General Terms and Conditions of:

 

A.J.J. Pennings h.o.d.n. Synths 'n Stuff

Jan Evertsenstraat 19 II

1057 BL Amsterdam

 

Chamber of Commerce Amsterdam, Registration Number: 343413690000

(AS 219-08 Engels)

 

Article 1:             Applicability, definition of terms

 

1.     These General Terms and Conditions apply to all offers and all sale and purchase agreements concluded via the www.synthsnstuff.com belonging to A.J.J. Pennings h.o.d.n. Synths 'n Stuff, a company that has its registered office in Amsterdam, hereinafter to be referred to as ‘the user’.

2.     The buyer or the client is referred to hereinafter as ‘the other party’, unless a provision pertains specifically to a situation in which the other party is a natural person who is not acting in a professional capacity or running a business, in which case buyer is referred to as ‘the consumer’.

3.     The other party agrees to these General Terms and Conditions when placing an order.

4.     Provisions that differ from these General Terms and Conditions only form part of the agreement concluded between the parties in the event that and to the extent that there is an explicit written agreement between the parties to this effect.

5.     In these General Terms and Conditions the terms ‘written’ and ‘in writing’ also refer to correspondence by e-mail and fax and any other method of communication that can be considered equivalent given the state of technology and generally accepted standards.

6.     In these General Terms and Conditions the term ‘website’ refers to the website(s) belonging to the user referred to in clause 1 of this article.

7.     The possible inapplicability of (part of) a provision of these General Terms and Conditions does not affect the applicability of the remaining provisions.

8.     The other party cannot claim that these General Terms and Conditions were not provided if it has already concluded several agreements that were also subject to these General Terms and Conditions via the user’s website and therefore had the opportunity to take note of these General Terms and Conditions.

 

Article 2:             Agreements

 

1.     Agreements are concluded in the manner indicated on the website. The user is only bound by the agreement once the user has explicitly accepted the order placed by the other party.

2.     Additions and/or changes to the General Terms and Conditions and/or any other changes and/or additions to the agreement are only binding once they have been confirmed in writing by the user.

 

Article 3:             Offers

 

1.     All offers, price lists, and prices quoted on the user’s website are subject to change unless they are said to be valid for a specific period. If the other party accepts an offer that is subject to change, the user has the right to withdraw the offer within 2 working days of receipt of acceptance of the offer.

2.     In the absence of an explicit written indication to the contrary, the prices quoted by the user in offers, price lists and on the website are noted exclusive of VAT and any other costs that may apply, which include shipping costs and a handling or administration fee. VAT, shipping costs and any other extra costs that may apply will be specified per item.

3.     The specification of a composite price for an offer does not mean that the user is obliged to deliver one or more of the items included in the offer for the corresponding component of the price.

4.     Offers and prices do not automatically apply to subsequent orders.

5.     If when accepting an offer the other party stipulates terms that differ from the offer, the user is not obliged to submit to these terms. In the absence of an explicit written agreement between the parties to the contrary, this will mean that no agreement is concluded.

6.     Samples, models, colour swatches, sizes, weights and other descriptions that are issued and/or shown on the website are as accurate as possible, but are only issued or shown as an indication. In the absence of an explicit written agreement between the parties to the contrary, no rights can be derived from any such indication.

7.     a.   If government authorities and/or union organisations introduce changes in wages, terms and conditions of employment or national insurance contributions during the interval between the conclusion and the execution of the agreement, the user is entitled to pass on the cost increases to the other party. If a new price list issued by the user enters into effect during the said interval, the user is entitled to charge the other party the prices noted in the price list.

b.   In the case of an agreement concluded with a consumer, the user is entitled to pass on or charge price increases that are introduced more than 3 months after the conclusion of the agreement. If price increases are introduced in the first 3 months following the conclusion of the agreement, the consumer is entitled to cancel the agreement.

