STANDARD TERMS AND CONDITIONS OF SALE
Article 1 - Definitions
1. In these Standard Terms and Conditions, Smarter Living BV, with its registered office in Dordrecht, the company incorporated under the laws of the Netherlands, registered with Register of Companies of the Chamber of Commerce under number 51658380, is referred to as the vendor.
2. In these Standard Terms and Conditions, the other party of the vendor is referred to as the purchaser.
3. The parties refers to the vendor and the purchaser together.
4. The agreement refers to the purchase agreement between the parties.
Article 2 - Scope of the Standard Terms and Conditions
1. These terms and conditions govern all quotations, proposals, agreements and provision of services or goods by or on behalf of the vendor.
2. Any deviation from these terms and conditions is only possible following express and written agreement between the parties.
Article 3 - Payment
1. The purchaser pays the full purchase sum on placing the order. In case of reservations, a deposit determined by the vendor is expected.
2. If the purchaser does not pay on time, he shall be held in default by operation of the law on expiry of the set payment period. If the purchaser remains in default, the vendor is entitled to suspend the deliveries and other obligations until the purchaser has met his payment obligation in full, or to dissolve the agreement.
3. If the purchaser remains in default of payment and the deliveries already took place, the vendor shall proceed with collection without issuing a further notice of default. All costs pertaining to the collection shall be at the purchaser's expense with a minimum of 15% of the payable amount.
4. In the event of liquidation, bankruptcy, attachment or a composition on the part of the purchaser, the vendor’s claims on the purchaser shall be due and payable immediately.
Article 4 - Proposals/quotations, delivery periods and price
1. Proposals/quotations are without obligation, unless the proposal refers to a period of acceptance and the vendor has noted expressly that the proposal cannot be revoked during that period. If the proposal is not accepted within the set period, the proposal expires.
2. Delivery periods are indicative and do not grant the purchaser a right of dissolution or damages in the event they are exceeded. The vendor is entitled to amend the volumes of the agreed delivery schedule in all circumstances.
3. Proposals/quotations do not apply automatically to subsequent orders.
4. The unit price referred to in proposals, quotations and invoices consists of the purchase price to be increased by the payable VAT and any other government levies. Additional costs (delivery charges, specific packaging, urgency fees etc) are charged separately.
Article 5 – Right of withdrawal if the agreement between the parties is deemed a consumer purchase (Section 7: 5(1) of the Netherlands Civil Code)
1. Following receipt of the order, the consumer is entitled to dissolve the agreement without stating reasons during a period of 14 days (right of withdrawal). The term commences as of the time the consumer has received the complete order.
2. There is no right of withdrawal if the products were customised in accordance with specifications or only have a limited shelf-life.
3. The consumer may use the vendor's withdrawal form. The vendor is bound to make this available to the purchaser upon the purchaser's request.
4. During the cooling-off period, the consumer shall treat the product and the packaging with due care. He shall unpack or use the product only to the extent required to assess whether he wishes to keep the product. If he invokes his right of withdrawal, he shall return the unused and undamaged product and all the supplied accessories - if reasonably possible - in the original packaging to the vendor in accordance with the clear and reasonable instructions provided by the vendor.
Article 6 - Amendments to the agreement
1. If, during the implementation of the agreement, it becomes apparent that a proper implementation of the agreement requires amended or additional acts, the agreement shall be amended accordingly at the vendor’s instructions. If the amendment is at the purchaser's request, the vendor is entitled to refrain from the delivery or to ask for financial compensation.
2. If the parties agree that the agreement is amended or supplemented, the time of completing the implementation may be affected. The vendor shall inform the purchaser as soon as possible.
3. If the amendment of or addition to the agreement has financial and/or qualitative consequences, the vendor shall inform the purchaser in writing in advance. 4. If the parties have agreed a fixed price, the vendor shall note to what extent the amendment or addition to the agreement leads to this price being exceeded.
