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Terms and Conditions

GENERAL TERMS AND CONDITIONS M-WALL BV
 
Article 1. General definitions
1.1 In these Terms and Conditions, the following definitions apply:
a. M-Wall B.V.: M-Wall B.V., having its registered office in Eindhoven, as registered with the Chamber of Commerce in Eindhoven under no. 52273075.;
b. The Client: any natural person or legal entity that commissions M-Wall B.V. to supply Products and/or Services, or with whom M-Wall B.V. enters into an agreement or with whom M-Wall B.V. is in discussion or negotiation about entering into an Agreement;
c. Agreement: the agreement concluded between the parties to which these Terms and Conditions have been declared applicable by M-Wall B.V. The following general provisions apply to all offers, sales, deliveries and services provided by M-Wall B.V. Even if the Client declares other Terms and Conditions applicable, these will not apply to M-Wall B.V., unless explicitly agreed in writing between the parties. By requesting a quotation or placing an order, the Client is deemed to have accepted M-Wall B.V.’s Terms and Conditions. The Client is deemed to be aware of the content of these Terms and Conditions;
d. Products: all M-Wall B.V. wall covering products. Products by other manufacturers also fall under these Terms and Conditions, however, such products may be subject to additional or alternative terms and conditions. 
e. Services: all work that M-Wall B.V. carries out on behalf of or for a Client;
f. Order: any order by the Client to M-Wall B.V., in whatever form.
Article 2. Applicability
2.1 Except if, partly given the nature of the agreed performance or performance to be agreed, other general terms and conditions of M-Wall B.V. apply, these Terms and Conditions form part of all agreements and these Terms and Conditions apply to all actions, as well as legal actions between M-Wall B.V. and the Client, even if those actions or legal actions do not lead to, or are not related to, an agreement.
2.2 The applicability of any general term or condition of the Client is explicitly excluded by M-Wall B.V.
Article 3. Offers, conclusion of Agreements and declarations and specifications of Products and Services 
3.1 All offers made by M-Wall B.V. are without obligation and M-Wall B.V. expressly reserves the right to amend the prices if the Client makes changes to the basis and/or basic principles behind such prices, due to increases in the direct or indirect costs of raw materials, logistics and/or other product-related costs, in particular when necessary by virtue of (legal) requirements, as well as changes to statutory taxes such as VAT.
3.2 An Agreement is only formed if and insofar as M-Wall B.V. accepts an order from the Client in writing (including by e-mail) or verbally (by telephone) or if M-Wall B.V. executes an order, unless the Client proves by other means that M-Wall B.V. has unconditionally accepted the order from the Client in full and unconditionally. In the event that M-Wall B.V. performs any task upon request before the price and payment conditions for that performance have been fully agreed, the Client shall pay M-Wall B.V. for this, subject to the provisions of Articles 5 and 6, in accordance with the rates applicable to M-Wall B.V. at that time. Insofar as the Client – contrary to the first sentence of this paragraph – accepts a binding offer from M-Wall B.V. with irregularities that are of minor importance, those irregularities do not form part of the Agreement and the Agreement is formed in accordance with M-Wall B.V.’s offer.
3.3 All figures, measurements, weights, colours of Products and/or Services specified by M-Wall B.V. are carried out with care. M-Wall B.V. cannot guarantee that there will not be any irregularities in this regard. Displayed or provided samples, drawings, photos, 3D impressions or models are merely indications of the Products and/or Services in question. If the Client proves that the supplied/delivered Products and/or Services deviate in such a way from the specifications of M-Wall B.V. or from the samples, drawings, photos, 3D impressions or models that he can no longer reasonably be required to purchase them, the Client has the right to dissolve the Agreement, however only insofar as that dissolution is reasonably necessary.
Article 4. Amendments and additions 
4.1 Amendments and additions to any provision in an Agreement and/or the Terms and Conditions may only be agreed in writing. A written document of this type first applies between the parties once it has been signed by an authorised representative of M-Wall B.V.
4.2 If an amendment and/or addition as referred to in paragraph 1 is agreed, this amendment or addition shall only apply to the Agreement in question.
