These are the Terms & Conditions of Instinctiv Bicycles BV (“Instinctiv”), having its registered office at Gedempt Hamerkanaal 253, 1021 KP Amsterdam (The Netherlands) and registered with the Chamber of Commerce under number 74292242.
These Terms & Conditions apply to Clients who access the Instinctiv website and/or place an order for Products and/or Services, either online or offline. Please read these Terms & Conditions carefully before accessing and/or ordering any Products and/or Services. These Terms & Conditions are applicable as from 15 November 2020.
In these general terms and conditions (“Terms & Conditions”), the following definitions shall have the following meanings. The definitions can be used in both singular and plural:
1.1. Agreement: any and every agreement entered into between Instinctiv and a Client including these Terms & Conditions, any amendment thereto and any actions or legal transactions connected with the execution of that Agreement and, seen in retrospect, any and all actions and legal transactions necessary for entering into that Agreement;
1.2. Client or You: all natural or legal persons (end user or reseller) with whom Instinctiv enters into an Agreement or with whom Instinctiv is negotiating about the conclusion of an Agreement;
1.3. Instinctiv or We or Us or Our: Instinctiv Bicycles B.V., a private company with limited liability under the laws of the Netherlands, having its registered offices in Amsterdam, the Netherlands;
1.4. Order: any order placed by a Client with Instinctiv, either by using Instinctiv’s Webshop or otherwise;
1.5. Pre-Order: an Order placed by a Client for which the delivery date is or will be determined later;
1.7. Products: any and all goods which are the subject of an Agreement;
1. 8. Services: all services provided by Instinctiv to the Client, which are the subject of an Agreement;
1.9. Webshop: our online internet shop that can be found at www.instinctiv.bike.
2.1. The current Terms & Conditions form part of all Agreements and any and all offers and/or proposals thereto and apply to all Product sales and related Services, actions and legal transactions between Instinctiv as a seller and a Client.
2.2. Applicability of any other general terms and conditions, either of Client or of a third party, is excluded.
2.3. We reserve the right to revise and amend these Terms & Conditions from time to time. You will be subject to the Terms & Conditions that are in force at the time that you entered into an Agreement with Instinctiv unless the amendment is required by law or governmental authority, in which case the amendments may apply to orders previously placed.
3.1. A quotation or price offer, in our Webshop or otherwise, shall not be binding on Instinctiv and shall qualify only as an invitation to the Client to place an Order.
3.2. An Agreement shall only be concluded to the extent that Instinctiv accepts an Order from the Client in writing (e-mail) or if Instinctiv executes an Order. If at the request of Client Instinctiv carries out any work for Client before an Agreement is concluded, then Client shall remunerate Instinctiv in accordance with Instinctiv’s customary rates.
3.3. An Agreement with the Client shall not become effective until Our acceptance and after, if applicable, termination of the cooling off period as set out in Article 8.
3.4. After acceptance of an Order, Instinctiv shall at all times be entitled to cancel such Order without stating its reasons, in which case Instinctiv shall not be obliged to refund any more than advance payments already made by Client, if any.
4.1. The provisions of Article 3 shall apply mutatis mutandis to the provisions in this Article.
4.2. By placing a Pre-Order in the Webshop or otherwise, the Client makes a reservation to purchase the Product in question on time, i.e. by a delivery date yet to be specified. In order to secure the Pre-Order Instinctiv will request the Client to make a partial advance payment.
4.3. As soon as the Product in question becomes available, Instinctiv will notify the Client, request payment of the balance of the purchase price and communicate the delivery date. Instinctiv is only obliged to deliver the Product after the full purchase price of the Product, including VAT and shipping costs, has been paid.
4.4. In case the Product in question will not be available in the foreseeable future, Instinctiv shall inform the Client and shall have the right to cancel the Pre-Order. In case We cancel the order, Instinctiv shall refund the payments already made by Client for the Product concerned no later than 14 (fourteen) calendar days, without having any obligation to pay damages, compensation or interest.
5.1. Instinctiv shall observe due care in informing the Client of the figures, measurements, weights, features other information applicable to the Products, but cannot warrant that these shall be free of deviations. Any specifications or samples demonstrated or made available shall be no more than indications of the Products concerned.
5.2. Instinctiv warrants only those features, qualities of its Products that are explicitly agreed in writing. All other specific or implied warranties are – to the extent allowed under applicable mandatory law – hereby expressly excluded.
5.4. If Instinctiv should deliver Products to the Client which Instinctiv has obtained from its own suppliers, Instinctiv shall under no circumstances be obliged to recognize a warranty or liability in respect of the Client which is more far-reaching than that which Instinctiv can claim from its own supplier.
