General terms and conditions

Article 1 Applicability

1. These general terms and conditions shall apply to all offers made and agreements concluded by Smartblinds B.V., Vonderweg 48, 7468 DC Enter, registered with the Chamber of Commerce with number 66786126 (hereinafter referred to as: Smartblinds), including but not limited to: the provision of services, such as repair and maintenance work, the provision of advice and the engagement of other persons whose services are used by Smartblinds and third parties.
2. General terms and conditions of the customer are explicitly excluded and do not apply, not even in addition to these general terms and conditions of Smartblinds.

Article 2 Offer

1. All offers by Smartblinds are without obligation and the quality standards, models, sizes, colours and other statements mentioned therein shall only be approximations.
2. All information included in Smartblinds’ documentation shall be subject to change.

Article 3 Agreement

1. An agreement is established when the customer accepts an offer from Smartblinds.
2. These general terms and conditions form an integral part of the agreement. In the event of any contradictions between the text of the agreement and these general terms and conditions, the text of the agreement shall prevail.
3. Verbal promises by and/or (supplemental) agreements with employees, other persons whose services are used by Smartblinds and/or third parties of Smartblinds are subject to approval by the Management and only bind Smartblinds if this has been accepted by the person of Smartblinds with representational authority.
4. If the agreement is entered into with at least two (2) or more customers, then they are each jointly and severally liable for the full compliance therewith.

Article 4 Prices

1. All prices, rates and/or amounts mentioned by Smartblinds are inclusive of VAT and/or other government levies. The costs of transport and/or shipping may be mentioned separately. All prices, rates and/or amounts mentioned by Smartblinds are shown in euros (€).
2. If, after the conclusion, but before the (full) execution of the agreement, one or more price-determining factors increase, Smartblinds has the right to adjust the price as a result. In that case, the customer has the right to dissolve the agreement, unless it concerns statutory price increases, such as VAT.

Article 5 Term of delivery

1. The delivery date specified by Smartblinds, or the delivery date specified by Smartblinds, respectively, is approximate and is not a strict deadline (fatale termijn). In the event of late delivery, Smartblinds must be given a written notice of default within five (5) working days after the agreed delivery date, after which Smartblinds will be given the opportunity by the customer to yet provide the items to the customer within a reasonable period, without Smartblinds being obliged to pay the customer compensation.
2. The delivery period starts upon receipt by the customer of Smartblinds' order confirmation and as soon as Smartblinds is in possession of all items, specifications, instructions, information and documents to be furnished by the customer.
3. If a time period for taking possession has not been agreed on, Smartblinds is authorised to invoice the agreed price if the items have not been taken possession of by the customer within fourteen (14) days after Smartblinds requested this in writing.

Article 6 Complaints procedure

1. Smartblinds has a complaints procedure and handles a customer complaint in accordance with said procedure.

Article 7 Delivery of the items and transfer of risk

1. Deliveries of Smartblinds are made Delivery Duty Paid as referred to in the Incoterms 2020. The risk of the delivered items always transfers to the customer at the time of delivery.

1. The customer must ensure that Smartblinds can reach the destination where the items must be delivered via a well-paved, public road, without damage occurring to the transport vehicle of Smartblinds, or the other persons whose services are used by Smartblinds and/or third parties engaged by it.

1. The customer must take possession of the items at the agreed location and agreed delivery time or within the stated delivery period. All (additional) costs arising for Smartblinds as a result of the customer’s not or not timely taking possession of the items shall be at the customer's expense. In that event Smartblinds is entitled, but not required, to store the items at the customer’s expense and risk.
2. Smartblinds may deliver the items in parts and invoice these deliveries separately.

Article 8 Packaging, shipping and (internal) transport

1. Smartblinds shall determine the manner of packaging and shipment, with the costs and risk to be borne by the customer. If the customer desires a special manner of packaging and/or shipment, the related additional costs shall be borne by the customer.
2. Smartblinds does not take packaging back.

