GENERAL TERMS AND CONDITIONS
of
THE PRIVATE LIMITED LIABILITY COMPANY MONDIAL LIVING B.V.:
(Ch. of Comm. no.: 08155741)
established and having its office on 7556 PD Hengelo, Lintelerweg 30.
Registered on 20 March 2019 with the court registry of the court of Overijssel, hearing location Almelo under number 10/2019.
Article 1 – Definitions
In these General Terms and Conditions, the following terms will have the following meanings:
“consumer”: other party who is a natural person and who does not act in practicing a profession or running a business.
“delivery”: actually making goods to be supplied available to buyer/contracting party.
“written/in writing”: this includes by fax or email.
“Mondial Living”: the private company with limited liability Mondial Living B.V., holder of these General Terms and Conditions.
Article 2 – Applicability of these General Terms and Conditions
These General Terms and Conditions will apply to all legal relations in which Mondial Living acts as seller, supplier of goods or service provider. The applicability of general terms and conditions applied by buyer/contracting party is hereby explicitly denied.
Article 3 – Quotations and formation of an agreement
1. Quotations submitted by Mondial Living are subject to contract. They are valid for a period of thirty days on the date of the quotation, unless stated otherwise. An agreement will only be formed after confirmation in writing by Mondial Living that it has accepted the quotation by buyer/contracting party.
2. Prices stated in the quotation are exclusive of vat unless stated otherwise.
3. Buyer waives his right to terminate or reject the agreement on account of Section 6:227c paragraph 2 Dutch Civil Code, insofar as he acts in practicing a profession or running a business.
Article 4 – Delivery
1. Unless agreed otherwise, delivery will take place FOB (Free on Board), unless agreed otherwise in writing.
2. Buyer will be obligated to take delivery of the purchased goods at the time that these are made available to him. If buyer refuses to take delivery or is negligent in supplying information or instructions that are required for the delivery, the goods will be stored to the risk of buyer. In that case, buyer will be due all additional costs including in each case storage costs and transport costs.
Article 5 – Delivery time
An agreed delivery time is not a fatal term unless expressly agreed otherwise. In case of overdue delivery, buyer must therefore declare Mondial Living in default in writing.
Article 6 – Partial deliveries
Mondial Living is allowed to deliver the sold goods in parts. This does not apply if a partial delivery does not have an independent value. If the goods are delivered in parts, Mondial Living will be authorized to invoice each part separately.
Article 7 – Technical requirements, etc.
All technical requirements imposed by buyer/contracting party to the goods to be supplied that deviate from the normal conditions must expressly be stated by buyer/contracting party on entering into the agreement.
Article 8 – Samples, models and examples
If Mondial Living has shown or provided a model, sample or example, this will always be considered to have been shown or provided as an indication: the properties of the goods to be supplied may deviate from the sample, model or example unless it is expressly stated that these would be supplied in accordance with the shown or provided sample, model or example.
Article 9 – Change in the goods to be supplied
Mondial Living will be authorized to supply goods that deviate from what has been agreed if this concerns changes in the goods to be supplied, the packaging or related documentation that are required to comply with the legal regulations or if this concerns minor changes of the goods that constitute an improvement.
Article 10 – Termination of the agreement
1. The claims of Mondial Living on buyer/contracting party will become immediately due and payable if:
– Mondial Living, after entering into the agreement, has taken note of circumstances that give it good grounds to fear that buyer/contracting party will not fulfil his obligations;
– Mondial Living makes use of its right to request buyer/contracting party to put up security for fulfilment and this security is not put up within the stated term or is insufficient.
In the stated cases Mondial Living will be authorized to suspend further performance of the agreement or to terminate the agreement, such without prejudice to the right to claim compensation of damages.
2. If circumstances occur in relation to persons and/or material that Mondial Living uses or normally makes use of in the performance of the agreement of such a nature that the performance of the agreement becomes impossible or so onerous and/or disproportionally expensive that fulfilment of the obligation under the agreement cannot reasonably be required, Mondial Living will be authorized to terminate the agreement.
Article 11 – Guarantee
1. Mondial Living guarantees that goods it supplies are free from design, material and manufacturing faults during a period of one year after the time of delivery unless another guarantee period has been agreed.
2. If a complaint under the guarantee is considered well-founded by Mondial Living, Mondial Living will only be held, to its own discretion, to supply what is missing, to replace the good to which the complaint relates or to repair the work or to repay the price to buyer/contracting party against return of the goods to which the complaint relates.
3. Mondial Living will only be liable for damage resulting from a defect in the supplied goods in accordance with the provisions of article 17 (Liability).
