General Conditions of Sale and Delivery (“Conditions of Sale”) of M&OTTO DESIGN B.V.
Article 1 Definitions
1.1 In these Conditions of Sale the following terms shall be defined as follows: – M&OTTO DESIGN: M&OTTO DESIGN B.V.; – the Customer(s): the buyer(s) or any other party contracting with M&OTTO DESIGN; – the Agreement: any purchase and sales agreement to which M&OTTO DESIGN is a party as the seller/supplier; – Delivery/Deliver(ed): Ex Works; Goods are delivered at the moment they are placed at the Customer’s disposal, either at the producer’s premises or at M&OTTO DESIGN’s warehouse, as set out in sections 6.1 and 6.2.
Article 2 General
2.1 These Conditions of Sale govern all offers and Agreements between M&OTTO DESIGN and the Customer. Variations to these Conditions of Sale shall only be possible if and insofar as M&OTTO DESIGN has expressly agreed to such variations in writing.
2.2 The applicability of any and all of the Customer’s terms and conditions is expressly excluded.
2.3 Should at any time one or more of provisions of these Conditions of Sale be declared null and void or otherwise not binding by a Court, the remaining Conditions of Sale shall preserve their full effect at all times. In that case M&OTTO DESIGN and the Customer shall undertake to enter into negotiations in order to agree on replacing stipulations which approach the parties’ purpose and intent of the original provisions as much as possible.
2.4 In case of differences between the English text of these Conditions of Sale and versions of these Conditions of Sale in other languages, the English text shall prevail.
2.5 The most recent version in force at the time the Agreement was concluded will apply at all times.
Article 3 Offers
3.1 All offers from M&OTTO DESIGN are without obligation, unless otherwise specified in writing.
3.2 An Agreement is realized EITHER after M&OTTO DESIGN has confirmed, in writing, an offer accepted by the Customer as an order OR after M&OTTO DESIGN has confirmed, in writing, an order placed by the Customer or has commenced to carry out the order.
3.3 In the event that the agreed prices, discounts or Delivery time are based on an apparent error, M&OTTO DESIGN shall have the right to correct these errors or to cancel the order. In that case, the Customer shall have these same rights.
Article 4 Price and payment
4.1 All quoted prices are exclusive of VAT and other government levies, as well as any costs incurred in connection with the Agreement, such as administrative costs, transport, insurance premiums and COD charges.
4.2 In the event that an additional discount is agreed for the purchase of an order of a certain quantity or volume, M&OTTO DESIGN is not obliged to deliver a smaller quantity or different goods under this same additional discount.
4.3 If the Customer has not paid the invoice within strictly 30 days NETT, any subsequent orders shall solely be carried out on the basis of ADVANCE PAYMENT.
4.4 If the invoice amount is not credited to M&OTTO DESIGN’s account within the payment term, the Customer shall automatically be in default without any further notice being required. In that case an interest for late payment is due of 1% per month or part of a month, or the legal interest in force in The Netherlands, whichever is higher.
4.5 In case of extra-judicial collection of amounts due, any and all collection costs will be entirely borne by the Customer; these collection costs are fixed at 10% of the principal sum due, with a minimum of € 250.-.
4.6 In case of judicial collection, any and all legal expenses, including those incurred for legal advice, both judicially and extrajudicially, as well as enforcement costs, shall be for the Customer’s account.
4.7 In the event that less goods were Delivered in a good condition than invoiced, the Customer will at all times owe the amount that corresponds to the part of the goods that was Delivered in undamaged condition.
Article 5 Cancellation of orders
5.1 Unless stated otherwise, an order can be cancelled or modified, at the latest, within 2 (two) working days after M&OTTO DESIGN confirmed the order.
5.2 In all other cases, an order cannot be cancelled without M&OTTO DESIGN’s explicit consent.
5.3 In the event that M&OTTO DESIGN cooperates with the total or partial cancellation or modification of an order, M&OTTO DESIGN may demand financial compensation for such cooperation.
