General terms and conditions Vini D'Amici B.V.
Located on the Valkenburgerweg 167 in Heerlen, the Netherlands
Registered with the Chamber of Commerce under number 83969462
Phone number: 06-11064000
ARTICLE 1. DEFINITIONS
In these general terms and conditions, the following terms are written with a capital letter and are used in the following sense, unless explicitly indicated otherwise:
- Consumer: the Purchaser who, at the conclusion of a Contract with Vini d'Amici BV, is not acting in the exercise of a profession or business.
- Buyer: the natural or legal person who purchases Products from Vini d'Amici BV and is the other party to the Contract with Vini d'Amici BV in the sense of article 6:231 sub c of the Dutch Civil Code.
- Vini d'Amici BV: other party to the Agreement with the Purchaser and user of these General Terms and Conditions in the sense of article 6:231 sub b of the Dutch Civil Code. Vini d'Amici BV is expressly understood to include Prioratwines.nl, which are trade names belonging to Vini d'Amici BV.
- Order: the placing of an order for the delivery of Products by the Purchaser with Vini d'Amici BV.
- Agreement: the agreement between Vini d'Amici BV and the Purchaser on the basis of which Vini d'Amici BV delivers Products to the Purchaser against payment.
- Parties: Vini d'Amici BV and Purchaser jointly.
- Products: all goods, including wines, whisky, rum and other alcoholic beverages, which are the subject of the Agreement.
- Written: in these General Terms and Conditions, "written" also includes communication by e-mail, fax or digitally (e.g. via an online interface) provided that the identity of the sender and integrity of the content is sufficiently established.
Website: the relevant website of Vini d'Amici BV on which the purchase or agreements are made. These may be:
ARTICLE 2. APPLICABILITY
- These General Terms and Conditions are applicable to all offers, Agreements and deliveries of Vini d'Amici BV, of whatever nature, unless this applicability is fully or partly expressly excluded in writing or it has been expressly agreed otherwise.
- Any general conditions of the Buyer, however named, are explicitly rejected. Deviations from and additions to these Terms and Conditions are only applicable if and insofar as they have been expressly accepted in writing by Vini d'Amici BV.
- When Vini d'Amici BV allows deviations from these general conditions for a short or longer period, tacitly or not, this does not affect its right to demand direct and strict compliance with these conditions. The Buyer cannot derive any rights from the manner in which Vini d'Amici BV applies these conditions.
- These conditions are also applicable to all agreements with Vini d'Amici BV, for the execution of which third parties are involved. These third parties can directly appeal to the Buyer on the present conditions, including any limitations of liability.
- If one or more of the provisions of these general terms and conditions or any other agreement with Vini d'Amici BV should be in conflict with a mandatory provision of the law or any applicable legal regulation, the provision in question will lapse and will be replaced by a new, legally permissible and comparable provision to be determined by Vini d'Amici BV.
ARTICLE 3. OFFERS
- All offers of Vini d'Amici BV are revocable and made without obligation, unless otherwise indicated in writing.
- The content of the delivery is exclusively determined by the description of the delivery given in the offer. If the acceptance (on subordinate points) deviates from that stated in the offer, Vini d'Amici BV is not bound to it. The Agreement will not be established in accordance with this deviating acceptance, unless Vini d'Amici BV indicates otherwise.
- Obvious errors or typographical errors in the offer of Vini d'Amici BV, for example on its Website(s) or in price lists, are not binding to Vini d'Amici BV.
ARTICLE 4. PRICES
- For Orders within the Netherlands, the prices quoted include VAT and other government levies. The shipping costs are at the expense of the Buyer, unless the Buyer indicates that it wishes to collect the Products from the company.
- For Orders destined for other countries, the prices quoted by Vini d'Amici BV are freight paid to the agreed final destination "CPT - Carriage Paid To" (in accordance with the provisions of the latest version of the Incoterms as drawn up by the International Chamber of Commerce). The prices are therefore exclusive of, inter alia, VAT, insurance, import duties, excise duties payable in the country of importation and other taxes or charges imposed or levied in respect of the goods, but including transport and packaging costs, unless otherwise indicated.
- Vini d'Amici BV is free to change its prices at any time. Offers therefore do not automatically apply to future Orders.
