These General Terms and Conditions (hereinafter: the "GTC") are applicable to each offer, designated offer and agreement between Robocopy B.V., hereinafter: "User", and a Principal, insofar Parties have not explicitly and in writing deviated from these GTC.
The present GTC are also applicable to agreements with User, for the execution of which by User third parties must be involved.
These GTC have also been written for the benefit of the employees of User, his directors and the third parties hired by User.
The applicability of possible purchase or other terms and conditions of Principal is explicitly rejected.
If one or more stipulations in these GTC should at any moment be invalid in whole or in part or be invalidated, then the remaining stipulations in these GTC will be fully applicable. User and the Principal shall then enter into consultation in order to agree upon new stipulations for the replacement of the invalid or invalidated stipulations, whereby as much as possible the purpose and the tenor of the original stipulations will be observed.
If lack of clarity exists regarding the interpretation of one or more stipulations of these GTC, then the interpretation must take place “in the spirit” of these stipulations.
If between Parties a situation occurs that is not regulated in these GTC, then this situation must be assessed according to the spirit of these GTC.
If User does not always require strict compliance with these GTC, then this does not mean that the stipulations thereof are not applicable, or that User in any degree would lose the right to require in other instances the precise compliance with the stipulations of these GTC.
Article 2. Designated offers and offers
All designated offers and offers of User are non-binding, unless in the designated offer a term for acceptation has been set. If no term for acceptation has been set, in no manner can any rights be derived from the designated offer or offer. User cannot be held to his designated offers or offers if the Principal reasonably can understand that the designated offers or offers, or a part thereof, contains an obvious mistake or error.
The prices stated in a designated offer or offer are exclusive of VAT and other levies by the government, possible costs to be made in the framework of the agreement, therein included travel and board, shipping and administration costs, unless stated differently.
If the acceptation (whether or not on minor points) deviates from the offering included in the designated offer or the offer then User is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptation, unless User indicates differently.
A composed price statement does not oblige User to the execution of a part of the commission against a proportional part of the stated price. Offers or designated offers do not automatically apply to future orders.
Article 3. Contract duration, terms of execution; risk transfer; execution and changing agreement; price increase
The agreement between User and the Principal is concluded for an undefined period, unless from the nature of the agreement it derives otherwise or if Parties explicitly and in writing agree differently.
If for the execution of certain activities or for the delivery of certain goods a term is agreed or stated, then this is never a fatal term. Upon exceeding of a term the Principal must therefore declare User in writing in default. User must thereby be offered a reasonable term to give execution after all to the agreement.
User shall execute the agreement to the best of his insights and abilities and in accordance with the requirements of good expertise. The one and the other on the basis of the state of science and technique known at that moment.
User has the right to let certain activities be executed by third parties. The applicability of articles 7:404, 7:407 section 2 and 7:409 Dutch Civil Code is explicitly excluded.
If by User or by third parties employed by in the framework of the commission activities are executed on the location of the Principal or a location designated by the Principal, then the Principal will arrange free of charge for the facilities desired by those employees in reasonableness.
User is authorised to execute the agreement in various phases and to invoice the thus executed part separately.
If the agreement will be executed in phases, then User can suspend the execution of those parts that belong to a following phase until the Principal has approved the results of the preceding phase in writing.
The Principal will ensure that all data, of which User indicates that these are necessary or of which the Principal reasonably should understand that these are necessary for the execution of the agreement, are provided timely to User. If the data required for the execution of the agreement have not timely been provided to User, then User has the right to suspend the execution of the agreement and/or to bring the extra costs deriving from the delay according to the then usual rates into account to the Principal. The term of execution does not start sooner than after the Principal has made the data available to User. User is not liable for damage, of whichever nature, because User relied on incorrect and/or incomplete data provided by the Principal.
