Article 1. General
- The present terms and conditions are applicable to every offer, quotation and agreement between Esschert Design B.V., hereinafter referred to as: the “User” ”, and the Other Party to which the User has declared the present terms and conditions applicable, in so far as the parties have not explicitly deviated from the present terms and conditions in writing.
- The present terms and conditions shall also apply to all agreements with the User, where the execution thereof requires the services of third parties.
- These general terms and conditions are also written for the employees of the “User” and his management.
- The applicability of any purchasing or other terms and conditions of the Other Party shall be expressly excluded.
- If one or more stipulations in the present general terms and conditions should, at any moment, in part or in full, be null and void or declared null and void, then the other stipulations of the present general terms and conditions shall remain fully applicable. In that case, the User and the Other Party shall enter into negotiations to agree upon new stipulations replacing the null and void conditions or, as the case may be, the conditions declared null and void, whereby the purpose and the meaning of the original conditions shall be heeded as far as possible.
- If ambiguity exists regarding the explanation of one or more stipulations of these general terms and conditions, then the explanation must be given ‘in accordance the spirit’ of these stipulations.
- If a situation arises between the parties that is not provided for by these general terms and conditions, then this situation must be assessed in accordance with the spirit of these general terms and conditions.
- If the User does not always require strict compliance with these terms and conditions, this does not mean that the stipulations of these terms and conditions are not applicable, or that in other cases, the User to some degree would be deprived of the right to require strict compliance with the stipulations of these terms and conditions.
Article 2. Quotations and offers
- All quotations and offers from the User shall be free of obligation, unless a period for acceptance is stated in the offer. A quotation or offer shall expire if, in the meantime, the product to which the quotation or the offer relates, is no longer available.
- The User cannot be bound by his quotations or offers if the Other Party can reasonably understand that the quotations or offers (or a part thereof) contain an obvious error or mistake.
- The prices stated in a quotation or offer are exclusive of VAT and other government levies, and costs to be possibly incurred by executing the agreement, including travelling and accommodation expenses, shipment costs and administration costs, unless stated otherwise.
- If the acceptance (possibly in relation to subordinate items) deviates from the quantity stated in the quotation or offer, the User shall not be bound by it. In such an event, the agreement shall not be concluded in accordance with said deviating acceptance, unless the User indicates otherwise.
- A compound quotation shall not oblige user to execute part of the assignment against a corresponding part of the stated quotation. Offers or quotations are not automatically applicable to future orders.
Article 3. Duration of the contract; delivery periods, execution and changes to agreement
- The agreement between the User and the Other Party shall be entered into for an indefinite period, unless the agreement provides otherwise, or if the parties expressly agree otherwise in writing.
- If a period is agreed or stated for completing specific work or for supplying certain goods, then this is never regarded as a deadline. In the event of a period being exceeded, the Other Party must notify the User of his default in writing. In this respect, the User must be given a reasonable period to execute the agreement.
- If the User requires data from the Other Party in order to execute the agreement, the execution period shall commence after the Other Party has provided the User with said data.
- Delivery shall be made 'ex works' of the User. The Other Party must take delivery of the goods at the moment when the goods are made available. If the Other Party refuses to take delivery or fails to provide the information or instructions that are required for the delivery, the User shall be entitled to store the goods at the risk and expense of the Other Party.
- The User is entitled to use the services of third parties to perform certain work.
- The User is entitled to execute the agreement in different phases and to separately invoice the part that has already been executed.
- If the parties have agreed that the agreement will be executed in phases, the User can suspend the execution of the parts relating to a subsequent phase until the Other Party has approved the results of the previous phase in writing.
- If it is shown during the execution of the agreement that the work to be done needs to be changed and/or supplemented in order to ensure its proper execution, the parties shall adapt the agreement accordingly in due time and in mutual consultation. If the nature, scope or content of the agreement, whether or not on request or instruction of the Other Party, the competent authorities, etc., is changed, and the agreement is thus changed in qualitative and/or quantitative terms, this can also affect what was originally agreed. Consequently, the amount originally agreed can be increased or decreased. The User shall make every effort to provide a price quotation beforehand. Moreover, a change to the agreement can result in the period of execution originally stated also being changed. The Other Party accepts the fact that the agreement can be changed, including a change to the price and the period of execution.
- If the agreement is changed, or supplemented, then the User shall first be entitled to implement the agreement after approval has been received from the authorized person within the User and the Other Party has agreed to the price and other conditions stated for the execution, including the moment when implementation shall take place (still to be determined). The failure to execute or immediately execute the changed agreement does not imply that the User is in default and does not constitute justification for termination of the agreement by the Other Party. Without being in default, the User can refuse a request to change the agreement if, in qualitative and/or quantitative terms, this could for example affect the work or goods to be delivered.
