Legal

LandeMarine

LandeMarine is the Dutch manufacturer of the Zwaardvis brand, among others, established in (5482 TK) Schijndel at Van Leeuwenhoekweg 21, registered with the Chamber of Commerce with number 16030672.

1. Definitions
   These general terms and conditions use the following definitions:
   1. Cancellation: the revocation of an order line or complete order and/or a reduction in the number of Products;
   2. LandeMarine: the legal entity LandeMarine B.V. with Chamber of Commerce number 16030672; the user of these general terms and conditions.
   3. Client: the natural person or legal entity who or which grants the contract for the delivery of products to LandeMarine or requests a corresponding quotation.
   4. Agreement: the agreement concerning the purchase and sale of the Products and, only if this has been explicitly set out in the Agreement, the performance of work related to the installation of the Products;
   5. Products: the furniture or components manufactured by LandeMarine, in the broadest sense of the word, including as part of the Zwaardvis brand.
   6. Amendment: an amendment to an Agreement or version of a Product, for example, the quantity or the colour of the fabric.
2. General
   1. These general terms and conditions govern all quotations issued by LandeMarine and any Agreement concluded between a Client and LandeMarine, as well as all agreements and further (legal) actions arising from this. If the general terms and conditions apply at any time, they will also govern a new Agreement between the Client and LandeMarine and all extra-contractual relationships between them, such as an unlawful act, without further statements being required.
   2. Deviations from these general terms and conditions are only possible if agreed in writing between the Client and LandeMarine.
   3. The applicability of any general terms and conditions of the Client is explicitly rejected, unless expressly agreed otherwise in writing.
   4. If one or more provision(s) is or are void or destroyed, the other provisions will remain in effect and the Client and LandeMarine will discuss new provisions that will replace the void or destroyed provisions. The purpose and intent of the original provisions will be observed as much as possible in this respect.
   5. If a situation arises between the parties which has not been arranged by these general terms and conditions, the parties will assess this situation ‘in the spirit’ of these general terms and conditions.
   6. Even if LandeMarine does not always require strict compliance with these general terms and conditions, LandeMarine reserves the right to demand strict compliance with these general terms and conditions in other cases.
3. Quotation and contract confirmation
   1. All offers and quotations made and issued by LandeMarine are non-binding and will only become binding once the proposal has been accepted by the Client, potentially by means of an official order, and has been confirmed by LandeMarine in writing by means of an order confirmation, unless indicated otherwise in the offer or quotation. In case of custom solutions, the quotations issued by LandeMarine will be accompanied by the corresponding drawings and the Client will be required to sign the corresponding quotation and associated drawings for approval in order to accept the custom solution. LandeMarine will only issue the written order confirmation after receipt of the quotation and drawings signed by the Client. If the Client wants, LandeMarine will use the fabric or leather provided by the Client. Alternatively, the Client can submit a sample to LandeMarine with its request to enable LandeMarine to prepare a corresponding quotation.
   2. The order confirmation is binding and the Client is required to duly check the order confirmation for this reason. Any corrections to this order confirmation are only possible if the Client communicates these to LandeMarine within two business days of the date on which the order confirmation was sent. If no notice is given within these two business days, the Products will be manufactured and delivered by LandeMarine in accordance with the specifications on the order confirmation.
   3. LandeMarine will list the date on the quotations. The quotations will be valid for 30 days as of this date, unless indicated otherwise in the quotation.
   4. The quotations issued by LandeMarine are based on the data and drawings set out in the request of the Client and the dimensions derived from these data and drawings. The Client is required to inform LandeMarine about facts and/or circumstances that may affect the execution of the Agreement insofar as the Client is or should have been aware of these.
   5. All offers and quotations made or issued by LandeMarine are based on the execution of the Agreement by LandeMarine in regular conditions and during regular working hours.
   6. The quotation will specify the Products to be delivered and, in case of the performance of work, a specific description of which work is included in this quotation. Work not listed in the quotation will never be covered by the Agreement and may result in higher fees as a result.
   7. LandeMarine cannot be held to fulfil an offer or quotation if this offer or quotation or a part thereof contains a manifest error or typo.
   8. The quotation states the prices excluding VAT, unless the VAT is explicitly listed in the quotation. Prices also do not include other government duties governing the sale and delivery.
   9. Delivery by LandeMarine will take place ex-works, unless explicitly indicated otherwise in the quotation or subsequently agreed otherwise in writing between LandeMarine and the Client.
   10. Besides these general terms and conditions, the Agreement is also governed by the special (price) conditions set out in the price lists in force at the moment the Agreement is concluded.
   11. If fabrics and components of Products are ordered and delivered separately, LandeMarine will charge the corresponding shipping and handling costs to the Client.
