Purchase Terms and Conditions
Article 1 — Definitions
1.1 These General Terms and Conditions apply to all offers to and agreements with B. Futurist Holding B.V. and its legal successors, as well as to associated companies or with said successors (together as well as individually hereinafter also called: the Company), relating to the delivery of goods to the Company by the supplying party or the other party concerned (hereinafter also called: the Supplier).
1.2 The applicability of any general terms and conditions used or in use by the Supplier is hereby explicitly rejected.
1.3 Any stipulations deviating from these General Terms and Conditions shall only apply in the event that and insofar as they have been accepted by the Company in writing.
Article 2 — Agreement
2.1 An agreement, in this article including any changes and/or additions thereto, shall not be binding unless agreed upon in writing.
2.2 An agreement is concluded in writing (upon the Company’s discretion) at the moment when the contract is duly signed by the board of directors of the Company and by the Supplier, or on the date of dispatch (through any written communication means, including, but not limited to, post, telefax, email, WhatsApp, WeCom, and WeChat) by the Company, containing the written order confirmation duly signed by the Board of Directors of the Company. Promises made by and arrangements with subordinates of the Company shall not bind the Company unless these have been confirmed in writing by the Board of Directors of the Company.
2.3 The contract represents the contents of the agreement concluded between the parties completely and correctly. The purchase order confirmation of the Company shall be considered to represent the contents of the agreement correctly unless the Supplier rejects its contents forthwith in writing and is well-motivated. In such an event, the Company shall no longer be bound by the purchase order confirmation either.
2.4 The Supplier must procure any permissions, permits, and/or licences needed for the execution of the agreement, in time and at his expense, and he must see to it that the conditions made therein or thereby are observed. The Supplier shall be solely liable for any failure to acquire the permissions, permits, and/or licences, or to acquire them in time, or for the non-observance of the conditions made therein and thereby, whereas the Supplier shall indemnify the Company for any and all damage and costs arising from such failure, including but not limited to all and any reasonable incurred legal expenses by the Company.
2.5 Unilateral cancellation from the side of the Supplier shall be null and void, unless and only insofar as the Company agrees to such cancellation in writing.
Article 3 — Confidentiality
3.1 The Supplier shall observe confidentiality in the broadest sense of the word, regarding any and all business information relating to the Company or any of the products procured for and/or purchased by the Company, which has been brought or come to his knowledge by the Company and/or within the context of the offer and/or agreement, and shall not disclose the same to any third party in any way, unless prior written consent has been granted by the Board of Directors of the Company to disclose any such information.
3.2 In the event the Supplier breaches its obligations under this article, it forfeits an immediately payable fine of €10.000 per violation, to be increased by €1.000 for each day or part thereof that the violation continues. This does not affect the Supplier’s obligation to compensate the Company for any damages in addition to the stipulated fine.
Article 4 — Prohibition to Make Offers and Such to the Company’s Customer
The Supplier shall refrain completely from stating prices and/or making any offers, either directly or by third-party intervention, to the client of the Company in connection with the goods the Company is negotiating with the Supplier about or has concluded an agreement on.
Article 5 — Industrial and Intellectual Property Rights and Other Legal Requirements
5.1 The Supplier guarantees that any use of the delivered goods does not infringe any and all word and figurative trademark rights, copyrights, design rights, or any other industrial or intellectual property rights of third parties (hereinafter also called: IP right holders) or any other rights of third parties.
5.2 The Supplier guarantees that the delivered goods are not counterfeit goods, pirated goods, nor can otherwise be considered fake goods, and/or stolen goods, implying that the goods are produced by, under licence of, or otherwise produced with sufficient permission of the proprietor(s) of all intellectual property rights used in or on the goods, including the packaging thereof.
