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JABO CARPETS B.V. GENERAL TERMS AND CONDITIONS

Article 1 Definitions 

Jabo Carpets 

: 

Jabo Carpets B.V., located at Sasdijk 14, 8281 BM Genemuiden, the Netherlands, and registered with the Chamber of Commerce in Zwolle under number 05047367.

Counterparty 

:

any legal entity or natural person who has entered into an agreement with Jabo Carpets or has received an offer to do so from Jabo Carpets. 

Product 

:

all products traded by Jabo Carpets.

Service

:

all services performed by Jabo Carpets.

 

Article 2 Applicability

  1. These general terms and conditions apply to all offers, orders, order confirmations and agreements of and with Jabo Carpets, whether or not in writing, or any further agreements resulting from such agreements which Jabo Carpets enters into with its Counterparty.
  2. Should the Counterparty refer to other terms and conditions in its offer or acceptance, their applicability is expressly rejected, unless such terms and conditions have been negotiated with and expressly accepted in writing by Jabo Carpets.
  3. The Counterparty that has previously entered into agreements with Jabo Carpets shall be deemed to (tacitly) agree to the applicability of these terms and conditions to subsequent agreements with Jabo Carpets, whether or not they have been explicitly declared applicable.
  4. If one or more provisions of these general terms and conditions are wholly or partially void or voidable, the remaining provisions shall remain in full force and effect. The parties shall then consult to agree on new provisions to replace the void or voided provisions, whereby, if and insofar as possible, the purpose and spirit of the original provision shall be observed. 
  5. The Counterparty  is not permitted, without the prior written consent of Jabo Carpets, to transfer any rights or obligations arising from any agreement with Jabo Carpets to a third party.
  6. If there is a conflict between the agreement entered into between Jabo Carpets and the Counterparty and these general terms and conditions, the agreement shall take precedence.

 

Article 3 Quotations

  1. All quotations and offers made by Jabo Carpets are without obligation and may be withdrawn or modified, unless the quotation or offer expressly states otherwise.
  2. Notifications, promises and/or quoted orders shall be binding on Jabo Carpets only if and to the extent that they have been confirmed by Jabo Carpets in writing.
  3. Jabo Carpets reserves the right to refuse an order without giving reasons.
  4. Offers do not automatically apply to future orders.
  5. Quotations are based on any information provided by the Counterparty at the time of request.
  6. Notwithstanding the above, Jabo Carpets's quotations and offers shall be valid for sixty (60) days from the date of dispatch of the offer or quotation, or as much shorter or longer as is indicated in the offer or quotation.
  7. Offers from Jabo Carpets are based on performance of the agreement by Jabo Carpets under normal conditions and during normal working hours.
  8. If the offer is composed of different amounts, Jabo Carpets is not obliged to perform any part of the offer at a corresponding proportion of the price stated in the offer.

 

Article 4 Information provided by Jabo Carpets and the Counterparty   

  1. Any design drawings, work and detail drawings, models, computer software, photographic images, samples, designs, pegboards, specified dimensions, quantities, drawings, colours, materials and/or other data provided by Jabo Carpets to the Counterparty shall only serve as approximate descriptions. Only if the goods deviate very substantially from the aforementioned information will the Counterparty be entitled to terminate the agreement within six (6) days from the date of delivery.
  2. The information mentioned in this article, along with the trademark, patent, trade name, model, copyright or any other right to this information, shall remain the property of Jabo Carpets and, unless expressly otherwise agreed, shall not be transferred to the Counterparty. The use of the aforementioned information, other than in the context of this agreement, shall be permitted only with the written consent of Jabo Carpets.
  3. Design drawings, working and detail drawings, models, photographic images, samples, designs, logos, specified dimensions, quantities, drawings, colours, materials and/or other information provided by the Counterparty to Jabo Carpets shall be assumed by Jabo Carpets to be correct and adequate, without any further examination. The Counterparty shall indemnify Jabo Carpets against any third party claims, in or out of court, alleging that a trademark, patent, trade name, design, copyright or any other right of that third party has been infringed by the use by Jabo Carpets of the data mentioned in this Article. If a third party objects to delivery, Jabo Carpets shall, without prejudice to the foregoing, be entitled to refuse to carry out the delivery and/or to cease it immediately and to demand compensation from the Counterparty for the costs incurred and damages suffered, without Jabo Carpets incurring any liability to pay any compensation to the Counterparty.

