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General Terms & Conditions
With every use of HCMEWEBSHOP.COM
(hereinafter: the Shop), these General Terms and Conditions from The
Merchandise Company B.V. (hereinafter TMC) applies. By placing an order at the
Shop, you agree with these General Terms and Conditions. These Terms and Conditions
shall be sent to the Customer at no charge upon first request.
1. Definitions
1.1. In these general Terms and Conditions
of sale and delivery the following terms are defined as:
a. Customer : the natural person who acts as buyer of goods or services, but is not
acting in the course of a profession or a business;
b. Distant communication technology : a means to reach agreements at a
distance without simultaneous personal presence of the parties;
c. Service(s) : all work that TMC provides for or for the
benefit of the Customer, whether in conjunction with delivery of Products or
not;
d. Direct
e. Defect(s) : every deviation of a Product of Service from the Specification and
each incorrect functioning of a Product of incorrectly executed Service;
f. Delivery time : the time frame determined in the Agreement
within which the Product must be delivered or the Service must be executed;
g. Order : each order of Products and/or Services by a Customer, via any form of
communication, as well as each purchase of Products and/or Services via Direct
Sale, is considered to be an Order subject to the applicability of the Terms
and Conditions;
h. Agreement : each agreement that is reached between TMC and Customer, each
amendment or attachment to the agreement, and all (legal) actions required for
the preparation and/or execution of the agreement;
i. Product(s) : item(s) which the Customer undertakes to
purchase from TMC;
j. Specification : the description(s) drawn up and/or expressly
approved by TMC of the Products and Services supplied by TMC and listed in the
Order or Agreement. In default of such a Specification, the description of what
has been expressly agreed upon by the parties or the situation that is most common
in the industry as a whole;
k. Distant Sale : a system organised by TMC for sales or
service provision at a distance, including telephone and Internet, in which up
to and including the conclusion of an Agreement one or more technique for
distant communication has been utilised;
l. TMC : the private limited liability company The Merchandise Company located
at 1079 VZ (Hunzestraat 131) in Amsterdam, registered in the Chamber of
Commerce under number 34304948, phone 0031 (0)888620000, VAT NL8196.00.362.B01
, as well as all legal successors under general or
special title;
m. Terms and Conditions : the latest version of these general Terms
and Conditions of sale and delivery for customers. These Terms and Conditions
shall be sent to the Customer at no charge upon first request;
n. Reconsideration period : The legal term within which the Customer may
exercise his/her right of withdrawal.
2. Applicability
and voidability
2.1. These
Terms and Conditions are applicable on each estimate, offer, agreement and/or
sale of Products that TMC has declared these Conditions to be applicable
to, regardless of the communication means utilised, insofar that these Terms
and Conditions have not been expressly contradicted by both parties and in
writing.
2.2. The
Terms and Conditions in question are also applicable to all agreements with the
Customer for which the execution is dependent upon third parties.
2.3. The
“TMC General Terms and Conditions of Sale and Delivery
for Businesses”
are applicable to all (legal) actions between TMC and parties acting in
the course of a profession or a business.
2.4. If
any term of these Terms and Conditions at any time becomes void or cancelled,
in full or in part, then the remaining terms of these Terms and Conditions
remain wholly applicable.TMC and the Customer will then discuss new terms to
replace those voided or cancelled, taking into consideration the purpose and
intent of the void and/or cancelled terms.
2.5. If
these Terms and Conditions are at any time translated into another language,
the English-language text will be considered leading in the event of a
discrepancy.
3. Offer and acceptance
3.1. An
Agreement can be made via Distant Sale or via Direct Sale.
3.2. Each
estimate and offer is without obligation and should be considered as a whole,
unless expressly stated to the contrary by TMC. An estimate or offer expires if
the Product for which the estimate or offer was intended is no longer
available.
3.3. TMC
accepts an Order at the moment that it has been confirmed in writing by TMC.
3.4. If
the Customer’s Order deviates from the offer made in the estimate, then TMC is
not responsible for the Agreement unless TMC indicates to the contrary.
3.5. TMC
reserves the right to refuse orders without further notification. In the event
of such a refusal, TMC will inform the customer within seven (7) working days
after the placement of the order.
3.6. If
for any circumstance, including the nature, size or need for haste to fill the
order, no order confirmation has been sent, the TMC invoice should be
considered confirmation of the order.
3.7. Each
Agreement can be cancelled by TMC on the condition that the Customer, in the
exclusive opinion of TMC, has insufficient credit to meet the terms of the
Agreement.
4. Reconsideration Period
4.1. In
the event of a Distant Sale, the offer is subject to a Reconsideration Period
of seven (7) working days, starting on the day of receipt of the Product(s)
ordered by or on behalf of the Customer.
