Duncan Kenneth Bailey

Duncan Kenneth Bailey

Terms & Conditions

These general terms and conditions of Duncan Kenneth Bailey (hereinafter referred to as DKB) shall apply to each instance of use of Duncan Kenneth Bailey. By placing an order with DKB you will be deemed to have agreed with these general terms and conditions. These terms and conditions shall be sent to the customer at no charge upon first request.

Definitions

1.1. In these general terms and conditions of sale and delivery, the following terms are defined as:

  • a. Customer: a natural person who acts as a buyer of goods or services, but is not acting in the course of a profession or a business
  • b. Distant communication technology: a means to reach agreements at a distance without simultaneous personal presence of the parties
  • c. Service(s): all work that DKB provides for or for the benefit of the customer, whether or not in conjunction with the delivery of products
  • d. Direct sale: sale of products or services in a store
  • e. Defect(s): any deviation of a product or service from the specification and any improper functioning of a product or improperly performed service
  • f. Delivery time: the time frame determined in the agreement within which the product must be delivered or the service must be rendered
  • g. Order: any order of products or services by a customer, via any form of communication, as well as any purchase of products or services via direct sale is considered to be an order subject to the applicability of the present terms and conditions
  • h. Agreement: any agreement that is reached between DKB and customer, any amendment or attachment to the agreement, and all (legal) actions required for the preparation or execution of the agreement
  • i. Product(s): item(s) which the customer undertakes to purchase from DKB
  • j. Specification: the description(s) drawn up or expressly approved by DKB of the products and services supplied by DKB by the parties shall apply, or in the absence of the latter, all that is common practice in the industry as a whole shall apply
  • k. Remote sale: a system organized by DKB for sales that are conducted or services provided by telephone or Internet, using one or several techniques for remote communication up until and including the moment of entering into the agreement
  • l. DKB: the private limited liability Duncan Kenneth Bailey located at Smakkelaarshoek 5, 3511 EC, Studio 10 Utrecht, registered with the Chamber of Commerce under number 94773130, as well as all legal successors under general or special title
  • m. Terms and conditions: the latest version of these general terms and conditions of sale and delivery for customers. These terms and conditions shall be sent to the customer at no charge upon first request
  • n. Reflection period: the legal period within which customers may exercise their right of withdrawal

Applicability and validity

2.1. These terms and conditions shall apply to all estimates, offers, agreements or sales of products to which DKB has declared these conditions to be applicable, regardless of the means of communication used, unless otherwise expressly agreed upon in writing by both parties.

2.2. The present terms and conditions shall likewise apply to all agreements with the customer for the performance of which the customer has to rely on third parties.

2.3. The DKB general terms and conditions of sale and delivery for businesses shall apply to all (legal) transactions between DKB and parties acting in the course of a profession or a business.

2.4. If at any time one of the provisions of the present terms and conditions proves to be void or voidable, or is or becomes invalid in full or in part, the remaining provisions of these terms and conditions shall continue to apply in full and DKB and the customer shall replace the void provision by an equivalent provision corresponding to the spirit of the void provision.

2.5. These terms and conditions have been drawn up in the English language. In the event of a discrepancy between any translation made of these terms and conditions and the original English version, the original English version shall prevail.

Offer and acceptance

3.1. An agreement can be made via remote sale or via direct sale.

3.2. All price estimates and quotations are offered without obligation and are merely invitations to place an order, unless otherwise expressly stated by DKB. The prices are offered subject to availability.

3.3. An order can only be considered accepted by DKB once written confirmation has been received from DKB.

3.4. DKB accepts no liability whatsoever for any discrepancies, deviations or dissimilarities between the customer’s order and DKB’s original quotation, unless otherwise expressly stated by DKB.

3.5. DKB reserves the right to refuse orders without giving reasons. In the event of such a refusal, DKB shall notify the customer within twenty-eight (28) days following placement of the order.

3.6. If no order confirmation is sent due to circumstances including the nature, size or urgency of the order, the DKB invoice shall be considered to be an order confirmation.

3.7. Any agreement can be cancelled by DKB on the condition that the customer, at DKB’s exclusive discretion, is insufficiently solvent to meet the terms of the agreement.

Approval period

4.1. In the event of a remote sale, the offer is subject to an approval or reflection period of twenty-eight (28) days, starting on the day of receipt of the product(s) ordered by or on behalf of the customer.

4.2. If the products are used, encumbered or damaged in any way, the right to terminate under this article is revoked. Subject to the provisions in the previous sentence, DKB shall confirm the order cancellation after receipt and inspection of the returned products by return post and ensure that the complete purchase amount shall be returned to the customer within thirty (30) days after receipt of the complete return shipment.

