- These conditions apply to every offer, quotation and agreement between itemlost, hereinafter referred to as: “User” of these general terms and conditions, and you the Counterparty to which the User has declared these conditions applicable, unless and insofar as not expressly otherwise agreed in writing.
- The present conditions also apply to agreements with the User, for the implementation of which the User must involve third parties.
- These general terms and conditions also apply to the employees of the User and its management.
- The Counterparty may not transfer the rights and obligations arising from an agreement to third parties in any way whatsoever without User’s written permission. User will not withhold this permission on unreasonable grounds.
- The applicability of any purchase or other conditions of the Counterparty is expressly rejected.
- Should one or more of the provisions of the Terms and Conditions at any time become partially or wholly invalid or unenforceable, the remainder of the provisions shall remain in full effect. In case of invalid or unenforceable provisions, the parties shall enter consultations with the aim of agreeing an alternative valid and enforceable provision, whereby the scope of the agreement is maintained.
- If there is uncertainty about the interpretation of one or more provisions of these general terms and conditions, then the explanation must be given "in the spirit" of these provisions.
- If a situation arises between the parties that is not regulated in these general terms and conditions, this situation must be assessed in the spirit of these general terms and conditions.
- If the User does not always require strict compliance with these conditions, does this not mean that the provisions thereof do not apply, or that the User would lose the right to demand strict compliance with the provisions of these conditions in other cases.
Quotations and offers
- All offers and quotations provided by the User are without obligation, unless the offer contains a term for acceptance. A quotation or offer expires if the product to which the quotation or offer relates has become unavailable in the meantime.
- The User cannot be held to his quotes or offers if the Counterparty can reasonably understand that the quotes or offers, or any part thereof, contain an obvious mistake or clerical error.
- The prices stated in a quotation or offer are exclusive of VAT and other government-imposed levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administrative costs, unless stated otherwise.
- If the acceptance deviates (whether or not on minor points) from the offer included in the quotation or offer, the User is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless the User indicates otherwise.
- A composite quotation does not oblige the User to perform part of the assignment against a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.
Contract duration; delivery terms, implementation and amendment of the agreement
- The agreement between the User and the Counterparty is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties explicitly agree otherwise in writing.
- If a period has been agreed or specified for the completion of certain activities or for the delivery of certain goods, will this never be fatal. In the event of excess of the delivery time given the User must first be given written notice of default. User must be offered a reasonable period to still execute the agreement.
- If the User requires information from the Counterparty for the execution of the agreement, the execution period will commence no earlier than after the Counterparty has provided it correctly and completely to the User.
- Delivery takes place ex User's company. The Counterparty is obliged to take delivery of the goods when they are made available to it. If the Counterparty refuses to take delivery or is negligent in providing information or instructions that are necessary for the delivery, the User is entitled to store the goods at the Counterparty's expense and risk.
- User has the right to have certain work done by third parties.
- User is entitled to execute the agreement in different phases and to invoice the thus executed part separately.
- If the agreement is executed in phases, the User can suspend the execution of those parts that belong to a subsequent phase until the Counterparty has approved the results of the preceding phase in writing.
- If during the execution of the agreement it appears that for a proper implementation it is necessary to change or supplement it, then the parties will adjust the agreement in time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or instruction of the Counterparty, of the competent authorities, etc., is changed and the agreement is thereby changed in qualitative and / or quantitative terms, this may also have consequences for what was originally agreed. As a result, the originally agreed amount can be increased or decreased. The User will make a quotation in advance as much as possible. By an amendment of the agreement, the originally specified term of execution can also be changed. The Counterparty accepts the possibility of changing the agreement, including the change in price and term of execution.
