TERMS & CONDITIONS for B2B Agreements with Stoov B.V.

 

1. Definitions

1.1. In these Terms and Conditions the following definitions shall have the following meanings:

Agreement: An agreement in which the Counterparty undertakes or has undertaken to purchase the Products from Stoov;

Counterparty:
1. any natural or legal person in the exercise of its profession or business with whom Stoov concludes an Agreement;
2. any natural or legal person in the exercise of its profession or business with whom Stoov communicates or communicated about an Agreement, including by requesting information, an offer or by making a proposal;

Products: All products and services offered by Stoov through its web shop and, B2B portal and any other third party; 

IP rights: All intellectual property rights. These include, inter alia, copyrights and neighbouring rights, portrait rights, database rights, trademark rights, rights to models whether registered or not, rights to inventions whether patented or not, trade name rights, rights to the use of a domain name;

Parties: Stoov and the Counterparty;

Terms and Conditions: these Terms and Conditions for purchase;

Stoov: Stoov B.V., having its registered office in Utrecht registered with the Dutch Chamber of Commerce under number 62149342, or an affiliate or group company of Stoov B.V. that declares these Terms and Conditions applicable.

2. Applicability

2.1.  These Terms and Conditions shall apply to all Agreements between Stoov and a Counterparty, including all negotiations which the Parties conduct prior to the conclusion of an agreement.

2.2.  Acceptance of a deviation of these Terms and Conditions detrimental to Stoov only applies to the transaction to which the deviation pertains.

2.3.  General terms and conditions of the Counterparty do not apply. To avoid misunderstanding, they also do not apply if they are referred to or printed on for example any Counterparty purchase order or other document issued in respect of a Stoov quotation, or otherwise issued in connection with (the conclusion of) an Agreement, unless and in as far as Stoov unambiguously and explicitly agrees to the applicability of such general terms and conditions or specific clauses contained therein in writing. To avoid misunderstanding: the mere signing or confirming such a purchase order or other document does not constitute such agreeing on the terms and conditions contained therein or referred to therein.

2.4. If an Agreement stipulates that the general terms and conditions of the Counterparty apply in addition to these Terms and Conditions, this shall mean that, if a subject is covered in these Terms and Conditions, only these Terms and Conditions shall apply.

 

3. Offers, orders and acceptance

3.1.  A request for a proposal (such as in the form of an offer) shall not be binding upon Stoov. The execution of an Agreement shall never result in the right to conclude a follow-up agreement.

3.2.  The Counterparty can place orders by telephone, e-mail or via the web shop. From Q1/2023 the Counterparty can place orders via the B2B portal. The Counterparty will receive a confirmation of the order.

3.3.  Stoov does not guarantee the continuous or other availability of the web shop and/or the B2B portal, accessible on Stoov’s website, through which the Counterparty is able to among others, place, cancel, alter and view orders.

3.4.  Stoov’s applicable price lists as published on its website and/or B2B portal or communicated in writing to the Counterparty and delivery schedules, shall apply to all offers and orders of the Products and all engagements between Stoov and the Counterparty pertaining thereto. Stoov may at any time change the prices and delivery schedules. Such changes do not change existing agreements unless they are concluded for a term, whether specified or unlimited, in which case such changes shall apply to the remainder of such term.

3.5.  The shipping costs are factored into the prices on the offer and the invoice, unless parties have agreed otherwise.

3.6.  Stoov shall at all times have the right, in its sole discretion, to unilaterally change the prices for the Products with immediate effect due to any modifications in the amount of taxes or levies, its purchase price, currency fluctuations, or any similar events, and also after acceptance of the order to which such change pertains to. If this results in an increase of the amount to be paid by the Counterparty of more than ten percent (10%), the Counterparty may cancel the order to which the change of the price pertains to in writing within five (5) business days after Stoov has informed the Counterparty of such change.

 

 

3.7.  Stoov shall only be bound to orders placed by the Counterparty after acceptance by Stoov by means of an order confirmation in writing. Such order confirmation may also be made in the form of an invoice.

 

To avoid misunderstandings: an (automatically generated) acknowledgement of receipt of the order does not constitute an order confirmation in writing by Stoov.

 

Notwithstanding the foregoing, in its order confirmation Stoov is entitled to deviate from the order placed by the Counterparty which will then be considered as the order placed, unless the Counterparty informs Stoov in writing within five (5) business days upon the date of the order confirmation that it does not accept such deviation.

