GENERAL TERMS AND CONDITIONS TROBLA
Trobla is registered in the Commercial Register under number 60506148
Article 1. General
In these terms and conditions the following words shall have the following meaning:
- SEOW: a one-man business under Dutch law, with its registered office in Amsterdam, The Netherlands, acting in this matter under the name Trobla, with the objective of offering and selling (long-distance on the website trobla.nl) acoustic amplifiers for smartphones to consumers, all of this in the broadest sense of the word, hereinafter to be called: “Trobla”;
- Consumer: the natural person who is not acting in a professional or business capacity and who enters into a long-distance agreement with Trobla, hereinafter to be called: “Consumer”;
- Long-distance agreement: an agreement by which, within the scope of the system organised by Trobla to sell products long-distance, up to and including the conclusion of the agreement, only one or more long-distance communication methods are used, hereinafter to be called: “Agreement”;
- Cooling-off period: the period within which the Consumer can use his right of withdrawal, hereinafter to be called: “Cooling-off Period”;
- Right of withdrawal: the possibility for the Consumer to withdraw from the Agreement within the Cooling-off Period, hereinafter to be called: “Right of Withdrawal”;
- Day: calendar day, hereinafter to be called: “Day”;
- General terms and conditions: these general terms and conditions, hereinafter to be called: “General Terms and Conditions”.
Article 2. Applicability
- The General Terms and Conditions apply to all offers and quotations by Trobla and to all Agreements concluded between Trobla and the Consumer.
- Before the Agreement is concluded the text of the General Terms and Conditions shall be provided to the Consumer. If this is not possible in all reasonableness before the Agreement is concluded, the Consumer shall be advised that the General Terms and Conditions can be inspected at Trobla and shall be sent to the Consumer as soon as possible without charge (electronically) at the Consumer’s request.
- To the extent that, apart from the General Terms and Conditions, specific product and/or services terms and conditions apply, the second paragraph of this article shall apply accordingly and in case of contradictory general terms and conditions, the Consumer can always invoke the condition most favourable to him.
- The General Terms and Conditions are also stipulated for those (legal) entities and third parties that are of have been involved, directly or indirectly, with Trobla.
- Any deviation from the General Terms and Conditions are only possible if the parties have explicitly agreed to this in writing in advance.
- If any stipulation in the General Terms and Conditions is invalid or nullified, the other stipulations shall remain in full effect, and the invalid or nullified stipulation(s) shall be replaced by (a) new legally valid condition(s), taking into account to the fullest extent possible the purpose and substance of the invalid or nullified stipulation(s).
- If the interpretation of one or more of the stipulations of the General Terms and Conditions are unclear, this stipulation/these stipulations shall be interpreted according to the spirit of the General Terms and Conditions.
- Situations not regulated in the General Terms and Conditions shall be assessed according to the spirit of the General Terms and Conditions.
- Trobla is entitled at all times to amend and/or add to the General Terms and Conditions. The possible impact of these amendments and/or additions shall be discussed with the Consumer in a timely manner.
- Also if Trobla does not always require strict compliance with the General Terms and Conditions, the General Terms and Conditions shall remain fully in effect, and Trobla retains the right to demand strict compliance with the General Terms and Conditions in other cases.
- Trobla uses Google Analytics to collect visitor statistics and draw up reports of such statistics, with the purpose to increase the user-friendliness of the website and coordinate this with the Consumer’s (purchase) behaviour. The information collected by Google is stored on Google servers. Trobla only has access to anonymized and aggregated data provided by reports in Google Analytics. Trobla cannot trace the identity or place of residence of the Consumer through these reports. The Google Analytics data are only for internal use and shall never be provided to third parties by Trobla.
Article 3. Offers and quotations
- If and to the extent that an offer and/or quotation has a limited term of validity or imposes certain conditions, this is stated explicitly in the offer and/or quotation. Trobla is bound by an offer and/or quotation if the Consumer has stated his acceptance thereof within the term of validity of the offer and/or quotation to Trobla.
- The offer shall contain a full and accurate description of the products offered. This description is detailed enough to enable the Consumer to properly assess the offer. If Trobla uses images, these are a true representation of the products offered. Images can only be used as an indication and the Consumer cannot derive any rights from these. This applies even more as the product is continually evolving to attain the best possible quality.
- Each offer contains the information required to clarify to the Consumer what rights and obligations are connected to acceptance of the offer. This applies specifically to:
• The price including taxes;
• Any delivery costs;
• The manner in which the Agreement is concluded and which acts are required for this;
• The applicability of the right of withdrawal;
• The manner of payment, delivery and execution of the Agreement; and
• The term for acceptance of the offer, respectively the term during which the Consumer guarantees the price.
