“Agreement”: Each agreement under which Colourful Rebel agrees to sell and deliver Goods to Customer in the capacity of partner, supplier and/or vendor and which is subject to these General conditions of Delivery;
“Colourful Rebel”: Colourful Rebel B.V. or an affiliated company, each a user of these General Conditions of Delivery;
“Customer”: Any person or legal entity that places orders with Colourful Rebel, requires a quote for an order or that requires Colourful Rebel to deliver goods and / or that enters into an Agreement with Colourful Rebel and / or that negotiates with Colourful Rebel on the supply and delivery of Goods;
“General conditions of
Delivery”: The General Terms and Conditions of Delivery of Colourful Rebel B.V. (as most recently filed with the Chamber of Commerce for Amsterdam);
“Goods”: Goods that Colourful Rebel delivers to Customer under the Agreement;
“Parties”: Colourful Rebel and the Customer.
These General conditions of Delivery cover, and form integral part of, all offers, oral and written, Agreements and the performance thereof and negotiations thereon, all further agreements resulting there from or connected thereto, including additional orders, any action taken to prepare an Agreement, orders and the confirmation and execution of those orders, the supply and delivery of any Goods or any kind of service to the Customer and all other legal relationships between Colourful Rebel and the Customer.
The applicability of any general terms and conditions used by a Customer is hereby expressly rejected.
Contrary to the provisions of the preceding sub-section, terms and conditions of the Customer may be applicable subject to express and unambiguous written consent from Colourful Rebel. A Customer that has previously contracted with Colourful Rebel on other terms and conditions agrees to the applicability of these General conditions of Delivery to subsequent Agreements with Colourful Rebel.
These General conditions of Delivery are not applicable in the event that Colourful Rebel acts as purchaser of goods and/or services vis-a-vis the Customer. In that case the general terms and conditions of purchase of Colourful Rebel apply.
Offer and acceptance
All offers to enter into an Agreement made by Colourful Rebel are without prejudice, unless the offer or quotation includes a period for acceptance. Colourful Rebel is not bound by an offer or a quotation if the Customer must reasonably understand that the offer or quotation contains an obvious mistake or error. If Colourful Rebel and Customer have agreed on a currency other than euro, exchange rate changes with respect to the euro will be for the risk and account of the Customer.
Offers and quotations made by Colourful Rebel expire after 5 working days, unless Colourful Rebel expressly stipulates otherwise.
Offers and quotations can only be accepted by the Customer in writing, unless Colourful Rebel expressly permits oral acceptance.
An Agreement shall only be deemed to be concluded upon (i) written confirmation by Colourful Rebel or the Customer of the oral agreement reached between Colourful Rebel and the Customer, provided that the other party does not object to any of the key terms stated in said written confirmation within a period of 7 days; (ii) a quotation or confirmation being signed for approval by Colourful Rebel and the Customer; or (iii) upon the start by Colourful Rebel of its performance under the Agreement in a way that is discernible to the Customer, unless the Customer immediately objects in writing.
Orders and changes to orders by Customer shall only bind Colourful Rebel if they have been confirmed in writing by Colourful Rebel. Colourful Rebel is entitled to refuse any order, including additional orders, without any explanation and without being liable for any damages that directly or indirectly result from such refusal.
The scope of the obligations of the parties is contained exclusively within the order confirmation as drafted by Colourful Rebel, unless specifically agreed otherwise in writing.
Upon Colourful Rebel’s first request, Customer shall return all documentation and samples made available to it in relation to an offer or quotation to Colourful Rebel.
Prices and payment
Unless otherwise agreed to in writing, all prices quoted for the Goods and charges that Colourful Rebel invoices, are calculated on an Ex Works basis, from Oosterhout, the Netherlands (EXW, Incoterms 2010).
The Customer must pay all invoices of Colourful Rebel, with the exclusion of the Customers’ right of set-off or postponement, within 30 days of the date of the invoice in the way as indicated by Colourful Rebel and in the currency as set out on the invoice. The obligation for the Customer to pay shall continue to exist, even if the Customer has reached a third party arrangement in respect of payments and / or engages third parties for the payments.
