GENERAL
Published by Holland Scaffold Supply BV(download)
Article 1: Applicability
1.1. These General Terms and Conditions apply to all offers made by Holland Scaffold Supply, to all agreements it enters into and to all agreements arising therefrom.
1.2. Holland Scaffold Supply, which applies these Terms and Conditions, is referred to as the supplier. The other party is called the buyer.
1.3. In the event of any conflict between the agreement between the supplier and the buyer and these Terms and Conditions, the provisions of the agreement shall prevail.
Article 2: Offers
2.1. All offers are without obligation. The supplier is entitled to withdraw from its offer up to two working weeks after receipt of the acceptance.
2.2. If the buyer provides the supplier with information, the supplier may assume that it is accurate and complete and will base his offer on this information.
2.3. The prices stated in the quotation are, unless otherwise stated, in euros, excluding VAT and other government levies, duties or taxes. The prices do not include travel, accommodation, packaging, storage and transport costs, nor do they include costs for loading and unloading and for the handling of customs formalities, unless otherwise stated in the offer.
Article 3: Confidentiality
3.1. All information provided to the buyer by or on behalf of the supplier, such as quotations, designs, images, drawings and know-how, of any nature and in any form whatsoever, is confidential and the buyer will not use it for any purpose other than the performance of the agreement. 3.2. The buyer shall not disclose or reproduce the information referred to in paragraph 1 of this article.
3.2. If the buyer violates one of the obligations referred to in paragraphs 1 and 2 of this article, he will owe an immediately due and payable penalty of € 25,000 per violation. This penalty can be claimed in addition to the statutory damages.
3.3. The buyer must return or destroy the information referred to in paragraph 1 of this article immediately upon request, within a period specified by the supplier. If this provision is violated, the buyer will owe the supplier an immediately payable penalty of €1,000 per day. This penalty can be claimed in addition to the statutory damages.
Article 4: Advice and information
4.1. The buyer cannot derive any rights from advice and information from the supplier that are not directly related to the order.
4.2. If the buyer provides the supplier with information, the supplier may assume that it is correct and complete in the performance of the agreement.
4.3. The Buyer indemnifies the Supplier against all claims by third parties in connection with the use of advice, drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of the Buyer. The buyer shall compensate the supplier for any damages suffered by the supplier, including all costs incurred for defense against these claims.
Article 5: Delivery time
5.1. The delivery times mentioned are indicative.
5.2. The delivery period only starts after agreement has been reached on all commercial and technical details, after all information, including final and approved drawings and the like, has been in the possession of the supplier, the agreed payment (or instalment) has been received and the other conditions for the execution of the order have been met.
5.3. If:
a. there are circumstances other than those known to the supplier at the time he determined the delivery period, the delivery period may be extended by the time that the supplier – taking into account his planning – needs to perform the agreement under these circumstances;
b. there are contractual extras, the delivery period can be extended by the time that the supplier – taking into account its planning – needs to have the materials and parts delivered and to carry out the contractual extras;
c. the supplier suspends its obligations, the delivery period may be extended by the time that the supplier – taking into account its planning – needs to perform the agreement after the reason for the suspension no longer applies.
Unless the buyer has evidence to the contrary, the duration of the extension of the delivery period is deemed to be necessary and to be the result of a situation as referred to above under a to c.
5.4 The Buyer shall be obliged to pay any costs incurred by the Supplier or damages suffered by the Supplier as a result of any delay in delivery as set out in paragraph 3 of this Article.
5.5 Exceeding the agreed delivery period does not entitle the buyer to compensation or dissolution of the agreement under any circumstances. The buyer indemnifies the supplier against all claims from third parties as a result of exceeding the delivery deadline.
Article 6: Moulds, models, model plates, tools, etc.
6.1. If the supplier produces moulds, models, model plates, tools and the like in the context of the performance of the contract, these are the property of the supplier, even if they have been paid for in whole or in part by the buyer. These materials are kept by the supplier for a maximum of one year after the last order, on account and at the risk of the buyer.
6.2. Moulds, models, model plates, tools and the like, provided by the buyer to the supplier, shall be kept by the supplier for a maximum of one year after the last order, on account and at the risk of the buyer. If, after the expiry of the above-mentioned period, the buyer has not requested the return of the materials and, moreover, has not collected these materials within one month of a written request from the supplier, the supplier is entitled to dispose of the materials as he sees fit.
6.3. The costs for modification, renewal and/or repair after wear and tear of the commissioned moulds, models, model plates, tools and the like are borne by the buyer.
