TERMS & CONDITIONS
General Terms and Conditions
Terms and conditions of Watch Branding, company address: Anna van Renesseplein 8, 1911 KN, Uitgeest, The Netherlands. Watch Branding is registered on the Commercial Register of Amsterdam under number 37116709.
Article 1 Definitions
In these general terms and conditions the following terms shall be defined as follows:
- customer: any person or entity ordering products from Watch Branding and/or with whom Watch Branding is discussing or negotiating the conclusion of an agreement;
- Defect: any fault in the products in deviation of the specification and any other improper functioning of the products;
- Term of delivery: the term by which the products must be delivered, as laid down in the agreement;
- Watch Branding: the user of these general terms and conditions, having a (pre-)contractual relationship with the customer;
- Order: any instruction from the customer to Watch Branding for the delivery of products, regardless of its form;
- agreement: any agreement made between Watch Branding and the customer, any amendment thereof or addition thereto, as well as any and all (legal) acts in to the preparation and/or fulfilment of such agreement;
- Products: any and all objects manufactured and/or delivered for the fulfilment of an order or, as the case may be, an agreement by or for the account of Watch Branding, as well as any services to be rendered by Watch Branding, including advice and creative expressions, whether or not pertaining to those objects;
- Specification: the description of products ordered by the customer, which is stated or referred to in the order or the agreement.
Article 2 Applicability
2.1 Unless agreed otherwise in writing, these general terms and conditionswill apply to all offers and quotations of Watch Branding and all agreements made between Watch Branding and the customer.
2.2 The applicability of any general terms and conditions (of purchase) used by the customer are expressly considered not applicable by Watch Branding, unless the applicability thereof is expressly accepted in writing by Watch Branding.
Article 3 Offers
3.1 Any and all offers in whatever form entail absolutely no commitment for Watch Branding and shall be regarded as a whole. If an offer indicates an acceptance term, this shall only imply that the offer is no longer valid after such term in any event.
3.2 Any pictures, catalogues, drawings and other data, including measurements, weights
and amounts, shall be as accurate as possible. This information is binding only insofar as expressly confirmed.
3.3 Any and all quotations and offers shall be based on the fulfilment of the agreement under normal conditions and during normal working hours.
3.4 An agreement shall only be valid if and insofar as it is confirmed in writing by Watch Branding or, as the case may be, after Watch Branding has started with the fulfilment of the agreement.
3.5 If due to circumstances including the nature, volume or urgency of the order, no order confirmation has been sent, the invoice shall be regarded as the order confirmation.
3.6 Each agreement shall be entered into by Watch Branding on the condition precedent that the customer shall prove to be sufficiently creditworthy for its financial obligations – at Watch Branding’s sole discretion.
3.7 Watch Branding shall be and remain the owner of all documents, supplied models, samples or examples relating to the offers made by Watch Branding and/or to the agreement, which cannot be supplied or made available to third parties for inspection, multiplied or imitated in any way without Watch Branding’s written approval. Within fourteen days of Watch Branding’s request to that effect, the customer shall be held to return the same to Watch Branding, carriage paid, in sound condition and in the original packaging where applicable.
Article 4 Prices
4.1 The price or prices indicated in the offer shall be in Euro, exclusive of VAT and/or any other charges.
4.2 Unless agreed upon otherwise, the price or prices indicated in the offer shall be based on the price-determining factors applicable to Watch Branding at the time of said offer, such as wages, cost price of (raw) materials and exchange rates. Increases in prices as a result of a change of one of these price-determining factors and occurring after the offer has been made, may be passed on to the customer by Watch Branding, even if the agreement has already been concluded.
4.3 Should application of the preceding paragraph result in a price increase by 10% or more within a period of 3 months after entering into the agreement, the customer shall be entitled to dissolve the agreement by means of a registered letter within 7 working days after having been notified of the price increase without being entitled to any damages.
Article 5 Delivery of processed products
5.1 In the event that Watch Branding receives an order to deliver products specifically processed (or, as the case may be, assembled) for the benefit of the customer, the customer shall be required to provide sufficient volumes of material suitable for the adaptation process. As long as the customer has not fulfilled that obligation, Watch Branding shall have the right to suspend its obligations under the agreement.
