General Sales and Delivery Terms and Conditions of the private company with limited liability Kama Sutra Europe BV, hereinafter referred to as: “KSE”, having its registered office in (6604 LG) Wijchen at the Bijsterhuizen 2116.
These general terms and conditions were filed with the Chamber of Commerce for the Central Netherlands under number: 62737082.
- These General Sales and Delivery Terms and Conditions (hereinafter referred to as: the “Terms and Conditions”) are, with the exclusion of possible other general terms and conditions, applicable to all orders with and all offers and agreements of KSE.
- The acceptance of an offer or the placing of an order implies that the Buyer accepts the applicability of these Terms and Conditions.
- Deviation from the provisions set forth in these Terms and Conditions is only possible in writing, in which instance the other provisions shall remain in full force and effect.
- All rights and claims, as stipulated for the benefit of KSE in these Terms and Conditions and in possible further agreements, are equally stipulated for the benefit of intermediaries and other third parties hired by KSE.
- An agreement is only concluded after acceptance of your order by KSE . KSE is authorised to refuse orders or to impose certain conditions on the delivery, unless expressly stipulated otherwise. If an order is not accepted then KSE shall communicate this within ten (10) working days after receipt of the order.
- Information, images, communications provided orally, by telephone or by email, and specifications et cetera with regard to all offers and the most important features of the products are represented or made as accurately as possible. KSE does, however, not guarantee that all offers and products are fully in accordance with the provided information. Differences can basically not give cause for compensation and/or dissolution.
3. Prices / Offers
- All offers of KSE are subject to contract and as long as the stock lasts. KSE expressly reserves the right to change the prices, in particular when this is required on the basis of (statutory) regulations.
- All prices are quoted in EUR excluding VAT, shipping costs and possible import duties, unless specified or stipulated otherwise in writing.
- The minimum order amount in EUR is € 100,- netto excluding VAT, shipping costs and possible import duties.
- KSE is entitled to invoice each partial delivery.
- Payments must be made by the Buyer in advance. If the, pro forma, invoice is not paid within 7 days after despatch thereof then the order is cancelled.
- Different payment terms are only applicable if confirmed by KSE in writing. The applicable payment term is always specified on the invoice. In case of an overstepping of the payment term the Buyer shall by operation of law and without any further notice of default by KSE being required be in default as from the day that payment should have taken place. As from this day the Buyer shall be liable to pay default interest of 1% per month over the outstanding amount. If payment takes place after a reminder by KSE then the Buyer shall be liable to pay an amount of EUR 20.00 (twenty Euros) on account of administration costs and if KSE outsources its claim for collection then the Buyer shall also be liable to pay the collection costs, which amount to at least fifteen (15) per cent of the outstanding amount, without prejudice to the authority of KSE to in lieu thereof claim the actually incurred extrajudicial collection costs.
- Each and every payment by the Buyer shall first be applied to the payable interest and then to settlement of the costs associated with the claim, barring the judicial costs. Only after payment of these amounts shall any payment by the Buyer be applied to the outstanding principal claims, where the oldest outstanding claim shall be written off first.
- The goods shall be delivered by KSE ex works or carriage paid, depending on the order value and the country of destination. The Buyer can find this information in the transport schedule of KSE . The Buyer can request the transport schedule from KSE . KSE shall at all times be entitled to change and/or revise this schedule.
- As from the moment of shipment the goods shall be at the risk of the Buyer. If carriage paid delivery has been stipulated the Buyer shall be liable for all damages (e.g. transport, fire, water damage and theft or embezzlement) incurred by the goods during the transport. We shall never be liable for an attributable shortcoming on the part of the carrier.
- Stipulated delivery times can, unless stipulated otherwise in writing, never be qualified as fatal deadlines. In case of late delivery we must therefore be given written notice of default.
- If the Buyer has outstanding amounts that are due and payable to KSE then KSE shall be entitled to suspend the delivery until the due and payable outstanding amounts have been paid.
6. Complaints / Exonerations
- Upon delivery and receipt of the products delivered by KSE the Buyer must check as to whether the delivery corresponds with the order and/or the contract.
- Complaints with regard to visible defects and/or deficit or surplus notifications of the delivery must forthwith, however at the latest within 5 working days after the date of delivery, be reported to KSE . The complaint must be described clearly by the Buyer.
- However, if the complaint is related to invisible defects that can exclusively be detected when used by the consumer then the complaint can exclusively be accepted if it is communicated to KSE in writing within 5 working days after the day that it was reported to the Buyer or that the Buyer could within reason have been familiar with it.
- Return shipment of delivered goods can only take place by the Buyer after prior approval and express consent of KSE accompanied by a return form completed in full, which the Buyer can obtain from Customer Service. The products can only be taken back if they are returned in sealed, original factory packaging without stickers, holes or other changes.
