Article 1 General
1. These general terms and conditions apply to any offer, quote and agreement concluded by Chabel B.V. (hereafter referred to as: “the User”), and the Other Party to which the User has declared this to be applicable, insofar as these terms and conditions are not explicitly deviated from by the parties in writing.
2. The current general terms and conditions also apply to all agreements with the User which requires the User to engage third parties.
3. These general terms and conditions have also been documented for the employees of the User and its management.
4. The applicability of any purchase or other terms and conditions of the Other Party are explicitly rejected.
5. If one or more provisions of these general terms and conditions are declared fully or partially nullified or removed, then that stated in the remainder of these general terms and conditions remains applicable in full. In that case, the User and the Other Party will meet in order to agree new provisions to replace the nullified or removed provisions, whereby the aim and intent of the original provisions are followed to the extent possible.
6. If the intention of one or more provisions of these general terms and conditions is unclear, then it must be explained following ‘the spirit’ of these provisions.
7. If a situation occurs between the parties that is not provided for in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.
8. If the user does not always demand the strict adherence to these general terms and conditions, this does not mean that the provisions thereof do not apply or that the User would in any way loose the right to demand the strict adherence to the provisions of these general terms and conditions in other cases.
Article 2 Quotes and offers
1. All quotes and offers made by the User are free of obligation unless the quote states a period of acceptance. A quote or offer is cancelled if the product to which the quote or offer relates has in the meantime become unavailable.
2. If a quote or offer contains an offer that is free of obligation and this offer is accepted by the Other Party, the User is entitled to recall the offer within two (2) working days upon receipt of the acceptance.
3. The User is not obliged to honour his quotes or offers if the Other Party can reasonably understand that the quotes or offers, or a part thereof, contain an apparent mistake or typo.
4. The prices listed in a quote or offer are excluding VAT and other government levies, costs to be incurred in the performance of the agreement, such as travel and accommodation, postage and administrative costs, unless otherwise is stated.
5. If the acceptance (whether or not on minor points) deviates from the offer stated in the quote or offer, then the User shall not be bound by it. The agreement will in that case not be concluded pursuant to this deviating acceptance, unless the User states otherwise.
6. A composite price quote does not form an obligation for the User to perform a part of the assignment at a corresponding part of the price quoted. Offers and quotes do not automatically apply to future orders.
Article 3 Delivery, delivery period
1. If a period is agreed or indicated for the completion of certain activities or delivery of certain items, then this never constitutes a final deadline. If a period is exceeded, the other Party must therefore send the User a written notice of default. The User must thereby be offered a reasonable period in which he can still perform the agreement.
2. If the User required information from the Other Party for the performance of the agreement, the performance period does not commence until the Other Party has made the correct and complete information available to the User.
3. If the delivery is cash-on-delivery, then the cheapest shipment method is used, unless otherwise has been agreed in writing. In the event of a deviating method of shipping, the additional costs incurred will be payable by the Other Party.
4. The Delivery is made ex works of the Other Party, unless otherwise has been agreed in writing. The Other Party is obliged to purchase the items the moment when these are made available to him. If the Other Party refuses to purchase or is negligent in providing the information or instructions necessary for the delivery, the User is entitled to store the items for account and risk of the Other Party.
5. The acceptance of the goods by the transporter without a statement on the freight letter or the receipt, is proof that the packaging was in good condition.
6. The User is entitled to perform the agreement in different phases and to invoice the individual parts performed separately.
7. If the agreement is performed in phases, the User can suspend the performance of those parts that belong to the next phase, until the Other Party has approved the results of the preceding phase in writing.
8. If, during the performance of the agreement, it becomes apparent that this needs to be changed or added to for the good meeting of the agreement, the parties will adjust the agreement in mutual consultation in a timely fashion. If the nature, scope or content of the agreement, whether or not on request or indication of the Other Party, the competent authorities etc., is changed, thereby changing the quality and/or quantity of the agreement, this could also have consequences for that originally agreed. This could lead to an increase or decrease of the price originally agreed upon. The User will provide an estimate to the extent possible. The original period of execution can change as a result of the agreement being changed. The Other Party accepts the possibility of changing the agreement, including changes in price and the period in which the assignment is performed.
