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Article 1 General
1. These General Terms and Conditions are applicable to every offer, quotation and agreement between Van Lent Systems B.V., hereinafter referred to as the ‘User’, and a Counterparty for which the User has declared these General Terms and Conditions to be applicable, in so far as the parties have not explicitly agreed in writing to depart from these General Terms and Conditions.
2. These General Terms and Conditions are also applicable to agreements with the User that require the involvement of third parties for the User’s performance thereof.
3. These General Terms and Conditions have also been drawn up for the employees of the User and its Management Board.
4. The applicability of any of the Counterparty’s purchase or other terms and conditions is expressly rejected.
5. Should one or more articles of these General Terms and Conditions be declared fully or partly void or voided at any time then the other stipulations of these General Terms and Conditions shall remain unimpaired. The User and Counterparty shall then enter into consultations to reach agreement on new provisions to replace the void or voided provisions that take maximum possible account of the purpose and purport of the original provisions.
6. Should there be any uncertainty about the interpretation of one or more provisions of these General Terms and Conditions then those provisions shall be interpreted in the spirit of the relevant provisions.
7. Should a situation occur between the parties that is not provided for in these General Terms and Conditions then the situation shall be appraised in accordance with the spirit of these General Terms and Conditions.
8. If the User does not always require strict compliance with these General Terms and Conditions then this does not imply that the provisions thereof are not applicable, or that the User would lose any right to require strict compliance with the provisions of these General Terms and Conditions in other situations.
Article 2 Quotations and offers
1. All quotations and offers of the User are without obligation, unless the quotation specifies an acceptance term. A quotation or offer lapses in the event that the product to which the quotation or offer relates is no longer available the meantime.
2. The User cannot be bound by quotations and offers when the Counterparty can reasonably understand that the relevant quotations, offers or parts thereof contain an obvious mistake or error.
3. The prices stated in quotations and offers are inclusive of VAT and other government levies, as well as other costs incurred in the context of the agreement, including travel and accommodation expenses, and shipping and administration costs, unless stated otherwise.
4. The User is not bound by the acceptance of a quotation or offer when the acceptance does not fully coincide with the quotation or offer. The agreement is not concluded when the acceptance does not coincide, unless the User specifies otherwise.
5. A combined quotation does not oblige the User to perform part of the order for a proportional part of the specified price. Offers and quotations are not automatically applicable to future orders.
Article 3 Term of agreement, delivery period, performance and amendment of agreement, price increases
1. The agreement between the User and the Counterparty is concluded for an indefinite period unless otherwise dictated by the nature of the agreement, or unless the parties expressly agree otherwise in writing.
2. Any period agreed or specified for the completion of specific work or the delivery/provision of specific goods/services is never a deadline. Consequently, the Counterparty should issue the User written notice of default when a period is exceeded. The User should then be offered a reasonable period of time to fulfil the agreement.
3. The User is entitled to have specific work carried out by third parties.
4. The User is entitled to perform the agreement in a number of phases and to submit separate invoices for each completed phase.
5. When the agreement is performed in phases then the User may suspend work for a following phase until the Counterparty has issued written acceptance of the results from the previous phase.
6. When the User requires information from the Counterparty for the performance of the agreement then the period of the performance of the agreement does not commence until the time that the Counterparty has furnished this accurate and complete information to the User.
7. When it transpires during the performance of the agreement that amendments and/or supplements to the agreement will be required for its proper performance then the parties shall enter into timely consultations on adjustments of the agreement. Any amendments to the nature, scope or content of the agreement, either on the Counterparty’s request or on the instructions of the competent authorities or otherwise, that result in the qualitative and/or quantitative modification of the agreement may have consequences for the original agreements between the parties. This can in turn result an increase or reduction of the amount that was originally agreed. The User will issue an advance estimate for this far as this is possible. An amendment to the agreement can result in an adjustment of the period originally specified for its performance. The Counterparty accepts the possibility of amendments to the agreement, including to the contract price and period of the performance of the agreement.
8. The User is entitled to proceed to the performance of any amendment or supplement to the agreement only once the competent persons of the User and Counterparty have approved the price and other conditions relating to the performance, inclusive of agreement on the time at which those amendments or supplements will be performed. The non-performance or non-immediate performance of the amended agreement does not constitute a breach on the part of the User and does not give rise to any grounds for the Counterparty to give notice of the termination of the agreement.
9. The User can, without entering into default, refuse a request for an amendment of the agreement when this would have qualitative and/or quantitative consequences for, for example, the work to be carried out or the goods/services to be delivered/provided within that context.
