CHA GENERAL TERMS OF DELIVERY 2019
1. Applicability and Commencement
- These General Terms of Delivery (the Delivery Terms) are applicable to each quotation of and contract with CHA for the sale and delivery of CHA shoes, boots, bags, leather products, knitwear and related accessories (the goods).
- Deviations from and amendments to these Delivery Terms will only be binding insofar as CHA has explicitly confirmed this in writing, duly signed by an authorised representative of CHA.
- The general terms and conditions of buyer will not be applicable unless and insofar as CHA has expressly agreed to this in writing, duly signed by an authorised representative of CHA.
- For the purposes of these Delivery Terms, "buyer" will also mean "purchaser", “customer”, “dealer” or "distributor" as and when appropriate.
- A contract to deliver goods will be deemed to have commenced between CHA and buyer when buyer's order has been confirmed in writing by CHA or when CHA has commenced delivery of such order.
2. Offers and orders
- All offers and quotations made by or on behalf of CHA are made without obligation and are valid for a period of thirty (30) days, unless otherwise indicated by CHA. CHA shall be entitled to withdraw its offer within five (5) working days after receipt of the acceptance of the offer by buyer. Orders, contracts and agreements will only be binding upon CHA if and insofar as they have been confirmed by CHA.
- CHA cannot be held liable for errors or deviations in illustrations, drawings and/or other specifications used in offers or order confirmations, since such illustrations are provided only as a general indication and are not binding.
- CHA shall at any time be entitled to alter the goods, specifications and instructions for use to improve them or to comply with applicable standards and governmental regulations.
- All orders will be binding upon buyer after signing the order. In the event of a cancellation of an order by buyer, the following applies: within 10 days after the order was submitted, buyer will pay 20% of the order value, within 30 days, 40% of the order value and within 60 days, 80% of the order value. Thereafter, the full order value will be payable by buyer and clause 4.4 applies.
- Unless otherwise agreed in writing, deliveries will be made by CHA against the prices specified in the price list published by CHA and in force on the date of acceptance of the order.
- All prices quoted by CHA are exclusive of VAT, possible export or import duties, forwarding costs, delivery and insurance costs.
- CHA reserves the right to adjust the prices for the goods from time to time.
- The delivery and processing times commence after receipt by CHA of the data, goods and/or arranged payments necessary for the performance of the contract.
- The delivery time quoted by CHA is an estimate only which will be observed by CHA as far as possible. In the event of late delivery of the goods, CHA must be formally declared to be in default in writing and must be granted an additional reasonable term to satisfy its obligations. If the extended term is exceeded, buyer shall be entitled to dissolve the contract insofar as no deliveries have taken place. CHA shall not be liable for any damage resulting from late goods.
- CHA shall be allowed to deliver the goods in partial deliveries.
- Buyer will be obliged to accept the delivered goods and offer CHA every opportunity and co-operation to do so. If buyer acts in violation of this obligation, said goods will be stored at the expense and risk of buyer. Buyer shall pay CHA all additional delivery, storage and insurance costs and any other costs incurred along with any loss arising in connection with such neglect or refusal.
- Delivery of goods will be effected Free Carrier, Incoterms 2010, at a location specified by CHA, unless agreed otherwise between the parties in writing. From the moment of delivery, the risk of loss or damage shall pass to buyer even if title to the goods have not yet passed.
5. Payment and Security
- The goods will have to be paid by buyer by means of pre-payment (payment upon submitting an order), unless agreed otherwise by the parties in writing.
- The date of payment shall be the date on which the amount due has been credited to the bank account.
- Buyer shall not be entitled to invoke any set-off.
- Upon expiration of the term of payment, buyer shall be in default and, as of that date, it shall owe interest at a rate corresponding to the Dutch statutory trade interest (‘wettelijke handelsrente’).
- CHA shall at any time be entitled to demand adequate security or whole or partial advance payment from buyer before it performs (further).
- Besides the statutory trade interest, CHA is in the event of not payment or delays in payment by buyer, entitled to out-of-court collection costs, for an amount of at least EUR 200 per claim.
6. Retention of Title and Right of Pledge
- CHA shall retain title to all goods delivered or to be delivered to buyer until CHA has received payment in full of the purchase price of the goods and any interest or costs due and payable.
- During such time as CHA has title to the goods, buyer shall store or otherwise keep CHA’s goods separately from all other goods in such a way as to clearly indicate at all times that the said property remains that of CHA. All costs incurred by CHA in repossessing the goods shall be paid by buyer. During such time as CHA retains title to the goods, buyer in possession of the goods shall have the power to deal with and actually deliver the goods in the normal course of its business.
- At CHA’s first request, buyer shall establish a silent pledge on behalf of CHA on the account receivable from the sale of any of such goods.
- Buyer shall insure the goods against any and all risks commonly insured against. Buyer shall name CHA as insured or additional assured and will provide CHA a copy of its insurance policies upon immediate request.
7. Inspection, Complaints & Warranty Conditions
- Upon receipt of the goods, buyer shall be obliged to immediately inspect the goods for defects and deficiencies. Visible defects must be reported to CHA in writing within seven (7) calendar days after the date of receipt of the goods at buyer’s premises. Defects that are not visible upon receipt, must be reported to CHA within seven (7) calendar days after discovery or within seven (7) calendar days after buyer should reasonably have discovered the defects. If buyer does not report within the above stated timelines, CHA will not be able to accept a complaint.
- Small deviations of the goods in measurements, weight, amounts, colours or other small deviations do not qualify as a defect, in line with accepted industry standards.
- CHA warrants production and material faults (that do not qualify as small deviations) for a period of twelve (12) months as of delivery of such goods to buyer, insofar the goods have been used in a normal manner by buyer.
