Terms & Conditions
GENERAL TERMS AND CONDITIONS OF DELIVERY, TERMS OF PAYMENT AND RETURNS
Cosmetyx NV established and having its principal place of business in Deinze, Belgium.
1. All Cosmetyx NV offers and agreements regarding the sale of beauty products and accessories, the maintenance thereof and the organization of courses in the field of beauty products shall be governed by the present general terms and conditions.
2. Unless explicitly agreed upon otherwise in writing, the applicability of the general terms and conditions used by the other party shall be explicitly rejected.
3. Deviations from the present general terms and conditions shall only apply if and in so far as they have been explicitly agreed upon with Cosmetyx NV.
4. If Cosmetyx NV has agreed in writing to the applicability of deviating terms and conditions, the present general terms and conditions of Cosmetyx NV shall remain in force for the rest, even if such is not stipulated explicitly.
5. The other party cannot derive any rights for future agreements from deviations from the general terms and conditions potentially agreed upon.
6. Cosmetyx NV shall be entitled to amend the present general terms and conditions. 30 days prior to the date the new version of the present general terms and conditions comes into force, Cosmetyx NV shall post the new version on its website www.cosmetyx.com. After this period the new version of the present general terms and conditions shall apply to all new orders.
The offers made by Cosmetyx NV shall be free of obligation and shall not bind Cosmetyx NV to contract accordingly, unless explicitly indicated to the contrary in writing.
1. Unless explicitly agreed upon otherwise in writing, all prices given shall be exclusive of VAT and transportation costs.
2. All costs relating to the import of the products, including import duties, taxes and inspections by the authorities, shall be for the account of the other party.
3. Cosmetyx NV shall reserve at all times the right to change prices, the contents of packaging and colors as well as the right to take products off the market.
4. In the event the price of one or more cost factors increases, Cosmetyx NV shall be entitled to increase the order price accordingly. All this subject to the statutory provisions possibly governing the matter, on the understanding, however, that future price increases already known the moment the agreement comes into being, shall be made known.
4. Delivery and Transport
1. A delivery date agreed upon, the term within the work has to be done respectively, shall always apply approximately and shall not be deemed a term to be observed on penalty of forfeiture of rights, unless explicitly agreed upon otherwise in writing.
2. The goods shall be delivered to DEINZE, Belgium, at the address Industriezone 5, De Tonne 49. Shipment EX Works from Deinze. At the request of the other party, the products shall be shipped to it. Distributors shall at all times pay the shipping costs for parcels. The goods shall be shipped for the risk of the other party.
3. If the capacity of Cosmetyx NV is not sufficient to cope with all orders at any point in time, Cosmetyx NV shall be authorized to determine itself which orders shall be executed and in which sequence, without the other party being entitled to derive any right to claim damages pursuant to said decision.
4. Out of stock products shall not be shipped afterwards automatically, but shall have to be ordered again.
5. Regular orders shall have to be placed 60 hours in advance. It shall not be possible to add supplements to the order once it has been processed. Additions shall then be processed as a new order with a new order number.
6. Orders shall have to be placed in writing exclusively, on the stationery with the letterhead of the other party or via internet.
1. Cosmetyx NV shall guarantee the other party that all its products shall be free of material defect and manufacturing faults.
2. Electrical appliances delivered by Cosmetyx NV which malfunction within six months following delivery, can be submitted to Cosmetyx NV for repair provided the complaints are filed in writing, the customer has paid the return shipping costs and that the purchase note / invoice is submitted. Cosmetyx NV shall reserve the right to determine whether the faulty appliance is covered by the guarantee or not. If the repair is covered by the guarantee, Cosmetyx NV shall bear the return and repair costs.
1. The other party shall have to report potential defects of the products delivered or errors in billing or shipping the products in writing to Cosmetyx NV within eight days from the day of receipt of the products, the invoice respectively. The purchase note or invoice shall have to accompany the complaint. The other party shall be deemed to test (have) the goods delivered and/or made available (tested) and to verify whether they meet the requirements imposed on them by virtue of the agreement, within eight days from the day of receipt.
2. Upon expiry of the above-mentioned terms, the other party shall be deemed to have approved the goods delivered and/or the work done. Complaints shall then no longer be accepted by Cosmetyx NV.
3. If replacement of the products within a reasonable term is not reasonable, the other party shall have the following rights:
a) a discount on the price proportionally to the decrease in value of the products as a result of defects or
b) repayment of the overall purchase price if the defect persistently and fundamentally impedes the appropriate use of the products or, secondly, another solution if Cosmetyx NV prefers it to another solution at its discretion. In case the overall purchase price of the faulty products is refunded, the other party shall return the products to Cosmetyx NV at Cosmetyx NV’s request before they will be refunded.
4. Filing a complaint shall not relieve the other party from its obligation vis à vis Cosmetyx NV pursuant to the agreement with the Cosmetyx NV.
5. A claim pursuant to a hidden defect shall no longer be allowed if it is filed when more than one year has expired since delivery.
