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General sales-agreements

GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT DAMI DESIGN B.V., WAALWIJK (THE NETHERLANDS).

Article 1. Definitions
In these terms and conditions, the terms listed below have the following meaning:
DMLUXURY: DAMI Design B.V. and all affiliated companies, unless these companies have declared these conditions inapplicable.
Client: every (legal) person who has given an order to DMLUXURY for the delivery of products, has expressed the intention to do so or has invited DMLUXURY to make an offer to do so.
Products: products (to be) delivered DMLUXURY.

Article 2. Scope
These terms and conditions apply to all legal acts between DMLUXURY and Client, including all offers made by DMLUXURY, all agreements between DMLUXURY and Client, and to the execution thereof. In the event that the applicability of these terms and conditions is established in respect of any transaction between Client and DMLUXURY, these terms and conditions will be deemed to have been met by operation of law in all subsequent transactions with Client in question. Terms and conditions of Client, including purchase terms and conditions, do not apply and their applicability is expressly rejected unless and insofar as DMLUXURY has explicitly agreed to their applicability in writing.
Additions to or deviations from these terms and conditions only apply if and insofar as these have been confirmed in writing by DMLUXURY to Client, only relate to the specific transaction for which they have been agreed and cannot be invoked in other transactions.
Should any provision of these terms and conditions prove to be null and void or voidable, the other provisions of these terms and conditions will remain in full force and effect, while DMLUXURY will at all times be entitled to replace the provision in question with another provision of similar purport.
Commercial terms, used in quotations, order confirmations or otherwise, will be interpreted in accordance with the International Rules for the Interpretation of Commercial Terms produced by the International Chamber of Commerce (Incoterms), as in force at the time of the conclusion of the agreement.

Article 3. Offers and agreements
All offers, quotations, images, catalogues, sizes, weights, colours and other information provided by DMLUXURY are without obligation and can only be considered as an invitation to Client to make a further offer. Without prejudice to the foregoing, unless explicitly stated otherwise, quotations are valid for a period of thirty days only.
All indications in offers, quotations or agreements and the appendices thereto, such as (but not limited to) illustrations, drawings, sizes, weights, yields, and colours, as well as the properties of any trial copies or samples provided, are indicative only. Minor deviations are therefore not at the risk and expense of DMLUXURY and no rights can therefore be derived from them by Client.
An agreement between DMLUXURY and Client will only be concluded after an order has been confirmed in writing by DMLUXURY, or after DMLUXURY has actually started the execution of the order in whole or in part.
Verbal commitments by and agreements with subordinates of DMLUXURY do not bind DMLUXURY until and insofar as they have been confirmed in writing by DMLUXURY.
If Client does not agree with the order confirmation, this will be notified to DMLUXURY in writing within five days, failing which the order confirmation will become irrevocable and any additional costs resulting from a subsequent change desired by Client will be for Client’s account.
Obvious mistakes or errors in offers by DMLUXURY release DMLUXURY from its obligation to fulfil its obligations and/or any obligations to pay compensation ensuing therefrom, even after the conclusion of the agreement.
In the event that the agreement is cancelled by Client after the conclusion of the agreement, for whatever reason, or is terminated by DMLUXURY due to an attributable shortcoming on the part of Client, all costs already incurred by DMLUXURY, as well as the amount of loss of profit and other damage, will be for the account of Client.
If the order is given on behalf of a legal entity, the person giving the order is jointly and severally liable for the fulfilment of the obligations towards DMLUXURY created on behalf of the legal entity in question.
Client and its personnel will observe secrecy towards third parties who are not involved in the execution of the order of all information of a confidential nature (including drawings, models, constructions, diagrams and further business information and know-how) of DMLUXURY, in the broadest sense of the word, which has been made available to Client by DMLUXURY or has been brought to Client’s knowledge. These products will be returned at DMLUXURY’s first request and without delay.

