GENERAL TERMS AND CONDITIONS OF DELIVERY OF DRAKE & FARRELL B.V.
ARTICLE 1. DEFINITIONS
The following definitions shall apply in these terms and conditions:
a. Drake & Farrell: Drake & Farrell B.V., a private company with limited liability, and its affiliated companies;
b. affiliated companies: any parent, subsidiary and/or sister companies of Drake & Farrell, being (combinations of natural persons or) legal entities in which Drake & Farrell has a financial, organisational or economic interest of more than fifty percent and that have the accompanying control or any (combinations of natural persons or) legal entities that have such financial, organisational or economic interest and control in Drake & Farrell;
c. Client: the natural person or legal entity that has given Drake & Farrell an assignment as under d;
d. assignment: an assignment awarded to Drake & Farrell by the Client, whether or not under a (service) agreement concluded between the parties for the manufacture, processing, delivery or packaging of goods or for the provision of services, whether or not related thereto;
e. quote: any offer, price indication, budget, advance calculation or communication of a similar nature, whether or not referred to as a quote;
f. in writing: in writing or by electronic means;
g. work: all work to be carried out by Drake & Farrell for the Client pursuant to an assignment given by the Client and accepted by Drake & Farrell and all ensuing work for Drake & Farrell;
h. the conditions: these general terms and conditions of sale and delivery;
i. service agreement: an agreement entered into by Drake & Farrell and the Client regarding the work to be carried out by the Drake & Farrell, of which these conditions form part;
j. delivery date: the delivery date as described in Article 7 (4).
k. freight forwarding: the transport of goods made available by the Client and/or purchased by Drake & Farrell pursuant to the conclusion of one or more transportation agreements by Drake & Farrell for the Client with a carrier. Forwarding also includes any customs activities performed by Drake & Farrell on behalf of the Client and representation of the Client for tax purposes.
ARTICLE 2. APPLICABILITY
1. The conditions apply to all offers, quotes, assignments, (service) agreements and legal and factual acts relating to the work to be carried out by Drake & Farrell.
2. Drake & Farrell is entitled to unilaterally amend these conditions.
3. The applicability of the Client’s general terms and conditions is explicitly excluded.
ARTICLE 3. QUOTES, ASSIGNMENTS AND
1. Assignments and Agreements are only binding on Drake & Farrell insofar as they have been accepted.
2. Quotes are non-binding, unless explicitly stated otherwise in the quote.
3. All information material provided by Drake & Farrell to the Client (which is understood to mean: shown on the Drake & Farrell website) has been prepared with care, but Drake & Farrell cannot guarantee that there will not be any discrepancies. If the Client proves that the products delivered deviate from the specifications in such a way that it cannot reasonably be required to accept them,
the Client shall be entitled to dissolve the agreement insofar as the dissolution is reasonably justified.
4. Changes to an original quote/assignment/agreement made by the Client may affect the agreed time schedule and the cost of performance. The additional costs resulting from this shall be borne by the Client.
5. Drake & Farrell is entitled to have work carried out by one or more third parties to be appointed by Drake & Farrell.
6. The Client bears the risk of misunderstandings with regard to the content and performance of the assignment if such misunderstandings are due to Drake & Farrell not receiving specifications, or not receiving them correctly, on time or at all.
ARTICLE 4. SUPPLY
1. The materials to be processed by Drake & Farrell for the purposes of the assignment must be delivered to Drake & Farrell or to the address specified by Drake & Farrell by the Client or a third party engaged by the Client at the Client’s expense, in good time and under the Client’s responsibility and risk. Only then can the services commence.
2. Pallet costs are payable by the Client.
ARTICLE 5. PERFORMANCE AND INSPECTION
1. Drake & Farrell is entitled to provide services in parts and to send separate invoices for those services.
2. Drake & Farrell shall not be in default by the mere fact of exceeding an agreed performance deadline, but only upon receipt of a written notice of default from the Client, stating a reasonable period within which to make the delivery, which is at least 10 working days.
3. Insofar as the agreement has been partially fulfilled, dissolution is only possible for the part for which Drake & Farrell is in default.
4. If and insofar as Drake & Farrell is to supply the products it has received from the Client (on which Drake & Farrell has applied its services) independently (i.e. not on behalf of the Client), the following shall apply:
a. the Client shall be obliged to take delivery of the products on the delivery date and at the time specified by Drake & Farrell. If no delivery date and time has been agreed, the Client is obliged to take delivery of the products upon Drake & Farrell’s first request.
b. If the Client fails to take delivery, Drake & Farrell is entitled to take all necessary measures at the Client’s expense and risk (such as storage with a third party) that it deems advisable.
