General Terms and Conditions of Payment and Delivery
Global Beauty Secrets B.V.
Filed with the Dutch Chamber of Commerce for Brabant
under number 54736552.
Version: November 2012.
Also to be viewed on the website
Clause 1. General
1.1 In these General Terms and Conditions of Payment and Delivery the terms set out below have the following meaning:
Clause 2. Applicability
2.1 The General Terms are applicable to all offers, quotations, Agreement and other agreements and legal relationships between GBS and the Buyer.
2.2 The applicability of any general (purchase) conditions of the Buyer are explicitly rejected by GBS unless explicitly otherwise agreed in Writing.
2.3 GBS will at all times be entitled to amend the General terms. Such an amendment will become effective fourteen (14) days after the date on which the amended General Terms have been sent to the Buyer. If the Buyer objects in Writing to the amendment within these fourteen (14) days, the original General Terms will continue to be applicable with regard to the Buyer.
2.4 Moreover, any deviations or additions to the General Terms will only be effective if they have been confirmed in Writing by the lawful representative of GBS.
2.5 The fact that GBS does not immediately exercise any right derived from these General Terms will not constitute a waiver and neither will any partial exercise exclude any further exercise of the right. The Buyer can never exercise any right on the basis of the fact that GBS has applied the General Terms leniently.
2.5 The General Terms always prevail over any conditions of the Buyer which conditions are referred to in any quotation, price list, invoice or in other correspondence.
Clause 3. Offers, quotations and formation of the Agreement
3.1 All offers and quotations of GBS are without obligation, unless explicitly otherwise determined. Any offer or quotation in connection with the sale and delivery of the Products is valid for thirty (30) days.
3.2 An Agreement will only be formed after an application or order of or on behalf of the Buyer has been confirmed in Writing by GBS. Subject to any evidence to the contrary the accounts of GBS will be decisive and binding with regard to the contents of the Agreement and these details serve as evidence of the Agreement.
3.3 In the event that payment in advance has been agreed GBS will send an advance invoice to the Buyer which must be paid in full within the set period. Should the Buyer remain in default, the Agreement will be cancelled by operation of law.
3.4 GBS will at all times be entitled to refuse in whole or in part an application or order without stating the reasons even if the Buyer has already previously bought Products from GBS, without becoming liable to pay damages in any way whatsoever by doing so.
3.5 GBS reserves the right to make any changes to the content of flyers, brochures, catalogues, pricelists, website or any other of its statements and GBS will not be bound by them.
3.6 The Buyer warrants and guarantees GBS that the (business) information notified by the Buyer to GBS in the application or order is accurate and complete.
Clause 4. Prices and administrative costs
4.1 The prices of the Products are expressed in euros (€) unless otherwise specified. Unless otherwise stated, all amounts are excluding turnover tax, packaging, forwarding costs, transport costs, insurances, any import levies and other government levies.
4.2 The prices of the Products can be indexed every quarter on the basis of the Consumer Price Index (CPI) published by Statistics Netherlands (Centraal Bureau voor de Statistiek).
4.3 GBS is entitled to increase the agreed price unilaterally if, between the date of the Agreement and the intended delivery date, there is a price increase, for instance by GBS being charged by the supplier/products of the Products, raw materials, materials or parts, energy costs, salaries, taxes and/or government levies or national insurance contributions etc. GBS will inform the Buyer as soon as possible in Writing of such a change in price. If the Buyer does not agree with the announced change in price, he should inform GBS of this in Writing at the latest before the intended delivery date in which case GBS has the option of cancelling the Agreement or upholding the original price with regard to the Buyer.
4.4 GBS will charge the Buyer the amount of €25 for administrative costs if the Buyer enters into an Agreement representing a price of less than €250.
Clause 5. Payment
5.1 Unless otherwise agreed in Writing, any payments must take place without any suspension, discount or set-off for any reason whatsoever within fourteen (14) days after the invoice date, failing which the Buyer will be in default by operation of law, and therefore without any further notice of default being required, and the Buyer will owe interest due to late payment as from the invoice date onwards of 1.5% per month (including a part of a month) and (extra-)judicial costs.
