Terms & Conditions
1 Definitions in these general terms and conditions of delivery shall have the following meanings:
1.1 General Terms and Conditions: these provisions.
1.2 RADICAL FASH: the sole proprietorship with limited liability RADICAL. with its registered office in Amsterdam, registered with the Amsterdam Chamber of Commerce under number 61760757, with its registered office at Hoogoorddreef 105, 1101BB in Amsterdam.
1.3 Purchaser: the party who contracts or intends to contract with RADICAL FASH.
1.4 Quotation: any verbal or written offer from RADICAL FASH.
1.5 Agreement: any Agreement concluded between RADICAL FASH and the Purchaser, any amendment or addition thereto, as well as all (legal) acts in preparation for and in execution of that Agreement;
1.6 Parties: reference to RADICAL FASH and Purchaser together.
1.7 Products: all products to be supplied by RADICAL FASH or third parties engaged by RADICAL FASH.
2 Applicability
2.1 These General Terms and Conditions apply to all offers, work, deliveries of Products, Quotations from and Agreements with RADICAL FASH. These General Terms and Conditions also apply to deliveries of Products that RADICAL FASH has delivered by a third party. These conditions also apply to any additional or follow-up agreements between RADICAL FASH and the Purchaser. The Purchaser is deemed to have agreed to these.
2.2 Deviations from these General Terms and Conditions are only valid if they have been expressly agreed in writing by the Parties. In that case, the expressly agreed deviating provisions shall prevail. The applicability of the Purchaser's conditions is expressly rejected.
2.3 If RADICAL FASH deviates from these General Terms and Conditions in one or more Agreements with the Purchaser, this does not mean that this deviation also applies to previous or subsequent Agreements between RADICAL FASH and the Purchaser.
2.4 If one or more of the provisions of these General Terms and Conditions are or become null and void, in whole or in part, the other provisions of these General Terms and Conditions will remain in force and the Parties will enter into consultations to agree on a replacement provision that is in line with the intention that the Parties had when drafting the null and void or nullified provision.
3 Quotations and conclusion of Agreement
3.1 All Quotations from RADICAL FASH are without obligation and are valid for a period specified by RADICAL FASH. If RADICAL FASH has not specified a period in its Quotation, the Quotation will in any case automatically expire after 30 days. All Quotations can be revoked by RADICAL FASH at any time, even if the Quotation contains a period for acceptance.
3.2 The documents that form part of the Offer, such as price lists, brochures, catalogues, folders and the like, are as accurate as possible but without obligation. These are provided to the Purchaser only by way of indication and can in no way be binding for RADICAL FASH. The documents in question are and remain the (intellectual) property of RADICAL FASH.
3.3 RADICAL FASH cannot be held to its Quotation if the Purchaser could reasonably understand that the Quotation, or a part thereof, contains an obvious error or mistake.
3.4 An Agreement will only be concluded when the Purchaser and RADICAL FASH have both signed the RADICAL FASH Quotation. If the Quotation has been provided verbally, or if the Quotation has not (yet) been confirmed in writing and has not been signed by both parties, the Agreement will be deemed to have been concluded when RADICAL FASH has started executing the Agreement at the request of the Purchaser.
3.5 If the Purchaser accepts a Quotation, RADICAL FASH shall nevertheless have the right to revoke its Quotation orally or in writing within 14 days of receipt of acceptance, in which case no Agreement shall have been concluded between the Parties.
3.6 If the acceptance of the Quotation contains reservations and/or changes by the Purchaser with respect to the Quotation made by RADICAL FASH to the Purchaser, the Agreement will not, in deviation from the aforementioned, be concluded until (an authorized representative of) RADICAL FASH agrees in writing to these reservations and/or changes.
3.7 If the Customer places an order with RADICAL FASH either verbally or in writing that is not preceded by a Quotation from RADICAL FASH, an Agreement will only be concluded when the order is confirmed in writing or electronically by an authorized representative within RADICAL FASH within 14 days of receipt of the order, or when RADICAL FASH has commenced the execution of the order within 14 days of receipt of the order.
4 Prices
4.1 Unless otherwise stated, the prices stated in a Quotation are exclusive of VAT and other government levies, and exclusive of any costs and expenses to be incurred in connection with the Agreement, such as shipping and administration costs. These levies and costs and expenses will be charged separately by the Contractor, unless the Parties agree otherwise in writing.
4.2 The prices stated in a Quotation or Agreement for the Products to be delivered by RADICAL FASH are based on delivery ex warehouse. This in fact means: excluding costs related to any transport from the RADICAL FASH warehouse to the Purchaser's address.
4.3 RADICAL FASH calculates its prices of the Products to be delivered on cost price factors, such as the purchase price of the materials to be used and labour costs. RADICAL FASH is entitled to change the prices or parts thereof of Products not yet delivered and/or not yet paid for if one or more cost price factors undergo a change after the conclusion of the Agreement that directly affects the price of the Products to be delivered. RADICAL FASH is also entitled to adjust prices without delay if a statutory price-determining factor gives reason to do so. If the Purchaser has a periodic payment obligation, RADICAL FASH is entitled to adjust the applicable prices and rates in writing within a period of at least three months. If the changed prices deviate by more than 15% from the originally agreed prices, the Purchaser has the right to terminate the Agreement.
4.4 When making Quotations, RADICAL FASH assumes that it will be able to deliver the Products under normal and customary circumstances. In the event of special circumstances that require RADICAL FASH to incur additional costs, RADICAL FASH will notify the Purchaser thereof and RADICAL FASH will have the right to charge the Purchaser for the additional costs.
4.5 With regard to the services provided by RADICAL FASH and the amounts owed by the Purchaser for these services, the relevant documents and data from the administration or systems of RADICAL FASH shall constitute full evidence, without prejudice to the Purchaser's right to provide evidence to the contrary.
5 Execution of Agreement and delivery
5.1 After the Agreement has been concluded, RADICAL FASH will proceed to deliver the Products as stated in the Agreement.
5.2 All stated and/or agreed delivery times are based on data and circumstances that were known to RADICAL FASH when entering into the Agreement. These delivery times always apply as target dates, these delivery times do not bind RADICAL FASH and are only indicative and are never to be regarded as fatal terms, unless expressly agreed otherwise in writing between the Parties. RADICAL FASH makes every effort to observe the relevant delivery times as much as possible, but a single exceeding of a delivery time does not constitute a shortcoming. Delay in delivery will never give the Purchaser the right to terminate the Agreement or to any form of compensation.
5.3 RADICAL FASH shall deliver the Products in all cases at the time they are ready at the address of its warehouse. All risks relating to Products to be delivered by RADICAL FASH shall pass to the Purchaser at the time the Products are delivered by RADICAL FASH there.
5.4 In the event that the Purchaser wishes RADICAL FASH to arrange for the transport of the Products from its warehouse to an address specified by the Purchaser and RADICAL FASH agrees to this, this does not mean that delivery will take place later or at a different location than stated in article 5.3. This Agreement regarding this transport concerns an additional agreement, whereby the costs of transport and the risks of transport are fully borne by the Purchaser.
5.5 The Purchaser must accept the Products at the time of delivery.
5.6 RADICAL FASH is entitled to deliver in parts (partial deliveries), which partial deliveries it can invoice separately (partial invoices). The Purchaser is obliged to pay these partial invoices in accordance with article 11 of the General Terms and Conditions.
5.7 If the Customer refuses to accept the ordered Products, RADICAL FASH is permitted:
aa To deliver the Products by means of a written notice, in which case RADICAL FASH will store the Products with it or a third party from the moment of written notice, at the expense and risk, including the risk of deterioration in quality, of the Purchaser; or
bb To proceed to full or partial termination of the Agreement and to sell and deliver the Products to (a) third party(ies).
