ALGEMENE VOORWAARDEN | GENERAL CONDITIONS
ALGEMENE VOORWAARDEN | GENERAL CONDITIONS
Last modified: May 26, 2015
The following definitions in these General Terms and Conditions will be used in the following meaning.
1. 10PAST10: 10PAST10 B.V., the user of these General Terms and Conditions, having its seat in Rotterdam, registered in the Trade Register under CoC number 56129475.
2. Counterparty: the natural or legal person that has concluded or envisages to conclude, with 10PAST10, an agreement.
3. Consumer: the counterparty as referred to in the previous section that does not act in the exercise of a profession or enterprise.
4. Agreement: each agreement concluded between the counterparty and 10PAST10, with which 10PAST10 has committed to the delivery of products and/or the execution of activities against a between parties agreed price.
5. Products: all goods to be sold and to be delivered in the framework of an agreement by or on behalf of 10PAST10 to the counterparty, including without limitation, watches, wristwatch bands, parts of watches and/or books.
6. Activities: all activities to be executed in the framework of an agreement by or on behalf of 10PAST10, such as repair activities.
1. These General Terms and Conditions are applicable to each offer of 10PAST10, as well as each concluded agreement to which these terms and conditions have been declared applicable.
2. These General Terms and Conditions are also applicable to agreements for the execution of which third parties will be involved.
3. The applicability of the possible terms of purchase or terms and conditions under another name of the counterparty is explicitly rejected.
4. From the stipulations in these General Terms and Conditions can solely be deviated in writing. If and insofar what parties have agreed explicitly in writing, deviates from the stipulations in these General Terms and Conditions, then shall apply what parties agreed explicitly in writing.
5. Invalidation of invalidity of one or more of the present stipulations leaves the validity of the other stipulations unaffected. In a prevalent case parties are obliged to enter into mutual consultation in order to arrange for a substituting arrangement with regard to the affected stipulation. Thereby as much as possible the purpose and the tenor of the affected stipulation will be observed.
Offer and conclusion of agreements
1. Unless a term for acceptation is stated thereon, each offer of 10PAST10 non-binding. Non-timely payment of a pro-forma invoice is regarded as a rejection by the counterparty of the offer of 10PAST10, unless 10PAST10 nevertheless is willing to comply.
2. From an offer of 10PAST10 that contains an obvious error or fault, the counterparty can derive no rights.
3. A composed price statement does not oblige 10PAST10 to the compliance with a part of the offer against a proportional part of the stated price.
4. The agreement is concluded by offer and acceptation. If the acceptation of the counterparty deviates from the offer of 10PAST10, then the agreement is not concluded in accordance with this deviating acceptation, unless 10PAST10 states differently.
5. If the counterparty concludes the agreement on behalf of another natural or legal person, then it declares by the conclusion of the agreement to be authorised thereto. The counterparty is next to this (legal) person jointly and severally liable for the compliance with the obligations from that agreement.
Sale and delivery of products
1. In case the order of the counterparty concerns goods to be treated according to its specifications, then article 5.1 and 5.2 shall be equally applicable to the sale and delivery of these products.
2. In case delivery of products is agreed, 10PAST10 determines the manner of transport and the packaging of the products. In case no specific delivery address has been stated, the address of the invoice will be regarded as delivery address.
3. 10PAST10 reserves the right to deliver orders in parts.
4. The risk of loss and damaging of the products is transferred to the counterparty on the moment that the
products by or on behalf of the counterparty have been taken into receipt.
5. Upon exceeding of the agreed delivery term, the counterparty is never authorised to refuse to take the
products to be delivered into receipt and to pay the agreed price.
6. If the products could not be delivered as a consequence of a circumstance that can be imputed to the
counterparty, then 10PAST10 shall store the products for the account and the risk of the counterparty,
notwithstanding the obligation of the counterparty to satisfy the agreed price.
7. In the case that the counterparty refuses take-off of the ordered products or otherwise is negligent to
take the products into receipt, then the counterparty shall upon first request of 10PAST10 report within which term the products after all shall be taken off. This term shall never be longer than a month after the day of the request as referred to in the previous sentence. 10PAST10 is authorised to dissolve the agreement if the counterparty, after the expiration of the term referred to in the previous sentence, still has omitted take-off of the products, notwithstanding the obligation of the counterparty to payment of the agreed price and costs for storage of the products.
8. If 10PAST10 during the application of the sections 5 up to and including 7 makes reasonable costs which would not exist if the counterparty had complied properly with the obligations referred to therein, then these costs will be for the account of the counterparty.
