Article 1 - Definitions
In these general terms and conditions, the terms hereunder have the following meaning:
- Consumer: the buyer who does not act for purposes related to his/her profession or business.
- De Kade Boutique: the trade name of the online webshop (https://www.dekade-boutique.com) of the
‘besloten vennootschap’ (private company) De Kade B.V. (hereinafter: De Kade B.V.).
- Parties: The parties previously mentioned under article 1 paragraph 1 and article 1 paragraph 2 are in
these general terms and conditions jointly referred to as “Parties”.
- Distance agreement: the agreement that is concluded between De Kade B.V. and the Consumer on the
basis of an organised system for distance sales of products, whereby Parties up to and including the conclusion of the agreement, exclusively or partially use one or more techniques for distance communication, including the processes that can be used to conclude an agreement without the Consumer and De Kade B.V. simultaneously meeting in the same space (hereinafter: Agreement).
- Additional agreement(s): an agreement whereby the Consumer acquires products from De Kade B.V. in connection with a Distance agreement and these goods are delivered by De Kade B.V. or by a third party on the basis of an agreement between that third party and De Kade B.V.
- Reflection period: the period within which the Consumer can make use of his right of withdrawal.
- Right of withdrawal: the possibility of the Consumer to cancel the Agreement with De Kade B.V. within the
- Day: calendar day.
- Durable medium: any medium, including the use of e-mail, that enables the Consumer and/or De Kade
B.V. To store information that is addressed to him/her personally in a way that future consultation of use for a period intended for the purpose for which the information is intended, and which allows unaltered reproduction of the stored information.
- Model form for withdrawal: the European Model form for withdrawal that can be downloaded here or with a hyperlink at the end of these general terms and conditions. A hyperlink to the Model form for withdrawal can also be found in the confirmation e-mail that the Consumer receives after placing an order.
Article 2 – Who are we?
De Kade B.V. (operating under the name of De Kade Boutique)
Business & visiting address:
1076 BN Amsterdam
E-mail address: email@example.com
Chamber of Commerce number: 60970677
VAT identification number: NL854142368B01
Article 3 - Applicability of the general terms and conditions
- These general terms and conditions apply exclusively to any (form of) offer and/or Agreement concluded through De Kade B.V. webshop www.dekade-boutique.nl between De Kade B.V. and the Consumer or Non-Consumer.
- Before the Agreement is concluded, the text of these general terms and conditions will be made available to the Consumer. If this is not reasonably possible, De Kade B.V. will indicate before the Agreement is concluded how the Consumer can examine the general terms and conditions. De Kade B.V. will also ensure that the general terms and conditions are sent free of charge as soon as possible at the request of the Consumer.
- If the Agreement between De Kade B.V. and the Consumer is concluded electronically, by way of derogation from the previous paragraph and in all instances before the Agreement is concluded, the text of these general terms and conditions can (also) be made available to the Consumer electronically in such a way that the Consumer can easily store these general terms and conditions on a Durable medium. If this is not reasonably possible before the Agreement is concluded, De Kade B.V. will indicate where the general terms and conditions can be examined electronically. De Kade B.V. will also ensure that the general terms and conditions are sent free of charge as soon as possible at the request of the Consumer.
- In the event that specific product terms and conditions apply in addition to these general terms and conditions, the provisions of the second and third paragraph of this article apply accordingly. In the event of conflict between these general terms and conditions and specific product terms, the Consumer in that case is always entitled to invoke the applicable provision that applies most favourable to him/her.
- By accepting an offer and/or entering into a (Distance) Agreement, the Consumer acknowledges that he/she has taken notice of the content of these general terms and conditions and accepts the (full) applicability thereof.
- The applicability of any (general) terms and conditions from the Consumer or (legal) person who acts in the capacity of his profession or business is explicitly excluded while conducting an Agreement with De Kade B.V., unless explicitly agreed otherwise in writing.
