Terms of service
ONYX is a trademark of Qumax Brands B.V.
Registered office: Koelmalaan 350, 1812 PS Alkmaar, Floor 5 unit 18 (Office)
Chamber of Commerce number 73021245
VAT number NL859323638B01
GENERAL (SALES) TERMS AND CONDITIONS
Article 1 – Applicability of the general sales, delivery and payment terms and conditions 1.1. These general sales, delivery and payment terms and conditions (hereinafter: the “Terms and Conditions”) form part of every agreement concluded between Qumax (hereinafter: Qumax) on the one hand and any third party (hereinafter: Buyer) on the other hand, and of all quotations issued by Qumax, relating to the delivery of movable property. 1.2. The Terms and Conditions shall also, after they have become part of any agreement between Qumax and Buyer, form part of agreements subsequently concluded between Qumax and Buyer, even if the applicability of the Terms and Conditions is not referred to when those subsequent agreements are concluded. 1.3. Deviations from the Terms and Conditions shall apply only insofar as expressly agreed in writing by the parties and Qumax has accepted the deviations in writing. The deviations shall apply only to the quotation or agreement in which they were made. 1.4. The complete or partial invalidity of any provision of the Terms and Conditions shall not affect the validity of the remaining provisions of the Terms and Conditions. 1.5. The applicability of the general terms and conditions invoked by Buyer is expressly rejected by Qumax. Buyer's general or special terms and conditions are excluded, in particular insofar as those terms and conditions would relate to payment, set-off or the right to pledge or transfer claims of Qumax against Buyers.
Article 2 – Quotations and conclusion of agreements 2.1. Every quotation from Qumax is non-binding, unless expressly stipulated in writing that it is irrevocable, and shall lapse by operation of law, unless expressly stipulated otherwise in writing, after thirty (30) calendar days from the date of the quotation. Quotations from Qumax may be accepted only in writing. 2.2. Agreements between the parties shall be concluded only when the conclusion of the agreement has been confirmed in writing to Buyer on behalf of Qumax by persons authorised to do so, or 1 when Qumax has performed the agreement without reservation in a manner apparent to Buyer. Notwithstanding the foregoing, unless expressly agreed otherwise in writing, Qumax shall only be obliged to proceed with delivery of the ordered goods once the total minimum order value applicable to the country in which Buyer is established has been reached, or as specifically stated in Qumax's quotation or order confirmation. Qumax shall be entitled, without being liable to pay any compensation and without prejudice to Qumax's rights under Article 15, to dissolve or terminate by notice agreements concluded with Buyer if the aforementioned minimum order value has not been reached within a period of six weeks after the (first) agreement was concluded. 2.3. Amendments or additions to an agreement already concluded, as well as ancillary agreements, shall be binding only if confirmed by Qumax to Buyer in writing. 2.4. Drawings, images, dimensions or other delivery dates shall be binding only if expressly agreed in writing.
Article 3 – Prices 3.1. All prices stated by Qumax in its quotations are, unless expressly agreed otherwise in writing, non-binding. 3.2. All prices include tax (VAT).
Article 4 – Delivery 4.1. If Qumax shows or provides a drawing, photograph, model, design, calculation or other information, this is solely for indication purposes. The goods ultimately to be delivered may differ from those shown. 4.2. Unless agreed otherwise, delivery within the countries of the Netherlands, Belgium, Denmark, Germany, France, UK, Ireland, Italy, Luxembourg, Norway, Austria, Portugal, Spain, Sweden and Switzerland shall be free of charge. Delivery to countries other than those listed above shall be ex works. 4.3. Buyer is obliged to take delivery of the purchased goods at the time of delivery. If Buyer refuses to take delivery or is negligent in providing information or instructions necessary for delivery, the goods shall be stored at Buyer's risk. In that case, Buyer shall pay the storage costs, without prejudice to Qumax's right to demand performance and/or full compensation and to proceed to dissolve the agreement. 4.4. Buyer is obliged, on pain of forfeiture of rights, to inspect the delivered goods for any shortages or damage within 24 hours after actual delivery, or to have this inspection carried out after Qumax has notified Buyer that the goods are available to Buyer. Damaged or incomplete goods shall be taken back and (if applicable) replaced by Qumax only insofar as they are returned in the original packaging. 2
Article 5 – Partial deliveries Qumax reserves the right to deliver in parts (partial deliveries), which may be invoiced separately. Buyer shall then be obliged to pay in accordance with the provisions of Article 12 of the Terms and Conditions.
Article 6 – Delivery period 6.1. The delivery period is always stated approximately and shall not constitute a strict deadline, unless expressly agreed otherwise in writing. 6.2. Qumax shall in no respect be liable for exceeding the delivery period, regardless of the cause. Exceeding the delivery period shall not oblige Qumax to pay any compensation and shall not entitle Buyer to dissolve the agreement or refuse to take delivery, or to invoke suspension of any obligation of Buyer.
