GENERAL TERMS AND CONDITIONS
These general terms and conditions (“General Terms and Conditions”) of 5 June 2019 are used by EMHA B.V. (hereinafter: “EMHA”) and the companies of the EMHA Group (EMHA, as well as the companies affiliated to it which use these General Terms and Conditions, each constituting a “User”).
Article 1. Definitions
The terms used in these General Terms and Conditions as defined here as follows:
1.1 Service(s): the activities (including contracts and the contracting of work) and/or services which User carries out for the Client; for example, advisory services, the combatting and prevention of vibrations and noise, carrying out (3D) measurements, alignment, calibration, repairs, assembly, treatment, modification, maintenance, monitoring, design, manufacture and installation of piping and other constructions, foundations, machinery and installations and related applications; the term “activities” used in these General Terms and Conditions is also covered by the term “Services”.
1.2 Defect: the demonstrable and reproducible failure (i) of a Product to meet the specifications of that product as agreed or as specified by User (ii) to fulfil that which has been agreed concerning a Service, or the outcome thereof.
1.3 Client: the legal or natural person acting in the course of his/her profession or business with whom User concludes an Agreement, either with or without the involvement of an intermediary.
1.4 Material: everything that User creates or has already created and supplies in the context of the implementation of the Agreement, other than Products, such as designs, drawings, reports and recommendations.
1.5 Agreement: the agreement between User and the Client on the implementation of the Services and/or the supply and/or rental of the Products.
1.6 Product(s): the property described in the Agreement; such as products (including technical products, and their parts), machines, measuring systems and constructions (including pipe constructions).
Article 2. Formation of the Agreement
2.1 User retains the right to refuse an order placed by the Client, to not confirm it, or to cancel it once it has been confirmed; providing notice as to the reason for refusal or cancellation where possible.
2.2 Where no term of validity is included in a quotation, then it is valid for (14) calendar days.
2.3 In case of inconsistency between the Agreement and the General Terms and Conditions, the Agreement prevails, unless otherwise provided in the Agreement.
2.4 These General Terms and Conditions apply to all Agreements, including all subsequent and supplementary Agreements.
2.5 If other general terms and conditions are also applicable, these General Terms and Conditions will prevail in the event of conflict unless it is indicated in these General Terms and Conditions (Article 9.2) or by User that the other general terms and conditions (in parts) prevail.
2.6 If the Agreement is concluded with or through the intervention of an intermediary, the General Terms and Conditions are deemed to have been submitted to the Client when submitted to the intermediary.
Article 3. Prices and payment
3.1 Prices for Services are only deemed “fixed” when User has specified that expressly in writing. Prices for Products are those stated at the moment the Client makes the order or those confirmed in the order confirmation.
3.2 The amounts are excluding travel time allowance, compensation for irregular working hours, travel and accommodation expenses, transport, shipping and delivery costs, visa application costs, on-call duty allowance, safety training, VAT and other government-imposed levies. These costs are charged separately. User is entitled to increase costs which have been incurred and charged by a (percentage) administration fee. User retains the right to charge for any costs connected with a quotation which was not accepted by the Customer.User retains the right to charge for any costs related to a quotation not accepted by the Client.
3.3 Unless otherwise agreed, for continuing performance contracts, User may adjust the amounts annually, in line with the relevant CBS Price Index. In case of external circumstances which increase the purchase price, User is also entitled to factor this increase in during the calendar year. The price may change between two orders.
3.4 Once-off amounts are invoiced immediately after delivery of the Products or implementation of the Services. Products which are purchased on-site from User are paid for in the manner specified by User locally. In principle, instalments are invoiced monthly in arrears.
3.5 User reserves the right to demand advance payment, guarantee or the payment of open invoices, or to carry out a credit check prior to the further implementation of the Agreement or any provisions thereof. User may also impose credit limits before the Client may place any orders, including new orders.
3.6 The Client must pay invoices without setoff or reduction within thirty (30) calendar days of the invoice date, or within the payment deadline stated on the invoice, in accordance with the directions on the invoice. In the absence of complaints regarding the invoice received within fifteen (15) calendar days of the invoice date, the invoice is deemed to have been definitively accepted.
3.7 If the Client does not pay in time, the Client is immediately in default. From that day, the Client owes interest of 12% on the amount owed or, if the statutory commercial interest rate is higher, the statutory interest rate, as well as the extrajudicial collection costs, to a minimum of 15% of the invoice amount. The Client also owes the statutory interest rate (or statutory commercial interest rate) on the collection charges owed. If legal proceedings are necessary in order to collect the invoice amount, the Client is also obliged to pay the court costs actually incurred, should the Client be ruled against. User retains the right to apply the amounts paid by the Client firstly to payment of the collection costs and the court costs, followed by the eligible interest (whether statutory commercial interest or otherwise), and then to the invoice amount.
3.8 Everything that User and/or its group companies has/have to claim from, or that it owes/they owe to the Client and/or its group companies, may be set off against that which the Client and/or its group companies may claim from or owes/owe User.
