Terms and Conditions
Terms & Conditions of:
- Podobrace B.V.
- Marconistraat 9
- 1131 JW Volendam
- The Netherlands
- E-mail: firstname.lastname@example.org
- VAT nr: NL857685806
- CoC nr: 69003211
Article 1: Applicability, definitions
- The following terms and conditions apply to every offer and every purchase and sales agreement concluded via the website Podobrace.co.uk, part of Podobrace B.V., established in Volendam, hereafter referred to as "Podobrace".
- The buyer is further referred to as "the other party".
- Various provisions in the following terms and conditions refer to a natural person who is acting outside his business or professional activity. In these provisions, the other party is referred to as "the consumer".
- "Offer" means: any offer by Podobrace, whether in the form of a written offer or not.
- "In writing" means: by letter, e-mail, fax or any other form of communication that can be equated with this in view of the state of technology and the prevailing views in society.
- "The website" means: the Podobrace website mentioned in paragraph 1.
- The possible inapplicability of a (part of a) provision of these terms and conditions does not affect the applicability of the other provisions.
- In the event of a discrepancy or conflict between these terms and conditions, or a translation of these terms and conditions, the Dutch text applies.
- These terms and conditions also apply to after- or partial orders resulting from the agreement.
Article 2: Offers and Prices
- Unless a validation period is stated in/with an offer, this is a non-binding offer. Podobrace may revoke this offer at the latest within 2 working days after receiving the acceptance.
- Unless stated otherwise, the prices stated in an offer price list or on the website, include VAT and exclude any costs, such as transport costs, shipping costs and administration costs. For each product, a clear statement is made of the applicable VAT amount and any costs.
- A combined offer does not oblige Podobrace to deliver part of the offered goods at a corresponding part of the price.
- The offer and prices do not automatically apply to after orders.
- Models and examples shown, specifications of colors, dimensions, weights and other descriptions on the website are as accurate as possible, but are only indicative. The other party can't derive any rights from this.
- If (cost) price-increasing circumstances occur between the conclusion of the agreement and its implementation for Podobrace due to changes in legislation and regulations, government measures, currency fluctuations or changes in the prices of the required materials or raw materials, Podobrace may increase the agreed prices accordingly and charge it to the other party.
- In the event of increasing prices within 3 months after the conclusion of the agreement, the consumer may terminate the agreement by means of written statement. Unless the consumer notifies Podobrace within 14 days after the notification of the price change, Podobrace may assume that the consumer has agreed to this change.
Article 3: Conclusion of agreements
- Unless stated otherwise on the website, Podobrace is only bound by an order via the website, after it has confirmed this in writing - whether or not by means of an automatic message - to the other party.
- Additions or changes to the general terms and conditions or the agreement only bind Podobrace after they have been confirmed in writing to the other party.
Article 4: Distant purchasing - Reflection time, right of termination
- This article only applies to the consumer in the event of a distant purchase within the meaning of article 6: 230g paragraph 1 of the Dutch Civil Code.
- In the event of a distant purchase, the consumer has a cooling-off period. Within this cooling-off period, the consumer may terminate the agreement without giving a reason.
- The cooling-off period referred to in the previous paragraph amounts to 14 calendar days from the day on which the consumer or a third party designated by him (not being the carrier):
- has received the product;
- has received the last item, if the consumer has ordered several items in one order and these items are delivered separately;
- has received the last shipment or the last part, if the delivery of one order consists out of different shipments/parts;
- has received the first item for an agreement that extends to the regular delivery of items during a certain period.
- The termination takes place through a written notification from the consumer to Podobrace whether or not using a form made available by Podobrace.
- Any termination in accordance with the preceding paragraphs will also automatically terminate any additional agreements.
- The consumer does not have the right to terminate the delivery of:
- specific items that are tailor-made for him or items that are clearly intended for a specific person;
- items that are not suitable for being returned for reasons of health protection or hygiene and for which the seal/packaging has been broken after delivery;
- items that by their nature are irrevocably mixed with other items after delivery.
