General Terms and Conditions of M4FOUR International B.V.
1.1 1. In these General Terms and Conditions the following terms have the meaning as defined, unless otherwise is expressly stated: User: M4FOUR International B.V. Client: the other party in relation to the User. Contract: any contract concluded between User and Client.
2.1 Any offer made by the User will be non-binding until it has been accepted by the Client, unless otherwise is expressly stated in the offer. Acceptance of the offer by the Client will result in a binding Contract. 2.2 Each offer has a period of validity of 14 days maximum after the quotiation has been made.
3 ORDERS AND CONTRACTS
3.1 For concluding the Contract, a deposit of 60% of the agreed price is payable by the User. The Client will receive a deposit invoice to that effect. Once payment of that invoice has been received by the User, the order will be planned for fulfilment (production).
3.2 Notwithstanding the preceding provision, the payment of a deposit can be abandoned, on the understanding that in that case the User may demand reasonable security for the User’s compliance with the payment obligations. If the corporate Client fails to provide the requested security, the User will be entitled to terminate the Contract without becoming liable for compensation as a result.
4 PRICE AND DELIVERY
4.1 Unless otherwise has been expressly agreed, the prices stated in the Contract, offer or order confirmation, do not in any case include the following costs: a. development and design costs; b. costs of modifying file formats that deviate from the required file formats as stated by the User; c. transport costs; d. assembly and installation costs, including the materials, tools and other equipment required for assembly and installation; e. taxes and any charges; f. any other additional costs not explicitly mentioned in the Contract, offer or order confirmation.
4.2 Unless otherwise has been agreed in writing, delivery will be considered to have taken place: a) if the products are collected by or on behalf of the Client: when the products are received; or b) if the products are sent through a professional transport provider: when the products are transferred by that transport provider to the Client.
4.3 The risk of loss of or damage to the products which are the object of the Contract are transferred to the Client at the time of the actual transfer of title to the Client, including a third party appointed by the Client.
4.4 With the exception of products collected by the Client from the User, the User will ensure that the products are insured up to the amount of the selling price. The products will be ensured against the normal transport risk, and therefore not against capture and seizure or other exceptional risks. The User can charge the insurance costs to the Client.
4.5 In the event of damage to the products during transport, the User will be entitled to settle the damage with the insurer. If any damage is identified on delivery of the products, the Client must record the damage on the receipt. If there is no opportunity for identifying any damage to the delivered products on delivery, this must be stated by the Client on the receipt. The Client must report any externally visible damage to the User within two working days, at the risk of forfeiting all rights.
4.6 If the products cannot be sent due to circumstances beyond the User’s control, the User will notify the Client thereof in writing within 6 working days of the planned dispatch date. The products will then be delivered as soon as possible. If delivery in the short term appears impossible in fairness, the Client will have to collect the products at the User’s request within 14 days. In such case, the payment term starts on the date of delivery. If the Client fails to take delivery of the products in good time, the User will be entitled to charge the storage costs incurred within reason for this purpose to the Client, based on a minimum of 10% of the total invoice amount.
5 DELIVERY TERM
5.1 The delivery time stated by the contracted party is approximate only. Unless otherwise determined in the Contract, all the delivery terms and/or dates stated by the User are target dates only and are not binding on the User. When these delivery times or dates are exceeded, the Client will not be entitled to compensation and/or suspension or termination of the Contract.
5.2 When a delivery term has been agreed or stated, this is never a strict deadline.
5.3 The delivery term commences when all the necessary data is in possession of the User, the agreed deposit has been received, and the Client has complied with the other necessary conditions for the fulfilment of the Contract.
5.4 The User is entitled to terminate the Contract if the delivery term planned in the Contract has been exceeded by three months, without being liable to pay damages to the Client.
5.5 The delivery time will be extended by the duration of: a. the period by which payment terms are exceeded; b. the delayed supply of the necessary designs and/or files, which also includes any case where they do not meet the required specifications; c. any other delaying circumstances which because of their nature should be at the Client’s risk.
6 PRICE AND PAYMENT
6.1 Unless otherwise stated, the agreed price is exclusive of VAT and other charges. If the products are delivered elsewhere, the associated costs are payable by the Client, unless otherwise has been agreed.
