GENERAL CONDITIONS OF SALE, DELIVERY AND PAYMENT OF THE LIMITED COMPANY GIELISSEN'S BEDRIJVEN BV, HAVING ITS REGISTERED OFFICE AND PRINCIPAL PLACE OF BUSINESS IN EINDHOVEN
These terms and conditions are filed with the Chamber of Commerce Brabant under number 17011886.
Article 1 GENERAL PROVISIONS
1.1 Gielissen’s Bedrijven LLC, including its affiliated Dutch enterprises, is the user of these general terms and conditions and will hereafter be referred to as: we.
1.2 'Other party' should be understood to mean any person or legal entity we address our offers to, who gives us an order, who enters into an agreement with us and furthermore those we have a legal relationship with.
1.3 Products should be understood to mean goods, services (including advice, the provision of information, and mediation) and contracting work (including projects).
1.4 Factory should be understood to mean our company premises, factories and/or warehouses, and/or the company premises and/or warehouses of third parties who supply goods to us.
Article 2 APPLICABILITY
2.1 These general terms and conditions apply to and form an integral part of all the offers we make (including annexes, descriptions, illustrations, drawings, calculations, etc) for the agreements we enter into (including orders, the acceptance of work, etc) and of all other legal relationships we engage in, including those in the future.
2.2. Any deviations from and additions to these conditions will only bind us provided we confirmed them in writing.
2.3 Any reference by the other party to its own general conditions and/or other terms and conditions are hereby explicitly rejected.
2.4 If the agreement does not materialise, the other party is not entitled to use any information received from us in the context of our quote, such as designs, descriptions, drawings, models, programmes etc, except if we explicitly consent to it in writing in return for payment of a reimbursement, for which we will determine a fair rate. We will retain the title of all intellectual rights, unless agreed otherwise.
Article 3 QUOTE
3.1 All our offers and prices lists are without obligation and they remain valid for a period of four weeks, unless the quote states otherwise.
3.2 All our offers are based on the agreement being executed under normal circumstances and during normal working hours, unless explicitly agreed otherwise, insofar as we confirmed it in writing.
Article 4 CONTRACTUAL FORMATION
4.1 The contract is formed and becomes fully effective through our order confirmation, unless the other party expresses objections in writing within seven working days from the day the order confirmation is sent.
4.2 In the event the acceptance of the other party deviates from our proposal, this will be interpreted as a new proposal from the other party and a rejection of our proposal, also if the deviation only concerns subordinate points.
4.3 If the order of the other party only concerns making photos, designs, maquettes, models, drawings etc. without leading to a further contract, the other party is obliged to reimburse all the expenses incurred.
Article 5 PRICE
5.1 The prices that we quote are net of turnover tax and net of any other government taxes levied on the execution of the contract; they are based on a continuous work process and the price level of wages, materials etc., at the time of the quote.
5.2 We will always pass on any changes and/or price increases up to the point of delivery, (for example in wages, transport costs, increases and/or new taxes and/or [increases in] energy prices or other factors influencing the costs), unless we agreed otherwise in writing.
5.3 Price increases arising from additions and/or changes to the agreement carried out at the request of the other party, are for the account of the other party.
5.4 We will charge for costs arising because the other party remained in default by preventing the execution of the contract and/or because the other party did not provide the necessary information despite having been sent a notice of default and/or due to circumstances attributable to the other party causing us to incur costs.
5.5 Any default by the other party terminates our default, should we be in default. While the other party is in default, it is not authorised to take measures for the execution of the agreement. We will charge for costs caused by the other party being in default.
5.6 We are authorised to invoice the other party for the cost of materials or facilities made available that are not mentioned in our quote and/or contract.
Article 6 STORAGE
6.1 The agreed purchase price and delivery price of goods we supply does not include the cost of storage, unless agreed otherwise.
6.2 We will take out insurance for goods owned by the other party that we hold in storage, based on event insurance. The insurance will be subject to the Standard Dutch Bourse Conditions for Property Damage and Loss of Profits Insurance (NBZB 2006) with IAK supplement NBZB 2006, or of the latest version of those conditions.
Article 7 EXECUTION OF WORK AND DELIVERIES
7.1 In the event the product we are due to supply consists of the fulfilment of a service, we undertake to make every effort. We are not obliged to achieve a result.