3.8. The Counterparty may without charge alter orders placed until the earlier of Stoov’s acceptance of such order or ten (10) days upon receipt of the order by Stoov. After this term, alteration of an order will only be possible if Stoov explicitly grants the Counterparty permission for such alteration, to which permission Stoov may in its sole discretion set the condition that the Counterparty compensates any damage incurred by Stoov as a result of the alteration (including loss of profit and expenses incurred) or that Counterparty compensates fifty percent (50%) of the decrease of the total price payable by Counterparty pursuant to the alteration.

 

4. Remuneration and payment

4.1.  Unless specifically set out otherwise, prices are exclusive of VAT, withholding tax, customs charges and other charges imposed by the government and transport-, travel- and insurance costs.

4.2.  Stoov shall proceed to ship the Products within 14 days after full payment of the invoice relating to those Products unless otherwise agreed in writing.

4.3.  Unless explicitly agreed upon otherwise in writing, the Counterparty is not entitled to set off amounts that the Counterparty is due to Stoov against amounts due by Stoov to the Counterparty.

4.4.  Any objections to the invoiced amount will not suspend the payment obligation of the Counterparty.

4.5.  Remuneration will not be index-linked or otherwise adjusted.

4.6.  Stoov may obtain information – within statutory frameworks – about the Counterparty’s ability to fulfil its payment obligations, as well as about facts and factors that are important for the responsible conclusion of the Agreement. Following such enquiry, Stoov may, in its sole discretion decide to not engage (further) in the conclusion or execution of the Agreement or to request or apply specific additional terms.

4.7.  If the Counterparty is in default of any payment, in addition to the outstanding principal sum it will be due statutory interest increased with two percent (2%) and collection charges equal to thirty percent (30%) of the outstanding amount with a minimum of two hundred and fifty euros (EUR 250.-) or, at Stoov’s sole discretion, the amount of all of Stoov’s reasonable recovery costs. Stoov is allowed at any time to switch the recovery cost basis from a percentage to its full reasonable costs and vice versa.

 

5. Termination in Exceptional Circumstances

5.1. Without prejudice to its rights under the law, Stoov shall be entitled, without in any way being liable to pay compensation, to terminate an Agreement without notice, notice of default or judicial intervention if:
i)  the Counterparty is in default of their obligations, unless the default is insignificant;
ii)  a petition is filed for the bankruptcy of the Counterparty, or they are declared bankrupt;
iii)  the Counterparty applies for a suspension of payment, or such moratorium is granted to them;
iv)  the Counterparty can no longer dispose of their assets or loses the power to dispose of those assets to a significant extent, as a result of attachment or otherwise, and this situation persists for longer than two months after first arising;
v)  Stoov has justified reasons for doubting the Counterparty’s capacity to meet their obligations or to do so in a timely manner.

6. Specifications

6.1.  The Products to be purchased will meet the agreed specifications.

6.2.  Stoov shall always be entitled to, within reasonable limits, make adjustments to the design, fabrics or other elements of the Products at any time and without prior notice to the Counterparty.

7. Information

7.1. Stoov will provide the Counterparty with information which it reasonably believes to be adequate for the performance of the Agreement. The responsibility for the completeness of the information rests with the Counterparty who, based on their expertise, is deemed to know what information they require. Stoov shall only be liable if, despite a request by the Counterparty, it nonetheless supplies incomplete or inaccurate information.

8. Shipping and Returns

8.1.  The risk of loss, damage, delay or depreciation of the Products shall transfer to the Counterparty upon the moment Stoov makes said Products available to the Counterparty, its agent or the transport carrier, at the premises where Stoov has the Products located. Notwithstanding the aforesaid, if and when Stoov arranges for transport, Stoov shall take out, for the account of the Counterparty, customary insurance for all risks involved in delivering the Products to the delivery location specified by the Counterparty. Risks exceeding the amount actually paid out under such insurance (if any) will be borne by the Counterparty.

8.2.  The Products will be shipped within 14 (fourteen) days after receipt of payment of the invoice.

8.3.  Delivery periods indicated by Stoov are provided on a reasonable commercial efforts basis.

8.4. The Counterparty may only return Products if explicitly permitted in writing by Stoov. Stoov’s permission to return the Products does not imply any acceptance of any claim of the Counterparty including but not limited to a right to warranty.

