Article I – GENERAL
- These Standard Terms and Conditions only will apply to any and all quotations issued and agreements entered into by the User, with respect to the delivery of goods, the performance of work and all other legal relations between the User and its other party or parties. Any departure from these Standard Terms and Conditions must explicitly be agreed upon in writing. Any reference by the other party to its –standard– terms and conditions of purchase, contracting or otherwise will not be binding on the User. Any applicability of any –standard– terms and conditions used by such other party is hereby explicitly declined.
- These Standard Terms and Conditions also apply to extra work, which refers to everything that is delivered or performed during the performance of the agreement in addition to that which has been laid down in the order confirmation. In general, the other party’s order will be required in advance for the performance of extra work, but in the event that the work requires that the extra work is performed at once, the relevant order will be deemed to be included in the original order and the User may charge the other party for the costs pursuant to such order.
- To the extent that any provision in an agreement with the other party or any provision in these Standard Terms and Conditions is not legally valid, its substance and purpose will be interpreted similarly in so far as possible, but so that it is legally valid. The remainder of an agreement concluded with the User or of these Standard Terms and Conditions, one or more provisions of which are not legally valid, will remain in full force and effect.
Article II – QUOTATIONS
- All offers will be free of any obligation. Any orders, whether they are placed directly with the User or with the User’s intermediaries or representatives, may not be regarded as having been accepted until the User has confirmed them in writing.
- In departure from the provisions laid down in Article 6:225, section 2, of the new Dutch Civil Code, acceptance by the other party of the User’s offer or quotation which shows a discrepancy will not be binding on the User. In such case, the agreement will be brought about in conformity with the User’s offer or quotation, unless the other party has stated its objections, if any, to the agreement being so brought about in writing within 8 days of the date of the written confirmation.
- Any representations, drawings, descriptions and statements of measurements, colours and weights included in quotations, order confirmations, catalogues, prospectuses and the like will merely serve to provide a general description of the goods to be delivered and/or the services to be rendered, and will not at any time be binding as to details.
- Drawings, computations, photocopies, descriptions, designs, as well as any documents and appendices, pertaining to an offer will be deemed to form part of such offer and will remain the User’s property. Without explicit written permission, they may not at any time be copied, shown or issued to any third party, disclosed or used, and they must, upon the User’s request, be returned at once.
- In the event of a quotation involving multiple parts, there will be no obligation to make a partial delivery in exchange for a corresponding part of the price quoted for full performance.
- Offers will be based on performance under normal circumstances and during normal working hours.
- Unless explicitly provided otherwise in the offer, the following items do not come under fitting or under the User’s responsibility:
- Cutting and demolition
- Assistance with moving those items which cannot be moved by the employee(s) made available by the User
- Connection of the units to the grid, the gas main and/or the water supply system, as well as connection of discharge pipes
- Supply of gas, water, electricity, compressed air, etc., needed for testing and commissioning
Article III – TIME AND PLACE OF DELIVERY/TRANSFER
- “Time of delivery” refers to the time stated in the agreement within which the goods must be delivered and/or the services rendered. The agreed-upon time of delivery will commence as soon as the User has confirmed the offer in writing, has all the documents and particulars to be furnished by the other party in its possession and has received an advance or down payment, should such have been agreed upon.
- The times of delivery stated will be approximate times. Should delivery or installation not take place within the time stated, this will not at any time – even after notice of default having been issued – lead to any entitlement to damages, unless such has been stipulated by written agreement.
- The time of delivery will be extended by the time during which the other party continues to fail to fulfil any payment obligation or any other obligation from the agreement. In the event that the User incurs any damage as a consequence thereof, the other party will be obliged to compensate the User for such damage.
- In the event that the other party fails to take delivery of the goods upon expiry of the time of delivery, such other party will be in default by operation of law. In that event, the User will be entitled to store the goods or have these stored, the cost and risk of which will be borne by the other party, to make an offer in fulfilment of its obligation to deliver, to invoice the other party and – in the event that the other party fails to fulfil its payment obligation on time – to exercise its right to dissolve the agreement.
- In the event that the other party places an order on call, it must actually call and take delivery thereof within the agreed-upon call period. In the event that the other party fails to fulfil the obligations referred to above within eight days of expiry of such call term, the User will be entitled to invoice the other party or to dissolve the agreement.
- In the event that the other party has offices in one of the Benelux countries, delivery will be made to such other party’s offices. In the event that the other party does not have offices in one of the Benelux countries, delivery will be made to the User’s offices. In the event that the amount invoiced for the deliverables is less than € 1,500, the User will be entitled to charge the other party separately for delivery costs.