 

Article 5 Establishment of the agreement 

  1. The agreement comes into effect when:
    • it is set out in writing by the parties in an agreement signed by them;
    • Jabo Carpets receives written acceptance from the Counterparty of an offer made by Jabo Carpets, unless Jabo Carpets revokes its offer immediately after such acceptance; or
    • Jabo Carpets has begun to perform the agreement. For oral agreements, the invoice shall be deemed to reflect the agreement accurately and completely, subject to complaints within thirty (30) days of the invoice date; 
    • agreement is reached in a known and replicable manner.
  2. An amendment and/or addendum to an agreement shall only be established when it is expressly accepted by Jabo Carpets in writing. Any changes must be notified to Jabo Carpets in a timely manner and in writing.
  3. Verbal undertakings and agreements made with Jabo Carpets subordinates shall not bind Jabo Carpets until and insofar as they have been confirmed in writing by Jabo Carpets.
  4. The Counterparty is obliged, on request by Jabo Carpets, to provide security for the fulfilment of its obligations towards Jabo Carpets.

 

Article 6 Performance of the agreement

  1. Jabo Carpets shall determine the manner in which the agreement is performed, unless otherwise expressly agreed in writing between the parties. Jabo Carpets is entitled to make part deliveries and to invoice these part deliveries separately. 
  2. Jabo Carpets shall endeavour to perform the agreement to the best of its ability. However, it can never be obliged to perform an agreement that infringes a right, breaches a legal obligation or is in violation of customary practice according to unwritten law.
  3. Jabo Carpets reserves the right to make minor changes to the agreement (as stated in the quotation or offer), without incurring any liability to pay damages to the Counterparty as a result thereof and/or without giving the Counterparty any right to cancel the agreement or have it terminated. Jabo Carpets additionally reserves the right to make changes to the specifications that are necessary to bring it into compliance with applicable safety or other legal requirements or, if the products are to be delivered in accordance with the Counterparty's specification, that do not materially affect their quality or function. 
  4. Minor deviations, including minor deviations in the colour, thickness, dimensions, quantities, bowing, pile finish (shading) etc. of the product delivered by Jabo Carpets with a product previously delivered by Jabo Carpets, or with a sample provided by Jabo Carpets to the Counterparty, shall not entitle the Counterparty to refuse the product, to rescind the agreement (or have it rescinded) or to claim damages from Jabo Carpets.
  5. The Counterparty shall ensure at its own expense and risk that: 
    • access to the place where the product is to be delivered is suitable for the necessary transport thereof; 
    • the designated place is suitable for delivery of the product and/or provision of the service.
  6. Without prejudice to the other provisions of these terms and conditions, the Counterparty shall in any event ensure, at its own expense and risk, that: 
    • all necessary safety and precautionary measures have been taken and enforced, and that all measures have been taken and enforced in order to comply with the applicable government regulations with respect to provision of the service(s);
    • it will provide Jabo Carpets with all necessary information for the order in a timely manner; all this to be determined by Jabo Carpets in a reasonable manner. Damages and costs incurred by Jabo Carpets if the conditions stipulated in this article are not duly met in good time shall be borne by the Counterparty. 
  7. If and insofar as the proper performance of the agreement so requires, Jabo Carpets is entitled to have certain work performed by third parties. If Jabo Carpets makes use of third parties in the performance of the order, it shall never be liable for any damage arising therefrom. Such damage shall include: (minor) damage to the property of the Counterparty and/or third parties, etc. 
  8. All costs resulting from government measures, including safety regulations, shall be borne by the Counterparty. 
  9. The residues (scraps, waste) of materials or semi-finished products provided by the Counterparty for production shall be deemed to have been transferred by the Counterparty to the ownership of Jabo Carpets.
  10. The Counterparty shall indemnify Jabo Carpets against any claims of third parties that incur damages in connection with the performance of the agreement and which are attributable to the Counterparty.

