SPLASH DESIGN B.V. GENERAL TERMS AND CONDITIONS
The General Terms and Conditions of Splash Design B.V., a private company with limited liability registered in the Commercial Register of the Chamber of Commerce under number 16085043 (hereinafter called: “Splash Design”). Splash Design is available via T: +31 (0)413 389 089, F: +31 (0)413 389 080 and E: [email protected].
These General Terms and Conditions refer to persons (or legal entities) and companies who are considering and/or forming an agreement with Splash Design as “the Buyer”.
These general terms and conditions have been deposited at the Dutch Commercial Register of the Chamber of Commerce.
ARTICLE 1 : SCOPE
ARTICLE 2 : QUOTATIONS & FORMATION OF AGREEMENTS
2.1 All quotations are subject to contract and may be cancelled, withdrawn or amended by Splash Design within 5 (in words: five) working days after Splash Design has been notified of the Buyer’s acceptance of the offer. Any errors and any (general) information that is not exclusively addressed to the Buyer do not bind Splash Design and shall not create any liability on the part of Splash Design.
2.2 Agreements are only formed by one of the following actions:
2.3 Only the written acceptance or an agreement signed by both Parties mentioned above in Article 2.2 or Splash Design’s quotation respectively shall be deemed to reproduce the contents of the agreement correctly.
2.4 Amendments and/or additions to the agreement are only valid after those amendments and/or additions have been accepted by Splash Design in writing or because the order has been executed by Splash Design in accordance with the amendments and/or additions.
2.5 The Buyer is irrevocably committed to the agreement after the acceptance.
2.6 All prices in the catalogue are recommended retail prices, including VAT, in Euros and are valid as from 1 January 2018. All prices given prior to 1 January 2018 do not therefore apply any more. In principle, the Buyer is permitted to deviate from aforementioned recommended prices. The prices in the said offers and quotations do not include VAT or other levies imposed by the government or shipping costs or any transport and packaging costs, unless specifically stated otherwise.
2.7 If items are delivered, Splash Design shall charge the Buyer expenses for delivery.
2.8 If the Buyer is shown, or furnished with, a sample or model, it will be assumed that it is furnished as an indication and that the item does not need to comply with that sample or model, unless it is specifically agreed that the item will comply with that sample or model.
2.9 Splash Design is always permitted to end a general discount campaign without stating the reasons. Individual discounts granted to the Buyer are valid for 30 (in words: thirty) days and shall be renewed by operation of law for 30 (in words: thirty) days, unless Splash Design notifies the Buyer prior to the next renewal that the discount shall not be renewed.
ARTICLE 3 : DELIVERY AND TRANSFER OF RISKS
3.1 After accepting an order placed by the Buyer, Splash Design shall supply the products in accordance with the order placed. Splash Design is entitled to deliver the order in instalments.
3.2 The products will be delivered to the address supplied by the Buyer. The Buyer is obliged to take delivery of the purchased products and should always be available to take the delivery, unless it has been specifically agreed otherwise in writing. The risks are transferred when Splash Design offers the products for delivery at the address supplied by the Buyer, even if the Buyer does not take delivery of them for any reason. All costs made by Splash Design in a wasted effort connected to the delivery and any further costs for transport, retention and storage shall be borne by the Buyer.
3.3 If, and insofar, the Buyer collects the products from Splash Design’s production site, the risks are transferred when the products leave Splash Design’s production site.
3.4 The time agreed or announced for Splash Design’s delivery is purely indicative and can never be regarded as a hard deadline, unless it has been specifically otherwise agreed in writing. The sole fact that a delivery is overdue can therefore never constitute default or result in liability for compensation on the part of Splash Design. Splash Design shall notify the Buyer about the actual delivery date when that date has been established by Splash Design. If Splash Design delivers the order in instalments, Splash Design shall notify the Buyer about the delivery date of each of the instalments.
3.5 If there is a delay in the delivery in relation to the delivery date established in the previous paragraph, Splash Design shall notify the Buyer of the delay. The agreement may not be nullified or terminated by the Buyer due to an overdue delivery, unless Splash Design has still not made the delivery by the final delivery date announced by the Buyer after the delivery period has expired, with the exception of a situation that is beyond Splash Design’s control.
3.6 Splash Design cannot be held liable for delays, a failure to deliver or an incorrect delivery that is the direct, or indirect, consequence of a situation that is beyond Splash Design’s control (force majeure). Force majeure is understood to include every situation beyond the power and fault of Splash Design that obstructs the normal execution of the agreement or renders it so difficult that the execution cannot reasonably by expected of Splash Design, such as strikes, illness and/or excessive absenteeism, shortage of staff, raw materials and/or materials, government measures including measures that affect imports and exports, failures on the part of third parties contracted by Splash Design (including suppliers), faults in, and/or damage to, production resources, transport obstructions and/or traffic disruptions, etc. Splash Design may also rely on force majeure if the situation in question arose after Splash Design was to have made the delivery.