6. Subject to the above limited guarantees the other party cannot claim any other guarantees, implicitly or explicitly, by virtue of any rights whatsoever.
7. Return Shipments
1. Products delivered and accepted shall not be taken back by Cosmetyx NV unless agreed upon otherwise, in which case a restocking fee of 20% shall be charged at all times.
2. The costs of the return shipments shall be for the risk and the account of buyer. If goods are wholly or partially used, they shall be deemed to have been approved.
1. Unless explicitly agreed upon otherwise, the goods shall only be delivered against payment on delivery. The latter shall be understood as payment with a credit card or a pin code.
2. Cosmetyx NV shall be entitled to claim part or the whole of the invoice amount by way of advance payment, as well as to invoice in parts to be agreed upon, or to demand sufficient security in any other way for the fulfillment of the obligation to pay by the other party. If the other party does not meet this requirement, Cosmetyx NV shall have the right to dissolve the agreement by means of a written statement and the other party shall have to compensate Cosmetyx NV for the damage sustained by the latter as a result thereof.
3. In case of overdue payment of any amount owed by the other party, or if the other party refuses a cash on delivery parcel or does not pick it up in time, Cosmetyx NV shall be entitled to demand payment in cash prior to delivery with respect to the next deliveries and/or activities, all this without prejudice to its rights notably pursuant to articles 10 and 15 of the present general terms and conditions.
4. Each payment made by the other party shall primarily serve to cover the interest owed by it as well as the collection costs and/or administration costs incurred by Cosmetyx NV and shall then be deducted from the longest outstanding claim, even if the other party mentions that the payment serves to cover another claim.
5. If the other party fails to pay an invoice within the applicable term, Cosmetyx NV shall be entitled to suspend the subsequent deliveries, whether they result from the same contract of sale or not, until the entire amount is paid in full and credited to the account number of Cosmetyx NV.
6. The other party shall owe an interest compensation of 3% of the outstanding amount and the statutory interest as soon as an invoice is not paid within the applicable term.
1. All potential costs, including collection costs, bailiff’s costs and legal fees, incurred both in and out of court by Cosmetyx NV in order to bring about fulfillment of its obligations by the other party, shall be for the account of the other party.
2. The extra judicial costs shall amount to a minimum of 15% of the principal claimed, with a minimum of €150.00. If Cosmetyx NV does not claim more than 15% of the principal claimed as extra judicial costs, it shall not have to furnish proof of the level of the costs.
3. The compensation for the extra judicial costs shall be owed as from the moment the claim is placed in the hands of the Cosmetyx NV lawyer or bailiff, irrespective of the fact whether the other party is aware of it or not.
10. Retention of Title
1. All products shall remain the property of Cosmetyx NV , the actual delivery not-withstanding, until all (future) amounts owed by the other party to Cosmetyx NV pursuant to any agreement, shall be paid in full. Rights shall only be vested in the other party or, the case ensuing, assigned to it, on condition that the other party pay the amounts agreed upon in full and in time.
2. The other party shall not be entitled to rent the products out or to allow them to be used, to pledge or encumber them in any other way until the ownership of the products has transferred to the other party. The other party shall only be entitled to sell or deliver the goods being the property of Cosmetyx NV to a third party, to the extent such is imperative within the context of the other party’s normal business activities.
3. If and as long as Cosmetyx NV is the owner of a product, the other party shall forthwith notify Cosmetyx NV when the products are (threaten to be) confiscated or if (any component of) the products is claimed in any other way. The other party shall in addition announce to Cosmetyx NV at the latter’s first request where the products are stored.
4. In the event of attachment, suspension of payment, statement of applicability of the “Wet op de Continuïteit van Ondernemingen (WCO)” and /or “Wet betreffende de collectieve schuldenregeling en de mogelijkheid tot verkoop uit de hand van de in beslag genomen onroerende goederen” or bankruptcy of the other party, the other party shall immediately draw the attention of the bailiff attaching the goods, the administrator or the trustee in bankruptcy to the (ownership) rights of Cosmetyx NV. The other party shall guarantee that the attachment of the goods will be lifted immediately.
5. Cosmetyx NV shall be irrevocably authorized by the other party to enter any location where the good concerned or the result of the provision of services is to be found and to take it back or have it taken back, no matter where they are situated and to do all and everything else that may further the exercise of the retention of title, all this without any judicial intervention being required.
1. The other party shall not be allowed to organize training courses in the products and systems marketed by Cosmetyx NV and/or to sell those products and systems without prior authorization in writing of Cosmetyx NV.
1. Cosmetyx NV shall accept no liability for potential allergic reactions and/or allergies that may arise when using the Cosmetyx NV products. The use of and/or working with the Cosmetyx NV products has to be stopped immediately in the event of itching, the skin turning red or the appearance of follicles. Cosmetyx NV advises users of its products to contact their GP in case of asthma or pregnancy.
2. Cosmetyx NV shall not be liable for damage to the products other than under observance of the guarantees given.
3. Neither on the basis of the law, nor on the basis of the present agreement, Cosmetyx NV shall be liable for so-called consequential damage the other party or a third party should sustain due to the products or their use. This shall include the loss of profits, trading loss, loss of data and immaterial damage.