10. Should the Counterparty fail to appropriately fulfil its obligations towards the User then the Counterparty shall be liable for all resultant direct and indirect loss (including costs) incurred by the User.
11. The User is nevertheless entitled to increase a specific price agreed on the conclusion of the agreement, including when the price is not subject to adjustment, in the following circumstances.
– when the price increase is due to an amendment to the agreement;
– when the price increase arises from a power accruing to the User or from an obligation to which the User is subject pursuant to the law;
– in other cases, subject to the proviso that the Counterparty that is not acting in the pursuit of a profession or business is entitled to terminate the agreement by a written declaration when the price increases by more than 10% within three months after the conclusion of the agreement, unless the User is still prepared to perform the agreement on the basis of the original price or it has been stipulated that delivery shall take place more than three months after the purchase.
Article 4 Suspension, dissolution and early termination of the agreement
1. The User is entitled to suspend the fulfilment of its obligations or to dissolve the agreement immediately and with immediate effect in the event that:
– the Counterparty does not fulfil its obligations arising from the agreement or does not fulfil its obligations in full or in time;
– after the conclusion of the agreement the User takes cognizance of circumstances that give good reasons for concern that the Counterparty will not fulfil its obligations;
– at the time of the conclusion of the agreement the Counterparty was requested to furnish security for the fulfilment of its obligations arising from the agreement but has failed to furnish this security or has not furnished adequate security;
– due to delays on the part of the Counterparty the User can no longer be required to fulfil the agreement under the conditions that were originally agreed, as a result of which the User is entitled to dissolve the agreement;
– circumstances arise of a nature such that the fulfilment of the agreement is impossible or that the User cannot reasonably be required to fulfil the agreement in its original form.
2. When the dissolution is attributable to the Counterparty then the User is entitled to compensation of the resultant direct and indirect loss, including the costs.
3. On the dissolution of the agreement the receivables due to the User from the Counterparty become immediately payable. The User’s suspension of the fulfilment of its obligations is without prejudice to its claims pursuant to the law and the agreement.
4. The User’s decision to suspend or dissolve the agreement on the grounds referred to in this Article does not impose any obligation on the User whatsoever to pay compensation for any resultant loss or costs incurred in any way whatsoever, or to pay damages, whilst the Counterparty is, by reason of failure, under the obligation to pay compensation or damages.
5. On the User’s early termination of the agreement the User shall, in consultation with the Counterparty, arrange for the transfer of work still to be carried out to third parties. This unless the termination is attributable to the Counterparty. The transfer costs will be charged to the Counterparty unless the early termination is attributable to the User. The User shall give the Counterparty advance notification of the amount of these costs for as far as is possible. The Counterparty is obliged to settle these costs within the period stipulated by the User, unless the User specifies otherwise.
6. The User is entitled to terminate the agreement immediately and with immediate effect, or to cancel the order or agreement, without any obligation to pay any compensation or damages, in the event of the Counterparty’s liquidation, the petitioning for or granting of the Counterparty’s suspension of payments or bankruptcy, the attachment of the Counterparty’s assets when and to the extent that those assets are not released within three months, the rescheduling of the Counterparty’s debts, or any other circumstances that result in the Counterparty no longer having the free disposal of its assets. The receivables due to the User from the Counterparty then become immediately payable.
7. On the Counterparty’s cancellation of an order it has placed, either in full or in part, then the Counterparty shall be charged, in full, for goods ordered or completed for its order, plus any disposal and delivery costs where relevant, and the costs of the working time reserved for the performance of the agreement.
Article 5 Force majeure
1. The User is not obliged to fulfil any obligation towards the Counterparty when it is impeded by a circumstance that cannot be imputed to its fault or for which it is not held responsible pursuant to the law, a legal act or generally accepted practice.
2. Within the context of these General Terms and Conditions ‘force majeure’ is understood, alongside the meanings assigned to the term by the law and case law, as all foreseen and unforeseen external causes over which User has no control but which nevertheless prevent the User from fulfilling its obligations. The User is also entitled to invoke force majeure when the circumstances that prevent the User from performing or continuing to perform the agreement arose after the User should have fulfilled its obligation.
3. The User can suspend the fulfilment of the obligations arising from the agreement during the period of the force majeure event. When this period continues for longer than two months then each of the parties is entitled to dissolve the agreement, without any obligation to compensate the other party for loss.
4. When the User had partially fulfilled its obligations arising from the agreement at the time that the force majeure event occurred, or will be able to fulfil these obligations, and that fulfilled part or part to be fulfilled can be accorded independent value, then the User is entitled to issue a separate invoice for the parts that it has fulfilled or will fulfil. The Counterparty is obliged to pay this invoice as though it was for a separate agreement.