Article 7 – Force majeure 7.1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, force majeure shall mean: strikes (both organised and unorganised) at Qumax's business, a general shortage of materials and other goods or services required to perform the agreed obligation, and general transport impediments, the (whether or not attributable) failure of Qumax's suppliers to perform, strikes (both organised and unorganised) and staff shortages. 7.2. During a period of force majeure, Qumax's delivery and other obligations shall be suspended. If the period during which performance of Qumax's obligations is impossible due to force majeure lasts longer than 6 months, both parties shall be entitled to terminate the agreement in whole or in part by notice or dissolution, without any obligation to pay compensation or make restitution in that case. 7.3. Qumax shall be entitled to demand payment for work already performed in the execution of the relevant agreement before the circumstance causing the force majeure became apparent. 7.4. Qumax shall also be entitled to invoke force majeure if the circumstance constituting force majeure occurs after Qumax should already have performed.
Article 8 – Warranty 8.1. Subject to the provisions elsewhere in the Terms and Conditions, Qumax warrants that the goods delivered by it and the materials processed/used by Qumax will, for 12 months after delivery, meet the requirements normally imposed on them in commercial transactions. If Buyer has sufficiently demonstrated that the goods delivered or the materials do not meet the requirements normally imposed on them in commercial transactions, Qumax shall, at its discretion, either provide parts, repair the goods delivered, replace them, or dissolve the agreement (in whole or in part), combined with a pro rata refund of the amount already paid by Buyer, without being liable to pay compensation. 8.2. The aforementioned warranty obligation shall lapse if: 3 a. Buyer itself carries out or has carried out alteration(s) to or repair(s) of the goods delivered without Qumax's prior written approval; b. Buyer has used the goods delivered for a purpose other than their apparent intended purpose; c.Buyer has handled, used or maintained the goods delivered in an (in Qumax's reasonable opinion) improper manner; d. Buyer fails to comply with its obligations towards Qumax; e. Buyer has failed to comply with its information obligations pursuant to Article 8.7; f. Buyer is otherwise wholly or partly responsible for the defect in the goods delivered. 8.3. Any costs of dismantling, dispatch and transport shall be borne by and at the risk of Buyer. 8.4. A warranty for goods purchased elsewhere by Qumax shall be provided only if and insofar as the relevant manufacturer/supplier provides a warranty, and only to that extent. 8.5. The warranty period shall not be extended after warranty repairs. 8.6. The fact that Buyer invokes the warranty shall not release Buyer from its obligations, such as payment and taking delivery under the agreement(s) concluded with Qumax. 8.7. If the goods delivered consist wholly or partly of glass, Buyer shall properly inform the customer about the properties of and handling of this material and, more particularly, about the fact that even minor damage to tempered glass may already lead to differences in tension and subsequent (glass) breakage.
Article 9 – Complaints 9.1. Complaints must be submitted in writing and as soon as possible, but no later than, and subject to, the period stated in Article 4.4, within 7 working days after the defects have been discovered, stating precisely the nature and grounds of the complaint(s) and the alleged basis of Qumax's liability for replacement, repair or compensation. Complaints that are not or insufficiently substantiated shall not be processed by Qumax. 9.2. After the expiry of the aforementioned period, Buyer shall be deemed to have approved the goods delivered. Complaints shall then no longer be processed by Qumax. 9.3. The goods delivered may be returned only after Qumax's prior written approval, subject to the conditions determined by Qumax.
Article 10 – Liability 10.1. Qumax's liability towards Buyer is, with the exception of the provisions in the following paragraphs, limited to Qumax's fulfilment of its warranty obligations as described in Article 8. 10.2. Qumax's liability for unlawful acts committed by it is excluded, except insofar as these result from intent or wilful recklessness on the part of Qumax's managerial 4 subordinates. Qumax's liability for indirect and consequential damage suffered by Buyer as a result of an attributable failure by Qumax to fulfil its obligations under any agreement is likewise excluded, including, but expressly not limited to: loss of profit, loss of turnover, non-material damage, lost opportunities and damage to reputation, unless such damage results from intent or wilful recklessness on the part of Qumax's managerial subordinates. 10.3. Qumax's liability for direct damage suffered by Buyer that results from or is connected with an attributable failure by Qumax to fulfil its obligations towards Buyer under an agreement concluded with Buyer is limited to cases in which Buyer proves that the damage is the direct consequence of the attributable failure and is furthermore limited, per event or series of related events with a common cause, to the value agreed between the parties (excluding VAT) of the obligation(s) in the performance of which Qumax has thus culpably failed and, in that case, per delivered item, with a maximum of € 2.500,– per event or series of events with a common cause, unless a more extensive limitation follows from one of the following paragraphs. 10.4. Any claim against Qumax based on an agreement concluded with Qumax shall lapse solely by the passage of one year, unless valid legal proceedings have been instituted beforehand by service of a writ of summons. The limitation period begins on the day following the day on which Buyer became aware both of the damage and of the liable party. 10.5. All defences that Qumax may derive from the agreement concluded with Buyer to avert its liability may also be invoked against Buyer by its personnel and third parties engaged by it in the performance of the agreement, as if its personnel and those third parties themselves were parties to the agreement. 10.6. Conditions limiting, excluding or determining liability that may be invoked against Qumax by third parties may also be invoked by Qumax against Buyer.
