Flexim International B.V. Webshop General Terms and Conditions
Article 1. Definitions
In these general terms and conditions, the following definitions apply:
- General Conditions: these general terms and conditions.
- Cooling-Off Period: the period within which a Consumer can exercise their Right of Cancellation.
- Business: a legal entity that acts in the course of a business or profession and contracts as such with Flexim.
- Flexim: Flexim International B.V., with registered office at Buys Ballotstraat 4, 1704 SK Heerhugowaard, registered with the Netherlands Chamber of Commerce under number 37051639, user of these General Conditions.
- Consumer: a natural person who does not act in the course of a business or profession and contracts as such with Flexim.
- Right of cancellation: the possibility for the Consumer to cancel the Contract within the cooling-off period.
- Buyer: a party, either a Consumer or a Business that buys the products from Flexim.
- Model form: the standard cancellation form supplied by Flexim to a Consumer for the Consumer to complete if they want to exercise their right of cancellation.
- Contract: the distance contract between Flexim and the Buyer, whereby within the framework of Flexim’s system for the distance sale of goods, up to and including the conclusion of the Contract, any remote communication techniques have been used.
- Parties: Flexim and the Buyer together.
- Written: by post or by e-mail.
- Website: https://www.flexim.eu, the website of Flexim where its goods are being offered and the Contract can be concluded.
Article 2. Scope
2.1 These General Conditions govern each offer by Flexim, each order between Flexim and the Buyer through the Website, and each concluded Contract.
2.2. Before the Contract is concluded, the text of the General Conditions must have been available to the Buyer, either via the Website or otherwise. If this is reasonably not possible before the conclusion of the Contract, it should be recorded that the General Terms and Conditions have been available for inspection at Flexim and will be sent as soon as possible free of charge by post or by electronic means to the Buyer on request (PDF per e-mail).
2.3 Differing conditions apply only if and insofar as expressly accepted by Flexim in writing.
2.4 If any provision of these General Conditions is completely or partially revoked or declared invalid by a court at any time, then this does not affect the operation of the remaining provisions.
2.5 If at any time Flexim does not demand strict compliance with the General Conditions, this shall not mean that the provisions do not apply, or that Flexim would lose to any extent the right to demand strict compliance with the provisions of these General Conditions in other cases.
2.6 These General Conditions also apply to Contracts for the execution of which Flexim has engaged third parties.
2.7 Flexim is entitled at all times to amend these General Conditions. Any amendment will take effect within a reasonable time after it has been announced, or once the Buyer concludes a new Contract following the amendment, whichever occurs earlier.
Article 3. The offer
3.1 If an offer is open for a limited period, or is made subject to conditions, this will be expressly indicated in the offer.
3.2 The offer is non-binding. Flexim is entitles to change the offer.
3.3 The offer on the Website contains a complete and accurate description of the goods and this description is sufficiently detailed to allow a proper assessment of the offer by the Buyer. The pictures of the products on the Website are truthful.
3.4 Flexim cannot be bound by its offer if the Buyer ought reasonably to have realised that the offer, or a part thereof, contains an obvious mistake or typographical error.
3.5 All pictures, specification and data in the offer are an indication only and cannot justify an award of compensation or termination of the Contract.
3.6 Every offer on the Website contains such information that makes it clear to the Buyer what rights and obligations are involved in accepting the offer.
Article 4. The Contract
4.1 Subject to the provisions of section 4, the Contract will be concluded at the moment when the Buyer accepts the offer and when the conditions thereby stipulated have been fulfilled.
4.2 If the Buyer has accepted the offer by electronic channel, Flexim shall immediately confirm by electronic channel the receipt of the acceptance of the offer. Until Flexim confirms receipt of the acceptance, a Consumer can terminate the Contract.
4.3 Flexim takes appropriate technical and organizational measures in order to protect the electronic data transfer (personal data) and ensures a secure web environment. Flexim also refers to article 17 of these General Conditions. If the Buyer can pay electronically, Flexim shall take appropriate security measures.