5.8 If RADICAL FASH, in whatever form, suffers damage as a result of the fact that the Purchaser refuses to accept the ordered Products, the Purchaser is liable for this damage.
5.9 The Purchaser is obliged to do everything that can reasonably be expected of the Purchaser to enable timely delivery by RADICAL FASH, failing which RADICAL FASH is entitled to suspend its delivery obligation.
6. Amendment of Agreement and additional work
6.1 If during the performance of the Agreement it appears that it is necessary to amend or supplement it for its proper performance, the Parties will amend the Agreement in a timely manner and in mutual consultation.
6.2 If the nature, scope or content of the Agreement is changed, this may have consequences for the originally agreed price and the originally stated term of execution. RADICAL FASH will, if this is the case, inform the Purchaser in advance as much as possible about the new price and term of execution. The Purchaser accepts the possibility of changing the Agreement, including the change in price and term of execution.
6.3 If the Agreement is amended, including a supplement, RADICAL FASH
entitled to suspend the performance of the original Agreement until the Purchaser has given written approval for the performance of the amended
Agreement specified price, execution period and other conditions.
6.4 If it is necessary for the proper execution of the Agreement to amend the Agreement, the Purchaser is obliged to cooperate within reasonable limits. If the Purchaser refuses to give written approval within a reasonable period of time regarding the amendments to be implemented, RADICAL FASH has the right to terminate the Agreement in whole or in part, without being obliged to pay any compensation to the Purchaser. In the event that the Purchaser withholds approval on unreasonable grounds, the Purchaser – regardless of whether RADICAL FASH has terminated the Agreement – is obliged to pay the originally agreed price to RADICAL FASH.
6.5 Without thereby being in default of the performance of the Agreement, RADICAL FASH may refuse a request to amend the Agreement if this could have consequences in terms of quality and/or quantity, for example for the Products to be delivered in that context.
6.6 If RADICAL FASH is required to perform work for the Purchaser, for whatever reason, that is not recorded in writing in an Agreement between both Parties, or if costs arise due to the Purchaser, then this work/costs will be considered additional work and charged as such. The Purchaser is obliged to ensure payment thereof.
6.7 The fact that additional work occurs during the performance of the Agreement shall never be grounds for the Purchaser to terminate or dissolve the Agreement.
7 Retention of title
7.1 Ownership of the Products delivered by RADICAL FASH to the Purchaser will only be transferred to the Purchaser once the Purchaser has paid everything that RADICAL FASH may have or may acquire under all Agreements with the Purchaser and Products delivered in that context, within the limits of Article 3:92 of the Dutch Civil Code.
7.2 RADICAL FASH shall not lose its (reserved) ownership if and/or because the Purchaser processes or edits the Products received from RADICAL FASH. In that case, the Purchaser shall automatically hold the Products in question for RADICAL FASH.
7.3 The Purchaser is obliged (1) to insure the Products delivered but not (yet) (fully) paid for, (2) to immediately transfer to RADICAL FASH by means of assignment all rights of claim that the Purchaser may have with regard to the Products delivered by NOAH vis-à-vis third parties at the request of RADICAL FASH, (3) to inform third parties that the Products delivered by RADICAL FASH to the Purchaser have been delivered by RADICAL FASH under retention of title if the Purchaser has not (yet) (fully) paid for the Products.
7.4 If the Purchaser fails to fulfil its obligations or if there is a well-founded fear that it will fail to fulfil its obligations, RADICAL FASH is entitled to remove the delivered Products to which the retention of title referred to in paragraph 1 applies from the Purchaser or from third parties who hold these Products for the Purchaser. The Purchaser is obliged to provide all cooperation to this end, under penalty of an immediately due fine of 10% per day or part day that the Purchaser fails to fulfil this obligation of everything that the Purchaser owes to RADICAL FASH, without prejudice to the right to demand fulfilment of the obligations referred to in the previous sentence and/or compensation.
7.5 For Products returned under this article, the Purchaser will be credited for the market value of the returned Products on the day of return.
7.6 Furthermore, RADICAL FASH delivers all Products subject to a silent pledge on the Products in favor of RADICAL FASH. After the retention of title has expired, the Purchaser will therefore receive ownership of the Products encumbered with a silent pledge in favor of RADICAL FASH. These pledges serve as additional security for the payment of all that RADICAL FASH has or will have to claim from the Purchaser on any grounds whatsoever. At the first request of RADICAL FASH, the Purchaser will sign a deed establishing a pledge and register this with the tax authorities.
8 Right of retention
8.1 RADICAL FASH has a right of retention on all Products that are in the possession of RADICAL FASH from or on behalf of the Purchaser, regardless of the reason or cause thereof, as long as the Purchaser has not fulfilled all its obligations, for whatever reason, towards RADICALFASH.
8.2 In the event that the Products referred to in paragraph 1 of this article are wholly or partially destroyed or otherwise damaged or diminish in value which is not due to intent or deliberate recklessness on the part of RADICAL FASH, the Purchaser cannot claim any form of compensation with respect to these Products.
9 Investigation obligation/complaints
9.1 The Purchaser is obliged to check within 8 days after delivery of the Products whether the quantity and quality thereof are sound and comply with the Agreement concluded between the Parties. 9.2 In the event that the Purchaser discovers a defect in the quantity and/or quality of the delivered Products, the Purchaser must notify RADICAL FASH of the defect in writing without delay after discovery and no later than 8 days after delivery of the Products. If the Purchaser demonstrates that he could not reasonably have discovered the defect within the aforementioned period (hidden defect), the Purchaser must still report the defect in writing to RADICAL FASH within 8 days after discovery thereof, or at least within 8 days after the defect could reasonably have been discovered.
9.3 The written notification referred to in Article 9.2 must contain a description of the defect that is as detailed as possible. In addition, the Purchaser must also state the invoice number and the packing slip pertaining to the delivery, so that RADICAL FASH can respond to the complaint as adequately as possible.
9.4 If a complaint is not reported within the period stated in Article 9.2 and/or does not meet the requirements stated in Article 9.3, all rights of the Purchaser with regard to the defect or shortcoming noted shall lapse by operation of law.
9.5 If a complaint is found to be justified, whether or not by RADICAL FASH, RADICAL FASH has the choice to either improve/repair the relevant part of the delivery or to redeliver it to the Purchaser or to send a credit note to the Purchaser for the relevant part of the delivery, which will then be considered cancelled. If a complaint is found to be justified, the Purchaser is not entitled to any other form of (damage) compensation than that stated in the aforementioned sentence, except in the event of a liability situation as referred to in Article 15 of these General Terms and Conditions, in which case that Article will determine the amount of compensation to be received by the Purchaser.
9.6 The Purchaser is only entitled to return Products to RADICAL FASH after prior written approval from RADICAL FASH. Returns that were not preceded by a complaint and the associated data regarding the complaint as well as by written permission from RADICAL FASH are not permitted. In the event that the Purchaser returns the Products despite these provisions or returns them without valid reason, RADICAL FASH will keep these Products available to the Purchaser, insofar as they are not refused by RADICAL FASH, which will be at the expense and risk of the Purchaser. RADICAL FASH keeps these Products without any acknowledgement of the correctness of a claim under a guarantee on the part of the Purchaser. The costs of return shipments are at the expense of the Purchaser.
9.7 Any complaints do not release the Purchaser from his payment obligations.
10 Compliance RADICAL FASH / guarantees / shortcomings
10.1 RADICAL FASH will do its utmost to deliver the ordered Products to the Buyer in the same quantity and quality as ordered by the Buyer.
