GENERAL TERMS AND CONDITIONS OF SALE
LEMETEX IMPORT/EXPORT B.V., also trading under the name of UNIQUE LIVING,
LEMETEX DIRECT SALES B.V., their successors by universal title and all companies and enterprises affiliated or associated with them or their successors in title.
Filed on 11-08-2017 with the registry of the Court of Gelderland under registration number 29/2017
Article 1 – Definitions
- In these terms and conditions the following terms are taken to mean:
Client: every natural person or legal entity, who/which is registered in the commercial register of the Chamber of Commerce in the Netherlands or a foreign commercial register and who/which has a commercial account created with Lemetex and/or whom/which Lemetex enters into an agreement with, or as the case may be to whom/which Lemetex makes an offer;
Lemetex: the private limited company Lemetex Import/Export B.V., also trading under the name of Unique Living, Chamber of Commerce number 17198581, and the private limited company Lemetex Direct Sales B.V., Chamber of Commerce number 17198578, both established at Valeton 12 in (5301 LW) Zaltbommel, hereinafter also referred to as: “Lemetex”, their successors by universal title and all companies and enterprises affiliated or associated with them or their successors in title;
agreement: every agreement coming into effect between Lemetex and the Client, each amendment thereof or addendum thereto, as well as all legal acts for the preparation and for the performance of that agreement;
product: each of the goods offered, to be delivered or delivered by Lemetex, or a product that is equal thereto according to public opinion;
terms and conditions: these general terms and conditions.
Article 2 – Applicability
- These terms and conditions apply to every offer, tender and agreement between Lemetex and the Client in so far as these terms and conditions have not expressly and in writing been derogated from by parties.
- The applicability of any purchase conditions or other terms and conditions of the Client is expressly rejected.
- If one or more provisions of these terms and conditions might at any time, wholly or in part, be null and void or be voided, the remaining provisions of these terms and conditions will remain fully applicable. Lemetex and the Client will in that case enter into consultation in order to agree on new provisions to replace the void or voided provisions, whereby the purpose and effect of the original provisions will be taken into consideration as much as possible.
- If there is any uncertainty with regard to the interpretation of one or more provisions of these general terms and conditions, the interpretation must be in the spirit of these provisions.
- If a situation arises between parties that has not been regulated in these terms and conditions, this situation must be assessed in the spirit of these terms and conditions.
- If Lemetex does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof are not applicable, or that Lemetex to any extent would lose the right in other cases to require strict compliance with the provisions of these terms and conditions.
Article 3 – The offer
- Every offer made by Lemetex on the website is without obligation. An offer, tender or quotation will only apply as an invitation to the Client to place an order and will not bind Lemetex, unless expressly stated otherwise in writing.
- An offer is valid for a period of 30 days after the date thereof.
- Apparent mistakes or errors in the offer will not bind Lemetex.
- All statements made by Lemetex regarding measurements, weights, composition and/or other specifications of the products have been made with due care, but Lemetex can nevertheless not guarantee that no deviations will occur with regard to this. Samples that have been shown or provided are only indicative of the products concerned. Deviations from the dimensions and/or the weight may occur and will be accepted by the Client. If the Client demonstrates that the delivered products deviate to such an extent from the statements made by Lemetex, or from the samples, that the Client cannot reasonably be obliged to purchase these, the Client will have the right to terminate the agreement. However, this will only be for the part for which this termination is reasonably necessary, and this will not be the case until after the Client has given notice of default to Lemetex, and has granted Lemetex a period of at least 14 days to eliminate the reason for the (partial) termination.
- An offer will lapse if the product the offer relates to has become unavailable in the interim.
- An agreement will only be concluded if and in so far as Lemetex has accepted an order from the Client, or if and in so far as Lemetex executes an order.
- The request will be processed into an order within 1 working day after the confirmation of the order by Lemetex.
- The confirmation of the order by Lemetex will be deemed to be correct, unless the Client objects in writing against this within 8 days after the date of the confirmation of the order.
Article 4 – The agreement
- The agreement comes into effect, subject to the provisions of subclause 2, at the time of acceptance by the Client of the offer and the fulfilment of the terms and conditions set out thereby.
- If the acceptance (whether or not on minor points) derogates from the supply included in the offer, Lemetex will not be bound thereto. In that event the agreement will not be concluded in accordance with this derogating acceptance, unless Lemetex states otherwise.
