Terms of delivery

Contents

Article 1 - Definitions
Article 2 - Identity of the User
Article 3 - General
Article 4 - Quotations and offers
Article 5 - Contract duration; delivery periods, execution and amendment of the agreement; price increases
Article 6 - Suspension, dissolving and premature termination of the agreement
Article 7 - Complaints and returns
Article 8 - Force majeure
Article 9 - Payment and collection expenses
Article 10 - Retention of title
Article 11 - Guarantees
Article 12 - Liability
Article 13 - Period of limitation
Article 14 - Risk transfer
Article 15 - Indemnity
Article 16 - Intellectual property
Article 17 - Applicable laws and disputes

Article 1 Definitions

In these terms and conditions the following definitions apply:
User: the natural person or legal entity offering products and/or goods at a distance to the Counterparty;
Counterparty: a natural person acting as a professional or business and concluding an agreement at a distance with the User;
Day: a calendar day;
Durable medium: any means that enables the Counterparty or User to store information directed to him personally in such a way that future consultation and unaltered reproduction of the stored information is made possible.
Agreement at a distance: an agreement whereby in the context of the User's organised system for the distance selling of products and / or services, up to and including the conclusion of the agreement, exclusive use is made of one or more means of distance communication;
Means of distance communication: a means which can be used for concluding an agreement, without the Counterparty and User meeting in the same space at the same time.

Article 2 Identity of the User

Thom Sales B.V.
Business address: Laan van Europa 390, 3317DB Dordrecht
Postal address: Rootven 19, 5531 MB, Bladel
The Netherlands
E-mail address: [email protected]
Telephone number: +31 85-9020036
Chamber of Commerce number: 87322765  
VAT number: NL864264872B01

Article 3 General

• These general terms and conditions apply to every offer, quotation and agreement between Thom Sales B.V., hereinafter referred to as: "User", and a Counterparty on which the User has declared these terms and conditions to be applicable insofar as these terms and conditions are not expressly deviated from in writing.
• The present terms and conditions are also applicable to agreements with the User in which third parties shall be involved by the User in their execution.
• These general terms and conditions have also been written for the employees of User and its management.
• The applicability of any purchase conditions or other conditions of the Counterparty are explicitly rejected.
• Should one or more stipulations in these general terms and conditions at any moment become wholly or partially void or invalid, then the remainder of these general terms and conditions shall continue to apply in full. In that case, User and Counterparty shall consult with each other in order to agree on new conditions for the replacement of the void or invalid conditions, whereby every effort shall be made to take into account the purpose and intent of the original conditions.
• Should any ambiguity arise regarding the explanation of one or more conditions belonging to these general terms and conditions, then such explanation shall be "in the spirit" of these conditions.
• Should a situation arise between the parties which is not covered by these general terms and conditions, then such situation must be evaluated in the spirit of these general terms and conditions.
• Should the User not require strict adherence to these conditions at all times, this does not give grounds to infer that its conditions are not applicable or that the User waives the right in any way whatsoever to require strict adherence to the conditions contained in these general terms and conditions in other cases.

Article 4 Quotations and offers

• All the User's quotations and offers are without obligation, unless an acceptance term has been stated in the quotation. A quotation or offer becomes invalid if the product referred to by the quotation or offer becomes no longer available in the intermediate period.
• The User cannot be bound to his quotations or offers if the Counterparty could have reasonably understood that the quotations or offers, or a part thereof, include an obvious mistake or apparent written error.
• Prices quoted in a quotation or offer include VAT and other government taxes as well as other expenses connected with the agreement, including shipping and administrative expenses, unless indicated otherwise.
• Should the acceptance (whether or not on the subordinate points) deviate from the proposal contained in the quotation or offer, then the User shall not be bound thereby. In that case, the agreement shall not be concluded in compliance with such deviating acceptance, unless the User indicates otherwise.
• A composite quotation does not bind the User to the execution of a part of the assignment for a proportionate part of the quoted price. Offers or quotations do not automatically apply to future orders.
• All quotations, photographs, product specifications and prices on one of the User's websites are subject to printing and typographical errors. No liability is accepted for the consequences of such printing and typographical errors.

