General Delivery Terms

Article 1: General

1. D2C:  D2C Nederland B.V. listed in the Trade Register of the Chamber of Commerce in Nijmegen under number 57218897 and/or D2C Design2Chill Kft, listed in the Trade Register of the Chamber of Commerce in Budapest under number 0109190736.
2. Buyer: The counterparty of D2C, acting from the exercise of a profession or company.
3. Agreement: The agreement between D2C and buyer.
4. Written: Intended by a written legal action also are electronic documents such as e-mail and fax, but under the proviso that e-mail and fax are only accepted by D2C after written or electronic confirmation within 24 hours after sending.

Article 2: Applicability

1. These conditions are applicable to all offers of D2C and to agreements concluded between them and buyer. Modifications to these general conditions can only be established between parties in writing and are only applicable to the relevant agreement. In addition, the "Dealership Conditions Design2Chill and 4-ElementZ" apply if the buyer is a company.
2. If a provision from these general conditions or from an agreement between D2C and buyer is void or impossible to apply, the place of this provision is legally taken by a valid provision which corresponds as much as possible with the tenor of the void or invalid provision. The other provisions will remain fully effective. The applicability of general conditions appealed to by buyer is emphatically rejected.
3. The rights of D2C to deploy third parties for the implementation of the agreement with buyer do not affect the applicability of these general conditions to the relevant agreement between parties.

Article 3: Offers/Quotations   

1. Offers issued by D2C lapse no later than fourteen days after sending and are non-committal, to the extent they do not evince the contrary unambiguously. A quotation or offer lapses if the product which the quotation/offer is in regard to has become unavailable in the meantime.
2. D2C cannot be held to its quotations or offers if the buyer can reasonably understand that the quotations of offers, or a part of them, contains an apparent mistake or typing error.

3. Offers of D2C can exclusively be accepted by buyer in writing. D2C nevertheless has the right to accept verbal approval by the buyer as if it were given in writing. After acceptance, D2C has the right to revoke its offer within 2 business days after receipt of the approval, in which case no agreement is concluded between parties.
4. D2C is not obliged to deliver matters if they were taken out of production or if they were dropped from its sales programme for any other reason.
5. Each offer, unless expressly specified otherwise, is based on implementation under normal circumstances and during the normal working hours which apply at D2C. In case of delivery or assembly outside the normal working hours, a surcharge is applied to the normal hourly rate in the amount of: - 30% on normal working days, under the proviso that after 6.00 PM the surcharge amounts to 40%; 60% on Saturdays; 100% on Sundays and Holidays.
6. The prices and quotations always are exclusive of VAT, other levies and such transport, shipping, and packaging costs as may apply, unless it is stated otherwise. Price lists in whatever form always are outside the realm of an offer and/or quotation by D2C.
7. A compound price quotation does not oblige D2C to deliver a part of the matters included in the offer or quotation against a corresponding part of the price quoted. Offers or quotations do not automatically apply to backorders.

Article 4: Samples, models and examples  

1. If models, samples, etc. are shown or provided by D2C, they are assumed to have only been shown or provided as an indication. Pictures, drawings, normalisation sheets etc. included in catalogues are only indicative.
2. The examples and information for matters to be delivered mentioned in the preceding section are not binding, except to the extent they have been emphatically included in an agreement undersigned by parties or in an order confirmation undersigned by D2C, without prejudice to the responsibility of buyer for the information provided by him.

Article 5: Acceptance of orders

1. All agreements for purchase and sale are adopted by D2C, if such is emphatically stipulated from case to case, under the suspensory condition that the information to be obtained by it evinces that the buyer is sufficiently creditworthy.
2. If a buyer is negligent towards D2C with regard to the implementation of any agreement, D2C has the right at all times, also after it has started implementation of an order partially or fully, to demand from the buyer, before proceeding to deliver, that he lodges sufficient security for the fulfilment of his payment obligations. 
3. Orders are only accepted by D2C if the order includes the correct item and colour numbers.
4. Orders taken by agents are binding for buyer D2C, under the proviso that D2C has the right to notify the buyer within 15 business days in writing that it cannot or cannot in an unaltered form carry out the order, if the unaltered implementation of an order received through an agent is impossible due to circumstances of which the agent could not reasonably have been aware of, in which case the order is considered cancelled, unless buyer and D2C still reach an agreement.
5.   If an order confirmed by D2C under specification of the established price and delivery time is cancelled by the buyer, D2C will charge, on condition it approves the cancellation, compensation for costs.