- Trobla cannot be held to its offers or quotations, if the Consumer can in all reasonableness understand that the offers or quotations, respectively a part thereof, are an obvious mistake, typo or error.
- If the acceptance by the Consumer deviates from the offer included in the quotation, Trobla is not bound by this and, in accordance with the deviating acceptance, no Agreement shall be concluded, unless explicitly stated by Trobla.
Article 4. Agreement
- 1. The Agreement shall be concluded, subject to the stipulations in paragraph 4 of this article, at the time of acceptance by the Consumer of the offer and compliance with the stipulations therein.
- If the Consumer has accepted the Agreement electronically, Trobla shall confirm receipt of the acceptance of the offer electronically forthwith. As long as receipt of this acceptance has not been confirmed by Trobla, the Consumer can terminate the Agreement.
- If the Agreement is concluded electronically, Trobla shall take the appropriate technical and organizational measures to secure the electronic data transfer and shall ensure a secure web environment. If the Consumer pays electronically, Trobla shall take the appropriate security measures for such payment.
- Trobla can inquire – within the legal limits – whether the Consumer can comply with his payment obligations, as well as into all those facts and factors that are relevant to a responsible conclusion of the Agreement. If, based on this inquiry, Trobla has reasonable grounds to refrain from entering into the Agreement, Trobla is entitled to refuse an order or application, stating the reasons, or to impose special conditions on the execution.
- Trobla shall attach the following information when sending the product to the Consumer, either electronically or in writing:
• The visiting address of the Trobla location where the Consumer can submit any complaints;
• The conditions under which and the manner in which the Consumer can exercise his Right of Withdrawal, respectively a clear statement about the exclusion of the Right of Withdrawal;
• The information about services rendered after purchase and any guarantees;
• The data contained in article 3 paragraph 3 of the General Terms and Conditions, unless Trobla has already provided these data to the Consumer prior to the execution of the Agreement.
Article 5. Right of Withdrawal on delivery of products
- On purchase of the products, the Consumer has the option to terminate the Agreement in writing, without stating his reasons, during 14 days. This term commences on the day that the product is received by or on behalf of the Consumer.
- During this term the Consumer shall handle the product and the packaging with care. He shall only unpack or use the product insofar as necessary to assess whether he wants to keep the product. If the Consumer exercises his Right of Withdrawal, he shall return the delivered product and all the accessories to the product – if reasonably possible – in its original condition, to Trobla (Weteringschans 108, 1017 XS Amsterdam), in accordance with the reasonable and clear instructions provided by Trobla.
- If the Consumer uses his Right of Withdrawal, the costs and risk for the return shipment shall be to the account of the Consumer.
- If the Consumer has already paid an amount, Trobla shall reimburse this amount as soon as possible, but at least 14 days after the return shipment or withdrawal.
- Trobla is entitled to refuse returned items or only make partial reimbursements of the payments, if the products are not returned in their original packaging, respectively have been damaged or used.
Article 6. Exclusion Right of Withdrawal
- Trobla can exclude the Consumer’s Right of Withdrawal to the extent stipulated in paragraph 2 of this article. The exclusion of the Right of Withdrawal only applies if Trobla has clearly stated this in the offer, at least in a timely manner before conclusion of the Agreement.
- Exclusion of the Right of Withdrawal is only possible for those products:
• That were executed by Trobla in accordance with the Consumer’s specifications;
• That were clearly of a personal nature;
• That cannot be returned due to their nature;
• That can decay or become obsolete rapidly;
• Of which the price is bound to fluctuations on the financial market on which Trobla has no influence.
Article 7. Prices
- During the term of validity in the offer, the prices of the products offered shall not be increased, except for price changes due to changes in VAT rates.
- In deviation of the previous paragraph, Trobla can offer those products of which the price is bound to fluctuations on the financial market on which Trobla has no influence, at varying prices. This connection to fluctuations and the fact that the prices stated are recommended prices will be stated in the offer.
- Any price increases within 3 months after conclusion of the Agreement are only permitted if these are due to legal regulations or stipulations.
- Any price increases after 3 months after conclusion of the Agreement are only permitted, if Trobla has stipulated this, and:
a) These are due to legal regulations or stipulations; or
b) The Consumer is entitled to terminate the Agreement on the day that the price increase takes effect.
- The prices referred to in the offer for the products in the offer include VAT and exclude possible other costs, such as any shipping and administrative costs. These other costs will be listed separately on placing an order.
