1.1. These General Terms and Conditions of Sale and Delivery of On Another Level. On Another Level will apply to all quotations, agreements and other legal relationships in respect of the sale and delivery of all products and/or related services supplied and to be supplied by On Another Level (hereinafter the "Products") to the purchaser (hereinafter the "Customer"). By placing an order and/or signing these conditions, the applicability of any other general conditions of the Customer is expressly excluded. These General Terms and Conditions of Sale and Delivery (as amended from time to time) can be provided to the Customer electronically.
2 ACCEPTANCE AND ORDERS
2.1. The quotations issued by On Another Level are subject to contract. An agreement with On Another Level is formed by signing the order or as a result of the Customer's issuing a written confirmation to that effect. On Another Level may refuse to accept an order. By placing an order the Customer accepts the General Terms and Conditions of Sale and Delivery. Any adjustment, amendment or cancellation of these General Terms and Conditions of Sale and Delivery will be accepted only if expressly confirmed in writing by a duly authorized representative of On Another Level.
2.2. The Customer will notify On Another Level in writing of any inaccuracies or alleged inaccuracies in the order form within ten days of placing the order.
2.3. On Another Level will be authorized to correct any manifest mistakes and clerical, printing or arithmetical errors in quotations and order forms. If the Customer has already placed an order with On Another Level, On Another Level may deliver based on the corrected order form.
2.4. On Another Level will be authorized to replace the Products ordered by the Customer with similar Products' upon written notice to the Customer in advance, provided that the Customer has not objected within 15 workdays of the date of On Another Level's notice.
2.5. The Customer may cancel an order in writing only within ten workdays of placing the order, unless expressly agreed otherwise in writing between On Another Level and the Customer. If the Customer cancels an order after expiry of ten workdays of placing the order, the Customer will pay On Another Level 50% of the order amount by way of contribution to the costs that On Another Level will in such event be deemed to have incurred in preparation of the delivery, without prejudice to On Another Level's other rights pursuant to the law or the agreement, including but not limited to the right to claim performance and/or damages as a result of cancellation of an order to be recovered by On Another Level from the Customer.
3 PRICES AND PRICE LISTS
3.1. All prices are inclusive of value added tax (VAT) and other government-imposed levies, and exclusive of costs of transport.
3.2. Any prices and discounts published or stated in catalogues or price lists may at any time be changed without notice, and all orders will be accepted on the condition that they will be charged at the prices prevailing at the date of the invoice.
4 DELIVERY AND RISK
4.1. On Another Level will deliver the Products (as per the 2010 Incoterms) at the agreed location, or ship the Products for delivery to the agreed location, in the manner stated in the order or the written agreement or agreements ensuing from it.
4.2. The risk of the Products will pass to the Customer upon valid and/or physical delivery thereof, i.e. arrival on the premises of the Customer or a third party designated by the Customer.
4.3. The Customer will be under an obligation to take delivery of the Products at the agreed location or locations at the time of delivery by or on behalf of On Another Level, or at the time of making the Products available to the Customer in accordance with the agreement. In the event of failure by the Customer to comply with this obligation, all costs ensuing from such failure will be payable by the Customer.
4.4. The mere fact that a delivery period is exceeded cannot be deemed to constitute failure on the part of On Another Level. In such event the Customer will, however, be authorized to demand delivery within a reasonable term, failing which the Customer will be authorized unilaterally to dissolve the agreement by registered letter pursuant to non-performance of all or part of the agreement, however without any right arising on the Customer's part to claim damages. The Customer will not be authorized to dissolve all or part of the agreement if the Customer itself is in default.
4.5 Purchased items will be shipped within 5 business days of the order, although most will be within 2 to 3. Please allow up to 2 weeks for delivery to arrive (outside The Netherlands), and 3 days within Europe. If you still have not received your purchase after 3 weeks, please notify On Another Level support-mail. Buyer assumes any and all duties and customs costs for orders shipping outside of the Netherlands /Europe and will be contacted in advance should additional charges need to be made. On Another Level is not responsible for any lost, stolen or damaged shipments. All domestic shipments are sent with a delivery confirmation and the buyer assumes all responsibilities of lost items.
