General terms and conditions of sales and delivery
General terms and conditions of sales and delivery (the "Conditions") of the private company with limited liability
- Cobeco Pharma Wholesale B.V. a company registered under the laws of the Netherlands, having its place of business at Hertzstraat 2, 2652 XX Berkel en Rodenrijs, the Netherlands and registered in the trade register of the Chamber of Commerce under number 24367268 (hereinafter: "Cobeco") and
- Client of Cobeco, (hereinafter: the "Client")
Cobeco and the Client may be referred to individually as a "Party" or collectively as the "Parties."
- Cobeco is, inter alia, a large private label manufacturer of pharmaceutical, cosmetic and stimulating products in Europe.
- The Client desires to have Cobeco manufacture goods (the "Goods") under its own, i.e. the Client’s, brand.
- In manufacturing the Goods for the Client, Cobeco will use the Intellectual Property (the "Intellectual Property") of the Client, as instructed and indicated by the Client.
- Cobeco requires the Client to warrant that it owns, or has valid, licenses to the Intellectual Property.
- Each Party is duly authorized and capable of entering into this conditions.
Article 1 - General
- These general conditions shall apply to any quotation, offer and agreement between Cobeco Pharma Wholesale B.V., hereafter called: Cobeco, and a client to the extent not expressly derogated from by parties in writing.
- These conditions also apply on agreements between Cobeco and any third party that has to be involved by Cobeco in the execution of the agreement.
- These general conditions have also been written for the employees of user and its executive board.
- The applicability of any general terms and conditions of the client is expressly excluded.
- If one or several provisions in these general conditions at some moment are (partially) declared null and void are, then the remaining conditions are fully applicable. In these circumstances Cobeco and the client will enter into consultation in order to replacement the condition that was declared t null and void by a new provision, where as much as possible the original aim and scope of the original provisions are observed.
- If obscurity exists on the explanation of one or more provisions of these general conditions, then the explanation takes place in the spirit of these provisions.
- If a situation occurs between parties that is not regulated in these conditions, then this situation must be assessed to the spirit of these general conditions.
- If Cobeco is not always desiring strict compliance of these conditions, that does not mean that these provisions do longer apply, or that Cobeco to any degree would lose the right to demand exact compliance of the provisions in other cases.
Article 2 - Quotations and offers
- Unless expressly stated otherwise, all quotations shall be without engagement. Cobeco cannot be kept to quotations and offers if the client can reasonably understand that the quotation or offer, or a component of these, contains an obvious mistake.
- The prices mentioned in the quotation or offer are exclusive of VAT and other levies by the government, possible costs within the framework of the agreement such as travel expenses, transport- and administrative costs, unless differently mentioned.
- If the acceptance (whether or not on subordinate points) deviates from the quotation or the offer then Cobeco is not bound to these. The agreement does not come about in accordance with these deviating provisions, unless Cobeco indicates differently.
- A quotation or offer which is composed of various tasks does not oblige Cobeco to perform a part of the task against in accordance with part of the given price. Once given quotations and offers shall not automatically apply to any future orders.
Article 3 - Contract durations; delivery times, execution and modification of the agreement
- The agreement between Cobeco and the client is contracted for an indefinite period unless the nature of the agreement dictates differently or if parties expressly agreed differently in writing.
- If for the completion of certain activities or for the supply of certain matter a period has been agreed or has been corresponded then these shall never be considered as fatal terms. In the event of a non-timeous delivery the client must therefore give the seller a written notice in default. In such an event the client has to offer Cobeco a reasonable period to execute the agreement as yet.
- If Cobeco needs data from the client in order to execute the agreement then the period for delivery does not start before the data are provided to Cobeco.
- Delivery of goods occurs ex works unless differently is agreed. If the goods regardless of the agreed method of transport and delivery, are ready and waiting for the client to take delivery and the seller has so informed the client, the client shall be bound to take delivery without summons or notice. Failure to fulfill the liability to take delivery shall give the seller the right to store the goods or keep the in storage at the clients expense and risk.
