General terms and conditions of sale, delivery and payment of Meri-Lou
Article 1 – Applicability of the general terms and conditions of sale, delivery and payment
1.1 These General Terms and Conditions of sale, delivery and payment (“the Conditions”) are part of every agreement made between Meri-Lou and any third party (“the Buyer”) and all offers made by Meri-Lou, with regard to the supply of movable property.
1.2 The Conditions, after they have become part of any agreement between Meri-Lou and the Buyer, will also form part of agreements subsequently made between Meri-Lou and the Buyer, even if the agreements that were subsequently made do not comply with the Terms and Conditions that have been referenced.
1.3 Deviations from the Conditions only apply if these have been specifically agreed to in writing by the Buyer and Meri-Lou and that these deviations have been accepted by Meri-Lou in writing. The deviations only apply to the offer or agreement in which they were made.
1.4 Total or partial nullity of any provision of the Conditions does not affect the validity of the other provisions of the Conditions.
1.5 Application of the Conditions appealed by the Buyer are explicitly rejected by Meri-Lou. General or special conditions of the Buyer are excluded, in particular, to a certain extent, those conditions that would relate to payment, set-off or the right to pledge or transfer claims of Meri-Lou on Buyers.
1.6 If Meri-Lou does not appeal on any applicable provision of these Conditions initially out of leniency or for other commercial reasons, it does not thereby deny Meri-Lou the right to appeal on the Conditions in question at a later stage and on any other applicable provisions of the Conditions.
Article 2 – Quotations and conclusion of the agreement
2.1. Every quote from Meri-Lou is without obligation, unless it is explicitly stipulated in writing that the offer is irrevocable, and will lapse by operation of law, unless explicitly stated otherwise in writing, after thirty (30) calendar days from the date of the offer. Quotes from Meri-Lou can only be accepted in writing.
2.2. Agreements between parties are made because the conclusion of agreement has been confirmed, in writing, on behalf of Meri-Lou, by authorized persons, to the Buyer or because Meri-Lou has implemented the agreement in a manner known to the Buyer unreservedly. Notwithstanding the foregoing, unless explicitly agreed otherwise in writing, Meri-Lou is only obliged to deliver the ordered goods if the total minimum order value has been reached, as applied in the country in which the Buyer is established, or as specifically stated on the offer or order confirmation from Meri-Lou. Meri-Lou has the right, without being obliged to pay any compensation and without unabating Meri-Lou’s rights under art. 15, to terminate agreements made with the Buyer, or to terminate them by giving notice if the minimum order value referred to above has not been reached within a period of six weeks after the (first) agreement has been made.
2.3. Changes or additions to an already concluded agreement as well as ancillary agreements are only binding if these have been confirmed in writing to the Buyer by Meri-Lou.
2.4. Drawings, images, sizes or other delivery dates are only binding if expressly agreed in writing.
Article 3 – Prices
3.1. All prices stated by Meri-Lou in its quotes are not binding, unless expressly agreed in writing.
3.2. All prices are quoted as net prices and do not include value added tax (VAT).
Article 4 – Delivery
4.1 If Meri-Lou shows or provides a drawing, photo, model, design, calculation or other information, this is only done by way of indication. The goods delivered may deviate from what is shown.
4.2. Unless otherwise agreed, delivery takes place ex works or ex-warehouse delivery.
4.3. The buyer is obliged to purchase the goods at the time of delivery. If the Buyer refuses to take delivery or is negligent in providing information or instructions necessary for the delivery, the goods will be stored at the Buyer’s risk. In that case, the buyer must pay the storage costs, without unabating Meri-Lou’s right to still claim compliance and/or full compensation and to dissolve the agreement.
4.4. The Buyer is obliged, under penalty of forfeiture of rights, to inspect the delivered goods or have them checked for possible shortages or damages within 48 hours after the actual delivery, after Meri-Lou has notified that the goods are at the Buyer’s disposal. Damaged or incomplete items will only be taken back by Meri-Lou and replaced if they are returned in the original packaging (if any).
Article 5 – Partial deliveries
5.1 Meri-Lou reserves the right to deliver in parts (partial deliveries) that can be invoiced separately. The Buyer is then obliged to pay in accordance with the provisions of Article 12 of the Conditions.
Article 6 – Delivery time
6.1. The delivery time is always approximate and does not count as a deadline, unless explicitly agreed otherwise in writing.