Article 11 – Indemnification Buyer shall indemnify Qumax, its personnel and any third parties engaged by Qumax in the performance of its obligations under the agreement against all claims by other third parties for compensation for any damage allegedly or actually suffered by the latter, caused by or otherwise connected with services performed by Qumax under the agreement.
Article 12 – Payment terms 12.1. Unless expressly agreed otherwise in writing, payment of each invoiced amount must be made before delivery and in accordance with the method indicated on the invoice. Payment must be made in the agreed currency and without set-off, discount and/or suspension. Following acceptance and the granting of a credit limit by Qumax's credit insurer, Qumax may decide to allow payment within fourteen (14) calendar days after the invoice date and in the manner indicated on the invoice. In that case, Qumax shall deliver orders to Buyer only if the total amount of Buyer's outstanding debtor balance 5 plus the amount of Buyer's outstanding orders does not exceed the credit limit granted. Qumax reserves the right, based on new information from the credit insurer and/or on Buyer's payment conduct, to adjust the credit limit at its own discretion, at any time. 12.2. In the event of late payment of an invoice, Buyer shall be in default without notice of default and all of Buyer's payment obligations shall become immediately due and payable. This shall also apply if Buyer is declared bankrupt or applies for a suspension of payments. 12.3. In the event of late payment of an invoice, Buyer shall owe the statutory commercial interest (Article 6:119a of the Dutch Civil Code), increased by 2% of the invoice amount, from the invoice due date. In addition, Qumax shall be entitled to charge € 7,50 in reminder costs. 12.4. Moreover, all judicial and extrajudicial costs reasonably incurred by Qumax (including, but expressly not limited to: bailiff's costs and legal assistance costs) in connection with Buyer's failure to fulfil its obligations shall be borne by Buyer, with a minimum of 10% of the principal amount owed (including VAT) or an amount of € 250,= insofar as the latter is higher, which minimum compensation shall also be regarded as an incentive for Buyer to properly fulfil its (payment) obligations (penalty clause). 12.5. Payments made by Buyer shall always be applied first to all interest and costs owed and secondly to the invoices that have been due and payable for the longest period, even if Buyer states that the payment relates to a later invoice. 12.6. Notwithstanding the foregoing, Qumax shall at all times be entitled to demand payment in cash or, before proceeding with delivery or further performance of the work, to require Buyer to provide sufficient security for timely payment. The security shall be provided by means of an irrevocable bank guarantee issued by a reputable Dutch banking institution, or by providing other security reasonably equivalent thereto.
Article 13 – Retention of title 13.1 Delivered goods shall remain the exclusive property of Qumax as long as the buyer has not satisfied the claims relating to the consideration for: – goods delivered or to be delivered by Qumax to the buyer pursuant to the agreement, or – work or services performed or still to be performed pursuant to such an agreement for the benefit of the buyer, as well as – claims arising from failure to perform such agreements. In respect of these goods, Qumax shall also acquire (co-)ownership rights, as security for all outstanding claims against the buyer, as well as in respect of goods in which Qumax's ownership rights are lost through processing, incorporation, accession, creation of a new thing or otherwise. As soon as the buyer fails to fulfil one or more of its obligations towards Qumax, all claims of the buyer shall become immediately and fully due and payable and Qumax shall be entitled, without any notice of default or judicial intervention, to exercise the rights arising from its retention of title. 6 13.2 Before the aforementioned transfer of title, the buyer shall not be entitled to sell, deliver or otherwise dispose of the delivered goods other than in the ordinary course of its business and in accordance with the ordinary intended use of the goods. This authority shall lapse when the buyer is granted a (provisional) suspension of payments or is declared bankrupt. Under no circumstances may Buyer use goods subject to retention of title as security for claims of third parties. 13.3 Before the aforementioned transfer of title, Qumax shall at all times have access to the goods that are its property, wherever they may be located. GENERAL SALES TERMS AND CONDITIONS GENERAL SALES TERMS AND CONDITIONS 5 # 6 13.4 In the event of a violation of the provisions of this article, the buyer shall owe a penalty of 10% of the claim outstanding at the time of the violation, without prejudice to the provisions of Article 10 paragraph 6. 13.5 Buyer may agree with a third party that the latter will pay the purchase price on its behalf and will thereby be subrogated to Qumax's claim. In the event of payment by a third party subrogated to the seller's claim, the retention of title described in this article shall not lapse. 13.6 In the event of subrogation as referred to in paragraph 5, Qumax shall deliver the retained title to the goods for which the third party has paid the purchase price to the subrogated third party. From the time of subrogation, the buyer shall hold the described goods for the subrogated third party. 13.7 Subrogation to the claim by and transfer of the retained title to a third party as referred to in paragraphs 5 and 6 shall not affect Buyer's right to hold Qumax liable if the seller fails in any way to fulfil the agreements concluded between them.
