General Terms and Conditions
Meubel Stunter V.O.F General terms and conditions, with its registered office in Helmond, also trading under the names: Europe Teak, Benoa and Megafurn.
Filed on January 11th, 2022 at the Commercial Register of the Dutch Chamber of Commerce under number: 17223373.
Article 1 - Definitions
In these general terms and conditions the following terms will have the meanings stated:
1. General Terms and Conditions: these General Terms and Conditions of Meubel Stunter, which can be found on the Meubel Stunter website and which have been filed with the Chamber of Commerce.
2. Buyer: the natural or legal person on whose instructions services are provided, work is carried out or goods are delivered and who acts in the exercise of a profession or business.
3. Benoa: the company Meubel Stunter V.O.F., also trading under the names: Europe Teak, Benoa and Megafurn, registered in the trade register of the Chamber of Commerce under number 17223373, with its registered office in (5705 AD) Helmond at Engelseweg 149, also trading under the names: Europe Teak, Benoa and Megafurn.
4. Parties: Buyer and Benoa.
5. In writing: by letter, fax or electronic means.
Article 2 - Applicability of General Terms and Conditions
1. These General Terms and Conditions apply to all our offers, quotations and deliveries, as well as to all (additional) agreements, including agreements that are related to and/or result from agreements, between Meubel Stunter and the Buyer.
2. Additional and/or deviating conditions - including general conditions - of the Buyer do not form part of the agreement between Meubel Stunter and the Buyer and therefore do not bind Meubel Stunter. The applicability of the Buyer's general terms and conditions is expressly rejected.
3. Deviations from these General Terms and Conditions shall only be binding if the Parties have agreed to them in writing and only in respect of the offers, quotations and (supplementary) agreements to which they apply. These General Terms and Conditions shall remain in full force with regard to other offers, quotations and (supplementary) agreements.
4. Should any provision of these General Terms and Conditions be void or voided, the remaining provisions shall remain fully in force and the void or voided provision(s) of these General Terms and Conditions shall be replaced by a valid provision or provisions, taking into account, as far as possible, the purpose and purport of the void or voided provision(s).
5. In case of conflict between these general conditions and the (purchase) agreement concluded between Benoa and the Buyer, the (purchase) agreement will prevail.
6. Buyer's rights from this agreement cannot be transferred by Buyer without the prior written consent of Benoa. This provision is considered to be a clause with effect on property as meant in article 3:83 paragraph 2 of the Dutch Civil Code.
7. The agreement only works between the parties. A third party - directly or indirectly related to Buyer - cannot make a claim against Benoa under the agreement.
8. All illustrations and specifications of goods in catalogues, price lists, advertisements and the like are approximate.
9. In the event that an agreement is concluded by e-mail or other electronic means of communication, such e-mail or other electronic means of communication shall have the same legal force as a written statement.
10. If Benoa refers in any document to technical, safety or quality regulations and/or other information, the Buyer is assumed to be familiar with these, unless he notifies Benoa immediately in writing of the contrary. In that case, Benoa will provide him with further information on these regulations.
Article 3 - Quotations and Offers
1. All offers and quotations of Benoa are without obligation, even if the offer contains a term for acceptance. All prices mentioned are in Euro (€ or EUR). Benoa has the right to correct printing and writing errors and other errors in the communication.
2. All offers and quotations are based on the execution of the agreement by Benoa under normal circumstances, based on information known to Benoa and during normal working hours, unless otherwise indicated in writing.
3. Information provided by Benoa in printed matter, on the website or otherwise, including price, characteristics, dimensions, colour, drawings and images are subject to changes and can also be changed without prior notice. An interim, unannounced change cannot be held against Benoa.
4. If Buyer provides information, drawings, work instructions and comparable information to Benoa, Benoa may assume the correctness of this information and will use it in the preparation of its offer. Benoa will, however, point out to the Buyer, reasonably known to him and relevant to the work:
- errors in the assigned activities;
- errors in the working methods and constructions required by the Buyer;
- defects in or unsuitability of materials or resources made available by the Buyer; - errors in
the information provided by or on behalf of the Buyer;
- errors and defects, as mentioned in the above paragraphs, insofar as they are revealed to Benoa before or during the execution of the work and Benoa should be deemed competent in the matter.
