GENERAL TERMS AND CONDITIONS OF DELIVERY of Mobile Waste Company B.V., a private limited liability under the laws of the Netherlands with its statutory seat in AMSTERDAM and with its registered office address in (1101 CJ) Amsterdam at the Karspeldreef 8, the Netherlands and registered in the trade register under number 65457862, and any of its affiliates hereinafter referred to as "FLEXTRASH.COM".
In these General Terms and Conditions the following expressions shall have the meaning as set out next to them:
Agreement means all acceptances, acknowledgements and confirmations by FLEXTRASH.COM of any orders by the Consumer and any agreement between FLEXTRASH.COM and the Consumer regarding the sale by FLEXTRASH.COM and purchase by the Consumer of Products, including the General Terms and Conditions and the schedules and/or annexes to any such agreement;
Confirmation Order means the confirmation order of FLEXTRASH.COM of an order by the Consumer including the Operating Manual;
Consumer means the buyer of the Product for personal use;
Defect: a material non-conformity of the Products and Defective means having a Defect;
General Terms and Conditions means these general terms and conditions of delivery of FLEXTRASH.COM;
Parties means FLEXTRASH.COM and the Consumer and Party means any of them;
Products means the products provided by FLEXTRASH.COM to the Consumer including any services provided by FLEXTRASH.COM to Consumer;
Operating Manual means the operating manual including user and safety procedures as attached to the Confirmation Order;
Website means the website:www.cartrash.com.
APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS
1. These General Terms and Conditions apply to and form an integral part of any Agreement (also for future business transactions), offers, all other (legal) actions by FLEXTRASH.COM and also to unlawful acts, unless and to the extent FLEXTRASH.COM explicitly agrees otherwise in writing.
2. Any general terms and conditions of the Consumer are not applicable and are not binding in any way on FLEXTRASH.COM and are hereby explicitly rejected by FLEXTRASH.COM.
OFFER, ORDERS AND AGREEMENTS
3. FLEXTRASH.COM offers Products via the Website. Any order submitted via the Website is subject to acceptance by FLEXTRASH.COM. An agreement is concluded upon written acceptance by FLEXTRASH.COM by way of a Confirmation Order.
4. FLEXTRASH.COM's offers made by other means than through the Website are open for acceptance within the period stated by FLEXTRASH.COM in the offer or, when no period is stated, within thirty (30) days from the date of the offer, provided that any offer may be withdrawn or revoked by FLEXTRASH.COM at any time prior to the receipt by FLEXTRASH.COM of the Consumer’s acceptance thereof. An order placed by the Consumer shall only be regarded as accepted following a written confirmation by FLEXTRASH.COM by means of a Confirmation Order.
5. FLEXTRASH.COM reserves the right to reject any orders in full or in part or to apply a maximum order amount. All orders for Products are subject to stock availability.
6. All documents belonging to FLEXTRASH.COM's offer, such as descriptions or specifications, are as accurate as possible, but not binding. FLEXTRASH.COM exclusively retains ownership to all property rights and copyrights to the offer and all documents.
7. Without prejudice to the provisions 24-27 of these General Terms and Conditions, the Confirmation Order may only be cancelled or modified by the Consumer with the written consent of FLEXTRASH.COM. If such consent is given and the order is cancelled or modified, the Consumer shall reimburse FLEXTRASH.COM for all expenses incurred by FLEXTRASH.COM and the Consumer shall accept the cancellation charges charged by FLEXTRASH.COM.
PRICING AND PRICE ADJUSTMENTS
8. Prices in any offer, Confirmation Order or Agreement are in Euros and are inclusive of VAT and standard shipping costs and handling charges (if any). Consumer is responsible for any local sales taxes, other taxes and government levies, if any, associated with the order.
9. Prices are subject to change at any time but will not affect orders for Products or Services made prior to the date of the change.
10. FLEXTRASH.COM shall have the right to increase its prices, even if it has been agreed that the price is fixed, without this leading to a termination right (including a right of dissolution) for the Consumer if (i) a price increase is a consequence of a statutory or other governmental measure or (ii) the cost factors of the Products applying at the time of the conclusion of the Agreement (such as exchange rates, manufacturer's prices, raw material prices, wage and transport costs, insurance premiums, taxes, import duties and other government levies) increase with more than 8% (eight percent).
