Article 1: Definitions
In these terms and conditions, the following definitions apply: – Seller: The producer, importer, distributor, wholesaler, or retailer of wine or distilled spirits who enters into a sales agreement regarding wine, distilled spirits, or related articles with a buyer; – Buyer: The purchaser who enters into a sales agreement with the seller concerning wine, distilled spirits, or related articles; – Contract goods: Wine, distilled spirits, packaging, or related articles sold by the seller to the buyer, or made available for free or otherwise; – Pre-sale: The sale of wines that have not yet been brought to market at the time the agreement is concluded; – Consumer: A natural person not acting in the exercise of their profession or business; – Business days: All days of the week except Saturdays, Sundays, and legally recognized holidays; – In writing: Communication by letter, fax, or email.
Article 2: Applicability of these terms
- Unless otherwise agreed in writing, these terms apply to every sales agreement (hereinafter: “the agreement”) between the seller and the buyer. This applies whether the goods to be delivered under the agreement are delivered directly by the seller or through third parties or intermediaries. b. The buyer is obliged to ensure, through a chain clause in the event of resale or onward sale of the contract goods, that the buyer, in favor of the seller, has the same rights and obligations towards the seller as the buyer has towards the seller under Articles 9, 12, and 13. c. These terms apply to all agreements made between the seller and the buyer. The seller will provide and/or make these terms available to the buyer before concluding the agreement. d. These terms also apply if they have been applicable to a previous agreement between the seller and buyer, unless the seller has expressly waived their applicability. e. The seller reserves the right to amend and/or supplement these terms. In the case of a material amendment, the seller will notify the buyer in writing. Unless the buyer objects in writing within 2 weeks from the date of the written notification, the buyer is deemed to have silently agreed to the amendment or supplement. f. The buyer is not permitted to transfer rights and obligations from these terms to third parties without prior written consent from the seller. g. These terms supersede any terms provided by the buyer, even if they reach the seller after the buyer has received them from the seller.
Article 3: Offers, quotations, price lists
- Offers, quotations, and price lists from the seller are non-binding. b. In the case of a fixed quotation, it will be valid for the period specified by the seller; if no period is specified, the offer expires after one month.
Article 4: Formation of an agreement
- The agreement is concluded through express acceptance by the buyer of a definitive offer from the seller. b. The agreement is also formed if the seller does not notify the buyer in writing that the order is not accepted within eight business days after the business day on which the order was received. c. The provisions of this article also apply to pre-sale. d. If the agreement is concluded electronically and the buyer is not a consumer, the seller is not obliged to send an acknowledgment of the acceptance to the buyer.
Article 5: Intellectual property rights
- All intellectual property rights on the products sold by the seller or any materials provided to the buyer under these terms belong to the seller or its suppliers. b. Copying, distribution, and any other use of these materials are not permitted without written consent from the seller, unless otherwise provided by mandatory law. c. The buyer is not allowed to register the trademarks, trade names, or other identifiers of the seller or its suppliers as a trademark, domain name, social media account, or otherwise, without prior written consent from the seller.
Article 6: Prices and discounts
- The prices and discounts applied by the seller are those listed in the price list valid on the day the agreement is concluded or as otherwise agreed on that day. b. The prices used by the seller are, unless otherwise agreed, “ex-seller,” including excise duties, taxes, import duties, other levies, and packaging, and excluding VAT (but including VAT in the case of sales to consumers). c. The seller reserves the right to increase the agreed contract prices based on increases or surcharges on:
- import duties,
- excise duties,
- packaging/environmental taxes,
- other taxes,
- levies by public organizations,
- other charges,
- freight rates,
- transport costs and insurance premiums of the contract goods and raw materials needed for the production and transport of the contract goods. The same applies in the case of legal provisions that result in abnormal risks for the industry. d. The seller will notify the buyer of the price increase as soon as possible. The buyer has the right to cancel the order, provided that the cancellation is made in writing within 8 days after notification of the price change. e. If the buyer resells the delivered contract goods, they are obliged to use the recommended prices and any related quality designations as provided by the seller in any publication and/or advertisement.