- The special rules with regard to the Distance Agreement and/or (other) rules derived from consumer law do not apply to a customer who contracts with De Kade B.V. in the capacity of a profession or business (hereinafter: the Non-Consumer). The following provisions of these general terms and conditions: article 7 paragraph 3; article 8 paragraph 3 and articles 10-13 do not apply to the Non-Consumer. The other provisions, where applicable, will be adapted – in line with the original intention – to the context that is customary in case of a Non-Consumer.
- When in these general terms and conditions reference is made to a Consumer, this also includes the buyer that is a
Non-Consumer insofar as the (content of the) provision applies to Non-Consumers.
Article 4 - Communication between Parties
- Any communication between De Kade B.V. and the Consumer can take place electronically, unless determined otherwise by law or the Parties.
- In case these general terms and conditions prescribe that a statement needs be confirmed in writing, this also implies that this can be done electronically, provided that the electronic message can be easily consulted, stored permanently and that the electronic message can be printed.
- The Consumer is responsible for the storage of (their version of the) electronic communication. The version of the electronic communication stored by De Kade B.V. serves as proof thereof, subject to proof to the contrary provided by the Consumer.
- Electronic communications are deemed to have been received at the time, or with a few seconds delay, of transmission. If the electronic communication is not received (in time) due to (ICT) problems on the part of the recipient, the consequence thereof will be entirely at the expense and risk of that party, even if the e- mail server is located at a third party.
Article 5 – The offer
- In case an offer from De Kade B.V. has a limited period of validity, or is made subject to (additional) conditions, such information will be explicitly specified in the offer.
- The offer of De Kade B.V. contains an as complete and accurate description as possible of the product(s) offered with the aim of creating a proper assessment possibility for the Consumer. If De Kade B.V. makes use of images, these images are represented as accurate as possible to the true representation of the products offered. The Consumer cannot, however, derive any rights based on the images displayed by De Kade B.V.
- Evident mistakes or evident errors in the offer or price do not bind De Kade B.V. in any way.
- De Kade B.V. does everything that is reasonably possible to display the properties of the products offered, including the size, composition and colours, as accurately as possible. The image(s) and/or colour(s) that the Consumer sees on his/her screen depends, however, (among other things) on various factors over which De Kade B.V. has no control, including matters such as screen quality, application version, computer
system etc. The Consumer cannot derive any rights from the displayed image(s) and/or colour(s).
- The dimensions and/or colours of the products on the website of De Kade B.V. are only meant as guidelines. They are intended to give the Consumer an idea of the model, fit and colour of that particular product and do not guarantee the actual aspects of the product(s) that the Consumer will receive. The final
aspects of a product depend on the material used.
Article 6 – The price
- During the processing of the Consumer’s order, the prices of the products offered are not increased and/or this has no influence on Agreements concluded, except for price changes in raw materials, import duties, taxes, VAT rates, transport costs and/or other government-imposed regulations/rates or taxes that affect the purchase price of products or the fulfilment of the Agreement. In that case, De Kade B.V. is entitled to adjust the purchase price (that is still due) in proportion to the increase(s) imposed by measures as mentioned before. In that case, the Consumer is entitled to terminate the Agreement, unless the price change is the result of a price increase due to legislation.
- The prices of the products that are offered to European Consumers through the webshop of De Kade B.V. are in Euros, including VAT and excluding any administration costs, transport costs, any applicable taxes and/or other costs (imposed by the government), unless the Parties have agreed otherwise in writing. The prices of the products offered through the webshop of De Kade B.V. to Consumers who live/are located outside the EU are in Euros, excluding VAT and excluding administration costs, transport costs, any applicable (import) taxes and/or other duties. Any import taxes and/or other levies/duties for non- European Consumers are at the expense of the Consumer.
- Apparent printing, typing or typesetting errors and/or price changes on the website are reserved. In the case of a Non-Consumer, all printing, typing, typesetting errors and/or price changes are reserved and do not constitute grounds for liability.
Article 7 - Payment of the order
- Unless explicitly otherwise stipulated in the Agreement or additional conditions/written agreements, the amount owed by the Consumer must be paid within fourteen (14) Days after the start of the Reflection period, or in the absence thereof, within fourteen (14) Days after the conclusion of the Agreement, unless the Consumer has chosen another payment method whereby (pre)payment is requested directly, in which case the amount is due immediately.
