Terms and Conditions
GENERAL TERMS AND CONDITIONS WEBSHOP (B2C)
Article 1 - Definitions
MS Products, established in Schiedam, the Netherlands, KvK number 73777323, is referred to in these general terms and conditions as Seller.
The other party of Seller shall be referred to in these general terms and conditions as Buyer.
The parties are the seller and the buyer together.
Agreement means the purchase agreement between the parties.
Article 2 - Applicability of general terms and conditions
These terms and conditions shall apply to all quotations, offers, agreements and deliveries of services or goods by or on behalf of seller.
Deviation from these terms and conditions is only possible if expressly agreed in writing by the parties.
Article 3 - Payment
The full purchase price is always paid immediately in the webshop. For reservations, a down payment is sometimes expected. In that case, the buyer will receive proof of the reservation and prepayment.
If the buyer does not pay on time, he will be in default. If the buyer remains in default, the seller is entitled to suspend the obligations until the buyer has fulfilled his payment obligation.
If the buyer remains in default, the seller will proceed to collection. The costs relating to such collection shall be borne by the Buyer. These collection costs will be calculated on the basis of the Compensation for Extrajudicial Collection Costs Decree.
In the event of liquidation, bankruptcy, attachment or suspension of payment of the buyer, the seller's claims on the buyer shall be immediately due and payable.
If buyer refuses to cooperate in seller's execution of the order, he shall still be obliged to pay the agreed price to seller.
Article 4 - Offers, quotations and price
Offers shall be without obligation, unless the offer states a period for acceptance. If the offer is not accepted within that period, the offer lapses.
Delivery times in offers are indicative and do not entitle the buyer to dissolution or damages if they are exceeded, unless the parties have expressly agreed otherwise in writing.
Offers and quotations do not automatically apply to repeat orders. The parties must agree this explicitly and in writing.
The price mentioned on offers, quotations and invoices consists of the purchase price including VAT and any other government levies due.
Article 5 - Right of withdrawal
After receiving the order, the consumer is entitled to dissolve the agreement within 14 days without giving reasons (right of withdrawal). The period starts when the (entire) order is received by the consumer.
There is no right of withdrawal if the products are custom-made according to his specifications or have only a short shelf life.
The consumer can use a withdrawal form provided by the seller. The seller is obliged to make this available to the buyer immediately after the buyer's request.
During the withdrawal 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 return the unused and undamaged product with all delivered accessories 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 - Changes to the agreement
If during the execution of the agreement it appears that for a proper execution of the assignment it is necessary to change or supplement the activities to be performed, the parties shall amend the agreement accordingly in good time and in mutual consultation.
If the parties agree that the agreement will be amended or supplemented, this may affect the time of completion of the execution. The Seller shall inform the Buyer of this as soon as possible.
If the amendment or supplement to the Agreement has financial and/or qualitative consequences, the Seller shall inform the Buyer thereof in writing in advance.
If the parties have agreed on a fixed price, the Seller shall also indicate the extent to which the amendment or supplement to the Agreement will result in this price being exceeded.
Contrary to the provisions of the third paragraph of this article, vendor cannot charge additional costs if the change or supplement is the result of circumstances attributable to him.
Article 7 - Delivery and transfer of risk
As soon as the purchased item is received by purchaser, the risk shall pass from vendor to purchaser.
Article 8 - Examination and complaints
The Buyer shall be obliged to examine the delivered goods, or have them examined, at the time of delivery, but in any event within as short a period as possible. In doing so, purchaser shall 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 applicable to them in normal (commercial) dealings.
Complaints regarding damage, shortages or loss of delivered goods must be submitted to the seller in writing within 10 working days from the day of delivery of the goods by the buyer.
If the complaint is declared well-founded within the specified period, the seller has the right to either repair, redeliver or abandon delivery and send the buyer a credit note for that part of the purchase price.
Minor and/or industry-standard deviations and differences in quality, number, size or finish cannot be held against the seller.
Complaints regarding a certain product do not affect other products or parts belonging to the same agreement.
No complaints shall be accepted after the goods have been processed at the buyer's premises.
Article 9 - Samples and models
If a sample or model has been shown or provided to purchaser, it is assumed to have been provided as an indication only, without the goods to be delivered having to correspond to it. This is different if the parties have explicitly agreed that the good to be delivered shall correspond with it.
In the case of agreements concerning immovable property, a statement of the surface area or other measurements and indications shall also be presumed to have been provided merely as an indication, without the item to be delivered having to correspond to it.
Article 10 - Delivery
Delivery shall be 'ex-factory/shop/warehouse'. This means that all costs are for buyer's account.
Purchaser shall be obliged to take delivery of the goods at the moment that vendor delivers them or has them delivered to him, or at the moment at which these goods are made available to him in accordance with the agreement.
If the Buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, the Seller shall be entitled to store the goods at the Buyer's expense and risk.
If the goods are delivered, the Seller shall be entitled to charge any delivery costs.
If the Seller requires information from the Buyer for the performance of the Agreement, the delivery period will commence after the Buyer has made this information available to the Seller.
A delivery period stated by the Seller is indicative. It is never a deadline. If the term is exceeded, the Buyer must give the Seller written notice of default.
