ARTICLE 1. | DEFINITIONS
The following definitions, both in plural as in singular, are used in these general terms and conditions, insofar nothing else arises from the nature or scope of the provisions.
- Puccini Bomboni: Puccini Bomboni B.V., established at Staalstraat 17, 1011 JK in Amsterdam, registered in the Trade register of the Chamber of Commerce under number 33282710, as well as its sub-branches that act as user of these general terms and conditions.
- Counterparty: any natural person or legal entity with whom Puccini Bomboni has concluded or intends to conclude an agreement.
- Consumer: the counterparty as meant in the previous paragraph, natural person, not acting as a professional or company.
- Agreement: any agreement concluded between Puccini Bomboni and the counterparty, whereby Puccini Bomboni has committed itself towards the counterparty to sell and deliver products.
- Products: all goods to be sold and delivered by Puccini Bomboni in the context of an agreement, including, but not limited to, bonbons, other chocolate products and/or other consumption articles.
- Webshop/website: www.puccinibomboni.com, whether or not approached via another domain name.
- In writing: in addition to traditional written communication, communication per e-mail, per fax or any other way of communication which in view of the status of the technique and commonly accepted opinions can be equated to this.
ARTICLE 2. | GENERAL PROVISIONS
- These general terms and conditions are applicable on any offer of Puccini Bomboni and any concluded agreement.
- The applicability of any purchase or different general conditions of the counterparty, are explicitly rejected.
- Deviations from the provisions in these general terms and conditions are only valid if explicitly agreed in writing. If and insofar that what parties have explicitly agreed in writing differs from the provisions in these general terms and conditions, that what has been explicitly agreed by the parties in writing will be applicable.
- If one or more of the provisions from these general terms and conditions or the agreement as such is/are void or invalid, it will not affect the validity of the other stipulations. In a relevant case the parties are obliged to consult mutually in order to come up with a replacement provision regarding the affected stipulation. The objective and the scope of the original provision will thereby be considered as much as possible.
ARTICLE 3. | OFFER AND CONCLUDING AGREEMENTS
- Except insofar explicitly agreed otherwise in writing in the context of a distribution agreement, any offer of Puccini Bomboni is without any obligations, even when an acceptance period is mentioned therein. Puccini Bomboni can immediately withdraw a free offer or at least as soon as possible after the acceptance thereof by the counterparty.
- The counterparty cannot derive any rights from an offer of Puccini Bomboni that contains an apparent error or mistake.
- Any agreement, subject to the provision in paragraph 1, is concluded by offer and acceptance. If the acceptance of the counterparty differs from the offer of Puccini Bomboni, the agreement is not concluded conform these deviating acceptance, unless Puccini Bomboni indicates otherwise. Quotations of Puccini Bomboni must be accepted in writing within the validity period thereof that might be mentioned in the quotation, with the understanding that Puccini Bomboni reserves the right to only conclude the agreement based on the counterparty signing the relevant quotation.
- An order placed through the webshop, subject to the provision in paragraph 1, is confirmed to the counterparty as soon as possible by an e-mail from Puccini Bomboni.
- A combined quotation never obliges Puccini Bomboni to fulfil a part of the offer against a corresponding part of the specified price.
- If the counterparty concludes the agreement on behalf of another natural person or legal entity, it declares, by concluding the agreement, to be authorised thereto. In addition to this (legal) person, the counterparty is jointly and severally liable for the compliance with the obligations from this agreement.
ARTICLE 4. | TOLERANCES
The characteristics of the products to be delivered, mentioned and/or displayed by Puccini Bomboni in the offer, webshop or otherwise, can slightly differ from what is actually delivered. Slight deviations include all deviations in the characteristics of the products which the counterparty should reasonably accept, such as slight deviations in flavours, sizes and weights. The presence of slight deviations does not give the counterparty any reason to complain, no reason to suspend its obligations from the agreement, to completely or partially dissolve the agreement, or to claim damage compensation or any other compensation. Puccini Bomboni in particular reserves the right to replace bonbons offered in bulk packages by similar bonbons with the same quality, though with a different flavour if and insofar the agreed flavour is unexpectedly not available.
