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General Terms and Conditions.
SunSmiles is a trade name of Beach Brands B.V.
Beach Brands is a partner of MINC Mijdrecht a E-Fulfilment company bases on the Rendementsweg 6, 3641SK Mijdrecht in The Netherlands. Registered by the chamber of commerce under number 30118177, VAT number NL8025.969.27.B01
Article 1. Definitions.
1. In these general terms and conditions, ‘client’ is understood to mean: a natural or legal person that may act on behalf of a company or profession.
2. Other clients are: private individuals, associations, comprehensive schools, foundations, (government) institutions, etc. with a representative.
3. Client is also understood to mean hirer, customer or buyer.
Article 2. Application of these terms and conditions.
1. These terms and conditions apply to each offer and each agreement between SunSmiles and a client.
2. These terms and conditions also apply to all agreements with SunSmiles, for the performance of which third parties have to be involved.
3. We are not bound by verbal promises or arrangements, not even by those that could be connected to these general terms and conditions, until after and insofar these have been confirmed in writing by SunSmiles.
Article 3. Quotations and realisation of the agreement.
1. All offers and/or quotations made by SunSmiles , both verbal and written, are free from obligations. They are valid for a period of 14 days, unless specified otherwise.
2. SunSmiles is only bound by the quotations if the acceptance hereof has been confirmed in writing, by the other party, within 14 days.
3. The prices stated in said quotations are exclusive of legal VAT applicable at that time, unless specified otherwise.
4. Manual changes render quotations and agreements invalid.
5. SunSmiles and the client are bound firstly, after and insofar the client has converted SunSmiles offer made before into a final order in person or by telephone following an approved confirmation from SunSmiles .
6. If the price to be calculated by SunSmiles has not been determined in writing in advance, we will charge the price applicable on the day of delivery. All increases in prices, arising from levies or expenses imposed by the government, wage increases, rises in exchange rates or rises in prices of raw materials that come into effect following the realisation of the agreement, shall therefore be passed on to the client. In such cases the client has the right to cancel the agreement entered into, insofar it has not yet been executed, provided that he informs us in writing of his intentions to that end within ten days of taking cognisance of the relevant increase in prices.
7. Images, drawings, statements of dimension and weight and the like provided by us in our price lists, circulars, advertisements, letters and such, are only intended to draw a general picture of our supplies and we are therefore not bound by them. Deviations do not give the client the right to refuse the delivery or payment of the goods or to demand any compensation from us.
Article 4. Performance of the agreement and/or delivery.
1. The place of delivery shall be SunSmiles warehouse on Bonaire Dutch Caribbean, MINC in The Netherlands or the SunSmiles factory in Cancun Mexico, unless agreed on otherwise.
2. Deliveries shall be sent at the costs of the client. If the client does not give instructions about the way in which the goods are to be sent or does not do so in time, SunSmiles is free to decide which means of transport are to be used. All import, duties and handling costs will be for the account of the client.
3. Deliveries that are to be sent by the client’s request as well as returns shall never be sent free of charge.
4. SunSmiles retains the right to deliver the goods COD, if we deem this necessary. If the client refuses the delivery COD (Cash on Delivery), the client is obliged to reimburse all costs that are to be incurred by us.
5. SunSmiles retains the right to store goods that cannot be transported to their destination for reasons beyond our control, at the expense and risk of the client and to demand payment, as if the delivery took place, as well as payment of the storage costs.
6. All goods, even in case of rent or provision, even if these are delivered free of charge, are dispatched from SunSmiles’ warehouse at the client’s risk. Even in the case that the carrier is of the opinion that damage during transport is for the account of sender.
7. Delivery times only apply by approach. Excesses thereof do not give any right to cancel the order, to change the payment terms, or to demand compensation. In case of disturbances in the factory, strikes, lock-outs, failure of delivery of materials and parts that we have on order, or delivery thereof that does not occur in time, railway strikes or closed waterways, riots, fire and the like give SunSmiles the right to change the agreement in full or in part, whereby cancellation cannot be excluded.
