Article 1. Definitions 2Article 2. Identity of Sybotanica B.V. 2
Article 3. General provisions 2
Article 4. The offer 3
Article 5. The Agreement 3
Article 6. The right of withdrawal 4
Article 7. Dissolution and notice periods 4
Article 8. Liability 4
Article 9. Force majeure 5
Article 10. Prices 5
Article 11. Payment and invoices 6
Article 12. Delivery 6
Article 13. Complaints 7
Article 14. Transfer of rights 7
Article 15. Retention of lien 7
Article 16. Intellectual property 8
Article 17. Confidentiality 8
Article 18. Exclusivity 8
Article 19. Rights of settlement and suspension 8
Article 20. Applicable law 8
Article 21. Survival 9
Article 22. Amendment or supplementation 9
Article 1. Definitions
In these general terms and conditions the following definitions apply:
- Sybotanica B.V.: the company as defined in article 2 of these general terms and conditions;
- Other Party: the (legal) person which Sybotanica has entered into an agreement with or is entering into an agreement with;
- Agreement: every Agreement between Sybotanica and the Other Party for the delivery of goods by Sybotanica to the Other Party
- Parties: Sybotanica and the Other Party collectively or each as an individual contracting party;
- Written: by post, by e-mail, or by any electronic means;
- Third Party(ies): (legal) persons, not being Sybotanica or the Other Party;
- Products: all tangible Products offered by Sybotanica. They include, but are not limited to plants, terrariums and soil;
- BW: Burgerlijk Wetboek, referring to the civil code of the Netherlands.
Article 2. Identity of Sybotanica B.V.
Business name: Sybotanica B.V.
Trade name: Sybotanica, SYBASoil
Street name and number: Velperbuitensingel 13C
Postal code and place of business: 6828 CV Arnhem
Dutch Chamber of Commerce number: 81937709
Article 3. General provisions
- These general terms and conditions apply to every offer and all (legal) acts of Sybotanica and to every Agreement reached between Sybotanica and the Other Party.
- If the Agreement is concluded electronically, contrary to the previous paragraph and before the Agreement is concluded, the text of these general terms and conditions can be made available to the Other Party electronically in such a way that the Other Party can store these on a durable data carrier. If this is not reasonably possible, it will be indicated before the Agreement is concluded where the general terms and conditions can be accessed electronically and that they will be sent to the Other Party free of charge electronically or otherwise at the request of the Other Party.
- If a provision of these general terms and conditions or an Agreement proves to be null and void or is nullified, then this will not affect the validity of the entire general terms and conditions or Agreement. The Parties will enter into consultations in order to agree upon a new provision to replace the invalid or annulled provision, whereby the purpose and scope of the void or voided provision are taken into account as much as possible.
- Unless explicitly agreed upon otherwise in Writing, the applicability of other general terms and conditions is excluded.
- Deviations or additions to these general terms and conditions are only valid if they have been explicitly agreed upon in Writing.
- These general terms and conditions also apply to future and/or additional orders.
Article 4. The offer
- If an offer has a limited period of validity or is made subject to conditions, then this will be explicitly stated in the offer.
- The offer contains a complete and accurate description of the Products offered. The description is sufficiently detailed to allow a proper assessment of the offer by the Other Party. If Sybotanica uses images, these are a true representation of the Products offered. However, natural Products are unique and can therefore differ reasonably. The Other Party must therefore understand that Products can sometimes deviate from the images that have been used.
- Obvious mistakes or errors concerning for example amounts shown on offers or on web pages from Sybotanica, are not binding for Sybotanica.
Article 5. The Agreement
- The Agreement is concluded at the time of acceptance of the offer by the Other Party and compliance with - if any - the corresponding conditions.
- An offer can only be concluded if the Other Party has actually placed an order through the website. The mere addition of a product to the digital shopping basket in the Sybotanica webshop does not constitute acceptance nor does it imply an obligation on the part of Sybotonica.
- Sybotanica reserves the right not to execute a concluded Agreement, for example if it has reasonable doubts or information that the Other Party will not (be able to) meet its (financial) obligations. If Sybotanica refuses, it will inform the Other Party in Writing of the refusal within a reasonable period after the conclusion of the Agreement.
- Agreed delivery periods are always indicative periods. Therefore, the delivery periods for delivery are not strict deadlines. Exceeding a delivery period therefore does not entitle the Other Party to compensation.
- If the Other Party has accepted the offer electronically, Sybotanica will confirm receipt of the acceptance of the offer electronically.
- Sybotanica is entitled to engage Third Parties for the execution of the Agreement.