5. Deviations in the field of colour and measurements stated by Buyer shall in any case not qualify as inaccuracies and defects as referred to in Article 3.4., with due observance of the provisions of Article 5.
Article 4 - Agreement and Conclusion
1. The agreement, as well as amendments and supplements to it, is concluded by Benoa's written acceptance by means of an order confirmation (hereinafter: "Order Confirmation"). Buyer needs to check the Order Confirmation immediately and without delay. The agreement is considered concluded and fully proven by Benoa's Order Confirmation, unless Buyer has made his objections known to Benoa in writing and with reasons within 48 hours after sending the Order Confirmation. Additional arrangements and/or changes, by whomever made, are only binding if they have been confirmed in writing by Benoa.
2. Any offer or commitment made by a Benoa employee or representative is only binding insofar as the latter has confirmed it in writing.
3. Oral agreements do not bind Benoa except after and insofar they have been confirmed in writing by Benoa.
4. Each agreement that is concluded between the Parties is subject to the resolutive condition of the creditworthiness of the Buyer, at the sole discretion of Benoa. On Benoa's first request, the Buyer is obliged to provide insight into its creditworthiness. Only Benoa can invoke the resolutive condition mentioned in this Article. Benoa has the right to suspend any obligations it may have until the aforementioned coverage under a credit insurance has been obtained.
5. A composite price quote does not oblige Benoa to deliver the goods included in the quote for a corresponding part of the quoted price, nor does the quote automatically apply to repeat orders.
6. The goods to be delivered by Benoa do not need to meet other specifications and/or have other characteristics than those laid down in the confirmation of the order. With due observance of the other provisions of these general terms and conditions (and those of the agreement), Benoa will deliver the goods in accordance with the specifications as stipulated in the order confirmation.
Article 5 - Advice, Designs and Materials
1. The buyer cannot derive any rights from advice and information he receives from Benoa, if these are not directly related to the actual order.
2. The Buyer is responsible for the drawings, calculations and other data provided by him or on his behalf and for the functional suitability of the materials prescribed by him or on his behalf.
3. Buyer indemnifies Benoa for any claim by third parties with regard to the use of drawings, calculations, materials, samples, models, etc. provided by or on behalf of Buyer.
4. Buyer is entitled to examine (or have examined) the materials that Benoa wants to use before they are processed, at his own expense. If Benoa suffers damage as a result, this will be at the expense of the buyer.
Article 6 - Price
1. Unless otherwise agreed in writing, the price shall be a net price, excluding turnover tax, service costs, transport costs and other government charges and/or third-party charges related to the sale and/or delivery and/or execution of the agreement, on the basis of delivery "ex works" in accordance with ICC Incoterms 2020 and excluding packaging.
2. Benoa is entitled to charge the costs of packaging separately.
3. If, after the date of the order confirmation, but before delivery, price increases occur, for example due to changes in government legislation and regulations or due to any other circumstance as a result of which the basis of the calculation of Benoa changes, such solely at the discretion of Benoa, Benoa has the right to increase the agreed price proportionally. Price reductions after the conclusion of the agreement as a result of, for example, clearance sales, cancellations, promotions or discounts on showroom models do not entitle the Buyer to a price reduction.
Article 7 - Delivery
1. The delivery time and/or execution period of the entire delivery, the entire work, the partial activities or partial deliveries are determined by Benoa on an approximate basis and are never firm deadlines. In the event of late delivery, Benoa must be given written notice of default.
2. When determining the delivery time and/or execution period, Benoa assumes that it can carry out the order under the circumstances known to it at that moment.
3. The delivery time and/or execution period starts when agreement has been reached on all technical details, all necessary data, final drawings etc. are in the possession of Benoa, the agreed (term) payment has been received and the necessary conditions for the execution of the order have been met.
4. In the event of circumstances other than those known to Benoa when it determined the delivery time and/or execution period, Benoa can extend the delivery time and/or execution period by the time required to carry out the order under these circumstances. If the activities cannot be fitted into Benoa's planning, they will be executed as soon as his planning allows.
