Article 1: Definitions
In these General Terms and Conditions for Delivery, the terms following below will have the following meaning:
Lugarde: Wuestman Tuindecoraties B.V., trading under the name Lugarde, having its seat of business at Deventerweg 67 in Laren, the Netherlands;
Customer: the enterprise that concludes an Agreement with Lugarde;
Agreement: The Agreement between Lugarde and the Customer.
Article 2: General
The applicability of possible terms and conditions of purchase or otherwise of the Customer is explicitly rejected.
Those stipulations that Lugarde deems to have deviated from these General Terms and Conditions for Delivery shall not prevent the other stipulations from continuing to apply. Stipulations deviating from these General Terms and Conditions for Delivery are only valid if they have been agreed explicitly in writing or via email.
Article 3: Special offers and designated offers
Each designated offer and special offer of Lugarde is non-binding.
Obvious errors or mistakes on the website and in the folders, designated offers or email messages of Lugarde do not bind Lugarde.
If the delivery is of natural materials, such as wood, then show models or images thereof can only be regarded as an indication, so that colour and structure differences are acceptable.
Data regarding the offered goods, such as characteristics, dimensions, weights, appearance, images and quality, only apply by approximation and are not binding. Lugarde reserves the right to change its models.
Article 4: Prices and costs
The stated prices are:
based on delivery from the enterprise of Lugarde, warehouse or other storage place;
exclusive of VAT, import duties, other taxes, levies and rights;
exclusive of the costs of transport and insurance, unless agreed or stated otherwise.
Lugarde has the right to modify its prices from time to time.
If the Customer does not, in a timely or complete manner, comply with their obligations towards Lugarde, then all extra costs incumbent upon Lugarde as a result will be the responsibility of the Customer.
If the Customer wishes to change the order, this can have financial consequences. The order can only be changed after the Customer has agreed to pay any extra costs.
Article 5: Cancellation
If the Customer cancels the order in whole or in part, then they are required to compensate Lugarde for all expenses (costs of preparation, orders from third parties, storage etc.) reasonably made with a view to the execution of the Agreement, notwithstanding the right of Lugarde to complete compensation because of lost profits. Cancellation must take place in writing or via email.
Immediately the Customer has made known to Lugarde the fact that they wish to wholly or partially cancel the order, the cancellation costs will be communicated to the Customer. Should the Customer not agree with the cancellation costs, then the original order remains intact, the goods will be delivered as agreed and the Customer must pay the full agreed price.
Article 6: Delivery
Delivery times stated are always approximate. Exceeding the delivery time does not give the Customer the right to compensation by means of damages, dissolution of the Agreement or any other form of compensation.
The Customer is obliged to collect the delivered goods. Any goods that have not been collected by the Customer will be stored at the expense and risk of the Customer.
Delivery takes place “ex works”, in accordance with Incoterms 2010. Liability for these goods is transferred to the Customer immediately Lugarde makes these available to the Customer.
The Customer and Lugarde can agree that Lugarde will arrange for the transport of the goods. In such a case, the risk of storage, loading, transport and unloading rests with the Customer. The Customer can take out insurance against these risks. The transport costs will be the responsibility of the Customer, unless agreed otherwise.
The Customer must ensure that the destination where the goods are to be delivered can be reached without obstacles. If, however, there is an obstacle which prevents delivery, the goods will be delivered up to the obstacle.
Article 7: Assembly
The Customer must assemble the goods in accordance with the assembly instructions. All assembly costs are the responsibility of the Customer.
The Customer must ensure that the required preparation activities, such as foundations, are executed according to the instructions and that the location where the goods are to be assembled are suitable for the purpose.
Article 8: Inspection and warranty
The Customer must inspect the goods directly after delivery. Possible defects or missing parts must be made known to Lugarde within 8 days after the delivery. In such a case, Lugarde shall as soon as possible proceed with repairs or deliver a replacement or the missing part. Reclamations do not suspend the payment obligation and do not give the Customer the right to compensation for delay damage or to refuse the delivery.
A 5-year guarantee is provided for the goods. This means that, if there is an instance of demonstrable materials or manufacturing errors, Lugarde must at its discretion, replace or repair the defective parts free of charge, or that Lugarde will refund the net amount of the invoice for the defective parts, without there being any obligation to pay compensation for damages on its side.
Complaints will not be processed and the guarantee becomes forfeit if:
the Customer does not report to Lugarde defects in the goods delivered within 8 days after establishment of the defect;
repairs to the delivered goods have been executed by the Customer and/or third parties;
items have been attached to the delivered goods which should not have been attached thereto;
defects are the consequence of a poor foundation, improper assembly, incorrect treatment, poor maintenance or the use of the wrong means of maintenance;
defects are the consequence of products that have not been delivered by Lugarde;
defects have been caused by man, animals or forces of nature.
The Customer must give Lugarde the possibility to investigate the warranty claim.
Article 9: Payment
Payment must take place within the term stated on the invoice.
Lugarde can require the Customer to pay the amount of the invoice in advance or a down payment. If the Customer does not pay the amount invoiced in advance in a timely fashion, Lugarde has the right to suspend delivery of the goods until the complete outstanding amount of the invoice has been paid. Lugarde is not liable for any possible damages that the Customer suffers by this suspension.
