1. Definitions
In these general terms and conditions, the following definitions apply:
- 1.1 General Terms and Conditions: these general sales and delivery terms and conditions.
- 1.2 Realize Mode: the private limited liability company Realize Mode B.V., having its registered office in Amsterdam, registered with the Amsterdam Chamber of Commerce under number 88592839, with offices located at (1062 HJ) Amsterdam at Koningin Wilhelminaplein 29, Unit 3.00.06.
- 1.3 Customer: any person or company contracting or intending to contract with Realize Mode.
- 1.4 Purchaser(s): being the Customers of Realize Mode who are affiliated with Euretco and who settle invoices from Realize Mode to Euretco in connection with the agreed central payment and payment guarantee for Realize Mode. For Purchaser(s), articles 6.6 to 6.14 of these General Terms and Conditions apply instead of articles 6.1 to 6.5.
- 1.5 Euretco: Euretco Financial Services B.V.
- 1.6 Intellectual Property Rights: all intellectual property rights, including but not limited to copyrights, registered and unregistered trademark rights, trade name rights, granted and pending patents, registered and unregistered design rights, know-how, rights in designs and inventions, rights arising from licenses, permissions, priority rights, rights with similar or equivalent effects or nature to the aforementioned rights, and other rights derived from the Products, designs, and services of Realize Mode.
- 1.7 Net Invoice Value: the purchase price paid by the Customer to Realize Mode, including granted order discounts and excluding payment discounts, returns, VAT, and promotions, for the Products delivered by Realize Mode to the Customer.
- 1.8 Products: clothing and accessories, with or without Realize Mode registered trademarks or under private labels, supplied by Realize Mode to the Customer.
- 1.9 Quotation: any verbal or written offer made by Realize Mode to the Customer.
- 1.10 Order: any verbal or written order placed by the Customer with Realize Mode for the delivery of Products.
- 1.11 Order Confirmation: any verbal or written confirmation of the Order by Realize Mode.
- 1.12 Agreement: any Agreement concluded between Realize Mode and the Customer, including any amendments or supplements thereto, and all subsequent agreements, as well as all (legal) actions in preparation for or execution of that Agreement.
- 1.13 Parties: referring to Realize Mode and the Customer together.
2. Applicability
- 2.1 These General Terms and Conditions apply to all Quotations from and Agreements with Realize Mode and to all Orders from the Customer. These General Terms and Conditions also apply to deliveries of Products that Realize Mode may have delivered by a third party. These terms and conditions likewise apply to any further or subsequent agreements between Realize Mode and the Customer. The Customer is deemed to have agreed to them.
- 2.2 Deviations from these General Terms and Conditions are only valid if expressly agreed in writing by the Parties. In that case, the expressly agreed deviating provisions take precedence. If Realize Mode deviates from these General Terms and Conditions in one or more Agreements with the Customer, this does not imply that this deviation also applies to earlier or later Agreements between Realize Mode and the Customer.
- 2.3 The applicability of (general) terms and conditions of the Customer is expressly rejected.
- 2.4 If one or more provisions of these General Terms and Conditions are wholly or partially void or annulled, the other provisions of these General Terms and Conditions shall remain in effect, and the Parties shall consult to agree on a replacement provision that aligns with the intent of the Parties when drafting the void or annulled provision.
- 2.5 In case of changes to the General Terms and Conditions, the Customer agrees to the applicability of these revised General Terms and Conditions unless they reject them in writing within 14 (fourteen) days of receipt.
3. Quotations, Orders, and Formation of Agreement
- 3.1 All Quotations from Realize Mode are non-binding and valid for a term specified by Realize Mode. If Realize Mode has not specified a term in its Quotation, the Quotation will automatically expire after 30 days. All Quotations can be revoked by Realize Mode at any time, even if the Quotation specifies a term for acceptance.
- 3.2 The documents that form part of the Quotation, such as price lists, brochures, catalogs, folders, etc., are as accurate as possible but non-binding and in no way binding on Realize Mode. These documents remain the (intellectual) property of Realize Mode.
- 3.3 Realize Mode cannot be held to its Quotation if the Customer can reasonably understand that the Quotation, or part of it, contains an apparent error or typo.