Article 6: Implementation

1. If and to the extent the proper implementation of the agreement requires such, D2C has the right to have certain activities carried out by third parties.
2. The buyer will timely provide all information which is necessary for the implementation of the assignment to D2C. In case of the late provision by buyer, D2C has the right to suspend the implementation of the assignment and to bill any possible costs resulting from the delay to buyer. Buyer safeguards D2C against any possible claims by third parties which incur damage in connection with the implementation of the agreement which can be attributed to buyer.

Article 7: Delivery

1. Partial deliveries by D2C are permitted, such at the discretion of D2C. Partial deliveries may be invoiced separately.
2. The delivery times specified in the offer and agreement apply in approximation and are not strict time limits. The delivery time stated by D2C only commences after all necessary information is in its possession and payment, to the extent this has been agreed on, is received.
3. The overrunning of the terms only confers the right of rescission of the agreement concluded between parties to buyer, after the latter has declared the default of D2C in writing and has granted a reasonable term to comply still with its obligations.
4. Buyer is obligated to purchase the ordered matters at the moment they are delivered or otherwise at the moment they are made available according to the agreement. If buyer refuses purchase or is negligent in providing information or instructions which are required for delivery, the matters will be stored at the risk of buyer. In that case, buyer will owe all additional costs, including storage costs in any case. Intended by delivery also are partial deliveries.
5. Matters are delivered at the moment they have been brought under the effective control of buyer or of third parties deployed by buyer, and they are at his risk from the moment onwards.
6. If the matters are shipped with means of transport of D2C or of forwarders working on their behalf, the delivery takes place by offering the matters ground floor at the warehouse of buyer. In that case, the matters travel at the risk of D2C until the moment of delivery.
7. In all other cases delivery has taken place as soon as the matters have been handed over at the train station or the loading area of another means of public transport, preferably located closest to the plants or the warehouses of D2C. In these cases, the matters always travel at the risk of the buyer, even if the transport documents were to evince differently, which is also intended to include the statement of “insufficient packaging” demanded by third parties, unless a complaint has been filed by the buyer immediately after receipt with the transporter. Unless the matters are picked up by the buyer from the warehouse of D2C, they travel by the means of transport which are customary at that location, at the discretion of D2C. If the buyer desires another manner of transport, the extra costs of it will be borne by him.
8. All matters are transported at the expense of the buyer, unless the shipping costs are incorporated in the price.
9. In case a buyer refuses to immediately receive matters offered to him correctly and intact, the resulting shipping costs, expenses for storage etc. are borne by him.
10. D2C delivers his orders at all times to the retailer and not directly to the final customer. Unless agreed otherwise with the customer whereby an additional charge is applied. 
11. Delivery in the context of projects takes place based on quantity and the delivery term agreed on with the customer.

Article 8: Complaints and Warranty                  

1. Buyer will inspect the delivered matters upon delivery, or as soon after as is possible, for numbers and quality. Visible defects or deficiencies must be reported within three days after delivery in writing and with full specifications to D2C. Invisible defects or deficiencies must be reported within three weeks after discovery, though in any case no later than within three months after delivery.
2. Complaints do not suspend the payment obligation of buyer. Return shipping of the delivered matters is only possible after the written consent of D2C.
3. D2C guarantees that the matters to be delivered meet the usual standards and requirements which may be imposed on them and that they are free from any defect. This warranty is effective for a period of 36 months after delivery.
4. This warranty is not effective in case the defect is the result of inexpert or inappropriate use. 
5. Not covered by the warranty are in any case defects which occur upon or otherwise are, either partially or totally, the consequence of:

1. non-observance by buyer of operational requirements and/or maintenance regulations or usage which deviates from what is normal;
2. normal wear and discolouring of the upholstery; 
3. assembly/installation or repairs by third parties, the buyer included;
4. the application of any government regulation regarding the nature or quality of the material used;
5. material or matters applied upon request of the buyer;
6. material or matters which are provided for processing to D2C by buyer;
7. material, matters, procedures, and constructions, to the extent applied upon emphatic request by buyer, as well material and matters supplied by or on behalf of buyer;
8. components purchased by D2C from third parties, to the extent the third parties have not provided a warranty to D2C;
9. the buyer must frequently use the cover sleeves which can be ordered separately in case of bad weather conditions as may occur in autumn, winter (for example prolonged rain).  The warranty also lapses in case of incorrect use of the cover sleeve, whereby one must at all times use a dry cover sleeve for a dry couch.
6. If buyer does not, does not adequately, or does not timely fulfil any obligation which results for him from the agreement concluded with D2C or from an agreement correlated to it, D2C is not bound by any warranty with regard to these agreements.
7. If D2C, in order to comply with its warranty obligations replaces components/matters, the replaced components/matters become its property.
8. In case of complaints/re-upholstering, D2C picks up the relevant goods from the retailer and delivers them again at the retailer after repair/re-upholstering.  The retailer is responsible both for picking up the goods and for their delivery to the final customer. The retailer is also responsible for the proper packaging of the goods which are to be picked up. 

