- @Bird-Covers BV: established in Westhavenweg 54-1 Unit 4, 1042 AL Amsterdam under Chamber of Commerce no. 76460835.
- Customer: the person with whom @Bird-Covers BV has entered into an agreement.
- Parties: @Bird-Covers BV and customer together.
- Consumer: a customer who is also an individual and who acts as a private person.
Applicability of general terms and conditions
- These conditions apply to all offers; offers, activities, orders, agreements and deliveries of services or products by or on behalf of @Bird-Covers BV.
- Parties can only deviate from these conditions if they have expressly agreed in writing.
- Parties explicitly exclude the applicability of additional and / or deviating general terms and conditions from the customer or from third parties.
- All prices at @Bird-Covers BV are in euros, include VAT and exclude any other costs such as taxes, administration costs, levies and travel, shipping or transport costs, unless expressly stated otherwise or agreed otherwise.
- All prices on @Bird-Covers BV for its products or services, on its website or that are otherwise made known, @Bird-Covers BV may change at any time.
- Increases in the cost prices of products or parts there of, which @Bird-Covers BV could not foresee at the time of making the offer or the conclusion of the agreement, may give rise to price increases.
- The consumer has the right to dissolve an agreement as a result of a price increase as referred to in paragraph 3, unless the increase is the result of a statutory regulation.
Samples / models
- If the customer has received a sample or model of a product, he/she cannot derive any rights from it other than that it is an indication of the nature of the product, unless the parties have expressly agreed that the products to be delivered correspond to the sample or model.
Consequences of not paying on time
- If the customer does not pay within the agreed term, @Bird-Covers BV entitled to charge an interest of 1% per month from the day that the customer is in default, whereby part of a month is counted as a whole month.
- If the customer is in default, he/she will also owe extrajudicial collection costs and any compensation to @Bird-Covers BV.
- The collection costs are calculated on the basis of the Decree on compensation for extrajudicial collection costs.
- If the customer does not pay on time, @Bird-Covers BV suspend his obligations until the customer has fulfilled his payment obligation.
- In the event of liquidation, bankruptcy, attachment or suspension of payment on the part of the customer, the claims of @Bird-Covers BV immediately due and payable.
- If the customer refuses to cooperate with the execution of the agreement by @Bird-Covers BV, he/she is still obliged to pay the agreed price to @Bird-Covers BV.
Right to claim
- As soon as the customer is in default, @Bird-Covers BV entitled to invoke the right of complaint with regard to the unpaid products delivered to the customer.
- @Bird-Covers BV invokes the right to complain by means of a written or electronic communication.
- As soon as the customer has been informed of the invoked right of complaint, the customer must immediately return the products to which this right relates to @Bird-Covers BV, unless the parties make other agreements about this.
- The costs for returning the products will be borne by the customer.
Right of withdrawal
- A consumer can cancel an online purchase during a reflection period of 14 days without giving any reason, provided that:
- the product has not been used
- it is not a product that can spoil quickly, such as food or flowers
- it is not a product that has been custom-made or adapted especially for the consumer
- it is not a product that cannot be returned for hygienic reasons (underwear, swimwear, etc.)
- the seal is still intact, if it concerns data carriers with digital content (DVDs, CDs, etc.)
- the product is not a travel, transport ticket, catering order or form of leisure activity
- the product is not a separate magazine or newspaper
- it does not concern an (order for) emergency repair
- the consumer has not waived his right of withdrawal
- The reflection period of 14 days as referred to in paragraph 1 commences:
- on the day after the consumer has received the last product or part of 1 order
- The consumer can make his appeal to the right of withdrawal known via email@example.com, if desired using the withdrawal form that can be requested on the website, www.bird.shop.
- The consumer is obliged to return the product to @Bird-Covers BV within 14 days after the notification of his right of withdrawal, failing which his right of withdrawal will lapse.
- If the purchase costs and any other costs (such as shipping and return costs) are eligible for reimbursement by law, @Bird-Covers BV will reimburse these costs to the consumer within 14 days after receipt of the timely appeal to the right of withdrawal, on condition that the consumer has returned the product to @Bird-Covers BV in time.
Unless the customer is a consumer, the customer waives the right to suspend the fulfillment of any obligation arising from this agreement.
Right of retention
- @Bird-Covers BV can invoke his right of retention and in that case keep customer’s products under his control, until the customer has paid all outstanding invoices with regard to @Bird-Covers BV, unless the customer for those costs has provided sufficient security.
