GENERAL CONDITIONS - JADE OWL STUDIOS B.V.
Jade Owl Studios B.V.
Registered office in Zeist;
Office at Noordweg 3, (3704 GK) Zeist;
CoC number: 69711852.
Article 1. Definitions:
Contractor: Jade Owl Studios B.V.;
Client: the other party to the Contracted Party;
Agreement: the agreement between the Contractor and the Client;
Offer: any offer of goods made by the Contracted Party via, among other things, the catalogue, the website, the webshop or the tailor-made offer;
Goods: goods, as well as any services offered by the Contractor.
Article 2. Applicability of these conditions
- These general terms and conditions apply to all legal acts of the Contractor. As a result, these terms and conditions also apply to every Offer, quotation, order confirmation and to the Agreement.
- If the Client has accepted without reservation an offer or order confirmation, to which reference is made to these general terms and conditions, this acceptance will also be considered as consent to the application of the general terms and conditions.
- The Client with whom an Agreement has once been concluded under these general terms and conditions accepts the applicability of these general terms and conditions to all subsequent offers from the Contracted Party and Agreements between the Client and the Contracted Party.
- These general terms and conditions also apply to additional Agreements, order confirmations and deliveries. In that case, the Client will be deemed to be familiar with these terms and conditions.
- If one or more provisions in these general terms and conditions are null and void or should be nullified, the other provisions of these general terms and conditions shall remain fully applicable. The Contractor and the Client will then enter into consultations to agree on a new provision to replace the invalid or annulled provision.
- Deviating or different conditions will only apply to the Agreement if and insofar as this has been agreed in writing between the parties.
- The applicability of the Client's general terms and conditions is expressly rejected by the Contractor, unless otherwise agreed.
Article 3. Offers
- All Offers provided by the Contractor are valid for 30 days, unless otherwise indicated.
- The content of all Offers is as accurate as possible, but is not binding on the Contractor. No rights can be derived from printing errors, typesetting errors and typographical errors.
- Offers, quotations and price lists do not automatically apply to repeat orders.
- If the acceptance deviates from the offer included in the Offer, the Contractor is not bound by it. This is not different if the acceptance deviates only on minor points. The Agreement will therefore not be concluded in accordance with this deviating acceptance, unless the Contractor explicitly indicates otherwise and has confirmed this in writing.
Article 4. Conclusion and amendment of the Agreement
- The Agreement is concluded at the moment that the Client has accepted an Offer from the Contracted Party verbally or in writing. The Client will receive written confirmation of the Agreement from the Contracted Party.
- If, during the performance of the Agreement, it appears that for proper performance it is necessary to change and/or supplement the work to be performed, the parties will amend the Agreement in good time and in mutual consultation.
- If the parties agree that the Agreement will be amended or supplemented, the time of completion of the execution and/or delivery may be affected by this. The Contracted Party will inform the Client of this.
- If the execution and/or delivery is delayed due to changes, the Contracted Party will be entitled to an extension of any term stipulated in the Agreement.
- Changes made by the Client to an Agreement and/or order are binding on the Contractor only and only at that moment after the changes have been confirmed in writing by the Contractor.
- All costs that could not be foreseen in an offer and/or that arise because the Client makes changes to the Agreement and/or order will be passed on to the Client. The Contracted Party will inform the Client of this.
Article 5. Prices
- The prices in Offers, quotations, price lists and Agreements are stated in Euros and exclusive of VAT and other government levies, unless explicitly agreed otherwise.
- The prices are exclusive of any shipping costs and any transport costs, unless explicitly stated otherwise.
- A compound quotation shall not oblige the Contractor to deliver part of the goods referred to in the Offer, quotation or Agreement at a corresponding part of the price quoted.
Article 6. Execution of the Agreement
- The Contractor shall perform the Agreement to the best of his knowledge and ability.
- If and insofar as required for the proper performance of the Agreement, the Contractor has the right to have certain work performed by third parties.
- The Client will ensure that all information necessary for the proper performance of the Agreement is provided to the Contractor on time and in the form desired by the Contractor. Information is necessary for the proper performance of the Agreement if the Contracted Party has indicated this or if the Client should reasonably understand this himself. If this information is not provided to the Contracted Party on time or in full, the Contracted Party will have the right to suspend the performance of the Agreement and/or to charge the Client for the additional costs and rates resulting from the delay.
