GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT OF OOLABOO B.V.
Article 1 – DEFINITIONS
Oolaboo: Oolaboo B.V. and/or all businesses affiliated with this company in any way and all other companies that refer to these terms and conditions or make use of them.
Purchaser: each person or legal entity that has concluded an agreement with Oolaboo or wishes to conclude an agreement with Oolaboo, including the representative(s), authorised party/parties and/or legal successor(s) of that person or legal entity.
Order: an order of the Purchaser placed in any form whatsoever and under any name whatsoever.
Agreement: the agreement between the Purchaser and Oolaboo.
In writing: by letter, fax and/or email.
Goods: the products ordered by the Purchaser.
Article 2 – APPLICABILITY OF TERMS AND CONDITIONS
1. All agreements, offers, order confirmations and deliveries are exclusively governed by the general terms and conditions of Oolaboo.
2. The applicability of any terms and conditions of the Purchaser is expressly excluded.
3. Derogations from these general terms and conditions are only binding if such has been agreed in writing and only apply for the agreement in question.
4. In case of nullity and/or nullification of a provision in these terms and conditions, the other provisions of the general terms and conditions will remain in effect.
5. If Oolaboo does not always require strict performance of these terms and conditions by the Purchaser for reasons of its own, Oolaboo does not lose the right to require this as and when necessary.
Article 3 – FORMATION OF THE AGREEMENT
1. All offers and mentioned sale prices of Oolaboo are without obligation and therefore do not bind Oolaboo, unless Oolaboo provides a written declaration showing the contrary.
2. An agreement is only formed at the moment Oolaboo confirms the Purchaser's Order in writing or at the moment Oolaboo performs the Agreement.
3. Oolaboo is entitled to refuse an Order by the Purchaser. The Purchaser will be informed by Oolaboo of refusal of an Order as soon as possible, but at least within 4 working days after receipt of the Order.
4. Offers or tenders do not automatically apply to future agreements.
Article 4 – PRICES
1. All prices mentioned by Oolaboo are exclusive of VAT, unless expressly agreed otherwise in writing.
2. The prices mentioned by Oolaboo are based on the cost factors applicable at the time of formation of the Agreement (including purchase prices, exchange rates, wages costs, transport costs and packaging costs). If these costs have increased after the offer due to a rise in prices, Oolaboo is entitled to change the prices accordingly.
3. The Purchaser has the right to dissolve the Agreement by means of a written declaration if there is a price increase of more than 10%. The dissolution must take place immediately after the price increase.
4. If a price increase is a result of a statutory or other government measure, Oolaboo is entitled to charge this on to the Purchaser, even if it has been agreed that the price is fixed, without this giving the Purchaser the right to dissolve the Agreement. The provisions of paragraph 3 do not apply in this case.
5. A compound quotation does not oblige Oolaboo to deliver part of the Goods included in the Agreement against a corresponding part of the price quoted.
Annex D-1 (Article 9.2)
Article 5 – PAYMENT
1. Payment must take place within 30 days after the invoice date. If payment takes place within 14 days after the invoice date, the Purchaser is entitled to deduct a two percent payment discount. If the payment term of 30 days is exceeded, without full payment having taken place, the Purchaser is in default by operation of law and a default interest equal to the applicable statutory interest is due.
2. Each payment serves in the first place to pay the interest and collection charges owed by the Purchaser and then to pay the outstanding claims in order of age, starting with the oldest outstanding claim.
3. Oolaboo retains the right to require a down payment, full advance payment or other security for payment from the Purchaser.
4. In case of liquidation, bankruptcy, attachment, (temporary) applicability of the debt management scheme, guardianship order or suspension of payment of the Purchaser and/or suspension and/or dissolution as a result of Article 9 of these general terms and conditions, Oolaboo's claims are immediately due and payable.
5. An appeal to suspension or setoff by the Purchaser is not permitted.
6. If the Purchaser is in default with any payment, Oolaboo is entitled to suspend the Agreement and its performance and any related agreements.
