ARTICLE 1 - GENERAL
1.1. The user of these general terms and conditions shall be taken to mean Frankly Amsterdam B.V., Sumatrakade 735 - 737, (1019 PV) Amsterdam, the Netherlands.
1.2. These general terms and conditions apply to all agreements and contracts concluded by the user, as well as to the formation of such agreements and contracts and to all offers and instructions submitted by the user.
1.3. In the event of con ict between these general terms and conditions and any general terms and conditions used by the other party, these general terms and conditions shall prevail. The general terms and conditions used by the other party shall be explicitly excluded.
1.4. Stipulations varying from these general terms and conditions shall only be binding if and insofar as the user has agreed to this in writing.
ARTICLE 2 - FORMATION OF CONTRACTS
2.1. Unless explicitly stated otherwise, all offers, quotations, etc. submitted by the user are free of any obligation. Oral promises shall only be binding upon the user after the user has explicitly confirmed them (in writing).
2.2. Orders must be submitted to the user in writing. The user shall only be bound to such orders after the user has confirmed an order in writing, or if the user has already started carrying out an order or started preparing to do so. Confirmation shall be deemed to give a correct summary of the contract, unless a written objection to this has been received within eight days of submission or dispatch. If no separate written confirmation is forthcoming, the invoice will replace this.
2.3. When accepting an offer from the user, the other party shall be deemed to have ascertained the user’s rates and prices and to have agreed to them.
2.4. The other party can only cancel an order in writing within 24 hours of the user confirming the order in writing. Amendments to and cancellations of orders placed by the other party shall only take effect after the user has agreed to these in writing.
2.5. The models, illustrations, drawings and measurements given in the offers, appended to them or communicated with them give a general representation of the goods offered. Amendments to the colour and/ or design, whereby the actual version deviates slightly from the aforesaid models, illustrations, drawings and measurements but whereby no essential changes in the technical and aesthetic properties of the goods have been effected, shall not oblige the user to make any compensation, and do not give the other party the right to refuse receipt or payment of the goods supplied.
ARTICLE 3 - DELIVERY OF GOODS
3.1. The user must state the estimated delivery date of the goods in the order confirmation. Since the delivery dates stated by the user are approximate and free of obligation, they shall not be considered to be a strict deadline unless a certain delivery date is explicitly guaranteed by the user. The user bases the fixing of the delivery date on the circumstances known to it at that time.
3.2. If the delivery date is exceeded, this does not oblige the user to make any compensation whatsoever. In the event that a delivery date agreed upon is exceeded, the other party can only terminate the contract after it has sent a warning to the user and given the user notice of default in writing. In such an event, the user is entitled to make a subsequent delivery of all or part of the goods no later than 10 working days after receipt of the warning.
3.3. If the other party does not accept the delivery made by the user, the user is entitled to demand full performance of the contract or to terminate the contract in writing, in which case the other party shall be liable to forfeit to the user an immediately payable penalty amounting to 30% of the invoice amount, by reason of a breach. This does not prejudice the user’s right to claim full compensation.
3.4. For each country the dispatch costs are calculated seperately. The shipping costs are mentioned on the most recent pricelist of the country in question.
3.5. Unless the parties have explicitly agreed otherwise, the delivery of the goods shall be deemed to have taken place at the time of their actually being placed at the other party’s disposal, or at the disposal of a third party to be designated by the other party.
3.6. Transport of the goods shall be at the risk of the other party at all times.
3.7. All possible damage caused by transport must be reported to the user immediately upon delivery of the goods. The risk of damage and/or loss of products if the goods are returned shall rest with the other party.
3.8. After delivery, the other party shall bear the full risk of the goods which form the subject of the contract.
3.9. The user is entitled at all times to deliver the goods in consignments, and to invoice these consignments separately.
ARTICLE 4 - GUARANTEE AND MAINTENANCE
4.1. The user must guarantee the quality of the goods supplied for a period of 24 months for rugs and 12 months for other products after delivery of the aforesaid goods.
4.2. If the other party has repaired or altered the goods, or had them repaired or altered, without explicit prior written consent from the user, all warranty obligations on the part of the user shall lapse.
4.3. All forms of guarantee shall lapse if a defect has arisen as a consequence or a result of improper use or misuse of the goods. The user is not obliged to repair goods which have become defective as a result of vandalism, negligence, intentional act or gross negligence, and damage caused by vermin. Nor is the other party entitled to any guarantee if such defects have arisen through or as a result of circumstances beyond the user’s control, including weather conditions.
4.4. If the goods delivered prove not to be of good quality within the period of 12 months specified in paragraph 1 of this Article, the user must choose one of the following options:
- repairing the goods;
- replacing the goods;
- crediting a proportional part of the invoice to the other party.
4.5. If the other party fails to lodge a complaint with the user in writing no later than eight days after discovering the defect, or after it could reasonably have been expected to discover the defect, the other party can no longer plead a defect in the goods delivered.
4.6. The other party shall be personally responsible for the normal maintenance and cleaning of the goods supplied. In addition, the other party shall be responsible for repairing any damage resulting from normal wear and tear when using the goods, at the user’s discretion.