Article 7: Payment
- Unless payment in cash or delivery on a COD (cash on delivery) basis has been agreed upon, the invoice amount for the contracted goods must be paid in full within 10 working days from the invoice date, either in cash at the seller’s office or by transfer to the bank account indicated by the seller.
- If the buyer fails to meet its payment obligation(s), the seller, without prejudice to the provisions in Article 18 and without prejudice to the right to claim damages under the law, is entitled to interest and administrative costs.
- The interest compensation will be equal to the statutory commercial interest rate plus 4%. This compensation will be calculated over the outstanding amount after the payment term mentioned in point a. and for the period that the payment term is exceeded. The administrative costs amount to 2% of the gross invoice value. If the buyer is a consumer, the statutory interest will apply instead of the statutory commercial interest.
- The amount owed by the buyer becomes immediately due and payable without any notice of default in the event that any of the following situations occur:
- the bankruptcy of the buyer or the filing for bankruptcy by the buyer;
- a request by the buyer for suspension of payments;
- the buyer being placed under guardianship;
- the death of the buyer;
- seizure of the buyer’s assets;
- (a decision to) liquidate or sell the buyer’s business;
- the buyer fails to properly or timely meet any of the obligations arising from the agreement.
- The seller may first apply payments made by the buyer to satisfy unpaid payment obligations of an earlier date to the seller or any enterprise affiliated with the seller.
- Any counterclaims by the buyer against the seller or any entity affiliated with the seller, for whatever reason, may not be offset against claims by the seller.
- In case of the invalidity of a part of the invoice amount, the buyer must pay the remaining owed portion of the invoice amount, subject to the other provisions of this article.
- The seller is entitled to invoice partial deliveries of orders that are carried out in parts.
- If the buyer fails to comply with any of the provisions of these conditions, all claims by the seller against the buyer, regardless of their nature, become immediately payable without any notice of default being required.
Article 8: Delivery
- Delivery is made “ex works” (from the seller’s premises), unless otherwise agreed.
- If delivery “free to the buyer” has been agreed, the following provisions apply:
- The seller chooses the mode of transportation by which the contracted goods will be delivered to the delivery address.
- The risk of the contracted goods transfers at the moment they are delivered free to the buyer from the transport mode referred to in b.1.
- The free delivery of the contracted goods to the buyer takes place at the delivery address specified by the buyer, or as far as the transport mode referred to in b.1 can reach according to the sole judgment of its driver. If the buyer refuses to accept the contracted goods at that point, any costs arising from that refusal, for whatever reason, are borne by the buyer. The risk of the contracted goods, however, transfers to the buyer at that moment.
- Free delivery does not extend beyond placing the goods on the unloading dock or just over the threshold of the agreed delivery address.
- Upon the free delivery of the contracted goods, the buyer must assist in unloading the cargo at their own expense (for example, by providing mechanical aids like forklifts with operators).
- Delivery takes place during the seller’s normal working hours.
- Agreed delivery times are target times. After the agreed delivery time has passed, the buyer is entitled to remind the seller, and the seller must deliver within a reasonable time after the reminder.
- The seller is entitled to deliver the contracted goods in installments.
- The buyer is obliged to accept the delivered contracted goods upon the first offer. If the buyer fails to do so, all costs resulting from this will be charged to the buyer.
- if the delivery is done by someone outside of The Netherlands. The buyer is obliged to contact the seller to complete the order.
Article 9: Complaints
- The buyer must report any complaints regarding the contracted goods immediately after the defects could reasonably have been detected, but in any case, within ten days after delivery, in writing to the seller. The buyer must accurately specify the nature and grounds of the complaint as well as the related invoice. If the buyer is a consumer, the statutory guarantee from the Civil Code applies.
