Smolenaers Eierliften General Terms and Conditions
Copyright: Frans Smolenaers
General Terms and Conditions Smolenaers Egg Lifts Article 1. Applicability a . These terms and conditions apply to all the offers Smolenaers Egg Lifts (registered at the Chamber of Commerce with number 14122270) makes, all the agreements it concludes and are derived from it, and this insofar as Smolenaers Egg Lifts is both supplier and contractor. b . Smolenaers Egg Lifts is designated as the contractor. The other party is designated as the client. c . In the event of a conflict between the content of the agreement concluded between the client and the contractor and these terms and conditions, the provisions of the agreement shall take precedence. Article 2. Offers a . All offers are without obligation. The contractor has the right to revoke its offer within two days after it has received acceptance. b . When the client provides information to the contractor, the contractor may assume the correctness and completeness of this information and the contractor shall base its offer on this information. c . The stated prices in the offer are expressed in euros, exclusive of sales tax (VAT) and other statutory charges or taxes. If no travel and assembly costs are stated in the offer, the prices are thereby exclusive of travel, accommodation, packaging, storage and transport costs as well as the costs of loading/unloading and adherence to customs formalities. Article 3. Confidentiality a . All of the information provided by or on behalf of the contractor to the client (including, for example, offers, designs, images, drawings and know-how) of any nature and in any form, is confidential and shall not be used by the client for any other purpose that the execution of this agreement. b . The information stated in sub a of this Article shall not be made public or reproduced by the client. c . If the client violates the obligations stated in sub a and b of this Article, the client shall owe an immediately payable penalty of 25,000 per each violation. By law, this penalty can be charged in addition to a damage compensation. d . Upon first request, the client must return or destroy the information stated in sub a of this Article within a period determined by the contractor and according to its wishes. Upon violation of this provision, the client shall owe the contractor an immediately payable penalty of € 1,000 per day. By law, this penalty can be charged in addition to a damage compensation. Article 4. Recommendations and information provided a . The client cannot derive any rights from the recommendations and information provided by the contractor that do not directly concern the assignment. b . When the client provides information to the contractor, the contractor can assume the correctness and completeness in the execution of the agreement. c . The client indemnifies the contractor against all claims made by third parties in regard to the use of the recommendations, drawings, calculations, designs, materials, brands, samples, models and such provided by or on behalf of the client. The client shall compensate the contractor for all damage, including the costs incurred in full for defence against these claims. Article 5. Delivery time / execution period a . The delivery time or the execution period provided are indicative. b . In the event of: 1. Other circumstances than were known to the contractor when submitting the delivery time or execution period, the delivery time or the execution period shall be extended with the time the contractor needs to carry out the assignment under these circumstances and also while respecting its schedule/planning. 2. Additional work. This will extend the delivery time or execution period that the contractor needs to have the materials and parts delivered and to carry out customised work while respecting its schedule/planning. 3. Suspension of obligations by the contractor shall extend the delivery time or execution period with the time it needs to carry out the assignment after the reasons for suspension have come to lapse and while respecting its schedule/planning. Except with counter evidence from the client, the duration of the extension of the delivery time or execution period shall consist of the time expected to be necessary and the result of a situation as intended in 1 through 3 stated above.