Article 7 - Transfer of risk
As soon as the order has been delivered to the transport company, the risk transfers from the vendor to the purchaser.
Article 8 - Inspection and complaints
1. The purchaser is bound to inspect the delivery at the time of delivery, but in any case to inspect or have it inspected as soon as possible. The purchaser should ascertain whether the quality and quantity of the delivered goods comply with the agreements between the parties, or rather that the quality and quantity comply with the requirements imposed in the normal course of business.
2. Complaints regarding damage, shortages or loss of delivered goods shall be submitted in writing (in either Dutch, English or German) and properly substantiated, to the vendor within 10 working days following the date of delivery of the goods.
3. If the complaint is deemed founded within the imposed period, the vendor is entitled to either repair, redeliver, or to refrain from delivery and to send the purchaser a credit note for that part of the purchase price.
4. Minor deviations and/or deviations customary in the sector and differences in quality, quantity, size or finish cannot be invoked against the vendor.
5. Complaints regarding a specific product do not influence other products or elements that are part of the same agreement.
6. After the goods have been processed by or on behalf of the purchaser, complaints are no longer accepted.
Article 9 - Samples and models
1. If a sample or model was shown or issued to a purchaser, it is presumed to have been provided only as an indication without the delivered goods having to comply. This is different if the parties have agreed expressly that the delivered goods shall match.
2. In respect of agreements regarding immovable property, the note of the surface area or other dimensions and indications are only deemed to be an indication, without the transferred property having to comply.
Article 10 - Delivery
1. Delivery is ‘ex-factory/shop/warehouse’. This means that all additional costs shall be borne by the purchaser.
2. The purchaser is obliged to purchase the goods at the time the vendor delivers them or has them delivered, or at the time they are made available to him in accordance with the agreement.
3. If the purchaser refuses to take delivery or fails to provide information or instructions required for the delivery, the vendor shall be entitled to store the goods at the purchaser’s risk and expense.
4. If the goods are delivered, the vendor is entitled to charge delivery costs.
5. If the vendor requires details from the purchaser to implement the agreement, the delivery period commences after the purchaser has made those details available to the vendor.
6. A period for delivery stated by the vendor is indicative. It is never a strict deadline. In the event this period is exceeded, the purchaser shall issue the vendor with a written notice of default.
7. The vendor is entitled to deliver the goods in part, unless the parties have agreed otherwise in writing or partial delivery does not have any independent value. In the event of partial deliveries, the vendor is entitled to invoice these parts separately.
Article 11 - Force majeure
1. If the vendor is unable to comply with his obligations from the agreement, or cannot comply with those properly or on time due to unforeseen/unexpected circumstances, he is not liable for damage suffered by the purchaser.
2. The parties define force majeure in any case as any circumstance the vendor could not have taken into account at the time of concluding the agreement and as a result of which the normal implementation of the agreement cannot reasonably be required from the vendor, such as sickness, war or threat of war, civil war and riots, acts of war, sabotage, terrorism, energy disruption, flooding, earthquake, fire, industrial action, strikes, lock outs, amended government measures, transport difficulties and other disruptions in the vendor's business.
3. The parties also define force majeure as the circumstance where the suppliers the vendor depends on for the implementation of the agreement do not comply with their contractual obligations in respect of the vendor, unless this is attributable to the vendor.
4. If a situation as aforementioned occurs as a result of the which the vendor is unable to meet his obligations in respect of the purchaser, the obligations shall be suspended whilst the vendor is unable to comply with his obligations. If the situation as referred to in the previous sentence has continued for 30 calendar days, the parties are entitled to dissolve the agreement in writing, in full or in part.
5. If force majeure continues for more than 3 months, the purchaser is entitled to dissolve the agreement with immediate effect. Dissolution is only possible by way of a registered letter.
Article 12 - Transfer of rights
One party's rights resulting from this agreement cannot be transferred without prior written permission from the other party. This provision is deemed to apply as a provision with a property-law effect within the meaning of Section 3:83(2) of the Netherlands Civil Code.