- Cobeco has the right to involve third parties in the execution of the agreement.
- Cobeco is authorized carry out the agreement in several phases and the thus carried out parts to be charged separately.
- If the agreement is carried out in phases Cobeco shall be entitled to suspend the execution of the next phase until the client has approved the results of the preceding phase in writing.
- If during the implementation of the agreement it appears that considerable modifications and additions are necessary, then parties shall consult each other to adept the agreement. If the nature, dimension or content of the agreement changes, whether or not on the indication of the client and if the agreement changes of the in qualitatively and/or quantitative respect then this may have consequences for the original agreement. As a result, the initially agreed amount can be raised or reduced. Cobeco will make a quotations as much as possible in advance. By a modification of the agreement in addition the initially agreed upon delivery time can be modified as well. The client accepts the possibility of modification of the agreement, including the modification in price and delivery time.
- If the agreement is modified or added, then Cobeco shall be entitled to suspend the execution of the agreement until the client has agreed with the costs and other conditions, including the then agreed delivery time. If the modified agreement is not immediately executed by Cobeco this shall not be considered non-performance and shall not provide a reason to cancel the agreement. Cobeco cannot be hold liable if it refuses to execute a modification of the agreement which may result in a lack of quality in the ordered goods or services.
- If the client fails to meet his obligations towards Cobeco then the client shall be liable for all damage (including costs) directly, or indirectly.
- If client agrees a fixed price, then Cobeco shall nevertheless be entitled at any time to increase price without the client being entitled to cancel the agreement, if the increase results from changes of legislation, the increased price of raw materials, the increase of wages or any event that was unforeseeable at the moment of conclusion of the agreement.
- If the price increases by over 10%, other then as the result of modifications to the agreement, and this takes place within three weeks of concluding the contract, then the client shall only be entitled to apply to the Dutch civil code (Burgerlijke Wetboek, Boek 6, titel 5, afdeling 3) if Cobeco is not willing to execute the original agreement, if the increase is not a result of obligatory legislation or if the delivery date less them three months in advance.
Article 4 - Suspension and termination
- Cobeco may suspend performance of the obligations or dissolve the agreement if:
- Client fails to perform his obligations under the agreement, or fails to do them so timeously.
- After entering into the agreement circumstances are discovered as a result of which there is good reason to fear that the client will not perform the obligations.
- Upon entering into the agreement the other party was requested to provide security for performance of its obligations under the agreement and such agreement is not provided or insufficient.
- If by delays on part of the client Cobeco can no longer be reasonably required to execute the agreement on the original terms.
- In addition Cobeco shall be entitled to dissolve the agreement in circumstances of such nature that performance of the agreement is impossible or according to standards of reasonableness and fairness, can no longer be required, or in circumstances of such a nature that unamended continuation of the agreement cannot reasonably be expected.
- As from the time of termination of the agreement the claims of Cobeco against client shall become immediately due and payable.
- If Cobeco dissolves or postpones the agreement it shall not be liable for any damages or cost, however they are arisen.
- If the termination is attributable to client then Cobeco shall be entitled to compensation for damages, including costs, whether directly or indirectly.
- Cobeco retains the right to consider the agreement as disbanded by law without serving notice upon the buyer, in case of bankruptcy, insolvency or whatever the legal state of the buyer.
Article 5 - Force majeure
- Cobeco shall not be bound to perform any obligation if they are unable to do so as a result of force majeure.
- For purpose of these general conditions, force majeure shall in any event mean, in the addition to the interpretation thereof in the law and in case law, any external causes, either foreseen or unforeseen, beyond Cobeco’s control, due to which Cobeco is unable to perform obligations. Furthermore, Cobeco shall be entitled to invoke force majeure if the circumstances precluding (further) performance occur after Cobeco should have performed its obligations.
- During the period of force majeure the parties may suspend the obligations under the agreement. If such period exceeds two months, either party may terminate the agreement without any obligation to pay damages to the other party.
