Terms of service
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- Article 1: Applicability, Definitions
These General Terms and Conditions apply to every offer and every purchase and sales agreement of giolli under the name Marmorino, established in the Netherlands, hereinafter referred to as the "User. "The buyer will hereinafter be referred to as "the other party. "Various provisions in these General Terms and Conditions apply to a natural person acting outside their business or professional activity. In these provisions, the other party will be referred to as "the consumer."
"Offer" means: any offer from the user, whether or not in the form of a written quotation. "Written" means: by letter, email, fax, or any other form of communication that can be considered equivalent in view of the state of the art and prevailing social views.
The possible inapplicability of (part of) a provision of these General Terms and Conditions does not affect the applicability of the remaining provisions.
In the event of a discrepancy or contradiction between these General Terms and Conditions and a translation thereof, the Dutch text shall prevail.
These General Terms and Conditions also apply to repeat or partial orders resulting from the agreement.
- Article 2: Offer, Prices Unless a validity period is stated in/with an offer, it is a non-binding offer. The user can revoke this offer no later than 2 business days after receipt of acceptance.
The prices stated in an offer or price list exclude VAT and any costs, such as transport costs, shipping costs, administration costs, handling costs, and invoices from third parties.
A composite offer does not obligate the user to deliver part of the offered goods for a corresponding portion of the price.
If the offer is based on information provided by the other party and this information proves to be incorrect/incomplete or subsequently changes, the user may adjust the stated prices and/or delivery times.
The offer and prices do not automatically apply to repeat orders.
Samples, models, specifications of colors, dimensions, weights, and other descriptions shown and/or provided in brochures, promotional materials, and/or on the user's website are as accurate as possible but are for guidance only. The other party cannot derive any rights from this.
The samples and models provided remain the property of the user and will be returned to the user at the first request of the other party and at the expense of the other party.
If, between the conclusion of the agreement and its execution, circumstances arise for the user that increase the (cost) prices as a result of changes in legislation and regulations, government measures, currency fluctuations or changes in the prices of the necessary materials or raw materials, the user may increase the prices accordingly and charge these to the other party.
In the event of price increases within 3 months after the conclusion of the agreement, the consumer can terminate the agreement by means of a written statement. Unless the consumer informs the user within 14 days after notification of the price change that he wishes to exercise his right of withdrawal, the user may assume that the consumer has agreed to this change.
- Article 3: Conclusion of agreements
The agreement is concluded after the other party has accepted the user's offer, even if this acceptance deviates from this offer on minor points. However, if this acceptance deviates on essential points, the agreement is only concluded after the user has agreed to these deviations in writing.
The user is only bound by:
an order without prior offer;
verbal agreements;
additions to or changes to the general terms and conditions or agreement;
after written confirmation thereof to the other party or as soon as the user – without objection from the other party – has started executing the order or agreements.
- Article 4: Involvement of third parties
If the user deems this necessary, he can have certain deliveries made by third parties.
- Article 5: Obligations of the Other Party
The other party shall ensure that all data required for the performance of the agreement is provided in a timely manner and in the manner desired by the user, and that this data is correct and complete.
Items supplied by the user may only be resold by the other party in the original packaging from the user or its supplier. The other party may not make any changes to the original packaging and must prevent damage.
If the other party fails to comply with the aforementioned obligations (in a timely manner), the user may suspend the performance of the agreement until the other party has fulfilled its obligations. The costs and other consequences arising from this are at the expense and risk of the other party.
If the other party fails to comply with its obligations and the user does not demand immediate compliance, this does not affect the user's right to demand compliance at a later date.
- Article 6: Delivery, Delivery Times
An Agreed Term Agreed terms are never final deadlines. If the user fails to
comply with its obligations (in a timely manner), the other party must give the user written notice of default and grant it a reasonable period of time to comply.
The delivery period commences when the user has received all information necessary for delivery and any agreed (advance) payment from the other party. If this causes a delay, the term will be extended proportionally.
The user may deliver in parts and invoice each partial delivery separately.
The risk for the goods to be delivered passes to the other party when they leave the user's premises, warehouse, or shop, or when the user has informed the other party that the goods are ready for collection.
Shipping or transport of the goods takes place at the expense and risk of the other party and in a manner determined by the user. The user is not liable for damage of any nature related to shipping or transport.
