GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT
of New Edition Home B.V. having its registered office in Alkmaar
(office address: Hendrik Figeeweg 1-0004, 2031 BJ Haarlem, The Netherlands).
New Edition Home B.V. is registered at the Chamber of Commerce in Alkmaar, with number 60869046.
1. These general terms and conditions apply to all offers, order confirmations and all agreementsof whatever name concluded by New Edition Home B.V. (hereinafter referred to as: NEH) entered into agreements for the supply of goods and, where appropriate, the provision of services and the implementation of such agreements.
2. The general terms and conditions of the other party (hereinafter referred to as: customer) shall notapply to the contractual relationship between NEH and the customer, even if the customer refers to them, unless and insofar as the applicability of the general terms and conditions of the customer have been expressly accepted by NEH in writing and these general terms and conditions were handed to NEH before the conclusion of the agreement and are not in conflict with the provisions of the general terms and conditions of NEH.
3. In these general terms and conditions, the customer shall mean every natural or legal person whois in a contractual relationship with NEH pursuant to a purchase agreement or any other agreement concluded with NEH, as well as any natural or legal person who wishes to conclude a purchase or any other agreement with NEH. The customer shall also mean the natural or legal person at whose order and for whose account products are supplied.
4. If any provision of the present Terms and Conditions is invalid or annulled, the agreement shall,for the remaining part, continue in force to the maximum possible extent and the relevant provision shall be replaced by a provision which approximates the purpose of the original provision as much as possible.
5. If NEH does not always require prompt compliance with the present Terms and Conditions, thisdoes not mean that the provisions thereof are not applicable or that NEH loses the right to require prompt compliance with these Terms and Conditions in future cases.
1. All offers and prices shall be without commitment, unless expressly stated otherwise in the offer.The agreement between NEH and the customer shall have been concluded after NEH has confirmed the order placed by the customer to the customer in writing. Oral promises and arrangements shallonly be binding after and insofar as these have been confirmed to the customer in writing by NEH.
2. Of the offers made by NEH the following shall be part: designs, drawings, models, samples,descriptions, pictures, measurements, etc., as well as any appendices and documents relating to the offers of NEH. All these, as well as samples made in this connections by or for NEH, shall remainin the possession of NEH and shall be returned to NEH on their first demand and shall not be copied and/or handed to third parties without the express and written permission of NEH. In respect of the intellectual property rights, the stipulated in clause 10.3 shall apply. If the order, to which the offer relates, is not placed at NEH within 4 (four) weeks after the day on which the offer is offered, NEH can charge all the costs corresponding to the offer, including the costs of the samples as stated in the previous paragraph, to the account of the customer.
3. In respect of data, measurements and weights, colour, colour fastness etc. provided by NEH inoffers, pictures, drawings, price lists and catalogues, the customer shall take into account the usual tolerance, small differences and changes in e.g. constructions or parts, required with a viewto good execution. The products supplied by NEH may differ from the description in the catalogue, price list or order confirmation, if and insofar as it concerns small differences and minor changes.
3 DELIVERY AND DELIVERY TERMS
1. A delivery term shall never be considered to be a deadline. The customer cannot dissolve anagreement on account of the fact that the delivery term was exceeded - unless it is beyond all doubt that the performance of the agreement has become permanently impossible - and the customer shall not be entitled to damages on account of the fact that a delivery term was exceeded, unless NEH also fails to perform the agreement, or fails to perform same in full, within a reasonable period notified to NEH in writing after the expiry of the agreed delivery term. In that case the agreement may only be dissolved to the extent that the customer cannot in all fairness be required to continue the agreement.
2. If an international trade term is used in an agreement, this shall mean delivery in conformitywith the relevant definition of such trade term in the most recent version of the Incoterms of the International Chamber of Commerce (ICC). Unless agreed otherwise, delivery shall be ‘ex warehouse’ NEH.
