General Terms and Conditions for non-consumersof
Milk Design B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, whose registered office is at Distelweg 89 1031 HD Amsterdam, the Netherlands ("Milk Design").
For the purpose of these General Terms and Conditions, the following terms shall have the following meanings:
"Agreement" means any agreement between the Parties, including but not limited to the agreements for the sale and delivery of Products by Milk Design, any addition thereto or modification thereof, as well as all (legal) acts for the purposes of negotiating;
"Contracting Party" means any natural person or legal entity with whom Milk Design enters into an Agreement or with whom Milk Design is negotiating the conclusion of an Agreement;
"DCC" means the Dutch Civil Code (Burgerlijk Wetboek);
"General Terms and Conditions" means the General Terms and Conditions of Milk Design;
"Intellectual Property Rights" means all existing and future intellectual property rights, subsisting anywhere in the world, whether registered or not (including but not limited to all patent rights, copyrights, neighbouring rights, database rights, design rights, trade mark rights and trade name rights) in connection with and/or arising from the Products;
"Parties" means Milk Design and the Contracting Party collectively;
"Products" means all goods and services provided by Milk Design; and
"Services" means all services provided by the Contracting Party to Milk Design.
These General Terms and Conditions shall apply to all Agreements (and/or changes or additions thereto) between the Parties and applies to the whole legal relationship between the Parties, unless otherwise agreed between the Parties in the Agreement. These General Terms and Conditions shall also apply to and form integral part of all quotations and offers made by Milk Design and all acceptances, acknowledgements and confirmations by Milk Design of any orders by the Contracting Party.
These General Terms and Conditions supersede any previous general terms and conditions of Milk Design.
The Contracting Party's general terms and conditions and/or any other conditions of the Contracting Party are not applicable to any Agreement and are hereby explicitly rejected by Milk Design.
In these General Terms and Conditions "in writing" shall mean by regular mail, fax or email.
The invalidity or unenforceability of any provision of these General Terms and Conditions shall not affect the validity or enforceability of any other provision of these General Terms and Conditions. Any such invalid or unenforceable provision shall be replaced or be deemed to be replaced by a provision that is considered to be valid and enforceable. The interpretation of the replacing provisions shall be as close as possible to the intent of the invalid or unenforceable provision.
In the event of a conflict between these General Terms and Conditions and any Agreement, the Agreement shall prevail.
Offers and orders
Any offers or quotations by Milk Design as well as any information contained in brochures, price lists and/or any other documents by Milk Design may be subject to changes made by Milk Design and shall not be binding on Milk Design.
Milk Design only accepts orders made by the Contracting Party in writing or through Milk Design's web portal. It is the Contracting Party's responsibility to ensure accuracy of the order. All orders of the Contracting Party for Products shall be deemed to be an offer by the Contracting Party to purchase the Products pursuant to these General Terms and Conditions. The order will not be binding on Milk Design until accepted in writing by Milk Design. Milk Design is entitled to accept not the full quantity which is ordered. The Contracting Party is only entitled to amend the order within twenty-four (24) hours after its acceptation by Milk Design, unless otherwise agreed to in writing by Milk Design.
All prices quoted by Milk Design shall be in Euros, Pounds or US Dollars and shall not include VAT (BTW) or any other (use or sales) taxes.
All costs in respect of packaging, shipment import and export duties and excise, as well as all other levies or taxed imposed or levied in respect of the Products and the carriage shall be at the Contracting Party's expense, unless the Products will be delivered in accordance with the Incoterms as set forth in Clause 6.1 and the applicable Incoterm states otherwise. Such costs or expenses which have been paid by Milk Design, shall be charged to the Contracting Party.
Milk Design has the right to amend any price for the Products in any Milk Design's price list at any time by sending the amended version of such price list to the Contracting Party, subject to a one (1) month notice period.
The prices for the Products are subject to adjustment upward or downward without notice in the event of alterations by either Party in specifications, quantities, designs or delivery schedules. Increases in the cost of fuel, power, materials, supplies, products obtained by Milk Design from third parties, insurance premiums, wages, salaries, social security contributions or other labour costs, or foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the cost of producing, warehousing, selling and/or transporting the Products, will be charged to the Contracting Party.
