Terms and Conditions
Article 1. Scope of Application
1. These general terms and conditions apply to all negotiations and agreements entered into by FUNNIES (whether or not through an authorized representative) with a counterparty under which FUNNIES delivers or will deliver goods to said counterparty. Deviations from these terms and conditions may only be agreed upon in writing.
2. FUNNIES expressly rejects the applicability of any other terms and conditions. Accordingly, FUNNIES does not accept any reference by the other party to the applicability of its own (general) terms and conditions, unless FUNNIES has expressly indicated in writing that such other terms and conditions shall apply. The applicability of such other terms and conditions shall then apply exclusively to the agreement in question.
3. A counterparty that has once entered into a contract based on FUNNIES’ (present) general terms and conditions is deemed to have tacitly agreed to the applicability of these general terms and conditions with respect to any agreements subsequently entered into with FUNNIES.
4. In the event of a conflict, specifically agreed-upon obligations shall take precedence over these general terms and conditions.
5. If any provision of these general terms and conditions is void or is voided, the remaining provisions of these terms and conditions shall remain in full force and effect.
6. The rights and obligations arising from agreements between FUNNIES and the other party may not be transferred by the other party to third parties, unless FUNNIES has given its written consent.
Article 2. Formation of the Agreement
1. All offers made by or on behalf of FUNNIES, including all details and price quotations contained therein, are at all times entirely non-binding and valid for 14 calendar days, unless FUNNIES has expressly stated otherwise in writing. The offers are based on the information provided by the other party at the time of the request. Prices, dimensions, quantities, weights, sizes, and similar information displayed on the FUNNIES website are for informational purposes only and are in no way binding on FUNNIES.
2. An agreement is concluded only after FUNNIES has accepted or confirmed the order placed with it in writing, or upon FUNNIES’ commencement of actual performance.
3. FUNNIES’ order confirmation is deemed to accurately and completely reflect the agreement, unless the other party expressly notifies FUNNIES otherwise in writing within three days of receiving the order confirmation.
4. Changes to the agreement will only take effect if they have been agreed upon in writing or confirmed in writing by FUNNIES. After the commencement of the assignment, changes—specified in writing and in clear terms and/or descriptions by the other party—will only be implemented by FUNNIES if they have been confirmed in writing by FUNNIES. The originally agreed-upon delivery date shall lapse as a result of the change, unless the parties agree otherwise in this regard.
Article 3. Performance of the Agreement
1. The other party hereby grants FUNNIES permission, effective immediately and for the future, to perform the agreement in parts and to invoice the other party separately for each partial performance. Each partial performance shall be deemed a separate performance within the meaning of these terms and conditions.
2. FUNNIES is authorized to delegate the conclusion and performance of the agreement, in whole or in part, to (authorized) third parties who are authorized to enter into agreements with the other party on behalf of FUNNIES.
3. Agreements concluded through the mediation of representatives or agents of FUNNIES shall not be binding on FUNNIES until FUNNIES has confirmed the agreements in writing or until FUNNIES has proceeded with their performance.
4. The other party shall ensure that all information required by FUNNIES to adequately perform the assigned task, in FUNNIES’s judgment, or information regarding specific requests, is provided to FUNNIES in the desired format and in a timely manner. If FUNNIES decides, for reasons of its own, that the other party’s specific requirements will not be fulfilled, FUNNIES shall notify the other party accordingly. The other party may not hold FUNNIES liable for this, and FUNNIES is under no obligation whatsoever. If the information required for the performance of the agreement is not provided to FUNNIES in a timely manner, FUNNIES has the right to suspend performance of the agreement and/or to charge the other party for any additional costs resulting from the delay at the usual rates.
5. The work to be performed by FUNNIES on behalf of the other party shall at all times be regarded as an obligation to use best efforts and therefore not as an obligation to achieve a specific result.
Article 4. Delivery
1. Delivery times specified by FUNNIES are at all times entirely non-binding and shall never be considered strict deadlines, even though FUNNIES will do everything in its power to ensure delivery within the agreed timeframe. Furthermore, these times do not take effect until FUNNIES has confirmed the order.
2. If the delivery deadline is exceeded, the other party must give FUNNIES written notice of default, granting FUNNIES a reasonable period of at least 21 calendar days during which it may still fulfill the agreed-upon obligations.
3. Exceeding an agreed-upon delivery period shall in no event entitle the other party to any compensation, unless there is intent or gross negligence on the part of FUNNIES.
