GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF REDSTAR SALES BV
1.1 . In this General Terms and Conditions, the following terms shall have the meaning set forth in this Article:
- “Agreement” refers to these General Terms and Conditions, together with the relevant offers or order confirmations issued by or agreements entered into by RedStar, containing the conditions and provisions for the sale and delivery of Products by RedStar to the Customer;
- “Customer” shall mean any natural or legal person entering into an Agreement with RedStar;
- “General Terms and Conditions” refer to these general terms and conditions of sale and delivery of RedStar;
- “Products” shall mean, amongst others, the products and all related documentation offered, sold and supplied by RedStar;
- “RedStar” shall mean REDSTAR Sales BV, a private limited liability company incorporated under the laws of the Netherlands, registered with the Dutch Chamber of Commerce under number 56868618 or any of its affiliated companies.
2.1 These General Terms and Conditions apply to all offers issued by RedStar and/or Agreements entered into between RedStar and a Customer and the execution thereof.
2.2 These General Terms and Conditions apply to the exclusion of general terms and conditions of purchase employed by the Customer. Deviating conditions or provisions shall only apply if and in as much as separately and expressly agreed upon in writing between RedStar and the Customer, for each individual Agreement.
2.3 The Customer with whom an Agreement has been entered into subject to these General Terms and Conditions shall agree to the applicability of the General Terms and Conditions to all further Agreements, unless otherwise agreed in writing between the parties.
2.4 RedStar shall at all times be entitled to amend these General Terms and Conditions. The new general terms and conditions shall enter into force upon notification thereof to the Customer. From the moment of notification of the new general terms and conditions to the Customer, the new general terms and conditions shall also apply to the already existing Agreements between RedStar and the Customer.
3. Offers, orders and agreements
3.1 All offers from RedStar shall be non-binding. Orders and the acceptance of offers by the Customer shall be irrevocable.
3.2 RedStar shall only be bound if it has confirmed the order in writing, or has started the execution thereof.
3.3 Inaccuracies in the order confirmation from RedStar must be notified in writing to RedStar within two (2) days following the date of the order confirmation, in default of which the order confirmation shall be considered as correctly and completely reflecting the Agreement between the parties and the Customer shall be bound thereby.
3.4 (Verbal) undertakings or agreements made by or with RedStar personnel shall only be binding upon RedStar if confirmed in writing.
3.5 These General Terms and Conditions shall apply in full to any amendments to the Agreement between the parties.
4.1 The Customer guarantees the correctness, completeness and reliability of the data and information issued to RedStar by the Customer or on the Customer’s behalf. RedStar shall not be required to check the correctness, completeness and/or reliability of the data issued to RedStar.
4.2 RedStar shall only be required to (further) implement the order and/or Agreement if the Customer has issued all data and information requested by RedStar.
4.3 If data and/or information necessary for the execution of the order and/or Agreement have not been made available to RedStar, or have not been made available on time or in accordance with the Agreement, or if the Customer fails to fulfil its obligations in some other manner, RedStar shall further have the right to charge the costs originating as a result, according to its standard rates.
4.4 If and in as much as RedStar suffers direct or indirect losses as a result of the fact that the data and/or information provided by the Customer are incorrect and/or incomplete, the Customer shall be required to fully compensate RedStar for those losses.
5.1 All statements from RedStar concerning quantities, quality, performance and/or other properties with regard to the Products are issued with the greatest possible care. RedStar can however not guarantee that no deviations will occur in that respect. Such statements shall therefore be considered approximations and are non-binding. Upon delivery of the Products, the Customer is required to check compliance with the quantities, quality, performance and/or other properties specified by or agreed with RedStar.
5.2 Illustrations, descriptions, catalogues, brochures, advertising materials, price lists and information and offers appearing on the website shall not be binding upon RedStar.
5.3 Minor deviations in colour and quality shall under no circumstances give rise to any complaint, refusal to accept the delivery of the Products or dissolution of the Agreement, or delay in payment of the price.
5.4 All requirements imposed by the Customer on the Products to be delivered and which deviate from normal requirements, must be specifically notified by the Customer upon entering into the Agreement with RedStar.
5.5 RedStar complies with all applicable EU, US, UN and national export control regulations prohibiting the sale of certain products and services to certain countries, individual companies and/or persons. Compliance with such export control regulations can never cause a default on the part of RedStar.
5.6 In the event that the Customer supplies RedStar’s Products to third parties, the Customer is obliged to strictly comply with all export control regulations referred to in Article 5.5.
