ARTICLE 1: APPLICABILITY
a. These terms and conditions apply to all offers, sales and deliveries by the Vennootschap Onder Firma (partnership after Dutch Law) Mega Stoffen V.O.F. (registration number chamber of commerce 08115799) and or their successor, with among others the trading name www.megastoffen.nl, to a third party, to all activities executed by Mega Stoffen by order of a thirdparty, and to all agreements in the broadest sense of the word entered into by Mega Stoffen with a third party.
b. These terms and conditions apply in and outside the Netherlands, regardless of the place of residence or registered office of the parties involved in any agreement, and regardless of the place where the agreement has come about or should have been implemented.
c. If the purchaser/client has purchase conditions in place, these purchase conditions will not be binding for Mega Stoffen in so far as they deviate from these terms and conditions of delivery.d. Any deviation from these terms and conditions in offers, orders/agreements used or allowed by Mega Stoffen at any time to the benefit of the buyer/client can never be construed as the latter’s right to appeal to it later or to claim the application of such deviation for him/her as an established fact.
e. If the buyer/client takes note or could have taken note of these general conditions in another language than the Dutch language and differences in interpretation arise from the respective versions, the Dutch version will prevail over the version in the foreign language, unless Mega Stoffen expressly waives this in writing.
ARTICLE 2: OFFERS
a. All offers and quotations are non-committal, unless explicitly stated otherwise. They have been made to the best of Mega Stoffen’s knowledge and are based on data that may have been provided on the request for an offer.
b. The specifications provided by Mega Stoffen on websites, in images, catalogues, brochures or drawings or in any other way with respect to size, capacity, performance, colour, material structure, finish or results should be regarded as having been provided as estimates and as having been provided non-committally. Mega Stoffen is not held to comply with these specifications and therefore does not accept any liability for any incorrectness in these data.
ARTICLE 3.1: ORDERS/AGREEMENTS
a. An order is understood to mean: every agreement with Mega Stoffen, regardless of whether it undertakes to execute activities or make staff, material or space available or carry out any other performance whatsoever, in the broadest sense.
b. All agreements entered into with Mega Stoffen will only become binding upon a written confirmation by Mega Stoffen or due to Mega Stoffen having commenced the execution of the order. Any supplements or changes to the afore-mentioned agreements will only become binding for Mega Stoffen after and in so far as these have been accepted and confirmed in writing by Mega Stoffen. The buyer/client will be deemed to have accepted changes or supplements to agreements entered into with Mega Stoffen, if the buyer/client has not objected in writing against these changes and/or supplements within eight days after he has or could have taken cognizance of these changes and/or supplements. The buyer/client is deemed to have knowledge of the said changes and/or supplements and to have accepted these at the moment at which Mega Stoffen has commenced the activities to which these changes and/or supplements are related. Only the Board of Directors and possibly those explicitly authorised by the Board of Directors to enter into agreements on behalf of Mega Stoffen are allowed to do so.
c. Unless explicitly agreed on otherwise in writing, Mega Stoffen is entitled at all times to have part of the order or the entire order executed by a third party, on the understanding that these terms and conditions also apply in the favour of this third party, provided that Mega Stoffen authorises such third party in writing – even afterwards, if necessary – to appeal to these terms and conditions without this authorisation causing any obligations for Mega Stoffen.
ARTICLE 3.2: SUPPLEMENT TO: DISTANCE CONTRACTS
a. Where distance instructions/agreements have been agreed that are in conflict with legislation then in force, and the buyer/client justifiably relies on such, Mega Stoffen shall respect the content of the relevant legislation. This means that if provisions in these conditions which due to their general character in such circumstances are at any time in conflict with the relevant legislation, they shall be subordinate to such.
b. Goods delivered to the buyer/client by Mega Stoffen on the basis of measurements provided, wholly or in part, by the buyer/client cannot be legally returned by the buyer/client.
ARTICLE 4: LIABILITY
a. Except for the provisions of Article 9 of these terms and conditions, Mega Stoffen is not liable for any damage caused either directly or indirectly by the items delivered – including extra work – not being in compliance with the agreement, unless this is due to Mega Stoffen’s intent or gross negligence. Consequently, Mega Stoffen also does not accept any liability in the event of serious calamities, such as fire, water damage and any outside contingency, such as war and earthquakes.
b. If the goods delivered by Mega Stoffen at any time and in any form and/or under any circumstances cause an allergic reaction to the buyer/client and/or third parties, Mega Stoffen can never be held liable by and/or on the part of the buyer/client, neither directly nor indirectly.
c. If Mega Stoffen should be liable for any other reason for any damage under the agreement, the damages payable will not exceed the invoice amount (exclusive of value added tax) with regard to the respective goods and/or services, with a maximum of EURO 50.00 (in words: fifty euros).
d. A claim under these terms and conditions does not suspend the buyer’s/client’s payment obligation towards Mega Stoffen.