10.2 Communications by or on behalf of RADICAL FASH regarding quality, composition, design, colour, size, finish, properties in the broadest sense etc. of the delivered Products are only considered as guarantees if they are expressly confirmed in writing in the form of a guarantee by RADICAL FASH. If a Purchaser orders and receives a Product based on a sample from RADICAL FASH and the delivered Product corresponds to the sample, there will never be a shortcoming on the part of RADICAL FASH.
10.3 If the Purchaser has put the Products supplied by RADICAL FASH into use, has processed or processed them in whole or in part or has supplied them to third parties, it is established that RADICAL FASH has properly fulfilled the Agreement.
10.4 Minor deviations with regard to quality, colour, size, weight, finish, etc., which are deemed to be permitted in the market or technically unavoidable, as well as normal wear and tear of the delivered Products, shall never constitute grounds for a shortcoming on the part of RADICAL FASH.
10.5 Even minor deviations in the quantity delivered – that is to say less than 5% of the quantity ordered – never constitute a shortcoming on the part of RADICAL FASH.
10.6 If the delivered Products comply with the Agreement, but prove to be unsuitable for the purpose for which the Purchaser wishes to use them, this shall be at the Purchaser's risk. This shall not constitute a shortcoming on the part of RADICAL FASH.
11 Product recall
11.1 In urgent cases, in which case RADICAL FASH will judge whether or not a case is urgent, the Purchaser is obliged upon first request to return the already delivered Products to RADICAL FASH and, in the event that the Products have already been delivered by the Purchaser to third parties, to retrieve them from the third parties in question. In the event that RADICAL FASH proceeds with a product recall as described above, the Purchaser is obliged to take all measures that RADICAL FASH deems necessary in that regard and, as a result, to comply with all instructions of RADICAL FASH relating to the product recall and, in turn, the Purchaser will take as many damage-limiting measures as possible in that regard and make every effort to do so. In the event that NOAH decides to proceed with a product recall, RADICAL FASH is only obliged to either replace the Products or to send a credit note to the Purchaser in respect of the retrieved Products. In the event of a product recall, RADICAL FASH cannot be held liable for the payment of any form of compensation to the Purchaser.
12 Force Majeure
12.1 Force majeure pursuant to article 6:75 of the Dutch Civil Code shall in these general terms and conditions be understood to mean, in addition to what is understood by it in law and case law, all external causes and the consequences thereof, foreseen or unforeseen, over which RADICAL FASH has no influence, but which prevent RADICAL FASH from fulfilling its obligations or which make it so impossible, difficult and/or disproportionately expensive for RADICAL FASH that fulfillment of the Agreement cannot reasonably be expected of RADICAL FASH. Strikes in the company of RADICAL FASH or third parties must in any case be included, as well as extreme weather conditions, machine breakdown, machine malfunction, disruptions in the supply of energy and the circumstance that RADICAL FASH does not receive, does not receive on time or does not receive properly a performance that is important in connection with the performance to be delivered by it itself. RADICAL FASH also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the Agreement occurs after RADICAL FASH should have fulfilled its obligation.
12.2 RADICAL FASH may suspend the obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than two months, both RADICAL FASH and the Purchaser are entitled to terminate the Agreement, without any obligation to pay any form of compensation to the other party.
12.3 RADICAL FASH is entitled to demand payment for all that has already been performed by or on behalf of RADICAL FASH under the Agreement with the Purchaser prior to the moment of force majeure.
13 Payment
13.1 RADICAL FASH determines the payment terms. RADICAL FASH is free to request a down payment before it commences the execution of the Agreement.
13.2 Unless otherwise agreed, a payment for all amounts owed by the Purchaser to RADICAL FASH must be made by the Purchaser within 30 days of the invoice date. The value date on the bank statement is decisive and is considered the payment date.
13.3 If the Purchaser has any objections to the invoice received, the Purchaser must notify RADICAL FASH of these objections in writing within 8 days of the invoice date, failing which the correctness of the invoice will be established.
13.4 The Purchaser is never entitled to suspend its obligations towards RADICAL FASH and/or to offset them against its own claim on RADICAL FASH.
13.5 If the Purchaser does not pay the invoice within the payment term, the Purchaser will automatically be in default without prior notice of default being required. The Purchaser will owe contractual interest of 1% per month or part of a month on the amount owed from the date of default, unless the statutory (commercial) interest is higher, in which case the statutory (commercial) interest will apply.
13.6 All costs, both judicial and extrajudicial, which RADICAL FASH must make to enforce its rights, shall be borne by the Purchaser. The extrajudicial costs, in deviation from the statutory regulations in this regard, shall be set at an amount of 15% of the amount involved with a minimum of 200 euros excluding VAT.
13.7 If RADICAL FASH suffers damage as a result of the Purchaser's refusal to pay, in whatever form, the Purchaser is liable for this damage.
13.8 Payments by the Purchaser shall first be applied to reduce the costs and interest due (in that order) and then to reduce the principal amounts, with older claims taking precedence over new ones.
13.9 If RADICAL FASH deems it desirable and in any case if the Purchaser is in default with any payment obligation for whatever reason, RADICAL FASH is entitled, after entering into an Agreement, to deviate from the agreed payment arrangement and to demand payment in advance or security for the payment obligations of the Purchaser. The Purchaser must comply with this at the first request of RADICAL FASH.
13.10 If the Agreement has been concluded with more than one Purchaser, all Purchasers shall be jointly and severally liable for compliance with the payment obligations under the Agreement.
13.11 RADICAL FASH is at all times entitled to request the Purchaser for an advance payment or to oblige the Purchaser, if RADICAL FASH wishes to cover the orders to be delivered by it with a credit insurer to be determined by it, to cooperate in a credit assessment. If the Purchaser does not comply with the request for advance payment of the entire price agreed between the Parties or refuses to cooperate in a credit assessment or if no positive credit assessment is given, RADICAL FASH may terminate the Agreement in whole or in part with immediate effect without any notice of default being required from RADICAL FASH to the Purchaser, in which case the Purchaser is obliged to compensate the costs incurred by RADICAL FASH up to that point as well as the damage suffered by RADICAL FASH as a result of the termination. RADICAL FASH also has the option, in the event of refusal of advance payment by the Purchaser or if the Purchaser refuses to cooperate in a credit assessment or if no positive credit assessment is given, to suspend its obligations towards the Purchaser under the Agreement in whole or in part as referred to in Article 14. RADICAL FASH shall never be obliged to pay any form of compensation to the Purchaser in the event of a dissolution, termination or suspension of the Agreement, unless the dissolution, suspension or termination is based on facts and circumstances that can be attributed to RADICAL FASH. In the event that RADICAL FASH chooses to suspend its obligations towards the Purchaser in whole or in part, the provisions of Article 14 shall apply to the Parties.
14 Fear of non-compliance
14.1 If, after the conclusion of the Agreement, RADICAL FASH becomes aware of circumstances that give good reason to fear that the Purchaser will not fulfil one of the obligations, will not fulfil them correctly and/or will not fulfil them on time, which may be the case, among other things, in the event of bankruptcy or suspension of payments or when an application for one of these measures is pending with regard to the Purchaser, or if a decision has been taken to dissolve or merge the Purchaser or if a conservatory or execution attachment has been or will be levied on any part of the Purchaser's assets, or if the Purchaser fails to fulfil any payment obligation towards RADICAL FASH, all payment obligations of the Purchaser towards RADICAL FASH on any grounds whatsoever shall become immediately and fully due and payable. RADICAL FASH is entitled to demand immediate payment of these due and payable claims or to demand security for these due and payable claims.