Colourful Rebel is entitled to send invoices by e-invoicing, in accordance with the applicable legal requirements. Customer accepts the option of Colourful Rebel to use e-invoicing. By accepting the option of e-invoicing, Customer also accepts that it shall no longer receive paper invoices from Colourful Rebel.
The Customer is deemed to have accepted the invoice if it has not objected to the same in writing within 10 days of the date of the invoice.
Colourful Rebel may at its sole discretion require, either at the time of conclusion of the Agreement or at any later point in time during the term of the Agreement, that the Customer shall provide an adequate form of security such as a bank guarantee, pay a deposit, or provide any other appropriate form of security to guarantee compliance with its obligations under the Agreement. If Colourful Rebel demands security from the Customer, Colourful Rebel may postpone its (further) performance of the Agreement until such security has been provided.
The Customer shall be in default by operation of law, without the need to be served with any demand or notice of default, merely by failing to make payment in full within the specified term. If payment is not received or not received in full by Colourful Rebel within the specified term, Customer is liable for the annual statutory commercial interest rate from the date that the sum owed becomes due and payable until such time as payment is made by the Customer in full, whereby part of a month shall be regarded as a full month, notwithstanding any other rights of Colourful Rebel. In the event that Customer is in default, all claims on the Customer shall become immediately due and payable.
If Customer is in default on the performance of its obligations, then Customer shall be liable for all reasonable costs for the extrajudicial debt collection. The extrajudicial debt collection costs being a minimum of 15% of the amount due by the Customer to Colourful Rebel with a minimum of € 125, increased by the interest as stipulated in the previous clause. If the Franchisee fails to make timely payment, it shall also be liable to Colourful Rebel for all judicial and extra-judicial costs actually incurred including but not limited to the costs of lawyers and other experts.
All payments by Customer, shall be used first to pay for the owed interest, then for debt collection costs, excluding the judicial costs. Only after payment of these sums, a payment by Customer shall be used to pay for the owed sum, whereby the oldest invoice will be settled first.
If the Customer fails to comply with its (payment) obligations under the Agreement in part or in full, or if it fails to comply with a request to pay in advance or provide an adequate guarantee, Colourful Rebel is entitled to suspend the performance of its obligations under the Agreement or, if the Customer is clearly unwilling to comply with its obligations, to terminate the Agreement.
The total owed sum is due and payable immediately upon failure to promptly pay an agreed payment on its due date, or if the Customer is declared bankrupt, applies for suspension of payments, is put under receivership, is subjected to attachment or liquidates its business.
Colourful Rebel is entitled to set quality standards regarding technology (speed, stability, accessibility), trademark use (style, image), the need for quality marks or guarantees and the applicability of specific conditions with respect to any website where its Goods are sold.
Customer acknowledges that Colourful Rebel spends the highest possible attention to building and maintaining the brand ‘Colourful Rebel’ (‘the Brand’), and shall therefore take into account the carefully maintained image of the Brand during online resale of the Goods. Customer shall always include the Brand logo when Goods are shown on his website, and shall endeavor to refrain from including on the website any associations or context that could be harmful to the Brand or the Goods.
Cancellation of Orders
Orders can be cancelled by the Customer in writing within eight (8) days of the date of Colourful Rebel’s order confirmation.
The Customer owes Colourful Rebel a compensation of 50% of the total purchase price which shall be payable on first demand, notwithstanding the right of Colourful Rebel to receive full compensation of damages, if the Customer:
cancels the placed orders after the expiration of the term mentioned in clause 6.1;
does not entirely or in due time purchases the placed orders or in case of partially purchase of the placed orders.
The Customer indemnifies Colourful Rebel in respect of any claim by a third party contracted to perform any part of the Agreement for loss, including future loss, suffered by such third party as a result of cancellation by the Customer.