Article 7: Quantity
Deviations of plus or minus 15% of the agreed quantity of goods are allowed. The buyer is obliged to purchase the quantities delivered within the margins referred to in the first sentence and to pay (pro rata).
Article 8: Delivery and transfer of risk
8.1. The delivery takes place when the supplier, at his business location, makes the goods available to the buyer and the buyer has notified that the goods are available. From that moment on, the buyer bears, among other things, the risk of the goods with regard to storage, loading, transport and unloading.
8.2. The buyer and the supplier can agree that the supplier is responsible for transport. In that case, the supplier has insurance that covers the risk for loading, transport and interim storage.
8.3. If a good is exchanged and the buyer keeps the good to be exchanged pending the delivery of the new good, the risk of the good to be exchanged remains with the buyer until the moment he transfers the good to the supplier. If the buyer is unable to deliver the good to be exchanged in the condition in which it was at the time the agreement was concluded, the supplier can dissolve the agreement.
Article 9: Price changes
Agreed prices are based on an undivided size or quantity. The supplier can pass on to the buyer an increase in cost-determining factors that occur after the conclusion of the agreement. The buyer is obliged to pay the price increase immediately at the request of the supplier.
Article 10: Force majeure
10.1. If the supplier fails to fulfil its obligations, this cannot be attributed to the supplier if this failure is due to force majeure.
10.2. Force majeure includes, among others, the following situations: when third parties engaged by the supplier – such as suppliers, subcontractors and transporters, or other parties on which the supplier depends – fail to fulfil their obligations or do not fulfil them in a timely manner, or when there are circumstances due to weather conditions, natural disasters, terrorism, cybercrime, disruption of the digital infrastructure, fire, power outages, loss, theft or loss of tools, materials or information, road blocks, strikes or work stoppages and import or trade restrictions.
10.3. The supplier is entitled to suspend the performance of his obligations if he is temporarily prevented from fulfilling his obligations to the buyer as a result of force majeure. As soon as the force majeure situation no longer applies, the supplier will fulfil its obligations as soon as its schedule allows.
10.4. In the event of force majeure and performance is or becomes permanently impossible, or if the temporary force majeure circumstances have lasted longer than six months, the supplier is entitled to terminate the agreement in whole or in part with immediate effect. In such cases, the buyer is entitled to terminate the contract with immediate effect, but only for that part of the obligations that the supplier has not yet fulfilled.
10.5. The parties shall not be entitled to compensation for the damages suffered or to be suffered as a result of the force majeure, suspension or termination as referred to in this article.
Article 11: Contractual extras
11.1. Changes to the work will in any case have consequences for the delivery time and will lead to contractual extras if:
a. it concerns changes in the design, specifications or contract documents;
b. the information provided by the client does not correspond to reality.
11.2. Contractual extras are calculated on the basis of the price-determining factors that apply at the time the extra work is carried out. The Client is obliged to pay the price for the contractual extras immediately upon request of the Supplier.
Article 12: Liability
12.1. In the event of an attributable failure, the supplier remains obliged to fulfil its contractual obligations, subject to Article 13.
12.2. The supplier's obligation to pay compensation – regardless of the basis – is limited to the damage for which the supplier is covered by an insurance policy taken out by him or on his behalf. However, the extent of this obligation is never greater than the amount paid out under this insurance in the case in question.
12.3. If the supplier cannot invoke paragraph 2 of this article for any reason, the obligation to pay compensation is limited to a maximum of 15% of the total agreed price (excluding VAT).
If the agreement consists of partial deliveries or partial deliveries, this obligation is limited to a maximum of 15% (excluding VAT) of the total agreed price for that part or partial delivery. In the case of continuous performance agreements, the obligation to pay compensation is limited to a maximum of 15% (excluding VAT) of the total agreed price over the last twelve months prior to the event causing the damage.
12.4. The following items are not eligible for reimbursement:
a. consequential damage. Consequential damages include, but are not limited to, business interruption, loss of production, loss of profits, fines, transportation costs, and travel and accommodation expenses;
b. damage to property that is under the care, custody or control of the insured but not in his possession. This damage includes, among other things, damage caused by or during the execution of the work to goods being worked on or to goods located in the vicinity of the place where the work is being carried out;
c. damage caused by intent or reckless negligence of auxiliary personnel or non-managerial subordinates of the Supplier.
The buyer can, if possible, insure himself for this damage.
12.5. The supplier is not obliged to compensate for damage to material supplied by or on behalf of the buyer as a result of incorrect processing.