- 3.4 The Customer may place an Order with Realize Mode in writing via WhatsApp, email, or orally by phone, in the showroom of Realize Mode, or through a Realize Mode sales agent.
- 3.5 An Agreement is concluded:
- a. at the moment the Customer accepts the Quotation from Realize Mode in writing, except in the case of revocation per article 3.1 of the General Terms and Conditions by Realize Mode;
- b. if the Customer places an Order with Realize Mode, the Agreement is deemed concluded when the Order is confirmed in writing by Realize Mode with an Order Confirmation or when Realize Mode has started executing the Order. The Customer is not entitled to cancel an Order, even if it has not yet been accepted by Realize Mode. Realize Mode has the right to reject an Order at any time;
- c. in the case of a written Agreement signed by both Parties.
4. Prices
- 4.1 Unless otherwise stated, the prices listed in a Quotation, Order Confirmation, price list, or Agreement are expressed in Euros, excluding VAT, import duties, freight charges, shipping and administrative costs, and other government-imposed levies, as well as any other costs incurred under the Agreement. These levies and costs may be charged separately by Realize Mode.
- 4.2 The prices of Products to be delivered by Realize Mode mentioned in a Quotation or Agreement are exclusive of transport costs unless otherwise agreed in writing by the Parties.
- 4.3 Realize Mode reserves the right to change the prices or components thereof for Products not yet delivered and/or paid for if one or more cost factors undergo changes after the Agreement is concluded that directly affect the price of the Products to be delivered. Realize Mode is also entitled to adjust prices promptly if a legal price-determining factor necessitates such a change.
5. Execution of Agreement and Delivery
- 5.1 Once the Agreement has been concluded, Realize Mode will proceed with the delivery of the Products as specified in the Agreement.
- 5.2 All delivery times provided and/or agreed upon are based on data and circumstances known to Realize Mode at the time of concluding the Agreement. These delivery times are indicative and are never to be considered binding or essential terms unless expressly agreed otherwise in writing by the Parties. Realize Mode endeavors to adhere to these delivery times as much as possible, but mere exceeding of a delivery time does not constitute a breach of contract. Delays in delivery will never entitle the Customer to dissolve the Agreement or claim any form of compensation.
- 5.3 Realize Mode delivers the Products in all cases ex works, Amsterdam, Netherlands, as provided for in the ICC Incoterms. All risks related to the Products to be delivered by Realize Mode are transferred to the Customer at the moment of delivery at Realize Mode’s premises. The Products, however, remain the property of Realize Mode until the Customer has paid the price in full.
- 5.4 If Realize Mode sends the Products to the Customer by post and the Products do not arrive, the Customer must pay for the Products if Realize Mode can provide a written proof of shipment.
- 5.5 The Customer is obliged to take delivery of the Products at the time of delivery.
- 5.6 Realize Mode is entitled to make partial deliveries, which it may invoice separately. The Customer is obliged to pay these partial invoices in accordance with article 11 of the General Terms and Conditions.
- 5.7 If the Customer refuses to accept the ordered Products, Realize Mode is authorized to:
- a. deliver the Products to a storage location at the expense and risk of the Customer;
- b. dissolve the Agreement and claim compensation for the damage it has incurred.
6. Retention of Title
For delivery to Customers other than Purchasers:
- 6.1 The ownership of the Products delivered by Realize Mode to the Customer does not transfer to the Customer until the Customer has fulfilled all obligations arising from all Agreements with Realize Mode, including any claims Realize Mode may have or acquire in connection with the delivered Products, in accordance with Article 3:92 of the Dutch Civil Code (hereinafter: DCC).
- 6.2 The Customer is obliged to (1) insure the delivered but (still) unpaid Products, (2) assign any claims the Customer may have against third parties concerning the Products delivered by Realize Mode to Realize Mode upon request, through cession, and (3) inform third parties that the Products delivered by Realize Mode to the Customer are subject to retention of title if the Products have not (yet) been fully paid for.
- 6.3 If the Customer fails to fulfill its obligations or if there is a well-founded fear that it will not fulfill its obligations, Realize Mode is entitled to reclaim the delivered Products subject to the retention of title referred to in Article 6.1 from the Customer or from third parties holding the Products for the Customer. The Customer is obliged to cooperate fully, under penalty of an immediately payable fine of 20% per day or part thereof that the Customer fails to comply with this obligation, of the total amount the Customer owes to Realize Mode, without prejudice to the right to enforce compliance with the obligations mentioned in the previous sentence and/or to claim damages.