Article 4. Delivery
The agreed delivery time will commence at the later of the following times:
the day of the conclusion of the agreement;
the day of receipt by DMLUXURY of the documents, information, etc., necessary for the performance of the order;
the day of receipt by DMLUXURY of that which will be paid in advance in accordance with the agreement.
The delivery time will be determined by DMLUXURY by approximation and will therefore never be regarded as a deadline, so that exceeding the delivery time will never automatically lead to an attributable shortcoming on the part of DMLUXURY. Except for intent or gross negligence on the part of DMLUXURY, exceeding the delivery time does not entitle Client to terminate the agreement in whole or in part.
DMLUXURY is entitled to make part deliveries and invoice per part delivery. If DMLUXURY is unable to deliver the entire ordered quantity at once (for whatever reason), DMLUXURY is also entitled to make part delivery(s), or to suspend the agreement and/or to deliver other equivalent or similar products in consultation with Client.
Delivery will take place Ex Works as referred to in the Incoterms 2020. Products are deemed to have been delivered as soon as DMLUXURY has informed Client that the products are ready for collection. If deviating delivery agreements are made, the delivery costs and insurance costs will be fully for Client’s account.
Products that are ready for shipment will be collected immediately after notification from DMLUXURY, or within a period set by DMLUXURY for this purpose, failing which DMLUXURY will be entitled, at its election:
to move the products in the name and at the risk and expense of Client to any agreed place of delivery, or to store the products in the warehouses of DMLUXURY or of third parties, whereby it applies that the costs related thereto (in the broadest sense of the word) will be paid by Client to DMLUXURY;
regard the agreement as terminated without requiring judicial intervention, without prejudice to the right to compensation and the contractual interest due thereon from the date of termination.
If Client requests the delivery of products in a manner other than the usual manner, Client will owe DMLUXURY in full the related costs and will pay these costs to DMLUXURY in advance.
Client is obliged to purchase the ordered products. Consequently, Client will take delivery of the purchased products within the agreed period of time so that DMLUXURY can fulfil its delivery obligation.

Article 5. Guarantees
If DMLUXURY provides a guarantee to Client with respect to the products (to be) delivered by DMLUXURY, this will only be made known to Client in writing and explicitly (using the term “guarantee”). In the absence of such an explicit written notification, a reliance on any guarantee provision (with the exception of mandatory statutory provisions in this respect) is not possible.
If a claim under guarantee turns out to be well-founded, DMLUXURY is free to choose to repair or replace the products in question or to credit a proportional part of the invoice. In the event that DMLUXURY proceeds to repair and/or replace, Client will at its own risk and expense return the delivered products to DMLUXURY.
Any guarantee obligations on the part of DMLUXURY will lapse if errors, defects or imperfections are the result of incorrect, careless, injudicious use, inexpert use or management of delivered products by Client or third parties engaged by Client. This also applies if these errors, defects or inadequacies are the result of an external cause such as (non-limitative) fire damage or water damage or if Client or a third party has made changes to the products supplied by DMLUXURY or has had changes made without DMLUXURY’s permission.
The products of DMLUXURY are manufactured with the greatest possible care, frequently using natural materials such as wood, marble, leather and natural stone. DMLUXURY only supplies handmade products. As a result, there may be differences in colour and finish of the DMLUXURY products.
The range of natural colour, structure and other differences in wood, leather, natural stone and marble is one of the characteristics of the natural products used by DMLUXURY and never constitute a ground for liability or a complaint. This also applies to the ‘working of the materials’ used by DMLUXURY in its products: this is because of their natural properties and the influence on them of external factors (such as, but not limited to, sunshine and temperature changes). In addition, with respect to marble products and/or components, DMLUXURY rejects liability and/or any claim under guarantee if the complaint relates to the quantity of marble veins in the product (or part thereof), discolouration or so-called marble stains.
Metal lacquer: the following applies to DMLUXURY products with metal lacquer. Colour differences and/or the colour of our products are explicitly outside the scope of any guarantee provision. As time passes, colour differences may occur in DMLUXURY’s products or colour variations may occur. These variations and differences are inherent in the use of metals. Colour differences, colour variations or colour fading are part of the natural patina process of our products and contribute to the authenticity of DMLUXURY products with their own unique characteristics.
In all cases, there is no ground for liability or complaint if the maintenance instructions supplied by DMLUXURY (and the maintenance products mentioned therein) have not been observed and followed.