If during the execution of the agreement it proves that it is necessary for a proper execution thereof to change or add to it, then Parties shall timely and in mutual consultation proceed to modification of the agreement. If the nature, scope or content of the agreement, whether or not upon request or direction of the Principal, of the competent authorities et cetera, is changed and the agreement is changed because of it in a qualitative and/or quantitative perspective, then this can have consequences for what was agreed originally. Because of it also the originally agreed amount can be increased or decreased. User shall thereof as much as possible give a price statement in advance. By a change of the agreement he originally stated term of execution can furthermore be changed. The Principal accepts the possibility of change of the agreement, therein included the change in price and term of execution.
If the agreement is changed, therein included an addition, then User is authorised to give execution thereto only after approval has been given by the person authorised within User and the Principal has agreed with the price and other terms and conditions stated for the execution, therein included the time then to be determined on which execution shall be given thereto. The non or not immediate execution of the changed agreement does not render a default by User and is for the Principal no ground to cancel or dissolve the agreement.
Without therewith coming into default, User can refuse a request to change of the agreement, if this in qualitative and/or quantitative perspective can have consequences for the activities to be executed or the goods to be delivered in that framework.
If the Principal should come into default with the proper compliance with what he is obliged towards User, then the Principal is liable for all damage at the side of User caused by it directly or indirectly.
If the price increase amounts other than as a consequence of a change of the agreement to more than 10% and takes place within three months after the conclusion of the agreement, then it is solely the Principal that has a claim to title 5 section 3 of Book 6 Dutch Civil Code to dissolve the agreement by a written declaration, unless User
then after all is willing to execute the agreement on the basis of the originally agreed;
if the price increase derives from an authority or a lawful obligation resting on User;
if it has been stipulated that the delivery shall take place longer than three months after the conclusion of the agreement;
or, in case of delivery of a good, if it has been stipulated that the delivery shall take place longer than three months after the purchase.
Article 4. Suspension, dissolution and in-between cancellation of the agreement
User is authorised to suspend the compliance with the obligations or to dissolve the agreement, if: the Principal does not, not fully or not timely comply with the obligations from the agreement; circumstances come to the knowledge of User after the conclusion of the agreement gives good ground to fear that the Principal shall not comply with the obligations; if the Principal has been requested at the conclusion of the agreement to provide surety for the compliance with his obligations from the agreement and this surety remains absent or is insufficient or if by the delay at the side of the Principal it cannot be required any longer of User that he shall comply with the agreement against the originally agreed conditions.
Furthermore User is authorised to dissolve the agreement if circumstances arise which are of such nature that compliance with the agreement is impossible or if otherwise circumstances arise that are of such a nature that an unchanged maintaining of the agreement in reasonableness cannot be required of User.
If the agreement is dissolved, the claims of User on the Principal are payable immediately upon demand. If User suspends the compliance with the obligations, then he retains his claims under the law and agreement.
If User proceeds to suspension or dissolution, then he is in no manner liable to compensation of damage and costs emerged in any manner because of it.
If the dissolution is imputable to the Principal, the User is entitled to compensation of the damage, therein included the costs, emerged directly and indirectly because of it.
The compensation of damages referred to in the previous section of this article shall at least include the costs deriving from the legal relations concluded by User in his own name for the fulfilment of the commission with third parties, as well as 50% of the remaining part of the fees which the Principal would be due upon complete fulfilment of the commission.
If the Principal does not comply with his obligations deriving from the agreement and this non-compliance justifies dissolution, then User is authorised to dissolve the agreement directly and with immediate effect without any obligation on his side to payment of any compensation of damages or indemnification, while the Principal, on the basis of default, actually is held to compensation of damages or indemnification.
If the agreement is cancelled in-between by User, User shall in consultation with the Principal arrange for assignment of activities yet to be executed to third parties. This unless the cancellation is imputable to the Principal. If the assignment of the activities brings along extra costs for User, then these will be brought into account to the Principal. The Principal is required to pay these costs within the term stated therefore, unless User indicates differently.
