GENERAL TERMS AND CONDITIONS MAPLE GROUP
Article 1. Definitions
1. Maple Group: the private limited company Maple Group B.V. (also acting under the name Olvi's), registered at the Dutch Chamber of Commerce under no. 18.104.22.168 with its statutory seat in IJmuiden, The Netherlands, and its office at Hoofdweg 503, (2131 MT) Hoofddorp, The Netherlands, including its successors in title, or, alternatively, any successor by universal title or by singular title and/or any other company affiliated to Maple Group.
2. Buyer: the natural or legal person with whom an Agreement is concluded including its successors in title, or, alternatively, any successor by universal title or by singular title and/or any other company affiliated to Buyer.
3. Offer: any offer or proposal made by Maple Group for the provision of Products and/or the conclusion of an Agreement.
4. Agreement: each and every agreement between Buyer and Maple Group, which includes but is not deemed to be limited to such agreements for the supply, production or design of Products.
5. Products: products, mainly in the area of fashion and fashion-accessories, to be delivered, designed, produced or developed by Maple Group, in the widest sense of the word, and in respect of which Buyer and Maple Group enter into an Agreement.
6. Terms: The present General Terms and Conditions of Maple Group.
Article 2. General
1. The Terms apply to each Offer made by Maple Group as well as to each and every Agreement entered into with Maple Group. A free copy of these Terms will be sent upon request and said Terms have been published on the website: http://www.olvis-lace.com/
2. Any variation to the Terms on the part of Buyer is only applicable insofar as Maple Group has expressly agreed to said variation and done so in writing. Varying provisions are only applicable to the Offer or Agreement to which they pertain.
3. Maple Group has the power to make unilateral changes to the present Terms. The amended Terms are applicable to all new Agreements and Offers with effect from the date of amendment and apply to existing Agreements effective thirty days upon written communication to Buyer of any such change. Maple Group shall give notice of all such changes in writing or by e-mail.
4. In the event that the present Terms stipulate rights or favors for the benefit of Maple Group, then said rights and favors shall equally be deemed to have been stipulated for the benefit of employees, agents, directors, subsidiaries, successors, assigns, affiliates, suppliers, and shareholders of Maple Group and of such third parties as engaged by Maple Group in connection with the formation or execution of the Agreement.
5. The applicability of any general terms and conditions of Buyer or of any third party engaged by Buyer is hereby expressly rejected.
6. Should one or more provisions of these Terms be found to be unlawful, null, void or unenforceable, such provision(s) shall be deemed severable and will not affect the validity and/or enforceability of the remaining provisions of the Terms, which will remain in full force and effect. Maple Group and Buyer shall undertake to agree new provisions to replace those provisions unlawful, null, void, voided or unenforceable, so that there is little departure, if any, in respect of the intention and essence from the void or voided provisions.
Article 3. Offers
1. Any and all tenders, Offers and quotations made by Maple Group are indicative and without obligation and remain valid for fourteen days. Failure to accept said Offer in writing and within that period causes the Offer to lapse.
2. Tenders, Offers and quotations may be subject to alterations due to unforeseen changes in the work.
3. An instruction resulting from an Offer must be confirmed by Buyer in writing. Nevertheless if consent is given by Buyer for Maple Group to commence performance of the work, then the contents of the proposal and/or the Offer shall be deemed to have been agreed. Further oral agreement and provisions are not binding upon Maple Group, unless Maple Group gives written confirmation thereof.
4. If an acceptance deviates (in minor points) from the terms of the Offer, said acceptance is not binding on Maple Group. The Agreement shall not be concluded in conformity with the deviating acceptance, unless Maple Group agrees in writing to said deviating acceptance.
5. A combined quotation does not oblige Maple Group to perform part of the instructions in exchange for payment of a corresponding part of the price quoted.