- The effect of article 7:404 BW and article 7:407 paragraph 2 BW is excluded.
- Sybotanice cannot guarantee that the work it carries out will always achieve the result desired by the Other Party. The accepted order leads to an effort commitment and not to a result commitment.
- The Other Party may not resell the Sybotanica Products on online marketplaces. Online marketplaces are understood to include, but not be limited to Amazon, Bol.com, Ebay and Marktplaats.
- The Other Party is not allowed to provide Sybotanica Products with their own packaging.
- If the Other Party breaches paragraph 9 of this article, the Other Party will, irrespective of whether the breach is attributable to the Other Party and without prior notice of default or legal proceedings, owe Sybotanica an immediately payable penalty of 2,000 euros (two thousand euros) for each breach without the need for any form of damage, without prejudice to Sybotanica's other rights, including its right to claim damages in addition to the penalty.
Article 6. The right of withdrawal
- The Other Party shall not have the right to return Products purchased from Sybotanica
Article 7. Dissolution and notice periods
- If the Other Party does not fulfil one or more of its obligations, or does not fulfil them on time or adequately, is declared bankrupt, applies for (temporary) suspension of payments and/or deferral of payments, proceeds to liquidate its business, or if its assets are seized in whole or in part, Sybotanica has the right to suspend the execution of the Agreement or to terminate and/or dissolve the Agreement by operation of law and without prior notice of default in whole or in part by means of a Written statement, all this at its discretion and always without prejudice to any of its rights to compensation for costs, damages and interest.
- If the Agreement is terminated on the grounds of force majeure, Sybotanica is entitled to payment for the hours already worked or the investments already made at the time of the termination of the Agreement.
- Notice of termination of an Agreement must be given in Writing, subject to a notice period of 1 (one) month if the Agreement is terminated within the first year of the Agreement. In the second year of the Agreement, a notice period of 2 (two) months must be observed. From the third year onwards, the period of notice must be 6 (six) months.
Article 8. Liability
- Sybotanica is not liable for direct and/or indirect damage. The liability of Sybotanica for damage resulting from intent or deliberate recklessness on the part of Sybotanica is not excluded.
- If Sybotanica is nevertheless liable for direct damage, Sybotanica's total liability will be limited to compensation for damage up to a maximum of the invoice amount of the Agreement (excluding VAT).
- The amount of the compensation will never exceed the amount paid out by Sybotanica’s liability insurance.
- Direct damage is understood to mean:
- Reasonable costs that the Other Party would have to incur to have the performance of Sybotanica comply with the Agreement; however, this replacement damage will not be compensated if the Agreement is terminated by or at the request of the Other Party;
- Reasonable costs incurred to determine the cause and extent of the damage insofar as the determination relates to damage within the meaning of these terms and conditions;
- Reasonable costs incurred to prevent or limit damage insofar as the Other Party demonstrates that these costs have resulted in limitation of damage within the meaning of these terms and conditions.
- The Other Party indemnifies Sybotanica against any claims from Third Parties that suffer damage in connection with the performance of the Agreement.
- A condition for any right to compensation to arise is always that the Other Party reports the damage to Sybotanica in Writing as soon as possible after it has arisen. Any claim for compensation against Sybotanica expires by the mere lapse of 12 (twelve) months after the claim arose.
- Sybotanica is not liable for damage caused by auxiliary persons as referred to in article 6:76 BW.
- Sybotanica is not liable for damage, of whatever nature, that has arisen because Sybotanica relied on incorrect and/or incomplete information provided by the Other Party.
- Sybotanica is not liable for damages of any nature whatsoever, arising because it appears that indoor or outdoor plants or alive animals have a disease, die or otherwise fail to comply with the Agreement as intended by Parties on or after delivery. If the Other Party believes that the disease was already present at delivery, the Other Party must inform Sybotanica as soon as possible.
- Sybotanica is not liable for damage, of whatever nature, that has arisen because it appears that an indoor or outdoor plant or other natural product contains an organism that is spreading undesirably on or after delivery.
Article 9. Force majeure
- In addition to the provisions of article 6:75 BW, a shortcoming by Sybotanica in the fulfillment of any obligation towards the Other Party cannot be attributed to Sybotanica in the event of a circumstance independent of Sybotanica's will, as a result of which the fulfillment of its obligations towards the Other Party are wholly or partially prevented or as a result of which the fulfillment of its obligations cannot reasonably be expected of Sybotanica. These circumstances include but are not limited to: defaults on the part of suppliers or other Third Parties, power failures or other technical malfunctions, the failure of vehicles and equipment with which the Products have to be transported, absenteeism and/or incapacity for work, natural disasters, theft, destruction and consequences of pandemics/epidemics and government measures.