 

Article 7 Delivery 

  1. Unless otherwise agreed in writing by the parties, delivery of goods shall be made “Free Carrier (FCA)” in accordance with the version of the ICC Incoterms applicable at the time of the order. The agreed manner of delivery shall also apply to all subsequent agreements.
  2. The Counterparty is obliged to ensure, on the agreed delivery day, that the products for delivery are received, that the quantity of delivered products and specifications are checked and that the Counterparty or its representative signs for receipt. If the products have been delivered to the agreed place, it is assumed that delivery has taken place in accordance with the agreed quantity and specifications. This also applies if the Counterparty or its representative is not present to sign for receipt of the goods.
  3. If the Counterparty does not take delivery of the products before the expiry of the latest agreed delivery date or if the Counterparty rejects the products, Jabo Carpets may store the product for one month, calculated from the originally agreed delivery date, at the Counterparty’s expense and risk. During storage, the Counterparty can only remedy its default by accepting the items placed in storage.
  4. When determining the delivery date, the Counterparty must bear in mind that the products delivered by Jabo Carpets require at least 24 hours to acclimatise to environmental factors such as temperature and humidity. 
  5. Jabo Carpets is entitled to set minimum and maximum delivery periods for each agreement.
  6. An agreed delivery time is not a deadline, unless expressly agreed otherwise. If, in the opinion of the Counterparty, Jabo Carpets fails to deliver on time, the Counterparty must give Jabo Carpets written notice of default.
  7. The delivery period is based on the circumstances prevailing at the time of the conclusion of the agreement. If delay occurs through no fault of Jabo Carpets due to change of said circumstances or because products ordered in time for the performance of the agreement are not delivered to Jabo Carpets in time, the delivery period shall be extended as far as necessary. In that case, the delivery period will in any event be extended by thirty (30) days – if reasonableness and fairness so require, this period may be longer – without Jabo Carpets or its Counterparty being entitled to terminate the agreement and without any obligation to pay the Counterparty any compensation. 

 

Article 8 Prices 

  1. All agreed prices are binding and exclusive of the sales tax payable thereon. The Counterparty is obliged to pay the sales tax due on the invoice amount.
  2. Jabo Carpets is entitled to charge an advance amount or to have an invoice fully paid in advance.
  3. If, during the period between the date of the quotation or offer and the date of delivery, cost prices increase or, where goods are supplied over time, the cost prices increase during that time, Jabo Carpets is entitled to increase the price charged to the Counterparty accordingly. Jabo Carpets shall inform the Counterparty of any intention to increase the price or rate. Jabo Carpets shall specify the amount of the increase and the effective date.
  4. If obvious calculation errors have been made by Jabo Carpets, it may correct them at any time.
  5. All prices used by Jabo Carpets are stated in euro, unless otherwise agreed in writing.

 

Article 9 Payment  

  1. All payments shall, unless otherwise expressly agreed in writing between the parties, be made within thirty (30) days of the invoice date. The Counterparty shall be entitled to no discount, suspension or set-off.
  2. Payment shall be made directly to Jabo Carpets by deposit into the bank account number specified by Jabo Carpets, unless otherwise agreed. The date of credit to Jabo Carpets's bank account shall count as the payment date.
  3. If the Counterparty fails to meet, or does not properly meet, its payment obligations towards Jabo Carpets, as stated above in paragraph 1, it shall be in default without the need for any further summons or notification. In such a case, Jabo Carpets is entitled to charge the Counterparty interest on the outstanding amount at the rate of 1% per month or the statutory interest rate, whichever is higher, calculated from the due date of the invoice until the date of payment in full. 
  4. If Jabo Carpets proceeds to extrajudicial measures in case of default of the Counterparty, the costs thereof shall be borne by the Counterparty. These are the costs above the principal amount in accordance with the Decree for reimbursement of extrajudicial collection costs dated July 1 2012. These extrajudicial costs are minimum of €40 and a maximum, depending on the principal amount, of €6,775. These extrajudicial costs and interest shall then first be paid from the payments incoming from defaulting Counterparty, after which the oldest outstanding invoices shall be debited with the remaining amount. 