ARTICLE 5: PERIOD AND LOCATION OF DELIVERY
a. The periods of delivery mentioned in the offers, confirmations and contracts are to the best of Mega Stoffen’s knowledge and will be complied with as much as possible, but they are not binding for Mega Stoffen.
b. If these periods are exceeded due to whatever cause, the buyer/client will not be entitled to damages, dissolution of the agreement or non-compliance with any obligation arising for him from the respective agreement or from any other agreement whether or not connected with this agreement.
c. If the delivery period is exceeded by a wide margin, at the discretion of Mega Stoffen, Mega Stoffen will enter into further consultation with the buyer/client.
d. Delivery is ex Mega Stoffen company or any other location to be decided by Mega Stoffen.
e. If goods sold or services offered by Mega Stoffen are not accepted after they have been offered to the buyer/client, they will be available to the buyer/client for a period of five working days. Throughout this period, the goods are stored for the buyer’s/client’s account. After the period mentioned above, the total amount that would be payable for purchase or compliance, increased with the costs and interest, could be claimed from the buyer/client, even without delivery of the said goods or services. The payment will then be deemed made as damages to Mega Stoffen.
f. If the buyer/client does not comply with any obligation arising from this agreement or any other agreement connected with the order or does not do so in time, Mega Stoffen, upon informing the buyer/client in writing that he is default, without judicial intervention, will be entitled to suspend the execution, without Mega Stoffen being held to pay any damages.
ARTICLE 6: TRANSPORT AND TRANSPORT RISK
a. The choice of the means of transport is for Mega Stoffen to decide.
b. The transport of the goods ordered/purchased with Mega Stoffen is for the purchaser’s/client’s account.
c. As from the moment of dispatch, all goods ordered/purchased from Mega Stoffen travel at the purchaser’s/client’s risk. Also if costs of carriage to the delivery address have been agreed on, the purchaser/client will be liable for any damage sustained during transport.
d. The goods will be delivered only to the ground floor. If goods are to be delivered at another location than at ground-floor level, the additional costs and risks are to be borne entirely by the buyer/client. If at the time of delivery the buyer/client is not present or does not appear to be able to receive the goods or is otherwise in default to receive the goods, Mega Stoffen will be entitled to convert the delivery into an obligation for the buyer/client to collect the goods at the address provided by the carrier after the latter has informed the buyer/client by leaving a written message to such effect.
e. At arrival or receipt of the goods, the buyer/client has to check the condition of the goods. If it then becomes apparent that the goods or materials have sustained damage, he has to take all measures to obtain damages from the carrier. By signing the receipt provided by or on behalf of Mega Stoffen, the buyer/client declares he has received the goods in good condition.
ARTICLE 7: PRICES AND COSTS
a. Mega Stoffen fixes a price or fee for every order individually. This price or fee is exclusively intended as the amount to be paid for the performance to be executed by Mega Stoffen, including the normal costs involved. The prices mentioned in the offer are based on the cost price factors, rates, wages, taxes, rights, expenses, cargo et cetera then known. In the event of an increase of any of these factors, Mega Stoffen will be entitled to change the offered (selling) price accordingly.
b. Therefore, the price or fee does not include any levies imposed by the government or other bodies, including fines, insurance premiums etc.
c. Mega Stoffen is entitled to demand down payments, or a deposit or security (in the form of a bank guarantee) in advance.
d. Mega Stoffen reserves the right to charge shipping costs.
ARTICLE 8: TERMS AND CONDITIONS OF PAYMENT
a.1. Unless explicitly agreed on otherwise in writing, payment of invoices sent by Mega Stoffen must be made within 8 (eight) days upon invoice date, without deduction of discounts and without any form of compensation.
a.2. In online transactions trough a website, like for example with web shop activities payments are done in advance via a payment method indicated on the website, or via an explicitly in writing agreed upon other method.
c. All payments, without deduction or settlement of debt, are to be made at the offices of Mega Stoffen or into a bank or giro account to be designated by Mega Stoffen.
d. Discounts can only be granted upon mutual consultation between Mega Stoffen and the buyer/client. Unless explicitly agreed on otherwise in writing, these are one-off discounts. With subsequent transactions no appeal can be made to previous discounts.
