Terms and Conditions
4ffWebshops B.V. General Terms and Conditions – Eindhoven (the Netherlands), April 2016
The following definitions apply in these terms and conditions:
- Cooling off period: the timeframe within which the consumer can exercise the right of withdrawal;
- Consumer: a natural person not acting in a professional or business capacity;
- Day: calendar day;
- Withdrawal form template: see the returns form;
- Right of withdrawal: the consumer's option to withdraw from the contract of sale within the cooling off period;
- Trader: 4ffWebshops BV, Looyenbeemd 12 in (5652 BH) Eindhoven, tel: +31 (0)40 2180567, available: Monday through Friday from 9:30 to 16:30 hours, email address: firstname.lastname@example.org, Chamber of Commerce Reg. No: 59628685 VAT number: NL 853 577 997 B01
Article 1 – General information
- These terms and conditions apply to all dealings between the consumer and the trader.
- The destruction or nullification of any provision in these terms and conditions shall not prejudice the validity of the other provisions in these terms and conditions. The nullified provisions shall in that case be replaced by provisions that resemble as closely as possible what would have been agreed had the parties been unaware of the nullity or destructibility.
- Any deviations from these terms and conditions applied at any time by the trader to the benefit of the consumer, shall never entitle the consumer to avail himself of that deviation at a later stage, or to claim the application of such a deviation as binding.
- Unilateral changes to these terms and conditions by the trader in the interim are permitted at all times. In the case of interim changes to these terms and conditions, the consumer has the right to cancel the contract of sale.
Article 2 – Establishment of a contract of sale
- The display of the trader's products on the trader's website and in the trader's webshop serves only as a no obligation invitation to the consumer to order products from the trader.
- By placing an order, the consumer offers to enter into a contract of sale.
- The trader accepts the consumer's offer at the point of supplying the products. The automatically generated confirmation email in respect of the order does not constitute acceptance of the offer, but simply records the fact that the order and thus the offer have reached the trader. It is up to the trader to decide whether or not to accept the offer. The trader will notify the consumer if the offer is not accepted.
- If, during processing of the order, the trader ascertains that the products ordered are unavailable, the consumer will be informed. There can be no contract of sale in relation to products that are unavailable.
- Only consumers aged 18 years or older may place an order with the trader and only for quantities that are customary in commerce.
- There is no minimum order value.
- The contract of sale is only valid if entered into on the part of the trader by an authorised representative.
- The trader is not bound by any concessions made by the trader's representatives, unless confirmed in writing by the trader.
- A contract of sale is agreed on the suspensive condition that the trader is able to ascertain, based on data collected and facts and factors relevant to entering into a contract of sale responsibly, that the consumer is sufficiently creditworthy.
Article 3 – The consumer's right of withdrawal
- The consumer has the right to dissolve the contract of sale within the cooling off period of 14 days without giving a reason.
- This cooling off period starts on the day after receipt of the product by, or on behalf of, the consumer, or:
- if the consumer has ordered several products in the same order: the day on which the consumer, or a third party designated by him, receives the last product. The trader may, so long as he has informed the consumer clearly prior to the ordering process, refuse an order of several products with different delivery times.
- if delivery of a product consists of different consignments or parts: the day on which the consumer, or a third party designated by him, receives the last consignment;
- in the case of a continuing performance contract: the day on which the consumer, or a third party designated by him, receives the first product.
- The consumer will treat the product and the packaging with care during the cooling off period. He will only unpack or use the product insofar as is necessary to ascertain the nature, characteristics and functioning of the product. The guiding principle is that the consumer may only handle and inspect the product as he would be allowed to do in a store.
- The consumer is liable for depreciation of the product caused by handling the product in a way that exceeds that which is permissible as described in clause 1.
- If the consumer exercises his right of withdrawal, he will notify the trader within the cooling off period by means of the withdrawal form template, or in another unequivocal way.
- As soon as possible, but within 14 days of the day following the notification described in the previous clause, the consumer will return the product, or hand it to (an authorised representative of) the trader.
- The consumer will return the product with all the accessories received, if reasonably possible, in the original condition and packaging, and as per the reasonable and clear instructions provided by the trader.
