GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY DRAKE & FARRELL B.V.
ARTICLE 1. Definitions
For the purposes of these conditions:
A. Drake & Farrell: the private limited liability company Drake & Farrell B.V., and its affiliates;
b. affiliates: any parent, subsidiary and/or sister companies of Drake & Farrell, being (combinations of natural or) legal entities in which Drake & Farrell has a financial, organisational or economic interest of more than fifty percent and has the corresponding control or such (combinations of natural or) legal persons that have such financial, organisational or economic interest and control in Drake & Farrell;
c. client: the natural person or corporation who has given Drake & Farrell an assignment as under d.;
d. assignment: an assignment given to Drake & Farrell by the client whether or not through a (service) agreement concluded between the parties, to the manufacture, handling, delivery or packaging of goods or to the provision of services, whether related or not;
e. quotation: any offer, quotation, budget, calculation, or communication of a similar nature, whether or not indicated as a quotation;
f. in writing: in writing or by electronic means;
g. work: all work to be carried outby Drake & Farrell on behalf of the client that has been commissioned and which has been accepted by Drake & Farrell and all the work resulting from it for Drake & Farrell;
h. the conditions: these general terms and conditions of sale and delivery;
i. services agreement: an agreement concluded by Drake & Farrell and the client with regard to the work to be carried out by Drake & Farrell, of which these terms and conditions are part of;
j. delivery date: the delivery date defined in Article 7(4).
k. expedition: the transport of goods made available by the client and/or goods purchased by Drake & Farrell by means of the conclusion by Drake & Farrell on behalf of the client of one or more agreements of transport with a carrier. Expedition also includes any customs work carried out by Drake & Farrell for the benefit of the client and tax representation of the client.
ARTICLE 2. Applicability
1. The conditions apply to all offers, quotations, assignments, (service) agreements, legal and factual acts with regard to the work to be performed by Drake & Farrell.
2. General terms and conditions of the client only apply if it has been expressly agreed in writing that these apply to the agreement or the assignment between the parties to the exclusion of these terms and conditions.
ARTICLE 3. Quotes
1. Offers shall bind Drake & Farrell only if they are accepted within the period specified in the offer and, failing that, for a period of 4 weeks after the submission of the offer.
ARTICLE 4. Commands
1. Assignments given by the client are binding on him, regardless of the way in which they have been given. This also applies to assignments, agreements, arrangements or agreements, which have been given, concluded or made by agents, representatives or other intermediaries of the client.
2. Assignments bind Drake & Farrell only if and insofar as it has accepted them in writing by means of an order confirmation.
3. Changes to assignments must be agreed in writing. Costs that have now been incurred by Drake & Farrell for the execution of the original assignment are at the expense of the client.
4. Drake & Farrell performs the assignment in accordance with the provisions of the services agreement and the associated Standard Operations Procedure or (if it has not been concluded between the parties) the order confirmation and furthermore with due observance of the applicable laws and regulations.
5. Taking into account the above, Drake & Farrell determines the way in which the assignment is carried out and by which employees.
6. Drake & Farrell has the right to have work carried out by a third party(s) to be designated by Drake & Farrell.
7. The client bears the risk of misunderstandings with regard to the content and execution of the assignment if they find their cause in specifications or communications not received by Drake & Farrell, incorrectly, not timely or incompletely.
ARTICLE 5. Cancellation
1. If an assignment is cancelled by the client in the period between confirmation and start execution, Drake & Farrell is entitled to charge 15% of the amount to be invoiced above the costs already incurred, without prejudice to its otherwise existing rights to compensation.
2. If the client cancels an assignment accepted by Drake & Farrell while Drake & Farrell has already commenced the execution of the assignment, the client owes the full contract sum, unless there is an attributable shortcoming in performance by Drake & Farrell and this has been confirmed by the court judgment which has become final.
ARTICLE 6. Delivery
1. The material that Drake & Farrell must process in the context of the assignment must be delivered by the client or a third party engaged by him at the expense of the client, in a timely manner and under his responsibility and risk to Drake & Farrell or to the address indicated by Drake & Farrell.
2. Pallet costs are at the expense of the client.
ARTICLE 7. Delivery Times
1. If a period/date has been agreed between Drake & Farrell and the client within which the assignment must be carried out and the client fails to:
(a) pay a prepayment – if agreed – or
(b) make the necessary materials available in a timely, complete, in the desired form and in the desired manner then Drake & Farrell and the client will consult about a new term/date within which the assignment must becarried out.
