General Terms & Conditions for Wholesale
version: 2.1 | last updated: 20 January 2020
Art. 1 DEFINITIONS
In these General Terms and Conditions for Wholesale, “Seller” is hereinafter understood to mean Anothermay B.V., distributor of and also acting under the name Phil&Phae. The term “Buyer” is hereinafter understood to mean any (legal) person who has concluded or wishes to conclude an agreement with Seller.
Art. 2 APPLICABILITY
2.1 These General Terms and Conditions for Wholesale (including all offers and documents referenced herein, together the “Terms”), shall apply to all offers and/or agreements made by Seller to or with third parties.
2.2 By placing an order Buyer is automatically agreeing to these Terms. The Terms will then also apply to future transactions, even when they are not explicitly referenced or agreed to again.
Art. 3 OFFERS
3.1. All offers made by Seller are non-binding until accepted in writing by Buyer, or until fulfilment of the agreement. If Buyer does not object in writing to an order confirmation of Seller within 5 business days, Buyer is bound by the order resulting in an agreement between Seller and Buyer.
3.2. Seller may change the information provided by it from time to time and is not liable for any misprints and typos.
3.3. Seller reserves the right to change prices. In case purchase prices in the agreement will be increased, Buyer reserves the right to rescind the agreement within 5 working days after having been notified of the increase by Seller. Seller is not liable for damages due to the termination.
3.4. Seller holds the right to refuse any order request without explanation.
Art.4 DELIVERY AND RETENTION OF TITLE
4.1. Terms and conditions concerning the delivery and delivery charges are made individually for each Buyer. Until the purchase price has been paid in full, the goods remain the property of the Seller. Shipment will only be made once the purchase price has been made in full.
4.2. The delivery date or timeframe stated by Seller or agreed is indicative and shall therefore not be regarded as a fatal term, unless agreed explicitly differently in writing. Seller is never liable for the consequences of any delays, nor obliged to pay any compensation. However, Buyer has the right to cancel the order in case the goods will be dispatched later than 6 weeks (42 days) after the indicated expected delivery date, but only in case all invoices regarding orders from Buyer were paid by Buyer before the invoice due dates.
4.3. The goods are at the risk of Buyer as soon as the goods have been delivered. Material damages to the goods incurred during shipment or delivery should be reported in writing, including photos, within 3 working days after receipt of the goods. These damage claims will then be processed as described in article 6.3. In case Buyer chooses to have goods shipped with limited or no insurance, Buyer cannot hold Seller responsible for any damages due to or during transportation.
4.4. Under-delivery up to 10% of the original confirmed order quantity, for example due to production shortages or errors, is considered reasonable and does not give Buyer the right to cancel the order. Orders placed after the order deadline or with order values below the minimum may be under-delivered up to 20%.
Art. 5 PAYMENTS AND CANCELATION
5.1 A 30% deposit is required for pre-orders, unless otherwise agreed in writing on the order confirmation. Orders of which the deposit was not paid timely (meaning within 30 days after the first deposit invoice date) will not be guaranteed. Buyer can only cancel an order upon payment of a cancellation fee of 30% of the total order value and meeting the requirements as described in article 5.5.
5.2. Payments must be made without deduction or set-off and, unless otherwise agreed, within 15 days after receipt of the invoice. Any bank charges that may apply are for Buyer’s account.
5.3 For late payments, Seller is entitled to charge the statutory commercial interest rate as per article 6:119a of the Dutch Civil Code. Any expenses made by Seller to collect unpaid amounts (including but not limited to lawyer’s and other legal fees) shall be for account of the Buyer.
5.4 If orders are not fully paid 4 weeks after the (balance) invoice was sent, Seller reserves the right to fully or partially cancel the order without losing the right to impose a cancellation fee of 30% of the total order value.
5.5 If Buyer wishes to cancel an order for material grounds, such as an imminent bankruptcy of Buyer, the cancellation fee is 30% of the total order value. In case the deposit of 30% was already paid, this payment will be considered as the cancellation fee. Orders cannot be cancelled by Buyer once the order has been shipped to Buyer, and/or the initial due date of the invoice has expired more than 40 days, and/or in case the unpaid invoice(s) are already handed over to a debt collector.
5.6 In addition to any (cancellation) fee, Seller reserves the right to claim full compensation for damage incurred and to demand that Buyer comply with its obligations under these Terms and any related agreement. Furthermore, Seller reserves the right to request higher damages and/or penalties in legal proceedings.
Art. 6 WARRANTY
6.1. Any claim on account of missing or wrong goods, or goods that contain a material defect, must be made in writing by Buyer within 10 days after receipt of the goods by Buyer. Absent such claim, Buyer is deemed to have accepted the goods and cannot make any further claims in relation to those goods.
6.2 Differences between goods may arise, including but not limited to colour differences. Those differences that cannot be avoided technically, are considered part of the design and/or are generally in accordance with commercial practice, do not constitute grounds for claims.
6.3. If the Seller accepts defect, it will only be material defects, not minor defects. If the Seller accepts a material defect, as notified by the Buyer according to article 6.1 or article 4.3, Seller shall have the choice to repair or replace the defective goods or to refund the purchase price of such defective goods. In both cases the goods concerned will be kept by Buyer (at Buyer’s risk) at the disposition of the Seller and shall only be returned by the Buyer to the Seller after specific instructions and approval by the Seller.
