ARTICLE 1. | DEFINITIONS
In these general terms and conditions, the following terms are used with the following meaning, insofar as it doesn’t appear otherwise from the nature or purport of the clauses.
1. Martouche.com: Part of Studio Martin Melis B.V., the user of these general terms and conditions, registered office in Boxtel, and entered into the Trade Register under No. 16087618.
2. Counterparty: each natural person or legal entity with whom Classicar-art.com have entered into an agreement or intend to do so.
3. Consumer: the counterparty as meant in the previous section who does not act in the pursuance of a profession or company.
4. Agreement: each agreement realised between Martouche.com and counterparty by which Martouche.com have committed themselves, at a price mutually agreed upon between parties, to sell and deliver goods whether or not produced according to the specifications of counterparty.
5. Remote agreement: the agreement as meant in the previous section, which has been entered into between Martouche.com and a consumer within the scope of an organised system for remote selling without Martouche.com and consumer being personally present at the same time and for which up to and including closing the agreement only one or more means for remote communication have been used, among which the agreement which was closed through the Webshop of Martouche.com.
6. Goods: all goods to be sold and delivered by Martouche.com to counterparty within the scope of the agreement, including but not limited to: pictures on canvas, dibond, posters, calendars, postcards and/or other materials.
7. Work: all work which within the scope of the agreement will be rendered or executed by Martouche.com, including but not limited to work in connection with goods to be delivered and to be produced in accordance with specifications of counterparty,
8. In writing: traditional written communication as well as digital communication need to be saved on a durable data carrier like e-mail communication.
ARTICLE 2. | GENERAL PROVISIONS
1. These general terms and conditions apply to each offer of Martouche.com and each realised agreement.
2. Applicability of the buying terms or other terms and conditions of counterparty will be rejected explicitly.
3. From what has been stipulated in these general terms and conditions can only be deviated in writing. In case and insofar as what has been agreed upon explicitly and in writing by parties deviates from what has been stipulated in these general terms and conditions, only what has been explicitly agreed upon in writing by parties applies.
4. Annulment or invalidity of one or more of those provisions will not affect the validity of the other clauses. In such a case parties are to mutually agree on a replacement for that/those particular provision(s), taking into account the purpose and purport of the original provision.
ARTICLE 3. | OFFER AND REALISATION OF THE AGREEMENT
1. Unless a period of acceptance has been included in the offer, each offer of Martouche.com will be non-binding.
2. Obvious mistakes or errors in the offer of Martouche.com will not bind Martouche.com.
3. No rights can be derived by counterparty from an offer made by Martouche.com based on incorrect or incomplete information provided by counterparty.
4. An offer made by Martouche.com does not automatically apply to any subsequent agreement. However, insofar as no changes have been made in the present general terms and conditions, these do also apply to subsequent agreements without Martouche.com having to again and again provide those terms and conditions to counterparty.
5. The agreement is realised through offer and acceptance. Should acceptance by counterparty be different from the offer of Martouche.com, the agreement will not be realised according to this deviating acceptance, unless Martouche.com indicate otherwise. Should the agreement be realised through the Webshop of Martouche.com, the order of counterparty will be confirmed as soon as possible via e-mail.
6. A compiled offer never obliges Martouche.com to observe part of the offer at a corresponding part of the stated price.
7. In case counterparty concludes the agreement on behalf of another natural person or legal entity, counterparty declares to be duly authorised thereto by entering into the agreement. Both the said natural person or legal entity and counterparty will be jointly and severally liable as to fulfilment of the obligations resulting from that agreement.
ARTICLE 4. | IMPLEMENTATION/DELIVERY TERMS
1. com will do their utmost to meet the implementation and delivery terms mutually agreed upon by parties, however, these terms will never be considered deadlines. Martouche.com will be in default only after counterparty has sent a written notice of default to Martouche.com stating a reasonable period during which Martouche.com can still observe the agreement and still failed to do so after the said period of time has expired.
2. In case Martouche.com need information to be provided by counterparty to be able to execute the agreement, implementation- and delivery terms will only commence after Martouche.com have received those details.
ARTICLE 5. | PROVISIONS REGARDING GOODS TO BE PRODUCED IN ACCORDANCE WITH COUNTERPARTY’S SPECIFICATIONS
1. This article will only apply insofar as the agreement concerns delivery of items to be produced according to specifications provided by counterparty, like in case of the design of personalised works, this undiminished what has been provided in the rest of these general terms and conditions.
2. As soon as it is required for the execution of the agreement, counterparty is to place all thereto relevant information at the disposal of Martouche.com in the way specified by Martouche.com. Furthermore, counterparty is kept to give Martouche.com the opportunity to make photos at counterparty’s location on the basis whereof the goods can be produced.
