Agreement: All Agreements between the Parties concerning the sale/purchase and delivery of Products by Company to the Customer and/or the provision of Services by Company to the Customer;
Company: Plendix, a private company with limited liability (‘besloten vennootschap met beperkte aansprakelijkheid’) incorporated under the laws of The Netherlands and its principal place of business in (8024 AA) Zwolle, Ceintuurbaan 18, being the user of the Terms and Conditions;
Consumer: A Customer being a natural person acting for purposes outside his business or professional activities;
Customer: The natural and/or legal person or persons to whom Company makes an Offer to deliver Products and/or provide Services and/or with whom Company concludes an Agreement;
Offer: Every offer by Company to conclude an Agreement;
Party/Parties: Company and the Customer jointly or each of them individually;
Product(s): The product(s) to be delivered by Company based on the Agreement to or for the benefit of the Customer, being items of property and/ or property rights;
Services: All (additional) services and/or work, technical or otherwise, of any nature what-soever, performed by Company, in the broadest sense, as presented on the Website;
Terms and Conditions: These General Terms and Conditions of Sale of Company;
In Writing/Written: By letter, fax, electronic message or bailiff’s notification.
These Terms and Conditions are applicable to all Offers and Agreements, as well as to any agreements arising therefrom or based thereon.
If the Terms and Conditions have applied to any Agreement, they will automatically apply to any future agreement concluded between the Parties, without any separate agreement to this effect between the Parties concerned being required, unless the Parties have expressly agreed otherwise in Writing with respect to the relevant agreement.
The applicability to any Agreement of any general or specific terms and conditions applied by the Customer is expressly rejected by Company, unless and after Company has expressly declared in Writing that the relevant terms and conditions apply to an Agreement. Under no circumstances does acceptance in this manner of the applicability of the Customer’s general terms and conditions to an Agreement result in the tacit applicability of these terms and conditions to any future Agreements.
In case of invalidity or annulment by the Customer of one or more provisions of the Terms and Conditions, the remaining provisions of the Terms and Conditions will continue to apply in full to the Agreement. The Parties will consult each other on replacing the invalid or voided provision of the Terms and Conditions by a provision which is valid or not voidable and which approaches the content and purport of the invalid or voided provision as much as possible.
In so far as an Agreement deviates from one or more provisions of the Terms and Conditions, the provisions of the Agreement will prevail. The remaining provisions of the Terms and Conditions will in that case continue to apply to the Agreement.
If any translations have been made of these Terms and Conditions, the version in the Dutch language will prevail over the version(s) in any other language.
Unless expressly stated otherwise, an Offer is without obligation and is valid during the term stated in the Offer. An Offer expires when it is no longer visible on the Website. An Offer can be withdrawn by Company at any time.
An Offer accepted by the Customer within the term of validity may be withdrawn by Company within seven (7) working days of the date of receipt of the acceptance by Company, without this resulting in any obligation on the part of Company to compensate the Customer for any loss incurred by the latter as a result. In case the Customer has provided payment to Company in relation to such Offer, Company shall repay such payment.
A price list or other overview containing prices in a general sense provided by Company to the Customer cannot be regarded as an Offer. Prices on such a price list can be amended by Company.
4. Formation of agreements
Agreements are concluded online. With due observance of the other provisions contained in the Terms and Conditions, an Agreement will only be effected:
(a) by acceptance of the Offer by the Customer;
(b) by the actual performance by Company of an assignment given by the Customer.
The Agreement replaces all previous proposals, correspondence, arrangements and other communication between the Parties that took place before concluding the Agreement, however much these may differ from or be in conflict with the Agreement.
An Agreement can never be regarded as a continuing performance contract (such as, but not limited to, a distribution agreement), unless explicitly stipulated in the Agreement. After Company has sold and/or delivered Products and/or Services to the Customer, it will never be obliged to conclude subsequent Agreements with the Customer.
The Customer can cancel an Agreement at no cost, such as but not limited to shipping costs, under the condition that the Product has not yet been shipped or the cancelation is done within the first six hours after its conclusion.
5. Prices and rates
Prices stated in an Offer or Agreement are only related to the Product itself and are exclusive of for example packaging and transport costs and other costs of shipping, import documents, import and export duties or taxes, clearance costs, insurance including transport insurance, travel time, travel and subsistence expenses and are exclusive of turnover tax and/or any other government-imposed levies, of any nature whatsoever.
Prices stated in an Offer or Agreement are in local currency. The local currency shall be paid by the Customer. In case no currency is stated, prices are in euro’s.
The Customer acknowledges and hereby agrees that taxes or levies may be imposed related to the transport and import or export of the Products.
Other costs than the price of the Product that apply as determined in article 5.1 and 5.3 shall be at the risk and expense of the Customer and shall be paid by the Customer.
