General terms and conditions of Sale and Delivery
Article 1. Definitions
In these Terms and Conditions, the following definitions apply:
Seller: MAISONIREM B.V. a private limited company;
Buyer: natural person or legal entity that is party to an agreement or another legal relationship with the Seller or to whom the Seller has made an offer, proposal or quote;
Agreement: any agreement between the Seller and the Buyer concerning the delivery of a Performance to the Buyer by the Seller, and any change or amendment thereto, as well as any (legal) acts in preparation or execution of such agreement;
Consumer: a natural person who is not acting in the context of practicing a profession or carrying on a business;
Distance Contract: a contract concluded between Seller and the Consumer whereby, in the context of a system for the distance selling of products and/or services, only one or more Type(s) of Distance Communication is or are used up to and including the conclusion of the contract;
Performance: any Products delivered and/or to be delivered and Services performed and/or to be performed by the Seller to the Buyer;
Product: any products, including but not limited to components, materials and/or other items delivered by the Seller to the Buyer;
Right of withdrawal: the right that the Consumer has within the Withdrawal Period to cancel the Distance Contract;
Services: any services performed and/or to be performed by the Seller to the Buyer, however described;
Standard Withdrawal Form: the European Standard Withdrawal Form included in Appendix I to these general terms and conditions;
Terms and Conditions: these general terms and conditions for delivery;
Type of Distance Communication: a means that can be used for communication regarding the offer made by the trader and concluding a contract, without the necessity of the Consumer and Seller having to be physically present or represented in the same space at the same time;
Withdrawal Period: the term within which the Consumer may exercise his Right of Withdrawal;
Website: the website with the address www.maisonirem.com, or any other website of Seller;
Identity of Seller
Castricummer werf 102
Telephone numbers: + 31 (0)6 21 21 3548
Chamber of commerce number: 77220544
VAT identification number: NL860938426B01
Article 2. Applicability and validity
2.1 These Terms and Conditions are applicable to and constitute a part of all offers, quotations, proposals made by Seller to the Buyer and to all Agreements, of whatever nature concluded between the Seller and the Buyer, including Distance Contracts, regarding to (a part of) the Performance, whatsoever and howsoever described.
2.2 The applicability of any purchase conditions or any other conditions of the Buyer, under any name whatsoever, are explicitly excluded and rejected, unless these are expressly accepted in writing by the Seller in respect of any specific transaction.
2.3 A failure by the Seller to exercise a right under these Terms and Conditions and/or an Agreement, or a delay thereof shall not operate as a waiver of such right. No single or partial exercise of a right under the Terms and Conditions and/or Agreement by the Seller shall preclude any other or further exercise of such right or other rights.
2.4 The Seller is entitled to transfer any rights and obligation ensuing from any Agreement and/or these Terms and Conditions to third parties, without any (additional) prior consent of the Buyer being required.
2.5 The Seller has the right to amend and/or supplement these Terms and Conditions at any time. The Seller will notify the Buyer of any amendment or supplement in writing. The Buyer accepts such amendment or supplement in advance. Unless the Buyer complains in writing within two weeks of the date of the written notification being sent, the Buyer is deemed to have tacitly approved of the amendment or supplement.
2.6 In the event one or more provisions of the Terms and Conditions are fully or partially void or voidable, the other provisions of these Terms and Conditions remain in force. In such event, the Seller and the Buyer will consult each other in order to agree on new provisions which are not void nor voidable, to replace the void or voidable provisions and which new provisions as closely as possible correspond with the void or voidable provision, whereby the intent and meaning of the original provisions shall be taken into consideration in as much as possible.
Article 3. Offers and the formation of Agreements
3.1 All offers, quotes, proposals etc. made or issued by the Seller are without any obligation, unless the contrary has been stated expressly by the Seller in writing. Offers, quotes, proposals, etc. also include price lists, brochures and other information provided.
3.2 Documentation materials in or accompanying any offer, quotation or proposal in any form, are, unless stipulated otherwise in writing, for information purposes only and shall not be binding to Seller. Seller will observe the utmost care in providing any statements of prices, numbers, sizes, weight, colors, pictures and/or other specifications of the Products and/or Services. Documentation, samples, drawings or models etc. shown or provided are only indications of the Products and/or Services concerned, and Buyer cannot derive any rights therefrom. Seller does not guarantee the absence of any deviations. Seller makes a reservation with regard to in the branch usual margins.
3.3 The Seller cannot be bound to its quotes, proposals or offers if the Buyer can reasonably understand that the quotes, proposals or offers, or a part of a quote, proposal or an offer, manifestly contain a mistake or obvious errors.
3.4 If the Buyer provides or must provide any data, information and/or specifications, the Buyer will be fully responsible for these data, information and/or specifications, including but not limited to the accuracy and the timely supply thereof. The Seller accepts no liability with regard to such data, information and/or specifications.
3.5 If the reply to an offer by the Buyer differs or contains additions, limitations or other modifications from the offer of the Seller (whether or not the difference/additions/limitation/modification pertains to points of minor significance), the Seller shall not be bound by the difference, additions, limitations or other modifications, unless the Seller explicitly states otherwise in writing. In that event, the Agreement is concluded in conformity with the offer of the Seller, unless the Seller states explicitly otherwise in writing.
