Date: 1 june 2019
Article 1 – Definitions
In these general conditions of sale the following definitions apply:
NGCS: the user of these general conditions of sale, Next Generation Circular Solutions B.V. (“NGCS“) and/or its affiliated companies, with KvK no. 73392618, also trading as “Occony”.
Agreement: all agreements between NGCS and the Customer relating to the purchase of goods and/or services by the Customer from NGCS, and any other instruction given by the Customer to NGCS, as well as any act legal or otherwise related to the foregoing.
Consumer: a Customer who is a natural person not acting in the course of his or her professional practice or business.
Customer: any party to which NGCS supplies goods and/or for which it performs or has agreed to perform services, and any party that has given NGCS an instruction of another nature.
Day: a calendar day.
Product: furniture or furnishings, and related products, designed or produced by NGCS.
Article 2 – Applicability
- These general conditions of sale shall apply to all offers and quotations of NGCS and to the Agreement.
- NGCS is entitled to amend these general conditions of sale and shall inform the Customer thereof in writing. In the case that the Customer is a Consumer, the Customer is entitled to terminate the agreement.
- Any general conditions of the Customer are expressly excluded from applicability.
- If the substance of the Agreement deviates from the substance of these general conditions of sale, the substance of the Agreement shall prevail.
Article 3 – Offer; formation of the Agreement
- Quotations and price offers will always be without obligation and may be subject to cancellation or modification at any time.
- Any images or descriptions of Products that NGCS provides are for illustrative purposes only. While NGCS makes an effort to provide accurate information about the Products, there may be instances where the information is not accurate, complete or current. The Product that NGCS delivers to the Customer may vary from images or descriptions about the Product.
- An Agreement between NGCS and the Customer is considered to be concluded if NGCS has expressly accepted an order or instruction from the Customer in writing or has begun fulfilling that order or instruction.
Article 4 – Prices and payment
- The prices stated in the Agreements are in euros and inclusive of VAT and other governmental levies which apply at the time of the Agreement, and exclusive of costs for packing, loading, vertical and horizontal transport, unloading, installation, disposal, and possible costs for permits.
- The Customer shall pay 50% of the price on the first Day after signing of the Agreement. The Customer shall pay 40% of the price before the first day of delivery and/or instalment of the Products. The customer shall pay 10% of the price within fourteen (14) Days after deliver and/or instalment of the Products. For all three payments the Customer will receive an invoice.
- If the Customer is a Consumer, he shall never be obliged to pay more than 50% of the price before the date of delivery in accordance with article 26(2) in Book 7 of the Dutch Civil Code.
- All invoices of NGCS shall be paid within fourteen (14) Days of the invoice date, without any reduction or set-off. The latter impossibility of a reduction or set-off is not applicable if the Customer is a Consumer.
- In the event of late payment, the Customer will be in default by automatic operation of law. In that case, the Customer shall pay the following interest on the outstanding payment with effect as from the invoice date:
- 15% of the outstanding amount due from €40 to €2,500;
- 10% of the outstanding amount due over €2,500; and
- 5% of the outstanding amount due over €10,000.
NGCS may deviate from these late charges and percentages to the benefit of the Customer.
- The Customer shall pay all judicial and extrajudicial costs that NGCS may incur due to the fact that the Customer fails to fulfil its obligations properly and on time.
- The Customer has no right of suspension of any of its payment obligations.
- Articles 4.5 and 4.7 do not apply if the Customer is a Consumer.
Article 5 – Obligations of the Customer
- The Customer has a duty to cooperate with NGCS and to ensure the timely supply of any information, which is or may be necessary for the execution of the Agreement, including the address for delivery of the Product.
- The Customer is responsible for ensuring that any information supplied is accurate, complete and reliable (also if this information has been provided by or through another party). NGCS may at all times legitimately rely on the information provided by the Customer.
- The Customer is responsible for ensuring that he or she is able to receive the Products when the Products are scheduled for delivery, including that Products can pass through any doorways, lifts and stairways to enter the building and room where the Customer shall place the Products.
Article 6 – Delivery of goods; performance of services
- NGCS may make partial deliveries and issue partial invoices.
- The place of delivery shall be the address that the Customer provides NGCS.
- NGCS delivers only within the Netherlands and Belgium.
- Delivery terms and times quoted or agreed shall not be considered to be a final deadline.
- NGCS undertakes to execute the Agreement to the best of its ability, with due observance of the Customer’s legitimate interests, but shall not guarantee the achievement of any result that is envisaged.
- If, for any reason whatsoever, the Customer fails to accept delivery or timely delivery of goods offered for delivery in accordance with the Agreement, all costs incurred in vain by NGCS in connection with the offer and any additional costs of transport, custody and storage will be for the Customer’s account. The risk will also pass at the time at which NGCS offers the goods for delivery in accordance with the Agreement and the Customer fails to accept delivery for any reason whatsoever.