Article 4. Term and termination
4.1 If the Agreement does not include a provision concerning duration, the Agreement applies (a) for the period of supply of the Services and/or Products where Services and/or Products are supplied, and (b) where a rental agreement, to rental for a period of one (1) year, with tacit renewal for periods of one (1) year consecutively, unless one of the parties cancels by giving at least three (3) months’ notice before the end of the current period.
4.2 A fixed-term Agreement may not be cancelled by the Client early, without compensation of the damage suffered and/or costs incurred by User in relation thereto, whereby User is in any case entitled to payment of the price agreed plus the costs it has incurred as a consequence of the non-completion of the Agreement, minus the costs it has saved through the termination.
4.3 Unless otherwise agreed, User has the right to cancel a fixed-term Agreement early subject to a notice term of one (1) month and other Agreements subject to a notice term of one (1) week. However, in case of a contract for services (including contracting work) User is entitled, irrespective of the previous provision, to cancel the Agreement fully or partially with immediate effect. User also reserves this right when it cannot remedy Defects reported by the Client in accordance with Article 10.2, whereupon it cannot be bound to remedy those Defects. In addition, User has the right to cancel an Agreement with immediate effect if decisive control of the Client’s business is taken over by a third party, other than in the context of restructuring.
4.4 Without prejudice to the provisions in respect of Defects, the Client is entitled to cancel the Agreement (but not to terminate it) if User demonstrably fails imputably in the performance of the Agreement and User fails to remedy this failure within the reasonable period set, after written notice of default in which the failure and obligations (or alleged failure and obligations) are set out in detail, and a reasonable period for performance of at least fifteen (15) working days is set.
4.5 Each party is entitled to cancel the Agreement when the other party has been affected by force majeure for a period of sixty (60) or more calendar days consecutively.
4.6 Each party is entitled to either terminate or cancel the Agreement if the other party is put into liquidation or granted a suspension of payment, if the other party’s business is dissolved or wound up (for another purpose than that of reorganisation or restructuring), or if the other party ceases its activities.
4.7 If an User supplier or sub-supplier terminates, fails to perform or suspends an agreement with User, User is entitled, where replacement is not commercially viable, to cancel the Agreement, fully or partially, with immediate effect.
4.8 User is not obliged to refund sums already paid, regardless of the grounds on which the Agreement ends.
4.9 Termination of an Agreement does not give the Client the right to terminate any Agreements related thereto.
4.10 On termination of an Agreement, any amounts owed by the Client become immediately due and payable, and any rights granted to the Client lapse.
4.11 User is not obliged to payment of compensation in relation to the termination of the Agreement.
Article 5. Implementation of the Agreement (general)
5.1 Unless otherwise agreed in writing, Services will be carried out during office hours, being Monday to Friday, 7.30 a.m. to 4.15 p.m., with the exception of scheduled days off and Dutch public holidays. Services which are implemented outside these office hours at the Client’s request, are considered additional work, and may be invoiced as such.
5.2 User determines which employees and potential subcontractors are deployed in the implementation of the Agreement.
5.3 User will implement the Agreement as it sees fit. In doing so, User will follow the Client’s reasonable instructions insofar as that is, in User’s opinion, justified for the purpose of implementing the Agreement. User has no obligation of result, unless expressly agreed in writing.
5.4 User will endeavour to supply the Products and/or Services in accordance with the specifications agreed and within the timetable, delivery or completion periods stated in the Agreement. Timetables and delivery or completion periods do not imply strict deadlines; the exceeding thereof does not entail default on the part of User. Periods only commence once User has the necessary information, files and items of property of the Client at its disposal, any advance payments have been received and the remaining applicable conditions from the Agreement have been met. All costs related to delays which cannot be ascribed to User, are chargeable to the Client. User retains the right to complete any Service in phases and to supply Products in partial deliveries.
5.5 Changes to the specifications of Products and/or Services requested by the Client must be set out in writing; the Client accepts that such changes may lead to adjusted timetables and delivery periods, Products and/or Services and/or prices. In case of changed circumstances or in case of circumstances of which User only becomes aware after the conclusion of the Agreement, User retains the right to amend the Agreement accordingly, having informed the Client.
5.6 Activities falling outside of the Services as specified in the Agreement which are carried out by User at the Client’s request, or which are attributable to the Client and/or are necessary for the satisfactory fulfilment of the Services, are qualified as additional work and invoiced at the rate applicable at that time. User can never be obliged to accept additional work, nor to accept such work when not set out in writing.
5.7 User cannot be obliged to cooperate with third parties appointed by the Client. At User’s request, the Client will indicate specifically which responsibilities the third party has, and where those of User cease.
5.8 User retains the right to return information, documents, data and any other items of property to the Client on condition of payment of any outstanding sums (right of retention).
5.9 When agreed, or when necessary for the use of any delivered or completed Product, User hands over the Material, always subject to payment of outstanding amounts.
Article 6. Client responsibilities
6.1 Unless otherwise agreed, the Client itself will arrange for the required facilities, including technical facilities, infrastructure and auxiliary materials, in order to put the delivered or completed Products into operation.
