Terms of service

1. Applicability of These Terms

1.1 These terms apply to all offers made by Everly and to all agreements to be entered into between Everly, with its office in Rotterdam (the “Seller”), and a counterparty (the “Buyer”), relating to the delivery of products (“Products”) and services (“Services”) by the Seller, as well as to the legal acts underlying that agreement. Everly is the trade name.

1.2 Additional or deviating terms are only valid if and insofar as expressly agreed in writing.

2. Formation of the Agreement

2.1 Oral offers and promises only bind the Seller after and insofar as the Seller has confirmed them in writing. All offers made by the Seller are without obligation, in whatever form, unless expressly stated otherwise in writing. If the Buyer has provided the Seller electronically with a statement containing an offer or acceptance, the agreement is deemed to have been concluded if the Seller either confirms that statement electronically, or has started delivering the Products and/or Services.

2.2 Orders placed orally must, if required by the Seller, be confirmed in writing by the Buyer.

2.3 Sending offers and/or documentation by the Seller does not oblige the Seller to accept an order.

2.4 The Seller and Buyer expressly agree that the use of electronic means of communication can create a valid agreement once the conditions have been met. In particular, the absence of a handwritten signature does not affect the binding nature of the offer and its acceptance. The Seller’s electronic records serve, insofar as permitted by law, as presumptive evidence.

3. Prices

3.1 Prices are based on the type and scope of the Products and/or Services to be delivered, as stated online and in quotations. Prices are net, Ex Works (Incoterms 2000) and exclude VAT. Prices listed exclude printing, unless stated otherwise for the product.

3.2 The Seller has the right to change the agreed prices prior to delivery in the event of increases in cost factors such as exchange rate fluctuations, raw materials, labor costs, or government measures, if such increases or measures occur after the agreement is formed but before delivery.

3.3 All prices are net unless expressly stated otherwise in writing.

4. Delivery

4.1 Unless expressly agreed otherwise in writing, delivery will take place Ex Works (Incoterms 2000) at the Seller. Notwithstanding Article 3, for deliveries of small quantities of Products, a surcharge will be added to the prices; such deliveries and surcharges are further described in the quotations.

4.2 The Buyer is obliged to take delivery of the Products at the time they are delivered to them and, where it has been agreed that the Seller will also perform Services, to provide the Seller with all necessary opportunities and cooperation.

4.3 If the Buyer refuses delivery or is negligent in providing information or instructions, or otherwise fails to provide the cooperation necessary for delivery of Products and/or Services, the Seller is entitled, at the Buyer’s expense and risk, to take all measures deemed appropriate (such as storage with third parties), without prejudice to the Seller’s right to claim the purchase price or agreed compensation, or to deliver to a third party. Additional costs and any damages incurred by the Seller in this case may be recovered from the Buyer. If the Seller delivers Products to a third party in this case, the Seller is entitled to recover from the Buyer any shortfall in proceeds.

4.4 Delivery times or other deadlines stated by the Seller are never to be regarded as strict deadlines unless expressly agreed otherwise in writing. In the event of late delivery of Products and/or late performance of Services (whether or not previously communicated to the Buyer), the Seller must be put in default and given a reasonable period (as determined by the Seller) to still fulfill its obligations. Only if this extended period is exceeded is the Buyer entitled to dissolve the agreement, provided no Products have yet been delivered or Services performed. The Seller is never liable for consequential damages, including but not limited to loss of profit and business losses, as a result of delays.

4.5 The Seller is permitted to execute placed orders in parts. If orders are executed in parts, the Seller is entitled to invoice each part separately.

4.6 The Seller is entitled to charge the costs of any packaging separately. Packaging is not taken back. If the Seller is nevertheless obliged to take packaging back pursuant to laws or regulations, the costs associated with the take-back or processing of such packaging are at the Buyer’s expense. For orders of electronic devices, recycling contributions will be charged where applicable.