11. All orders must be paid through the payment service as made available by FLEXTRASH.COM, unless otherwise agreed upon between the Parties and confirmed in the Confirmation Order. In order to submit orders and use the payment service, Consumer must supply details of the preferred payment method, billing and shipping address (if applicable) and/or any other details necessary to complete the order. If, for some reason, collection through the payment service should fail, FLEXTRASH.COM will invoice Consumer by mail for the amount payable, which must be paid by check, money order or credit card within fourteen (14) days from the date of invoice.
12. All invoices of FLEXTRASH.COM shall be payable by the Consumer within fourteen (14) days upon receipt of the invoice unless otherwise agreed upon between the Parties and confirmed in the Confirmation Order. In the event of failure to pay within this term, the Consumer shall be in default without any notice of default or reminder being required and shall be obliged to pay statutory trade interest ex article 6:119a Dutch Civil Code (wettelijke handelsrente) over the outstanding amount.
13. Payments by the Consumer shall be made in Euros unless another currency is agreed upon between the Parties and confirmed in the Confirmation Order. In the event that a currency other than the Euro shall be agreed upon, the applicable exchange rate will be fixed at the Confirmation Order date and firm for the duration of the applicable Agreement.
14. Payments made by the Consumer shall in each case be used for settlement in the first place of all interest and costs payable and in the second place of invoices due and payable that are the longest outstanding, even if the Consumer states that the payment relates to a later invoice.
15. In the event of any default by the Consumer in the payment of any amount due, or any other default by the Consumer, FLEXTRASH.COM shall have the right to refuse performance and/or delivery of any Products until payments are brought current and FLEXTRASH.COM may suspend, delay or cancel any credit, delivery or any other performance by FLEXTRASH.COM without any liability towards the Consumer. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
16. All expenses either in or out of court made by FLEXTRASH.COM for the collection of any amount due under the Agreement or any other agreement between the Parties shall be for account of the Consumer, including but not limited to the recovery of FLEXTRASH.COM’s reasonable attorney’s fees and expenses, the amount of which will be set at a minimum of 15% of the total amount due.
17. FLEXTRASH.COM will aim to deliver the Product within 30 days of order acceptance. If multiple Products are ordered, FLEXTRASH.COM reserves the right to deliver each Product separately.
18. Consumer will give FLEXTRASH.COM written notice of failure to deliver and thirty (30) days within which to cure. If FLEXTRASH.COM does not deliver within such thirty (30) day period, Consumer's sole and exclusive remedy is to cancel the affected and undelivered portions of the related Agreement.
19. The delivery dates shall be based on the expectation that all information and details to be provided by the Consumer required for the performance of the Agreement will be delivered promptly to FLEXTRASH.COM. Delivery dates communicated or acknowledged by FLEXTRASH.COM are approximate only, and FLEXTRASH.COM shall not be liable for, nor shall FLEXTRASH.COM be in breach of its obligations to the Consumer, for any delivery made within a reasonable time before or after the communicated delivery date.
20. The Product ordered by the Consumer will be delivered to the delivery address as provided by the Consumer.
21. The risk of loss or damage to the Product will pass to the Consumer at the moment the Product is delivered to the Consumer.
22. If the Consumer does not take delivery of the Product, FLEXTRASH.COM reserves the right to charge the Consumer for the reasonable cost of storing the Product until delivery can be made. If delivery to Consumer should fail for any reason outside of FLEXTRASH.COM 's control, FLEXTRASH.COM reserves the right to cancel the agreement and refund any monies paid.
RIGHT TO CANCELLATION
23. For Products purchased via the Website, the Consumer has a right to cancel the purchase agreement for any reason for a period of 14 days commencing on the date of delivery to the delivery address. FLEXTRASH.COM will refund the purchase price and original shipping costs actually paid (with the exception of the supplementary costs resulting from its choice of a type of delivery other than the least expensive type of standard delivery offered by FLEXTRASH.COM, or where multiple Products were ordered and not all Products purchased are returned). FLEXTRASH.COM will carry out such reimbursement using the same means of payment as the Consumer used for the initial transaction, unless the Consumer has expressly agreed otherwise.
24. To exercise the cancellation right the Consumer must inform FLEXTRASH.COM about the decision by contacting FLEXTRASH.COM during the 14 days following delivery by email via [email protected] to obtain an authorisation number for the return of the order. Consumer may use the Withdrawal Form available via www.flextrash.com/returns-and-exchanges. Subsequently, the Consumer should without any delay return the Product, free of all interests, liens, or claims otherwise, to the address mentioned on the postage label received with the authorisation number for the return of order.