4.4 Flexim shall supply the goods together with the following information in writing or in such a manner so that the Buyer can store it in an accessible way on a durable data carrier:
- the visiting address of the Flexim branch where the Buyer can lodge any complaint;
- the conditions under which and the manner in which the Buyer can make use of the Right of Cancellation, or a clear notification relating to the exclusion of the Right of Cancellation;
- the information about guarantees and existing post-purchase service; and
- the data included in article 3, section 6, of the General Conditions, unless Flexim has already provided the Buyer with the data before the execution of the Contract.
4.5 Any Contract is only binding on condition of sufficient availability of the goods.
Article 5. Delivery
5.1 The risk in respect of the goods will pass to the Business at the moment of delivery, being the time when the goods leave the warehouse or other premises of Flexim.
5.2 The risk in respect of the goods will pass to the Consumer at the moment at which the goods are actually received by the Consumer.
5.3 Flexim has the right to part deliver goods bought as one batch of products or as one batch of quantity of products.
5.4 Delivery dates are approximate. Exceeding the delivery period does not entitle the Buyer to compensation under the Contract. In case of a late delivery, Flexim must be served with notice of default, stipulating a further reasonable period within which Flexim should fulfil its obligations.
5.5 Exceeding the delivery time does not entitle the Buyer the right to terminate the Contract. Insofar as any right to termination does arise, notice should be in writing within five days after the expiry of the delivery period, and on condition that Flexim is in default.
5.6 Products that after the expiry of the delivery period have not been collected by the Buyer, remain at the disposal of the Buyer and will be stored by Flexim at the expense and risk of the Buyer, notwithstanding the payment obligations of the Buyer.
5.7 If the delivery of the ordered goods proves impossible, Flexim will endeavour to provide replacement goods.
5.8 In all cases and under all circumstances Flexim is entitled to suspend delivery to the Buyer until all payments owed by the Buyer to Flexim, on whatever grounds, have been paid in full.
Article 6. Warranties
6.1 Flexim warrants its product Flexim roof mortar as a sealing and bonding material for a period of 10 years, as set out in detail in the warranty document that can be requested from [email protected]. This warranty only applies if Flexim roof mortar has been used as a sealant for coping (ridge and corner cutter) in new construction (both ceramic and concrete) in compliance with the processing instructions. Liability under this warranty is at all times limited to the purchase price of the product.
6.2 The warranty will lapse if the Buyer and/or third party engaged by the Buyer has not properly used the product, or has worked on, or made changes to, the product.
6.3 For as long as the Buyer does not meet its obligations under the Contract, Flexim is not obliged to provide such warranty.
Article 7. Price, payment and shipping costs
7.1 During the validity period indicated in the offer, the price of the offered goods will only be increased if there are any changes price-determining factors, such as a change in the price of raw materials, materials, wages, taxes (VAT), duties, levies, charges, freight, as well as all other price-determining factors in the Netherlands and abroad.
7.2 After the conclusion of the Contract prices will not be changed, except in the case of any change of VAT rate.
7.3 All prices, whether or not mentioned on the Website, are inclusive of VAT at the rate applicable in the Netherlands and other duties imposed at any time by the government.
7.4 Payment will be made in advance, unless agreed otherwise. Delivery will be made after payment is received by Flexim.
7.5 The Buyer must immediately notify Flexim of any inaccuracies in the payment data it has supplied.
7.6 If the Buyer does not meet a payment obligation on time, and the Buyer has been informed by Flexim of the late payment, and Flexim has granted in the case of a Consumer a period of 14 days to comply with the payment obligations, and the Consumer still fails to make payment within these 14 days, then the debt accrues interest at the rate of 1% per month, whereby a part of a month is regarded as a month. If for any reason such a provision is unenforceable at law, a Consumer is liable to pay the standard interest rate pursuant to book 6 article 119 of the Dutch Civil Code, and a Business the commercial interest rate pursuant to book 6 article 119a of the Dutch Civil Code. In addition, Flexim is entitled to claim extrajudicial collection costs of 15% of the outstanding amount from the Buyer. In respect of a Consumer, Flexim can charge a lesser percentage.