 

Article 10 Retention of title 

  1. Jabo Carpets reserves title to all the product(s) delivered or to be delivered by it to the Counterparty until the purchase price for all such product(s) has been paid in full. Retention of title also applies to all the obligations arising from this agreement that Jabo Carpets may have against the Counterparty. 
  2. Until such time as ownership of the delivered products has been transferred to the Counterparty, the Counterparty may not transfer ownership thereof to third parties, pledge them or otherwise encumber them, dispose of them or transfer their use, under any title whatsoever, unless otherwise agreed in writing. 
  3. The Counterparty is obliged to keep the products delivered under retention of title with due care and as the recognisable property of Jabo Carpets.  
  4. Should the Counterparty default in the fulfilment of its payment obligations towards Jabo Carpets and/or should Jabo Carpets have good reason to fear such default and/or in cases such as those referred to in Article 12 of these conditions, Jabo Carpets is entitled to reclaim the products delivered under retention of title. The Counterparty hereby authorises Jabo Carpets to take possession of the products concerned and to enter the premises in which these products are located as well as those providing access thereto.
  5. The Counterparty is obliged to insure the products against fire, explosion, water damage and theft for so long as title is retained and to present these insurance policies to Jabo Carpets on demand.

 

Article 11 Cancellations 

  1. The Counterparty may not cancel an order unless otherwise specified in the agreement. Changes and/or additions to this provision may only be agreed in writing. 
  2. In the event that the parties cancel an order already placed in mutual consultation and in the manner described in paragraph 1 of this article, the Counterparty shall be obliged to compensate Jabo Carpets for any resulting loss unless otherwise agreed in writing. The loss is determined as the net amount involved in the order.   

 

Article 12 Suspension and termination

  1. If the Counterparty fails to fulfil its obligations or gives Jabo Carpets good reason to fear that it will do so, Jabo Carpets is entitled to suspend the fulfilment of its corresponding obligations, as well as those arising from the same legal relationship or from business that the parties have regularly conducted with each other, without prejudice to the rights accruing to Jabo Carpets under the law or under these terms and conditions.
  2. Without prejudice to any other rights and the provisions elsewhere in these terms and conditions, and without prejudice to the right to damages, the Counterparty shall immediately be held in default and Jabo Carpets shall be entitled to unilaterally terminate all or part of the agreement without notice of default and without judicial intervention by means of a registered letter or bailiff's writ, if: 
    • the Counterparty  fails to fulfil its obligations under the agreement or other agreements arising therefrom;
    • after the conclusion of the agreement, Jabo Carpets becomes aware of circumstances giving good reason to fear that the Counterparty will not meet its obligations in a timely manner or in full;
    • there is any liquidation, (application for or own declaration of) bankruptcy or (provisional) suspension of payments, debt restructuring or cessation of business by the Counterparty, or where seizure has been imposed on the Counterparty if and insofar as the seizure has not been lifted within two months;
    • the Counterparty was requested on conclusion of the agreement to provide security for the fulfilment of its obligations thereunder, and this security has not been provided or is insufficient;
    • Jabo Carpets's credit insurer revokes or limits the credit limit issued to the Counterparty.
  3. Furthermore, Jabo Carpets may terminate the agreement if circumstances arise such that fulfilment of the agreement is impossible or can no longer be demanded in accordance with standards of reasonableness and fairness, or if other circumstances arise such that unaltered maintenance of the agreement cannot reasonably be expected.
  4. Upon termination, mutually existing claims become immediately due and payable. The Counterparty shall be liable for any losses incurred by Jabo Carpets, including loss of profit and transport costs.