5.4 If costs have already been incurred for the purpose of the performance of the Agreement and M&OTTO DESIGN agrees to the total or partial cancellation or modification of an order, the Customer is obliged to pay these costs to M&OTTO DESIGN at the latter´s first request.
Article 6 Delivery and risk
6.1 Unless otherwise explicitly agreed in writing by M&OTTO DESIGN, Delivery shall be made Ex Works producer or Ex Works warehouse of M&OTTO DESIGN in accordance with the Incoterms 2010.
6.2 The Customer shall, at its own risk and for its own account, insure the goods against the risk of loss or damage to the goods during the transport, including loading and storage, which insurance shall be taken out for the benefit of both the Customer and M&OTTO DESIGN. At M&OTTO DESIGN’s first request the Customer will supply M&OTTO DESIGN with a copy of the insurance policy.
6.3 The Customer is required to take Delivery of the goods at the moment they are Delivered to the Customer by or on behalf of M&OTTO DESIGN.
6.4 In the event that the Customer rejects Delivery of the goods or is negligent in the provision of information or instructions necessary for Delivery, M&OTTO DESIGN is entitled to store the goods at the Customer’s account and risk.
6.5 A stated Delivery time is always indicative and is never a strict deadline. After the Delivery date is exceeded, the Customer is still obliged to take purchased, unless in the meantime the Customer has served M&OTTO DESIGN with a notice of default, providing M&OTTO DESIGN with a reasonable period in which to Deliver, and this period also has expired.
6.6 M&OTTO DESIGN is entitled to Deliver the goods in parts and, hence, to separately invoice the goods so Delivered.
6.7 In case a pre-payment invoice has not been paid, M&OTTO DESIGN shall be entitled to terminate the Agreement or to demand payment under the Agreement. In the latter case, M&OTTO DESIGN is entitled to adjust the previously agreed price to any price increases that have occurred in the meantime. For the duration of non-payment, M&OTTO DESIGN’s Delivery obligation shall be suspended for the same period of time.
6.8 Upon taking Delivery of the goods, the Customer/carrier is required to check the condition of the packaging. If it finds the packaging to be defective, it is obliged to make a remark about the defect or defects on the consignment note (f.i. CMR waybill etc.). However, in case the packaging shows serious defects, including, but not limited to, cracks, tears or water damage, the Customer/carrier shall reject the goods in question.
Article 7 Discrepancies, complaints, returns
7.1 Parts of the goods are handmade, for instance knotted and/or woven by hand. Therefore, depending on the material of which they are made, the product may show small discrepancies in its shape, stitching and color. Also in case of such discrepancies, M&OTTO DESIGN shall be deemed to have complied with its Delivery obligations.
7.2 Subject to the Customer’s obligations under section 6.8, if the goods were not Delivered in good condition, or in the Customer’s opinion the received goods do not comply with the order, or not all ordered goods were Delivered, the Customer is obliged to inform M&OTTO DESIGN thereof by e-mail immediately or, at the latest, within 5 (five) working days after the date of receipt of the goods from the carrier. Complaints filed after this term shall not be accepted by M&OTTO DESIGN, at which point the goods are deemed to be accepted by the Customer. If the Customer files a complaint, such a complaint must include as clear a description of the default as possible and must be accompanied by a digital photograph.
7.3 Any other complaints regarding the quality of the product must be submitted to M&OTTO DESIGN by e-mail within 6 (six) months following the day on which the goods were Delivered. Such a complaint must include as clear a description of the default as possible and must be accompanied by a digital photograph.
7.4 After lapse of the terms mentioned in the sections above, any right to complain shall expire.
7.5 A complaint is not justified if the goods have not been used in accordance with the instructions for use, if they have been used improperly, if they have not been used for the purpose for which they were intended or if the damage is caused by the Customer’s or a third party’s carelessness.
