1. Mid Ocean Brands
These Terms and Conditions apply to all offers issued
by and on behalf of Mid Ocean Brands BV, having its office
and maintaining business premises at Barneveld, the
Netherlands (CoC number 09071860) (“Mid Ocean”) and
all agreements to be concluded between Mid Ocean and
another party (“the Buyer”), serving to allow Mid Ocean
to provide products and services (“the Delivery”), and to the
juristic acts underlying such agreements.
1.2 Any terms and conditions used by the Buyer do not apply.
These are expressly rejected.
2.Creation of the Agreement
2.1 Oral offers and undertakings will bind Mid Ocean only after
and to the extent that Mid Ocean has confirmed such
in writing. Any and all offers issued by Mid Ocean will
be without obligation, unless expressly stated otherwise
in writing. In the event that the Buyer has sent Mid Ocean
a statement containing an offer or acceptance electronically,
an agreement will be deemed to have been brought about
in the event that Mid Ocean has confirmed the Buyer’s
3.1 Prices are based on the type and scope of the Delivery,
as stated in Mid Ocean’s price lists (“Price Lists”). Prices are
Ex Works (Incoterms 2010) and exclusive of VAT.
3.2 Mid Ocean has the right to change the agreed-upon prices
after conclusion of the agreement or prior to delivery in the
event of any increases in the prices of cost-price factors,
such as fluctuations in exchange rates, raw materials and/or
wage costs, or, in case of any Government measures,
when such situations have occurred after the agreement
was brought about, but prior to delivery.
4.1 Unless expressly agreed otherwise in writing, delivery
will be effected Ex Works Mid Ocean (Incoterms 2010).
Notwithstanding the provisions laid down in Article 3,
a surcharge will be charged for the delivery of small
quantities of Products, which deliveries of small quantities
and surcharges have been specified in the Price Lists.
4.2 The Buyer is required to accept the Delivery when
it is delivered to it and to provide Mid Ocean with ample
opportunity to do so and render its co-operation to
Mid Ocean in this respect.
4.3 In the event that the Buyer refuses to take delivery or fails
to provide information or instructions, or otherwise fails
to render the co-operation required to take delivery of
the Delivery, Mid Ocean will be entitled to take any and all
measures deemed desirable by Mid Ocean in this respect
(such as storage with third parties) for the Buyer’s account
and risk, without prejudice to Mid Ocean’s right to claim the
purchase price or stipulated fee, or to deliver to a third party.
The additional costs and/or any damage arising for
Mid Ocean in this case may be recovered from the Buyer.
4.4 Any delivery dates or other terms stated by Mid Ocean are
only an indication and shall not be considered deadlines.
If the Delivery is not provided on time, regardless of whether
Mid Ocean has so notified the Buyer ahead of time,
Mid Ocean must be declared to be in default and be
granted a term which, according to it, is reasonable to fulfil
its obligations. Should Mid Ocean fail to comply with the
extended term, the Buyer will be authorised to dissolve the
agreement only if no Delivery has taken place.
Mid Ocean will not at any time be liable for any
consequential damage, including but not limited to the loss
of profits and/or incidental damage, as a consequence
4.5 Mid Ocean may execute any placed orders in parts.
In the event that orders are executed in parts, Mid Ocean
will be entitled to invoice each part separately.
4.6 Mid Ocean will be entitled to charge the costs of any
packaging separately. Packaging will not be taken back.
Should Mid Ocean be required to take back packaging
on the grounds of laws and/or regulations, the costs
associated with taking back or processing such packaging
will be borne by the Buyer.
5. Print Products
5.1 In the event that Mid Ocean receives orders for products
to be printed for the Buyer (“Print Products”), the Buyer will
be obliged to supply directly reproducible material of
a quality that is, in Mid Ocean’s reasonable opinion, good.
5.2 Mid Ocean will be required to submit a proof of Print
Products (“Proof”) prior to producing such Products only
in the event and to the extent that such has expressly
been agreed upon in writing upon the conclusion of the
agreement. In such cases, Mid Ocean will be required
to send the Buyer a Proof for approval. The Buyer will
be required to notify Mid Ocean of its approval
or disapproval within 24 hours of receipt of the Proof.
5.3 Minor departures of the Print Products from the Proof,
including but not limited to shades, logos and/or
dimensions, will not qualify as a defect on the part
of Mid Ocean.
