Terms and conditions
Article 1: APPLICABILITY
1.1 These terms and conditions apply to all offers, including, for example, quotes, and all agreements that we make with other parties, hereinafter referred to as ‘the client’, subject to deviations from these terms and conditions that have been expressly made in writing.
1.2 We hereby expressly reject the General Terms and Conditions of the client, including, for example, sector-specific conditions.
Article 2: CREATION OF AN AGREEMENT
2.1 All of our offers are completely non-binding.
2.2 We have the right to retract this offer immediately after it has been accepted notwithstanding the facts that our offer includes a term for acceptance and that the offer has been accepted within that term.
2.3 The right contained in sub-paragraph 2.2, above, remains in effect for at least 2 working days following acceptance.
2.4 An agreement will be considered to have been created if our execution of an order or our order confirmation has not been rejected within 5 working days.
2.5 Unless the agreement explicitly refers to the information contained in price lists, printed materials, brochures and similar materials, we are not bound by the contents of those materials.
Article 3: DELIVERY
3.1 Stated or agreed delivery times are never to be considered as final dates. That also applies if approximate delivery times have not been stated or agreed.
3.2 If deliveries are not made on time, we must be informed of that failure in writing.
3.3 We deliver to the home/business address of the client and the cost of transportation, including packaging, loading and unloading and insurance, borne by the client, regardless of any other stipulation, including any terms and conditions of a way bill.
3.4 We have the right to deliver (and invoice) in parts.
Article 4: MISCELLANEOUS SERVICES
4.1 At the request of the client, we can install and/or endlessly vulcanise the materials delivered at the applicable rates.
4.2 At the request of the client, we can carry out repair work at the applicable rates.
4.3 The activities enumerated in sub-paragraphs 4.1 and 4.2, above, are considered as assignments that we are entitled to sub-contract to third parties. All risks associated with work carried out are borne by the client.
4.4 Our rates entitle us to compensation for working times, travel and break times, travel and housing costs and for the use of exception tools and materials.
4.5 The client will ensure that our activities can be carried out uninterrupted in time or disruption by other activities and that any additional tools, materials and power will be provided by the client at no charge.
4.6 The client will ensure that the conditions that we, our employees and/or our assistants work under comply with all legal and reasonable requirements.
Article 5: INSPECTIONS/CONTROLS AND COMPLAINTS
5.1 Upon delivery and receipt of the materials and when services are being carried out, the client will inspect and check that the delivery/service is in accordance with the agreement and, if it is not, will notify us of that fact in writing on the way bill, and no later than 8 days after delivery, stating reasons.
5.2 If the client does not inform us in writing, stating reasons, of any invisible defect in the materials or service within a reasonable time of no more than 8 working days of discovering such a defect or of reasonably having been able to discover such a defect, the client will no longer be entitled for compensation for such a defect.
5.3 The client will always give us the opportunity to remedy such a defect.
5.4 The client loses all rights that may have been applicable in respect of a defect if notification of a defect is not made within the notification period and in the way prescribed above and/or we have not been given an opportunity to remedy the defect.
5.5 Returning a delivery that we have made is only possible following our prior written consent.
Article 6: GUARANTEE
6.1 Our products and services comply with the normal trading standards, such as ISO and DIN standards (with due regard for the applicable inspection requirements as stipulated in the standards tables drawn up by the Standardisation institute).
6.2 If it is demonstrated successfully to us that that is not the case, we are entitled, at our discretion, to remedy the defect or replace the delivered materials at no charge or to credit the client for the relevant invoice amount, less a reasonable deduction for use, within a period of 6 months following delivery/carrying out the work.
6.3 Our obligations in this regard do not extend further than the guarantee provided by a supplier/manufacturer for items/semi-manufactured products/materials that we have purchased elsewhere.
6.4 The provisions of sub-paragraphs 11.6 and 11.7, below, also apply.
Article 7: PRICES
7.1 The prices stated in our offers are in Euros and ex VAT and other taxes and levies, cost of labour, transportation, insurances, rental of unusual tools and other extraordinary costs and expenses, as well as the costs of the related services enumerated in sub-paragraph 4, above. Price lists are not binding on us. Any drawings, etc., that we may make remain our property at all times.
7.2 If a change that affects our prices takes place after an agreement has come into being, such as, for example, an increase in cost prices, material prices, labour costs, social security premiums, taxes, transportation costs, insurances, fluctuations in foreign exchange rates, etc., we are entitled to adjust the price accordingly by an amount reflecting that increase but not to exceed 10%.
Article 8: PAYMENT
8.1 All payments are to be made without discounts or netting.
8.2 All payments are to be made within 30 days of the invoice date. Those payment periods are final dates.
8.3 If we have one or more claims against the client that are not the result of deliveries made or to be made or services carried out or to be carried out for the client, including any claims arising from a performance failure of a similar agreement, any payment received from the client will be applied first to the outstanding claim(s).
8.4 Without prejudice to the provisions of sub-paragraph 8.3, above, the payments made by the client will always be applied to any interest and costs owed and then to the invoices/claims that have been outstanding the longest, notwithstanding any statement by the client to the effect that the payment is in respect of another or a later invoice/claim.
8.5 In the event that the client fails to meet one or more payment obligation(s), or does not make it on time or in full, the client will, with effect from the final due date, owe us interest on all late payments at the legal interest rate increased by two, per month or part of a month, where part of a month will be considered to be a whole month. In such an event, the client will also be liable for the extra-judicial and legal collection costs. The extra-judicial costs amount to 15% of the amount of the payment in arrears or as much more as the actual amount of the costs.