14.2 In that case, RADICAL FASH is authorized to suspend the fulfillment of its obligations towards the Purchaser until payment and/or security for all payment obligations has been provided. If RADICAL FASH proceeds to do so, it is in no way obliged to compensate for damage and costs that arise in any way whatsoever on the part of the Purchaser as a result.
14.3 The Purchaser is liable for all damage resulting from the circumstances mentioned in this article on the part of RADICAL FASH.
15 Liability
15.1 If it is established in law or otherwise that RADICAL FASH may be liable to the Purchaser for damage suffered in connection with the Agreement, or on the grounds of unlawful act, or on any other grounds, then this liability, including any payment obligation based on Article 6:230 BW and/or Article 6:271 BW, shall at all times be limited in its entirety to what is regulated in this provision:
a. RADICAL FASH shall never be liable for damage arising because RADICAL FASH has assumed incorrect data/files provided by or on behalf of the Purchaser;
b. RADICAL FASH shall never be liable for any loss of profit, lost income, lost turnover, lost savings, damage due to business and other stagnation suffered by the Purchaser;
c. The liability of RADICAL FASH, including any payment obligation based on article 6:230 BW and/or article 6:271 BW, towards the Purchaser is at all times limited to the amount paid out by RADICAL FASH's liability insurance in the event in question;
d. In the event that RADICAL's liability insurance does not pay out for whatever reason, RADICAL's liability, including any payment obligation based on Article 6:230 of the Dutch Civil Code and/or Article 6:271 of the Dutch Civil Code, is limited to:
– the net value of the invoice relating to the Products to which the damaging event relates or, if multiple invoices relate to the damaging event, the net value of the last of this series of invoices sent by RADICAL FASH to the Purchaser prior to the moment the damaging event occurred;
– or, if the event giving rise to the damage is not based on the delivery of Products, or if no invoice has been sent for them, the net value of the last invoice sent by RADICAL FASH to the Purchaser prior to the moment the event giving rise to the damage occurred;
e. In the event that RADICAL FASH's liability insurance does not pay out for whatever reason, the total liability of RADICAL FASH, including any payment obligation based on article 6:230 BW and/or article 6:271 BW, towards the Purchaser in respect of any failure to perform, failure to perform on time and/or improperly or for any other reason attributable to it - regardless of the number of damage-causing events - will in no event exceed the net value of the last invoice sent by RADICAL FASH to the Purchaser prior to the moment that the damage-causing event occurred, provided that the total liability of RADICAL FASH will amount to a maximum of and never exceed € 10,000.
15.2 These restrictions shall only not apply in the event of intent or deliberate recklessness on the part of RADICAL FASH and/or managers of RADICAL FASH.
15.3 All subordinates of RADICAL FASH may invoke the above provisions against the Purchaser and, if necessary, also against third parties on an equal footing with RADICAL FASH.
15.4 Damage for which RADICAL FASH can be held liable must be reported to RADICAL FASH in writing as soon as possible, but no later than 15 days after it has occurred, under penalty of forfeiture of the right to compensation for this damage. This term does not apply if the Purchaser can demonstrate that the damage could not have been reported earlier for a valid reason.
15.5 Any claim for liability against RADICAL FASH shall lapse within 12 months after the Purchaser became aware of the damaging event or could reasonably have been aware of it.
16 Indemnification
16.1 Purchaser shall be liable for all damages, losses, costs and expenses, including but expressly not limited to attorney's fees, suffered by RADICAL FASH or third parties as a result of or in connection with a failure in the performance of an Agreement by Purchaser, regardless of whether such damage is caused by Purchaser, its personnel or another (legal) person or entity for which RADICAL FASH is legally liable.
16.2 Purchaser shall fully indemnify RADICAL FASH against all claims by third parties relating to damage, losses, costs and expenses of third parties arising from or related to a shortcoming in the performance of an Agreement by Purchaser, including but expressly not limited to claims as referred to in Article 6:185 in conjunction with Article 6:186 of the Dutch Civil Code. 190 BW, as well as the franchise amount referred to in those articles, as well as claims for (i) infringement of any intellectual property right in connection with the delivered goods, (ii) product liability, product safety and relevant worldwide legislation in the field of product liability, bodily injury and/or death, (iii) loss of or damage to goods, and/or (iiii) alleged or actual breach by RADICAL FASH of any of the warranties, representations, duties, liabilities and/or obligations contained in this Agreement, arising out of or in connection with the Agreement and/or Products or the use and exploitation thereof or arising out of or in connection with the activities or shortcomings of RADICAL FASH under this Agreement.
16.3 If RADICAL FASH is approached by third parties on this basis, the Purchaser is obliged to assist RADICAL FASH both in and out of court and to immediately do everything that may be expected of it in that case.
16.4 The Purchaser shall ensure that adequate insurance is in place to cover the execution risk as referred to above. The Purchaser shall be required to demonstrate that it has fulfilled this obligation at the first request of RADICAL FASH. The deductible shall at all times be borne by the Purchaser. If the Purchaser can claim a payment under an insurance agreement in connection with its possible liability towards RADICAL FASH, the Purchaser shall ensure that these payments are made directly to RADICAL FASH. Any payment to RADICAL FASH under an insurance agreement concluded by the Purchaser shall not affect RADICAL FASH's claims for damages against the Purchaser, insofar as these exceed the payment.
16.5 The Purchaser is always obliged to make every effort to limit the damage.
16.6 Should the Purchaser fail to take adequate measures, RADICAL FASH shall be entitled, without notice of default, to take such measures itself. All costs and damages incurred by RADICAL FASH and third parties as a result thereof shall be entirely at the expense and risk of the Purchaser.
17 Intellectual and industrial property rights
17.1 Purchaser shall not, without the prior written consent of RADICAL FASH, use the name or trademarks of RADICAL FASH, nor any words, images or symbols which in Purchaser's opinion may imply RADICAL FASH's involvement in or endorsement of any written or oral advertisement or presentation, logbook, plan, advice, brochure, newsletter, book or other published material prepared by RADICAL FASH.
17.2 The Products delivered by RADICAL FASH to the Purchaser under an Agreement do not explicitly imply any transfer of any intellectual or industrial property rights. All works made available to the Purchaser by RADICAL FASH under the Agreement shall remain the property of RADICAL FASH. The Purchaser shall only use these works for the purpose of and within the framework of the performance of the Agreement, within the limits of the Agreement, and may not reproduce, publish or make available to third parties in whole or in part or use them in any other way without the prior express written consent of RADICAL FASH.
17.3 All intellectual and industrial property rights, including but not limited to trademark, copyright, model and database rights, trade name rights, patent rights, which have been used or created in the context of the performance of the Agreement and/or included in the Products or in advice, including but not limited to products, production processes, applications, concepts, designs, drawings, inventions, models, techniques, works, methods, outcomes, creations, presentations, computer programs, know-how, data collections and other knowledge, shall belong exclusively to RADICAL FASH, unless otherwise agreed.
17.4 The Purchaser is not permitted to remove or change any indication regarding copyrights, trademarks, trade names or other intellectual and industrial property rights from the Products supplied by RADICAL FASH or the associated materials.
17.5 The Purchaser shall at all times fully respect all intellectual and industrial property rights of RADICAL FASH.
18 Transfer of rights and obligations
18.1 The Purchaser is not entitled to sell and/or transfer the rights and/or obligations under the Agreement to a third party.
18.2 RADICAL FASH is entitled to transfer its claims for payment of fees to a third party.
19 Applicable law and disputes
19.1 All legal relationships in which RADICAL FASH is a party are exclusively governed by Dutch law, even if an obligation is performed in whole or in part abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention 1980 (CISG) is expressly excluded.
19.2 The judge of the court of Noord-Holland, sitting in Haarlem, the Netherlands, has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, RADICAL FASH has the right to submit the dispute to the competent judge according to the law.