5.4 If a delivery period was agreed between Mid Ocean and the
Buyer, this period will be extended with the period between
the request of the Buyer to produce a Proof, and the time
that the Proof was approved by the Buyer. A Proof will
be deemed to have been approved by the Buyer in the
event that the Buyer has not stated its disapproval within
five working days of receipt of the Proof.
5.5 Any and all costs in connection with the work to be carried
out by Mid Ocean for the Print Products will be invoiced
separately to the Buyer, unless expressly agreed otherwise
5.6 Mid Ocean will be entitled to deliver to the Buyer 5% more
or less of the number of Print Products stated by the Buyer
in the order and to invoice such to the Buyer.
6. Textile Products
6.1 In the event that Mid Ocean receives orders for textile
products whose colour, type and size, among other things,
are determined by the Buyer (“Textile Products”),
the Buyer may order a sample (“Sample”) of such Products.
The ordering of a Sample must be expressly agreed upon
by the Buyer and Mid Ocean in writing before or upon the
conclusion of the agreement. The Buyer will be required
to notify Mid Ocean of its approval or disapproval within
24 hours of receipt of the Sample.
6.2 Minor departures of the Textile Products from the Sample,
including but not limited to colour, size and/or logos, will not
qualify as a defect on the part of Mid Ocean.
6.3 A Sample will be deemed to have been approved
by the Buyer in the event that the Buyer has not stated
its disapproval within five working days of receipt
of the Sample.
6.4 Notwithstanding the provisions laid down in Article 11,
any and all possible claims to the effect that the Products
delivered to the Buyer do not conform to the agreement will
lapse in case the Buyer ordered a Sample and approved
it in accordance with Articles 6.2 and 6.3.
6.5 Any and all costs in connection with the work to be carried
out by Mid Ocean for the Textile Products will be invoiced
separately to the Buyer, unless expressly agreed otherwise
7.1 The Buyer shall make payment within 30 days of the date
of the invoice. The Buyer shall not be entitled to deduction,
suspension or settlement.
7.2 Without prejudice to the rights accruing to Mid Ocean
as ensuing from the law or agreement, the Buyer will
be in default and all of Mid Ocean’s claims will
be immediately payable in the event that the Buyer has
failed to pay any amount owed within the payment term
stipulated in Article 7.1. In that event, Mid Ocean will also
be entitled to interest at the statutory rate (as applicable to
trade agreements), plus two per cent, on the outstanding
amount until the moment of full payment.
7.3 Should the Buyer not have made a well-founded comment
on the amount of the invoice in writing within seven days
after the date of the invoice, it will be deemed to have
approved such amount.
7.4 If the Buyer fails to make timely payment, any and all
reasonable (collection) costs to seek satisfaction out
of court, including, in any case, the costs of debt-collection
agencies, bailiffs and lawyers, amounting to at least 15%
of the total amount owed, with a minimum of EUR 500,
exclusive of VAT, will be borne by the Buyer. This without
prejudice to the other rights accruing to Mid Ocean under
the law or these General Terms and Conditions.
7.5 The Buyer will be obliged to pay any and all costs incurred
by Mid Ocean as related to legal proceedings in which
judgment was fully or to a considerable extent rendered
against the Buyer. Such costs will in any case include the
costs of external experts, bailiffs and lawyers and such.
8.1 In terms of weight, size, number, colour, concentration,
composition, specific gravity, the Delivery may depart 5%
from that which has been agreed upon.
8.2 Samples and models will be provided to serve as indications
only. The Buyer cannot derive any rights from illustrations
in Mid Ocean’s catalogues and/or other advertising
or promotional material.
9. Permits, etc.
9.1 The Buyer will bear responsibility at its own expense and
risk for obtaining, on time and in the proper form, all permits,
concessions, licences and/or permissions, etc., as required
for delivery by Mid Ocean of the Delivery and otherwise for
the fulfilment by Mid Ocean of its obligations.
10. Retention of Title
10.1 The title to the Delivery will be transferred to the Buyer after
full payment has been received. The risk of the Delivery
is transferred at the moment of the Delivery.
10.2 As long as title to the Delivery has not passed to the Buyer,
the Buyer may not pledge the Products or grant any third
party any right in their respect.
10.3 The Buyer will be obliged to store the Products delivered
subject to the retention of title carefully and as Mid Ocean’s
recognisable property. It will also be obliged to insure such
Products adequately. The Buyer shall pledge any of its
claims on the basis of this insurance to Mid Ocean
on Mid Ocean’s first demand, as additional security for
Mid Ocean’s claims in respect of the Buyer.