- If the agreement is changed, including a supplement, then the User is entitled to only implement it after approval has been given by the person authorized within the User and the Counterparty has agreed to the price and other conditions stated for the execution, including the time to be determined at that time at which it will be implemented. The non-execution or non-immediate execution of the amended agreement does not constitute a breach of contract on the part of the User, nor is it grounds for the Counterparty to terminate the agreement. Without failing to do so, the User may refuse a request for amendment of the agreement, if this could have qualitative and / or quantitative consequences, for example for the work to be performed or the goods to be delivered in that context.
- If the Counterparty fails to properly comply with what it is obliged to the User, the Counterparty is liable for all damage (including costs) on the part of the User that arises directly or indirectly.
- If the User agrees on a fixed price with the Counterparty, the User is nevertheless entitled at all times to increase this price without the Counterparty being entitled to dissolve the agreement for that reason, if the increase in price results from a power or obligation under the law or regulation or its cause is due to an increase in the price of raw materials, wages, etc. or on other grounds that were not reasonably foreseeable when entering into the agreement.
- If the price increase, other than as a result of an amendment to the agreement, amounts to more than 10% and takes place within three months after the conclusion of the agreement, then only the Counterparty that is entitled to title 5 section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by means of a written statement, unless User is still willing to execute the agreement on the basis of what was originally agreed, or if the price increase arises from a power or an obligation resting on User under the law or if it is stipulated that delivery will take place more than three months after the purchase.
Suspension, dissolution and premature termination of the agreement
- The user is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if:
- the Counterparty does not, not fully or timely fulfill the obligations under the agreement;
- after the conclusion of the agreement, the circumstances brought to the user's attention give good grounds to fear that the Counterparty will not fulfill its obligations; and / or
- the Counterparty was requested when entering into the agreement to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient.
- If, due to the delay on the part of the Counterparty, the User can no longer be required to fulfill the agreement under the originally agreed conditions, the User is entitled to dissolve the agreement.
- Furthermore, the User is authorized to dissolve the agreement if circumstances arise that are of such nature that fulfillment of the agreement is impossible or if other circumstances arise that are of such nature that the unaltered maintenance of the agreement cannot reasonably be required.
- If the agreement is dissolved, the User's claims against the Counterparty is immediately due and payable. If User suspends fulfillment of the obligations, he retains his rights under the law and agreement.
- If the User proceeds to suspension or dissolution, he is in no way obliged to pay compensation for damage and costs in any way.
- If the dissolution is attributable to the Counterparty, the User is entitled to compensation for the damage, including the costs, which arise directly and indirectly.
- If the Counterparty fails to fulfill its obligations under the agreement and this non-fulfillment justifies termination, the User is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation, while the Counterparty, on account of non-performance, however is obliged to compensate.
- If the agreement is terminated prematurely by the User, the User will arrange for the transfer of work still to be performed to third parties in consultation with the Counterparty. This unless the cancellation is attributable to the Counterparty. If the transfer of the work involves additional costs for the User, these will be charged to the Counterparty. The Counterparty is obliged to pay these costs within the aforementioned term, unless the User indicates otherwise.
- In case of liquidation, (application for) suspension of payments or bankruptcy, seizure - if and insofar as the attachment has not been lifted within three months - will be charged to the Counterparty, debt restructuring or any other circumstance whereby the Counterparty will no longer freely dispose of his assets, the User is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on his part to pay any compensation. The User's claims against the Counterparty are in that case immediately due and payable.
- If the Counterparty cancels a placed order (complete or partial), the items ordered or prepared for it, plus any delivery and delivery costs thereof and the working time reserved for the execution of the agreement, will be fully charged to the Counterparty.
- User is not obliged to fulfill any obligation to the Counterparty if he is hindered to do so as a result of a circumstance that is not due to his fault, and is not at his expense under the law, a legal act or prevailing views.
- Force majeure in these general terms and conditions means, in addition to what is understood in this respect in law and case law, all external causes, foreseen or unforeseen, beyond User’s control, but as a result of which the User is unable to fulfill its obligations. This includes strikes in the company of the User or of third parties. User also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after User should have fulfilled his obligation.
