FOR DELIVERY TO CONSUMERS
Of:
Mosaic
Trader/The Craft Kit
Zwarteweg 97
1431 VK Aalsmeer
hereinafter
to be referred to as: user
Article
1 Definitions
1. In
the present general terms and conditions, the following terms are
used in the sense given below, unless explicitly indicated otherwise.
User:
the user of the general terms and conditions.
Buyer:
the user's opposite party, acting in the course of a business or in
the course of a profession.
Agreement:
the agreement between the user and buyer.
Article
2 General
1. The
stipulations of the present terms and conditions shall apply to each
and every offer and agreement between user and a buyer, to which user
has declared the present terms and conditions applicable, insofar as
parties have not explicitly deviated from the present terms and
conditions in writing.
2. The
present terms and conditions shall also apply to all agreements with
user, the execution of which calls for the services of third parties.
3. The
buyer's general terms and conditions shall only apply if parties have
explicitly agreed in writing that said general terms and conditions
shall apply to the present agreement with the exclusion of the
present general terms and conditions. In that event possibly still
conflicting stipulations in the user's and buyer's general terms and
conditions shall only apply between parties, if and in so far that
they are a part of user's general terms and conditions.
4. If
one or more stipulations in the present general terms and conditions
should be null and void or declared null and void, then the other
stipulations of the present general terms and conditions shall remain
fully applicable. The case ensuing, user and buyer shall enter into
negotiations to agree upon new stipulations replacing the null and
void conditions, or, as the case may be, the conditions declared null
and void, whereby the purpose and the meaning of the original
conditions shall be heeded as far as possible.
Article
3 Offers and Tenders
1. All
offers shall be free of obligation unless the offer contains an
acceptance term.
2. The
offers made by user shall be free of obligation; they shall be valid
for a period of thirty days, unless indicated otherwise. User shall
only be bound by the offers if the acceptance thereof is confirmed in
writing by the buyer within thirty days.
3. Terms
of delivery given in user's offers shall only be tentative and
exceeding these terms of delivery shall not entitle buyer to
dissolution or damages, unless explicitly agreed upon otherwise.
4. The
prices given in above-mentioned offers and tenders shall be exclusive
of VAT and other government levies, as well as of shipment costs and
possible packaging and administration costs, unless explicitly stated
otherwise.
5. If
the acceptance deviates (on secondary items) from the offer given,
user shall not be bound by it. The agreement shall in such event not
be concluded in accordance with said deviating acceptance, unless
user indicates otherwise.
6. A
compound quotation shall not oblige user to execute part of the
assignment against a corresponding part of the given quotation.
7. Offers
and tenders shall not apply automatically to repeat orders.
Article
4 Execution of the Agreement
1. User
shall execute the agreement to the best of his knowledge and ability.
2. If
and in so far required for the proper execution of the agreement,
user shall have the right to have certain work done by third parties.
3. The
buyer shall see to it that user shall be provided in due time with
all data which user has said to be necessary or which the buyer must
in all reasonableness understand to be necessary to the execution of
the agreement. If user has not been provided in due time with the
data necessary to the execution of the agreement, user shall have the
right to suspend the execution of the agreement and / or to charge
the buyer for the additional costs resulting from the delay at the
generally accepted rates.
4. User
shall not be liable for damage of whatever nature caused by the fact
that user worked on the basis of incorrect and / or incomplete data
provided by the buyer, unless user should have been aware of said
incorrectness or incompleteness.
5. If
parties have agreed that the agreement will be executed in stages,
user can suspend the execution of the parts belonging to a following
stage until the buyer has approved in writing the results of the
stage prior to it.
6. If
user or third parties engaged by user within the scope of the
assignment do work at buyer's site or at a site designated by buyer,
buyer shall provide the employees having to work there free of charge
with all facilities desired in all reasonableness by said employees.
7. Buyer
shall safeguard user against possible claims filed by third parties
who may sustain damage attributable to buyer in connection with the
execution of the agreement.
Article
5 Delivery
1. Delivery
shall be made ex works/store/warehouse of user.