 

Article 4:             Remote purchase, approval period

 

1.     The provisions set out in this article only apply to the consumer if the consumer makes a remote purchase in the sense defined in article 46a Book 7 of the Dutch Civil Code.

2.     If the consumer makes a remote purchase in the sense referred to in the previous clause, an approval period of 7 working days applies from receipt of the ordered items, during which time the consumer has the right to cancel the agreement with the user without being obliged to give reasons.

3.     If the consumer wishes to cancel the agreement during the approval period, the consumer must notify the user to this effect in writing.

4.     In the event that the agreement is cancelled, the item(s) ordered must be returned to the user in the original packaging at the consumer’s risk and expense.

5.     In the event that the agreement is cancelled, the user will refund any payments already made by the consumer (minus shipping costs) as soon as possible once the item(s) ordered have been returned.

6.     The user has the right to refuse to accept items that have been returned and to only refund part of any payments that have already been received in the event that and to the extent that the user suspects or can see that the item(s) is/are not in the original packaging and/or has been damaged.

7.     On receipt of items that have been returned, the user will notify the consumer immediately if it is not prepared to accept the item(s) and/or is only prepared to make a partial refund.

 

Article 5:             Appointment of third parties

 

If in order to ensure that the agreement is properly carried out the user considers it appropriate to appoint third parties to make certain deliveries, the user has the right to do so.

 

Article 6:             Delivery, delivery periods

 

1.     In the absence of an explicit written agreement between the parties to the contrary, indications of periods within which items should be delivered cannot be regarded as strict deadlines. Should the user fail to fulfil its obligations under the agreement (on time), the other party must issue written notice of default.

2.     In the case of agreements with consumers, items that have been ordered will be delivered within 30 days of the order date. If delivery within 30 days of the order date is impossible, the user will notify the consumer to this effect as soon as possible, in which case the consumer is entitled to ask for a full refund of any payments already made within 1 week of being notified. If the consumer chooses to make use of this option, the user will refund any payments already made by the consumer within 30 days of being asked to do so.

3.     If an order is delivered in parts each delivery or phase will be treated as a separate transaction and the user will issue an invoice for each transaction.

4.     The risk of loss transfers to the other party the moment the items are delivered. Within the context of these General Terms and Conditions, items are considered to have been delivered the moment they leave the user’s premises, warehouse or store.

5.     Contrary to the provisions of the previous clause, in the case of transactions with consumers, items are considered to have been delivered the moment they are placed at the consumer’s disposal.

6.     In the absence of an explicit written agreement between the parties to the contrary, the user will determine the manner in which items that have been ordered are to be dispatched or transported and will arrange dispatch or transport at the other party’s risk and expense. The user is not liable for damage to the items or losses of any kind incurred as a result of dispatch or transport.

7.     Contrary to the provisions of the previous clause, in the case of transactions with consumers, items that have been ordered are dispatched or transported at the user’s risk but at the consumer’s expense. Shipping costs are included in the price or will be noted on the website.

8.     If it is not possible to deliver the items to the other party for a reason that is within the other party’s control, the user reserves the right to place the items that have been ordered in storage at the other party’s risk and expense. Unless the user explicitly specifies another period in writing, once the items have been placed in storage, the other party has a period of 1 month within which to enable the user to deliver the items.

9.     If the other party fails to meet its obligations within the period referred to in the previous clause, the other party is in default, in which case the user has the right to terminate (part of) the agreement with immediate effect in writing, without being obliged to issue prior notice or notice of default, without recourse to the courts and without being obliged to pay compensation, costs or interest. Should this be the case, the user is then entitled to sell the items to a third party or parties.

10.  The provisions set out in the previous clauses do not affect the other party’s obligation to pay the agreed or stipulated or outstanding price, as well as any storage and/or other costs.

11.  In order to ensure that the other party meets its financial obligations the user is entitled to demand payment in advance or to insist that the other party provide security, before arranging delivery.