2. Deadlines within which the work must be completed can only be considered as a deadline if this has been explicitly agreed between Drake & Farrell and the client.
3. The delivery date is one day after the day on which the assignment is reported by Drake & Farrell to the client.
4. The client is obliged to purchase the delivered goods or the packaged material as soon as they are delivered by Drake & Farrell on the delivery date.
ARTICLE 8. Supplies
1. All deliveries are made by FCA Drake & Farrell B.V. unless expressly agreed otherwise.
2. Additional costs related to the urgency of the assignment are at the expense of the client.
ARTICLE 9. Prices
1. Drake & Farrell is entitled to increase the agreed prices for the services it provides once annually with the NEA index. Drake & Farrell is also entitled to pass on cost-increasing factors imposed by third parties or the government to the client.
2. In addition to the agreed price, the expenses incurred by Drake & Farrell and the invoices and invoices of third parties engaged by Drake & Farrell will be charged to the client.
3. All prices do not include sales tax.
4. If Drake & Farrell finds before or during the execution of the assignment that the supplied material and /or software deviates from the specifications or quality specified in advance by the client, resulting cost increases are at the expense of the client.
ARTICLE 10. Payment
1. Unless expressly agreed otherwise, payment must be made within 30 days of the invoice date to a bank account indicated by Drake & Farrell. The invoice date is equal to the delivery date. The day of payment is the day of crediting the amount due to Drake & Farrell’s account.
2. If payment has not been received by Drake & Farrell within the agreed period, the client is in default by operation of law and the client owes an interest of 1% per month, calculated on the amount due as of the due date, without any reminder or notice of default being required, Drake & Farrell is entitled to charge extra judicial and judicial costs for collection of the claim to the client. The extrajudicial collection costs are due from the moment the client is in default and amount to 15% of the claim with a minimum of € 250,-.
3. If the execution of an assignment lasts longer than one month, the work may be charged per month.
4. The client is obliged to pay all amounts charged by Drake & Farrell without deduction or set-off. Complaints regarding the execution of the work are without prejudice to the payment obligation of the client and do not give him the right to suspend that obligation.
5. In the event of a joint assignment, the clients are jointly and severally liable for the payment of the invoice amount and the interest(s) and costs due, insofar as the work has been carried out on behalf of the joint clients. Drake & Farrell and/or affiliates are authorised to collect claims against the client(s) for each other, even if these arise from an agreement or accepted assignment concluded separately with a client between Drake & Farrell and/or (one of the) affiliates.
6. Drake & Farrell is entitled to demand (replacement and/or additional) security from the client for the fulfilment of its (further) payment obligations before (further) performing.
7. Until full payment has been received of what Drake & Farrell has to claim from the client, goods delivered by Drake & Farrell remain, regardless of whether they were already its property or have become its property by reference, mixing or formation of property, property of Drake & Farrell, with the exception of the goods delivered by the client, which remain the property of the client.
8. Drake & Farrell may exercise a right of retention on all matters, documents and monies that he has or will receive in connection with the client’s assignment, for all claims that Drake & Farrell has or will receive against the client and/or the owner of the goods, including in respect of claims that do not relate to those matters, documents and funds.
9. All goods, documents and monies that Drake & Farrell holds or will receive in connection with the assignment shall be subject to a pledge for all claims that Drake & Farrell has or will receive against the client and/or the owner of the goods.
10. Drake & Farrell may also exercise the rights mentioned in this article for what is still owed to it by the client in connection with previous assignments, activities or deliveries.
11. If Drake & Farrell is involved in legal proceedings by a client or in connection with an agreement concluded with the client, all costs of Drake & Farrell associated with these proceedings are at the expense of the client and must pay those costs on the first specification of Drake & Farrell without the possibility of discount or set-off, if and insofar as Drake & Farrell is vindicated in such legal proceedings, at least a cost assessment against the client or the other party follows in such proceedings.
12. Drake & Farrell is always entitled to set off its amounts charged by the client or any other claim of the client against it, regardless of what it is based on, against what it may or may not be due on from the client and is, where applicable, entitled to suspend the fulfilment of its possible obligations towards the client, for whatever reason, as long as it still has something to claim from the client.
13. Payments made by the client always extend to the payment of all interest and costs due and then to due invoices that have been outstanding the longest, even if the client states that the payment relates to a later invoice. This is also the case with any credit notes. Receipt by the client of a credit note should be considered as an appeal to set-off as much as possible.