- To the extent that, at time of occurrence of a situation of force majeure, Cobeco has already performed part of its obligations under the agreement or will be able to perform such obligations, and the services performed or to be performed will have independent value, Cobeco shall be entitled to invoice the services performed separately.
Article 6 - Payment
- Unless differently corresponded payments must take place in advance in a manner designated by Cobeco in the currency stated in the invoice.
- If the clients payment is transgressed client shall be automatically legally in default and Cobeco shall be entitled to charge the Dutch statutory interest from the moment the claim is due up to the moment the payment is made.
- Payments made by the client invariably serve first to pay all due costs and the interest incurred, and next to pay the oldest claimable invoices, even if the client states that the payment relates to a more recent invoice.
- Clients shall never be entitled to settle invoices against other debts.
- Objections to invoices do not imply the right to postpone payment. A client who cannot appeal to the Dutch civil code (Article 231 up to 247 book 6 Burgerlijk Wetboek) may not suspend its payments for any other reason.
- As from the moment the client is in default with regard to the fulfillment of his obligations all extra judicial costs of reimbursing will be charged to the client. The extra judicial costs will be based on the usual debt collection practices in The Netherlands, currently according to the ‘Rapport Voorwerk II’. However if Cobeco has made higher reimbursement costs which were reasonably necessary then the actual costs are due. Any possible judicial costs (such as legal costs and lawyers costs) will be entirely refunded by the client. Interest costs are also due for all reimbursement costs.
Article 7 - Reservation of title
- Title to all items provided by Cobeco shall not pass to the client until the client has performed all obligations under the agreement entered with Cobeco with respect to such items.
- The delivered items which are subject to reservation of title may not be resold or used as a means of payment. Client is not entitled to pledge or the items or entail it by any other means.
- Client will do all that can reasonably expected to safeguard Cobeco’s rights of ownership.
- If any third parties wish to establish or exercise any rights in respect to the delivered items, the client shall notify Cobeco as soon as reasonably expected.
- The client is obliged to ensure all delivered items against fi re, the risk of explosion, water damage and theft. At Cobeco first request the policy is send on approval. Cobeco shall be entitled to any possible insurance indemnity.
- At forehand client gives its irrevocable permission to Cobeco to entry all places necessary in order to reposes the items belonging to Cobeco in the event Cobeco wishes to invoke its reservation of title.
Article 8 - Warranty
- All to be delivered items are in accordance with the usual demands, standards and regulations, which can be reasonably demanded for regular us in the Netherlands. The warranty mentioned in this article is limited to use within The Netherlands. If client wants to use the items outside the Netherlands he has to verify himself if the items are suited and according to the laws of the destined country. An (apparent) incorrect verification does not release client from any of its obligations towards Cobeco. Its explicitly stated that the before mentioned also applies in the event that the delivery of items is prevented by non-Dutch authorities, for example when items are confiscated. In no event an incorrect verification can be considered as a defect item.
- Client is obliged to research deliveries immediately upon arrival of the goods. Clients investigates if the goods are in accordance with the agreement considering quality and quantity. Visible defects should be reported in writing within seven days upon delivery. Any possible non visible defects should be reported in writing within fourteen days upon discovery. Client provides Cobeco the opportunity to investigate the complaint.
- If defects are reported later then Client loses its right to recovery, replacement or compensation.
- If it is established that the delivered items were defect and were claimed timeously then Cobeco shall ensure that the items are replaced within a reasonable period after the return of the items. If return is not reasonably possible then Cobeco will take care of the recovery or compensate to the client.
Article 9 - Liability
- In the event Cobeco should be liable then its liability is limited to what has been stated in this article.
- Cobeco shall not be liable in any way whatsoever for damage that is the result of incorrect or incomplete data provided by client.
- In the event Cobeco should be liable then its liability shall at all times be limited to the net invoice amount with respect to the performance rendered.
- In any case Cobeco’s liability is limited to the possible insurance indemnity of any particular case.
- Cobeco can only be liable for direct damage.