ARTICLE 5. | CUSTOMISED ORDERS
- In case an order is to a certain degree composed or produced conform specifications of the counterparty (hereinafter: customised orders), the counterparty guarantees that it will promptly and completely provide all data that is reasonably relevant for the performance of the agreement to Puccini Bomboni, in the way prescribed by Puccini Bomboni.
- Customised orders are based on specifications agreed between parties in writing. The counterparty guarantees the correctness of the specifications it has provided for the performance of the customised orders. Puccini Bomboni is never liable for any damage caused by using incorrect or incomplete data, provided by the counterparty, for the composition or production of customised orders.
ARTICLE 6. | DELIVERY OF PRODUCTS
- Webshop orders are delivered by delivery thereof at the delivery address specified by the counterparty, unless it is explicitly agreed with the order that the products will be collection from the location of Puccini Bomboni.
- For non-webshop orders it applies, unless parties have explicitly agreed otherwise in writing, that the delivery takes place in the physical store of Puccini Bomboni when the agreement is concluded, delivery to non-consumers takes place Ex Works (EXW) conform the most recent version of the Incoterms. If another delivery condition than Ex Works has been explicitly agreed in writing, for example Carriage Paid To (CPT) or Delivered At Place (DAP), this delivery condition must also be explained conform the most recent version of the Incoterms.
- If the delivery, by order of the counterparty, directly takes place by delivery of the products to third parties, it always takes place for the account and risk of the counterparty.
- If the ordered chocolate products are transported for the risk of the counterparty, the counterparty must observe that chocolate must not be exposed to temperatures higher than 16 degrees Celsius and not lower than 2 degrees Celsius, if the counterparty fails to do so, Puccini Bomboni will not accept any liability for the damage arising thereof.
- Chocolate products that have been delivered or transported chilled, must be brought back to room temperature before consumption, by letting these acclimatise at room temperature in closed packaging and outer boxes for 24 to 48 hours.
- Puccini Bomboni reserves the right to deliver orders in parts. In that case the cooling-off period of the consumer in connection with the right of dissolution, as meant in article 9, will only start at the moment that the last part delivery of the order has been received by or on behalf of the consumer.
- With exceedance of the agreed delivery period the counterparty, without prejudice to the provisions regarding failure of Puccini Bomboni in article 7, never has the right to refuse to accept the products and/or to pay the amounts it owes to Puccini Bomboni under the agreement.
- If the products cannot be delivered due to a circumstance for which the counterparty is responsible, Puccini Bomboni has the right to store the products for the account and risk of the counterparty, without prejudice to the obligation of the counterparty to pay the amounts it owes to Puccini Bomboni under the agreement. The costs to be made related to the non-acceptance by the counterparty as meant here, like additional delivery costs and such, are also for the account of the counterparty. The provision aforementioned in this paragraph does not affect the fact that the risk of loss and damage of the products only transfers to the consumer when the products have been received by or on behalf of the consumer.
- In the case that the counterparty refuses to buy the ordered good or otherwise is negligence to accept the products, the counterparty will still proceed to accept the goods within a reasonable period stipulated by Puccini Bomboni, if the counterparty fails to do so, Puccini Bomboni has the right the dissolve the agreement, without prejudice to the obligation of the counterparty to pay the agreed price and additional costs as meant in the previous paragraph.
ARTICLE 7. | DELIVERY TERMS
- Puccini Bomboni does its utmost to meet the delivery terms whereto is has committed itself towards the counterparty, however these terms are never deadlines. Puccini Bomboni’s default will not take effect until the other party has given Puccini Bomboni a written notice of default, which notice of default states a reasonable period for the compliance, and Puccini Bomboni is still in default after this period has expired.