Article 7 – Retention of title
- NGCS shall retain title to all goods that it delivers until the Customer has fully paid all amounts that the Customer is required to pay to NGCS by virtue of the Agreement and/or other agreements, including any interest and expenses.
- Notwithstanding the provisions of article 7.1 above, the Customer may dispose of and deliver goods that were delivered subject to retention of title as part of its normal business conduct.
- In such case, the Customer shall inform third parties of NGCS’s retention of title.
- In the event of any failure in timely payment by the Customer, NGCS will be entitled to repossess the goods subject to retention of title on its own authority for the account of the Customer, regardless of where they are located. The Customer will be obliged to render its full cooperation for that purpose.
- Article 7.2, 7.3, and 7.4 do not apply if the Customer is a Consumer.
Article 8 – Complaints; expiry period
- The Customer shall inspect the goods immediately after delivery and shall verify whether the services have been rendered in a satisfactory manner. The Customer ensures the Products shall be used in accordance with the intended purpose of the Products at all times, failing which the Customer shall lose any right to raise a complaint with NGCS.
- Any complaint of the Customer regarding incorrect or incomplete fulfilment of an order, including but not limited to claims regarding damaged products, shall be submitted to NGCS in writing within fourteen (14) Days of the date on which the goods were or should have been delivered or the services were or should have been rendered. For Consumers, a time period of two (2) months applies if the complaint concerns the delivery of goods. If the complaint is not submitted to NGCS within this term, the Customer no longer has a claim against NGCS regarding incorrect or incomplete fulfilment of an order.
- The Customer shall include a clear and accurate description of the complaint. The Customer shall send its complaint to email@example.com.
- If NGCS considers a complaint to be well founded, it will, at its option, either repair or replace the delivered goods or rendered services, or, in case replacement or repair is impossible, credit the purchase price paid by the Customer in connection with the delivered goods or supplied services, and, as the case may be, take back the delivered goods.
- Lodging a complaint shall not relieve the Customer from its payment obligation.
Article 9 – Liability for damage and limitation period
- NGCS shall not be liable for any damage suffered on the part of the Customer, unless the damage results from intent or wilful recklessness exclusively on the part of NGCS’s executive staff.
- The Customer shall report the damage it has incurred to NGCS in writing as quickly as possible but within fourteen (14) Days after the damage was caused or became known. Any damage not reported within this term shall not be eligible for compensation.
- The liability of NGCS is limited to the amount invoiced in connection with the goods delivered by NGCS to the Customer or services rendered by NGCS to the Customer. All legal claims of the Customer against NGCS will in any event prescribe after one (1) year, to be counted from the date on which the relevant obligation fell due under the Agreement or the event occurred that caused the damage, whichever is sooner.
- All legal claims of the Consumer against NGCS relating to the delivery of goods prescribe after two (2) years to be counted from the date the Consumer lodged a complaint as referred to in article 8.
- The Customer will indemnify NGCS against all claims of third parties on any basis whatsoever in connection with goods delivered by NGCS to the Customer or in connection with services rendered by NGCS to the Customer, unless and insofar as the Customer demonstrates that the claim of a third party is in no way related to any circumstance that falls within the Customer’s scope of risk.
- NGCS shall not be liable for damage caused by shortcomings with integrated semi-finished products (not originally manufactured by NGCS). In the case of a justified complaint, NGCS will provide the supplier of the semi-finished products the opportunity to conduct a thorough investigation into the cause of the damage complaint.
- NGCS makes use of the warranty of its suppliers fot integrated semi-finished products. Obtaining information on warranty periods and associated provisions falls under the responsibility of the Customer.
- Article 9.1, 9.2, and 9.5 do not apply if the Customer is a Consumer.
Article 10 – Intellectual property
- All intellectual property rights in respect of the goods and services shall vest in NGCS. Without NGCS’s prior permission in writing, the Customer shall not reproduce, publish or imitate the goods in whole or in part.
- The Customer may trade in goods originating from NGCS only under the brand, logo, trade name and specifications under which the goods were delivered to the Customer. The Customer may not change the quality of the goods it purchased from NGCS, including their labelling, imprints and instructions.
- The Agreement does not contain any assignment of any intellectual property rights as part of the delivery of the goods to the Customer or the services rendered to the Customer and the related documents.
Article 11 – Confidentiality
- All information originating from which the Customer can reasonably assume to be confidential may not be disclosed. All confidential information that the Customer received from NGCS in the context of the establishment and execution of an Agreement and/or any other agreement with NGCS may not be disclosed. Information is confidential if (i) NGCS has informed the Customer that information is confidential, or (ii) confidentiality follows from the nature of the information. The Customer shall impose the same obligation on its employees or third parties that it has engaged in the performance of the Agreement.
- If a Customer breaches the obligation of Article 11.1, it shall be liable to pay NGCS an immediately due and payable penalty of EUR 50.000 (fifty thousand euros) for each infringement, without prejudice to NGCS’s right to recover the damage in full from the Customer.
