BY COCOON LTD Terms and Conditions
These are the General Terms and Conditions for sale and delivery (“Terms and Conditions”) of BY COCOON LTD (“COCOON”, “we” and “us”). You should read these Terms and Conditions carefully since they apply whenever you contract with us or otherwise purchase products from us.
Last amended: March 10, 2020
Section 1. DEFINITIONS
- Terms and Conditions: these General Terms and Conditions for sale and delivery of BY COCOON LTD.
- COCOON, us and/or we: BY COCOON LTD, with registered office at 60/2 Melita Street, 1122 VLT Valetta, Malta, a company registered in Malta with registered company number C90001 and VAT registration number MT25967007.
- Website: the website https://bycocoon.com, that is owned and operated by COCOON.
- Products: all Products specified in the Agreement.
- IP-rights: any and all rights (of intellectual property) including but not limited to copyrights, (amongst which copyrights on software), database rights, domain names, trade names, trademarks, design rights, patent rights, related rights, as well as all rights to knowhow.
- Offer: any offer of us in writing or placed on the Website.
- Client and/or you: the natural person whether or not acting in the course of its business or the legal entity, that has entered in an agreement with us.
- Agreement: the Agreement between you and us based on which we sell and deliver the Products to you, meaning either an agreement for periodical deliveries such as a sales agreement or a distribution agreement (also “Periodical Delivery Agreement”) or a single order such as a specific order deriving from a Periodical Delivery Agreement or an order that was placed via the Website (also “Single Order”), either in writing or oral, of which Agreement these Terms and Conditions form an integral part.
- Party(s): COCOON and the Client, either jointly or individually.
- Confidential Information: information we provide to you that is not public that we either indicate to you to be confidential or that you know or reasonably should assume to be confidential (for example by virtue of the information concerned or based on the circumstances under which the information is disclosed) and that is to be kept and treated in strictest confidence.
- Employee: a person who performs work for one of the Parties, either based on an employment
agreement or a contract for the performance of services.
Section 2. SCOPE
- Applicability. The Terms and Conditions apply to and form an integral part of every (legal) act relating to the preparation, conclusion and performance of the Agreement or that otherwise relates to the Agreement. The Terms and Conditions also apply to every agreements resulting thereof and every following Agreements between the Parties, without us having to declare the Terms and Conditions applicable again.
- Your terms do not apply. The applicability of any purchase- or other (general) terms and conditions of the Client is expressly excluded.
- Ranking of documents. In case of any inconsistencies or conflicts between the Agreement and these Terms and Conditions, the provisions of the Agreement will prevail.
Section 3. OFFERS
- Free Offers. All our Offers are without obligation. An obligation for us to deliver the Product arises only upon the dispatch the Products. We may decline to supply the Products without giving any reason and without any obligation to pay for any damages or losses.
- Reimbursement of payment. In the unlikely event we decline to supply a Product that you have already paid for, we shall reimburse you the price you have paid within 30 days after declining your order.
- Information in Offers. All models, pictures, drawings and measurements shown, provided or communicated, give a general representation of the Products only. Changes in the construction as a consequence of which the actual design somewhat deviates from the intended models, pictures, drawings or measurements, but do not cause an essential alteration of the Product, shall not oblige you to any compensation and shall not give you the right to refuse the Product.
Section 4. PERFORMANCE
- Information we need from you. You are required to provide us in time with any and all necessary (technical) information, decisions, requirements and/or other particulars that you deem necessary for the performance of the Agreement and the delivery of the Products. This includes, but is not limited to, any foreign law based requirements and particulars regarding the Products, such as the quality, installation and/or certification requirements. You guarantee us that any and all provided information is correct, complete and consistent.
- Installation excluded. Under the Agreement, we are only required to provide you with our Products. Installation of the Product is not part of the Agreement.
- Out of Product. If for any reason we are unable to supply a particular Product at all or during a specific period of time, we will inform you as soon as possible.
- Third parties engagement by us. We are entitled to engage third parties in the performance of the Agreement if we deem it necessary and to pass on any related costs to you. Third parties engaged by us may want to limit their liability. Pursuant to the Agreement, we are entitled to accept on your behalf any limitations of liability stipulated by these third parties and to enforce those also against you.