ARTICLE 11. Liability
1. If one of the parties, other than due to force majeure, fails to fulfil its obligations under the assignment, the other party may, by way of default, unless fulfilment of the relevant obligations is already permanently impossible, in which case the negligent party is immediately in default. The notice of default will be made in writing, whereby the negligent party will be granted a reasonable period of time to still fulfil its obligations. If performance is not fulfilled within this period, the negligent party is in default.
2. Drake & Farrell is solely liable to the client for direct damage that is the direct result of a (related series of) attributable shortcoming(s) in the fulfilment of its obligations under the assignment. This liability is limited to the amount paid out in the relevant case under the company liability insurance(s) by Drake & Farrell.
3. Damage and liability in connection with or arising from expedition work are subject to the provisions of the Dutch Expedition Conditions as drawn up by Fenex and filed at the Registry of the District Courts in Rotterdam and Amsterdam on 1 May 2018 or the follow-up thereof. If these do not provide a conclusive conclusion, these conditions apply.
4. Drake & Farrell is never liable for indirect damage, consequential damage, lost profits, missed savings, reduced goodwill, damage due to business stagnation, damage as a result of claims of customers of the client, damage related to the use of goods, information, materials, drawings, models, software, software and suppliers provided or prescribed by or on behalf of the client.
5. The Client indemnifies Drake & Farrell against all claims of third parties, including the costs of legal assistance, which are in any way related to or arising from the work performed by Drake & Farrell.
6. The limitations of liability contained in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of Drake & Farrell.
7. If Drake & Farrell is sued by the client outside the agreement in respect of damage resulting from the execution of the assignment, Drake & Farrell is not liable any further than it would be under the service agreement or assignment.
8. If the client requests Drake & Farrell to apply or produce a code on the packaging he ordered, Drake & Farrell is never liable for the legibility of this code.
9. Both parties are obliged to take damage mitigation measures.
10. In the event of the execution of work by Drake & Farrell to drawings, models, samples or other indications in the broadest sense of the client’s word, the client guarantees that no trademark, patent, utility or commercial model or any other right of third parties will be affected by this work. If a third party objects to the activities of Drake & Farrell on the basis of any alleged right, the client indemnifies Drake & Farrell against all claims of any kind and Drake & Farrell is entitled to immediately cease its work and to demand compensation for costs incurred from the client, without Drake & Farrell being obliged to pay compensation on its part.
ARTICLE 12. Damage/ Insurance
1. Transport and storage of the materials and goods supplied by the client and to be processed by Drake & Farrell remain the property of the client and at the expense and risk of the client.
2. The material to be processed can be insured after written indication of the value of the goods on request against theft, fraud, loss, loss and/or damage by Drake & Farrell at the expense of the client. In this case, any liability of Drake & Farrell only exists up to the amount to which the insurance is entitled, where applicable.
3. If Drake & Farrell transfers goods received from its suppliers or makes use of the services of third parties in the execution of its assignment, only the liability and any warranty provisions of the aforementioned third parties apply. Drake & Farrell will inform the client of the applicable provisions at his request. Drake & Farrell never has a more far-reaching liability towards the client than it can rely on vis-a-vis against the aforementioned third parties.
ARTICLE 13. Quantity / Quality
1. Complaints on defects in quantities or regarding the quality of the work performed and/or delivered materials must be registered immediately upon delivery of the materials to or after receipt by the client on the shipping advice, the consignment note, the receipt or any other type of acknowledgement of receipt and additionally reported in writing to Drake & Farrell in the absence of which the client is deemed to have accepted the (delivered) delivered in quantity and quality.
2. Defects in part of the delivery or partial defects in respect of a lot do not entitle the entire party to refuse.
3. Complaints or disputes of any kind do not give the client the right to postpone payment.
4. Return may only take place after written approval from Drake & Farrell. If, after inspection, a complaint proves to be unfounded, the return costs and the re-delivery costs will be borne by the client. If the complaint is found to be well-founded, the return costs will be borne by Drake & Farrell.
5. The quantities indicated by or on behalf of the client on the shipping advice are accepted by Drake & Farrell as correct.
ARTICLE 14. Dissolution and Termination
1. Each of the parties shall be entrusted with the power to terminate the contract out of court because of a serious attributable shortcoming in the performance of the contract only if the other party, always in all cases where fulfilment is still possible after the most detailed written notice of default whereby a reasonable period is set for purification of the shortcoming, is imputably failing to fulfil essential obligations under the assignment. Payment obligations of the client always count as essential obligations from the assignment.
