GENERAL RESELLER TERMS & CONDITIONS OF AUTHENTIC MODELS BV & AUTHENTIC
MODELS AMERICAS, INC.
These general terms & conditions are implemented by the private limited company
Authentic Models BV and Authentic Models Americas, Inc., also trading as Authentic
Shipmodels, Hollands Glorie, Compass Rose Collection, Designimport and Mermaid
Trademark, all of which are hereafter referred to as Authentic Models, abbreviated to
AM, and replace forthwith all versions which have been previously submitted. These
terms (Terms) are applicable to all agreements between AM and a customer (Reseller)
whereby the Reseller purchases products from AM.
1. General
1.1. These general terms & conditions apply to all contracts entered into by AM,
together with the establishment of such contracts and furthermore to all
proposals and order confirmations issued by AM.
1.2. In the event of conflict between AM’s general terms & conditions and any
general terms & conditions applied by the Reseller, AM’s terms & conditions
prevail. The validity of the Reseller’s general terms & conditions shall be
expressly excluded.
2. Establishment of contracts
2.1. All proposals, estimates and such issued by AM are entirely without obligation,
unless expressly stated otherwise. Verbal commitments shall not be binding for
AM unless these have been explicitly confirmed in writing.
2.2. AM shall not be bound unless it has explicitly confirmed an order in writing.
Confirmation is considered to represent a contract, unless a written objection to
this is received within eight days of the transfer (or shipment) of goods. In the
event that an individual written confirmation is not issued, the invoice acts in
place of this.
2.3. Upon accepting a proposal from AM a Reseller is considered to have been
informed of AM’s rates and prices and therefore to be in agreement with them.
2.4. The models, illustrations, designs and dimensions shown, attached or
communicated in the proposals provide a general representation of the items
offered.
2.5. Changes to the colour and/or construction, as a result of which the actual
specification differs slightly from the stated models, illustrations, designs and
dimensions, but as a result of which there is no essential difference in the
technical and aesthetic specification of the items, do not bind AM to any
reimbursement and do not entitle the Reseller to any right to refuse receipt of,
or payment for, the items supplied.
2.6. Amendments to and cancellations of orders already placed are only valid
following written confirmation by AM.
3. Delivery
3.1. The delivery times issued by AM are based on circumstances which apply at the
time of the contract and are without obligation unless a specific delivery time is
explicitly guaranteed by AM. AM undertakes in all cases to observe the stated
delivery time, when possible.
3.2. The exceeding of a delivery time does not bind AM to the payment of
compensation. In the event of the delivery time not being met, the Reseller may
then only proceed to the dissolution of the contract once it has issued AM with a
written summons. AM is then entitled to the deliver the items in full or in part
within ten working days of that summons.
3.3. In the event that the Reseller does not accept the delivery from AM without
justified complaint, AM is entitled to demand integral fulfilment of the contract,
and or to dissolve the contract in writing, in which case the Reseller is liable to
AM for an immediately payable penalty of 30% of the invoice value. This is
without prejudice to AM’s right to claim compensation in full.
3.4. Unless explicitly agreed between the parties, delivery of the goods is considered
to have taken place at the time they are actually made available to the Reseller
or to a third party designated by the Reseller. If the Reseller requests that AM
provide transport which is different to the usual form of transport, this is at the
Reseller’s own risk at all times.
3.5. Once the goods which form the subject of the contract have been delivered,
they are entirely the responsibility of the Reseller.
3.6. AM is entitled at all times to make part deliveries.
4. Prices
4.1. All prices stated exclude sales tax (VAT) and any other duties levied by the
government and also exclude any third party costs (such as transport costs)
incurred by AM for work undertaken on behalf of the Reseller.
4.2. AM is entitled to increase the agreed price if the cost of one or more of the
price-determining factors increases after the date the contract is entered into.
4.3. Price-determining factors include purchase prices, transport costs, raw material
prices, production costs including wage increases, import duties, taxes,
government duties etc. occurring anywhere in the world. If the price offered is
exceeded, AM reserves the right to amend the final invoice amount based on recosting. If the Reseller is a private individual who is not (jointly) acting in the
course of, or on behalf of, a independent profession or business, this Reseller
has the option to dissolve the contract in the event of a price increase within
three months of the contract being entered into.