Article 9: Prices

1. For orders for more than 500 euros net, deliveries are included in the price. Price listings are exclusive of VAT and other levies which are imposed by government.
2. For orders below 500 euros net, exclusive of VAT, D2C will charge the effective shipping costs and a fixed surcharge for administrative costs.
3. If the delivery is postponed on request of buyer, or anticipated, D2C is entitled to compensation for the costs resulting from this postponement or expediting respectively.
4. If the supply line in or at the place of delivery requires extra labour time due to the lack of pavement or an asphalted road or due to other circumstances, D2C has the right to separately bill these hours.
5. D2C has the right to adjust its prices to significant changes in price-determining factors, such as the prices of wages, raw material, and transport, in case between the moment of offering and that of delivery or payment more than two months have elapsed. It has the right to implement price increases immediately as a consequence of legal arrangements. 
6. Any possible cost of delivery, installation, assembly, and packaging and other costs to be incurred in connection with the delivery are not included in the price. 
7. D2C may pass on price increases to buyer if between the moment of offering and that of implementation of the agreement significant price changes have occurred, but only if these price increases occur within three months after conclusion of the agreement.
8. The prices applied by D2C are always exclusive of VAT, other levies and such administration, shipping, transport, and packaging costs as may apply, unless emphatically stated otherwise. 
9. Price lists in whatever form are never a part of an offer and/or quotation by D2C.

Article 10: Payment buyers               

1. A.  Retailers: for payment, a distinction is made between new and existing contacts of D2C. Invoicing for new contacts of D2C takes place as follows: - 1^st order: 50% in advance, remainder immediately after delivery.  For already existing contacts, a payment term applies of 14 days after delivery. Both for new and for existing contacts that place customised orders, a down payment applies of 50% of the purchase price. 

B. Projects: down payment 50% upon placement order and the balance on delivery. 

2. Handling of the order only starts after receipt of the first payment which must be credited within 5 days after invoice date to the bank account indicated by D2C.
3. After the correct handling of the first three orders by buyer, payment must take place within 14 days after invoice date in the reasonable manner to be indicated by D2C. Failing timely payment, buyer falls legally into default and from the expiry date of the (partial) invoice he owes default interest amounting to 1.5% per commenced month.
4. The extrajudicial (collection) costs to be incurred by D2C will be compensated by buyer. These costs will be set at a lump sum of 15% of the amount owed, whereby D2C reserves itself the right to claim the costs it has effectively sustained.
5. Payments made by buyer first serve for the settlement of all interest and costs indicated under section 3 and 4 and subsequently for the payable invoices which are outstanding longest, even if buyer indicates that such settlement regards a more recent invoice.
6. If and to the extent buyer deems a delivered matter is subject to defects, he does not have the right to refuse payment or to suspend his payment obligation with regard to matters from the same shipment and/or delivery with regard to which no complaints have been communicated.
7. In case of liquidation, bankruptcy, seizure, or suspension of payment on the part of the buyer, the claims of D2C on the buyer are immediately payable.
8. D2C reserves itself the right after consultation with buyer to deliver the order in batches and to invoice these partial deliveries.
9. All payments must be made in Euros to D2C.
10. D2C reserves itself the right to block orders until previous orders have been paid.
11. D2C grants 2% payment discount if the payment is received within 4 days after invoice date, unless established otherwise in writing.

Article 11: Retention of property

1. All matters delivered by D2C remain the property of D2C until the buyer has fulfilled all obligations from all agreements concluded with D2C. Buyer is not authorised to pawn the matters delivered under retention of property, nor to encumber them in any other way.
2. Buyer commits himself to insure the matters delivered under retention of property and to keep them insured against damage and theft.

Article 12: Liability

1. The liability of D2C is limited to compliance with the warranty obligations described in article 8 of these conditions.
2. Liability for direct damage is limited to a maximum of the compensation charged for the defective matter to buyer, at no more than five hundred euros. The liability is maximised in any case to the amount which in the relevant case is disbursed by the insurer of D2C. Liability for indirect damage is excluded.
3. D2C is not liable for the violation of third-party rights as a consequence of the use of information and matters by or on behalf of buyer. In case buyer is not a consumer or a purchaser which can be equated with it, he is bound to safeguard D2C or indemnify it respectively with regard to all third-party claims for compensation of the damage.
4. D2C is not liable for advice provided or still to be provided, unless they have been or will be the express object of a written consultancy agreement.