Delivery and Transport
Unless otherwise agreed, delivery of the Goods will take place Ex Works at the premises of Colourful Rebel in Oosterhout or upon delivery of the goods to the Customer, whether or not through the involvement of any third party. All delivery conditions are in accordance with Incoterms 2010.
The Goods are deemed to have been delivered Ex Works, at the premises of Colourful Rebel in Oosterhout, at the moment when they are made available on Colourful Rebel’s property for collection by, or on behalf of, the Customer, or at such earlier time when they are actually collected by, or on behalf of, the Customer. In the event that Goods are to be transported to the Customer by a third party, they are deemed to have been delivered at the time they are transferred to such third party, being before they are actually loaded. In the event that the Goods are transported by Colourful Rebel, they are deemed to have been delivered at the moment that they actually arrive at the Customers place of business or such other agreed location for delivery.
The shipment, loading and unloading of the Goods by Colourful Rebel or a third party, including a specialist haulage company, shall be at the risk and expense of the Customer, unless specifically agreed otherwise in writing.
Colourful Rebel is entitled to store the Goods at the risk and expense of the Customer if the shipment of the Goods cannot go ahead for reasons beyond the influence of Colourful Rebel. Irrespective of the above, Colourful Rebel reserves the right to receive payment of the purchase price in full.
The Customer must accept the Goods from Colourful Rebel or from a third party engaged by Colourful Rebel at the moment that either of them delivers the Goods to the Customer or, in the case of delivery Ex Works, when the goods are made available to the Customer.
All deadlines agreed by Colourful Rebel for performance of the Agreement are determined by Colourful Rebel to the best of its knowledge on the basis of information known to Colourful Rebel when entering into the Agreement and are never fatal deadlines. Colourful Rebel shall use its reasonable efforts to meet all agreed deadlines.
Mere expiry of a deadline shall not constitute an event of default of Colourful Rebel. Colourful Rebel shall only be in default for any such expiry after having been served a notice of default by the Customer. In such notice the Customer shall offer Colourful Rebel a reasonable deadline to perform the Agreement. Should Colourful Rebel foresee to exceed any agreed deadline, Colourful Rebel and the Customer shall consult one another as soon as possible. The Customer is however not entitled to claim any damages or a penalty.
Only after written acceptance of an order by Colourful Rebel, after Customer has made all information and materials required to perform the Agreement available to Colourful Rebel and receipt by Colourful Rebel of any agreed pre-payment or security, a delivery period shall commence.
If delivery of the ordered Goods is not made in time by Colourful Rebel due to circumstances beyond the influence of Colourful Rebel including, but not limited to, late delivery of the Goods to Colourful Rebel by the manufacturer, then the delivery period shall be automatically extended by the length of the delay. Customer is in no event entitled to cancel the order or terminate the Agreement when the late delivery is due to some direct or indirect involvement of the manufacturer of the Goods. Colourful Rebel is entitled to make part-deliveries of the Goods ordered by the Customer where necessary. Each part delivery is deemed to be a separate delivery, subject to these General conditions of Delivery.
The Customer may not return the Goods to Colourful Rebel without the specific prior written consent of Colourful Rebel. The Customer may not return Goods that are part of an additional order that is delivered from stock of Colourful Rebel.
Retention of Title
All Goods delivered under the Agreement shall remain the property of Colourful Rebel until the Customer has properly performed all its obligations under the Agreement.
Goods delivered by Colourful Rebel, subject to the retention of title under this clause, shall not be resold and shall never be used as payment. The Customer shall not be entitled to pledge or otherwise encumber Goods which are subject to the retention of title.
The Customer shall always do all that is reasonably necessary to protect the property rights of Colourful Rebel.
If third parties seize the Goods delivered subject to retention of title or want to establish or exercise rights thereon, the Customer shall be obliged to inform Colourful Rebel about this immediately.