6. Intellectual Property
6.1 All copyrights, model rights, trademarks rights, patent rights, breeders’ rights, portrait rights, domain name rights, trade secrets and other (semi-)intellectual property rights (“Intellectual Property“) relating to the delivered Products, the packaging and the names thereof, and relating to anything developed, designed, manufactured or supplied by RedStar shall accrue to and remain exclusively with RedStar or RedStar’s supplier. More specifically, RedStar is the sole owner and right holder to the Intellectual Property to the Products that may arise as a result of the performance of the Agreement by RedStar.
6.2 With respect to the Intellectual property, the Customer shall only receive a non-exclusive, non-transferrable, non-pledgeable, non-licensable license, restricted to what is necessary for the use of the Products for the intended purpose, and exclusively for its own use. Unless otherwise agreed upon by the parties, the Customer shall not be permitted to reproduce, change or amend the Intellectual Property or the Products to which the Intellectual Property pertains.
6.3 The Customer will not infringe the Intellectual Property.
6.4 In as far as necessary and in as far as the Intellectual Property does not already accrue to RedStar on the basis of the law, the Customer hereby (in advance) transfers all Intellectual Property to RedStar, free of charge, and hereby delivers that Intellectual Property to RedStar. If a transfer in advance is not legally possible, Customer shall transfer all Intellectual Property immediately following their establishment free of charge. Customer will provide RedStar all requested cooperation and will hereby grant to RedStar irrevocable and unconditional authority to fulfil all formalities necessary to have the Intellectual Property registered in the name of RedStar, including, but not limited to, the signing of all forms, deeds and agreements, without any costs arising for RedStar, as a consequence.
6.5 In as much as Intellectual Property can be acquired by application or registration, RedStar shall be exclusively authorized.
6.6 If a dispute arises between RedStar and the Customer concerning Intellectual Property, RedStar shall be assumed being the right holder, in the absence of evidence to the contrary from Customer.
7.1 The prices specified by RedStar or agreed with RedStar are Ex Works (Incoterms 2020) and excluding VAT and other government-imposed charges, as well as freight and packaging costs, unless expressly agreed otherwise by the parties in writing.
7.2 RedStar shall have the right to charge deposits for the packaging of the Products and to raise its invoices with the deposit costs accordingly. The deposits will be stated separately on the invoice.
7.3 If, following the offer and/or the conclusion of an Agreement, factors which determine the cost price including taxes, duties, import charges, exchange rates, wages, prices of goods and/or services which may or may not be obtained by RedStar from third parties, including prices of raw materials, transport costs and/or energy costs, are increased and/or altered, RedStar shall be entitled to duly adjust its prices.
8.1 The delivery times specified by and agreed with RedStar have been set approximately and may not be viewed as strict deadlines. Exceeding of a delivery time shall not require RedStar to pay compensation and shall not grant the Customer the right to not comply with or suspend any obligations arising from the Agreement, nor the right to terminate the Agreement. However, the Customer is entitled to terminate the Agreement if and insofar as RedStar has failed to execute the order within a reasonable period, after being notified in that respect by the Customer. In that case, RedStar shall not be required to pay any compensation.
8.2 The delivery time is based on the working conditions applicable of entering into the Agreement and on the timely delivery of the goods and/or services of third parties required by RedStar for complying with the Agreement. If, as a result of a change to working conditions and/or late delivery of goods and/or services required by RedStar, a delay occurs, the delivery time shall be extended in accordance with the delay.
8.3 If a delay occurs on the part of RedStar as a result of non-compliance by the Customer with any obligation arising from the Agreement or cooperation demanded of the Customer with regard to the execution of the Agreement, the delivery time will be extended by the duration of this delay.
8.4 RedStar will deliver the Products Ex Works (Incoterms 2020). If, at the Customer’s request, RedStar undertakes the transport of the Products to the Customer or has transport undertaken, RedStar shall do so at the Customer’s risk and expense. The transfer of risk will take place Ex Works.
8.5 If the Customer fails to collect the Products or to have the Products collected or does not accept the Products on the agreed delivery date or within the agreed delivery period, RedStar shall be entitled to store the Products at the Customer’s risk and expense, for as long as RedStar considers desirable.
8.6 RedStar is authorized to execute the Agreement in parts and to demand payment for that part of the Agreement that is executed.
9. Force majeure
9.1 If RedStar is prevented from complying with the Agreement due to force majeure, RedStar shall be entitled to suspend the execution of the Agreement. In that case, the Customer shall not have any right to compensation of damages, costs and/or interest.
