Under these terms and conditions Indigo People vof (the Seller) agrees to supply to you (the Customer) the goods shown over the page (the Goods).
1. THE CONTRACT
1.1. Unless the Seller agrees otherwise, all the terms and conditions of this contract are contained within this document and these terms and conditions shall supersede any earlier sets of terms and conditions appearing in the Seller’s catalogues or other professional materials or elsewhere. Any other terms and conditions are specifically excluded including (without limitation) any terms and conditions which the Customer purports to apply.
1.2. No employee or agent of the Seller has any authority to vary these terms orally or to make any representation on behalf of the Seller as to their effect. No addition to or variation of these terms shall be binding on the Seller unless in writing signed by a director of the Seller.
2.1. Any price quoted by the Seller or comprised in the order is provisional only and is subject to the Seller’s right to increase the price to reflect any increase in the cost to the Seller which is due to factors occurring after the making of the contract of sale which are beyond the reasonable control of the Seller (including, without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing costs). Any such increases in price will be notified to the Customer prior to delivery and the Customer agrees to pay the increased price even if any delay in delivery is caused by the Seller.
2.2. All prices are exclusive of VAT which shall be due at the prevailing rate on the date of the VAT invoice.
3.1. All payments under this contract shall be made in the currency of this order unless otherwise agreed by the Seller in writing.
3.2. Payment is due from the Customer on the earlier of:
3.2.1. 30 days from the date of the Seller’s invoice (even if the Goods have not been delivered and title to the Goods has not passed to the Customer); or
3.2.2. 30 days from the delivery of the Goods (even if the Seller has not invoiced the Customer for those Goods).
4. LATE PAYMENT
4.1. If the Seller has not received payment from the Customer on the due date the Seller may (without prejudice to any other remedies or rights):
4.1.1. suspend or cancel any deliveries to the Customer;
4.1.2. retain any payments that the Customer has made on account under this or any other contract with the Seller;
4.1.3. charge interest on the amount outstanding at the rate of 3% per month (calculated on a day to day basis until full payment is made);
4.1.4. charge the Customer all costs and expenses of whatever nature incurred by the Seller as a result of the suspension or cancellation.
5.1. The Seller will ensure that the Goods are packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport and will pay the full cost of this packaging.
6.1. Delivery within the Netherlands will be at the cost of the Customer.
6.2. If delivery is to destinations outside the Netherlands, consignments are delivered either EX-WORKS or to the Customer’s premises as specified in the Seller’s quotation.
6.3. Any time or date the Seller gives for delivery is an estimate only and the Seller shall not be liable for the consequences of any delay.
6.4. Where the Seller names a period for delivery and such a period is not extended by mutual consent in writing the Customer shall take delivery within that period.
6.5. If the Seller does not name a period for delivery then the period for delivery shall be within 3 months of the date when the Seller gives notice in writing to the Customer that the Goods are available for delivery and the Customer shall take delivery within that Period.
6.6 If the Customer is unable to accept delivery of the Goods during the period of time when delivery has become due, the Seller may:
6.6.1. treat the Customer’s failure as a repudiation of the contract and terminate the contract with immediate effect in which case the Seller may do any of the following, either alone or in any combination:
(i) dispose of the Goods as it thinks fit;
(ii) retain any payments made by the Customer before termination of the contract;
(iii) recover from the Customer any costs incurred in respect of the costs of storage of the Goods or of their disposal, together with damages for any other losses caused by the Customer’s breach; or
6.6.2. arrange for storage of the Goods, in which case:
(i) the Goods shall be stored at the Customer’s risk;
(ii) the cost of storage shall be for the Customer’s account and the Customer will indemnify the Seller against all costs incurred by the Seller in arranging such storage;
(iii) the Customer will pay the Seller a reasonable fee for its services in arranging for storage of the Goods;
(iv) the Seller may at any time give the Customer notice to collect the Goods and, if the Customer fails to comply with such notice, treat the Customer’s breach as repudiatory, in accordance with clause 6.6.1 above, or continue to store them in accordance with this clause.
6.7 If delivery is delayed by force majeure circumstances (as defines below), the following provisions shall apply:
6.7.1. the Seller shall as soon as is reasonably practicable give the Customer notice of the reasons for the delay, provided that the Seller shall incur no liability by reason of any failure to give notice;
6.7.2. the Seller’s duty to deliver shall be suspended for so long as the force majeure circumstances continue and the time for the delivery shall be extended by an equivalent period;
6.7.3. the Seller may at any time and at its sole discretion give notice to the Customer to terminate the contract. In that case the Seller shall incur no liability to the Customer for any losses caused as a result of the termination.
For the purposes of this clause, ”force majeure circumstances” means circumstances beyond sellers control, including (without limitation) fire, flood, storm, act of God, war, riot, civil commotion, strikes, lock outs and other industrial action.
7. RISK AND TITLE
7.1. The risk of any loss, deterioration or damage to the Goods from whatever cause will pass to the Customer on the earlier of:
7.1.1. the Goods being despatched from the Seller’s premises; or
7.1.2. the Seller notifying the Customer that the Goods are available for delivery.
7.2. Despite delivery and the passing of risk in the Goods, the Customer will not receive title to the Goods until the Seller has received in cash or cleared funds:
7.2.1. all sums due from the Customer to the Seller in respect of the Goods;
7.2.2. all sums due from the Customer to the Seller on any other account.
