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Clause 1 – Definitions
In these general conditions the following terms have the following meaning, unless expressly indicated otherwise:
User: Frans Nooren BV, the user of the general conditions;
Other party: the user's other party;
Contract: the contract between the user and the other party;
The job: all work agreed on between the user and the other party and the materials and resources provided for the above by the user.
Clause 2 – General
2.1 The provisions of the general conditions apply to every offer and/or tender and every contract between the user and the other party concerning the performing of all work and services as well as the supply of goods by the user, insofar as parties did not deviate from the above, explicitly and in writing.
2.2 The general conditions in question also apply to all contracts with the user, for the execution of which the user will employ the services of third parties.
2.3 The applicability of general conditions of the other party is explicitly ruled out even if they would have been accepted in the framework of a former legal relationship, unless the parties have agreed otherwise, explicitly and in writing. In this case, the other party cannot claim any possible rights vis-à-vis the user with regard to general conditions used by him.
2.4 These general conditions will prevail over any general conditions of the other party at all times.
2.5 The other party is also considered to accept the applicability of these general conditions regarding future contracts with the user.
Clause 3 – Offers, tenders and contracts
3.1 All the user's offers, in any form whatsoever, are subject to contract and, unless agreed otherwise, are valid for 30 days from the date the offer was sent.
3.2 If the other party provides data, drawings, calculations etc. and/or other information to the user, the user is entitled to consider them to be accurate and to use them as a basis for his offer.
3.3 Contracts to which the user is a party, are considered to have been concluded:
a. after signing by both parties of a contract drawn up for this purpose and this from the day of signing by both parties, or;
b. after receipt and approval of the written acceptance by the other party of an offer made by the user, or;
c. if with the acceptance the other party brings up reservations or changes with regard to the offer, not before the user has notified the other party in writing of his approval of these reservations and/or changes.
3.4 Any contract will be concluded by the user under the resolutive condition that the other party – exclusively for assessment by the user – appears to be sufficiently creditworthy for the financial fulfillment of the contract.
3.5 All prices in offers and tenders are expressed in Euros and are net of sales tax, import and export duties as well as other taxes, duties, levies and packaging, whatever they are called, and are based on delivery ex factory, unless explicitly indicated otherwise.
3.6 If the offer is not accepted by the other party, then the user is entitled to charge the party who asked him to submit the offer for the expenses incurred for the above.
Clause 4 - Execution of the contract
4.1 The user will execute the contract to the best of his knowledge and ability and in accordance with the requirements of good workmanship.
4.2 The user is entitled to let third parties carry out work, if and insofar as this is required for a proper execution of the contract.
4.3 The other party will ensure that the user receives in due time all data and/or endorsements, which the user indicates are essential or which the other party should reasonably understand that they are essential for the execution of the contract. If the data and/or endorsements essential for the execution of the contract have not been submitted to the user in due time, the user is entitled to suspend the execution of the contract and/or to charge the other party for the additional expenses incurred by the delay in accordance with customary rates.
4.4 The user is not responsible for damage, of any kind and description, by his basing himself on incorrect and/or incomplete data provided by the other party, unless this incorrect or incomplete data was known to the user.
4.5 If the start or the progress of the activities is delayed by factors for which the other party is responsible, the other party will compensate the user for the costs and damages to the user resulting from the above.
4.6 The other party will ensure that the user will have at his timely disposal:
- the building in which and/or on which work is to be carried out;
- sufficient time for supply, storage and/or removal of material and auxiliary tools;
- provisions for connections for electric machinery, lighting, heating, gas, compressed air and water;
- drawings relating to the location of cables, pipes and mains.
4.7 The required electricity, gas, water and the like are at the other party's expense.
4.8 At the user's request, the other party is obliged to provide storage space for tangible assets and material free of charge.
4.9 The other party is responsible for any damage resulting from loss, theft, fire, and/or damage to tools, material and other articles belonging to the user located at the place where the work is being carried out.
4.10 The other party will hold the user harmless for all claims by third parties, in whatever way they suffer damages in connection with the execution of the contract and which damage will be at the expense of the other party.
Clause 5 – Delivery, completion
5.1 Delivery of the material will be made at the place where the user performs the work, unless otherwise agreed in writing.
5.2 The other party is bound to take delivery of the goods the moment the user delivers them to him or has them delivered, or the moment these goods are placed at his disposal as per contract.
5.3 If the other party refuses to take delivery of the goods or is remiss in providing information or instructions required for the delivery, the user is entitled to store the goods at the expense and risk of the other party.
5.4 If for the execution of the contract the user requires data from the other party, the delivery time starts from the moment the other party places the data at the disposal of the user.
