Article 1: Definitions
In these General Terms and Conditions the following terms shall have the following meaning:
Supplier: barbacoa.PRO B.V. and any supplier of goods and/or services under the agreement;
Customer: the party with whom the supplier has entered into an agreement;
Parties: the supplier and the customer;
Offer: every offer in writing, made by the supplier to the customer;
Agreement: the agreement in writing between the customer and the supplier, with all appendices and including any change(s) that came about after the conclusion of the agreement;
In writing: all paper documents, including correspondence per telefax, notification or regular post also correspondence per electronic medium such as for example e-mail;
Delivery: the delivery of the goods as agreed between parties in accordance with the agreement;
Contract Price: the price to be paid by the customer to the supplier under the agreement in connection with the delivery of the goods and/or the services;
Without delay: As soon as reasonable possible but no later than the next full two (2) working days;
Article 2: Applicability and language
2.1 These general terms and conditions will be applicable to and form an integral part of all offers and agreements between parties as well to all resultant agreements, unless otherwise might be agreed in writing;
2.2 Deviating provisions and/or agreements, including any general terms and conditions used by the customer, will only be applicable when accepted and confirmed in writing by the supplier;
2.3 These general terms and conditions have originally been drawn up in the Dutch language. The English language text is a translation of the Dutch text. The Dutch text will be binding and in case of a difference of opinion about the content or purport the Dutch language text will prevail as the legally correct text;
Article 3: Offers and the realisation of the agreement
3.1 All offers will always be without obligation, unless explicitly provided otherwise.
3.2 An offer by supplier will be valid for ten (ten) working days, unless stated otherwise in the relevant offer. After fifteen (15) working days the offer is definitive withdrawn.
3.3 Any offer that is made free of obligation may be withdrawn without delay after having been accepted by the customer and no agreement can be conclude in that case;
3.4 An agreement will be concluded after an offer in writing is accepted by the customer in writing and confirmed in writing by the supplier;
3.5 In deviation of the other provisions of this article, an agreement further than to an order via the web shop will not be concluded until the moment that the order is confirmed in writing by the customer towards the supplier; 3.6 Documentation provided by the supplier will only bind the supplier insofar as the offer explicitly refers to data in that documentation;
Article 4: Prices
4.1 Unless otherwise agreed upon in writing all prices are stated in euros (€) and exclusive VAT as well as any other levies imposed by the government;
4.2 If after conclusion of the agreement, but before the delivery date, price adjustments occur at expense of the supplier, the supplier will be entitled to pass on the agreed prices to the customer after having informed the customer thereof in writing. If supplier increases the agreed prices by a percentage of fifteen (15) or more the customer will be entitled to dissolve the agreement by a statement in writing;
4.3 Unless agreed otherwise in writing, all prices are ex location from which the goods are sent;
4.4 Unless agreed otherwise in writing all the costs of transport and insurance are of expense of the customer;
Article 5: Risk
5.1 Except in cases of gross negligence by supplier and unless agreed otherwise in writing the customer shall bear all the risks from the moment that the delivery of the goods concerned have started;
5.2 If the supplier has items from the customer in his possession, for example for repairs, inspection etc., and these items are to be transported for any reason, the customer bears all the risk for loss, theft, damage etc. during transport;
Article 6: Delivery
6.1 The place of delivery shall be stated in the agreement. In case the agreement does not specify the place of delivery, the place of delivery is the place from which the goods are sent;
6.2 The time of delivery shall be stated in the agreement. Any time of delivery that differs from the agreement shall only be binding if the supplier has agreed these upon in writing;
6.3 In case the agreement does not specify the time of delivery, the delivery will take place within fourteen (14) days after conclusion of the agreement, ex warehouse;
6.4 Unless otherwise agreed upon, the supplier shall be entitled to deliver the goods in partial shipments. Each shipment will be invoiced separately, in which case the customer shall pay the separate invoices as part of the total price agreed;
6.5 If the delivery will not, or not in due time, take place, due to any act or omission of the customer, either foreseeable or not, the customer will be legally in default. 6.6 If, for whatever reason, the customer will be in legally default and the delivery will still not be accepted by the customer within two (2) weeks after the moment he is in legally default, the supplier will be entitled to withdrawn the agreement and to go over to the sale, or to take back, of the goods in question. Any lower proceeds and all the costs involved will be for the customer’s account, without prejudice to the right of the supplier to claim full damages;
6.7 In case the supplier fails to deliver in due time to reasons attributable only to the supplier, a grace period of two (2) weeks shall apply. Thereafter, the customer shall be entitled to claim liquidated damages of 0,05 % for each completed week of delay, calculated on the value of the delayed goods; Liquidated damage shall in no case exceed five per cent (5%) of the value of the delayed goods and shall only be due if the customer proves the amount of the loss suffered. Liquidated damages shall be the customer’s only remedy for damages incurred as a result of delay in delivery. Damages other than the liquidated damages are explicitly excluded;
Article 7: Force Majeure
7.1 If the supplier cannot perform his obligations under the agreement, or can only perform them in part, the supplier will be entitled either to cancel the agreement, or to suspend the performance for the duration of the force majeure, without being liable for any damages;
7.2 Force majeure is understood to mean any circumstance, foreseen as well as unforeseen, which makes it permanently or temporarily impossible to perform the agreement, included abnormal increases in the prices of supplying companies;
7.3 If the supplier wishes to claim force majeure he has to inform the customer in writing as soon as practically possible which circumstance leading to the force majeure occurred;
Article 8: Complaints
8.1 Immediately after delivery the customer has to examine the goods. Complaints relating to visible deviations and/or deflects in the goods must be sent to supplier in writing, stating reasons, within fourteen (14) days after the receiving of the goods, on pain of lapse of the right of complaint. Supplier normally gives a reaction within three (3) days.