- Direct damage is defined as reasonable costs to establish the cause and extent of the damage as far as this assessment is related to damage intending these conditions, the reasonable costs to bring the items in compliance with these conditions, as far as these can be blamed on Cobeco and reasonable costs to prevent or limit damage, as long as client can demonstrate that the costs have resulted in limiting the damage as intended in these conditions.
- Cobeco shall never be liable for indirect damage in any way whatsoever relating to or caused by errors or defects in the performance rendered.
- The limitations of liability mentioned in this article shall not apply with regard to purposeful action or crass fault of Cobeco, its directors or subordinates.
Article 10 - Passing of risk
- The risk of loss or damage of the items that are subject matter of the agreement shall pass to the client upon actual transfer of title to such items so that they are brought under the control of the client or third parties to be designated by the client.
Article 11 - Indemnifications
- Either party shall indemnify the other against any third-party claims for compensation of damage or otherwise, directly or indirectly connected with the performance of the agreement.
Article 12 - Intellectual property
Intellectual Property is defined as: All copyrights, trademark rights, patent rights, trade secret rights, and all other intellectual property rights, including any pending registrations and applications for registrations of the foregoing.
- All rights of intellectual or industrial property in respect of all products, works, documentation, etc., provided pursuant to the agreement, shall be owned exclusively by Cobeco, unless expressly provided otherwise in these general conditions or agreement.
- The Client will give Cobeco full and unconditional access to its Intellectual Property in order to enable Cobeco to manufacture Goods for the Client under private label, i.e. under the Client’s brand.
- The Client will specify all its Intellectual Property material used to complete transaction that is to be used by Cobeco;
- The Client hereby represents and warrants to Cobeco that it:
- owns all right, title, and interest in and to the Intellectual Property;
- has not assigned, transferred, licensed, pledged, or otherwise encumbered the Intellectual Property, or any part of it, and has not agreed to do so;
- has full power and authority to enter into these Conditions;
- is not aware of any violation, infringement, or misappropriation of any third party’s rights (or any claim thereof) of the Intellectual Property;
- is not aware of any third party consents, assignments, or licenses that are necessary to perform these Conditions;
- The Client agrees to immediately notify Cobeco in writing if any facts or circumstances arise that would make any of the representations in these Conditions inaccurate.
- All costs and damages suffered by Cobeco as a result of incorrect or untrue warranties given by the Client under these Conditions will automatically be brought by and for the account of the Client, without a prior Court order being necessary nor judicial proceedings.
- The Client will, as soon as is reasonably possible following a request from Cobeco, provide Cobeco with a complete copy of all documentation (in any format) relating to the Intellectual Property.
- All references in these Conditions to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of these Conditions shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties.
- Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given by registered mail to the respective Party.
- These conditions may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of these Conditions, use of a facsimile, email, or other electronic medium shall have the same force and effect as an original signature.
- Whenever possible, each provision of these conditions, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of these conditions is held to be invalid, or unenforceable in any respect, such invalidity, or unenforceability will not affect any other provision or the validity of these conditions.
- These conditions, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
All designs of articles made by us shall be our property and may not be imitated. Clients shall not have the right to order articles according to our designs to be made by third parties.
Article 13 - Applicable law and jurisdiction
- These conditions shall be governed by the laws of the Netherlands. Any conflict or litigation resulting from or arising out of these Conditions shall be brought before the competent Court of the Netherlands.
- Dutch law applies to all agreements and other legal relationships established under these conditions. The applicability of the United Nations Treaty with regard to international purchase agreements (Vienna, 1980) is expressly ruled out.
- Except where imperative law decrees otherwise, only the Court of Justice in Rotterdam will in principle be authorized to take note of disagreements between Cobeco and the client, unless Cobeco prefers to submit the disagreement to the authorized court of justice in the clients place of business.
- In cases involving differences in interpretation between the original Dutch text of the general conditions and the English translation, the Dutch text takes preference and will be considered binding.
- These conditions have been filed at the Chamber of Commerce.