5. Buyer is subject to a purchase obligation. If Buyer does not take delivery of the goods at the specified time, Buyer will be in default and Benoa has the option to (i) rescind the agreement; (ii) ship the goods to Buyer at the expense and risk of Buyer; (iii) store the goods at the expense and risk of Buyer. All costs resulting from the above circumstances, including the costs of storage and possible loss of profit, will be at the expense of Buyer. The above is without prejudice to the other rights accruing to Benoa.
6. The risk of loss or damage to the goods that are the subject of the agreement will transfer to the Buyer at the time of delivery, i.e. the moment they are placed in the actual possession of the Buyer or an auxiliary person used by the Buyer, or at the moment that Benoa has declared to the Buyer that the goods are at the disposal of the Buyer.
7. In the event of additional work, the delivery time and/or execution period will be extended by the time required to deliver (or have delivered) the materials and parts for this purpose and to carry out the additional work. If the additional work cannot be fitted into Benoa's schedule, the work will be carried out as soon as the schedule allows.
8. In case of a justified suspension of obligations by Benoa, the delivery time and/or execution period will be extended by the duration of the suspension. If continuation of the activities cannot be fitted into Benoa's schedule, the activities will be executed as soon as the schedule allows this.
9. Delivery takes place "ex works", in accordance with ICC Incoterms 2020; the risk of the goods is transferred at the moment Benoa makes them available to Buyer.
10. Notwithstanding the provisions in article 7.9, Benoa and Buyer can agree that Benoa will arrange for transport. The risk of storage, loading, transport and unloading also rests in that case on Buyer. Buyer can insure himself against these risks.
Article 8 - Payment
1. Payment is made at the place of business of Benoa or on an account indicated by Benoa.
2. Benoa is entitled to demand a down payment of 30% from the Buyer.
3. Payment of an invoice or partial invoice shall take place no later than 8 (eight) days after receipt, unless otherwise agreed.
4. Payment is considered to have taken place as soon as the amount owed is irrevocably credited to Benoa's bank account.
5. Buyer waives the right to set off a debt to Benoa against a claim against Benoa.
6. The Buyer waives the right to suspend the performance of any of its obligations under this Agreement.
7. If the Buyer is in default with regard to the payment of any claim towards Benoa, Benoa has the right to suspend the further execution of all current agreements between Benoa and the Buyer until this payment has been made, while, also when it has been agreed otherwise, cash advance payments can be demanded for the further delivery. This also applies in case the claim is disputed. If afterwards the Buyer is put in the right, Benoa will never be liable for damages. Any objections against an invoice must be submitted in writing to Benoa, stating reasons, within five (5) days of the invoice date; if no objection is made (in time), the invoice will be considered accepted.
8. If the agreed payment term is exceeded, the Buyer shall be in default by operation of law and shall owe the statutory commercial interest (as referred to in Section 119a of Book 6 of the Dutch Civil Code) from the date of default.
9. All costs, both judicial and extrajudicial, relating to the collection of the amounts owed by the Buyer and not paid on time, shall be borne by the Buyer, with a minimum of € 50.00. The costs are calculated based on the following table:
for the first € 3.000,00 15%
on the excess up to € 6.000,00 10%
on the excess up to € 15.000,00 8%
on the excess up to € 60.000,00 5%
on the excess up to € 60.000,00 3%
If the actual judicial and extrajudicial costs are higher than follows from the above calculation, the actual costs incurred shall be due.
10. Payments made by the Buyer shall always serve to settle all interest, costs and penalties owed and subsequently to settle claims from the agreement which are due the longest, even if the Buyer states that the settlement relates to another claim.
11. In case of liquidation, insolvency, application for bankruptcy or suspension of payment of Buyer, the claims of Benoa, for whatever reason, on Buyer are immediately due and payable.
