Terms and conditions
I. General part
ARTICLE 1. | DEFINITIONS
In these general conditions, the following terms, also where declined in the singular or the plural respectively, are used in the meaning as described below, to the extent it does not flow differently from the nature or tenor of the provisions.
1. Bimaldi: the user of these general conditions, established on Europalaan 6-B, 5232BC in ‘s-Hertogenbosch, listed in the Trade Register under Chamber of Commerce number 66602645.
2. Buyer: every natural or legal person with whom Bimaldi has concluded or intends to conclude an agreement.
3. Consumer: a buyer as intended in the preceding section, a natural person, not acting from the exercise of a profession or business.
4. Agreement: every purchase agreement concluded between Bimaldi and the buyer by which Bimaldi has committed itself towards the buyer, against payment, to deliver products.
5. Products: the matters to be delivered in the context of the agreement by Bimaldi to the buyer, whereby may be intended, non-exhaustively: clothing such as trousers, vests, T-shirts, polos, and coats, as well as shoes, leather wear and accessories.
6. Web shop/website: bimaldi.com.
7. Written: communications in writing, communications by e-mail or any other manner of communication which, with an eye on the state of the art and commonly held opinion, can be equated with it.
ARTICLE 2. | GENERAL PROVISIONS
1. These general conditions are applicable to every offer of Bimaldi and to each concluded agreement.
2. The applicability of any possible purchasing or differently defined general conditions of the buyer, is emphatically rejected.
3. What is stipulated in these general conditions can exclusively be deviated from emphatically in writing. If and to the extent what parties have emphatically established in writing deviates from what is stipulated in these general conditions, only what parties have agreed on emphatically in writing applies.
4. The annulling or voidness of one or more of the provisions from these general conditions or the agreement as such, leaves unaffected the validity of the remaining provisions. In such case as may occur, parties are obligated to enter into mutual consultation in order to make a substitute arrangement with regard to the impaired clause. The purpose and tenor of the original provision are thereby observed as much as possible.
ARTICLE 3. | OFFER AND ADOPTION OF AGREEMENTS
1. Every proposal directed at the buyer of Bimaldi is non-committal, also in the event a term for acceptance is indicated in it. Bimaldi can still revoke its offer until immediately, or at least as soon as possible, after its acceptance by the buyer.
2. The buyer cannot derive any rights from an offer of Bimaldi which contains an apparent error or mistake.
3. An offer of Bimaldi does not automatically apply to follow-up agreements. To the extent no modifications are applied to them, these general conditions, on the other hand, are applicable to follow-up agreements, without Bimaldi being bound to present these general conditions to the buyer anew every time.
4. A compound price quotation never obliges Bimaldi to fulfil a part of the offer against a corresponding part of the quoted price.
5. Every agreement is concluded, without prejudice to what is stipulated in section 1, through offer and acceptance. If the acceptance of the buyer deviates from the offer of Bimaldi, the agreement is not concluded in conformity with this deviating acceptance, unless Bimaldi indicates otherwise.
6. If the buyer places an order verbally, for example telephonically, the agreement is not concluded before Bimaldi has accepted it by e-mail or otherwise in writing.
ARTICLE 4. | CUSTOMISED ORDERS
1. In case the order is manufactured to any degree in accordance with specifications of the buyer, the buyer guarantees that he will within a reasonable term provide Bimaldi with all information, such as regarding colour or design, which can reasonably be relevant for the implementation of the order, completely and in the manner indicated for this by Bimaldi.
2. Customised orders are based on the specifications provided by the buyer. The buyer guarantees the accuracy of the specifications provided by him for the implementation of customised orders. Bimaldi is never liable for damage which has occurred because for the manufacturing of customised orders they relied on inaccurate or incomplete information provided by the buyer.
ARTICLE 5. | DELIVERY OF THE PRODUCTS
1. The delivery of the products takes place in the established place and manner. In case of the delivery of the products, this takes place at the delivery address indicated by the buyer. In case the buyer has not stated a delivery address, the invoice address counts as the delivery address.