5.3 In the event of procurement by the Company of goods to be sold in the European Economic Area (EEA), The Supplier guarantees that the delivered goods have been brought to the market by the IP right holder itself, or with its permission, on the T2 or e-AD status. This warranty also applies in the event that the Supplier did not buy the goods from the IP right holder itself. The Supplier guarantees that the delivered goods meet all requirements including - but not limited to - labelling requirements and are fit and suitable for sale and subsequent trade in the EEA. Upon first request, the Supplier shall provide the Company with any and all information relating to the suppliers and any previous holders of the goods sold to the Company accompanied by (unredacted) underlying documents including - but not limited to - full contact details of its suppliers, other relevant details regarding the goods and the previous supply chain and origin of the goods including copies of all relevant underlying document of the Supplier and its own suppliers including any logistics service providers instructed by the Supplier or its suppliers, invoices and correspondence.
5.4 The Supplier indemnifies and holds harmless the Company and its client(s) unconditionally and wholly against:
- Any and all claims related to circumstances of which the Supplier guaranteed the presence or absence in this or any other article of these General Terms and Conditions of Purchase;
- Any and all claims related to an (alleged) infringement of any intellectual property rights of third parties related to the supply of goods to the Company by the Supplier will compensate and hold harmless the Company and/or its client(s) for any loss as well as the costs, including - but not limited to - all legal costs, arising out or in connection with any such claims. Any costs associated with the defence of the Company against such claims will be invoiced monthly as an estimate of anticipated actual costs and such estimates will be prepaid by the Supplier to the Company. The Company will provide the actual costs to the Supplier and a balance of costs and estimates prepaid on a monthly basis.
5.5 The Company has title to all the industrial and intellectual property rights that arise or result from the implementation of the agreement by the Supplier, its personnel, or third parties who were involved in the implementation of the agreement by the Supplier.
5.6 The Supplier indemnifies the Company against all claims by third parties in respect of industrial and intellectual property rights relating to the delivered goods to which the Company has a title and will compensate the Company for any loss as well as the costs ensuing from such claims.
Article 6 — Prices
All prices shall be fixed and inclusive of the Value Added Tax (“B.T.W.” or “VAT”), import and export duties, excise duties, and all other levies and taxes in connection with or in relation to the goods or the delivery. The prices shall furthermore be based on the Terms and Conditions (of delivery) mentioned in the following articles. There shall be no settlement and/or price increase in the event of an increase in wages, prices of materials, and the like.
Article 7 — Delivery, Terms, and Conditions of Delivery
7.1 Unless explicitly agreed upon otherwise, the delivery shall be made “Delivered Duty Paid” (DDP) at the place indicated by the Company. The interpretation of the Terms and Conditions of delivery shall be determined by the ICC Incoterms (the most recently issued edition at the time of the conclusion of the agreement).
7.2 The Supplier shall deliver the goods on the date mentioned in the agreement, or not later than the last day of the term mentioned therein, and failing an agreed date or term, within 30 days. Said date or term shall apply as a strict and final delivery date or term. A term of delivery mentioned in the agreement shall apply as of the date of the conclusion of the agreement.
7.3 The Supplier shall be obliged to inform the Company of the exact time of delivery and about any threatening exceeding of the time of delivery, providing written notice at least five (5) working days before the scheduled delivery date. Should the delivery be expected to arrive later than the agreed-upon delivery date, the Company shall have the right to cancel the agreement without incurring any further obligations or liabilities and shall be entitled to the repayment of the money the Company has made, whether in parts or in its entirety.
7.4 At the request of the Company, the Supplier shall be obliged to deliver the goods at a later date than the agreed one and the Supplier shall do his utmost to deliver the goods at an earlier date than the agreed date, in the event that the Company considers this desirable, without being entitled to any compensation of damage and costs because of this.
7.5 The Supplier shall only be entitled to make partial deliveries after obtaining prior written consent from the Company. Such partial deliveries shall be the sole responsibility of the Supplier and shall not impose any additional obligations or liabilities on the Company. In the event that the Supplier makes partial deliveries without prior agreement with the Company, the Company reserves the right to cancel the order and shall not be obligated to pay for the remaining undelivered goods. Any remaining delivery that is subsequently made shall be treated as a new order, requiring a new agreement.