- In deviation from point a., in the case of free delivery, any visible damage to or visible loss of the contracted goods during transportation to the agreed delivery address must be noted by the buyer or on behalf of the buyer in writing on the transportation document in the presence of the driver of the transport vehicle referred to in Article 7b. The buyer must immediately send a copy of this document to the seller.
- The buyer must, insofar as can be reasonably expected, but in any case, no shorter than twenty working days after the complaint, allow the seller the opportunity to verify any missing items, discrepancies in size, or damage by inspecting the contracted goods in their original condition and packaging. However, if the buyer has already fully or partially processed or resold the contracted goods, any right to complain and to claim damages expires.
- Complaints do not entitle the buyer to suspend their payment obligation(s).
- If the seller finds a complaint to be valid, the seller will, at its discretion, either pay compensation up to a maximum of the invoice value of the relevant contracted goods or replace the relevant contracted goods free of charge. The seller is not obliged to compensate any further damages or indirect damages (whether or not suffered by the buyer’s customers). This limitation does not apply in the case of consumer sales.
- Each partial delivery is considered a separate delivery for the purposes of complaints.
- Returned goods may only be sent free of charge and at the buyer’s risk after obtaining written permission for the return from the seller. If the seller issues a credit note in connection with the return, €3.00 per package with a maximum of €70.00 for a full pallet will be deducted from the net invoice amount. The return shipment must be made within five working days after obtaining permission and must be free of charge to the seller’s address. The buyer is responsible for careful packaging and shipping. For consumer purchases made electronically, the provisions of Article 10 apply.
Article 10: Right of Withdrawal
- If the contract goods are ordered electronically and delivered to consumers, the statutory right of withdrawal applies.
- The consumer has 7 working days, counted from the delivery date, to return the contract goods.
- Perishable goods are excluded from the right of withdrawal.
Article 11: Retention of Title
- All contract goods remain the property of the seller after delivery, until the buyer has fulfilled all obligations toward the seller concerning the counter-performance for all deliveries (now or in the future) from the seller to the buyer or concerning other services rendered by the seller for the buyer under any agreement between the buyer and the seller, including payment of compensation for failure to fulfill the aforementioned agreements, including interest, costs, and penalties.
- The buyer is obliged to store the goods delivered under retention of title with due care and clearly marked as the property of the seller.
- As long as the buyer has not fulfilled all obligations as described in paragraph 1, the buyer may not transfer ownership of the contract goods to third parties except in the normal course of business, nor may they be pledged to third parties as security.
- The buyer must immediately inform the seller of any claims or attempts by third parties to seize or take possession of contract goods covered by the seller’s retention of title and must confirm this in writing to the seller.
- The buyer grants the seller permission to enter the premises where the contract goods are located at any time (even outside normal business hours) to retrieve and take possession of the contract goods under the retention of title.
- The buyer must, at the seller’s request, provide additional security for the proper fulfillment of their obligations toward the seller.
- The buyer is responsible for insuring the contract goods that are subject to retention of title against normal business risks and must, at the seller’s request, provide access to the relevant insurance policies.
Article 12: Pallets
- The buyer must return the pallets used for the delivery of contract goods at their own expense and risk, free of charge, within twenty working days to the seller.
- Ownership of these pallets always remains with the seller.
Article 13: Force Majeure / Unforeseen Events and Other Circumstances
- The seller may delay the delivery of the contract goods without any compensation in the event of force majeure or if unforeseen events or circumstances make it impossible to fulfill ongoing orders on time without additional arrangements or efforts. In such cases, the seller is also entitled to wholly or partially dissolve the agreement without court intervention and without any compensation. Even in the case of temporary suspension, the seller will still be entitled to declare the agreement wholly or partially dissolved if he is unable to deliver due to force majeure or unforeseen events or circumstances.