In case of liquidation, of (filing for) suspension of payment or bankruptcy, of attachment - if and insofar the attachment is not relieved within three months – against the Principal, of debt sanitisation or another circumstance because of which the Principal can no longer dispose freely over its assets, then the User has the liberty to cancel the agreement directly and with immediate effect or to cancel the order or agreement, without any obligation on his side to payment of any compensation of damages or indemnification. The claims of User on the Principal are in that case immediately payable upon demand.
If the Principal cancels a placed order in whole or in part, then the activities that were executed and the goods ordered or prepared for it, increased with the possible transport and delivery costs thereof and the work time reserved for the execution of the agreement, shall be brought into account integrally to the Principal.
Article 5. Force Majeure
User is not bound to the compliance with any obligation towards the Principal if he thereto is hindered as a consequence of a circumstance that is not due to a fault, and neither by the law, a legal act or views in business come for his account.
Under Force Majeure will in these GTC be understood, in addition to what is understood in that regarding in the law and jurisprudence, all external causes, foreseen or not foreseen, on which User can exercise no influence, but because of which User is not able to comply with his obligations. Work strikes in the enterprise of User or of third parties therein included. User also has the right to claim Force Majeure if the circumstance that prevents (further) compliance with the agreement, arises after User should have complied with his obligation.
User can during the period that the Force Majeure lasts, suspend the obligations from the agreement. If this period lasts longer than two months, then each of the Parties authorised the agreement to dissolve, without obligation to compensation of damages to the other Party.
Insofar User at the time of the emergence of Force Majeure has partially complied with his obligations from the agreement or shall be able to comply with these, and to the complied with respectively to be complied with part an independent value is related, then User is authorised to invoice the already complied with part respectively to be complied with part separately. The Principal is required to pay this invoice as if there were an instance of a separate agreement.
Article 6. Payment and collection costs
Payment must always take place within 14 days after the date of the invoice, in a manner to be stated by User in the currency in which was invoiced, unless stated in writing differently by User. User is authorised to invoice periodically.
If the Principal remains in default with the timely payment of an invoice, then the Principal is in default by law. The Principal is then liable to pay an interest of 1% per month of the total outstanding amount, unless the interest by law is higher, in which case the interest by law is due. The interest over the amount payable upon demand shall be calculated from the moment that the Principal is in default till the moment of satisfaction of the fully due amount.
User has the right to let the payments made by Principal in the first place in reduction of the costs, subsequently in reduction of the appeared interest and finally in reduction of the principal amount and the current interest. User can, without entering into default because of it, refuse an offer to payment, if the Principal states another order for the allocation of the payment. User can refuse full redemption of the principal amount, if thereby not also the appeared and current interest and collection costs are paid.
The Principal is never authorised to settlement of the amounts due by him to User. Objections against the height of an invoice do not suspend the payment obligation. The Principal that has no claim on section 6.5.3 (the articles 231 to 247 book 6 Dutch Civil Code) is neither authorised to suspend the payment of an invoice for another reason.
If the Principal comes short or is in default with the (timely) compliance with his obligations, then all reasonable costs to obtain satisfaction out-of-court shall be for the account of the Principal. They are calculated on the basis of what is customary in the Netherlands collection practice, currently the calculation method according to Rapport Voorwerk II. If User however has made higher costs for collection that were reasonably necessary, then the really made costs are eligible for compensation. The possibly made court and execution costs shall also be redeemed from the Principal. The Principal is also liable to pay interest over the due collection costs.
Article 7. Retention of ownership
The delivered by User in the framework of the agreement remains the property of User till the Principal has complied properly with all obligations from the agreement(s) with User.
The delivered by User, that according to section 1. Falls under the retention of ownership, may not be sold onward and may never be used as a payment instrument. The Principal is not authorised to put a lien on the goods falling under the retention of ownership or to encumber them in any other manner.