6. Any tender or Offer made does not automatically apply to future instructions or Offers and Agreements.
7. Any indications of sizes, colors, weights, numbers, parts, fabrics in Offers or Agreements, made orally or in writing, are given with care. However, Maple Group does not guarantee the absence of any deviations from such indications. Therefore, Buyer can not base any claims on said indications. Any shown samples, monsters and color cards are mere examples of products. Buyer can not base any claims on such samples, monsters and color cards.
Article 4. Orders and Agreements
1. Orders (meaning: any assignment by Buyer to Maple Group) are made in writing (meaning for this purpose: by letter, e-mail, fax, text etc.). Only when Maple Group has accepted an order in writing an Agreement is concluded. Maple Group has the right to reject any order (tacitly or explicitly).
2. All Agreements are concluded under the suspensive condition that Buyer has fulfilled all its obligations under previous Agreements/agreements with Maple Group.
3. Any orders or Agreements for the production of custom-made/tailor-made Products cannot be cancelled. Any other orders and/or Agreements may only be cancelled by Buyer without it being liable for any damages to Maple Group within five days after conclusion of an Agreement or after receiving an order confirmation. If Buyer cancels an order or an Agreement after said five days, Buyer shall liable to pay Maple Group the full amount due according to the Agreement.
4. Maple Group has the right to unilaterally and without prior notice change the number of Products to be produced, designed or delivered without it being liable for any damages towards Buyer. In such case Maple Group will (pro rata) refund any payments already made by Buyer.
Article 5. Delivery
1. Delivery of Products are done under ICC Incoterm 2010 EXW (Amsterdam) conditions and takes place the moment the Products are offered to Buyer. The risk (e.g. for loss, theft, annihilation, etc.) is transferred to Buyer at the moment of shipping. Buyer bears all costs (including insurance) of shipment.
2. Buyer is (without prior notice) in default when delivery has proved impossible. In such case, Buyer will compensate Maple Group for all losses. Maple Group may store the Products at the expense of Buyer, notwithstanding Buyer’s obligation to pay.
3. Maple Group has the right to deliver the products and Products in consignments. Buyer may not suspend its payment obligations in case of delivery in consignments.
4. Any indications of a term of delivery shall never be considered to be final.
5. When Maple Group depends on information, materials and/or documents (‘Information’) to be delivered by Buyer for the execution of the Agreement, the term of delivery shall commence only after Buyer has provided Maple Group with the Information. When Maple Group depends on Information to be delivered by third parties for the execution of the Agreement, the term of delivery shall commence only after said third parties have provided Maple Group with the Information.
Article 6. Prices and payment
1. All prices are always in Euros and excluding VAT, any other taxes or charges.
2. All prices are based upon the costs of materials and circumstances (e.g. regulations, wages, costs of raw materials, excise, currency ratings) at the moment of conclusion of the Agreement. Maple Group has the right to change the agreed prices if these costs and/or circumstances change to the disadvantage of Maple Group. Maple Group shall inform Buyer of such change in writing.
3. Maple Group has the right to demand a full or partial down payment and all Agreements are concluded under the suspensive condition that Buyer is sufficiently creditworthy, to be assessed by Maple Group or its debtor-insurance company.
4. If no down payment has been demanded, Maple Group shall send Buyer timely an invoice for the Products and payment of the sums due by Buyer must be done utterly before delivery of the Products. Notwithstanding the foregoing: all invoices must – in any case - be paid within thirty days after the date of the invoices. Upon exceeding a term of payment Buyer is, without notice of default being required, liable to pay default interest commencing on the due date at the rate of 10%, unless the statutory trading interest rate is higher, in which case the statutory interest rate applies. Interest on the exigible amount shall be calculated from the date upon which Buyer is in default until such time as payment is made in full. Interest at the above rate is calculated per month or part thereof. In case of the above Buyer is also obliged to reimburse the actual judicial and extrajudicial costs incurred by Maple Group, with a minimum of 15% of the amount due.
5. Payments made by Buyer will first be applied to settle any outstanding interest and costs and subsequently for those invoices that have been due for payment for the longest time, even if Buyer stipulates that the payment relates to a later invoice. Maple Group may, without being in default, refuse an offer of payment in the event that Buyer indicates a different order of allocation.