If the Customer concludes an Agreement with Company without explicit agreement on a price for this Agreement, it will, irrespective of any Offers made or prices charged earlier, be carried out at the price applicable at the time of the performance of the Agreement.
If, however, the increased price which Company wishes to charge as referred to in Article 5.3 has risen by more than fifteen percent (15%) compared to the original price, the Customer will be entitled to cancel the Agreement in so far as it concerns future obligations on the part of Company, within seven (7) days of the notification of the price change, with the proviso that under no circumstances will Company be obliged in that case to compensate the Customer for any loss incurred as a result.
Payment shall be made at the conclusion of the Agreement and before delivery of the Products.
6. Delivery time
Company depends on third Parties for the delivery of the Products. The delivery time stated by Company in the framework of an Agreement is always an indication and may therefore never be considered a strict deadline, unless explicitly agreed otherwise in Writing between the Parties. Under no circumstances does exceeding an agreed delivery time give entitlement to compensation.
Company has the intention to deliver the Products within ten (10) days and no later than within fifty (50) days.
The delivery time stated by Company commences as soon as agreement has been reached on all details, including technical details, all necessary information and suchlike is in possession of Company and all conditions necessary for the performance of the Agreement have been complied with.
When determining the delivery time Company assumes that it will be able to perform the assignment in the circumstances existing at the time of concluding the Agreement.
In the event of different circumstances to those known to Company at the time of concluding the Agreement, Company may extend the delivery time by the amount of time required to perform the Agreement in the changed circumstances. If, as a result of the above, any work cannot be fitted into Company’s schedule, it will be carried out or completed as soon as Company ‘s schedule permits.
In case of a suspension of obligations by Company on account of a shortcoming by the Customer, the delivery time will be extended by the duration of the suspension. If, as a result of the above, any work cannot be fitted into Company’s schedule, it will be carried out or completed as soon as Company’s schedule permits.
If an agreed delivery period for the Products, or a delivery period that has been extended based on this articles 6 of these Terms and Conditions, has been exceeded, Company will only be in default if it has received a Written notice of default from the Customer giving it one (1) month to deliver and still fails to comply within this period of time. In the event of termination, the Customer will not be entitled to compensation unless such exceeding of this period of time is the result of intent or gross negligence on the part of the management of Company and/or its managing employees.
7. Mode of delivery
The risk of the Products to be delivered to the Customer will pass to it at the moment the Products are offered at the address as specified by the Customer. All Products will at all times be transported at the risk of the Customer. Unless the Customer requests of Company in good time that the Products be insured during transport at the expense of the Customer (and/or stipulated otherwise in the Agreement), the Products will be transported uninsured by or on behalf of Company.
The Customer must notify Company in Writing within five (5) working days if any Products are missing on delivery. If a notification is given after the expiry of this term, the missing Products will not be credited to the Customer, nor will the Products be delivered free of charge to the Customer at a later date. This article 7.2 does not apply to any partial delivery, but only when Products are missing at a delivery.
Company has fulfilled its obligation to deliver by offering the Products to the Customer on the agreed date at the address specified by the Customer. When the actual deliverer determines that the Products are offered to the Customer, the Products shall be considered as offered to the Customer.
An offer for delivery by Company of the Products ordered to the Customer will be considered equivalent to the delivery of these Products.
8. Acceptance and guarantee
The Products shall conform to the Agreement.
In any case after Company has performed its obligations under the Agreement, the Customer will, within a reasonable period of time (being no longer than 8 days after the delivery), subject the Products delivered and Services provided to an acceptance test. If the Customer fails to notify Company in Writing of any defects within the aforementioned reasonable period of time after the delivery, the Products delivered and Services provided will be deemed to have been accepted by the Customer and to comply with the requirements and performance set out in the Agreement.
Other defects to the Products delivered and/or Services provided not visible on delivery must be reported substantiated in Writing to Company within eight (8) days of their discovery, or after they reasonably could have been discovered, failing which the Products delivered and/or Services provided will be deemed to have been accepted by the Customer and to comply with the requirements and performance set out in the Agreement.
If the Parties fail to reach agreement on the question whether or not there is a defect, an independent expert will be engaged. The expert will be appointed by Company in consultation with the Customer. Unless agreed otherwise, the relevant costs will be borne by the party that, for the most part, fails in its claim.
Complaints of any nature whatsoever relating to the performance of the Agreement by Company do not suspend the Customer’s payment obligation and may only be communicated to Company in Writing.
No obligation whatsoever rests on Company concerning a claim submitted if the Customer has not fulfilled all its obligations towards Company (both financial and otherwise) in time and in full.
A claim concerning a Product delivered and/or Service provided by Company cannot affect Products delivered and/or Services provided earlier or yet to be delivered and/or provided, even if these have been or will be delivered and/or provided in the performance of the same Agreement.
