Gerechtshof Amsterdam, 24-10-2023, ECLI:NL:GHAMS:2023:2715, 200.316.329/01

Op 1 januari 2018 is de distributieovereenkomst voor de periode vanaf die datum tot en met 31 december 2019 tussen partijen gesloten. In deze distributieovereenkomst (hierna: de overeenkomst) is, voor zover hier van belang, bepaald:

“(...)

ARTICLE 1 – DISTRIBUTION RIGHTS

Independent Contractor. Distributor shall be deemed an independent contractor working for its own account. (...).

(...)

ARTICLE 4 – PURCHASING PROCESS

(...)

Purchase Requirements. Purchases shall be made at least every ninety (90) days and only after Distributor’s payment account with Skullcandy is current.

(...)

ARTICLE 5 – ACCEPTANCE AND PAYMENT

(...)

Payment. All invoices for Products shall be made in USD (...). In the event that any payment by Distributor is more than 60-days late, Skullcandy reserves the right to (...) demand advance payment, letter of credit or other security for payment for all pending or future orders. Additionally, Skullcandy shall have the right to (...) terminate the Agreement for breach pursuant to Article 10 in its sole discretion with no financial or other obligation to Distributor.

(...)

ARTICLE 10 – TERM AND TERMINATION

(...)

Extra-ordinary Termination for Non-Material Breach. In the event of any other breach of this Agreement, a party will have thirty (30) days from the date of receipt of written notice of a breach from the other party to cure the breach. If the breach remains uncured, the party giving notice may immediately terminate the Agreement. Notwithstanding the foregoing, Distributor’s failure to timely pay three (3) invoices shall be deemed grounds for immediate termination with instant effect.

(...)

ARTICLE 11 – OBLIGATIONS OF THE PARTIES UPON EXPIRATION OR TERMINATION

(...)

Account Balance Due. All moneys owed by Distributor to Skullcandy will become immediately due and payable on the effective date of the termination (...) of the Agreement, (...).

(...)

Repurchase of Inventory. Upon termination or expiration of the Agreement, Skullcandy will have first right of refusal to repurchase any Products Distributor may have in stock, (...).

(...)

Effect of Termination. As soon as a Termination notice is delivered, the exclusive distribution rights under this Agreement will cease and Skullcandy will have the right seek and develop other relationships and channels to maintain Skullcandy’s distribution.

(...)

ARTICLE 13 – MISCELLANEOUS TERMS

(...)

Applicable Law. Venue. Skullcandy and Distributor acknowledge that this Agreement shall be governed by the laws of the Netherlands. (...). Exclusive place of jurisdiction for any claim raised by Distributor out of or in connection with this Agreement shall be in Amsterdam, the Netherlands Skullcandy may sue Distributor out of or in connection with this Agreement before the courts of Amsterdam, the Netherlands, (...).

(...)”

Op 28 mei 2019 heeft Skullcandy aan June bericht dat op dat moment een totaalbedrag van $ 497.721,15 aan June is gefactureerd over de periode van 25 december 2018 tot en met 16 mei 2019. In die e-mail is het volgende overzicht opgenomen:

“(...)

Bij e-mail van 3 juni 2019 heeft June aan Skullcandy geschreven :

“(...)

Based on the payment plan, we have been bringing down the total exposure from over 800K to around 460,000 today (Including 205K due in the month of June). When we started reducing the balance, we paid an amount and we got shipments released for a certain amount.

Now however, we have no clue what to expect from you in terms of shipment releases. When we cleared the first payment in our plan, a shipment was released. When the April payments were paid albeit in May, no shipments were released. Now we have another 200K being paid (...) we have no idea what or if a product shipment will be released. (...).

(...)”

Skullcandy heeft diezelfde dag geantwoord aan June:

“(...) we are simply awaiting follow through on the payment plan that had been agreed upon (...). To make sure we are all aligned, I will recap that here:

 April, $275K promised before the end of month. Only $80K received in April.

o The balance of $195K was received in May.

 May, $375K promised before end of month. $0 received in May.

o We haven’t received any payments based on the May payment plan.

o It is now June 3rd and we have an overdue balance of $375K (...)

o Jita has communicated that payment will be made after the Eid holiday, but we haven’t been given a total amount or an exact payment date.

**Keep in mind, the payment plan that we agreed upon is to clear up invoices that are overdue, in some cases by 3+ months (...).

We were planning on releasing the next shipment after getting paid by the end of May. Last Friday was May 31st, and because we didn’t get paid, we can’t release anything to be shipped yet.

What would be really helpful is if you can provide an exact date and total dollar amount that you will be paying so we can plan for June accordingly.

(...)”

Op 3 juli 2019 heeft Skullcandy bericht:

“(...) we didn’t receive the money or an update. Skullcandy needs to be paid for the inventory sold to you.”

Op 4 juli 2019 heeft June bericht:

“(...) another 90k left today. Will send you the details.”

Op 7 juli 2019 heeft June aan Skullcandy een forecast voor de tweede helft van het jaar gestuurd.

Op 8 juli 2019 heeft Skullcandy daarop geantwoord:

“ (...) Thank you (...). I (...) would like a chance to connect with Finance team before we connect (..)”.

Op 8 juli 2019 heeft June aan Skullcandy meegedeeld:

“(...) Attached please find the copy of the transfer for USD 90,000. As mentioned in my previous email that ADIB bank sent, the $ 136k was supposed to be done from their facility. They were confident that the transfer would leave, but due to some additional documentation the transfer is still on hold. We are working closely with them to get this resolved. Nevertheless we needed to be sure you received some funds so we initiated the USD 90k transfer from our bank RAKBANK. I have also initiated another direct transfer today of USD 50K from RAKBANK and will send you the details by tomorrow. We are working to ensure that we are update at the earliest. (...)”

Op 9 juli 2019 heeft Skullcandy bericht:

“(...) the $90k was only just rec’d yesterday, Monday. When will the $50k be rec’d? It is not in our bank today.”

June heeft diezelfde dag geantwoord:

“(...) I think you should see it in your acc tomorrow. Will send you advice tomorrow.”

Bij brief van 10 juli 2019 heeft Skullcandy aan June geschreven :

“(...)

Please accept this correspondence as notice of termination of the Exclusive Distribution Agreement dated January 1, 2018 (...). This cancellation is a result of your material breach of the Agreement. Termination is effective immediately.

Additionally we show an outstanding balance of $205,501.75, see the table below.

(...)

Bij e-mail van 16 juli 2019 heeft Skullcandy aan June bovenstaande tabel van uitstaande betalingen nogmaals toegestuurd en daarbij bericht :

“(...) I’m writing to kindly request payment of the full overdue amount by Thursday, August 15th. We hope that you use this opportunity to settle the debt amicably. Any open balance will be turned over to a collection agency and legal action will be taken if payment is not received by that date.

(...)”

Op 8 augustus 2019 heeft June de volgende e-mail verstuurd aan Skullcandy:

“(...)

Please see below the details of the stock we are returning. Also attached are the closing Skullcandy marketing and certification expenses outstanding. We expect immediate remittance of the balance owed to JUNE by Skullcandy less the balance of $205,501.75.

MARKETING EXPENSES $ 36,706.65 (...)

CERTIFICATION EXPENSES $ 12,451.56 (...)

STOCK IN HAND $ 74,589.00 Stock Return

PRIOR CONSIGNMENT STOCK $ 124,577.00 Stock Return

TOTAL OUTSTANDING $ 248,324.21

LESS BALANCE $ 205,501.75

AMOUNT OUTSTANDING $ 42,822.46

(...)”