- If the consumer wants to return the delivered item because it does not comply with what the parties have agreed, the provisions of the complaint article apply.
Article 5: Distant purchasing - return shipment, refund
- Unless Podobrace collects the goods delivered / has them collected, the consumer must immediately - but in any case within 14 days after termination - in the original packaging, return the package to Podobrace in the original packaging, unused and for his own account and risk by a third party.
- Within 14 calendar days after termination, Podobrace will reimburse all amounts received by the consumer under the relevant agreement in the same manner and in the same currency as used by the consumer.
- Podobrace is not obliged to refund any additional costs that have arisen because the consumer has explicitly opted for a different method of delivery than the least expensive method of standard delivery offered by Podobrace.
- Unless Podobrace collects the goods delivered / has them collected, the consumer can only claim reimbursement after Podobrace has received the goods or the consumer has demonstrated that the goods were returned by him, whichever is earlier.
- Podobrace may refuse returned goods or only refund part of the payments received from the consumer if the goods are not in the original packaging, have been altered with, have been used (more than necessary due to the nature, characteristics and operation of the case) and / or damaged. Podobrace will then inform the consumer immediately upon receiving the goods.
- The consumer is liable for the depreciation of the goods if his handling of the goods has gone beyond what is necessary to determine the nature, characteristics and effect of the goods.
- The consumer is never liable for costs, because he makes use of his right of termination.
Article 6: Use of third parties
If Podobrace deems this necessary, it may have certain deliveries done by third parties.
Article 7: Confidential information
- Podobrace keeps all information that it has received from or about the other party in the context of concluding and executing the agreement secret. Podobrace only provides this information to third parties so far as this is necessary for the implementation of the agreement.
- Podobrace takes all reasonable precautions to keep this information secret. This duty of confidentiality also applies to its employees and third parties that are involved in the implementation of the agreement under its responsibility.
- The obligation of confidentiality does not apply if, as a result of legislation and/or regulations or a court ruling, Podobrace must disclose the confidential information and thereby can't invoke a legal privilege. This exception also applies to employees and other persons as referred to in the previous paragraph.
Article 8: Delivery, delivery times
- Agreed deadlines are never strict deadlines. If Podobrace does not meet its obligations (in time), the other party must give it written notice of default and thereby grant a reasonable period of time to still meet them.
- An agreed period starts at the moment that Podobrace has received all the information necessary for the delivery and any agreed (advance) payment from the other party. If this causes a delay, the period will be extended proportionally.
- Podobrace may deliver in parts and invoice each partial delivery separately.
- The risk for the goods to be delivered is transferred to the other party as soon as the latter leaves the premises, warehouse or store of Podobrace or Podobrace has informed him that the goods can be collected.
- Shipping or transport of the goods takes place at the expense and risk of the other party and in a manner to be determined by Podobrace. Podobrace is not liable for damage of any kind that is related to the shipment or transport.
- Unless the parties agree on a different term, delivery to the consumer is subject to a maximum of 30 days after the conclusion of the agreement. In addition, the risk passes to the consumer at the moment when the goods are actually available to him/a third party designated by him (not being the carrier). If the consumer designates the carrier himself (not being a carrier proposed by Podobrace), the risk passes to him upon receiving the goods by this carrier. Shipping or transport is for the account of the consumer.
- If, due to a cause located in the risk sphere of the other party, it appears to be impossible to deliver the ordered goods (in the agreed manner) to the other party or if these are not collected, Podobrace may charge and save the goods at the expense and risk of the other party. The other party will then allow Podobrace within a reasonable period set by Podobrace to deliver the goods or collect them.
- If the other party fails to meet its purchase obligation after the aformentioned reasonable period, it is immediately in default. Podobrace may then terminate the agreement in whole or in part with immediate effect through a written statement and sell the goods to third parties without being obliged to compensate damage, costs and interest. This does not affect the obligation of the other party to compensate any (storage) costs, damage and loss of profit of Podobrace and/or the right of Podobrace to claim compliance.