 

Article 7:             Delivery process

 

1.     The user cannot be obliged to commence delivery of the items before all of the necessary information has been provided and any payment in advance that may be required has been received. Any delay in the issuing of information or advance payment will mean that the specified delivery periods will be revised accordingly.

2.     If deliveries cannot be made in the normal manner or without interruption through no fault on the part of the user, the user is entitled to charge the other party the ensuing costs.

 

Article 8:             Complaints and returns

 

1.     The other party is obliged to inspect the items immediately upon receipt. Details of any visible defects, errors, shortages and/or discrepancies in quantities must immediately be noted on the consignment note and reported to the user as soon as possible and certainly within 7 working days of receipt of the items.

2.     The other party is obliged to notify the user of any other complaints by registered letter immediately upon discovery, and bears the risk of the consequences of failure to do so. All complaints must be reported to the user within 1 year of delivery.

3.     In the absence of notification to the contrary within the periods mentioned above, the items will be considered to have been received in good condition.

4.     Items that have been ordered will delivered in the (wholesale) packaging that the user has in stock. Slight discrepancies in relation to specified sizes, weights, quantities and colours (etc.) do not qualify as a shortcoming on the part of the user.

5.     Imperfections in natural products do not qualify as just cause for complaint if the user is of the opinion that these imperfections are related to the nature and properties of the raw material(s) used to make the items.

6.     The fact that the other party has made a complaint does not mean that it is thereby entitled to suspend payment.

7.     The user must be given the opportunity to investigate the complaint. If the item(s) need(s) to be returned for this purpose, the user will only assume the related risk and expense if it has explicitly authorised the return in writing in advance.

8.     In all cases the item(s) must be returned in the original packaging in the manner determined by the user.

9.     The right to make a complaint ceases to exist if the nature and/or composition of items is/are altered following delivery, or if items are fully or partly processed, damaged or repacked.

10.  In the event of a justified complaint compensation will be arranged in accordance with the provisions set out in article 9.

 

Article 9:             Liability and guarantee

 

1.     In the absence of mandatory provisions to the contrary, the user will carry out its task as would be expected of a company within its industry, but accepts no liability for losses, which include losses due to death or bodily injury, consequential losses, trading losses, loss of profits and/or loses due to delay, incurred as a result of acts or omissions by (personnel or third parties appointed by) the user.

2.     The limitation of liability defined in this article does not apply if losses are incurred as a result of deliberate intent and/or recklessness on the part of (managers and/or supervisors employed by) the user.

3.     Without prejudice to the provisions set out in the other clauses of this article, the user’s liability is limited to the sum invoiced for the items that have been delivered, regardless of the reason for which the user is held liable.

4.     Without prejudice to the provisions set out in the other clauses of this article, to the extent that the user is insured, liability is always limited to the maximum sum paid out by the user’s insurer in the case in question.

5.     The user undertakes to vouch for the quality and soundness of the items that are delivered. The actual life span of the items that are delivered cannot be guaranteed.

6.     If items that are delivered are found to contain visible defects, imperfections and/or flaws that must have been present when the items were delivered, the user undertakes to repair or replace the items in question free of charge at its own discretion.

7.     Unless the user has issued explicit written confirmation to the contrary, the user does not guarantee and can never be considered to have guaranteed that the items that have been delivered are suitable for the purpose for which the other party wishes to use them.

8.     If the user delivers items that are covered by a manufacturer’s guarantee, the user will extend the same guarantee to the other party and will notify the other party of the terms of the guarantee.

9.     The other party forfeits its rights in relation to the user, is liable for all damage and indemnifies the user against all claims for compensation by third parties in the event that and to the extent that:

a.    Damage is the result of injudicious use and/or failure to follow instructions, advice, directions or information leaflets supplied by the user and/or injudicious storage of items by the other party;

b.    Damage is the result of errors, omissions and/or inaccuracies in information, materials and information carriers recommended and/or supplied to the user by or on behalf of the other party.