25. If the Consumer decides to cancel the purchase agreement and return the Product to FLEXTRASH.COM, the Consumer will be liable for any diminished value of the Product resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the Product.
26. The Consumer accepts that FLEXTRASH.COM may charge the Consumer for any shipping or postage costs incurred directly associated with returning the Product.
27. FLEXTRASH.COM reserves the right to discontinue the manufacture of, or change or modify the design and/or construction of the Products sold pursuant to these General Terms and Conditions, without incurring any obligation to the Consumer.
28. FLEXTRASH.COM shall be entitled to use third party services for the execution of the Agreement. FLEXTRASH.COM is not liable for damages arising out of any acts or non-acts of such third persons.
29. FLEXTRASH.COM has the right to wholly or partially assign the rights and obligations under an Agreement to a third party. The approval of the Consumer of such assignment is already granted by the Consumer. The Consumer shall not assign any rights or obligations under the Agreement without the prior written consent of FLEXTRASH.COM.
FLEXTRASH.COM shall not be liable for any failure or delay in performance if such failure or delay is caused by Force Majeure as defined below. "Force Majeure" is in these General Terms and Conditions in addition to its effect in the law and jurisprudence, all external causes, foreseen or unforeseen, that FLEXTRASH.COM cannot influence, but which prevent FLEXTRASH.COM to fulfil its obligations, including but not limited to regulations by any government authority, fire, flood, power outage, interruption, failure or defects in internet, telephone or other interconnection service or in electronic or mechanical equipment, staff illness of FLEXTRASH.COM exceeding ten (10) working days, strikes, late delivery or unsuitability of materials, the failure by third parties engaged by FLEXTRASH.COM to fulfil their obligations and/or default by one of the suppliers of FLEXTRASH.COM.
30. If FLEXTRASH.COM is unable to meet its obligations due to Force Majeure, it will not be liable. Insofar as compliance is not permanently unfeasible, its obligations will be suspended for the period such failure continues, without FLEXTRASH.COM being responsible or liable to the Consumer for any damage resulting there from. If the period during which compliance is not feasible due to Force Majeure lasts or looks set to last longer than three (3) months, either Party will be entitled to terminate the Agreement, without any liability to pay damages.
31. If at the time Force Majeure takes effect, FLEXTRASH.COM has already partly met its obligations or can only partly meet its obligations, it will be entitled to invoice separately the Products that have already been delivered or can be delivered, and the Consumer will be obliged to settle this invoice.
INTELLECTUAL PROPERTY RIGHTS
32. All rights of intellectual and industrial property, including, but not limited to, patent rights, copyright, trademark rights, design rights, trade name rights and the rights to knowhow, arising out of or in connection with the Products shall be the exclusive property of FLEXTRASH.COM. In the event that the Consumer designs, develops or in any other way manufactures intellectual property rights related to the Products or otherwise ensuing from the activities carried out by it under an Agreement, the Consumer shall transfer all such rights to FLEXTRASH.COM for no consideration. Insofar necessary, the Consumer undertakes to give all further cooperation necessary for the effectuation of the transfer of such intellectual property rights to FLEXTRASH.COM. The Consumer hereby grants to FLEXTRASH.COM an irrevocable power of attorney to perform in the name of the Consumer all acts necessary to conclude the transfer of the aforementioned rights of intellectual property.
33. The Consumer acknowledges that that no right or license is conveyed by FLEXTRASH.COM to the Consumer to manufacture, have manufactured, modify, import or copy the Products.
34. FLEXTRASH.COM is entitled to defend any legal proceeding brought by a third party against the Consumer to the extent that the proceeding includes a claim or alleged claim that any Product as furnished by FLEXTRASH.COM under an Agreement directly infringes the claimant’s rights of intellectual property.
NON-CONFORMITY & WARRANTY
35. Products are warranted to the Consumer for defects in material and workmanship for a specific period of time in accordance with FLEXTRASH.COM’s standard warranty, the most current version can be found at the Website.
36. No warranty is given for Defects that are a result of (i) normal wear and tear and/or (ii) injudicious use and use not in accordance with the Operating Manual.
37. Even if the Consumer complains in good time, its obligation to pay and take delivery of ordered Products shall continue to exist.
