General Terms and Conditions
DG Europe B.V. / DG Supply B.V. / DG Trading B.V.
De Langeloop 12-1
These are the general terms and conditions of the DG group companies, consisting of DG Supply B.V., DG Europe B.V. and DG Trading B.V.
Version 2.0, 2021
Article 1 Definitions
1. Confidential Information: all information that is designated as confidential, or which the receiving party must reasonably understand to be confidential in nature.
2. DG: the company it concerns, either DG Supply B.V. and/or DG Europe B.V.
3. DG Europe B.V.: the company located at the Langeloop 12-1(1742 PB), Schagen, The Netherlands, and registered with the Dutch Chamber of Commerce under file number 75187760.
4. DG Supply B.V.: the company located at the Langeloop 12-1(1742 PB), Schagen, The Netherlands, and registered with the Dutch Chamber of Commerce under file number 74008137.
5. DG Trading B.V.: the company located at the Langeloop 12-1(1742 PB), Schagen, The Netherlands, and registered with the Dutch Chamber of Commerce under file number 60968257.
6. Intellectual Property Rights: patent rights, copyrights, trademark rights, design rights, model rights and/or other (intellectual property) rights, including technical and/or commercial know-how, methods and drafts, whether patentable or otherwise.
7. The Other Party: you, the party who, as buyer, principal, hirer or in any capacity whatsoever, acting inside their business or professional activities, engages in a (possible) transaction with DG.
Article 2 Application
1. These General Terms and Conditions are applicable to all offers or acceptances of DG, contracts and agreements between the Other Party and DG, and to the delivery of goods by DG. These General Terms and Conditions are also applicable to all legal relationships between the Other Party and any party affiliated to DG, such as subsidiary, sister or parent companies. In that case in these General Terms and Conditions DG is taken to be that affiliated party.
2. No General Terms and Conditions of the Other Party are applicable or binding on DG.
3. Any derogation from the present terms and conditions is permissible only in so far as it is expressly agreed in writing. Terms and conditions from which there is no written and express derogation remain fully in force.
4. In the event of inconsistencies, the following ranking applies:
a. written agreed adjustments or additions to the agreement;
b. the accepted offer or any other written agreement between parties;
c. these General Terms and Conditions.
5. If one of the provisions of these General Terms and Conditions is null and void, a provision that resembles as closely as possible the null and void provision and that is considered valid will be deemed to have taken its place. The same applies to provisions that DG is unable to invoke for other reasons.
Article 3 Agreement
1. All offers by DG are without obligation. DG is not obliged to accept an acceptance of the offer, but if DG proceeds to do so, the offer will be considered accepted.
2. If any reservation to, or any alteration of the offer is made in the acceptance, then the agreement will only become effective if and when DG confirms in writing to the Other Party that it agrees to this derogation from its offer. In deviation from the provisions of Article 6:225 Paragraph 2 of the Dutch Civil Code, DG is not bound by a deviating acceptance of the offer made, when the deviation concerns minor aspects of the offer.
3. The Other Party shall provide at DG’s request, all reasonable cooperation and provide all information and materials that DG states are required for the execution of the agreement. In the event of private label products, the Other Party shall provide the designs needed and shall cooperate in recording the requirements and specifications for the goods needed, first. DG will try its best to comply to these designs. However, colors and prints may deviate from the PMS colors of the color print.
4. DG is authorized at all times to have this agreement performed by third parties.
5. DG has the right to transfer, without permission being required, its rights and obligations from the agreement to a parent, sister, subsidiary or third party that takes over the services or the relevant business activities from DG. DG shall inform the Other Party if such a transfer has taken place.
Article 4 Duration and termination
1. Both parties can terminate the agreement in writing, without due observance of a notice period. The remaining ordered goods will be delivered by DG and paid for by the Other Party as agreed.
