Terms and Conditions
Article 1 Company
1.1. Neverdark Benelux – hereinafter referred to as ‘Neverdark’, is a private company with limited liability under Dutch law.
1.2. Neverdark (which hereinafter also means: its directors and/or employees) is a specialized wholesaler in, among other things, atmospheric heating products and/or assignments related to this in a broad sense. The contracting party or and/or customer is further referred to as ‘customer’ in these terms and conditions.
Article 2 Applicability of general terms and conditions
2.1. These general terms and conditions apply to all agreements concluded with Neverdark, including assignments or requests or orders or offers given to Neverdark, including any follow-up assignment or amended or additional assignment, such to the exclusion of other general terms and conditions, unless in writing prior to the agreement. otherwise agreed.
2.2. These general terms and conditions have also been stipulated for the benefit of persons working for Neverdark, either working within the organization of Neverdark or outside it.
2.3. Neverdark reserves the right to unilaterally change these terms and conditions, about which it will then communicate with the customer.
2.4. The terms and conditions have been filed with the Chamber of Commerce in Amsterdam and thus replace previously used versions.
3. Conclusion of agreement
3.1. An agreement is not concluded until after written confirmation thereof by Neverdark. The information stated in this (order) confirmation (including size or prices or quantities) is leading when determining the content of the agreement and the resulting (partial) deliveries.
3.2. A quotation, (price) offer, advertising, folder or expression on the Neverdark website gives an indication of the services or deliveries or prices of Neverdark. No rights can be derived from this as long as a written confirmation as referred to in 3.1 is not made.
3.3. Deviations, mistakes, calculation, writing and/or typing errors in offers, quotations, prospectuses and publications, folders,
order confirmations, invoices and other descriptions from Neverdark are not binding on it. The same applies to deviations from (trial) models or drawings shown or provided, except for such deviations that the customer can no longer reasonably be obliged to purchase and that a dissolution is justified.
4.1. The prices stated by Neverdark are exclusive of sales tax, disposal fee, packaging and any other costs, unless otherwise agreed or stated in writing.
4.2. Neverdark is entitled to implement price increases after the agreement has been concluded, insofar as caused by cost-increasing factors, such as, but not limited to, an increase or introduction of (inter)national tax(s) or levy(s) or currency changes with regard to of the agreed (part) delivery(s). Price increases as referred to here are excluded for the customer as a basis to dissolve the agreement.
5. Transport and delivery
5.1. Deliveries of goods with an order amount of more than € 500 are made carriage paid to the customer’s home, unless otherwise agreed. The delivery of other goods takes place ex-warehouse. The costs and risk of transport are for the account of the customer. Cash on delivery costs are always for the account of the customer.
5.2. The customer bears the risk for (in)direct damage that may arise to goods during transport, as well as any costs due to the inability to deliver or the refusal of a delivery.
6. Delivery times
6.1. Any agreed delivery time is an indicative delivery time from which the customer cannot derive any rights, unless otherwise agreed in writing. Exceeding the delivery time therefore does not entitle the customer to dissolution and/or compensation.
6.2. Neverdark’s liability for any damage due to non-delivery, late delivery and/or incomplete delivery is expressly excluded.
7. (Part) deliveries and on-call agreements
7.1. In the event that delivery of goods on demand has been agreed or that a term is stipulated in the agreement within which goods must be purchased, the customer is obliged to pay for and accept the goods before the expiry of that term. If no term has been set for the call-off, Neverdark has the right to deliver the remainder of the order from 12 months after the conclusion of the agreement.
7.2. After the expiry of the relevant term as referred to in 7.1, the customer is obliged to immediately pay the amount due for all goods not yet purchased, increased by any storage costs, at Neverdark’s first request.
8. Receipt of goods and complaints
8.1. From the moment of receipt of the goods by the customer, there is a risk transfer at the expense of the customer.
8.2. Upon receipt of goods, the customer must carry out an inspection within 24 hours with regard to any damage to the goods. Defects found must be reported to Neverdark in writing and with reasons (with photos of the situation) within 2 working days after delivery, whereby goods and packaging must be kept, under penalty of forfeiture of rights.
8.3. If damage to the goods is easily recognizable on receipt because, for example, the (outer) packaging is broken, the customer must also report this on the waybill before signing for approval or receipt in addition to the provisions of paragraph 1 of this article. and to keep the goods and packaging, all this under penalty of forfeiture of rights.
8.4. Defects discovered after delivery must be reported to Neverdark in writing, stating reasons, within 2 working days of discovery, whereby goods must be kept, under penalty of forfeiture of rights.
8.5. Depending on the nature and extent of the goods and damage, Neverdark will make a decision regarding (for example) an additional delivery, replacement, repair or return. The customer must give Neverdark the opportunity to do so, on pain of forfeiture of rights.
