General Terms and Conditions
ONYX is a trademark of Qumax Brands BV
Established: 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 terms and conditions of sale, delivery and payment 1.1. These general terms and conditions of sale, delivery and payment (hereinafter referred to as: the “Terms”) form part of every agreement concluded between Qumax (hereinafter referred to as: Qumax) on the one hand and any third party (hereinafter referred to as: Buyer) on the other hand and all agreements concluded by Qumax provided quotations, with regard to the delivery of movable property. 1.2. The Conditions will also, after they have become part of any agreement between Qumax and Buyer, form part of subsequently concluded agreements between Qumax and Buyer, even if the applicability of the Conditions was not referred to when those subsequently concluded agreements were concluded. 1.3. Deviations from the Conditions only apply insofar as they have been expressly agreed in writing by the parties and Qumax has accepted the deviations in writing. The deviations only apply to this quotation or the agreement under which they were made. 1.4. The total or partial invalidity of any provision of the Conditions does not affect the validity of the other provisions of the Conditions. 1.5. Qumax expressly rejects the application of the general conditions invoked by the Buyer. General or special conditions of the Buyer are excluded, in particular insofar as those conditions would relate to payment, settlement or the right to pledge or transfer claims of Qumax on Buyers.
Article 2 – Quotations and conclusion of agreements 2.1. Any quotation from Qumax is without obligation, unless expressly stated in writing that it is irrevocable, and expires by operation of law, unless expressly stated otherwise in writing, after thirty (30) calendar days have elapsed from the date of the quotation. Qumax quotations can only be accepted in writing. 2.2. Agreements between the parties are only concluded when the conclusion of the agreement has been confirmed in writing to the Buyer by persons authorised to do so on behalf of Qumax or 1 when Qumax has performed the agreement without reservation in a manner recognisable to the Buyer. Notwithstanding the foregoing, Qumax is, unless expressly agreed otherwise in writing, only obliged to deliver the ordered items if the total minimum order value has been reached as applicable for the country in which the Buyer is established or as specifically stated on the quotation or order confirmation from Qumax. Qumax has the right, without being liable for any compensation and without prejudice to Qumax rights under art. 15, to dissolve or terminate by notice any agreements concluded with the Buyer if the minimum order value referred to above has not been reached within a period of six weeks after the (first) agreement has been concluded. 2.3. Changes or additions to an agreement that has already been concluded, as well as side agreements, are only binding if they have been confirmed in writing to the Buyer by Qumax. 2.4. Drawings, images, dimensions or other delivery dates are only binding if they have been expressly agreed in writing.
Article 3 – Prices 3.1. All prices stated by Qumax in its quotations are not binding, unless expressly agreed in writing. 3.2. All prices include tax (VAT).
Article 4 – Delivery 4.1. If Qumax shows or provides a drawing, photo, model, design, calculation or other data, this is only by way of indication. The goods ultimately to be delivered may deviate from that shown. 4.2. Unless otherwise agreed, delivery within the countries of the Netherlands, Belgium, Denmark, Germany, France, UK, Ireland, Italy, Luxembourg, Norway, Austria, Portugal, Spain, Sweden and Switzerland will be free of charge. Delivery to countries other than those mentioned above will be ex works. 4.3. The Buyer is obliged to accept the purchased goods at the time of delivery. If the Buyer refuses to accept delivery or fails to provide information or instructions necessary for delivery, the goods will be stored at the Buyer's risk. In that case, the Buyer must pay the storage costs, without prejudice to the right of Qumax to subsequently demand performance and/or full compensation and to terminate the agreement. 4.4. Buyer is, under penalty of forfeiture of rights, obliged to check the delivered goods within 24 hours after actual delivery for any shortages or damage, or to have this check carried out after notification by Qumax that the goods are at the disposal of Buyer. Damaged or incomplete goods will only be taken back by Qumax and (possibly) replaced if they are returned in the original packaging. 2
Article 5 – Partial deliveries Qumax reserves the right to deliver in parts (partial deliveries) which can be invoiced separately. The Buyer is then obliged to pay in accordance with the provisions of Article 12 of the Conditions.
Article 6 – Delivery time 6.1. The delivery time is always approximate and is not a fatal term, unless expressly agreed otherwise in writing. 6.2. Qumax is in no way liable for exceeding the delivery time, for whatever reason. Exceeding the delivery time does not oblige Qumax to pay any compensation and does not give the Buyer the right to terminate the agreement or refuse to accept delivery, or to invoke suspension of any obligation of the Buyer.