- Third parties designated by you. We are not obliged to have work performed by third parties designated by you. Should we agree to do so – and for example use a carrier designated by you – you are fully liable and you indemnify us from any claims from such a third party and/or from any claims from other parties related to the work performed by that third party.
Section 5. DURATION AND TERMINATION
- Duration of periodical Delivery Agreements. The duration of the Agreement is laid down in the Agreement. If no duration is agreed upon, the Agreement is considered to be an open-ended Agreement until further notice.
- Duration of Single Orders. The duration of Single Orders is restricted to the period of the delivery of the Products of that specific order only.
- Cancellation of Single Orders. If you are a consumer, you have the right to cancel your order up to fourteen (14) days after the day following the delivery by contact us using our Customer Support (Section 18.). We kindly refer you for further information about this topic on our website (“Right of Withdrawal for Consumers”). If the Products have already been dispatched at the date of receipt of your cancellation of the order, you must return the Products to us in accordance within Section 13. and we will credit your credit or debit card with the price of the Products within 30 days beginning with the day on which notice of cancellation was given. If you do not return the Products within 21 days of your cancellation, you will be deemed to have accepted the Products and your cancellation is considered to be void.
- Termination. You may not terminated a fixed-term Agreement before the end of the term, without our previous approval, to which approval we may set terms and conditions. Open-ended Agreements may be terminated by each Party in whole or in part on a three-month’s written notice, without any liability towards the other Party due to early termination, unless otherwise agreed upon in the Agreement.
- Specific grounds for suspension or termination. We are entitled, at our sole discretion, to either suspend or terminate (without any liability for early termination) the Agreement, regarding either periodical deliveries or single orders, if you are insolvent, or institutes (or there is instituted against it) proceedings against you in bankruptcy, insolvency, reorganization or dissolution, you make an assignment for the benefit of creditors, you become nationalized or any of your material assets are confiscated or expropriate.
- Post-contractual obligations. Obligations that by their nature are intended to survive termination of the Agreement, remain in full force also after termination and apply to you as well as any of your legal successors.
Section 6. PRICE
- The price you pay. You pay COCOON the price that is specified in the Agreement and/or any attachments thereto. All prices are in euro’s only.
- Included and excluded. Our prices are exclusive of value added tax, sales tax or other equivalent taxes. Furthermore, our prices are calculated based on delivery terms that include all transport costs and DDP (Delivered Duty Paid) (frontdoor delivery). This means that we are responsible for arranging transport and covering all costs of transport, shipping and duties as well as the costs of carrying out custom formalities payable upon export. When final delivery is delayed by consignee and cannot be executed from the distribution warehouse within 48 hours, we cannot be held responsible for any storage costs. You will receive the goods cleared for import and ready for unloading at the named destination.
- Price adjustment due to wrong information. A price that is fully or partially based on information that you have provided us and that information is fully or partially incorrect or inaccurate, we have the right to adjust the price, even after the Agreement has already been concluded or the Products have already been delivered.
- Price adjustment due to mistake. If by mistake, we have under-priced a Product, we will not be liable to supply that Product to you for the stated price, provided that we notify you before we dispatch the Product concerned.
- Price adjustment due to increase in cost. We may pass on to you an increase in cost-determining factors that occurs after entering into the Agreement. You are obliged to pay the price increase immediately upon our first request. We shall notify you of any such increase.
Section 7. PAYMENT
- Payment in advance. All payments must be made in advance, unless explicitly agreed upon otherwise in writing between the Parties. As long as we have not received the full payment agreed upon or – if agreed upon otherwise – the agreed upon down payment, we are entitled to suspend our obligations under the Agreement temporarily.
- How to pay. Payments can be made by any American Express, MasterCard, Visa credit card and Maestro debit cards as well as Paypal and bank transfer. Your credit-debit card details will be encrypted to minimize the possibility of unauthorized access.