- If Puccini Bomboni for the performance of the agreement depends on data to be provided by the counterparty, the delivery terms will only start after Puccini Bomboni has received this data.
- Is case of default by Puccini Bomboni as meant in paragraph 1, the counterparty has the right to dissolve the agreement, without the counterparty being entitled to any further damage compensation than restitution and discharge of the agreed price in proportion to the non-delivered part of the agreement as a result of the default.
ARTICLE 8. | EXAMINATION, RECLAMATIONS AND CONFORMITY
- Puccini Bomboni guarantees that the products, at the time of the delivery thereof, comply with the agreement and therefore have these characteristics that are required for a normal use thereof. Such applies till the shelf life date has expired and the mentioned and/or usual storage conditions have been observed. Subject to the provisions of paragraph 4, any further form of guarantee is excluded.
- When the products are delivered, the counterparty must examine (have examined) the products if the nature and the quantity thereof comply with the agreement. If, in the opinion of the counterparty or transporter appointed by the counterparty, the nature and/or quantity of the products does/do not comply with the agreement, it must be immediately reported to Puccini Bomboni and receipt must be omitted, or, if there is a slight deviation, a written reservation must be made with the receipt. However, if the products are sold in the presence of both the counterparty as Puccini Bomboni, the nature and the quantity of the products are considered to comply with the agreement if the counterparty has taken the products.
- If the counterparty does not complain on time or not conform the provision in the previous paragraph, not one single obligation for Puccini Bomboni arises from such a complaint of the counterparty.
- Any guarantee provided by Puccini Bomboni, manufacturer or importer does not affect the mandatory legal rights and claims that consumers can make against Puccini Bomboni.
- The provisions in paragraph 2 and 3 do not affect the mandatory legal complaint period for consumers, as regulated in article 7:23 of the Civil Code.
- Even when the counterparty complains on time and conform paragraph 2, the obligation of the counterparty to pay on time still exists, without prejudice to the mandatory legal rights of consumers in this respect.
- Any claim of the counterparty related to the statement that the products do not comply with the agreement, expires if the defects of the products are the result of an external cause or another circumstance for which Puccini Bomboni is not responsible. This includes, but it not limited to: defects caused by damage, incorrect or improper handling or storage and transport by or on behalf of the counterparty in breach with the provision in article 6.4.
- Products, subject to the provision in article 9, can never be returned without the prior written permission of Puccini Bomboni.
ARTICLE 9. | RIGHT OF DISSOLUTION WITH REMOTE AGREEMENTS
- Subject to the provisions in the rest of this article and especially the next article, the consumer can completely or partially dissolve a so-called “remote agreement” up to 14 days after receipt of the products, without specifying reasons. A “remote agreement” means: the agreement as meant in article 1.4 that is concluded between Puccini Bomboni and a consumer in the context of an organised system for remote sales without Puccini Bomboni and the consumer being personally present at the same time and whereby, up to the moment of concluding the agreement, only one or more tools for remote communication are used, as in the case of a consumer purchase made through the webshop. So, an agreement is not a remote agreement if Puccini Bomboni has not used an organised system for remote sales for this, for example in case the consumer has looked up the contact details of Puccini Bomboni on the internet or in a telephone directory and places an order by telephone.
- The consumer does not have to right to dissolve in case of:
- the delivery of products that perish quickly or have a limited shelf life, including at least all chocolate products;
- the delivery of products that are not suitable to be sent back because of health protection or hygiene reasons and of which the seal has been broken after the delivery;
- the delivery of products produced conform the specifications of the consumer that are not pre-fabricated and that are produced based on an individual choice or decision of the consumer, or that are clearly intended for a specific person;
- a consumer purchase for which the right of dissolution is excluded or not applicable pursuant to Section 6.5.2B of the Civil Code.