3. Insofar as work is done at counterparty’s location, counterparty must make sure the place of execution is suitable, and that Martouche.com will temporarily gain access to the location of execution, and that Martouche.com can, free of charge, make use of all facilities and things available at the location and required, within reason, and that all other reasonably necessary requirements as to the implementation of the work have been met. Furthermore, counterparty is to follow the instructions given by Martouche.com. Counterparty, by the way, will take all the necessary measures to optimise the implementation of the work.
4. In case counterparty does not, not fully, not in time or not properly meet their obligations following the previous two sections of this article, com, undiminished what has been provided in the rest of these general terms and conditions, are authorised to suspend the implementation of the agreement and to charge all damages resulting from that delay to counterparty.
ARTICLE 6. | TOLERANCES
Any stated, shown and/or agreed upon features of the items to be delivered may deviate on minor points from what actually will be supplied. Minor points being all small differences in features of the items which counterparty should, within reason, tolerate, such as minor deviations in colour, shape, and size. Minor deviations as such should not be ground for counterparty to suspend their obligations resulting from the agreement, nor to dissolve the agreement totally or partly, nor to claim damages or any other compensation.
ARTICLE 7. | DELIVERY OF GOODS
1. Delivery of goods will take place by bringing said goods at the delivery address specified by counterparty. If a delivery address is not available, the billing address will be considered the delivery address.
2. Risk of loss and damage of the goods will pass to counterparty the moment the goods have been received by or on behalf of counterparty.
3. Counterparty is required to accept the goods the moment they are being delivered to them. In case counterparty for whatever reason refuses the delivery or fails to give information or instructions which are needed for proper delivery, the goods will be stored for the account of counterparty after Martouche.com notified them thereof. In such a case counterparty has to pay a reasonable price for storage of the goods on top of the agreed price.
4. com are allowed to perform part-deliveries. In such a case Martouche.com are authorized to bill each part separately.
ARTICLE 8. | INSPECTION, CLAIMS AND WARRANTY
1. The moment the goods are delivered, counterparty is to immediately check whether the delivered goods are in accordance with the agreement. Should this, according to counterparty, not be the case, they need to notify Martouche.com thereof immediately in writing.
2. Should counterparty fail to file a complaint in time, Martouche.com will not be required to do anything following such a claim from counterparty.
3. Claims will never suspend any payment requirements of counterparty.
4. A warranty provided by Martouche.com or a third party will be without prejudice to the mandatory statutory rights claims which consumers may assert on the basis of the agreement towards Martouche.com.
5. Without prejudice to the mandatory statutory rights of consumers as meant in the previous section, Martouche.com will only guarantee that the goods comply with the agreement when delivered. No grounds for complaints are claims regarding faulty goods, due to an external cause, as well as defects which cannot be attributed to Martouche.com, including, but not limited to, any tolerances as meant in article 6, defects resulting from damage and incorrect or incompetent use.
6. Any incurred costs to establish a defect which is no ground for complaint, will be for the account of counterparty. Martouche.com aim to notify counterparty thereof in advance, but if they don’t, counterparty is still required to pay those costs.
7. com will address a claim only after counterparty has met all their obligations due towards Martouche.com.
8. What has been provided in the previous sections of this article will be without prejudice to what has been provided in article 13.8 regarding consumer purchases.
9. Any costs incurred in connection with revision of drawings and repairing delivered goods will be for the account of counterparty, unless such revision or repair was required in relation to and due to a shortcoming attributable to Martouche.com.
ARTICLE 9. | RIGHT OF DISSOLUTION IN CASE OF REMOTE AGREEMENT
1. Except for what has been provided in the rest of this article, consumer may dissolve the remote agreement up to 14 days after having received the goods, without stating the reasons.
2. Consumer has no right of dissolution in case of delivery of goods produced according to specifications of consumer, which have not been prefabricated, and which have been produced on the basis of an individual choice or decision of consumer, or which clearly are meant for a specific person.
3. Consumers asserting the right to dissolution can dissolve the remote agreement by submitting a request thereto to Martouche.com via e-mail or by using the revoke-form offered by Martouche.com. As soon as possible after Martouche.com have been notified as to the consumer wishing to dissolve the remote agreement and if the requirements of this article have been met, Martouche.com will confirm the dissolution by e-mail.
4. During the period as meant in section 1, consumer needs to handle the goods and packaging with care. Consumer may only unpack and use the goods insofar as it is necessary to be able to check the nature and features of the goods.