2. Either party may terminate the contract in writing without notice of default with immediate effect in whole or in part if the other party is granted a suspension of payment, whether provisionally or not, if bankruptcy is requested in respect of the other party, the other party offers an agreement outside bankruptcy, a significant part of the other party’s assets has been seized or if the other party’s company is liquidated or terminated other than for reconstruction purposes. or merger of enterprises. Due to the termination referred to in this paragraph, neither party is obliged to pay any refund of funds already received or to pay compensation.
3. If the client terminates the assignment in the interim in accordance with the applicable provisions, Drake & Farrell is entitled to compensation for the investments and/or costs incurred by Drake & Farrell for the performance of the work for hired personnel and to compensation due to the loss of occupancy resulting from the termination, unless the client terminates the assignment due to a serious attributable shortcoming in the performance of the assignment by Drake & Farrell.
4. By terminating the assignment, the existing claims become immediately due and payable and the client is obliged to pay the invoices for work performed up to that time. The provisional results of the work carried out so far will be made available to the client subject to payment of the invoices.
5. Drake & Farrell is entitled to terminate the assignment in the interim on such business reasons that Drake & Farrell cannot reasonably be required to continue the assignment. A written notice period of 3 months applies. The aforementioned economic feasibility will be verified by an independent expert appointed by the Drake & Farrell. The cost of engaging this expert will be borne by Drake & Farrell. Drake & Farrell will fully cooperate in the transition to another service provider. Costs to be incurred by Drake & Farrell in the field of knowledge transfer for this transition will not be charged to the client.
6. Obligations which by their nature are intended to continue even after termination of the assignment shall remain after termination of the contract. These obligations include: indemnification for
infringement of intellectual rights, liability of the parties, confidentiality, dispute resolution and applicable law.
ARTICLE 15. Force Majeure
1. The parties are not obliged to fulfil any obligation, if fulfilment is not possible due to force majeure.
2. Force majeure is understood to mean a circumstance that is not due to fault, and is not at the expense or risk of the non-fulfilling party under the law, legal act or generally accepted beliefs. This will include (if and insofar as these circumstances make compliance impossible or unreasonably difficult), but not limited to: war, danger of war, civil war, riot, molestation, fire, epidemics, water damage, flooding, strike, business occupation, exclusion, entry and execution barriers, government measures, defects in machinery, failures in the supply of energy, all both in the company of Drake & Farrell and with third parties, of whom Drake & Farrell has the necessary materials , must source all or part of services or raw materials, and furthermore all external causes, foreseen or not foreseen, over which Drake & Farrell cannot influence or (the consequences) have been able to avoid.
3. The parties may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two 2 months, each of the parties is entitled to terminate the assignment, without obligation to compensate the other party for damage.
4. Insofar as Drake & Farrell has already partially fulfilled or will be able to fulfil its obligations under the notice at the time of the occurrence of force majeure, and the part fulfilled or to be fulfilled has independent value, Drake & Farrell is entitled to invoice the part already fulfilled or to be fulfilled separately. The client is obliged to pay these invoices.
ARTICLE 16. Dual Use and Related Regulations
1. Where an export licence is required for the supply of one or more products or services, including products listed in the EU Dual Use Regulation 428/2009 or a successor thereto, Drake & Farrell may be held to its obligations under the contract only if the required authorisation is actually and definitively issued for those products or services.
2. If Drake & Farrell applies for or submits the necessary permit, the client is obliged to cooperate fully and provide all information necessary for applying for the permit referred to in the first paragraph of this article.
3. Drake & Farrell reserves the right to terminate the assignment at any time if the assignment relates to products or services within the meaning of paragraph 1 of this article and it is obvious or likely that the required license will not be obtained. In that case, Drake & Farrell is not obliged to compensate any damage of the client or third parties.
4. The client is not permitted to use the data by Drake and Farrell B.V. products or services provided to the client in violation of Regulation 428/2009 EU or other applicable regulations. All consequences of (a violation of) the regulation or other applicable regulations are at the expense and risk of the client and
do not relieve the client of any obligation. Client indemnifies Drake & Farrell against any fines imposed by Drake & Farrell in this regard by the enforcement authorities.
ARTICLE 17. Scrap
1. If no instructions have been given by the client in this respect, Drake & Farrell has the right to return remnants of materials two weeks after the delivery date in the manner it desired or to destroy them in consultation with the client.
2. The transport costs of returning or destroying remnants of materials, including packaging, shall be borne by the client.
3. If the client does not return pallets and other packaging made available by Drake & Farrell on his own initiative or after a written request addressed to him for this purpose, the costs associated with the recovery thereof shall also be borne by the client.