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c . The client is bound to reimburse all of the costs incurred by the contractor or damage the contractor suffers as a result of a delay in the delivery time or execution period as stated in sub c of this Article. d . In no event does exceeding the delivery time or the execution period entitle the client to a damage compensation or dissolution of the agreement. The client indemnifies the contractor against any possible claims made by third parties as a result of exceeding the delivery time or execution period. Article 6. Commissioning and risk-transfer a . Commissioning shall take place at the moment the contractor makes the object available to the client at its location and the contractor has informed the client that the object is available. From that moment on, the client shall carry, amongst others, the risk involved for the storage, loading, transport and unloading the object. b . The client and the contractor may conclude that the contractor shall provide the transport. The risk of, amongst others, the storage, loading, transport and unloading will, in this case, also be for the client. The client can choose to take out insurance against these risks. c . In the event of an exchange and the client stores the object to be exchanged in waiting for the delivery of the new object, the risk will continue to be for the account of the client until the moment it receives possession from the contractor. If the client is unable to deliver the object in the condition it was in when the agreement was concluded, the contractor can dissolve the agreement. Article 7. Price change The contractor may charge an increase in cost-determining factors that arises after the conclusion of the agreement to the client. The client is bound to the price increase. Article 8. Force majeure a . A shortcoming in the compliance with its obligations cannot be attributed to the contractor if this shortcoming is the result of force majeure. b . Force majeure is defined as, among others, the circumstances that cause the non- or untimely fulfilment of the obligations of the third partiers engaged by the contractor, such as suppliers, sub contractors and transporters or any other party that the contractor is dependent on and which includes weather conditions, natural disasters, terrorism, cyber-crime, disruption of the digital infrastructure, fire, power failure, loss, theft or loss of tools, materials or information, road blocks, strikes, work interruptions and import/export trade restrictions. c . The contractor is entitled to suspend the fulfilment of its obligations if it is temporarily hindered in doing so due to force majeure. If the force majeure situation lapses, the contractor shall fulfil its obligations as soon as its schedule permits. d . In the event of force majeure in which compliance is no longer possible on a permanent basis, or if the force majeure situation lasts longer than six months, the contractor is entitled to completely or partially dissolve the agreement immediately. In these cases, the client is entitled to immediately dissolve the agreement but only for those obligations that have not yet been fulfilled by the contractor. e . The parties are not entitled to a compensation for damage suffered or future damage as intended in this Article as the result of force majeure, suspension or dissolution. Article 9. Scope of the work a . Unless concluded otherwise in writing, the scope of the work does not include: ground, hedge, fence, demolition, foundation, concrete, carpentry, plaster, paint, wallpaper, renovation or other construction work installing the connections for gas, water, electricity, Internet or other infrastructural facilities measures to prevent or limit damage, loss or theft of objects at the work location disposal of any materials including construction materials and waste vertical or horizontal transport Article 10. Additional work a . Changes in the work shall in any case result in additional work when: there are changes to the design or the building specifications the information provided by the client does not correlate to the actual situation estimated amount deviates more than 5% b . Additional work is calculated on the basis of the price-determining factors at the moment the additional work is carried out. The client is bound to the price of the additional work.
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Article 11. Work performance a . The client shall ensure that the contractor can carry out the work undisturbed and at the concluded time and shall also ensure that the contractor has necessary facilities to be able to carry out the work, including: gas, water, electricity and Internet heating closed, dry storage space the facilities prescribed on the grounds of the Working Conditions Act and related regulations b . The client carries the risk and is liable for damage, theft or loss of the property of the contractor, the client and third parties, as well as materials intended or used for the work that are located at or near the place where the work activities are carried out or at another concluded location. c . Undiminished that which is determined in sub b of this Article, the client is bound to take out adequate insurance for the risks stated in sub b. The client must also have insurance for the operating risk of the materials used. Upon first request, the client shall provide a copy of these insurance policies and a proof of premium payment to the contractor. In the event of damage, the client is required to report this immediately to the insurer for further handling. Article 12. Commissioning of the work a . The work shall be considered as commissioned in the following cases: when the client has approved the work when the client has started using the work. If the client has started using a part of the work, that part shall be considered as commissioned if the contractor has informed the client in writing that the work is completed and the client has not responded in writing within 14 days after being informed that the work has not been approved if the client does not approve the work on the grounds of minor flaws or missing parts that can be repaired or backordered within 30 days and which do not prevent the use of the work. b . If the client does not approve of the work, the client is required to provide reasons for this in writing to the contractor. The client must give the contractor the opportunity to still complete the work. c . The client indemnifies the contractor against claims made by third parties for damage to the noncommissioned parts of the work resulting from the use of recently commissioned parts of the work. Article 13. Liability a . In case of an attributable shortcoming, the contractor is still bound to fulfil its contractual obligations while respecting Article 14. b . The obligation of the contractor to reimburse any damage on any grounds is limited to the damage amount that the contractor has concluded with the insurer. The scope of this obligation is never larger than the amount that is paid out by the insurer in this particular case. c . If the contractor does not appeal to sub b of this Article for whatever reason, the obligation to reimburse the damage is limited to a maximum of 15% of the total contract value (exclusive of VAT). If the agreement consists of parts and partial deliveries, this obligation is limited to a maximum of 15% (exclusive of VAT) of the contract value of that part or partial delivery. In the event of fixed term agreements, the obligation to reimburse damage is limited to a maximum of 15% (excluding VAT) of the owed contract value over the last twelve months prior to the event that caused the damage. d . The following cannot be designated for reimbursement: consequential damage. Consequential damage is defined as stagnation damage, product loss, lost revenue, penalties, transport costs and travel and accommodation costs damage to property in the care, custody or control of, but not owned by the insured. This damage occurs due to or during the carrying out of the work activities to property that is located near the work location. damage caused intentionally or with wilful recklessness on the part of auxiliary staff or subordinates of the contractor. The client may be able to take out an insurance against this kind of damage. e . The contractor is not bound to reimburse damage done to materials supplied by or on behalf of the client that results from inadequate operation. f . The client indemnifies the contractor against all claims made by third parties due to product liability as a result of a fault in a product that the client has supplied to a third party and which consists of products and materials supplied by the contractor. The client is bound to reimburse all of the damage suffered by the contractor in this regard, including the (full) costs of defence.