2. DG may immediately suspend, terminate or dissolve the agreement in writing, without a notice of default being required, and without being obliged to pay any compensation for any form of loss and/or damage, notwithstanding the right of DG to full compensation from the Other Party for costs and loss and/or damage, if:
a. the Other Party acts contrary to the agreement or the applicable laws and regulations and/or does not, not fully or not timely, fulfill its obligations towards DG;
b. the Other Party refuses to pay in advance or provide sufficient security should DG so demand;
c. the Other Party has applied for or has been granted bankruptcy, the Other Party has requested or has been granted suspension of payment;
d. the business activities of the Other Party are being terminated, or the business of the Other Party is being liquidated, or is transferred
3. In the event of suspension by DG, DG retains its claims under the agreement and the applicable laws and regulations. In the event the agreement is terminated, DG’s claims against the Other Party are immediately due and payable.
4. DG is in the cases of suspension, dissolvement or termination entitled at all times to demand compensation from the Other Party as well as to take back any goods supplied.
5. In the event that the Other Party wishes to end or dissolve the agreement for any reason whatsoever, he will first always give DG prior written notice of default, and allow a reasonable period of time for this in order to enable DG to fulfill its obligations, or to rectify shortcomings, which shortcomings the Other Party must specify precisely.
6. Termination as referred to in this article will not terminate the rights of DG, which in view of their nature are intended to continue in force. For example, Intellectual Property Rights and confidentiality.
Article 5 Prices and rates
1. Unless expressly indicated otherwise, prices are quoted ‘ex works’, in Euro’s and exclusive of turnover tax and other government levies.
2. In case the price is based on information provided by the Other Party, and this information appears to be incorrect, DG has the right to amend the price accordingly, even after the agreement has come into effect.
3. DG is entitled to increase the agreed price pro rata with the reason, with immediate effect, if one or more of the following circumstances occur after the conclusion of the agreement:
a. increases in exchange rates;
b. an increase in the costs of raw materials, materials, semi-manufactures or services that are necessary for the performance of the agreement;
c. increase in dispatch costs or transport;
d. introduction of new and/or increase in existing government levies, import and export duties or other levies and/or taxes in the Netherlands and abroad; or,
e. in general, such circumstances as are comparable to any of the above.
4. Trade discounts given by DG apply only to orders with a gross value (excluding turnover tax) higher than a particular threshold to be determined each time by DG.
Article 6 Payment
1. DG is entitled to invoice in advance and electronically.
2. Every supply, including supply of part of a combined order, can be invoiced separately if part of a combined order is separately of value.
3. Unless agreed otherwise, payment of the purchase price or remuneration for which DG provides a performance should be made within 30 days of the date on which the goods sold are sent to the Other Party, and will then be claimable, without deduction of any discount, compensation or set-off against any (other) claim which the Other Party may have on DG.
4. If DG has two or more claims on the Other Party, then a payment by the Other Party will be used first of all to pay off any costs that may be owed, subsequently the interest and thereafter the oldest claim, regardless of which claim or which component the Other Party designates.
5. If the payment period is exceeded, then the Dutch statutory interest for commercial transactions will be owed from the due date, without any notice of default or additional period of time of reasonable length for performance being necessary, together with reimbursement of any judicial and/or extra-judicial costs incurred in collecting the claim, subject to a minimum of €40,00 irrespective of whether those costs have actually been incurred. Judicial costs include all costs for the collection of the claim, such as the costs of seizure, litigation costs and the costs of an application for bankruptcy.
6. Before making delivery or continuing the delivery or (otherwise) starting performance of the agreement, DG is entitled to require sufficient security for the prompt fulfillment of the payment obligations of the Other Party.
7. The Other Party hereby grants DG in advance a right of pledge on all property that may be transferred to the control of DG by the other party within the framework of the agreement, as additional security for everything which the Other Party, in any capacity and on any grounds whatsoever, may owe to DG, including non-claimable and conditional debts.
Article 7 Delivery
1. Any (delivery) periods announced by DG or agreed between parties are indicative and do not constitute a deadline. DG is permitted to differ from specified quantities and delivery times.
2. DG will be entitled to designate the carrier of the goods sold or other goods to be supplied. The costs of carriage will be borne by the Other Party, unless agreed otherwise.
3. From the time of delivery at the agreed place the delivered goods fall fully to the account and risk of the Other Party. In the event that the Other Party designates a carrier and the choice of this carrier is not offered by DG, the risk passes to the Other Party at the time of receipt of the goods by the carrier.