5. Payment and default
5.1. Payment must take place within thirty days of the invoice date, unless agreed
otherwise in writing. Payment must take place without adjustment or
suspension for any reason whatsoever and without the Reseller being entitled to
block its payment obligation by seizure or by any other means.
5.2. In the event of the expiry of the term stated in the previous paragraph of this
article, the Reseller is legally in default, without the requirement for any formal
notice of breach of contract. In that case, the Reseller is liable for interest
payable on the outstanding amount at the rate of 1.5% per month, from the
date upon which the sum due becomes payable until the time of payment,
whereby parts of a month are calculated as a whole month, all of the above
without prejudice to AM’s other rights.
5.3. If the Reseller is in default, then non-legal recovery costs also become due.
These charges amount to 15% of the outstanding declared amount in full, plus
interest, with a minimum charge of € 125 excluding VAT.
6. Force majeure
6.1. In the event of force majeure, AM is entitled either to suspend its obligations to
the Reseller, or to dissolve the contract in full or in part without legal
intervention and without becoming liable to pay any compensation to the
Reseller or to third parties, at AM’s discretion.
6.2. Force majeure on the part of AM is defined as: any circumstance which is
outside the influence of AM or any circumstance which is not reasonably
foreseeable, which temporarily or permanently hinders the fulfilment of AM’s
obligations arising from the contract. Such circumstances include in any case:
(civil) war, the risk of war, riots or other public order disturbances, fire, natural
disasters, floods, strikes, occupation of company premises, restrictive
government measures, import and export restrictions, unforeseen defects to
machines, disruptions to energy supplies and the default in part or in full of third
parties from whom goods or services are received.
7. Retention of title and other securities
7.1. Anything which is delivered or which shall be delivered to the Reseller by AM
remains the property of AM whilst it has any outstanding claim which relates to
the delivered or to be delivered goods, including in all cases the price of the
goods arising from the contract and any potential claims in respect of
shortcomings in the fulfilment of the contract by the Reseller.
7.2. If it becomes clear that the Reseller does not or shall not be able to fulfil its
obligations to AM in full or in a timely manner, AM is irrevocably entitled to
recover the goods which are still its property or to have them recovered from
the premises where they are located at the Reseller’s expense, without any
requirement for notice of default to be issued. The Reseller is obliged to extend
its full cooperation to this without delay. The above is without prejudice to AM’s
right to compliance, dissolution and/or compensation.
7.3. If, in AM’s opinion, there is sufficient reason, it is entitled to demand payment or
to require security for the Reseller’s compliance with its obligations prior to
delivery. Until that time AM is entitled to suspend its obligations or to dissolve
the contract, without prejudice to its rights to claim compliance and/or
compensation in addition to this.
7.4. If and so far as AM continues to be the owner of the goods delivered to the
Reseller, the Reseller shall immediately inform AM if the goods are (at risk of
being) seized or if any claim is to be made on (any part of) the aforementioned
goods by any third parties. Furthermore the Reseller shall inform AM of the
location of the goods upon its initial request.
7.5. The Reseller undertakes that any seizure of the aforementioned goods will be
removed as swiftly as possible. In the event of (threatened) seizure, (provisional)
suspension of payments or bankruptcy on the part of the Reseller, the Reseller
shall immediately inform the party threatening seizure, the seizing bailiff, the
receiver or liquidator of AM’s (title) rights.
7.6. AM has the right of retention in respect of the goods which it has withheld from
the Reseller, which entails that AM is entitled to withhold the stated goods until
the Reseller has fulfilled all its obligations arising from the contract.
8. Complaints and warranty
8.1. The Reseller is obliged to closely inspect/allow to be inspected the goods
delivered by AM immediately upon delivery. Any potential complaints must be
reported to AM within 5 days of delivery, preferably in writing. After the expiry
of the aforementioned term the Reseller’s right to claim non-conformity or claim
under warranty legally expires.