ARTICLE 18. Storage
1. For items or materials stored at Drake & Farrell for the purpose of the work for the client, the client will be charged an amount for storage, excluding the day between delivery to and delivery of these goods or materials by Drake & Farrell.
2. During storage, the goods or materials are not insured by Drake & Farrell and any damage, loss, loss, other types of damage, for whatever reason, will never be borne by Drake & Farrell unless there is intent or deliberate recklessness on the part of Drake & Farrell.
ARTICLE 19. Intellectual Property
1. The execution of the assignment by Drake & Farrell does not involve the transfer of intellectual property rights that rest with Drake & Farrell. All intellectual property rights arising during, or arising from, the performance of the assignment belong to Drake & Farrell.
2. The copyright as well as all other intellectual or industrial property rights on goods as supplied or made available to the client by Drake & Farrell, regardless of whether Drake & Farrell acted on assignment or on assignment, or according to the client’s specifications, exclusively from Drake & Farrell or its licensors and the client obtains only the rights of use expressly granted under these terms and conditions, unless otherwise agreed in writing.
3. Drake & Farrell grants the client only the non-exclusive right to use the aforementioned rights. The client may only use these rights for the benefit of his own company and for the purpose for which they were granted to him by Drake & Farrell.
4. The right of use is not transferable to third parties without the written permission of Drake & Farrell. The client is not permitted to sell, rent, dispose of or transfer the rights in security or to make them available to third parties in any way.
5. The Client is expressly prohibited from multiplying, revealing or exploiting the products containing Drake & Farrell’s intellectual property rights, or products subject to intellectual property rights in relation to the use of which Drake & Farrell has acquired rights of use – including in this regard in any case, but not exclusively: computer programs, system designs, practices, advice, templates, macros and other mental products.
6. The client is not permitted to make the products mentioned in the fifth paragraph available to third parties without the prior written permission of Drake & Farrell, other than to obtain an expert opinion on the execution of the work by Drake & Farrell. In that case, the client will impose his obligations under this article on the third parties engaged by him.
ARTICLE 20. Expiration Periods
Insofar as these conditions do not provide otherwise or the law requires mandatory, rights of claim and other powers of the client for whatever reason against Drake & Farrell in connection with the performance of work by Drake & Farrell expire, at least after one year after the moment when the client became aware or could reasonably be aware of the existence of these rights and powers.
ARTICLE 21. Electronic Communication
1. During the execution of the assignment, Drake & Farrell and the client can communicate with each other by electronic means.
2. Drake & Farrell is not liable to the client for damage resulting from the use of electronic means of communication, including – but not limited to – damage resulting from non-delivery or delay in the delivery of electronic communications, interception or manipulation of electronic communications by third parties or by software/equipment used for the transmission, reception or processing of electronic communications, transmission of viruses and the failure or malfunction of the telecommunications network or other means necessary for electronic communication, except to the extent that the damage is the result of intent or deliberate recklessness.
3. The data extracts from the sender’s computer systems provide compelling evidence of (the content of) the electronic communications sent by the sender up to the moment that proof to the contrary has been provided by the recipient.
ARTICLE 22. Processing Personal Data
1. If Drake & Farrell processes personal data for the benefit of the client in connection with the assignment, it processes it as a processor. The Client remains the controller with regard to all personal data processed on the basis of the assignment.
2. Drake & Farrell and the client are obliged to arrange the intended processing(s) of personal data and to record them in a processing agreement (Processor Agreement within the meaning of Art. 28 GDPR). The Drake & Farrell processor agreement will be used as standard.
ARTICLE 23. Confidentiality
1. Both parties will observe strict confidentiality with regard to everything that has become known to them from the other party when entering into and executing the assignment, including information about each other’s organization, working method, business processes, services, software and intellectual property rights and rates, subject to obligations imposed by law or the court. In this context, a judgment of the court shall be treated as a judgment of a body which, as a result of Article 24, has jurisdiction to settle the dispute if the
parties have agreed on another form of dispute resolution. Subject to the prior written consent of the other party, each party will not make information and data carriers of the other party available to third parties, unless this is necessary for the provision of the agreed services.
2. By way of derogation from the foregoing paragraph, Drake & Farrell is entitled to report in publications or advertisements of the assignment and, after permission of the client, to use the name of the client as a reference.
ARTICLE 24. Applicable Law and Dispute Settlement
1. Dutch law applies to every assignment with the exception of the Vienna Sales Convention.
2. Any disputes between the parties will be resolved as much as possible in good consultation. If the consultation does not lead to a solution, the dispute will be submitted to the competent court in Rotterdam, unless the parties will still agree on another form of dispute resolution.