Article 9: Complaints
- The other party checks the delivered goods immediately upon receiving and states any visible defects, damage and/or deviations in numbers on the waybill or accompanying receipt or reports them - in the abscence thereof - in writing to Podobrace within 2 working days. If such complaints are not reported in time, the goods are deemed to have been received in good condition and to comply with the agreement.
- Other complaints will be reported to Podobrace in writing immediately after discovery but no later than within the agreed guarantee period. All consequences of not immediately reporting are at the risk of the other party. If no guarantee period has been agreed, a period of 1 year after delivery applies.
- In the absence of a timely complaint, it is not possible to invoke an agreed guarantee.
- If ordered goods can only be delivered in (wholesale) packaging in stock at Podobrace or minimum quantities or numbers, the goods may show minor deviations - accepted in the industry - regarding specified weights, numbers, colors and sizes. These deviations are not a shortcoming from Podobrace and no warranty claim is possible.
- Complaints do not suspend the payment obligation of the other party.
- The previous paragraph does not apply to the consumer.
- The other party enables Podobrace to investigate the complaint and provides all relevant information. If a return shipment is necessary for the investigation, this will be at the expense of the other party, unless the complaint is subsequently found to be legitimate. The transport risk is always for the other party.
- Return shipments take place in a manner to be determined by Podobrace and in the original packaging.
- No complaints can be made about:
- imperfections in or quality of goods made from natural materials, if these imperfections or qualities are inherent to the nature of the materials;
- discolorations and slight color deviations;
- items that have changed in nature and/or composition after receiving by the other party or that have been wholly or partially worked or processed.
Article 10: Guarantees
- Podobrace performs the agreed deliveries properly and in accordance with the standards applicable in its sector, but never gives a further guarantee than as expressly agreed.
- Podobrace guarantees the usual quality and reliability of the delivered goods during the guarantee period.
- If, for the goods delivered by Podobrace, a guarantee has been issued by the manufacturer or supplier, that guarantee shall apply in the same way between the parties. Podobrace informs the other party about this.
- Podobrace always endeavours to inform the other party as well and completely as possible about the items it has delivered, such as about the components / materials from which the item is made with also concidering possible skin irritations in connection with allergies and other disorders. Podobrace is, however, largely dependent on the (product) information provided by the supplier / manufacturer with or about the case. For that reason, Podobrace can't guarantee that the information provided with / on the case is always complete or correct and is not liable for any damage or other consequences arising for the other party.
- If the purpose for which the other party wishes to process or use the goods deviates from the usual purpose, Podobrace only guarantees that the goods are suitable for this if it has confirmed this in writing to the other party.
- No appeal to the guarantee is possible as long as the other party has not yet paid the price agreed for the goods.
- The previous paragraph does not apply to the consumer.
- In the event of a justified claim on the guarantee, Podobrace will - at its option - provide for free repair or replacement of the goods or for repayment of or a discount on the agreed price. If there is additional damage, the provisions of the liability article apply.
- The consumer may always opt for free repair or replacement of the goods, unless this can't reasonably be required from Podobrace. In the latter case, the consumer may terminate the agreement by written statement or demand a discount on the agreed price.
Article 11: Liability
- Apart from the explicitly agreed or given guarantees by Podobrace, Podobrace does not accept any liability.
- Podobrace is only liable for direct damage. Any liability for consequential damage, such as business damage, loss of profit and/or loss, damage caused by delay and/or personal injury, is expressly excluded.
- The other party takes all necessary measures to prevent or limit the damage.
- If Podobrace is liable, the obligation to pay compensation is always limited to a maximum of the amount paid out by its insurer in the relevant case. If the insurer does not pay or the damage does not fall under an insurance policy taken out by Podobrace, the obligation to pay compensation is limited to a maximum of the invoice amount for the delivered goods.
- The other party must sue Podobrace for this no later than within 6 months after it has become known or could have been aware of the damage it has suffered.
- Contrary to the previous paragraph, a period of 1 year applies to the consumer.