9. If the agreement is amended, including any addition thereto, then the User is entitled to perform this first after it has been given the approval thereto by an authorised representative of the User and the Other Party has agreed with the price quotes and other conditions, including the time at which this will be performed. Not performing the changed agreement (in time) will also not result in a default of the User and does not constitute a ground for the Other Party to dissolve the agreement. Without being in default, the User can refuse a request for amendment of the agreement, if this would affect the quality or quantity of, for example, the activities to be performed or the goods to be delivered in that respect.
10. If the Other Party is declared in default in the sound meeting or that he is bound to do in respect of the User, then the Other Party is liable for all the damage (including costs) incurred by the User as a direct or indirect result thereof.
11. If the User agrees a fixed price with the Other Party, then the User is nevertheless entitled to increase this price at any time, without the Other Party being entitled to dissolve the agreement for that reason, if the increased price results from an authority or obligation resulting from rules and legislation or is caused by the increased price of the raw materials, wages etc. or on other grounds that could not reasonably be expected upon entering the agreement.
12. If the increase in price resulting from a change of the agreement exceeds 10% and takes place within three months after concluding the agreement, then the Other Party is the only party entitled to invoke title 5 section 3 of Book 6 Dutch Civil Code and dissolve the agreement by way of a written statement, unless the User is still prepared to perform the agreement on the basis of that originally agreed upon, or if the increase in price results from an authority or a legal obligation on the user or if it has been agreed that the delivery will take place after three (3) months after the purchase.
Article 4 Performance of the agreement
1. The User will perform the work well, sound, pursuant to the applicable regulations and pursuant to the provisions of the agreement, but does not accept any liability for the any failure to realise the purpose intended by the Other Party.
2. Upon performing the agreement, the User is always authorised to fully or partially have the work performed by third parties not employed by the User without any further or preceding meeting
with the Other Party, if this benefits a good or efficient performance of the assignment. This is subject to the discretion of the User.
3. The Other Party cannot have the third parties engaged by the User perform activities which do not form part of the agreed activities.
4. If, for the duration of the agreement, activities are performed for the benefit of the company or profession of the Other Party which do not form part of the activities to which the agreement relates, these activities are deemed to have been performed on the basis of separate agreements and are therefore invoiced separately.
5. The Other Party must ensure that the User is provided with the facilities that the User considers necessary or useful for the performance of the agreement and that are in compliance with all the (legal) requirements. The costs for connection and use and the use of other additional means are payable by the Other Party.
6. Any delay or disruption is not payable by the User, unless the User is responsible for causing it, notwithstanding that agreed with regard to the (exceeding of the) delivery period. Waiting hours of the User will be invoiced (separately) to the Other Party on the basis of the normal fees of the User.
7. The performance of an assignment takes place within the normal hours planned for this purpose. If an assignment must be speeded up, then any overtime or additional costs incurred can be invoiced. The Other Party does allow the User some flexibility with regard to the performance period. The period is only an irrevocable deadline if the Other Party has informed the User of the consequences of a delay upon issuing the assignment and if this has been confirmed by the User to the Other Party in writing.
8. The activities of the User must be regarded as provided:
– if the User has informed the Other Party that the activities have been completed and the work is ready to use and the Other Party has approved or accepted the work; and/or
– if the foregoing has taken place in writing and the Other Party fails to approve or accept the work within eight (8) days; and/or
– if the Other Party uses or again uses the work or a part thereof (prematurely).
9. Minor defects in the activities which can be repaired within the guarantee period and that do not influence the operation of the work will not get in the way of the delivery.
10. Delivery releases the User from any liability for defects that the Other Party could have reasonably discovered at the time and the consequences thereof.
11. The risk of loss, damage or devaluation is transferred to the Other Party the moment the goods are delivered to the Other Party, the goods have been installed, the Other Party gains control of the goods or as soon as everything has been delivered. Article 5 Additional work 1. If the Other Party wishes to add to and/or change the accepted work, then the User will inform the Other Party as soon and as precisely as possible in writing of the price increase resulting thereof and will request the Other Party to issue a written assignment for those additional activities. The absence of a written assignment for additional work from the Other Party does not affect the User’s claim for a settlement of those additional activities. 2. Additional work is settled upon commencement of the next payment period. If no payment period has been agreed, then the additional work will be paid upon completion thereof and/or at the final settlement. 3. Circumstances resulting in additional costs that are not due to the User, are settled as additional work.