5.1. Until the agreed price has been paid in full on any basis whatsoever, and without prejudice to any advanced due date, including interest and costs:
5.1.1. title and entitlement to the Products will not pass to the Customer (despite delivery of the relevant Products and passing of the risk thereof);
5.1.2. On Another Level will at all times be entitled to reclaim and resell the Products as On Another Level property (if in the possession or control of the Customer) without any authorization of the Customer or the court to that effect being required. With respect to the exercise of its rights pursuant to the present subparagraph (ii), On Another Level, its employees or agents will have free and unhindered access to the premises and/or other locations of the Customer where the Products are located using any necessary and appropriate means of transport. Furthermore, in such event any claims that On Another Level may have will be immediately due and payable; and
5.1.3. the Customer is to keep the Products in appropriate custody for On Another Level without any costs for On Another Level. On Another Level may at all times inspect the Products kept in custody during regular business hours, after reasonable notice to the Customer. The Customer is to keep the Products in custody so as to make it clear that they are On Another Level property, is to take out full insurance for the Products against fire and theft, and is to notify its insurers that the Products are On Another Level property.
5.2. The Customer is hereby authorized to sell the Products on behalf of On Another Level in the ordinary course of its business, but the Customer's right to resell the Products will be automatically cancelled if any of the events referred to in Article 13 occurs and/or the Customer fails to pay any amount to On Another Level when due pursuant to an agreement.
5.3. Nothing in this article:
5.3.1. represents, or may be construed as, an appointment of the Customer as an On Another Level agent; or
5.3.2. will entitle the Customer to issue any warranties or representations to third parties in respect of the Products that will bind On Another Level, unless On Another Level has authorized the Customer in writing to do so.
5.4. The rights and remedies conferred on On Another Level in this article will apply in addition, and without prejudice, to all other rights or remedies that On Another Level may have under the agreement, without limitation.
5.5. The total price will not be deemed to have been paid until payment has been made in accordance with the relevant conditions.
6.1. If On Another Level is to supply or deliver any Products in accordance with periodical delivery schedules or a similar notice of delivery requirements to the Customer, the Customer will not be entitled to cancel or change any such delivery schedule or delivery requirement without the prior consent of On Another Level, and On Another Level will be entitled to reimbursement of any and all additional costs and expenses incurred as a result of such cancellation or change.
6.2. In the event that performance of the agreement is suspended at the Customer's request, or delayed as a result of default on the part of the Customer because the Customer refuses to take delivery of, and/or collect, the Products for a period of seven days or longer after the agreed delivery date, On Another Level will be entitled to full payment of the agreed price of the Products delivered or ordered, including costs of storage and insurance. In addition, On Another Level's obligation to deliver will be cancelled.
6.3. In the event that On Another Level is precluded from delivering part of the Products due to any of the causes referred to in Article 6.2 above, On Another Level is to deliver such part of the Products as it is able to deliver, and the Customer is to take delivery of, and pay for, such part of the Products.
6.4. On Another Level will not be liable to the Customer, and will not be deemed to be in default in the performance of the agreement, in the event that any delay or default is attributable to a cause beyond On Another Level's reasonable control ("force majeure"). Without prejudice to the general applicability of the foregoing, force majeure will in any event include: (i) natural disaster, explosion, flood, storm, fire or accident, war or threat of war, sabotage, riot, civil commotion or requisition; (ii) import or export regulations or bans; (iii) strike, lockout or other trade conflict (involving employees of On Another Level or third parties); (iv) problems in obtaining raw materials, labour, fuel, machine parts; (v) power failure or defects in machinery and equipment.
6.5. If the temporary situation of force majeure exceeds a period of one month, either party may dissolve the agreement, without any right
arising to claim damages. In the event of dissolution any performance rendered under the agreement will be settled on a pro rata basis.
7 ACCEPTANCE OF PRODUCTS
7.1. Without prejudice to the Customer's rights under Article 9, the Customer will be deemed to have accepted the Products as being in conformity with the agreement, and the Customer will be under an obligation to pay for the Products, unless On Another Level receives a written notice of rejection within seven days of delivery, containing an exact description of the reason for rejection of the Products, save in the circumstances referred to in Article 9. Once accepted by the Customer, Products can no longer be returned. In the event that, after notice of rejection, the Customer behaves as the owner of the Products or the Customer's behaviour is inconsistent with such rejection or the title to the Products vesting in On Another Level, the Customer will be deemed to have accepted the Products and will be under an obligation to pay the agreed price. The foregoing provision will also apply as soon as the Customer has processed or adapted all or part of the Products or mixed them with other items.