5.4. If, in Instinctiv’s opinion, the Client has been able to prove that any Products supplied by Instinctiv to the Client do not function properly, Instinctiv may choose, at its sole discretion, between:
– re-supplying the Products upon the return of the Products;
– modifying the Products properly;
– granting the Client a discount on the purchase price to be agreed by mutual consent.
5.5. Instinctiv shall be fully discharged of its warranty obligations by complying with one of the options described above, and it shall not be held to pay any further compensation or damages.
5.6. The use of the Products shall remain completely at the Client’s risk, even if Instinctiv should carry out any repairs on the Products.
6.1. All Instinctiv’s prices are in EUR unless expressly stated otherwise. Insofar as prices are stated in other currency than EUR, then such statement of price is deemed to be based on the EUR equivalent of such price at the date the price statement was made. Prices stated in the Webshop include statutory value added tax (VAT). Costs of packing and shipping, import and export duties and taxes and any other surcharges, levies or taxes imposed or charged in respect of the Products and the transportation thereof are to be borne by the Client.
6.2. Any change of factors having an impact on the prices of Instinctiv, including but not limited to rates of third parties, currency exchange rates, insurance rates, import and export duties and any other charges payable upon importation or exportation, freight charges and other charges, levies or taxes, may be charged on to Client by Instinctiv.
7.1. Delivery of the Products does not take place until the Client has paid Instinctiv the full purchase price, including any additional costs (such as VAT and shipping costs.
7.2. Delivery periods are always indicative, unless explicitly agreed otherwise. Any delivery period indicated by Instinctiv shall be based on the circumstances applicable to Instinctiv at the time the Agreement was concluded and, to the extent dependent on performance by third parties, on the information that those third parties provided to Instinctiv.
7.3. The commencement date of the delivery period is written on Instinctiv’s Order confirmation. If, for the execution of the Order, Instinctiv needs information from the Client, the delivery period commences on the date on which Instinctiv disposes of all the necessary information or resources, but not earlier than the date of the written Order confirmation.
7.4. Exceeding the term of delivery is no ground for dissolution (“ontbinding”) of the agreement by the Client, unless this has been explicitly agreed. However, the client has the right to dissolve the agreement if Instinctiv, after having been given notice of default in writing, still fails to deliver within a specified period of time of at least thirty (30) days.
7.5. The Client shall not be entitled to claim any damages or compensation in the event of an overdue delivery period.
7.6. Instinctiv shall at all times be entitled to deliver in part-consignments.
7.7. Bikes are fully assembled and adjusted by qualified technicians in our factory. Prior to shipment, specific components may be removed for safety reasons. Instinctiv expects the Client to be able to assemble these parts. If necessary, our Service Center provides telephone support on how to assemble the parts is available. The Service Center can be reached on working days during office hours.
8.1. If You are a natural person not acting in the course of a profession or business, You have the right to withdraw from your purchase and return your order without giving any reason and without extra costs.
8.2. The withdrawal period shall expire after 14 (fourteen) calendar days as from the day on which You or a third party other than the carrier indicated by You acquires physical possession of the Products. When Products are delivered in multiple lots or pieces, the withdrawal period shall expire after 14 (fourteen) calendar days from the day on which You acquire the physical possession of the last lot or piece.
8.3. The Products must be returned in the original box or the box provided by Instinctiv according to article 13.2 of these Terms & Conditions or must be handed over to Instinctiv without undue delay and in any event not later than 14 (fourteen) calendar days as from the day on which You exercise your right of withdrawal. The deadline is met if You have demonstrably sent back the Products before the period of 14 (fourteen) calendar days has expired.
8.4. You shall handle the Order as well as the packaging with the utmost care during the first 14 (fourteen) calendar days after delivery. You will be liable for any diminished value of the goods resulting from the handling of the Products other than what is necessary to establish their nature, characteristics and functioning. In order to establish the nature, characteristics and functioning of the Products, You should only handle and inspect the Product in the same manner as You would be allowed to do in a shop.
8.5. Combining items of the Products which have been delivered separately, before exercising the right of withdrawal, is not considered to be the mere establishment of the nature, characteristics and functioning of the Products. Therefore Instinctiv reserves the right as to compensate any diminished value of the Products (or items) or exercise its right as set out in Article 8.6.
8.6. If you have failed to take reasonable care of the Products, We reserve the right to refuse a refund and return the Products to you at your own cost.
8.7. In case You send the Products back to Instinctiv, Instinctiv can refuse repayment as long as Instinctiv has not received the returned goods or until You have proved You have returned the Products, depending on which event occurs first.
