General Conditions of Sale and Delivery of Bugaboo International B.V.
Article 1 General
1.1 These General Conditions of Sale and Delivery, hereinafter referred to as: the “Conditions” of Bugaboo International B.V., hereinafter “BGB”, will apply to all offers of BGB and to all agreements with BGB.
1.2 These Conditions apply both to offline and to online agreements that are concluded with BGB via the B2B portal (hereinafter: “Bugaboo Business portal”) or otherwise.
1.3 Where in these Conditions the term “Buyer” is used, this will be taken to mean any legal entity or natural person, which, in the exercise of a profession or business, has concluded an agreement with BGB, including their authorized representatives as well as their legal successors.
Article 2 Offers and prices
2.1 Any order placed by the Buyer shall only be deemed to be accepted when that order has been confirmed in writing by BGB. Before such confirmation, BGB shall have no obligation to deliver any products to the Buyer.
2.2 BGB may at any time make and implement changes in respect of the products it offers for sale, including changes to the price (including as a result of levies, surcharges or taxes), size or colour, except that such changes shall not apply to any orders already placed by the Buyer in accordance with this Article 2.
2.3 The Buyer can only place orders in writing. In the application of these Conditions, written will be taken to mean orders that have been sent by letter, email or placed via the Bugaboo Business portal.
2.4 BGB reserves the right to cancel or reject an order within 10 days after receipt of an order for any reason, including where the Buyer has not complied with its obligations under this Article 2. In such cases, BGB will not be liable to pay compensation to the Buyer. If the Buyer has already paid for the order, BGB will ensure that this amount is refunded to the Buyer within 30 days of
BGB cancelling the order. BGB will not be obliged to pay interest on amounts already paid.
2.5 All prices are stated in euros, exclusive of VAT and excluding transport costs, unless stated otherwise.
Article 3 Bugaboo Business portal
3.1 The Buyer will receive a unique username and access code from BGB with which it will be able to log in on the Bugaboo Business portal in order to place one or more orders. The username and access code are unique and only valid for the Buyer.
The Buyer will not share its username and access code with, provide it to, and/or transfer it to, any third party or parties.
3.2 If the Buyer makes improper use of the username and access code or makes it available to third parties, in whatever way, BGB will be authorized (without further notification) to deny the Buyer access to the Bugaboo Business portal and to suspend or terminate all current and future obligations (forBGB) without BGB becoming liable to pay any compensation. If BGB terminates all current and future obligations under this Article 3.2 and the Buyer has already paid the invoice for products that have not been delivered, BGB will at its discretion either deliver the relevant products or refund the invoice amount within 30 days after termination into an account to be designated by the Buyer.
3.3 If the Buyer makes improper use of the username and access code or makes them available to third parties, the Buyer will be in default without requiring a further announcement and fully liable to pay compensation.
3.4 In the event of maintenance to the Bugaboo Business portal, BGB will inform the Buyer thereof in time as much as possible.
3.5 Subject to Article 2.4, the Buyer will receive confirmation by email from BGB after an order has been placed via the Bugaboo Business portal.
Article 4 Delivery and delivery time
4.1 Delivery will take place DDP (Incoterms 2010 – DDP). The risk of loss, theft and damage with respect to the products to be delivered will pass to the Buyer at the moment of delivery.
4.2 If the Buyer does not acquire the purchased products at the time indicated by BGB or, as the case may be, at the time agreed, these will remain stored at BGB for the account and risk of the Buyer, without prejudice to the retention of title of BGB (Article 7).
4.3 If the Buyer wishes for the products to remain stored at BGB after the order, BGB will then charge a fee for this service. This storage will also be for the account and risk of the Buyer.
4.4 BGB reserves the right to make partial deliveries. In such cases, each partial delivery will comprise a separate agreement that has been entered into subject to the same conditions as the original agreement.