7.2. On Another Level have made every effort to display as accurately as possible the colors of our products that appear at the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
8.1. Unless provided otherwise in the agreement, the agreed price of the Products is to be paid within 30 days of the date of On Another Level's invoice.
8.2. For purposes of the agreement the agreed payment period will constitute a firm deadline, and failure to pay within the specified term will entitle On Another Level to suspend further delivery of the Products - including Products under other outstanding orders - pending payment and/or to dissolve the agreement and deliver the Products to third parties, without prejudice to any other remedies that On Another Level may have.
8.3. The Customer will not have any right to any discount, set-off or suspension.
8.4. If at any time On Another Level should doubt the Customer's creditworthiness, On Another Level will be entitled, before continuing performance, to require that the Customer pay in advance or provide proper security in the amount of any claims - either due and payable or otherwise - that On Another Level may now or in the future have against the Customer under the agreement, at On Another Level's discretion, and without prejudice to On Another Level's other rights pursuant to the agreement or the law.
8.5. In the event that the Customer fails to make full payment of the amounts due within the agreed term, the Customer will pay interest equal to 1% per month on the outstanding amount from the due date of the relevant amount until the date of payment, without prejudice to On Another Level's other rights. In addition, all reasonable costs to obtain payment out of court will be payable by the Customer,including but not limited to costs of debt collection agencies, bailiffs and lawyers, including costs of warnings, notices of default, and reminders to be sent, the amount of which is set at a minimum of 15% of the total amount outstanding, without prejudice to On Another Level's right to recover the actual costs from the Customer.
8.6. Any payment made by the Customer will at all times first be applied to payment of all interest and costs due, and subsequently to payment of those invoices due and payable that have been outstanding the longest, even if the Customer states that the payment relates to a later invoice.
9 DEFECTS AND SHORTCOMINGS
9.1. On Another Level reserves the right to inspect all allegedly defective Products before replacement and will not accept any return shipments of Products made specially and correctly to order later than seven days after delivery or return shipments of any other nature in which the Products are not in clean and marketable conditions (i.e. including barcode identification). In the event that the Customer could not reasonably discover the defect until a later date (i.e. hidden defects), the relevant written claims are to be in On Another Level's possession within seven days of discovery of the defect. On Another Level will not be liable for any loss of, or damage to, Products returned by a carrier selected by the Customer.
9.2. In the event that the returned Products are defective in On Another Level's opinion, and the defect is attributable to defects in materials or workmanship or any other factor for which On Another Level is responsible, On Another Level will replace the relevant Products or credit the Customer for their value, at On Another Level's option.
9.3. Products will not be deemed defective if they only show discrepancies in terms of quality, dimensions, colour, design, weight and/or finishing that are customary in trade or of minor significance.
9.4. On Another Level will not be liable, either in contract or otherwise, for any defects or non-conformity of the Products as compared to a specification or sample, or for any personal injury, damage or loss as a result of any such defects.
10 LIMITATION OF LIABILITY
10.1. Any liability on On Another Level's part, in contract, in tort, or otherwise, in respect of defects in the Products, or in relation to breach of the present agreement or any obligation vis-à-vis the Customer in connection with the present agreement, will be limited to the total net price of the value of the defective Products sold pursuant to the relevant agreement.
10.2. In no event will On Another Level be liable, on any legal basis whatsoever, for trading loss or consequential damage, including but not limited to loss of turnover, profits or goodwill.
10.3. The Customer will indemnify On Another Level against any third-party claims in respect of damage relating to the Products supplied by On Another Level or otherwise relating to the agreement entered into between the Customer and On Another Level.
11 RETURN SHIPMENTS
11.1. The Customer is obliged to notify On Another Level before returning any defective Products and the Customer may not send any return shipments without On Another Level's authorization. All return shipments are to be accompanied by a completed return form to be designated by On Another Level, stating the return shipment authorization number. All Products returned will be collected by On Another Level from the Customer at a location and time subsequently to be agreed. The Customer will arrange proper presentation of the Products, failing which a surcharge equal to 25% of the agreed price will be charged by way of compensation of costs.