- 6.4 For Products reclaimed under the retention of title, the Customer will be credited for the market value of the reclaimed Products on the date of reclamation.
- 6.5 Realize Mode delivers all Products to the Customer under the reservation of a silent pledge on the Products in favor of Realize Mode. The Customer, after the expiration of the retention of title, acquires ownership of the Products, encumbered with a silent pledge in favor of Realize Mode. These pledge rights serve as additional security for the payment of all claims Realize Mode has or may acquire against the Customer. Upon first request from Realize Mode, the Customer will sign a deed of pledge and register it with the tax authorities. If the Customer refuses, this provision will serve as an irrevocable power of attorney from the Customer to Realize Mode to establish this pledge.
- For delivery to Purchasers, the following retention of title and reserved silent pledge clause applies:
- 6.6 Realize Mode retains ownership of all Products to be delivered under agreements concluded with the Purchaser (limited retention of title), until both the payment by Euretco to Realize Mode and the payment by the Purchaser to Euretco have been fully settled:
- a. the claims that serve as consideration for the delivery of the relevant Products;
- b. the claims arising from the Purchaser’s failure to fulfill its obligations under the aforementioned Agreements regarding the delivered Products.
Furthermore, Realize Mode delivers now and in the future all Products under agreements with the Purchaser subject to a reserved silent pledge on all these Products in favor of Realize Mode and Euretco. After the retention of title expires, the Purchaser will receive the Products encumbered with a silent pledge in favor of Realize Mode and Euretco, which paid the purchase price for the relevant Products on behalf of the Purchaser. These pledge rights serve as additional security for the payment of all claims Realize Mode and/or Euretco may have against the Purchaser, particularly including claims Euretco has or may acquire against the Purchaser due to payments made by Euretco on behalf of the Purchaser, as specified in Articles 6.10 et seq. of these General Terms and Conditions.
- 6.7 Products are considered unpaid by the Purchaser if the Purchaser has not demonstrated payment to Euretco.
- 6.8 The Purchaser is required to present the Products to Realize Mode upon first request and, in the event of payment default, to return them to Realize Mode as requested. For Products reclaimed under this article, the Purchaser will be credited for their market value on the reclamation date.
- 6.9 In all cases where Euretco pays the purchase invoices from Realize Mode on behalf of the Purchaser and is subrogated to Realize Mode’s rights, including all ancillary rights, the retention of title does not lapse until the Purchaser settles the corresponding claim with Euretco.
- 6.10 Concurrently with the subrogation mentioned in Article 6.9 of these General Terms and Conditions, Realize Mode transfers to Euretco the reserved ownership of the items for which Euretco has paid the purchase price. From that moment, Realize Mode holds the aforementioned Products located with the Purchaser on behalf of Euretco.
- 6.11 The Purchaser is not authorized to alienate or pledge the Products subject to retention of title or pledge to third parties, except to Euretco as referred to in Article 6.6 of these General Terms and Conditions. However, the Purchaser is permitted to sell and transfer the Products in the normal course of business. This authorization ceases automatically if the Purchaser defaults on obligations related to the claims secured by retention of title and pledge, is granted provisional suspension of payments, is declared bankrupt, or if the statutory debt restructuring scheme is declared applicable.
- 6.12 The Purchaser is obliged to insure the Products referred to in Article 6.6 of this clause against risks of fire, theft, storm, and water damage in such a manner that the insurance policy includes a provision that also covers goods owned by (potential) third-party stakeholders. The Purchaser is not permitted to pledge or otherwise encumber claims against the insurer related to the Products referred to in Article 6.6 of this clause. Compensation for damages or loss of the Products mentioned replaces the involved Products.
7. Right of Retention
- 7.1 Realize Mode has a right of retention over all Products that are with Realize Mode on behalf of or from the Customer, for any reason or cause, as long as the Customer has not fulfilled all obligations towards Realize Mode.
