NUUD B.V
GENERAL TERMS AND CONDITIONS OF SALES AND DELIVERY
NUUD BV | Koningin Wilhelminaplein 13 (WFC), Unit 1.03.05 | 1062 HH AMSTERDAM - NL
Article 1 - Agreement definitions
The agreement between NUUD and a Customer for the sale and delivery of Products.
Customers :
Any (legal) person or limited company, acting in the course of a profession or business to whom NUUD offers Products or with whom NUUD enters in, has entered in or is negotiating an Agreement.
Force majeure :
Events including but not limited to earthquake, flood, storm, lightning, fire, explosion, war, terrorism, civil disturbance, sabotage, strike, lockout, labour disturbances, accident, epidemic, difficulties to obtain required raw materials or labour, lack of or failing transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown of public utilities, changes of law, statutes, regulations or any other legislative measures, acts of governments, supranational organisations or other administrative or public agencies, orders or decrees of any court, acts of third parties, delay in delivery or defects in goods or materials supplied by suppliers or subcontractors and other events of similar nature.
IPR :
All trademarks, copyrights and intellectual and industrial property rights that are connected and related to the Products and NUUD.
NUUD :
NUUD B.V., a limited liability incorporated under Dutch law, registered at Anthony Fokkerweg 3, 1059 CM, the Netherlands and registered with the trade register number 69328943, including its successors, agents, and assigns.
Orders :
All orders for Products placed by the Customer with NUUD.
Parties :
The Customer and NUUD jointly.
Products :
All goods and services offered for sale by NUUD.
Terms :
These terms and conditions of sale and delivery.
Article 2 - Applicability
These Terms apply to all offers, Orders, Order confirmations and Agreements made by NUUD and the execution thereof.
The Customer accepts the exclusive applicability of these Terms. Any deviations must be agreed in writing for each Agreement.
These Terms shall also be applicable to all subsequent Agreements between the Parties.
The applicability of the Customer's general terms and conditions is explicitly excluded.
In the event of conflict between these Terms and the provisions of an Agreement, the latter shall prevail.
Article 3 - Orders and (formation of) Agreement
An offer should be regarded as an invitation to the Customer to place an order. All offers by NUUD are without obligation and while stocks last and are not binding on NUUD.
An offer without obligation included in a quotation or proposal may be withdrawn by NUUD within 5 business days after acceptance by the Customer without being obliged to pay compensation for any damages.
Orders are placed either by email via https://orders@nuud.com/ or via de website. NUUD is not obliged to provide an acknowledgement of receipt.
Orders from the Customer and acceptances of quotations by the Customer are irrevocable and full payment shall be due. Any changes or cancellations of Orders require written permission by NUUD, to which permission NUUD may attach conditions.
An Agreement is formed after a written confirmation by NUUD of the Order, or after the execution of the Order has commenced.
Samples, designs, photos, delivery periods, price (quotations), quantities, sizes, weights, and other conditions as stated in Order confirmations are for information purposes and never binding on NUUD.
Article 4 - Prices
The list containing prices for the Products is available on request. The price list is also available via the website. In case of conflicting prices, the price list containing the most recent prices as send on request shall prevail.
All prices and invoices are in Euros, excluding VAT and other levies and taxes which may be imposed by authorities. NUUD is entitled to issue invoices electronically.
NUUD reserves the right to offer one or more special offers and promotions from time to time, which are limited in time. Any price reductions that may be granted for these special offers and promotions are added to the price reductions that may be granted in accordance with the Terms on the invoice.
If at any moment between the offer and delivery date, prices of raw materials, energy, labour, transport and taxes, increase, or in the event of changes in law applicable or affecting the Product(s), NUUD shall inform Customer as soon as possible of such price increases and NUUD shall be entitled to either increase its prices accordingly or cancel the Order. NUUD cannot be held liable for damages arising from such amendment or cancellation.
Article 5 - Payment
Unless otherwise agreed in writing, payment must take place without deduction or set-off within 30 days after the invoice date, by bank transfer under reference of the corresponding invoice number.
NUUD is entitled to refuse (periodic) deliveries if Customer is in default with outstanding invoices.
In the case of the payment term being exceeded, the Customer shall automatically be in default, without a notice of default being required, and the Customer shall pay the statutory commercial interest (wettelijke handelsrente) from the expiry date. In addition to the amount payable and the commercial interest, the Customer is liable for all costs and damages sustained by NUUD because of non-payment or late payment by the Customer, including any judicial and extrajudicial costs. The extrajudicial costs amount to at least 15% of the outstanding amount.
The Customer is not entitled to set-off any claims it might have against NUUD.
Any claims of the Customer on NUUD are not transferable or pledgeable. This clause has effect under property law (goederenrechtelijke werking).