The Principal must always do all that reasonably may be expected of him to safeguard the property rights of User. If third parties place an attachment on the delivered under retention of ownership or wish to vest rights thereon, then the Principal is obliged to notify User thereof immediately. Furthermore the Principal obliges to insure and keep insured the delivered under retention of ownership against fire, explosion and water damage as well as against theft and to give the policy of this insurance upon first request to User for viewing. In case of a possible pay-out by the insurer, then User is entitled to these monies. To the extent required, the Principal commits towards User in advance to give his cooperation to all that might (prove to) be necessary or desirable in that framework.
In case User wishes to exercise his property rights set forth in this article, the Principal gives in advance an unconditional and irrevocable permission to User and third parties to be designated by User to access all those places where the properties of User are located and to repossess these.
Article 8. Warranties, examination and reclamations, statute of limitations
The goods to be delivered by User meet the usual requirements and norms that may reasonably be set thereto on the moment of delivery and for which they are destined during normal use in the Netherlands. The warranty mentioned in this article is applicable to goods that are destined for the use within the Netherlands. In case of use outside the Netherlands the Principal must verify by himself whether the use thereof is suitable for the use over there and meet the requirements that are set thereto. User can in that case set warranty and other terms and conditions regarding the goods to be delivered or activities to be executed.
The warranty mentioned in section 1 of this article is valid for a period of one year after delivery, unless from the nature of the delivered something else derives or Parties have agreed differently. If the warranty provided by User concerns a good that was produced by a third party, then the warranty is limited to that, which is given by the producer of the good, unless stated differently.
Any form of warranty is forfeited if a defect is emerged as a consequence of or derives from inexpert or improper use thereof or use after the best before date, incorrect storage or maintenance thereof by the Principal and/or by third parties when, without written permission of User, the Principal or third parties have introduced changes to the good or have tried to, other goods were attached to it that should not be attached to it or if these were processed or treated in another manner than prescribed. The Principal has neither a claim to warranty if the defect has emerged by or is the consequence of circumstances on which User can exercise no influence, therein included weather circumstances (such as for instance, but not solely, extreme rain fall or temperatures) et cetera.
The Principal is required to (let) examine the delivered, immediately on the moment that the goods are made available to him respectively the concerned activities have been executed. Thereby the Principal should examine whether the quality and/or quantity of the delivered is in accordance with what is agreed and meets the requirements that Parties have agreed in that respect. Possible visible defects must be reported within seven days after delivery in writing to User. Possible not visible defects must immediately, but in any case no later than within fourteen days, after discovery thereof, be reported in writing to User. The notification must contain a description as detailed as possible of the defect, so that User is able to respond adequately. The Principal must enable User to (let) examine a complaint.
If the Principal timely makes a reclamation, then this does not suspend his payment obligation. The Principal remains in that case also obliged to take off and payment of the otherwise ordered goods and what whereto he has given User a commission.
If of a defect a later notification takes place, then the Principal has no right anymore to repair, replacement or indemnification.
If it is established that a good is defective and in that respect timely a reclamation has been made, then User shall after written notification regarding the defect by the Principal, at the discretion of User, replace or arrange for the replacement of the defective good within reasonable term after having received it back or, if returning is reasonably not possible, give replacing compensation therefore to the Principal. In case of replacement the Principal is required to return the replaced good to User and to provide the property thereof to User, unless User indicates differently.
If it is established that a complaint is unfounded, then the costs emerged by it, therein included the examination costs at the side of User, shall be integrally for the account of the Principal.
After expiry of the warranty period, all costs for repair or replacement, inclusive of administration, shipping and show-up costs, shall be brought into account to the Principal.
In deviation of the statutes of limitations by law, the statute of limitations of all claims and defences towards User and the third parties involved by User in the execution of an agreement, is one year.
Article 9. Liability
If User should be liable, then this liability is limited to what is regulated in these stipulations.
User is not liable for damage, of whichever nature, emerged because User has relied on incorrect and/or incomplete data provided by or behalf of the Principal.