4.2. During
the Reconsideration Period, the Customer has the right of withdrawal, in which
he has the opportunity to return the Product(s) received or to state his
intention not to make use of the Service(s) offered within ten (10) working
days after delivery, without any obligation on his part other than the payment
of the direct shipping costs. The product must be returned in the original
packaging (including accessories and documentation) and in new condition. In
the cases where Service(s) are (also) offered, the right of withdrawal will be
considered to be a Reconsideration Period, upon which all of the terms in these
Terms and Conditions pertaining to the Reconsideration Period are considered to
remain unimpaired.
4.3. If
the Products have been used, encumbered or in any way damaged, the right of
termination in the meaning of this article is annulled. With consideration for
the terms of the previous sentence, TMC will confirm the termination of the
purchase after receipt and inspection of the returned Product(s) by return post
and will ensure that the complete purchase amount will be returned to the
Customer within thirty (30) days after receipt of the complete return shipment.
4.4. Limitations
and exclusions of the Reconsideration Period will be clearly listed by TMC in
accordance with the provisions of Article 7:46d of the Dutch Civil Code (BW).
4.5. The
Customer may only invoke the Reconsideration Period in the manner indicated by
TMC during the purchase and/or delivery of the Product or Service.
5. Prices and Payment
5.1. Unless
otherwise specified, all prices are expressed in Euros including VAT and other
government-required taxes, as well as any travel, shipping and administrative
costs indicated in the Agreement, unless otherwise specified.
5.2. If
the Customer and TMC agree to a price, TMC retains the right to raise the
price. If this price increase occurs within three (3) months following the date
of Agreement, the Customer may terminate the Agreement. If this price increase
occurs more than three months after the date of the Agreement, then the
Customer may terminate the agreement if the price increase is greater than 5%.
5.3. TMC
is not liable for wrong price listings or other factual errors in the offer
and/or the estimate, on the TMC website, in advertisements, in publications, in
order confirmation, in invoices or in other documents if the Customer may reasonably
understand or could have understood that the error was the result of a mistake
or clerical error.
5.4. In
the event of a Distant Sale account, all payments must be made with credit
card. It is up to TMC to decide to deliver on account without given any reason
to Customer to refuse to deliver on account. If a Customer is approved for
buying on account all invoices should be paid within fourteen (14) days after
the invoice date, without any right of discount, deduction or deferment, in the
manner indicated by TMC and in the currency on the invoice, unless otherwise
stated in the Agreement.
5.5. If
the Customer has not paid the invoice within nine (9) days after due date, the
Customer will be considered legally in default and from that moment the Customer
will be charged interest in accordance with the legal interest rate as
indicated in Article 6:119 BW. The interest over the amount due will be
calculated from the moment that the Customer is in default until the moment of
the payment of the full amount due.
5.6. If,
after the end of the term listed in Article 5 paragraph 5, TMC is required to
take collection measures, then the Customer is responsible for all costs.
However, if TMC assumes collection costs that are higher than reasonably
necessary, then the Customer is only responsible for the actual collection
costs. Any legal or executive costs will also be charged to the Customer. Legal
costs include attorney at law and local counsel fees. The Customer is also
responsible for interest over the collection costs due.
5.7. In
the event of bankruptcy or suspension of payments by the Customer, or an
application thereto, the amounts due to TMC and the obligations of the Customer
towards TMC are immediately due and payable.
5.8. In
the event of a Direct Sale, the payment must be in cash or with credit card
paid in full at the place of delivery of the Product(s) to the Customer.
6. Delivery
6.1. In
the event of a Distant Sale, the Products available in stock will be shipped
within two (2) Dutch working days after the receipt of the order. TMC may
charge shipping charges for shipping the Products ordered. The Products will be
delivered to the permanent shipping address made known to TMC, and will be
released to the natural person present at that address. When Products cannot be
delivered from stock, TMC will inform the Customer in the written confirmation
of his or her order and provide an indication of the expected delivery term.
6.2. TMC’s
delivery requirement is considered to be fulfilled as soon as the Products
provided by TMC have been offered to the Customer one time, subject to proof of
the contrary. In the event of home delivery, the report of the transporter
regarding the refusal to accept or the absence of the Customer serves as full
proof of an offer to deliver, subject to proof of the contrary.
6.3. Products
which have not been collected by the Customer remain available to the Customer
and will be stored by TMC at the cost and risk of the Customer.
6.4. In the event of a Direct Sale, the delivery occurs by supplying the
Customer with the item after payment of the purchase price. Terms 6.2 and 6.3
are not applicable to Direct Sales.
7. Delivery period
7.1. The
delivery period will be given as an estimate and should never be considered as
a strict deadline.