5.5 If the user indicated a deadline for provisional acceptance or delivery, this is indicative. So the time for provisional acceptance or delivery time indicated by the user is never a deadline.
5.6 The user is entitled to supply the goods in partial deliveries, unless the contract states otherwise or the partial delivery has no separate value. The user is entitled to bill partial deliveries separately.
5.7 If there is additional work, the delivery time is automatically extended by the time required for this additional work to be carried out. If the additional work does not fit in with the user's plans, the work will only be completed the moment the planning allows for this.
5.8 If weather conditions prevent the work being carried out, the delivery date is adjusted according to the delay.
5.9 Exceeding the agreed delivery date, for whatever reason, will not entitle the other party to compensation, cancellation of the contract or non-fulfillment of any obligation arising from the contract or from any other agreement connected to this contract. On exceeding the agreed completion/delivery date the user will consult with the other party regarding the execution of the contract. If these consultations do not lead to an acceptable result for both parties, the other party, after he has given the user written notice of default while proposing a reasonable new deadline and the user did not meet the new deadline, is entitled to annul only the part of the contract that has not yet been executed. In that case the user is not bound to pay any compensation.
Clause 6 – Inspection, claims
6.1 The other party is obliged to have the completed and/or delivered goods inspected at the time of completion/delivery. The other party is also obliged to check out if the quality and quantity of the work carried out and/or delivered are in accordance with the contract, and that they meet the requirements customary in normal business transactions.
6.2 The incorporation and/or inspection will be done by the other party in the presence of the user and it serves to ascertain if the user has fulfilled his contractual obligations.
6.3 The user should receive written notification of any visible defects within 14 days after completion and/or delivery, on penalty of forfeiture of any claims which the other party could enforce vis-à-vis the user. The user should receive written notification of invisible defects within 8 days after discovery but at the most within six (6) months after completion and delivery, also on penalty of forfeiture of all claims which the other party could enforce vis-à-vis the user.
6.4 The user should be given the opportunity to verify any claims submitted.
6.5 If a complaint has been lodged in due time and if in the user's opinion the claims are justified, the user will rectify the defects and/or shortcomings and/or replace the delivered goods within a reasonable time. However, the other party is still liable for payment for the work carried out and/or the delivered goods.
6.6 If a complaint is not lodged in due time or if the other party has started using the material installed, carried out or supplied by the user, the work will be deemed to have been carried out properly.
6.7 If it is no longer possible and/or advisable to perform the work as agreed, the user will only be liable within the limits of the provisions under "Liability" as referred to below.
Clause 7 – Samples and models
7.1 If a sample, model or illustration was shown or given to the other party, then this is presumed to have been shown only as an indication without the object having to conform to the goods, unless there is an explicit written agreement that the object should conform to the above.
7.2 If the surface area or other measurements and indications are mentioned in the contract, then these are also considered to be meant as indications only, unless they are required for the work to be performed. Surface areas are determined in full square meters. Saved spaces are included in the surface area and are not deducted.
7.3 The figures, measurements, weights or descriptions included in a catalogue/offer serve only as an indication without their having to conform to the above, unless there is an explicit written agreement that they should conform to the above. Printer's errors can never give cause for any complaints.
Clause 8 – Compensation, price and costs
8.1 Before starting work the user is entitled to charge an advance payment of 40% of the tender price.
8.2 If the user agreed on a fixed price with the other party, the user is nevertheless entitled to raise the price in the following cases.
8.3 If no fixed price has been agreed, the price will be determined on a time-spent basis or parts thereof. The price of the goods is determined according to the user's price list as of the date of the contract. The hourly rate is calculated using the user's usual hourly rates, valid for the period in which the work is done, unless a deviating hourly rate has been agreed.
8.4 The user is entitled to raise the agreed price if price changes occur after the date of conclusion of the contract, for instance for raw materials, transportation, import duties, national insurance contributions, taxes, duties, levies and salaries, as well as, but not restricted to, exchange rates. If the price increase exceeds 10% of the originally agreed total price, the other party is entitled to cancel the contract.
Clause 9 – Changes to the contract
9.1 If during the execution of the contract it appears that for its adequate execution it is necessary to change and/or to supplement the work to be performed, the parties will modify the contract accordingly by mutual and timely consultation.
9.2 If for a modification and/or a supplement in the contract the user is required to make new drawings, calculations and the like, the user is entitled to charge the other party for the costs involved with the above.
9.3 If a fixed price has been agreed, the user will indicate to what extent the change and/or supplement to the contract results in an exceeding of the fixed price. Exceeding the agreed fixed price will be considered as additional work. The additional work to be charged will be calculated based on the prices in force at the time that the additional work was performed.