- 7.2 In case of total or partial destruction, damage, or devaluation of the Products, not attributable to intent or deliberate recklessness by Realize Mode, the Customer cannot claim any compensation concerning these Products.
8. Complaints and Customer’s Duty of Investigation
- 8.1 The Customer must inspect the delivered Products and/or Services immediately after delivery or upon completion of the Services. This inspection must verify whether the quality and/or quantity matches what was agreed upon or at least meets the requirements applicable in normal trade relations.
- 8.2 Any visible defects or shortages must be reported to Realize Mode in writing within 5 business days after delivery. The notice must include a detailed description of the defect, allowing Realize Mode to respond adequately. The Customer must provide sufficient evidence of the defect for verification. This notification obligation applies equally to hidden defects and/or shortcomings in the Services provided by Realize Mode.
- 8.3 If the Customer does not report any defects within the timeframe specified in Article 8.2, the Products and/or Services are considered to meet the Agreement’s terms, and any claims by the Customer are forfeited.
- 8.4 Realize Mode must be given the opportunity to investigate complaints about defects or shortages and to remedy the situation if necessary. The Customer is obliged to cooperate fully with such investigations.
- 8.5 Complaints regarding an invoice must also be submitted in writing, within 5 business days of the invoice date. In the absence of timely complaints, the Customer is deemed to have accepted the invoice.
- 8.6 Filing a complaint does not suspend the Customer’s payment obligations.
9. Warranty
- 9.1 Realize Mode guarantees that the Products and Services provided meet the customary requirements and standards applicable in normal business use in the Netherlands. The warranty applies only if the Products and/or Services are used in accordance with their intended purpose.
- 9.2 Realize Mode does not guarantee that the delivered Products will comply with laws or regulations in countries other than the Netherlands unless explicitly agreed otherwise.
- 9.3 The warranty does not apply in the following cases:
- a. If the defect is due to improper or negligent use by the Customer, including improper storage or maintenance.
- b. If the defect arises due to the Customer or third parties altering or repairing the Products without prior written permission from Realize Mode.
- c. If the defect results from external factors such as weather conditions, fire, or water damage.
- 9.4 Realize Mode’s warranty obligation is limited to replacing or repairing defective Products or re-performing defective Services, at Realize Mode’s discretion, or crediting the amount invoiced for the defective Products or Services.
- 9.5 The warranty period is 6 months from the delivery date, unless otherwise explicitly agreed in writing.
10. Liability
- 10.1 Realize Mode’s liability is limited to the terms explicitly mentioned in these General Terms and Conditions.
- 10.2 Realize Mode is not liable for indirect damages, including but not limited to consequential damages, lost profits, lost savings, or business interruptions.
- 10.3 Realize Mode is only liable for direct damages caused by an attributable failure to meet its obligations. Direct damages are exclusively defined as:
- a. Reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage as defined in these terms.
- b. Any reasonable costs incurred to have Realize Mode’s defective performance meet the Agreement’s terms, unless such failure is not attributable to Realize Mode.
- c. Reasonable costs incurred to prevent or mitigate damage, insofar as the Customer demonstrates these costs reduced direct damages as defined in these terms.
- 10.4 In any case, Realize Mode’s liability is limited to the invoice value of the part of the Agreement to which the liability relates or to the amount paid by Realize Mode’s liability insurance in the applicable case.
11. Payment
- 11.1 Realize Mode determines the payment terms. Realize Mode is free to request an advance payment before starting the execution of the Agreement or Order.
- 11.2 Realize Mode applies a payment term of 14 days from the invoice date, unless the Parties have agreed otherwise in writing. The value date on the bank statement is decisive and is considered the payment day.
- 11.3 Any payment discount offered by Realize Mode for timely payment of the invoice will automatically lapse if the Customer does not settle the invoice within the period set by Realize Mode.
- 11.4 If the Customer has objections to the received invoice, they must notify Realize Mode of these objections in writing within 5 working days from the invoice date, failing which the accuracy of the invoice will be considered established.
- 11.5 The Customer is never entitled to suspend their obligations towards Realize Mode and/or to offset them against any claim they may have against Realize Mode. Objections to the amount of an invoice or complaints about the delivered Products do not give the Customer the right to suspend payment.