- Payment takes place through (one of) the offered payment methods as chosen by the Consumer during the ordering process. Further (payment/order) conditions (of third parties) may apply to the order. The date of receipt of the payment by De Kade B.V. applies as the date on which the amount paid is received.
- When selling products to Consumers, De Kade B.V. is entitled to require a maximum advance payment of fifty percent (50%) of the purchase price, unless the Consumer explicitly agrees (by selecting a method that allows for full transfer) to immediately transfer the full amount due; however, this remains always a free choice of the Consumer and will never be required by De Kade B.V., unless permitted by law. When the Consumer chooses (full) prepayment, the Consumer cannot assert any rights whatsoever with regard to the execution of the order(s) in question before the stipulated payment has been made.
- The Consumer has the duty to immediately report inaccuracies in provided or stated (payment) data to De Kade B.V. All (disadvantageous) implications arising from the failure to correct the (payment) data in a timely manner will be borne by the Consumer, to the extent that correction of the provided data could be expected from the Consumer.
- If the Consumer does not fulfil his/her payment obligation(s) on time, the Consumer will be in default after being notified by De Kade B.V. of the aforementioned situation. In that case, the Consumer owes statutory interest on the amount due in accordance with the rules that apply for Consumers or business transactions, as well as that De Kade B.V. is entitled to charge the extrajudicial collection costs incurred. These extrajudicial collection costs amount to a maximum of: fifteen percent (15%) on outstanding amounts up to two thousand and five hundred Euros (€ 2,500.00); ten percent (10%) over the next two thousand and five hundred Euros (€ 2,500.00) and five percent (5%) over the next five thousand Euros (€ 5,000.00) with a minimum of forty Euros (€ 40.00) for Consumers. In case of Non-Consumer transactions, the collection costs are at least ten percent (10%) of the invoice value with a minimum of two hundred and fifty Euros (€ 250.00) excluding VAT.
- The Consumer agrees that De Kade B.V. is entitled to send payment requests, among other things, to the e-mail address (data) specified by the Consumer.
- De Kade B.V. reserves the right to transfer (under assignment) any claims for payment, including any payment terms, statutory interest and/or collection costs owed, regarding the Agreement concluded between the Parties and/or the obligation arising therefrom, to third parties.
Article 8 – The Agreement
- Subject to the provisions of paragraph 4 of this article, the Agreement between Parties is concluded at the time of acceptance of the offer by the Consumer by (among other things) complying with the corresponding conditions, as follows from the ordering process.
If the Consumer has accepted the offer electronically, De Kade B.V. will immediately confirm receipt of the acceptance of the offer electronically. As long as De Kade B.V. has not confirmed receipt of this acceptance, the Consumer can terminate the Agreement, without prejudice to the other provisions of these general terms and conditions.
- At the latest upon delivery of the product to the Consumer, De Kade B.V. will provide the following information, in writing or in such a way that it can be stored by the Consumer in an accessible manner on a Durable medium, insofar as it is not already included in the general terms and conditions or other (pre- sent) communication with the Consumer:
- The visiting address of De Kade B.V. (in case a Consumer has a complaint);
- The conditions- and the way in which the Consumer can make use of his/her Right of withdrawal, or at the least a clear notification in regard to being excluded to the Right of withdrawal;
- The information about guarantees and existing service(s) after purchase;
- The price, including all taxes, of the product(s); insofar as applicable, the costs of delivery and the method of payment as follows from the concluded Agreement;
- In case the Consumer has a Right of withdrawal, (a hyperlink to) the Model form for withdrawal.
- At the time of entering into the Agreement, the Consumer declares that he/she has reached the age of at least eighteen (18) years and that he/she is eligible to enter into Agreements.
Article 9 - Delivery and execution of the Agreement
- De Kade B.V. will take the greatest possible care when receiving- and executing the Agreement with regard to customer’s order(s).