- If the Client has accepted the offer by electronic means, Lemetex will promptly confirm the receipt of the acceptance of the offer by electronic means.
- If the agreement has been concluded by electronic means, Lemetex will take suitable technical and organisational measures for the protection of the electronic transfer of data and Lemetex will ensure a secure web environment.
- Lemetex may – within the statutory parameters – make enquires into the ability of the Client to fulfil the payment obligations, as well as into all those facts and factors that are important for entering responsibly into a distance contract. If, on the basis of this research, Lemetex has good grounds not to enter into the agreement, Lemetex will be entitled to refuse an order or request or to attach special conditions to the performance thereof. Lemetex will be at all times entitled to require advance payment, or provision of security from the Client.
- Every agreement is entered into on the suspensive condition of sufficient availability of the products and/or services concerned.
- Amendments of and addendums to any provision in an agreement and/or these terms and conditions can only be agreed in writing.
- If an amendment and/or addendum as referred to in 4.7 is agreed, this amendment or addendum will only apply to the agreement concerned.
Article 5 – Price
- All prices stated by Lemetex are ex works from Lemetex’s place of business (Incoterms 2010), expressed in euros and excluding VAT, unless expressly agreed otherwise. The prices stated in the offer of the products on the website are excluding VAT.
- Unless expressly agreed otherwise, the costs of packaging and dispatch, import and export duties and excise as well as all other duties or taxes imposed or levied with regard to the products and the transport thereof will be at the Client’s expense.
- Unless expressly agreed otherwise, Lemetex may charge on every change in the factors that have an impact on Lemetex’s costs referred to in article 5.2, including purchase prices, exchange rates, import and export duties and other levies owed for import or export, insurance rates, freight rates, and other charges or taxes to the Client, in so far as no mandatory legal provision prevents this. The delivery date referred to in articles 5.1 and 5.2 is the determining factor for the pricing. Lemetex will be permitted in any event to charge on the price changes referred to above if at least 3 months have expired between the agreement and the price increase, without the option of terminating the agreement.
- If a Client from EU countries purchases a product from Lemetex with a commercial account, 0% VAT will be charged related to intra-Community deliveries based on article 138 of the EU VAT Directive 2006/112/EC.
Article 6 – Payment
- Unless agreed otherwise, the amounts owed by the Client must be paid within 30 days after placing the order to the bank account number stated by Lemetex.
- Lemetex can jointly invoice the Client on every last day of the month for all purchases made in the month concerned. The Client must pay these invoices within 30 days after their date to the bank account number stated by Lemetex. The Client will be obliged to notify Lemetex promptly of inaccuracies in the payment details provided or set out.
- Lemetex will be entitled to set a maximum to the total amount of the monthly payment in arrears under subclause 2 of this article.
- All amounts charged to the Client must be paid to Lemetex without reduction, suspension, withholding, or setoff. Any correction required by the Client as a result of differences in price or quantity will be assessed by Lemetex and credited if necessary. This will not affect the Client’s obligation to pay, within the period set for this purpose, the amount to Lemetex that was initially charged. Objections to the amount of an invoice will not suspend the payment obligation.
- Lemetex has the right to conduct a credit check in advance. If this results in a negative opinion, Lemetex will be entitled to advance payment, or to require that the Client provides security, also including the terms and conditions that are usual in the trade for documentary credit such as irrevocable letters of credits, cash against documents or cash on delivery, in the absence of which Lemetex will not proceed with delivery. In the event of such an advance payment, the delivery period will commence at the time when the payment is received by Lemetex.
- In the event of exceeding of the payment term, Lemetex will be entitled to charge default interest of 1% per month over the due and payable amount, unless the statutory commercial interest rate is higher, in which event the statutory commercial interest rate will be owed. The interest over the due and payable amount will be calculated from the time when the Client is in default until the time of payment in full of the owed amount.
- If the Client is in default or omission of the fulfilment of the Client’s obligations (in a timely manner), Lemetex will be entitled to charge all judicial and extrajudicial costs reasonably incurred with a minimum of € 40 to the Client.
Article 7 – Retention of title
- All goods and services delivered by Lemetex in the context of the agreement remain the property of Lemetex until the Client has properly fulfilled all obligations under the agreement(s) concluded with Lemetex, including payment of the purchase price, any surcharges, interest, taxes, costs and compensation owed pursuant to these terms and conditions or the agreement.
