General Terms and Conditions 2KERR BV
Whenever reference is made in these General Terms and Conditions to one of the terms printed in bold type, the following definition shall be given:
General Terms and Conditions:
these General Terms and Conditions, as they were made available at the time the Agreement was entered into;
the Civil Code;
The party who uses these terms and conditions for the acceptance and execution of this Agreement;
The User’s opposite party upon entering into the Agreement to which these General Terms and Conditions apply;
The assignment agreement pursuant to which the User undertakes to perform work for the Client against payment of a fee and costs and to which the General Terms and Conditions have been declared applicable;
all days, with the exception of Saturdays, Sundays, 1 January, Easter Monday, Ascension Day, Whit Monday, Christmas Day and Boxing Day, the days that the government declares to be national holidays and the day on which H.M. the King’s birthday is officially celebrated.
Unless the General Terms and Conditions expressly provide otherwise, the following shall apply in the interpretation of the General Terms and Conditions: a reference to a person shall be deemed to include a reference to a natural person, partnership or legal entity; and the singular shall be deemed to include the plural and vice versa and a reference to a masculine form shall be deemed to include a reference to a feminine form and vice versa. The provisions of Sections 7:404 and 7:407(2) of the Dutch Civil Code shall not apply.
Article 1 – General
Article 2 – Quotations, offers
Article 3 – Contract duration, implementation deadlines, transfer of risk, implementation and amendment of agreement, price increase
Article 4 – Suspension, dissolution and early termination of the contract
Article 5 – Force majeure
Article 6 – Payment and collection costs
Article 7 – Retention of title
Article 8 – Guarantees, investigation and complaints, limitation period
Article 9 – Liability
Article 10 – Indemnity
Article 11 – Intellectual property
Article 12 – Applicable law and disputes
Article 13 – Location and change of general conditions
Article 1 – General
These terms and conditions apply to every offer, quotation and agreement between 2KERR BV, hereinafter referred to as: „Contractor“, and a Client to which Contractor has declared these terms and conditions applicable, insofar as these terms and conditions have not been explicitly deviated from by the parties in writing.
These terms and conditions shall also apply to the actions of third parties engaged by the Contractor in the context of the assignment.
The applicability of any purchase or other conditions of the Client is expressly rejected.
If one or more provisions of these general terms and conditions should at any time be wholly or partially invalid or declared null and void, the other provisions of these general terms and conditions will remain fully applicable. The Contractor and the Principal will then consult to agree on new provisions to replace the void or annulled provisions, taking into account, as much as possible, the purpose and intent of the original provisions.
If uncertainty exists regarding the interpretation of one or more provisions of these general conditions, then the explanation should be found ‚in the spirit‘ of these provisions.
If a situation arises between the parties that has not been provided for in these general terms and conditions, this situation should be assessed in the spirit of these general terms and conditions.
If the Contractor does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that the Contractor would in any way lose the right to require strict compliance with the provisions of these terms and conditions in other cases.
Article 2 – Quotations, offers
All offers and quotations from the Contractor are without obligation, unless a term for acceptance is stated in the quotation. If no acceptance period has been set, the offer will always expire after 30 days.
The contractor cannot be held to its offers or offers if the client can reasonably understand that the offers or offers, or any part thereof, contain an obvious mistake or clerical error.
The offers in a quotation are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including secret travel and accommodation costs, shipping and handling costs, unless stated otherwise.
If the acceptance deviates (whether or not on minor points) from the offer included in the offer, the contractor is not bound. In that case, the agreement will not be concluded in accordance with this deviating acceptance, unless the contractor indicates otherwise.
A composite quotation does not oblige the contractor to perform part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 3 – Contract duration, implementation periods, risk transfer, implementation and amendment of the agreement, price increase
1. The agreement between the Contractor and the Client is entered into for a definite period, unless the nature of the agreement dictates otherwise or if the parties explicitly agree otherwise in writing.
2. If a term has been agreed or stated for the performance of certain activities or for the delivery of certain goods, this is never a strict deadline. If a term is exceeded, the Client must therefore give the Contractor written notice of default. The Contractor must be offered a reasonable period of time to still execute the agreement.
3. The Contractor will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the state of the art at that time.
4. The Contractor has the right to have certain activities performed by third parties. The applicability of article 7: 404, 7: 407 paragraph 2 and 7: 409 BW is expressly excluded.
5. If work is carried out by the Contractor or third parties engaged by the Contractor in the context of the assignment at the location of the Client or a location designated by the Client, the Client shall provide the facilities reasonably desired by those employees free of charge.
