Sales Terms & Conditions
ARTICLE 1. Definitions
In these General Terms & Conditions of Sale (hereinafter referred to as ‘’GTCS’’) the following terms are understood to mean:
- MAD Design Europe: the private limited company MAD Design Europe S.à.r.l, domiciled in 11/13 Boulevard de la Foire, L-1528 Luxembourg (hereinafter referred to as: ‘MAD EU’);
- Principal: every natural or legal person, by order of whom MAD EU delivers products and/or services, or with whom MAD EU enters into an agreement or with whom MAD EU is negotiating or in discussion about entering into an agreement;
- Offer: the written offer of MAD EU to deliver at a certain price a particular quantity of goods or to provide a previously well-defined service;
- Order: the assignment to deliver, or as the case may be the acceptance of the offer of MAD EU by the Principal. The order leads to the agreement, provided this has been entered into by a person of MAD EU, who is authorized to do so;
- Products: all goods, including documentation, drawings, models, sketches, samples, printer’s proofs and all (other) results of the service rendered by MAD EU, which are the object of an agreement;
- Services: all activities, in whatever form and under whatever name (purchase, assignment, contracting of work, etc.), which MAD EU carries out for, or on behalf of the Principal;
- Agreement: any agreement which is drawn up between MAD EU and Principal, any alteration in, or addition to that, as well as all (legal) acts for the preparation and execution of that agreement;
- Delivery: the placing of goods in the Principal’s possession, respectively power;
- Parties: MAD EU and the Principal;
- In Writing: electronic data traffic and/or messaging per fax and/or messaging by mail or delivery otherwise of written documents.
ARTICLE 2. Applicability
- 1. In case of a conflict, the specially made agreements prevail over these GTCS.
- 2. Deviation from these GTCS can only be agreed upon in writing.
- 3. These GTCS apply to all enquiries, offers and agreements regarding the delivery of goods by MAD EU to the Principal. General conditions – under any name – of Principal, do not apply. These are explicitly rejected.
ARTICLE 3. Offer, Confirmation or Agreement
- These terms and conditions of commercial sale of MAD EU (GTCS) apply to and form an integral part of all quotations and offers made by MAD EU, all acceptances, acknowledgements and confirmations by MAD EU of any orders by Principal and any agreements (“Agreement(s)”) regarding the sale by MAD EU and purchase by Principal of goods and services (“Products”), unless and to the extent MAD EU explicitly agrees otherwise in writing.
- Any terms and conditions set forth on any document or documents issued by Principal either before or after issuance of any document by MAD EU setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by MAD EU, and any such terms shall be wholly inapplicable to any sale made by MAD EU to Principal and shall not be binding in any way on MAD EU.
- MAD EU’s offers are open for acceptance within the period stated by MAD EU in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by MAD EU at any time prior to the receipt by MAD EU of Principal’s acceptance thereof.
ARTICLE 4. Price and price review
- 1. Unless otherwise agreed in writing, the prices given by MAD EU are based on delivery Ex Works, warehouse or other storage depot, excluding sales tax, import duties or other taxes, levies or obligations and excluding the costs of loading and unloading and insurance.
- 2. The agreed prices and rates are in Euros unless agreed otherwise in writing.
- 3. A quotation submitted by MAD EU does not bind it and only applies as an invitation for placing an Order by Principal.
- 4. MAD EU has the right at all times to determine that certain articles will only be delivered in certain minimum quantities.
- 5. Every change in the factors which influences the price of MAD EU, including purchase prices, rates of exchange, import and export duties and other levies due to import and export, insurance rates, freight rates and other levies or taxes, MAD EU may pass on to Principal. Only if this happens within three months after acceptance of the Order by MAD EU and provided that Principal is entitled to an appeal to grounds for annulment. Principal is authorized to annul the Agreement.