Article 6. Complaints
Subject to proof to the contrary, products will be deemed to have been delivered in number, weight, type and size in accordance with the information contained in the shipping documents. Deviations and other defects immediately visible on delivery will be noted immediately on the delivery note and reported to DMLUXURY by registered letter within 3 working days of delivery. Non-visible defects will be reported to DMLUXURY by registered letter within 3 working days of discovery, and in any event within one month of delivery at the latest. After the expiry of these periods, the delivered products will be deemed to have been irrevocably and unconditionally accepted by Client and deviations and defects not reported in time can no longer be invoked. In the event of apparent defects, DMLUXURY is free to choose whether to repair or replace the products in question at its own discretion, or to credit Client for a proportional part of the invoice.
Any complaint will at least include a detailed and accurate description of the defect, supported by evidence (such as photographs with demonstrable date and time, samples, expert reports, etc.).
DMLUXURY will always be enabled to investigate the correctness of the complaint in question on site and/or to retrieve the delivered products, unless DMLUXURY has indicated in writing and unequivocally that it will refrain from conducting an on-site investigation. In that case, the delivered products will be kept available in their original packaging.
Products which appear to Client to be faulty will be returned to DMLUXURY carriage paid and in their original condition within 10 working days of the notification referred to in Article 6.1, after DMLUXURY has given its explicit and unambiguous written consent to that effect, after which DMLUXURY will be free to repair or replace the product in question or to credit Client for a proportional part of the invoice. Before proceeding with the return shipment, Client will therefore consult with DMLUXURY at all times within 10 working days regarding the return of the products that appear to Client to be faulty.
Reporting any defect will not suspend the payment obligation of Client with regard to the products in dispute. Any legal claims in respect of defects reported in a timely manner will be submitted no later than one year after the written notification, on pain of forfeiture.
Quality requirements or quality standards of products to be delivered by DMLUXURY, whether or not after processing, will be explicitly agreed upon in writing. Minor deviations customary in the sector or technically unavoidable deviations and differences in quality, colour, size or finish will not lead to any liability on the part of DMLUXURY. What is stated in Article 5 about the natural products used by DMLUXURY will also apply in full here.
Any guarantee obligation on the part of DMLUXURY will not extend beyond the quality clauses or explicitly agreed quality standards.
If the agreement concerns products that DMLUXURY obtains from third parties, DMLUXURY’s liability is at all times limited to what this third party is liable to DMLUXURY for.
DMLUXURY is not obliged to accept returns from Client, unless DMLUXURY has given its explicit and prior consent thereto. Acceptance of returns does not in any case imply acknowledgement by DMLUXURY of the grounds for return given by Client. The risk with regard to returned products remains at all times with Client.
DMLUXURY accepts no liability whatsoever for defects resulting from normal wear and tear, injudicious use, maintenance, installation, repair or assembly work not carried out or carried out incorrectly, or changes made by Client or third parties. The foregoing implies that Client will observe the maintenance instructions supplied by DMLUXURY and will demonstrably pass on these instructions to end users upon delivery of DMLUXURY’s products.
DMLUXURY accepts no liability for damage caused to property of Client during work, unless and insofar this damage is the result of gross negligence or intent to be demonstrated by Client.
DMLUXURY is at all times entitled to retain possession of property of Client offered for repair, inspection, testing, cleaning or otherwise, until the invoice relating to the work carried out and costs incurred by DMLUXURY in this respect has been paid in full.
DMLUXURY accepts no liability for complaints resulting from wear and tear and/or signs and/or acts of use, complaints resulting from the fact that products have not been handled or maintained correctly and/or have not been maintained and/or treated in accordance with the instructions given by DMLUXURY in this respect. Furthermore, DMLUXURY accepts no liability for the occurrence of discolouration and/or cracks and/or seams and/or distortions resulting from heat sources, temperature influences or weather conditions and/or changes to the DMLUXURY products resulting from changes in the air humidity percentage in the room concerned and surrounding areas.

