General Terms and Conditions of Supplyas at January 1st, 2011 Office Depot B.V.
Article 1: Definitions and applicability of these terms and conditions
The following definitions apply to these General Terms and Conditions:
a. Office Depot: Office Depot B.V.
b. The other party: every (legal) person with whom Office Depot concludes a contract or negotiates with the aim of concluding a contract.
c.Supply means: execution of work, the provision of services and the actual supply.
d. The meaning of the term ‘Delivered Duty Paid’ is as laid down in the Incoterms applicable at the moment of concluding the contract.
e. The term 'written' also means ‘electronic’.
f. These Terms and Conditions form part of all contracts and are applicable to all associated (legal) actions of Office Depot and the other party. The applicability of general terms and conditions belonging to the other party are expressly rejected by Office Depot.
g. Deviations from these Terms and Conditions are only applicable if they have been confirmed in writing by Office Depot.
Article 2: Offers and orders
a. Quotes issued by Office Depot and prices listed in catalogues and elsewhere are without obligation and only serve as an invitation to make an offer, unless stated otherwise in writing by Office Depot or if a period of validity is stated.
b. Office Depot has the right to reject every offer or order from the other party without stating the reasons for this.
c. A contract between Office Depot and the other party shall only be considered to have been concluded if Office Depot has accepted, in writing by means of an order confirmation or in the event that this is lacking by supply and/or invoice, an offer from the other party in response to a non-committal quote issued by Office Depot.
d. Unless stated otherwise, all prices stated exclude VAT and other government-imposed duties.
e. Office Depot has the right to impose an order handling charge of € 7.50 for orders falling below a value of € 49.95.
Article 3: Delivery
a. Unless agreed otherwise, delivery in the Netherlands (with the exception of the Wadden Islands) is Delivery Duty Paid to the address of the other party.
b. The other party is obliged to accept the purchased goods at the moment that they are delivered or made available to him. If the other party refuses to accept the goods or fails to provide information or instructions necessary for delivery then the goods will be stored at the expense and risk of the other party. In that case, the other party shall owe supplementary costs including, in any event, the actual (storage) costs. Office Depot can demand payment of the invoice amount as if delivery had taken place. After a period of 4 weeks following the lapsing of the agreed delivery time, Office Depot has the right to dissolve the contract and sell the stated goods to third parties. The costs associated with this and any reduced revenue from the goods are at the expense and risk of the other party.
c. Office Depot is permitted to supply sold goods in batches and to invoice each batch separately, unless agreed otherwise (monthly invoice, complete delivery).
Article 4: Intellectual property
a. The Customer is not permitted to change or remove designations of patents, copyrights notices, brands, trade names, or other intellectual property rights from the products.
b. The Customer guarantees the correct use of the software products in accordance with the license conditions of the relevant manufacturer.
c. All intellectual property rights related to goods delivered by Office Depot belong to Office Depot or third parties. It is never the intention to transfer these rights to the other party and no agreement with the other party may be interpreted as such, unless parties have given express and written consent.
d. The intellectual property rights in relation to the website of Office Depot, the design of such and the descriptions, images, photos, video clips and other information, in whatever form, included on the website(s) of Office Depot are vested in or have been granted by license to Office Depot or a company affiliated to Office Depot.
Article 5: Delivery times,
The delivery times quoted are done so to the best of our knowledge and will be respected wherever possible, however they are not binding. If the time is exceeded, for whatever reason, the other party shall never have a right to claim compensation, contract dissolution or breach of any obligation. In the event that the delivery time is exceed excessively the supplier shall enter into further discussion with the other party.
Article 6: Price change
If Office Depot has agreed a specific price with the other party, Office Depot nonetheless has the right to increase the price to the price applicable at the time of delivery in accordance with its price list applicable at that moment. If the agreed price is increased by more than 5% the other party has the right to dissolve the contract.
Article 7: Packaging
a. If necessary, Office Depot shall use returnable packaging. Office Depot shall clearly indicate if return packaging (or deposit packaging) is used. The other party is obliged to return such packaging empty and undamaged within 14 days of delivery and to do so at its own expense and risk.
b. If the other party accepts goods from the carrier then this counts as proof that the packaging was in good order, unless the other party notes on the carriage note, statement or proof of receipt that this was not the case. The other party is responsible for the packaging from the moment of that it takes receipt of the packaging.
c. Following receipt of a demand to return the packaging, if the other party fails to do so within the period stipulated on the demand, Office Depot has the right to proceed to replace the packaging and charge for the costs of this.
