THE FURNITURE PRACTICE BV
CONDITIONS OF SALE
1.1. These General Terms and Conditions of Sale (hereafter: “the Conditions”) apply to all offers made and contracts entered into by The Furniture Practice B.V. (hereafter: “the Company”), for the sale of goods (hereafter: “Goods”) and/or the supply of services (hereafter: “Services”) by the Company.
1.2 The Company has its statutory seat in Amsterdam, the Netherlands, and has its office at the address Keizersgracht 241, 1016 EA, Amsterdam, the Netherlands. The Company is registered in the Netherlands with No. 81740182.
1.3 The Conditions apply in preference to and supersede any terms referred to, offered or relied on by either party whether in negotiations or at any stage in the dealings between the Company and the customer of Company (hereafter: “the Client”) with reference to the Goods and/or the Services, with the exception however of terms in a written contract and/or an applicable order form of the Company (hereafter: “Order Form”). Nor will the Company be bound by any standard terms and conditions used by the Client, which are hereby rejected.
1.4. If there is a written contract in place between the Company and the Client and/or a contract is established through acceptance of an Order Form, both the terms defined in the written contract and Order Form as well as these Conditions shall apply, whereas terms stated in the written contract and Order Form take precedence. Offers shall not be binding unless confirmed by the Company in writing (including by e-mail).
1.5. The contract between the Company and the Client, including the Order Form (if applicable) and these Conditions, constitutes the entire agreement between the parties relating to its subject matter, and supersedes any previous agreement between the parties relating to that matter. Each party acknowledges that it has not entered into the contract on the basis of, and does not rely on, any representation, warranty or other provision that is not expressly agreed in writing. The contract may only be varied upon consent of both parties in writing. No delay or omission of either party in exercising any right or remedy in whole or in part shall be construed as a waiver of it, or operate so as to limit or preclude any further or other exercise of it, unless this is explicitly stated.
1.6 The Conditions have been deposited and can be consulted at the Dutch Chambers of Commerce (in Dutch: “Kamer van Koophandel”) and can be downloaded from the Company’s website: www.thefurniturepractice.nl.
2.1. All descriptions of the Goods are given by way of identification only. The Company maintains a policy of continuous product improvement, and reserves the right to alter specifications without notice at any time before delivery.
2.2. If a sample of the Goods has been exhibited to and inspected by the Client the contract shall not constitute a “sale by sample” and no warranty is provided that the Goods conform to the sample.
2.3. Upon delivery, the Client shall visually inspect the Goods. Subject as above, the Company shall replace the Goods free of charge upon written notification by the Client – to be provided ultimately within 7 days of delivery – if they are found to be materially different from those ordered, of defective workmanship or of a significantly lesser quality than that specified by the Company in writing or subsequent to the Order Form. After the aforementioned period the right of the Client to claim that the Goods are non-conforming shall lapse, except in case of clause 2.4.
2.4. In case a non-conformity of the Goods could reasonably not be discovered by the Client upon visual inspection, the Company shall replace the Goods free of charge upon written notification by the Client, to be provided as soon as possible after discovery of the non-conformity but ultimately within two (2) months of delivery. After this period the right of the Client to claim that the Goods are non-conforming shall definitely lapse.
2.5 If the replacing Goods are (again) materially different from those ordered, of defective workmanship or of a significantly lesser quality than that specified by the Company in writing or subsequent to the Order Form and are not acceptable to the Client, the Client may rescind the contract, without any other liability for the Company than to reimburse to the Client any payments that it has made in relation to the Goods.
3.1. Any Services described in the Order Form shall be provided by the Company to the Client at the price specified for those Services in the Order Form or, if there is no Order Form, as may be agreed between the Company and the Client, failing which the Company’s usual rates for such services shall apply.
3.2. Where the exact specification of the Goods, or of goods to be supplied by a third party in relation to which the Company is providing the Services, remains to be determined, the Client shall provide as soon as possible all detailed specifications, measurements and descriptions of its requirements as the Company may require, to the Company or as it may direct.
Following receipt of the Client’s instructions in relation to the proposal, the Company shall prepare a fresh proposal, if necessary, or shall proceed with the provision of the Services and/or supply of the Goods as ordered.
