General Conditions


The text below applies to SOMMTIMES B.V. from August 2020, business address Oude Doelenkade 3, 1621 BH Hoorn. These conditions are filed at the Registry of the District Court in Amsterdam under number: 44/200


Article 1: Definitions

In these terms and conditions, the following definitions apply: - seller: the producer, importer, distributor, wholesaler or retailer of wine or spirits, who concludes a sales contract for wine or spirits or related articles with a buyer; - buyer: the buyer, who concludes a sales contract for wine or spirits or related articles with the seller; - the contract goods: wine, spirits, packaging or related articles, which are sold or made available by the seller to the buyer, respectively, whether free of charge or not; - pre-sale: The sale of wines that have not yet been put on the market (en primeur) at the time of the conclusion of the agreement; - consumer: the natural person not acting in the exercise of his profession or business; - working days: all days of the week except Saturdays, Sundays and legally recognised public holidays; - written: communication by letter, fax and e-mail.

Article 2: Application of these terms and conditions

a. Unless otherwise agreed in writing, these terms and conditions apply to every sales agreement (hereinafter: "the agreement") between the seller and the buyer. This applies if the goods to be delivered under the agreement are delivered to the buyer directly by the seller or by or with the mediation of third parties. b. The buyer is obliged to stipulate in favour of the seller, by way of a perpetual clause in the event of resale or resale of the contract goods, that the buyer has the same rights and obligations vis-à-vis the seller as the buyer has vis-à-vis the seller in Articles 9, 12 and 13, insofar as applicable. c. These terms and conditions apply to all agreements concluded between the seller and the buyer. The seller shall provide and/or make available to the buyer these terms and conditions prior to the conclusion of the agreement. d. These terms and conditions shall also apply if they have applied to a previous agreement between the seller and the buyer, unless the seller has expressly waived their applicability. e. The seller reserves the right to amend and/or supplement these terms and conditions. If it concerns a material change, the buyer will be notified by the seller in writing. Unless the buyer objects in writing within 2 weeks of the date of dispatch of the written notification, the buyer shall be deemed to have tacitly agreed to the amendment or addition. f. The buyer shall not be allowed to transfer rights and obligations under these terms and conditions to third parties without the seller's prior written consent. g. These terms and conditions set aside any terms and conditions of the buyer, even if the buyer's terms and conditions reach the seller after the buyer has received them from the seller.

Article 3: Quotations, offers, price lists

a. Quotations, offers and price lists of the Seller will be without obligation. b. In the case of a firm quotation, it will be valid for such a period as stated by the Seller; in the absence of such a statement, it will lapse after 14 days.

Article 4: Formation of an agreement

a.The agreement shall be concluded by the purchaser's explicit acceptance of the vendor's final offer. b. The agreement shall also be concluded if the vendor has not informed the purchaser in writing, no later than on the eighth working day following the working day on which he has taken cognisance of an order, that he does not accept the order. c. The provisions of this article also apply to pre-sales. d. If the agreement is concluded electronically and the buyer is not a consumer, the seller is not obliged to send the buyer an acknowledgement of explicit acceptance.

Article 5: Intellectual property rights

a.All intellectual property rights to the products sold by the Seller or other materials made available to the Buyer under these Terms and Conditions are vested in the Seller or its suppliers. b. Copying, distributing and any other use of these materials is not permitted without the Seller's written permission, except and only insofar as provided otherwise in regulations of mandatory law. c. The Buyer will not be permitted to register the Seller's or its suppliers' brand names, trade names and/or other designations as a trademark, domain name, social media account or otherwise as its own without the Seller's prior written consent.

Article 6: Prices and discounts

a.The prices and discounts used by the seller are the prices and discounts stated in the price list in force on the day the contract is concluded or as otherwise agreed on that day. b. The prices used by the seller are, unless otherwise agreed, "ex seller", including excise duties, taxes, import duties, other levies and packaging and exclusive of turnover tax. c. If the purchaser is a consumer, the seller shall state the prices used by it including turnover tax, other levies, any freight, delivery and/or postage costs and any other costs. If the price and any additional costs cannot be calculated in advance, the seller shall state the manner in which the price and costs are calculated. d. The seller shall be entitled to increase the agreed contract prices on the basis of increases or surcharges on 1. import duties, 2. excise duties, 3. packaging/environmental taxes, 4. other taxes, 5. levies of public law organisations, 6. other levies, 7. freight rates, 8. transport costs and insurance premiums of the contract goods and raw materials required for the production and transport of the contract goods. The same shall also apply in case of statutory regulations, which lead to risks abnormal for the industry. e. Seller shall notify purchaser of the price increase as soon as possible. The buyer shall be entitled to cancel the order, provided this is done in writing within 8 days of notification of the price change. f. If the buyer resells the delivered contract goods, he shall be obliged to use the recommended prices and any associated quality designations as provided by the seller in any form of publication and/or advertising.