 

Article 13 Claims 

  1. The Counterparty or its representative must inspect the purchased goods and/or completed work upon delivery, or as soon as possible thereafter.
  2. Claims or complaints must be submitted in writing to Jabo Carpets within seven (7) days of receipt of the goods or completion of the service, failing which any Counterparty right against Jabo Carpets in respect of visible defects or shortcomings shall lapse. Claims or complaints due to defects, deviation from the stated specification or externally observable damage must be accurately described by the Counterparty on the signed waybills.
  3. Non-visible defects or shortcomings must be reported to Jabo Carpets within seven (7) days after they have been discovered, or reasonably should have been discovered, but within three (3) months of the delivery date, by registered letter with acknowledgment of receipt to Jabo Carpets, failing which any rights of the Counterparty against Jabo Carpets with regard thereto will lapse. Claims or complaint due to defects, deviation from the stated specification or externally visible damage must be accurately described by the Counterparty.  
  4. A claim under paragraphs 2 and 3 of this article is not possible if:  
    1. the Counterparty is in default towards Jabo Carpets;  
    2. the Counterparty itself has carried out the application or repairs, or has had them carried out by third parties on the products supplied by Jabo Carpets incompetently and/or without the consent of Jabo Carpets;
    3. the Counterparty has not immediately reported visible and readily detected invisible defects after delivery of the products. In the case of floor covering, visible and readily detected invisible defects shall in any event be reported to Jabo Carpets before installation commences. In the event that the Counterparty installs the floor covering in question without allowing Jabo Carpets to inspect it, no further claims can be made;  
    4. the products have been cut, cut up, or in the any other way worked or processed, used or damaged;  
    5. the delivered goods have been exposed to abnormal conditions, such as contamination, external force or overload, or have otherwise been handled carelessly or contrary to Jabo Carpets's instructions;  
    6. loss of quality has occurred due to poor maintenance, natural wear and tear or because the delivered products have been stored for longer than normal;  
    7. there are minor deviations in quality, dimensions, colours, material structure, finish and/or packaging that are customary in the trade and/or technically unavoidable ;  
    8. there are dye granules, nuances and shade differences, natural markings, pile reversal (shading) or water marks, soiling, colour fading, and damage caused by wearing stiletto heels or similar footwear.
    9. there is a colour mismatch between products ordered or laid at different times or products from different dye baths.  
  5. Jabo Carpets will process the complaint promptly after notification, unless the complaint is out of time. The Counterparty must give Jabo Carpets the opportunity to investigate the complaint. Complaints shall not entitle the Counterparty to suspend payment of the amount it owes to Jabo Carpets.
  6. If in the opinion of Jabo Carpets the complaint is well founded, Jabo Carpets shall, at its option, either repair the delivered products or replace them free of charge, in exchange for the return of the originally delivered products; or pay fair compensation up to a maximum of the invoice value of the delivered products that are the subject of the complaint.  Jabo Carpets is not liable for any further compensation or compensation for indirect damage.
  7. The Counterparty has no right to refuse delivery of the sold products, or to return them, unless Jabo Carpets so agrees in writing and the Counterparty reimburses Jabo Carpets’s costs, which shall be fixed at a minimum of 20% of the invoice amount.  
  8. Complaints regarding the invoice amount must be submitted to Jabo Carpets by registered letter with acknowledgment of receipt within fourteen (14) days of the relevant invoice.

 

Article 14 Liability 

  1. The liability of Jabo Carpets for all direct damage and costs caused or directly related to a failure in the performance of the agreement shall at all times be limited to the net invoice amount. 
  2. Jabo Carpets shall never be liable for consequential damage or any indirect damage and costs caused by or directly related to a defect in the delivered products, including waiting hours or costs of additional work. 
  3. Jabo Carpets may provide advice on the processing of its products - for example, installation, application and use. Following this advice leads, in Jabo Carpets's view, to the best results. Jabo Carpets accepts no liability for the accuracy of this advice or, in particular, for its implementation. 
  4. The Counterparty shall indemnify and hold Jabo Carpets harmless in respect of any third-party claims for compensation for losses for which Jabo Carpets's liability is excluded in these terms and conditions in respect of the Counterparty, unless such losses are partly the result of gross negligence on the part of Jabo Carpets.
  5. Jabo Carpets is not liable for losses resulting from incorrect information provided by the Counterparty.
  6. Jabo Carpets's liability shall also be limited to the amount paid to it by its insurer for relevant damages and costs. 