3.7 A composite estimate does not oblige Splash Design to deliver part of the items included in the offer or quotation for the corresponding part of the quoted price.
3.8 If Splash Design requires information from the Buyer within the context of the execution of the agreement, the delivery period will only commence once the Buyer has furnished Splash Design with that information.
3.9 The Buyer is not permitted to (re)sell Splash Design’s products on third parties’ online platforms, including, but not limited to, e-Bay, Amazon, Marktplaats and Kapaaza.
ARTICLE 4 : INSPECTION AND COMPLAINTS
4.1 The Buyer is obliged to check the products supplied by Splash Design on delivery. Complaints pertaining to faults related to the supplied products should be reported in writing to Splash Design within 24 (in words: twenty-four) hours at the latest of the receipt of the products; if the Buyer fails to do so, the Buyer is assumed to have accepted the products.
4.2 If Splash Design deems a complaint to be well-founded and Splash Design is responsible for the non-conformance of, or damage to, the products, Splash Design will either replace the supplied products or credit (part of) the sale price paid by the Buyer to the Buyer and recall the delivered products, which ever Splash Design decides. Splash Design does not have any other obligation or liability to the Buyer with respect to non-conformance of products other than specified in the previous sentence.
4.3 Splash Design is entitled to conduct its own examination of the nature, scope and cause of any reported fault, during which the Buyer is obliged to give its full cooperation; if the Buyer fails to do, the Buyer shall not be able to enforce any claims on Splash Design in the matter of the reported faults.
4.4 Lodging a complaint does not release the Buyer from its payment obligation as referred to in Article 5.
4.5 Slight variations in quality, quantity, dimensions, colour, size, etc. are not grounds for complaint.
ARTICLE 5 : PAYMENTS
5.1 Splash Design shall send the Buyer an itemised invoice in writing, by email or by letter, on the date of the delivery or afterwards. The Buyer shall pay the invoice within 10 (in words: ten) days of the date on the invoice, unless it has been explicitly agreed otherwise. Payments shall always be made without any discount, settlement or suspension by the Buyer on any grounds.
5.2 The currency of the payment is Euros, unless it has been explicitly agreed otherwise.
5.3 Splash Design is always entitled to request full or partial payment in advance for each (partial) delivery or to request that the Buyer provides security to the amount of the price due to Splash Design to Splash Design’s satisfaction, e.g. by means of a bank guarantee. If Splash Design has well-founded fears that the Buyer will not meet the Buyer’s financial obligations and the Buyer refuses to provide (additional) security, Splash Design is entitled to suspend the execution of the order, without prejudice to Splash Design’s statutory right to suspend performance. Splash Design is also entitled to apply an order limit.
5.4 If the Buyer fails to pay any amount due to Splash Design, or if the payment is overdue, the Buyer shall be in default by operation of law merely because the applicable payment period has expired, without any warning or default notice being required, and Splash Design is entitled to increase the overdue amount with default interest of 2 % per month and the statutory commercial interest pursuant to Section 6:119a of the Dutch Civil Code, to be calculated as from the date of the invoice to the time of full settlement. The interest is calculated by increasing the overdue amount after each month with the interest owed for that period.
5.5 If the Buyer has not paid an invoice by the due date, Splash Design is entitled to refuse any further delivery of products until the payment has been made in full.
5.6 All payments received are first reconciled with the interest and (extrajudicial) costs on any outstanding invoices, after which the remainder is deducted from the oldest outstanding invoice for products supplied.
5.7 Splash Design is always entitled to settle Splash Design’s obligations to the Buyer, partially or in full, with any current or future receivables Splash Design has, or shall have, against the Buyer at any time, whether these are due and payable, conditional or time-bound or otherwise.
5.8 If the Buyer is in default, Splash Design may claim compensation for the extrajudicial (collection) costs; those costs, in that case, as a departure from Section 6:96, paragraph 4, of the Dutch Civil Code, and as a departure from the Extrajudicial Collection Costs (Fees) Decree, are already fixed at an amount equalling 15 % of the total outstanding principal sum with a lower limit of € 75.00 (in words: seventy-five Euros) for each invoice that remains partially or fully unpaid.