- 6. Principal indemnifies MAD EU for all costs and damage which for MAD EU might result from the fact:
- (a) that Principal is not properly registered for sales tax or a comparable tax in a relevant EC member state; and/or
- (b) that Principal provides incorrect or untimely data to MAD EU and/or the authorities in the area of sales tax or a comparable tax in a relevant EC member state.
ARTICLE 5. Delivery time
- 1. The given delivery times will never be considered deadlines, unless explicitly has been agreed otherwise. Therefore, in case a delivery is not in time, MAD EU must be declared in default in writing.
- 2. Principal makes sure that from it’s side there are no obstacles for realizing certain agreed terms, including delivery and acceptance times.
- 3. When exceeding any term, Principal is not entitled to any compensation (for damage) concerning the matter. In that case, Principal is neither entitled to annulment or cancellation of the Agreement, unless exceeding the term is such that one cannot reasonably expect Principal maintaining (the concerning part of) the Agreement. Then, Principal is authorized, after proof of default containing a reasonable further period of fulfillment, to annul or cancel the Agreement by registered mail. However, only to the extent that it is strictly necessary.
- 4. The delivery time commences at the last of the following points in time:
- (a) the day of the establishment of the agreement.
- (b) the day of reception by MAD EU of the documents, data, permits and such, necessary for carrying out the agreement.
- (c) the day of reception by MAD EU of that which, according to the agreement, has to be paid in advance by Principal.
ARTICLE 6. Delivery
- 1. For the interpretation of delivery conditions the ‘’Incoterms’’ apply, edition 2010, or the most recent version, published by the International Chamber of Commerce (ICC).
- 2. MAD EU reserves the right to deliver and to invoice maximum 10% more or less than the agreed quantity in case of products, specially made for the benefit of Principal, or as the case may be, specially composed products.
- 3. Shipping goods in parts by MAD EU is permitted after proper consultation beforehand, whereby every shipment is to be paid separately.
- 4. Unless otherwise agreed in writing, delivery of goods shall be ex works, ex warehouse, in which case goods shall be deemed to have been delivered by MAD EU and accepted by Principal, as soon as they have been offered to Principal.
- 5. If a customer from within the EU (but outside Luxembourg) collects the goods from suppliers warehouse, customer must provide a transport declaration. If no transport declaration is being provided, customer must pay Luxembourg VAT.
- 6. If a customer from outside the EU collects the goods from suppliers warehouse, customer must provide an export accompanying document (aed document) If no such document is being provided, customer must pay Luxembourg VAT.
- 7. Unless otherwise agreed in writing the transport will take place at the expense and risk of Principal, also if the forwarder has stipulated explicitly that all transport documents must mention that all damage resulting from the transport are at the expense and risk of the sender. (ex works).
- 8. If MAD EU shows or provides a model, sample or specimen, this happens only by way of indication: the qualities of the goods to be delivered may deviate from the sample, model or specimen. The provision in article 3. applies accordingly.
- 9. Should Principal not take, or not take in time, the Products for legally invalid reasons, he will be in default, without proof of default. In that case MAD EU is authorized to store, or to sell to a third party, the Products at the Principal’s risk and expense, including the risk of loss of quality. Principal still owes the purchase price, increased by the interest and collection charges, by way of compensation. However, as the occasion arises, less the net yield of the sale to that third party.
- 10. Delivery takes place ex works, warehouse on the ground floor of only one address, which is understood to mean the place from where, or by means of which or on behalf of MAD EU, delivery is done. The delivery of Products is considered to have taken place:
- (a) when dispatched by intervention of a professional carrier; by transfer of the Products to the professional carrier;
- (b) if the Products are or have been collected by or on behalf of Principal; by receiving the Products;
- (c) when dispatched through a means of transport of MAD EU; by delivery to an address given by the Principal.
ARTICLE 7. Force majeure
- 1. If the delivery is wholly or partly prevented by force majeure, MAD EU is authorized to put the delivery on hold, or to wholly or partly annul the agreement insofar as it has not been executed and to demand payment concerning the parts that have actually been executed, this and that without being obliged to pay any damages to Principal.
