Terms and Conditions

Last updated: 28-06-2023

Article 1: Definitions

  1. In these terms and conditions, Viv! Christmas is referred to as the seller.
  2. The counterparty of the seller is referred to as the buyer in these terms and conditions.
  3. The parties are the seller and the buyer together.
  4. The agreement refers to the purchase agreement between the parties.

Article 2: Applicability of terms and conditions

  1. These terms and conditions apply to all quotations, offers, agreements, and deliveries of services or goods by or on behalf of the seller.
  2. Deviation from these terms and conditions is only possible if explicitly and in writing agreed upon by the parties.

Article 3: Payment

  1. The full purchase price is always paid immediately in the store. In the case of reservations, a deposit may be required in some cases. In that case, the buyer will receive proof of the reservation and the advance payment.
  2. If the buyer fails to pay on time, they are in default. If the buyer remains in default, the seller is entitled to suspend their obligations until the buyer has fulfilled their payment obligation.
  3. If the buyer remains in default, the seller will proceed with collection. The costs associated with this collection will be borne by the buyer. These collection costs are calculated based on the Extrajudicial Collection Costs Decree.
  4. In the event of liquidation, bankruptcy, attachment, or suspension of payment of the buyer, the seller's claims on the buyer become immediately due and payable.
  5. If the buyer refuses to cooperate with the execution of the order by the seller, they are still obliged to pay the agreed price to the seller.

Article 4: Offers, quotations, and prices

  1. Offers are non-binding unless a term of acceptance is stated in the offer. If the offer is not accepted within that specified period, the offer lapses.
  2. Delivery times in quotations are indicative and do not entitle the buyer to dissolution or compensation, unless explicitly and in writing agreed upon by the parties.
  3. Offers and quotations do not automatically apply to subsequent orders. The parties must expressly and in writing agree upon this.
  4. The price stated on offers, quotations, and invoices includes the purchase price including the applicable VAT and any other government levies.

Article 5: Right of withdrawal

  1. The consumer has the right to dissolve the agreement without stating reasons (right of withdrawal) within fourteen days of receiving the order. The period starts running from the moment the consumer has received the (entire) order.
  2. There is no right of withdrawal when the products have been customized according to the buyer's specifications or are perishable.
  3. The consumer may use a withdrawal form provided by the seller. The seller is obliged to provide this form to the buyer immediately upon request.
  4. During the reflection period, the consumer shall handle the product and packaging with care. They shall only unpack or use the product to the extent necessary to assess whether they wish to keep the product. If they exercise their right of withdrawal, they shall return the unused and undamaged product with all supplied accessories and, if reasonably possible, in the original shipping packaging to the seller, following the reasonable and clear instructions provided by the seller.

Article 6: Amendment of the agreement

  1. If it appears during the execution of the agreement that it is necessary to change or supplement the work to be performed for proper execution of the assignment, the parties shall timely and mutually adjust the agreement accordingly.
  2. If the parties agree to amend or supplement the agreement, the completion time of the execution may be affected. The seller shall inform the buyer of this as soon as possible.
  3. If the amendment or supplement to the agreement has financial and/or qualitative consequences, the seller shall inform the buyer about this in writing in advance.
  4. If the parties have agreed on a fixed price, the seller shall indicate to what extent the amendment or supplement to the agreement results in an exceeding of this price.
  5. Contrary to the provisions in the third paragraph of this article, the seller cannot charge any additional costs if the amendment or supplement is due to circumstances that can be attributed to them.

Article 7: Delivery and transfer of risk

  1. Once the purchased item is received by the buyer, the risk transfers from the seller to the buyer.

Article 8: Inspection and complaints

  1. The buyer is obligated to inspect the delivered goods at the time of (delivery), or in any case, as soon as possible, to verify whether the quality and quantity of the delivered goods correspond to what the parties have agreed upon, or that the quality and quantity meet the requirements that apply in the normal course of trade.
  2. Complaints regarding damage, shortages, or loss of delivered goods must be submitted to the seller in writing within 10 working days from the day of delivery of the goods by the buyer.
  3. If the complaint is found to be valid within the specified period, the seller has the right to repair, replace, or refrain from delivery and issue a credit note to the buyer for that part of the purchase price.
  4. Minor and/or customary deviations and differences in quality, quantity, size, or finish cannot be objected to by the buyer.
  5. Complaints regarding a specific product do not affect other products or components belonging to the same agreement.
  6. No further complaints will be accepted after the goods have been processed by the buyer.

Article 9: Samples and models

  1. If a sample or model has been shown or provided to the buyer, it is presumed to have been provided for illustrative purposes only, without the delivered item needing to correspond to it. This is different if the parties have explicitly agreed that the delivered item will correspond to it.
  2. In agreements regarding immovable property, the mention of the surface area or other dimensions and indications is also presumed to be intended for illustrative purposes only, without the delivered item needing to correspond to it.