Unless the parties agree otherwise, a term of up to 30 days after the conclusion of the agreement applies to delivery to the consumer. The risk passes to the consumer when the goods are physically available to them/a third party designated by them (other than the carrier). If the consumer designates the carrier themselves (other than a carrier proposed by the user), the risk passes to them upon receipt of the goods by this carrier. Shipping or transportation is the responsibility of the consumer.
If, due to a cause within the counterparty’s sphere of risk, it proves impossible to deliver the ordered goods (in the agreed manner) to the counterparty or if they are not collected, the user may store the goods at the expense and risk of the other party. The counterparty will then enable the user to deliver or collect the goods within a reasonable period set by the user.
If the counterparty fails to meet its purchase obligation after the aforementioned reasonable period, it will immediately be in default. The user may then terminate the agreement in whole or in part with immediate effect by means of a written statement and sell the goods to third parties, without being obliged to pay compensation for damages, costs and interest. This does not affect the counterparty’s obligation to compensate the user for any (storage) costs, damages and loss of profits and/or the user’s right to subsequently demand performance.
- Article 7: Packaging
Packaging intended for multiple use remains the property of the user and may not be used by the counterparty for purposes other than those for which it is intended.
The user determines whether the other party must return the packaging or collect it themselves, and at whose expense this will be done.
The user may charge the other party a deposit for this packaging. If the other party returns the packaging carriage paid within the agreed period, the user will take it back. The deposit will then be refunded to the other party or offset against the deposit for the packaging of a subsequent delivery. The user may deduct a 10% handling fee from the amount to be refunded or offset.
If the packaging is damaged, incomplete, or destroyed, the other party is liable for this damage, and their right to a refund of the deposit expires. If this damage exceeds the deposit charged, the user is not required to take back the packaging. They may then charge the other party for it at cost price, minus the deposit paid by the other party.
The user may leave packaging intended for single use with the other party. Any costs for removal will then be borne by the counterparty.
- Article 8: Complaints and Returns
The counterparty will inspect the delivered goods immediately upon receipt and report any visible defects, damage and/or deviations in quantities on the consignment note or accompanying note or, if not, report them to the user in writing within 2 business days. If such complaints are not reported in time, the goods are deemed to have been received in good condition and to comply with the agreement.
The other party must report other complaints to the user in writing immediately upon discovery, but no later than within the agreed warranty period. All consequences of failure to report immediately are at the other party's risk. If no warranty period has been agreed upon, a period of one year after delivery applies.
Failure to submit a timely complaint will result in no claim under an agreed warranty.
If ordered items can only be delivered in (wholesale) packaging in the user's stock or in minimum quantities or quantities, the items may exhibit minor deviations – accepted in the industry – with respect to specified weights, quantities, colors, and sizes. These deviations do not constitute a shortcoming on the part of the user, and the warranty cannot be invoked.
Complaints do not suspend the other party's payment obligation.
The previous paragraph does not apply to consumers.
The other party shall enable the user to investigate the complaint and shall provide all relevant information. If return shipment is necessary for the investigation, this shall be at
the other party's expense, unless the complaint subsequently proves to be justified. The transport risk always lies with the other party.
Returns will be made in a manner determined by the user and in the original packaging.
Complaints are not possible regarding:
imperfections in or properties of items made from natural materials, if these imperfections or properties are inherent to the nature of the materials;
discoloration and minor color deviations;
goods that have changed in nature and/or composition or have been fully or partially processed or altered after receipt by the other party.
- Article 9: Warranties
The user will perform the agreed deliveries properly and in accordance with the standards applicable in its industry, but never provides a warranty that goes beyond what is expressly agreed.
During the warranty period, the user guarantees the customary quality and soundness of the delivered items.
If the manufacturer or supplier has issued a warranty for the items delivered by the user, that warranty applies equally between the parties. The user will inform the other party of this.
If the purpose for which the other party intends to process, handle, or use the goods deviates from the customary purpose, the user only guarantees that the goods are suitable for this purpose if it has confirmed this to the other party in writing.
The warranty cannot be invoked until the other party has paid the agreed price for the goods.
The previous paragraph does not apply to consumers.