8.6 We are entitled, without stating reasons, to ask for guarantees for the client’s future payment obligations for our (further) execution of the agreement.
8.7 If a dispute arises that leads to court proceedings, and we are found to be largely in the right, the client will owe us the amount of any reasonable expenses for lawyer and other costs associated with the proceedings. Therefore, if those costs exceed any award for costs granted to us in the legal judgement, the client will compensate us for those costs.
Article 9: RETENTION OF OWNERSHIP
9.1 We retain ownership of all goods delivered or to be delivered to the client as long as the client has not satisfied any claims arising from this or a similar agreement, has not paid any amounts due for work carried out or to be carried out, and as long as the client has not satisfied any of our claims arising from failures in the performance of such an agreement, including claims in respect of interest and costs.
9.2 Until such time as the client has not satisfied claims such as those enumerated above, the client may not give any goods delivered by us in pledge or in non-possessory pledge or to attach to it any other right and the client undertakes to inform third parties who may want to attach such a right to it that he is not authorized to give it in (non-possessory) pledge. Failure to do so will result in the client being guilty of misappropriation.
9.3 We retain a non-possessory pledge on goods paid for by the client and delivered by us in ownership to the client, until we have certainty concerning the disposition of all existing and future claims by us, of any nature whatsoever. With the acceptance of the applicability of these general terms and conditions, the client grants us authorization to sign any necessary deed(s) on behalf of the client (and to register them, if required). We are also entitled to ask the client to sign such a deed on our first request.
9.4 We are entitled to suspend the performance of our obligations in respect of the delivery of the goods, including, for example, documentation, until the client has paid all of our claims.
Article 10: FORCE MAJEUR
10.1 We are not required to meet any obligations if we are unable to do so due to conditions that are beyond our control and that we are not financially liable for by law, legal decision or general opinion.
10.2 If we are prevented or delayed by force majeur or other extraordinary circumstances, as enumerated below, from meeting our obligations arising from this agreement, we are entitled to execute the agreement within a reasonable time or, if execution within a reasonable time is not possible, to dissolve the agreement in whole or in part. Force majeur includes, but is not limited to, strikes, disruption in the supply of required goods or semi-manufactured products, fire and similar events that affect us or our suppliers.
10.3 In the event of force majeur, the client is not entitled to dissolve the agreement and/or to claim compensation for damages. Notwithstanding the above, if the period of the force majeur has lasted for a period of 6 months, the client does have the right to dissolve the agreement, without any right to compensation for damages.
Article 11: LIABILITY AND INDEMNIFICATION
11.1 We explicitly reject any further liability to the client for all damages, however caused, including all direct and indirect damages, such as consequential damages or business damages, with the exception of liability for damages caused by gross negligence on our part or the part of our employees and/or assistants.
11.2 Our liability for assistants does not lapse if that is not common to the agreement or if it would be unreasonable under the circumstance.
11.3 In any event, we are not liable for compensation for damages above the amount that we have received from our insurance company in respect of those damages.
11.4 If, and to the degree that we are liable, for whatever reason, such liability will always be limited to an amount that is twice the value of the goods that we have delivered or twice the value of the invoice that relates to the performance of the service, with the understanding that we are only liable to an amount of no more than E 12,500 per damage incident or related series of incidents.
11.5 Claims for damages as a result of circumstances described above must be reported to us in writing within one month of the damage having been caused or as much earlier as the client should have been able to observe the damage on pain of the lapse of any claim for compensation for damages by the client.
11.6 We are not liable for damages caused by following the instructions or directions of the client or by working with materials, employees and/or assistants of the client.
11.7 We are not liable for damages caused by changes made by the client or a third party at the direction of the client or work carried out on the goods delivered or work done by us and/or if the client has used those things for purposes other than normal (business) purposes.
11.8 The client indemnifies us from all claims from third parties for damages caused by or related to the goods delivered or work carried out by us.
Article 12: DISSOLUTION
12.1 If the client fails to meet one or more of his obligations arising from this agreement, or fails to do so on time or adequately, we are entitled, without further notification of default or the intervention of a court, and without being obligated to any compensation for damages, to suspend the delivery of the goods and/or the performance of the services and/or to dissolve with immediate effect the relevant agreement by written notification of the client, without prejudice to all other rights that we have on the basis of this agreement.
12.2 In addition to the other rights that we have as a result of this agreement, we are entitled at all times and without further notification of default or the intervention of a court and without owing any compensation for damages to the client, to dissolve the agreement with immediate effect by written notification to the client if the client fails to pay his due obligations, becomes insolvent, applies for bankruptcy or is put into receivership, if suspension of payments is applied for or if the client ceases or transfers business activities or substantially changes the nature of those activities.
Article 13: APPLICABLE LAW AND DISPUTES
13.1 The law of the Netherlands is solely applicable on all of our agreements.
13.2 If a dispute falls under the authority of a District Court by legal regulation, the District Court of Alkmaar is solely competent.
13.3 The provisions of sub-paragraph 13.2 do not detract from our right to bring the dispute to the District Court that is competent according to the normal rules of competence.
Article 14: CONCLUSION
14.1 Should one of the provisions of these terms and conditions be invalid or be nullified, it will have no effect of the validity of the other provisions. In that event, a provision should be agreed to replace the invalid and/or nullified provision that most closely approaches the intention and the spirit of the invalid and/or nullified provision.
14.2 We are always entitled to amend these terms and conditions in the future.