Article 7 – Force Majeure 7.1. Force majeure shall, in addition to the provisions of Article 6:75 of the Dutch Civil Code, be understood to mean: strikes (both organised and unorganised) in the company of Qumax, a general shortage of materials and other items or services required to realise the agreed performance and general transport impediments, the (whether or not attributable) non-compliance by suppliers of Qumax, 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 in which fulfilment of obligations by Qumax is not possible 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 damages or undo in that case. 7.3. Qumax is entitled to claim payment for that which has already been performed in the execution of the relevant agreement, before the circumstance causing force majeure became apparent. 7.4. Qumax is also entitled to invoke force majeure if the circumstance causing force majeure occurs after Qumax should already have delivered the performance.
Article 8 – Warranty 8.1. Subject to the provisions elsewhere in the Conditions, Qumax guarantees that the goods delivered by it or the materials processed/used by Qumax will meet the requirements set for them in normal traffic for a period of 12 months after delivery. If the Buyer has sufficiently demonstrated that the goods delivered or the materials do not meet the requirements set for them in normal traffic, Qumax will, at its discretion, either provide parts, repair the goods delivered, replace them, or (partially or fully) terminate the agreement in combination with a pro rata refund of the amount already paid by the Buyer and without being liable for damages. 8.2. The aforementioned warranty obligation shall lapse if: 3 a. the Buyer itself makes (or has made) changes to or repairs to the goods delivered without prior written approval from Qumax; b. the Buyer has used the goods delivered for a purpose other than the apparent purpose; c. Buyer has treated, used or maintained the delivered goods in an (in Qumax's reasonable opinion) improper manner; d. Buyer fails to fulfil its obligations towards Qumax; e. Buyer has failed to fulfil its information obligations in accordance with art. 8.7; f. Buyer is otherwise wholly or partly to blame for the defect in the delivered goods. 8.3. Any costs of disassembly, shipping and transport shall be at the expense and risk of Buyer. 8.4. A guarantee for goods purchased elsewhere by Qumax is only given if and to the extent that the relevant manufacturer/supplier provides a guarantee and to the extent thereof. 8.5. The guarantee period will not be extended after guarantee repairs. 8.6. The fact that Buyer makes a claim under the guarantee does not release Buyer from its obligations, such as payment and acceptance under the agreement(s) concluded with Qumax. 8.7. If the delivered goods consist entirely or partly of glass, the buyer must properly inform the customer about the properties of and handling of this material and, more specifically, about the fact that even minimal damage to tempered glass can lead to tension differences and subsequent (glass) breakage.
Article 9 – Complaints 9.1. Complaints must be made in writing as soon as possible, but no later than and in compliance with the term stated in art. 4.4, within 7 working days after the defects have been discovered, accurately stating the nature and grounds of the complaint(s) and the alleged basis for Qumax’s liability for replacement, repair or compensation. Complaints that are not or insufficiently substantiated will not be processed by Qumax. 9.2. After the expiry of the above term, the Buyer is deemed to have approved the delivered goods. Complaints will then no longer be processed by Qumax. 9.3. Return of the delivered goods can only take place after Qumax’s prior written approval, under the conditions to be determined by Qumax.
Article 10 – Liability 10.1. Qumax’s liability towards Buyer is, with the exception of the provisions of the following articles, limited to the fulfillment by Qumax of its warranty obligations as described in article 8. 10.2. Qumax’s liability for unlawful acts committed by it is excluded, except to the extent that these are the result of intent or deliberate recklessness of managerial 4 subordinates of Qumax. Qumax’s liability for indirect and consequential damage suffered by Buyer as a result of an attributable shortcoming committed by Qumax in the fulfillment of Qumax obligations under any agreement is also excluded, such as, but expressly not limited to: lost profit, lost turnover, immaterial damage, missed opportunities and damage to reputation, unless this damage is the result of intent or deliberate recklessness of managerial subordinates of Qumax. 10.3. Qumax's liability for direct damage suffered by Buyer that is the result of or related to an attributable shortcoming on the part of Qumax in the fulfillment of its obligations towards Buyer under an agreement concluded with Buyer, is limited to those cases in which Buyer proves that the damage is the direct result of the attributable shortcoming and is further 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 fulfillment of which Qumax has thus attributably failed and then per delivered item, with a maximum of € 2,500 per event or series of events with a common cause, unless a further limitation arises from one of the following articles. 10.4. Any claim against Qumax based on an agreement concluded with Qumax shall lapse after a period of one year, unless a legally valid summons has been issued before that time. The expiry period commences on the day following the day on which Buyer became aware of both the damage and the liable party. 10.5. All defenses that Qumax can derive from the agreement concluded with Buyer to ward off its liability, can 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 the aforementioned third parties were themselves parties to the agreement. 10.6. Conditions limiting, excluding or determining liability that can be invoked against Qumax by third parties, can also be invoked by Qumax against Buyer.