Article 7: Payment

a.Unless payment in cash or cash on delivery has been stipulated, the invoice amount of the contract goods must be paid net in cash at the offices of the seller or into its indicated bank account within 14 working days after the invoice date. b.If purchaser fails to meet his payment obligation(s), vendor shall, without prejudice to the provisions of Article 18 and without prejudice to the right to compensation for damages based on the law, be entitled to compensation for interest and administrative costs. c. The interest compensation shall be equal to the statutory commercial interest rate plus 4%. This compensation shall be calculated on the amount remaining unpaid after the payment term referred to in a. and on the period by which the payment term referred to in a. is exceeded. The compensation for administration costs amounts to 2% of the gross invoice value. If the buyer is a consumer, the statutory commercial interest rate shall apply instead of the statutory interest rate. d. The amount owed by the buyer shall be immediately due and payable, without notice of default, if one or more of the following cases occurs: 1. the bankruptcy of the buyer or buyer's application therefor; 2. a request by the buyer for a moratorium 3. receivership of the buyer; 4. death of the buyer; 5. seizure of the buyer; 6. (a decision to) liquidate or dispose of the buyer's companies; 7. the buyer fails to meet any of his obligations under the agreement, or fails to do so properly or on time. e. The seller may only use payments made by the buyer to settle payment obligations of an earlier date that have not yet been met vis-à-vis the seller or any company affiliated to the seller. f. Any counterclaims of the buyer against the seller or any company affiliated with the buyer, on any account whatsoever, may not be set off against claims of the seller. g. If a partial item of the invoice amount is not due, the buyer must pay the due part of the invoice amount with due observance of the other provisions of this article. h. The seller may invoice orders, which are carried out in parts, per partial delivery. i. If the buyer fails to comply with any provisions of these terms and conditions, all claims of the seller on the buyer, on whatever account, will become immediately due and payable without notice of default being required.

Article 8: Delivery

a. Delivery takes place "ex seller", unless agreed otherwise. b. If delivery "free domicile" has been agreed, the following provisions apply: 1. The seller has the choice of the means of transport by which the contract goods will be delivered to the delivery address. 2. The risk of the contract goods is transferred at the time they are delivered from the means of transport referred to in b.1 to the buyer, carriage paid. 3. Free delivery of the contract goods to the buyer shall take place at the delivery address indicated by the buyer or as far as the means of transport referred to in b.1 can reach in the sole judgment of its driver. If, in the latter case, purchaser refuses to take delivery of the contract goods there, the costs arising therefrom shall be borne by purchaser. The risk of the contract goods shall nevertheless pass to the buyer at that time. 4. Free delivery does not extend beyond placing on the unloading platform or directly over the threshold of the agreed delivery address. 5. When the contract goods are delivered carriage paid, the buyer shall at his own expense provide assistance in unloading the load (e.g. by providing mechanical aids such as forklift trucks with drivers). c. Delivery will take place on normal working hours for the seller. d. Agreed delivery times are target times. If the agreed delivery time is exceeded, the buyer shall be entitled to give the seller notice and the seller shall have to deliver within a reasonable period after the day of the notice. If the buyer is a consumer and no delivery time has been agreed upon, the seller shall deliver the contract goods at the latest within thirty days after the conclusion of the agreement. e. The seller may deliver the contract goods in partial batches. f. The buyer shall be obliged to take delivery of the delivered contract goods at the first offer. If the buyer fails to do so, all resulting costs shall be charged to the buyer. g. If the buyer is a consumer, the contract goods shall be at the buyer's risk from the moment the buyer or a third party designated by the buyer, who is not the carrier, has received the contract goods, unless the buyer has designated a carrier and this choice has not been offered by the seller. In that case, the risk on the contract goods already passes at the time the seller hands the contract goods over to the carrier.