- The consumer can dissolve the remote agreement by submitting a request thereto to Puccini Bomboni by e-mail or by using the model form for withdrawal provided by Puccini Bomboni. As soon as Puccini Bomboni has been informed about the intention of the consumer to dissolve the remote agreement and if the conditions in this article have been met, Puccini Bomboni will confirm the dissolution of the remote agreement per e-mail.
- During the period as meant in article 1 the consumer must handle the products to be returned and the packaging thereof with care. The consumer may only use and examine the products to a degree that is necessary to assess the nature and characteristics of the products. The principle hereby is that the consumer may only use and examine the products as he would be allowed in a physical shop.
- If the consumer uses the right of dissolution, he will return the products to Puccini Bomboni, undamaged, including all supplied accessories and in the original condition and packaging.
- The consumer is liable for the depreciation of the products as a result of a way of handling the products that goes beyond what is allowed pursuant to paragraph 4. Puccini Bomboni has the right the charge this depreciation to the consumer, whether or not be settling this with any payments already received from the consumer.
- The return of the products must take place within 14 days after the consumer has dissolved the remote agreement conform the provision in paragraph 3.
- If the consumer uses the right of dissolution, the costs for returning the products are for the account of the consumer.
- Puccini Bomboni will refund any payments already received from the consumers with respect to the part of the order that is returned, minus the possible depreciation, as soon as possible, but at least within 14 days after the dissolution of the remote agreement, to the consumer, provided Puccini Bomboni has received the returned products or the consumer can proof that the products have actually been sent back. The refund is done in the same way as the consumer made the payment.
- If the right of dissolution is only applied on a part of the order, any delivery costs initially paid by the consumer will not qualify for restitution. Furthermore, Puccini Bomboni is not obliged to refund the additional costs if the consumer with the order has explicitly chosen for another delivery method than the cheapest standard delivery method offered by Puccini Bomboni.
ARTICLE 10. | SPECIAL OBLIGATIONS FOR RESELLERS
- Puccini Bomboni guarantees the counterparty the consistent, agreed quality of the delivered products. The counterparty who acts as reseller of the products is responsible for the compliance with its legal obligations towards its end customers. Without prejudice to the aforementioned in this paragraph, reselling to customers by the counterparty is done for the own account and risk of the counterparty.
- Any collaboration between the reseller and Puccini Bomboni is never exclusive, unless explicitly agreed otherwise in writing, for example through a distribution agreement; Puccini Bomboni is authorised to appoint several resellers without any geographical restrictions.
- Puccini Bomboni grants the reseller the right to use the brand names of Puccini Bomboni, its logos and any provided promotion material, though only insofar and for as long as this is reasonably deemed allowed in the context of the resell activities of the counterparty and with consideration of all possible instructions of Puccini Bomboni with respect to the use thereof. To use the brand names of Puccini Bomboni, its logos and any provided promotion material, other than meant in the previous sentence, the prior written permission of Puccini Bomboni is required.
- The reseller is obliged to use the brand names and logos used by Puccini Bomboni with respect to the resale of the products. The counterparty is not allowed to remove or adjust the brand names and/or logos on the products, or to apply own brand logos on the products or packaging thereof.
ARTICLE 11. | FORCE MAJEURE
- Puccini Bomboni is not obliged to comply with any obligation from the agreement if and for as long as it is prevented thereto by a circumstance for which it cannot be held responsible pursuant to the law, a legal transaction or commonly accepted opinions.
- If the force majeure situation permanently prevents the compliance with the agreement, parties have the right to dissolve the agreement with immediate effect.
- If Puccini Bomboni, at the commencement of the force majeure situation, has already met a part of its obligations, or can still partially meet its obligations, it has the right to claim compensation for the already delivered part, respectively the part of the agreement still to be delivered.
- Damage as a result of force majeure, without prejudice to application of the previous paragraph, never qualifies for compensation.