Article 8. Conformity and guarantee
- Trobla guarantees that the products comply with the Agreement, the specifications in the offer, the reasonable requirements of soundness and/or usability and the legal stipulations and/or government directives in effect on the date of conclusion of the Agreement, subject to the stipulations in article 3.2 of the General Terms and Conditions.
- A guarantee provided by Trobla, the manufacturer or the importer does not prejudice the legal rights or claims that the Consumer can enforce against Trobla based on the Agreement.
- The Consumer has to report any defect to the order on email@example.com within 14 days to be eligible for reimbursement.
- Any defect incurred, provided this is shown within 14 days on firstname.lastname@example.org , can be eligible for reimbursement.
- If the Consumer reports a defect to Trobla, the final assessment of whether or not there is a defect is reserved for Trobla.
Article 9. Execution and delivery
- Trobla shall take the utmost care in receiving and executing orders of products.
- The delivery location shall be the address of which the Consumer has informed Trobla.
- Taking into account the stipulations in article 3 of the General Terms and Conditions, Trobla shall execute the accepted orders promptly, but at least within 14 days, unless a longer delivery term has been agreed. If the delivery is delayed, or if an order can only be executed partially or not at all, the Consumer shall be informed about this, at least 14 days after he placed the order. In that case the Consumer is entitled to terminate the Agreement free of cost and to possible damage compensation. This option for termination does not apply to pre-orders as discussed in article 10 of the General Terms and Conditions.
- If the Agreement is terminated according to the previous paragraph, Trobla shall reimburse the amount paid by the Consumer as soon as possible, but no later than 14 days after termination.
- If delivery of an ordered product proves impossible, Trobla shall make every effort to make a replacement product available. No later than on delivery the Consumer shall be informed in a clear and understandable manner, that a replacement product is delivered. The right of withdrawal cannot be excluded for replacement products.
- Trobla has the risk of damage and/or loss of products until the time of delivery to the Consumer or an agent previously appointed of which Trobla has been notified, unless explicitly agreed otherwise.
Article 10. Pre-orders
It is possible to pre-order a product on the Trobla website (trobla.nl). This ensures the Consumer that he does not miss out on a product and has the product in his possession as soon as possible. Delivery times for pre-orders can change; Trobla shall always cite the last known delivery time on its website.
Article 11. Execution of the order
- Trobla is entitled to have certain work executed by third parties, if and to the extent required by compliance with the Agreement.
- Trobla bases the execution of the work on information and data provided by the Consumer. The Consumer is responsible for the correctness of this information and data. If facts and circumstances that could be relevant to compliance with the Agreement are altered, the Consumer is obliged to inform Trobla accordingly.
- An agreed term for delivery of products by Trobla is always a guideline and never a deadline, unless Trobla and the Consumer have explicitly agreed otherwise in writing.
Article 12. Altered circumstances
- Should the circumstances which the Consumer and Trobla assumed at the time of the conclusion of the Agreement alter to such an extent that compliance with (part of) the Agreement can no longer be reasonably be demanded from (one of) the parties, there shall be mutual consultation between the parties to amend the Agreement in the interim. If the altered circumstances can be attributed to the Consumer, any costs from these altered circumstances shall be charged to the Consumer.
- If the parties decide the alter the approach, methods or scope of the Agreement and the resulting work, the Consumer accepts that the time planning of the Agreement shall change if necessary.
Article 13. Payment
- If not agreed otherwise, the amounts owed by the Consumer shall be paid when placing the order on the Trobla website in a manner indicated by Trobla.
- If advance payment is required, the Consumer cannot exercise any rights about the execution of the order concerned prior to effecting the advance payment.
- The Consumer is obliged to inform Trobla forthwith of any errors in the payment details provided or stated.
- In case of default of payment by the Consumer, Trobla is entitled, subject to legal restrictions, to charge all reasonable costs to the Consumer of which the Consumer has been notified in advance.
- Trobla has a retention right on all data, papers and other items held by Trobla until the Consumer has paid Trobla all amounts owed.
- Payments by the Consumer are always used, firstly, for all interests and costs owed and secondly for those due and payable invoices that have been outstanding the longest. This stipulation shall fully apply if on payment the Consumer refers to another, newer claim.
- If the financial position and/or the payment record of the Consumer warrants this, in the opinion of Trobla, Trobla is entitled to demand from the Consumer that the Consumer provides (additional) security forthwith, in a format to be determined by Trobla and/or makes an advance payment. If the Consumer refuses and/or refrains from providing the demanded security, Trobla is entitled, without prejudice to any other rights, to suspend further execution of the Agreement and all amounts that the Consumer owes Trobla for whatever reason, are immediately due and payable.