- Force majeure or events and circumstances as referred to in paragraph 1 include but are not limited to:
- A state of war and state of siege in both formal and material sense,
- Civil war,
- Riots,
- Mobilization,
- Worker actions of any kind,
- Road blockades,
- Worker lockouts,
- Sudden business disruptions,
- Sudden excessive employee illness,
- Late or defective delivery of raw materials, auxiliary materials, finished products, and packaging materials,
- Government regulations,
- Refusal or failure to obtain import permits or other necessary government approvals,
- Complications of imports or exports by governments or third parties,
- Fire,
- Extreme weather conditions (such as frost, heavy rainfall, storms),
- Flooding,
- Disruptions in the energy supply,
- Machinery breakdowns.
- If the force majeure situation lasts so long that the buyer can no longer reasonably demand performance from the seller, either party may dissolve the agreement for the future by a single written declaration without court intervention and without any compensation.
Article 14: Seller’s Liability
- The seller’s liability is expressly limited to the provisions in Article 8.e, except in cases where there is damage due to intent or gross negligence on the part of the seller or his managing subordinates.
- The seller is never liable for any “further” damages, including consequential damages. The seller is therefore not obliged to compensate for business losses, lost profits, damage resulting from personal accidents, damage arising from claims of third parties against the buyer, or any other form of damage. The buyer indemnifies the seller against all claims from third parties relating to goods supplied by the seller to the buyer.
- If there is damage resulting from a defect in the product as referred to in Articles 6:185 of the Dutch Civil Code and following articles, the seller will provide the necessary information of the product’s manufacturer to the buyer. The buyer is required to lodge his claim with the manufacturer unless the seller must be considered the manufacturer based on Article 6:187 of the Dutch Civil Code.
- For sales to consumers, the seller’s liability limitation does not apply.
Article 15: Manner of Trading
- The buyer must only trade the contract goods in their original, undamaged packaging provided by the seller. The buyer is, however, allowed, with prior written consent from the seller, to trade individual items of contract goods that were delivered in bulk packaging, provided that these individual products are traded in their original, undamaged packaging from the seller.
- For each violation of the obligations specified in this article, the buyer forfeits to the seller an immediately payable fine of €5,000, without the right to set-off or reduction. For this, the seller does not need to provide the buyer with a notice of default. In addition to this fine, the seller has the right to claim damages and may terminate the agreement(s) with the buyer immediately.
Article 16: Publicity and Promotional Materials
- Any publicity and promotional materials provided by the seller to the buyer, whether free of charge or not, for the purpose of supporting the sale of the contract goods or future contract goods, will always remain the property of the seller.
- The buyer must, at the first request of the seller, return these materials to the seller’s business address at their own risk and expense, in an undamaged and unaltered condition.
Article 17: Internet Sales
For sales to consumers via the internet, the legal regulations for distance selling apply.
Article 18: Nullity, Voidability
- The nullity, voidability, or unreasonable onerousness of one or more provisions of the agreement(s) between the seller and the buyer or of these conditions will not lead to the nullity, voidability, or unreasonable onerousness of the agreement(s) between the seller and the buyer or these conditions as a whole.
Article 19: Applicable Law and Disputes
- These conditions and the agreement(s) to which they refer are exclusively governed by Dutch law.
- All disputes related to these conditions and the agreement(s) to which these conditions refer will, in the first instance and to the exclusion of any other court, be submitted to the competent court in the location of the seller’s actual place of business, unless the buyer, within one month after the seller has invoked this clause in writing, opts for the competent court according to the law. If the buyer is a consumer, the court competent under the applicable law will have jurisdiction.
- Notwithstanding the provisions of paragraph 2, the buyer and seller may agree that any dispute arising between them, or between the seller and the successors in title of the buyer, arising from their agreements and these conditions, and any additional agreements and conditions resulting from these, will be finally decided by arbitration in accordance with the regulations of the Netherlands Arbitration Institute.
Article 20: Judicial and Other Costs
- All judicial and extrajudicial costs that the seller must reasonably incur in enforcing compliance with these conditions and the agreement(s) to which these conditions refer will be borne by the buyer.
- Consumers are only liable for these costs after they have been reminded by the seller.