General Terms and Conditions Thimble Toys
Article 1 - Definitions
1.1 In these conditions the following definitions shall apply:
· Thimble Toys: Thimble Toys B.V. and all of its affiliates located at: Curiestraat 8, 6716 AR, Ede the Netherlands Chamber of Commerce number: 75508109, VAT identification number: NL 860307049 B01.
· Customer: Every natural person/company with whom Thimble Toys enters an Agreement, or to whom Thimble Toys extends an offer.
· Agreement: Every Agreement which is established between Thimble Toys and Customer, including but not limited to any amendment and/or addendum thereto and all legal steps taken in preparation and implementation of said Agreement.
· Terms: These General Terms and Conditions.
Article 2 - Applicability of Terms
2.1 The Terms shall be applicable for all present and future contracts, offers, tenders, Agreements and any other services between Thimble Toys and Customer.
2.2 Deviations and/or addenda on any provisions of an Agreement and/or Terms shall only be considered effective if these are confirmed by Thimble Toys in writing.
2.3 The applicability of the general terms of the Customer is excluded unless Thimble Toys has issued a written and explicit acceptance of such terms.
2.4 If any provision from these general terms and conditions should be wholly or partly void and/or invalid and/or unenforceable, the other provisions shall in all other respects remain intact as far as possible and the provision concerned will be replaced in consultation between the parties with a provision which corresponds as closely as possible to the meaning and scope of the original provision
Article 3 - Agreements
3.1 An Agreement shall only come into effect if and insofar Thimble Toys has confirmed an Agreement or has started with the execution of an Agreement.
3.2 All measure, weights, dates and/or other specifications are made with care however errors may occur. Images and illustrations are non-binding and only to be used as an indication of the product. Errors, printing errors, typographical errors, miscalculations, spelling mistakes and computing errors are non-binding and do not constitute any claim for compliance or indemnity.
3.3 If the Agreement is made between Thimble Toys and multiple Customers. Each Customer will be accountable for the entirety of obligations which result from the Agreement.
3.4 Thimble Toys will provide the necessary care when receiving and implementing orders.
Article 4 - Prices
4.1 All written and oral offers of Thimble Toys in whatever form are entirely without obligation and non-binding. Unless expressly agreed upon otherwise..
4.2 The prices as defined in offers, quotations, prospects, publications and leaflets of Thimble Toys are based on the applicable circumstances during the time of publication. Prices are approximate and do not bind Thimble Toys in any way. With the publication of a new offer all past offers become invalid.
4.3 Thimble Toys reserves the right to change prices between conclusion of the contract and the agreed date of delivery in case the circumstances, on which the prices are based, should change. Circumstances as such entail at the very least, changes in shipping costs, import and export rates, national and international taxes or duties, exchange rates and prices of materials used during the fabrication process. If the prices are changed within three months of closing the Agreement nonetheless prior to the agreed date of delivery, the Customer has the right to rescind the Agreement.
4.4 All prices are excluding VAT unless expressly confirmed in writing. Transportation costs are not included unless expressly agreed upon.
Article 5 - Delivery
5.1 Delivery will take place on the address as specified by the Customer unless agreed upon otherwise in writing.
5.2 Thimble Toys is at all times entitled to make part-deliveries and to invoice said part-deliveries separately.
5.3 The date/period of delivery as stated by Thimble Toys is based on the prevailing circumstances at the time of conclusion of the Agreement. Thimble Toys will do it's utmost to ensure the date of delivery as agreed upon.
5.4 Dates and deadlines are non-binding and shall not be perceived as terms on penalty or forfeiture of rights. Any delivery which exceeds the agreed upon date of delivery does not constitute any damage claim nor any right to dissolution of the Agreement nor a right to suspension of the obligations of the Agreement. Unless the exceedance entails a period of more than three months, in which case the reasonableness and fairness constitute the right to partial dissolution of the Agreement or suspension of the obligations as mentioned hereinbefore.
5.5 The date of delivery commences on the date of conclusion of the Agreement or if such is later, the date of receipt of necessary equipment for the Agreement and/or the date on which payment in advance has been received.
Article 6 - Risk
6.1 Upon delivery at the known or specified address all responsibility and risk for the products is transferred to the Customer.
6.2 If the Customer does not or not timely accept the products, the Customer will be negligent without any formal notice of default. Thimble Toys will have the right to store at, or sell the products to, a third party at the risk and expense of the Customer. The hereinbefore mentioned costs, added with any interest and the obligation to pay the agreed upon price remains upon the Customer. Any profits acquired from the sale to a third party will be deducted from the indebted sum.
6.3 As long as the Customer is in default regarding one or more invoices beyond their respective expiration dates, all future deliveries may be suspended until the invoices have been paid in full without prejudice to Thimble Toys' right to annulment of outstanding orders and/or any damage claims.
Article 7 - Payment
7.1 Payment will be made in Euros without any deduction or discount. Payments must be made out to the account number as stated on the invoice within a time limit of fourteen (14) days of the date on the invoice. From the moment of expiration of the term of payment Thimble Toys will charge a legal interest ex article 6:119a Book 6 of the Dutch Civil Code. The Customer does not have the right to suspend payment on any grounds whatsoever except for those specified in article 6.3 of these Terms.