6.4 Seller grants a warranty on the products which expires 3 months after the date of sale of the products by Buyer to end-users or 6 months after the goods have been delivered to Buyer, whichever comes first. The warranty includes production errors and reasonable quality claims, but expires when goods are altered/amended, are not stored or used as intended or when the wash/care instructions were not followed adequately. Compensation shall never exceed the purchase price paid by Buyer.
Art. 7 LIABILITY
7.1 Buyer is liable for compliance with any customs-, import- and other regulations and for payment of any taxes, costs or other duties that may be levied by the relevant authorities.
7.2. Goods supplied by Seller are designed with utmost care, taking into account commonly known Dutch and European rules and regulations concerning mechanical and chemical child safety. However, Buyers that deliver, offer and/or sell our goods outside the Netherlands are liable to inform about and comply with local regulations, both for child safety as for any other applicable rules, regulations and laws. In case any tests have to be conducted and/or changes need to be made, this is at Buyer’s expense and responsibility.
7.3. Seller’s liability is limited to reimbursement of the purchase price paid by Buyer for a defective good. Any other liability of Seller is explicitly excluded. The above limitation and exclusion do not apply if the damage is caused by the intent or gross negligence of Seller or Seller’s management.
7.4. Condition for the existence of any right to compensation is always that Buyer reports the damage to Seller in writing, as soon as reasonably possible, and that Buyer has completely fulfilled all his obligations under the agreement. Otherwise the Seller shall not be liable for whatever damages or losses.
7.5. Advice and assistance provided without charge is given in good faith and to the best of Seller’s knowledge but without responsibility. Any information, including but not limited to product descriptions, that is provided to Buyer, for example for use on websites, is provided as a service. Seller does not guarantee that such information is correct, complete or up to date. It is Buyer’s own responsibility to rely on it and verify such information.
Art. 8 FORCE MAJEURE
Seller is not liable for any default or delay to fulfil any obligation if it is are prevented from doing so due to circumstances beyond its control (“Force Majeure”). If suspends its performance over three months as a result of Force Majeure, the other party may terminate the agreement by registered letter without judicial intervention.
Art. 9 INTELLECTUAL PROPERTY AND CONFIDENTIALITY
9.1. Seller holds intellectual property rights to the brand and trade name Phil & Phae and to the goods, designs, pictures, accompanying materials and graphic representations supplied or made available by Seller, or is entitled to use them. Buyer may not use Seller’s intellectual property rights without Seller’s prior written consent.
9.2 Seller makes all reasonable efforts to avoid that its goods and materials infringe any third party rights, but cannot guarantee this and therefore does not provide any indemnification in this respect.
9.3 Upon becoming aware of a possible infringement of Seller’s rights by a third party, Buyer shall immediately inform Seller thereof.
9.4 Upon becoming aware of a possible claim that Seller’s goods infringe a third party’s rights, Buyer shall immediately inform Seller thereof. If Buyer receives a claim from a third party, Buyer shall be responsible for handling the claim but will always consult with Seller first, to ensure that Seller’s intellectual property rights are not damaged.
9.5 Buyer will not cause any damage to the trademarks of Seller.
9.6 Buyer shall treat as confidential all information received from Seller. Any images or information provided to Buyer for use for marketing purposes may not be disclosed or shared until the launching date of the collection it concerns, unless stated otherwise.
Art. 10 TERMINATION
Either party may terminate (including rescind) the agreement (in whole or in part) with immediate effect by giving written notice to the other Party Buyer, if:
a) the other party is in default of a material obligation under the agreement and has failed to cure such default, if cure is still possible and/or required by applicable law, within 21 (twenty-one) days after having been notified of the default by the terminating party;
b) suspension of payments or bankruptcy has been requested or granted with regard to the other party;
c) the other party is dissolved, liquidated or ceases to carry on its business or a decision is taken to that effect; or
d) the other party suspends its performance of the agreement for more than 3 (three) months due to Force Majeure as per article.8.
Art. 11 MISCELLANEOUS
11.1 Seller may change these Terms at any time. By placing an order you agree that the latest version of these Terms will apply to your order.
11.2 Any deviation from the terms of the agreement (including the T&C’s) must be done in writing and signed by both parties.
11.3 References to ‘in writing’ also includes email or a digital agreement,, unless stated otherwise.
11.4 If any part of these Terms is invalid or unenforceable, it shall be replaced by a valid terms and the remainder of these Terms will remain in place.
11.5 Failure to enforce any part of these Terms shall not be a waiver of any right of Seller, a waiver must always be done explicitly and in writing.
11.6 Any terms and conditions of Buyer are explicitly rejected and do not apply to the agreement between Seller and Buyer.
11.7 Buyer’s information and personal data will be handled with care and may be used for the fulfilment of agreements, to inform Buyer about offers or to fulfil legal obligations. For more information on Seller processes, uses and stores personal data, please read the Privacy Statement.
Art. 12 DISPUTES
12.1 These Terms and any agreement between Seller and Buyer are governed by Dutch law, without regard for conflict rules under Dutch private international law. The applicability of the United Nations Convention on the International Sale of Goods (Vienna Convention of 11 April 1980) is explicitly excluded.
12.2 All disputes arising our of or relating to the Terms and any related agreements will be settled exclusively by the competent court of Amsterdam, the Netherlands, unless the Seller agrees to the competent court of the domicile of Buyer.