General Terms and Conditions
Definitions
1. The Smooth Brothers: The Smooth Brothers V.O.F., established in Groningen, Chamber of Commerce no. 69348286.
2. Customer: the person with whom The Smooth Brothers has entered into an agreement.
3. Parties: The Smooth Brothers and customer together.
4. Consumer: a customer who is an individual acting for private purposes.
Applicability
1. These terms and conditions will apply to all quotations, offers, activities, orders, agreements and deliveries of services or products by or on behalf of The Smooth Brothers.
2. Parties can only deviate from these conditions if they have explicitly agreed upon in writing.
3. The parties expressly exclude the applicability of supplementary and/or deviating general terms and conditions of the customer or of third parties.
Prices
1. All prices used by The Smooth Brothers are in euros, are inclusive of VAT and exclusive of any other costs such as administration costs, levies and travel-, shipping- or transport expenses, unless expressly stated otherwise or agreed otherwise.
2. The Smooth Brothers is entitled to adjust all prices for its products or services, shown in its shop, on its website or otherwise, at any time.
3. Increases in the cost prices of products or parts thereof, which The Smooth Brothers could not foresee at the time of making an offer or the conclusion of the agreement, may give rise to price increases.
4. The consumer has the right to terminate an agreement as a result of a price increase as referred to in paragraph 3, unless the increase is the result of statutory regulation.
5. The price with regard to services is determined by The Smooth Brothers on the basis of the actual working hours.
6. The price is calculated according to the usual hourly rates of The Smooth Brothers, valid for the period in which he carries out the work, unless a different hourly rate has been agreed.
7. If the parties have agreed on a total amount for a service provided by The Smooth Brothers, this is always a target price, unless the parties have explicitly agreed upon in writing on a fixed price, which can not be deviated from.
8. The Smooth Brothers is entitled to deviate up to 10% of the target price.
9. If the target price exceeds 10%, The Smooth Brothers must let the customer know in due time why a higher price is justified.
10. If the target price exceeds 10%, the customer has the right to cancel the part of the order that exceeds the target price by 10%.
11. The Smooth Brothers has the right to adjust prices annually.
12. The Smooth Brothers will communicate price adjustments to the customer prior to the moment the price increase becomes effective.
13. The consumer has the right to terminate the contract with The Smooth Brothers if he does not agree with the price increase.
Payments and payment term
Products are immediately paid for in the store.
Consequences of late payment
1. If the customer does not pay within the agreed term, The Smooth Brothers is entitled to charge an interest of 1% per month from the day the customer is in default, whereby a part of a month is counted for a whole month.
2. When the customer is in default, he is also due to extrajudicial collection costs and may be obliged to pay any compensation to The Smooth Brothers.
3. The collection costs are calculated on the basis of the Reimbursement for extrajudicial collection costs.
4. If the customer does not pay on time, The Smooth Brothers may suspend its obligations until the customer has met his payment obligation.
5. In the event of liquidation, bankruptcy, attachment or suspension of payment on behalf of the customer, the claims of The Smooth Brothers on the customer are immediately due and payable.
6. If the customer refuses to cooperate with the performance of the agreement by The Smooth Brothers, he is still obliged to pay the agreed price to The Smooth Brothers.
Right of recovery of goods
1. As soon as the customer is in default, The Smooth Brothers is entitled to invoke the right of recovery with regard to the unpaid products delivered to the customer.
2. The Smooth Brothers invokes the right of recovery by means of a written or electronic announcement.
3. As soon as the customer has been informed of the claimed right of recovery, the customer must immediately return the products concerned to The Smooth Brothers, unless the parties agree to make other arrangements about this.
4. The costs for the collection or return of the products are at the expense of the customer.
Suspension of obligations by the customer
The customer waives the right to suspend the fulfillment of any obligation arising from this agreement.
Right of retention
1. The Smooth Brothers can appeal to his right of retention of title and in that case retain the products sold by The Smooth Brothers to the customer until the customer has paid all outstanding invoices with regard to The Smooth Brothers, unless the customer has provided sufficient security for these payments.
2. The right of retention of title also applies on the basis of previous agreements from which the customer still owes payments to The Smooth Brothers.
3. The Smooth Brothers is never liable for any damage that the customer may suffer as a result of using his right of retention of title.
Settlement
The customer waives his right to settle any debt to The Smooth Brothers with any claim on The Smooth Brothers.