5. Printed Products

5.1 If the Seller receives orders for products to be printed for the Buyer (“Printed Products”), the Buyer must supply directly reproducible material of, in the Seller’s reasonable judgment, good quality.

5.2 The color of Printed Products may differ in reality from the photo on the website. We cannot guarantee colors. You can order a sample at any time to assess quality or exact colors.

5.3 The Seller is only obliged to provide a print proof of Printed Products (“Print Proof”) prior to production if and insofar as this has been expressly agreed in writing before or when concluding the agreement. In such cases, the Seller will send the Buyer a Print Proof for approval. The Buyer must communicate approval or rejection to the Seller within 24 hours of receiving the Print Proof.

5.4 Minor deviations of the Printed Products from the Print Proof, including but not limited to color shades, logo and/or dimensions, will not qualify as a shortcoming on the Seller’s part.

5.5 A Print Proof is deemed approved by the Buyer if the Buyer does not communicate its rejection within 5 business days of receiving the Print Proof.

5.6 All costs related to work performed by the Seller for Printed Products will be invoiced separately to the Buyer, unless expressly agreed otherwise in writing.

5.7 The Seller is entitled to deliver and invoice 5% more or less than the number of Printed Products stated by the Buyer in the order.

6. Textile Products

6.1 If the Seller receives orders for textile products for which the Buyer determines, among other things, color, type and size (“Textile Products”), the Buyer may order a sample (“Sample”). Ordering a Sample must be expressly agreed in writing between Buyer and Seller before or at the time of concluding the agreement. The Buyer must communicate approval or rejection to the Seller within 24 hours of receiving the Sample.

6.2 Minor deviations of the Textile Products from the Sample, including but not limited to color, size and/or logos, will not qualify as a shortcoming on the Seller’s part.

6.3 A Sample is deemed approved by the Buyer if the Buyer does not communicate its rejection within 5 business days of receiving the Sample.

6.4 Notwithstanding Article 11, where a Sample has been ordered and approved in accordance with Articles 6.2 and 6.3, any possible claims alleging that the products delivered to the Buyer do not conform to the agreement will lapse.

6.5 All costs related to work performed by the Seller for Textile Products will be invoiced separately to the Buyer, unless expressly agreed otherwise in writing.

6.6 The Seller is entitled to deliver and invoice 5% more or less than the number of Textile Products stated by the Buyer in the order.

7. Payment

7.1 Payment must be made no later than 8 days after the invoice date, provided a credit limit has been obtained via the credit insurer, unless the Seller and Buyer expressly agree otherwise in writing. The Buyer is not entitled to deduction, suspension or set-off.

7.2 Without prejudice to the Seller’s rights under law or the agreement, if the Buyer fails to pay any amount due within 8 days after the invoice date, the Buyer will be in default and all claims of the Seller become immediately due and payable in full. The Seller is then also entitled to statutory interest (as applicable to commercial agreements), increased by two percent, on the outstanding amount until full payment.

7.3 If the Buyer does not submit a substantiated written objection to the invoice amount within 7 days of the invoice date, the Buyer is deemed to have approved the amount.

7.4 In the event of late payment by the Buyer, all reasonable costs of collection out of court are for the Buyer’s account, including in any case the costs of collection agencies, bailiffs and lawyers, amounting to at least 15% of the total amount due with a minimum of €500 (excluding VAT). This does not affect the Seller’s other rights under law or these terms.

7.5 The Buyer must reimburse all costs incurred by the Seller related to legal proceedings in which the Buyer is found wholly or largely in the wrong. These costs include, in any case, the costs of external experts, bailiffs and lawyers, even insofar as they exceed the amount awarded by the court.

8. Conformity

8.1 Delivered Products may deviate by 5% in weight, size, quantity, color, concentration, composition, type, or specific gravity from what has been agreed.

8.2 Samples and models are provided for indication only. The Buyer cannot derive any rights from images of Products in catalogues/internet/quotations and/or other advertising or promotional material of the Seller, or from general promotions made by the Seller.

