Terms and Conditions of Sale (2017)
Unless Iznik Tiles and Ceramics B.V. and the Customer otherwise agree in writing, these Terms are incorporated into and form part of any contract (‘the Contract’) between Iznik Tiles and Ceramics and the Customer for the supply of Goods by Iznik Tiles and Ceramics B.V..
In these Terms unless the contrary intention appears:
1.1 All agreements with buyer are governed by Dutch Law, to which these General Terms and Conditions are supplementary.
1.2. Any litigation between the buyer and the vendor shall be judged by the court of the place of business of the buyer, the Court of Amsterdam, including any legal provisions given in summary proceedings, excepting any imperative law. These delivery and sales conditions have been registered with the Chamber of Commerce in Amsterdam.
1.3 ‘Iznik Tiles and Ceramics’ means Iznik Tiles and Ceramics B.V. (KvK: 61089257) and any and all of its “Related Bodies Corporate” and/or “Associated Entities”;
1.4 ‘Customer’ means the party or parties entering into the Contract with Iznik Tiles and Ceramics B.V.;
1.5 ‘Goods’ means any tiles and related products (including indoor or outdoor wall, floor and ceiling covering ), extending to kitchenware and bathroomware and also including products such as tools, adhesives, grouts and any and all other ancillary or associated products supplied by Iznik Tiles and Ceramics B.V. to the Customer and further extending to the supply of tools or equipment on a hire-charge basis; and
1.6 ‘Terms’ means these terms and conditions.
2.1 The Contract and these Terms constitute the entire agreement between Iznik Tiles and Ceramics B.V. and the Customer. All prior negotiations, representations, understandings, arrangements and agreements (whether oral and/or in writing) are superseded by the Contract and these Terms.
2.2 The Contract and these Terms will in all circumstances prevail over the Customer’s terms and conditions (if any), unless Iznik Tiles and Ceramics B.V. agrees in writing to be bound by the Customer’s terms and conditions or any of them.
2.3 To the extent that there is any inconsistency between the Contract and these Terms, these Terms prevail unless and to the extent only that Iznik Tiles and Ceramics B.V. otherwise agrees in writing PROVIDED ALWAYS if Goods are supplied by Iznik Tiles and Ceramics B.V. to a Commercial Credit Trade Account Customer, then the terms and conditions of sale incorporated into the Commercial Credit Trade Account shall prevail to the extent of any inconsistency or conflict with these Terms.
3.1 The price for the supply of Goods will be specified in the invoice issued by Iznik Tiles and Ceramics B.V. to the Customer.
3.2 Unless otherwise stated, the price for the supply of any tiles by Iznik Tiles and Ceramics B.V. will be on a per square metre basis.
3.3 Iznik Tiles and Ceramics B.V. may increase the price of Goods if the price increase results from the introduction of any legislation, regulation or government policy.
3.4 Unless otherwise stated:
3.4.1 the price for the Goods agreed in the Contract and any other amount payable under the Contract or these Terms shall be inclusive of any tax payable pursuant to Dutch Law.
3.4.2 The Customer will be required to pay to Iznik Tiles and Ceramics B.V. an amount equal to relevant taxes and duties (which will be included in the invoice).
4.1 The Customer will, unless Iznik Tiles and Ceramics B.V. and the Customer otherwise agree, bear the cost of delivery of the Goods.
4.2 Iznik Tiles and Ceramics B.V. will make all reasonable efforts to have Goods delivered to the Customer by the date agreed between the parties, but Iznik Tiles and Ceramics B.V. will not be liable for:
4.2.1 any failure to deliver, or delay in delivery, of Goods;
4.2.2 Any damage or loss due to unloading or packaging of Goods; and
4.2.3 Any damage to property caused upon entering premises to deliver the Goods.
4.3 Upon delivery or collection and prior to laying, installation or use of any Goods, the Customer will inspect the Goods as appropriate as to the type, quantity, quality, aesthetics, appearance, shade, colours, layout patterns, suitability of purpose and any other characteristic of the Goods and will inform Iznik Tiles and Ceramics accordingly.
4.4 If any Goods are damaged, wrongly supplied or not in accordance with the Contract, the Customer holds may request may return those Goods in accordance with clause 6.