6. Contractor is entitled to execute the agreement in different phases and to invoice the part thus executed separately.
7. If the agreement is performed in phases, the Contractor may suspend the performance of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase in writing.
8. The Client will ensure that all data, of which the Contractor indicates that they are necessary or of which the Client should reasonably understand that they are necessary for the performance of the agreement, are provided to the Contractor in a timely manner. If the information required for the execution of the agreement is not provided to the Contractor in time, the Contractor has the right to suspend the execution of the agreement and / or to charge the extra costs resulting from the delay to the Client according to the then usual rates. bring. The implementation period does not start earlier than after the Client has made the data available to the Contractor. The Contractor is not liable for damage, of whatever nature, because the Contractor has relied on incorrect and / or incomplete information provided by the Client.
9. If during the execution of the agreement it appears that it is necessary for a proper execution thereof to change or supplement it, then the parties will proceed to adapt the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or direction of the Client, of the competent authorities, etc., is changed and the agreement is amended in terms of quality and / or quantity as a result, this may have consequences. for what was originally agreed. As a result, the originally agreed amount can also be increased or decreased. The Contractor will provide a quotation of this in advance as much as possible. The originally stated term of execution may also be changed by an amendment to the agreement. The Client accepts the possibility of changing the agreement, including the change in price and term of execution.
10. If the agreement is amended, including an addition, the Contractor is entitled to implement it only after approval has been given by the person authorized within the Contractor and the Client has agreed to the price and other conditions stated for the implementation. , including the then to be determined time at which it will be implemented. Failure to perform or not immediately implement the amended agreement does not constitute default on the part of the Contractor and is no ground for the Client to terminate or cancel the agreement.
11. Without being in default, the Contractor can refuse a request to amend the agreement if this could have consequences in terms of quality and / or quantity, for example for the work to be performed or goods to be delivered in that context.
12. If the Client should be in default in the proper fulfillment of what he is obliged to do towards the Contractor, the Client is liable for all damage directly or indirectly on the part of the Contractor.
13. If the Contractor agrees a fixed fee or fixed price with the Client, then the Contractor is nevertheless entitled at all times to increase this fee or price without the Client being entitled in that case to terminate the agreement for that reason, if the increase in the price arises from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages, etc. or on other grounds that were not reasonably foreseeable at the time of entering into the agreement.
14. If the price increase other than as a result of an amendment to the agreement amounts to more than 10% and takes place within three months after the conclusion of the agreement, then only the Client who can rely on Title 5 Section 3 of Book 6 of the Dutch Civil Code entitled to dissolve the agreement by means of a written statement, unless the Contractor is then still willing to execute the agreement on the basis of the originally agreed amount: a) if the price increase arises from an authority or an obligation resting on the Contractor under the law; b) if it is stipulated that the delivery will take place longer than three months after the conclusion of the agreement; c) or, in the case of delivery of an item, if it has been stipulated that the delivery will take place more than three months after the purchase.
Article 4 – Suspension, dissolution and early termination of the agreement
1. The Contractor is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if the Client does not, not fully or not timely fulfill the obligations under the agreement, after the conclusion of the agreement, circumstances that have become aware of the Contractor give good ground. to fear that the Client will not fulfill its obligations, if the Client is requested to provide security for the fulfillment of its obligations under the agreement when the agreement is concluded and this security is not provided or is insufficient or if due to the delay on the part the Client can no longer be expected of the Contractor to fulfill the agreement under the originally agreed conditions.
2. In addition, the Contractor is authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement is impossible or if otherwise circumstances arise that are of such a nature that the unaltered maintenance of the agreement cannot reasonably be assumed by the Contractor. are required.
3. If the agreement is dissolved, the claims of the Contractor on the Client are immediately due and payable. If the Contractor suspends the fulfillment of the obligations, it will retain its rights under the law and agreement.
4. If the Contractor proceeds to suspension or dissolution, it is in no way obliged to compensate damage and costs incurred in any way as a result.
5. If the dissolution is attributable to the Client, the Contractor is entitled to compensation for the damage, including the costs, arising directly and indirectly as a result.
6. If the Client does not fulfill its obligations arising from the agreement and this non-compliance justifies termination, the Contractor is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or compensation, while the Client, on account of breach of contract, is obliged to pay compensation or compensation.
7. If the agreement is terminated prematurely by the Contractor, the Contractor will, in consultation with the Client, arrange for the transfer of work still to be performed to third parties. This unless the cancellation is attributable to the Client. If the transfer of the work entails additional costs for the Contractor, these will be charged to the Client. The Client is obliged to pay these costs within the specified period, unless the Contractor indicates otherwise.