5.2 Watch Branding shall have an obligation to send a proof, model, sample or example to the
customer for approval only if the customer has made a stipulation to that effect in writing upon entering into the agreement, in which case Watch Branding agrees to present the customer with a proof, model, sample or example no later than two weeks after the agreement has been entered into and after the materials to be processed have been received, which proof, model, sample or example shall be deemed approved if no written reaction has been received within five working days.
5.3 Any and all costs of the proof, the model, sample or examples shall be invoiced separately and shall not be included in the agreed prices unless explicitly agreed otherwise.
Article 6 Advisory servicess and product development
6.1 Watch Branding may act as an adviser, if so requested. The Watch Branding shall have the right to invoice this to the customer separately, whether or not the advice relates to manufactured and/or delivered products pursuant to the agreement by or for the account of Watch Branding.
6.2 In the event of any product development, advice regarding promotional products to be applied, advice regarding creative concepts, quotations for extensive projects with processed or nonprocessed products, national or international market investigations into specific products or product applications of non-specified products, the provisions of paragraph 1 of this article shall fully apply.
Article 7 Engagement of third parties
Watch Branding shall be authorized to engage third parties for the fulfilment of the agreement. Watch Branding shall also be authorized to assign any rights and obligations arising from the agreement to third parties.
Article 8 Deliveries and Term of delivery / Force majeure
8.1 The term of delivery shall be determined roughly and shall never be regarded as final term, unless expressly agreed otherwise. The term of delivery shall take effect only after the agreement has been concluded in accordance with Article 3, after all information needed for the fulfilment of the agreement has been submitted and after the customer has paid the purchase price or, as the case may be, the instalment(s) agreed, or after the security required by Watch Branding has been provided.
8.2 If the delivery is prevented in part or in full by force majeure, Watch Branding shall have the right to suspend the delivery, and – in the event that the situation creating the force majeure continues to exist for more than three months or as soon as it becomes evident that it shall continue to exist for more than three months – to dissolve the agreement, in whole or in part, insofar as it has not been carried out, and to claim payment for the parts carried out, without any obligation to pay damages to the customer.
8.3 Force majeure shall include, without any limitation, fire, floods, strikes, epidemics, (civil) war, terrorism, government measures, permits not having been granted (in time), trade embargoes, labour disturbances, power outage, operational failure, breach of contract or wrongful acts by Watch Brandings and subcontractors of Watch Branding or other third parties, including any defects, failure, non-delivery or late delivery of materials, shipping, fuels, energy and labour.
8.4 Delivery shall take place ex works, unless explicitly agreed otherwise. Shipping costs and insurance costs shall be borne by the customer, even if i t is agreed that Watch Branding shall take care of the transport. The transfer of the risk of the products shall take place at the moment of delivery in accordance with the provisions of these general terms and conditions. The transport shall take place at the customer’s risk, even if the carrier has explicitly stipulated that all shipping documents must state that any and all damage resulting from the transport shall be at the expense and risk of the sender.
8.5 In the event that Watch Branding takes care of the transport, the customer, or a third party designated by the customer, must report any damage caused by the transport to the carrier or, as the case may be, the forwarder, immediately after receipt, but in any event within 12 hours after receipt of the products, and must send a copy of the report to Watch Branding.
8.6 Products that have not been purchased by the customer, or a third party designated by the customer after the term of delivery, shall be stored by Watch Branding at the expense and risk of the customer. If the products have not been purchased in time, Watch Branding shall have the right to dissolve the agreement after a period of 14 days of the expiry of the term of delivery, without prejudice to the Watch Branding’s right to sell the products to third parties.
8.7 If the colour, composition, weight, appearance etc. of the products deviate only slightly from any models, samples or examples supplied in advance, or from any other agreed provisions, the products concerned shall be deemed to comply with the agreement. The Watch Branding shall in any event be deemed to have fulfilled its obligations, if the weight or the amount of the products supplied does not deviate from the agreements made by more than 10%.
