Article 1. General
1.1 These terms and conditions apply to every offer, quotation, or agreement between Projectmanagement B.V., hereinafter referred to as "User," and a counterparty to which User has declared these terms and conditions applicable, insofar as neither party has expressly deviated from these terms and conditions.
1.2 These terms and conditions also apply to agreements with User for the execution of which User must engage third parties.
1.3 The general terms and conditions are also written for the employees of User and its management.
1.4 The applicability of any purchasing or other terms and conditions of the counterparty is expressly rejected.
1.5 If one or more provisions in these terms and conditions are at any time wholly or partially invalid or should be annulled, the remainder of these
general terms and conditions shall remain fully applicable. The User and the counterparty shall then enter into consultation in order to agree on new provisions to replace the void or annulled provisions, whereby the purpose and intent of the original provisions shall be observed as much as possible.
1.6 If ambiguity arises regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation shall be made "in the spirit" of these provisions.
1.7 If a situation arises between the parties that is not regulated in these general terms and conditions, this situation shall be assessed in the spirit of these general terms and conditions.
1.8 If the User does not always demand strict compliance with these terms and conditions, this does not mean that the provisions thereof are not applicable, or that the User would in any way lose the right to demand strict compliance with the provisions in these terms and conditions in other cases.
Article 2. Quotations and offers
2.1 All quotations and offers from the User are without obligation, unless a period for acceptance is stated in the quotation. A quotation or offer expires if the product to which the quotation or offer relates is no longer available in the meantime or when the validity of the quotation has expired.
2.2 The User cannot be held to its quotations or offers if the counterparty can reasonably understand that the quotations or offers, or a part thereof, contain an obvious error or clerical mistake.
2.3 The prices stated in a quotation or offer are exclusive of VAT and other government levies, and any costs to be incurred in the context of the agreement, including shipping and administrative costs, unless otherwise indicated.
2.4 If the acceptance (whether or not on minor points) deviates 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.
2.5 A composite price quotation does not oblige the User to perform a part of the assignment for a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 3. Contract duration; delivery periods; execution and modification of the agreement
3.1 The agreement between the User and the Counterparty is entered into for an indefinite period, unless the nature of the agreement indicates otherwise or if the parties expressly agree otherwise in writing.
3.2 If a period has been agreed upon or specified for the completion of specific work or for the delivery of specific goods, this is never a firm deadline.
In the event of exceeding a deadline, the Counterparty must therefore notify the User in writing of the default. The User must thereby be offered a reasonable period of time to still execute the agreement.
3.3 If the User requires data from the Counterparty for the execution of the agreement, the execution period shall not commence until the Counterparty has made this data available to the User accurately and completely.
3.4 Delivery takes place at the User's premises. The Counterparty is obliged to take delivery of the goods at the moment they are made available to him. If the counterparty refuses acceptance or is negligent in providing information or instructions necessary for delivery, the User is entitled to store the goods at the expense and risk of the counterparty.
3.5 The User has the right to have certain work performed by third parties.
3.6 The User is entitled to execute the agreement in various phases and to invoice the part thus executed separately.
3.7 If the agreement is executed in phases, the User may suspend the execution of those parts belonging to a subsequent phase until the Other Party has approved the results of the preceding phase in writing.
3.8 If, during the execution of the agreement, it becomes apparent that it is necessary to modify or supplement it for proper execution, the parties shall proceed to adjust the agreement in a timely manner and by mutual consultation. If the nature, scope, or content of the agreement is modified, whether at the request or instruction of the Other Party, the competent authorities, etc., and the agreement is thereby modified qualitatively and/or quantitatively, this may also have consequences for what was originally agreed. Consequently, the originally agreed amount may be increased or decreased. The User shall provide a price quotation for this in advance as much as possible. Furthermore, a modification of the agreement may alter the originally specified execution period. The Other Party accepts the possibility of modification of the agreement, including changes in price and execution period. 3.9 If the agreement is amended, including any additions, the User is entitled to execute the changes only after approval has been given by the person authorized within the User and the Counterparty has agreed to the price and other conditions specified for the execution, including the time at which the execution will take place. Failure to execute the amended agreements, or failure to execute them immediately, does not constitute a breach of contract by the User, nor does it constitute grounds for the Counterparty to terminate the agreement. Without thereby being in default, the User may refuse a request to amend the agreement if this could have had consequences in qualitative and/or quantitative terms, for example regarding the work to be performed or goods to be delivered in that context.