8.8. Instinctiv shall reimburse You the purchase amount of the Products including any shipping costs charged with regard to the delivery of the Products no later than 14 (fourteen) calendar days starting from the day We received your returned Products.
8.9. Instinctiv shall use the same means of payment as You used for the initial transaction, unless You have expressly agreed otherwise and provided that You do not incur any fees as a result of such reimbursement. In the event that You have expressly opted for a type of delivery other than the least expensive type of standard delivery offered by Instinctiv, Instinctiv shall not reimburse the supplementary costs concerned.
8.10. In order to exercise your right to withdraw, You must fill out the withdrawal form at the last page of these Terms & Conditions or make a similar unequivocal statement and send it to the e-mail as indicated in the header above. We will send You an acknowledgement of your withdrawal.
8.11. Unless the Products are faulty, damaged upon delivery or incorrect, the right of withdrawal as set out in this Article is not applicable to Products which are:
– bespoke Products;
– Products that – for whatever reason – deteriorate or expire rapidly;
– Products that are sealed for health protection or hygiene reasons, after they have been unsealed;
– Products that have been inseparably mixed or assembled.
8.12. Whenever the Agreement comprises the delivery of Services, the term to exercise the right of withdrawal begins – as far as the provision of these Services is concerned – on the day the Agreement was concluded.
9.1. Unless expressly agreed upon otherwise, Instinctiv shall – at its sole discretion – determine the appropriate mode of shipment and select the carrier. Whenever the Client is a natural person not acting in the course of a profession or business, Instinctiv shall bear the risk of transport.
9.2. We shall only be obliged to properly and timely deliver the Product to the carrier; any transit times specified in the Webshop shall only be non-binding estimates.
9.3. If the Client is a natural person not acting in the course of a profession or business, the risk of accidental destruction, damage or loss of the Products delivered shall pass to the Client upon delivery of the Product to the Client or upon the Client’s default of acceptance. In all other cases, such risk shall pass to the Client upon delivery of the Product by us to the carrier.
9.4. The Client shall bear the shipping costs. The shipping costs include the costs for a transport insurance against the usual risks of transportation.
9.5 The Client shall bear the usual return shipping costs when exercising the right to revoke in case the delivered product is consistent with the ordered product.
10.1. Irrespective of the actual delivery date, the title to the Products shall not be transferred to the Client until it has paid Instinctiv the full sum for the Products, including the purchase price, any surcharges, interest, taxes and costs payable pursuant to these Terms & Conditions or an Agreement and any Services rendered or to be rendered in respect of the Products.
10.2. Until Instinctiv has transferred the title of the Products concerned to the Client irrevocably and unconditionally, the Client has no right as to lend, let, exploit, pledge or otherwise encumber these Products to or on behalf of third parties.
10.3. If and as long as the title to the Products has not yet been transferred to the Client irrevocably and unconditionally, the Client shall inform Instinctiv forthwith in writing in the event that the Products are seized, attached, garnished or if any other claim should be made concerning the Products.
10.4 In the event of attachment, seizure, garnishment, bankruptcy, involuntary liquidation or a (provisional) moratorium of payments, the Client shall immediately inform the administrator or liquidator, the bailiff or the process-server serving the seizure, garnishment or attachment, of Instinctiv’s rights of title.
11.1. The Client shall be obliged to carefully inspect the Products immediately upon arrival or to have these examined upon receipt by the Client itself or any third party acting at its instructions, whichever is earlier.
11. 2. In case of defects to the Products or any discrepancies in quality, quantity or weight or seizes between the Products supplied and the specification thereof in the relevant order confirmation or invoice, the Client must inform Instinctiv in writing no later than five (5) calendar days after receipt or the Products, by using the form on our website at https://www.instinctiv.bike/guarantee/. The notification must be specified clearly and precisely.
11.3. Defects which could reasonably not have been discovered within the above mentioned period of five calendar days, must be reported in writing immediately after discovery, but in any case not later than 14 (fourteen) calendar days after the receipt of the Products. Should the Client fail to inform Instinctiv within the above mentioned term, his rights concerning any irregularity or defect have lapsed.
11.4. The Client is obliged to immediately cease the use of the Products concerned after discovering any irregularity or defect, in the absence of which the Client can no longer exercise any rights with regard to such irregularity or defect. The Client shall provide any cooperation Instinctiv may require in order to investigate the complaint.
11.5. Before Instinctiv has agreed to such return in writing, the Client shall not return Products to Instinctiv. The return shipping is free of charge. The Products remain at the Clients risk until they have been received by Instinctiv.