2. If
delivery is made on the basis of the "Incoterms", the
"Incoterms" valid at the moment the agreement is concluded,
shall apply.
3. Buyer
shall be held to take delivery of the goods the moment that user
delivers them to him or has them delivered, or the moment at which
the goods are put at buyer's disposal under the agreement.
4. If
the buyer refuses to take delivery or fails to give the information
or instructions necessary to the delivery, user shall be entitled to
store the goods at buyer's risk and expense.
5. If
the goods are serviced, user shall be entitled to charge possible
service charges. Said service charges shall then be invoiced
separately.
6. If,
in the framework of the execution of the agreement, user requires
data to be given by the buyer, the term of delivery shall commence
after the buyer has provided user with said data
7. If
user has given a term of delivery, it shall only be indicative. A
given term of delivery shall therefore never constitute a term to be
observed on penalty of forfeiture of rights. If a term is exceeded,
the buyer must give user notice of default in writing.
8. User
shall be entitled to deliver the goods in parts, unless such is
deviated from in writing in the agreement or if the partial delivery
does not represent an independent value. User shall be entitled to
invoice the thus delivered goods separately.
9. If
execution of the agreement in stages has been agreed upon, user can
suspend the execution of the parts belonging to a following stage
until the buyer has approved in writing the results of the stage
prior to it.
Article
6 Samples and Models
1. If
a sample or model has been given to buyer, then the assumption is
that such has been given by way of indication only, unless parties
agree explicitly that the product to be delivered shall correspond
with it.
2. In
the event of purchase of immovable property, the surface area or
other measurements and indications given shall also be assumed to be
merely indicative without any obligation to have the product to be
delivered correspond with it.
Article
7 Inspection & Complaints
1. Buyer
shall be held to examine the delivered goods (to have the delivered
goods inspected) the moment of delivery (handing over), but in any
case in as short a period of time as possible. In this respect, buyer
must examine whether the quality and the quantity of the delivered
goods comply with what was agreed upon, or at least whether they meet
the requirements applying to said goods in normal (business)
transactions.
2. Possible
visible shortcomings must be communicated in writing to user within
three days following delivery. Non-visible shortcomings must be
reported within three weeks following their detection but no later
than 12 months following delivery.
3. If
in accordance with the previous paragraph, buyer files his complaint
in due time, he shall still be held to take delivery and effect
payment of the goods purchased. If buyer wishes to return defect
goods, he shall do so following prior consent in writing from user.
Article
8 Remuneration, Price and Costs
1. If
user and buyer have agreed upon an administered price, user shall
nevertheless be entitled to increase said price.
2. User
shall be allowed among others, to charge on price increases if
changes in price have
occurred between the moment the offer was
made and the moment of execution of the agreement with respect to,
e.g., exchange rates, salaries and wages, raw material, semi-finished
products or packaging material.
3. The
prices given by user shall be exclusive of VAT and other government
levies, as well as of the other expenses to be possibly made within
the scope of the agreement, including shipment and administration
costs, unless stated otherwise.
Article
9 Changes to the agreement
1. If
it is shown during the execution of the agreement that the work to be
done needs to be changed and / or supplemented in order to ensure its
proper execution, parties shall adapt the agreement accordingly in
due time and in mutual consultations.
2. If
parties agree that the agreement needs to be changed and / or
supplemented, this decision may influence the time of completion of
the execution. User shall inform the buyer thereof as soon as
possible.
3. Should
the change and / or supplement to the agreement have any financial
and / or qualitative consequences, user shall inform buyer thereof in
advance.
4. If
a fixed rate has been agreed upon then user shall indicate the degree
to which the change or supplement to the agreement will result in an
increase of said fixed rate.
5. Contrary
to the conditions governing this matter, user shall not be able to
charge additional costs if the change or supplement is the result of
circumstances attributable to user.
Article
10 Payment
1. Payment in full must be made processing, pick-up or shipment
[unless otherwise mutually agreed] in a way to be indicated by user
and in the currency in which the goods were invoiced. Contestation of
the amount of the invoices shall not suspend the fulfilment of the
payment obligation.