Article 6 Payment and collection costs
1. All payments shall be settled within 14 days after the invoice date, in the manner specified by the User and in the currency in which the invoice was issued, unless otherwise stated by the User in writing. The User is entitled to issue periodic invoices.
2. On the Counterparty’s failure to settle an invoice in time then the Counterparty is in default by operation of law. The Counterparty will then owe interest. The interest on consumer purchases is equal to the statutory interest. In other cases, the Counterparty owes interest of 1% a month, unless the statutory interest is higher, in which case the statutory interest is due. The interest on the outstanding amount will be calculated from the time at which the Counterparty is in default until the time at which the full amount due is settled.
3. The User is entitled to apply the payments made by the Counterparty firstly to settle the costs, then the interest that has fallen due, and finally the principal and the current interest.
4. The User may, without being in default as a result, refuse an offer for payment if the Counterparty indicates an alternative sequence for the application of the payment. The User can refuse full payment of the principal when the interest that has fallen due, the current interest and the collection costs are not paid at the same time.
5. Objection to an invoice amount does not suspend the payment obligation.
6. Should the Counterparty be in default or it fails to fulfil its obligations or fails to fulfil them in time then the Counterparty shall bear all reasonable costs incurred in obtaining an out-of-court settlement. The extrajudicial costs shall be calculated in accordance with the customary method adopted in current Dutch collection practice at that time, currently the calculation method pursuant to the Voorwerk II report. However, any reasonably necessary additional collection costs incurred by the User also qualify for reimbursement. Any judicial and execution costs, where relevant, shall also be recovered from the Counterparty. The Counterparty is also liable for the interest on the collection costs due.
Article 7 Retention of title
1. The User retains the title to all goods delivered by the User within the context of the agreement until the Counterparty has properly fulfilled all its obligations arising from agreements concluded with the User.
2. Goods delivered by the User that fall within the scope of the retention of title pursuant to the provisions of paragraph 1 may not be resold and may never be used as means of payment. The Counterparty is not entitled to pledge or otherwise encumber goods falling within the scope of the retention of title.
3. The Counterparty shall always do everything that may reasonably be expected of it to safeguard the User’s right of ownership.
4. The Counterparty is required to inform the User immediately in the event that third parties attach goods delivered under retention of title or wish to establish or enforce rights to those goods.
5. The Counterparty undertakes to take out and maintain insurance of goods delivered under retention of title against fire, explosion and water damage, as well as against theft, and to submit the insurance policy for inspection promptly when so requested by the User. The User is entitled to any amount paid out under the insurance. The Counterparty undertakes, in advance, to cooperate with the User in taking every action that may be necessary or appears desirable within this context.
6. The Counterparty, in the event that the User wishes to exercise its right of ownership, grants its advance unconditional and irrevocable permission to the User and to third parties designated by the User to enter all areas where the User’s property is located and to take back those goods.
Article 8 Warranties, inspections and claims
1. The goods to be delivered by the User comply with the customary requirements and standards that may reasonably be imposed on them at the time of delivery when they are destined for normal use in the Netherlands. The warranty referred to in this Article is applicable to goods destined for use in the Netherlands. The Counterparty needs to verify that goods to be used outside the Netherlands are suitable for use at their destination and meet the conditions imposed on them at that destination. When this is the case, the User may specify other warranty and other conditions for the goods to be delivered or work to be carried out.
2. The warranty referred to in paragraph 1 of this Article extends to a period of 2 years after delivery unless the nature of the delivered goods requires otherwise or is otherwise agreed. A warranty that the User issues for goods produced by a third party is limited to the cover provided by the manufacturer’s warranty for those goods, unless stated otherwise. After the expiry of the warranty period the Counterparty will be charged all costs for repair or replacement, inclusive of administrative, shipment and call-out charges.
3. Every form of warranty is voided when a defect was caused by or due to inexpert or improper use thereof, use after the use before date, or the incorrect storage or maintenance by the Counterparty and/or third party when the Counterparty and/or third parties, without written consent from the User, have modified or attempted to modify the goods, attached other articles to the goods that should not have been attached to the goods or machined or worked these in a manner other than the prescribed manner. Nor can the Counterparty submit claims under the warranty for defects caused by circumstances over which the User has no control, such as weather conditions (including, but not limited to, extreme rainfall and temperatures), etc.
4. The Counterparty is required to inspect deliveries or to arrange for their inspection immediately they are either made available to the Counterparty or the relevant work has been carried out. The Counterparty shall inspect the delivery to verify that its quality and/or quantity comply with the agreements between the parties, including the requisite requirements to be met. The User must receive written notification of any shortcomings within two months of their discovery. This notification shall contain as detailed a description of the shortcoming as possible to enable the User to respond in an adequate manner. The Counterparty shall offer the User the opportunity to investigate a complaint or have the complaint investigated.
