Mega Collections B.V.
Article 1 Definitions
Seller : Mega Ceramics B.V., the user of these General Terms and Conditions;
Buyer : the Seller’s counterparty, the customer;
Agreement : the agreement between the Seller and the Buyer.
Article 2 General
2.1 These General Terms and Conditions will apply to every offer and Agreement between the Seller and the Buyer, to the extent that these Terms and Conditions have not expressly been deviated from by the parties in writing.
2.2 Where these Terms and Condition refer to ‘purchase’ and ‘sale’, this should be understood to include the contracting and provision of services, in the broadest sense.
2.3 The current Terms and Conditions will also apply to all Agreements with the Seller for the performance of which the Seller uses the services of third parties.
2.4 Any applicability of the Buyer’s general terms and conditions is expressly excluded, irrespective of whether the Buyer’s term and conditions are presented to the Seller before or after it has presented its Terms and Conditions to the Buyer, unless the parties have agreed otherwise in writing.
2.5 If the Seller concludes Agreements with the Buyer more than once, the present General Terms and Conditions will apply to all subsequent Agreements, irrespective of whether or not same have been explicitly declared applicable.
2.6 If one or more provisions in these General Terms and Conditions prove to be null and void or are nullified or if the Agreement contains provisions deviating from those laid down herein, the remaining provisions of these General Terms and Conditions will continue to apply.
Article 3 Offers/orders/prices
3.1 All offers and quotations, whatever their form, will be without obligation, unless a term for acceptance is stated in the offer.
3.2 Offers will always pertain to products in stock and are subject to the reservation that the products are not sold out.
3.3 Any information or printed materials sent by the Seller to (potential) Buyers will not be binding on it. The Seller will therefore not be obliged to supply products at a price stated in the quotation if this price is based on a typographical or clerical error.
3.4 If a natural person concludes an Agreement on behalf or for the account of another natural person, he/she will be deemed to declare – by signing the order form/order – that he/she is authorised to do so. This person, in addition to the other natural person, will be jointly and severally liable for all obligations ensuing from the Agreement.
3.5 Agreements to which the Seller is a party will not be deemed to have been concluded until the Seller has accepted in writing an order placed by the Buyer or until the actual delivery ex Seller’s warehouse of the sold goods has been effected by the Seller to the Buyer.
3.6 Agreements concluded pursuant to brokering services provided by representatives or agents will not take effect until they have been confirmed in writing by the Seller. If, in such cases, the substance of the Agreement has not been refuted in a substantiated manner within ten days of the written confirmation from the Seller, the Seller’s confirmation will be presumed to contain an accurate description of the Agreement.
3.7 In the event of an oral Agreement, the invoice will be considered to contain a correct and complete representation of the Agreement, unless a complaint is lodged within 14 days of the invoice date.
3.8 The Seller may refuse an order or part of an order or attach conditions to an order without stating its reasons.
3.9 If no Agreement is concluded following the issue of a quotation, the Seller will be entitled to invoice the Buyer for all costs incurred by it. The Buyer should return the quotation issued by the Seller, including any drawings, designs and calculations, to the Seller at first request.
3.10 The prices stated in the offers/catalogues/price lists will be stated on the basis of delivery ex Seller’s warehouse, in euros, and exclusive of Dutch VAT, government levies, shipping costs, freight charges, export levies, insurance costs, loading costs, packaging costs and handling expenses, unless the parties have explicitly agreed on provisions to the contrary.
3.11 The Seller may pass on any price rises after two months, in the event that, between the time of the offer/acceptance and the delivery, a VAT increase or another statutory or cost-price increase of more than 5% has occurred.
3.12 The Seller may also adjust its sales prices if, at the Buyer’s request, its invoice is stated in a currency other than the euro and the exchange rate has changed to the Seller’s detriment during the period between the quotation and invoicing.
3.13 The Seller will be entitled to adjust its prices each year.
3.14 Discounts may only be agreed in writing.
Article 4 Delivery
4.1 The manner of delivery will be determined by the Seller. Delivery will always be effected to the Buyer’s delivery address as most recently communicated to the Seller by the Buyer.
4.2 If the parties have agreed on delivery carriage paid, this means that the agreed price includes the transport of the goods ex Seller’s warehouse to the Buyer’s delivery address. If delivery is effected C.O.D. (Cash on Delivery), the Seller will charge the Buyer C.O.D. charges.
4.3 The Seller will be entitled to charge the Buyer an advance. After payment of the advance has been effected, delivery will be made to the Buyer, unless the parties have agreed otherwise.