3. NEH shall determine the transport of the products ordered by the customer, unless otherwiseconfirmed by NEH in writing. The transport cost shall be borne by the buyer.
4. Unless expressly agreed on otherwise in writing, delivery of products in the Netherlands shall be:
a. For orders of over a net invoice amount of € 500 free destination, where the limit of € 500 shallapply per destination specified in the order.
b. For orders of a net invoice amount under or equalling € 500, delivery shall be made for the accountof the buyer, where the delivery cost shall amount to € 25.
5. As soon as the products that are to be delivered have been unloaded at the place of destinationor have been handed to the customer at the warehouse of NEH, the risk in respect of these products shall pass to the customer.
6. If the customer requests to make delivery of the products in any other manner than the usual ones,NEH will be entitled to charge the buyer with the cost connected with this.
7. If the customer fails to take receipt of the products, NEH will be entitled to store the products forthe account and at the risk of the customer – in which case delivery shall be deemed to have taken place or, - at discretion of NEH – the agreement shall be deemed to have been dissolved entirely or partially without judicial intervention. The aforementioned shall leave the rights of NEH arising from common law intact; in addition, NEH expressly reserve the right to complete compensation.
8. Any return shipment to NEH shall always be made carriage paid, after prior written announcementand while stating the reasons thereof: If these conditions are not fulfilled, NEH will be entitled to reject the return shipment and / or send it back for the account of the customer. A return shipment shall be made at the risk of the customer.
1. All prices quoted by NEH are ex warehouse unless indicated otherwise. Unless indicated otherwiseby NEH, all prices and amounts are exclusive of VAT and other governmental levies.
2. The quoted prices are based on the actual cost factors which were valid at the time of theconclusion of the agreement, such as vendor prices, prices for raw materials, labor- and transportation costs, taxes, duties and other levies imposed by the government.
3. If there is an increase in the freight rates after the agreement has been formed, NEH shall beentitled to increase the agreed price accordingly and the customer will have to pay this price, unless it has been explicitly agreed in writing that the price is a fixed price. Increases in VAT or other government levies may always be passed on. NEH may also pass on any increases in the other costs arising for NEH after 3 months have elapsed since the formation of the agreement, partly in connection with the execution thereof - e.g. an increase in purchase prices and wages or due to changes in the rates of exchange.
1. All payments to NEH shall be made without any discount or set-off in the manner indicated byNEH within 30 (thirty) days from the invoice date, unless a different term is agreed in writing or stated on the invoice. NEH shall be entitled to deliver by installments and to invoice such installments separately.
2. NEH will be entitled at any time to demand complete or partial advance payment or surety inreplacement in the form desired by it, before performing (further).
3. If the customer does not effect full payment in due time, the customer shall be in default withoutfurther notice of default being required. NEH will then be entitled to suspend the fulfillment of all its commitments towards the customer and NEH will also be entitled to compensation pursuant to section 6:74 of the Dutch Civil Code, without prejudice to any other rights arising from common law.
4. If the customer fails to pay in due time and in full, NEH will be entitled, without further notice byNEH being required, to charge default interest from the due date to the day of full payment, in the amount of the statutory rate pursuant to section 6:119a of the Dutch Civil Code applicable on the due date. This interest shall be immediately payable without further notice of default. In addition, the customer will be obliged to pay to NEH those costs that are connected with the collection of the claim(s) of NEH; these costs shall be determined at 15% of the principal amount, without prejudice to the right of NEH to charge further reasonable cost pursuant to section 6:96 paragraph 2 under c of the Dutch Civil Code. In the event of judicial proceedings where NEH is fully awarded, the customer will also be obliged to compensate NEH for the actually incurred cost for the proceedings.
5. Payments effected by the customer shall always be used in the first place for settlement of all theinterests and costs due and, in the second place, of payable invoices that have been longest overdue, even if the customer should state that the settlement relates to a later invoice.