- If the Consumer is liquidated, declared bankrupt or enters into the Debt Management Scheme for Natural Persons, the claims by Trobla and the obligations of the Consumer towards Trobla are immediately due and claimable.
Article 14. Retention of title
- Trobla retains the title of all products delivered and to be delivered in accordance with the Agreement until such time that the Consumer has complied with his payment obligations towards Trobla.
- The payment obligation referred to in paragraph 1 of this article is the payment of the purchase price for all products delivered and to be delivered, increased with the costs incurred if the Consumer is no longer capable to comply with his payment obligations, including damage compensation, extrajudicial (collection) costs, interest and possible penalties.
- As long as there is retention of title for products delivered, the Consumer is prohibited from pledging these products or establishing any other (security) rights on the products for third parties.
- The Consumer is obliged to mark all products for which Trobla still has a retention right as such, until the time that he has complied with all his payment obligations.
Article 15. Intellectual property
- Trobla retains all intellectual property rights for those products of the mind that Trobla uses (has used) and/or developed in the scope of the execution of the Agreement.
- The Consumer is explicitly prohibited from, directly or indirectly, in the broadest sense of the word, multiplying and/or operating any products of Trobla. If the Agreement is terminated in the interim, the aforementioned applies accordingly.
Article 16. Suspension, termination and (interim) notice of termination
- Trobla is entitled to suspend (further) execution of the Agreement if the Consumer fails to comply with the payment conditions or with his other obligations, this without prejudice to the right of Trobla to claim damage compensation.
- Agreements can be terminated in the interim by consent of Trobla and in accordance with the stipulations in this article.
- In case of termination in the interim Trobla remains entitled to payment of the invoices for products delivered until that time. Any advance payment shall be reimbursed in mutual consultation, if reasonably required in proportion.
- Trobla is entitled to terminate the Agreement if circumstances occur of such nature that compliance with the Agreement is (permanently) impossible or if otherwise circumstances occur of such a nature that unaltered maintenance of the Agreement cannot be demanded from Trobla.
- If the Agreement is terminated, the claims of Trobla on the Consumer are immediately due and claimable. If Trobla suspends compliance with its obligations, Trobla retains its claims under the law and the Agreement.
- If Trobla proceeds with suspension or termination, it is in no way obliged to compensate the resulting damage and costs.
- Trobla is entitled to compensation of damage, including directly and indirectly occurring costs, if the termination can be attributed to the Consumer.
- If the Consumer fails to comply with his obligations towards Trobla under the Agreement, and this noncompliance is a justification for termination, Trobla is entitled to immediately and forthwith terminate the Agreement, without any obligation for Trobla to pay any damages or other compensation, whereas the Consumer is obliged, due to his noncompliance, to pay damages or other compensation.
- In case of liquidation, bankruptcy, attachment – if and to the extent that the attachment is not lifted within three months – or if the Consumer enters into the Debt Management Scheme for Natural Persons, Trobla is free to terminate the Agreement forthwith and with immediate effect, without any obligation by Trobla to pay any damages or other compensation. Any judicial intervention, respectively notice of default is not required. The claims by Trobla on the Consumer are in that case immediately due and claimable.
Article 17. Complaints procedure
- Trobla has a complaints procedure and handles any complaints received on email@example.com in accordance with this procedure.
- All complaints about the execution of the Agreement by Trobla shall be submitted in writing to Trobla with a full and clear description, within 14 days after the Consumer has found the defects. After the aforementioned term has expired, the Consumer shall be considered to have accepted the products delivered and/or the invoices received.
- Any complaints submitted to Trobla shall be answered within a term of 14 days after receipt thereof. If a complaint requires an anticipated longer processing time, Trobla shall respond within the 14-day term with a notice of receipt and an indication when the Consumer can expect a fuller answer.
- If the complaint is justified, Trobla reserves the right to choose either to deliver a new product, reimburse the purchase price paid by the Consumer or adjust the purchase price charged.
- If the complaint submitted by the Consumer is found to be unjustified, the related costs, including investigation costs incurred by Trobla, shall be to the account of the Consumer.
Article 18. Liability
- Trobla is only liable to the extent ensuing from this article. The limited liability of Trobla in this article does not apply if the damage can be attributed to wilful conduct and/or gross negligence by Trobla and/or its employee(s).
- Trobla is never liable for any personal, physical or general damage resulting from the use of the products by the Consumer or third parties.
