General terms and conditions
GENERAL TERMS AND CONDITIONS
Of the private limited company Praxas B.V., hereinafter referred to as the “user” (of these General Terms and Conditions), with its registered office and principal place of business in Breda, filed at the Chamber of Commerce in Breda.
Article 1 Definitions
1.1 In these General Terms and Conditions, the following terms are used with the meanings given below, unless explicitly indicated otherwise: - User: the user of the General Terms and Conditions (Praxas B.V.); - Other Party: the purchaser of goods (of User), acting in the practise of a profession or running of a business;
Article 2 Applicability
2.1 These General Terms and Conditions are applicable to and form part of all offers (offers/quotes) for, acceptance of and all contracts concluded between User and Other Party for the purpose of the sale (and delivery) of goods, in the broadest sense. The conclusion of a contract (of sale) implies the Other Party’s unconditional acceptance of these General Terms and Conditions. The Other Party with which a contract will once have been concluded under these General Terms and Conditions will thus consent to the applicability of these Terms and Conditions (also) to subsequent contracts between User and Other Party (yet to be concluded).
2.2 Any of the Other Party’s own general terms and conditions will not be applicable. In case the Other Party refers to its own or other general terms and conditions in its acceptance, the applicability thereof will be expressly rejected. The User’s General Terms and Conditions will therefore prevail at all times over those (possibly) used by the Other Party.
2.3 Should the competent court be of the opinion that any provision of these General Terms and Conditions is not applicable or is void, voidable or in conflict with public order or the law, only that provision will (or may) be considered as not having been written. For the rest, these General Terms and Conditions will nevertheless remain fully in force. In that case, the parties must make an arrangement which does as much justice as possible to the purpose and tenor of the provision or provisions set aside.
2.4 Departures from these General Terms and Conditions will be valid only if User and Other Party have explicitly agreed to them in writing. Departures agreed in this way will not apply automatically in any way to following contracts as well, unless such should explicitly be agreed in writing. Should the terms of a separate contract or offer depart from or be contrary to the provisions in these General Terms and Conditions, the terms of the contract or offer in question will prevail.
2.5 In all cases in which a contract with the other party ends, these General Terms and Conditions will continue to govern the legal relationship between the parties in so far as this is necessary to settle that contract.
Article 3 Offers / Conclusion of Contracts / Changes / Additional Work
3.1 All offers, made separately or otherwise, will be free of obligation, unless explicitly stated otherwise in writing. User will be entitled to withdraw an offer it has made. Offers will not automatically apply to further (different) contracts possibly concluded by the parties in the future. Every offer is based (partly) on the (faithfulness of the) relevant information, facts, materials and/or documents provided orally or in writing by Other Party. Other Party warrants the accuracy and completeness thereof. User will not be subject to its own obligation to investigate this.
3.2 All contracts will bind User only after User has confirmed them in writing, the parties have signed the contract or after User has started to perform the relevant work.
3.3 A departure from an offer made will be binding on User only if User has confirmed this departure in writing or User has agreed to it in writing.
3.4 Barring explicit, written confirmation on the part of User, the latter will not be bound in any way by alleged oral commitments made on the part of User or by alleged agreements between Other Party and subordinate members of User’s staff.
3.5 Changes to a concluded contract will have effect only if the parties have agreed them in writing. If during the performance of the agreed work, it should prove necessary for the proper (further) performance of that work to change or supplement the agreements, the parties will adjust the contract accordingly in consultation. Any additional costs resulting from necessary change or adjustment will be payable by Other Party
Article 4 Prices
4.1 Quotes made will always be free of obligation and subject to interim price adjustments. Unless expressly stated otherwise, prices quoted will be based on the cost price factors prevailing at the time the contract is concluded, including purchase prices. If after an offer is made or after a contract is concluded, one or more of the relevant cost price factors should prove to be increased, for example in case of an increase in taxes, import duties, changes to exchange rates, government levies, the entry into effect of cost-increasing government rules and regulations, increase in the prices of materials, raw materials, wage increases or otherwise, User will be entitled to increase the prices accordingly, with due observance of any relevant, applicable statutory provisions, unless explicitly agreed otherwise. Such a permissible price increase will not entitle Other Party to cancel the contract.
4.2 Unless explicitly stated otherwise, all prices offered or agreed are always exclusive of VAT and any other government levies, thus also exclusive of transport, packing, delivery, service and maintenance costs. The relevant prices will be stated in euros, unless indicated otherwise.
4.3 An offer or quote made will not oblige User to perform part of the offered work at a corresponding part of the price quoted for the whole. Quotes or offers will not apply automatically to any repeat orders.