5. The Client is obliged to inspect the services provided (or have them inspected) as soon as the products are in its possession. Any defects must be notified in writing to Drake & Farrell within 24 hours of their discovery or after they could reasonably have been discovered. The Client must give Drake & Farrell the opportunity to investigate a complaint (or to have it investigated).
6. If the Client does not comply with that which is stated in Article 5.5 of these conditions, the Client shall no longer be entitled to any repairs, replacements or compensation.
7. If it has been established that the provisions of Article 5.5 in these conditions have been complied with in good time and the service is defective, Drake & Farrell will remedy the defect. The Client is obliged to deliver the product in question to Drake & Farrell at its own expense so that Drake & Farrell can remedy the defect.
ARTICLE 6. PRICES
1. Drake & Farrell is entitled to increase the agreed prices for its services once a year in line with the Panteia index (or a similar index if and insofar as the Panteia index can no longer be applied). Drake & Farrell is also entitled to pass on cost increases due to changing market conditions (such as government-imposed measures due to a pandemic/epidemic) to the Client.
2. In addition to the agreed price, the expenses incurred by Drake & Farrell and the invoices and cost statements charged by third parties engaged by Drake & Farrell will be charged to the Client.
3. All prices are exclusive of sales tax.
4. If, before or during the performance of the assignment, Drake & Farrell discovers that the material and/or software supplied deviates from the specifications or quality specified by the Client beforehand, the Client shall pay the resulting cost price increases.
ARTICLE 7. PAYMENT
1. Unless expressly agreed otherwise in writing, payment shall be made within 30 days of the invoice date to a bank account specified by Drake & Farrell. The payment date shall be the date on which the amount due is credited to Drake & Farrell’s account.
2. If payment has not been received by Drake & Farrell within the agreed period, the Client shall be in default by operation of law and shall owe interest of 1% per month (part of a month shall count as one month) on the amount due as from the due date, without any reminder or notice of default being required. Drake & Farrell is entitled to charge the Client for extrajudicial and judicial costs incurred in collecting the claim. The extrajudicial collection costs shall be due from the time that the Client is in default and shall amount to 15% of the claim with a minimum of € 250.
3. If the performance of an assignment takes longer than one month, the work may be charged per month.
4. The Client is obliged to pay all amounts charged by Drake & Farrell without deduction or settlement. Complaints regarding the completion of the work shall not affect the Client’s payment obligation.
5. In the event of a jointly awarded assignment, insofar as the work is performed for the joint clients, the clients shall be jointly and severally liable for payment of the invoice amount and the interest and costs due. Drake & Farrell and/or its affiliated companies are mutually authorised to collect claims against the client(s) on behalf of each other, even if these claims arise from a separate agreement or accepted assignment between Drake & Farrell and/or (one of its) affiliated companies and a Client.
6. Drake & Farrell is entitled to require (alternative and/or additional) security from the Client for the compliance with its (further) payment obligations prior to any (further) performance.
7. Drake & Farrell may exercise a right of retention over all goods, documents and monies that it holds or will hold in its possession in connection with the Client’s assignment, in respect of all claims that Drake & Farrell has or will have against the Client and/or the owner of the goods, including claims not relating to the goods, documents and monies in question.
8. All goods, documents and monies that Drake & Farrell has or will have in its possession in connection with the assignment are subject to a pledge in respect of all claims that Drake & Farrell has or will have against the Client and/or the owner of the goods.
9. Drake & Farrell can also exercise the rights referred to in this article in respect of what is still owed to it by the Client in connection with previous assignments, work or deliveries.
10. If Drake & Farrell is taken to court by a client or in connection with an agreement entered into with the Client, all costs incurred by Drake & Farrell in connection with such proceedings shall be payable by the Client and the Client shall pay the costs at Drake & Farrell’s first specification, without the possibility of a discount or settlement, if and insofar as Drake & Farrell is found to be in the right in such legal proceedings, or if an order for costs is made against the Client or the other party in such proceedings.
11. Drake & Farrell shall at all times be entitled to settle any amounts charged to it by the Client or any other claim of the Client on Drake & Farrell, irrespective of the basis on which such claim is made, against any outstanding amounts owed to Drake & Farrell by the Client and, where applicable, Drake & Farrell shall be entitled to suspend the fulfilment of any obligations towards the Client, for whatever reason, for as long as any outstanding amounts are owed to Drake & Farrell by the Client.