6 RETENTION OF TITLE
1. The title of the products delivered or still to be delivered by NEH shall only pass to the customerunder the suspensive condition of payment. The title of these products shall remain with NEH aslong as the customer has not paid the claims of NEH in respect of the consideration of the agreement or of a similar agreement. The title of the delivered products and the products still to be delivered shall also remain with NEH as long as the customer has not paid the performed work or the work still to be performed arising from such agreements and as long as the customer has not paid claims for failure in the fulfillment of such agreements, including claims in respect of penalty, interest and cost.
2. As long as the customer has not settled the above-mentioned claims, the customer will not beentitled to establish a right of pledge on the products supplied by NEH and the customer shall undertake to state on the first demand of NEH towards third parties that wish to establish such right on the products that the customer is not entitled to establish a right of pledge.
3. In the event that the customer should not fulfill any obligation towards NEH arising from theagreement in respect of sold matters or work that is to be performed, NEH will be entitled, without notice of default, to take back both the original products and the newly formed products. The customer shall authorize NEH unconditionally and irrevocably to enter the place where these products are held.
4. At the moment when the customer has fulfilled all his payment obligations arising from this andsimilar agreements, NEH shall pass the title of the supplied products to the customer subject to our right of pledge on behalf of other claims NEH has against the customer. Upon the first demand of NEH, the customer shall cooperate in actions that are required in that context.
5. If the customer continues to fail to pay within the term of 30 days after invoice date stipulated inclause 5 paragraph 1, NEH will be entitled to dissolve the agreement through a written statement of dissolution addressed to the customer. The customer will then be obliged to return the productssupplied by NEH or to cancel in another manner the performance carried out by NEH.
1. Transport damages or shortages of delivery shall be notified to NEH, or a third party to bedesignated by NEH, by the customer in writing within 24 (twenty-four) hours from delivery, while observing the instructions of NEH or a third party designated by NEH applicable in respect thereof, on pain of forfeiting the right to invoke the relevant damages or shortages.
2. Complaints on the side of the customer relating to incorrect delivery or to defects to the productsshall be notified in writing to us within 14 (fourteen) days after delivery. This term replaces the qualification 'without delay' as referred to in section 7:23 paragraph 1 of the Dutch Civil Code. The customer will be obliged to inspect the products on functionality and on any defects immediately after delivery.
3. In the event that the customer should establish, immediately after delivery, but at any rate withina period of 14 (fourteen) days, that breakage has occurred in the products, this breakage risk shall be borne by the customer up to 3% per delivered shipment for an order of up to € 2.500,-, 2% shall be borne by the customer per delivered shipment for an order from € 2.500.- up to € 5.000.- and for orders of over € 5.000,- 1% shall be borne by the customer. If the breakage percentage is higher than in the above-mentioned cases, the excess shall be compensated by NEH, either by subsequent delivery or by crediting the equivalent, all this to be determined in mutual consultation.
4. The applicability of section 7:46f paragraph 1 of the Dutch Civil Code is expressly excludedherewith.
5. The return of any goods delivered shall only be allowed after NEH’s prior consent and shall takeplace in accordance with the (transport) instructions to be given by NEH. NEH’s consent for the return of the goods or the acceptance of the goods by NEH shall never mean that NEH acknowledges that the defect alleged by the customer does indeed exist. NEH is not obliged to accept goods which are returned without its prior consent in writing. If in such a case NEH nevertheless accepts the goods returned, the goods shall be stored at the customer’s risk and expense and be kept at the disposal of the customer.
8 FORCE MAJEURE
1. If NEH fails in the performance of any obligation towards the customer, such failure cannotbe attributed to NEH if the latter’s performance is or was hindered or rendered impossible by a circumstance, whether or not foreseeable, beyond NEH’s control, such as, without being restricted to: failures - notably late delivery or non-delivery - on the part of suppliers and / or transporters (including the loss of goods during transport), shortages of any necessary materials or workers on the relevant markets, industrial disputes, sabotage, theft from the warehouses of NEH, government measures (including those of a foreign government), such as transport, import, export or production prohibitions, natural disasters, inclement weather, lightning, fire, explosions, war or similar situations.
