Article 1: General points

1.1 These general conditions apply to the formation and execution of all obligations between those companies (including Markant Nederland B.V. and Markant International B.V.) with registered offices in the Netherlands that are part of the Markant Group, which has its registered office in Houten, hereinafter referred to as ‘Markant’, and its buyers or clients, hereinafter referred to as ‘the Buyer’, that have arisen either as the result of an agreement or the law.

1.2 Departures from, additions to and stipulations that are contrary to these conditions are only binding for Markant if and in so far as they are expressly accepted by Markant in writing.

1.3 If any provision of these conditions turns out to be contrary to a statutory regulation then this provision will be read in such a way that the inconsistency is eliminated. Should this prove to be impossible, then this provision will remain inapplicable, whereby the remaining provisions will continue to be applicable.

1.4 Markant expressly rejects the applicability of the Buyer’s general conditions. The term ‘items’ in these conditions will also be deemed to include the delivery of such services as project support, project consultancy, assembly, programming and maintenance. The term ‘Buyer’ is also deemed to refer to the client.

1.5 Markant is entitled to revise and/or amend the content of these general conditions. The Buyer will be informed about this by e-mail in a timely way.

Article 2: Offer and acceptance

2.1 All quotations and offers made by or on behalf of Markant – including if made by a representative and irrespective of whether this party was authorised to do so – for the delivery of items or the performance of services howsoever quoted are without obligation and may be revoked at any time.

2.2 An order may be placed via Markant’s webshop. The Buyer must have a customer reference number to use the webshop. When registering as a user at the webshop, the Buyer will be given a unique user name and password. The order is entered directly into Markant’s system and is checked by Markant. An order confirmation follows automatically.

2.3 All quotations and offers are valid for 30 days. If not accepted by this deadline then the offer/quotation lapses. If the offers/quotations are accepted after this 30-day deadline then they may now have been amended, including but not limited to changes in pricing.

2.4 Agreements are formed by written (i.e. by post or e-mail) confirmation by Markant.

2.5 If Markant has not confirmed the agreement in writing then the mere fact of each commencement of execution or delivery or of the performance of a service is sufficient proof of the existence and date of the agreement.

2.6 Markant is entitled to revoke an offer made to a Buyer that the latter has accepted, provided that Markant does so no more than two working days after acceptance, if Markant does not wish to enter into the agreement for reasons of its own.

2.7 Changes to the order that are the Buyer’s fault may have consequences for the order. Any costs involved in this will be borne by the Buyer. Changes must be reported to Markant as soon as possible after they become known. If any changes are reported to Markant too late, then Markant reserves the right to disregard the changes when carrying out the order.

Article 3: Price and delivery

3.1 All prices quoted in the price list are recommended retail prices that exclude both VAT and the costs of dispatch, transportation and insurance, unless expressly stated otherwise. Service costs and signing-on costs are quoted as net prices exclusive of VAT. Markant reserves the right to amend the price list each year as necessary. After amendment, all previous price lists will be cancelled, apart from the orders that are already current.

3.2 For deliveries in the Netherlands, Belgium and Luxembourg (Benelux), the prices are quoted carriage paid Delivered at Frontier, unless stated otherwise in Markant’s sales price list, offer or order confirmation.

3.3 Markant is entitled to pass on to the Buyer price increases, including in prices of raw materials, the introduction or increasing of taxes and/or other levies, that occur after the agreement was formed, irrespective of whether they were foreseeable.

3.4 Unless otherwise agreed, Markant delivers items ‘ex works’. The delivery of items by Markant to the Buyer takes place at the time when the purchased items are placed at the Buyer’s disposal.

3.5 Orders will only be delivered if between them the order amounts and the invoices outstanding at that time do not exceed the individual credit line or the credit term. These limits are set using credit information and past payment history.

3.6 Place of delivery is the place stated in the order confirmation. This may only be departed from if this has been discussed beforehand with Markant and confirmed in writing.

3.7 If Markant handles the transportation, then the costs of transportation and the risk are for the Buyer’s account from the loading onwards.

3.8 Markant is at all times entitled to deliver a divisible order in two or more deliveries and to charge for these partial deliveries immediately.

