Terms and conditions for businesses

The terms and conditions have been filed with the Netherlands Chamber of Commerce (KvK) under KvK number 69139652

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY of Mood Company B.V., WITH ITS REGISTERED OFFICE IN EMMEN, for business-to-business transactions.

1. General

These General Terms and Conditions apply to all our offers, sales agreements, orders and the deliveries arising from them, as well as to contracts for work. The applicability of any general terms and conditions used by the other party is expressly rejected. Deviations from these General Terms and Conditions are only binding on us if we have confirmed those deviations in writing. The other party cannot derive any rights for future transactions from any deviations that have been agreed. The Dutch text of the General Terms and Conditions is the authentic text and prevails over translations of these General Terms and Conditions. In these terms and conditions, 'in writing' means: by letter, by fax or electronically.

2. Formation of agreements

Our offers, whether made orally or in writing, are without obligation. We are only bound once we have accepted an order and/or assignment in writing by means of an invoice, even if we have made a written offer. We reserve the right to revoke our offer within two working days after the other party has accepted an offer. The conclusion of binding agreements is reserved to the management, unless the management has given an express authorisation. The agreement is always entered into subject to the condition precedent that the information obtained by us shows that the other party is, in our opinion, sufficiently creditworthy. Samples, models, images, documentation and other specifications shown or provided serve as an indication only, without the goods concerned having to correspond to them.

3. Intellectual property rights

We reserve all intellectual property rights to the data contained in our offers and/or agreements and/or the models, samples, drawings, images and/or instructions for use provided by us. We are not liable for any infringements of third-party intellectual property rights that may be committed in connection with the performance of an agreement between us and the other party. The other party is obliged to indemnify us against claims by third parties in connection with any infringement of intellectual property rights committed in connection with the performance of the agreement with us.

4. Deviations in data

We are not responsible for minor deviations between the numbers, types, sizes, quantities, colours, images and/or other data stated by us and the actual ones, unless such deviations bring about a material change in the technical and/or aesthetic design of the goods. The other party shall be obliged to accept the goods delivered. We are not liable for any damage resulting from such minor deviations. Deviations of less than 10 (ten) per cent shall in any event be deemed minor.

5. Prices

We are entitled to pass on to the other party any change in one or more of the cost-determining factors, such as transport costs, the prices of raw materials or materials, exchange rates, import duties or turnover tax, that relate to the agreed performance and that occur after the date of our offer or after the conclusion of the agreement, as the case may be, but before delivery. The prices of the goods offered or sold by us, as the case may be, are calculated on the basis of delivery ex works, Emmen, the Netherlands (EXW, Incoterms 2010), exclusive of VAT (BTW), import duties and other levies and taxes imposed by the authorities, unless otherwise stated in writing.

6. Payment

Unless otherwise agreed, an advance payment of at least 50% applies to every order. The total amount of the order must be paid in accordance with the amounts stated on the invoice no later than the due date stated on the invoice. The other party is not permitted to apply any discount, deduction, set-off or suspension of payment. Payments made by the other party shall always serve, first, to settle all interest and costs owed and, second, to settle the due invoices that have been outstanding the longest, even if the other party states that the payment relates to a later invoice. If our other party fails to pay the amount it owes on time, it shall owe the statutory interest for commercial transactions on the amount due from the date on which that amount fell due, without any notice of default being required. If our other party fails to pay the amount it owes on time, it shall furthermore be obliged to pay all extrajudicial and judicial costs associated with collection. The extrajudicial costs are set at 15 (fifteen) per cent of the invoice amount, with a minimum of €250.00 (two hundred and fifty euros). At our first request, upon or after entering into the agreement, our other party is obliged to provide (additional) personal or real security for the fulfilment of its (payment) obligations towards us. Refusal by the other party to provide the security requested entitles us to suspend our obligations and ultimately entitles us to dissolve the agreement in whole or in part without notice of default or judicial intervention, without prejudice to our right to compensation for any damage we have suffered.