- 11.6 If the Customer does not pay the invoice within the payment term, the Customer is automatically in default without any prior notice of default being required. From the default date, the Customer owes statutory commercial interest per month or part of a month on the amount due. Interest on the payable amount will be calculated from the moment the Customer is in default until the full amount is paid.
- 11.7 All costs, both judicial and extrajudicial, incurred by Realize Mode to enforce its rights, are for the Customer’s account. The extrajudicial costs will, contrary to legal regulations, be set at 15% of the amount involved, with a minimum of EUR 500 excluding VAT. The Customer also owes interest on the collection costs.
- 11.8 If Realize Mode suffers damage due to the Customer’s refusal to pay, in any form, the Customer is liable for this damage.
- 11.9 Payments from the Customer will first be applied to reduce outstanding costs and interest (in this order), then to the principal amounts and ongoing interest, with older claims taking precedence over newer ones. Realize Mode can refuse a payment offer, without being in default, if the Customer designates a different order for the allocation of the payment. Realize Mode may refuse full repayment of the principal amount if the outstanding interest and collection costs are not also paid.
- 11.10 If it is deemed necessary by Realize Mode, and in any case if the Customer defaults on any payment obligation for any reason, Realize Mode has the right, after entering into an Agreement, to demand advance payment or provide security for the Customer’s payment obligations. The Customer must comply with such a request from Realize Mode without delay.
- 11.11 If the Agreement is made with more than one Customer, all Customers are jointly and severally liable for the fulfillment of the payment obligations under the Agreement (regardless of the name on the invoice).
- 11.12 Realize Mode is always entitled to request an advance payment from the Customer or, if Realize Mode wishes to cover the orders it supplies with a credit insurer of its choice, to have the Customer cooperate in a credit assessment.
- 11.13 If the Customer fails to comply with article 11.2 or does not respond to a request from Realize Mode as referred to in article 11.12, or refuses to cooperate in a credit assessment, or if no positive credit rating is issued, Realize Mode is authorized to:
- deliver the Products by means of a written notice, in which case the Products will be stored at Realize Mode’s or a third party’s premises from the moment of the written notice, at the Customer’s cost and risk, including the risk of quality deterioration, until the full purchase price is paid; or
- terminate the Agreement with the Customer, either fully or partially, without the need for a notice of default and sell or deliver the Products to a third party. In that case, the Customer is liable for the costs and damages incurred by Realize Mode due to non-payment and must compensate these; or
- suspend its obligations to the Customer under the Agreement, either fully or partially.
- 11.14 In the event of termination, cancellation, or suspension of the Agreement, Realize Mode is never obliged to provide any form of compensation to the Customer, unless the facts and circumstances underlying the termination, suspension, or cancellation are attributable to Realize Mode. If Realize Mode chooses to suspend its obligations to the Customer, the provisions of article 13 apply to the Parties.
- 11.15 The Customer is never entitled to suspend any of their obligations and/or offset them against claims from Realize Mode, whether these claims are due or not.
12. Duration of the Contract and Termination
- 12.1 Notwithstanding the other rights that Realize Mode has under the General Terms or the law, Realize Mode is entitled to terminate the Agreement with the Customer immediately and without judicial intervention by means of a single written notice, without being liable for any compensation, without prejudice to any further rights, in the following cases:
- a. if the Customer fails to fulfill one or more of its obligations under an Agreement;
- b. if the Customer is declared bankrupt or enters into a suspension of payments;
- c. if a petition for bankruptcy is filed against the Customer or a petition for suspension of payments;
- d. if the Customer offers an agreement to its creditors;
- e. if the Customer’s business ceases or threatens to cease;
- f. if third parties impose a lien on the Customer’s assets;
- if, after the conclusion of the Agreement, circumstances come to Realize Mode’s attention that give reasonable grounds to fear that the Customer will not fulfill its obligations properly and/or on time, and/or if Realize Mode considers that the collection of existing or future claims cannot be assured;
- g. if the Customer fails to fulfill an obligation arising from an Agreement concluded between Realize Mode and the Customer or under the law, and is in default;
- h. if the delay on the part of the Customer means that Realize Mode can no longer be expected to fulfill the Agreement under the originally agreed conditions;
- i. if circumstances arise that make the performance of the Agreement impossible, or if other circumstances arise that make it unreasonable for Realize Mode to continue the Agreement unchanged;
- j. if the Customer infringes the Intellectual Property Rights of Realize Mode;
- k. if Realize Mode ceases its business activities or, for any reason, is no longer authorized to use all or any of the Brands and/or Intellectual Property Rights.