- The address details that the Consumer has provided to De Kade B.V. are considered to apply as the place of delivery, unless the Parties explicitly agree otherwise in writing. The order will be delivered in accordance with the shipping method chosen by the consumer (usually: by post/courier).
- The stated delivery times on the website are not intended as strict deadlines, unless explicitly agreed differently in writing. If a delivery term is exceeded, the Consumer must give De Kade B.V. written notice of default. With due observance of the aforementioned, De Kade B.V. will execute accepted orders with appropriate speed, but no later than thirty (30) Days, except in the situation that timely delivery is not possible as a result of circumstances that cannot be attributed to De Kade B.V., or in the case that another delivery period has been explicitly agreed in writing between the Parties. If delivery of an order is delayed because of a product (temporarily) being out of stock, or if (partial) execution of the Agreement is (temporarily) not possible, the Consumer will be informed of such within fourteen (14) Days. In that case, the Consumer is entitled to cancel the order free of charge, unless a different delivery period has been agreed upon explicitly and in writing with the Consumer.
- If the Consumer terminates the Agreement in accordance with the previous paragraph, De Kade B.V. will refund the amount that the Consumer has paid without delay, but no later than fourteen (14) Days.
- If De Kade B.V., after receipt of the order, still needs information in order to execute the Agreement, or if a (partial) advance payment has been stipulated, the delivery time will only commence after the Consumer has supplied the (requested) correct and complete information, respectively paid the stipulated advancement.
- If the Consumer refuses to accept a delivery of the ordered, De Kade B.V. can charge the resulting costs to the Consumer, without prejudice to De Kade B.V.’s right to terminate the Agreement in that case and whereby De Kade reserves the right to claim full compensation from the Consumer.
- If the information provided by the Consumer is incorrect, De Kade B.V. will exclusively deliver an order on basis of a ‘best efforts’ obligation.
- The risk of damage and/or loss of products rests with De Kade B.V. until the moment of delivery to the Consumer or a pre-designated representative made known to De Kade B.V., unless Parties have explicitly agreed to otherwise in writing.
Article 10 - The Consumer’s Right of withdrawal
- The Consumer can terminate the Distance Agreement with regard to the purchase of product(s) without giving reasons during a Reflection period of fourteen (14) Days.
- The Reflection period referred to in paragraph 1 of this article starts on the Day after the Consumer, or a representative designated by the Consumer in advance, who is not the carrier, has received the product, or:
- If the Consumer has ordered several products in the same order: the Day on which the Consumer, or a representative designated by him, has received the last product. De Kade B.V. may refuse an order for several products with different delivery times, provided that the Consumer has been clearly informed about this prior to the ordering process;
- If the delivery of a product consists of several shipments or parts: the Day on which the Consumer, or representative designated by him, received the last shipment or the last part;
- In the case of an Agreement for regular delivery of products during a certain period: the Day on which the Consumer, or a representative designated by him, has received the first product.
Article 11 - Obligations of the Consumer during the Reflection period
- During the Reflection period, the Consumer will handle the delivered products and packaging with due care. The Consumer will only unpack or use the product to the extent necessary to determine the nature, characteristics and operation of the product. The basic principle here is that the Consumer may only handle and inspect the product(s) as he/she would physically be allowed to do in a store.
- The Consumer is liable for depreciation of the product(s) which is the result of a way of handling the product(s)/packaging that goes beyond what is permitted under paragraph 1 of this article.
Article 12 - Exercise of the Right of withdrawal by the Consumer
- If the Consumer wishes to make use of his/her Right of withdrawal as mentioned under article 10 of these general terms and conditions, the Consumer then must notify such to De Kade B.V. within the Reflection period by means of sending the Model form for withdrawal or another unambiguous written (or electronic) statement to this effect to Stadionkade 107, 1076 BN in Amsterdam or e-mail them to: firstname.lastname@example.org.
- The Consumer will return the product(s) as soon as possible, but within fourteen (14) Days from the Day following the notification referred to in paragraph 1 of this article, by sending it to- or hand it over to (an authorised representative of) De Kade B.V.