7. Retention of title

We retain title to all goods delivered by us to the other party until the purchase price, including interest and costs, has been paid in full for all these goods. If, within the framework of these sales agreements, we carry out work for the other party that is to be paid for by the other party, the aforementioned retention of title shall apply until the other party has also paid these claims of ours in full. The retention of title also applies to the claims we may acquire against the other party on account of the other party's failure to perform one or more of its obligations towards us. As long as our aforementioned title continues, our other party is not entitled to dispose of the goods delivered by us and/or to alienate and/or encumber and/or treat or process them. The other party is, however, permitted to use or sell the goods in the ordinary course of its business, on the understanding that, until the other party has paid for the goods in full and has fulfilled its other obligations under similar agreements with us, we shall be subrogated to the rights of the other party against its customers. The other party shall in that case, to the extent necessary, assign these rights to us, which assignment we accept. However, the other party is not permitted to alienate the goods in the ordinary course of its business once it has applied for a moratorium on payments (surseance van betaling) or has been declared bankrupt.

As long as our aforementioned title continues, we are entitled to repossess the goods delivered by us from wherever they are located, at the expense of the other party, without notice of default or judicial intervention. The other party is obliged to store the goods delivered by us under retention of title with due care and identifiable as our property. If the other party is established in Germany or Belgium and the goods to be delivered by us are actually delivered to the other party in Germany or Belgium, the property-law consequences of the retention of title to the goods delivered and/or to be delivered to the German or Belgian other party shall be governed by German or Belgian law, as the case may be. In such a case, the preceding provisions of this Article 7 do not apply. For an other party established in Germany, they shall be deemed to have been replaced by the provisions of Annex 1 to these General Terms and Conditions. For an other party established in Belgium, the following conditions apply: "In the event of non-payment on the due date, we may consider the sale null and void by operation of law and without notice. The goods remain our property until the price has been paid in full. All risks are borne by the other party. Advance payments made shall be retained by us as compensation for possible losses on resale."

8. Delivery

Delivery conditions are agreed per transaction. All delivery conditions apply in accordance with Incoterms 2010. Our other party is obliged to take delivery of the goods at the moment they are made available to it under the agreement. If the other party fails to take delivery of the goods, the other party is in default and we are entitled, at our option:

(a) to transport the goods (or have them transported) to the other party's address, at the expense and risk of our other party, by a means of transport of our choice, or to store the goods at the expense and risk of our other party, or

(b) to declare the agreement dissolved without notice of default and without judicial intervention, without prejudice to our right to compensation for the damage suffered and/or profit lost by us, plus statutory interest calculated from the moment the claim became due and payable.

The above applies without prejudice to the other rights to which we are entitled.

9. Delivery time

A delivery time stated by us is always an indication and not a strict deadline. We are not in default with regard to the delivery time until the other party has given us written notice of default, has given us the opportunity to deliver within a reasonable period, and we have failed to do so. The delivery time does not commence until we have accepted an order and/or assignment in writing, our other party has provided us with all data and/or materials required for the performance of the agreement, and we have received any agreed advance payment from the other party. If, during the performance of the agreement, it becomes apparent that delivery is being delayed, the delivery time shall be extended by as many days as the delay has lasted. We are not liable for damage resulting from late delivery if and to the extent that such late delivery is due to circumstances that are not for our account and risk, including non-performance (or late performance) by suppliers. Only in the event of an excessive overrun (more than 12 weeks) of the agreed delivery time is the other party entitled to dissolve the agreement, unless the overrun is caused by force majeure. The other party shall, however, never be entitled to any penalty or compensation. Failure by the other party to meet any payment obligation (on time) suspends our delivery obligation. We reserve the right to deliver the goods in instalments, in which case the (payment) conditions described herein also apply to each partial delivery.

10. Complaints

Our other party is obliged to examine upon delivery whether the goods conform to the agreement. Our other party is obliged to submit any complaints about the goods delivered by us to us in writing within 8 (eight) days of delivery. This also applies to items delivered that were not ordered. In the case of a defect that is not externally visible, our other party is obliged to submit complaints about the goods delivered by us to us in writing within 8 (eight) days of discovering the defect, but in any event within 3 (three) months of delivery.

All complaints must be submitted by our other party stating the order/invoice number. Objections to invoices must also be submitted in writing, within 8 (eight) days of the invoice date. If complaints are not submitted in time in this manner, any claim against us shall lapse. Goods can only be returned if they are in their original condition and in undamaged packaging. Items that do not originate from us or that bear (price) stickers other than those applied by us are not eligible for return. The returned goods must be received by us no later than 1 (one) month after our authorisation of the return. Unless otherwise agreed, returns are at the expense and risk of our other party.