6.2 The Client guarantees User that: (a) it will provide sufficient numbers of competent staff (employees and auxiliary persons); (b) the staff will provide the required cooperation, make the required contributions and take the required decisions in a timely manner; (c) all the information, documents, data and input provided by the Client which are of importance to the implementation of the Agreement (i) are correct, complete and up-to-date, (ii) do not infringe the property rights (including intellectual property rights) of third parties and (iii) are in accordance with legislation; (d) it will follow all instructions in relation to the supplied and completed Products; (d) it will provide User with all facilities and access and render the assistance required for the implementation of the Agreement; (e) all of the relevant permissions, approvals and licences will be acquired; (f) in case of deliveries outside the Netherlands, all formalities and costs for the importation of the Products in that other country will be met; (g) the person who signs the Agreement or accepts an offer on behalf of the Client, is authorised to act on behalf of the Client; the Client waives all rights concerning unauthorised representation. (h) that when employees and/or third parties engaged by the User perform work at the Customer, working conditions on site are in accordance with Dutch standards.
6.3 If the Customer does not comply with the aforementioned or its other obligations, the User has the right to suspend execution of the Agreement and to charge the costs incurred.
6.4 If the Client fails to meet the provisions of Articles 6.1 or 6.2, this is, without limitation, deemed to be creditor’s default on the part of the Client.
Article 7. Warranties
7.1 Unless expressly agreed otherwise in writing, User does not give any warranties on Products or Services (or the outcome of such Services).
7.2 In respect of all warranties, the following conditions apply at minimum: (a) User never guarantees that the Products and/or Services supplied are faultless or that all Defects may be remedied; (b) an appeal to a claim under a warranty is not possible in the cases referred to in Article 8.2; (c) an appeal to a claim under a warranty is only possible if the Client has met all of its own obligations; (d) an appeal to a claim under a warranty is only possible if the Client cooperates in the enquiry with a view to establishing whether the appeal to a claim under the warranty is justified; (e) the warranty is not transferrable; (f) the warranty does not change User’s customary case in respect of the warrantied item; (g) Defects must be reported in accordance with Article 8.1; (h) the warranty period is 6 months maximum, unless expressly stated otherwise in writing by User.
7.3 Where User provides warranties on Products (including where such is the consequence of a Service), this is under the following conditions at minimum: (a) any limitations in factory warranties take precedence over the limitations of the User warranty; (b) User does not provide any warranties on non-new Products; (c) warranties do not apply to visible Defects (see Article 9.5); (d) in case of non-visible Defects, the warranty period takes precedence over the time limit for lodging a complaint referred to in Article 9.6, but the remaining provisions of Articles 9.6, 9.7 and 9.8 continue to apply.
7.4 If User provides warranties on Services (or the outcome thereof), then this is under the following conditions at minimum: (a) the warranty involves User, in case of an appeal to a claim under the warranty in accordance with the conditions stated, deploying the means and manpower at its disposal in the Netherlands to try to remedy correctly reported Defects during the warranty period at its own expense (where activities abroad are concerned, User may charge for the hours expended and costs incurred); (b) if inspection and approval has taken place, the warranty no longer applies, unless User has expressly indicated or agreed otherwise in writing, (c) the warranty period takes precedence over the periods referred to in Article 10, but in all other respects the provisions thereof apply mutatis mutandis to the Defects observed, (d) the warranty period takes effect on the date on which the activities are approved (or are deemed to have been as such).
Article 8. Defects
8.1 Defects, sufficiently substantiated and specified in writing, must be reported to User’s contact person.
8.2 User is not obliged to remedy Defects caused by: (a) incompetent or careless use; (b) use contrary to the conditions of the Agreement, the specifications and/or the instructions, such as incorrect assembly or incorrect use of a Product; (c) maintenance contrary to the conditions of the Agreement, the specifications and/or the instructions; (d) installation, assembly, changes and/or repairs by the Client or by a third party without User’s consent; (e) linking and/or use in conjunction with property or other items, materials, auxiliary materials, or software prescribed or selected by the Client; (f) normal wear and tear, normal use or normal obsolescence of the Product.
Article 9. Specific provisions in respect of Products
9.1 Once confirmed by User, orders may not be cancelled by the Client without compensation to User of the costs, including purchasing costs, incurred in relation thereto, and of any damage, of a minimum of 25% of the value.
9.2 Delivery must take place in accordance with the INCOTERMS stated. Where no specific INCOTERMS are stated, then delivery is Ex Works. In the event of any conflict between provisions of the INCOTERMS in relation to transport (including transport costs and insurance), supply and delivery, import and the transfer or risk of the Products and provisions in relation thereto in these General Terms and Conditions, the provisions of the INCOTERMS take precedence. Moreover, the supply is governed by these General Terms and Conditions.
9.3 Supply must take place ex warehouse of User or its supplier (or sub-supplier). Unless expressly agreed otherwise in writing and regardless of whether User arranges the transport, the risk for the Products (including replacement products) passes to the Client as soon as the Products reach the first means of transport beyond User’s warehouse or its supplier (or sub-supplier).
9.4 At the risk of forfeiting rights, the Client must inspect the packaging of the Products on reception for visible Defects, and note observed Defects on the consignment note. In the absence thereof, the cargo is deemed to have been accepted with visible Defects in the packaging.