 

Article 10:           Payment

 

1.     Payment is to be made in the manner indicated on the website. Another method of payment will only be accepted if there is an explicit written agreement to this effect between the parties.

2.     If the parties have agreed that payment is to be made once the user has sent the other party an invoice, in the absence of an explicit written agreement between the parties to the contrary, payment is to be made within 14 days of the invoice date.

3.     If an invoice is not paid in full within the agreed term of payment, or if payment has not been made promptly in another manner as agreed:

  1. The other party will be obliged to pay the user a cumulative interest charge for late payment of 2% of the principal sum per month, with part of a month counting as a full month.
  2. Having failed to respond to a demand for payment from the user, the other party will be obliged to pay the user extrajudicial debt collection costs, which are set at a minimum of 15% of the principal sum, plus the interest charge for late payment which is set at an absolute minimum of € 150.00.
  3. The user has the right to charge the other party an administration fee of at least € 20.00 for each payment reminder and demand for payment sent to the other party.

4.     In circumstances such as those described above, the user is entitled to dissolve (part of) the agreement without being obliged to issue further notice of default and without recourse to the courts, and to demand compensation at its own discretion.

5.     If the other party defaults on payment, the user is entitled to suspend work on the order until payment has been made or adequate security has been provided. The same applies before the other party defaults on payment if the user has reason to doubt the other party’s creditworthiness.

6.     Payments made by the other party will first be offset against outstanding interest and costs and then against invoices that have been outstanding longest, unless, when making payment, the other party explicitly states in writing that the payment relates to a later invoice.

7.     a.   If for any reason whatsoever the other party has one or more counter claims against the user, the other party waives its right to setoff. The said waiver of the right to setoff also applies if the other party applies for a (temporary) suspension of payment or is put into involuntary liquidation.

b.    The provision set out in the previous subclause does not apply to agreements with consumers.

 

Article 11:           Retention of title

 

1.     The user retains the title to items that have been and are yet to be delivered until the other party has fulfilled its corresponding payment obligations in relation to the user. The said payment obligations consist of the payment of the purchase price plus any other fees for work carried out in connection with the delivery, plus any other fees and/or charges for default by the other party.

2.     The other party may only resell items delivered subject to retention of title within the context of the normal conduct of it business.

3.     If the user invokes retention of title, the corresponding agreement will be considered to have been dissolved, without prejudice to the user’s right to demand compensation for losses, loss of profits and interest.

4.     If third parties seek to exercise rights to items delivered subject to retention of title, the other party is obliged to immediately notify the user to this effect in writing.

5.     The other party is obliged to ensure that items delivered subject to retention of title are stored with due care and that they are clearly recognisable as property belonging to the user until the corresponding payment obligations in relation to the user have been met.

6.     The other party is obliged insure items delivered subject to retention of title and must keep them insured while they are still subject to retention of title. The other party must be able to present the insurance policy to the user upon request.

 

Article 12:           Encumbrance

 

1.     While the corresponding payment obligations in relation to the user remain outstanding the other party is not entitled to:

  1. give the items to a third party or parties as security;
  2. establish a nonpossessory pledge on the items;
  3. place the items in storage under the actual control of one or more lenders.

2.     Failure to act in accordance with the previous clause will be interpreted as an attributable shortcoming on the part of the other party, in which case the user is entitled to suspend the fulfilment of its obligations or to dissolve the agreement without being obliged to issue notice of default and without prejudice to its right to demand compensation for losses, loss of profits and interest.

 

Article 13:           Liquidation, no power to dispose of property

 

1.     Without prejudice to the provisions set out in the other articles of these General Terms and Conditions, the agreement between the other party and the user will be dissolved without recourse to the courts and without notice of default being required the moment the other party:

a.    is put into involuntary liquidation;

  1. applies for a (temporary) suspension of payment;
  2. is affected by executory seizure;
  3. is placed under tutelage or administration;
  4. loses some of its assets, or loses the power to dispose, of its assets or is unable to manage its affairs.