Payment by the Contracting Party
Milk Design may invoice the Contracting Party for the price of the Products ordered before or upon delivery of such Products. The payment by the Contracting Party to Milk Design shall be due within thirty (30) days after the date of invoice, unless the invoice mentions a different term of payment. All payments shall be made to the designated Milk Design address. If deliveries are made in instalments, each instalment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment, unless agreed to in writing by Milk Design. In addition to any other rights and remedies Milk Design may have under applicable law, interest will accrue on all payments which are made after the due date, at the statutory interest rate for commercial contracts in the sense of Article 6:119a DCC, from the due date until payment in full.
The term of payment as set forth in Clause 5.1 is to be considered as a deadline (fatale termijn) as referred to in article 6:83, subsection a, DCC.
The payments made by the Contracting Party shall firstly reduce the costs and interest due and secondly reduce the principal sum due.
All orders of the Products accepted by Milk Design shall at all times be subject to credit approval of Milk Design. If Milk Design, in its sole discretion, determines that the Contracting Party’s financial condition at any time does not justify production or delivery of the Products on the above payment terms, Milk Design may require full or partial payment in advance or other payment terms as a condition to delivery, and Milk Design may suspend, delay or cancel any credit, delivery or any other performance by Milk Design.
In the event of any default by the Contracting Party in the payment of any fees, charges or payments due, or any other default by the Contracting Party, Milk Design shall have the right to refuse performance and/or delivery of any Products until payments are made in full and Milk Design may suspend, delay or cancel any credit, delivery or any other performance by Milk Design. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
Delivery of Products by Milk Design
Delivery of the Products by Milk Design to the Contracting Party shall be made as follows:
in the event the Products will be shipped, delivery of the Products shall occur on 'Free On Board' (FOB) basis in accordance with the Incoterms 2010;
in the event the Products will be collected by the Contracting Party at the premises of Milk Design and/or any other premises which is provided for and/or designated by Milk Design, delivery of the Products shall occur on 'Ex Works' (EXW) basis in accordance with the Incoterms 2010;
in the event the Products will be delivered by Milk Design at the premises of the Contracting Party, delivery of the Products shall occur on 'Delivered at Place' (DAP) basis in accordance with the Incoterms 2010; or
in the event the Products will be delivered in consignment or at any storage place as set forth in Clause 6.5, delivery of the Products shall occur at the moment when Milk Design has notified the Contracting Party of such delivery in consignment or at such storage place.
Milk Design has the right to deliver the Products in instalments, whereby the payments shall be made as set forth in Clause 5.1.
The delivery dates communicated or acknowledged by Milk Design are approximates only and may never be considered as deadlines (fatale termijnen) as referred to in article 6:83, subsection a, DCC. Milk Design shall not be liable for, nor shall Milk Design be in breach of its obligations to the Contracting Party, for any delivery made within a reasonable time before or after the communicated delivery date. Milk Design agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that the Contracting Party provides all necessary order and delivery information sufficiently prior to the such delivery date.
The Contracting Party shall immediately give Milk Design a written notice in the event no delivery of the Products has been made at the delivery date communicated or acknowledged by Milk Design, whereby Milk Design has thirty (30) days after such notice within which to cure. If Milk Design does not deliver the Products within such thirty (30) day period, the Contracting Party's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement. The Contracting Party shall not be entitled to any compensation in that respect, nor shall the Contracting Party be entitled to terminate the Agreement.
If the Contracting Party refuses or fails to take and/or accept delivery of the Products ordered or to give the information or instructions necessary to the delivery, Milk Design shall be entitled to deliver the Products in consignment or to store such Products at any place at the Contracting Party’s risk and costs. The Contracting Party shall remain liable for payment of the purchase price, increased by interest and costs and any other damages.
In the event Milk Design’s production is curtailed for any reason, Milk Design shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result thereof may sell and deliver to the Contracting Party fewer Products than specified in the Agreement, as the case may be.
Risk and ownership
The risk of loss of, and/or damage to the Products shall pass to the Contracting Party upon Milk Design's delivery of the Products in accordance with Clause 6.1 and/or as from the moment the Contracting Party has the actual control over the Products.