9.5 At the risk of forfeiting rights, the Client must also inspect the delivered Products on reception for any visible Defects. If the Client fails to inform User in writing within five (5) calendar days of receiving the Products that there are visible Defects, the cargo is deemed to have been accepted by the Client with visible Defects.
9.6 At the risk of forfeiting rights, the Client must report non-visible Defects to User in writing as soon as possible and within no more than one month of the moment at which the Defect is detected, or the moment at which the Client should have detected it, with an ultimate deadline of three (3) months from delivery. In the absence of timely notification, the Products are deemed to have been accepted by the Client with non-visible Defects.
9.7 If the Client observes visible or non-visible Defects and the Client informs User hereof within the applicable periods referred to above, the Client must follow User’s instructions and provide evidence of the observed Defects on request. User retains the right to inspect the Products in question. If User observes for itself that there are indeed Defects which can be attributed to User, then it will repair the Products at its own discretion, supply new Products or credit the Products in question. The Defects referred to in Article 8.2 are not Defects which may be attributed to User. If User establishes that Defects cannot be attributed to itself, the Client bears the consequences of the Defect.
9.8 The abovementioned time limits for inspection and lodging a complaint also apply to newly delivered (or redelivered) Products.
9.9 If certain Products must be withdrawn from the market, the Client will provide User every assistance it requests in relation thereto.
9.10 User may credit the withdrawn, returned or re-collected Products, with deductibility of depreciation due to damage, discolouration and/or the “old age” of the Products, to be reasonably determined by User.
Article 10. Specific provisions for Services
Article 10.1 Services – general
10.1.1 This Article 10 applies to specific Services, while its provisions apply in addition to the remaining provisions. Article 10.1 applies to all types of Services.
10.1.2 If the Client terminates the Agreement for the specific Service before the activities are fulfilled, due to other than a demonstrably attributable breach on User’s part, then the compensation of Article 4.2 applies, without prejudicing User’s other claims.
10.1.3 In principle, the activities are charged on the basis of subsequent calculation (hourly rate x number of hours spent). If a fixed price is agreed, User retains the right, in circumstances such as those referred to in Article 8.2, to charge for any additional activities and/or costs.
10.1.4 If on final settlement it appears that the total amount of any contract reductions exceeds the total amount of any contract extras, User has the right to an amount equal to 10% of the difference of those totals.
10.1.5 The activities are exclusively implemented in respect of the property and other items described in the Agreement. Deviations therefrom only fall under the activities following the written confirmation thereof by User.
10.1.6 The Customer uses and applies the result of the activities (including, for the sake of clarity, advice and Materials provided by User) at his own risk and is himself responsible for the implementation or application of the result as described therein or otherwise by User. EMHA is never liable for any damage in connection with the use of the result of the activities. Without prejudice to the other time limits for inspection and lodging a complaint included in these General Terms and Conditions, User must be notified in writing of complaints within one (1) month at the most of the implementation of activities, subject to forfeiture.
10.1.7 Compensation for the activities is owed regardless of whether the Client makes use of the products thereof.
10.1.8 Employees and third parties engaged by the User perform the work exclusively for the benefit of the Customer. They will follow the Customer’s reasonable instructions but cannot be obliged to perform work that is contrary to the assignment. The Customer is responsible for their safety and liable for any damage suffered by them during the performance of the work at the Customer. Without prejudice to the other provisions of these Terms and Conditions, the User is not liable for (property) damage caused by an employee or third party engaged by the User.
Article 10.2 Completion of Services
10.2.1 The Client is obliged to take possession of the Service (including activities, as well as the outcomes of these Services and activities) at the request of and in the presence of User, which obligation applies in any case to alignment, machine foundations on ships/boats and in buildings, repairs, maintenance, coatings (and modifications) and constructions, including piping and fitting constructions. The Client must take possession on the day on which the activities have, in User’s opinion, been completed. User will inform the Client hereof verbally or, if expressly so agreed, in writing.
10.2.2 Where agreed expressly in writing, a test of installations/items pertaining to that delivered is carried out. The test is carried out by User in the presence of the Client and must establish whether the installations/items (or the activities carried out on these) fulfil that which has been agreed. If, on the basis of the test, it is established that the installations/items fulfil that which has been agreed, possession is taken.
10.2.3 A report on that which has been delivered is drawn up, if expressly agreed or at User’s request, with this done in a form specified by User or otherwise expressly agreed.
10.2.4 After the delivery, the Client informs User – where applicable in the delivery report – whether that which has been delivered, and thereby the activities, has/have or has not/have not been approved. In addition, the Client mentions any insignificant Defects present as referred to in Article 10.2.7., as well as the Defects which give cause to the withholding of approval. If the Client gives approval, the day of approval is the day on which the notification of approval is communicated to User.
10.2.5 If the Client fails on the day of delivery to communicate that there are Defects, or if the Client fails to take possession of the delivery on that day, despite notification of the completion of the activities, then that which has been delivered as well as the activities are deemed to have been approved on that day.