- If a situation as referred to in paragraph 1 of this article arises as a result of which Sybotanica can not fulfill its obligations towards the Other Party, those obligations will be suspended as long as Sybotanica can not meet its obligations. If the situation referred to in the previous sentence has lasted 30 (thirty) calendar days, both Parties have the right to (partially) terminate the Agreement in Writing. In that case Sybotanica is not obliged to pay compensation for any damage, even if Sybotanica gains any advantage as a result of the force majeure situation. If the Agreement ends due to force majeure, Sybotanica is entitled to payment for the hours already worked or investments already made at the time of termination of the Agreement.
Article 10. Prices
- All amounts are in Euros. Whether amounts are inclusive or exclusive of VAT and other government taxes shall be agreed by the parties.
- Sybotanica reserves the right to implement an inflation correction once a year.
- Any import costs or other government levies/taxes are at the expense of the Other Party, unless stated or agreed to otherwise.
- Prices indicated on Sybotanica webpages apply at the time of placing an order. Sybotanica is never obliged to use prices that applied earlier or later than at the time an order is placed.
- The agreed amounts are based on cost price determining factors at the time of the offer. Sybotanica reserves the right to pass on to the Other Party, 3 (three) months after concluding the Agreement, any changes in cost price determining factors over which Sybotanica has no reasonable influence, such as increases in excise duties, social security contributions, insurance payments or turnover tax, up to a maximum of 20% of the original amount.
- A combined quotation does not oblige Sybotanica to execute part of the offer for a corresponding proportion of the quoted amount.
- Prices, discounts and quoted amounts do not automatically apply to future orders.
Article 11. Payment and invoices
- Unless otherwise stipulated in the Agreement or additional conditions, the amounts owed by the Other Party must be paid immediately after the invoice date.
- The Other Party is obliged to immediately report inaccuracies in provided or stated payment details to Sybotanica.
- If the Other Party does not fulfill its payment obligation(s) on time, Sybotanica will notify them of the late payment and the Other Party will be granted a period of 7 (seven) days to still fulfill its payment obligations. After non-payment within this seven-day period, the Other Party is in default and therefore also owes the statutory commercial interest (‘wettelijke handelsrente’) on the amount owed. In addition, Sybotanica is entitled to charge extrajudicial collection costs incurred by it.
- In the event of (reasonable prospect of) bankruptcy, liquidation or suspension of payments or debt rescheduling in the context of the ‘WSNP’, the claims of Sybotanica on the Other Party against Sybotanica are immediately due and payable.
- Payments made by the Other Party always serve to settle in the first place all interest and costs owed, in the second place of due and payable invoices that have been outstanding the longest, even if the Other Party indicates that the payment relates to a later invoice.
Article 12. Delivery
- The place of delivery is the address that the Other Party has made known to Sybotanica .
- Sybotanica is authorized to suspend the delivery of Products until all outstanding claims against the Other Party have been paid in full.
- If delivery of an ordered product proves impossible, Sybotanica will endeavor to provide a replacement product. At the latest upon delivery, it will be stated in a clear and comprehensible manner that a replacement item is being delivered. For replacement items, the right of withdrawal can not be excluded. The costs of any return shipment are at the expense of Sybotanica.
- The risk of damage and/or loss of Products rests with Sybotanica until the moment of delivery with the Other Party or a representative appointed in advance and made known to Sybotanica , unless explicitly agreed otherwise.
- All delivery times and periods are indicative. The Other Party cannot derive any rights from any stated or stated times or periods. Exceeding a period does not entitle the Other Party to compensation of any sorts.
- If a product turns out to be out of stock, Sybotanica will inform the Other Party of this and will give the Other Party a new indicative delivery period.
- Sybotanica is not obligated and cannot guarantee that the Other Party can track its order via package tracking systems.
Article 13. Complaints
- The Other Party can not appeal to a defect anymore if he does not complain within 2 (two) months after he discovers the defect or reasonably should have discovered the defect. If there is a visible defect , a period of 48 (forty-eight) hours applies.
- If the Other Party believes that there is a visible defect at the time of delivery, they must enclose a photo of the defect with their complaint, so that Sybotanica can make a proper assessment of the complaint.
- The Other Party shall in any case grant Sybotanica 4 (four) weeks to resolve the complaint in mutual consultation.
- If a complaint is not reported to Sybotanica within the periods stated in the previous paragraphs, the product is deemed to comply with the Agreement and to function in accordance with the Agreement.