- The Consumer is obliged to take all measures required to prevent or limit damage.
- Trobla is not liable for damage caused by another use of the products than for which these were originally intended.
- The Consumer is explicitly aware of the fact that the product, by its nature, can deviate from any expectations that the Consumer may have had of the product in advance.
- If the delivery time for pre-orders, as stated in article 10 of the General Terms and Conditions, deviates from the delivery time cited by Trobla on its website, Trobla is never liable for that deviation.
- Trobla is liable towards the Consumer for a failure in compliance with the Agreement, to the extent that this failure consists of not exercising the carefulness and expertise in the execution of the Agreement on which the Consumer can rely.
- Trobla is not liable for any damage occurring at the Consumer or third parties, if this damage is caused by the acts or negligence of any agent engaged by Trobla (this does not include Trobla’s employees).
- If there is an error because the Consumer provided Trobla with incorrect or incomplete information, Trobla is not liable for any occurring damage.
- In cases of force majeure, as defined in article 19 of the General Terms and Conditions, Trobla is not liable.
- Liability of Trobla for any indirect damage, including consequential loss, loss of profits, missed savings and damage due to business interruption, is excluded at all times. Trobla can only be held liable for direct damage caused by attributable failure in compliance with the obligation(s) under the Agreement. Direct damage means the reasonable costs incurred to determine the cause and the extent of the damage, to the extent that this determination concerns damage defined in the General Terms and Conditions, possible reasonable costs incurred to have the inadequate performance by Trobla comply with the Agreement, to the extent that this can be attributed to Trobla, and reasonable costs incurred to prevent or limit the damage, to the extent that the Consumer can show that these costs were incurred to limit the direct damage as defined in the General Terms and Conditions.
- The liability of Trobla for noncompliance with the Agreement, as well as for a wrongful act, is limited to the amount that the Consumer paid and/or still owes to Trobla for the ordered products, for the event that caused the damage to which the liability applies or is related, with a maximum – if this is higher and to the extent this applies – also to the amount of costs incurred by the Consumer, which costs are inextricably related to the noncompliance respectively the wrongful act.
- The Consumer shall submit a claim for damage compensation to Trobla no later than twelve months after the Consumer has found the damage. If the Consumer fails to do so, the right to damage compensation is nullified.
Article 19. Force majeure
- Trobla is not obliged to comply with any obligation if Trobla is hampered from doing so due to a circumstance which cannot attributed to Trobla, and for which Trobla cannot be held accountable under the law, a legal act or by common opinion.
- During the period that the force majeure continues, Trobla can suspend its obligations under the Agreement between Trobla and the Consumer. If this period lasts longer than two months, either party is entitled to terminate the Agreement without any obligation to pay damage compensation to the other party. If the aforementioned situation commences when the Agreement has been partially executed, the Consumer is obliged to comply with its obligations towards Trobla until that time. In such a case Trobla is entitled to separately invoice the part already complied with, respectively to be complied with. The Consumer is obliged to pay that invoice as if it were a separate Agreement.
- In the General Terms and Conditions ‘force majeure’ means, apart from the meanings defined in the law and in case law, all external causes, anticipated or unanticipated, on which Trobla has no influence or could reasonably have had no influence, which renders compliance of Trobla with its obligations impossible. This includes labour strikes at Trobla. Trobla is also entitled to invoke force majeure if the circumstance that renders (further) compliance with the Agreement (permanently) impossible., occurs after Trobla should have complied with its obligations.
Article 20. Applicable law and competent court
- The laws of The Netherlands shall apply exclusively to all legal relationships in which Trobla is involved, also if an Agreement is executed entirely or partially abroad or if the party involved in the legal relationship resides abroad.
- All disputes between Trobla and the Consumer which may arise and for which no solution can be reached in mutual consultation, shall exclusively be submitted to the competent court in the place of business of Trobla, Amsterdam, therefore the court of Amsterdam. Nevertheless Trobla is entitled to submit the dispute to the court that is legally competent.
- Both Trobla and the Consumer shall only appeal to the court after they have made every effort to resolve the dispute in mutual consultation.
Article 21. Site and amendment of the General Terms and Conditions
- The General Terms and Conditions have been published on the Trobla website and shall be provided to the Consumer free of charge on conclusion of an Agreement.
- The latest filed version, or, as the case may be, the version in effect at the time of the conclusion of the Agreement with Trobla, shall always apply.
- The Dutch text of the General Terms and Conditions always prevails in interpreting the General Terms and Conditions.
Trobla | CoC 60506148 | trobla.nl | © Trobla | 18 januari 2016