7.2. The
delivery period commences after acceptance of the Order by TMC, after which TMC
will aim to deliver the Order within ten (10) working days.
7.3. If
TMC is not able to comply with this delivery period due to circumstances beyond
its control, TMC will not be considered in default and is not liable for any
damages to the Customer.
7.4. In the event of a failure to meet the deadline for delivery which is not
due to circumstances beyond TMC’s control, the Customer may claim that TMC is
in default and claim compensation for damages, with regard for the following
rules and limitations:
a. the
compensation due by TMC shall be determined as the amount of damages directly
suffered by the Customer due to the delayed delivery, insofar as this can be
sufficiently demonstrated, and;
b. the
total compensation owed by TMC shall not exceed the price agreed upon in the
Order concerned.
8. Guarantees
8.1. TMC
guarantees that the Products delivered or to be delivered satisfy all customary
requirements and norms that can be reasonably expected at the moment of
delivery, and for which they are customarily used in the
8.2. The
guarantee mentioned in paragraph 1 is valid for a period of six (6) months
after delivery, unless the nature of the Product delivered determines otherwise
or unless the parties have agreed to other terms. If the guarantee issued by
TMC applies to a Product or Products produced by a third party, then the
guarantee is limited to the terms set by the producer of the Product or
Products. Upon the expiration of the guarantee period, all costs for repair or
replacement, including administration, delivery and call-out fees will be
charged to the Customer.
8.3. TMC
will provide the Customer with a written proof of guarantee. In the absence of
this proof, the proof of purchase for a Direct Sale and the invoice for a
Distant Sale will function as proof of guarantee.
8.4. If
the Products delivered/to be delivered do not meet the terms as intended in
paragraph 1, TMC will replace or repair the Product within a reasonable time
frame after receipt of the item, or if return of the item is not reasonably
practicable, after written notification of the Defect by the Customer. In the
event of replacement, the Customer commits to return the Product to be replaced
to TMC and to transfer ownership of that Product to TMC.
8.5. Each
form of guarantee becomes null and void if the Defect is the result of improper
or injudicious use of the Product or, if applicable and without the written
permission of TMC, use after the use-by date, incorrect maintenance by the
Customer or when the Customer or third parties (attempt to) make changes to the
Product or attach other items that should not be attached, or if the Products
have been processed or manipulated in a manner other than specified. The
Customer may not make a claim to the guarantee if the Defect is the result of
conditions on which TMC cannot exercise influence, including weather
circumstances (including but not limited to extreme rainfall or temperatures)
etc.
8.6. If
the Products delivered by TMC are defective, the liability of TMC towards the
Customer is limited to the terms of this Article.
8.7. Without
prejudice to the aforementioned, TMC is not liable for damages resulting from
intention and/or negligence and/or imputable acts or omissions or improper use
by the Customer.
8.8. These
guarantee conditions do not affect the legal rights of the Customer.
9. Claims
9.1. The
Customer must inspect the Products delivered for any potential Defects
immediately after receipt, and if any are found, to report these to TMC in
writing as quickly as possible, not later than 24 hours after the delivery of
the Products, upon forfeiture of rights.
9.2. Not-visible
Defects must be reported in writing to TMC by the Customer within a reasonable
time frame, not more than two (2) months after the discovery of the Defect,
upon forfeiture of rights.
9.3. Claims
regarding the invoice amount should be made known to TMC in writing within
fourteen (14) days of the date of the invoice concerned.
9.4. The
burden of proof of a timely submission as well as the accuracy of the claim is
the responsibility of the Customer. The Customer is required to provide all
assistance to TMC in determining the nature of the Defect(s).
9.5. Insignificant
and/or industry-customary deviations in quality, colour, size, etc. may not
serve as grounds for a claim.
9.6. If
a complaint regarding the abovementioned terms is found to be justified, then
TMC must replace the Products without extra costs. The Customer may claim no
rights to supplementary compensation.
9.7. If
the Customer has not submitted a claim within the time frame mentioned in the
paragraphs above, or if the Customer remains in possession of the Product
delivered, he is considered to have accepted the delivery and is therefore
liable for the purchase price, without prejudice to the rights and authorities
granted to him by law and/or in this Agreement.
9.8. If
the Customer is entitled to return a Product to TMC in accordance with this
Article, TMC will ensure that the amount paid by the Customer will be deposited
into the bank account of the Customer within thirty (30) days of receipt of the
returned product. The Customer must contact the TMC customer service department
at telephone number +31 (0)88 - 862 00 00 on working days between 08:30 and
17:00 hours in order for TMC to deposit the amount paid.
