In these General Terms & Conditions the definitions will have the following meaning: Client: the purchaser/party entering into an Agreement with Pascal Smelik BV, either a Professional Purchaser or a Consumer. Pascal Smelik BV: residing at Dokter Brevéestraat 69, 3981CG, the Netherlands, Chamber of Commerce number 34361452, VAT number NL1754.01.469 which declares these General Terms & Conditions to be applicable to the Agreement. Hereinafter: “Smelik”. Agreement: the agreement between the Client and Smelik with regard to the sale and delivery of products via the Smelik webshop. Smelik webshop: the online shop through which Smelik offers products for sale. General Terms & Conditions: the terms of sale and delivery as formulated by Smelik. Consumer: the natural person which is not acting as a professional and/or for a company. Professional Purchaser: the natural person which is acting as a professional and/or for a company or the legal entity entering into an Agreement with Smelik. Website: the website through which the Smelik webshop is available. Consumer Purchase: the purchase Agreement between Smelik and a Consumer.
II. Applicability and amendments
1. These General Terms & Conditions exclusively apply to any and all offers, Agreements, sale and deliveries of products by Smelik through the Smelik webshop. Smelik explicitly rejects the applicability of any other (general) terms. The Client explicitly acknowledges and accepts that any other terms or conditions are not applicable.
2. Smelik retains the right to amend the General Terms & Conditions unilaterally. Any amendments to the General Terms & Conditions will be published on the Website.
3. With regard to the sale, purchase, delivery of special products, such as, but not limited to products of which the price is provided upon request, limited editions and products of which the purchase order/Agreement is not completed through the Webshop, Smelik is entitled to apply additional or other terms and conditions.
4. Deviation from or amendments to the General Terms & Conditions are only valid if recorded in writing and if realized with the explicit agreement of Smelik.
III. Offers and agreements
1. All offers made by Smelik are noncommittal except in case of a Consumer Purchase, and are subject to change, availability and the mentioned term of validity.
2. Unless Smelik has explicitly accepted another manner of closing the Agreement, Agreements are closed if Client has received a written (including e-mail) confirmation of his purchase by Smelik. Smelik may refuse orders or attach certain conditions to the delivery, unless otherwise explicitly determined.
3. Acceptance of an offer or the purchase of a product implies that the Client accepts the applicability of these General Terms & Conditions.
4. The Client carries full responsibility for providing Smelik with the correct details in order to enter into the Agreement.
5. Smelik is entitled to assign third parties to execute the Agreement. These General Terms & Conditions also apply to the relation with these third parties.
IV. Prices and payment
1. The prices published on the website for the products offered via/in the Smelik webshop to Clients residing in the EU are in Euros, include VAT and include costs of handling and dispatch, applicable taxes or other duties, unless otherwise notified or agreed by Smelik.
2. The prices published on the website for the products offered via/in the Smelik webshop to Clients residing outside the EU are in Euros, and include costs of handling and dispatch, applicable taxes or other duties, unless otherwise notified or agreed by Smelik.
3. Despite our efforts, a product of the Smelik webshop can be mis priced. Rest assured, however, that we verify prices as part of our dispatch procedures. If a product’s correct price is lower than our stated price, we charge the lower amount and send you the product. If a product’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before dispatch or cancel your order and notify you of such cancellation.
4. Smelik is entitled to adjust the purchase price after confirmation of a purchase order/closure of an Agreement if the prices for resources, wages, import duties, taxes or other external costs (which may be caused by currency deviations) have risen. Smelik will inform the Client as soon as possible of such adjustment, after which the Client is entitled to terminate the Agreement/cancel the purchase order, unless Smelik and Client have agreed that delivery of the products will take place more then 3 (three) months after confirmation of the purchase order or if the price adjustment is compulsory by law.
5. Payment shall take place in (one of) the manner(s) indicated during the ordering process. Your order may be governed by further (payment/ordering) conditions. The date of payment is the date that payment has been received by Smelik on its bank account. The term of delivery starts after payment of the purchase order/ products has been received by Smelik, unless Parties have agreed otherwise.
6. Upon exceeding the term of payment, the Client is in default as of the day on which full payment should have taken place and shall be bound to pay the applicable statutory interest for Consumers or for Companies. All costs made by Smelik for debt collection caused by late, incomplete or non-payment, including but not limited to extrajudicial and judicial costs, costs for bailiffs, debt collection agencies, legal proceedings, councils and lawyers will be charged to Client. The extrajudicial costs of debt collection shall amount up to 10% of the purchase order with a minimum of €150,00 excluding VAT without prejudice to Smelik’s right to alternatively claim the actual extrajudicial costs of debt collection.