Article 11 – Indemnity Buyer shall indemnify Qumax, its personnel and any third parties engaged by Qumax in connection with the performance of its obligations under the agreement against all claims by other third parties for compensation for any damage (allegedly) suffered by the latter, caused by or otherwise related to services provided 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 settlement, discount and/or suspension. After acceptance and provision of a limit by Qumax’s credit insurer, Qumax may decide to have payment made within fourteen (14) calendar days after the invoice date and in the manner indicated on the invoice. In that case, Qumax will only deliver orders to the buyer if the total amount of the buyer’s outstanding accounts receivable balance 5 increased by the amount of the buyer’s outstanding orders does not exceed the issued limit. Qumax reserves the right to adjust the limit at its own discretion at any time based on new information from the credit insurer and/or based on the buyer’s payment behaviour. 12.2. In the event of late payment of an invoice, Buyer shall be in default without notice of default and all payment obligations of Buyer 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% on the invoice amount, from the due date of the invoice. In addition, Qumax shall be entitled to charge €7.50 in reminder costs. 12.4. Furthermore, all reasonable judicial and extrajudicial costs incurred by Qumax (such as, but not limited to: bailiff's costs and the costs of legal assistance) that have been incurred in the context of the Buyer's failure to comply with its obligations shall be borne by the Buyer, with a minimum of 10% of the principal amount due (incl. VAT) or an amount of € 250,= if this is higher, which minimum compensation must (also) be seen as an incentive for the Buyer to properly comply with its (payment) obligations (penalty clause). 12.5. Payments made by the Buyer shall always be used to reduce, firstly, all interest and costs due and, secondly, the invoices that have been outstanding the longest, even if the Buyer states that the payment relates to a later invoice. 12.6. Notwithstanding the foregoing, Qumax shall at all times be entitled to demand cash payment or, prior to delivery or further execution of the work, to demand sufficient security from the Buyer for timely payment. The security shall be provided by means of an irrevocable bank guarantee with a reputable Dutch banking institution, or by means of providing other reasonably comparable security.
Article 13 – Retention of title 13.1 Delivered goods shall remain the exclusive property of Qumax until the buyer has fulfilled the claims concerning the consideration for: – goods delivered or yet to be delivered by Qumax to the buyer under the agreement, or – work or services performed or yet to be performed for the benefit of the buyer under such an agreement, as well as – claims due to failure to comply with such agreements. Qumax shall also acquire (joint) ownership of these goods, as security for all outstanding claims against the buyer, as well as for goods on which Qumax’s right of ownership is lost due to processing, accession, formation 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 authorised, 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 ownership, the buyer is not authorized to sell, deliver or otherwise alienate the delivered goods other than in accordance with his normal business and the normal destination of the goods. This authority lapses at the moment that the buyer is granted (provisional) suspension of payment or is declared bankrupt. Under no circumstances may the buyer use the item subject to retention of title as security for claims against third parties. 13.3 Before the aforementioned transfer of ownership, Qumax has access at all times to the items that are its property, wherever they are located. GENERAL TERMS AND CONDITIONS OF SALE GENERAL TERMS AND CONDITIONS OF SALE 5 # 6 13.4 In the event of a breach of the provisions of this article, the buyer shall owe a fine of 10% of the outstanding claim at the time of the breach, without prejudice to the provisions of article 10 paragraph 6. 13.5 The buyer may agree with a third party that the latter shall pay the purchase price on his behalf and shall be subrogated to Qumax's claim. In the event of payment by a third party who shall be subrogated to the seller's claim, the retention of title as described in this article shall not lapse. 13.6 In the event of subrogation as referred to in paragraph 5, Qumax shall deliver the reserved title of 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 in the claim by and transfer of the reserved ownership to a third party as referred to in paragraphs 5 and 6 shall not affect the buyer's right to hold Qumax liable in the event that 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 model rights) on drawings, photographs, catalogues, models, designs, calculations and the like made available by Qumax to Buyer (hereinafter: “the Materials”) shall at all times remain with Qumax and shall never be transferred to Buyer. Where these Conditions refer to “deliver” or conjugations of this word, it cannot be inferred that transfer of intellectual property rights is intended. Buyer shall only be granted a non-exclusive, non-transferable and revocable right to use the Materials in unchanged form and for its own use, which right shall never extend beyond the explicitly agreed use or the use that is reasonably required in the context of the performance of the agreement. 