4. Without prejudice to the stipulations of sections 2 and 3 of the present article, the contractual and legal liability of Cosmetyx NV shall at all items be limited to the amount the other party was billed for and/or the amount to be invoiced for the product or the provision of services in respect of which the liability came into being.
5. Cosmetyx NV can never be held liable for damage arising due to the willful intent and/or (gross) negligence on the part of independent auxiliary individuals called in by it, or on the part of employees not charged with the management of the Cosmetyx NV.
13. Force Majeure and Dissolution
1. Force majeure on the part of Cosmetyx NV shall be understood to be in the present general terms and conditions: war, threat of war, natural disasters, excessive temporary increase of demand, riots, transportation obstructions, government measures, weather conditions, non-delivery, overdue delivery or incomplete delivery to Cosmetyx NV of goods or services ordered by Cosmetyx NV from third parties, strikes, plant occupations, work-to-rule, break-downs at the Cosmetyx NV company, nuclear reactions, war risk as well as any other circumstance – irrespective of the fact whether or not is was foreseeable when the agreement came into being - beyond the control of Cosmetyx NV which temporarily or permanently obstructs the performance of the contract or renders it significantly more complicated or costly.
2. Should Cosmetyx NV not be capable to fulfill its obligations due to force majeure circumstances, it shall be entitled to postpone the delivery of the goods and/or the execution of the work until the force majeure situation ends, all this without the possibility of being declared to be in default.
3. In the event of force majeure, Cosmetyx NV shall have the right to dissolve the agreement without being held to compensate the other party for the damage sustained by the latter as a result of said dissolution.
4. Should a situation of force majeure last for more than one month, the other party shall be entitled to dissolve the part of the agreement relating to the delivery of the goods and/or the execution of the work that cannot be delivered and/or executed due to the force majeure.
5. If Cosmetyx NV has negotiated that certain goods that will be delivered originate from manufacturers or suppliers mentioned by name, the guarantee conditions used by the manufacturer or supplier concerned shall apply. Cosmetyx NV shall not give any guarantee on its own account in addition to said(factory) guarantees. Cosmetyx NV can furthermore not be held liable with respect to the fulfillment by aforementioned manufacturer or supplier of his guarantee obligations.
6. Cosmetyx NV shall be under no obligation to replace products when they are subject to incorrect, abnormal or non-justified use, handling, processing or storage.
7. Cosmetyx NV shall give no guarantees regarding the use or the improper use of the products, the sale ability or availability for certain purposes other than professional beauty services.
14. Indemnification and Set-off
1. Should Cosmetyx NV be held liable anyway by third parties for any damage for which it is not liable pursuant to the present general terms and conditions and for which the other party is liable, the other party shall be under the obligation to fully indemnify Cosmetyx NV and to compensate it for anything Cosmetyx NV will have to pay to third parties pursuant to their claims and this on the basis of an out-of-court settlement agreed upon with the consent of the other party and/or on the basis of an irrevocable judicial or similar ruling.
2. Counter claims potentially lodged by the other party which are disputed by Cosmetyx NV cannot be settled via set-off with and/or deduction from the invoice amount, but shall have to be claimed separately.
15. Dissolution by Cosmetyx NV
1. If the other party:
A. is declared bankrupt, assigns an estate, files an application for suspension of payments and or debt rescheduling, or if (a part of) its assets are attached,
B. dies or is put under administration or under guardianship,
C. fails to comply with any of its obligations resulting from the law, the agreement or the present general terms and conditions,
D. proceeds to cease the business operations or to transfer its business or an important part of it, including contributing its business in acompany already existing or still to be formed, or if it proceeds to change the object of its business, Cosmetyx NV shall have the right by the mere fact that the above events took place, to dissolve the agreement in writing, without prejudice to its right to compensation of the goods already delivered and/or the work already done, as well as without prejudice to its right to compensation of interest, costs and damage.
16. Intellectual Property Rights
1. The other party shall be prohibited to copy or otherwise duplicate(parts) of manuals, brochures, folders or newsletters without prior consent in writing of Cosmetyx NV. It shall furthermore be prohibited to duplicate product names and names used in the product lines of Cosmetyx NV.
2. The other party shall not mix up or combine logos and/or images of various brands, but shall at all times show the logo of the brand of the product.
17. Applicable Law and Disputes
1. Belgium law exclusively with the exclusion of the Vienna Sales Convention shall apply to all agreements in respect of which the applicability of the present general terms and conditions has been agreed upon and all legal relationships resulting there from.
2. All disputes arising further to the agreement(s) shall be settled by the District Court in Gent exclusively, on the understanding that Cosmetyx NV shall reserve the right to turn to the competent Court under the law. If Cosmetyx NV invokes the present clause in writing, it shall give the other party the opportunity for one month to inform Cosmetyx NV in writing that it opts for the competent Court under the law, which choice shall then be respected by Cosmetyx NV.