BYKAY – GENERAL TERMS AND CONDITIONS
§1 Manufacturer and copyright
1. The private company with limited liability ByKay BV¹ (hereinafter: ByKay) is the designer and manufacturer of ergonomic baby carriers, accessories and related products (hereinafter: the Products) made according to a specific design, consisting of materials that are 100% safe for babies, such as Oeko-Tex100 certified cotton. The Products are made under Fairtrade conditions, which are fully supervised and child-labour free.
2. With regard to the Products and also to the production methods, ByKay explicitly reserves all rights to and arising from intellectual property, such as the rights to designs, copyrights and patents.
3. The Products that are manufactured and/or delivered by ByKay are finished products which are not suitable for further processing. A further processing of the Products by combining, mixing or any other method of further processing, is not admissible. Further processing may be exceptionally granted in writing and in advance by ByKay. In case the Other Party further processes the Products that are manufactured and/or delivered by ByKay, liability for ByKay is excluded. In no case ByKay shall be held liable for damages caused by further processing.
¹ Registration number Chamber of Commerce 50074709 VAT number NL 8225.31.914.B01
§ 2 Durability and exclusiveness ByKay sells and delivers the Products to resellers and distributors (hereinafter the Other Party) at home and abroad according to these general Terms and Conditions, unless otherwise agreed upon in a separate Contract made with the Other Party, in which the durability of the trading relationship and the exclusive right of reselling and distributing outside the country of residence determined by ByKay, is agreed upon.
§ 3 Preclusion of liability
1. ByKay precludes all liability in general and specific for incorrect or irresponsible use of the Products.
2. The Other Party is obliged to supply the user instructions delivered with the Products to resellers or end users and to point out to the resellers and end users that the correct and safe use of the Products is their own responsibility.
3. In case of material defects, the Other Party is liable to the consumer according to the effective legal provisions.
§ 4 Orders and pricing
1. Orders placed with ByKay shall only be binding if they have been issued in writing by the Other Party, or, in case such a confirmation is lacking, if the Order has been carried out by ByKay. A confirmation in writing of the Order makes a full purchase of the supplied Products mandatory.
2. The Other Party is obliged to pay the total amount, within 15 calendar days after receipt of the relevant invoice, unless otherwise agreed upon with ByKay.
3. Preceding the Order, the Other Party shall be obliged to fully inform ByKay about the quality standards or specifications used by him insofar as these are deviating from these General Terms and Conditions, in default of which – if this appears to be the case after the Order was accepted – ByKay is entitled to cancel the Order without the Other party being able to lay any claim to compensation in whatever capacity.
4. Non-functional differences between the Order casu quo the description of the Products, and the actual realisation of the Products do not give the Other Party the right to lay a claim to compensation, in any form, or in any capacity.
5. The Products’ prices are based upon the price-making factors prevailing for ByKay on the Order’s date. If prices are increased as a result of these price-making factors after confirmation of the Order, even if this increase is due to foreseeable circumstances at the time of the Order confirmation, ByKay is entitled to increase prices accordingly, this price increase being binding for the Other Party.
§ 5 Delivery and payment
1. On delivery of the Order, ByKay is entitled to increase or reduce the number of ordered Products by a margin of 5%, if the manufacturing circumstances of the Products give cause to do so. In case ByKay exercises this right, the Other Party shall be notified of this fact in writing and the price of the Order shall be adjusted accordingly.
2. The delivery period starts on the date on which the Order confirmation is received in writing by ByKay. The standard delivery period of the ordered Products is within 6 weeks.
3. In case agreed delivery periods are exceeded for whatever reason, there shall be no entitlement to payment of damages, unless an agreement in writing was made to this effect.
4. ByKay is entitled to split an Order into partial deliveries and to invoice them accordingly, while the right to demand payment per invoiced partial delivery remains valid pursuant to the prevailing terms of payment.
5. From the moment the Products are ready for delivery, any risk to the Products is for the Other Party. The delivery of the Products is taken care of by ByKay according to a previously agreed shipping and payment method, while the risks involved are for the Other Party, unless otherwise agreed.