Execution of activities
1. If and insofar this for a proper set-up and/or execution of the agreement is required, the counterparty is obliged, whether or not upon the request of 10PAST10, as soon as required for the execution of the agreement, to provide all necessary information to 10PAST10. Furthermore the counterparty must provide 10PAST10 each time with all co-operation required for the execution of the agreement. The counterparty takes all reasonable measures to optimise the execution of the agreement.
2. Never shall 10PAST10 bear any liability for damage arisen because it relied on incorrect or incomplete data provided by or on behalf of the counterparty.
3. The risk of loss and damaging of the good to be repaired is only transferred to 10PAST10 on the moment that the good has been brought into the control of 10PAST10 and will subsequently, notwithstanding the applicable warranty conditions, revert again to the counterparty on the moment that the good has been taken into receipt by or on behalf of him.
4. The counterparty is authorised to require no later than at the conclusion of the agreement with regard to the execution of activities that 10PAST10 gives a statement of an indicative price, as well as of the term of execution of the activities. The prices and terms stated by 10PAST10 are indicative, unless parties have agreed fixed prices or terms.
5. If a target price has been agreed and this is exceeded or threatens to be exceeded with more than 10%, then 10PAST10 shall contact the counterparty to discuss the extra costs. The consumer shall be authorised to dissolve the agreement in case of such an exceeding of the price, provided that the charging thereof takes place within three months after the conclusion of the agreement. The right of dissolution as referred to here does not apply if 10PAST10 after all explicitly states to be willing to comply with the agreement within the permissible price margins as referred to in this article. In case the consumer in accordance with the above proceeds to dissolution of the agreement, the he is liable to pay the costs of the activities executed already in reasonableness by 10PAST10.
6. A specified account of executed activities will be issued upon request of the counterparty.
1. If 10PAST10 for the execution of the agreement is depending on data to be provided by the counterparty, the delivery terms do not start earlier than after 10PAST10 has received these data.
2. 10PAST10 shall make an effort to comply with the delivery terms agreed between parties, however these terms, unless explicitly agreed differently, never concern fatal terms. The default of 10PAST10 will emerge in those cases not earlier than after the counterparty has declared 10PAST10 in writing in default in which a reasonable term is stated within which 10PAST10 can comply with the agreement after all the compliance after expiration of the last mentioned term still has remained absent.
1. Unless explicitly differently is agreed, the warranty on products sold and delivered in a state of new to the counterparty is equal to the manufacturers’ warranty provided by the manufacturer of those products, which by 10PAST10, in case the manufacturers’ warranty is less than 12 months, will be extended to 12 months. The previous sentence is not applicable to delivered products that at the execution of activities by or on behalf of 10PAST10 have been used and therewith become a component of the good of the counterparty, in which cases solely section 2 will be applicable.
2. 10PAST10 warrants that the activities executed by or on behalf of it comply with the agreement and are executed in compliance with the requirements of good expertise and with making use of proper material. Unless explicitly agreed differently, 10PAST10 warrants in case of repairs the absence of defects during a term of three months after delivery, insofar those defects relate to the parts repaired or replaced by it or on its behalf.
3. A warranty provided by 10PAST10, manufacturer or importer does not affect the mandatory lawful rights and claims that consumers can make towards 10PAST10.
4. Notwithstanding the stipulations in possibly explicitly stipulated warranty conditions, any warranty becomes void if a defect of the product or the repaired good is the consequence of an external cause or otherwise cannot be imputed to 10PAST10, its suppliers or third parties employed by it. Thereunder will be understood without limitation, defects as a consequence of damaging, negligent, incorrect or
inexpert use, as well as defects as a consequence of repairs or restorations that have not been executed
with prior permission in writing of 10PAST10 by the counterparty or a third party designated by him. 5. Each warranty becomes void in case the concerned watch has been opened by the counterparty, or on
the initiative of the counterparty, by a third party, or an obvious attempt thereto has been undertaken.
Price and payments
1. Unless parties deviate there from explicitly, prices are agreed in advance. If no fixed price is agreed, the offer of 10PAST10 will state a statement of price factors as accurate as possible.
2. If the counterparty has offered goods to 10PAST10 for repair and these goods subsequently by a circumstance not to be imputed to 10PAST10 come back without repair, then the counterparty is liable for the examination costs in the amount of what has been stated in that regard on the repair ticket issued by 10PAST10.
3. 10PAST10 is at all times authorised to charge onward price increases that derive from the law to the counterparty.
4. Unless explicitly agreed differently, in case of delivery, the delivery costs will be for the account of the counterparty.
5. 10PAST10 is authorised to require entire or partial prepayment of the agreed price. In case of prepayment 10PAST10 is not earlier required to give execution to the agreement than after the prepayment has been received in full by 10PAST10.
6. Payment takes, depending on what is agreed, place by means of cash or POS payment, or by bank transfer. If a bank transfer is agreed, then payment must take place within the term stated on the invoice, in the manner prescribed by 10PAST10.