Article 5 Start of Work / Performance of the Contract/ Delivery Charges
5.1 The delivery period given by User for the work to be performed will always apply (only) by approximation and is therefore not a deadline within the meaning of the law, unless explicitly agreed otherwise in writing. Merely exceeding the agreed period, whatever the cause, will not mean that User is in default and will therefore not oblige User to compensate any loss sustained by Other Party, nor will it give the Other Party any right to rescind the contract or entitle the Other Party to suspend its own obligations under one or more contracts existing between the parties. In certain circumstances, User can be put in default only after a written notice of default allowing a reasonable time for compliance, which is subsequently not observed. For that matter, an agreed delivery time will start to run only after User has received all necessary information from Other Party. If the information needed to perform the contract is not provided to User in good time, User will be entitled to suspend performance of the contract and, moreover, to recover the additional costs resulting from the delay from the Other Party.
5.2 User will carry out the work to be performed to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. User will be entitled to have the work it is to perform carried out wholly or in part by one or more third parties. Other Party indemnifies User for any claims of a third party which incurs losses in connection with the performance of the contract, which loss is also attributable to Other Party.
5.3 User will be entitled to perform the work in parts. If it has been agreed that the work will be done in stages, User can and may suspend the work of those parts which belongs to the next stage until Other Party has approved the results of the preceding stage in writing.
5.4 Other party must at all times ensure a good and constant accessibility of the place(s) where the contract must be performed.
5.5 Other Party must inform User on its own and without delay of facts and circumstances which are or could be important in connection with the performance of the contract.
5.6 If a sample or model has been shown and/or provided to Other Party, it will be presumed to have been provided only as an indication without the item having to correspond thereto, unless it was explicitly agreed that the item would correspond thereto.
5.7 Delivery will be made ex factory of User. Transport or delivery charges of the goods to be delivered will be payable by Other Party and will be charged to Other Party in addition to the agreed price.
Article 6 Force majeure
6.1 Should the contract prove not to be performable as a result of force majeure or comparable circumstances - of such a nature that performance of the contract is impossible or cannot or can no longer be required according to the criteria of reasonableness and fairness - User will be entitled at its own discretion to consider the contract rescinded without User being liable for any compensation, except pursuant to the provisions of Article 78 of Book 6 of the Dutch Civil Code (Burgerlijk Wetboek) and with retention of the right to payment in proportion - if applicable - to the part of the contract already performed or, in case of temporary force majeure, User will be entitled to suspend the (further) performance of the contract for 2 months at most without being liable for any compensation.
6.2 If the contract still cannot be performed after expiry of the aforementioned period of 2 months at most as a result of force majeure or comparable circumstances, User will then be entitled to consider the contract rescinded without being liable for any compensation.
6.3 In these General Terms and Conditions, force majeure means any circumstances or complex of circumstances beyond User’s control which prevents User permanently or temporarily from complying with one or more of its obligations under the contract. In addition to its meaning in the law and case law, force majeure will be involved at any rate (but not exclusively) if, after concluding the contract, User is temporarily or permanently prevented from fulfilling or preparing to fulfil its obligations under the relevant contract in case of a strike or sit-down strike (at User as well as at companies on which User depends for the performance of the contract), import and export obstacles, government measures, disruptions in the supply of energy, war in which the Netherlands is involved or not, threat of war, mobilisation, announcement of a state of war or siege, riot, government measures that hinder the performance of the contract, lockout, stagnation in the supply of materials to User, traffic (tailback) or other transport problems, fire, flooding, water damage, exceptional weather conditions and all other circumstances at User’s company or at the company or companies of its supplier(s) which are beyond User’s control.
6.4 User will also be entitled to invoke force majeure if the circumstance preventing (further) performance occurs after User should have complied with its obligation.
Article 7 Payment
7.1 Unless agreed otherwise, payment must be made within 30 days of the invoice date, either in cash or in another way to be determined and specified by User, for example by transfer to a bank account to be indicated by User.
7.2 A complaint relating to an invoice must be submitted to User in writing within 7 days of receipt of the invoice, subject to lapse of the right to do so. Other Party will not be entitled to suspend its payment obligation in the event of a complaint or to invoke setoff. Consequently, Other Party is not entitled to deduct an alleged counterclaim.
7.3 User will be entitled at all times during the performance of the contract, but also already prior to its performance, to demand sufficient security for the payment of its claim(s) or payment in advance (in full or in part), whether or not in cash. In the event of refusal or inability to provide appropriate security, for example by a suretyship agreement, bank guarantee, security deposit or full or partial payment in advance, User will be entitled to rescind the contract without judicial intervention (without Other Party acquiring a right to compensation in that connection) and if desired - if applicable - to take back already delivered goods, all this without prejudice to User’s right to compensation.