LIMITATION OF LIABILITY
38. The provisions 39 up to and including 45 of these General Terms and Conditions set out the entire liability of FLEXTRASH.COM vis-à-vis the Consumer.
39. Consumer understands and agrees that the only warranties FLEXTRASH.COM extends for the Products are mentioned in the provisions 36.
40. FLEXTRASH.COM can only be held liable by the Consumer for an attributable failure to fulfil any obligations under an Agreement and/or (a) wrongful act(s) or any other legal ground(s) if the Products were utilized under normal use in accordance with the Operating Manual.
41. In no event will FLEXTRASH.COM be liable for damages that are covered by indemnity insurance policy(ies) entered into by the Consumer.
42. FLEXTRASH.COM's total aggregate liability in respect of (an) attributable failure(s) to perform any obligations under an Agreement and/or (a) wrongful act(s) or any other legal ground(s) shall cumulatively be limited to the amount that is paid out in the particular case under the (liability) insurance policy(ies) FLEXTRASH.COM has entered into.
43. If no payment is made under the said insurance policy for whatever reason, FLEXTRASH.COM’s total aggregate liability in respect of (an) attributable failure(s) to fulfil any obligations under an Agreement and/or wrongful act(s) or any other legal ground(s) shall in no event cumulatively exceed the lower of either (i) the amount paid for the Products by the Consumer under the said Agreement (excluding VAT) or (ii) € [10,000,-] ([ten thousand] Euros).
44. In no event will FLEXTRASH.COM be liable for any consequential, indirect, immaterial and punitive damage, loss of business profits or damage relating to business interruption.
45. Without prejudice to any rights or remedies FLEXTRASH.COM may have under the Agreement or at law, FLEXTRASH.COM may, by written notice to the Consumer, cancel or terminate with immediate effect the Agreement or any part thereof without any liability whatsoever, if:
(a) the Consumer violates or breaches any of the provisions of the Agreement and has not cured such breach within fourteen (14) days following receipt of a written notice of the breach;
(b) any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against the Consumer, whether filed or instituted by the Consumer, voluntary or involuntary, a trustee or receiver is appointed over the Consumer, or any assignment is made for the benefit of creditors of the Consumer.
46. Upon occurrence of any of the events referred to above in provision 46, all payments to be made by the Consumer under the Agreement shall become immediately due and payable.
47. Termination of the Agreement does not release the Parties from their obligations under the following provisions of these General Terms and Conditions: 33-35 (Intellectual Property), 39-45 (Limitation of Liability), 46-48 (Termination), 49-50 (Confidentiality), 51-53 (Applicable law and jurisdiction), 54-56 (Miscellaneous) or any other provision of the General Terms and Conditions and the Agreement which, by their nature, are intended to survive the termination of the Agreement.
48. Each Party shall maintain as confidential any information furnished or disclosed to one Party by the other Party, whether disclosed in writing or disclosed orally, relating to the business of the disclosing Party, its customers, and the quotation and its terms, including the pricing terms under which the Consumer has agreed to purchase the Products.
49. Each Party shall disclose such confidential information only to its employees having a need to know such information to perform the transactions contemplated by the quotation. The obligation to maintain the confidentiality of such information shall not extend to information in the public domain at the time of disclosure, and/or information that is required to be disclosed by law or by court order.
APPLICABLE LAW AND JURISDICTION
50. These General Terms and Conditions and the Agreement and all agreements relating thereto or resulting there from shall be governed by and construed in accordance with the laws of the Netherlands.
51. The United Nations Convention on Contracts for the International Sale of Products shall not apply to any offer, confirmation or Agreement.
52. All disputes, controversies or claims arising out of or in connection with these General Terms and Conditions or the Agreement or any further agreements relating thereto or resulting there from shall exclusively be submitted in the first instance to the Court of Amsterdam, Netherlands.
53. In the event that any provision(s) of these General Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.
54. In the event that any provision of these General Terms and Conditions shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from these General Terms and Conditions, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the provision to the extent permissible under applicable law.
55. The failure on the part of either Party to exercise, or any delay in exercising, any right or remedy arising from the Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the Agreement or from any related document or by law.
CHANGE OF GENERAL TERMS AND CONDITIONS
56. FLEXTRASH.COM reserves the right to change these General Terms and Conditions.
57. These General Terms and Conditions are drawn up in the English language on the express condition that all words, terms and expressions used herein shall be construed and interpreted in accordance with Dutch law.