8. At request, SunSmiles can carry out partial deliveries. In view of such deliveries, all stipulations of these general terms and conditions apply in full. This applies in particular to the period in which payment is to be made and complaints are to be filed.
9. SunSmiles shall further execute the agreement at the best of its abilities and according to the requirements of good craftsmanship and on the basis of the state of the art known at that time.
10. If and insofar a good execution of the agreement is required, SunSmiles has the right to have third parties carry out certain activities.
11. The client shall ensure that he provides all information, which SunSmiles indicates to be necessary or which the client is reasonably to be expected to understand that these are necessary for the execution of the agreement in a timely fashion. If the information necessary for the execution of the agreement has not been supplied to SunSmiles in time, SunSmiles has the right to postpone the execution of the agreement and/or pass the extra costs arising from the delay according to the usual rates on to the client.
12. SunSmiles is not liable for any damage of whatever nature, due to the fact that SunSmiles has assumed incorrect and/or incomplete information provided by the client, unless it had to be aware of such incorrectness or incompleteness.
13. If it has been agreed upon that the agreement shall be executed in stages, SunSmiles may postpone the execution of these parts that belong to the next stage, until the client has approved in writing the results of the preceding stages and has paid for them.
Article 5. Term of the contract; period of execution.
1. The agreement is entered into for an unlimited period of time, unless parties expressly agree otherwise in writing.
2. If a certain period has been agreed within the term of the agreement for the completion of certain activities, this can never be considered as a limit. If the period of execution is exceeded, the client has to declare SunSmiles to be in default in writing.
Article 6. Changing the agreement.
1. If during the execution of the agreement it appears that it is necessary for a due implementation to change or supplement the activities to be carried out, parties shall adjust the agreement accordingly in a timely fashion and in mutual consultation.
2. If parties agree that the agreement must be changed or supplemented, the time of completion of the implementation may be affected because of that. SunSmiles shall inform the client hereof as soon as possible.
3. If the change or supplementation to the agreement has financial and/or qualitative consequences, SunSmiles shall inform the client hereof.
4. In deviation from paragraph 3, SunSmiles shall not be able to charge additional charges if the change or supplementation is the result of circumstances that can be attributed to it.
Article 7. Confidentiality.
Both parties are obliged to observe confidentiality towards all confidential information acquired in the framework of their agreement from each other or from another source. Information is deemed confidential if this has been notified by the other party or if this arises from the nature of the information.
Article 8. Intellectual property.
1. Without prejudice to the provisions of Article 7 of these terms and conditions, SunSmiles retains the rights and authorities that accrue to it on the basis of the Copyright Act.
2. All documents provided by SunSmiles, such as quotations, drafts, reports, recommendations, designs, sketches, drawings, etc, are exclusively intended to be used by the client and are therefore not to be multiplied, made public or brought to the knowledge of third parties by him without the prior written approval of SunSmiles.
3. SunSmiles retains the right to use new relations and increased knowledge acquired through carrying out the activities for other purposes, insofar as no confidential information shall be brought to the knowledge of third parties.
4. When purchasing products from SunSmiles, the client declares not to copy them or have third parties imitate them. A minimal fine of $ 50.000,- plus the gross value of the sale of each copied product sold shall be imposed due to lost income. The fine of $ 50.000,- shall be made payable by SunSmiles if it can be demonstrated that materials have been copied. SunSmiles shall make an estimate of lost income, which can only be refuted by the client by a full administrative inspection. The client has 8 days following the discovery thereof to do so. If the client is not able to produce convincing administrative proof, the client immediately owes SunSmiles the amount for lost income as well.
Article 9. Cancellation.
1. SunSmiles retains the right to dissolve an agreement if there are any indications that that the client cannot or does not fulfil his financial obligations within the payment term agreed upon. If the agreement is dissolved because the client does not fulfil his obligations, SunSmiles shall retain the full right to the amounts due, maintaining the cancellation percentages of point 2.