The Customer shall be obliged to insure and keep insured the Goods delivered subject to retention of title for fire, explosion- and water damage and theft and provide the policy of this insurance for review at Colourful Rebel’s first request. In the event of any payment under the insurance, Colourful Rebel will be entitled to receive these amounts. To the extent necessary, the Customer commits itself in advance towards Colourful Rebel to cooperate with all that shall (appear) necessary or desirable for this.
In the event Colourful Rebel wants to exercise its property rights set out in this clause, the Customer grants in advance unconditional and irrevocable permission to Colourful Rebel and third parties appointed by Colourful Rebel to enter all the places where the property of Colourful Rebel is located and to take these goods back.
Save for changes as announced by Colourful Rebel to the Customer in writing before delivery of the Goods and the exclusions and limitations set out in this clause, Colourful Rebel warrants that the Goods are substantially in conformity with the sample of each Good presented to the Customer by Colourful Rebel.
Warranties given by Colourful Rebel with regard to the Goods exclude:
Permissible differences in the Goods, including, but not limited to, colour, size, finish and other quality standards, shall be accepted by the Customer and shall not entitle the Customer to suspend its obligations under the Agreement, to terminate the Agreement or pay a reduced purchase price.
If the Customer receives a discount for prompt payment, the Customer is not entitled to return any individual defective item of the ordered Goods to Colourful Rebel for any reason.
The Customer shall organize its business in such a way that the Customer and Colourful Rebel are both able to comply with their respective obligations under applicable law in respect of product safety and recall. The Customer shall promptly follow up all instructions given by Colourful Rebel if Colourful Rebel is required or decides, at its sole discretion, that (some of) the Goods be taken out of the market, or that customers have to be warned or that any other measures should be taken in the light of any recall or other product safety matters, also if such instructions entail that the Customer should cease the sale of the Goods. If the Customer is under an obligation to take any action regarding a recall of Goods on the basis of any applicable legislation, then the Customer shall timely inform Colourful Rebel in that respect and ask Colourful Rebel for any (further) instructions. The Customer is not obliged to follow up any of Colourful Rebel’s instructions if such instruction would be in violation of any applicable rules or regulations.
Colourful Rebel will not be obliged to perform any obligation in relation to the Customer if it is prevented from doing so as a result of circumstances which are not the result of culpability nor under law, legal act or general opinion of trade are for Colourful Rebel’s account.
In these General conditions of Delivery, force majeure shall be defined – in addition to the meaning given to this term by statutory and case law – as the occurrence of any and all such foreseen or unforeseen external factors beyond Colourful Rebel’s control as will impede Colourful Rebel from performing its obligations. Force majeure shall in any event include events such as war, armed conflict, terrorist attacks, rebellion, riots, nuclear reaction, Acts of God, volcano eruptions, fire, strikes or other industrial action by personnel of Colourful Rebel or its suppliers, excessive absenteeism, transport problems, power outages, or any power disconnection or closing of the premises or the buildings where Colourful Rebel undertakes its activities.
If any breach of the Agreement cannot be attributed to either party due to the occurrence of an event of force majeure, the mutual obligations of the parties shall be suspended until such time as compliance with said obligations can be reasonably required again.
If any such suspension as a result of force majeure exceeds a period of 2 months, either party may terminate the Agreement immediately without prior notice of default or court order, and without being in any way liable to pay the other party any form of compensation.
Insofar that Colourful Rebel has, at the time of occurrence of the event of force majeure, already performed part of its obligations under the Agreement and this partly performed part has a separate value, Colourful Rebel will be entitled to invoice this already performed part separately. The Customer will be obliged to pay this invoice as if there was a separate agreement.
Intellectual Property Rights
Unless expressly agreed otherwise, the designs, drawings, illustrations, descriptions, models and all other items protected by intellectual property rights that are supplied by or on behalf of Colourful Rebel remain in the ownership of Colourful Rebel, whether they have been supplied to the Customer or any third party. Any duplicating, copying, disclosure or supply of the same to any third party requires the specific written consent of Colourful Rebel.