Article 14 – Intellectual property rights 14.1. All intellectual property rights (including copyrights and registered and unregistered design rights) in drawings, photographs, catalogues, models, designs, calculations and the like made available by Qumax to Buyer (hereinafter: “the Materials”) shall at all times remain vested in Qumax and shall never transfer to Buyer. Where these Terms and Conditions refer to “delivery” or inflections of that word, this shall not imply that a transfer of intellectual property rights is intended. Buyer shall receive only a non-exclusive, non-transferable and revocable right to use the Materials in unmodified form and for its own use, which right shall furthermore never extend beyond the expressly agreed use or the use reasonably required in the performance of the agreement. 7 14.2. Without prejudice to the general scope of Article 14.2, Buyer is expressly not permitted, in particular, to copy and/or edit the contents (including photographs) of catalogues made available by Qumax. If and insofar as Qumax makes digital photographs available to Buyer, the use of these photographs shall be permitted only for the purposes expressly indicated by Qumax, and their use on any website is prohibited unless Qumax has expressly granted its prior written consent for this. Qumax shall be entitled to withdraw its consent to the use of the Materials at any time with immediate effect, without thereby becoming liable to pay compensation to Buyer, in which case Buyer must immediately return the Materials to Qumax. 14.3. If and insofar as it is established in legal proceedings that the goods delivered by Qumax to Buyer infringe any copyright and/or design right of third parties applicable in the Netherlands, Qumax shall take back the goods against reimbursement of the purchase price paid by Buyer. The aforementioned reimbursement of the purchase price shall be Buyer's sole remedy in this regard.
Article 15 – Termination and cancellation 15.1. Without prejudice to the provisions of Article 6:265 of the Dutch Civil Code, Qumax shall be entitled to terminate by notice or dissolve the agreement concluded with Buyer, without being liable to pay compensation, if: a. Buyer is declared bankrupt, applies for bankruptcy or bankruptcy is applied for against it; b. Buyer applies for a (provisional) suspension of payments or proceeds to liquidation; c. an attachment is levied against all or part of Buyer's assets. 15.2. Unless complete or partial cancellation was excluded when the agreement with Qumax was concluded, Buyer shall be entitled, within a period of six weeks after its conclusion, but not within a period of fourteen days before the delivery date intended by Qumax, to cancel (terminate by notice) the agreement in whole or in part by means of a written declaration addressed to Qumax, against payment to Qumax of 30% of the agreed purchase price corresponding to the part of the agreement that has been cancelled. The termination shall take effect only after the aforementioned payment has been received by Qumax. Partial termination of an agreement resulting in a remaining order value lower than the minimum order value applicable to the country in which Buyer is established, or as specifically stated in Qumax's quotation or order confirmation, shall not be possible.
Article 16 – Governing law and disputes 16.1. All quotations from and agreements with Qumax shall be governed exclusively by Dutch law. GENERAL SALES TERMS AND CONDITIONS GENERAL SALES TERMS AND CONDITIONS 6 # 6 16.2. All disputes, including those regarded as such by only one party, arising from or relating to the agreement to which the Terms and Conditions apply or concerning the Terms and Conditions themselves and their interpretation or performance, both factual and legal, shall be adjudicated exclusively by the competent court in Amsterdam, unless Qumax prefers to submit the dispute to the competent court in the place of residence/establishment of Buyer. 8
Article 17 – Inconsistency between the Dutch text and translation In the event of any inconsistency between the text of the Terms and Conditions in the Dutch language and, where applicable, that in another language, the Dutch version shall be binding.
Article 18 - You have the right to cancel your order up to 14 days after receipt without stating any reason. After cancellation, you have a further 14 days to return your product. You will then be credited with the full order amount, including shipping costs. Only the costs of returning the product from your home to the online store shall be at your own expense. These costs amount to approximately 7,25 per package; consult your carrier's website for the exact rates. If you exercise your right of withdrawal, the product must be returned to the trader with all accessories supplied and - insofar as reasonably possible - in its original condition and packaging. To exercise this right, you may contact us at info@onyxjourney.nl. We will then refund the amount owed within 14 days after notification of your return, provided that the product has already been received back in good order.
Article 19 - Complaints procedure
The trader has a sufficiently publicised complaints procedure and handles complaints in accordance with this complaints procedure. Complaints about the performance of the agreement must be submitted to the trader, fully and clearly described, within 2 months after the consumer has discovered the defects. Complaints submitted to the trader shall be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeably longer processing time, the trader shall respond within the 14-day period with an acknowledgement of receipt and an indication of when the consumer can expect a more detailed answer. If the complaint cannot be resolved by mutual agreement, a dispute shall arise that is subject to the dispute resolution procedure. In the event of complaints, a consumer must first contact the trader. If the online store is affiliated with Stichting WebwinkelKeur and complaints cannot be resolved by mutual agreement, the consumer must contact Stichting WebwinkelKeur (www.webwinkelkeur.nl), which will mediate free of charge. Check whether this online store has a current membership via https://www.webwinkelkeur.nl/ledenlijst/. If no solution is reached thereafter, the consumer may have the complaint handled by the independent disputes committee appointed by Stichting WebwinkelKeur; its decision shall be binding, and both trader and consumer agree to this binding decision. Costs are associated with submitting a dispute to this disputes committee, which must be paid by the consumer to the relevant committee. It is also possible to submit complaints via the European ODR platform (http://ec.europa.eu/odr). A complaint shall not suspend the trader's obligations unless the trader indicates otherwise in writing. If the trader finds a complaint to be justified, the trader shall, at its discretion, either replace or repair the delivered products free of charge.