12.6. The Buyer shall indemnify the Supplier against all claims by third parties for product liability resulting from a defect in a product supplied by the Buyer to a third party and of which the products or materials supplied by the Supplier are a part. The buyer is obliged to compensate all damage suffered by the supplier, including the (full) costs of the defence.
Article 13: Warranty and other claims
13.1. Unless otherwise agreed in writing, the Supplier guarantees the reliability of the goods delivered for a period of six months after delivery or completion, as described in the following paragraphs.
13.2. If the parties have agreed on deviating warranty conditions, the provisions of this article will remain in full force and effect, unless they conflict with those deviating warranty conditions.
13.3. If it turns out that the delivery has not been reliable, the supplier will decide within a reasonable time whether to repair or replace the delivered goods, or credit the buyer for a proportionate part of the agreed price. If the supplier opts for repair or replacement, he determines the manner and time in which this is done. If the agreed performance (also) included the processing of material supplied by the buyer, the buyer must supply new material at his own expense and risk.
13.4. Parts or materials that are repaired or replaced by the supplier must be shipped to the supplier by the buyer.
13.5. The following costs are borne by the buyer:
a. all transport or shipping costs;
b. costs for dismantling and assembly;
c. travel and accommodation costs and travel time.
13.6. In all cases, the buyer must give the supplier the opportunity to repair a defect or to redo the operation.
13.7. The supplier is only obliged to exercise the warranty if the buyer has fulfilled all his obligations.
13.8. a. The warranty does not cover defects resulting from:
− normal wear and tear;
− improper use, handling and storage;
− lack of or improper maintenance;
− installation, assembly, modification or repairs carried out by the purchaser or third parties;
− defective or unsuitable goods originating from or prescribed by the buyer;
− defective or unsuitable materials or tools used by the purchaser.
b. No warranty is given in respect of:
− goods delivered that were not new at the time of delivery;
− parts covered by a manufacturer's warranty.
13.9. The provisions of paragraphs 3 to 8 of this article shall apply mutatis mutandis to all claims of the buyer based on breach of contract, non-conformity or on any other ground.
Article 14: Duty to complain
14.1. The buyer no longer has the right to invoke a defective performance if he has not complained in writing to the supplier within fourteen days of the discovery or reasonable discovery of the defect.
14.2. The buyer must submit complaints about the invoice to the supplier in writing and within the payment period, subject to forfeiture of all rights. If the payment term is longer than thirty days, the buyer must submit his complaint in writing within thirty days of the invoice date at the latest.
Article 15: Non-possession of property
15.1. The buyer is obliged to actually take possession of the goods that are the subject of the contract at the agreed location at the end of the delivery period.
15.2. The buyer must cooperate fully and free of charge with the delivery of the goods by the supplier.
15.3. Goods that are not taken possession of are stored at the expense and risk of the buyer.
15.4. If the provisions of paragraph 1 or 2 of this article are breached, the buyer shall owe the supplier a penalty of €250 per day for each violation, up to a maximum of €25,000, after the supplier has been given notice of default. This penalty can be claimed in addition to the statutory damages.
Article 16: Payment terms
16.1. Payment is made by electronic transfer to a bank account to be designated by the supplier.
16.2. Unless otherwise agreed, payments must be made within 30 days of the invoice date.
16.3. If the buyer fails to meet its payment obligation, it is obliged to comply with a request from the supplier to make a payment offer instead of paying the agreed sum.
16.4. The right of the buyer to set off his claims against the supplier or to suspend the performance of his obligations is excluded, unless the supplier has been granted a moratorium or is bankrupt, or the statutory debt restructuring arrangement applies to the supplier.
16.5. Regardless of whether the supplier has delivered the agreed performance in full, everything that the buyer owes or will owe him under the agreement is immediately due and payable if:
a. a payment term has been exceeded;
b. the buyer has filed for bankruptcy or applied for a suspension of payment;
c. the goods or claims of the buyer have been seized;
d. the buyer (a company) has been dissolved or liquidated;
e. the buyer (a natural person) has submitted an application to be admitted to the statutory debt restructuring scheme, has been placed under guardianship or has died.
16.6. If payment is delayed, the buyer will owe interest to the supplier on that amount, counting from the day after the agreed payment date up to and including the day on which the buyer pays the relevant amount.
If the parties have not agreed on a final payment date, the interest is due from 30 days after the amount has become due. The interest rate is 12% per annum, but is equal to the statutory interest rate if it is higher. For the purpose of calculating interest, part of a month is considered to be a full month. At the end of each year, the amount on which the interest is calculated is increased by the interest due for that year.
