General conditions of sale and delivery Mister B
MISTER B WHOLESALE & INTERNET BV
PO BOX 789 1000 AT Amsterdam
Tel +31(0)20 788 30 00 Fax +31(0)20 788 30 90
Van der Madeweg 5-B 1099 BS Amsterdam - Duivendrecht
GENERAL CONDITIONS OF SALE AND DELIVERY MISTER B
Established in Amsterdam-Duivendrecht
Amsterdam Chamber of Commerce Registration Number: 34.275.441
Article 1: Definitions
The following definitions apply in these General Conditions of Sale and Delivery:
The buyer: The natural or artificial person who entered into an agreement with the supplier for the purchase of products of the supplier.
The consumer: The natural person who does not act in the course of a profession or business, who has entered into an agreement with the supplier for the purchase of products of the supplier.
The supplier: Mister B Wholesale & Internet BV, Mister B Trading BV or Mister B Leather & Rubber BV, all having their business address at Van der Madeweg 5B at Amsterdam-Duivendrecht.
The reseller: The natural or artificial person who sells the products of the supplier, irrespective of whether these products were obtained from the supplier directly or through one or more (successive) buyers.
The product: The product or the products that are subject of the agreement.
Mister B Products: The products or the products that have been produced by the supplier.
Existing products: The product or the products that have been produced by someone other than the supplier.
The agreement: Each agreement between buyer and supplier for the purchase of products and services.
Article 2: General
2.1 These conditions form part of all offers, quotations, notifications submitted by the supplier and of all agreements to be entered into by the supplier.
2.2 The applicability of purchase and/or other conditions are explicitly excluded by the supplier.
2.3 Derogation clauses only apply if they have been agreed in writing and in that case only in respect of the particular agreement they have been set out for; these conditions will remain effective in all other respects.
2.4 The possible invalidity of (any part of) these general conditions will not affect the validity of the remaining provisions.
2.5 Before a distant agreement is concluded with a consumer, the text of these General Conditions will be made available electronically to the consumer in such a manner that the consumer can easily save it on a durable data carrier. If this is not reasonably possible, it will be made known prior to the conclusion of the distant agreement where the General Conditions can be electronically viewed and that the conditions will be sent electronically or in a different manner free of charge at the request of the buyer.
2.6 All articles of these General Conditions are applicable to buyer and consumer, unless explicitly indicated that they only apply to one of these parties.
Article 3: Offers
3.1 All offers, quotations and other notifications are without obligation and are all an invitation to make an offer. The supplier is only bound by written confirmation or acceptance of an offer of a buyer / consumer. The offer is the order placed. The acceptance is the confirmation thereof. The term for acceptance or rejection of the consumer's offer will be stated in the offers, quotations or other notifications of supplier.
3.2 If no prior written order or acceptance of an order has taken place (i.e. sale from warehouse stock), the agreement will be concluded because the supplier fully or partially meets the request to deliver and the buyer / consumer has fully paid, or at least the agreed part thereof.
3.3 Changes in the prices, product assortment or composition (i.e. the colour, shape, format) of products are reserved.
3.4 If an agreement is concluded for periodic deliveries, supplier and the consumer will in any case agree the minimum duration for this.
Article 4: Prices
4.1 All prices are exclusive of the BTW (Dutch VAT) determined by the Government, unless explicitly indicated otherwise. The amount of BTW is always stated for consumers, as well as the amount inclusive of BTW. The supplier is in any case entitled to increase prices subject to a period of 4 weeks after notification of the price increase to its buyers. The agreement will be entered into on the basis of the prices the supplier maintains at the moment at which the agreement comes into effect. The supplier may first send a pro forma invoice for an order placed. This pro forma invoice will be replaced by a definitive invoice after delivery. If the definitive invoice is lower than the pro forma invoice the difference will be set off against any outstanding invoices or will be refunded.
4.2 All prices are inclusive of standard packing, unless if and insofar as stated otherwise by the supplier. The supplier may charge a small order fee for orders below EUR 200. Special packing costs and the special provisions that need to be taken for transport purposes will at all times be charged to the buyer / consumer. The additional costs involved will be made known beforehand.
