Terms and conditions
Article 1: definitions
In these General terms and conditions the following
definitions apply:
1.1. Seller: Do Fashion BV, having its
registered seat at (5211 WD) Den Bosch at the address Koninginnenlaan 15, also
acting under the name “Her Can Be You”;
1.2. Buyer: any natural or legal person
that places an order with Seller;
1.3. Agreement: the Purchase
Agreement between Seller and Buyer under which goods are supplied to Buyer by
Seller.
Article 2: applicability
2.1. These General terms and conditions
apply, to the exclusion of any other general terms and conditions, to any
offer, order and any Agreements between Seller and Buyer, to which Seller
declared these terms and conditions applicable, to the extent that Parties have
not expressly deviated from these terms and conditions.
2.2. By placing an order with Seller
Buyer expressly approves of the applicability and contents of these general
terms and conditions. Any deviations from the provisions of these general terms
and conditions shall apply only if expressly agreed in writing.
2.3. In case one or more provisions
of these general terms and conditions should be void or declared invalid, the
remaining provisions shall remain in full force and effect. In that case Seller
and Buyer shall mutually consult in order to agree new provisions to replace
the invalid or voidable provisions, taking into account the intention and
purport of the original provision(s) to the extent as possible.
2.4. Any rights and privileges of
Seller that are stipulated in these general terms and conditions and any
further Agreements shall also apply to any intermediaries and other third
parties engaged by Seller.
Article 3: conclusion of Agreement
3.1. Any offers
made by Seller are free of obligation. Seller has the right to chance prices,
especially but not exclusively if that is necessary on the basis of (legal)
regulations, or when Seller’s costs of production or purchase have risen.
3.2. An Agreement is concluded only after Seller's
acceptance of the order placed by Buyer. Seller has the right to refuse orders
or attach specific conditions to delivery. If the order of Buyer is not
accepted by Seller, Buyer will be notified of that by Seller within five (5)
business days of receipt of the order by Seller.
Article 4: offers and prices
4.1. Prices quoted for the goods
offered are expressed in euro, inclusive of "btw" (Dutch VAT) and
exclusive of handling and shipping costs, unless stated otherwise or agreed
otherwise in writing.
4.2. In case of an increase in
prices of the goods and services offered between the time at which Buyer places
an order and the time of delivery of the order by Seller, Buyer has the right
to cancel the order or rescind the Agreement within five (5) business days
after notification of the price increase by Seller. In case Seller does not
receive any response from Buyer within said term of five (5) days, Buyer is
deemed to approve of said price increase.
4.3. Any statements by Seller of
prices, specifications and/or other descriptions of goods and/or services in
its website are at all times made with due care. However, Seller cannot
guarantee the accuracy of this information or the fact that no deviations of
this may occur. Agreements concluded on the basis of incorrect information
contained in its website shall not be binding on Seller, and therefore Seller
has the right to refuse orders and/or to cancel or rescind Agreements entered
into in such cases.
Article 5: samples and models
5.1. If a sample or model has
been shown or provided to Buyer, they are deemed to be provided as indications
only, unless it has been expressly agreed that the goods to be supplied will be
exactly identical.
5.2. Colours shown in the web
shop of Seller may differ from actual colours. The colours of the goods in the
web shop depend on the settings of the monitor and graphical interface of
Buyer. Therefore Buyer cannot derive any rights from the colours shown in the
web shop.
Article 6: deliveries
6.1. Transfer of
possession shall take place by shipment of the goods to Buyer to the address
specified by Buyer. Place of delivery legally (transfer of ownership) is Ex
Works.
6.2. Seller is not obliged to see to delivery in the way
as specified by Buyer until Buyer has paid the entire amount due to Seller.
6.3. The risk in the goods delivered shall pass to Buyer
at the time of delivery.
6.4. In case Buyer does not or not in a timely manner
take delivery of the goods ordered by Buyer at the time and place of delivery
agreed, Buyer shall be in default without notice of default being required. In
that case Seller has the right to store the goods at the risk and for account
of Buyer or to rescind the Agreement with Buyer, without prejudice to the right
of Seller to claim full damages.
Article 7: times of delivery
7.1. The times of
delivery specified on the website of Seller are indicative. Buyer will receive
his order without delay and in any case within thirty (30) business days after
conclusion of the Agreement, unless stated otherwise by Seller. In the latter
case Buyer will be notified of that in time. Non-observance of the time of
delivery does not give Buyer any right to damages.
7.2. In case of non-observance of the time of delivery
agreed Buyer does not have the right to rescind the Agreement, unless said
non-observance is such that Buyer cannot reasonably be expected to maintain the
Agreement (or part of the Agreement concerned).
Article 8: costs of shipping and delivery
8.1. Buyer is
obliged to pay the costs of shipping and delivery. Seller shall advise Buyer of
the amount of these costs upon placement of the order.