Article 8: Samples, models and examples
If Office Depot shows or issues a model, sample or example then this is only assumed to be shown or issued as an indication: the quality of the goods to be supplied may deviate from the sample, model or example, unless expressly agreed in writing that goods will be supplied in accordance with the shown or issued sample, model or example.
Article 9: Complaints and returns
Claims relating to defects that can be detected immediately must be notified to the supplier by the other party within 8 working days after delivery of the order or provision of the relevant service. If (electrical) equipment is completely defect (dead on arrival), the other party must notify Office Depot in writing within 2 days of delivery. In the event of failure to do so the other party shall only be entitled to repair of the goods or fulfilment of the deficit. If the discovery of the defect cannot be reasonably assumed within that period then the defect must be notified immediately following its discovery. In all cases the maximum period for complaints is 12 months. Every right of complaint will be null and void if the goods have already been used by the other party. Order returns are only possible after consultation with the Customer Service Department of Office Depot, and on condition that the instructions stated on the rear of the packing slip and those sent with the goods have been followed. Return costs are to be borne by the client unless the return is due to a fault caused by Office Depot. If the value of the goods to be returned is less than € 70 (excl. VAT), you will be charged € 7.50 return costs. If the value of the goods to be returned is greater than € 70 (excl. VAT), you will be charged € 15.
Article 10: Guarantee
a. If Office Depot delivers goods to the other party that it has obtained from its suppliers then Office Depot is never bound to a guarantee towards the other party that extends beyond the guarantee that Office Depot is able to claim from the supplier.
b. Defects resulting from incorrect use, faulty maintenance or improper use are excluded from the guarantee.
c. Office Depot guarantees that the goods that it supplies with a private label are free from design, material and manufacturing faults for a period of 12 months following supply.
d. Once Office Depot meets the obligations referred to above the other party shall not be entitled to any right to claim further compensation.
Article 11: Payment
a. Unless agreed otherwise, payment is to be made within 30 days of the date of the invoice using a legal means of payment at the office of Office Depot or by transfer of the amount owing to an account of Office Depot, as stated on the invoice. For monthly invoices the payment term is 15 days from the date of the invoice.
b. After the due date has lapsed and if payment has not been received then the other party is in breach without the need for a default notice to be issued. From the moment of breach the other party will be charged interest on the entire claimable amount that is equal to the statutory interest +1%. The date of payment is the date on which the payment is credited to the bank or Giro account of Office Depot.
c. Payment must be made without the other party having authority to apply any discount on the payment, suspending payment or using the payment to settle a claim against Office Depot.
d. The supplier has the right to increase the net invoice amount, excluding sales tax, with a credit restriction surcharge of 2% listed separately on the invoice. In the event of payment on or before the due date the other party may deduct the relevant amount from the invoice.
e. Claims relating to the performance of the contract do not entitle the other party to suspend payment.
Article 12: Collection costs
All costs associated with the collection of account receivables, both legal and non-legal, shall be charged to the other party. In any event, the supplier has the right to charge non-legal expenses of 15% of the outstanding amount, with a minimum of € 115.00.
Article 13: Retention of title
The ownership of the goods supplied to the other party does not transfer to the other party until the amount has been paid in full by the other party. The other party is obliged to store any goods delivered under retention of title with due care and clearly recognisable as Office Depot property. The other party is not permitted to encumber or transfer the supplied goods in any way for as long as the amount owing has not been fully paid, unless the other party operates its business as a reseller, in which case he is entitled to resell the goods. However, this right to resell will be terminated if the supplier rejects that right after the payment term has lapsed, or if the other party is declared bankrupt or applies for a suspension of payments. If the other party fails to fulfill its obligations, Office Depot is entitled to recover (or have recovered) the goods at the expense of the other party from the place where they are located.
Article 14: Risk
The risk of loss or damage in respect of the supplied goods or goods to be supplied transfers to the other party at the moment that the goods actually become available to him, or to an intermediary used by him, with the right to dispose of the goods.
