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GENERAL CONDITIONS OF SALE AND DELIVERY OF DEKKER OLIFANTA B.V.

(Filed and accessible with the Chamber of Commerce of the Netherlands, under number 28055371)

Article 1. Definitions

In these General Conditions the terms listed below have the following meaning:

Days : all calendar days;

Buyer : the Seller’s other party in an offer or agreement as referred to in Article 2.1 of these General Conditions;

Seller : Dekker Olifanta B.V., a private limited liability company, having its registered office in Warmond, the Netherlands;

Workdays : all calendar days, with the exception of Saturdays, Sundays, 1 January, Easter Monday, Ascension Day, Whit Monday, Christmas Day and Boxing Day, the days that have been or will be declared public holidays by the government, and the day on which the birthday of Her Majesty the Queen is officially celebrated;

Goods: : the Goods to be sold and delivered by the Seller.

Article 2. Applicability and validity

2.1

These General Conditions exclusively apply to all offers by the Seller and to all agreements concluded between the Seller and the Buyer.

2.2

The Seller has the right to amend and/or supplement these General Conditions. In the event of any material change the Seller will notify the Buyer of that change in writing at least one month before the amendment or supplementation enters into force. Unless the Buyer objects in writing within two weeks after the date of dispatch of that written notification, the Buyer will be deemed to have tacitly accepted the amendment or supplementation. Any purchase and other conditions of the Buyer will apply only if it has been expressly agreed in writing that they apply to the agreement to the exclusion of these General Conditions.

2.3
If one or more provisions of these General Conditions is/are invalid, the other conditions will continue to apply.

Article 3. Offer and agreement

3.1

All offers made by the Seller (offers, quotations, etc.) will be without obligation unless otherwise expressly stated in writing.

3.2

A purchase or other agreement will be concluded by the Buyer placing an order with the Seller and the Seller accepting that order by means of written confirmation and/or otherwise. An order will be deemed to have been accepted if it has been confirmed to the Buyer by the Seller or has been delivered by the Seller. Orders placed by the Buyer by telephone, e-mail or otherwise from a distance will come into effect upon confirmation or delivery by the Seller, unless the Buyer states in writing within two Workdays after receipt of the confirmation or delivery that the confirmation or delivery does not correctly represent the agreement reached.

3.3

The Buyer may change orders only if the Seller so agrees in writing. It is not possible to change an order after the order deadline stated by the Seller.

3.4

Confirmation of an order by the Seller may be given by means of e-mails, invoices or otherwise.

Article 4. Intellectual property

The Seller is the exclusive owner of all intellectual property rights, including but not limited to the trademarks, trade name rights, patent rights, design rights, copyrights and database rights that arise from or are attached to the data/pictures referred to in Article 5 and products delivered. Without the Seller's prior written consent the Buyer may not disclose to third parties and/or multiply the data/pictures referred to in Article 5.

Article 5. Data/pictures

Design drawings, working and detail drawings, models, software, photographic material, samples, designs, logos, dimensions stated, quantities, patterns, colours, materials, technical specifications and/or other data made available to the Buyer by the Seller will be only approximate descriptions of the Goods. The Seller will not be liable for the use by the Buyer of the data/pictures referred to in this Article.

Article 6. Guarantee against violation of third-party rights

The Buyer guarantees that the design drawings, working drawings and detail drawings, models, software, photographic material, samples, designs, logos, dimensions stated, quantities, patterns, colours, materials, technical specifications and/or other data made available to the Seller by the Buyer do not infringe any third-party intellectual property or other rights. The Seller will not be required to perform a further investigation of the pictures/data made available to the Seller by the Buyer. The Buyer indemnifies the Seller – both in and out of court – against any and all claims from third parties that argue that the use by the Seller of those data/pictures infringes third-party intellectual property or other rights.

Article 7. Delivery and risk

7.1

The Seller will deliver the Goods, or send them for delivery, to the agreed place(s) in the manners stated in the order or later agreed on in writing.

7.2

The Buyer will be required to take delivery of the Goods at the agreed place(s) the moment the Seller delivers them or causes them to be delivered to it, or the moment they are made available to the Buyer under the agreement. If the Buyer fails to do so, the resulting costs will be payable by the Buyer.