- Payment term. Without prejudice to Section 7.1. the payment terms of our invoices is 14 days, without deduction or appeal to compensation. This means that you are not entitled to settle payment of the invoice with a (counter)claim against us, nor are you entitled to suspend payment of the invoice with reference to a (counter)claim against us, neither do any other objections of any other nature against the invoice suspend payment of that invoice.
- Due without notice. Everything you owe us under the Agreement and all invoices becomes immediately due and payable, without notice necessary, if a payment term has been exceeded or if we cannot deliver a Product due to a reason that is for your risk and account under either the Agreement, the Terms and Conditions or applicable Dutch law.
- Late payment. In the event of late payment, you owe us, in addition to the amount due:
a) An interest of 2% of per month, or equal to the statutory interest if that is higher, on the amount due as of the due dat up to and including the day on which you settle the entire amount due.
For interest calculations a part of the month is considered to be a full month.
b) A full reimbursement of both extrajudicial and judicial costs, including, but not limited to, attorney and/or lawyer fees and bailiff’ costs, with a minimum of € 250,–. The extrajudicial costs are calculated as 15% of the amount due plus interest in accordance with this Section
7.5.a), but we may also claim the actual costs incurred if they are higher than 15%.
c) If a judgement is rendered in a legal proceeding that is either fully or in most part in our favour, you will bear all costs incurred in connection with such proceedings.
Section 8. DELIVERY
- Delivery time. Unless otherwise agreed upon in writing, all delivery times specified in the Agreement or otherwise communicated between you and us serve solely as an indication and not as a fatal term. You are not entitled to any penalties, damages or other (financial) compensation due to failure to meet the delivery time.
- Delivery specifics. Delivery of the Products is provided under Delivered Duty Paid (DDP, INCOTERMS 2020) (frontdoor delivery) to the location stated on the invoice. The initial point of dispatch will be our warehouse in The Netherlands, currently Spectrumlaan 31, 2665 NM in Bleiswijk, The Netherlands. Upon our notification that the Products are available and have been dispatched, we bear the risk and responsibility for the Products, including storage, loading, transport, and unloading, until they are delivered to you. This includes arranging and paying for transport, which covers all shipping costs and duties under DDP terms (frontdoor delivery). The Products remain at our risk and expense until they have been delivered to you and are ready for unloading at the named destination.
- Transport. As per the agreed DDP terms (frontdoor delivery), we are responsible for all transport arrangements and costs, ensuring that the Products are delivered to you, including all shipping costs and duties. This means that we will manage and pay for the transportation, and the Products will be at our risk until they have been delivered to your specified location. Despite our responsibility for transport, the Products remain your property upon notification of dispatch as referred to in Section 8.2. We are committed to ensuring the safe and secure delivery of the Products, but it’s important to note that our liability for any loss, damage, or destruction of the Products will be as per the agreed terms under DDP, INCOTERMS 2020 (frontdoor delivery).
- Your address. Delivery of Products for which we provide transfer for you in accordance with Section 3. is made to the address specified by you, either in the Agreement, in the order form or otherwise communicated by you to us. You are responsible for providing us with the right and full address and all further information necessary for delivery. We are not liable for any omissions in the specified address due to which we are unable to deliver the Products (properly). If you are not able to take delivery of the Products, depending on the carrier used, your goods will either be stored at the depot nearest to your address until you can collect them or the carrier will attempt to redelivery the Products at your address. Where applicable we will charge you with any and all (extra) costs such as for transport and/or storage. Where under the Agreement or the Terms and Conditions the date of delivery at your address must be determined, the date on which we oﬀered you the Product(s) for the first time is leading.
Section 9. SECURITIES
- Retention of title (1.-8.). We remain the full ownership of any and all Products you have purchased and we have delivered as long as you:
a) Have not fulfilled your obligations under the Agreement and these Terms and Conditions, meaning amongst others that the price, including any other additional costs for that specific Product and delivery, have been settled in full.
b) Claims arising from non-fulfillment of any or more Agreement(s), such as damage, penalties, interests and costs have not been settled.
- Co-ownership. In addition to the retention of title referred to in Section 9.1. and with regard to these Products, we will also acquire the (co-)ownership right as security for all outstanding amounts against you, as well as towards for the Products in respect of which we lose the ownership right due to fashioning, processing, accession, specification or otherwise.