- 12.2 Upon termination of the Agreement, all claims of Realize Mode against the Customer become immediately due and payable.
- 12.3 If the termination is attributable to the Customer under article 12.1, Realize Mode is entitled to compensation for its damage, including the costs it incurs as a result.
- 12.4 After the termination of an agreement between Realize Mode and a Customer for any reason, the Customer must immediately, upon Realize Mode’s request, provide Realize Mode with a report containing (a) the stock of the Products held by the Customer or a third party on behalf of the Customer, and (b) the promotional materials held by the Customer or a third party on behalf of the Customer. Additionally, the Customer must, at their own expense and upon Realize Mode’s request, immediately return all Products, promotional materials, hangers, and other items held by the Customer, including samples, price lists, business information, etc., to an address specified by Realize Mode, without retaining any Products, promotional materials, hangers, or other items.
- 12.5 After termination of an agreement between Realize Mode and a Customer, the Customer must fulfill their obligations to consumers regarding the Products, particularly handling returns and/or complaints about the Products on behalf of Realize Mode.
- 12.6 If an Agreement between the Customer and Realize Mode is terminated, Realize Mode has the right to also terminate any underlying purchase agreements and/or orders immediately. If Realize Mode decides not to terminate these purchase agreements and/or orders, the Customer is obligated to fulfill all their obligations under these purchase agreements and/or orders.
13. Non-Compliance Fear
- 13.1 If, after the conclusion of the Agreement, circumstances come to Realize Mode’s attention that give it reasonable grounds to fear that the Client will not fulfill one of its obligations, or will not fulfill it correctly or on time, including in the case of bankruptcy or suspension of payment or when an application for one of these measures concerning the Client is pending, or in the case of a decision for the dissolution or merger of the Client, or if provisional or executory attachment is levied on any part of the Client’s assets, or if the Client fails to meet any payment obligation to Realize Mode, all payment obligations of the Client to Realize Mode, under any title, will become immediately and fully due. Realize Mode is entitled to demand immediate payment of these payable claims or a security for these payable claims.
- 13.2 In such cases, Realize Mode is entitled to suspend the fulfillment of its obligations to the Client until payment and/or security for all payment obligations has been made. If Realize Mode does so, it is in no way liable for any damage and costs that may arise on the part of the Client.
- 13.3 The Client is liable for all damage arising from this to Realize Mode.
14. Liability
- 14.1 If it is determined in court or otherwise that Realize Mode is liable to the Client for damage suffered in connection with the Agreement, or due to unlawful acts, infringement of (intellectual) property rights of third parties, or for any other reason, this liability, including any payment obligation under Article 6:230 BW and/or Article 6:271 BW, is at all times limited to what is provided in this clause:
- a. Realize Mode is never liable for damage caused by relying on incorrect data/files provided by or on behalf of the Client;
- b. Realize Mode is never liable for the loss of profit, lost income, lost revenue, missed savings, or damage caused by business and other types of stagnation suffered by the Client;
- c. The liability of Realize Mode, including any payment obligation under Article 6:230 BW and/or Article 6:271 BW, to the Client is at all times limited to the amount that Realize Mode’s liability insurance pays out in the relevant case;
- d. In the event that Realize Mode’s liability insurance, for whatever reason, does not pay out, the liability of Realize Mode, including any payment obligation under Article 6:230 BW and/or Article 6:271 BW, is limited to:
- the Net Invoice Value of the invoice relating to the Products that caused the damage, or if multiple invoices relate to the damage-causing event, the Net Invoice Value of the last of these invoices sent by Realize Mode to the Client prior to the occurrence of the damaging event;
- or, if the damage-causing event is not related to the delivery of Products, or no invoice has been issued for that, the Net Invoice Value of the last invoice sent by Realize Mode to the Client before the damage-causing event occurred; and
- the total liability—regardless of the number of damage-causing events—will never exceed EUR 15,000 (fifteen thousand euros).
