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Terms & conditions
Article 1: Definitions
- In these terms and conditions the seller means By Eva B.V. (trading as Milla, or Milla Amsterdam), having its registered office in Amsterdam, Chamber of Commerce number 57695466.
- In these terms and conditions the buyer means the seller's counterparty.
- The seller and buyer together are referred to as the parties.
- The agreement means the sales agreement between the parties.
Article 2: Applicability of Terms and Conditions
- These terms and conditions apply to all quotations, offers, agreements and supplies of services or goods by or on behalf of the seller.
- No deviation from these terms and conditions is possible unless expressly agreed in writing by the parties.
Article 3: Payment
- The full purchase price must be paid immediately in the shop. An advance payment may sometimes be required for reservations. In that case, the buyer will be given a receipt for the reservation and the advance payment.
- The buyer will be considered in default if payment is not made on time. If the buyer remains in default, the seller is entitled to suspend its obligations until payment has been duly made.
- If the buyer remains in default, the seller will institute collection proceedings. The buyer will be liable for the resulting costs. The costs of collection will be calculated on the basis of the Decree on extrajudicial collection costs (Besluit vergoeding voor buitengerechtelijke incassokosten).
- In the event of the buyer's liquidation, bankruptcy, attachment or an interim moratorium (surseance van betaling), the seller's claims against the buyer will become immediately due and payable.
- The agreed price remains payable if the buyer refuses to cooperate with the execution of the order by the seller.
Article 4: Offers, quotations and price
- The seller will not be bound by an offer, unless a period during which the offer will be available has been specified. If the offer is not accepted within that period, the offer will expire.
- Delivery times in quotations are indicative only and do not give the buyer the right to terminate or receive compensation if exceeded, unless the parties have expressly agreed otherwise in writing.
- Offers and quotations are not automatically applicable to repeat orders. The parties must expressly agree to this in writing.
- The price stated in offers, quotations and invoices consists of the purchase price including the VAT due and any other government levies.
Article 5: Right of withdrawal
- The consumer is entitled to terminate the agreement within 14 days of receipt of the order without giving any reason (right of withdrawal). This period commences from the moment the entire order has been received by the consumer.
- There is no right of withdrawal if the products are made to the consumer's specifications or are liable to expire rapidly.
- The consumer can use a withdrawal form provided by the seller. The seller must provide this to the buyer immediately at the buyer's request.
- During the cooling-off period the consumer should handle the product and the packaging with care. They should only unpack or use the product to the extent necessary to assess whether or not they wish to keep the product. If the consumer exercises the right of withdrawal, they must return the product unused and in its original condition, together with all its accessories and – if reasonably possible – in the original packaging to the seller, in accordance with the reasonable and clear instructions provided by the business.
Article 6: Amendment of the agreement
- If it appears in the course of carrying out the agreement that, for its proper execution the work to be performed must be changed or supplemented, the parties will consult with each other to amend the agreement accordingly in a timely fashion.
- If the parties agree to amend or supplement the agreement, this may affect the timing of its execution. The seller will notify the buyer as soon as possible of this.
- The seller will inform the purchaser in writing in advance if amending or supplementing the agreement will have financial and / or substantive consequences.
- If the parties have agreed on a fixed price, the seller will indicate to what extent amending or supplementing the agreement will result in this price being exceeded.
- Notwithstanding the provisions of the third paragraph of this article, the seller cannot charge any additional costs if it is responsible for the amendment or supplement.
Article 7: Completion and risk transfer
- Risk passes from the seller to the buyer on receipt of the goods by the buyer.
Article 8: Inspection and complaints
- The buyer must inspect the goods at the time of delivery, but in any event as soon as possible thereafter. In this regard the buyer should assess whether the quality and quantity of the delivered goods corresponds with what the parties have agreed, and in any event that quality and quantity accord with normal business standards.
- Complaints regarding damage, shortfalls or loss of delivered goods must be submitted to the seller in writing within 10 working days after delivery.
- If the complaint is upheld within the agreed term, the seller has the right either to repair or to re-supply, or to provide the buyer with a credit note for the appropriate part of the purchase price.
- The seller cannot be held responsible for minor differences and / or variations that are customary in the business sector as regards to quality, quantity, size or finish.
- Complaints relating to a particular product will not affect other products or parts covered by the same agreement.
- No complaints will be accepted once the goods have been processed by the buyer.
Article 9: Samples and models
- Samples or models shown or provided to the buyer are presumed to have been provided for indicative purposes only, without the delivered items having to correspond. The foregoing does not apply where the parties have expressly agreed that the delivered item will correspond.
- In the case of agreements relating to real estate, statements as to the surface area, or other dimensions and features, shall also be presumed to be for indicative purposes only, without the property having to respond.
Article 10: Delivery
- Delivery will be on an ex-factory / shop / warehouse basis. This means that the buyer will bear all the costs.
- The buyer is obliged to take delivery of the goods at the time that the seller delivers them or has them delivered to him, or at the time that the goods are made available to him pursuant to the agreement.
