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Article 1. Applicability

1. These general terms and conditions apply to all offers and quotations from Brinker Carpets Nederland B.V. (hereinafter referred to as "Brinker") and to all agreements between Brinker and its (potential) customers and clients (hereinafter referred to as "Buyer"). The general terms and conditions are applicable to the delivery of Products by Brinker, the performance of work, and the provision of services by Brinker, as well as all other legal relationships between Brinker and Buyer (each a "Product").

2. If a written agreement with the Buyer deviates from these general terms and conditions, the deviating provisions shall prevail.

3. The general terms and conditions of the Buyer are never accepted and are hereby explicitly rejected by Brinker as far as necessary.

4. Brinker is entitled to unilaterally change these general terms and conditions if it deems it necessary. Brinker will inform the Buyer of any changes. If the Buyer is a natural person who is not acting in the exercise of a profession or business, and the change results in the Buyer receiving a performance that deviates significantly from the original performance, this Buyer has the right to terminate the agreement as of the date the changed condition comes into effect.

Article 2. Offer and Agreement

1. All offers and quotations from Brinker, as well as any statements provided by Brinker, are non-binding and not obligatory for Brinker, unless explicitly stated otherwise in writing. 2. An Agreement between the Buyer and Brinker is only established upon receipt of the order confirmation sent by Brinker. The Buyer has 24 hours after the order confirmation is sent to cancel the agreement. If the Buyer does not respond within 24 hours after the order confirmation is sent, the agreement becomes binding.

3. Changes to an agreement between Brinker and Buyer and deviations from these general terms and conditions are only valid if they have been expressly agreed upon in writing between Brinker and Buyer. If changes to an Agreement result in higher costs or a higher pricing than originally estimated, Buyer is liable for these costs and prices, and Brinker is entitled to charge them to Buyer.

Article 3. Quality and Description

1. Brinker delivers the Products as closely as possible in accordance with the description, quality, and quantity as described in the agreement (quote). All images, drawings, and data of Products offered on the website or in brochures are only approximate (for example: colors and dimensions may differ from reality). Usual or minor technical deviations in quality, color, length, width, weight, and regarding a design are not grounds for compensation and/or cancellation.

2. For all handmade Products that are confirmed according to precise measurements, size differences of up to 5% are acceptable. These deviations do not affect the agreed price. For all Products, a color variation due to handcrafting is possible. Brinker is not liable for any damage caused by discoloration and/or changes to the Products due to light exposure and/or other external factors. Brinker cannot be held liable for any consequential damage arising from the use of the Products (for example, the subfloor). The Buyer must verify whether the Products from Brinker are suitable for the intended use. The Buyer is responsible for maintaining the Products as best as possible to ensure their longevity. Brinker provides non-binding advice on the use of the Products and any maintenance products that may enhance the lifespan of the Products.

3. Brinker does not guarantee that the Products are suitable for the purpose for which the Buyer intends to use them, even if this purpose has been communicated to Brinker.

Article 4. Prices

1. All prices quoted by Brinker are exclusive of VAT and - unless otherwise stated - exclusive of freight or transportation costs.

2. All prices quoted by Brinker are based on the prices for taxes, duties, and other (government) charges applicable at the time of that quotation.

Such charges will in all cases be fully passed on to the Buyer at the rates applicable at the time Brinker executes the Agreement with the Buyer.

3. If other price-determining factors, such as materials, freight, wages, increase so significantly after the conclusion of the Agreement that Brinker can no longer be expected to perform the Agreement unchanged, Brinker is entitled to adjust the agreed prices in the interim. If and to the extent that resulting price increases lead to an increase of more than 20%, the Buyer is entitled to terminate the agreement with Brinker without further notice period at no cost, without prejudice to the obligation to compensate for the Products already delivered.

4. If and insofar as, after the conclusion of an Agreement with a Buyer or during the execution of that Agreement, Brinker is instructed to carry out additional work, provide additional services, or deliver products that were not originally agreed upon, the Buyer shall be required to pay the prices applicable at that time within Brinker for the relevant work, services, or products. Taxes, import duties, levies, or other charges, whether imposed by the government or not, that are introduced or increased after the offer or the establishment of the agreement will be charged to the Buyer.