6. Insofar as a Buyer fails to make any payment, or fails to pay in full or on time, Maple Group is entitled to terminate the Agreement with immediate effect, without being liable for any compensation whatsoever. Insofar as Maple Group has performed demonstrable work with respect to the (preparation of the) performance of the Agreement, Buyer is obliged to reimburse Maple Group for said work in full.
Article 7. Conformity, warranty and complaints
1. Maple Group endeavors to warrants that its Products are in conformity with the Agreement and are fit for the agreed purpose at the moment of delivery. Notwithstanding article 3.7, any sector-specific deviations (such as in sizes, colors, weights, numbers, parts, fabrics) between the delivered Products and the Agreement shall not be deemed faults.
2. Buyer is under the obligation to verify that the correct amount of Products has been delivered, that the Products are free of faults, immediately after delivery and in any case within five days. Any complaints must be made in writing (letter, e-mail or fax) and must be received within seven days after delivery. Furthermore, the complaint(s) must contain an exact description of the defects (including clear photographs of the defect(s)), the product name, color, size, serial number (if applicable), and a copy of the relevant invoice. Failure to make complaints in time and/or in the specified way will result in forfeiture of any rights. Maple Group does not warrant the conformity of Products and fitness for the agreed purpose after the aforementioned seven day term. In case Buyer makes any complaints, Buyer may not suspend or setoff its payment obligations.
3. Maple Group is not under the obligation to act on complaints which have been received after the aforementioned seven day term.
4. Buyer will make maximum efforts to co-operate in the investigation of the complaints by Maple Group. More specifically, Buyer will send all defect products/Products at its own cost to Maple Group upon first request by Maple Group. Buyer may not return any products/Products to Maple Group without prior written consent by Maple Group. Maple Group is not under the obligation to investigate complaints if Buyer refuses to co-operate. Such refusal will result in forfeiture of any rights.
5. The investigation of complaints by Maple Group does not constitute any waiver of rights by Maple Group and/or any acknowledgement of liability or faults in the Products.
6. Only if the complaints are justified and are made in accordance with this article, Maple Group bears the costs for returning the Products to Maple Group. In case of justified complaints, Maple Group’s liability is limited as specified in article 13.
7. Maple Group will decide to its own discretion, within thirty days, whether the complaints are justified or not and it shall notify Buyer in writing. This thirty day term may be extended if Maple Group deems such extension necessary.
8. In case of justified complaints, Maple Group shall (to its own choice) (i) replace the Products with identical or similar new Products (or replace certain parts of the Products – if possible), or (ii) shall repair the Products, or (iii) shall give a refund. By executing either one of these remedies, Maple Group has repaired its breach of contract and is not under any further obligation to pay damages.
9. Buyer waives any rights mentioned in this article and any statutory rights by (i) making any repairs or alterations to the Products by itself or (ii) have any third party make such repairs or alterations, (iii) by using the Products for purposes they we’re not intended for, (iv) or by any other maltreatment of the Products, without the prior written consent of Maple Group.
10. Any errors and faults in the Products caused by normal wear and tear, or any other circumstances not relating to the production of the Product do not fall within any warranty made by Maple Group and Maple Group is not liable for these faults.
11. Any warranty made by Maple Group for Products which Maple Group has acquired from any third party is restricted to the extent the third party has given Maple Group any warranty and to the scope of this warranty.
12. In case of repair or replacement of any Product, the term of warranty of the originally delivered Product remains in force.
Article 8. Retention of title
1. Maple Group supplies all Products explicitly subject to retention of title, as long as Buyer has not fulfilled all its (payment-)obligations for the entire delivery. Transfer of ownership shall take place only after Buyer has made full payment to Maple Group for the entire delivery.
2. Before the transfer of ownership has taken place, Buyer is not authorized to pledge or dispose of the Products; however, Buyer is authorized to sell the Products to consumers.