3.6 Offers, quotations, proposals and/or any agreed upon deviations, do not automatically apply to any future Agreement. The Buyer cannot derive any rights from any offers, quotations, proposals and/or any agreed upon deviation, for other and/or future transactions.
3.7 An Agreement is concluded if and when the Buyer places an order with the Seller and the Seller accepts this order or confirms an order in writing or via an electronic confirmation (such as e-mail) or after Seller has started to perform the Agreement. An order can be placed in any form.
3.8 The Seller may obtain information – within statutory frameworks – about the Seller’s ability to fulfill his payment obligations, as well as about facts and factors that are important for the responsible conclusion of the Distance Contract. If that research gives the Seller proper grounds for declining to conclude the Agreement, then he has a right supported by reasons to reject an order or application or to bind its implementation to special conditions.
3.9 The Buyer guarantees that the person placing an order on behalf of the Buyer is authorized to conclude an Agreement with the Seller.
Article 4. Materials and data provided by the Seller & intellectual property
4.1 Design drawings, working and detailed drawings, models, computer software, photographic recordings, samples, designs, logos, quoted dimensions, quantities, drawings, colors, materials, technical specifications and/or other materials and data, provided by the Seller to the Buyer, can only be considered as an approximate description of the Products or Service. The Seller does not guarantee the correctness and completeness of these materials and data.
4.2 The ownership of the materials and data mentioned in this article 4, or any related right thereto, does not transfer to the Buyer. On Seller's demand, the Buyer has to return the abovementioned materials and data to the Seller, at Buyer's expense.
4.3 The Buyer can only use the materials and data referred to in this article 4, in accordance with and for the purpose of the execution of the Agreement. Without prejudice to the above, none of the goods or the materials and data referred to in this article may be given for inspection or be transferred to third parties, for reuse or otherwise, without prior written approval from the Seller.
4.4 All (intellectual property) rights, developed during the Performance and all (intellectual property) rights whether or not existing as of the date of the Agreement, relating to the Performance or other materials such as designs, analyses, documentation, reports, quotations, the materials and data mentioned in article 4.1 and all other materials developed or made available to the Buyer during or in the context of the Agreement, including without limitation all trademarks, copyrights, patents, trade secrets, know-how, technology, data, designs, specifications, materials, processes, computer software and related documentation and source code and other (intellectual property) rights and knowhow, are and shall remain the exclusive property of the Seller, its licensors or its suppliers. Nothing in these Terms and Conditions implies the transfer of any intellectual property right to the Buyer.
4.5 The Buyer undertakes not to infringe or to attack the Seller's (intellectual property) rights in any way, directly or indirectly, by use or otherwise and acknowledge that the Seller is the beneficiary with regard to these rights.
4.6 The Buyer shall ensure that all information received from the Seller that is known or should reasonably be known to be of a confidential nature is kept secret and the Buyer will not disclose any of such information to any third party. The Buyer shall only use such confidential information for the purpose for which it has been provided, Information shall in any event be regarded as confidential if it is designated as such by the Seller.
Article 5. Terms of delivery
5.1 All (delivery/completion/performance) periods, terms and/or dates, including dates for the Performance, agreed upon or specified by the Seller shall in all cases be target dates, shall not have a binding effect on the Seller, shall never be considered a final deadline and shall in all cases be merely indicative. The mere fact that a (delivery/completion/performance) period, term or date, final or otherwise, specified by the Seller or agreed between the parties, has been exceeded, shall not mean that the Seller is in default. In cases of late delivery of the Product or late completion of the Service, the Seller shall only be in default upon notification of default in writing, providing the Seller the opportunity to perform within a reasonable period, and the Seller does not comply with its obligations after the aforesaid period. The notice of default by the Buyer must contain as comprehensive and detailed a description of the breach as possible, in order to ensure that the Seller has the opportunity to respond adequately.
5.2 The Seller shall not be bound by a (delivery) period, term or date, final or otherwise, that can no longer be achieved as a result of circumstances outside of the Seller's control that occurred after the date on which the Agreement was concluded.
5.3 The delivery time commences on the date the Agreement is effectuated. If Seller requires data or auxiliaries for the execution of the Agreement that have to be provided by Buyer, the delivery time will start to run on the date that all required data or auxiliaries are in the possession of Seller if and when that is later than the date of effectuation of the Agreement.
5.4 Seller shall at all times be entitled to deliver the Performance in installments. In the event of a delivery in installments, Seller shall be entitled to invoice each partial delivery separately.
5.5 Delivery of the Products shall take place “Ex Works” (EXW) of factory or warehouse of Seller in the Netherlands, in accordance with the most recent Incoterms of the International Chamber of Commerce in force at the time when the Agreement is concluded. Delivery shall have deemed to have taken place at the time when the Products are made available to the Buyer. If the Buyer fails to collect the Products in full or in time or fails to provide information or instructions necessary for the delivery, Seller is entitled to store the Products at the expense and risk of the Buyer or to sell them to a third party. The Seller will nevertheless be due the purchase price plus interest and costs by way of damages, increased by storage and handling costs.