5. Additional costs incurred due to shipping or express orders and the like are always the responsibility of the Buyer.

Article 5. Execution of the agreement

1. All delivery deadlines mentioned by Brinker have been established to the best of their knowledge based on the information available to Brinker at the time of entering into the agreement. The delivery deadlines will be observed by Brinker as much as possible, but they are indicative and are never fatal deadlines. A single breach of a specified delivery deadline, however, does not put Brinker in default.

2. Delivery takes place from Brinker’s warehouse. Brinker is never obligated to insure the Products, even if Brinker arranges for the shipping or transport of the Products at the request of the Buyer. From the moment of delivery, the Products are at the expense and risk of the Buyer.

3. If Brinker arranges the transportation of the Products, the risk of and during transportation is the responsibility of the Buyer. Brinker is free to choose the means of transport and unless otherwise agreed, is not obligated to insure the shipment.

Article 6. Storage

1. The Buyer is obligated to accept the Products upon delivery by Brinker. If for any reason the Buyer fails to accept the Products and they are ready at Brinker or otherwise offered for delivery, Brinker will, if its storage capabilities allow, store the Products at the request of the Buyer.

2. The Buyer is obligated to reimburse Brinker for the storage costs, according to the rate customary at Brinker and, in the absence of that, according to the rate customary in the industry, starting from the moment the Products are ready at Brinker, or if this is a later time, from the delivery date agreed upon in the purchase agreement.

Article 7. Transfer of Ownership and Consignment

1. All Products delivered by Brinker to Buyer remain the property of Brinker until all claims of Brinker against Buyer, for any reason whatsoever, have been fully paid by Buyer.

2. By accepting the Agreement (see article 2.2) by the Buyer and through these applicable general terms and conditions, a pledge is established on the conditional ownership of the goods to be delivered by Brinker to the Buyer, and, if Brinker wishes, a pledge in favor of Brinker will be established on the delivered goods after the transfer of ownership to the Buyer; the Buyer commits to provide full cooperation at first request in this regard.

3. The Buyer is entitled to sell the Products in the normal course of its business to end users, but as long as Brinker retains the ownership reservation mentioned in paragraph 1, the Buyer shall not be entitled, without prior written consent from Brinker, to give the goods delivered to the Buyer by Brinker in use to third parties, to rent them out, to pledge them, or to encumber them in any other way for the benefit of third parties, and it shall store the Products, for which Brinker has reserved ownership, carefully and sufficiently separated from other Products.

4. Products are delivered to the Buyer on a consignment basis only if explicit agreement has been reached. Consignment shipments are provided to the Buyer for a specific time frame, as indicated by Brinker. Brinker always reserves the right to terminate the consignment at any time and to reclaim the Products provided on consignment, in whole or in part.

5. Additional processing costs for consignment sight shipments arising from making the Products available, reintroducing returned Products into the assortment, increased interest costs, and possibly new labeling, are set at 5% of the purchase price of the respective Products. For consignment sight shipments, the invoices related to this matter must be paid immediately.

6. All deliveries for consignment sight shipments are made, unless otherwise agreed in writing, from the warehouse. Returns by the Buyer of consignment sight shipments are at the expense and risk of the Buyer. Delivery must take place at the warehouse.

7. The use of the Buyer's own self-adhesive labels is not permitted unless expressly agreed otherwise in writing between the parties.

8. The label applied by Brinker on the Products is for the identification of the Products and must not be removed.

9. In the event that the Buyer fails to fulfill an obligation under the Agreement towards Brinker, Brinker shall be entitled to immediately reclaim the goods delivered by her. In such a case, the Buyer hereby grants Brinker permission to enter any location where the relevant goods are located. All costs associated with the reclamation of delivered goods shall be borne by the defaulting Buyer.

Article 8. Payment

1. Unless expressly agreed otherwise in writing, payment must be made within 30 days of the invoice date. With reference to paragraph 4 of this article, this period shall be considered a strict deadline. The Buyer is obliged to pay the amounts on the invoice without any deduction for discounts and is not entitled to suspend its payment obligation or to invoke set-off. The invoice will be issued by Brinker on or around the day of delivery or availability of the Products and sent to the Buyer.