- The confidentiality obligation referred to in clause 11.1 does not apply to information, which must be disclosed by the Customer pursuant to the law, any provision or regulation of a body approved by the government, or a binding and final decision of a court or other public authority.
Article 12 – Force majeure
- In the event of force majeure (article 6:75 DCC) on the part of either party, the performance of the Agreement shall be fully or partly suspended for as long as the situation of force majeure continues, without either party being liable for payment of any compensation to the other party. If the force majeure situation is reasonably expected to continue for more than three (3) months, or has already lasted for three (3) months, the other party may dissolve the Agreement by registered letter effective immediately and without recourse to the courts, without thereby creating any rights to compensation.
Article 13 – Suspension; dissolution
- Only NGCS may, at its option, fully or partly suspend the performance of the Agreement or dissolve the Agreement in full or in part by written notice without recourse to the courts (with immediate effect and without NGCS being liable for payment of any compensation) in the event that:
- the Customer fails to fulfil any of its obligations; under the Agreement and/or these general conditions of sale;
- the Customer applies for or is granted a suspension of payments, or applies for or is declared bankrupt;
- the Customer is placed under legal guardianship or administration;
- the Customer’s enterprise is sold or discontinued;
- permits which are required for the performance of the Agreement are revoked; or
- an attachment is levied on a significant part of the Customer’s operating assets.
- All claims, which NGCS may have or come to have against the Customer in the situations mentioned in clause 1, shall be immediately due and payable in full.
- If NGCS is entitled to suspend the performance of the Agreement in full or in part in accordance with article 13.1, NGCS is entitled to payment of the following percentages of the total price under the Agreement:
- 100% if suspension occurs within five (5) Days of the estimated date of delivery;
- 50% if suspension occurs between five (5) and seven (7) Days of the estimated date of delivery; or
- 25% if suspension occurs between seven (7) and ten (10) Days of the estimated date of delivery.
Article 14 – Assignment; outsourcing
- The Customer may not assign any of its rights and obligations under the Agreement or contract out the performance thereof to third parties without the prior written permission of NGCS.
- NGCS is entitled to engage persons who are not associated with it for the purpose of executing the Agreement.
- Where the Customer is not a Consumer, NGCS is not liable for damage or loss caused by acts or omissions of these other persons engaged by it.
- Without written approval from NGCS, it is not permitted to make changes, confirm attributes or perform work on NGCS products. Deviation from this will result in the expiration of the warranty immediately.
Article 15 – Invalidity of one or more provisions
- The invalidity of any provision of the Agreement and/or these general conditions of sale shall not affect the validity of the other provisions of the Agreement and/or these general conditions of sale.
- If and to the extent that any provision of the Agreement and/or these general conditions of sale is invalid, or is unacceptable in the given circumstances according to the criteria of reasonableness and fairness, a provision shall apply between the parties, which is acceptable considering all the circumstances.
Article 16 – Applicable law and jurisdiction
- The legal relationship between NGCS and the Customer is governed exclusively by Dutch law to the exclusion of the Vienna Sales Convention.
- Any dispute between NGCS and the Customer shall be settled by the competent court of Amsterdam.
Article 17 – Cleaning products
- Customer is aware that the products are made from natural materials. Products may only be cleaned with PH-neutral cleaning agents and are not allowed to be cleaned with with acid, corrosive or alkaline based cleaning agents. If there are doubts about the cleaning method, the Customer must seek advice from NGCS. NGCS is not responsible for damage caused by improper cleaning.
Article 18 – Natural products
- NGCS ses natural products for its goods; the natural characteristics and biological, physical and chemical properties must be considered by the Customer before purchase.
- Color and structure differences may arise through the use of natural products. The characteristics that belong to a natural product do not constitute grounds for liability or a complaint.
- Damage caused by exceeding the room temperature limit value as included in NEN-EN 7730 does not constitute grounds for liability or a complaint.
- For optimum retention of goods, the relative humidity in a room must be between 40% and 70%. Damage caused by exceeding these values is not covered by the warranty.
- The occurrence of bending, shrinking and/or small cracks anywhere on the product as a result of the loss of building moisture (after construction or renovation) does not constitute grounds for liability or a complaint.
- Inflections, color or structure differences that arise due to (direct) action of heat sources such as the sun, heating, heating pipes and fireplaces etc. do not constitute grounds for liability or a complaint.
- Damage caused by an incorrect composition of the (sub)floor or an insufficiently flat (sub-)floor do not constitute grounds for liability or a complaint.
- NGCS can never be held liable for damage caused by insects or other animal species. Products are not standardly treated with insect or animal repellent.
Article 19 – Final provision
- The English text of these general conditions of sale constitutes the sole authentic text. In the event of any discrepancy between the English text and a translation into a foreign language, the English text shall prevail.