6.2. Meri-Lou is in no way liable for exceeding the delivery time, for whatever reason. Exceeding the delivery time does not oblige Meri-Lou to pay any compensation and does not give the Buyer the right to dissolve the agreement or to refuse purchase, or to rely on suspension of any obligation of the Buyer.
Article 7 – Force majeure
7.1. Force majeure, in addition to the provisions of Article 6:75 of the Civil Code, means: strikes (both organized and unorganized) in the company of Meri-Lou, a general lack of material and other for attaining the agreed presentation of necessary goods or services, general obstacles of transport, non-compliance (whether or not attributable) by suppliers of Meri-Lou, and staff shortages.
7.2. Meri-Lou’s delivery and other obligations are suspended during a period of force majeure. If the period, in which fulfillment of obligations by Meri-Lou is not possible due to force majeure, lasts longer than 3 months, both parties are entitled to terminate the agreement in whole or in part by means of cancellation or dissolution, without in that case being obliged to pay compensation or to make goods exist.
7.3. Meri-Lou is entitled to demand payment for what has already been done in the performance of the agreement in question before the circumstance causing the force majeure has become apparent.
7.4. Meri-Lou also has the right to invoke force majeure if the circumstance causing the force majeure occurs after Meri-Lou should have already delivered the goods.
Article 8 – Warranty
8.1. With due adherence of what is stipulated elsewhere in the Conditions, Meri-Lou guarantees that the materials delivered by it or the materials processed/used by Meri-Lou meet the requirements set of normal traffic for 6 months after delivery. If the Buyer has sufficiently demonstrated that the delivered or the materials do not meet the requirements set of normal traffic, Meri-Lou will, at its selection, either provide parts, repair the delivered, either to replace it, or to terminate the agreement (in whole or in part) in combination with a pro rata refund of the amount already paid by the Buyer and then without being obliged to pay compensation.
8.2. The aforementioned guarantee requirement lapses if:
a. The buyer himself changes (s) or repairs (s) the delivered without prior written approval of Meri-Lou;
b. The Buyer has used the delivered goods for a purpose other than the apparent use;
c. The Buyer has handled, used or maintained the delivered goods (in Meri-Lou’s reasonable opinion) in an improper manner;
d. The Buyer fails to fulfill his obligations towards Meri-Lou;
e. The Buyer information obligations (in accordance with art. 8.7) has not been complied with (in accordance with art. 8.7);
f. Otherwise, the buyer is wholly or partially at fault for the lack of the delivered goods.
8.3. Any costs of disassembly, shipping and transport are for the account and risk of the Buyer.
8.4. Warranty for goods purchased elsewhere by Meri-Lou is only given if and if the manufacturer/supplier concerned provides warranty to the extent thereof.
8.5. The warranty period is not extended after warranty repairs.
8.6. When the Buyer makes a warranty claim it does not release the Buyer from its obligations, such as payment and purchase under the agreement(s) concluded with Meri-Lou.
8.7. If the delivered goods consist entirely or partly of glass, the buyer must properly inform the customer about the properties of and handling of this material and, more specifically, that even minor damage with tempered glass leads to pressure differences and subsequent (glass) may cause breakage.
Article 9 – Advertising
9.1. Complaints must be made in writing and as soon as possible, but no later than and with due observance of the terms referred to in art. 4.4, within 7 working days after the defects have been discovered, with an accurate statement of the nature and basis of the complaint(s) and the alleged basis of Meri-Lou’s liability for replacement, repair or compensation. Not or insufficiently motivated complaints will not be processed by Meri-Lou.
9.2. After the above term has expired, the Buyer is deemed to have approved the delivered goods. Complaints submitted after this period will no longer be processed by Meri-Lou.
9.3. Returns can only be made after Meri-Lou’s prior written approval, under the conditions to be determined by Meri-Lou.
Article 10 – Liability
10.1. Meri-Lou’s liability to the Buyer, with the exception of the provisions of the following paragraphs, is limited to the fulfillment by Meri-Lou of its warranty obligations as described in Article 8.
10.2. Liability of Meri-Lou for any wrongful acts committed by it, is excluded unless these are the result of intent or deliberate recklessness on the part of senior employees of Meri-Lou. Also excluded is the liability of Meri-Lou for indirect and consequential damage suffered by the Buyer as a result of an attributable shortcoming committed by Meri-Lou, such as, but expressly not limited to: lost profit, lost turnover, intangible damage, missed opportunities and damage to the good name, unless this damage is the result of the intent or deliberate recklessness of Meri-Lou’s senior employees.