9.2 Force majeure shall, amongst others, be taken to mean: war, civil war, civil unrest, extreme weather conditions, fire, flooding, accident, staff illness or strike, epidemic or pandemic (including the Covid-19 pandemic) and/or governmental measures adopted in the context thereof, business disruption, stagnation in transport, power failure, cyber terrorism or similar cyber-attacks, security incidents, intentional or accidental corruption or loss of data, disrupting legal provisions, import and export restrictions, problems in production or transport of the Products unforeseen by RedStar, late delivery of goods and/or services by third parties engaged by RedStar and other circumstances beyond the control of RedStar.
9.3 In the event of a force majeure situation, RedStar shall be authorized to terminate the non-executed part of the Agreement by written notice to the Customer. If the force majeure situation lasts longer than four (4) weeks, the Customer shall also be authorized to terminate the non-executed part of the Agreement by written notice to RedStar.
9.4 If, at the start of the force majeure situation, RedStar has already partially fulfilled its obligations or is only able to partially fulfil its obligations under the Agreement, RedStar shall be entitled to separately invoice the Products or parts thereof that have already been delivered. The Customer shall be required to pay this invoice as if it related to a separate agreement.
10. Defects and complaints
10.1 RedStar warrants the sound nature of the delivered Products in accordance with the reasonable expectations of the Customer on the basis of the Agreement. If defects occur in the Products delivered by RedStar, RedStar will, in as far as possible and at its own discretion, repair these defects (or have them repaired), offer a reasonable price reduction or redeliver an equal Product to the Customer.
10.2 Any defects occurring in relation to the Products delivered by RedStar as a result of one or more of the following situation(s), shall not be covered by the warranty as laid down in Article 10.1:
- normal wear and tear of the Products;
- use of the Products for any purpose other than the intended purpose of the Products;
- incorrect and/or improper storage, processing, care or use of the Products by the Customer or a third party engaged by the Customer;
- any storage, processing, care or use of the Products by the Customer or a third party engaged by the Customer, contrary to the (verbal) instructions of or on behalf of RedStar, the information laid down in the Agreement or any documentation provided by RedStar to the Customer in relation to the Products;
- vandalism, influence of weather or other external causes.
10.3 The processing and/or (further) cultivation of the Products by the Customer shall be at the Customer’s risk and expense. Customer indemnifies RedStar against all claims from third parties arising out of or as a result of the processing and/or (further) cultivation of the Products delivered by RedStar.
10.4 Minor deviations in the Products cannot be qualified as defects and must be accepted by the Customer. Deviations which, taking into account all relevant circumstances, can reasonable have no or only a minor influence on the user value of the Products shall at all times be considered as minor deviations. If the quantity of the delivered Products deviates less than 3% compared to the agreed amount between the Parties, the deviation in quantity shall constitute a minor deviation in the meaning of this Article.
10.5 Immediately upon receipt of the Products, Customer shall inspect the delivered Products, in default of which any right to complaint, replacement and/or warranty shall expire. Any complaint relating to the quantity and/or quality of the Products delivered and/or transport damage must be immediately, but in no event later than twenty-four (24) hours, notified by Customer to RedStar, in default of which the Products are deemed to be delivered in conformity with the Agreement.
10.6 The Customer must notify RedStar of any complaints about the Products and/or the implementation of the Agreement within eight (8) days after the Customer has discovered the defect or should reasonably have discovered the defect, in default of which any claim against RedStar shall expire.
10.7 In the event of a complaint by the Customer, Customer is required to offer RedStar the opportunity to inspect the Products and identify the Defect. The Customer is required to keep the Products about which a complaint had been made available for RedStar, in default of which any claim against RedStar shall expire.
10.8 Return of delivered Products to RedStar shall only be permitted following prior written approval and instructions from RedStar. The Products shall at all times remain at the Customer’s risk and expense. RedStar shall only be held to reimburse the costs of transportation if and insofar as it is determined that RedStar failed to fulfil its obligations under the Agreement.
10.9 Any defects relating to a part of the delivered Products shall not give the Customer the right to reject or refuse the entire batch of delivered Products.
10.10 Complaints shall not suspend the payment obligations of Customer under the Agreement.
11. Reservation of ownership
11.1 RedStar reserves the ownership of the Products delivered and to be delivered, until all of its claims in respect of the Products delivered and to be delivered have been settled in full by the Customer.
11.2 If the Customer fails to fulfil its payment obligations, RedStar shall be entitled to retrieve the Products belonging to RedStar (or to have them retrieved) from the location where the Products are held, at the Customer’s risk and expense. In this framework, RedStar shall be entitled to enter the business premises of the Customer.