Article 5 Contract duration; delivery periods, execution and amendment of the agreement; price increases

• The agreement between the User and Counterparty is concluded for an indefinite period, unless the nature of the agreement dictates otherwise or if he parties explicitly agree otherwise in writing.
• The agreement is binding for the Counterparty as soon as this agreement has been accepted without reservation by the User in any form and an order confirmation has been sent to the Counterparty by e-mail or by post.
• Should, for the completion of specified works or for the supply of certain goods, a period be agreed or submitted, then such can never be considered as a final deadline. In the event that a period is exceeded, the Counterparty shall notify the User of default in writing. In this case, the User must be given a reasonable period for the subsequent fulfilment of the agreement.
• The User reserves the right to have certain works carried out by third parties.
• The User is entitled to execute the agreement in various phases and to invoice each executed phase separately.
• Should the agreement be executed in phases, the User may suspend the execution of those parts which belong to a following phase until the Counterparty has approved the results of the previous phase in writing.
• Should the User require data from the Counterparty for the execution of the agreement, then the implementation period shall not commence before the Counterparty has made such data correctly and fully available to the User.
• Should it become apparent during execution of the agreement that it is necessary for the proper execution thereof to amend or add to the same, then parties shall timely and in mutual consultation proceed with amendment of said agreement. Should the nature, scope or content of the agreement, whether or not at the request or indication of the Counterparty, the competent authorities et cetera, be amended and the agreement thereby changed in a qualitative and / or quantitative manner, then this can have consequences for that which was originally agreed upon. This can result in an increase or decrease in the amount originally agreed upon. The User will, as far as possible, provide a quotation in advance. An amendment to the agreement can give rise to a change in the originally submitted execution period. The Counterparty accepts the possibility of amendment of the agreement, including adjustments to the price and the execution period.
• Should the agreement be amended, including an addition, then the User reserves the right to execute solely after permission has been granted by the User’s authorised person and the Counterparty has agreed to the price submitted for its execution and other conditions, including the time to be determined for the execution thereof. Not, or not immediately, executing the amended agreement shall also not be considered default on the part of the User and shall not be considered as grounds for the Counterparty to terminate the agreement.
• Without thereby being in default, the User may refuse a request for amendment of the agreement, should this qualitatively and / or quantitatively bear consequences for instance for the works to be executed or the goods to be delivered.
• Should the Counterparty be at default in the proper compliance of his obligations towards the User, then the Counterparty is liable for all damages (including expenses) on the part of the User which may arise, either directly or indirectly.
• Should, on concluding the agreement, the User agree on a certain price, then the User is nevertheless entitled to increase the price under the following circumstances, also if the price was originally not indicative.
  • If the price increase is a consequence of an amendment of the agreement;
  • If the price increase arises from an authorisation assigned to the User or an obligation of the User by law;
  • In other cases, in the understanding that the Counterparty does not act as a professional or business, the User reserves the right to dissolve the agreement by means of a written declaration, if the price increase amounts to more than 10% and occurs within three months of the conclusion of the agreement, unless the User is still prepared to execute the agreement on the basis of that originally agreed upon, or if it is stipulated that the delivery shall take place more than three months after purchase.