- The Client will ensure that the information provided is correct and complete. The Contracted Party will not be liable for any damage, of whatever nature, resulting from the incorrect and/or incomplete nature of the information provided by the Client to the Contracted Party.
Article 7. Delivery
- After the Agreement has been concluded and confirmed, the Contractor will deliver the ordered goods in accordance with the Agreement. The Contractor is entitled to deliver the ordered goods in instalments. In that case, the Contractor is entitled to invoice the goods delivered separately.
- Delivery times in Offers and quotations are indicative and do not entitle the Client to dissolution or compensation if they are exceeded, unless explicitly agreed otherwise.
- Even if the Contracted Party has given a term for delivery in the Agreement, this term is indicative. A specified delivery term or delivery time is therefore never a deadline. If a term is exceeded, the Client must give the Contracted Party written notice of default.
- The delivery period will only commence after the necessary information has been made available to the Contracted Party by the Client. The Contracted Party is entitled to start the execution and/or to deliver the goods earlier, unless explicitly stated otherwise in the Agreement.
- If, according to the Agreement, an advance payment must be made by the Client, the delivery period will only commence after this payment has been received by the Contracted Party.
- If the goods are delivered, the Contracted Party will charge delivery costs.
- The Client is obliged to purchase the goods at the moment that the Contracted Party delivers them or has them delivered to the Client.
- If the Client refuses to take delivery or fails to provide the information necessary for the performance of the Agreement and/or delivery, the Contracted Party will be entitled to store the goods at the expense and risk of the Client.
- The Contracted Party is not bound by a desired delivery date if the Client states this on an order. The Contracted Party will inform the Client of the actual delivery date when it has been set by the Contracted Party, unless a delivery date has been agreed in the Agreement.
- In the event of a delay in delivery in relation to the delivery date, delivery time or delivery term referred to in the previous paragraph, the Contracted Party will inform the Client of this. Unless the Contractor is guilty of gross negligence, exceeding the delivery date, delivery date and/or delivery time does not entitle the Wedding Party to terminate the Agreement in whole or in part.
- Without prejudice to what is stated elsewhere in these conditions with regard to the delivery term, delivery date and/or delivery time, this term/date/time is extended by the duration of the delay that arises on the part of the Contractor as a result of the Customer's failure to comply with any obligation arising from the Agreement or the cooperation to be required from the Customer with regard to the execution of the Agreement.
Article 8. Investigation, complaints
- Goods are delivered without the right of return, except for what is included in this article.
- The client is obliged to inspect the delivered goods or have them inspected at the moment of delivery or delivery, or in any case shortly after delivery or delivery. In doing so, the Client must examine whether the quality and quantity of the goods delivered corresponds with what has been agreed and meets the requirements that apply to them in normal social (commercial) transactions.
- Any defects or shortages that are visible or that come to light after any investigation must be reported to the Contractor in writing within 5 days of delivery or completion.
- Defects or shortages that cannot be discovered before the passage of time must be reported in writing to the Contractor within 7 days of discovery or after the defect or shortage could reasonably have been discovered, or in any case at the latest within 2 months after delivery.
- The Client must notify the Contracted Party directly and in writing of all complaints, accurately stating the nature and grounds for the complaints. At the request of the Contracted Party, the Client must provide digital photographs showing the complaint.
- If a complaint is made in time in accordance with the above, the Client remains obliged to take delivery of and pay for the goods purchased. Complaints do not suspend the Client's payment obligation.
- The Contracted Party must be enabled to investigate the Client's complaint.
- If the Client wishes to return defective goods, this can only be done after the Contracted Party's prior written consent, in the manner indicated by the Contracted Party. Contractor does not have to accept a return without prior permission.
- If the Contractor judges a complaint to be well-founded, the Contractor will ensure that it is repaired or replaced. In the event of replacement of goods, the Client must return the goods to be replaced to the Contracted Party and provide the property to the Contracted Party.
- Complaints about an invoice sent by the Contracted Party must be reported to the Contracted Party in writing within 7 days of the invoice date. The Client is not permitted to suspend its payment obligation or to set off it against a counterclaim.