8.6. Complaints never entitle the customer to a discount and/or settlement and/or suspension.
9. Payment and default
9.1. Neverdark may require a (partial) advance payment before proceeding to (partial) delivery.
9.2. The invoice(s) with regard to the agreed payment(s) must be paid within 14 days of the invoice date to the account number stated on the invoice, unless otherwise agreed in writing, without recourse to the customer to discount, suspension and/or settlement, failing which, without further notice, default occurs.
9.3. In the event of default, Neverdark is authorized to suspend or settle and/or terminate its obligations towards the customer, without being liable for any damage suffered by the customer as a result.
9.4. In the event of default, Neverdark is authorized to charge statutory commercial interest to the customer, plus extrajudicial costs of 15% of the agreed gross prices, with a minimum of €250 per unpaid invoice.
9.5. If the customer is in default with regard to payment obligations, of whatever nature, all reasonable costs incurred in obtaining payment – in and out of court, including collection costs in the broadest sense of the word – will be borne by the customer.
If you wish to use our customized solutions, we will schedule a consultation. A consultation is for acquaintance and in principle without obligation and free of charge. You can never derive any rights from (the content of) this conversation.
At your request, we will make a quotation in the form of a concept proposal. A concept proposal consists of a technical drawing and price calculation.
As soon as we receive your agreement with regard to the draft proposal and you have met any conditions set, we will start the realization of your project. We use the specifications in accordance with the quotation/proposal. We therefore ask you to read the proposal carefully and to check it for any inaccuracies.
Inaccuracies and/or changes must be reported to us as soon as possible and in any case no later than before you agree to the quotation. After your approval of the quotation, it is in principle not possible to change your order, subject to the provisions of Article 16.
If the assembly of the customization is part of the agreement, it will be determined in mutual consultation with you when the delivery will take place and, if applicable, the assembly will be carried out. Assembly days determined in mutual consultation are in principle final.
The right of withdrawal does not apply to products that we make (custom) or personalize in any way at your request according to your specifications.
11. Retention of title and securities
11.1. Neverdark hereby stipulates a retention of title until all claims have been settled, regardless of the nature, composition or structure and/or origin of the claim. The customer is therefore not permitted to alienate or encumber the goods delivered by Neverdark or to otherwise grant third parties rights with regard to those goods.
11.2. In the normal course of business, an exception applies to a (re)sale on credit. The customer is hereby obliged to
to stipulate retention of title. The claim(s) that may arise from the customer against its customers or customers may not be the subject of an assignment and/or pledge, without the prior written permission of Neverdark. The customer further undertakes to pledge those claims to Neverdark, if Neverdark so desires to provide additional security for Neverdark’s claims against the customer. Violation of this article will result in a fine equal to the amount remaining at Neverdark
outstanding amount of this customer.
11.3. In this context, the customer also has a warning obligation in the event of (imminent) (soil) attachment or any other circumstance that affects or nullifies Neverdark’s rights under the agreement and these terms and conditions.
11.4. The customer is obliged to provide Neverdark with information about the location of Neverdark’s property and to grant it free access to sites and/or buildings in order to (guarantee the) exercise of Neverdark’s rights.
11.5. Neverdark is entitled to request additional guarantees with regard to the execution of the agreement, before it proceeds to the execution of that agreement. In this regard, a pledge is established in advance as referred to in Article 3:237 of the Dutch Civil Code on goods delivered by Neverdark that become the property of the customer through payment.
11.6. In the event of processing or mixing with other items by the customer of the items delivered by Neverdark subject to retention of title, the customer is deemed to have effected this processing or mixing as an agent of Neverdark and Neverdark becomes the owner of the new item. In connection with this, the customer is obliged to store the goods delivered under retention of title carefully and as recognizable property of Neverdark. It must always be visible which items correspond to which delivery and in accordance with the generally accepted principle: first in first out. The customer is furthermore obliged to insure the goods against damage and theft for the duration of the reserved ownership and to provide policies for these insurances to Neverdark on first request. In the event of claims by the customer against an insurer of the goods, as soon as Neverdark expresses its wish to do so, these will be pledged by the customer to Neverdark in the manner indicated in Article 3:239 of the Dutch Civil Code to provide additional security for the claim of the customer. Neverdark on the customer.
11.7. During the retention of title, Neverdark is entitled to take back the delivered goods and to enter the place where these goods are located, for which purpose the customer authorizes Neverdark in advance. If the taking back of goods is the result of (imminent) default on the part of the customer, Neverdark is not obliged to any compensation from the customer, except for crediting the invoice(s).
12. Returns and Cancellation
12.1. Returns can only be accepted with Neverdark’s prior written consent and in accordance with the procedure to be indicated by it.
12.2. Costs related to any return shipments (including loss, damage and insurance) are for the account and risk of the customer. Neverdark is also entitled to store any goods returned without permission with third parties at the expense and risk of the customer.
12.3. In the event of a return or cancellation, Neverdark is entitled to charge 10% cancellation and administration costs of the gross invoice price, plus any costs.
12.4. Unless otherwise agreed in writing, a return or cancellation does not affect the agreed (payment) obligations of the customer.