 

9. Warranty

9.1.  The Counterparty shall, promptly following receipt of the Products, examine such Products and establish whether they have any defects and if the delivery is complete. To be valid, any claim in respect to defective Products or a short-shipment of Products (other than with respect to defects which are not identifiable by a basic examination of such Product) must be made in writing by the Counterparty to Stoov on the next business day upon receipt thereof (the “Investigation Period”), and such defect or short-shipment may not have been caused while the Products were in transport to the Counterparty or while in storage by or on behalf of the Counterparty.

9.2.  If by the end of the Investigation Period the Counterparty has not notified Stoov in writing that it has rejected any Products as defective or that a delivery is incomplete, the Counterparty shall be deemed to have accepted the (delivery of the) Products.

9.3.  Any claim pertaining to the Product(s) defects which are not identifiable by a basic examination and are caused by a defect in the materials used therefore or a manufacturing fault, shall only be valid, taking into account the other provisions of this clause, if the Counterparty has proven the defect within three (3) months upon the delivery of such Product(s) by Stoov. The faulty Product(s) will then have to be sent to Stoov. If the cause of the defect lies with Stoov, it will pay the shipping costs of the defective Product(s). When the cause of the defect lies with the Counterparty, the latter will pay the shipping costs of the defective Product(s).

9.4.  After receiving the defective Product(s), Stoov will investigate the cause of the defect(s). If Stoov, in its sole discretion and after its own examination of the Product(s), shall be of the opinion that any of the Products have been defective at the time of delivery to the Counterparty or, in case, in deviation of clause 8.1, Stoov has presumed responsibility for delivery, Stoov will credit the original price of such Product(s) received by the Counterparty or, at Stoov’s sole discretion, replace the defective Product(s). This crediting of the original price or replacement of Product(s) shall constitute the sole and exclusive liability of Stoov and remedy for the Counterparty in respect to defective Products or Products not delivered.

9.5.  Without limiting the foregoing, a Product will not be considered to be defective if the defect is the result of outside influences, natural wear and tear, improper use or other influences beyond Stoov’s control.

9.6.  The Counterparty shall provide maintenance service on Products sold, using qualified personnel and subject to service policies satisfactory to Stoov.

10. Retention of Title

10.1.  All Products delivered remain property of Stoov until the Counterparty has paid in full all of the Counterparty’s obligations relating to the order.

10.2.  If the Counterparty has not timely paid Stoov all amounts due and payable or if Stoov reasonably believes that the Counterparty will not do so and Stoov has already shipped the Products, Stoov shall be entitled to i) demand that the Counterparty at its own risk and expense immediately delivers the Products back to Stoov and to ii) enter the premises of the Counterparty or any such location where the Counterparty holds the Products at all times in order to assert its ownership rights and to retrieve the Products, at the expense of the Counterparty. Stoov hereby claims all costs incurred by it in this context, including extrajudicial collection costs.

10.3.  On Products still owned by Stoov, the Counterparty shall not create a right of pledge or establish other rights thereto.

10.4.  The Counterparty shall at all times allow Stoov access to the Counterparty's premises to verify that Counterparty complies with the aforementioned obligations.

10.5.  Upon delivery, the Counterparty shall have and keep the Products insured with a reputable insurance company with Stoov as the beneficiary until the moment of full payment of all the amounts due to Stoov.

11. Marketing and Promotion

11.1. Counterparty is not permitted to publish advertisements of the Products and or use the Stoov trademark or logo in (marketing) communications.

 

12. Use of Names, Trademarks and Logos and Intellectual Property Rights

12.1.  For the purpose of matching the Products to the style of the Counterparty’s business, the Counterparty is entitled, in consultation and with the final definitive written approval of Stoov, to customize the appearance of the Products only by printing or embroidering its logo on the Products. Any other modifications are not permitted.

12.2.  The Counterparty shall only use Stoov’s names, trademarks and logos in consultation with Stoov.

12.3.  Stoov’s logo, as applied to the Product(s) upon delivery, will remain visible and unaltered at all times.

12.4.  Without the express prior written approval of Stoov, the Counterparty shall not register or allow others than Stoov to register any rights related to the Products or Stoov names, trademarks and logos including intellectual property rights, trademark rights or domain name rights or any other similar right.