2. The risk of the loss and damaging of the products passes to the buyer at the moment that Bimaldi makes available the products to the buyer in accordance with the agreement. If the buyer is a consumer. The risk of loss and damaging of the products, however, never passes to the consumer before the products have been received by or on behalf of the buyer.
3. Bimaldi reserves itself the right to deliver orders in batches. In case orders are delivered in batches, Bimaldi is authorised to invoice each batch separately. In case orders are delivered in batches, the response time of the consumer in connection with the right of rescission, as intended in article 19, only commences at the moment that the last partial delivery from the order has been received by or on behalf of the consumer.
4. The buyer is obliged to take the products at the moment when they are made available to the buyer. If the buyer refuses to take the products or refuses to collaborate thereto, they will be stored at the expense of the buyer. The buyer in such case owes, from the established date of delivery onwards, all additional costs, including storage costs. The risk of this storage from the established date of delivery is entirely at the risk of the buyer, and such without prejudice to what is stipulated in the last sentence of section 2.
ARTICLE 6. | DELIVERY TERMS
1. Bimaldi exerts itself to observe the delivery terms it has committed to towards the buyer, but these terms are only indicative, non-fatal terms. The default of Bimaldi does not enter into effect any sooner than the buyer Bimaldi has declared their default in writing, in which default notice a reasonable term for compliance is indicated and Bimaldi after expiry of said term has still failed to comply.
2. If Bimaldi due to circumstances which were not known to them upon conclusion of the agreement is unable to comply with an established delivery term, then Bimaldi has the right to suspend the agreement without Bimaldi being held to any compensation of damages, other than a proportional refund or remission.
ARTICLE 7. | INVESTIGATION AND COMPLAINTS
1. The buyer must investigate the products upon delivery, or as soon afterwards as is possible. Hereby, the buyer must determine whether the products correspond with the agreement, meaning whether the right products were delivered, whether the products are compliant with the established quality requirements or, in their absence, with such requirements as may be set for the normal use of the products, and/or whether also the quantity corresponds with the arrangements which were made.
2. Defects or shortages of the products must be reported by the buyer no later than within three business days after delivery, to Bimaldi in writing, failing which the buyer can no longer appeal to a defect or shortage.
3. Also in the event the buyer complains timely, the obligation of the buyer for payment and acceptance of made deliveries remains fully effective. Delivered products, barring what is stipulated in article 19, can only be returned after prior written permission to
4. What is stipulated in the preceding of this article leaves unaffected the mandatory legal rights of consumers, comprising, amongst other things, that the right to file legal claims or rebuttals in connection with the existence of a defect in the matter of a consumer purchase lapses if the consumer does not file complaint with Bimaldi concerning within two months after discovery of the defect.
ARTICLE 8. | CONFORMITY
1. Without prejudice to what is stipulated in article 19, exclusively products which manifest such defects to material and/or other errors attributable to Bimaldi that it cannot reasonably be demanded from the buyer to purchase those products, will be taken back by Bimaldi. On condition that these products which are to be taken back are forthwith returned to Bimaldi, the relevant invoice will be credited proportionally by Bimaldi.
2. The right of the buyer as intended in section 1 lapses at the moment when the products are put to use.
3. If the buyer appeals to what is stipulated in section 1, the buyer must enable Bimaldi to investigate the products, failing which any entitlement of the buyer concerning lapses.
4. If it turns out that the defective products can nevertheless by restored or replaced and Bimaldi makes use of this possibility to restore or replace, such will be considered as full indemnification on the part of Bimaldi.
5. Such warranty as may have been granted by Bimaldi, manufacturer, or importer in no way impairs the mandatory legal rights which consumers may exercise towards Bimaldi.