- In the absence of complaints about defects and/or shortages as described in this article, the Client cannot claim replacement, repair, compensation and/or dissolution. The right to replacement, repair, compensation and/or dissolution expires in any case 2 months after delivery.
- The right to replacement, repair, compensation and/or dissolution does not apply if a defect has arisen as a result of injudicious or improper use or if, without the written permission of the Contracted Party, the Client or third parties have made changes or tried to make changes to a good or have used it for purposes for which the good is not intended.
Article 9. Payment
- Payment must be made within 14 calendar days after the invoice date. Objections to the (amount of the) invoice do not suspend the payment obligation.
- If payment is not made by the due date, the Client will be in default without a reminder. From that moment on, the Client shall owe an interest of 1% per month, to be calculated cumulatively on the principal sum, without prejudice to the right to statutory (commercial) interest. Parts of a month are hereby regarded as full months.
- In the event of liquidation, bankruptcy or suspension of payment of the Client, the claims against the Client are immediately due and payable.
- If the Contracted Party takes extrajudicial measures in the event of default by the Client, all costs thereof shall be borne by the Client. This concerns at least the costs of the principal sum in accordance with the Decree for the reimbursement of extrajudicial collection costs of 1 July 2012.
- If the Client remains in default of timely payment of a sum of money, he forfeits an immediately payable penalty of 15% on the amount still due.
- The Contracted Party will be entitled to have the payments made by the Client go first of all to reduce the costs as referred to in paragraph 4, then to reduce the fine as referred to in paragraph 5, then to reduce the interest due and finally to reduce the principal amounts due that have been outstanding the longest and the accrued interest. The Contracted Party may, without being in default as a result, refuse an offer of payment if the Buyer designates a different order of allocation. The Contractor may refuse full repayment of the principal sum if the accrued and unpaid interest and costs are not also paid.
- The Client is not permitted to set off any claims against the Contracted Party against that which the Contracted Party has charged the Client.
- The Contracted Party is entitled to suspend the delivery of goods if and as soon as the Client is in default of payment of a sum of money under previous agreements with the Contracted Party.
Article 10. Reservation of title
- All goods supplied by the Contracted Party, including any designs, sketches, drawings, samples, models, films, software, (electronic) files, will remain the property of the Contracted Party until the Client has fulfilled all obligations under all Agreements concluded with the Contracted Party in full.
- The Client is obliged to store the goods delivered subject to retention of title as recognisable property of the Contracted Party with due care.
- The Client is obliged to insure the goods for the duration of the retention of title against fire, explosion and water damage, as well as against theft, and to make the policies of this insurance available for inspection to the Contractor on first demand. All claims of the Client against the insurers under the aforementioned insurances will, as soon as the Contracted Party becomes aware of this, be pledged by the Client to the Contracted Party as additional security for the claims of the Contracted Party against the Client.
- The delivered goods are not subject to pledge or any other form of encumbrance.
- If third parties seize the goods delivered subject to retention of title or wish to establish or enforce rights to them, the Client is obliged to inform the Contracted Party as soon as may reasonably be expected.
- Goods delivered by the Contracted Party, which fall under the retention of title as referred to in this article, may only be resold in the context of normal business operations and may never be used as a means of payment.
- In the event that the Contracted Party wishes to exercise the property rights referred to in this article, the Client already grants the Contracted Party or third parties to be appointed by the Contracted Party unconditional and irrevocable permission to enter all those places where the property of the Contracted Party is located and to take those goods back.
- If the Contracted Party takes back goods under the scope of this article, the value of these goods will be deducted from the outstanding invoice amounts to be paid by the Client. The Contracted Party will be entitled to determine the value of the goods at the time of taking back, taking the value in the course of trade at that time as a starting point.
Article 11. Provision of a guarantee
- If the Contracted Party has good reason to fear that the Client will not fulfil its obligations under the Agreement, the Contracted Party will be entitled, before or during the performance of the Agreement, to suspend the performance of its obligations until the Client, at the request and to the satisfaction of the Contracted Party, has provided security for the performance of all its obligations under the Agreement.
- After the term of security set by Contractor has expired, or by refusal to provide security, Client is in default by operation of law and Contractor can terminate the Agreement without judicial intervention by means of a written statement addressed to Client and take back what has already been delivered, without prejudice to its rights to compensation of costs, interest and damage, including loss of profit.