- 2. Parties will inform each other as soon as possible of a (possible) condition of force majeure.
- 3. If this condition of force majeure has lasted for three months, both parties have the right to wholly or partly annul the Agreement in writing.
- 4. Force majeure in these GTCS is understood to mean: any circumstance independent of the will of MAD EU – also if this circumstance at the establishment of the agreement could already be foreseen – which permanently or temporarily prevents the fulfilment of the agreement, as well as insofar as not yet included in that: war, danger of war, civil war, revolt, work strike, exclusion of workers, transport troubles, fire and/or serious interruptions of operations in the company of MAD EU or of it’s suppliers.
ARTICLE 8. Complaints
- 1. Complaints concerning noticeable defects must be uttered in writing within seven (7) days after delivery of the goods, at the exceeding of which MAD EU is not obliged to any form of compensation. Defects, which could not reasonably be established within the aforementioned term, must immediately after establishment thereof, but not later than within 30 days after arrival of the Products, be reported in writing to MAD EU.
- 2. After discovery of any defect Principal is obliged to stop the usage and/or further delivery to third parties of the concerning Products without delay.
- 3. Principal will render all assistance, as required by MAD EU for investigation of the complaints, amongst other things by giving an opportunity to MAD EU to do an investigation or to have one done, or by returning some representative defective Products at MAD EU’s expense.
- 4. It is not open to Principal to return the Products before MAD EU has agreed to that in writing. The costs of returning the goods are for Principal and the Products remain at his risk. Returning never implies any recognition of liability.
- 5. Defects concerning a separate batch of Products, which is part of a delivery consisting of more lots, only give Principal the right to annulment of the entire Agreement if Principal cannot reasonably be expected to maintain the remaining part of the Agreement.
ARTICLE 9. Limited warranty and disclaimer
- (a) MAD EU warrants that under normal use in accordance with the applicable user manual the Products, shall, at the time of delivery to Principal and for a period of twelve (12) months from the date of delivery (or such other period as may be agreed upon in writing by the parties, or as communicated in writing at sale by MAD EU), be free from defects in material or workmanship and shall substantially conform to MAD EU’s specifications for such Product, or such other specifications as MAD EU has agreed to in writing, as applicable. Labor costs, (de)mounting and/or (de)installation are excluded from this warranty. MAD EU’s sole and exclusive obligation, and Principal’s sole and exclusive right, with respect to claims under this warranty shall be limited, at MAD EU’s option, to (1) repair or (2) provide a replacement of the defective or non-conforming Product or (3) to an appropriate credit for the purchase price thereof. MAD EU will have a reasonable time to repair, replace or credit. MAD EU is entitled at its option to replace the defective or non-conforming Product(s) with a product that has minor deviations in design and/or specifications not affecting the functionality of the agreed Product(s). The non-conforming or defective Products shall become MAD EU’s property as soon as they have been replaced or credited.
- (b) Principal may ship Products returned under warranty to MAD EU’s designated facility only in conformance with MAD EU’s then-current return material authorization policy. Where a warranty claim is justified, MAD EU will pay for freight expenses. Principal shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.
- (c) Notwithstanding the foregoing, MAD EU shall have no obligations under warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, use other than as set forth in the applicable user manual, neglect, improper installation or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling.
- (d) Subject to the applicable mandatory law, the express warranty granted above shall extend directly to Principal only and not to Principal’s customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by MAD EU.
- (e) Subject to the exclusions and limitations set forth in ARTICLE 18 of the Terms and Conditions, the foregoing states the entire liability of MAD EU and its affiliates in connection with defective or non-conforming Products supplied hereunder.
ARTICLE 10. Reservation concerning ownership
- 1. MAD EU reserves the right to ownership for all goods delivered by them to Principal, until the purchase price for all these has been paid in full.
- 2. If MAD EU within the framework of the agreement concluded with Principal, carries out activities to be reimbursed by Principal for the benefit of Principal, the reserved right of ownership also applies until Principal has also paid this claim of MAD EU in full.