4.4 The delivery time will be laid down in the Agreement between the Seller and the Buyer. If the Seller has stated a delivery period or date, same should be presumed to be indicative. A stated delivery date may therefore never be considered a firm deadline.
4.5 The Buyer will be obliged to take delivery of the goods at the time at which the goods are made available to it pursuant to the Agreement, or at the time that the Seller delivers same to it or has same delivered to it by third parties.
4.6 If the Buyer refuses to take delivery or fails to provide information or instructions necessary to effect the delivery, the Seller will be entitled to store the goods at the Buyer’s expense and risk. If the Buyer does not take delivery of the goods within two months, the Seller will be entitled to sell the goods to another party. If it is unable to do so, the Seller will be entitled to destroy the goods. The damage incurred by the Seller in selling the goods to another party or in destroying the goods will be borne by the Buyer.
4.7 In the event of on-call orders for purposes of which the parties have not agreed on any terms, the Seller may demand that the Buyer purchase the goods within a term of no longer than one month.
4.8 If the Seller requires information from the Buyer within the context of the Agreement’s performance, the delivery period will commence after the Buyer has made such information available to the Seller.
4.9 The quantities to be supplied will be subject to a 10% margin.
4.10 The Seller will be entitled to deliver the goods in parts. The Seller will be entitled to invoice partial deliveries separately.
Article 5 Models, illustrations
5.1 The models, illustrations, figures, measurements, weights or descriptions included in offers/advertisements/price lists must be deemed to be a mere indication.
5.2 In the event that the Buyer has been shown a sample or an illustration, the parties must assume that such has been shown as an indication only, unless it has been explicitly agreed that the good to be delivered will be completely identical.
Article 6 Inspections, complaints
6.1 The Buyer will be obliged to inspect the delivered goods, or have others do so, at the time of delivery or transfer. In doing so, the Buyer should inspect whether the quality and quantity of the goods delivered are in accordance with that which was agreed. Any visible defects and deviations must be stated on the consignment note/packing list and reported by telephone within 24 hours, in default of which the goods delivered will be deemed to be sound.
6.2 Any shortfalls must be reported to the Seller in writing within ten days of delivery.
6.3 In the event of any complaints as described above, the Buyer should invite the Seller forthwith, though in any case within the terms stated above, to investigate the relevant complaint.
6.4 Any complaints regarding the invoice must be submitted in writing within 14 days of the invoice date.
6.5 After the expiry of the term within which a complaint may be lodged, the Buyer will be presumed to have approved the goods delivered or the invoice, as appropriate. The signing of a one-off direct debit mandate in respect of the invoice amount will also be considered acknowledgement of receipt of the goods and their approval.
6.6 If a timely complaint is submitted, the Buyer will remain obliged to take delivery of and pay for the purchased goods.
6.7 If the Buyer wishes to return defective goods, it may do so only after obtaining the Seller’s written permission. Return shipments should be effected carriage paid, undamaged and in the original packaging.
6.8 A breakage percentage up to 2% in the products purchased by the Buyer will be for the Buyer’s account and risk. In the event of a breakage percentage exceeding 2%, the percentage exceeding that 2% mark will be for the Seller’s account and risk.
6.9 In addition, the following situations will under no circumstances justify the lodging of a complaint:
- deviations in colour, weight and measurements of less than 10%;
- any typesetting, printer’s or typographical errors in the catalogue, offer or price list;
- any problems relating to colour fastness and washability;
- complaints pertaining to goods that have been processed;
- complaints pertaining to goods that have been used; and
- complaints pertaining to hidden defects.
6.10 If a complaint proves well-founded, the Seller will, at its discretion, repair or replace the goods supplied or credit the relevant invoice by the amount awarded. The Seller’s liability will, however, always be limited in accordance with the provisions laid down in the Article ‘Liability’.
Article 7 Payment
7.1 Payment must be made within 14 days following the invoice date in the manner indicated by the Seller, unless the parties have agreed otherwise. Objections to the amounts stated in invoices will not suspend the relevant payment obligation.
7.2 If delivery is effected on account, the Buyer will be bound by the entries made by the Seller, in the sense that it will be presumed to have acknowledged the entries as being correct unless it submits proof to the contrary.
7.3 If the Buyer fails to make payment within the agreed term, the Buyer will be in default by operation of law. In that event, the Buyer will owe the Seller 1.5% in interest per month or part of a month, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate will apply. The interest on the exigible amount will be calculated from the time that the Buyer is in default until the time of full payment.
7.4 If the Buyer is wound up, its bankruptcy is filed for or it is declared bankrupt, if it is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], if it is placed under guardianship, if it dies, or if the Buyer’s enterprise is transferred or discontinued, attachment is levied against the Buyer or if the Buyer is granted a suspension of payments, provisional or otherwise, the Seller’s claims vis-à-vis the Buyer will become immediately due and payable.
