Terms and conditions - Beppycup.ch
General terms and conditions of sale and delivery of Willems Winkels BV also trading under the names Asha International, Beppy, Condommessage, Promocondoom, Fotocondoom, Condoomkoerier, hereinafter referred to as ‘Asha International’.
Article 1. General terms and conditions
1.1. All offers and deliveries are exclusively subject to the terms and conditions of sale and delivery (‘general terms and conditions’) of Asha International. These terms and conditions can also be found online at www.asha.nl.
1.2. The applicability of the buyer’s general terms and conditions is hereby expressly rejected.
1.3. If any provision of these general terms and conditions is null and void or voidable, the provision in question shall be replaced by a provision that is as close as possible to the original provision. The other provisions of these general terms and conditions will remain in full force and effect.
1.4. Insofar as these general terms and conditions have also been drawn up in a language other than Dutch, the Dutch text shall always prevail.
Article 2. Offers and quotations
2.1. All quotations and offers of Asha International are without obligation, unless a term for acceptance has been set in the offer. In that case, an offer or quotation shall lapse after the period in question.
2.2. The agreement is concluded by Asha International sending a written (by post and/or e-mail/fax) order confirmation, or the actual performance of the agreement by Asha International. In the former case, the order confirmation is deemed to reflect the correct relations between the parties and the parties are bound by the content of the order confirmation.
2.3. Offers and promises by representatives and/or buyers of Asha International are only binding if confirmed in writing by Asha International.
2.4. Images, catalogues, online presentations, samples and drawings give a general presentation of any articles offered by Asha International. The dimensions, weights, color schemes or technical data (in the broadest sense of the word) included in an offer are only approximations, unless and insofar as specific aspects are explicitly guaranteed in writing by Asha International. Normal deviations and variations accepted within the industry are allowed. Colors are related to CMYK.
2.5. The prices stated in an offer or quotation are exclusive of VAT and other government levies, unless expressly stated otherwise in writing. Unless otherwise indicated in writing by Asha International, the prices are Ex Works Incoterms 2020.
2.6. A compound quotation does not oblige Asha International to perform part of the assignment for a corresponding part of the quoted price. Offers or quotations do not automatically apply to future agreements. Any adjustment costs shall be EUR 55.00 per item ordered excluding VAT, unless stated otherwise in writing.
2.7. Product-specific regulations, including rules arising from ISO standards and CE markings, are deemed to have been accepted by the buyer and form an integral part of these terms and conditions.
2.8. If an order is cancelled, the actual costs incurred will be charged, with a minimum of EUR 90.00 in the case of an order placed with Condommessage.
2.9. Asha International can refuse an order without giving reasons.
Article 3. Delivery
3.1. A delivery term is never a deadline. Asha International will always try to meet a given delivery time as much as possible. Exceeding the delivery time does not entitle the buyer to dissolve the agreement in whole or in part, nor does the buyer have the right to cancel the order or refuse to accept delivery. Asha International is entitled to deliver and invoice in parts.
3.2. If Asha International makes a design at the request of the buyer, the delivery period will only commence after the buyer has confirmed to Asha International that the design is approved. Deviations in the (final) result with respect to the design are no reason for rejection, discount, compensation or dissolution of the agreement.
3.3. Failure to fulfil an obligation to pay on time will suspend the delivery obligation, as well as failure to deliver the necessary data and usable designs on time or in a suitable manner.
3.4. If the buyer is in default of payment, Asha International will not be obliged to make any further delivery and Asha International will be entitled to dissolve the agreement in whole or in part without judicial intervention while retaining the buyer’s obligation to indemnify Asha International.
3.5. Asha International is entitled to charge the buyer for more or less deliveries of a maximum of 10% of the quantity ordered.
3.6. Unless agreed otherwise in writing, Asha International is free to determine the mode of transport.
3.7. The goods to be delivered will at all times be transported at the buyer’s risk. The buyer will be responsible for unloading the delivered goods.