8. In the event of liquidation, of (application for) suspension of payments or bankruptcy, of attachment – if and insofar as the attachment is not lifted within three months – at the expense of the Client, of debt restructuring or any other circumstance that prevents the Client from can freely dispose of its assets for longer, the Contractor is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or compensation. In that case, the claims of the Contractor on the Client are immediately due and payable.
9. If the Client cancels an order placed in whole or in part, the activities that were performed and the items ordered or prepared for this, plus any supply and delivery costs thereof and the working time reserved for the execution of the agreement, will be increased. be charged in full to the Client.
Article 5 – Force majeure
1. The Contractor is not obliged to fulfill any obligation towards the Client if he is prevented from doing so as a result of a circumstance that is not attributable to fault, and is not for his account under the law, a legal act or generally accepted views. coming.
2. In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, on which the Contractor cannot exert influence, but as a result of which the Contractor is unable to fulfill its obligations. to come. This includes strikes in the company of the Contractor or third parties. The Contractor also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after the Contractor should have fulfilled its obligation.
3. During the period that the force majeure continues, the Contractor can suspend the obligations under the agreement. If this period lasts longer than 3 months, then each of the parties is entitled to dissolve the agreement, without any obligation to pay compensation to the other party.
4. Insofar as the Contractor at the time of the commencement of force majeure has meanwhile partially fulfilled his obligations under the agreement or will be able to fulfill them, and the part fulfilled or to be fulfilled respectively has independent value, the Contractor is entitled to fulfill or fulfill the obligations already fulfilled respectively part to be invoiced separately. The Client is obliged to pay this invoice as if it were a separate agreement.
Article 6 – Payment and collection costs
1. Payment must be made in advance, in a manner to be indicated by the Contractor in the currency in which the invoice is made, unless stated otherwise by the Contractor in writing.
2. If the Client fails to pay an invoice on time, the Client is in default by operation of law. The Client then owes the statutory interest. The interest on the due amount will be calculated from the moment the Client is in default until the moment of payment of the full amount due.
3. The Contractor has the right to have the payments made by the Client stretch in the first place to reduce the costs, then to reduce the interest that has become due and finally to reduce the principal sum and the current interest. The Contractor can, without being in default as a result, refuse an offer for payment if the Client indicates a different order for the allocation of the payment. The contractor can refuse full payment of the principal sum, if the open and accrued interest and collection costs are not also paid.
4. The Client is never entitled to set off the amount owed by it to the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who cannot rely on Section 6.5.3 (Articles 231 to 247, Book 6 of the Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
5. If the Client is in default or omission in the (timely) fulfillment of its obligations, all reasonable costs incurred in obtaining settlement out of court will be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the Contractor has incurred higher collection costs that were reasonably necessary, the costs actually incurred will be eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Client. The Client also owes interest on the collection costs due.
Article 7 – Retention of title
1. The goods delivered by the Contractor within the framework of the agreement remain the property of the Contractor until the Client has properly fulfilled all obligations under the agreement (s) concluded with the Contractor.
2. The goods delivered by the Contractor that fall under the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or encumber in any other way that which falls under the retention of title.
3. The Client must always do everything that can reasonably be expected of him to safeguard the property rights of the Contractor. If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Client is obliged to immediately notify the Contractor thereof. Furthermore, the Client undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy of this insurance available to the Contractor for inspection upon first request. In the event of a payment under the insurance, the Contractor is entitled to these tokens. Insofar as necessary, the Client undertakes to the Contractor in advance to cooperate with everything that is or appears to be necessary or desirable in that context.
4. In the event that the Contractor wishes to exercise its property rights referred to in this article, the Client gives unconditional and irrevocable permission in advance to the Contractor and third parties to be designated by the Contractor to enter and return all those places where the Contractor’s property is located. to take.
Article 8 – Guarantees, research and complaints, limitation period
1. The goods to be delivered by the Contractor meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended for normal use in the Netherlands. The guarantee referred to in this article applies to items intended for use within the Netherlands. When used outside the Netherlands, the Client must verify whether the use thereof is suitable for use there and meet the conditions set for it. In that case, the Contractor can set other guarantee and other conditions with regard to the goods to be delivered or work to be performed.
2. The guarantee referred to in paragraph 1 of this article applies for a period of 1 year after delivery, unless the nature of the delivery dictates otherwise or the parties have agreed otherwise. If the guarantee provided by the Contractor concerns a good that was produced by a third party, then the guarantee is limited to that provided by the producer of the good, unless stated otherwise.