Article 9 Customer’s duty to inspect

1. The customer shall inspect the items delivered immediately after delivery as referred to in article 7 of these general terms and conditions. The customer shall check both the number and quality of the items delivered. If the customer discovers defects, flaws and/or damage to the items during this inspection/check, it shall immediately, but no later than within five (5) working days after delivery as referred to in Article 7 of these general terms and conditions, report this in detail and in writing, to Smartblinds. The customer’s right to complain about both the number and the quality of the supplied items will, in any case, expire no later than twelve (12) months after delivery as referred to in article 7 of these general terms and conditions.

Article 10 Time for reflection, right of withdrawal and return shipments in case of defects

1. The customer has fourteen (14) days to reconsider. This includes the right to dissolve the agreement without statement of reasons until a period of fourteen (14) days has expired, starting:
1. the day on which the customer or a third party - not a carrier - who is designated by the customer, has received the items;
2. the day on which the customer or a third party - not a carrier - designated by the customer, has received the last consignment if the customer had agreed to several consignments in the same agreement with Smartblinds, to be delivered separately.
2. The customer exercises the right referred to in paragraph 1 by sending Smartblinds the completed template form for dissolution within the set period or by making another unambiguous statement to Smartblinds and then returning the items to Smartblinds within fourteen (14) days. The costs for the return are for the customer.
3. The right of withdrawal mentioned under paragraph 1 does not apply in the case of customisation. This applies if the items are delivered according to specifications of the customer, the items are not prefabricated and are made based on an individual choice or decision of the customer or are clearly intended for a specific person.
4. Return shipments in case of defects shall only be accepted by Smartblinds in consultation, in the condition received by the customer, preferably in the original packaging but, in any case, packaged properly and with a statement of reasons. Return shipments shall occur at the customer’s risk. Receipt of the return shipments shall in no way imply that Smartblinds acknowledges the reason given by the customer for the return shipments.

Article 11 Deviations

1. Minor deviations in quality, colour, finish, hardness, thickness, weight, sizes, level of symmetrical watermark, quantity supplements and suchlike shall not provide cause for the customer to reject the items. In the event of material deviations, there is non-conformity as referred to in Article 14.
2. When assessing whether the content of the items deviates beyond the permissible limits, an average must be taken from the entire content of the items delivered; the entire order cannot be rejected based on a few deviating samples.

Article 12 Retention of title

1. The title to the items delivered by Smartblinds shall not pass to the customer until everything owed by the customer to Smartblinds, under any agreement whatsoever, however termed and including interest and costs, has been paid to Smartblinds in full.
2. The customer shall acquire ownership of the items delivered by Smartblinds subject to a right of pledge for Smartblinds’ benefit regarding everything which the customer owes Smartblinds or shall owe it in the future.
3. The customer may not re-deliver, sell, encumber or (tacitly) pledge (to a party other than Smartblinds) items which are still unpaid, create any restrictive right on these or otherwise dispose of these contrary to the retention of title.
4. If Smartblinds’ right of ownership is lost due to conversion, accession or merger, the customer shall create a non-possessory pledge for Smartblinds’ benefit on the newly created or newly arising object.
5. The costs associated with the exercise of its right of pledge or retention of title shall be borne by the customer.