7. If no timely payment takes place, the default of the counterparty emerges by law. From the day that the default of the counterparty emerges, he is liable to pay over the outstanding amount an interest of 1% per month, whereby a part of a month will be regarded as a full month. In deviation of the previous sentence instead of the contractual interest referred to there, the interest by law shall apply in case the counterparty acts in the capacity of a consumer.
8. The stipulations in the previous section leave the rights of 10PAST10 as referred to in the following article unaffected.
9. All costs of payment of due amount with regard to which the counterparty is in default, such as (out-of) court and execution costs, as well as the costs of insurance and storage of goods to which the claim relates, will be for his account.
Non-compliance with the agreement
1. 10PAST10 is, if the circumstances justify so, authorised to suspend the execution of the agreement or to dissolve the agreement with immediate effect, if the counterparty does not, not timely or not fully comply with the obligations from the agreement, or circumstances come to the knowledge of 10PAST10 after the conclusion of the agreement, give good ground to fear that the counterparty shall not comply with his obligations.
2. 10PAST10 is authorised to keep the goods of the counterparty that it has under it in the framework of the agreement, under it for as long as the counterparty comes short in the payment of a due obligation, unless the shortcoming does not justify this right of retention.
3. The counterparty that hands over a good to 10PAST10 for the execution of an agreement therewith vests a so-called lien of hand on this good for the benefit of 10PAST10 for a further surety of payment of all that is or will become due to 10PAST10.
4. If the counterparty has not fully complied with his payment obligations regarding the execution of activities, then 10PAST10 is authorised to public sale of the encumbered good. 10PAST10 shall summon the counterparty once in writing to pay after all and announce to proceed to public sale of the good if he remains in default, after the term mentioned therein has expired. The latter term shall amount to at least three days.
5. 10PAST10 is authorised to substitute the public sale by a private sale if the costs to be expected from a public sale shall amount to more than the expected proceeds of the goods. If the proceeds of the sale of the encumbered good exceed the claims of 10PAST10, then the excess amount will, if possible, be made available to the counterparty.
1. 10PAST10 is never further liable than, insofar applicable, has been stipulated on the basis of the warranty conditions. If nevertheless still further liability of 10PAST10 exists, then that liability is limited to what has been set forth in the present General Terms and Conditions.
2. 10PAST10 points the counterparty at the limited liability of 10PAST10 in case of repair and the possibility to purchase an additional insurance. The counterparty must inform 10PAST10 as fully as possible around the specifications of the good.
3. 10PAST10 is never liable for damage as a consequence of Force Majeure, such as among others damage as a consequence of a robbery, burglary shoplifting of fire and/or when any insurance of the counterparty covers the damage.
4. Immaterial damage is never eligible for compensation.
5. 10PAST10 has at all times the right to repair the damage of the counterparty, for which 10PAST10 is
liable. The counterparty must enable 10PAST10 thereto, in the absence of which any liability of
10PAST10 becomes void.
6. 10PAST10 is never liable for damage emerged because it relied on incorrect or incomplete data
provided by or on behalf of the counterparty.
7. 10PAST10 is never liable for consequential damage, including without limitation, missed profits,
incurred loss and damage as a consequence of enterprise stagnation. If despite the stipulations in these General Terms and Conditions after all liability of 10PAST10 exists, then solely direct damage is eligible for compensation. Under direct damage will solely be understood:
the reasonable costs for the establishment of the cause and the scope of the damage, insofar the establishment relates to damage that in the sense of these General Terms and Conditions is eligible for compensation;
the possible reasonable costs made to let the defective performance of 10PAST10 comply with the agreement, insofar this can be imputed to 10PAST10;
reasonable costs, made for the prevention or limitation of damage, insofar the counterparty demonstrates that these costs have led to limitation of the damage that in the sense of these General Terms and Conditions is eligible for compensation.
8. In case of a consumer purchase the limitations of this article do not go further than is permitted according to article 7:24 section 2 of the Dutch Civil Code.
9. If on basis of the circumstances of the case a further liability of 10PAST10 should exist, then that liability is limited, at the most, the to the value of the invoice of the agreement, at least to that part of the agreement to which the liability of 10PAST10 relates, it being understood that the liability of 10PAST10 shall never amount to more than the amount that in the concerned case under the possibly concluded liability insurance of 10PAST10 actually is paid out.
10. The statute of limitations of all claims and defences towards 10PAST10 is one year. In deviation of the previous sentence the claims and defences belonging to consumers that are based on facts that would justify the argument that a consumer purchase would not comply with the agreement, will expire by the course of two years. The right to presenting of a claim or defence in relation to the existence of a defect of a product, will become void regarding a consumer purchase after the expiry of two months after discovery of the defect.
