MOMIQ General Terms and Conditions
Article 1. Applicability
1. These ‘MOMIQ General Terms and Conditions’ (hereafter: “General Conditions”) apply to and form an integral part of all offers, confirmations and (sale) agreements concluded between MOMIQ and the counterparty of MOMIQ, (hereafter: “Buyer”).
2. Please read and understand these General Conditions before placing an order. The Buyer will be bound by the terms once an order is placed.
3. Any terms and conditions used by Buyer are only applicable in so far as not contrary to the provisions of the General Conditions. In such case the General Conditions shall prevail.
Article 2. Agreement and cancellation
1. An agreement shall take effect once an offer accepted by Buyer has been confirmed by MOMIQ in writing.
2. Orders for products made on demand (“specials”) and which have been discussed during the design process with Buyer cannot be cancelled.
3. Unless agreed otherwise all other orders may be cancelled or changed within 1 (one) working day following the order confirmation by MOMIQ. Any other change or cancellation of an order is subject to MOMIQ’s written approval and is subject to conditions by MOMIQ.
4. If the price, discounts or dates of delivery are based on an apparent error, MOMIQ may correct the mistakes or cancel the order.
5. MOMIQ is entitled to require at any time security for compliance with Buyer’s financial obligations.
Article 3. Price and payment
1. All quoted prices by MOMIQ are in EURO, 21% VAT is included in the price.
2. All prices are exclusive of delivery costs, governmental taxes and import duties, if applicable. These costs will be added to the sales price and form a part of the agreed invoiced amount due by Buyer.
3. Unless expressly agreed otherwise in writing, all orders are accepted on the basis of pre-payment.
4. Any invoice must have been paid on MOMIQ’s bank account not later than 14 (fourteen) calendar days upon invoice date. Within such term the amount stated on the invoice must be received by MOMIQ in the same currency as printed on the invoice, without any deduction on account of costs of money transfer or comparable costs or deduction of any other amount and without any set-off. In case delivery of any order agreed on a prepayment condition takes place within the aforementioned term, the invoiced amount must be settled at least 5 (five) calendar days prior to the scheduled delivery date.
5. If the invoiced amount is not paid in within the payment term, then Buyer is in default without any notice being required.
6. All costs arising in connection with any debt collection, including without limitation out-of-court expenses, shall be for the account of Buyer.
7. Even if Buyer is of the opinion that the (quality of the) delivered products is not in accordance with the agreed products, this does not release him from the obligation to pay.
8. In the event of any default by Buyer in the payment of any amounts or charges due, MOMIQ has the right to postpone any further deliveries of any products, without being liable for any losses by Buyer. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the agreement or at law.
Article 4. Delivery / Transport cost or damage
1. MOMIQ shall always use commercially reasonable efforts to deliver the products within the delivery term. However, unless explicitly agreed otherwise in writing, delivery dates communicated in or acknowledged by MOMIQ are approximate dates. MOMIQ shall not be liable or be in breach of its obligations, when delivery is made sooner or later than the communicated delay.
2. If the communicated delivery date is exceeded, Buyer is still obliged to take delivery of the products, unless Buyer has put MOMIQ in default before delivery, allowing MOMIQ with a reasonable period to execute the agreement, and such term has also expired.
3. Unless explicitly agreed otherwise, any delivery is made under Incoterms 2010 conditions:
(i) within the EU or EEA: DAP (Delivered At Place = delivery at premises Buyer; duties, taxes are for Buyer’s account) ;
(ii) within the USA: DDP (Delivered Duty Paid) = delivery at premises Buyer including all duties and taxes) ;
(iii) Other North or South American countries= ex works MOMIQ-warehouse Netherlands;
(iv) all other deliveries: ex works MOMIQ-warehouse Netherlands
Extra carriage costs may be charged in the event that the order amount remains under a set minimum order amount.
4. When Buyer fails to take delivery of the products, or fails to provide the information or instructions to enable delivery it is fully liable to MOMIQ for all damages and losses suffered by MOMIQ, such as (but not limited to) transportation costs, extra storage, handling and insurance. Regarding (re-)delivery, MOMIQ may demand prior payment of all aforementioned costs.
