Cutwork – General Furniture Sales Conditions

Article 1. Definitions

In these GTCGSC the following definitions shall have the meaning set out below:

• Agreement: the agreement concluded (which includes any annexes and other documents that correspond to such agreement) between the Buyer and the Seller regarding the Order;

• Delivery: the delivery of product(s) as sold to the Buyer under the Agreement;

• Order: the specific products ordered by the Buyer from the Seller;

• Buyer: the party with whom the Seller is negotiating, or has concluded, an Agreement;

• Seller: Cutwork B.V.;

• Warranty Period: a period of twelve (12) months following Delivery.

Article 2. Applicability

1. These GTCGSC are applicable to all offers, purchase orders, order confirmations, and other (similar) legal acts of the Seller and all future agreements that may result therefrom, whenever and insofar as the Seller acts as a seller of goods.

2. Deviation from and/or supplements to the GTCGSC must be made explicitly and can only be agreed on in writing.

3. If the contents of an Agreement deviates from the contents of the GTCGSC, the contents of the Agreement shall prevail with regard to Order governed by that Agreement.

4. The applicability of general terms and conditions of the Buyer, regardless of their name, is explicitly precluded.

Article 3. Agreements

1. Any offer made by the Seller is without obligation.

2. An Agreement shall (only) be concluded in writing, which may take place either:

a) by the return of an order form or agreement to the Seller that was signed by the authorized representative of the Buyer; or

b) if the Buyer has made a (down) payment, implying that the Buyer has accepted the terms and conditions of a proposed Agreement with applicability of the GTCGSC.

Article 4. Price

1. Prices are exclusive of VAT, packaging, and may be subject to indexation.. Cost of transport is not included and shall bein individual goods and if applicable will be included as a separate line item in the Agreement or invoiced separately if applicable..

2. The Buyer is responsible for all taxes and duties associated with the Delivery.

3. The Seller may pass on to the Buyer any increase in costing factors that occurs after the Agreement is concluded.

Article 5. Payment

1. The standard payment schedule (unless otherwise stated in the Agreement) shall be as follows:

   · 40% due upon issue of approved initial invoice, before which production and commencement of applicable lead time will not start (as stated in article 9.2).
   · 30% due before release of first shipment.
   · 30% due within 30 days of final delivery.

2. The term of payment of an individual invoice is thirty (30) days after receipt of such invoice by the Seller, unless agreed otherwise in the payment schedule.

3. If the PurchaserBuyer does not pay in accordance with the agreed payment schedule, the Buyer shall pay a penalty equal to: (V * L / 500 ) * L,), whereby ‘V’ is the amount of payment that is overdue and ‘L’ is the number of calendar days by which payment exceeded the agreed time schedule. This penalty is due immediately, may be set-off against any payment due to the Buyer and is without prejudice to the Seller’s right to recover the actual damages.

Article 6. Goods sold

1. Goods delivered by the Seller may require further assembly before use, which assembly is for the expense and risk of the Buyer. Consumables, including but not limited to screws and light bulbs, that may be necessary for the proper installation, function, or usage of the goods delivered are not included.

2. If and insofar as any documents corresponding to an Agreement show design previews that show, for visual purposes, goods such as vases, flowers, plants, books, pens, et cetera, those goods are not included in any Order, unless expressly listed.

Article 7. Warranty

1. The standard Warranty Period offered (unless otherwise specified in an Agreement) will be one (1) year from date of purchase.

2. At any time within Warranty Period after Delivery and subject to the procedure in article 8.2 below, Seller will, at its discretion, repair or replace free of charge any defective parts of goods delivered, provided that the defects:
   
   (a) are covered by a manufacturing warranty, in which case the procedure set out between the Seller and the manufacturer will be followed in order to repair or replace the defect(s); or
   
   (b) are (i) not, in whole or in part, caused by improper use (including but not limited to operation not in accordance with the manual or otherwise the instructions from Seller, use at a location that does not meet the requirements regarding normal operation and safety, use in a manner or for a purpose for which the goods were not designed or installation, modification, alteration or repair by anyone other than Seller or its authorized subcontractors), and (ii) in Seller’s reasonable opinion (are) found to have arisen solely from faulty workmanship or materials or Seller’s faulty design.
   

