GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
General Terms and Conditions of Sale and Delivery
Version valid from 1 October 2021
1.1. General Terms and Conditions: These general terms and conditions of sale and delivery.
1.2. Buyer: The buyer or potential buyer of Products.
1.3. Products: The goods and services offered, sold and (to be) delivered by Seller to Buyer, as well as work performed or to be performed.
1.4. Agreement: Each agreement between Seller and Buyer, including the General Terms and Conditions, concerning the sale and delivery of Products by Seller.
1.5. Seller: Coppa Cocktails B.V. or any affiliated company, which has declared the General Terms and Conditions applicable and has entered into an Agreement with Buyer.
2.1. The General Terms and Conditions apply to the formation, contents and execution of the Agreement, as well as to all other legal acts and relationships between Seller and Buyer.
2.2. In the event of any conflict or inconsistency between them, the terms of these General Terms and Conditions will take precedence over any other terms purported to apply to the Agreement and shall take precedence over any terms set out in any ordering of other documents purported by Buyer to apply. Any and all provisions deviating from or supplementary to the General Terms and Conditions shall only have effect if such provisions have been accepted in writing by Seller and shall only be applicable to the relevant Agreement.
2.3. The invalidity of one or several provisions of the General Terms and Conditions shall not affect the validity of the remaining provisions. Should any provision of the General Terms and Conditions or the Agreement be invalid for whatever reason, the parties will negotiate on the contents of a new provision, which shall be similar to the contents of the invalid provision as much as possible.
2.4. In the event of resale or distribution of the Products by Buyer, Buyer is obliged to impose on its own buyer, if and insofar as applicable, the rights and obligations Buyer has towards Seller under Articles 8, 9, 10 and 14 of these General Terms and Conditions by way of a perpetual clause.
3.1. Quotations made by Seller do not constitute a legally binding offer and may be revised or revoked by Seller at any time prior to the conclusion of the Agreement, even when a term for acceptance has been given by Seller. Unless Seller has indicated otherwise in writing, a quotation will be deemed to be revoked in any case after a period of 30 calendar days has lapsed from the date of the quotation.
3.2. An Agreement will only be concluded when Seller accepts, in writing (scanned or original) or an explicit and unambiguous acceptance by e-mail, or a verbal or written order from Buyer, within 2 days of receipt thereof or when Seller has commenced execution of the order, which is perceptible to Buyer.
3.3. Seller may require a written confirmation from Buyer of an order placed by telephone, in the form of a copy, signed for approval by Buyer, of the quotation, order confirmation or acceptance submitted by Seller, as the case may be.
3.4. No amendment of the Agreement will be effective unless it is signed by both Seller and Buyer.
4.1. All prices provided by Seller in price lists, catalogues, brochures, information on websites, quotations, order confirmations, written acceptances or otherwise, are net prices and are thus exclusive of turnover tax (VAT) and any other levies imposed by the relevant authorities, and of any other amount paid for by Seller to any third party for the benefit of or at the request of Buyer in connection with the execution of the Agreement (including for instance transport costs). If applicable, all such taxes, levies and amounts will be borne by Buyer.
4.2. Seller will have the right to pass on to Buyer all increases in costs caused by the implementation or amendment of any statutory provision pertaining to applicable levies, taxes or permits during the execution of the Agreement.
4.3 Seller shall be entitled to adjust the applicable prices at any time by providing written notice to Buyer at least 3 months in advance. If Buyer does not wish to agree to such an adjustment, Buyer shall, within 30 days after the notice, be entitled to terminate the Agreement before the date on which the adjustment would have become effective.
4.4. Any discounts given by Seller refer solely to the net price and are only applicable to the relevant Agreement.
- Authorities of Seller
5.1. Seller may determine a minimum purchase quantity for each Product, below which Seller will not enter into an Agreement for said Product.
5.2. The manner in which the Products are packed is determined by Seller and may be changed at any time. In such event, Seller will, insofar as possible, inform Buyer thereof in advance.
6.1. Seller will deliver “ex works” (Incoterms 2020) at Seller’s business locations in Zevenaar, the Netherlands. Every other manner of delivery must be agreed upon in writing.Unless otherwise explicitly agreed upon in writing, Seller will determine the manner of dispatch, transport and the like, without Seller bearing any responsibility whatsoever with regard thereto.
6.2. Empty packaging, charged to Buyer by Seller, will be taken back by Seller at the price charged, provided that the packaging concerned is received back by Seller undamaged and in good condition, postage paid. For packaging received back at a later date than the agreed return date, a monthly rent is charged , amounting to 10% of the price charged, in which respect each part of a month is counted as a full month.