Article 7. Force majeure
If DMLUXURY is prevented from fulfilling the agreement due to force majeure, DMLUXURY is entitled to suspend fulfilment for a period of three months and – if the prevention of fulfilment has not yet disappeared after the expiry of the period – to terminate the agreement, without being obliged to pay any compensation to Client or third parties, other than the restitution of any monies already paid by Client for which no deliveries have been made. Any products or services already delivered will be paid by Client.
Force majeure as referred to in Article 7.1 is understood to mean any circumstance – not being intent or gross negligence on the part of DMLUXURY – which prevents DMLUXURY from fulfilling the agreement. Examples (expressly not exhaustive) of force majeure include domestic (and foreign) riots, war, strikes, natural disasters, epidemics, pandemics, terrorism, threats, personal circumstances, weather conditions, traffic conditions such as but not limited to roadblocks, roadblocks and traffic jams, fire, government measures, illnesses, etc.

Article 8. Liability
DMLUXURY accepts no liability for loss suffered by Client or third parties as a result of DMLUXURY’s failure to comply with the agreement, or to do so on time or properly, unless it concerns loss which is the direct and exclusive result of intent or gross negligence on the part of DMLUXURY.
Any further liability of DMLUXURY for loss, on any grounds whatsoever and including loss suffered by third parties, is expressly excluded.
Without prejudice to the provisions of Article 8.1, liability for business stagnation and consequential loss is in any case excluded. Liability for loss of profit is also expressly excluded.
In the event of liability, only the loss for which DMLUXURY is insured, or, if the loss is not covered by any insurance taken out by DMLUXURY, the liability will be limited to the amount of the net invoice value of the contract. If Client has carried out repairs and/or modifications to products without prior, explicit and written permission, any liability and/or guarantee obligation of DMLUXURY will lapse.
Client indemnifies DMLUXURY against all claims of third parties due to product liability as a result of a defect in a product delivered by Client to a third party that (partly) consisted of products and/or materials delivered by DMLUXURY.
DMLUXURY accepts no liability for complaints resulting from wear and tear and/or signs and/or acts of use, complaints resulting from the fact that products have not been handled or maintained correctly and/or have not been maintained and/or treated in accordance with the instructions given by DMLUXURY in this respect. Furthermore, DMLUXURY accepts no liability for the occurrence of discolouration and/or cracks and/or seams and/or distortions resulting from heat sources, temperature influences or weather conditions and/or changes to the DMLUXURY products resulting from changes in the air humidity percentage in the room concerned and surrounding areas.

Article 9. Prices and terms of payment
The prices quoted by DMLUXURY are exclusive of turnover tax and other government levies on sales and delivery and, unless explicitly agreed otherwise in writing, exclusive of the costs of packaging, insurance, transport, etc.
The prices stated in offers, contracts and order confirmations are based on the cost factors applicable at the time of the conclusion of the agreement, such as exchange rates, manufacturer’s prices, prices of raw materials and materials, wage and transport costs, insurance premiums, taxes, import duties and other government levies. If circumstances occur after the conclusion of the agreement which affect the cost price, DMLUXURY is entitled to charge these changes to Client separately or to terminate the agreement in whole or in part.
For new clients (Clients who have placed fewer than five prior orders with DMLUXURY), the orders placed will be paid to DMLUXURY in advance within 14 days after receipt of the invoice. Delivery periods will not start to run until full payment has been received from Client. Existing Clients, who have always paid on time and in full, will in principle be invoiced as of the delivery date, on the understanding that a down payment of 50% of the invoice amount has already been paid by then. This down payment will be credited to the bank account number indicated by DMLUXURY within 14 days after DMLUXURY has sent the order confirmation. DMLUXURY expressly reserves the right to unilaterally deviate from this.
Invoices will be paid within 14 days after the invoice date to a bank account number to be specified by DMLUXURY.
The right of Client to set off any claims from Client against DMLUXURY’s invoices is excluded, unless DMLUXURY has been declared bankrupt. Nor is the Client permitted without the prior written approval of DAM to apply discounts to agreed and invoiced amounts.
DMLUXURY is entitled to postpone delivery and shipment, until Client has provided adequate security for payment. Client is liable for any loss suffered by DMLUXURY as a result of delayed delivery.
DMLUXURY is at all times entitled to demand payment of an additional advance on the amount to be paid by Client and/or to demand security from Client in any other way for the fulfilment of the obligations ensuing from the agreement.
If Client fails to pay any invoice in full on time, Client will be deemed to be in default by operation of law without further notice of default being required, and DMLUXURY will be entitled to suspend the execution of any other agreements with Client in question or to terminate these agreements, and Client will owe interest of 2% per month from the first day after the expiry of the payment term referred to in 8.4 until the day of full payment on the outstanding amount, whereby the interest over part of the month will be calculated as a full month.
DMLUXURY is entitled to charge administration costs and extrajudicial collection costs ss soon as Client is in default. The administration costs amount to € 25 per payment reminder. The extrajudicial collection costs amount to 15% of the outstanding amount with a minimum of € 150. DMLUXURY reserves the right to charge the extrajudicial collection costs instead on the basis of the rates mentioned in the Dutch Extrajudicial Collection Costs Standardisation Act (Wet Normering Buitengerechtelijke Incassokosten) and the accompanying decree Compensation for Extrajudicial Collection Costs (Vergoeding voor Buitengerechtelijke Incassokosten). These costs are due if the claim is not paid within fifteen days after an initial written reminder.
In addition, in the case as described in Article 9.8 above, DMLUXURY is entitled to suspend all further deliveries and services, without prejudice to the right to demand (additional) advance payment for future deliveries and/or otherwise to provide adequate security.
DMLUXURY is free to determine to which claims (partial) payments of Client are attributed, but in any case, payments will first be deducted from any legal costs, then from the extrajudicial collection costs, then from the interest owed and only as a last resort from the principal.