5. If a consumer asserts the right of dissolution, he has return the goods to Martouche.com undamaged, with all delivered accessories and in the original state and packaging. In case and insofar as the value of the goods has impaired due to the consumer doing more than necessary to check the nature and/or features of the goods, Martouche.com are authorised to charge this impairment and to settle it with payments received from that consumer.
6. Returning goods needs to take place within fourteen days following the confirmation by Martouche.com as to the dissolution of the remote agreement, in accordance with what has been provided in section 3.
7. If the consumer asserts his right of dissolution, all costs incurred for returning the goods are for the account of consumer.
ARTICLE 10. | FORCE MAJEURE
1. com are not kept to fulfil any obligation resulting from the agreement in case they are being hindered by circumstances which cannot be attributed to them under the law, a legal action or according to generally accepted views.
2. During the period of force majeure any contractual obligations of parties will be suspended.
3. If fulfilment of the agreement turns out to be permanently impossible due to the force majeure, parties are authorised to dissolve the agreement with immediate effect.
4. In case Martouche.com the moment the force majeure situation occurred already had partly fulfilled their obligations or will only be able to meet part of their obligations, they are authorised to bill the already completed part, or the part of the agreement that can be executed separately as if it were an independent agreement.
5. Any damages resulting from the force majeure, without prejudice to application of the previous section, will never be eligible for compensation.
ARTICLE 11. | SUSPENSION AND DISSOLUTION
1. If circumstances justify it, Martouche.com are authorised to suspend the execution of the agreement or to partly or totally dissolve the agreement with immediate effect, in case and insofar as counterparty will not, or not in time, or not fully, meet their obligations as to the agreement, or if after closing the agreement Martouche.com have heard about circumstances which give good grounds to fear that counterparty will not observe their obligations.
2. In case of counterparty being bankrupt, or their goods have been seized or if they otherwise cannot freely dispose of their assets, Martouche.com are authorised to dissolve the agreement with immediate effect, unless counterparty already has provided adequate security for payment.
3. Furthermore, Martouche.com are authorized to dissolve the agreement in case and insofar as circumstances occur which are of such nature that observance of the agreement will be impossible or an unchanged continuation thereof can reasonably not be required from them.
4. Counterparty will never be entitled to any form of compensation in connection with the by Martouche.com on the basis of this article asserted suspension- and dissolution right.
5. Insofar as it can be attributed to them, counterparty is required to compensate Martouche.com for damages suffered as a result of the suspension or dissolution of the agreement.
6. In case Martouche.com, on the basis of this article, will dissolve the agreement, all claims on counterparty will be payable immediately.
ARTICLE 12. | PRICES AND PAYMENTS
1. The offer of com states as accurately as possible prices and cost factors, including, but not limited to, fixed product prices and/or travel/accommodation costs in connection with the execution of the work.
2. All prices stated by Martouche.com are exclusive of VAT and delivery costs, unless explicitly stated otherwise.
3. In case of a consumer purchase the total price inclusive of VAT and delivery costs will be stated prior to the realisation thereof.
4. If after realisation of the agreement there are changes in VAT rates or other government levies, Martouche.com are authorised to adjust the prices accordingly.
5. com are authorised to charge counterparty any price increases as to cost price determining factors which are published after realisation of the agreement, though prior to delivery of the goods. If counterparty is a consumer, consumer is authorised to decline the price increase and to dissolve the agreement, providing charging the price increase takes place within three months after the agreement was realized and Martouche.com still do not explicitly state that they wish to observe the agreement on the original agreed terms and conditions.
6. com will at all times be authorised to claim part or full payment in advance of the agreed price. In case of payment in advance counterparty cannot assert any right with regard to the execution of the agreement as long as said payment in advance has not been done.
7. In case of liquidation, bankruptcy or suspension of payment regarding counterparty, all receivables from counterparty will be due and payable with immediate effect.
8. Insofar as has been agreed that payment is due after delivery of the goods, the payment term stated on the invoice is to be observed in the way as specified by Martouche.com, unless explicitly agreed upon otherwise.
9. If counterparty fails to pay in time, they will be in default by operation of law. From the day counterparty is in default counterparty will be charged 1% interest per month on the amount due, and part of a month will be considered a full month. In deviation of the previous sentence, in case counterparty acts as a consumer, instead of contractual interest, statutory interest will be calculated on the amount due.
10. All reasonable costs incurred, judicial, extrajudicial as well as enforcement costs to obtain the amounts due by counterparty, will be for the account of counterparty.
ARTICLE 13. | LIABILITY AND INDEMNITY
1. After delivery of the goods, com is without prejudice to what has been provided in article 8 never liable for any defects thereof.