11.2. Returned Products that do not show any defects will not be accepted, and Products unsold by the Customer cannot be returned.
12 PRODUCT RECALLS
12.1. In the event that a defect in the Products supplied (including their packaging) comes to the knowledge of either party, the relevant party will immediately notify the other party of such defect, stating:
- the nature of the defect;
- the relevant Products;
- any other information that may be relevant.
12.2. In such event On Another Level will be authorized to decide whether or not to take measures, such as discontinuing supplies, blocking stocks (both on the premises of the Customer and on those of the Customer's buyers), and/or recalling Products. The Customer will render all its reasonable cooperation in the implementation of such measures.
12.3. The Customer will be under an obligation to keep confidential all information in respect of measures factually taken or measures that may be taken.
13 BREACH OF CONTRACT AND DISSOLUTION
13.1. On Another Level will have the right to suspend its obligations and/or to dissolve all or part of the agreement with immediate effect, without any notice of default or judicial intervention being required, if:
(a) the Customer is granted a provisional or definitive moratorium on payment of its debts, Customer's bankruptcy is filed for or granted, or the Customer's business is wound up or discontinued;
(b) at On Another Level's reasonable discretion, it is likely that the Customer will not be able to perform its payment obligations or is otherwise not, or no longer, creditworthy;
(c) the Customer, if applicable, exceeds a credit limit granted by On Another Level;
(d) the Customer offers the Products outside the points of sale agreed with On Another Level.
13.2. In the event of dissolution of all or part of the agreement by On Another Level based on the foregoing provisions, the Customer will forfeit to On Another Level an immediately payable penalty equal to fifty percent of the order value of the agreement.
13.3. If at the time of dissolution as referred to herein the Client has already received services in connection with the performance of the agreement, such services and the associated payment obligation or obligations will not be undone, unless On Another Level is in default in the performance of such services. Any amounts that On Another Level has already invoiced prior to dissolution in respect of what On Another Level has already performed or delivered for purposes of performance of the agreement will remain due in full, subject to the provisions of the foregoing sentence, and will become immediately due and payable upon dissolution.
13.4. The Customer may not dissolve the agreement without On Another Level's consent which, if granted, will be deemed to have been granted on the express condition that the Customer will indemnify On Another Level against any loss, damage, claims or actions that may result from such dissolution, unless agreed otherwise in writing.
13.5. In the event of dissolution of the agreement all mutual claims will be immediately due and payable.
14 INTELLECTUAL PROPERTY
14.1. The Customer will at all times refrain from any acts that may impair the distinctiveness or the reputation of On Another Level's trademarks. The Customer will otherwise use On Another Level's trademarks only to the extent permitted by law.
14.2. The Customer will not use any signs, including trademarks and trade names, which are similar to On Another Level's trademarks and/or trade name.
14.3. The Customer may not alter the Products supplied to it in any way whatsoever, including but not limited to modification or removal of the trademarks, etc., affixed.
15 NO CONTINUED PERFORMANCE AGREEMENT
15.1. Unless expressly agreed otherwise in writing, On Another Level and the Customer expressly agree that either party will at all times be authorized to discontinue placing orders or to refuse to accept orders from the other party, as applicable, without any liability arising to pay damages (for example in connection with lost profits or investments made), irrespective of the term of the relationship, the dependence of the parties and/or the expectations that the parties may have had in respect of possible future orders, and any other relevant circumstances.
16 NO WAIVER OF RIGHTS
16.1. On Another Level's rights and remedies under the agreement will not be impaired, forfeited or waived, for example, as a result of On Another Level's granting an extension, or as a result of any default or delay on On Another Level's part to enforce or exercise the relevant rights or remedies.
17.1. The voidness or voidability of any of the provisions hereof will not affect the validity and enforceability of the other provisions.
18 APPLICABLE LAW
18.1. The agreement will be governed by, and construed in accordance with, the laws of the Netherlands. The applicability of the Vienna
Sales Convention (CISG) is expressly excluded.
18.2. Any disputes relating to the agreement between On Another Level and the Customer, or the performance thereof, that cannot be resolved by mutual consultation between the parties will be submitted to the competent court in The Hague, the Netherlands. In derogation of the foregoing, On Another Level may submit a dispute to the competent court in the district where the Customer has its registered office.