6.2 Any objections against the invoiced amounts will not suspend the payment obligation. The payment term is a strict deadline. The Client is not entitled to any off-setting or suspension of payments.
6.3 If the Client fails to pay in time, it will be in default without any notice of default being required. The Client will then owe to the User the statutory commercial interest over the outstanding amount and – in derogation of Section 6:96 (4) of the Besluit vergoeding voor buitengerechtelijke incassokosten, i.e. the Dutch Civil Code and the Extrajudicial Collection Costs (Fees) Decree – will own an amount in payment of extrajudicial costs consisting of 15% of the outstanding amount, with a minimum of EUR 150 for each outstanding invoice.
6.4 If the Client defaults with regard to a payment to the User, any other claims of the User against the Client will become immediately due and payable.
6.5 The User may demand an advance payment, a cash payment or other security from the Client with regard to its compliance with its payment obligations. If the Client fails to meet its obligation to pay or provide security as provided for in the previous sentence, Article 16 will apply.
6.6 In the event of the Client’s liquidation, bankruptcy, seizure or suspension of payments, the claims of the User against the Client will become immediately due and payable.
6.7 The User is entitled to apply the payments made by the Client firstly to settle the costs, then the interest that has fallen due and finally the principal and the current interest. The User can refuse a payment offer, without defaulting as a result, if the Client decides on a different order of allocation. The User can refuse full payment of the principal if the interest that has fallen due and the current interest are not paid at the same time.
6.8 The User is entitled at all times to offset any amount the Client owes to it in whatever capacity against any payment to the Client.
7 AMENDMENT OF THE CONTRACT
7.1 If it becomes evident that other or additional activities need to be performed in order to fulfil the Contract properly, the parties will consult with each other as soon as possible and amend the Contract accordingly.
8 FULFILMENT OF THE CONTRACT AND COMPLAINTS
8.1 The User will fulfil the Contract to the best of its knowledge and ability, in accordance with high standards.
8.2 The Client must inspect the products forthwith on delivery and report any defects or damage etc., where occurring, to the User within 2 working days of delivery. Any complaints must be reported by the Client in writing to the User within 5 working days of receipt of the products. If this time has lapsed without any written, specified statement of well-founded complaints, the products will be deemed to have been received in good condition and to have been accepted. The delivered products are also deemed to have been accepted when the Client has sold on all or part of the products, has put them M4FOUR, January 2018 to use or treated or processed them, or has instructed others to do so.
8.3 The Client cannot derive any rights from any images, drawings, descriptions and specifications of dimensions, colours and weights provided by the User in offers, order confirmations, catalogues, prospectuses, etc.
8.4 The Client must carefully inspect the typesetting, printing or other proofs it has received for any errors or flaws.
8.5 The User is not liable for any deviations, errors or flaws which have not been noticed during inspections carried out by the Client.
9 RESERVATION OF TITLE
9.1 The User will reserve ownership of all the products delivered or to be delivered under Contracts until the following cease to exist as a result of payment by the Client: a. the claims regarding the consideration for those products; b. the claims concerning the activities performed or to be performed by the User in implementation of the mentioned Contracts and for the benefit of the Client; c. the claims as a result of the failure to comply with the mentioned Contracts.
9.2 Products are considered not to have been paid if the Client has not provided evidence of payment for that purpose. An extract from the User’s accounts serves as conclusive evidence towards the Client, unless the Client has supplied evidence to the contrary.
9.3 The User is entitled to recover the products delivered under reservation of title if the Client fails to comply with its obligations or the User has well-founded grounds to assume that the Client will fail to comply with its obligations. After the User has recovered the relevant products, it will credit the client for their market value, which will not exceed in any case the original purchase price decreased by the costs involved in their recovery.
9.4 The Client is not authorised to dispose of or encumber the products covered by the reservation of title. The Client may, however, sell and transfer the mentioned products within the context of its normal business operations. This permission is cancelled by operation of law as soon as the Client fails in any manner in terms of the claims to which the reservation of title applies, obtains a provisional suspension of payments, or is declared bankrupt. Under no circumstance may the Client use the products subject to the reservation of title as security for claims from third parties.
