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General terms and conditions from Mobinova
1432 JP Aalsmeer, the Netherlands
Chamber of Commerce nr.: 34105033
Article 1 Definitions
- In these general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
The consumer: an opposite party being a natural person who does not act in the course of a business or in the course of a profession;
The Agreement: the agreement between Mobinova and the consumer;
The Consumer Purchase: the agreement of sale concerning a movable thing, concluded by a seller acting in the course of a profession or a business, and a consumer being a natural person not acting in the course of a profession or a business.
Article 2 General
- The present terms and conditions shall apply to each and every offer, tender and Agreement between Mobinova and a consumer, to which Mobinova has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing.
- The present terms and conditions shall also apply to agreements with Mobinova, the execution of which calls for the services of third parties.
- Possible deviations from the present general terms and conditions shall only be valid provided they have been explicitly agreed upon in writing.
Article 3 Offers and Tenders
- All offers and tenders shall be free of obligation and shall be made in any written form, unless Mobinova forgoes a written offer for practical, urgent or other reasons. The offer shall bear a date, or shall provide the possibility to be determined according to the date.
- Mobinova shall only be bound by offers and tenders if the consumer accepts such, preferably in writing, within 14 days and as long as supplies last. The prices given in an offer shall include VAT, unless indicated otherwise.
- It shall not be possible to bind Mobinova to its offers and tenders if the consumer should have understood in accordance with the requirements of reasonableness and fairness and according to the usual criteria in social and economic life that the offer or tender, or part thereof, obviously contains a mistake or an error in writing.
- If the acceptance deviates (on secondary items) from the offer given, Mobinova shall not be bound by it. The Agreement shall in such an event not be concluded in accordance with said deviating acceptance, unless Mobinova indicates otherwise.
- A compound quotation shall not oblige Mobinova to deliver part of the goods contained in the offer or tender against a corresponding part of the given quotation.
- Offers and tenders shall not apply automatically to repeat orders.
Article 4 Conclusion of the Agreement
- The present Agreement shall be concluded through the timely acceptance by the consumer of Mobinova’s offer.
Article 5 Delivery
- Unless agreed upon otherwise, delivery shall be made ex works/store/warehouse of Mobinova.
- The consumer shall be held to take delivery of the purchased goods the moment said goods are at his disposal or handed over to him.
- If the consumer refuses to take delivery of the purchased goods or fails to give the information or instructions necessary to their delivery, the goods destined for delivery shall be stored at the consumer’s risk following notification of the consumer by Mobinova. In said event, the consumer shall owe all additional costs.
- If the consumer and Mobinova agree upon delivery, the purchased goods shall be delivered at cost, unless agreed upon otherwise. In the event of delivery, Mobinova shall reserve the right to invoice the service charge separately.
- If, in the framework of the execution of the Agreement, Mobinova requires data to be given by the consumer, the term of delivery shall commence after the consumer has provided Mobinova with said data.
- If Mobinova has given a term of delivery, it shall only be indicative. A given term of delivery shall therefore never constitute a term to be observed on penalty or forfeiture of rights. The final delivery shall, however, never exceed the given term by more than one month, unless there is a matter of force majeure. If the term of delivery is exceeded, the consumer must give Mobinova notice of default in writing.
Article 6 Guarantee
- Mobinova shall guarantee that the goods to be delivered shall meet the usual requirements and standards that can be set for and made upon them and that they shall be free of any defect whatsoever. Stains on and discolouring of fabrics are excluded from this guarantee, unless they are visible at the time of delivery. Claims on rain covers are also excluded from guarantee, unless claimed within 1 week of delivery.
- The guarantee mentioned under 1 shall equally apply if the goods to be delivered are destined for use abroad and if the consumer explicitly informed Mobinova of this use in writing the moment the agreement was entered into.
- The guarantee mentioned under 1 shall be valid for a period of 12 (twelve) months following delivery.
- Mobinova shall provide the consumer with a note of purchase, which shall serve as proof with respect to the guarantee.