Clause 10 - Payment
10.1 Payment should be made within 30 days after the billing date in a manner to be indicated by the user in the currency as billed. Objections to the amount of a bill do not defer the obligation to pay. Any objections regarding the bill are to be submitted in writing to the user by the other party within 8 days after receipt.
10.2 If the other party fails to make the payment within the period of 30 days, he is ipso jure in default. Then the other party will owe interest of 1% per month or a part thereof, unless the statutory interest rate and/or the statutory commercial interest is higher, in which case the higher interest applies. The interest for the amount due and payable will be calculated from the date the other party is in default up to the date of payment of the full amount.
10.3 In case of winding-up, bankruptcy petition, acceptance to debt restructuring by virtue of the Debt Rescheduling (Natural Persons) Act, (temporary) moratorium on payments or attachment of goods of the other party, the user's claims from the other party are immediately payable.
10.4 Payments go to reduce the costs in the first place, then they reduce the accumulated interest and finally they reduce the main amount and the current interest.
10.5 Payment should be made without any discount or deduction.
Clause 11 – Collection charges
11.1 If the other party is in default with regard to fulfilling his obligations, all reasonable costs to obtain payment out-of-court are at his expense. In any case, if it is a monetary claim the collection charges are at the other party's expense. The collection charges are calculated according to the collection rates as recommended by the Netherlands Bar Association in collection matters, with a minimum of € 350.-.
11.2 If the user's costs were higher, which were reasonably necessary, these costs too will be at the other party's expense. Any reasonable legal and execution costs will also be charged to the other party.
Clause 12 – Guarantee
12.1 A guarantee on work performed applies only if the parties explicitly agreed on this in the contract.
12.2 A guarantee on work performed refers to the handling, impregnating and injecting of walls, floors and streets against liquids. A guarantee for watertight sealing for 6 months applies only to parts treated by the user.
12.3 There is no guarantee for defects resulting from normal wear and tear, improper use, lack of or improper maintenance, installation, assembly, modification or repairs by the other party or by third parties. Also no guarantee is provided for goods supplied which were not new at the time of delivery.
12.4 In the framework of a guarantee that was granted, the other party can only claim repair of the work performed.
12.5 As long as the other party has not fulfilled its contractual obligations, he cannot make an appeal on this guarantee clause.
12.6 In all cases the other party is bound to give the user the opportunity to repair any defect.
Clause 13 – Suspension and cancellation
13.1 The user is entitled to suspend fulfillment of the obligations or to cancel the contract, if:
- the other party does not fulfill his obligations in the contract completely or on time;
- after concluding the contract the user becomes aware of circumstances giving him grounds to suspect that the other party will not fulfill his obligations completely or on time. If there are sufficient grounds to suspect the other party will fulfill his obligations only partially and inadequately, suspension is permitted insofar as this is justified by the failure.
- on concluding the contract the other party was asked to provide collateral for the fulfillment of his obligations in the contract and this collateral does not materialize or is insufficient. The moment collateral has been provided the right to suspension is cancelled, unless it causes an unreasonable delay in the fulfillment.
13.2 Furthermore the user is entitled to cancel the contract if circumstances evolve making it impossible to fulfill the contract or can no longer reasonably be required by standards of reasonableness or equity or if other circumstances evolve that unchanged maintaining of the contract cannot reasonably be expected.
13.3 If the contract is cancelled the user's claims from the other party are due and payable forthwith. If the user suspends the fulfillment of his obligations, he retains his rights by law and by the contract.
13.4 The user retains his right at all times to claim compensation.
Clause 14 – Cancellation
14.1 If the other party cancels the contract, according to the following arrangement he is bound to pay the user a certain percentage of the agreed price (including sales tax) as cancellation charges, without prejudice to the right to full compensation, including loss of profit;
- on cancellation up to 4 weeks before planned delivery 15%;
- on cancellation up to 2 weeks before planned delivery 30%;
- on cancellation up to 1 week before planned delivery 45%;
- on cancellation less than 1 week before planned delivery 60%.
14.2 If an hourly rate or half-day rate has been agreed, the user will decide on what reasonable agreed price should apply to this cancellation arrangement. So the user must estimate the number of hours or half-days that would have been charged in case of non-cancellation of the contract.
14.3 If on cancellation the other party refuses to take back goods already bought by the user, such as raw materials and other goods, whether or not treated or processed, the other party is bound to compensate the user for all costs arising from the above.
14.4 Cancellation should be done by registered letter.
Clause 15 – Liability
15.1 If the user's products are defective, the user's liability towards the other party is limited to the provisions in these conditions under "Guarantee".