12.1. Any information necessary for the performance of the Agreement by Instinctiv, shall be provided by the Client timely, completely and accurately.
12.2. All intellectual property rights concerning the Products, the (results of) the Services and/or the (contents of) the Website and Webshop are owned by or licensed to Instinctiv. The intellectual property rights concerning Products, (results of) Services and/or (the contents of) the Website or Webshop may not be copied or modified in any form without prior written consent of Instinctiv.
12.3. The Client may not remove or make invisible any trademarks or identifying marks on the Products, any documents accompanying and/or regarding the Products.
13.1. The statutory warranty is valid for two years from the date of delivery. In case of used Products which have been examined, maintained and/or refurbished and which are owned by an end-user, the term of warranty is twelve (12) months.
13.2. Warranty claims must be made at https://www.instinctiv.bike/guarantee/. The replacement of boxes is not covered by the warranty. In the event You need a replacement of the box, We’ll send You one for an additional fee.
13.3. This warranty does not cover normal wear and tear, improper assembly or follow-up maintenance, nor installation of parts or accessories. The warranty does not apply to damage or failure due to accident, misuse, abuse, or neglect. Modification of the frame or components shall void this warranty. Instinctiv is not responsible for incidental or consequential damages. This warranty does not affect the statutory or mandatory rights of the Client, when the Client is a natural person not acting in the course of a profession or business.
13.4. While Instinctiv adopts industry standard protections against computer viruses, it is not able to warrant that its Website and Webshop are free from computer viruses or any other malicious or impairing computer program.
13.5. In addition to the statutory warranty, We voluntarily grant an extended guarantee of 5 years as from the date of purchase for frames, excluding bearings and shocks as well as damages to the paintwork/anodisation.
13.6. Without any limitation of the statutory warranty rights of the Client, our voluntary guarantee is subject to the following additional conditions:
a. The guarantee does not cover damages caused by inappropriate or unspecified use according to the fields of use for the particular product, as for example
– neglect of product (lack of care and maintenance);
– modifications to frame or fork (for example engravings or lacquering);
– mounting and alteration of additional components that were not expressly approved by Us or replacement of our original components by components that do not have a similar quality;
– crash or excessive loads of any kind.
b. We reserve the right to choose whether to repair damaged frames and forks or replace them with a new model.
c. Whenever it is necessary to change a frame and/or fork We will replace them in the original colour subject to availability. Should the original colour no longer be available, the Client accepts any reasonable deviations from the original colour.
d. All guarantee rights are limited to the aforementioned and any additional incurred costs (such as assembly, transport, etc.). Costs for assembly or material due to a model-change are not covered. Within the framework of our voluntary guarantee, the Client shall bear these costs.
e. Our voluntary guarantee is valid and only for the original buyer of the product.
14.1. If Instinctiv is unable to fulfil any of its obligations towards Client due to force majeure, these obligations shall be suspended during the force majeure situation.
14.2. If a force majeure situation has lasted for one (1) calendar month, both parties have the right to dissolve the Agreement in writing entirely or in part. In the event of force majeure of Instinctiv, Client is not entitled to any compensation or damages, not even if Instinctiv would enjoy any benefit as a result of such force majeure.
14.3. Force majeure on the part of Instinctiv is to be understood as a case of ‘overmacht’ as mentioned in article 6:75 Dutch Civil Code, and furthermore any circumstance beyond the control of Instinctiv hindering the fulfilment of its obligations towards Client entirely or in part or because of which Instinctiv cannot be expected in all fairness to fulfil its obligations, regardless whether such circumstance could have been foreseen at the time when the Agreement was concluded. Such circumstances include but are not limited to fires, acts of terrorism, strikes and lockouts, the outbreak and/or spread of viruses and/or diseases, stagnation or other production problems suffered by Instinctiv or its suppliers, or problems in the transportation provided by Instinctiv or any third parties, any government measures, as well as the inability to obtain any permit or licence from any governmental body.
14.4. Parties shall notify each other as soon as possible of any (possible) force majeure situation.
15.1. Instinctiv’s liability shall at all times be limited to the amount paid out by the liability insurance company in the case concerned. These insurance policies have limited cover, inter alia with respect to the amount of the damages and the number of insured events per year. Upon request thereto, access may be obtained to the insurance cover note. Should no payment be made by virtue of aforementioned insurance policies, regardless of the grounds, the liability of Instinctiv shall be limited to the purchase price that was invoiced by Instinctiv and paid by Client in connection with the delivery at hand during a 12 (twelve) month period directly preceding the date on which the event leading to liability occurred, up to a maximum liability of € 10,000 (ten thousand euros).