7.4 In the event of late payment, Other Party will be in default by operation of law and User will automatically be entitled to statutory interest, without a demand letter or notice of default being required, from the due date of the relevant invoice or the agreed time of payment until the day of payment in full. In that case, all other claims of User against Other Party will be immediately due and payable as well, in so far as that was not already the case, and User will also be in default with respect to those claims without separate notice of default. Payment obligations of Other Party towards User are debts payable at the creditor’s address.
7.5 Furthermore, should Other Party not comply with its payment obligation in time, completely or at all, it will also have to pay the out-of-court costs subsequently to be incurred in all reasonableness by User. These extrajudicial costs, which in that case will be considered financial loss (pursuant to Article 6:96 (2)(c) of the Dutch Civil Code) on the part of User, will be fixed at a percentage of 15% of the total due, notwithstanding User’s right to demonstrate that such financial loss in a particular case exceeds 15% of the amount due. All court costs reasonably to be incurred by User will also be payable in full by Other Party, also the costs User might incur in connection with pending court proceedings and which exceed the amount of legal costs ultimately determined by the court (the so-called assessed legal costs), the latter in a situation in which the court finds fully or mainly in favour of User.
7.6 The payments made by Other Party will always serve first of all to settle all interest and costs due and secondly to settle due and payable invoices which have been outstanding for the longest time, even if Other Party states that any payment relates to another invoice.
7.7 In cases that arise, User will be entitled to invoice in the interim - in parts.
Article 8 Storage / Risk / Retention of Title / Right of Retention
8.1 When goods are delivered, in case Other Party does not take or want to take delivery of them in time, properly or at all, or fails to provide information or instructions necessary for the delivery, User will be entitled to store the goods at Other Party’s expense and risk.
8.2 The risk of goods purchased by Other Party will pass to the latter at the time the goods are actually delivered to Other Party and are therefore put under Other Party’s actual control. Except for the provisions below in paragraph 3 of this article, the title to the goods purchased by Other Party will also pass at the same time.
8.3 In departure from the second sentence of the preceding paragraph, as long as Other Party has not complied with all its obligations towards User under the contract in question, previous contracts or with respect to claims of User against Other Party on any basis, or has not provided sufficient (continuing) security for this, User will retain the title to all sold and delivered goods. The title to purchased goods will pass to Other Party only as soon as the latter has complied with all its obligations towards User. In case User actually wants to exercise its ownership rights, if such a situation arises, Other Party gives unconditional and irrevocable permission to User or a third party to be indicated by the latter to enter all places where items of User’s property are located and take them back. Other party must fully cooperate immediately at User’s request in effecting the right of repossession, subject to forfeiture of a penalty of 10% of the amount due per day as long as Other Party fails to do so. All costs arising from effecting the right of repossession will be payable by Other Party. Other Party will also have to compensate User in full for losses incurred by User (including lost profits) as a result of such nonpayment. Goods delivered by User may be resold, delivered, treated and processed or used by Other Party only in the context of the latter’s normal business operations. Other Party will not in any way have the right to alienate or encumber these goods by a restricted right of security or enjoyment or otherwise withdraw them from recovery by User. Other Party undertakes to insure and keep insured adequately the goods delivered under retention of title. Other Party must allow User to inspect the policy immediately at User’s request. In case of attachment or threatened attachment of goods delivered to Other Party under retention of title, Other Party must inform User to that effect immediately by telephone and in writing.
Article 9 Liability
9.1 Except in case of a wilful act or gross negligence on the part of User - including its management employees, but explicitly not (including) persons engaged by User who are not management employees - User will never be liable for any damage and/or loss to be suffered by Other Party. The burden of proof with respect to such wilful act or gross negligence on the part of User or its management staff will be on the Other Party.
9.2 Notwithstanding the foregoing, User will never accept liability for errors or defects in information presented by third parties.
9.3 Should User prove to be liable to Other Party, its liability will be limited in all cases to direct damage and/or loss and User will never be liable to compensate an amount of loss exceeding twice the invoice amount (exclusive of VAT) in relation to the relevant work from which the liability might arise, or, should User’s Liability be insured and the insurer also pays, an amount not exceeding the amount actually to be paid by the insurer. Any other or more far-reaching liability is explicitly excluded. User will therefore never be liable for any damage and/or loss of Other Party if such damage and/or loss can be considered indirect, such as for example consequential damage and/or loss, lost profits, trading loss or environmental damage or loss arising from liability to third parties.
9.4 Other Party must indemnify User for all claims of third parties (including an insurer of Other Party that takes legal action for the purpose of recourse) in relation to goods delivered by User to Other Party or work performed or services provided by User for Other Party under the contract, as a result of which those third parties might have suffered damage and/or loss.