Unless agreed otherwise in Writing, a guarantee will not be provided to the Customer for Products delivered by Company, except for the guarantees applicable by law.
9. Expiry periods
Legal actions and other powers of the Customer, for whatever reason, with respect to Company in connection with the Products delivered and/or Services provided will lapse after twelve (12) months following the date on which the Customer became aware or could reasonably be aware of the existence of these rights and powers, but has not lodged a Written claim with Company on this basis before the expiry of this period.
If within the period stated in Article 11.1 a Written claim has been lodged by the Customer with Company in connection with Products delivered and/or Services provided by Company, any legal action of the Customer in this respect will also lapse if no lawsuit has been brought against Company before the competent court pursuant to Article 18 of the Terms and Conditions within a term of four (4) months after receiving the relevant Written claim.
If the Customer fails to fulfil all or part of one or more of its obligations under the Agreement, the Customer will be deemed to be in default by operation of law and Company will have the right to terminate all or part of the Agreement unilaterally by means of a Written notification to the Customer, without any notice of default or judicial intervention, and/or to suspend its obligations under the Agreement, without Company being obliged to pay any compensation and without prejudice to any rights accruing to Company, including the right to full compensation. All claims which Company may have or may acquire against the Customer in these cases will be due and payable immediately and in full.
In the event of insolvency, suspension of payments, cessation of work, liquidation or takeover or any comparable situation of the Customer, or if the Customer ceases its business operations or if an attachment has been levied on a substantial part of the Customer’s assets or if the Customer is otherwise no longer deemed capable of fulfilling the obligations arising from the Agreement, the Customer will be in default by operation of law and Company will have the right to terminate all or part the Agreement unilaterally by means of a Written notification, without any notice of default or judicial intervention being required and without Company being obliged to pay any compensation and without prejudice to its other rights, including Company’s right to full compensation.
11. Right of Withdrawal
In the event that the Counterparty qualifies as a Consumer and the Contract qualifies as a distance contract (overeenkomst op afstand) as mentioned in Book 6 article 230g sub (e) of the Dutch Civil Code, the Consumer has the right to withdraw the Agreement within 14 days without stating reason (the ‘Right of Withdrawal’).
The withdrawal period mentioned in article 11.1 shall commence the day after the Consumer, or a third party designated by the Consumer who is not the transporter, has received the Products, or:
(a) in the case that the Consumer has ordered several Products in one order delivered separately: the day on which the Consumer, or a third party designated by the Consumer, has received the last Product;
(b) in the case the delivery of the Products consists of different shipments, units or parts: the day on which the Consumer, or a third party designated by the Consumer, has received the last shipment, unit or part;
(c) in case of Agreements for regular delivery of Products during a particular period of time: the day on which the Consumer, or a third party designated by the Consumer, has received the first Product.
12. Obligations Consumer
During the withdrawal period as determined in article 11 the Consumer shall handle the Products and the packaging of the Products with due care. The Consumer shall only unpack or use the Products to the extent that it is necessary to determine the nature, characteristics and functioning of the Products. The guiding principle in this matter is that the Consumer shall only handle and inspect the Products as he would have been allowed to if he would have concluded the Agreement in a store.
The Consumer is only liable for any diminished value of the Products resulting from the handling that exceeds the limitations of article 12.1.
13. Exercising the Right of Withdrawal
If the Consumer exercises his Right to Withdrawal, then:
(a) within the withdrawal period the Consumer shall inform Company of such exercise by using the model withdrawal form as can be found in Annex I and on the Website;
(b) the Consumer shall return the Products, as soon as possible, but in any event no later than fourteen (14) days from the day on which Bestchristmasdecors is informed about your decision to exercise your Right of Withdrawal;
(c) the Consumer shall return the Products including all appurtenances, if reasonably possible in original condition and packaging.
The risk and burden of proof of the correct and timely exercise of the Right of Withdrawal rests with the Consumer.
The Consumer shall bear the costs of returning the Products.
The Consumer will not bear the costs for the partial or complete delivery of digital content which is not delivered on a portable carrier, if:
(a) the Consumer has not, prior to delivery, expressly consented with starting his performance in accordance with the Agreement before the end of the withdrawal period;
(b) there is no statement of the Consumer waiving his right; or
(c) Company omits to supply said confirmation.
14. Exclusion of the Right of Withdrawal
The Right of Withdrawal shall not apply if:
(a) the Agreement states that the price of the Products is subject to fluctuations in the financial markets of which Company has no control over and the fluctuations occur during the withdrawal period;
(b) the Products are custom tailored to specifications provided by the Consumer, which are not prefabricated but fabricated based on the individual choice or decision of the Consumer, or are clearly intended for a specific person;
(c) the delivery of Products which, after delivery, are irrevocably entwined with other Products.