- The consumer bears the risk and the burden of proof in respect of correct and timely execution of the right of withdrawal.
- The consumer bears the costs directly associated with returning the product.
- Products manufactured according to consumer specifications, which are not prefabricated, and which are manufactured on the basis of the individual choice or decision of the consumer, or which are clearly intended for a particular person, are excluded from the consumer's right of withdrawal.
Article 4 – The trader's obligations in respect of withdrawal
- On receipt of notification of withdrawal, the consumer will receive confirmation of receipt.
- Within 30 days of the trader's receipt of the product returned by the consumer, or within 30 days after the consumer has demonstrated to the trader that the product has been sent back, the trader will refund all payments made by the consumer, including the delivery charges for the returned products, but excluding return delivery charges. If the consumer only returns part of the order, the trader will not refund the consumer for the delivery charges. If the consumer selected a delivery method more expensive than the cheapest method of standard delivery, the trader will not refund the consumer for the additional costs for the more expensive method.
- The trader will use the same payment method the consumer used to pay for the order to refund the consumer, unless the consumer agrees to a different method. The consumer will not incur charges for the refund.
Article 5 – Execution
- The trader shall never be deemed to have defaulted if a term lapses, including delivery time. A notice of default is always required, in which the trader is given a reasonable term within which to oblige. The trader is permitted to make partial deliveries.
- If, and as soon as, the trader is not able to execute the order in the usual way due to hindrance by the consumer, or because of any other reason attributed to the consumer, the consumer is obliged to compensate the trader for any costs incurred and losses suffered as a result of this.
- All deliveries are ex-works Eindhoven, the Netherlands, unless otherwise agreed in writing.
- Goods supplied by the trader are done so at the risk of the consumer from the point of delivery, unless agreed otherwise in writing.
- If the trader organises transportation of the goods, this is done at the expense and risk of the consumer. In that case, the trader is entitled to bill the consumer for delivery costs. The consumer will also bear the costs of any insurance of the transported items. The consumer always assumes the full risk for the items transported unless explicitly agreed otherwise in writing.
- The stated delivery times only commence once the trader has all the information and suchlike that is required to execute the order.
- Delivery time is based on the circumstances that exist at the time of the order. If there is a delay due to a change in these circumstances, the delivery time is automatically extended accordingly, without prejudice to the following provisions concerning force majeure.
- The trader is entitled to outsource execution of the order, or parts thereof, to third parties without permission from the consumer. If the consumer wishes to involve third parties in the order, this will only take place with the prior written approval of the trader.
- The consumer is obliged to inform the trader of all facts and circumstances that may be relevant to proper execution of his order, as well as to provide all the information and details required by the trader.
Article 6 – Complaints and guarantee
- If, and insofar as explicitly agreed in writing, the trader guarantees that the products he supplies correspond with the description and the displayed samples, with the exclusion of the minor deviations described hereafter.
- The consumer is obliged to check the products immediately on receipt in respect of defects and quantities.
- The consumer can no longer claim that which was delivered is not in accordance with the contract of sale if he did not inform the trader in writing within the cooling off period of fourteen days after receipt of the products (i.e.. did not exercise his right of withdrawal). The trader is not obliged to consider complaints about minor defects including, amongst others, colour, print, quality, finish and quantity after the aforementioned cooling off period.
- The consumer must notify the trader in writing of complaints regarding invoices issued by the trader within fourteen days of the date of the invoice. Once that period has lapsed, complaints can no longer be considered and the consumer is deemed to have waived his (implied) rights.
- The trader never guarantees that products are suitable for a particular purpose, unless agreed otherwise in writing.
- Except in the case of intent, gross negligence, or deliberate recklessness on the part of the trader, the trader is not bound by any other compensation or concession whatsoever within the scope of its guarantee.
- The trader's guarantee shall lapse irrevocably if the defects and/or faults are attributable to normal wear and tear, injudicious use, external causes, or force majeure.
- The trader offers no guarantee in respect of goods not manufactured by the trader, unless and insofar as the trader's supplier has given a guarantee that effectively covers the damage caused.
- The consumer's right to make a claim in respect of any guarantee lapses if, and as soon as, the products are no longer in their original packaging, have been adapted and/or have undergone any other (whole or partial) change.