15.2. Instinctiv will not be liable for losses that result from its failure to comply with the provision of the Agreement and/or these Terms & Conditions that fall into the following categories: a) loss of income or revenue, b) loss of business, c) loss of profits, d) loss of anticipated savings, e) loss of data, f) loss of management or office time and g) other direct loss, consequential loss, damages or expenses.
15.3. Any advice given by Us and/or our sales agents during the Order process is based entirely upon information by you. Where advice is given after visual inspection, such advice shall amount to an opinion only and we shall not accept any liability for any inaccuracies therein. Products and Services supplied are supplied only to correspond to the purpose for which these Products and Services are commonly supplied and not for any alternative use to which they may be put. We accept no liability whatsoever for any failure of Products and/or Services due to such alternative use, amendment or modification.
15.4. You confirm that you shall comply with any and all rules relating to the assembly of the Products and fully accept that we shall not be liable for any loss which results from forced, misdirected, inappropriate or unqualified installation or inadequate maintenance of the Products.
15.5. We shall accept no liability for death or personal injury, unless caused directly by our own willful intent or negligence .
15.6. In the event that Instinctiv involves third parties, Instinctiv shall not accept any liability whatsoever for failure to perform on the part of such third party except for failure to perform on the part of Instinctiv itself – to which article 15.1 applies. If the Client brings legal action directly against a third party, the Client shall indemnify Instinctiv against any claims by such third party in connection with such claim as well as against all expenses to be incurred by Instinctiv.
15.7. All rights of legal action and other powers of the Client towards Instinctiv in connection with the Products delivered by Instinctiv shall lapse upon expiry of a one (1) year term after the date on which the Client has become aware of – or could in all fairness have been aware of – the existence of such rights and powers.
15.8. Nothing in this Article is intended to affect any statutory or mandatory rights.
16.1. If Client fails to fulfil any of its obligations arising from the Agreement properly or in time, Client shall be in default and Instinctiv is entitled:
– to suspend the fulfilment of the Agreement until payment has been adequately guaranteed; and/or
– if the Client remains materially in breach of its obligations hereunder even after a written demand giving reasonable notice,: to dissolve the Agreement with Client entirely or in part;
all this without prejudice to Instinctiv other rights under any Agreement whatsoever and without Instinctiv being held to any damages.
16.2. If Instinctiv exercises its right of dissolution as mentioned in article 16.1, Instinctiv is authorized to set off any amount which may possibly be refunded to Client with a remuneration for activities already carried out as well as with a compensation for loss of profit.
16.3. In the event of bankruptcy, (provisional) suspension of payment, liquidation or attachment of one or more assets of Client or if Client is aware that any of these situations may occur, Client must notify Instinctiv thereof as soon as possible.
16.4. In case of a situation as referred to in article 16.3, all Agreements with Client shall be dissolved by operation of law, unless Instinctiv notifies Client that it wishes (part of) the Agreement concerned to be fulfilled, in which case Instinctiv is entitled without any default notice:
– to suspend fulfilment of the Agreement(s) concerned until payment has been adequately guaranteed; and/or
– to suspend all its payment obligations, if any, towards Client;
– all this without prejudice to Instinctiv’s other rights under any Agreement whatsoever and without Instinctiv being held to any damages.
16.5. In the event of a situation as referred to in article 16.3, all Instinctiv’s claims against Client shall be immediately payable in full.
17.1. Instinctiv is allowed to transfer the rights and obligations as set out in any Agreement with Client to third parties. If obligations of Instinctiv are transferred, Instinctiv must inform Client aforehand and Client shall be entitled to terminate the Agreement by the date on which the transfer shall take place. In such case, Instinctiv shall not be liable for any damages.
17.2. Client cannot transfer any rights or obligations from any Agreement to third parties unless after consent thereto by Instinctiv.
19.1. If and insofar as any provision of these Terms & Conditions cannot be invoked due to any imperative rule of law, the unfair character of these Terms & Conditions or grounds of reasonableness and fairness, the provision concerned, as far as contents and essence are concerned, shall in all events have a corresponding meaning to such an extent that the provision concerned may indeed be rightfully invoked.
20.1. These Terms & Conditions, as well as all Agreements and legal relationships to which they apply, shall be subject to the laws of the Netherlands. The applicability of the Uniform Law on the International Sale of Movable Property, the Uniform Law on the Formation of International Contracts for the Sale of Goods as well as the Vienna Convention on the Sale of goods is excluded.
20.2. Any disputes arising from the Agreement or these Terms & Conditions shall be brought exclusively before the competent court in Amsterdam.