Article 9: Complaints

a. The buyer must notify the seller of complaints about the contract goods in writing immediately after he has reasonably been able to ascertain any defects, but in any case within ten days of delivery. In doing so, the purchaser must accurately state the nature and grounds of the complaint and the relevant invoice. b. If the purchaser is a consumer, the following shall apply. The delivered goods must comply with the agreement. If this is not the case, the statutory guarantee regulation in the Civil Code applies. c. Notwithstanding a., in the event of carriage-paid delivery, visible damage to or visible loss of the contract goods occurring during transport to the agreed delivery address must be established in writing on the transport document by or on behalf of the buyer in the presence of the driver of the means of transport referred to in 7b. The buyer shall immediately send a copy thereof to the seller. d. The buyer shall give the seller - insofar as this can reasonably be required from him, but in any case not less than twenty working days after the claim - the opportunity to ascertain (or have ascertained) any loss, size discrepancy or damage on the basis of the contract goods in their original condition and in their original packaging. If, however, the buyer has meanwhile fully or partially processed or re-delivered the contract goods, any right to complain and compensation shall lapse. e. Complaints shall not entitle the buyer to suspend his payment obligation(s). e. If the seller considers a complaint well-founded, the seller shall, at its discretion, either pay compensation up to a maximum of the invoice value of the contract goods concerned or replace the contract goods concerned free of charge. The seller shall not be obliged to pay additional damages or compensation for indirect losses (whether or not suffered by the buyer's customers). In case of sale to consumers, this liability of the seller shall not apply. f. With regard to complaints, each partial delivery shall be regarded as a separate delivery. g. Return of delivered goods can only take place carriage paid at the risk of the buyer after the seller's written consent to return. If the seller credits the buyer in this connection, fifteen per cent will be deducted from the net invoice amount. This return shipment must be made carriage paid to the Seller's address within five working days after obtaining permission. The buyer must ensure careful packaging and shipping. For consumers, if the purchase was made electronically, the provisions of Article 10 apply.

Article 10: Right of withdrawal

a. Contract goods, if ordered electronically by and delivered to consumers, are subject to the statutory right of withdrawal. The consumer shall have fourteen days from the date of delivery of the complete order to dissolve the contract concluded with regard to the contract goods without giving reasons. b. Consumers shall exercise the right of withdrawal described above by sending the completed model form, which can be found on the Seller's website, to the Seller within the fourteen-day period or by making another declaration to the Seller to dissolve the contract. c. The right of withdrawal shall not apply to contract goods which spoil quickly or which have a limited shelf life, nor shall the right of withdrawal apply to the supply of alcoholic beverages, the price of which was agreed upon at the time of the conclusion of the consumer purchase, but the delivery of which can only take place after thirty days, and the actual value of which depends on fluctuations in the market over which the trader has no influence. d. The consumer shall return the contract goods subject to cancellation to the seller as soon as possible, but not later than fourteen days from the day following the day on which the notification referred to in paragraph b was made. The consumer shall bear the direct costs of returning the contract goods. e. Immediately after dissolution of the contract, but no later than fourteen days after the day on which the notification referred to in paragraph b of this article has been received by the seller, the seller shall reimburse all payments which the seller has received from the consumer in this context. The costs shall be reimbursed by vendor in the same way that vendor has obtained them from the consumer. f. The burden of proof for correct and timely exercise of the right of withdrawal rests with the consumer.

Article 11: Retention of title

a.After delivery, all contract goods remain the property of the vendor until the purchaser has fulfilled all its obligations towards the vendor in respect of the consideration for all deliveries (now or in the future) from the vendor to the purchaser or in respect of other work carried out by the vendor for the purchaser under any agreement between the purchaser and the vendor or the payment of compensation for non-compliance with the aforementioned agreements, including interest, costs and penalties. b. The Buyer is obliged to keep the goods delivered under retention of title with due care and as recognisable to the Seller. c. As long as the Buyer has not fulfilled all its obligations as described in paragraph a, the Buyer may not transfer ownership of the contract goods to third parties other than in the ordinary course of its business, nor may it pledge the contract goods to third parties as additional security. d. The Buyer shall immediately inform the Seller of any claims or attempts by third parties to take control of or seize contract goods subject to the Seller's retention of title and shall immediately confirm this in writing to the Seller. e. The Buyer authorises the Seller to enter the room(s) where the Contract Goods are located at any time (i.e. also outside the Buyer's normal working hours) in order to gain possession of the Contract Goods and to take them away by invoking its reservation of title. f. The Buyer must provide further security for the proper performance of its obligations towards the Seller at any time requested by the Seller. g. The Buyer must adequately insure the Contract Goods subject to retention of title at its own expense against normal business risks and allow the Seller to inspect the relevant insurance policies upon first request.

Article 12: Pallets

a. On delivery of the contract goods, the Buyer must return used pallets to the Seller carriage paid at its own risk within twenty working days. b. Ownership of these pallets shall always remain with the Seller.

