Luxe Tenten B.V., with its registered offices in Emmeloord, the Netherlands
Article 1. General
- These conditions are applicable to all offers, quotations and contracts of any nature entered into between Luxe Tenten B.V. and an Other Party to which Luxe Tenten B.V. has declared these conditions applicable.
- The provisions of these general conditions may be departed from exclusively if and insofar as this has been expressly agreed in writing.
- Where reference is made in these general conditions to „the delivery (of goods)“, this will also be deemed to include the rendering of services and work of any nature whatsoever.
- These conditions are further applicable to all contracts with Luxe Tenten B.V. for the execution of which Luxe Tenten B.V. is required to engage third-parties.
- These general conditions have also been written for the employees of Luxe Tenten B.V. and its management.
- The applicability of any purchasing or other conditions of the Other Party is expressly rejected.
- In the event of one or more provisions of these general conditions becoming invalid or being set aside in full or in part, the remaining provisions of these general conditions shall remain fully applicable. Luxe Tenten B.V. and the Other Party will in that case enter into consultation with a view to making agreement on the substitution of the invalid provisions with new ones that approach as closely as possible the purpose and the tenor of the original provisions.
- In the event of there being a lack of clarity concerning the interpretation of one or more provisions of these general conditions, the provision shall be interpreted in keeping with the spirit of these provisions.
- If a situation not covered by these general conditions arises between the parties, this situation will be judged in keeping with the spirit of these general conditions.
- If Luxe Tenten B.V. does not require strict compliance with these conditions in all cases, this should not be taken to mean that the provisions in that regard are not applicable or that Luxe Tenten B.V. in any way relinquishes the right to require strict compliance with the provisions of these conditions in other cases.
Article 2. Quotations and offers
- All quotations and offers of Luxe Tenten B.V. are subject to contract unless an acceptance period has been stipulated in the quotation. They are not in any way binding to Luxe Tenten B.V. unless express and unequivocal statement to the contrary has been made (in writing) in the quotation itself.
- Designs, drawings, models, samples, descriptions, images and so on, as well as any annexes and documents forming part of or relating to the quotation shall remain, as well any tools made by Luxe Tenten B.V. in this context, the property of Luxe Tenten B.V. and must be returned to Luxe Tenten B.V. on demand and may not be copied and/or issued to third-parties without express written permission.
- A quotation or offer shall be null and void if the product to which the quotation or the offer relates is no longer available in the meantime, without Luxe Tenten B.V. being obliged to pay any compensation for damages.
- Luxe Tenten B.V. cannot be held to its quotations or offers if the Other Party can reasonably be expected to understand that the quotations or offers or a component thereof contain an evident mistake or clerical error.
- In the absence of statement to the contrary, the prices stated in a quotation or offer are exclusive of VAT and, in the absence of express written statement to the contrary, do not include packing, other governmental levies or any other costs incurred in relation to the contract, including travel and accommodation, forwarding and administration.
- In the absence of written agreement to the contrary (by email, fax or ordinary mail) the prices are ex works Luxe Tenten B.V.
- If the acceptance differs (whether or not on minor points) to the quotation or the offer, Luxe Tenten B.V. is not bound to those differing points. In the absence of statement to the contrary by Luxe Tenten B.V., the contract will in that case not be formed in keeping with those differing points.
- A composite price statement does not oblige Luxe Tenten B.V. to perform part of an order at a corresponding proportion of the stated price. Offers and quotations are not automatically applicable to future orders.
- The order placed with Luxe Tenten B.V. constitutes an offer, which will not be deemed to have been accepted until it has been confirmed in writing or by email by Luxe Tenten B.V. (the order confirmation).
Article 3. Agreement
- An agreement will initially be formed once an order placed with Luxe Tenten B.V. has been accepted in writing (by email, fax or ordinary mail) by Luxe Tenten B.V. Approval of the order will also constitute confirmation of the order.
- The order confirmation sent by Luxe Tenten B.V. to the Other Party shall be deemed to fully and accurately reflect the content of the contract. The Other Party will be deemed to have approved the content of this order confirmation unless the Other Party informs Luxe Tenten B.V. in writing within 8 days of the date of the order confirmation that it is not in agreement with that content.