- 14.2 These limitations do not apply in cases of intent or gross negligence by Realize Mode and/or its executives.
- 14.3 All employees of Realize Mode can rely on the above provisions equally as Realize Mode, both towards the Client and, if necessary, towards third parties.
- 14.4 Damage for which Realize Mode can be held liable must be reported to Realize Mode in writing as soon as possible, but no later than 30 days after its occurrence, under penalty of forfeiture of the right to compensation for this damage. This period does not apply if the Client can prove that the damage could not reasonably have been reported earlier.
- 14.5 A liability claim against Realize Mode expires within 12 months after the Client became aware of the damaging fact or reasonably could have become aware of it.
15. Indemnity
- 15.1 The Client is liable for all damages, losses, costs, and expenses suffered by Realize Mode, its affiliated companies, or third parties as a result of or in connection with a failure by the Client to perform an Agreement, regardless of whether the damage was caused by the Client, its personnel, or another (legal) person or thing for which the Client is legally liable.
- 15.2 The Client indemnifies and holds harmless Realize Mode and its affiliated companies from any claims by third parties concerning damages, losses, costs, and expenses arising from or related to the Client’s failure to perform an Agreement or other third parties as a result of a filed claim, pending lawsuit, or threat thereof, including but not limited to claims referred to in Articles 6:185 jo. 190 BW, as well as the franchise amount mentioned in these articles, and claims for infringement of any intellectual property rights related to the delivered goods.
- 15.3 If Realize Mode is sued by third parties in this regard, the Client is obliged to assist Realize Mode both in and out of court and to do everything that may reasonably be expected from it in this case.
- 15.4 The Client must ensure adequate insurance for the execution risks as described above. The Client must, upon first request by Realize Mode, demonstrate that it has met this obligation. The Client is always responsible for the excess. If the Client can claim compensation under an insurance contract for its liability towards Realize Mode, the Client must ensure that the payouts are made directly to Realize Mode. Any payment to Realize Mode from the Client’s insurance contract does not affect Realize Mode’s claims for damages against the Client if these exceed the payment.
- 15.5 The Client is always obliged to take all necessary steps to limit the damage.
- 15.6 If the Client fails to take adequate measures, Realize Mode is entitled to take such measures itself, without notice of default. All costs and damages incurred by Realize Mode and third parties due to this are entirely at the Client’s expense and risk.
16. Force Majeure
- 16.1 Force majeure, as referred to in Article 6:75 of the Dutch Civil Code (BW), in these Terms and Conditions, is understood to mean, in addition to what is defined by law and jurisprudence, all external causes and their consequences, whether foreseeable or not, over which Realize Mode has no control, making it impossible for Realize Mode to fulfill its obligations, or making the performance of the agreement unreasonably difficult and/or disproportionately expensive, such that it is not reasonably expected from Realize Mode to comply with the agreement. This includes, but is not limited to:
- strikes in Realize Mode’s company or that of third parties;
- regulations or requests from a government agency and/or a local authority and/or any individual authorized to act on behalf of such an authority;
- changes in laws and/or regulations making it impossible or unreasonably expensive for Realize Mode to comply with its obligations;
- extreme weather conditions;
- epidemics and pandemics and the resulting (government) measures;
- defects and/or failures in equipment, machinery, and/or instruments necessary for the delivery of the Products;
- shortages of raw materials, factory or transportation disruptions of any kind;
- the situation where Realize Mode cannot receive a performance that is important for the performance it is required to provide;
- staff shortages or unavailability.
- 16.2 Realize Mode also has the right to invoke force majeure if the situation that prevents (further) performance of the agreement occurs after Realize Mode was supposed to fulfill its obligations.
- 16.3 During the period in which force majeure continues, Realize Mode may suspend its obligations under the agreement. If this period exceeds two months, both Realize Mode and the Client have the right to terminate the agreement, without any obligation for compensation to the other party.
- 16.4 Realize Mode is entitled to demand payment for any performance already rendered under the agreement prior to the onset of force majeure.
17. Intellectual Property Rights
- 17.1 The Client may not use Realize Mode’s trade name or trademarks, nor any words, images, or symbols that, in the Client’s opinion, may imply Realize Mode’s involvement or approval in any written or oral advertisement, presentation, brochure, newsletter, or other published material, without the prior written consent of Realize Mode.