ARTICLE 6 : GUARANTEES & LIABILITY
6.1 Splash Design guarantees that the supplied products do not contain any serious faults at the time of their delivery. Splash Design shall not provide any other, implicit or explicit, guarantee for the products.
6.2 If the supplied products do not comply with the guarantee specified in Article 6.1, the Buyer shall return the products within a reasonable period of their receipt, or, if returning them is not reasonably possible, after the Buyer’s written notice of the fault, Splash Design shall replace them or arrange their repair, which ever Splash Design decides. Products that have been wrongly ordered or delivered can only be returned if the Buyer notifies Splash Design by email within a reasonable period after the receipt of the wrong order or delivery and Splash Design has given its written permission for the return. Returns, both in relation to the guarantee specified in Article 6.1 and wrong orders or deliveries, may only be made if (i) they are submitted via web/RMA and (ii) if they are sent carriage paid. The Buyer bears the costs and risks of return shipments.
6.3 The guarantee described in this matter does not apply if the fault arose as a consequence of improper or spurious use or if, without Splash Design’s written consent, the Buyer, or third parties, have made changes, or attempted to make changes, to the item or have used it for purposes for which the item is not intended.
6.4 If the guarantee given by Splash Design concerns an item that was produced by a third party, the guarantee is limited to the guarantee issued by the manufacturer of the item.
6.5 The right of claim by reason of a fault lapses after a month after the written notice of default, containing the reasons, has expired. The legal action by reason of a fault for which Splash Design may be held liable under the terms of this Article is not allowable if it is initiated, insofar nothing else has been agreed, later than 6 (in words: six) months as from the day on which the agreement ended by delivery, termination or cancellation.
6.6 Splash Design is not liable for any direct or indirect damage or loss incurred by the Buyer, explicitly including but not limited to, direct trading loss, loss of profit, consequential loss, personal injury, all other forms of financial loss and all possible claims of third parties, except in the event of intent or wilful recklessness on the part of Splash Design.
6.7 Splash Design can only be held liable for losses that are not covered by the Buyer’s insurance. If, and insofar, the Buyer has insured any risk connected to the agreement, the Buyer is obliged to claim any damage covered by that insurance and to indemnify Splash Design from recovery claims from the insurance company.
6.8 In all cases, Splash Design’s liability is limited to the net invoice value of the supplied products through which, or in connection with which, damage was caused or, if the damage is covered by any insurance policy of Splash Design, to a maximum of the amount that is actually paid out to Splash Design by the relevant insurance company in the case concerned.
6.9 The Buyer must notify Splash Design in writing of damage that the Buyer incurred at the earliest opportunity and in any event within 2 (in words: two) weeks of the occurrence or detection of the damage. Damage that is not reported within this term does not qualify for compensation. In any event, any claim of the Buyer against Splash Design, except claims explicitly accepted by Splash Design, shall lapse on the expiration of a 12 (in words: twelve) month period after it arises.
6.10 The Buyer indemnifies Splash Design against claims from third parties related to intellectual property rights to the information or materials provided by the Buyer that are used for the execution of the Agreement. If the Buyer provides Splash Design with electronic files or software, etc., the Buyer guarantees Splash Design that the information carriers, electronic files or software are free of viruses and other defects.
ARTICLE 7 : CANCELLATION, SUSPENSION & TERMINATION
7.1 Without prejudice to its statutory powers, Splash Design has the right to suspend execution of the agreement or to cancel the agreement, partially or in full, without notice of default or the intervention of a court and without any obligation to pay compensation for damage or guarantee commitments, if the Buyer fails to comply with any obligation pursuant to the agreement concluded with Splash Design or these General Terms and Conditions, or fails to do so properly or in a timely manner, if there are serious doubts concerning whether the Buyer is able to meet its contractual obligations towards Splash Design or if the Buyer is declared bankrupt or a petition for liquidation of the Buyer’s business has been filed, the Buyer is granted a moratorium on payments or is dissolved or wound up.
7.2 The Buyer is not permitted to exchange products of which the Buyer has taken delivery unless it has been explicitly otherwise agreed in writing.
7.3 The provisions of these General Terms and Conditions remain fully in effect in the event of termination of the agreement.
7.4 Back-order deliveries shall be delivered carriage paid if the joint delivery value is at least € 180.00, not including VAT. If the amount is lower, delivery will not automatically take place. In such cases, the Buyer must wait until the next order.
7.5 Splash Design is always permitted to cancel deliveries, both from stock and as back orders.
ARTICLE 8 : RETENTION OF TITLE
8.1 All items delivered by Splash Design , including any designs, sketches, drawings, films, software, (electronic) files, etc. remain the property of Splash Design until the Buyer has fulfilled all following obligations arising from the agreements concluded with Splash Design.