- In the absence of agreement to the contrary, once the order has been confirmed a down-payment of 50% will be made within 8 days of the date of the order confirmation.
- The order will be placed once the down-payment of 50% has been made.
- Any additional agreements and/or undertakings made and/or given by the employees of Luxe Tenten B.V. or made and/or given by other persons acting on behalf of Luxe Tenten B.V. will be binding to Luxe Tenten B.V. only if these agreements and/or undertakings have been confirmed in writing (mail, fax or ordinary mail) by the director of Luxe Tenten B.V. authorized to represent the company.
Article 4. Delivery periods, amendments to the contract and price rises
- he delivery periods given by Luxe Tenten B.V. commence on the date on which the agreement is concluded provided that Luxe Tenten B.V. is in possession of all of the details that Luxe Tenten B.V. needs to implement the order.
- f a period has been agreed or stipulated for the completion of certain work or for the delivery of certain goods, that shall not under any circumstances be regarded as a firm deadline. In the event of a period being exceeded, the Other Party must therefore issue Luxe Tenten B.V. with written notice of default. Luxe Tenten B.V. shall in that case be offered a reasonable period of time in which as yet to implement the contract. In the event of the agreed delivery period being exceeded, Luxe Tenten B.V. cannot be held liable for indirect losses within the meaning of article 10, paragraph 5, of these general conditions.
- In the absence of written agreement to the contrary, delivery and prices are ex works Luxe Tenten B.V. The Other Party is obliged to accept goods at the time at which they are made available to him. If the Other Party refuses to take delivery or fails to provide information or instructions necessary to the delivery, Luxe Tenten B.V. shall be entitled to store the goods at the Other Party’s expense and risk.
- If the Other Party asks for the goods to be delivered in a manner other than that provided for in paragraph 3, Luxe Tenten B.V. will charge the Other Party with the related costs.
- Luxe Tenten B.V. reserves the right to have certain activities carried out by third-parties.
- Luxe Tenten B.V. reserves the right to implement the contract in various phases and to invoice the completed phases separately.
- If it has been agreed that the contract will be executed in stages, Luxe Tenten B.V. reserves the right to suspend execution of the components forming part of a subsequent stage until the Other Party has approved the results of the preceding stage in writing.
- If during the execution of the contract it becomes apparent that it is necessary to make amendments or additions to the contract so that it can be correctly executed, the parties shall adapt or amend the contract under consultation. If the nature, scope or content of the contract is altered, whether or not at the request or on the instructions of the Other Party, the competent authorities, etc., and the contract is thus altered in terms of its quality and/or quantity, this may also have implications for what was originally agreed. The originally agreed price may be increased or reduced for that reason. Luxe Tenten B.V. will give a price indication in advance wherever possible. An amendment to the contract may also result in a change to the originally indicated time of execution. The Other Party accepts the possibility of amendment to the contract, including the change to the price and execution period.
- If the contract is amended, including in the form of an addition, Luxe Tenten B.V. will be entitled to suspend its implementation until the amendment has been approved by Luxe Tenten B.V.’s authorized person and the Other Party has approved the price and other conditions indicated for execution of the contract, including the time at which the contract is to be implemented in that case. Failure to implement the amended agreement or to do so immediately will not constitute a breach of contract on Luxe Tenten B.V.’s part and neither will this constitute a reason for the Other Party to terminate the contract. Without thus being held in default, Luxe Tenten B.V. can refuse a request to have the contract amended if this could have implications in terms of quality and/or quantity for the work or goods to be delivered in that context, for example.
- Ift he Other Party fails to properly meet its obligations to Luxe Tenten B.V., the Other Party will be liable for all losses (including costs) suffered by Luxe Tenten B.V. as a direct or indirect consequence.
- If Luxe Tenten B.V. agrees on a fixed price with the Other Party, Luxe Tenten B.V. shall none the less have the right at all times to increase the price without the Other Party thus gaining the right to dissolve the contract for that reason if the price rise is based on an increase in the price of raw materials, salaries, etc., arising from a legal or regulatory authority or obligation or on other grounds that could not reasonably have been foreseen upon entering into the agreement.