- The Buyer is not entitled to suspend payment of the delivered goods on the basis of apparent defects; if the complaint appears to be justified then repayment can take place.
- Without prejudice to the aforementioned possibility of lodging a complaint we shall never be liable for any further, direct or indirect, damages to people, goods or the company of the Buyer and/or third parties.
- We shall never be liable for the consequences of incorrect and/or injudicious use of the goods delivered by us or for the consequences of use other than and/or in breach of the relevant advice / instructions given by us. The advice / instructions given by us shall never release the Buyer from the obligation to also personally inspect our products in terms of their suitableness for the proposed use. The onus of proof that the goods delivered by us were indeed used correctly and/or judiciously respectively in accordance with the relevant instructions given by us and after a proper personal inspection by the Buyer is in all instances vested in the Buyer.
- KSE does not accept return shipments that are not the result of a demonstrable and attributable erroneous act on the part of KSE .
7. Force majeure
- KSE is not held to comply with any obligation if it is prevented from doing so as a result of a circumstance that cannot be blamed on the same and must neither be at the expense of the same pursuant to the law, a legal act or generally accepted practice.
- If KSE is not able to comply with its obligations on account of the agreement or late due to force majeure or other exceptional circumstances, including but not limited to industrial action, stagnation in the supply of products, industrial port action and fire, at KSE or at its suppliers, then KSE shall be entitled to implement the agreement within a reasonable period of time or – if compliance is not possible within a reasonable period of time – to declare the agreement dissolved, either in full or in part.
- In the aforementioned instance the Buyer shall not be entitled to dissolve the agreement.
8. Reservation of title
- All goods delivered by KSE within the framework of the agreement shall remain the property of KSE until all obligations by virtue of the agreement(-s) concluded with KSE have properly been complied with.
- The Buyer is not authorised to pledge or to otherwise encumber the goods delivered under the reservation of title.
- The Buyer must always do all that can within reason be expected of the same in order to secure the ownership rights of KSE .
- If third parties impose an attachment on goods delivered under the reservation of title or intend to establish or exercise rights in respect of the same then the Buyer is held to forthwith inform KSE accordingly.
- The Buyer commits to insure and keep insured the goods that are delivered under the reservation of title against fire, explosion and water damage as also against theft and to on demand present the policy of this insurance to KSE for inspection. In case of a possible benefit paid pursuant to the insurance KSE shall be entitled to this benefit. Where necessary the Buyer hereby already commits in advance to lend full cooperation to all that which can be or appears to be required or useful in this respect.
- If KSE intends to exercise its ownership rights specified in this article then the Buyer hereby already grants KSE and third parties to be appointed by KSE unconditional and irrevocable permission in advance to enter all the locations where the property of KSE is located and to take back these goods.
- KSE grants its customers a limited license to use KSE’s photographs and other promotional materials (hereinafter “Materials”), subject to this release. The Materials may not be used for any purpose unless such use complies with paragraph 2.
- The Materials may only be used in connection with the advertisement or sale of authentic Kama Sutra products.
- The Materials may not, under the following circumstances:
- in any online auctions;
- in any unlawful manner, including use which defames another person or is obscene, or in any way that denigrates or tarnishes KSE, its trademarks, or its products;
- in any way that suggests an association between KSE and any other company; or
- in consumer magazines, outdoor advertising, or television commercials without prior approval of KSE’s Marketing Department
- KSE accepts statutory obligations concerning compensation to the extent that the Buyer demonstrates and evidences through legally available means that the damages are the result of gross negligence or carelessness on the part of KSE .
- The liability for damages deriving from article 9 paragraph a is expressly limited to an amount equal to the invoiced amount in the principal sum, related to the delivered products and/or the supplied services.
- Any further liability of KSE for damages, including but not limited to liability for employees and auxiliary persons, on account of any reason whatsoever, is excluded, including all direct and indirect damages like consequential damages or trading losses. Moreover the Buyer indemnifies KSE against any and all claims of third parties in connection with incurred or yet to be incurred damages, such in consideration of the provisions set forth in this article.
- The Buyer is held to immediately inform KSE in writing if a winding-up petition or an application for suspension of payment is filed in respect of the same or if the Buyer loses or is about to lose, for any reason whatsoever, the right to freely dispose of its assets or a part thereof.
- These Terms and Conditions can be changed by KSE , however these changes do not take effect vis-à-vis the Buyer other than after the Buyer has been informed of these changes.
- These Terms and Conditions are divisible. Should a part of these Terms and Conditions appear to be invalid or unenforceable pursuant to Dutch law then only the relevant article (or part thereof) expires without affecting the other articles laid down in the Terms and Conditions.
12. Applicable law and disputes
Dutch law is exclusively applicable to the agreements between KSE and the Buyer.
All disputes between KSE and its Buyers are brought to the cognisance of the competent court in the district where KSE holds its place of business.
Wijchen, 1 May 2015