Article 13 Payment

1. The customer shall pay every invoice sent by Smartblinds upon delivery, without any deduction or discount. Payment of invoices sent by Smartblinds shall be made to Smartblinds in the bank account indicated by Smartblinds. Payment, however termed, to Smartblinds’ employees is not permitted, does not release customer from obligations and can never provide grounds for debt settlement or offsetting.
2. The customer is deemed to agree with the invoice, unless it reports this to Smartblinds in detail and in writing within ten (10) working days. Any complaint does not relieve the customer of its payment obligation.
3. In case of non-payment, non-timely payment or incomplete payment of the amount owed by it, the customer shall be in default by operation of law with effect from the due date of the relevant invoice and shall owe interest of one per cent (1%) per calendar month on the outstanding gross debit or invoice amount, whereby a part of a month is charged for a full month, which interest is payable immediately and without further notice of default.
4. Smartblinds’ entire claim, however arising, including that portion not collected yet or not invoiced yet, shall be immediately due and payable in full: - in case of non-timely payment of amounts owed by the customer; - if the customer applies for bankruptcy, the bankruptcy of the customer is requested or if the customer is declared bankrupt, requests or obtains a suspension of payments, the statutory debt restructuring scheme (WSNP, wet schuldsanering natuurlijke personen) is declared applicable to it, or application thereof is requested; - if the customer loses its legal personality, or dissolved or liquidated; - if and once any attachment is made against the customer.
5. All costs arising from or related to (extra)judicial collection of Smartblinds’ claim are for the customer’s account. These extrajudicial costs are calculated in accordance with the Extrajudicial Collection Costs Decree (Wet Incassokosten)  with a minimum of forty euros (€40) per claim to be collected.
6. Payments made by the customer shall always be deemed first to pay for all interest and costs owed as referred to in paragraphs 4 and 6 of this article and, secondly, to the due and payable claims which have been outstanding the longest, even if the customer states that the payment relates to a claim of a later date.

Article 14 Warranty and repairs

1. Smartblinds declares that the supplied items comply with the agreement and are free of defects. If said items do not have the characteristics the customer could reasonably expect from the order, then there is a case of non-conformity. In the event of non-conformity, the customer is entitled to delivery of the missing items or to have non-compliant items repaired or replaced free of charge, to dissolve the agreement or to reduce the purchase price of the order in proportion to the deviation from the agreement, unless this is impossible or cannot be required of Smartblinds.
2. Smartblinds gives two (2) years’ warranty on the items it supplies. The warranty period starts on the delivery date as referred to in article 7 of these general terms and conditions, this means that the items, during that period, will be free of defects in the case of normal use.
3. Insofar as the order or parts thereof are sourced, by Smartblinds, from third parties, or if work was performed by third parties, only the warranty of the respective third parties applies.
4. Any complaints under the warranty must be submitted in writing by the customer to Smartblinds within two (2) months after the time the defect, flaw and/or damage is discovered or reasonably should have been discovered. The warranty shall only apply if the customer has fulfilled all its obligations with respect to Smartblinds (both financial and otherwise, and under any agreement whatsoever). Small, commercially permissible deviations in quality, colour, hardness, finish, sizes, workmanship, etc. are excluded from the warranty.
5. The item in question must then be submitted by the customer to Smartblinds for inspection by returning it (or parts thereof) within fourteen (14) calendar days after the written notification referred to in paragraph 4 of this article.The warranty obligations of Smartblinds, at the sole discretion of Smartblinds, shall be limited to repairing or replacing, within a reasonable period, the items (or portion thereof concerned) free of charge or refunding the customer for the items (or portion concerned), insofar as this has been paid to Smartblinds, taking into account the period of use for the items (or portion concerned) which has already lapsed. If the item consists of motors, Smartblinds will refund only the customer.
6. The item replaced by or on behalf of Smartblinds shall be the property of the latter and shall, upon request, be returned by the customer to Smartblinds at the expense of the latter. The least expensive form of transportation shall always be selected, in consultation with Smartblinds.
7. Work and costs due to the investigation or repair, related to or arising from improper use of the supplied items are not part of the obligations of Smartblinds, are not covered by the warranty and are charged separately to the customer at the time of performing such work at Smartblinds, or the subsidiaries and/or third parties it has engaged.
8. Smartblinds’ warranty obligations will not apply if the customer has not used, applied or fitted the items in accordance with the supplied manual, or has used, applied, fitted or stored the item in a manner that is incorrect or is otherwise at odds with normal usage. Smartblinds’ warranty obligations will also not apply if the item has been used, applied, fitted or stored in conditions that were excessively damp or under extreme temperatures. If the item consists of motors, as referred to in paragraph 3 of this article, the warranty obligations will also be invalidated if the warranty seal has been broken or the motors have been tinkered with.
9. If, following inspection, it transpires that this warranty has been invoked unjustly, the resulting transportation, inspection or repair costs incurred by Smartblinds will be charged to the customer.