- If the price rise other than as a consequence of a contractual amendment exceeds 10% and is introduced within three months of entering into the contract, the Other Party with a right to invoke the provisions of title 5, part 3 of Book 6 of the Netherlands Civil Code shall have the right to dissolve the contract by means of a written declaration to that effect unless Luxe Tenten B.V. is in that case willing to execute the contract on the basis of what was originally agreed or if the price rise is based on an authority or legal obligation of Luxe Tenten B.V. or if it has been stipulated that delivery will take place longer than three months after the purchase.
Article 5. Suspension, dissolution and premature termination of the contract
- Luxe Tenten B.V. is authorized to suspend compliance with its obligations or to dissolve the contract if:
– the Other Party fails to meet its contractual obligations or meet them in full or on time;
– after entering into the contract, Luxe Tenten B.V. becomes aware of circumstances that give Luxe Tenten B.V. good grounds to presume that the Other Party will not meet its obligations;
– upon entering into the contract the Other Party was required to furnish security for meeting its contractual obligations and has failed to provide that or sufficient security;
– if, owing to a delay on the part of the Other Party, Luxe Tenten B.V. can no longer be required to comply with the contract under the originally agreed conditions.
- Luxe Tenten B.V. is further authorized to dissolve the contract if circumstances arise that are of such a nature that compliance with the contract is no longer possible or if circumstances arise of such a nature that Luxe Tenten B.V. cannot reasonably be expected to maintain the contract in unamended form.
- If the contract is dissolved, the claims of Luxe Tenten B.V. on the Other Party shall become immediately due and payable. If Luxe Tenten B.V. suspends compliance with its obligations, it shall retain its claims by law and under the contract.
- If Luxe Tenten B.V. suspends or dissolves the contract, it will not in any way be obliged to compensate losses and costs, regardless of their cause.
- If the dissolution can be attributed to the Other Party, Luxe Tenten B.V. will be entitled to compensation for the losses, including the costs, directly and indirectly thus caused.
- If the contract is prematurely terminated by Luxe Tenten B.V., Luxe Tenten B.V. will have the work that has yet to be completed transferred to third-parties in consultation with the Other Party. This will not apply if the termination can be attributed to the Other Party. If the transfer of the work causes Luxe Tenten B.V. to incur additional costs, these costs will be charged to the Other Party. The Other Party shall be obliged to pay these costs within the stipulated period unless Luxe Tenten B.V. gives indication to the contrary.
- In the event of liquidation, suspension of payment (or an application to that effect) or bankruptcy, attachment – if and insofar as the attachment is not withdrawn within three months – on the part of the Other Party, or if debt rescheduling or another circumstance as a result of which the Other Party no longer has unfettered access to its assets, Luxe Tenten B.V. will be free to terminate the contract immediately and with direct effect or to cancel the order or agreement without being obliged in any way to
pay any compensation for damages. The claims of Luxe Tenten B.V. on the Other Party will in that case become immediately due and payable.
- If the Other Party cancels a placed order in full or in part, the goods ordered or prepared for that purpose will be charged in full to the Other Party, with the addition of any delivery, removal and supply costs and labor hours reserved for the implementation of the contract unless the order is cancelled within the period provided for in article 3, paragraph 3 of these general conditions.
Article 6. Force majeure
- Luxe Tenten B.V. is not obliged to comply with any obligation to the Other Party if prevented from doing so as a result of a circumstance that is beyond its control and for which they cannot be held accountable by virtue of the law, a juristic act or generally accepted views.
- In these general conditions, force majeure is defined – in addition to that which is deemed as such by law and legal precedent – as all circumstances, foreseen or unforeseen, that are beyond the control of Luxe Tenten B.V. but which prevent Luxe Tenten B.V. from meeting its obligations, including strikes at the company of Luxe Tenten B.V. or third-parties. Luxe Tenten B.V. shall also be entitled to invoke force majeure if the circumstance preventing (further) compliance with the contract occurs after Luxe Tenten B.V. should have met its obligations.