Article 6 Suspension, dissolution and intermediate termination of the agreement
1. The User is authorised to suspend the meeting of the obligations or dissolve the agreement if:
– the Other Party does not or does not fully meet the obligations of the agreement or fails to do so on time, after the agreement has been concluded; and/or
– after concluding the agreement, the User has learned that the circumstances provide good grounds to fear that the Other Party will not meet its obligations; and/or
– upon concluding the agreement, the Other Party that is requested to raise surety for the meeting of its obligations of the agreement, but fails to do so or provides insufficient surety; and/or
– if, due to a delay caused by the Other Party, it can no longer be demanded from the User that he will meet the agreement under the originally agreed conditions, the User is entitled to dissolve the agreement.
2. the User is also authorised to dissolve the agreement if the circumstances occur that of such a nature that meeting the agreement is impossible or if other circumstances take place that of such a nature that maintaining the agreement as it is cannot reasonably be demanded.
3. If the agreement is dissolved, the claims the User holds on the Other Party are payable immediately. If the User suspends the meeting of the obligations, then he retains his legal claims and those arising from the agreement.
4. If the User proceeds to suspend or dissolve the agreement, he is not obliged in any way to pay damages or costs resulting thereof in any way.
5. If the dissolution of the agreement is attributable to the Other Party, the User is entitled to payment of damages, including direct and indirect costs resulting thereof.
6. If the Other Party fails to meet the obligations resulting from the agreement and this non-compliance justifies a dissolution of the agreement, then the User is entitled to immediately dissolve the agreement, effective immediately, without being obliged to payment of any damages or compensation, while the Other Party does have to pay damages or compensation as a result of the default.
7. If the agreement is intermediately terminated by the User, the User will consult with the Other Party to arrange that the activities to be performed are transferred to a third party. This does not apply if the termination can be attributed to the Other Party. If the transfer of the activities results in additional costs for the User, then these will be recharged to the Other Party. The Other Party must pay these costs within the period stipulated, unless the User states otherwise.
8. In the event of a liquidation, (a requested) suspension of payment or bankruptcy, retention – if and insofar as the retention has not been lifted within three months – of the Other Party, or a debt restructuring or any other circumstance as a result of which the Other Party is unable to freely dispose of its assets, then the User is free to immediately terminate the agreement, effective immediately, or to cancel the order or the agreement, without any obligation to payment of any damages or compensation. In such an event, the claims of the User on the Other Party are payable immediately.
9. If the Other Party cancels all or part of an order he has placed, then the items ordered or made ready plus any supply, disposal or delivery costs and the labour hours reserved for the performance of the agreement are directly recharged to the Other Party.
Article 8 Guarantee
1. The guarantee on the semi-finished product supplied by the User concerns a forwarded supply from the manufacturer of the semi-finished product. Any form of guarantee is cancelled if a failure has occurred as a result or as a consequence of inexpert or inappropriate use thereof or use after the sell-by-date, incorrect storage or maintenance thereof by the Other Party and/or third parties when, without written permission of the User, the Other Party or third parties have made changes to the items or have tried to make changes, have attached other items that should not be attached to it or if these were processed or changed in a way that was not prescribed. The Other Party is also not eligible to a guarantee if the failure arose or is the result of circumstances on which the User could not exert any influence, including weather conditions (such as, but not limited to, extreme rain or temperature) etc.
2. The User guarantees that any defects regarding the delivered activities that become apparent within two (2) months will be repaired at no cost, provided the defect is the result of the activities, the defect was not reasonably visible upon delivery of the activities and the defect occurred under normal business operations during the correct use of the delivered work.
3. A defect not resulting of the activities and therefore not covered by the guarantee can be: inaccurate use of the installation or the delivered work by the Other Party, lack of maintenance, changes made by or on behalf of the Other Party without prior written permission of the User and/or normal wear and tear.
Article 9 Force majeure
1. The User is not obliged to meet any obligation he has in respect of the Other Party, if he is prevented from doing so due to a circumstance that is not attributable to guilt, and is not payable by the User pursuant to the law, a legal act or generally prevailing opinion.
2. Force majeure is defined in these general terms and conditions as that stated in this respect in legislation and case law plus any additional causes, foreseen or unforeseen, on which the User has no power of control, but that cause the User not being able to meet his obligations. The strikes in the business of the User or of third parties included therein. The User is also entitled to invoke a force majeure if the circumstance hinders the meeting of the agreement, commences after the User was supposed to meet his agreement.