6.3. In mutual consultation between Seller and Buyer, a period will be fixed within which Seller will deliver to Buyer. The period referred to will not commence until Seller has received the quotation, order confirmation or written acceptance, as the case may be, signed for approval by Buyer, and all other information necessary for the delivery. If the term of delivery or collection is exceeded, Buyer will not be entitled to any compensation, nor will such non-compliance with the term of delivery constitute any ground for refusal of the goods and/or non-payment.
6.4. Seller will at all times have the right to deliver the Product ordered by Buyer in partial deliveries. The provisions of the preceding paragraph also apply to partial deliveries. Any partial delivery is considered to be an independent delivery, so that any claims concerning a partial delivery will not affect earlier or later partial deliveries. Invoicing will take place per partial delivery.
6.5. The delivery period will be extended by the period in which Seller, as a result of force majeure, is unable to deliver. If the extension of the original period is more than one month, then both Seller and Buyer will have the right to dissolve the Agreement or -in the event of partial execution of the Agreement- the part thereof that has not yet been executed, by means of a written statement to that effect to the other party. Dissolution pursuant to this article does not entitle either party to any compensation whatsoever. ‘Force majeure’ in this respect includes: war, riots and other types of mobilisation, fire and accidents, machine or other breakdowns in the factory, whether or not as a result of errors made by the employees of Seller, transport impediments, flooding, frost and other weather conditions, government measures prohibiting or hindering delivery, failure by suppliers to supply or to supply in good time, failure by carriers or forwarding agents to supply in good time, failures on the part of auxiliary persons engaged by Seller, illness, disturbances, sit-down strikes and similar actions and all disruptions of the normal continuation of business operations of Seller, which are a result of circumstances beyond the control of Seller and which temporarily or permanently hinder the performance of the Agreement or make it considerably more difficult or expensive to do so.
6.6. The risk for loss of or damage to the Products will pass to Buyer from the time of delivery in accordance with this Article 6.
6.7. Buyer is obliged to cooperate in the delivery, as well as to receive the Products delivered. In the event of failure on the part of Buyer to cooperate in the delivery and receive the Products in good time, Seller will have the right to charge Buyer for additional costs incurred (including for instance storage costs).
- Quality and usability; complaints
7.1. Seller does not guarantee that its Products are bottled, labelled or packed in accordance with the legal requirements applicable in all territories of import or re-sale. Without a written undertaking to the contrary, the importation and sale of its Products in territories other than the Netherlands is therefore done at the exclusive risk of Buyer importing or re-selling Products into such territories. Furthermore Buyer agrees to indemnify Seller against all claims, costs or charges that Seller may become liable for in connection with such import or re-sale of the Products.
7.2. Buyer is obliged to inspect Products upon delivery for any defects with regard to quality, packaging and the like. Buyer must submit any complaint to Seller in writing within fourteen days of the time of delivery. In the event that a defect cannot be determined immediately upon careful inspection, the complaint must be made known to Seller in writing within 14 days of the time the defect should reasonably have been known to Buyer, in default of which Buyer will lose all claims against Seller as regards said defect. Submitting complaints does not entitle Buyer to suspend its payment obligation(s).
7.3. In the event that timely filed complaints are accepted by Seller as well-founded, Seller will send Buyer, at Seller’s discretion, a credit note for the net invoice amount of the relevant Products that do not comply with the Agreement, or Seller will perform anew as soon as possible.
- Labelling and packaging; promotional materials
8.1. Without the prior written permission of Seller, Buyer is not permitted to offer or (re)sell the Products delivered in any packaging and/or with any labelling other than the original packaging and/or labelling of Seller. However, Buyer may offer or (re)sell individual Products that have been delivered in bulk packaging, provided the individual Products are offered or (re)sold in the original packaging and/or labelling of Seller.
8.2. Furthermore, Buyer is not permitted, without the prior written permission of Seller, to use the distinguishing characteristics protected by Seller by copyright and trademark rights, other than by (re)selling the Products delivered.
8.3. The promotional materials that Seller may make available to Buyer, whether free of charge or otherwise, in support of the sale of the Products, shall at all times remain the property of Seller. Upon Seller's first request, Buyer shall return said promotional materials to Seller carriage-free and for the own risk of Buyer.
8.4. Buyer is not permitted to create and/or use or have third parties create and/or use promotional or other marketing materials, indications and/or communications for the Products without Seller's prior written approval. Buyer will also impose this obligation on its customers.