3. The Buyer will return the defective goods to Seller at its own costs.

4. If Seller, after having assessed the defect, either repairs or replaces the goods, such repaired or replaced goods will be delivered by Seller free of charge to the original place of Delivery, but otherwise in accordance with and subject to these GTCGSC and the applicable Agreement, except that the Warranty Period will be replaced by the unexpired portion of that period only. Seller will not install or otherwise assemble repaired or replaced goods, unless the Buyer specifically requests such assistance and the Seller agrees.

Article 8. Delivery of goods

1. Delivery of goods, where invoiced by the Seller, shall be made DAP in accordance with Incoterms 2010.

2. The moment the Seller has Delivered, the risk attached to such goods shall transfer to the Buyer.

3. If the Buyer fails to accept Delivery, the Buyer shall be liable for all cost associated therewith.

Article 9. Delivery times

1. Standard (non-binding) delivery time is between eight and twelve (8-12) weeks from the date of cleared first payment, unless otherwise specified in an Agreement.

2. Delivery is scheduled to start on the date specified in the Agreement in accordance with the time schedule specified in article 9.1, unless otherwise agreed by the parties. Any delivery schedule or time limits agreed upon will be automatically adjusted if the Seller has not yet received its (first) payment in accordance with the agreed payment schedule or if necessary conditions for performance of the Agreement have not been satisfied yet. Such adjustment shall be as if the first day of the delivery schedule or the period prior to exceeding any time limits was the day after receipt of the aforementioned payment or the day that all the necessary conditions were satisfied.

3. The specific term of delivery provided by the Seller is not binding as delivery times and schedules are an approximation based on circumstances known to parties at the time of conclusion of the Agreement, and, as far as it depends on the performance of third parties, on the information provided by such third parties to Seller. Seller will use reasonable efforts to comply with an agreed delivery schedule as much as possible, but may adjust the delivery schedule as necessary if required by circumstance unknown to the Seller.

4. Changes to the delivery times or the exceeding of the agreed delivery schedule will in no event entitle the Buyer to damages or to terminate the Agreement.

Article 10. Inspection and testing

1. Goods delivered by the Seller will be inspected by the Buyer or a third party appointed by the Buyer. Any complaints about defects to the goods that are due to defects in the material or result from manufacturing defects, as well as variations in quantity, weight, composition or quality in relation to what was agreed upon, shall be communicated to the Seller in writing immediately and ultimately within 72 hours after delivery of such goods. If no complaints are received by the Seller, the Seller may deem the goods to free of any defects.

2. If the Buyer rejects (a part of) goods that are part of a Delivery as a result of its inspection or test, the Seller shall handle the rejection, and possible the repaid and/or replacement of such goods in accordance with the conditions of article 7 (Warranty).

3. Defects which cannot reasonably have been discovered within the term set above, shall be notified to Seller immediately after they have been established and in any event no later than 30 days after delivery of the goods.

Article 11. Intellectual property

The Seller is the owner and retains ownership to any and all intellectual property rights related to the goods sold under the Agreement. Unless separate prior written approval is given by the Seller, the Buyer is not granted, expressly or implied, any licenses or other rights with regard to any intellectual property rights.

Article 12. Liability

1. The Seller is only liable in case of attributable failure by the Seller. The Seller is not liable for defects not covered by the Seller’s warranty as described in Article 7 (Warranty) or damages resulting from such defects.

2. If the Buyer provides the Seller with data, drawings and other such information, the Seller may relay on the accuracy and completeness of such information in the performance of an Agreement and shall not be liable for any damages resulting therefrom.