Article 8 — Loading, Transportation and Unloading
8.1 The interpretation of the Terms and Conditions of loading, transportation, and unloading shall be determined by the ICC Incoterms (the most recently issued edition at the time of the conclusion of the agreement). The loading, transportation, and unloading of goods shall be at the expense and risk of the Supplier in accordance with the Terms and Conditions of delivery mentioned in the previous article.
8.2 The Supplier can on no account claim any compensation of damage and costs as a result of any possible delay arising at the unloading of delivered goods.
8.3 The Supplier is required to provide a delivery note upon the unloading of the goods. This delivery note must include, but is not limited to, all related documents such as the transport document (CMR, CIM or ISV, AirWay Bill (“AWB”), Bill of Lading (“B/L”), and the dangerous goods declaration form DGD or e-DGD). The note should be promptly presented for approval by an authorised representative of the Company. The signing of the delivery note shall solely be a confirmation of the receipt of the delivered goods and does not imply any approval of (the quality or the quantity) of the delivered goods and does not discharge the Supplier of any guarantee and/or liability. Nor can the signing of the delivery note result in a change of the agreement in any other way. Failure to provide the complete necessary document gives the Company the right to deny shipment at the warehouse or to refuse the pickup of the goods, with any extra costs being on the suppliers.
8.4 In any and all cases and notwithstanding the agreed Terms and Conditions of delivery, the Supplier shall be obliged to provide the documentation which is needed to transport the goods to the place of destination.
Article 9 — Packaging
9.1 The Supplier shall pack the goods according to the packing requirement provided by the Company before the payment of the balance. The Supplier is required to exercise due diligence in packing the goods. He shall be held liable for damages and costs caused by insufficient packaging and/or damage to and/or destruction of said packaging.
9.2 The Company shall not be obliged to pay the costs of packaging unless explicitly agreed otherwise.
9.3 The Supplier shall take back any possible packaging of the goods at demand by the Company and shall collect said packaging at his expense at the Company’s premises, at the same time refunding any costs charged for said packaging by the Supplier to the Company.
Article 10 — Risk and transfer of property
The Supplier shall guarantee that the delivered goods are:
- Genuine and originating from the manufacturer and/or IP right holder stated on the packaging and labels (therefore not produced under licence either), as well as in accordance with the quality intended by said manufacturer and/or IP right holder and without any faults;
- Regarding shelf life as well as quality - and taking into consideration usual terms - suitable for sale to resellers and (finally) for sale to and use by consumers, if not agreed upon otherwise by the Company, that the general rule of at least two-thirds (⅔) of the remaining shelf life at the delivery.
- Provided with the original or with regard to design and colouring of most recent packaging and labelling of the manufacturer and/or IP right holder;
- In accordance with the demands made in the agreement, the documents belonging to the agreement and/or made available, as well as with the norms and specifications set by the Company and samples approved by it;
- In accordance with Dutch, European, and other international rules and regulations, including the requirement of the presence of the original batch or code numbers (identical on the packaging and on the (labels on) the goods) to comply with tracking and traceability regulations.
Article 11 — Inspection
11.1 The Company or any third party designated by it shall at all times have the right to inspect or test the goods, wherever these may be. The results of the inspection or test or the omission thereof shall not discharge the Supplier of any guarantee and/or liability.
11.2 The Supplier shall provide all information and facilities needed for an inspection or test, including the necessary help regarding employees and materials.
11.3 The personnel costs of the Company or the designated third party concerned, made in connection with an inspection or a test, shall be payable by the Company. Any other costs shall be at the Supplier’s expense.
11.4 The Company shall inform the Supplier forthwith of any rejection of goods. In that case, the Supplier shall be bound to repair or to replace the rejected goods at his expense within a time limit to be stipulated by the Company, and in such a way that said goods do fulfil the approval requirements, without prejudice to any other rights of the Company. In case of rejection, goods already delivered must be taken back at the Company’s request and at the expense of the Supplier. Rejection shall also entitle the Company to suspend the payment of the agreed price or instalment.
11.5 The Supplier shall give the Company the right to use or to put into use the delivered goods even before inspection or test has taken place.