Article 15: Execution of work / provision of services
a. All equipment and facilities that are necessary for the work and/or service provision by Office Depot are at the expense and risk of the other party.
b. At its own expense and risk, the other party shall ensure that:
1. as soon as the personnel of Office Depot arrive on the site where the personnel of Office Depot are to carry out work, they are able to commence their work and are at all times given the opportunity to carry out their work during normal working hours and, furthermore, outside of normal working hours if such is agreed or is necessary, this latter being at the sole discretion of Office Depot;
2. the required lockable storage areas for materials, tools and other goods are present;
3. the required and normal assistants, auxiliary equipment and auxiliary and production materials are made available to Office Depot on time, free of charge and at the correct place;
4. all required safety and other precautionary measures are taken and maintained.
c. Costs incurred by Office Depot arising from the non (timely) compliance with that which is stipulated in this article are at the expense and risk of the other party.
Article 16: Termination of the contract
In the event of non-observance of the obligations by one of the parties, the opposing party has the right to dissolve the contract without the need for legal intervention or notification of default. The same applies if one of the parties is declared bankrupt or suspends payments.
Article 17: Liability
a. Office Depot is not liable for damage to the goods other than with due consideration of that which is stipulated in Article 9. In any event, the contractual and legal liability of Office Depot is limited to the amount of (part of) the agreed price of the goods for which the liability has arisen.
b. Office Depot is not liable, either on the basis of the law, or on the basis of contract, for so-called consequential damages, including trading loss, damage to the environment and immaterial damage, that may be suffered by the other party or by third parties in respect of the performance of the contract by Office Depot or by (use of) the goods.
c. If it is established in law that Office Depot is unable to have recourse to the above exoneration clauses then the obligation by Office Depot to pay compensation is in all cases limited to the amount of the insurance payment.
d. That which is stipulated in the above paragraphs is without prejudice to the liability of Office Depot on the basis of Title 3, Chapter 3, Book 6 of the Civil Code (Product liability).
e. Office Depot shall make no claim for liability restrictions in Articles 16 sub a and 16 sub b if and so far as the damage is the direct consequence of an intentional act or gross negligence on the part of Office Depot.
f. Without prejudice to that which is stipulated in this article, Office Depot is not liable:
1. if, within 8 working days after the other party has become aware of the damage or the incidents causing damage, Office Depot has not been notified of this by the other party in writing; or
2. if and so far as the damage is covered by an insurance policy concluded by the other party.
Article 18: Indemnity
a. Unless the damage is caused by an intentional act or gross negligence on the part of Office Depot or its managing personnel, the other party shall indemnify Office Depot against all claims by third parties arising for whatever reason, including claims for damages, costs or interest relating to the (use of the) goods or arising from the performance of the contract and the other party shall pay for all damages, including (legal) expenses suffered by Office Depot as a result of such claims.
b. The meaning of third parties as referred to in paragraph 1 also includes personnel employed by the other party and other (legal) persons engaged by the other party in the performance of its activities.
c. The other party is obliged to notify Office Depot in writing within 8 days if a claim for damages is made against the other party by a third party as a result of which the other party and/or third party(ies) will (potentially) seek to hold Office Depot (jointly) liable. The settlement for damages in such a case by the other party shall only be undertaken following consultation with Office Depot (who by so doing does not accept any liability) and failure to do so will be under penalty of cancellation of claims by the other party against Office Depot.
Article 19: Force majeure
In the event of force majeure and other circumstances of such a nature that observation of obligations cannot be demanded from either party in all reasonableness and fairness, the performance of the contract shall be suspended on both sides. Those circumstances include: strike and lock-out, blockade, riot, stagnation or other problem associated with Office Depot production or that of its suppliers and/or by its own transport of that of third parties and/or devaluation, increase in import duties and/or excise duty and/or taxes and/or measures imposed by any government body. The parties may only invoke force majeure if the relevant party notifies the other party of this as quickly as possible in writing. If such a suspension lasts for longer than 3 months then both parties may terminate the contract by registered letter. In this case, that which has already been performed in respect of the contract is to be settled on a pro rata basis, without either of the parties owing the other anything further.
Article 20: Disputes
This Agreement is governed by Dutch law. All disputes arising from this contract are to be brought before the competent court in Roermond (The Netherlands). If one of the parties considers that there is a dispute and wishes to bring this before the court then this must be notified to the other party in writing. In this case the opposing party shall have the right for a period of one month to opt for the dispute to be settled by a legally competent civil court.
Office Depot B.V. - Chamber of Commerce Venlo (The Netherlands) Nr. 05047775 - VAT Nr. NL008280034B01 Our General Terms and Conditions of Purchase and Supply are registered with the Chamber of Commerce Limburg, The Netherlands