   12. If the order or the acceptance by the Client deviates from the order or the quotation, LandeMarine will not be bound to this order or quotation. The Agreement will not be concluded based on the deviating order or acceptance, unless LandeMarine confirms otherwise in writing.
   13. A compound price quotation does not require LandeMarine to execute part of the offer or quotation at a corresponding part of the quoted price.
   14. If LandeMarine has agreed with the Client that LandeMarine will also install the Product, the performance of this work will be explicitly included in the order confirmation.
4. Agreement
   1. The Agreement will only be concluded in accordance with Article 3.1 if LandeMarine accepts the contract granted by the Client by means of an order confirmation. The same applies to additional agreements related to additions or amendments.
   2. All delivery periods stated by LandeMarine are merely indicative and can never be considered deadlines. Delivery will always take place in consultation with the Client. The agreed delivery can be postponed by the Client for a period of no more than 2 weeks. If the delivery is postponed by the Client for more than 2 weeks, LandeMarine will charge its storage costs as set out in the price lists in effect at the moment of the Agreement is concluded to the Client.
   3. The parties are required to observe the confidentiality of all data of the other party insofar as this party knows, or should know, that these data are confidential.
   4. The Client will ensure that all data of which LandeMarine indicates that these are necessary for of which the Client should reasonably understand that these are necessary for the execution of the Agreement or, if the Agreement states that LandeMarine will use fabric or leather provided by the Client for the execution, are provided to LandeMarine in a timely fashion. If the data and/or materials needed for the execution of the Agreement have not been provided to LandeMarine in a timely fashion, LandeMarine can postpone the execution of the Agreement and/or charge the additional costs arising from the delay to the Client. This also applies to additional costs arising from changes to the situation at the location in relation to dimensions used and, if the Agreement includes the installation of the Products by LandeMarine, to the access to the location, specifically concerning the installation of the Products and the requirements associated with the access to the location required by LandeMarine.
   5. Cancellation of or Amendments to the Agreement can only take place with the written permission of LandeMarine.
   6. Since LandeMarine manufactures its Products in response to an order, the Client will owe additional costs to LandeMarine for Amendments made by LandeMarine after written acceptance as set out in Article 4.5 that are not due to a culpable shortcoming of LandeMarine.
   7. With respect to Products that are part of the regular range of LandeMarine, LandeMarine will implement the request for an Amendments by the Client within two business days of the date on which the order confirmation was sent, but only after written permission as defined in Article 4.5. Amendments to Products that are not part of the regular range of LandeMarine or to Products that are part of the regular range of LandeMarine but for which the request of the Client was received after the mentioned period of two business days are only possible after written acceptance as set out in Article 4.5 and against payment of the costs to be incurred in this respect by LandeMarine by the Client with a minimum of €50.
   8. Cancellation is only possible if the Client offers compensation for any costs already incurred by LandeMarine. In addition, LandeMarine will charge 15% of the value of the cancelled order or order line in case of Cancellation.
   9. The payment period of the invoices of LandeMarine will always be 30 days following the invoice date, except in the cases in which LandeMarine agrees on advance payment with the Client and sends a corresponding advance payment invoice. If applicable, the invoice will specify the following:
      • the price pursuant to the Agreement;
      • a specification of possible additional work;
      • a specification of all which LandeMarine can claim from the Client based on the Agreement.
   10. The payment period is a deadline. If the Client fails to pay on time, and this is not attributable to LandeMarine, the Client will be in default by operation of law without further notice of default being required. In this case, the Client will owe the statutory (commercial) interest with effect from the day on which the payment period expired until the day of full payment. LandeMarine will also have the right to take collection measures. All collection costs, both judicial and extrajudicial, will be borne by the Client. The extrajudicial costs will be determined as follows:
       a) Insofar as the Client did not act in the pursuit of a profession or company at the moment of the conclusion of the Agreement, LandeMarine will claim an amount equal to the maximum amount permitted by law in relation to extrajudicial collection costs as defined in and calculated in accordance with the Dutch Act on Standardisation of Extrajudicial Collection Costs, insofar as the amount due – after the occurrence of the default – is not paid within 14 days of the date following the day on which the summons was sent; or
       b) Insofar as the Client acted in the pursuit of a profession or company, LandeMarine will claim compensation of the extrajudicial collection costs, which costs will, by way of deviation of Article 6:96(4) DCC and by way of deviation from the Dutch Act on Standardisation of Extrajudicial Collection Costs and the associated Decree on Compensation for Extrajudicial Collection Costs, hereby be set at an amount equal to 15% of the total principal due with a minimum of €250.00 for each partially or fully unpaid invoice, without prejudice to the right of LandeMarine to claim the actual extrajudicial collection costs that exceed this amount. The judicial costs consist of all costs incurred by LandeMarine, even if these exceed the statutory liquidation rate.