1.1 General Terms and Conditions: these provisions.
1.2 RADICAL FASH: the sole proprietorship with limited liability RADICAL. with its registered office in Amsterdam, registered with the Amsterdam Chamber of Commerce under number 61760757, with its registered office at Hoogoorddreef 105, 1101BB in Amsterdam.
1.3 Purchaser: the party who contracts or intends to contract with RADICAL FASH.
1.4 Quotation: any verbal or written offer from RADICAL FASH.
1.5 Agreement: any Agreement concluded between RADICAL FASH and the Purchaser, any amendment or addition thereto, as well as all (legal) acts in preparation for and in execution of that Agreement;
1.6 Parties: reference to RADICAL FASH and Purchaser together.
1.7 Products: all products to be supplied by RADICAL FASH or third parties engaged by RADICAL FASH.
2 Applicability
2.1 These General Terms and Conditions apply to all offers, work, deliveries of Products, Quotations from and Agreements with RADICAL FASH. These General Terms and Conditions also apply to deliveries of Products that RADICAL FASH has delivered by a third party. These conditions also apply to any additional or follow-up agreements between RADICAL FASH and the Purchaser. The Purchaser is deemed to have agreed to these.
2.2 Deviations from these General Terms and Conditions are only valid if they have been expressly agreed in writing by the Parties. In that case, the expressly agreed deviating provisions shall prevail. The applicability of the Purchaser's conditions is expressly rejected.
2.3 If RADICAL FASH deviates from these General Terms and Conditions in one or more Agreements with the Purchaser, this does not mean that this deviation also applies to previous or subsequent Agreements between RADICAL FASH and the Purchaser.
2.4 If one or more of the provisions of these General Terms and Conditions are or become null and void, in whole or in part, the other provisions of these General Terms and Conditions will remain in force and the Parties will enter into consultations to agree on a replacement provision that is in line with the intention that the Parties had when drafting the null and void or nullified provision.
3 Quotations and conclusion of Agreement
3.1 All Quotations from RADICAL FASH are without obligation and are valid for a period specified by RADICAL FASH. If RADICAL FASH has not specified a period in its Quotation, the Quotation will in any case automatically expire after 30 days. All Quotations can be revoked by RADICAL FASH at any time, even if the Quotation contains a period for acceptance.
3.2 The documents that form part of the Offer, such as price lists, brochures, catalogues, folders and the like, are as accurate as possible but without obligation. These are provided to the Purchaser only by way of indication and can in no way be binding for RADICAL FASH. The documents in question are and remain the (intellectual) property of RADICAL FASH.
3.3 RADICAL FASH cannot be held to its Quotation if the Purchaser could reasonably understand that the Quotation, or a part thereof, contains an obvious error or mistake.
3.4 An Agreement will only be concluded when the Purchaser and RADICAL FASH have both signed the RADICAL FASH Quotation. If the Quotation has been provided verbally, or if the Quotation has not (yet) been confirmed in writing and has not been signed by both parties, the Agreement will be deemed to have been concluded when RADICAL FASH has started executing the Agreement at the request of the Purchaser.
3.5 If the Purchaser accepts a Quotation, RADICAL FASH shall nevertheless have the right to revoke its Quotation orally or in writing within 14 days of receipt of acceptance, in which case no Agreement shall have been concluded between the Parties.
3.6 If the acceptance of the Quotation contains reservations and/or changes by the Purchaser with respect to the Quotation made by RADICAL FASH to the Purchaser, the Agreement will not, in deviation from the aforementioned, be concluded until (an authorized representative of) RADICAL FASH agrees in writing to these reservations and/or changes.
3.7 If the Customer places an order with RADICAL FASH either verbally or in writing that is not preceded by a Quotation from RADICAL FASH, an Agreement will only be concluded when the order is confirmed in writing or electronically by an authorized representative within RADICAL FASH within 14 days of receipt of the order, or when RADICAL FASH has commenced the execution of the order within 14 days of receipt of the order.
4 Prices
4.1 Unless otherwise stated, the prices stated in a Quotation are exclusive of VAT and other government levies, and exclusive of any costs and expenses to be incurred in connection with the Agreement, such as shipping and administration costs. These levies and costs and expenses will be charged separately by the Contractor, unless the Parties agree otherwise in writing.
4.2 The prices stated in a Quotation or Agreement for the Products to be delivered by RADICAL FASH are based on delivery ex warehouse. This in fact means: excluding costs related to any transport from the RADICAL FASH warehouse to the Purchaser's address.
4.3 RADICAL FASH calculates its prices of the Products to be delivered on cost price factors, such as the purchase price of the materials to be used and labour costs. RADICAL FASH is entitled to change the prices or parts thereof of Products not yet delivered and/or not yet paid for if one or more cost price factors undergo a change after the conclusion of the Agreement that directly affects the price of the Products to be delivered. RADICAL FASH is also entitled to adjust prices without delay if a statutory price-determining factor gives reason to do so. If the Purchaser has a periodic payment obligation, RADICAL FASH is entitled to adjust the applicable prices and rates in writing within a period of at least three months. If the changed prices deviate by more than 15% from the originally agreed prices, the Purchaser has the right to terminate the Agreement.
4.4 When making Quotations, RADICAL FASH assumes that it will be able to deliver the Products under normal and customary circumstances. In the event of special circumstances that require RADICAL FASH to incur additional costs, RADICAL FASH will notify the Purchaser thereof and RADICAL FASH will have the right to charge the Purchaser for the additional costs.
4.5 With regard to the services provided by RADICAL FASH and the amounts owed by the Purchaser for these services, the relevant documents and data from the administration or systems of RADICAL FASH shall constitute full evidence, without prejudice to the Purchaser's right to provide evidence to the contrary.
5 Execution of Agreement and delivery
5.1 After the Agreement has been concluded, RADICAL FASH will proceed to deliver the Products as stated in the Agreement.
5.2 All stated and/or agreed delivery times are based on data and circumstances that were known to RADICAL FASH when entering into the Agreement. These delivery times always apply as target dates, these delivery times do not bind RADICAL FASH and are only indicative and are never to be regarded as fatal terms, unless expressly agreed otherwise in writing between the Parties. RADICAL FASH makes every effort to observe the relevant delivery times as much as possible, but a single exceeding of a delivery time does not constitute a shortcoming. Delay in delivery will never give the Purchaser the right to terminate the Agreement or to any form of compensation.
5.3 RADICAL FASH shall deliver the Products in all cases at the time they are ready at the address of its warehouse. All risks relating to Products to be delivered by RADICAL FASH shall pass to the Purchaser at the time the Products are delivered by RADICAL FASH there.
5.4 In the event that the Purchaser wishes RADICAL FASH to arrange for the transport of the Products from its warehouse to an address specified by the Purchaser and RADICAL FASH agrees to this, this does not mean that delivery will take place later or at a different location than stated in article 5.3. This Agreement regarding this transport concerns an additional agreement, whereby the costs of transport and the risks of transport are fully borne by the Purchaser.
5.5 The Purchaser must accept the Products at the time of delivery.
5.6 RADICAL FASH is entitled to deliver in parts (partial deliveries), which partial deliveries it can invoice separately (partial invoices). The Purchaser is obliged to pay these partial invoices in accordance with article 11 of the General Terms and Conditions.
5.7 If the Customer refuses to accept the ordered Products, RADICAL FASH is permitted:
aa To deliver the Products by means of a written notice, in which case RADICAL FASH will store the Products with it or a third party from the moment of written notice, at the expense and risk, including the risk of deterioration in quality, of the Purchaser; or
bb To proceed to full or partial termination of the Agreement and to sell and deliver the Products to (a) third party(ies).