2. If buyer fails to fulfil his payment obligation within the term
of 7 days, then buyer shall be in default by operation of law. In that
event, buyer shall owe an interest of 1% per month, unless the statutory
interest rate is higher, in which case the statutory interest rate shall
apply. The interest on the amount due and payable shall be calculated as
from the day the buyer is in default until the moment he has paid the amount
in full.
3. user's
claims against buyer shall become due on demand in the event that
buyer is wound up, attached, declared bankrupt, or if a suspension of
payment is granted.
4. User
shall be entitled to have the payments made by the buyer go first of
all to reduce the costs, subsequently to reduce the interest still
due and finally to reduce the principal sum and the current interest.
User shall have the right, without this leading user to be in
default, to refuse an offer for payment, if the buyer designates a
different sequence of attribution. User shall be entitled to refuse
full payment of the principal sum, if said payment does not include
the interest still due, the current interest and the costs.
5. User
has the possibility to charge a credit limitation surcharge of 2%.
This surcharge will not be charged if payment is made within 7 days
from the date of invoice.
Article
11 Retention of Title
1. All
goods delivered by user, possibly also including designs, sketches,
drawings, films, software, (electronic) files, etc., shall remain
user's property until buyer has fulfilled all of his obligations
under all agreements concluded with user.
2. Buyer
shall not be authorised to pledge or encumber in any way the goods
falling under the retention of title.
3. If
third parties seize goods delivered subject to retention of title or
wish to establish or assert a right to them, buyer shall be held to
inform user thereof as soon as can reasonably expected.
4. The
buyer shall undertake to insure the goods delivered subject to
retention of title and to keep them insured against damage caused by
fire, explosion and water as well as against theft and make this
insurance policy available for inspection on first demand.
5. Goods
delivered by user falling under the retention of title by virtue of
the stipulations under 1. of the present article, may only be sold on
within the framework of normal business activities and must never be
used as instrument of payment.
6. In
the event that user wishes to exercise his ownership rights mentioned
in the present article, buyer shall give user or third parties to be
appointed by user, now for then, unconditional and irrevocable
permission to access all sites and locations where user's property
might be found and to take these goods back.
Article
12 Guarantee
1. User
shall guarantee that the goods to be delivered shall meet the usual
requirements and standards that can be set for and made upon them and
that they shall be free of any defect whatsoever.
2. The
guarantee mentioned under 1 shall equally apply if the goods to be
delivered are destined for use abroad and if the buyer explicitly
informed user of this use in writing the moment the agreement was
entered into.
3. The
guarantee mentioned under 1 shall be valid for a period of 3 months
following delivery.
4. If
the good to be delivered does not comply with said guarantee, user
shall, at his discretion, replace or see to the repair of the good,
within a reasonable period of time following receipt thereof, or, if
the good cannot be returned in reason, following notification of the
defect by the buyer. In the event the good is replaced, the buyer
shall already now undertake to return the replaced good to user and
to transfer ownership to user.
5. The
guarantee mentioned for this purpose shall not apply when the defect
originated as the result of injudicious or improper use or when the
buyer or third parties have introduced changes or tried to introduce
changes to the good without user's consent in writing or if they have
used it for purposes for which the good was not intended.
6. If
the guarantee given by user concerns a good produced by a third
party, the guarantee shall be limited to the guarantee given by the
producer of the good.
Article
13 Collection Charges
1. If
the buyer fails to fulfil his obligations (in due time) or defaults
on them, then all reasonable costs incurred to have all extrajudicial
costs and debts paid shall be borne by the buyer. If the buyer
remains in default of payment within the set time period, he forfeits
a immediately payable fine of 15% on the amount
due at that moment. This with a minimum of € 50.
2. If
user demonstrates that he has incurred higher expenses, which were
necessary in reason, said expenses shall also qualify for
reimbursement.
3. The
reasonable judicial and execution costs possibly incurred shall
equally be borne by buyer.
4.
Buyer shall owe interest over the made collection charges.