2. The client may only cancel an agreement with SunSmiles if he pays 20% of the gross price agreed upon to SunSmiles. When cancelling within 30 days before commencement/delivery, 30% has to be paid. When cancelling within 14 days before commencement/delivery, 50% has to be paid. The price has to be paid in full if the order concerns a purchase of an article that has been manufactured especially for the client.
Article 10. Dissolving the agreement.
1. The claims of SunSmiles towards the client are immediately due in the following cases:
• If, after concluding the agreement, circumstances that have come to the notice of SunSmiles give good grounds to fear that the client is not going to fulfil his obligations
• If SunSmiles has asked the client when concluding the agreement to provide security for the performance and this security fails to appear or else is insufficient
• If, during the execution of the agreement, incidents occur because of which the activities cannot be continued at all or can hardly be continued
• If the client is declared in a state of bankruptcy, has applied for a moratorium of payment or else winds up his company in full or in part
• In case of attachment to and/or execution of (a part of) the client’s assets, including the products that we delivered, but that have not been paid (in full). In above-mentioned cases all claims that SunSmiles has on the account of the client, are immediately due
2. In said cases SunSmiles is authorised to suspend the further execution the agreement, or else to proceed to dissolve the agreement, all this without prejudice to the right of SunSmiles to claim compensation.
These cases referred to can never lead to non-payment of the agreement entered into with SunSmiles.
Article 11a. Deficiencies, terms for complaints and claims.
1. Complaints about the activities carried out have to be reported to SunSmiles by the client in writing within 5 days, or 8 days at the latest following the completion of the relevant activities.
2. If a complaint is valid, SunSmiles shall still carry out the activities as agreed, unless this has become evidently meaningless in the meantime for the client. The latter has to be notified to the client in writing.
3. If it is not possible or useful anymore to still provide the agreed service, SunSmiles shall only be liable within the limits of Article 15.
4. Claims to the goods delivered (sold) by us have to be submitted to us in writing within eight days after the delivery stating the invoice and the packing note number. In case of claims the client has to keep the relevant goods available for inspection.
5. The client cannot derive the right to suspend or refuse his payment from a claim.
6. If we deem the claim to be well-founded, we will replace, repair the relevant goods or compensate for them (according to Article 11b).
Article 11b. Returns.
1. Items can be returned within 14 day’s. Returns should be sent stamped and the relevant goods shall be despatched at sender’s risk.
2. The goods are to be returned undamaged, in its original packaging and unused with a copy of the invoice.
3. Following receipt of the products, the amount shall be reimbursed within 14 days to an account number specified by the client. SunSmiles has the right to deny damaged products or to proceed to a devaluation of the product and therefore reimburse a lower amount.
4. If the delivered goods are returned in accordance with these instructions, we retain the right to charge 10% administration costs when crediting the value of those goods. This only applies to wholesale orders.
Article 12. Fee for consulting and training.
1. If no fixed fee is agreed upon, the fee shall be determined on the basis of the hours actually spent. The fee shall be calculated in accordance to SunSmiles hourly rates applicable at that time for the period in which the activities are carried out, unless another hourly rate is agreed upon.
2. If SunSmiles agrees to a fixed fee with the client, SunSmiles is nevertheless authorised to raise this fee or rate. SunSmiles is allowed to pass on increases in prices if SunSmiles is able to demonstrate that significant price increases have occurred between the moment of the offer and the delivery, for example with regard to wages or travel expenses.
Article 13a. Payment.
1. Payment has to be made in advance of delivery and within 14 days following the invoice date in the manner as indicated by SunSmiles and in the currency on the invoice, unless agreed otherwise in writing.
2. After the period of 21 days following the invoice date, the client is in default; the client owes an interest of 1.5% per month on the amount due from the moment of entering into default, unless the legal interest is higher in which case the legal interest applies.
3. In case of winding-up, bankruptcy or moratorium of payment of the client the claims of SunSmiles and the obligations of the client towards SunSmiles shall be due immediately.