- The Consumer returns the product(s) with all accessories supplied, if reasonably possible in its original condition and packaging, and in accordance with the reasonable and clear instructions provided by De Kade B.V.
- The risk and the burden of proof for the correct and timely exercise of the Right of withdrawal lies with the Consumer.
- The Consumer bears the direct costs of returning the product, unless De Kade B.V. indicates that it will bear these costs itself.
- If the Consumer makes use of his/her Right of withdrawal, all Additional agreements related to the original (Distance) Agreement will be dissolved by operation of law.
Article 13 - Obligations of De Kade B.V. regarding the Right of withdrawal by a Consumer
- When De Kade B.V. has received the notification of withdrawal by the Consumer electronically, De Kade B.V. will send a(n) (e-mail) confirmation of receipt as soon as possible after receiving this notification.
- De Kade B.V. reimburses all payments made by the Consumer, including any delivery costs charged by De Kade B.V. for the delivery of product(s) without delay, but no later than fourteen (14) Days, following the Day on which the Consumer notifies the withdrawal. Unless De Kade B.V. offers to collect the product itself, De Kade B.V. may postpone paying back until the product has been received or until the Consumer demonstrates that he/she has already sent the product(s).
- De Kade B.V. uses the same payment method for reimbursement as the Consumer used in the order process or by bank transfer, unless the Consumer agrees to a different method of reimbursement. The reimbursement is free of charge for the Consumer.
- If the Consumer has opted for a more expensive method of delivery than the standard (cost for) delivery, De Kade B.V. is not required to repay the additional costs for the more expensive method.
Article 14 - Exclusion of Right of withdrawal
- De Kade B.V. is entitled to exclude products (mentioned below) from the Right of withdrawal. When this is the case, De Kade B.V. will clearly state such to the Consumer in the offer, or in any case before the conclusion of the Agreement. Excluded from the Right of withdrawal are:
- Products manufactured according to the Consumer’s specifications, which are not prefabricated and which are manufactured on the basis of an individual choice or decision of the Consumer, or which are clearly intended for a specific person;
- Sealed products that are not suitable to be returned for reasons of health protection or hygiene and of which the seal has been broken after delivery;
- Products that due to their nature are irrevocably mixed with other products/goods.
- If the offered products can only be purchased as a set and the Consumer wishes to make use of his/her Right of withdrawal, then (sub)parts of the set cannot be returned separately (from each other). The set must be returned in its entirety.
Article 15 - Compliance with the Agreement & legal guarantee
- De Kade B.V. guarantees that, in accordance with normal use, its products comply with the Agreement, the specifications stated in the offer, the reasonable requirements of reliability and/or usability of the products as well as any applicable legal requirements/regulations, as can reasonably be expected at the time of delivery, provided that the Consumer utilises the products in accordance with the by De Kade B.V. indicated use of these products and provided that the Consumer has done so in accordance with the usage- and washing instructions. However, the actual lifespan of products can never be guaranteed.
- If the Consumer wishes to use/purchase the products offered by De Kade B.V. outside of the Netherlands, the Consumer is responsible for verifying whether the products (to be purchased) are suitable for the intended use and whether the products meet the conditions and (legal) requirements imposed on the products.
- De Kade B.V. is liable towards the Consumer, within the framework of warranty, for defects in the products delivered in case the defect occurs during the legal warranty period, insofar as the Consumer has made a timely complaint and all this with due observance of the (rest of the) provisions of this article as well as article 16 of these general terms and conditions. De Kade B.V.’s warranty obligation does not extend to defects that are exclusively or partly the result of normal wear and tear, failure to follow instructions for use- or washing, incorrect use or repair(s) by third parties.
- The liability of De Kade B.V. by virtue of its legal warranty obligation is, in principle, limited to free repair of a defective product, or to replacement of the product (or part thereof), all this at the sole discretion of De Kade B.V.
- In addition to the provisions of this article, the provisions of articles 17, 18 and 19 of these general terms and conditions apply.
