General conditions

Willems Winkels BV, also trading under the names Asha International, Beppy, Condommessage, Promocondoom, Photo Condom, hereinafter referred to as “Asha International”.

Article 1. General provisions

1. All offers and deliveries are subject exclusively to the terms and conditions of sale and delivery (“general terms and conditions”) of Asha International. These terms and conditions can also be found online at www.asha.nl.
2. The applicability of the buyer’s general terms and conditions is hereby expressly rejected.
3. If any provision in these general terms and conditions is void or voidable, the provision in question will be replaced by a provision as close as possible to the original provision. The other provisions of these general terms and conditions shall remain in full force and effect.
4. To the extent that these general terms and conditions are also drawn up in a language other than Dutch, the Dutch text shall always prevail.

Article 2. Offers and tenders.

1. All quotations and offers of Asha International are without obligation, unless the quotation stipulates a period for acceptance. In that case, a quotation or offer expires after the relevant period.
2. The agreement is established by Asha International sending a written (by mail and/or by e-mail/fax) order confirmation, or the actual execution of the agreement by Asha International.
3. Offers and promises by representatives and/or buyers of Asha International are only binding if confirmed in writing by Asha International.
4. Images, catalogs, online presentations, samples and drawings provide a general representation of any items offered by Asha International. Normal deviations and variations accepted within the industry are permitted.
5. The prices stated in any quotation or offer are exclusive of VAT and other government levies, unless expressly stated otherwise in writing.
6. A composite quotation does not oblige Asha International to perform part of the assignment at a corresponding part of the quoted price.
7. Product-specific regulations, including rules arising from ISO standards and CE markings, are deemed accepted by the buyer and form an integral part of these terms and conditions.
8. If an order is cancelled, the real costs incurred will be charged, with a minimum of EUR 90.00 if it is an order placed with Condommessage.
9. Asha International may refuse an order without giving reasons.

Article 3. Delivery

1. A delivery period is never a deadline. Asha International will always try to meet a stated delivery time as much as possible. Exceeding the delivery period does not entitle the client to dissolve the agreement in whole or in part.
2. If Asha International creates a design at the request of the Buyer, the delivery time only starts after the Buyer has confirmed that the design is approved.
3. Failure to fulfill an obligation to pay on time suspends the obligation to deliver, as does failure to deliver necessary data and usable designs on time or adequately.
4. Asha International is entitled to charge for more or less deliveries of up to 10% of the quantity ordered.
5. The goods to be delivered shall at all times be transported at the buyer’s risk. Buyer shall be responsible for unloading the delivered goods.

Article 4. Information and data

1. General indications and descriptions of products supplied by Asha International, as included in brochures, lists and the like, are intended only as general information and not as an indication of quality or a form of warranty.
2. The Buyer warrants that the information it provides is accurate and complete and legally permissible for reproduction and/or disclosure. The Buyer hereby indemnifies Asha International against claims and/or damages due to infringement of intellectual property rights, trade names and domain names of third parties.

Article 5. Retention of title

1. All products delivered by Asha International under the agreement remain the property of Asha International until the Buyer has satisfied all of Asha’s claims – including in any case those mentioned in article 3:92 paragraph 2 of the Dutch Civil Code – that Asha International has or will obtain.
2. Products delivered by Asha International may not be resold by the Buyer or used as a means of payment other than in the normal course of its business. The Buyer is not authorized to pledge or otherwise encumber the products covered by the retention of title.
3. If third parties seize the products delivered under retention of title or wish to establish or assert rights to them, the Buyer is obliged to inform Asha International of this immediately (in writing).
4. In the event that Asha International wishes to exercise its property rights indicated in this article, the buyer gives unconditional and irrevocable permission in advance to it and third parties to be appointed by Asha International to enter all those places where the property of Asha International is located and to take back those products.

Article 6. Payment

1. Payment must be made at all times without any discount and/or setoff. The invoice term is a strict deadline. If the client fails to pay within the invoice period, it is legally in default without further notice of default being required. In that case, the total claim of Asha International, including invoices whose due date has not yet expired, will be immediately due and payable at once. Any discounts are then cancelled and the client owes interest of 1% per month. Furthermore, the client owes Asha International all costs, both judicial and extrajudicial, which Asha International has to incur to realise its claim. The extrajudicial collection costs are fixed at 15% of the outstanding amount, without maximum and with a minimum of EUR 50.
2. Asha International is entitled to apply the payments made by the buyer firstly to reduce the (collection) costs, then to reduce the interest falling due and finally to reduce the principal sum.
3. Buyer shall not be entitled to set off or suspend its obligations.