7.3

The risk in the Goods will pass to the Buyer the moment they are legally and/or factually delivered to the Buyer, and are thereby placed under the control of the Buyer or a third party to be designated by the Buyer.

7.4

The Seller will be required to properly and conveniently package the Goods.

7.5

If the transport takes place for the Buyer’s account and the Buyer requests the Seller to arrange for the transport, the provisions of Article 7.3 will continue to apply in full.

Article 8. Delivery terms / delivery on call

8.1

The Seller will deliver the Goods at the time/times stated in the order. If a delivery term has been agreed, it will commence on the date on which the agreement was concluded between the parties pursuant to Article 3.2. If a delivery term is exceeded, the Seller will have the right, without being required to pay any damages, to deliver the Goods after all no later than fifteen Workdays after the end of the delivery term. If the Seller has not delivered the Goods at the end of that extra (subsequent) delivery term, the Buyer will have the right to dissolve the agreement in whole or in part, after giving written notice of default while observing a notice period of fourteen Days. The agreement may be dissolved only in writing. Such dissolution may also pertain to Goods that had already been delivered under the same agreement if it is apparent from that agreement (or order confirmation) that those Goods should have been delivered as a set. In the aforesaid situation(s) the Buyer will have the right to return the Goods to the Seller for the Buyer’s account and risk and to reclaim any payments already made for those Goods.

8.2

If Goods ordered are available to the Buyer, but the Buyer does not accept the Goods upon their delivery, the Seller will have the right:

  • to deliver the Goods by means of written notification from the Seller, in which case the Goods will be stored at the Seller or at the carrier for the Buyer’s account and risk, including the risk of loss of quality, as from the moment at which that notification is given; or
  • after 30 Days of storage of the Goods by the Seller, without the Buyer having taken delivery during those 30 Days against payment of the purchase price, interest and costs due, to regard those Goods as having been relinquished by the Buyer and to use them at the Seller’s discretion or to dissolve the agreement in the manner regulated in Article 8.2(c); or
  • to dissolve the agreement with the Buyer in whole or in part in the manner regulated in Article 12 and to sell and deliver the Goods to a third party or third parties. In that case, if the Seller incurred any loss as a result of the Buyer’s failure to accept the Goods, the Buyer will be liable for that loss.

8.3

If in the event of delivery on call no terms have been set for calling in the Goods, the Seller will be entitled to full payment three months after the order was placed. If all or part of the Goods ordered has/have not yet been called in within three months, the Seller will have the right to order the Buyer in writing to state a term in writing within which the total quantity will have been called in, with which order the Buyer must comply within five Workdays, and the Goods not yet called in will be stored at the Seller or the carrier as from the first Day following that three-month period, for the Buyer’s account and risk, including the risk of loss of quality. The term to be stated by the Buyer after such a demand may not exceed a period of three months.

8.4

If the Buyer wishes to agree on a different delivery term, including but not limited to delivery at a specific time, and the Seller accepts that different delivery term, the additional costs involved in that different delivery term will be payable by the Buyer.

Article 9. Prices, invoicing and payment

9.1

All the prices agreed on between the Seller and the Buyer are net and exclusive of VAT, unless otherwise expressly stated. Invoicing will take place at the prices that apply on the date on which the order was placed. The Seller may at any time increase the agreed prices by the costs resulting from a change in price-determining factors, such as the prices of raw materials, wages, currency exchange rates and government measures.

9.2

For deliveries in the Netherlands, Germany, Austria, France, Ireland and the United Kingdom the Seller has the right, if the order amount of a batch delivered is less than € 350, to charge a maximum surcharge of € 10 in freight, handling and administrative costs.

9.3

The Seller will apply the payment conditions stated in the order confirmation and/or invoice.

9.4

Payment must be made within the stipulated payment term stated in Article 9.3, without prejudice to the Seller’s right to demand a down payment upon the conclusion of an agreement. However, the Buyer will be entitled to suspend the payment if it establishes a defect in the Goods. The Buyer will be required to inform the Seller in writing within the payment term of the defect established. The right of suspension may be exercised up to the amount corresponding with the price of the Goods that have not or not properly been delivered to the Buyer.