ARTICLE 8. LIABILITY
1. Drake & Farrell shall not be liable for any damage, of whatever nature, arising from its use of incorrect and/or incomplete information supplied by or on behalf of the Client.
2. Drake & Farrell is only liable for damage (i) if it is covered by its liability insurance up to the amount paid out under its insurance policy plus the excess, or (ii) if it or one of its managers is guilty of intent or gross negligence.
3. If (i) there is no intent or gross negligence, or (ii) the insurance does not pay out and Drake & Farrell is nevertheless liable, then this liability shall be limited solely to direct damage (whereby liability for indirect damage, such as loss of profit and damage caused by the product, shall be expressly excluded) up to a maximum of € 25.000,-.
4. All rights of action and other powers, on whatever grounds, that the Client has against Drake & Farrell, must be communicated to Drake & Farrell in writing within two months from the moment the Client became aware of them or could reasonably have become aware of them, failing which they will lapse.
5. Should Drake & Farrell be held liable by third parties, the Client shall assist Drake & Farrell, both extra-judicially and judicially, and shall do without delay all that may be expected of it in such case. If the Client fails to take adequate measures, Drake & Farrell shall be entitled to do so itself, without notice of default being required. All costs and damage incurred by Drake & Farrell and third parties as a result will be borne in full by the Client.
6. The Client indemnifies Drake & Farrell against claims from third parties who suffer damage in connection with the performance of the agreement.
7. Damage and liability in connection with or arising from freight forwarding activities are also subject to the provisions of the Dutch Forwarding Conditions as drawn up by Fenex and filed with the Registrar of the District Courts of Rotterdam and Amsterdam on 1 May 2018, or its successors.
8. If the Client requests Drake & Farrell to affix a code to the packaging ordered by it or to create such a code, Drake & Farrell shall never be liable for the legibility of this code.
9. In the event that Drake & Farrell performs work based on drawings, models, samples or other instructions in the broadest sense of the word provided by the Client, the Client guarantees that such work will not infringe any trademark, patent, utility or trade model or any other right of a third party. If a third party objects to Drake & Farrell’s work on the basis of any alleged right, the Client shall indemnify Drake & Farrell against all claims of whatever nature and Drake & Farrell shall be entitled to cease its activities forthwith and to claim compensation for its costs and damages from the Client, without Drake & Farrell being liable to pay any compensation.
ARTICLE 9. DAMAGE/INSURANCE
1. Transport and storage of the materials and goods supplied by the Client and to be processed by Drake & Farrell shall remain the property of the Client and at the Client’s risk and expense.
2. The material to be processed can, following a written statement of the value of the goods, be insured by Drake & Farrell against theft, fraud, loss, misappropriation and/or damage at the Client’s expense. Any liability on the part of Drake & Farrell in this case shall be limited to the amount paid out, if any, by the insurance company.
3. If Drake & Farrell resells goods received from its suppliers or uses the services of third parties in the performance of its assignment, these conditions shall also apply. Drake & Farrell’s liability towards the Client shall never exceed the liability it is able to invoke towards these third parties.
ARTICLE 10. COMPLAINTS REGARDING QUANTITY/QUALITY
1. Complaints about shortfalls in quantities or about the quality of the work carried out and/or materials supplied must, on penalty of nullity, be noted on the shipping advice, consignment note, receipt or other confirmation of receipt of the materials immediately upon their delivery to or upon their receipt by the Client, and must also be reported in writing to Drake & Farrell, failing which the Client shall be deemed to have accepted the quantity and quality of the goods supplied.
2. Defects in part of the delivery or defects in part of a batch do not entitle the customer to refuse the entire batch.
4. Returns may only be made with the written approval of Drake & Farrell. If after inspection a complaint proves to be unfounded, the return shipment costs and the redelivery costs shall be paid by the Client. If the complaint is found to be well-founded, the return shipment costs will be paid by Drake & Farrell.
5. The quantities stated on the shipping advice by or on behalf of the Client shall be assumed by Drake & Farrell to be correct.
ARTICLE 11. DISSOLUTION AND CANCELLATION
1. In addition to the possibilities offered to Drake & Farrell by law regarding (culpable) failure in the fulfilment of its obligations, Drake & Farrell is entitled to dissolve this agreement if:
a. the Client fails to fulfil the obligations arising from the agreement, or fails to do so fully or in good time;
b. Drake & Farrell becomes aware of circumstances after the conclusion of the agreement that give good reason to suspect that the Client will not fulfil its obligations;
c. if the Client’s assets are attached, or it is granted a suspension of payments, or it is declared bankrupt.