3.9 Markant reserves the right to deliver items cash on delivery.

3.10 Unless expressly agreed otherwise in writing, sold items are for the Buyer’s risk from the moment of delivery, the above with due observance of the provisions of Article 6 in respect of retention of title.

3.11 Markant has an extensive inventory of property furniture available. If in stock, orders will be delivered within ten working days (with a couple of exceptions). Each working day, deliveries are made to another postcode area in the Benelux region (this being known as the ‘standard route day’). If the Buyer’s furniture is not in stock then the delivery time is 6-8 weeks.

3.12 Deliveries can be made outside the standard route day – the costs of this will be quoted upon request. If possible, deliveries will be made using a parcel service, in which case the order will be delivered within two working days. A surcharge is charged for deliveries outside the Benelux region, which surcharge depends on the country and the carrier used. Special requests can be complied with by agreement.

3.13 Agreed delivery deadlines can never be deemed to be strict deadlines. If the agreed deadline is exceeded then Markant will consult with the Buyer.

3.14 The Buyer is obliged to take delivery of the purchased items as soon as they are made available to him or as soon as they are delivered to him in line as agreed upon.

3.15 If the Buyer refuses to take delivery or is negligent in providing information or instructions that is/are needed for delivery, then the items will be stored at the Buyer’s risk, who will owe all additional costs, including in all cases the storage costs.

3.16 In principle, Markant will never take back delivered items; in the event that Markant for whatever reason expressly permits the Buyer to return any item, then this item will in all cases be transported at the Buyer’s risk, with loading, transportation, storage and any additional costs arising from them being borne by the Buyer.

3.17 Orders with a net value of more than € 300.00 excluding VAT will be delivered to the Buyer’s home carriage paid. Below this threshold, a contribution of € 29.50 will be charged for order processing costs. Markant understands the term ‘delivery’ to mean: delivery on the mainland, to the ground floor, to behind the first door, based on delivery by a single driver.

3.18 Markant reserves the right to have work performed by third parties.

Article 4: Project support and consultancy

4.1 The costs of making CAD drawings, collages and presentations, as well as the costs of project supervision, will be borne by the Buyer.

4.2 The advice, presentations, instructions etc. are given by Markant using its best knowledge. However, Markant does not warrant that the Buyer will achieve the result desired by the latter from this.

Article 5: Complaints

5.1 Without delay after delivery, the Buyer must examine the item he has bought (or arrange for this to be done) with regard to quantity, type, soundness and other qualities and must report any differences to Markant in writing (by post or e-mail) within eight days of delivery, or else no later than eight days after any differences could reasonably have been established, with simultaneous dispatch of a confirmation in writing (by post or e-mail). Minor deviations in colour, structure of the material or final finishing are no grounds for making a complaint.

5.2 In all cases, the evaluation of whether the item complies with that which was agreed for it will be made according to the condition it is in at the time of delivery.

5.3 The Buyer will keep unused those items that he has submitted a complaint about at a suitable location at Markant’s disposal, who will also be allowed to promptly access the location(s) where the items are stored. The Buyer is not permitted to send these items back without Markant’s consent. If this is done after all, then the costs of this will be borne by the Buyer.

5.4 If the Buyer has failed to submit a complaint by the deadline set in Article 5.1 or has failed to confirm the complaint in writing or has failed to comply with that laid down in the previous paragraph, then the Buyer will be deemed to have accepted the delivered item(s) as being sound in all respects and with all rights to claim in this regard coming to an end.

5.5 When goods are collected, it is no longer possible to submit a complaint once they have been loaded up. Accordingly, the goods have to be checked on-the-spot before collection takes place. Goods that are not collected in line with the arrangement made will be dispatched using the normal routing.

5.6 Products that are not kept in stock will not be taken back. Markant can only accept returns if they are provided with a credit order number issued by Markant that is based on the original invoice, and with proper packaging.

5.7 Markant must have received the goods no later than 10 working days after receipt of the confirmation that they are being returned. If the goods are not packed, then Markant reserves the right to charge additional credits and/or packing costs.