- Enforcement. As soon as you fail to fulfill one or more of your obligations towards us referred to in Section 9.1. a) and b), all amounts owed by you will become immediately due and fully payable and we will be entitled to exercise our rights arising from his retention of title, such without any notice of default or court intervention.
- Additional prohibitions. Prior to the transmission of ownership referred to, you shall not be entitled to sell, deliver or otherwise alienate the items delivered in any manner other than in accordance with the normal operations and the normal use of the Products. This entitlement shall lapse at the moment a (provisional) moratorium is granted to you or you are declared bankrupt. You may in no event have the Products coming under the retention of title serve as security for amounts owed to third parties.
- Access to Products. Prior to the transmission of ownership referred to, we shall have access to the items of which we have the ownership at any given time, wherever they are.
- Penalty. Upon violation of the stipulations of this clause, you shall owe us a penalty of 10% of the amount owed at the time of the violation, without prejudice to claim the actual amount of damages exceeding the amount of penalty.
- Subrogation. You may agree with a third party that the latter pays the purchase price for you and for that be subrogated to the amount owed to us. Upon payment by a third party who is subrogated to the amount owed to us, the retention of title as described in this clause shall not lapse. In the case of subrogation as referred to in this sub-section, we shall deliver the retained ownership of the items for which the third party has paid the purchase price to the subrogated third party. From the time of subrogation, you will hold the items for the subrogated third party. Subrogation to the amount owed by a third party as referred to in this sub-section and the transmission of the retained ownership to it does not aﬀect the fact that you may call us to account for any failure to fulfill the agreements concluded between us.
- Local law requirements for retention of title. In the event that your local laws and regulations set additional requirements necessary to create a legally binding retention of title you are obliged to inform us thereof immediately and you shall render us upon first request every assistance necessary in establishing such a legally binding retention of title. Such information is considered to be information we need from you as specified in Section 4.1.
- Other securities. Besides retention of title we may require additional (financial) securities for payment at any time and at our sole discretion. Not complying with a reasonable request for (financial) securities forms a serious and attributable breach that justifies immediate termination of the Agreement, without any notice necessary and without eﬀecting our remedies under the Agreement, these Terms and Conditions or under applicable Dutch law
Section 10. CONTRACT EXTRAS
- Contract extras. Any changes in the Agreement, either at your request or due to other circumstances that make a diﬀerent performance necessary, are considered to be contract extras if it results in a price increase. These Terms and Conditions also apply to those contract extras.
- No ground for termination and further requirements. Contract extras do not constitute a ground for cancellation or termination, including the Dutch law based termination ground called ‘ontbinding’. If the contract extras are at your request, we are entitled to refuse that request or to set further requirements.
- Delay in delivery. You accept that contract extras might result in delay of delivery. That is no diﬀerent if a specific delivery time is agreed upon. You are not entitled to any (financial) compensation or penalty.
- Payment of contract extras. We will calculate all contract extras on the basis of the price-determining factors that apply at the time the contract extras are performed. You must pay for the contract extras immediately upon our first request.
Section 11. COMPLAINTS
- Inspection. You must inspect and examine the Products within five (5) working days after delivery at the Place of Delivery, insofar as this is possible in the ordinary course of business. If we provide transport for you, inspection must take place within five (5) working days after delivery at the address specified in Section 8.4.
- Time limit for lodging a complaint. You lose the right to rely on a defect or a lack of conformity of the Products and we shall no longer be liable for a lack of conformity of defect of the Products, if you fail to notify us thereof, specifying the nature of the lack of conformity and defect in writing as thoroughly as possible and by using photo material, within another period of five (5) working days after you have, or ought to have, discovered such lack of conformity or defect after the initial inspection period according to section 11.1. The same applies if such a lack of conformity or defect shows up later and you fail to notify us after discovery within a period of five (5) working days after you have, or ought to have, discovered such lack of conformity or defect. In both cases, the Products then are considered to be approved in view of this lack of conformity and/or defect.