12. Benoa has at all times the right, at or after entering into the agreement, before (further) performance, to demand security - in any form whatsoever - from the Buyer for compliance with all its obligations under the agreement. If the Buyer does not comply with the request to provide security, Benoa has the right, without prejudice to its other rights, to dissolve the agreement wholly or in part without notice of default or judicial intervention or to immediately suspend the (further) execution of the agreement, without prejudice to its right to compensation for damages. At the same time, everything the Buyer owes Benoa for whatever reason will be immediately due and payable.
Article 9 - Warranty
1. If Benoa, in the execution of its performance, uses materials or services provided by third parties, Benoa's warranty to the Buyer is equal to the warranty that Benoa obtains from this third party.
2. If the agreed performance only consists of the delivery of a good, Benoa guarantees the soundness of the delivered good during the period mentioned in article 9.1. If it appears that the delivery has not been sound, the Buyer must return the goods to Benoa, carriage paid, within a reasonable period of time. Benoa will then choose whether it will repair or replace the goods. The possible travel, accommodation and/or transport costs, as well as the costs of possible disassembly and assembly will be charged to the Buyer.
3. If the costs of replacement or repair are for the account of Benoa, the amount to be reimbursed by Benoa will be limited to that part of the invoice amount (excluding sales tax) that pertains to the production and assembly costs of the part to be repaired or replaced.
4. In all cases, the buyer will offer Benoa the opportunity to repair a possible defect or to replace a defective (sub)part. The buyer will allow Benoa to use hoisting, lifting and transport equipment and the like free of charge.
5. The commencement date of the warranty is the date of delivery, being the moment at which they have been placed in the actual possession of the Buyer or an auxiliary person used by Buyer, or the moment that Benoa has declared to Buyer that the goods are at the disposal of Buyer. In case of suspension of the commencement date of the warranty, the end date of the warranty will not be changed.
6. Re-delivery, replacement or repair shall not extend or renew the warranty period.
7. No guarantee is given for defects such as, or resulting from:-
weathering and/or normal wear and tear;
- injudicious or abnormal use;
- the lack of maintenance or cleaning;
- installation, assembly, alteration, repair or additions by the Buyer or by third parties;
- minor imperfections in the finish that do not affect the soundness;
- damage that is the result of unforeseen, temporary or permanent harmful influence(s) of the environment; -
items, materials and working methods that deviate from the current quality requirements, advice and regulations, in as far as these are applied on the explicit instruction of the Buyer; -
materials supplied by or on behalf of Buyer;
- colour differences and/or loss of gloss;
- faults that could have been detected at the time of delivery or otherwise;
- damage and/or faults that arise during or after delivery or otherwise due to external influences;
- incorrect storage by Buyer whereby the goods delivered are exposed to the effects of moisture, contamination, mould, dryness, light, high and low temperatures, shocks and vibrations or long-term storage.
Article 10 - Advertising
1. Buyer must immediately, fully and accurately inspect the delivered goods, or have them inspected, with regard to, among other things, but not limited to, numbers/weight and visible and invisible defects. Complaints about numbers, weight and/or visible defects must be made within 24 hours of receipt of the goods, accurately stating the nature and grounds for the complaints. Complaints about deviations that are not immediately noticeable must be made within 48 hours of discovery and in any case no later than three (3) weeks after receipt of the goods. Any right of claim of the buyer towards Benoa with regard to errors in the delivery or defects in or to the goods delivered by Benoa will lapse irrevocably as soon as the aforementioned claim periods have expired. Minor deviations or deviations that are common in the sector and differences in quality, quantity, extent or finish cannot constitute grounds for complaints.
2. The Buyer shall carry out the inspection or have it carried out with due care. The Buyer bears the risk of random inspection and may not rely on the fact that the Buyer has not discovered a defect that was visible and could have been discovered at the time of delivery, because the Buyer has not inspected the entire batch.
3. The possibility for the Buyer to complain lapses also if the defect is attributable to the Buyer, including but not limited to the case where the delivered goods have been stored or used improperly, or have not been used in accordance with the agreed or usual destination. Improperly is also understood to mean that any storage or user instructions issued by Benoa are not respected.
4. In case of a complaint, the buyer is obligated to keep the goods he complains about at the disposal of Benoa. The buyer is also obliged to cooperate with any investigation by Benoa or a third party engaged by Benoa. If the complaint is upheld, the costs of the investigation will be borne by Benoa. If the complaint is declared unfounded, the costs will be at the expense of the Buyer.