4. The Other Party is obliged to co-operate fully in the delivery. The Other Party will be in default, even without a warning to this effect, if he does not collect goods to be delivered after the first request of DG, or refuses to take receipt of goods to be delivered. If DG delivers the goods before the date fixed, the Other Party may not refuse to take delivery. The report by the carrier will always serve as full proof of the offer of delivery.
5. A(n) (partial) exceeding of the delivery deadline does not entitle the Other Party to terminate all or part of the agreement and/or to claim compensation, unless the Other Party can prove deliberate intent or willful recklessness on the part of DG.
6. If the goods cannot be transported to the destination due to a cause independent of DG, DG has the right to store or have them stored at the expense and risk of the Other Party and to demand payment as if the delivery had taken place.
7. All goods supplied or yet to be supplied by, on behalf of or for the account and risk of DG under the terms of any agreement whatsoever remain the exclusive property of DG until the moment the Other Party has complied with all obligations arising from the agreements, including all claims relating to the consideration for goods supplied or yet to be supplied by DG or claims in respect of penalties, interest and costs.
8. Performance by DG will in any event be deemed to be sound if the Other Party has used supplied goods or part thereof, or has treated or processed them, supplied them to third parties, or has caused them to be used, treated or processed or supplied to third parties.
9. Despite the retention of title, the goods delivered will be retained by the Other Party at its own risk and expense. Until the Other Party acquires the goods in property, the Other Party is required to keep the goods delivered by DG separate from other goods and to store them clearly identified as the property of DG, and to insure them and keep them insured properly, and also not to proceed to process or use these goods.
10. To provide for the eventuality that the right of ownership of DG is lost because the goods are used in the creation of new goods, amalgamated with other goods, become a component of other goods or otherwise, the Other Party hereby transfers in advance the ownership or co-ownership of the new goods thus created to DG in proportion to the invoice value. The Other Party will from then on act free of charge as holder and depositary of the relevant goods to which DG accrues ownership or co-ownership.
11. If the Other Party is in default, then DG will be entitled to claim the goods immediately from anyone holding them. The Other Party hereby gives its unconditional and irrevocable permission for DG or a designated third party to enter premises where the goods of DG are being kept and to take them back. The costs of taking and/or handing back the goods will be charged to the Other Party.
12. The Other Party is aware that certain transactions and goods of DG may be subject to export or import control laws and regulations. The Other Party hereby guarantees that it will comply in all respects now and in the future with the current and future export and import control legislation as well as the associated restrictions and permits. In addition, the Other Party shall impose export restrictions on third parties in the event of re-export or transfer of DG’s goods to such third parties.
Article 8 Intellectual Property Rights
1. The Intellectual Property Rights on all materials and goods DG supplies, provides, develops or makes available under the agreement rest with DG or its licensors, unless explicitly agreed otherwise in writing.
2. DG reserves the right at all times to the Intellectual Property Rights in respect of everything that it has supplied to the Other Party, and in respect of everything connected directly or indirectly with it. The Other Party shall therefore respect the trade name, mark or any other Intellectual Property Right of DG and shall not use them or the name of DG with the intention of associating with DG, without the express written consent of DG.
3. The Other Party only acquires the rights of use and powers that are explicitly granted in writing and for the rest, the Other Party will not reproduce or make public the Intellectual Property Rights of DG.
4. The Other Party is not permitted to remove or change any indication of Intellectual Property Rights of DG on the goods or its packages. Even when the goods are resold under the name and at risk of the Other Party, unless otherwise agreed.
5. When goods are developed for the Other Party in connection with customized goods or private label goods, the Other Party is provided, subject to compliance with its payment obligations under the agreement, a perpetual, non-exclusive, non-transferable and non-sublicensable user right for the agreed purpose of those goods, unless otherwise agreed in writing. In the event of a violation of this provision, DG is entitled to revoke the license with regard to the goods.
6. All Intellectual Property Rights with regard to materials and information supplied by the Other Party remain with the Other Party. DG will only receive the rights to these materials to the extent they are required for the execution of the agreement. The Other Party indemnifies DG against all claims from third parties with regard to the use of materials and information provided by the Other Party.
7. DG hereby grants the Other Party a license to disclose the trademarks (as well as the associated documentation and promotional materials) to third parties for the purpose of promotion and demonstration of the ScrewMagnets and Qblades, as well as for the purpose of supplying the goods to third parties. As soon as the Other Party stops selling ScrewMagnets and Qblades, it’s right to use the trademarks ends.