- Forfeiture of claims. In any event your rights resulting from a lack of conformity and/or defect of the Products shall be excluded upon the expiration of a period of twelve (12) months after delivery at the Place of Delivery or – where applicable – delivery at the address specified in Section 8.4., unless this time-limit is inconsistent with a contractual period of guarantee, such as for example the COCOON-warranty specified in Section 12.2.
- Invoice complaints. Complaints about our invoice must be submitted in writing, specified, and within the payment term of 14 days at any time, subject to forfeiture of all rights.
Section 12. WARRANTIES
- General warranty. We guarantee that our Products comply with the Agreement and the specifications in the Oﬀer, all reasonable requirements of reliability and/or usability and compliance with any Dutch law and regulations that apply at the date the Agreement for that specific Product was formed. You can rely on this general warranty if the defect is discovered and communicated to us in accordance with Sections 11.2. and 11.3. and we find the complaint well founded.
- COCOON warranty. Exceptional quality is one of the key factors contributing to the COCOON Therefore we oﬀer a longer warranty for specific (parts of) Products only for domestic use (not for commercial purposes, i.e. hotels, spas, and other related services, etc.):
a) We oﬀer a 20-year warranty on our stainless steel taps and accessories;
b) We oﬀer a 5-year warranty on basins and bathtubs against manufacturing or material defects when used in normal domestic application;
In both cases starting from the date on your invoice from COCOON and only upon presentation of an original invoice. The COCOON warranty explicitly does not include regular wear and tear and parts we oﬀer as replacement parts, such as thermostatic or mixer cartridges, flow control cartridge, ceramic disks, o-rings, flow regulators, check valves, aerators, flexible hoses, etc.
- Defects elimination time. You shall only be entitled to exercise any given warranty rights such as to avoid this Agreement, reduce the purchase price or request delivery of substitute Products because of a lack of conformity of the Products, only after you have requested us to rectify the defect within a reasonable period of time and we have failed to rectify the defect within such period or have refused to do so.
- Excluded from any warranty. Any and all guarantees or warranties are terminated and may no longer be relied on if Products are not properly installed, maintained and used in accordance with our advice, instructions, manuals and/or cleaning advices. This includes, but is not limited to, neglect or abuse of Products, intentional damage, any and all damage caused during installation, damage due to poor maintenance, damage due to pollutions, poor water quality and/or calcification, damage by the use of detergents, damage by the adjusting the Product, damage by adding and/or editing the Products with other products than Products of COCOON, damage due to removing Products from their original installed location, damage due to Products being altered by a third party, unless you are able to prove that the alteration did not cause the defect, and damage due to weather conditions (frost, moss, heat, etc.).
- Specifics of warranty with use of natural materials. (Most of) Our Products are made of natural materials that have their own characteristics, that lead to the following criteria, conditions and specifics for warranty must be taken into account:
a) due to the natural characteristic of natural materials and our finishings, color diﬀerences may occur. For example the PVD colors applied on stainless steel may vary in color between components and Products and may also change or defuse over time.
b) Natural stone and wood are natural materials that are prone to variations in color, pattern and density that actually add to the beauty and charm of the material. Natural stone and wood are natural materials that are prone to variations in color, pattern and density that actually add to the beauty and charm of the material. We invite and encourage you to view and approve the specific slabs before fabrication.
c) Our warranties do not cover color diﬀerences or any diﬀerences between samples and delivered Products. Where we give you a warranty for material defects we are not liable for the availability of the same color of those materials or for any color diﬀ If the color is no longer available and we determine that a satisfactory repair cannot be made, warranty and liability is limited to the cash value of the specific (part of the) Product, based on current square meter prices.
d) Our warranties do not cover natural characteristics part and parcel of the use of natural materials such as color variation, water lines, surface, marks, pinholes, resin imperfections (i.e. haze or dimple), natural aging.
e) Our warranties do not cover scratches and/or stains that are a natural characteristic of our brushed stainless steel, natural stone, solid surface, and wood or resulting from regular wear and tear. We believe such scratches and/or stains only contribute to the raw character of our product surfaces.