9.5

Payment may also be demanded upon partial deliveries.

9.6

Save for the provisions of Article 9.4, if the Buyer fails to pay the entire amounts due within the agreed term, the Buyer will be in default at the end of that term without any notice of default being required. In that case the Buyer will owe interest on the outstanding amount equal to the statutory interest for commercial transactions, as from the date on which the amount payable fell due until the date of payment, all of this without prejudice to the Seller’s other rights.

9.7

If the Buyer fails to pay the amounts due within the agreed term, the Seller will furthermore have the right to have the invoice collected in court or via the credit insurance company, in which case all the costs involved, which are set at a minimum of 10% of the claim, will be payable by the Buyer.

9.8
In the event of full or partial allowance of the claims for payment exercised by the Seller in court, the Buyer must reimburse all the procedural costs incurred by the Seller, including amounts not awarded by the court, unless the Seller is the only party that has been ordered to pay the costs of the proceedings.

9.9
Payments of invoices made by the Buyer relating to Goods will each time be regarded as payments of all the interest and costs due and then of due and payable invoices that have been unpaid the longest, even if the Buyer states that the payment relates to a later invoice.

9.10

Unless mentioned differently, all prices quoted are exclusive of taxes and/or duties/levies which will be applied by any government with respect to the products (to be) sold either before or at the time of delivery or export.

Article 10. Force majeure

10.1

Force majeure is understood to mean any circumstance, including but not limited to diseases (of any nature or kind, including the COVID-19 virus) pandemic, epidemics, negative travel advice in relevant areas (such as an area of production, transit, storage or delivery), ice conditions, extreme weather conditions, terrorist attacks, flooding, legal restrictions, strikes, government measures, supply delays, export bans, riots, war, mobilisation, transport impediments, machine defects, failure in the supply of energy, import impediments, fire, staff shortage and loss, staff illness and all other forms of force majeure that the Seller or Buyer could not reasonably take into account and as a result of which the normal performance of the agreement cannot reasonably be demanded by the other party. For reasons of force majeure, a Party may suspend its obligations, other than its payment obligations, pending the end of the force majeure situation.

10.2

The Seller or Buyer shall immediately warn the other party in writing if a case of force majeure occurs.

10.3.

In the event of force majeure, the other party shall not be entitled to any compensation, nor to any other possible legal rights such as dissolution.

10.4

If force majeure on the part of the Seller results in the agreed date or term of delivery being exceeded by more than eight (8) weeks, the other party shall be entitled to dissolve the agreement concerned by means of a written notice. This dissolution does not extend to Goods that have already been delivered.

Article 11. Retention of title and other security

11.1

Without prejudice to the provisions of these General Conditions, all Goods delivered by the Seller at any time will remain the Seller’s property until all the Seller’s claims against the Buyer that fall within the scope of Article 3:92 of the Dutch Civil Code, on any ground whatsoever and irrespective of whether they are immediately payable, including interest and costs, have been paid by the Buyer. Until the Buyer has paid all the claims, it will not have the right to pledge the Goods to third parties or to transfer possession of the Goods, with the exception of the Goods delivered by the Seller that the Buyer transfers in the context of the normal conduct of business. In the event of violation of this provision, and if Article 9.4, 9.6 and/or 9.7 applies in whole or in part, the Seller will have the right to take back all the Goods delivered by the Seller from the place where those Goods are located, without any authorisation from the Buyer or the court being required. In that case all the Seller’s claims will furthermore fall due immediately and in full.

11.2
The Buyer will be required to keep the Goods delivered subject to retention of title with the necessary care and as the Seller’s recognisable property. The risk of damage to and loss of Goods and any consequential loss involved will pass to the Buyer upon delivery of the Goods. The Buyer will be required to insure the Goods for the duration of the retention of title against damage caused by fire, water and explosion and against theft, and to give the Seller access to the insurance policies in question at its first request.