   11. If an invoice is not paid on time, LandeMarine will also have the right to postpone the work or delivery related to the corresponding or other Agreement(s) with the Client, and to refuse any new orders, provided that this payment did not take place within 14 days after written summons to this end.
   12. LandeMarine has the right to first allocate any payments made by the Client to the costs, subsequently to the interest due, and finally to the principal and the interest still being accrued.
5. Installation
   1. Insofar as the Agreement concerns the work that LandeMarine must perform for the installation of Products, the Client will be liable vis-à-vis LandeMarine for the correct and timely provision and compliance with all facilities and conditions necessary for the installation of the Products by LandeMarine.
   2. The Client will at least ensure that:
      • The staff of LandeMarine or the third party engaged by it can perform their work related to the installation of the Products at the location, which will take place during the regular working hours and, if LandeMarine considers this necessary, outside of the regular working hours, provided this has been communicated with the Client.
      • The designated location is suitable for the installation of the Products.
      • The location is accessible – in a regular manner – for the installation of the Products.
   3. Damage and costs incurred by LandeMarine caused because the Client did not meet its obligations set out in Article 5.2 will be borne by the Client.
   4. All periods related to the installation mentioned by LandeMarine are merely indicative and can never be considered a deadline.
6. Intellectual property rights
   1. LandeMarine retains all potentially applicable intellectual property rights to, inter alia, designs, images, drawings, samples and models provided to the Client. The Client must immediately return these matters at the first request of LandeMarine, without prejudice to any other legal means to which LandeMarine is entitled.
   2. The Client may not duplicate, publish, make commercial use of or display any materials of LandeMarine subject to intellectual property rights without the explicit prior permission of LandeMarine.
   3. LandeMarine has the exclusive right to create, copy, and publish drawings, sketches, pictures and all other images of Products for commercial purposes, both offline and online. If the Client accepts the first request to this end, the Client will give LandeMarine the opportunity to take (or have another party take) pictures of the Products at the location.
   4. The Client may not rent out, lend, or sell the Products for public use (promotion, advertising, integration into audio-visual or other works) without the prior written permission of LandeMarine.
7. Storage and retention of ownership
   1. If the Products delivered by LandeMarine are not accepted by the Client on the agreed delivery date for any other reason than a faulty delivery or the refusal of the Client to accept the Products, LandeMarine will attempt a second delivery within a reasonable period. After the refusal to accept the delivery, LandeMarine will have the right to charge the storage costs and any other demonstrable damage and reasonable costs to the Client.
   2. All Products (to be) delivered will remain the exclusive property of LandeMarine as long as the Client has not (fully) paid the invoices related to the delivery, as well as any previous or later invoices.
   3. As long as the ownership of the Products referred to in paragraph 2 has not yet transferred to the Client, the Client may not grant a lien on these Products or any other right to third parties. If the Client concludes the Agreement to sell the Products directly to a third party, the end customer, and LandeMarine and the Client have agreed in writing that the Products will be delivered directly to the end customer, by way of deviation from Article 3.9, the Client will be required to declare a comparable retention of ownership applicable vis-à-vis the end customer. In case of a violation of this clause or if the Client cannot duly invoke its retention of ownership, the sales price/contract price will become immediately exigible in full, without prejudice to the rights of LandeMarine based on the aforementioned retention of ownership.
   4. The Client is to store, insure, and keep the Products delivered subject to the retention of ownership insured against fire damage, explosion damage, and water damage, as well as against theft, and to grant LandeMarine access to this insurance policy at its first request.
   5. The Client will be required to inform LandeMarine as soon as may reasonably be expected of it if third parties levy attachment on the properties of LandeMarine or wish to establish or exercise any rights in relation to these properties.
   6. As long as the Client is in default or experiences payment difficulties, LandeMarine will have the right to retrieve its properties without any prior notice (of default) being required, without prejudice to its other rights, including the full or partial dissolution of the Agreement without judicial intervention. The Client will always be considered to be experiencing payment difficulties if a request for suspension of payments has been filed, its bankruptcy has been requested, a statutory debt restructuring scheme for the Client in its capacity as a natural person has been declared applicable, or if attachment has been levied on the Client.
8. Liability
   1. Except in case of gross failure attributable to LandeMarine, LandeMarine will never be liable for operational damage, other indirect damage, including consequential damage (including caused by a possible late delivery or use of the Products on other properties), damage suffered by third parties, loss of profits, loss of income, and additional costs caused by facts or circumstances not attributable to LandeMarine.
   2. LandeMarine is not liable for damage of any kind caused by the use of incorrect and/or incomplete data provided by the Client for the performance of work by LandeMarine.
   3. The Client indemnifies LandeMarine against any claims by third parties that suffer damage in relation to the execution of the Agreement which damage is attributable to the Client.