4. The specified or agreed-upon delivery period shall in any case be automatically extended by the period(s) during which:
– there is a delay in manufacturing and/or shipping, or any other circumstance that temporarily prevents performance, regardless of whether this is attributable to FUNNIES;
– the other party fails to fulfill one or more obligations toward FUNNIES or there is reasonable concern that it will fail to do so;
– the other party fails to enable FUNNIES to perform the agreement.
5. A postponement of a delivery deadline at the request of the other party may only take place with the express written consent of FUNNIES, on the condition that the costs and losses associated with the postponement remain entirely at the expense and risk of the other party. In that case, the cost estimate to be provided by FUNNIES to the other party is binding on the other party.
6. Upon delivery of the goods by FUNNIES to the other party or to a third party designated by the other party, the goods become the risk of the other party. From that moment on, the other party owes the purchase price to FUNNIES, regardless of any loss or depreciation of the goods resulting from a cause not attributable to FUNNIES.
7. If the other party designates a carrier and FUNNIES did not offer that carrier as an option, the risk passes to the other party upon the carrier’s receipt of the goods.
8. If the other party fails to cooperate with the delivery of the goods by FUNNIES, the risk shall pass to the other party at the moment the other party defaults on its obligation to cooperate. If the goods in question are stored by FUNNIES, this is done at the other party’s expense and risk. In such a case, the storage costs are borne by the other party.
9. In the event of the provisions set forth in the preceding paragraph, FUNNIES is entitled to terminate the agreement if the other party’s failure to cooperate gives rise to the fear that the other party will not pay.
Article 5. Force Majeure
1. Force majeure, however it may arise, entitles FUNNIES, at its discretion, either to exceed the delivery deadline or to suspend the agreement entered into with the other party or to terminate it in whole or in part, without FUNNIES being obligated to pay any compensation to the other party in this regard and without the need for judicial intervention.
2. Should the force majeure situation persist for longer than three months, both parties are entitled to terminate the agreement by means of a declaration to that effect, in which case FUNNIES shall not be liable to pay any compensation to the other party. The other party remains obligated to pay for the portion of the agreement that has already been performed.
Article 6. Complaints and Warranties
1. FUNNIES warrants that the goods it delivers comply with the agreement, with the characteristics that the other party may reasonably expect based on normal use of the goods, and with the applicable legal requirements and/or government regulations in effect at the time the agreement is concluded.
2. The other party is expected to inspect the delivered goods for soundness and to notify FUNNIES as soon as possible of any defect found in the product. If the other party was aware of the defect in the delivered goods at the time the agreement was concluded, or if the other party could reasonably have been aware of it, the other party may not invoke non-conformity.
3. Any complaints regarding the performance of the agreement must be submitted by the other party to FUNNIES in a complete and clearly described manner no later than eight days after the date on which the complaint arose; failing which, FUNNIES is no longer obligated to address the complaint, and the other party is deemed to have approved the performance of the agreement. The aforementioned period begins at the moment the other party could reasonably have become aware of the defect. In the absence of timely notification, the other party’s rights against FUNNIES in the event of non-conformity shall lapse.
4. If FUNNIES deems the complaint to be justified, FUNNIES shall, at its discretion, either replace or repair the defective goods (or parts thereof) free of charge or grant a price reduction.
5. The processing of a complaint does not suspend the other party’s obligation to pay.
6. FUNNIES guarantees that all goods delivered by it are suitable for their intended purpose and are free from material and manufacturing defects.
7. Subject to the provisions elsewhere in these terms and conditions, FUNNIES guarantees the soundness and quality of the goods it delivers for a period of 12 months starting from the time of delivery. If the delivered goods do not meet the requirements normally expected in the course of business, FUNNIES will, at its own discretion, repair the resulting defects in the delivered goods free of charge, replace them, or reimburse the client.
8. Any warranty obligation on the part of FUNNIES shall lapse:
– if the delivered goods are used improperly by the other party, used for a purpose other than that for which they are intended, handled incorrectly, or subjected to excessive strain.
– if the delivered goods exhibit one or more imperfections or deviations that fall within a reasonable tolerance;
– the damage was caused because the other party acted in violation of FUNNIES’ instructions, guidelines, and advice;
– the other party has failed to fulfill its obligations toward FUNNIES (both financial and otherwise).
– If repairs or other work have been performed on the delivered goods by third parties without FUNNIES’ written consent.
Article 7. Retention of Title
1. Every delivery made by FUNNIES is subject to retention of title. All goods delivered by FUNNIES to the other party therefore remain the property of FUNNIES until the other party has fulfilled all of its (payment) obligations toward FUNNIES, in the broadest sense of the term.