7.7 If Flexim has issued court proceedings to recover a debt, the Buyer is also required to reimburse the actual costs involved in these proceedings including, but not limited to, the costs of lawyers, bailiffs and process agents, as well as court fees.
7.8 Any payment made by the Buyer should firstly be applied to offset costs, then the accrued interest, and finally the principal sum due to Flexim.
7.9 Flexim may, without being in default, refuse an offer for payment if the Buyer stipulates a different order for the allocation of the payment. Flexim can refuse full repayment of the principal sum, if the payment does not also include accrued and accruing interest, and collection costs.
7.10 A Business cannot suspend its payment obligation without explicit written permission from Flexim, whereas a Consumer may do so.
7.11 A discount of any kind will only be given on condition that the invoice of Flexim is paid on time. If payment is not made in time, then the discount will lapse with immediate effect and the full amount without discount is owed to Flexim.
7.12 Within the Netherlands, any order above EUR 50.00 including VAT will be sent postage free. The shipping costs for orders under this amount are EUR 4.95 including VAT.
7.13 The cost of shipping goods to Belgium is EUR 8.00 including VAT and to France, Germany, Denmark and the United Kingdom EUR 16.00 including VAT.
7.14 The following payment methods are applicable: Creditcard, iDEAL en PayPal.
- Government regulations
8.1 Flexim is only responsible for ensuring that the goods comply with the technical requirements and/or standards set by the laws or regulations of the country where the goods are to be used, insofar as the order and the confirmation contain a confirmation by Flexim of the destination and the corresponding requirements.
8.2 In addition to the provision in section 1 and unless otherwise agreed, the Buyer is responsible for ensuring that the goods comply with any other legislation and regulations applicable in the country where the goods will be sold and/or used.
Article 9. Right of cancellation
9.1 If a Consumer purchases goods from Flexim, they have the right to cancel the Contract without giving reasons within 14 days. This Cooling-Off Period begins on the day following receipt of the goods by the Consumer.
9.2 During the Cooling-Off Period, the Consumer shall take good care of the product and the packaging. They should unpack or use the product only to the extent necessary to ascertain whether they want to keep the product. If they exercise their Right of Cancellation, they must return the goods to Flexim with all accessories delivered, as far as reasonably possible in their original condition and packaging, in accordance with reasonable and clear instructions issued by Flexim. The risk and burden of proof for the correct and timely exercise of the Right of Cancellation lies with the Consumer.
9.3 The Consumer is only liable for depreciation of the goods arising from handling of the product that goes beyond what is permitted in section 2. However, the Consumer is not liable for depreciation of the goods if Flexim has not provided the Consumer with all information about the Right of Cancellation prior to or at the time of conclusion of the Contract, as required by law.
9.4 If the Consumer wishes to exercise their Right of Cancellation, they must do so within 14 days after receipt of the goods, by notice to Flexim by means of the Model Form. Once the Consumer has given notice that they wish to exercise their Right of Cancellation, they must return the goods within 14 days. The Consumer must prove that the delivered goods have been returned in a timely manner, for example by means of a proof of shipping. Unless the Consumer informs Flexim that they wish to exercise their Right of Cancellation and returns the goods within the time periods stipulated in sections 2 and 4, respectively, the Contract is binding.
9.5 If the Consumer exercises their Right of Cancellation, they are responsible for the costs of returning the goods.
9.6 If the Consumer has made any payment, Flexim will refund this payment as quickly as possible, and in any event no later than 14 days after cancellation. This refund is conditional upon the goods having been received by Flexim or upon providing conclusive evidence that all the goods have been returned.