   4. Complaints about delivered Products must be described clearly and completely, preferably submitted to LandeMarine in writing or by electronic means with pictures showing the complaint, within a reasonable period after the discovery of the shortcomings by the Client. In case of a non-consumer purchase of Products, ‘reasonable’ will be defined as within 5 business days following the delivery date. After the expiry of this period without any written complaints made by the Client, the delivered Products will be considered to have been irrevocably and unconditionally accepted by the Client.
      In case of a consumer purchase of Products, notice within a period of two months following the discovery of the shortcoming will always be considered reasonable. The Client may lose its corresponding rights due to a failure to submit the complaint in a timely fashion.
   5. With due observance of Article 8.4, the Client is required to assess (or to have another party assess) the delivered Products at the moment of delivery in an expert manner, or, if this is demonstrably impossible, as soon as possible.
   6. If a complaint has been submitted, the Client must keep the Products in question available to LandeMarine and give LandeMarine the opportunity to investigate the complaint.
   7. If a complaint is valid, LandeMarine will replace the Products or, if this is no longer possible or useful, refund a corresponding part of the price to the Client.
   8. The Products to be returned in relation to a complaint must be made available in the original packaging to the greatest extent possible. The parties will discuss the transport of these Products.
   9. If a complaint is submitted on time, the Client will still be required to purchase and pay for the purchased Products. The Client does not have the right to set-off.
   10. If it is no longer possible or useful to deliver or replace the Products and this is attributable to LandeMarine, LandeMarine will only be liable within the limits of this article.
   11. If LandeMarine is found to be liable, the liability of LandeMarine will be limited to the amount(s) which LandeMarine can claim based on its liability insurance, including the excess that must be borne by LandeMarine in relation to this insurance. LandeMarine will provide the Client with the corresponding insurance policy at its first request. If and insofar as the liability insurance does not offer payment for any reason, the liability of LandeMarine will at least be limited to no more than the amount of the agreed price for the corresponding order confirmation, excluding VAT.
9. Conformity and warranty
   1. Since LandeMarine has created the Products especially for and in accordance with the data provided by the Client in relation to the execution of an Agreement, no potential cool-off period and reflection period exists and the Products cannot be returned.
   2. The Products delivered by LandeMarine must have the properties which the Client may expect from them in case of regular use based on the Agreement (conformity). If the above clause is not met and this is not attributable to LandeMarine, the Client will have the right to repairs or replacement, (partial) dissolution of the Agreement and/or a price discount.
   3. Besides the statutory obligation set out in Article 9.2, LandeMarine offers the Client a warranty with respect to the delivered Products insofar as these contain shortcomings for which LandeMarine cannot plausibly demonstrate that these are the result of use not in line with their intended use. LandeMarine will engage an external expert for this who will prepare a report to this end. If LandeMarine can plausibly demonstrate that the shortcomings are the result of use not in line with the intended use, the costs of the external expert will be borne by the Client. Unless explicitly agreed otherwise in the quotation, LandeMarine will offer a warranty on assembly and manufacturing shortcomings in its Products for a period of 2 years from the day of the delivery, which warranty offers repairs for these assembly and manufacturing shortcomings at the request of the Client.
   4. Warranty claims must be submitted to LandeMarine within the warranty period, stating the original invoice or order number.
   5. The warranty expressly does not cover:
      • Repairs performed by third parties;
      • Submitted materials, including fabric or leather provided by the Client, if the Agreement states that LandeMarine will use these in the context of its execution;
      • Regular wear and tear;
      • Damage caused by improper use or incorrect maintenance;
      • Folds in the fabric;
      • Natural properties of natural products, at least including wood, wood veneer, and leather, such as insect bites, scars, and colour nuances;
      • Fabrics treated with a dirt-repellent coating;
      • Colour deviations in shown and used fabrics, as well as in subsequent orders.
      • Damage, such as, but not limited to, damage caused by moisture due to the uncovered external use of Products.
   6. The warranty provisions will only apply if the delivered Products are used in line with their intended use. Abnormalities in the delivered Products with respect to their colour, resistance to wear, structure, and the like, which are acceptable from a technical point of view based on applicable, regular standards, or based on usual commercial practices, may limit or exclude the right to warranty and/or compensation.
   7. Fixed components of Products are not available separately. Only components included in the price list are available separately.
10. Applicable law and disputes
    1. All offers, quotations, Agreements, and any resulting agreements and further (legal) actions between the Client and LandeMarine are governed by the laws of the Netherlands.
    2. Any differences of opinion between the Client and LandeMarine will be resolved in consultation or through mediation (provided that both parties have given permission for this). If this does not lead to a solution, the disputes will exclusively be settled by the Dutch court competent in the place where LandeMarine is established at the moment on which a dispute occurs.

Version 2022-1, 1 July 2022