- Force majeure is defined but not exclusively as follows: war, disturbances and hostilities of any nature whatsoever, blockade, boycott, natural disasters, epidemics, lack of commodities, obstruction and interruption of transport facilities, import or export restrictions or bans, hindrances caused by measures, laws or decisions of international, national and regional (governmental) bodies.
- Luxe Tenten B.V. can suspend its contractual obligations during the period of force majeure. If the period of force majeure lasts for longer than two months, either party shall be entitled to dissolve the contract without being obliged to pay any compensation for damages to the other party.
- If Luxe Tenten B.V. has already partly met or will partly meet its contractual obligations when the period of force majeure begins and independent value can be attached to the obligations complied with or to be complied with, Luxe Tenten B.V. reserves the right to separately charge for the obligations already complied with or to be complied with. The Other Party is obliged to pay that invoice as though it were for a separate contract.
Article 7. Payment and debt collection costs
- Payment for the rendering of services will be due within 8 days of the invoice date in a manner indicated by Luxe Tenten B.V. in the currency in which the invoice was written, unless indication to the contrary is given by Luxe Tenten B.V. in writing. Luxe Tenten B.V. has the right to send periodic invoices.
- If the Other Party fails to remit payment of the invoice on time, the Other Party shall be held in default by operation of law. The Other Party will in that case be liable for the payment of 1% monthly interest, unless the statutory interest rate is higher, in which case the statutory interest rate will apply. The interest over the due and payable amount will be calculated from the time at which the Other Party is held in default until the time of full and final settlement.
- Luxe Tenten B.V. reserves the right to have payments made by the Other Party extend first to payment of costs, then to outstanding interest and finally the principal amount and the current interest.
- Luxe Tenten B.V. can refuse a payment offer, without that being in default, if the Other Party indicates a different order of allocation for payment. Luxe Tenten B.V. can refuse full payment of the principal amount if the due and current interest and debt collection costs are not remitted at the same time.
- The Other Party is not under any circumstances entitled to set off the amount that it owes to Luxe Tenten B.V.
- Objections to the amount of the invoice shall not suspend the payment obligation. An Other Party who is not entitled to base an objection of part 6.5.3 (articles 231 to 247 of Book 6 of the Netherlands Civil Code) are not entitled to suspend payment of an invoice for any other reason either.
- If the Other Party defaults or (temporarily) fails to meet any of its obligations, all reasonable costs of obtaining payment without legal recourse shall be for the Other Party’s account. The extrajudicial costs shall be calculated on the basis of normal Dutch debt collection practice, which is currently the calculation method in accordance with the Voorwerk II report. However if Luxe Tenten B.V. has reasonably incurred additional debt collections costs the costs actually incurred will be eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party shall also be liable for the payment of interest over the payable debt collection costs.
- The Other Party is obliged on the first request of Luxe Tenten B.V. to furnish security for compliance with all of its contractual obligations to the satisfaction of Luxe Tenten B.V.
Article 8. Retention of title
- All goods delivered by Luxe Tenten B.V. in the context of the contract will remain Luxe Tenten B.V.’s property until the Other Party has met in full all of its obligations under the contract (or contracts) entered into with Luxe Tenten B.V.
- Goods delivered by Luxe Tenten B.V. that come under the retention of title pursuant to paragraph 1 may not be sold on and may not under any circumstances be used as a means of payment. The Other Party is not authorized to pledge or encumber in any other way the goods covered by retention of title.
- The Other Party shall be required at all times to do all that can reasonably be expected of him to secure Luxe Tenten B.V.’s retention of title.
- In the event of third-parties imposing an attachment on the goods delivered under retention of title or setting out to establish or invoke any rights to them, the Other Party is obliged to notify Luxe Tenten B.V. of that without delay.
