General Terms and Conditions Purple Frog
These general terms and conditions are used by Purple Frog with registered office and principal place of business in Rossum in the Netherlands, entered in the commercial register of the Chamber of Commerce under number 51116286. These General Terms and Conditions can be viewed at https://www.purple-frog.nl/terms-and-conditions/.
1. Definitions
In these General Terms and Conditions, the following terms are defined as stated below:
1.1. Agreement: the agreement concluded between Purple Frog and the Retailer;
1.2. Retailer: the (legal) person or company who buys products from Purple Frog for commercial use;
1.3. Day: a calendar day;
1.4. Offer: a non-binding proposal of Purple Frog on its website or through e-mail;
1.5. Order: the acceptance by the Retailer of an Offer;
1.6. Product: the product purchased under the Agreement by the Retailer;
1.7. Purple Frog: Purple Frog, the company, registered at the Dutch Chamber of Commerce under number 51115286;
1.8. Terms and Conditions: these general terms and conditions;
1.9. Website: www.purplefrog.nl.
2. Identity of the entrepreneur
2.1. Purple Frog
Rossum
Middelweg 11
5328JC, Netherlands
Telephone number: +31 613131299
Chamber of Commerce number: 51116286
VAT identification number: NL159884810B01
3. Applicability
3.1. These Terms and Conditions apply to all Offers of Purple Frog and on all Agreements closed between the Retailer and Purple Frog.
3.2. Purple Frog and the Retailer explicitly agree that general terms and conditions of the Retailer or any other general terms and conditions will never be applicable to the Agreement, unless expressly agreed on in written.
3.3. If any of the provisions of these Terms and Conditions are void or voidable, this will not bar the validity of the remaining provisions.
3.4. Purple Frog reserves the right to unilaterally amend these Terms and Conditions. An amendment will also apply in respect of Agreements that were concluded prior to the amendment. An amendment will not enter into force until 14 Days after it has been announced on the website of Purple Frog: www.purplefrog.nl. If the Retailer does not accept the amendment it will be entitled to terminate the Agreement during 7 Days after the announcement has been made, effective from the date on which the amendment enters into force by sending an e-mail to: info@purplefrog.nl.
4. Offers and Orders
4.1. All Offers are non-binding unless expressly agreed to otherwise.
4.2. An Offer can be subject to a limited duration or subject to conditions.
4.3. Obvious mistakes or obvious errors in an Offer will not legally bind Purple Frog.
4.4. The Retailer can order Products (Order) by sending an e-mail to Purple Frog.
4.5. The Retailer is responsible for the accuracy of the filed information. Ordered products will be sent to the address filed by the Retailer.
5. The Agreement
5.1. The Agreement will be concluded after written/electronic acceptance by Purple Frog of an Order by the Retailer.
5.2. Purple Frog is authorized to refuse Orders without providing any reason or to attach certain conditions to the delivery of the Products. If an Order is not accepted no Agreement will be concluded and Purple Frog will inform the Retailer within fourteen (14) Days after receiving the Order.
5.3. Purple Frog will take appropriate technical and organizational measures to secure the electronic transfer of data and will ensure a secure web environment and secure electronical pay environment. This is only an obligation to perform to the best of its ability
5.4. Purple Frog may research – within the boundaries of the law – facts about the ability of the Retailer to fulfill its payment obligations, as well as all facts and factors that are important for the fulfillment of the Agreement. If Purple Frog has good reasons to question the ability of the Retailer to fulfill payment obligations, Purple Frog is entitled to implement special conditions to that specific Order or demand financial security for the payment obligations of the Retailer.
6. Price & Payment
6.1. Payment has to be made by the Retailer within 14 Days after receiving the invoice. Exceeding the payment term will be sufficient to constitute default directly. Purple Frog has the right to link conditions to the execution of the Order such as asking for advance payment.
6.2. If the Retailer does not meet its payment obligations in time, Purple Frog is entitled to claim statutory interests on the outstanding amount and extrajudicial costs. These extrajudicial costs will be:
a) 15% of the outstanding amount up to € 2.500,-;
b) 10% over the next outstanding amount of € 2.500,-;
c) 5% over the next outstanding amount of € 5.000,-;
d) The minimum amount of extrajudicial costs is € 40,-.