Registered office: Koelmalaan 350, 1812 PS Alkmaar, Floor 5 unit 18 (Office)
Chamber of Commerce number 73021245
VAT number NL859323638B01
GENERAL (SALES) TERMS AND CONDITIONS
Article 1 – Applicability of the general sales, delivery and payment terms and conditions 1.1. These general sales, delivery and payment terms and conditions (hereinafter: the “Terms and Conditions”) form part of every agreement concluded between Qumax (hereinafter: Qumax) on the one hand and any third party (hereinafter: Buyer) on the other hand, and of all quotations issued by Qumax, relating to the delivery of movable property. 1.2. The Terms and Conditions shall also, after they have become part of any agreement between Qumax and Buyer, form part of agreements subsequently concluded between Qumax and Buyer, even if the applicability of the Terms and Conditions is not referred to when those subsequent agreements are concluded. 1.3. Deviations from the Terms and Conditions shall apply only insofar as expressly agreed in writing by the parties and Qumax has accepted the deviations in writing. The deviations shall apply only to the quotation or agreement in which they were made. 1.4. The complete or partial invalidity of any provision of the Terms and Conditions shall not affect the validity of the remaining provisions of the Terms and Conditions. 1.5. The applicability of the general terms and conditions invoked by Buyer is expressly rejected by Qumax. Buyer's general or special terms and conditions are excluded, in particular insofar as those terms and conditions would relate to payment, set-off or the right to pledge or transfer claims of Qumax against Buyers.
Article 2 – Quotations and conclusion of agreements 2.1. Every quotation from Qumax is non-binding, unless expressly stipulated in writing that it is irrevocable, and shall lapse by operation of law, unless expressly stipulated otherwise in writing, after thirty (30) calendar days from the date of the quotation. Quotations from Qumax may be accepted only in writing. 2.2. Agreements between the parties shall be concluded only when the conclusion of the agreement has been confirmed in writing to Buyer on behalf of Qumax by persons authorised to do so, or 1 when Qumax has performed the agreement without reservation in a manner apparent to Buyer. Notwithstanding the foregoing, unless expressly agreed otherwise in writing, Qumax shall only be obliged to proceed with delivery of the ordered goods once the total minimum order value applicable to the country in which Buyer is established has been reached, or as specifically stated in Qumax's quotation or order confirmation. Qumax shall be entitled, without being liable to pay any compensation and without prejudice to Qumax's rights under Article 15, to dissolve or terminate by notice agreements concluded with Buyer if the aforementioned minimum order value has not been reached within a period of six weeks after the (first) agreement was concluded. 2.3. Amendments or additions to an agreement already concluded, as well as ancillary agreements, shall be binding only if confirmed by Qumax to Buyer in writing. 2.4. Drawings, images, dimensions or other delivery dates shall be binding only if expressly agreed in writing.
Article 3 – Prices 3.1. All prices stated by Qumax in its quotations are, unless expressly agreed otherwise in writing, non-binding. 3.2. All prices include tax (VAT).
Article 4 – Delivery 4.1. If Qumax shows or provides a drawing, photograph, model, design, calculation or other information, this is solely for indication purposes. The goods ultimately to be delivered may differ from those shown. 4.2. Unless agreed otherwise, delivery within the countries of the Netherlands, Belgium, Denmark, Germany, France, UK, Ireland, Italy, Luxembourg, Norway, Austria, Portugal, Spain, Sweden and Switzerland shall be free of charge. Delivery to countries other than those listed above shall be ex works. 4.3. Buyer is obliged to take delivery of the purchased goods at the time of delivery. If Buyer refuses to take delivery or is negligent in providing information or instructions necessary for delivery, the goods shall be stored at Buyer's risk. In that case, Buyer shall pay the storage costs, without prejudice to Qumax's right to demand performance and/or full compensation and to proceed to dissolve the agreement. 4.4. Buyer is obliged, on pain of forfeiture of rights, to inspect the delivered goods for any shortages or damage within 24 hours after actual delivery, or to have this inspection carried out after Qumax has notified Buyer that the goods are available to Buyer. Damaged or incomplete goods shall be taken back and (if applicable) replaced by Qumax only insofar as they are returned in the original packaging. 2
Article 5 – Partial deliveries Qumax reserves the right to deliver in parts (partial deliveries), which may be invoiced separately. Buyer shall then be obliged to pay in accordance with the provisions of Article 12 of the Terms and Conditions.
Article 6 – Delivery period 6.1. The delivery period is always stated approximately and shall not constitute a strict deadline, unless expressly agreed otherwise in writing. 6.2. Qumax shall in no respect be liable for exceeding the delivery period, regardless of the cause. Exceeding the delivery period shall not oblige Qumax to pay any compensation and shall not entitle Buyer to dissolve the agreement or refuse to take delivery, or to invoke suspension of any obligation of Buyer.