3. Maple Group may – until full payment has been made – at any time confiscate all Products, wherever they have been stored. Buyer is under the obligation to inform Maple Group upon first request of the whereabouts of the Products and Buyer shall grant Maple Group direct access to these Products.
4. In case of bankruptcy, suspension of payments, or seizure or attachment on the Products which are under control of Buyer, Buyer shall immediately notify Maple Group of such event and shall immediately notify any third party, its bailiff, endorsee, lawyer, curator or enforcement agent of the retention of title made by Maple Group.
5. If Buyer fails to fulfill any obligation under the Agreement, Maple Group may immediately invoke its retention of title and confiscate all Products, notwithstanding any other rights of Maple Group.
6. Buyer may not invoke any right to retention relating to the Product because of storage costs and Buyer may not deduct or setoff these costs (or any other costs) with its payment obligations.
Article 9. Intellectual and industrial property
1. The Agreement does not imply (implicitly or explicitly) (i) any transfer of rights of intellectual and/or industrial property, or (ii) any granting of license to such rights. Any rights (such as intellectual property rights) to drawings, sketches and models remain or (if made by Buyer: become) the sole property of Maple Group (and as far as necessary are hereby transferred to Maple Group).
2. Maple Group states that its Products to the best of its knowledge do no infringe upon any intellectual and/or industrial property right of third parties. However, in case of any third party claims of infringement of any intellectual and/or industrial property rights, Maple Group may alter the Products and/or (partially or entirely) terminate the Agreement.
3. Buyer may not use Maple Group’s trade name(s) and trademark(s) (including any domain names), similar trade names and trademarks or deviations to these trade names and trademarks without the prior, explicit, written consent of Maple Group.
4. Buyer may not remove, copy or otherwise alter any trade names, trademarks, names, marks, signs, character, number or any other indication applied to the Product by Maple Group.
5. Buyer shall not sell or have in stock any third party products that are similar to Maple Group’s Products and/or may infringe upon the Products.
6. Any promotional materials supplied to Buyer by Maple Group remain the sole property of Maple Group and may at any time be reclaimed by Maple Group, even if Buyer has made a (financial or creative) contribution to the promotional materials.
7. Buyer shall notify Maple Group immediately of any third party claims of infringement upon any rights. In the event of such a claim, only Maple Group or a qualified subcontractor of Maple Group is entitled to act against Buyer or to defend such claim in and outside of court and/or entitled to settle the claim with this third party in amicably way. In all cases, Buyer guarantees to assist Maple Group (and/or its designated subcontractor) to its full potential on its first request and at its own risks and costs.
8. If Buyer breaches any stipulations of this article 9, Maple Group is entitled to a penalty immediately due and payable, which is not subject to judicial mitigation, of EUR 10.000 for each time and/or each day (or part thereof) Buyer breaches the stipulations, notwithstanding the right of Maple Group for full compensation.
Article 10. Sell of Products and advertising
1. Buyer may only sell the Products to consumers or retailers.
2. Buyer may not make any promotions or advertisements for the Products (online or offline) without the prior written approval of Maple Group.
3. Buyer may not give away Products for free or use the Products in promotional campaigns (such as promotional games).
Article 11. Termination and suspension
1. Buyer is immediately and without prior notice in default by the mere fact that it fails to fulfill its obligations arising out the Agreement and these Terms in full, timely and/or correct. Notwithstanding any other rights, Maple Group may in such case suspend all its obligations towards Buyer, even if these obligations arise out of other Agreements. Furthermore, Maple Group may setoff and/or deduct any damages with payments made by Buyer, even if these relate to other Agreements.
2. Without prejudice to its legal powers, Maple Group is entitled to entirely or partially, and immediately terminate this Agreement and without judicial intervention, without prejudice to the right to reclaim any amounts which have already been paid and/or to claim indemnification, in any case if:
a. Buyer fails to fulfill its obligations;
b. Buyer has applied for or been assigned suspension of payment and/or bankruptcy;
c. Buyer, whether voluntarily or not, enters into liquidation and/or makes an assignment for the benefit of creditors, or if an event or situation arises which is comparable to one of the aforementioned events or situations;
d. Buyer ceases its operations; and/or
e. An event occurs which does not justifies the continuation of the Agreement.