ARTICLE 5. CONCLUSION OF THE CONTRACT
- Subject to the provisions below, an Agreement with Vini d'Amici BV is only realised after Vini d'Amici BV has accepted or confirmed an Order in writing. The order confirmation is deemed to reflect the Contract accurately and completely, unless the Purchaser protests against it immediately and in writing.
- For Orders placed via the websites of Vini d'Amici BV, in deviation from the provisions of paragraph 1 of this article, the Contract shall be established at the moment that the Buyer has successfully completed all steps of the online ordering process. Vini d'Amici BV will subsequently confirm the Order to the Buyer in writing.
- Any supplementary agreements or modifications made at a later date shall bind Vini d'Amici BV only if confirmed in writing by Vini d'Amici BV within 5 days.
ARTICLE 6. DELIVERY AND TRANSFER OF RISK
- Delivery shall at all times be made only to persons of legal age. Vini d'Amici BV asks its transport partners to check the age at delivery. If the package cannot be delivered to an adult person, the package will be taken back. The transport costs will in that case be at the expense of the Buyer.
- Unless otherwise agreed, delivery to a foreign country shall be carriage and insurance paid to the agreed destination "CPT - Carriage Paid To" (in accordance with the provisions in the latest version of the Incoterms as drawn up by the International Chamber of Commerce). Vini d'Amici BV bears the costs for the transport, but the risk connected with the transport of the goods is transferred to the Buyer at the moment that Vini d'Amici BV has handed over the goods to the first carrier.
- For shipments within the Netherlands, the goods are transported at the risk of Vini d'Amici BV, unless expressly agreed otherwise. The costs for transport will be shown at checkout. The risk in respect of the Products passes to the Purchaser at the moment that they are presented for receipt at the delivery address.
- The choice of means of transport is up to Vini d'Amici BV, even in the case of non-franked shipments, where no instructions for shipment have been given by the Purchaser. Obstructions or temporary impediments in the transport with the chosen means of transport, do not oblige to the use of another means of transport.
- If, in deviation from paragraphs 2 and 3, the Buyer requires a particular mode of dispatch or transport from Vini d'Amici BV that is not offered by Vini d'Amici BV as standard, the risk of dispatch lies with the Buyer. In such case, the risk in respect of the Products shall pass to the Purchaser at the moment that Vini d'Amici BV has delivered the Products to the first carrier.
- If the Purchaser has specific requirements with regard to packaging to be used by Vini d'Amici BV, all costs for the use of such packaging shall be borne by the Purchaser. Packaging materials will not be taken back by Vini d'Amici BV.
- If it has been agreed that the Purchaser will collect the Products (or have them collected) or will arrange for their transport, the Products that are ready for collection or dispatch must be collected or received immediately at the place of delivery. In this case, the risk relating to the Products shall pass to the Purchaser at the moment when the Purchaser or a third party engaged by the Purchaser takes delivery of the Products.
- If it appears to be impossible to deliver the Products to the Purchaser due to a cause attributable to the Purchaser, Vini d'Amici BV reserves the right to store these Products (or have them stored) at the expense and risk of the Purchaser, possibly in the open air, all without any liability on the part of Vini d'Amici BV for damage, decrease in value, loss or otherwise. During storage a period of 30 days applies in which Vini d'Amici BV will give the Buyer the opportunity to take receipt or possession of the Products. All this, unless Vini d'Amici BV has explicitly set a different term in writing.
- If the Buyer remains in default of compliance with his obligations after the expiry of the term referred to in the previous paragraph of this article, the Buyer is legally in default and Vini d'Amici BV has the right to dissolve the Agreement in writing in whole or in part with immediate effect, without prior or further notice of default, without judicial intervention and without being obliged to compensation of damage, costs or interest. Vini d'Amici BV is in that case entitled to sell the Products to third parties or to use them for the execution of other agreements. The foregoing is without prejudice to the Buyer's obligation to pay the agreed purchase price as well as any storage and/or other costs.
ARTICLE 7. DELIVERY TIMES
- If Vini d'Amici BV has given a term for delivery or execution of the Agreement, this is only indicative. A stated delivery period should therefore never be considered as a strict deadline. If a term is exceeded the Purchaser must therefore give Vini d'Amici BV written notice of default. Vini d'Amici BV must be offered a reasonable period in which to fulfil the Agreement as yet.