5.6 All Products shall be transported for the account and risk of the Buyer, even if the Seller has arranged the transport and/or where the dispatch is made carriage paid.
5.7 The Seller shall provide all Services on the basis of best efforts obligation, unless and in so far as the Seller has explicitly undertaken in the written Agreement to achieve a specific result and the result in question is sufficiently determined.
5.8 If the Buyer fails in the proper performance of its obligations towards the Seller, the Buyer shall be liable for all damage (including costs) incurred by the Seller arising from that failure, either directly or indirectly.
Article 6. Prices, invoicing and payment
6.1 All prices for the Performance are net prices in Euros, without reduction and excluding VAT and any other taxes, duties, levies, costs and charges owed at the time of delivery, unless expressly stated otherwise in writing. Prices do not include shipping charges, which are invoiced in addition to the prices of the Products and/or Services. In case an order involves delivery which is subject to customs, documentary and other requirements, it is the responsibility of the Buyer to pay for any such taxes, import duties and other fees.
6.2 The Seller is entitled to modify the indicated prices at any time, before the conclusion of the Agreement.
6.3 All cost estimates and budget issued by the Seller shall be merely indicative, except where specified otherwise in writing by the Seller.
6.4 Except where explicitly agreed otherwise, the prices of the Products are based on delivery Ex Works, factory or warehouse of Seller in the Netherlands, in accordance with the most recent Incoterms in force at the time when the Agreement is concluded, and shall not include the costs of transport, insurance, tackles and hoists, the hiring of temporary facilities, etc.
6.5 Any changes in factors affecting the price for the Products, Services or Seller’s additional costs, including, but not limited to purchase prices, exchange rates, import and export duties and other levies due upon import or export, insurance rates, freight rates and other levies or taxes after the conclusion of the Agreement will be recharged by Seller to Buyer. In case the consequence of this provision causes a price increase of more than 10% within three (3) months after the conclusion of the Agreement, Buyer has the right to terminate the Agreement in writing within fourteen (14) calendar days of being informed of the price modification in writing. The Seller is not liable to pay any compensation.
6.6 The Buyer shall pay all amounts to the Seller without deduction, suspension, set-off or discount, in advance and ultimately upon acceptance of the order of the Buyer, to the bank account designated by the Seller in Euro’s, unless the parties agreed upon otherwise in writing.
6.7 The Buyer has the duty to immediately notify the Seller of inaccuracies in the provided or notified payment details.
6.8 The payment term mentioned in article 6.6 or otherwise agreed upon dates/terms of payment, is/are final and concern the last due dates. If the Buyer fails to pay the amounts in time, the Buyer will be legally in default by operation of law. As from the due date to the date on which the principal sum is paid in full, the Buyer shall owe – besides the costs mentioned in article 6.9 – statutory interest pursuant to Article 6:119 of the Dutch Civil Code – and in case the Buyer is a professional party, statutory commercial interest pursuant to Article 6:119a of the Dutch Civil Code – on the outstanding amount without a demand or notice of default being required.
6.9 All reasonable actual extrajudicial costs and judicial costs, internal as well as external, incurred by the Seller, in obtaining an out of court settlement, in collecting its claim, protecting its rights, and/or in the event that the Seller involved in any way in a dispute with or a procedure against the Buyer, regardless if it is as claimant or defendant, shall be borne by the Buyer, also when these costs exceed the liquidated amount. The Buyer will be obligated to pay to the Seller a minimum of at least 15% of the principal sum plus VAT, with a minimum of EUR 150, without a demand or notice of default being required, as compensation for the extra judicial costs incurred when obtaining an out-of-court settlement, collecting its claim or protecting its right. The Buyer shall also owe statutory (commercial) interest on the extrajudicial and judicial costs, from the date of default to the date on which the extrajudicial and judicial costs are paid in full.
6.10 The payments made by the Buyer will first be applied to pay all interest and costs payable and subsequently the due and payable invoices that have been outstanding for the longest period, even if the Buyer states that the payment relates to a later invoice.
6.11 Objections in relation to invoices for Products or Services do not suspend Buyer’s payment obligation.
6.12 Seller shall at all times be entitled to require the Buyer to give proper security for the performance of all its obligations under the Agreement in a manner as will be deemed sufficient by Seller or to demand that the Buyer pays the purchase price for the Performance in advance. Failing immediate provision of such security or advance payment, Seller will be entitled to suspend further execution of the Agreement until such time as the Buyer will have provided the required security or payment in advance.
Article 7. Retention of title
7.1 Notwithstanding the actual delivery, all delivered Products shall remain Seller’s property until such time, and the title to the Product will pass to the Buyer, after the Buyer has fully paid all amounts due to the Seller in connection with the Products delivered or to be delivered due to Seller, the Agreement(s), including the principal sum, any surcharges, taxes and expenses that may be due in accordance with the Agreement as well as any Services that may have been performed or are to be performed by virtue of such Agreement.