- The right of retention also applies on the basis of previous agreements from which the customer still owes payments to @Bird-Covers BV.
- @Bird-Covers BV is never liable for any damage that the customer may suffer as a result of using his right of retention.
Unless the customer is a consumer, the customer waives his/her right to set off a debt to @Bird-Covers BV with a claim on @Bird-Covers BV.
Retention of title
- @Bird-Covers BV remains owner of all delivered products until the customer has fully fulfilled all his/her payment obligations towards @Bird-Covers BV under any agreement concluded with @Bird-Covers BV, including claims for failure to perform.
- Until then @Bird-Covers BV invoke his retention of title and take things back.
- Before ownership is transferred to the customer, the customer may not pledge, sell, dispose of or otherwise encumber the products.
- If @Bird-Covers BV invokes his retention of title, the agreement will be considered dissolved and @Bird-Covers BV will have the right to claim damages, lost profit and interest.
- Delivery takes place while supplies last.
- Delivery takes place at @Bird-Covers BV, unless parties have agreed otherwise.
- Delivery of products ordered online takes place at the address indicated by the customer.
- If the agreed amounts are not or not paid on time, @Bird-Covers BV has the right to suspend its obligations until the agreed part has been paid.
- In the event of late payment, there is a default on creditors, with the consequence that the customer cannot object late delivery to @Bird-Covers BV.
- The by @Bird-Covers BV stated delivery times are indicative and, if exceeded, do not entitle the customer to termination or compensation, unless the parties have expressly agreed otherwise in writing.
- The delivery time commences when the customer has completed the (electronic) ordering process and has received an (electronic confirmation) from @Bird-Covers BV.
- Exceeding the specified delivery time does not entitle the customer to compensation or the right to terminate the agreement, unless @Bird-Covers BV cannot deliver within 14 days after being notified in writing or whether the parties have agreed otherwise.
The customer must ensure that the actual delivery of the products ordered by him/here can take place on time.
Transport costs are for the account of the customer, unless parties have agreed otherwise.
Packaging and shipping
- If the packaging of a delivered product is opened or damaged, the customer must, before receiving the product, have a note made by the forwarder or delivery person, failing which @Bird-Covers BV cannot be held liable for any damage.
- If the customer takes care of the transport of a product him/herself, he/she must report any visible damage to products or packaging prior to transport to @Bird-Raincover BV, failing which @Bird-Covers BV cannot be held liable for any damage.
- If the customer orders ordered products only later than the agreed delivery date, the risk of any loss of quality is entirely for the customer.
- Any additional costs as a result of premature or late purchase of products are entirely for the account of the customer.
- The warranty with regard to products only applies to defects caused by faulty manufacture, construction or material.
- The warranty does not apply in case of normal wear and tear and damage caused by accidents, changes to the product, negligence or improper use by the customer, as well as when the cause of the defect cannot be clearly determined.
- The risk of loss, damage or theft of the products that are the subject of an agreement between the parties, passes to the customer at the moment when they are legally and / or actually delivered, or at least come under the control of the customer or from a third party who receives the product on behalf of the customer.
- Exchange is only possible if the following conditions are met:
- exchanges take place within 14 days of purchase on presentation of the original invoice
- the product is returned in the original packaging and with the original (price) tags still attached
- the product has not been used
- Discounted items, non-durable items such as food, custom items or items specially adapted for the customer and @Bird-Covers Design Your Own and / or White Label cannot be exchanged.
The customer indemnifies @Bird-Covers BV against all claims from third parties related to the claims of @Bird-Covers BV delivered products and / or services.
- The customer must submit an invoice by @Bird-Covers BV examine the product or service provided as soon as possible for any shortcomings.
- If a delivered product or service does not correspond to what the customer could reasonably expect from the agreement, the customer must @Bird-Covers BV to inform them as soon as possible, but in any case within 1 month after the shortcomings have been discovered.
- Consumers must @Bird-Covers BV to notify this within 2 months of the discovery of the shortcomings.
- The customer gives as detailed a description of the shortcoming as possible, so that @Bird-Covers BV is able to respond adequately.
- The customer must demonstrate that the complaint relates to an agreement between the parties.
- If a complaint concerns ongoing work, this can in any case not lead to @Bird-Covers BV can be held to perform other activities than agreed.
Notice of default
- The customer must notify defaults in writing to @Bird-Covers BV.