- If and in so far as required for proper execution of the Agreement in the opinion of Vini d'Amici BV, Vini d'Amici BV has the right to have certain activities performed by third parties.
- The Purchaser shall ensure that all data indicated by Vini d'Amici BV as being necessary or which the Purchaser should reasonably understand to be necessary for execution of the Agreement, shall be supplied in time to Vini d'Amici BV. If Vini d'Amici BV has not been provided in time with the data necessary for the execution of the Agreement, Vini d'Amici BV has the right to suspend execution of the Agreement and/or to charge the Buyer for the extra costs resulting from the delay according to the usual rates.
- If the Buyer wishes delayed delivery of the purchased Products, Vini d'Amici BV will store the Products. For the first 120 days, Vini d'Amici BV will not charge the Purchaser for this storage. After 120 days, Vini d'Amici BV will charge the Purchaser an amount of € 2 (excl. VAT) per bottle per month. Vini d'Amici BV has the right to refuse delivery of these Products until the Buyer has paid the amount due in respect of the storage of the Products. The risk regarding the purchased and stored Products is transferred to the Purchaser at the moment of payment by the Purchaser to Vini d'Amici BV of the purchase price (delivery constituto possessorio).
ARTICLE 8. TRIAL PERIOD AND RIGHT OF WITHDRAWAL
- In the event of distance selling, the offer shall also include a trial period of 14 days, commencing the day after receipt by or on behalf of the Consumer, unless otherwise agreed. The purchase shall in that case only be final after 14 days have passed since receipt of the Product.
- During the trial period, the Consumer has a right of withdrawal, whereby the Consumer has the option of returning the Products received without any obligation on his part, other than compensation for the direct costs of returning them.
- The Consumer may invoke the right of withdrawal by informing Vini d'Amici BV of its intention in writing or by e-mail within a period of 14 days from receipt by or on behalf of the Consumer. The written statement shall be sent by e-mail to email@example.com. To this end, the Consumer may use the contact form made available by Vini d'Amici BV on its website, but the Consumer is not obliged to do so.
- If the right of withdrawal is invoked by the Consumer, Vini d'Amici BV shall reimburse any amount already paid by the Consumer at the latest within 14 days after receipt of the returned Products.
- The Consumer can only effectively exercise its right of withdrawal if the Products in question are returned complete, undamaged, unused and in the original packaging. If the packaging is not sealed, the Consumer may take the Product out of the packaging insofar as this is necessary to assess whether the Product meets the Consumer's expectations, as long as the original packaging is preserved and the Product can be returned in an undamaged and unopened condition. After the Consumer has opened the Product for consumption, the Consumer can no longer invoke revocation.
- After invoking the right of withdrawal, the Consumer must return the delivered product within 14 days to Vini d'Amici BV. The costs of return shipment shall be borne by the Consumer. Products can also be returned at the warehouse of Vini d'Amici BV. Vini d'Amici BV does not use its own transport for the return of Products.
- Alcoholic beverages whose price has been agreed upon at the conclusion of the contract, but whose delivery can only take place after 30 days, and whose actual value depends on fluctuations of the market on which Vini d'Amici BV has no influence, are excluded from the right of withdrawal. Products personalized specifically for the Consumer are also excluded from the right of withdrawal.
ARTICLE 9. INSPECTION, COMPLAINTS AND QUALITY GUARANTEE
- The Buyer must inspect the Products delivered immediately after delivery for any discrepancies with what was agreed. Any complaints regarding the Products delivered must be submitted to Vini d'Amici BV by e-mail or telephone within 48 hours of delivery. After expiry of the aforementioned term, the Products delivered shall be deemed to have been irrevocably and unconditionally accepted by the Purchaser. The Buyer must keep the defective Products at Vini d'Amici BV's disposal for the assessment of the complaint. The submission of a complaint does not suspend the Buyer's payment obligation with respect to the Products concerned.
- Should the Products be externally damaged on arrival, the Purchaser should make a written reservation to this effect to the carrier by means of a note on the delivery receipt.
