GENERAL TERMS AND CONDITIONS OF NOMENTA INDUSTRIES INTERNATIONAL B.V. AND THE WEBSITE KOODUU.COM
The following words, when used in these terms and conditions (hereinafter: “Terms and Conditions”) shall be defined as follows:
The User: NOMENTA INDUSTRIES INTERNATIONAL B.V. and registered trademark KOODUU, incorporated in (2011 MR) Haarlem, Kenaupark 33-2;
Counterparty: every natural person or legal entity acting in the capacity of a consumer or a non-consumer, that the User supplies, enters into an agreement with or is otherwise commercially engaged with;
Agreement: any agreement for the sale of goods, or otherwise that exists between the User and the counterparty;
Offer: any statement by The User communicating the possibility of an agreement on the basis of a specific price or quantity of products;
Order: each order sent to and/or received by The User for products in any form from the Counterparty;
Dissolution/to Dissolve: the termination of the agreement on the basis of a fault (in Dutch: “ontbinding/te onbinden”);
Force majeure: an occurrence or situation outside the control of the parties through which the non-attributable impossibility to fulfil an obligation arises, thereby releasing the party in question from this obligation (in Dutch: “overmacht”);
To Offset: Offsetting is a specific legal method of cancelling commitments. A debtor can set off his debt if he has a claim from the other party that corresponds to his debt (in Dutch: “verrekening, om te verrekenen”);
To Suspend: (A right of) Suspension refers to the right of a debtor who has a claim on his creditor to Suspend the fulfilment of his obligation to that same debtor until his claim is settled. (in Dutch: “opschorting”);
Intentional Act/ Gross Negligence: acting or omitting with the intent on the negative outcome or an objectionable degree of culpability that borders intent and includes gross negligence (in Dutch: “opzettelijk handelen / grove schuld”);
Reasonableness and Fairness: standards of reason and equity (in Dutch: “redelijkheid en billijkheid;
Unreasonably Onerous: burden to such an extent to be unreasonably onerous (in Dutch: “onredelijk bezwarende”); and
Withdrawal period: the period within which a consumer can make use of his right of withdrawal.
Representations made by the User regarding terms for delivery or performance of the agreement are meant as estimations and shall in no way be construed as definitive terms for the timely performance.
When it becomes clear that performance within the estimated term cannot be achieved the User shall notify the Counterparty of the delay and will, if possible, provide a new estimated time for performance.
When an Order is received that relates to items that are on stock the User shall send to the Counterparty the items as soon as possible after confirmation.
In case a Counterparty fails to inform the User of the address to which the items are to be sent, refuses delivery or fails to receive the items the User shall be entitled to charge the Counterparty with the (additional) costs made for storage and delivery. All risks with regards to loss or damage of the items shall be on the Counterparties account.
If the Counterparty has indicated a desired date for delivery the User shall strive for delivery of the items on that date, however, failure to deliver on that date shall in no way be considered as a (partial) failure to perform according to the agreement.
Delivery and thus performance according to the Agreement shall be considered to have taken place if the Counterparty has refused the goods, provided it did not have a legitimate reason for refusal.
If the performance of the User of the Agreement can be divided up into different parts then the User shall be entitled to Suspend its performance until after payment has been made in full by the Counterparty.
If the Counterparty notifies the User in writing that it is in default with regards to the performance and in that notice of default gives the User a final term for performance, performance by the User within the term set shall be considered as fully in accordance with the agreement. After this timely performance, the User shall not be held liable for damages, interests, or costs of any kind.
The Counterparty shall supply the User with all information necessary to perform the Agreement as soon as possible and upon first request. The Agreement and the User’s performance shall be based on the information provided. Under no circumstance can the User be held liable for any failure or damage which relates, directly or indirectly, to the incorrectness or incompleteness of information supplied by the Counterparty. The Counterparty warrants that the information that he supplies is correct and complete, regardless of the origins of the information.