Article IV – MEASURES TO BE TAKEN BY THE OTHER PARTY
- The other party shall ensure that:
- the work and the facilities to be provided as per the agreement by the other party or, on the latter’s instructions, by a third party are ready on time, so that installation and/or fitting of the work contracted for by the User will not be delayed as a result thereof;
- the User’s staff is able to commence work as soon as they arrive on the installation site and are given the opportunity to carry out their work during normal working hours and, in addition, outside normal working hours in the event that the User considers it necessary to set commencement and/or end times for the work outside normal working hours and has so notified the other party in a timely fashion;
- access roads to the installation site are suitable for transport;
- upon request, there are suitable facilities on the installation site that can be locked, in order to store materials and tools, and that there is space for assembly;
- the fitters can avail themselves of the utilities, such as electricity, lighting and heating, available on site on time and free of charge; and/or
- all the required and prescribed security measures and other types of precautions have been taken and are enforced, and that the fitters can also avail themselves of the facilities required for employees by law.
- The other party will be charged separately for any additional costs caused by late or non-compliance with the conditions set in this Article.
Article V – DELIVERY; APPROVAL
- All the work carried out, or parts thereof, will be deemed to have been delivered after such work has been completed and the other party has been notified thereof. It will be deemed to have been approved, unless the other party states in writing within eight days of the said delivery that and why it does not agree to the delivery. In that case, the User will be allowed to correct any errors, defects and deviations noted.
- Any complaints about visible flaws or defects with respect to the goods delivered must be lodged with the User in writing within eight days of receipt of such goods, accurately stating the nature of and grounds for the complaint and enclosing the relevant packing lists. Once the said period has expired, the other party will be deemed to have agreed to the delivery.
- Any defects in a specific part of the deliverables do not entitle the other party to reject the entire batch delivered.
- In the event that the other party has failed to comment on the invoiced price within eight days of receipt of the invoice at the latest, the other party will be deemed to have agreed to such price.
- To the extent not provided otherwise, any and all causes of action of the other party vis-à-vis the User will lapse due to the expiry of one year after the date of delivery.
Article VI – PRICES
- To the extent not explicitly agreed otherwise, the User’s prices will at all times be ex store, ex workshop or ex works, exclusive of VAT, the costs of packaging, packing and transportation. Prices will be without any commitment as to subsequent orders and/or commissions, if any. Any and all price increases occurring after conclusion of the agreement due to increases in material prices, freight tariffs, salaries and wages, social security charges or Customs, import or export costs, turnover tax, as well as price increases due to changes in currency exchange rates or interest rates, may be passed on to the other party.
- Extra work will always be charged separately.
- Unless explicitly provided otherwise, agreed-upon prices for contracted work do not include the following: earthwork, piling, cutting and demolition or any other constructional work, or the costs of public utility connections.
Article VII – PAYMENT
- Unless otherwise agreed, payment must be made within 30 days of the date of invoice, without any right to any discount, set-off or suspension. Unless otherwise agreed, payment of the agreed-upon price for contracted work is to be made in 3 equal instalments, the first of which will be due upon the order being placed, the second one upon notification of completion of the work and the third one thirty days after such notification. Any payment made will first be applied against the costs, [then] interest and subsequently the longest outstanding invoice.
- A claim for payment of the purchase price will be immediately due and payable in the event that the other party is declared bankrupt or applies for a suspension of payments, an application for it being placed under legal guardianship has been filed, any attachment is levied on the other party’s goods or receivables, or its property, or part thereof, is placed under administration, or in the event that the other party – if it is a general partnership or private limited liability company – is being liquidated, dissolved or has another partner appointed.
- In the event that payment of an invoice is not effected within 30 days of the date thereof, the User will be entitled to charge the other party interest at a rate of 2% per month on the total amount of the invoice, starting on the date of the invoice, with part of a month being considered a full month.
- In addition to the principal and interest, the User will also be entitled to claim from the other party any and all judicial and extra-judicial collection costs caused by the non-payment. Extra-judicial collection costs payable by the other party will amount to 15% of the principal, with a minimum of € 250, plus turnover tax.
- Crediting may be undertaken by the User’s Board of Managing Directors only. Rights may be derived from crediting only if the credit note is provided with a signature of a Managing Director or a person so authorised by the Board of Managing Directors.
- In the event that the invoices are stated in foreign currency, the User will nonetheless be entitled to require payment in Dutch currency, at the conversion rate of the day on which the agreement was brought about or, at the User’s discretion, that of the date of the invoice.
Article VIII – PASSAGE OF RISK
- The risk in the goods to be delivered by the User will pass to the other party when such goods leave the User’s warehouse or are kept available in accordance with Article III, section 4, even if delivery is made thereafter. In the event that the performance of work has been agreed upon, the risk will pass upon delivery thereof.