7.2 As long as the title of the Products has not passed to the Buyer, the Buyer is not entitled to pledge, lease or rent out any Product to third parties, to transfer their ownership or to deliver any Product to third parties or have third parties use them, or position them out of control. In the event of infringement of this article, the Seller has the right to recall the Products delivered by the Seller at the location where the Products are kept, and this without authorization from the Buyer or the judge and without prejudice to any other rights Seller has. At the same time, each claim from the Seller becomes immediately and fully due and payable.
7.3 The Buyer should do all that may reasonably be expected of the Buyer to protect the Seller's rights. The Buyer has an obligation to store the Products, delivered under retention of title, with care and as the recognizable and identifiable property of the Seller. For the duration of the retention of title, the Buyer is obliged to insure the Products against normal business risks, including but not limited to fire, water, explosion damage and theft, and the Buyer must be able to produce policies of these insurances for inspection, on the Seller's first request.
7.4 If and as long as Seller is the owner of the Products, the Buyer shall notify Seller without delay in the event that any part of the Products should be lost or damaged, or in the event that the Products should be seized and/or other claims are laid on (any part of) the Products. Furthermore, the Buyer shall inform Seller upon its first request where the Products in respect of which Seller has retained its title, are located.
7.5 Seller shall at all times be entitled to reclaim the Products delivered to Customer subject to retention of title in case the Buyer has not fulfilled its obligations or Seller expects that the Buyer will not fulfil its obligations. The Buyer hereby unconditionally and irrevocably gives authorizes the Seller or a third party assigned by the Seller to access all locations where the Seller’s properties may be/are kept, and to repossess these. Any costs resulting from this action are at the expense of the Buyer.
Article 8. Termination and suspension of the Agreement
8.1 The Seller shall be entitled to terminate the Agreement, in part or in full, or to suspend any of its obligations, with immediate effect and without notice of default being required, and notwithstanding the other rights Seller has (such as but not limited to performance and/or compensation) if: (i) the Buyer is granted a suspension of payments, provisionally or otherwise, or if the Buyer applies for a suspension of payments, (ii) the Buyer is granted u statutory debt adjustment, (iii) the Buyer is wound up or terminated for reasons other than reconstruction or the merger of companies, (iv) the Buyer becomes bankrupt or is liquidated, or an equivalent of the previous concepts occurs (pursuant to a foreign law system), (i) a composition of creditors is offered by the Buyer, (vi) any asset of the Buyer is attached, (vii) the Buyer fails to comply with an obligation arising from the Agreement or this Terms and Conditions, or does not fulfil it on time or not properly. If the Buyer does not comply with an obligation towards the Seller arising from one Agreement the Seller will also have the right to suspend all its obligations which arise from all (other) Agreements between the parties without any legal intervention and without prejudice to Seller's other legal rights in such a situation.
8.2 In the event of suspension or termination by the Seller, the Seller shall under no circumstances be obliged to reimburse any sums of money that have already been received or to pay any compensation for damages or costs that could arise from that suspension or termination in any way, save where the claim for damages is based on an attributable breach of contract or a tort of the Seller.
- If the events described in article 8.1, any claim of the Seller against the Buyer becomes immediately due and payable without Seller being held to any compensation or guarantee, and Seller shall be entitled to immediately take back the Products concerned. The Buyer shall take such measures as to enable Seller to exercise its rights.
- The Buyer can only terminate the Agreement in writing. The Buyer shall only be authorised to terminate the Agreement if Seller fails to comply with a fundamental obligation under the Agreement and Seller, after receipt of a written notice of default providing as many details as possible and setting a reasonable term in which the breach can be remedied, still attributably failed to meet its fundamental obligations arising from the Agreement.
8.5 In case the Agreement is terminated, the Products already delivered by the Seller and the payment obligation in relation to this delivery are not cancelled. Amounts invoiced by the Seller before termination, in connection with what the Seller has executed or delivered correctly and in compliance with his obligations in the Agreement, remain payable in full with due observance of the previous sentence and become immediately due and payable as soon as the Agreement is terminated.
Article 9. Guarantee
9.1 Unless it has been expressly agreed otherwise in the Agreement, the Seller guarantees to the Buyer, that, subject to the conditions set out below, on delivery and for a period of thirty (30) calendar days from the date of delivery, the Products are suitable for normal use and are of the quantity and meet the specifications parties agreed upon in writing, if the Products are used and maintained in accordance with the instructions.
9.2 The Seller shall have no guarantee obligations whatsoever towards the Buyer if the Buyer has not fulfilled its obligations towards the Seller (both financially and otherwise). If the Buyer carries out or asks to carry out repair or modifications on the Products, without prior approval from the Seller, the warranty commitment lapses immediately.