4.5 The indicated delivery time will not be a strict deadline, unless this has been explicitly agreed otherwise in writing, but rather an indication of the date of delivery. BGB will endeavor to realize the indicated date of delivery based on circumstances applicable to BGB at the time of this indication, but it will not be liable for the (adverse) consequences thereof for the Buyer if the indicated delivery time is exceeded.
4.6 If and to the extent that BGB is able to foresee that a delivery time will be exceeded, it will inform the Buyer thereof without delay. Such instances where the delivery times are exceeded will not oblige BGB to pay any compensation, nor will it give the Buyer the right to terminate the agreement.
4.7 If the indicated delivery time is exceeded by more than 2 months, the Buyer will be required, if it wants to terminate the agreement, to give BGB notice of default by registered letter and to demand that delivery be made as yet within four weeks after the date of said registered letter. If the latter term is exceeded, the Buyer will have the right to terminate the agreement without BGB being obliged to pay any compensation, payment of interest, or any other amount, as a result thereof.
4.8 If the Buyer terminates the agreement in a legally valid manner on the basis of Article 4.7 and the Buyer has already paid the invoice, BGB will refund the invoice amount within 30 days after termination into an account to be designated by the Buyer.
Article 5 Payment
5.1 Unless otherwise agreed in writing between parties, all deliveries to the Buyer will be based on pre-payment (i.e. the Buyer will have to pay in full prior to BGB releasing the products for onward transport arrangements). If the results of a financial check done by BGB or a third party appointed by BGB, prove that the Buyer is sufficiently creditworthy, then a payment period of thirty days (following
the date of the invoice) applies.
5.2 If Buyer fails to comply with its payment obligation within the specified term in this Article 5, Buyer will be in default without a notice of default being required. From that moment on, all outstanding invoices will become due and payable immediately and in full.
5.3 In the event the Buyer does not pay in time, it will owe default interest equal to 1.5% a month.
5.4 If BGB is required to turn its claim over to a third party for collection as a result of the Buyer’s failure, all related costs, such as administration costs, judicial and extrajudicial costs, including the costs of applying for bankruptcy and the fee of the representative or lawyer engaged, will be for the account of the Buyer. The extrajudicial collection costs will amount to at least 15% of the outstanding amount, with an absolute minimum of € 250.
5.5 If BGB is required to turn its claim over to a third party for collection as a result of non-payment, the payments made by the Buyer will first serve to reduce the interest due, followed by the extrajudicial collection costs and subsequently the principal sum turned over for collection and the interest that is yet to fall due.
Article 6 Inspection and complaints
6.1 The Buyer will be obliged to check within two (2) working days after delivery whether the number of products delivered corresponds with the order placed and the dispatch documents. Any deviations must be notified to BGB within two (2) working days and in writing, failing which the delivery may be considered correct and accepted, both factually and at law.
6.2 After delivery, the Buyer will also be required to inspect the products delivered for visible defects and, if any are identified, notify this to BGB within two (2) working days and in writing with a specification and substantiation, failing which the delivery will be considered correct and accepted both factually and at law.
6.3 In the event of hidden defects, the Buyer will have to notify BGB thereof within 48 hours after their discovery, providing a specification and substantiation, failing which the delivery will be considered correct and accepted both factually and at law.
6.4 The Buyer will be required to check BGB invoices and notify BGB in writing of any uncertainties or mistakes within 5 working days after the invoice date, failing which the invoice will be considered correct both factually and at law.
6.5 All other complaints must be notified to BGB in writing within 5 working days after the Buyer has identified a defect, or, at any rate, could have identified a defect. The Buyer will not be able to invoke non- conformity or reject the delivered products after the expiry of this 5 working day period.
Article 7 Retention of title
7.1 The delivery of all products by BGB takes place subject to retention of ownership.
7.2 Until title passes to the Buyer, the Buyer will not be authorized to sell, deliver or otherwise alienate or encumber the products delivered other than in the normal exercise of its business.
7.3 This retention applies to all claims for payment, in respect of the Buyer’s failure in the performance of any agreement(s) concluded with BGB and with respect to services provided and activities performed by or on behalf of BGB for the benefit of the Buyer.