8.8 Watch Branding is allowed to send products in portions, and each portion can be invoiced separately.
Article 9 Complaints
9.1 It is customer’s obligation to inspect the products or cause the products to be inspected for any Defects immediately after delivery.
9.2 Any and all complaints regarding defects in the delivered products must be reported to Watch Branding in writing as soon as possible, but in any event within eight days of delivery of the products concerned, or within eight days of the discovery of the Defect, or in any event within eight days after the defect should reasonably have been discovered. After expiry of this term, the customer shall be deemed to accept (the quality of) the delivered products and to have waived all rights and remedies available to the customer by virtue of the law and/or the agreement and these general terms and conditions.
9.3 A complaint as referred to in the preceding paragraph shall not suspend the customer’s obligation to pay.
9.4 In the event that, in Watch Branding’s opinion, the customer has made the complaint with good reason, Watch Branding shall be required only to supply the missing product(s), to repair or replace the delivered products, or to refund (part of) the purchase price, at Watch Branding’s discretion.
9.5 Complaints can never be founded on minor deviations and/or deviations that are customary in the line of business, such as deviations referred to in Article 8, paragraph 7 of these general terms and conditions. The only basis for a complaint is a deviation from the specification as approved by the customer.
Article 10 Guarantee
Not covered by the guarantee are:
– Excessive and unusual wear and tear
– Any defect arising from accident, mishandling, incorrect or abusive use
– The batteries
– The glass
– The watch strap
– Inexpert or unauthorised repair
The international period of guarantee for our watches is 24 months.
Article 11 Retention of title
11.1 Watch Branding shall remain the owner of all products delivered to the customer, but the products shall be at the expense and risk of the customer as from the moment of delivery, until all amounts due pursuant to the agreement, as well as the claims on account of any failure by the customer to comply with this or any other agreement(s) have been paid by the customer in full, including any interest and collection costs.
11.2 As long as the title to the delivered products has not been transferred to the customer, the customer shall not be allowed to process the products, to place the products outside its actual control, or to sell, pledge or otherwise encumber the products, and the customer shall take any and all appropriate measures to separate the products and keep them separated from any other goods held by the customer and to do or procure all that is necessary to prevent any confusion of property (“vermenging”), accession (“natrekking”) or conversion (“zaakvorming”).
11.3 The customer undertakes to refrain from assigning or pledging to third parties any claims against its customers, and undertakes to pledge the claims referred to hereinbefore immediately after Watch Branding’s request to that effect, in the manner set out in Article 3:239 of the Dutch Civil Code as extra security for its claims against the customer on whatever account.
11.4 Any third parties wishing to recover any loss on account of the delivered products from Watch Branding shall be informed by the customer that the products are subject to a retention of title held by Watch Branding. The customer must immediately inform Watch Branding thereof in writing.
11.5 If the customer fails to fulfil its obligations or if Watch Branding has valid grounds to believe that the customer shall fail to fulfil its obligations, Watch Branding may invoke its retention of title, in which case, upon request, the customer shall be required to give Watch Branding actual control of the delivered products, immediately and free of charge. Furthermore, Watch Branding shall have the right to retrieve those products or have them retrieved from the place where they are stored, at the expense of the customer. The customer hereby grants Watch Branding an irrevocable authorization to enter (or cause others to enter) the premises used by of on behalf of the customer. After the products have been retrieved, the customer shall be credited at the market value, which shall in no event exceed the original purchase price, reduced by the costs of the retrieval and any damage incurred by Watch Branding.
Article 12 Payment
12.1 Unless agreed otherwise in writing and without prejudice to the provisions of the following paragraph, all payments to Watch Branding must be made in Euro, either net in cash, or at the office of Watch Branding by means of a transfer to or deposit into a bank account to be specified by Watch Branding, at Watch Branding’s discretion, always directly for 100% netto with the purchase order. The Watch Branding shall have the right to send electronic invoices and the customer hereby agrees to this method of invoicing insofar as it shall be applied.