4.3. Limitations and exclusions of the reflection period shall be clearly listed by DKB in accordance with the provisions of Article 7:46d of the Dutch Civil Code (BW).

4.4. The customer may only invoke the reflection period in the manner indicated by DKB during the purchase or delivery of the product or service.

Prices and payment

5.1. Unless otherwise specified, all prices are expressed in euros including VAT and other statutory taxes, as well as any travel, shipping and administrative costs indicated in the agreement.

5.2. DKB reserves the right to increase the price agreed with the customer. If this price increase occurs within three (3) months after signing the agreement, the customer may terminate the agreement. If this price increase occurs more than three months after the date of signing the agreement, the customer may terminate the agreement if the price increase is greater than 5%.

5.3. DKB accepts no liability whatsoever for wrong price listings or other factual errors in the offer or the quotation, on the DKB website, in advertisements, in publications, in order confirmations, in invoices or in other documents if the customer may reasonably understand or could have understood that the error was the result of an honest mistake or inadvertent omission.

5.4. In the event of a remote sale, all payments must be made by credit card. It is at DKB’s discretion to decide whether they will deliver on credit without giving reasons to the customer in the event that they refuse to deliver on credit. If the transaction is approved, all invoices must be paid within twenty-eight (28) days of the date of the invoice, without any right to discount, deduction or deferment, in the manner indicated by DKB and in the currency stated on the invoice, unless otherwise stated in the agreement.

5.5. If the customer has not paid the invoice within nine (9) days after due date, the customer shall be considered legally in default and from that moment the customer shall be charged interest in accordance with the legal interest rate as indicated in Article 6:119 of the Dutch Civil Code. The interest over the amount due shall be calculated from the moment that the customer is in default until the moment of payment of the full amount due.

5.6. If, after the end of the term listed in Article 5, paragraph 5, DKB is required to take collection measures, the customer shall be liable for all costs. However, if the collection costs incurred by DKB are higher than reasonably necessary, the customer shall be liable only for the actual collection costs. All judicial and extrajudicial costs shall also be charged to the customer. Judicial costs include lawyer’s and local counsel’s fees. The customer shall also be liable for interest over the collection costs due.

5.7. In the event of bankruptcy, moratorium or a petition for bankruptcy of the customer, the amounts due to DKB and the liabilities of the customer towards DKB shall become immediately due and payable.

5.8. In the event of a direct sale, payment must be settled in cash, credit card or digital transaction and paid in full at the place of delivery of the products to the customer.

5.9. In the event the customer has chosen and DKB has agreed to pay in parts/settlements, after paying (any) part of the total sum of products, the residual amount is also indebted by the customer. Meaning: the remaining part of the total sum of products is indebted and must be paid in full to DKB by the customer. If needed a collection agency or (legal) council will used. All costs arising from this are passed on to the customer.

Claims

9.1. The customer is under a duty to inspect the products as soon as they are delivered, and shall notify DKB in writing of any damaged goods, shortage or non-delivery as soon as possible but not later than within 24 hours of the date of delivery of the goods, on penalty of forfeiture of rights.

9.2 The customer is responsible for a timely submission as well as the accuracy of the claim. The customer is required to provide all assistance to DKB in determining the nature of the defect(s).

9.3. Minor deviations in quality, colour, size, etc. that are customary in the industry may not be claimed as defects.

9.4. If a complaint regarding the aforementioned aspects is found to be justified, DKB shall replace the products free of charge. The customer shall not be entitled to claim any supplementary compensation.

9.5. If the customer has not submitted a complaint within the period of time specified in the paragraphs above, or if the customer remains in possession of the goods, he is considered to have accepted the goods that have been delivered. Any such complaints do not give the customer the right to suspend payment. Setoff is explicitly excluded.

Retention of title

10.1. All products delivered by DKB in the context of the agreement remain the property of DKB, and in some cases of a third party, until the customer has properly fulfilled all obligations arising from the agreement concluded with DKB.

Transfer of risk

11.1. The risk of loss of, damage to or depreciation of the goods passes to the customer on delivery of the goods.

Termination

12.1. DKB shall be entitled to suspend the fulfilment of the obligations or to terminate the agreement if:

  • a. The customer does not or does not fully or in due time fulfil the obligations under the agreement
  • b. After the agreement has been concluded, DKB learns of circumstances that give good reason to fear that the customer will fail to fulfil his obligations under the agreement. If DKB suspects or has reason to suspect that the customer will fail to perform the terms of the agreement, in part or in full, DKB reserves the right to terminate the agreement
  • c. The customer has been judged legally incompetent by a court or is remanded in custody or has his liberty restricted
  • The data provided to DKB by the customer do not correspond to the actual situation

12.2. In the event that the agreement is terminated, all outstanding sums payable to DKB by the customer shall become immediately due and payable. In the event that DKB suspends the performance of its obligations under the agreement, it shall retain all rights to the fullest extent permitted by law and the agreement.