Article 13: Intellectual property

1. For the duration of the effective time of this agreement, D2C grants the right to make use of the trademarks of D2C, with due regard for all its instructions regarding usage.
2. It is not permitted to buyer to take actions which are an infringement on the trade name, brand name, or other intellectual property rights of D2C, regardless of whether they have been registered.
3. Buyer is obligated to use the logos applied by D2C. It is only permitted to him after the written consent of D2C, to remove any brand marking from the products or to change them, or to apply the own brand marking to the products.
4. The intellectual property rights to advice, drawings, script, pictures and descriptions and the information regarding the manufacturing and/or construction methods applied by D2C, always remain reserved by D2C. Without the emphatic consent of D2C, they may never be, totally or partially, copied, disclosed, or used, nor given for perusal to third parties.

Article 14: Force majeure

1. If D2C is unable due to force majeure to comply with its obligations from the agreement towards buyer, buyer does not have the right to suspend his obligations pursuant to other agreements.
2. If the situation of force majeure has lasted for at least 3 months, each of the parties can rescind the relevant agreement which those obligations are in regard to, or the unimplemented part respectively, without D2C becoming liable for compensation.
3. Intended by force majeure are circumstances regarding material and/or persons and/or suppliers whom/which D2C makes use of for the implementation of the agreement or is used to using, which are of such a nature that the implementation of the agreement as a result becomes impossible or problematic to such extent and/or disproportionately costly, that compliance with the agreement cannot reasonably be demanded anymore, or not immediately, from D2C. Considered such circumstances can be for example (though not exhaustively): war and comparable situations, government measures, strikes, impediments by third parties, technical complications which were not foreseen by parties, the circumstance that D2C does not get a performance which is important, in connection with a performance to be delivered by third parties, or does not get it timely, or not adequately delivered.

Article 15: Suspension, rescission  

1. If buyer does not, does not adequately, or does not timely comply with any obligation resulting from an agreement concluded with D2C, or if it is highly questionable whether buyer is able to comply with his contractual obligations towards D2C, D2C has the right, without any default notice or judicial intervention, to either suspend the implementation of any agreement concluded with buyer, or to completely or partially rescind those, and such without having any obligation to compensate damages and without prejudice to the other rights falling to it. All payments owed by buyer in such case become immediately payable.
2. What is stipulated under section 1 is complied with in any case if buyer:
   1. Proposes an arrangement outside bankruptcy
   2. Applies for suspension of payment;
   3. Applies for his own bankruptcy or if a third party applies for the bankruptcy of buyer;
   4. Requests for application of the law on debt restructuring for natural persons, ‘Wet Schuldsanering Natuurlijke Personen’;
5. Is placed under forced administration or otherwise loses free control over his assets;
6. Is negligent with regard to compliance with any obligation towards D2C.
7. Faces the seizure of his assets;
8. Is under full or partial transfer due to the change of his shareholders.

Article 16: Risk transfer  

1.      The risk of loss or damaging of the products which are the object of the agreement is transferred to the buyer at the moment that they are brought under the control of buyer or of (a) third party(-ies) designated by buyer.

Article 17: Deviating matters apart from delivery

1.      In case of arrangements between D2C and buyer regarding matters which do not lead to delivery according to offer and/or quotation, D2C and buyer must draw up an agreement as parties, which only in the event offer and/or delivery are proceeded to can refer to these conditions. For all matters, not subsumed by delivery, special and separate contracts apply between parties.

Article 18: Disputes

1. Parties will only take recourse to the court of law after they have done their utmost to resolve a dispute by mutual agreement. 
2. Disputes between D2C and buyer which result directly or indirectly from an agreement between them, are resolved, to the exclusion of any other court, at the first stage solely by the competent court in Arnhem, barring the event that buyer – within a month after D2C has invoked this article – notifies it in writing to submit the resolution of the dispute to the legally competent court.
3. To each agreement between D2C and buyer, Netherlands legislation is applicable. The Vienna commercial treaty (United Nations Convention on the International Sale of Goods, CISG in short) is emphatically excluded.

Article 19: Other provisions

1. These general delivery terms have been registered at the offices of the Chamber of Commerce in Nijmegen (NL).
2. Applicable is always the version deposited last i.e. the version as it was applicable at the time of adoption of the agreement.