3.3. The Company will only be liable in respect of installation work carried out by itself, its employees, agents or sub-contractors, but will not be so liable in any case where there are direct contractual relations between the Client and an installing party other than the Company. In any event the Company’s liability for installation work shall be limited to the correction of any failure to use reasonable skill and care and liability for any death or personal injury caused by the negligence of persons in respect of whom the Company is vicariously liable. The Client shall:
3.3.1. be responsible for the safety of the personnel of the Company or of its sub-contractors whilst on the Clients premises;
3.3.2. comply with all relevant statutory requirements; and
3.3.3. maintain adequate insurance against the appropriate risks.
4.1. The Company will deliver the Goods to the delivery address provided by the Client during normal working hours (Mon-Fri 9am–5pm) by any method of transport at the Company’s option and shall, if included in the Services, install them or arrange for their installation there. The Client shall pay any applicable delivery charge incurred by the Company, including where appropriate relevant import tariffs, duties and other costs, which shall be added to the Price. The Company may make part deliveries.
4.2. If a delivery date is specified the Company will aim to despatch the Goods by then, but does not guarantee to do so. Time of delivery shall not be of the essence of the contract.
4.3. The Company shall not be liable for any damage, loss, the non-delivery or shortage suffered by the Goods whilst in transit unless the Client gives written notification of the claim to the Company within 7 days of delivery, or within such time as the Company may notify to the Client is sufficient to enable the Company to comply with its carrier’s requirements for claims.
4.4. The Company shall not be liable for any non-delivery of part of any consignment of the Goods unless the Client gives written notification of the claim to the Company within 7 day of delivery of the rest of the consignment.
4.5. If any delay is caused by the Client then the Client will be liable for any additional storage / warehousing / handling such as loading and unloading costs. If delivery is delayed by any cause beyond the reasonable control of the Company, a reasonable extension of time for delivery shall be granted and the Client shall pay such reasonable extra charges as shall have been occasioned by the delay. Alternatively, the Company may cancel the contract, in which case it shall refund to the Client in full the amount of the Price paid to date.
5.1. Any price(s) stated in the Order Form or otherwise notified by the Company or agreed by the parties are based on costs currently prevailing in respect of the Goods and/or Services stated. Any increase in prices due to the Client’s requirements shall be paid by the Client. Any increase in prices due, in the opinion of the Company, to a material increase in costs to the Company may, at the Company’s sole discretion, be passed onto the Client by an increase in the price.
5.2. All prices are exclusive of value added tax (hereafter: “VAT”), except where expressly stated otherwise. If VAT is due over the price of the Goods and/or Services, the Client shall pay the VAT.
5.3. A material increase in costs for the purposes of this clause shall include all and any costs incurred by the Company in providing the Goods and Services to the Client; including where appropriate relevant import tariffs, duties and other costs.
6.1. Payment terms are as stated in the Order Form. Unless otherwise specified in the Order Form, a deposit of 70% of the estimated total price, including VAT, is payable upon placement of the order or establishment of the contract. The balance of the actual price is payable within 14 days of delivery of the Goods supplied, with part payments being due in respect of part deliveries as the Company may require.
6.2. If payment of the price or any part of it is not made by the due date, the Company shall be entitled to charge interest on the outstanding amount, (both before and after any judgment) at the rate of three (3) % per annum above the Euribor rate.
7 RISK AND TITLE
7.1. The risk in the Goods shall pass to the Client upon delivery at the delivery address provided by the Client.
7.2. The title to the Goods shall not pass to the Client until the price, and any other indebtedness of the Client of the Company, has been paid in full.
7.3. Until then the Client shall:
7.3.1. hold the Goods in a fiduciary capacity as the Company’s bailee;
7.3.2. store the Goods separately, so that they may be readily identified as the Company’s property;
7.3.3. adequately insure the Goods;
7.3.4. upon demand, return the Goods to the Company or allow the Company access to any premises where they may be stored in order to recover them; and
7.3.5. not resell the Goods, except in the ordinary course of its business, in which case it shall hold the proceeds of sale upon trust, pay them into a separate identified account, and account to the Company for them upon demand.