All intellectual property rights to designs, drawings, illustrations, descriptions, models and all other items (including copyright, model rights, etc.) belong to Colourful Rebel.
Any breach of this provision renders the Customer liable to a fixed penalty of € 50.000, to be increased with € 500 for each day that the breach continues, without prejudice to the right of Colourful Rebel to claim full compensation for direct and indirect loss.
Insofar as Colourful Rebel develops a product specifically for the Customer or carries out some other specific instruction, the intellectual property rights thereto belong to Colourful Rebel unless there is any specific written agreement to the contrary no later than at the time the Agreement is drawn up.
Either party may rescind the Agreement only if the other party has defaulted on a material obligation under the Agreement and, having been served notice of default containing a full and detailed description of the event of default and also providing for a reasonable grace period, fails to remedy said default.
Either party may terminate the Agreement, or any part thereof, with immediate effect by giving written notice if the other party starts negotiations with any of its creditors or takes similar action with a view to rearrange its debts or any part thereof, or enters into a debt settlement agreement with its creditors, or applies for a suspension of payments, or applies for bankruptcy or is declared bankrupt. A party which terminates the Agreement on this basis shall in no circumstance be obliged to reimburse any funds already received or to pay any form of compensation.
In deviation from the non-mandatory rules of law that are in place, the Customer may only terminate an Agreement for the provision of services in any of the events stipulated in these General conditions of Delivery.
The Customer shall check the condition of the Goods or services immediately upon their supply, as specified in clause 7 sub 2 of these General conditions of Delivery. The Customer should immediately notify Colourful Rebel in writing of any visible defects, in default of which the Customer is deemed to have received the Goods or services free of any visible defects.
The Customer must also report in writing to Colourful Rebel of any defect or damage to Goods or services provided by Colourful Rebel, any errors in the supply of the Goods or services or complaints about any other performance by Colourful Rebel immediately upon discovery of such defect or loss is discovered by the Customer, and in any event by no later than 14 days after delivery of the Goods or services. After the lapse of this term, the Agreement is final.
In the event of defects to the said Goods and services, the Customer shall enable Colourful Rebel to repair or replace the Goods or services, at the choice of Colourful Rebel.
Colourful Rebel’s total liability on any basis for any loss or damage shall be limited to compensate the direct loss or damage incurred by the Customer, subject to a maximum amount equal to the price (exclusive of VAT) which has been agreed for the part directly related to the breach. In no event shall the total amount of compensation for any such direct loss or damage exceed € 100,000. Direct loss or damage shall exclusively comprise:
reasonable costs incurred by the Customer to have Colourful Rebel’s defective performance remedied so as to conform to the Agreement;
reasonable costs incurred by the Customer to prevent or mitigate any direct loss or damage as referred to in this Agreement;
reasonable costs incurred by the Customer to identify the cause and extent of any direct loss or damage as referred to in these General conditions of Delivery.
Colourful Rebel will not be liable whatsoever for any indirect loss or damage, including, but not limited to consequential loss or damage, loss of business, loss of turnover or profit, lost savings, damage caused by business interruptions, harm to the Customer’s name or reputation, loss of goodwill, loss or corruption, loss or damage arising in connection with the use of items belonging to the Customer or third parties and employees employed by the Customer, loss or damage arising in connection with Colourful Rebel retaining the services of third parties on the Customer’s instructions, theft, destruction or damage to items of property belonging to the Customer or any of its employees, subcontractors or authorized visitors, loss or damage caused by any breakdown or improper functioning of connections, or by the inferior quality of connections, regardless of whether these have been installed by Colourful Rebel or any third parties and all loss or damage other than as set out in this clause.
The limitations of liability stipulated by Colourful Rebel in the previous paragraphs of this clause shall not apply if and to the extent that the loss or damage results from any intentional act (opzet) or gross negligence (grove schuld) on the part of Colourful Rebel.