- Any repair or replacements of (parts of) Products during the warranty period does not eﬀect the starting date of the warranty period nor results in the warranty period starting new.
- You warrant and represent that:
a) You have suﬃcient financial capacity for each order placed, for which we may require suﬃcient securities as referred to in Section 9.
b) the Products and packaging are in conformity with any applicable non-Dutch regulations of the market(s) where the Products are delivered and distributed, and you indemnify us for any and all claims by third parties, including related costs and damages, in respect thereof.
Section 13. RETURN
- Products that may be returned. Products may only be returned in case of:
a) A cancellation in accordance with Section 5.3;
b) Products that are not defective but do not match the order placed in other aspects (i.e. a wrong Product is delivered).
Any and all returns, for whatever reasons, must be in accordance with this Section 13.2. up until and including Section 13.4.
- Period of return. Returns should be done within 14 days from the date of delivery at the Place of Delivery or delivery at the address specified in Section 8.4., unless a diﬀerent term for return arises from the Agreement, the Terms and Conditions or applicable Dutch law.
- Previous approval. For any return of Products previous approval of Customer Support (Section 18.) is necessary and obligatory, by absence of which we are not able to process your return and the Products remain for you risk and expense.
- Return ad your risk and expense. Return of the Products is for your own risk and expense up until we have received the Products. We are not responsible for returned Products we have not received.
- No return in case of defect. If you receive Products that you believe to be defective or damaged, please notify (without prejudice to Section 11.) Customer Support via e-mail (Section 18.) and include a detailed description of the defect or damage, the invoice number, the Product codes and clear photos supporting your claim. If we consider the claim to be justified we provide the remedy that we at our own discretion find suitable, either by way of sending you a new Product or by reimbursing you fully or in part. Defective or damaged Products cannot be returned but must destroyed at your risk and expense or kept by you. We strongly advise you not to destroy the Products until we have been able to suﬃciently asses or – if found justified by us – settle your claim. Premature destruction that prevents us from adequately assessing your claim gives us no choice but the reject your claim and is therefore for your own risk and expense.
Section 14. IP-RIGHTS
- All rights remain with COCOON. Any and all IP-rights, remain with us at any time. The same applies to all our business properties and other COCOON owned materials in the broadest sense and any rights related arising thereof, whether IP-rights or other rights, such as its corporate identify, social media account(s). Neither the Agreement nor these Terms and Conditions constitute any legal basis for any transfer to you of IP-rights, business properties or other COCOON owned materials.
- No infringement. You shall not take any actions that might infringe any IP-rights of COCOON and its This includes, but is not limited to, a prohibition to fully or partially disclose or reproduce those rights without our previous written permission. You understand and accept that any unauthorized use violates both the Agreement and applicable laws and regulation.
- Third party claims. We are not liable for any claims for damages that you suﬀer as a result of an infringement of third-party IP-rights. You indemnify us against any third-party claims related to an infringement of such IP-rights.
Section 15. CONFIDENTIALITY
- Confidential Information. You shall maintain secret and confidential any and all Confidential Information, such as, but not limited to designs or designer information, any information regarding provided discounts or settlements of claims, photo or video materials, sensitive corporate information, etc. You will not use that information for any purpose other than for the performance of the Agreement or the use of the Products. You are not allowed to disclose or reproduce the Confidential Information.
- Obligation to impose on others. You are obliged to impose the confidentiality obligations in this Section 15. on your employees, agents (sub)distributors, (sub)contractors or any another third parties engaged by you in the performance of the Agreement or the Products as well.
- Survival of termination. The obligation of confidentiality services any termination of the Agreement for as long as we can reasonably claim the confidential character of the information concerned.
- Obligation to return or destroy. Upon either termination of the Agreement and/or an Order or if so requested by us, you must return or destroy all Confidential Information as referred to in Section 13.1.
- Penalty. In case of any violation of this Section 13. you shall immediately and without the need for a notice of default, owe us a contractual fine of € 10.000,– per day/for every day this violation continuous. The total amount of the fine is set to a maximum of € 500.000. In any case the actual damages exceed the amount of the fine, we may elect to demand payment of actual damages instead.