7.2 In the event the agreement qualifies as contracting work, we are only obliged to obtain the result that has been expressly agreed in writing.
7.3 We are at all times entitled to outsource or subcontract part or all of the contract to third parties.
7.4 Any completion times we give are never to be considered final unless we agree to them in writing, regardless of the nature of the agreement. In the event we default on a deadline, we must therefore be sent a notice of default, giving us a reasonable period for completion. A reasonable period for completion is in any case to be interpreted as a period that would be deemed reasonable in the sector.
7.5 In the event the execution of the agreement involves us supplying a product, we will build, assemble or install the items to be supplied at an agreed location, unless provided to the contrary. The delivery takes place at the times we specify; we will inform the other party of those delivery times. The other party is obliged to take receipt of the goods at the set delivery times, failure of which will lead to any costs arising as a result (including costs associated with buildings, freight and storage) at our standard rate or locally prevailing rate being charged to the other party, unless it is agreed that we will take the goods into storage. In the event it has been agreed that we will store the goods, Article 6 applies.
7.6 The risk of the goods is transferred to the other party at the point of delivery, as is the ownership of the goods. In the event the goods are only made available for use, the goods nevertheless remain for the account and risk of the other party until the other party has returned them to us.
7.7 In the event it is agreed that we will install and/or assemble the goods in an agreed location, the above still applies.
Article 8 RETURN OF EQUIPMENT
8.1 In the event the other party has been given some of our equipment in use (for example, through a lease), the other party is obliged to disassemble such equipment at the end of the agreed term immediately and upon our first request, for its own account and at its own risk, and to return the equipment in the original condition at the time it was given in use, or it should give us the opportunity (including by granting access to the equipment) to disassemble or arrange the equipment's disassembly, all for the account of the other party, unless the parties agreed otherwise in writing.
8.2 We undertake to inspect the returned items and to report complaints within a term of fourteen days to the other party in writing in the event we find any defects or damage.
Article 9 INSPECTION AND COMPLAINTS
9.1 The other party is obliged to inspect the product on receipt and/or the work completed within the meaning of Article 1.3, and to establish whether the product is in order and/or whether the works were carried out in conformity with the order.
9.2 Any complaints, in relation to the products we supplied, in relation to works completed or to amounts invoiced must be submitted within eight working days in writing from receipt of the product, the completion of the works or receipt of the invoices respectively, with a precise description of the facts the complaint relates to.
9.3 If it is not reasonably possible to spot the defect within the aforementioned term, the other party must report the defect to us in writing within 14 days of discovering it or within 14 days of when the defect should reasonably have been discovered, but at the latest within 30 days.
9.4 Minor deviations and/or deviations that are customary in the industry and/or variations and differences in quality, number, measures or finish do not constitute grounds for any complaint.
9.5 Complaints in relation to a particular product leave the obligations of the other party in relation to other products and/or components subject to the contract unimpaired.
Article 10 PAYMENT
10.1 Unless something else is agreed in writing, the other party is obliged to pay within 14 calendar days from the date of invoicing.
10.2 Setoff is not allowed, unless it is agreed otherwise in writing.
10.3 Payment must be made in Euros, or, if it has been agreed in writing, in a foreign currency calculated at the exchange rate on an agreed date, failing which the payment must be made in Euros at the prevailing exchange rate on the day of payment.
10.4 In the event of non-payment within the terms set out in Article 10.1, statutory interest will be due, at a rate of 2% per month or part of the month on the total amount invoiced
10.5 In the event a term of payment is agreed for an amount owed to us by the other party, the amount payable will nevertheless become immediately due and payable in the event the other party goes into liquidation, files for bankruptcy or requests a moratorium on payments.
10.6 The provision in Article 10.5 also applies in the event the other party is in default of any obligation towards us.
10.7 If the other party falls in default of one or more of its obligations, all reasonable costs incurred to obtain satisfaction outside the law will be for the account of the other party.
Article 11 RESERVATION OF OWNERSHIP
11.1 We reserve the ownership of all goods supplied to the other party based on existing and future contracts until the payment obligations for all the goods concerned are fully met.
11.2 If we are also carrying out work against payment for the other party based on contracts within the meaning of Article 11.1, the reserved ownership referred to in Article 11.1 equally applies until the other party has settled our claims for the work concerned in full.