Colourful Rebel shall only be liable for breach of Agreement if Colourful Rebel fails to remedy its breach after having been served promptly, i.e. within 48 hours of performance of (the relevant part) of the Agreement, at the latest, with a written notice of default containing a full and detailed description of the breach and providing for a reasonable grace period. Should the Customer fail to serve notice of default within the term referred to above, the Customer shall forfeit its right to file any claims against Colourful Rebel for breach of Agreement. All claims for damages against Colourful Rebel shall be subject to a limitation period of 12 months.
The Customer shall be liable to Colourful Rebel, its employees and/or third parties hired or allowed access by Colourful Rebel for any loss or damage in the event of death, physical or mental injury caused by the Customer or any third parties hired by the Customer and for any theft, destruction or damage to items of property belonging to Colourful Rebel, its employees and/or third parties hired or allowed access by Colourful Rebel.
The provisions of this clause shall also inure to the benefit of all individuals and legal entities engaged by Colourful Rebel in the performance of the Agreement.
15.1 The Customer shall fully indemnify and hold Colourful Rebel and all employees supplied by Colourful Rebel to the Customer harmless from any and all claims filed by third parties who suffer damage in connection with the performance of the Agreement on grounds which are attributable to another than Colourful Rebel.
Other Obligations of the Customer
The Customer shall timely provide Colourful Rebel with all data and information, indicated by Colourful Rebel as being required or of which the Customer reasonably should know that these are required for the performance of the Agreement, shall render its full-cooperation, including to grant timely, free and unrestricted access to all premises and areas and ensure that Colourful Rebel can make use of all workspace and related facilities reasonably required to perform the Agreement. The Customer shall ensure that all staff engaged to cooperate in performing the Agreement have the requisite expertise, experience, qualifications and know-how.
If the Customer fails to comply with its obligations under clause 16.1 or if the Customer complies late or otherwise defaults on its obligations, Colourful Rebel is entitled to postpone performance of the Agreement in full or in part and charge the Customer for all costs incurred at its customary rates. The term of delivery does not start until the Customer has provided the data or information to Colourful Rebel.
The Customer warrants that the workspace and facilities supplied under clause 16.1 comply with all applicable (statutory) occupational health and safety requirements as referred to in article 7:658 of the Dutch Civil Code. The Customer shall indemnify and hold Colourful Rebel harmless from and against any claims filed by third parties, including Colourful Rebel staff, on the grounds of any breach of this warranty.
Any departure from or exclusion of these General conditions of Delivery shall be valid only with the express and written consent of Colourful Rebel.
If any of the provisions hereof prove to be invalid or unenforceable at any time, the remaining provisions shall continue to be in force and effect to the fullest extent possible. Colourful Rebel and the Customer shall do their utmost to reach agreement about a new provision which approximates the invalid or unenforceable provision as closely as possible in terms of both meaning and purpose.
The Customer may not assign any of its rights and obligations under the Agreement without the prior written consent of Colourful Rebel.
Notices and other communications required in relation to the Agreement must be given or made in writing and be delivered in person or sent by fax, courier or registered mail to the addresses or fax numbers stated in the Agreement or to any such other address as the addressee may report for that purpose in conformity with the provisions of this clause.
In case of any conflict or inconsistency between the Dutch-language version of these General conditions of Delivery and any translation hereof, the Dutch text shall prevail.
For the purpose of these General conditions of Delivery “in writing” shall include per fax and per email, unless expressly agreed otherwise.
Applicable Law and Disputes
The General conditions of Delivery, the Agreement and all other agreements resulting there from or connected thereto, as well as any dispute concerning the existence, validity or termination thereof, shall be governed and interpreted solely by Dutch law.
The Vienna Sales Convention shall not apply.
Any dispute concerning the Agreement or other agreements resulting there from or connected thereto, shall be brought in first instance only before the Court of Amsterdam or, at the discretion of Colourful Rebel, before the court with relevant jurisdiction for the address of the registered office of either Colourful Rebel or the Customer.