7. Should the Client be in default of any payment, Smelik is entitled to cancel (realisation of) the Agreement in question and any connected agreements, or to have them rescinded.
1. The term for delivery given by Smelik is provided as an indication only and shall never constitute a fixed or fatal deadline. Should a term for delivery be exceeded, this shall not give the purchaser the right to claim compensation. Unless it concerns a Consumer Purchase, Smelik shall have to be notified in writing by Client for late delivery and shall have to be granted a reasonable term for delivery before being in default.
2. Should delivery be delayed either because a product is (temporarily) out of stock, or for other reasons, or should it not be possible to execute all or part of an order/Agreement, the Client shall be notified of this no later than three weeks after payment of the purchase. The purchaser shall in such a case have the right to cancel the order without incurring costs.
3. Smelik determines the method of transport of the goods ordered via the Smelik webshop, unless otherwise agreed.
4. The risk of and the responsibility for the products transfer to the Client at the moment of delivery. Delivery to the Client takes place at the moment that the products leave Smelik’s premises or storage. Products are considered to be delivered to a Consumer at the moment the products are delivered at the address provided by the Consumer or in absence of Consumer at the post-office, at Consumers neighbours or (with Consumers consent) another third party.
5. If a delivery is rejected by a Client the costs arising from this rejection can be charged to Client as well as the damages suffered by Smelik
VI. Cancellation of the purchase agreement
1. Purchase orders can only be altered or cancelled with Smelik’s consent. If Smelik has already made expenses or has to make expenses caused by alteration of cancellation of the purchase order, Smelik is entitled to payment of these costs by the Client except in case of purchases as mentioned in article VI.2 and VI.3.
2. In case of a distance sale Consumers are entitled to cancel the purchase agreement without a given reason within 14 working days after receipt of the products. When returning products, shipping costs are on the expenses of Consumer.
3. Consumers can only use the right to cancel the purchase agreement in case products are returned in complete, undamaged, unused state and with the original packaging. The returned products need to be in possession of Smelik no later than on the 21st day after receipt of the product by Consumer. The product to be returned needs to be stamped sufficiently. The shipping risk and proof rest with the Client. In case of cancellation of a distance sale by a Consumer as stated in VI.2 and VI.3, Smelik will take care of repayment of the purchase price as paid by Consumer within thirty days after receipt of the returned product.
4. Article VI.2 and VI.3 are not applicable to the distance sale to Consumers regarding:
a. Products of which the price is dependent on changes on the financial market which cannot be influenced by Kooij;
b. Products which are produced according to the specifications of the Consumer or;
c. Products that clearly have a personal character;
d. Can not be returned because of the nature of the product.
5. Delivered products can only be returned after prior written consent of Smelik and according to
the instructions given by Smelik with regard to the manner of returning the products.
VII. Retention of title
1. All products supplied remain the property of Smelik until the Client has complied fully with all obligations towards Smelik.
2. The Professional Purchaser shall only sell the products of which the property remains with Smelik, to third parties in the course of the usual business of this purchaser.
3. If the Professional Purchaser is in breach of one of his obligations arising from the Agreement with Smelik, or if Smelik has reasonable doubt to believe that this purchaser will not fulfill its obligations, Smelik is entitled to recall delivered products from this purchaser or from third parties which have the product(s) in possession for the purchaser. The purchaser shall cooperate with Smelik to recall the products in such case.
VIII. Defective products and complaints
1. Smelik warrants that under normal use and in accordance with the user – or installation instructions and taking into account the product specification the goods shall at the time of the delivery to Client and for a period of 12 (twelve) months from the date of delivery, be free from defects in material or workmanship and shall be conform to the product specifications.
2. Smelik’s products comply with the demands and functionalities that can reasonably be set for such products if used in the regular manner and for the purposes intended for. Certain products may be subject to minor deviations in shape and color, this depends on the material from which the products are manufactured. Smelik is considered to have met the obligation of delivery in case of such minor deviations. All information and pictures with regard to the colors, materials, sizes and details of the Products are to be considered as an indication of the product. Minor deviations of these aspects can not be a cause for return of the product, dissolution of the Agreement, price reductions or compensation of damages or costs.
3. Upon delivery, the Client is obliged to check whether the Products comply with the Agreement. Should this not be the case, the Client shall notify Smelik in writing including motivation immediately in case of deviations in the outer appearance of the product, or within 10 days of delivery in any other case. In case of a Consumer Purchase, Consumer shall notify Smelik of any defect within a period of 2 months after delivery.