10.2.6 If (i) the Client is not obliged to take possession, (ii) no delivery has been agreed, or (iii) if that delivered and the activities are not approved or are not deemed to have been approved on the basis of the foregoing paragraphs, that delivered and the activities are considered approved in all cases where the Client fails to report the presence of a not insignificant Defect within a maximum of eight (8) calendar days following User’s implementation of the activities (including repair activities).
10.2.7 Insignificant Defects, i.e. small Defects which do not affect the putting into operation of that which has been delivered, provide no reason to withhold approval.
10.2.8 If the Client reports any not insignificant Defects in a sufficiently substantiated and specified manner within the applicable period(s), User endeavours to remedy the Defects reported by the Client which can be remedied, as quickly as possible. However, where alignments and machine foundations on ships/boats and in buildings are concerned, User is never obliged to remedy Defects which occur after the Client’s approval (or implied approval).
10.2.9 The day on which that which has been delivered, and thereby also the activities, are or are deemed to have been approved, is considered to be the day on which these have been completed. In all cases, that which has been delivered is deemed to have been approved after the Client has taken possession of it.
10.2.10 That delivered is at the risk of the Client after it has been or, in accordance with the foregoing, is deemed to have been, approved. Unless expressly agreed otherwise in writing, after this moment, User is no longer liable for that delivered, or any Defects thereto.
10.2.11 Unless expressly agreed, there is no defects liability period. User is not obliged to remedy Defects, except – in case of contracting work – subject to the provisions of Article 10.6.4. If a defects liability period is agreed, the period becomes effective immediately from the day on which the activities are considered completed. User is in that case obliged to endeavour to remedy Defects occurring during the defects liability period, with the exception of Defects for which the Client is liable or responsible.
10.2.12 Before the activities have been completed, the Client may only put that which has been delivered (or any part thereof) into use, or have a third party do this, with the written consent of User and after the parties have inspected that which has been delivered or the part to be put into use. Without prejudice to the remaining provisions, damage which arises due to putting into any use contrary to the foregoing is not at User’s expense.
Article 10.3 Alignment, installations, modifications, treatments and other contract work
10.3.1 Where the alignment, installation, modification, or treatment of constructions (including piping), machines, foundations etc. takes place in respect of the Services agreed (or part thereof), the provisions in this part also apply.
10.3.2 In respect of the risk transfer of a Product or other type of item of property installed by User for the Client, the provisions of Article 9.3 apply.
Article 10.4 Maintenance, Repairs, Monitoring
10.4.1 Where maintenance, repair or the monitoring of constructions (including piping), machines, foundations or similar activity takes place in respect of the Services agreed (or part thereof), the provisions in this part also apply.
10.4.2 Once Defects or other problems relating to the property or items in question have been observed, the Client must inform User hereof as soon as possible, and within a maximum of eight (8) calendar days. The consequences of failure to report in a timely manner are the responsibility of the Client. User endeavours to remedy Defects or other problems, but cannot guarantee that Defects or other problems can in all cases be remedied.
Article 10.5 Advisory services
10.5.1 Where advisory services in respect of the Services agreed (or a part thereof) are concerned, such as the provision of advice in the area of vibration and noise, the provisions of this section also apply.
10.5.2 User determines the scope and purpose of the advisory activities. The Client may only use and apply the outcome of the activities within those limits. User does not provide any warranties in respect of the outcome of the advisory activities, such as fitness for a particular purpose.
Article 10.6 Contracting work
10.6.1 Where contracting work is concerned in respect of the Services agreed (or a part thereof), the provisions referred to in this section also apply.
10.6.2 Where design activities in addition to contracting work are concerned, Article 10.5 applies to those activities.
10.6.3 Article 10.2 applies in respect of the inspection and approval of the work.
10.6.4 The only exception to the provisions of Article 10.2.10 is that of a Defect which: (a) occurs during the defects liability period referred to in Article 10.2.11, which is reported by the Client to User within a reasonable period of its detection, and which could not reasonably have been identified by the Client on delivery, unless User can demonstrate that the Defect most likely must be attributed to a circumstance which may be ascribed to the Client, including among other circumstances those referred to in Article 8.2; (b) occurs following lapse of the defects liability period and which could not reasonably have been identified by the Client on delivery, which is reported by the Client to User within a reasonable period of its discovery, and of which the Client demonstrates that the Defect must be attributed to a circumstance which is ascribed to User, whereby circumstances such as those referred to in Article 8.2 are deemed not to be attributed to User but to the Client.
10.6.5 Any legal action pursuant to the Defect referred to in Article 10.6.4(a) is not admissible, if commenced later than six (6) months after the Client has protested or should have protested the case.
10.6.6 Any legal action pursuant to the Defect referred to in Article 10.6.4(b) is not admissible, if commenced later than one (1) year after the Client has protested or should have protested against the situation. However, where the Defect referred to must be considered a serious Defect, the legal action is not admissible if commenced after more than one-and-a-half (1.5) years. A Defect is only considered a serious Defect if that which has been delivered has become, or threatens to become, completely unfit for the purpose for which it is intended pursuant to the Agreement and this may only be remedied or prevented by taking very costly measures.