- User can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, then each of the parties is entitled to dissolve the agreement, without obligation to pay compensation to the Counterparty.
- Insofar as at the time of the occurrence of force majeure the User has partially fulfilled his obligations under the agreement or will be able to fulfill them, and the part fulfilled or to be fulfilled has independent value, the User is entitled to the part already fulfilled or to be fulfilled to be invoiced separately. The Counterparty is obliged to pay this invoice as if it were a separate agreement.
Payment and collection costs
- Payment must be made within 14 days of the invoice date, in a manner to be indicated by the User in the currency in which the invoice was made, unless otherwise indicated in writing by the User. User is entitled to invoice periodically.
- If the Counterparty fails to pay an invoice on time, the Counterparty will be in default by operation of law. The Counterparty will then owe an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest will be due. The interest on the due and payable amount will be calculated from the moment that the Counterparty is in default until the moment of payment of the full amount owed.
- The User is entitled to have the payment made by the Counterparty first applied by reduction of the costs, then to reduce the interest owed, and finally towards payment of the principal sum and current interest.
- The User can, without being in default, refuse an offer for payment if the Counterparty designates a different order for the allocation of the payment. User can refuse full payment of the principal sum, if the vacant and accrued interest and collection costs are not also paid.
- The Counterparty is never entitled to set off the amount it owes to the User.
- Objections to the amount of an invoice do not suspend the payment obligation. Neither is the Counterparty who is not entitled to appeal to Section 6.5.3 (Articles 231 to 247, Book 6 of the Dutch Civil Code) to suspend payment of an invoice for any other reason.
- If the Counterparty is in default or omission in the (timely) fulfillment of its obligations, all reasonable costs incurred in obtaining payment out of court will be borne by the Counterparty. The extrajudicial costs are calculated on the basis of what is customary in Dutch debt collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the User has incurred higher collection costs that were reasonably necessary, the costs actually incurred are eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Counterparty. The Counterparty will also owe interest on the collection costs owed.
Retention of title
- All goods delivered by the User under the agreement remain the property of the User until the Counterparty has duly complied with all its obligations with the User.
- Goods delivered by the User that fall under the retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The Counterparty is not authorized to pledge or encumber in any other way the goods that fall under the retention of title.
- The Counterparty must always make every reasonable effort to secure the Seller’s property rights.
- If third parties wish to create or enforce any rights on goods delivered subject to retention of title the Buyer is required to notify the Seller immediately.
- The Counterparty undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection at the User's request. In the event of any payment of the insurance, the User is entitled to these tokens. To the extent necessary, the Counterparty undertakes vis-à-vis the User in advance to cooperate with everything that may prove to be necessary or desirable in that context.
- In case User wishes to exercise his property rights indicated in this article, the Counterparty gives unconditional and irrevocable permission in advance to User and third parties to be designated by User to enter all those places where User's property is located to repossess such properties.
Guarantees, research, limitation period
- The goods to be delivered by the User meet the usual requirements and standards that can reasonably be set at the time of delivery and for which they are intended for normal use in the Netherlands. The guarantee mentioned in this article applies to items that are intended for use within the Netherlands. When used outside the Netherlands, the Counterparty must verify whether the use thereof is suitable for use there and meet the conditions set for it. In that case, the User may impose other guarantees and other conditions with regard to the goods to be delivered or the work to be performed.
- The guarantee referred to in paragraph 1 of this article applies for a period of 2 years after delivery, unless the nature of the delivery dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the User concerns an item that was produced by a third party, then the guarantee is limited to that provided by the producer of the item, unless stated otherwise.
- Every form of guarantee shall be voided if a defect has arisen as a result of or resulting from improper use of it or use after the expiry date, incorrect storage or maintenance thereof by the Counterparty and / or by third parties, without the User's written permission, the Counterparty or third parties have made changes to the item or have tried to make other items, other items have been confirmed that should not be attached to them or if they have been processed or processed in a manner other than the prescribed manner. The Counterparty is also not entitled to a guarantee if the defect is caused by or is the result of circumstances over which the User cannot influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etc.