3.10 If the Counterparty should default in the proper fulfillment of its obligations towards the User, the Counterparty shall be liable for all damages (including costs) incurred by the User, arising directly or indirectly as a result thereof. 3.11 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 price increase results from an authority or obligation pursuant to law or regulations, or is caused by an increase in the price of raw materials, wages, etc., or on other grounds that could not reasonably have been foreseen at the time the agreement was entered into.
3.12 If the price increase, other than as a result of an amendment to the agreement, exceeds 10% and occurs within three months after the conclusion of the agreement, only the Counterparty entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by a written declaration, unless the User is then still willing to perform the agreement on the basis of what was originally agreed, or if the price increase results from an authority or an obligation resting on the User as a result of the law, or if it has been stipulated that delivery will take place more than three months after the purchase.
Article 4. Suspension, dissolution and interim termination of the agreement
4.1 The User is entitled to suspend the performance of the obligation or to dissolve the agreement if:
the other party fails to fulfill its obligations under the agreement, or fails to do so fully or in a timely manner;
circumstances that have come to the User's attention after the conclusion of the agreement give good grounds to fear that the other party will not fulfill its obligations;
the other party was requested, upon conclusion of the agreement, to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient;
due to delay on the part of the other party, it can no longer be expected of the User that it will fulfill the agreement under the originally agreed conditions, the User is entitled to dissolve the agreement.
4.2 Furthermore, the User is entitled to dissolve the agreement if circumstances arise which are of such a nature that performance of the agreement is impossible, or if other circumstances arise which are of such a nature that the continued existence of the agreement in its unchanged form cannot reasonably be expected of the User.
4.3 If the agreement is dissolved, the User's claims against the Counterparty become immediately due and payable. If the User suspends performance of the obligation, he retains his rights under the law and the agreement.
4.4 If the User proceeds to suspension or dissolution, he is liable for compensation for damages and costs arising therefrom.
4.5 If the dissolution is attributable to the Counterparty, the User is entitled to compensation for the damages, including costs, arising directly and indirectly therefrom.
4.6 If the Counterparty fails to fulfill its obligations arising from the agreement and this non-fulfillment justifies dissolution, the User is entitled to dissolve the agreement immediately and with immediate effect without any obligation on his part to pay any compensation or indemnification, whereas the Counterparty is obliged to pay compensation or indemnification on account of breach of contract. 4.7 If the agreement is terminated prematurely by the User, the User shall, in consultation with the Counterparty, arrange for the transfer of work remaining to be performed to third parties. This is unless the termination is attributable to the Counterparty. If the transfer of the work entails additional costs for the User, these shall be charged to the Counterparty. The Counterparty is obliged to pay these costs within the specified periods, unless the User indicates otherwise.
4.8 In the event of liquidation, suspension of payments or bankruptcy, seizure—if and to the extent that the seizure has not been lifted within three months—at the expense of the Counterparty, debt restructuring, or any other circumstance whereby the Counterparty cannot freely dispose of its 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 its part to pay any compensation or damages. In that case, the User's claims against the Counterparty are immediately due and payable. 4.9 If the counterparty cancels a placed order in whole or in part, the goods ordered or prepared for that purpose, increased by any transport and delivery costs thereof and the labor time reserved for the execution of the agreement, shall be charged in full to the counterparty.
Article 5. Force Majeure
5.1 The User is not obliged to fulfill any obligation towards the counterparty if he is hindered in doing so as a result of a circumstance that is not attributable to fault, nor is for his account pursuant to the law, a legal act, or generally accepted practice.
5.2 In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, over which the User cannot exercise influence, but which render the User unable to fulfill his obligations. Strikes in the User's company or in the companies of third parties are included therein. The User also has the right to invoke force majeure if the circumstance preventing performance of the agreement occurs after the User should have fulfilled its obligation.
5.3 The User may suspend the obligations under the agreement for the duration of the force majeure. If this period lasts longer than six weeks, either party is entitled to dissolve the agreement without any obligation to compensate the other party for damages.
5.4 To the extent that the User has already partially fulfilled its obligations under the agreement at the time of the occurrence of force majeure, or will be able to fulfill them, and the fulfilled or to be fulfilled part has independent value, the User is entitled to invoice the already fulfilled or to be fulfilled part separately. The counterparty is obliged to pay this invoice as if it were a separate agreement.