- Intellectual property
9.1 As between Seller and Buyer, all intellectual property rights, in whatever form, embodied within:
(a) the Products; and,
(b) any promotional or other supporting materials provided to Buyer by Seller in connection with the Products or otherwise under or in connection with the Agreement;
(c) or otherwise arising from the performance of the Agreement by Seller;
hereinafter, in this provision, collectively referred to as: the "Property"),
shall belong to Seller, unless explicitly agreed otherwise. Buyer declares to be familiar with the intellectual property rights in the Property from and/or used by Seller. Buyer shall only acquire the rights of use expressly granted in these General Terms and Conditions and by law. Any other or more extensive right of Buyer shall be excluded. A right of use to which Buyer is entitled shall be non-exclusive.
9.2 Upon resale/onward supply, Buyer will market the Products exclusively under the intellectual property rights established by Seller and demand from its purchaser by way of perpetual clause that the Products be resold only under those intellectual property rights.
9.3 Buyer declares not to infringe any of the intellectual property rights established by Seller and to inform Seller immediately of any infringement. Buyer agrees to use its best efforts to assist Seller to the extent necessary to protect the rights in the intellectual property rights. If any infringement by a third party of the intellectual property rights in the Property or any other unlawful act prejudicial to the interest of Seller comes to its attention, Buyer shall promptly notify Seller of such act. Seller has the sole right and option to undertake and conduct the defence of any action, claim or suit so brought. Buyer shall reasonably cooperate with Seller in any action, claim or suit undertaken and conducted by Seller.
9.4 Any intellectual property rights under or in connection with the Agreement which are owned by Buyer are hereby transferred in advance by Buyer to Seller at the time they arise, which transfer is hereby accepted by Seller in advance. To the extent that the transfer of these rights would at any time require a further deed, Buyer irrevocably authorises Seller in advance to draw up any such deed and to sign it on behalf of Buyer, without prejudice to Buyer's obligation to cooperate in the transfer of these rights at Seller’s first request.
9.5 If there is a difference of opinion between the Parties concerning the intellectual property rights referred to in this Article, it will be assumed, in the absence of proof to the contrary, that Seller is entitled to those intellectual property rights.
9.6 Buyer hereby waives towards Seller any moral rights (including personal rights) to which he, Buyer and Buyer’s personnel, may be entitled as referred to in the Dutch Copyright Act, to the extent that the applicable regulations permit such a waiver.
9.7 Buyer indemnifies Seller against claims from third parties in respect of (alleged) infringement of intellectual property rights of those third parties, including similar claims relating to knowledge, unlawful competition and the like, in connection with the rights transferred to Seller in accordance with this Article 9.
- Clearance of customs documents
At the time Buyer or Buyer’s carrier takes receipt of the customs documents for a batch of Products that are delivered with customs documents, Buyer assumes liability to ensure (full) clearance is given. If and at such time as Buyer or Buyer’s carrier signs the CMR waybill (waybill based on the United Nations Convention on the Contract for the International Carriage of Goods by Road) or the standard consignment note belonging to the relevant consignment in acknowledgement of receipt, this will constitute comprehensive proof for receipt of the customs documents stated thereon. Buyer will indemnify Seller against all claims from third parties, including the tax authorities and customs, resulting from the fact that (full) clearance of the relevant customs documents, as referred to on the CMR waybill or the standard consignment note, was not obtained. The basis for this obligation to indemnify is, in so far as this concerns excise duty and other levies, the document whereon an obligation to pay is laid down or imposed, temporarily or otherwise. In any case, the obligation to indemnify, in so far as this concerns excise duty and other levies, is applicable from the time Seller has delivered the customs documents, in accordance with this stipulation, to Buyer or Buyer’s carrier.
- Limitation of liability
11.1. Seller, as well as Seller’s subordinates and any third party engaged by Seller for whom Seller is liable, shall not be obliged towards Buyer to compensate for costs, damages and/or interests resulting and/or arising from personal injury or damage to goods caused by the Products, if and in so far as this is not due to the wilful intent or gross negligence on the part of the management of Seller.
11.2. Seller, as well as Seller’s subordinates and any third party engaged by Seller, shall not be liable towards Buyer for damage and/or loss caused by errors or omissions of third parties or by chemical effects or induction of materials not used by Seller.