ARTICLE 5 - PRICES
5.1. All prices quoted exclude transport costs, VAT and other levies imposed by the authorities, and exclude any costs incurred by third parties engaged by the user to perform work for the other party.
5.2. Customs formalities for the purpose of ensuring the free traffic of imported goods, or of placing goods under a customs procedure, or of exporting goods, shall be complied with by the user but shall be payable by the other party.
5.3. The user is entitled to increase the price agreed upon if the costs of one or more of the factors determining the prices go up after the date on which the contract was concluded. Price-determining factors include purchase prices, transport costs, prices of materials, production costs including wage increases, import duties, taxes and government levies all over the world. The user must inform the other party of such increases at its earliest convenience.
ARTICLE 6 - PAYMENT AND DEFAULT
6.1. Unless the user and the other party have agreed otherwise in writing, payment shall be effected by the other party, without any form of setoff, as follows:
- for the user’s new customers: the total purchase price when the contract is concluded;
- for the user’s existing customers: the total purchase price within 30 days of the invoice date.
6.2. Invoicing shall always be done in Euros.
6.3. If the other party fails to fulfill its payment obligations in full and/or within the specified time within the meaning of paragraph 1 of this Article, the other party is in default ipso jure without further notice of default being required. In such an event, the other party must pay interest amounting to 1.5% a month on the sum outstanding, with effect from the date on which the amount owing has become due and payable until the time of payment, whereby a part of a month shall be calculated as a whole month, and without prejudice to the user’s other rights.
6.4. If the other party is in default, it must also pay extrajudicial collection costs amounting to 15% of the total sum owing, with a minimum of EUR 225 excluding VAT.
6.5. Notwithstanding the terms of payment agreed upon, the user is entitled to demand that the other party provide sufficient security for payment. If the other party fails to provide such security, it is in default and the user is entitled to terminate the contract and to recover the loss from the other party.
6.6. If the other party is in default with respect to the (punctual) fulfillment of its obligations pursuant to a contract, or if it is clear that the other party is unable to fulfill its obligations vis-à-vis the user, and/or unable to fulfill them punctually and/or in full, or if the other party has been declared bankrupt, if the statutory debt rescheduling arrangement has been declared to apply, or if an application for a bankruptcy order for the other party has been made, if the other party has applied for a moratorium, or if the other party has been placed under guardianship, or if any attachments of its assets have been made, the user is entitled to suspend performance pursuant to all contracts existing between the parties, or to terminate all or part of the contracts concluded with the other party, without any notice of default or judicial intervention being required, and without the user being obliged to pay any compensation itself, and all the other party’s obligations pursuant to all existing contracts between the parties shall be immediately due and payable.
ARTICLE 7 - FORCE MAJEURE
7.1. If a situation of force majeure exists, the user is entitled either to suspend fulfilment of its obligations vis-à-vis the other party, or to terminate all or part of the contract, without judicial intervention and without any obligation to pay any compensation to the other party or to third parties, at the user’s discretion.
7.2. Force majeure should be taken to mean all circumstances beyond the user’s control or all circumstances which it could not reasonably be expected to foresee, which impede the user in the fulfillment of its obligations pursuant to the contract, either temporarily or permanently. In any event, such circumstances include but are not limited to: war, civil war, threat of war, riots or other breaches of the peace, re, natural disasters, floods, strikes, sit-down strikes, restrictive government measures, import and export barriers, unforeseen defects in machinery, power cuts, and complete or partial failure on the part of third parties which provide goods or services.
ARTICLE 8 - RETENTION OF TITLE AND OTHER FORMS OF SECURITY
8.1. Everything that the user supplies to the other party, or will supply to the other party, shall remain the property of the user for as long as any sums are still owing to the user pursuant to any contract, which sums include but are not limited to losses, penalties, interest and costs. The other party is not entitled to dispose of or encumber the goods supplied for as long as it fails to fulfill all its payment obligations in full.
8.2. If it is clear that the other party has not fulfilled its obligations vis-à-vis the user, and/or has not fulfilled them punctually and/or in full, or will be unable to do so, the user shall be irrevocably authorized to fetch back the goods which are still its property, or to have such goods fetched back from the place where such goods are stored, at the expense of the other party and without any notice of default being required. The other party is obliged to cooperate immediately with this in every possible way. The foregoing does not prejudice the user’s right to performance, termination and/or compensation.
8.3. If the user is of the opinion that there is good reason to do so, the user is entitled to demand payment or security for the other party’s fulfillment of its obligations before delivering the goods. Until that time, the user is entitled to suspend its obligations or terminate the contract, without prejudice to its right to claim performance and/or compensation in addition.
8.4. If and as long as the user is still the owner of the goods delivered to the other party, or still to be delivered to the other party, the other party must immediately inform the user in the event that the aforesaid goods are attached or if such attachment is imminent, or if third parties otherwise lay claim to the aforesaid goods or any part thereof. Moreover, the other party must inform the user on request where the aforesaid goods are being stored.