Article 5. Prices
5.1 All of M-Wall B.V.’s prices are expressed in euros and include VAT, unless stated otherwise. Unless stated otherwise in M-Wall B.V.’s brochures, price lists or other promotional materials or unless explicitly agreed otherwise, the Client shall be charged separately for packaging and shipping costs, the costs of import and export duties and excise duties, as well as all (other) levies or taxes enforced or imposed in relation to any supplying of goods.
5.2 Although M-Wall B.V. takes the necessary care at all times when communicating and formulating its offers and prices, the Client may never derive any legitimate trust in relation to the accuracy of the data, unless explicitly expressed otherwise in writing.
5.3 M-Wall B.V. may pass on any change in the factors affecting the price and the additional expenses of M-Wall B.V. referred to in paragraph 1, including purchase prices, exchange rates, import and export rights and other import or export levies, insurance rates, cargo rates and other levies or taxes, to the Client. The Client is only authorised to dissolve the Agreement if this happens within three months after the Order has been accepted by M-Wall B.V. and provided that the Client is entitled to an appeal on the grounds of nullification as referred to in Article 6:235 of the Dutch Civil Code.
5.4 If the Client’s delivery address is registered outside of the zone for which our supplier charges standard costs, M-Wall B.V. is entitled to increase the shipping costs and potential costs as stated under point 5.3, as well as the actual amount and administration costs. The Client shall be notified of such a case prior to delivery and the additional costs shall be presented to them. In the Netherlands, the Wadden Islands fall outside of the general delivery zone, as do all countries outside of the Netherlands.
5.5 The Client indemnifies M-Wall B.V. against all costs and damage incurred by M-Wall B.V. from the fact:
a. that the Client is not properly registered for VAT or a similar tax in a relevant EC Member State and/or;
b. that the Client supplies incorrect or late information to M-Wall B.V. and/or the authorities in relation to VAT or a similar tax in a relevant EC Member State.
Article 6. Payment 
6.1 If no other payment conditions have been agreed, the payment condition is 30 days after the invoice date. 
6.2 The Client is not entitled to settle a claim unless he is permitted to do so based on a legal judgement or judgement passed by a court of arbitration.
6.3 Complaints and/or warranty claims do not justify delayed payment, partial payment or returning of goods without prior written consent.
6.4 If M-Wall B.V. gives the Client an extension to perform any task out of reasons of goodwill or otherwise, new deadlines become final in nature.
6.5 If the Client has not provided payment within 14 days of the date on the invoice, the Client is in default without further notice and M-Wall B.V. is entitled to increase the amount to be claimed with interest based on 1.5% per month from the due date, without prejudice to an increase in the amount due with collection costs, legal fees and other collection fees, including the costs of a lawyer, with all this at least 15% of the principal sum with a minimum of €100, all excluding VAT.
Article 7. Delivery deadline 
7.1 The delivery deadline stated by M-Wall B.V. for Products and/or deadlines for supplying Services is indicative, not final and based on circumstances that apply to M-Wall B.V. at the time the Agreement was entered into and, insofar as dependent on third-party performance, on the information provided by third parties to M-Wall B.V. M-Wall B.V. shall take into account the delivery deadline stated as far as possible.
7.2 Insofar as the Agreement is concluded on any working day before 10 a.m., the deadlines referred to enter into force on the date on which the Agreement is concluded. Insofar as the Agreement is concluded on any working day, except for Friday, after 10 a.m., the aforementioned deadlines commence on the first working day after the Agreement is concluded. Insofar as the Agreement is concluded in a weekend, on a generally recognized public holiday in the sense of the General Extension of Time Limits Act (Algemene Termijnenwet) or on a Friday after 10 a.m., the aforementioned deadlines enter into force on the next regular working day.
7.3 In the event that M-Wall B.V. requires information or resources that must be provided by the Client for the execution of the Agreement, subject to the provisions in paragraph 2, the deadlines commence on the day on which all necessary information or resources are in the possession of M-Wall B.V. in usable form.
7.4 Delivery by M-Wall B.V. takes place by no later than the deadline stipulated by M-Wall B.V. If delivery does not take place on time, the Client will receive notification of this in good time prior to the stipulated delivery date and/or within two working days after having placed the order, and the Client has the right, until the time of delivery, to dissolve the Agreement free of charge by notifying M-Wall B.V. in writing. You shall not be entitled to compensation if the delivery deadline is missed.