Article 10. Obligations of Flexim in respect of cancellation
10.1 If Flexim enables the Consumer to cancel by sending notice by electronic means, it must immediately send the Consumer a confirmation of receipt of this notice.
10.2 Flexim will reimburse all payments of the Consumer, including any delivery costs charged by Flexim for the returned goods, without delay, and in any event no later than 14 days following the date on which the Consumer sends notice of cancellation. Unless Flexim offers to collect the goods itself, it may withhold repayment until it has received the goods or until the Customer proves that it has returned the goods, whichever happens first.
10.3 Flexim will refund the payment by the same means of payment used by the Consumer, unless the Consumer agrees to another method. The refund is free of charge for the Consumer.
10.4 If a Consumer has chosen a more expensive method of delivery than the cheapest standard delivery, Flexim is not obliged to repay the additional costs of the more expensive method.
Article 11. Cooperation
11.1 Flexim relies on the information provided by the Buyer for the performance of the Contract. The Buyer is responsible for the accuracy of this information.
11.2 The Buyer must provide Flexim with all information necessary for the proper performance of the Contract in a timely manner.
11.3 The Buyer must inspect the goods for defects as soon as they have been delivered. The Buyer should also examine whether the quality and/or quantity of the goods are in accordance with the Contract terms.
Article 12. Complaints
12.1 Notwithstanding the provisions of article 9, if the goods do not meet the requirements of the Contract, insofar as they do not have the characteristics that the Buyer would expect on the basis of the Contract, the Buyer must notify Flexim in writing of the defects within 2 working days after the delivery of the goods or, if the defect had not yet occurred at the time of the delivery, within 5 working days after discovery of the defect, setting out details of the defects. Failing this, the Buyer cannot make any later claim that the goods do not meet the requirements of the Contract.
12.2 (Limited) Deviations in size, or colour
If Flexim has identified any defect or shortage, then it may choose – exclusively – either to repair or replace the defective goods, to deliver the missing goods, or to refund part or all of the purchase price of the defective or missing goods, with the proviso that if Flexim chooses to refund all or part of the purchase price, then the Buyer must return the defective goods to Flexim. The rights of the Buyer will expire if a complaint is not made in time.
12.3 A complaint does not suspend the Buyer’s payment obligations, unless the Buyer is a Consumer.
12.4 The Buyer must allow Flexim to investigate the complaint and in this context to provide all relevant information to Flexim. If it is necessary for the return of the goods in order to investigate the complaint, this shall be at the expense and risk of the Buyer, unless as a result of the investigation the complaint is upheld. No complaint can be made in respect of goods that are no longer in their original state and that cannot therefore be investigated by Flexim, and/or in respect of goods used in a careless or improper manner, or for a purpose other than that for which the goods are intended.
12.5 Goods must always be returned in their original packaging in a manner specified by Flexim. The costs are payable by the Buyer.
12.6 If a complaint is made by a Consumer, then the complaint may be made within a period of 2 months following the date on which the defect is detected.
12.7 Flexim will not take back any residues of goods, unless the packaging is sealed.
Article 13. Force majeure
13.1 If failure to comply with its obligations is not an attributable breach (force majeure) then Flexim cannot be held liable. If compliance is not yet permanently impossible, its obligations are suspended. If the period of force majeure has lasted longer, or will last longer, than two months, then either Party is entitled to terminate the Contract, without this giving rise to any obligation to pay compensation.
13.2 Apart from its definition in statute and case law, force majeure includes for the purposes of these General Conditions all external causes, foreseen or unforeseen, upon which Flexim can exert no influence, but as a result of which Flexim is unable to meet its obligations. Examples of force majeure include failure to have the ordered goods in stock, whether or not due to any embargo; transport difficulties; the full or partial default of any third party, including suppliers to Flexim of goods; restrictive government measures, including any failure to obtain a required licence; failure or interruption in the supply, delivery or availability of energy; failure or interruption of any public utility or in its functioning; failure or interruption or termination of supply of raw materials, semi-finished products, or end products; and any circumstances that Flexim could not reasonably have anticipated and on which Flexim cannot exert any influence.