4. The guarantee lapses in the event that buyer/contracting party causes the damage by incorrect treatment of the good(s) under the guarantee. Incorrect treatment is also understood to mean:
– In the event that others than Mondial Living have carried out repairs or other work on the sold and/or supplied goods without the prior consent in writing by Mondial Living.
5. Not covered by the guarantee are constructions or materials required by buyer/contracting party or materials or partial work supplied by buyer/contracting party or by third parties commissioned by buyer/contracting party unless carried out with the express prior approval in writing by Mondial Living. Any repair work to be carried out by Mondial Living in such cases will be carried out to the account of contracting party unless Mondial Living has given the above-stated approval in writing. The guarantee does not apply to glass and wood discolouring.
Article 12 – Retention of title
1. The goods supplied by Mondial Living will remain the property of Mondial Living until buyer has fulfilled all of the following obligations from all (purchase) agreements with Mondial Living entered into:
– The consideration(s) in respect of the good(s) supplied or to be supplied;
– The consideration(s) in respect of the services carried out or to be carried out by Mondial Living by force of the (purchase) agreements;
– Any claims on account of non-compliance with this/these agreement(s) by buyer/contracting party.
2. The consequences under property law of a good designated for export will be governed by the law of the destination country of the good concerned if the retention of title clause does not become ineffective on the grounds of the law of the destination country until the full price has been paid, unless Mondial Living determines otherwise.
3. Goods delivered by Mondial Living that are subject to the retention of title by force of paragraph 1, may only be resold within the framework of normal business operations. Buyer will not be authorized to pledge the goods or to attach any other right to the goods.
4. With respect to delivered goods that have become the property of buyer by payment and that are still in the hands of buyer, Mondial Living hereby reserves the rights of pledge as referred to in Section 3:237 Dutch Civil Code as additional security for claims, other than the ones stated in paragraph 1 of this article that Mondial Living may have for any reason whatsoever against buyer. The authority included in this paragraph will also apply with regard to goods supplied by Mondial Living that have been processed or treated by buyer as a result of which Mondial Living has lost its retention of title.
5. If buyer does not meet his obligations or there is reasonable fear that he will not do so, Mondial Living will have the right to remove the supplied goods that are subject to the retention of title referred to in paragraph 1 from buyer or third parties that keep the good on behalf of buyer or to have these removed. Buyer will be under the obligation to cooperate, enforceable by a penalty of 10% of what buyer is due per day.
6. If third parties want to attach any right to goods supplied subject to retention of title or want to exercise such rights, buyer will be under the obligation to inform Mondial Living thereof as soon as reasonably may be expected.
7. At the first request thereto by Mondial Living, buyer undertakes:
– To insure all goods supplied subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make an insurance policy available for inspection;
– To pledge all claims of buyer on insurers on the goods supplied subject to retention of title to Mondial Living in the manner as laid down in Section 3:239 Dutch Civil Code;
– To pledge all claims buyer will have on his customers on reselling the goods supplied by Mondial Living subject to retention of title to Mondial Living in the manner as laid down in Section 3:239 Dutch Civil Code;
– To label the goods supplied subject to retention of title as property of Mondial Living;
– To cooperate in other ways with all reasonable measures that Mondial Living wants to take to protect its ownership right with regard to the goods and that do not hinder buyer unreasonably in the ordinary course of his business.
Article 13 – Defects; time limits for lodging a compliant
1. Buyer must inspect (have inspected) the purchased goods on delivery or as soon as possible thereafter. Hereby, buyer needs to ensure that the delivery complies with the agreement, i.e.:
– If the proper goods have been delivered;
– If the delivered goods comply with the agreement in terms of quantity (e.g. the number and amount);
– If the delivered goods meet the agreed quality requirements or – if these are absent – the requirements that can be set for ordinary use and/or commercial purposes.
2. If visible defects or shortages are noted, the buyer must report these in writing to Mondial Living within seven days after delivery.
3. Buyer must report not visible defects to Mondial Living in writing within seven days after discovery but within one year after delivery at the latest date.
4. Complaints lodged in time by the buyer do not affect buyer’s obligation to pay for and to take off the goods to be supplied. Goods may only be returned to Mondial Living after Mondial Living’s permission in writing.
Article 14 – Price increase
If Mondial Living agrees a certain price with buyer, Mondial Living will nevertheless have the right to increase that price unless buyer is a consumer. Among others but without any limitation as a result of exchange rate fluctuations, alterations of regulations of authorities, increase of raw material prices or other causes, Mondial Living may increase the price of the goods to be supplied. Also with the price applicable at delivery, Mondial Living may charge the price list that is applicable in its opinion. If the price increase is higher than 10%, buyer will be entitled to terminate the agreement.