- In the event of warranty claims under this provision, CHA will, at its discretion, only be obliged to repair the defect free of charge, to have the defect repaired, or to make the parts available that are necessary for the repair, or to replace the good concerned. If CHA finds that repair or replacement of the goods is not (or no longer) possible or disproportionately troublesome, CHA will be entitled to credit the price received for the goods concerned, without being liable for any further damages.
- ‘Used in a normal manner’ means the use of the goods for the purpose for which it was intended, including compliance with the instructions for use which accompany the goods and bearing in mind any instructions or guidelines for use given by CHA, as determined at the discretion of CHA. The costs of the components which prove defective and are replaced during the warranty period are included in the warranty, with the exception of components which are subject to normal wear and tear.
- Defects that are the result of normal wear and tear, pollution, inappropriate use, negligence, carelessness, abuse or intentional damage and changes in colour as a result of the use of water, to be judged reasonably by CHA, are excluded from any warranty.
- Goods may only be returned by buyer to CHA subject to CHAs' prior written consent and instructions.
- This warranty is personal can only be transferred by buyer to a third party with the prior written consent of CHA.
8. Force Majeure
- CHA is entitled to invoke force majeure ex article 6:75 of the Dutch civil code, if the implementation of the contract is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably out of its control, including site or building blockades, strikes, specific work interruptions or work-to-rule slowdowns and lockout, delay in the provision to CHA of certain parts or goods ordered from third parties, sickness of its employees, accidents and interruptions of business operations, transport problems, natural disasters, earthquakes, fire and wars.
- In case of force majeure on the part of CHA, its obligations shall be suspended. If the force majeure lasts more than three (3) months, CHA and buyer are both entitled to terminate the non-feasible parts of the contract.
- Limitation of Liability
- All liability of CHA is limited to the warranty obligation as set forth under ‘Inspection, Complaints & Warranty Conditions’, unless in so far as damage result from an intentional act or gross negligence of CHA.
- CHA shall never be liable for consequential or indirect damage, including but not limited to damages and costs resulting from late delivery, damage to other goods of buyer or any third party, damage resulting from incorrect or improper use of the goods by buyer, loss of turnover, loss of profit, loss of goodwill, nor for damage resulting from any incorrect and/or incomplete information supplied by buyer.
- In all cases in which CHA is nevertheless obligated to pay damages, these shall never be higher than, at its option, either the invoice value of the goods delivered, at least the part thereof whereby or in connection with which the damage was caused, or, if the damage is covered by an insurance policy of CHA, the amount that is actually paid out by the insurer with respect thereto. In case of continuing contracts the "invoice value" is the amount charged by CHA for all goods delivered in the period of three (3) months prior to the damage inflicting event, this with the deduction of credited amounts in connection with that period and for those goods.
10. Intellectual Property Rights
- All intellectual property rights, including but not limited to copyrights, model rights and trademark rights with respect to goods delivered by CHA, including but not limited to drawings, calculations, sketches, technical data, know-how and advices, remain with CHA and are not being transferred to buyer, unless and insofar as parties agree explicitly otherwise in writing. Buyer shall refrain from infringements of copyrights, model rights, trademark rights or any other intellectual property rights of CHA.
- Buyer shall not damage the CHA brand or reputation in any way.
- In case intellectual property rights are being created under a contract between CHA and buyer, all such rights will belong to CHA and, in as far as necessary buyer will transfer such rights to CHA and buyer shall in every way co-operate to such transfer.
- Buyer indemnifies CHA against all third party claims with respect to infringement of intellectual property rights insofar such infringement is related to the development, delivery or use of goods that have been developed by CHA according to the specifications of buyer. This indemnity also applies in case CHA amends an existing good according to the instructions of buyer.
- CHA indemnifies buyer against third party claims with respect to infringement of intellectual property rights by a good that has been developed by CHA independently, when CHA has immediately been informed of such claim by buyer in writing and in the event buyer assists CHA in defending its position in any way.
- CHA is entitled to develop and undertake promotional and sales activities and participate in events like sales bazars. In the future, CHA may also develop an online sales channel for the goods.
- Buyer shall treat any information and know-how received from CHA as strictly confidential and this information and know-how shall not be communicated to third parties by buyer without CHA’s prior permission in writing. Nor shall buyer use this information and know-how for any cases other than explicitly provided for in a written contract to which these Delivery Terms apply.
- Each party shall be entitled to terminate the contract with immediate effect if the other party: (i) is granted a temporarily or definite moratorium of payment ('surséance van betaling'); (ii) is declared bankrupt or files for bankruptcy; (iii) acts in breach of the provisions of the contract and after it has not, within a reasonable period, fulfilled its obligations after a notice of default, by written notification; or (iv) has acted in breach of the contract whilst the fulfilment or correction is no longer possible.
- If one of the events referred to in this provision occurs, (i) all claims CHA may have against buyer on whatever basis will immediately become due and payable; and (ii) CHA will be entitled to cancel any order.
- Termination of a contract does not affect in any way the applicability of the provisions on 5. Payment and Security, 6. Retention of Title and Right of Pledge, 7. Inspection, Complaints & Warranty Conditions, 8. Force Majeure, 9. Limitation of Liability, 10. Intellectual Property Rights, 11. Confidentiality, 12. Termination and 13. Applicable Law and Competent Court.
13. Applicable Law and Competent Court
- The relationship between the parties is governed by the laws of the Netherlands.
- The United Nations Convention on Contracts for the International Sale of Goods is not applicable.
- All disputes between the parties will exclusively be submitted for judgement to the competent court in Amsterdam, the Netherlands, unless CHA chooses to bring a dispute before the competent court of the country where buyer is established.