Article 6 – DELIVERY AND TRANSPORT
1. Oolaboo strives to observe delivery terms and times as much as possible, but these are not binding. If a delivery term and/or time is exceeded, the Purchaser is not entitled to compensation of costs and/or any compensation for damages and the Purchaser is also not allowed to dissolve his obligations ensuing from the Agreement.
2. The delivery term starts on the day the Agreement is formed.
3. Delivery takes place (by a transport company) at the address provided by the Purchaser.
4. Oolaboo reserves the right to make partial deliveries.
5. The risk of the products (for damage, loss, etc.) passes to the Purchaser upon delivery of the products by Oolaboo to the carrier, the transporter, or any other third party designated (by Oolaboo or the Purchaser) for the transport. If delivery of the products is delayed by the Purchaser, he is in default de jure from the moment Oolaboo has indicated that the products are ready for shipping. Oolaboo is then authorised to store the products for the account and risk of the Purchaser or to sell these to a third party. The Purchaser still owes the purchase price, plus the interests and costs (as compensation for damages), when applicable reduced by the net proceeds of the sale to this third party.
Article 7 – USE OF GOODS AND INTELLECTUAL AND INDUSTRIAL PROPERTY
1. Oolaboo retains all rights of intellectual and industrial property rights for, including but not limited to, copyrights, trademark rights, parent rights, database rights, design rights and trade name rights.
2. If requested, the Purchaser will assist Oolaboo at no cost in taking measures against third parties in order to maintain and defend the intellectual and industrial property rights.
3. The packaging Oolaboo uses and which shows Oolaboo's figurative marks may only contain Goods that have been sold and delivered by Oolaboo.
Article 8 – RETENTION OF TITLE
1. All Goods delivered and to be delivered remain the property of Oolaboo until the Purchaser has complied with all his payment obligations pursuant to all Agreements concluded with Oolaboo.
2. The payment obligations referred to in paragraph 1 consist of paying the purchase price of the Goods delivered
Annex D-1 (Article 9.2)
and to be delivered, plus claims regarding work performed that relates to the delivery and claims as a result of attributable breach of the Purchaser in the performance of his obligations from Agreements concluded with Oolaboo.
3. Goods subject to retention of title may only be sold on and/or used and/or consumed by the Purchaser in the context of normal business operations.
4. As long as the Goods delivered are subject to retention of title, the Purchaser is not authorised to pledge and/or otherwise encumber the Goods and/or to give them into the actual control of a supplier.
5. If a third party alleges retention of title and/or security interests and/or seizes the Goods delivered by Oolaboo, the Purchaser is obliged to inform Oolaboo thereof in writing immediately. The Purchaser is also obliged to inform the third party that the Goods delivered by Oolaboo are subject to retention of title.
6. If a Purchaser buys similar goods from other suppliers, the Purchaser is obliged to store the Goods delivered by Oolaboo in such a way that these Goods can be identified as the property of Oolaboo. The Purchaser is not allowed to mix the Goods delivered by Oolaboo with similar goods that are or will be delivered by another supplier.
7. If Oolaboo wishes to exercise the retention of title indicated in this article, the Purchaser now unconditionally and irrevocably allows Oolaboo to enter all those places where its property is placed and to take those Goods back.
8. The Purchaser is obliged to treat the Goods delivered by Oolaboo subject to retention of title carefully and to insure them against fire, explosion and water damage as well as against theft. The Purchaser is obliged to present a copy of the insurance policy to Oolaboo at its first request.
Article 9 – FORCE MAJEURE, SUSPENSION AND DISSOLUTION
1. Failures by Oolaboo in the performance of the Agreement cannot be attributed to it if
they are not due to its fault, or if they are not for its account pursuant to the law, the Agreement or according to common opinion.
2. In these general terms and conditions force majeure includes: weather conditions, war, danger of war, riots, work strike, exclusion of workers, transport difficulties, fire, a general lack of required raw materials and other goods and/or services required to effect the performance agreed upon, lack of personnel, unforeseeable delay at suppliers or other third parties which Oolaboo depends on, government measures and other serious disruptions in the business of Oolaboo or its suppliers.