6. Unless otherwise agreed, payment is due by bank transfer within 15 calendar days after the invoice date. If no payment has been forthcoming within this term of payment, ByKay is entitled as from the end of this period and without proof of default, to charge compensation for loss of interest over the outstanding amount of 10% per annum, or the legal interest – should the latter be higher.
7. Furthermore, besides the purchase price and interest, ByKay is entitled to reclaim from the Other Party all collection costs which are caused by non-payment, both the judicial collection costs and the extrajudicial collection costs. Extrajudicial collection costs are owed by the Other Party in each case in which ByKay has secured the cooperation of a third party to demand payment.
§ 6 Retention of title
1. So long as the Other Party has not fully paid the due agreed amount, all Products remain the property of ByKay.
2. In case the Other Party does not comply with any of the obligations towards ByKay that are stated in these General Terms and Conditions or in a separate written Contract, ByKay is entitled without default to take back the Products, in which case the Agreement is nullified even without judicial intervention and without prejudice to ByKay’s claim to compensation, lost profits and interest.
3. The Products under retention of title may neither be pledged to third parties nor transferred as a guarantee before payment in full of the secured receivables. The Other Party shall immediately inform us in writing in the event of any third-party seizure of the goods owned by ByKay.
§ 7 Service and warranty
1. Unless otherwise agreed in writing, ByKay guarantees that the placed Order is carried out to the best of its ability by administering sufficient care and competence.
2. Defects in the quality of (parts of the) delivered Order give the Other Party the right to return (parts of the) Order, after which ByKay makes sure that either the returned products are replaced or defects are repaired, or – this is to the discretion of ByKay – that the price of the returned products is refunded.
3. The warranty period is 12 months.
4. The Other Party’s claims arising from defects are dependent upon the Othe Party having met his statutory obligations to inspect and give notice of defects. Irrespective of his obligation to inspect and give notice of defects, the Other Party must report obvious defects (including wrong and short delivery) in writing within 2 days of receipt of goods. Should the Other Party fail to conduct proper inspection and/or report defects, ByKay shall not be liable for any defect not reported.
5. Return shipments will not be accepted without prior approval. Customised articles, opened packs and goods that are no longer saleable, are excluded from returns. If the complaints are justified, ByKay undertakes at its own discretion to carry out repairs or to deliver replacement Products free from defects as soon as possible.
§ 8 Special circumstances (Other Party) and circumstances beyond one’s control (ByKay)
1. The demand for payment can be made immediately if the Other Party is declared bankrupt, applies for a moratorium or if complete possession is taken of his assets, if the Other Party passes away and furthermore if the Other Party goes into liquidation or is dissolved.
2. Under the circumstances mentioned in subsection 1, ByKay also has the right to terminate or postpone the Order or that part of the Order that has not yet been carried out, without proof of default or judicial intervention, and without prejudice to ByKay’s right to demand compensation for any damage that has arisen as a result of these circumstances.
3. If one of the circumstances mentioned above occurs, ByKay has the right to demand immediately and in advance the full purchase price of the Products or to demand a guarantee for the agreed price, which is to the discretion of ByKay.
4. In case of circumstances beyond ByKay’s control, which in any case are understood to mean domestic riots, mobilization, war, blocked transportation, strikes, exclusion, interruption of operations, a hitch in supplies, fire, flooding, import and export blockages, and in case ByKay is unable to deliver the Products through fault of its own suppliers for whatever reason, as a result of which compliance with the General Terms and Conditions, and casu quo execution of the Order cannot reasonably be demanded, the execution can be postponed or the Order be cancelled by ByKay, all without any obligation to pay damages.
§ 9 Range of application
1. These General Terms and Conditions apply to all ByKay Orders and deliveries, unless otherwise agreed upon in a separate Contract.
2. If the Other Party includes stipulations or conditions in the Order that deviate (or are absent) from these General Terms and Conditions, they can only be binding for ByKay if and insofar as they have been explicitly accepted by ByKay in writing.
3. The legal invalidity of one or more provisions of these General Terms and/or in the Contract shall in no way affect the validity of the remaining provisions.
§ 10 Applicable law and competent judge These General Terms and the Order are subject to Dutch Law. In the first instance, the Arnhem Court of Law in The Netherlands has the authority to judge any disputes that arise.