- If a Product contains a defect, such as "cork", the Purchaser must keep the bottle(s) concerned refrigerated and sealed as soon as possible after its discovery. The Buyer must then return the bottle(s) to Vini d'Amici BV within 3 days for evaluation. The costs of return shipment are at the expense of the Purchaser. If the defect is confirmed by Vini d'Amici BV, Vini d'Amici BV will replace the Product, i.e. the relevant bottle(s) in which "cork" has been detected, free of charge. If replacement is not possible, e.g. because the Product concerned is no longer available or its value has increased in the meantime to such an extent that Vini d'Amici BV cannot reasonably be required to replace the bottle, Vini d'Amici BV will refund the purchase price to the Purchaser. Vini d'Amici BV does not grant quality guarantees on red wines older than 8 years and white wines older than 2 years.
- Products that are transported or sent to Vini d'Amici BV for replacement or for assessment under quality guarantee, remain at all times at the risk of the Buyer, regardless of who determined the method of transport or shipment and regardless of who bears the costs thereof.
- By fulfilling one of the above-mentioned performances, Vini d'Amici BV will be fully discharged with regard to its warranty obligations and Vini d'Amici BV will not be obliged to any further (damage) compensation.
- Defective Products can only be returned after prior consultation with one of the sales employees of Vini d'Amici BV.
ARTICLE 10. INVOICING AND PAYMENT
- Vini d'Amici BV is entitled, at the start of the Contract, to demand that shipment takes place after full or partial prepayment by the Buyer. Unless expressly agreed otherwise, payment shall be made by means of advance transfer to a payment method offered via the Vini d'Amici BV website, such as iDeal or credit card.
- If it has been agreed that payment shall be made by invoice, payment of the invoice shall be made within 30 days after the invoice date, without any set-off or discount, in a manner to be indicated by Vini d'Amici BV in the currency in which the invoice was made. Vini d'Amici BV is entitled to send invoices digitally.
- After expiry of the agreed term of payment, the Purchaser is legally in default without any further notice of default being required.
- From the moment of default, the Buyer shall owe interest of 1% per month on the amount due and payable, unless the statutory commercial interest rate is higher, in which case the statutory commercial interest rate shall apply. All (extra) judicial costs which Vini d'Amici BV incurs for the purpose of obtaining payment - both judicial and extrajudicial - are from that moment on at the expense of the Buyer. In that case the Purchaser shall owe a compensation of at least 15% of the outstanding amount, with a minimum of € 150.00. For Consumers this amounts to a percentage of at least 5% with a minimum of € 40.00. If the actual costs incurred and to be incurred by Vini d'Amici BV exceed this amount, they are also eligible for compensation.
- If the Purchaser has not timely fulfilled his payment obligations, Vini d'Amici BV is authorized to suspend the fulfilment of the obligations to deliver or execute activities entered into with the Purchaser until payment has been made or proper security has been provided for this. The same applies even before the moment of default if Vini d'Amici BV has a reasonable suspicion that there are reasons to doubt the creditworthiness of the Buyer.
- In case of liquidation, bankruptcy, debt rescheduling or suspension of payment of the Buyer or a request thereto, the claims of Vini d'Amici BV and the obligations of the Buyer towards Vini d'Amici BV shall be immediately due and payable.
- If the Purchaser, for whatever reason, has one or more counterclaims against Vini d'Amici BV, the Purchaser waives the right of setoff. The aforementioned waiver of the right to settlement also applies if the Buyer requests (temporary) suspension of payment or is declared bankrupt.
ARTICLE 11. RETENTION OF TITLE
- All Products delivered by Vini d'Amici BV remain the property of Vini d'Amici BV until such time as the Buyer has fully complied with all its payment obligations to Vini d'Amici BV pursuant to any Contract concluded with Vini d'Amici BV for the delivery of Products and/or the performance of work, including claims for failure to comply with such Contract.
- A Buyer who acts as reseller is not entitled to sell or resell the Products which are subject to the retention of title of Vini d'Amici BV, not even if this is customary in the context of the normal operation of its business.
- The Purchaser is not permitted to establish limited rights on Products which are subject to the reservation of title of Vini d'Amici BV. If third parties (wish to) establish (limited) rights on Products subject to the reservation of title, the Purchaser shall immediately inform Vini d'Amici BV.