10. Retention of title
10.1. All Products delivered by TMC in the context of the Agreement
remain the property of TMC, and/or in some cases a third party, until the
Customer has fulfilled all obligations pertaining to the Agreement with TMC.
11. Transfer of risk
11.1. The risk of loss, damage or depreciation is transferred to the
Customer at the moment of delivery, as should occur on grounds of these Terms
and Conditions.
12. Termination
12.1. TMC is authorised to terminate or suspend the fulfilment of the
Agreement if:
a. the
Customer does not or does not fully or timely comply with the obligations
listed in the Agreement;
b. after
making the Agreement, TMC learns of circumstances which provide grounds to
suspect that the Customer will not comply with the obligations. In the event
that good grounds exist to suspect that the Customer will not or will not fully
comply with the Agreement, termination is only permissible insofar as it is
justified by the shortcoming;
c. the
Customer has been judged legally incompetent by a court or has been deprived of
his freedom;
d. the
data provided to TMC by the Customer do not correspond to the actual situation.
12.2. If the Agreement is terminated, then the amounts owed to TMC by the
Customer are immediately due and payable. If TMC suspends fulfilment of the
Agreement, it retains all rights permitted by law and the Agreement.
12.3. TMC retains the right to claim compensation.
13. Force Majeure
13.1. The parties are not obliged to comply with any obligation if they
are hindered by circumstances that do not result from fault, or by law, legal
action, or generally accepted practice.If a shortcoming in compliance with the
contractual obligation is the result of force majeure on the side of one of the
parties, the other party is allowed to terminate the Agreement. The party
claiming force majeure is on the grounds of Article 6:78 BW only liable for the
damages of the other if and insofar they, due to the shortcoming, enjoy an
advantage that they would not have in the event of proper compliance, to the
amount of this value.
13.2. Force majeure is considered to be, in addition to that which in law
and jurisprudence is considered to be, all external causes, foreseen or
unforeseen, on which TMC cannot exercise influence, but through which TMC is
not able to fulfil its obligations. This includes, but is not limited to,
strikes in the TMC company, as well as suppliers who do not comply with their
obligations to TMC.
13.3. TMC retains the right to claim force majeure, if the circumstances
that hinder further compliance initiate after TMC should have complied with its
obligations.
13.4. The parties may suspend the Agreement for as long as the force
majeure continues. If this period lasts longer than two (2) months, each of the
parties may terminate the Agreement, without being liable to compensation to
the other party.
13.5. If TMC has partially complied with or can still comply with its
obligations as per the Agreement at the time of the force majeure, and if an
independent value can be attributed to the part provided or to be provided, TMC
is entitled to invoice the part provided or to be provided separately. The
Customer is required to pay this invoice as if it were a separate agreement.
14. Indemnification
14.1. The Customer indemnifies TMC from any claims by
third parties who suffer damages in connection to the execution of the
Agreement, and in which the cause is not attributable to TMC.
14.2. If TMC is approached by third parties, then the Customer is
required to support TMC both out of court and in court and to do all that can
be expected without hesitation. If the Customer fails to take adequate
measures, then TMC is entitled to do so without being in default. All costs and
damages on the side of TMC and third parties will be at the risk and cost of
the Customer.
15. Intellectual Property
15.1. Unless otherwise specified in writing, the entire copyrights and
all other rights of intellectual and industrial property relating to Products
and/or Services provided by TMC, including brand rights, model rights, patent
rights, sui generis, database rights, etc. are exclusive (legally,
intellectually and industrially) property of TMC and/or its suppliers.
15.2. The parties are required to take sufficient measures to guarantee
confidentiality with regard to each other’s confidential data with which they
become acquainted in the course of executing the Agreement.
16. Protecting Customer Data
16.1. TMC collects, uses and transports personal data related to the
Customer in compliance with applicable national and European legislation and
regulations.
16.2. TMC respects the privacy of the Customer and is the only owner of
information gathered via the TMC website, unless otherwise specified.
Information provided by the Customer will not be sold, shared or rented to
third parties in any other manner than that stated in the website’s privacy
declaration.
16.3. TMC is entitled to publish information about a visitor if there is
reason to assume that publication of the information is necessary to identify,
contact or open a court case against a person who, whether intentional or not,
injures or damages the rights and properties of TMC, other users of the website
or others who may sustain damages. TMC is entitled to provide information about
users if it is in good faith that the law requires it.
17. Applicable law and disputes
17.1. Dutch law is applicable to all legal relations between TMC and the
Customer, even if the relations are in whole or in part to be executed abroad,
or if the Customer resides abroad. The applicability of the Vienna Convention
is expressly excluded.
17.2. In the event of a dispute between the parties, the exclusive
authorised court to hear the dispute is the district court of
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