Article 6 Suspension, dissolving and premature termination of the agreement

• The User is authorised to suspend compliance with the obligations or to dissolve the agreement with immediate effect, if:
  • the Counterparty does not, does not fully, or does not timely fulfil the obligations of the agreement;
  • after conclusion of the agreement, the User learns of circumstances which provide good grounds to fear that the Counterparty shall not comply with the obligations;
  • on conclusion of the agreement, the Counterparty is requested to provide surety for the fulfilment of his obligations arising from the agreement and when said guarantee is not forthcoming or is insufficient;
  • due to delay on the part of the Counterparty, it can no longer be expected that he shall comply with the original conditions agreed upon in the agreement;
  • circumstances arise which are of such a nature that compliance with the agreement is impossible or if unaltered maintenance of the agreement cannot reasonably be expected of the User.
• If dissolving the agreement is attributable to the Counterparty, then the User is entitled to compensation of damages, including expenses incurred either directly or indirectly.
• If the agreement is dissolved, then claims brought by the User against the Counterparty shall be due and payable immediately. If the User suspends compliance with the obligations, he retains his claims arising from the law and the agreement.
• If the User proceeds with suspension or dissolving of the agreement on the grounds mentioned in this article, then he is by no means bound on that basis to compensation of damages and expenses arising there from by whatever means or full compensation, whilst the Counterparty, on account of default, is liable for damages or full compensation.
• If the agreement is terminated prematurely by the User, then the User shall in consultation with the Counterparty, ensure the transfer to third parties of works yet to be executed. This applies unless termination is attributable to the Counterparty. Unless premature termination is attributable to the User, the costs for transfer shall be borne by the Counterparty. The User shall as far ad possible give prior notification to the Counterparty in relation to the magnitude of these expenses. The Counterparty is bound to pay these expenses within the period stated by the User, unless the User indicates otherwise.
• In the event of liquidation, of (a request for) suspension of payments or bankruptcy, of sequestration - if and insofar as sequestration is not lifted within three months - at the expense of the Counterparty, of debt rescheduling or any other circumstance whereby the Counterparty can no longer freely dispose of his assets, then the User is free to terminate the agreement with immediate effect, or to cancel the order or agreement, without any obligation on his part for payment of any damages or compensation whatsoever. Claims by the User on the Counterparty shall in that case be due and payable immediately.
• If the Counterparty fully or partially cancels a placed order, then goods ordered or prepared for that purpose, plus any related supply, disposal and delivery expenses and working hours reserved for the execution of the agreement, shall be borne by the Counterparty.
• The User must deliver an order within 30 days of an order being made. If the User does not comply herewith, then the Counterparty may cancel the purchase agreement at no expense.

Article 7 Complaints and returns

• The Counterparty is obliged to check the delivered goods immediately upon receipt for defects, defects, damage, deviations in quantities or missing or incorrectly delivered products and to report this to the User within 72 hours after receipt.
• If a complaint is not reported to the User within the period referred to in the previous paragraph, the goods are deemed to have been received in good condition and to comply with the agreement.
• No complaints can be made with regard to minimal colour differences and minor colour deviations.
• No complaints are possible with regard to goods that, after receipt by the counterparty, have changed in nature and/or composition or have been processed in whole or in part or are no longer in their original packaging.
• Complaints do not suspend the possible payment obligation of the Counterparty.
• Products that are returned by the Counterparty without the prior consent of the user need not be accepted by the User.
• Return will take place in a manner to be determined by the User and in the original packaging or packaging.
• The Counterparty must enable the User to investigate the complaint and in this context provide the User with all information relevant to the complaint. If return shipment is necessary for the investigation of the complaint, this will be at the expense and risk of the Counterparty, unless the complaint subsequently turns out to be well-founded.
• If a defect is reported later, the Counterparty is no longer entitled to repair, replacement or compensation, unless a longer period results from the nature of the good or the other circumstances of the case.
• If it is established that an item is defective and a complaint in this respect has been made in time, then the User will replace the defective item within a reasonable period of time after it has been returned or, if it cannot reasonably be returned, a written notification of the defect by the Counterparty, at the discretion of the User, or ensure its repair or pay the Counterparty replacement compensation. In the event of replacement, the Counterparty is obliged to return the replaced item to the user and to provide the user with the ownership thereof, unless the User indicates otherwise.
• If it is established that a complaint is unfounded, the costs incurred as a result, including the research costs, on the part of the User as a result, will be entirely at the expense of the Counterparty.