10.6.7 The provisions of Article 14 in respect of User’s liability apply in addition to Articles 10.6.4 to 10.6.6; in the event of any conflict, the provisions of this article take precedence.
10.6.8 User will warn the Client as much as possible in respect of any errors in information, documents, data, drawings and calculations received from the Client, necessary for the implementation of the activities or for any defects in and/or unsuitability of property originating with the Client. However, User will never be liable for damage as a result of failure to warn.
Article 10.7 Rental
10.7.1 Where rental is concerned in respect of the Services agreed (or a part thereof), the provisions referred to in this part also apply.
10.7.2 The User reserves the right to request a deposit in the event of damage to, destruction, loss and/or theft of the rented object. If the rented item is destroyed, lost, stolen or damaged such that it can no longer be properly used, the Client must inform User hereof without delay. In such cases, User may keep or collect the security deposit; without prejudice to User’s right to full compensation if the cost of damage is higher than the security deposit. At the end of the rental period, User will refund the security deposit, after deduction of any fees or compensation and outstanding rental instalments, to the Client’s designated bank account.
10.7.3 The Customer must inspect the hired object before use for Defects, handle it with care having due regard to normal use in business operations, adequately insure it, and maintain and use it in accordance with the instructions. As soon as any Defects or other problems arise in the rented item, the Client must report this to User without delay. The consequences of failure to report in a timely manner are the responsibility of the Client. At its own discretion, User will remedy any Defects or other problems reported in time, making a new item available or, where this is not feasible, cancel the Agreement. If circumstances such as those referred to in Article 8.2 (except 8.2(f)) arise, User is entitled to charge the costs relating to remedy and/or replacement to the Client. User is not liable for damage relating to the use of the hired object, whether by the hirer or by a third party.
10.7.4 Without User’s consent, the rented item may not be taken outside of the Netherlands.
10.7.5 The rental period is set out in the Agreement, and in the absence of a specified rental period, User is entitled to take back the rented item following prior notification. Towards the end of the rental period, the Client must hand the rented item over to User. The User reserves the right to inspect the object for damage and, in the event of damage being discovered, to charge compensation for this, possibly with settlement of the deposit amount.
Article 10.8 Secondment
10.8.1 Where in respect of the Services agreed (or a part thereof) secondment is concerned, the provisions referred to in this section also apply.
10.8.2 User will provide a member of staff for the duration of and activities set out in the Agreement. User has the right to replace a seconded staff member with a staff member holding the same qualifications, or, when the seconded staff member is required for other activities on the part of User, to cancel the Agreement in question with due observance of a notice period of one (1) week.
10.8.3 At the Client’s request, User will endeavour to replace the seconded staff member if, in the considered opinion of the Client, he/she does not possess the requisite qualifications, or if the staff member is absent for a lengthy period or cancels his/her employment with User. User does not guarantee that it can provide a replacement staff member.
10.8.4 The staff member carries out the activities during customary working hours (see Article 5.1) and as described in the Agreement. If the staff member carries out activities at the Client’s request outside of these working hours or activities other than those agreed, User may charge for this as additional work, in accordance with Article 5.6.
Article 10.9 Training sessions and courses
10.9.1 User retains the right, giving due notice to the Client, to cancel a training session or course, to postpone it or to merge it with another training session or course or to change the location in connection with the number of registrations.
10.9.2 If a training session and/or course participant cancels or does not turn up, User retains the right to charge the entire costs.
Article 11. Ownership and retention of title
11.1 All Products and any other items of property supplied by User, including samples and (electronic) files and the Material insofar as it is subject to ownership, remain the property of User until the Client has met (i) the price for those Products and other property, (ii) the costs of any activities already or as yet to be carried out in relation to those Products and other property (iii) any amount payable by the Client due to failure in the performance of the Agreement, including but not limited to interest, costs and any fines. This retention of title does not lapse merely due to the simple fact that, at a given point, User no longer has a claim in respect of the Client. For the sake of clarity: the Products which User rents to the Client remain the property of User at all times.
11.2 In relation to the Products supplied under retention of title, the rented Products and any other property, the Client is obliged: (a) to handle these with care; (b) to insure them and keep them insured against damage (including but not restricted to theft); (c) to keep them apart from other property during the period that such is possible, in the context of normal business operations; (d) not to remove and/or tape over ownership markings; (e) to neither pledge nor encumber these in any other way; (f) not to use them as a means of payment; (g) not to fasten them to other items of property, the ground or any immovable property without User’s written consent.
11.3 Products and other property supplied by User, which fall under retention of title, may only be resold by the Client in the context of normal business operations. Rented Products may never be resold. If a third party attaches the Products and/or the other property supplied under retention of title by garnishment, or wishes to establish and/or assert rights thereto, the Client is obliged to inform User thereof as soon as is reasonably possible.
11.4 Without prejudice to User’s other rights, User is entitled to take back (including but not restricted to, where applicable, detachment from other items of property, the ground or any immovable property) the Products supplied under right of retention, the rented Products and other items of property, when: (a) the Client fails to pay in a timely manner; (b) it is foreseeable that the Client cannot meet its payment obligations; (c) the Products and other property have been seized; (d) a considerable part of the Client’s assets is attached; (e) the Client requests or is granted suspension of payment; (f) the Client files a winding-up petition or has their liquidation ordered.