Article 7 – Prices, payment and security
- The prices stated at the time of the order apply. VAT is included in all prices.
- Unless otherwise agreed in writing, payment must take place within fourteen days of the start of the cooling off period, or in the absence of a cooling off period, within 14 days of receipt of the product. Once the aforementioned periods have lapsed, the consumer will be in default by virtue of the term having lapsed, without a warning or notice of default being issued.
- If the trader has received no payment within the payment terms mentioned in the previous clause, the consumer is obliged to pay an interest rate equivalent to the legal interest rate ex article 6:119 of the Civil Code, plus 2% and all demands by the trader to the consumer, for whatever reason, are payable in full immediately. In terms of calculation of interest on the sum owed, any part of a month will count as a whole month.
- If the trader has received no payment within the payment terms mentioned in clause 1 of this article, the consumer is obliged to compensate the trader for all debt collection costs incurred in respect of the outstanding sum, namely:
- expense claims from lawyer(s) for their services, both judicial and extra-judicial, including insofar as they exceed judicially liquidated sums, bailiff costs, authorised agents and debt collection agencies, as well all execution costs . Extra-judicial costs are set at 15% of the principal sum, that being a minimum of € 150.-
- the costs of filing for bankruptcy
- Payments made by the consumer will always go towards settling all outstanding costs and interest and then the payable invoices that have been owing the longest, even if the consumer states that payment is for a later invoice. All payments must be made without any deductions, reductions or adjustments.
- Regardless of whether one or more payable invoices have not been settled in part or in full, the trader will always require advance payment or a bank guarantee, or in any case the equivalent security, to guarantee payment of the outstanding. The consumer will then be obliged to comply with this. In that case, the trader is also entitled to suspend fulfilment of its obligations towards the consumer, until payment has been made, or security has been forthcoming. The same applies if the trader has reason to doubt the consumer's willingness to pay and/or creditworthiness. If the consumer refuses to provide what the trader requires, the trader is free to regard the contract of sale as dissolved, without prejudice to his rights to compensation for all losses, costs and loss of profit.
- If, at any time, seizures are enforced against the consumer, the consumer will report this to the trader within 24 hours.
- If the consumer is not the end user of products supplied by the trader, the trader has the right, in the case of an overdue payment of at least 3 (three) months, to inform the end user of this and to enter into an agreement directly with the end user, if desired.
- Any appeal from the consumer to offset a payment is explicitly excluded, unless the trader agrees in advance and in writing to a specific settlement and the claim that is settled is acknowledged unconditionally in writing by the trader.
Article 8 – Ownership
- Ownership of the products supplied by the trader only transfers to the consumer after payment in full of that owing to the trader by the consumer by virtue of a contract of sale and/or these terms and conditions.
- If and as soon as the trader makes use of this retention of title, the trader is entitled to transfer ownership of the products, by, amongst others, attending the consumer's premises. The consumer grants the trader the unconditional and irrevocable authority to do this now and henceforth.
- As long as ownership of the products has not transferred to the consumer, the consumer may not transfer, pledge, lease or encumber products in any way or under any title whatsoever from his (de facto) control.
- The consumer is strictly prohibited to sell products as a party and/or through (the websites of) third parties. If the provision in this article is violated, the consumer will forfeit to the benefit of the trader, without a warning or notice of default being issued, an immediately payable penalty, which shall not be subject to mitigation, of € 25,000.00 (twenty five thousand Euros) per violation, plus a sum of € 2,500.00 (two thousand five hundred Euros) per day or part thereof that the violation continues. The aforementioned is without prejudice to consumer's obligation to compensate the trader for all losses that arise from the consumer's actions. The trader remains entitled – via summary proceedings if necessary – to pursue compliance and/or an injunction.
- Supplementary to the retention of title as described in the first clause of this article, the trader retains the (silent) right of a possessory lien on all goods supplied to the consumer for which ownership is still held by the trader, as security in relation to the consumer settling all (future) claims that the trader has or will have against the consumer, for whatever reason. The consumer is obliged to cooperate on establishing and registering an instrument to that effect on the first request of the trader.
- The consumer is obliged to notify the trader without delay of any action by third parties concerning products that belong to the trader.