7.5 Payment must be effected to the Seller, unless the Seller has transferred its claim vis-à-vis the Buyer to a third party or has pledged same to a third party. If this is the case, the Seller will send the Buyer a written notification to the effect that it will receive discharge of its payment obligation if it effects payment to that third party.
7.6 Payments will first be used to cover the costs, then to cover any interest due and finally to cover the principal sum and the accrued interest.
Article 8 Collection costs
8.1 If the Buyer is in breach of contract or in default of performance or timely performance of its obligations, all reasonable costs incurred in obtaining extra-judicial payment will be borne by the Buyer. The collection costs will be calculated in accordance with the collection rate recommended by the Netherlands Bar Association [Nederlandse Orde van Advocaten] in collection cases, subject to a EUR 350 minimum.
8.2 If the Seller has incurred higher costs which were reasonably necessary, such costs will also qualify for reimbursement. Any reasonable court costs and enforcement costs will also be borne by the Buyer.
Article 9 Retention of title
9.1 All goods supplied by the Seller will remain the Seller’s property until the Buyer has fulfilled all its obligations ensuing from the Agreements concluded with the Seller.
9.2 In respect of delivered goods the title to which has passed to the Buyer pursuant to payment and which are still in the Buyer’s possession, the Seller hereby reserves rights of pledge as referred to in Section 3:237 of the Dutch Civil Code [Burgerlijk Wetboek] as additional security for any claims other than those referred to in Section 3:92(2) of the Dutch Civil Code, which the Seller may have, on whatever basis, vis-à-vis the Buyer. The Buyer shall render its cooperation, at the Seller’s first request, in the creation of such rights of pledge by having same registered.
9.3 The Buyer will be obliged to ensure that goods delivered under a retention of title are kept with due care and recognisable as the Seller’s property. The Buyer will be obliged to insure the goods, for the duration of the retention of title, against damage caused by fire, explosions and water as well as against theft and shall submit the relevant insurance policies to the Seller for inspection at first request. Any claims the Buyer may have vis-à-vis the insurers of the goods pursuant to the said insurance policies should, as soon as the Seller indicates that it so wishes, be pledged by the Buyer to the Seller in accordance with Section 3:239 of the Dutch Civil Code, as additional security for the Seller’s claims vis-à-vis the Buyer.
9.4 If the Buyer fails in its performance of its payment obligations vis-à-vis the Seller or the Seller has good reason to fear of that it will fail in its performance of those obligations, the Seller will be entitled to recover the goods delivered subject to the retention of title. After such recovery, the Buyer will be credited for the goods’ market value, which may never be higher than the original purchase price, less the costs involved in the recovery.
9.5 The Buyer may not pledge, lease, sell or encumber in any other way the goods covered by the retention of title, unless the parties have agreed otherwise.
9.6 If third parties levy attachment on the goods delivered subject to the retention of title or wish to create or enforce rights in respect of same, the Buyer will be obliged to inform the Seller thereof as soon as possible.
9.7 Goods supplied by the Seller subject to the retention of title pursuant to paragraph 1 of this Article may be sold on only within the context of normal business operations. Under no circumstances may such goods be used as a means of payment, nor may they in any way be issued as security to third parties without the Seller’s permission.
9.8 The Buyer undertakes to refrain from assigning or pledging any claims it may acquire vis-à-vis its customers to third parties without the Seller’s prior written permission. The Buyer also undertakes to pledge such claims, if the Seller indicates that it so wishes, to the Seller in accordance with Section 3:239 of the Dutch Civil Code, as additional security for the Seller’s claims, on whatever basis, vis-à-vis the Buyer.
9.9 The Buyer may agree with a third party that this third party will pay the purchase price for it and is therefore subrogated for it for purposes of the Seller’s claim. If payment is effected by a third party that is subrogated for purposes of the Seller’s claim, the retention of title will not lapse.
9.10 As a result of subrogation referred to in paragraph 9, the Seller will transfer the retained title to the goods for which the third party has paid the purchase price to that subrogated third party.
9.11 The subrogation for purposes of the claim of and transfer of the retention of title to a third party as referred to in paragraphs 9 and 10 will not prejudice the Buyer’s right to hold the Seller liable if the Seller fails in any way in its performance of the Agreements concluded between the parties.
9.12 Should the Seller wish to exercise its retention of title rights as described in this Article, the Buyer hereby grants the Seller or any third parties designated by the Seller its unconditional and irrevocable permission to enter those places where the Seller’s property is located and to recover those goods.