Article 7 – Force majeure 7.1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, force majeure shall mean: strikes (both organised and unorganised) at Qumax's business, a general shortage of materials and other goods or services required to perform the agreed obligation, and general transport impediments, the (whether or not attributable) failure of Qumax's suppliers to perform, strikes (both organised and unorganised) and staff shortages. 7.2. During a period of force majeure, Qumax's delivery and other obligations shall be suspended. If the period during which performance of Qumax's obligations is impossible due to force majeure lasts longer than 6 months, both parties shall be entitled to terminate the agreement in whole or in part by notice or dissolution, without any obligation to pay compensation or make restitution in that case. 7.3. Qumax shall be entitled to demand payment for work already performed in the execution of the relevant agreement before the circumstance causing the force majeure became apparent. 7.4. Qumax shall also be entitled to invoke force majeure if the circumstance constituting force majeure occurs after Qumax should already have performed.
Article 8 – Warranty 8.1. Subject to the provisions elsewhere in the Terms and Conditions, Qumax warrants that the goods delivered by it and the materials processed/used by Qumax will, for 12 months after delivery, meet the requirements normally imposed on them in commercial transactions. If Buyer has sufficiently demonstrated that the goods delivered or the materials do not meet the requirements normally imposed on them in commercial transactions, Qumax shall, at its discretion, either provide parts, repair the goods delivered, replace them, or dissolve the agreement (in whole or in part), combined with a pro rata refund of the amount already paid by Buyer, without being liable to pay compensation. 8.2. The aforementioned warranty obligation shall lapse if: 3 a. Buyer itself carries out or has carried out alteration(s) to or repair(s) of the goods delivered without Qumax's prior written approval; b. Buyer has used the goods delivered for a purpose other than their apparent intended purpose; c.Buyer has handled, used or maintained the goods delivered in an (in Qumax's reasonable opinion) improper manner; d. Buyer fails to comply with its obligations towards Qumax; e. Buyer has failed to comply with its information obligations pursuant to Article 8.7; f. Buyer is otherwise wholly or partly responsible for the defect in the goods delivered. 8.3. Any costs of dismantling, dispatch and transport shall be borne by and at the risk of Buyer. 8.4. A warranty for goods purchased elsewhere by Qumax shall be provided only if and insofar as the relevant manufacturer/supplier provides a warranty, and only to that extent. 8.5. The warranty period shall not be extended after warranty repairs. 8.6. The fact that Buyer invokes the warranty shall not release Buyer from its obligations, such as payment and taking delivery under the agreement(s) concluded with Qumax. 8.7. If the goods delivered consist wholly or partly of glass, Buyer shall properly inform the customer about the properties of and handling of this material and, more particularly, about the fact that even minor damage to tempered glass may already lead to differences in tension and subsequent (glass) breakage.
Article 9 – Complaints 9.1. Complaints must be submitted in writing and as soon as possible, but no later than, and subject to, the period stated in Article 4.4, within 7 working days after the defects have been discovered, stating precisely the nature and grounds of the complaint(s) and the alleged basis of Qumax's liability for replacement, repair or compensation. Complaints that are not or insufficiently substantiated shall not be processed by Qumax. 9.2. After the expiry of the aforementioned period, Buyer shall be deemed to have approved the goods delivered. Complaints shall then no longer be processed by Qumax. 9.3. The goods delivered may be returned only after Qumax's prior written approval, subject to the conditions determined by Qumax.
Article 10 – Liability 10.1. Qumax's liability towards Buyer is, with the exception of the provisions in the following paragraphs, limited to Qumax's fulfilment of its warranty obligations as described in Article 8. 10.2. Qumax's liability for unlawful acts committed by it is excluded, except insofar as these result from intent or wilful recklessness on the part of Qumax's managerial 4 subordinates. Qumax's liability for indirect and consequential damage suffered by Buyer as a result of an attributable failure by Qumax to fulfil its obligations under any agreement is likewise excluded, including, but expressly not limited to: loss of profit, loss of turnover, non-material damage, lost opportunities and damage to reputation, unless such damage results from intent or wilful recklessness on the part of Qumax's managerial subordinates. 10.3. Qumax's liability for direct damage suffered by Buyer that results from or is connected with an attributable failure by Qumax to fulfil its obligations towards Buyer under an agreement concluded with Buyer is limited to cases in which Buyer proves that the damage is the direct consequence of the attributable failure and is furthermore limited, per event or series of related events with a common cause, to the value agreed between the parties (excluding VAT) of the obligation(s) in the performance of which Qumax has thus culpably failed and, in that case, per delivered item, with a maximum of € 2.500,– per event or series of events with a common cause, unless a more extensive limitation follows from one of the following paragraphs. 10.4. Any claim against Qumax based on an agreement concluded with Qumax shall lapse solely by the passage of one year, unless valid legal proceedings have been instituted beforehand by service of a writ of summons. The limitation period begins on the day following the day on which Buyer became aware both of the damage and of the liable party. 10.5. All defences that Qumax may derive from the agreement concluded with Buyer to avert its liability may also be invoked against Buyer by its personnel and third parties engaged by it in the performance of the agreement, as if its personnel and those third parties themselves were parties to the agreement. 10.6. Conditions limiting, excluding or determining liability that may be invoked against Qumax by third parties may also be invoked by Qumax against Buyer.