- 3. The reserved right of ownership also applies in regard to claims which MAD EU might obtain towards Principal due to Principal’s failure in one or more of it’s obligations towards MAD EU.
- 4. As long as the ownership of the delivered goods has not been transferred to Principal, it may not hypothecate the goods or grant to a third party any other right on those other than within the framework of the normal operation of it’s company whereby Principal commits itself, in the case of sale on credit, to require from it’s customers an ownership reservation on the basis of the provisions of this article.
- 5. The Principal is obliged to keep carefully and as MAD EU’s recognizable ownership, the Products which have been delivered under ownership reservation and to insure these against risks like fire, explosion, damage and theft. At MAD EU’s first request to that effect Principal will assign all rights towards the insurers involved in this connection to MAD EU.
- 6. If and as long as MAD EU is owner of the Products, Principal will post MAD EU without delay in writing when any part of the Products has been lost, or has been damaged, or (any part of) the Products (has) have been seized and/or otherwise been claimed. Furthermore, Principal will inform MAD EU upon MAD EU’s first request where the Products, of which MAD EU is the owner, are.
- 7. In case of seizure, (provisional) moratorium or bankruptcy Principal will immediately point out to the seizing bailiff, the receiver or the curator bonis the (ownership) rights of MAD EU.
ARTICLE 11. Payment
- 1. Unless otherwise agreed in writing and without prejudice to the provisions in the following paragraph, payments to MAD EU are to be made within net 30 days after the date of invoice, which date will be considered the deadline. The date of the credit entry in MAD EU’s bank account applies as date of payment.
- 2. Unless explicitly agreed otherwise, all Principal’s payments, no matter how they were made, will be used in the first place to reduce the costs, subsequently to reduce the apparent interest and finally to reduce the principal money of the still unpaid invoices.
- 3. MAD EU must be notified in writing of possible objections against invoices, specifications, descriptions and prices within eight (8) days after the date of invoice. If this is not possible due to any cause, which cannot be imputed Principal, Principal will at any rate report in writing to MAD EU it’s objections as soon as is reasonably possible.
- 4. Comparison of debts or other forms of settlement are never allowed without explicit written agreement. MAD EU always has the right before delivery, or before continuing the delivery, to ask from Principal – according to MAD EU’s judgment – sufficient prepayment or security for the fulfillment of the obligation to pay, whereby MAD EU is authorized to postpone further deliveries if Principal does not fulfill these requirements, also in case a fixed delivery time has been agreed, this and that without prejudice to MAD EU’s right to claim compensation because of late fulfillment, or as the case may be non-fulfillment of the agreement.
- 5. If Principal does not pay within the agreed term he will be in default without any notice of default being required and MAD EU has the right – without any proof of default – to charge it’s interest from the due date of the unpaid invoice or invoices at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full.
- 6. If Principal gets in default, then from that moment all outstanding claims of MAD EU against Principal are immediately due.
- 7. All extrajudicial collection costs to be made by MAD EU will be for Principal’s account and are calculated in proportion to the outstanding amount in the way, as indicated below, on the understanding that these will be € 70,= at least. De extrajudicial collection costs will be calculated on the principal money, as follows: on the first € 3,000.= 15% on the following amount up to € 6,000.= 10% on the following amount up to € 15,000.= 8% on the following amount up to € 60,000.= 5% on any amount above € 60,000.= 3%.
ARTICLE 12. Consultancy and product development
- 1. If, on being asked, MAD EU acts in an advisory role, it is obliged to look after Principal’s interests to the best of it’s knowledge and ability.
- 2. In the case of product development, advice on promotional products to be applied, advice concerning creative concepts, offers for extensive projects with or without printed products, national or international market research on specific products or product enquiries concerning not concretely described products, Principal owes – in all cases which do not provide the delivery of concretely described products – a compensation at an hourly rate or at a fixed rate, to be agreed upon beforehand between the parties.