Article 5: Delivery
5.1 Unless explicitly agreed otherwise in writing, delivery will always take place from Mister B’s warehouse at Van der Madeweg, or from the place where the products intended for the buyer will be offered to the first carrier. Unless explicitly agreed otherwise in writing, the products will travel at the expense and risk of the buyer.
5.2 The method of sending and the selection of the means of transport is at the discretion of the supplier. If the supplier wishes to use a different method of sending or a different means of transport, the buyer must explicitly specify this upon ordering. All possible additional costs involved will be at the expense of the buyer.
5.3 The supplier is obliged to take delivery of the products upon first offer. If the buyer fails to do so, all additional costs arising from this will be at the expense of the buyer.
5.4 The acceptance of the products by the buyer, irrespective of the means of transport, constitutes proof that the products have been delivered in a good state, unless the buyer has made an explicit reservation in respect of this by means of a note on the consignment note or on the receipt, and reports this to the supplier within the period referred to in Article 10.
Article 6: Delivery date
6.1 Each delivery date given by the supplier is a target date only is never binding and is not a strict deadline for the supplier. The supplier will therefore never accept responsibility for any damage as a result of failing to meet the deadline.
6.2 If the products ordered appear not available, the supplier will make this known. The amount paid will be refunded to the consumer free of charge within thirty days, or if agreed a product of equal quality will be delivered free of charge.
6.3 The date of delivery can be extended with the number of days that the buyer / consumer is late with payment of any amount that it is owed to the supplier.
6.4 The supplier does not accept responsibility for any stoppage, delay or inability to transport the consignment. If nevertheless the buyer / consumer requires timely delivery, all additional costs involved will be charged to the buyer / consumer.
Article 7: Retention of title
7.1 The supplier will retain ownership of the products delivered by it to the buyer until the purchase prices thereof have been fully paid. At the request of the supplier, the buyer / consumer is obliged to render its assistance with the establishment of the pledge on the goods bought by it from the supplier, such as security for payment by the buyer / consumer.
7.2 The buyer / consumer is obliged to keep the products delivered under retention of title with the care required for those products. The risk in respect of damage and loss of the products will pass to the buyer / consumer immediately after delivery of the products.
7.3 As long as the ownership of the products delivered has not passed to the buyer / consumer, it may not sell or pledge the products or grant any other right thereto to any third party, nor actually transfer the products to a third party or make them to available to it.
7.4 If the buyer / consumer fails to meet its payment or other obligations under the agreement and / or under these General Conditions towards the supplier, or if the supplier has good reason to fear that the buyer / consumer will fail to meet its obligations, the supplier is entitled to repossess the products delivered under retention of title temporarily or definitely at its discretion. The buyer / consumer hereby authorises the supplier to access the site and/or the premises where the products are stored if the situation arises to enable it to repossess these products. If the supplier makes use of the right to repossess the products, it will have the choice to retain the goods or to store them at the expense of the buyer, until the buyer / consumer has complied with all its obligations, or to sell the products and to set off the proceeds thereof against the outstanding claims payable by the buyer / consumer. All this without prejudice to the supplier’s right to compensation pursuant to these Conditions and the law.
Article 8: Recalling of existing products
8.1 If, in the exclusive opinion of the supplier, there is a reason to recall existing products already delivered to the buyer / consumer for inspection, checking or for any other reason, the buyer / consumer will unconditionally undertake to return the existing products concerned on the supplier's first demand and to render all other assistance required in respect of this matter, such as providing information and giving access to the place where the products concerned are stored among other things.
8.2 After return receipt of the products in their original state, the supplier will at its discretion replace the products returned by equivalent new products, or pay the invoice amount of the returned products to the buyer / consumer, possibly increased by the reasonable costs incurred by the buyer / consumer. The supplier is not bound to any other obligation than described in the preceding sentence.
8.3 The supplier will not accept any product responsibility or any other responsibility arising from this pursuant to the law, for defects to existing products and damage suffered as a result of this.