Article IX – RETENTION OF TITLE
- As long as the User has any claim against the other party in respect of:
- the consideration for goods delivered or yet to be delivered by the User to the other party pursuant to an agreement;
- work performed or yet to be performed for the other party’s benefit pursuant to such agreement as well; and/or
- any failure by the other party to perform such agreement; title to the goods delivered will be retained by the User.
- As long as a retention of title is in effect, the other party will be prohibited – other than in the normal conduct of its business – from selling, leasing, exchanging, lending or pledging the goods in question, giving them on consignment for approval, creating a pledge or any other restricted right thereon, or remove them or have them removed from their location.
- In the event that the other party fails to fulfil any obligation from its agreement with the User, and in the event of the bankruptcy, suspension of payments, liquidation or full or partial transfer of the other party’s business or undertaking, the other party will be deemed to be in default by operation of law and the User will have the right, without any notice of default or demand being required, to repossess the goods, regardless of their location, the costs of which will be borne by the other party. For this purpose, the User will be entitled to access any premises used by the other party.
- The other party shall promptly notify any third party that wishes to levy an attachment on the goods which are subject to a retention of title, or the administrator in its suspension of payments or the trustee in its bankruptcy, in writing of the fact that the User is the owner of such goods and send the User a copy of such notification.
- Before or during performance of the agreement, in the event that the User has good reason to fear that the other party will be unable to fulfil its payment obligations towards it or to do so on time, the User will be entitled to suspend fulfilment of its obligations until the other party has, upon request, provided adequate security in this respect within a reasonable term to be set by the User for this purpose. In the event that the other party fails to provide such security, the User will have the right to dissolve the agreement.
Article X – DISSOLUTION OF THE AGREEMENT
- In the event that the other party fails to fulfil its obligations, the agreement will, with due observance of the other provisions laid down in these Standard Terms and Conditions, be dissolved upon the User’s first notification to the other party, unless the User wishes to suspend performance of the agreement in that event for a period of no more than six months, after which the dissolution of the agreement will take effect after all due to the mere passage of time, unless the agreement has been fully performed by that time and the other party has fulfilled all of its obligations on that basis.
- In the event that the User is unable to perform the agreement due to force majeure, the User will be entitled, without any legal intervention being required, to suspend performance of the agreement for a period of no more than six months or to dissolve the agreement in whole or in part, without the User being obliged to pay any damages or provide any guarantee. During suspension, the User may, and upon termination of suspension, the User will be obliged to opt for performance or for full or partial dissolution of the agreement.Force majeure will in any case include strikes, lock-outs, fire, a lack of auxiliary materials and/or equipment, raw materials, semi-finished products (due to delays at or improper performance by suppliers) or of manpower (due to, illness); all this at the User’s or its suppliers, road blocks and other impediments to traffic, riots, import and/or export restrictions, interruptions in transport, interruptions of operations, government measures and, further, in general any and all other causes, events and circumstances beyond the User’s power or control.
- In the event of both a suspension and a dissolution pursuant to the foregoing sections of this Article, the User will be entitled to require immediate payment of the value reasonably attributable to the raw materials, materials, parts and goods reserved, preprocessed and manufactured by it in respect of performance of the agreement. In the event of a dissolution pursuant to the foregoing sections of this Article, the other party will be obliged to pay the amount due pursuant to the foregoing sentence. In that event, it will be entitled to take possession of the goods embodied therein. If the other party fails to do so, the User will have the right to have these goods stored, the cost and risk of which will be borne by the other party, or to sell them, the cost of which will also be borne by the other party.
- In the event that the other party continues to fail, after having been reminded, to take delivery of the goods it purchased and/or to have the work it ordered performed, and, further, in the event that the other party unilaterally cancels the order, the other party will owe the User a penalty of 15% of the amount of the invoice.
The penalty clause laid down above will be without prejudice to the obligation to pay full alternative or supplementary damages for loss of profits, consultancy costs and other costs caused by the other party’s failure. The penalty thus payable explicitly does not replace the obligation to pay damages.
Article XI – GUARANTEE
- Unless provided otherwise, the User will be obliged to provide guarantee during 12 months after delivery of the items purchased or after completion of the work performed.
- The duty to provide guarantee means that the goods delivered or the parts thereof that turned out to be defective within the agreed-upon guarantee period due to material, constructional or manufacturing errors will be repaired or – at the User’s discretion – replaced by the User free of charge.
- The duty to provide guarantee will in any case lapse in the event that one or more of the following circumstances occur.
- The User is not notified of the unsoundness of the goods or parts delivered within 14 days of such unsoundness being noted.