10.4 In the event that the Buyer fails to fulfil any obligation
in respect of Mid Ocean or gives Mid Ocean good grounds
to fear that it may fail to fulfil such obligations in the future,
Mid Ocean will be authorised to repossess the Products
delivered subject to the retention of title, without prejudice
to its right to claim further damages. The Buyer undertakes
to co-operate. Any and all costs related to the repossession
will be borne by the Buyer.
11.1 Upon delivery, the Buyer must check if the Delivery complies
with the agreement. In the event that any defects and/or
shortages are noted, the Buyer shall promptly inform
Mid Ocean thereof in writing, stating good reasons.
The Buyer must notify Mid Ocean of any invisible defects
within two days of their discovery and in any case within two
days of the moment at which the Buyer should,
in reasonableness, have discovered such.
11.2 Having filed the complaint referred to above with
Mid Ocean, the Buyer will be required to render any and
all co-operation to Mid Ocean in investigating whether the
complaint is sound. In the event that the Buyer’s complaint
turns out to be unfounded, the costs of the investigation will
be borne by the Buyer.
11.3 In the event that Mid Ocean establishes that a defect or
shortage is concerned of which it was notified by the Buyer
on time, Mid Ocean will exclusively be required, at its option,
to replace the defective Products, to deliver the missing
Products, or to credit or pay back, in whole or in part,
the amount charged in connection with the defective item.
Should Mid Ocean decide to refund - part of - the purchase
price, the Buyer will first have to return the defective
Products to Mid Ocean.
11.4 The Buyer will not in any case be able to assert a claim
against Mid Ocean in the event that the Products have,
upon delivery, in whole or in part, been consumed, treated
or processed, or merged with other Products.
11.5 Any right to dissolve the agreement will lapse: a)
if notification is not effected on time, in accordance with
Article 11.1 or b) 12 months after delivery (6 months in case
of products without an electronic component).
12. Force Majeure
12.1 In the event that the Delivery is not possible in whole
or in part due to force majeure, Mid Ocean will be entitled
to suspend the Delivery. If this period lasts or is expected
to last more than three months, Mid Ocean will be
authorised to suspend or dissolve the agreement without
there being an obligation to pay damages in that event.
12.3 “Force majeure” on the part of Mid Ocean is in any case,
but not exclusively, defined as all circumstances as
a consequence of which compliance with the agreement
can no longer in reasonableness be required of Mid Ocean,
which circumstances will in any case include transport
problems, any default, in whole or in part, of Mid Ocean’s
suppliers, any default, in whole or in part, of third parties
engaged by Mid Ocean to execute the agreement,
restrictive Government measures, including the failure
to obtain a required permit, of any nature whatsoever,
a breakdown or interruption of the functioning of any public
utility company, a breakdown, interruption or termination
of the supply of raw materials, semi-finished products
and/or end-products, as well as any circumstance that
Mid Ocean could not in reasonableness have foreseen and
which Mid Ocean cannot influence.
13.1 Mid Ocean is only liable for damage that is attributable
to intention or gross negligence on its part, or that
is covered by Article 11.3.
13.2 Mid Ocean is not liable for any consequential damage or the
loss of profits of the Buyer.
13.3 The Buyer shall fully indemnify Mid Ocean in respect of any
and all claims related to any Products delivered or Services
provided to the Buyer asserted by third parties against
Mid Ocean on any basis whatsoever.
14. Provision of Services
14.1 In the event that Mid Ocean is to provide Services
in connection with the agreement, it shall exercise the
diligence of a prudent contractor. However, Mid Ocean will
not at any time guarantee the result of the Services
to be provided.
14.2 If a - timely filed - complaint in connection with the Services
provided or to be provided is justified, Mid Ocean will only
be required, at its option, to repair the defect, to provide the
Service again, or to credit the amount charged
in connection with the Service in whole or in part, in its
reasonable opinion, or pay such back in whole or in part.
14.3 Any and all claims in connection with any Services provided
will lapse five working days, at the latest, after the Services
in question were provided or should have been provided,
or as much earlier as ensues from the agreement.
14.4 The provisions laid down in Article 13 will apply equally
to any liability in connection with the Services to be provided
by Mid Ocean or in connection with any Services already
provided by it. Within this framework, the reference in
Article 13.1 to Article 11.3 is to be considered a reference
to Article 14.2.
15. Intellectual Property Rights
15.1 Mid Ocean declares that, to the extent that it can reasonably
know, the Delivery does not infringe the intellectual property
rights of third parties.