 

13. Confidentiality

13.1.  For the purpose hereof, “Confidential Information” shall be deemed to be, without limitation, matters of a clearly confidential nature and/or specified as confidential by Stoov, information related to the business, clients or suppliers of Stoov, Stoov’s trade secrets, know-how of the business of Stoov or transactions with Stoov incidental thereto, and all information of which the confidentiality is or should reasonably be knowable.

13.2.  All Confidential Information provided by Stoov to the Counterparty or otherwise obtained by the Counterparty will be treated as confidential by the Counterparty, its representatives, employees, subcontractors and/or agents and shall strictly be used for the exercise of the rights expressly granted herein.

13.3.  If the Counterparty violates any of the confidentiality obligations set out in this clause, it shall pay Stoov an immediately payable fine of fifty thousand euros (EUR 50,000.-) per violation and subsequently five thousand euros (EUR 5,000.-) for every day the violation continues, notwithstanding Stoov’s right to additionally claim compensation of its full damages suffered and Stoov’s entitlement to claim the Counterparty’s performance of the Counterparty’s obligations hereunder. The Counterparty shall, inter alia, be held accountable for actions and omissions by their employees (including temporary staff and staff seconded to Stoov), other employees and contractors (including accountants, lawyers and other advisors).

13.4.  The Counterparty shall procure that its representatives, employees, sub-contractors and/or agents to whom Confidential Information is disclosed shall be bound by the terms set out in the second subclause. The Counterparty shall be responsible for any act or omission that would constitute a breach or violation of the terms set out in the second subclause by the Counterparty or the Counterparty’s representatives, employees, subcontractors and/or agents, which shall include taking all reasonable measures, at its own expense (including, but not limited to, court proceedings), to restrain such persons from prohibited or unauthorized disclosure or use of Confidential Information. The Counterparty agrees to notify Stoov without undue delay in writing of any misappropriation or misuse of Confidential Information of which it becomes aware by any of such persons. The Counterparty agrees that the acts and omissions of its representatives, employees, subcontractors and/or agents in connection with the Confidential Information will be treated as acts and omissions of the Counterparty.

14. Force Majeure

14.1. No failure or omission by Stoov in the performance of any obligation vis-à-vis the Counterparty shall be deemed a breach of the Agreement with the Counterparty or create any liability if the same arises on account of force majeure, which term shall include any event external, extraordinary and unforeseeable events beyond the control of Stoov such as but not limited to acts of God, strikes, riots, war, terrorism, civil disturbances, pandemics, covid-19 measures, invasions, fire, explosions, earthquakes, floods, plagues, and other natural disasters, acts or omissions of government agencies or instrumentalities, transportation embargoes, the non-performance of Stoov’s suppliers - insofar as the limitation of liability pursuant thereto is not expressly excluded herein - and other contingencies beyond the control of Stoov which can be qualified as force majeure.

14.2.  Stoov shall promptly notify the Counterparty of such a situation and its probable duration. Furthermore, Stoov will use reasonable efforts to eliminate, cure and overcome any of such causes and resume performance of its obligations as soon as possible.

14.3.  In the event the force majeure period lasts longer than two months, both Stoov and the Counterparty are entitled to dissolve (“ontbinden”) the (part of the) Agreement affected by the event of force majeure, without being required to compensate the loss incurred by the other party.

14.4.  If Stoov has already partly fulfilled its obligations under the Agreement affected by the event of force majeure, or if it can partly fulfill these at the time of the occurrence of the event of force majeure and the already performed or to be performed part can be independently valued, Stoov is entitled to invoice the already performed or to be performed part separately.

15. Limitation of liability and indemnities

15.1.  Except as expressly provided herein, there are no representations or warranties, express or implied, relating to the Products, including, without limitation, any implied warranty of merchantability or fitness for any particular purpose.

15.2.  If Stoov notifies the Counterparty that any of the Products needs to be recalled or otherwise withdrawn from the market, the Counterparty shall immediately do so. If the Counterparty refuses or otherwise fails to do so timely, the Counterparty will indemnify Stoov, its affiliates, and their respective officers, directors, employees, agents and shareholders, from and against any and all liability, loss, damages or costs, including legal costs, incurred or suffered as a result of any such failure or refusal.

15.3.  The Counterparty hereby agrees to defend, indemnify and hold harmless Stoov against all claims, whether alleged or not, from third parties which suffer damages or claim to do so, in relation to the execution of an agreement with Stoov.