12.3. DKB reserves the right to claim compensation.

Force majeure

13.1. DKB and the customer are not obliged to comply with any obligation if they are hindered in doing so by a circumstance that is not their fault and that is not regarded as their responsibility under the law, a legal act or generally accepted practice. If a failure to comply with a contractual obligation is the result of force majeure on the part of either party, the other party may dissolve the agreement. Under Article 6:78 of the Dutch Civil Code, the party invoking force majeure shall only be liable for the damages incurred by the other party if and in so far as the other party enjoyed an advantage in connection with the breach of the agreement that it would not have had in the event of proper compliance, which liability shall be restricted to the value of this advantage.

13.2. In addition to what is included in the law and jurisprudence, in these terms and conditions, force majeure is defined as all external causes, foreseen or unforeseen, on which DKB cannot exercise influence but that prevent DKB from fulfilling its obligations. This includes, but is not limited to, strikes in the DKB company, and breaches of contract on the part of suppliers of DKB.

13.3. DKB reserves the right to invoke force majeure if the circumstance that prevents (further) compliance takes effect after DKB should have complied with its obligations under the agreement.

13.4. The parties may suspend obligations under the agreement for as long as the force majeure continues. If this period extends two (2) months, either party is entitled to resolve the agreement, without any obligation to pay compensation for damage to the other party. DKB is entitled not to refund the already made payments or future payments if there is a payment plan in stall, but instead offer the other party the possibility to change dates in the same year.

13.5. To the extent that, at the time when force majeure takes effect, DKB has partially complied with its obligations under the agreement or will be able to comply with them, and independent value is attached to that part of the obligations that has been or will be complied with, DKB is entitled to invoice separately for the said part. The customer is required to settle this invoice as if it related to a separate agreement.

Indemnification

14.1. The customer indemnifies DKB against third-party claims for any damages whatsoever to persons or property arising from the implementation of the agreement, the cause of which cannot be attributed to DKB.

14.2. The customer shall be obliged to assist DKB at law and otherwise if a claim is lodged against DKB by a third party, pursuant to this Article, and to do all that may be expected of the customer in such a situation without hesitation. If the customer fails to take adequate measures, DKB shall be entitled to take such measures without a notice of default being required. All costs and damage that may be incurred and suffered by DKB and third parties as a result shall be fully at the customer’s risk and expense.

Intellectual property

15.1. Unless expressly agreed otherwise in writing, all copyrights and other intellectual and industrial property rights pertaining to products delivered or services provided by DKB, including brand rights, model rights, patent rights, sui generis database rights, etc. are the exclusive (legal, intellectual and industrial) property of DKB or its suppliers.

15.2. Both parties are obliged to observe confidentiality with respect to all confidential information that they have obtained in connection with the agreement from each other or from any source. All information is regarded as confidential unless express indication to the contrary is given in writing.

15.3 If DKB is required on the grounds of a provision of law or a pronouncement of the court to disclose confidential information to third parties appointed by the law or the competent judge, and is unable to avail itself in this regard of a legally defined privilege or one recognized or granted by the competent judge, DKB shall not be required to compensate or indemnify the customer due to breach of the confidentiality obligation and the customer shall not be entitled to dissolve the agreement on the grounds of any damage arising as a result.

15.4 The mutual obligation of confidentiality shall remain in force even after termination of the agreement.

Protecting customer data

16.1. DKB shall collect, use and transfer personal data pertaining to the customer in accordance and in full compliance with applicable national and European legislation and regulations.

16.2. DKB respects the privacy of the customer and the confidentiality of the customer’s personal information collected via the DKB website by itself or on its behalf. Information provided by the customer shall not be sold or distributed in any form to third parties in any manner other than stated in the website’s privacy statement.

16.3. DKB is entitled to disclose information about a visitor if there is reason to assume that disclosing such information is necessary to identify, contact or institute proceedings against someone who intentionally or otherwise prejudices or harms the rights and properties of DKB, other users of the website or others who may be harmed. DKB is entitled to release information about users if it believes in good faith that the law so requires.

Applicable law and disputes

17.1. All legal relations between DKB and the customer are governed by Dutch law, regardless of the country where the relations are conducted or where the customer resides. The Convention on the International Sale of Goods (Vienna 1980) shall not apply.

17.2. All disputes between the parties, including disputes only recognized as such by one party, shall be settled exclusively by the competent court in Utrecht, the Utrecht District Court, unless the customer chooses a different competent court within a month after the customer receives DKB’s notification of dispute. The above provisions notwithstanding, DKB reserves the right to summon the customer to appear before the competent judicial authorities in Utrecht.

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