Article 10: Delivery

  1. Delivery takes place "ex works/store/warehouse." This means that all costs are borne by the buyer.
  2. The buyer is obligated to accept the goods at the moment the seller delivers or has them delivered, or at the moment when the goods are made available to the buyer according to the agreement.
  3. If the buyer refuses acceptance or is negligent in providing information or instructions necessary for the delivery, the seller is entitled to store the goods at the expense and risk of the buyer.
  4. If the goods are delivered, the seller is entitled to charge any delivery costs.
  5. If the seller requires data from the buyer for the execution of the agreement, the delivery time commences after the buyer has made this information available to the seller.
  6. A delivery period specified by the seller is indicative and never a strict deadline. In the event of exceeding the deadline, the buyer must notify the seller in writing to be in default.
  7. The seller is entitled to deliver the goods in installments, unless otherwise agreed upon in writing by the parties or unless partial delivery has no independent value. In the case of partial delivery, the seller is entitled to invoice these parts separately.

Article 11: Force majeure

  1. If the seller is unable, delayed, or unable to properly fulfill their obligations under the agreement due to force majeure, they are not liable for any damages suffered by the buyer.
  2. Force majeure includes any circumstance that the seller could not reasonably have taken into account at the time of entering into the agreement and as a result of which the normal performance of the agreement cannot be reasonably expected by the buyer, such as illness, war or the threat of war, civil war and rioting, sabotage, terrorism, power outage, flooding, earthquake, fire, occupation of business premises, strikes, lockouts, altered government measures, transportation difficulties, and other disruptions in the seller's business.
  3. Furthermore, the parties consider force majeure to include the circumstance that suppliers on whom the seller depends for the execution of the agreement fail to fulfill their contractual obligations towards the seller, unless this is attributable to the seller.
  4. If a situation as described above arises, preventing the seller from fulfilling their obligations towards the buyer, those obligations will be suspended until the seller is able to fulfill them. If the situation referred to in the previous sentence lasts for 30 calendar days, the parties have the right to terminate the agreement in writing, in whole or in part.
  5. If the force majeure lasts longer than three months, the buyer has the right to terminate the agreement immediately. Termination can only be made by registered letter.

Article 12: Assignment of rights

  1. Rights of a party arising from this agreement cannot be transferred without the prior written consent of the other party. This provision applies as a provision with proprietary effect as referred to in Article 3:83, paragraph 2, of the Dutch Civil Code.

Article 13: Retention of title and right of retention

  1. The items present with the seller and the delivered goods and components remain the property of the seller until the buyer has paid the entire agreed price. Until then, the seller can invoke their retention of title and reclaim the goods.
  2. If the agreed advance payments are not or not timely paid, the seller has the right to suspend the work until the agreed part has been paid. This constitutes default by the debtor. In this case, delayed delivery cannot be attributed to the seller.
  3. The seller is not authorized to pledge or otherwise encumber the items falling under their retention of title.
  4. The seller undertakes to insure the goods delivered to the buyer under retention of title and keep them insured against fire, explosion, water damage, theft, and to show the policy upon the buyer's first request.
  5. If goods have not yet been delivered, but the agreed advance payment or price has not been paid in accordance with the agreement, the seller has the right of retention. The goods will not be delivered until the buyer has fully paid in accordance with the agreement.
  6. In the event of liquidation, insolvency, or suspension of payment of the buyer, the buyer's obligations become immediately due and payable.

Article 14: Liability

  1. Any liability for damage arising from or related to the execution of an agreement is always limited to the amount that will be paid out by the liability insurance policy(ies) concluded in that particular case. This amount shall be increased by the amount of the policy's deductible as stated in the relevant policy.
  2. The liability of the seller for damage resulting from intent or willful recklessness on the part of the seller or their managerial subordinates is not excluded.

Article 15: Duty to complain

  1. The buyer is obliged to report complaints about the work performed immediately to the seller. The complaint shall contain as detailed a description as possible of the shortcoming, enabling the seller to respond adequately.
  2. If a complaint is found to be valid, the seller is obliged to repair the goods and possibly replace them.

Article 16: Warranties

  1. If warranties are included in the agreement, the following applies. The seller guarantees that the sold item complies with the agreement, will function without defects, and is suitable for the use that the buyer intends. This guarantee applies for a period of two calendar years after the buyer has put the item into actual use.
  2. The mentioned guarantee aims to establish a risk allocation between the seller and the buyer in such a way that the consequences of a breach of warranty always fully fall to the account and risk of the seller, and the seller can never rely on Article 6:75 of the Dutch Civil Code regarding a breach of warranty, even if the breach was known or could have been known to the buyer through examination.
  3. The guarantee mentioned does not apply if the defect has arisen as a result of improper or unauthorized use or if the buyer or third parties have made or attempted to make changes to the item without permission or have used the purchased item for purposes for which it was not intended.
  4. If the warranty provided by the seller relates to an item produced by a third party, the warranty is limited to the warranty provided by the manufacturer of that item.

Article 17: Applicable law

  1. Dutch law exclusively applies to this agreement between the seller and the buyer. The Dutch court has jurisdiction.
  2. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
  3. If one or more provisions of these general terms and conditions are deemed unreasonably onerous in a legal procedure, the other provisions shall remain in full force and effect.

Article 18: Choice of forum

  1. All disputes arising from this agreement that cannot be settled amicably by the parties shall be exclusively submitted to the competent court.