In the event of a justified warranty claim, the user will – at their discretion – ensure free repair or replacement of the goods, or a refund or discount on the agreed price. If there is additional damage, the provisions of the liability article apply.
The consumer may always opt for free repair or replacement of the goods, unless this cannot reasonably be expected of the user. In the latter case, the consumer can terminate the agreement by means of a written statement or demand a discount on the agreed price.
- Article 10: Liability:
The user accepts no liability whatsoever beyond the guarantees expressly agreed upon or provided by the user.
The user is solely liable for direct damage. Any liability for consequential damage, such as business interruption, loss of profit and/or losses incurred, damage due to delays and/or bodily injury or damage, is expressly excluded.
The other party will take all necessary measures to prevent or limit the damage.
If the user is liable, the liability for damages is always limited to the amount paid by their insurer in the relevant case. If the insurer does not make a payment or the damage is not covered by an insurance policy taken out by the user, the obligation to pay damages is limited to a maximum of the invoice amount for the delivered goods.
The other party must contact the user for this no later than 6 months after they became aware or could have become aware of the damage suffered.
Notwithstanding the previous paragraph, a period of 1 year applies to the consumer.
The user is not liable – and the other party cannot invoke the applicable warranty – if the damage is caused by:
improper use, use contrary to the purpose of the delivered goods or use contrary to the instructions, advice, user manuals, leaflets, etc. provided by or on behalf of the user
; improper storage or maintenance of the goods; errors or omissions in the information provided to the user by or on behalf of the other party; directions or instructions from/on behalf of the other party; or as a result of a choice by the other party that deviates from what the user advised and/or is customary.
or because the other party or third parties on his behalf have carried out (repair) work or work on the delivered goods, without the express prior consent of the user.
In the cases mentioned in the previous paragraph, the other party is fully liable for any resulting damage and indemnifies the user against any third-party claims.
The limitations of liability included in this article do not apply if the damage is due to intent and/or deliberate recklessness of the user or the management staff at board level, or if mandatory statutory provisions oppose this. Only in these cases does the user indemnify the other party against any third-party claims.
- Article 11: Payment
The user may always request a (partial) advance payment or other security for payment. The requested advance payment for consumers amounts to a maximum of 50% of the agreed price.
Payment must be made within 30 days of the invoice date, unless the parties have agreed to a different payment term in writing. The accuracy of an invoice is established if no objection is lodged within this payment term.
If an invoice remains unpaid in full after the expiry of the term mentioned in the previous paragraph, or if direct debit has not been possible, the other party is liable to the user for default.
to transfer the User's rights to the other party, or to suspend the fulfillment of its obligations towards the other party for a reasonable period, without being liable for any damages.
Force majeure on the part of the User is understood to mean: a non-attributable shortcoming of the User, of third parties or suppliers engaged by the User, or other compelling reasons on the User's part.
The following circumstances shall in any case constitute force majeure for the User: war, riot, mobilization, domestic and foreign unrest, government measures, strikes within the User's organization or the threat thereof, etc. circumstances, disruption of the conditions attached to entering into the agreement. agreement, existing exchange rates, business disruptions due to fire, burglary, sabotage, power outages, internet or telephone connections, natural phenomena, (natural) disasters, etc., as well as transport difficulties and delivery problems caused by weather conditions, roadblocks, accidents, import and export restrictions, etc.
If the force majeure situation occurs at a time when the agreement has already been partially performed, the other party is obliged to fulfill its obligations towards the user up to that point.
- Article 12: Retention of Title
All goods delivered/to be delivered under the agreement remain the property of the user until the other party has fulfilled all its payment obligations.
These payment obligations consist of payment of the purchase price of the goods, plus claims for work performed related to the delivery and claims due to an attributable shortcoming of the other party, such as claims for payment of damages, extrajudicial collection costs, interest, and any fines.
In the case of delivery of identical, non-individualizable goods, the batch belonging to the oldest invoices is always deemed to have been sold first. The retention of title therefore always applies to all delivered goods that are still in the other party's inventory, store, and/or contents at the time the retention of title is invoked.
The other party may resell the goods in the course of its normal business operations, provided that it has also agreed on a retention of title for these goods with its buyers.
As long as the goods are subject to retention of title, the other party may not pledge them in any way or transfer them to a financier.