11.3 Furthermore, the reserved ownership for any claims we may obtain against the other party for defaulting on compliance with the contracts referred to in the aforementioned Articles 11.1 and 11.2.
11.4 The other party is prohibited from pledging the goods or to grant any rights to them to a third party.
11.5 The other party is obliged to retain goods supplied subject to retention of title with the necessary care and to keep them recognisable as our property. The other party is obliged to report every instance of when goods in our ownership are missing, stolen, lost or damaged without delay and is obliged to reimburse the resulting damage to those items in full, regardless of its cause. The damage referred to in the previous sentence amounts to at least the new-for-old value, without prejudice to any further liability of the other party for damages due to its failure to return goods in our ownership at all, on time, or properly. In the event of non-compliance with the(se) obligation(s), the total value of the contract becomes immediately due and payable.
11.6 If the other party falls short of its obligations to pay us, or if we have good grounds to fear that it will fall short of its obligations, we are entitled to retrieve the goods provided subject to retention of title.
11.7 Upon our first request, the other party is obliged
1. to insure the goods supplied subject to retention of title and to keep them insured against damage caused by fire, explosions and water as well as against theft, and to allow us to consult those insurance policies.
2. to pledge any claims to us the other party submits to insurance companies in relation to the goods provided subject to retention of title, in the manner stipulated in Section 3 clause 239 of the Dutch Civil Code.
3. to pledge any claims to us the other party obtains on its customers in the context of the normal operation of business, on the sale of goods supplied by us subject to retention of title, in the manner stipulated in Section 3 clause 239 of the Dutch Civil Code.
4. to mark the goods we supplied subject to retention of title as our property.
5. to grant cooperation in other ways to any reasonable measures we wish to take for the protection of our ownership in relation to the goods, and that do not cause an unreasonable obstruction for the normal operation of the other party's business.
Article 12 CANCELLATION
12.1 In the event the other party cancels the contract in part or in full, all costs incurred will be charged to the other party, including any overheads attributable to the cancelled contract, costs of scheduled days, persons and materials booked and loss of profit.
12.2 In the event the other party makes such changes to the contract, in the course of implementation, that the contract can in our opinion no longer be reasonably carried out, we are entitled to terminate the contract early at any stage without being liable for any compensation. Such termination does not prejudice the obligation of the other party to reimburse us for all costs incurred by us until the early termination, including the costs resulting from the early termination.
Article 13 GUARANTEE
13.1 In the event the agreement involves that the other party will retain product supplied and/or work and/or the project we completed in the agreed constellation for a period exceeding six months, we guarantee that the products and/or components supplied by us are sound, provided the other party carefully observes the instructions in relation to the products and/or components and makes normal use of the products, and provided a maintenance contract was entered into with us in relation to the products and/or components for which we recommended this in writing (i.e. for any electronic equipment we supplied), and provided that the defects are not caused by normal wear and tear.
13.2 In the event a guarantee applies as referred to in Article 13.1, it will remain effective for a period of six months from the period of delivery and/or commissioning.
13.3 The guarantee referred to in Article 13.1 does not go beyond obliging us to repair any defects free of charge.
13.4 The other party is in any circumstance obliged to give us adequate opportunities to repair any defect, failing which the claims of the other party will fall.
Article 14 LIABILITY OF THE OTHER PARTY
14.1 The other party is liable for any damage to us, our property and/or the employees and/or third parties we engage, inflicted by the other party or its employees or by third parties contracted by the other party.
14.2 The other party is responsible for any guidelines it gives for constructions and operating methods, as well as for the orders, directions and instructions it gives or that are given on its behalf.
14.3 The other party is liable for any damages resulting from defects in goods, building materials or tools it makes available or that it specifies.
14.4 The consequences of the compliance with statutory provisions or stipulations issued by the government taking effect from the day after the quote onwards, are for the account of the other party.
14.5 The other party indemnifies us against any claims in relation to or arising from any contract entered into with us, insofar the liability falls under the liability of the other party as provided in the aforementioned clauses.
Article 15 OWN LIABILITY
15.1 Under no circumstances are we responsible for any damage other than wilful damage, damage inflicted by gross negligence, or if the damage is covered by mandatory product liability. In the latter case, we are only liable insofar and to the extent provided by law.
15.2 Under no circumstances are we liable for consequential damage and/or resulting loss (including in the event of product liability). Nor are we responsible for trading loss in the event of product liability.