Article 15 Liability of and indemnification by the customer

1. If the customer does not, does not in a timely manner or does not completely fulfil one or more of its obligations ensuing from the law, the agreement and/or these general terms and conditions, the customer must always compensate Smartblinds for all direct and indirect damage which Smartblinds suffers as a result, without any notice of default being necessary. This provision shall not affect Smartblinds’ right to institute other claims (for example, for specific performance) against the customer and/or take other legal measures (for example, rescission). Indirect damage shall mean: lost profits and/or income, incurring production or other losses, the costs of or related to stoppages or delays, penalties/fines and losing discounts and/or payments from third parties, all of this in the broadest sense of the word.
2. The customer shall be liable with respect to Smartblinds for all direct and indirect damage caused to Smartblinds (or its employees) or to persons other than the Parties, or the property of Smartblinds or of persons other than the Parties (or their employees), which damage is caused by the customer (or its employees), by persons other than the Parties that are engaged by the customer and/or materials used by it or relating to this, or which damage results from or relates to an unsafe situation in the customer’s organisation.
3. The customer shall indemnify Smartblinds against all claims by others besides the Parties arising from: - the infringement of intellectual property rights, including: patent rights, trademark rights, design rights and copyrights to the items, designs, licences, as well as know-how and information; - the actions of the customer or its subordinates, or other persons employed by or on behalf of the customer.

Article 16 Smartblinds’ liability

1. Smartblinds shall only be liable for direct damage (to persons and/or property) suffered by the customer, insofar as such direct damage (to persons and/or property) is directly and solely the result of a breach by Smartblinds, with the understanding that only that direct damage (to persons and/or property) for which Smartblinds may claim a benefit under the insurance taken out by it shall be eligible for compensation.
2. For any right to compensation to arise, the customer must, when defects, flaws and/or damage arise, always report this to Smartblinds, in detail and in writing, as soon as reasonably possible, and in any event within two (2) months after the defect, flaw and/or damage occurs, and the customer must do everything which may reasonably be expected of it to limit its damage.
3. Without prejudice to the foregoing, the provisions limiting Smartblinds’ liability in these general terms and conditions do not apply if the liability concerns damage caused by deliberate intent or deliberate recklessness on the part of Smartblinds or its management.

Article 17 Force majeure and Smartblinds’ right to suspend performance

1. ‘Force majeure’ shall mean: a failure to perform on Smartblinds’ part which is not its fault nor for which it should otherwise be held responsible and which results in performance of the agreement being impeded temporarily or permanently. This includes, but is not limited to, measures, laws or decisions of international, national or regional government or other agencies, wars (or threats of war), embargoes, riots, employee strikes, employee lock-outs, manufacturing and transport problems, fires, lightning strikes, natural disasters, water damage, power breakdowns, breakdowns in telecommunication and other communication lines, pandemics, epidemics and other serious disruptions in Smartblinds’ or its suppliers’ businesses.
2. If it is clear that the force majeure situation on the side of Smartblinds or one of the third parties engaged by it will last three (3) months or longer, each of the Parties shall be entitled to terminate the agreement early, without observing any notice period. Termination as referred to in this article shall take place in writing.
3. A situation of force majeure for Smartblinds or for one or more of the other persons whose services are used by Smartblinds, third parties or suppliers engaged by Smartblinds shall suspend its obligations under the agreement for as long as the situation lasts. This force majeure situation shall not suspend the customer’s obligations under the agreement.
4. Smartblinds shall not be liable for and shall therefore not be obliged to compensate direct and/or indirect damage, costs and/or losses suffered by the customer and/or third parties, which direct and/or indirect damage is caused by or relates in any way to the force majeure situation on the side Smartblinds or one of the other persons whose services are used by Smartblinds, third parties or suppliers engaged by it.