- 17.2 The products delivered to the Client under an agreement do not include the transfer of any intellectual property rights. All designs of the products provided by Realize Mode under the agreement remain the property of Realize Mode. The Client expressly acknowledges the intellectual property rights on the products and designs of Realize Mode and guarantees that it will not infringe on Realize Mode’s intellectual property rights. The Client may only sell these products to third parties and use them for the execution of the agreement, within the limits of the agreement, and may not reproduce, disclose, or make these products or their underlying designs available to third parties or use them in any other way without the prior express written consent of Realize Mode.
- 17.3 All intellectual property rights used or created in the execution of the agreement and/or incorporated in the products or advice, including but not limited to products, production processes, applications, concepts, designs, drawings, inventions, models, techniques, works, methods, results, creations, presentations, computer programs, know-how, databases, and other knowledge, belong exclusively to Realize Mode, unless otherwise agreed in writing.
- 17.4 The Client is not allowed to remove or alter any indication of copyrights, trademarks, trade names, or other intellectual property rights from the products delivered by Realize Mode or the associated materials.
- 17.5 The images and all intellectual property rights arising from them, provided by Realize Mode to the Client, are the exclusive property of Realize Mode. The Client may only use Realize Mode’s image material under the conditions set by Realize Mode. The Client must strictly adhere to the conditions and guidelines for using Realize Mode’s image material.
- 17.6 If a third party infringes on the intellectual property rights of Realize Mode, the Client is obliged to inform Realize Mode in writing. Realize Mode will then decide whether or not to take action against this infringement. Realize Mode is never obligated to pay any compensation for damages suffered or to be suffered by the Client as a result of an infringement by the Client.
18. Confidentiality / Non-Disclosure
- 18.1 Both Parties are obligated to maintain confidentiality regarding information that either party knows or reasonably suspects to be confidential.
- 18.2 The Client will treat the contents of the agreement, the intellectual property rights, and guidelines of Realize Mode, and these Terms and Conditions as confidential information, which falls under the Client’s obligation of confidentiality.
- 18.3 Both Parties will treat all data received from each other in connection with the performance of the agreement as confidential and will not disclose it to any third party, unless disclosure is necessary for the execution of the agreement, nor use it for purposes other than the performance of the agreement. Both Parties will impose these obligations on their employees and third parties involved in the execution of the agreement.
- 18.4 If the Client breaches the confidentiality obligation, the Client will, without the need for a formal notice, incur an immediately payable fine of €25,000 (in written: twenty-five thousand euros) and a fine of €2,500 (in written: two thousand five hundred euros) for each day or part thereof that the breach continues, without prejudice to Realize Mode’s right to separately claim damages or costs and/or demand compliance, termination, or cancellation of the agreement.
19. Transfer of Rights and Obligations
- 19.1 The Client is not entitled to sell and/or transfer the rights and/or obligations under the agreement to a third party.
- 19.2 Realize Mode is entitled to sell and/or transfer the rights and/or obligations under the agreement to a third party, as well as transfer its claims for payment to a third party without the prior written consent of the Client.
20. Waiver of Rights
- 20.1 The failure of either party to strictly enforce any provision or provisions of the agreement does not constitute a waiver of such provision or a relinquishment of any right. Each party may at any time demand strict and full performance of the provisions of the agreement.
21. Applicable Law and Disputes
- 21.1 Dutch law exclusively applies to all legal relationships in which Realize Mode is a party, even if an obligation is partly or wholly performed abroad, or if a party to the legal relationship resides there. The applicability of the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
- 21.2 Disputes arising in connection with an agreement (including disputes about the existence and validity of an agreement) will be exclusively settled by the competent court in Amsterdam, unless mandatory provisions of law dictate otherwise. Nevertheless, Realize Mode has the right to submit the dispute to the court that is competent under the law. If necessary, in deviation from Article 21.1, the dispute will be settled according to the law of the country where the case against the Client is filed, should Realize Mode choose the application of that law.
- 21.3 If the Terms and Conditions or an agreement are drawn up in a language other than Dutch, it is solely for the convenience of the user of the other language; in all cases, the Dutch text is decisive for the interpretation and execution of the agreement.