ARTICLE 13. Intellectual property
- 1. MAD EU declares that, as far as it knows, the Products do not infringe on third party’s intellectual property rights applicable in the Luxembourg. However, MAD EU cannot indemnify Principal against possible infringement on intellectual property rights of third parties.
- 2. If MAD EU manufactures Products, or has these manufactured, by specific assignment of Principal on the basis of a design which is not originating from MAD EU, Principal will indemnify MAD EU against all infringements in regard to (the manufacturing and the usage of) the Products on the intellectual property rights of third parties.
- 3. The copyright on sketches, drawings, cliché’s, photographs, models and suchlike designed by, or as the case may be established by MAD EU, will at all times be held by it, even if Principal concerning this matter has placed an order and has fulfilled the financial obligations resulting from this.
- 4. Principal stands by not infringing (nor allowing or enabling third parties to do so) on intellectual property rights of MAD EU, or it’s suppliers, concerning the Products.
ARTICLE 14. Return of rented or loaned goods
- 1. If MAD EU in executing the agreement has rented and/or loaned goods to Principal, against payment or otherwise, Principal is obliged to return these goods in the original state, default-free and complete, within fourteen (14) days after the termination of the agreement, for whatever reason. The term mentioned for this is to be applied as deadline.
- 2. If Principal, for whatever reason, remains in default concerning the obligation mentioned under paragraph 1, MAD EU has the right to recover the damage and costs resulting from this, including the costs of replacement and lost rental income, from Principal, without prejudice to the other rights, MAD EU is entitled to in this connection.
ARTICLE 15. Responsibilities Principal
- 1. Principal will make available to MAD EU on time all data necessary for the execution of MAD EU’s activities and guarantees the correctness and completeness thereof.
- 2. Principal will not wholly or partly remove the brand and/or distinguishing marks on the Products or make them invisible.
ARTICLE 16. Processing of personal data
- 1. Personal data will be processed in a proper, careful and confidential way, observing the applicable national and international legislation and regulations, including the General Data Protection Regulation (‘GDPR’). This also includes cooperating with legitimate requests from data subjects within the meaning of the GDPR.
- 2. Furthermore, personal data will not be processed other than in a way that is compatible with the objectives for which they have been obtained and shall not be stored or processed any longer than is required.
- 3. Suitable technical and organisational safeguards shall be put in place to ensure that personal data are protected against destruction, loss or any form of unlawful processing, taking into account the state of the art and the type of processing.
- 4. Where applicable, the Principal shall immediately on request of MAD EU cooperate with the creation of a contract to be provided by MAD EU as referred to in Article 28 GDPR (a processor’s contract) for the processing of personal data by MAD EU, to the extent that an existing contract between the parties does not already qualify as such a contract.
- 5. MAD EU shall inform the Principal as soon as possible, but in any case without unreasonable delay, of a personal data breach, such to the extent that it concerns personal data that in the context of a contract between the parties have been obtained from the principal or are processed about the Principal by MAD EU and/or concern persons the contract relates to.
ARTICLE 17. Export/Import Controls
- Principal understands that certain transactions of MAD EU are subject to export control laws and regulations, including but not limited to the UN, EU and the USA export control laws and regulations (“Export Regulations”), which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of MAD EU to export, re-export or transfer Products as well as any technical assistance, training, investments, financial assistance, financing and brokering will be subject in all respects to such Export Regulations and will from time to time govern the license and delivery of Products and technology abroad by persons subject to the jurisdiction of the relevant authorities responsible for such Export Regulations. If the delivery of products, services and/or documentation is subject to the granting of an export or import license by certain governmental authorities or otherwise restricted or prohibited due to export/import control regulations, MAD EU may suspend its obligations and the Principal’s/end-user’s rights until such license is granted or for the duration of such restrictions or prohibitions. Furthermore, MAD EU may even terminate the relevant order in all cases without incurring any liability towards the Principal or end-user.