Retention of title
1. The Smooth Brothers remains the owner of all delivered products until the customer has fully complied with all its payment obligations with regard to The Smooth Brothers under whatever agreement with The Smooth Brothers including of claims regarding the shortcomings in the performance.
2. Until then, The Smooth Brothers can invoke its retention of title and take back the goods.
3. Before the property is transferred to the customer, the customer may not pledge, sell, dispose of or otherwise encumber the products.
4. If The Smooth Brothers invokes its retention of title, the agreement will be dissolved and The Smooth Brothers has the right to claim compensation, lost profits and interest.
Insurance
1. The customer undertakes to insure and keep insured the following items adequately against fire, explosion and water damage as well as theft:
- goods delivered that are necessary for the execution of the underlying agreement
- goods being property of The Smooth Brothers that are present at the premises of the customer
- goods that have been delivered under retention of title
2. At the first request of The Smooth Brothers , the customer provides the policy for these insurances for inspection.
Storage
1. If the customer orders products later than the agreed delivery date, the risk of any quality loss is entirely for the customer.
2. Any extra costs as a result of premature or late purchase of products are entirely at the customer’s expense.
Guarantee
1. When parties have entered into an agreement with services included, these services only contain best-effort obligations for The Smooth Brothers, not obligations of results.
2. The warranty relating to products only applies to defects caused by faulty manufacture, construction or material.
3. The warranty does not apply in the event of normal wear and tear and damage resulting from accidents, changes made to the product, negligence or improper use by the customer, or when the cause of the defect can not clearly be established.
4. The risk of loss, damage or theft of the products that are the subject of an agreement between the parties, will pass on to the customer when these products are legally and/or factually delivered, at least are in the power of the customer or of a third party who receives the product for the benefit of the customer.
Performance of the agreement
1. The Smooth Brothers executes the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
2. The Smooth Brothers has the right to have the agreed services (partially) performed by third parties.
3. The execution of the agreement takes place in mutual consultation and after written agreement and payment of the possibly agreed advance by the customer.
4. It is the responsibility of the customer that The Smooth Brothers can start the implementation of the agreement on time.
5. If the customer has not ensured that The Smooth Brothers can start the implementation of the agreement in time, the resulting additional costs and/or extra hours will be charged to the customer.
Duty to inform by the customer
1. The customer shall make available to The Smooth Brothers all information, data and documents relevant to the correct execution of the agreement to in time and in the desired format and manner.
2. The customer guarantees the correctness, completeness and reliability of the information, data and documents made available, even if they originate from third parties, unless otherwise ensuing from the nature of the agreement.
3. If and insofar as the customer requests this, The Smooth Brothers will return the relevant documents.
4. If the customer does not timely and properly provides the information, data or documents reasonably required by The Smooth Brothers and the execution of the agreement is delayed because of this, the resulting additional costs and extra hours will be charged to the customer.
Duration of the agreement
1. If a fixed-term contract has been entered into, it will be tacitly converted into an open-ended contract at the end of the term, unless 1 of the parties terminates the contract with due observance of a notice period of month(s), or if a consumer terminates the agreement with due observance of a notice period of 1 month / the agreement ends at the end of the fixed term.
2. If the parties have agreed upon a term for the completion of certain activities, this is never a strict deadline, unless specified explicitly otherwise in writing. If this term is exceeded, the customer must give The Smooth Brothers a written reasonable term to terminate the activities, before it may either terminate the contract or claim damages.
Indemnity
The customer indemnifies The Smooth Brothers against all third-party claims that are related to the products and/or services supplied by The Smooth Brothers.
Complaints
1. The customer must examine a product or service provided by The Smooth Brothers as soon as possible for possible shortcomings.
2. If a delivered product or service does not comply with what the customer could reasonably expect from the agreement, the customer must inform The Smooth Brothers of this as soon as possible, but in any case within 1 month after the discovery of the shortcomings.
3. Consumers must inform The Smooth Brothers of this within two months after detection of the shortcomings.
4. The customer gives a detailed description as possible of the shortcomings, so that The Smooth Brothers is able to respond adequately.
5. The customer must demonstrate that the complaint relates to an agreement between the parties.
6. If a complaint relates to ongoing work, this can in any case not lead to The Smooth Brothers being forced to perform other work than has been agreed.
