General Terms and Conditions

GENERAL TERMS AND CONDITIONS WEBSHOP (B2C)

Article 1 - Definitions

1. CalmActiva (Calmactiva BV), established in Amsterdam, Chamber of Commerce number 91303230, is referred to in these general terms and conditions as the seller.
2. The counterparty of the seller is referred to in these general terms and conditions as the buyer.
3. The parties are seller and buyer together.
4. The Agreement means the purchase agreement between the parties.

Article 2 - Applicability of general terms and conditions

1. These terms and conditions apply to all quotations, offers, agreements and deliveries of services or goods by or on behalf of the seller.
2. Deviation from these conditions is only possible if this has been expressly agreed in writing by the parties.

Article 3 - Payment

1. The full purchase price is always paid immediately in the webshop. In some cases, a down payment is expected for reservations. In that case, the buyer receives proof of the reservation and the advance payment.
2. If the buyer does not pay on time, he is in default. If the buyer remains in default, the seller is entitled to suspend the obligations until the buyer has fulfilled his payment obligation.
3. If the buyer remains in default, the seller will proceed to collection. The costs relating to that collection will be borne by the buyer. These collection costs are calculated on the basis of the Decree on compensation for extrajudicial collection costs.
4. In the event of liquidation, bankruptcy, attachment or suspension of payments of the buyer, the seller's claims on the buyer shall be immediately due and payable.
5. If the buyer refuses to cooperate with the execution of the order by the seller, he is still obliged to pay the agreed price to the seller.

Article 4 - Offers, quotations and price

1. Offers are without obligation, unless a term of acceptance is stated in the offer. If the offer is not accepted within that term, the offer will lapse.
2. Delivery times in quotations are indicative and do not entitle the buyer to cancellation or compensation if they are exceeded, unless the parties have expressly agreed otherwise in writing.
3. Offers and quotations do not automatically apply to repeat orders. Parties must agree to this explicitly and in writing.
4. The price stated on offers, quotations and invoices consists of the purchase price including the VAT due and any other government levies.

Article 5 - Right of withdrawal

1. The consumer is given the right to dissolve the agreement within 14 days after receipt of the order without giving reasons (right of withdrawal). The term starts from the moment the (entire) order is received by the consumer.
2. There is no right of withdrawal if the products are custom-made according to your specifications or have a short shelf life.
3. The consumer can use a withdrawal form from the seller. The seller is obliged to make this available to the buyer immediately after the buyer's request.     
4. During the cooling-off period, the consumer will handle the product and packaging with care. He will only unpack or use the product to the extent necessary to assess whether he wishes to keep the product. If he exercises his right of withdrawal, he will keep the unused and undamaged product. If he exercises his right of withdrawal, he will return the unused and undamaged product with all accessories supplied and - if reasonably possible - in the original shipping packaging to the seller, in accordance with the reasonable and clear instructions provided by the entrepreneur.

Article 6 - Amendment of the agreement

1. If during the execution of the agreement it appears that it is necessary to change or supplement the work to be carried out for the proper execution of the assignment, the parties will adjust the agreement accordingly in a timely manner and in mutual consultation.
2. If the parties agree that the agreement is amended or supplemented, the time of completion of the execution may be affected. Seller shall inform buyer of this as soon as possible.
3. If the amendment or addition to the agreement has financial and/or qualitative consequences, the seller shall inform the buyer of this in writing in advance.
4. If the parties have agreed on a fixed price, the seller will indicate to what extent the change or addition to the agreement will result in an excess of this price.
5. By way of exception to the provisions of the third paragraph of this article, the seller may not charge additional costs if the change or addition is the result of circumstances that can be attributed to him.

Article 7 - Delivery and transfer of risk

1. Once the purchased item has been received by the buyer, the risk passes from seller to buyer.

Article 8 - Investigation and complaints

1. Buyer is obliged to examine the delivered goods at the time of delivery, but in any case within the shortest possible period. In doing so, buyer must examine whether the quality and quantity of the delivered goods correspond with what the parties have agreed, or at least whether the quality and quantity meet the requirements that apply to them in normal (commercial) transactions.
2. Complaints regarding damage, shortages or loss of delivered goods must be submitted in writing to the seller within 10 working days after the day of delivery of the goods by the buyer.
3. If the complaint is found to be justified within the specified period, the seller has the right to either repair or redeliver, or to cancel delivery and send the buyer a credit note for that part of the purchase price.
4. Minor and/or industry-standard deviations and differences in quality, quantity, size or finish cannot be held against the seller.
5. Complaints regarding a specific product do not affect other products or parts belonging to the same agreement.
6. After the goods have been processed by the buyer, no more complaints will be accepted.

Article 9 - Samples and models

1. If a sample or model has been shown or provided to the buyer, it is presumed to have been provided only as an indication without the item to be delivered having to correspond to it. This is different if the parties have expressly agreed that the item to be delivered will correspond to it.
2. In agreements relating to immovable property, any mention of the surface area or other dimensions and indications is also presumed to be intended only as an indication, without the item to be delivered having to correspond to it.