7.6 If M&OTTO DESIGN considerers the complaint to be justified, M&OTTO DESIGN may either choose to terminate the Agreement as regards the defective goods and credit the Customer or choose to replace the defective goods by the same goods or to repair them.
7.7 Goods that are the subject of a complaint may only be returned by the Customer to M&OTTO DESIGN after prior written notification that it wishes the goods to be returned. In the latter case, the goods shall be returned to M&OTTO DESIGN as soon as possible. If the goods are not received back within 14 (fourteen) days after a request from M&OTTO DESIGN to that effect, it is assumed that the Customer wishes to keep the Goods and has withdrawn its complaint. In that case, the Customer will owe the full purchase price for the goods.
7.8 If, as a result of a justified complaint, M&OTTO DESIGN has replaced or repaired the defective goods, M&OTTO DESIGN is deemed to have Delivered the goods on time, even if this replacement resulted in the expiration of a strict deadline set by the Customer.
7.9 With regard to the handling of complaints, the Customer shall act in accordance with M&OTTO DESIGN’s instructions, which will be sent to the Customer by e-mail.
Article 8 Suspension and termination
8.1 M&OTTO DESIGN is entitled to totally or partially suspend its obligations under any Agreement or terminate the Agreement if: – the Customer fails to (fully) meet its obligations under previous Agreements or if its performance thereof is delayed; – after conclusion of the Agreement M&OTTO DESIGN has good reasons to fear that the Customer will not (be able to) fulfill its obligations towards M&OTTO DESIGN, in particular with regard to its payment obligations; – upon entering into the Agreement the Customer was requested to provide security, and such security is not provided or is inadequate; – the Customer has a bankruptcy petition presented against it; – the Customer applies for a suspension of payments; – a sequestration order or other prejudgment measures are imposed upon the Customer; – the Customer acts in such a way that M&OTTO DESIGN cannot reasonably be expected to perform or continue the Agreement.
8.2 If due to delay on the part of the Customer it can no longer be expected from M&OTTO DESIGN that it will fulfil its obligations under the Agreement under the conditions that were originally agreed, M&OTTO DESIGN shall be entitled to terminate the Agreement.
8.3 Furthermore, M&OTTO DESIGN is allowed to terminate the Agreement if circumstances arise, of such a nature that, with regard to standards of reasonableness and fairness, (unchanged) performance of the Agreement can no longer be required of it.
8.4 If the cause of the termination is within the scope of risk of the Customer, or is caused by any act or omission of the Customer, M&OTTO DESIGN is entitled to claim the costs it incurred and any loss of profits.
Article 9 Liability
9.1 M&OTTO DESIGN accepts liability for damage sustained by a third party to the extent that the liability ensues from the Product Liability Act (Section 6.3.3 Dutch Civil Code) and up to the maxima based on this Act.
9.2 Other damage than or any damage exceeding the provisions in the previous paragraph will not be accepted by M&OTTO DESIGN, unless the Customer proves that the damage is due to the intent or gross negligence of the management of M&OTTO DESIGN. In the event that M&OTTO DESIGN is liable on the grounds referred to above, liability for loss of profit and consequential loss is expressly excluded.
9.3 In any case, M&OTTO DESIGN’s liability is always limited to the amount of the invoice value of the product or products that resulted in the damage, or to the maximum of the amount paid by the insurer to M&OTTO DESIGN for the damage in question, whichever amount is the lowest. Any further liability is expressly excluded.
9.4 M&OTTO DESIGN shall never be liable for any indirect damages, including, but not limited to, loss of profit, consequential loss, trading loss and/or immaterial loss of any nature whatsoever resulting from non- Delivery or late Delivery.
9.5 M&OTTO DESIGN shall never be liable for any damages arising from a situation of force majeure, as defined in section 11.2.
9.6 M&OTTO DESIGN shall never be liable for any damages if the goods have not been used in accordance with the instructions for use, if they have been used improperly, if they have not been used for the purpose for which they were intended or if the defect is caused by the Customer’s or a third party’s carelessness, as set out in section 7.5. The Customer will also indemnify M&OTTO DESIGN from any such claims by third parties.