7 14.2. Without prejudice to the general scope of Article 14.2, the Buyer is specifically expressly prohibited from copying and/or editing the content (including photos) of catalogues made available by Qumax. If and to the extent that Qumax makes digital photos available to the Buyer, the use of these photos is only permitted for the purposes explicitly indicated by Qumax and their use on any website is prohibited, unless Qumax has given its express prior written consent to do so. Qumax is entitled to withdraw its consent to use the Materials at any time with immediate effect, without becoming liable for damages to the Buyer, in which case the Buyer must immediately return the Materials to Qumax. 14.3. If and to the extent that it is established in court that the items delivered by Qumax to the Buyer infringe any copyright and/or design right of third parties applicable in the Netherlands, Qumax will take back the items against reimbursement of the purchase price paid by the Buyer. The aforementioned reimbursement of the purchase price is the 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 has the right to terminate or dissolve the agreement concluded with the Buyer by giving notice, without being liable to pay damages, if: a. the Buyer is declared bankrupt, files for bankruptcy or this is filed for; b. the Buyer files for (provisional) suspension of payments or goes into liquidation; c. the assets of the Buyer or part thereof are seized. 15.2. Unless full or partial cancellation was excluded upon the conclusion of the agreement concluded with Qumax, the Buyer has the right, within a period of six weeks after the conclusion thereof, but not within a period of fourteen days prior to the delivery date intended by Qumax, to cancel (terminate) the agreement in whole or in part by means of a written statement 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 will only take effect after the aforementioned payment has been received by Qumax. Partial termination of an agreement up to a remaining order value of less than the minimum order value as applicable for the country in which the Buyer is established or as specifically stated on the quotation or order confirmation of Qumax, is not possible.
Article 16 – Applicable law and disputes 16.1. All quotations from and agreements with Qumax are exclusively governed by Dutch law. GENERAL TERMS AND CONDITIONS OF SALE GENERAL TERMS AND CONDITIONS OF SALE 6 # 6 16.2. All disputes, including those that are considered as such by only one party, arising from or related to the agreement to which the Conditions apply or concerning the Conditions themselves and their interpretation or implementation, both of a factual and legal nature, will be settled 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 the Buyer. 8
Article 17 – Inconsistency between Dutch text and translation In the event of inconsistency between the text of the 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 giving any reason. After cancellation, you have another 14 days to return your product. You will then be credited with the full order amount including shipping costs. Only the costs for returning from your home to the webshop are at your own expense. These costs amount to approximately 7.25 per package, consult the website of your carrier for the exact rates. If you make use of your right of withdrawal, the product with all accessories supplied and - if reasonably possible - in the original condition and packaging will be returned to the entrepreneur. To make use of this right, you can contact us via support@rochesterkitchen.nl . We will then refund the order amount due within 14 days after registration of your return, provided that the product has already been returned in good order.
Article 19 - Complaints procedure
The entrepreneur has a sufficiently publicised complaints procedure and handles the complaint in accordance with this complaints procedure. Complaints about the performance of the agreement must be submitted to the entrepreneur fully and clearly described within 2 months after the consumer has discovered the defects. Complaints submitted to the entrepreneur will be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeable longer processing time, the entrepreneur will respond within the period of 14 days with a confirmation 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 arises that is subject to the dispute resolution procedure. In the event of complaints, a consumer must first contact the entrepreneur. If the web shop is affiliated with Stichting WebwinkelKeur and in the event of complaints that cannot be resolved by mutual agreement, the consumer must contact Stichting WebwinkelKeur (www.webwinkelkeur.nl), which will mediate free of charge. Check whether this web shop has a current membership via https://www.webwinkelkeur.nl/ledenlijst/. If a solution is still not reached, the consumer has the option to have his complaint handled by the independent disputes committee appointed by Stichting WebwinkelKeur, the decision of which is binding and both the entrepreneur and the consumer agree to this binding decision. Submitting a dispute to this disputes committee involves costs that must be paid by the consumer to the committee in question. It is also possible to register complaints via the European ODR platform (http://ec.europa.eu/odr). A complaint does not suspend the obligations of the entrepreneur, unless the entrepreneur indicates otherwise in writing. If a complaint is found to be justified by the entrepreneur, the entrepreneur will, at its discretion, either replace or repair the delivered products free of charge.