8.2 The Buyer is not authorised to pledge the items subject to retention of title nor to encumber them in any other way.
8.3 If third parties seize the items subject to retention of title or wish to attach or exercise rights to them, the Buyer is obliged to notify Splash Design as soon as may reasonably be expected of the Buyer.
8.4 The Buyer undertakes to adequately insure the items delivered subject to retention of title, and to keep them insured against fire, damage by explosion, water damage and against theft and to allow inspection of the policy papers for the insurance at the first request.
8.5 Items delivered by Splash Design that are subject to retention of title under the terms of Article 8.1 may only be resold within the context of normal business operations and may never be used as a means of payment.
8.6 The Buyer hereby gives its unconditional consent in advance to Splash Design, or to third parties appointed by Splash Design, to enter all those places where Splash Design’s property is located and to return with those items in the event that Splash Design wishes to exercise Splash Design’s property rights specified in this Article.
ARTICLE 9 : INTELLECTUAL PROPERTY RIGHTS
9.1 Splash Design is the party entitled to copyrights and other intellectual property rights with respect to all materials made, and to be made, by Splash Design, including, but not limited to, all products offered by Splash Design, with the exception of products that Splash Design distributes (hereinafter called: “the Materials”). Splash Design grants the Buyer the non-exclusive, non-transferable right to use the Materials only for the purpose of promoting the sale of the products acquired from, and to be acquired from, Splash Design. The Buyer is not permitted to makes changes to the Materials, including translations of the Materials.
9.2 The Buyer is always obliged to return the Materials made available by Splash Design to Splash Design at the first request. The right referred to in Article 9.1 to the use of the Materials shall, in any case, end by operation of law on the first day after six months have expired after the last order of products from Splash Design placed by the Buyer without any new order for those products having been placed.
ARTICLE 10 : CONFIDENTIALITY
10.1 The Buyer is obliged to maintain confidentiality with respect to all confidential information the Buyer acquires within the context of the agreement from Splash Design or from another source. Information is regarded as confidential if Splash Design informs the Buyer that it is confidential or if it follows from the nature of the information. The following information is always deemed confidential: recommended retail prices, the extent of a discount negotiated with a Buyer and the volume of Splash Design’s stock.
10.2 If the Buyer does not meet, or fails to meet adequately, the obligations arising from Article 10.1 and still fails to comply with aforesaid obligations 14 (in words: fourteen) days of being given notice of default by Splash Design, the Buyer shall forfeit a penalty, immediately due and payable, to Splash Design of € 4,000.00 for each breach and of € 1,500.00 for every day that the breach continued and still continues, all of which is without prejudice to Splash Design’s right to recover the actual damage suffered which arose from the failure to comply, from the Buyer, in addition to the penalty, and/or to demand fulfilment of the agreement.
10.3 If, on the grounds of a statutory provision or a court ruling, Splash Design is obliged to disclose confidential information belonging to the Buyer to third parties appointed by law or by the competent court, and Splash Design cannot rely on a right to refuse to give evidence, either acknowledged or permitted by law or the competent court, Splash Design is not obliged to pay compensation or damages and the Buyer is not entitled to terminate the agreement on the grounds of any damage that might have consequently arisen.
ARTICLE 11 : PROHIBITION OF THE ACQUISITION OF STAFF AND PERSONS ON SECONDMENT
11.1 The Buyer is not permitted to employ Splash Design’s employees who were involved in the execution of the agreement, or arrange for them to work otherwise for the Buyer, for the term of the agreement and twelve months after its termination.
11.2 In the event of secondment, the Buyer is not permitted to employ the seconded persons, or arrange for them to work otherwise for the Buyer, for the term of the secondment and twelve months immediately after its termination.
11.3 The Buyer shall forfeit a penalty that is immediately due and payable to the sum of 3 (in words: three) annual salaries, gross, of the relevant employee or seconded person if the obligation specified in paragraphs 1 and 2 is violated, without prejudice to Splash Design’s right to claim compensation for damages pursuant to the law.
ARTICLE 12 : CHOICE OF LAW AND DISPUTES
12.1 All agreements, legal relationships and work executed by Splash Design for the Buyer is governed solely by Dutch law, unless explicitly agreed otherwise. The application of the United Nations Convention on Contracts for the International Sale of Goods is explicitly ruled out.
12.2 Any disputes that may arise in relation to, or as a result of, the agreement and/or the General Terms and Conditions applicable to it shall be submitted to the competent Court in the Netherlands in the court district in which Splash Design has its registered office.