3.8. Asha International is entitled to increase the price after the conclusion of the agreement in accordance with the increase in freight costs observed in the interim.
3.9. Unless otherwise agreed in writing, the place of delivery will be the (main) place of business of the buyer.
Article 4. Information and data
4.1. General indications and descriptions of products delivered by Asha International, as included in brochures, lists and the like, are only intended as general information and not as an indication of quality or a form of guarantee.
4.2. The buyer warrants that the information provided by it is correct and complete and legally permissible for reproduction and/or publication. Buyer hereby indemnifies Asha International against any claims and/or damages due to infringement of intellectual property rights, trade names and domain names of third parties.
Article 5. Retention of title
5.1. All products delivered by Asha International within the framework of the agreement will remain the property of Asha International until the purchaser has paid all claims of Asha – including in any case those referred to in section 3:92(2) of the Dutch Civil Code – which Asha International has or will acquire.
5.2. Products delivered by Asha International may not be resold by the purchaser or used as a means of payment other than in the normal course of its business. The buyer is not authorized to pledge or otherwise encumber the products covered by the retention of title.
5.3. If third parties seize the products delivered subject to retention of title or wish to establish or assert a right to them, the buyer is obliged to inform Asha International thereof immediately (in writing).
5.4. In the event that Asha International wishes to exercise its property rights referred to in this clause, the purchaser gives its unconditional and irrevocable consent in advance to Asha International and third parties to be appointed by Asha International to enter all those places where Asha International’s property is located and to repossess those products.
Article 6. Payment
6.1. Payment must be made at all times without any discount and/or settlement. The invoice term is a deadline. If the Buyer fails to pay within the invoice term, it shall be in default by operation of law, without further notice of default being required. In that case, the total claim of Asha International, including invoices of which the due date has not yet expired, shall be immediately due and payable at once. Any discounts indicated will then be forfeited and the buyer will owe interest at a rate of 1% per month. Furthermore, the buyer will owe Asha International all costs, both judicial and extrajudicial, which Asha International has to incur in order to realise that its claim is paid. The extrajudicial collection costs will be fixed at 15% of the outstanding amount, without a maximum and with a minimum of EUR 50.
6.2. Asha International will be entitled to have the payments made by the buyer first of all deducted from the (collection) costs, then from the interest that has fallen due and finally from the principal sum.
6.3. The buyer is not entitled to set off or suspend its obligations.
Article 7. Intellectual property rights
7.1. All intellectual or industrial property rights on all products delivered under the contract, with the exception of the graphical elements supplied by the buyer, shall belong exclusively to Asha International or its licensors or suppliers. To the extent that such a right can only be obtained by filing or registration, Asha International shall be exclusively authorised to do so. The purchaser is not permitted to reproduce or copy the works, models, (trade or domain) names or other protected objects or to infringe the intellectual property rights of Asha International or its licensors or suppliers in any other way.
7.2. The buyer will inform Asha International immediately if it detects infringements of the intellectual property rights or if third parties claim the intellectual property rights or claim that these infringe his/her rights. In case Asha International acts in respect of such (alleged) infringement, Buyer is obliged to cooperate and act in accordance with Asha International’s instructions.
7.3. The agreement does not include Asha International carrying out an investigation into the existence of third-party rights and possible forms of protection with respect to the logos, texts, graphic elements or other data and materials supplied by the Buyer. The buyer fully indemnifies Asha International against any claims and demands made by third parties with regard to logos, texts, graphic elements or other data and materials supplied by the buyer and also indemnifies Asha International against all costs incurred by it in connection with these claims and demands.
Article 8. Advertising
8.1. Asha International delivers in accordance with what is normal and customary in the trade of the case concerned. The buyer is obliged to examine the delivered goods (or have them examined) immediately at the time the products are made available to him. Any defects must be reported by the buyer in writing and received by Asha International within 7 days after discovery or after they could reasonably have been discovered. Purchaser must give Asha International the opportunity to investigate a complaint (or have it investigated).