2. If the Buyer fails to pay the invoice amount owed by him on time, he is immediately in default – without the need for a further notice of default – and the Buyer owes Brinker interest of 2% per month on the unpaid amount, starting from the due date. In that case, the Buyer is also obliged to reimburse Brinker for the extrajudicial collection costs reasonably incurred, with a minimum of €150.--.

3. If and to the extent that Brinker has grounds to suspect that Buyer will not be able to fulfill its obligations to Brinker in full or on time, and in the event that Buyer does not fulfill its obligations to Brinker (on time), Brinker is entitled to demand advance payment or security from Buyer for already due obligations and future obligations. Furthermore, in that case, Brinker is entitled to suspend its work and further obligations under all existing Agreements until Buyer has fulfilled its obligations and the advance payment or security requested by Brinker has been provided.

4. Any objections to invoices from Brinker must be reported in writing to Brinker at all times before the expiration of the 30-day payment term, failing which the right to do so will have lapsed for the Buyer. If a Buyer raises objections to invoices from Brinker within the aforementioned 30-day period, the prohibition on set-off and suspension mentioned in subsection 1 remains in full effect.

Article 9. Complaints

1. The Buyer is obliged to inspect the Products upon delivery – and no later than 1 week after actual receipt thereof – for conformity and defects, see also article 3.2. All complaints from the Buyer regarding the Products, regardless of their basis, must be submitted in writing to Brinker within 8 days of receipt of the Products, failing which the Buyer will not be able to assert any rights in this regard against Brinker, and all rights and powers to claim based on the defect will be forfeited.​

2. For Products that the Buyer purchases and keeps in stock, the Buyer must perform a visual inspection of the packaged Products no later than 1 week after actual receipt and a full inspection of at least 1 delivered Product. The Buyer must conduct a full inspection of the Products sold by him immediately upon unpacking or – if later – upon delivery to the end user. Any complaints from the Buyer regarding the Products that relate to defects that were or could have been discovered during the aforementioned inspections must be communicated in writing to Brinker within 8 days after those inspection moments, failing which the Buyer will have no rights in this regard against Brinker, and all rights and powers to claim based on the defect will be forfeited.

3. A bill of lading, delivery receipt, or similar document provided at the delivery of the Products is in all cases deemed to accurately represent the quantity and nature of the delivered Products, unless the Buyer immediately notifies the Seller in writing of their objection after receiving the Products.

4. If a timely submitted complaint is found to be valid by Brinker, Brinker is only obligated to repair or replace the originally delivered Products with Products of the agreed quality. Any other or further liability of Brinker is excluded in accordance with Article 11.​

5. If the Products have been used, or if defects are partly caused by actions or omissions of the Buyer or actions contrary to the Agreement, the Buyer is deemed to have accepted the Products, the possibility of submitting a complaint, as stated in points 1, 2, and 3 of this article, will lapse, and all rights and powers to claim based on the defect will be forfeited.

6. When you or your customer decide on your own initiative to have a Product modified or repaired, the warranty on the relevant Product is void.

Article 10. Force Majeure

1. The delivery period referred to in Article 5 shall in any case be extended by the period during which Brinker is prevented from fulfilling its obligations due to force majeure.​

2. Force majeure on the part of Brinker occurs if Brinker is prevented from fulfilling its obligations under this agreement or in the preparation thereof after the conclusion of the purchase agreement due to war, the threat of war, civil war, riots, disturbances, fire, water damage, flooding, strikes, company occupations, and pandemic or epidemic exclusions, import and export restrictions, government measures, defects in machinery, disruptions in the supply of energy, all both in Brinker’s business and with third parties from whom Brinker purchases Products, as well as during storage or transport, whether or not under its own management, and furthermore due to all other circumstances that arise outside the fault or risk sphere of Brinker.

3. If the delivery is delayed by more than 2 months due to force majeure, both Brinker and Buyer are entitled to consider the agreement terminated. In that case, Brinker is only entitled to reimbursement of the costs he has incurred.

4. If force majeure occurs while the agreement has already been partially executed, Brinker has the authority to demand payment for the purchase price due for the already delivered portion of the Products if the remaining delivery is delayed by more than 2 months due to force majeure, or to fully terminate the agreement with the obligation to refund what the Buyer has already paid and with the obligation of the Buyer to return what has already been delivered at their own expense and risk to Brinker.