- If the Other Party is in default of fulfilling his obligations towards the User, then the Other Party shall be liable for all direct or indirect loss (including costs) incurred by the User.
- If the User agrees a fixed price with the Other Party, then the User is still entitled to increase this price at any time without the Other Party being entitled to dissolve the agreement for this reason, if the increase in price is due to a power or obligation by virtue of the law or legislation, or is caused by a rise in the price of raw materials, wages, etc., or on other grounds that could not be reasonably anticipated at the time of entering into the agreement.
- If the price increase, not resulting from a change to the agreement, exceeds 10% and takes place within three months of concluding the agreement, then only the Other Party who invokes title 5 section 3 of Book 6 of the Dutch Civil Code (BW) is entitled to dissolve the agreement in writing, unless the User is still prepared to execute the agreement on the basis of that which has originally been agreed, or if the price increase is due to a power or an obligation imposed on the User by virtue of the law or if it is stipulated that the delivery shall take place more than three months after the purchase.
Article 4 Suspension, dissolution and premature termination of the agreement
- The User shall be authorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event of:
- the Other Party not complying with, not fully complying with, or not complying in a timely manner with the obligations from the agreement;
- after the agreement has been concluded, the User learns of circumstances that give adequate justification to fear that the Other Party shall not fulfil his obligations.
- the Other Party was asked to provide security to guarantee the fulfilment of his obligations by virtue of the agreement when the contract was concluded and this security has not been provided or is inadequate.
- If, as a result of delay on the part of the Other Party, the User can no longer be required to comply with the conditions originally agreed in the agreement, the User is entitled to dissolve the agreement.
- Moreover, the User is authorised to dissolve the agreement if circumstances arise of such a nature that that fulfilment of the obligations becomes impossible, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be reasonably required.
- If the agreement is dissolved, the User's claims against the Other Party shall be immediately due and payable. If the User suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
- If the User decides to suspend or dissolve the agreement, he is in no way obliged to compensate for loss and costs incurred in any way.
- If the dissolution is attributable to the Other Party, the User is entitled to compensation for the loss, including the costs, directly or indirectly incurred.
- If the Other Party fails to comply with his obligations by virtue of the agreement and this non-compliance justifies dissolution, then the User is entitled to immediately dissolve the agreement with immediate effect without any obligation on his part to pay any compensation or damages, whereas the Other Party, as a result of failing to comply with his obligations, is required to pay compensation or damages.
- If the agreement is prematurely terminated by the User, the User shall, in consultation with the Other Party, ensure that the work still to be performed is transferred to third parties. This shall be the case unless the termination is attributable to the Other Party. If the transfer of the work incurs additional costs for the User, then these shall be charged to the Other Party. The Other Party is obliged to pay these costs within the prescribed period, unless the User states otherwise.
- In the event of liquidation, (applying for) suspension of payments or bankruptcy, seizure (if and in as far as the seizure has not been cancelled within three months) at the expense of the Other Party, or debt repayment or other circumstance causing the Other Party to no longer have unfettered control over his assets, the User is free to immediately terminate the agreement with immediate effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or damages. The claims by the User towards the Other Party are, in that case, immediately due and payable.
- If the Other Party cancels a placed order in full or in part, then the goods already ordered or produced for this order, supplemented by any supply, transport and delivery costs, and labour hours allocated to the execution of the agreement, shall be charged as an integral cost to the Other Party.
Article 5. Force Majeure
- The User is not obliged to fulfil any obligation towards the Other Party if he is hindered from doing so due to a circumstance that is no fault of his own and which cannot be attributed to him by virtue of law, a legal action or generally accepted practice.
- Moreover, in addition to the provisions of the law and the case-law in this respect, force majeure shall, in the present general terms and conditions, be understood to constitute any external circumstance, be it envisaged or not, on which the User cannot exercise any influence, but which prevents the User from fulfilling his obligations. This includes strikes in the company of the User or third parties. The User shall also be entitled to invoke force majeure if the circumstance that prevents (further) fulfilment of the obligation(s) of the agreement, commences after the moment when the User should have fulfilled his obligation.
- Throughout the duration of force majeure, the User shall be entitled to suspend the fulfilment of his obligations arising from the agreement. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay compensation to the other party.
- In as far as the User has already partially fulfilled his obligations resulting from the agreement at the moment when the force majeure commenced, or shall be able to fulfil them, and in as far as intrinsic validity can be attributed to the part already fulfilled or still to be fulfilled, the User shall be entitled to invoice the part already fulfilled or still to be fulfilled. The Other Party shall be obliged to pay this invoice as if it were a separate agreement.