12.2 Setoff and any other form of settlement shall never be permitted without an explicit written agreement.
12.3 Watch Branding shall at all times be authorized to require an advance payment or security which it deems sufficient for the fulfilment of the customer’s payment obligations, before delivering or continuing with the delivery, and Watch Branding shall have the right to suspend any further deliveries if the customer fails to meet such requirement, also in the event that a fixed delivery deadline has been agreed, without prejudice to Watch Branding’s right to claim damages in the event of late fulfilment or, as the case may be, non-fulfilment of the agreement.
12.4 If the customer fails to pay the amount due under to the agreement within the agreed period, the customer shall be in default by operation of the law and Watch Branding shall in that case be entitled to charge interest as from the due date of the unpaid invoice or invoices, at the statutory commercial interest rate plus 2%, and at a minimum annual interest of 12% on the amount of the invoice, without prejudice to any other remedies available to Watch Branding and without requiring any notice of default.
12.5 Any and all judicial and extra-judicial expenses incurred by Watch Branding for the collection of the invoice amount, including the fees of any third parties engaged by Watch Branding, shall be borne by the customer. The customer shall owe at least 10% of the principal amount of the extra-judicial expenses, and at the very least € 250.
12.6 If the customer is in default with respect to its obligations under the agreement or these general terms and conditions, all payment obligations of the customer to Watch Branding shall be immediately due and payable from the moment of being in default, regardless of whether any invoices have been sent for such obligations.
Article 13 Intellectual and industrial property rights / Non-disclosure
13.1 Any and all intellectual and industrial property rights (including trade mark rights, model rights and patents) on all designs, drawings, models, samples and examples that have been made available or developed by virtue of the agreement (hereinafter: “the Information”) shall be exclusively vested in Watch Branding, unless expressly agreed otherwise.
13.2 The customer shall not be entitled to use the Information referred to in the preceding paragraph in any other way than for the benefit of the use of the products to which they relate as provided for in the agreement.
13.3 The customer shall observe confidentiality in respect of all information, specifications, business information and know-how concerning and provided by Watch Branding, which has been made available to the customer for the fulfilment of the agreement. Upon request, the customer shall immediately transfer the confidential information, as well as all copies or other multiplications thereof, to Watch Branding.
Article 14 Infringement of third parties’ rights
14.1 If a competent court has irrevocably decided in legal proceedings initiated against the Watch Branding that any Product supplied by Watch Branding constitutes an infringement of intellectual or industrial property rights of a third party, Watch Branding shall, at its discretion, replace the relevant good by a product that does not infringe any such right or attempt to acquire a right to use the contested good or refund the price paid by the customer for the Product at issue, reduced by a reasonable depreciation.
14.2 In the event of a replacement or refund, Watch Branding shall be entitled to attach the condition thereto that the originally delivered products must be returned.
14.3 Watch Branding shall have no other obligations in respect of any infringement of third parties’ rights than the obligation to replace, acquire or refund as referred to in the first paragraph.
14.4 If an order is carried out according to design, drawings, formula, specifications or instructions provided by or on behalf of the customer, or if such order is carried out by making use of any goods to be provided by or on behalf of the customer, the customer cannot invoke the aforementioned provisions of this article and the customer shall indemnify Watch Branding against any and all claims regarding an alleged infringement of intellectual or industrial property rights of third parties.
Article 15 Liability
15.1 Watch Branding shall assume liability only, if:
– the damage is a direct consequence of a wilful act or gross negligence on the part of Watch Branding or any executive employees of Watch Branding;
– the damage is directly caused by a demonstrable defect in the products manufactured by Watch Branding and/or supplied products, in that they are not as safe as is fair to expect under all circumstances.
15.2 Watch Branding does not accept any liability for any improper placement of the business logo and/or business name on the customer’s goods, any other adaptations of customer’s goods and/or delivery of products, if and insofar as the Defect is the result of any inaccuracy, or deficiencies in the design submitted by the customer to Watch Branding, or any infringements on the rights of third parties constituted by the design.
15.3 The total liability of Watch Branding caused by any attributable failure to comply with the agreement shall in any event be limited to compensation of the material and direct damage up to the amount of the separately stipulated prices of the products concerned (exclusive of VAT).