5.8 If RADICAL FASH, in whatever form, suffers damage as a result of the fact that the Purchaser refuses to accept the ordered Products, the Purchaser is liable for this damage.
5.9 The Purchaser is obliged to do everything that can reasonably be expected of the Purchaser to enable timely delivery by RADICAL FASH, failing which RADICAL FASH is entitled to suspend its delivery obligation.
6. Amendment of Agreement and additional work
6.1 If during the performance of the Agreement it appears that it is necessary to amend or supplement it for its proper performance, the Parties will amend the Agreement in a timely manner and in mutual consultation.
6.2 If the nature, scope or content of the Agreement is changed, this may have consequences for the originally agreed price and the originally stated term of execution. RADICAL FASH will, if this is the case, inform the Purchaser in advance as much as possible about the new price and term of execution. The Purchaser accepts the possibility of changing the Agreement, including the change in price and term of execution.
6.3 If the Agreement is amended, including a supplement, RADICAL FASH
entitled to suspend the performance of the original Agreement until the Purchaser has given written approval for the performance of the amended
Agreement specified price, execution period and other conditions.
6.4 If it is necessary for the proper execution of the Agreement to amend the Agreement, the Purchaser is obliged to cooperate within reasonable limits. If the Purchaser refuses to give written approval within a reasonable period of time regarding the amendments to be implemented, RADICAL FASH has the right to terminate the Agreement in whole or in part, without being obliged to pay any compensation to the Purchaser. In the event that the Purchaser withholds approval on unreasonable grounds, the Purchaser – regardless of whether RADICAL FASH has terminated the Agreement – is obliged to pay the originally agreed price to RADICAL FASH.
6.5 Without thereby being in default of the performance of the Agreement, RADICAL FASH may refuse a request to amend the Agreement if this could have consequences in terms of quality and/or quantity, for example for the Products to be delivered in that context.
6.6 If RADICAL FASH is required to perform work for the Purchaser, for whatever reason, that is not recorded in writing in an Agreement between both Parties, or if costs arise due to the Purchaser, then this work/costs will be considered additional work and charged as such. The Purchaser is obliged to ensure payment thereof.
6.7 The fact that additional work occurs during the performance of the Agreement shall never be grounds for the Purchaser to terminate or dissolve the Agreement.
7 Retention of title
7.1 Ownership of the Products delivered by RADICAL FASH to the Purchaser will only be transferred to the Purchaser once the Purchaser has paid everything that RADICAL FASH may have or may acquire under all Agreements with the Purchaser and Products delivered in that context, within the limits of Article 3:92 of the Dutch Civil Code.
7.2 RADICAL FASH shall not lose its (reserved) ownership if and/or because the Purchaser processes or edits the Products received from RADICAL FASH. In that case, the Purchaser shall automatically hold the Products in question for RADICAL FASH.
7.3 The Purchaser is obliged (1) to insure the Products delivered but not (yet) (fully) paid for, (2) to immediately transfer to RADICAL FASH by means of assignment all rights of claim that the Purchaser may have with regard to the Products delivered by NOAH vis-à-vis third parties at the request of RADICAL FASH, (3) to inform third parties that the Products delivered by RADICAL FASH to the Purchaser have been delivered by RADICAL FASH under retention of title if the Purchaser has not (yet) (fully) paid for the Products.
7.4 If the Purchaser fails to fulfil its obligations or if there is a well-founded fear that it will fail to fulfil its obligations, RADICAL FASH is entitled to remove the delivered Products to which the retention of title referred to in paragraph 1 applies from the Purchaser or from third parties who hold these Products for the Purchaser. The Purchaser is obliged to provide all cooperation to this end, under penalty of an immediately due fine of 10% per day or part day that the Purchaser fails to fulfil this obligation of everything that the Purchaser owes to RADICAL FASH, without prejudice to the right to demand fulfilment of the obligations referred to in the previous sentence and/or compensation.
7.5 For Products returned under this article, the Purchaser will be credited for the market value of the returned Products on the day of return.
7.6 Furthermore, RADICAL FASH delivers all Products subject to a silent pledge on the Products in favor of RADICAL FASH. After the retention of title has expired, the Purchaser will therefore receive ownership of the Products encumbered with a silent pledge in favor of RADICAL FASH. These pledges serve as additional security for the payment of all that RADICAL FASH has or will have to claim from the Purchaser on any grounds whatsoever. At the first request of RADICAL FASH, the Purchaser will sign a deed establishing a pledge and register this with the tax authorities.
8 Right of retention
8.1 RADICAL FASH has a right of retention on all Products that are in the possession of RADICAL FASH from or on behalf of the Purchaser, regardless of the reason or cause thereof, as long as the Purchaser has not fulfilled all its obligations, for whatever reason, towards RADICALFASH.
8.2 In the event that the Products referred to in paragraph 1 of this article are wholly or partially destroyed or otherwise damaged or diminish in value which is not due to intent or deliberate recklessness on the part of RADICAL FASH, the Purchaser cannot claim any form of compensation with respect to these Products.
9 Investigation obligation/complaints
9.1 The Purchaser is obliged to check within 8 days after delivery of the Products whether the quantity and quality thereof are sound and comply with the Agreement concluded between the Parties. 9.2 In the event that the Purchaser discovers a defect in the quantity and/or quality of the delivered Products, the Purchaser must notify RADICAL FASH of the defect in writing without delay after discovery and no later than 8 days after delivery of the Products. If the Purchaser demonstrates that he could not reasonably have discovered the defect within the aforementioned period (hidden defect), the Purchaser must still report the defect in writing to RADICAL FASH within 8 days after discovery thereof, or at least within 8 days after the defect could reasonably have been discovered.
9.3 The written notification referred to in Article 9.2 must contain a description of the defect that is as detailed as possible. In addition, the Purchaser must also state the invoice number and the packing slip pertaining to the delivery, so that RADICAL FASH can respond to the complaint as adequately as possible.
9.4 If a complaint is not reported within the period stated in Article 9.2 and/or does not meet the requirements stated in Article 9.3, all rights of the Purchaser with regard to the defect or shortcoming noted shall lapse by operation of law.
9.5 If a complaint is found to be justified, whether or not by RADICAL FASH, RADICAL FASH has the choice to either improve/repair the relevant part of the delivery or to redeliver it to the Purchaser or to send a credit note to the Purchaser for the relevant part of the delivery, which will then be considered cancelled. If a complaint is found to be justified, the Purchaser is not entitled to any other form of (damage) compensation than that stated in the aforementioned sentence, except in the event of a liability situation as referred to in Article 15 of these General Terms and Conditions, in which case that Article will determine the amount of compensation to be received by the Purchaser.
9.6 The Purchaser is only entitled to return Products to RADICAL FASH after prior written approval from RADICAL FASH. Returns that were not preceded by a complaint and the associated data regarding the complaint as well as by written permission from RADICAL FASH are not permitted. In the event that the Purchaser returns the Products despite these provisions or returns them without valid reason, RADICAL FASH will keep these Products available to the Purchaser, insofar as they are not refused by RADICAL FASH, which will be at the expense and risk of the Purchaser. RADICAL FASH keeps these Products without any acknowledgement of the correctness of a claim under a guarantee on the part of the Purchaser. The costs of return shipments are at the expense of the Purchaser.
9.7 Any complaints do not release the Purchaser from his payment obligations.
10 Compliance RADICAL FASH / guarantees / shortcomings
10.1 RADICAL FASH will do its utmost to deliver the ordered Products to the Buyer in the same quantity and quality as ordered by the Buyer.