- The Counterparty is obliged to check the delivered goods, or must have them checked, immediately when the goods are made available to him or the relevant work has been carried out. In doing so, the Counterparty must check whether the quality and / or quantity of the delivered goods corresponds with what has been agreed and meets the requirements that the parties have agreed in this regard. Any visible defects must be reported to the User in writing within seven days of delivery. Any invisible defects must be reported to the User in writing immediately, but in any case no later than fourteen days after discovery. The report must contain a description of the defect as detailed as possible, so that the User is able to respond adequately. The Counterparty must give the User the opportunity to investigate a complaint or have it investigated.
- If the Counterparty complains in time, this does not suspend its payment obligation. In that case, the Counterparty will also be obliged to purchase and pay for the items otherwise ordered.
- If a defect is reported later, the Counterparty will no longer be entitled to repair, replacement or compensation.
- If it is established that a good is defective and a complaint has been made in this regard in time, the User will notify the defective good within a reasonable period of time after receipt thereof or, if return is not reasonably possible, written notification of the defect by the Counterparty, at the User's choice, replace or take care of repair thereof or pay replacement compensation to the Counterparty. In the event of replacement, the Counterparty is obliged to return the replaced item to the User and to transfer ownership thereof to the User, unless the User indicates otherwise.
- If it is established that a complaint is unfounded, then the costs resulting from this, including the investigation costs, which fell on the part of the User, will be borne in full by the Counterparty.
- On expiry of the guarantee period, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Counterparty.
- Contrary to the statutory limitation periods, the limitation period of all claims and defenses against the User and the third parties involved by the User in the performance of an agreement is one year.
- In the event that the User is liable, this liability will be limited to the provisions laid down in this Article.
- The User is not liable for damage, of whatever nature, caused by the User assuming incorrect and / or incomplete information provided by or on behalf of the Counterparty.
- If the User is liable for any damage, the User's liability is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates.
- The liability of the User is in any case always limited to the amount of the payment from his insurer, if applicable.
- The User is only liable for direct damage
- Direct damage is exclusively understood to mean the reasonable costs to determine the cause and the extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, the reasonable costs incurred for deficient performanceof User regarding the agreement, as far as these can be attributed to the User and the reasonable costs incurred to prevent or limit damage, if the Counterparty demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions.
- The user is never liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption.
- The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of the User or his managerial subordinates.
The risk of loss, damage or depreciation is transferred to the Counterparty when goods are placed under the control of the Counterparty.
- The Counterparty indemnifies the User against any claims by third parties who suffer damage in connection with the execution of the agreement and the cause of which is attributable to others than the User.
- If the User should be held liable by third parties for that reason, the Counterparty is obliged to assist the User both in and out of court and to immediately do everything that may be expected of him in that case. If the Counterparty fails to take adequate measures, the User is entitled, without notice of default, to do so itself. All costs and damage on the part of the User and third parties that arise as a result, will be fully for the account and risk of the Counterparty.
- User reserves the rights and powers that are vested in it under the Copyright Act and other intellectual laws and regulations. User has the right to use the knowledge gained by the execution of an agreement for other purposes as well, insofar as no strictly confidential information of the Counterparty is brought to the notice of third parties.
Applicable law and disputes
- All legal relationships to which the User is a party are exclusively governed by Dutch law, even if an obligation is fully or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
- The Court in the User’s place of business has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, the User has the right to submit the dispute to a court that has jurisdiction according to the law.
- The parties will only appeal to the court after they have made every effort to settle a dispute by mutual agreement.
Location and change of conditions
- These conditions have been filed with the Chamber of Commerce The Hague.
- The most recently filed version or the version that applied at the time of the establishment of the legal relationship with the User is always applicable.
- The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.