- Goods delivered by Lemetex, which pursuant to subclause 1 are subject to retention of title, may not be sold on and may never be used as a means of payment. The Client will not be entitled to pledge the goods subject to retention of title or to encumber these in any other manner. This prohibition of disposal, pledging and encumbrance has express effect under the law of property. It is therefore not possible under the law of property to transfer the ownership of the goods, to pledge or to otherwise encumber the goods.
- The Client must always do all that can reasonably be expected of the Client to secure the ownership rights of Lemetex.
- If third parties levy attachment on the goods delivered subject to retention of title, or as the case may be want to establish, or enforce, rights thereto, the Client will be obliged to immediately inform Lemetex thereof.
- In the event that Lemetex wishes to exercise the ownerships rights referred to in this article, the Client hereby provides in advance unconditional and irrevocable permission to Lemetex and to third parties to be appointed by Lemetex to enter all locations where Lemetex’s property is situated and to take these goods back. In the event of attachment, (provisional) moratorium or bankruptcy, the Client will immediately inform the bailiff levying the attachment, the administrator, or the receiver of Lemetex’s ownership rights.
Article 8 – Delivery and execution
- The delivery of the products will take place in conformity with the provisions with regard to the costs of delivery and transfer of risk in accordance with the terms and conditions that are usual in international trade, Incoterms 2010 or the subsequent version(s) thereof applicable at the time of the order.
- Unless agreed otherwise the deliveries will take place ex works from Lemetex’s place of business and the delivery and the transfer of risk of the products will always take place at the location and the time at which the products are ready for dispatch to the Client.
- The delivery period stated by Lemetex is based on the circumstances applicable for the supplier at the time of concluding the agreement and, in so far as depending on goods and services from third parties, on the data provided by these third parties to Lemetex. Lemetex will observe the delivery period as much as possible, but this period will not be considered to be a final deadline.
- The Client has no right to any compensation in the event of exceeding of the delivery period. In that event the Client will not have any right to termination of the agreement either, unless the exceeding of the delivery period is such that it cannot reasonably be required from the Client to maintain the part concerned of the agreement. In that event the Client will be entitled to terminate or cancel the agreement for the part for which this is strictly necessary, provided that the Client has informed Lemetex of this in writing, and without prejudice to Lemetex’s right to still deliver the products concerned to the Client within 14 days after receipt of the notification.
- If the delivery of an ordered product proves to be impossible, Lemetex will endeavour to make a replacement product available.
- Lemetex aims to deliver the products as much as possible in one delivery to the Client. However, it is possible that the order is delivered in several deliveries. Lemetex will have the right at all times to deliver in parts and to invoice accordingly.
- The items will be delivered to one single address, unless agreed otherwise.
- If the Client does not take delivery of the products, or does not do so in a timely manner, the Client will be in breach of contract without any notice of default. In that event Lemetex will be entitled to store the products at the Client’s expense and risk or to sell these products to a third party. The Client will continue to owe the purchase price, plus the interest and costs (due by way of compensation), reduced by the net proceeds of the sale to the third party where applicable.
- A call-off order is taken to mean an order whereby the time of delivery has been made dependent, by the Client, on delivery on a call-off basis.
- In the event of a call-off order Lemetex will have the opportunity to deliver the order for no more than 30 days, unless agreed otherwise. This period commences on the first day following the day on which Lemetex receives a call-off order in writing.
- In the event of a late call-off order the Client will have the right to an additional call-off deadline of 7 days, commencing on the first day following the day on which Lemetex has sent a demand in writing to the Client. Lemetex can stipulate, in derogation from this provision, that the call-off deadline set out will be a final deadline. In that event the Client will be in default by the mere expiry of this unused period. In the event of a late call-off order the delivery period will be extended by 14 days.
- In the event that the Client also has not called-off within the additional period, Lemetex may deliver the products to the Client, or as the case may be at least in the event that the Client refuses to accept the delivery, store the products at the Client’s expense and risk, including the risk of reduction of quality, in its warehouses or elsewhere. Such storage will be considered to be the delivery of the products. The Client will be promptly informed of this storage in writing, accompanied by the invoice with regard to this delivery.