8.2. Complaints do not however entitle the Reseller to suspend payment of the
purchase price or any accompanying costs in full or in part, whilst any appeal to
settlement is expressly excluded.
8.3. If a claim is accepted as valid by AM, the Reseller must return the goods
concerned, freight and insurance paid, to AM within eight days of the delivery
date. Unless agreed otherwise, returned goods are only accepted by AM if they
are returned in as new condition, as assessed by AM.
8.4. Accepted return shipments are either credited with an amount considered to be
reasonable by AM, whereby the contract will be considered to have been
dissolved, or replaced by similar goods, without AM being bound to the
reimbursement of costs, losses or interest incurred or suffered by the Reseller
and/or third parties.
8.5. Repairs which AM is not obliged to carry out are to be undertaken exclusively at
the Reseller’s expense, once the repair costs have been specifically agreed with
the Reseller. The goods returned for repair must be delivered freight paid to AM
and shall not be returned freight paid to the Reseller.
9. Liability
9.1. AM is not liable for any loss suffered by the Reseller as a result of shortcomings,
unlawful acts or any other circumstance, unless the loss is the direct and single
consequence of gross negligence or intent on the part of AM.
9.2. Insofar as AM is obliged to pay any compensation for loss on the grounds of
faults in the goods delivered, this is restricted to a maximum of the invoice value
of the goods.
9.3. AM is not liable for losses incurred as a result of the exceeding of terms (see also
article 3.2).
9.4. AM is not liable for damage to, shortage of, or loss of goods which are stored at
AM at the Reseller’s request. This storage is at the Reseller’s own risk at all
times.
9.5. AM is not liable for damage caused by third parties who are engaged at the
request of and with the permission of the Reseller for the implementation of the
contract nor for damage which is caused by materials delivered by third parties
at the request of, and with the permission of, the Reseller. The Reseller is
obliged to allow the aforementioned third parties sufficient opportunity to be
able to carry out their activities properly. The Reseller shall observe any terms &
conditions which are applicable to these activities and/or this material.
9.6. AM is not liable for damage caused by the improper use of the goods supplied or
by their use for a purpose other than that for which they are intended according
to objective standards.
10. Presentation
10.1. The Reseller offers AM products and images thereof only in a (digital or physical)
environment that does justice to the quality, style and exclusive image of AM.
10.2. The Reseller shall not stimulate the sale of AM products in a manner that may
damage the image or reputation of AM (as determined by AM).
10.3. No low prices or discounts for AM products are to be promoted through
unseemly expressions (such as brightly colored advertising notices).
11. Use of Trademarks
11.1. The brand name AM and the AM logo are internationally protected trademarks
of AM (Trademarks).
11.2. The Reseller will refrain from using the AM trademarks in a way that may be
harmful to the distinctive character or reputation of these trademarks, as
determined solely by AM.
11.3. The Reseller may display the AM trademarks in sales promotion of AM products
and in an overview of the brands that are offered for sale by him.
11.4. In advertisements, AM trademarks may only be used in combination with
‘authorized reseller’, ’dealer’ or ‘point of sale’. The proportion of display of the
AM trademarks must be in accordance with good customs in the market.
11.5. The Reseller is not allowed to use the brand name ‘Authentic Models’ as (a part
of) an AdWord.
12. Use of Images
12.2. AM owns the copyrights in the product photos (Product Photos) and lifestyle
photos (Lifestyle Photos) that are used by AM in its promotional material and on
its website.
12.3. The Reseller shall only use in his promotional materials Product Photos of
products that he has in stock at that time. Products photos of products that are
no longer offered by AM for more than one season may not be used.
12.4. If the Reseller wants to use Lifestyle Photos in another way than is permitted in
these Terms, he may only do so with written permission by AM.
13. Website Reseller
13.2. The extent to which the AM trademarks and AM products are presented on the
website(s) of the Reseller (Website) must be proportional to the current
business volume of AM products, as determined solely by AM.
13.3. Under no circumstances may the use of AM trademarks, Product Photos,
Lifestyle Photos and other expressions referring to AM create confusion on the
part of visitors of the Website regarding the identity of the owner of the
Website, this to sole discretion of AM.