ARTICLE 9. | SPECIAL PROVISIONS FOR RESELLERS
1. In case the products to be delivered by Bimaldi are intended for resale by the buyer, resale takes place to purchasers of the buyer at the own expense and risk of the buyer.
2. Every collaboration between the reseller and Bimaldi, unless it has been emphatically established otherwise, never is exclusive; Bimaldi has the right without any geographical restrictions, to appoint multiple resellers of their products.
3. Bimaldi guarantees the buyer the constant, established quality of the delivered products. The buyer acting as the reseller of the products, is responsible himself for compliance with his legal obligations towards his final purchasers, such as with regard to the legal resellers’ obligations towards consumers.
4. Bimaldi grants the reseller the right to make use of the brand names and brand markings of Bimaldi, though exclusively to the extent and for as long as this must be considered reasonably permissible in the context of the resale of the products, and with due regard for what is stipulated in article 15.
5. It is not permitted to the reseller to remove any brand marking or name from the products or their packaging nor to change them, or to attach own (brand) markings or (brand) names to the products or their packaging.
ARTICLE 10. | FORCE MAJEURE
1. Bimaldi is not obliged to fulfil any obligation from the agreement if and for as long as he is prevented from doing so by a circumstance which cannot be attributed to them pursuant to the law, a legal action, or to commonly held opinion.
2. Bimaldi also has the right to appeal to force majeure if the circumstance which prevents (further) compliance enters into effect after Bimaldi should have fulfilled its contract
3. If the situation of force majeure renders compliance with the agreement permanently impossible, parties have the right to rescind the agreement with immediate effect.
4. If Bimaldi has already partially fulfilled its delivery obligations when the situation of force majeure becomes effective, or can only partially fulfil its delivery obligations, they have the right to separately invoice the part already delivered or the part of the agreement to be delivered respectively.
5. Damage as a result of force majeure, without prejudice to the application of the preceding section, is never eligible for compensation.
ARTICLE 11. | SUSPENSION AND RESCISSION
1. If the circumstances of the case justify such, Bimaldi is authorised to suspend the implementation of the agreement or to rescind the agreement completely or partially with immediate effect, if and to the extent the buyer does not, does not timely, or does not completely comply with his obligations from the agreement, or if after conclusion of the agreement circumstances come to the knowledge of Bimaldi which constitute legitimate grounds to fear that he will not comply with his obligations. If compliance with the obligations of the buyer with regard to which he falls short or threatens to fall short is not permanently impossible, the authority to rescind only arises after the buyer has been declared in default by Bimaldi in writing, in which default notice a reasonable term is stated within which the buyer can (still) fulfil his obligations and compliance has still failed to materialize after expiry of the latter term.
2. If the buyer is in a state of bankruptcy, has applied for (temporary) suspension of payment, a legal debt restructuring arrangement has been declared applicable to him, any attachment is placed on his goods or in cases in which the buyer otherwise cannot freely dispose of his assets, Bimaldi is authorised to rescind the agreement with immediate effect.
3. The buyer is never entitled to any type of compensation of damages in connection with the right of suspension or rescission exercised by Bimaldi pursuant to this article.
4. The buyer is obligated to compensate the damage which Bimaldi incurs as a consequence of the suspension or rescission of the agreement.
5. If Bimaldi rescinds the agreement, all claims on buyer become immediately.
ARTICLE 12. | PRICES AND PAYMENTS
1. Unless emphatically indicated otherwise by Bimaldi, all prices listed by Bimaldi are exclusive of VAT and exclusive of possible delivery costs. Before an agreement with a consumer is concluded, the total price is nevertheless listed, including VAT and any possible delivery costs.
2. In case price increases of cost-determining factors occur, such as of wages, purchase prices, material, and shipping costs, Bimaldi has the right to pass on these price increases to the buyer, under the proviso that a consumer has the right on those grounds to rescind the agreement if the price increase takes place within three months after conclusion of the agreement and Bimaldi at such stage still expressly indicates not to be willing to fulfil the agreement under the price conditions which were originally established. The afore-intended authority of the consumer to rescind the agreement, does not apply if the price increase is the result of increases in VAT or other government-imposed levies.