2. In the situation referred to in this article, FUNNIES is at all times authorized to repossess the delivered goods, which, in accordance with the preceding paragraph of this article, have remained its property. Such repossession shall constitute a termination of the agreement(s) concluded with the other party. The other party irrevocably authorizes FUNNIES, to the extent necessary, to remove the goods in question (or have them removed) from wherever they are located and to enter all premises for that purpose.
3. The other party is obligated to keep all goods delivered by FUNNIES separately and sufficiently identifiable, in order to prevent them from being mixed with other goods present.
4. Notwithstanding the provisions of the preceding paragraph, the other party is authorized, if and to the extent necessary in the course of its normal business operations, to dispose of the goods subject to retention of title. If the other party exercises this authority, it is obligated to deliver the goods subject to the retention of title to third parties only subject to FUNNIES’ retention of title. It is also obligated to grant FUNNIES, upon first request, a silent pledge on the claims it has or will have against these third parties. In the event that the other party refuses to do so, this provision shall constitute an irrevocable power of attorney granting FUNNIES the authority to establish this security interest.
Article 8. Industrial and Intellectual Property
All industrial or intellectual property rights relating to works originating from FUNNIES or developed or made available by it are and shall remain the express and exclusive property of FUNNIES, regardless of the contribution of the other party or of third parties engaged by it to their creation. The exercise of these rights is expressly and exclusively reserved to FUNNIES both during and after the performance of the agreement. The other party is not permitted to remove or alter any indication regarding intellectual property rights from the works made available by FUNNIES.
Article 9. Confidentiality
The other party shall keep confidential the existence, nature, and content of the agreement entered into with FUNNIES, as well as any other business information pertaining to FUNNIES, and shall not disclose any such information without FUNNIES’ prior written consent.
Article 10. Prices
1. All prices stated by FUNNIES in offers and/or agreements are expressed in euros and are exclusive of sales tax, unless otherwise indicated and/or agreed upon by FUNNIES. FUNNIES is entitled to pass on any change in the VAT rate to the other party.
2. All price quotations from FUNNIES and prices charged by FUNNIES are ex-warehouse prices applicable at the time of the offer or the conclusion of the agreement.
3. Value-added tax and, in general, all government levies imposed or authorized in connection with the conclusion of the agreement, its performance, and its financial settlement shall be borne by the other party.
4. For orders exceeding a specified amount, FUNNIES will not charge shipping costs (for the applicable thresholds, see www.funnies.nl).
5. FUNNIES reserves the right at all times to change its prices during the term of the agreement, subject to a thirty-day notice period. If an announced price increase also applies to a current agreement, the other party has the right to terminate the agreement in question in writing up until the effective date of the price increase, provided that the price increase exceeds the initially agreed-upon price by more than 10%.
Article 11. Security
1. FUNNIES is authorized to suspend fulfillment of its obligation to return an item belonging to the other party—which it has in its possession in connection with an order—until FUNNIES’s claim regarding that item has been paid in full, including interest and costs, unless the other party has provided sufficient security for the goods in question.
2. FUNNIES is at all times entitled to require the other party to either pay the agreed consideration(s) in advance, or to provide security deemed acceptable in banking practice (such as an irrevocable bank guarantee) for the fulfillment of all claims that FUNNIES has or may have against the other party under the agreement or for any other reason, before proceeding with the (further) performance of the agreement.
3. If the other party fails to make the required advance payment or provide the required security, FUNNIES shall be entitled to suspend performance of the agreement or to terminate the agreement in whole or in part without judicial intervention, without prejudice to its right to claim damages.
Article 12. Payment
1. If FUNNIES sends an invoice to the other party, payment of the invoice amount must be made no later than 14 days after the invoice date by bank transfer to FUNNIES’s bank account, unless the invoice specifies a different payment term. All transaction costs associated with the payment to be made by the other party shall be borne by the other party. The foregoing applies unless the parties have agreed to cash payment upon delivery, in which case the other party is obligated to pay the total amount owed to FUNNIES in full no later than the time of delivery.
2. Payment by the other party shall be made without any discount or set-off, however named, unless expressly agreed otherwise in writing.
3. If the other party fails to pay FUNNIES the amount owed to it within the specified period, the other party shall be deemed to be in default by operation of law and, therefore, without any notice, warning, or notice of default being required on the part of FUNNIES. In that case, the other party shall owe FUNNIES late payment interest of 1.5% per month from the date of default, with any partial month counting as a full month.
4. Payments made by the other party shall always be applied, first, to settle all costs and interest owed, and second, to settle the longest-outstanding invoices, even if the other party specifies that the payment relates to a later invoice.