Established: 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 terms and conditions of sale, delivery and payment 1.1. These general terms and conditions of sale, delivery and payment (hereinafter referred to as: the “Terms”) form part of every agreement concluded between Qumax (hereinafter referred to as: Qumax) on the one hand and any third party (hereinafter referred to as: Buyer) on the other hand and all agreements concluded by Qumax provided quotations, with regard to the delivery of movable property. 1.2. The Conditions will also, after they have become part of any agreement between Qumax and Buyer, form part of subsequently concluded agreements between Qumax and Buyer, even if the applicability of the Conditions was not referred to when those subsequently concluded agreements were concluded. 1.3. Deviations from the Conditions only apply insofar as they have been expressly agreed in writing by the parties and Qumax has accepted the deviations in writing. The deviations only apply to this quotation or the agreement under which they were made. 1.4. The total or partial invalidity of any provision of the Conditions does not affect the validity of the other provisions of the Conditions. 1.5. Qumax expressly rejects the application of the general conditions invoked by the Buyer. General or special conditions of the Buyer are excluded, in particular insofar as those conditions would relate to payment, settlement or the right to pledge or transfer claims of Qumax on Buyers.
Article 2 – Quotations and conclusion of agreements 2.1. Any quotation from Qumax is without obligation, unless expressly stated in writing that it is irrevocable, and expires by operation of law, unless expressly stated otherwise in writing, after thirty (30) calendar days have elapsed from the date of the quotation. Qumax quotations can only be accepted in writing. 2.2. Agreements between the parties are only concluded when the conclusion of the agreement has been confirmed in writing to the Buyer by persons authorised to do so on behalf of Qumax or 1 when Qumax has performed the agreement without reservation in a manner recognisable to the Buyer. Notwithstanding the foregoing, Qumax is, unless expressly agreed otherwise in writing, only obliged to deliver the ordered items if the total minimum order value has been reached as applicable for the country in which the Buyer is established or as specifically stated on the quotation or order confirmation from Qumax. Qumax has the right, without being liable for any compensation and without prejudice to Qumax rights under art. 15, to dissolve or terminate by notice any agreements concluded with the Buyer if the minimum order value referred to above has not been reached within a period of six weeks after the (first) agreement has been concluded. 2.3. Changes or additions to an agreement that has already been concluded, as well as side agreements, are only binding if they have been confirmed in writing to the Buyer by Qumax. 2.4. Drawings, images, dimensions or other delivery dates are only binding if they have been expressly agreed in writing.
Article 3 – Prices 3.1. All prices stated by Qumax in its quotations are not binding, unless expressly agreed in writing. 3.2. All prices include tax (VAT).
Article 4 – Delivery 4.1. If Qumax shows or provides a drawing, photo, model, design, calculation or other data, this is only by way of indication. The goods ultimately to be delivered may deviate from that shown. 4.2. Unless otherwise agreed, delivery within the countries of the Netherlands, Belgium, Denmark, Germany, France, UK, Ireland, Italy, Luxembourg, Norway, Austria, Portugal, Spain, Sweden and Switzerland will be free of charge. Delivery to countries other than those mentioned above will be ex works. 4.3. The Buyer is obliged to accept the purchased goods at the time of delivery. If the Buyer refuses to accept delivery or fails to provide information or instructions necessary for delivery, the goods will be stored at the Buyer's risk. In that case, the Buyer must pay the storage costs, without prejudice to the right of Qumax to subsequently demand performance and/or full compensation and to terminate the agreement. 4.4. Buyer is, under penalty of forfeiture of rights, obliged to check the delivered goods within 24 hours after actual delivery for any shortages or damage, or to have this check carried out after notification by Qumax that the goods are at the disposal of Buyer. Damaged or incomplete goods will only be taken back by Qumax and (possibly) replaced if they are returned in the original packaging. 2
Article 5 – Partial deliveries Qumax reserves the right to deliver in parts (partial deliveries) which can be invoiced separately. The Buyer is then obliged to pay in accordance with the provisions of Article 12 of the Conditions.
Article 6 – Delivery time 6.1. The delivery time is always approximate and is not a fatal term, unless expressly agreed otherwise in writing. 6.2. Qumax is in no way liable for exceeding the delivery time, for whatever reason. Exceeding the delivery time does not oblige Qumax to pay any compensation and does not give the Buyer the right to terminate the agreement or refuse to accept delivery, or to invoke suspension of any obligation of the Buyer.