7.2 If the Customer is in default all invoices of Thimble Toys on whatever grounds are immediately payable.
7.3 If the Customer does not fulfil his payment obligations the shipping costs for the return of the products are borne by the Customer.
7.4 If the period mentioned in 7.1 is exceeded, Thimble Toys is entitled to charge the statutory commercial interest per month. The interest is calculated from the moment the Customer is in default.
7.5 In case the term of payment as stated in 8.1 is exceeded the Customer is held accountable for any extrajudicial debt collection costs. These costs will be at least 20% of the total indebted sum with a minimum of € 115,00 and shall not affect any rights of Thimble Toys to charge any further, reasonable costs to the Customer.
7.6 Regardless the agreed payment conditions the Customer is obliged, on Thimble Toys' demand and on Thimble Toys' judgement, to at once furnish adequate security. Should to the Customer fail to furnish adequate security within the stipulated time, the Customer shall deemed immediately in default. In this case Thimble Toys has the right to suspend the execution of the agreement or to dissolve the agreement and to recover his loss or damage from the Customer.
7.7 Thimble Toys is entitled to set off outstanding invoices or claims for whatever reason.
7.8 It should be expressly noted that customer is not entitled to set off invoices or claims for whatever reason, except in the event of bankruptcy of Thimble Toys.
7.9 Thimble Toys reserves the right at all times to demand full or partial payment in advance.
7.10 Customer is obliged to immediately report inaccuracies in the provided or stated payment data to Thimble Toys.
7.11 Objections to invoices or the amount thereof do not give the Customer the right to suspend his payment obligation.
Article 8 - Retention of Title
8.1 All delivered products remain the property of Thimble Toys until all obligations due to and which shall be due to Thimble toys have been completely fulfilled. These are obligations are including but not limited to due charges, interest, taxes, costs and damage claims.
8.2 The Customer is not entitled to dispose, rent, let, lease or pledge the products delivered subject to retention of title nor to extend any other right pertaining to such goods to any third party only insofar as this is necessary the framework of normal business practice.
8.3 As long as Thimble Toys has ownership of the products, the Customer shall inform Thimble Toys immediately in writing when goods are (or are likely to be) impounded or a claim is otherwise made regarding the products and/or a petition for bankruptcy is filed or a (temporary) suspension of payments is sought with regard to the Customer. Furthermore the Customer shall inform Thimble Toys on request as to the location and whereabouts of the products to which Thimble Toys retains the ownership.
8.4 In the event of impoundment, (temporary) suspension of payment, bankruptcy or debt restructuring under the Wet Schuldsanering Natuurlijke Personen, the Customer shall immediately inform any third parties to the Thimble Toys' ownership of the products.
8.5 If the Customer has not paid the agreed upon price, for the products delivered, in full and if the products have been sold to a third party, the Customer will be obliged to provide all necessary cooperation in order to create a pledge for the benefit of Thimble Toys on all claims which the Customer obtains pursuant the resale of the products, without prejudice to Thimble Toys' other rights following the Agreement or the law.
8.6 The Customer shall make every reasonable effort in order to ensure Thimble Toys' property rights. The Customer will not be permitted to change or remove any brand markings or identifying marks affixed to the products or their packaging
8.7 If Thimble Toys wants to exercise the ownership rights, the Customer gives prior unconditional and irrevocable permission to Thimble Toys and third parties to be designated by the Thimble Toys to enter all places where the properties of Thimble Toys are located and to take back those articles.
Article 9 - Warranty, Complaints and Returns
9.1 When the products are taken delivery of the Customer will verify that the delivery corresponds with the specifications of the order as placed by the Customer.
9.2 Minor deviations from the usual or reasonable tolerances do not entitle the Customer to make a complaint, reject goods or require replacement or to make a statement about termination of the Agreement and/or compensation for damage caused.
9.3 Complaints pertaining to visible defects and/or any shortages or surplus of the delivery will be immediately, but within a time limit of seven (7) days after the date of delivery on penalty of forfeiture of all claims of the Customer, disclosed to Thimble Toys. All other claims should be received within a time limit of seven (7) days of the date on which the Customer could reasonably have discovered the error. After expiration of the hereinbefore mentioned time limit the products will be deemed in order.
9.4 Where Thimble Toys supplies third party products only the guarantees of the relevant supplier will apply. Thimble Toys is never obliged to provide a warranty to the Customer beyond that which Thimble Toys can claim from its suppliers.
9.5 Thimble Toys undertakes to repair, replace or reimburse the product free of charge in case of any material or constructional defects within the warranty period. The warranty period differs per product and will be determined by Thimble Toys thusly. As a result of replacement or return the property of the relevant products will transfer back to Thimble Toys, such products shall be promptly handed over to Thimble Toys.