5.8 All rights to submit a complaint come to an end when some or all of the delivered items have started being used.

Article 6: Retention of title

6.1 Ownership of the items sold by Markant to the Buyer and delivered to him does not pass to the Buyer until (and then as soon as) the Buyer has fully fulfilled all his obligations towards Markant.

6.2 The obligations referred to in Article 6.1 are also deemed to include all compensation, including interest, penalties and costs, that the Buyer owes or will owe Markant in respect of the Buyer’s failure to fulfil these obligations or its failure to do so properly or on time.

6.3 The Buyer undertakes to insure, and keep insured, the delivered items under retention of title against fire, against damage from explosion or water, and against theft, to pledge all his claims on insurers to Markant and to provide Markant with the insurance policy in question for the latter’s perusal.

6.4 Those items that Markant delivers under retention of title may only be resold by the Buyer in the normal conducting of a business, in which case the Buyer is in its turn obliged to deliver this items subject to the proviso of retention of title.

6.5 The Buyer is prohibited from pledging, or from establishing any other right on, those items that Markant has delivered under retention of title.

6.7 If the Buyer fails to fulfil his obligations as referred to in Article 6.3 and/or Article 6.4 or if there is a reasonable fear that he will fail to do so, then Markant is entitled to remove the delivered items from the Buyer of from third parties who are holding the item for the Buyer or to arrange for this removal, which removal the Buyer is obliged to fully cooperate with, in the absence of which he will incur a penalty in favour of Markant in the amount of 10% (ten percent) of the sum that he owes for each day that he continues to fail. The sum owed by the Buyer continues to be due and payable in full.

Article 7: Liability

7.1 Markant will never be liable for any defect in a delivered item that is the result of any defect in a product delivered to Markant by a third party.

7.2 In the event of Markant being liable for any defect that arises during any act that Markant has performed or that can be attributed to Markant, without the circumstance mentioned in Article 7.1 applying, then this liability will be limited to the amount of the payout made under Markant’s insurance policy, if and in so far as this liability is covered by its insurance policy; if the insurance policy does not make a payout or the claim is not covered by the insurance policy then the liability is limited to the net invoice amount of the delivery in question or service performed, but in any case to a maximum amount of € 2,500.00 (two thousand five hundred euros).

7.3 In the event of defects in the items delivered by or in services provided by Markant, the Buyer must claim from Markant no later than eight days after he identified the defect or reasonably could have identified it.

7.4 Any claim for compensation arising from Markant’s liability for defects in delivered items or performed services will become time-barred one year after the date of delivery.

7.5 Markant’s liability for losses that are the result of acts, errors or negligence on the part of persons (including parties) who are not in Markant’s employ but whose services Markant is using will be limited in accordance with the provisions of Article 7.2.

7.6 If a person as referred to in Article 7.5 is claimed against in respect of losses that are caused by him during the execution of a task for Markant, then he will be entitled to invoke any limitation or exclusion of liability stipulated by Markant in respect of Markant’s co-contracting party.

7.7 Markant can never be held liable for losses and/or defects in delivered items or performed services that have arisen as the result of incorrect and/or incomplete information provided by or on behalf of the Buyer.

7.8 Markant can never be held liable for consequential loss/damage suffered by the Buyer.

Article 8: Cancellation and termination

8.1 The Buyer’s authority for extrajudicial termination due to a shortcoming on Markant’s part is excluded.

8.2 An agreement will be deemed to have been terminated by operation of law if and as soon as the Buyer without good grounds has refused to take delivery of the sold items, this without prejudice to Markant’s right to their value and to compensation. Markant likewise has the right to terminate the agreement if the Buyer is declared insolvent, has applied for a moratorium or has requested that the WSNP Act (the Dutch Debt Management (Natural Persons) Act) be applied. In this case, Markant does not owe the Buyer any compensation. Any sums already paid by the Buyer to Markant will continue to be owed, however.