5. A timely complaint lodged by the Counterparty does not suspend its payment obligation. The Counterparty will then also continue to be obliged to take receipt of and pay for other ordered deliveries unless these cannot be accorded independent value.
6. In the event that the Counterparty gives late notification of a shortcoming then it is no longer entitled to repairs, replacement or compensation, unless a longer period arises from the nature of the goods or other circumstances.
7. When it has been established that a delivery is defective and timely notification of the complaint was given then the User shall, within a reasonable period after the return of the delivery or, when the return of the delivery is not reasonably feasible, written notification of the defect from the Counterparty, and at the User’s discretion, replace or provide for the repair of the delivery or make a compensatory payment. In the event of replacement, the Counterparty is obliged to return the original delivery and to transfer the title to the User unless stated otherwise by the User.
8. When it transpires that a complaint is unfounded then all costs incurred by the User, inclusive of the costs of the investigation, shall be charged to the Counterparty.
Article 9 Liability
1. Any liability of the User is limited to the liability laid down in the provisions of this Article.
2. The User is not liable for any loss of any nature whatsoever resulting from the User’s use of inaccurate and/or incomplete information that was provided by or on behalf of the Counterparty.
3. The User is liable solely for direct loss.
4. Direct loss is understood solely as:
– the reasonable costs incurred in determining the cause and amount of the loss, for so far as the determination relates to loss in the sense of these General Terms and Conditions;
– the reasonable costs incurred in bringing the defective performance of the User into compliance with the agreement, for so as far as this can be attributed to the User;
– the reasonable costs incurred in the prevention or limitation of loss, for so far as the Counterparty demonstrates that these costs have resulted in the limitation of direct loss as referred to in these General Terms and Conditions.
5. The User is never liable for indirect loss, including consequential loss, loss of profit, lost savings and loss due to business or other forms of interruption. With consumer purchases this limitation does not extend beyond the limitation allowed pursuant to Article 7:24 (2) of the Dutch Civil Code.
6. Any liability of the User for any form of loss is limited to a total of a maximum of three times the invoice value of the order or that part of the order to which the liability relates.
7. The liability of the User is in all cases limited to the amount paid out by its insurer.
8. The limitations of the liability laid down in this Article are not applicable when the loss is attributable to gross negligence or intent on the part of the User or its supervisory staff.
Article 10 Time limit
1. In derogation from the statutory time limits, the time limit of all claims and defences against the User and third parties involved in the performance of an agreement is set at one year.
2. The provisions of paragraph 1 are not applicable to legal claims and defences based on facts that would support the allegation that the delivered goods did not comply with the agreement. Claims and defences of this nature expire two years after the Counterparty has notified the User of such a non-conformance.
Article 11 Risk transfer
The risk of loss, damage or decrease in value is transferred to the Counterparty at the time that the goods are brought under the Counterparty’s control.
Article 12 Indemnification
1. The Counterparty indemnifies the User against any claims from third parties that incur loss as a result of the performance of the agreement for reasons other than reasons that can be attributed to the User.
2. Should third parties submit a claim to the User on that account then the Counterpart is required to assist the User in legal and other proceedings and to immediately do everything that it may be expected to do in that situation. Should the Counterparty continue to fail to take adequate measures then the User is entitled, without notice of default being required, to proceed to take those measures itself. All resultant costs and loss incurred by the User and third parties shall then be at the risk and expense of the Counterparty.
Article 13 Intellectual property rights
1. The User reserves the rights and powers that accrue to it pursuant to the Copyright Act and other intellectual property legislation and regulations. The User is entitled to use the knowledge that it has acquired during the performance of an agreement for other purposes, provided that no strictly confidential information of the Counterparty is disclosed to third parties.
Article 14 Applicable law and disputes
1. All legal relationships to which the User is a party are governed exclusively by Netherlands law, inclusive of situations in which an obligation is fulfilled in its entirety or in part outside the Netherlands or in which the party involved in the legal relationship is domiciled outside the Netherlands. The application of the Vienna Sales Treaty is expressly excluded.
2. The parties shall petition the court only once they have made every effort to settle a dispute in mutual consultation.
Article 15 Location and amendments to the General Terms and Conditions
1. These General Terms and Conditions have been filed with the Chamber of Commerce for ‘s Hertogenbosch.
2. The last version that was filed or the version applicable at the time of the establishment of the legal relationship with the User is always applicable.
3. The Dutch text of the General Terms and Conditions is always determinative for their interpretation.