8.2 If the complaint is well-founded by the supplier in writing, the supplier has the right, at his discretion, to repair or to replace the goods in question, or to offer the customer any discount and/or compensation;
8.3 If parties should decide that the goods in question have to be returned to the supplier, the customer will bear all the associated costs and risks, unless otherwise agreed in writing, with the exception of the costs of returning goods as to which it has been established that these contain mistakes and/or defects falling under the guarantee or for which supplier is liable.
Article 9: Invoicing and payment
9.1 All payments must be made at the office of supplier or by transfer to the bank account of the supplier no later than twenty-one (21) days after the date of the invoice;
9.2 If any payment has not been made within the term of payment as mentioned in art. 9.1 the customer will be in legally default, without requiring a notice of default;
9.3 If the customer fails to pay, even after being sent a notice of default, the supplier can claim extrajudicial costs of at least fifteen (15) per cent of the total amount due, without prejudice of the right to claim the actual costs incurred (for example lawyer and/or legal experet). In addition the supplier will be entitled to charge statutory interest over the invoice amount with a minimum of two hundred and fifty (250) euros.
9.4 The supplier will be entitled to demand full or partially payment of the contract-price in advance;
9.5 The customer will be obliged to provide on first demand security or a bank guarantee for the performance of the agreement;
Article 10: Warranty
10.1 The supplier warrants the soundness and the quality agreed if the delivered goods for the period of one (1) year. The warranty period starts the day after delivery of the goods;
10.2 The warranty period for glazed ceramic on the outside of the goods ends twenty-five (25) years after the date of the delivery of the goods;
10.3 Any warranty to be provided by the supplier shall be strictly limited to use of defective materials or defective design, provided these defects have been reported to the supplier in writing during the warrant period, within seven (7) days from the moment the customer became know or could reasonably became known of the mentioned defects. It is at the discretion of the supplier either to replace or to repair the goods;
10.4 The warranty provided does furthermore not cover defects due to or connected with:
- negligence or other improper acts of the customer, its employees or customers of the customer itself
- improper installation and alterations carried out without prior written consent of the supplier
- defects caused by or connected with normal wear and tear
- all the use and maintenance which is not in conformity with the manual and instructions provided with the goods delivered or otherwise not in accordance with good use of the goods;
10.5 The customer cannot claim under a warranty if the customer is in default to the supplier, for instance as long as the supplier has not received the payment of the price agreed in full;
Article 11: Liability
11.1 the suppliers stands for the usual, normal, quality and soundness of the goods delivered;
11.2 Except in the case of intent or gross negligence the supplier is only liable for damage due to a shortcoming. The obligation to compensate the damage shall not arise before:
- the customer shall have informed the supplier in writing of the shortcoming
- the damage is attributable to the supplier
- the customer shall have made sufficiently clear that he has taken enough precautions to prevent or to limit the damage;
11.3 If the supplier, based on a culpable shortcoming, is obliged to compensate for the damage, this obligation shall be limited to the compensation for direct damage up to the maximum amount under the agreement, excluded VAT;
11.4 In the event that the insurer of the supplier makes a payment in connection with the liability as stipulated above, the obligation to compensate for damage shall also be limited to the amount that the insurer pays for the respective case;
Article 12: Reservation of title
12.1 All goods delivered by the supplier shall remain the property of the supplier until the customer has fulfilled all due obligations under this agreement towards the supplier;
12.2 Until the moment of property has been transferred to the customer in accordance with article 12.1, the customer shall take no actions that could jeopardise the unfettered execution of the property right of the supplier. Furthermore, the customer shall take any actions reasonable required in order to protect these rights, and shall immediately return the goods to the supplier is his first request;
Article 13: Applicable law and disputes
13.1 Dutch law will govern all agreements concluded between supplier en the customer;
13.2 Disputes arising from the agreement between supplier and the customer will be exclusively submitted to the jurisdiction of the district court of The Hague;
Article 14: Return right
14.1. The consumer can terminate an agreement regarding the purchase of a product during a reflection period of at least 14 days without giving any reason. The trader may ask the consumer about the reason for the withdrawal, but not to oblige him to state his reason (s).
14.2. The reflection period referred to in paragraph 1 starts on the day after the consumer, or a third party designated by the consumer in advance, who is not the carrier, has received the product, or:
a. if the consumer ordered several products in the same order: the day on which the consumer, or a third party designated by him, received the last product. The entrepreneur may, provided he has informed the consumer in a clear manner prior to the ordering process, refuse an order of several products with a different delivery time.
b. if the delivery of a product consists of several shipments or parts: the day on which the consumer, or a third party designated by him, received the last shipment or the last part;
c. in contracts for regular delivery of products during a certain period: the day on which the consumer, or a third party designated by him, has received the first product.
For services and digital content that is not delivered on a tangible medium:
14.3. The consumer can dissolve a service agreement and an agreement for the supply of digital content that has not been delivered on a tangible medium for at least 14 days without giving any reason. The trader may ask the consumer about the reason for the withdrawal, but not to oblige him to state his reason (s).
14.4. The reflection period referred to in paragraph 3 starts on the day following the conclusion of the agreement.
Extended reflection period for products, services and digital content that has not been delivered on a tangible medium when not informing about the right of withdrawal:
14.5. If the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal or the model form for withdrawal, the cooling-off period will expire twelve months after the end of the original reflection period determined in accordance with the previous paragraphs of this article.
14.6. If the trader has provided the consumer with the information referred to in the previous paragraph within twelve months after the starting date of the original period of reflection, the reflection period will expire 14 days after the day on which the consumer has received this information.