5.2 The court costs and extra-judicial collection costs of all amounts owed to GBS will be at the expense of the Buyer. The extrajudicial costs amount to 15 percent (15%) of the principal sum due with a minimum of €250, on the understanding that if the actual collection costs exceed this, the Buyer must compensate the full costs incurred by GBS and notwithstanding its (legal) rights in the event of a breach of contract by the Buyer. In addition, the Buyer will be obliged to fully compensate the court costs.
5.3 Payments are always first deducted from amounts collected by GBS for goods which no retention of title as meant in Clause 7 of these General Terms can be invoked, thereafter they are deducted from the interest due, thereafter deducted from the (extra-)judicial costs and thereafter deducted from the oldest invoice still outstanding for which a retention of title as meant in Clause 7 of these General Terms can indeed be invoked, even if the Buyer states that the payment relates to a later invoice.
5.4 All payment obligations of the Buyer regardless of whether they have already been invoiced by GBS in this connection, become immediately due and payable if and as soon as the Buyer is in default with regard to GBS, the control of the Buyer changes by means of a change in its management board, a share transfer or otherwise, when the Buyer discontinues its business in whole or in part or disposes of it in any way, when the Buyer is declared bankrupt, applies for a moratorium, if the legal debt rescheduling scheme (wettelijke schuldsaneringsregeling: 'WSNP') is declared applicable to it (or any foreign insolvency system comparable with the Dutch bankruptcy, moratorium or legal debt rescheduling system is declared applicable to it), if an application to be placed under guardianship has been brought before the courts, if (a part of) its assets has/have been seized, and also if (a part of) its assets have been put under administration or it loses otherwise in whole or in part the management and/or the power to dispose of its assets and moreover when the Buyer, if it is a general partnership or a private or public company with limited liability, is being wound up or is being dissolved.
5.5 Before or during the performance of the Agreement GBS will at all times be entitled to charge advances and/or to demand security for the payment of its claim(s) and to suspend the performance of its obligations until the Buyer has paid the advances thus charged or has furnished the requested security. If the Buyer fails to pay such advances or to furnish such security, GBS will be entitled to dissolve the Agreement. All losses arising for GBS from this suspension and/or dissolution must be reimbursed by the Buyer.
5.6 The Buyer will not be entitled to suspend its payment obligation or make any deductions from or set-off its debt to GBS against a counterclaim on GBS.
Clause 6. Contract period and delivery
6.1 The Agreement between GBS and the Buyer is entered into for an indefinite period of time unless otherwise arising from the nature of the Agreement or if the Parties have explicitly agreed otherwise in Writing.
6.2 Unless explicitly otherwise agreed with GBS in Writing, the delivery of the Products will be ex works ('Ex Works' according to the Incoterms 2010) of GBS. Therefore the Products will be at the expense and risk of the Buyer from the warehouse from which they are to be delivered onwards, unless explicitly agreed otherwise in Writing.
6.3 The delivery will take place by GBS at the moment at which the Products are offered for delivery at the delivery address specified by the Buyer. If it has been agreed that the Products are to be collected by or on behalf of the Buyer, the delivery will take place at the moment at which the Products are ready for collection.
6.4 Unless explicitly otherwise agreed in Writing, GBS will take care of the transport of the Products ordered by the Buyer and the transport will be at the expense and/or risk of the Buyer and GBS will determine the manner of transport, the means of transport and GBS will appoint the carrier.
6.5 GBS is allowed to deliver the sold Products in parts. If the Products are delivered in parts GBS will be entitled to invoice each part separately.
6.6 Delivery times and periods agreed between the Parties and/or specified by GBS can never be considered as deadlines. Delays in the agreed delivery period are not considered as constituting a defect in the performance of the Agreement by GBS and do not constitute negligence by GBS and cannot (for that reason) result in any liability of GBS for damages. The Agreement between GBS and the Buyer cannot be dissolved by the Buyer on the grounds that the delivery period has been exceeded.