10.3. Meri-Lou’s liability for direct damage suffered by the Buyer, which is the result of or is related to an attributable shortcoming of Meri-Lou in the fulfillment of its obligations towards the Buyer under the agreement made with the Buyer, is limited to cases in which the Buyer proves that the damage is the direct result of Meri-Lou’s attributable shortcoming. This liability is limited to the value agreed between the parties (excluding VAT) of the relevant agreement, with a maximum of € 2,500 per event or series of related events with a common cause.
10.4. Any claim against Meri-Lou on the basis of an agreement made with Meri-Lou will lapse after a period of one year, unless a summon has been validly issued before this period has expired. The expiry period starts on the day following that on which the Buyer became aware of both the damage and the liable party.
10.5. All defences that Meri-Lou can derive from the agreement made with the Buyer to discharge its liability can also be appealed against the Buyer, by its personnel and third parties engaged by it, in the performance of the agreement.
10.6. Liability limiting, exclusive or determining conditions that can be invoked against Meri-Lou by third parties, can also be invoked by Meri-Lou against the Buyer.
Article 11 – Indemnification
11.1 The Buyer indemnifies Meri-Lou, its staff and any third parties engaged by Meri-Lou in the context of the performance of its obligations under the agreement against all claims of other third parties for compensation for any damage (allegedly) suffered by the latter, caused by or otherwise related to services provided by Meri-Lou.
Article 12 – Payment conditions
12.1. Unless explicitly agreed otherwise, in writing, payment of any invoiced amount must be made before delivery and in accordance with the method indicated on the invoice. Payment must be made in the agreed currency and without settlement, discount and/or suspension.
12.2. In the event of a late payment of an invoice, the Buyer is in default, without notice of default, and all payment obligations of the Buyer must become immediately payable. This is also the case if the Buyer is declared bankrupt or applies for a moratorium.
12.3. In the event of late payment of an invoice, the Buyer owes the statutory commercial interest (Article 6: 119a of the Dutch Civil Code), plus 2% of the invoice amount, from the due date of the invoice. In addition, Meri-Lou is entitled to charge a reminder fee of € 7.50.
12.4. In addition, all judicial and extrajudicial costs reasonably incurred by Meri-Lou (such as, but not limited to: bailiff’s costs and the costs of legal assistance) incurred in connection with the Buyer’s failure to fulfil its obligations will be borne by the Buyer, this with a minimum of 10% of the principal sum owed (incl. VAT) or an amount of € 250, = insofar as this is higher, in which minimum compensation must (also) be regarded as an incentive for the Buyer to pay her (payment) to properly fulfil obligations (penalty clause).
12.5. Payments made by the Buyer will always be deducted firstly from all interest and costs owed and in the second place from the invoices that are due and outstanding, even if the Buyer states that the payment relates to a later invoice.
12.6. Irrespective of the foregoing, Meri-Lou has the right at all times to demand cash payment or, before proceeding to deliver or further work, to demand sufficient security from the Buyer for timely payment. The security is provided by means of an irrevocable bank guarantee from a reputable Dutch banking institution, or by providing other security that can reasonably be equated to this.
Article 13 – Retention of title
13.1 Delivered goods remain the property of Meri-Lou as long as the Buyer has not fulfilled the claims regarding the consideration for:
a. goods delivered or to be delivered by Meri-Lou to the Buyer under the agreement; or
b. pursuant to such an agreement also performed or yet to be performed for the benefit of the Buyer; or
c. with regard to claims for failure to fulfil such agreements.
With regard to the delivered goods, Meri-Lou also acquires the (co-) property right, as security for all outstanding claims against the Buyer, as well as with regard to the goods on which Meri-Lou’s ownership rights are lost through processing, tracing, case formation or otherwise stipulated.
As soon as the Buyer fails to fulfil one or more of his obligations towards Meri-Lou, all claims against the Buyer become immediately due and owed and Meri-Lou is authorized, without any notice of default or judicial intervention, to enforce the rights arising from its retention of title.
13.2 Before said transfer of ownership, the buyer is not authorized to sell, deliver or otherwise dispose of the delivered goods other than in accordance with its normal business and the normal destination of the goods. This authority lapses when the Buyer is granted a (provisional) suspension of payment or is declared bankrupt. The buyer may under no circumstances have the goods subject to retention of title serve as security for claims against third parties.