Article 10. Retention of title and security
All products delivered by DMLUXURY, including those for which the invoice for delivery has already been paid, will remain the property of DMLUXURY, until all financial obligations of Client to DMLUXURY, for whatever reason, including the obligation to pay interest and/or extrajudicial collection costs, have been fulfilled. In the event of processing or mixing of products subject to retention of title with products not owned by DMLUXURY, DMLUXURY will be deemed co-owner of the new products thus created in proportion to the total amount owed to DMLUXURY in respect of the value of those new products or, as the case may be, those new products will now be deemed to have been pledged to DMLUXURY and Client will, at DMLUXURY’s first request, store those products at a location to be designated and managed by DMLUXURY.
As long as products delivered are subject to a retention of title or DMLUXURY is co-owner of products or is subject to a right of pledge in favour of DMLUXURY, these products may not be encumbered by Client or disposed of outside the normal course of business and all risks of total or partial damage, destruction or loss, for whatever reason, will be for the account of Client. Client will adequately insure the products against theft, fire and other dangers at its own expense, but on behalf of DMLUXURY.
DMLUXURY is irrevocably authorised by Client to enter the place where the products concerned are located immediately after the retention of title has been invoked and to recover these. If Client fails to return the products referred to in this article immediately upon request, Client will be liable for an immediately due and payable penalty of 15% of the sale value of the products for each day or part of a day that Client fails to do so, with a minimum of € 1,000 for each day that the failure persists, notwithstanding DMLUXURY’s right to additional compensation if the loss exceeds the total of the penalties thus forfeited.
Client will inform any third party who wishes to attach or has attached the products subject to retention of title (including attachment by the tax authorities of the property found on the premises) or the administrator or the bankruptcy trustee in the event of suspension of payments/ debt restructuring or bankruptcy, immediately and using the fastest means of communication (at the time of attachment to the bailiff in person and immediately afterwards by telephone and for confirmation by email, fax or letter to Client from the bailiff) that the products in question are the property of DMLUXURY. The foregoing will be done by simultaneous notification to DMLUXURY by email in cc (if email is not possible, then by return of mail). Client will in any event be negligent if this notification has not been made immediately to the bailiff and/or the notification has not reached the attaching party within twelve hours following the attachment in question. If Client remains negligent with regard to the aforementioned under 4., Client will be liable for an immediately payable and not subject to judicial mitigation penalty of 15% of the sales value of the delivered products for each day or part of the day that Client remains negligent, with a minimum of € 1,000 per day that the negligence continues, this without prejudice to DMLUXURY’s right to additional compensation in the event that its loss exceeds the total of the penalties thus forfeited.
DMLUXURY is at all times entitled to demand payment in advance from Client or, in the opinion of DMLUXURY, adequate additional security for the fulfilment of Client’s obligations, including collection costs and interest, even if those obligations have not yet become due and payable. If Client does not comply with a request to that effect from DMLUXURY within 14 days, DMLUXURY is entitled to terminate the agreement or to immediately suspend or terminate the delivery of products and services under this agreement and any other agreements and Client is in default, without any notice of default being required. Furthermore, in that case, Client will establish a right of pledge on the movable property located under Client at DMLUXURY’s first request and in favour of DMLUXURY. DMLUXURY will never be liable for any loss resulting herefrom for Client or third parties.