Article 15 – Payment
1. Mondial Living will have the right to invoice in instalments.
2. Payment must be effected within one day after the delivery of the goods unless agreed otherwise. After expiry of this term, buyer will be in default; as from the time that buyer is in default, he will be due the legal commercial interest on the amount due, pursuant to Section 6:119a Dutch Civil Code. If buyer/contracting party is a consumer, the legal interest will apply as referred to in Section 6:119 Dutch Civil Code.
3. In the event of liquidation, bankruptcy or suspension of payment of buyer/contracting party or when the legal debt restructuring arrangement has been declared applicable with respect to buyer/contracting party, all amounts due by buyer/contracting party will immediately become due and payable.
4. Payment effected by buyer/contracting party will serve in the first place as fulfilment of all interest and costs due and secondly as payment of all invoices due that are payable for the longest time, even if buyer/contracting party states that the payment refers to an invoice of a later date.
5. Payment needs to be effected without any discount or settlement.
Article 16 – Collection costs
1. If buyer/contracting party does not or not timely meet any of his obligations, in addition to the agreed price and costs, all out of court collection costs will be to the account of buyer/contracting party, including all costs for drawing up and sending demands, making a settlement proposal and acquiring information.
2. With respect to Mondial Living, buyer/contracting party will be due all court costs incurred by Mondial Living in all instances, with the exception of insofar as buyer/contracting party demonstrates that these are unreasonably high. This will only apply if Mondial Living and buyer/contracting party conduct legal proceedings in respect of an agreement to which these General Terms and Conditions apply and a court decision becomes final and binding whereby buyer/contracting party is fully or mainly put in the wrong.
Article 17 – – Liability
1. For defects in supplied goods, the guarantee will apply as laid down in article 11 (Guarantee) of these General Terms and Conditions.
2. All other liability than the liability referred to in paragraph 1 will be limited to the amount paid by the insurer. If Mondial Living’s insurance does not offer any cover in a case or does not pay out, the liability will be limited to the invoice value of the goods sold/supplied. Mondial Living will not be liable for any personal injury and/or subsequent costs.
3. The above limitations will not apply when the damage is due to intent or wilful recklessness of Mondial Living or its company management.
4. Liability will be subject to the statutory rules.
Article 18 – Force majeure
1. Force majeure will mean conditions that impede the fulfilment of the agreement and that may not be attributed to Mondial Living. These (insofar as these make compliance impossible or hinder compliance unreasonably) will include: strikes in other businesses than Mondial Living’s, wildcat strikes or political strikes in Mondial Living’s business, excessive sickness absence of (an) employee(s) of Mondial Living or its company management; a general lack of required raw materials and other goods or services that are needed to realize the agreed performance; unforeseeable stagnation with suppliers and other third parties on which Mondial Living depends and general transport problems.
2. Mondial Living will also have the right to invoke force majeure if the circumstance that prevents (further) compliance, comes into being after Mondial Living had to meet its obligation.
3. During force majeure, the obligations to deliver of Mondial Living will be suspended. If the period in which fulfilment of the obligations of Mondial Living is not possible, is longer than three months, both parties will be authorized to terminate the agreement without any obligation to compensation of damages.
4. If Mondial Living, when the situation of force majeure comes into force, has already partly fulfilled its obligations, or can only partly fulfil its obligations, it will have the right to invoice what has already been supplied and/or the part that can be supplied and buyer/contracting party will be held to pay this invoice as if it concerned a separate contract. However, this does not apply when the already supplied part or the part to be supplied has no independent value.
Article 19 – Dispute settlement
1. The court in Almelo will exclusively be authorized to hear all disputes that may arise between Mondial Living and buyer/contracting party. However, Mondial Living will remain authorized to summon buyer/contracting party to appear before the competent court of the place of residence of buyer/contracting party.
2. In the event that buyer/contracting party is a consumer or if in his business or practice (including buyer/contracting party himself) three persons or less are employed, by law buyer/contracting party will have one month after Mondial Living has invoked this provision in writing, to choose for settlement of the dispute before the competent civil court.
Article 20 – Governing law
Any agreement between Mondial Living and buyer/contracting party is governed by Dutch law.
Article 21 – Amendment of the General Terms and Conditions
1. Mondial Living is authorized to alter these General Terms and Conditions. These changes will take effect at the stated date of entry into force.
2. Mondial Living will send the amended General Terms and Conditions to buyer/contracting party. If no time of entry into force is stated, the changes will take effect with respect to buyer/contracting party as soon as the change has been notified to him.