4. In case the product is to be used outside the Netherlands the Client needs to verify whether the product complies with the applicable demands and/or rules and regulations.
5. A complaint cannot be accepted if the product has been used contrary to the instructions for use, the product has been used without care or has been used for a purpose other than that for which it was designed and intended.
6. If Smelik’s considers a complaint with regard to the quality requirements and quality standards of the product supplied to be justified, Smelik may choose to either accept return of the product or to replace it by a same product, or to rescind the Agreement and credit the Client for the invoice value of the product.
7. If as a result of a justified complaint, Smelik has replaced the defective product, Smelik is considered to have delivered timely, even if a statutory period set by the Client has been exceeded.
1. Smelik is not liable for damages caused by:
a. Inexpert use of the delivered product or usage for other purposes then the purposes for which the product is intended according to objective standards;
b. The provision of incorrect or incomplete information by the Client to Smelik;
c. Acts of third parties assigned by Smelik with consent of the Client;
d. Materials or services delivered by third parties upon request or with consent of the Client;
e. Misunderstandings, mutilation, delays or incomplete or abnormal receipt of orders and messages as a consequence of use of the internet or any other means of (electrical) communication.
2. Smelik shall only compensate Client for damages caused as a direct consequence of an attributable act or an attributable failure to act of Smelik. Smelik is not liable for indirect damages and costs, for example but not limited to lost profits, consequential damages, damages caused by delayed delivery, mutilated or destructed data or materials or lost turnover. In case of a Consumer Purchase this restriction is only applicable as far as allowed according to art. 7:24 sub 2 Dutch Civil Code (product liability).
3. Smelik’s total liability is limited to compensation of the amount that the insurance company pays out to Kooij. If the insurance company does not pay out any amount to Smelik and Smelik is liable for compensation of damages according to this article IX, Smelik’s total liability is limited to compensation of the amount of the invoice with regard to the relevant product delivery/purchase, which can, according to article II.3, be maximised by Smelik to a specific amount with regard to products of which the purchase price is provided to Client upon request, limited editions or with regard to purchase orders/Agreements which are not completed through the Webshop.
4. The Client shall indemnify Smelik from the consequences of any claims by third parties arising from the execution of the Agreement and which are caused by acts attributable to the Client.
5. The restrictions with regard to the liability in articles IX.1 – IX.4 are not applicable in case of:
a. Damages caused by willful misconduct or gross negligence by Smelik or its employees;
b. Product liability as mentioned in Chapter 6 Title 3, paragraph 3 Dutch Civil Act.
1. Personal Client information, obtained by Smelik as a consequence of a purchase, will only be saved and / or processed in order to fulfill its obligations arising from the Agreement, for purposes of marketing by Smelik and maintenance of a client relation with Client. In processing the personal Client information Smelik shall comply to the applicable rules and regulations, in particular the Personal Data Protection Act. The registration of personal Client information will be applied at the Dutch Data Protection Authority.
2. Client is at any time entitled to inspect its personal Client information. A request to inspect this information should be sent to Smelik at the following e-mail address: firstname.lastname@example.org
XI. Force Majeur
1. Force Majeur is taken to mean any shortcoming which may not be attributed to Smelik according to law, jurisprudence or generally accepted situations or circumstances. Force Majeur is also taken to mean import or export prohibitions by or because of a government, lack of or non-timely delivery by suppliers of Smelik , strikes or extremely high absenteeism through illness by Smelik employees or suppliers.
2. In the event of a Force Majeur situation, Smelik has the choice of either cancelling (further) execution of the Client’s order or rescinding the order without legal intervention, by informing Client of this in writing and without being held to any form of liability for damages or costs. The Client shall be obliged to pay for (part of) the product(s) that have been delivered by Smelik.
XII. Intellectual property rights
1. The Client acknowledges that Smelik is the rightful owner and/or licensee with regard to the relevant intellectual property rights concerning the (pictures of the) Smelik products, packaging, the website, texts, trademarks, trade names and logo’s, information, Smelik concepts and databases and shall entirely and unconditionally respect these rights. The Client is prohibited to reproduce and/or make available to the public any of the protected items without the prior written consent of Smelik.
2. The Client is not allowed to transfer the Agreement or any rights arising from the Agreement with Smelik to third parties.
XIII. Applicable law and competent court
1. All rights, obligations, offers, orders and Agreements to which these terms apply, as well as these General Terms & Conditions themselves, are governed by Dutch law only.
2. Any disputes between parties will be submitted to the jurisdiction of the competent Courts in the Netherlands.