Full legal and beneficial title and ownership of the goods shall pass to the Contracting Party once Milk Design has been fully paid for the Products, including but not limited to the purchase price, costs and expenses, by the Contracting Party. Milk Design is entitled to repossess the Products if the Contracting Party fails to fulfil any of its obligations under the Agreement and/or if Milk Design infers from the Contracting Party's behaviour or communication that the Contracting Party will fail to fulfil any of its obligations under the Agreement.
The Contracting Party is not entitled to process, sell and/or deliver or otherwise dispose the Products, nor to pledge the Products, unless this is in the Contracting Party's normal conduct of business.
Inspection and complaints
The Contracting Party is obliged to closely examine the delivered Products by Milk Design or to have the delivered Products inspected immediately upon the date of delivery in accordance with Clause 6.1. Any complaints about the defects and/or non-compliance with the specifications of the Products, including but not limited to complaints in respect of visible defects and/or damages of the Products and/or the colour of the Products, or the quantity of the Products delivered must be reported by the Contracting Party in writing to Milk Design within twenty-four (24) hours after the delivery of the Products. If the Contracting Party is able to demonstrate that it could not reasonably have detected any non-compliance of the Products, then such defects must be reported within three (3) weeks after their detection, but in any case no later than three (3) months after the delivery of the Products to the Contracting Party. In the event that the Contracting Party has not indicated that the Products are not in conformity with the specifications of the Agreement within twenty-four (24) hours after delivery, or in the event of non-visible defects within three (3) weeks after their detections or three (3) months after the delivery, such Products shall be deemed to have no defects and conform to the specifications.
Upon discovery of any defect or damage of the Products, the Contracting Party shall immediately cease the processing, use or sale of the Products concerned.
The Contracting Party shall give Milk Design all such assistance as Milk Design may require for the purpose of examining the complaint. Milk Design is only obliged to take complaints into consideration if Milk Design is given the opportunity to verify the complaint, whereby the Contracting Party shall substantiate the complaint.
The Contracting Party shall not be allowed to return the Products before Milk Design has agreed thereto in writing.
In the event the Contracting Party has filed a timely, correct and justified complaint in accordance with this Clause 8, Milk Design's sole and exclusive obligation, and the Contracting Party's sole and exclusive right, shall be limited, in Milk Design's sole discretion, either to the replacement or repair of a defective or non-conforming Product or to an appropriate credit for the purchase price thereof. However, the Contracting Party's obligation to take delivery and pay the invoices regarding such Products shall not cease. Milk Design will have reasonable time to repair, replace or credit the defective or non-conforming Product. The defective or non-conforming Products shall become Milk Design's property as soon as they have been replaced or credited.
A complaint which does not meet the requirements set out in this Clause 8, shall not be taken into consideration by Milk Design, the product shall be deemed to have no defects and conform to the specifications and does not release the Contracting Party from any of its obligations under the Agreement.
Guarantee by Contracting Party of Services rendered to Milk Design
The Contracting Party shall exercise the care of a good provider of Services.
The Contracting Party shall ensure and guarantees that the Services and/or all manuals or instructions related thereto, which are delivered by the Contracting Party to Milk Design, meet the requirements as set out in the Agreement and/or in additional instructions or specifications, and can immediately be used by Milk Design and/or any third party.
Sales territory and modification of products
The Contracting Party may only offer Milk Design's Products for sale within its designated territory. The Contracting Party may not modify the Products, including but not limited to removing labels, user manuals, accessories and/or serial numbers.
No resale by web retailers
The Contracting Party and/or any of its customers shall not resell any Products to web retailers and/or through e-commerce, unless agreed to in writing by Milk Design.
If Milk Design determines that the Contracting Party and/or any of its customers have sold or transferred any Product to a web retailer and/or through e-commerce, Milk Design reserves the right to reject, in whole or in part, any order from such Contracting Party, and/or to invoke any other remedy it has under the Agreement, these General Terms and Conditions and/or by law.
All Intellectual Property Rights, shall remain the exclusive property of Milk Design and/or its licensees. The Contracting Party acknowledges that it has no right, title or interest in, nor will it acquire or attempt to acquire any Intellectual Property Rights in its own or third parties' name, or for its own or others' behalf or act in any such way that may give the impression to third parties that the Contracting Party is proprietor of these Intellectual Property Rights.