The following goods are not eligible for return:

Discontinued/deleted items (at the time we process the request);
Sale and overstock items (cut-out items);
Merchandise items

11. Warranty; limitation of liability

With regard to goods delivered by us, we are not liable to any further or other extent than for material and/or construction defects in the goods that have come to light within 3 (three) months of the date of delivery as referred to in Article 8, insofar as such defects substantially reduce the soundness or quality of the goods. Our liability under this article is limited to the free delivery of replacement goods (or replacement parts). Instead of delivering replacement goods, we are entitled to repair the defective goods delivered (or parts thereof) or to take them back against reimbursement of the relevant part of the invoice price. For goods delivered to us by third parties and passed on by us to our other party, including where the goods delivered by us are composed of goods supplied to us by third parties, we grant our other party the same warranty, but no further warranty than we have received from our supplier(s). Our other party may only invoke our obligations under this article once it has fulfilled all its obligations arising from the agreement concluded with us. If we are liable on any ground whatsoever, our liability is limited to an amount equal to the invoice value of the goods concerned, exclusive of taxes, on the understanding that we shall be liable at most and exclusively up to an amount of €5,000.00 (five thousand euros) per claim. For the purposes of this article, a series of related events causing damage shall be deemed to be one event/claim. We are never liable to compensate non-material damage, business losses, indirect damage, loss of profit or other consequential damage. Our other party is obliged to indemnify us against all claims by third parties relating to goods delivered and/or work performed by us.

12. Non-performance

If the other party fails in any way to perform any obligation towards us, or if there are grounds to fear that the other party will fail to perform its obligations towards us, and in the event of an application for a moratorium on payments, a (provisional) moratorium on payments being granted, a bankruptcy petition, a filing for or petition for bankruptcy, or the liquidation or cessation of (part of) the other party's business, we are entitled, without prejudice to our other rights and without any obligation to pay compensation, to dissolve the agreement(s) in whole or in part with immediate effect without the need for notice of default or judicial intervention, or to suspend the (further) performance of the agreement(s).

13. Cancellation

Cancellation of an order by the other party is in principle not possible. If the other party nevertheless cancels an order in whole or in part, for whatever reason, we may charge all costs reasonably incurred with a view to performing the order (including the costs of preparation, parts, storage and the like), without prejudice to our right to compensation for loss of profit and other damage. In the event of cancellation, the other party also owes cancellation costs. These amount to 30% (thirty per cent) to 100% (one hundred per cent) of the order amount, depending on the deliveries/work already carried out by us, plus VAT (if applicable).

14. Force majeure

In the event of force majeure, we are entitled, at our option, to suspend the performance of the agreement until the force majeure situation has ended, or to dissolve the agreement in whole or in part, insofar as it has not yet been performed, without judicial intervention and without being obliged to pay any compensation.

Force majeure means anything that reasonably occurs outside our direct control, including – but not limited to – strikes, lockouts, blockades, riots, public disorder, energy shortages, disruptions in the energy supply, transport bans, fire, transport accidents, transport/customs delays, industrial accidents, war or threat of war, natural disasters and floods. Force majeure also applies if the circumstance concerned was foreseeable at the time the agreement was concluded.

15. Applicable law; competent court

These terms and conditions and all our offers and/or sales agreements and/or contracts for work are governed by Dutch law, with the exception of the provisions of Article 7 of these General Terms and Conditions. The applicability of the Vienna Convention on Contracts for the International Sale of Goods of 11 April 1980 is expressly excluded. The competent court in Zwolle has jurisdiction to hear legal actions brought by and/or against us, without prejudice to our right to submit the dispute to another competent court if we so wish. The foregoing is without prejudice to our right to obtain a decision by means of arbitration by the International Chamber of Commerce in accordance with the Rules of Arbitration of the International Chamber of Commerce, by a sole arbitrator. The place of arbitration is Emmen, the Netherlands. The arbitration proceedings shall be conducted in English.

16. Limitation

Claims and defences based on facts that would justify the assertion that the goods delivered do not conform to the agreement become time-barred one year after delivery.

17. Conversion

If and insofar as any provision of these General Terms and Conditions cannot be invoked on the grounds of reasonableness and fairness, that provision shall be given a meaning that corresponds as closely as possible in content and purport and that can be invoked. These General Terms and Conditions of Sale and Delivery have been filed with the Chamber of Commerce (Kamer van Koophandel). The most recently filed version applies.