Article
14 Suspension and Dissolution
1. User
shall be authorised to suspend the fulfilment of the obligations
under the agreement or to dissolve the agreement, in the event that:
- buyer
does not fulfil or does not fully fulfil his obligations resulting
from the agreement
- after
the agreement has been concluded, user learns of circumstances giving
good ground to fear that the buyer will not fulfil his obligations.
If good ground exists to fear that the buyer will only partially or
improperly fulfil his obligations, suspension shall only be allowed
in so far the shortcoming justifies such action.
- buyer
was asked to furnish security to guarantee the fulfilment of his
obligations resulting from the agreement when the contract was
concluded and that this security is not provided or insufficient. As
soon as security is furnished, the authorisation to suspend shall
lapse, unless said fulfilment has been unreasonably delayed because
of it.
2. User
shall furthermore be authorised to dissolve the agreement (have the
agreement dissolved) if circumstances arise of such a nature that
fulfilment of the obligations becomes impossible or can no longer be
demanded in accordance with the requirements of reasonableness and
fairness, or if other circumstances arise of such a nature that the
unaltered maintenance of the agreement can no longer be demanded in
all reasonableness.
3. If
the agreement is dissolved, the user's claims against the buyer shall
be forthwith due and payable. If user suspends fulfilment of his
obligations, he shall retain his rights under the law and the
agreement.
4. User
shall always retain the right to claim damages.
Article
15 Return of Goods Put at buyer's Disposal
1. If
user has put goods at buyer's disposal during and in connection with
the execution of the agreement, buyer shall be held to return the
delivered goods within 14 days in their original state, free of
defects and in their entirety. If buyer fails to fulfil this
obligation, all resulting costs shall be at buyer's expense.
2. If,
for any reason whatsoever, buyer still remains in default to fulfil
the obligation mentioned under 1. after being warned to do so, user
shall be entitled to recover the resulting damage and costs,
including replacement costs, from buyer.
Article
16 Liability
1. If
the goods delivered by user are defective, user's liability vis à
vis the buyer shall be limited to the arrangements made in the
present terms and conditions under "Guarantee".
2. If
user is liable for direct damage, then said liability shall be
limited to a maximum of twice the amount of the statement of
expenses, at any rate that part of the agreement to which the
liability relates. user's liability shall at all times be limited to
a maximum equalling the amount of the payment to be made by user's
insurer in the occurring event.
3. Direct
damage shall be understood to be exclusively:
- the
reasonable costs incurred to establish the cause and the volume of
the damage, in so far said establishment relates to damage in the
sense of the present terms and conditions
- the
reasonable costs possibly incurred to have user's faulty performance
meet the conditions of the agreement, unless such faulty performance
cannot be attributed to user;
- the
reasonable costs incurred to prevent or limit the damage, in so far
buyer demonstrates that said costs have led to the limitation of
direct damage as meant in the present general terms and conditions.
4. User
shall never be liable for indirect damage, including consequential
damage, loss of profit, lost savings and damage due to business
stagnation.
5. The
limitations of liability for direct damage contained in the present
terms and conditions shall not apply if the damage is due to
intentional act or omission or gross negligence on the part of user
or his subordinates.
Article
17 Transfer of Risk
1. The
risk of loss of, or damage to the products being the subject of the
agreement, shall be transferred to buyer the moment said products are
judicially and/or actually delivered to buyer and therefore fall into
the power of buyer or of third parties to be appointed by buyer.
Article
18 Force Majeure
1. Parties
shall not be held to fulfil any of their obligations if they are
hindered to do so due to a circumstance through no fault of their own
and which cannot be attributed to them by virtue of law, a legal
action or generally accepted practice.
2. In
addition to the provisions of the law and the judge-made law in this
respect, force majeure shall in the present general terms and
conditions furthermore be understood to be any external circumstance,
be it envisaged or not, on which user cannot have any influence but
which prevents user from fulfilling his obligations. Industrial
action at user's company shall also be understood to be a
circumstance of force majeure.