11.5 Every Agreement on the basis of which Products and other property supplied under retention of title are provided is deemed to be terminated following User’s taking back thereof; User may then sell the Products and other property taken back to someone else. In respect of rented Products, the Agreement is considered cancelled following User’s taking back thereof. The Client must compensate any depreciation due to damage, discolouration and/or “old age” of the Products and/or other property.
11.6 Should User exercise the rights described in this article, the Client will provide the cooperation requested by User and the Client will also give User (or a third party to be appointed by it) its unconditional and irrevocable consent and authorisation to enter any locations where User’s property is to be found, and to take back that property.
11.7 Insofar as the retention of title referred to in paragraph 1 does not exist or apply (or no longer does so), User retains an undisclosed pledge on the Products and property.
11.8 Should a Product or other item of property supplied by User under retention of title become incorporated in another item of property, that other property item, to the extent the law permits, becomes the property of User, and the provisions of this article apply to it in full. Insofar as the foregoing is not permitted by the law or has no other effect, User acquires an undisclosed pledge on the new property. If the Product or the other item of property has become part of an immovable item of property, User acquires a right of superficies as well as a preferential right to that immovable property. On request, the Client renders assistance in the further formalisation of the aforementioned rights of User. The aforesaid provision does not affect User’s right to detach the Product or property from the other property, the ground or the immovable property, as described in Article 11.4.
Article 12. Intellectual property rights
12.1 All intellectual property rights (including applications), including but not limited to trademark rights, patent rights, design rights and copyrights with regard to the Products and the Material, remain with User or its licensors, unless explicitly agreed otherwise in writing. The User is therefore entitled to use and exploit these intellectual property rights (and applications) at its own discretion.
12.2 Any arrangements to the contrary are always on condition of payment of outstanding amounts and, where applicable, any additional payments.
12.3 Subject to payment of the invoices relating to the delivery or completion of the Products, or the performance of the work, the Customer will receive a time-unlimited right to use the Product or Material and any supplied software handed over by the User to the Customer within the Customer’s own organisation. Products and/or Materials made specifically for a specific assignment may not, however, be reused without the permission of the User.
12.4 User always has the right to use the knowledge and know-how existing or created as a result of the Agreement’s implementation for its own or other purposes.
12.5 The Client will refrain from acts which infringe on User’s intellectual property rights, or which could potentially infringe these, such as putting User’s intellectual property rights (such as patents or patent applications) in its own name.
Article 13. Confidentiality
13.1 User and the Client are bound to not disclose the confidential information related to the other party which they acquire from each other or from another source in the context of the Agreement, when in possession of such information. Information is considered confidential when this is designated as such by the other party or if this follows from the type of information. User’s Material and technical knowledge is considered confidential information unless stated otherwise by User.
13.2 In respect of the confidential information, within its own organisation, the receiving party will (i) treat it confidentially, (ii) not share it with third parties, except with advisors who themselves have a duty of confidentiality or, when such is necessary in the context of legal proceedings, and (iii) only use it in the context of the implementation of the Agreement.
13.3 The following types of information are not considered confidential:
- that which is, or is becoming, generally known or publicly accessible, where this knowledge or accessibility is not the result of a breach of a duty of confidentiality;
- that which is made public on the basis of and in accordance with a statutory duty or court decision, provided the receiving party has informed the disclosing party as quickly as possible of such a duty and has given the disclosing party the opportunity of avoiding disclosure.
13.4 At the request of the party to whom the confidential information concerns, the receiving party will return or destroy the confidential information, unless the latter party is required by law to save the information or needs it for legal proceedings.
Article 14. Liability
14.1 User’s liability for the remedying of Defects is always limited to that which is stated in Article 7 (Warranties, where applicable), Article 8 (Defects), Article 9 for Products and Article 10 for Services. For any other types of defects or shortcomings in that which User delivers or completes, User is not liable.
14.2 User’s liability for damage as a consequence of an attributable failure to perform the Agreement or for any other reason whatsoever is limited to damage that is caused by the persons charged with the management of User (and therefore, for example, not for damage caused by suppliers, sub-suppliers or employees). However, the persons responsible for management are themselves never personally liable for the damage caused by User.
14.3 In all cases wherein performance remains possible and also where User has provided a warranty, User is only in default and only liable once it has received a notice of default as referred to in Article 4.4 and it has not remedied the breach (or alleged breach) within the period referred to therein.
14.4 Moreover, User’s liability is limited to compensation of direct damage and damage due to death or injury. Direct damage is defined exclusively as:
- the reasonable and demonstrable costs of damage prevention or limitation;
- the reasonable and demonstrable costs of establishing damage and liability, except in the case of an order for costs, in which case that order applies.
The Client is obliged to limit the aforementioned costs as much as possible.