Article 16 - Complaints from the Consumer
- If the Consumer has a complaint about (defective) products that have been delivered by De Kade B.V., then the Consumer must describe the complaint in writing as complete and clearly as possible and send it to De Kade B.V. using the contact details as mentioned under article 2 of these general terms and conditions. The clearly described complaint(s) must be submitted to De Kade B.V. within a reasonable time, counting from the moment that the Consumer has discovered or should reasonably have discovered the defect of the product(s). Notification within two months after discovery, if the Agreement has been concluded between De Kade B.V. and a Consumer, is considered timely. A notice period of no more than fourteen (14) Days applies to all other contracting parties of De Kade B.V.
- If the complaint(s) of the Consumer is (or are) well-founded, the Consumer must at all times give De Kade B.V. the opportunity to take note of the complaint(s) and subsequently allow De Kade B.V. to arrange for replacement or repair of the delivered product(s).
- If repair or replacement as referred to in the previous paragraph of this article cannot, in all reasonability, be required of De Kade B.V., or if De Kade B.V. does not take care of the replacement or repair of the defect within a reasonable period of time and/or without causing serious inconvenience, the Consumer is entitled to terminate the Agreement without observing a specific term.
- The assessment of whether a defect in the product(s) qualifies for reimbursement of costs always falls to De Kade B.V., regardless of the aforementioned, unless the Parties have deviated from this in writing or in case law provides otherwise.
Article 17 - Liability of De Kade B.V.
- Any form of liability of De Kade B.V. for damage arising from, or related to, the fulfilment of the Agreement is always limited, unless it results from intent or deliberate recklessness on the part of De Kade B.V. or a third party that it has engaged for (a part of) the fulfilment of the Agreement, or in the event that mandatory (Consumer) provisions prohibit the limitation of liability. The liability of De Kade B.V., for whatever reason, is always limited to the repayment of no more than the net amount stated in the Agreement, and in the absence of an invoice value, no more than five hundred Euros (€ 500.00). Insofar as the liability arises from the actions and/or omissions of the Consumer and/or the incorrect actions of De Kade B.V. is the result of an act and/or omission of the Consumer, the liability is completely excluded.
The applicability of article 6:76 of the Dutch Civil Code is expressly excluded. The limitations of liability deriving from article 17 of these general terms and conditions are also stipulated for the benefit of any third party who is engaged in the fulfilment of an Agreement or who can be or is held liable in connection therewith.
- Without prejudice to the provisions of the other paragraphs of this article, De Kade B.V. is under no circumstances liable for damage to the Consumer consisting of loss of turnover or goodwill, reduced revenue, lost profit, death and personal injury, consequential damage, company damage, stagnation damage or for other forms of indirect damage, unless the result of intent or wilful recklessness on the part of De Kade B.V. or insofar as article 7:24 paragraph 2 of the Dutch Civil Code or title 5, section 6 of the sixth book of the Dutch Civil Code opposes the limitation of liability.
- Without prejudice to the provisions of the other paragraphs of this provision, De Kade B.V. is never obliged to pay a total compensation amounting to more than any insured amount, in the event that De Kade B.V. is covered for the damage by a valid (liability) insurance contracted by De Kade B.V.
- The Consumer indemnifies De Kade B.V. against claims from third parties who suffer damage in connection with the fulfilment of the Agreement and the cause of which is attributable to the Consumer.
- In all cases, the period within which De Kade B.V. can be held liable for compensation for damage is limited to six (6) months, starting from the moment when the liability has been established. Contrary to the foregoing, a maximum period of one (1) year applies to the Consumer. In the case of Consumer purchase, this limitation does not go beyond what is permitted under Articles 6:236 of the Dutch Civil Code, 6:237 of the Dutch Civil Code and/or 7:24 paragraph 2 of the Dutch Civil Code. Insofar as delivered products are provided with a guarantee by the manufacturer, this guarantee will apply equally between the Parties.
- No guarantee is offered on discolouration of (natural) products supplied by De Kade B.V. in the context of an Agreement.
- The Consumer is in any case responsible for the maintenance of the delivered goods by De Kade B.V. Defects that arise as a result of overdue/deficient maintenance of the delivered goods are at all times at the risk and expense of the Consumer.