3. Bimaldi has the right to demand full or partial advance payment of what is owed by the buyer to Bimaldi. In case of a consumer purchase, Bimaldi will never constrain the consumer, however, to pay more than 50% of the purchase price in advance.
4. For as long as the buyer falls short towards Bimaldi in fulfilling a payment obligation he is subject to towards Bimaldi, Bimaldi is not bound to (further) implement the agreement.
5. Payment must take place in (one of) the manner(s) indicated by Bimaldi and within the term indicated or demanded by Bimaldi.
6. Payment must take place without any appeal to suspensions or set-offs, barring the extent to which the law opposes such in a mandatory manner for the benefit of the consumer.
7.If the buyer is in a state of bankruptcy, has applied for (temporary) suspension of payment, a legal debt restructuring arrangement has been declared applicable to him, any attachment has been placed on his goods, or in cases where the buyer is otherwise unable to freely dispose of his assets, all claims of Bimaldi on the buyer, are immediately exigible.
8. Bimaldi can suspend future deliveries for as long as the buyer has not fulfilled his obligations, including the payment obligation, with regard to deliveries which were already made. Bimaldi is furthermore authorised in those cases, as well as in the event Bimaldi may doubt the creditworthiness of the buyer on different grounds, to demand from the buyer that he will lodge a bank guarantee for the amount of the invoice value of the new delivery, before Bimaldi is bound to proceed with the new delivery or to further complete a pending order.
9. If timely payment fails to occur, the default of the buyer enters legally into effect. From the day that the default of the buyer becomes effective, the buyer owes over the outstanding amount an interest of 2% per month, whereby a part of a month is designated as an entire month. In derogation to the preceding sentence, instead of the contractual interest intended there, the statutory interest will apply if the buyer acts in the capacity of consumer.
10. All reasonable costs, such as judicial, extrajudicial and enforcement costs, incurred to obtain the amount owed by the buyer to Bimaldi, are borne by the buyer.
ARTICLE 13. | LIABILITY AND SAFEGUARDS
1. Without prejudice to what is stipulated in article 7 and 8, Bimaldi is no longer liable for any possible defects of the products after their delivery.
2. Bimaldi is never liable for consequential damage, whereby is also included loss of profit, incurred losses, and damage as a result of operational stagnation. Without prejudice to what is elsewhere stipulated in these general conditions and especially the provisions in section 4, Bimaldi can only be held accountable towards the buyer for direct damage which the buyer incurs as a result of an attributable shortcoming of Bimaldi in complying with their obligations from the agreement. By direct damage is exclusively intended:
– the reasonable costs incurred to determine the cause and extent of the damage, to the extent the determination regards damage which is eligible for compensation in the sense of these general conditions;
– the possible reasonable costs incurred to render the defective performance of Bimaldi compliant with the agreement, to the extent the defects can be attributed to Bimaldi;
– reasonable costs incurred to prevent or mitigate damage, to the extent the buyer proves that these costs have led to the limitation of the direct damage in the sense of these general conditions.
3. If Bimaldi were to be liable towards the buyer for any damage, then Bimaldi has the right at all times, if possible, to restore this damage. The buyer must enable Bimaldi to do so, failing which any liability of Bimaldi in the matter lapses.
4. The liability of Bimaldi is limited to a maximum of the invoice value of the agreement, or rather of such part of the agreement as the liability of Bimaldi is in regard to.
5. The possible right of the buyer to compensation of damages only arises if the buyer has reported the damage to Bimaldi in writing as soon as is reasonably possible after its occurrence.
6. Any claim for the compensation of damage lapses after the expiry of six months after the event by which the damage was caused, unless within this term a start has judicially been made with collection. In derogation to the preceding sentence, claims and rebuttals falling to consumers which are based on facts which would justify the contention that a consumer purchase does not correspond with the agreement, lapse through the expiry of two years.