9.13 The Seller’s retention of title will also cover the goods for which the Buyer has paid and any goods, irrespective of whether they have been paid for, which have been processed by the Buyer or third parties in any way. Insofar as necessary, such goods are hereby transferred by the Buyer to the Seller, as security.
9.14 Insofar as the Buyer has transferred the title to the goods, irrespective of whether they have been processed, to third parties and has a claim against these third parties in respect of those goods, it will be obliged, if the Seller so wishes, to transfer the relevant claim to the Seller forthwith, in the context of the security to be provided or the payment to be made to the Seller.
Article 10 Suspension and dissolution
10.1 The Seller will be entitled to suspend performance of its obligations or to dissolve the Agreement in the following events:
- if the Buyer fails to perform the obligations arising from the Agreement or fails to perform them in good time or in full;
- in the event of circumstances of which the Seller has learned following the Agreement’s conclusion that provide good reason for fearing that the Buyer will not perform its obligations, or will not perform such in good time or in full; if there is good reason to fear that the Buyer will only perform its obligations in part or will not perform such properly, suspension will only be permitted to the extent that such is justified by the relevant failure; and
- if, upon the Agreement’s conclusion, the Buyer was requested to provide security for the performance of its obligations arising from same Agreement and such security has not been provided or is insufficient. As soon as security has been provided, the right to suspend performance will lapse, unless the performance has been unreasonably delayed as a result.
10.2 In addition, the Seller will be entitled to dissolve the Agreement or have it dissolved if circumstances arise of such a nature that performance of the Agreement is impossible or can no longer be required pursuant to standards of fairness and reasonableness, or if any other circumstances arise of such a nature that continued unamended maintenance of the Agreement can no longer reasonably be expected.
10.3 If the Agreement is dissolved, the Seller’s claims vis-à-vis the Buyer will become immediately due and payable. If the Seller suspends performance of its obligations, it will retain its claim ensuing from the law and the Agreement.
10.4 The Agreement concluded between the parties will end prematurely, with immediate effect and by operation of law if the other party (Buyer) is declared bankrupt, is granted a suspension of payments, is placed under guardianship, or its business is sold (under execution or otherwise) and proper performance of the obligations ensuing from the Agreement has not been guaranteed, provided that an arrangement has been agreed pursuant to which the rights and obligations provided for in the Agreement concluded between the parties have been transferred to a new other party (Buyer), in consultation with the Seller.
10.5 The Seller will at all times retain the right to claim damages.
Article 11 Cancellation
11.1 If the Buyer wishes to cancel an Agreement after same has been concluded with the Seller and before the Seller has effected delivery to the Buyer, the Buyer will be charged 30% of the order price agreed upon, including Dutch VAT, in cancellation costs, without prejudice to the Seller’s right to full damages, including loss of profit.
11.2 Notice of cancellation must be given in writing.
11.3 Orders for goods purchased especially for the Buyer cannot be cancelled.
11.4 If the Buyer has already paid the Seller the order price, the Buyer will be reimbursed the order price less 30% and the freight charges in the event of cancellation.
Article 12 Warranty
12.1 The goods supplied by the Seller will be in accordance with the requirements and specifications set by Dutch law.
12.2 This warranty will be limited to:
- manufacturing defects, and will therefore not include any damage resulting from wear and tear, improper, negligent or inexpert use or faulty or improper processing, handling, maintenance or storage;
- deliveries to Buyers within the EU;
- replacement of the good; and
- eight days after delivery, unless provisions to the contrary have been agreed.
12.3 This warranty will lapse:
- in the event of adaptations of, alterations to or changes to the delivered good by a Buyer or a third party; or
- in the event of use for a purpose other than that indicated.
12.4 This warranty will in all cases be limited to the manufacturer’s warranty.
12.5 Goods supplied at a reduced price will not be covered by the warranty.
12.6 As long as the Buyer fails to perform its obligations arising from the Agreements concluded between the parties, it cannot invoke this warranty provision.
Article 13 Liability
13.1 The Seller excludes any liability for deliveries made to Buyers outside the EU.
13.2 If the Seller is liable for direct damage, that liability will be limited to the amount paid out by its insurer, or in any event to the invoice amount, or in any event to that part of the invoice to which the liability pertains.
13.3 The Seller will under no circumstances be liable for indirect damage, including consequential damage, loss of turnover and profit, loss of savings and any damage due to an interruption in business operations.
13.4 The Seller will under no circumstances be liable for damage resulting from materials on or in the good that have been declared unfit because of changes in environmental law since the Agreement’s conclusion.