10.2 Communications by or on behalf of RADICAL FASH regarding quality, composition, design, colour, size, finish, properties in the broadest sense etc. of the delivered Products are only considered as guarantees if they are expressly confirmed in writing in the form of a guarantee by RADICAL FASH. If a Purchaser orders and receives a Product based on a sample from RADICAL FASH and the delivered Product corresponds to the sample, there will never be a shortcoming on the part of RADICAL FASH.
10.3 If the Purchaser has put the Products supplied by RADICAL FASH into use, has processed or processed them in whole or in part or has supplied them to third parties, it is established that RADICAL FASH has properly fulfilled the Agreement.
10.4 Minor deviations with regard to quality, colour, size, weight, finish, etc., which are deemed to be permitted in the market or technically unavoidable, as well as normal wear and tear of the delivered Products, shall never constitute grounds for a shortcoming on the part of RADICAL FASH.
10.5 Even minor deviations in the quantity delivered – that is to say less than 5% of the quantity ordered – never constitute a shortcoming on the part of RADICAL FASH.
10.6 If the delivered Products comply with the Agreement, but prove to be unsuitable for the purpose for which the Purchaser wishes to use them, this shall be at the Purchaser's risk. This shall not constitute a shortcoming on the part of RADICAL FASH.
11 Product recall
11.1 In urgent cases, in which case RADICAL FASH will judge whether or not a case is urgent, the Purchaser is obliged upon first request to return the already delivered Products to RADICAL FASH and, in the event that the Products have already been delivered by the Purchaser to third parties, to retrieve them from the third parties in question. In the event that RADICAL FASH proceeds with a product recall as described above, the Purchaser is obliged to take all measures that RADICAL FASH deems necessary in that regard and, as a result, to comply with all instructions of RADICAL FASH relating to the product recall and, in turn, the Purchaser will take as many damage-limiting measures as possible in that regard and make every effort to do so. In the event that NOAH decides to proceed with a product recall, RADICAL FASH is only obliged to either replace the Products or to send a credit note to the Purchaser in respect of the retrieved Products. In the event of a product recall, RADICAL FASH cannot be held liable for the payment of any form of compensation to the Purchaser.
12 Force Majeure
12.1 Force majeure pursuant to article 6:75 of the Dutch Civil Code shall in these general terms and conditions be understood to mean, in addition to what is understood by it in law and case law, all external causes and the consequences thereof, foreseen or unforeseen, over which RADICAL FASH has no influence, but which prevent RADICAL FASH from fulfilling its obligations or which make it so impossible, difficult and/or disproportionately expensive for RADICAL FASH that fulfillment of the Agreement cannot reasonably be expected of RADICAL FASH. Strikes in the company of RADICAL FASH or third parties must in any case be included, as well as extreme weather conditions, machine breakdown, machine malfunction, disruptions in the supply of energy and the circumstance that RADICAL FASH does not receive, does not receive on time or does not receive properly a performance that is important in connection with the performance to be delivered by it itself. RADICAL FASH also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the Agreement occurs after RADICAL FASH should have fulfilled its obligation.
12.2 RADICAL FASH may suspend the obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than two months, both RADICAL FASH and the Purchaser are entitled to terminate the Agreement, without any obligation to pay any form of compensation to the other party.
12.3 RADICAL FASH is entitled to demand payment for all that has already been performed by or on behalf of RADICAL FASH under the Agreement with the Purchaser prior to the moment of force majeure.
13 Payment
13.1 RADICAL FASH determines the payment terms. RADICAL FASH is free to request a down payment before it commences the execution of the Agreement.
13.2 Unless otherwise agreed, a payment for all amounts owed by the Purchaser to RADICAL FASH must be made by the Purchaser within 30 days of the invoice date. The value date on the bank statement is decisive and is considered the payment date.
13.3 If the Purchaser has any objections to the invoice received, the Purchaser must notify RADICAL FASH of these objections in writing within 8 days of the invoice date, failing which the correctness of the invoice will be established.
13.4 The Purchaser is never entitled to suspend its obligations towards RADICAL FASH and/or to offset them against its own claim on RADICAL FASH.
13.5 If the Purchaser does not pay the invoice within the payment term, the Purchaser will automatically be in default without prior notice of default being required. The Purchaser will owe contractual interest of 1% per month or part of a month on the amount owed from the date of default, unless the statutory (commercial) interest is higher, in which case the statutory (commercial) interest will apply.
13.6 All costs, both judicial and extrajudicial, which RADICAL FASH must make to enforce its rights, shall be borne by the Purchaser. The extrajudicial costs, in deviation from the statutory regulations in this regard, shall be set at an amount of 15% of the amount involved with a minimum of 200 euros excluding VAT.
13.7 If RADICAL FASH suffers damage as a result of the Purchaser's refusal to pay, in whatever form, the Purchaser is liable for this damage.
13.8 Payments by the Purchaser shall first be applied to reduce the costs and interest due (in that order) and then to reduce the principal amounts, with older claims taking precedence over new ones.
13.9 If RADICAL FASH deems it desirable and in any case if the Purchaser is in default with any payment obligation for whatever reason, RADICAL FASH is entitled, after entering into an Agreement, to deviate from the agreed payment arrangement and to demand payment in advance or security for the payment obligations of the Purchaser. The Purchaser must comply with this at the first request of RADICAL FASH.
13.10 If the Agreement has been concluded with more than one Purchaser, all Purchasers shall be jointly and severally liable for compliance with the payment obligations under the Agreement.
13.11 RADICAL FASH is at all times entitled to request the Purchaser for an advance payment or to oblige the Purchaser, if RADICAL FASH wishes to cover the orders to be delivered by it with a credit insurer to be determined by it, to cooperate in a credit assessment. If the Purchaser does not comply with the request for advance payment of the entire price agreed between the Parties or refuses to cooperate in a credit assessment or if no positive credit assessment is given, RADICAL FASH may terminate the Agreement in whole or in part with immediate effect without any notice of default being required from RADICAL FASH to the Purchaser, in which case the Purchaser is obliged to compensate the costs incurred by RADICAL FASH up to that point as well as the damage suffered by RADICAL FASH as a result of the termination. RADICAL FASH also has the option, in the event of refusal of advance payment by the Purchaser or if the Purchaser refuses to cooperate in a credit assessment or if no positive credit assessment is given, to suspend its obligations towards the Purchaser under the Agreement in whole or in part as referred to in Article 14. RADICAL FASH shall never be obliged to pay any form of compensation to the Purchaser in the event of a dissolution, termination or suspension of the Agreement, unless the dissolution, suspension or termination is based on facts and circumstances that can be attributed to RADICAL FASH. In the event that RADICAL FASH chooses to suspend its obligations towards the Purchaser in whole or in part, the provisions of Article 14 shall apply to the Parties.
14 Fear of non-compliance
14.1 If, after the conclusion of the Agreement, RADICAL FASH becomes aware of circumstances that give good reason to fear that the Purchaser will not fulfil one of the obligations, will not fulfil them correctly and/or will not fulfil them on time, which may be the case, among other things, in the event of bankruptcy or suspension of payments or when an application for one of these measures is pending with regard to the Purchaser, or if a decision has been taken to dissolve or merge the Purchaser or if a conservatory or execution attachment has been or will be levied on any part of the Purchaser's assets, or if the Purchaser fails to fulfil any payment obligation towards RADICAL FASH, all payment obligations of the Purchaser towards RADICAL FASH on any grounds whatsoever shall become immediately and fully due and payable. RADICAL FASH is entitled to demand immediate payment of these due and payable claims or to demand security for these due and payable claims.
14.2 In that case, RADICAL FASH is authorized to suspend the fulfillment of its obligations towards the Purchaser until payment and/or security for all payment obligations has been provided. If RADICAL FASH proceeds to do so, it is in no way obliged to compensate for damage and costs that arise in any way whatsoever on the part of the Purchaser as a result.