- Complaints do not suspend the Other Party's obligation to pay, in case the Other Party is not acting as a Consumer.
Article 14. Transfer of rights
- Rights of the Other Party arising from this Agreement or these general terms and conditions cannot be transferred without the prior Written consent of Sybotanica. This provision applies as a clause with property law effect as referred to in Article 3:83 paragraph 2 BW.
Article 15. Retention of lien
- The ownership of all Products sold and delivered by Sybotanica to the Other Party remains with Sybotanica as long as the Other Party has not paid claims under the Agreement (or similar earlier or later Agreements), and as long as the Other Party has not yet paid the claims of Sybotanica due to failure to fulfill their obligations. This also includes claims with regard to fines, interest and costs. All this, as referred to in art. 3:92 BW.
- Sybotanica will, where appropriate, be entitled to unhindered access to the Product to take the Product back. The other party will cooperate with Sybotanica in order to let Sybotanica execute its retention of title as stated in paragraph 1 of this article, including cooperation in any necessary disassembly .
- The Other Party is not authorized to pledge or otherwise encumber the items subject to retention of title.
- The Other Party now gives unconditional and irrevocable permission to Sybotanica or a Third Party to be appointed by Sybotanica to, in all cases in which Sybotanica wishes to exercise its property rights, enter all those places where its properties will be located and to take those items there.
- If Third Parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Other Party is obliged to inform Sybotanica of this as soon as may reasonably be expected.
Article 16. Intellectual property
- Sybotanica has the right to use the name and logo of the Other Party as a reference or for promotion.
- The Other Party is not entitled to use the name, logo and content of (the website of) Sybotanica.
- The Other Party indemnifies Sybotanica against the claims of Third Parties regarding intellectual property rights.
- If the Other Party breaches paragraph 2 of this provision, the Other Party will, irrespective of whether the breach is attributable to the Other Party and without prior notice of default or legal proceedings, owe Sybotanica an immediately payable penalty of 20,000 euros (twenty thousand euros) for each breach without the need for any form of damage, without prejudice to Sybotanica's other rights, including its right to claim damages in addition to the penalty.
Article 17. Confidentiality
- The Other Party is obliged to keep all confidential information, which the Other Party has obtained from Sybotanica within the framework of the Agreement, confidential. Information is confidential if this is communicated by Sybotanica or if this reasonably follows from the nature of the information.
- If the Other Party breaches paragraph 1 of this provision, the Other Party will, irrespective of whether the breach is attributable to the Other Party and without prior notice of default or legal proceedings, owe Sybotanica an immediately payable penalty of 20,000 euros (twenty thousand euros) for each breach without the need for any form of damage, without prejudice to Sybotanica's other rights, including its right to claim damages in addition to the penalty.
Article 18. Exclusivity
- For the duration of the Agreement, the Other Party grants the Sybotanica the exclusive right to carry out the assigned assignment
Article 19. Rights of settlement and suspension
- The right of suspension and the right of settlement of the Other Party, not acting as a Consumer, are excluded.
Article 20. Applicable law
- Agreements between Sybotanica and the Other Party to which these general terms and conditions apply are exclusively governed by Dutch law.
- If and insofar as any provision of these general terms and conditions cannot be invoked on the grounds of reasonableness and fairness or the unreasonably onerous nature, the relevant provision will in any case have a meaning that is as similar as possible with regard to content and scope, so that it can be invoked.
- In the event that these general terms and conditions and the Agreement contain conflicting conditions, the conditions included in the Agreement will apply.
- All disputes related to Agreements between the Other Party and Sybotanica, to which these terms and conditions apply and which do not fall within the competence of the subdistrict court (kantonrechter), will be settled by the competent court in the district where Sybotanica is located, unless the law requires otherwise.
Article 21. Survival
- The provisions of the general terms and conditions and the Agreement that purport to remain valid after termination of the Agreement, including but not limited to article 8 (Liability), article 16 (Intellectual property), article 20 (Applicable law) and this provision (Survival) will remain in full force after termination of the Agreement.
Article 22. Amendment or supplementation
- Sybotanica is entitled to unilaterally amend or supplement these general terms and conditions. In that case, Sybotanica will inform the Other Party in time of the changes or additions.
- There will be a minimum of 30 (thirty) days between this notification and the entry into force of the amended or supplemented conditions.
- If the amendment gives Sybotanica the authority to deliver a performance that differs substantially from the promised performance, the Counterparty is entitled to refuse the amended conditions or to dissolve the Contract.