7. The buyer safeguards Bimaldi against any possible claims by third parties which incur damage in connection with the implementation of the agreement and the cause of which is attributable to (an)other(s) than to Bimaldi.
8. In case of a consumer purchase, the limitations of this article do not reach beyond what is permitted pursuant to article 7:24 section 2 BW.
9. The liability limitations from these general conditions do not apply if the damage is the result of wilful intent or the deliberate negligence of Bimaldi.
ARTICLE 14. | RETENTION OF PROPERTY
1. All products delivered to the buyer remain the property of Bimaldi until the buyer has fulfilled all his payment obligations from the agreement.
2. Barring the extent to which it must be considered tolerable in the context of his regular business operations, it is prohibited to the buyer to sell, pawn, or encumber in any other manner the products which are subject to the retention of property.
3. The buyer is bound to keep the products delivered under the retention of property with due diligence and as the recognizable property of Bimaldi.
4. Upon sale and/or delivery by the buyer to third parties in the context of his regular operations, as well as upon violation of what is otherwise stipulated in this article, the purchase price becomes immediately and fully exigible.
5. If third parties seize the products which are subject to the retention of property of Bimaldi or if they wish to establish or exercise rights on them, then the buyer is obligated to inform Bimaldi accordingly as soon as possible.
6. The buyer grants unconditional permission to Bimaldi or to third parties indicated by Bimaldi to enter all those areas where the products which are subject to the retention of property are located. The buyer must provide Bimaldi upon first request with all information for the purpose of the exercise of their property rights, such on pain of an immediately payable fine of € 500 per day that the buyer fails to do so, without Bimaldi needing to formally declare the default of the buyer to that effect. All reasonable costs connected with the exercise of the property rights of Bimaldi are borne by the buyer.
7. If the buyer, after the products have been delivered to him by Bimaldi, has fulfilled his obligations, the retention of property regarding these products revives if the buyer does not comply with his obligations from an agreement concluded later on.
ARTICLE 15. | INTELLECTUAL PROPERTY
Bimaldi reserves itself all rights of intellectual property regarding the products and their designs, as well as to the brand names, brand markings, logos associated with the products, and to the visual material and other content displayed on the website. It is prohibited to the buyer to (let) multiply these goods, (let) reproduce them, or (let) disclose them in another manner than as flows from the nature or tenor of the agreement and/or the normal use of the website.
ARTICLE 16. | GENERAL COMPLAINTS POLICY
1. Complaints regarding the implementation of the agreement must be submitted, without prejudice to what is stipulated in article 7 and 8, within a reasonable term following the arising of the grounds for the complaint, completely and clearly described, in writing to Bimaldi.
2. Complaints submitted to Bimaldi are answered within a term of fourteen days after their receipt. If a complaint requires a longer processing time, within the fourteen-day term an answer is given with a confirmation of receipt and an indication of when the buyer can expect a more elaborate answer.
3. If the complaint, in the context of a distance agreement as intended in article 18.1, cannot be resolves through mutual consultation, the consumer can submit the dispute to the disputes commission through the ODR-platform (europa.eu/consumers/odr/).
ARTICLE 17. | FINAL PROVISIONS GENERAL PART
1. Bimaldi is always authorised to apply changes to these general conditions. Bimaldi will timely forward the modified general conditions to the buyer. If no time is communicated for entry into effect, the modifications become effective as soon as the changes have been announced to the buyer. Modifications to these general conditions, however, never regard agreements already concluded previously.
2. To each agreement and all legal relationships flowing therefrom, Netherlands legislation is exclusively applicable.
3. Parties will no sooner appeal to the court of law, than after they have exerted themselves optimally to resolve the dispute through mutual agreement.