15.4 In respect of the damage referred to hereinbefore, Watch Branding shall not assume any liability for any damage that is not compensated by its insurer (upon request, Watch Branding shall provide the customer with a copy of the insurance agreement concerned). Furthermore, the total liability of the Watch Branding shall never exceed a total amount of € 50,000 per event.
15.5 Watch Branding shall only be held liable for any consequential damage or direct loss for which it has explicitly assumed liability in these general terms and conditions.
15.6 The customer shall indemnify Watch Branding against any and all claims by third parties who have allegedly suffered a loss as a result of a Defect in a good that has been supplied by the customer to a third party and that consisted (inter alia) of goods supplied by Watch Branding, except if and insofar as the customer provides evidence for the fact that the loss was caused only and exclusively by the products supplied by Watch Branding.
15.7 In the event of force majeure as referred to in Article 8, paragraph 3 of these general terms and conditions, Watch Branding shall never be liable for any damage of any kind.
15.8 Unless explicitly agreed otherwise in writing, all legal claims pursuant to the agreement and these general terms and conditionsshall lapse after one year of the delivery date.
Article 16 Return of goods provided on free loan
16.1 If Watch Branding has provided goods to the customer on free loan for the fulfilment of the agreement, whether or not free of charge, the customer shall return all of these goods in their original condition and free of defects, immediately after the termination of the agreement regardless of the grounds. The term referred to hereinbefore is to be considered as a final date.
16.2 If the customer fails to fulfil the obligation referred to in paragraph 1, regardless of the reason for such failure, Watch Branding shall be entitled to recover from the customer all damage and costs resulting therefrom, including replacement costs and loss of rent, without prejudice to any and all other remedies available to Watch Branding.
Article 17 Dissolution
17.1 If the customer fails to fulfil any of its obligations vis-à-vis Watch Branding in full, in time or appropriately, if a suspension of payment has been filed in respect of the customer, if it got bankrupt or if its business is terminated, in the event of a legal merger or if a substantial part of the customer’s control is transferred to another person or entity, all invoices shall be immediately due and payable and Watch Branding shall be entitled to dissolve all agreements concluded with the customer in whole or in part by means of a written statement – without requiring any judicial intervention or notice of default – and the Watch Branding shall be entitled to compensation of all direct damage and consequential damage, including loss of profit, without prejudice to any other remedies available to it.
17.2 If Watch Branding, even after having been demanded in writing to that effect, fails to fulfil its obligations at all, in time or appropriately, the customer may dissolve the defective part of the agreement without, however, being entitled to claim any compensation of the costs of dissolution, and the provisions of Article 11 of these general terms and conditionsregarding the retention of title shall explicitly remain applicable.
Article 18 Disputes / applicable law / jurisdiction clause
18.1 These general terms and conditions, as well as any and all offers and agreements to which these general terms and conditionsapply, shall exclusively be governed by Dutch law. The UN Convention on Contracts for the International Sale of goods (also referred to as the Vienna Sales Convention) shall not apply.
18.2 Any and all disputes arising between Watch Branding and the customer shall be settled by the competent court in the district in which Watch Branding has its registered office.
Article 19 Other provisions
19.1 These general terms and conditionsare available in Dutch and English. In the event of any discrepancies between the Dutch and the English version, the Dutch version shall prevail.
19.2 These general terms and conditions can be amended by Watch Branding. The customer shall be notified by Watch Branding of any amendments in writing, and such amendments shall take effect thirty (30) days after such notice, unless a different date is stated in the notice. The customer hereby agrees to the contents and applicability of the amended general terms and conditions, if any, as from the effective date stated in the notice.
19.3 If any provision of the agreement or these general terms and conditionsare found to be null and void or otherwise unenforceable, this shall not affect the applicability of the remaining provisions of the agreement and the general terms and conditions. In any such event Watch Branding shall have the right to replace such provision by a provision that approximates the provision that is null and void/nullified or, as the case may be, unenforceable as regards its aim and purpose.
Release May 2015.