ARTICLE 9: COMPLAINTS
a. Any complaints about the delivery of goods, the services provided and invoice amounts, must be submitted to Mega Stoffen in writing by registered letter within fourteen days upon receipt of the products, services or the respective invoices, with the facts to which the complaints are related carefully stated. The purchaser’s/client’s right to complain lapses with respect to the goods used, edited and/or processed by or on behalf of the purchaser/client. This also applies to opened goods or goods whereof the packaging is damaged.
b. Complaints with respect to the stipulations in these terms and conditions as referred to in, inter alia, Article 6:233, under a, of the Dutch Civil Code (voidness regarding one or multiple stipulations on the grounds of being unreasonably onerous) must also be submitted to Mega Stoffen in writing by registered letter within fourteen days upon taking cognizance of these terms and conditions or the time at which these could reasonably have been taken cognizance of, with the facts to which the complaints are related carefully stated. The right to complain lapses at the moment at which the agreement is brought about. The buyer/client refrains from making an appeal afterwards on the grounds of one or multiple stipulations in these terms and conditions being unreasonably onerous, in so far as the stipulations felt to be unreasonably onerous are not imperatively prescribed by law.
c. If the complaints submitted do not comply with the provisions above, they can no longer be received, and the buyer/client will be deemed to have approved the delivered goods and/or performed services. If in Mega Stoffen’s opinion a justified complaint has been submitted, it will have the right to pay to the buyer/client a sum in damages to be decided in mutual consultation, or to proceed to making a new delivery while keeping the current agreement unchanged, under the buyer’s/client’s obligation to return to Mega Stoffen the incorrect or faulty good(s) delivered carriage paid, at the discretion of Mega Stoffen.
d. Mega Stoffen will only be held to take cognizance of complaints submitted, if at the moment at which the complaints are submitted the buyer/client involved has integrally complied with all his existing obligations towards Mega Stoffen, regardless of what these obligations consist of and from whatever agreement they arise.
e. Return shipments insufficiently packed or bearing insufficient postage will be refused by Mega Stoffen. All return shipments from purchasers or clients are for their account and risk.
ARTICLE 10: CANCELLATION/DISSOLUTION AND SUSPENSION
a. If the buyer/client is or remains in default in any way with respect to complying with his obligations regarding deliveries or activities executed or to be executed by Mega Stoffen previously, or pursuant to other obligations, Mega Stoffen has the right to suspend its obligations towards the buyer/client or to cancel/dissolve the underlying agreement(s) in whole or in part, without being held liable by the buyer/client in any way and without prejudice to the rights to which Mega Stoffen is entitled. Mega Stoffen will also have this right, if the buyer/client is declared bankrupt, has petitioned for suspension of payment, the Debt Rescheduling Private Individuals Act (Wettelijke Schuldsanering Natuurlijke Personen – WSNP) is declared applicable, other forms of debt supervision or winding- up of the company or business activities occurs, or if – to the standards of Mega Stoffen – these circumstances threaten to occur. All claims Mega Stoffen has on the buyer/client will then be immediately due and payable.
b. If the buyer/client wants to dissolve or cancel the agreement(s) he has entered into with Mega Stoffen, outside the te period determined by law and where there is a by law defined case of purchase at a distance, Mega Stoffen will also be entitled to demand compliance with the agreement(s) entered into, or – at the discretion of Mega Stoffen – the buyer/client will have to pay cancellation costs of at least 30% of the selling value.
c. The textile products and/or supplies delivered by Mega Stoffen have, in view of the nature and manufacturing techniques of these products, a size, colour, structure and/or composition tolerance. A deviation within the applicable tolerance does not entitle the buyer/client to cancel, terminate or suspend the agreement.
ARTICLE 11: COMPENSATION IN THE CASE OF NON-PAYMENT OR LATE PAYMENT
If payment of the invoices sent by Mega Stoffen has not taken place within 8 (eight) days upon invoice date, the buyer/client will be deemed to be legally in default and Mega Stoffen will have the right to charge to the buyer/client interest on the full payable amount as from the expiry date equal to the statutory interest rate with a minimum of 1% per month or a part of this, without prejudice to the other rights to which Mega Stoffen is entitled, including the right to recover all costs under the claim, both court costs and extrajudicial collection costs, the latter of which are fixed in advance at 15% of the amount to be claimed, with a minimum of EUR 250 (in words: two hundred and fifty euros), all of the above without notice of default. NB: Where the legislator has set the extrajudicial collection costs to be charged to the purchaser/client by law, the purchaser/client will owe extrajudicial collection costs in accordance with the relevant provisions of the law.