8 INTELLECTUAL PROPERTY RIGHTS
8.1. All design right, copyright, patent rights and other intellectual property rights in all designs, drawings, goods or documents produced or supplied by the Company shall be owned by the Company, even if they have been commissioned by the Client.
8.2. Any such rights in any such things produced, supplied or made available by the Client shall remain the property of the Client, and the Client warrants its title to them to the Company, except as expressly disclosed in writing, and agrees to indemnify the Company against any claims by third parties in respect of infringement of their intellectual property rights.
8.3. The Client shall not remove, alter, deface or tamper with any of the trade or other marks, names or numbers affixed to or marked on the Goods, or allow anyone else to do so.
8.4 The Company will not sell Goods or provide any Services of which it knows that these infringe intellectual property rights of third parties. The Company does however not provide a warranty that the Goods or Services do not infringe any intellectual property rights of third parties.
9.1. The Company may rescind the contract (in Dutch: “ontbinden”) with immediate effect, without prior notification of default, by giving the Client notice in writing, if:
(a) the Client fails to pay any amount due under the contract on the due date for payment;
(b) the Client commits a material breach of any term of the contract;
(c) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(d) the Client’s financial position deteriorates to such an extent that in the Company’s opinion the Client’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy.
The Company shall not be liable for damages of the Client in such cases.
9.2. The Client may rescind the contract by notice in writing to the Company before delivery, without notification of default. As the Goods are manufactured to the Client’s order by the Company, the Client accepts that the Company might not be in a position to sell the Goods to a third party and accepts that it is liable for any losses and costs of Company in relation to such Goods. The Company, shall, however, use reasonable endeavours to mitigate its losses. The Company may in all cases charge the Client a 5% administration fee and all reasonable costs to include, but not limited to, the price for the Goods, loss of profit, handling, storage and disposal of the Goods.
9.3. If the Goods have been delivered, the Client may not rescind the contract and return any Goods which comply with the contract unless it notifies the Company and the Company agrees to accept the return of the Goods, both within seven (7) days of delivery. In such a case the Client shall pay all costs of return of the Goods and a cancellation fee which shall be charged at the reasonable discretion of the Company.
10 LIMITATION OF LIABILITY
10.1. The total amount of all liabilities of the Company to the Client in relation to a contract irrespective of the legal ground on which a claim is based, shall be limited to the total price for the Goods and Services covered by the contract (excluding VAT).
10.2 These Conditions will not limit or exclude liability when prohibited by law or liability caused by gross negligence or wilful misconduct (in Dutch: “bewuste roekeloosheid of opzet”).
10.3. The Conditions state the entire liability of the Company to the Client, and the Company shall be under no liability whatsoever to the Client other than that expressly stated herein.
11 FORCE MAJEURE
11.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(f) collapse of buildings, fire, explosion or accident; [and]
(g) any labour or trade dispute, strikes, industrial action or;
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of utility service.
11.2. Provided it has complied with clause 11.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under the agreement by a Force Majeure Event (hereafter: “Affected Party”), the Affected Party shall not be in breach of the agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
11.3. The corresponding obligations of the other party will be suspended, and it’s time for performance of such obligations extended, to the same extent as those of the Affected Party.
11.4. The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
11.5. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than three (3) months, the party not affected by the Force Majeure Event may terminate this agreement by giving twenty eight (28) days written notice to the Affected Party.
12.1 Notifications to the Company shall be made to its office address identified in the Conditions. Notifications to the Client shall be made to the address provided by the Client. Notifications must be sent by courier or by registered mail. In addition, notifications to the Company may validly be made by e-mail, to be sent to the general e-mail address displayed on the Company’s website, provided however that the original notification is also delivered to Company within seven (7) days thereafter by courier or registered mail.
13 APPLICABLE LAW AND DISPUTE RESOLUTION
13.1 To all offers and contracts Dutch Law applies. Applicability of the United Nations Convention on Contracts for the International Sale of Goods of 1980 is excluded.
13.2 Disputes that have not been resolved within four (4) weeks after a notification thereof by one party to the other party, may be submitted to the competent court of Amsterdam, that shall have exclusive jurisdiction.