5. Upon delivery, Buyer shall check the condition of the packaging and, if this has any defects, Buyer shall, in the presence of the carrier, open the packaging and check the products for damage.
6. If the products are damaged Buyer has the right to refuse delivery of the products and have the carrier take it back. It shall notify MOMIQ immediately by e-mail if possible with a picture of the condition in which the products and packaging have been delivered.
Article 5. Product description vintage or antique items
1. All products are sold subject to the specific product description on the website (the “Site”). All reasonable care is taken by MOMIQ to ensure the product details and description is accurate when they are entered on to the system. Items described as ‘vintage’, ‘antique’, or ‘old’ are products that have been previously used or constructed from previously used materials. The condition of these items is not new and therefore by nature they may show signs of wear or ageing. In addition, most of MOMIQ’s products are one of a kind. All of the products are provided with an adequate description and photographs to enable the Buyer to have good judgment regarding these products. The photographs serve as an example, the delivered articles can differ in color and condition from the articles as shown on the Site.
2. By agreeing to purchase such an item the Buyer understands and accepts that the products are not as new and may show signs of wear and ageing. The images shown are for illustration purposes only, occasionally the description may not be a true reflection of the products purchased.
3. MOMIQ updates the Site as often as possible, however all articles are sold on a first come, first served basis and it is possible for something to be sold and not indicated as so.
Article 6. Changes to specifications, complaints and returns
1. All images, designs, data relating to size, weight, colors etc are approximate. Deviations cannot give rise to any claims for damages or termination of the agreement.
2. Depending on the materials used for its manufacture, the products may change in the course of time, due to environmental influences (UV – light and other).
3. If the products delivered are not, in the opinion of the Buyer, in accordance with the products ordered through the website or telephone or not all products have been delivered, Buyer shall immediately notify MOMIQ by e-mail and in any event not later than the fifth working day following the delivery date. MOMIQ is not obliged to deal with complaints that have been received beyond this term.
4. In the event that the Buyer has ordered products on the basis of information and pictures on the Site or by telephone, the Buyer is entitled to return any products to MOMIQ within fourteen (14) calendar days of its delivery, without need to give any reason. This has the effect of cancelling the purchase of that article and Buyer will be refunded the amount already paid to MOMIQ for the said article within 14 days. Please note that we will not refund the shipping/transport cost for the returned articles. If the Buyer has bought the product at one of MOMIQ’s selling points or in MOMIQ’s showroom, there is no right to return the product as the Buyer can assume and see that the product is in order.
5. Products being returned must be in the condition generally accepted for normal use regarding approval of the products. If the Buyer wishes to exercise such right to return an article, the article must be returned to MOMIQ together with everything originally sent with it, in its original state and packaging, in accordance with the clear and reasonable instructions given by MOMIQ.
6. MOMIQ is entitled to refuse to accept a returned product or to send it back to the Buyer if the product reveals damage caused by the Buyer or if the Buyer does not comply with the instructions for returning the article given by MOMIQ.
7. Defect products may only be returned to MOMIQ at MOMIQ’s expense after MOMIQ has given its prior written approval or MOMIQ requested to return the defect products. If the products have not been received within 15 (fifteen) working days, Buyer is supposed to keep the products and to have withdrawn its complaint.
Article 7. Suspension and termination
1. MOMIQ is entitled to suspend in whole or in part performance of its obligations under any agreement or to terminate the agreement if:
(i) Buyer has failed to comply on time, in full or at all with its obligations under previous agreements;
(ii) if having entered into the agreement, MOMIQ has good reasons to fear that Buyer will not (be able to) comply with its financial obligations;
(iii) Buyer failed to supply the requested security or any adequate security.
2. If, due to delay on the part of Buyer MOMIQ cannot reasonably be expected to comply with the agreement upon the terms originally agreed, then MOMIQ is entitled to cancel the agreement with immediate effect. Buyer shall be liable towards MOMIQ for any and all costs or damages, or loss in profits suffered by MOMIQ.
3. MOMIQ is entitled to terminate the agreement if circumstances arise whose nature and extent means that MOMIQ cannot be expected according to the principles of reasonableness and fairness to perform the original agreement.