5. FUNNIES is entitled to reimbursement of all costs associated with the collection of its claim(s) against the other party. FUNNIES is entitled to immediately transfer its claim regarding an unpaid invoice to a third party for collection. All judicial and extrajudicial costs incurred in collecting the claim shall expressly be borne in full by the other party; such extrajudicial costs shall be set at a minimum of 15% of the amount due, plus sales tax, with a minimum of €250 plus sales tax.
6. FUNNIES is entitled to suspend deliveries under concluded agreements until the other party has settled all amounts owed to FUNNIES.
7. Failure to pay any invoice amount by the due date shall result in all of FUNNIES’ claims against the other party becoming immediately due and payable (expressly including claims that would not yet be due at that time) without requiring any notice, warning, or notice of default on the part of FUNNIES.
Article 13. Cancellation
In the event of cancellation of the agreement due to causes attributable to the other party, the other party is obligated to reimburse FUNNIES for all costs incurred, as well as to compensate FUNNIES for all financial consequences resulting from the non-performance of the agreement. The compensation shall amount to at least 25% of the agreed price, without prejudice to FUNNIES’ right to demand full compensation from the other party.
Article 14. Suspension and Termination
FUNNIES has the right, without any notice of default and without judicial intervention, either to suspend performance of the agreement until further notice or to terminate the agreement in whole or in part, without being liable for any damages or warranty in the event that:
a. the other party fails to properly or timely fulfill any obligation(s) under the agreement(s) concluded with FUNNIES;
b. there is reasonable doubt as to whether the other party is capable of fulfilling its obligation(s) arising from the agreement(s) concluded with FUNNIES;
c. the other party’s bankruptcy, suspension of payments, debt restructuring, or the cessation, liquidation, or full or partial transfer of the other party’s business.
Article 15. (Product) Liability
1. Except in cases of willful misconduct or gross negligence on the part of FUNNIES or those engaged by FUNNIES, any liability for direct or indirect damages incurred in connection with or arising from the performance of the agreement, or due to defects in goods delivered by FUNNIES to the other party or third parties, is excluded, unless there is intent or willful recklessness on the part of FUNNIES. Indirect damage is expressly, but not exclusively, understood to include business interruption, lost profits, non-pecuniary damage, downtime, consequential damage (including to third parties), and other forms of financial loss, including all possible claims by third parties, in the broadest sense of the term.
2. In the event of liability on the part of FUNNIES, only those damages for which FUNNIES is insured shall be eligible for compensation.
3. The compensation for which FUNNIES is liable shall not exceed an amount equal to the invoice amount for the work performed by FUNNIES that legally and/or causally forms the basis for such liability. In the event of a recurring payment obligation on the part of the other party, such compensation shall not exceed the amount owed by the other party for (at most) one month.
4. FUNNIES shall not be liable to compensate for any damages if, at the time the damaging event occurs, the other party is in default of any obligation toward FUNNIES. The provision in the previous sentence does not apply in the event of willful misconduct or deliberate recklessness on the part of FUNNIES itself in the performance of the agreement, excluding its non-managerial subordinates.
5. FUNNIES is not liable for damage caused by inaccuracies in the advice and information it provides to the other party, except in cases of gross negligence or willful misconduct on its part.
6. Unless FUNNIES is also the manufacturer of the delivered goods, it shall never be liable for consequential damages (namely, personal injury or property damage to another product) if the non-conformity concerns a defect in the goods within the meaning of the statutory provisions on product liability. In such a case, the other party must contact the manufacturer of the goods in question.
7. If FUNNIES is also the manufacturer of the delivered goods, any liability for damage caused by a defect in the goods must be determined in accordance with the criteria set forth in Article 6:185 et seq. of the Dutch Civil Code. In such a case, the burden of proof regarding the damage, the defect in the goods, and the causal link between this defect and the damage rests with the other party.
8. In any event, the amount of compensation to be paid by FUNNIES to the other party in the event of product liability is limited to the amount for which FUNNIES is insured, provided that such compensation does not exceed the invoice amount paid by the other party for the delivered goods.
Article 16. Waiver of Rights
The right of the other party to bring any legal action or initiate any dispute against FUNNIES in connection with or arising from any agreement shall lapse or become time-barred one year after the other party became aware of, or could have become aware of, the grounds for such action or dispute.
Article 17. Choice of Law and Jurisdiction
1. All disputes relating to the agreements governed by these general terms and conditions shall be settled exclusively by the District Court of Oost-Brabant.
2. FUNNIES shall at all times retain the right to sue the other party before the court having jurisdiction under the law or the applicable international treaty. The provisions of the Vienna Convention on Contracts for the International Sale of Goods do not apply and are expressly excluded.
3. All agreements governed by these general terms and conditions, as well as any agreements arising from or related to them, are governed exclusively by Dutch law.