13.4. The identity of the Reseller must always be clearly visible on its Website in order
to avoid all confusion regarding the identity of the owner of the Website.
13.5. Landing pages referring to AM must be made stylistically in accordance with the
common layout used by the Reseller
13.6. It is not allowed to let an internet user browse to a page on the Website by using
the AM trademarks, when on this web page the sale of non AM products is (also)
promoted.
13.7. Deep links to the website of AM are allowed. Framed links to the website of AM
are allowed unless AM explicitly notifies to the dealer that it does not agree to
this use. “Home” buttons may only lead to the home page of the Website.
13.8. It is not permitted to use the name AM (or any variation thereof) in a domain
name. Using a specific subpage named ‘Authentic Models’ is only permitted
upon written consent from AM.
13.9. Any use of AM products on third-party sites (i.e. marketplace sites, auction sites
or curated sites) must be authorized in advance by AM.
14. Intellectual property
14.2. The Reseller acquires no intellectual property rights from AM.
14.3. The Reseller is not permitted to alter or remove any brand or identifying marks
from the goods supplied or from their accompanying packaging or to modify or
copy the goods supplied or any part of them without AM’s express written
consent.
14.4. The Reseller undertakes that he is legally entitled to allow the goods and/or
information made available to AM to be copied, published or processed in any
other way by AM as stated further in the contract between the parties and that
by doing so he is not in infringement of any intellectual property rights belonging
to third parties. The Reseller shall provide AM with all the necessary evidence of
his rights, such as for example (but not restricted to) a copy of a trademark
registration or licence agreement.
14.5. In the case of third party claims in respect of the infringement of such rights or in
the event of suspicion that the implementation of a contract would infringe the
rights of third parties, AM reserves the right to take measures at its discretion in
order to remove the alleged infringement and to restrict the resulting loss as
much as possible.
14.6. The Reseller grants AM exemption from all loss and costs which it may be made
responsible for as a consequence of infringements alleged by third parties
against their intellectual property rights. The Reseller shall provide AM with
sufficient security for the fulfilment of its financial obligations toward AM arising
from this contract, upon AM’s initial request.
14.7. The Reseller shall immediately inform AM of any third party claim in respect of a
(threatened) infringement of intellectual property rights involving the goods
supplied (or to be supplied) or activities undertaken (or to be undertaken) by
AM.
15. Limitation
15.2. As a private individual, not (jointly) acting in the course of or on behalf of an
independent profession or business, the Reseller’s rights in respect of AM lapse
after a maximum period of one year following their coming into being.
16. Consumer transactions
16.1. If the Reseller is a private individual, not acting the course of his profession or
business, the clauses contained in this contract do not apply if and so far as they
are covered by the clauses stated in article 236 of volume 6 of the Civil Code.
17. Remedies
17.1. A Reseller is not permitted to sell or to offer AM products while acting in
violation of these Terms.
17.2. AM has the right not to supply a Reseller when he is acting in breach of these
Terms.
18. Amendments to these Terms
18.1. AM reserves the right to amend these Terms.
18.2. In selling and promoting AM products, the Reseller is bound to the most recent
version of the Terms, as soon as he becomes aware of the fact that the Terms
have been amended.
19. Disputes Applicable law and competent courts
19.1. The law of the Netherlands is applicable to all contracts between AM and the
Reseller. The Reseller acknowledges competence of the Dutch courts for all
claims (direct or indirect) associated with (the subject of) these Terms.
19.2. All disputes are ruled on in the first instance by the competent Dutch court, even
if the Reseller is registered abroad and a clause in any treaty designates a foreign
court as the competent court. Furthermore AM reserves the right to submit a
dispute with a foreign Reseller to a foreign competent court. If the dispute is
covered by the absolute competence of the Magistrate’s Court, the Magistrate’s
Court is authorised on the basis of the statutory relative competence
regulations, and/or the Magistrate’s Court in Zwolle-Lelystad, at AM’s discretion.
Submitted on April 22nd, 2015 to the Chamber of Commerce in Lelystad under
submission number 21/113.
