General terms and conditions of sale and delivery.
The private company with limited liability Store3D B.V. (hereinafter referred to as: “Store3D”) in Nieuwkuijk, The Netherlands, operates a professional business that, whether or not on a turnkey basis, realises refurbishments of shop premises, including both shell and outfitting activities and the delivery of shop interiors, also shop-in-shop interiors. In addition it provides, usually on a project basis, for the direction of the realisation of new concepts. Any and all activities are performed both in the Netherlands and abroad. Store3D is, on the one hand, hired by businesses and, on the other hand, it relies on businesses during the realisation of activities.
Within the framework of the above Store3D B.V. established the following terms and conditions of sale and delivery (hereinafter referred to as: the “General Delivery Terms and Conditions”).
Article 1. Definitions
- For the purpose of these General Delivery Terms and Conditions the following terms and expressions are defined as follows:
- Client: the other party of the Contractor as well as staff of the Client and a Third Party (Third Parties) relied on by the Client during the implementation of the Agreement.
- Contractor: the private company with limited liability with legal personality under Dutch law Store3D B.V. and/or one of the legal persons affiliated with the same as (fellow) user of these General Delivery Terms and Conditions.
- Parties: the Client and the Contractor.
- Agreement: an obligatory commitment that creates a multilateral legal act between the Client and the Contractor comprising consensus ad idem of the Parties regarding the realisation of a work of a tangible nature as well as the thereto-pertaining delivery of goods and/or the performance of services for the benefit of the Client.
- Delivery: to put one or more goods into the possession of respectively to bring one or more goods under the control of the Client and the potential installation / assembly of the same and/or the performance and the completion of the work to be realised.
Article 2. General
- The General Delivery Terms and Conditions are applicable to each and every proposal, offer and/or agreement between the Contractor and the Client with regard to for instance, but not limited to, the delivery of goods and/or project installations, joinery and shop outfitting and the performance of (assembly) activities in this respect, to which the Contractor declared these terms and conditions applicable.
- Proposals and/or offers are subject to contract and are valid for a period of 30 days calculated from the day of despatch, unless indicated otherwise in the proposal or offer.
- The Contractor cannot be bound by its offers or proposals if the Client must within reason understand that the offers or proposals, or a part thereof, contain a manifest mistake and/or clerical error.
- The Contractor only performs its activities upon applicability of these General Delivery Terms and Conditions. The Contractor does not agree with applicability of terms and conditions applied by the Client, neither if the Client refers to or sends the same, unless stipulated otherwise in writing. Following on from this and where required, the Contractor hereby expressly rejects terms and conditions potentially declared applicable by the Client.
- Agreements between third parties and employees of the Contractor shall not have binding effect on the Contractor to the extent that they were not confirmed by the Contractor in writing or were not immediately implemented.
- Oral contracts and/or orders are carried out in conformity with the notes made and the interpretation of the same by the Contractor.
- Deviations from these terms and conditions only have binding effect between the Parties if they were stipulated in writing by and between the Contractor and the Client.
Article 3. Prices
- Any and all prices mentioned in the proposal, the offer or the agreement are quoted in euros and excluding turnover tax, unless indicated otherwise by the Contractor.
- The Contractor cannot be bound by the prices from its offers, proposals or agreements if the Client must within reason understand that these documents, or a part thereof, contain a manifest mistake and/or clerical error.
Article 4. Delivery
- The period for the performance of the activities and/or the period and/or the date for delivery (completion) mentioned in the agreement provides an indication. The Contractor is entitled to deliver the work in instalments. Outfitting activities can still take place after delivery. Commissioning of the work by the Client prior to the complete delivery is always at the risk and expense of the Client.
- If a time limit was included or stipulated for the performance of certain activities or for the delivery of certain goods then this is never a fatal deadline. In case of an overstepping of a time limit the Client must give the Contractor written notice of default. In this respect the Contractor must be granted a reasonable period of time to yet comply with the agreement in a proper manner.
- If the goods are not taken receipt of by the Client after the expiry of the delivery period then the goods are stored at its disposal and at its risk and expense. These goods are deemed to have been delivered and the payment conditions are equally applicable to these goods. The delivery can, at the discretion of the Contractor, take place all in once or in instalments and the relevant invoices are payable by the Client in accordance with the applicable payment conditions.