4.5 The Customer will be deemed to have accepted delivery of the Goods in the following events:
4.5.1 Failure by the Customer to return Goods in accordance with clause 6; or
4.5.2 Laying, installation or use of the Goods in any way by the Customer.
4.6 The Customer will indemnify Iznik Tiles and Ceramics B.V. against any losses, costs or expenses incurred by Iznik Tiles and Ceramics B.V. due to any failure by the Customer to accept the Goods at the time of delivery or collection.
5. Characteristics of Goods
5.1 Due to the hand-made characteristics of the tiles and the element of art, the Customer acknowledges that Goods, which are tiles, supplied by Iznik Tiles and Ceramics B.V. may contain, display or be subject to any one or more of the following characteristics:
5.1.1 Crazing, spots, specks and blemishes;
5.1.2 Variations in colour, shade, size, pattern, veining, marking, texture, durability, density, size, weight, dimension, surface and finish, and may fade or change colour over time; and
5.1.3 Optical effects such as hazing or smudging at varying light sources and at differing angles.
5.2 The Customer acknowledges that Goods which contain, display or are subject to any one or more of the characteristics referred to in clause 5.1 are not defective or of unacceptable quality by reason of any of those characteristics.
5.3 In case of orders of additional tiles, Iznik Tiles and Ceramics B.V. will do its utmost to match the designs, shapes, colors and sizes of tiles with the tiles produced previously. However, the Company cannot guarantee to match designs, shapes, colors and sizes of individual tiles produced for a previous batch.
5.4 The Customer acknowledges that, for the correct wall and/or floor installation of tiles, the surface on which tiles will be applied is straight with a deviation that is not more than reasonable.
5.5 In case a wall or floor is not conducive to tiling due to a deviation with a percentage that is less than acceptable, the Client acknowledges this wall or floor has to be prepared. Any costs involved in preparing these walls or floors are on the account of the Customer.
6. Return of Goods
6.1 The Customer may reject and return Goods to Iznik Tiles and Ceramics B.V. provided that:
6.1.1 the Goods are damaged, wrongly supplied, defective or not in accordance with the Contract;
6.1.2 the Goods are returned within one month of the date of the invoice or account issued by Iznik Tiles and Ceramics B.V. to the Customer in respect of those Goods;
6.1.3 the Customer notifies within 15 working days of delivery, Iznik Tiles and Ceramics B.V. of the invoice or account number in respect of the Goods to be returned;
6.1.4 the Goods are returned in the original state or condition in which they were supplied, and remain in original boxes together with all packaging and instruction material; and
6.1.5 the Goods are in as new condition as is reasonably possible, and are newly produced or from current stock held in store by Iznik Tiles and Ceramics B.V. and, if applicable, matching current stock shade.
6.2 All Goods returned by the Customer are subject to assessment by Iznik Tiles and Ceramics B.V., and Iznik Tiles and Ceramics B.V. may, if permitted by the Dutch Consumer Law or any other law, refuse to accept the return of the Goods at its sole discretion.
6.3 Unless Iznik Tiles and Ceramics B.V. and the Customer otherwise agree in writing, the Customer will bear the costs of delivery when returning any Goods.
6.4 Subject to the Customer’s rights under the Dutch Consumer Law, the following Goods cannot be returned by the Customer to Iznik Tiles and Ceramics B.V. under any circumstances:
6.4.1 those that were specially made, sourced, ordered or purchased for the Customer;
6.4.2 those that were used, installed, laid, damaged or altered in any way by the Customer;
6.4.3 those that were sold to the Customer at wholesale or discounted prices, or as second grade or quality; or
6.4.4 those that are no longer in stock in store by Iznik Tiles and Ceramics B.V. or have been discontinued.
6.5 Goods returned in accordance with this clause will be subject to a restocking fee. The restocking fee will be 25% of the price (plus GST) agreed in the Contract for the relevant Goods.
7.1 The Customer will pay for the Goods in accordance with the offer/invoice issued by Iznik Tiles and Ceramics B.V. for delivery or collection of the Goods.
7.2 The Customer must pay for the Goods in cash, bank transfer or by any other method of payment specified by Iznik Tiles and Ceramics B.V..