Article 12. Suspension and dissolution
- In any case, the Contractor is entitled to suspend its obligations in whole or in part and/or to dissolve the Agreement extrajudicially and without any obligation to pay damages if:
- the Client has failed to fulfil a material obligation under the Agreement;
- the Client fails in any statutory obligation or obligation on other grounds towards the Contracted Party;
- the Client has been declared bankrupt, has been granted a moratorium, whether provisional or not, has become subject to a similar arrangement with the Client or the Client has otherwise lost all or part of the free management or free disposal of its assets, all this regardless of whether that situation is irrevocable;
- the Client has offered its creditors an agreement outside bankruptcy, suspension of payments or other similar arrangement;
- the Client has ceased to exist or has been dissolved.
- In addition to the right to suspension and/or dissolution, the Contractor always retains its right to full compensation for the damage it has suffered.
- If the Agreement is dissolved, the Contracted Party's claims against the Client will become immediately due and payable.
Article 13. Liability
- The Client can only hold the Contracted Party liable for direct damage that is the direct result of a shortcoming attributable to the Contracted Party in the fulfilment of its obligations under the Agreement.
- The Contractor is not liable for (i) indirect damage (including but not limited to trading loss, consequential damage, loss of profits, lost savings and/or stagnation damage) and (ii) damage which could reasonably have been prevented and/or limited by the Client. A further condition for liability is that the Client notifies the Contractor of this in writing immediately after discovery of the shortcoming and gives the Contractor a reasonable period to remedy the shortcoming.
- The Contracted Party will not be liable for any damage suffered by the Client and/or a third party insofar as such damage is the result of:
- the use of the delivered goods not in accordance with its nature and purpose;
- failure to observe the regulations and other instructions provided by the Contractor;
- the Client or third parties making or attempting to make changes to a delivered good without the written consent of the Contracted Party;
- infringement of patents, licences or other rights of third parties as a result of information provided by or on behalf of the Client;
- short circuits, water damage, lightning strikes, fire/smoke damage, power failures, disruptions in telecommunications connections and all other causes that cannot be attributed to or are not at the risk of the Contracted Party;
- If the Contractor should be liable for any damage, the liability of the Contractor will be limited to a maximum of the invoice amount, at least to that part of the Agreement to which the liability relates, at least to a maximum of € 5,000. The liability is at all times limited to a maximum of the damage for which the Contractor is insured, or should reasonably have been insured.
- The conditions, exclusions and limitations of liability set out in these general terms and conditions are also stipulated for and on behalf of subordinates of the Contractor and any other parties engaged or used by the Contractor in the context of the conclusion and performance of the Agreement, as well as for and on behalf of those from whom the Contractor obtains goods supplied.
- If and insofar as the Client has insured any risk associated with the Agreement, it is obliged to claim any damage under that insurance and to indemnify the Contracted Party against claims for recourse from the insurer.
- The Client is obliged to indemnify or compensate the Contracted Party in the context of all claims by third parties for compensation of damage, for which the liability of the Contracted Party is excluded in these general terms and conditions in the relationship with the Client.
Article 14. Transfer of risk
- The entire risk of loss, theft and damage with regard to the goods shall pass to the Client at the time of delivery, even if the ownership has not yet been transferred to the Client.
- The goods are also for the account and risk of the Client from the moment that the latter is in default with regard to performing an act relating to the cooperation in the delivery of the goods. The Contracted Party is entitled to keep the goods in that situation in storage (or have them stored) for a reasonable period of time at the expense and risk of the Client.
Article 15. Force majeure
- In the event of a claim of force majeure, a party must inform the other party in writing immediately and in any event before the time fixed for the fulfilment of its obligation of the threat of the shortcoming and the cause thereof.
- Force majeure on the part of the Contractor shall in any case be deemed to exist if the Contractor is prevented after the conclusion of the Agreement from fulfilling its obligations under that Agreement or from preparing for it as a result of war, threat of war, civil war, terrorism, riots, molestation, fire, water damage, floods, strikes, sit-down, lockouts, import and export restrictions, The Contractor must purchase all or part of the necessary materials, raw materials or goods from both the Contractor's business and from third parties, as well as during storage or transport, whether or not under its own management, and furthermore by all other causes, which arise through no fault of the Contractor's sphere of responsibility or risk.