11.3. In the event that Buyer has delivered products to a third party, which partly consist of the Products delivered by Seller to Buyer, Seller shall not be liable for product liability ensuing from a defect in said products delivered by Buyer to said third party, except if and insofar as Buyer proves that the personal injury or damage to goods was solely caused by the Products delivered by Seller, in which latter event the first paragraph of this Article 11 shall apply.
11.4. The liability of Seller shall in any case always be limited to direct damages to a maximum amount equal to the net price (the price as referred to in Article 3 of the General Terms and Conditions) of that Agreement, or, in the case of a partial delivery, of that part of the Agreement to which the case of damage is most closely related.
11.5. Buyer will indemnify Seller, Seller’s subordinates and any third party engaged by Seller, against all and any claims enforced by third parties against Seller by reason of the circumstances referred to in the previous paragraphs of this Article 11. Buyer will pay, in full, all damage and/or costs, connected with such claims, including any costs for legal assistance.
11.7. Under no circumstance is Seller liable for damage consisting of loss of turnover or goodwill or business, decline in proceeds, loss of profit or anticipated savings, loss of use, or for other special, indirect or consequential damage whatsoever or howsoever.
- Terms of payment
12.1. All payments must be made in euros upon delivery, unless otherwise agreed upon in writing.
12.2. All payments must be made without any discount whatsoever. Buyer waives the right to put up the defence of set-off or to defer payment in respect of Seller or a company affiliated to the latter.
12.3. Bank transfers will only become valid when the relevant amounts have been credited to the bank account of Seller.
12.4. In the event that Buyer is in default of payment of the amount owed by Buyer, within the applicable payment period, as well as in the case of involuntary liquidation and moratorium on payments, all the amounts owed by Buyer to Seller will become immediately due and payable in full by operation of law, without any warning or notice of default being required thereto. In such case, all judicial and extrajudicial costs incurred at that time by Seller in order to collect the amounts due to Seller will be payable by Buyer.
12.5. Extrajudicial collection costs payable by Buyer will be assessed in accordance with the Extrajudicial Collection Costs Decree (Besluit vergoeding voor buitengerechtelijke incassokosten) and amount to EUR 250 as a minimum, unless the actual extrajudicial collection costs are higher, in which case Buyer will owe the actual extrajudicial collection costs to Seller.
12.6. In the event of failure to pay any amount in good time within the period agreed upon, Seller shall furthermore have the right to demand payment of interest of 1.5% per month, taking effect from the due date of the term of payment and to be calculated over the amount then due and payable, in which respect every part of a month will be counted as a full month, on the understanding that the interest charged by Seller will under no circumstance be lower than the statutory interest.
12.7 Seller reserves the right to amend and/or withdraw any credit terms from time to time at its sole and absolute discretion.
In the event that Buyer:a) files a petition for its own bankruptcy, is declared bankrupt, assigns an estate, petitions for a moratorium on payments, or part of Buyer’s assets are seized and this is not lifted within ten days of seizure;
c) fails to pay an invoice amount or a part thereof within the specified term; or
d) discontinues its company or an important part thereof or decides to do so,
- Retention of title
Seller retains title to all Products delivered by Seller until such time as Buyer no longer owes Seller any sums of money, to be increased by all applicable collection costs and interest, for deliveries made to Buyer by Seller. Until such time as Buyer has fulfilled all (payment) obligations towards Seller pursuant to the Agreement, Buyer is not entitled to encumber the delivered Products or to alienate them other than in the course of Buyer’s ordinary business operations. Buyer must inform Seller promptly of any claims by or attempts on the part of third parties to get the Products subject to Seller's retention of title under their control or to seize them, and must confirm this forthwith to Seller in writing. Seller shall at all times (therefore also outside the normal business hours of Buyer or Buyer's holders) have the right to collect the delivered Products from Buyer or Buyer’s holders, or to have the Products collected, in the event that Buyer fails or Seller has reason to assume that Buyer will fail to fulfil its obligations towards Seller in full, irrespective of whether Buyer has fulfilled its (payment) obligations as regards the specific Products to be collected. Buyer and its holders are obliged to fully cooperate in this matter. At its own expense Buyer must properly insure and keep insured the Products that are subject to Seller's retention of title against ordinary operating risks.
- Applicable law and competent court
Unless otherwise explicitly agreed upon in writing, all Agreements and all Agreements ensuing therefrom are exclusively governed by the laws of the Netherlands. All disputes arising between Buyer and Seller shall be settled by the competent court in Arnhem, the Netherlands. However, Seller shall have the right to bring a dispute before the court within whose jurisdiction Buyer has its domicile. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded for all Agreements between Buyer and Seller.
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