3. User
shall also be entitled to invoke force majeure if the circumstance
rendering (further) fulfilment of the obligation(s) impossible,
commences after the point in time on which user should have fulfilled
his obligation.
4. Throughout
the duration of the circumstances of force majeure, parties shall be
entitled to suspend the fulfilment of their obligations. If this
period lasts for more than two months, either of the parties shall be
entitled to dissolve the agreement without any obligation to pay the
opposite party damages.
Insofar
user has already partially fulfilled his obligations resulting from
the agreement at the moment the circumstance of force majeure
commenced or shall be able to fulfil them and insofar separate value
can be attributed to the part already fulfilled or still to be
fulfilled respectively, user shall be entitled to invoice the part
already fulfilled or still to be fulfilled respectively. The buyer
shall be held to pay this invoice as if it were a separate
agreement.
-
Article
19 Safeguarding
1. The
buyer shall safeguard user against claims filed by third parties
concerning intellectual property rights on material or data provided
by the buyer, which shall be used for and during the execution of the
agreement.
2. If
the buyer provides user with information carriers, electronic files
or software etc., the former shall
guarantee that said information carriers, electronic files or
software are free of viruses and defects.
Article
20 Intellectual Property and Copyrights
1. Without
prejudice to the other stipulations of the present general terms and
conditions, user shall reserve the rights and authorities to which
user is entitled under the Copyright Act.
2. The
buyer shall not be allowed to introduce changes to the goods and
material provided, unless the nature of the delivered goods and
material dictates otherwise or if agreed upon otherwise in writing.
3. The
designs, sketches, drawings, films, software and other material or
(electronic) files, possibly produced by the user within the
framework of the agreement, shall remain user's property,
irrespective of the fact whether they have been handed over to the
buyer or to third parties, unless agreed upon otherwise in writing.
4. All
documents, such as designs, sketches, drawings, films, software,
(electronic) files, etc., provided by user, shall be destined to be
used by buyer exclusively and must not be reproduced, made public or
brought to the notice of third parties by buyer without prior
consent from user, unless the nature of the documents provided
dictates otherwise.
5. User
shall reserve the right to use the knowledge gained due to the
execution of the work for other purposes, in so far no confidential
information shall be brought to the notice of third parties when
doing so.
Article
21 Secrecy
1. Both
parties shall be bound to secrecy of all confidential information
they have received within the scope of their agreement from each
other or from another source. Information shall be considered to be
confidential if the other party has indicated so or if the
confidential character results from the nature of the information.
2. If
a statutory provision or a judicial decision compels user to convey
confidential information to third parties designated by law or by the
court and user cannot for that purpose invoke a legal right to refuse
to give evidence or such a right acknowledged or allowed by the
competent court, user shall not be held to pay damages or
compensation and the opposite party shall not be entitled to demand
the dissolution of the agreement on the ground of any damage
resulting from said circumstance.
Article
22 Non-employment of the opposite party's personnel
1. Throughout
the duration of the agreement and for one year following termination
thereof, buyer shall not in any way, hire or employ in any other way,
be it directly or indirectly, staff of user or of enterprises whom
user has engaged to execute the present agreement and who are (were)
involved in the execution of the agreement, without prior proper
businesslike consultation on this matter, all this in accordance with
the requirements of reasonableness and fairness.
Article
23 Disputes
1. The Court in user's place of business shall have
exclusive jurisdiction to hear actions, unless the District Court is
the competent Court. User shall nevertheless be entitled to submit
the dispute to the Court deemed competent by the law.
2. Parties
shall only refer the matter to the court if they have done their
utmost to solve the dispute in mutual consultations.
Article
24 Applicable Law
1. Dutch law shall apply to each and every agreement
between user and the buyer. The Vienna Sales Convention shall be
explicitly excluded.
Article
25 Changes to the Terms and Conditions, interpretation and their
location
1. The
Dutch version of these general terms and conditions prevails at all
time in case of disputes with regard to the interpretation and
purpose of these terms and conditions.
2. The
most recently filed version shall always apply, or, as the case may
be, the version valid at the time the agreement was concluded. |