Article 9 – Right of complaint and right of withdrawal
- The Client will be obliged to inspect the delivery for defects immediately after the time when the products are made available to the Client. The Client must thereby inspect whether the quality and/or quantity correspond with what has been agreed. Complaints regarding visible defects and/or delivery not in conformity with the sample must be submitted no later than within 14 days after the delivery, at the risk of forfeiting all rights.
- The Client will be obliged to submit any complaints with regard to the purchased products in writing to Lemetex within a reasonable period, but no later than within 14 days after the delivery.
- If a defect is reported later, the Client will no longer have any right to repair, replacement or compensation.
- The Client will deal with the product and the packaging with due care during this period. The Client will only unpack or use the product to the extent and in so far as necessary to be able to assess whether the Client wishes to keep the product. If the Client makes use of the right of withdrawal, the Client will return the product together with all accessories and – if reasonably possible – in the original condition and packaging to Lemetex, in conformity with the reasonable and clear instructions provided by Lemetex.
- If the Client complains in a timely manner, this will not suspend its payment obligation. In that event the Client also remains obliged to purchase and pay any other goods ordered.
- Unless agreed otherwise, the return consignment by the Client can exclusively take place after prior agreement in writing with Lemetex. Unless agreed otherwise, the return consignments will take place at the Client’s expense and risk.
Article 10 – Conformity and guarantee
- Lemetex guarantees towards the Client during 3 months after the delivery that the products are in conformity with the agreement and the specifications set out therein, the reasonable requirements of sound condition and/or usability and the reasonable quality requirements which are usual in the sector, and the statutory provisions and/or government regulations which are in existence on the date of the coming into effect of the agreement.
- If the producer provides a manufacturer’s guarantee, the Client can make claim to the manufacturer’s guarantee offered by the producer of the products. If Lemetex delivers products to the Client which Lemetex has acquired from its suppliers, Lemetex will never be bound to a further-reaching guarantee or liability vis-a-vis the Client than that to which Lemetex can make claim to vis-a-vis its suppliers.
- If the Client has submitted a complaint in a timely and correct manner and has sufficiently demonstrated, in the opinion of Lemetex, that the products are not of the agreed quality, Lemetex will have the choice to either once again deliver free of charge the products that appeared to be inferior, against the return of the products that appeared to be inferior, or to provide the Client with a reduction of the purchase price to be determined in mutual consultation. By performing one of the obligations referred to above Lemetex will be fully discharged with regard to its guarantee obligations, and Lemetex will not be obliged to any further payment (of compensation).
- The guarantee does not cover any defects of the products arisen as a result of usual wear and tear, or due to damage which is the result of circumstances beyond the control of Lemetex, including weather conditions, processing by the Client or the end users, impact of sun and light and/or damage arisen during storage or transport by the Client.
- Every form of guarantee will lapse if the item has been used incorrectly or carelessly.
Article 11 – Liability
- Lemetex will only be liable for direct damage. Liability for indirect damage, including lost profit, consequential damage, financial loss, lost savings and loss due to business interruption, is expressly excluded.
- Direct damage is exclusively taken to mean the reasonable costs to ascertain the cause and the extent of the damage, in so far as the ascertaining relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to have Lemetex’s defective performance comply with the agreement, in so far as this can be attributed to Lemetex, and reasonable costs incurred to prevent or limit the direct damage as referred to in these general terms and conditions.
- Any liability for direct damage on the part of Lemetex towards the Client, on any basis whatsoever, is limited per incident (whereby a connected series of incidents is to be regarded as one single incident) to the amount for which Lemetex is insured related thereto, and in any event to the invoice amount paid by the Client to Lemetex for the (partial) delivery concerned excluding VAT.
- Lemetex will not be liable for any damage of whatever nature, caused by Lemetex having proceeded from incorrect and/or incomplete data provided by the Client.
- The limitations of liability included in this article do not apply if the damage can be attributed to intent or gross negligence on the part of Lemetex or its managerial staff.
Article 12 – Indemnity
- With the exception of gross negligence or intent on the part of Lemetex or its managerial staff, the Client will indemnify Lemetex against all claims by third parties, on whatever basis, with regard to compensation of damage, costs or interest, related to the products or ensuing from the use of the products, or arisen due to or ensuing from the agreement concluded with the Client.
- If any claims were to be made on that basis by third parties against Lemetex, the Client will be obliged to assist Lemetex at law and otherwise, and to promptly do all that can be expected from the Client in that event. If the Client were to remain in default of taking adequate measures, Lemetex will be entitled, without notice of default, to proceed with this itself. All costs and damage on the part of Lemetex and third parties arisen through this will be fully at the Client’s expense and risk.