If the Customer is in default or if, in NUUD’s opinion, there are good reasons to doubt whether the Customer can meet its payment obligations (including in any case the Customer’s bankruptcy or suspension of payment, attachment, encumbrance or liquidation of Customer's business), NUUD, without being obliged to pay any compensation and without prejudice to any further rights due to NUUD, is entitled to:
a - demand advance payment or provision of security;
b - fully or partially suspend the execution of the e-Agreement;
c - revoke agreed payment terms, making all (other) outstanding amounts immediately payable;
d - remove or have third parties remove Products that are subject to retention of title from the Customer, at the expense and risk of the Customer;
e - terminate the Agreement with immediate effect,
in all the above cases with compensation for any damage suffered by NUUD.
Article 6 - Delivery
Unless agreed otherwise, for Orders above EUR 500,00 excluding VAT NUUD delivers Products DDP (Duty Delivery Paid Incoterms 2020) in respect of deliveries in the European Union only.
For orders below EUR 300 in European Union Countries NUUD will apply standard commercial shipping fees. For orders below EUR 500 in the rest of the world ROW NUUD will apply standard commercial shipping fees. NUUD reserves the right to modify the delivery costs as any time.
NUUD reserves the right to choose the means, the carrier, and the place of departure of the deliveries.
The time of delivery is usually eight (8) business days after confirmation of the Order. For special offers and promotions, Orders will be delivered on the date requested, subject to a firm Order confirmed by NUUD, before the requested delivery date.
NUUD shall use commercially reasonable efforts to deliver the Products as soon as possible, any timeline indication being communicated for information purposes only. Stated delivery periods are never considered strict deadlines. The delivery period commences on the date the Agreement was formed. In the case of a late delivery, NUUD must be given a written notice of default and be allowed a reasonable period for compliance.
The risk regarding the Products will transfer to the Customer upon delivery. If the Customer does not take receipt of the Products, for whatever reason, the Customer will be obliged to compensate NUUD for any resulting storage and other costs.
Upon request from NUUD, the Customer will furnish NUUD with available sales and depletion reports and details of all promotional and sampling programs with respect to the Products.
Article 7 - Inspection and complaints
Upon delivery of the Products, the Customer is obliged to carefully inspect, and verify whether the Products are defective. In case of discovery of a defect, the Customer is obliged to cease the use or sale of the Products immediately and inform NUUD of the defect via https://orders@nuud.com/ as soon as possible, but in no event later than 3 days after delivery, subject to forfeiture of rights. The Customer shall inform NUUD of any alleged defects by means of accurate, written statement, stating the damage or defect and where possible a photograph or video to enable NUUD to assess the complaint.Failure to inspect the Product(s) and inform NUUD within the stated time referred shall be conclusive evidence that NUUD has satisfactorily tendered delivery and that the Products delivered shall be deemed to conform in quantity and quality to the Order.
At the request of NUUD, the Customer is obliged to send the defective Product(s) to the NUUD warehouse, DDP in conformity with the Incoterms 2020 (address to be confirmed by NUUD).
Complaints regarded by NUUD as justified, only give the Customer the right to remedy of the delivered Product, delivery of what is missing, free replacement (unless the variation is to minor to justify this), credit note or refund, by NUUD of the invoice value for the delivered Product, such at the discretion of NUUD and exclusive of any dispatch costs.
Disputes between the Customer and NUUD regarding quality, delivery or any other complaint submitted by the Customer shall not entitle the Customer to suspend payment.
Return shipment of delivered Products is only possible if these are unused and undamaged, are in the original packaging and the relevant prior written permission has been obtained from NUUD, failing which the Customer will pay all costs to NUUD that are incurred in connection with the return shipment and making the relevant Products ready for transport again.
The Customer is obliged to inform NUUD about complaints of end users without delay and will give NUUD the opportunity to deal with this within a reasonable period. The Customer will provide NUUD with all relevant information and give full cooperation to NUUD for determining the cause of the complaints and the processing of these. Should the Customer not comply with this, any recourse action against NUUD will lapse.
If Parties, in joint consultation, agree to instigate a recall-action for the Products to mitigate (further) damages, NUUD will be liable for the (demonstrable) direct and reasonable costs incurred in connection with these measures, however limited to compensation for the (demonstrable) direct and reasonable costs with maximum of five percent (5%) of the total value of the respective Order(s) including the affected Products.
Article 8 - Transfer of title / Retention of title
All Products delivered by NUUD remain property of NUUD until such time the Customer has paid NUUD in full, including default claims on the part of the Customer.
The Customer is obliged to store Products under retention of title with the necessary care and recognisable as NUUD’s property and insure these properly. In the case of attachment of the Products that are the property of NUUD, the Customer is obliged to inform NUUD without delay and immediately inform the attaching party that the Products were delivered to the Customer under retention of title.
Without prior payment to NUUD of all outstanding invoices, Customer may not resell any Products to third parties, except as part of its normal business operations.
The Customer is not allowed to encumber any Products if the ownership of the Products has not been transferred to the Customer.
Article 9 - Warranties
NUUD warrants that the Products comply with Regulation (EC) No 1223/2009 on cosmetic products.
If the Customer distributes, sells, or leases the Products outside the European Union, it will be the responsibility of the Customer to ensure that the Products meet the statutory, safety and quality requirements as these apply in that country. The Customer indemnifies NUUD against and fully compensates NUUD for claims regarding statutory, safety and quality requirements, including claims based on product liability, that relate to such Products outside the European Union.