13.5 The Seller will under no circumstances be liable for any deterioration of the good due to improper storage, processing, use or maintenance by the Buyer or a third party.
13.6 The Buyer shall indemnify the Seller against any claims of third parties that may incur damage in connection with the performance of the Agreement and which is attributable to the Buyer.
13.7 The Seller will under no circumstances be liable for damage ensuing from incorrect use of the good, from use that is not in accordance with the instructions for use or from use for a purpose other than that for which the good is intended.
13.8 The Seller will under no circumstances be liable for damage ensuing from any advice given. Advice will always be given on the basis of the facts and circumstances known to the Seller and of mutual consultations, in which respect the Seller will always use the Buyer’s intention as a guideline and starting point.
13.9 The Buyer should ascertain in advance whether the purchased good is suitable for the purpose for which it intends to use same. Should it emerge in retrospect that the purchased good is not suitable for its intended use, then the Seller cannot be held liable for any ensuing damage.
13.10 The limitations of liability with respect to direct damage laid down in these Terms and Conditions will not apply in the event that the damage is attributable to an intentional act or omission or gross negligence on the part of the Seller or its employees.
Article 14 Passing of risk/transport
14.1 The risk relating to the loss of or damage to the goods that are the subject of the Agreement will pass to the Buyer at the time at which these goods are legally and/or factually delivered to the Buyer and therefore come under the Buyer’s control or under the control of a third party designated by the Buyer.
14.2 If the Seller is to provide for the transport/shipment of the goods that are the subject of the Agreement, this will be entirely at the Buyer’s expense and risk, unless the parties have agreed otherwise. The Seller will determine the means of transport.
14.3 The sold goods will only be insured by the Seller, at the Buyer’s expense, if the Buyer has informed the Seller in writing and on time that it wishes it to do so.
Article 15 Force majeure
15.1 Neither party will be obliged to fulfil any obligation if it is prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on its part, and which is also not for its account pursuant to the law, a juristic act or generally prevailing opinion.
15.2 In these General Terms and Conditions, the term ‘force majeure’ must be understood to mean, in addition to its meaning according to the law and in case law, all external causes, foreseen or unforeseen, which the Seller cannot influence, but as a result of which the Seller is unable to perform its obligations. This will include Acts of God, epidemics, wars, government measures, export and import restrictions, strikes at the Seller’s company, transport strikes, traffic congestion, tailbacks, car trouble, theft, fire, power failures and delays in the supply of goods by suppliers.
15.3 The Seller will also be entitled to invoke force majeure if the circumstance preventing performance or further performance arises after the Seller should have performed its obligations.
15.4 The parties may suspend the obligations ensuing from the Agreement while the situation of force majeure lasts. In the event that this period continues for more than two months, either party will be entitled to dissolve the Agreement without being obliged to pay the other party damages.
15.5 Insofar as the Seller has partly performed its obligations under the Agreement or is able to partly perform same at the time that the situation of force majeure first occurs, and that part performed or to be performed has independent value, the Seller will be entitled to invoice the part performed or to be performed separately. The Buyer will be obliged to pay that invoice as if it pertained to a separate Agreement.
Article 16 Copyrights
16.1 Without prejudice to the provisions of these General Terms and Conditions, the Seller reserves the rights and powers vested in it pursuant to the Dutch Copyright Act [Auteurswet].
16.2 All brochures, catalogues, price lists, documents and other materials or electronic or other files will remain the Seller’s property, irrespective of whether same have been made available to the Buyer or to third parties, unless provisions to the contrary have been agreed. Such goods are exclusively intended for the Buyer’s use and may not be reproduced, made public or be brought to the notice of third parties without the Seller’s prior permission, unless the contrary ensues form the nature of the documents provided.
Article 17 Joint and several liability and indivisibility
If several persons are acting as Buyers, they will be jointly and severally bound to the entire Agreement. All obligations under an Agreement covered by these Terms and Conditions will be indivisible.
Article 18 Authentic version
The Dutch-language version of these Terms and Conditions is the only authentic version. In the event of any discrepancy between the Dutch text and a translation, the Dutch text will prevail.
Article 19 Disputes
The competent court in the city or town where the Seller has its registered office will be competent to take cognisance of any disputes between the parties, to the exclusion of all other courts. Nevertheless, the Seller will be entitled to submit any disputes to the competent court according to the law.
Article 20 Applicable law
All Agreements between the Seller and the Buyer will be governed by Dutch law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
Article 21 Filing of these Terms and Conditions
These Terms and Conditions have been filed at the offices of the Chamber of Commerce and Industry for Brabant on 27 februari 2009 under number 18045573.