8.3 The cancellation of an order (i.e. before it is delivered) by the Buyer is not possible, unless expressly agreed otherwise. If the Buyer cancels an order in whole or part despite this, then he is obliged to comply with the following conditions:

– Specials cannot be cancelled or else will be charged on at a rate of 100%;

– The Buyer will owe 20% of the net invoice amount as cancellation costs (with a minimum of € 19.50) within 5 working days of sending the order confirmation;

– The Buyer will owe 35% of the net invoice amount as cancellation costs (with a minimum amount of € 19.50) 5 working days after sending the order confirmation. At that time, Markant has placed the entire order with the suppliers;

– If the delivery date is changed, then storage costs will be charged.

8.4 Return shipments and crediting will only be accepted if Markant has declared beforehand that it consents to the return shipment and if the return shipment is made carriage paid. In the case of crediting, costs in the amount of 35% of the net invoice amount will be charged (with a minimum of € 19.50). This is merely a contribution to the actual costs and is earmarked for the costs of administration, logistics and examination.

8.5 Return shipments that are picked up by Markant will incur an additional charge of at least € 19.50. Goods must be shipped back in an original packaging. If goods have to be repacked because no proper packaging is on hand, then Markant will charge at least € 19.50 for packing costs. Specials are excluded from crediting.

Article 9: Comensation

9.1 Without prejudice to the right to compensation by virtue of a shortcoming in its fulfilment, the Buyer is obliged to compensate Markant for all additional losses that the latter has suffered in respect of the Buyer’s shortcoming.

9.2 The losses as referred to in Article 9.1 will in any case include:

-interest in the amount of 1% per month on the unpaid portion of claims, from the day that the Buyer’s default commences to the day on which payment is made in full;

-all costs of collection after notice of default, including the costs of returning bills of exchange, receipts, protests, as well as for the extrajudicial and judicial payment collection costs that in Markant’s reasonable opinion are necessary, which include the costs of legal assistance that are set by the Dutch Act to regulate extrajudicial collection costs.

Article 10: Guarantee

10.1 If Markant has given or is deemed to have given the Buyer any guarantee or other right relating to the sold item, then this right will not pass to the party who acquires the item – whether in processed or unprocessed form – from the Buyer under particular title.

10.2 Products that due to a manufacturing fault become defective during the guarantee periods stated in the Markant price list will be repaired free of charge. Markant will handle the repair of the defective product. The repair work will be carried out in Markant’s warehouse, unless the parties agree otherwise.

10.3 In the case of deliveries made outside the Benelux countries and the islands, the product in question must be submitted to Markant Services in Nieuwegein. The costs of transportation to Markant Services will be borne by the invoiced party. Goods must always be packed properly and after repair will be returned to the dealer or end-user at our expense.

10.4 Markant Services will assess – in some cases in conjunction with Product Management – whether the guarantee claim is justified. The original purchase note for the product is of essential importance in this regard. If no original purchase note (that states the purchase date, product, make, model and serial number if applicable) can be submitted, then the guarantee claim will not be honoured.

10.5 If the guarantee claim turns out to be unjustified, then call-out charges and the actual labour costs and actual cost of components will be charged on a per-event basis. Not covered by the guarantee will in all cases be defects that occur during or that are due in whole or part to:

– The end-user’s or dealer’s failure to comply with instructions regarding operation and/or maintenance, or to utilisation other than the normal intended utilisation;

– Normal wear and tear;

– Assembly/installation or repair by third parties, including the Buyer;

– Secondhand materials or items used in consultation with the end-user or dealer;

– Materials or items provided by the end-user or dealer to Markant for processing;

– Materials, items, procedures and structures, in so far as deployed on the express instructions of the end-user or dealer, as well as materials or items provided by or on behalf of the end-user or dealer;

– Components obtained from third parties by Markant, in so far as the third party has not given Markant any guarantee.

Article 11: Force majeure

11.1 The shortcomings that mean that Markant is unable to fulfil its obligations but that cannot be attributed to Markant and that cannot lead to compensation being paid to the Buyer, other than by virtue of unjustified enrichment, include:

›Any shortcoming as the unavoidable consequence of natural disasters, war, threat of war or war circumstances, uprising or serious disturbances.