Article 11 Liability

1. This article regulates the limitation of liability of Brinker in nature and extent in cases where it is liable to the Buyer under the agreement and these terms. Brinker is only liable if there is a breach attributable to it that has resulted in default.

2. In all cases where Brinker is in default, Brinker will be given the opportunity by the Buyer to remedy the default in the manner specified in Article 9.2, without Brinker being liable for any further (additional) compensation.

3. Except to the extent that this damage is caused by intent or gross negligence of managerial staff at Brinker, all liability of Brinker for indirect damage or consequential damage and for damage consisting of production and turnover loss, lost profits, loss of contracts or customers, personal injury, damage to third parties, and damage to other items than the Products supplied by Brinker is expressly excluded, regardless of whether this damage arises from a breach, an unlawful act, or otherwise.

4. Any further liability of Brinker is limited to a maximum amount equal to the contract value of the relevant agreement between Brinker and Buyer, or, in the case of a long-term agreement or a series of related agreements, the total value of that agreement for the calendar year preceding the damage. 5. Brinker is never liable to Buyer or otherwise for damages to third parties, regardless of whether such damages arise directly or indirectly from an event causing damage for which Brinker is or could be liable. Buyer expressly indemnifies Brinker against any claims from third parties in this regard.

5. Any claim for damages by the Buyer shall expire if the Buyer has not complied with the statutory complaint obligation or the complaint obligation of Article 9, or if and to the extent that Brinker has not been addressed in court for that damage by the Buyer no later than 1 year after the Buyer was or could have been aware of the damage.

6. The provisions of this article expressly also apply in favor of all (legal) persons that Brinker uses in the execution of the agreement. Those parties may expressly invoke this article against the Buyer where necessary.

Article 12. Intellectual Property Rights​

1. Unless expressly agreed in writing, the agreement with the Buyer is never intended to transfer any Intellectual Property Rights related to the Products or the services provided by Brinker (hereinafter: "IP Rights") to the Buyer. Brinker is and remains the sole rights holder of all IP Rights. Furthermore, the Agreement with the Buyer is never intended to transfer any other intellectual or industrial property rights of third parties to the Buyer.

2. If intellectual property rights arise during the execution of the agreement, they will exclusively belong to Brinker.

3. If Brinker develops, produces, or has developed and produced specific Products in consultation with or at the request of the Buyer, for example under a white label or private label agreement or arrangement, it is also the case that Brinker is exclusively entitled to the Intellectual Property Rights that arise or are created in relation to those Products.

Article 13. Personal Data

1. With regard to personal data within the meaning of the General Data Protection Regulation (GDPR) that is used by the Buyer or provided to Brinker in the execution of the agreement, the Buyer guarantees that it is authorized as the data controller or (sub-)processor for a third party to process that data and is authorized to make it available to Brinker.

2. The Buyer shall comply with the GDPR and all other relevant laws and regulations when processing personal data and shall indemnify Brinker for any damages arising from non-compliance with this obligation for Brinker.

3. Brinker and Buyer will document all agreements necessary for a lawful processing of personal data.

Article 14. Termination of the Agreement

1. Notwithstanding the provisions of Article 7, Brinker is entitled to terminate the purchase agreement immediately and without judicial intervention if the Buyer is declared bankrupt, in the case of provisional suspension of payments, or through seizure, placement under guardianship, or if otherwise loses the authority to dispose of his assets or parts of his assets, unless the trustee or administrator acknowledges the obligation to fulfill the obligations arising from this agreement.

2. As a result of the termination, existing claims on both sides become immediately due and payable.  The Buyer is liable for the damages incurred by Brinker as a result of such termination, including but not limited to loss of profit, transportation costs, and loss of profit from Products.

Article 15. Applicable Law

1. All disputes that may arise between Brinker and Buyer shall be submitted exclusively to the Court of Gelderland, location Arnhem, to the exclusion of all other courts.

2.  Dutch law exclusively applies to all offers made by Brinker or agreements to be concluded and to these general terms and conditions. The applicability of the Vienna Sales Convention is expressly excluded.