8. DG is permitted to use the (trade and brand) name and distinguishing marks of the Other Party for promotional purposes.
Article 9 Distribution
1. The Other Party may actively sell and deliver ScrewMagnets and Qblades purchased from DG to third parties and consumers in its country of residence, in its own name and for its own account. If and insofar the Other Party wishes to actively promote and resell to parties outside its country of residence, the Other Party will first consult DG to discuss possibilities, for DG made exclusive agreements with other parties.
2. The Other Party is not entitled to any commission. In the relationship with the end-customer, the Other Party acts at his own expense and risk.
3. The Other Party will take care of all authorizations required by any governmental authority in connection with the sale and distribution of the goods in his sales territory. The sale or installation of goods outside the Netherlands may be subject to restrictions and will be fully at the risk of the Other Party. The Other Party indemnifies DG against all possible damage and costs in this connection.
4. The Other Party is obliged to inform the end-user or have them informed that the goods must be handled with care and that the goods can only be connected to the equipment intended for that purpose.
Article 10 Confidentiality
1. DG and the Other Party shall keep Confidential Information strictly confidential and only use it to the extent that this is necessary for the execution of the agreement.
2. Parties also impose the obligations described in this article onto their employees and, if applicable, onto third parties to whom the Confidential Information has been provided.
3. The obligation of confidentiality does not apply in the case of information that:
a. is or becomes generally accessible to the public for reasons other than disclosure by the receiving party in violation of the agreement;
b. was already in the possession of the receiving party before it was made known to it by or on behalf of the supplying party;
c. is made available to the receiving party on a non-confidential basis by a source other than the supplying party; or
d. has been independently developed by the receiving party.
Article 11 Warranty
1. Samples are provided merely by way of an indication.
2. DG shall deliver the developed goods to the Other Party if, in their professional opinion, they meet the predetermined requirements and/or are suitable for normal use.
3. Following delivery by DG, the Other Party will check within two calendar days whether DG has properly fulfilled the agreement and will notify DG in writing immediately if he finds that this is not the case. Defects, which could not reasonably have been detected within the above-mentioned period, must be reported immediately after discovery and at the latest within seven calendar days after delivery. If the goods do not conform to the agreement, the Other Party is not entitled to change the price at its own discretion.
4. After discovering any defect, the Other Party is obliged to immediately discontinue the use or installation of the goods concerned. The Other Party will provide all cooperation desired by DG for the investigation of the complaint, including by giving DG the opportunity to conduct an investigation on site into the circumstances of installation and/or use.
5. In the event of non-conforming goods, DG will always be entitled to replace such goods with new goods that are sound or, at the discretion of DG, to reimburse the difference in value between a sound performance and the performance actually supplied. Fulfillment of the agreement will then be deemed to be fully sound. In this case the Other Party may not dissolve the agreement.
6. Any given warranty does not apply if the Other Party or third parties have performed work on the goods supplied, further treated or processed them or stored them without due care and, in general, in all cases in which the Other Party acts without the care that DG is entitled to expect of an attentive and careful other party. DG will assess whether there is non-conformity on the basis of photos and the description of the Other Party.
7. Any given warranty will also not apply if it transpires that the goods supplied are not used in accordance with the directions for use supplied on commissioning or are not used for the purpose for which they were bought. No guarantee does apply if a defect is the result of incompetent use, carelessness, incorrect installation or incorrect tests with the goods, attempts at repairs not permitted by DG, unauthorized changes to or use of the goods or if the defect is the consequence of abnormal use of the goods or was exposed to fire or another accident or abnormal condition.
Article 12 Liability and fines
1. In the event of non-compliance by the Other Party with the obligations for confidentiality, agreed non-competition, conditions for distribution, or Intellectual Property Rights, and in particular, deliberately misusing DG’s trademark, the Other Party will owe DG an immediately due and payable penalty of €15,000 without prejudice to DG’s right to claim compensation instead, if the actual damage suffered exceeds the penalty payable by the Other Party. After the expiry of one working day after DG has notified the Other Party of an infringement, the Other Party will also owe a fine of €1,000 euros per day that the infringement has not been terminated.