›A shortcoming as the result of:

-a delay in the supply of a finished or other product due to unforeseen weather conditions;

-computer faults;

-a delay in the supply of a product due to amended or other planning or other shortcoming on the part of one of Markant’s vessel owners or suppliers;

-illness of persons such that proper and/or timely fulfilment must be reasonably deemed to be impossible;

-strike, work interruption, work hindrance or similar actions in or in respect of the business of Markant, its supplier or of third parties whose services it uses;

– loss of/damage to business assets caused by fire, storm or external unforeseen causes;

-any measure by a national or international authority.

11.2 If after an agreement is formed Markant is of the opinion, for good reasons, that the creditworthiness of the Buyer is insufficient or that his payments will not be made either before or after the applicable payment deadline, then Markant is entitled, irrespective of the agreed payment terms, to demand from the Buyer either immediate payment of the sum owed or the provision of collateral for the sum owed, under suspension of its obligation to deliver.

Article 12: Payment

12.1 All payments must be made no later than 30 days after invoice date without any deduction or setoff, unless expressly stated otherwise on the invoice. Markant is at all times entitled to demand cash payment and payment in advance. If the Buyer has no registered office or domicile in the Netherlands then the payment must be made in advance, and accordingly before the delivery is made, unless otherwise agreed.

12.2 In the event of orders exceeding € 12,500.00 net (including VAT) in size, the following payment arrangement applies, unless other arrangements are agreed in writing:

– Payment upon order confirmation: 30%;

– Two weeks (ten working days) before delivery: 40%;

– The remaining amount no later than 30 days after delivery of the goods.

The above percentages are calculated on the basis of the initial order confirmation. Any changes in the order will be passed on in the remaining amount.

12.3 In the case of the Buyer’s liquidation, insolvency or application for a moratorium, his obligations will become due and payable immediately.

12.4 After the expiry of the deadline stated in Article 12.1, the Buyer will be in default and from this point of time onwards will owe interest in accordance with the provisions of Article 9.2.

12.5 In the case of late payment, Markant is authorised in respect of this agreement to suspend the delivery of other items or to partially terminate it without judicial intervention and to demand full compensation from the Buyer.

12.6 Any payment made by the Buyer, irrespective of its amount or the Buyer’s instructions, will in all cases be deemed to have been made in the first place to reduce the interest and collection charges owed at any time, and then on the longest outstanding claim by Markant, unless Markant expressly declares otherwise in writing.

12.7 Payments in discharge of an obligation can never be made to a representative of Markant in respect of the item delivered by Markant.

12.8 All costs, commissions, taxes and other expenditure howsoever called that are owed in respect of the payment for items howsoever undertaken or that relate to the transfer of monies to this end will be borne by the Buyer.

Article 13: Intellectual property

13.1 All information and records that is/are prepared by Markant whether or not in the context of a specific order or delivery, as well as the related intellectual property rights, are unconditionally owned by Markant. Unless with the express written consent of Markant, no information or records may be copied in whole or part and/or shown to or provided to third parties, irrespective of the underlying reason for this. The Buyer is liable towards Markant for losses that arise because third parties have seen the information or records or have it/them at their disposal.

13.2 The information and records that Markant gives the Buyer become the Buyer’s property and may be used by the latter, provided that the Buyer has fulfilled its financial obligations towards Markant. The intellectual property rights are vested in Markant.

13.3 If the information and records that Markant has received from the Buyer or that the Buyer has received from third parties are utilised, then the Buyer warrants towards Markant that utilisation of these documents does not violate any intellectual property rights of third parties, with the Buyer indemnifying Markant against all claims arising from this. If a third party by virtue of any alleged right as referred to above objects to the utilisation by Markant, then by virtue of this alone Markant is automatically entitled to immediately stop utilising the documents in question and to demand reimbursement from the Buyer of costs incurred, this without prejudice to Markant’s possible entitlement to further compensation and without Markant being obliged to pay the Buyer any compensation.

Article 14: Applicable law and competent court

14.1 All agreements entered into by Markant, as well as their formation, execution and interpretation, along with the acts Markant performs, are solely subject to Dutch law.

14.2 All disputes arising from the agreements referred to in the previous paragraph and from acts arising from them or related to them, even if just one of the parties deem the dispute in question to be a dispute, will be submitted to the competent court in Utrecht for a ruling.