Article 11 – Indemnification Buyer shall indemnify Qumax, its personnel and any third parties engaged by Qumax in the performance of its obligations under the agreement against all claims by other third parties for compensation for any damage allegedly or actually suffered by the latter, caused by or otherwise connected with services performed by Qumax under the agreement.
Article 12 – Payment terms 12.1. Unless expressly agreed otherwise in writing, payment of each invoiced amount must be made before delivery and in accordance with the method indicated on the invoice. Payment must be made in the agreed currency and without set-off, discount and/or suspension. Following acceptance and the granting of a credit limit by Qumax's credit insurer, Qumax may decide to allow payment within fourteen (14) calendar days after the invoice date and in the manner indicated on the invoice. In that case, Qumax shall deliver orders to Buyer only if the total amount of Buyer's outstanding debtor balance 5 plus the amount of Buyer's outstanding orders does not exceed the credit limit granted. Qumax reserves the right, based on new information from the credit insurer and/or on Buyer's payment conduct, to adjust the credit limit at its own discretion, at any time. 12.2. In the event of late payment of an invoice, Buyer shall be in default without notice of default and all of Buyer's payment obligations shall become immediately due and payable. This shall also apply if Buyer is declared bankrupt or applies for a suspension of payments. 12.3. In the event of late payment of an invoice, Buyer shall owe the statutory commercial interest (Article 6:119a of the Dutch Civil Code), increased by 2% of the invoice amount, from the invoice due date. In addition, Qumax shall be entitled to charge € 7,50 in reminder costs. 12.4. Moreover, all judicial and extrajudicial costs reasonably incurred by Qumax (including, but expressly not limited to: bailiff's costs and legal assistance costs) in connection with Buyer's failure to fulfil its obligations shall be borne by Buyer, with a minimum of 10% of the principal amount owed (including VAT) or an amount of € 250,= insofar as the latter is higher, which minimum compensation shall also be regarded as an incentive for Buyer to properly fulfil its (payment) obligations (penalty clause). 12.5. Payments made by Buyer shall always be applied first to all interest and costs owed and secondly to the invoices that have been due and payable for the longest period, even if Buyer states that the payment relates to a later invoice. 12.6. Notwithstanding the foregoing, Qumax shall at all times be entitled to demand payment in cash or, before proceeding with delivery or further performance of the work, to require Buyer to provide sufficient security for timely payment. The security shall be provided by means of an irrevocable bank guarantee issued by a reputable Dutch banking institution, or by providing other security reasonably equivalent thereto.
Article 13 – Retention of title 13.1 Delivered goods shall remain the exclusive property of Qumax as long as the buyer has not satisfied the claims relating to the consideration for: – goods delivered or to be delivered by Qumax to the buyer pursuant to the agreement, or – work or services performed or still to be performed pursuant to such an agreement for the benefit of the buyer, as well as – claims arising from failure to perform such agreements. In respect of these goods, Qumax shall also acquire (co-)ownership rights, as security for all outstanding claims against the buyer, as well as in respect of goods in which Qumax's ownership rights are lost through processing, incorporation, accession, creation of a new thing or otherwise. As soon as the buyer fails to fulfil one or more of its obligations towards Qumax, all claims of the buyer shall become immediately and fully due and payable and Qumax shall be entitled, without any notice of default or judicial intervention, to exercise the rights arising from its retention of title. 6 13.2 Before the aforementioned transfer of title, the buyer shall not be entitled to sell, deliver or otherwise dispose of the delivered goods other than in the ordinary course of its business and in accordance with the ordinary intended use of the goods. This authority shall lapse when the buyer is granted a (provisional) suspension of payments or is declared bankrupt. Under no circumstances may Buyer use goods subject to retention of title as security for claims of third parties. 13.3 Before the aforementioned transfer of title, Qumax shall at all times have access to the goods that are its property, wherever they may be located. GENERAL SALES TERMS AND CONDITIONS GENERAL SALES TERMS AND CONDITIONS 5 # 6 13.4 In the event of a violation of the provisions of this article, the buyer shall owe a penalty of 10% of the claim outstanding at the time of the violation, without prejudice to the provisions of Article 10 paragraph 6. 13.5 Buyer may agree with a third party that the latter will pay the purchase price on its behalf and will thereby be subrogated to Qumax's claim. In the event of payment by a third party subrogated to the seller's claim, the retention of title described in this article shall not lapse. 13.6 In the event of subrogation as referred to in paragraph 5, Qumax shall deliver the retained title to the goods for which the third party has paid the purchase price to the subrogated third party. From the time of subrogation, the buyer shall hold the described goods for the subrogated third party. 13.7 Subrogation to the claim by and transfer of the retained title to a third party as referred to in paragraphs 5 and 6 shall not affect Buyer's right to hold Qumax liable if the seller fails in any way to fulfil the agreements concluded between them.