2. If a situation as referred to in the previous provision occurs, NEH shall have the right to dissolvethe agreement, to suspend the performance of the agreement or to otherwise adjust the terms and conditions of the agreement, without being obliged to pay any compensation on account thereof. NEH shall inform the customer as soon as possible of the fact that it is unable to perform the agreement and of the exercise of their rights as referred to above.
1. NEH shall only accept liability insofar as that appears from this clause.
2. The customer will only be entitled to make (guarantee) claims against NEH, if the guaranteeobligations in respect of the products supplied by NEH have not been taken on by third parties (e.g. NEH their suppliers or manufacturers). In that case the liability of NEH shall be limited to defects due to manufacturing and material errors.
3. In the event of attributable shortcomings in the fulfillment of the agreement, NEH shall only beliable for alternative compensation, i.e. compensation of the value of the omitted performance or – at the discretion of NEH – supply of replacement products after return of the defective products. Any liability on the side of NEH for any other form of damage shall be excluded, including supplementary compensation in whatever form, compensation of indirect damage or consequential damage or damage due to loss of profit. Furthermore, NEH shall in no case be liable for loss due to delay, damage due to loss of data, damage due to late deliveries, damage due to insufficient cooperation, information or materials on the side of the customer and damage due to information or advice given by the customer, the content of which is not expressly part of a written agreement. No way NEH shall be liable if the customer makes changes or has changes made by third parties to products and / or services supplied by NEH. This shall also include the use for purposes for which the products and services have not been supplied.
4. The compensation to be paid by NEH on account of attributable shortcoming in the fulfillment of anagreement shall in no case amount to more than the sum of the amounts invoiced pursuant to that agreement (exclusive of VAT). From the amounts and prices referred to in this paragraph, the credits negotiated by the customer and granted by NEH shall be deducted.
5. In the event of intention or gross negligence on the side of NEH for which NEH can be sued, NEHshall only be liable for compensation of damage due to death or bodily injury. In these cases the compensation shall in no case exceed the insured amount per damaging event, where a series of connected events shall be considered one event.
6. Liability of NEH for damage due to a wrongful act other than referred to in paragraph 4 of thisclause shall be expressly excluded. If and insofar as this cannot be invoked by operation of law, the compensation per event – where a series of connected events shall be considered one event –in no case exceed the price (exclusive of VAT) negotiated in the agreement in the framework of which the event occurred, or, in the absence thereof, the agreement that is effective between the parties at the moment when the damage came about, but never in excess of the insured amounts.
7. A condition for the coming about of any right of compensation/complaint is that, after the damagecame about, the customer notified NEH in writing of it within 14 (fourteen) days. The customer will not be entitled to return the products in respect of which the customer has complained without stating reasons. If this is done without valid reason, to be determined by NEH, all cost of return shipment and additional cost shall be for the account of the customer. In that case, therefore, NEH shall be entitled to store the products at third parties for the account and at the risk of the customer.
8. The customer shall safeguard NEH against any damage NEH might suffer due to claims from thirdparties connected with products or services supplied by NEH, including, without limitation:
* claims from third parties, including employees of the customer, who suffer damage due to wrongful acts of NEH's employees who have been made available to the customer and work under the supervision the customer or at instructions of the customer;
* claims from third parties, including NEH's employees who suffer damage in connection with the execution of the agreement due to actions or omissions of the customer or due to unsafe situations at the company of the customer;
* claims from third parties that suffer damage due to a defect in the products or services supplied by NEH that were used, changed or passed on by the customer with the addition of or in connection with products and / or services of the customer and / or third parties, unless the customer proves that the defect is not due to use, change or passing on as referred to above.