Giving notice
1. The customer must provide any notice of default to The Smooth Brothers in writing.
2. It is the responsibility of the customer that a notice of default actually reaches The Smooth Brothers (in time).
Joint and several Client liabilities
If The Smooth Brothers enters into an agreement with several customers, each of them shall be jointly and severally liable for the full amounts due to The Smooth Brothers under that agreement.
Liability of The Smooth Brothers
1. The Smooth Brothers is only liable for any damage the customer suffers if and insofar as this damage is caused by intent or gross negligence.
2. If The Smooth Brothers is liable for any damage, it is only liable for direct damages that results from or is related to the execution of an agreement.
3. The Smooth Brothers is never liable for indirect damages, such as consequential loss, lost profit, lost savings or damage to third parties.
4. If The Smooth Brothers is liable, its liability is limited to the amount paid by a closed (professional) liability insurance and in the absence of (full) payment by an insurance company of the damages the amount of the liability is limited to the (part of the) invoice to which the liability relates.
5. All images, photos, colors, drawings, descriptions on the website or in a catalog are only indicative and are only approximate and can not lead to any compensation and/or (partial) dissolution of the agreement and/or suspension of any obligation.
Expiry period
Every right of the customer to compensation from The Smooth Brothers shall, in any case, expire within 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions in article 6:89 of the Dutch Civil Code.
Dissolution
1. The customer has the right to dissolve the agreement if The Smooth Brothers imputably fails in the fulfillment of his obligations, unless this shortcoming does not justify termination due to its special nature or because it is of minor significance.
2. If the fulfillment of the obligations by The Smooth Brothers is not permanent or temporarily impossible, dissolution can only take place after The Smooth Brothers is in default.
3. The Smooth Brothers has the right to dissolve the agreement with the customer, if the customer does not fully or timely fulfill his obligations under the agreement, or if circumstances give The Smooth Brothers good grounds to fear that the customer will not be able to fulfill his obligations properly.
Force majeure
1. In addition to the provisions of article 6:75 Dutch Civil Code, a shortcoming of The Smooth Brothers in the fulfillment of any obligation to the customer cannot be attributed to The Smooth Brothers in any situation independent of the will of The Smooth Brothers, when the fulfillment of its obligations towards the customer is prevented in whole or in part or when the fulfillment of its obligations cannot reasonably be required from The Smooth Brothers .
2. The force majeure situation referred to in paragraph 1 is also applicable – but not limited to: state of emergency (such as civil war, insurrection, riots, natural disasters, etc.); defaults and force majeure of suppliers, deliverymen or other third parties; unexpected disturbances of power, electricity, internet, computer or telecoms; computer viruses, strikes, government measures, unforeseen transport problems, bad weather conditions and work stoppages.
3. If a situation of force majeure arises as a result of which The Smooth Brothers cannot fulfill one or more obligations towards the customer, these obligations will be suspended until The Smooth Brothers can comply with it.
4. From the moment that a force majeure situation has lasted at least 30 calendar days, both parties may dissolve the agreement in writing in whole or in part.
5. The Smooth Brothers does not owe any (damage) compensation in a situation of force majeure, even if it has obtained any advantages as a result of the force majeure situation.
Changes in the general terms and conditions
1. The Smooth Brothers is entitled to amend or supplement these general terms and conditions.
2. Changes of minor importance can be made at any time.
3. Major changes in content will be discussed by The Smooth Brothers with the customer in advance as much as possible.
4. Consumers are entitled to cancel the agreement in the event of a substantial change to the general terms and conditions.
Transfer of rights
1. The customer can not transfer its rights deferring from an agreement with The Smooth Brothers to third parties without the prior written consent of The Smooth Brothers .
2. This provision applies as a clause with a property law effect as referred to in Section 3:83 (2) Dutch Civil Code.
Consequences of nullity or annullability
1. If one or more provisions of these general terms and conditions prove null or annullable, this will not affect the other provisions of these terms and conditions.
2. A provision that is null or annullable shall, in that case, be replaced by a provision that comes closest to what The Smooth Brothers had in mind when drafting the conditions on that issue.
Applicable law and competent court
1. Dutch law is exclusively applicable to all agreements between the parties.
2. The Dutch court in the district where The Smooth Brothers is established is exclusively competent in case of any disputes between parties, unless the law prescribes otherwise.