7.5 Any payments already made by the Client in the context of the preceding article shall be approved and deposited in the Client’s bank account as soon as possible, but in any case within fourteen (14) working days after M-Wall B.V. has received the request to dissolve the Agreement referred to in Article 7.4.
Article 8. Delivery and risk 
8.1 The supply/delivery of the Products ordered by the Client, including the costs of delivery and the transfer of the risk are subject to the payment conditions referred to under Article 6.
8.2 If it has been agreed that supply/delivery shall not be made under advance payment, the delivery and risk transfer of the Products and their packaging shall take place at the location and time at which the Client receives the Products. M-Wall B.V. shall notify the Client as soon as possible of the aforementioned time and location and the Client shall purchase the Products as soon as possible, yet within no more than 10 working days of the notification.
8.3 The Client shall ensure that, on their part, nothing stands in the way of observing certain agreed deadlines, including delivery and purchase times and payment agreements.
8.4 Should the Client fail to purchase the Products or fail to do so in time, they shall be in default without notice, in which case M-Wall B.V. has the right to store the Products at the expense and risk of the Client or to sell them to a third party. The Client is then still required to pay the purchase price.
Article 9. Force majeure 
9.1 In the event that M-Wall B.V. is unable to fulfil its obligations towards the Client due to a non-attributable failure (“force majeure”), those obligations shall be postponed or partially dissolved for the duration of the state of force majeure.
9.2 In the event that the state of force majeure has lasted three months, both Parties have the right [to dissolve] the Agreement in its entirety in writing.
9.3 The force majeure of M-Wall B.V. is understood to mean any circumstance independent of the will of M-Wall B.V., through which fulfilment of (the relevant part of) its obligations towards the Client is prevented, delayed or made uneconomical or through which the fulfilment of these obligations cannot reasonably be requested of M-Wall B.V.
9.4 The Parties shall notify one another of a state of force majeure (or potential state thereof) as soon as possible.
Article 10. Retention of title 
10.1 Ownership of the Products, notwithstanding the actual delivery, passes to the Client once they have paid in full everything they owe or shall owe to M-Wall B.V. in relation to the Products that have been or are due to be delivered pursuant to this Agreement, including the purchase price, any surcharges, interest, taxes and costs due in accordance with these Terms and Conditions or the Agreement, as well as any work carried out or to be carried out pursuant to such Agreement.
10.2 Each amount received from the Client shall first of all cover those claims that M-Wall B.V. may have against the Client in relation to which M-Wall B.V. has not created a retention of title as in paragraph 1.
10.3 Before ownership of the Products has transferred to the Client, the Client is not entitled to rent the products out to third parties or allow them to use them, pledge them to third parties, or otherwise encumber them for the benefit of third parties. The Client is only entitled to sell the Products owned by M-Wall B.V. to third parties or to supply or deliver them to third parties insofar as this is necessary in the context of the Client’s normal business operations.
10.4 The Client is obliged to store the Products delivered under retention of title carefully and as identifiable property of M-Wall B.V., and to insure them against risks such as fire, explosion, loss or damage and theft. At M-Wall B.V.’s initial request to this end, the Client shall assign all rights to the insurers concerned in this context to M-Wall B.V.
10.5 If and as long as M-Wall B.V. is the owner of the Products, the Client shall notify M-Wall B.V. immediately in writing if any part of the Products has been lost or is damaged, or the Products have been confiscated and/or otherwise claim is made on the Products (or any part thereof). The Client shall also notify M-Wall B.V. at M-Wall B.V.’s initial request, where the Products owned by M-Wall B.V. are located.
10.6 In the event of seizure, moratorium on payment or bankruptcy, the Client shall immediately draw the attention of the bailiff seizing the goods, the administrator or the guardian to M-Wall B.V.’s rights or rights pertaining to retention of title. 
Article 11. Intellectual property 
11.1 M-Wall B.V. declares that, insofar as it knows, the Products are not infringing on the intellectual property rights of third parties in force in the Benelux. However, M-Wall B.V. May not indemnify the Client against any infringements on intellectual property rights of third parties. 