4. To the extent the law does not deviate therefrom under the circumstances of the case in a mandatory manner, exclusively the competent court within the district of the place of establishment of Bimaldi is designated to hear any such legal disputes.
II. Special provisions for distance agreements
The provisions of this second chapter, without prejudice to what is stipulated in the general part of these general conditions (article 1 through 17), are specifically and exclusively applicable to so-called “distance agreements”. In case of a possible conflict between the provisions of the general part of these general conditions and the provisions of this second chapter, the provisions of this second chapter will prevail.
ARTICLE 18. | DEFINITIONS
In this second chapter, the following terms are used in the meaning as below.
1. Distance Agreement: the agreement as intended in article 1.4 which is concluded between Bimaldi and a consumer in the context of an organized system for sale at a distance without the simultaneous personal presence of Bimaldi and the consumer and whereby exclusive use is made of one or more means for communication at a distance, such as in the event of a consumer purchase concluded by way of the web shop. An agreement, therefore, is not a distance agreement if thereby an organized system for sale is not used by Bimaldi, for example in the event the consumer searches the contact details of Bimaldi on the internet or in a phone book and places an order telephonically.
2. Right of rescission: the legal option offered to the consumer to completely or partially rescind the distance agreement until fourteen days after receipt of the products.
ARTICLE 19. | RIGHT OF RESCISSION
1. Without prejudice to what is stipulated in the remainder of this article, and especially the following section, the consumer can completely or partially rescind the distance agreement until 14 days after receipt of the products without stating reasons.
2. The consumer does not have the right of rescission in case of:
a) The delivery of products which are not suitable to be shipped back for reasons of hygiene and the sealing of which has been broken;
b) The delivery of products manufactured according to the specifications of the consumer which were not pre-fabricated and which are manufactured on the basis of an individual choice or decision of the consumer, or which are clearly intended for a specific person;
c) A consumer purchase with regard to which the right of rescission is excluded otherwise than pursuant to Department 6.5.2B of the Netherlands Civil Code (BW).
3. The consumer can rescind the distance agreement by submitting a request to that effect by e-mail or by making use of the model form for revocation as proposed by Bimaldi, to Bimaldi. As soon as possible after Bimaldi has been informed of the intention of the consumer to rescind the distance agreement and if the conditions of this article have been complied with, Bimaldi will confirm the rescission of the distance agreement by e-mail.
4. During the term as intended in section 1, the consumer must handle diligently the products which are to be returned, as well as their packaging. The consumer may only handle and inspect the products to be returned only to such degree as is necessary to assess the nature and characteristics of the products. The principle hereby is that the consumer may only handle and inspect the products as he would be allowed to do in a physical store.
5. If the consumer exercises the right of rescission, he will return the products undamaged, with all the supplied accessories and in their original condition and packaging to Bimaldi.
6. The consumer is liable for the depreciation of value of the products which is the result of a manner of handling the products which goes beyond what is permitted pursuant to section 4. Bimaldi has the right to charge this depreciation of value to the consumer, whether or not by setting it off against such payments as may have been received from the consumer already.
7. Delivering back the products must take place within fourteen days after the consumer has rescinded the distance agreement in conformity with what is stipulated in section 3.
8. If the consumer makes use of the right of rescission, the costs of returning the products are borne by Bimaldi, provided that the consumer takes care of the least expensive method of return.
9. Bimaldi will repay such payments as may have been received already from the consumer regarding the part of the order which is returned, minus the possible depreciation of value, as soon as possible, though in any case no later than within fourteen days after rescission of the distance agreement, to the consumer, on condition the products have been received back by Bimaldi, or it has been demonstrated by the consumer that the products have effectively been sent back. If the right of rescission is only applied with regard to a part of the order, then the possible delivery costs which were paid by the consumer at the first instance, are not eligible for refund. Furthermore, Bimaldi is not obligated to repay the additional costs if the consumer has expressly selected another manner than the standard, least costly, delivery type proposed by Bimaldi.