Article 18 Dissolution of agreement

1. The customer shall be in default by operation of law if it: - breaches any obligation under the agreement and/or these general terms and conditions; - is put into liquidation, files a petition for liquidation or a petition for its liquidation is filed, requests or obtains a suspension of payments or a statutory debt rescheduling scheme (Debt Rescheduling (Natural Persons) Act (WSNP, wet schuldsanering natuurlijke personen)), or application thereof is requested, or transfers its business operations or control of its business, loses its legal personality, or is dissolved or wound up.
2. In the situation referred to in paragraph 1, Smartblinds shall be entitled to terminate the agreement in whole or in part unilaterally, without a notice of default or judicial intervention, and without Smartblinds being obliged to pay any compensation and without prejudice to Smartblinds’ other rights, including the right to full compensation of all its direct and/or indirect damage. Dissolution of the agreement within the meaning of this article shall occur in writing.
3. If the customer dies, is placed under guardianship, or relocates to another country and, in the case of a company, the customer changes its place of residence to another country, the rights mentioned in the previous paragraph of this article will also accrue to Smartblinds.
4. If, at the time of dissolution referred to in this article, the customer has already received the item(s) as part of execution of the agreement, these items and the related payment obligation(s) shall not be cancelled. Amounts that Smartblinds has invoiced before rescission in connection with what it has already performed and/or delivered in execution of the agreement, remain fully due and payable immediately at the time of dissolution.

Article 19 Intellectual property rights

1. All rights, including but not limited to intellectual property rights, concerning or related to the order, designs and know-how, in the context of any information provided between Smartblinds and the customer and other services performed and/or work in the broadest sense of the word (hereinafter: "IP rights"), are exclusively vested in Smartblinds or, if applicable, its licensor(s).
2. In the event that a third party is the beneficiary of the IP rights and this third party directly or indirectly attaches conditions to the use thereof by the customer, the customer shall always comply with these conditions. At the written request of the customer, Smartblinds will inform the customer about such conditions.
3. The customer will only obtain user rights insofar as these are explicitly allocated to the customer. This allocation may take place through these general terms and conditions, or through another agreement between Smartblinds and the customer.

Article 20 Interpretation

1. Smartblinds may invoke these general terms and conditions, for whatever reason and regardless of by whomever it is held liable.
2. If one or more provisions of the agreement or of these general terms and conditions turn out to not be or no longer to be legally valid, the other provisions of the agreement and these general terms and conditions shall remain in effect. The provisions which are not or no longer legally valid shall be replaced with provisions which are as consistent as possible with the tenor of the provisions to be replaced.
3. In the event of a conflict with non-mandatory provisions under statutes and/or treaties, the content of these general terms and conditions shall prevail.
4. These general terms and conditions have been translated into German, Spanish and English. If there is a conflict between the provisions or interpretation of the general terms and conditions written in Dutch and the general terms and conditions translated into German, Spanish and English, the Dutch text shall be the starting point and as such, shall prevail over the general terms and conditions translated into German, Spanish and English.
5. The fact that Smartblinds does not demand strict compliance with these general terms and conditions in all circumstances shall not, in any way, imply that Smartblinds waves the right to demand strict compliance in any case.
6. If the law, the agreement or these general terms and conditions stipulate a written form, then this form is also met with electronic messages, such as email or the Smartblinds portal. The Smartblinds system is decisive in determining the content and the receipt of messages electronically.

Article 21 Applicable law and disputes

1. These general terms and conditions and all offers and agreements to which they apply shall be governed by Dutch law. The Vienna Sales Convention 1980 (CISG) does not apply.
2. All disputes arising in connection with the offer and/or agreement or a later agreement to which these general terms and conditions apply, shall be exclusively settled by the competent court in the place of residence of the customer.

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