Article 13: Force majeure/unforeseen events and other circumstances

a.Seller may postpone the delivery of the contract goods without compensation in case of force majeure or if reasonably unforeseen events and circumstances make it impossible for him to execute current orders on time without additional provisions or efforts. In such a case, he may also rescind the contract in whole or in part without court intervention and without compensation. Even in the event of a temporary suspension, the seller shall still be entitled to declare the contract wholly or partly dissolved if he is unable to deliver as a result of force majeure or unforeseen events or circumstances. b. Events and circumstances as referred to in a. shall be deemed to include: 1. state of war and state of siege in both the formal and material sense, 2. civil war, 3. riots, 4. mobilisation, 5. industrial action of any kind, 6. (road) blockades, 7. lockout of employees, 8. sudden operational breakdowns, 9. sudden excessive sickness of personnel, 10. untimely or faulty delivery of raw and auxiliary materials, finished products and packaging materials, 11. government regulations, 12. refusal or failure to obtain import licences or other necessary permission from the government, 13. interference with imports or exports by governments or third parties, 14. fire, 15. extreme weather conditions (such as frost, extreme rainfall, storm), 16. flood, 17. disruption in the supply of energy, 18. breakdown of machinery. c. Should the force majeure situation last so long that purchaser can no longer reasonably demand performance from vendor, either party may dissolve the agreement without judicial intervention and damages by a single written declaration for the future. d. This agreement is subject to the so-called 'change of ownership' clause which means that vendor has the right to terminate the delivery when purchaser changes ownership or significant changes in management occur.

Article 14: Seller's liability

a.The vendor's liability is expressly limited to the provisions of Article 8.e, except in the event of additional damage resulting from intent or gross negligence on the part of the vendor or its executive employees. b. The vendor shall never be liable for any "further" damage, including consequential damage, and the vendor shall therefore not be obliged to compensate for trading losses, loss of profit, damage as a result of personal accidents, damage arising from claims by third parties against the purchaser or any other damage whatsoever. The purchaser shall indemnify the seller against all claims by third parties in connection with goods delivered by the seller to the purchaser. c. In the event of damage as a result of a defect in the product as referred to in articles 6:185 et seq. of the Dutch Civil Code, the seller shall provide the purchaser with the necessary information from the producer of the product. The buyer shall be obliged to submit his claim to the producer unless the seller is to be regarded as the producer on the basis of Article 6:187 of the Dutch Civil Code. d. In the event of sale to consumers, the limitation of the seller's liability shall not apply.

Article 15: Method of trading

a.The buyer must trade the contract goods exclusively in original packaging originating from the seller in unaltered and undamaged condition. However, after having received written consent from the vendor to this effect, the purchaser is permitted to trade individually the contract goods delivered in bulk packaging provided the individual products are traded in original packaging originating from the vendor in an unaltered and undamaged condition. b. For each breach of the obligations mentioned in this article, the purchaser shall forfeit in favour of the vendor an immediately payable fine of Euro 5,000 which is not subject to compensation or discount. For this purpose, the seller need not give the buyer notice of default. In addition to this penalty, the seller shall be entitled to damages and may dissolve the agreements) with the buyer with immediate effect.

Article 16: Publicity and promotional material

The publicity and promotional material, which the seller provides to the buyer, free of charge or otherwise, in support of the sale of the contract goods or of future contract goods, shall at all times remain the property of the seller. The Buyer shall return them to the Seller's office address, postage paid and at the Buyer's risk, in undamaged and unaltered condition at the Seller's first request.

Article 17: Internet sales

Sales to consumers via the Internet (both, but not limited to, on a PC and via tablet and mobile phone) are subject to the statutory regulations for distance selling.

Article 18: Nullity, voidability

The nullity, voidability or unreasonable onerousness of one or more of the provisions of the agreement(s) between the Seller and the Buyer or of these terms and conditions shall not result in the nullity, voidability or unreasonable onerousness of the agreements) between the Seller and the Buyer or of these terms and conditions as a whole.

Article 19: Applicable law and disputes

a.These terms and conditions and the agreement(s) in which reference is made thereto shall be governed exclusively by Dutch law. b. All disputes in connection with these terms and conditions and the agreement(s) in which reference is made thereto shall in the first instance be submitted to the competent court of the seller's actual place of business to the exclusion of any other court, unless the purchaser chooses the court that is competent by law to settle the dispute within 1 month of the seller invoking this clause in writing, unless the purchaser is a consumer, in which case the court that is competent on the basis of the applicable law shall apply. c. Without prejudice to the provisions of b., the purchaser and the seller may agree that a dispute between them or between the seller and the purchaser's legal successors under general or special title arising from their agreements and these terms and conditions and further agreements and terms and conditions, which may be the result thereof, will be decided in the highest instance and to the exclusion of the ordinary court by arbitration in accordance with the regulations of the Netherlands Arbitration Institute.

Article 20: Judicial and other costs

All judicial and extrajudicial costs reasonably incurred by the seller to enforce compliance with these terms and conditions and the agreement(s) in which reference is made to these terms and conditions shall be borne by the buyer. Consumers shall not owe these costs until they have been summoned to do so by the Seller.

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