Article 9: Recalling of Mister B products
9.1 If, in the exclusive opinion of the supplier, there is a reason, in the interest of the end-user or in the interest of the maintenance of the good reputation of the supplier, to recall Mister B products already delivered to the buyer / consumer for inspection, checking or for any other reason, the buyer / consumer will unconditionally undertake to return the Mister B products concerned on the supplier's first demand and to render all other assistance required in respect of this matter, such as providing information and giving access to the place where the products concerned are kept among other things.
9.2 The purchase price will be refunded to the consumer within 14 days, or if required, it will have a replacement product delivered upon request.
9.3 The buyer / reseller will be sent products within a reasonable term to replace the products recalled. These products will be of equivalent quality.
Article 10: Complaints
10.1 Complaints will only be addressed by the supplier if these have been filed in writing and directly to the supplier, within 14 days after receipt of the products concerned or after discovery of the defects which are not visible, such at the risk of forfeiting all rights.
10.2 Complaints can no longer be filed if the product delivered has been resold fully or partially, or if any other right thereto has been granted to a third party, if the product delivered has been processed, printed, or (has been) displayed in any other way or if it has been disposed of in any other way, or if instructions in the user manual, instruction leaflet and/or on the packing were not followed, or if the product has been dealt with inexpertly or incorrectly, in the exclusive opinion of the supplier, subject to proof to the contrary by the supplier. It is never possible to file a complaints with regard to an aspect for which the supplier has made a reservation in the user manual, instruction leaflet and/or on the packing.
10.3 Insofar as the product meets the requirements set in Dutch law in respect of this matter or falls within the tolerances or margins permitted by Dutch law, complaints regarding the product in respect of these capacities will not be addressed.
10.4 If the complaint is considered well-founded, the supplier will, at its discretion, after having received back the products delivered in their original state, replace them by equivalent new products or pay compensation up to the invoice amount of the products delivered at most, after having received back the products in their original state. The supplier is not bound to any other obligation than described in the preceding sentence.
10.5 Complaints or any other assertions concerning the sound condition of the products delivered will never give the buyer a reason for suspension or exclusion of payment for previous deliveries or deliveries still to occur, or to dissolve the agreement, not even when the supplier has been timely notified of the complaint pursuant to this article.
10.6 Return consignments other than with the explicit prior written approval of the supplier will not be accepted.
Article 11: Dissolution and termination
11.1 Only the consumer may dissolve the agreement within 14 days without giving reason. When returning the products delivered, the consumer must send the product unused together with all accessories delivered, in their original packing and in the manner indicated. The buyer must file its complaints in the manner indicated, and may only proceed to dissolution after a written notice of default.
11.2 Except for the costs for the return consignment no other costs will be charged to the consumer. The costs of a return consignment by a buyer / consumer will at all times be fully charged to the buyer / consumer.
11.3 The possibility to dissolve as described in Article 11.1 does not apply to products;
- which can go off or get out of date quickly;
- for audio and video recordings which the consumer has broken the seal off;
- which have been produced in accordance with the specifications of the consumer (tailor-made);
- which are clearly of a personal nature.
11.4 For hygienic reasons intimate products can only be returned if the packing is unopened. Agreements for these products may only be dissolved under this condition.
11.5 If the supplier and the consumer enter into an agreement for the periodic purchase of products for an indefinite period of time, it will be possible to terminate this agreement early subject to observance of the notice period. This notice period is one month.
Article 12: Exclusion / restriction of supplier's liability
12.1 The buyer / consumer is aware of the nature and the risks in view of the lifestyle products and services that the supplier supplies. Inconsiderate, experimental or other careless use will be fully at the expense and risk of the buyer / consumer. The consumer / buyer will at all times realise that there are risks connected to the (method of) use of the products and services. Deviant use, for example contrary to the attached user manual, is discouraged. However, even if a user manual is attached, people will always need to handle the products and services sensibly. All use is at one’s own risk.
12.2 The supplier never accepts responsibility for whatever damage, including trading loss, suffered by the buyer / consumer, reseller and/or third parties, including personnel of buyer or reseller, caused directly or indirectly by existing products delivered by the supplier, unless the damage was caused by an intentional act or gross negligence by the supplier, in which case the supplier will, however, never be obliged to pay more compensation than an amount equal to the invoice amount of the existing products delivered, with a maximum of € 5,000. The supplier never accepts liability for direct or indirect damage of whatever nature, caused by its personnel or by third parties it engages, irrespective of whether this personnel or these third parties can be accused of intention or gross negligence. The buyer and / or reseller is obliged to fully indemnify the supplier against each liability towards third parties, both in and out of court.