Article 13 - Retention of title and right of retention
1. The goods or components at the vendor intended for the purchaser or delivered goods and components remain the property of the vendor until the purchaser has paid the agreed price in full. Up to that time the vendor can invoke his retention of title and take back the goods.
2. If the agreed deposits are not paid or not paid on time, the vendor is entitled to suspend the implementation of the agreement until the agreed part has been paid. In that case this concerns creditor's default. In that situation, delayed delivery cannot be invoked against the vendor.
3. The vendor is not entitled to pledge the goods that are governed by his retention of title, or to encumber them in any other way.
4. The vendor is obliged to insure the goods delivered to the purchaser under retention of title and to keep them insured against fire, explosion and water damage and against theft and to issue the insurance policy for inspection on demand.
5. If the goods have not been delivered, but the agreed deposit or price was not paid in accordance with the agreement, the vendor has a right of retention. The goods will not be delivered until the purchaser has paid in full and in accordance with the agreement. 6. In the event of liquidation, insolvency, or a composition on the part of the purchaser, the purchaser’s obligations are due and payable immediately.
Article 14 - Vendor's liability
1. Without prejudice to the provisions of Articles 14.2 and 14.3, any liability of the vendor for damage, resulting from or associated with implementing the agreement is always limited to the amount that is paid by the vendor’s liability insurance in the case in question.
2. Only direct damage, which is the result of a serious shortcoming attributable to the vendor in complying with the agreement, is open to compensation. Indirect damage, such as loss of profits, trading losses, reputation damage, consequential damage, shall never be liable for compensation.
3. In all situations, the damage amount, whichever way it was caused, is limited to an amount equal to the purchase sum of the agreement with a maximum of € 10,000.
Article 15 - Duty of complaint
1. The purchaser is obliged to report complaints regarding the delivery or deliveries to the vendor immediately. The complaint should contain the most detailed possible description of the shortcoming to ensure the vendor is able to respond adequately.
2. If a complaint is founded, the vendor is bound to repair and possibly to replace the goods.
Article 16 - Guarantees
1. The vendor guarantees that the sold goods comply with the agreement, that it shall operate without defects and that it is suitable for its intended purpose. This guarantee applies for a period of one year following the purchaser's receipt of the sold goods.
2. The aforementioned guarantee does not apply when the defect arose as a result of inexpert or improper use or when - without permission - the purchaser or third parties made changes or attempted to make changes or used the purchased goods for purposes for which it was not intended. Incorporation by a non-professional party makes the guarantee null and void.
3. If the guarantee provided by the vendor pertains to goods produced by a third party, the guarantee is limited to the guarantee issued by that manufacturer.
Article 17 - Intellectual property rights
1. The vendor retains all intellectual property rights - including copyright, patent right, brand right, drawing and model right, etc - on all products, designs, drawings, documents, carriers with data or other information, proposals, images, sketches, models, scale models, etc.
2. The purchaser may not copy or show, or have copied or shown, the aforementioned intellectual property rights to third parties and/or make them available or use, or have them used or made available, in any other way without prior written permission from the vendor.
Article 18 - Amendments to the Standard Terms and Conditions
1. The vendor is entitled to amend and/or supplement these Standard Terms and Conditions.
2. Consumers-purchasers are entitled to terminate the agreement in the event of a significant amendment to the Standard Terms and Conditions insofar as said agreement has not yet been implemented.
Article 19 - Applicable law and competent court
1. Every agreement between the parties is governed solely by the laws of the Netherlands.
2. The Dutch court of the jurisdiction where the vendor is located has exclusive competence to take cognisance of any disputes between the parties, unless the law dictates otherwise.
3. The applicability of the Vienna Sales Convention is excluded.
4. If one or more provisions of these Standard Terms and Conditions are deemed unreasonably onerous in judicial proceedings, the remaining provisions continue to apply in full force. The affected provisions shall be replaced in that case in a manner that approximates the original wording/tenor as closely as possible.