Article 6. Payment and collection charges
- Payment must be made within 14 days from the date of invoice, in a way to be indicated by the User and in the currency in which the goods were invoiced, unless otherwise stated in writing by the User. The User is entitled to invoice periodically.
- If the Other Party fails to fulfil his payment obligation, then Other Party shall legally be in default. In that event, the Other Party shall pay interest at 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable shall be calculated as from the moment when the Other Party is in default until the moment when the amount has been paid in full.
- The User shall be entitled to direct that the payments made by the Other Party shall first of all be assigned to reducing the costs, subsequently be assigned to reducing the interest still due, and finally be assigned to reducing the principal sum and the accrued interest.
- The User shall have the right, without this causing the User to be in default, to refuse an offer for payment, if the Other Party designates a different sequence of attribution. The User shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.
- The Other Party is never entitled to deduct that owed by him to the User.
- Contestation of the amount of an invoice shall not suspend the fulfilment of the payment obligation. The Other Party who does not invoke section 6.5.3 (articles 231 to 247 inclusive, book 6 of the Dutch Civil Code) is not entitled to suspend payment of an invoice for another reason.
- If the client fails to fulfil his obligations (in due time) or defaults on them, then all reasonable costs incurred to have all extra-judicial costs and debts paid shall be borne by the Other Party. The extra-judicial costs shall be calculated on the basis of the usual debt collection practices in the Netherlands, currently the calculation method in accordance with the Dutch Preliminary Work-II Report ('Rapport Voorwerk-II'). However, if the Contractor has incurred higher collection costs than are reasonably necessary, the actual costs are recoverable. The reasonable judicial and execution costs possibly incurred shall also be equally borne by the Other Party. The Other Party must also pay interest on the collection charges due.
Article 7. Retention of Title
- All goods delivered by the User by virtue of the agreement shall remain the property of the User until the Other Party has fulfilled all of his obligations under all agreements concluded with the User.
- Goods supplied by user falling under the retention of title by virtue of the stipulations under 1. of the present article, may not be sold on and must never be used as an instrument for payment. The Other Party shall not be authorised to pledge or encumber in any way the goods falling under the retention of title.
- The Other Party must always do everything that can be reasonably expected to protect the property rights of the User.
- If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, then the Other Party shall be obliged to immediately inform the User to this effect.
- The Other Party shall undertake to insure the goods delivered subject to retention of title and to keep them insured against loss caused by fire, explosion and water as well as against theft and to make this insurance policy available for inspection upon first being requested to do so. In the event of a payout from the insurance, the User is entitled to this money. In as far as is necessary, the Other Party already undertakes to assist the User with everything that appears to be necessary or desirable is that respect.
- In the event that the User wishes to exercise his ownership rights mentioned in the present article, the Other Party shall already give the User or third parties to be appointed by User, unconditional and irrevocable permission to access all locations where the User's property might be found and to take these goods back.
Article 8. Guarantees, inspection and complaints, limitation period
- The goods to be delivered by the User shall meet the usual requirements and standards that can reasonably be made upon them at the moment of delivery and for which they are intended during normal use in the Netherlands. The guarantee referred to in this article is applicable to goods that are intended for use within the Netherlands. In the event of use outside the Netherlands, the Other Party must verify whether this use satisfies the stipulated terms and conditions. In that event, the User can specify other guarantee terms and other conditions in respect of the goods to be delivered or work to be performed.
- The guarantee mentioned under 1 shall be valid for a period of 2 weeks following delivery, unless the nature of the supplied service or product requires otherwise, or the parties have agreed otherwise. If the guarantee supplied by the User relates to goods that are manufactured by a third party, then the guarantee is limited to that which is supplied by the manufacturer of the goods, unless otherwise stated.
- Every form of guarantee shall not apply if a defect originates as the result of injudicious or improper use, or use after the expiry date, incorrect storage or maintenance by the Other Party and/or by third parties when, without written permission from the User, the Other Party or third parties have made changes or tried to make changes to the goods, objects have been attached to the goods that should not have been attached, or if these have been processed or treated in a manner that has not been prescribed. The Other Party is not entitled to claim on the guarantee if the defect is caused by or results from circumstances that the User has no control over, including weather conditions (such as for example but not limited to, heavy rainfall or extreme temperatures) etc.