16.7. The supplier is entitled to set off its claims against the buyer against claims that the supplier's affiliates have against the buyer. In addition, the supplier is entitled to set off its claims against the buyer against claims that companies affiliated with the supplier have against the buyer. In addition, the supplier is entitled to set off its claims against the buyer against claims against companies affiliated with the buyer. 'Affiliated companies' are all companies belonging to the same group, within the meaning of Book 2, Article 2 of the
24b of the Civil Code, and a participation within the meaning of Book 2, Article
24c of the Civil Code.
16.8. In the event of late payments, the buyer owes the supplier all extrajudicial costs, with a minimum of €75.
These costs are calculated on the basis of the following table, namely the principal plus interest:
on the first € 3,000 15%
on the amount up to € 6,000 10%
on the amount up to € 15,000 8%
on the amount up to € 60,000 5%
on the amount from € 60,000 3%
The extrajudicial costs actually incurred are due if they are higher than the above calculation.
16.9. If, in legal proceedings, a judgment is rendered in favour of the supplier, all or most of the costs incurred in connection with these proceedings shall be borne by the buyer.
Article 17: Securities
17.1. Regardless of the agreed payment terms, the buyer is obliged to provide sufficient security for payment immediately upon request and at the discretion of the supplier. If the buyer does not comply with this provision within the specified period, he is immediately in default. In that case, the supplier has the right to dissolve the agreement and recover the damage suffered from the buyer.
17.2. The supplier remains the owner of the delivered goods as long as the buyer:
a. has failed to fulfil its obligations under any agreement with the supplier;
b. has not paid claims arising from non-compliance with the above-mentioned agreements, such as damages, penalty, interest and costs.
17.3. As long as the delivered goods are subject to retention of title, the buyer may not encumber or dispose of these goods, other than in the context of his normal business activities. This provision applies under property law.
17.4. After the supplier has invoked his right of ownership, he is entitled to take back the delivered goods.
The buyer will fully cooperate with this, even if work is carried out on the delivered but not yet paid goods.
17.5. If the buyer has fulfilled his obligations in accordance with the contract after the delivery of the goods by the supplier, the right of ownership in respect of these goods is restored if the buyer does not fulfil his obligations under a contract concluded subsequently.
17.6. The supplier has a lien and a lien in respect of all goods which he has or receives from the buyer, for whatever reason, and for all claims which he has or may have against the buyer.
Article 18: Intellectual property rights
18.1. The supplier is considered to be the creator, designer or inventor of the works, models or inventions created under the agreement. The supplier therefore has the exclusive right to apply for a patent, trademark or design.
18.2. The supplier does not transfer any intellectual property rights to the buyer in the execution of the agreement.
18.3. The supplier excludes liability for damages suffered by the buyer as a result of an infringement of intellectual property rights of third parties. The buyer indemnifies the supplier against all claims by third parties in connection with an infringement of intellectual property rights.
Article 19: Transfer of rights or obligations
Buyer may not transfer or pledge any rights or obligations under any section of these Terms and Conditions or the underlying agreement(s) unless it has obtained the prior written consent of the supplier.
This provision applies under the law of ownership.
Article 20: Cancellation or termination of the contract
20.1 The Buyer is not entitled to cancel or terminate the Agreement unless the Supplier agrees. If the supplier agrees, the buyer will owe the supplier an immediately payable fee equal to the agreed price, less the savings to the supplier as a result of the termination. The fee is calculated according to the following depreciation schedule:
Cancellation received x weeks after ordering material to be produced in a factory:
1 week: payment 5% of the contract value
2-4 weeks: payment 20% of the contract value
4-8 weeks: payment 60% of the contract value
>8 weeks: payment 100% of the contract value minus residual value.
Once the materials have been processed, 100% of the contract value is charged, minus residual value.
For material from a service center's inventory, the following applies: Cancellation fee: 100% of the contract value minus residual value
20.2 If the price depends on the actual costs that the Supplier has to incur (on the basis of cost price plus profit), the compensation as referred to in the first paragraph of this article is estimated on the basis of the sum of the costs and labour and the profit that the Supplier would probably have made in the performance of the agreement.
Article 21: Applicable law and competent court
21.1 Dutch law applies. 21.2 The CISG does not apply, nor does any other international regulation that can be excluded.
21.2 The Dutch civil court with jurisdiction in the Supplier's place of business is competent to hear any disputes. The supplier may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.
21.3 These general terms and conditions are available from the Chamber of Commerce and can also be downloaded from the website of Holland Scaffold Supply. On request, we can forward it to you by e-mail or by post.