Section 16. LIABILITY
- Usage is your responsibility. We will do our best to perform our duties under the Agreement with all due diligence and expedition. We cannot exert any influence however on the eventual usage that is made of the Products or installation, for which only you and/or the installer are responsible.
- Limitation of liability. Our total liability in the broadest sense, including but not limited to any liability for damages, loss, penalties or any other financial claim made by you is limited to direct damages only and per incident or a series of connected incidents to the price of the specific Product or – if it concerns several Products – the specific Single Order concerned, with a maximum of € 25.000,00.
- Definition of direct damages. Direct damages include only the reasonable costs to determine the cause and the amount of the damages, any reasonable costs to repair the Products or our defective performance and any reasonable expenses incurred to prevent or limit the loss, provided that you are able to prove that those expenses have actually led to a limitation of loss
- Excluded damages and losses. Liability for indirect and/or consequential damages or loss in whatever form, damages due to delay, resulting loss, loss of profit, loss of savings, reduced goodwill, loss due to business interruption, loss as a result of claims by your customers or damages as a result of information or advices given by you of which the content does not explicitly form part of a written agreement, is excluded.
- Third party claims. You shall indemnify us from any and all liability and costs including reasonable attorney’s and/or legal fees, with respect to any suit, claim, or other legal actions made or initiated by a third party, including product liability claims, that involve any of our obligations under this Agreement, either the Periodical Delivery Agreement and/or Single Orders.
- No limitation of liability. This limitation of liability does not apply in case of our willful misconduct or gross negligence
Section 17. FORCE MAJEURE
- Situations of force majeure. We cannot be held liable to perform our obligations under the Agreement in case of force majeure. A force majeure is considered to be any cause or circumstance that is beyond our reasonable control, including without limitation earthquakes, fire, accidents, floods, storms, other Acts of God, riots, wars, rebellions, strikes, lockouts or other labor disturbances, national or international emergencies, failure to secure materials or equipment from usual sources of supply, failure of carriers to furnish transportation, government rules, regulations, acts, orders, restrictions or requirements or any other such circumstances beyond our reasonable control. No such inability to deliver or delay in delivery shall invalidate the remainder of this Agreement.
- Termination due to force majeure. In the event ta situation of force majeure should last more than sixty (60) days we are both entitled to terminate (Dutch: ‘ontbinden’) the Agreement or the Order in writing, in full or in part, unless it is foreseeable that the force majeure situation will be solved within a reasonable period of time. Any performance already delivered under the Agreement will be settled pro rata, without any of us being indebted to the other in any other way.
- Corona Virus. The Parties acknowledge and agree that the virus/disease referred to as ‘coronavirus’ and/or ‘COVID-19’ (“Coronavirus”) is spreading at an accelerating rate and that (governmental) measures – such as but not limited to quarantines and/or lockdowns of companies, factories, cities and even countries – might be taken or decided upon, which might aﬀect delivery of the Products. Since this is a foreseen circumstance, the Parties agree that Supplier cannot be held liable in any way for any delays in delivery of the Products due to and/or in any way related to the Coronavirus, nor does it provide any basis for termination of the Agreement and/or any Order(s). If however the Supplier is unable to deliver the Products for a continuous period of 60 days, either Party may terminate the specific Order(s) concerned, in whole or in Part, without any penalty or liability for the Party rightfully exercising that termination and without aﬀecting the validity of this Agreement or any other provisions in it, which shall remain in full force.
Section 18. CUSTOMER SUPPORT
- Contact us. If you have a query regarding any Agreement, you can contact us via our Customer Support or – where relevant – in accordance with specific contact arrangement made in the Agreement.
- Contact details. Our Customer Support is accessible via [email protected], via +31 (0) 20 808 7557 or by using our only enquiry system.
Section 19. WEBSITE
- Applicability of Terms and Conditions. The Website contains information regarding COCOON, our Products and our services. The use of the Website and the information included is subject to these Terms and Conditions.