Article 16 GOODS OF THE OTHER PARTY
16.1 The other party guarantees us that the data, materials, constructions and provisions to be made available to us will be provided on time and appropriately, in a manner allowing us to carry out our activities as efficiently as possible, failing which the other party is obliged to compensate us for the additional costs and/or damage we incur as a result.
16.2 The costs of packing and unpacking, assembly and disassembly of the goods referred to in Article 16.1 are for the account of the other party.
16.3 We will only transport the things of the other party, that are destined to be used during the execution of the work pursuant to the provision of the tender, as well as the things of the other party that are destined to be exhibited in, on or with the work, to the location of the work, if this has been agreed in writing. If so, it will be determined at the same time which party carries the costs of the transport.
16.4 If the items are transported for our account and at our risk, they will be insured during the transport as referred to in Article 16.3, as well as during the loading, unloading and during the period they are located in the exhibition space. The Insurance is subject to the Standard Dutch Bourse Conditions for Property Damage 2006 (NBGP 2006) and the all-risk clause G13.
16.5 The risk of items being stolen, going missing or getting lost is only covered provided signs of forcible entry are detected at the suitably secured premises in which the insured goods are located. In the event this circumstance arises, we will never be responsible for it and it will be for the account and risk of the other party. The burden of proof in that respect also lies with the other party.
Article 17 FORCE MAJEURE
17.1 We are never liable for any damage incurred by the other party if we are unable, not able in time or insufficiently able to meet our obligations arising from the contract due to force majeure.
17.2 Force majeure is in any event interpreted as: any circumstance which we were unable to take into account at the time the contract was entered into and as a result of which the normal execution of the contract cannot reasonably be demanded by the other party; for example, because of war or the threat of war, civil war, official advice not to travel, wilful damage,
riots, sabotage, energy cuts, floods, earthquakes, fire, water damage, factory sit-ins, industrial strikes, equipment defects or (changes in) government measures. Furthermore, force majeure is also interpreted as the circumstance that suppliers which we depend on, the organiser of the exhibition or the event, or the manager of the venue in which the event was planned, have not fulfilled their (contractual) obligations towards us in terms of meeting the requirements for us to fulfil the contract, unless this would be attributable to us.
17.3 In the event of force majeure, we have the right to annul the contract with immediate effect without a need for judicial intervention and without being liable for any damages.
17.4 In the event fulfilling the contract after all would entail increased costs, these costs are for the account of the other party.
Article 18 DISSOLUTION
18.1 In the event the other party does not meet its obligations or obligation to pay us pursuant to any contract it entered into with us in full, in time or adequately, despite being sent a reminder giving the other party a reasonable term, as well as in the event the payments of the other party are suspended, if the other party has applied for a moratorium on payments, filed for bankruptcy, been put under administration, or been wound up, or if a prejudgment attachment or an attachment in execution is made on the possessions of the other party, we will be entitled to dissolve the contract or part of it without being required to send a notice of default and without judicial intervention. The above does not prejudice our other rights.
18.2 The other party is not entitled to suspend of offset its obligations.
18.3 During the execution of the agreement, we are entitled to suspend our compliance with our obligations until the other party has put up surety upon our request and to our satisfaction for its compliance with all the obligations based on the agreement. This provision equally applies if a credit arrangement was obtained.
18.4 The customer's refusal to put up the requested surety entitles us to dissolve the contract without judicial intervention.
18.5 The other party undertakes to grant us insight into its creditworthiness upon our first written request, by granting us full access to documents drawn up by a chartered accountant, failure of which entitles us to dissolve the contract without judicial intervention.
Article 19 INTELLECTUAL ABSOLUTE RIGHTS / CONFIDENTIALITY
19.1 Unless we agreed otherwise in writing, we retain all intellectual absolute rights (including copyright, patent law, trademark law, the law governing drawings and models etc.), on all our designs, drawings, documents, carriers with data or other information, quotes, pictures, drafts, models, maquettes, etc. We retain the title to the aforementioned rights, regardless of whether we paid for their production.
19.2 The intellectual absolute rights referred to in Article 19.1 cannot be copied, shown to third parties and/or made available or used in any other way without our written consent.