Article 6. Payment and collection costs
6.1 Payment must be made within 30 days of the invoice date, in a manner to be specified by the User and in the currency in which the invoice was issued, unless otherwise indicated in writing by the User. The User is entitled to invoice periodically.
6.2 If the counterparty fails to make timely payment of an invoice, the counterparty shall be in default by operation of law. The counterparty shall then owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall be due. The interest on the amount due shall be calculated from the moment the counterparty is in default until the moment the full amount due has been paid.
6.3 The User has the right to apply payments made by the Counterparty primarily to reduce costs, subsequently to reduce accrued interest, and finally to reduce the principal amount and current interest.
6.4 The User may, without thereby being in default, refuse an offer of payment if the Counterparty specifies a different order for the allocation of the payment. The User may refuse full repayment of the principal amount if the accrued and current interest and collection costs are not also paid at the same time.
6.5 The Counterparty is never entitled to set off the amount owed by him to the User.
6.6 Objections to the amount of an invoice do not suspend the payment obligation. The Counterparty who is not entitled to invoke Section 6.5.3 (Articles 231 to 247 of Book 6 of the Dutch Civil Code) is likewise not entitled to suspend payment of an invoice for any other reason. 6.7 If the counterparty is in default or in arrears in the (timely) fulfillment of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the counterparty. The extrajudicial costs shall be calculated on the basis of what is customary in Dutch debt collection practice, currently the calculation method according to Report Voorwerk II.
(6.7) However, if the User has incurred higher collection costs that were reasonably necessary, the actual costs incurred shall be eligible for reimbursement. Any judicial and enforcement costs incurred shall also be recovered from the counterparty. The counterparty shall also owe interest on the outstanding collection costs.
Article 7. Retention of Title
7.1 All goods supplied by the User within the framework of the agreement shall remain the property of the User until the counterparty has properly fulfilled all obligations arising from the agreement(s) concluded with the User.
7.2 Goods supplied by the User that are subject to 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 otherwise encumber the goods subject to retention of title.
7.3 The Counterparty shall at all times do everything that may reasonably be expected of it to safeguard the User's ownership rights.
7.4 If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Counterparty is obliged to notify the User thereof immediately.
7.5 The Counterparty undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage, as well as against theft, and to provide the policy of this insurance to the User for inspection upon first request. In the event of any insurance payout, the User is entitled to these funds. To the extent necessary, the Counterparty undertakes in advance to cooperate with the User in everything that may prove to be necessary or desirable in that context. 7.6 In the event that the User wishes to exercise its ownership rights as indicated in this article, the Counterparty hereby grants the User and third parties designated by the User unconditional and irrevocable permission in advance to enter all places where the User's property is located and to reclaim said items.
Article 8. Guarantees, inspection and complaints, limitation period
8.1 The goods to be delivered by the User comply with the customary requirements and standards that can reasonably be expected of them 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 goods intended for use within the Netherlands. In the event of use outside the Netherlands, the Counterparty must itself verify whether their use is suitable for use there and complies with the conditions imposed thereon. In that case, the User may impose different guarantee and other conditions regarding the goods to be delivered or the work to be performed.
8.2 The warranty referred to in paragraph 1 of this article applies for a period of 1 calendar year following the expiry date of the product, unless the nature of the delivered item dictates otherwise or the parties have agreed otherwise. If the warranty provided by the User concerns an item produced by a third party, the warranty is limited to that provided by the producer of the item, unless stated otherwise.
8.3 Any form of warranty shall lapse if a defect has arisen as a result of or stems from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the counterparty and/or by a third party, or if, without the written permission of the user, the counterparty or third parties have made or attempted to make modifications to the item, attached other items to it that should not be attached to it, or if it has been altered or treated in a manner other than the prescribed manner. The counterparty is also not entitled to a warranty claim if the defect has arisen from or is the result of circumstances (such as, for example, extreme rainfall or temperatures, etc.).
8.4 The counterparty is obliged to inspect the delivered goods (or have them inspected) immediately at the moment the goods are made available to him or the relevant work has been carried out. In doing so, the counterparty must examine whether the quality and/or quantity of the delivered goods corresponds to what has been agreed and meets the requirements agreed upon by the parties. Any visible defects must be reported to the user in writing within seven days after delivery. Any non-visible defects must be reported to the User in writing immediately, but in any event no later than fourteen days after their discovery. The report must contain a description of the defect that is as detailed as possible, so that the User is able to take appropriate action. The Counterparty must allow the User the opportunity to investigate a complaint.