12.3 Liability Mister B products:
- Product liability: The supplier only accepts liability towards the consumer pursuant to Articles 6:185 et seq. of the Dutch Civil Code for Mister B products that cause damage to (i) persons or matters in the private field, and whereby that damage - when it concerns damage to persons - results in death of physical injury, or (ii) when it concerns damage to matters that are private and which damage exceeds EUR 500.
- Third-party liability: If any intentional acting or omitting or wilfully acting or omitting recklessly by the supplier or its managers leads to death or physical injury, the supplier's liability will not be restricted. Beyond the supplier’s Product Liability, the third-party liability of the supplier in respect of the consumer is restricted to either EUR 5,000 or the scope of the order, depending on which amount is the lowest, for any damage to goods per incident.
- Contractual and noncontractual liability towards the buyer and/or reseller: The liability pursuant to the agreement or an unlawful act towards the buyer and/or the reseller, who is not a consumer, is restricted to an amount equivalent to 125% of the Price. The supplier accepts no liability towards the buyer and/or reseller, who is not a consumer, for: (i) damage to Mister B Products due to a fault or failure, which have been replaced or repaired by the supplier within a reasonable period of time; (ii) indirect damage or net financial loss such as missed business opportunities, lost turnover and lost profit; (iii) damage that could have been prevented by following the supplier’s recommendations and instructions; and (iv) damage that is caused because the supplier made use of the specified or delivered materials of the buyer / reseller, who is not a consumer, and/or has acted in accordance with the instructions of the buyer / reseller, who is not a consumer (v) damage that is caused because the buyer / reseller has not fully communicated the user instructions, which were delivered with the Mister B products by the supplier, to the end-user.
Article 13: Force majeure
13.1 If the supplier due to a delay in the delivery of the products, raw materials or other required materials, fails to deliver the product, to deliver fully or in time, the supplier will have the right, at its discretion, to suspend the delivery or to abandon the delivery completely, depending on the circumstances. If an event occurs as described in the preceding sentence, the buyer / consumer will not be entitled to any compensation.
13.2 The supplier will notify the buyer / consumer or reseller of such a delay as soon as possible.
Article 14: Payment
14.1 Unless explicitly agreed otherwise, payments will be made digitally through the third party indicated, prior to the delivery. If payment is made by an invoice, it must be paid within the payment term stated on the invoice, without claiming a discount, settlement or setoff.
14.2 After expiration of the period referred to in Article 14.1, the buyer / consumer will be in default by operation of law and the buyer / consumer will owe to the supplier a contractual default interest on the invoice amount or on the unpaid part thereof from the day that the amount is due until the date of full payment, equal to the promissory note discount rate of the Nederlandsche Bank applicable at that moment + 3%. All costs, arisen as a result of the judicial or extrajudicial collection of a claim, will be at the expense of the buyer / consumer. The extrajudicial costs amount to at least 15% of the total amount to be collected.
14.3 If the buyer / consumer is in default with timely payment of a debt due and payable to the supplier, the supplier will be entitled to suspend the further performance of all ongoing agreements with the buyer / consumer until that payment has been made, or to dissolve these fully or partially, and the supplier will be entitled to demand cash payment or sufficient security for further delivery.
14.4 If the buyer / consumer is granted a moratorium or may be granted a moratorium, the buyer / consumer is declared bankrupt or the buyer decides to liquidate its business, or if the supplier obtains information which indicates with reasonable certainty that the buyer will more than likely not be able to meet its payment obligations, the supplier will be entitled to demand that the buyer will pay in cash or provide sufficient security.
Article 15: Guarantees and indemnification
15.1 The buyer / consumer, who is a reseller, guarantees to meet the following conditions when reselling the products purchased from the supplier:
- The website on which the products will be sold will at least meet the legal requirements for distant agreements (Section 9a of Book 7 Dutch Civil Code).