9.3 The guarantee does not cover and the Seller shall have no (guarantee) obligations whatsoever toward the Buyer, in/with regard to the following events and/or if the defects are, partly or entirely, caused by or the result form: (i) normal wear and tear, or with regards to Products that have exceeded the reasonable lifespan of the product (ii) minor deficiencies or deviations, which fall within the levels of tolerance as accepted in good commercial practice, (iii) incorrect, improper, negligence, injudicious or incompetent use, storage, maintenance etc. of the Products by the Buyer or a third party, (iv) the use of the Products by the Buyer or a third party for the purpose other than for which they are normally or specifically intended, (v) the alternation, modification, improper of insufficient care, abuse, negligence, lack of maintenance, repair or maintenance by the Buyer or a third party without the Seller's prior written consent, (vi) materials, instructions or design provided or stipulated by the Buyer, (vii) the act of the Buyer or a third party contrary to the Seller's instructions, indications and/or advice or any manuals, (iix) any fracture or discoloration due to the acidity of skin, (ix) circumstances over which the Seller does not have any control, including a force majeure event. The Buyer acknowledges that jewelry are no toys and must be kept away from young children and infants. The Seller can never be held responsible in case of any injuries caused by wrong usage.
9.4 In order to make a claim under a warranty, the Buyer shall notify the Seller of any defect affecting the Product within the time limits stipulated in Article 10 and in accordance with the other requirements of article 10.
9.5 The Buyer shall cooperate with the Seller to enable its inspection of such defects and to cure them. Moreover, the Buyer shall refrain from repairing or causing the repair or modification of any element of said Product unless otherwise agreed by the parties. In case of any warranty claim by the Buyer, the Products must be made available by the Buyer to the Seller for examination upon first request, freight prepaid by the Buyer.
9.6The Seller's guarantee obligations with respect to the Products are strictly limited to the terms of warranty as set forth in this article 9. The Buyer explicitly relinquishes all its (other) rights and claims it may have under the applicable law. In the event that the Seller deems a guarantee claim justified, it shall at its sole discretion, deliver a replacement, similar but no necessary identical, Product or components or make every effort to repair the Products free of charge or give a price reduction or send a credit invoice.
9.7 Replacement Products or components under warranty will be delivered Delivered Duty Paid (DDP) in accordance with the most recent Incoterms inforce at the time when the Agreement is concluded, warehouse of the Buyer in the Netherlands. Troubleshooting at the spot will be for the account and risk of the Buyer, including, but not limited to disassemble, assemble, etc. of the Product.
9.8 Repair or replacement of a Product or its components shall not entail the extension of the guarantee period.
Article 10. Complaints
10.1 The Buyer is obligated to inspect the Products as soon as the Products are placed at the Buyer's disposal and/or as the Services are performed. In addition the Buyer should examine whether the quality and/or quantity of the delivered Performance matches the Agreement and complies with the requirements agreed by parties. The Buyer must notify the Seller in writing (or by e-mail to firstname.lastname@example.org) of any complaints concerning the Performance, stating the precise nature and cause for the complaint, including photographs proving the defects for as far possible, a copy of the order form or the Agreement, the delivery date and (if known) the relevant invoice number and if applicable with attached a copy of the invoice. Buyers, not being Consumers, are obliged to use a return form from Seller intended for this purpose, in which the aforementioned information should be filled in and the aforementioned documents should be attached to. The Seller should be notified in writing of any visible defects in the Performance within the time limit of three (3) working days after delivery of the Performance. The Seller should be notified in writing of all other complaints or defects immediately, or in any case within the time limit of three (3) working days at the latest, after the date on which the shortcomings/defects become known or might reasonably have been expected to become known to the Buyer.
10.2 If the Buyer submits a complaint or notification of default, even within the time limits stipulated in article 10.1, this will not suspend any obligation of the Buyer, including its payment obligation.
10.3 Any failure by the Buyer to report a complaint or defect within the time limits specified in article 10.1, shall result in the loss of any claims of the Buyer in this respect.
10.4 The Buyer should allow the Seller the opportunity to examine the complaint or to have the complaint examined and shall therefore ensure that the relevant Product is in the possession of the Seller within fifteen (15) working days of delivery.
10.5 Notwithstanding statutory time limits, in any event, all claims of the Buyer will become time barred unless legal proceedings will have been instituted before the court of competent jurisdiction within twelve (12) months after the date of delivery/performance/execution, or the date that delivery/performance should have been made.
10.6 If it is established that a complaint cannot be substantiated by the Buyer or if the if the complaint falls outside the scope of the guarantee, the costs arising from the complaint and related thereto, including the costs for examination on the part of Seller, shall be fully borne by the Buyer, including administration costs, shipping costs and call-out charges. If it is established that a complaint cannot be substantiated or if the complaint falls outside the scope of the guarantee, Seller shall invoice the costs of Performance and the rectification of defects, that fall outside the scope of the guarantee in accordance with its standard rates.
10.7 Returns in relation to complaints, returns without the prior approval of the Seller and/or not accompanied or preceded by the data mentioned in of article 10.1, are not allowed. If the Buyer returns the Products anyway, contrary to this provision, or returns Products ungrounded, then the Products are kept at the disposal of the Buyer, at his expense and risk, insofar as the Seller does not refuse the returned Products. No acknowledgment of correctness of any warranty claim can be derived from this action. The costs of ungrounded returns are at the expense of the Buyer and the Product will remain at its risk.
