala has a tacit right to return goods purchased from its long-term suppliers, whereby the regular return of goods is deemed to be a durable common provision, involving the right to return similar goods to the same supplier.
ARTICLE 13 COMMUNICATION WHEN CONTRACTING VIA THE INTERNET OR E-MAIL
13.1 Any communication between Scala and the contracting party can take place electronically, except insofar as not provided otherwise in these standard terms and conditions, in agreements or by law.
13.2 The version of the communication with the (future) contracting party as stored by Scala is evidence of such, subject to proof to the contrary by the contracting party.
13.3 Any electronic communication from Scala is deemed to have been received at the time of sending, unless the contrary has been proved by the (future) contracting party. If a communication from Scala has not been received due to a delivery and/or access problem in respect of the e-mail box of the (future) contracting party for example, such is at the expense of the (future) contracting party, even if the e-mail box is located at a third party.
ARTICLE 14 INFORMATION OBLIGATIONS SCALA WHEN CONTRACTING VIA THE INTERNET
14.1 The (future) contracting party itself is responsible for any required storing and printing of the standard terms and conditions of Scala, as well as for the accessibility of the copy.
14.2 Scala is not obliged to keep any possible archived agreements or to keep the standard terms and conditions accessible to the contracting party.
14.3 Via its website Scala provides information on, amongst other things, Scala itself and the goods to be delivered as regards content and weight..
ARTICLE 15 PRIVACY WHEN CONTRACTING VIA E-MAIL OR THE INTERNET
15.2 The contracting party is aware that Scala processes the personal details of the contracting party including information on the activities of the contracting party on the website, such as pages visited, the time spent on the various parts of the website, the internet address of the website from which the contracting party originates and products the contracting party has ordered. Scala retrieves this information from a database which is used in the performance of the agreement in order to improve the service provision to the contracting party and to provide information or offers to the contracting party.
ARTICLE 16 APPLICABLE LAW AND COMPETENT COURT
16.1 All disputes occurring in the implementation of or in relation to an agreement shall be put, to the exclusion of all other courts, before the competent court in Zwolle/Lelystad, inasmuch as the law does not stipulate mandatory a different court, and unless Scala decides to put the dispute before a different court which has competence in the matter.
16.2 Dutch law shall apply to all agreements to which these terms and conditions wholly or partly apply, to the exclusion of the laws of all other countries.
ARTICLE 17 FILING
17.1 These general terms and conditions of sale and delivery were filed on [new date] with the registry of the District Court in Zwolle/Lelystad, and with the Chamber of Commerce.
17.2 All Scala’s previous general terms and conditions of sale and delivery lapsed as of that date. Thus determined in Almere on 19-06-2014.