- If the good to be delivered does not comply with said guarantee, Mobinova shall, at its discretion, replace or see to the repair of the good, within a reasonable period of time following receipt thereof, or, if the good cannot be returned in reason, following written notification of the defect by the consumer. In the event the good is replaced, the consumer shall already now undertake to return the replaced good to Mobinova and transfer ownership of it to Mobinova.
- The guarantee mentioned for this purpose shall not apply when the defect originated as the result of injudicious or improper use or when the Consumer or third parties have introduced changes or tried to introduce changes to the good without Mobinova’s consent in writing or if they have used it for purposes for which the good was not intended.
- In case the delivered good does not comply with the Agreement and this non-conformity is a defect as meant in the product-liability rules, Mobinova is not liable for any consequential damage resulting from the defect.
- All that is stated in these general terms and conditions about guarantee has no effect on the guarantees of the consumer by reason of the law, everything with due observance of the provisions set out in these general terms and conditions and in the agreement, including the nature and quality of the goods sold and delivered to the consumer.
- Parts that are subject to tear and wear, such as tires, cables, batteries, etc. are excluded from guarantee.
Article 7 Samples and Models
- If Mobinova has shown or given the consumer a sample or model, the good shall correspond with it, unless the showing happened or the sample was given by way of indication.
Article 8 Retention of Title
- Mobinova shall remain the full owner of the delivered good until the purchase price has been paid in full.
Article 9 Inspection and Complaints
- The consumer shall be held to inspect the delivered goods (to have the delivered goods inspected) the moment of delivery (handing over), but in any case in as short a period of time as possible. In this respect, the consumer must examine whether the quality and quantity of the delivered goods comply with what was agreed upon, or at least whether they meet the requirements applying to said goods in normal (business) transactions.
- Possible visible shortcomings must be communicated in writing to Mobinova within 7 (seven) days following delivery with the simultaneous submission of the certificate of guarantee and the defect good, unless the latter is impossible or unreasonably onerous.
- The consumer must inform Mobinova of a non-visible defect within 14 (fourteen) days following its detection, but in any case before the guarantee period expires, observing the stipulations of the previous paragraph of the present article. When the guarantee period has expired, Mobinova shall be entitled to charge the consumer for all repair or replacement costs, including administration and shipment costs as well as call-out charges.
- If in accordance with the previous paragraph, the consumer files his complaint in due time, he shall be held to take delivery and effect payment of the goods purchased. If the consumer wishes to return the defect goods, he shall do so following prior consent in writing from Mobinova and in the manner as indicated by Mobinova.
Article 10 Transfer of Risk
- The risk of loss of, or damage to the products being the subject of the agreement, shall be transferred to the Consumer the moment said products are judicially and/or actually delivered to the Consumer and therefore fall into power of the consumer or of third parties to be appointed by the consumer.
Article 11 Price Increase
- If Mobinova agrees upon a certain price with the consumer the moment the agreement is concluded, Mobinova shall not be entitled to increase the price, unless the price was given subject to approval.
Article 12 Payment
- Unless agreed upon otherwise, payment must be made before delivery or cash upon delivery if delivered in Aalsmeer.
- If payment is not made in cash, it must be effected within 14 days from the date of invoice, in a way to be indicated by Mobinova and in the currency in which the goods were invoiced.
- Contestation of the amount of the invoices shall not suspend the fulfilment of the payment obligation.
- After the expiry of 14 days from the date of invoice, the Consumer shall be in default by operation of law; commencing on the moment the consumer is in default, he shall owe an interest of 1% per month of the amount due and payable, unless the statutory interest is higher, in which case the statutory interest rate shall apply.
- Mobinova’s claims and the consumer’s obligations vis-à-vis Mobinova shall become due on demand in the event of bankruptcy, suspension of payment or curatorship.
- Mobinova shall be entitled to have the payments made by the consumer go first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest.
- Mobinova shall have the right, without this leading Mobinova to be in default, to refuse an offer for payment, if the consumer designates a different sequence of attribution.
- Mobinova shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.