6.7 The Buyer has an obligation to buy and is obliged to enable GBS to deliver the ordered Products to it on the agreed delivery date or the Buyer must collect at GBS the Products sold on the agreed delivery date. In the event of the non-performance of one or other of these obligations the Products sold will be retained for not longer than one (1) month in the warehouse of GBS or elsewhere. To this end for each day or part of a day the Buyer will owe to GBS an amount for storage costs of not more than 1% of the invoice amount with a minimum of €250. After the period referred to in the previous sentence has ended GBS will be entitled to sell the Products ordered to third parties and settle the proceeds of these with the Buyer or charge the Buyer for this, after deduction of compensation for loss suffered amounting at least to €250, on the understanding that if the actual loss is higher, the Buyer must compensate the full loss suffered by GBS.
6.8 GBS is entitled to have the delivery performed by third parties.
Clause 7. Retention of title and pledging
7.1 GBS retains the title to all Products it has delivered to the Buyer until the moment that all debts which the Buyer owes to GBS under the Agreement(s) or any other agreements, including any interest and (collection) costs, have been paid in full to GBS, all this as meant in Section 3:92 subsection 2 of the Dutch Civil Code.
7.2 For as long as integral payment of all the Buyer's debts to GBS has not taken place, the Buyer will not have the power or be entitled to place the Products subject to GBS' retention of title, in actual fact beyond its control, to dispose of them or to encumber them with any right, other than in the course of its normal daily business operations.
7.3 The suspensory condition as meant in Section 3:92 subsection 1 of the Dutch Civil Code will not be satisfied in the event of payment in connection with a debt of the Buyer to GBS by a third party who because of that payment subrogated in the rights of GBS.
7.4 In the event that and insofar as GBS' ownership of the Products delivered to the Buyer ends, the Buyer will now for then in advance grant to GBS a first pledge on all Products delivered or to be delivered by GBS to the Buyer as well as on its claims under the insurances as meant in the fifth paragraph of this Clause. This pledge serves as an additional security for all existing and future claims which GBS has or will have on the Buyer for any reason whatsoever. The Buyer states that it is entitled to grant this pledge and also that the pledged items and claims are neither encumbered with restricted rights nor that these restricted rights have been established in advance.
7.5 GBS grants an irrevocable power of attorney to perform for and on behalf of the Buyer all legal acts to establish the said pledges, insofar as they have not yet been established. The applicability of Section 3:68 of the Dutch Civil Code is excluded. Notwithstanding the foregoing the Buyer is moreover also obliged to perform all (legal) acts at the first request of GBS to this end which are or might be required in connection with the pledging meant in this Clause.
7.6 As soon as the Buyer fails to fulfil its obligations to GBS, GBS will have the power and be entitled to take back the Products or to take possession of them as the pledgee without any further notice of default being required. In order to carry out the said purpose, the Buyer authorises GBS now for then to access the place(s) or have the places accessed where the Products are situated, even when they might be placed with third parties holding the Products for the Buyer.
7.7 For as long as the Products are owned by GBS or it has a pledge on them the Buyer will be obliged to take out proper insurance against theft, fire, explosion, water and other damage for the respective items and to provide GBS with the policy of the respective insurances for inspection at the first request to this end.
7.8 If the Buyer defaults on payment and GBS, exercising its retention of title as meant in this Clause, takes back the delivered Products, the associated costs will be at the expense of the Buyer.
Clause 8. Complaints and period of limitation
8.1 The Buyer is obliged to check the Products delivered by GBS immediately on having received them with regard to any short deliveries, missing items, inaccurate or faulty delivery and visible defects and damage.
8.2 Short deliveries, missing items, inaccurate or faulty delivery and visible defects and damage must be submitted to GBS in writing via a registered letter stating the reasons within eight (8) days after the delivery and within the said period the respective Products must be returned to GBS at the expense and risk of the Buyer unless otherwise indicated by GBS, failing which the rights of the Buyer in this respect will lapse and the risk of any short deliveries, missed items, inaccurate or faulty delivery and visible defects and damage will remain at the expense and risk of the Buyer and therefore the Buyer will no longer be entitled to rectification, replacement or compensation.