ARTICLE 12. | SUSPENSION AND DISSOLUTION
- Puccini Bomboni is authorised, if the circumstances of the case reasonably justify this, to suspend the performance of the agreement or to completely or partially dissolve the agreement with immediate effect, if and insofar the counterparty has not, not timely or not fully complied with its obligations from the agreement, or Puccini Bomboni has become aware of circumstances after the agreement has been concluded, that provide a good reason to fear that the counterparty will not comply with its obligations. If the compliance with the obligations of the counterparty in respect of which it fails or threatens to fail, is not permanently impossible, the authority to dissolve only occurs after the counterparty has been given a written notice of default, which notice of default states a reasonable period in which the counterparty can (still) comply with its obligations and compliance is still awaited after this period has expired.
- If the counterparty liquidates its company or transfers it to a third party, is declared bankrupt, has requested (temporary) receivership, is subject to a legal debt repayment scheme, has any of its goods seized, as well as in cases whereby the counterparty cannot freely dispose of its capital, Puccini Bomboni has the right to dissolve the agreement with immediate effect, unless the counterparty has already set sufficient security for the amounts it owes to Puccini Bomboni under the agreement.
- The counterparty is obliged to compensate the damage that Puccini Bomboni suffers as a result of the suspension or dissolution of the agreement.
- If Puccini Bomboni dissolves the agreement based on this article, all possible claims that Puccini Bomboni still has on the counterparty, are immediately payable.
ARTICLE 13. | PRICES, COSTS AND PAYMENTS
- Unless explicitly stated otherwise by Puccini Bomboni, all prices mentioned by Puccini Bomboni are excluding vat and other legal charges and excluding any transport/delivery costs, with the understanding that, before an agreement is concluded, the total price is mentioned, including vat and any transport/delivery costs.
- Unless explicitly agreed otherwise, Puccini Bomboni has the right to demand full or partial prepayment of the agreed price and costs, with the understanding that in case of a consumer purchase Puccini Bomboni will not oblige the consumer to pay more than 50% of the purchase price in advance. Payment upon delivery does not qualify as prepayment.
- As long as the counterparty fails towards Puccini Bomboni to comply with any of its payment obligations, Puccini Bomboni is not obliged to (further) perform the agreement.
- Payment must be made conform (a) payment method(s) designated thereto by Puccini Bomboni, within the period stipulated by Puccini Bomboni or indicated on the invoice.
- In case of late payment, the counterparty is legally in default. From the day that the counterparty is in default, the counterparty owes 2% interest per month on the outstanding amount, whereby a part of a month is considered as a full month. Contrary to the previous sentence, the legal interest will apply instead of the contractual interest that is meant there, if the counterparty acts as a consumer.
- All reasonable costs, such as legal, extrajudicial and execution costs, made to obtain the amounts owed to Puccini Bomboni by the counterparty, are for the account of the counterparty.
- In case of payment default by the consumer, Puccini Bomboni will therefore not charge additional costs before the consumer has been summoned in vain to make a full payment within a period of at least 14 days.
ARTICLE 14. | LIABILITY AND INDEMNIFICATION
- Puccini Bomboni is never liable for damage related to or cause by incorrect or incomplete data provided by the counterparty, another failure in the compliance with the obligations of the counterparty that arise from the law or the agreement or any other circumstance for which Puccini Bomboni cannot be held responsible.
- The counterparty or end user is responsible for the compliance with the storage conditions mentioned by Puccini Bomboni or that are usual for the type of product. Puccini Bomboni is never liable for damage as a result of not observing the storage conditions, nor if the damage is caused because the products have been consumed after the shelf life date.
- Puccini Bomboni is never liable for indirect damage, including suffered loss, loss of profit and damage as a result of business stagnation.
- If Puccini Bomboni, despite the provisions in these general terms and conditions, is liable for any damage, Puccini Bomboni always has the right to repair this damage. The counterparty must give Puccini Bomboni the opportunity to do so, if the counterparty fails to do this, any liability of Puccini Bomboni in this respect will expire.