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g . The contractor shall at all times assume that the roof construction of the client us solid enough to hang from, any possible liabilities in regard to the roof construction are expressly excluded by the contractor. Article 14. Warranty and other agreements a . Unless concluded otherwise in writing, for a period of six months after the commissioning, the contractor shall warranty the proper functioning of the concluded performance, such as is further described in the following paragraphs of this Article. b . If the parties conclude deviating warranty conditions, that which is determined in this Article shall apply undiminished unless this is in conflict with those warranty conditions. c . If the concluded performance is not adequately carried out, the contractor shall decide within a reasonable term whether or not it shall still carry it out adequately or shall credit the client with a fair portion of the contract value. d . If the contractor decides to carry out the performance adequately, the contractor is free to decide the manner and time of performance. The client must offer the contractor every opportunity to do so in all cases. If the concluded performance (partially) consisted of adapting materials supplied by the client, the client is required to supply new materials at its own expense and risk. e . Parts or materials that are repaired or replaced by the contractor must be sent to the contractor by the client. f . The following are for the account of the client: a. all transport and delivery costs, b. costs for disassembly and assembly, c. travel and accommodation costs and travel hours. g . The contractor is only bound to execute the warranty when the client has met all its obligations. h . The warranty is excluded for faults that are the result of: normal wear and tear; unprofessional use; non- or incorrect maintenance; installation, assembly, adaptation or reparation by the client or third parties; faults or flaws in the property of or prescribed by the client; faults or flaws in the materials or tools used by the client There is no warranty on: supplied property that was not new at the time of delivery; the inspection and repair of the client’s property; parts that have a factory guarantee i . That which is determined in sub c through h of this Article also applies to any possible claims made by the client on the grounds of failure, non-conformity or any other grounds. Article 15. Obligation to complain a . The client cannot claim failure to perform if the client fails to inform the contractor in writing within fourteen days after having discovered or could reasonably have discovered, the failure. b . The client must submit complaints about the invoice in writing within the payment period to the contractor on penalty of the lapsing of all rights. If the payment term is longer than thirty days, the client must have submitted the complaint in writing ultimately within thirty days after the invoice date. Article 16. Uncollected goods a . The client is required, after the expiry of the delivery time or the execution period, to actually collect the object or goods concluded in the agreement and at the place concluded. b . The client is required to collaborate free of charge in order to make is possible for the contractor to make delivery. c . Uncollected goods are stored for the account and risk of the client. d . Upon violation of that which is determined is sub a or b of this Article, the client shall owe after notification by the contractor an immediately payable penalty for each violation for the amount of € 25 0 per day with a maximum of € 25,000. This penalty can be claimed in addition to a legal damage compensation. Article 17. Payment a . Payment occurs on the premises of the client or on a bank account designated by the contractor. b . Unless concluded otherwise, payment shall take place within 14 days after the invoice date. c . If the client does not fulfil its payment obligation, the client is required to fulfil a request from the contractor in lieu of payment, (instead of payment of the concluded amount). d . The right of the client to settle its claims with the contractor or suspend its fulfilment of obligations is excluded, unless in the event of suspension of payment or bankruptcy on the part of the contractor or statutory debt rescheduling applies. e . Regardless of whether the contractor has fully carried out the concluded performance, all that the client owes by way of the present agreement shall be immediately payable if: a payment period has been exceeded
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the client does not fulfil its obligations from Article 16 the bankruptcy or suspension of payment is requested for the client seizure of property or claims are made on the client the client (company) is dissolved or liquidated the client (natural person) applies for statutory debt rescheduling, goes into guardianship or has deceased f . In the event of delay in the fulfilment of payment of an amount, the client shall owe interest on that amount starting from the day after the ultimate date of concluded payment and this interest shall apply until the client has made payment in full. If the parties have not concluded an ultimate payment date, the interest shall be owed after 30 days of exigibility. The interest is 12% per year, but is equal to the statutory interest if this is higher. In calculating the interest, part of a month is considered as a full month. At the end of every year the amount on which the interest is owed is increased