11.2 In the event that M-Wall B.V. manufactures Products or has them manufactured in a specific order by the Client based on a design not originating from M-Wall B.V., the Client indemnifies
M-Wall B.V. against all infringements relating to (the manufacture and use of) the Products
11.3 The Client guarantees not to infringe intellectual property rights of M-Wall B.V. (nor to permit or enable third parties to do so) in relation to the products, for example by copying, editing or imitating the products.
Article 12. Inspection and complaints 
12.1 The Client is obliged to carefully inspect (or have inspected) the Products immediately upon arrival at their destination or, if sooner, following receipt by themselves or by a third party commissioned by them. Any complaints about Product defects that are attributable to material or manufacturing faults, or any differences in quantity, weight, composition or quality between the delivered Products and the description for these Products given on the order confirmation and/or invoice must be communicated to M-Wall B.V. in writing or by telephone within eight days of the Products having arrived.
12.2 Upon discovering any defects, the Client must cease using, operating, processing or installing the Products in question immediately.
12.3 The Client shall lend all support requested by M-Wall B.V. for investigation and complaints, including by giving M-Wall B.V. the opportunity to conduct (or have conducted) an investigation into the operating, processing, installation and/or usage conditions.
12.4 The Client does not have the right to complain in relation to Products for which M-Wall B.V. is unable to monitor the complaint.
12.5 The Client is not free to return the Products before M-Wall B.V. has given its written consent to do so. The Client must cover the return costs themselves and the Products remain for their own risk, unless the product is faulty upon receipt or we have supplied the incorrect product.
12.6 Any defects in relation to an individual batch of Products that forms part of a delivery consisting of several batches only give the Client the right to dissolve the entire Agreement if the Client cannot reasonably be asked to maintain the remaining part of the Agreement.
12.7 The Client may not exercise any claims in relation to complaints about defects in Products towards M-Wall B.V. as long as the Client has failed to fulfil any direct obligation towards M-Wall B.V.
12.8 If the Client complains about defects in a Product in a timely, correct and rightful manner, the liability that falls on M-Wall B.V. ensuing from this is limited to the obligations described in Article 13.1, depending on the nature of the complaint with due observance of the other provisions in Article 13.
Article 13. Warranty 
13.1 M-Wall B.V. assures the customer of a high-quality product. M-Wall B.V. guarantees the customer such quality in accordance with agreed specifications. Keep your invoice safe as proof of purchase. Any complaints that have arisen as a result of not handling the products carefully in general and/or incorrect application and/or maintenance are explicitly excluded from this warranty period.
13.2 As a general warranty provision, we assume rightful use for which this product is intended. All other applications, as well as failure to monitor usual methods excluding any liability for processing methods. During the warranty period, the Products depreciate in value over the warranty period within the current year.
13.3. The warranty only covers the replacement of the supplied Products. Follow-up, processing or disposal costs and liabilities towards third parties and/or their property (products) are excluded from the warranty. The Products will be replaced with equivalent Products, insofar as these are available at the time of replacement. You must hereby take into account that depending on trend movements in the market, colour, as well as compositions/dimensions, may vary from the products previously delivered.
13.4 Exceptions to this warranty include normal wear and tear, incorrect application and/or use of the Products, improper use, damage, or other damage caused externally.
13.5 In the event of a dispute ensuing from this warranty, each of the Parties may call on an independent expert who will issue a binding recommendation. The party ruled against shall bear the costs of this recommendation. When this clause is applied, these costs must be agreed in writing in advance between the two parties.
Article 14. Liability and indemnity
14.1 M-Wall B.V. shall at no point be liable for any direct or indirect loss or damage incurred by the Client or third parties, including consequential losses, intangible damage, loss of profit or damage to the environment, ensuing from use of the Products.
14.2 M-Wall B.V.’s liability towards the Client is therefore limited for whatever reason per incident (whereby an interrelated series of incidents counts as a single incident) to the contractual sum in question (excluding VAT). If a contractual sum cannot be appointed, M-Wall B.V.’s liability is limited to the amount it receives in this matter from its business liability insurer.