- The reseller guarantees to charge a reasonable margin in the exclusive opinion of the supplier when selling the products that the buyer has had delivered by the supplier.
- The reseller will not act contrary to any brands, copyrights, design rights or other Intellectual Property Rights of supplier or third parties. As for the intellectual property rights of the supplier, no other use is permitted than permitted in Article 15.
- The reseller guarantees that his / her website / shop meets the quality standards set by Mister B.
- When selling 100 products or more to an artificial person who will resell the products again, permission must be obtained from the supplier.
15.2 If the buyer / consumer fails to meet any obligation under the agreement and / or these general conditions, it will be liable towards the supplier for all damage that the supplier may suffer resulting from non-compliance. In the event of non-compliance of the buyer / consumer, supplier is at all times entitled to exclude the buyer / consumer from (direct or indirect) deliveries of products.
15.3 The buyer / consumer will indemnify the supplier against all claims from third parties relating to the products delivered to the buyer / consumer by the supplier through which third parties may have suffered damage, irrespective of the cause or time of the creation.
15.4 If the reseller, who is not a consumer, sells Mister B products to third parties, the product liability of the supplier is restricted to failures to the products that are visible on delivery of the products, and are reported to the supplier within 14 working days. The liability will be restricted to the net amount of the defective products at most.
15.5 The reseller will indemnify the supplier against all claims from third parties relating to the products delivered to the buyer / consumer by the supplier through which third parties may have suffered damage, irrespective of the cause or time of the creation.
Article 16: Exclusive selling rights
16.1 The supplier does not acknowledge exclusive selling rights for whatever municipality, region, province, district or country, unless explicitly agreed otherwise in writing.
16.2 The supplier does not acknowledge exclusive selling rights for specific product groups, markets, market segments, buyer groups or trade channels, unless explicitly otherwise agreed in writing.
Article 17 Intellectual property / trademark right
17.1 Supplier is the owner of the brand, logo and tradename of ‘Mister B’. Buyer is not permitted to use the brand, logo and trade name of ‘Mister B’, unless otherwise agreed in writing with the supplier.
17.2 All artwork of Mister B, such as advertising campaigns, model photography and the website www.misterb.com, is the property of supplier. The buyer is not permitted to use the artwork of the Mister B advertising campaign and the model photography on the website www.misterb.com, unless otherwise agreed in writing with supplier.
17.3 The buyer may promote the sale of products of supplier on the internet, but the website of the buyer must clearly differ in image and appearance from www.misterb.com so that no confusion may arise about the identity of the supplier.
17.4 The buyer / consumer may not make use of artwork of the supplier such as pictures and texts of the website, unless otherwise agreed in writing with the supplier.
17.5 The buyer / consumer may not make use of artwork of the supplier such as pictures and texts of the website, if the products are bought elsewhere, unless otherwise agreed in writing with the supplier.
17.6 The buyer / consumer may only make use of the artwork of the supplier in the manner indicated, including but not restricted to, pictures and texts of the website, if and insofar the quality requirements have been met as stipulated in Article 15.
Article 18: Privacy
18.1 The supplier respects the privacy of all users of its website and ensures that all personal information provided will be treated in confidence. The supplier will use your details to carry out the orders as soon and easy as possible. The supplier will use the details for other purposes only with your permission. The supplier will not sell your personal details to third parties and will only make details available to third parties that are involved in the carrying out of your order.
Article 19: Applicable law and competent court
19.1 These Conditions and all agreements concluded under these Conditions will exclusively be governed by Dutch law.
19.2 All disputes that may arise as a result of these General Conditions or agreements concluded between the supplier and its buyer (or reseller), will first be submitted to a mediator, after which, if this should not lead to a solution, disputes will be judged by the competent court in Amsterdam, unless in the event that the buyer, within a term of 4 weeks after the supplier has invoked this clause in writing, has notified the supplier to apply to the court competent by law to settle the dispute.
Article 20: Translations
20.1 This is a translation of our original Dutch General Conditions. In the event of a conflict, the original Dutch General Conditions will prevail and Dutch law will be applicable.