Article 12. Intellectual property
DMLUXURY reserves the rights and powers vested in it by virtue of the Copyright Act.
All intellectual property rights to all analyses, designs, reports, quotations, preparatory material thereof developed or made available pursuant to the agreement rest exclusively with DMLUXURY and/or its licensors and may not be reproduced, copied or shown or made available to third parties for any purpose whatsoever, in whole or in part, without the prior written consent of DMLUXURY, unless this is required by the implementation of the Copyright Act.
DMLUXURY reserves the right to use the knowledge gained through the execution of the work for other purposes, insofar as no confidential information is brought to the attention of third parties.
Client is not permitted to remove or change any designation concerning copyrights, trademarks, trade names or other intellectual property rights from the products. If Client grants DMLUXURY an order for the reproduction or reproduction of objects protected by the Copyright Act or any intellectual property right, Client indemnifies DMLUXURY in and out of court for all consequences, both financial and otherwise, arising from any reproduction. Client guarantees that no rights of third parties oppose the making available to DMLUXURY of materials for the purpose of use or processing and Client will indemnify DMLUXURY against any action based on the claim that such making available, use or processing infringes any right of third parties.
DMLUXURY will indemnify Client against any legal action based on the claim that materials developed by DMLUXURY itself infringe an intellectual property right applicable in the Netherlands, provided that Client immediately informs DMLUXURY in writing of the existence and content of the legal action and leaves it entirely to DMLUXURY to reach a settlement. To this end, Client will provide DMLUXURY with the necessary powers of attorney, information and cooperation.
The obligation to indemnify referred to above will lapse if and to the extent that the infringement in question is related to changes made by Client to the materials or caused to be made by third parties.
If it is established at law that DMLUXURY’s own products infringe any intellectual property right belonging to a third party or if, in DMLUXURY’s opinion, there is a reasonable chance that such an infringement may occur, DMLUXURY will strive to either obtain the right for Client to continue using the materials or the part in question, or replace it with other materials or the part in question which does not infringe or to modify it in such a way that the infringement is thereby terminated.
Any other or more far-reaching liability or indemnity obligation on the part of DMLUXURY for infringement of third-party intellectual property rights is excluded, including liability and indemnity obligations on the part of DMLUXURY for infringements caused by the use of supplied materials in a form not modified by DMLUXURY, in connection with products not supplied or provided by DMLUXURY in a manner other than that for which materials were developed or intended.
DMLUXURY’s name and/or logo will be used on DMLUXURY’s materials and will be registered by DMLUXURY, as well as DMLUXURY’s name, unless explicitly agreed otherwise in writing.

Article 12. Applicable law and choice of forum
All offers, orders and agreements between DMLUXURY and Client to which these general terms and conditions apply will be governed exclusively by Dutch law.
The Vienna Convention on Contracts for the International Sale of products (11 April 1980, Bulletin of Acts and Decrees 1981 no. 184) will not apply, nor will any other international regulation of which exclusion is permitted.
All disputes that may arise between the parties, however named, will be settled exclusively by the Dutch court in DMLUXURY’s place of establishment, unless mandatory provisions designate another, competent, Dutch court.
With respect to any legal proceedings, Client formally and irrevocably elects domicile at the address made known to DMLUXURY at the time of the conclusion of the agreement. This implies that legally valid official documents and registered mail may be presented at that address at any time, unless another address has been indicated by registered letter.

Article 13. General terms and conditions in Dutch and English.
These terms and conditions have been drawn up and are available in Dutch and English. In the event of any difference or inconsistency between the Dutch and English texts of these terms and conditions or any difference in the interpretation thereof, the text and interpretation of the terms and conditions drawn up in the Dutch language will prevail at all times.

DAMI Design B.V. Waalwijk, The Netherlands, 2020