Article 10 Limitation period
10.1 Any claims of the Customer will automatically expire after a period of 6 (six) months, unless the claim has been submitted to the competent Court before lapse of this period.
10.2 The limitation period shall begin to run on the day following the day on which the goods were Delivered to the Customer by or on behalf of M&OTTO DESIGN.
Article 11 Force majeure
11.1 In case of force majeure all obligations of M&OTTO DESIGN are suspended until the situation of force majeure ends. In the event that the situation of force majeure lasts longer than eight full weeks, each of the parties will be entitled to terminate the Agreement, without any obligation to pay damages to the other party.
11.2 Force majeure shall be understood to mean circumstances under which M&OTTO DESIGN cannot reasonably be expected to meet its obligations under the Agreement. Apart from situations defined as force majeure situations in the relevant legal provisions and case law, a situation of force majeure in these Conditions of Sale will also include, but not be limited to, extreme price increases, natural disasters and war or conflict situations, strikes and/or work stoppages, weather conditions, lack of means of transport, import and export bans, government measures and/or regulations that prevent, delay, or otherwise interfere with the fulfilment of obligations and nondelivery or late delivery by the suppliers of M&OTTO DESIGN.
11.3 M&OTTO DESIGN also has the right to invoke force majeure if the situation of force majeure arises after M&OTTO DESIGN was supposed to fulfil its obligation.
11.4 To the extent that M&OTTO DESIGN had already fulfilled part of its obligations under the Agreement or will still be able to do so, M&OTTO DESIGN is entitled to invoice the part that has been or will be fulfilled. In that case, the Customer shall pay the invoice as if it related to a separate Agreement.
Article 12 Retention of title
12.1 All goods delivered by or on behalf of M&OTTO DESIGN remain property of M&OTTO DESIGN until the Customer has completely fulfilled all of its obligations towards M&OTTO DESIGN. As long as any invoice, including interest and costs, remains (partly) unpaid, M&OTTO DESIGN also retains title in all goods previously delivered, even if they have been paid for by the Customer.
12.2 Goods delivered by or on behalf of M&OTTO DESIGN in which M&OTTO DESIGN has retained title may only be sold on by the Customer within the context of normal business operations.
12.3 The Customer is not entitled to process, pledge or otherwise encumber the goods in which M&OTTO DESIGN has retained title.
12.4 The Customer shall allow M&OTTO DESIGN access to its premises to verify that the obligations under sections 12.2 and 12.3 are being complied with.
12.5 In the event that any goods subject to the retention of title are attached by third parties, the Customer is obliged to inform this third party of the retention of title and to notify M&OTTO DESIGN of the attachment without delay.
12.6 The Customer is obliged to insure all goods delivered by or on behalf of M&OTTO DESIGN under retention of title and to keep them insured against fire, damage caused by explosion or water, and against theft. At M&OTTO DESIGN’s first request the Customer will supply M&OTTO DESIGN with a copy of the insurance policy. At M&OTTO DESIGN’s first request the Customer will ensure that the rights under the insurance policy, insofar as these relate to the goods subject to the retention of title, are transferred to M&OTTO DESIGN or that M&OTTO DESIGN shall subrogate to these rights.
Article 13 Intellectual property and copyright
13.1 M&OTTO DESIGN reserves the rights and powers vested in it under the Copyright Act and other industrial and intellectual laws and regulations.
13.2 The Customer shall not have goods delivered by M&OTTO DESIGN copied somewhere else or have imitations manufactured that only differ from these goods on minor points, nor shall the Customer be directly or indirectly involved in such activities.
Article 14 Applicable law / disputes
14.1 All Agreements are governed by the law of The Netherlands.
14.2 The Court of Amsterdam shall have exclusive jurisdiction to deal with any dispute which has arisen or may arise out of, or in connection with, this Agreement.