Article 7. Intellectual property rights

1. All intellectual or industrial property rights to all products delivered under the agreement, with the exception of graphic elements supplied by the Buyer, belong exclusively to Asha International or its licensors or suppliers. Insofar as such a right can only be obtained by filing or registration, only Asha International is authorized to do so. The Buyer is not permitted to duplicate, copy or otherwise infringe on the intellectual property rights of Asha International or its licensors or suppliers.
2. The Buyer will immediately inform Asha International if it finds infringements of the intellectual property rights or if third parties claim, or allege that they infringe upon his/her rights. In the event of Asha International taking action with respect to such (alleged) infringement, the Buyer is obliged to cooperate and act in accordance with Asha International’s instructions.
3. The agreement does not include Asha International conducting an investigation into the existence of third party rights and possible forms of protection with respect to the logos, texts, graphic elements or other data and materials supplied by the buyer. The client fully indemnifies Asha International against any claims by third parties in relation to logos, texts, graphic elements or other data and materials supplied by the client and also indemnifies Asha International for all costs incurred by it in connection with these claims.

Article 8. Advertising

1. Asha International delivers in accordance with what is normal and customary in the trade in the matter concerned. The Buyer is obliged to examine the delivered goods, or have them examined, immediately at the time the products are made available to him. Any defects must be reported in writing within 7 days of discovery or after they could reasonably have been discovered by the Buyer and received by Asha International. The Buyer must give Asha International the opportunity to investigate a complaint (or have it investigated).
2. If a claim with respect to a defect is not made in a timely manner, the Buyer is no longer entitled to repair, replacement or compensation and the Buyer must pay all costs incurred by Asha International. In all cases, the right to compensation expires 12 months after the event from which the damage for which Asha International is liable arises directly or indirectly.
3. If it is established that the product is defective and a complaint about this has been made in a timely manner, Asha International will, at its discretion, replace the defective product within a reasonable period of time or provide repair of the defect or refund the invoice amount to the Buyer. In the case of replacement, the buyer is obliged to return the replaced item to Asha International and provide ownership and possession thereof to Asha International, unless Asha International indicates otherwise in writing.
4. Any warranty of Asha International does not apply if:
   • Defects to items result from improper use;
   • Business exposed to extraordinary circumstances;
   • Defects result from use contrary to the instructions for use;
   • The Buyer or third parties engaged by the Buyer have made changes and/or performed other work on the delivered goods without Asha International’s written permission.
5. Any complaint on part of the delivered goods does not suspend the payment obligation of the remaining delivered goods, except for mandatory legal provisions to the contrary.

Article 9. Liability

1. Should Asha International be liable, this liability is limited to what is regulated in this article.
2. Asha International is only liable for direct damages.
3. Asha International is not liable for damage, of any kind, incurred because Asha International has relied on incorrect and/or incomplete and/or unlawful data provided by or on behalf of the Buyer.
4. If Asha International is liable, such liability is limited as follows:
   • Asha International’s liability, insofar as it is covered by its liability insurance, is limited to the amount of the payment made by its insurer plus the deductible.
   • If the insurer in any case does not pay out or damage is not covered by the insurance, the liability of Asha International is limited to the invoice value, at least that part of the invoice to which the liability relates.
   • The foregoing limitations do not apply if the damage is due to intent or gross negligence.
   • Asha International is never liable for indirect damages, including consequential damages, lost profits, missed savings, damage due to business interruption.
5. All rights of action and other powers that the Buyer has against Asha International for whatever reason must be submitted in writing to Asha International under penalty of expiry within 6 months of the time at which they arose or the Buyer became aware of them or could reasonably have become aware of them.
6. The other party indemnifies Asha International against any claims of third parties who suffer damage in connection with the execution of the agreement, unless (and to the extent) this damage is exclusively the result of intent or gross negligence on the part of Asha International or its executives.

Article 10. Other

1. Asha International is entitled to use buyer as a reference, without communicating the results of orders to third parties.
2. In principle, the parties do not enter into a continuing performance agreement unless they have expressly agreed to do so and there is a written agreement to that effect. Asha International is at all times entitled to terminate the agreement subject to a notice period of two months and without being obliged to pay any compensation, unless otherwise determined by written agreement.
3. In the event of a recall, whether as a result of a request from judicial bodies, authorities, on Asha International’s own initiative or another, the Buyer is obliged to cooperate and act in accordance with Asha International’s instructions. Demonstrable and reasonable costs incurred by the Buyer, such as shipping and communication costs, will be reimbursed by Asha International, with the exception of internal costs incurred in the context of handling, such as labor costs.