3. If performance is delayed more than one month due to force majeure, either of the parties is authorised to dissolve the Agreement according to law or to suspend performance of the Agreement, to the exclusion of further rights, without Oolaboo being obliged to pay any compensation for damage suffered by the Purchaser or third parties.
4. If the Purchaser does not comply with any obligation ensuing from the Agreement concluded with Oolaboo or any related agreement, or does not do so sufficiently or in a timely manner, or if there is a reasonable fear that the Purchaser is not or will not be able to comply with his contractual obligations towards Oolaboo, as well as in cases of bankruptcy, suspension of payments, shutdown, liquidation or partial transfer – as security or otherwise – of the Purchaser's business, or in case of death or guardianship order of the Purchaser or (temporary) application of the statutory debt management scheme to the Purchaser, Oolaboo is entitled to suspend and/or dissolve performance of the Agreement in whole or in part, without judicial intervention, and without it being held to any compensation for damages towards the Purchaser.
5. In case of dissolution by Oolaboo pursuant to paragraph 4, the Purchaser owes Oolaboo the costs of the goods and/or services reserved and ordered from third parties by Oolaboo for
Annex D-1 (Article 9.2)
performance of the Agreement, for the value that must be reasonably assigned to those goods and/or services, without prejudice to Oolaboo's other rights.
Article 10 – COMPLAINTS
1. The Purchaser is obliged to inspect the Goods immediately on or after delivery.
2. Complaints by the Purchaser, including deviations in the quality of the goods delivered and services performed, must be submitted within 5 days after delivery. The complaint must contain a description of the defect that is as detailed as possible, so that Oolaboo is able to respond in a sufficient manner. If the Purchaser has not submitted a written complaint to Oolaboo within the aforementioned term, any failure in Oolaboo's performance can no longer be invoked.
3. If the Purchaser makes a complaint, he must allow Oolaboo to have an expert or independent testing body inspect the Goods involved. If the expert considers the complaint to be well-founded, the costs of the inspection will be for Oolaboo. If not, the costs will be for the Purchaser's account.
4. Complaints by the Purchaser do not affect the payment obligations pursuant to the Agreement.
5. If the complaint is considered to be well-founded, the Purchaser has the option of replacing the Goods in question with new Goods for the account of Oolaboo, or refunding the invoice value of the Goods in whole or in part. Oolaboo will be fully discharged after complying with one of these obligations.
6. Return of the Goods delivered can only take place after prior approval by Oolaboo.
Article 11 – LIABILITY
1. Notwithstanding the other provisions of these general terms and conditions, Oolaboo is only liable towards the Purchaser for the damage that is the direct result of an attributable breach in the performance of the Agreement.
2. If Oolaboo is liable, its liability, in so far as it is covered by its liability insurance, is limited to the amount of the payment made or to be made by its insurer.
3. If in any case Oolaboo's insurer does not make a payment, or the damage is not covered by the insurance, Oolaboo's liability is limited to the invoice value of the Goods in question.
4. Oolaboo is not liable for consequential damage, damage due to lost profits, immaterial damage or damage ensuing from third-party claims against the Purchaser.
5. Oolaboo is not liable for damage caused by employees of Oolaboo or damage caused by third parties engaged (in any case including transporters engaged), unless there is intent or deliberate recklessness.
6. The Purchaser indemnifies Oolaboo against claims for damages of third parties in connection with Goods delivered by Oolaboo to the Purchaser or services performed for the Purchaser in so far as this damage is not for Oolaboo's account and risk in the relationship with the Purchaser pursuant to the Agreement and these general terms and conditions.
Article 12 – CHOICE OF LAW AND FORUM
1. All agreements to which these terms and conditions apply in whole or in part are governed by Dutch law.
2. All disputes ensuing from tenders/offers and agreements, under whatever name, will be submitted to the District Court of Gelderland. However, Oolaboo remains authorised to submit a dispute to the court authorised pursuant to law or the applicable international treaty.
These general terms and conditions have been filed with the Chamber of Commerce and Industry Woerden under number 53047796