- The liability of Puccini Bomboni is limited to the amount of the invoice value of the agreement, at least to that part of the agreement to which the liability of Puccini Bomboni is related.
- The expiry period of all legal claims and defences towards Puccini Bomboni is one year. Contrary to the previous sentence claims and defences to which consumers are entitled, that are based on facts that would justify the statement that the consumer purchase does not comply with the agreement, will expire after two years.
- The counterparty indemnifies Puccini Bomboni of any claims of third parties, that suffer damage in connection with the performance of the agreement and of which the cause can be attributed to (an)other(s) than Puccini Bomboni.
- In case of a consumer purchase the limitations in this article do not go further than is allowed pursuant to article 7:24 paragraph 2 of the Civil Code.
- The liability limitations from these general terms and conditions do not apply if the damage is the result of intent or gross negligence of Puccini Bomboni.
ARTICLE 15. | RETENTION OF PROPERTY
- All products remain the property of Puccini Bomboni till the counterparty has complied with all its payment obligations towards Puccini Bomboni with respect to the relevant agreement.
- The counterparty is prohibited to sell, pledge or otherwise encumber the products that are subject to retention of property.
- The counterparty is obliged to store the products delivered under retention of property with the necessary care and as recognisable property of Puccini Bomboni.
- If third parties seize products that are subject to retention of property, or want to establish or claim any rights thereon, the counterparty is obliged to inform Puccini Bomboni about this as soon as possible.
- The counterparty gives unconditional permission to Puccini Bomboni or third parties appointed by Puccini Bomboni, to access the places where the products are kept that are subject to retention of property. The counterparty must, at the first request, provide all information to Puccini Bomboni in order to exercise its property rights, such on penalty of an immediately payable fine of € 500.- per day that the counterparty fails to do so and without Puccini Bomboni having to give a notice of default to the counterparty. All reasonable costs related to exercising the property rights of Puccini Bomboni are for the account of the counterparty.
ARTICLE 16. | INTELLECTUAL PROPERTY
- Insofar these rights do not legally belong to third parties, Puccini Bomboni reserves all intellectual property rights regarding the (composition and recipe of the) products, as well as the brand names it uses and the texts, image material and other content of whatever nature that are displayed in the webshop. The counterparty is prohibited to copy (have copied), imitate (have imitated), reproduce (have reproduced) or to publish (have published) or distribute (have distributed) these goods or to use these in any other way than arises from the nature and scope of the agreement, the possible resell activities of the counterparty or the normal use of the website.
- If the counterparty breaches the provisions in the previous paragraph, Puccini Bomboni has the right to claim immediate reversal of the breach, as well as damage compensation to be further determined based on the nature and scope of the breach.
ARTICLE 17. | GENERAL COMPLAINT POLICY
- Complaints regarding the performance of the agreement, without prejudice to the provisions in article 8, must be submitted to Puccini Bomboni in writing, within able time after the counterparty has completely and clearly described the reasons that gave rise to the complaint.
- Complaints submitted to Puccini Bomboni will be answered within a period of 14 days after receipt thereof. If a complaint requires more processing time, a response is sent by way of confirmation of receipt, within a period of 14 days, which includes an indication when the counterparty can expect a more detailed reply.
- If the complaint, in the context of a remote agreement as meant in article 9.1, cannot be solved in mutual consultation, the consumer can submit the dispute to the dispute committee via the ODR platform (europa.eu/consumers/odr/).
ARTICLE 18. | FINAL PROVISIONS
- Any agreement and all legal relationships between parties arising thereof are exclusively subject to Dutch law.
- Parties will not appeal to the court before they have made an optimal effort to settle the dispute in mutual consultation.
- Insofar the law does not stipulate otherwise in the given circumstances of the case, only the authorised court in the district of the place of establishment of Puccini Bomboni is appointed to take notice of any legal disputes.