- The Consumer cannot claim his rights against De Kade B.V. and is liable for all damage, whereby the Consumer also indemnifies De Kade B.V. against any claim from third parties with regard to any form of compensation if and insofar as:
- Damage is caused by unintended or premature use, contrary usage against the instructions or advice of De Kade B.V., incorrect maintenance, improper storage of the delivered products and/or is the result of any work/activity performed by or on behalf of the Consumer;
- Damage has arisen due to errors and/or inaccuracies in drawings, data, materials, information carriers et cetera that have been provided and/or prescribed to De Kade B.V. by or on behalf of the Consumer;
- Damage has arisen through instructions from or on behalf of the Consumer to De Kade B.V. (even if De Kade B.V. has notified the Consumer of the risks);
- Damage that has arisen because of the Consumer or a third party that has carried out repairs or other operations/work on the delivered goods on behalf of the Consumer, without the prior written permission of De Kade B.V.
Article 18 – Force majeure
- If any shortcomings of De Kade B.V. in the fulfilment of an Agreement are not due to its fault, nor can they be attributed to De Kade by virtue of the law, the concluded Agreement or generally accepted views, the force majeure will not be attributed to De Kade B.V. In such cases, De Kade B.V. is entitled to suspend its obligations until the force majeure has ended. If the force majeure, as a result of which the (complete) fulfilment of the concluded Agreement remains impossible, lasts for a period of more than two (2) months, the Parties are then individually entitled to dissolve the Agreement with regard to the products affected by the force majeure, without owing (damage) compensation to the other Party. The Consumer remains fully obligated to pay for what has already been delivered.
The shortcomings in the context of force majeure referred to in these general terms and conditions include government measures, lack of raw materials, (extreme) frost, flooding, war situation, terrorism, riots, acts of war, fire, water damage, lightning strike, failure to supply or blockage in the supply of necessary products/material from suppliers or other parties involved, obstructions in the supply or repair of production resources, strike or transport inhibitions, import and export prohibitions imposed by or on behalf of governments, lack of means of transport as well as electrical failures or failures in the online ordering system of the website of De Kade B.V. Furthermore, this also includes all circumstances, events, causes and consequences that fall outside the control and/or sphere of influence of De Kade B.V., which are unforeseeable and/or of which De Kade B.V. cannot and may not reasonably be expected to foresee or anticipate on, as well as all other circumstances that are understood under force majeure according to current social views and in accordance with the current state of (case) law.
- If De Kade B.V. is temporarily or permanently prevented from (the execution of the Agreement) towards the Consumer (properly) due to force majeure, the latter can suspend the Agreement in whole or in part, or if the circumstance lasts longer than two (2) months, dissolve the Agreement by sending a written statement to this effect. De Kade B.V. is in this case not obligated to pay any (form) of compensation for damage.
- If De Kade B.V. is permanently or temporarily prevented from fulfilling the concluded Agreement as a result of shortcomings in the performance on the part of the Consumer, then De Kade B.V. has the right to dissolve the Agreement in whole or in part by means of a written statement to this effect to the Consumer. De Kade B.V. is in this case not obligated to pay any (form) of compensation for damage.
Article 19 - Suspension and dissolution of the Agreement by De Kade B.V.
- In addition to the provisions of article 18 in the event of force majeure, De Kade B.V. is authorised, without the necessity to send a(n) (additional) notice of default or to mandate judicial intervention, to (partially) suspend the fulfilment of its obligations under the Agreement(s) with the Consumer or to dissolve the Agreement(s) in whole or in part in the cases where:
- The Consumer is already in default or De Kade B.V. has good ground(s) to fear that the Consumer will not (fully) or timely fulfil its obligations;
- The Consumer does not have (or no longer has) the power of disposition or capacity to act, so that the Consumer can no longer freely dispose of his/her assets and/or perform legal acts;
- On the basis of circumstances whereby fulfilment of the Agreement is reasonably impossible and/or cannot not reasonable be expected from De Kade B.V. or in the cases that unaltered continuation of the Agreement cannot reasonably be expected of De Kade B.V.