The Contracting Party shall not use the Intellectual Property Rights, without Milk Design's prior written approval, except insofar as expressly permitted under the Agreement. The Contracting Party shall not cause or, where preventable, permit anything to be done (or, as the case may be, not done) which may damage or endanger the Intellectual Property Rights, including but not limited to their validity and/or reputation.
The Contracting Party shall inform Milk Design promptly, without making any admissions whatsoever, of any potential, threatened, alleged or actual claim that any Product infringes any right of a third party, or that the Intellectual Property Rights relating thereto are open to any form of attack, Milk Design or its licensees shall have the sole and complete control over such disputes and shall conduct the defence of any such claims and any related proceedings in such manner as they shall determine in their absolute discretion. The Contracting Party shall render all such reasonable assistance as Milk Design or its licensees request in connection therewith, including providing a power of attorney to conduct the proceedings in the Contracting Party's name. Milk Design or its licensees shall bear all cost involved in dealing with such disputes and enjoy any and all benefits thereof.
If the Contracting Party shall become aware of any infringement of any Intellectual Property Rights, the Contracting Party shall promptly inform Milk Design thereof. Milk Design or its licensees shall have the right but no obligation, in their sole discretion, to take such legal action as they deem necessary to enjoin such infringement, in which case Milk Design or its licensees shall bear all costs and expenses of the action and enjoy all benefits thereof. The Contracting Party shall render all such reasonable assistance as Milk Design or its licensees request in connection with such action.
If any Product is, or in Milk Design's opinion is likely to become, the subject of a claim of infringement as referred to in this Clause 12, Milk Design shall have the right, without obligation and in its sole discretion, to (i) procure for the Contracting Party the right to continue to use or sell the Product, (ii) provide replacement of the Product, (iii) modify the Product in such a way as to make the modified Product non-infringing, or (iv) terminate any Agreement to the extend related to such Product.
Limitation of liability and indemnification
Milk Design shall in no event be liable to the Contracting Party for any lost profits, lost savings, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages arising out of or in connection with the Agreement, the sale of any Products by Milk Design or the use thereof and/or the Services provided by the Contracting Party, whether or not such damages are based on tort, product liability, guarantee, statutory duty, or otherwise, even if Milk Design has been advised or is aware of the possibility of such damages.
Notwithstanding anything to the contrary in the Agreement or these General Terms and Conditions, any aggregate liability of Milk Design to the Contracting Party arising in connection with the Agreement or these General Terms and Conditions, under any theory or ground whether in contract, tort, product liability, guarantee, statutory duty, or otherwise, shall in no event exceed the invoice value of the Product or Service concerned (unless the damages is caused by intent or wilful recklessness by Milk Design or its managerial staff, in which case Clause 13.1 applies). In the event that any guarantee of Milk Design fails of its essential purpose or is held to be invalid or unenforceable for any reason, in consideration of the other provisions of the Agreement or these General Terms and Conditions, the Parties understand and agree that all limitations of liability will nevertheless remain in effect.
Any Contracting Party’s claim for damages or other remedies must be brought by the Contracting Party within ninety (90) days after the notice as set forth in Clause 8 or in case of Services rendered by a Contracting Party within thirty (30) days after the occurrence of damage, by failure of which all rights of the Contracting Party will cease.
The Contracting Party shall fully indemnify, protect, hold harmless and defend Milk Design from and against all liabilities, costs, losses, damages and/or claims of third parties for loss or damage, including but not limited to claims for economic and business injury, to persons or firms and all expenses incident to any losses, damages, legal fees or the foregoing claims (e.g. legal fees and repurchase of the Products by Milk Design in connection with tracing products to the retailer), in any way arising out of selling or retailing, or to the conduct of the Contracting Party’s business and the Contracting Party’s performance (or lack of performance or breach), including but not limited to a claim arising out of modification of the Product, unauthorized bulk selling, unauthorized distributing, the selling or marketing of the Products through unauthorized practices and/or the Services provided by the Contracting Party. Such indemnification obligation shall apply to the Contracting Party without regard to whether such liability, loss, damage or claim arises out of the conduct of the Contracting Party or the conduct of an agent, affiliate, or customer of retailer.