3. In the event that a situation as described afore arises, all liabilities towards Maple Group shall be immediately and entirely claimable and Maple Group shall be entitled to, at its own choice, without any liability for indemnity or other compensation and without prejudice to the further rights that belong to Maple Group, hold in abeyance the execution of the Agreement and/or the entire or partial dissolution of the Agreement.
4. Notice of dissolution and/or termination shall be served in writing by registered letter to Buyer.
5. Immediately upon termination of this Agreement, Buyer is obliged – at its own expense – to return to Maple Group all Products, promotional materials, property and works of Maple Group.
6. Buyer may not terminate or cancel the Agreement, or give notice, notwithstanding article 4.3.
7. If Maple Group has concluded an agreement with a third party for the supply of certain materials, goods or products in order for Maple Group to be able to produce and deliver the Products to Buyer, Maple Group may terminate the Agreement in accordance with paragraph 2 of this article in case the third party supplier breaches its agreement with Maple Group or if that agreement is terminate or ended, for whatever reason.
Article 12. Force majeure
1. If, as a result of force majeure (which includes, but is not limited to the following circumstances: strike, industrial action, fire, floods, storms, loss/annihilation of products at transport, water damage, delay in delivery of goods or materials by third parties, boycott, war, acts of terror, etc.) Maple Group is unable to perform or is in breach of its obligations hereunder, Maple Group may extend the term for delivery with a period equal to the duration of the force majeure plus thirty days or cancel the Agreement (partially or entirely). In case of force majeure, Maple Group shall notify Buyer within fourteen days which applies. If Maple Group cancels the Agreement, it shall refund any payments already by Buyer, with deduction of costs already incurred and/or Products already delivered by Maple Group.
2. If, as a result of force majeure Maple Group is unable to perform or is in breach of its obligations hereunder, Buyer is not entitled to any damages, not even if Maple Group may have any (financial) advantages of the force majeure.
Article 13. Limitation of liability
1. Maple Group shall not be liable for any faults in the Products, notwithstanding article 7 and article 3.7. Furthermore, Maple Group shall have no liability for any loss of profits, any other loss, damage arising from any delays in delivery, and/or any action by third parties taken against Buyer with respect to any (alleged or justified) infringement of such third party’s rights.
2. The liability of Maple Group for any damages is in any case limited to the amount of the last invoice sent by Maple Group; in case of termination of the Agreement by Buyer – insofar as that is possible – shall the amount of damages paid by Maple Group to Buyer also deem to include any obligation to undo.
Article 14. Confidentiality
1. Buyer shall hold in the strictest confidence all information about Maple Group, including but not limited to its strategies, designs, patterns, sketches, samples, monsters and the Maple Group Products (including but not limited to prices, methods of production, faults, errors) and the underlying Agreement, and shall provide related information to its employees or suppliers only if, and to the extent in which, this is deemed necessary for the execution of the Agreement. Buyer shall not ever disclose, provide to third parties for inspection or use, or use for the benefit of third parties, any of this information for the term of this Agreement and for a period of three years after termination thereof.
2. Buyer shall refrain from communicating any negative, false, untrue and harmful statements, messages, speech etc. about Maple Group, now and in the future.
Article 15. Miscellaneous
1. Maple Group may assign its rights and its obligations under the Agreement and these Terms, in whole or in part, to any third party at any time without prior notice. Buyer may not assign the rights and obligations under, in whole or in part, to any third party without the prior written consent of Maple Group.
3. The Agreement and these Terms are subject to the laws of The Netherlands, and all disputes arising out of or in relation to the Agreement and these Terms shall be submitted to the exclusive jurisdiction of the courts of Amsterdam, The Netherlands.
4. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from the Agreement.