7.4 The retention of title will consequently continue to apply to products already delivered and paid for until BGB receives full payment for other deliveries – both earlier and later –in respect of which payment has become due.
7.5 BGB will be authorized, if the Buyer fails to pay on time, or if there is a well-founded reason to assume that the Buyer will not pay or will fail to pay on time, to take back with immediate effect all products delivered by BGB that have remained the property of BGB in accordance with the previous paragraph. The Buyer commits itself to provide all cooperation, information and access required for recovery.
7.6 The Buyer will store, keep and manage the products, for as long as they are under BGB’s retention of title, with due care and diligence, separately from goods belonging to third parties so that they are readily identifiable as BGB’s property, and will insure them against customary risks of damage (for example, fire, water and theft) for their full price from the date of delivery.
Article 8 Commercial communications and intellectual property rights
8.1 BGB reserves and retains all intellectual and industrial property rights in and to the products it produces, develops and supplies.
8.2 The Buyer undertakes that it will use any BGB intellectual property rights such as, but not limited to, device mark, trademark, trade name, fantasy name or word combination, of which the aforementioned marks or trade names form part, exclusively for the sale of the products.
8.3 The Buyer may only market the products supplied by BGB in their original packaging. The Buyer is expressly prohibited from making any changes to the products supplied by BGB by, for example, packaging or labelling them differently, or by giving them a different name, trade name, or specification. The Buyer will not be allowed to remove or change any device mark, trademark, letter(s),
number(s) and/or indications attached to the product by BGB.
8.4 The Buyer will be authorized to provide the BGB product sold by it with one (1) indication of the Buyer’s trade name (for example by means of a sticker or label that can be easily removed without damaging the product) with maximum dimensions of 3x5 cm and only in places with a hard surface such as a chassis, if and to the extent such does not impair the product itself or the BGB communication used. Indications of the Buyer’s trade name on fabric components, such as covers, foot bags etc. are explicitly not allowed.
8.5 During the term of this agreement, the Buyer will not carry products in its product line that, whether in respect of brand, trade name, model and/or “technical’ specifications or otherwise, infringe the intellectual or industrial property rights of BGB.
8.6 The Buyer will inform BGB immediately in the event that it becomes aware of a possible infringement of BGB’s intellectual property rights.
8.7 The Buyer will not be authorized to act in the name of BGB or to bind BGB in any other way.
8.8 The Buyer is not entitled to offer, show to, or otherwise inform any third party of information, product specifications, images, catalogues, or other data provided by BGB, or to copy such information, product specifications, images, catalogues, or other data provided by BGB, or to use such information, product specifications, images, catalogues, or other data provided by BGB otherwise
than for a purpose for which it was supplied, without the prior written consent of BGB (unless required to do so by law).
8.9 The Buyer may only advertise the brands of BGB in such manner as has been approved by BGB.
8.10 The Buyer must not, during the term of the agreement, make any adverse public statement about BGB, its brands, and its business.
8.11 The Buyer shall indemnify BGB against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, special, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by BGB arising out of or in connection with:
(a) any claim made against BGB for actual or alleged infringement of a third party’s intellectual or industrial property rights, to the extent that such claim arises out of or is in connection with any act or omission of the Buyer, its personnel, agents or subcontractors; (b) the Buyer’s breach, negligent performance or non-performance of its obligations under this Article 8; (c) any infringement by the Buyer of BGB’s intellectual or industrial property rights. If a payment due from the Buyer under this Article is subject to tax (whether by way of direct assessment or withholding at its source), BGB shall be entitled to receive from the Buyer such amounts and shall ensure that the net receipt, after tax, to BGB in respect of the payment is the same as it would have been were the payment not subject to tax. Liability under this indemnity is unlimited.
8.12 BGB reserves the right at any time to make changes to its products and/or services in order to avoid any possible conflict with any third-party rights.