NUUD does not provide any warranties other then as stipulated in this article 9 and Customer indemnifies NUUD in this respect.
Article 10 - Limitation of liability
NUUD is only liable to the Customer for damage to the Product(s) supplied if and to the extent that this damage is the direct and immediate result of a shortcoming in the fulfilment of the Agreement by NUUD.
Notwithstanding anything to the contrary in the Agreement, NUUD’s total cumulative liability for any act or omission, whether in contract, at law (including negligence or strict liability), any legal or equitable theory or otherwise, shall not exceed the invoice amount of the relevant Product(s) evidenced in the Order confirmation(s) in the 6 months preceding the incident causing the damage, unless such damage has been caused by gross negligence or wilful misconduct of NUUD.
Any liability to the Customer ceases to apply if the Customer fails to notify NUUD of the existence of the defect within 3 days of having discovered the defect, in writing, to enable NUUD to investigate the damage.
NUUD can never be held liable for :
a - loss or damages because of the Customers own negligence, fault or other unlawful acts or omissions;
and/or
b - consequential or indirect loss, howsoever caused or arising, including but not limited to and whether directly or indirectly caused, any loss of profit (actual or anticipated), loss of use, loss of contracts, loss of opportunities, loss of revenue, cost of capital, loss of goodwill, or any indirect, incidental, special or consequential losses or damages arising from or in connection with its performance or non-performance under the Agreement and whether based upon contract, tort, or any other legal theory, and the Customer shall indemnify NUUD in that regard.
To the extent that a court determines that the limitation of liability. As meant in this Article cannot be invoked against a particular claim for damages by the Customer, NUUD’s liability for loss of property, damage to property, and bodily injury (including death) caused by the application of a particular Product shall in any event be limited to the amount actually paid out by NUUD’s insurer to NUUD in accordance with the insurance cover of that insurance policy for that particular type of loss or damage.
The Customer is obligated to indemnify, defend, and hold NUUD harmless for and from all claims of third parties for compensation of damages in connection with the delivered Product(s).
Article 11 - IPR
NUUD is the owner or licensee of any IPR vested in the Products. The Products may not be copied or otherwise (re)produced. Nothing in this Agreement or in the business relationship between the Parties shall constitute or be construed as constituting a transfer or assignment to the Customer of any property right, or any other right or interest in any IPR or other information, data or product owned by NUUD.
All IPR, technical, business, financial and other information the Customer obtains regarding NUUD and/or the Products, shall not be copied or disclosed or provided to any third parties or used in any other way by the Customer without the explicit prior written consent of NUUD, subject to an immediately payable penalty of € 50,000.00, without prejudice to NUUD’s right to claim damages and full compensation.
Article 12 - Force Majeure
NUUD shall not be liable for any failure or delay in performing its obligations under the Agreement to the extent that such failure or delay is caused by Force Majeure.
In case of Force Majeure, NUUD shall inform the Customer promptly, specifying the cause of Force Majeure and how it may affect its performance, and shall make best efforts to terminate or avoid as soon as practicable the Force Majeure circumstances. The Parties shall consult with each other to minimize all damages, costs, and possible other negative effects.
If the Force Majeure situation continues for over ninety (90) days, each Party has the right to terminate the Agreement in writing, subject to payment of the deliveries performed to date.
Article 13 - Protection of personal data
NUUD and the Customer will, at all times, observe the rules regarding the protection of personal data by virtue of current laws and regulations.
In so far as required by law, NUUD and the Customer will enter into a data processing agreement.
Article 14 - Amendments
NUUD shall reserve the right to unilaterally amend these Terms.
Amendments will come into effect 30 days after the Customer has been notified accordingly.
Article 15 - Assignment
Customer may not assign the rights and obligations under the Agreement to a third party without the prior written consent of NUUD, which consent shall not be unreasonably withheld or delayed.
NUUD may assign or subcontract its rights and obligations under the Agreement to third parties without the (prior) consent of the Customer.
Article 16 - Miscellaneous
The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all pre-existing agreements and understandings between them with respect thereto.
No waiver by either Party of a breach or default of the Agreement will be deemed a waiver by such Party of any subsequent breach or default.
If any term, covenant, or provision of the Agreement including these Terms is determined to be invalid or unenforceable, the invalidity or unenforceability thereof will not affect the remaining provisions of this Agreement, which will remain in full force and effect.
No terms shall survive the expiry or termination of the Agreement unless expressly provided.
The relationship between NUUD and the Customer is one of independent contractor and nothing in the Agreement shall be construed as creating any relationship of partnership, employment, joint venture, or agency between NUUD and the Customer.
The Parties do not intend that any term of the Agreement should be enforceable by any person who is not a party to the Agreement.
Article 17 - Applicable law and choice of forum
These Terms and the Agreements are governed by Dutch law. The applicability of the Vienna Sales of Goods Convention is explicitly excluded.
All disputes in connection with the Agreement including these Terms shall be submitted to the competent court in Amsterdam.
Amsterdam, October 26th, 2022