If the Counterparty who did not act as a consumer entering into the Agreement cancels the delivery of products or services, this can only be done in writing by registered mail, with a pre-existing statutory right to do so or acquiescence in writing from the User, and - unless The User decides not to do so - the following costs will be charged:
- up to 30 days before the planned date of physical delivery 50% total amount due based on the Order/ Agreement;
- from 30 to 14 days before the planned date of physical delivery 70% of the total amount due based on the Order/ Agreement
- from 14 to 7 days before the planned date of physical delivery 90% of the total amount due based on the Order/ Agreement
- from 7 days before the planned date of physical delivery 100% of the total amount due based on the Order/ Agreement.
These Terms and conditions apply to all offers made by the User and all agreements entered into by the User.
The applicability of terms and conditions from the Counterparty are wholly rejected by the User, unless the User has stated differently in writing.
Any deviation from these Terms and Conditions are valid only when agreed upon in writing and apply only to the specific Offer(s) or Agreement(s) on which the written agreement to deviate applies.
Any acceptance of any Offer by the Counterparty shall lead to these Terms and Conditions being binding upon them.
The Counterparty is not allowed to sell the products directly or indirectly through public third party internet platforms, like Amazon, Marktplaats, Bol.com, Alibaba etc. unless the User has given its permission in writing.
Agreement after written acceptance
Offers made by the User are non-binding upon it. Only after explicit written acceptance of an Order the User is bound by the Agreement.
Prior to the conclusion of the Agreement the User shall not be considered to be bound to enter into an agreement, or to proceed with negotiations regardless of the specific circumstances of the case.
Prior to the conclusion of the Agreement by written acceptance of the order, no action or representation the User makes shall be construed or understood to mean that the User shall enter into an Agreement. Under no circumstance shall the User be held liable on the basis of precontractual liability (culpa in contrahendo).
Offers that consist of more than one separable part shall be considered as separate Offers. Acceptance of one part of such an offer shall in no way imply or bind the User to deliver on all parts.
If the Offer is not fully excepted by the Counterparty, without precondition, amendment or deviation, but an implicit counteroffer is made, the User shall only be bound to the terms of the Offer and not the counteroffer, unless the User confirms such precondition, amendment or deviation in writing.
Any representations made concerning an Offer by the User regarding characteristics of its products shall in no way be construed as guarantees or as concretely representative of the products offered. If the products delivered in the performance of the agreement by the User differ from the representations made, either in composition, in quality, in quantity, in material, in functionality or in any other way then the User shall still be considered to have performed in accordance with the Agreement unless the difference is such that the products can no longer be considered as similar in purpose and use to the products as represented. Representations that may not be considered as guarantees include but are not limited to the listed weight, dimensions, functionality, reach, volume, wattage, brightness, and durability.
Prices mentioned in Offers do not include VAT or other taxes and levies unless otherwise specified by the User in writing.
No warranty, no additional rights
The User does not provide a warranty on any of its products unless explicitly stated otherwise in writing in relation to the specific agreement with the Counterparty.
All statements from the User regarding the use of its products can only be considered as suggestions, the User does not guarantee or warrant that the products can be used in that manner.
The applicability of articles 7:17 and 7:18 of the Dutch Civil Code (“BW”) is expressly rejected with regards to the Agreement between the User and the Counterparty who did not act as a consumer entering into the agreement. Claims of non-conformity are invalid.
These Terms and Conditions do not intend to, nor shall they be construed in a manner that they grant rights to the Counterparty in addition to those rights that follow directly from the protections offered by Dutch law. The User shall never be obliged on the basis of these Terms and Conditions to perform an act that it would not have already been obliged to perform on the basis of provisions of mandatory Dutch law (in Dutch: dwingend recht).