Article 12 — Property and Risk
12.1 The Supplier shall bear the risk for the goods until the moment in time at which said goods have been delivered and approved by the Company in accordance with the previous articles.
12.2 In the event that the Company shall make any payment to the Supplier before the delivery of the goods, the goods said payment refers to or is attributable to, shall be the Company’s property as of the time of payment.
12.3 In the event that the Company will be or will become the owner of (a part of) the goods already before the delivery and approval, then the Supplier shall be obliged to identify these goods on behalf of the Company and to take proper care of said identified goods, as well as to insure them and keep them insured for the benefit of those concerned.
Article 13 — Payment and Settlement
13.1 Unless another term has been explicitly agreed upon and subject to any (suspension) rights the Company is entitled to, payment shall take place within sixty (60) days after the last of the following moments in time:
- The time of delivery of the goods;
- The time of approval of the goods by the Company;
- The time of receipt of an invoice by the Company, fulfilling the requirements stated in the following article.
13.2 Payment of the delivered goods shall not discharge the Supplier of any guarantee and/or liability.
13.3 In the event that it has been agreed that the Company shall make any payments in advance, the Company shall have the right at all times, before making said payments, to require from the Supplier the provision of security which is sufficient at the Company’s discretion.
13.4 In the event that the Company has a well-founded fear that the Supplier will not fulfil his obligations, the Company shall be entitled to suspend the fulfilment of the Company’s own obligations.
13.5 The Company shall be authorised to settle any amounts payable to the Supplier or to companies associated with the Supplier with any claims the Company (or any party associated with the Company) has on the Supplier or on any companies associated with the Supplier, irrespective of the fact whether the amounts concerned are due or not.
13.6 The Supplier shall not transfer or encumber any of its rights deriving from the agreement. In the event that the Supplier claims to have a right to compensation from the Company, they shall have no right to set-off, suspension, or postponement. In such an event, the Supplier shall not attach any of the Company’s assets.
Article 14 — Invoicing
14.1 The invoices to be sent to the Company by the Supplier shall fulfil the requirements set by or by virtue of the Wet op de Omzetbelasting (Turnover Tax Act).
14.2 The invoices of the Supplier must be accompanied by notes signed for approval by a person authorised by the Company.
14.3 Invoices not fulfilling the requirements set out in the previous paragraphs of this article shall not be dealt with nor paid.
Article 15 — Return Shipments
15.1 The Company shall be entitled to return the goods bought from the Supplier, thereby crediting and requiring a refund of the price originally charged by the Supplier to the Company for said goods, if as a result of actions or failure to act by the Supplier, the situation in the market and/or the marketability of these acquired goods is essentially different from what it was at the time of the formation of the agreement.
15.2 Furthermore the Company shall be entitled to return the goods bought from the Supplier within twelve (12) months after the delivery without stating the reasons, in the event the goods deviate regarding packaging or labelling from what is usual for the goods concerned (for instance so-called action lots), thereby crediting and requiring refund of the price originally charged by the Supplier to the Company for said goods.
Article 16 — Guarantee
16.1 The Supplier shall repair forthwith any and all defects, shown by the goods after the delivery in consultation with the Company, and in the event that in the Company’s discretion repairs are not possible, replace said goods, without prejudice to the Supplier’s liability and any further rights of the Company.
16.2 Any and all costs of repairing the defect or replacing the goods shall be payable by the Supplier.
16.3 In the event that the Supplier does not repair the defect forthwith and/or sufficiently, or if the reparation of the defect cannot be postponed, the Company shall have the right to carry out the necessary actions or have these carried out at the Supplier’s expense. In the event that the Company exercises this right, the Company shall inform the Supplier in writing.
16.4 Any obligations under the guarantee shall apply unimpaired after the reparation or replacement of the goods.
16.5 The Supplier shall hold harmless and indemnify the Company (including its employees) against any and all claims by third parties with regard to defects to the goods, under whatever name.