5. A complaint does not give the Buyer the right not to fulfil its (payment) obligations towards Benoa, or to invoke suspension or settlement.
6. Return of the goods is only permitted with Benoa’s prior written consent, under conditions to be determined by Benoa. In case of return without Benoa's consent, shipment and storage of the goods will be at the expense and risk of the buyer.
7. If a complaint is rightly made within the specified claim periods, Benoa is only obliged to deliver the missing goods, replace the delivered goods, or take back the goods and credit the Buyer for the relevant invoice amount. Benoa is under no circumstances obliged to compensate other costs and/or damage.
Article 11 - Cancellation
1. Cancellation by the Buyer is in principle not possible. If Buyer nevertheless cancels an order wholly or partially later than seven (7) days after receipt of the order confirmation, as a result of any cause whatsoever, he is obliged to reimburse Benoa for all costs reasonably incurred with regard to the execution of the order (including costs of preparation, storage and the like), without prejudice to Benoa's right to compensation for loss of profit and other damages.
2. In the event of cancellation, Buyer shall also owe cancellation costs. These costs are 30% of the principal amount, plus VAT.
3. Section 7:408 paragraph 2 of the Dutch Civil Code is not applicable.
Article 12 - Retention of title
1. Delivery of goods by Benoa is always subject to the suspensive condition that all existing and future claims of Benoa on the buyer on account of concluded or further agreements, are paid in full. The retention of title contained herein, however, does not apply to claims other than:
claims relating to counter-services regarding the goods delivered or to be delivered by Benoa to the Buyer, or activities performed or to be performed by Benoa on behalf of the Buyer, and/or,
b. claims due to failure in the performance of the agreements referred to under a, including claims for compensation and reimbursement of extrajudicial and judicial costs, contractual and statutory interest, fines and penalties.
2. Buyer is obliged to store the delivered goods separately and to indicate that they are the property of Benoa. As long as the suspensive condition as referred to in 12.1 has not entered into force, the Buyer is not authorized to dispose of the goods purchased under retention of title, to transfer the actual control over these goods, in whole or in part, to one or more third parties, or to enter into a legal transaction that obliges him to transfer the actual control over the purchased goods, in whole or in part, to one or more third parties, on the understanding that these powers will only accrue to the Buyer if and insofar as this is necessary or at least desirable in the context of the normal conduct of his business.
3. Benoa has the right to transfer the reserved ownership and the rights and obligations attached to it, to one or more third parties.
4. In the event that the Buyer forms or has formed a new item from one or more goods delivered or to be delivered by Benoa, then the new item will be formed for Benoa.
5. Items of the same type at the Buyer as those provided to Buyer by Benoa, are presumed to belong to Benoa, unless proven otherwise by the Buyer.
Article 13 - Intellectual Property Rights
1. Unless expressly agreed otherwise in writing, Benoa retains all intellectual property rights on the goods delivered and offers made, provided designs, images, drawings, calculations, (test) models, software, trade names, trademarks, logos, slogans, service marks, know-how, information and any other distinguishing material.
2. Buyer shall immediately notify Benoa of any actual, anticipated or intended infringement of Benoa's intellectual property rights.
3. The rights to the information mentioned in article 13.1 will remain the property of Benoa regardless of whether costs have been charged to the Buyer for its production. This data may not be copied, used or shown to third parties without the explicit consent of Benoa.
4. In case of violation of the provisions in article 13.2. and 13.3. Buyer owes Benoa a fine of € 5,000.00 per violation, without prejudice to Benoa's rights to performance and compensation..
Article 14 - Liability and Indemnity
1. Benoa's liability for direct damage is limited. Liability for indirect damage is excluded. The term indirect damage is understood to mean in any case – but not exhaustively – consequential damage, immaterial damage, loss of business and stagnation damage, damage in respect of a product recall initiated by Buyer or third parties, loss of profit or environmental damage.