- Vini d'Amici BV hereby reserves as of now a non-possessory pledge on the delivered Products, the ownership of which has been transferred to the Buyer by payment and which are still in the possession of Vini d'Amici BV, as additional security for claims, other than those mentioned in article 3:92 paragraph 2 of the Dutch Civil Code, which Vini d'Amici BV may have against the Buyer for whatever reason.
- The Purchaser is obliged to keep the Products delivered under reservation of title separated from other Products, with the necessary care and as recognizable property of Vini d'Amici BV.
- The Purchaser is obliged to insure the Products against fire, explosion and water damage as well as against theft for the duration of the reservation of ownership and to submit the policies of these insurances to Vini d'Amici BV for inspection at the first request. All claims of the Purchaser on the insurers of the Products under the aforementioned insurances shall, as soon as Vini d'Amici BV so desires, be pledged by the Purchaser to Vini d'Amici BV as additional security for the claims of Vini d'Amici BV against the Purchaser.
ARTICLE 12. LIABILITY
- If Vini d'Amici BV is liable for damage, such liability is limited to compensation of direct damage and to a maximum of twice the invoice value of the contract (excluding VAT) to which the liability relates. Direct damage is exclusively understood as follows
1) the reasonable costs incurred to establish the cause and extent of the damage, insofar as the establishment relates to damage within the meaning of these general terms and conditions
2) the possible reasonable costs incurred to have the defective performance of Vini d'Amici BV correspond to the contract, unless these costs cannot be attributed to Vini d'Amici BV.
- Vini d'Amici BV shall never be liable for indirect damage, including but not limited to damage to persons, consequential damage, loss of profit, missed savings, damage because of business stagnation, environmental damage and damage as a result of imposed fines because of failure to comply with the delivery periods.
- Vini d'Amici BV is not liable for damage, of whatever nature or in whatever form, because it has relied on incorrect and/or incomplete data provided by the Purchaser.
- The limitations of liability for direct damage included in these general terms and conditions are not applicable if the damage is due to intent or gross negligence on the part of Vini d'Amici BV.
ARTICLE 13. PERIOD OF LIMITATION
In all cases, the period within which Vini d'Amici BV can be sued for damages is limited to a maximum of 1 year after delivery of the Products concerned to which the damage relates.
ARTICLE 14. FORCE MAJEURE
- The parties are not obliged to comply with any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault, and for which they cannot be held accountable by virtue of the law, a juristic act or generally accepted practice.
- In these general terms and conditions, force majeure is understood, in addition to that which is included in the law and jurisprudence, as all external causes, foreseen or unforeseen, on which Vini d'Amici BV cannot exert any influence, but due to which Vini d'Amici BV is not able to fulfill its obligations. Strikes in the company of Vini d'Amici BV or the manufacturer or supplier concerned are also included.
- Vini d'Amici BV has also the right to appeal to force majeure if the circumstance preventing (further) fulfillment arises after Vini d'Amici BV should have fulfilled its obligation.
- The parties can suspend the obligations from the Agreement during the period that the force majeure continues. If this period lasts longer than 30 days, each of the Parties is entitled to dissolve the Agreement without any obligation to compensate the other Party for damages.
- Insofar as Vini d'Amici BV has already partially fulfilled its obligations from the Agreement at the time when force majeure occurred or will be able to fulfil them and independent value can be attributed to the fulfilled or still to be fulfilled part, Vini d'Amici BV is entitled to invoice the part already fulfilled or still to be fulfilled respectively. The Buyer is obliged to pay this invoice as if it were a separate Agreement.
ARTICLE 15. APPLICABLE LAW AND CHOICE OF FORUM
- Dutch law is applicable to all agreements concluded and to be concluded by Vini d'Amici BV.
- All disputes that may arise between Vini d'Amici BV and the Customer as a result of the present Agreement or further agreements resulting from it will be settled by the competent judge in the district where Vini d'Amici BV has its registered office, unless a mandatory provision of the law opposes this.
ARTICLE 16. AMENDMENT AND EXPLANATION OF THE TERMS AND CONDITIONS
- In the event of a conflict between the content and purpose of these general terms and conditions and the Dutch version, the Dutch text will always prevail.
- The most recently filed or published version or the version in force at the time the Agreement was concluded shall always apply.