- Podobrace is not liable - and the other party can't invoke the applicable guarantee - if the damage was caused by:
- improper use, use contrary to the purpose of the delivery or use contrary to the instructions, advice, instructions for use, leaflets and the like provided by / on behalf of Podobrace;
- improper storage or maintenance of the goods;
- errors or omissions in the information provided to Podobrace by or on behalf of the other party;
- instructions from or on behalf of the other party;
- or as a result of a choice of the other party that deviates from what Podobrace advised and / or is customary;
- or because the other party or third parties have carried out (repair) work or operations on the delivered goods on their behalf, without the express prior permission of Podobrace.
- In the cases as listed in the previous paragraph, the other party is fully liable for the resulting damage and indemnifies Podobrace against any claims from third parties.
- The limitations of liability included in this article do not apply if the damage is due to intent and / or deliberate recklessness on the part of Podobrace or the management at management level or if mandatory legal provisions dictate otherwise. Only in these cases will Podobrace indemnify the other party against any claims from third parties.
Article 12: Payment
- Podobrace may always request a (partial) advance payment or other security for payment. The requested advance payment for consumers amounts to a maximum of 50% of the agreed price.
- Payment takes place in the manner indicated on the website, unless the parties agree otherwise in writing.
- Payment must be made within an expiry period of 30 days after the invoice date, unless the parties have agreed a different payment term in writing. The correctness of an invoice is also established if no objection has been made within this payment period.
- If an invoice has not been paid in full after the expiring of the period referred to in the previous paragraph or has not been able to collect by direct debit, the other party will owe Podobrace a default interest of 2% per month, cumulatively calculated on the principal sum. Parts of a month are counted as a full month.
- In the aforementioned situation, a default interest of 6% on an annual basis applies to the consumer, unless the statutory interest is higher. In that case the statutory interest applies.
- If payment is still not made after a reminder, Podobrace may additionally charge the other party extrajudicial collection costs amounting to 15% of the invoice amount with a minimum of € 40,-.
- Podobrace gives the consumer at least a 15-day period for the aforementioned reminder to still pay. If payment is not made again, the extrajudicial collection costs for the consumer are:
- 15% of the amount of the principal on the first € 2500,- of the claim (with a minimum of € 40,-);
- 10% of the amount of the principal on the following € 2500,- of the claim;
- 5% of the amount of the principal on the following € 5000,- of the claim;
- 1% of the amount of the principal on the following € 190.000,- of the claim;
- 0,5% of the excess of the principal.
- With an absolute maximum of € 6775,-.
- For the calculation of the extrajudicial collection costs, Podobrace may increase the principal sum of the claim after the lapse of 1 year by the default interest accrued in that year.
- In the absence of full payment, Podobrace may, without further notice of default, terminate the agreement or suspend its obligations under the agreement until payment has been made or a proper security has been provided for this. Podobrace also has the aforementioned right to suspend if it has reasonable grounds to doubt the creditworthiness of the other party / consumer before the other party / consumer is in default with the payment.
- Payments received will first be deducted from all interest and costs owed by Podobrace and then from the due and payable invoices that have been standing the longest, unless the payment states in writing that this relates to a later invoice.
- The other party may not set off Podobrace's claims against any counterclaims it has on Podobrace. This also applies if the other party applies for a (provisional) suspension of payment or is declared bankrupt.
- The previous paragraph does not apply to the consumer.
Article 13: Retention of title
- All goods delivered / to be delivered pursuant to the agreement remain the property of Podobrace until the other party has fulfilled all its payment obligations.
- These payment obligations consist of paying the purchase price of the goods, plus claims for work performed in connection with the delivery and claims for an attributable shortcoming of the other party, such as claims for payment of compensation, extrajudicial collection costs, interest and any fines.
- For the delivery of identical, non-individualizable items, the batch belonging to the oldest invoices is always deemed to be the first to be sold. The retention of title therefore always rests on all delivered goods that are still present in the counterparty's stock, store and/or household effects when invoking the retention of title.