9. With due observance of the stipulated in paragraphs 1 to 7 inclusive of this clause, any liabilityshall be limited by NEH, insofar as liability would be established by law, at any rate to the amount that is paid in the event in question under the business liability insurance of NEH. In all cases in which liability would be established by law pursuant to this clause, the customer will only be entitled to compensation of damage if and insofar as the insurance of NEH provides entitlement to payment in the event in question.
10 INTELLECTUAL PROPERTY
1. All rights of intellectual or industrial property to all the products / services, designs, drawings,models, samples, descriptions, pictures, measurements, analyses, documentation, reports supplied pursuant to the order or agreement shall exclusively rest with NEH.
2. The customer will not be entitled in any manner to make claims to the rights mentioned inparagraph 1. The customer will only be permitted to sell the products bought from NEH in unchanged form. The customer shall expressly not change, multiply or copy the purchased products in anymanner. Neither shall the customer use any drawings, pictures, paintings, etc. shown on the products in any manner other than with and in accordance with the express prior written permission from NEH.
11 OBLIGATIONS OF THE BUYER
1. The customer shall always give NEH in due time all the data or information that is useful andrequired for proper execution of the agreement and cooperate fully thereto.
2. If data that are required for the execution of the order or agreement have not been made availablein due time or not as agreed on to NEH or if the customer does not fulfill his obligations in any other manner, NEH shall at any rate be entitled to suspend the performance of the order or agreementand to charge the costs resulting from that at our current rates.
1. NEH will be entitled to dissolve the agreement entirely or partially with immediate effect if thecustomer does not fulfill any obligation arising from the agreement that is of such serious nature that continuation of the agreement cannot be demanded from NEH in reasonableness and the customer, after he has received notice of default and a reasonable term has been set to fulfill his obligation(s) after all, continues to fail in his fulfillment of this obligation or to take the proper steps to correct this.
2. NEH will at any rate be entitled to terminate the agreement in writing, completely or partially,with immediate effect, if the customer is declared bankrupt, if the customer files for or is granted suspension of payment or if the customer is otherwise not able to fulfill his payment obligations. In respect of the dissolution as referred to in the previous sentence NEH shall never be obliged to pay any compensation.
3. If, at the moment of dissolution, the customer has already received goods and / or services inrespect of the execution of the agreement, NEH shall only be able to dissolve the agreement partially, i.e. exclusively for that part that has not yet been executed by the supplier. Amounts that NEH invoiced before the dissolution in respect of what NEH has already performed or supplied in the execution of the agreement shall remain fully due and shall be immediately payable at the moment of the dissolution.
4. Dissolution of the agreement shall take place by registered letter with recorded delivery to theother party.
13 OTHER STIPULATIONS
1. Changes or additions to the order confirmation, agreement or these general terms and conditionsshall only apply insofar as agreed on in writing.
2. Use of the products and / or services supplied by NEH shall be for the account and at the risk of thecustomer.
3. Notifications that the parties will give to each other by virtue of this agreement shall be in writing.Oral messages, promises or arrangements shall not bind the parties, unless these have been confirmed in writing.
4. NEH will be entitled to transfer to third parties all rights and obligations, arising from the orderconfirmation or agreement to which these general terms and conditions apply.
5. The customer will not be entitled to transfer to third parties his rights and obligations, arising fromthe order confirmation or agreement to which these general terms and conditions apply, unless with explicit written approval of NEH. Third parties shall include here parties connected or associated with the customer.
14 APPLICABLE LAW
The offers made by NEH and all agreements concluded by NEH shall be governed by Dutch law.
15 SETTLEMENT OF DISPUTES
Any disputes, including those disputes that are only considered such by one party, shall be broughtbefore the competent court in Haarlem, or before the court in the place of residence of the customer, at the exclusive discretion of NEH, unless NEH indicates that it wishes to settle thematter in arbitration.
These General Terms and Conditions have been filed under the number 60869046 at the Chamber of Commerce in Alkmaar, The Netherlands.