Article 11. Liability
11.1 The total liability of Seller due to an attributable failure to comply with any of its obligations under an Agreement, or these Terms of Conditions, any agreement related thereto or resulting therefrom, based on a tort or due to any other reason or any ground, shall be limited, irrespective of cause, to the amount that the Seller receives from its insurer under its liability insurance in relation to the damage for which the Buyer has held the Seller liable.
11.2 If no insurance payments are made in relation to the damage in question, the liability of the Seller is limited to, to the guarantee settlement provided in article 9 (direct damages) and/or and for Services, the compensation of the direct damages or loss, capped at the amount payable by the Buyer for the relevant Service. The Buyer explicitly waives all other claims it may have.
11.3 The Seller is not liable for any indirect, special, consequential, criminal, incidental and/or immaterial damage including, but not limited to, operating, credit or image loss, loss of customers, reduced goodwill, etc.
11.4 The limitations of liability in the previous subsections of this article 11 shall not apply insofar as the damage in question is caused by an intentional act or gross negligence on the part of the management of Seller.
11.5 The Seller shall not be liable for damage or loss of any nature due to the fact that the Seller relied on incorrect and/or incomplete data, information or specifications provided by or on behalf of the Buyer.
11.6 Except where performance by the Seller is permanently impossible, the Seller shall only be liable as a result of an attributable failure to perform any obligation, when the Buyer gives the Seller immediate notice of default in writing, setting a reasonable term in which the breach can be remedied, and the Seller still attributably fails to meet its obligations after the aforesaid period. The notice of default must contain as comprehensive and detailed a description of the breach as possible and as complete as possible, in order to ensure that the Seller has the opportunity to respond adequately.
11.7 A condition for the existence of any right to compensation shall in all cases be that the Buyer notifies the Seller in writing of the loss or damage immediately after it occurs. Any claims for damages against the Seller shall expire automatically by the mere passage of 12 (twelve) months from the date on which the claim arose.
11.8 Without prejudice to any rights Consumer might have, and to any restrictions imposed on the limitations of liability stated above and thus to the extent permitted by law, Seller will not accept liability for:
- any interruption to the Website;
- any damage or loss resulting from a fraudulent intrusion by a third party, causing any change to the information made available on the Website;
- non-fulfilment of orders due to stock shortages.
Article 12. Force majeure
12.1 The Seller is nog obliged to comply with any obligation if he is unable to do so due to Force Majeure. Seller shall not be liable to the Buyer for any failure to perform its obligations, for as far as that failure is caused or relates to Force Majeure. In case of Force Majeure, the delivery and other obligations of Seller are suspended for the duration of the Force Majeure event. If this period lasts more than twenty (20) calendar days, Seller is entitled to terminate the Agreement without obligation to compensate the Buyer for any damages.
12.2 Force majeure means, in addition to the circumstances intended in the law and case-law, all external causes, whether they could have been foreseen or not, over which Seller has no control, but due to which Seller is not capable or makes it unreasonably burdensome for Seller to fulfil its obligations or any part thereof, temporarily or permanently, including but not limited to strikes at Seller’s or at third parties, floating ice, extreme weather conditions, terrorist attacks, flooding, legal restrictions, electricity failure, faults effecting the internet, computer network or telecommunication facilities, the circumstance where suppliers and/or Seller’s auxiliaries’ fail to fulfill their obligations dully, at all or on time, government measures, , import delays, export bans, uproar, war, mobilization, transport obstructions, faulty machines, import obstructions, fire etcetera.
12.4 Insofar as the Seller has already partially fulfilled its obligations arising from the Agreement, or shall be able to fulfil its obligations in part, at the time the force majeure event originates, the Seller shall be entitled to invoice for the fulfilled part or as the case may be, the part that will be fulfilled and the Buyer shall be obliged to pay this invoice as if it were a separate Agreement.
Article 13 Disputes and applicable law
13.1 These Terms and Conditions, all Agreements and all further agreements arising therefrom or related thereto shall be solely governed by and construed in accordance with Dutch law.
13.2 If the Buyer is domiciled in a Member State of the European Union, any and all disputes that may arise between the Seller and the Buyer, ensuing from or relating to any offer or proposal of the Seller, the Terms and Conditions, the Agreement and/or any agreement resulting therefrom or related thereto, shall be exclusively submitted to the competent court in Amsterdam, the Netherlands. Nonetheless, the Seller also has the right to submit such dispute to a court of the Member State where the Buyer is domiciled.
13.3 If the Buyer is not domiciled in a Member State of the European Union, any and all disputes that may arise between the Seller and the Buyer as described in article 13.2, shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce ('ICC') in accordance with the following: (i) the arbitral tribunal shall be composed of one (1) arbitrator; (ii) the place of arbitration shall be the Netherlands; (iii) the arbitral procedure shall be conducted in the English language and (iv) the arbitral tribunal shall decide in accordance with the rules of law.
13.4 Before starting a procedure as referred to above, the parties shall do their utmost to resolve the dispute in mutual consultation. If the parties do not reach an amicable settlement regarding the dispute within sixty (60) calendar days.