2. DG is not obliged to pay compensation as a consequence of failure in fulfillment of any obligation or as a consequence of an unlawful act if it cannot be imputed to DG. In such a case the Other Party cannot dissolve the agreement.
3. DG is only liable to the Other Party for direct damage as a result of an imputable failure to comply with this agreement. DG’s liability for indirect damage is excluded. For the purposes of this agreement, indirect damage is understood to mean: loss of profit, broken equipment on which or in which the goods are attached, missed savings, reduced goodwill, damage related to the use of supplied goods by end-users and damage due to business interruption.
4. Without prejudice to the above and to the limitations stated in Article 74 CISG, DG’s annual liability for direct damage is limited to the amount (excluding VAT) the Other Party has paid to DG pursuant to the agreement(s) during six months prior to the event that caused the damage. DG is in no way liable for any amount higher than the amount paid out by its insurer for the specific event(s), plus the deductible.
5. Any limitation of liability agreed between parties shall lapse if and to the extent that the damage is the result of intent or willful recklessness on DG’s part, or if the imputable failure of DG directly results in death or serious injury.
6. A condition for the existence of any right to compensation is that the Other Party reports the damage to DG in writing within 30 days after discovery.
Article 13 Force Majeure
1. Force majeure is described as, but is not limited to, events such as power outages, internal disturbances, terror, consequences of terrorism, strikes, molest, theft, staff shortages, import and export barriers, stagnation in the supply chain, fire and floods, war or risk of war, a pandemic, extreme or unexpected stagnation of traffic, obstruction of the transport route, (mandatory) disruption of the business of DG or in that of one of the suppliers or third parties involved in performing the agreement, breakdowns of machines used by DG or third parties involved, extreme or unexpected relapse in the supply of parts, government measures.
2. DG cannot be required to fulfil any obligation under the agreement if fulfilment is prevented as a result of force majeure. Furthermore, DG cannot be held liable for any damage that results from this.
3. If as a consequence of a situation of force majeure, DG cannot be reasonably expected to meet its delivery obligations, it will be entitled to postpone delivery for a period of time equal to the continuation of this force majeure or other circumstances of a similar nature.
4. After the force majeure has lasted for more than 3 months, both the Other Party and DG may terminate the agreement in writing immediately, or solely that part of the agreement that has not been fulfilled yet. Parties do not have any right to compensation as a consequence of the termination or damage incurred.
Article 14 Amendments
1. DG reserves the right to amend the agreement, including these General Terms and Conditions, at any time.
2. Amendments of minor importance, amendments that are necessary due to changed laws and regulations, and amendments that are to the advantage of the Other Party, can be implemented by DG without prior notice. In the event of such amendments, the Other Party does not have the right to object and/or terminate the agreement.
3. All other amendments will be notified to the Other Party by email and will enter into force at least one month after the date of notification.
4. If an amendment to the agreement announced by DG negatively influences the position of the Other Party, the Other Party may object to this in writing, stating the reasons. In the event of an objection, DG may reconsider the amendment and decide to withdraw it in whole or in part. If DG decides to implement the amendment despite the objection of the Other Party, the Other Party has the right to terminate the agreement at the latest on the date upon which the amendment comes into effect. If the Other Party does not object to the proposed amendment within one month after DG has provided notice, the Other Party is deemed to have agreed to the amendment.
Article 15 Jurisdiction and application of Dutch law
1. Quotations, offers, acceptances and (performance of) the agreements are governed by the Dutch law.
2. The UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 (Dutch Treaty Series 1986, 61) does not apply to the agreement. However, insofar the provisions in the agreement (including these General Terms and Conditions) differ from those stated in the CISG, the provisions in the agreement prevail and is hereby expressly excluded.
3. If the Other Party foresees or should reasonably foresee that DG or its goods will fail to comply with one or more of its obligations in countries outside the Netherlands, the Other Party is required to inform DG of this in writing immediately, giving reasons and the likely duration of this breach.
4. In the event of a dispute, the parties will first try to reach a solution together. If the parties do not come to a joint solution, all disputes, including those concerning the applicability of the present General Terms and Conditions, arising from or related to the agreement shall be submitted to the competent Court in the judicial district in which DG has its registered office.