11.3

In case the Seller wishes to exercise its rights referred to in paragraph 1, the Buyer hereby already gives the Seller or a third party to be designated by the Seller unconditional and irreversible permission to gain access to all the places where property of the Seller is or may be located, and to take away such property. Any costs involved will be payable by the Buyer.

11.4

If in the Seller’s opinion the Buyer’s financial position and/or payment history so necessitates, the Seller will be entitled to demand of the Buyer before the first or subsequent deliveries that it immediately provide security in a form to be determined by the Seller and/or pays an advance. If the Buyer fails to provide the required security, the Seller will have the right, without prejudice to its other rights, immediately to suspend the further performance of the agreement without itself being liable for any damages, and any and all amounts that the Buyer owes the Seller on any ground whatsoever will fall due immediately.

Article 12. Suspension and dissolution

12.1

If the Buyer or the Seller fails to fulfil any obligation and any agreement whatsoever towards the other party, if a petition for a suspension of payment has been filed against it, it has been granted a suspension of payment, a petition in its bankruptcy has been filed or it has been declared bankrupt, it decides to liquidate its business, or the Seller or the Buyer receives information from which it is reasonably certain that the Buyer or the Seller will probably be unable to fulfil its obligations, the Seller or the Buyer will have the right to suspend all agreements that exist at that time, without any judicial intervention being required, or to dissolve them or declare them dissolved in whole or in part by registered letter, all of this without prejudice to the Seller’s or the Buyer’s other statutory rights in such an event.

12.2

Upon dissolution any claims that exist between the parties will fall due immediately.

12.3

Without prejudice to the provisions of Article 12.2, the Seller has the right to dissolve all agreements, at its own option in whole or in part, without any judicial intervention and without being liable for any damages, or to demand payment in advance for deliveries yet to be made, if:

  1. it cannot or cannot sufficiently cover the credit risks arising from the agreement(s) in question at a credit insurer of its choice; or
  1. the Buyer’s financial position deteriorates before the agreement(s) has/have been performed entirely.

12.4

Cancellation will be possible only if the Seller agrees to such cancellation in writing.

12.5

If the Seller agrees to a cancellation, the Buyer will owe the Seller 50% of the price (including VAT), unless the costs already incurred plus loss of profit exceed the amount determined in that manner, in which case the compensation will be determined on the basis of the costs actually incurred plus loss of profit.

12.6

The Buyer must furthermore at all times indemnify the Seller against any third party claims filed against it as a result of the cancellation of the agreement.

Article 13. Complaints and return shipments

13.1

The Buyer must observe the regulations regarding the manner of storage and handling of the Goods. The Buyer must check the Goods upon delivery or otherwise as soon as possible after delivery, insofar as it can be required to do so within reason and/or according to custom.

13.2

The Buyer must report any complaints regarding defective Goods to the Seller by telephone and in writing as soon as possible after delivery. In the event of visible defects, complains must be in the Seller’s possession within eight Days after receipt of the Goods. In the event of hidden defects (defects that the Buyer could not reasonably discover until later), complaints must be in the Seller’s possession within eight Days after discovery of the defect. Complaints must be accompanied by an accurate written explanation, in any event stating the nature and the ground of the complaints, the original packing slip and a statement of the invoice number in question. The filing of a valid complaint will suspend the payment obligation in relation to the Goods in dispute, in accordance with the provisions of Article 12.1.

13.3
If a complaint is valid, the Seller will be required at its option:

  1. to repair the defective good;
  1. to replace the Goods with other Goods in conformity with the order, provided that the redelivery or repair takes place within a reasonable period after the validity of the complaint has been determined; or
  1. to credit all or part of the invoice for the defective Goods.

In cases (a) to (c) the Buyer will not in any circumstance be entitled to additional damages.

13.4
If (timely) redelivery or repair under Article 13.3 is impossible, the Buyer will have the right without any notice of defect or judicial intervention to regard the purchase agreement as dissolved, after which crediting pursuant to Article 13.3(c) will take place. The provisions of Article 12.1 will apply accordingly to such dissolution.