13.5 The provisions of this article 13 shall not prevent the Seller from requesting preliminary relief in summary proceedings or from taking precautionary measures if the party deems doing so necessary.
CONTRARY POVISIONS THAT APPLY ONLY TO AGREEMENTS WITH CONSUMERS
Article 14. Agreements with Consumers
14.1 In case the Buyer is a Consumer, the provisions of article 14.2 of these Terms And Conditions will apply in contrary to the in article 14.2 mentioned provisions of these Terms and Conditions. In case of discrepancies between the provisions set forth in article 1 up to article 13 and provisions set in article 14.2, the provisions laid down in article 14.2 shall prevail.
14.2 a. Contrary to the provision set forth in article 2.4, the Seller may only transfer an obligation ensuing from any Agreement and/or these Terms and Conditions to a third party with the prior consent of the Consumer.
- In contrary to the provision set forth in article 6.6, in the case of the sale of Products to Consumers, the Consumer shall be obliged under these Terms and conditions to prepayment of 50% of the purchase price of the Products and the other 50% will be paid at the moment of delivery, unless parties agreed otherwise. Parties can agree by Agreement on another way of payment and even a prepayment of 100% of the price. If (partial or full) prepayment is agreed upon, the Consumer cannot assert any right whatsoever concerning the implementation of the order of Products or Service(s) in question before the stipulated prepayment has taken place.
- In contrary to the provisions set forth in article 6.8 and 6.9 the following applies in case the Buyer is a Consumer. If the Consumer does not fulfil its payment obligation(s) in a timely manner, the Consumer after the late payment has been pointed out to them by the Seller and the Seller has granted the Consumer a period of term of (14) calendar days to fulfil its payment obligations, and the Consumer still fails to fulfill its payment obligations within this term of fourteen (14) calendar days, will owe the statutory interest rate on the amount that is still owed, and the Seller will be entitled to charge the extrajudicial collection costs incurred by it. These collection costs are: 15% of outstanding amounts up to EUR 2,500; 10% of the subsequent EUR 2,500 and 5% of the following EUR 5,000, with a minimum of EUR 40.
- Contrary to any provisions set forth in articles 6.11 and 10.2, the Consumer’s right to suspend any performance pursuant to Dutch law is not limited or excluded.
- For as far as the provisions set forth in article 8.1 grant Seller a more far-reaching power than he is entitled to according to the applicable law, such more far-reaching power shall not apply in case of an Agreement with a Consumer and therefore the Seller will not be able to invoke such more far-reaching power in the case of an Agreement with a Consumer.
- Contrary to the provision set forth in articled 8 up to including 13 of the These Terms and Conditions, Buyer's right to terminate the Agreement pursuant to Section 5, Title 5 of Book 6 of the Dutch Civil Code is not limited or excluded in case the Buyer is a Consumer.
- Contrary to the provisions set forth in article 8.4, the Consumer shall be able to terminate the Agreement in a corresponding way as it was concluded. The right of the Consumer to terminate the Agreement that has been concluded verbally, in writing or by electronic way, in a corresponding way, is not limited or excluded by one of the provisions set forth in article 1 up to article 13 of these Terms of Conditions.
- Contrary to the provisions set forth in articles 9 and 10, no legal prescription period or absolute time limit, during which the Consumer has to make any right effective, is shortened to a period of less than one (1) year.
- Contrary to the provisions set forth in articles 13.2 and 13.3, disputes cannot be resolved otherwise than by the court having jurisdiction under Dutch law, unless the Buyer is allowed a period of one (1) month after the date on which the Seller has invoked article 13.2 or 13.3 of these Terms and Conditions in writing against the Buyer, and the Buyer has during aforementioned period not opted in a written notice to the Seller for dispute resolution by the court having jurisdiction under Dutch law.
CONDITIONS THAT ONLY APPLY TO DISTANCE CONTRACTS
15.1 In case of a Distance Contract in addition to the provision set forth in article 1 up to and including article 14 of these Terms and Conditions the provisions set forth in article 16 up to and including 20 of these Terms and Conditions are equally applicable. In case of discrepancies between the first mentioned articles and the latter mentioned articles, the provisions laid down in the latter mentioned articles of these Terms and Conditions shall prevail.
Article 16. Distance Contract: right of withdrawal with respect to the delivery of products
16.1 The Consumer may terminate a Distance Contract that relates to the purchase of a product without giving reasons within a Withdrawal Period of fourteen (14) calendar days.
16.2 The Withdrawal Period referred to in article 16.1 commences on the calendar day after the one on which the Consumer, or a third party designated by the Consumer in advance who is not the carrier, received the product, or:
- if the Consumer placed a single order for several products: on the lendar day on which the Consumer or a third party designated by the Consumer receives the last product. Provided that Seller informed the Consumer in a clear manner prior to the order process, Seller may refuse an order for several products with different delivery times.
- if the delivery of a product consists of different consignments or parts: on the calendar day on which the Consumer or a third party designated by the Consumer receives the last consignment or the last part;
- in the case of contracts for the regular delivery of products for a certain period of time: on the calendar day on which the Consumer or a third party designated by the Consumer receives the first product.