- If there is question of a manufacturer’s warranty or a warranty by a third party relied on by the Contractor with regard to the work or the delivered goods then the said warranty prevails over the warranty of the Contractor, unless the Parties stipulate otherwise in writing.
Article 5. Change of and/or addition to the agreement
- If it becomes apparent during the implementation of the agreement that a proper implementation of the same or according to the wishes of the Client requires changing and/or supplementing the agreement then the Parties shall enter into relevant discussions. If the content of the agreement is changed then this may necessarily affect what the Parties had originally agreed on, including an increase or decrease of the contract sum. The Contractor shall, as much as possible, provide a written specification of this. This kind of change may result in a change of the period and/or the date of delivery (completion). The Client accepts the possibility of a change of the agreement as intended in this article.
- In case of a change of or an addition to the agreement the Contractor is authorised to only implement the same if the Client agreed with the same in writing.
Article 6. Obligation to provide information
- The Client is held to make any and all data and options, which are required for the preparation of a proposal and/or offer and/or the implementation of an agreement, available to the Contractor in a timely fashion. The Client warrants the correctness of the said data.
Article 7. Obligation to examine and complain
- Immediately after completion of the work and/or delivery of certain goods and/or services by (or on behalf of) the Contractor the Client is held to examine this on visible defects and to check whether the quality and the quantity of what was delivered correspond with the relevant stipulations and comply with the requirements that the Parties agreed on in connection therewith.
- The Client must inform the Contractor of potential complaints as a result of the inspection as intended in the aforementioned paragraph by registered post within 8 days after detection of the defect. To the extent that complaints are related to goods delivered and/or activities performed by third parties, other than a third party relied on by the Contractor, they shall not be processed. If complaints are submitted later than within the aforementioned time limit then the Client is no longer entitled to repair, replacement or compensation, barring if it regards reliance on a warranty and it falls within the imposed warranty period.
- Potentially detected defects do not entitle to reject the delivered work in its entirety.
- The processing of a complaint is voluntary and does expressly not qualify as acceptance of any liability.
- If a complaint of the Client is deemed to be well-founded then the Contractor exclusively commits to the yet correct delivery of the performance or, at the discretion of the Contractor, to the repayment of the purchase price through crediting up to the amount of the said performance.
- The Client is not authorised to set the amounts payable to the Contractor off against amounts that may on any account whatsoever be payable to the Client by the Contractor.
Article 8. Force majeure
- There is question of force majeure if the Contractor is prevented from implementing the agreement concluded by and between the Parties and/or if the Contractor is hindered in doing so and/or if this is complicated.
- Force majeure does in any case include each and every circumstance that the Contractor could not take into account or could not foresee at the time of the conclusion of the agreement as a result of which the normal implementation of the agreement can within reason not be expected by the Client, e.g. sickness, sabotage, lack of staff, delayed supply or unsuitability of goods, failure to comply by third parties relied on by the Contractor, (power) failure, flooding, earthquake, fire, industrial action, official measures, (issues during) permit applications, transport difficulties and issues at a concerned lessor.
- In case of force majeure the Contractor is entitled to preserve the agreement whilst suspending the obligations of the Contractor for the duration of the force majeure or to rescind the agreement either in whole or in part on account of unforeseen circumstances. In case of force majeure the Contractor shall never be held to pay compensation for damages and/or costs to the Client or be liable for the same.
Article 9. Payment terms
- Unless the Parties stipulate otherwise in writing, the following payment terms apply. The Client pays the Contractor:
- 20% of the stipulated total amount upon conclusion of the agreement;
- 30% of the stipulated total amount upon delivery of the goods for performance of the work at the relevant location and/or destination;
- 45% of the stipulated total amount 4 weeks after the first delivery of the work;
- 5% of the stipulated total amount 8 weeks after the first delivery of the work.
- Payment must take place within 30 days after the date of the invoice, unless stipulated otherwise in writing.