- The other party may resell the goods within the framework of its normal business operations, provided that it also stipulates a retention of title to these goods from its customers.
- As long as the goods are subject to a retention of title, the other party may not pledge these in any way or bring them into the actual power of a financier.
- The other party will immediately inform Podobrace in writing if third parties claim to have ownership or other rights to the goods.
- As long as the other party has the goods in his possession, he will keep them carefully and as identifiable property of Podobrace.
- The other party ensures business or property insurance such as goods that have been delivered under retention of title are also co-insured at all times. At her first request, he gives Podobrace access to the insurance policy and associated premium payment receipts.
- If the other party acts contrary to this article or Podobrace invokes the retention of title, Podobrace and its employees may enter the site of the other party and take back the goods. This does not affect Podobrace's right to compensation for loss, lost profit and interest and the right to dissolve the agreement without further notice by means of a written statement.
Article 14: Bankruptcy, lack of decision
- Podobrace may dissolve the agreement by giving a written statement to the other party without further notice of default at the time when the other party:
- is declared bankrupt or an application has been made for this;
- apply for a (temporary) suspension of payment;
- is affected by enforceable seizure;
- is placed under guardianship or administration;
- otherwise loses the power is disposition or legal capacity with regards to (parts of) his assets
- The other party always informs the bankruptcy trustee or administrator about the (content of the) agreement and these general terms and conditions.
Article 15: Force Majeure
- In the event of force majeure of the other party or Podobrace, the latter may terminate the agreement by means of a written statement to the other party or suspend the fulfillment of its obligations towards the other party for a reasonable period of time without being obliged to pay any compensation.
- Force majeure of Podobrace is understood to mean: a non-attributable shortcoming on the part of Podobrace, of third parties or suppliers engaged by it or other serious reasons on its part.
- In the following circumstances there is force majeure at Podobrace: war, riot, mobilization, domestic and foreign civil unrest, government measures, strikes within the organization of Podobrace or threat of these circumstances, disruption of when entering into the agreement existing currency ratios, business disruptions due to fire, burglary, sabotage, power outages, internet or telephone connections or activities of cyber criminals as a result of which the website is not (fully) available, natural phenomena, (natural) disasters etc. as well as weather conditions, roadblocks accident, import and export restricting measures, etc. arising transport difficulties and delivery problems.
- If the force majeure situation occurs if the agreement has already been partially implemented, the other party must fulfill its obligations towards Podobrace up to that moment.
Article 16: Cancellation, suspension
- This article does not apply to dissolution within the legal cooling-off period as referred to in article 4.
- If the other party wishes to cancel the agreement prior to or during the performance, Podobrace may request a fixed compensation from the other party for all costs incurred and the damage suffered by the cancellation including the lost profit. At the discretion of Podobrace and depending on the deliveries already made, this compensation amounts to 20 to 100% of the agreed price.
- The other party indemnifies Podobrace against claims from third parties arising from the cancellation.
- Podobrace may set off the compensation due against all amounts paid by the other party and any counterclaims from the other party.
- In the event of suspension of the delivery at the request of the other party, the compensation for all deliveries made is immediately claimable and Podobrace may charge this to the other party. This also applies to costs already incurred or costs resulting from the suspension.
- Costs arising for Podobrace from resuming the delivery are for the account of the other party. If the execution of the agreement can't be resumed after the suspension, Podobrace may terminate the agreement by means of a written statement to the other party.
Artikel 17: Applicable law, authorized judge
- The agreement concluded between the parties is exclusively governed by Dutch law.
- The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
- Any disputes will be submitted to the authorized court in the place of business of Podobrace, but Podobrace always retains the right to submit the dispute to the authorized court in the place of business of the other party.
- Regardless of the choice of Podobrace, the consumer always retains the right to submit the dispute to the legally authorized court. The consumer must make this choice known to Podobrace within one month after receiving the summons.
- If the other party is established outside the Netherlands, Podobrace may choose to submit the dispute to the authorized court in the country or state where the other party is established.