15.2 Without prejudice to the liability by virtue of the contract, the user is liable for damage to the work during the performing of work, unless this damage is the result of extraordinary circumstances, against the harmful consequences of which, in connection with the nature of the work, the user was not obliged to take appropriate action and it would be unreasonable to make him bear the costs for this.
15.3 The use will never be liable for goods supplied by him and work performed outside the Netherlands.
15.4 The use will never be liable for damage arising from advice that was given.
15.5 The other party is responsible for structures and working methods prescribed by him or on his behalf, as well as for orders and/or instructions given by him or on his behalf.
15.6 If building materials or means made available by the other party or prescribed by him are defective, the other party is liable for the resulting direct or any future consequential damage.
15.7 The goods supplied by the user should meet the technical requirements, environmental standards and specifications stipulated under Netherlands law at the time of the conclusion of the contract.
The user is not liable for rejected material or means if said rejection is a result of environmental legislation/regulations that were changed after conclusion of the contract.
The user is not liable for rejected material or means if said rejection is a result of environmental legislation/regulations that were changed after conclusion of the contract.
15.8 The user will never be liable for any existence of legally proscribed substances or their effects on or in the supplied goods or raw materials, of which the user was not aware or could not have been aware at the time of execution of the contract.
15.9 The user will never be liable for damage resulting from defective construction or quality of the parts to be used.
15.10 The other party is aware of and explicitly agrees to the means applied by the user for:
- both curative and preventive treatment of wood against wood-damaging insects and/or mildews with wood preservation substances;
- the repair and/or strengthening of wooden structures by applying polymer chemical restoration technique;
- treating concrete against decay;
- cleaning and treating of outside walls and other wall structures against mildews, rising and/or seeping moisture.
15.11 The user will never be liable for damage to the work resulting from work performed or deliveries effected by the other party or on his behalf by third parties.
15.12 If the user is liable for direct damage, this liability is limited to the amount of the payment made by the user's insurer, or at least the amount on the invoice, or at least the part of the order referring to the liability.
15.13 Direct damage shall be taken to mean exclusively:
- reasonable costs for determining the cause and the extent of the damage, insofar as this refers to damage as meant in these conditions;
- any reasonable expenses incurred so that the user's defective work complies with the contract, unless this defect cannot be attributed to the user;
- reasonable expenses incurred for preventing or limiting damage, insofar as the other party can demonstrate that these expenses helped to limit direct damage as referred to in these general conditions.
15.14 The user will never be liable for indirect damage, including consequential damage, loss of profits, lost savings and/or damage by interruption of operations.
15.15 The user should receive written notification on cases of damage within 3 weeks after discovery. If this period is exceeded, the other party loses all and any claims arising from possible current or future damage sustained by him.
Clause 16 – Force majeure
16.1 The parties are not obliged to comply with any obligation, if they are prevented from doing so by circumstances that cannot be attributed to gross negligence or intention by the party who invokes this and which cannot be charged to him either legally, by a juristic act or by generally accepted practice.
16.2 Force majeure in these general conditions shall be taken to mean, besides its meaning accepted by law and in legal precedents, all external causes, either anticipated or not, on which the user has no influence, and making it impossible for the user to meet his obligations; work stoppages in the user's company, staff illness, traffic obstructions, frost, rain, including discontinuation of delivery of materials by suppliers.
16.3 The user is also entitled to invoke force majeure if the condition preventing (further) compliance commences after the user was supposed to have fulfilled his contract.
16.4 During the period of the force majeure the parties are entitled to suspend their obligations in the contract. If this period exceeds 2 months, each of the parties is entitled to have the contract cancelled, without an obligation for damage compensation to the other party.
16.5 If at the start of the force majeure the user has in the meantime partially fulfilled his obligations in the contract or he is able to fulfill them and the fulfilled part or the part to be fulfilled, respectively, has a separate value, the user is entitled to separately bill for the fulfilled part or the part to be fulfilled, respectively. The other party is bound to settle this bill as for a separate contract.
Clause 17 – Intellectual Property and Copyrights
17.1 Without prejudice to the provisions in these general conditions, the user retains the rights and powers he is entitled to, based on the copyright law and the intellectual property rights, unless otherwise agreed in writing.
17.2 The rights referred to in sub-clause 1 of this clause remain the property of the user, irrespective of whether for the production of the goods upon which this is based the other party was charged. It is not permitted to reproduce or show the data to third parties without explicit written permission by the user. Any violation of this provision will cost the other party an immediately payable fine of € 25,000.- per violation. Besides compensation, this fine is claimable by law.