Article 10 - Delivery

1. Delivery is 'ex works/shop/warehouse'. This means that all costs are for the buyer.
2. The buyer is obliged to take delivery of the goods at the time the seller delivers them or has them delivered to him, or at the time the goods are made available to him in accordance with the agreement.
3. If the buyer refuses to accept delivery or fails to provide information or instructions necessary for delivery, the seller is entitled to store the item at the buyer's expense and risk.
4. If the goods are delivered, the seller is entitled to charge any delivery costs.
5. If the seller requires information from the buyer for the execution of the agreement, the delivery time commences after the buyer has made this information available to the seller.
6. A delivery term given by the seller is indicative. This is never a fatal term. If the term is exceeded, the buyer must give the seller written notice of default.
7. Seller is entitled to deliver the goods in parts, unless the parties have agreed otherwise in writing or partial delivery has no independent value. In the event of delivery in parts, Seller is entitled to invoice these parts separately.

Article 11 - Force Majeure

1. If the seller is unable to fulfil his obligations under the agreement, or is unable to fulfil them in a timely manner or properly due to force majeure, he shall not be liable for any damage suffered by the buyer.
2. Force majeure shall in any event be understood by the parties to mean any circumstance which the seller could not have taken into account at the time of entering into the agreement and as a result of which the normal performance of the agreement cannot reasonably be expected by the buyer, such as illness, war or threat of war, civil war and riot, molestation, sabotage, terrorism, power failure, flooding, earthquake, fire, occupation of a company, strikes, lock-out, changed government measures, transport difficulties and other disruptions in the seller's business.
3. Furthermore, the parties understand force majeure to mean the circumstance that suppliers on which the seller depends for the performance of the agreement do not meet their contractual obligations towards the seller, unless this is attributable to the seller.
4. If a situation as referred to above occurs as a result of which the seller cannot meet its obligations towards the buyer, those obligations will be suspended for as long as the seller cannot meet its obligations. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties have the right to terminate the agreement in writing in whole or in part.
5. If the force majeure lasts longer than three months, the buyer has the right to terminate the agreement with immediate effect. Termination can only be done by registered letter.

Article 12 - Transfer of rights

1. Rights of a party under this agreement may not be transferred without the prior written consent of the other party. This provision shall be deemed to be a clause with property law effect as referred to in Article 3:83, paragraph 2, of the Dutch Civil Code.

Article 13 - Retention of title and right of retention

1. The goods present at the seller and delivered goods and parts remain the property of the seller until the buyer has paid the entire agreed price. Until that time, the seller can invoke his retention of title and take back the goods.
2. 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 is considered a creditor's default. In that case, a late delivery cannot be held against the seller.
3. The seller is not authorised to pledge or otherwise encumber the goods subject to his retention of title.
4. Seller undertakes to insure and keep insured the goods delivered to buyer under retention of title against fire, explosion and water damage as well as against theft and to make the policy available for inspection upon first request.
5. If goods have not yet been delivered, but the agreed advance payment or price has not been paid as agreed, the seller has the right of retention. The goods will then not be delivered until the buyer has paid in full and as agreed.
6. In the event of liquidation, insolvency or suspension of payments of the buyer, the buyer's obligations shall become immediately due and payable.

Article 14 - Liability

1. Any liability for damage resulting from or related to the performance of an agreement is always limited to the amount paid out in the relevant case by the liability insurance(s) taken out. This amount is increased by the amount of the deductible according to the relevant policy.
2. The seller is not liable for damage resulting from intent or deliberate recklessness on the part of the seller or his managerial subordinates.

Article 15 - Obligation to complain

1. Buyer is obliged to report complaints about the work performed directly to seller. The complaint contains a description of the shortcoming in as much detail as possible, so that seller is able to respond adequately.
2. If a complaint is justified, the seller is obliged to repair the goods and, if necessary, replace them.

Article 16 - Guarantees

1. If the agreement includes guarantees, the following applies. Seller guarantees that the sold item complies with the agreement, that it will function without defects and that it is suitable for the use that the buyer intends to make of it. This guarantee applies for a period of two calendar years after receipt of the sold item by the buyer.
2. The intended guarantee is intended to establish such a risk allocation between seller and buyer that the consequences of a breach of a guarantee are always entirely for the account and risk of seller and that seller can never invoke article 6:75 BW in respect of a breach of a guarantee. The provision in the previous sentence also applies if the breach was known to buyer or could have been known by conducting an investigation.
3. The aforementioned warranty does not apply if the defect has arisen as a result of improper or inappropriate use or if - without permission - the buyer or third parties have made or attempted to make changes or have used the purchased item for purposes for which it is not intended.
4. If the warranty provided by the seller relates to an item produced by a third party, the warranty is limited to the warranty provided by that producer.

Article 17 - Intellectual property

1. CalmActiva retains all intellectual property rights (including copyright, patent rights, trademark rights, design and model rights, etc.) on all products, designs, drawings, writings, data carriers or other information, quotations, images, sketches, models, mock-ups, etc., unless the parties have agreed otherwise in writing.
2. The customer may not copy, show to third parties and/or make available or otherwise use the aforementioned intellectual property rights without the prior written consent of CalmActiva.

Article 18 - Amendment of general terms and conditions

1. CalmActiva is entitled to amend or supplement these general terms and conditions.
2. Minor changes may be made at any time.
3. CalmActiva will discuss major substantive changes with the customer in advance as much as possible.
4. Consumers are entitled to terminate the agreement in the event of a material change to the general terms and conditions.

Article 19 - Applicable law and competent court

1. Dutch law applies exclusively to any agreement between the parties.
2. The Dutch court in the district where CalmActiva is established has exclusive jurisdiction to hear any disputes between the parties, unless the law prescribes otherwise.
3. The applicability of the Vienna Sales Convention is excluded.
4. If one or more provisions of these general terms and conditions are deemed to be unreasonably onerous in legal proceedings, the other provisions will remain in full force.