6.3. Purple Frog is allowed to change prices after conclusion of the Agreement if prices are changing as a result of change of (fiscal) law and regulations.
6.4. The indicated prices for the offered products are in Euro, excluding taxes and excluding handling and shipping costs, possible taxes or other charges, unless mentioned otherwise or agreed upon in writing.
7. Delivery
7.1. Delivery of the Products will be ‘ex works’ (Incoterms). The risk of (damage and/or loss of) Products rests with the Retailer from the moment the Products leave the warehouse of Purple Frog.
7.2. Unless otherwise agreed in writing, delivery of the products shall take place at the address specified by the Retailer on the date specified by Purple Frog. The Retailer shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery.
7.3. Delivery terms specified by Purple Frog are estimate terms only and will never be considered as fatal terms. If Purple Frog is not able to meet delivery dates, Purple Frog shall notify the Retailer and simultaneously inform the Retailer of the anticipated new delivery date. If Purple Frog remains unable to deliver within the new delivery period, Purple Frog has the right to withdraw from the Agreement in full or in part and shall refund any upfront payment paid by the Retailer. Performance shall be deemed unavailable in particular if the supplier of Purple Frog cannot deliver the products to Purple Frog in time. Purple Frog is never liable for costs or damages as a result of late or postponed deliveries of Products.
7.4. If, after conclusion of the Agreement, it becomes apparent that the Retailer cannot sufficiently warrant its solvency thereby putting the payment claim at risk, Purple Frog is entitled to refuse delivery until the Retailer has rendered payment or provided security therefore. If the payment or security is not rendered within 10 Days following a corresponding request, Purple Frog has the right to withdraw from the Agreement.
7.5. If the Retailer is unable to receive or collect the Products, then Purple Frog is entitled to place the Products in storage at the expense of the Retailer. The Retailer shall be liable for any expense associated with the necessary storage of the Products caused by inability of delivery or collection by the Retailer.
7.6. All costs for transport, including but not limited to: taxes and custom duties are for the risk and account of the Retailer.
8. Cancellation of an Order
8.1. Orders cannot be cancelled, unless a written cancelation is send by the Retailer to info@purplefrog.nl within 24 hours after the written/electronical acceptance ex article 5.1 of these Terms of Conditions has been send by Purple Frog. If the Retailer cancels an Order, Purple Frog is entitled to charge the Retailer for any losses (including -but not limited to- transport costs), suffered as a result of the cancellation.
8.2. Purple Frog is entitled if the Retailer cancels its Order and without prejudice to any other claims against the Retailer:
a) to charge all its costs as a result of the cancellation;
b) to charge the Retailer a cancellation fee of 25% of the invoice value of the Products ordered by the Retailer (but not delivered by Purple Frog).
8.3. Orders for Products manufactured or purchased in accordance with the Retailers specifications cannot be cancelled.
9. Ownership
9.1. The Products are sold and delivered under retention of title. As long as the Retailer has not paid the full purchase price (including taxes) and including all additional costs, the (judicial and economic) ownership of the Products will stay with Purple Frog until the (full) payment has been made by the Retailer.
9.2. The Products subject to retention of title may not be pledged to third parties nor transferred as security until the secured claims are paid in full. The Retailer shall notify Purple Frog promptly and in writing if and to the extent there are seizures by third parties of goods that belong to Purple Frog.
10. Resale
10.1. In the event of resale, the Retailer is obliged to provide its buyers with the specific manual of the Products, as included in the packaging, and/or with the installation movie, as available on the Website, and inform its buyer about the manual and/or installation movie.
10.2. In the event of resale, the Retailer is obliged to impose the obligation to its buyers to use the Products according to the manual which is included by the Product.
10.3. In event of resale, the Retailer is obliged to inform its customers about the warranty policy of Purple Frog, as mentioned in article 11 of these Terms and Conditions.
10.4. Any breach of the aforesaid provisions will result in the Retailer being liable to pay Purple Frog an immediate fine of EUR 10,000.-, together with further payment of EUR 1,000.- for each day or violation after the first breach, without prejudice to any rights to claim compensation or to request for fulfillment.