13.3 Flexim is also entitled to plead force majeure inasmuch as the circumstance that prevents Flexim from fulfilling its (further) performance of the Contract, occurs after Flexim should already have complied with its obligations.
Article 14. Liability
14.1 Flexim is only liable for such loss as indicated in this article 14.
14.2 Subject to the following section, Flexim is only liable for direct loss. Liability for indirect loss, including loss of profits, consequential loss, monetary loss, lost savings and loss due to business interruption, is explicitly excluded.
14.3 Flexim is only liable for direct loss if, after Written notice of default stipulating a reasonable period in which to remedy the breach, it is still in breach. Direct loss means:
a. the reasonable costs of establishing the cause and extent of the loss, insofar as this relates to loss within the meaning of the General Conditions;
b. any reasonable costs incurred in enforcing specific performance by Flexim of its obligations under the Contract, insofar as its breaches are attributable breaches; and
c. the reasonable costs incurred in preventing or mitigating loss, insofar as the Buyer demonstrates that these costs have resulted in the mitigation of direct loss.
14.4 Flexim is not liable for loss of any nature whatsoever resulting from decisions taken by Flexim based on incorrect and/or incomplete information provided by the Buyer.
14.5 Any liability of Flexim to the Buyer for direct loss howsoever arising is limited to the total invoice amount of the relevant order, including shipping costs, and in any event up to the maximum amount covered by insurance, if and to the extent that Flexim is insured against the relevant liability.
14.6 The limitations of liability specified in this article also apply to the liability of third parties or subordinates engaged by Flexim.
14.7 Flexim shall not be entitled to limit its liability if its liability is the result of any deliberate act or gross recklessness.
14.8 The Buyer shall full indemnify Flexim against any third-party claim brought against Flexim related to the goods supplied to the Buyer.
Article 15. Retention of title
15.1 Flexim remains the owner of the delivered goods until all payment obligations are fulfilled.
15.2 In the event of the Buyer not paying in full, or an application being made for the Buyer’s bankruptcy, moratorium, or debt restructuring scheme, or if an attachment order is secured upon the delivered goods, Flexim is entitled to reclaim the delivered products with immediate effect. The Buyer gives Flexim unconditional and irrevocable permission for third parties appointed by Flexim to access all sites and locations where the goods belonging to Flexim are located, and to take back those goods, failing which the Buyer is immediately liable to pay a penalty of 10% of the payment due for each day that it is in breach of this obligation.
15.3 The Buyer is not permitted to dispose of or otherwise deal with the delivered goods until it has fully complied with its payment obligations, subject to the following section.
15.4 If any third party wishes to secure any attachment order upon goods subject to this retention of title, the Buyer must immediately notify Flexim in Writing.
Article 16 Termination
If the Buyer has been declared insolvent, is subject to a moratorium, has been made subject to a Debt Consolidation for Natural Persons scheme, dies, is placed under guardianship, has its possessions attached in execution of a court order, or is in breach of its obligations under Contract, Flexim is entitled to terminate all or part of the Contract, without the need to obtain a court order, and without the need to pay compensation. In such an event all sums owed to Flexim become due and immediately payable.
Article 17. Personal data processing
Article 18. Final provisions
18.1 These general terms and conditions and all Contracts are governed exclusively by Dutch law. The applicability of the Vienna Sales Convention is excluded.
18.2 Without prejudice to the right of Flexim to submit a dispute to the competent court according to law, disputes between the Parties will be submitted initially to the competent court for the district in which Flexim has its registered office.
18.3 Flexim is nevertheless authorized to settle any dispute through arbitration.
18.4 The General Conditions are drawn up in multiple languages. In the event of any discrepancy between the Dutch version and any other version, the Dutch version will take precedence.
Version July 2017