12.5. Credit after cancellation is only applicable if the returned item is returned in the same condition as when it was delivered by Neverdark, therefore in the original packaging and in the condition of new, at the discretion of Neverdark.
12.6. Force majeure on the part of Neverdark provides no basis for the customer to dissolve the agreement.
13. Suspension, settlement and dissolution
13.1. Neverdark is entitled to suspend fulfillment of agreed obligations as long as the customer does not comply with his or her
obligations under the agreement or in the event of force majeure, followed if necessary by invoking the right to settlement and/or dissolution of the agreement.
13.2. Neverdark is entitled to dissolve the agreement in the event of (imminent) bankruptcy, suspension of payments, (partial) cessation of activities, liquidation or any comparable situation, at least when Neverdark suspects this and insufficient security for payment has been provided.
13.3. After dissolution on the part of Neverdark, all payments that may still be owed by the customer become immediately due and payable, without prejudice to Neverdark’s rights to full compensation.
13.4. Neverdark is not obliged to compensate damage or restitution if and insofar as it makes use of its right to suspension and/or set-off and/or dissolution.
14. Warranties and Use
14.1. Neverdark supplies products that meet European standards qualitatively and legally. However, no other guarantees are given with regard to the delivered goods and/or parts thereof than the guarantees that Neverdark has received from the manufacturer of a relevant item, unless otherwise agreed in writing.
14.2.Goods must be used in line with the purpose for which they were produced or delivered. If and insofar as instructions for use or regulations are supplied with the goods, these must be observed at all times. It the foregoing applies on pain of forfeiture of rights.
14.3. If and insofar as goods are delivered unassembled, the assembly risk is at all times for the account of the customer or (end) user, regardless of whether assembly instructions have been supplied and followed.
14.4. The customer or the (end) user of goods from Neverdark is not permitted to make changes to or to (the use of) the product, on pain of forfeiture of rights.
14.5. Neverdark is never bound by guarantees that are given by the customer to (end) user(s) or third parties without prior written permission.
15. Liability and Indemnification
15.1. Neverdark is not liable for damage suffered by the customer and/or the (end) user and/or third parties as a result of incorrect use of the delivered goods. In any case, but not exclusively, this means any act or omission on the part of the customer and/or the (end) user and/or third parties, contrary to reasonable use and/or the instructions for use and/or regulations, except in the case of intent or gross negligence on the part of the side of Neverdark.
15.2. If and insofar as Neverdark proves liable for damage caused by it, any liability will be limited to the amount that is paid out in the relevant case on the basis of the closed liability insurance.
15.3. If and insofar as for whatever reason no payment is made under the liability insurance as referred to under 14.2, any liability is limited to an amount equal to the payment obligation agreed with the customer for the (part) delivery to which the liability relates, with a maximum of a maximum of € 2,500 with the explicit exclusion of indirect (financial) damage.
15.4. Any liability on the part of Neverdark lapses if a defect and/or damage is not reported to Neverdark in a timely manner and with reasons in writing. Insofar as these terms and conditions do not specify a different period, an expiry period of three months applies after becoming aware of a defect and/or damage.
15.5. The customer also indemnifies Neverdark against all claims from third parties, including (end) users, that are in any way related to the goods delivered or produced, including the reasonable costs of legal assistance, except in the case of intent or gross negligence on the part of Neverdark.
16. Personal data
16.1. To the extent necessary in connection with business operations and/or to comply with legal obligations, various personal data are collected, stored, processed and provided to third parties. A statement of these third parties, with associated contact details, will be provided on first request.
16.2. Personal data is not kept for longer than is necessary for its use or to comply with legal requirements. The retention period is determined depending on the type of data. This is made clear at the request of the customer.
16.3. Neverdark has prepared a privacy statement with more information. This can be consulted via the website and will be sent on request.
16.4. The customer has the option to file a complaint with the Dutch Data Protection Authority if it believes that privacy legislation is not being complied with.
17. Other provisions
17.1. Dutch law applies to this agreement and the rights and obligations arising from it. Any disputes will be adjudicated by the competent court within the district of Amsterdam District Court, location Noord-Holland.
17.2. No other terms, conditions or agreements apply to the relationship between the parties than in writing in the
agreement and are included in these general terms and conditions.
17.3. Disabling or destroying (a part of) these general terms and conditions affects the validity of the other
not meet the conditions. If applicable, the provisions that are inapplicable or annulled will be replaced by provisions that are in line with them as far as possible in terms of scope.
17.4. Changes to the agreement and/or these general terms and conditions are only effective insofar as they have been agreed in writing. In addition, new agreements cancel older agreements on the same subject.
Agreements between you and us, to which these general terms and conditions apply, are exclusively governed by Dutch law. In the event of a dispute, the parties will do their utmost to reach a solution among themselves. If this is not possible, the dispute will be submitted to the competent court in the district where we are located, unless the law provides otherwise.
The Vienna Sales Convention is excluded.