- The Contractor is also entitled to invoke force majeure if the circumstance preventing (further) fulfilment occurs after the Contractor should have fulfilled his obligation.
- Parties may suspend the obligations under the Agreement during the period of force majeure. If this period lasts longer than 30 days, either party is entitled to dissolve the Agreement. If performance is permanently impossible as a result of force majeure, either party may dissolve the Agreement with immediate effect. In the event of dissolution, the Contracted Party will not be obliged to compensate the Client for any damage.
- Insofar as the Contracted Party has already partially fulfilled its obligations under the Agreement at the time of the occurrence of force majeure or will be able to fulfil them, the Contracted Party will be entitled to invoice the part already fulfilled or to be fulfilled respectively separately. The Client is obliged to pay this invoice as if it were a separate Agreement.
Article 16. Intellectual property and copyrights
- Without prejudice to the other provisions of these general terms and conditions, the Contractor reserves the rights and powers to which the Contractor is entitled under the Copyright Act.
- The Client is not permitted to make any changes to the goods, unless expressly agreed otherwise in writing.
- The Offers, quotations, designs, sketches, drawings, films, software and/or other materials or (electronic) files made by the Contracted Party within the framework of the Agreement remain the property of the Contracted Party, regardless of whether they have been handed over to the Client or to third parties and regardless of whether costs have been charged to the Client for this, unless expressly agreed otherwise.
- All documents possibly provided by the Contracted Party, such as Offers, quotations, designs, sketches, drawings, films, software and/or other materials or (electronic) files, are intended exclusively for use by the Client and may not be reproduced, made public or disclosed to third parties by the Client without the Contracted Party's prior permission, unless the nature of the documents provided dictates otherwise.
- The Client indemnifies the Contractor against claims by third parties relating to intellectual property rights on materials or data provided by the Contractor that are used in the performance of the Agreement.
- The Contractor reserves the right to use any knowledge gained through the performance of the Agreement for other purposes, insofar as no confidential information is brought to the knowledge of third parties.
Article 17. Confidentiality
- The Client must treat the data and/or information from the offer documents and/or the Agreement confidentially and may not use them for its own use or by third parties or disclose them to third parties. This also applies to all (business) data of the Contractor or all information received from the Contractor in connection with the Agreement. The Client will ensure that the data and information referred to will not be copied, shown to third parties, disclosed or used other than with the written consent of the Contracted Party, unless expressly provided otherwise in the Agreement.
- In the event of a breach of the obligation set out in the previous paragraph, the Client will owe the Contracted Party a penalty of € 10,000, payable immediately and not subject to judicial moderation, without prejudice to the Contracted Party's right to claim damages.
- If, on the basis of a statutory provision or a judicial decision, the Contracted Party is obliged to provide confidential information to third parties designated by law or by the competent court, and the Contracted Party cannot invoke a right to refuse to give evidence recognised or permitted by law or by the competent court, the Contracted Party will not be obliged to pay damages or compensation and the Client will not be entitled to dissolve the Agreement on the basis of any damage resulting from this.
Article 18. Transfer
- In the event that the Contracted Party transfers its rights and obligations under these general terms and conditions to a third party, the Contracted Party will notify the Client of this in good time.
- The Client is not authorised to transfer its rights and obligations under these general terms and conditions without the Contractor's prior written consent.
Article 19. Other
- These general terms and conditions may only be amended or supplemented in writing.
- If one or more provisions of these general terms and conditions are null and void or should be nullified, the other provisions of these general terms and conditions shall remain fully applicable. If any provision of these general terms and conditions or of the Agreement is not legally valid, the parties shall negotiate the content of a new provision, which provision shall approximate the content of the original provision as closely as possible.
- The Agreement and the general terms and conditions (including all disputes relating to the Agreement or general terms and conditions) are exclusively governed by Dutch law. The Vienna Sales Convention does not apply.
- All disputes arising in connection with the Agreement or these terms and conditions about the existence and validity thereof, including will be settled by the competent court in the first instance of the court Midden-Nederland, Utrecht location. This is only different if mandatory jurisdiction rules would stand in the way of this choice.