Article 8. Warranty /Limitation of liability
1. In view of the specific nature of the products, such products are sold “as is” and no guarantee whatsoever is given to Buyer in relations to the products sold.
2. MOMIQ shall not be liable for any lost profits or savings, loss of reputation or goodwill, indirect or incidental or consequential damages arising out or in connection with the sale of the product(s) or the use of these whether or not any claim is based on tort, warranty, contract or any other legal possibility, even in the circumstances that MOMIQ has been advised of any risks.
3. MOMIQ’s liability to Buyer under these terms and conditions will not exceed the total value of the order.
Article 9. Force majeure
1. In the event of force majeure, the obligations of either party are suspended until the situation of force majeure has ended. If the force majeure lasts longer than three (3) calendar months, then either party is entitled to terminate the agreement without any liability to compensate the other party.
2. ‘Force majeure’ includes, in addition to the definition by law, import and export bans or controls by, or due to, any government or power, the failure of suppliers or service providers of MOMIQ to deliver on time or at all, suspension of work by, or a high amount of sick leave amongst, the employees of MOMIQ or its suppliers.
3. MOMIQ is also entitled to rely on force majeure if the situation of force majeure begins after MOMIQ should have fulfilled its obligations.
4. Insofar as at the time the situation of force majeure commences MOMIQ has partly fulfilled its obligations under the agreement or is still able to do so, then MOMIQ is entitled to invoice for all the parts of the agreement it has complied with or will comply with. In such a case Buyer is obliged to pay as if it were a separate agreement.
Article 10. Retention of title
1. All products delivered remain the property of MOMIQ until Buyer has fulfilled its obligations to MOMIQ in full. If any invoice remains unpaid, MOMIQ’s retention of title shall also cover all products previously delivered which have been paid for by Buyer.
2. Products that are subject to retention of title may only be sold in the context of normal business practice and may not be pledged or otherwise encumber the products subject to retention of title.
3. If any attachment is levied by a third party upon the products subject to retention of title, then Buyer shall inform the third party levying the attachment of the retention of title and notify MOMIQ of this immediately.
4. Buyer undertakes to keep insured the products subject to the retention of title against fire, explosion, or water damage, as well as against theft. On demand by MOMIQ, Buyer shall provide a copy of the insurance policy, as well as ensure that the rights under the insurance policy covering the products subject to the retention of title shall be transferred to MOMIQ or that MOMIQ is subrogated in these rights.
Article 11. Intellectual property rights and copyrights
1. MOMIQ is the owner and/or authorized user of any registered or unregistered trademark, trade name and other intellectual property rights appearing on the Site, and is the licensee or copyright owner of the materials and content on the Site, unless otherwise indicated. The MOMIQ logos, designs, copyrights, trademarks, and/or other intellectual property in such materials are owned by MOMIQ. Buyer is only entitled to view, copy or print pages from the Site solely for personal, non-commercial purposes.
2. MOMIQ retains the rights and powers it accrues on the basis of the applicable intellectual and industrial legislation and regulations relating to all the products it supplies, insofar as these rights do not belong to any third party.
3. Buyer may not have products supplied by MOMIQ copied elsewhere, or manufacture imitations thereof that differ in only minor details from the products supplied, or become directly or directly involved in this.
4. Copyright or any other intellectual property of sketches, designs or models in whatever phase of elaboration these are and have been delivered to or shown to Buyer, remain the full property of MOMIQ and may not be used otherwise that agreed in writing and solely for that specific purpose. Any permitted use does not mean that intellectual property rights have been transferred.
Article 12. Applicable law / disputes
1. The legal relationship between MOMIQ and Buyer shall be governed by and construed in accordance with the laws of the Netherlands and shall be brought exclusively before the court in Amsterdam, the Netherlands.
2. The terms of the Vienna Sales Convention shall not apply.
Article 13. Final terms
1. The version that is binding is the latest version published on the website www.momiq-design.com at the time the agreement is entered into.
2. If any provisions in these General Conditions are void or revoked by the courts, the remaining provisions remain in force. MOMIQ and Buyer shall negotiate substitute provisions that are in line with the original provisions in terms of purpose and scope.
Haarlem, June 2015