Article 7 – Force Majeure 7.1. Force majeure shall, in addition to the provisions of Article 6:75 of the Dutch Civil Code, be understood to mean: strikes (both organised and unorganised) in the company of Qumax, a general shortage of materials and other items or services required to realise the agreed performance and general transport impediments, the (whether or not attributable) non-compliance by suppliers of Qumax, 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 in which fulfilment of obligations by Qumax is not possible 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 damages or undo in that case. 7.3. Qumax is entitled to claim payment for that which has already been performed in the execution of the relevant agreement, before the circumstance causing force majeure became apparent. 7.4. Qumax is also entitled to invoke force majeure if the circumstance causing force majeure occurs after Qumax should already have delivered the performance.
Article 8 – Warranty 8.1. Subject to the provisions elsewhere in the Conditions, Qumax guarantees that the goods delivered by it or the materials processed/used by Qumax will meet the requirements set for them in normal traffic for a period of 12 months after delivery. If the Buyer has sufficiently demonstrated that the goods delivered or the materials do not meet the requirements set for them in normal traffic, Qumax will, at its discretion, either provide parts, repair the goods delivered, replace them, or (partially or fully) terminate the agreement in combination with a pro rata refund of the amount already paid by the Buyer and without being liable for damages. 8.2. The aforementioned warranty obligation shall lapse if: 3 a. the Buyer itself makes (or has made) changes to or repairs to the goods delivered without prior written approval from Qumax; b. the Buyer has used the goods delivered for a purpose other than the apparent purpose; c. Buyer has treated, used or maintained the delivered goods in an (in Qumax's reasonable opinion) improper manner; d. Buyer fails to fulfil its obligations towards Qumax; e. Buyer has failed to fulfil its information obligations in accordance with art. 8.7; f. Buyer is otherwise wholly or partly to blame for the defect in the delivered goods. 8.3. Any costs of disassembly, shipping and transport shall be at the expense and risk of Buyer. 8.4. A guarantee for goods purchased elsewhere by Qumax is only given if and to the extent that the relevant manufacturer/supplier provides a guarantee and to the extent thereof. 8.5. The guarantee period will not be extended after guarantee repairs. 8.6. The fact that Buyer makes a claim under the guarantee does not release Buyer from its obligations, such as payment and acceptance under the agreement(s) concluded with Qumax. 8.7. If the delivered goods consist entirely or partly of glass, the buyer must properly inform the customer about the properties of and handling of this material and, more specifically, about the fact that even minimal damage to tempered glass can lead to tension differences and subsequent (glass) breakage.
Article 9 – Complaints 9.1. Complaints must be made in writing as soon as possible, but no later than and in compliance with the term stated in art. 4.4, within 7 working days after the defects have been discovered, accurately stating the nature and grounds of the complaint(s) and the alleged basis for Qumax’s liability for replacement, repair or compensation. Complaints that are not or insufficiently substantiated will not be processed by Qumax. 9.2. After the expiry of the above term, the Buyer is deemed to have approved the delivered goods. Complaints will then no longer be processed by Qumax. 9.3. Return of the delivered goods can only take place after Qumax’s prior written approval, under the conditions to be determined by Qumax.
Article 10 – Liability 10.1. Qumax’s liability towards Buyer is, with the exception of the provisions of the following articles, limited to the fulfillment by Qumax of its warranty obligations as described in article 8. 10.2. Qumax’s liability for unlawful acts committed by it is excluded, except to the extent that these are the result of intent or deliberate recklessness of managerial 4 subordinates of Qumax. Qumax’s liability for indirect and consequential damage suffered by Buyer as a result of an attributable shortcoming committed by Qumax in the fulfillment of Qumax obligations under any agreement is also excluded, such as, but expressly not limited to: lost profit, lost turnover, immaterial damage, missed opportunities and damage to reputation, unless this damage is the result of intent or deliberate recklessness of managerial subordinates of Qumax. 10.3. Qumax's liability for direct damage suffered by Buyer that is the result of or related to an attributable shortcoming on the part of Qumax in the fulfillment of its obligations towards Buyer under an agreement concluded with Buyer, is limited to those cases in which Buyer proves that the damage is the direct result of the attributable shortcoming and is further 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 fulfillment of which Qumax has thus attributably failed and then per delivered item, with a maximum of € 2,500 per event or series of events with a common cause, unless a further limitation arises from one of the following articles. 10.4. Any claim against Qumax based on an agreement concluded with Qumax shall lapse after a period of one year, unless a legally valid summons has been issued before that time. The expiry period commences on the day following the day on which Buyer became aware of both the damage and the liable party. 10.5. All defenses that Qumax can derive from the agreement concluded with Buyer to ward off its liability, can 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 the aforementioned third parties were themselves parties to the agreement. 10.6. Conditions limiting, excluding or determining liability that can be invoked against Qumax by third parties, can also be invoked by Qumax against Buyer.