9.5 The Client grants to the User a pledge on all the products that are placed under the User’s control within the context of its compliance with the Contract with the User, such as an additional security for anything the Client owes to the User in whatever capacity and for whatever reason, including any non-claimable and provisional debts.
9.6 All products manufactured by the User, such as production resources, semi-finished and auxiliary products and in particular design drawings, models, working and detail drawings, information carriers, computer software, data files, photographic recordings and peripheral equipment, remain the User’s property, even when they are mentioned in the offer, quotation or invoice as a separate item.
10.1 In the event that the Contract is cancelled by the Client, the Client will owe to the User compensation consisting of 60% of what the Client should have paid for the fulfilment of the Contract, unless the parties agreed otherwise when the Contract was concluded. If the damage suffered by the User exceeds the aforementioned percentage, the User is entitled to payment of the full damage by the Client, instead of the mentioned percentage.
11 ADDITIONAL COSTS AND CONTRACT VARIATIONS
11.1 Any costs occurring in connection with the performance or progress of the activities under the Contract and which can be allocated in fairness to the Client are charged by the User to the Client. Contractual variations will be charged fairly by the User.
11.2 Additional work includes: all additional or modified activities not included in the Contract and which are required by the Client or can be considered essential for the correct fulfilment of the Contract.
11.3 Reduced work refers to: any work agreed in the Contract which is not carried out as agreed by both parties. Not included in reduced work is, for example: surfaces that cannot be floored, such as columns and recesses, and cutting kerf.
12 FORCE MAJEURE
12.1 For the purposes of these General Terms and Conditions, force majeure is understood to refer to any circumstance that is beyond the User’s control – even where that circumstance could have been foreseen at the time of the agreement taking effect – which impedes compliance with the Contract permanently or temporarily, as well as – insofar as not yet included therein – war, a risk of war, civil war, terrorist attacks, riots, strikes, transport problems, a fire or any other serious disruption at the company of the User or its suppliers.
12.2 User and Client will warn each other forthwith in the event a case of force majeure occurs.
12.3 In the event of force majeure, the Client cannot make any claim against the User for compliance and/or compensation.
12.4 In the event of force majeure, the parties will try to arrive at an agreement about the fulfilment of the relevant Contract.
13 INTELLECTUAL PROPERTY RIGHTS
13.1 The User reserves the rights and powers it is entitled to under the Copyright Act and other intellectual property legislation and regulations, including patent right, design right, copyright and trademark right. Where such a right can be obtained through filing or registration only, the User will have the sole authority to do so. The Client must abstain in this respect.
13.2 The User is entitled to use information received through the fulfilment of a Contract for other purposes, provided that doing so does not result in confidential information of the Client being disclosed to third parties.
13.3 Drawings, calculations, photocopies, descriptions, models, documents and appendices provided by the User, which are relevant to an offer or Contract, do not form part of this offer or Contract and will remain the User’s full property at all times. They may not be photocopied, disclosed or presented to third parties, publicised or used without express written permission, and must be returned by the Client at the User’s request forthwith.
14 CONFORMITY AND WARRANTY
14.1 Unless otherwise is expressly determined in the Contract, the User does not issue any warranty as regards the delivered products other than the statutory warranty (conformity).
14.2 Insignificant deviations between the delivered work on the one hand and the original design, drawing, copy or model, or the typesetting, printing or other proof on the other, do not constitute a reason for rejection, a discount or termination of the Contract by the Client, and do not give any right to compensation.
14.3 In the event of an assessment of the question of whether or not deviations are to be considered of little significance, a representative sample will be taken from the work, unless an individual case is involved. Deviations which, all circumstances considered, do not, within reason, affect the user value of or do so to a limited degree only, or which from a technical point of view are acceptable according to the usual standards, will always be regarded as deviations of limited significance.
14.4 Deviations in colour within a reasonable margin in comparison with the sample and/or as a result of an abnormality in the wear layer can never constitute a reason for rejections in a physical, structural or aesthetic sense.
14.5 Any sample produced at the Client’s request will be charged for in addition to the agreed price, unless otherwise has been expressly agreed.