Article 14 – Intellectual property rights 14.1. All intellectual property rights (including copyrights and registered and unregistered design rights) in drawings, photographs, catalogues, models, designs, calculations and the like made available by Qumax to Buyer (hereinafter: “the Materials”) shall at all times remain vested in Qumax and shall never transfer to Buyer. Where these Terms and Conditions refer to “delivery” or inflections of that word, this shall not imply that a transfer of intellectual property rights is intended. Buyer shall receive only a non-exclusive, non-transferable and revocable right to use the Materials in unmodified form and for its own use, which right shall furthermore never extend beyond the expressly agreed use or the use reasonably required in the performance of the agreement. 7 14.2. Without prejudice to the general scope of Article 14.2, Buyer is expressly not permitted, in particular, to copy and/or edit the contents (including photographs) of catalogues made available by Qumax. If and insofar as Qumax makes digital photographs available to Buyer, the use of these photographs shall be permitted only for the purposes expressly indicated by Qumax, and their use on any website is prohibited unless Qumax has expressly granted its prior written consent for this. Qumax shall be entitled to withdraw its consent to the use of the Materials at any time with immediate effect, without thereby becoming liable to pay compensation to Buyer, in which case Buyer must immediately return the Materials to Qumax. 14.3. If and insofar as it is established in legal proceedings that the goods delivered by Qumax to Buyer infringe any copyright and/or design right of third parties applicable in the Netherlands, Qumax shall take back the goods against reimbursement of the purchase price paid by Buyer. The aforementioned reimbursement of the purchase price shall be Buyer's sole remedy in this regard.
Article 15 – Termination and cancellation 15.1. Without prejudice to the provisions of Article 6:265 of the Dutch Civil Code, Qumax shall be entitled to terminate by notice or dissolve the agreement concluded with Buyer, without being liable to pay compensation, if: a. Buyer is declared bankrupt, applies for bankruptcy or bankruptcy is applied for against it; b. Buyer applies for a (provisional) suspension of payments or proceeds to liquidation; c. an attachment is levied against all or part of Buyer's assets. 15.2. Unless complete or partial cancellation was excluded when the agreement with Qumax was concluded, Buyer shall be entitled, within a period of six weeks after its conclusion, but not within a period of fourteen days before the delivery date intended by Qumax, to cancel (terminate by notice) the agreement in whole or in part by means of a written declaration addressed to Qumax, against payment to Qumax of 30% of the agreed purchase price corresponding to the part of the agreement that has been cancelled. The termination shall take effect only after the aforementioned payment has been received by Qumax. Partial termination of an agreement resulting in a remaining order value lower than the minimum order value applicable to the country in which Buyer is established, or as specifically stated in Qumax's quotation or order confirmation, shall not be possible.
Article 16 – Governing law and disputes 16.1. All quotations from and agreements with Qumax shall be governed exclusively by Dutch law. GENERAL SALES TERMS AND CONDITIONS GENERAL SALES TERMS AND CONDITIONS 6 # 6 16.2. All disputes, including those regarded as such by only one party, arising from or relating to the agreement to which the Terms and Conditions apply or concerning the Terms and Conditions themselves and their interpretation or performance, both factual and legal, shall be adjudicated exclusively by the competent court in Amsterdam, unless Qumax prefers to submit the dispute to the competent court in the place of residence/establishment of Buyer. 8
Article 17 – Inconsistency between the Dutch text and translation In the event of any inconsistency between the text of the Terms and Conditions in the Dutch language and, where applicable, that in another language, the Dutch version shall be binding.
Article 18 - You have the right to cancel your order up to 14 days after receipt without stating any reason. After cancellation, you have a further 14 days to return your product. You will then be credited with the full order amount, including shipping costs. Only the costs of returning the product from your home to the online store shall be at your own expense. These costs amount to approximately 7,25 per package; consult your carrier's website for the exact rates. If you exercise your right of withdrawal, the product must be returned to the trader with all accessories supplied and - insofar as reasonably possible - in its original condition and packaging. To exercise this right, you may contact us at info@onyxjourney.nl. We will then refund the amount owed within 14 days after notification of your return, provided that the product has already been received back in good order.
Article 19 - Complaints procedure
The trader has a sufficiently publicised complaints procedure and handles complaints in accordance with this complaints procedure. Complaints about the performance of the agreement must be submitted to the trader, fully and clearly described, within 2 months after the consumer has discovered the defects. Complaints submitted to the trader shall be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeably longer processing time, the trader shall respond within the 14-day period with an acknowledgement of receipt and an indication of when the consumer can expect a more detailed answer. If the complaint cannot be resolved by mutual agreement, a dispute shall arise that is subject to the dispute resolution procedure. In the event of complaints, a consumer must first contact the trader. If the online store is affiliated with Stichting WebwinkelKeur and complaints cannot be resolved by mutual agreement, the consumer must contact Stichting WebwinkelKeur (www.webwinkelkeur.nl), which will mediate free of charge. Check whether this online store has a current membership via https://www.webwinkelkeur.nl/ledenlijst/. If no solution is reached thereafter, the consumer may have the complaint handled by the independent disputes committee appointed by Stichting WebwinkelKeur; its decision shall be binding, and both trader and consumer agree to this binding decision. Costs are associated with submitting a dispute to this disputes committee, which must be paid by the consumer to the relevant committee. It is also possible to submit complaints via the European ODR platform (http://ec.europa.eu/odr). A complaint shall not suspend the trader's obligations unless the trader indicates otherwise in writing. If the trader finds a complaint to be justified, the trader shall, at its discretion, either replace or repair the delivered products free of charge.