Article 11 – Indemnity Buyer shall indemnify Qumax, its personnel and any third parties engaged by Qumax in connection with the performance of its obligations under the agreement against all claims by other third parties for compensation for any damage (allegedly) suffered by the latter, caused by or otherwise related to services provided 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 settlement, discount and/or suspension. After acceptance and provision of a limit by Qumax’s credit insurer, Qumax may decide to have payment made within fourteen (14) calendar days after the invoice date and in the manner indicated on the invoice. In that case, Qumax will only deliver orders to the buyer if the total amount of the buyer’s outstanding accounts receivable balance 5 increased by the amount of the buyer’s outstanding orders does not exceed the issued limit. Qumax reserves the right to adjust the limit at its own discretion at any time based on new information from the credit insurer and/or based on the buyer’s payment behaviour. 12.2. In the event of late payment of an invoice, Buyer shall be in default without notice of default and all payment obligations of Buyer 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% on the invoice amount, from the due date of the invoice. In addition, Qumax shall be entitled to charge €7.50 in reminder costs. 12.4. Furthermore, all reasonable judicial and extrajudicial costs incurred by Qumax (such as, but not limited to: bailiff's costs and the costs of legal assistance) that have been incurred in the context of the Buyer's failure to comply with its obligations shall be borne by the Buyer, with a minimum of 10% of the principal amount due (incl. VAT) or an amount of € 250,= if this is higher, which minimum compensation must (also) be seen as an incentive for the Buyer to properly comply with its (payment) obligations (penalty clause). 12.5. Payments made by the Buyer shall always be used to reduce, firstly, all interest and costs due and, secondly, the invoices that have been outstanding the longest, even if the Buyer states that the payment relates to a later invoice. 12.6. Notwithstanding the foregoing, Qumax shall at all times be entitled to demand cash payment or, prior to delivery or further execution of the work, to demand sufficient security from the Buyer for timely payment. The security shall be provided by means of an irrevocable bank guarantee with a reputable Dutch banking institution, or by means of providing other reasonably comparable security.
Article 13 – Retention of title 13.1 Delivered goods shall remain the exclusive property of Qumax until the buyer has fulfilled the claims concerning the consideration for: – goods delivered or yet to be delivered by Qumax to the buyer under the agreement, or – work or services performed or yet to be performed for the benefit of the buyer under such an agreement, as well as – claims due to failure to comply with such agreements. Qumax shall also acquire (joint) ownership of these goods, as security for all outstanding claims against the buyer, as well as for goods on which Qumax’s right of ownership is lost due to processing, accession, formation 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 authorised, 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 ownership, the buyer is not authorized to sell, deliver or otherwise alienate the delivered goods other than in accordance with his normal business and the normal destination of the goods. This authority lapses at the moment that the buyer is granted (provisional) suspension of payment or is declared bankrupt. Under no circumstances may the buyer use the item subject to retention of title as security for claims against third parties. 13.3 Before the aforementioned transfer of ownership, Qumax has access at all times to the items that are its property, wherever they are located. GENERAL TERMS AND CONDITIONS OF SALE GENERAL TERMS AND CONDITIONS OF SALE 5 # 6 13.4 In the event of a breach of the provisions of this article, the buyer shall owe a fine of 10% of the outstanding claim at the time of the breach, without prejudice to the provisions of article 10 paragraph 6. 13.5 The buyer may agree with a third party that the latter shall pay the purchase price on his behalf and shall be subrogated to Qumax's claim. In the event of payment by a third party who shall be subrogated to the seller's claim, the retention of title as described in this article shall not lapse. 13.6 In the event of subrogation as referred to in paragraph 5, Qumax shall deliver the reserved title of 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 in the claim by and transfer of the reserved ownership to a third party as referred to in paragraphs 5 and 6 shall not affect the buyer's right to hold Qumax liable in the event that 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 model rights) on drawings, photographs, catalogues, models, designs, calculations and the like made available by Qumax to Buyer (hereinafter: “the Materials”) shall at all times remain with Qumax and shall never be transferred to Buyer. Where these Conditions refer to “deliver” or conjugations of this word, it cannot be inferred that transfer of intellectual property rights is intended. Buyer shall only be granted a non-exclusive, non-transferable and revocable right to use the Materials in unchanged form and for its own use, which right shall never extend beyond the explicitly agreed use or the use that is reasonably required in the context of the performance of the agreement. 