8.3 Complaints with regard to invoices must be submitted to GBS in writing via a registered letter stating the reasons within fourteen (14) days after the invoice date, failing which the rights of the Buyer in this respect will lapse.
8.4 All other rights alleged by the Buyer due to failures in the performance of GBS' obligations or other defects in the Products delivered by GBS must be submitted to GBS in writing via a registered letter within fourteen (14) days after the Buyer discovered or could reasonably have discovered the defect, but not later than (1) one month after the delivery of the product, and - if faulty Products are involved - they must at the same time be returned to GBS at the expense and risk of the Buyer, failing which the rights of the Buyer in this connection will lapse. The rights of the Buyer in this connection will also lapse if without the explicit Written consent of GBS the Buyer itself has tried to remedy the alleged defect or had it remedied.
8.5 Provided timely complaints have been submitted according to the provisions of this Clause, GBS will replace or remedy the respective faulty Products returned to them, this at GBS' discretion.
8.6 Complaints as meant in this Clause do not suspend the payment obligations of the Buyer. In that case the Buyer also remains obliged to buy the remaining ordered Products and to pay for them.
8.7 If it becomes an established fact that a complaint is unfounded, the associated costs resulting from it including the costs of examination incurred on the part of GBS, will be fully at the expense of the Buyer.
8.8 GBS is not responsible for any misunderstandings or delays as a result of the (electronic) means of communication used in the communications between the Buyer and GBS. Any typing errors, colour differences or apparent mistakes and/or deviations in product details, illustrations, models or prices of Products on flyers, brochures, catalogues, pricelists, websites or in other statements by GBS are explicitly reserved and cannot be invoked against GBS.
8.9 Contrary to the statutory period of limitation, the period of limitation of all claims and defences of the Buyer with regard to GBS and any third parties engaged by GBS in the performance of an Agreement, amounts to one (1) year.
Clause 9. Warranty
9.1 The Products to be delivered by GBS must meet the usual requirements and standards which can reasonably be set on them at the time of delivery and for which they are intended in the Netherlands under normal use. The warranty mentioned in this Clause is applicable to Products intended for use within the Netherlands. In the event of use outside the Netherlands the Buyer itself must verify whether their use is suitable for the use there and complies with the conditions set on it. In that case GBS may stipulate a different warranty and different conditions with regard to the Products to be delivered.
9.2 Since the Products delivered by GBS are manufactured by third parties, the warranty referred to in the first paragraph of this Clause is restricted to manufacturer's warranty as provided by the suppliers and manufacturers of the Products.
9.3 If the Product shows a design, material or manufacturing fault GBS will replace or remedy the faulty Product, this at GBS' discretion, provided the reporting of the defect has been timely according to the provisions in Clause 8 and it is also covered by the manufacturer's warranty as meant in the second paragraph of this Clause.
9.4 The warranty given in this Clause is not effective if the damage is a result of normal wear and tear or inaccurate or improper use of the products or use after the best before date. The term 'inaccurate or improper use' in this connection means for instance: non-compliance with the instruction manual. Moreover, any warranty will also lapse if without the explicit Written consent of GBS the Buyer itself has tried to remedy the alleged defect or has tried to have it remedied.
9.5 The warranty given in this Clause only applies if the Buyer has fulfilled all its obligations to GBS.
9.6 The replacement or rectification of the Products during the warranty period does not result in an extension of this warranty period. GBS will charge the Buyer for any rectification or replacement including administrative, forwarding and transport costs other than pursuant to the warranty meant in this Clause.
Clause 10. Liability
10.1 Except insofar as exclusion of any liability on the grounds of mandatory law is not possible, GBS will not be liable for any unlawful acts or an (attributable) shortcoming in the fulfilment of its obligations or on the basis of any other legal ground.
10.2 Notwithstanding the provisions in the first paragraph of this Clause GBS will never be liable for:
a. trading, consequential or indirect loss (including also consequential loss, lost profits, missed savings, emotional damages and loss due to operational delays);
b. loss as a result of the intention or conscious recklessness of non-managerial employees of GBS or third parties engaged by GBS;
c. personal injury of the Buyer or end-users or of third parties as a result of the use of the Product (or the packaging).