Article 9: payment
9.1. Immediately
after placing the order Buyer is obliged to pay to Seller the amount owed by
Buyer. The confirmation of the order by Seller is considered the invoice also.
9.2. Buyer is obliged to pay the amount due without any
deductions or set-off within fourteen days after the date at which the order
was placed by Buyer.
9.3. Buyer can effect payment by using one of the
payment methods offered during the order process. The order of Buyer may be
subject to specific (payment / ordering) conditions. In case of payment by bank
or giro the date of payment is considered the date at which the amount is
credited to the bank respectively giro account of Seller.
9.4. In case Buyer has not effected payment of the
entire amount due by Buyer within the above time of payment, Buyer shall be in
default by operation of the law without any notification or notice of default
being required. In that case Buyer is obliged to pay an interest on late
payment in the amount of 1% per month or part of a month on the unpaid part of
the amount owed by Buyer from the time at which Buyer is in default until the
day of payment in full. In case legal interest is more than 12% per year, Buyer
shall owe legal interest.
9.5. Any costs of collection, including any and all
costs of legal assistance, both in and out of court provided by any party,
shall be borne by Buyer. Any extrajudicial costs of collection incurred by
Seller in order to effectuate fulfilment of the obligations of Buyer shall be
borne by Buyer. These costs shall be calculated according to the following
collection rates advised by the "Nederlandse Orde van Advocaten"
(Dutch Bar Association) with a minimum of € 40,00 for each unpaid invoice:
15% of the principal amount of the claim, for the
first € 2.500,00 of the claim;
10% of the principal amount of the claim, for the next
€ 2.500,00 of the claim;
5% of the principal amount of the claim, for the next
€ 5.000,00 of the claim;
1% of the principal amount of the claim, for the next
€ 190.000,00 of the claim;
0,5% of the remaining principal amount with a maximum
of € 6.775,00.
9.6. Buyer is obliged to pay
legal commercial interest on the costs of collection incurred.
9.7. If Buyer
does not effect full payment in a timely manner, Seller shall also have the
right to suspend or rescind the Agreement concerned and any associated
Agreements, without prejudice to the right of Seller to demand compensation of
any damage caused to Seller.
Article 10: warranty
10.1. Seller
guarantees that, on delivery of the goods sold and supplied to Buyer, said
goods will meet any reasonable requirements for use that may apply to said
goods.
10.2. Without prejudice to the provisions in this
article no warranty shall apply in case wear of the goods is considered normal
wear and tear, as well as in the following cases:
10.3. In case of
modification of or to the goods, including repairs performed without the
permission of Seller;
10.4. In case defects in the goods were caused by inexpert use or
use that differs from their intended use;
10.5. In case damage to the goods was caused by intent, gross negligence
or carelessness on the part of Buyer.
Article 11: right of withdrawal / return within 5 business days
- On delivery of
the goods ordered Buyer is obliged to inspect without delay whether Seller
has properly performed the Agreement. In particular Buyer needs to inspect
whether the goods delivered meet the requirements of the agreement: if the
correct goods have been delivered, if the correct quantity and quality
have been delivered or, if there are no quality requirements, if the goods
are capable for normal use/normal business purposes.
- Buyer is
obliged to notify Seller immediately but no later than five (5) business
days after delivery of any visible defects found.
- Buyer is
obliged to notify Seller immediately but no later than five (5) business
days after detection of any invisible defects found Invisible defects must
be reported to Seller within 30 days after delivery.
- If Buyer
notifief Seller of a defect with just cause, Seller has the right tot
either replace the defect product, or to credit Buyer for the amount paid
for the defect product. Seller is never under the obligation to compensate
Buyer for other or further damages.
- In case Buyer
does not notify Seller within the term set above, Seller is considered to
have fully met its obligations under the Agreement entered into between the
parties. From then on claims or notifications concerning defects do not
have to be dealt with by Seller and have no (legal) consequences.
- Claims and/or
notifications as meant in this article do not give Buyer the right to
suspend payemtn, unless Seller explicitely agrees to a suspension of
payment.
- Seller reserves
the right to refuse any goods returned or sent back, or to repay only part
of the amounts already paid in case it is assumed that the goods have
already been opened, used or damaged by the fault of Buyer. In that case
Seller has the right to deduct the amount of the depreciation of the value
of the product from the amount to be repaid to Buyer.
Article 12. Retention of title
12.1. All goods delivered by Seller remain its
property until full payment of all its claims, for whatever reason, plus any
interest and costs owed thereon.
12.2. As long as full payment has not been made and
Buyer is in default or Seller has good reason to fear that Buyer will be in
default, Seller can immediately reclaim the delivered goods without prior
notice of default. Buyer grants Seller the authority to enter its sites and
buildings for this purpose.
12.3. The risk for the goods to which a retention of
title rests pursuant to paragraph 1 of this article lies with Buyer after
delivery. The latter is obliged to adequately insure the said goods, in any
case against the risks of theft, damage and destruction. Buyer is not permitted
to have any claims against its insurer under insurance as referred to in this
paragraph served to third parties. Payments in respect of damage and loss of
the goods referred to in this article shall take the place of the goods
concerned.