If the Customer does not pay within the payment term, then the Customer is in default and interest of 1% per month shall be charged to the Customer from the date of default until the complete due amount is paid. Any commenced part month will be regarded as a full month. All in-court and out-of-court collection costs that Lugarde pays to collect the claim from the Customer will be for the responsibility of the Customer. The out-of-court collection costs are set at 15% of the principal amount, with a minimum of €100.
All payments made by the Customer serve primarily to settle any interest and collection costs made by Lugarde and subsequently to settle the oldest outstanding invoices.
Article 10: Retention of property
All goods delivered and yet to be delivered remain the property of Lugarde, until all claims (sales price, interest and collection costs) that Lugarde has or will have regarding the Customer have been fully paid.
For as long as the property of the goods has not been transferred to the Customer, the Customer may not put a lien on the goods, grant to third parties any other right thereon or sell these onwards outside its normal conduct of enterprise.
The Customer must on each occasion do all that can reasonably be expected of it to safeguard the property rights of Lugarde.
If third parties put an attachment on the goods delivered under the retention of property or wish to vest rights thereon or make claims thereto, the Customer is obliged to notify Lugarde thereof immediately.
If the Customer does not or does not fully comply with its obligations towards Lugarde and in case of the dissolution of the Agreement, on whichever basis, then Lugarde is authorised to take back all goods, on which the retention of property rests, without prior notification of default or intervention of the courts, notwithstanding the right of Lugarde to complete compensation for damages.
Article 11: Dissolution
If an attachment is placed on the goods of the Customer, the Customer files for the suspension of payment, is declared in a state of bankruptcy or otherwise loses the free disposition over its capital, or in case of cessation or liquidation of the enterprise of the Customer, Lugarde has the right to suspend (further) execution of all Agreement(s) concluded with the Customer, or to dissolve these Agreement(s) in whole or in part, notwithstanding the right of Lugarde to compensation for damages.
If the Customer does not comply with one of its obligations towards Lugarde or Lugarde fears that the Customer will not be able to cover its obligations and the Customer is not able, upon the first request by Lugarde, to provide adequate surety for compliance with its obligations, then Lugarde has the right to dissolve the Agreement(s) in whole or in part, notwithstanding the right of Lugarde to compensation for damages.
As a consequence of the execution of sections 1 and/or 2, Lugarde is not liable to any compensation for damages. If any event as referred to in sections 1 and/or 2 occurs, all claims by Lugarde on the Customer shall be payable immediately and fully upon demand.
Article 12: Liability and expiry
Lugarde cannot be required to pay compensation for any damages that are a direct or indirect consequence of Force Majeure or any act by or omission of the Customer.
Lugarde is not liable to pay damages where Lugarde relied on incorrect and/or incomplete information provided by the Customer.
Lugarde is not liable for damages that the Customer suffers because the Customer does not store, keep, process, package, transport or assemble the goods in the correct manner.
Lugarde is not liable for any accidents with or damage to the goods caused as a result of wrong or inexpert use, assembly in violation of the assembly instructions or use in violation of the use instructions.
Lugarde is never required to pay compensation for damages as a consequence of consequential damage, such as missed turnover, missed profits, missed savings, production damage, enterprise damage, enterprise disruption, delay damage or indirect damages.
If Lugarde is liable for any damages, the liability of Lugarde is limited to the amount of the distribution made by the insurer of Lugarde. If, in any case, the insurer does not proceed with the distribution or the damages are not covered by the insurance, the liability of Lugarde is limited to the amount of the invoice, or at least to that part of the agreement to which the liability relates.
All claims upon Lugarde that have not been submitted within 1 year after their emergence are forfeit by expiry.
Article 13: Force Majeure
Lugarde is not required to be in compliance with any obligation if it is hindered from executing it as a consequence of Force Majeure. Force Majeure will be understood as including: extreme weather conditions; flooding; earth movements; terrorism; impediments by third parties; impediments in transport; labour strikes; riots, wars or threats of war; loss of or damage to goods during the transport thereof; export and import bans; lack of timely delivery by suppliers of Lugarde; fires, disruptions and accidents within Lugarde; (international) government measures.
If there is an instance of Force Majeure, Lugarde is relieved of its obligation to deliver. The circumstances of the case will dictate whether this will be the case entirely or only in part and will remain so, or whether delivery will only be suspended. Where it is possible to deliver after all, and/or for the delivery to be changed, then both Lugarde and the Customer will be required to utilise that option.
Article 14: Online Dispute Resolution
Platform of the EU Commission for online dispute resolution: http://ec.europa.eu/consumers/odr
Article 15: Final clauses
When interpreting the content and tone of these General Terms and Conditions for Delivery, the Dutch text thereof shall prevail in each case.
The Laws of the Netherlands are applicable to each Agreement between Lugarde and the Customer.
All disputes regarding Agreements between the Customer and Lugarde will be submitted to the competent court in the Court District where Lugarde has its seat of business.
These General Terms and Conditions for Delivery have been filed under number 717 at the Chamber of Commerce in Apeldoorn in the Netherlands.