Duty to report a lack of conformity
Any Counterparty is obliged to inspect whether the User has performed according to the agreement upon delivery by the User. Once delivery has been made and no complaint has been received within a reasonable period the Counterparty shall be deemed to have accepted performance of the User as complete and correct. After this period, the Counterparty shall no longer be able to file a claim on the basis of a failure or a shortcoming in the performance by the User. Article 6:89 BW applies.
A complaint received after eight days have lapsed since delivery of the goods shall be considered as being made too late if the Counterparty did not act as a consumer entering into the Agreement.
A complaint received after two months have lapsed since delivery of the goods shall be considered as being made too late if the Counterparty did act as a consumer entering into the Agreement.
If the inspection by the Counterparty leads it to conclude there is a shortcoming, a default, a defect, a failure, or any other issue then it is obliged to report this to the User as soon as possible in writing. If the Counterparty requests or claims repair or replacement of any products delivered the products must be returned to the User fully and completely in the original packaging, with all things that accompanied the products. Any unauthorized work or repairs after detection of defects, or damage caused after detection of defects, as well as encumbrance or the sale of the products after detection of defects, will render the rights based on the complaint made useless, and the complaint will be considered as not having been made.
The rights of the Counterparty that lapse upon a failure to report the non-conformity include but are not limited to the right to Dissolve and the right to claim damages.
Complaints filed in time do not give the Counterparty the right to Suspend performance or to partially Dissolve the Agreement.
If the complaint has been rightly made the User shall have the right to handle the complaint as it sees fit, either by offering repair, replacement or by requiring the return of the products delivered and perform anew according to the original terms of the Agreement.
A complaint made by a Counterparty who did not act as a consumer entering into the Agreement must be submitted in writing, with an adequate substantiation of the complaint, through a registered letter.
Circumstances of Force majeure
Circumstances which temporarily or permanently hinder or make impossible the performance of the Agreement by the User and which lie out of its control, a situation of Force majeure, give the User the right to Dissolve the Agreement without default or notice by sending a written statement to the Counterparty to that effect.
In case a situation of Force majeure occurs, the User shall not be held liable for damage, regardless of its nature, causality, the identity of the injured party or the extent of the damage suffered. If the Counterparty has made guarantees or representations about the performance or the timing thereof by the User to a third party and the third party suffers damage as a consequence of the non (or untimely) performance for which it holds the User liable the Counterparty shall indemnify the User in full, including for all costs that the User makes in relation to its defense.
In case a situation of Force majeure occurs, the User can extend the period for performance for a period to six months at a maximum. The Counterparty shall not be allowed to demand full or partial Dissolution of the Agreement until the situation of Force majeure has caused the period for performance under the agreement to be longer than six months in total.
In case a situation of Force majeure occurs, any Dissolution of the Agreement or part thereof shall under no circumstance affect a part of the Agreement that has already been executed by the User.
Upon Dissolution of part of the Agreement due to a situation of Force majeure the User shall have the right to invoice for the part of the Agreement that remains in force.
Circumstances which for the purposes of this article will be understood as a situation of Force majeure include a national, international or global emergency, situation of upheaval, turbulence or distress and include the imposition of government measures that materially interfere with the capacity to perform its obligations or increase the cost of performance according to the Agreement for the user such (50% or more) that performance can no longer be reasonably expected. A situation of Force majeure may be caused by weather events, by devastation caused by fires or floods, by political or diplomatic measures such as sanctions or trade tariffs, by war, by famine, by a systematic shortage of power, by disease, by other emergency related to human health or by any other cause of interruption that is not part of the usual course of business.
The right to Dissolve
The User shall have the right to Dissolve the Agreement without notice, default or a court ruling being required if an application for the bankruptcy of the Counterparty is filed, if the Counterparty offers a settlement privately to their creditors (including to the User), if a court grants a stay of payments to the Counterparty, if the Counterparty is liquidated, if the Counterparty ceases their activities, if the Counterparty goes through a chapter 11 bankruptcy or an equivalent program, or if the counterparty is accepted into a Dutch or a foreign corporate or private debt relief/restructuring program.