3. The User can suspend the obligations of the agreement for the duration of the force majeure. If this period lasts longer than two (2) months, each party is entitled to dissolve the agreement, without obligation to payment of damages to the other party.
4. Insofar as the User did meet part of its obligations of the agreement at the moment the force majeure commenced or expects to be able to meet these, and a separate value can be attributed to that part, then the User is entitled to separately invoice the part that it has completed or expects to complete. The Other Party must pay this invoice as if it were a separate agreement.
Article 10 Unforeseen circumstances
1. The User will inform the Other Party of any unforeseen circumstances as soon as possible.
2. Any additional costs incurred by the User as a result of immediate action, without being able to consult the Other Party, for the purposes of limiting the damage resulting from an unforeseen circumstance, will be payable in full by the Other Party.
Article 11 Payment and (debt collection) costs
1. The invoice must be paid within 30 days after the date of invoice, in the currency stated by the User in his invoice, unless the User states otherwise in writing. The User is entitled to send periodic invoices.
2. The payment of the Other Party in instalments will be made depending on the progress (management and additional work) or duration (contracting) of the activities by the User without the Other Party being entitled to discount, suspension or settlement. The agreement stipulates whether the payment is made in instalments and how this is divided.
3. In the event of late payment, the User is authorised to suspend the activities and the guarantee (temporarily, permanently or completely), notwithstanding any other rights attributed to the User.
4. If the Other Party is a new debtor, the Other Party must fully pay his first order of the items in advance.
5. Upon exceeding the payment period, the Other Party is immediately legally in default just by the lapsing of the period. In that case, the User is entitled to calculate a monthly interest of 2% on the amount still owed to the User. Unless the statutory interest is higher, in which case the statutory interest is due. The interest on the receivable will be calculated from the moment that the Other Party is in default up to the moment the full invoiced amount has been settled.
6. The User is entitled to use the payments made by the Other Party for the settlement of the costs first, then to settle the interest that has fallen due and finally to settle the main sum due and the current interest.
7. The Other Party is never entitled to settlement of the sums he owes the User.
8. Objections against the height of the invoice do not suspend the payment obligation. The Other Party that does not invoke title 5, section 3 of Book 6 Dutch Civil Code is also not entitled to suspend the payment of an invoice for another reason.
9. If the Other Party is in default or fails to meet his obligations (on time), then all the reasonable costs in for extra judicial settlement are payable by the Other Party. In deviation of article 96 of book 6 Dutch Civil Code – also in deviation of the Decree on the Payment of Extrajudicial Debt Collection Costs, the User claims a payment of the extrajudicial (debt collection) costs, which are set at an amount equal to 15% of the total outstanding sum with a minimum of € 200.00 for each fully or partially unpaid invoice. If the User incurred higher costs for the debt collection than would have been reasonably necessary, then the actually incurred costs are eligible for compensation. Any judicial and execution costs incurred will also be recharged on the Other Party. The Other Party must also pay interest on the debt collection costs payable.
Article 12 Retention of title
1. All the items supplied or installed by the User as part of the agreement remain the property of the User until the Other Party has fully complied with all the obligations pursuant to the agreement(s) concluded with the User; should the Other Party fail to comply, then the User is authorised to retrieve all the items or to remove them or have them removed.
2. The items delivered by the User, that are subject to retention of title pursuant to section 1, cannot be resold and can never be used as a form of payment. The Other Party is not entitled to pawn items that are subject to the retention of title or to mortgage them in any other way.
3. The Other Party must always do that what can reasonably expected of him to secure the retention of title of the User.
4. If third parties impound items that were delivered under retention of title or wish to impose or apply any rights thereon, then the Other Party is obliged to immediately inform the User thereof in writing.
5. The Other Party is obliged to insure the items subject to retention of title and to keep them insured against fire, explosion and water damage, theft and to make the policy of this insurance available to the User upon first request. If any payments are made under the insurance, the User is entitled to receiving these payments. Insofar necessary, the Other Party promises in advance to provide his cooperation for the User to all that would (appear to) be necessary or desired in that respect.
Article 13 Non-conformity
1. The items to be supplied by the User meet the usual conditions and norms that can reasonably be imposed at the time of delivery and for which they would normally be used in the Netherlands. For use outside the Netherlands, the Other Party is responsible for verifying whether the use thereof is suitable for the use there and meet the conditions that apply in this respect. The User can in that case impose other guarantees and other conditions for the goods to be supplied or the activities to be performed.