14.3 The liability limitations in paragraphs 1 and 2 are excluded insofar as the loss or damage in question is caused by intent or gross negligence on the part of M-Wall B.V. or its highest level staff, or insofar as M-Wall B.V.’s liability ensues from the applicable mandatory product liability right.
14.4 Except in the case of gross negligence on the part of M-Wall B.V. or its highest level staff, the Client shall indemnify M-Wall B.V. against all claims made by third parties, for whatever reason, in relation to covering the costs of loss or damage, expenses or interest, in relation to the Products or resulting from use of the Products, unless no blame can reasonably be attributed to the Client in relation to the loss or damage.
14.5 M-Wall B.V. shall at no point be liable for whatever loss or damage has occurred, insofar as this loss or damage ensues from non-careful use of the Products or use of the Products that contravenes the accompanying user guide and/or processing instructions.
Article 15. Other obligations and responsibilities 
15.1 The Client shall, at all times, provide M-Wall B.V. with all the information necessary for the execution of M-Wall B.V.’s work in good time and guarantees the correctness and completeness of such information.
15.2 The Client shall not remove brand names and/or identification marks in their entirety or in part or render them illegible.
Article 16. Dissolution
16.1 In the event of (provisional) moratorium on payments, bankruptcy, cessation or liquidation of the Client's company, all Agreements with the Client shall be legally dissolved, unless M-Wall B.V. communicates to the Client its request for fulfilment of the Agreement (or part thereof) within a reasonable time (where appropriate at the request of the administrator or the guardian), in which case M-Wall B.V. is entitled without notice:
a. to suspend execution of the Agreement(s) in question until payment has been adequately assured; and/or
b. to suspend all its potential obligations in relation to the Client;
all notwithstanding M-Wall B.V.’s other rights under whatever Agreement with the Client and without M-Wall B.V. being obliged to pay any compensation.
16.2 In the event that the Client fails to fulfil any obligation properly or within a specified period or otherwise on time imposed on them by any Agreement, the Client is in default and M-Wall B.V. is entitled without notice or legal intervention:
a. to suspend execution of that Agreement and directly related Agreements until payment has been assured; and/or
b. to dissolve that Agreement and directly associated Agreements in whole or in part; all without prejudice to M-Wall B.V.’s other rights under whichever agreement with the Client and without M-Wall B.V. being obliged to pay any compensation.
16.3 In the event that an incident occurs as referred to in paragraph 1 or paragraph 2, all respective claims made by M-Wall B.V. on the Client and, by virtue of the Agreement(s) in question, the said claims are payable immediately and in full and M-Wall B.V. is entitled to return the Products in question. In that case, M-Wall B.V. and its authorised individual(s) shall be entitled to enter the Client’s sites and buildings in order to take possession of the Products. The Client must take the necessary measures in order to give M-Wall B.V. the opportunity to exercise its rights.
Article 17. Transfer of rights and obligations
17.1 M-Wall B.V. is permitted to transfer the rights and obligations described in any Agreement with the Client to third parties. In the event that M-Wall B.V.’s obligations are transferred, M-Wall B.V. must notify the Client of this in advance and the Client has the right to dissolve the Agreement. M-Wall B.V. is not required to pay any compensation.
17.2 The Client is not entitled to transfer their rights and/or obligations ensuing from an Agreement to a third party without the prior written consent of M-Wall B.V.
Article 18. Exercising of suspension, dissolution and nullification rights
18.1 In the event that M-Wall B.V., by virtue of the circumstances known to it and should have been known to it at that time, in all reasonableness believes that it may legally exercise a suspension, dissolution and/or nullification right, M-Wall B.V. is not required to pay the statutory interest in the event that it should later be established that it has not legally exercised the aforementioned right(s).
Article 19. Applicable law, duty to provide information and competent court
19.1 These Terms and Conditions, as well as all Agreements, are subject to the law of the Netherlands.
19.2 Third parties shall not enter into any agreement between M-Wall B.V. and the Client on the basis of a third-party clause in these Terms and Conditions or the Agreement.
19.3 All disputes between the parties shall be brought before the competent court in the Netherlands only.