9. Permits, etc.

9.1 The Buyer is responsible for ensuring that all permits, concessions, licenses, permissions and the like that may be required for the Seller to deliver the products and otherwise fulfill its obligations are obtained in time and in the correct form.

9.2 The costs associated with obtaining such permits, concessions, licenses, permissions and the like are for the Buyer’s account.

10. Retention of Title

10.1 The Seller retains ownership of Products delivered and to be delivered to the Buyer until full payment has been received for all purchase prices, as well as any amounts owed by the Buyer in relation to Services performed, and any claims due to the Buyer’s attributable failure to perform its obligations.

10.2 As long as ownership of the delivered Products has not passed to the Buyer, the Buyer may not pledge the Products or grant any third party any right thereto.

10.3 The Buyer must store Products delivered under retention of title carefully and as identifiable property of the Seller. The Buyer must also insure these Products against fire and water damage and theft. Any claims the Buyer may have under these insurances will, upon the Seller’s first request, be pledged by the Buyer to the Seller as additional security for the Seller’s claims against the Buyer.

10.4 If the Buyer fails to perform any obligation towards the Seller, or gives the Seller good reason to fear that it will fail to perform those obligations, the Seller is entitled to take back Products delivered under retention of title, without prejudice to its right to further compensation. The Buyer must provide all cooperation required. All costs related to the take-back are for the Buyer’s account. If the Buyer, after the take-back, still fulfills all its obligations towards the Seller, all costs related to returning the taken-back Products are for the Buyer’s account.

11. Complaints

11.1 The Buyer must inspect the Products upon delivery for shortages and visible defects and, if defects or shortages are found, report them to the Seller immediately after delivery in writing with reasons. Non-visible defects must be reported by the Buyer within 2 days after discovery and in any event within 2 days after the Buyer reasonably should have discovered them.

11.2 After submitting the complaint, the Buyer must provide the Seller with all cooperation needed to investigate whether the complaint is justified. If the complaint is unfounded, the investigation costs are for the Buyer’s account.

11.3 If the Seller has been able to establish that there is a defect or shortage and has been notified in time by the Buyer, then the Seller is, at its discretion, only obliged to replace the defective Products, deliver the missing Products, or credit or (partially) refund the amount charged in respect of the defective item. If the Seller chooses to refund (part of) the purchase price, the defective Products (the entire order) must first be returned by the Buyer to the Seller.

11.4 The Buyer may not assert any claim against the Seller if, after delivery, the Products have been wholly or partly consumed, processed, incorporated, or mixed with other Products, excluding installation by or on behalf of the Seller.

11.5 Any claim for payment of a sum of money and/or replacement of the item, on whatever basis, as well as any right to dissolve the agreement, expires at the earliest of: (a) failure to report in time in accordance with Article 11.1; or (b) 24 months after delivery. For Products with a value of less than €700, Products without an electronic component, or Products that cannot be considered electronic Products, the period under (b) is 6 months.

12. Force Majeure

12.1 If the Seller is not attributable for failing to perform its obligations (force majeure), it is not liable. Insofar as performance is not permanently impossible, its obligations are suspended. If the period during which performance is not possible due to force majeure lasts or is expected to last longer than 3 months, the Seller is entitled to dissolve the agreement without any obligation to pay compensation.

12.2 If, at the time force majeure occurs on the Seller’s side and/or the Buyer’s side, the Seller has already partially fulfilled its obligations, or can only partially fulfill them, it is entitled to invoice the part already performed or performable separately, and the Buyer must pay that invoice as if it were a separate agreement.