12.4. Buyer is obliged to immediately notify any
person who wishes to seize goods delivered by Seller, which are subject to
Seller's retention of title, or in the event of Buyer's administration or
bankruptcy itself, to immediately notify his trustee in bankruptcy or
administrator, with a copy thereof to Seller, that Seller has remained the
owner of the delivered goods, on punishment of forfeiture of an immediately due
and payable fine, which cannot be subject to judicial mitigation, in the amount
of € 5,000 or, if higher, of the original invoice amount of the goods. The fine
applies in addition to any obligation to pay compensation.
Article 13: liability
- The liability
of Seller towards Buyer, for whatever reason, shall for each event (in
which a connected series of events is considered one event) be limited to
the purchase price of the Product concerned.
- Seller is never
liable for indirect damage caused to Buyer or third parties (including
consequential damage, loss of turnover and profit, loss of data and
immaterial damage) resulting from or in connection with the Agreement or
the use of the goods ordered by Buyer.
- Seller is not
liable for non-performance or limited performance of the website,
telecommunication infrastructure and/or other errors in communication or
possible consequences of that. The contents of the website of Seller and
the contents of any other communications of Seller on the internet have
been compiled with utmost care. However, Seller cannot give any guarantees
with respect to the nature, accuracy or content matter of said
information. For that reason Seller is not liable for frequent errors,
inconsistencies, confusion, delays or unclear transmission of orders and
communications due to the use of the internet or any other (electronic)
means of communication in interactions between Seller and Buyer, or the
consequences of the use of said information. Seller further excludes any
liability with respect to advice and replies to questions given by Seller,
except in case of intent or gross negligence on the part of Seller.
Article 14: force majeure
- Seller is not
obliged to perform any obligations not being financial payment obligations
if Seller is prevented to do so on account of force majeure. Force majeure
is understood to mean a non-attributable failure in the performance of any
third parties or suppliers engaged, as well as any circumstance beyond the
actual (decisive) control of Seller.
Article 15: privacy
- Seller shall
respect the privacy of any and all visitors to its website and shall
ensure that personal information is treated confidentially. Said personal
information shall be used only in order to carry out the order completely.
- Personal
information shall not be provided by Seller to any third parties not
affiliated to Seller, except in case Buyer has explicitly approved of this
or in case it is necessary in connection with either the performance of Seller’s
obligations or legal requirements.
- The website may
contain advertisements of third parties or links to other websites. Seller
cannot influence privacy policies of such third parties or their websites,
and therefore Seller is not responsible for those.
Article 16: consumer right of withdrawal
16.1. When purchasing goods, the Buyer (consumer) has
the option to dissolve the agreement without stating reasons (right of
withdrawal) during 14 days. This reflection period starts on the day after
receipt of the product by the Buyer (consumer).
16.2. During the reflection period, the Buyer
(consumer) will handle the goods and the packaging with care. He will only
unpack or use the product to the extent necessary to assess whether he wishes
to keep the product. If he exercises his right of withdrawal, he will return
the product with all accessories supplied and - if reasonably possible - in the
original condition and packaging to the Seller, in accordance with the
reasonable and clear instructions provided by the Seller. The costs for a
return shipment are for the account of the Buyer (consumer).
16.3. In case Seller has not carried out
delivery of the goods ordered within thirty (30) days commencing on the day at
which Buyer (consumer) has placed its order with Seller, Seller shall be in
default by operation of the law, and Buyer (consumer) shall have the right to
rescind the Agreement with Seller.
16.4. Buyer (consumer) does not have the right
referred to in paragraph 1 above in case Seller has agreed a different time of
delivery with Buyer (consumer), or in case the delay in delivery cannot be
attributed to Seller, or performance has already become permanently impossible.
16.5. In case performance has become permanently
impossible because the good purchased is not available, Buyer (consumer) shall
be informed of that without delay and Buyer (consumer) shall have the right to
restitution of the amount paid to Seller by Buyer (consumer). Seller shall
repay these amounts to Buyer (consumer) within thirty (30) days after Seller
has notified Buyer (consumer) of the impossibility to deliver.
Article 17: applicable law and choice of court
17.1. Any orders and Agreements entered into
with Buyer by Seller are governed by Dutch law exclusively. The applicability
of the Vienna Sales Convention is excluded.
17.2. Any disputes resulting from or in
connection with a legal relationship between parties to which these General
terms and conditions apply, shall be submitted to the exclusive jurisdiction of
the Court of Zeeland – West Brabant.
These General terms and conditions were provided to
Buyer by Seller on conclusion of the Agreement by means of an opportunity
offered to download and store them as part of the order process, and they are
further available for inspection at the office of Seller in Den Bosch, and
shall be sent again to Buyer free of charge upon request. They are available on
the internet at: www.hercanbeyou.com