15 LIMITATION OF LIABILITY
15.1 If the User is liable towards the Client for any damage, such liability will always be limited as stated in the provisions of this article.
15.2 The User is expressly not liable for intangible and indirect loss, including – but not limited to – consequential loss, loss of income, missed savings or losses caused by business stagnation.
15.3 If the User is liable for direct loss, the liability will be limited to a maximum of the amounts invoiced to the Client in connection with the relevant Contract, unless the User has received a payment from the insurer to cover the relevant damage, in which case the liability towards the Client is limited to a maximum of the amount paid out by the Insurer to the User.
15.4 Direct loss includes only: a. the reasonable costs involved in establishing the cause and extent of the direct loss as referred to in these General Terms and Conditions; b. an amount that equals the reasonable costs to rectify the default, unless such costs of recovery are not in proportion to the loss arising from this; c. any reasonable costs, incurred to prevent or limit damage, insofar as the Client demonstrates that those costs have led to M4FOUR, January 2018 a limitation in the direct loss as described in these General Terms and Conditions.
15.5 The User is not liable for any damage which is the consequence of causes the User was not aware of and could not be expected to be aware of, or which are within the usual production risks, such as the occurrence of discolourations, shrink seams and/or hairline cracks as a consequence of humidity, heat, cold or temperature fluctuations, the composition or inadequate flatness of the subfloor and/or intermediate floor, unless that subfloor or intermediate floor has been fitted by the User.
15.6 The limitations of liability for direct loss set out in these General Terms and Conditions are not applicable in cases where the loss can be attributed to intent or gross negligence on the part of the User or its subordinates.
16 SUSPENSION AND DISSOLUTION
16.1 In the event that the User is unable to fulfil the Contract as a consequence of force majeure, it will be entitled to either suspend fulfilment of the Contract for a period of no more than 6 months or to annul the Contract in full or in part without any court intervention, and without being obliged to pay any compensation.
16.2 Where the Client fails to comply with any obligation arising from the Contract it has concluded with the User, or fails to do so properly or in good time, or where there are good grounds to fear that the Client is not or will not be able to comply with its contractual obligations towards the User, as well as in the event of the bankruptcy, suspension of payments, discontinuation, liquidation or partial transfer – whether or not as a security – of the Client’s company, including the transfer of an important part of its receivables, the User will be entitled, without proof of default or court intervention, either to suspend the fulfilment of each of those Contracts for a maximum of six months, or to terminate said Contracts in full or in part, without the User being obliged to pay any compensation, and without prejudice to any other of its rights.
16.3 During the suspension, the User will be authorised, and at the end thereof it will be obliged, to decide between either the fulfilment or the termination, in full or in part, of the suspended Contract(s).
17 NOTIFICATION REQUIREMENT OF THE CLIENT
17.1 The Client will notify the User forthwith if it becomes aware of the intention of third parties to bring a legal procedure before the court and the claim of the customer(s) is based on the view that the products supplied by the Client do not meet the agreement concluded between the Client and the customer(s) (nonconformity).
18.1 All the purchase prices stated by the User or prices quoted otherwise are exclusive of, and therefore to be increased by, VAT or any other taxes and charges due with regard to the relevant transaction, such as import and export levies.
19.1 The client indemnifies the User against any claims from third parties regarding intellectual property rights on materials or information provided by the Client and which are used in the fulfilment of the Contract.
19.2 If the Client provides information carriers, electronic files or software, etc. to the User, it guarantees that the information carriers, electronic files or software are free from viruses and faults.
20 OPERATION, APPLICABLE LAW AND CHOICE OF FORUM
20.1 These General Terms and Conditions can be amended by the User at any time. The amended General Terms and Conditions will apply to all offers and Contracts that enter into force after the announcement of the amendments of the Client.
20.2 Any disputes between the Client and the User will be submitted to the competent court in the district where the User has its registered office. All Contracts will be governed by the law of the Netherlands.
20.3 If one or more of the provisions in these General Terms and Conditions become invalid or are nullified, the other provisions therein will remain in full force. User and Client will then consult one another in order to agree on new provisions in replacement of the invalid or annulled ones, whereby the purpose and meaning of the original provisions will be adhered to insofar as possible.