- The Other Party undertakes to insure goods delivered under retention of title and to keep them insured against fire, explosion and water damage and against theft and to issue the insurance policy for inspection on Luxe Tenten B.V.’s first request to that effect. In the event of an insurance payout being made, Luxe Tenten B.V. will be entitled to receive the amounts concerned. The Other Party undertakes, where necessary, in advance to Luxe Tenten B.V. to cooperate with all that is or proves to be necessary or desirable in this context.
- In the event of Luxe Tenten B.V. wishing to exercise its property rights as provided for in this article, the Other Party hereby gives unconditional and irrevocable permission, now for then, for Luxe Tenten B.V. or third-parties engaged by Luxe Tenten B.V. to enter the places where the property of Luxe Tenten B.V. is located and to repossess that property.
Article 9. Guarantees, investigation and complaints, prescription period
- With regard to the details, measurements, color fastness and so on laid down in the quotation or forming part of article 2, paragraph 2 of these general conditions and issued by Luxe Tenten B.V., the Other Party must take account of the usual margins and minor modifications in the goods delivered by Luxe Tenten B.V.
- The goods delivered by Luxe Tenten B.V. may therefore differ from the description given in the order confirmation if and insofar as the differences are small differences in measurements and minor modifications. This will not give the Other Party any grounds to dissolve the contract or to claim compensation for damages.
- Complaints of the Other Party relating to defects in the goods that are outwardly perceivable must be communicated by the Other Party in writing to Luxe Tenten B.V. upon delivery but within 8 days of delivery at the latest. The Other Party must carry out a careful inspection.
- Defects that were not outwardly perceivable at the time of delivery and could not have been revealed by a careful and timely inspection must be communicated by the Other Party to Luxe Tenten B.V. in writing within 8 days of these defects being revealed but 12 months at the latest following delivery.
- The guarantee is applicable to articles intended for use in the Netherlands. If the goods are used outside of the Netherlands the Other Party should himself verify whether they are suitable for usage there and meet the conditions set for them there. In that case Luxe Tenten B.V. may set other guarantee and other conditions with regard to the goods to be delivered or work to be carried out.
- The guarantee provided for in paragraph 5 of this article is applicable for a period of 12 months following delivery, unless dictated otherwise by the nature of the delivered goods or the parties have made agreement to the contrary. If the guarantee issued by Luxe Tenten B.V. concerns goods that have been produced by a third-party, the guarantee shall be limited to that issued by the producer of the goods unless statement is made to the contrary.
- All forms of guarantee shall be null and void if a defect has been caused by or arises from inexpert or improper use, incorrect storage or maintenance of the goods by the Other Party and/or by third-parties if, without the written approval of Luxe Tenten B.V., the Other Party or third-parties have made changes to the goods or attempted to do so, or have attached them to other goods to which they should not be attached or if they have been processed or treated other than in the prescribed manner. The Other Party will also not have any claim on the guarantee if the defect is caused by or is the result of circumstances beyond Luxe Tenten B.V.’s control, including weather conditions (such as but not limited to extreme rainfall or temperatures), etc. or has been caused by weathering and/or normal wear and tear.
- The Other Party shall give Luxe Tenten B.V. the opportunity to investigate a complaint (or have this done by others).
- If the Other Party lodges a complaint on time in accordance with paragraph 3 and 4, this will not suspend its payment obligation. The Other Party will in that case also remain obliged to accept and pay for the other goods ordered.
- If a defect is reported at a later date as provided for in paragraph 3 and 4, the Other Party will no longer be entitled to repair, replacement or compensation.
- If it is established that goods are defective and a complaint has been lodged on time, Luxe Tenten B.V. will repair or arrange the repair of the goods or pay compensation instead to the Other Party within a reasonable period following the return of the goods or, if return is not reasonably possible, written notification of the defect by the Other Party, to be decided at Luxe Tenten B.V.’s discretion. In the event of the goods being replaced the Other Party will be obliged to return the replaced
goods to Luxe Tenten B.V. and to transfer their ownership to Luxe Tenten B.V. unless Luxe Tenten B.V. indicates to the contrary.
- If it is established that the complaint is unfounded, the costs thus incurred, including the inspection costs thus incurred by Luxe Tenten B.V., shall be charged in full to the Other Party.