10.3 The liability of GBS due to loss as a result of faults in Products delivered is limited to replacement or rectification of the respective Products, all this as provided in Clauses 8 and 9 of these General Terms and is in any event limited to the invoice value of the respective Product.
10.4 Notwithstanding the provisions with regard to complaints provided in Clause 8 of these General Terms, any claim for compensation on GBS will lapse, except for any claim(s) which has/have been admitted by GBS, by the mere lapse of one (1) month after the Buyer discovered or could have reasonably have discovered the damage.
10.5 Conditions limiting, excluding or determining liability which can be invoked by third parties against GBS, can also be invoked by GBS against the Buyer.
10.6 If the Buyer becomes aware that an incident has occurred in connection with a Product delivered by GBS which results in or can result in product liability as meant in Section 6:185 et seq. of the Dutch Civil Code, the Buyer must inform GBS of this in Writing immediately but at the latest on the first working day it becomes aware of it stating as accurately as possible the type of Product and the circumstances under which the incident occurred. Moreover, the Buyer will in that case be obliged to immediately discontinue the use of all similar Products (with the same catalogue number) and to return them to GBS to be checked at the first request of GBS to this end or to enable an expert to be appointed by GBS to investigate the respective Products on site. In addition, if the respective Products are intended for resale to third parties, the Buyer should immediately stop the sale and immediately inform buyers who have received similar Products (with the same catalogue number) and also give GBS the opportunity to do its utmost to investigate the respective Products in stock and Products already delivered to third parties or have them investigated.
10.7 If the Buyer does not or not within due time fulfil its obligations arising from the sixth paragraph of this Clause, its right to compensation will lapse and GBS will be entitled to recover its loss from the Buyer if and insofar as that loss is higher because the Buyer has not or not within due time fulfilled those obligations.
10.8 If the Buyer has not or not within due time fulfilled its obligations arising from the sixth paragraph of this Clause and a renewed incident occurs as meant in the sixth paragraph of this Clause with similar Products, the Buyer must indemnify GBS against any claims by third parties.
Article 11. Force Majeure
11.1 If after the formation of an Agreement between GBS and the Buyer circumstances occur or become known which GBS did not know about or did not ought to have known on entering into that Agreement as a result of which GBS cannot or not within due time fulfil its obligations towards the Buyer, GBS will not be in default and it will be entitled to suspend its obligations.
11.2 The circumstances meant in the first paragraph of this Clause also include any circumstance beyond the control of GBS which prevent the performance of the Agreement permanently or temporarily and which is not attributable to GBS. This also includes: (threat of) war, riots, work strikes, (natural) disasters, influences with regard to the weather, accidents, government measures, import and export prohibitions, transport problems, fire and disruptions in the business operations of GBS and/or its suppliers and manufacturers, interruptions in internet communications and/or on the computer network used by GBS and/or its suppliers and manufacturers, delays with regard to or the omission of deliveries of suppliers and manufacturers of the products and/or the withdrawal of permits of GBS and/or its suppliers and manufacturers.
11.3 If as a result of the circumstances referred to in this Clause the performance by GBS has become permanently impossible, GBS will be entitled to claim that the Agreement be changed such that its performance by GBS remains possible unless in the given circumstances this cannot reasonably be required of the Buyer and dissolution would be justified. In the latter case the respective Agreement will be dissolved without the Buyer being able to claim any compensation.
11.4 For as long as a force majeure situation exists as meant in this Clause, the delivery and other obligations of GBS will be suspended. If due to force majeure the period during which the fulfilment of the obligations by GBS is not possible for more than three (3) months, both Parties are entitled to dissolve the Agreement without there being any obligation to pay compensation in that case.
11.5 If on the occurrence of a force majeure situation, GBS has already partly performed its obligations as meant in this Clause or can only partly fulfil its obligations, it will be entitled to invoice separately the part already delivered or to be delivered and the Buyer will be obliged to pay this invoice as if it related to a separate Agreement.