2. If the agreement is dissolved, Drake & Farrell’s claims against the Client shall become immediately due and payable.
3. If Drake & Farrell decides to dissolve the agreement, it shall in no way be liable for compensation of losses and costs incurred in any way by the Client.
4. If the Client terminates the assignment prematurely, Drake & Farrell will be entitled to compensation for the investments made and/or costs incurred by Drake & Farrell for the performance of the work (such as, but not limited to, hired staff) and to compensation for the loss of capacity resulting from the termination, unless the Client terminates the assignment due to a serious breach of contract by Drake & Farrell.
5. Drake & Farrell is entitled to terminate the assignment prematurely on the basis of economic reasons that make it unreasonable to expect Drake & Farrell to continue the assignment. A written notice period of three months shall apply. The aforementioned economic feasibility will be verified by an independent expert appointed by Drake & Farrell. The costs of engaging this expert will be paid by Drake & Farrell. Drake & Farrell will cooperate fully in the transition to another service provider. Costs incurred by Drake & Farrell in the area of knowledge transfer for this transition will not be charged to the Client.
6.Obligations that, by their nature, are intended to continue after the termination of the assignment shall continue after the termination of the assignment. These obligations include: indemnification for infringement of intellectual rights, liability of the parties, confidentiality, dispute resolution and applicable law.
ARTICLE 12. FORCE MAJEURE
1. Drake & Farrell is not obliged to fulfil any obligation if fulfilment is not possible due to force majeure.
2. Force majeure is understood to mean a circumstance that cannot be attributed to fault and that is not at the expense or risk of the defaulting party by virtue of law, legal action or generally accepted practice. This shall include (if and insofar as such circumstances make performance impossible or unreasonably difficult) but not be limited to war, threat of war, civil war, riots, acts of war, fire, (the consequences of government measures resulting from) epidemics and pandemics, water damage, flooding, strikes, sit-ins, lockouts, import and export obstructions, government measures, defects in machinery, disruptions in the supply of energy, all of which occurs at Drake & Farrell’s business or at the businesses of third parties from which Drake & Farrell has to obtain all or part of the necessary materials, services or raw materials, and furthermore all external causes, foreseen or unforeseen, over which Drake & Farrell has no influence or which it could not avoid (the consequences of).
3. If the period of force majeure lasts longer than two consecutive months, each of the parties shall be entitled to terminate the assignment, without any obligation to pay damages to the other party.
4.Insofar as Drake & Farrell has already fulfilled part of its obligations under the assignment at the time when the force majeure occurs, or will be able to fulfil them, and insofar as independent value can be attributed to the part fulfilled or to be fulfilled, Drake & Farrell is entitled to invoice the part fulfilled or to be fulfilled separately. The Client is obliged to pay these invoices.
ARTICLE 13. DUAL USE AND RELATED REGULATIONS
1. If an export licence is required for the supply of one or more products or services, including products listed in the ‘EU dual use regulation 428/2009’ or any sequential versions, Drake & Farrell can only be held to its obligations under the contract if the required licence is actually and definitively issued for those products or services. 2.If Drake & Farrell applies for the necessary licence or arranges for the necessary licence to be applied for, the Client shall be obliged to cooperate fully and provide all the information necessary for the application of the licence as referred to in the first paragraph of this article. 3. Drake & Farrell reserves the right to terminate the assignment at any time if the assignment concerns products or services within the meaning of the first paragraph of this article and it is evident or likely that the required licence will not be obtained. In that case, Drake & Farrell is not obliged to compensate any damage suffered by the Client or third parties. 4. The Client is not permitted to use or supply the products or services supplied by Drake and Farrell B.V. to the Client in contravention of Regulation 428/2009 EU or other applicable regulations. All consequences of (a violation of) the Regulation or other applicable regulations shall be for the account and risk of the Client and shall not relieve the Client of any obligation. The Client shall indemnify Drake & Farrell against any fines imposed on Drake & Farrell by the enforcement authorities in connection therewith.
ARTICLE 14. REMNANTS
1. If no instructions are given by the Client in this regard, Drake & Farrell shall be entitled to return or destroy remnants of materials in the manner it chooses two weeks after the delivery date.
2. The transport costs for returning or destroying remnants of materials, including packaging, shall be borne by the Client.
3. If the Client does not return pallets and other packaging made available by Drake & Farrell, either of its own accord or following a written request to do so, the costs associated with retrieving these shall also be borne by the Client.