Milk Design shall not be liable for any failure or delay in performance if such failure or delay results from interruptions in the Product's manufacturing process or if such failure or delay is caused by force majeure as referred to in article 6:75 DCC, whether or not such force majeure was foreseeable at the time of the Agreement. As a result of such force majeure and/or default by one of Milk Design's suppliers, Milk Design cannot reasonably be required to execute its obligations.
In the event that, as a consequence of force majeure and/or default by one of Milk Design's suppliers, Milk Design is prevented from fulfilling its obligations to the Contracting Party, such obligation shall be suspended for the duration of the event of the force majeure and/or default by one of Milk Design's suppliers. In the event of such force majeure and/or default by one of Milk Design's suppliers, the Contracting Party shall not be entitled to any compensation whatsoever.
In the event that the force majeure and/or default by one of Milk Design's suppliers extends or reasonably expected by Milk Design to extend for a period of three (3) consecutive months, Milk Design shall be entitled to cancel the affected and undelivered portions of the Agreement without any liability towards the Contracting Party.
Every amount payable under these General Terms and Conditions and/or the Agreement by the Contracting Party to Milk Design shall be made in full without any right to set-off or counterclaim howsoever arising and shall be free and clear of deduction or withholding of any kind other than any deduction or withholding required by law.
The Contracting Party acknowledges that all technical, commercial and financial data disclosed to the Contracting Party by Milk Design and/or its affiliates is the confidential information of Milk Design and/or its affiliates. The Contracting Party shall not disclose, both during the Agreement and after expiry or termination thereof, any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed between by the Parties and/or is reasonably necessary to perform or enforce the Agreement. The Contracting Party shall immediately upon termination of the agreement return all confidential information and/or other products to Milk Design.
If the Contracting Party fails to fulfil any of its obligations under the Agreement and/or these General Terms and Conditions and/or files or becomes subject to insolvency proceedings of any kind whatsoever, such as bankruptcy, suspension of payment, receivership or liquidation and/or the Contracting Party's business is discontinued or wound up, Milk Design shall be entitled, without prejudice to any other rights or remedies, to suspend further execution of the Agreement concerned until payment has been sufficiently secured and/or terminate the Agreement in whole or in part without the Contracting Party being entitled to any compensation in that respect.
In the event of a material breach by Milk Design of any of its obligations under the Agreement and if such breach has not been cured within a two (2) months period after notification, the Contracting Party has the right to terminate the Agreement in whole or in part, taken into account a two (2) months' notice period.
If Milk Design terminates the Agreement, all of Milk Design’s accounts receivable from the Contracting Party, including all such accounts receivable under the Agreement concerned, shall be immediately due and payable in full. In such event, Milk Design and/or its agent(s) shall be entitled to enter upon the premises of the Contracting Party to recover the Products. The Contracting Party shall be required to take the necessary measures so as to enable Milk Design to effectuate its rights.
In case of early termination, Article 7:411 DCC does not apply.
Changes in terms and conditions
Milk Design has the right to unilaterally amend these General Terms and Conditions at any time. The amended General Terms and Conditions will be applicable to the Agreement after its notification by Milk Design to the Contracting Party.
Milk Design shall be entitled to transfer to any third party any or all of its rights and/or obligations under the Agreement. The Contracting Party gives its full cooperation in the sense of Article 6:159 DCC and gives its consent to a transfer of rights and/or obligation in advance. Milk Design shall not be obliged to pay any compensation whatsoever for a transfer of its rights and/or obligations.
The Contracting Party shall not be entitled to transfer its rights and/or obligations under the Agreement, unless agreed to in writing by Milk Design.
Governing law and jurisdiction
These General Terms and Conditions and any Agreement shall solely and exclusively be governed by and construed in accordance with the laws of the Netherlands, excluding (i) any conflict of law rules under Dutch private international law and (ii) the applicability of the United Nations Convention on Contracts for the International Sale of Good (Vienna Convention of 1980).
The competent court in Amsterdam, the Netherlands, shall have exclusive jurisdiction to settle any dispute in connection with these General Terms and Conditions and/or any Agreement without prejudice to the right of appeal (hoger beroep) and that of appeal to the Supreme Court (cassatie).