19.3 The other party undertakes to keep confidential any confidential information we made available to the other party. Confidential information must in any case be interpreted to mean what this Article and Article
19.4 relate to, including our company details. The other party undertakes to impose in writing a strict duty of confidentiality on its staff and/or third parties involved in the execution of this agreement, in keeping with this provision.
CONTRACTING OF WORK
Article 20 TERM OF COMPLETION AND DELIVERY
20.1 If the term set for delivery of the work is counted in working days, a working day is interpreted as any calendar day except those falling on days that are generally or locally acknowledged as statutory rest or feast days, holidays or other non-individual days off.
20.2 Working days are considered as unworkable when no work can be done by the majority of our workers and/or machines for circumstances beyond our control for at least five hours.
20.3 We have the right to extend the delivery period if we cannot be expected to deliver the work within the agreed term due to force majeure, circumstances for the account of the other party, or a change in the conditions for the execution of the work.
20.4 In the event we exceed the delivery period, we will owe the other party compensation fixed at 50 Euros per workable working day, unless another amount is agreed.
20.5 If the start or progress of the work is delayed by factors attributable to the other party, then the other party must reimburse us for any damage and costs arising as a result.
Article 21 INSPECTION AND APPROVAL
21.1 A reasonable period before the day on which we think the work will be completed, we will invite the other party in writing to proceed with the commissioning. The inspection will take place as quickly as possible, but at the latest within eight days from the aforementioned day. The inspection will be carried out by the other party in our presence and involve a check on whether the obligations from the agreement have been met.
21.2 After the work has been inspected, the other party will inform us within eight days in writing of whether the work was approved or not, listing the defects found in case of the latter.
21.3 If no written notification is sent to us within eight days from the inspection, the work is deemed to have been approved on the eighth day after the inspection.
21.4 The work is considered as approved if and insofar it is taken in use.
21.5 Minor defects that can be repaired during the defects liability period cannot constitute a reason to withhold approval.
21.6 Unless agreed otherwise, the defects liability period is thirty days and becomes effective on the work being considered completed.
Article 22 LIABILITY AFTER COMPLETION
22.1 After completion and provided the parties agreed on a defects liability period, after the defects liability period has expired we will no longer be liable for any shortfalls in the work except in the event of wilful damage, gross negligence, or when the defect could reasonably not have been spotted earlier by the other party, provided the other party notified us of the defect within a reasonable period from the discovery.
22.2 Any legal claim based on the aforementioned clause is inadmissible if it is instigated after more than five years after the defects liability period expired.
Article 23 SUSPENSION, TERMINATION OF INCOMPLETE WORK
23.1 The other party is authorised to suspend the execution of part or all of the work. Any measures that we need to take as a result of the suspension will be charged as additional work. We will charge the other party for any damage we incur as a result of the suspension.
23.2 We will not be liable for any damage caused to the work during the period of suspension.
23.3 If the work is suspended for longer than one month, we are allowed to terminate the work in incomplete condition. In that event, the other party is obliged to pay us for the part that was already carried out.
Article 24 CONTRACT EXTRAS AND CONTRACT REDUCTIONS
24.1 Contract extras and contract reductions will in any case be settled:
- in the event changes are made to the agreement, or to the conditions for executing the work;
- in the event of deviations from the provisional sums;
- in the event of deviations from the offset table quantities;
- in the event referred to in Article 24 clause 1.
24.2 Any changes will be agreed in writing. The absence of a written order does not prejudice our entitlement to offset contract extras and contract reductions.
Article 25 CONTRACTORS' ALL RISKS INSURANCE
25.1 Unless explicitly agreed to the contrary, the other party is obliged to take out Contractors' all risks (C.A.R.) insurance for the work, including insurance cover for us. We must be able to consult the terms and conditions of the policy on request at the other party's premises.
Article 26 DISPUTE SETTLEMENT PROCEDURE
26.1 All agreements which these conditions wholly or partly apply to are governed by Dutch law, unless agreed to the contrary.
26.2 Any disputes arising from a contract wholly or partly governed by the current conditions, including disputes that are only considered as a dispute by one of the parties, or disputes arising from further agreements will be adjudicated by the competent judge of 's- Hertogenbosch, unless agreed otherwise.
Article 27 LANGUAGE
27.1 The Dutch version of these conditions is the only binding text.
27.2 In the event an agreement between us and the other party drawn up in Dutch is translated, either by us, the other party or by a third party, the translation will only serve an informative purpose, without having any binding force.