15. Liability and insurance
Company is liable for loss suffered by the Customer due to any failure attributable to Company in the performance of the Agreement. Only the loss against which Company is insured or should reasonably have been insured in view of the nature of Company’s business and the market in which it operates will qualify for compensation and only up to the amount paid out by the insurer in the matter concerned.
The following do not qualify for compensation:
(a) financial loss, such as, but not limited to, trading loss, consequential loss, loss due to delay and loss of profits;
(b) damage to property in the care, custody or control of, but not owned by the insured (opzichtschade), including damage caused by or during the performance of work to items of property on which work is performed or which are located near the place where work is performed (the Customer must take out proper insurance in this respect, if required);
(c) loss arising through the actions or omissions of the Customer or third parties in breach of the instructions given by Company or in contravention of the Agreement and the Terms and Conditions;
(d) loss caused directly by incorrect, incomplete and/or faulty information provided to Company by or on behalf of the Customer;
(e) loss occurred due to improper use of the Products.
(a) at the time the agreement is entered into Company is unable to take out insurance or to take out insurance on reasonable terms as referred to in paragraph 1 or to extend the insurance afterwards on reasonable terms;
(b) the insurer does not pay out for the relevant loss;
(c) the relevant loss is not covered by the insurance,
the compensation for loss will be limited to the amount (excluding VAT) agreed by Company with the Customer for the agreement concerned.
Company is not liable for any damage caused by faulty processing to materials delivered by or on behalf of the Customer. At the request of the Customer Company will perform the processing once again, with new material delivered by and at the expense of the Customer.
The Customer indemnifies Company against all third-party claims due to loss caused by or in connection with Services provided by and/ or Products delivered by Company, in so far as Company is not liable towards the Customer for such loss.
16. Force majeure
Force majeure means a shortcoming in the performance of an Agreement which cannot be attributed to Company.
Force majeure as referred to in Article 14.1 includes in any case – therefore not exclusively – shortcomings as a result of: (a) failures of and/or serious disruptions to the production process at suppliers, including utility companies, (b) failure by third parties to deliver the necessary materials, (c) wilful misconduct or gross negligence of auxiliary persons, (d) strikes, (e) excessive sickness absence of personnel, (f) fire, (g) special weather conditions (such as floods), (h) government measures (both national and at international level), including import and export prohibitions and impediments, (i) war, mobilization, disturbances, riots, state of siege, (j) sabotage, (k) traffic congestion, (l) machinery breakdown and/or (m) delay in transport.
In the case of force majeure, Company has the choice of either suspending the performance of the Agreement until the situation of force majeure has ceased to exist or, whether or not having originally chosen to suspend performance, to terminate all or part of the Agreement. In either case the Customer will not be entitled to any compensation. If the period in which Company is unable to comply with its obligations for reasons of force majeure is longer than thirty (30) days, the Customer will also be entitled to terminate part of the Agreement (with respect to the future), with the proviso that Company, in accordance with Article 16.4, will be entitled to send an invoice for the work already performed. In case of partial termination there will be no obligation to compensate for loss, if any.
If Company has met its obligations in part at the time the force majeure occurs or can only partially comply with its obligations, it will be entitled to invoice that part separately. The Customer will be required to pay this invoice as if it were a separate Agreement.
Both Parties are bound not to disclose any confidential information they have acquired from each other or from some other source within the context of their Agreement. Information is to be regarded as confidential if a party has stated that it is confidential or if it is obvious from the nature of the information that it is confidential.
If Company is obliged, by virtue of a statutory provision or a judicial ruling, to disclose confidential information to third parties designated by the law or a competent court and Company is unable to claim a right of non-disclosure recognized or granted by the competent court in such a case, then Company will not be obliged to pay any damages or compensation and the Customer will not be entitled to terminate the Agreement.
18. Intellectual property rights
All intellectual and industrial property rights, including but not limited to copyrights and database rights, to any Products and/or results of Services including but not limited to copy, models, drawings, designs, documentation, photographic recordings, films, information carriers, equipment and software (in object code and source code), information and databases, moulds and dies, which are the subject of and/or arise from and/or are used in the performance of the obligations under the Agreement between Company and the Customer are vested in Company. If the aforementioned rights are not vested in Company, the Customer will be obliged to grant its cooperation to the transfer of the relevant right to Company on demand.
19. Applicable law and competent court
All Agreements concluded by Company will be exclusively governed by Dutch law to the exclusion of the Vienna Sales Convention.
When the Customer qualifies as a Consumer, any disputes between the Parties shall be exclusively submitted to the competent court in The Netherlands.
When the Customer does not qualify as a Consumer, any disputes between the Parties shall be exclusively submitted to the Rechtbank Overijssel, locatie Zwolle, The Netherlands.