Article 10 Complaints
10.1 User will handle complaints about the quality of the goods delivered only if User is informed of them in writing within 7 days after the Other Party discovered them or reasonably could have discovered them (i.e. during normal inspection), together with a sound, detailed statement of the nature and scope of the complaint, subject to lapse of its right. Late complaint means that the work performed by User will be deemed as accepted and approved. Other Party must inspect the goods delivered for defects or shortages immediately on delivery. Other Party must give User the opportunity to inspect the goods in order to check whether the complaint is well-founded or not. If a complaint is justified, User will only be required to deliver a different article that is indeed sound, to make an additional delivery or to perform the agreed work properly and correctly, all this without giving the other party a right to claim any compensation in addition.
10.2 Submitting a complaint will not release Other Party from its payment obligations towards User, nor will it give Other Party the right to suspend its payment obligations for the time being, let alone to rescind the contract.
Article 11 Cancellation
11.1 In case the Other Party wishes to cancel a contract concluded with User, User will nevertheless be entitled to require specific performance by Other Party.
11.2 Should User nevertheless be willing and able to consent to cancellation in a particular case, User will attach the condition at all times that Other Party must compensate User for an amount of damages fixed in advance (among other things to offset the profits to be lost) of 35% of what Other Party would have had to pay User if the contract had been performed, the latter without prejudice to User’s right to claim a higher amount of compensation than the fixed damages if User can demonstrate a loss exceeding the fixed damages as a result of the cancellation. In addition, User will have a claim for compensation of the costs yet to be incurred unexpectedly in relation to the cancellation. The foregoing does not affect the fact that User will be at liberty at all times to require specific performance from Other Party and User will therefore never be required to cooperate in cancellation.
Article 12 Miscellaneous: Rescission, Intellectual Property / Transfer
12.1 If Other Party does not fulfil any obligation arising from the contract concluded with User promptly, properly or at all, and in the situation that a well-founded fear exists that Other Party will not comply with its (payment) obligations, as well as in the situation in which Other Party is declared insolvent or its insolvency has been applied for, or Other Party itself applies for suspension of payment (temporary or not) or its insolvency, decides or proceeds to (partially) discontinue or liquidate its business, as well as if Other Party, a natural person, has his/her application to be allowed to participate in a debt management scheme approved by the court, any attachment is made at the expense of Other Party, or Other Party loses the power of disposition over his/her assets or parts thereof by a guardianship order or otherwise, Other Party will be deemed to be in default by operation of law and User, without notice of default and without requiring judicial intervention, will be entitled to suspend the performance of some, several or all obligations, on any basis, and/or - even if agreed otherwise - claim payment in cash for further performance on the part of User of any obligation, or to rescind the contract(s) wholly or in part or declare them rescinded, without User being liable for any compensation in that regard, all this without prejudice to any other right to which User is entitled, including User’s right to require compensation of the loss it will incur (compensation, including lost profits) as a result of rescission of the contract, but also its right, instead of rescission, to claim specific performance (with or without additional compensation). In all these cases, any claim User has against Other Party will be immediately due and payable in full.
12.2 Furthermore, User will be entitled to rescind the contract (or have it rescinded) if circumstances occur of such a nature that performance of the contract is impossible, or at any rate can no longer be required according to criteria of reasonableness and fairness, or if other circumstances occur of such a nature that continuation of the contract unchanged cannot be required (any more).
12.3 User explicitly reserves any intellectual or industrial property rights relating to goods delivered. Other Party will not acquire any entitlement at all in that regard, unless explicitly agreed otherwise.
12.4 Except in case of explicit, written permission from User, Other Party will not be allowed to transfer rights and/or obligations under the contract to third parties.
Article 13 Applicable Law / Disputes
13.1 Any disputes that might arise on the basis of contracts (or offers) to which these General Terms and Conditions apply (wholly or in part) or on the basis of a further contract which arises from such a contract, will be governed by Dutch law. Exclusively Dutch law will apply to contracts (and offers).
13.2 The applicability of the Vienna Sales Convention is excluded, unless the parties explicitly agree otherwise in a particular case. 13.3 Any disputes arising from the contracts or offers referred to in 13.1 will be judged in the first instance by the court with jurisdiction of the User’s place of establishment, to the exclusion of any other court, without prejudice to User’s right to bring the dispute before the court with jurisdiction in the Other Party’s place of establishment, or the court with jurisdiction according to the law or (in a particular case) the applicable international convention, and without prejudice to the parties’ possibility to apply for interim relief to the interim relief judge of the court where that relief must be effected.