2. Statements with regard to the supply and the performance and the use of the items (e.g. dimensions, weight, hardness, performance) are only descriptions or guidelines and do not constitute guaranteed qualities; they must be regarded as an indication and are subject to variations in the sector, unless otherwise has been agreed.
3. The Other Party must (have) that delivered or the work performed checked immediately when the time at which the items were made available to him or when the activities in question were performed. The Other Party must check whether the quality and/or quantity of that delivered is in accordance with that agreed upon and meets the conditions agreed upon by the parties. Any visible defects must be reported to the User in writing within seven (7) days after delivery. Any defects that are not visible must immediately be reported in writing, or at least no later than fourteen (14) days after they have been discovered. The report must contain a description of the defect that is as detailed as possible, in order to enable the User to respond adequately. The Other Party must enable the User to have a complaint researched.
4. If the Other Party reports a complaint in time does not relieve him from his payment obligation. The Other Party will in that case still be obliged to purchase and pay the items ordered.
5. If a defect is notified too late, the Other Party will no longer be entitled to repair, replacement or compensation.
6. If it is clear that an item is faulty and this has been reported in time, then the User will replace or ensure the repair of the faulty item within a reasonable period after it has been returned, or, if it cannot reasonably be returned, after the written notification of the Other Party concerning the failure, or will pay a compensation to the Other Party. In the event of replacement, the Other Party must return the replaced item to the User and to grant ownership to the User, unless the User states otherwise.
7. If it becomes clear that a complaint is unfounded, then the costs incurred, including research costs at the side of the User, are fully payable by the Other Party.
8. After the guarantee period has lapsed any costs for repair or replacement, including administration, delivery and call-out costs, will be invoiced to the Other Party.
9. In deviation of the legal limitation periods, the limitation period of all claims and defences against the User and the third parties the User involved in the performance of an agreement, amounts to one (1) year. 10. The Other Party must submit the original receipt of purchase of the items form the User in order to legally claim under the guarantee.
Article 14 Liability
1. If the User should be liable, this liability is limited to that stated in this provision.
2. The User is not liable for damage of any nature that has arisen as a result of the User working on the basis of incorrect and/or incomplete information provided by or on behalf of the Other Party.
3. If the User should be liable for any damage, then the liability of the User is limited to no more than the invoiced value of the order, at least the part of the order to which the liability relates.
4. The liability of the User is in any event always limited to the amount that the insurer would pay in such an event.
5. The User is only liable for direct damage insofar as this can be attributed to him or the work performed.
6. Direct damage only refers to the reasonable costs to establish the cause and the scope of the damage, insofar the establishment relates to damage within the meaning of these general terms and conditions, the possible reasonable costs made to allow the User to rectify the faulty performance of the User to have it meet the conditions of the agreement, for as much as these can be attributed to the User and reasonable costs made for the prevention or limitation of damage, insofar as the Other Party shows that these costs have resulted in the limitation of direct damage within the meaning of these general terms and conditions.
7. The User is never liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption.
8. The liability limitations included in this article do not apply if the damage is due to intent or gross negligence of the User which is explicitly established and which have been proven and have irrefutably been established by the Other Party.
Article 15 Indemnification
1. The Other Party indemnifies the User against any claims of third parties that suffer damages in relation to the performance of the agreement and the cause of which cannot be attributed to the User.
2. If the User were to be held liable for damages by third parties, then the Other Party must assist the User in extrajudicial and judicial proceedings and must immediately do everything that may be expected of him in such an event. Should the Other Party be in default in taking adequate measures, the User is entitled, without a notice of default, to do so himself. All the costs incurred and damaged suffered by the User and third parties as a result thereof are for the full account and risk of the Other Party.
Article 16 Applicable law and jurisdiction
1. All the legal relations to which the User is a party are exclusively subject to Dutch law, even if an agreement is fully or partially performed abroad or if the party involved in the legal relation resides abroad. The applicability of the Vienna Sales Convention is explicitly excluded.
2. Any disputes arising from this agreement are brought before the court in the place where the User resides, unless imperative law prescribes otherwise. However, the User is entitled to bring the dispute before the legal competent court.
3. The Parties will bring any disputes arising from this agreement before the court after having done their utmost to settle the dispute amicably within a period of no more than three (3) months from the moment the User considers that the dispute has arisen.