The Seller will be entitled to deliver the goods in parts, unless the parties have agreed otherwise in writing or partial deliveries have no independent value. In the event of delivery in parts, vendor shall be entitled to invoice these parts separately.
Article 11 - Force majeure
If the seller cannot fulfil his obligations under the agreement, or cannot fulfil them on time or properly, due to force majeure, he shall not be liable for any damage suffered by the buyer.
By force majeure parties shall in any case mean any circumstance which 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 required by purchaser, such as illness, war or danger of war, civil war and riots, acts of war, sabotage, terrorism, energy failure, flooding, earthquake, fire, occupation of premises, strikes, lock-outs, changed government measures, transport difficulties, and other disruptions in seller's business.
Furthermore, the parties shall understand force majeure to mean the circumstance that supplier companies on which the seller depends for the execution of the agreement fail to comply with their contractual obligations towards the seller, unless the seller can be blamed for this.
If a situation as referred to above arises as a result of which the Seller cannot fulfil its obligations to the Buyer, those obligations shall be suspended for as long as the Seller cannot fulfil its obligations. If the situation referred to in the previous sentence has lasted for 30 calendar days, the parties shall be entitled to dissolve the agreement in full or in part in writing.
In case the force majeure continues for more than three months, the buyer has the right to dissolve the agreement with immediate effect. Dissolution can only be done by registered letter.
Article 12 - Transfer of rights
Rights of a party under this agreement cannot be transferred without the prior written consent of the other party. This provision is deemed to be a clause with property law effect as referred to in article 3:83, second paragraph, Civil Code.
Article 13 - Retention of title and right of retention
The goods and parts delivered to vendor shall remain the property of vendor until purchaser has paid the entire agreed price. Until that time, vendor may invoke its retention of title and repossess the goods.
If the agreed amounts to be paid in advance are not paid or not paid in time, the seller is entitled to suspend the work until the agreed part has been paid. This shall constitute creditor default. Late delivery cannot be held against the seller in that case.
The seller is not authorised to pledge or encumber in any other way the goods subject to its retention of title.
The seller undertakes to insure the goods delivered to the buyer under retention of title and to keep them insured against fire, explosion and water damage and against theft and to make the policy available for inspection on demand.
If goods have not yet been delivered but the agreed advance payment or price has not been paid as agreed, the seller shall have the right of retention. The goods shall then not be delivered until the buyer has paid in full and in accordance with the agreement.
In the event of buyer's liquidation, insolvency or suspension of payments, buyer's obligations shall become immediately due and payable.
Article 14 - Liability
Any liability for damage arising from or related to the execution of an agreement shall always be limited to the amount paid out in the case in question by the liability insurance(s) taken out. This amount shall be increased by the amount of the excess under the relevant policy.
Not excluded is vendor's liability for damage resulting from intent or deliberate recklessness on the part of vendor or its executive employees.
Article 15 - Obligation to complain
Purchaser is obliged to report complaints about the work carried out immediately to vendor. The complaint shall contain as detailed a description as possible of the shortcoming, so that Seller is able to respond adequately.
If a complaint is well-founded, vendor is obliged to repair and possibly replace the good.
Article 16 - Guarantees
If guarantees are included in the agreement, the following shall apply. Vendor guarantees that the sold property complies with the agreement, that it will function without defects and that it is suitable for the use that purchaser intends to make of it. This guarantee applies for a period of two calendar years after receipt of the goods sold by the buyer.
The guarantee referred to is intended to create an allocation of risks between the Seller and the Buyer such that the consequences of a breach of guarantee shall always be entirely for the Seller's account and risk and that the Seller can never invoke Section 6:75 of the Dutch Civil Code in respect of a breach of guarantee. The provisions of the previous sentence also apply if the Buyer was aware or could have been aware of the breach by carrying out an investigation.
The said guarantee does not apply when the defect has arisen as a result of injudicious or improper use or when - without permission - the Buyer or third parties have made changes or attempted to make changes or have used the purchased item for purposes for which it is not intended.
If the guarantee provided by Seller concerns an item produced by a third party, the guarantee shall be limited to the guarantee provided by that producer.
Article 17 - Intellectual property
MS Products retains all intellectual property rights (including copyright, patent rights, trademark rights, drawing and model rights, etc.) to all products, designs, drawings, writings, carriers with data or other information, quotations, images, sketches, models, models, etc., unless the parties have agreed otherwise in writing.
The customer may not copy, show and/or make available to third parties or use in any other way said intellectual property rights without prior written permission of MS Products.
Article 18 - Amendment general conditions
MS Products is entitled to amend or supplement these General Terms and Conditions.
Changes of minor importance can be made at any time.
As far as possible, MS Products will discuss major changes with the client in advance.
Consumers are entitled to terminate the Agreement in case of a substantial change to the General Terms and Conditions.
Article 19 - Applicable law and competent court
Each agreement between parties is exclusively governed by Dutch law.
The Dutch court in the district where MS Products has its registered office has exclusive jurisdiction to take cognisance of any disputes between the parties, unless imperatively prescribed otherwise by law.
The applicability of the Vienna Sales Convention is excluded.
If in legal proceedings one or more provisions of these general terms and conditions are deemed unreasonably onerous, the other provisions shall remain in full force.
Article 20 - Attribution
These general terms and conditions shall apply from: 01 January 2021