 

Article 15 Force majeure 

  1. On the part of Jabo Carpets, force majeure shall be deemed to exist if, after the conclusion of the purchase agreement, Jabo Carpets is prevented from fulfilling its obligations under this agreement or from their preparation as a result of war, threat of war, civil war, terrorism, riots, commotion,  pandemic or epidemic, fire, water damage, flooding, strikes, sit-ins, lockouts, import and export restrictions, government measures, machinery defects, ICT problems such as hacking, disruptions in the energy supply whether occurring at Jabo Carpets's premises or on the premises of third parties from whom Jabo Carpets must obtain all or part of the necessary goods or raw materials, or during storage or transport, whether or not under its own management, and furthermore due to any other cause beyond the control or sphere of risk of Jabo Carpets.
  2. If Jabo Carpets cannot fulfil its obligations, or cannot do so properly due to force majeure - as defined in paragraph 1 of this article - those obligations shall be suspended until such time as Jabo Carpets is again able to perform the agreement in the agreed manner.
  3. In the event that Jabo Carpets has already partially fulfilled its obligations when the force majeure occurs or if it can only partially fulfil its obligations, Jabo Carpets is entitled to invoice the already delivered or deliverable part separately. In this event the Counterparty shall be obliged to pay this invoice as if it were a separate agreement.
  4. If Jabo Carpets proves unable to fulfil its obligations to the Counterparty  within a reasonable period of time as a result of an event described in paragraph 1 of this Article, both Jabo Carpets and the Counterparty shall be entitled to terminate the agreement existing between them, with no obligation on the part of Jabo Carpets to compensate the Counterparty  for any losses so incurred.

 

Article 16 Warranty 

  1. Jabo Carpets guarantees that the products it sells are free from design, material, and manufacturing defects.
  2. The warranty period is 6 months.
  3. If within the warranty period it appears that the work performed was defective, Jabo Carpets will repair or cause the defect to be repaired free of charge. The obligation to repair does not extend to the repair of consequential damage and does not include any work or supplies that were not included in the contract.
  4. The Counterparty may not invoke the warranty referred to in the previous paragraph of this article if one or more of the circumstances referred to in Article 13, paragraph 4, have occurred.

 

Article 17 Intellectual property rights 

  1. The Counterparty is aware that the home textiles, models, samples, logos, advice, ideas, brochures, images, etc. supplied, as well as any derivatives thereof, may be subject to intellectual property rights, which rights it will respect and refrain from infringing. The Counterparty is expressly prohibited to use, reproduce, disclose, make available to third parties or otherwise transfer for use these documents, materials and/or goods for purposes other than those stipulated in the agreement between Jabo Carpets and the Counterparty without the express written consent of Jabo Carpets.
  2. In the event of violation of the provisions of this Article, the Counterparty shall forfeit to Jabo Carpets an immediately due and payable penalty of €50,000 (in words: fifty thousand euro), which may not be subject to any discount or set-off, without prejudice to its right to claim further damages.

 

Article 18 Choice of law and jurisdiction 

  1. These terms and conditions and all agreements to which they apply in whole or in part, or any further agreements resulting from such agreements, are governed by Dutch law.
  2. The Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980, Trb. 1981, 184 and 1986, 61), is not excluded.
  3. Any disputes which may arise between the parties as a result of this or further agreements shall in the first instance be adjudicated by the Court of Overijssel, Zwolle location.
  4. A dispute shall be deemed to exist as soon as either party so declares.