- Following expiry of the guarantee period all costs of repair or replacement, including administrative, shipment and call-out costs, shall be charged to the Other Party.
Article 10. Liability
- In the event of Luxe Tenten B.V. being held liable, that liability shall be limited to the provisions of this clause.
- Luxe Tenten B.V. cannot be held liable for losses of any nature whatsoever caused by Luxe Tenten B.V. assuming incorrect and/or incomplete information provided by or on behalf of the Other Party.
- Luxe Tenten B.V. can be held liable for direct losses only.
- Direct losses are exclusively defined as the reasonable costs involved in establishing the cause and extent of the loss insofar as this relates to losses within the meaning of these conditions, any reasonable costs incurred in having Luxe Tenten B.V.’s faulty performance meet the contractual provisions, insofar as they can be attributed to Luxe Tenten B.V. and reasonable costs incurred for the prevention or limitation of losses, provided that the Other Party demonstrates that these costs have led to the direct loss within the meaning of these general conditions being limited.
- Luxe Tenten B.V. cannot under any circumstances be held liable for indirect losses, including consequential losses, loss of income, missed savings or losses caused by business stagnation.
- If Luxe Tenten B.V. is held liable for any form of loss, the liability of Luxe Tenten B.V. shall be limited to the invoice value or to the part of the order to which the liability relates up to a maximum of € 20,000.
- The liability of Luxe Tenten B.V. will be limited in all cases to the amount paid out by the insurer plus the deductible of Luxe Tenten B.V. in that particular case.
- The limitations of liability set out in these conditions are not applicable in cases where the loss can be attributed to intentional act or omission or gross negligence on the part of Luxe Tenten B.V. or its managerial subordinates.
Article 11. Prescription period
- Contrary to the statutory prescription period, the prescription period for all claims and defences in respect of Luxe Tenten B.V. and third-parties engaged for Luxe Tenten B.V. for the implementation of a contract shall be one year.
Article 12. Transfer of risk
- The risk of loss, damage or decline in value shall transfer to the Other Party as soon as the goods are placed at the disposal of the Other Party.
Article 13. Indemnification
- The Other Party indemnifies Luxe Tenten B.V. against any claims of third-parties who suffer losses related to the implementation of the contract for which a party other than Luxe Tenten B.V. can be held accountable.
- If Luxe Tenten B.V. is held accountable in this respect by third-parties, the Other Party shall be obliged to assist Luxe Tenten B.V. both judicially and extrajudicially and to do all that can be expected of him in that case without delay. If the Other Party fails to take adequate measures, Luxe Tenten B.V. will be entitled to take such measures himself without any notice of default being required. All costs and losses thus suffered by Luxe Tenten B.V. and third-parties shall be fully at the expense and risk of the Other Party.
Article 14. Intellectual property
- Luxe Tenten B.V. reserves the rights and powers assigned to him under the Dutch Copyright Act and other intellectual property laws and regulations. Luxe Tenten B.V. reserves the right to use information received through the implementation of the work for other purposes provided that doing so does not result in confidential information of the Other Party being disclosed to third-parties.
Article 15. Applicable law and disputes
- All legal relationships to which Luxe Tenten B.V. is a party shall be governed exclusively by Dutch law, even if an obligation is implemented in full or in part abroad or if the other party to the legal relationship is domiciled abroad. The applicability of the Vienna Sales Convention is specifically excluded.
- In the absence of mandatory rules of law to the contrary, the court in Lelystad has exclusive competent jurisdiction. None the less, Luxe Tenten B.V. reserves the right to refer the disputes to the court with competent jurisdiction by law.
- The parties shall not refer a matter to court until they have done their utmost to resolve the dispute in mutual consultation.
Article 16. Location and amendment of conditions
- These conditions have been filed at the Chamber of Commerce for Gooi-, Eem- en Flevoland in Almere.
- The most recently filed version or the version that was applicable at the time at which the legal relationship with Luxe Tenten B.V. was formed shall be applicable at all times.
- The Dutch version of the general conditions shall take precedence at all times as regards its interpretation.