8.5. The other party guarantees that an attachment of the aforesaid goods will be lifted as soon as possible. In the event of (imminent) attachment, a (temporary) moratorium, bankruptcy or application of the statutory debt rescheduling arrangement for natural persons with respect to the other party, the other party must immediately inform the third party threatening attachment, the bailiff making the attachment, the administrator or the receiver, of the user’s proprietary rights and other rights.
8.6. The user has a right of retention in respect of the goods which it has in its possession pursuant to any contract with the other party, which means that the user is entitled to retain the aforesaid goods in its possession until the other party has ful lled all its obligations arising under the contract.
ARTICLE 9 - COMPLAINTS
9.1. The other party is obliged to inspect the goods supplied, or have them inspected, immediately upon receipt of the goods. In doing so, the other party must ascertain whether the quality and/or quantity of the goods supplied correspond with those agreed upon, and fulfill the requirements agreed upon by the parties in this respect. Any visible defects, which shall include in any case flaws in the goods supplied by the user, must be reported to the user in writing no later than eight days after delivery, or no later than eight days after the other party could reasonably have been expected to discover such defects. Any defects which are not visible must be reported in writing to the user forthwith, but in any event no later than fourteen days after they have been discovered. The report must contain as detailed a description as possible of the defects to enable the user to respond adequately. The other party must give the user the opportunity to investigate any complaints or to have them investigated. After the aforesaid periods have expired, the other party’s right to plead that the goods are not t for their purpose shall lapse ipso jure, with the exception of the provisions of Article 4 of these general terms and conditions.
9.2. Complaints shall never give the other party any right to suspend all or part of the payment of the purchase price or additional costs, while any reliance on setoff is explicitly excluded.
9.3. If a complaint has been accepted as valid by the user, the other party must contact the user to enable the user to collect the goods. The costs and risks of transport shall be payable by the user. Unless agreed otherwise, the user will only accept returned goods on condition that they are as good as new, at the discretion of the user.
9.4. At the discretion of the user, goods returned shall be either credited at an amount to be reasonably determined by the user, whereby the contract shall be deemed to have been terminated, or replaced by similar goods, without the user being obliged to refund damages, interest and costs incurred or suffered by the other party and/or by third parties.
9.5. Repairs which the user is not obliged to make shall be exclusively carried out at the other party’s expense, after the latter has agreed in writing to the costs of such repairs.
9.6. Knitted products are by their nature subject to pulls and/or runs from contact with, e.g., sharp objects, jewelry, fingernails, pet’s claws; therefore this limited warranty does not cover defects or damages resulting from accident, misuse, abuse, neglect, unusual physical stress, modification or maintenance of the Product. Normal wear and tear of the Product are expressly excluded from this limited warranty.
ARTICLE 10 - LIABILITY
10.1. The user is not liable for losses suffered by the other party as a result of breach, wrongful acts or otherwise, unless the losses are the sole and direct result of gross negligence or intentional act on the part of the user.
10.2. Insofar as the user might be obliged to make any compensation on the basis of defects in the goods, such compensation shall not exceed the invoice amount for the goods delivered.
10.3. The user is not liable for losses arising from the exceeding of periods, nor is it liable for consequential losses or indirect losses.
10.4. The user is not liable for losses caused by third parties engaged at the request and with the consent of the other party during performance of the contract, or for losses caused by materials supplied by third parties at the request and with the consent of the other party. The other party is obliged to give the aforesaid third parties sufficient opportunity to carry out their work properly. The other party must abide by any regulations which apply to such work and/or such materials.
10.5. The user is not liable for losses caused by improper use of the goods, or by using such goods for a purpose other than that for which they are intended in accordance with objective standards.
ARTICLE 11 - INTELLECTUAL PROPERTY
11.1. Unless explicitly agreed otherwise in writing, all intellectual property rights pertaining to the goods supplied by the user are vested in the user.
11.2. The other party is not permitted to alter or remove trademarks or identifying marks affixed to the goods supplied by the user or on the packaging used for such goods, or to alter the goods supplied or any part thereof, or to publish or reproduce them, unless explicit written consent thereto has been obtained from the user.
11.3. In the event of claims made by third parties relating to an infringement of such rights, or if there is a suspicion that the performance of a contract infringes the rights of third parties, the user is at liberty to take such measures as it sees t to eliminate the alleged infringement and to limit the relevant damage as much as possible.
11.4. The other party must immediately inform the user of all claims made by third parties relating to an infringement or imminent infringement of intellectual property rights with respect to the goods delivered or to be delivered, or work carried out or to be carried out, by the user.
ARTICLE 12 - PRESCRIPTION OF RIGHTS
12.1. The right of action of the other party, other than a natural person who acts or co-acts in the practicing of or on behalf of a liberal profession or company, vis-à-vis the user shall become barred no later than one year after such right has arisen.
ARTICLE 13 - DISPUTES: APPLICABLE LAW AND COMPETENT COURT
13.1. Dutch law shall exclusively apply to all contracts and other legal relationships between the user and the other party.
13.2 The Vienna Sales Convention (CISG) does not apply, nor do any other international regulations whereby exclusion is permitted.
13.3. Any disputes arising between the parties with respect to this contract and other legal relationships shall in the first instance be exclusively settled by the competent court in Amsterdam.