Article 13 – Force majeure
13.1 Lemetex will not be obliged to fulfil any obligation towards the Client if Lemetex is prevented from this as a result of a circumstance that is not attributable to fault, or Lemetex is not accountable for by law, a legal act or according to generally accepted standards.
13.2 Force majeure includes in these general terms and conditions, in addition to that which is included in the law and case law as to that, all external causes, foreseen or unforeseen, which are beyond the control of Lemetex, but as a result of which Lemetex is unable to fulfil its obligations. Included in these circumstances are inter alia: industrial actions and lockouts, delay or other problems in the production by Lemetex or its suppliers or in its own transport or transport arranged by third parties and/or measures by any government agency, as well as the absence of any permits to be acquired from authorities. Lemetex also has the right to rely on force majeure if the circumstance that prevents (further) performance of the agreement occurs after Lemetex should have fulfilled its obligation.
13.3 Lemetex may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than 2 months, each of the parties will be entitled to terminate the agreement. In the event of force majeure the Client has no right to any payment (of compensation), even if Lemetex might have gained any advantage as a result of the force majeure.
13.4 In so far as Lemetex at the time of the occurrence of the force majeure has already partially fulfilled its obligations under the agreement or will be able to fulfil these, and the part already fulfilled or to be fulfilled has an independent value, Lemetex will be entitled to invoice separately for the part already fulfilled or to be fulfilled. The Client will be obliged to pay this invoice as if there were a separate agreement.
Article 14 – Termination
14.1 If the Client does not properly or does not within a period set out or otherwise in a timely manner fulfil any obligation which might ensue for the Client under any agreement, the Client will be in default and Lemetex will be entitled without notice of default or judicial intervention:
– to suspend the performance of this agreement and agreements directly related thereto until payment has been sufficiently secured; and/or
– to terminate, wholly or in part, the agreement or agreements directly related thereto;
all this without prejudice to Lemetex’s other rights under whatever agreement with the Client and without Lemetex being obliged to pay any compensation.
14.2 In the event of (provisional) moratorium, bankruptcy, cessation, or liquidation of the Client’s business, all agreements with the Client will be terminated by operation of law, unless Lemetex informs the Client within a reasonable period that Lemetex requires specific performance of (a part of) the agreement(s) concerned, in which event Lemetex will be entitled without notice of default:
- to suspend the performance of the agreement(s) concerned until payment has been sufficiently ensured; and/or
– to suspend any of its obligations vis-a-vis the Client;
all this without prejudice to Lemetex’s other rights under whatever agreement with the Client and without Lemetex being obliged to pay any compensation.
14.3 In the event that an incident occurs as referred to in (i) 14.2 or (ii) 14.1, (i) all Lemetex’s claims against the Client will be immediately due and payable in full and Lemetex will be entitled to take back the products concerned. In that event Lemetex and Lemetex’s authorised representative(s) will be entitled to enter the Client’s sites and buildings in order to take possession of the products. The Client will be obliged to take the necessary measures in order to enable Lemetex to exercise its rights.
14.4 The applicability of Book 6, article 278 of the Dutch Civil Code is excluded if Lemetex terminates any agreement with the Client, or otherwise reverses this as referred to in Book 6, article 278, paragraph 2 of the Dutch Civil Code.
Article 15 – Transfer of rights and obligations
15.1 Lemetex will be permitted to transfer rights and obligations described in any agreement with the Client to third parties. In the event that obligations on the part of Lemetex are transferred Lemetex must inform the Client of this in advance, and the Client will have the right to terminate the agreement with regard to the future from the date on which the transfer will take place. Lemetex will not be obliged to pay any compensation with regard to this.
15.2 The Client will not be entitled to transfer the Client’s rights and obligations on the basis of an agreement to any third party without prior permission in writing from Lemetex.
Article 16 – Applicable law and disputes
- The law of the Netherlands exclusively applies to the agreements between Lemetex and the Client, which these terms and conditions are related to, with the exclusion of rules of international conflict of laws, even if an obligation is fulfilled, wholly or in part, abroad.
- All disputes ensuing from offers or agreements, by whatever name, will be exclusively submitted to the competent court in Gelderland (the Netherlands).