Clause 12. Recall obligation
12.1 If GBS has to recall from the market the Products delivered or to be delivered on the basis of a legal obligation also including an obligation arising from European legislation and regulations, the Buyer will be obliged to render its full assistance in this connection. In that case the Agreement will be considered as dissolved. All associated costs and all losses arising from this will be at the expense of the Buyer unless they are at the expense and risk of GBS pursuant to Clause 8 and Clause 9 of these General Terms.
Clause 13. Intellectual property
13.1 All intellectual property rights with regard to the Products, for instance but not limited to the copyright, the right to the model and the trademark right are vested in GBS and/or its licensor (if the latter is the entitled party). The Buyer is not allowed to reproduce, publicise or imitate the Products in whole or in part without the prior Written consent of the entitled parties.
13.2 Without the prior Written consent of GBS the Buyer will not allege to have or register any rights or submit an application with regard to the Products and the intellectual property as meant in the first paragraph of this Clause whether or not this relates to intellectual property rights, domain names or alpha-numerical telephone numbers.
13.3 GBS is not liable to the Buyer and has therefore no obligation whatsoever to protect or compensate the Buyer against or for any possible (alleged) infringement of any intellectual property right of third parties as a result of the use of the Products and/or the name and logo by GBS.
13.4 The Buyer is not allowed to use the official product photographs without the prior Written consent of GBS. This also includes the press materials such as flyers, brochures, catalogues, pricelists, the website or other statements by GBS.
Clause 14. Exigibility, dissolution and suspension
14.1 In the event of dissolution or suspension of the Agreement by GBS as a result of a non-attributable failure of GBS, GBS will not be obliged to pay any compensation or give any warranty notwithstanding the other rights of GBS.
14.2 An Agreement between GBS and the Buyer can immediately be dissolved or suspended in whole or in part by GBS by means of a Written statement without any judicial intervention and without any notice of default being required, notwithstanding any other rights of GBS:
a. if after the Agreement has been formed GBS becomes aware of circumstances which give good reasons for GBS to fear that the Buyer will not fulfil its obligations;
b. in the event of the non-performance by the Buyer of its obligations to GBS and the Buyer still not fulfilling its obligations within fourteen (14) days after a Written notice of default from GBS;
c. if circumstances arise with regard to persons and/or materials of whom/which GBS makes use or is in the habit of making use in the performance of the Agreement which are of a nature such that the performance of the Agreement becomes impossible or so problematic and/or disproportionately expensive that the fulfilment of the Agreement can no longer reasonably be required.
d. if the Buyer does not, not within due time or not properly fulfil the obligations arising for it from any Agreement entered into with GBS;
e. in the event of an application for and a grant of bankruptcy or moratorium or seizure with regard to the Buyer or in the event of a close down or winding up or the full or partial transfer of its business operations ('change of control').
Clause 15. Transfer
15.1 GBS is entitled to transfer its rights and obligations with regard to the Buyer arising from the General Terms and/or the Agreement(s) to a third party.
Clause 16. Invalidity/annullability
16.1 The invalidity or annullability of a provision of the General Terms does not affect the validity of the other provisions. The invalid provision will be replaced by a valid provision taking into account and approaching as closely as possible the purport and purpose of the invalid or annullable provision.
Clause 17. Evidence
17.1 Subject to counter-evidence the accounts of GBS are considered as constituting evidence of the Agreement(s) entered into and the payments made by the Buyer and the deliveries made by GBS.
Clause 18. Applicable law and dispute settlement
18.1 All offers, quotations, the Agreement and other agreements and legal relationships between GBS and the Buyer to which these General Terms apply as well as any disputes arising from them are governed by Dutch law.
18.3 The applicability of the Vienna Sales Convention is explicitly excluded.
18.3 Any disputes between the parties in relation to offers, quotations, the Agreement and other agreements and legal relationships between GBS and the Buyer or their execution to which these General Terms apply, will be submitted to the competent court in 's-Hertogenbosch unless GBS chooses to bring the case before the court of the Buyer's domicile or another court with territorial jurisdiction pursuant to the law.