7.3 Payment is only received by Iznik Tiles and Ceramics B.V. when it receives cash or when the proceeds of other methods of payment are credited and cleared to Iznik Tiles and Ceramics B.V.’s bank account.
7.4 The Customer may not assert or exercise any right of set-off against monies payable by it to Iznik Tiles and Ceramics B.V..
7.5 Iznik Tiles and Ceramics B.V. may charge interest on amounts which remain unpaid for more than 14 calendar days. The interest rate will be seven percentage points above the cash rate target announced by the Reserve Bank of The Netherlands from time to time. That interest will accrue and be recoverable from day to day.
8. Title and risk
8.1 The legal and equitable title to the Goods will only be transferred from Iznik Tiles and Ceramics B.V. to the Customer when the Customer has met and paid in full all that is owed to Iznik Tiles and Ceramics B.V. on any account whatsoever.
8.2 The Customer acknowledges that until the Customer has met and paid all that is owed to Iznik Tiles and Ceramics B.V. on any account whatsoever, the Customer holds the Goods as bailee for Iznik Tiles and Ceramics B.V. and that a fiduciary relationship exists between the Customer and Iznik Tiles and Ceramics B.V..
8.3 Risk in the Goods passes to the Customer upon delivery or handover (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.
9. Limitation of liability
9.1 If under the Dutch Consumer Law or any other law any terms which apply to the sale of Goods under the Contract cannot be legally excluded, restricted or modified then those terms apply only to the extent required by law.
9.2 All terms, which would otherwise be implied by law or otherwise, are excluded except as stated in these Terms.
9.3 To the extent permitted by law, Iznik Tiles and Ceramics B.V.’ liability for any breach of the terms of the Contract, and any condition or warranty implied by the provisions of the Dutch Consumer Law, is limited to and will be completely discharged by any one of the following as determined by Iznik Tiles and Ceramics B.V. in its absolute discretion:
9.3.1 the replacement of the Goods or the supply of equivalent Goods;
9.3.2 the repair of the Goods;
9.3.3 the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
9.3.4 the payment of the cost of having the Goods repaired.
9.4 Except as expressly provided in this clause and to the extent permitted by law, Iznik Tiles and Ceramics B.V. is not liable to the Customer (and any party claiming through the Customer) for:
9.4.1 Any claim made after laying, installation or use of the Goods;
9.4.2 any claim made with respect to or in connection with any of the matters referred to in clause 5;
9.4.3 Any claim made under, or in connection with any defects whatsoever in Goods for the loss or damage to person or property arising from or caused from such defects; and
9.4.4 Any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods where indirect, special or consequential loss or damage includes:
(a) any loss of income, profit or business; or
(b) any loss of goodwill or reputation.
The Customer will indemnify and keep indemnified and hold Iznik Tiles and Ceramics B.V. harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Iznik Tiles and Ceramics B.V., and from and against all actions, proceedings, claims or demands made against Iznik Tiles and Ceramics B.V., arising from one or more of the following:
10.1 The Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods; and
10.2 Any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods or the use of the Goods.
11.1 The Contract and these Terms are governed by the laws of the The Netherlands and the State or Territory in which Goods are supplied to the Customer and the parties submit to the jurisdiction of the courts of The Netherlands with any proceedings to be issued out of a court or tribunal of competent jurisdiction.
11.2 The rights and obligations of the parties will not merge on completion of any transaction under the Contract and these Terms or upon the execution of any other document in connection with the subject matter of the Contract and the Terms.
11.3 All rights under the Contract and these Terms are in addition to and do not abrogate, limit or reduce any other rights that Iznik Tiles and Ceramics B.V. may have.
11.4 Any provision of the Contract and these Terms that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from the Contract and these Terms but only to the extent necessary to avoid that effect. All other provisions of the Terms continue to be valid and enforceable.
11.5 Unless otherwise specified, time is of the essence in the Contract.
11.6 Iznik Tiles and Ceramics B.V. may vary the Terms with reasonable notice to the Customer.
11.7 A right or obligation under the Contract and these Terms cannot be waived except by a document executed by the party waiving that right or obligation and specifying the waiver.