Article 8 Force majeure

• The User is not bound to fulfil any obligation towards the Counterparty if he is prevented from doing so as a result of circumstances which are not attributable to negligence, and are not attributable to him either lawfully, by a legal act, or by generally prevailing attitudes.
• In these General terms and conditions, force majeure is understood to mean, in addition to that included in the law and jurisprudence, all external causes, whether foreseen or not, which the User is unable to influence, but which make it impossible for the User to fulfil his obligations. Moreover, the User reserves the right to invoke force majeure if the circumstances hampering the (further) fulfilment of the agreement commence after the User should have fulfilled his agreement.
• During the period of force majeure, the User may suspend obligations arising from the agreement. Should this period continue for more than two months, then either party reserves the right to dissolve the agreement, without an obligation to pay damages to the other party.
• If, at the moment of commencement of force majeure, the User has already partly fulfilled or will be able to fulfil his obligations arising from the agreement, and that which is fulfilled or to be fulfilled represents an independent value, then the User is entitled to separately invoice that which has been fulfilled respectively that which is to be fulfilled. The Counterparty is bound to pay said invoice as if there were a separate agreement.

Article 9 Payment and collection expenses

• Payment must be made prior to dispatch, in a manner to be indicated by the User and in the currency invoiced, unless the User has indicated otherwise. The User reserves the right to invoice periodically.
• Should the Counterparty be found to remain in default as to timely payment of an invoice, then the Counterparty shall be in default by operation of the law. The Counterparty shall then be liable to pay interest. In the case of customer purchase, interest shall be equal to the legal interest. In all other cases, the Counterparty shall be obliged to pay interest at 1% per month, unless the legal interest is higher, in which case the legal interest shaill be payable. The interest over the amount payable shall be calculated from the moment that the Counterparty is found to be in default until the moment of payment of the full amount payable.
• The User is entitled to have the payment made by the Counterparty first applied to settle any costs and subsequently the accumulated arrears interest and finally the principal sum and accrued interest.
• The User may, without being found to be in default, refuse an offer for payment, if the Counterparty indicates a different sequence for the calculation of the payment. The User may refuse full payment of the principal sum, if the accumulated arrears interest and collection expenses are not also settled.
• Claims against the amount of an invoice do not suspend payment obligations.
• Should the Counterparty be in default or negligent in (timely) fulfilment of his obligations, then all reasonable expenses for obtaining payment outside court shall be borne by the Counterparty. Out of court expenses shall be calculated on the basis of current Dutch debt collection custom, the current calculation method being in accordance with Rapport Voorwerk II (report of the Dutch Association for the Judiciary). If the User has incurred higher expenses than were reasonably necessary, then the actual costs shall be considered for compensation. Any judicial and enforcement costs shaill also be recovered from the Counterparty. The Counterparty shall also pay interest on the execution expenses incurred.

Article 10 Retention of title

• All goods delivered by the User, in the context of the agreement, remain the property of the User until all obligations arising from agreement(s) concluded with the User have been met.
• Goods delivered by the User, pursuant to clause 1 and falling under retention of title, may not be resold and may never be used as a form of payment. The Counterparty is not authorised to pledge or in any way encumber goods that are subject to retention of title.
• The Counterparty must do all that can reasonably be expected of him to safeguard the User's property rights.
• If third parties seize delivered goods which are subject to retention of title, or intend to confer or assert such rights thereon, then the Counterparty is obliged to inform the User immediately of the same.
• The Counterparty binds himself to insure and to continue insurance of goods which are subject to retention of title against fire, explosion and water damage, as well as against theft, and to submit the insurance policy at the initial request of the User. In the event of payment of the insurance, the User is entitled to these payments. The Counterparty undertakes, insofar as is needed, towards the User to provide assistance in everything in this respect that is necessary or (may be) required.
• In the event that the User wishes to exert his property rights stated in this article, the Counterparty grants in advance unconditional and irrevocable consent to the User, and to third parties to be appointed by the User, to enter all areas where the property of the User is situated and to take back such property.