8.5 If the Counterparty lodges a complaint in a timely manner, this does not suspend its payment obligation. In that case, the Counterparty also remains obliged to accept and pay for the other ordered items.
8.6 If a defect is reported later, the Counterparty is no longer entitled to repair, replacement, or compensation.
8.7 If it is established that an item is defective and a timely complaint has been lodged in this regard, the User shall, within a reasonable period after receipt of the returned item or, if return is not reasonably possible, after written notification of the defect by the Counterparty, at the User's discretion, replace the defective item, arrange for its repair, or pay the Counterparty replacement compensation for it. In the event of replacement, the counterparty is obliged to return the replaced item to the User and transfer ownership thereof to the User, unless the User indicates otherwise.
8.8 If it is established that a complaint is unfounded, the costs arising therefrom, including investigation costs incurred by the User, shall be borne entirely by the counterparty.
8.9 After the expiration of the warranty period, all costs for repair or replacement, including administrative, shipping, and travel expenses, shall be charged to the counterparty.
8.10 Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against the User and third parties involved by the User in the execution of an agreement shall be one year.
Article 9. Liability
9.1 The User is only liable for damage attributable to its intent or willful recklessness, subject to the following;
9.2 Damage for which liability is expressly excluded;
The User is never obliged to compensate for damage other than to persons or property;
if the Counterparty has approved the delivered products and/or services prior to commissioning in compliance with applicable laws and regulations, the Counterparty bears full responsibility and the User is not liable towards the Counterparty and/or third parties to whom the Counterparty has resold the goods and/or services;
consequential damage, including, among others, business damage, stagnation damage, and lost profits;
damage caused by auxiliary persons engaged by the Counterparty or third parties, even in cases of intent or gross negligence;
damage suffered by the Counterparty due to claims from third parties;
damage arising from the Counterparty having exerted influence on the composition of the goods and/or services produced and delivered by the User. 9.3 If, in accordance with the above, one or more liabilities arise, then these liability(ies) shall at all times be jointly limited to a maximum of the invoice amount owed by the Counterparty in connection with the relevant legal relationship, or, insofar as this would be manifestly unreasonable, to a maximum of the amount made available by the User’s insurer as a compensation payment.
9.4 The Counterparty shall, if desired, insure itself against damage.
Article 10. Substitution of Risk
10.1 The risk of loss, damage, or depreciation passes to the Counterparty at the moment goods are placed in the possession of the Counterparty.
Article 11. Indemnification
11.1 The Counterparty shall indemnify the User against any claims from third parties who suffer damage in connection with the execution of the agreement and whose cause is attributable to a party other than the User. 11.2 If the User is sued by third parties on this account, the Counterparty is obliged to assist the User both out of court and in court and to immediately take all actions that may be expected of him in that case. Should the Counterparty fail to take adequate measures, the User is entitled to take such measures himself without notice of default. All costs and damages incurred by the User and third parties as a result thereof shall be entirely for the account and risk of the Counterparty.
Article 12. Intellectual Property
12.1 The User reserves the rights and powers vested in him under the Copyright Act and other intellectual property laws and regulations. The User has the right to use the knowledge gained on his side through the execution of an agreement for other purposes as well, provided that no strictly confidential information of the Counterparty is disclosed to third parties.
Article 13. Applicable Law and Disputes
13.1 All legal relationships to which the User is a party shall be governed exclusively by Dutch law. Also if an obligation is performed wholly or partially abroad or if the party involved in the legal relationship resides there. The applicability of the Vienna Sales Convention is excluded.
13.2 The court in the user's place of business has exclusive jurisdiction to hear disputes, unless the law mandatorily prescribes otherwise. Nevertheless, the user has the right to submit the dispute to the court competent under the Law.
13.3 The parties shall only resort to the court after they have made every effort to settle a dispute by mutual consultation.
Article 14. Location and amendment of conditions
14.1 These conditions have been filed with the Chamber of Commerce in Middelburg, the Netherlands.
14.2 The most recently filed version or the version that was in force at the time the legal relationship with the user was established shall always apply.
14.3 The Dutch text of the general terms and conditions shall always be decisive for their interpretation.