- If payment did not take place within 30 days after the date of the invoice or the stipulated payment term then the Client is in default and liable to pay default interest to the Contractor effective from the day of default equal to 1% per calendar month, calculated on the amount of the invoice or the yet outstanding part thereof.
- Payments made by the Client are always first applied to satisfaction of all payable interest and costs and then to due and payable invoices that have been outstanding for the longest period of time. The latter regardless of the Client indicating that the payment is related to a later invoice.
- From the day that the Client is in default regarding an obligation vis-à-vis the Contractor any and all potential other claims of the Contractor vis-à-vis the Client also immediately fall due.
- A claim of the Contractor vis-à-vis the Client immediately falls due if the latter (a.) is declared bankrupt or was granted suspension of payment, (b.) a relevant petition or application is submitted, (c.) an attachment is imposed on goods of the Client, or (d.) the Client, in case of a natural person, passes away.
- Any setoff by the Client is not allowed and is not binding on third parties.
Article 10. Reservation of title
- Any and all goods delivered by the Contractor remain the property of the same up to the moment that the Client has complied with any and all payment obligations vis-à-vis the Contractor.
- In case of late payment of a claimable amount the Contractor is entitled to, without any notice of default and without any judicial intervention being required, rescind the agreement either in whole or in part and to claim back the goods that are subject to the reservation of title of the Contractor, without prejudice to the right of the Contractor to claim compensation.
Article 11. Liability
- If the Contractor is liable then the said liability shall be limited to the provisions set forth in this article.
- The Contractor shall not be liable for damages, of any nature whatsoever, occurring on account of the fact that the Contractor departed from incorrect and/or incomplete data supplied by or on behalf of the Client.
- If the Contractor is liable then each and every liability shall (always) be limited to the amount that in the relevant instance is paid out by the relevant insurer.
- The Contractor is exclusively liable for direct damages. Direct damages are exclusively understood as the damages to the work itself and reasonable costs for the establishment of the cause and the scope of the damages.
- The Contractor shall never be liable for direct trading losses in the broadest sense of the word, consequential damages, lost profit, (direct or indirect) damages to persons and/or goods, by any name whatsoever, that are the result of the purchase, the use or the possession of goods delivered by the Contractor and the Contractor shall neither be liable for these kinds of damages if there is question of the supply of services and/or the performance of activities with regard to these kinds of goods or if there is question of services in general supplied by the Contractor.
- The Client indemnifies the Contractor against any and all claims of third parties who incur damages in connection with the implementation of the agreement and of which the cause can be attributed to a party other than the Contractor.
Article 12. Limitation periods
- In derogation from the statutory limitation periods, the limitation period for all claims and defences vis-à-vis the Contractor and the third parties relied on by the Contractor for the implementation of an agreement amounts to one year.
Article 13. Miscellaneous
- In case of (assembly) activities to be performed under authority of the Contractor the regulations are part of these General Delivery Terms and Conditions and the text of the regulations must be deemed to be repeated and inserted here.
- The Contractor is authorised to rely on third parties for the implementation of the agreement concluded by and between the Parties and to have them perform activities for the implementation of the said agreement. The Contractor shall not be liable for shortcomings of the said third parties. Potential shortcomings of third parties cannot be attributed to the Contractor.
- If and to the extent that one or more provisions of these General Delivery Terms and Conditions are invalid or nullifiable this shall not affect the validity of the other provisions.
- If multiple provisions, stipulations and/or conditions are applicable to the relationship between the Client and the Contractor then the order of priority shall be as follows: (1.) the project agreement, (2.) the framework agreement, (3.) the present general terms and conditions of the Contractor. Example: the provisions from the project agreement therefore prevail over the provisions from the framework agreement. If an agreement concluded by and between the Parties includes a different order of priority then it shall prevail over the order of priority set forth in this article.
Article 14. Disputes
- Dutch law is exclusively applicable to any and all proposals, offers and agreements of the Contractor.
- The Parties shall make every effort to solve disputes amicably as much as possible.
- Any and all disputes (which are related to agreements) between the Parties to which these terms and conditions are applicable are exclusively settled by the District Court in ‘s-Hertogenbosch.
Store3D B.V. / Contractor, and user of these terms and conditions.