12.3 Force majeure on the Seller’s part includes, but is not limited to, all circumstances as a result of which compliance with the agreement can no longer reasonably be required of the Seller, including transport difficulties, total or partial default by the Seller’s (sub)suppliers, total or partial default by third parties engaged by the Seller for performance of the agreement, restrictive government measures (including the failure to obtain a required permit) of any kind, disruptions or interruptions in the supply or availability of energy, disruptions or interruptions in or of the functioning of any public utility, disruptions, interruptions or termination of supply of raw materials, semi-finished products or finished products, any circumstance, cause or event resulting from or related to the so-called millennium problem, and any circumstance that the Seller could not reasonably have foreseen and over which the Seller has no control.

13. Liability

13.1 The Seller’s liability due to attributable failure is limited to what is stated in Article 11.3.

13.2 The Seller is not liable for consequential damages, including but not limited to business losses, damage due to business interruption and/or loss of profit of the Buyer.

13.3 The Buyer fully indemnifies the Seller against all claims related to Products or Services delivered to the Buyer, which third parties may assert against the Seller on whatever basis.

13.4 The above limitation of liability does not apply where damage results from intent or deliberate recklessness by or attributable to the Seller or to its management-level subordinates.

14. Performance of Services

14.1 If the Seller must perform Services in connection with the agreement, it will exercise the care of a good contractor. The Seller never guarantees the result of the Services to be performed.

14.2 In the case of a justified complaint submitted in time regarding performed or to-be-performed Services, the Seller is, at its discretion, only obliged to remedy the defect, perform the Service again, or credit or refund the amount charged for the Service in whole or in part (at its reasonable discretion).

14.3 All claims relating to performed Services lapse at the latest 5 business days after the relevant Services were performed or should have been performed, or earlier if required by law.

14.4 Article 13 applies correspondingly to any liability relating to Services to be performed by the Seller or in connection with Services already performed by it. The reference in Article 13.1 to Article 11.3 must in this context be read as a reference to Article 14.2.

15. Intellectual Property Rights

15.1 Intellectual property and copyrights in all software, drawings, specifications, know-how and other information (in the broadest sense of the word) provided by or on behalf of the Seller are vested in the Seller. The Buyer is not permitted to copy such software, drawings, specifications, know-how or other information without the Seller’s written consent. The Buyer must treat all information and know-how received from the Seller strictly confidentially and may not disclose such information or know-how to third parties without the Seller’s prior written consent. The Buyer is also not permitted to use such information and know-how for purposes other than those expressly provided for in writing under an agreement to which these terms apply.

15.2 The Buyer is not permitted to copy drawings, software, stereotypes, molds, tools, etc. (even if made in collaboration with or at the expense of the Buyer) and items made with them, without the Seller’s prior written consent, nor to use them in any way other than expressly provided for in writing in an agreement to which these terms apply. Molds, tools, etc. remain the property of the Seller, even if produced at the Buyer’s request and/or the production costs have been charged to the Buyer. If, in performing an agreement to which these terms apply, intellectual property rights arise and/or can come into existence, these rights belong to the Seller and will, where necessary, be transferred by the Buyer to the Seller.

15.3 The Buyer indemnifies the Seller against all third-party claims arising from infringements of an intellectual property right relating to the manufacture, delivery or use of a Product or Service, made or performed according to the Buyer’s specifications. This indemnity also applies where the Seller, on the Buyer’s instruction, must make changes to an existing item or work.

16. Waiver of Rights by the Seller

16.1 Any waiver by the Seller of one or more rights relating to a breach of a provision of these terms does not constitute a waiver of one or more rights relating to a breach of other provisions, nor relating to a subsequent breach of that same provision.

17. The Offer

17.1 If an offer has a limited period of validity or is subject to conditions, this will be expressly stated in the offer.

17.2 The offer contains a complete and accurate description of the products, digital content and/or services offered. The description is sufficiently detailed to allow the consumer to properly assess the offer. If the entrepreneur uses images, these are a true representation of the products, services and/or digital content offered. Obvious mistakes or obvious errors in the offer do not bind the entrepreneur.

17.3 Each offer contains such information that it is clear to the consumer what rights and obligations are attached to accepting the offer.