Article 11 Guarantees

• The goods to be delivered by the User comply with the usual requirements and standards which at the time of delivery can reasonably be required and for which they are intended when subject to normal use in the Netherlands. The guarantee stated in this article is applicable to goods intended for use in the Netherlands. For use outside the Netherlands, the Counterparty must himself verify if use thereof is suitable for the intended use at that place and if this complies with the conditions applied. In that case, the User may stipulate other guarantee and general terms and conditions regarding goods to be delivered or works to be executed.
• The guarantee stated in clause 1 of this article only applies to the bicycle for a period of 10 years, for the frame and front fork, 5 years guarantee for rusting of the paintwork from the inside and 1 year guarantee for parts, except the tyres after delivery, unless the nature of the delivered goods dictates otherwise or the parties agree otherwise. If the guarantee provided by the User concerns goods manufactured by a third party, then the guarantee is limited to the guarantee given by the manufacturer of the goods, unless otherwise stated. After termination of the guarantee period, costs for repair or replacement, including administration, dispatch and delivery expenses, shall be borne by the Counterparty.
• All forms of guarantee are cancelled if a fault arises as a consequence of or arising from injudicious or improper use, or use after the expiry date, improper storage or maintenance thereof by the Counterparty and / or by third parties without prior written permission of the User, the Counterparty or third parties have made changes or attempted to make changes, have mounted other matters thereto which should not be mounted thereto, or if these were processed or modified in any other manner than that stipulated. The Counterparty may also make no claim on the guarantee if the fault arises from or is a consequence of circumstances that the User cannot influence, including weather conditions (such as for instance, but not limited to, extreme rainfall or temperatures) et cetera.

Article 12 Liability

• Should the User be liable, then said liability is limited to that which is covered by this clause.
• The User is not liable for damages, of whatever nature, arising from assumptions made by the User based on faulty and / or incomplete data provided by or on behalf of the Counterparty.
• The User is solely liable for direct damages.
• Direct damages are exclusively understood to mean:
  • reasonable expenses for the determination of the cause and scope of the damages, insofar as such determination is related to the damages in the context of these general terms and conditions;
  • any reasonable expenses made for the elucidation of the defective performance of the User, insofar as these are attributable to the User;
  • reasonable expenses, made for the prevention or limitation of damages, insofar as the Counterparty can prove that such expenses have given rise to limitation of direct damages as intended in these general terms and conditions.
• The User can never be held liable for indirect damages, including consequential damages, loss of profit, missed savings and damages arising from business stagnation or other stagnation. In the case of consumer purchase, the scope of this provision shall be limited to that permitted under Article 7:24 section 2 of the Dutch Civil Code.
• Should User be liable for any damages whatsoever, then the liability of the User is limited to no more than the invoice value of the order, at least to that part of the order related to the liability.
• The liability of the User is in all cases limited to the amount paid by his insurer in the case concerned.
• The liability provisions included in this article do not apply if the damages are attributable to intent or gross negligence of the User or his line managers or subordinates.

Article 13 Period of limitation

• In deviation from the legal periods of limitation, the period of limitation of all claims and pleas made towards the User and third parties involved in the execution of an agreement for the User is one year.
• That stipulated in clause 1 does not apply to judicial claims and pleas based on facts which would justify the argument that the goods delivered do not fulfil the agreement. Such claims and pleas lapse after a period of two years after the Counterparty has notified the User of such non-conformity.

Article 14 Risk transfer

• The risk of loss, damages or depreciation is transferred to the Counterparty as soon as the goods come under the control of the Counterparty.

Article 15 Indemnity

• The Counterparty indemnifies the User for any claims by third parties, which suffer damages connected with the execution of the agreement, the cause of which is attributable to others than the User.
• Should the User be addressed by third parties for that reason, then the Counterparty is bound to aid the User both outside and inside court and to immediately do that which could be expected of him in that case. Should the Counterparty remain in default in taking adequate measures, then the User is, without notice of default, entitled to take action himself. All costs and damages on the part of the User and third parties arising there from, shall be for the account and risk of the Counterparty.

Article 16 Intellectual property

• The User retains the rights and powers invested in him pursuant to the Copyright Law and other intellectual rules and regulations. User reserves the right to make use of knowledge acquired by him through the execution of an agreement for other purposes, insofar as no strictly confidential information belonging to the Counterparty is passed on to third parties.

Article 17 Applicable law and disputes

• Dutch law is exclusively applicable on all legal relationships to which the User is a party, also if an agreement is wholly or partially executed abroad or if the party involved in the legal relationship has his place of residence there. The applicability of the Vienna Convention is excluded.
• Parties shall only make an appeal to the court after they have done their utmost to reach mutual settlement of a dispute.