- In the cases as referred to in the previous paragraph of this article, all possible obligations of the Consumer will become immediately due and payable while De Kade B.V. is not obligated to pay compensation, unless there is dissolution of the Agreement as a result of circumstances that cannot be attributed to the Consumer.
Article 20 – Intellectual properties of De Kade B.V.
- All intellectual and/or industrial property rights, such as trade/brand names and copyrights and/or other related rights (on the website(s)) of De Kade B.V., as well as those related to the products made available to the Consumer such as materials and/or information, including test pieces, packaging, labels, products, composition and/or specifications of test pieces/products, as well as technical and commercial know-how, models and molds, strategies, designs and such are held by De Kade B.V., its suppliers, (sub)contractors, licensors or other entitled parties. Any use of the website(s) of De Kade B.V., or the content thereof, including the full or partial copying or storage of such content other than for your own, personal and non- commercial use, is explicitly prohibited without prior written permission from De Kade B.V.
Article 21 – Retention of title and the right of recovery
- De Kade B.V. reserves at all times the ownership of goods delivered, and those to be delivered, until the Consumer has fully performed his payment obligations towards De Kade B.V. These payment obligations also include any claim from De Kade B.V. for compensation due to damages as a result of the Consumer’s failure to fulfil his/her obligations.
- If circumstances arise in which third parties assert rights to the products delivered by De Kade B.V. and that are subject to retention of title pursuant to the previous paragraph of this article, the Consumer is then obliged to immediately inform De Kade B.V. of such situation.
- As long as the Consumer has not yet (fully) fulfilled his/her payment obligations in the context of the Agreement or any other claim arising therefrom towards De Kade B.V., the Consumer is not authorised to pledge the delivered products as collateral to third parties or establish a non-possessory collateral on the products. The Consumer may also not place the products under the actual control of one or more third parties for storage, in which case this will be regarded as an attributable failure to perform on the part of the Consumer. In that case, De Kade B.V. can suspend all its obligations under the Agreement without giving a notice of default, or De Kade B.V. is entitled to dissolve the Agreement, without prejudice to De Kade B.V.’s right to full compensation for all its damage.
- De Kade B.V. reserves the right to invoke the right of recovery under article 7:39 of the Dutch Civil Code if and when the Consumer fails its obligation to pay the price within the agreed term, or it has become clear that the Consumer will not comply with its obligation to pay. To this end, De Kade B.V. will immediately send the Consumer a written notice in which it explicitly invokes the right as indicated above.
Article 22 - Amendments to the general terms and conditions
- De Kade B.V. is authorised to make (unilateral) changes to these general terms and conditions at any time. These changes come into effect on an in advance announced time of entry. De Kade B.V. will make the amended general terms and conditions available to the Consumer timely before they come into effect. If no time of entry is communicated, a change will only take effect with regard to the Consumer as soon as he has been notified of the change in writing (or electronically).
Article 23 - Applicable law
- This and any subsequent Agreement is exclusively governed by Dutch law. The applicability of the UN Convention on the International Sales of Goods (CISG) in the case of a Non-Consumer is explicitly excluded.
- All disputes that may arise between the Parties - as a result of any Agreement and other actions in connection with the Agreement - will be submitted to the sub district court in Amsterdam after an attempt has been made to reach an extrajudicial solution, except insofar as binding competence rules apply and
would get in the way of the competence determination.
- The original (Dutch) translation of the general terms and conditions is always decisive for the
Article 24 - Other provisions
- In the event that any provision of these general terms and conditions is void and/or voidable, the Parties will enter into consultation in order to replace the annulment or voidable provision(s) by a provision that matches the original intention and purport as much as possible and which is composed in such a way that it no longer constitutes an annulment or voidable provision. The other provisions of these general terms and conditions remain unaltered.
- If De Kade B.V. makes use of additional terms and conditions or provisions that conflict with these general terms and conditions, this will not affect the validity and applicability of other (non-conflicting) provisions of these general terms and conditions.
Article 25 - Privacy
Model form for withdrawal