9.6 Defects due to natural wear or from the normal use or any other external factors are not covered by this warranty.
9.7 This warranty does not cover improper and non-careful use of the product by Customer. There is no warranty if the Customer resorts to, or has resorted to, repair or other work to the product without prior written authorization from Thimble Toys unless the repair or other work is an inherent part of normal use as determined by Thimble Toys.
9.8 No warranty exists on products sold per meter, light bulbs, plants, personal computers, digital sound, image, and data carriers, products which based on hygiene conditions and expiration dates can no longer be sold, specially ordered products, inflatable products and balls.
9.9 Thimble Toys is not obliged to replace or take back any products which are used, damaged or changed in any way, as to be judged by Thimble Toys.
9.10 Thimble Toys is not obliged to accept any returns of products exceeding 12 months as from acquisition date, and products of which the purchase price is €1,00 or lower. Except on the condition that the defect is structural.
9.11 In the event the Customer claims under the warranty of these Terms, the Customer will within fourteen (14) days take appropriate measures to ensure the possibility for Thimble Toys to examine the relevant product at a location to be chosen by Thimble Toys. Failing so shall forfeit all rights of Customer in respect of said complaint unless the actions or omissions of Customer do not justify a forfeiture of these rights according to Thimble Toys.
9.12 By fulfilling aforementioned repairs, replacements or reimbursements Thimble Toys will be fully discharged of its obligations, Thimble Toys shall not be liable for any other claims.
9.13 On discovering any defect, the Customer must immediately cease using, handling, processing and/or installing the relevant Products and otherwise undertake or refrain from undertaking anything that is reasonably possible to prevent any further damage.
9.14 The Customer cannot derive any rights of the consideration of a claim.
9.15 Thimble Toys will not accept any returns.
Article 10 - Liability and Indemnification
10.1 Thimble Toys will not be responsible or liable to Customer or any third party for any damages including but not limited to indirect, consequential, immaterial and environmental loss or damages.
10.2 Thimble Toys will not be responsible or liable for transport or adverse consequences of transport by Customer nor in case such transport is conducted with the support of materials supplied by Thimble Toys.
10.3 The exemption of liability in this article shall not apply in cases of intent, gross negligence, deliberate recklessness and serious culpability of Thimble Toys or liability as a result of Title 3, Part 3, Book 6 of the Dutch Civil Code.
10.4 Regarding 10.3 Customer shall indemnify Thimble Toys against third party claims directly or indirectly pertaining to delivered products. The Customer shall reimburse Thimble Toys for all claims including, but not limited to, lawyer fees which Thimble Toys incurs due to aforementioned claims.
10.5 In the event that Thimble Toys is liable for any damages of Customer, that liability shall be limited to twice the price as described on the invoice which caused the damages.
Article 11 - Force Majeure
11.1 If Thimble Toys is unable to meet its obligations towards Customer due to a force majeure, Thimble Toys has the right to suspend the performance of its obligations for the duration of the non-accountable shortcoming.
11.2 Thimble Toys and Customer shall both have the right to fully or partially dissolve the Agreement if the duration of a force majeure exceeds two months.
11.3 In the event of a force majeure Customer will not be entitled to any compensation including when Thimble Toys benefits in any way from the situation of the force majeure.
11.4 An event of force majeure is understood to be every circumstance beyond the will and control of Thimble Toys, as a result of which Thimble Toys is wholly or partially unable to fulfil its obligations towards Customer, and such fulfilment cannot reasonably be expected. Despite the foreseeability of such an event at the time the Agreement was concluded. Such circumstances are, including but not limited to strikes, lock-outs, fire, accidents, machinery breakdown, stagnation or other problems at the production of suppliers of Thimble Toys, government measures and the absence of required permits.
Article 12 - Webshop
12.1 Thimble Toys will make every effort reasonable in order to ensure the maximum possible availability of the online store and its features. However Thimble Toys expressly does not guarantee permanent, 24/7 availability.
12.3 The client number, password and login of Customer are customer-specific information. It is prohibited to allow third parties apart from sub users, access to this customer-specific information.
Article 13 - Intellectual Property
13.1 All information drawn up by Thimble Toys within the framework of the Agreement is protected by intellectual property rights. No part of this may be copied or reproduced and/or published without the prior written consent of Thimble Toys.
Article 14 - Choice of Court and Applicable Law
14.1 All Agreements with Thimble Toys are subject exclusively to the laws of the Netherlands with the explicit exception of the Vienna Sales Convention (1980).
14.2 Save in the event the Cantonal Court has jurisdiction, Thimble Toys and Customer hereby submit to the exclusive jurisdiction of the Court of Gelderland, located in Arnhem.
14.3 The parties will submit a dispute to the court only after they have made every effort to settle the dispute in consultation.
Article 15 - Change of Terms
15.1 Thimble Toys reserves the right to adjust or modify these terms unilaterally.
15.2 The applicable version of the Terms is the version applicable at the time of conclusion of the Agreement.
15.3 It is recommended to check possible changes in the Terms from time to time.
15.4 In the event of disagreement on the interpretation of these general terms, the Dutch text is binding.