Article 13 Suspension and Dissolution
- Mobinova shall be authorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event that:
- the consumer does not fulfil or does not fully fulfil his obligations resulting from the agreement.
- after the agreement has been concluded, Mobinova learns of circumstances given good ground to fear that the consumer will not fulfil his obligations. If good ground exists to fear that the consumer will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
- the consumer was asked to furnish security to guarantee the fulfilment of his obligation resulting from the agreement when the contract was concluded and that this security is not provided or insufficient.
- Mobinova shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
- If the Agreement is dissolved, Mobinova’s claims against the consumer shall be forthwith due and payable. If Mobinova suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
- Mobinova shall always retain the right to claim damages.
Article 14 Collection Charges
- If the consumer fails to fulfil one or more of his obligations or defaults on one or more of the obligations, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the consumer. If the consumer remains in default of payment within the set time period, he forfeits an immediately payable fine of 15% on the amount due at that moment. This with a minimum of € 50,-.
- If Mobinova demonstrates that it has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement.
- The reasonable judicial and execution costs possibly incurred shall be borne by the consumer.
- The consumer shall owe interest over the made collection charges.
Article 15 Liability
- If the goods delivered by Mobinova are defective, Mobinova’s liability vis-à-vis the consumer shall be limited to the arrangements made in the present terms and conditions under “Guarantee”.
- When the producer of a defective good is liable for consequential damage, Mobinova’s liability shall be limited to repairing or replacing the defective good, or to returning the purchase price.
- Without prejudice to the above, Mobinova shall not be liable if the damage is attributable to intentional act and/or gross negligence and/or imputable actions, or to injudicious or improper use on the part of the Consumer.
- The limitations of liability for damage contained in the present terms and conditions shall not apply if the damage is due to intentional act or gross negligence on the part of Mobinova or its subordinates.
Article 16 Force Majeure
- Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed by them by virtue of law, a legal action or generally accepted practice.
- In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which Mobinova cannot have any influence but which prevents Mobinova from fulfilling its obligations. Industrial actions at Mobinova shall also be understood to be a circumstance of force majeure.
- Mobinova shall also be entitled to invoice force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible commences after the point in time on which Mobinova should have fulfilled its obligation.
- Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the Agreement without any obligation to pay the opposite party damages.
- Insofar Mobinova has already partially fulfilled his obligations resulting from the Agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled respectively, Mobinova shall be entitled to separately invoice the part already fulfilled or still to be fulfilled respectively. The consumer shall be held to pay this invoice as if it were a separate Agreement.
Article 17 Disputes
- The court in Mobinova’s place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent court. Mobinova shall nevertheless be entitled to submit the dispute to the court deemed competent by the law.
- Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations.
Article 18 Applicable Law
- Dutch law shall apply to each and every Agreement between Mobinova and the consumer. The Vienna Sales Convention shall be explicitly excluded.
- In the event of interpretation of the content and meaning of these general terms and conditions, the Dutch text will take precedence.
Article 19 Changes to the terms and conditions, interpretation and their location
- The present terms and conditions have been filed at the office of the Chamber of Commerce in Amsterdam, the Netherlands under nr. 34105033.
- The Dutch version of these general terms and conditions prevails at all times in case of disputes with regard to the interpretation and purpose of these terms and conditions.
- The most recently filed version shall always apply, or, the case ensuing, the version valid at the time the Agreement was concluded.
Article 20 Return of order
- After receipt of the order, consumer is allowed to dissolve the agreement in writing without mentioning the reason and within 14 days after receipt of the goods.
- Consumer needs to inform Mobinova about the decision to return the product or producs by email to [email protected]
- Consumer needs to return the product(s) within the next 14 days. The consumer bears the shipping costs and the risk of return. The consumer is requested to return the product(s) in the original packing, if possible.
- If a product or products are used, Mobinova is allowed to deduct part of the purchasing price.
- Payments made will be refunded within 14 days from receipt of the order by Mobinova, eventually after deducting the shipping costs.
- Mobinova is not liable for any import duties or BTW/VAT charged by third parties at the moment of import.