- If the buyer refuses to take delivery or does not provide the necessary information or instructions for delivery, the seller is entitled to store the goods at the risk and account of the buyer.
- The seller is entitled to charge for any delivery costs.
- If the seller requires information from the buyer in order to carry out the agreement, the delivery period will commence once the buyer has provided this to the seller.
- A delivery period stated by the seller is indicative only. This is never a strict deadline. If the period is exceeded, the buyer must give written notice of default to the seller.
- The seller is entitled to deliver items in parts, unless the parties have agreed otherwise in writing or if partial delivery makes no sense. In the case of partial delivery, the seller is entitled to invoice the parts separately.
Article 11: Force majeure
- The seller shall not be liable for damage suffered by the buyer for failure to fulfil its obligations under the agreement or to fulfil them in a timely or adequate manner, due to force majeure.
- Force majeure includes but is not limited to any circumstance which the seller could not take into account at the time of entering into the agreement and as a result of which the normal execution of the agreement cannot reasonably be demanded by the buyer, such as, for example, illness, war or threat of war, civil war and riot, malicious damage, sabotage, terrorism, power failure, flooding, earthquake, fire, occupation, strikes, lock-outs, altered government measures, transport problems, and other disruptions to the seller's business.
- Force majeure also includes the circumstance that subcontractors on which the seller is dependent for the execution of the agreement, do not fulfill their contractual obligations towards the seller, unless the seller is responsible for such failure.
- If a situation as referred to above arises as a result of which the seller cannot fulfil its obligations towards the buyer, those obligations will be suspended for as long as the seller cannot meet them. If the situation referred to in the previous sentence has lasted 30 calendar days or more, the parties have the right to terminate the agreement in writing, in whole or in part.
- If the force majeure lasts longer than three months, the buyer has the right to terminate the agreement with immediate effect. Termination is only possible by registered mail.
Article 12: Assignment of rights
- Rights of a party under this agreement can not be transferred without the prior written consent of the other party. This provision constitutes a clause with a property law effect within the meaning of the second paragraph of Article 3:83 of the Dutch Civil Code.
Article 13: Retention of title and right of lien
- Delivered goods and parts and those in the possession of the seller remain the property of the seller until the buyer has paid the entire agreed price. Until then the seller can invoke its right to retain title and can recover the goods.
- If the agreed advance payments are not paid or not paid on time, the seller has the right to suspend the work until the agreed part has been paid. This constitutes a creditor's default. The seller cannot then be held responsible for late delivery.
- The seller is not permitted to pledge the goods over which it has retained title nor encumber them in any other way.
- The seller accepts responsibility for insuring and for keeping insured the delivered goods in respect of fire, explosion and water damage as well as theft, and must allow inspection of the policy when first requested.
- The seller has a right of lien where items have not yet been delivered, but the agreed prepayment or price has not been paid in accordance with the agreement. The item will then not be delivered until the buyer has paid in full and in accordance with the agreement.
- In the event of the buyer's liquidation, insolvency or suspension of payment of the buyer, the obligations of the buyer shall become immediately due and payable.
Article 14: Liability
- Any liability for damage arising from or connected with the execution of an agreement is limited to the amount that is paid out under the insurance policy(ies) in the case in question. This amount will be increased by the amount of the excess under the relevant policy.
- The seller will remain liable for damage resulting from intent or recklessness on its part or that of its management employees.
Article 15: Complaints
- The buyer is obliged to immediately notify the seller of any complaints regarding the work performed. The notification should contain as detailed a description as possible of the complaint, to enable the seller to respond adequately.
- If a complaint is well-founded the seller is obliged to repair the goods and if necessary to replace them.
Article 16: Guarantees
- The following provisions are applicable if guarantees are included in the agreement. The seller warrants that what is sold complies with the agreement, will function properly and is suitable for the buyer's intended use. This guarantee will apply for a period of two calendar years after the buyer's receipt of what has been sold.
- Such guarantee is intended to allocate the risk between the seller and the buyer so that the consequences of a breach of a guarantee are always fully for the risk and account of the seller and so that the seller can never invoke Article 6:75 of the Dutch Civil Code in respect of a breach of a guarantee. The provisions of the previous sentence also apply if the buyer was aware of the breach or could have been aware by conducting research.
- The above-mentioned guarantee is not applicable if the breach arises from improper use or misuse or if, without permission, the buyer has adapted or tried to adapt or has used what has been sold for purposes for which it was not intended.
- If the guarantee provided by the seller concerns an item that has been produced by a third party, the guarantee shall be limited to the guarantee provided by that third party.
Article 17: Applicable law
- This agreement between the seller and the buyer is governed exclusively by Dutch law, and is subject to the jurisdiction of the Dutch courts.
- United Nations Convention on Contracts for the International Sale of Goods is not applicable.
- If, in the course of judicial proceedings, one or more provisions of these terms and conditions is found to be unreasonably burdensome, the remaining provisions will continue to apply in full.
Article 18: Choice of forum
Any dispute arising under this agreement will be exclusively settled by the Amsterdam District Court.