4. Payments made by the client are meant in the first place to settle all interests and costs due, and in the second place to pay all invoices due that are pending for the longest period of time, even if the client states that the payment relates to a subsequent invoice.
5. If the client does not fulfil its payment obligation according to the agreement, SunSmiles is authorised to cancel the delivery, on full payment of the amount due.
Article 13b. Ownership.
All products delivered by SunSmiles remain our property until the moment of full payment of all our claims vis-à-vis the client, including interests and costs – and in any case of deliveries in current account, up to the moment of settlement of the balance possibly charged to the client. Acceptance of a bill of exchange or any other trade paper, does not apply as a payment in connection hereto. The client is not authorised for said full payment or settlement to pledge the goods to third parties or to transfer ownership thereof. On violation of the provisions of this Article, the purchase price shall become payable in full and immediately, regardless of what the payment terms may be.
Article 14. Collection costs.
If the client is in default or fails to fulfil one or more of his obligations, all judicial and extra-judicial costs (including the usual collection costs) are to be borne by the client.
Article 15. Liability.
If SunSmiles is held liable, this liability shall be limited as follows;
1. SunSmiles ’s liability is limited to the amount of the payment made by the insurance company, insofar as this is covered by its liability insurance.
2. If the insurance company does not proceed to payment in a case or if damage is not covered by the insurance, SunSmiles liability is limited to a maximum of the double of the invoice value of the order, or at least for that part of the order to which the liability relates.
3. In deviation from the provisions mentioned above in paragraph 2 of this Article, the liability shall be further limited in case of an order of longer than six months to the part of the fee due over the last month.
4. SunSmiles is never liable for any accidents, damage, consequential damage for wearing/or using supplied products.
5. Wear and tear do not fall under any liability of SunSmiles.
6. Each further liability on our part, and in particular that for consequential damage, is excluded.
Article 16. Warranty
1. The goods delivered by us, insofar we have not manufactured them ourselves, are supplied with a warranty for the lack of materials and manufacture defects. We shall maintain the warranty period applied by the relevant manufacturer.
2. We provide a limited warranty for the period of one calendar year for goods that we produce ourselves.
3. Goods that we receive for a warranty assessment are to be sent to our warehouse free of charge and for risk of the sender. Returning these goods to the client shall be done each time at his expense and risk.
4. A warranty of three months applies to special deliveries/custom orders. It is not possible to return special deliveries.
Article 17. Force majeure.
1. Force majeure is understood to mean in these general terms and conditions, in addition to what is laid down in law and jurisprudence, all external causes, foreseen or unforeseen, on which SunSmiles cannot exert any influence, but due to which SunSmiles is not capable to fulfil its obligations. Strikes at SunSmiles’ company are included in this as well.
2. SunSmiles also has the right to invoke force majeure, if this circumstance that prevents (further) performance occurs after SunSmiles should have fulfilled its obligation.
3. Disturbances in the regular supply of goods to be delivered or to be organised by third parties.
4. During force majeure SunSmiles obligations shall be postponed. If the period in which force majeure occurs lasts longer than one month and SunSmiles cannot fulfil its obligations in that time, both parties are authorised to dissolve the agreement without there being the obligation to pay compensation.
5. If SunSmiles has already partly fulfilled its obligations when the force majeure occurred or can only partly fulfil its obligations, it is entitled to invoice the part already carried out or to be carried out separately and the client is obliged to pay this invoice as if it concerned a separate agreement.
Article 18. Settlement of disputes.
The court in the district of SunSmiles ’s place of establishment is exclusively authorised to take cognisance of the disputes, unless the sub district court is authorised. Nevertheless, SunSmiles has the right to summon the opposite party for the court authorised according to law.
Article 19. Applicable law.
Dutch law applies exclusively to all terms and conditions to which offers and/or agreements apply in full or in part between SunSmiles and the client.
This agreement is deemed to have been concluded in Bonaire, Dutch Caribbean under Dutch law.