The User shall not be liable for any damage suffered by the Counterparty who did not act as a consumer entering into the Agreement of any kind if they are not caused by an Intentional Act or Gross Negligence on the part of the User.
The Counterparty who did not act as a consumer entering into the Agreement indemnifies the User for all third-party liability claims for damage related to the Agreement. The indemnification does not cover claims that are based on damage caused by an Intentional Act or Gross Negligence on the part of the User insofar as the Counterparty has shown, to the User’s satisfaction, that it is not also (partly) liable for the damage.
The User shall not be liable for any damage suffered by the Counterparty who did not act as a consumer entering into the Agreement if the damage is caused in whole or in part by an error or an omission from a third party supplier or a partner from the User. Such an error or omission shall in no way affect the status of the performance according to the Agreement by the User.
Under any circumstance the liability of the User for damages suffered by the Counterparty who did or did not act as a consumer entering into the Agreement is limited to a maximum of the total invoiced amount excluding VAT or the amount that shall be invoiced if an invoice was not sent yet, limited to a maximum of €000,- or limited to a maximum of the amount covered by the User’s liability insurance, whichever is the lesser. Related claims, which for example relate to the same Agreement, the same product type or the same Counterparty shall be added together for the purposes of this maximum.
Claims of any kind and for any reason against the User must be made within the term one year and a day from the relevant start day for the legal statute of limitations. The Counterparty expressly waives any longer period of an applicable statute of limitations.
The right to Suspend
When a Counterparty does not perform according to its obligations from the Agreement in a full and timely manner the User has the right to Suspend performance of any of the obligations it has towards the Counterparty.
The Counterparty is still liable for all damage suffered by the User because of the failure to perform.
With regards to the Counterparty who did not act as a consumer entering into the Agreement the liability of the Counterparty for damage suffered by the User shall include, but not be limited to a fixed compounding yearly interest of 15% for only the delay in timing. In addition, that Counterparty will be liable to compensate the User for the full costs of storage, of investigations into the amount of damage suffered and of legal assistance related to enforcement of the Agreement and recovery of damages.
Retention of title and rights
The User shall remain the owner of the goods subject to the Agreement until payment has been made by the Counterparty in full, unless the User accepts a partial payment for the transfer of ownership of particular goods (a part of the total) in writing.
The Counterparty will inform any bailiff, bankruptcy trustee or other third party of the retained ownership and rights of the User if attempts are made to place an attachment on the goods, to auction the goods or to take them into custody.
Payments made to the User by the Counterparty shall first be attributed to interest, then to collection costs, then to other damage suffered by the User for which the Counterparty is liable and only lastly towards the payment for the goods.
The Counterparty is obliged to care for the goods for which the User’s title has been retained as a good caretaker, meaning that it needs to provide for all risk insurance and storage in a safe and adequate manner. In the event of the occurrence of any circumstance on which a claim on the coverage of the insurer can be based for damage suffered to goods owned under retained title by the User the Counterparty will assign those rights to claims under policy upon first request to the User.
The Counterparty will inform the User within a week of the occurrence of damage to the goods of retained ownership.
The Counterparty does not have the right to use, to rent out, to give away, to sell, to encumber, to pledge or to dispose of the goods to which the User has retained title and rights. The Counterparty may sell those products only if such was agreed in writing, or written permission was granted by the User beforehand.
Payment by the Counterparty must be made within the period specified in the Agreement or on the invoice sent by the User. All terms for payment shall be considered as final deadlines, a Counterparty failing to pay in time shall be in default without prior notice or being set an additional period for payment.
If no term was specified in the Agreement and the invoice does not specify a payment term, a term of 10 days after the invoice date shall be applicable.
If no term was specified in the Agreement and no invoice was sent then a payment term shall be applicable of 10 days after the goods ordered have been physically delivered to the Counterparty, regardless of acceptance of delivery.