11. Liability & Warranty
11.1. The liability of Purple Frog for claims of the Retailer will be limited to the amount paid by the insurance policy of Purple Frog in respect of the relevant case and can never exceed the invoice amount of the delivered product. The liability is limited to, at the choice of Purple Frog, send a credit nota for the Product(s) or replace or restore the Product(s), to be executed either on the spot or at the factory.
11.2. Losses due to delays, consequential damage, loss of profit and loss of income are never eligible for reimbursement.
11.3. Purple Frog issues a manufacturer’s warranty at the Products to the Retailer of 1 (one) year. If customers of the Retailer submit a claim at the Retailer concerning defects in Products, the Retailer has to inform Purple Frog in written within two (2) calendar days after receiving the claim of the customer, failing which the warranty will expire.
11.4. If the Retailer has a claim concerning defects in Products, the Retailer has to inform Purple Frog in written within two (2) calendar days after the defect has or should has been discovered, failing which the warranty of article 11.3 will expire.
11.5. Purple Frog is only obliged to deal with a claim of the Retailer (or its customers) if the claim is reported in time (ex article 11.3 and 11.4) and if the defect is not a result of incompetent or careless use (misuse) of the Product, tear and wear of the Products, weather conditions and/or water damage, use in commercial activities or use which is not in line with the manual of the Product. See article 11.10 of these Terms and Conditions.
11.6. If the claim of the Retailer is filed in time and justified -at the judgement of Purple Frog- Purple Frog will, at her choice, send a credit nota for the Product(s) or replace or restore the Product(s). Purple Frog is never obliged to recover costs or damages. In case of repair of defective Products under the warranty, the Retailer is obliged to return the Products at his/hers own risk and account to Purple Frog.
11.7. Warranty claims by the Retailer shall be excluded for material defects which do not or only insignificantly impair the value and suitability of the Products for the normal use of the Products.
11.8. Purple Frog is never liable for claims (costs/damages) of the customers of the Retailer. The Retailer indemnifies Purple Frog for all claims of customers concerning costs and or damages as a result of using the Products.
11.9. The Retailer has taken out proper insurance and will remain properly insured for statutory and professional liability and will permit Purple Frog to inspect the policy or policies concerned, should Purple Frog demand so.
11.10. Complaints can never be made valid in any case if there is:
• Incorrect, careless or an incompetent way of installing / hanging;
• Wear or breakage due to exceeding the maximum weight or through
incorrect or robust use;
• Discoloration and wear due to outdoor use. Weather influences have a negative effect also on outdoor products;
• Water damage (the products are not 100% waterproof);
• Wrong maintenance or cleaning;
• Damage by repair not performed by Purple frog;
• When used for purposes other than those intended;
• External causes, such as fire and / or water damage;
• With minor differences in color, quality, hardness, thickness and such.
12. Recall
12.1 In case Purple Frog decides to recall Products (e.g. because of quality defects or as precautionary measures), Purple Frog has the right to refuse delivery of the affected Products, even if Purple Frog had already accepted the Retailer’s order for these Products. Any payment the Retailer may have made already for the purchase price shall be reimbursed.
12.2 The Retailer shall cooperate with Purple Frog regarding a product recall. In particular if requested by Purple Frog, the Retailer shall be obligated to remove the affected recalled Products from its store and website, to inform end customers and to return all Products of the recalled type in his possession to Purple Frog.
12.3 For the sake of clarification, it shall be noted that the Retailer is obligated to indicate defects promptly. Purple Frog shall have the sole right to decide on a product recall.
13. Complaints
13.1. The Retailer inspects the Products (in packaging) to be in accordance with the Agreement upon delivery. Visible damage or defects need to be reported to Purple Frog within two (2) Days after delivery at the address of the Retailer by sending an e-mail to: info@purplefrog.nl, in the absence of which will proof the Products were delivered according to the Agreement. If the Retailer opens or removes the packaging of the Products, its right to complaint about damages will lapse and Purple Frog will not be liable for costs or damages as a result of defects of the Products.