11. Except for in case of wilful intent or conscious negligence of 10PAST10, the counterparty shall safeguard 10PAST10 from all claims of third parties, on whichever basis regarding compensation of damage, costs or interests, related to the execution of the agreement by or on behalf of 10PAST10, as well as the use of the products delivered by or on behalf of 10PAST10.
12. The limitations of liability of these General Terms and Conditions apply also for the benefit of the third parties possibly employed by 10PAST10.
Retention of ownership
1. All products delivered by 10PAST10 remain its property until the counterparty has properly complied with all obligations from the agreement.
2. It is forbidden for the counterparty to sell, put a lien on or encumber in another manner the products to which the retention of ownership relates, except for insofar this, in the framework of the normal conduct of enterprise of the counterparty, must be deemed admissible.
3. If third parties put an attachment to the products on which the retention of ownership rests, or wish to vest rights or make claims thereon, then the counterparty is obliged to notify 10PAST10 hereof as soon as possible.
4. The counterparty is obliged to insure and keep insured the products on which the retention of ownership rests against fire and water damage, as well as against theft. The policy of this insurance shall upon first request be given to 10PAST10 for viewing.
5. The counterparty gives an unconditional permission to 10PAST10 or third parties designated by 10PAST10 to enter all those places where the products on which the retention of ownership rests are located. 10PAST10 is, in case of default of the counterparty, authorised to repossess the products referred to here. All reasonable costs standing in relation hereto will be for the account of the counterparty.
1. 10PAST10, or its suppliers or the third parties employed by it, reserve all rights of intellectual property on their trade and brand names, the designs, drawing and models manufactured and/or provided by them.
2. It is not permitted for the counterparty to (let) reproduce, publish or makes use of the goods referred to in section 1 in another than for which the agreement provides.
1. The consumer submits complaints about the execution of the agreement within 14 days after the defects have come to his knowledge, fully and clearly described, in writing to 10PAST10. Complaints not submitted within the set term have, except for the stipulations in article 10.10, last sentence, as a consequence that the counterparty loses his rights in that regard.
2. If the complaint processing by 10PAST10 has not led to a result satisfactory for the consumer, then the consumer can, at his discretion, present his complaint subsequently within 6 weeks after the emergence of the dispute to the so-called Bemiddelingsbureau Sieraden and Uurwerken (Postbus 904 2270 AX Voorburg, tel. 070-3866248) for a mediation attempt or to submit his dispute to the dispute committee as referred to in the following article. If the complaint has been presented to the Bemiddelingsbureau and also the mediation attempt has not led to a result satisfying for the consumer, then the consumer can present his dispute after all to the dispute committee within 6 weeks after it has become clear that the mediation attempt has not resulted in a solution.
1. Disputes between the consumer and 10PAST10 over the conclusion or the execution of agreements with regard to services and/or products delivered or to be delivered by 10PAST10, can be submitted both by the consumer as by 10PAST10 to the Geschillencommissie Sieraden and Uurwerken, Bordewijklaan 46, Postbus 90600, 2509 LP Den Haag (www.degeschillencommissie.nl).
2. A dispute will only be taken into treatment by the Geschillencommissie, if the consumer firstly has submitted his complaint to 10PAST10 and subsequently possibly to the Bemiddelingsbureau. A dispute emerges if the complaint of the consumer has not been resolved to satisfaction by 10PAST10 and/or via the mediation attempt of the Bemiddelingsbureau Sieraden and Uurwerken.
3. If no use is made of mediation, then the dispute must be submitted no later than three months after the emergence thereof to the Geschillencommissie.
4. When the consumer submits a dispute to the Geschillencommissie, then 10PAST10 is bound to this choice. If 10PAST10 wishes to submit a dispute to the Geschillencommissie, then it must ask the consumer to declare within five weeks whether he agrees with that. 10PAST10 must thereby announce that it after the expiration of the aforementioned term shall feel free to submit the dispute to the civil court.
5. The Geschillencommissie will render its verdict in accordance with the stipulations of the regulation applicable to it. The decisions of the Geschillencommissie take place on the basis of that regulation by means of a binding advice. The regulation can be sent upon request. For the treatment of a dispute payment of a fee is due.
6. Solely the civil court or the abovementioned Geschillencommissie is authorised to take knowledge of disputes.
1. Solely the laws of the Netherlands govern each agreement and all legal relations deriving there from between the counterparty and 10PAST10.
2. Parties shall only turn to the court of the Geschillencommissie as referred to in the previous article, after they have made an optimum effort to resolve the dispute in mutual consultation.
3. Insofar the law does not deviate from that mandatorily, solely the competent court within the district of the seat of business of 10PAST10 is designated to take knowledge of disputes.