11.3 The Customer is not entitled to pledge or transfer ownership of the Product not yet paid for. The Customer is required to store the Products delivered subject to retention of title with the necessary care, and recognisably as the property of RedStar. In that respect, Customer shall be held to properly insure the Products against theft, vandalism, explosion, fire, flood and extreme weather conditions.
12.1 RedStar shall to the best of its ability strive to achieve the intended result with its advice or other means of information providing, but shall offer no guarantee whatsoever in that respect. All advice and other information provided by RedStar shall be considered as non-binding information.
12.2 The advice and other information provided by RedStar is intended exclusively for the Customer. Third parties cannot derive any rights from that advice or information.
12.3 Without prior written approval from RedStar, Customer is not permitted to make the content of the advice and other information provided by RedStar public, or in any other way make it available to third parties.
13.1 Unless otherwise agreed in writing, invoices from RedStar must be paid within fourteen (14) days following the invoice date, in the currency specified in the invoice and exclusively in the manner indicated in the invoice.
13.2 RedStar shall at all times be entitled to demand full or partial advance payment and/or otherwise obtain security for payment.
13.3 RedStar is entitled to separately invoice part deliveries.
13.4 Customer waives any right to suspension and set-off and shall acquire no right of retention to the Products. RedStar is at all times authorized to set off any amount it owes to the Customer against that which the Customer and/or the Customer’s affiliated companies owe to RedStar, regardless of whether these amounts are already due and payable.
13.5 If no timely payment is received, Customer shall, without further notice of default from RedStar being required, owe interest on the invoice amount of 3% per month, calculated from the due date up to the date of payment, whereby part of a month shall be considered as a full month and without prejudice to the right of RedStar to demand full payment.
13.6 All costs relating to the collection of payment by RedStar shall be at the Customer’s expense. Extrajudicial collection costs shall be at least 15% of the amount to be collected, with a minimum of EUR 20,00.
13.7 The entire invoice amount shall be immediately and fully payable in the event of late payment of an agreed instalment on the due date, as well as if the Customer is declared bankrupt, requests a (provisional) moratorium, is made subject to the statutory debt management scheme (WSNP) and/or if any attachment is imposed on the Customer. If one of the above situations occurs, Customer is required to immediately duly inform RedStar thereof.
13.8 Any payments made by the Customer shall serve first to settle the costs payable, then to settle any interest payable and then to settle the longest outstanding invoices, even if the Customer specifies that payment relates to a later invoice.
14.1 Once placed, a Customer may not cancel an order and/or terminate an Agreement with RedStar. If the Customer nonetheless fully or partially cancels an order and/or terminates an Agreement with RedStar, Customer shall be required to reimburse RedStar for all costs reasonably related with the execution of the order or Agreement and the loss of profit incurred by RedStar.
15.1 Customer shall only be entitled to resell the delivered Products, if:
- the Products are resold in the original packaging provided by RedStar;
- Customer imposes the same obligations on its customers as the obligations that arise from these General Terms and Conditions for Customer.
16. Product recall
16.1 In the event that the Customer discovers or becomes aware of a defect in the delivered Products that (might) constitute(s) a danger to the human health, Customer shall immediately notify RedStar thereof by telephone and in writing via email@example.com. The notice shall include the following information:
- the name of the Product;
- the number of the batch;
- the delivery date;
- a specification of the defect;
- all other information that can reasonably be important in relation to the defect and the measures to be taken by RedStar in that respect.
16.2 Upon notification to RedStar of a defect in the meaning of Article 16.1, parties shall enter into consultations regarding the measures to be taken in that respect. These measures can include the suspension of cultivation and/or delivery of the defective Products or the Products in which the defective Products are processed into, the freezing of stock, regardless of the party which keeps the Products in stock, and/or product recall. RedStar shall at all times be entitled to determine whether measures will be taken, which measures will be taken and the execution thereof at its own discretion.
16.3 Without prejudice to these General Terms and Conditions, Customer shall reasonably cooperate with the execution of all measures as determined by RedStar in accordance with Article 16.2 and to bear the costs in relation thereto.
17. Liability and indemnification
17.1 Beyond the provisions of Article 10.1, Customer shall have no claim whatsoever against RedStar for defects with regard to the Products delivered by RedStar. As a consequence, RedStar shall not be liable for direct or indirect losses, including business losses, intangible losses, lost income, loss of profits, stagnation losses, harm to reputation and/or any other consequential damages, due to whatever cause, except in the case of wilful intent or gross negligence on the part of RedStar.
17.2 RedStar shall also not be liable in the meaning of Article 17.1 for actions by its employees or other persons within its control, including wilful intent or negligence on the part of these persons.