16.6 A report of an independent expert concerning the relevant defects shall be conclusive evidence between parties in the event of a claim by the Company based on the guarantee referred to hereby. Said report need not include any information on the identity of the clients of the Company, nor on the place where the goods are. Moreover, the Company shall not be bound to inform the Supplier of such data
Article 17 — Liability
17.1 The Supplier shall be liable for all any damage and costs, inclusive of business and other indirect damage (whereby loss of profit), arising from defects to the delivered goods or other shortcomings, whether attributable or not, of the Supplier and/or caused by natural person or legal entities working for the Supplier of by any employed, directly or indirectly, by (one of) said natural persons or legal entities.
17.2 The Supplier shall hold harmless and indemnify the Company against any and all claims by third parties he is liable for, of whatever name.
17.3 The Supplier shall insure his liability as described in this article to a sufficient amount and shall allow the Company inspection of the documents referring to said insurance, among which the policy and premium receipts.
17.4 The provisions of article 16 paragraph 6 (independent expert report) also apply.
Article 18 — Complete or Partial Dissolution
18.1 In the cases provided for by the Law, as well as in the event that the Supplier does not, not in time or not sufficiently fulfil one or more obligations arising for him from the agreement, or in the event that there is serious doubt as to the Supplier being able to fulfil his contractual obligation towards the Company, as well as in the event of bankruptcy, suspension of payments, appointment of a pre-bankruptcy receiver (pre-pack), complete or partial stoppage of work, liquidation, transfer or encumbrance of the Supplier’s business, including the transfer or pledging of an important part of his debts receivable and furthermore in the event that any goods of the Supplier are attached before judgement or in execution, the Company shall have the right, without notice of default or judicial intervention, to partially or wholly dissolve the agreement by means of a written (including by telefax or e-mail) notice sent to the Supplier, and all this without the Company being liable to any compensation and without prejudice to the Company’s further rights.
18.2 In the event that goods have already been delivered in connection with the execution of the agreement, the Company shall have the right to keep these goods in case of dissolution, subject to the payment of the part of the price referring to said goods, or to return these goods to the Supplier at his risk and expense and to reclaim the payments already made for these goods, all this at the Company’s discretion and without prejudice to the Company’s further rights.
18.3 The claims which the Company may have or get as a result of the dissolution of the agreement, its possible claim for compensation of damage and costs inclusive, shall be immediately and fully payable.
Article 19 — Subcontracting, Transfer
19.1 Without the explicit prior written consent of the Company, the Supplier shall not subcontract the agreement or any part thereof to third parties nor transfer his obligations arising from the agreement or a part thereof to third parties, nor use any other employees than his own staff (for instance employees made available (hired out) for the execution of the agreement.
19.2 The Company shall have the right to attach conditions to any consent to be given by the COmpany. Consent given by the Company shall not release the Supplier from any obligation arising from the agreement concluded between the parties.
19.3 The Supplier shall compensate any and all damage and costs caused by the non-observance of the provisions of the previous paragraph of this article to the Company and shall be held harmless and indemnify the Company against any claims by third parties in this respect.
Article 20 — General
20.1 In the event that one or more stipulations of the agreement, including stipulations of these General Terms and Conditions, are null and void or become legally invalid, the remaining provisions of the agreement shall remain in force. Parties shall consult on the stipulations which are null and void or have become legally invalid, in order to make an alternative arrangement.
20.2 In the event that one or more stipulations of the agreement, including the stipulations of these General Terms and Conditions, be in conflict with mandatory provisions, stipulated by or to be stipulated by a thereto competent authority, these latter provisions shall be considered to have replaced the relevant stipulations of the agreement.
20.3 Stipulations, that due to their nature, are intended to remain applicable after the end of an agreement entered into by the Company and Supplier shall remain applicable upon termination of the agreement.
Article 21 — Disputes and Applicable Law
21.1 With regard to any and all disputes in connection with the agreement, or with regard to further agreements arising or resulting from or in connection with said agreement, the court in Rotterdam shall have exclusive jurisdiction in the first instance unless the Company explicitly opts for the competence of the court of domicile or in the place of establishment of the Customer.
21.2 The agreement, as well as any and all further agreements arising or resulting from or in connection with said agreement, shall be governed by the laws of the Netherlands.