- The unsoundness is the result of defects caused by normal wear and tear, unprofessional handling or unprofessional or improper maintenance, or the result of defects that occur after the introduction or implementation of changes or repairs by or on behalf of the other party or by third parties.
- The other party fails to fulfil all of its obligations vis-à-vis the User, regardless of the agreement from which such obligations ensue.
Article XII – LIABILITY
- Without prejudice to any other provisions laid down in these Standard Terms and Conditions, the User will be liable only for such direct damage of the other party as is the direct and exclusive consequence of such non-performance by the User as may be attributed to it On the understanding, however, that liability will be limited to the amount of the invoice to which the User is entitled (exclusive of VAT) with respect to the specific agreement from which liability ensues or, in the event that several invoices were sent for portions of the full sum, to the amount of the invoice to which the User is entitled (exclusive of VAT) with respect to that part of the agreement from which liability ensues. The User will not at any time be liable for any indirect damage, including consequential damage and/or damage due to delays, however caused, or for any damage caused by auxiliary persons.
- In the event and to the extent that the User fails to succeed, for whatever reason, in invoking the limitation of liability laid down in section 1 of this Article, its liability will be limited to the amount which will be paid in that case under the liability insurance taken out by the User.
- In the event and to the extent that the User also fails to succeed, for whatever reason, in invoking the limitation of liability laid down in section 2 of this Article, the User will be liable only in the event and to the extent that – considering what is customary in its sector of industry – it should have taken out insurance for such liability and this would have been possible on acceptable conditions.
- The other party shall indemnify the User for and against claims of third parties on the basis of damage incurred in connection with goods delivered by the User to the other party.
Article XIII – INFRINGEMENT OF RIGHTS OF THIRD PARTIES
- In the event that the other party orders the User to manufacture goods on the basis of drawings, designs, samples or other instructions originating with the other party, the other party shall fully guarantee that no trademark, patent, trade model or any other right of any third party will be affected as a consequence of this manufacture, delivery or installation of these goods.
- In the event that a third party objects to the manufacture, delivery or installation of the said goods on the basis of any alleged right, the User will automatically be entitled to cease the manufacture, delivery or installation at once and to require the other party to reimburse it for the costs incurred, in addition to paying damages.
Article XIV – INTELLECTUAL PROPERTY AND ANCILLARY RIGHTS
- Without prejudice to the provisions of Article II.4 the other party acknowledges that the User and its affiliated companies are the sole parties entitled to the relevant patent rights, know-how, copyright, trade name, domain name, slogans, labels affixed to items in any way whatsoever and any brands, associated rights and logos used in the running of the User’s business and/or the business of affiliated companies. The other party acknowledges that the User and its affiliated companies are the only parties entitled to the worldwide intellectual property rights and that the User is entitled to enforce these rights in and outside the region where the other party has made the goods or service available. The other party shall respect these rights. This includes the following:
- The other party is not permitted to remove, adapt and/or change the goods or any parts thereof referred to in section 1 of this Article.
- The other party shall not register or use any intellectual property rights in any way that could result in the possibility of association with the end user in the region where the goods or service is marketed.
- The other party must notify the User immediately of any violations of the User’s rights by third parties. The User may commence legal action, solely at the User’s discretion, even if that affects the other party’s interests.
- If and insofar, at the User’s sole discretion, the User or an affiliated company feels compelled to remove goods or other related components from the market, as referred to in section 1 of this Article, in order to project actual or supposed rights of third parties, the other party shall assist the User, at the User’s first request, without any liability for the User to compensate the other party.
Article XV – AUTHORITY OF STAFF
- Agreements with members of the User’s staff will not be binding on the User to the extent that they have not been confirmed by the User in writing or are not promptly performed. In this connection, all employees, with the exception of the Managing Directors, are to be regarded as members of the User’s staff.
Article XVI – DOMICILE AND DISPUTES
- For the purpose of performing the agreement between the User and the other party, the other party hereby declares that it also elects the User’s offices as its domicile. The Dutch courts will have jurisdiction with respect to any and all causes of action ensuing from agreements to which these Standard Terms and Conditions apply. Such causes of action will be lodged with a court under which the User’s offices fall, unless the dispute comes under the Sub-District Court’s subject-matter jurisdiction, in which case the Dutch law will provide which Sub-District Court will have jurisdiction.
- Without prejudice to the provisions laid down in section 1 of this Article, the User will at all times have the right to file a claim with the court of the other party’s residence.
- Any and all agreements concluded with the other party and the legal relation entered into with it will be governed by Dutch law only.
- In the event of a difference of opinion or ambiguity involving the meaning or interpretation of these Standard Terms and Conditions, the Dutch-language version thereof will be decisive.