17.3 RedStar shall not be liable for the advice or recommendations given by RedStar to the Customer, unless this advice or recommendation is explicitly part of a specific Service. In the event of a specific Service, the limitation of liability as included in this Article shall apply. The Customer indemnifies RedStar for all claims from third parties resulting from or in connection with the advice or recommendations given by RedStar.
17.4 Customer shall indemnify RedStar, its employees and third parties engaged by RedStar for the execution of the Agreement against any claim from third parties, including claims based on product liability in connection with the execution of the Agreement by RedStar, irrespective of the cause, and against any resultant costs for RedStar.
17.5 Damage to the Products caused by damage or destruction of packaging of the Products shall be at the Customer’s risk and expense.
17.6 In all cases where Customer is required to pay compensation, this compensation shall never exceed the invoice amount for the Products delivered as a result of or in connection with which the damage was caused. If the damage is covered by the business liability insurance or RedStar, the compensation shall furthermore never exceed the amount actually paid out by the insurer in the case in question.
17.7 Any claim against RedStar, unless recognized by RedStar, shall lapse through the simple passage of twelve (12) months following the occurrence of the claim.
18. RedStar personnel
18.1 Without RedStar’s prior written approval, the Customer shall not be permitted to enter into an employment contract with a person who is employed at RedStar or a person who was employed at RedStar in a previous period of twelve (12) months or to have this person carry out work on behalf of the Customer in any other way, in as much as this work is not carried out on the basis of an agreement entered into with RedStar.
18.2 The prohibition in this Article shall apply from the date of the first Agreement between RedStar and the Customer and shall continue to apply until twelve (12) months following the execution of the last order issued to or Agreement entered into with the Customer.
18.3 In the event of violation of the prohibition included in this Article, Customer shall owe to RedStar a penalty of EUR 10,000.00 per violation and of EUR 2,500.00 for each day that the violation continues, without prejudice to the rights of RedStar to claim fulfilment of the Agreement by the Customer and to demand full compensation for all losses caused by the violation.
19. Personal data protection
19.1 In collecting and (further) processing personal data of data subjects in the framework of the Agreement, RedStar wil comply with the obligations and shall take adequate protective measures as arising from the General Data Protection Regulation (GDPR), the GDPR Implementation Act and, from the moment it comes into effect, the ePrivacy Regulation and all related legislation and regulations.
19.2 If, in its judgment, RedStar must be considered as a data processor in the meaning of the GDPR, the Customer will, upon RedStar’s first request and in addition to the provisions in this Article, enter into and sign a written data processing agreement with RedStar, in accordance with the template to be supplied with RedStar.
19.3 The Customer indemnifies RedStar against all claims from third parties (including, but not limited to, data subjects and governmental authorities), as well as (financial) administrative sanctions and costs (including lawyer’s fees) relating to these claims, that arise from a violation by the Customer of any personal data protection laws.
20.1 If the Customer acts on behalf of one or more other parties, without prejudice to the liability of those others, the Customer shall be liable to RedStar as if it itself were the Customer.
20.2 If RedStar enters into an Agreement with two or more natural or legal persons, all Customers shall at all times be jointly and severally liable for the entire Agreement in respect of RedStar.
20.3 If RedStar enters into an Agreement with a company in formation, the founders shall remain jointly and severally liable for the entire formation following the confirmation of the Agreement.
21. Applicable law and competent court
21.1 These General Terms and Conditions, as well as any Agreement between RedStar and the Customer to which these General Terms and Conditions apply, are subject to Dutch law.
21.2 The United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention 1980) shall not apply to these General Terms and Conditions, nor to the Agreement(s) between RedStar and the Customer to which these General Terms and Conditions apply, and is expressly excluded.
21.3 The place of execution of the Agreement shall be the place where RedStar has its statutory seat.
21.4 All disputes between RedStar and the Customer will be exclusively submitted to the competent court of the District Court the Hague, location The Hague, the Netherlands. In derogation of this provision, RedStar shall at all times be entitled to submit a dispute or claim to the competent court in the location where Customer has its statutory seat or actual place of business.
22. Final provisions
22.1 The nullity or voidability of any provision of these General Terms and Conditions or of any Agreement to which these General Terms and Conditions apply will not affect the validity of other provisions. RedStar and the Customer are required to replace any provisions that are null and void with provisions that are valid, and which as far as possible reflect the intention of the null or void provision.
22.2 The Dutch text will be decisive for purposes of interpretation of these General Terms and Conditions.
Version, April 2022