14.5 User is therefore not liable for consequential damage, loss arising from lost profits, lost turnover, damage or loss of data or software, damage to property (whether or not the property is under the supervision of User), fines, loss of customers, customer claims, losses due to delays, losses arising from interruptions, reduction or cessation of business operations, insurance excesses, reputational damage or immaterial damage, among other things. The Client must insure itself adequately against damage related to construction and extension projects (Extension and Construction All Risk (CAR) insurance) on the basis of market terms, with the Client itself bearing the consequences if it fails to do so.
14.6 User’s liability is in all cases limited to the lowest of the following amounts:
- the amount that User’s insurer pays out in the case at hand;
- 15% (fifteen percent) of the payments, excluding VAT, paid by the Client to User by virtue of the Agreement from which the damage claim arises, or, in case of a continuing performance contract, 15% (fifteen percent) of the payments made by the Client to User in the period of six (6) months prior to the damage-causing event, or, if the Agreement has not been in force for very long, the payments which the Client would have paid if the Agreement had lasted six (6) months;
- an amount of € 50,000 (fifty thousand euros) for all of the damage claims together.
14.7 The abovementioned limitations on liability do not apply if and insofar as the damage is a consequence of an intentional act or gross negligence on the part of persons charged with the management of User.
14.8 Without prejudice to the time limits (including those for lodging complaints) included in the remaining provisions of these General Terms and Conditions, the Client must, at the risk of forfeiting the right to compensation, inform User of the cause of the damage as quickly as possible and no more than one (1) month of becoming familiar with it, and any claim to compensation is barred should the Client fail to claim the damage in court within six (6) months of the moment that the Client has become – or should reasonably have become – familiar with the existence of the damage.
14.9 Suppliers and sub-suppliers and third parties engaged by User have the right to invoke this article in respect of the Client. User is entitled to invoke this article in respect of any third parties which are involved in the implementation of the Agreement by or on behalf of the Client.
14.10 Force majeure, for which User is neither liable nor liable to perform (including when a warranty has been provided), here includes power failure, lack of personnel, strikes, illness of personnel, failure on the part of EMEA’s suppliers and sub-suppliers, or on the part of third parties engaged by User, to fulfil obligations properly, the loss, theft or absence of tools or materials, unforeseen changes in the applicable legislation and unforeseen government measures.
14.11 The Client compensates User and indemnifies User against any third-party claims, including the costs of legal assistance, the claims of employees, suppliers or sub-suppliers, fines and settlement sums, related to the acts and/or omissions of the Client or otherwise ascribable to the Client, including violation of the warranties referred to in Article 6.
Article 15. Other provisions
15.1 Where any provision of the Agreement and/or these General Terms and Conditions is null and void or voidable, the other provisions remain in full force. The affected provision is considered replaced by a provision which comes as close to the aim and purpose of the original provision as possible.
15.2 User has the right to change these General Terms and Conditions during the term of the Agreement. The Client must be informed in writing of such a change at least a month before the change occurs. During that month, the Client has the opportunity of raising an objection against the change(s), in the absence of which the Client is deemed to have accepted the change per the commencement date indicated. If the Client raises an objection, User may decide to continue the Agreement on the basis of the old General Terms and Conditions, or to cancel the Agreement, without being obliged to pay damages.
15.3 The legal relationship between User and the Client is not a partnership, general partnership under Dutch law (vof), cooperative or other comparable form of cooperation.
15.4 The Client may not transfer the rights and/or duties under the Agreement to third parties without User’s consent. The Client agrees in advance to the transfer by User of its rights and duties under an Agreement. Unless otherwise expressly stated in the Agreement and/or these General Terms and Conditions, third parties may not derive any rights from the Agreement and therefore may also not rely thereon.
15.5 The term “written” referred to in these General Terms and Conditions also includes transmission by email or by other electronic means, with acknowledgment of receipt.
15.6 During the term of the Agreement and for a period of twelve (12) months thereafter, the Client will not engage either directly or indirectly (via natural or legal persons affiliated to it) one or more User staff members, insofar as this/these persons has/have been involved in the implementation of the Agreement. If the Client breaches this prohibition, the Client will be charged a buyout payment of € 100,000 (one hundred thousand euros).
15.7 The data in User’s records are considered conclusive evidence, subject to proof to the contrary, of the activities carried out by User.
15.8 These General Terms and Conditions may be translated. The Dutch text will always prevail in the interpretation of the General Terms and Conditions.
15.9 Where the Client is established outside the Netherlands, the Client acknowledges that Book 6, Sections 232, 234 and 235(1) and (3) of the Dutch Civil Code apply.
15.10 If at any point a party fails to invoke a certain stipulation of the Agreement or these General Terms and Conditions, it does not thereby indicate a renunciation of that stipulation.
Article 16. Applicable law, dispute resolution
16.1 Only Dutch law applies to these General Terms and Conditions, the Agreement and any disputes arising therefrom or related thereto, with the exception of its provisions under private international law. The applicability of the 1980 Vienna Sales Convention is excluded.
16.2 The Parties will make every effort to settle any disputes that have arisen amicably. If this fails, the parties can submit their dispute after written agreement under conditions to be determined to an arbitral tribunal in the Netherlands consisting of one (1) arbitrator or three (3) arbitrators. If the parties do not opt for arbitration, only the court in the district where the User is established has jurisdiction to hear the dispute.