13.5
Return shipments in connection with complaints that have not been preceded by or are not accompanied by the information referred to in the second sentence of paragraph 2 are not permitted. If the Buyer nevertheless returns Goods in contravention of this regulation, or returns Goods without a valid reason, they will be kept at the Buyer’s disposal, for the Buyer’s account and risk, insofar as they are not refused by the Seller, without the Buyer being able to base any acknowledgement of the correctness of the possible right under the guarantee thereon. The costs of any unfounded return shipments will be payable by the Buyer.

13.6

If the Seller offers the Buyer to take back Goods returned without a valid reason and the Buyer fails to respond or otherwise to comply within 30 Days, the Buyer will be deemed to have relinquished the Goods and the Seller will be entitled to destroy those Goods for the Buyer’s account and risk.

13.7

The Buyer’s right to complain is excluded in the following cases:

  • minor departures in quality, colour, size, weight, finish, pattern, etc. that are deemed permissible in the sector or that are technically unavoidable; or
  • if the Goods delivered do not differ very essentially from the information referred to in Article 5.

Article 14. Guideline Online Marketplaces

14. Buyer shall not, in any way, direct or indirect, offer or sell the Goods through any website(s), online platform, online sales channels, online marketplaces, app(lication)s etc., whenever such medium is not exploited for the account and risk of Buyer or is not explicitly exploited with the use of the trading name (and logo) of Buyer. This prohibition extends, among others, to offers and/or sale through website(s), online platform, online sales channels, online marketplaces, app(lication)s etc. in case such medium is exploited by (any) third part(y)(ies) or in case the trade name or logo of (any) third part(y)(ies) is used or presented. If the Buyer violates this prohibition, Seller is entitled to terminate the agreement(s) with Buyer and to cease all deliver(y)(ies), immediately, without being liable for any (liquidated) damages, penalt(y)(-ies) or costs. Seller is entitled to give written permission to Buyer to deviate from this prohibition; however, Seller is entitled to refuse without justification or only under acceptance by Buyer of the conditions of such deviation. Such written permission may be revoked at any time by the Seller.

Article 15. Guarantee and liability

15.1

Statements by or on behalf of the Seller regarding the quality, composition, means of application, properties and treatment of Goods delivered will serve as guarantees only if they have been expressly confirmed by the Seller in writing in the form of a guarantee.

15.2

If the Buyer performs or commissions repairs or changes during the guarantee period without the Seller’s prior consent, the Seller's guarantee obligation will lapse.

15.3

In the event of late, incorrect or improper delivery or defects of or to Goods delivered and/or packaging, the Seller will be liable for the resulting damage only:

  1. if the Seller’s insurer covers any liability involved and insofar as the Seller’s insurer pays compensation; or
  1. in the event of intent or gross recklessness of the Seller personally or executives of the Seller.

15.4

The preceding paragraph of this Article 15 also includes exclusion/limitation of liability of the Seller for damage caused by employees of the Seller, auxiliary persons engaged by the Seller, or companies that belong to the same group as the Seller.

15.5
A claim of the Buyer under this Article 15 will expire one year after the date on which the Buyer incurs the damage or the fact causing the damage commenced.

15.6
The Buyer indemnifies the Seller against any and all third-party claims regarding Goods delivered to the Buyer by the Seller and/or packaging, as a result of which that third party has incurred damage, irrespective of the cause or the moment at which the damage arose.

Article 16. Language

These General Conditions were drawn up in Dutch, German, English and French. In the event of any differences in interpretation, the text of the General Conditions in Dutch will be binding.

Article 17. Amendment to agreements

Amendments and additions to agreements concluded will be valid only if expressly agreed on in writing between the Seller and the Buyer.

Article 18. Disputes and governing law

18.1
Any and all disputes related to an agreement or the performance of an agreement between the Buyer and the Seller that cannot be solved in consultation between the parties will be presented to the competent court in the district in which the Seller has its registered office, unless the subdistrict court judge has jurisdiction. The Seller will have the right, contrary to the preceding provision, to submit the dispute to the competent court in the district in which the Buyer has its registered office.

18.2
The agreements between the Buyer and the Seller will be governed by Dutch law, to the exclusion of the Vienna Sales Convention (CISG).

(Filed and accessible with the Chamber of Commerce of the Netherlands, under number 28055371)

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