The intellectual property rights and copyrights in all
software, drawings, specifications, know-how and
other information (in the broadest meaning of the words)
provided by or on behalf of Mid Ocean rest with Mid Ocean.
The Buyer may not copy any such software, drawings,
specifications, know-how and other information of
Mid Ocean without Mid Ocean’s written permission.
The Buyer shall observe strict confidentiality with respect
to all of the information and know-how received from
Mid Ocean and the Buyer may not disclose any such
information and know-how to third parties without
Mid Ocean’s prior written permission. Neither may the
Buyer use such information and know-how in cases other
than those expressly provided for in writing pursuant
to an agreement to which these General Terms and
15.2 The Buyer may not copy any drawings, software,
stereotypes, templates, tools, etc., even if these were
manufactured in collaboration with or for the account
of the Buyer, and the goods produced with these, without
Mid Ocean’s prior written permission, or use such in a way
other than expressly provided for in writing pursuant to an
agreement to which these General Terms and Conditions
apply. Any templates and/or tools, etc., will remain the
property of Mid Ocean, even if these were manufactured
pursuant to an order placed by the Buyer and/or the
manufacturing costs were charged to the Buyer.
In the event that any intellectual property rights arise and/or
may be created in executing an agreement to which these
General Terms and Conditions apply, any such rights will
accrue to Mid Ocean and will be transferred to Mid Ocean
by the Buyer to the extent necessary.
15.3 The Buyer shall indemnify Mid Ocean against any and all
claims of third parties as ensuing from the infringement
of an intellectual property right with respect to the
manufacture, delivery or use of a Product or Service made
or provided as per the Buyer’s specifications.
Such indemnification will also apply if Mid Ocean is to
change an existing item or work on the Buyer’s instructions.
16.1 The Buyer guarantees that it will render any and all
co-operation to Mid Ocean should Mid Ocean decide,
for any reason, to remove any Deliveries sold from the
market or communicate warnings to buyers and/or
end-users in connection with Deliveries (“Recall”).
16.2 On Mid Ocean’s first demand, the Buyer shall sell and
deliver back to Mid Ocean any and all delivered Products
it has in stock in exchange for compensation of the price
charged to the Buyer if Mid Ocean so decides within the
framework of a Recall.
16.3 The Buyer shall provide Mid Ocean with any and all
information on time, in order to enable Mid Ocean to notify
buyers and/or end-users of a Recall on time.
16.4 The Buyer shall organise its business operations in such
a way that the information referred to in the preceding
paragraphs can be provided. The provisions laid down
in Directive 2001/95/EC on General Product Safety will
be taken as a basis in this respect.
17. Suspension and Dissolution
17.1 Without prejudice to Mid Ocean’s rights on the grounds
of the law, in the event that the Buyer fails to fulfil one of its
obligations in respect of Mid Ocean or Mid Ocean fears
that the Buyer may not fulfil its obligations in the future and
the Buyer is unable to provide adequate security for the
fulfilment of its obligations on Mid Ocean’s first demand,
Mid Ocean will have the right to suspend the - further -
execution of the agreement or agreements concluded with
the Buyer, or to dissolve any such agreement or agreements
in whole or in part. Such rights and powers will in any case
also accrue to Mid Ocean in one or more of the following
events: The Buyer changes its business structure, control
within the Buyer’s business is changed, the Buyer’s goods
are attached, the Buyer applies for a suspension
of payments, it is declared bankrupt or otherwise loses the
free disposal of its assets, it winds up its business, dies or,
if the Buyer is a company, is dissolved. Any right of the
Buyer to suspend will be excluded.
18. Applicable Law and Disputes
18.1 Dutch law will apply to all agreements between Mid Ocean
and the Buyer. The applicability of the United Nations
Convention on Contracts for the International Sale of Goods
is expressly excluded.
18.2 Any and all disputes will be settled by the competent court
in Amsterdam if the Buyer is located in a Member State
of the European Union or in Poland, Norway, Switzerland
or Iceland at the start of any proceedings. The foregoing will
not affect Mid Ocean’s right to submit a dispute to a court
that would have jurisdiction absent this clause.
If the Buyer is not located in a Member State of the
European Union or in Poland, Norway, Switzerland
or Iceland at the start of any proceedings, disputes will
be settled on the basis of arbitration in accordance with the
rules of the Netherlands Arbitration Institute [Nederlands
Arbitrage Instituut, or “NAI”]. Arbitration proceedings will
be conducted in the Dutch language in Amsterdam,
the Netherlands, by three arbitrators.