3. The Seller’s liability is in any case limited to direct damages.

4. The Seller’s liability total liability shall never exceed the amount actually paid under the Seller’s  insurance policies, if any.

5. If no insurance policy covers the damages, the Seller liability is excluded except in cases of gross negligence or willful misconduct.

6. The Buyer indemnifies the Seller from and against any liability claims from third parties resulting from Buyer’s actions.

Article 13. Suspension and other remedies

1. If the Buyer fails to meet its obligations under an Agreement, the Seller may suspend any and all of its obligations towards the Buyer until the moment that the Buyer has fulfilled its obligations.

2. The Buyer waives any right of suspension, lien, annulment, termination, and/or set-off.

3. Notwithstanding the warranty on the goods as provided for under Article 7 (Warranty), any claims related to the performance under an Agreement must have been submitted to the Seller in writing, explicitly and within six (6) months following Delivery, or have expired. The Buyer cannot pursue any legal action against the Seller with regard to such expired claims.

Article 14. Termination

1. The Seller has the right to terminate the Agreement in whole or in part without requiring any written notice of default:
   
   a) if the Buyer oversteps a deadline for the performance of its obligations;
   
   b) in the event of (a petition for): (i) insolvency, (ii) administrative receivership, (iii) (partial) liquidation or (iv) placement under legal restraint of the Buyer or the natural person or legal entity who acts as guarantor or who has provided security for the commitments of the Buyer;
   
   c) if the Buyer transfers (parts of) its company or the control thereof in whole or in part, suspends its business in whole or in part, or discontinues the business operations in whole or in part;

2. All possible claims of the Seller on the Buyer shall immediately become fully due and payable in case an Agreement is terminated.

3. Any provisions from an Agreement and the GTCGSC which are by their nature meant to remain in force after termination of an Agreement shall remain applicable after termination of such Agreement.

Article 15. Force majeure

1. The parties are entitled to suspend performance of their obligations if it is temporarily prevented from performing its contractual obligations due to force majeure.

2. The following circumstances, individually and collectively, qualify as grounds for an appeal by the Seller on the grounds of force majeure as described under this article 15.1 above: the circumstance of failure by suppliers, the Seller’s subcontractors, or transport companies engaged by the Seller to perform any obligations in good time; earthquakes; weather conditions; fire; power failure; loss, theft or destruction of tools or materials; road blocks; strikes or work stoppages; and import or trade restrictions.

3. In the event of force majeure where performance is or becomes permanently impossible or the obligations under the Agreement have been suspended for six (6) months, the parties are entitled to terminate the Agreement with immediate effect.

4. The Buyer will not be entitled to any compensation for any damages suffered as a result of suspension or termination as referred to in this article 15 (Force majeure).

Article 16. Disputes and applicable law

1. All and any disputes arising in connection with or following the Agreement or agreements that might be a consequence thereof shall be submitted for settlement to the court of law in Amsterdam, the Netherlands.

2. This Agreement is governed by Dutch law, with exclusion of the Vienna Sales Convention and any other international conventions that may apply and can be excluded.

Article 17. Final provisions

1. The Buyer is prohibited to pledge, assign or otherwise transfer any rights and claims (present or future) under the Agreement to third parties. With respect to claims, such transferability (as meant in Section 3:83(2) of the Dutch Civil Code) is excluded, which exception shall have a property-law effect.

2. The invalidity of a provision from the Agreement and/or from these GTCGSC does not affect the validity of any other provisions of the Agreement and these GTCGSC.

3. Should a provision from the Agreement and/or from these GTCGSC be deemed invalid, or otherwise unacceptable, the parties shall agree to a replacement provision with has the same meaning and effect or is as close as possible thereto and that is acceptable under the circumstances.

4. Supplements or changes to any provision of an Agreement shall be binding upon the Seller only if explicitly accepted by the Seller in writing.

5. Provisions of the GTCGSC shall not affect any of the Seller’s rights.

General Furniture Terms last updated: SEPTEMBER 19, 2019