- Principal warrants that it will comply in all respects with the export, re-export and transfer restrictions set forth in such Export Regulations or in export licenses (if any) for every Product supplied to Principal. Principal accepts the responsibility to impose all export control restrictions to any third party if the items are transferred or re-exported to third parties. Principal shall take all actions that may be reasonably necessary to ensure that no customer/purchaser or end-user contravenes such Export Regulations. Principal shall indemnify MAD EU against any and all direct, indirect and punitive damages, loss, costs (including attorney’s fees and costs) and other liability arising from claims resulting from Principal‘s or its customers’ breach or non-compliance with this article.
- Principal acknowledges that the obligations contained in this Agreement shall survive the termination of any agreement of other arrangement under which the products, software or technology was provided to Principal. In addition, in the event of any conflict in the terms provided in this Agreement with any other document entered into between Principal and MAD EU, Principal understands that the terms of this Agreement shall control and be binding upon Principal.
ARTICLE 18. Limitation of liability
- (a) MAD EU SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SALE OF ANY PRODUCTS OR SERVICES BY MAD EU OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR NY OTHER LEGAL THEORY – EVEN IF MAD EU HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. MAD EU’S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS PRINCIPAL UNDER ANY AGREEMENT SHALL NOT EXCEED AN AMOUNT OF TEN PERCENT (10%) OF THE RELATED AGREEMENT.
- (b) Any Principal’s claim for damages must be brought by Principal within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
- (c) The limitations and exclusions set forth above in this Article 18 shall apply only to the extent permitted by applicable mandatory law.
ARTICLE 19. Annulment
- 1. In case of a (provisional) moratorium, bankruptcy, shut down or liquidation of Principal’s company, all Agreements with Principal will be legally annulled, unless MAD EU informs Principal within a reasonable time (as the occasion arises at the demand of the receiver or the trustee) to demand the fulfillment of (a part of) the Agreement(s) concerned, in which case MAD EU is authorized, without proof of default, to:
- (a) delay the execution of the Agreement(s) concerned until payment has been secured sufficiently; and/or
- (b) delay all it’s possible obligations in relation to Principal; this and that without prejudice to MAD EU’s other rights under any Agreement whatsoever with Principal and without MAD EU being obliged to any compensation.
- 2. If Principal does not, or not properly, or not within the stipulated term fulfil or otherwise does not fulfil in time any obligation which might result for it from any Agreement, Principal is in default and MAD EU is authorized, without proof of default or legal intervention to:
- (a) delay the execution of that Agreement and of directly related Agreements, until payment has been secured sufficiently; and/or
- (b) annul wholly or partly that Agreement and directly related Agreements; all this without prejudice to MAD EU’s other rights under any Agreement with Principal whatsoever and without MAD EU being obliged to any compensation.
- 7. In case an event occurs as meant in paragraph 1 or paragraph 2, respectively all claims of MAD EU against Principal and the claims meant by reason of the Agreement(s) concerned, are immediately and in their entirety due and MAD EU is authorized to take back the Products concerned (see article 10). In that case MAD EU and it’s authorized representative(s) are authorized to set foot on Principal’s premises and in Principal’s buildings in order to take possession of the Products. Principal is obliged to take the necessary measures in order to give MAD EU the opportunity to exercise her rights.
ARTICLE 20. Disputes, competent judge and applicable law
- 1. Disputes between parties, including those which are considered such by one of the parties, will as much as possible be resolved by mutual consultation.
- 2. If parties fail to come to a solution, disputes will be brought before the competent judge in the district in which MAD EU has it’s domicile (11/13, Boulevard de la Foire, L-1528 Luxembourg), save insofar as compelling competence rules would hinder this choice. This Agreement shall thus be governed by and construed in accordance with and subject to the laws of the Grand Duchy of Luxembourg.
- 3. If a stipulation of these conditions appears to be invalid, it will not affect the validity of the whole agreement. In that case MAD EU has the right to replace such a stipulation by a – for Principal not unreasonably burdensome – stipulation which comes closest to the invalid one.