17.3 At first request the other party should return the data (affairs) as referred to above in sub-clause 2 within the period specified by the user. For any violation of the above the other party will be charged an immediately payable fine to the user of € 1000.- per diem for the duration of the violation. Besides compensation, this fine is claimable by law.
17.4 The user retains the right to use any additional know-how acquired through the performed work for other purposes, as long as in doing so no confidential information is passed on to third parties.
Clause 18 – Nondisclosure
18.1 Both parties are bound to nondisclosure of all confidential information acquired from each other or from other sources in the framework of the contract. Information is considered as confidential if specified as such by a party or if it ensues from the nature of the information.
18.2 If based on a legal provision or a court decision the user is obliged to pass on confidential information to a third party indicated by law or the authorized judge and the user is not entitled to rely in this matter on a legal right to decline to give evidence or a right to refuse as recognized or permitted by the authorized judge, the user is not obliged to pay compensation or indemnification and the other party is not entitled to cancel the contract based on any damage this has caused.
Clause 19 - Provisions regarding orders by user to third parties
19.1 In these special provisions the following terms mean as follows:
User: Frans Nooren BV, client, user of the special provisions;
Contractor: the other party to the user;
Contract: the contract between the user and the contractor.
19.2 At the user's first request the contractor is bound to provide a written statement with all employees assigned or to be assigned by the contractor for performing the work as ordered by the user.
19.3 At the user's first request the contractor will furnish for inspection the payroll with the National Insurance nos./Citizen Service Number (bsn), a copy of proof of identity and work permits of the employers, as well as written notification informing the user where, when and the hours the workers are employed.
19.4 With respect to the user the contractor guarantees the timely fulfillment of all his statutory obligations with regard to the abovementioned employees.
19.5 At the user's first request the contractor is obliged to furnish him the following data in writing:
- the name and address of the industrial insurance board with whom the contractor is registered;
- valid proof of registration with the IIB;
- the contractor's wage tax number.
19.6 At the user's first request the contractor is obliged to submit a declaration regarding payments to the IIB and a declaration regarding the payment of wage tax, all the above as laid down in the WKA (Wages and Salaries Tax and Social Security Contributions (Liability of Subcontractors) Act) guidelines.
19.7 The contractor is obliged to keep adequate records with regard to payments to the IIB and the collector of direct taxes regarding the aforementioned employees.
19.8 The user retains the right at all times to withhold the contributions and wage tax owed by the user for the work from the contract price or purchase price to be paid to the contractor and the IBB in question or the aforementioned collector, respectively, on behalf of the contractor.
19.9 Without prejudice to the provisions in the above sub-clause, at the user's first request the contractor is obliged to open a G-account for the work ordered as referred to in the WKA. The user will then be entitled to transfer to the above G-account the part of the contract price or purchase price to be paid by her to the contractor, made up of amounts to be paid for contributions and wage tax with regard to the employees referred to in sub-clause 1. This transfer will serve as a discharge for the user for the part of the contract or purchase price in question. If and as long as the contractor has not sent the user written notification of the opening of the G-account, the user will be entitled to withhold the amount concerned on the contract price or purchase price.
19.10 The contractor is not entitled to authorize third parties to carry out any part of the contract without receiving written permission from the user.
19.11 If the contractor authorizes a third party to carry out any part of the contract, after approval by the user, he will do this by virtue of a contract in which sub-clauses 1 to 11 inclusive are included mutatis mutandis.
19.12 In case of nonperformance by the contractor of one of the aforementioned obligations referred to in this clause, the contractor will forfeit to the user an immediately payable fine to the amount of ten percent (10%) of the contract price or purchase price applicable between the user and the contractor, without prejudice to the right of the user to also cancel the contract and to claim damages.
FINAL PROVISIONS
Clause 20 – Translations of these general conditions
Only the Dutch version of these conditions is legally valid.
If a translation deviates in any way, then the Dutch text will prevail.
Clause 21 – Disputes, applicable law
21.1 The competent court in the place of business of the user is exclusively authorized to take cognizance of disputes. Nevertheless the user is entitled to bring the dispute before a Court of Arbitration.
21.2 Dutch law applies to any contract between the user and the other party.
Clause 22 – Changing the general conditions
The user is entitled to make changes in these conditions. These changes will enter into force the moment the changed conditions have been deposited with the Chamber of Commerce and Industry in the region where the user is established.
Clause 23 – Location of the general conditions
These general conditions have been deposited at the offices of the Chamber of Commerce and Industry for Groningen at Veendam under registration number 2326262.
Annex(es):
Algemene voorwaarden Frans Nooren BV
Allgemeine Geschäftsbedingungen