The other party will immediately notify the user in writing if third parties claim ownership or other rights to the goods.
As long as the other party has possession of the goods, they will carefully store them as identifiable property of the user.
The counterparty shall ensure that the business or contents insurance is such that the goods delivered under retention of title are always insured. Upon first request, the user shall grant the user access to the insurance policy and the associated premium payment receipts.
If the counterparty acts in violation of this article or the user invokes the retention of title, the user and its employees may enter the counterparty's premises and repossess the goods. This does not affect the user's right to compensation for damages, lost profits and interest, and the right to terminate the agreement without further notice of default by means of a written statement.
- Article 13: Bankruptcy, inability to make decisions, etc.
The user may terminate the agreement without further notice of default by means of a written statement to the counterparty when the counterparty:
is declared bankrupt or files for bankruptcy;
applies for (provisional) suspension of payments;
is affected by an enforceable title;
is placed under guardianship or administration;
otherwise loses the power of disposition or legal authority over (parts of) its assets.
The other party shall always inform the trustee or administrator of the (contents of the) agreement and these general terms and conditions.
- Article 14: Force Majeure
In the event of force majeure affecting the other party or user, the latter may terminate the agreement by means of a written statement.
- Article 15: Cancellation, suspension
If the other party wishes to terminate the agreement before or during its performance, the user may claim compensation from the other party for all costs and damages incurred as a result of the termination, including lost profits. At the user's discretion and depending on the deliveries already made, this compensation amounts to 20 to 100% of the agreed price.
The other party indemnifies the user against third-party claims arising from the cancellation.
The user may offset the damages owed against all amounts paid by the other party and any counterclaims from the other party.
If the delivery(s) are suspended at the request of the other party, compensation for all deliveries made is immediately due and payable, and the user may invoice these to the other party. This also applies to costs already incurred or costs resulting from the suspension.
Costs incurred by the user as a result of resuming the delivery(s) are borne by the other party. If performance of the agreement cannot be resumed after the suspension, the user may terminate the agreement by means of a written statement to the other party.
- Article 16: Applicable law, competent court.
The agreement concluded between the parties is exclusively governed by Dutch law.
The applicability of the Vienna Sales Convention (CISG) is expressly excluded.
Any disputes will be submitted to the competent court in the user's place of business, but the user always reserves the right to submit the dispute to the competent court in the other party's place of business.
Regardless of the user's choice, the consumer always retains the right to submit the dispute to the legally competent court. The consumer must notify the user of this choice within one month of receipt of the formal notice.
If the other party is established outside the Netherlands, the user may choose to submit the dispute to the competent court in the country or state where the other party is established.
Interest of 2% per month, to be calculated cumulatively on the principal amount. Parts of a month are counted as a full month.
In the above-mentioned situation, a late payment interest of 6% per year applies to the consumer, unless the statutory interest is higher. In that case, the statutory interest applies.
If payment has still not been made after a reminder, the user may also charge the other party extrajudicial collection costs amounting to 15% of the invoice amount with a minimum of €40.00.
In the aforementioned reminder, the user gives the consumer a term of at least 15 days to pay. If payment is still not made, the extrajudicial collection costs for the consumer amount to:
15% of the principal amount on the first €2,500 of the claim (with a minimum of €40.00);
10% of the principal amount on the next €2,500 of the claim;
5% of the principal amount on the next €5,000 of the claim;
1% of the principal amount on the subsequent €190,000 of the claim;
0.5% on the excess of the principal amount.
All this with an absolute maximum of € 6,775.
To calculate the extrajudicial collection costs, the user may, after one year, increase the principal amount of the claim by the default interest accrued in that year.
In the absence of full payment, the user may terminate the agreement without further notice of default by means of a written statement or suspend its obligations under the agreement until payment has been made or adequate security has been provided. The user also has the aforementioned right of suspension if it has valid reasons to doubt the creditworthiness of the other party/consumer, even before the other party/consumer is in default of payment.
The user will first deduct received payments from all interest and costs due and then from the oldest outstanding invoices, unless it is stated in writing that the payment relates to a later invoice.
The other party may not offset the user's claims against any counterclaims it may have against the user. This also applies if the other party requests (provisional) suspension of payments or is declared bankrupt.
The previous paragraph does not apply to consumers.