14.3 The Purchaser is liable for all damage resulting from the circumstances mentioned in this article on the part of RADICAL FASH.
15 Liability
15.1 If it is established in law or otherwise that RADICAL FASH may be liable to the Purchaser for damage suffered in connection with the Agreement, or on the grounds of unlawful act, or on any other grounds, then this liability, including any payment obligation based on Article 6:230 BW and/or Article 6:271 BW, shall at all times be limited in its entirety to what is regulated in this provision:
a. RADICAL FASH shall never be liable for damage arising because RADICAL FASH has assumed incorrect data/files provided by or on behalf of the Purchaser;
b. RADICAL FASH shall never be liable for any loss of profit, lost income, lost turnover, lost savings, damage due to business and other stagnation suffered by the Purchaser;
c. The liability of RADICAL FASH, including any payment obligation based on article 6:230 BW and/or article 6:271 BW, towards the Purchaser is at all times limited to the amount paid out by RADICAL FASH's liability insurance in the event in question;
d. In the event that RADICAL's liability insurance does not pay out for whatever reason, RADICAL's liability, including any payment obligation based on Article 6:230 of the Dutch Civil Code and/or Article 6:271 of the Dutch Civil Code, is limited to:
– the net value of the invoice relating to the Products to which the damaging event relates or, if multiple invoices relate to the damaging event, the net value of the last of this series of invoices sent by RADICAL FASH to the Purchaser prior to the moment the damaging event occurred;
– or, if the event giving rise to the damage is not based on the delivery of Products, or if no invoice has been sent for them, the net value of the last invoice sent by RADICAL FASH to the Purchaser prior to the moment the event giving rise to the damage occurred;
e. In the event that RADICAL FASH's liability insurance does not pay out for whatever reason, the total liability of RADICAL FASH, including any payment obligation based on article 6:230 BW and/or article 6:271 BW, towards the Purchaser in respect of any failure to perform, failure to perform on time and/or improperly or for any other reason attributable to it - regardless of the number of damage-causing events - will in no event exceed the net value of the last invoice sent by RADICAL FASH to the Purchaser prior to the moment that the damage-causing event occurred, provided that the total liability of RADICAL FASH will amount to a maximum of and never exceed € 10,000.
15.2 These restrictions shall only not apply in the event of intent or deliberate recklessness on the part of RADICAL FASH and/or managers of RADICAL FASH.
15.3 All subordinates of RADICAL FASH may invoke the above provisions against the Purchaser and, if necessary, also against third parties on an equal footing with RADICAL FASH.
15.4 Damage for which RADICAL FASH can be held liable must be reported to RADICAL FASH in writing as soon as possible, but no later than 15 days after it has occurred, under penalty of forfeiture of the right to compensation for this damage. This term does not apply if the Purchaser can demonstrate that the damage could not have been reported earlier for a valid reason.
15.5 Any claim for liability against RADICAL FASH shall lapse within 12 months after the Purchaser became aware of the damaging event or could reasonably have been aware of it.
16 Indemnification
16.1 Purchaser shall be liable for all damages, losses, costs and expenses, including but expressly not limited to attorney's fees, suffered by RADICAL FASH or third parties as a result of or in connection with a failure in the performance of an Agreement by Purchaser, regardless of whether such damage is caused by Purchaser, its personnel or another (legal) person or entity for which RADICAL FASH is legally liable.
16.2 Purchaser shall fully indemnify RADICAL FASH against all claims by third parties relating to damage, losses, costs and expenses of third parties arising from or related to a shortcoming in the performance of an Agreement by Purchaser, including but expressly not limited to claims as referred to in Article 6:185 in conjunction with Article 6:186 of the Dutch Civil Code. 190 BW, as well as the franchise amount referred to in those articles, as well as claims for (i) infringement of any intellectual property right in connection with the delivered goods, (ii) product liability, product safety and relevant worldwide legislation in the field of product liability, bodily injury and/or death, (iii) loss of or damage to goods, and/or (iiii) alleged or actual breach by RADICAL FASH of any of the warranties, representations, duties, liabilities and/or obligations contained in this Agreement, arising out of or in connection with the Agreement and/or Products or the use and exploitation thereof or arising out of or in connection with the activities or shortcomings of RADICAL FASH under this Agreement.
16.3 If RADICAL FASH is approached by third parties on this basis, the Purchaser is obliged to assist RADICAL FASH both in and out of court and to immediately do everything that may be expected of it in that case.
16.4 The Purchaser shall ensure that adequate insurance is in place to cover the execution risk as referred to above. The Purchaser shall be required to demonstrate that it has fulfilled this obligation at the first request of RADICAL FASH. The deductible shall at all times be borne by the Purchaser. If the Purchaser can claim a payment under an insurance agreement in connection with its possible liability towards RADICAL FASH, the Purchaser shall ensure that these payments are made directly to RADICAL FASH. Any payment to RADICAL FASH under an insurance agreement concluded by the Purchaser shall not affect RADICAL FASH's claims for damages against the Purchaser, insofar as these exceed the payment.
16.5 The Purchaser is always obliged to make every effort to limit the damage.
16.6 Should the Purchaser fail to take adequate measures, RADICAL FASH shall be entitled, without notice of default, to take such measures itself. All costs and damages incurred by RADICAL FASH and third parties as a result thereof shall be entirely at the expense and risk of the Purchaser.
17 Intellectual and industrial property rights
17.1 Purchaser shall not, without the prior written consent of RADICAL FASH, use the name or trademarks of RADICAL FASH, nor any words, images or symbols which in Purchaser's opinion may imply RADICAL FASH's involvement in or endorsement of any written or oral advertisement or presentation, logbook, plan, advice, brochure, newsletter, book or other published material prepared by RADICAL FASH.
17.2 The Products delivered by RADICAL FASH to the Purchaser under an Agreement do not explicitly imply any transfer of any intellectual or industrial property rights. All works made available to the Purchaser by RADICAL FASH under the Agreement shall remain the property of RADICAL FASH. The Purchaser shall only use these works for the purpose of and within the framework of the performance of the Agreement, within the limits of the Agreement, and may not reproduce, publish or make available to third parties in whole or in part or use them in any other way without the prior express written consent of RADICAL FASH.
17.3 All intellectual and industrial property rights, including but not limited to trademark, copyright, model and database rights, trade name rights, patent rights, which have been used or created in the context of the performance of the Agreement and/or included in the Products or in advice, including but not limited to products, production processes, applications, concepts, designs, drawings, inventions, models, techniques, works, methods, outcomes, creations, presentations, computer programs, know-how, data collections and other knowledge, shall belong exclusively to RADICAL FASH, unless otherwise agreed.
17.4 The Purchaser is not permitted to remove or change any indication regarding copyrights, trademarks, trade names or other intellectual and industrial property rights from the Products supplied by RADICAL FASH or the associated materials.
17.5 The Purchaser shall at all times fully respect all intellectual and industrial property rights of RADICAL FASH.
18 Transfer of rights and obligations
18.1 The Purchaser is not entitled to sell and/or transfer the rights and/or obligations under the Agreement to a third party.
18.2 RADICAL FASH is entitled to transfer its claims for payment of fees to a third party.
19 Applicable law and disputes
19.1 All legal relationships in which RADICAL FASH is a party are exclusively governed by Dutch law, even if an obligation is performed in whole or in part abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention 1980 (CISG) is expressly excluded.
19.2 The judge of the court of Noord-Holland, sitting in Haarlem, the Netherlands, has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, RADICAL FASH has the right to submit the dispute to the competent judge according to the law.