- No liability for the Website. We cannot be held liable for any loss or damage caused or connected with the use of our Website or the information contained therein, unless where it concerns deliberately reckless or intentional misconduct. The Website also includes links to third-party websites or materials of which we have no control and accept no liability. Although we aim to oﬀer you the best service possible, we make not promise that the services at this Website will meet your requirements. We cannot guarantee that the service is fault-free. If a fault occurs in this Website you should report it to the Customer Support (Section 18.) and we will try to correct the fault as soon as possible.
- IP-rights. The Website consists of and contains materials protected by our IP-rights, to which Section 14. applies. The copying, making public, and/or modifying any (part of) the Website requires our previous written consent.
- Website maintenance. Access to the Website might be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will always attempt to restore the service as soon as we reasonably can.
- Website suggestions. If you have any suggestions for improvements of the Website, we refer you to our Customers Support (Section 18.) who will be pleased to hear from you.
- Registration to Website. To make optimal use of the Website, you can register using the registration form/the account sign-in option on the Website.
- User name and password. During the registration process, you will be asked to choose a user name and password with which he can log on to the Website. You alone are responsible for choosing a suﬃciently reliable password.
- Confidentiality. You must keep your login credentials, user name and password strictly confidential. We cannot be held liable for any misuse of the login credentials and we are always entitled to assume that the Client who logs on to the Website is the party that it professes to be. You are responsible for and bear the full risk of any and all actions and transactions performed via your
- Unauthorized access. If you know or have reason to suspect that your login details have become available to unauthorized parties, you will be required to change your password as soon as possible and/or to notify us accordingly so as to allow us to take appropriate measures.
Section 20. MODIFICATIONS TO TERMS AND CONDITIONS
- Application of modified Terms and Conditions. We reserve the right to alter or supplement these Terms and Conditions. The modified Terms and Conditions apply for all new Agreements. Subject to a thirty (30) days’ notice the modified Terms and Conditions also apply all Periodical Delivery Agreements that have already been concluded.
- Publication. Modifications to our Terms and Conditions are published on the Website and/or announced to you via e-mail. Modifications that are of secondary importance may be implemented at any time and require no previous or further communications.
Section 21. MISCELLEANEOUS
- Applicable law. All matters relating to the interpretation, performance, any rights and obligations of the Parties under the Agreement and these Terms and Conditions Agreement and all orders, deliveries and other agreements deriving from it, either in writing or oral, shall be are governed by and construed in accordance with Dutch law.
- Competent court and Arbitration.
a) In the case that you as the Client is resident of and/or established in the EU, the UK, Switzerland, Norway and/or Iceland, any and all disputes out or in connection with this Agreement and all orders and other agreements deriving from it, which the Parties are unable to resolve between themselves, are exclusively settled by the competent court of the place where we holds our warehouse (hence from where goods are transported) in The Netherlands. That is currently the Court of Amsterdam.
b) In the case that you as the Client is resident of and/or established in another country outside the scope of the territory as stipulated in Section 21.2.a., all disputes arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The arbitral tribunal shall be composed of one arbitrator. The arbitral tribunal shall be appointed according to the list procedure. The place of arbitration shall be Amsterdam, The Netherlands. The proceedings shall be conducted in the Dutch language.
- Headings. The headings in the Terms and Conditions are inserted for convenience only and do not aﬀect its interpretation. English language words used intend to describe Dutch legal concepts and the consequences of the use of these words in English law or any other foreign law shall be disregarded.
- In writing. Where these Terms and Conditions refer to ‘in writing’ communications via e-mail or facsimile is included, provided that the identity of the sender and integrity of the e-mail can be suﬃciently determined.
- Invalid provisions. If at any time any clause or part of the Terms and Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid or unenforceable in any respect, that shall not aﬀect any other provisions of the Terms and Conditions which shall remain in full force and eﬀect and the Parties shall in good faith amend and, if necessary, novate the contested provisions to reflect as nearly as possible the spirit and intention behind that illegal, invalid or unenforceable provision so that the amended clause complies with the applicable laws.
- Assignment. You may not assign, sub-license or otherwise transfer any of your rights under these Terms and Conditions. We are entitled to transfer our rights and obligations under the Agreement to any third party that acquires (decisive control in) COCOON or COCOON’s business activities.