2. Benoa is furthermore not liable for damage that has arisen as a result of: -
force majeure, as described in article 15.1.
acts or negligence of the Buyer, his subordinates or persons who are employed by or on behalf of him;
- negligence of the Buyer in the maintenance of the delivered goods;
- incorrect assembly by the Buyer; -
damage to the delivered goods as a result of mechanical or biological external influences; - abnormal humidity conditions in the room where the delivered goods are installed and/or delivered;
- discolouration of the delivered goods due to the effect of light and/or weather conditions;
- any other external influences.
3. Any liability (for direct and/or indirect damage) - regardless of the basis of liability - of Benoa is limited to the amount that, as the occasion arises, is paid out by the liability insurer of Benoa, less the excess to be paid by Benoa. If no payment is made under Benoa’s liability insurance - regardless of the reason for the non-payment - Benoa's liability is limited to the amount of net invoice value charged by Benoa to the Buyer during the three (3) months preceding the occurrence of the liability and that was timely paid by the Buyer, on the understanding that Benoa's liability will never exceed EUR 25,000 (in words: twenty-five thousand euro) per event or series of related events.
4. Not excluded is Benoa's liability for damage resulting from intent or willful recklessness on the part of Benoa or its managerial subordinates.
5. All rights of action of Buyer against Benoa, either on account of a shortcoming in the performance, or on account of an unlawful act, or on any other ground, will lapse as soon as a period of one (1) year has elapsed after the day on which Buyer became aware or could reasonably have become aware of the existence of those rights of action and Buyer has not brought the relevant claims to court within that period of one (1) year.
6. Buyer indemnifies Benoa against possible claims of third parties for damages suffered by third parties in connection with goods delivered by Buyer to these third parties or goods in which the goods of Benoa have been processed, unless it is established by law that these claims are a direct consequence of gross negligence or intent on the part of Benoa and Buyer moreover demonstrates that he is not at fault in this matter.
Article 15 - Force Majeure
1. In addition to the provisions in article 6:75 of the Dutch Civil Code, a shortcoming of Benoa in the fulfilment of any obligation towards the Buyer cannot be attributed to Benoa in case of a circumstance independent of Benoa’s will, as a result of which the fulfilment of its obligations towards the Buyer is wholly or partly hindered or as a result of which the fulfilment of the obligations by Benoa cannot reasonably be required of Benoa. These circumstances include in any case failure of suppliers or other third parties on which Benoa depends for the execution of the agreement, lack of raw materials, transportation problems, war, riots, sabotage, floods, loss, damage and/or delay during and by transportation, extreme absenteeism and wildcat strikes of personnel, actions/measures at the customs, (temporary) closure of certain geographical areas, failed or disappointing harvest, fire, export or import bans and other accidents and serious disruptions in Benoa's company or at its clients and national disasters. Force majeure in any case means the COVID-19 pandemic and all measures taken by (foreign) local, regional and national governments as a result thereof.
2. If a situation arises as referred to in article 15.1 as a result of which Benoa cannot fulfill its obligations towards the Buyer, these obligations will be suspended as long as Benoa cannot fulfill its obligations. If the situation referred to in the previous sentence has lasted more than six (6) months, both parties have the right to rescind the agreement in writing, wholly or partially. In that case, Benoa is not bound to compensate for any damage, even if Benoa benefits from any advantage as a result of the force majeure situation.
3. If Benoa has already partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure or will be able to fulfil them, Benoa is entitled to separately invoice the part already fulfilled or to be fulfilled. The buyer is obliged to pay this invoice as if it were a separate agreement.
Article 16 - Choice of Law and Forum
1. These general terms and conditions, all offers and quotations issued by Benoa and all agreements between the buyer and Benoa are exclusively governed by Dutch law.
2. The Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is not applicable. Neither is any future international regulation regarding the purchase of movable property.
3. All disputes between the parties, arising from or otherwise related to quotations/offers, these general conditions and/or agreements, by whatever name, will, to the exclusion of other courts, be submitted to the court in the Netherlands, district of Oost-Brabant, and with regard to claims in summary proceedings to the judge in the district of Oost-Brabant, on the understanding that Benoa at all times has the right to submit the case to the competent court according to the statutory rules of competence.