7.3. Until title to the Goods passes to the Customer in accordance with clause 7.2, the Customer shall hold them as the Seller’s fiduciary agent and bailee and shall store them separately from any similar goods of the Customer or any other person in such a way that they remain identifiable as the Seller’s property.
7.4. The Customer may resell the Goods before the condition in clause 7.2 are satisfied and until the occurrence of any of the events specified in clause 7.5 in the following circumstances;
7.4.1. any sale shall be effected by the Customer as agent for the Seller, provided that the Customer shall have no authority to create privity of contract between the Seller and any customer to whom the Goods are sold;
7.4.2. the Customer will hold the proceeds of any such resale as trustee for the Seller, separate from its own monies in a separate, identifiable bank account.
7.5. The Customer’s right to possession of and to resell the Goods supplied by the Seller shall terminate if the Customer is declared bankrupt or makes any proposal to his creditors for any composition or voluntary arrangement or, if the Customer is a company, an administrator, administrative receiver or liquidator is appointed in respect of its business or the Customer takes any similar action in consequence of debt or insolvency.
7.6 The Customer hereby grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are stored in order to inspect them or, where the Customer’s right to possession has terminated, recover them.
8.1. From the date of despatch by the Seller of the Goods, the Seller may arrange insurance in respect of any of the Goods regarding the whole or part of the period from the date of despatch until the date of payment of the full purchase price. The cost of this insurance will be payable by the Customer.
9. SALE BY DESCRIPTION OF THE GOODS
9.1. Where the Seller has provided a description of the Goods in a catalogue or elsewhere, this description is given by way of identification only, it shall not constitute a sale by description.
9.2. Where the Customer was shown and inspected a sample of the Goods this was to enable the Customer to judge the quality of the bulk of the Goods and does not constitute a sale by sample under this contract.
The Customer hereby accepts the risk that the Goods may not correspond in all aspects with the sample given.
10.1. The Seller warrants that the Goods conform to the contract specification provided that the Seller shall have no liability for any alleged failure of the Goods so to conform unless such failure is notified to the Seller within 14 days of their being delivered.
10.2. If any of the Goods are found not to be in accordance with the contract specification (Non-compliant Goods) or where the Customer shows that there was a shortfall in the quantity of the Goods supplied the Customer shall (in the case of Non-compliant Goods) return the Non-compliant Goods within 14 days of actual delivery and (in both cases) the Seller may at its sole option either:
10.2.1. at its own expenses replace or repair the Goods (or any part) (in the case of Non-compliant Goods) or (in the case of a shortfall) supply additional goods; or
10.2.2. refund to the Customer the price or proportionate part of the price paid.
10.3. The Customer will have no further claim against the Seller in respect of the Goods which were replaced, repaired, refunded or supplied in addition (as appropriate) and the Seller’s entire liability in respect of the Goods is limited to the price paid by the Customer for the goods in question or, if greater, the proceeds of any insurance policy received by the Seller in respect of the relevant Goods.
10.4. The Seller shall not be liable for any economic loss suffered by the Customer as a result of the failure of any Goods to conform to the contract specification, including (without limitation) loss of profits, business, goodwill or other consequential losses.
10.5. The Seller does not warrant that the Goods are fit for any particular purpose of the Customer.
10.6. Save as provided for in this clause and except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall have no liability for any defect in the quality of the Goods or their failure to correspond to any description or sample or to be fit for any purpose and all other conditions, warranties, stipulations and undertakings, whether express or implied by statute or common law are excluded.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. Indigo People vof owns a number of rights in the design of the Goods and in the name Indigo People vof. These rights may include registered and unregistered trade marks, copyright and design right.
11.2. If it is alleged that the Goods infringe any intellectual property rights (as defined below) of any third party the Customer shall:
11.2.1. promptly notify the Seller of the alleged infringement;
11.2.2. allow the Seller to defend such third party claim as it thinks fit and have sole control at the Seller’s expense of any litigation and/or negotiations relating thereto;
11.2.3. not without the Seller’s consent make any admission of liability.
For the purpose of this clause intellectual property rights means patents, copyright, registered and unregistered design rights, registered and unregistered trade and service marks, confidential information and such rights as are protected by the law of passing off.
11.3. The Customer will not without the Seller’s permission resell any Goods from which any label or logo has been removed or altered.
12.1. This contract shall be subject to and construed in accordance with Dutch law.
13.1. If any provision of this contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this contract and the remainder of the provision in question shall not be affected.
14. RESALE OF GOODS
14.1. The Customer agrees that the Goods shall be resold either by the Customer of by any sub-purchaser by retail only through outlets of a suitable standard to maintain the prestige and image of the Indigo People brands. The Customer agrees to notify the Seller in writing of the relevant outlets and if the Seller objects to such outlets the Customer agrees to cease to sell the Goods through that outlet or any other outlet of a similar standard or image.
THIS ORDER IS SUBJECT TO CONFIRMATION BY INDIGO PEOPLE VOF AND A CONTRACT OF SALE WILL ONLY ARISE WHEN THIS ORDER HAS BEEN ACCEPTED IN WRITING BY INDIGO PEOPLE VOF.