ARTICLE 12: RETENTION OF TITLE
a. As long as the buyer/client has not made full payment to Mega Stoffen for goods, parts and installations delivered to him by Mega Stoffen and/or activities executed for him by Mega Stoffen, these goods and/or materials, which are for the buyer’s/client’s account and risk, will remain the undisputed property of Mega Stoffen.
b. If a buyer/client does not comply with any obligation from the agreement with respect to the goods sold and/or activities executed, Mega Stoffen, without any notice of default being required, has the right to take the goods or materials back, in which case the agreement will be dissolved without any judicial intervention, without prejudice to the right of Mega Stoffen to claim compensation at law or extrajudicially for any damage suffered or yet to be suffered by Mega Stoffen, including loss suffered, lost profit, interest, transport costs etc.
c. Mega Stoffen reserves the right to actually retain goods, tools, materials, vehicles, money, negotiable instruments, (financial) documents et cetera which it has obtained from the buyer/client under whatever title, until the buyer/client has fully complied with his financial and other obligations towards Mega Stoffen.
d. For transactions with a buyer/client established in a country where prolonged retention of title applies, Mega Stoffen has the right to declare the prolonged retention of title as it applies in the respective country applicable at any moment of its choosing.
ARTICLE 13: FORCE MAJEURE
a. In the event of force majeure Mega Stoffen is no longer held to comply with its obligations towards the buyer/client. Force majeure includes such events and situations which have a clearly identifiable and direct influence on the company Mega Stoffen, such as serious interruptions of its production process, war (also outside the Netherlands), riot, epidemic, fire, traffic disruption, strike, exclusion, loss or damage during transport, accident or sickness among its staff, import restrictions or other limitations imposed by governments etc. Mega Stoffen will be discharged from its obligations, regardless of whether force majeure occurred in its own company or elsewhere, such as in the companies of suppliers, carriers, wholesalers etc.
b. In the event of impediments to executing the agreement due to force majeure, Mega Stoffen will be entitled, without judicial intervention, to suspend the execution of the agreement for a period not exceeding six months, or to dissolve the agreement in whole or in part, at the discretion of Mega Stoffen. The buyer/client will receive a written notice of such decision made by Mega Stoffen.
ARTICLE 14: INTELLECTUAL PROPERTY RIGHTS, DESIGN PROTECTION
a. The intellectual property rights of all products made, services rendered, etc. by Mega Stoffen for buyer or customer belong to Mega Stoffen. Use or alternative use of these rights, designs and or ideas of Mega Stoffen is strictly prohibited, unless explicit and written permission is granted by Mega Stoffen and all the relevant conditions of Mega Stoffen are met in full.
b. If the buyer/client dos not comply with the provisions as set out under 14a, Mega Stoffen will be entitled, without any further notice of default and/or judicial intervention being required, to claim a fine of at least EUR 11,500 (in words: eleven thousand five hundred euros) per day or a part thereof as long as this non-compliance continues.
ARTICLE 15: GUARANTEES
a. Mega Stoffen will exclusively grant a guarantee in accordance with the provisions of the guarantee clause, if such provisions have been delivered together with the products. In such cases, the guarantee will only take effect after the buyer/client has informed Mega Stoffen of his request in writing by registered letter.
b. If a guarantee is provided by Mega Stoffen but if no guarantee clause has been provided, the guarantee term will not exceed six months after delivery of the respective goods. The buyer/client will also need to inform Mega Stoffen of his request in writing by registered letter.
c. The guarantee includes repair or replacement of the goods delivered, at the discretion of Mega Stoffen. Outside contingency can never lead to Mega Stoffen being held to provide any guarantee.
d. The goods taken in for repairs by Mega Stoffen or with a therefore engaged third party remain in all cases for risk of buyer/client.
ARTICLE 16: APPLICABLE LAW AND COMPETENT COURT
a. The laws of the Netherlands apply to all offers, orders and agreements to be entered into with Mega Stoffen.
b. All disputes shall be subjected to the ruling of the court with absolute jurisdiction in the District of Overijssel, or to the ruling of another judicial authority, such at the choice of Mega Stoffen.
c. However, Mega Stoffen has the possibility at any desired moment to appeal to the applicable law of the country where the buyer/client is registered/has his registered office. In such case, contrary to the provisions set out under 16.b, the dispute will be submitted to the court that is competent ratione materiae in the buyer’s/client’s jurisdiction.
d. In addition, Mega Stoffen is entitled at any desired time to rely on the Vienna Sales Convention. In that event the court in the territorial jurisdiction where Mega Stoffen is based shall be authorised to rule accordingly. Mega Stoffen does not have to notify the buyer/client of this in advance.
e. If any article or paragraph in these ‘General Terms and Conditions’ is in conflict with legislation and/or mandatory law and therefore has no effect, or if it is not applied by Mega Stoffen, this does not affect the validity of other articles.
These terms and conditions have been prepared and filed for the benefit of Mega Stoffen by De Incassokamer B.V. and have come about under the applicability of its current and future general terms and conditions of sale, delivery and payment, with due observance of Book 6, Title 3 of the Dutch Civil Code. These general terms and conditions are also subject to the © copyright of De Incassokamer B.V.