The Counterparty that does not pay in time will be liable for the costs the User makes in the pursuit of the collection of the full invoiced amount as well as any damages for which it is liable on the basis of its default.
If the Counterparty, who did enter into the agreement as a consumer fails to pay in time or does not pay fully in time, he will be liable for the Dutch statutory interest on the outstanding invoice amount without prior notice of default. The Counterparty who did not enter into the Agreement as a consumer will be liable for a compounding annual interest of 15%. The claim for interest or for any other type of damage will not replace or be replaced by any claims based on a contractual penalty, The User will be allowed to claim both at the same time.
The Counterparty provides his consent beforehand for the User to Offset any claims that the User has against Counterparty against claims the Counterparty has against the User.
No license, no transfer of intellectual property rights
The website of the User, in whole or in part, and the images on it, are protected as a work in the meaning of copyright. It is forbidden for the Counterparty to republish on the internet or otherwise any part of the website without the written consent from the User. The User is, at any point in time able to withdraw permission granted in the past without prior notice and without becoming liable for damage suffered by the Counterparty or any third party.
The Agreement shall in no way be construed as to imply the existence of a license or cause a transfer of any intellectual property rights of the User to the Counterparty, unless parties explicitly agree differently in writing, naming the specific rights and conditions for which a license is granted or a transfer is made.
Right of withdrawal for EU consumers
When purchasing products, a consumer residing in the EU has the right to dissolve a contract, without giving reasons, during a period of at least 14 days.
The User can ask a consumer for the reason of this dissolution, but the consumer is under no obligation to state his/her reason(s). The consumer bears the direct costs of returning the product.
The period stipulated in this article commences on the day after the product was received by the consumer, or a third party designated by the consumer, who is not the transporting party, or:
1) if the consumer has ordered several products: the day on which the consumer, or a third party designated by the consumer, received the last product. The User may refuse a single order for several products with different delivery dates, provided he clearly informed the consumer of this prior to the ordering process.
2) if the delivery of a product involves different deliveries or parts: the day on which the consumer, or a third party designated by the consumer, received the last delivery or the last part;
3) with contracts for the regular delivery of products during a given period: the day on which the consumer, or a third party designated by the consumer, received the last product.
EU consumer’s obligations during the withdrawal period
During the withdrawal period, the consumer shall treat the product and its packaging with care. He shall only unpack or use the product in as far as necessary to assess the nature, characteristics and efficacy of the product. The point of departure here is that the consumer may only handle and inspect the product in the same way that he would be allowed in a shop.
The consumer is only liable for the product’s devaluation that is a consequence of his handling the product other than as permitted in this article.
The consumer is not liable for the product’s devaluation if the User did not provide him with all the statutorily obligatory information about the right of withdrawal before the contract was concluded.
Privacy and Cookies
The User complies with all applicable regulations concerning privacy.
When the Counterparty invokes the Unreasonably Onerousness of one or more of the provisions of these Terms and Conditions or one or more of these provisions cannot be applied or are (declared) void the other provisions shall remain in full force, unaffected. Should that occur the User and the Counterparty agree to substitute or convert the affected provision(s) with provisions as close in goal, meaning and effect to the original provisions as possible whilst being valid and applicable.
All disputes arising out of the Agreement or related to the relationship between the User and the Counterparty shall be exclusively submitted to the competent court of the place of business of the User, unless provisions of Dutch imperative law (dwingend recht) prescribe otherwise. Dutch law applies to the Agreement, to these Terms and Conditions and to every legal aspect of the relationship between the User and the Counterparty.
Applicability of the United Nations (Vienna) Convention on Contracts for the International Sale of Goods is excluded.
If not agreed to otherwise in writing the Counterparty will treat all information and data shared with them as confidential.
Questions about our Terms of Service?
If you have any questions about the Terms of Service please sent us an email at info @ kooduu .com with your question and we will reply within 14 days.