7 14.2. Without prejudice to the general scope of Article 14.2, the Buyer is specifically expressly prohibited from copying and/or editing the content (including photos) of catalogues made available by Qumax. If and to the extent that Qumax makes digital photos available to the Buyer, the use of these photos is only permitted for the purposes explicitly indicated by Qumax and their use on any website is prohibited, unless Qumax has given its express prior written consent to do so. Qumax is entitled to withdraw its consent to use the Materials at any time with immediate effect, without becoming liable for damages to the Buyer, in which case the Buyer must immediately return the Materials to Qumax. 14.3. If and to the extent that it is established in court that the items delivered by Qumax to the Buyer infringe any copyright and/or design right of third parties applicable in the Netherlands, Qumax will take back the items against reimbursement of the purchase price paid by the Buyer. The aforementioned reimbursement of the purchase price is the 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 has the right to terminate or dissolve the agreement concluded with the Buyer by giving notice, without being liable to pay damages, if: a. the Buyer is declared bankrupt, files for bankruptcy or this is filed for; b. the Buyer files for (provisional) suspension of payments or goes into liquidation; c. the assets of the Buyer or part thereof are seized. 15.2. Unless full or partial cancellation was excluded upon the conclusion of the agreement concluded with Qumax, the Buyer has the right, within a period of six weeks after the conclusion thereof, but not within a period of fourteen days prior to the delivery date intended by Qumax, to cancel (terminate) the agreement in whole or in part by means of a written statement 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 will only take effect after the aforementioned payment has been received by Qumax. Partial termination of an agreement up to a remaining order value of less than the minimum order value as applicable for the country in which the Buyer is established or as specifically stated on the quotation or order confirmation of Qumax, is not possible.
Article 16 – Applicable law and disputes 16.1. All quotations from and agreements with Qumax are exclusively governed by Dutch law. GENERAL TERMS AND CONDITIONS OF SALE GENERAL TERMS AND CONDITIONS OF SALE 6 # 6 16.2. All disputes, including those that are considered as such by only one party, arising from or related to the agreement to which the Conditions apply or concerning the Conditions themselves and their interpretation or implementation, both of a factual and legal nature, will be settled 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 the Buyer. 8
Article 17 – Inconsistency between Dutch text and translation In the event of inconsistency between the text of the 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 giving any reason. After cancellation, you have another 14 days to return your product. You will then be credited with the full order amount including shipping costs. Only the costs for returning from your home to the webshop are at your own expense. These costs amount to approximately 7.25 per package, consult the website of your carrier for the exact rates. If you make use of your right of withdrawal, the product with all accessories supplied and - if reasonably possible - in the original condition and packaging will be returned to the entrepreneur. To make use of this right, you can contact us via support@rochesterkitchen.nl . We will then refund the order amount due within 14 days after registration of your return, provided that the product has already been returned in good order.
Article 19 - Complaints procedure
The entrepreneur has a sufficiently publicised complaints procedure and handles the complaint in accordance with this complaints procedure. Complaints about the performance of the agreement must be submitted to the entrepreneur fully and clearly described within 2 months after the consumer has discovered the defects. Complaints submitted to the entrepreneur will be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeable longer processing time, the entrepreneur will respond within the period of 14 days with a confirmation 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 arises that is subject to the dispute resolution procedure. In the event of complaints, a consumer must first contact the entrepreneur. If the web shop is affiliated with Stichting WebwinkelKeur and in the event of complaints that cannot be resolved by mutual agreement, the consumer must contact Stichting WebwinkelKeur (www.webwinkelkeur.nl), which will mediate free of charge. Check whether this web shop has a current membership via https://www.webwinkelkeur.nl/ledenlijst/. If a solution is still not reached, the consumer has the option to have his complaint handled by the independent disputes committee appointed by Stichting WebwinkelKeur, the decision of which is binding and both the entrepreneur and the consumer agree to this binding decision. Submitting a dispute to this disputes committee involves costs that must be paid by the consumer to the committee in question. It is also possible to register complaints via the European ODR platform (http://ec.europa.eu/odr). A complaint does not suspend the obligations of the entrepreneur, unless the entrepreneur indicates otherwise in writing. If a complaint is found to be justified by the entrepreneur, the entrepreneur will, at its discretion, either replace or repair the delivered products free of charge.