If User should be liable for any damage, then the liability of User is limited to the maximum of twice the value of the invoice of the order, at least to that part of the order to which the liability relates.
The liability of User is in any case always limited to the amount of the pay-out of his insurer in a prevalent case.
User is solely liable for direct damage.
Under direct damage is solely understood the reasonable costs for the establishment of the cause and the scope of the damage, insofar the establishment relates to damage in the sense of these GTC, the possible reasonable costs made to let the defective performance of User meet the agreement, to the extent that these can be imputed to User and reasonable costs, made for the prevention or limitation of damage, insofar the Principal demonstrates that these costs have led to limitation of direct damage as referred to in these GTC. User is never liable for indirect damage, therein included consequential damage, missed profits, missed savings and damage by enterprise stagnation.
The limitations of the liability included in this article do not apply if the damage is due to wilful intent or gross fault by User or his managing subordinates.
Article 10. Safeguard for claims with regard to use production
The Principal safeguards User or persons employed by User in the commission against all claims of third parties deriving from applications or the use of the result of the commission.
The Principal safeguards User against claims with regard to rights of intellectual property on materials or data provided by the Principal that are used in the execution of the commission. The Principal safeguards User against possible claims of third parties, that suffer damage in relation to the execution of the agreement and of which the cause is imputable to others than to User. If User on that basis would be held liable by third parties, then the Principal is required to assist User both out-of or in-court and to do without delay all that may be expected of him in that case. Should the Principal remain in default in the taking of adequate measures, then User, without notification of default, is authorised to proceed thereto by himself. All costs and damage at the side of User and third parties emerged because of it, shall be integrally for the account and the risk of the Principal.
Article 11. Intellectual property
User reserves the rights and authorities that belong to him on the basis of the Dutch Law Auteurswet and other intellectual law and regulations. User has the right to use the knowledge increased by the execution of an agreement at his side also for other purposes, insofar hereby no strictly confidential information of the Principal is brought to the knowledge of third parties.
Article 12. More contractors
When the Principal wishes to grant a similar commission at the same time to others than this contractor, he must notify User hereof, stating the names of these others.
Article 13. Same commission earlier granted to another
If a Principal has granted a similar commission already earlier to another, then he must notify User hereof, stating the name of this other.
Article 14. Changes in a commission; time saving, extra work, examination by an accountant
If a Principal wishes to shorten the delivery time of a commission, then User is authorised to bring the related higher costs above the agreed price into account.
If User is necessitated by the not timely or non-delivery of complete, proper and clear data/materials or by a changed or incorrect commission or briefing, to execute more or other activities, then these activities shall be compensated separately, on the basis of the fees customarily applied by User.
If the fee in any manner has been made dependent on facts or circumstances that must show from the administration of the Principal then User has the right after a statement by the Principal to let the administration of the Principal be audited by a chartered accountant. If from such an audit it shows that the statement of the Principal is not in accordance with the actual course of matters, then the costs of this audit shall be for the account of the Principal.
Article 15 Use and Licence
The Principal is, without the written permission of User, not authorised to use the production for a broader scope than what has been agreed.
Unless agreed otherwise, it is not permitted for the Principal to, without written permission of User, introduce or let introduce changes in the provisional or final productions.
User has, taking into account the interests of the Principal, the liberty to use the production for his own publicity or promotion.
Article 16 Applicable law and disputes
All legal relations to which User is a Party, are solely governed by the Laws of the Netherlands, also if execution is given to a legal obligation in whole or in part abroad or if the Party involved in the legal relation has his residence over there. The applicability of the Vienna Purchase Treaty is excluded.
The court in the city of the legal seat of User is authorised by exception to take knowledge of disputes, unless the law mandatorily prescribes otherwise. Nevertheless User has the right to submit the dispute to the court competent according to the law.
Parties shall only turn to the court after they have made an ultimate effort to resolve a dispute in mutual consultation.