13.2. The complaint needs to give a full and clear description of the complaint, included detailed pictures of the defect Product(s).
13.3. Every right to claim of the Retailer will lapse if the term in article 13.1 is not met. If the Retailer does not cooperate with Purple Frog to determine the validity of the complaint, the right to claim will lapse and Purple Frog will not be liable for costs or damages as a result of defects of the Products.
13.4. Purple Frog tries to answer the submitted complaints within a period of fourteen (14) Days from the day of receipt of the complaint. If the complaint is not answered within the aforementioned period, Purple Frog will give an indication about when the Retailer can expect an answer.
13.5. The Retailer allows Purple Frog a term of at least four (4) weeks to resolve the complaint. After this term has passed, the complaint creates a dispute which is subject to the dispute resolution in article 16.
14. Force Majeure
14.1. In these Terms and Conditions, force majeure includes, but is not limited to, the following situations:
a) war or threat of war;
b) riot;
c) discontinuation of operations, strike or cessation;
d) act of terrorism;
e) demonstration;
f) lack of personnel;
g) transport malfunction;
h) breach of contract by suppliers of Purple Frog;
i) epidemics;
j) obstruction by law of international, national or regional (government) authorities;
k) fire, explosions, frost, snow, flood, storm damage, and other damage caused by natural disasters.
14.2. If Purple Frog can’t comply to the Agreement caused by force majeure, Purple Frog has the right to fulfill its obligations at a later time, or to consider the Agreement as terminated. In these cases Purple Frog has the right to terminate the Agreement after two (2) weeks has passed without any obligation for compensation or to change the Agreement according to the circumstances.
15. Termination
Purple Frog is entitled to terminate the Agreement immediately, without being liable for possible costs or damages, if the Retailer is in default in respect of Purple Frog, if and as soon as control of the Retailer changes – by means of a change of management, share transfer or otherwise – , as well as when the Retailer fully or partially ceases activity or disposes of the company in any way, is declared bankrupt, applies for a suspension of payment, the Debt Rescheduling Natural Persons Act (WSNP) has been declared applicable, an application for a guardianship order has been submitted, (part of) his property is seized, and when (part of) his assets are put under administration or the Retailer otherwise has lost the power to dispose of its assets or part thereof, and furthermore when the Retailer – if it is a general partnership or private limited company – is in liquidation or is dissolved.
16. Intellectual Property
16.1. The content on the website of Purple Frog, including without limitation, the text, software, scripts, graphics, photographs, sounds, video, articles and the trademarks, service marks and logo’s contain therein, and the trade- and brand name: ‘Purple Frog” are owned by Purple Frog, subject to intellectual property rights. This content and the trade- and brand names may not be used, copied, reproduced, distributed, transmitted, broadcasted, displayed, sold, licensed or otherwise exploited for any other purposes whatsoever without the prior written consent of Purple Frog.
16.2. All products of Purple Frog and the intellectual property rights that protect the work and designs of Purple Frog are owned by Purple Frog.
16.3. The Retailer shall do all that is reasonably necessary to ensure that the Retailer or other parties do not infringe the intellectual property rights of Purple Frog.
16.4. Any breach of the aforesaid provisions will result in the Retailer being liable to pay Purple Frog an immediate fine of EUR 10,000.-, together with further Payment of EUR 1,000.- for each day or violation after the first breach without prejudice to any rights to claim compensation or request for fulfillment.
17. Disputes and Applicable law
17.1. All the agreements between Purple Frog and the Retailer are subject to Dutch Law.
17.2. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
17.3. If Retailer has its registered office within the legal territory of the European Union, Retailer and Purple Frog explicitly agree to submit to the exclusive jurisdiction of the courts of Oost-Brabant, Location ‘s-Hertogenbosch in the Netherlands.
17.4. If the Retailer has its registered office in a country outside the legal territory of the European Union then, notwithstanding 17.3, all disputes relating to the agreement or any further agreements will be exclusively settled by arbitration in accordance with the “New York Arbitration Convention” and the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The place of arbitration shall be Rotterdam. The proceedings shall be conducted in the Dutch or English language.