16.3 The Consumer may terminate a Distance service Contract without giving reasons within a period of fourteen (14) calendar days. Seller may ask the Consumer for the reasons but may not oblige the Consumer to give the reasons.
16.4 The Withdrawal Period referred to in article 16.3 commences on the calendar day after the one on which the contract was concluded.
16.5 If Seller has not informed the Consumer about the Right of Withdrawal or has not provided the Standard Withdrawal Form, the Withdrawal Period will end twelve (12) months after the end of the original Withdrawal Period as established in accordance with the previous paragraphs of this article 16.
16.6 If Seller provides the information referred to in the preceding paragraph within twelve (12) months following the commencement date of the original Withdrawal Period, the Withdrawal Period will end fourteen (14) calendar days after the calendar day on which the Consumer received the information.
Article 17. Obligations of the Consumer during the Withdrawal Period
- During the Withdrawal Period, the Consumer must handle the product and packaging with care. The Consumer will only unpack or use the product to the extent necessary to determine the nature, characteristics and operation of the product. The basic principle in this regard is that the Consumer may only inspect and use the product in the way that he would be allowed to do in a physical shop.
- The Consumer will only be liable for a decrease in the value of the product that is the consequence of the product having been handled in a manner over and above the manner described in article 17.1.
- The Consumer will not be liable for a decrease in the value of the product if Seller did not provide the Consumer with all of the information required by law regarding the Right of Withdrawal prior to or on the conclusion of the Distance Contract.
Article 18. The Consumer’s exercise of the right of withdrawal and associated costs
- If the Consumer elects to exercise his Right of Withdrawal, he must, within the Withdrawal Period, use the Model Withdrawal Form or another unequivocal means of giving notice to Seller that he is exercising this right.
- The Consumer must return the product or hand the product over to Seller or to an authorised representative of Seller as soon as possible and in any case within fourteen (14) calendar day of the calendar day following the one on which the notice referred to in article 18.1 was given. The Consumer does not need to do this if Seller has offered to collect the product. The Consumer will in any case have complied with the term for returning the product if he returns the product prior to the end of the Withdrawal Period.
- The Consumer must return the product and all accessories delivered in the original state and packaging if reasonably possible and in accordance with Seller’s reasonable and clear instructions. The risk and burden of proof with respect to the proper exercise of the Right of Withdrawal within the applicable period of time lies with the Consumer.
- The Consumer will bear the direct costs of returning the product.
- If the Consumer cancels after having expressly asked for the performance of the service to commence during the Withdrawal Period, the Consumer will owe Seller an amount that is proportional to the part of the contract already performed by Seller at the time of the cancellation, compared to full performance of the contract.
- The Consumer will not bear costs for the performance of services if:
- Seller did not provide the Consumer with the information required by law regarding the Right of Withdrawal, the reimbursement of costs in the event of withdrawal or the Model Withdrawal Form; or
- the Consumer did not expressly ask for the service to commence during the Withdrawal Period.
Article 19. Obligations of Seller in the event of withdrawal
- If Seller makes it possible for the Consumer to give notice of withdrawal by electronic means, Seller will send confirmation of receipt without delay after receiving this notice.
- Seller may defer repayment until it has received the Product.
- To effect repayment, Seller will use the same method of payment that the Consumer used, unless the Consumer agrees to a different method. The repayment will take place at no cost to the Consumer. If the Consumer opted for a delivery method that was more expensive than the most inexpensive standard delivery method, Seller will not be required to repay the additional costs of the more expensive method.
Article 20. Exclusion of the Right of Withdrawal
- Seller has excluded the applicability of the Right of Withdrawal for the following products and services, which means that the Consumer does not have a Right of Withdrawal in respect of the following,:
- Service contracts, after performing the service in full, but only if:
- performance commenced with the express prior agreement of the Consumer; and
- the Consumer has stated that he will lose his Right of Withdrawal as soon as Seller has performed the contract in full.
- products manufactured in accordance with the specifications of the Consumer that are not prefabricated and that are manufactured on the basis of an individual choice or decision of the Consumer, or that are clearly personalised or intended for a specific person;
- the contract for the provision of services in respect of the carriage/transport of Products;
- sealed Products which are not suitable for return do to health protection of hygiene reasons and were unsealed after delivery;
- Products which are, after delivery, according to their nature, inseparably mixed with other items;
- the supply of Product or Services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period; and/or
- contracts where the Consumer has specifically requested a visit from the Seller for the purpose of carrying out urgent repairs or maintenance, with the exception of Services provided by the Seller in addition to those specifically requested by the Consumer or Products other than replacement parts necessarily used in carrying out the maintenance or in making the repairs.
APPENDIX I: MODEL WITHDRAWAL FORM
Model Withdrawal Form
Only complete and return this form if you wish to withdraw from the contract.
Castricummer werf 102
I / We* hereby give notice that I / we* withdraw from my / our contract of sale of the following products / for the provision of the following service *,
- Ordered on (*)/received on (*),
- Name of consumer(s),
- Address of consumer(s),
- Signature of consumer(s) (only if this form is notified on paper),
(*) Delete as appropriate.