Article 9 Liability
9.1 Subject to Articles 4.8 and 9.7, BGB will not be liable for damage sustained by the Buyer, unless and to the extent the Buyer is able to demonstrate that the situation involves a case of willful intent or gross negligence on the part of BGB.
9.2 Subject to Article 9.7, BGB will never be liable for special, indirect or consequential damage of any nature sustained by the Buyer, including in the event that the Buyer exercises its rights under Article 4.7.
9.3 Subject to Article 9.7, BGB’s liability for damage is explicitly limited to at most the invoice amount, exclusive of VAT, of the relevant order with an absolute maximum of the amount the insurer will pay out in the relevant case.
9.4 If, for any reason, no payment on the basis of the insurance takes place, BGB’s liability for damage, including in the event that the Buyer exercises its rights under Article 4.7, is (subject to Article 9.7) explicitly limited to the invoice amount excluding VAT.
9.5 Subject to Article 9.7, BGB does not accept liability other than for the assembly or installation instructions provided by it.
9.6 Unless the Buyer brings a claim for compensation before the competent court named in these Conditions (Article 11) in respect of an event within six months of the day on which the Buyer became, or ought reasonably to have become, aware of the event having occurred (as opposed to it becoming aware of its having grounds to make a claim in respect of it), BGB shall have no liability
for that event.
9.7 Nothing in this agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, or any other liability that cannot legally be limited or excluded.
9.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this agreement.
Article 10 Force majeure, termination and consequences
10.1 In the event of a situation of force majeure, such as, but not limited to, war or the threat of war, terrorism, riots, strikes, floods, fire, disruptions to or the failure of the supply of energy, government measures or transportation bans, both parties will have the right to suspend their obligations for the duration of the situation of force majeure.
10.2 If the situation of force majeure delays delivery by more than 2 months, both BGB and the Buyer will be authorized to terminate the agreement in accordance with the provisions of Article 4.7.
10.3 BGB will be entitled to terminate the agreement without judicial intervention if the Buyer is declared bankrupt, applies for a suspension of payments, becomes insolvent or otherwise loses the free disposal of its assets or parts thereof.
10.4 The claims the parties have against each other will become due and payable immediately as a result of the termination. The Buyer will be liable for damage sustained by BGB, inter alia consisting of loss of profit and transport costs.
10.5 With the exception of the provisions of Article 4.7, the Buyer will not be authorized to terminate the agreement in relation to any products that have already been delivered.
Article 11 Applicable law and disputes
11.1 This agreement will be interpreted according to and governed exclusively by Dutch law. The United Nations Convention on the International Sale of Goods (the Vienna Sales Convention) shall not apply to this agreement.
11.2 All disputes that may arise between the parties pursuant to or in connection with an agreement that is governed by these Conditions, will be settled by the competent court of The Netherlands.
Article 12 Authentic language and miscellaneous
12.1 If these Conditions are also provided in a language other than the English language, the English version of the present Agreement will, in the event ofdifferences of interpretation, prevail in all circumstances.
12.2 If any of the above provisions is declared invalid or nonbinding or is voided by the courts, the other provisions will remain in force and applicable between the parties. The part that has been declared invalidor nonbinding or the voided provision will be interpreted as much as possible in accordance with the purport of the agreement(s) concluded between the parties and
these Conditions.
12.3 Cross-border transactions may be subject to additional or different conditions that will be laid down separately with the Buyer
Article 13 Data protection
13.1 The parties will at all times comply with all applicable law relating to the processing, protection and use of personal data which, in relation to BGB, includes the GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
Article 14 Confidentiality
14.1 The Buyer shall not at any time during the term of the agreement and for a period of two (2) years after termination or expiry of the agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of BGB, except as permitted by Article 14.2.
14.2 The Buyer may disclose BGB's confidential information: a to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information
for the purposes of exercising the Buyer’s rights or carrying out its obligations under the agreement or these Conditions. The Buyer shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses BGB’s confidential information comply with this Article 14; and b as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 The Buyer shall not use BGB's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the agreement or these Conditions.