- The consumer is obliged to ensure products in his possession are sufficiently insured against theft, fire, explosion, water damage, etc. and to provide the trader with a copy of the relevant insurance policies on the first request.
- All intellectual property rights, such as trademarks and author's rights pertaining to 4funkyflavours.eu are held by the trader or licensors. All use of the aforementioned website or its content, including the copying and storage of such content in part or in full, other than for own, personal and non-commercial use by the consumer, is forbidden without prior written permission from the trader.
Article 9 – Liability
- The trader is liable only for any shortcomings caused by gross negligence on the part of the trader, or because the trader has acted improperly in a way wholly attributable to the trader. The trader's liability to the consumer remains limited to the guarantee as described in article 7.
- Under no circumstances will be trader be liable to the consumer if advice and/or instructions issued by the trader and/or third parties appointed by the trader have not been followed in full and/or adequately.
- Neither will be trader be liable for losses against which the consumer is insured, or could reasonably have been insured. The consumer indemnifies the trader against claims from insurers in this regard.
- The trader will never be liable for consequential loss, immaterial loss, commercial loss, or environmental damage.
- Any claim by the consumer against the trader will lapse if no substantive legal proceedings have been brought against the trader during the course of 1 (one) year after the claim arose.
- Notwithstanding the provision in this article, if and insofar as any liability should rest with the trader, this liability of the trader in respect of damage to goods is limited to the cost of repair and replacement not exceeding the principal amount stated on the relevant invoice. In the case of injury to persons and in any and all other cases, the trader's liability is limited at all times to the compensation to which the trader is entitled through liability insurance held.
- Under penalty of inadmissibility of any claim for compensation, the consumer must notify the trader in writing of claims for compensation within no more than three months after the consumer identified the damage, or could have identified it.
- Insofar as third parties appointed by the trader to execute the contract of sale limit their liability in that respect, in all agreements with the trader, the trader has the authority to accept such limitations of liability on behalf of the consumer. The trader shall not be liable for any unforeseen shortcomings on the part of these designated third parties.
- The consumer indemnifies the trader in question against all costs, losses and interest that may arise as a result of third party claims, whether or not against the consumer, in the case of incidents, actions or negligence during, or as part of, execution of the contract of sale, or in connection with shortcomings of products supplied by the trader. The consumer is required to be insured against this.
Article 10 – Force Majeure
- If the trader is unable to fulfil his obligations arising from the contract of sale, including the guarantee referred to in article 7, due to force majeure, or because of other exceptional circumstances such as fire, labour strikes, cessation of the supply of products, measures imposed by the state, unforeseen defects and/or faults experienced by the trader or his suppliers, the trader has the right to execute the agreement wholly or in part at a different time.
- In the case of already known and ongoing force majeure, or if the force majeure has lasted longer than three months, the consumer has the right to dissolve the agreement wholly or in part without the trader being liable for any compensation to the consumer.
Article 11 – Suspension and dissolution
- If, as soon as, or for as long as the consumer has not fulfilled one or more of his obligations towards the trader arising from a contract of sale with the trader and/or these terms and conditions in a proper or timely manner, the trader is entitled to suspend his obligations towards the consumer wholly or in part. In such a case, the consumer is required to compensate the trader for all losses suffered by the trader as a result thereof, including but not limited to loss of profit. If and as soon as the consumer is in default, the trader has the right to dissolve the agreement with the consumer wholly or in part.
- In the case of dissolution, existing receivables from both sides shall become due with immediate effect. In that case, the consumer is liable for losses suffered by the trader, including amongst others, loss of revenue and costs.
- If and as soon as the consumer is declared insolvent, or a request has been lodged in this respect, or he applies for suspension of payments, or has lost power of disposal over his assets or part thereof through attachment, or by virtue of having gone into receivership or otherwise, the trader has the right to dissolve the agreement without judicial intervention and without any notice of default being required, unless the receiver or the administrator recognises the obligations flowing from the contract as liabilities of the estate.
Article 12 - Disputes
- All activities carried out by the trader, including contracts agreed by him, are governed exclusively by Dutch law.
- Any disputes between parties arising from agreed contracts of sale, shall be adjudicated exclusively by the competent district court in Oost-Brabant, the Netherlands.