- It is the responsibility of the customer that a notice of default @Bird-Covers BV actually reached (on time).
Joint and several liability of the customer
If @Bird-Covers BV enters into an agreement with several customers, each of them is jointly and severally liable for the full amounts that they owe @Bird-Covers B.V. under that agreement.
Liability @Bird-Covers BV
- @Bird-Covers BV is only liable for any damage that the customer suffers if and insofar as that damage is caused by intent or deliberate recklessness.
- If @Bird-Covers BV is liable for any damage, it is only liable for direct damage resulting from or related to the performance of an agreement.
- @Bird-Covers BV is never liable for indirect damage, such as consequential damage, loss of profit, missed savings or damage to third parties.
- If @Bird-Covers BV is liable, this liability is limited to the amount paid out by a closed (professional) liability insurance and in the absence of (full) payment by the insurance company of the damage amount, the liability is limited to the (part of the) invoice amount to which the liability relates.
- All images, photos, colors, drawings, descriptions on the website or in a catalog are only indicative and are only approximate and cannot give rise to compensation and / or (partial) termination of the agreement and / or suspension of any commitment.
Any right of the customer to compensation from @Bird-Covers BV in any case expires 12 months after the event from which liability arises directly or indirectly. This does not exclude the provisions of Article 6:89 of the Civil Code.
Right to dissolution
- The customer has the right to dissolve the agreement when @Bird-Covers BV culpably fails to fulfill its obligations, unless this failure, given its special nature or minor significance, does not justify termination.
- Is the fulfillment of the obligations by @Bird-Covers BV if it is not permanently or temporarily impossible, dissolution can only take place after @Bird-Covers BV is in default.
- @Bird-Covers BV 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 @Bird-Covers BV has taken note of circumstances that give him good grounds to fear that the customer will not be able to properly fulfill his obligations.
Force of the majority
- In addition to the provisions of Article 6:75 of the Dutch Civil Code, a shortcoming of @Bird-Covers BV in the fulfillment of any obligation towards the customer cannot be attributed to @Bird-Covers BV in one of the will independent situation of @Bird-Covers BV, as a result of which the fulfillment of its obligations towards the customer is wholly or partially prevented or as a result of which the fulfillment of its obligations cannot reasonably be expected from @Bird-Covers BV.
- The force majeure situation referred to in paragraph 1 also includes, but is not limited to: a state of emergency (such as civil war, uprising, riots, natural disasters, etc.); breaches and force majeure of suppliers, deliverers or other third parties; unexpected power, electricity, internet, computer and telecom failures; computer viruses, strikes, government measures, unforeseen transport problems, bad weather conditions and work stoppages.
- If a force majeure situation arises whereby @Bird-Covers BV cannot fulfill 1 or more obligations to the customer, those obligations will be suspended until @Bird-Covers BV can meet them again.
- From the moment that a force majeure situation has lasted at least 30 calendar days, both parties may dissolve the agreement in whole or in part in writing.
- @Bird-Covers BV no (damage) compensation is due in a force majeure situation, even if it enjoys any advantage as a result of the force majeure situation.
Modification of the agreement
If, after the conclusion of the agreement for the execution thereof, it proves necessary to change or supplement its content, the parties will adjust the agreement accordingly in a timely manner and by mutual agreement.
Change of general terms and conditions
- @Bird-Covers BV is entitled to amend or supplement these general terms and conditions.
- Changes of minor importance can be made at any time.
- Major substantive changes will @Bird-Covers BV discuss with the customer as much as possible in advance.
- Consumers are entitled to terminate the agreement in the event of a material change to the general terms and conditions.
Transfer of rights
- The customer’s rights under an agreement between the parties cannot be transferred to third parties without the prior written consent of @Bird-Covers BV.
- This provision applies as a clause with property law effect as referred to in Section 3:83 (2) of the Dutch Civil Code.
Consequences of nullity or voidability
- If one or more provisions of these general terms and conditions are found to be void or voidable, this will not affect the other provisions of these terms and conditions.
- In that case, a provision that is void or voidable is replaced by a provision that comes closest to what @Bird-Covers BV had in mind when drawing up the conditions on that point.
Applicable law and competent court
- Only Dutch law applies to every agreement between the parties.
- The Dutch judge in the district where @Bird-Covers BV is established / practices / office holds is exclusively authorized to take cognizance of any disputes between parties, unless the law prescribes otherwise.
Drawn up at January 20, 2020