2.     The provisions set out in the previous clause apply, unless the receiver or the administrator treats the obligations ensuing from the agreement as estate debts.

 

Article 14:           Force majeure

 

1.     In the event of force majeure the user is entitled to terminate the agreement or to suspend the fulfilment of its obligations in relation to the other party for a reasonable period without being obliged to provide compensation.

2.     Within the context of these General Terms and Conditions force majeure is understood to mean non-attributable failure by (third parties or suppliers appointed by) the user, or some other factor beyond the user’s control.

3.     If force majeure occurs once the agreement has been partly carried out, the other party is obliged to fulfil its obligations in relation to the user up until that point.

4.     Circumstances that constitute force majeure include (the threat of) war, riots, mobilisation, civil commotion at home or abroad, government measures, industrial action and lock out by employees, a significant change in the exchange rates that existed when the agreement was entered into, interruption of operations as a result of fire, natural disasters, weather conditions, road blocks, problems with transport and delivery, problems with the internet, or power failures which mean that the website is not (fully) available, accidents or any other such incidents.

 

Article 15:           Cancellation, (notice of) termination

 

1.     The provisions set out in this article do not apply to cancellation of the agreement within the approval period as provided for in article 4 of these General Terms and Conditions.

2.     a.   In the absence of mandatory provisions to the contrary, the other party waives its rights to dissolve the agreement in accordance with article 6:265 ff. of the Dutch Civil Code or any other statutory provisions, but has the right to cancel or terminate the agreement in accordance with the provisions set out in this article.

b.    The provision set out in the previous subclause does not apply to agreements with consumers.

3.     Within the context of these General Terms and Conditions cancellation is understood to mean termination of the agreement by one of the parties before work has started on the implementation of the agreement.

4.     Within the context of these General Terms and Conditions notice of termination of the agreement is understood to mean termination of the agreement by one of the parties after work has started on the implementation of the agreement.

5.     If the other party cancels or terminates the agreement it is obliged to pay the user a cancellation or termination fee. The other party is obliged to cover all of the user’s costs and must compensate the user for losses and loss of profit. The user is entitled, at its own discretion, to set the related costs, losses and loss of profits at 20 to 100% of the agreed price that the user would otherwise have charged the other party in light of the work that has already been carried out and the deliveries that have already been made.

6.     The other party is liable for the consequences of the cancellation or termination of the agreement in relation to third parties and indemnifies the user against any claims in this respect.

7.     Any sums already paid by the other party will not be refunded.

 

Article 16:           Applicable law, court of competent jurisdiction

 

1.     The agreement between the user and the other party is exclusively subject to Dutch law. Any disputes arising from this agreement must be settled in accordance with Dutch law.

2.     Contrary to the provisions set out in the previous clause, if a dispute concerns items still subject to retention of title that are intended for export, if the consequences of property law applied by the legal system of the country or state in question are more favourable for the user, the dispute is to be settled in accordance with the law of the country or state in question.

3.     Any disputes arising from this agreement must be settled by the court of competent jurisdiction in the Netherlands, unless the user is entitled to bring a dispute before the court of competent jurisdiction in the place in which the user’s business is established because the district court does not have jurisdiction.

4.     In the case of disputes with consumers, if the user notifies the consumer that it wishes to bring the dispute before the court of competent jurisdiction in the place in which the user’s business is established, the consumer has one month to notify the user that he or she wishes the dispute to be settled by the legal court of competent jurisdiction.

5.     If a dispute arises from an agreement concluded with another party whose business is established outside the Netherlands, the user is entitled to act in accordance with clause 3 of this article or may bring the dispute before the court of competent jurisdiction in the country or state in which the other party’s business is established at its own discretion.

 

 

Date: 20 august 2009