with the owed interest of that year. g . The contractor is entitled to settle its debts with the client by way of making claims of the client’s affiliated companies. In addition, the contractor is entitled to settle its claims made of the client with debts it owes to the client’s affiliated companies. The contractor is also entitled to settle its debts owed to the client by way of making claims of the client’s affiliated companies. Affiliated companies are defined as: all companies that belong to the same group as defined in Article 2:24b of the Dutch Civil Code (BW) and a participation as intended in Article 2:24c of the Dutch Civil Code (BW). h . If payment has occurred in an untimely fashion, the client shall owe the contractor all of the extrajudicial costs with a minimum of € 75. These costs are calculated on the basis of the following table (principle amount incl. interest): 15% on the first € 3,000 10% on higher and up to € 6,000 8% on higher and up to € 15,000 5% on higher and up to € 60,000 3% on amounts exceeding € 60,000 The actual extrajudicial costs incurred shall also be owed if these are higher than the table above i . If a court procedure partially or fully favours the contractor, all costs the contractor incurs in relation to the legal procedure shall be for the account of the client. Article 18. Assurances a . Regardless of the concluded payment conditions, the client is required, upon first request of the contractor and according to the contractor’s judgement, to provide sufficient assurance for payment. If the client does not fulfil this obligation within the stated term, the client shall be in default. In this case, the contractor is entitled to dissolve the agreement and claim damage from the client. b . The contractor remains the owner of the supplied goods as long as the client: has not fulfilled its obligations from any of the agreements with the contractor has not fulfilled claims that arise from the compliance to the above-stated agreements, such as damage, penalties, interest and costs c . As long there is a retention of title on the supplied goods, the client may not encumber or alienate these outside its normal operations. This clause has consequences pursuant to property law. d . After the contractor has revoked its retention of title, the contractor may retrieve its supplied goods. The client shall extent its collaboration in this. e . After the goods have been returned according to the agreement, and if the client has fulfilled its obligations, the retention of title shall enter into force again in regard to these goods if the client does not fulfil its obligations from an agreement concluded later. f . The contractor has a leasehold and a right retention on all goods he has received or shall receive from the client and for all claims he makes or can make of the client. Article 19. Intellectual property rights a . The contractor is designated at the maker, designer or inventor of the works, models and findings created in the context of the agreement. That is why the contractor is entitled to request exclusive patent, brand or model rights. b . The contractor does not transfer any intellectual property rights to the client in carrying out the agreement. c . If the performance to be supplied by the contractor (partially) consists of the delivery of computer programmes, the source codes are not transferred to the client. The client only receives the worldwide and permanent user licence for the computer programmes for the benefit of the normal
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use and proper functioning of the goods. The client is not permitted to transfer the license or to pass on a sub-license. Upon the sale of the goods by the client to a third party, the license shall be legally transferred to the purchaser of the goods. d . The contractor is no liable for damage the client suffers due to any claims made by third parties as a result of an infringement of intellectual property rights by third parties. The client indemnifies the contractor against any claims made by third parties in regard to an infringement of intellectual property rights. Article 20. Transfer of rights or obligations The client cannot transfer or pledge rights or obligations from any Article of the general terms and conditions of the present agreement(s) except with the prior written permission of the contractor. This clause has consequences pursuant to property law. Article 21. Termination or annulment of the agreement a . The client is not entitled to terminate or annul the agreement, unless the contractor agrees. If the contractor agrees, the client shall owe an immediately payable penalty for the amount of the concluded price, minus the savings that arise for the contractor due to termination. The compensation shall be at least 20% of the concluded price. b . When the price is made independent of the actually incurred costs (cost-plus) of the contractor, the compensation as intended in sub a of this Article increases the total costs, labour hours and profits that the contractor would have expected to earn over the duration of the assignment. Article 22. Applicable law and competent court a . Dutch law applies to this agreement. b . The United Nations Convention on Contracts for the International Sale of Goods does not apply; neither do other international rules which permit exclusion. c . Any disputes shall be brought before a Dutch civil court in the location of founding of the contractor. The contractor may deviate from this jurisdictional rule and implement statutory jurisdictional rules.