- The Other Party shall be obliged to examine the delivered goods (or to have the delivered goods examined) immediately when the goods are made available or the relevant work has been performed. In this respect, the Other Party must examine whether the quality and/or quantity of the delivered goods comply with what was agreed upon, and meet the requirements that the parties have agreed upon in this respect. Any visible defects must be reported in writing to the User within seven days of delivery. Upon being detected, non-visible defects must be immediately reported to the User in writing, at the latest, within fourteen days of delivery. The report must include a description of the defect that is as detailed as possible so that User is able to react adequately. The Other Party must provide the User with the opportunity to investigate a complaint (have a complaint investigated).
- If, in accordance with the previous paragraph, the Other Party files his complaint in due time, his obligation to pay shall not be suspended. In that case, the Other Party must still take delivery and effect payment for the ordered goods.
- If a defect is not reported in a timely manner, then the Other Party is not entitled to repair, replacement or compensation.
- If it is determined that a goods item is defective and a complaint has been submitted in a timely manner, then the User shall, according to the choice of the User, substitute the service or replace or repair the defective goods within a reasonable period after the return receipt or, if return is not reasonably possible, provide written notification about the failure to deliver by the Other Party, or pay compensation for this to the Other Party. In the event of replacement, the Other Party is obliged to return the goods to the User or to hand over ownership of the goods to the User, unless the User specifies otherwise.
- If it transpires that a complaint is unfounded, then the costs involved, including the investigation costs for the User, will be entirely borne by the Other Party.
- Upon expiry of the guarantee period, any repair or replacement costs, including administration, postage and transaction costs, shall be billed to the Other Party.
- Notwithstanding the Legal statutory limitation periods, the limitation period for all claims and means of defence against the User and third parties recruited by the User to execute an agreement, is one year.
Article 9. Liability
- If the User should be liable, then the user's liability shall be limited to the arrangements made in the present General Terms and Conditions.
- The User shall not be liable for any kind of loss caused by the User using incorrect and/or incomplete data provided by or on behalf of the Other Party.
- If the User is liable for any loss, then the liability of the User is limited to a maximum of twice the invoice value of the order, or to at least that part of the order to which the liability relates.
- In that case, the liability of the User is in any event always limited to the amount paid out by his insurer.
- The User is only liable for direct loss.
- Direct loss shall be exclusively understood to be: the reasonable costs incurred to establish the cause and the extent of the loss, in as far as establishing the cause and extent relates to loss in the sense of the present terms and conditions, the reasonable costs possibly incurred in order to ensure that the User's inadequate performance meets the conditions of the agreement, unless such inadequate performance cannot be attributed to the User, and the reasonable costs incurred to prevent or limit the loss, in as far as the Other Party demonstrates that said costs have led to the limitation of direct loss as referred to in the present general terms and conditions.
- The User shall never be liable for indirect loss, including consequential loss, loss of profit, lost savings and loss due to business stagnation.
- The limitations of liability for direct loss contained in the present terms and conditions shall not apply if the loss is due to intentional act or omission or gross negligence on the part of the User or his subordinates.
Article 10. Transfer of Risk
- The risk of loss, damage or depreciation is transferred to the Other Party at the moment when the goods are made available to the Other Party.
Article 11. Indemnification
- The Other Party shall indemnify the User against any claims filed by third parties who sustain loss that is not attributable to the User in connection with the execution of the agreement.
- If the User should be held liable by third parties, then the Other Party is obliged to do his utmost to assist and support the User, both judicially and extra-judicially, and to immediately do everything that can be reasonably expected in this respect. If the Other Party fails to take adequate measures, then the User is, without giving formal notice, entitled to do so himself. All costs and loss on the part of the User and third parties thus incurred, are for the account and risk of the Other Party.
Article 12. Intellectual property
- The User shall reserve the rights and powers to which the User is entitled by virtue of the Copyright Act and other intellectual laws and regulations. The User shall reserve the right to use the knowledge gained due to the execution of the agreement for other purposes, in as far as no confidential information shall be brought to the notice of third parties when doing so.
Article 13. Applicable court of law and disputes
- Dutch law shall apply to each and every legal relationship in which the User is a party, also if execution of an agreement takes place in part or in full abroad, or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
- The Court in the User's place of business shall have exclusive jurisdiction to hear disputes, unless the law requires otherwise. The User shall nevertheless be entitled to submit the dispute to the court deemed competent by law.
- The parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultation.
Article 14. Location of and changes to the terms and conditions
- The present terms and conditions have been filed at the office of the Chamber of Commerce in Enschede.
- The most recently filed version shall always apply, or, as the case may be, the version valid at the time when the legal relationship was entered into with the User.
- The Dutch version of these general terms and conditions prevails at all times in the event of disputes relating to the interpretation and purpose of these terms and conditions.