3. Any form of guarantee will lapse if a defect has arisen as a result of or ensues from injudicious or improper use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Client and / or by third parties if, without written permission from The Contractor, the Client or third parties have made or attempted to make changes to the item, other items have been attached to it that do not need to be attached or if these have been processed or processed in a manner other than the prescribed manner. The Client is also not entitled to a warranty if the defect has arisen due to or is the result of circumstances beyond the Contractor’s control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) et cetera.
4. The Client is obliged to inspect the delivered goods or have them inspected immediately at the moment that the goods are made available to him or the relevant activities have been carried out. In doing so, the Client should investigate whether the quality and / or quantity of the delivered goods corresponds with what has been agreed and meets the requirements that the parties have agreed in this respect. Any visible defects must be reported to the Contractor in writing within 2 days of delivery. Any invisible defects must be reported to the Contractor in writing immediately, but in any case no later than fourteen days after discovery thereof. The report must contain a description of the defect that is as detailed as possible, so that the Contractor is able to respond adequately. The Client must give the Contractor the opportunity to investigate a complaint or have it investigated.
5. If the Client makes a timely complaint, this does not suspend its payment obligation. In that case, the Client also remains obliged to purchase and pay for the other items ordered and that which he has instructed the Contractor to do.
6. If a defect is reported later, the Client is no longer entitled to repair, replacement or compensation.
7. If it is established that an item is defective and a timely complaint has been made in this regard, the Contractor will notify the defective item within a reasonable period of time after receipt thereof or, if return is not reasonably possible, in writing by the Client with regard to the defect, at the discretion of the Client. Contractor, or arrange for repair thereof or pay a replacement fee for this to the Client. In the event of replacement, the Client is obliged to return the replaced good to the Contractor and to transfer ownership thereof to the Contractor, unless the Contractor indicates otherwise.
8. If it is established that a complaint is unfounded, the costs arising as a result, including the investigation costs, incurred by the Contractor as a result, will be fully borne by the Client.
9. After expiry of the warranty period, all costs for repair or replacement, including administration, shipping and call-out costs, will be charged to the Client.
10. Contrary to the statutory limitation periods, the limitation period for all claims and defenses against the Contractor and the third parties involved by the Contractor in the performance of an agreement is 1 month.
Article 9 – Liability
1. If the Contractor should be liable, this liability is limited to what is regulated in this provision.
2. The Contractor is not liable for damage, of whatever nature, arising because the Contractor relied on incorrect and / or incomplete information provided by or on behalf of the Client.
3. If the Contractor should be liable for any damage, the Contractor’s liability is limited to a maximum of once the invoice value of the order, at least to that part of the order to which the liability relates.
4. The liability of the Contractor is in any case always limited to the amount paid out by his insurer, where appropriate.
5. Contractor is only liable for direct damage.
6. Direct damage is exclusively understood to mean the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to compensate the Contractor’s defective performance. to have the agreement answered, insofar as these can be attributed to the Contractor and reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions. The contractor is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage due to business interruption.
7. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of the Contractor or his managerial subordinates.
Article 10 – Indemnity
The Client indemnifies the Contractor against any claims from third parties who suffer damage in connection with the performance of the agreement and the cause of which is attributable to others than the Contractor.
If the Contractor should be sued by third parties on that basis, the Client is obliged to assist the Contractor both in and out of court and to do everything that may be expected of him in that case without delay. Should the Client fail to take adequate measures, the Contractor is entitled to do so himself without notice of default. All costs and damage on the part of the Contractor and third parties that arise as a result, are fully for the account and risk of the Client.
Article 11 – Intellectual property
The Contractor reserves the rights and powers that accrue to him on the basis of the Copyright Act and other intellectual laws and regulations. The Contractor has the right to use the knowledge gained through the performance of an agreement for other purposes, insofar as no strictly confidential information of the Client is disclosed to third parties.
Article 12 – Applicable law and disputes
All legal relationships to which the Contractor is a party are exclusively governed by Dutch law, even if an obligation is fully or partially performed 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 Contractor’s place of business has exclusive jurisdiction to hear disputes, unless the law prescribes otherwise. Nevertheless, the Contractor has the right to submit the dispute to the competent court according to the law.
The parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.
Article 13 – Location and change of general terms and conditions
These conditions have been filed with the Chamber of Commerce Arnhem.
The most recently filed version or the version that applied at the time of the establishment of the legal relationship with the Contractor is always applicable.
The Dutch text of the general terms and conditions is always decisive for the interpretation thereof.