ARTICLE 15. STORAGE
1. The Client will be charged a storage fee for goods or materials that are stored at Drake & Farrell for the purposes of the work for the Client, not including the day between the delivery of the goods or materials to Drake & Farrell and their delivery.
2. During storage, the goods or materials are not insured by Drake & Farrell and any damage, loss or other harm, due to whatever cause, will never be at the expense of Drake & Farrell unless there is intent or deliberate recklessness on the part of Drake & Farrell.
ARTICLE 16. INTELLECTUAL PROPERTY
1. The performance of the assignment by Drake & Farrell does not imply the transfer of any intellectual property rights vested in Drake & Farrell. All intellectual property rights arising during, or resulting from, the performance of the assignment shall belong to Drake & Farrell, unless expressly agreed otherwise in writing.
2. The copyright and all other intellectual or industrial property rights to goods supplied or made available by Drake & Farrell to the Client, irrespective of whether Drake & Farrell acted on instructions or according to the Client’s specifications, shall be held exclusively by Drake & Farrell or its licensors, and the Client shall only acquire the rights of use expressly granted in these conditions, unless otherwise agreed in writing.
3. Drake & Farrell grants the Client only a non-exclusive right to use the aforementioned rights. The Client may only use these rights for the benefit of its own business and for the purpose for which they were granted to it by Drake & Farrell.
4. The right of use is not transferable to third parties without the prior written consent of Drake & Farrell. The Client is not permitted to sell, rent out, dispose of or transfer the rights as security or to make them available to third parties in any way.
5. The Client is expressly forbidden to reproduce, disclose or exploit products that contain Drake & Farrell’s intellectual property rights, or products that are subject to intellectual property rights with regard to the use of which Drake & Farrell has acquired rights of use – which in this context includes, but is not limited to: computer programs, system designs, working methods, advice, templates, macros and other intellectual products.
6. The Client is not permitted to make the products referred to in the fifth paragraph available to third parties without the prior written consent of Drake & Farrell, other than to obtain a professional opinion about the performance of the work by Drake & Farrell. The Client shall in that case impose its obligations under this article on the third parties it engages.
ARTICLE 17. ELECTRONIC COMMUNICATION
1. During the performance of the assignment, Drake & Farrell and the Client may communicate with each other by electronic means.
2. Drake & Farrell shall not be liable to the Client for damages resulting from the use of electronic means of communication, including – but not limited to – damages resulting from non-delivery or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by software/hardware used for transmitting, receiving or processing of electronic communications, transmission of viruses and non-functioning or malfunctioning of the
telecommunications network or other resources required for electronic communications, except insofar as the damages are the result of intent or deliberate recklessness.
3. The data extracts from the sender’s computer systems are binding evidence for (the contents of) the electronic communication sent by the sender, until the recipient has furnished proof to the contrary.
ARTICLE 18. PROCESSING PERSONAL DATA
1. If Drake & Farrell processes personal data on behalf of the Client in connection with the assignment, it will process them as the processor. The Client remains responsible for the processing of all personal data that are processed on the basis of the assignment.
2. Drake & Farrell and the Client are obliged to regulate and lay down the intended processing(s) of personal data in a Processing Agreement (Processing agreement within the meaning of Article 28 of the General Data Protection Act). The Drake & Farrell processing agreement will be applied as standard.
ARTICLE 19. CONFIDENTIALITY
1. Both parties will observe strict confidentiality with regard to all that has come to their knowledge from the other party during the conclusion and performance of the assignment, including information about each other’s organisation, working methods, business processes, services, software and intellectual property rights and rates, subject to obligations imposed by law or court order. For this purpose, a decision by a body competent to settle the dispute pursuant to Article 23 shall be regarded as equivalent to a court order if the parties have agreed on another form of dispute settlement. Except with the prior written consent of the other party, each party shall not make information and data carriers belonging to the other party available to third parties, unless this is necessary for the provision of the agreed services.
2.In derogation from the preceding paragraph, Drake & Farrell shall be entitled to mention the assignment in publications or advertisements and, with the Client’s consent, to use the Client’s name as a reference.
ARTICLE 20. APPLICABLE LAW AND DISPUTE RESOLUTION
1. All orders shall be governed exclusively by Dutch law, if and insofar as necessary with the exclusion of the Vienna Sales Convention.
2. Any disputes between the parties will be resolved amicably as far as possible. If the talks do not lead to a solution, the dispute will be submitted to the competent court in Rotterdam, unless the parties agree upon another form of dispute resolution.
Terms & Conditions Drake & Farrell version April 2022