15.4.  If Stoov receives a claim as described in clause 15.3 from a third party, the Counterparty is obliged to immediately, both extra-judicially and judicially, assist Stoov and do everything that may be expected of the Counterparty in that event. If the Counterparty does not take adequate measures, Stoov is entitled to, without further notice, take such adequate measures itself. All damages and costs (including any legal costs) incurred or suffered by Stoov or a third party in connection with a third party claim will be fully at the expense and risk of the Counterparty, without prejudice to the limited liability of Stoov as detailed in clause 15.6 and 15.7.

15.5.  The Counterparty shall assume full responsibility for and shall defend, indemnify and hold Stoov harmless from any damage, claim, liability, loss or expense (including any legal costs) which Stoov may suffer or incur by reason of the Counterparty’s packaging, stocking, warehousing, storage, use, and/or sale of the Products.

15.6.  Without prejudice to clause 15.1, Stoov shall in no event be liable vis-à-vis the Counterparty for any direct or consequential damages, losses, costs or claims. Such damages, losses, costs and claims, include, but are not to be limited to, damage incurred by the Counterparty due to an interruption of its business, loss of profits, loss of savings, loss of goodwill, loss resulting from claims from its clients, mutilation, destruction or loss of information for whatever reason, damage resulting from a situation of force majeure, the improper performance of obligations by Stoov’s suppliers, the conduct of the Counterparty, persons acting for or on behalf of Stoov or persons designated by the Counterparty or for whom the Counterparty is responsible, and damage resulting from acts or omissions of third parties engaged by Stoov (excluding Stoov’s employees). If any damage or loss is insured by Stoov, the liability of Stoov shall be limited by the amount actually paid out under such insurance policy.

15.7.  If and insofar as the aforementioned limitation of liability is null or annullable, Stoov’s liability shall be limited to the direct damage incurred by the Counterparty up to the amount received and retained by Stoov from the Counterparty less out-of-pocket costs incurred by Stoov in respect of the order.

15.8.  Without prejudice to clause 6:89 of the Dutch Civil Code, any liability of Stoov terminates within twelve months after the occurrence of the injurious act or omission.

16. Miscellaneous

16.1.  The Counterparty shall not be entitled to assign its respective rights or obligations under its agreement with Stoov without the prior written consent of Stoov.

16.2.  If at any time any term or provision herein shall be held to be illegal, invalid or unenforceable, in whole or in part, under any rule of law or enactment, such term or provision or part shall to that extent be deemed not to form part of these terms and conditions, but the enforceability of the remainder of these terms and conditions shall not be affected. The Parties shall then negotiate the amendment of any such illegal, invalid or unenforceable term or provision in such manner that it becomes legal, valid and enforceable without affecting the original intent or the economic purpose and effect of such term or provision.

16.3.  For the purpose of these terms and conditions, “in writing” includes per email.

16.4.  The resale of the Products by the Counterparty in a professional manner is not permitted.

16.5.  The (digital) administration and the (digital) data in Stoov’s system or the systems which are used on behalf of Stoov (such as logfiles), will provide full evidence on any and all of Stoov’s statements unless the Counterparty provides overriding evidence on the contrary.

16.6.  Stoov is entitled to amend these Terms and Conditions. The amended provisions shall be applicable to the Agreement, unless the Counterparty makes an objection against the amended provisions within four weeks after receiving the notice of the amendment of the Terms and Conditions. If the Counterparty makes an objection against the amended provision within the above mentioned period and the amendments result in a material worse position of the Counterparty, the Counterparty shall be entitled to terminate the Agreement without an obligation to pay compensation, if:

• i) it notifies Stoov in writing that it wants to terminate the contract due to the amended provisions; and
• ii) Stoov does not notify the Counterparty within four weeks after receiving that notice, that Stoov is willing to continue the Agreement under the former conditions.

17. Applicable Law and Competent Court

17.1. These Terms and Conditions and any agreements and obligations arising therefrom shall be governed by and construed in accordance with the laws of The Netherlands. The Parties agree to submit all disputes arising under these terms and conditions and any agreements and obligations arising therefrom to the jurisdiction of the courts of Amsterdam without prejudice to Stoov’s right to bring any legal action or proceedings with respect to these terms and conditions against the Counterparty in any other competent venue as Stoov may elect where the Counterparty is located or has assets, and have local laws applicable.