8.2. If a defect is not complained about in time, buyer will no longer be entitled to repair, replacement or compensation and buyer must pay all costs incurred by Asha International. In all cases, the right to compensation lapses 12 months after the event from which the damage for which Asha International is liable directly or indirectly results.
8.3. If it is established that the product is defective and a timely complaint has been made in this respect, Asha International will, within a reasonable period of time, at its discretion, replace the defective product or arrange for repair of the defect or refund of the invoice amount to the buyer. In the event of replacement, the purchaser shall be obliged to return the replaced item to Asha International and to transfer ownership and possession thereof to Asha International, unless Asha International indicates otherwise in writing.
8.4. Any guarantee of Asha International does not apply if:
- i) Defects to goods are the result of improper use;
(ii) Goods are exposed to extraordinary circumstances;
(iii) Defects result from use contrary to the instructions for use;
- iv) the Purchaser or third parties engaged by the Purchaser have made changes and/or performed other work on the delivered goods without Asha International’s written consent.
8.5. Any claim on part of the goods delivered shall not suspend the payment obligation of the other goods delivered, unless otherwise required by law.
Article 9. Liability
9.1. If Asha International should be liable, this liability is limited to what is regulated in this article.
9.2. Asha International is only liable for direct damage.
9.3. Asha International is not liable for damage, of whatever nature, caused by Asha International using incorrect and/or incomplete and/or unlawful data provided by or on behalf of the buyer.
9.4. If Asha International is liable, that liability is limited as follows:
(i) the liability of Asha International, insofar as it is covered by its liability insurance, shall be limited to the amount of the payment made by its insurer increased by the excess.
(ii) if, in any case, the insurer fails to pay out or the damage is not covered by the insurance, the liability of Asha International shall be limited to the invoice value, or at least that part of the invoice to which the liability relates.
(iii) the foregoing limitations do not apply if the damage is due to intent or gross negligence.
- iv) Asha International shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings, damage due to business stagnation.
9.5. All rights of action and other powers that the buyer has against Asha International for whatever reason must be submitted in writing to Asha International within 6 months after the moment the buyer became aware or could reasonably have become aware of them, on pain of forfeiture.
9.6. The customer indemnifies Asha International against any claims of third parties who suffer damage in connection with the performance of the agreement, unless (and insofar) this damage is exclusively the result of intent or gross negligence on the part of Asha International or its managers.
9.7. Any liability for whatever reason of persons affiliated with Asha International, including in any case current and future managers and group companies, is excluded. All stipulations in these general terms and conditions are also stipulated for these persons and their legal successors under general title; this is an irrevocable third-party clause free of charge.
Article 10. Others
10.1. Asha International is entitled to use purchaser as a reference, without communicating the results of assignments to third parties.
10.2. In principle, the parties will not conclude a continuing performance agreement, unless they have expressly agreed to this and there is a written agreement to this effect. Asha International will at all times be entitled to terminate the agreement with due observance of a notice period of two months and without being obliged to pay any compensation, unless otherwise provided in a written agreement.
10.3. In the event of a recall, regardless of whether this is as a result of a request from legal authorities, authorities, on the own initiative of Asha International or another party, Buyer is obliged to cooperate and act in accordance with Asha International’s instructions. Asha International will reimburse Buyer’s demonstrable and reasonable costs, such as shipping and communication costs, with the exception of internal costs incurred in connection with the handling, such as labour costs.
Article 11. Applicable law and competent court
11.1. All legal relationships between Asha International and the buyer shall be exclusively governed by and construed in accordance with Dutch law. The applicability of the Vienna Sales Convention is expressly excluded.
11.2. Disputes and claims arising out of or in connection with this Agreement shall – subject to the exclusive jurisdiction of the District Court of The Hague regarding claims relating to certain Intellectual Property Rights (e.g. Community Design) – in the first instance be submitted to the District Court of Rotterdam. Asha International reserves the right to bring proceedings against the Purchaser before the court that would have jurisdiction in the absence of this choice of forum.