13.3 Before said transfer of ownership, Meri-Lou has access at all times to the goods it owns, wherever they are located.
13.4 In the event of violation of the provisions of this article, the Buyer will owe a fine of 10% of the outstanding debt at the time of the violation.
13.5 The buyer may agree with a third party to pay the purchase price by him and to be subrogated in Meri-Lou’s claim. In the event of payment by a third party, which is subrogated in Meri-Lou’s claim, the retention of title as described in this article does not lapse.
13.6 In the case of subrogation, as referred to in paragraph 5, Meri-Lou will deliver the reserved property of the goods, of which the third party has paid the purchase price, to the subrogated third party. From the time of subrogation, the Buyer holds the items described for the subrogated third party.
13.7 Subrogation in the claim by and transfer of the reserved property to a third party as referred to in paragraphs 5 and 6 is without unabating the Buyer being able to sue Meri-Lou in the event that Meri-Lou fails in any way in the fulfillment of the agreements made between them.
Article 14 – Intellectual property rights
14.1. All intellectual property rights (including copyrights as well as registered and unregistered design rights) on drawings, photos, catalogues, models, designs, calculations and the like (hereafter: “the Materials”) made available to the Buyer by Meri-Lou remain to and will always rest with Meri-Lou and will never transfer to the Buyer. Where these Conditions refer to “deliver” or conjugations of this word, it cannot be inferred from this that the transfer of intellectual property rights is intended. The Buyer will only receive a non-exclusive, non-transferable and revocable right to use the Materials in unaltered form and for his own use, which never extends beyond the explicitly agreed use or the use that is made in the context of the implementation of the agreement it is reasonably required.
14.2. The Buyer is explicitly not allowed to copy and/or process Materials made available by Meri-Lou. If and insofar as Meri-Lou takes digital photos and makes them available to the Buyer, the use of these photos is only permitted for the purposes explicitly stated by Meri-Lou and use of them on any website is prohibited, unless Meri-Lou has explicitly given its prior written permission. Meri-Lou is entitled to withdraw its permission to use the Materials with immediate effect at any time, without becoming liable to pay damages to the Buyer, whereby the Buyer must then return the Materials to Meri-Lou immediately.
14.3. If and insofar as it is established in law that the goods delivered by Meri-Lou to the Buyer infringe any copyright and/or design rights of third parties in force in the Netherlands, Meri-Lou will take back the goods against compensation of the purchase price paid by the Buyer. The aforementioned compensation of the purchase price is the only remedy of the Buyer in this respect.
Article 15 – Termination and cancellation
15.1. Without unabating to the provisions of Article 6: 265 of the Dutch Civil Code, Meri-Lou has the right to terminate or dissolve the agreement concluded with the Buyer, without being obliged to pay compensation, if:
a. The buyer is declared bankrupt, files for bankruptcy or is requested;
b. Buyer applies for a (provisional) moratorium or goes into liquidation;
c. the assets of the Buyer or a part thereof are seized.
15.2. Unless full or partial cancellation is excluded in the conclusion of the agreement made with Meri-Lou, the Buyer has the right, within a period of six weeks after the conclusion thereof, but not within a period of fourteen days prior to the purchase by Meri-Lou intended delivery date, to cancel the agreement in whole or in part by means of a written statement addressed to Meri-Lou against a payment to Meri-Lou summed of 30% of the agreed purchase price corresponding to the part of the agreement cancelled. The cancellation only takes effect after the aforementioned payment has been received by Meri-Lou. Partial cancellation of an agreement to a residual order value of less than the minimum order value, as applied to the country in which the Buyer is established, or as specifically stated on the offer or order confirmation from Meri-Lou is not possible.
Article 16 – Applicable law and disputes
16.1. All offers and agreements of Meri-Lou are exclusively governed by Dutch law. The Vienna Sales Convention is expressly declared inapplicable.
16.2. All disputes, including those that are only considered as such by one party, arising from or related to the agreement to which the Conditions apply or concerning the Conditions themselves and its interpretation or implementation, both of factual and legal nature, will be tried by the competent court in Amsterdam, unless Meri-Lou prefers to submit the dispute to the competent court in the place of residence of the Buyer.
Article 17 – Inconsistency between Dutch text and translation
17.1 In the event of a conflict between the text of the Conditions in the Dutch language and that in another language, the Dutch version is binding.
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