2. Counterparty bears the risk as to their choice of carrier on which images are printed.
3. com will never be liable for damages resulting from using information provided by counterparty which proved incorrect or incomplete.
4. Counterparty will be liable for damages resulting from not properly or untimely observance of their obligations under the agreement, as well as for damages resulting from circumstances which cannot be attributed to Martouche.com.
5. com will never be liable for consequential damage, including loss of profit, incurred loss and damage as a result of business stagnation.
6. The liability of Martouche.com will in any case be limited to the invoice value of the agreement, that is, up to that part of the agreement to which the liability of Martouche.com is relating, provided that the liability of Martouche.com will never be more than the amount which in the case concerned is actually covered on the basis of the liability insurance of Martouche.com, increased with the deductibles that apply pursuant to said insurance.
7. com are at all times authorised to restore the damages for which Martouche.com are liable despite what has been provided in these general terms and conditions. Counterparty is to give Martouche.com the opportunity to do so, and failing to do so will result in Martouche.com no longer being held liable as to that particular matter.
8. The limitation period of all legal claims and defences towards Martouche.com is one year. In deviation of the previous sentence the limitation period of claims and defences owed to consumers which are based on the facts which would justify the claim that a consumer purchase does not meet the agreement, will be two years. The right to bring an action or defence in connection with the existence of a defective good will expire in case of a consumer purchase after two months following the discovery of the defect by the consumer.
9. In case of a consumer purchase the limitations of this article will not exceed that what has been permitted pursuant to article 7:24 sec.2 of the Dutch Civil Code.
10. Except for cases of intent or wilful recklessness on the part of Martouche.com, counterparty will indemnify Martouche.com from and against all liabilities of third parties, for whatever reason, as to compensation for damages, costs incurred or interests in relation to the execution of the agreement by or on behalf of Martouche.com, as well as the use of the goods delivered by Martouche.com.
ARTICLE 14. | COMPLAINTS
1. Any complaints, fully and clearly specified, in relation to the execution of the agreement need to be submitted to Martouche.com via e-mail in due time after counterparty established the defects,
2. Complaints submitted to Martouche.com will be addressed within fourteen days after receipt. Should a complaint require more time to process, a confirmation of receipt will be sent within the 14-day period, as well as an indication as to when counterparty may expect a more elaborate answer.
ARTICLE 15. | RETENTION OF TITLE
1. All goods sold and delivered by Martouche.com will remain property of Martouche.com until counterparty has properly fulfilled all their obligations under the agreement.
2. Counterparty is not permitted to sell, pledge or encumber in any other way the goods sold by Martouche.com which are still subject to retention of title.
3. In case third parties levy an attachment on the goods subject to retention of title, or if they wish to establish or assert rights thereto, counterparty is required to notify Martouche.com thereof as soon as possible.
4. Counterparty unconditionally authorises Martouche.com or third parties appointed by Martouche.com to access all those places where the goods subject to retention of tile are located. Martouche.com are authorised to take back the said goods if counterparty is in default. All reasonable costs incurred in such case will be for the account of counterparty.
5. If counterparty has fulfilled their obligations after the goods purchased have been delivered by com to them, the retention of title in relation to those goods will apply again should counterparty not meet their obligations under an agreement closed later.
ARTICLE 16. | INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
1. Insofar as these rights do not lie with third parties, the intellectual and industrial property rights lie with Martouche.com regarding all goods delivered and designs and drafts used by Martouche.com as well as all procedures and work methods applied by Martouche.com. Counterparty is not authorised to copy, reproduce, and share with third parties or to disclose these goods, or have that done, in any other way than in compliance with the nature and purport of the agreement.
2. com reserve the rights they have by operation of law, in connection with infringement by counterparty regarding what has been provided in the previous section, including the right to damages.
ARTICLE 17. | USER RIGHT OF MARTOUCHE.COM
1. If what has been delivered concerns a limited edition, then this only applies to carriers measuring ca. 80 x 60 cm, provided that Martouche.com are authorised to use the images concerned in a considerably smaller format on their website and for printing on postcards, calendars, in books and on/in other carriers of similar size.
2. The right of Martouche.com as meant in the previous section does not apply to works which by order of counterparty are personalised, except with explicit permission of counterparty beforehand.
ARTICLE 18. | FINAL PROVISIONS
1. To each agreement and all legal relations resulting from that agreement between parties only Dutch law applies.
2. Parties will not recourse to the court before doing their utmost to settle a dispute amicably.
3. Insofar as the law does not provide otherwise, only the competent judge within the district of the registered office of Martouche.com will be appointed in case of a dispute.